According to David Cole, a lawyer for the organizations and individuals who challenged the law, the Court’s decision allowed for, “human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists,” (Egelko, The Chronicle).

Background: 

The Supreme Court’s June ruling was an extension of already existing bans on “material support” for foreign terrorists that began under Clinton in 1996 and was expanded by Bush in 2001 with the USA Patriot Act.  The parties in this specific case were HOLDER, ATTORNEY GENERAL, ET AL. v. HUMANITARIAN LAW PROJECT ET AL., with the plaintiffs case reading as follows:

As the litigation now stands, plaintiffs challenge §2339B’s prohibition on providing four types of material support—“training,” “expert advice or assistance,” “service,” and “personnel”—asserting violations of the Fifth Amendment’s Due Process Clause on the ground that the statutory terms are impermissibly vague, and violations of their First Amendment rights to freedom of speech and association. They claim that §2339B is invalid to the extent it prohibits them from engaging in certain specified activities, including training PKK members to use international law to resolve disputes peacefully; teaching PKK members to petition the United Nations and other representative bodies for relief; and engaging in political advocacy on behalf of Kurds living in Turkey and Tamils living in Sri Lanka.

Two sides to every story:

On one side we have those who rebuke the Court’s ruling and fear its negative repercussions, such as former US President Jimmy Carter, whose own organization that has had to interact with US designated terrorist group Hamas in its Mideast diplomatic efforts, could come into question.  Carter has commented that the ruling, “threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence,” (Egelko, The Chronicle).

On the other side we have those who take the more pragmatic perspective and see the Court’s ruling as positive in the way of shutting off channels of support, whether explicit or implicit and intentional or not, to terrorists.  Putting a burden of proof on NGOs and civil society actors to prove or ensure where and how their aid is being utilized in an attempt to proactively negate negative consequences of any kind of aid to these groups.  Annemarie McAvoy, a Fordham law professor and former federal prosecuter, articulated this point of view when she stated that, “by helping the terrorists, even tangentially, they’re freeing up the terrorists to focus on other things, such as violent attacks,” (Egelko, The Chronicle)  This sentiment was mirrored in the stance and comments of Solicitor General Elena Kagan (Obama’s current nominee to the court) that, “what congress decided is that when you help Hezbollah build homes, you are also helping Hezbollah build bombs,” (Egelko, The Chronicle).

Discussion:

Is the world so black and white?  Does civil society participation and assistance towards advocacy and training in the use of international law to resolve disputes peacefully and non-violently, the peaceful teaching of international human rights law, and advising on petitioning to the United Nations and other representative bodies for relief, really amount to “material support” of terrorists? 

When our class, Peacemaking and Peacebuilding, discussed this issue one of the comments made by a student during the discussion was that, when has ignoring a group or non-engagement with a group, terrorist or not, solved anything, besides cutting off dialogue?

Some of my own questions and those raised by other students in dialogue with our professor regarded:

The creation and expansion of “the other”—are we in the US making all other, the other?

Ghosts of McCarthyism—is the US defining a narrow black and white in global politics and affairs, in humanitarian assistance, and in peacemaking and peacebuilding?

Who can and does define “terrorism” and “terrorists”—is systemic and structurally entrenched monoculturalism at play in the Global War on Terror and its subsequent policies?

When all else fails—is this further security measure necessary to put the burden on organizations and individuals to prove the authenticity, legality, and constructiveness of their work, in order to take the world one step closer to safety from terrorists?

The question lurking in my mind regarding the Court’s ruling is, will these restrictions on “material support” via organizations and private individuals be applied equitably?  Or, will only the grassroots organizations and projects attempting to give legitimate aid suffer, while those with a recognizable name and friend on Capitol Hill find the convenient loopholes to slip through?

Furthermore, when this discussion came up in our class, October 26^th, our professor couldn’t help asking us why when he first introduced this Supreme Court case and ruling to us the week prior, none of us had even heard of it?  Why had we, as global affairs students studying and keeping on the verge of international news, failed to notice this issue that occurred over the summer, which is significant to activities and participation in our field?  It is apparent that the Supreme Court’s ruling in Holder vs. Humanitarian Law Project has struck a chord of fear with NGOs and civil society who engage in peacemaking, peacebuilding, and conflict resolution, management and transformation, but what could the broader implications of such restrictions be? 

Will Big Brother bully out those truly interested in helping make the world a more peaceful place, or will civil society rally and enlighten the powers that be regarding the futility of estranging constructive peace efforts?

For further information regarding this Supreme Court case and the debate it has sparked please take a look at:

“The Supreme Court goes too far in the name of fighting terrorism.”  The Washington Post © 1996-2010.  22 June 2010.  http://www.washingtonpost.com/wp-dyn/content/article/2010/06/21/AR2010062104267.html. 

Price, Michael.  “National Security Watch: Mens Rea and Material Support of Terrorism.”  The Champion Magazine; The National Association of Criminal Defense Lawyers (NACDL).  August 2010.  http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923/ae3a72c354740766852577c100550278?OpenDocument. 

The Humanitarian Law Project,  http://hlp.home.igc.org/ .  (Related headlines and articles).

June started off with a plane crash of an Airbus flying from Rio de Janeiro to Paris. President Obama went to Cairo to make a speech about Muslims and the U.S — some people thought it was pretty good while others had more measured reactions. North Korean leader Kim Jong Il, widely reported to be sickly with cancer, tapped his youngest son Jong Un as successor, and his sushi chef said he’s just like his dad. Palau decided to accept a few of the Uighur Guantanamo detainees, and a few of them were also taken in by Bermuda. The Bermudans, however, weren’t so happy about how that happened. A little later, Iran had a Presidential election. Mahmoud Ahmadinejad won under most likely fraudulent circumstances because more people voted in some towns than existed there. People protested, and Twittered, and protested some more, with violent repercussions. New York Times reporter David Rohde escaped after 7 months of being held captive by the Taliban in Afghanistan. In a seemingly pro-feminist move (but actually to the chagrin of many feminists), Nicolas Sarkozy supported a ban of the burqa in France. In Honduras, President Manuel Zelaya was ousted in a coup, and the U.S. military finally withdrew troops from Iraq to focus more instead on efforts to curb Taliban influence in Afghanistan.

In Urumqi, China, riots broke out between the majority Han Chinese and the minority Uighurs, and ethnic tension has remained heightened since, including recent claims that Uighurs are attacking Han Chinese with HIV infected needles. Two hotels were bombed in Jakarta, Indonesia. Hillary Clinton went to the Congo and brought attention to the use of rape and sexual violence as a tool of war (against men, too). Bill Clinton flew to North Korea and saved journalists Laura Ling and Euna Lee, who had been captured in March and sentenced to 12 years of hard labor. It was a good week to be a Clinton.

Former President of the Philippines Corazon Aquino died. RIP, Cory. In Taiwan, there was a really big typhoon. Burmese democracy leader Aung San Suu Kyi’s trial was held over the question of whether or not she violated the terms of her house arrest when a crazy American guy swam through a lake to visit her on a supposedly divine mission. She was found guilty. The American was freed (but remained crazy). Everybody found out that private contractor organization Blackwater (now Xe) was hired by the CIA to assassinate targets. Scotland allowed the one convicted Lockerbie bomber to return to Libya because he is dying of cancer. Everybody was really, really mad, especially because it was probably because of oil. Colombian President Alvaro Uribe came down with the H1N1 virus. The Darfur conflict was reported as coming to an end. Afghanistan held Presidential elections which showed incumbent Hamid Karzai leading, but like Iran, this was probably also fraud. Unlike Iran, they’re actually recounting votes and throwing out bad ones.

Hopefully, that’s refreshed your mind with a whirlwind of memories from the past three months. But here are a couple of things that perhaps you might have missed:

China reversed its one child policy, but only in Shanghai.

Cambodia set out to host a “Miss Landmine” pageant to challenge traditional beauty standards by promoting a pageant for landmine victims. The pageant was quickly banned.

A Ukranian polka band came up with this cover of Katy Perry’s “Hot n Cold.”

Some of the lawsuits over harmful pesticide effects made by Nicaraguan farmers for Dole Food Co. turned out to be fraudulent (involving faked sterility tests, among other indicators), effectively casting doubt on all the other farmers who might have actually been harmed by the pesticides.

China tried to use electroshock therapy to cure teens of Internet addiction. The practice was quickly banned.

Canada granted refugee status to a white man from South Africa who claimed he was being persecuted in his native country on the basis of his race.

An IT company in South Africa ran a test to see what could send data faster: South African Internet service or a carrier pigeon. The pigeon won.

Anything missing? Of course. Drop a comment to add in any other summer global affairs news that slipped through the cracks!

We should be vigilant…

Bangladesh seeks help to repatriate Myanmar migrants

To U.S. credit, 18 of the Uyghurs were in alleged training camps in Tora Bora directly after 9-11 and were caught in U.S. bombing. Given that Tora Bora was the area that U.S. forces were targeting in their search for enemy combatants, it makes since that the Uyghurs would be detained for questioning. However, it was clear from the beginning that they were in Tora Bora seeking refuge from and training to combat Chinese oppression–if shooting a single AK-47 can count as training. They should have been released then.

Instead, they have lived a life of oppression under the Chinese, a life of squalor in Tora Bora and a life of abuse in Guantánamo prison. Those in Albania live in a refugee camp where armed guards patrol the parameters, and where they have said they find life much worse than in Guantánamo. Those in Guantánamo wait for their case to be reviewed, again, under the Obama administration. Their lawyers have said there is “literally” nothing left to review.

It all has to end soon, but the only question is “Where will they go?” China wants them back, but that is a no-go due to their oppressive record. No third country has stepped forward to volunteer to take them. And the U.S. has yet to step forward and make good on the September order. I just hope that they end up somewhere better than where they have been—and soon.

For more information on the Uyghurs in China, visit the Uyghur Human Rights Project where you will also find information on the Uyghurs in Guantánamo. For more information on the Uyghurs in Guantánamo, please see author and journalist Andy Worthington’s article.

Photo via CNN

Facing persecution as a minority ethnic group in Myanmar, the Rohingya refugees have been fleeing their homeland since the 1970s. Some have ventured to Bangladesh, languishing in refugee camps for over 17 years. Still others have taken the riskier route to refuge traveling by sea to Thailand and Malaysia. Reports this week have captured the Thai government in an act that in my opinion can be deemed as refoulement. Under international law there are many protections afforded to refugees, one of the most fundamental is the principle of non-refoulement. This principle of customary international law (outlined in Article 33 of the 1951 U.N. Refugee Convention) “prohibits States from returning a refugee or asylum-seeker to territories where there is a risk that his or her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion.” (Source: UNHCR). While the Thai government isn’t forcing the Rohingya refugees back to Myanmar, they are rejected from their border and forcibly taken out to sea where options are limited to death at sea or returning to a nation that systematically persecutes them based on their religious beliefs and ethnic background.

Next, Dr. Pogge looked at the ways that human rights are violated through: events causally traceable to a human agent; active agency; official capacity; or with the intention or ability to foresee that actions will result in a human rights deficit.  Dr. Pogge recognizes that local factors have some influence on the state of poverty in many nations, but makes the argument that the global institutional order also plays a role in perpetuating poverty.  Ultimately, he calls for the structural reform of global institutions like the World Bank, WTO, and IMF in order for human rights to be fulfilled in a different international order.

Whether or not one agrees with Dr. Pogge he brings up an interesting idea of institutional reform, and as we approach the 60th anniversary of the Universal Declaration of Human Rights it begs the question whether the international laws and accompanying institutions set up are enough to progress toward human rights fulfillment or whether the system needs modifications.

The situation in Darfur is bleak. At least 300,000 people have died and roughly 2.5 million have been displaced since the conflict started in 2003. The refugee camps are plagued by insecurity; there have been widespread reports of rapes of civilians, attacks on aid workers and other violence. There is strong evidence that government-backed militias known as the janjaweed are behind much of this brutality. So the supporters of the ICC’s case against Bashir—such as human rights groups and many Western nations—are more than justified in their desire to bring him to trial.

However, unless the international community is prepared to unilaterally send a substantial number of heavily armed troops to the region to quell the fighting and provide security for civilians—an extremely unlikely scenario—then the next best option is to engage the Sudanese government and the numerous rebel factions in peace talks, and to work on deploying in full the 26,000-member U.N.-AU peacekeeping force, known as UNAMID, authorized by the Security Council in 2007. The Sudanese government has made it clear that it will not support either initiative if Bashir is indicted, and has even threatened to increase violence against civilians, humanitarian workers and the 10,000 peacekeepers that have already been deployed.

Tanzanian President Jakaya Kikwete, the current AU chairman and one of the continent’s most respected leaders, made a strong case for deferring Bashir’s case in his address to the U.N. General Assembly on September 23. He argued that an indictment would “complicate the deployment of UNAMID and the management of the humanitarian crisis in Darfur.” He rejected the notion that deferment meant “condoning impunity,” asserting, “We are simply concerned with the best possible sequencing so that the most immediate matters of saving lives and easing the suffering of the people of Darfur are dealt with first. Getting the support and cooperation of the government of Sudan is a matter of essence.”

Delaying Bashir’s case does not mean that he will never face justice. Given the volatility of Sudanese politics, Bashir’s position will undoubtedly weaken—especially if he is not able to use the ICC case to drum up nationalistic support. Some may point out that past African despots were allowed to escape justice by going into exile. But this pattern is changing. The Liberian civil war ended when President Charles Taylor agreed to resign and take refuge in Nigeria in 2003. He spent three years in comfortable exile before being arrested and taken to The Hague for trial before the Special Court for Sierra Leone. His arrest came after Liberia was on track to peace and stability.

Convincing the Security Council to invoke Article 16 may not be as difficult as it appears. Among the permanent five, China and Russia have already expressed support for a deferment. France and Britain have indicated that they would vote in favor if Sudan makes certain concessions. South Africa and Libya have already declared their support, and it is reasonable to expect Vietnam to vote with China, and Indonesia, the world’s most populous Muslim nation, to also back a delay. Ironically, the U.S., which has refused to become a party to the ICC, may be the most recalcitrant on this issue. It abstained from a July 31 vote on renewing UNAMID’s mandate due to language simply noting the AU’s objections to Bashir’s indictment.

Bashir’s case is not a question of justice versus peace. The priority in any conflict must be the security and well-being of civilians. The Security Council should consider carefully whether this priority is best served by indicting Bashir. There is a time for prosecuting the perpetrators of the crimes in Darfur, and that time will come when the fighting has stopped.