Waiting for medical attention from the African Union Mission in Somalia (AMISOM) Waiting for medical attention from the African Union Mission in Somalia (AMISOM) Photo credit: UN Photo/Stuart Price
Counter-terrorism and humanitarian action
by Kate Mackintosh and Ingrid Macdonald August 2013

In early 2011, the Humanitarian Policy Group (HPG) and the Norwegian Refugee Council (NRC) hosted a workshop with members of the Inter-Agency Standing Committee (IASC) Humanitarian Space and Civil Military Relations Task Force on counter-terrorism and humanitarian action. Humanitarian practitioners had expressed concerns with the implications of counter-terrorism measures for humanitarian operations, particularly in contexts such as the Horn of Africa, occupied Palestinian territories (oPt) and Afghanistan. Overall, the workshop exposed deep levels of anxiety concerning perceived risks, a lack of clarity as to what the exact risks were and a culture of secrecy, including a ‘don’t ask, don’t tell’ attitude.

Practitioners are concerned that they could incur criminal liability by coming into contact or engaging with non-state armed actors listed as terrorist entities. They say that it is practically impossible to avoid all contact with non-state armed actors active in or in control of territory where humanitarian operations are taking place. In order to negotiate access to populations in need of assistance and protection, and to maintain the acceptance of local actors and the population, contact with non-state armed actors is crucial in facilitating safe and effective humanitarian responses. The core humanitarian principles – underpinned by international humanitarian law and UN General Assembly Resolution 46/182, as well as numerous other UN resolutions – require humanitarian actors to treat state and non-state parties to an armed conflict on an equal basis, and to respond to the needs of the civilian population, without consideration of political or other factors. Impartial humanitarian bodies may also engage with all conflict parties in order to negotiate access: in the language of the Geneva Conventions, to ‘offer their services’. (Their engagement ‘shall not affect the status of the parties to the conflict’.)+Common Article 3 to the Geneva Conventions of 1949. Counter-terrorism measures which seek to or may inadvertently prohibit or criminalise engagement for humanitarian purposes, or humanitarian activities, may therefore clash with the foundations and methods of principled humanitarian action.

Independent study on donor counterterrorism measures and humanitarian action

In response to these concerns, the Co-Chairs of the Task Force – NRC and the UN Office for the Coordination of Humanitarian Affairs (OCHA) – commissioned an independent study on the impact of donors’ counterterrorism measures on principled humanitarian action.

Led by independent experts Kate Mackintosh and Patrick Duplat, with the support of a team of researchers and the guidance of an expert Advisory Group, the report analyses relevant UN Security Council resolutions and sanctions regimes, as well as relevant counter-terrorism law in 15 jurisdictions, and reviews the resulting counter-terrorism policies of ten significant humanitarian donors, including some of the conditions imposed and actions taken in the context of counter-terrorism risk management. The report goes on to consider how humanitarian actors have reacted to such measures, and the impact on humanitarian operations in two case studies, Somalia and Palestine. It also offers recommendations to reduce the adverse impacts of counter-terrorism law and related donor measures on humanitarian action. The study has involved consultations with donors, UN and non-UN humanitarian actors and counter-terrorism bodies, and a session at the NRC Principles in Practice conference held in Brussels in December 2012.+See http://principlesinpractice.org and http://www.nrc.no. The study was published at ECOSOC on 17 July 2013.

Counter-terrorism laws and sanctions regimes

The study looks at global, regional and national sets of counter-terrorism laws and sanctions regimes. At the international level, the most influential instrument is UN Security Council Resolution 1373, adopted in September 2001 following the 9/11 attacks in the US. The resolution obliges states to implement measures to deny individuals or entities engaged in terrorism direct or indirect access to funds, financial assets or goods and services. Along with the International Convention for the Suppression of the Financing of Terrorism (one of 14 multilateral treaties addressing different aspects of terrorist acts), the resolution has influenced much counter-terrorist law and practice at national level. Significant non-legal measures include the UN General Assembly Global Counterterrorism Strategy and the Financial Action Task Force (FATF), an inter-governmental body established in 1989 to combat money laundering and terrorist financing.

At the national level, many criminal laws prohibit the provision of financial or other material support to terrorism. Some states require intent to support a terrorist act to attract criminal liability, whilst others only require knowledge that a group is listed and that it received contributions. In other words, once a group is designated terrorist, no intent to contribute to a crime or knowledge that commission of a crime would be assisted is generally required to prohibit support to the group. The UK goes further, as the provider need only have ‘reasonable cause to suspect’ that resources may be used in a criminal act, and in Australia it is sufficient to be ‘reckless’ as to whether funds will be used to facilitate or engage in a terrorist act. This significantly increases the possibility that humanitarian action, or ancillary engagement, could fall foul of the law.

Counter-terrorism sanctions consist of measures introduced by states that are designed to freeze assets and ensure that resources are not made available to a designated entity. In general, no intent to support terrorism is required to violate counter-terrorism sanctions. States can impose sanctions independently, or as part of regional or international bodies. The UN Security Council has imposed counter-terrorist sanctions on those associated with Al-Qaeda and the Taliban. Other UN sanctions regimes may be maintained for different reasons, but still apply to groups designated as terrorists by individual states, such as the Somalia UN sanctions regime, which targets Al-Shabaab (among others). Sanctions regimes generally include some kind of humanitarian exemption, such as that exceptionally introduced to the Somalia sanctions regime by UN Security Council Resolution 1916 in March 2010. In addition, licences may be available at national level for humanitarian actors (and others) to carry out limited activities in areas under the control of sanctioned entities. However, these licences can take a long time to obtain and are not always granted.

The study found that sanctions and counter-terrorism laws do not prohibit contact or engagement with non-state armed actors listed as terrorist entities for humanitarian purposes. Instead, most prohibitions focus on whether some form of material support is provided directly or inadvertently to the entity or those associated with it. The main challenge for engagement is in terms of donor policies; of particular note here is Gaza, where certain donors have sought to prohibit contact through contractual agreements, principally to avoid legitimising Hamas as the de facto authority.+The fear that humanitarian engagement may lend legitimacy to non-state armed actors was foreseen and allayed in the Geneva Conventions by the stipulation that such contact ‘shall not affect the status of the parties to the conflict’.

Donor policies and practices

Whilst the approach of the donors looked at in the study differs, it is clear that partners are expected to be aware of and respond to national counter-terrorism legislation and related risk management policies. Australia, Canada and the US insert counter-terrorism clauses in all funding agreements (the UK has discretion to insert clauses in ‘high-risk’ contexts). These clauses generally require humanitarian actors to be aware of counter-terrorism legislation and to take concrete steps to ensure that funds are not used directly or indirectly to support terrorism and/or designated groups. Most clauses also require that these obligations are passed on to implementing partners, contractors or sub-grantees. All require notification where funds are utilised by, or a ‘link’ discovered to, an entity designated as terrorist.

Donors may also use broader risk management frameworks, including partner accreditation schemes which assess compliance with counter-terrorism legislation (Australia), or require general compliance with policies related to partner risk management. Similarly, donors may have guidelines which refer to the need to be aware of national counter-terrorism legislation (Denmark, Canada, the EU, the Netherlands, the UK and the US). These frameworks place the burden on humanitarian partners to ensure compliance, and require procedures to be in place to mitigate risks.

Donors may also have direct oversight of humanitarian actors to ensure compliance, such as governmentmonitored restrictions on overseas financial transactions. Another example is formal or informal partner vetting, where specific information is required to vet a partner and determine its suitability against counter-terrorism guidelines. In the case of the US and the oPt, such vetting can extend to beneficiaries, meaning that people in need can be excluded from assistance if they are flagged as being associated with terrorism or designated terrorist groups.

The impact on humanitarian actors

The study found that counter-terrorism law and measures affect humanitarian action on three levels: structural, operational and internal.

Structural impacts include limitations on the ability of organisations to operate according to the principles of neutrality, impartiality and independence, and to meaningfully engage with local actors, which may influence how an organisation or sector is perceived. In Gaza, it appears that programmes are designed firstly to avoid contact with or support to Hamas, and only secondly to respond to humanitarian needs. In some cases, programmes exclude whole groups of people on the basis of their geographic location. The role of Palestinian NGOs has also diminished, with some refusing grants due to counter-terrorism clauses.+Ma’an Development Center, Matrix of Control: The Impact of Conditional Funding on Palestinian NGOs, August 2011. Local NGOs may also be excluded as some donors focus on larger, international partners which are seen as better able to implement counter-terrorism precautions.

Operational impacts include changes or restrictions in funding to specific geographic areas, beneficiaries or partners; changes or restrictions in programmes; selfcensorship or self-imposed restrictions; decisions not to take funding from certain donors; and the increased use of subcontracts as agencies seek to pass on the risks and liabilities to local implementing partners. In Somalia, there was a dramatic reduction in humanitarian funding to southern Somalia after Al-Shabaab was designated as a terrorist group, particularly from the US. Between 2008 and 2010, US aid to Somalia decreased by 88%, despite a severe food crisis.+IASC Real Time Evaluation of the Somalia Drought Crisis Response’, 31 May 2012, http://reliefweb.int/report/somalia/iasc-real-time-evaluation-humanitarian-response-horn-africa-drought-crisis-somalia-0. At least three NGOs stopped operating in southern Somalia in 2010, in part due to lack of funding. Some actors reported a ‘chilling effect’, where decisions regarding where and how to operate were made in part to minimise exposure to legal liability. In Gaza, the designation of Hamas as a terrorist group by some states has seen projects cut or blocked, programmes suspended and planning and programme design based on avoiding constraints rather than meeting needs. One NGO could not carry out a planned distribution to 2,000 families because it could not share its beneficiary list with the Hamas Ministry of Social Affairs. Another could not progress with a planned psychosocial project because a school headmaster was perceived as too senior in the Hamas administration. Self-imposed limitations are also common; one NGO has excluded two kindergartens from its school feeding programmes because of potential ties with Hamas. In Somalia, humanitarian actors do not propose certain projects as they are considered to pose too great a risk.

Internal impacts include slower operations and increased costs. Many agencies use a global database run by a private company to screen staff, contractors and partners against 179 terrorism lists. Islamic NGOs in Somalia report particular trouble receiving project funds due to international banking restrictions that delay disbursement. In both Gaza and Somalia, waivers entail burdensome procedures and it is not always clear what they cover. The combination of uncertainty and concern over legal liability also makes agencies reluctant to share information, and to coordinate and collaborate.

The impacts of counter-terrorism measures vary between different organisations. The UN (and to a certain extent the International Committee of the Red Cross (ICRC)) benefit from privileges and immunities not available to NGOs. UN agencies (sometimes collectively) negotiate more flexible counter-terrorism clauses directly with states, without engaging partners. Moreover, the application of national laws depends on where an organisation is based, and the nationality of its staff and donors. Islamic NGOs appear to face greater scrutiny from certain states and financial institutions in a general climate of suspicion towards Muslim charities.

Strategies to cope with counter-terrorism measures include a high level of self-limitation and self-censorship. Instances of over-compliance have resulted, as well as a stifling of the principled debates that would normally be expected from the humanitarian sector. Risks and liability are being passed on to local implementing partners through sub-contracts, and there is a lack of consistency across the various funding agreements, adding to the administrative burden, uncertainty and risks.

Conclusion

Sustained dialogue around the implications of counter-terrorism measures is required, both between humanitarian actors and donors and more broadly across the humanitarian, security and political sectors. Such exchanges should foster discussion on the impacts of counter-terrorism measures on humanitarian action, and promote understanding that the purpose of principled humanitarian action is to provide protection and assistance to populations affected by crisis, not to further the objectives of an armed group, whether designated terrorist or not.

Information sharing, increasing understanding of counter-terrorism measures, reducing fear and self-censorship and ensuring that operational staff have appropriate guidance and support are all crucial areas for improvement. Humanitarian actors must ensure that they have appropriate due diligence procedures in place to mitigate aid diversion, balanced against the trend to pass liability and risk on to implementing partners. Such initiatives are under way within the IASC Task Force on Humanitarian Space and Civil Military Relations. States should provide exemptions for humanitarian action so as not to hinder critical humanitarian work, and should take care not to undermine the valuable role played by national and local humanitarian actors in making response effective. Critical to this is allowing contact or engagement with non-state armed actors for humanitarian purposes, as provided for by international humanitarian law.

Kate Mackintosh and Patrick Duplat are lead authors of the independent study on donor counter-terrorism measures and humanitarian action. Ingrid Macdonald is Resident Representative Geneva, Norwegian Refugee Council. She supported the drafting of the article.