Condemned to resist

PHAP member articles are written by members of the association in their personal capacity. The views expressed belong solely to the author and do not necessarily reflect the views of PHAP or any other organizations with which the author is associated.
10 February 2014

Co-authors: Andres Romero & Mary Vonckx

The objective of medical humanitarian action is to alleviate the suffering of people who are the direct victims of violence or otherwise neglected, discriminated against, or targeted by political power, whether in the form of a government or other authorities such as rebel groups. In conflict settings, the practical reality of carrying out this work and providing aid on the basis of need requires engagement with a variety of parties – be they armed groups, governmental authorities, or community leaders. To cross front lines and operate hospitals in active conflict zones, medical humanitarian aid workers need to be accepted and their motives clearly understood. At the core of this action is ensuring that aid reaches the intended beneficiaries and does not exacerbate the suffering of people trapped in violent conflicts.

In the Syrian conflict, Doctors Without Borders/ Médecins Sans Frontières (MSF) strives to deliver aid through constant negotiations with a spectrum of rebel groups, Syrian government officials, smugglers, and community leaders. In Afghanistan, carrying out medical humanitarian aid operations today entails engagement with the Taliban opposition, the U.S. military, other International Security Assistance Forces (ISAF), and the Karzai government. This reality is in tension with a legal and regulatory framework developed in the post-9/11 era, which is designed to stop the flow of resources to organizations or individuals designated as “terrorist.”

States throughout Asia, Europe, and the Middle East, as well as countries in Africa, such as Kenya, are in the process of adopting increasingly stringent counterterrorist frameworks. But the United States has been at the forefront of these efforts and sets the template for counterterrorist rules abroad. U.S. criminal law prohibits anyone – whether or not a U.S. national – from engaging in a wide range of activities that may result in material support to designated “terrorist” entities, exempting only medicine or religious materials.

In recent years, U.S. aid organizations have voiced growing concerns over the possible consequences of running afoul of opaquely written counterterrorism measures. As an international humanitarian medical organization intervening in many regions targeted by such measures, MSF directly confronts two important questions: First, does the counterterrorism framework prevent us from assisting populations in need? Second, recognizing that traceability of aid is an imperative for humanitarian agencies with or without counterterrorism rules in place, how can we demonstrate that the medical aid we provide primarily reaches its intended beneficiaries?

Reflecting on the last forty years of delivering assistance in conflicts or unstable settings, it is difficult for MSF to establish a tangible correlation between the post-9/11 counterterrorism regimes and the recurring obstacles we face when trying to reach the most vulnerable and needy populations. Although it is undeniable that counterterrorism, as it stands today, forces aid organizations to navigate an increasing number of administrative and legal hurdles, in MSF’s experience, these are not an immediate barrier to action. Rather, it is the daily consideration of risk versus benefit in providing impartial care that drives our operational decisions, responsibilities, and ability to work. For our organization, the biggest challenge posed by the counterterrorism framework lies not in the potential liability it creates, but in its intrinsic contradiction with the core humanitarian principles of independence and impartiality of aid.

 

Counterterrorism: The looming threat over humanitarian aid

In MSF’s recent history, no decision to halt or redirect medical operations has been influenced by counterterrorism restrictions. Our withdrawal from Darfur in 2009 was triggered by an expulsion order from President Omar Hassan al-Bashir at a time when MSF was operating with a license from the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), a requirement for conducting humanitarian work in certain countries, including Sudan. While some drastic re-orientations of our programs have occurred in the past few years in sensitive locations like Iran, Somalia, or Gaza, they have not come as a result of considerations linked to counterterrorism. The main driver for our interventions is our ability to respond effectively to medical needs in a given area. Direct obstacles to humanitarian aid in conflict zones are more often due to localized security threats from factions at war or lack of funding than they are due to prevailing sanctions.

Somalia is a case in point. During the summer of 2011, with tens of thousands of Somalis facing starvation, the U.S. Treasury Department issued reassurances that humanitarian organizations operating in al-Shabaab-controlled areas would not be a priority target of OFAC enforcement, despite the acknowledged possibility that in the “dangerous and highly unstable environment combined with urgent humanitarian needs in south and central Somalia”,1 some of the food and/ or medicine delivered could end up in the hands of al-Shabaab members. These statements came in response to public appeals by some U.S. aid organizations, expressing their reluctance to intervene in the crisis in the absence of further legal clarity and licensing for humanitarian activities.2 Yet despite the reassurances, there was no subsequent influx of organizations or significant scale-up of activities to assist Somalis in need. The reality is that, even without any restrictions on aid delivery, only a few organizations have the capacity and willingness to accept the risks implicit in a country as politically explosive as Somalia; even fewer would seek to access al-Shabaab-controlled areas.

The same is true for Mali and surrounding territories, where the presence of Al Qaeda in the Maghreb (AQIM) militants discouraged many foreign organizations from approaching the front lines even before the State Department designated the AQIM-linked group Ansar al-Dine as a "Foreign Terrorist Organization."3 Similarly, it is the deadly combination of security risks and insufficient funding, not the obstacles created by counterterrorism efforts, which contributes to the unacceptably meager level of assistance for millions of people inside Syria today.

While limited to date in their direct impact on beneficiaries and at the point of care, counterterrorism regimes have nonetheless provoked a “chilling effect” on humanitarian assistance. The bureaucratic obstacles generated by the U.S. counterterrorism framework have become a reality for all U.S. aid organizations, even more so if they are Muslim. Counterterrorist restrictions also impact bank transactions, insurance coverage, and international trade, and while not designed to constrain humanitarian action per se, they create a risk-averse business climate that slows the deployment of supplies and aid workers. Recently, two United States based pharmaceutical manufacturers refused to complete orders for urgently needed drugs for MSF’s programs in Sudan, Syria, and Libya, despite specific licenses from OFAC for MSF’s Sudan programs and general humanitarian licenses for Libya and Syria.

American Muslim organizations have borne the most dramatic consequences of counterterrorism restrictions. Since 2001, based on information provided by researchers at Harvard University, fifteen United States based organizations (all Muslim, and about two thirds engaged in humanitarian relief) have had their assets blocked pending investigation and some ultimately had to shut down. Muslim faith-based organizations also report delays and bureaucratic obstacles with OFAC application processes, which we in MSF have not experienced to date when applying for a license. For example, Islamic Relief USA had to suspend projects in Gaza until their license to work in the region is renewed. At the time of writing, their application remains pending. While the fear of prosecution among Muslim organizations seems well founded in light of their own experiences, there is no indication that other United States based humanitarian agencies have been a specific target of OFAC enforcement. Since its re-enforcement following 9/11, counterterrorism has in general not been a direct barrier to humanitarian assistance but has rather been a looming threat hanging above the heads of aid workers.

 

Sanction regimes and international humanitarian law: Oil and water mingle

The tension between international humanitarian law (IHL) and national security laws has always existed, as states have sought to reconcile the humanitarian imperative with their legitimate right to deprive their enemies of the means to attack or retaliate. A principle of IHL is to protect relief agencies that provide medical care to wounded fighters of all sides. However, Executive Order 13224, signed by President George W. Bush in 2001 as part of a series of policies intended to prevent and combat “terrorist” activity and “terrorist” financing, states that “no charitable contribution or donation of funds, goods, services, or technology to relieve human suffering, such as food, clothing or medicine, may be made to or for the benefit of a specially designated terrorist.” This order challenges the fundamental principle that aid must be impartial.

The interpretation of the material support statute staked out by the U.S. Supreme Court in 2010 further exacerbates the tension between IHL and counterterrorism. In Holder v. Humanitarian Law Project, the Supreme Court reduced the actions one could take vis-à-vis suspected terrorists to the provision of medicine or religious material, while broadly defining the term material support: “[T]he term ‘material support or resources’ means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (one or more individuals who may be or include oneself), and transportation, except medicine or religious materials.” This broad definition begs the question as to whether law and policy makers have a clear understanding of the nature of humanitarian assistance and the conditions under which aid is delivered.

The principle of impartiality, defined as the provision of assistance based solely on greatest need rather than affiliation, is an essential component of our ability to gain acceptance and ensure safe space for medical workers and patients.

Recently, in Mali, our organization re-established access to health care in Timbuktu, where health facilities had collapsed after Islamist groups took over the city. For more than a year, our presence was accepted and facilitated by Islamist groups controlling the area. Following the French, Malian, and African-led International Support Mission to Mali (AFISMA) interventions, this territory was subsequently regained by the Malian army. While the balance of power shifted as a result, the hospital continued to serve the population with the support of MSF teams and the understanding of the new powers in charge.

Timbuktu is emblematic of the need for impartial care as front lines shift and belligerents lose or gain control over new territories. If one of our Syrian hospitals currently located in a rebel-controlled area would end up being located in government-held territory, the medical needs of civilians would remain unchanged, and our medical support would be as valuable for them as it is today. Deliberately limiting our action to one so-called “legitimate” camp increases the risk that we will exclude the very groups who may be most in need of life-saving assistance. It likewise increases the risk that we will be perceived as supporting one side over the other, turning us into a potential target for attacks.

For a humanitarian organization seeking to preserve its impartiality, the designation of “terrorist” is nothing more than a political label made by one faction or state against another. We all know that today’s enemy may become tomorrow’s ally, and vice versa. In 2009 in Somalia, Sharif Sheikh Ahmed went from being a member of the vilified Islamic Courts Union to Head of State with the full support of the international community, within only a few days. In the same vein, the Revolutionary Armed Forces of Colombia (FARC) are considered a Terrorist Organization by the United States and European Union while the government of Colombia participates in a peace dialogue process with them that may well lead to their recognition as a legitimate political body in the near future. Ironically, the Free Syrian Army (FSA) is simultaneously considered a terrorist organization by Syrian President Bashar al-Assad and an ally of the United States and other major powers. In this loaded political landscape where history repeats itself with equal amounts of cynicism and suffering, humanitarian workers must continue to resist, claim their neutrality, distance themselves in space and time from the political designation of enemies, and –while ensuring that aid does not fuel the existing conflict – choose to express their solidarity with those most in need.

More practically, it is a mistake to think that resources deployed for humanitarian assistance will never directly or indirectly, knowingly or not, benefit a larger community than our primary cohort of patients, including potential targets of counterterrorism efforts or individuals associated with banned political activity. The fact that Executive Order 13224 does not apply in cases where the support was given “without knowledge or reason to know that the donation or contribution is destined to or for the benefit of a specially designated terrorist” does not make delivery of aid more feasible.

In fact, the current Material Support Statute, by solely authorizing the distribution of drugs, prohibits many acts that are essential to perform humanitarian activities. Each patient receiving his medicine or therapeutic food stands at the end of a long string of prior transactions: paying customs taxes, renting vehicles and facilities to transport and store cargo, training and compensating staff. In emergency situations where the aid response may be insufficient, MSF also provides clean water and non-food items (NFI) in order to contain and control morbidity and mortality. Those activities go beyond our main medical action but are essential elements to ensure the basic health of a population.

Although regarded within the counterterrorism framework as one of the most protected humanitarian activities, delivering medical care can be as challenging as providing other relief activities. Medical care involves far more than an injection; a burn patient or a war-wounded combatant may require counseling and physiotherapy for weeks. A health facility may have to subsidize food or transportation costs incurred by the patient’s referral. Our medical staff will spend their days and nights with these patients. In addition to providing care, the teams must actively ensure unconditional respect for our “no weapons” policy in health facilities. As they negotiate the security of patients and organize the continuum of care with relatives or accompanying parties, they can only guess who is a combatant and who is not, and on which side of the battle their patient stands.

By ruling out essential transactions necessary to complete the medical act, U.S. counterterrorism laws and regulations reduce medical care to the administration of a drug to the patient. They also fail to acknowledge that in order to remain impartial, our response should be focused on the medical needs and not be based on what counterterrorism defines as a legitimate target for donations. The U.S. government is well aware of the inherent contradiction between its national security laws and this IHL principle. When it indicated at the peak of the 2011 nutritional crisis in Somalia that OFAC’s enforcement focus would not be on humanitarian activity, it effectively admitted to the potential incompatibility of counterterrorism measures with aid operations.

 

From liability to responsibility

These growing tensions between the humanitarian imperative and the fight against terrorism may appear insurmountable for aid organizations, but they need not be. The possibility of aid diversion has come hand-in-hand with our work since the early days of humanitarian action, and should remain a permanent concern when determining whether to deliver assistance, with or without counterterrorism provisions in place.

In the face of security risks, each organization applies its own rules, establishes its own thresholds, and remains fully responsible for its own choices when trying to determine the scope and limits of its intervention. For MSF, this decision is usually a result of carefully weighing the risk exposure for staff and patients against the benefit of assistance provided to the population. A similar sense of proportion is required when assessing the risk that aid may be diverted: maximizing our reach and minimizing the risk of diversion.

Recent research conducted by MSF finds that acceptance for the presence of relief workers is frequently motivated by an expectation of economic or political gain for the parties involved, seeing an opportunity to either boost the local economy or their own prestige, or to provide social services to communities under their control.4 Antonio Donini’s latest publication, The Golden Fleece, also confirms this, while reminding us that instrumentalization of aid has existed for decades.5 From Afghanistan to Nigeria, from Somalia to Syria, our ability to work has always resulted from a negotiation whose outcome varied according to the mutual interests and appreciation of risk by the parties involved. When our presence is unlikely to serve a broader strategic agenda, and can even hamper it, as was the case in Waziristan, Pakistan, during the 2011 offensive by the Pakistani army, we are simply not allowed to reach people in need.

This is to say that manipulation of aid is as old as humanitarian action itself, and forms part of the war tactic aimed at neutralizing an enemy’s capacity to attack, resist aggression, or expand its influence. The United States itself has repeatedly used aid as an instrument of war, notably through the implementation of the “hearts and minds” tactics of the counterinsurgency policy. It is reasonable to suspect that humanitarian aid might be co-opted whenever it may serve a political agenda.

Once this unavoidable risk of co-option is acknowledged, the real question is the extent to which our actions primarily serve the population’s interest rather than the belligerents’. Our responsibility is, undoubtedly, to exercise maximum scrutiny to ensure that the vast majority of aid reaches those most in need, and does not contribute to a balance of power that could extend the suffering of the same civilians we aim to support. This obligation applies equally in contexts that are not affected by counterterrorism regimes. In 2008, MSF teams identified a sophisticated fraud organized by some of our national staff in the Central African Republic. This case led to a series of internal enforcement measures aimed at preventing such schemes in the future while preserving our medical operations. These kinds of challenges are integral to the risks that humanitarian organizations face and need to address.

Today, those of us in the aid field are frequently asked by donors and beneficiaries alike about our impact on the broader crises. Not only are these concerns legitimate, but they also give us an opportunity to demonstrate our ethics and critical contribution to reducing the human cost during crises, which in turn can serve to maintain (or if necessary, restore) confidence among donors. We cannot simply claim increased transparency. We must fully demonstrate that we are able to track the end destination of aid, that we have control over operational choices, and that we have the ability to judge and decide when to start, re-orient, or cease activities. We must also account for the outcome of our interventions. This necessitates levels of control and accountability mechanisms that can be challenging, especially when working through secondary partnerships.

A large number of programs in politically sensitive areas affected by counterterrorism laws have, over the years, been delegated to local organizations funded by international NGOs. This has often been done for legitimate reasons, including to ensure greater local capacity building or to overcome security constraints. In recent years, MSF has likewise delegated greater control over project management to our national staff in politically sensitive locations where the presence of international personnel was considered too risky or prohibited by local authorities. The so called “remote control” management model, an operational set-up in which a team of national staff are managed and overseen from outside the country or region, poses numerous challenges and has generated heated debates within MSF.

One step further was recently taken in Syria, where our organization decided to support local networks of Syrian medical staff. Without doubt, our ability to support 56 health facilities in areas MSF cannot penetrate is of tremendous value for the Syrian population. In this model, however, non-MSF health staff assume all the risks for providing assistance to their compatriots, and the level of scrutiny that MSF is able to exercise is far less satisfactory than in the health structures run by our own Syrian and international personnel. For these reasons, we choose to apply this type of set up as a last resort in exceptional circumstances. We know from experience that direct assistance to beneficiaries is a key element and unique guarantee for the effective delivery of quality humanitarian assistance in complex environments. The debate over counterterrorism helps us realize that while it poses a number of programmatic, logistical, and cultural challenges, our direct presence on the ground remains one of the most meaningful ways of ensuring accountability for our actions and of exerting our independent judgment. It is also a means to take responsibility for our programs and for the security of our colleagues, respond effectively, track aid on the ground, and avoid transferring the full liability to our local partners.

 

Concluding remarks

Humanitarian groups and parties at war are condemned to co-exist, and aid organizations must continue to navigate and carve out space within the evolving counterterrorism framework. From a strict operational perspective, only Islamic groups – which continue to be a major target of national security law enforcement – have so far experienced significant blockages due to counterterrorism. For others, insecurity and lack of funding have proved to be the main obstacles to reaching populations in need.

Therefore, our response to counterterrorism policies cannot be limited to a legal battle designed to reduce NGOs' liability by seeking specific exemptions for our work. It should also address the symbolic weight that these measures carry. We, as aid workers, need to reframe the debate and defend our ability to provide care with impartiality. We cannot accept orders regarding who to care for based on political or security considerations. Needs, and needs alone, should continue to drive our response.

Our responsibility, however, is to demonstrate that we have firm control over our actions and that aid diversion, if it occurs, accounts for a negligible part of our support. We must claim autonomy and responsibility for choosing when and how to bring relief and when to surrender in the face of insurmountable obstacles. In the end, valuing our responsibility over our liability in the delivery of aid will serve multiple objectives: more lives saved, greater vigilance regarding the destination of aid, and improved accountability toward donors, authorities, and beneficiaries.

 

 

 

About the authors

Sophie Delaunay is executive director of Doctors Without Borders/ Médecins Sans Frontières (MSF) in the United States. She first became involved with the organization in 1993 in administrative and finance roles, then worked extensively in program management both in the field and at headquarters. Sophie has worked on MSF projects in Thailand, Rwanda, China, and Korea, as well as in the French and U.S. offices. She also conducted in-depth evaluations of MSF programs in Liberia, Darfur, Central African Republic, China, and Syria. Besides her MSF work, Sophie worked for three years as Program Director in ESTHER, a French government AIDS agency, where she supervised the organization's programs in 18 countries. She holds a master's degree in International Business from Le Havre University in France, and a master’s degree in Political Science from Yonsei University in Korea. She has contributed to multiple publications, including a book about North Korean asylum seekers.

Andres Romero is Operational Advocacy Advisor with MSF-USA.

Mary Vonckx is Grants Officer with MSF-USA.

 

Notes

1 U.S. Department of State (4 August 2011), "Frequently Asked Questions Regarding Private Relief Efforts in Somalia."
2 Konyndynk, Jeremy (7 July 2011), “Will the U.S. Stand By As Famine Looms in Somalia?” Huffington Post; Rupp, George (28 July 2011), “7 Ways the U.S. Can Fight Drought in Africa,” Huffington Post.
3 U.S. Department of State (21 March 2013), "Terrorist Designations of Ansar al-Dine."
4 Magone, Claire, Michael Neuman, and Fabrice Weissman, eds. (2011), Humanitarian Negotiations Revealed, Columbia University Press. The book is also accessible online.
5 Donini, Antonio (2012), The Golden Fleece: Manipulation and Independence in Humanitarian Action, Kumarian Press.