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Q&A;: Humanitarian engagement with ISIS-appointed leaders and the U.S. material support statute

How are NGOs expected to engage with local leaders in areas controlled by ISIS in northern Syria when the local leaders are all ISIS appointees or members? My understanding is that legal requirements prohibit people from engaging with terrorists. Should we cease operations and leave the people most in need of assistance without help?

Coordinator for the Syria response, INGO, Syria

 

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This note is informational purposes only and not for the purpose of providing legal advice. You should always seek advice from an appropriately qualified legal professional on any specific legal enquiry.

Answers

Guest Expert's picture
Guest Expert
13 February 2015

Note: The responder has chosen to have the response to this question available only to members of PHAP.

This is a good question, but a scenario under U.S. law that sometimes gets blown out of proportion. The U.S. statute on “providing material support to terrorists” (18 USC 2339A and 2339B) prohibits the provision of “material support” to terrorists, which include:

  1. property, tangible or intangible
  2. service, including currency or monetary instruments or financial securities
  3. financial services
  4. lodging
  5. training (instruction or teaching designed to impart a specific skill, as opposed to general knowledge)
  6. expert advice or assistance (advice or assistance derived from scientific, technical or other specialized knowledge)
  7. safehouses
  8. false documentation or identification
  9. communications equipment 
  10. facilities
  11. weapons
  12. lethal substances
  13. explosives
  14. personnel (1 or more individuals who may be or include oneself)
  15. transportation

The material support statute does not prohibit communication with terrorists per se, although there is a public relations risk here. So legally, your personnel may engage in dialogue with local Syrian leaders that serve ISIS to negotiate terms of access to civilians (time, items, location, etc.), but if those leaders seek anything material in exchange for access, the negotiation has to end there. In Somalia, NGO actors were permitted to dialogue with al-Shabaab about access to innocent civilians, but the moment al-Shabaab members sought anything in exchange for granting such access the dialogue ended. The same applies in Syria. One other note about the material support statute to watch carefully – it explicitly permits the provision of medicine and religious materials to terrorists, but beware of prohibitions against the provision of medicines under other U.S. authorities like OFAC, BIS or Congressional statutes. Specifically, under the BIS regulations, (i) exporting or re-exporting certain U.S.-origin medicines (ii) to such terrorist end-users would be a violation of the Export Administration Regulations without a BIS license.

 

About the author
The author is a legal counsel with a large international NGO