Emerging Voices: Counterterrorism and Humanitarianism–Assessing the Current (Im)Balance

[Elizabeth Holland is an attorney with the law firm Foley Hoag LLP, where she focuses on international law and corporate social responsibility. The views expressed here are her own.]

There is clear need for effective counterterrorism measures.  Equally compelling is the humanitarian imperative to address civilian need in situations of armed conflict.  It has been questioned, however, whether the balance struck currently by counterterrorism measures impedes unacceptably the ability of humanitarian organizations to operate — particularly in areas controlled by listed armed groups (see, e.g., the Counterterrorism and Humanitarian Engagement Project at Harvard Law School and the Safeguarding Humanitarianism in Armed Conflict report published by the Charity & Security Network.  In the interests of full disclosure: I’ve been involved with both.)

Such a question belies simple answer. Policy and operational considerations are implicated in any analysis of the impact of counterterrorism measures on humanitarian action, and measuring the impact of such legislation is difficult.  A recent report commissioned by the UN Office for the Coordination of Humanitarian Affairs and the Norwegian Refugee Council presented evidence of such negative impact, including “halts and decreases in funding to blocking of projects” as well as “suspension of programmes;” also listed are “planning and programming design not according to needs, as well as the slowing of project implementation.”

What follows will focus on U.S. counterterrorism legislation and measures, their potential impact on humanitarian operations, and possible responses.  This is simply a snapshot – a range of similar measures exist in other major donor states (e.g., Canada, the U.K., Australia), the EU, and the UN.   These measures, as well as requirements found with increasing frequency in agreements with key donor states, as well as more informal listing mechanisms (such as that seen in Afghanistan in the context of DoD contracts) raise issues of criminal, civil and contractual liability for humanitarian organizations.  Often their stringency, including the lack of a humanitarian exemption, make operating in an area controlled by an armed group very difficult for humanitarian organizations.  Not only may the legal risks be significant, but some of the measures imposed on the humanitarian organizations may require cooperation of a sort that jeopardizes their neutrality and independence.

Under the U.S. material support statute (18 U.S.C. § 2339(A),(B)) the provision of material support to a foreign terrorist organization (“FTO”) is categorically prohibited.  There are a number of armed groups — also parties to an armed conflict — who are also listed as FTOs (see, e.g., Al-Shabaab, Hamas, Al Qaida).  The definition of material support is broad, and includes both tangible and intangible property, currency, facilities, transportation, lodging, services, training, and expert advice or assistance.  Though at one point the statute included an exemption for humanitarian assistance, the current version exempts only medicine and religious materials.  This exemption is interpreted narrowly, as the Second Circuit in 2011 explained that “medicine” is limited to exactly that – it does not include medical supplies or medical assistance under the statute.  Such a strict prohibition may not seem questionable. Considered, however, in the context of humanitarian operations, such a categorical approach leaves no room for maneuver, no space for even de minimus or incidental engagement of the type often operationally necessary to conduct humanitarian activities.

In addition to the broad definition of material support, the statute does not require an “intent standard” for criminal or civil liability.  The statute merely requires that a person know that an organization is designated as an FTO, or that the organization has engaged or engages in terrorist activity or terrorism (defined slightly differently under the statute).  Unlike the laws of a number of other countries, the U.S. statute does not require that the person intend to further the aims or activities of the terrorist group (see Justice Breyer’s dissent in the 2010 Supreme Court decision Holder v. Humanitarian Law Project, for an interesting discussion of a mens rea in this context).

Adding to the breadth of the material support statute is the fact that it establishes jurisdiction over U.S. citizens, permanent residents and anyone “brought into or found in the United States.”  It also covers conduct that occurs both inside and outside the United States, and reaches to anyone who “aids or abets any person over whom jurisdiction [otherwise] exists.”

Often discussed in association with the material support statute are various Executive Orders (usually issued pursuant to the International Emergency Economic Powers Act (“IEEPA”)) and their implementing regulations enforced by OFAC.  A number of Executive Orders are part of the broader U.S. sanctions framework, and extend beyond counterterrorism; quite a few of them, nonetheless, impact humanitarian organizations, as was seen in January when the M23 (an armed group active in and around parts of the DRC in which humanitarian organizations operate) was listed under both the NDAA and Executive Order 13413.  Though the sanctions framework, when compared to the material support statute, has different jurisdictional elements as well as civil and criminal penalties, many of its regulations have a similarly limiting impact on humanitarian organizations.  In addition to blocking and freezing the assets of listed individuals and groups, a number of the regulations prohibit U.S. persons (defined broadly) from “making any contribution or provision of funds, goods or services, by, to or for the benefit of a” listed entity, as well as the receipt of such funds, goods or services from a listed entity.   The regulations also prohibit attempting or conspiring to do so.

Unlike the material support statute, which provides for immunity under limited circumstances as allowed by the Secretary of State, the U.S. sanctions framework includes a licensing regime.  OFAC may issue general or specific licenses, which allow individuals or groups to undertake, within the parameters established by the license, activities that would otherwise be prohibited.  This approach, however, has been criticized as unpredictable, limited, and slow.  Additionally, under the International Emergency Economic Powers Act, there is a “humanitarian exemption” which exempts from regulation under Executive Orders “donations . . . such as food, clothing, and medicine, intended to be used to relieve human suffering.”  This exemption, however, may be overridden by the President – and doing so has clearly become the norm, as the override of the exemption is present in Executive Order 12947 and Executive Order 13224, as well as those passed within the last year on Yemen, Syria and Iran.

There are two general tracks along which humanitarian organizations might pursue action in response to the perceived chilling effect of these measures: at the political level and at the operational level.  At the political level a legislative model could be pursued that makes the necessary accommodation for humanitarian organizations operating in good faith.  This could include an exemption for humanitarian assistance (examples of which can be found in earlier versions of the U.S. material support statute as well as UN Security Council Resolution 1916 on Somalia).  This, of course, would also require the political will to apply the exemption.  Additionally, the balance between security concerns and the humanitarian imperative that is struck in the IHL framework may be instructive.  For instance, the operational principles of humanity, neutrality, impartiality and independence are recognized as fundamental to ensuring that humanitarian organizations provide assistance to the civilian population and those hors de combat based solely on need, and not for the benefit of any side in a conflict (this includes the provision of medical assistance to injured fighters no longer participating in the conflict).   Additionally, under IHL, humanitarian assistance is defined narrowly as life-saving or life-sustaining activities.  The humanitarian assistance model found in IHL reflects the pragmatism of the framework, as both the treaties and their commentary acknowledge the reality of engagement with an armed group, in the interests of the protection of civilians.

At the operational level clear and pragmatic guidance could be requested from the relevant actors as to both the scope and intended application of the various counterterrorism measures.  Additionally, organizations may request that there be increased coordination among various governmental agencies involved with implementing these measures, to ensure consistency and coherency in their implementation.  Lastly, organizations might request guidance to inform the development of their policies designed to prevent diversion of resources and to comply with the myriad obligations it faces (established by states, donor agreements, subcontractor awards, etc.).