Implications of Counterterrorism Measures for Companies Operating in Armed Conflict Situations

by Foley Hoag LLP - Corporate Social Responsibility

U.S. domestic counterterrorism measures are a critical component of the U.S. national security framework. Since the U.S. Supreme Court's June 2010 decision in Holder v. Humanitarian Law Project, there has been renewed debate about the scope and impact of various U.S. measures including the Material Support Statute (18 U.S.C. § 2339B) and Executive Orders pursuant to the International Emergency Economic Powers Act (IEEPA) (50 U.S.C. § 1701 et seq). Generally speaking these measures restrict providing material support to groups, companies or individuals that are listed as foreign terrorist organizations and specially designated nationals.

These discussions of particular relevance to companies, including many in the mining and extractive industries, that operate in countries and areas where armed groups, companies and individuals that are listed by the U.S. government are active. The Material Support Statute criminalizes the provision of material support to listed terrorist organizations, as well as aiding and abetting or conspiracy in regards to the violation of the statute. Of course, very companies ever intend to provide material support to a listed entity; but the practical reality is that when operating in an area in which such entities are active even the most well-intentioned actor may have unintended or inadvertent engagement of a type that is prohibited.

Material support is defined broadly in the statute as:

"[A]ny property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials."

Also of note is the extraterritorial reach of the statute, which is not confined to U.S. nationals, or activities that take place only on U.S. territory:

"There is jurisdiction over an offense under subsection (a) if—
(A) an offender is a national of the United States . . . or an alien lawfully admitted for permanent residence in the United States . . .
(B) an offender is a stateless person whose habitual residence is in the United States;
(C) after the conduct required for the offense occurs an offender is brought into or found in the United States, even if the conduct required for the offense occurs outside the United States;
(D) the offense occurs in whole or in part within the United States;
(E) the offense occurs in or affects interstate or foreign commerce; or
(F) an offender aids or abets any person over whom jurisdiction exists under this paragraph in committing an offense under subsection (a) or conspires with any person over whom jurisdiction exists under this paragraph to commit an offense under subsection (a)."

In addition to the criminal sanctions of the Material Support Statute, a parallel framework overseen by the Office of Foreign Assets Control (OFAC) allows for the blocking of property and interests of various individuals, companies and groups listed by the Department of Treasury in coordination with the Secretary of State. Executive Orders like 13224 and May 2012 order regarding certain activities in Yemen allow for the freezing of assets of those listed, but these are subject to licenses that can be granted on various grounds.

A recent report I co-authored, Safeguarding Humanitarianism in Armed Conflict, laid out the challenges these measures present to international NGOs and UN agencies operating in armed conflicts. The hurdles are particularly acute in conflicts where the NGOs and agencies operate in areas where non-state armed groups that are listed as terrorist organizations by the U.S. government are present. In many cases these listed groups control territory, and because of this the practicalities of operating in such a situation often require some type of limited engagement with these groups. For instance, payment to a listed group, company or individual of a road toll, permit fee, licensing “tax,” etc., though perhaps operationally important would run afoul of the prohibitions contained in these measures.

These regulations, and the impact they have on the ability to operate in armed conflict situations, apply with equal force to companies and their employees. The practical reality of operating in an area in which a listed group is present raises the possibility that engagement—though not welcome and often unintended—may take place.

When assessing these challenges companies should consider the licensing framework of OFAC. This, however, is not a complete response because a license from OFAC has no bearing on the criminal framework pursuant to the Material Support Statute. Companies should ensure that due diligence procedures are adopted and implemented to prevent inadvertent violations of relevant prohibitions. Companies should be sure to stay up-to-date with political developments, including Executive Orders that are issued as part of evolving counterterrorism strategies.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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