Criminalizing Humanitarian Relief: Are US Material Support for Terrorism Laws Compatible with International Humanitarian Law?

Abstract

In the wake of the US Supreme Court’s recent decision in Holder v. Humanitarian Law Project there has been much discussion about the potentially chilling effect that US material support laws may have on the provision of humanitarian assistance in both disaster and war zones. This essay aims to consider this issue in depth, providing an analysis of the material support legal regime and the Humanitarian Law Project decision, its potential legal impact on humanitarian organizations and the interaction between these laws and international law. In so doing, this essay will advance a number of arguments. First, it posits that the material support laws do potentially pose a serious threat to the provision of much needed humanitarian relief. Next, it is argued that that the material support laws as applied to humanitarian relief organizations place the US in violation of its legal obligations under international humanitarian law, more specifically under the Geneva Conventions. It then considers the impact of this conflict between the statutes and the Conventions on the US domestic plane and looks at the literature and jurisprudence on the self-execution of treaties to examine whether the Conventions are judicially enforceable in US courts in order to assert that some provisions of the Conventions could arguably furnish humanitarian workers and organizations facing criminal prosecution with a defense against allegations of providing material support. Finally, this essay considers a possible enlarged humanitarian exception to the existing statutory regime, as well as the particular difficulty faced by the International Red Cross movement in adapting its activities to ensure compliance with the material support laws.