Abstract: Understanding Humanitarian Exemptions

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Date: 
May 11, 2016
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Principled humanitarian action can be restricted by sanctions in regimes in a number of ways, notably via UN sanctions programs and state-level laws criminalizing the provision of material support of terrorism. When humanitarian organizations need to pay taxes, registration fees or checkpoint fees to access populations in need, they may run afoul of these laws if they are paid to a terrorist organization or its affiliate. Other humanitarian aid activities that potentially violate counterterrorism provisions include visits to detainees, first aid training and provision of assistance, just to name a few.

The term “humanitarian exemption” can relate to two different concepts, as described in a new briefing paper by the Harvard Law School Program on International Law and Armed Conflict, Understanding Humanitarian Exemptions: UN Security Council Sanctions and Principled Humanitarian Action. These exemptions can apply to listed individuals who need humanitarian assistance or to humanitarian organizations and actors. The latter allows these actors to “deliver their services without the risk of contravening those regimes,” the paper explains.

Proponents of the exemption note that due diligence procedures by humanitarian actors minimizes the possibility of diversion and any incidental benefit to proscribed individuals is outweighed by the alleviation of human suffering provided by the principled humanitarian action. There are, however, arguments opposing exemptions, such as that they jeopardize national security.

Exemptions vary widely in scope and application. International exemptions can prove problematic if not codified in national laws, and domestic exemptions tend to be narrowly constructed or are spelled out in guidance without the force of law. The briefing paper suggests an omnibus exemption that would be permanent, all-purpose and sector-wide. An example of a broad exemption that would be built in to existing law is the proposed U.S. bill, the Humanitarian Assistance and Peacebuilding Protection Act. The paper goes on to outline protections that could be built into an exemption to ensure it is not abused.

Read the full paper here.