US Secretary of State Hillary Clinton has repeatedly appealed to Al-Shabab to allow food aid into famine-affected parts of Somalia under its control. But, were the militant group to acquiesce, US aid workers fear they could risk legal action if they were part of the humanitarian operation.
Al-Shabab is classified as a terrorist organization by the US government and contact with the group could lead to sanctions, including 15 years’ imprisonment.
However, in July, the US said a new expanded licence issued by the Office of Foreign Assets Control (OFAC), which enforces and administers economic sanctions for the government, would protect NGOs from legal action under the anti-terrorism laws – albeit only those dependent solely on US government grants.
Jeremy Konyndyk, director of policy and advocacy with Mercy Corps, said a group of NGOs took the next step of submitting an application for a blanket licence from OFAC to operate in Somalia, which would protect them from prosecution even if part of their funding came from a non-government source.
“After a month-and-a-half, we still have received no firm answer to this request,” Konyndyk said.
Some headway is being made. Hilary Renner, of the US State Department, said it had recently decided to extend licence coverage to NGOs that not only depend on US government funding, but also money raised privately.
“By doing so, we ensure that these additional activities, undertaken pursuant to a USAID grant, but funded at least in part by other donors, fall under the umbrella of US foreign assistance activities and are covered by the OFAC licence issued to USAID,” Renner told IRIN.
However, it is not yet a done deal. “USAID has informed a number of its partners that it would review proposals to incorporate non-US funded activities within the terms of a grant,” Renner added.
Why US aid matters
The US is the world’s largest aid donor. Until 2008, NGOs from the US or supported by the US formed a substantial portion of the humanitarian presence in Somalia.
That year, the US was Somalia’s biggest donor, giving more than US$237 million. In the same year, Al-Shabab was designated as a terrorist organization and blacklisted by the US government; the insurgency, which controls much of south-central Somalia, began clamping down on aid agencies.
|Two months on from the relaxation of the restrictions in July – I am not aware of a single NGO that has yet been able to obtain legal protection through either mechanism|
In 2009, US financial support for humanitarian activities dropped to about $99 million. Kay Guinane, a US public interest attorney and director of the Charity and Security Network, said in a briefing, 60 percent of Somalis needing assistance lived in areas occupied or controlled by Al-Shabab, exactly where US aid workers cannot go under the law, which prohibits “material support” to a listed terrorist group, “regardless of the intent”.
“The material support law [which falls under the Anti-Terrorism and Effective Death Penalty Act in 1996] has been modified repeatedly over the past decade, and is now so broad that it imposes unintended constraints on legitimate humanitarian assistance efforts,” Patrick Leahy, Democrat Senator, told the US Senate Committee on Judiciary on 21 September, calling for reforms.
The definition of “material support” only offers a humanitarian exemption for medicines and religious texts but not for essentials like water or food. It 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 … and transportation.
Intimidating aid workers
In the past three years Al-Shabab has obstructed aid workers, forcing many to close down – several incidents of attempted extortion, kidnapping, killing and bombings targeting aid workers have been recorded, according to the recent UN Monitoring report on Somalia. In 2009, 10 aid workers were killed and at least 10 were held in captivity in 2010.
Between September 2008 and October 2010, 18 humanitarian aid agencies were expelled from south-central Somalia, typically accused of receiving US funding or promoting Christianity. In 2010, these included Mercy Corps, World Vision and the USAID-funded Famine Early Warning Systems Network (FEWS-NET). The UN World Food Programme (WFP) suspended its operations in the south when one of its warehouses was ransacked and its food stocks burnt.
The International Committee of the Red Cross is one of the few aid agencies publicly operating in the country’s south and south-central regions.
As the drought escalated, NGOs began lobbying for more clarity on the “material support” law. Days after the UN declared a famine in parts of Somalia in July 2011, the US government said it was easing restrictions.
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Further lobbying and clarification led to the US government saying that any NGO could work in Somalia without a licence from OFAC. But as NGOs understood it, this was only guidance issued by the Treasury and not backed by any legal guarantee from the Justice Department that they would not be prosecuted.
According to Mercy Corps’ Konyndyk, when the NGOs met the government: “The US Government proposed two paths: either apply for and win US funding for your programmes and obtain legal protection that way; or go into insecure areas with your own funding first and then try to get a specific OFAC licence for your individual agency.” This, the NGOs fear, leaves them vulnerable to the anti-terrorism laws.
However, Renner said: “Several NGOs have requested that USAID modify their existing awards to include their non-US-funded activities. Some other NGOs have requested new awards that include both USAID and non-US funded activities. The approval process will vary for each group based on a number of factors, including discussions of safeguards and reporting requirements with respect to diversion incidents [should aid or NGO resources end up in Al-Shabab’s hands].”
“This [government assurances] is simply not enough,” said Konyndyk. “Not every NGO will obtain US government funding, and it is unreasonable to tell NGOs working with non-US government funds to set up risky operations without knowing whether or not they will be able to obtain a licence. NGOs have been working to test these two paths and to date – two months on from the relaxation of the restrictions in July – I am not aware of a single NGO that has yet been able to obtain legal protection through either mechanism.”
A lot of NGOs’ concerns stem from a Supreme Court ruling in 2010 which upheld a broad interpretation of the “material support” law in a challenge brought by an NGO.
Leahy took up the aid agencies’ concerns with the US Attorney-General’s Office in August. In his response, Ronald Weich, the Assistant Attorney-General assured that counter-terrorism laws would be enforced “in a manner that does not inadvertently impede the legitimate and important disaster relief”.
But that is not good enough, say the NGOs. “Multiple senior US officials have made statements telling NGOs not to fear prosecution, up to and including the Secretary of State and the USAID administrator,” said Konyndyk. “All we are asking is that the USG turn its rhetoric into something tangible.”
A way out would be to provide “a general OFAC licence applicable to responsible, accountable NGOs that would clarify in advance what the rules are and which restrictions are waived”, said Konyndyk. In early August, he said a group of NGOs submitted an application for a general OFAC licence, as acknowledged by Renner, but no answer had yet been given.