I recently encountered an interesting blog post written by Roger Alford on opiniojuris.org regarding the recent Supreme Court decision of Holder v. Humanitarian Law Project. First of all, as I'm always a bit amused anytime one of the parties to a case has a name that reeks of goodwill, (it's like going up against an organization called Society for the Promotion of World Peace, Chocolate and Every Nice Thing), the title immediately caught my attention. As a recent graduate of a prestigious humanitarian law program in Geneva, I was surprised I hadn't heard anything about this case. However, there might be a good reason that none of my professors had wanted to mention this case, as it proves, evidently, that
HUMANITARIAN LAW IS DEAD.
Or at least that seems to be the conclusion of the illustrious U.S. Supreme Court. In fairness to Holder, that brave defender of humanity against the wiles of the Humanitarian Law Project (the "HLP"), I had decided to read the entirety of the case and see if indeed the HLP was deserving of the warm, fuzzy feelings evoked by its name. In the case, the Court held that instructors within the HLP (think Geneva Call without the fancy Swiss headquarters). could not train PKK/LTTE members about humanitarian law principles or instruct the PKK/LTTE on how to petition representative bodies (like the U.N.) to settle its disputes peacefully rather than using armed conflict.
This startling conclusion flies directly in the face of Article 1 Common to the Geneva Conventions of 1949, which states that:
"The High Contracting Parties (yes, the U.S. is actually a party to this treaty) undertake to respect and to ensure respect for the present Convention in all circumstances."
The Geneva Conventions have further provisions which require states to disseminate humanitarian laws not only to their armed forces, but to their civilian population as well (See Article 47 GCI, Article 48 GCII, Article 127 GCIII, and Article 144 GCIV), though this would likely apply only to dissemination within the domestic arena (which would not extend to members of the PKK/LTTE living outside the U.S., as they are prone to do). However, the text of Article 1 Common would suggest that beyond its domestic borders, the U.S. still has a duty to ensure respect for the Conventions.
As an American law student from the great state of Texas, there are many times that I've been called out by my classmates and professors to explain why the U.S. chooses to do things the way it does. Usually I can find a fairly sensible justification, whether or not I personally agree with it, but this case is really beyond my sugarcoating powers.
Let's not focus too much on what the Geneva Conventions themselves require the U.S. to do, since U.S. courts have never been very friendly towards the direct implementation of international treaty law. Instead, let's take a look at the federal law which was preventing the HLP from training PKK/LTTE members how to use humanitarian law and human rights courts as an alternative to armed conflict.
This would be 18 U.S.C. §2339B(a)(1), which states that it is a federal crime to knowingly provide material support to a terrorist organization in the form of (I'm just going to list my favorites here) weapons, explosives, financial services, safehouses, lethal substances, and...EXPERT ADVICE or TRAINING. The only types of support specifically excluded from the list are medicine and religious training.
It's been a few years since first-year contract law, but even I remember one of the cardinal principles of statutory interpretation is ejusdem generis. Ejusdem generis refers to situations where a statute lists a number of things of the same general category, but then allows other things to be included so long as they are of the same kind as those things already listed (I apologize to my former contracts professor for butchering the law on this point).
Now this is not exactly the situation here, as "expert advice" and "training" are already included on the list, but in interpreting the scope of these two terms, I think it is fair to look at the rest of the list to see what kind of training the legislators were so concerned with when drafting this provision. It seems to mean that the other prohibited forms of support refer to arming, financing, sheltering or training a terrorist organization in such a way as to facilitate their terrorist activities.
This would make sense considering that the provision of medicine and religious materials, meant to protect the mental and physical well-being of members of terrorist organization, is allowed even though it may in some indirect manner facilitate terrorist activities by improving the lives of individual terrorists (whereas training them in alternative dispute resolution would be unlikely to provide any direct benefit to individuals). So why didn't the court allow for the dissemination of materials and information that would presumedly discourage terrorism (and thus constitute acts which would not fit into the list of prohibited acts according to the principle of ejusdem generis)? The Court ruled that intent didn't matter and that the HLP's activities clearly fell within the realm of "training" as prohibited by the statute.
While the PKK is not the Taliban, this opinion does more to undo the much-heralded "hearts and minds" campaign against the roots of terrorism in this troubled region than any speech that Osama bin Laden could give. Justice Breyer's dissent confirms this point. There is simply no justification for interpreting the statute to prevent the humanitarian activities of the HLP. What this organization aims to do, if it were successful, would be to give terrorist groups the opportunity to pursue legal avenues to further their causes.
Obviously it would be overly idealistic to believe that one training course on protecting civilians during bombing campaigns is somehow going to cause all terrorists to suddenly drop their weapons and run for the ICC to turn themselves in (and simultaneously create a slew of job opportunities in international criminal law for students such as the authors of this blog), but there is a potential that some good could be achieved.
Geneva Call has proven time and time again that non-State armed groups can be persuaded to commit to following humanitarian law principles, so there is no reason to believe that HLP's efforts will be in vain, and it is simply disheartening that their good intentions were struck down with such disregard. The U.S., of all countries, has the most to gain from providing non-violent alternatives to terrorist groups. My only hope is that Congress will see this decision for what it is and revise its statute to include "training for the peaceful resolution of disputes and for adherence to the laws of armed conflcit" to its list of exclusions alongside medicine and religious materials. Penicillin and the Koran are great, but what I would really like to see is groups like the PKK carrying around a copy of Max Plank's Encyclopedia of International Law.
Until next time,
Andrea Joy
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