1 This article uses the term “counterterrorism measures” to cover laws and other measures whose objective is preventing and suppressing acts of terrorism. They can include measures criminalizing certain acts of violence or support to persons or groups designated as terrorist as well as sanctions that prohibit making funds or other assets available directly or indirectly to such persons or groups. It uses the term “sanctions” to refer to sanctions imposed for other objectives, either in relation to specific contexts, or “horizontally” to achieve specific policy objectives such as, for example, the promotion of human rights.

2 This article uses the terms “funding agreements” and “grants” interchangeably.

3 The restrictions may have other objectives too, like promoting the donor's political agenda in a particular context. For example, the restrictions on contact with Hamas in the United States Agency for International Development's (USAID's) funding agreements for Gaza are aimed at not giving Hamas any political legitimacy or visibility. USAID/WEST BANK/GAZA, April 26, 2006, Notice No. 2006-WBG-17, and USAID/WEST BANK/GAZA, June 21, 2007, Notice No. 2007-WBG-18.

4 For a thorough and still relevant analysis, see Counterterrorism and Humanitarian Engagement Project, “An Analysis of Contemporary Counterterrorism-related Clauses in Humanitarian Grant and Partnership Agreement Contracts”, Research and Policy Paper, May 2014, available at: http://blogs.harvard.edu/cheproject/files/2013/10/CHE_Project_-_Counterterrorism-related_Humanitarian_Grant_Clauses_May_2014.pdf (all internet references were accessed in September 2021).

5 For the sake of clarity, the present article uses the term “beneficiaries” as this is the expression that is used in the discussions on requirements in funding agreements. It is important to note that this term has been criticized because of its connotation of passivity and failure to recognize people's agency, and that humanitarian organizations are increasingly using other expressions such as “crisis-affected people”, “clients”, or “participants”, and, in development work, “target group” or “change agents”. See, for example, Dayna Brown and Antonio Donini, “Rhetoric or Reality? Putting Affected People at the Centre of Humanitarian Action”, ALNAP/ODI, London, 2014, available at: https://reliefweb.int/sites/reliefweb.int/files/resources/alnap-rhetoric-or-reality-study.pdf.

6 UN Joint Steering Committee to Advance Humanitarian and Development Collaboration, “The New Way of Working”, available at: https://www.un.org/jsc/content/new-way-working.

7 See examples in Counterterrorism and Humanitarian Engagement Project, above note 4, p. 24; and Kate Mackintosh and Patrick Duplat, “Study on the Impact of Donor Counter-Terrorism Measures on Principled Humanitarian Action”, 2013, pp. 47–71, available at: https://www.nrc.no/globalassets/pdf/reports/study-of-the-impact-of-donor-counterterrorism-measures-on-principled-humanitarian-action.pdf. While dated, these give examples of the different approaches.

8 USAID, “ADS Chapter 319 – Partner Vetting”, revised January 2021, available at: https://www.usaid.gov/sites/default/files/documents/319.pdf. In March 2021 USAID Partner Vetting is required for USAID contracts and assistance agreements for Afghanistan, Iraq, Lebanon, Pakistan, Syria, Yemen and the West Bank and Gaza. USAID, op. cit., Chapter 319.1. USAID can impose additional vetting requirements. For example, in relation to Gaza it requires recipients of funds to also provide information on beneficiaries who received more than a specified amount of assistance or participated in training.

9 Neal Cohen, Robert Hasty and Ashley Winton, Counterterrorism and Humanitarian Engagement Project, “Implications of the USAID Partner Vetting System and State Department Risk Analysis and Management System under European Union and United Kingdom Data Protection and Privacy Law”, Research and Policy Paper, March 2014, available at: http://blogs.harvard.edu/cheproject/files/2013/10/CHE-Project-US-Partner-Vetting-under-EU-and-UK-Data-Protection-and-Privacy-Law.pdf. While the precise details of the vetting programmes may have changed since this paper was published, the data protection concerns outlined endure, and have probably become more acute following the adoption of the EU Global Data Protection Regulation.

10 The UN Security Council Islamic State of Iraq and the Levant (ISIL)/Al-Qaeda sanctions, for example, include an exemption to the financial sanctions for funds and other financial assets or economic resources “necessary for basic expenses, including payment for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges, or exclusively for payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services”: UN Security Council Resolution 2368 (2017), UN Doc. S/RES/2368 (2017), 20 July 2017, section 81(a). The exemption covers both aspects of financial sanctions. It allows frozen assets to be used for these purposes, and also the relevant goods or services to be provided.

The EU's autonomous counterterrorism sanctions include a similar exemption “for essential human needs of a natural person included in the list referred to in Article 2(3) or a member of his family, including in particular payments for foodstuffs, medicines, the rent or mortgage for the family residence and fees and charges concerning medical treatment of members of that family”: Council Regulation (EC) No 2580/2001 of 27 December 2001, on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, Art. 5(2)(a).

Although reference is made here just to sanctions imposed for counterterrorism objectives, similar exemptions for the benefit of designated persons are systematically included in financial sanctions in UN and EU country-specific sanctions.

11 European Commission, Commission Notice, Commission Guidance Note on the Provision of Humanitarian Aid to Fight the COVID-19 Pandemic in Certain Environments Subject to EU Restrictive Measures, C(2021) 5944 final, 13 August 2021, pp. 7, 9, 13, 17, 19, 31, 41, 47–8 and 51.

12 Ibid., pp. 13, 24, 33, 45 and 51.

13 Training falls within the scope of prohibited support as a matter of criminal law under the US Material Support Statute, U.S.C. § 2339A.

14 The term “fighter”, while not found in IHL treaties, is used colloquially to refer to members of States’ armed forces and of organized armed groups. The definition of “wounded and sick” for the purposes of IHL requires fighters to be refraining from acts of hostility: ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd edition, 2016 (hereafter ICRC Commentary), para. 1345.

15 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (GC I), Art. 12; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (GC II), Art. 12; Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 10; and Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II), Art. 7.

16 Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (GC III), Arts 15 and 25–30; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Arts 89–92; and AP II, Art. 5.

17 GC IV, Arts 55, 56 and 59; common Arts 3 and 9/9/9/10 of the GCs, AP I, Arts 69–71; and AP II, Art. 18(2). See generally, Dapo Akande and Emanuela-Chiara Gillard, “Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict”, 2016, available at: https://reliefweb.int/sites/reliefweb.int/files/resources/Oxford%20Guidance%20pdf.pdf.

18 GC IV, Arts 50 and 94; and AP II, Art. 4(3).

19 Irish Aid, “Irish Aid Programme Grant II (2017–2021) and HPP (2019–2021) Programme Cycle Management Guidelines 2019”, para. 41, available at: https://www.irishaid.ie/media/irishaid/whatwedo/respondingtoemergencies/Programme-Grant-II-and-Humanitarian-Programme-Plan-2019-PCM-Guidelines.pdf.

20 SIDA, Grant Agreement for Humanitarian Action, September 2019, section 13.6. On file with authors.

21 European Commission, Directorate-General for European Civil Protection and Humanitarian Aid Operations (ECHO), “Humanitarian Aid (HA) General Model Grant Agreement”, November 2020, Annex 5, pp. 76 and 77, available at: https://www.dgecho-partners-helpdesk.eu/download/referencedocumentfile/162.

22 European Commission Service for Foreign Policy instrument letter of 6 February 2019 to Deputy Controller, UN and Deputy Director of the UN Development Programme. On file with authors.

23 Anti-terrorism certifications are not required for inter alia public international organizations: US Government Accountability Office, Report to Congressional Committees, West Bank and Gaza Aid, GAO-21-332, March 2021, p. 11.

24 USAID, “Certifications, Assurances, Representations, and Other Statements of the Recipient: A Mandatory Reference for ADS Chapter 303”, partially revised 18 May 2020, Part I.4, available at: https://www.usaid.gov/sites/default/files/documents/1868/303mav.pdf (emphasis added).

25 See, for example, USAID Mission Order 21 in relation to the West Bank and Gaza. The precise vetting requirements are set out in US Government Accountability Office, Report to Congressional Committees, West Bank and Gaza Aid, GAO-21-332, March 2021, p. 8. Similar requirements also apply in relation to operations in Syria: USAID, “Syria Vetting Standard Operating Procedures”, 25 May 2016, available at: https://www.usaid.gov/sites/default/files/documents/1866/USAID_Syria_Vetting_Procedures_04-25-2016.pdf.

26 USAID, Standard Provisions for Cost-Type Agreements with Public International Organizations (PIOs) – A Mandatory Reference for ADS Chapter 308, partially revised 4 December 2020, pp. 15–16; USAID, Standard Provisions for U.S. Nongovernmental Organizations – A Mandatory Reference for ADS Chapter 303, partially revised 18 May 2020, section M12; and USAID, Standard Provisions for Non-U.S. Nongovernmental Organizations – A Mandatory Reference for ADS Chapter 303, partially revised 31 March 2021, pp. 24–5. While the obligations imposed on NGOs are significantly more onerous, there are also significant variations in the nature of the obligation imposed on various types of public international organizations.

27 The precise requirements vary from context to context. Some of the clauses in funding for operations in Iraq/Syria exclude “civilian populations who only resided in areas that were at some point in time controlled by the groups” from the pre-authorization requirements. Personal interviews, November 2020.

28 Obi Anyadicke, “Aid Workers Question USAID Counter-terror Clause in Nigeria”, The New Humanitarian, 5 November 2019, available at: https://www.thenewhumanitarian.org/news-feature/2019/11/05/USAID-counter-terror-Nigeria-Boko-Haram. See also, Norwegian Refugee Council (NRC), Private Briefing Note, Lake Chad Basin Clause, May 2019.

29 ECHO is responsible for overseas humanitarian aid and civil protection.

30 In January 2021 DEVCO became the Directorate-General for International Partnerships (INTPA). It formulates the EU's development policy abroad. Other parts of the European Commission that use the same General Conditions include the Directorate-General for Neighbourhood and Enlargement Negotiations (DG NEAR), the Service for Foreign Policy Instruments (FPI) and the Directorate-General for Structural Reform Support (DG REFORM).

31 “Annex I: General Conditions Applicable to European Union-Financed Grant Contracts for External Actions Financed by the European Union or by the European Development Fund”, July 2019, Art. 7.4, available at: https://www.eucap-som.eu/wp-content/uploads/2020/01/B2-Annex-I-General-Conditions.pdf.

32 The clause is included in the 2020 version of the “PRAG”, the Practical Guide on Contract Procedures, applicable to European Commission funding for international cooperation and development work other than civil protection and humanitarian aid operations by ECHO: Basic Rule 2.4, available at: https://ec.europa.eu/europeaid/prag/document.do?nodeNumber=1.

33 Good Humanitarian Donorship Initiative, 24 Principles and Good Practice of Humanitarian Donorship, Principle 1.

34 ICRC Commentary, above note 14, para. 811.

35 Caution should be exercised when using the expression “natural disasters”. See, for example, Ksenia Chmutina, Jason von Meding, J. C. Gaillard and Lee Bosher, “Why Natural Disasters Aren't All That Natural”, openDemocracy, 14 September 2017, available at: https://www.opendemocracy.net/en/why-natural-disasters-arent-all-that-natural/.

36 Declaration on the Right to Development, adopted by General Assembly Resolution 41/128 of 4 December 1986.

37 UN Committee on Economic, Social and Cultural Rights, General Comment 8 on the Relationship between Economic Sanctions and Respect for Economic, Social and Cultural Rights, UN Doc. E/C.12/1997/8, 12 December 1997, paras 12 and 14.

38 UN Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4, 11 August 2000, para. 41.

39 The Paris Declaration is based on the following five partnership commitments:

• •

  • Ownership: Developing countries set their own strategies for poverty reduction, improve their institutions and tackle corruption.

• •

  • Alignment – Donor countries align behind these objectives and use local systems.

• •

  • Harmonisation: Donor countries coordinate, simplify procedures and share information to avoid duplication.

• •

  • Results: Developing countries and donors shift focus to development results and results get measured.

• •

  • Mutual accountability: Donors and partners are accountable for development results. Available at: https://www.oecd.org/dac/effectiveness/parisdeclarationandaccraagendaforaction.htm#:~:text=The%20Paris%20Declaration%20on%20Aid%20Effectiveness&text=It%20gives%20a%20series%20of,other%20accountable%20for%20their%20commitments

.

40 UN, “Future We Want – Outcome Document”, available at: https://sustainabledevelopment.un.org/futurewewant.html.

41 U.S. Department of State, “State Department Terrorist Designations of ISIS Affiliates and Leaders in the Democratic Republic of the Congo and Mozambique”, 10 March 2021, available at: https://www.state.gov/state-department-terrorist-designations-of-isis-affiliates-and-leaders-in-the-democratic-republic-of-the-congo-and-mozambique/.