The Second Conference on Non-Formal Dialogue Processes and National Dialogues: Experiences from countries in transition

16 November – 18 November 2015

The House of the Estates (Säätytalo), Helsinki

Building capacity for self- mediation, deadlock-breaking, consensus-building and people’s participatory processes into the change mechanisms 

by

Founder Chairman & Executive Director/CEO
Dr. Thusitha Tennakoon
One-Text Initiative (OTI), Sri Lanka

The U.S. Supreme Court soon will decide whether peacemakers can be sent to jail for trying to end civil wars and promote human rights.  The central issue in Holder v. Humanitarian Law Project, which comes before the court today, is whether conflict resolution professionals and human rights advocates are providing “material support” to terrorist organizations when they attempt to persuade members of violent resistance movements to comply with international law, teach them how to pursue their causes through the legal system, and include them in talks designed to end hostilities.   The lower courts essentially held that training, advocacy, facilitation and similar forms of assistance intended to end violence and promote the rule of law are not prohibited under the anti-terrorism statute the government seeks to apply to these activities.   The Supreme Court should affirm and expand the lower courts’ decisions.

Groups that use violence against noncombatants are deemed terrorist organizations under U.S. law. This characterization is premised on the belief, which I share, that violence against innocents is reprehensible and far exceeds the bounds of fair play, no matter how legitimate a group’s desire for political recognition or independence.   Talk and nonviolent forms of advocacy are how politics should be played.

How ironic, then, that U.S. law could be interpreted to prohibit NGOs from helping representatives of foreign governments and members of opposition groups talk with one another; teaching opposition leaders how to use national and international legal processes, rather than weapons, to register their grievances; and training combatants how to comply with the Geneva Conventions while violence persists.  Prohibiting material support that furthers violence makes good sense, and the statute at issue in the case does indeed explicitly ban provision of weapons, lethal substances, money, and similar items.  However, the statute also contains vague prohibitions on “training,” “expert advice or assistance” and “services” that encompass forms of political expression designed to reduce violence, as well as activities that promote or enable violence.

My organization, the Peace Appeal Foundation, whose founders include five Nobel Peace Laureates, helps construct and facilitate peace processes upon invitation from parties to a conflict.  Why is the Obama administration, like the Clinton and Bush administrations before it, arguing that U.S. law should be interpreted to preclude the peace and human rights promoting work of our organization, the Carter Center, Human Rights Watch, and other NGOs represented in the case?  It argues that Congress intended to preclude on national security grounds all forms of support to groups designated as terrorist organizations.  The record of Congress’ deliberations is far from clear on this point, however, and the statute itself explicitly exempts some forms of support to designated terrorist organizations.

No doubt the real reason successive administrations have attempted to apply the law to activities designed to reduce violence and increase human rights compliance is a desire to determine who engages with groups they have chosen to designate as terrorist organizations, as well as the terms of engagement.  This rationale, if true, should inspire both sympathy and concern.

It should inspire our sympathy because NGOs have come to play an increasingly significant role in international affairs over the past several decades, making invaluable contributions, but sometimes also complicating the work of diplomats and other officials.  To be sure, it also is true that some groups use legitimate activities as fronts for weapons trafficking, money laundering, and providing training in combat techniques to designated terrorist groups.

Nonetheless, a law banning activities intended to reduce violence and promote human rights is cause for serious concern for a several reasons: 

•  First and foremost, if we truly want disputes to be resolved nonviolently, we should create and enhance opportunities for this to happen.  A law that discourages effective political engagement by opposition groups is a law that contributes to violence and human rights abuses.
•  These activities are themselves important forms of constitutionally protected political expression and association. 
•  It is an open secret within the diplomatic community, and among international human rights and conflict resolution professionals, that governments generally want all-party talks to occur, even when they make tough pronouncements against negotiating with terrorists until violence is renounced.   Indeed, the earliest back-channel efforts to resolve the Israeli-Palestinian conflict were tacitly permitted to occur at a time when the laws of each nation made talking to a member of the other nation a capital offense.
•  Under current law, the government can grant exemptions from the material support legislation, but the process can be long and outcomes arbitrary.   The United Nations and other governments often stand ready to fund work by U.S.-based groups and individuals that can be impeded by interminable administrative delays.  Indeed, the designation of groups as terrorist organizations is itself a highly politicized – and, some might say, arbitrary – process.  For example, the PLO and IRA have never been designated as terrorist organizations, despite their use of violence against noncombatants.
•  Neither the U.S., nor any other single government, can possibly determine who helps designated terrorist organizations engage in dialogue and judicial processes, and how they do so.  There are simply too many actors who are not subject to U.S. jurisdiction.  Furthermore, in any major conflict, multiple actors and streams of activity contribute to any eventual resolution.  While some level of coordination among actors is desirable, it is impossible for any single actor to dictate the terms of the process, and efforts to do so are counterproductive.  Preventing groups and individuals resident in the U.S. from engaging in peacemaking and human rights work in conflicts where one of the parties has been designated a terrorist organization simply ensures that they cannot contribute to advances toward the cessation of violence and respect for the rule of law, without any counterbalancing positive effects.

As applied to peacemaking activities and human rights work, these concerns undercut the logic of any
law or policy that subjects political expression intended to reduce violence and promote the rule of law to prior, and potentially arbitrary, government restraint.

The administration’s security concerns are real and significant, yet they can be addressed in ways that impinge less on other national interests and the civil rights of advocates for peace and the rule of law. For example, Congress could amend the statute to require U.S.-based groups and individuals doing conflict resolution and human rights work to provide the government with notice of the fact that they are interacting with members of designated terrorist organizations.  Wherever our organization is active, we go out of our way, with the knowledge of the national stakeholders, to inform the U.S. and other foreign governments of our activities and create opportunities for them to participate in appropriate elements of the process.   Our experience in numerous conflict zones, including Nepal, where we helped end a decades-long civil war between the former monarch and a group designated by the U.S. government as a terrorist organization, confirms that conflicts are seldom resolved without the active involvement and support of the international community.

Another reason successive administrations have attempted to enforce the material support statute against peacemakers may be a belief that the best way to deal with resistance movements that have resorted to violence is to attempt to discredit and isolate them.  If true, this rationale is misguided.  These groups often have legitimate grievances that fall on deaf ears within governments that may be
oppressive or corrupt.  In many of the conflicts in which members of our organization have been active, including South Africa, Sri Lanka and Nepal, resistance groups advocated nonviolently for recognition and rights for years before the hawkish elements within them turned to violence.

As the Clinton administration’s experience in Northern Ireland demonstrates, peace does not break out spontaneously.  Parties must talk, and the legitimate grievances and political representatives of resistance groups must be recognized as such, even as violent conduct is legitimately condemned.
Obama campaigned on the premise that talk matters in international relations, and that talk can work.
Let’s not punish the peacemakers as they attempt to affirm that principle.

Jeff Seul is chairman of the Peace Appeal Foundation.