Counter-terrorism laws can stifle humanitarian action, study shows

Tuesday, July 23, 2013

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Wary aid agencies are limiting their work for fear of breaking anti-terrorism laws.

The growing body of counter-terrorism legislation is having a direct impact on humanitarian action, restricting funding, stalling project implementation and resulting in an increased climate of self-censorship by aid workers, according to an independent study.

Commissioned by the UN Office for the Co-ordination of Humanitarian Affairs and the Norwegian Refugee Council on behalf of the Inter-Agency Standing Committee, the report, published last week in Geneva, assessed the consequences of counter-terrorism policies epitomised by the Patriot Act introduced after September 11.

The UN assistant secretary general for humanitarian affairs, Kyung-wha Kang, said: "The impact of counter-terrorism measures on humanitarian action has been the source of growing concern within the humanitarian community. A particular fear has been that people in areas controlled by non-state armed groups designated as terrorists may have no or diminished access to humanitarian assistance and protection."

The study of the impact of donor counter-terrorism measures on principled humanitarian action was undertaken by independent researchers, and focused on two case studies: Somalia and the Occupied Palestinian Territory (OPT). The US, the EU and Australia among others have laws in place designed to prevent international support to groups deemed terrorist organisations.

Negative impacts

Kate Mackintosh, who co-wrote the study with Patrick Duplat, said: "We did find negative impacts on humanitarian activities, as restriction of funding, blocking of projects and self-censorship by IOs [international organisations] and NGOs.

"After 2008, for example, when the US listed al-Shabaab [Somali insurgents] as a terrorist group, we saw an 88% decrease in aid to Somalia, between 2008 and 2010. In the OPT, beneficiaries can be excluded from humanitarian aid especially in Gaza, under Hamas control [also proscribed by the US]."

The report (pdf) points out that the wariness of aid agencies over falling foul of counter-terrorism legislation had a significant impact on humanitarian programming.

"The research uncovered a high level of self-limitation and self-censorship. This was particularly acute in organisations which perceived their reputation to be highly vulnerable, most notably faith-based Islamic NGOs. The risk of criminal prosecution, as well as of significant reputational damage, appears to be leading in some cases to overcompliance," it notes.

Aid agencies sought to ensure that counter-terrorism obligations were passed on to local partners. "This is both a requirement of some donors in the primary funding agreements but also due to UN agencies' and international NGOs' own counter-terrorism requirements dictated by their headquarters. In the case of the OPT, at least four UN agencies have included standard donor-determined counter-terrorism clauses in their subsidiary funding agreements. This has caused tensions with local implementing partners," the study says.

Neutral, impartial, independent?

These measures are having a direct impact on how aid and aid workers are perceived.

"In Somalia, the implementation of sanctions and counter-terrorism measures against al-Shabaab is considered by many humanitarians to have contributed to an already polarised environment in which humanitarian actors are not perceived as neutral, impartial or independent. While hard to either demonstrate or measure, this structural impact is significant because it has consequences that will stretch into the future and across different contexts," the report says.

The impact in Gaza, for example, is that "the parameters of humanitarian action have, for the most part, been shifted so that programmes are designated firstly to avoid contact with or support to the designated group (Hamas), and only secondly to respond to humanitarian needs".

As a consequence, the role of local NGOs in humanitarian action in Gaza is diminishing. "Some local NGOs have refused grants from donors due to counter-terrorism clauses, impacting the ability of donors or UN agencies and international NGOs to find qualified partners."

Beneficiaries at risk

Beneficiaries are directly affected by the constraints. In Gaza, one NGO could not distribute food to 2,000 families because its donor did not authorise it to share its beneficiary list with the ministry of social affairs.

"This was considered to be too close an engagement with the Hamas administration. Another organisation could not progress with a planned school psychosocial project because the headmaster was perceived to be too senior a figure in the Hamas administration to co-operate with," say Mackintosh and Duplat.

Duplat highlighted that some exceptions have been made by donors in an extreme crisis. "They have changed or [made more flexible] rules and application requirements for aid, for example in the famine and drought in Somalia in 2011. The bad point is that you are not supposed to wait for an extreme crisis to happen to get flexible," he said.

Among the recommendations of the study are that: counter-terrorism policies should include exceptions for humanitarian action; they should not undermine local humanitarian actors; they should exclude ancillary transactions and other arrangements necessary for humanitarian access; and donor states should avoid promulgating on-the-ground policies that inhibit engagement and negotiation with armed groups.

"Certain donor counter-terrorism measures have presented humanitarian actors with a serious dilemma. If we abide by our principles, we may break the law and face criminal prosecution. Adherence to some counter-terrorism laws and measures may require us to act in a manner inconsistent with these principles," notes the study foreword.

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