study of the impact of donor counter‑terrorism measures .differential impact of counter-terrorism

Kate Mackintosh and Patrick DuplatJuly 2013

Study of the Impact of Donor CounterTerrorism Measures on Principled Humanitarian Action

Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action

Kate Mackintosh and Patrick Duplat

July 2013

Independent study commissioned by

Additional Research Sarah Bayne Jessica Burniske Joanna Buckley Lawrence Joe Howard Cate Osborn Moustafa Osman Hideaki Shinoda Riane C. Ten Veen Editor Tim Morris Cover photo Alissa Everett Photography, www.alissaeverett.com Acknowledgments The study benefited greatly from the advice and counsel of the Advisory Group, who periodically ensured that the research was attempting to answer the right questions and raise the most pertinent issues. Members of the Advisory Group also contributed individually by sharing their knowledge and reviewing sections according to their expertise. They acted in their personal capacity. The members of the Advisory Group were: Prof. Chiyuki Aoi Professor, School of International Politics, Economics & Communication, Aoyama Gakuin University Mr. Haroun Atallah Group Director, Corporate Services, Transparency International, Berlin Ms. Anna Bergeot (until January 2013) Policy Officer, IHL, Humanitarian Space, Protection, European Commission, DG Humanitarian Aid and Civil Protection, Brussels Mr. Joel Charny Vice President for Humanitarian Policy & Practice InterAction Ms. Elisabeth Decrey Warner President, Geneva Call H.E. Ambassador Elissa Golberg Permanent Representative of Canada to the United Nations and Ambassador to the UN Conference on Disarmament in Geneva Dr. Maria Lensu (from January 2013) Policy Officer, IHL, Humanitarian Space and Protection, European Commission, DG Humanitarian Aid and Civil Protection, Brussels Ms. Naz Modirzadeh Senior Fellow, Counter-Terrorism and Humanitarian Engagement Project, Harvard Law School Mr. Mike Parkinson Policy Adviser, Oxfam GB Ms. Jelena Pejic Senior Legal Advisor, Legal Division, International Committee of the Red Cross

Prof. Martin Scheinin Professor of Public International Law, Department of Law, European University Institute, Florence; former UN Special Rapporteur on Human Rights and Counter-Terrorism Prof. Sienho Yee Changjiang Xuezhe Professor and Chief Expert, Institute of International Law, Wuhan University; Editor-in-Chief, Chinese Journal of International Law

_____________ This research would not have been possible without the active participation of several dozen legal experts and humanitarian practitioners in UN agencies, international organizations, the Red Cross and Red Crescent movement, umbrella organizations, NGOs, think tanks and academia. We hope the Study reflects the many opinions and examples that they have contributed anonymously. The researchers are also very grateful for the level of co-operation and assistance provided by government officials in capitals and embassies. The report attempts to air the views of a wide-range of stakeholders and it would not have been possible without the open discussions and off-the-record conversations with many government officials. Finally, the study benefited from guidance, supervision and logistical support of colleagues in the United Nations Office for the Coordination of Humanitarian Affairs and the Norwegian Refugee Council.

Disclaimer

The statements, findings, interpretations, conclusions and recommendations expressed in this study are those of the research team and do not necessarily reflect the views of, or are endorsed by, the United Nations, the Norwegian Refugee Council or the studys Advisory Group.

GLOSSARY

AMISOM African Union Mission in Somalia

ATC Anti-Terrorism Certification

BPRM Bureau for Population, Refugees and Migration

CAP Consolidated Appeals Process

CTAG Counter-Terrorism Action Group

CTC Counter-Terrorism Committee

CTED Counter-Terrorism Committee Executive Directorate

CTITF Counter-Terrorism Implementation Task Force

DFID Department for International Development

ECHO Humanitarian Aid and Civil Protection Department of the European Commission

ECJ European Court of Justice

FATF Financial Action Task Force

FPA Framework Partnership Agreement

FTO Foreign Terrorist Organisation

IASC Inter-Agency Standing Committee

ICRC International Committee of the Red Cross

IHL International Humanitarian Law

IEEPA International Emergency Economic Powers Act

NGO Non-governmental organisation

NPO Non profit organisation

NRC Norwegian Refugee Council

OCHA UN Office for the Coordination of Humanitarian Affairs

OECD Organization of Economic Co-operation and Development

OFAC Office of Foreign Assets Control

OFDA Office for US Foreign Disaster Assistance

OIC Organization of Islamic Cooperation

oPt occupied Palestinian territory

PIO Public international organisation

PVS Partner Vetting System

UNGA United Nations General Assembly

UNSC United Nations Security Council

UNSCR United Nations Security Council Resolution

USAID US Agency for International Development

WFP World Food Programme

Foreword The attacks on the United States on September 11th, 2001, ushered in a new era of expansive counter-terrorism laws and policies which have had an impact on the funding, planning and delivery of humanitarian assistance and protection activities to people in need. This independent study, commissioned by the Office for the Coordination of Humanitarian Affairs and the Norwegian Refugee Council on behalf of the Inter-Agency Standing Committee (IASC), aims to increase the understanding of existing counter-terrorism laws and policies and their impact on our work. Humanitarian principles require that assistance and protection be provided wherever it is needed, impartially and with preference for those in greatest need. This foundation for humanitarian action is based in international law and has been repeatedly reaffirmed by States. In some situations, certain donor counter-terrorism measures have presented humanitarian actors with a serious dilemma. If we abide by our principles, we may break the law and face criminal prosecution. Adherence to some counter-terrorism laws and measures may require us to act in a manner inconsistent with these principles. This could undermine the acceptance of humanitarian workers among the different parties engaged in conflict and the communities in which they work, preventing them from protecting and assisting those most in need. There is an urgent need to strike a better balance between the aims of counter-terrorism laws and measures on one hand, and humanitarian action which adheres to these principles, on the other. The case studies of the occupied Palestinian territory and Somalia highlight some of the impacts of counter-terrorism measures on humanitarian actors. These include increased administrative procedures for procurement or vetting of partners; undermined ability to support people in areas where armed groups designated as terrorist may be active; and a tendency towards self-censorship and other negative coping strategies by humanitarian actors. The case studies also highlight the differential impact of counter-terrorism measures across different types of humanitarian organisations. The study presents practical recommendations both for donors and humanitarian actors. If implemented, these recommendations could help resolve some of the challenges identified in the study and allow humanitarian actors to end some of the negative coping strategies that they employ on the ground. We are committed to ensuring, in open dialogue with donors and together with the IASC and other partners, that these recommendations are carefully considered and, where appropriate, implemented. Striking a better balance between counter-terrorism measures and humanitarian action requires genuine and sustained dialogue among the actors concerned. It requires increased awareness raising and changes to some policies and practices. We will all need to work together and play our part.

Valerie Amos

United Nations Emergency Relief Coordinator and Under-Secretary-General for Humanitarian Affairs

Toril Brekke

Secretary-General, Norwegian Refugee Council

Table of Contents

I Introduction ............................................................................................................................ 11

Rationale and scope of the study ............................................................................................... 13

Methodology ........................................................................................................................................... 14

II Relevant Law and Other Measures ............................................................................ 16

a) Introduction ....................................................................................................................................... 16

b) International framework related to terrorism ................................................................. 16

Inter-governmental counter-terrorism policy initiatives .................................................................... 19

c) Selected Humanitarian Donor States in Detail ............................................................. 19

Australia ................................................................................................................................................................................. 23

Canada ..........