Ten years have passed since the attacks on the World Trade Center - 10 years that have seen the enactment of more and more counter-terrorism laws that have entangled humanitarian organizations in a web of regulations and requirements, which add to their costs, slow down their transactions, and sow distrust between them and their local partners.
Their frustration is palpable. Jehangir Malik, the UK Director of Islamic Relief, told a meeting in London on 17 October, “At times I feel that we are so crippled that we should really be honest with our donors, and say, you know, pull out altogether and return everybody’s money to the respective donors.”
Malik was speaking at the launch of a paper on Counter-terrorism and Humanitarian Action by the Humanitarian Policy Group (HPG), part of Britain’s Overseas Development Institute. It examines the effects of the laws that have been put in place since 2001, particularly in the United States, but also in Europe and other donor countries.
The US laws are the ones most liable to disrupt the work of humanitarian agencies, in part because of their extra-territorial nature; one can be prosecuted under these laws even if not an American citizen and the acts in question were committed outside the US.
The US government has put in place a sanctions regime, administered by its Office of Foreign Assets Control, which blocks any transfer of funds to people or organizations designated as “terrorist”. Meanwhile, a Material Support Statute prohibits the giving of support or resources to terrorists or any designated terrorist organization, even if is not done for terrorist purposes. A test case brought by the Humanitarian Law Project established that even providing training in humanitarian law to such an organization (in this case the Tamil Tigers and the Kurdish PKK) would constitute “material support”.
Kate Mackintosh, one of the authors of the paper, says that judgment “sent shivers through the humanitarian community”. She says US law is much stricter than in comparable countries. “Their fear is that they could accidentally contravene this law even through the distribution of food or medicines. In general, under criminal law, in order to commit a crime you have to intend to commit a crime. Now that standard is higher than the standard that applies in most counter-terrorism legislation. In the UK, if you had ‘reasonable grounds to suspect’ that your action might contribute to terrorism you would be liable, in Australia if you are ‘reckless’, and in the United States actually you don’t even have to know that your activities might contribute to a terrorist act if you know that it has gone to a prohibited group.
“This threat of criminal action has had a big impact. Actual prosecutions have been few, although they have targeted Islamic organizations, so they have had a greater impact on that sector.”
The US Department of the Treasury says: "We have effectively used financial intelligence to identify terrorist networks and disrupt and deter their funding mechanisms. Indeed, this piece of our counterterrorism strategy has been particularly successful: we now see that Al-Qaida is under significant financial strain and is struggling to secure steady financing to plan and execute terrorist attacks against the US homeland and Western interests."
In practical terms, donors are demanding guarantees from their implementing partners that none of their aid will fall into the wrong hands. Humanitarian organizations have to compile lists of beneficiaries, vet their local partners, and in some cases supply personal details of their own local staff and of staff working for partner organizations as well. A certain amount of “leakage” to local armed groups, which might once have been accepted as part of the cost of doing business in difficult areas, could now be the basis for criminal prosecution. Individual donors, especially in the Middle East, are shying away, wary of the level of disclosure being demanded.
The administration of international aid has effectively been delegated to... banks and lawyers; I can’t imagine who would think it a good idea for a functionary in a bank to be in charge of implementing a humanitarian aid programme
“The first question we are asked now is, ‘what are you doing to ensure you are not giving aid or assistance, in any shape or form, to the Taliban, or Hamas, or Al-Shabab?’ – the names keep changing but the tune stays the same. And at the same time, the authorities, people like Al-Shabab in south-central Somalia, they are not comfortable with us making beneficiary lists and getting the names of every single individual that is operating in the area. So we come to an impasse… Applying counter-terrorism software to our donors hasn’t been an easy process; transferring money from banks here to our countries of operation isn’t easy… It’s a minefield of difficulties, but we have to navigate ourselves through and make it to the people who matter.”
James Shaw-Hamilton, who works with several groups in his role as director of the Humanitarian Forum, told IRIN that many organizations were now having problems with international money transfers.
“The banks are worried about getting prosecuted in the United States. There are long delays while they check that they are not dealing with anyone on the US sanctions list, and the NGO has to pay the costs of the verification. I know one charity which was forced to change banks because it couldn’t even transfer money to its own lawyers in the United States. The administration of international aid has effectively been delegated to organizations like banks and lawyers; I can’t imagine who would think it a good idea for a functionary in a bank to be in charge of implementing a humanitarian aid programme.”
Call for dialogue
Another of the paper’s authors, Sara Pantuliano of the HPG, said the “big boys” among the charities in particular had put in a lot of work to make sure they did not fall foul of counter-terrorism legislation, but were unwilling to reveal what donor clauses they had been willing to accept. A culture of secrecy had grown up on all sides.
“We found cases of the non-minuting of meetings, because people were concerned that there could be an acknowledgement of some kind of engagement with a proscribed organization. We have also heard of donor policy advice being requested and not given, or even in the case of one donor, given on non-headed paper… Until we have a more transparent discussion about these things, it is difficult to engage the donors in a constructive dialogue.”