Thursday, June 11, 2009

Prolonged Detention a Non-Starter in International Law

The Obama administration’s proposed ‘prolonged detention’ program has drawn criticism from all corners of the political ring. I defended the concept of the program through pragmatic, ethical and utilitarian arguments here. Although I believe the program is the right thing to do (within the strict parameters outlined), that doesn’t mean it is legal. Clearly it is not legal under U.S. law, which is why the Obama administration is pressuring Congress to change the laws to make the program, going forward, lawful. Despite being the most popular politician world-wide (a distinction that never would have been possible with a President McCain), President Obama cannot so easily shirk U.S. responsibilities under international law. As it happens, no matter how you package it or rework the legalese in the American judicial system to sanction the program, it would still be in clear contravention of multilateral treaties that the U.S. is party to. Not only are these treaties not the ones you would expect to uphold the rights of due process, equal treatment before the law, and a trial by jury, they are actually the treaties that the U.S. utilizes the most in its ‘War on Terror’.

In Obama’s national security speech he outlined a program his administration is proposing that would indefinitely detain prisoners of Guantanamo Bay that were deemed a threat to security, unable to stand trial in the American legal system and also unable to be tried before ‘military commission’. As I previously remarked, this population would most likely be limited to detainees who have no evidence against them who were in effect innocent at the time of apprehension, but who have in large part due to being tortured become a threat to American national security. It is not a pleasant thought experiment to undertake and has understandably drawn ire from defenders of civil liberties. Legal scholars too are debating whether this program would mark an ominous precedent, or whether it would be similar to policies of Lincoln and Franklin Roosevelt during a time of war. I would fall in the former category, though I would say Obama’s proposed program is indeed less ominous than those of Lincoln and Roosevelt. Those breaches of Constitutional guarantees, particularly the internment of Japanese Americans during World War II represent some of the larger scars on American legal tradition. There is a clear difference between those policies and Obama’s proposed program – while Lincoln and Roosevelt’s breaches of law were on a broad or national scale, Obama’s program will apply only to a small, definite and limited population. If it is extended beyond current detainees at Guantanamo that meet the criteria set forth earlier, then it will indeed be unjustified and as ugly and unwarranted as previous American concentration camps.

American obligations under international law are another story. International humanitarian law governs conduct of nations during a time of war. The Hague and Geneva Conventions are viewed as the foundational multilateral treaties of humanitarian law. The first and second Geneva conventions deal with the treatment of armed forces in the field. The third Geneva Convention deals specifically with the treatment of prisoners of war. The U.S. is a signatory and was among the first to ratify the Geneva Conventions including the third regarding treatment of war captives. If the Geneva Conventions apply to the detainees at Guantanamo, then Obama’s proposed program would be in direct violation. Even when applied only to the small theoretical population I described earlier – innocent captives who became victims of torture and are now security threats – the Geneva Conventions specifically address this situation:

Third Geneva Convention

Part IV, Section I, Art. 109
Throughout the duration of hostilities, Parties to the conflict shall endeavour, with the cooperation of the neutral Powers concerned, to make arrangements for the accommodation in neutral countries of the sick and wounded prisoners of war referred to in the second paragraph of the following Article. They may, in addition, conclude agreements with a view to the direct repatriation or internment in a neutral country of able-bodied prisoners of war who have undergone a long period of captivity.

Part IV, Section I, Art 110. The following shall be repatriated direct:

(1) Incurably wounded and sick whose mental or physical fitness seems to have been gravely diminished.

II. General Observations

(1) The conditions given shall, in a general way, be interpreted and applied in as broad a spirit as possible. Neuropathic and psychopathic conditions caused by war or captivity, as well as cases of tuberculosis in all stages, shall above all benefit by such liberal interpretation.

It is fairly clear; captives that have incurable mental illness that was cause by the conditions of captivity are to be directly repatriated to their home country. Even General Petreaus has recently claimed that the U.S. violated the Geneva Conventions (though possibly in an [semi]unrelated matter). I can not find a reasonable opinion as to why these detainees would not fall under the Geneva Conventions (sorry, eight years of the Bush administration). As such, Obama’s newly proposed program would do nothing to change that.

Let’s do a thought experiment, though. Let us say for the sake of argument that the detainees do not fall under jurisdiction of the Geneva Conventions. What then? Isn’t there international human rights law in place that would prevent this program? The answer is surprisingly ‘not necessarily’. But what is even more surprising is that there is international terrorism law that would.

If we look at international human rights law, the so called ‘international bill of human rights’ – the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights – would be where we would begin to look for a right not to be indefinitely detained with no legal charges brought against us. This program would violate nearly the entire first half of the UDHR. Unfortunately it is an aspirational document and does not require actions of states. The ICESC doesn’t really deal with civil and political issues, and besides the U.S. isn’t even a signatory. That leaves the ICCPR. This is a civil and political matter. The ICCPR has the force of law (as much as international law has force). Article 9 states this:

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone 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.

3. Anyone 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. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled 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.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.


Obama’s indefinite detention program would be in gross violation of this Article of the ICCPR. But wait:

Article 4

1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

So as long as Obama declares a public emergency to the Security Council (Art.4.3), it is within the parameters of this Covenant to derogate from the right to trial by jury and of non-arbitrary arrest and detention. So much for Civil and Political Rights Guantanamo detainees!

Thankfully, because of the U.S.’s own efforts to internationally prosecute terrorism, there is a broad framework consisting of thirteen multilateral treaties that deal with terrorist offences. Due to the politically charged nature of terrorism, international consensus about a definition of terrorism has proven, so far, impossible to reach. As such, international terrorism law addresses specific acts which most states are willing to call terrorism – including hijacking airplanes, assassinating diplomats, bombings, and taking hostages. In all but one of these conventions there is a provision of aut dedere aut judicare; extradite or prosecute. The first terrorism convention, the Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on 14 September 1963, did not contain such a provision and led to a string of hijackings that went unprosecuted. In 1970 The Convention for the Suppression of Unlawful Seizure of Aircraft was signed into law at The Hague covering, for the most part, the offences outlined in the Tokyo Convention. This convention required prosecution or extradition of offenders, as did every terrorism convention that has come since.

What this means is that whatever terrorism charge that the U.S. took Guantanamo detainees into custody for, warranted or not, they are required as signatory to every one of the terrorism conventions to prosecute the suspects or extradite them to their country of origin.

Obama does not have an easy out here. He can not just change the rules and make the proposed indefinite detention program legitimate in all circumstances. These treaties have been ratified by the U.S. Senate and carry the force of law. But this leads back to the question of ‘who enforces international law?’ And the answer right now is sadly ‘the U.N. Security Council’ on which America has a veto over any proposed resolution. Retribution could be sought by countries of origin of the detainees through the International Court of Justice, but the U.S. would most likely claim that the I.C.J. has no jurisdiction, as it did in the Nicaragua case (1986), though it clearly does under the U.N. Charter. At least in the Nicaragua case the U.S. allowed for the jurisdiction of the I.C.J. in the judgment of customary international law. That is, until the court found America in violation of that as well, at which time the U.S. dismissed the ruling outright by way of Security Council veto.

America has a choice here. Are we going to legitimize international rule of law and eschew the doctrine of American exceptionalism that has garnered international criticism, undermined the U.N. system, and prevented progress in the establishment of international democratic institutions? Or are we going to say ‘We’re a team of Mavericks, either you’re with us or against us, mission accomplished’?

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