Introduction to the symposium on Holder v. Humanitarian Law Project.

• Author: Epps, Valerie

Ever since the Swiss businessman, Henry Dunant, was horrified by the lack of assistance for the wounded at the battle of Solferino in 1859, the modern movement to provide humanitarian assistance to the victims of armed conflict has gradually expanded its scope of activities. Dunant's efforts resulted in the founding of the International Committee of the Red Cross (ICRC) in 1863. That organization currently describes itself and its mission in the following language:

The International Committee of the Red Cross (ICRC) is an impartial, neutral and independent organization whose exclusive humanitarian mission is to protect the lives and dignity of victims of armed conflict and other situations of violence and to provide them with assistance. (1) There are now literally hundreds of other organizations that also provide assistance during, and in the wake of, armed conflict. Such organizations provide food, water, shelter, clothing, medical help, resettlement assistance and a variety of other services to the victims of conflict. The great principle by which all of these organizations operate is that they remain neutral with respect to the conflict and that they supply aid in an impartial manner to any victims, regardless of the political affiliations of those they assist.

The role of the ICRC finds its legal basis in the Four Geneva Conventions of 1949, the two Additional Protocols of 1977, and the third Additional Protocol of 2005. (2) The ICRC describes the legal foundations for its activities as follows:

The legal bases of any action undertaken by the ICRC may be summed up as follows: [T]he Four Geneva Conventions and Additional Protocol I confer on the ICRC a specific mandate to act in the event of international armed conflict. In particular, the ICRC has a right to visit prisoners of war and civilian internees. The Conventions also give the ICRC a broad right of initiative in situations of armed conflict that are not international in character, the ICRC enjoys a right of humanitarian initiative recognized by the international community and enshrined in Article 3 common to the Four Geneva Conventions. [I]n the event of internal disturbances and tensions, and in any other situation that warrants humanitarian action, the ICRC also enjoys a right of initiative, which is affirmed and recognized in the Statutes of the International Red Cross and Red Crescent Movement. Thus, wherever IHL [international humanitarian law] does not apply, the ICRC may offer its services to governments without that offer constituting interference in the internal affairs of the State concerned. (3) Many other humanitarian aid organizations follow the example of the ICRC by agreeing with the countries where they operate to remain neutral and impartial in their supply of aid. In recent years, one of the challenges to emerge in the chaos of conflict is the attempt by various armed factions to commandeer the resources of the aid organizations and use them for their own purposes, thus subverting the cardinal operating principles of neutrality and impartiality--which all such organizations fully understand as necessary to their continuing operations. These organizations are only too aware that if they are perceived as favoring, or facilitating, the operations of a particular party to the conflict, their credibility as an impartial humanitarian assistance provider will be wrecked and they will rapidly find themselves unable to operate.

Of course, there are also many political groups throughout the world that seek societal change and are definitely not dedicated to remaining neutral in conflicts. They often have dual missions. They may have a charitable arm that engages in activities such as building schools or hospitals, or providing food for the needy. In addition, they may also have a militant wing that is dedicated to bringing change through armed struggle. A dilemma has thus arisen for governments who are opposed to organizations that use violence to achieve their ends, particularly organizations that may target civilians: to what extent should the government permit its citizens (and others) to support the charitable or other non-violent ends of those organizations? This dilemma also raises the question of whether it is possible to differentiate between the violent and non-violent activities of such organizations?

The Security Council of the United Nations and a number of governments, including the U.S. government, have introduced resolutions or legislation to prevent citizens (and others) from lending various forms of support to these organizations. In the United States, the First Amendment provides a large level of freedom from governmental restrictions on speech, conduct, and association, particularly when related to political organizations. Congress has, however, given the Secretary of State the power to designate organizations as "foreign terrorist organizations," (4) and has made it a crime to provide "material support or resources" to any such designated organization. (5)

In the U.S. Supreme Court case Holder v. Humanitarian Law Project, (6) which is the focus of this Symposium issue of the Transnational Law Review, a group of plaintiffs, consisting of two U.S. citizens and six domestic organizations, stated that they wished to provide support for the humanitarian and political activities of the Partiya Karkeren Kurdistan (PKK) and the Liberation Tigers of Tamil Eelam (LTTE) both of which had been designated as foreign terrorist organizations by the Secretary of State. Plaintiffs alleged that they feared prosecution under the "material support" statute. They challenged the constitutionality of the statute and sought an injunction against its application to their activities of providing "training," "expert advice or assistance," "service," and "personnel."

The Court held that the case was justiciable as plaintiffs faced a credible threat of prosecution and that the statute was not unconstitutionally vague under the Fifth Amendment. The main portion of the opinion found that the statute did not violate plaintiffs' constitutional rights under the First Amendment's protections of freedom of speech and association even though it did criminalize plaintiffs' proposed non-violent activities of training members of the PKK "on how to use humanitarian and international law to peacefully resolve disputes ... engag[e] ... in political advocacy on behalf of Kurds who live in Turkey ... and teach PKK member how to petition various representative bodies such as the United Nations for relief." (7) (Other plaintiffs wished to engage in similar activities on behalf of LTTE, although most of those proposed activities became moot with the military defeat of the LTTE by the Sri Lankan government.) The plaintiffs urged the Court to read an intent standard into the statue and avoid reaching the constitutional issue, but the Court rejected that approach and held that the proposed activity was...