Accountable Altruism: The Impact of the Federal Material Support Statute on Humanitarian Aid

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INTRODUCTION

In a world where disillusionment is endemic, few activities have a more favorable public image than humanitarian assistance. Nongovernmental organizations (NGOs) that provide humanitarian aid seem to be heirs to Humes's praise for benevolence. (1) While this is often an apt description of both the intent and effects of humanitarian aid, a darker side also exists. In some cases, the availability of humanitarian aid may encourage conflicts and fuel terrorist violence. (2) Both international and domestic counterterrorism policy should address this phenomenon, and ensure that humanitarian aid has no unintended consequences; however, counterterrorism law and policy must also ensure that humanitarian organizations have safe harbors for the many positive aspects of their work.

This issue has emerged after the Supreme Court's decision in Holder v Humanitarian Law Project, (3) which upheld Congress's prohibition on "material support" to groups designated by the Secretary of State as foreign terrorist organizations (DFTOs). (4) The aid encompassed within the statute included aid obviously linked to violence, such as ammunition. (5) It also included aid that could have a more indirect effect, including money for ostensibly nonviolent purposes like schools, (6) and training in international law. (7)

Chief Justice Roberts's opinion for the Court upheld a broad ban with some safe harbors on the theory that the road to terrorism is paved with good intentions. (8) The Court viewed DFTOs as pervasively bad accountants who use a slant toward humanitarianism as a ploy to optimize financial contributions and improve their strategic position. DFTOs make this slant work by exploiting information asymmetries with their adversaries. For example, Roberts noted, DFTOs and other armed groups regularly use refugee camps as bases to mobilize armed opposition. (9) Camps are typically protected sites under international humanitarian law (IHL). (10) Proving that DFTOs use camps for this purpose is difficult: camp residents may be ideological allies of the DFTO, may be too scared to disclose the DFTO's influence, or may acquiesce because the DFTO manipulates aid to buy them off. Because of this asymmetry in information, DFTOs or other armed nonstate actors (NSAs) gain an advantage over their adversaries. Although humanitarian groups set out to end suffering, they end up compounding it. (11)

Roberts's concern was not facile conjecture. Scholars of humanitarian aid, including veterans of previous aid efforts, have been expressing similar concerns for years. (12) For many, the turning point--albeit one involving civil strife, not terrorism--was the vast camp in Goma, Zaire, established by humanitarian groups after the Rwandan genocide in the 1990s. (13) The camp provided food, housing, and logistical support for the Hutu fighters who had perpetrated the genocide, allowing the fighters to launch raids back into Rwanda in which more Tutsi were killed. Moreover, Tutsi in the camps, along with moderate Hutu who did not buy into the Hutu fighters genocidal vision, were often the targets of lethal violence in the camps. (14) We can model the risks of humanitarian aid through what I call the futility formula, which depicts situations in which aid compounds violence. (15)

Of course, measuring the actual effects of humanitarian aid in a real conflict is difficult. (16) Many situations will vindicate the benevolence that undergirds our normal intuitions about humanitarian aid: that aid helps civilians more than it helps perpetuate the conflict. Governments that stand in the way of aid in such situations exacerbate the horrific harms engendered by humanitarian crises. Moreover, unduly onerous restrictions on aid can also reduce the "soft power" that the United States gains as a facilitator of international philanthropy. (17)

Compounding the dilemma, such restrictions may pose tensions with international law. …