The U.S. Agency for International Development (USAID) established a special provision for its funding of humanitarian aid in Nigeria a year ago that is making it harder for organizations to operate in the northeastern parts of the country in accordance with core humanitarian principles.

The new clause, included in all grant contracts for humanitarian activities in Nigeria, requires that recipient agencies “obtain the prior written approval of the USAID Agreement Officer before providing any assistance…to individuals whom the Recipient affirmatively knows to have been formerly affiliated with Boko Haram or the Islamic State of Iraq and Syria (ISIS)-West Africa [now the Islamic State in West Africa Province, or ISWAP], as combatants or non-combatants.” Importantly, the provision states that “[f]ormer affiliates do not include civilian populations who only resided in areas that were, at some point in time, controlled by the groups,” and that the agreement officer’s decision “shall be provided promptly.”

But USAID provides no further information on its understanding of ‘affiliation.’ Without further definition, former ‘affiliation’ is incredibly broad and can be understood to include individuals with former ties of any kind to the armed groups, including children and other family members of present or former members.

This clause significantly complicates the situation for aid workers on the ground in one of the world’s gravest humanitarian crises. First, it is unclear the extent to which aid providers are expected to investigate the ultimate recipients of the aid they distribute. Second, while the request for approval means aid provision is not impossible, it is unclear whether USAID agreement officers are able to provide timely approval in a fast-moving humanitarian environment, and how often approval is being required for maintenance of infrastructure projects such as wells built to support an entire community.

Third, while the requirement of affirmative knowledge narrows the situations in which the requirements apply and theoretically leaves aid providers room to maneuver, it does nothing to bring the clause in line with humanitarian principles. Indeed, while the clause is intended to prevent terrorist groups from benefiting, even indirectly, from U.S. funding, it challenges core humanitarian principles and compounds the difficulties humanitarian organizations already face as a result of other counterterrorism measures.

Violence Levels and Humanitarian Need

For almost a decade, Boko Haram has inflicted violence on northeastern Nigeria, conducting attacks against religious groups, law enforcement officials, military personnel, and civilians. In March 2015, Boko Haram pledged allegiance to the Islamic State, and since ISIS was largely driven out of the Levant, its affiliated Islamic State in West Africa Province (ISWAP) group has gained greater traction in Nigeria. Borno state, in the northeastern corner of the country, is the epicenter of terrorism-related violence, but neighboring Adamawa and Yobe states also suffer under the influence of the extremist groups. While the terrorism-related death toll has decreased in recent years, Boko Haram is responsible for more than 15,000 deaths in the past five years. The 2019 Global Terrorism Index ranks Nigeria third-highest in the number of terrorism-related deaths.

The resulting conditions in the northeastern territories are dire, not only in terms of violence, but also in terms of humanitarian need. According to Mark Lowcock, the United Nations Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, “[m]ore than 7 million people currently need humanitarian assistance in Borno, Adamawa and Yobe states…and more than 3 million people are food insecure.”

In the face of this need, humanitarian organizations face a significant challenge balancing adherence to their core principles and to the USAID requirements imposed by the new clause. This balancing act is just one example of the complications inherent in providing humanitarian aid in the context of counterterrorism measures more broadly.

Humanitarian Principles

While it largely follows U.S. domestic law, the USAID clause fails to align with three core principles that govern humanitarian aid provision: impartiality, independence, and neutrality. Impartiality demands that aid be provided based solely on need, without consideration of an individual’s affiliation with a party to the conflict or an armed group. Under Common Article 3 of the Geneva Conventions of 1949, “an impartial humanitarian body…may offer its services to the Parties to the conflict.” But the USAID clause explicitly directs aid providers to consider known, even former, affiliation with Boko Haram or ISWAP and deny individuals aid contingent on the decision of the USAID agreement officer, who is empowered to deny permission on bases unrelated to need.

Independence requires that aid be delivered without interference from parties to the conflict or other actors. The principle was enshrined in a 1991 General Assembly resolution that recognizes that “independence, meaning the autonomy of humanitarian objectives from the political, economic, military or other objectives that any actor may hold with regard to areas where humanitarian action is being implemented, is also an important guiding principle for the provision of humanitarian assistance.” In contrast, the USAID clause interferes with such autonomy by subjecting the provision of aid to the permission of an agreement officer.

Finally, neutrality demands that humanitarian organizations not take sides in the conflict. While accepting USAID funding and the requirements of the new clause does not void their neutrality, humanitarian organizations run the risk of appearing to take sides with the U.S. or Nigerian governments by requesting USAID permission before delivering aid. This, in turn, can increase security risks to aid providers who need to gain acceptance from armed groups in order to reach those in need. And the situation in Nigeria is already exceedingly dangerous for humanitarian workers. On Dec. 12, 2019, two Red Cross national staff members were kidnapped by ISWAP, and around that same time, some of the aid workers affiliated with Action Against Hunger who had been kidnapped in July were killed by ISWAP. Later in December, three aid workers from Alima were killed and another two were kidnapped by suspected Boko Haram militants.

Providing Aid Amid Counterterrorism Efforts

The USAID requirement exemplifies the wider challenges of navigating humanitarian aid provision in the context of counterterrorism efforts. Beginning with U.N. Security Council Resolution 1373, adopted in 2001 shortly after the 9/11 attacks, the Security Council has mandated that states take steps to deny individuals or entities engaged in terrorist activities direct or indirect assistance, including access to funds, goods, and services. U.S. domestic law goes further, prohibiting and penalizing the provision of “material support or resources” to terrorist groups broadly defined. These requirements are incorporated into the humanitarian aid funding contract terms of many donor countries.

As Lowcock acknowledged, operating in adherence with counterterrorism standards “is not only a matter of principle but is also required as a practical condition of funding from the major donors.” In 2019, the Security Council passed Resolution 2462, aimed at preventing the financing of terrorism without hindering impartial humanitarian activities foreseen under international humanitarian law. The balancing act, however, is not so easily achieved.

Costly Consequences

Despite the intended assurances of Resolution 2462 and other national and international instruments, counterterrorism measures are being applied in a manner that hinders humanitarian activities permitted under international humanitarian law. One study commissioned by the Norwegian Refugee Council and the U.N. Office for the Coordination of Humanitarian Affairs found that donor counterterrorism measures limit the ability of organizations to operate in adherence with the fundamental principles of neutrality, impartiality and independence, and complicate their engagement with armed groups.

Indeed, the study identified three areas in which counterterrorism laws, internationally and domestically, affect humanitarian action. Structurally, it is nearly impossible for humanitarian aid providers to adhere both to core humanitarian principles, and to the donor requirements and legal stipulations associated with counterterrorism efforts, leading them to structure their efforts differently to avoid certain regions or populations based on terrorism designations not humanitarian need. Operationally, counterterrorism efforts can restrict funding and programming in certain areas, can inspire “self-censorship” by the aid organizations themselves, and can increase the use of subcontractors as a risk management strategy. Internally, counterterrorism provisions can slow operations and increase costs for the aid agency, making it even more difficult to provide aid in complex environments. Attendant to direct aid provision, access is also made more complicated by counterterrorism restrictions that criminalize the fees humanitarian organizations sometimes pay armed groups in order to reach civilians in need.

In the face of these challenges, some observers are concerned that aid groups will stay away from northeastern Nigeria entirely rather than accept the vetting of recipients in a manner that is contrary to humanitarian principles. According to Jacob Kurtzer, author of a Center for Strategic & International Studies (CSIS) report on humanitarian access, “confusion and risk aversion among humanitarian agency personnel means they may shy away from conducting even foundational activities such as access negotiations for fear of being liable and prosecuted for direct support of proscribed groups.” This is also true for banks, which are increasingly hesitant to deal with humanitarian organizations working in high-risk areas like northeastern Nigeria.

We have seen these issues arise elsewhere as well. Looking at a similar situation, humanitarian funding to southern Somalia decreased by 88 percent from 2008 to 2010 after the U.S. designated Al-Shabaab as a terrorist group, thereby criminalizing the provision of anything that might be considered material support. This decrease occurred despite the severe food crisis that hit the country in those years. Several nonprofit international aid organizations stopped operating in the area, reporting that they made those decisions in part to minimize exposure to legal liability under counterterrorism statutes.

The legal situation changed substantially when the Security Council voted to exempt humanitarian organizations operating in Somalia from an earlier resolution in 2008 obliging states to impose financial sanctions on individuals and groups aiding efforts to threaten peace and security in Somalia. The exemption applied “to the payment of funds, other financial assets or economic resources necessary to ensure the timely delivery of urgently needed humanitarian assistance in Somalia.” But according to the International Peace Institute, “the chilling effect of the UN and US sanctions regimes…is reportedly still pervasive,” with “[h]umanitarian organizations continu[ing] to engage in excessive self-regulation.”

The Fallout

Rejecting the USAID clause’s implicit call for self-regulation, UNICEF declined USAID funding in Nigeria. UNICEF Nigeria Emergency Manager Nicki Bennet explained the group’s decision in a statement to The New Humanitarian: “UNICEF programmes are guided by…the humanitarian principles that are essential to the pursuit of its humanitarian mandate.”

But such decisions are relatively rare. As Kurtzer of CSIS wrote, “More often, despite strong reservations, the humanitarian imperative compels humanitarian actors to accept donor requirements despite the legal risks and the compliance hurdles they entail.”

Perhaps most problematically, the U.S. is a leader in the provision of humanitarian aid around the world. If more donor countries follow America’s approach, sacrificing humanitarian principles in their efforts to combat terrorism, the challenge of reaching starving people in northeastern Nigeria and elsewhere will grow ever more challenging.

IMAGE: Nigerian Internally displaced women are seen on July 21, 2019 at an informal settlement in Madinatu, Old Maiduguri. Boko Haram’s decade-long conflict has killed 27,000 people and displaced about two million from their homes in northeast Nigeria. The violence has spread to nearby Niger, Chad and Cameroon, with the affected countries forming a regional military coalition to fight the group. Boko Haram fighters have abducted huge numbers of women and children across the region. (Photo by FATI ABUBAKAR/AFP via Getty Images)