Following the Supreme Court's decision in Holder v. Humanitarian Law Project (HLP), (1) there has been much discussion about the potentially chilling effect of the so-called "material support" laws on the provision of humanitarian assistance in both disaster and war zones. My article considers this issue in depth, analyzing the U.S. material support legal regime and the HLP decision, their potential legal impact on humanitarian organizations, and the interaction between the material support laws and international humanitarian law (IHL).
Three federal statutes and one executive order target the provision of material support to or financing of terrorism. (2) The most important of these provisions for our discussion here is 18 U.S.C. [section] 2339(b), which makes the provision of "material support" to a designated terrorist organization (DTO) a criminal offense. A conviction can lead to fines and/or a prison term of up to 15 years or, in extreme cases, a life sentence. This statute defines "material support" as the provision of
any property, tangible or intangible, or service, including
currency or monetary instruments or financial securities, financial
services, lodging, training, expert advice or assistance,
safehouses, false documentation or identification, communications
equipment, facilities, weapons, lethal substances, explosives,
personnel, and transportation, except medicine or religious
This sweeping definition makes it difficult to know exactly what conduct comes under the statute's purview. As a result, many humanitarian relief activities could be construed as material support if provided to the "wrong" people in the "wrong" circumstances. Food, water purification devices, hygiene kits, shelter materials, and blankets could constitute "property"; providing access to shelter could constitute "lodging"; access to sanitation and infrastructure projects could be considered as "facilities"; and family reunification programs providing access to communications infrastructure could constitute "communications equipment."
These questions are not hypothetical. In immigration cases employing a similar material support test, individuals were deemed to have offered material support for having provided water or items of clothing to family members affiliated with DTOs, (3) and even providing such support under duress was found to violate the law. (4) The only relevant explicit exception is for "medicines," and even then it is unclear whether medical services, such as medical advice or the performance of surgical procedures, are included. Thus, the delivery of such services could create serious criminal liability. (5)
Relief programs operating in a DTO-controlled area face a particular risk of liability. For example, in October 2009 the U.S. State Department sat on $50 million worth of aid to Somalia out of fear that government employees would face federal prosecution because large parts of Somalia are controlled by Al-Shabab, a DTO. The State Department even went so far as to seek assurances from the Treasury Department that it would not prosecute or freeze assets of government employees providing the humanitarian relief. (6) In addition, following the 2004 tsunami in Asia, congressional testimony suggested that major aid efforts were actually withdrawn from Sri Lanka out of fear that the relief workers might face prosecution for "aiding" Tamil Tigers simply by providing humanitarian relief. (7)
To understand how these statutes interact with international humanitarian law, we must answer the following questions: Are civilians in conflict zones entitled to receive assistance? Must belligerent parties provide or facilitate such assistance? Is there a duty to allow third parties, such as the Red Cross, to provide assistance? Most importantly, does the United States have an obligation under the Geneva Conventions (8) not to interfere with the provision of humanitarian relief abroad? …