The unintended consequences of counter-terrorism legislation are increasingly hitting humanitarian workers: blocked aid to civilians, muddied international law, and donor governments pushed to impose near-impossible conditions on NGOs. All of which, aid agencies note, makes neutrality more difficult and can criminalise legitimate aid work.
"The whole idea of independent, neutral, and impartial humanitarian action has been hugely jeopardised," Jelena Pejic, senior legal adviser at the International Committee of the Red Cross (ICRC), told the audience at a panel discussion last month on counter-terrorism laws and the criminalisation of humanitarian action.
The Red Cross movement began in 1863 to overcome the “barbarity” of denying people medical help but, with counter-terrorism measures blocking some such assistance, we’ve “slipped back into a situation where that is now more and more acceptable again”, she said.
In conversation with The New Humanitarian’s senior editor Ben Parker, panelists at the event – part of the annual Humanitarian Congress gathering in Berlin – discussed how to balance humanitarian principles and increasingly strict counter-terrorism law.
Noting the reach and impact of counter-terror measures, they explained the law and politics around defining terrorist groups, and offered definitions of the key term “material support”.
Médecins Sans Frontières strategic adviser Sandrine Tiller pointed to parts of Nigeria where she said the government’s stance means her organisation’s impartiality and medical ethics are compromised and its staff put at risk of criminal accusations.
Counter-terror law can lead to the “criminalisation” of adults and children in Syria linked to a terrorist enterprise, Tiller said. “It’s having quite a deep effect on our mission… on the whole humanitarian idea.”
Elisabeth Decrey Warner, founder of Geneva Call, a humanitarian NGO that regularly deals with armed groups, said the “terrorist” label is politicised. She insisted that civilians should get medical and other humanitarian help, regardless of which group controls their area. “This is the basic starting point: they all have the same rights,” she said.
Humanitarian advocates have won some battles.
A draft British law was revised to exempt humanitarian aid from a new offence of visiting certain proscribed areas, while Norwegian Refugee Council’s humanitarian policy adviser Emma O’Leary said lobbying is underway on a similar law in the Netherlands.
Another “small movement in the right direction”, Pejic added, is recent UN Security Council Resolution 2462, which urges states to consider the impact on impartial humanitarian actors when assessing any legislation to control financing for terrorism.
Even when humanitarian workers win special waivers under terrorism legislation, the problem of defining which organisations qualify as bona fide “humanitarian” groups still exists. Smaller organisations and local groups may find it difficult to benefit from the protections their larger, international counterparts – better known by donor governments – automatically receive.
Highlights of the discussion, edited for length and clarity, are below.
- Emma O’Leary, Humanitarian Policy Adviser, Norwegian Refugee Council
- Jelena Pejic, Senior Legal Adviser, International Committee of the Red Cross
- Sandrine Tiller, Strategic Adviser, Médecins Sans Frontières
- Elisabeth Decrey Warner, Associate Fellow, Geneva Centre for Security Policy, and Founder, Geneva Call
Who’s a ‘terrorist’ – and who isn’t?
Pejic: “If you call something a terrorist attack, by definition, whether under international or domestic law, such an act is prohibited. By imposing counter-terrorism measures on situations of armed conflict and non-state armed groups, there's a contradiction between these bodies of law… armed groups that actually want to fight in accordance with the laws of war or try to do so have no incentive to do so because no matter what they do they're going to be called terrorists.”
"There is no internationally recognised definition of terrorism"
O’Leary: “I think it's crucial to remember that there is no internationally recognised definition of terrorism. So this allows states a really broad scope in terms of developing legislation and counter-terrorism measures. Of course, they often do so in ways that reflect their own political, military, and security goals.”
Decrey Warner: "Armed groups have different names… insurgents, rebel groups… but for some [designated terrorist groups], it's more a political game between states. You can be labelled as a terrorist organisation in one country and the same organisation can be labelled as a liberation movement by another country. So the lists are not uniform. Nobody knows how to be delisted. Nelson Mandela and the ANC in 2008 were still on the US list."
Tiller: "In northern Nigeria, any person in the Borno State area who is not in the government-held camp or area is considered basically a terrorist, or criminal. And this is written into national law as well."
The (unclear) meaning of ‘material support’
O’Leary: “The [US] definition of material support is extremely broad. It extends, you know, beyond simply making payments to a designated terrorist group. It goes to training, advice, and other forms of engagement that could potentially fall within the scope of our activities."
Decrey Warner: "[The purpose of Geneva Call is] to engage armed groups on the protection of civilians and the respect of humanitarian law… If you provide training to an armed group listed as terrorist, you [are] also considered as providing material support. So if you try to explain to an armed group, to a terrorist group, to be less terrorist, you can be accused of supporting terrorism.”
Tiller: "In northern Nigeria we had two NGOs kicked out with the accusation that they provided food and drugs to ‘terrorists’. So this isn't even about a humanitarian exemption. This is actually about being criminalised for doing exactly what humanitarians are supposed to do. Civilians have been designated as terrorists."
Pejic: “We visit detainees in armed conflict all over the world… Are visits and provision of, for example, material assistance to prisons, in which ‘terrorist’ suspects are held – is that material support to terrorism? Is providing medical training to parties to a conflict support to terrorism?”
Arrest, discrimination, and other perils
O’Leary: "We, as humanitarian organisations, need to be able to engage with all parties to a conflict, for the purposes of securing access. These [counter-terrorism] measures restrict our ability to do that, and potentially limit our operations to government-held areas. If you look at maps of NGO operations in Afghanistan, you can see that there is a strong concentration of NGO operations in government-held areas. And this is in a context where the Taliban controls – estimates say – around 60 percent of the country.”
Tiller: "In northern Syria, we've been working in a displaced peoples’ camp in al-Hol, and there’s a section in that camp where the IS [so-called Islamic State] families are. People there have been treated completely differently than the rest of the camp. There was no health screening. Water provision is terrible. The 12,000 children there have no access to any kind of mental health services, toys, education. They can literally see – across the fence – that the other children have safe spaces and playgrounds. And when they’re 14, the boys are put in jail with men, with older men. So it's active discrimination against that population who have been tagged as terrorists or ISIS people."
Decrey Warner: “The risk to be arrested, to be sued, to pay huge fines… these are very important risks faced by NGOs engaging with non-state actors. These are the consequences of counter-terrorism measures. After having successfully negotiated the demobilisation of child soldiers in one country, I am now [facing] arrest in that country because we had spoken to an organisation listed as a terrorist organisation. There is something wrong.”
Blurring the legal lines
Pejic: “There has been, ever since 9/11, a blurring between the law of armed conflict, otherwise known as international humanitarian law, with the counter-terrorism regime. [Post-9/11 UN Security Council Resolution 1373] was the beginning of it all… states must take measures to criminalise any type of assistance, planning, participation, commission of terrorist acts, or any form of indirect or direct support to terrorists. Material support is not at all defined in that resolution. States were left to define it in any way they want.”
Decrey Warner: “There is clear convergence between counter-terrorism measures and humanitarian objectives: both would like to protect men, women, and children from terrorist acts. So they have the same objective, but, in fact, they are opposing.”
Tiller: “The interaction between international law and national law can be very contradictory and confusing, and is affecting our national staff as well as our international staff. The Nigerian government has said that neutrality doesn’t apply in counter-terrorism contexts. We definitely feel that we are being forced to discriminate actively against the population.”
O’Leary: “We're seeing [banks] becoming increasingly cautious in their dealings with NGOs… Some organisations have resorted to using traditional forms of transfer or indeed carrying large amounts of cash over borders. And of course that ultimately has the perverse effect of actually increasing the likelihood that that money will potentially fall into the hands of terrorist groups.”
Donors and compliance
O’Leary: “Some donors will not mention counter-terrorism at all in their grant agreements. At the other end of the scale you’ve got donors that actually go well beyond domestic legislative requirements. We are dedicated to ensuring that aid reaches its intended beneficiaries. We spend vast amounts of money trying to ensure strong risk mitigation strategies. But there's always going to be a residual risk. We cannot eliminate risk. And so this zero-tolerance approach is really incompatible with many of the areas that we're working in. What we want to see from donors is more of a risk-sharing approach. In continuing to sign these clauses and not questioning this wording, to some extent we are complicit as a sector in backing ourselves into a corner."
Pejic: “Donors [are] demanding certain requirements and funding clauses that are entirely unacceptable, well certainly to all the organisations here. We have been more or less successful in navigating financial clause requirements, but smaller organisations are having a much, much harder time in doing that. Today, we’re in a situation where the very fact of medical care by humanitarian organisations is being criminalised. We have rejected government money for particular contexts where the funding clauses were such that we could not agree with them.”
In search of humanitarian exemptions
Pejic: “We are convinced that language can be found so that a humanitarian exemption could be inserted into the next Security Council resolution of a binding nature. And that would then serve not only as an incentive, but as an obligation for governments at the national level to move similar humanitarian exemptions going forward."
O’Leary: “[A law drafted in Britain would have made it] illegal to travel to certain areas where designated terrorist groups were active. There was no humanitarian exemption in the bill, so our staff returning from working abroad could have been arrested and detained. And of course there were plenty of other issues there with journalists and people who had family members also living in those areas. [With other NGOs], we managed to get a humanitarian exemption inserted in that bill. Unfortunately, the government of the Netherlands introduced essentially the exact same legislation. Organisations are again undertaking advocacy to try and get an exemption.”
Tiller: “We had to really take a strong look in terms of due diligence and duty of care for our staff: what kinds of risks could they put themselves in by being in a ‘designated area’. We talked about it [the draft law] with the British government and expressed our concerns. They of course said ‘oh, of course this is not about you, Médecins Sans Frontières, we’ll support you’. But the problem is MSF is recognised and in the UK has a very high reputation. But what about the Syria relief organisations, or smaller organisations? Those organisations that are trying to provide humanitarian services don’t have the same kind of name protection.”