Holder v. Humanitarian Law Project: implications for humanitarian action: a view from medecins sans frontieres.

• Author: Mackintosh, Kate

1. INTRODUCTION

   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.

2. 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. The Somalia regime targets Al-Shabab and associates, and the Afghanistan regime targets Osama Bin Laden and A1-Qaeda. (7)

   The implementation of these resolutions has an unforeseen impact on humanitarian organizations in two principal ways. First, humanitarian organizations have to consider whether their humanitarian activities could qualify as "material support" to terrorist groups and thereby expose them to criminal liability, as the training activities of the Humanitarian Law Project in Holder were found to do. Second, in order to ensure that no government funds are used to support terrorist activities, many states have introduced donor contracts that require recipient organizations to cooperate with counterterrorism efforts to a greater or lesser degree. The implications of both aspects are discussed further below.

3. PRACTICAL EFFECTS

   How can humanitarian organizations ensure that they do not run afoul of criminal law provisions prohibiting the provision of material support to terrorists? Could medical aid or practical arrangements that are necessary to run humanitarian operations, such as renting houses and buying locally supplied goods, make staff of humanitarian organizations criminally liable? These are worrying questions, made more troubling by the Holder ruling that no intent to support terrorism is required for prosecution. The answer relies on unpacking the law of each national jurisdiction in which the organization operates, looking at such factors as the nationalities of the field staff and the managers in headquarters, the state in which the head office is registered, and the extra-territorial jurisdiction for terrorist crimes claimed by different states.

   Until recently, it seemed that medical aid was exempt under U.S. law from these provisions and could not count as support to terrorism under any circumstances. This is consistent with customary international humanitarian law, which provides that all victims of conflict, including sick and wounded combatants, have a right to medical care. (8) While it is clear that allowing sick and wounded fighters of either side to receive medical care may offer a military advantage to their party by enabling them to rejoin military efforts, this advantage is outweighed by the overwhelming demands of the principle of humanity.

   A useful decision on this...