When the United Nations Security Council adopted Resolution 2462(2019), aimed at combating the financing of terrorism, it included language meant to protect humanitarian action. Just Security’s Nathalie Weizmann did an excellent job outlining the reasons such safeguards are necessary and situating the included language in various provisions of national and international law. Indeed, there is a substantial amount of support in law and practice for ensuring that counterterrorism measures do not unduly impact humanitarian action.
Unfortunately, in our view, UNSCR 2462 fails to effectively mitigate against its potential impacts on humanitarian action and humanitarians’ longstanding concerns. The responsibility for that failure rests largely with U.N. member states and their overzealous approach to combating terrorism and the financing of terrorism (CFT), but also, to a lesser degree, with the humanitarian community, which has often failed to articulate the full extent of the impact and threats posed by the CFT agenda to our mission.
Governments certainly need to design approaches to effectively tackle the threat of terrorism. Indeed, humanitarian organizations, their staff (us and our colleagues), and the vulnerable communities they serve, are often particularly threatened by terrorism and other acts of violence against civilians. In our view, any effective response to terrorism should deter and prevent violence against civilians as well as create the enabling conditions for them to survive and live in dignity. To do this requires a more honest and nuanced dialogue between humanitarian organizations and member states than has taken place to date. We believe in particular that the current approach to developing and implementing counterterror measures where humanitarian crises are taking place suffers from two critical shortcomings.
Closing Humanitarian Space: Preserving Norms at the Expense of Clear Policy
As Nathalie mentioned in her post last month, CFT and international law regarding humanitarianism come into tension when CFT and other counter-terror measures prohibit conduct that is protected under international law. Broadly, the Geneva Conventions and customary international law oblige states to refrain from arbitrarily refusing offers of impartial humanitarian assistance. Other prohibitions under IHL, including the prohibition on the starvation of the civilian population, also provide a basis on which humanitarian assistance should be permitted and facilitated. The Red Cross Movement, the work of the International Law Commission, and the Committee on Economic, Social, and Cultural Rights have all weighed in on the right to offer and receive humanitarian assistance, not only during armed conflicts, but more generally when rights are threatened. But what exactly is required of states and armed groups remains heavily contested. What constitutes humanitarian action? Which organizations may offer their services? What constitutes a constructive refusal of an offer, and under what circumstances is it arbitrary? These questions, and many others, remain unresolved.
Unfortunately, the approach taken in the recent U.N. Security Council resolution is merely to reiterate that legal obligations exist and insinuate that they may constrain certain counterterror measures – without explaining the content or effect of those obligations. The Security Council decided that states shall establish serious criminal offenses relating to CFT “in a manner consistent with their obligations under international law, including international humanitarian law, international human rights law and international refugee law” – largely in response to an outcry by international organizations. Later in the resolution, language on international law merely “urges” states to “take into account” their legal obligations when designing CFT interventions.
Next to the Council’s precise definition of the kinds of CFT action states are required to take, its broad exhortations to comply with legal obligations make humanitarianism sound like an afterthought – which, in this process, it in fact was. It is possible that a few states have both the legal capacity and political commitment to humanitarianism to interpret this language in a way that affords protections – but most likely do not. These vague safeguards are likely to prevent the erosion of protections for humanitarian action in law– (which is important in order to avoid the criminalization of humanitarian assistance outright), — but we do not think they are enough to stem the tide of creeping restrictions on and obstacles to life-saving aid in practice.
A better way would have been to also explicitly name the circumstances in which payments to and transactions with designated terrorist entities should not be subject to criminal prosecution and sanctions enforcement. This was the approach that U.S. NGOs, working together with members of Congress, took in the drafting of the Humanitarian Assistance Facilitation Act of 2013. The legislation – introduced following the U.S. government’s slow issuance of a license to enable humanitarian assistance during the famine in Somalia in 2011 and 2012 – was never adopted because the US Treasury and Justice Departments opposed a legislative solution to the problem, with Treasury adopting guidance on humanitarian assistance and sanctions that falls short of what NGOs outlined. Still, it lays out a blueprint for principled humanitarian assistance without diminishing the government’s authority to pursue designated terrorist entities. The bill stated that U.S. sanctions and criminal prohibitions on material support to terrorist organizations do not apply when they are:
- Necessary and incidental to bona fide humanitarian activities; and the organization making the payment:
- Has the intention of furthering only humanitarian aims and
- Makes best efforts to minimize benefits to the listed group.
Approaches to build carve-outs like the Somalia case should not be overly rigid. They should allow for flexibility as humanitarian action and terrorism each evolve. And in order to ensure progressive development of the law, it will require collective efforts from humanitarian, human rights and peacebuilding organizations to challenge restrictions and other negative state practice.
Ignoring the Growing Trend of Financial Exclusion
Independent studies have noted a severe decline in access to the global financial system for non-profit organizations, remittance companies and certain types of banks. In general, this is due to an increase in the perceived costs and risks associated with these customers (including sanctions enforcement, civil liability, criminal liability, capitalization requirements, the costs of compliance) and a lack of commensurate increase in profitability in providing them with banking services . Some banks, remittance companies, and non-profits associated with very high levels of risk have seen their international financial transactions and transfers canceled or delayed, and many have been de-banked altogether – even when they are not subject to any allegations of wrongdoing – putting people who depend on them in peril. The trend of banks’ curtailing engagement with law-abiding customers, because the costs and consequences of maintaining that engagement outweigh the potential rewards, has become known as bank de-risking.
Bank de-risking affects not only development and humanitarian responses (by creating impediments to the transfer of money to and from poor and vulnerable people), but also to counterterrorism and anti-money laundering efforts: As financial institutions are forced outside the formal financial system, they and their customers become more likely to utilize informal mechanisms for sending and receiving money – reducing transparency to customers and governments alike.
UNSCR 2462 specifically calls for greater scrutiny of the risks associated with a number of financial tools that, in some countries, represent the most practical working channels for cross-border financial flows. This includes cross-border transportation of cash, pre-paid cards and money transfer operators. It is particularly concerning that the resolution mentions hawalas by name. While it was referenced correctly as a type of informal money/value transfer network, the term is often misunderstood to mean any small money transfer operator serving a predominantly Muslim clientele (this is partly due to prejudice and partly because hawala means “transfer” in Arabic and Somali, and so is often applied by Arabic speakers to any money transfer company or network, regulated or not). Using such a widely misunderstood term in the resolution risks stigmatizing and marginalizing legal, regulated cash transfer mechanisms that are a lifeline for hundreds and millions of people.
Of course, we welcome the extension of regulation to all of these mechanisms. They should be brought into the light, where there is greater trust between customers, providers and governments. What we fear is that calling out these mechanisms as deserving special scrutiny will have the opposite effect. Rather than submit to regulation, the companies and organizations that carry out or rely on these mechanisms may be forced into the shadows – either because they themselves cannot open bank accounts or because governments crack down on them. That would defeat the very goals that the relevant language seeks to achieve.
Perhaps the most substantial problem posed by Resolution 2462 (and evident in its negotiation) is that it is likely to accelerate de-risking trends more generally. Its heavy emphasis on beefing up enforcement will contribute to escalating the costs and consequences of banking at-risk customers without providing incentives or outlining requirements to continue to provide them with financial services. That means these at-risk customers – nonprofit organizations, respondent banks seeking access to international markets, and remittance companies – will struggle to maintain bank accounts and transfer money, at the expense of the world’s poorest people. In fairness to negotiators, Resolution 2462 was negotiated largely to be consistent with the outcomes of the Financial Action Task Force (FATF) – which itself is more focused on mitigating money laundering and terrorist financing than promoting development or humanitarian response. Nonetheless, this does not absolve the Security Council –from the responsibility to identifying the threat of financial exclusion and agreeing on strong language to combat it.
A course correction is sorely needed
Principled humanitarian action requires a much more robust defense than it has received in recent years. The issues raised by Resolution 2462 are making our daily operations much more challenging. We will continue to raise the impact that terrorism and efforts to defeat it have on our ability to operate in a principled, effective and transparent manner. But U.N. Security Council member states must be much more cognizant of the wider impact of their efforts, and a frank and honest conversation about this at U.N. headquarters is increasingly overdue. If it does not take place soon, we fear that the humanitarian and CTF agendas will remain on a needless collision course, increasing the risk for humanitarian actors who are simply trying to save lives.
This piece has been written in a personal capacity. The views expressed here are those of the authors and do not necessarily reflect the views of Oxfam.
Image: Displaced Syrians, who fled their homes in Deir Ezzor city, carry boxes of humanitarian aid supplied by UNICEF at a refugee camp in Syria in February 2018. Photo: DELIL SOULEIMAN/AFP/Getty Images