IEEPA's override authority: potential for a violation of the Geneva Conventions' right to access for humanitarian organizations?

AuthorWhite, Jennifer R.
PositionInternational Emergency Economic Powers Act

TABLE OF CONTENTS INTRODUCTION I. IEEPA AUTHORIZES A BREACH OF INTERNATIONAL HUMANITARIAN LAW A. Impartiality and the Rights of Impartial Humanitarian Organizations under the Conventions B. Conflict of IEEPA Restrictions with Convention Rights II. IMPLICATIONS OF IEEPA's OVERRIDE AUTHORITY A. Application of the Charming Betsy Canon B. Domestic Legal Implications of a Violation of the Geneva Conventions C. International Legal Implications of a Violation of the Geneva Conventions D. Policy Implications of a Violation of the Conventions CONCLUSION INTRODUCTION

Armed conflict creates the need for humanitarian aid. International law creates the mechanisms by which parties provide humanitarian aid and creates obligations in connection thereto. The 1949 Geneva Conventions (1) (the "Conventions") form the humanitarian backdrop against which war is waged. The Conventions establish an impartiality standard in that they grant to humanitarian organizations the right of access to non-combatants during armed conflict. (2) In the United States, the International Emergency Economic Powers Act ("IEEPA") (3) establishes a Presidential determination standard for humanitarian organizations acting in situations of armed conflict that allows the President to restrict and prohibit humanitarian organizations' activities without considering their impartiality. (4) Current circumstances present the need for immediate impartial humanitarian aid in armed conflicts to which the United States is a party. (5) Contemporaneous use of IEEPA creates an imminent risk of a violation of the Conventions. (6)

The Conventions create a guarantee of protection and care to noncombatant military and civilian participants in an armed conflict (7) and a right of access for impartial humanitarian organizations in order to facilitate that protection and care. (8) Common Article 3 states than an obligation exists to provide care. (9) This obligation to provide care has been acknowledged to allocate to humanitarian organizations the right to provide this care. (10) Any party to a conflict that is also a signatory (11) to the Conventions (a "Party" under the Conventions terminology) (12) must ensure that it fulfills the guarantee of protection and care and that these organizations have access to noncombatants in need of aid. (13) As a signatory, the United States bears this obligation whatever the other party's or parties' status is with respect to the Conventions. (14)

The Conventions specify that impartial humanitarian organizations have both a general right of access to aid non-combatants, (15) and specific duties to ensure and implement the provision of goods such as food, medical supplies, and other articles necessary for the preservation of life. (16) The duty arises in part when the Parties delegate their obligations (17) either by formal agreement or by default, and in part when an organization exercises its right to access which, once exercised, results in an obligation to comply with the Conventions' demands. (18) Humanitarian organizations subject to the United States' jurisdiction (19) routinely export items in connection with their operations from the United States. (20) These organizations also use donated funds to purchase goods within the zone of conflict. (21)

The President can use IEEPA to broadly limit these activities, restricting humanitarian organizations and inhibiting the United States' performance of its obligations under the Conventions. (22) Congress passed IEEPA in 1977 to grant to the President broad authority to prohibit or otherwise restrict monetary and other property transactions involving a foreign person during times of national emergency and in similar situations. (23) Humanitarian donations of goods are exempt from this authority. (24) Congress delegated to the President the ability to override the exemption under certain circumstances, such as where the President determines the donations are in conflict with national security, involve coercion, or would endanger U.S. military. (25) The exemption is intended to balance individual donors' interests with those of the government during a time of emergency. (26) The override authority grants such wide discretion to the President to place prohibitions or restrictions on humanitarian aid that the safety net created by the Conventions can be erased. (27) IEEPA does not require that the President satisfy any specific independent criteria in order to override (28) as long as he has declared a national emergency. (29) When the national emergency coincides with an armed conflict involving the United States, the President's use of the override authority is both politically detrimental and a potential violation of the United States' international obligations. (30)

The United States' current military actions threaten the guarantees of the Conventions. The invasion of Afghanistan in October 2001, the war in Iraq beginning in early 2003, and the ongoing and imprecise war against terrorism each requires adherence to the humanitarian rules of the Conventions. (31) The George W. Bush administration has stated that it considers both Iraq and Afghanistan to be supporting terrorist activities, (32) creating a likelihood of broad use of the override authority in each conflict. Neither country has sufficient resources to maintain its population. (33) The Conventions' minimum requirements for humane treatment require provision of certain goods such as medical supplies that often are not available in the location of a conflict. (34) An impartial humanitarian organization carrying out its obligation to ensure the rights of a non-combatant needs to furnish goods from outside the zone of conflict. When the organization brings these needed articles from the United States the supplies come under the purview of IEEPA and therefore are subject to the override authority. (35)

For example, consider a United States charity that provided food, medical care and tents for displaced persons in Iraq during the period of active military activity between the United States and Iraq. The Conventions apply to this situation of armed conflict. (36) The organization, therefore, has a right of access to all non-combatant Iraqis and certain obligations to provide aid (37) as long as its actions are impartial. The frequent acts of terrorism (38) combined with the significant humanitarian needs in Iraq raise the distinct possibility that members of terrorist organizations need aid. It is unlikely that the organization could both satisfy the requirement of impartiality--i.e., provide food and care without discrimination to those in need--and at the same time avoid aiding those whom the United States might deem terrorists. This situation can trigger, (39) and has triggered, (40) application of the override authority.

Executive Order 13,224, (41) issued on September 23, 2001, is a recent use of the override authority in connection with an armed conflict to which the United States is a party, and provides an example of IEEPA's breadth. The President attached to this Order a list of entities affirmatively subject to the prohibitions and restrictions authorized by Section 1702(b)(2). (42) The list includes any persons who provide support to or associate with the persons listed or otherwise designated in the Order. (43) The Order permits the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General, to add to the list at his discretion. (44) The Order also includes a specific reference to humanitarian donations and prohibits donations to any person designated by, or later included within, the Order. (45) The Order applies in all situations of armed conflict, including Afghanistan and Iraq at the writing of this Note, and restricts humanitarian aid with such breadth that the United States could be in breach of its obligations under the Conventions. (46)

This Note argues that, should the President exercise his override authority to prohibit or restrict the donation of humanitarian articles during an armed conflict involving the United States, the resulting prohibition or restriction would cause the United States to violate its obligations under the Conventions. This Note does not assert that the United States should not have the ability to put in place controls to prevent terrorists from benefiting from donations of funds and other humanitarian items; (47) instead, it asserts that domestic law must tread as lightly and narrowly as possible where a widely accepted multilateral treaty exists and that domestic law ought not to override humanitarian law (48) under the later-in-time rule unless absolutely necessary. IEEPA's breadth permits, and the war on terror and related conflicts are likely to encourage, restrictions and prohibitions that disrupt the balance that the Conventions demand. Part I contends that when the President exercises the full power granted to him in the override authority, such action violates international law because the restrictions permitted by IEEPA conflict with humanitarian organizations' right of access under the Conventions. Part II discusses the implications of a violation of the Conventions on both the international and domestic planes. Part II demonstrates that an analysis under the Charming Betsy (49) doctrine does not necessarily dispose of the question, and that Congress's established ability to override treaties under the later-in-time doctrine is inapplicable in this case, where IEEPA's lack of specificity creates legal difficulties and political dilemmas for the United States.

  1. IEEPA AUTHORIZES A BREACH OF INTERNATIONAL HUMANITARIAN LAW

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