Introduction to the Symposium on Holder v. Humanitarian Law Project
15 Pages Posted: 1 Oct 2011
Date Written: September 29, 2011
This article serves as an introduction to a symposium held at Suffolk University Law School in the spring of 2011 examining the 2010 U.S. Supreme Court decision “Holder v. Humanitarian Law Project.” The first part of the article describes the founding and mission of the International Committee of the Red Cross noting that its cardinal principle is that it supplies assistance to the victims of conflict on an impartial and neutral basis and that many other organizations now also supply humanitarian assistance in the wake of conflict on the same basis.
The article next observes that in recent years a number of humanitarian aid organizations have sprung up that have political arms, which may endorse or use violence to achieve political aims, as well as charitable arms that engage in activities such as building schools or providing food for the needy. The dilemma for governments who oppose violence is determining the extent to which they will permit their citizens to support the political and charitable endeavors of such organizations. In the U.S., the Intelligence Reform and Terrorism Act of 2004 gave the Secretary of State the power to designate organizations as “foreign terrorist organizations” and made it a crime to “provide material support or resources” to such organizations.
In the case under discussion, a First Amendment challenge was brought against the statute by some U.S. citizens and six organizations who wished to support the charitable and political advocacy activities of certain organizations that had been designated as “terrorist organizations.” Despite purporting to apply strict scrutiny to the statute, the Court nevertheless deferred to Congressional and Executive fact finding that had concluded that any form of contribution to such an organization, even contributions to the charitable arm of the organizations, would further its terrorist aims. The Court then speculated on how an organization might use training in humanitarian and international law dispute settlement (one of the activities proposed by the plaintiffs) for illegal ends and, on the basis of this speculation, was satisfied that the statute met Constitutional strictures.
The article also describes the dissent written by Justice Breyer that used a completely different approach and would have permitted the plaintiffs’ proposed advocacy unless the government could demonstrate that prohibiting such advocacy would serve the compelling governmental interest of combating terrorism.
Finally, the four Symposium articles are summarized. They examine whether Congress, the Executive, and the Court have hit the correct balance in the statute or have gone too far in restricting certain forms of humanitarian aid to foreign political groups. They also cover a variety of issues such as whether the ruling in the case conflicts with U.S. treaty obligations; whether the case should be viewed as part of a wider trend undermining the essential neutrality of providers of humanitarian aid during conflict; whether the case actually overrules an earlier line of decisions despite the fact that it sought to distinguish those cases; whether the case will cause humanitarian groups to curb their activities because they fear prosecution; and what impact the case will have on the overall work of humanitarian aid groups including supplying advice on conflict resolution, as well as other traditional activities such as supplying food, shelter and medical aid.
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