This presentation was presented in December 2012 at John Jay College of Criminal Justice in the course "Capstone in International Crime and Justice". The course is the culminating course of the MA program in International Crime and Justice program that seeks to train its students to tackle current issues in international criminal justice. The presentation is based upon the paper written by the presenter for the same course. Statement of policy problem: Current Counter-Terrorism (CT) policy has been very heavily focused on crime prevention techniques that deal with the formal sectors. However, the anti-money laundering/counter financing of terrorism (AML/CFT) regime has had a negative impact on the work of humanitarian organizations, charities and the larger NPO sector. These organizations provide another key piece to CT policy and prevention as well as critical services during crises. CT policy needs to be adjusted to prevent further abuses and marginalization of this key sector.

1. Redefining “Material Support”:
Rethinking Counter-Terrorism Policies that
Prevent Humanitarian Aid and Assistance
By Lydia Boyer
Presentation Prepared for ICJ 770
Fall 2012
Professor Natarajan
1

2. Outline
• Statement of the Policy Problem
• Overview of Terrorism and Counter-Terrorism
▫ Definition, UN Global Counter-Terrorism Strategy , Terrorism Financing
• Counter-Terrorism
▫ Crime Control and Crime Prevention
• Overview of International Counter-Terrorism Initiatives
▫ Security Council Resolutions, Sanction Regimes & Asset Freezing; FATF
and FSRB‟s
• Overview of “Material Support”
▫ FATF Special Recommendation VIII; Material Support Laws
• Policy Problems with Material Support
▫ Scope of the Problem
• Real World Examples
▫ Somalia, Gaza, US Policies,
• Improving Current Policies
• References*
2
*References will be given on the final slide. Images and other critical citations will be given on relevant slides, but most sources
duplicated information and as a result, all factual information in this document was corroborated by numerous sources. Credit will
be given to all material, authors and references used for all portions of the presentation.

3. Statement of the Problem
Current Counter-Terrorism (CT) policy has been very
heavily focused on crime prevention techniques that
deal with the formal sectors. However, the anti-money
laundering/counter financing of terrorism
(AML/CFT) regime has had a negative impact on the
work of humanitarian organizations, charities and the
larger NPO sector. These organizations provide
another key piece to CT policy and prevention as well
as critical services during crises. CT policy needs to be
adjusted to prevent further abuses and
marginalization of this key sector.
3

4. Overview of Terrorism: Definition
• No single definition
▫ “Any act of violence undertaken for the purpose of
altering a government‟s political policies or actions
that target those who do not actually have the personal
authority to alter governmental policy.” The actions
aim to “spread fear and anxiety (terror) through the
population so that it will, in turn, put pressure on its
leaders to change policies in a way favored by
terrorists.”
• Defined in 14 International Conventions – actions,
means and intent.
• Legal Best Practice defined by the UN Special
Rapporteur on Terrorism (A/HRC/16/51)
4
Sources: Callaway and Harrelson-Stephens (2006).

5. Overview of Terrorism: UN Global Counter-
Terrorism Strategy
Conditions Conducive Areas of Focus
Prolonged,
unresolved
conflicts
Dehumanization
of victims of
terrorism
Lack of Rule of
Law (RoL)
Human Rights
violations
Ethnic, national
or religious
discrimination
Political
exclusion
Socio-economic
marginalization
Lack of good
governance
Financing and
Material Support
• FATF and FSRB
recommendations
• Material Support
Legal and Criminal
Justice Systems
• Mutual Legal Assistance
(MLA)
Human Rights
Compliance
• Human Rights Law
• International
Humanitarian Law
Strengthen
International
Borders
Combat
Transnational
Organized Crime
(TOC) linked to
Terrorism
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6. Overview of Terrorism: Funding
• Terrorism is relatively inexpensive while it can
inflict major damage.
• Cutting off the financing is one of the most
important components to controlling terrorism.
6
Source: Von Knop
(2007).

7. Counter-Terrorism: Crime Prevention
Type Local (Micro) National (Meso) International (Macro)
National Action
Plans
National Legislation CTC/CTED, (CTITF)
Data Collection Local Police National police &
intelligence services
INTERPOL, UNICRI, UNODC,
FATF etc.
Clear definition of
behaviors/actions
National Legislation International Law, CTC/CTED,
Special Rapporteurs, FATF, etc.
Primary Prevention
Response
Local Police National police, intelligence
services, and armed forces
Aid (Sector) UNDP, Foreign States,
Foundations, Charities, NPO
Sector
Aid (Humanitarian) Local Actors National NGOs, OCHA Charities, NPO Sector,
Foreign States
Integration of
violence prevention
into social &
education policies
Local government National government CERD Initiatives, CTC/CTED,
UNDP, OHCHR etc.
Capacity Building Training initiatives for law
enforcement
CTC/CTED, (CTITF), (IROs),
Foreign States
Technical Assistance CTC/CTED, (CTITF), (IROs),
Foreign States
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8. Counter-Terrorism: Crime Prevention
• Aid is one of the leading factors that helps prevent
terrorism
• Humanitarian Assistance has:
▫ reduced violence in conflicts
▫ prevented the return to violence
• The NPO sector is critical to countering terrorism
for:
▫ Development
▫ Capacity Building
▫ Provision of Aid
▫ Long-Term
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9. Counter-Terrorism: Crime Control
Targeted Sanctions
(including Asset
Freezing)
• UNSC Initiated
• National FIU Initiated
Criminal Charges
for Terrorism and
Related Crimes
• Perpetrators, Planners,
etc.
Programs for:
• Rehabilitation
• Reintegration
• De-radicalization
Denial of:
• Asylum in Foreign
Countries
• Refugee Status
• Travel Visas
9

10. Overview of International Counter-
Terrorism Initiatives: Security Council
Security Council Resolution
1373 (2001) [Chapter VII]
Established the Counter Terrorism
Committee (CTC) under the UNSC and
required all states to implement both Crime
Prevention and Crime Control Measures
Resolution 1535 (2004) turned the Group of
Experts for the CTC into the Counter-
Terrorism Committee Executive Directorate
(CTED)
CTED: AML/CFT Practices
Ensures all states comply with the
recommendations of UNSCR 1373 (2001),
including the AML/CFT provisions,
including the creation of a domestic
Financial Investigation Unit (FIU).
The best practice has evolved that states
should follow the 40 FATF
Recommendations and 9 Special
Recommendations.
10

11. Overview of International Counter-Terrorism
Initiatives: Designation and Asset Freezing
Sanctions
Committees
• All entities on UN
Sanctions lists
must have their
assets frozen
• All Member
States must
comply
• Engaging with
listed DTO‟s is
considered as
Material Support
1373 Asset Freezing
• Entities listed by
national FIU‟s or
governments are
in addition to
those listed by the
UN
• The FIU ensures
that the assets of
entities on
Sanctions
committees are
also frozen
Designation
• Designation not
done by the UN is
done by national
governments
• In cases of
internal conflict,
the majority
involve a NSAG
designated as a
terrorist
organization by
the state
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12. Overview of International Law: The AML/CFT Regime
• Financial Action Task Force (FATF)
▫ International Law Enforcement Body
▫ Developed 40 Recommendations and 9 Special
Recommendations for AML/CFT (40+9)
• FATF Style Regional Bodies (FSRBs)
▫ Regional Bodies that perform the same function as
FATF but operate in different region of the world.
 APG, CFATF, EAG, ESAAMLG, GAFISUD, GIABA,
MENAFATF, MONEYVAL
• UN Security Council Resolution 1617
▫ Paragraph 7 “strongly urges” that all countries use the
FATF 40+9 recommendations for AML/CFT
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13. Overview of International Law:
FATF Special Recommendation VIII
13
Sources: FATF. (2012). International Standards on Combatting Money Laundering and the Financing of Terrorism & Proliferation (Revised).;
Hayes, B. (2012). Counter-terrorism, „policy laundering‟ and the FATF: legalizing surveillance, regulating civil society. Transnational
Institute/Statewatch.
While SRVIII appears to allow for judgement to distinguish between legitimate
and illegitimate entities, the FATF Interpretive Note for FATF does not.

14. AML/CFT as Situational Crime Prevention (SCP)
[Formal Financial Sector Transaction]
14
Individual or Organization
Seeking to Secure Funds to
commit a terrorist act.
Potentially guised as an NPO.
Financial
Investigation
Unit (FIU)
Funds Needed to Commit Terrorist Act – Located
outside of the “Likely Offenders” accounts.
Potentially Controlled by a Charity.
Sources: CTED Technical Guide, FATF Recommendations
Suspicious Transaction
Report (STR)

15. Overview of Material Support: Definition
• The exact definition varies across jurisdictions.
• The US definition developed in breadth and
jurisdiction.
15
1977 International
Emergency Economic
Powers Act:
The US President may
block goods to
designated entities
under the OFAC
sanctions regime, except
for Goods that “relieve
human suffering” cannot
be considered material
support.
1996 Antiterrorism
Act (ATA):
Bans “material support
or resources” without
clarification.
Includes: property,
services, monetary
instrument, training,
expert advice or
assistance, personnel or
transportation.
2001 USA PATRIOT
Act:
Expands material
support to include giving
goods to any designated
FTO regardless of the
type of aid, of if the
donor has knowledge
that it will be used for
terrorist ends. These
crimes are not limited to
US nationals on US soil.
2010 Decision of
Holder v. IHL:
Supreme Court case that
upheld that expert
advice or assistance was
considered material
support.
NPO in this case was
providing legal advice to
the PKK and LTTE on
taking a petition to the
United Nations.
Sources: HPG (2011), Hayes (2012), Drattel (2012)
Material support is the Monopolization of Foreign Policy:
“A ____ national cannot decide a stance (or lack thereof) on ____ conflict because
_____ government has taken ______ stance.”

16. Policy Problems with Material Support
AML/CFT Regime SCP to prevent
the financing of terrorism
The AML/CFT
Regime is overly
broad in its
capacity and
includes
provision of non-
financial support
The AML/CFT
Regime only
monitors formal
financial
transactions
The AML/CFT
regime does not
take into account
necessary actions
for humanitarian
assistance and
human rights
protections.
16

17. How the NPO Sector is Entrapped with SCP
17
NPO Sector providing
services, including
humanitarian relief
Any Government
with Material
Support Laws
Civilians in High Risk Area
Controlled by DTO
Sources: CTED Technical Guide, Humanitarian Policy Group Policy Brief 43 (2011)
Criminal Charges

18. Policy Problems with Material Support
• Reduction in overall donations
▫ Donor fears of funding terrorism
• Fewer number of humanitarian organizations going into high risk
areas (HPG Policy Brief)
• Muslim charities being targeted and hardest hit
▫ Up to 50% decline in contributions
• Legal cases being brought upon aid workers, lawyers, funders, and
supporters.
• Lawyers providing legal services to DTO affiliates can be charged
with material support –violates right to fair trial under the UDHR
and ICCPR
• In the US, religious affiliation does not protect an organization from
being charged.
• Regulations and Oversight jeopardize the neutrality of the NPO
sector
18

19. Real World Examples: Costs of
Providing Humanitarian Aid
• Getting access to vulnerable groups
▫ “Taxes”, registration fees and aid diversion
• Administrations vs. Field Workers
▫ Humanitarian “Don‟t Ask, Don‟t Tell” policy
• DTO‟s or Individuals banned from receiving any
aid
▫ Includes aid unrelated to terrorist activities
▫ Ex. A friend could not take them to see a movie
under the UNSC 1267/1989 Sanctions Regime
19

20. Real World Examples
• Somalia
▫ 2011 Famine – slow response to provide aid and relief
▫ Inability of many organizations to reach areas
controlled by Al-Shabaab because of material support
• Gaza
▫ Humanitarian Aid Organizations unable to provide
any assistance to anyone thought to be associated with
Hamas – often including medical care resulting from
incidents unrelated to the conflict.
▫ 2008 – Holy Land Foundation – guilty of material
support
• US Case Laws
▫ Holder v. IHL (PKK and LTTE)
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21. Improving Current Policies:
Recommendations
1. States need to undertake assessments to
determine the actual levels of abuse of the
NGO/NPO sector and of charities by DTO‟s.
2. An independent assessment should be undertaken
by UN OCHA or similar body to determine the
level of abuse of the NGO/NPO sector and of
charities by DTO‟s.
3. Humanitarian Aid organizations that work in high
risk areas (ex. Somalia, Gaza, Mali, Afghanistan,
Pakistan etc.) should be able to register with
OCHA and FATF (or relevant FSRB) as a
legitimate aid organizations working under
International Humanitarian Law.
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22. Improving Current Policies:
Recommendations
4. FATF and FSRB‟s should work with an NGO
partner(s) that can coordinate a collaboration
process among civil society actors, particularly
organizations that provide humanitarian aid,
in order to preserve neutrality of aid workers
in the field.
5. Humanitarian organizations that must pay or
provide some services to DTO‟s or NSAG‟s in
internal conflict to gain access to affected
populations should be immune from
prosecution under the AML/CFT regimes,
FATF SR VIII, or material support laws.
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23. Improving Current Policies:
Recommendations
6. Definitions of membership in a terrorist organization, and
participation in the planning or preparation need to exclude
the provision of (a) humanitarian assistance; (b) legal
advice (c) payments for access to vulnerable populations
for cases of NGO‟s or NPO‟s providing legitimate services.
Legal recourse and the right to an effective remedy must be
upheld.
7. An initiative, undertaken either by NGO or by CTITF
leadership (most likely the Human Rights Working Group)
should conduct an assessment of: (a) how many material
support cases through charities/NPO‟s/NGO‟s have directly
lead to acts of terrorism;(b) estimations of the decline in
charitable giving since 2001; and (c) a risk assessment of
the global NPO sector compared to the decline in aid to
determine if the policies are both necessary and
proportional.
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24. Prospects for the Future
Numerous NGOs currently
working on this issue – engaging
states, FATF/FSRB‟s, UN
entities and other relevant
bodies
FATF becoming more engaged
with NPOs around issues of SR
VIII
Counter-Terrorism Committee
Executive Directorate (CTED) is
overseeing the implementation
of UNSCR 1373 (2001) and 1624
(2005) to prevent abuse of
material support in the case of
NPO‟s.
CTITF Working Group on
Human Rights is currently
looking at options for how to
manage this problem.
A new draft law is currently
before the US Congress to make
some exemptions for
humanitarian actors
A new study sponsored by the
Norwegian government and
OCHA will be released this
Spring providing some key
recommendations
Many Think Tanks, Research
Centers/Institutes and
Foundations are currently
holding conferences and
workshops on this issue to
generate recommendations on
how to improve the system
Dedicated humanitarian
organizations continue to work
against the system to provide aid
despite the legal dangers
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25. References• Aziz, S. F. (2011). Counter religion or terrorism: selective enforcement of material support laws against Muslim charities. Institute for Social Policy and
Understanding.
• Bialostozky, N. (2011). Engaging for peace: what are the legal limits to work with terrorists? Center on Global Counterterrorism Cooperation. Online at:
www.globalct.org.
• Callaway , R. and Harrelson-Stephens, J. (2006). Towards a theory of terrorism: Human security as a determinant of terrorism. Studies in Conflict and
Terrorism, 29, 679-702.
• Counter Terrorism Committee Website. Online at: http://www.un.org/en/sc/ctc/index.html.
• Counter Terrorism Committee Executive Directorate (CTED). (2009). Technical Guide. Online at:
http://www.un.org/en/sc/ctc/docs/technical_guide_2009.pdf.
• Counter Terrorism Committee Executive Directorate Internal Meetings between August 22, 2012 and December 7, 2012.
• Duff, D. G. (2011). Charities and terrorist financing. University of Toronto Law Journal, 61, 73-117.
• Hammond, L. and Vaughan-Lee, H. (2012). Humanitarian space in Somalia: a scarce commodity. Humanitarian Policy Group and Oversees
Development Institute. Online at: www.odi.org.uk.
• FATF. (2012). International Standards on Combatting Money Laundering and the Financing of Terrorism and Proliferation: The FATF
Recommendations. Online at: http://www.fatf-
gafi.org/media/fatf/documents/recommendations/pdfs/FATF%20Recommendations%20%28approved%20February%202012%29%20reprint%20May
%202012%20web%20version.pdf.
• FATF. (2002). FATF Guidance Document. International Best Practices: Combatting the Abuse of Non-Profit Organizations. Online at: http://www.fatf-
gafi.org/media/fatf/documents/recommendations/11%20FATF%20SRIX%20BPP%20SRVIII%20October%202003%20-%20COVER%202012.pdf.
• Fowlers, A. and Kasturi, S. (2010). Embedding the War on Terror: state and civil society relations. Development and Change, 41(1), 1-27.
• Freeman, M. (2001). The sources of terrorist financing: theory and typology. Studies in Conflict and Terrorism, 34, 461-475.
• Gardner, K. L. (2007). Fighting terrorism the FATF way. Global Governance, 13, 325-345.
• Hayes, B. (2012). Counter-terrorism, „policy laundering‟ and the FATF: legalising surveillance, regulating civil society. Transnational
Institute/Statewatch.
• Jamal, Z. N. (2011). Charitable giving among Muslim Americans: Ten Years After 9/11. Institute for Social Policy and Understanding.
• McGoldrick, C. (2011). The future of humanitarian action: an ICRC perspective. International Review of the Red Cross, 93 (884), 965-991.
• Modirzadeh, N. K., Lewis, D. A. and Bruderlein, C. (2011). Humanitarian engagement under counter-terrorism: a conflict of norms and the emerging
policy landscape. International Review of the Red Cross, 93 (883), 623-647.
• Parker, T. (2012). Why Right is Might: How the Social Science on Radicalism suggests that International Human Rights Norms actually help frame
Effective Counterterrorism Policies. Perspectives on Terrorism, 6(3), 4-22.
• Romaniuk, P. and Chowdhury Fink, N. (2012). From input to impact: evaluating terrorism prevention programs. Center on Global Counter Terrorism
Cooperation.
• Von Knop, K. (2007). Patterns of terrorism financing: the art of puzzling. In Centre for Excellence of Defence Against Terrorism (Ed.), Suicide as a
Weapon (pp. 161-181), Ankara, Turkey.
• Young, J. K. and Findley, M. G. (2011). Can peace be purchased? A sectoral-level analysis of aid‟s influence on transnational terrorism. Public Choice,
149, 365-381.
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