Starvation in Somalia

Posted in: International Law

On the cover of yesterday’s New York Times was a devastating photo of what the caption, perhaps out of deference to readers’ tender sensibilities, called a “malnourished child.”  With stick-thin legs and an emaciated belly, the small, dark, naked child, lying on his back and cradling his head in his hands, appeared to be starving.

The accompanying article said that tens of thousands of people in Somalia had already died, and that more than 500,000 children were on the brink of starvation.  According to aid officials, the current situation in Somalia is one of Africa’s worst humanitarian disasters in decades.

Beyond the consequences of the famine, the New York Times described the multiple and diverse obstacles to aid delivery.  Few aid organizations are able to operate effectively in Somalia, given the continued fighting in the capital, Mogadishu; the aggressive tactics of Al Shabaab, the militant group that controls much of the country’s territory; and the chilling impact of U.S. federal laws that bar material assistance to Al Shabaab.

“This is worse than 1992,” a doctor in a Mogadishu hospital told the Times, referring to the country’s last famine. “Back then, at least we had some help.”

Terrorism Sanctions

How best to deliver aid to needy populations in areas controlled by abusive insurgent groups—or abusive governments, for that matter—is a humanitarian conundrum.  There is always the possibility, and often the high probability, that some proportion of the aid will be siphoned off to the benefit of armed groups.  Indeed, in some instances, there is reason to suspect that militants perpetuate the suffering of the civilian population in order to attract aid.

In Somalia, the ethical issues that humanitarian organizations must consider in such situations are reinforced by extremely broad U.S. legal restrictions on providing “material support” to terrorist organizations.  The result, as I described in a previous column, is that humanitarian groups are fearful of operating in Shabaab-controlled regions out of concern that any aid leakage could put them in violation of U.S. law.

The U.S. government formally named Al Shabaab to the State Department’s main list of terrorist groups in 2008, making it a federal crime to provide them with material support.  It also, at the same time, deemed Al Shabaab to be a “Specially Designated Global Terrorist” under Executive Order 13224, barring any financial transactions with the group.

In the years that these rules have been applied, U.S. aid to Somalia has dropped by 88 percent, from approximately $237 million in 2008 to some $20 million in 2011.  Among the most dramatic consequences of these restrictions was the U.S. government’s suspension of funding to the World Food Programme’s operations in Somalia at a moment when the United Nations estimated that 3.2 million people were in need of aid.  In December 2009, lacking financial support and facing threats and attacks by Al Shabaab, the WFP suspended its work in Somalia.

Yet the most onerous aspect of the U.S. restrictions is not in limiting direct U.S. aid, it is in discouraging humanitarian organizations from using even outside funds in Somalia.  Because the U.S. legal rules are broadly written—and have been given a sweeping interpretation by the courts—even non-Americans, spending foreign funds on food and other humanitarian aid in Shabaab-controlled regions, could risk criminal prosecution for material support to terrorism.

Weighing Lives

Millions of Somalis live in famine- and drought-stricken areas in southern Somalia controlled by Al Shabaab.  If aid is not delivered there, countless people will die.  Given the high stakes, it is crucial that the U.S. terrorism restrictions not be interpreted to prevent the delivery of food, water, and other needed assistance.

“Avoiding aid diversion is a reasonable goal,” explains Jeremy Konyndyk, a policy advisor with Mercy Corps who recently visited Somalia, “But the U.S.’s overzealous approach to this challenge now threatens to write off millions of Somalis who face the very real risk of starvation.”

Yesterday, fortunately, the U.S. government issued new guidelines on Somalia indicating that it is relaxing the enforcement of sanctions relating to Al Shabaab.  While the new guidance does not alter the underlying legal rules, it is meant to give aid groups some assurance that they will not be prosecuted if some of the humanitarian assistance they provide ends up in Al Shabaab’s hands.

These new guidelines are a meaningful first step; they show that the government recognizes that a problem exists.  But they are a stop-gap measure, not a real solution.  In the future, 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 a criminal offense.

Posted in: International Law