Criminalizing humanitarian relief: are U.S. material support for terrorism laws compatible with international humanitarian law?

AuthorFraterman, Justin

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 materials. 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...

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