With the recent release of two Canadian aid workers who were working for the Norwegian Refugee Council there has been discussion about whether Canadian charities or aid workers should work in places that are in the midst of conflict. Humanitarian workers help save many lives every year - it would be unfortunate if they stopped doing this important work because of terrorists, bandits, pirates and criminals. That being said, charities need to be aware of the risks, provide training to their employees and volunteers, plan for various contingencies, have necessary equipment and personnel in the field and in some cases, unfortunately it may be necessary for a charity to temporarily or permanently cease operations in a certain area.
In 2009 I wrote on the subject of security :
“To summarize, for those who do not want to read more than one paragraph - aid organizations who don’t not take security seriously probably should be getting out of the humanitarian aid area. Your employees will not want to work for you, funders will not want to fund you and you may be unnecessarily endangering the lives of national staff and beneficiaries.”
There is no indication that the NRC did anything wrong. There are certain risks associated with working in Kenya, especially when you are close to the Somali border.
The CRA discusses the issue of risk and foreign activities in its guidance “Canadian Registered Charities Carrying Out Activities Outside Canada” http://www.cra-arc.gc.ca/chrts-gvng/chrts/plcy/cgd/tsd-cnd-eng.html#N103B7
Here is an excerpt:
” 4.2 What if a charity’s activity puts people at risk?
If a charity or applicant’s activity exposes anyone to the risk of harm, it may affect its charitable status.
If an organization’s activity is likely to result in harm to the charity’s staff, the beneficiaries of its programs, or any other person, this harm is taken into consideration when assessing whether the public benefit test is met. To meet this test, a substantial net public benefit is required. If no substantial net public benefit is provided, the organization will fail the public benefit test. A charity could lose its registered status, and an applicant will not be registered as a charity.
On a practical level, the CRA recognizes that many situations and activities involve some element of risk. Sometimes it is not possible to predict all outcomes and hazards of certain activities, particularly in quickly changing international environments. However, a charity or applicant should be able to show an awareness of the level of risk an activity poses versus the benefit that can be provided. If the charity intends to proceed with the activity, the charity should have an appropriate plan to mitigate significant risks to an acceptable level.
The facts of every situation are different, and it is not possible to provide a comprehensive guide of how to manage risk for all activities. However, the CRA will usually look at the following types of factors to establish whether a charity is doing enough to evaluate and manage the level of benefit to risk:
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—an activity that helps desperate people in regions affected by a disaster, or in war zones);
the experience of the charity or applicant operating in situations with significant risk; and
the charity’s proposed measures to mitigate any significant risks.
A charity is registered to provide humanitarian relief, and is launching a new activity in a developing country where a civil war has broken out. Many citizens of that country have been displaced, and are in urgent need of assistance, which the charity can provide.
The charity has been operating for several years, and its staff has considerable experience working in areas where natural disasters have recently occurred. However, this is the first war zone in which the charity is considering operations.
The charity consults experts familiar with the security situation and with experience in the region. The charity also arranges more training for its staff on measures they can take to minimize the risks of harm to themselves and beneficiaries, and arranges for guides and interpreters that the charity believes are trustworthy. The charity determines that if it carries out its activities within certain parameters, the risk will be acceptable and the charity will be able to deliver significant relief to beneficiaries in need.
Although the charity is taking on considerable risks, it appears to be managing those risks as carefully as possible to provide help to those most in need. The charity will therefore likely be considered to meet the public benefit test.
4.3 What do charities need to know about Canada’s anti-terrorism legislation?
Charities have to remember their obligations under Canada’s anti-terrorism legislation. As with all individuals and organizations in Canada, charities are responsible for making sure that they do not operate in association with individuals or groups that are engaged in terrorist activities, or that support terrorist activities.
The CRA has produced a checklist to help Canadian charities identify vulnerabilities to terrorist abuse.
Under the Charities Registration (Security Information) Act and the Income Tax Act, a charity’s status may be revoked if it operates in such a way as to make its resources available, either directly or indirectly, to an entity that is a listed entity as defined in subsection 83.01(1) of the Criminal Code; or to any other entity (person, group, trust, partnership, or fund, or an unincorporated association or organization) that engages in terrorist activities or activities in support of them.
There are other prohibitions on funding or otherwise facilitating terrorism. For more information, see the Criminal Code, the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism, and the United Nations Al-Qaeda and Taliban Regulations, as well as the Charities Directorate’s Web page Charities in the International Context.”
Here are some resources that you may find helpful:
One of the speakers on security that I heard was John Schafer of the Security Coordination Unit of Interaction. John spoke in Toronto at the CLIP conference on February 22, 2010 You can view the free presentation Safety of Humanitarian Workers Outside Canada (John Schafer, Director of Security, InterAction, Washington, D.C.) at http://vimeo.com/21344282
Here are some other interesting resources on security.
NGO Security: Managing Risk in a Changing World (Interaction)
Safety, Security & Aid Workers (AidWorkers Network)
Centre for Safety and Development
Staying alive: safety and security guidelines for humanitarian volunteers in conflict areas
Humanitarian Distance Learning Centre
HUMANITARIAN ASSISTANCE AND THE PRIVATE SECURITY DEBATE: AN INTERNATIONAL HUMANITARIAN LAW PERSPECTIVE
protection: An ALNAP guide for humanitarian agencies
The Security Management Initiative (SMI)
Do you require legal advice with respect to Canadian or Ontario non-profits or charities?
Mark Blumberg is a partner at the law firm of Blumberg Segal LLP in Toronto and works almost exclusively in the areas of non-profit and charity law.