Archive for June, 2010
On June 21st, 2010, the United States Supreme Court in the decision Holder v. Humanitarian Law Project upheld in a 6 to 3 decision federal statute 18 USC § 2339B(a)(1) that criminalizes “material assistance and resources” to groups considered to be terrorist organizations. “Material assistance and resources,” as understood by the federal statute, is defined in 18 USC § 2339A as:
any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials; (emphasis is mine)
Presented that way, there’s nothing that seems abnormal, in particular from an American point of view in the context of the “War on Terror.” I should also note for the sake of thoroughness that, by federal statute, it is up to the State Department to decide which group is or is not a terrorist organization, and that such a decision is open to judicial review.
The problem in the Holder decision is that the Supreme Court considers that teaching terrorist groups about international law and means to resolve conflicts in a non-violent manner can be considered as “material assistance,” as it amounts to “training” and “expert advice or assistance.”
The Humanitarian Law Project, supported by the American Civil Liberties Union (ACLU) and the Rutherford Institute, had pleaded that the federal statute was too vague and that it infringed on its First Amendment rights, to no avail. The majority opinion, written by Chief Justice John Roberts, considers in its conclusion (p. 35-36) that:
The Preamble to the Constitution proclaims that the people of the United States ordained and established that charter of government in part to “provide for the common defence.” As Madison explained, “[s]ecurity against foreign danger is . . . an avowed and essential object of the American Union.” The Federalist No. 41, p. 269 (J. Cooke ed. 1961). We hold that, in regulating the particular forms of support that plaintiffs seek to provide to foreign terror ist organizations, Congress has pursued that objective consistent with the limitations of the First and Fifth Amendments.
For Jurist.org’s summary of the decision, see here.
This decision poses several problems to NGOs and individuals who enter in contact with groups that are considered to be terrorist organizations in attempts to resolve peacefully conflicts. A particularly interesting Op-Ed piece was published in the New York Times yesterday, written by two academics, Scott Atran and Robert Axelrod, which discusses past experiences, some of them their own, in talking and exchanging with terrorist groups in hope of advancing towards peace, and how that has known some failures, but also some successes. I found their conclusion to be particularly interesting:
It’s an uncomfortable truth, but direct interaction with terrorist groups is sometimes indispensable. And even if it turns out that negotiation gets us nowhere with a particular group, talking and listening can help us to better understand why the group wants to fight us, so that we may better fight it. Congress should clarify its counterterrorism laws with an understanding that hindering all informed interaction with terrorist groups will harm both our national security and the prospects for peace in the world’s seemingly intractable conflicts.
Talking to terrorist organizations is – as the Supreme Court majority opinion and dissenting opinion, as well as Scott Atran and Robert Axelrod’s account prove – open to debate, but in certain cases, it is necessary. Terrorism, whether domestic or international, is for the majority of people not an end in itself. Terrorism thrives on poverty, frustration, hopelessness and despair. Refusing to talk at least to the most moderate members of such groups in the hope of bringing them into peace discussions, and criminalizing the teaching of international law and peaceful dispute resolution to such members, seems completely absurd, not to mention counter-productive.
A new report is currently making headlines in Europe concerning European intelligence services using information obtained through torture to combat terrorism.
Yesterday, Human Rights Watch published a report that criticized British, French and German intelligence agencies for using information obtained by their counterparts in countries that practice torture, such as Algeria, Jordan, or the United Arab Emirates. I only have had time to skim through the report, available here, but it looks like an interesting report recalling current international law on torture, and raising the legal, practical and moral questions of governments using intelligence obtained through torture in the fight against terrorism, with interesting bits on the “ticking-bomb scenario” and the “no-questions asked” approach adopted by European intelligence agencies.
This raises several issues for the European countries singled out. First of all, politically speaking, the United States’ have been heavily criticized for its policy of extraordinary renditions and transfers of prisoners towards countries that practice torture in order to obtain information, not to mention whatever happens in Guantanamo Bay and Bagram Air Base. That European countries, so far having been spared these kind of accusations, are now found to be also guilty of profiting from torture-obtained intelligence is more than just embarrassing.
From a legal point of view, it raises the issue of the respect of these countries of their obligations under the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CoT). Article 15 of that Convention in particular states that:
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
The HRW Report does recognize that the CoT is silent on the use of torture evidence as the basis for decisions by the executive branch and its agencies (p. 12). But its argues – in my opinion, quite accurately – that the narrow interpretation of article 15 that allows for intelligence services and law enforcement authorities to “use foreign torture information for operational purposes (…) misrepresents the letter and the spirit of the Convention Against Torture,” pointing out that it goes against the ergo omnes obligations concerning the eradication of torture which is the main purpose of the CoT.
And to keep things interesting, recently elected British Prime Minister David Cameron has just announced that he agreed to the creation of an inquiry on the alleged complicity of British agents in the torture of suspected terrorists.
Torture and the fight against terrorism is a delicate subject. How far are our societies ready to go to guarantee our security? Or, reversely, how much are we ready to sacrifice in the name of our principles? There is no easy answer, but it looks as if the HRW Report is an interesting and well-researched contribution to the debate concerning the methods used in combating international terrorism. The result of the British inquiry will be interesting to follow, and one could hope that France and Germany will both follow suit.
Update: here is Jurist.org’s entry on the HRW Report and the UK’s inquiry, which as always sums up very well the story.
Professor Kenneth Anderson over at Opinio Juris has posted today an entry concerning the recent publishing of an essay on targeted killings. Being interested in targeted killings, and having written an essay last month on the legal issues this policy raises, I went on to read it, and discovered in the process that Harvard University had apparently created a new law journal covering National Security issues, the Harvard National Security Journal.
I took a quick look at it, and found it very interesting. It defines itself as “a student-edited online journal dedicated to improving scholarship and discourse in the field of national security.” It’s presented under the form of a blog, and a rather good-looking one at that. I wish my blog looked like that.
Specializing in international security issues, I’ll definitely keep an eye out for this new journal, and am already looking forward to the next issue. I would recommend anyone interested in national and international security issues to take a look at it!
For this blog’s first post, it is somewhat ironic that it does not cover international law per se, but I thought this was interesting enough to mention. I noticed a week ago an article in Le Monde (France’s newspaper of reference) that talked of a recently published study that showed that chimpanzees were capable of going to war to conquer territory, killing members of other communities.
So, are chimpanzees capable of ethnic cleansing too? The news keeps getting better and better.