The Columbia Human Rights Law Review, in collaboration with the Columbia Law School Human Rights Institute, recently published a symposium edition dedicated to the relationship between the ‘Forever War’ and international human rights and humanitarian law. The issue is freely accessible online. It contains a series of articles—on torture, detention, surveillance, and the influence of U.S. counter-terrorism policies on other countries—that are highly relevant today, especially given the multiple challenges to international law posed by the Trump administration.
For example, recent reports warning of Trump’s plans to hold new ISIS detainees at the detention facility in Guantánamo Bay illustrate why this edition of the law review is so timely. Not only do Trump’s plans revive questions about the future of current detainees, they also elicit questions about foreign allies’ willingness to cooperate with the US in new detention operations, and the legal framework governing them. The articles in the new law review offer both scholarly and practical perspectives on important questions of international law governing detention raised by U.S. “Forever War” policies that have been given new relevance by the Trump administration, and on the effects of U.S. actions and policies on other countries and relations with them.
Two of the articles in the symposium edition explore the international legal frameworks governing torture and the temporal limits on armed conflict-related detention. Both authors offer valuable guidance as we grapple with the prospect of ongoing detention at Guantánamo and possibly new detention operations in Iraq, Syria, and even Yemen.
In The United States, the Torture Convention, and Lex Specialis: The Quest for a Coherent Approach to the CAT in Armed Conflict, Ashika Singh examines the position that the US has taken on the applicability of the Convention Against Torture (CAT) in armed conflict, and offers guidance in determining the CAT’s interaction with the law of armed conflict (LOAC). To demonstrate that the treaty remains applicable during armed conflict, the author undertakes a review of various historical documents including the treaty’s travaux préparatoires and the ratification package presented to the U.S. Senate. Singh then traces the U.S. position on the CAT’s application in armed conflict by examining U.S. statements and positions since its ratification of the treaty, and finds that, “even when viewed primarily through the restrictive lens of the US perspective,” the “far more legally sustainable interpretation of the treaty is that the CAT continues to apply during situations of armed conflict.”
To illustrate how to apply complementary or competing obligations under the CAT and LOAC, the author applies the lex specialis approaches of “harmonization” and “conflict resolution” to three rules: the definition of torture, the exclusion of evidence obtained by torture, and the right to redress. Singh emphasizes how, as the United States wrestles with the consequences of its past decisions and charts a course for future decision-making, it must apply a principled and consistent approach founded in the rule of law.
In The End of Armed Conflict, the End of Participation in Armed Conflict, and the End of Hostilities: Implications for Detention Operations under the 2001 AUMF, Nathalie Weizmann explores the conditions on the ground that will determine the end of an armed conflict, the end of participation in a continuing armed conflict, and the end of hostilities – three scenarios that would have implications for the release of persons who are deprived of their liberty in connection with the war the US claims it is waging against al-Qaeda, the Taliban and associated forces under the 2001 Authorization for Use of Military Force (AUMF). Weizmann’s article also compares these tests under international law with U.S. domestic approaches to determining the end of war or the end of hostilities. Importantly, the author notes that the international and domestic law approaches do not necessarily coincide.
Under the law of armed conflict, once one of the three “end” scenarios arises, the parties must release persons who are detained for security reasons related to the conflict. Fundamental protections remain until the moment of release, while transfers between countries are subject to the rule of non-refoulement, which prohibits States from transferring persons within their control to the control of another State if there is a real danger that their fundamental rights will be violated after the transfer.
As highlighted in a series of Just Security posts (see, for example, here, here, here, and here), foreign governments will need to be especially wary of their own legal obligations when cooperating with the U.S. government in the Trump era. During his first three weeks in office, Trump’s actions should already have given foreign leaders cause for concern. The other two articles featured in this issue provide in-depth analysis also relevant to this issue.
In his innovative piece, entitled The Forever War, in the Hands of Others: Tracing the Real Power of U.S. Law and Policy in the War on Terror, Chris Rogers assesses the influence of U.S. counter-terrorism policies on Afghanistan and Pakistan. Using his in-depth knowledge and extensive experience in the region, Rogers contrasts two very different outcomes. In Pakistan, U.S. “War on Terror” policies helped to legitimize its own assertion of broad war-like detention powers and a lack of transparency when using its own drones. Afghanistan, on the other hand, ultimately rejected U.S. pressure to adopt an internment regime akin to U.S. practice at the Bagram detention facility in Afghanistan.
The example of Afghanistan is particularly interesting because it demonstrates how countries—even those almost completely dependent on U.S. assistance—can resist U.S. pressure to violate human rights. Rogers highlights how civil society mobilization and pressure were instrumental in this outcome, alongside domestic political interests and in the face of strong incentives for the Afghan government to expand its detention powers. This unique case study is a powerful illustration of the possibilities of resistance to malign U.S. influence beyond Europe, which, perhaps too often, has been the main focus of human rights and civil liberties activists.
In Surveillance and Digital Privacy in the Transatlantic “War on Terror”: The Case for a Global Privacy Regime, Valsamis Mitsilegas examines in detail the U.S. and European Union privacy regimes, and the imperfect accommodations reached between the two in transatlantic cooperation agreements—regimes that may already have been undermined by a Trump administration Executive Order that appears to exclude non-U.S. citizens from privacy protections. Mitsilegas offers recommendations for improvements to the existing schemes and a proposal for global privacy standards. European and other states would do well to read his analysis to ensure that any agreements on data-sharing and privacy protection with the Trump administration contain robust and adequate protections and are properly followed.
This symposium edition of the Columbia Human Rights Law Review is recommended reading for anyone looking to the post-9/11 period for lessons learned and examples of how to confront the enormous challenges to human rights, LOAC and other areas of international law, that we currently face. It is a timely and invaluable primer on some of the key international legal issues that arose as a result of the “Forever War” and have been given enduring relevance by the policies advanced by the Trump administration.
* The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.