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Toolkit for principled humanitarian action: Managing counterterrorism risks
2. Counterterrorism measures and principled humanitarian action
This section is designed to help develop your understanding of counterterrorism measures and how they can affect principled humanitarian action. By the end of it, you should be able to identify the sources of the counterterrorism measures that affect your organisation’s work, and some of the impacts on its operations.
What is terrorism?
There is no universally agreed definition of terrorism. The UN Security Council (UNSC) provides one in resolution 1566 from 2004 which refers to terrorism as “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organisation to do or to abstain from doing any act”.
There can be some crossover between counterterrorism measures and International Humanitarian Law (IHL) , with both prohibiting acts of terror and aiming to protect civilians in situations of conflict. However, there are also significant differences.
Where do counterterrorism measures come from?
Counterterrorism measures and principled humanitarian action
Counterterrorism measures are introduced through:
- UN Security Council (UNSC) resolutions and other international instruments
- Regulations introduced by regional bodies such as the EU
- States’ domestic laws
Once introduced, these measures are often reflected in donor grant agreements.
International level:UN Security Council
UNSC resolutions are the main instrument for introducing counterterrorism resolutions at the international level.
The first legal instruments to combat terrorism were established before the 11 September 2001 attacks, but much more extensive measures have emerged since. UNSC resolutions such as 1267 from 1999 and 1390 from 2002 were aimed at al-Qaeda and the Taliban. They were the first to introduce sanctions against individuals and groups who were designated as terrorist, and to oblige UN member states to freeze their funds and assets.
Not all sanctions introduced by the UNSC or others are counterterrorism-related. Sanctions can also form part of efforts to reverse territorial aggression, restore democratically elected leaders, promote human rights, and promote disarmament. The motivation behind their imposition may vary, but the negative impacts of sanctions on humanitarian action are often similar.
Subsequent UNSC resolutions have required UN member states to adopt laws and measures to prevent and suppress the financing of terrorist acts, and to prevent and suppress the recruitment and financing of foreign terrorist fighters. These resolutions are binding on all member states, which must adopt or adapt national laws and regulations accordingly.
The UNSC has made only limited efforts to minimise the impact of its counterterrorism and sanctions resolutions on humanitarian action. Only one sanctions regime, relating to Somalia, includes an exemption for humanitarian assistance. This was adopted in 2010 during a famine to ensure aid agencies would still reach areas controlled by al-Shabaab, a group subject to an asset freeze under the sanctions, without fear of violating the regime. No other such exemptions have been adopted by the UNSC.
Several UNSC resolutions specify that counterterrorism measures must be in line with member states’ international legal obligations, including International Humanitarian Law (IHL). Resolutions 2462 and 2482, adopted in 2019, go further than this in urging states “to take into account the potential effects of counterterrorism measures on exclusively humanitarian activities, including medical activities, that are carried out by impartial humanitarian actors in a manner consistent with international humanitarian law”. States are not, however, given guidance on how to do this, nor is their adherence to such requirements publicly reported on. This shortfall and the absence of a universally accepted definition of terrorism means there is a growing tendency among member states to introduce broad counterterrorism measures that may impede humanitarian action.
The term generally refers to language that excludes humanitarian organisations and their staff from the requirement to comply with elements of sanctions regimes and counterterrorism measures that may obstruct their work. Humanitarian exemptions carve out a space for principled humanitarian action, allowing organisations to deliver their services without the risk of contravening such regimes.
The humanitarian exemption in the Somalia sanctions regime, for example, reads: “ … without prejudice to humanitarian assistance programmes conducted elsewhere, the measures imposed by paragraph 3 of its resolution 1844 (2008) shall not apply to the payment of funds, other financial assets or economic resources necessary to ensure the timely delivery of urgently needed humanitarian assistance in Somalia, by the United Nations, its specialised agencies or programmes, humanitarian organisations having observer status with the United Nations General Assembly that provide humanitarian assistance, and their implementing partners including bilaterally or multilaterally funded non-governmental organisations participating in the United Nations Humanitarian Response Plan for Somalia’’.
Another examples is the EU Directive on Combating Terrorism (2017/541), which states: “The provision of humanitarian activities by impartial humanitarian organisations recognised by international law, including international humanitarian law, do not fall within the scope of this Directive, while taking into account the case-law of the Court of Justice of the European Union’.
Read more on humanitarian exemptions here.
A second key source of international counterterrorism measures is Financial Action Task Force (FATF) , an inter-governmental body responsible for setting standards and promoting the implementation of legal, regulatory and operational measures to combat terrorist financing.
FATF has developed a series of recommendations that member states are expected to implement to counter the financing of terrorism. The recommendations relate to how states should regulate the banking and other sectors to mitigate terrorist financing risks. FATF monitors states’ progress in implementing its recommendations and demands reforms if deemed necessary.
FATF recommendations are in theory non-binding, but non-compliance may result in blacklisting, which could impede a state’s access to international financial markets. This gives governments a very strong incentive to comply. The FATF standards do not always provide clear guidance for implementation, which creates space for misinterpretation, misuse or overcompliance by states and banks. Humanitarian organisations face difficulties in accessing financial services, including bank transfers, as a result of bank derisking. Bank derisking occurs when banks refuse to offer services, such as accounts or transfers, to organisations or locations perceived as high risk in order to minimise their own exposure to accusations of facilitating terrorist financing, which could result in fines or other repercussions.
In 2001, FATF issued recommendation eight, which identified NPOs (non-profit organisations – the umbrella term FATF uses to refer to civil society, development and humanitarian organisations) as “particularly vulnerable” to exploitation for terrorist financing purposes, and called on countries to ensure that NPOs cannot be misused by terrorist organisations. Governments translated the recommendation into domestic banking regulations, banks became increasingly cautious in their dealings with NPOs and the phenomenon of bank derisking emerged.
The NPO Coalition on FATF, a group of civil society organisations formed to advocate with FATF and represent NPOs’ interests, conducted a focused campaign to encourage an end to the trend of derisking through changes to recommendation eight. FATF revised the recommendation in 2016 as a result, directing governments to take a more nuanced and risk-based—rather than risk-averse—approach when developing counterterrorism financing measures to avoid the disruption of “legitimate non-profit activities”.
The revision has not, however, had the desired effect, partly because regulators have not issued new guidance to banks instructing them to take a risk-based approach in their dealings with NPOs. According to the revised recommendation, member states are required to carry out and update counterterrorist financing risk assessments of different sectors, including NPOs. Based on the assessment findings, countries should adopt measures proportionately targeting only those NPOs at risk. However, FATF does not provide guidance to states regarding how risk assessments should be carried out, resulting in widely varying approaches. Often NPOs are not consulted during risk assessments of the sector.
In the absence of both guidance from governments emphasising the need for a risk-based approach, as well as accurate, nuanced risk assessments of the NPO sector, banks continue to take risk-avoidance approaches in their dealings with humanitarian organisations. Rather than assessing the risks involved in a particular transaction, taking into account NPOs’ risk mitigation measures, banks tend to perceive any transaction to an area where designated terrorist groups (DTGs) are present as inherently high risk. Banks are concerned about fines for non-compliance with counterterrorist financing rules and have very little incentive to carry out potentially risky transactions. As a result, derisking has become a major operational constraint for organisations trying to transfer money to countries where sanctions have been imposed or DTGs are present.
More information on derisking and on the NPO Coalition on FATF can be found here.
Regional Level
Measures adopted by the EU are an additional source of obligation for relevant member states. UNSC sanctions are given effect in EU regulations and the bloc may also adopt its own sanctions, as it has done for Syria and Ukraine. The EU’s approach to humanitarian exemptions is not uniform. If it is implementing UN sanctions, it follows the UNSC’s approach. The EU will not insert an exemption if the UNSC does not. When it imposes its own sanctions, it sometimes includes exemptions and at other times allows member states to issue licenses for certain activities. The purchase of fuel in Syria, for example, is prohibited by sanctions, but an exemption for projects funded by the EU and its member states allows it to be bought for use in providing humanitarian assistance.
The EU has created a number of tools to help improve understanding of its sanctions regimes, including a sanctions map and FAQs on its Syria measures. It does not, however, instruct member states on how to fulfil their responsibility for implementing sanctions or granting licenses. Approaches tend to vary considerably from one member state to another, adding to an already confusing operating environment for humanitarian organisations.
Domestic level
States are obliged to reflect global and, where relevant, regional instruments in their national laws, but the absence of an internationally recognised definition of terrorism allows them very broad scope in doing so, including the ability to factor in their own political, security and military objectives.
States can also develop their own counterterrorism measures. Some, such as the US and the UK, have their own lists of DTGs and designated individuals in addition to those maintained by the UNSC.
States criminalise support for terrorist groups in different ways. In the aftermath of 11 September 2001, the US government introduced legislation that criminalised the provision of “material support” to DTGs. Four types of support are included: training, expert advice or assistance, service and personnel. US law on material support has broad scope and extraterritorial jurisdiction. This means it can be applied to organisations and individuals regardless of where the alleged crime was committed, the nationality of the perpetrator or the source of the funds involved. This differs from the situation in the UK, where material support crimes are framed not in terms of support to listed groups but to terrorist acts. The UK asserts extra-territorial jurisdiction over these offences only when committed by its own nationals.
Governments are also increasingly introducing broad counterterrorism legislation in response to the issue of returning “foreign fighters”, those who travelled abroad to support or take part in “terrorist acts” or “the providing or receiving of terrorist training” but have since returned to their home country. Most states have legislation in place that makes it a crime to travel abroad to commit a terrorist offence, but in order to make it easier to prosecute “foreign fighters”, some are introducing broader legislation, making it a criminal offence simply to travel to certain areas.
The UK government adopted new legislation in 2019 that gives the government power to make it an offence for UK nationals and residents to enter or remain in a designated country or part of a country. The new legislation is designed to make it easier for the government to prosecute foreign fighters who have returned to the UK, and the act does not contain an exemption for humanitarian workers who may need to enter designated areas.
The designated areas clause as originally proposed exposed staff of humanitarian organisations who enter those areas to the risk of arrest and criminal charges upon their return to the UK. Such legal proceedings against an aid worker engaged in legitimate activity could have a major impact on an organisation, given the resources, cost and possible reputational damage involved.
Several organisations advocated for a humanitarian exemption to provide the legal clarity to protect aid workers who travel to designated areas from arrest. The government initially resisted but ultimately it changed its position. The bill was passed with an exemption for those “providing aid of a humanitarian nature”.
Shortly after it passed, the Dutch government tabled a similar bill, again without a humanitarian exemption. Humanitarian organisations expect this issue to keep arising as governments introduce increasingly broad counterterrorism legislation designed to make the prosecution of returned foreign fighters easier.
Read more about advocacy efforts in the UK here and here, and see a joint press release from international NGOs on the issue here.
Much of the focus on how counterterrorism measures impact humanitarian action tends to be on measures imposed by donor governments. It should also be recognised, however, that measures imposed by host governments can have a significant impact on the staff and operations of humanitarian organisations. Local staff may be particularly exposed to these risks.
Typical offences under local laws that could impact humanitarian work and humanitarian workers may include the prohibition of indirect financing of terrorism, material support laws and the prohibition of broad forms of association with designated groups. These offences can lead to the potential criminal responsibility of staff.
In addition, several host governments have brought in so-called ‘NGO laws’, which sometimes invoke national security concerns in order to restrict or control the activities of humanitarian organisations by using counterterrorism and anti-money laundering measures. These restrictions can include burdensome registration requirements and limitations on foreign funding, and can go as far as to give governments power to approve projects and oversee the selection of suppliers and beneficiaries.
Research shows that cash and voucher assistance (CVA) is no riskier than other forms of aid, but donors tend to increase their scrutiny of implementing partners’ risk management policies and procedures for this type of assistance, mainly due to concerns about the misappropriation of cash. This tendency toward risk aversion was reflected in the Department for International Development's (DFID's) April 2019 decision to pause its support for CVA in north-east Syria as a precautionary measure over concerns about the risk of diversion.
The Cash Learning Partnership (CaLP) commissioned a scoping study on CVA and risk in 2019, which examined three key areas:
- Transferring funds to countries of operation: identifying competent and willing banking and other FSPs
- Identifying in-country FSPs: know-your-customer regulations and financial sector identity checks by in-country providers, including mobile network operators
- Beneficiary identification and data security: counterterrorism financing and anti-money laundering regulations and international sanctions applicable to CVA recipients
The study concluded that the measures reviewed had not explicitly targeted CVA to date, but a trickledown effect was observed on FSPs’ ability and willingness to facilitate this type of assistance. It also found a lack of policies or guidance on the measures to ensure CVA remains unencumbered by bureaucratic processes and risk aversion. This may lead to the use of in-kind assistance instead of CVA, even if the latter has been deemed more effective.
There are also concerns about increased scrutiny of the CVA chain of custody between the recipient and where the funds are spent. To mitigate the impact of increasing restrictions on CVA, CaLP aims to:
- Advocate for humanitarian perspectives to be considered in policy making
- Support the building of an evidence base on the impact of counterterrorism-related restrictions on CVA
- Continue to provide technical and policy support to the CVA community of practice and cash working groups to develop shared risk registers informed by national regulations and practices
Read more about this topic from CaLP here.
Counterterrorism and principled humanitarian action: What are the risks?
Risk categories and operational impacts
Risk Category: Criminal
Operational Impacts
Prosecution over the provision of support to DTGs
The broad definition of support for terrorism that some states have adopted makes this a risk for humanitarian organisations and their staff if they are deemed to have provided support for designated terrorist groups (DTGs) by carrying out certain activities. For example, the US Supreme Court ruled in 2010 that training DTG members in International Humanitarian Law (IHL) was classed as material support and so prohibited.
Criminalisation of staff
Criminal laws designed to counter terrorism have the potential to criminalise humanitarian workers. Local staff members may be particularly exposed to risks under the host country’s counterterrorism legislation. Potential offences that could involve criminal responsibility include presence in an area of designated terrorist activity, the indirect financing of terrorism and broad forms of association with proscribed groups.
Risk Category: Security
Operational Impacts
Insecurity
Engaging with non-state armed groups (NSAGs) , regardless of whether they are DTGs, is a key element of gaining and maintaining secure access to people in need. Engagement also helps to establish consent and acceptance for humanitarian organisations’ activities, which is vital to ensure staff safety. Counterterrorism measures can create uncertainty for organisations about whether contact with NSAGs that are also DTGs is permissible.
Some organisations refrain from engaging with these groups as a result. Organisations that fail to engage with NSAGs because of counterterrorism concerns risk negative perceptions of partiality and non-neutrality, which in turn puts staff at risk. Other organisations do engage with these groups, but do not provide staff with support and guidance about how to do this. This can create a “don’t ask, don’t tell” approach whereby field-based staff engage without the knowledge of senior management, and feel unable to openly discuss dilemmas and risks.
Risk Category: Contractual
Operational Impacts
Delay
The inclusion of counterterrorism clauses in grant agreements can delay the implementation of humanitarian initiatives while organisations work with donors to try to negotiate changes or seek clarity about vague wording. The fact that donors do not always inform organisations when they introduce a new counterterrorism clause or change the wording of existing clauses only increases the likelihood of delays. Some requirements, including screening and/or vetting procedures, may also delay the provision of assistance.
Delays can also occur as a result of bank derisking, which happens when banks refuse, or take longer than expected to provide transfers to locations perceived as high risk in order to minimise their own exposure to accusations of facilitating terrorist financing.
Lower quality of response
Compliance with donor counterterrorism requirements may reduce the quality of an organisation’s response by causing it to choose modalities perceived as lower risk even if they are less appropriate and effective for a particular context.
Risk transfer to staff
Counterterrorism-related wording in grant agreements can be vague and difficult to interpret. It is not uncommon for humanitarian organisations to accept these clauses without fully understanding the requirements involved. Staff tasked with implementing a project under a grant agreement may not have been involved in negotiating it, but they shoulder the burden of complying with the requirements, and organisations often do not provide the necessary guidance or support on how to do so.
Risk transfer to local partners
International NGOs often pass on donor counterterrorism requirements to local partners in the form of “flow-down clauses” without ensuring they understand what signing the clause entails, or that they have the resources and capacity to comply. Local partners may accept requirements that are impossible for them to adhere to or that endanger their staff as a result.
Establishing a precedent
This can occur when one organisation accepts a counterterrorism clause that others deem unacceptable. Some organisations may choose to negotiate more favourable terms, but their leverage and ability to do so is weakened if others have already accepted the requirements.
Loss of funding
Some organisations have refused donor funding as a result of uncertainty about, or unwillingness to accept the terms of counterterrorism clause required of them. Expenditure may also be disallowed under a contract if an organisation does not comply with all donor regulations.
Risk Category: Humanitarian Principles
Operational Impacts
Compromised impartiality
In order to minimise exposure to counterterrorism risks, organisations may choose not to provide assistance in areas controlled by NSAGs that are also DTGs, regardless of the humanitarian needs there. This compromises the impartiality of their response and leaves affected populations without the assistance they need simply because of their location. If an organisation is not perceived as impartial, it can also put staff safety at risk.
Global Solidarity is an international humanitarian organisation that runs large-scale programmes in areas affected by conflict. Global Solidarity works in area X, which is controlled by local authorities who have strong links with a DTG. Operations are managed remotely. There are no international staff based in the area because of access and security concerns.
Global Solidarity put out a tender for the provision of trucked water for area X. The process was administered by the remote management team per standard operting procedures (SOPs) . After the bid process, one of the bidders alleged that contractors had to pay three per cent of the contract value to the local authorities in order to obtain approval to operate in area X.
Global Solidarity’s field coordinator based in area X confirmed this was the case. This was the first time the remote management staff had been informed that field staff were aware of such payments or had any confirmation of their existence.
No tender bids for any current or previous contracts had mentioned a requirement to pay percentage fees to the local authorities to operate in area X. The bids were very detailed, so the fees, which amounted to thousands of dollars, appear to have been absorbed within the overall bids in a way that hid them from Global Solidarity.
The fees contravened Global Solidarity’s policies on facilitation payments, and the local authorities’ relationship with a DTG carried further implications.
A report was provided to Global Solidarity’s regional anti-corruption adviser, who launched an internal investigation. The remote management team immediately suspended the signing of new contracts until the matter could be fully investigated. Global Solidarity made an initial declaration to associated donors and sought legal advice on anti-corruption and terrorism financing legislation.
Global Solidarity also raised the issue with the UN Office for the Coordination of Humanitarian Affairs (OCHA), requesting that it intercede with the local authorities to seek a waiver that would exempt NGOs from paying fees imposed on services that contributed to the provision of humanitarian relief. The engagement, which was undertaken with other affected humanitarian organisations, was successful and a waiver was granted.
Global Solidarity engaged the donor that funded the trucked water project in discussions about risk sharing. The donor agreed the payments in question did not constitute significant irregularities but chose to classify the costs as non-reimbursable and subject to repayment.
The incident sheds light on the obstacles faced in providing humanitarian aid in areas where DTGs may be active, and the additional challenges associated with managing operations remotely. It also shows that internal checks and balances can help to mitigate issues that may arise from remote management, and that coordination and collaboration among humanitarian organisations and donors is essential to bring about solutions.
