Criminalizing humanitarian relief : are U.S. material support for terrorism laws compatible with international humanitarian law ?
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International law and politics, Vol. 46, no. 2, winter 2013, p. 399-470
Justin A. Fraterman
In the wake of the U.S. Supreme Court’s decision in Holder v. Humanitarian Law Project, there has been much discussion about the potentially chilling effect that U.S. material support laws may have on the provision of humanitarian assistance in both disaster and war zones. This Article examines these issues in depth, providing an analysis of the material support legal regime and the Humanitarian Law Project decision, the regime’s potential legal impact on humanitarian organizations, and the interaction between these laws, international law, and U.S. constitutional law. More specifically, this Article advances a number of arguments: First, it posits that the material support laws pose a serious threat to the provision of much needed humanitarian relief. Next, it argues that the United States has a clear obligation under international humanitarian law—more specifically under the Geneva Conventions—to refrain from interfering with the provision of humanitarian assistance in certain circumstances. As a result, the material support laws as applied to humanitarian relief organizations place the United States in violation of its international legal obligations. The Article then considers the impact of this conflict as a matter of U.S. domestic law, looking at the literature and jurisprudence on self-executing treaties to examine whether the Conventions are judicially enforceable in U.S. courts. In doing so, it asserts that some provisions of the Conventions could arguably provide humanitarian workers and organizations facing criminal prosecution with a defence against allegations of providing material support. Finally, the Article 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.