Redefining “Material Support”:
Rethinking Counter-Terrorism Policies that
Prevent Humanitarian Aid and Assistance
By Lydia...
Outline
• Statement of the Policy Problem
• Overview of Terrorism and Counter-Terrorism
▫ Definition, UN Global Counter-Te...
Statement of the Problem
Current Counter-Terrorism (CT) policy has been very
heavily focused on crime prevention technique...
Overview of Terrorism: Definition
• No single definition
▫ “Any act of violence undertaken for the purpose of
altering a g...
Overview of Terrorism: UN Global Counter-
Terrorism Strategy
Conditions Conducive Areas of Focus
Prolonged,
unresolved
con...
Overview of Terrorism: Funding
• Terrorism is relatively inexpensive while it can
inflict major damage.
• Cutting off the ...
Counter-Terrorism: Crime Prevention
Type Local (Micro) National (Meso) International (Macro)
National Action
Plans
Nationa...
Counter-Terrorism: Crime Prevention
• Aid is one of the leading factors that helps prevent
terrorism
• Humanitarian Assist...
Counter-Terrorism: Crime Control
Targeted Sanctions
(including Asset
Freezing)
• UNSC Initiated
• National FIU Initiated
C...
Overview of International Counter-
Terrorism Initiatives: Security Council
Security Council Resolution
1373 (2001) [Chapte...
Overview of International Counter-Terrorism
Initiatives: Designation and Asset Freezing
Sanctions
Committees
• All entitie...
Overview of International Law: The AML/CFT Regime
• Financial Action Task Force (FATF)
▫ International Law Enforcement Bod...
Overview of International Law:
FATF Special Recommendation VIII
13
Sources: FATF. (2012). International Standards on Comba...
AML/CFT as Situational Crime Prevention (SCP)
[Formal Financial Sector Transaction]
14
Individual or Organization
Seeking ...
Overview of Material Support: Definition
• The exact definition varies across jurisdictions.
• The US definition developed...
Policy Problems with Material Support
AML/CFT Regime SCP to prevent
the financing of terrorism
The AML/CFT
Regime is overl...
How the NPO Sector is Entrapped with SCP
17
NPO Sector providing
services, including
humanitarian relief
Any Government
wi...
Policy Problems with Material Support
• Reduction in overall donations
▫ Donor fears of funding terrorism
• Fewer number o...
Real World Examples: Costs of
Providing Humanitarian Aid
• Getting access to vulnerable groups
▫ “Taxes”, registration fee...
Real World Examples
• Somalia
▫ 2011 Famine – slow response to provide aid and relief
▫ Inability of many organizations to...
Improving Current Policies:
Recommendations
1. States need to undertake assessments to
determine the actual levels of abus...
Improving Current Policies:
Recommendations
4. FATF and FSRB‟s should work with an NGO
partner(s) that can coordinate a co...
Improving Current Policies:
Recommendations
6. Definitions of membership in a terrorist organization, and
participation in...
Prospects for the Future
Numerous NGOs currently
working on this issue – engaging
states, FATF/FSRB‟s, UN
entities and oth...
References• Aziz, S. F. (2011). Counter religion or terrorism: selective enforcement of material support laws against Musl...
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Redefining "Material Support": Rethinking Counter-Terrorism Policies that Prevent Humanitarian Aid and Assistance

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This presentation was presented in December 2012 at John Jay College of Criminal Justice in the course "Capstone in International Crime and Justice". The course is the culminating course of the MA program in International Crime and Justice program that seeks to train its students to tackle current issues in international criminal justice. The presentation is based upon the paper written by the presenter for the same course.

Statement of policy problem: Current Counter-Terrorism (CT) policy has been very heavily focused on crime prevention techniques that deal with the formal sectors. However, the anti-money laundering/counter financing of terrorism (AML/CFT) regime has had a negative impact on the work of humanitarian organizations, charities and the larger NPO sector. These organizations provide another key piece to CT policy and prevention as well as critical services during crises. CT policy needs to be adjusted to prevent further abuses and marginalization of this key sector.

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Redefining "Material Support": Rethinking Counter-Terrorism Policies that Prevent Humanitarian Aid and Assistance

  1. 1. Redefining “Material Support”: Rethinking Counter-Terrorism Policies that Prevent Humanitarian Aid and Assistance By Lydia Boyer Presentation Prepared for ICJ 770 Fall 2012 Professor Natarajan 1
  2. 2. Outline • Statement of the Policy Problem • Overview of Terrorism and Counter-Terrorism ▫ Definition, UN Global Counter-Terrorism Strategy , Terrorism Financing • Counter-Terrorism ▫ Crime Control and Crime Prevention • Overview of International Counter-Terrorism Initiatives ▫ Security Council Resolutions, Sanction Regimes & Asset Freezing; FATF and FSRB‟s • Overview of “Material Support” ▫ FATF Special Recommendation VIII; Material Support Laws • Policy Problems with Material Support ▫ Scope of the Problem • Real World Examples ▫ Somalia, Gaza, US Policies, • Improving Current Policies • References* 2 *References will be given on the final slide. Images and other critical citations will be given on relevant slides, but most sources duplicated information and as a result, all factual information in this document was corroborated by numerous sources. Credit will be given to all material, authors and references used for all portions of the presentation.
  3. 3. Statement of the Problem Current Counter-Terrorism (CT) policy has been very heavily focused on crime prevention techniques that deal with the formal sectors. However, the anti-money laundering/counter financing of terrorism (AML/CFT) regime has had a negative impact on the work of humanitarian organizations, charities and the larger NPO sector. These organizations provide another key piece to CT policy and prevention as well as critical services during crises. CT policy needs to be adjusted to prevent further abuses and marginalization of this key sector. 3
  4. 4. Overview of Terrorism: Definition • No single definition ▫ “Any act of violence undertaken for the purpose of altering a government‟s political policies or actions that target those who do not actually have the personal authority to alter governmental policy.” The actions aim to “spread fear and anxiety (terror) through the population so that it will, in turn, put pressure on its leaders to change policies in a way favored by terrorists.” • Defined in 14 International Conventions – actions, means and intent. • Legal Best Practice defined by the UN Special Rapporteur on Terrorism (A/HRC/16/51) 4 Sources: Callaway and Harrelson-Stephens (2006).
  5. 5. Overview of Terrorism: UN Global Counter- Terrorism Strategy Conditions Conducive Areas of Focus Prolonged, unresolved conflicts Dehumanization of victims of terrorism Lack of Rule of Law (RoL) Human Rights violations Ethnic, national or religious discrimination Political exclusion Socio-economic marginalization Lack of good governance Financing and Material Support • FATF and FSRB recommendations • Material Support Legal and Criminal Justice Systems • Mutual Legal Assistance (MLA) Human Rights Compliance • Human Rights Law • International Humanitarian Law Strengthen International Borders Combat Transnational Organized Crime (TOC) linked to Terrorism 5
  6. 6. Overview of Terrorism: Funding • Terrorism is relatively inexpensive while it can inflict major damage. • Cutting off the financing is one of the most important components to controlling terrorism. 6 Source: Von Knop (2007).
  7. 7. Counter-Terrorism: Crime Prevention Type Local (Micro) National (Meso) International (Macro) National Action Plans National Legislation CTC/CTED, (CTITF) Data Collection Local Police National police & intelligence services INTERPOL, UNICRI, UNODC, FATF etc. Clear definition of behaviors/actions National Legislation International Law, CTC/CTED, Special Rapporteurs, FATF, etc. Primary Prevention Response Local Police National police, intelligence services, and armed forces Aid (Sector) UNDP, Foreign States, Foundations, Charities, NPO Sector Aid (Humanitarian) Local Actors National NGOs, OCHA Charities, NPO Sector, Foreign States Integration of violence prevention into social & education policies Local government National government CERD Initiatives, CTC/CTED, UNDP, OHCHR etc. Capacity Building Training initiatives for law enforcement CTC/CTED, (CTITF), (IROs), Foreign States Technical Assistance CTC/CTED, (CTITF), (IROs), Foreign States 7
  8. 8. Counter-Terrorism: Crime Prevention • Aid is one of the leading factors that helps prevent terrorism • Humanitarian Assistance has: ▫ reduced violence in conflicts ▫ prevented the return to violence • The NPO sector is critical to countering terrorism for: ▫ Development ▫ Capacity Building ▫ Provision of Aid ▫ Long-Term 8
  9. 9. Counter-Terrorism: Crime Control Targeted Sanctions (including Asset Freezing) • UNSC Initiated • National FIU Initiated Criminal Charges for Terrorism and Related Crimes • Perpetrators, Planners, etc. Programs for: • Rehabilitation • Reintegration • De-radicalization Denial of: • Asylum in Foreign Countries • Refugee Status • Travel Visas 9
  10. 10. Overview of International Counter- Terrorism Initiatives: Security Council Security Council Resolution 1373 (2001) [Chapter VII] Established the Counter Terrorism Committee (CTC) under the UNSC and required all states to implement both Crime Prevention and Crime Control Measures Resolution 1535 (2004) turned the Group of Experts for the CTC into the Counter- Terrorism Committee Executive Directorate (CTED) CTED: AML/CFT Practices Ensures all states comply with the recommendations of UNSCR 1373 (2001), including the AML/CFT provisions, including the creation of a domestic Financial Investigation Unit (FIU). The best practice has evolved that states should follow the 40 FATF Recommendations and 9 Special Recommendations. 10
  11. 11. Overview of International Counter-Terrorism Initiatives: Designation and Asset Freezing Sanctions Committees • All entities on UN Sanctions lists must have their assets frozen • All Member States must comply • Engaging with listed DTO‟s is considered as Material Support 1373 Asset Freezing • Entities listed by national FIU‟s or governments are in addition to those listed by the UN • The FIU ensures that the assets of entities on Sanctions committees are also frozen Designation • Designation not done by the UN is done by national governments • In cases of internal conflict, the majority involve a NSAG designated as a terrorist organization by the state 11
  12. 12. Overview of International Law: The AML/CFT Regime • Financial Action Task Force (FATF) ▫ International Law Enforcement Body ▫ Developed 40 Recommendations and 9 Special Recommendations for AML/CFT (40+9) • FATF Style Regional Bodies (FSRBs) ▫ Regional Bodies that perform the same function as FATF but operate in different region of the world.  APG, CFATF, EAG, ESAAMLG, GAFISUD, GIABA, MENAFATF, MONEYVAL • UN Security Council Resolution 1617 ▫ Paragraph 7 “strongly urges” that all countries use the FATF 40+9 recommendations for AML/CFT 12
  13. 13. Overview of International Law: FATF Special Recommendation VIII 13 Sources: FATF. (2012). International Standards on Combatting Money Laundering and the Financing of Terrorism & Proliferation (Revised).; Hayes, B. (2012). Counter-terrorism, „policy laundering‟ and the FATF: legalizing surveillance, regulating civil society. Transnational Institute/Statewatch. While SRVIII appears to allow for judgement to distinguish between legitimate and illegitimate entities, the FATF Interpretive Note for FATF does not.
  14. 14. AML/CFT as Situational Crime Prevention (SCP) [Formal Financial Sector Transaction] 14 Individual or Organization Seeking to Secure Funds to commit a terrorist act. Potentially guised as an NPO. Financial Investigation Unit (FIU) Funds Needed to Commit Terrorist Act – Located outside of the “Likely Offenders” accounts. Potentially Controlled by a Charity. Sources: CTED Technical Guide, FATF Recommendations Suspicious Transaction Report (STR)
  15. 15. Overview of Material Support: Definition • The exact definition varies across jurisdictions. • The US definition developed in breadth and jurisdiction. 15 1977 International Emergency Economic Powers Act: The US President may block goods to designated entities under the OFAC sanctions regime, except for Goods that “relieve human suffering” cannot be considered material support. 1996 Antiterrorism Act (ATA): Bans “material support or resources” without clarification. Includes: property, services, monetary instrument, training, expert advice or assistance, personnel or transportation. 2001 USA PATRIOT Act: Expands material support to include giving goods to any designated FTO regardless of the type of aid, of if the donor has knowledge that it will be used for terrorist ends. These crimes are not limited to US nationals on US soil. 2010 Decision of Holder v. IHL: Supreme Court case that upheld that expert advice or assistance was considered material support. NPO in this case was providing legal advice to the PKK and LTTE on taking a petition to the United Nations. Sources: HPG (2011), Hayes (2012), Drattel (2012) Material support is the Monopolization of Foreign Policy: “A ____ national cannot decide a stance (or lack thereof) on ____ conflict because _____ government has taken ______ stance.”
  16. 16. Policy Problems with Material Support AML/CFT Regime SCP to prevent the financing of terrorism The AML/CFT Regime is overly broad in its capacity and includes provision of non- financial support The AML/CFT Regime only monitors formal financial transactions The AML/CFT regime does not take into account necessary actions for humanitarian assistance and human rights protections. 16
  17. 17. How the NPO Sector is Entrapped with SCP 17 NPO Sector providing services, including humanitarian relief Any Government with Material Support Laws Civilians in High Risk Area Controlled by DTO Sources: CTED Technical Guide, Humanitarian Policy Group Policy Brief 43 (2011) Criminal Charges
  18. 18. Policy Problems with Material Support • Reduction in overall donations ▫ Donor fears of funding terrorism • Fewer number of humanitarian organizations going into high risk areas (HPG Policy Brief) • Muslim charities being targeted and hardest hit ▫ Up to 50% decline in contributions • Legal cases being brought upon aid workers, lawyers, funders, and supporters. • Lawyers providing legal services to DTO affiliates can be charged with material support –violates right to fair trial under the UDHR and ICCPR • In the US, religious affiliation does not protect an organization from being charged. • Regulations and Oversight jeopardize the neutrality of the NPO sector 18
  19. 19. Real World Examples: Costs of Providing Humanitarian Aid • Getting access to vulnerable groups ▫ “Taxes”, registration fees and aid diversion • Administrations vs. Field Workers ▫ Humanitarian “Don‟t Ask, Don‟t Tell” policy • DTO‟s or Individuals banned from receiving any aid ▫ Includes aid unrelated to terrorist activities ▫ Ex. A friend could not take them to see a movie under the UNSC 1267/1989 Sanctions Regime 19
  20. 20. Real World Examples • Somalia ▫ 2011 Famine – slow response to provide aid and relief ▫ Inability of many organizations to reach areas controlled by Al-Shabaab because of material support • Gaza ▫ Humanitarian Aid Organizations unable to provide any assistance to anyone thought to be associated with Hamas – often including medical care resulting from incidents unrelated to the conflict. ▫ 2008 – Holy Land Foundation – guilty of material support • US Case Laws ▫ Holder v. IHL (PKK and LTTE) 20
  21. 21. Improving Current Policies: Recommendations 1. States need to undertake assessments to determine the actual levels of abuse of the NGO/NPO sector and of charities by DTO‟s. 2. An independent assessment should be undertaken by UN OCHA or similar body to determine the level of abuse of the NGO/NPO sector and of charities by DTO‟s. 3. Humanitarian Aid organizations that work in high risk areas (ex. Somalia, Gaza, Mali, Afghanistan, Pakistan etc.) should be able to register with OCHA and FATF (or relevant FSRB) as a legitimate aid organizations working under International Humanitarian Law. 21
  22. 22. Improving Current Policies: Recommendations 4. FATF and FSRB‟s should work with an NGO partner(s) that can coordinate a collaboration process among civil society actors, particularly organizations that provide humanitarian aid, in order to preserve neutrality of aid workers in the field. 5. Humanitarian organizations that must pay or provide some services to DTO‟s or NSAG‟s in internal conflict to gain access to affected populations should be immune from prosecution under the AML/CFT regimes, FATF SR VIII, or material support laws. 22
  23. 23. Improving Current Policies: Recommendations 6. Definitions of membership in a terrorist organization, and participation in the planning or preparation need to exclude the provision of (a) humanitarian assistance; (b) legal advice (c) payments for access to vulnerable populations for cases of NGO‟s or NPO‟s providing legitimate services. Legal recourse and the right to an effective remedy must be upheld. 7. An initiative, undertaken either by NGO or by CTITF leadership (most likely the Human Rights Working Group) should conduct an assessment of: (a) how many material support cases through charities/NPO‟s/NGO‟s have directly lead to acts of terrorism;(b) estimations of the decline in charitable giving since 2001; and (c) a risk assessment of the global NPO sector compared to the decline in aid to determine if the policies are both necessary and proportional. 23
  24. 24. Prospects for the Future Numerous NGOs currently working on this issue – engaging states, FATF/FSRB‟s, UN entities and other relevant bodies FATF becoming more engaged with NPOs around issues of SR VIII Counter-Terrorism Committee Executive Directorate (CTED) is overseeing the implementation of UNSCR 1373 (2001) and 1624 (2005) to prevent abuse of material support in the case of NPO‟s. CTITF Working Group on Human Rights is currently looking at options for how to manage this problem. A new draft law is currently before the US Congress to make some exemptions for humanitarian actors A new study sponsored by the Norwegian government and OCHA will be released this Spring providing some key recommendations Many Think Tanks, Research Centers/Institutes and Foundations are currently holding conferences and workshops on this issue to generate recommendations on how to improve the system Dedicated humanitarian organizations continue to work against the system to provide aid despite the legal dangers 24
  25. 25. References• Aziz, S. F. (2011). Counter religion or terrorism: selective enforcement of material support laws against Muslim charities. Institute for Social Policy and Understanding. • Bialostozky, N. (2011). Engaging for peace: what are the legal limits to work with terrorists? Center on Global Counterterrorism Cooperation. Online at: www.globalct.org. • Callaway , R. and Harrelson-Stephens, J. (2006). Towards a theory of terrorism: Human security as a determinant of terrorism. Studies in Conflict and Terrorism, 29, 679-702. • Counter Terrorism Committee Website. Online at: http://www.un.org/en/sc/ctc/index.html. • Counter Terrorism Committee Executive Directorate (CTED). (2009). Technical Guide. Online at: http://www.un.org/en/sc/ctc/docs/technical_guide_2009.pdf. • Counter Terrorism Committee Executive Directorate Internal Meetings between August 22, 2012 and December 7, 2012. • Duff, D. G. (2011). Charities and terrorist financing. University of Toronto Law Journal, 61, 73-117. • Hammond, L. and Vaughan-Lee, H. (2012). Humanitarian space in Somalia: a scarce commodity. Humanitarian Policy Group and Oversees Development Institute. Online at: www.odi.org.uk. • FATF. (2012). International Standards on Combatting Money Laundering and the Financing of Terrorism and Proliferation: The FATF Recommendations. Online at: http://www.fatf- gafi.org/media/fatf/documents/recommendations/pdfs/FATF%20Recommendations%20%28approved%20February%202012%29%20reprint%20May %202012%20web%20version.pdf. • FATF. (2002). FATF Guidance Document. International Best Practices: Combatting the Abuse of Non-Profit Organizations. Online at: http://www.fatf- gafi.org/media/fatf/documents/recommendations/11%20FATF%20SRIX%20BPP%20SRVIII%20October%202003%20-%20COVER%202012.pdf. • Fowlers, A. and Kasturi, S. (2010). Embedding the War on Terror: state and civil society relations. Development and Change, 41(1), 1-27. • Freeman, M. (2001). The sources of terrorist financing: theory and typology. Studies in Conflict and Terrorism, 34, 461-475. • Gardner, K. L. (2007). Fighting terrorism the FATF way. Global Governance, 13, 325-345. • Hayes, B. (2012). Counter-terrorism, „policy laundering‟ and the FATF: legalising surveillance, regulating civil society. Transnational Institute/Statewatch. • Jamal, Z. N. (2011). Charitable giving among Muslim Americans: Ten Years After 9/11. Institute for Social Policy and Understanding. • McGoldrick, C. (2011). The future of humanitarian action: an ICRC perspective. International Review of the Red Cross, 93 (884), 965-991. • Modirzadeh, N. K., Lewis, D. A. and Bruderlein, C. (2011). Humanitarian engagement under counter-terrorism: a conflict of norms and the emerging policy landscape. International Review of the Red Cross, 93 (883), 623-647. • Parker, T. (2012). Why Right is Might: How the Social Science on Radicalism suggests that International Human Rights Norms actually help frame Effective Counterterrorism Policies. Perspectives on Terrorism, 6(3), 4-22. • Romaniuk, P. and Chowdhury Fink, N. (2012). From input to impact: evaluating terrorism prevention programs. Center on Global Counter Terrorism Cooperation. • Von Knop, K. (2007). Patterns of terrorism financing: the art of puzzling. In Centre for Excellence of Defence Against Terrorism (Ed.), Suicide as a Weapon (pp. 161-181), Ankara, Turkey. • Young, J. K. and Findley, M. G. (2011). Can peace be purchased? A sectoral-level analysis of aid‟s influence on transnational terrorism. Public Choice, 149, 365-381. 25

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