Counterterrorism clauses intended to ensure that donors’ funds are not used to benefit designated terrorist groups (DTGs) are becoming increasingly common in grant agreements. These clauses can, however, present significant challenges for humanitarian organisations. This section is designed to develop your understanding of these clauses. By the end of it, you should be able to identify potentially problematic wording related to counterterrorism that appears in grant agreements, know how to engage with donors to discuss counterterrorism clauses, and develop an internal process for decision making on whether and how to proceed with funding opportunities that pose risks related to counterterrorism measures.
Where are counterterrorism clauses found?
Counterterrorism clauses may be found in the following types of partnership agreements:
- Agreements between a donor, including states and multilateral agencies, and a humanitarian organisation, in which the former requires the latter to comply with a counterterrorism clause
- Humanitarian pooled fund agreements
- Agreements between humanitarian organisations, in which:
a. An organisation is the recipient of bilateral funds from a donor that requires it to include, or ‘flow down’, counterterrorism clauses in all sub-agreements linked to the funding of the project. In some cases, even if a bilateral agreement does not stipulate that the grantee must include a counterterrorism clause in sub-agreements, the organisation may be responsible if a sub-grantee puts the recipient in breach of its agreement with the donor.
b. An organisation has a policy of including counterterrorism clauses in its sub-agreements, usually reflected in its template for partnership agreements. Some UN agencies, for example, include such clauses in their templates.
- Commercial or service contracts between a donor government or multilateral institution and a humanitarian organisation
Donors may adopt a standard form of clause inserted into all contracts, or they may adapt their clauses, or include additional requirements, depending on the context, the programme, or the recipient of funds.
Counterterrorism clauses are sometimes inserted in sections of a grant agreement covering anti-bribery, anti-fraud and anti-corruption measures, but they can also appear elsewhere, including in the general conditions of an agreement. Donors do not always inform partners when they change the wording of counterterrorism clauses or when they introduce new clauses.
Signatories to grant agreements are obliged to comply with all clauses and to apply them in good faith. As such, it is vital that an organisation review each agreement thoroughly before signing to ensure it is fully aware of the requirements, regardless of whether it has signed previous agreements with the same donor or not. A thorough review helps to ensure that any problematic language is identified, allowing the organisation time to seek clarity, renegotiate wording if necessary and make a considered decision about whether to sign the agreement.
It should be noted that not all donor-imposed counterterrorism requirements appear in grant agreements. They can also arise in pre-contract negotiations. For example, USAID's Proposal Guidelines for Risk Mitigation in High Risk Environments require agencies to include risk assessments and mitigation strategies for diversion in environments it identifies as high risk ‘due to the presence of groups and individuals sanctioned by the U.S. Government’. Another example is USAID’s certifications and assurances, which must be signed and submitted with proposals. Documents like these also form part of agreements with donors, and should be considered in decision-making processes.
This table provides examples of current counterterrorism clauses used in agreements with donor governments, country-based pooled funds, NGO downstream partnerships and development-donor grants. They show that the content and scope of counterterrorism clauses can vary significantly. These clauses are provided as examples and should not be interpreted as examples of best practice, nor as being compatible with principled humanitarian action.
Furthermore, counterterrorism clauses may include vague or unclear language, making it difficult for organisations to understand what they are agreeing to and their liabilities in case of a breach. Counterterrorism clauses may also include requirements incompatible with a principled humanitarian approach, such as vetting beneficiaries. This can result in risk transfer, in which donors seek to mitigate their own risks by passing them on to grantees.
Find an extensive analysis of counterterrorism clauses from the Harvard Law School here.