In some parts of the world such as Afghanistan, Iraq, Somalia and until recently Sri Lanka, it is almost impossible for humanitarian and aid organisations to provide assistance to communities without dealing through groups that some characterise as freedom fighters and independence movements, but that the US government calls terrorist organisations. And such groups are more often than not key negotiators in trouble spots.  But a US Supreme Court ruling handed down a few hours ago has now made it clear that if aid and relief workers do deal with such groups they could be charged with the serious offence of aiding a terrorist organisation.

In a 6-3 ruling, the court in Holder v Humanitarian Law Project has affirmed as constitutional an Obama Administration law that makes it a federal crime to “knowingly provide material support or resources to a foreign terrorist organisation”.  These organisations include the PKK in Kurdistan and the Tamil Tigers in Sri Lanka.

The Humanitarian Law Project is a group made up of retired jurists, lawyers, doctors and aid workers. They wanted to “train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes”, and to “teach PKK members how to petition various representative bodies such as the United Nations for relief”.  The group wanted to similarly assist the Tamil Tigers.

Despite the Humanitarian Law Project’s desire to spread peace not violence, the majority, led by Chief Justice John Roberts, said that giving such “support frees up other resources within the organisation that may be put to violent ends. It also importantly helps lend legitimacy to foreign terrorist groups — legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds — all of which facilitate more terrorist attacks.”

But this logic was undermined in a powerful dissent from Justice Stephen Breyer, who was supported by Justice Ruth Bader Ginsburg and President Obama’s recent appointment to the court, Justice Sonia Sotomayor.  Breyer said that the majority view will mean well-intentioned people who want to help organisations lay down their arms and negotiate, or who work with organisations to get needed aid to individuals, could be turned into criminals.

So, he argued, it is “only when the defendant knows or intends that those activities will assist the organisation’s unlawful terrorist actions. Under this reading, the government would have to show, at a minimum, that such defendants provided support that they knew was significantly likely to help the organisation pursue its unlawful terrorist aims,” Breyer said.

This ruling has already sparked concern from aid groups and former US President Jimmy Carter, who has observed that the “vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom”.

It is hard to see how the Obama Administration’s foreign policy objectives are served by this law and the US Supreme Court’s view of it.  Bringing warring parties to the negotiating table and using them to help deliver aid is a desirable means of reducing conflict.  It has now just got a whole lot harder to do that.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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