Recently the State Department announced that charities operating in good faith to provide famine relief in southern Somalia will not “be the focus” of Treasury Department enforcement, even if some of their assistance finds its way into the hands of al- Shabaab.
This is a welcome step but the announcement leaves uncertainty.
The broad policy statement about allowing good faith efforts was undermined by guidance subsequently published by the Treasury.
First, the suggestion that violations will “not be the focus” of criminal enforcement creates a false sense of security since it applies only to violation of Treasury regulations, not to the distinct “material support” law. And the Justice Department, which has enforcement powers over all federal law, is conspicuously silent.
Second, the guidance is far from a guarantee of protection and can be revoked at any time, even retroactively.
Finally, the new policy only applies to assistance projects of the USAID and its grantees. This leaves out other charities (and their donors). Shouldn't their good faith efforts be protected too? Shouldn’t Samaritans who risk their lives to save starving children be spared from having to risk prosecution and seizure of their assets?
We think a good faith standard should apply to all charities at all times so they can provide food, clean water, shelter, medical attention and other essential services to civilian populations in need. This requires reform of existing laws, not just a reversible “wink and nod.”
There is bipartisan support for the principle that material support laws should not bar humanitarian aid in a disaster or crisis. In a recent Senate hearing Sen. Johnny Isakson (R-Ga.) said: "But when you do reach a crisis point in a humanitarian problem like this, it seems like there ought to be expedited procedures, or else the people you are trying to help are going to be dead."
Senators John Kerry (D-Mass.) and Chris Coons (D-Del.) also called on the administration to issue a “general license” to allow all charities operating in good faith to lend a hand in Somalia.
But without a fix to the law itself, humanitarian responses to future crises will be tied up in bureaucratic buck-passing among federal agencies. The current situation demonstrates that the case-by-case approach of exempting some aid by some groups is unworkable.
As long as the law continues to presume that incidental leakage of humanitarian aid to terrorist groups is the equivalent of supplying guns and explosives, we will continue to face situations like Somalia.
This is the reverse of what is needed, and of what is consistent with international humanitarian law and principles. Rather than a blanket prohibition, there should be a presumption in favor of charities providing essential humanitarian aid, with the option of restrictions being applied on an as-needed basis.
Sen. Patrick Leahy (D-Vt.) rightly noted that a more long-lasting statutory fix is needed to lift the barriers to humanitarian aid access. The ball is in Congress’ court to change this sledgehammer into a scalpel.
Gabor Rona is the International Legal Director of Human Rights First. Kay Guinane is the Director of the Charity and Security Network.