Neutrality undermined: the impact of counter-terrorism legislation on humanitarian action in Somalia

Counter-terrorism laws and other measures are having a significant impact on humanitarian action in Somalia. Research by the Humanitarian Policy Group (HPG) suggests that they have increased operating costs, slowed down administrative functions and operational response, curtailed funding and undermined humanitarian partnerships. They have also prevented access and altered the quality and coordination of assistance, making it more difficult for humanitarian actors to operate in accordance with the principles of neutrality and impartiality.

Counter-terrorism legislation

The development of counter-terrorism legislation and measures relating to Somalia must be seen in the context of global counter-terrorism efforts. Although there is no legal definition of terrorism, in practice the term has been used to describe politically motivated violence intended to cause death or injury to civilians, with the aim of intimidating a wider audience. What constitutes terrorism is however highly subjective: states tend to characterise violence perpetrated against them by nonstate armed groups as ‘terrorist’, whereas similar acts perpetrated by groups politically or ideologically closer to them may be considered part of a ‘liberation struggle’. Today, there is a complex array of domestic, regional and international legislation and policy addressing specific acts of terrorism, or targeted at specific ‘designated’ groups or individuals.

Whilst the objectives of counter-terrorism legislation and international humanitarian law (IHL) coincide over the need to protect civilians from attack, in some instances this body of law is in contradiction with the provisions of IHL. In particular, counter-terrorism legislation considers one party to a conflict as criminal per se, whereas IHL regulates the behaviour of all parties to the conflict in equal fashion. While IHL balances the principle of military necessity with that of humanity, and places limits on the waging of war, counter-terrorism laws threaten to erode these limits, and make it more difficult for people affected by conflict to receive humanitarian protection and assistance. Although anti-terrorism laws do not prohibit discussions with designated terrorists, and IHL clearly provides for humanitarian actors to offer their services to all conflict parties, some humanitarian actors have been instructed not to engage with certain armed groups, even though this limits their ability to reach populations under their control.

Undermining neutrality: the operational impact of counter-terrorism legislation in Somalia

The sanctions regime in Somalia dates back to 1992, when an arms embargo was imposed under UN Security Council Resolution 733. Resolution 1844 in 2008 added targeted sanctions against listed individuals and entities. UN member states have implemented the resolution through a range of measures, including criminalising the provision of resources and material support to those named on the list, which currently comprises Al-Shabaab and ten individuals. See ‘List of Individuals and Entities Subject to the Measures Imposed by Paragraphs 1, 3, and 7 of Security Council  Resolution 1844 (2008)’, http://www.un.org/sc/committees/751/pdf/1844_cons_list.pdf.  Resolution 1916, passed in March 2010, introduces a humanitarian exemption to the sanctions, but this applies only to ‘the United Nations, its specialised agencies or programmes, humanitarian organisations having observer status with the United Nations General Assembly that provide humanitarian assistance, or their implementing partners’. This excludes independent organisations like Médecins Sans Frontières (MSF), which are neither part of the UN nor an implementing partner. It also leaves diaspora organisations vulnerable. L. Hammond and H. Vaughan-Lee, Humanitarian Space in Somalia: A Scarce Commodity, HPG Working Paper (London: ODI, forthcoming 2012).  In addition, the exemption is not mandatory. In the US, for example, whilst the substance of Resolutions 1844 and 1916 has been implemented, the humanitarian exemption has not been incorporated into domestic law. Kate Mackintosh, ‘Holder v. Humanitarian Law Project: Implications for Humanitarian Action – A View from Médecins Sans Frontières’, Suffolk Transnational Law Review, Volume 34, Symposium 2011, Number 3, 2010.  While the humanitarian exemption in Resolution 1916 could be seen as an example of how to mitigate the humanitarian impacts of sanctions and counter-terror legislation, there are fears that it sets a precedent in which humanitarian action is exempted only in particular circumstances, rather than this being the norm in situations of humanitarian need.

The sanctions regime has compounded the difficulties facing humanitarian organisations operating in South Central Somalia, a highly volatile area mostly controlled by Al-Shabaab. Funding has declined by half between 2008 and 2011, mainly as a result of a drop in US contributions, and humanitarian organisations are being asked to introduce extensive risk mitigation measures. These include pre-vetting finance checks, tracking systems, real-time monitoring, verification of partners’ shareholders, a bond system (requiring a deposit of 30% of the value of goods transported) and a contractual assumption of 100% financial liability for shipments lost or stolen by contractors. Humanitarian organisations that fall within the terms of the exemption in Resolution 1916 are required to inform the UN Humanitarian Aid Coordinator for Somalia of any instances of diversion of assistance, as well as on the implementation of the exemption. This information is included in reports to the UN Security Council.

In 2009, fears that Al-Shabaab was benefiting from the influx of humanitarian assistance, particularly food aid, led the US Office of Foreign Assets Control (OFAC) to suspend over $50 million in humanitarian aid for Somalia. M. Bradbury, State-building, Counterterrorism, and Licensing Humanitarianism in Somalia, Feinstein International Center Briefing Paper, September 2010. These concerns were compounded by a report by the UN Monitoring Group on Somalia in March 2010, which alleged that three contractors were diverting over half of all food aid in Somalia – allegations that were contested by the World Food Programme (WFP). While risks of aid diversion certainly need to be addressed, the requirements on agencies in Somalia far exceed what is considered acceptable in other contexts. The costs of these measures are high, both financially and to the flexibility and responsiveness of emergency operations. Several organisations report being unable to spend funds quickly because of the prevetting checks and other risk management procedures they are required to adopt, particularly in relation to OFAC regulations. There are also concerns that these measures increase the risk to aid workers by aligning them with a regime that explicitly targets one actor in the conflict – and one that is already hostile towards aid agencies. ‘Dilemma for US NGOs: Counterterrorism Laws v. the Humanitarian Imperative’, Transcript of a panel discussion hosted by the Charity & Security Network, 1 July 2009, http://www.charityandsecurity.org/system/files/July%201%20transcript.pdf.  Two US organisations, International Medical Corps (IMC) and CARE, were expelled from areas under Al-Shabaab control in 2008 for allegedly spying and gathering intelligence that led to the assassination of an Al-Shabaab leader in a US air strike. Department of Political Affairs and Regional Administrations Press Release, Harakat Al-Shabaab Al-Mujahideen, 20 July 2009, http://patronusanalytical.com/files/Al_Shabaabs_NGO_liaison_office_announces_closure_of_UN_offices_in_Somalia.php.

The current famine in Al-Shaabab-controlled areas has placed these restrictions in the spotlight, with the critical humanitarian situation forcing donors to relax their requirements. In the US, OFAC restrictions have been loosened and licences granted to the State Department, USAID and their partners and contractors to operate in Somalia. OFAC has also announced that non-USAID partners can work in Somalia without a licence, and that ‘incidental benefits’ to Al-Shabaab, such as food and medicine that might fall into their hands, are ‘not a focus for OFAC sanctions enforcement’. Office of Foreign Assets Control Frequently Asked Questions Regarding Private Relief Efforts in Somalia, 4 August 2011.  Any organisation facing demands for large or repeated payments is however required to consult OFAC prior to proceeding with their operations. Although the US has eased its restrictions on agencies working in Somalia, there is no guarantee that OFAC will not take action in the future, nor does this mean that agencies will not face prosecution in the US in relation to the material support statute, which prohibits provision of support to designated terrorists.

Conclusion

The application of counter-terrorism legislation and other measures to humanitarian operations in Somalia and other countries is challenging principled humanitarian action. Complying with conditions in donor funding agreements and curtailing operations in areas controlled by designated individuals or groups has affected the ability of humanitarian organisations to provide assistance according to the principles of neutrality and impartiality. Whilst preventing terrorist acts is an important objective, the steps many states are taking to achieve this are having an unnecessarily adverse impact on efforts to provide lifesaving assistance to those caught up in conflict.

In Somalia and elsewhere, the potential and actual adverse impact includes the threat of criminal sanctions against humanitarian actors considered to have provided support to terrorist groups in contravention of the various domestic, regional and international laws. The fear of prosecution will continue to undermine humanitarian operations, at least until there is greater clarity on the interpretation and application of these laws to humanitarian operations. In addition, the range of regulatory measures that have been introduced are raising operating costs, slowing down administrative functions, curtailing funding, undermining partnerships, reducing access and altering the quality and coordination of assistance. Islamic charities operating in Somalia and elsewhere have been most severely affected, but the impact has been felt across the humanitarian
sector.

As HPG’s research demonstrates, dialogue on this issue between humanitarian organisations and donor governments, including in Somalia, has been neither constructive nor transparent. Many donor officials working for the humanitarian branches of their governments are sympathetic to the concerns of humanitarian actors, but Finance, Home and Justice Departments are the key decision-makers, and any dialogue between humanitarian organisations and donors should include these departments as well. Crucially, a more transparent dialogue is essential to break through the climate of confusion and fear amongst all stakeholders.

A coherent dialogue with donor governments is not possible if humanitarian organisations do not first share information amongst themselves on the specific requests made by donors, how they have responded to these demands and what impact any restrictions are having on their operations. Greater transparency and a shared understanding of donor demands will allow humanitarian organisations to develop common positions and appropriate risk management frameworks. This in turn will help provide greater reassurance to donors around the use of resources, and help increase their appetite for risk. One useful course of action would be to reframe the legitimate goals of much counter-terrorism law and policy in terms of IHL. This would help avoid the compromises to neutrality involved in many donor funding agreements, and ensure that the humanitarian imperative is central in any discussions about how to provide assistance in sensitive regions.

Reaffirming humanitarian principles is central to mitigating a broader trend in many conflicts, whereby established providers of humanitarian assistance are increasingly seen as agents of Western governments. Rigid and over-zealous application of counter-terrorism laws to humanitarian action in Somalia and other conflicts undermines the independence and neutrality of humanitarian organisations in general, and could become an additional factor in the unravelling of the legitimacy and acceptance of humanitarian response in many of the world’s worst humanitarian crises.

Sara Pantuliano is Head of the Humanitarian Policy Group. Victoria Metcalfe is a Research Fellow in HPG. This article is based on a recent HPG Policy Brief by Sara Pantuliano, Kate Mackintosh and Samir Elhawary with Victoria Metcalfe, Counter-terrorism Legislation and Humanitarian Action: Tensions, Impacts and Ways Forward, October 2011, http://www.odi.org.uk/resources/docs/7347.pdf.