US Counterterrorism Laws Block International Humanitarian Aid

The 2011 and 2012 famine in Somalia was arguably the worst food security crises in recent times - 750,000 people were at risk of death. Although warnings of a drought came as early as August 2010, the international community’s delayed action contributed to the tragic result: over 260,000 people died, nearly half children.

While the international community cannot be held solely responsible for the Somali famine, U.S. counterterrorism laws blocked humanitarian aid and peace-building organizations from action, going as far to render them inoperable. The result was a prolonged and exacerbated food security crisis.

Under the Patriot Act, current laws restrict “material support” to groups designated as terrorists, criminalizing engagement, even in situations of humanitarian need. In humanitarian crises, aid and peace-building organizations providing “material support,” which qualifies as “training,” “expert advice or assistance,” “service,” and “personnel,” must first await a license from the U.S. Treasury Department, an often lengthy bureaucratic process.

Kay Guinane, of external pageCharity and Security Networkcall_made, explains that the U.S. Agency for International Development (USAID) Famine Early Warning Systems Network anticipated the crisis in 2010. However, the U.S. government refused to grant aid licenses to areas controlled by Al-Shabaab, an armed insurgent group who control most of southern Somalia. By August 2011, the U.S. government issued limited licenses only for non-governmental organizations, qualifying them for USAID funding. Unfortunately, restrictions by counterterrorism laws blocked many other private resources of humanitarian aid, which failed to reach the hardest hit areas in Somalia.

“There were private resources which might have been available, which were substantial, but couldn’t be used,” says Guinane. “The result was tragic.”

The scale and severity of the Somalia famine reveals the consequence of anti-terrorism legislation in the face of humanitarian and peace-building need. More broadly, it reveals tension between U.S. foreign policy and the international community.

Introduced in November, the external pageHumanitarian Aid Facilitation Act (HAFA)call_made of 2013 is bipartisan legislation that aims to mitigate international consequences of U.S. counterterrorism laws. The legislation has garnered notable support from 66 international humanitarian aid and charity groups including American Red Cross, Mercy Corps, Oxfam America, and World Vision. HAFA tackles the effects of counterterrorism laws, specifically delayed and blocked humanitarian aid and peace-building efforts.

U.S. counterterrorism laws, though bolstered in response to the domestic 9/11 attacks, transcend borders with the extra-territorial jurisdiction claimed by the U.S. The consequences are far-reaching - any person or charity group engaging with designated terrorist groups anywhere in the world could be prosecuted and listed on an economic sanctions list.

Since humanitarian aid and peace-building efforts are international by nature, the scope of consequences stemming from the purported U.S. hegemony and unchecked jurisdiction should be questioned. David Newton of external pageConciliation Resourcescall_made, an international peace-building organization asks, “Why does one particular path of government get to decide when and where peace work is legal or legitimate?”

The Patriot Act creates bureaucratic hurdles and burdens the international community with threatening legal liability for engaging with groups listed as terrorist organizations. In addition, the subsequent U.S. Supreme Court decision on the Holder v. Humanitarian Law Project case in 2010 had a chilling effect throughout the NGO sector. In the case, plaintiffs wanted to provide human rights and peacemaking training to the Kurdistan Worker’s Party in Turkey and the Liberation Tigers of Tamil Eelam, both designated terrorist organizations. Reversing a prior ruling, the Supreme Court concluded the plaintiff’s intended assistance fit the definition of “material assistance,” which could further “legitimate” terrorist organizations.

“The counterterrorism laws completely disregard transactions necessary to complete humanitarian acts,” says Sophie Delaunay, executive director of Médicins Sans Frontiéres (MSF) in the U.S.

For NGOs providing medical assistance, like MSF, even if bureaucratic administrative hurdles are overcome, the “material support” clause severely incapacitates their ability to function. Delaunay explains that although MSF may be able to provide a drug deemed acceptable by the U.S. government, under counterterrorism constraints, this drug may not even be effectively administered and used in need-based communities.

“When we provide medical care, there is more than just a drug involved. There is a long string of transactions that need to be put in place for [humanitarian aid] to happen successfully,” says Delaunay.

While counterterrorism laws reveal problematic technical oversights, they also jeopardize safety of workers on the ground. One of core principles of humanitarian aid is neutrality and impartiality of aid, and current U.S. national security laws severely contradicts this.

“[NGOs] are operating with a foreign constraint by the U.S. government… and face a very difficult choice,” says Newton. “When [NGOs] comply with this legislation, obviously to the armed group involved, [they] are no longer operating under the basis of humanitarian need; [they] are operating under the basis of U.S. foreign policy.”

As the Somali famine reveals, NGOs are unable to maintain impartiality in action when the U.S. restricts to whom aid is directed. When armed groups are strategically excluded from humanitarian aid and engagement with peace-building groups, NGOs compromise their integrity and, consequently, their safety operating in these conflict zones.

The same chilling effect is reflected in peace-building efforts. Newton has observed that senior EU and UN officials expressed increasing reluctance to engage with armed groups. The result, he explains, is an increased number of abandoned peace initiatives with armed groups. While there is no way to accurately measure the impact, Newton laments the huge number of lost opportunities from disengagement.

“Not only is engaging necessary to end conflict, but actually the act of engagement has a moderating impact,” says Newton. “[Engagement] tends to strengthen moderates partly because it demonstrates to other group members there is potential progress in going down the routes of talks.”

HAFA not only opens up room for better-targeted and more efficient humanitarian aid, it also balances increased agency with more NGO responsibility. If passed, HAFA decriminalizes interactions with armed groups with a strict conditionality of NGOs’ due diligence of impartiality and neutrality. It makes room for NGO’s to improve relationships with communities, and in turn begins dialogue necessary for engaging in peace processes with armed groups.

“HAFA frees up agencies to be pure to the humanitarian basis and operate based on need,” says Newton.

While HAFA is only a first step in dealing with delicate humanitarian and security issues, it is an essential step. By freeing organizations of the crippling liability imposed by the U.S. government, international NGOs will be empowered to act with agency and in turn, effectiveness.

Sandi Halimuddin is an editorial assistant at World Policy Journal.

For additional reading on this topic please see:
Friend not Foe
he Growing Role of Regional Organizations in Humanitarian Action
Cooperation from Crisis? Regional Responses to Humanitarian Emergencies