As organizations navigate the thorny terrain of providing relief to communities in Palestine, the principles of international humanitarian law—humanity, impartiality, neutrality and independence—loom large. These are not simply lofty goals. Because the effectiveness of aid delivery relies on adherence to these principles, it is essential that any aid organization, whether based in Palestine or elsewhere, become intimately familiar with them. There is an additional advantage to understanding these principles: they can be used as the basis for challenging problematic counterterrorism clauses in contracts with donors, be they governments or private sources.
Let’s face it, donors are normally viewed as an asset rather than a hindrance, and without their generosity, most humanitarian aid organizations would not exist. Although donors provide the resources necessary to carry out an organization’s life-saving work, their contracts can also present problems in doing so.
Humanitarian aid and peacebuilding organizations are all too familiar with the proliferation of counterterrorism clauses in grants and contracts, many of which also require that those same clauses be included in sub-contracts with implementing partners. These clauses can create significant obstacles to the work of humanitarians and peacebuilders by requiring intrusive screening, monitoring and reporting.
It is important to distinguish between the “due diligence” routinely undertaken by nonprofits and the additional requirements created by donor contracts. Aid groups regularly go through a number of steps to ensure that aid reaches the intended beneficiaries. Each organization determines what is necessary based on the risks involved. These groups are also bound by the laws of their own countries, which usually require organizations to ensure that their work does not support listed “terrorists.” While this screening is the norm for humanitarian organizations, and although counterterrorism clauses in contracts often refer to their requirements as “due diligence,” they actually go beyond what is necessary to avoid or mitigate threats and become a vehicle for shifting risk from donors to aid groups. For example, one contract between a foundation and an aid organization, reads, “[Grantee] is reminded that U.S. Executive Orders and U.S. law prohibit transactions with, and the provision of resources and support to, individuals and organizations associated with terrorism. It is the legal responsibility of the Recipient to ensure compliance with these Executive Orders and laws.” It goes on to note that the grantee is also responsible for obtaining and reviewing the updated list of entities designated as terrorists by U.S. Executive Order 13224 whenever goods or services are procured. Other clauses may ask grant recipients to “certify”, “represent” or “warrant” that they are in compliance with all applicable counterterrorism laws and policies.
Aid groups faced with these clauses are then forced to reconcile their contractual obligations with their duties under international humanitarian law. When they are unable to do so, they may make the difficult decision not to aid vulnerable populations in areas, such as Palestine, that are controlled by designated “terrorists.” According to a 2014 Harvard study, An Analysis of Contemporary Counterterrorism-related Clauses in Humanitarian Grant and Partnership Agreement Contracts, some humanitarian groups determine that counterterrorism clauses compromise their neutrality and/or endanger their operating partners.
Complying with humanitarian principles can be challenging in any conflict zone. Complying with certain counterterrorism clauses may create additional problems in this regard, and ultimately negatively impact an organization’s effectiveness and beneficiaries’ rights.
The basis for humanitarian action is the inherent dignity of each person. Aid organizations should prevent and alleviate human suffering wherever it may be found. When an aid group seeks to work in Palestine, as anywhere, it should act according to the humanitarian principle of humanity.
The humanitarian principle of neutrality means refraining from taking sides in a conflict. Humanitarians do not engage at any time in controversies of a political, racial, religious or ideological nature. This principle is considered necessary to act impartially. Donor clauses that require aid organizations to disclose personal information about partners and beneficiaries undermine the organization’s neutrality. Many contracts go even further by attempting to direct the political affiliation of their beneficiaries. It goes without saying that directing grant funds only to certain politically affiliated NGOs clearly violates neutrality.
Impartiality means that assistance is delivered based solely on need. Aid should be delivered in a neutral manner, without regard to race, nationality, religion, gender, ethnic origin, political affiliation or a host of other factors. Humanitarian organizations are not in the business of making decisions of guilt or innocence of potential beneficiaries, and such considerations are irrelevant.
A counterterrorism clause that requires an organization to screen ultimate beneficiaries for links to designated groups, for example, goes against the notion that aid should be delivered in an impartial fashion. A clause may prevent an organization from working in Gaza, for example, because Hamas has been designated as a terrorist group. However, Gaza is where the greatest humanitarian need exists.
The principle of independence dictates that an organization must remain autonomous from the political, economic, military or other objectives of any actor. Donors’ political or economic objectives should not be reflected in humanitarian work, and organizations should make their own decisions regarding whom to serve, how, and where.
By remaining neutral, independent and impartial, all parties to a conflict understand that aid groups aren’t part of that conflict. It may be impossible to work within these principles 100% of the time, however, and the situation on the ground may call for compromises. Aid work gets messy.
Impact of Clauses
Counterterrorism clauses can jeopardize the safety of local implementing partners, divert resources from the business of aid delivery, and clash with humanitarian principles. Clauses that require—intentionally or inadvertently—screening to be carried out by local implementing partners, for example, can create the perception that they are doing intelligence gathering for the U.S. or other governments. This can jeopardize the safety of local partners. According to a 2011 Policy Brief by the Overseas Development Institute (ODI), it can also make it more difficult for aid organizations to gain local acceptance, which in turn can compromise access to beneficiaries. For example, two large US-based aid organizations were expelled from al-Shabaab-controlled areas of Somalia in 2008 for alleged spying and intelligence gathering. According to the ODI Policy Brief, aid organizations working outside of government funding have rejected clauses that require detailed vetting of local entities and beneficiaries and have inserted language explaining that nothing in the contract will prevent the organization from acting impartially.
Many clauses may entail checking a wider array of actors against various lists of designated “terrorists.” While humanitarian aid groups normally screen their implementing partners, contract clauses may add volunteers, board members, other donors and even beneficiaries to the array of people and entities that must be vetted. Donors may not allocate funding for the increased workload that their clauses create, even though the additional screening can consume an untold number of hours and may necessitate the hiring of additional staff. By creating onerous steps to be taken before aid is delivered, these clauses divert the resources of an organization away from humanitarian work or delay project implementation, thus compromising effectiveness.
More importantly, by forcing humanitarian aid and peacebuilding groups to engage in political considerations and adjust or cancel projects based on these findings, these clauses compromise groups’ ability to carry out their work neutrally and impartially. The vetting process can create the perception that an aid group is taking sides in a conflict, and the repercussions of this perception can be a fatal blow to a humanitarian organization’s work.
Contract Negotiation with a Humanitarian Lens
Nonprofits must first consider how the specific counterterrorism clauses in their donor agreements may impact their ability to remain neutral, independent and impartial while acting with humanity. Only then can they consider how best to negotiate for amendments to the contract that will better enable the organization to adhere to these principles. According to the 2014 Harvard study, some donors, ironically, frame their counterterrorism clauses in terms of humanitarian principles, with specific mention of ensuring that aid reaches intended beneficiaries. Organizations must be mindful of all the potential ways these clauses can interfere with their work.
The Harvard study also notes that the language in many counterterrorism clauses is sufficiently vague as to create room for interpretation. Phrases such as “best efforts,” “reasonable efforts” and “good faith” may give aid organizations enough room to negotiate the specific obligations that will be imposed. In these conversations, aid groups can emphasize that their current “due diligence” practices are sufficient to avoid aid diversion and that adhering to humanitarian principles makes their work more effective. Fortunately, these humanitarian principles, which apply to all situations of armed conflict, have international recognition and are enshrined in international humanitarian law, via the Geneva Conventions and their Additional Protocols, and/or customary international law.
Groups working in Palestine must build the skills and expertise to address all of these issues and to anticipate new concerns, not only for ethical reasons. It is essential for the effectiveness of their work.
Andrea Hall is an attorney with more than a decade of experience as a writer and editor, primarily of regulatory compliance publications. She serves as a State Death Penalty Abolition Coordinator for Amnesty International USA and coordinated Amnesty's work - advocacy, lobbying and grassroots organizing - on the successful Maryland death penalty repeal campaign. She has been invited to speak on the topic at regional and national conferences.
Ms. Hall received a B.A. in Communications from Trinity University in San Antonio, Texas, and a J.D. from the University of Richmond, where she was the Lead Articles Editor of the Law Review, founded the Public Interest Law Association, and received the Nina R. Kestin Service Award at graduation. She is a member of the Virginia State Bar.
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