Counterterrorism policies implemented since the attacks on September 11, 2001 have fundamentally, perhaps irreversibly, changed the international humanitarian system. For almost 150 years, humanitarian action has been grounded in a few basic principles: that humanitarian agencies are independent of governments, neutral in political conflicts and impartial in the way they distribute assistance. Adherence to these principles has enabled humanitarians to work in the world’s most dangerous areas and to help victims on all sides of a conflict. However, for the past decade, these principles have come under increasing threat as policy-makers try to use humanitarian assistance in support of the struggle against terrorists and insurgents.
The post-9/11 determination to apprehend the terrorists responsible for the attacks on the United States and to prevent other terrorist actions has impacted humanitarian work in many ways, but three developments stand out: the increasingly active role of the U.S. military as a provider of humanitarian relief; efforts to use U.S. non-governmental organizations (NGOs) as a tool of U.S. foreign policy; and the criminalization of humanitarian diplomacy in cases where negotiations with non-state actors are necessary for humanitarian access. While the intentions of these actions to stop terrorists are certainly laudable, the consequences of these actions have been devastating for humanitarian actors.
1) The increasingly active role of the U.S. military as a provider of humanitarian relief
The U.S. military’s involvement in humanitarian assistance certainly predates the 9/11 attacks, but the scale and intentionality of its involvement have since increased to the point that such assistance is now a standard “tool” in counterinsurgency operations. From Provincial Reconstruction Teams and Commanders’ Emergency Response Funds to the formation of U.S. Africa Command (AFRICOM), military provision of humanitarian relief is used to support military objectives. While international military involvement in natural disasters – such as the earthquake in Haiti or the floods in Pakistan last year – is not as controversial, when the military provides assistance in settings in which it is actively engaged in conflict, the message is clear that such assistance is neither neutral nor independent of foreign policy objectives. The U.S. military has now become a major stakeholder in the humanitarian system which raises many questions: Are the traditional principles of neutrality, independence and impartiality still valid – or possible? How do humanitarian agencies relate to the military on the ground? What does it mean when the face of US humanitarian aid is now a soldier’s?
2) The efforts to use U.S. non-governmental organizations (NGOs) as a tool of US foreign policy
In the days following 9/11, the U.S. government made it clear that American NGOs receiving U.S. government funds were instruments of U.S. foreign policy. References by then-US Secretary of State Colin Powell that NGOs were ‘force multipliers’ and by the USAID Administrator Andrew Natsios that NGOs were expected to act as arms of the U.S. government made it difficult, indeed impossible, for U.S. humanitarian NGOs to claim that they were independent of their government’s policy, particularly when they were supported with U.S. funding. Things became even stickier with the implementation of a partner vetting system by the U.S. government which requires nonprofit organizations applying for USAID funding to provide personal information on NGO staff and partner organizations, with even more onerous requirements in place for countries such as Iraq and Afghanistan. While the intention is to prevent U.S. government funds from being diverted to terrorists, in practice this means that NGOs are seen as reporting to the U.S. government on their contacts in the field. This has put the NGOs in an extraordinarily difficult position vis-à-vis their own local staff, their local implementing partners and the international NGO community.
3) The criminalization of humanitarian diplomacy – particularly in cases where negotiations with non-state actors are necessary for humanitarian access
Finally, since 9/11, legislation has expanded both the statutory definition of a terrorist organization and the interpretation of what it means to provide ‘material support’ to such organizations. The damages caused by this expanded understanding are manifold. On an individual level, it has severely restricted the U.S. refugee resettlement program, whereby a woman who provided water to an insurgent holding a gun to her head or a father who paid ransom to free his kidnapped child from a nonstate actor is deemed ineligible for resettlement on the grounds of having provided material support to terrorists. Although there have been some waivers to these restrictions, laws on material support have been upheld by the U.S. Supreme Court, most notably in the 2010 decision of Holder vs. the Humanitarian Law Project. In this case, the Humanitarian Law Project, a U.S.-based nonprofit, had wanted to provide training in international humanitarian law and peaceful conflict-resolution mechanisms to the Kurdistan Workers Party (PKK). But the PKK has been designated as a terrorist organization by the State Department and even efforts to provide them with training in human rights were judged by the Supreme Court to constitute material support and hence to be a crime punishable by a 15-year prison sentence.
The fact is that negotiating with nonstate actors to gain access to civilians affected by conflict has long been a necessity for humanitarians working in conflict zones – a necessity which has now become criminalized when these nonstate actors are designated as terrorist organizations. This raises questions of whether humanitarian agencies need to retain criminal defense counsel to help them in preparing and planning operations in conflict areas where insurgent forces are active. The reality, of course, is that these areas are precisely those where humanitarian need is often the greatest.
Although it has certainly taken the lead, the United States is not alone in adopting counterterrorism legislation which negatively impacts humanitarian actions. But it is a shame that these counterterrorist efforts are making it even more difficult for humanitarian agencies seeking to uphold basic principles of neutrality, independence and impartiality while assisting people in desperate need. What a terrible legacy of 9/11.