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The impact of counter-terrorism legislation on humanitarian action in Somalia

Полковников Дмитрий Николаевич ­– студент Санкт-Петербургского государственного университета по направлению "Востоковедение и африканистика ".

Abstract: The article characterises humanitarian response on complex situation in Somalia. Special attention is paid to the implementation of humanitarian actions within the counter-terrorism legislation.

Аннотация: В статье характеризуется гуманитарное реагирование на чрезвычайную ситуацию в Сомали. Особое внимание уделяется осуществлению гуманитарной деятельности в рамках законов о борьбе с терроризмом.

Keywords: Somalia, donor countries, humanitarian response, United Nations, counter-terrorism legislation.

Ключевые слова: Сомали, страны-доноры, гуманитарная помощь, ООН, законы о борьбе с терроризмом.

Counter-terrorism lawmaking has a considerable impact on humanitarian activities in Somalia. The term of “terrorism” is not yet defined in the legal framework, however, as a matter of practice this term is used to describe politically-motivated violence aimed at homicide or causing mutilation to civilians with the view to intimidate broader public. [1] However, government defines “terrorism” as “terrorist” action of violence against the state committed by non-state armed actors. Whereas similar actions committed by groups of political or ideological supporters are treated as part of “liberation struggle”. Today, we have lots of domestic, regional and international laws aimed at combatting specific acts of terrorism or against some “specific” persons.

Counter-terrorism laws and international humanitarian law share the goal of defending civilians from attacks. However, in some of the cases the provisions of such laws are at variance. Thus, the counter-terrorism law treats one party as culpable by default, whereas international humanitarian law equally governs behaviour of both the parties of the conflict. Though international humanitarian law sets limits for warfare, counter-terrorism laws may implode these limitations and complicate the situation for those who are affected by the conflict preventing them from receiving humanitarian protection and aid.

In 1992, a sanction was imposed on Somalia placing an embargo on weapon supplies to this country. Resolution 773 was adopted by the United Nations Security Council [2]. In 2008, targeted sanctions were added by Resolution 1844 aimed at individuals and legal entities [3]. UN member states implemented this resolution through a number of measures, including criminal liability for providing resources and material support to those who are included in the list, including without limitation the dangerous terrorist group of Al-Shabaab. In 2010, Resolution 1916 was adopted suspending sanctions for humanitarian reasons [4]. However, this was applicable only to “the United Nations, its specialised agencies or programmes, humanitarian organisations having observer status with the United Nations General Assembly that provide humanitarian assistance, or their implementing partners.” [5] These, however, do not include Médecins Sans Frontières (Doctors Without Borders) independent medical organisation that is neither a part of the UN, nor its implementing partner. Though Resolution 1916 suspending sanctions for humanitarian reasons may be treated as mitigation of humanitarian cost of sanctions and counter-terrorism laws, there are still concerns that this Resolution may create a precedent of rendering humanitarian aid only in certain special circumstances and not every time when people may need it, as it is supposed to be the normal practice.

Many humanitarian organisations present in the central and southern part of Somalia (which is a very instable region controlled mainly by the Al-Shabaab) face the sanctions regime. Thus, we should mention the Red Cross that in 2011 delivered about 400 tonnes of provisions to the most troubled regions of Somalia [6]. This was particularly urgent due to a drastic change of climate that entailed considerable loss of cattle.

Humanitarian organisations being subject to limitations set by Resolution 1916 must inform UN Emergency Relief Coordinator on any cases of aid-rendering in Somalia. This information is included in the reports of the UN Security Council.

In 2009, fears that Al-Shabaab might take advantage of humanitarian aid (especially, food aid) inflow to the country were realised. As a result, US Office of Foreign Assets Control (OFAC) suspended humanitarian aid to Somalia for the amount exceeding USD 50 million. [7] In March 2010, the UN Control Group discussed concerns about food supply to Somalia. UN Report stated that three suppliers controlled more than half of all the food aid sent to Somalia. This was disputed by the World Food Programme. Though risk of aid rechannelling was, of course, eliminated, requirements applicable to Somalian institutions are still quite stringent. The cost of these measures is quite high in terms of both finance and flexibility and promptness in addressing the emergency situations. Some organisations report that they have not been able to promptly spend money due to checks and other procedures that are imposed by OFAC. Besides, there are concerns about increasing risk exposures to persons who are in charge of rendering aid. The activities of such persons are aimed at one party of the conflict who is sure to be hostile towards the institutions that render aid. [8] In 2008 two US organisations (International Medical Corps and Cooperation for Aid) were hunted away from the regions controlled by Al-Shabaab being accused of spying and gathering secret information. As a result, the Al-Shabaab leader was killed in a US airstrike. [9]

Today, as the regions controlled by Al-Shabaab are famine-hit, these sanctions are spotlighted and the critical situation made the donor countries to ease their pressure. The US have reduced OFAC-imposed restrictions and granted licenses to the US Department of State, the United States Agency for International Development and their partners and contractors to carry out activities in Somalia. Besides, OFAC announced that partners who are not members of the United States Agency for International Development are not required to have a license to work in Somalia and that food and medicinal drugs that might fall in the hand of the Al-Shabaab members shall not become subject to the OFAC sanctions. Though the US have reduced their pressure on institutions operating in Somalia, there is no guarantee that OFAC will refrain from imposing further sanctions in future.

Enforcing counter-terrorism laws and imposing other sanctions in reference to humanitarian operations in Somalia and other countries is a challenge in terms of humanitarian activities. Compliance with the donor funding agreements and winding down operations in areas controlled by the listed persons or groups affected the ability of humanitarian organisations to render aid in line with the principles of neutrality and impartiality. Though preventing terrorist acts is an important goal, steps taken by many countries to achieve it negatively affect the efforts taken to help those who were drawn into the conflict.

Like in some other countries, in Somalia potential and actual exposures for humanitarian actors include the risk of becoming subject to criminal sanctions if alleged to support terrorist groups in violation of domestic, regional and international laws. Fear to be prosecuted will impair humanitarian operations, at least until these laws are construed and enforced in an unambiguous way in relation to humanitarian operations. Besides, a whole range of regulatory measures was taken to increase administrative expenses, slow down administrative functions, decrease funding, and undermine partnership relations, limiting access and changing the quality and coordination while rendering aid. Islamic charity organisations carrying out their activities in Somalia and other countries were affected to the maximum extent. However, these factors affected the whole humanitarian sector.

Humanitarian organisations and governments of donor countries, including Somalia, have discussed the matter, but their dialogue was neither meaningful nor transparent. Many official donors working for humanitarian bodies of their respective governments understand the challenges faced by humanitarian organisations. Being the main policymakers in the area, the Financial Departments, Departments of Internal Affairs and Ministries of Justice have to take part in dialogue with humanitarian organisations and donors. It is crucially important to ensure a transparent dialogue to overcome confusion and fear of all the parties concerned.

A concerted dialogue with the governments of donor countries cannot be arranged unless the humanitarian organisations first exchange information on specific needs of donors as well as on response to these requests and on how their activities can be impaired by restrictions of any kind. Growing transparency and a common view of donors needs will help humanitarian organisations to forge a common stand and the relevant tools to address the risks. In its turn, this may contribute to the donors’ confidence in the course of using resources and to their growing risk appetite. One useful thing that can be done to that end is reinterpreting the legal objectives of many counter-terrorist laws and policies. This may help avoiding middle-ground solutions in regard to neutrality in terms of many financing agreements on the part of the donors and ensuring that humanitarian imperative becomes central in any discussions on rendering aid to sensitive regions.

Restating humanitarian principles is of key importance to mitigate a larger trend in many conflicts to treat the established suppliers of humanitarian aid as surrogates of Western governments. Rigid and overzealous enforcement of counter-terrorism laws towards humanitarian activities in Somalia and other conflicts undermines autonomy and neutralism of humanitarian organisations as a whole and may become another factor undermining legitimacy and acceptability of humanitarian response in many severe humanitarian crises all over the world.

References:

  1. Bruce Hoffman, Inside Terrorism. Ultra. Kultura, 2003
  2. United nations security council. Security Council Committee pursuant to resolution 751 (1992) concerning Somalia – 1992 – URL: https://www.un.org/ga/search/view_doc.asp?symbol=S/RES/751(1992)
  3. United nations security council. Security Council Committee pursuant to resolution 1844 (2008) concerning Somalia – 2008 – URL: https://undocs.org/S/RES/1844(2008)
  4. United nations security council. Security Council Committee pursuant to resolution 1916 (2010) concerning Somalia – 2010 – URL: http://unscr.com/en/resolutions/doc/1916
  5. United Nations Department of General Assembly and Conference Management «Resolutions and Decisions of the Security Council 2014-2015», 2017.
  6. A. Sotov. Red Cross Has Delivered 400 Tonnes of Food to Somalia// Rossiyskaya Gazeta. – 2011 – URL: http://www.rg.ru/2011/07/25/somali-site-anons.html
  7. Brittney Irby «Al-Shabaab and Humanitarianism in Somalia: Lessons Learned». University of Denver, 2012.
  8. The impact that counter-terrorism measures are having on the legitimate operations of NGOS – our goal is to do something about it. Charity & Security Network, 2009.
  9. Margaret L. Satterthwaite, Jayne Huckerby «National Security, and Counter-Terrorism: Human Rights Perspectives», 2013. 288 p.
  10. S.V. Aleinikov. Somalia: Political Situation and Problems of National Reconciliation, M., 2012.

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