Read caption © 2018 European Union (photo by Samuel Ochai)

Counter-terrorism and humanitarian action: the perils of zero tolerance

Joel Charny, Director NRC USA|Published 29. May 2019
Countering terrorism is a foreign policy imperative for the United States and most major donors to humanitarian organizations. The onus tends to be on implementing agencies, whether from the U.N. system or individual nongovernmental organizations like mine, to fall in line. The pressure to adhere to governments’ agendas is immense.

This opinion piece was first published by War on the Rocks.

From the beginning of my career in international relief and development, when I witnessed aid being withheld from millions of Cambodian survivors of the Khmer Rouge to force political change in the country, I have resisted a political, security-based approach to humanitarian assistance. I’ve seen this approach punish civilians in El Salvador and Mozambique during the Reagan Doctrine wars; Sri Lanka during its long, brutal ethnic conflict; and, more recently, Somalia and Syria.

Today, an unrecognized consequence of the “war on terror” has been its effect on the ability of humanitarian organizations to reach people in need. Because there is far too little public discussion of this reality, I welcomed Jessica Trisko Darden's article in War on the Rocks, “Humanitarian Assistance Has A Terrorism Problem. Can It Be Resolved?” Trisko Darden argues that humanitarian organizations have a history of aiding terrorism, sometimes inadvertently and indirectly, and sometimes more intentionally and directly. She posits a clash of cultures between humanitarian organizations and the governments that fund them — a “conflict between the aspirational and the operational.” To resolve this conflict, the article suggests that humanitarian organizations – including mine, the Norwegian Refugee Council (NRC) – shift toward accepting donor governments’ prohibitions on working in areas controlled by terrorist groups, even if this means distorting the mission to deliver assistance to the most vulnerable. While she concedes that aid organizations already have to work through confusing government regulations and significant bureaucratic red tape, she ultimately places the burden on the humanitarian sector to become a more reliable partner in the fight against terrorism.

I argue the contrary: The U.S. approach to counter-terrorism has a humanitarian problem. On the one hand, the United States professes adherence to humanitarian principles and commits to remaining the largest donor to humanitarian response in the world. On the other, winning the global war on terrorism is an overarching imperative and rationale of U.S. foreign policy. This contradiction is becoming acute. Put simply, the global war on terror is morally bankrupt and will never succeed if the victims of ISIL and Boko Haram cannot receive protection, humanitarian assistance, and support to rebuild their lives. Further, humanitarian organizations that can afford to opt out of partnering with the U.S. government will increasingly do so rather than risking being fined and discredited as the result of investigations based on rules they never signed on to.

My argument has three pillars. First, the core contradiction is between humanitarian action and the political agendas of governments and non-state armed groups. Second, contrary to Trisko Darden’s implication that humanitarian agencies don’t distinguish between armed actors, including designated terrorist groups, and civilians, in fact these agencies make every effort to do so to carry out their mission in keeping with humanitarian principles. Finally, far from trying to evade or work around counter-terrorism regulations, humanitarian organizations devote an increasing amount of time and resources to comply with a complex and ever-changing regulatory regime in which they are forced to assume all the risk.

Trisko Darden concludes: “Now is the time to seek a middle ground between the noble principles of humanitarian assistance and the operational realities of the counter-terrorism mission.” Yes, let’s find a middle ground. But the way to do so is not by forcing humanitarian organizations to compromise their work to better comport with the political imperatives of the global war on terror. Rather, humanitarian groups and national governments should find it by adopting a risk-sharing approach that allows the humanitarian sector to continue identifying and helping the most vulnerable victims of conflict and violence.

The Pressure to Adhere to the Counter-Terror Political Agenda

As Trisko Darden points out, humanitarian organizations strive to respond to the needs of the most vulnerable people irrespective of political agendas. In 2019, the U.N. Office for the Coordination of Humanitarian Affairs estimates that close to 132 million people in 42 countries will require assistance. The humanitarian imperative is grounded in a needs-based response to suffering on such a massive scale.

Donor governments like the United States, by contrast, make funding decisions based on political criteria. No matter how often the United States expresses its adherence to humanitarian principles, by definition the U.S. aid program is an expression of its foreign policy objectives. Thus, the primary contradiction between governments and humanitarian organizations is rooted in politics. The question is whether humanitarian organizations should be asked to narrow their view of who deserves aid, or whether national governments should find ways to be more open to aid organizations’ conceptions of who is most in need. Countering terrorism is a foreign policy imperative for the United States and most major donors to humanitarian organizations. The onus tends to be on implementing agencies, whether from the U.N. system or individual nongovernmental organizations like mine, to fall in line. The pressure to adhere to governments’ agendas is immense.

This pressure manifests in a number of ways. First and foremost, many humanitarian organizations are highly dependent on government funding, which limits their operational independence. They often choose to accept funding with restrictive counter-terror clauses as part of the bargain. Second, after years of global focus on the threat of terrorism, the public and the media are understandably wary of any risk that aid will be diverted from those in need to those affiliated with armed groups. Fear of even the slightest diversion damaging the reputation of the organization creates pressure to accept the premise and the procedures of government-funded aid programs. And especially in the case of Israel and Palestine, there are individuals and advocacy groups prepared to attack the legitimacy of organizations based on real or imagined violations of counter-terror regulations.

The clearest example of counter-terrorism restrictions hampering aid operations is the Somalia famine in 2010–2011. Donor governments and governments in the region recognized the famine threat due to severe drought in the Horn of Africa in September 2010. In Ethiopia and Kenya fast action prevented thousands of deaths thanks to generous donors, cooperative host governments, and lack of legal obstacles. In Somalia, in stark contrast, deliveries of emergency food and medicine were delayed for more than 10 months while those same donor governments and the United Nations worked out how to provide legal space for a response in areas controlled by the designated terrorist organization Al-Shabaab. While U.N. Security Council Resolution 1916 included a humanitarian “carve-out” that finally allowed the response to proceed, more than 260,000 Somalis died in the famine, half of them children under five.

Had donor governments been more willing to allow humanitarian organizations to negotiate access to south-central Somalia, earlier action might have prevented many of these deaths. This response would have come with a risk of diversion. But as I will discuss, humanitarian groups are well aware of the challenges and have procedures in place to reduce that risk if not entirely eliminate it.

In northern Nigeria today, a combination of national government restrictions and counter-terror regulations by donor governments puts an estimated four million people are beyond the reach of humanitarian agencies. In effect, large groups of vulnerable people cannot be reached due to their geographic location.

There is no guarantee that negotiations with al-Shabaab or Boko Haram would result in an ability to deliver aid to the most vulnerable. But counter-terror regulations discourage risk-taking and negotiating with belligerents for the purpose of carrying out humanitarian programs.

Remaining Principled in the Midst of Conflict

Trisko Darden claims humanitarian agencies advocate for a system that does not distinguish between terrorists and civilians: “Humanitarian organizations do not take sides in a conflict and typically offer services to both civilians and belligerents, regardless of their political allegiance.” She cites a speech by Peter Maurer, the president of the International Committee of the Red Cross (ICRC). In fact, this speech is primarily devoted to the importance of identifying and engaging with belligerents to maintain access to civilians — a humanitarian practice that requires making a precise distinction between the two. To be sure, these belligerents may include nonstate armed groups, including sanctioned entities, which is when the classic engagement strategy of ICRC butts up against counter-terror measures that organizations sometimes interpret as prohibiting all contact.

But what ICRC and other humanitarian groups insist on is the necessity of identifying the most vulnerable civilians, determining the obstacles to providing protection and assistance to them, and finding ways to overcome those obstacles. As Trisko Darden points out, sometimes overcoming these obstacles involves paying taxes and fees to sanctioned groups that control access to large numbers of desperate people. With no clear standards to abide by, negotiating access involves keeping these payments to a bare minimum in return for a substantial payoff in lives saved. But none of this can be done without clearly distinguishing between belligerents and civilians. The core of the humanitarian approach is to distinguish the innocent from the men with guns.

In complex environments such as northwest Syria or northern Nigeria, this is an extremely challenging task that requires knowledge of the local context, expert staff, and the trust of the community. Access negotiation is both a skill and an art. Having identified the need for greater capacity in the humanitarian sector to conduct such negotiations in difficult environments, both ICRC and my organization, the NRC, are working to train front-line humanitarian staff in the necessary skills (the latter with financial support from the U.S. Office of Foreign Disaster Assistance). Underlying this effort is a rededication to being present in conflict settings rather than relying on remote funding and management arrangements, in which the likelihood of aid diversion to sanctioned groups becomes greater.

Navigating the Counter-Terror Legal Landscape: Compliance

Humanitarian organizations commit to following the counter-terror regulations established by donor governments. The example of NRC attests to the seriousness with which the sector takes its obligations. In the Middle East region alone, we have increased our spending on compliance from $40,000 in 2017 to $575,000 this year for a dedicated unit, including a full-time anti-corruption investigator. Including the costs of staff, estimated NRC expenses devoted to compliance with counter-terror regulations amount to over $1 million.

To prevent diversion of funds to individuals associated with sanctioned terrorist organizations, NRC vets partners, suppliers, and staff. This is a global policy. While individual governments may have different requirements as to vetting and different lists of sanctioned entities, national laws are increasingly irrelevant in an interlocked world in which legal obligations cross borders. NRC accepts funding from more than 20 governments and U.N. agencies. Our approach therefore is to do the maximum in terms of compliance rather than parsing which donor government requires what. For NRC, vetting involves checking names against ten publicly available lists of individuals and organizations with connections to sanctioned groups. In the Middle East alone in 2018 NRC conducted 7,054 screens for partner staff, suppliers, and our own employees.

In this context it is especially galling to have Trisko Darden single out NRC for being “oblivious to the potential terrorist ties of employees and sub-grantees.” She refers to the case of Yasser Murtaja, a Palestinian journalist whom NRC had contracted to document the impact of persistent violence on children’s mental health and well-being. In April 2018, the day before he was to start work with NRC, Murtaja was shot, likely by Israeli forces, while observing demonstrations in Gaza, wearing a vest marked as “press.” He died from his wounds.

Trisko Darden writes that Murtaja was an alleged member of Hamas. But these accusations surfaced only after his death and stem from unnamed sources. What we do know, having checked his name against publicly available lists of terrorist organizations and affiliated individuals, is that he was not included on any of these lists. In fact, Murtaja had previously worked for an organization in Gaza that had received funding from the U.S. Agency for International Development and therefore had to have been vetted and cleared by the agency. Meanwhile, the Israeli National Journalists Association and the International Federation of Journalists dispute the allegation of Murtaja’s Hamas affiliation and have asked for an independent investigation.

Trisko Darden raises two cases related to the aid group World Vision: one involving alleged inadvertent aid to terrorism in the form of disbursing $125,000 to the Islamic Relief Agency in Sudan, and the second involving alleged knowing support to terrorism in the case of an employee accused by the Israeli government of channeling $43 million to the military wing of Hamas. As she herself acknowledges, in the former case the organization in question was not on any publicly available list of sanctioned organizations. World Vision received approval for the payment from the Office of Foreign Assets Control of the U.S. Department of Treasury. If Treasury signed off on the grant, it’s hard to see how World Vision is culpable. In the second case, a verdict has never been rendered and an Australian government inquiry found no evidence to support the charges.

Her article is on firmer ground in raising concerns about major fraud, citing incidents such as the infiltration of a large-scale, nongovernmental organization (NGO) feeding operation by members of a designated terrorist group in northwest Syria and the significant diversion of World Food Programme food aid in Somalia. Agencies welcome a dialogue with investigators and accept appropriate sanction. The shared goal is to have risk-management systems in place to prevent major fraud and diversion, which are completely contrary to our humanitarian mission.

Punishing Terror Victims in the Name of Counter-Terrorism

Agencies accepting U.S. government funding experience significant pressure to vet their own staff as well as the senior staff and board members of sub-grantees and partner organizations. The idea of partner vetting first arose during the George W. Bush administration and has been a constant source of dialogue between government representatives and the NGO sector, with Congress occasionally weighing in. The formal U.S. government vetting process requires funding recipients to submit biographical information on individuals, which is then checked against a secret database. Humanitarian programs have been exempt from the formal partner vetting system, although the U.S. Agency for International Development just imposed formal vetting requirements in northwest Syria. As noted above, however, vetting has become routine as a risk-management tool for humanitarian organizations.

What humanitarian organizations continue to resist is any formal requirement to screen or vet individual beneficiaries of their aid programs. Agencies have procedures in place to ensure that vulnerable people benefiting from their programs are not belligerents or formally affiliated with a designated terrorist organization. In the past year, however, we have seen an increasing tendency to add clauses to agreements that de facto require the screening of vulnerable people based on arbitrary criteria.

For example, in 2018, at the instigation of the general counsel’s office of the USAID Bureau of Democracy, Conflict, and Humanitarian Assistance, the Nigeria USAID mission began inserting a standard clause obligating fund recipients to obtain written approval before providing assistance to individuals formerly affiliated with Boko Haram, including “individuals who may have been kidnapped by Boko Haram or ISIS-West Africa but held for periods of greater than six months.”

The problem with this clause is that it goes well beyond appropriate due diligence measures, instead arbitrarily stigmatizing people who have been kidnapped and held under unspeakable conditions. The victims of terrorism become subject to special checks to determine if they are ideologically clean. This is cruel. Further, “formerly affiliated” is hardly a firm standard for objective assessment and subjects the USAID funding recipient to potential legal jeopardy based on murky criteria.

Herein lies the humanitarian dilemma for countries prosecuting the war on terror. If victims of Boko Haram in Nigeria, or the Islamic State in Iraq and Syria, are suspected of terrorist affiliations simply because they lived under the control of these groups, it becomes difficult or impossible for humanitarian action to reduce their suffering and allow them to heal. In these contexts, agencies may decline to accept both the legal risk of responding and the security risk of asking questions about individuals that could subject staff to accusations of spying. The result will be victims of terrorism left to fend for themselves, or punished with terrible humanitarian consequences, which over time will create resentments and divisions in society. These approaches ultimately undermine the effectiveness of the counter-terror fight. We are already seeing this dynamic in post-ISIL Iraq.

Sharing Risk vs. Zero Tolerance

The U.S. approach to counter-terrorism has a humanitarian problem. Counter-terror measures, however appropriate and well-intended, make it more and more difficult to provide assistance to the victims of terrorism, increasing the likelihood of further suffering, alienation, and conflict.

Adopting a risk-sharing approach is a way to address this dilemma. Humanitarian agencies and their government donors need to share responsibility for reaching vulnerable people in conflict zones. On the aid agency side, this will mean greater care in assessing the landscape and the context for the work. Granular knowledge of the power dynamics and social forces within the affected communities will be fundamentally important. Identifying leaders with integrity that can lead self-help efforts will also be part of the solution. More agency staff will need the ability to conduct front-line negotiations so more vulnerable people can be assisted while reducing aid diversion. Agencies welcome the opportunity to explain and document their risk mitigation and compliance procedures to government donors. But humanitarian groups are wary of the British system endorsed by Trisko Darden of publishing risk assessments of recipient organizations, fearing that once again this places the entire compliance burden on humanitarian organizations who provide the data for such assessments.

Government donors, for their part, need to devote more time to assessing the risk–reward dynamic in a given emergency context, and then make it absolutely clear to their funding recipients what risks they are willing to accept in the name of saving lives. If donors want humanitarian outcomes from their support, they need to be willing to provide funding for compliance units, inspection teams, conflict analysts and other measures to give agencies the capacity to provide assistance in a responsible way. Without this support, “zero tolerance” becomes too great a burden for the humanitarian agencies, and they will have no choice but to decline to accept the risk involved for fear of permanent damage to their reputations. Further, government donors need to recognize that increasing human suffering through draconian counter-terror regimes undermines their avowed commitments to humanitarian action, which in turn undermines their ability to address root causes to reduce the terror threat.

This difficult moment calls for a principled and transparent dialogue between humanitarian agencies and their donors. At the very least, the humanitarian sector needs to re-affirm its commitment to principled humanitarian action and to come together to publicly defend the choices that it makes. Trisko Darden’s article makes clear how easily aid groups have allowed ourselves to be isolated and put on the defensive in the global debate over counter-terror measures and their impact. It is well past time to defend our actions and the principles and approaches that underpin them.

Joel R. Charny is the executive director of Norwegian Refugee Council USA. He has worked on humanitarian and development programs in numerous conflict-affected countries dating back to the Cambodia emergency in 1980. Since 2000 he has worked on humanitarian policy and advocacy in Washington, DC. Find him on Twitter @CharnyJ.