The United States was poised to present its views tomorrow to the Human Rights Committee, which monitors state parties’ compliance with the International Covenant on Civil and Political Rights. Due to the government shut down, however, the hearing has been postponed, likely until March 2014.
In light of the now-pending session, and as an addendum to the excellent series of posts on Just Security by Geoff Corn, Gabor Rona, and Derek Jinks, it is worth recalling that the United States position on the interplay between international humanitarian law and international human rights law, and on the extraterritorial application of human rights obligations, has been in flux. (By way of disclosure, I joined the State Department after the Fourth Periodic Report was submitted, and my office–the Office of Global Criminal Justice–is not involved in the substantive drafting of human rights reports). This post analyzes the current state of the US position and its change over time.
In its 2011 Fourth Periodic Report, the United States backed off a Bush-era position that international human rights law does not apply in a time of armed conflict when international humanitarian law applies. In particular, the United States averred at ¶ 506:
With respect to the application of the Covenant and the international law of armed conflict (also referred to as international humanitarian law or “IHL”), the United States has not taken the position that the Covenant does not apply “in time of war.” Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of application.
The United States continued by noting that “typically” it is international humanitarian law that regulates the conduct of states in armed conflict situations, according to the doctrine of lex specialis. In the next breath, however, the U.S. submission states at ¶ 507:
In this context, it is important to bear in mind that international human rights law and the law of armed conflict are in many respects complementary and mutually reinforcing. These two bodies of law contain many similar protections [such as the prohibition against torture].
Later, the submission noted that the choice of law question is context- and fact-specific:
Determining the international law rule that applies to a particular action taken by a government in the context of an armed conflict is a fact-specific determination, which cannot be easily generalized, and raises especially complex issues in the context of non-international armed conflicts occurring within a State’s own territory.
These passages suggest both a more relaxed understanding of the relationship between these two bodies of law and an imperative to harmonize our legal obligations. In addition, this language suggests that it is the United States’ view that there may be aspects of a state’s conduct that are, in fact, governed by human rights law, even during a situation of armed conflict. Thus, human rights law can be employed as an interpretive aid to add content to undefined terms in international humanitarian law, such as “judicial guarantees” and “humane treatment,” or to expound upon treaty obligations, as in situations of occupation or detention when the occupying state exercises plenary power over territory or individuals.
Despite the Fourth Report’s claim that the United States “has not taken the position” that human rights do not apply in armed conflicts, prior administrations have, in fact, argued precisely this point. This was first addressed in the 2005 Report, which consolidates the Second and Third Periodic Report as the United States was in arrears. (The initial Report of the United States to the Committee, submitted in 1994, did not address these issues at all). In response to a request for information concerning the treatment of detainees in the detention center on Guantánamo Bay Naval Base, the United States submitted that the entire topic was outside the purview of the Committee for the reason that the ICCPR does not apply extraterritorially. In addition, it was argued at ¶ 130 that:
The United States also notes that the legal status and treatment of such persons is governed by the law of war.
The United States argued this position more forcefully in litigation before the Inter-American Commission of Human Rights involving the legality of the Guantánamo detention center. In its 2002 brief before the Commission (styled “Response of the United States for Request for Provisional Measures—Detainees in Guantánamo Bay, Cuba”), the United States argued:
- It is humanitarian law, and not human rights law, that governs the capture and detention of enemy combatant in armed conflict (p. 15).
- This case … involves solely the interpretation and application of specific articles of the Geneva Convention and related customary international humanitarian law… (p. 20).
- International human rights law is not application to the conduct of hostilities or the capture and detention of enemy combatants, which are governed by the more specific laws of armed conflict (p. 21).
The Inter-American Commission ultimately issued precautionary measures on behalf of all individuals then detained on Guantánamo. (See here and here).
The Fourth Periodic Report was not as pioneering when it comes to the extraterritorial application of human rights norms—an issue not yet addressed by the Jinks/Corn/Rona series. This vexing interpretive question turns on the meaning of the second “and” in ICCPR Article 2(1), italicized below:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind…
The United States has historically interpreted this provision to mean that it owes duties only to those individuals who are within both its territory and its jurisdiction. Thus, in its 2005 Periodic Report, the United States insisted at ¶ 130:
[T]he obligations assumed by a State Party to the International Covenant on Civil and Political Rights apply only within the territory of the State Party.
A more expansive interpretation of Article 2(1) yields the conclusion that the Convention applies to two classes of individual:
- Persons within U.S. territory; and
- Persons within U.S. jurisdiction.
The latter would include, at a minimum, individuals within the effective but extraterritorial control of a state party. A difficulty of this disjunctive position arises, however, when one attempts to identify examples of persons who are within a state’s territory, but not its jurisdiction. At a minimum, this category of individual would include persons on a portion of the territory of the state party that is controlled by a rebel or insurrectionist party in a non-international armed conflict or is otherwise outside of the central government’s effective control.
In ¶ 505 of its Fourth Report, the United States coyly acknowledges its prior position on extraterritoriality, but also takes notice of three important legal sources setting forth the contrary view. The paragraph states in full:
The United States in its prior appearances before the Committee has articulated the position that article 2(1) would apply only to individuals who were both within the territory of a State Party and within that State Party’s jurisdiction. The United States is mindful that in General Comment 31 (2004) the Committee presented the view that “States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.” The United States is also aware of the jurisprudence of the International Court of Justice (“ICJ”), which has found the ICCPR “applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory,” as well as positions taken by other States Parties.
Thus, the United States took specific notice of:
► General Comment 31 (2004) on the “Nature of the General Legal Obligation Imposed on States Parties to the Covenant,” in which the Human Rights Committee determined that the latter, more inclusive, interpretation was the correct one. In ¶ 10 of this General Comment, the Committee wrote:
States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.
► Jurisprudence of the International Court of Justice (namely, ¶ 111 of the 2004 Advisory Opinion on Legal Consequences on the Construction of a Wall in the Occupied Palestinian Territory) finding that the ICCPR is applicable when states exercise their jurisdiction extraterritorially, as in a situation of occupation.
► The contrary views of other states.
To this list, we can add a number of other judicial opinions, such as the line of cases emerging from the European Court of Human Rights and the Inter-American Court of Human Rights grappling with the reach of the regional human rights treaties. The current state of the law would dictate that human rights norms apply wherever a state exercises de facto control over territory (including in the sense of undertaking governmental functions) or individuals, as also noted by Meg Satterthwaite in her post on the al-Liby rendition.
The Fourth Report’s short and humble ¶505 is important; while the United States does not fully denounce its prior views, it does acknowledge that its position is increasingly out of step with this trend of decision. In the most recent in interaction in preparation for the aborted hearing, the Human Rights Committee requested clarification on the extraterritoriality issue, but the United States in its written response simply referred the Committee to the original submission.
For background, the United States’ prior submissions to the Human Rights Committee are available here.