Sunday, July 3, 2011

Holder vs. Humanitarian Law Project


By Carrie O’Neil ’11

Is it a criminal act to engage in human rights and conflict resolution training with, or provide humanitarian assistance to, groups that are on the U.S. State Department’s list of foreign terrorist organizations (FTOs)? How do we balance global safety while supporting the work of peace-builders and negotiators?

These questions were addressed on March 25, 2011, at the Criminalization of Conflict Resolution Symposium at Harvard Law School. The event convened panelists to discuss the impact of the Supreme Court case Holder vs. Humanitarian Law Project on alternative dispute resolution and human rights work. The event was presented by the Harvard Negotiation & Mediation Clinical Program (HNMCP), the Harvard Negotiation Law Review (HNLR), and the Program on Negotiation (PON), and was sponsored by international law firm Millbank, Tweed, Hadley & McCloy LLP. Experts with legal, human rights, and conflict resolution backgrounds discussed various aspect of the potential fallout from this decision, ranging from First Amendment issues to the potential criminalization of peacemaking efforts, from the chilling effects on journalists and charities to the impact on global election monitoring, as well as an examination of the nature of claimed identities and reasons for the use of violence.

Stephan Sonnenberg ’06, Clinical Instructor at HNMCP and Lecturer on Law at Harvard Law School, opened the conference by framing the discussion through the example of South Africa in the 1980s, when the U.S. debated whether or not to engage with the African National Congress (ANC) because of its ties to the Communist Party. PON leaders like Roger Fisher consulted with the ANC about how to engage the Apartheid government. If the situation had happened under the Holder vs. Humanitarian Law Project (H v. HLP) decision, would PON still have engaged or would it have been too risky? And with regards to H v. HLP, what questions are settled and which remain open? How can those engaged in conflict resolution and human rights work protect themselves while creating change in accordance with this decision? What are the avenues for advocacy?

The first panel of the symposium explored the legal issues and parameters involved in the case. The speakers were Amanda Shanor of the Center of National Security and the Law at Georgetown University, Martha A. Field, the Langdell Professor of Law at Harvard Law School, and Robert H. Mnookin, Williston Professor of Law at Harvard Law School and Chair of the Steering Committee for the Program on Negotiation.

Amanda Shanor provided relevant background on the case and talked about its impact on the fabric of international law on speech and association as well as its chilling effect on vital human rights and conflict resolution development work. She highlighted questions that may face future litigative or legislative pressure, such as where does the Constitution draws the line between independent and coordinated speech? Is The New York Times engaging in independent or coordinated speech when it publishes an op-ed written by a Hamas leader? Is Jimmy Carter engaged in independent advocacy or a crime when he conducts election monitoring in Palestine when there are Hamas candidates on the ballot? What if a lawyer files an amicus brief on behalf of a terrorist organization? Because the court did not determine whether or not the government could criminalize coordinated advocacy, Shanor believes examples like these are open to both prosecution and potential First Amendment challenges.

Martha Field  took up the examination of the case as a First Amendment holding, explaining how it fits in with constitutional principles. By raising new issues about how the First Amendment operates in an international setting, the decision asks practical questions about conflict resolution work, which many consider both morally necessary and an instrument in creating a peaceful and just society. Field discussed why upholding the government’s criminal prohibition against teaching and advocacy directed to FTOs is both reasonable and understandable with respect to the court’s jurisprudence of foreign relations and national security. But, Field argued, it is not in keeping with First Amendment jurisprudence, possibly creating a new category of speech outside First Amendment standards. If a terrorist organization was domestic instead of foreign, the issue would be one of free political speech rather than foreign policy, which is not within the scope of the courts. Under H v. HLP, U.S. citizen’s rights to free speech are diminished when dealing with foreign organizations that do not themselves partake of First Amendment freedoms.

Despite the court’s decision, Robert Mnookin focused on the hope that there is much room left for organizations to courageously pursue their peacemaking agendas.  Although there is a new possibility of criminal prosecution around the simple act of facilitating a dialogue between Israelis and Hamas, for example—an argument could be made that such an act would be legitimizing Hamas—Mnookin hopes that this decision will not lead to the criminalization of peacemaking. He warned that if the field is too alarmist about this issue, it risks augmenting the chilling effect of the decision by exaggerating it.

The second panel of the symposium addressed policy implications for practitioners. Speakers included Ralph D. Fertig, Clinical Professor at the University of Southern California School of Social Work and President of the Humanitarian Law Project, Nathan Stock, Assistant Director of the Conflict Resolution Program at The Carter Center, and Ervin Staub, Professor of Psychology and Founding Director of the Psychology of Peace and the Prevention of Violence Program at the University of Massachusetts at Amherst. The panel was moderated by Eileen F. Babbitt, Professor of International Conflict Management Practice at The Fletcher School of International Affairs at Tufts University.

Ralph Fertig compared the implications of his work with the Kurdistan Workers’ Party (PKK) and the origins of H v. HLP. He believes that this decision has had a chilling effect on advocates, reporters and charities doing work across the globe. For example, in Sri Lanka during the tsunami, threat of prosecution under this decision discouraged aid organizations from helping villages under Tamil rule. He encouraged non-violent, direct activism in order to send a message to Congress and the President.

Ervin Staub called the ruling problematic because the U.S. government has tried to stop terrorism mainly through violence and sanctions. He argued that what is needed is a more complex approach to prevention that includes social and psychological interventions with terrorist groups. Some of the conditions that lead a group to terrorism include feelings of unjust treatment, inequality, humiliation, of the perception that enemies are standing in the way of fulfilling ideologies, and of the shaping of identity around experiences of victimization. Staub believes it is important to help people understand the influences that lead to group violence in addition to potential avenues for prevention. Education workshops and encounter sessions with people on “the other side” help with healing, humanization, and empowerment. But where is the space for that post-H v. HLP?

Nathan Stock addressed election monitoring, explaining that contact with FTOs is essential for The Carter Center’s work. Any observation or analysis needs to have contact with all actors involved for the monitoring process to be credible. H v. HLP broadens a set of prohibitions already in place for U.S. government personnel to now include private citizens. The U.S. government has a trend of naming non-state, armed groups as FTOs, leaving them outside of standard diplomacy. Stock believes that an organization like Hamas will not be destroyed by force of arms and a realistic pathway to legitimate political participation is vital. Only political engagement with Hamas will stop the collapse of Palestinian human rights inside the occupied territories and foster a democratically legitimate Palestinian partner that can someday negotiate peace with Israel. In light of the Court’s decision The Carter Center continues to engage in its mission, very cautious of the inherent risks.

In summary, Eileen Babbitt engaged with the premise on which the H v. HLP ruling is based—that the only way to combat terrorism is to delegitimize acts of violence and defeat the perpetrators. It is the assumption that we only use violence when we are forced to do so, but that terrorists use violence because it is in their nature. The creation of a monolithic “other “fosters an ideology that the only way to defeat FTOs is with violence. However, for conflict resolution practitioners, analysis shows that for some groups, violence is instrumental not innate—it is a tool to fulfill the need for respect, acknowledgment, justice and autonomy. Seeing and acknowledging these universal needs allows imaginative ways to engage with these groups and its members, who may be amenable to looking for nonviolent alternatives. Will H v. HLP prevent the vital analysis of, and engagement with, groups that the U.S. government has labeled as FTOs, thereby encouraging the very violence those in our field seek to heal?