It was reported in the media that a number of aid workers have recently been arrested in Afghanistan. Here is the article “18 Charity Workers Arrested In Afghanistan For Allegedly Preaching Christianity.”
18 Charity Workers Arrested In Afghanistan For Allegedly Preaching Christianity.
As the Taliban, which controls Afghanistan, is a listed terrorist organization there have been concerns that any Canadian charity operating in Afghanistan that, for example, pays salaries and some of the funds go to the Taliban that the Canadian charity could be charged with material support of terrorism. Canada did not have a general exemption for humanitarian actors in these circumstances. We have written about this topic before in our blog New bill introduced by Federal government would provide exemption scheme for those providing humanitarian relief in areas controlled by terrorists.
While as you may know, Bill C-41, An Act to amend the Criminal Code and to make consequential amendments to other Acts, received Royal Assent on June 20, 2023, and is now in force but it may not really be the answer for many charities considering assisting with the terrible humanitarian situation in Afghanistan.
Under this legislation, organizations can take advantage of a general exemption for humanitarian assistance activities. Specifically, the Canadian Criminal Code provisions “do not apply to a person who carries out any of the acts referred to in those subsections for the sole purpose of carrying out humanitarian assistance activities conducted under the auspices of impartial humanitarian organizations in accordance with international
law while using reasonable efforts to minimize any benefit to terrorist groups.” There is a lot to digest there and many activities carried out by charities are outside the scope of humanitarian assistance activities.
In addition, an organization could apply for authorization to provide other assistance (beyond humanitarian assistance) in geographic areas that are controlled by terrorist groups without risking being criminally liable in Canada for doing so.
While this legislation in theory, may encourage more Canadian charities to respond to critical needs in Afghanistan, an area controlled by a terrorist group, the problem is that prosecution by the Canadian government was never actually the number one risk faced by groups operating in Afghanistan. In fact, apparently, no Canadian aid workers have been prosecuted by Canada since 9/11.
Humanitarian workers in Afghanistan face many risks because of the Taliban control. As noted above, 18 members of The International Assistance Mission (IAM), a Swiss charity in Afghanistan, have been detained for allegedly preaching Christianity. They were transferred to an unknown location in Kabul, and are still in custody.
Canadian charities need to very carefully consider whether they have the skills, capacity, contacts, resources, knowledge etc to operate in Afghanistan. Charities have both a legal and ethical obligation to make appropriate decisions and unfortunately, with all the risks facing organizations and humanitarian workers in Afghanistan, there will be few Canadian charities who would be capable of dealing with the incredibly difficult situation.
For Canadian charities that wish to help the people of Afghanistan, it does not have to be a binary option of do nothing or do projects in Afghanistan. There are millions of Afghan refugees around the world, including in Canada, who need assistance.
CRA’s guidance on foreign activities has an interesting section on risk. Again, for many charities, the loss of registered charitable status is not the most important issue compared to aid workers being kidnapped or killed, but it is worth reading:
4.2 What if a charity’s activity puts people at risk?
If a charity’s activity exposes anyone to the risk of harm, it may affect the charity’s registration.
When the CRA looks at whether a charity meets the public benefit test, it considers whether the activities are likely to result in harm to the charity’s staff, its beneficiaries, or anyone else. To meet this test, the charity must be able to show a net public benefit, that is, that the potential benefit is greater than any harm that might result.
On a practical level, the CRA recognizes that many situations involve some element of risk. Sometimes it is not possible to predict all outcomes, especially in quickly changing international environments. However, organizations should be able to show an awareness of the risk an activity poses. If they intend to proceed with the activity, they should have a plan to keep risks at an acceptable level.
The facts of every situation are different, and it is not possible to provide a comprehensive guide on managing risk for all activities. To determine if a charity is doing enough to evaluate and manage the relative levels of benefit to risk, the CRA usually looks at these factors:
- the likelihood and nature of harm to anyone delivering the activity, receiving the benefit, or otherwise affected
- the urgency of the need for charitable assistance (for example, will the activity help desperate people in regions affected by a disaster, or in war zones?)
- the charity’s experience operating in situations with significant risk
- the charity’s proposed measures to keep risk at an acceptable level
Example: Evaluating and managing risk
A charity has a purpose to relieve poverty by providing humanitarian relief. It is launching a new activity in a developing country where civil war has broken out and displaced many citizens. They urgently need assistance, which the charity can provide.
The charity has been operating for several years, and its staff has experience working in areas affected by natural disasters. However, this is the first time the charity has considered working in a war zone.
The charity consults experts who are familiar with the security situation and who have experience in the region. The charity also arranges extra training for its staff on how to minimize the risk of harm to themselves and the beneficiaries, and it arranges for guides and interpreters it believes are trustworthy. The charity determines that if it carries on its activities within certain limits, the risk is acceptable and the charity can deliver significant relief to beneficiaries.
Although the charity is taking on risks, it has taken steps to minimize those risks so it can help those most in need.