Contribution to the Evaluation of the Directive on Combating Terrorism [Directive (EU) 2017/541]
A group of eleven french NGOs – including Première Urgence Internationale – contributed to the Evaluation of the Directive on Combating Terrorism [Directive (EU) 2017/541].
Introduction: legal framework for the fight against terrorism and obstacles to humanitarian action
Directive (EU) 2017/541 of the European Parliament and of the Council of March 15, 2017 on combatting terrorism contributes to strengthening the legal framework for the fight against terrorism and the financing of terrorism within the European Union.
Although essential to maintaining peace and security, legislative instruments relating to combatting terrorism developed in recent years are not without impact on the activities of international solidarity organizations recognized under French law, including impartial humanitarian organizations recognized by international law, including international humanitarian law, the purpose of which is to provide assistance to vulnerable persons. Among other things, they impact the effectiveness and impartiality of humanitarian action, and in particular, humanitarian access: by criminalizing all forms of “support” or “services” provided to groups designated as terrorists, they hinder humanitarian activities that are legal under international law and humanitarian principles.
First, sanctions regimes and restrictive measures limit the ability of international solidarity organizations, including impartial humanitarian organizations, to provide aid in certain areas under the control of a so-called “terrorist” group and prohibit contact with these groups, restricting de facto access and intervention capacities of these organizations.
Second, these regimes and measures create a security bias for field workers by reducing the acceptability and access of populations to aid, which can be perceived as one-sided or non-neutral.
Third, the compliance required by these regimes and measures requires resources and generates additional costs, diverted to administrative mechanisms or legal support, which delay and complicate international solidarity action, including humanitarian action. Thus, the banking sector, to guard itself against any prosecution, in connection with the principle of the extra-territoriality of national anti-terrorist legislation, practices “over-compliance”, limiting or even refusing to some international solidarity organizations, including impartial humanitarian organizations, to transfer funds to countries under sanctions.
Finally, these regimes and measures indirectly impact the ability of populations to move, trade or cultivate, and de facto their standard of living and resilience capacity, irrespective of their individual freedoms.
1. Humanitarian exemption clause: a major step forward in the protection of humanitarian space
Directive (EU) 2017/541 stands out as a reference text by introducing in recital 37 a safeguard clause for the application of humanitarian law in the event of conflict and in recital 38 a humanitarian exemption clause aimed at excluding humanitarian activities carried out by impartial humanitarian organizations recognized by international law, including IHL, from the scope of the Directive.
This clause represents a major step forward by recognizing the specificity of humanitarian organizations, and responds to the recommendations of the European Commission and the Financial Action Task Force (FATF) which recommend that non-profit organizations be taken into account in measures to combat the financing of terrorism, with a risk-based approach, and targeted and proportionate measures.
In 2019, Resolution 2462 (2019) of the United Nations Security Council, a binding resolution which calls on States to respect international humanitarian law in the context of the fight against terrorism and to take into account the effects that these measures could have on impartial humanitarian activities, built on the same recommendation.
The introduction of this clause in the preamble of Directive (EU) 2017/541 reflects an increasingly asserted will by the European Union to promote respect for international humanitarian law to make the humanitarian space safe and secure for principled humanitarian action. In recent years, the European Council has thus reaffirmed on several occasions (in its conclusions on humanitarian aid and international humanitarian law in November 2019 and those on the EU’s external action in combatting terrorism in June 2020), the need to take into account the effects of measures aimed at combating terrorism on humanitarian activities, and the importance for States to take restrictive measures in accordance with all their obligations under international law, in particular international human rights law, international refugee law and international humanitarian law. In its “Communication to the European Parliament and the Council on the EU’s humanitarian action: new challenges, same principles” of March 10, 2021, the European Commission also recalled the importance of supporting partners and the need to strengthen its action to ensure systematic inclusion of humanitarian exemptions in European sanctions regimes and restrictive measures.
However, the scope of this exemption clause remains relative due to the absence of its transposition into domestic law by Member States and a lack of affirmation by the EU on its desire to preserve the action of international solidarity organizations, including impartial humanitarian organizations, when faced with measures to combat terrorism and money laundering.
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