Examples of restricting access

MSF has experienced counterterrorism-related restrictions of access in several contexts, including Central Mali, the South-East of Niger, North-East of Nigeria and West Cameroon.Footnote ⁸ In such contexts, the organization has undergone varying levels of restriction of access justified on security reasons, as we shall see in the following examples provided.

In Niger, the government has expressly banned access by humanitarian workers to certain areas where armed groups tagged as “terrorists” operate.Footnote ⁹ Some areas were made inaccessible in May 2015, when the state of emergency was declared in the Diffa region. In March 2017, the government also declared a state of emergency in the western areas bordering Mali in Tillabéry and Tahoua regions. As stated in an MSF report:

International non-governmental organizations in Niger have made public calls demanding access.Footnote ¹¹ The government only considered allowing humanitarian actors to access these areas if they accepted moving with an armed military escort. MSF generally refuses armed escorts to maintain a distinction between military and humanitarian operations, and has not accepted this condition, among other reasons, because of the potential risks it entails in terms of security for the MSF teams and acceptance of its services by the population. While access to the islands in Lake Chad and the bordering area with the lake was deemed impossible, negotiated access was still possible in other zones near the lake. However, this was not easy, and the likelihood of access significantly decreased during military operations. Whilst officially the restriction of access was ostensibly for the safety of humanitarian workers or ongoing military operations, there had been critical voices in the humanitarian sector alluding to a different, double rationale. Firstly, impeding access ensures that there are no foreign actors to observe what is happening (so-called “witnessing”); and secondly, assistance is effectively denied to populations perceived as sympathizing with the insurgents.Footnote ¹²

In Nigeria, restrictions on access have been much stronger than in Niger. According to the UN Office for the Coordination of Humanitarian Affairs (OCHA), by the end of 2019, 85 percent of Borno State was considered inaccessible by international humanitarian agencies.Footnote ¹³ Insecurity was the main limitation, but the restrictions of movements of personnel or assistance by military or civilian authorities continued to be constraints on humanitarian access in Borno, Adamawa and Yobe states. OCHA stated that the movement restrictions prevented access to populations living in areas where armed groups were perceived to be active, hampering the delivery of assistance beyond security perimeters set by the Nigerian military in garrison towns outside Maiduguri.Footnote ¹⁴ For instance, in Abadam, a Local Government Area of Borno State bordering Niger, access was denied to MSF by the Nigerian Army stating that there was no population and the security situation was too risky for the humanitarians. However, the reasons underlying the denial of access may also include the double rationale mentioned above: avoiding “witnessing” and preventing aid from reaching people associated with the enemy. Other local government areas in Nigeria were also considered zones completely inaccessible to humanitarian organizations. In other areas, access to locations beyond the control of the Nigerian army has been conditional on being escorted by them, a ban enforced by a hyper-controlled perimeter dotted with checkpoints. While humanitarian actors were not able to work in many of these zones due to security constraints and lack of negotiated access with armed groups, the Army has not permitted access to certain areas that MSF teams and certain humanitarian actors consulted believe were reachable. Humanitarian actors including MSF showed an interest in accessing these zones, but, in practice, many of them were not even working in the areas under the control of the army. This included in particular the UN humanitarian agencies, who had a very poor presence in certain Government-controlled areas outside Maiduguri, the capital of Borno State, partially as a consequence of a very restrictive security policy. Funding seemed not to be as significant a limitation for programming and implementing humanitarian action as it was in other contexts, and nearly a 100 aid groups work in Maiduguri. Yet donors were said to struggle to find implementing partners willing to accept the security risks for programmes outside of the city.Footnote ¹⁵

In Mali, there is no official prohibition of travel in any part of the country,Footnote ¹⁶ and contrary to Niger and Nigeria, authorities have not required MSF to use armed escorts. However, restrictions were imposed in the past. For instance, French and Malian military forces refused MSF's repeated demands to access Konna in Mopti Region, where intense fighting occurred.Footnote ¹⁷ MSF knew that, because of the ground and air fighting, the population had significant medical and humanitarian needs and had brought in two trucks loaded with medical supplies and medicine and had the necessary capacity to intervene successfully. But despite repeated requests, the organization was prohibited from entering the area.Footnote ¹⁸ More recently, from 1 February 2018 to 8 August 2019, the Malian armed forces banned the use of motorcycles and pick-up vehicles in certain geographical areas, saying that such assets were used by militants to undertake attacks.Footnote ¹⁹ An outcome of this ban from MSF's perspective is reduced access of populations to humanitarian assistance, as these are the most common types of transport for the population.Footnote ²⁰ Whilst many have adapted by using bicycles and donkey carts, this ban, combined with a context of volatility and violence, forced people to use medical facilities only when their condition had significantly deteriorated, causing avoidable death and suffering. For instance, when the ban was enforced, MSF recorded a 40 percent decrease in admissions to a hospital that MSF supports in Douentza.Footnote ²¹

In Cameroon, parts of the north-west and south-west regions have been inaccessible for international aid organizations due to insecurity and restrictions on movement, and only a few national aid organizations have had occasional access. Large numbers of people displaced into rural areas have not received any assistance.Footnote ²² In the assessment of MSF, all parties to the armed conflict have been responsible for disrupting healthcare services and access, and for attacks against medical facilities and health workers, which have been not only frequent but also intentional: “hospitals are deliberately being attacked or occupied, ambulances are being blocked, and medical personnel are being threatened, abducted, subjected to violence, or killed”.Footnote ²³ In the 10 months leading up to March 2019, MSF teams documented 61 attacks on healthcare facilities and 39 attacks against medical professionals.Footnote ²⁴

As displayed in the aforementioned examples, governments and armed forces have argued that security and military reasons justify denial of access to MSF in places where groups tagged as “terrorists” operate. While these justifications may be legitimate or mere excuses, the restriction of access to populations who need humanitarian assistance may be facilitated or even motivated by the perceived association of those populations with the enemy. As we shall see in the next section, people may be treated as suspects (and therefore be denied assistance) by the mere fact of where they live and/or because of their ethnic, religious or cultural identity.

Associating civilians to designated terrorist groups

Certain donors require not only that humanitarian actors identify and avoid providing assistance to fighters, but also to people “associated” with fighters. This has been at least the practice of two major humanitarian actors: the U.S. Agency for International Development (USAID) and UNICEF. In its proposal guidelines for implementing partners, the Office of U.S. Foreign Disaster Assistance (OFDA), an organizational unit within USAID, reminded applicants of the prohibition on “transactions with, and provision of resources and support to, individuals and organizations associated with terrorism”, and added that “it is your legal responsibility to ensure compliance with these executive orders and laws”.Footnote ³⁵ These provisions apply to any contract or memorandum of understanding between implementing organizations (in particular NGOs) and UN agencies funded by USAID, and in practice, there are no exceptions; the same goes for registration as a recipient of funds. There are references to exceptions in “food, medical care, micro-enterprise loans, shelter, etc. unless the Recipient has reason to believe that one or more of these beneficiaries commits, attempts to commit, advocates, facilitates, or participates in terrorist acts, or has committed, attempted to commit, facilitated or participated in terrorist acts”.Footnote ³⁶ But the degree of “association”, “facilitation” or “advocacy” depends on the subjective assessment of the observer.

The restrictions imposed by UNICEF were not new, but the enforcement, interpretation and impact of this clause could be. UNICEF's “General Terms and Conditions for Programme Cooperation Agreements” stipulate in section 21 that cash, supplies and equipment “are not used to provide support to individuals or entities associated with terrorism”, among other requirements.Footnote ³⁷ Interestingly enough, the text of this section almost verbatim coincides with paragraph 30 of the UNICEF Programme Cooperation Agreement used over a decade ago.Footnote ³⁸ Humanitarian actors are likely not to have paid much attention to this clause in the past, but in the current context of pre-eminence of the counterterrorism agenda, the very existence of such a commitment is of concern.

Evidence that this clause could be more stringently applied than in the past is UNICEF's decision to turn down USAID funding in Northern Nigeria.Footnote ³⁹ An alleged explanation for such a decision was a concern for the USAID's request to certify in writing that aid is not used to support terrorism, as the UN agency feared legal consequences after the experience of Oxfam in the Gaza Strip.Footnote ⁴⁰ However, this prudence did not prevent friction between Nigerian officials and UNICEF, and Nigeria's military suspended the activities of the UN agency under the official accusation of harming Nigeria's counterterrorism efforts via “spurious and unconfirmed allegations” of human rights abuses by the military.Footnote ⁴¹

Grant agreements can even go further than legislation by governments and donor agencies in the limits they impose on humanitarian action. For example, according to the USAID's “Lake Chad Basin” clause, prior to providing any assistance to certain people, the USAID's implementing partner must obtain written approval by the USAID Agreement Officer when it “affirmatively knows” that these include people formerly “affiliated” with JAS or ISWA such as “fighters, non-fighting members, individuals who may have been kidnapped by Boko Haram or ISIS-West Africa but held for periods greater than six months, and those under the control or acting on behalf of the same”.Footnote ⁴² According to USAID, “if an implementer has affirmative information in regarding a beneficiary's affiliation, the implementer is required to provide that information to USAID, which will decide if providing assistance to those in question would be consistent with U.S. law”.Footnote ⁴³ This provision places the implementing partners in a position of responsibility to subjectively designate people to be screened and to contribute to counterterrorism agendas.Footnote ⁴⁴ Moreover, discriminating between these different categories established by USAID is not an easy task. Former fighters and members of armed groups cannot be expected to declare their previous affiliation or wear a uniform and other individuals’ testimonies will inevitably be biased in a context of violence.Footnote ⁴⁵ Furthermore, civilians are often coerced to obey armed groups and behave according to the norms imposed. Many people fleeing the territories where JAS or ISWA are active have suffered the consequences of war for years with no access to basic humanitarian assistance, and many have an extremely poor medical situation. However, these new arrivals may be identified firstly as potential supporters of the insurgency and not as people in desperate need. In the case of unaccompanied women from rural areas, for instance, rather than being screened for humanitarian needs as a consequence of sexual violence, abduction or forced marriage and offered health and protection assistance accordingly, they are “often questioned and in some cases detained if they could not prove that they were not affiliated by marriage with members of JAS”.Footnote ⁴⁶

These examples demonstrate that, in certain contexts, humanitarians have been somehow asked to subjectively identify (and avoid assisting) people who others determine are “associated” with an “enemy” armed group. However, state authorities have also resorted to other, subtler ways to instrumentalize humanitarian action in the general strategy of fighting the enemy, as we shall see in the next section.

Detention, political screening and dispossession of the right of assistance

In certain locations, humanitarian actors do not need to identify people associated with designated terrorist groups because the government and military officials have previously done a screening process and separated those who are permitted to reach the humanitarians. This entails discrimination in humanitarian assistance contrary to the IHL aspiration for the provision of assistance to be based solely on needs,Footnote ⁴⁷ as notably exemplified in Northern Nigeria and Mosul (Iraq).

In Northern Nigeria, as witnessed by MSF, no humanitarian organization can have prior contact with internally displaced people in certain zones until they are searched and screened by the Civilian Joint Task Force (a loose vigilante group formed by militants to fight JAS) or the military at checkpoints or in the barracks. This has included women and children as young as 9 years old. Some new arrivals never reach humanitarian organizations’ services, in particular people with war wounds, frequent in this type of war setting. In fact, in certain places, MSF has never received any wounded member of armed groups in its medical structures, while the organization has received wounded soldiers on several occasions. This is very uncommon in armed conflict-affected areas that MSF is used to. This is probably because men, including wounded men, as well as women and children in certain places, are systematically taken for interrogation and held in conditions of detention and interrogation, that in both Nigeria and Cameroon have been described as “harsh” by Amnesty International.Footnote ⁴⁸ Researcher Chitra Nagarajan has found that harm to civilians produced by the counterterrorism operations and practices of the Nigerian army stems, at least, from five main sources:Footnote ⁴⁹ the lack of proper distinction between fighters and civilians who are perceived by some as part of the “enemy”, the use of schools and hospitals by the military, “restrictions on the movement of food and goods, designed to deprive the enemy of essential supplies”, “widespread sexual exploitation and abuse” by the military and “mistrust and suspicion between the military and civilians”. However, the crisis had been labelled as “nutritional”, diverting attention away from the consequences of counterterrorism measures.Footnote ⁵⁰ Even for people who can receive humanitarian assistance, the conditions that these measures allow for significantly differ from what they need.Footnote ⁵¹

In Iraq, civilians fleeing Mosul because of the United States-supported Iraqi military offensive to retake the city from ISIS in 2016–2017 had to pass through screening and mustering processes by pro-government forces before accessing humanitarian assistance, in particular, “all males above 12 years of age”.Footnote ⁵² This, along with the fact that the UN's World Health Organization (WHO)-led humanitarian response was closely coordinated with the Iraqi government (a party to the armed conflict), reduced operational independence and impartiality for some humanitarian actors in the context. Humanitarian principles and medical ethics were also affected by the widespread presence of various forms of military and private security at medical facilities. The WHO subcontracted its emergency health programme to these militarized hospitals, including screening.Footnote ⁵³ Humanitarian workers interviewed by the organization Humanitarian Outcomes talked about patients who were afraid to be referred to an NGO-run hospital associated with the United States; or caretakers unable to enter because of the presence of military personnel and the security screening procedures; and patient information being handed over to military actors.Footnote ⁵⁴ The battle for Mosul had a terrible impact on civilians.Footnote ⁵⁵ By embedding humanitarian organizations with the Iraqi military, it has been argued that the principle of humanity (the imperative to save lives) “was consciously given precedence” over the principles of impartiality, neutrality and independence.Footnote ⁵⁶ However, reputed journalist Robert Fisk challenged this logic with a hypothetical parallel that unveiled politics rather than a humanitarian imperative behind these practices: “Would, for example, the WHO have funded Russian medical posts to be embedded with Syrian army units on the front lines of east Aleppo? They did not do so. But no one questioned the decision to make the same political compromise in Iraq.”Footnote ⁵⁷

As already stated, discrimination in humanitarian assistance must be based solely on needs, and IHL is clear when recalling the obligation of the parties to the conflict to collect and care for the wounded and sick.Footnote ⁵⁸ However, research by the Johns Hopkins Center for Humanitarian Health stated that: “the U.S. and its coalition partners have never accepted direct responsibility for the medical care of all civilians during wars in Afghanistan or Iraq”, and in fact conditioned this care to eligibility criteria that “are not triage rules; they are pre-triage rules based not on medical need, but on patient identity”.Footnote ⁵⁹ This identity-based screening has affected both medical ethics and humanitarian aid, dispossessing people in need of their right to assistance.