Magazine article Forced Migration Review

Darfur and the Flaws of Holder V HLP

Magazine article Forced Migration Review

Darfur and the Flaws of Holder V HLP

Article excerpt

When US Chief Justice Roberts handed down the judgment in Holder v Humanitarian Law Project (HLP), he revealed the Supreme Court's tragic under-estimation of the potential of engagement with non-state armed groups.

In Holder ? HLP the Supreme Court was asked to respond to complaints filed in 1998 and 2003 by several humanitarian organisations who felt that the US legal code's prohibitions under the Material Support statute (18 U.S.C § 2339B) were overly vague and violated the right to freedom of speech and association, protected under the First Amendment to the US Constitution:

"Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life."

Rejecting the humanitarian organisations' claims, the Supreme Court found that the prohibition of engagement with "terrorist" organisations, even for humanitarian purposes, was entirely constitutional. In doing so it denied the possibility of assistance to millions of victims of human rights abuses. This assistance may come in many forms, for example, in advice provided to the leaders of non-state armed groups (NSAGs) regarding the peaceful resolution of disputes, or the negotiation of humanitarian agreements with NSAGs, such as that agreed between the Justice and Equality Movement (JEM), a Darfurian NSAG, and UNICEF in July 2010.

In most cases, under international law NSAGs cannot become parties to treaties which codify humanitarian and human rights norms. Although technically states are required to enforce their treaty obligations throughout their territory, in reality NSAGs often exert de facto control over swathes of territory, removing millions of people from the protection offered by these legal instruments. Humanitarian agreements are a means to bypass this legal obstacle by allowing NSAGs to voluntarily subscribe to these norms.

For example, under the terms of the JEM-UNICEF agreement, the JEM agreed to abide by the requirements of a number of national and international human rights instruments prohibiting the use of child soldiers and protecting children generally. In another prominent example, many NSAGs have signed a Deed of Commitment which contains provisions akin to those found in the Ottawa Landmine Treaty, prohibiting the use of antipersonnel mines and agreeing to conduct and facilitate de-mining activities.1 Although the statute is unlikely to be strictly enforced, Holder ? HLP implies that the humanitarian workers and human rights advocates who negotiate these agreements may be subject to prosecution in the US under the 'material support' statute. Why?

Fungibility

The Supreme Court's first argument focuses on the supposed fungibility (i.e. ability to be traded or converted) of all forms of 'assistance' provided to "terrorist" organisations, including advice and training. The argument goes that any assistance frees up resources which can then be used for violent ends.

This argument does not withstand closer scrutiny. Humanitarian agreements often involve a significant commitment of personnel and resources. For example, under the terms of the JEM-UNICEF agreement, JEM agreed to designate a senior official to be responsible for oversight of its implementation, another official to liaise with the UN, and a number of officials to serve as emergency contacts for the UN and other external actors. It also agreed to facilitate monitoring of the agreement and to report periodically on its implementation.

As JEM is estimated to have fewer than 5,000 fighters, these officials constitute a significant proportion of its high-level personnel. Additionally, JEM guaranteed full security and access for UNICEF staff: another drain on resources and personnel.

Similarly, Geneva Call reported in 2007 that, out of 35 signatories to its Deed of Commitment, 29 fulfilled reporting requirements. …

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