FOCUS ON – Counterterrorism laws: humanitarian exemptions under debate

Posted by: on Sep 12, 2016 | No Comments

Humanitarian action faces growing political constraints. Counterterrorism laws are a prime example and have negative consequences such as restricting funding allocated to complex crises, delaying project implementation or creating self-censorship by NGOs. In that perspective, should NGOs advocate more for humanitarian exemptions?

 


 

Over the past decades and as a consequence of the “global war against terrorism”, the United Nations Security Council has increasingly instituted sanctions regimes, derived from its authority granted in the UN Charter in matters of international peace and security. UN Security Council resolutions are legally binding on member states which must implement domestic measures accordingly. Through states’ domestic laws, the sanctions regimes may then become binding on humanitarian NGOs with potential negative consequences on humanitarian response in complex political environments. NGOs relying on state donors may also be bound by grants or specific contract clauses requiring compliance with Security Council resolutions or domestic laws. As of today, only Australia and New-Zealand have included humanitarian exemptions in their counterterrorism laws. For instance, the Australian criminal law prohibits associating with a terrorist organization, but specifies that this does not apply in a number of situations, including “where the association is only for the purpose of providing aid of a humanitarian nature[1].

WHEN AND HOW UN SANCTIONS REGIMES IMPACT HUMANITARIAN ACTION

According to a recent study from the Harvard Law School Program on International Law and Armed Conflict[2], humanitarian response may have been potentially impacted by thirteen of the sanctions regimes established by the Security Council relating to the following contexts: Democratic Republic of the Congo (Res. 1493 and subsequent resolutions), Côte d’Ivoire (Res. 1572 and subsequent resolutions), Sudan (Res. 1591 and subsequent resolutions), Lebanon (Res. 1636), North Korea (Res. 1718 and subsequent resolutions), Iran (Res. 1737 and subsequent resolutions), Somalia and Eritrea (Res. 1916 and subsequent resolutions), Libya (Res. 1970 and subsequent resolutions), Central African Republic (Res. 2127 and subsequent resolutions), Yemen (Res. 2140 and subsequent resolutions), South Sudan (Res. 2206), Al-Qaeda, the so-called Islamic State of Iraq and the Levant (ISIL) and designated associates (Res. 1267/1989 and subsequent resolutions) and the Taliban and designated associates (Res. 1988 and subsequent resolutions).

With respect to each sanctions regime, states are required to ensure that “their nationals or any persons within their territories” do not make available “any funds, financial assets or economic resources” to or for the benefit of individuals and entities considered by the Security Council as terrorist individuals or groups. In most sanctions regimes, humanitarian actors are not exempt from these proscriptions and as a consequence, many states’ domestic laws criminalize the provision of material and economic support to terrorism, with generally a very broad or intentionally vague definition of what it may cover. After the UN Security Council resolution 1373 (2001) that called member states to “criminalize active and passive assistance for terrorism in domestic law”, no real definition of “active and passive assistance” was given at the international level, and each member state developed its own understanding and scope of legal requirements and prohibitions. For instance, taxes or checkpoint fees that a humanitarian NGO may have to pay in order to access an area where civilians are in need of assistance, could fall under the qualification of “funds, financial assets or economic resources” if the authority to whom the NGO pays the fees and taxes is regarded as a terrorist entity and subject to sanctions. Similarly, provisions of sanctions regimes often proscribe “material support”, with no further explanation as to what this means. As a consequence, soft activities such as training could potentially be interpreted as “material support”. For instance, this is the case of the Canadian government, which has listed Hamas as a terrorist entity. Following this provision, training activities such as International Humanitarian Law dissemination courses for instance, may be considered as “material support” if they benefit staff affiliated to Hamas. Needless to say, this may constitute an obstacle for an organization that works in Gaza. Other activities of NGOs also may violate counterterrorism laws such as: providing of basic needs assistance to civilian populations in areas controlled by armed groups associated with terrorism; activities of assistance to internally displaced persons – where individuals associated with terrorism may be among the beneficiaries[3].

PROS AND CONS OF HUMANITARIAN EXEMPTIONS

With regard to counterterrorism provisions, humanitarian exemptions are designed to help principled NGOs avoid sanctions for activities falling into the scope of their mission and dedicated to alleviating human suffering. Current debates regarding the establishment of humanitarian exemptions are well synthesized in the study from the Harvard Law School Program on International Law and Armed Conflict[4], which highlights the pros and cons on that matter. On the one hand, those in favor argue that humanitarian exemptions are necessary in order to provide legal clarity and facilitate legal protection of NGOs while delivering humanitarian assistance in complex political contexts. They emphasize that most principled NGOs have already developed international policies and due diligence measures as part of a strategy to prevent and mitigate risks of aid diversion and to show the donors that they take such risks seriously. On the other hand, objectors fear that humanitarian exemptions will ultimately limit humanitarian action, as the creation of explicit exemptions will set a precedent in which humanitarian action is exempted only in particular circumstances, rather than being the norm in situations of humanitarian crises. This could lead to humanitarian operations for which exemptions are granted, and others for which they are not, regardless of the humanitarian principle of impartiality, International Humanitarian Law and international normative frameworks. Another reservation pointed out is the fact that any humanitarian exemption that relies on a Security Council decision may face some difficulties regarding its implementation, as it would require domestic codification in order to be effective; and this may get in the way of quick responses to emergency crises. Moreover, objectors express the concern that humanitarian exemptions could be seen as an endorsement by the humanitarian community of sanctions regimes, thus undermining humanitarian actors’ position of neutral and independent actors. As for opponents who are not humanitarian professionals, they argue that humanitarian exemptions could be used as a breach by non-principled humanitarian organizations, allowing them to finance or support terrorist entities through the back door.

HUMANITARIAN EXEMPTION: THE SOMALIAN EXAMPLE

A humanitarian exemption could vary widely in what it covers in terms of geographic, material and temporal scope. One well-known example of humanitarian exemption is the one that applied to Somalia. The sanctions regime in Somalia dates back to 1992, when an arms embargo was imposed under UN Security Council resolution 733. Resolution 1844 (2008) added targeted sanctions against listed individuals and entities comprising the members of Al-Shabaab and ten other individuals. The measures criminalized the provision of resources and material support to entities on the list – which was drawn up in 2010. Resolution 1916 (2010) introduced a humanitarian exemption to the sanctions, but it was initially limited to one year (later renewed) and it does not cover all humanitarian NGOs since it applies to “the United Nations, its specialized agencies or programmes, humanitarian organizations having observer status with the United Nations General Assembly that provide humanitarian assistance, or their implementing partners[5]. Although member states have a legal obligation to carry out decisions of the Security Council, sometimes the reality is different. For instance, in that case, whilst the substance of resolutions 1844 and 1916 has been implemented by the United States, humanitarian exemption has not been incorporated into their domestic laws[6]. Furthermore, the exemptions monitoring mechanisms of resolution 1916 put into question the respect of neutrality and independence of humanitarian actors. The resolution indeed requires the United Nations Humanitarian Aid Coordinator for Somalia to report on the implementation of exemptions to the Security Council every 120 days, including humanitarian organizations’ requests and “any impediments to the delivery of humanitarian assistance in Somalia[7]. As it was already noticed in a HPG Policy Brief in 2011[8], “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. This alignment is compounded by the fact that humanitarian organisations that fall within the terms of the exemption in Resolution 1916 are required to assist the UN Humanitarian Aid Coordinator for Somalia in their reporting”.

ANOTHER WAY OF PROTECTING HUMANITARIAN ACTION FROM COUNTERTERRORISM LAWS’ ADVERSE EFFECTS?

As mentioned before, a lot of principled NGOs have already developed risk-mitigation measures as part of their internal monitoring mechanisms to avoid aid diversion, such as pre-vetting checks and assessments of their partners, field monitoring visits, audits, tracking systems, etc. Substantial staff time and financial resources are already being devoted to checking lists of partners and decoding donors’ grants and specific contracts clauses related to counterterrorism measures. Without any doubt, this creates additional bureaucracy for NGOs, which is not covered by donors and creates delays in humanitarian assistance delivery. Of course, local NGOs are generally not equipped to respond to such prerequisites. That is why a right balance between the need to mitigate aid diversion risks and the need to avoid costly, time-consuming and excessive due diligence measures must be found. Rather than establishing humanitarian exemptions on a case-by-case basis through decisions of the UN Security Council – which may be political –, flexibility must be preserved while assuring NGOs that they will not be endangered by disproportionate sanctions related to counterterrorism measures. In that perspective, advocating for a resolution of the UN Security Council which establishes a clear and general exemption for humanitarian action could be the way of preserving humanitarian aid responsiveness and impartiality, which requires that humanitarian aid be delivered solely on the basis of needs, regardless of the “global war on terrorism”.

 


 

[1] Australian Criminal Code Act, Division 102.8.

[2] Harvard Law School Program on International Law and Armed Conflict, Katie King with Naz K. Modirzadeh and Dustin A. Lewis, Understanding humanitarian exemptions: UN Security Council sanctions and principled humanitarian action, April 2016.

[3] International Committee of the Red Cross, International Humanitarian Law and the Challenges of contemporary armed conflicts, 2011.

[4] Harvard Law School Program on International Law and Armed Conflict, Katie King with Naz K. Modirzadeh and Dustin A. Lewis, Understanding humanitarian exemptions: UN Security Council sanctions and principled humanitarian action, April 2016.

[5] UN Security Council Resolution 1916 paragraph 5, 2010.

[6] Kate Mackintosh, Holder v. Humanitarian Law project: implications for Humanitarian Action: A view from Médecins Sans Frontières, 2011.

[7] UN Security Council Resolution 1916 paragraph 11, 2010.

[8] HPG Policy Brief 43, Sara Pantuliano, Kate Mackintosh and Samir Elhawary with Victoria Metcalfe, Counter-terrorism and humanitarian action: Tensions, impact and ways forward, October 2011.