Implications Of Counterterrorism Measures For Companies Operating In Armed Conflict Situations

Author:Ms Elizabeth Holland
Profession:Foley Hoag LLP

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...

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