The United States Supreme Court decision in Holder v. Humanitarian Law Project (1) is part of a wider trend in counterterrorism that threatens to undermine the hard-won neutrality of humanitarian action--an essential characteristic and crucial tool for reaching populations in need of life-saving assistance. The agreement to preserve a space for neutral humanitarian action amounts to an agreement not to factor life-saving assistance into military strategies. Like most international humanitarian law (IHL), this is based on a mixture of humanitarian considerations and reciprocal self-interest. It is a principle, however, which regularly comes under attack. Only recently has the international community reached consensus that the potential military advantage of depriving one side of the means of survival does not outweigh the humanitarian imperative of relieving the suffering of war victims. Siege was a common military strategy for thousands of years, and blockades were still used until World War II. Since then, however, international humanitarian law has developed to a point where civilians must be allowed to receive life-saving relief, and the use of starvation as a method of war is an international crime. (2)
Conversely, the potential advantages that humanitarian action can offer the efforts of one party also threaten to undermine the neutrality consensus. Aid has long been used as a stabilization tool, directed towards areas under control of the favored party and used to bolster the image of intervening states. There are international agreements--such as the Good Humanitarian Donorship Initiative and the European Union Consensus on Humanitarian Aid--that humanitarian assistance should be left out of these strategies. (3) Yet recent stabilization approaches not only integrate humanitarian action but often place it at the center of the plan. (4) The co-optation of humanitarian aid into the efforts of one side undermines both the reality and perception of its neutral character, exposing aid workers to attacks and outright denials of access, and leaving those in need in "enemy"-controlled areas to suffer without relief.
The Holder decision and other recent developments in counterterrorism law attack humanitarian neutrality from both angles. With the material support statute upheld in Holder and similar measures undertaken by other countries that could criminalize the provision of humanitarian relief, we see a return to the siege mentality, where it is acceptable to deprive the civilians of the "enemy" of life-saving assistance in pursuit of conflict goals. At the same time, new obligations on organizations to report on "terrorist" activities or diversion of assistance seek to co-opt humanitarian actors into the efforts of one party, and in the process undermine their neutrality in the eyes of the other. The result is of course the same: people on one side of the conflict have no access to humanitarian relief.
II. LEGAL FRAMEWORK
The United Nations current counterterrorism regime is framed by Security Council Resolution 1373, passed on September 28, 2001. (5) Under this resolution, U.N. member states are required to refrain from providing any form of support to terrorist groups and individuals, and to implement a number of counterterrorism measures. Among these, states must ensure that none of their own funds are used to support terrorist activities. They must also criminalize a range of acts connected with terrorism, including not only carrying out terrorist acts, but providing resources or material support to terrorist groups. This language ("material support") is reproduced in many national criminal laws, as well as in the EU Council Framework Decision, which introduces a common definition of terrorism and of acts which should be criminalized in EU member states. (6)
Supplementing this are sanctions regimes. These regimes target particular actors considered a threat to international peace and security, such as those concerning Somalia, originally established by UN Security Council Resolution 733 of 1992, and concerning Afghanistan, based on UN Security Council Resolution 1267 of 1999. …