INTRODUCTION: AN OUTMODED LEGAL PARADIGM I. BACKGROUND A. The Law of Armed Conflict B. National Security Law C. The Assumption of Clear Boundaries II. CHANGES: GLOBALIZATION AND ASYMMETRICAL THREAT III. THE BREAKDOWN OF BOUNDARIES A. "International" Versus "Internal" Armed Conflicts B. Crime Versus Conflict C. Geographical Boundaries D. War Without End: Temporal Boundaries E. We Are All at War: Distinctions Between Persons F. The Boundaries Between National Security and Domestic Affairs IV. IMPLICATIONS: WAR EVERYWHERE; RIGHTS NOWHERE V. WHAT CAN BE DONE? HUMAN RIGHTS LAW AS A BASIS FOR CRITIQUE VI. REINVENTING THE LAW OF ARMED CONFLICT CONCLUSION INTRODUCTION: AN OUTMODED LEGAL PARADIGM
Others say, Law is our Fate; Others say, Law is our State; Others say, others say Law is no more, Law has gone away. (1)
Both international and domestic law take as a basic premise the notion that it is possible, important, and usually fairly straightforward to distinguish between war and peace, emergencies and normality, the foreign and the domestic, the external and the internal. From an international law perspective, the law of armed conflict (2) is triggered only when an armed conflict actually exists; (3) the rest of the time, other bodies of law are applicable. (4) Domestically, U.S. courts have developed a constitutional and statutory jurisprudence that attempts to distinguish between "national security" issues and "domestic" questions, with the courts subjecting government actions to far less scrutiny when those actions are taken in the name of national security. (5)
This Article asserts that these binary distinctions are no longer tenable. In almost every sphere, globalization has complicated once-straightforward legal categories, but this is nowhere more apparent and more troubling than in the realms of armed conflict and national security law. Although the boundaries between "war" and "nonwar," and between "national security" and "domestic issues," have been eroding for some time, September 11 and its aftermath have highlighted the increasing incoherence and irrelevance of these traditional legal categories. Shifts in the nature of security threats have broken down once clear distinctions between armed conflict and "internal disturbances" that do not rise to the level of armed conflict; between states and nonstate actors; between combatants and noncombatants; between spatial zones in which conflict is occurring and zones in which conflict is not occurring; between temporal moments in which there is no conflict and temporal moments in which there is conflict; and between matters that clearly affect the security of the nation and matters that clearly do not.
The breakdown of these once reasonably straightforward distinctions gave the U.S. government an opening to argue, among other things, that noncitizen detainees held at Guantanamo Bay, Cuba may be detained indefinitely without charge; (6) that U.S. citizens (including those detained inside the U.S.) may be designated "unlawful combatants" by executive fiat and held indefinitely without charge or access to attorneys; (7) and that the U.S. may kill any suspected terrorist in any state in the world at any time. (8) U.S. courts are currently struggling to determine how to assess many of these claims, (9) all of which are based on loose, but not implausible, readings of the law of armed conflict. (10)
In response to these arguments, many in the human rights, civil rights, and international law communities have struggled to insist on the continuing viability of the law of armed conflict's traditional boundaries, (11) since the erosion of these boundaries has had (and will almost certainly continue to have) a disastrous effect on basic rights and vulnerable populations. (12) Many in these communities have insisted, for instance, that the law of armed conflict should be interpreted in a strict and formalistic manner when it comes to evaluating U.S. actions in the "war on terror," (13) and some human rights groups (including Amnesty International) have asserted that since al Qaeda is neither a state nor a domestic insurgent group, the law of armed conflict does not apply at all to the U.S. struggle against terrorism, (14) which should be governed instead by the principles of domestic and international criminal law.
It is somewhat ironic for any in the human rights law community to insist on a rigid and traditional reading of the law of armed conflict when it comes to the war on terror, since in many other contexts the human rights community has appropriately been at the forefront of calls for progressive and flexible interpretations of international law. (15) In the longer run, shifting from one interpretive methodology to another based on the likely results of different methodologies is both unprincipled and likely to be self-defeating, as it is difficult to simultaneously argue, for instance, that the law of armed conflict should be construed narrowly when the goal is reining in U.S. government actions, but flexibly when the goal is holding nonstate actors accountable for crimes against humanity or ending impunity for gender-based crimes committed during armed conflicts. (16)
The effort to insist on the viability of the customary distinctions drawn by the laws of armed conflict is also, increasingly, a rearguard action. The erosion of boundaries is an inescapable social fact, and this Article asserts that it needs to be candidly acknowledged and addressed, rather than ignored or denied.
To say that the erosion of traditional legal boundaries is an inescapable fact is not to minimize the degree to which it is nonetheless genuinely cause for alarm, however; rights advocates are justifiably concerned about the consequences of this boundary erosion. The existence of reasonably clear boundaries between conflict and nonconflict, combatants and noncombatants, and "lawful" and "unlawful" belligerents is what allows us to determine which legal rules apply in different situations, and, even more critically, allows us to identify people and rights meriting protection. As traditional categories lose their logical underpinnings, we are entering a new era: the era of War Everywhere. (17) It is an era in which the legal rules that were designed to protect basic rights and vulnerable groups have lost much of their analytical force, and thus, too often, their practical force.
The erosion of clear boundaries in some areas of the law also leads to a slippery slope, allowing the disingenuous to assert that there is also blurriness even in areas of the law that remain both relevant and clear. Thus, lawyers for the Bush administration went from the legitimate conclusion that the Geneva Conventions cannot easily be applied to many modern conflicts, to the disingenuous and flawed conclusion that there were therefore no legal constraints at all on U.S. interrogation practices. (18) In fact, regardless of whether or not the Geneva Conventions apply to a given conflict, and regardless of whether or not a particular detainee is entitled to the protections of the Geneva Conventions, international law and U.S. treaty commitments prohibit the use of torture and other forms of cruel, inhuman, or degrading treatment of detainees--and there can be little doubt that many of the interrogation practices authorized by the Pentagon constitute torture or cruel, inhuman, and degrading treatment. (19) In practice, then, the breakdown of clear boundaries in some areas of the law also dangerously undermines the efficacy of other legal rules. (20)
In the long run, the old categories and rules need to be replaced by a radically different system that better reflects the changed nature of twenty-first century conflict and threat. What such a radically different system would look like is difficult to say, and the world community is unlikely to develop a consensus around such a new system anytime soon. This Article suggests, nonetheless, that international human rights law provides some benchmarks for evaluating U.S. government actions in the war on terror, and ultimately for developing a new analytical framework that can successfully balance the need to respond to new kinds of security threats with the equally important need to preserve and protect basic human rights.
Unlike domestic U.S. law and the law of armed conflict, international human rights law applies to all people at all times, regardless of citizenship, location, or status. (21) Although human rights law permits limited derogation in times of emergency, it also outlines core fights that cannot be eliminated regardless of the nature of the threat or the existence or nonexistence of an armed conflict. (22) Applying the standards of international human rights law in both domestic and international contexts would not solve all the problems created by the increasing irrelevance of other legal frameworks, but it would provide at least a basic floor, a minimum set of standards by which international and domestic governmental actions could be evaluated. U.S. courts are free to make use of applicable international human rights law, though they rarely do so; this Article urges U.S. courts to make greater recourse to international human rights law in evaluating legal challenges to post-September 11 government action. International human rights law and norms can also be used as a political benchmark for evaluating uses of force by the U.S. in the international context. Human rights norms also can, and should, be the starting point for developing a new legal framework in which to view state responses to new and emerging security threats.
A great deal has already been written about ambiguities and gaps in the law of armed conflict, (23) about how the law of armed conflict should (or should not) be applied to the events of September 11 and to terrorism in general, (24) and about the threats to human rights and civil liberties posed by the "war on terror."...