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. IHL provides a significant, although not unlimited umbrella of legal protection for international aid groups that are neutral in an armed conflict. If groups are neutral in the conflict (18) and effective in providing aid, IHL encourages sovereign states that are the sites of humanitarian crises to allow such assistance. (19) Moreover, other states may not pressure a state that is the site of the conflict to deny access to neutral and effective groups. (20) A sweeping construction of the U.S. material support law would jeopardize compliance with this aspect of the international legal framework. (21) Under the so-called Charming Betsy canon, courts would, where possible, interpret the statutory text to avoid conflict with international law. (22)
A more moderate interpretation of the material support statute would combine regulation of humanitarian groups with respect for international norms. International law includes not only the provisions of IHL cited above, but also legal authority such as Security Council Resolution 1373, passed shortly after September 11, that obligates states to curb the "funds" and "resources" available to terrorist groups. (23) Moreover, tailored regulation of the practices of aid groups promotes both their neutrality and their efficacy, which are prerequisites to such groups' IHL status. This tempered construction of the material support statute would harmonize IHL and Resolution 1373. It would also harmonize the statute with the purpose of relieving net human suffering that underlies humanitarian aid.
To study the interaction of U.S. law, IHL, and humanitarian aid, it helps to break down such aid into three discrete parts. The first involves the monitoring of human rights abroad done by organizations such as Human Rights First, Amnesty International, and Human Rights Watch. The second involves the advice on conflict resolution provided by a range of groups, including groups like the Carter Center. The third involves the provision of tangible assistance, including food, lodging, medical supplies and treatment, and currency.
The Court's decision in Humanitarian Law Project should have no impact on human rights monitoring, but will have an impact on both advice and tangible assistance. Human rights monitoring does not benefit the DFTO but the global public, and therefore does not constitute material support "to a DFTO" under the statute. (24) In contrast, an aid agency that provided advice to a DFTO in a forum exclusively sponsored by the DFTO would violate the statute, although advice to a larger group that merely happened to include DFTO members would again not be advice to a DFTO. An aid agency that provided tangible assistance to a DFTO either expressly pursuant to a direct agreement or tacitly through knowledge of a DFTO's diversion of tangible aid would violate the statute. Either kind of liability could chill humanitarian operations.
To address this concern, this Article suggests a regime of tailored accountability that combines a safe harbor and an expanded waiver. Congress should expand waiver authority to allow government officials to grant a waiver to a group providing tangible aid. In addition, the aid group would enjoy a safe harbor for past tacit aid provision if it subsequently instituted a comprehensive program of self-regulation. This dual approach would encourage due diligence on the part of aid groups, while avoiding an undue burden on humanitarian efforts.
In meeting these goals, a tailored accountability approach is superior to the ideas others have offered to respond to Humanitarian Law Project. Some might push for an amendment to the material support statute that categorically excludes humanitarian groups. Others might plan to assert a necessity defense grounded in international law in response to a criminal prosecution. Each of these steps would create problems. A statutory amendment would increase the risk of aid falling into the wrong hands. Courts would probably not allow a necessity defense because this defense would undermine Congress's comprehensive framework and would not be required under international law. Under the interpretation of the statute set out above, including the safe harbor of self-regulation, a truly neutral organization would have an effective statutory defense, making a necessity defense unnecessary.
This Article is in five Parts. Part I explains the Humanitarian Law Project decision. Part II discusses the parallels between Humanitarian Law Project and the critique of humanitarian aid as exacerbating conflicts; this section explains the futility formula outlined above for assessing when aid has this grim effect. Part III outlines a tailored approach to liability under the material support statute that includes both a safe harbor for effective self-regulation and expanded waiver authority. Part IV explains why this tailored approach to accountability under [section] 2339B complies with international law. Finally, Part V notes problems with other proposals, such as amending the statute to categorically exclude aid groups and allowing a necessity defense for humanitarian aid.
EXPLAINING HOLDER V. HUMANITARIAN LAW PROJECT
In Humanitarian Law Project, the Court rejected First Amendment and vagueness challenges to a federal statute, 18 U.S.C. [section] 2339B, that bars the knowing provision of "material support" to a DFTO. The statute is a broad and comprehensive ban, stemming from Congress's view that DFTOs, like state sponsors of terrorism, "are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct." (25) After Humanitarian Law Project, the statute prohibits two forms of assistance often provided by humanitarian groups: (1) in-kind contributions of goods, including food and lodging, and (2) advice on conflict resolution. (26) While humanitarian groups can seek refuge in safe harbors that will allow them to continue with much of their work, the Court's decision will affect the potential legal exposure...