To Charities and Grantmakers: Don't Pass Up This Opportunity!

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March 31, 2011
Kay Guinane

The United National Universal Periodic Review process has created an important opportunity for American charities and grantmakers to work with the United States government to align national security rules for charities with human rights obligations.

In March 2011 State Department Legal Advisor Harold Koh told the UN's Human Rights Committee in Geneva that "the United States takes it obligations under international law seriously…" These obligations include the duty to facilitate humanitarian aid to civilians in conflict zones, whether in the context of war between nations, civil war or fighting by non-state armed groups. This is part of what civil society calls the "humanitarian imperative." However, U.S. material support laws prohibit provision of all but medicine and religious materials when a listed terrorist group is involved. Life saving medical service, food, shelter and clean water cannot be provided.

The U.S. took a very positive step by committing to seek Senate ratification of Additional Protocol II to the Geneva Conventions, which lays out the standards for relief to civilians in non-international armed conflict. This effort deserves the support of the U.S. nonprofit sector when it comes before the Senate for ratification.

The current ban on material support of terrorism is so broad that it is inconsistent with human rights obligations. Executive Order 13224's revocation of the humanitarian exemption in sanctions against terrorist groups also effectively bars aid to civilians in areas controlled by listed groups. Both should be subject to review to make them consistent the humanitarian imperative, not because charities want to aid terrorist groups – we don't and we won't. But we do want to be able to talk to them when necessary to gain access to civilians in need or to convince them to lay down their arms. Under current law, this risks a long jail sentence.

The U.S. also agreed to consider the recommendations for the UN's Special Rapporteur for the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. These include best counterterrorism practices such as periodic review of emergency orders and minimum standards of due process for people and organizations put on terrorist lists. EO 13224, signed within weeks of the 9/11 attacks, needs such review. Now nearly ten years old, it created draconian powers to shut down charities without adequate notice of the reasons or opportunity to defend themselves. It needs to be replaced with long-term procedures that allow charities acting in good faith to resolve problems without being wiped out of existence. Two federal courts have ruled the process under EO 13224 to be unconstitutional. A review is an opportunity to create real due process procedures.

None of these things will happen on their own. U.S. charities and grantmakers will need to hold the U.S. government accountable for living up to the commitments made in Geneva. Then, in three years when the next review takes place, the U.S. can be a model that demonstrates that protecting human rights is good security policy.