The Palestinian territories receive some of the highest amount of humanitarian aid of any place in the world from the U.S. government and charitable donors.[i] Most of this aid goes to the West Bank. The flow of aid dollars hits a significant barrier when it comes to the other Palestinian territory, the Gaza Strip. The elected government in Gaza, Hamas, was listed as a terrorist group by the U.S. in 1997, which makes providing aid in the territory a significant challenge. Economic sanctions and criminal law prohibit any aid, including money and tangible goods, to the group. This has caused concern for many charities, because any contact with Hamas, even if it is solely for the purpose of facilitating the delivery of aid to civilians, could be grounds for harsh penalties by the U.S. government.
Humanitarian Need in Gaza
Given the broad reach of the sanctions, and the impact they have on needy civilians, an escape valve was created to allow aid groups to apply for licenses from the U.S. Treasury Department that permit otherwise banned transactions. However, as one charity found out, this licensing process is marred by an overtly political, arbitrary and lengthy determination process. The Charity & Security Network obtained copies of a licensing request, and Treasury’s subsequent refusal letter, from a charity working in the West Bank and Gaza. The charity has requested that it remain anonymous and will be referred to as “Charity X.”
Charity X’s License Application: Delayed and Denied
To make a small impact in the lives of Palestinian children and families, a U.S. based charity has been providing aid in the West Bank and Gaza since 2002. Charity X primarily focuses on health and education support, both directly to Palestinian children and through local charities within the Palestinian territories. Charity X has supported initiatives in the West Bank to provide psycho-social support to children traumatized by the protracted military conflicts around them. In Gaza, it has employed local citizens to provide students attending UN-chartered school with nutritious, free breakfasts.
In the past several years, the people of Gaza have suffered from a land, sea and air blockade imposed by Israel and Egypt after Hamas became the de facto government of the territory in 2007.[ii] The blockade has left the small strip of land cut off from most goods and services, imports and exports. Additionally, economic sanctions against Hamas, imposed by Executive Order 12947 issued by President Clinton in 1995, further isolate the territory.
Sanctions against the government in the West Bank have gradually been eased over several years, but the U.S. government has made it clear that so long as Hamas is in control of Gaza, the sanctions will remain in force.[iii] Since Hamas has de facto control over the Ministries of Health, Education and Social Affairs, and has a hand in most of the day-to-day functioning of life in Gaza, Charity X was unable to fully implement its programs without some engagement with Hamas. The charity was only able to work only with UN-chartered schools and non-governmental implementing partners to avoid the U.S. sanctions. As a result, Charity X was not able to provide unfettered aid to all children and families in need.
The Licensing Process
Both groups and individuals can apply for a license from the Office of Foreign Assets Control (OFAC), the office within the Treasury Department that enforces U.S. sanctions. The license, if approved, can allow a specific group to engage in transactions with a sanctioned entity that would otherwise be illegal. However, there are few regulations governing the process, and no rules on how or when OFAC must make a determination on a licensing request.
See: 31 CFR 501.801(b)
Frustration with this lack of access made Charity X seek out a specific license from the Treasury in order to have limited contact with Hamas to facilitate the distribution of food, educational material and other services to children in Gaza. In September 2010, it applied for a license from OFAC to be able to have “permissive contact with specific ministries in order to make its programs more effective.” This included the ability to obtain permission from the Ministry of Education to provide meals for children in non-UN schools, permission from the Ministry of Health to facilitate visiting medical doctors, and contact with the Ministry of Social Affairs to obtain demographic information and poverty statistics in Gaza. The license requested that OFAC allow the charity to conduct legitimate business activities, including receiving wire transfers and leasing office space.
After sending the formal license request to OFAC, Charity X waited for a response. One month later, it received a call from an OFAC representative requesting clarification. After sending the additional information the charity again waited, for over two years. In February 2013, Charity X received a decision on its 2010 request. It read:
No further information was presented with the denial. OFAC considered the case “closed” and welcomed the charity to reapply. According to the Executive Director of the charity, during those two years without word from OFAC, “we had to revamp our processes to ensure compliance with U.S. laws, all while ensuring our work for the well-being of humanity, and those we serve...prevails.” Without the license, the charity was forced to change its plans, and was limited in the scope of the work it could conduct.
The fact that approval was required from the State Department appears to show that political considerations are weighted more than humanitarian ones when it comes to licensing decisions. The State Department has no authority for approving or denying licenses under the law that governs the U.S. economic sanction regime. It is solely the responsibility of the Treasury Department.
The “lack of foreign policy guidance” from the State Department should not be the operative consideration in a licensing request. Rather, as the Executive Director of the charity stated, “humanity, not politics” should be the chief concern for supplying aid to needy individuals in Gaza or elsewhere. Without the license, Charity X was unable to extend the reach of its aid programs to students in non-UN chartered schools. It faced greater difficulty moving in and out of Gaza, and ran into additional barriers when transferring money into the territory.
An All-to-Common Problem
As an isolated incident, the inability of this charity to get a license to provide aid to children is troubling enough. However, in other sanctions regimes similar cases abound. In Somalia, a large scale drought was exacerbated by the terrorist group, al-Shabaab, which controlled swaths of territory in Southern Somalia. Al-Shabaab, much like Hamas, acted as a de facto (thought far less organized) government in some of the areas hardest hit by drought and food shortages.[iv] Aid groups were concerned that providing food and shelter in al-Shabaab controlled areas could expose them to legal liability because of the sanctions against the terrorist group. According to a May 2013 report Commissioned by the UN and USAID, legal restrictions on aid contributions, in addition to other factors, contributed to the nearly 260,000 deaths during the famine.[v]
Interaction, an association of over 200 aid and development organizations, requested that OFAC issue a “General License” for Somalia to allow unimpeded access to starving civilians by aid groups. The General License, unlike the specific license requested by Charity X in Gaza, would have applied to all aid groups, and would have bypassed the lengthy and inefficient process of each individual group’s obtaining its own individual license. OFAC denied this request, stating only that “the situation [in Somalia] does not lend itself to a broad general license.”[vi]
If the government’s strict enforcement of sanctions against terrorist groups in Gaza and Somalia rested solely on national security grounds they might be justifiable. However, this is not the case. In Syria, a country plagued by a violent autocratic regime that routinely kills and tortures its own citizens, OFAC issued a very broad general license for humanitarian groups to provide aid in September 2011. Syria’s government, like Hamas and al-Shabaab, is currently sanctioned by the U.S. However, unlike those sanctions, the OFAC issued “Syria General License Number 11,” which allows any nongovernmental group seeking to provide humanitarian aid, democracy building, development and educational services an exemption from the sanctions.[vii]
Prof. Ken Menkhaus, an expert on Somalia attributes the unequal enforcement of the sanctions, in part, to political considerations. Menkhaus notes that, in Somalia during the famine, some within the government prioritized isolating al-Shabaab, even if it meant isolating civilians as well. He said of the sanctions against aid, “a growing and convoluted number of US counter-terrorism measures have greatly restricted the work of international humanitarian organizations working overseas.”[viii] The suffering of civilians in Somalia, Syria and Gaza is no different. Yet each country is held to a different standard based on politics, rather than humanitarian need.
The U.S. government has argued that these laws are in place to prevent the financing of terrorism. However, very little evidence exists to suggest that charities are a significant source of funding for terrorism.[ix] The sanctions ignore the principles of humanitarianism, which call for neutral and independent distribution of aid based on need alone, not on foreign policy considerations from the State Department. The importance of humanity cannot be understated. According to the Executive Director of Charity X, “our work is to be guided by the principle of humanity, not politics, yet we are caught in a labyrinth of rules and regulations created by a government that wants to control how aid is delivered, and to whom it is delivered.”
The U.S. government has a legitimate reason for wishing to cut off funding to terrorist groups. However, that concern should not supersede or be in conflict with humanitarian considerations. The licensing process exists to prevent that very problem, yet it is marred by delays and arbitrary decision making. Rather than taking responsibility for creating workable, reasonable standards and opening the door for minimal contact between a sanctioned group and a charity trying to provide aid to Palestinian children, the Treasury allowed political considerations to trump humanitarian need.
[i] The U.S. government provides an average of $600 million annually. Most of that aid goes directly to the Palestinian Authority, the ruling government in the West Bank and to the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Additional aid is provided by NGOs, both those funded through the U.S. Agency for International Development (USAID), and privately funded groups as well. Jim Zanotti. “U.S. Foreign Aid to the Palestinians.” Congressional Research Service. April 4,2012. http://www.jewishvirtuallibrary.org/jsource/US-Israel/PAaid2012.pdf
[iii] OFAC’s General License 7 permits certain transactions with the Palestinian Authority, the ruling government in the West Bank. The license was issued, “Based on foreign policy considerations resulting from recent events in the West Bank and Gaza, including the appointment of Salam Fayyad as the new Prime Minister of the Palestinian Authority and of other ministers not affiliated with HAMAS...” The license made clear that “Transactions with HAMAS, or in any property in which HAMAS has an interest, not covered by the general license remain prohibited.”
Department of the Treasury. “Global Terrorism Sanctions Regulations; Terrorism Sanctions Regulations; Foreign Terrorist Organizations Sanctions Regulations.” Federal Register 72 No. 210. Oct. 31, 2007.
[v] Francesco Checchi and W. Courtland Robinson. Mortality Among Populations of Southern Somalia Affected by Sever Food Insecurity and Famine During 2010-2012. (Rome, Washington 2013). http://www.fews.net/docs/Publications/Somalia_Mortality_Estimates_Final_Report_1May2013_upload.pdf
[vi] Letter from Adam J. Szubin, Director, Office of Foreign Assets Control to Samuel Worthington, President and CEO of InterAction. Nov. 10, 2011. http://www.charityandsecurity.org/sites/default/files/Somalia%20General%20License%20Denial.gif
[vii] Department of the Treasury. “Publication of General License Related to the Syria Sanction Program.” Federal Register 78 No. 122. June 25, 2013. http://www.treasury.gov/resource-center/sanctions/Programs/Documents/syriagl11a.pdf
[viii] Ken Menkhaus. “No Access: Critical Bottlenecks in the 2011 Somalia Famine.” Global Food Security 1 No. 1. Dec. 2012. http://www.sciencedirect.com/science/article/pii/S2211912412000053
[ix] “UPDATED: Treasury Data Shows Charities Not Significant Source of Terrorist Support.” The Charity and Security Network. March 5, 2012. http://www.charityandsecurity.org/background/Treasury_too_much_emphasis_charities%3F%20%20