Whilst the tenth anniversary of the war on terror has given rise to myriad reflections on the past decade of conflict, little attention has been paid to the impact that legislation to combat terrorism has had on humanitarian action across the globe. On the face of it, counter-terrorism laws and measures might not appear to have any connection with the humanitarian response to crises as diverse as that which is currently unfolding in Somalia, or the devastation wrought by the tsunami in Southeast Asia or suffering in Gaza. Yet, research by the Humanitarian Policy Group indicates otherwise. A newly released study shows that counter-terrorism laws have profound effects on the work of humanitarian organisations, eroding their ability to protect civilians and provide humanitarian assistance to those in need.
In efforts to combat terrorism states have criminalised a range of activities including material support to further the cause of terrorists. Whilst there are legitimate concerns related to acts which may unwittingly support radical groups, there is unease about the wide interpretation of what constitutes material support. For example, the US Supreme Court in Holder vs the Humanitarian Law Project found that even the provision of training in international humanitarian law fell under the rubric of material support despite the absence of any intent to aid and abet terrorists a criminal offence punishable by 15 years imprisonment. Counter-terrorism legislation in the US also removed the humanitarian exemption – ie the waiving of legislation in order to provide life-saving humanitarian assistance – since the potential diversion of aid could benefit terrorists.
The traditional legal framework for humanitarian action in conflict is international humanitarian law which balances the principle of military necessity with that of humanity and places limits on waging of war. International humanitarian law obliges parties to a conflict to permit both the provision of assistance to victims of war and humanitarians engagement with armed actors in order to do so. Counter-terrorism laws challenges these principles by distinguishing between good and bad victims of war, suggesting that helping victims caught up in areas controlled by a designated group is a criminal act if deemed to benefit the enemy. This redefines how humanitarian organisations can lawfully conduct their work since they operate in conflict areas where it has long been recognised that negotiating with all actors in a conflict whether considered terrorist or not is necessary to gain access to civilians affected by war yet this can now be criminalised.
Whilst the possibility of prosecution of humanitarian organisations exists, it is perhaps not this which has had the greatest effect on the humanitarian community. Rather, the greatest impact has been on funding as donors who may have previously accepted some diversion of aid as a consequence of meeting humanitarian needs in critical situations have since lowered their levels of tolerance in order to comply with counter-terrorism legislation.
This shifts the burden of compliance on to humanitarian groups to ensure that humanitarian assistance is not diverted to proscribed entities – tying them up in lengthy administrative procedures such as vetting staff and staff of in-country partners – and their partners partners. As a result, humanitarian organisations are becoming increasingly averse to engaging with non-state armed actors for fear they may fall foul of counter-terrorism laws. The situation in Al-Shabaab-controlled areas of Somalia is a case in point. This undermines humanitarian organisations neutrality and impartiality, exposing them to accusations of being aligned to governments security interests. Since neutrality and impartiality are the founding principles upon which the international humanitarian system is based – and upon which humanitarians rely in order to gain access to victims on all sides of todays most dangerous conflicts – these developments represent a regressive trend in the international humanitarian response. It is one which threatens fundamental principles of humanitarianism and international humanitarian law.
The picture is further complicated by divisions amongst donors, with some strictly applying counter-terrorism laws to their humanitarian funding and others taking a dont ask, dont tell approach, whereby they prefer not to officially know what engagement is taking place. Humanitarian organisations in turn have been reluctant to openly discuss how they are dealing with the legislation or engaging with targeted groups.
To counter this climate of silence and fear, greater transparency is required to facilitate a dialogue between donor governments and humanitarian organisations. This should be aimed at ensuring that governments and humanitarian organisations are able to meet their responsibilities in saving lives and alleviating human suffering whilst mitigating the danger of diversion of aid towards terrorist groups or activities. An open discussion on how to better strike this balance in the response to the current famine in Somalia offers an immediate opportunity for more constructive engagement.