Analysis: Legal Roadblocks for U.S. Famine Relief to Somalia Creating Humanitarian Crisis

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Date: 
January 27, 2010

The unfolding crisis in Somalia illustrates a common dilemma U.S. nonprofits face when trying to conduct humanitarian operations in territory controlled by an organization listed as a Specially Designated Global Terrorist (SDGT). The humanitarian imperative to provide urgently needed food to nearly one million people in an area controlled by al-Shabab, a listed SDGT, conflicts with the “strict liability” standard against supporting terrorists that even has State Department employees fearing sanctions from Treasury. Now the United States government (USG) response to the famine in Somalia is forcing it to confront the same onerous hurdles current national security laws create for nonprofits.   

The Crisis in Somalia
 
The Office of the United Nations High Commissioner for Refugees (UNHCR) calls Somalia “one of the worst humanitarian crises in the world.” Years of internal strife and widespread drought have left millions of Somalis dependent on food aid every month, and nearly 71 percent of the Somali population suffer from under-nourishment, according to UN reports.

A country without a central government, Somalia has experienced 19 years of continuous internal conflict that has resulted in the deaths of up to one million people and left at least 1.5 million people internally displaced. Its southern provinces are under the control of al-Shabab, a terrorist group whose December 2009 attacks on humanitarian aid agencies and demands for payments forced the UN’s World Food Programme (WFP) to suspend food distribution there.  Before being forced out, the WFP had planned on feeding nearly 2.8 million Somalis (nearly 40 percent of the entire Somali population). Now at least one million Somalis trapped in areas controlled by al-Shabab are at risk for starvation. 

The United States is the largest contributor to the WFP. According to the United States Agency for International Development Assistance (USAID), between February 2007 and March 2008, “over $319 million in assistance was provided by USAID through international and local nongovernmental organizations and United Nations agencies.” 

The Legal Dilemma

With nearly three million people at risk of starvation in Somalia, the urgent need for foreign aid is apparent. However, at least $50 million worth of American aid to Somalia, through USAID and the Office of Foreign Disaster Assistance (OFDA), is being held up in part because of State Department concerns about facing prosecution from Treasury for inadvertent capture or use of humanitarian aid by al-Shabab. Russell Brooks, a spokesman at the State Department, said, "It is true that some humanitarian funding was placed on hold, pending resolution of the OFAC (Treasury Department’s Office of Foreign Assets Control) issue."  According to an August 2009 report from the UN Office for the Coordination of Humanitarian Affairs (OCHA), “the delay in reaching a decision on humanitarian funding for Somalia by the US government is already impacting many agencies and their programmes, creating a planning challenge.”

Current law prohibits any contact with a listed terrorist group, regardless of intent, making distribution of food to hungry people living in regions controlled by such groups nearly impossible. The humanitarian exemption to the prohibition against providing material support to terrorists only extends to medicine and religious materials. 

Interaction with a listed group, however, is sometimes unavoidable. During Sri Lanka’s civil war, the Liberation Tigers of Tamil Eelam (LTTE) “established an extensive network of checkpoints” restricting who entered or left their territory. After the 2004 tsunami left hundreds of thousand on the island in need, humanitarian groups found it nearly impossible to deliver aid to the refugees without some contact with the LTTE. 
 
In Somalia al-Shabab has reportedly made matters worse by requiring nonprofits to pay monthly "security" fees as part of permission to operate in areas they control. Peter Smerdon, a spokesman for WFP, said, “in November, Shabab gave us a list of 11 conditions for aid agencies to meet, including removing women from jobs in aid work. They also made a demand for payment of $20,000 over six months for security.”  The New York Times reported that “United Nations officials say they have no choice but to work with local Shabab commanders to distribute critically needed aid, like 110-pound bags of sorghum, tins of vegetable oil, plastic sheeting and medical supplies, in Shabab-controlled areas.” 

The dilemma this creates in a humanitarian crisis is so severe that in the fall of 2009, according to the New York Times, the State Department sought “confirmation that OFAC (Treasury) will not seek enforcement action against United States government employees, grantees and contractors” if, “accidental, unintentional or incidental benefits” goes to al-Shabab. Treasury responded by saying any transactions with al-Shabab “were prohibited, but that it would not prosecute American aid officials if they acted in 'good faith.'”

Fear of incidental benefits to some members of listed groups should not prevent the delivery of vital aid to those in need.   For instance, if lives are saved because a U.S. nonprofit digs a well for a Somali village, the fact that one al- Shabab member gets a drink of water should not deny this critical resource to the entire village. To do otherwise is to impose collective punishment on the victims, a clear violation of human rights standards
 
More Barriers to Aid
 
The UN is apparently also grappling with the problem, and has drafted its own set of conditions for contractors delivering aid. In late 2009 the UN and U.S. were at an impasse over what the language should be, but no agreement was reached after the U.S. did not respond to the UN's proposed substitute.
 
The Charity and Security Network has also learned that USAID began drafting new conditions to apply to grants from OFDA to nonprofit grantees in the fall of 2009, and further changes are expected in February. USAID has not responded to our request for a copy of the new conditions. However, they are said to include enhanced due diligence practices to avoid benefitting al-Shabab and an agreement to report any incidental benefit to USAID.

Since such inadvertent or incidental benefits could result in criminal prosecution of the nonprofit, this condition puts nonprofits in an untenable position. However, if Treasury's extended its reported new policy not to prosecute government officials who act in “good faith” while operating in areas controlled by a SDGT to nonprofits, the reporting requirement for incidental benefit would be more sensible and the humanitarian imperative could be better met. Instead, nonprofits are now apparently forced to choose between signing objectionable agreements in order to continue operations, or close down vital operations.

Additionally, politically charged agreements between relief groups and the U.S. government would undermine the fragile neutrality humanitarian aid groups have in Somalia. The U.S. government is viewed unfavorably by many in Somalia, and anything that weakened the wall of political impartiality between aid groups and the USG will only increase Somali suspicion toward aid groups and make the environment more precarious for relief workers.
 
It is unknown if any formal agreements have been finalized between the different agencies. The discussions surrounding these issues are taking place behind closed doors, with limited involvement from nonprofits. This lack of transparency prevents U.S. nonprofits from contributing their expertise and experience to the discussion. U.S. nonprofits share the same concerns about aid inadvertently falling into the hands of terrorists and are dedicated to the mission of saving lives.