Cover Feature
L A N I M I R C E H T IS M S I R O R R E T N O LAW G N I C N A N FI ? H G U O TOO T T By Stephen Dametto Detective Superintendent, AFP, founder of Australia’s Counter Terrorism Financing Investigations Unit and UNSW Researcher in law.
12 | Australian Security Magazine
he global community must maintain a tough legislative stance to contain the influence of terrorists who use their contributions to humanitarian activities to win over the hearts and minds of local communities. The Independent Reviewer of Terrorism Legislation in the UK, David Anderson QC, in his fourth report on terrorism financing legislation highlighted the negative impact that counter-terrorism financing legislation is having on overseas aid. He drew attention to the constraints placed by the counter-terrorism laws of various western countries on the activities of NGOs and contributors who seek to provide aid to territories which are under de facto control of proscribed terrorist groups or in which such groups are active on the ground. He highlighted a real risk of a ‘chilling effect’ on UK NGOs’ activities overseas at a time when their efforts are possibly more critical than ever before. Anderson is not the only one with these views and in fact a great number of States and humanitarian organisations have expressed similar concerns. Such laws are perceived as overly harsh and have the effect that people – concerned about doing the wrong thing - stop giving money to legitimate charities. Also, as the penalties attached to such laws are seen as excessive, they can lead to grievance and alienation in the community hindering cooperation with Police and intelligence agencies and potentially assist recruitment to the terrorist cause. The argument follows that tough laws effectively criminalise legitimate humanitarian action by neutral and
independent actors (like for example the International Committee of the Red Cross), potentially impeding their work and aggravating human suffering in war. Further, not all the activities of organisations regarded as terrorist organisations are related to the commission of terrorist activities. An example is when the Tamil Tigers controlled the northern part of Sri Lanka and, in reality, the only means of making humanitarian donations to people within this region was to funnel the money through them. The Tamil Tigers not only engaged in terrorist acts against the Sri Lankan government, but also operated a de facto government, including the provision of civilian services, within this region. The question is then - how do we balance and manage the seemingly competitive interests of the need for humanitarian aid and stop funds going to terrorist organisations? One solution often proposed is to have an exemption in the law for providing or collection of funds for a terrorist organisation where the purpose is to spend the funds on humanitarian activities. Similar laws exist in New Zealand and Australian law already has a statutory exemption for the offences of ‘association’ with proscribed organisations where “the association is only for the purpose of providing aid of a humanitarian nature”. The rationale is that an offence that punishes an organisation or a person providing funding to a ‘terrorist organisation’ - regardless of how the funds are used -