[Editor’s Note: Just Security is holding a “mini forum” on the extraterritorial application of human rights treaties in light of the release of two State Department memos and the US appearance before the UN Human Rights Committee the week of March 10, 2014. This series includes posts from Jennifer Daskal, Daphne Eviatar, Ryan Goodman, Jonathan Horowitz, Marko Milanovic, and Beth Van Schaack, and Letters to the Editor from Manfred Nowak and Martin Scheinin.]
The New York Times reports today that the United States government is likely to continue to insist that the international human rights law embodied in the International Covenant on Civil and Political Rights, ratified by the United States, does not apply to U.S. actions beyond our national borders. That’s not only disappointing to international human rights advocates who’ve long urged a change in that stance, but it’s bad news for anyone interested in the efficacy of U.S. counterterrorism policy.
When President Obama took office, he announced, to much fanfare, that he was ending the use of torture, closing secret CIA prisons, and planning to close the Guantanamo Bay detention center. He signed those executive orders, at least in part, in the name of improving U.S. national security.
As Gen. David Petraeus put it in February 2010, “whenever we have, perhaps, taken expedient measures, they have turned around and bitten us in the backside… Abu Ghraib and other situations like that are nonbiodegradable. They don’t go away. The enemy continues to beat you with them like a stick . . . .”
As a matter of policy, President Obama has made some progress in terms of human rights and counterterrorism. The U.S. government appears to no longer be torturing detainees in U.S. detention centers (though the Bush administration seemed to have largely stopped that practice by that point as well), and President Obama is finally picking up the pace on transferring some of the remaining Guantanamo detainees back to their home countries. But as we know all too well, policies are easily reversible. Until the United States agrees that international human rights law actually prohibits these sorts of basic human rights violations, the United States can’t expect to be trusted. That won’t help cooperation from U.S. allies, and it will make it far too easy for enemies to dismiss the United States as hypocritical, with no right to expect other countries to abide by international law. If President Obama wants to leave a lasting legacy of progress in international human rights, he should insist on making clear that the United States is indeed bound by international human rights law.
The consequences of not conceding this are evident. In Afghanistan, for example, the Obama administration for years insisted that none of the thousands of detainees detained indefinitely at the Bagram prison under U.S. control were entitled to the minimum due process rights guaranteed by the ICCPR. The United States eventually wiggled out of that controversy by turning most (but not all) of the detainees over to the control of the Afghan government. The United States continues to conduct its so-called “targeted killing” program along with a range of other military operations.
Members of Congress outside the intelligence committees have asked for years, to no avail, to be briefed on the authorities under which the U.S. conducts these operations. The administration has claimed that the presidential policy guidance issued last year provides intense internal oversight and ensures that the operations meet or exceed international standards. When American Special Operations teams enter Libya or Somalia, for example, it’s in their interest, and all of ours, for civilian bystanders to believe the Americans will not torture, abuse or kill them. The U.S. claim that international human rights law that prevents arbitrary killings does not apply to U.S. actions abroad flies in the face of that goal.
Imagine how the U.S. position comes across in places like Yemen, where the United States has stepped up its drone campaign and reportedly killed hundreds of people without explanation. Sure, as a matter of policy, President Obama has said that the United States will only target people with lethal force beyond “the Afghan theater” who pose a “continuing and imminent threat” to “the American people,” and when there is a “near-certainty” that civilians won’t be killed or injured. But the dozen people killed when a U.S. drone attacked a row of cars driving to a wedding party in Yemen in December, for example, doesn’t seem to comport with that policy. And since the United States maintains that this is only a matter of policy, and not of law, the U.S. government can change (or simply ignore) its own policy statement as it chooses. It need not account to anyone for the results of its actions.
This position may help assuage leaders in the military or CIA, who want the latitude to respond to a wide range of threats with lethal force regardless of the annoying constraints of law. But the civilian leadership of the country is responsible for the broader long-term goal of maintaining U.S. national security without remaining in a constant state of war, which would ultimately be counter-productive. President Obama has said he wants to find a way to take the country off of a war footing, to thwart terrorist threats using a set of far broader and more comprehensive non-lethal means. So long as he maintains human rights law doesn’t apply to United States actions abroad, how can he be believed?
For U.S. commitments to be taken seriously, the government must be willing to say that its own actions are constrained by international human rights law, as the vast majority of our allies and independent and widely-respected international bodies such as the International Committee for the Red Cross, interpret that law. The State Department’s former senior lawyer, Harold Koh (a contributor to this blog) and the former assistant secretary for human rights, Michael Posner, both read the law to apply to U.S. actions in other countries. For the U.S. government to keep denying this broadly-accepted interpretation will only continue to undermine global faith in the United States’ commitment to the rule of law and U.S. standing in the world. It will also continue to endanger U.S. national security.