The Harvard Law School/Brookings Project on Law and Security published a May 2014, An Analysis of Contemporary Counterterrorism-related Clauses in Humanitarian Grant and Partnership Agreement Contracts that takes an in-depth look at donor-imposed counterterrorism obligations on humanitarian organizations. A related study, An Analysis of Contemporary Anti-Diversion Policies and Practices of Humanitarian Organizations, which focuses on the range of policies and procedures used by these groups to prevent diversion of resources to terrorists was published along side the grant study and will be summarized next week.
The study on grant and contract clauses found that donors – governments, UN and private – are increasingly “including counterterrorism-related clauses in humanitarian grant and partnership agreements” and that these “may present a number of obstacles to humanitarian organizations.” Such clauses have created confusion, costly administrative burdens, tensions between humanitarian and ethical principles and in some cases “posed an obstacle to the effective implementation of principled humanitarian action strategies across a range of diverse situations.” One of the key trends noted in the report are that there is a perception that Muslim-identified organizations are subject to disparate treatment.
Many of the problems derive from donors’ use of template language that is not necessarily appropriate for different types of projects. In addition, humanitarian organizations vary in their ability to negotiate better terms. The study found that the groups with the most negotiating power were those with “strong reputations and that framed their programming not in the language of counterterrorism or security but in terms of pursuing principled humanitarian action, which entails extensive due diligence, risk analysis assessment, and monitoring and evaluation…”
Two organizations were able to negotiate clauses that recognized international humanitarian law obligations. The relevant language in these clauses is as follows:
“Partner shall at all times act in accordance with humanitarian principles as enshrined in international humanitarian law and other relevant international instruments. These principles include but are not limited to humanity, neutrality, independence and impartiality. In accordance with these principles, [Grantee] shall take reasonable measures in the prevailing circumstances to ensure that all funds, goods and resources are utilized for the benefit of the needy based on these principles.” (Annex 6C)
“It is the policy of [Grantor] to seek to ensure that none of its funds are used to provide support to individuals or entities associated with terrorism. In accordance with this policy, as well as applicable sections of the Geneva Conventions, the Recipient undertakes to use reasonable efforts to ensure that its activities are victim-oriented and have not been designed to assist parties to a conflict….” (Annex 2F)
The report describes characteristics of counterterrorism clauses, including a range in the standard of effort to avoid diversion that is required (from “reasonable” to “all means necessary”), due diligence practices, certification statements and list checking.
The study concludes with four potential “inflection points” on how the humanitarian community might respond to the problems created by grant and contract clauses. These include the questions of whether or not to develop sector-wide standards, seek clear and concise language or take advantage of ambiguity, identify red-lines (such as refusal to conduct list checking on beneficiaries) and give more power to organizations’ headquarters to dictate terms of operation in the field.