[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…