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"[P]roscribed groups in those areas … are the gatekeepers. How can we go through the gatekeepers to reach the neediest people in Syria [or] Somalia?"
Above are the words of Dr Hany El-Banna, Chairman of the Muslim Charities Forum, giving evidence to a Parliamentary Joint Committee. Dr El-Banna’s concern lies with the UK’s “monstrously” broad Terrorism Act 2000, sections 16 and 17 of which criminalise the making of “money or other property” available to a group when the provider “knows or has reasonable cause to suspect that it will or may be used for the purposes of terrorism”. In other words, recklessly or unintentionally providing money or property to terrorists can result in you being labelled a supporter of terrorism. The label comes packaged with a potential 14 years behind bars.
The UK is not alone. As the rubble of the World Trade Centre smouldered, the United Nations Security Council was drafting Resolution 1373 (2001). Once enacted, it required all member states to criminalise, among other things, the financing of terrorism. There have since been numerous resolutions which have galvanised states around the issue and the hawkish gaze of the Financial Action Task Force continues to put pressure on nations to indict the financiers of terror.
As a result, the vast majority of states have now updated their criminal codes and/or ratified the UN Terrorist Financing Convention.
The Problem
While the rationale underpinning these provisions is to starve terrorist groups of financial resources, the unfortunate side-effect of casting the net so widely is that we risk literally starving the civilians under the control of terrorist groups.
Take the Islamic State as an example. We are continually disgusted by their senseless campaign of violence against people both within and outwith the territories of Iraq and Syria. As such, we rightly label them a terrorist organisation. However, the Islamic State is simultaneously a party to an armed conflict. The large swathes of territory which it controls still contain civilians like you and I. Recently, the UN Secretary General estimated that around 13.5 million of those civilians are in need of humanitarian aid.
Unfortunately, aid workers are growing increasingly wary of working in areas under the control of groups like the Islamic State due to stringent counterterrorism laws which are often coupled with extraterritorial jurisdiction – meaning that one state can prosecute you for crimes committed abroad. Similarly, the European Union is currently finalising a Directive which, if implemented, will oblige all member states to couple their terrorism financing provisions with extraterritorial jurisdiction.
One of the key problems, identified by Dr El Banna (above), is that aid workers may have to pay fees to armed terrorists at checkpoints to access civilians. In so doing, they risk being prosecuted. In fact, Lord Ashton recently confirmed the UK Government’s position that paying gate-keepers is criminal.
Tip of the Iceberg
Many countries, like the United States, go much further. They criminalise the provision of ‘material support’ to terrorists. This is defined extremely broadly and the US Supreme Court made clear that even advising members of such groups about how to negotiate peaceful agreements or engage in political advocacy could constitute a criminal offence.
What this means is that actively trying to prevent terrorist violence by talking to fighters and negotiating peacefully might just land you in jail. In a study I worked on I found that a number of European nations already have ‘material support’ provisions. Perhaps even more worryingly, the EU Draft Directive mentioned above also seeks to oblige all member states to criminalise providing ‘material support’ to terrorist groups.
As a result of decisions and provisions like these, Ben Emmerson QC recently found that many charitable organisations have started to self-censor and avoid areas under the control of armed groups. In his words, ‘material support’ provisions are having a “chilling effect on NGO operations”.
What makes this something of a catch-22 situation is that the criminalisation of real terrorist financing is an obvious necessity. This was clearly demonstrated, in 2013, when a Birmingham-based terror cell sought to use money raised under the guise of charity to design an attack based on the 2005 London bus bombings. Again, in the UK this year, an individual was convicted for raising money for terrorists via Twitter.
However, these cases have resulted in a global push to tighten the noose around the neck of legitimate charities looking to inject aid into crisis zones – charities now at risk of being unfairly labelled supporters of terrorism.
Balancing Act
From the above it should have become clear that a careful balance needs to be struck between suppressing actual terrorist financing and permitting principled humanitarianism. When money and other forms of aid are being injected into areas under the control of an armed group, lawmakers must accept that the accrual of some benefit to the association is inevitable. Equally, humanitarian workers must accept that the rules governing charities are often flouted by terrorist groups looking to covertly raise money for malicious organisations.
In seeking to reach an acceptable compromise between security and humanitarianism there are a number of options open to legislators. They could create a provision allowing for a judge to assess the status of a group before criminality can arise; or mimic the criminal codes of Australia, New Zealand and Sweden, all of which provide an exemption for humanitarian action. Additionally, proof of specific intention – rather than negligence or recklessness – to participate in a criminal act could be required to support a conviction. Finally, a requirement that use actually be made of the 'material support' to commit an offence would prevent peaceful political advocacy and nominal fees being considered criminal.
All of the above are viable and states which criminalise the financing of terrorism should reform their laws swiftly, before more civilians – involuntarily placed under the tyranny of criminals – are left to starve.