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Counterterrorism, sanctions and financial access challenges: Course corrections to safeguard humanitarian action

Published online by Cambridge University Press:  03 February 2022

Sue E. Eckert
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Abstract

This article provides an overview of the impact of United Nations (UN) sanctions and counterterrorism (CT) measures on humanitarian action. The mandatory requirements of UN Security Council Resolutions 1267 and 1373 on member States to prohibit the provision of “funds, financial assets or economic resources” to terrorists complicates the work of humanitarian actors delivering assistance in areas where groups designated under the 1267 regime control territory. After explaining the impact of sanctions and CT measures on humanitarian actors, the article explores three primary sets of challenges encountered by such actors: (1) lack of clarity and adequate legal protection for carrying out humanitarian activities in countries subject to sanctions or areas in which designated entities operate; (2) financial access difficulties or de-risking by financial institutions limiting the ability of non-profit organizations (NPOs) to transfer funds to higher-risk jurisdictions due to banks’ risk aversion or fear of regulatory scrutiny of such transactions; and (3) conditions placed in funding contracts by donors effectively offloading CT and sanctions risks onto beneficiaries. The article analyzes experience with UN humanitarian carve-outs (exceptions as employed in the Somalia sanctions regime and case-by-case exemptions utilized in the North Korea regime), explaining why exceptions are the optimal solution for humanitarian actors. New data are presented indicating that the scope and scale of financial access difficulties experienced by NPOs have grown. Financial institutions, concerned about regulatory requirements to counter terrorism financing, are increasingly reluctant to provide banking services to NPOs working in highly sanctioned jurisdictions, and the resulting de-risking by banks results in significant problems for humanitarian organizations needing to move funds abroad. Additionally, contractual conditions related to CT and sanctions compliance are routinely employed by donors, resulting in an offloading of risk onto recipients without appropriate clarity and guidance from donors. Numerous initiatives in recent years have called attention to the challenges that humanitarians face: stakeholder dialogues, high-level meetings and other discussion fora promote broader understanding among participants and acknowledgement of the impacts that these polices have on humanitarian action. UN action to renew the 1267 regime's mandate and the consideration of a humanitarian carve-out in Afghanistan in the aftermath of the Taliban's takeover represent opportunities to reform sanctions in order to better protect humanitarian action. Recommendations are presented for each of the three sets of challenges, with an urgent call for the Security Council to embrace the opportunity for reform and more effectively balance the equally critical objectives of countering terrorism and safeguarding humanitarian action.

Keywords

counterterrorismsanctionsterrorist financing humanitarian actionUN Security Council
Type
Impact of sanctions and other counterterrorism measures on the humanitarian space
Information
International Review of the Red Cross , Volume 103 , Issue 916-917: Counterterrorism, sanctions and war , April 2021 , pp. 415 - 458
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the ICRC

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References

1 UNSC Res. 1373, 28 September 2001.

2 UNSC Res. 1267, 15 October 1999.

3 See reports by the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, available at: www.ohchr.org/EN/Issues/Terrorism/Pages/SRTerrorismIndex.aspx (all internet references were accessed in December 2021).

4 Reports in 2021 include Emanuela-Chiara Gillard, IHL and the Humanitarian Impact of Counterterrorism Measures and Sanctions: Unintended Ill Effects of Well-Intended Measures, Chatham House, September 2021, available at: www.chathamhouse.org/sites/default/files/2021-09/2021-09-03-ihl-impact-counterterrorism-measures-gillard.pdf; Megan Corrado, Kay Guinane, Gabe Murphy and Liz Hume, Preventing Peace: How “Material Support” Laws Undermine Peacebuilding, Alliance for Peacebuilding and Charity & Security Network, July 2021, available at: www.allianceforpeacebuilding.org/afp-publications/preventing-peace-july2021; NYU Paris and EU Public Interest Clinic, Bank De-Risking of Non-Profit Clients: A Business and Human Rights Perspective, June 2021, available at: www.hscollective.org/assets/Uploads/NYU-HSC-Report_FINAL.pdf; InterAction, Detrimental Impacts: How Counter-Terrorism Measures Impede Humanitarian Action, April 2021, available at: www.interaction.org/wp-content/uploads/2021/04/Detrimental-Impacts-CT-Measures-Humanitarian-Action-InterAction-April-2021.pdf; Damascus-Based INGOs, Understanding the Operational Impacts of Sanctions on Syria, April 2021; Shukri Muhomed, Jerome Puri, Helen Stickler and Divya Sugand, NGOs’ Due Diligence and Risk Management: A Holistic Approach, LSE and Charity & Security Network, March 2021, available at: https://charityandsecurity.org/wp-content/uploads/2021/04/NGOs-Due-Diligence-and-Risk-Mitigation.pdf; Gillian McCarthy, Adding to the Evidence: The Impacts of Sanctions and Restrictive Measures on Humanitarian Action, VOICE Survey Report, March 2021, available at: https://tinyurl.com/3yjsd46b; Jonathan Altman, Brenda Cachay, Zach Miller, Clare Morneau, Nico Moscoso and Steven Orientale, A Data-Based Approach for Understanding the Impact of AML/CFT/Sanctions on the Delivery of Aid: The Perspective of Nonprofit Organizations, Yale University Capstone Study, January 2021 (Yale Study), available at: https://jackson.yale.edu/the-impacts-of-sanctions-on-humanitarian-assistance-bringing-data-into-the-conversation/. More than four dozen reports/resources related to CT, sanctions/anti-money laundering (AML)/countering the financing of terrorism (CFT) measures and humanitarian action exist from 2019–21 alone. A list of these references is available from the author.

5 The term “non-profit organization” used throughout this article is defined consistent with the Financial Action Task Force (FATF): “A legal person or arrangement or organisation that primarily engages in raising or disbursing funds for purposes such as charitable, religious, cultural, educational, social or fraternal purposes, or for the carrying out of other types of “good works.” FATF and Organisation for Economic Co-operation and Development (OECD), Best Practices: Combating the Abuse of Non-Profit Organisations (Recommendation 8), Paris, June 2015, available at: www.fatf-gafi.org/media/fatf/documents/reports/BPP-combating-abuse-non-profit-organisations.pdf. Humanitarian organizations are a subset of the broader grouping of NPOs, but for the purposes of this article's narrative, the terms are generally used interchangeably. It is important to note that international humanitarian law (IHL) applies only to impartial humanitarian actors.

6 While there are varying definitions of de-risking, this article uses the FATF's definition: “[D]e-risking refers to the phenomenon of financial institutions terminating or restricting business relationships with clients or categories of clients to avoid, rather than manage, risk in line with the FATF's risk-based approach.” FATF and OECD, “FATF Clarifies Risk-Based Approach: Case-by-Case, not Wholesale De-Risking”, Paris, 23 October 2014, available at: www.fatf-gafi.org/documents/documents/rba-and-de-risking.html.

7 OCHA, “Global Humanitarian Overview 2022”, Geneva, 2021, available at: https://gho.unocha.org/.

8 OCHA, “Daily Noon Briefing Highlights: Afghanistan – Ethiopia”, 5 November 2021, available at: www.unocha.org/story/daily-noon-briefing-highlights-afghanistan-ethiopia-7.

9 UNSC, 8822nd Meeting (SC/14582), 16 July 2021, coverage available at: www.un.org/press/en/2021/sc14582.doc.htm.

10 UNSC, “Protection of Civilians in Armed Conflict: Preserving Humanitarian Space”, Amina Mohammed intervention, New York, 16 July 2021, available at: www.unmultimedia.org/avlibrary/asset/2642/2642275/.

11 As with all UN requirements flowing from a UNSC resolution adopted based on Chapter VII of the UN Charter, sanctions and CT measures are implemented through national laws and regulations to which humanitarian groups are subject. The focus of this article, therefore, is on the UN Chapter VII mandates as the source of national measures which understandably vary by State. While some references are made to US, UK or EU sanctions because private sector actors and States pay close attention to these major actors, the article focuses on UN measures for the most part.

12 Al-Qaida Sanctions Committee, “Assets Freeze: Explanation of Terms”, 24 February 2015, available at: www.un.org/securitycouncil/sites/www.un.org.securitycouncil/files/eot_assets_freeze_-_english.pdf

13 Yale Study, above note 4.

14 UNSC Res. 253, 29 May 1968, para. 1(d), available at: www.refworld.org/docid/3b00f27434.html.

15 Comprehensive UN sanctions include the Former Republic of Yugoslavia (Serbia and Montenegro), UNSC Res. 713/ 757/787/820/942 (1992–96); Haiti, UNSC Res. 841/873/917 (1993–94); and Iraq, UNSC Res. 661 etc. (1990–2003).

16 Estimates of Iraqi deaths attributable to sanctions vary, using different methodologies and addressing different timeframes. The figure of 500,000–600,000 child deaths has been widely cited: see Sarah Zaidi and Mary Smith Fawzi, “Health of Baghdad's Children”, The Lancet, Vol. 346, No. 8988, 1995; Center for Economic and Social Rights, Unsanctioned Suffering: A Human Rights Assessment of United Nations Sanctions on Iraq, May 1996, available at: www.cesr.org/sites/default/files/Unsanctioned%20Suffering%201996.pdf; Barbara Crosette, “Iraq Sanctions Kill Children, U.N. Reports”, New York Times, 1 December 1995, available at: www.nytimes.com/1995/12/01/world/iraq-sanctions-kill-children-un-reports.html. See also Richard Garfield, Morbidity and Mortality among Iraqi Children from 1990 through 1998: Assessing the Impact of the Gulf War and Economic Sanctions, Joan B. Kroc Institute for International Peace Studies at the University of Notre Dame and Fourth Freedom Forum, 1999, available at: www.fourthfreedomforum.org/publications/morbidity-and-mortality-among-iraqi-children-from-1990-to-1998-assessing-the-impact-of-economic-sanctions/. More recent research, however, contends that that figure was the result of survey data manipulated by the Saddam Hussein regime. Also, in response to the humanitarian consequences of sanctions, the UN created the Oil-for-Food Programme to permit Iraq to sell oil on the world market in exchange for food, medicine, and other humanitarian needs for ordinary Iraqi citizens. While laudable in its objectives, however, the Oil-for-Food Programme became mired in controversy, with revelations of corruption. See Geneva International Centre for Justice, “Razing the Truth About Sanctions against Iraq”, GICJ Positions and Opinions, available at: www.gicj.org/positions-opinons/gicj-positions-and-opinions/1188-razing-the-truth-about-sanctions-against-iraq; Tim Dyson and Valeria Cetorelli, “Changing Views on Child Mortality and Economic Sanctions in Iraq: A History of Lies, Damned Lies and Statistics”, BMJ Global Health, Vol. 2, No. 2, 2017.

17 See Biersteker, Thomas J., Eckert, Sue E. and Touinho, Marcos, Targeted Sanctions: The Impacts and Effectiveness of UN Action, Cambridge University Press, New York, 2016CrossRefGoogle Scholar.

18 Cortright, David and Lopez, George A., The Sanctions Decade: Assessing UN Strategies in the 1990s, Lynne Reiner, Boulder, CO, 2000Google Scholar.

19 UNSC Res. 1267, 15 October 1999.

20 Exemptions for living expenses have been referred to as “humanitarian” exemptions but are not to be confused with exceptions/exemptions permitting NGOs to provide impartial humanitarian assistance.

21 UNSC Res. 1988, 17 June 2011.

22 UNSC Res. 1989, 17 June 2011.

23 UNSC Res. 1904, 17 December 2009.

24 Irénée Herbet and Jérôme Drevon, “Engaging Armed Groups at the International Committee of the Red Cross: Challenges, Opportunities and COVID-19”, International Review of the Red Cross, Vol. 102, No. 915, 2021, available at: https://tinyurl.com/2p82jwej.

25 Al-Qaida Sanctions Committee, above note 12 (emphasis added).

26 UNSC Res. 2368, 20 July 2017 (emphasis added).

27 Ibid.

28 UNSC Res. 1373, 28 September 2001, para. 1(d).

29 See Charity & Security Network, “The Prohibition on Material Support and Its Impacts on Nonprofits”, July 2019, available at: https://charityandsecurity.org/sites/default/files/material%20support%20issue%20brief%202019.pdf.

30 From 2008 to 2014, five reports/resources addressing the impact of sanctions, CT measures and de-risking were found. That number increased to twelve in 2015, eleven in 2016, nineteen in 2017, seventeen in 2018, thirteen in 2019, twenty-two in 2020, and eight in the first half of 2021. The author maintains a list of related reports/resources which is available upon request.

31 Emma O'Leary, Principles Under Pressure: The Impact of Counterterrorism Measures and Preventing/Countering Violent Extremism on Principled Humanitarian Action, Norwegian Refugee Council (NRC), June 2018 available at: www.nrc.no/resources/reports/principles-under-pressure/ ; I. Herbet and J. Drevon, above note 24.

32 UNSC Res. 2462, 28 March 2019.

33 Nathalie Weizmann, “Painting within the Lines: The UN's Newest Resolution Criminalizing Financing for Terrorists without Imperiling Humanitarian Activities”, Just Security, 29 March 2019, available at: www.justsecurity.org/63442/painting-within-the-lines-the-uns-newest-resolution-criminalizing-financing-for-terrorists-without-imperiling-humanitarian-activities/.

34 UNSC, “Combatting Financing of Terrorism Open Debate”, Security Council Report, 27 March 2019, available at: www.securitycouncilreport.org/whatsinblue/2019/03/combatting-financing-of-terrorism-open-debate.php.

35 UN Human Rights Special Procedures, Report of the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism on United Nations Security Council Use of Counter-Terrorism Targeted Sanctions Regimes on Individuals & Entities and the Promotion and Protection of Human Rights and Fundamental Freedoms, 2021, available at: www.ohchr.org/Documents/Issues/Terrorism/position-paper-unsrct-on-unsc-use-of-ct-targeted-sanctions.pdf.

36 Alice Debarre, Making Sanctions Smarter: Safeguarding Humanitarian Action, International Peace Institute (IPI), December 2019, available at: www.ipinst.org/2019/12/making-sanctions-smarter-safeguarding-humanitarian-action.

37 UNSC Res. 2511, 25 February 2020, para. 3, includes language similar to that of the DPRK regime, stating that the Council, “[e]mphasizing the importance of facilitating humanitarian assistance, decides that the Committee established in paragraph 19 of resolution 2140 (2014) … may, on a case-by-case basis, exempt any activity from the sanctions measures imposed by the Security Council … if the Committee determines that such an exemption is necessary to facilitate the work of the United Nations and other humanitarian organisations in Yemen”. As of December 2021, no procedures for applying for humanitarian exemptions have been listed on the Yemen sanctions website.

38 Robert Mardini, “Protection of Civilians in Armed Conflict: Preserving Humanitarian Space”, statement delivered to the UNSC, 16 July 2021, available at: www.icrc.org/en/document/humanitarian-space-must-be-protected-without-exception (noting member States (Switzerland, the Philippines, Chad, the EU and others) adopting CT legislation which expressly protects impartial humanitarian organizations carrying out humanitarian activities).

39 UNSC Res. 1916, 19 March 2010.

40 UNSC Res. 2551, 12 November 2020.

41 Kate Mackintosh and Patrick Duplat, Study of the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action, OCHA and NRC, 2013, available at: www.nrc.no/globalassets/pdf/reports/study-of-the-impact-of-donor-counterterrorism-measures-on-principled-humanitarian-action.pdf.

42 Sara Jerving, “Humanitarians Warn against Adding Al-Shabab to UN Sanctions List”, Devex, 16 August 2019, available at: www.devex.com/news/humanitarians-warn-against-adding-al-shabab-to-un-sanctions-list-95465.

43 A. Debarre, above note 36.

44 UNSC Res. 1718, 14 October 2006, para. 25.

45 UNSC Res. 2397, 22 December 2017, para. 25.

46 UNSC, “Humanitarian Exemption Requests”, available at: www.un.org/securitycouncil/sanctions/1718/exemptions-measures/humanitarian-exemption-requests.

47 Security Council Committee Established Pursuant to Resolution 1718 (2006), “Implementation Assistance Notice No. 7: Guidelines for Obtaining Exemptions to Deliver Humanitarian Assistance to the Democratic People's Republic of Korea”, 6 August 2018 (updated 30 November 2020), available at: www.un.org/securitycouncil/sites/www.un.org.securitycouncil/files/ian7_updated_30nov20_2.pdf.

48 1718 Sanctions Committee, “Humanitarian Exemption(s) in Effect”, available at: www.un.org/securitycouncil/sanctions/1718/exemptions-measures/humanitarian-exemption-requests.

49 DPRK Panel of Experts Report, UN Doc. S/2019/171, March 2019, available at: www.undocs.org/S/2019/171 (internal references omitted). See also the subsequent Panel of Experts reports, available at: www.un.org/securitycouncil/sanctions/1718/panel_experts/reports.

50 Ibid.

51 For an overview of the difficulties that NPOs have faced in providing humanitarian assistance to the DPRK, see Nazanin Zadeh-Cummings and Lauren Harris, Humanitarian Aid in North Korea: Needs, Sanctions and Future Challenges, Centre for Humanitarian Leadership, April 2020, available at: https://centreforhumanitarianleadership.org/wp-content/uploads/2020/04/CHL_North-Korea-Report_Final.pdf; Dan Jasper, Engaging North Korea: A Toolkit for Protecting Humanitarian Channels amid “Maximum Pressure”, American Friends Service Committee, June 2018, available at: www.afsc.org/sites/default/files/documents/Engaging%20North%20Korea%20Volume%20III%20WEB.pdf.

52 Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions: Saving Lives is not a Crime, UN Doc. A/73/314, 7 August 2018, para. 52; Impact of Measures to Address Terrorism and Violent Extremism on Civic Space and the Rights of Civil Society Actors and Human Rights Defenders: Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, UN Doc. A/HRC/40/52, 1 March 2019, available at: https://undocs.org/en/A/HRC/40/52. These reports use the term “exempt”, but as defined by this paper, the action being recommended is an exception.

53 This paper generally refers to the collective problems experienced by NPOs as “financial access” issues rather than de-risking. Financial access is a more appropriate characterization because the difficulties that charities encounter are much broader than merely restricting or terminating accounts or failing to take on NPOs as clients. They also include delays in processing transfers, requests for additional information and other complicating actions. However, because de-risking has become a common catch-all term, it is unavoidable in discussing the issues addressed in this paper, especially in the context of previous reports and public characterizations.

54 The FATF is an intergovernmental body which seeks to develop and promote measures to combat money laundering, the financing of terrorism and other threats to the integrity of the international financial system. See the FATF website, available at: www.fatf-gafi.org/about/.

55 This section is based on numerous reports related to financial access/de-risking of NPOs, including the author's own research and resulting report: Sue E. Eckert, Kay Guinane and Andrea Hall, Financial Access for U.S. Nonprofits, Charity & Security Network, February 2017, available at: www.charityandsecurity.org/system/files/FinancialAccessFullReport_2.21%20(2).pdf; Tom Keatinge and Florence Keen, Humanitarian Action and Non-state Armed Groups: The Impact of Banking Restrictions on UK NGOs, Chatham House, April 2017, available at: www.chathamhouse.org/publication/humanitarian-action-and-non-state-armed-groups-impact-banking-restrictions-uk-ngos; Ministry of Finance of the Netherlands and Human Security Collective (HSC), International Stakeholder Dialogue: Ensuring Financial Services for Non-Profit Organizations, The Hague, February 2018, available at: www.hscollective.org/assets/Final-Report_Feb-15.pdf; Charity Finance Group, Impact of Money Laundering and Counter-Terrorism Regulations on Charities, March 2018, available at: https://tinyurl.com/yckzcju4; World Bank and Association of Certified Anti-Money Laundering Specialists (ACAMS), Stakeholder Dialogue on De-Risking: Financial Access for Nonprofit Organizations, June 2018; WO=MEN and HSC, Protecting Us by Tying Our Hands: Impact of Measures to Counter Terrorism Financing on Dutch NGO's Working on Women's Human Rights and Gender Equality, April 2019 (WO=MEN/HSC Study), available at: www.hscollective.org/assets/Uploads/2019-04-Protecting-us-by-tying-our-hands.pdf; Yale Study, above note 4; G. McCarthy, above note 4.

56 See “FATF Treatment of NPOs”, in S. E. Eckert, K. Guinane and A. Hall, above note 55, for an overview of the FATF's actions related to NPOs. The FATF made protection of the NPO sector from terrorist abuse a critical component of the global fight against terrorism and a necessary step for preserving the integrity of NPOs through the adoption of Special Recommendation 8 in October 2001. This action, however, resulted in enduring perceptions of NPOs as inherently high-risk.

57 S. E. Eckert, K. Guinane and A. Hall, above note 55.

58 Charity Finance Group, above note 55.

59 WO=MEN/HSC Study, above note 55.

60 Yale Study, above note 4. The survey was sent to global NPO networks, which then disseminated it to members of their organizations. In total, the survey received 117 responses from organizations of various sizes and locations. Data clean-up resulted in the evaluation of fifty-six complete responses. Because respondents did not identify the types of services their organizations deliver (humanitarian, development, peacebuilding, educational etc.), it is impossible to segregate out the impacts on humanitarian organizations alone.

61 This section also draws heavily on the Yale Study, above note 4.

62 While both government agencies and private donors include various forms of assurance against aid diversion, most of the concern expressed by NPOs relates to measures imposed by official aid organizations (USAID, DG ECHO and the UK FCDO) that are discussed here.

63 Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, UN Doc. A/70/731, 18 September 2015, para. 33, available at: https://undocs.org/pdf?symbol=en/A/70/371.

64 E. O'Leary, above note 31.

65 Counterterrorism and Humanitarian Engagement Project, An Analysis of Contemporary Counterterrorism-Related Clauses in Humanitarian Grant and Partnership Agreement Contracts, Harvard Law School and Brookings Institution, May 2014, available at: http://blogs.harvard.edu/cheproject/files/2013/10/CHE_Project_-_Counterterrorism-related_Humanitarian_Grant_Clauses_May_2014.pdf.

66 Yale Study, above note 4.

67 G. McCarthy, above note 4. The countries are Syria, Lebanon, Mali, the Occupied Palestinian Territory, Venezuela, Afghanistan, Burundi, the CAR, the DRC, Haiti, Iraq, the DPRK, Somalia, South Sudan, Sudan, Turkey, Yemen, Iran, Myanmar, Ukraine, Zimbabwe, Egypt, Guinea, Guinea-Bissau, Bosnia and Herzegovina, Libya, Tunisia, Nicaragua and Russia.

68 Duke Law International Human Rights Clinic and Women Peacemakers Program, Tightening the Purse Strings: What Countering Terrorism Financing Costs Gender Equality and Security, Durham, NC, 2017, available at https://law.duke.edu/sites/default/files/humanrights/tighteningpursestrings.pdf.

69 The NRC found that nearly half of respondents felt CT measures were unclear, and over 30% wanted more guidance from donors. See E. O'Leary, above note 31.

70 Abby Stoddard, Monica Czwarno and Lindsay Hamsik. NGOs and Risk: Managing Uncertainty in Local-International Partnerships, US Agency for International Development (USAID) and InterAction, Washington, DC, 7 March 2019, available at https://reliefweb.int/sites/reliefweb.int/files/resources/Risk-Global-Study.pdf.

71 Abby Stoddard, Katherine Haver and Monica Czwarno, NGOs and Risk: How International Humanitarian Actors Manage Uncertainty, InterAction, Washington, DC, February 2016, available at: www.interaction.org/wp-content/uploads/2019/03/ngos_and_risk_-_february_2016.pdf. See also Humanitarian Outcomes and InterAction, NGO Risk Management: Principles and Promising Practice, Washington, DC, 2 March 2021, available at: www.interaction.org/wp-content/uploads/2019/02/ngo_risk_management_-_principles_and_promising_practice.pdf.

72 Yale Study, above note 4. See also NRC, Practical Guide: Project Cycle Management and Counterterrorism Risks, Oslo, 20 March 2020, available at: www.nrc.no/resources/reports/practical-guide-project-cycle-management-and-counterterrorism-risks/.

73 UK FCDO, Accountable Grant Arrangement Template, available at: www.ukaiddirect.org/wp-content/uploads/2020/05/FCDO-Accountable-Grant-Template_UKAD3-and-JCMG-Network_September-2020_web.pdf.

74 Based on discussions between the author and humanitarian organizations and officials subject to the Chatham House rule.

75 USAID, An Indirect Cost Rate Guide for Non-Profit Organizations, Washington, DC, 2016, p. 9, available at: www.usaid.gov/sites/default/files/documents/1868/OCC_A_Guidefor_NonProfit_Indirect_CostRate_Oct31_16_Version1.01.pdf; USAID, “Infographic: Negotiated Indirect Cost Rate Agreement (NICRA)”, available at: www.usaid.gov/work-usaid/resources-for-partners/indirect-cost-rate-guide-non-profit-organizations.

76 DG ECHO, “Sanction Clauses”, 2021, available at: www.dgecho-partners-helpdesk.eu/sanctions/sanction-clauses.

77 DG ECHO, “The Humanitarian Aid Model Grant Agreement (HA MGA) for NGOs”, 2021, available at: www.dgecho-partners-helpdesk.eu/ngo/the-humanitarian-aid-model-grant-agreement-ha-mga-for-ngos.

78 E. O'Leary, above note 31, p. 20.

79 This box is based on examples provided in the Yale Study, above note 4.

80 Charity & Security Network, “USAID Revises Grantee Documents relating to Anti-Terrorism Requirements”, 21 May 2020, available at: https://charityandsecurity.org/news/usaid-revises-grantee-documents-relating-to-anti-terrorism-requirements/.

81 NRC, above note 72.

82 Counterterrorism and Humanitarian Engagement Project, above note 65.

83 K. Mackintosh and P. Duplat, above note 41.

84 NRC, above note 72.

85 Charity & Security Network, above note 80.

86 Ibid.

87 USAID, “Certifications, Assurances, Representations, and Other Statements of the Recipient”, May 2020, available at: www.usaid.gov/sites/default/files/documents/1868/303mav.pdf.

88 Charity & Security Network, above note 80.

89 In the author's experience, requests for evidence of impact of CT policies on humanitarian action are routine aspects of engagement of NPOs with member States and international organizations, although overt scepticism is rarely on the record. What constitutes adequate evidence varies and is subject to opinion.

90 See Global Counterterrorism Forum, Good Practices Memorandum for the Implementation of Countering the Financing of Terrorism Measures while Safeguarding Civic Space, September 2021, available at: https://tinyurl.com/yckzvm48.

91 For information on the Tri-Sector Working Group, see Teresa Dumasy, “Balancing Risk and Benefit: Bank De-Risking and the Work of NGOs”, August 2018, available at: www.c-r.org/news-and-insight/balancing-risk-and-benefit-bank-de-risking-and-work-ngos.

92 David Anderson, “The Independent Review of UK Terrorism Law,” New European Journal of Criminal Law, Vol. 5, No. 3, 2014, p. 434.

93 World Bank Group, Stakeholder Dialogue on De-Risking: Supporting Financial Access for Humanitarian Organizations and Charities, Washington, DC, February 2017, available at: https://tinyurl.com/2p92e9pj. The author participated in the first meeting and then became a consultant to the World Bank to help manage the multi-stakeholder process. See also the report of the successor initiative, the Consortium for Financial Access, Banking Nonprofit Organizations – the Way Forward, June 2019, available at: https://tinyurl.com/yckmbn4p. This report reflects many of the findings of the World Bank/ACAMS initiative.

94 A proposal was developed by NPOs and financial institutions as part of the World Bank/ACAMS dialogue and presented to the Federal Financial Institutions Examination Council in October 2017 to revise the NGO Section of the BSA/AML Examination Manual. No revision of the Manual has been made, but the US Office of the Comptroller of the Currency released a fact sheet in November 2020. See Office of the Comptroller of the Currency, “Joint Fact Sheet on Bank Secrecy Act Due Diligence Requirements for Charities and Non-Profit Organizations”, 19 November 2020, available at: www.occ.gov/news-issuances/news-releases/2020/nr-ia-2020-155a.pdf.

95 Ministry of Finance of the Netherlands, World Bank Group and HSC, International Stakeholder Dialogue: Ensuring Financial Services for Non-Profit Organizations, The Hague, 15 February 2018, available at: www.hscollective.org/assets/Final-Report_Feb-15.pdf.

96 For more information on the Working Group, see Center for Strategic and International Studies, “Humanitarian Agenda”, 2021, available at www.csis.org/programs/humanitarian-agenda. The author is affiliated with the Humanitarian Agenda and is a manager of the Working Group.

97 Graduate Institute Geneva, “The Compliance Dialogue on Syria-Related Humanitarian Payments”, 29 May 2020, available at: www.graduateinstitute.ch/communications/news/compliance-dialogue-syria-related-humanitarian-payments.

98 Justine Walker, Risk Management Principles Guide for Sending Humanitarian Funds into Syria and Similar High-Risk Jurisdictions, May 2020, available at: http://files.acams.org/pdfs/2020/The-Risk-Management-Principles-Guide-for-Sending-Humanitarian-Funds-into-Syria-and-Similar-High-Risk-Jurisdictions.pdf.

99 ACAMS, “The ACAMS International Sanctions Compliance Task Force”, 2021, available at: www.acams.org/en/sanctions#thought-leadership-6b2e9de0.

100 ACAMS Sanctions Space, “Public Statement: ACAMS International Sanctions Compliance Task Force: Humanitarian-Sanctions Technical Dialogue Forum”, 1 March 2021, available at: www.acams.org/en/media/document/16941.

101 The author currently co-chairs the ACAMS Humanitarian-Sanctions Technical Dialogue Forum.

102 Défis Humanitaires, “The National Humanitarian Conference 2020: Undeniable Advances in the Field of Law”, 8 March 2021, available at: https://defishumanitaires.com/en/tag/national-humanitarian-conference/. See also Ministry of Europe and of Foreign Affairs of France, “National Humanitarian Conference: A Forum for Dialogue Bringing Together all Humanitarian Stakeholders”, 17 December 2020, available at: www.diplomatie.gouv.fr/en/french-foreign-policy/emergency-humanitarian-action/news/article/national-humanitarian-conference-a-forum-for-dialogue-bringing-together-all.

103 G. McCarthy, above note 4.

104 European Commission, “European Humanitarian Forum”, 2021, available at: https://humanitarian.forum.europa.eu/index_en.

105 Federal Foreign Office of Germany, “Protecting Humanitarian Aid Workers: Germany and France in the UN Security Council”, 1 April 2019, available at: www.auswaertiges-amt.de/en/aussenpolitik/themen/humanitarianassistance/security-council-humanitarian-assistance/2206470.

106 Ministry of Europe and of Foreign Affairs of France, “The Call for Humanitarian Action: A Call for Action to Bolster Respect for International Humanitarian Law”, 21 September 2021, available at: www.diplomatie.gouv.fr/en/french-foreign-policy/united-nations/multilateralism-a-principle-of-action-for-france/the-call-for-humanitarian-action/.

107 UNSC, Protections of Civilians in Armed Conflict, UN Doc. S/PV.8822, 16 July 2021, available at: https://tinyurl.com/mr3e3t79.

108 “Security Council: Overcoming Challenges in Situations of Armed Conflict and Counter-Terrorism Operations”, UN Web TV, 11 August 2021, available at: https://media.un.org/en/asset/k1p/k1pikud42f.

109 European Union, France, Germany, Mexico, Niger, Norway and Switzerland, Discussion Series: Ensuring the Protection, Safety and Security of Humanitarian Workers and Medical Personnel in Armed Conflicts, 2021, available at: https://eeas.europa.eu/sites/default/files/outcome_document_-_discussion_series.pdf.

110 IPI, “Safeguarding Humanitarian Action in Counterterrorism Contexts: Addressing the Challenges of the Next Decade”, 24 June 2021, available at: www.ipinst.org/2021/06/safeguarding-humanitarian-action-in-counterterrorism-contexts#6.

111 As cited at above note 32.

112 UNGA Res. 75/291, 30 June 2021, para. 60.

113 Ibid., para. 109.

114 UN Human Rights Special Procedures, above note 35.

115 UNSC Res. 2582, 29 June 2021.

116 UNSC, “December 2021 Monthly Forecast”, Security Council Report, 30 November 2021, available at: www.securitycouncilreport.org/monthly-forecast/2021-12/counter-terrorism-9.php.

117 IPI, Options to Safeguard Humanitarian Action in the 1267 UN Sanctions Regime, December 2021. Recommendations in the following section are based in part on IPI discussions about ways to strengthen the protection of humanitarian actors and respect for IHL in sanctions regimes.

118 The 1988 regime targets individual members of the Taliban (but not the Taliban itself) and consists of 135 individuals plus five entities (including the Haqqani Network and four hawaladars). At least four members of the Haqqani Network are in charge of Afghan ministries (Interior, Telecommunications, Higher Education and Refugees). See UN, “Security Council Committee Established Pursuant to Resolution 1988 (2011)”, 2021, available at: www.un.org/securitycouncil/sanctions/1988.

119 ICRC, “International Committee of the Red Cross Calls for Humanitarian Carve-Out in UN Security Council 1988 Afghanistan Sanctions Regime”, 19 November 2021, available at: www-icrc-org.cdn.ampproject.org/c/s/www.icrc.org/en/document/international-committee-red-cross-calls-humanitarian-carve-out-un-security-council-1988?amp.

120 UNSC Res. 2615, 22 December 2021.

121 The High Level Review of United Nations Sanctions (HLR) recommended standing exemptions for UN humanitarian actors and implementing partners. Note that under the definition applied in this article, the intent of the HLR was for an exception, but the distinction was not made between exception/exemption at the time. See Brown University Watson Institute and Compliance & Capacity Skills International, Compendium: High Level Review of United Nations Sanctions, New York, November 2015, available at: www.onpcsb.ro/pdf/HLR_Compendium_2015.pdf.

122 Released in January 2022, The Interrelationship between Counter-Terrorism Frameworks and International Humanitarian Law is significant in that it is the first UN CT body to acknowledge and address the impact of terrorism and CT measures on humanitarian action. Available at: www.un.org/securitycouncil/ctc/sites/www.un.org.securitycouncil.ctc/files/files/documents/2022/Jan/cted_ihl_ct_jan_2022.pdf.

123 Language previously included in other UNSC resolutions could be used, such as the language included in the sanctions regimes for the DPRK, CAR, DRC and Mali, as well as UNSC Res. 2462.

124 David Ignatius, “How the U.S. Is Helping Vulnerable Afghans without Recognizing the Taliban”, Washington Post, 18 January 2022, available at: https://www.washingtonpost.com/opinions/2022/01/18/how-us-is-helping-vulnerable-afghans-without-recognizing-taliban/.

125 OFAC, “Guidance Related to the Provision of Humanitarian Assistance by Not-for-Profit Non-Governmental Organizations”, US Department of the Treasury, Washington, DC, 17 October 2014, available at: https://home.treasury.gov/system/files/126/ngo_humanitarian.pdf.

126 Fintech for International Development (F4ID) is a new financial technology partnership between the NGO Save the Children and FIs Barclays and Standard Chartered aimed at creating digital solutions to help deliver humanitarian assistance to hard-to-reach communities. F4ID is designed as an efficient, low-cost, safe and trusted digital tool that gives communities flexibility and choice as well as reducing fraud and aid diversion risks. See Save the Children, “New Fintech Company Creates Tools to Help Communities Thrive”, 22 November 2021, available at: www.savethechildren.net/news/new-fintech-company-creates-tools-help-communities-thrive#; and the F4ID website, available at: www.f4id.org.

127 S. E. Eckert, K. Guinane and A. Hall, above note 55, pp. 98–99 (regarding an NPO facility modelled on TechSoup's NGO Source).

128 OCHA, above note 7.