I believe that both designations – either as an indictee or foreign terrorist organization – potentially have the opposite desired outcome in terms of efforts to arrest (as in stop) small wars and armed groups?
Mark Landler and Thom Shanker of The New York Times write that the “new American military commander in Afghanistan, Gen. David H. Petraeus, is pushing to have top leaders of a feared insurgent group designated as terrorists, a move that could complicate an eventual Afghan political settlement with the Taliban and aggravate political tensions in the region.”
The process of FTO designation and listing is fairly straightforward in which the Executive branch consults Congress; the authority to designate an entity as a “foreign terrorist organization” rests with the U.S. Secretary of State, and is subject to judicial review.
The consequence of designation and subsequent listing is that a broad class of forms of “material support or resources” shall not be rendered to a foreign terrorist organization. Recent decisions of the U.S. Supreme Court offer guidance on what these forms of material support and resources may include, as follows:
- Property, tangible or intangible; and
- 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 sub-stances, explosives, personnel (one or more individuals who may be or include oneself), and transportation.
Over the years the definition of “material support or resources” has shifted to clarify that a violation requires knowledge of the foreign group’s designation as a terrorist organization or its commission of terrorist acts. This requirement of a certain mental state delimits culpability because an unwitting person who has no idea of the foreign terrorist organization’s designation or its terrorist acts lacks the necessary intention or frame of mind.
The U.S. Department of State publicly lists these terrorist organizations offering some preamble and rationale explaining the legal basis and potential consequences of being designated as a FTO, including – and presumably not limited to – the following:
1. Supports efforts to curb terrorism financing and to encourage other nations to do the same.
2. Stigmatizes and isolates designated terrorist organizations internationally.
3. Deters donations or contributions to and economic transactions with named organizations.
4. Heightens public awareness and knowledge of terrorist organizations.
5. Signals to other governments our concern about named organizations.
The same public information states that the “organization’s terrorist activity or terrorism must threaten the security of U.S. nationals or the national security (national defense, foreign relations, or the economic interests) of the United States”. This element alone practically constrains the court because it has to straddle the evidence before it and the informed judgment of both Congress and the Executive.
The Supreme Court decisions in Holder, Attorney General, et al. v. Humanitarian Law Project et al. and Humanitarian Law Project et al. v. Holder, Attorney General, et al., both decided on 21 June 2010, provide guidance on the amplitude of what “material support”, “service”, and some of the other confusing aspects of the FTOL really mean.
The U.S. Immigration and Nationality Act (1952 and its amendments) does not penalize mere association, but prohibits the act of giving foreign terrorist groups material support. And whilst some of these groups often have social, political, economic, and humanitarian operations, in acceding to the designation Congress is effectively concluding (explicitly or by construction) that the taint of the group’s violent activities is so great that working in coordination with them or at their command legitimizes and furthers their terrorist means. The court has presciently observed that foreign terrorist organizations do not maintain “organizational firewalls” between their social, political, and terrorist operations – or financial firewalls – between funds raised for humanitarian activities and those used to carry out terrorist attacks. The court also distinguishes between independent advocacy (and therefore freedom of speech) and “service”; the latter is described as “advocacy performed in coordination with, or at the direction of, a foreign terrorist organization”.
That’s the court’s view. In practice, sub-contractors, humanitarian/development organizations, and international agencies won’t touch or go near groups or individuals that have the merest whiff of FTO association. This means that a whole class of people, organizations, and interest groups that merely ‘associate’ their aims and interests with the political and social objectives, policies, and activities of an FTO are effectively isolated or stigmatized (as the U.S. State Department describes). In short, the average aid worker is completely freaked out by the FTO designation.
Which brings me to the effect of the International Criminal Court’s investigations and prosecution of East and Central Africa (‘the situation’ as the ICC likes to refer to it – see the diagram below). Take Uganda’s (and their stomping grounds of Central African Republic, D.R. Congo, and Southern Sudan) Lord’s Resistance Army as an illustration:
The effect of what may, by way of corollary with the U.S.’s FTO designation, be described as the international designation and prosecution of an armed group and its members, is to introduce and maintain effective disincentives that discourage active LRA commanders and combatants to come forward and give up the fight. In an even broader sense, active and former LRA commanders and combatants associate the ICC as an imminent threat to their safety and freedom. The approach that the ICC is taking is high-flown from a moral standpoint; but practically it has the opposite desired outcome.
Consider the following:
Since the ICC indictment, the LRA has become viral, transforming itself from a brutal insurgency in Northern Uganda to a brutal band of terrorists at a regional level active in three foreign countries;
- The Cessation of Hostilities Agreement in August 2006 culminated in the failure of the so-called international community to cause the LRA to sign the Final Peace Agreement; -
- Traditional and customary justice mechanisms perceive their competence as inferior to that of the ICC; that is the ICC can undermine, subvert, overrule, and invalidate traditional forms of reconciliation and punishment of the LRA by prosecuting anyway. Point in fact, reconciliation processes in Acholiland (the most hardcore politico-military leadership of the LRA is Acholi-controlled) that involve truth-telling, clan-level accountability, reparations, punishment, and forgiveness have not really been pursued against active or former LRA combatants over the last twenty years. And in anticipation of arguments to the contrary, claims that returning ex-combatants were "cleansed" under traditional custom are disingenuous; this so-called cleansing is nothing more than a short welcome ceremony. No former LRA commanders and combatants have ever gone through a comprehensive process of atonement and punishment.
Countering or combating insurgency is inherently political. It is wrong-footed in my view to effectively narrow the options for influencing and enticing an armed group (e.g. guerilla-based insurgencies and/or mercenary groups) into the political domain at the expense of their military actions. Why would a commander come forward with the threat of indictment over his head? I’m not saying it doesn’t happen, but unless the counterinsurgents’ military interventions compel him/her to do so, what would be the upside? Equally, the very actors that can chip away and disaggregate certain individuals and sub-groups (esp. support networks) interests and objectives within a politico-military armed group are virtually barred from doing so if it is a designated FTO.
The only reason I can think of is total misapprehension of the conflict itself. I would argue to anybody who would care to listen that the conflict dynamic should be the focal point of any and all attempts to counter, combat, and otherwise arrest (again, as in stop) an insurgency. This means the following:
- Shifting local narratives (e.g. injustice, impunity, identity) away from or distinguishing certain elements from the politico-military movement;
- Co-opting interest groups and individuals that are effectively key opinion-shapers of the politico-military movement; and
- Disaggregating and co-opting the many and different individuals and sub-groups that comprise a politico-military movement’s support network(s).
If you can’t use every available means to do so, then how can you say that you are striving for optimal results? Perhaps it is by pulling the veil over foreign terrorist organizations and indicting certain commanders and combatants in international tribunals this becomes the justification for covert operations? And in the dark recesses of covert operations, none of us have any idea what happens.