Tougher donor restrictions on relief operations in areas controlled by extremist groups are out of control, impeding life-saving work, and could lead aid groups to pull out of the most challenging responses, senior humanitarian officials and rights experts warn.
Project suspensions and closures in Syria, two recent prosecutions in US courts, and a new USAID ruling have combined to make NGOs alarmed at the shrinking space for humanitarian action and unforgiving climate for aid in terrorist zones.
French activist and scholar AgnAs Callamard, a UN special rapporteur on human rights, is calling for a new system of exemptions for aid to areas like Syria's northwestern Idlib province that are largely controlled by Islamist extremists.
A 17 September report by Callamard, Saving Lives is not a Crime, released at the start of the UN's annual General Assembly, argues that counter-terrorism laws are out of control and can potentially criminalise even life-saving medical aid or food relief.
She warns they are having chilling effects on the provision of aid, preventing assistance from reaching populations controlled by 'terrorist' organisations and likely resulting in greater harm to life and civilian deaths.
Recent moves by the United States � the world's largest donor to humanitarian efforts � have reinforced what Joel Charny, US director of the Norwegian Refugee Council, characterised as an unrealistic approach toward compliance with anti-terror restrictions, setting off what he deemed an existential crisis for some aid groups that depend on US funding.
Some aid groups, facing mounting legal risks on counter-terrorism rules, may decide it's not worth the hassle and pull out of the most testing places, Charny warned.
Two of the world's largest humanitarian crises, Syria and Somalia, have significant parts of the country controlled by sanctioned groups. USAID guidelines, further tightened for Syria this month, point out several other locations that qualify as high risk for counter-terror violations, including Afghanistan, Iraq, Libya, northeast Nigeria, parts of Ukraine, Venezuela and Yemen.
Callamard says Australia, Britain, Canada, and Switzerland are among the countries that have made efforts to exempt humanitarian action from anti-terrorist regulation. However, the US role in the international banking system, she argues, gives its counter-terrorism policies wide influence.
According to international law, the delivery and distribution of neutral and impartial humanitarian aid must be permitted, no matter who the de facto authorities are. NGOs and other international aid agencies continue to provide food, water, health, and other support to civilians who live in areas controlled by sanctioned groups in Afghanistan, Somalia, Syria, Yemen, and elsewhere.
Such operations, as in Syria's Idlib province, face multiple challenges, including maintaining impartiality and staff security, dealing with chains of sub-grantees, and reliance on third-party or remote monitoring. Large parts of Idlib are controlled by Tahrir Al-Sham (HTS), an al-Qaeda-linked armed group sanctioned by the US government.
While aid groups aim to work impartially on the basis of need, food is strategic and symbolic and vulnerable to political grandstanding � Tahrir Al-Sham issued a decree on 4 September banning the sale of food made in Syriain areas it controls.
To comply with US law, NGOs must declare they do not provide material support or resources to sanctioned groups or individuals, anywhere in the world. In addition, USAID grant agreements may demand detailed procedures on how they limit those risks. For example, they should check the senior staff of any groups they donate to, or use as intermediaries, such as local hospitals and NGOs, against counter-terrorism databases.
In the past some minor cases of aid being diverted to extremist groups have been tolerated, where the imperative of getting help to the needy has taken precedence over the letter of the law.
That seems to be changing.
USAID recently added more requirements to future grant agreements, as reported by IRIN last week. A USAID spokesperson said the new requirements were put in place to ensure that US taxpayers' dollars are not boosting extremist organisations but are still delivering aid.
But the tougher US policy has been met with outright frustration from some quarters.
One aid worker familiar with the issues, who requested anonymity, charged that the new USAID terms � sent to aid agencies on 12 September � run counter to humanitarian principles and appear to instrumentalise aid to achieve strategic goals, such as dislodging extremist groups.
The new rules make it harder to deliver help to civilians trapped in the Idlib region � who may unwillingly be under the thumb of extremists � and are cruel and nonsensical, the aid worker said, adding that they leave so many questions unanswered, including how to define which group controls which area.
The USAID's Office of the Inspector General, or OIG, held a roundtable briefing for NGOs on 24 July to lay out its approach to oversight, circulating an updated handbook on fraud prevention in Syria and Iraq. (OIG reports 20 open investigations between Iraq and Syria. The cases include allegations of theft, bribery, fraud, and diversion to armed groups. The OIG claims it has helped avoid losses of $180 million this year.)