International Law and Development - Essay Example

?An Evaluation of the Role of Public International Law in Achieving Development Objectives: Assessing the policy shifts in development activities andin international aid since the September 11 attacks. Introduction As the title suggests, I will be evaluating the role of Public International Law in achieving Development Objectives, assessing the policy shifts in development activities and in international aid since the September 11 attacks. This paper will focus first and foremost on the key issues in this area of international law and development, and the policies of the overseas development organisations (ODA) such as the DFiD in the UK and US Aid in the USA adopted since the events of 9/11. The second part of the paper will discuss the impact of these policy shifts on development assistance. Finally, I will attempt a discussion on how the policies and other counter-terrorism measures intersect with the purpose of the aid. Significance of the study This study primarily aims to evaluating the role of Public International Law in achieving Development Objectives, assessing the policy shifts in development activities and in international aid since the September 11 attacks. The September 11 attacks have made donor countries more wary about the development assistance programs they would direct to developing countries, especially to countries with known terrorist ties. As a result, policy shifts in development assistance has been seen in international laws. Establishing international development assistance in the current age has become complicated because of the risks involved. A report of the ODI describes how ‘counter terrorism laws and other measures are having significant impact on humanitarian actions as such that it criminalizes the transfers of resources to terrorist groups or individuals, irrespective of the humanitarian character of such actions or the absence of any intention to support terrorist acts’1. As a result, humanitarian and other development organizations have been cautious about extending any form of aid to groups and individuals because of the legal ramifications of their assistance. However, all forms of aid have been placed at risk, even those which may genuinely be meant for development assistance and activities for developing countries. Compliance with counter terrorism measures has affected the ability of humanitarian organisations to provide assistance based on the principles of neutrality and impartiality. Law and development is a topic that concerns the potential of law as an instrument of social change in developing countries. The key objective of this assignment is to evaluate the impact of public international law in an era which has been affected by changes in policies due to anti-terrorism laws and their affects on development assistance in developing countries. The key problem in this respect is that counter terrorism legislation and other policies have directly affected levels of development assistance, as many donors are now afraid of the consequences of indirectly funding designated entities or individuals. What is Development Aid Assistance? Development assistance can be separated into two sectors – private and public. Private aid is concerned with financial aid given by governments and other agencies to support the economic, environmental, social and political development of developing countries. It is distinguished from humanitarian aid (public aid) which focuses on long-term poverty alleviation. This assistance ensures that the country can develop instead of sliding back into conflict. Some examples include: the reconstruction of property and infrastructure, the return of displaced security, governance, transport of food and supplies, and the rebuilding of the economy. The aim of development assistance is to help developing countries function on their own and ensure that they can function independently after aid is extended to them. Public aid deals with humanitarian aid and its general aim is to help people in third world countries, particularly the most vulnerable countries, assisting them during emergencies and after natural disasters, providing the necessary assistance and relief to people affected by longer-lasting crisis. Public aid aims to assist in financing the transport of aid, ensuring that it is accessible to those for whom it is intended; it is also meant to cope with the consequences of population movement caused by disasters. In summary, it deals with issues concerning education, welfare, health, clean water, sanitation, food and shelter. My research will focus on public aid, as this is concerned with the general public and with the innocent and vulnerable people who are in need the most. Why is Development Assistance Important? In 1970, the United Nations General Assembly (UNGA) recognised that providing aid is one of their major commitments; as such, a target for meeting this commitment was codified by passing resolution 2626. This resolution declared that “the 0.7% pledge is the commitment of the world’s developed countries to donate 0.7% of their gross national product (GNP) to the economic development of poor countries”. In the meeting of the UN General Assembly it was said, “in recognition of the special importance of the role which can be fulfilled only by official development assistance, a major part of financial resource transfers to the developing countries should be provided in the form of official development assistance. The UN Millennium Development Goal also emphasizes that each economically advanced country will progressively increase its official development assistance to the developing countries and will exert its best efforts to reach a minimum net amount of 0.7% of its gross national product at market prices by the middle of the decade”.2 In reflecting on the impact of development assistance, I believe that aid and development assistance can alleviate poverty in developing countries, making them less vulnerable to the dangers of poverty, including political unrest, terrorism, and civil strife. Impact of counter-terrorism measures “Following President Bush’s declaration of a ‘war on terror’ in 2001, governments around the world introduced a range of counter-terrorist legislation, policies and practices”3 A recent report from the UK based Overseas Development Institute (ODI) claims that ‘counter-terrorism measures implemented during the last decade are having a chilling effect on humanitarian efforts’4, they argue that such measures are upsetting the timeliness and efficiency of humanitarian aid. They also declare that these measures promote administrative red-tape which endangers the lives of aid workers, fostering an atmosphere of fear and confusion which also prevent relief groups from operating in global hot spots’5. Moreover, these measures also seem to undermine the independence of humanitarian aid groups. Preventing resources from being handed down to corrupt or terrorists organisations is an important objective, however the counter-terrorist measures which are being implemented ‘have led some relief aid organisations to scale down their presence’ in areas where such terrorist groups operate, leaving millions of people without basic necessities. One of the hardly affected areas in recent years include the aid agencies operating in Somalia where famine has gripped most of the South, and with some areas under the control of the Al’ Qaeda-linked Al Shabaab. Understandably, many of them are nervous about operating in Al Shabaab areas and the risk of falling foul of laws criminalizing material support to terrorist organisations. The US, in its counter terrorism measures, takes the approach where any contact with a listed terrorist group is prohibited regardless of intent. Therefore, distributing food to civilians living in regions controlled by such groups has become nearly impossible. The report also declares that ‘U.S legislation has had the most impact on humanitarian operations.’ The sanctions regime implemented by the Department of Treasury’s Office of Foreign Assets (OFAC) and the Material Support Statute, “while there has been only a small number of prosecutions of humanitarian actors for ‘material support’ offences”, the report said, “the threat of criminal sanction will continue to undermine humanitarian operations, at least until there is a greater clarity on the interpretation and application of the laws to humanitarian operations”6. In places like Somalia, where armed conflict and famine left millions of people in need of life saving support, the Humanitarian Policy Group (HPG) report found that Counter terrorism measures were responsible for a 50% drop in humanitarian funding between 2008 and 2011. For the aid groups that remained in Somalia, many report ‘the pre-vetting checks and other risk management procedures’ required by OFAC regulations significantly delayed their response time and ‘increase[d] the risk to aid –workers’, by making them appear aligned with one side in the conflict7. Such measures like “pre-vetting” of partners and beneficiaries is not exclusive to Somalia, the United States Agency for International Development (USAID) wants to implement similar vetting procedures, called the partner vetting system (pvs), for all of its grantees, PVS has been widely criticized by the US NGO sector because it is costly, ineffective, and undermines the relations between humanitarian organisations and local communities. The US AID has been founded in order to assist citizens struggling for a better life, recovering from disasters or seeking to live in a democratic set-up. They aim to issue economic, development, as well as humanitarian assistance in countries like Africa, some parts of Asia, Latin American, and the Caribbean8. USAID PVS requirements envisage collecting and reporting personal information about partner and contractor staff to the US government, which is seen as invasive and accusatory by locals. These measures undermine the neutrality of humanitarian organisations because the U.S funded organisations that comply with these vetting requirements “are seen by partners on the ground as endorsing the political view of the government”9. As possible solutions, the paper suggests the need for a more transparent dialogue between humanitarian organisations and key decision makers with donor governments. Humanitarian Organisations also have to share more information with each other and be transparent about how they would respond to legislation. Moreover, the goals of counter terrorism legislation should be reframed through dialogue between governments and humanitarian law, thereby re-affirming the humanitarian principles that are so central to the provisions of humanitarian assistance. Legislation Terrorism Laws have always been present but have significantly tightened since the events of 9/11. It has brought on a more globalized proactive counter terrorism policies which have undoubtedly led to the increased use of internationally agreed counter terrorism measures, and an effort to strengthen laws or introduce new legislation to address new aspects of the threat. In late 2001 a number of anti-terrorist legislations were passed by the UN and its member states. These laws include the United Nations Security Council Resolution (UNSCR) 1373, the US Patriot Act, the UK Anti-Terrorism, Crime and Security Bill, and the EU Council Common Position 931 on Combating Terrorism. These laws effectively have sought “to disrupt the activities of terrorist groups by criminalising their members, cutting off their access to funds and undermining their support”10, through various measures such as assets freeze and travel bans. The EU established an autonomous list in application of UNSCR 1373 requiring its member-states to prevent “the public” from offering “any form of support, active or passive” to “persons, groups, and entities involved in terrorist acts” (EU Common Position 931). The most prominent national lists include UK’s ‘List of Proscribed Terrorist Organizations’ and USA ‘Foreign Terrorist Organisation’ FTO and ‘Terrorist Exclusion List’ TEL. Within the UN Security Council, the events of 9/11 also led to new levels of consensus on dealing with terrorism. On 28th September 2001 the UNSC passed Resolution 1373. Whilst terrorism was not defined in the resolution, the UN member states were ordered to refrain from providing any form of support to terrorist groups and individuals; and they were obliged to implement measures to suppress terrorists’ acts within their jurisdiction. These measures include enhanced: financial and border controls and international judicial cooperation; and they also include bans on the granting of asylum to terrorists. Moreover, these measures are also meant to ensure that ‘any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice’. Member States are obliged to give effect to the Resolution at the national level through national law and other measures. The EU Council Framework Decision on combating terrorism, which is binding on all EU member states, defines participation in the activities of a terrorist group to include ‘supplying information or material resources or…funding its activities in any way’. Similarly, laws were passed in other jurisdictions. In Australia, the offence of terrorism was passed in 2002 in response to both 9/11 and Bali Bombings of that year. In the U.S the Material Support Statute was adopted in 1996 and amended twice since 9/11, and the legislation was in intended to provide a framework to crack down on material support for organisations and individuals identified by the State Department as terrorists or as threats to US National Security and Foreign Policy. It is worth looking at the US law in this area, as this is by far the law with the greatest potential adverse impact on humanitarian organisations. The most relevant legislation is the material Support Statute. Material support or resources include the provision of any property, tangible or intangible, or of any service including currency, financial services, training, expert advice, or assistance. Whilst humanitarian action intends to save lives and relieve human suffering and not support terrorism, the manner in which support to terrorism has been interpreted directly impacts upon the work of humanitarian organisations. Other Policies The World Development Movement in its press release has criticized the governments’ aid spending plans. It accused the government of fighting terrorism instead of poverty with the aid budget. Moreover, it recorded that 0.7% target of the governments aid, which was initially agreed by the UN member States, can only be reached through double counting of aid and climate money. The Department for International Development (DfiD) implemented changes on how aid is spent. The DfID is a UK government agency managed by a Cabinet Minister. Its goal has been to support sustainable development and eradicate world poverty11. The department expressed that although aid will be a priority for ‘fragile states,’ the UK will ensure that it would get maximum value for money and that UK’s national interests will be taken into account. This has raised frustration among antipoverty campaigners who criticized the UK government’s plans, arguing that aid is misused in that it seeks to tackle its policies and security risks by ‘fighting terrorism not poverty’12. Operational Impact of Counter-terrorism Legislation It is safe to conclude that certain counter-terrorism laws have had an immediate impact on Islamic charities particularly after the 9/11 attacks, and these laws have affected the levels of funding for these charities, burdening them with administrative delays and the freezing of bank transactions. Moreover, since 2008 the impacts on humanitarian levels have become more general. This may be closely related to the decision in the Holy Land Foundation Case, especially with the fact that donors, in response to pressures from domestic constituencies, have focused more closely on the issue and allegations of high levels of aid diversion to designated terrorist groups. These issues will be further examined in the case study of the Holy Land Foundation for Relief and Development v US. Holy Land Foundation for Relief and Development v US This research recognises that actors working in relief efforts in foreign countries will have to comply with both domestic and foreign laws. In recent years, measures adapted to counter-terrorism have posed serious challenges to Human Rights and the rule of law. According to the recent case Holy Land Foundation for Relief and Development v U.S, the largest Islamic charity based in U.S, Texas was found guilty of supporting Hamas through its contributions. As a result, the charity was dissolved and directors received 65 years imprisonment. The assistant attorney general for national security in his speech said “these sentences should serve as a strong warning to anyone who knowingly provides financial support to terrorists under the guise of humanitarian relief”13. The defendants were charged with conspiracy in providing material support to a designated foreign terrorist organisation, through their following actions: providing funds, good, and services to a specially designated terrorist, and conspiracy to commit money laundering. The case is currently under appeal. Hamas is an international terrorist organisation with the stated objective of destroying the State of Israel and replacing it with an Islamic state comprised of what is now Israel, the West Bank and Gaza Strip14. Hamas is organised into distinct wings, or bureaus, that perform different functions but operate as a seamless whole. It includes a military wing, responsible for carrying out suicide bombings and other terrorist attacks; a social wing, which operates much like a social welfare agency; and a political wing, which sits above the military and social wings and is responsible for setting policies and guidelines regarding Hamas’ activities15. The Hamas charter passed in 1988 identified the group as a Muslim Brotherhood in Palestine with members who fear God and who declare Jihad on their enemies. They view the Jews and Israel as their major enemy. Currently, the Hamas does not use this charter actively anymore, but they have not changed its provisions. Currently, the Hamas is considered a terrorist organization by most states; other countries like Switzerland and Russia do not regard it as such. In general, its status as the controlling party for the Gaza strip is not recognized by the UN. The Holy Land Foundation was held to be an integral part of the Hamas social infrastructure; and it operated to support the Hamas agenda. On January 1995 the Department of Treasury, office of Foreign Assets Control designated Hamas as a specially Designated Terrorist Organization. This designation made it illegal for any United States citizen or entity to engage in any unlicensed transactions or dealings involving the property or interests of Hamas. However, HLF delivered hundreds of thousands of dollars into the West Bank and Gaza to construct schools, medical clinics, libraries and other community-based facilities. The focal point of this issue is the designated terrorist group Hamas, and the impact that the antiterrorist laws have had. Whose Aid is it anyway? Whose aid is it anyway, was an interesting report published by the International Agency, which reported that billions of pounds of aid which could have helped a lot of poor people were spent on unsustainable, expensive and sometimes dangerous aid projects. This was apparent with the donor government, including the U.S, Canada and France having ignored international agreements and using aid to support their own short term foreign policy and security objectives. The Department for International Development (DfID) in its press release sought to provide aid to so called ‘fragile’ states, or states that were corrupt and or had failed governments. Moreover, the UK intended to support these countries in order to tackle terrorism. For example, prior to the killing of Osama Bin Laden, U.S was the main donor in providing military aid, primarily for Pakistan to deploy more than 10,000 soldiers along the Afghan border to combat terrorism, and to train their troops in fighting terror. U.S has since threatened Pakistan, warning that it will cut off aid if it would not cut its ties with terrorist groups. US also gave Pakistan the choice between backing the country that finances much of its operations and continuing to provide secret support for the Taliban. In a more recent report, DfID has further announced that the UK will provide aid where it receives maximum value for its money – in other words, where it will be in its best interest to give aid. As the recent trend suggests, donors are giving aid where they can assist in foreign policy and objectives. Findings Research suggests that counter terrorism laws and measures have had an impact in four key areas: 1. Funding Levels Counter terrorism legislation has directly affected levels of humanitarian funding. Islamic charities/organisations have been hit particularly hard, although the impact is not restricted to Islamic organisations. However, they have come under greater scrutiny than others, with many of their private donors becoming afraid of the possible consequences of indirectly funding designated groups or individuals. Furthermore, where aid agencies are unable to provide firm assurances against the risk of misappropriation, recipient organizations have experienced more problems. In Central-Somalia, largely an area controlled by Al Shabaab, there has been a decrease in aid funds from 2008-2010 as it was feared that Al Shabaab was benefiting from the influx of humanitarian assistance which led the government to suspend $50 million in humanitarian aid for Somalia. 2. Administration Burden The administrative burden introduced by counter-terrorism legislation has affected the timeliness and efficiency of humanitarian aid. For example, delays in transfer of funds have become the norm for most Islamic humanitarian organisations. Bank transfers are frequently stopped without any explanations, and organisations have to wait up to three months while investigations may be carried out; moreover, these organizations are often asked to bear the costs of investigations even if they are cleared of any wrong doing. Organisations have to implement measures to minimize the diversion of aid. Substantial staff time and financial resources are required (check lists for both donors and partners) to manage aid. Information also needs to be collected and monitored. As a result of these difficult and timely measures, some organisations have scaled down their presence in areas controlled by terrorist groups. 3. Relations with local communities The vetting of partners and beneficiaries is undermining relations between humanitarian organisations and local communities. For example, US Aid partner vetting requirements involve collecting and reporting information about partner and contractor staff to the governments, this requirement is seen as invasive and accusatory by the locals; thereby undermining US Aid’s relationship with the locals. 4. Transparency The lack of clarity on the implications of the legislation and donor policy has led to decreased transparency and accountability in the way humanitarians operate in contexts where they have to interact with designated groups and individuals. Complying with measures implemented by donor governments has affected the ability of humanitarian organisations to provide assistance according to the principles of neutrality and impartiality. Whilst preventing terrorist acts is an important objective, the steps many states are taking to achieve this are having an unnecessary adverse impact on efforts to provide lifesaving assistance to those caught up in conflict. The potential and actual adverse impact includes the threat of criminal sanctions against humanitarian actors considered to have provided support to terrorist groups in contravention of the various domestic, regional and international laws. The fear of prosecution will continue to undermine humanitarian operations, at least until there is greater clarity on the interpretation and application of these laws to humanitarian operations. In addition, the range of regulatory measures that have been introduced are raising operating costs, slowing down administrative functions, curtailing funding, undermining partnerships, reducing access, and altering the quality and coordination of assistance. As Humanitarian Policy Groups (HPG) research demonstrates, dialogue on this issue between humanitarian organisations and donor governments, including Somalia has been neither constructive nor transparent. Crucially, a more transparent dialogue is essential to break through the climate of confusion and fear amongst all stakeholders. Conclusion A disproportionate amount of international aid is pouring into Iraq and Afghanistan for self-interested reasons that have more to do with the fight on terrorism than poverty reduction, says a new report.16 Aid has been spent on security rather than poverty- for example the diversion of aid to Afghanistan and Iraq in order to fight poverty Due to the counter terrorism legislation implementation- NGO’s and Charities are decreasing because their actions have been criminalized. The effects of these aid cuts have affected the innocent people living in poverty who are in dire need of aid for their basic needs. Is it their fault that they were born in countries where terrorists or terrorists groups operate? To have a system to tackle this aid going into the hands of such groups is desirable, on other hand cutting aid completely and ignoring the poor is not an answer. Counter-terrorism laws have made it difficult for the UN, the US, the UK, and other development assistance organisations to implement humanitarian aid to vulnerable countries. As a result, these countries have become even more susceptible to the risks associated with terrorism and related activities. The policy shifts for various countries and international aid organizations have proved to be detrimental for the groups who have traditionally been recipients of international aid. At the same time, these shifts have also effectively reduced the risk of aid being directed towards terrorist organisations. In seeking to achieve this goal however, the possible benefits of international aid have been put at risk. The need to strike a balance in international aid and counterterrorist legislation must therefore be considered by international law bodies and the UN in order to achieve better development goals while still controlling terrorist groups. Read More