Holder, Attorney general v Humanitarian Law Project 561 US (2010): does training in international humanitarian law and human rights law constitute 'material support to terrorism'?

• Author: Walther, Pernille

I Introduction

Since 11 September 2001, there has been nationally and internationally a continued expansion in the scope of criminal offences related to terrorism. Specific acts of terrorism--ranging from, inter alia, offences against aircrafts to taking of hostages--have been defined and criminalised in 16 specific international conventions against terrorism.

Attempts to commit particular terrorist offences, and complicity in carrying out a specific terrorist offence--for example, in terms of providing financial support to a terrorist organisation--have also increasingly been criminalised in national and international law.

Recent instruments have gone even further and criminalised acts that potentially can lead to a terrorist act, including incitement, justification or glorification (apologie) of terrorist acts. (1) Incitement to terrorism is likewise prohibited in the Council of Europe's 2005 Convention on the Prevention of Terrorism. (2) This Convention refers to direct, as well as indirect, advocacy for a terrorist offence. (3) According to the Explanatory Report of the Convention, presenting a terrorist offence as necessary and justified may constitute the offence of indirect incitement'. (4)

A decision handed down on 21 June 2010 by the United States (US) Supreme Court concerns the question of whether an even more remote, and arguably legitimate, form of assistance to a terrorist organisation is to be considered a criminal offence. (5) The assistance in question in Holder was training in the use of international law to peacefully resolve disputes. Such assistance was to be provided with the indirect intention to avoid possible future terrorist acts.

As will be seen, after 12 years of complicated litigation, the Court rejected the plaintiffs' claims by a 6-3 decision. The underlining perception is that any contribution to a foreign terrorist organisation furthers its criminal activities. Such a broad decision, of course, gives rise to concern.

II The facts

The plaintiff's, two American citizens and six organisations, brought two actions to challenge the constitutionality of 2339A and B--what is known as the 'Material Suppor Statute'--in title 18 of the United Stares Code. These provisions makes it a federal crime (punishable now by up to 1.5 years' imprisonment) h) knowingly provide 'material support or service to any foreign organisation designated as a terrorist organisation by the US by the US Secretary of State.

Amongst the plaintiffs were the Humanitarian Law Project, a human rights organisation with consultative status to the UN, and five non-profit groups dedicated to the interests of persons of Tamil descent. These private organisations in the past had supported and wished to continue N) support. We lawful political and humanitarian activities of We Liberation Tigers of Tamil Ealam (LTTE) and the Kurdistan Workers' Party in Turkey (PICK). Roth the ITIN and PICK were, amongst a total of 30 groups, designated as foreign terrorist groups by the US Secretary of State in 1997.

The plaintiffs contended that they intended only to facilitate the lawful, non-violent purposes of the LTTE and PKK by providing different kinds of non-financial legal and political support, including to:

1. ) train PKIK members on how h) use humanitarian and international law to peacefully resolve disputes;

2. ) teach PKK members how to petition various representative bodies, such as the United Nations (UN), for relict; and

3. ) engage in political advocacy on behalf of Kurds who live in Turkey and on behalf of the Tamils who live in Sri Lanka.

The Material Support Statute is defined so as to include 'any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials'. (6)

The proposed activities fell potentially under fair types of material support: 'personnel', "training', 'expert advice and assistance' and 'service'.

III The plaintiffs' arguments

The plaintiffs claimed that 2339B was invalid as it prevented them from undertaking (these activities out of tear d prosecution. This claim was based on three separate grounds, discussed below.

A The Material Support Statute was unconstitutionally vague

It was first argued that the Material Support Statute was unconstitutionally vague in violation of the due process clause of the Fifth Amendment. (7)

Under the Material Support Statute, 'training' is defined as 'instruction or teaching designed to impart a specific skill, as opposed to general knowledge'.8 'Expert advice or assistance' means 'advice or assistance derived from scientific, technical or other specialized knowledge'.9 Material support in terms of providing 'personnel' requires that the 'person works under the terrorist organization's direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization'. (10)

The Court rejected the vagueness claim with reference primarily to the statutory definition of terms mentioned above. (11) Thus, whether or not the proposed activities were covered by the Material Support Statute should be clear.

In regard to the...