The US Supreme Court and the Congo

The US Supreme Court will soon rule on a case of great importance to the Congo. Well, not really, but it does reveal an interesting loop hole in international diplomacy and law.

In Holder v. Humanitarian Law Project, the court is currently hearing a case about a retired United States administrative law judge who wanted to provide training in peaceful dispute resolution to the Kurdistan Workers’ Party, which has waged a separatist guerrilla campaign against the Turkish government, and to advise the group on how to petition the United Nations and other international organizations for relief. (See the New York Times Op-Ed here.)

It is illegal for people in the US to provide "material support" to groups listed as terrorist organizations by the US government. Support can be financial, but also advice and "service." The issue at stake in the Supreme Court case is what exactly this vague definition of material support means.

The reason that I raise this issue is because the US, as well as governments in Europe, has consistently had a hard time prosecuting leaders and supporters of rebel groups abroad, no matter how violent and abusive those groups are. In Germany, for example, the prosecutors flailed around for a long time before finally prosecuting the FDLR leaders living there based on the International Criminal Court's Rome Statute definition of war crimes and crimes against humanity.

The US, of course, has not signed onto the Rome Statute. It can, however, prosecute people who provide material support to terrorist groups, which are defined as organizations that threaten the security of US nationals or US national interests. Most of the organizations on the current list are linked to extremist Islamist networks. But there are some notable exceptions of groups that do not target US interests per se, but who may target governments allied to the US: the PKK in Turkey, LTTE in Sri Lanka, ETA in Spain. Just to prove that it is more about political will than abiding by legal definitions. (In fact, many have criticized the naming of these groups as cynical realpolitik).

All of this is just to say that the FDLR, CNDP and LRA can be as massively abusive as they want to be and still travel to the United States. In fact, the two leaders of an FDLR splinter faction, RUD-URUNANA, live in New Jersey and Massachusetts. When the CNDP was still officially a rebel group, its leaders regularly traveled throughout Africa and Europe.

We may need to think about some more creative legislating - in the US, you can get people under

• the Torture Victim Protection Act, which allows for the filing of civil suits in the United States against individuals who, acting in an official capacity for any foreign nation, committed torture and/or extrajudicial killing.
  
• the Alien Tort Claims Act, which allows United States courts to hear human rights cases brought by foreign citizens for conduct committed outside the United States, including by corporations.

Unfortunately, you have to prove the "purposeful complicity in human rights violations," which is often difficult. (See here for more detail.)