Last month, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) took a historic step to address the draconian impacts of sanctions on nongovernmental organizations (NGOs) by issuing and amending a series of general licenses (GLs) aimed at expediting the delivery of key foreign aid in complex humanitarian contexts. For the past decade, the Alliance for Peacebuilding (AfP), and a coalition of over 50 humanitarian, peacebuilding, and human rights NGOs, have pushed policy and lawmakers to fix the increasingly recognized problems of broad legal restrictions on giving “material support” to foreign terrorist organizations (FTOs), as they inhibit NGOs from providing assistance to vulnerable populations in FTO-controlled territory and from resolving violent conflict.
The “carveouts” in the new GLs include authorizations for U.S. business, certain international organizations such as the United Nations, and NGO activities related to disaster relief, health services, democracy support, education, environmental protection, and peacebuilding, among others. The issuance of these GLs is an acknowledgment of the unintended consequences of sanctions that prevent much needed peacebuilding and humanitarian assistance and will begin to untie NGOs’ hands by reducing the threat of criminal sanctions and allow U.S. foreign assistance – through the life-saving work of NGOs – to better address the drivers of violent conflict and extremism. However, Congress needs to pass legislation that codifies and expands these vital protections. Without this critical step, NGOs will continue to face the uncertainty that U.S. policy may shift with a change in administrations and that banks will be disincentivized from assisting NGOs conduct their work.
Material Support Laws Criminalize Vital Peacebuilding and Humanitarian Programs
After 9/11, Congress adopted broad legal restrictions on providing “material support” to FTOs. While it did not design these well-intentioned laws to limit programs working to end conflicts, reduce violence, and build sustainable peace, the effect has chilled NGO activity, despite the robust safeguards peacebuilding and humanitarian organizations use to prevent the diversion of funds to FTOs. The potential criminal and civil consequences can prove too risky for NGOs, often resulting in their decision to withhold the delivery of vital services and programs, a trend which ultimately deprives vulnerable populations of the critical aid and programs they needed to build sustainable peace and security. Although the Secretary of State, with concurrence of the Attorney General, has the authority to create exceptions for providing “personnel,” “training,” or “expert advice or assistance,” the State Department has been reluctant to exercise this waiver under both Democratic and Republican administrations.
The Antiterrorism and Effective Death Penalty Act (AEDPA), which created the criminal prohibition on providing material support to designated FTOs, has been broadly interpreted by the courts and bipartisan administrations. Under AEDPA, NGOs face criminal repercussions for providing assistance that advances peacebuilding, conflict prevention, and disarmament, demobilization, and reintegration (DDR) of violent extremists. For instance, NGOs are prohibited from providing training for FTO members on how to participate in peace negotiations or implement demobilization and reintegration processes. More alarmingly, the laws prohibit even incidental transactions with the FTOs, such as paying road tolls or utility bills in areas controlled by FTOs, which further reduces an NGO’s ability to operate under such risks, even to provide basic humanitarian assistance.
In Holder v. Humanitarian Law Project, the Supreme Court said that while Congress has broad discretion to determine the definition of “material support,” it has failed to do so. The Court then considered the particular facts of the case and found that organizations could not provide conflict resolution training to the Kurdistan Workers’ Party in Turkey and the Liberation Tigers of Tamil Eelam in Sri Lanka because doing so would qualify as material support in the absence of a Congressional definition.
In addition, under the International Emergency Economic Powers Act (IEEPA), the executive branch may impose sanctions on FTOs through executive orders (EOs), a tool it has used to create civil liability for violating the material support prohibition and to impose substantial fines. The EOs do not define “material support,” but generally incorporate the broad AEDPA definition, and as a result, further deter peacebuilding and humanitarian NGOs because that assistance could be construed as “material support” to an FTO.
Notably, OFAC can and does provide “specific licenses” (SLs) to NGOs and other entities that permit otherwise prohibited transactions with sanctioned individuals and organizations. However, the application review process is slow,burdensome, and often unsuccessful and, based on NGO experience, inhibits the timely delivery of life-saving and life-changing assistance to crisis and conflict affected communities. In conflicts such as those in Syria and Iraq, NGOs and U.S. government agencies faced significant obstacles in obtaining SLs for peacebuilding and humanitarian activities. Even when SLs are issued, risk-averse banks often refuse to transfer funds to NGOs operating in these contexts. Concerns remain that the GLs provided in December may not provide enough cover to financial institutions to facilitate behavior change and transfer funds to NGOs operating in sanctioned contexts.
In 2011, Senator Patrick Leahy criticized the material support prohibition during the Somalia famine:
The current law is so broad as to be unworkable…. It also limits the actions of individuals and NGOs engaged in unofficial diplomacy and peacebuilding. These actors often engage in informal negotiations that serve United States interests and have no intent to support terrorist movements.
There are numerous examples that demonstrate how these prohibitions prevent the U.S. government and U.S.-based and funded NGOs from providing vital assistance to prevent and reduce violent extremism. In Nigeria, NGOs could not provide assistance to the kidnapped Chibok girls released from Boko Haram captivity because of their affiliation to group, which the U.S. government designated as an FTO. Similarly, in Nepal and Colombia, NGOs were prohibited from providing key assistance because the Maoists and FARC were still designated as FTOs even though there were elections in Nepal and a peace process in Colombia and both countries were in the process of demobilization, disarmament, and reintegration.
The FTO material support provisions also impact the successful implementation of other federal laws. The Global Fragility Act (GFA) is a game-changing law that puts conflict prevention and peacebuilding at the center of the U.S. government’s diplomacy, assistance, and security strategies in four priority countries and one region over 10 years. The GFA was born out of the challenges and shortcomings of U.S. foreign aid and diplomacy in conflict-affected and fragile States, but success will require a fundamental shift in how the U.S. government does business. Failure to provide long-term exemptions for the material support prohibition for peacebuilding and humanitarian NGOs will undermine GFA efforts to address the drivers of radicalization and promote community and country resilience to violent extremism.
The GFA Coalition, which is comprised of more than 100 NGOs and co-led by AfP and Mercy Corps, has argued that material support prohibitions would inhibit successful GFA implementation, particularly in Libya, Mozambique, and Coastal West Africa. Libya continues to grapple with the presence of the Islamic State and al-Qaeda affiliates, while the ISIS-M is destabilizing the north of Mozambique, and violent extremism continues to spread from the Sahel and Lake Chad Basin throughout Coastal West Africa. Clear protections for NGOs are essential to ensure their unimpeded assistance to GFA governments, civil society, and communities to reverse fragility trends and stem the influence and impacts of violent extremists.
The Need for an Expanded Legislative Solution to the Material Support Problem
In the wake of the Taliban takeover in Afghanistan, OFAC issued a series of general licenses for which NGOs had strongly advocated, signaling a significant pivot in the Biden administration’s approach to sanctions. In October 2021, the Treasury Department published a comprehensive review of U.S. sanctions policy, which found that sanctions remain effective as a coercive policy tool, but require careful calibration. These efforts, and substantial consultation between OFAC and civil society throughout 2022, set the stage for the historic Dec. 20 decision to expand broader protections.
While the OFAC licenses for NGOs engaged in legitimate activities are a positive step toward creating an enabling environment that allows NGOs to deliver vital services in conflict-affected and fragile States, they are far from a long-term guarantee to remove the legal risk to NGOs operating in these settings. They do, however, provide an opportunity for NGOs to deepen confidence among lawmakers that U.S.-funded organizations can implement these vital programs without resources ending up in the hands of bad actors. Congress should now pass a law that codifies and expands these protections with a comprehensive list of covered activities that would protect NGOs from civil and criminal liability and provide financial institutions the necessary cover to fund these activities. NGOs play a vital role in advancing U.S. assistance and policy, but only if they can operate freely and do their jobs of preventing and reducing violent conflict and extremism and building sustainable global peace.