International human rights law and the war on terrorism.

• Author: Jinks, Derek

The September 11th terrorist attacks prompted a rethinking of the relationship between liberty and security. The attacks exemplify a new mode of organizing sustained violence that poses a fundamental challenge to United States (U.S.) and international law. Indeed, Anne-Marie Slaughter and William Burke-White recently described this critical juncture in global politics as an "international constitutional moment." (1) In the wake of the attacks, the U.S. confronted this challenge by initiating several important changes in its law and policy--the architecture of the "war on terrorism." (2) To be sure, the U.S. response generated substantial controversy concerning three related issues: (1) the most appropriate forum for prosecuting individuals responsible for the September 11th attacks; (3) (2) the international legal status of combatants captured in Afghanistan; (4) and, more generally, (3) the most appropriate role for law in any comprehensive strategy against international terrorism. (5) It is striking that these debates turn on which law, if any, applies in the "war on terrorism." The questions structuring these debates are by now familiar: Does the Constitution protect "enemy aliens"? Do the Geneva Conventions protect "unlawful combatants"? Although these are critical questions, the focus on U.S. constitutional law and international humanitarian law has unfortunately obscured the importance of another potentially relevant body of law: international human rights law. If applicable, international human rights law would establish conclusively--irrespective of the applicability of the Geneva Conventions or U.S. Constitution--that all persons subject to the jurisdiction of the United States, as a matter of law, are entitled to certain basic rights including: the right not to be detained arbitrarily; the right to humane conditions and treatment if detained; and, the right to a fair trial on any criminal charges.

INTERNATIONAL DUE PROCESS STANDARDS

For example, international human rights law informs the legal analysis of the most controversial aspects of U.S. antiterrorism policy including: trial of suspected terrorists by military commission; (6) indefinite detention of citizens designated as "enemy combatants;" (7) and, prolonged detention of aliens suspected of terrorist activity. (8) It is important to note that several international human rights treaties, (9) declarations, (10) and resolutions (11) establish minimum procedural protections for all individuals deprived of their personal liberty. Under Article 9 of the International Covenant on Civil and Political Rights (ICCPR), no one shall be "subjected to arbitrary arrest or detention" (12) or "deprived of his liberty except on such grounds and in accordance with such procedure as are established by law." (13) This provision also specifies that "[a]nyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him." (14) Article 9(3) provides that all persons arrested or detained on a criminal charge "shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release." (15) As interpreted by the United Nations (U.N.) Human Rights Committee, (16) the provision requires at a minimum that an individual must be brought before a judge or other officer within "a few days." (17) Finally, The ICCPR provides for the right to habeas corpus, or amparo. (18) Under this provision, anyone deprived of liberty by arrest or detention has the right to "take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful." (19) International human rights law has also established an extensive inventory of procedural rights for individuals facing criminal charges. The Universal Declaration of Human Rights (UDHR), (20) ICCPR, (21) African Charter on Human and Peoples' Rights, (Banjul Charter) (22) Inter-American Convention on Human Rights (ACHR) (23) and the European Convention on Human Rights (ECHR) (24) all include detailed fair trial provisions. Specifically, Article 14 of the ICCPR recognizes the right to "a fair trial and public hearing by a competent, independent and impartial tribunal established by law." (25) This provision enumerates the minimum procedural requirements of a "fair trial," including the right to be presumed innocent, (26) the right to be tried without undue delay, (27) the right to prepare a defense, (28) the right to defend oneself in person or through counsel, (29) the right to call and examine witnesses, (30) and the right to protection from retroactive criminal laws. (31)

INTERNATIONAL HUMAN RIGHTS AND U.S. LAW

The central claim of this essay is that international human rights law conditions the exercise of U.S. power in the "war on terrorism." (32) In one sense, international human rights law clearly applies in that the United States has ratified several human rights treaties, including the ICCPR, and all treaties lawfully made under the U.S. Constitution are part of the "supreme law of the land." (33) In addition, agencies of the U.S. government, including the Department of Defense, are required by Executive Order to comply with the ICCPR. (34) Although the U.S. made clear its understanding that the substantive provisions of the ICCPR are "non-self executing," the treaty nevertheless establish international legal obligations binding on the executive and legislative branches of government. (35) Moreover, the nature of international human rights law suggests that it applies in all circumstances. That is, international human rights law defines the minimum rights protections necessary to prevent the arbitrary exercise of power. This body of law reflects the collective normative aspirations of the international community; and, as such, provides an indispensable framework for evaluating specific policy options in the "war on terrorism."

WARTIME AND OTHER "STATES OF EXCEPTION"

The robust regime of procedural rights embodied in the ICCPR would, if applicable, call into question several aspects of U.S. antiterrorism policy. Indeed, the U.N. Human Rights Committee repeatedly declared special military courts and "national security" detention laws inconsistent with the ICCPR. (36) The application of the ICCPR to U.S. action in the "war on terrorism" is, however, complicated by the fact that these actions are undertaken in the context of an ongoing, formally proclaimed national emergency (37) and an international armed conflict. (38) Defining the scope of application of the ICCPR therefore requires an assessment of the degree to which international human rights law applies in times of war and other states of emergency.

International human rights treaties allow the suspension of some rights in public emergencies (such as times of war). (39) Article 4 of the ICCPR provides that in situations threatening the life of the nation, a government may issue a formal declaration suspending certain human rights guarantees provided that: (1) a state of emergency that threatens the life of the nation exists; (40) (2) the exigencies of the situation "strictly require" such a suspension; (41) (3) the suspension does not conflict with the nation's other international obligations; (42) (4) the emergency measures are applied in a non-discriminatory fashion; (43) and, (5) the government notifies the United Nations Secretary-General immediately. (44) Some rights, however, are not subject to derogation even in times of public emergency. (45) The ICCPR specifically identifies several non-derogable obligations including the rights to be free from arbitrary killing; (46) torture or other cruel, inhuman or degrading treatment or punishment; (47) and slavery. (48) Although the rights to fair trial and personal liberty are, as a formal matter, derogable provisions, (49) the U.N. Human Rights Committee has made clear that many restrictions of these rights are inappropriate even in times of emergency. (50) Indeed, the Committee, in its General Comment 29, stated that:

Safeguards related to derogation ... are based on the principles of legality and the rule of law inherent in the Covenant as a whole. As certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations. The Committee is of the opinion that the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal...