Human Rights Obligations, Armed Conflict and Afghanistan: Looking Back Before Looking Ahead

• Author: Stephen Pomper
• Position: Attorney-adviser, Office of the Legal Adviser, US Department of State
• Pages: 525-539

Human Rights Obligations, Armed Conflict

and Afghanistan:

Looking Back Before Looking Ahead

Stephen Pomper*

I. Introduction

OnJanuary 22, 2009, President Obama issued three executive orders man-

dating, among other things, areview ofUS detention policy, areview ofUS

interrogation policy, and the closure of the Guantanamo Bay detention facility as

soon as practicable and, in any case, within ayear of the order. With these orders,

the President ensured that the US government would revisit awhole range of do-

mestic and international legal positions governing its use of force against al Qaeda

and the Taliban, two groups with which it has been engaged in armed conflict since

late 2001.

One issue which the new administration may have occasion to consider in the

context of the above-mentioned reviews, and as it contemplates further military

engagement in Afghanistan, is the question ofwhich body of international law gov-

erns the use of force by the United States in extraterritorial armed conflicts—and,

in particular, whether the governing international legal regime is the law of armed

conflict, human rights law or some combination of the two. In this area, the new

*Attorney-adviser, Office of the Legal Adviser, US Department of State. The views expressed in

this essay are given by the author in his personal capacity and do not necessarily represent the

positions of the US government or the US Department of State.