The new American encounter with international human rights norms: the road after Abu Ghraib.

Author:Mokhtari, Shadi
Position:New Voices: Perspectives on Transitional Justice, Postconflict Societies and Human Rights - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

In this research, I paint a canvas of how international human rights norms have entered American civil society-governmental contests over torture and detainee rights policies after Abu Ghraib and assess the extent to which efforts by select media outlets, human rights nongovernmental organizations (NGOs), and congressional leaders have produced a new American engagement with the international human rights framework.

The study is empirical (stemming from 11 interviews and content analysis of select media coverage) and focuses on the confirmation of Alberto Gonzales as U.S. Attorney General and the passage of the McCain Anti-torture Amendment to the 2006 Department of Defense Appropriation Act.

My analysis is informed by a constructivist framework that highlights the interplay between norms, and power or interests. Constructivism underscores elements of "shared moral assessment" or evaluation encompassed by international norms and maintains that international norms can produces shifts in actors' constitution of their identities and interests. Although earlier waves of constructivist scholarship focused on processes of persuasion and communication taking place on the international plain, increasingly, scholars are looking at these processes at the domestic level.

An intractable commitment to upholding liberal rights has been a central tenet of dominant American identity constructions. In relation to the international human rights regime, this identity construction has been invoked to paint international norms as redundant or irrelevant to the American experience. In U.S. political and legal discourses, the Constitutional rights framework has routinely been portrayed as above and beyond the international rights regime, thus rendering America's commitment to human rights implicit in the sanctity accorded to its constitution.

Further, the United States' inherent respect for universal rights is conceived of relationally, or in opposition to others" ineptitude in upholding rights. When extended, these dynamics produce a critical paradox. At the same time that dominant American identity constructions marginalize the international human rights regime, important aspects of American identity and self-image are tied up with an assumption of America adhering to human rights principles.

After September 11th, when these formulations converged with emerging national security discourses, a number of troubling trends developed. Depictions of public international law as not real law, as naive, advisory, and irrelevant, or "quaint" and "obsolete" gained currency. Human rights NGOs struggled for funding and media coverage of detainee rights issues. Whether torture was a necessary evil in the "War on Terrorism" became an issue of legitimate debate, with the pro and con positions being placed on par and the pro position gaining momentum. Finally, American policymakers appropriated the moral authority and normative legitimacy of human rights discourses in order to simultaneously justify military interventions and avoid the application of these norms within those interventions. That constitutional protections could not be extended to non-citizens was treated merely as a regrettable but unalterable fact.

Then came Abu Ghraib. Abu Ghraib forced American leaders to reconcile the gulf between their self-image as deploying benign power in the service of rights and freedom, and incontrovertible evidence of American power producing rights violations. Immediately, the pictures produced condemnation of the violations and rhetorical acceptance of the substance and legitimacy...

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