Counterterrorism Regulations and Humanitarian Access to the Famine in Somalia

The historic drought and the resulting 12.4 million people in need of urgent humanitarian assistance in the Horn of Africa received increased press attention in late July upon the announcement of a famine in two areas of Somalia. (Since then, a famine has been said to exist in three more areas of Somalia.) As detailed in congressional testimony last week, obtaining access to deliver humanitarian aid to those most in need in Somalia is extraordinarily challenging, not least because of the rampant insecurity stemming from the ongoing armed conflict between the UN-backed Transitional Federal Government (TFG) and armed opposition groups. One such group in particular, the Shabaab, controls a large portion of territory in southern Somalia, and has imposed “taxes” or “access fees" on, expelled, and killed members of humanitarian organizations in recent years.

Considering the Shabaab to be a terrorist organization, a range of states has enacted domestic laws to curb support for the group, even if such "support" is indirect and provided solely with an aim of alleviating the suffering of civilians in need. At the United Nations, the Shabaab and some of its members have been listed in relation to the Somalia and Eritrea sanctions regime. In the United States, the Shabaab is listed as a Foreign Terrorist Organization (meaning that providing “material support or resources” to the organization is a federal crime punishable by up to 15 years in prison), and the group and some of its members are also listed as Specially Designated Nationals (meaning that U.S. persons and entities dealing with them must comply with relevant Treasury Department regulations or face criminal or civil penalties up to 20 years in prison). This web of laws and policies regulating engagement with the Shabaab presents a challenge to humanitarian organizations seeking access to those most in need in areas under the group’s de facto control.

Last week, press headlines declared “U.S. eases aid restrictions amid Somalia famine” and “State department reassures groups aiding Somalia in food crises.” Yet important restrictions, which may have eluded reporters, remain in place. The Office of Foreign Assets Control (OFAC) issued a document entitled “Frequently Asked Questions Regarding Private Relief Efforts in Somalia,” which read in part:

3.  What if, in delivering humanitarian assistance, my organization unintentionally provides food or medicine to members of al-Shabaab?

Due to the dangerous and highly unstable environment combined with urgent humanitarian needs in south and central Somalia, some food and/or medicine delivered in these areas may end up in the hands of al-Shabaab members.  Such incidental benefits are not a focus for OFAC sanctions enforcement.

The legal significance of this new apparent policy guidance is far from clear, including to what extent being a "focus" or not for OFAC sanctions enforcement is legally relevant. In any event, to date this publicly available guidance appears to apply only to the State Department and USAID, as well as their grantees and contractors, and would therefore appear not to apply to humanitarian organizations that are not State Department or USAID contractors or grantees, such as many European or other privately funded organizations. The extent, if any, to which general or specific waivers (which are allowed under the regulations) will be issued to the full range of humanitarian organizations seeking to provide humanitarian relief in areas under the Shabaab’s de facto control remains difficult to discern from publicly available information.

Perhaps most importantly in this context, the material-support-or-resources statute, which makes it a crime punishable by up to 15 years in prison to provide “any property, tangible or intangible, or service (…) except medicine or religious materials” to the Shabaab, remains fully in force.  

Complicating the picture further is the limited humanitarian exemption contained in relevant Security Council resolutions decided under Chapter VII of the UN Charter, which UN member states must carry out. In Resolution 1916 (2010), the Council: 

5.  Decides that for a period of twelve months from the date of this resolution, and without prejudice to humanitarian assistance programmes conducted elsewhere, the obligations imposed on Member States in paragraph 3 of resolution 1844 (2008) shall not apply to the payment of funds, other financial assets or economic resources necessary to ensure the timely delivery of urgently needed humanitarian assistance in Somalia, by the United Nations, its specialized agencies or programmes, humanitarian organizations having observer status with the United Nations General Assembly that provide humanitarian assistance, or their implementing partners, and decides to review the effects of this paragraph every 120 days based on all available information, including the report of the Humanitarian Aid Coordinator submitted under paragraph 11 below;

The Security Council extended the carve-out through March 17, 2012 in Resolution 1972 (2011). The Council’s limited humanitarian exemption seems difficult to square with certain U.S. domestic counterterrorism laws. (For whatever reason, at the time of this writing the OFAC Somalia sanctions website, which indicates “What laws, rules and regulations provide the legal framework for the sanctions” and which lists under that section various Security Council resolutions, does not list those Security Council resolutions containing the limited humanitarian exemption.)

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