Have we Decommissioned the Donations?
Have we Decommissioned the Donations?- The Impact of Counter-Terrorism Policies on Non-Profit and Charitable Organisations within Ireland, Northern Ireland and the United Kingdom and the consequent impact on the Fundraising Practises of Northern Irelands Terrorist Regimes
by Joanne McInerney Solicitor & Notary Public, Unversity College Dublin May 2012
The wave of counter-terrorism that swept across the international community in the aftermath of the 9/11 attacks was both swift and strong. Its initiatives however have not produced any great evidence of mass terrorist infiltration into non-profit and charitable organisations although admittedly there have been a few marked exceptions. The truth is that counter-terrorism policies had been in place for decades prior to 9/11 and that these measures had been reviewed and revised every few years to respond to the ever-changing terrorist threat to civil society and society as a whole. The case of Ireland, Northern Ireland and the United Kingdom is no exception. These jurisdictions have grappled for decades to counter the fundraising activities of Northern Irelands terrorist regimes. Notably however, since the nationalist and loyalist ceasefires in 1996, their focus has now turned to combating a new enemy, the global jihadi movement and this has been reflected in their legislative policies and counter terrorist strategies.
Of Northern Irelands terrorist organisations, the Home Office of the UK has banned fourteen such groups. Since their 1996 ceasefires, those on the nationalist side, in the Provisional IRA who were unwilling to engage in the peace process have disseminated into numerous splinter groups such as the Real IRA and the Continuity IRA, while those on the loyalist side of the divide namely the UVF, UDA & UFF have seen such splinter groups as the Orange Volunteers and the Red Hand Defenders emerge. The missions and goals of Northern Irelands terrorists are however quite different from those of Al Qaeda. The terrorists within Northern Ireland seek to enforce their beliefs upon society through violence in a campaign for control over a specific area of land i.e. Northern Ireland. By contrast, the religious fundamentalist regime of Al Qaeda seeks to enforce its religious views globally upon society as a whole and seeks no specific area of land mass. Due to the political goals of Northern Irelands terrorists, they have traditionally partnered their causes with political parties to further their objectives. To this end the Provisional IRA (PIRA) employ Sinn Fein to put forward their missions and the UVF and UDA/UFF have utilised the Progressive Unionist Party (PUP) and the Ulster Democratic Party respectively for theirs.
Within Ireland, the year of 1969 saw the resurgence of the PIRA as it commenced its reign of terror over Northern Ireland and England. By 1979, the PIRA had developed a remote radio controlled bombing device of which they planted fourteen hundred of such in that year alone. Those terrorists on the loyalist side of the divide followed suit and caused similar devastation. Between the active years of the troubles in Northern Ireland (1969-1996), thousands of innocent citizens of Ireland, Northern Ireland and the United Kingdom had been killed or seriously injured by shootings, bombings or torture. In an attempt to control and combat these terrorist attacks, the governments of Ireland and the United Kingdom sought to assess where the financing for these illegal organisations was coming from with a view to starving the beast of its financial resources.
The fundraising practises of Northern Irelands terrorists have been extraordinarily sophisticated and entrepreneurial. There is evidence that in the past millions of dollars have flowed into the PIRAs hands from Irish American supporters through charitable organisations such as Noraid. Within Ireland itself, supporters of the nationalist cause have donated heavily to non-profit organisations such as Saoirse 32 and Friends of Sinn Fein (FOSF). Funds from these organisations have then been funnelled through to the PIRA and Sinn Fein to advance their goals. The police force in Ireland, An Garda Siochana have uncovered hundreds of de facto businesses being operated by the PIRA such as bars, restaurants, shops, guest houses and taxi companies. Such businesses have proved to be useful vehicles for these terrorists to launder through their dirty money obtained from robberies, extortion and kidnappings. It is believed that these practises still continue today and there is clear evidence of non-profit entities operating in Ireland such as Parnell Publications, a company limited by guarantee in the Companies Registration Office which is behind the publication of the nationalist newspaper An Phoblacht. The profits from these companies are most likely re-cycled back in the PIRA or Sinn Fein. The loyalist terrorists have not been as successful in their enterprises mainly due to divisions within their own organisations and lack of support from outside Northern Ireland and the UK. There is however, evidence that the UVF and UDA/UFF have been involved in extensive drug trafficking and fuel smuggling to bolster their coffers.
Legislation to counter terrorist activities is nothing new in Ireland and the United Kingdom. The Offenses Against the State Act, 1939 set up special courts in Ireland to deal with terrorists that threatened the stability of the state. Similarly, The Prevention of Violence Act, 1939 in the UK was enacted in response to the campaigns of the Old IRA and was further replaced by the Prevention of Terrorism Acts, 1974-1989 in response to the troubles in Northern Ireland. By 2000, the UK had turned its focus to dealing with the global jihadi threat of Al Qaeda. The Terrorism Act, 2000 and the Anti-Terrorism, Crime and Security Act, 2001 created a basis for bodies in the UK such as the Charities Commission to investigate charities where evidence could be found of terrorist abuse. The Regulation of Investigatory Powers Act, 2000 and the Serious Organisation Crime and Police Act, 2005 (SOCPA) allowed the Charity Commission to send covert human intelligence sources into suspect charities so they could monitor their activities. In the aftermath of the London (2005) and Madrid (2004) bombings by Al Qaeda cell networks, the Terrorism Act 2006 expanded the crimes of those associated with terrorists to preparatory acts, inciting, glorifying and providing assistance to terrorists. The European Council sought to enhance its national coordination of member states in the exchange of information under FATF 1373/2001 regarding terrorist financing and set out a framework for a Code of Conduct for Non-Profits to promote transparency and accountability best practises in its Commission Communication (2005). Opposition arose from a group of Islamic organisations in the UK who felt they were being targeted under the reforms and they set up a Humanitarian Forum to work with the Charity Commission to ensure that these counter terrorism measures applied to all charities.
Interestingly, in Ireland we saw the introduction of the Criminal Justice (Terrorist Offences) Act, 2005 which was introduced to give effect to a number of commitments that Ireland had made to the United Nations and FATF(Financial Action Task Force) under regulation 1373/2001 and its special recommendation VIII which had made it unacceptable for a signatory state to have ineffective laws overseeing non-profit activity in the context of combating terrorist financing. Attention was also moved towards suppressing the financing of terrorism and the Criminal Justice (Terrorist Offences), Act 2005 gave Irish Courts the power to confiscate funds and assets from terrorists. The Criminal Justice (Money Laundering and Terrorist Financing) Act, 2010 was enacted to give effect to EU Directives on Money Laundering and to ensure Irelands compliance with the FATFs Third Mutual Evaluation Report. As a result of the tightening in money laundering legislation it is no longer possible for these terrorist organisations to transfer funds between bank accounts as happened frequently in the 1980s e.g. in the case of Don Tidey a supermarket executive who was kidnapped in Dublin. A ransom of 2 million Irish pounds was wired into a Swiss Bank in Zurich which was then transferred to an account in Bank of Ireland, Navan, Co. Meath which was later traced to the PIRA. Evidence later emerged that much of these funds were to be used to fund the 1985 election campaign of Sinn Fein. The Electoral (Amendment) Act, 2001 introduced limits on the value of donations which could be accepted by political parties and individual politicians and it prohibits the acceptance of foreign donations. This has effectively cut off the direct route of donations from abroad and large donors to Irish political parties such as Sinn Fein.
Although the recent Irish Charities Act, 2009 has been introduced same has not yet been enacted. This anxiously anticipated act will have far reaching implications for Irish Charities given the levels of regulation and governance that will be required of charities registered in Ireland. The said act is similar to the Charities Act (Northern Ireland), 2008 and the Charities Act, 2006 of England and Wales where its provisions allow for intervention into charities only in a proportional and evidence based manner. Under S32 (2), provision is made for the Charities Regulatory Authority (CRA) to supply information to international bodies and S34 provides for the sharing of this information with foreign regulators so that they can work together to minimise and combat any terrorist abuse of charities cross border and order such sanctions on charities if necessary. Further to this under S65, the CRA can make an application to the High Court to freeze a charitys assets and can vest such assets in newly appointed trustees such as in the UK case of Viva Palestina formerly known as Lifeline for Gaza and also the North London Central Mosque (Finsbury Park Mosque 2001-2003).
With regard to the current fundraising activities of Northern Irelands terrorists organisations there appears to be a noticeable increase in the levels of tiger kidnappings, robberies and extortion of which it is suspected that many of Northern Irelands terrorists are behind. As terrorists various semi-legal activities have become restricted and closed off by the increased counter-terrorist legislation and strategies that the global community now as a whole seek to enforce this has led to their greater reliance on organised crime. It remains to be seen exactly and to what extent Northern Ireland terrorists still have funds available to them to carry out their atrocities. Attacks albeit sporadic still take place by splinter terrorist groups such as the RIRAs Omagh Bombing in August 1998 and the Northern Bank robbery in Belfast in 2004 in which 31.5 million pounds was stolen, of which it is widely believed that it was carried out by nationalist terrorists. It may be that todays terrorists within Northern Ireland will turn to trading in commodities similarly to Al Qaeda, such as gold and gem stones in order to store and transfer value for their ill fated deeds so as to remain under the radar.
The effect of counter-terrorism policies on non-profit and charitable organisations within Ireland, Northern Ireland and the United Kingdom has been an onerous one, with great administrative responsibilities being required of all such organisations. These strategies to increase accountability and transparency are however welcome in an environment that promotes positivity and guidance for charities and where levels of proportionality and fairness can be maintained between the charities regulators and the charities themselves. By doing so, the illegal activities of a relatively small number of sham charities can be weeded out of civil society in order that public confidence in the sector remains strong, allowing charities to continue to carry out their primary functions and purposes. By contrast, a heavier handed approach has been adopted in the US in their approach to counter-terrorism. Through their Patriot Act 2001, Anti-Terrorist Financing Voluntary Guidelines, 2002 as amended in 2005, 2006 and 2007 aggressive moves have been enforced wherein the US authorities have by-passed the awareness, oversight and supervision and co-operation of charities and moved directly to intervention and prosecution of charities often in cases where very little evidence exists to support such actions. This has created much abuse of human rights and discontent within the third sector of the US and has left large levels of suspicion and lack of trust lingering publically over the actions of every US non-profit and charitable organisation. If a household is divided against itself, that house will never stand. 
Books & Articles
Biersteker, Thomas J & Eckert, Sue E (editors), Countering the Financing of Terrorism, Routledge (2008)
Breen, Oonagh, Through the Looking Glass: European Perspectives On Nonprofit Vulnerability, Legitimacy and Regulation, 36 Brooklyn Journal of International Law 947, (2011)
Sidel, Mark, Counter terrorism and the Enabling Legal and Political Environment for Civil Society: A Comparative Analysis of War on Terror States, 10(3) International Journal of Not-for-Profit Law 7 (2008)
Horgan, John & Taylor, Max, Playing the ?Green Card? ?Financing the Provisional IRA: Part 1 & 2 Vol.11 No. 2 Terrorism and Political Violence, London (1999)
Coogan, Tim Pat, The IRA, Fontana/ Collins, 3rd Edition (1987)
Carter, Terrance S., CRAs new anti-terrorism checklist for charities-a step in the right direction (April 2009)
Parnell Publications Limited-Certificate of Incorporation, Memorandums & Articles of Association, www.cro.ie (Filed September 2003)
CTITF, Charities Project, http://www.un.org/en/terrorism/ctitf/proj_charities.shtml
OToole, Fintan, The Irish Times, Book of the Century, Gill & MacMillan (1999)
Byrne, Ciaran (ed), The Crime Files, Heist & Kidnaps, Independent Newspapers 10 March 2012
BBC Documentary, Bomb Squad Men : The Long Walk 5th April 2012
Reports & Strategies
National Consortium for the Study of Terrorism & Responses to Terrorism: Efficacy of Counter Terrorism Approaches Examining Northern Ireland (October 2006)
Charity Commission for England and Wales, Counter Terrorism Strategy ( July 2008)
FATF, Interpretive Best Practices Paper-Combating the Abuse of Nonprofit Organisation (October 2002)
FATF, Interpretive Note for Special Recommendation VIII-Nonprofit Organisations (2007)
CCEW, Inquiry Report on Viva Palestina (March 2010)
Charity and Security Network, How the Work of Charities can Counter Terror and How US Laws Get in the Way (2009)
OECD, Report on Abuse of Charities for Money Laundering and Tax Evasion (2008)
Sidel, Mark, Counter terrorism and the Enabling Legal and Political Environment for Civil Society: A Comparative Analysis of War on Terror States, 10(3) International Journal of Not-for-Profit Law 7 (2008) p. 37.
BBC Documentary, Bomb Squad Men : The Long Walk 5th April 2012
Biersteker, Thomas J & Eckert, Sue E (editors), Countering the Financing of Terrorism, Routledge (2008) p. 290.
Horgan, John & Taylor, Max, Playing the Green Card? Financing the Provisional IRA: Part 1 Vol.11 No. 2 Terrorism and Political Violence, London (1999) p. 22.
Horgan, John & Taylor, Max, Playing the Green Card? Financing the Provisional IRA: Part 1 Vol.11 No. 2 Terrorism and Political Violence, London (1999) p. 8
Parnell Publications Limited-Certificate of Incorporation, Memorandums & Articles of Association, www.cro.ie (Filed September 2003).
Breen, Oonagh, Through the Looking Glass: European Perspectives On Nonprofit Vulnerability, Legitimacy and Regulation, 36 Brooklyn Journal of International Law 947, (2011) p.958.
Breen, Oonagh, Through the Looking Glass: European Perspectives On Nonprofit Vulnerability, Legitimacy and Regulation, 36 Brooklyn Journal of International Law 947, (2011) p. 949.
Horgan, John & Taylor, Max, Playing the Green Card? Financing the Provisional IRA: Part 1 & 2 Vol.11 No. 2 Terrorism and Political Violence, London (1999) p.21.
Charity Commission for England and Wales, Counter Terrorism Strategy ( July 2008) p. 4.
CCEW, Inquiry Report on Viva Palestina (March 2010) p.17.
Sidel, Mark, Counter terrorism and the Enabling Legal and Political Environment for Civil Society: A Comparative Analysis of War on Terror States, 10(3) International Journal of Not-for-Profit Law 7 (2008) p. 30.
The New English Bible, New Testament, Mark 3:25 Oxford & Cambridge (1961) p. 62.