The US anti-terrorism laws introduced since the World Trade Centre attacks are a minefield for humanitarian agencies and international NGOs, varying widely in their application from one country to another and targeting a whole variety of different political groups and individuals. According to a recent academic paper, one international humanitarian NGO* reported “its headquarters office has six staff members working full-time on grant compliance and reporting relating to anti-diversion policies (two of those staff members spend the majority of their time screening potential and current partners against procurement, counterterrorism, and other lists).”
Any guidance is clearly welcome, especially for the smaller charities, and the Humanitarian Policy Group (HPG), based at the Overseas Development Institute (ODI) in London, has now produced a paper Counter-Terrorism Laws and Regulations - What Aid Agencies Need to Know.
Sara Pantuliano, the HPG director, explains: “There's been a lot of research done, a lot of analysis... But we felt there was a bit of a gap to help the practice community get more clarity on this issue. We hope that the paper really helps practitioners understand all these laws and all these measures out there.”
What they have produced is not exactly a handbook, and perhaps because its authors are lawyers, they warn that they are not telling people what to do or offering legal advice. Rather, the paper offers suggestions on what NGOs should be thinking about - identifying which parts of their programmes might be subject to sanctions and which country's laws apply, assessing whether they could benefit from humanitarian exemptions and so on, so that they don't run into trouble with the law, but also so that they don't let a general nervousness about the issue hamper their work unnecessarily.
No ban on talking
For instance, even where the law forbids giving resources to banned organizations, you can still talk to them, still negotiate with them, and that in itself may be crucial in those parts of the world where, increasingly, such organizations or armed groups are seeking to control territory and establish some kind of administration. But the inhibiting effect of anti-terrorism laws is such that many NGOs are wary of doing even that.
Humanitarian organizations trying to comply with the law have to decide whose law they are complying with - the country where they operate, the country where they are headquartered or the country which is providing them with funding? New Zealand, for instance, offers a humanitarian exemption for food, clothing or medicine to meet the essential human needs; the USA does not.
At a meeting in London to discuss the new paper, participants were keen to look at the way this variation in law could provide opportunities as well as just headaches. Joe Press, a researcher at Royal Holloway College, told IRIN: “Maybe the financial sector has something to teach us here. Maybe you can move your operation - you 'Google' to Luxembourg, you 'Amazon' to wherever, you change your legal framework.”
That might be considered extreme, but Abdurahman Sharif, of the Muslim Charities Forum, confirmed that in the case of Syria, NGOs were already having to pick and choose between donors to comply with donor demands and still keep operating. “In Syria we are talking about one of the biggest humanitarian catastrophes ever, and unfortunately agencies have had to refuse money from certain donors to be able to operate in certain areas. And those tend to be the larger, more established organizations; medium or small organizations don't necessarily have that choice.”
Conflicts with international humanitarian law
As well as often conflicting with each other, these new anti-terrorism provisions may conflict with international humanitarian law, such as the rule that all wounded shall be treated without distinction. Yet in the case of a wounded commander from a group on the proscribed list, the act of offering medical assistance could be criminalized as a form of material support. The sentiment at the London meeting was very much in favour of treating the wounded regardless of this. “The whole basis of international humanitarian law when it was first established was to help wounded soldiers,” said the ODI's Scarlett Sturridge. “So if an organization is going to take that as its principle, then they should uphold it.” The authors of the paper invite NGOs to think about whether they have any “red lines” which they wouldn't cross; this may well be one of them.
Another issue raised in the paper is whether, if you do break these anti-terrorism regulations, you will actually be prosecuted. The report points out that, in general, humanitarian organizations have not been prosecuted, even where they have been in violation of anti-terrorism regulations, but says this “illegal in theory, tolerated in practice” situation is far from satisfactory. “The fact remains that it is undesirable to have individuals or groups engaging in possible violation of the criminal law... Criminal law is intended to instruct society not to engage in particular acts, regardless of whether those people expect to be prosecuted. The current approach engenders uncertainty and confusion.”
One thing which emerged clearly from both the paper and the discussion is that the implications of contravening anti-terrorism legislation go beyond official prosecution. The fallout can include having banking services withdrawn and serious reputational damage.
That is something which the London-based NGO Interpal knows only too well. Interpal works with Palestinians, and it was designated by the US Office of Foreign Exchange Control as an organization with which US citizens should not do business, because of alleged links with Hamas. Since then, despite being cleared of impropriety by the UK Charity Commission and winning libel suits against its detractors, it has suffered a barrage of hostile press and had its banking services withdrawn.
“We've already been designated in the US,” an Interpal projects officer told the meeting, “which means that our position is very different from anyone else's here. We have to work against that constantly, and there's very little redress, despite our being extremely stringent with how we work in Gaza and the West Bank. There's very little redress for charities which have been burned by the politics of counter terrorism.”
In practice the banking system has become counter-terrorism's chief enforcer. Tom Keatinge of the Royal United Services Institute worked in the sector for 20 years and says the banks' reaction is understandable, given that the NGO sector is not very profitable and the fines if banks get it wrong can run into the billions. “Banks are looking for opportunities to de-risk, and if you are sitting on the 31st floor of a tower block in Canary Wharf (London's financial district), and you're presented with a situation where a client may or may not be doing something which may or may not be illegal, in the context of various different laws which may or may not be compatible, that uncertainly generally leads to one very simple risk-management decision, and that is 'No'.”
* Due to an editing error, an earlier version of this article wrongly identified this NGO as Interaction. IRIN regrets the error.