Delegitimizing Civil Society: Why the Supreme Court Got It Wrong in Humanitarian Law Project

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Delegitimizing Civil Society: Why the Supreme Court Got It Wrong in Humanitarian Law Project

(American Constitution Society) Days before Secretary Clinton urged foreign governments to promote rule of law through an independent civil society; the U.S. Supreme Court struck a blow to American civil society’s commitment to international human rights.

In Holder v. Humanitarian Law Project (HLP), the Court ruled it is unlawful to train organizations designated as terrorist on how to resolve their disputes through peaceful means. Allowing Americans to provide training in nonviolent conflict resolution, the Court reasoned, would legitimize terrorist organizations.

The outcome is quite the opposite. Rather than bolster national security, the HLP ruling ultimately undermines America’s leadership in the international community. Take for instance Secretary Clinton’s statements on July 3, 2010 at the Community of Democracies. Speaking to civil society leaders and government officials from across the world, Secretary Clinton highlighted the important role an independent civil society plays in promoting democracy, combating corruption, and countering terrorism. She aptly noted “[f]reedom of association is the only freedom defined in the United Nations declaration of human rights that does not enjoy specific attention from the UN human rights machinery. That must change.”

But her call to action fell on deaf ears in America’s highest court. As Secretary Clinton devoted an entire speech in support of freedom of association and human rights, the U.S. Supreme Court significantly curtailed such rights for Americans. American nongovernmental organizations, former diplomats, and advocates are unable to work toward persuading terrorists to put down their guns and seek redress by peaceful means.

The plaintiffs in HLP sought an injunction against criminal prosecution for training the Kurdistan People’s Party and the Tamil Tigers on how to use international law to resolve disputes peacefully. Both organizations are designated as terrorist by the U.S. government. Through training on conflict resolution mechanisms available at the United Nations and other international bodies, the plaintiffs hoped to dissuade these groups from resorting to violence as a means of resolving ostensibly intractable conflicts.

The Supreme Court, however, decided such efforts hold no social value. According to the majority opinion, such training only legitimizes the designated groups’ terrorist activities and threatens American national security. Losing sight of the substantial First Amendment free speech and association rights at issue, the Court adopted wholesale the government’s alarmist position. Any assistance to designated organizations on how to use the United Nations’ peaceful conflict resolution process purportedly makes it easier for them to recruit members, raise funds, and ultimately facilitate more terrorist attacks.

To the contrary, prosecuting American charities seeking to persuade organizations to drop their guns and pick up their pens undermines decades of progress made in promoting human rights as a means of countering violence. Had such a policy been in place in the 1990s, Americans’ pivotal intervention in ending Ireland’s bloody conflict would not have transpired. And the Irish could still be seeking justice through the barrel of a gun.

Paradoxically, much of the Court’s reasoning relied on deference to the executive branch in the arena of foreign affairs and national security. Yet, the ruling ultimately undermines the executive branch’s efforts to shift the global conflict resolution paradigm from violence to peaceful avenues of resolving grievances. Moreover, the ruling erodes the independence of America’s civil society. Rather than serve as a beacon of leadership within the international community, American civil society’s hands are now tied. Their courageous efforts to pursue peaceful means to resolve violent conflicts have been forfeited.

Secretary Clinton’s speech in Poland, while commendable, thus will have little impact. Foreign governments will invoke the same national security arguments relied on by the Court in HLP to justify their crackdown on civil society. And foreign nongovernmental organizations will understandably question the sincerity and commitment of our government who, on the one hand encourages them to risk their lives in support of democracy, yet on the other hand prosecutes and imprisons its own citizens for advocating for nonviolence.

The Supreme Court in HLP got one thing right. The case was indeed about legitimacy – that of civil society employing international human rights as the predominant avenue for redress. This legitimacy is now in peril.

Sahar F. Aziz is a Legal Fellow at ISPU and a principal of the Law Office of Sahar Aziz. 

This article was published by ACSblog on July 16, 2010: http://www.acslaw.org/node/16530

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