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In Holder v. Humanitarian Law Project (HLP), the U.S. Supreme Court recently held that the Anti-Terrorism Act's (ATA) proscription of material support is constitutional as applied to the particular peacemaking and education activities contemplated by the HLP plaintiffs. The decision sanctioned the ATA's criminalization of certain conduct regardless of whether it is intended to further a DTO's terrorist designs or some other more laudable objective; knowledge that the recipient is a DTO or engages in terrorist activity is sufficient to trigger liability.
Despite the Court's holding, the HLP decision has left many international actors uncertain as to whether their routine humanitarian, development, or peacemaking activities, particularly in conflict situations such as Afghanistan, could result in criminal prosecution or a civil suit under U.S. law. Indeed, the decision raises serious questions about the legal limits of international actors' engagement with DTOs. Precisely which organizations, if any, are shielded from prosecution for engaging with terrorist groups to promote peace is unclear. And insofar as certain humanitarian or peacemaking organizations are immune from prosecution for certain conduct, the scope of such permissible conduct is unknown.
The uncertain scope of domestic liability is exacerbated by a lack of precision in international counterterrorism law. Various international measures call on states to prohibit a broad range of support to terrorist organizations, without requiring exemptions or immunities for humanitarian, development, or peacekeeping actors. A set of thirteen international terrorism conventions call on U.N. member states to prohibit certain terrorism support, and the U.N. Security Council has taken various measures to cut off resources from the Taliban and other DTOs. These U.N. measures are instructive as to the international limits to engagement with terrorist organizations and shed light on how HLP may be reconciled with international law.
The analysis and recommendations contained in this Essay are not intended to question the propriety of criminalizing material support of terrorist organizations. To the contrary, such prohibitions have a valuable role to play in addressing terrorist threats. This Essay instead seeks to highlight that domestic and international standards in this area remain unclear, and that greater legal precision is warranted to ensure an appropriate balance between isolation and engagement in terrorism prevention strategies. Efforts to clarify the legal standards would promote the effective prosecution of those in breach and guide the conduct of those who wish to comply.
