A June 2012 report by the Charity & Security Network – Safeguarding Humanitarianism in Armed Conflict: A Call for Reconciling International Legal Obligations and Counterterrorism Measures in the United States-examines how the international humanitarian obligations of the U.S. conflict with domestic counterterrorism measures when applied to charities seeking to aid civilians in areas of armed conflict. The report details the challenges the counterterrorism laws have created and calls on the U.S. government to align counterterrorism measures with international humanitarian law to allow for unimpeded access to civilians in need.

Read or Download the Full Report Here

The report comes at a time when crises, particularly those in Africa, are showcasing the consequences of a U.S. counterterrorism regime that does not sufficiently take humanitarian concerns into account. In the Sahel region, nearly 18 million people (including over one million children) are in the midst of a “deepening humanitarian crisis,” according to the UN World Food Programme. Armed conflicts in Mali and Niger have forced hundreds of thousands to flee their homes and enter already over-full refugee camps. And in Somalia, while there have been great strides made in recovering from 2011’s famine, 1.4 million are still at risk of entering a new food crisis, according to Save the Children.

Safeguarding Humanitarianism in Armed Conflict identifies several specific ways that U.S. counterterrorism laws fail to match up with international humanitarian law principles:

  • The “material support” prohibition and U.S. sanctions programs block charities’ access to civilians by making it illegal to engage in negotiations with listed terrorist groups that control territory, even when it is limited to arranging access to civilians. Unintentional leakage of aid to these groups can also be treated as a serious offense, leading to 15 years in jail and freezing of all a charity’s funds—effectively shutting them down.

  • The broad ban on engagement with listed groups runs afoul of international humanitarian law, which calls for only temporary securityrestrictions on access to civilians. But U.S. restrictions impose a blanket, permanent ban instead.

  • The only significant relief valve that the U.S. deploys, a license from the Treasury Department waiving the restrictions imposed by law, is too slow to respond to crises and disasters.  It also frequently imposes impractical conditions on the license, making the overall process ineffective and costly.

  • U.S. counterterrorism laws also fail to recognize the neutral and independent status that charitable groups require to operate safely and effectively in conflict zones.

Many U.S. based charities and non-governmental organizations (NGOs) have called for the reform of counterterrorism laws that impede their work. During the 2011 famine in Somalia, the International Rescue Committee called for the U.S. to “remove legal barriers to providing aid in Somalia,” because “Private aid agencies have had to leave areas of Southern Somalia where al- Shabaab… is in control, or risk violating U.S. anti-terrorism provisions.” Jeremy Konyndyk, Director of Policy and Advocacy for Mercy Corps said that U.S. counterterrorism laws have “thrown up significant roadblocks to the humanitarian response and impeded preparedness” in Somalia.

Members of Congress from both political parties are aware of the unintended consequences of the blanket bans on engagement with listed groups, and have urged corrective action. In a letter to Attorney General Eric Holder in August 2011, Sen. Patrick Leahy, Chair of the Judiciary Committee, called for “a dialogue between relevant executive branch agencies and effected organizations and individuals,” to create a “set a guidelines that remove uncertainty with the scope of the material support law.” Rep. Chris Smith has also stated during a September 2011 hearing that he would introduce legislation to “make clear that humanitarian organizations would be excluded from [material support] concerns.”

The report urges the U.S. government to work with U.S. charitable groups to craft comprehensive approaches that address the barriers created by the “material support” prohibition and other counterterrorism policies. International humanitarian law can play a guiding role in any reforms, to ensure that policies respect U.S. security needs and the humanitarian needs to civilians in crisis.