Humanitarianism As Terrorism

Posted in: International Law

Somalia is once again in the news.  A severe famine, occurring in the midst of armed conflict, has led tens of thousands of Somalis to flee over the border into Kenya and Ethiopia.

The death rate among arriving refugees is horrifyingly high; the death rate in Somalia itself—while not known with certainty—is no doubt much higher.

As in 1992, when widespread starvation in Somalia triggered a multinational relief effort and an ill-fated U.S. intervention, humanitarian aid groups are mobilizing to deliver food and other supplies to civilians there.  While Al Shabaab, the Al Qaeda-affiliated Islamist group that controls most of Somalia’s territory, barred aid delivery for the last year and a half because it mistrusted the aims of Western humanitarian relief organizations, it recently announced that the ban was over.

This welcome decision may save thousands of lives. Yet another ban, this one imposed by the United States, still keeps the prospect of effective aid delivery to Somalia in jeopardy. Extremely broad U.S. legal restrictions on providing “material support” to terrorist organizations have made humanitarian groups fearful of operating in Shabaab-controlled regions out of concern that any aid leakage could put them at risk of criminal prosecution for terrorism.

An Emergency in Humanitarian Terms

A country without a functioning central government, Somalia has experienced two decades of near-continuous armed conflict. Humanitarian indicators there have long been strikingly negative, from low life expectancy to high infant mortality to chronically high rates of malnutrition.

Yet even against this backdrop, the current humanitarian crisis is immense.  Today the United Nations declared a famine in parts of Somalia, as the country is suffering its worst drought in more than half a century.  It was the first time that the U.N. has applied the term to Somalia since 1992.

The facts on the ground militate in favor of an emergency response.  Thirty percent of children in Somalia are estimated to be acutely malnourished, and four children out of every 10,000 are said to be dying daily. In parts of one of the regions to be officially certified as a famine-hit area, the number of people dying is believed to surpass the official threshold for that classification by a factor of 10.

A spokesperson for the U.N. High Commissioner for Refugees who recently deemed Somalia “one of the world’s worst humanitarian crises” warned that the situation there is becoming a “human tragedy of unimaginable proportions.”

Material Support to Terrorism

Yet the humanitarian imperative in Somalia faces worrying legal obstacles.  Under U.S. federal law, the provision of material support to a terrorist group—even unwilling and inadvertent support—is a federal crime punishable by up to fifteen years of imprisonment. Given that Al Shabaab has been officially designated by the U.S. as a terrorist organization, humanitarian groups operating in Shabaab-controlled areas could easily run afoul of these laws.

Not only does the material support ban criminalize any leakage to Al Shabaab of humanitarian aid meant for victims of the famine in Somalia, it also leaves aid groups vulnerable to prosecution if they coordinate with Al Shabaab when providing relief, even if there is no other way to get the aid to the areas concerned.

While U.S. material support laws exempt medicines from their coverage, the humanitarian exemption is extremely narrow.  Even medical services are covered under the laws, as are such basic humanitarian goods as food, water, tents, and blankets.

Finally, the laws are written so broadly that they not only apply extraterritorially, they potentially reach foreign staff working in foreign organizations abroad.  In practical terms, it’s worth emphasizing, the jurisdiction of these laws is unlimited.  And the U.S. Supreme Court, addressing the material support issue for the first time in a case decided last year, signaled that it would interpret the laws’ expansive provisions in an aggressively broad manner.

Humanitarian Reform

To help with the immediate crisis, the U.S. Treasury Department should issue licenses to facilitate humanitarian groups’ operations in Somalia.  In the longer term, however, legal reforms are needed.  Congress needs to seriously consider how to amend the laws governing material support of terrorism so that the provision of legitimate and necessary humanitarian aid is not hindered.

Humanitarian groups surely need to take rigorous steps to prevent aid from being misdirected or misused for the benefit of groups that engage in terrorism.  But material support laws should not be a blunt instrument that serves to block efforts to get humanitarian necessities like food, water, and shelter to people in desperate need of them.

Posted in: International Law