The United States’ Long (and Proud) Tradition in Support of the Extraterritorial Application of International Human Rights Law

[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 DaskalDaphne EviatarRyan GoodmanJonathan HorowitzMarko Milanovic, and Beth Van Schaack, and Letters to the Editor from Manfred Nowak and Martin Scheinin.]

If you read recent news reports and even expert commentary, you may be led to conclude that the US government has long and categorically opposed the application of international human rights law (IHRL) extraterritorially.  The historical record, however, is more nuanced.

The US government has, time and again, supported the extraterritorial application of IHRL—as a matter of customary international law. That practice assists US national security and foreign policy, as I explain below. However, the likely stance that the Obama administration will take at the United Nations this week—asserting that the International Covenant on Civil and Political Rights (ICCPR) imposes no extraterritorial obligations despite the State Department’s own Legal Adviser concluding otherwise—could pose a significant setback for US global strategic interests along this dimension.

I should note, at the outset, that I do not discount potentially valid concerns – along a different dimension – that application of the ICCPR might complicate other US policies. That said, the side of the equation that I explore here needs to be included in the balance.

Let’s start with a salient example of the US support of extraterritorial application of IHRL: reigning in Moscow’s interventions in other countries.

In the early 1980s in the wake of the Soviet Union’s incursion into Afghanistan, the State Department’s Annual Human Rights reports deplored “Soviet practices in Afghanistan which violated human rights.” In 1985, the UN Human Rights Commission passed a breakthrough resolution approving a report documenting “gross violations of human rights” in Afghanistan since Soviet troops swept into the country.  The Reagan Administration’s Ambassador to the UN, Vernon Walters, remarked that “Soviet and Afghan delegates to the UN ‘cannot refute’ a single statement in the report of ‘grave and massive’ abuses.” History repeated itself with Russia’s recent incursion into Georgia. The State Department’s Annual Human Rights Report’s criticisms included that “[t]here were no indications that [Russian] authorities were investigating reports from HRW [Human Rights Watch] and other sources that numerous civilians were physically mistreated in the areas under the control of Russian forces in Georgia during the August 2008 conflict in South Ossetia and Abkhazia.”

US recognition that human rights law applies to a state’s actions in foreign territory is not limited to the Soviet/Russian cases. The application of IHRL was part of the US effort to at least grapple with concerns about “atrocities by Indonesia troops in East Timor in 1975 and 1976 prior to the incorporation of East Timor into Indonesia.” In the early 1990s, the State Department condemned Iraq’s “abysmal record of repression of human rights” in its treatment of foreign nationals and civilians inside Kuwait. And the State Department later directed its harshest criticisms toward “Serbian responsibility for human rights abuses on the territory of Bosnia and Herzegovina.”

Do these US efforts to apply customary human rights law to other countries show hypocrisy on the part of the US? Not exactly. The US has officially accepted the application of that body of law for itself as well—including our armed forces. The US military’s 2013 Operational Law Handbook, for instance, states:

IHRL based on CIL binds all States in all circumstances, and is thus obligatory at all times. For official U.S. personnel (i.e., “State actors” in the language of IHRL) dealing with civilians outside the territory of the United States, CIL establishes the human rights considered fundamental, and therefore obligatory.

Given the existing acceptance of these norms for US forces acting in foreign countries, it is no wonder the Koh Memorandum calls on “this Administration to turn the page on the past by disengaging from an increasingly implausible legal interpretation” of the ICCPR. In other words, it is high time to harmonize our stance on customary international law with our treaty obligations.

The Administration is reportedly unlikely to alter its legal position at the UN this week. And that misstep will send, at best, a mixed signal and, worse, wreak havoc for other foreign policy and national security goals of the United States. For example, it will be widely seen as a legally dubious effort to resist the application of international human rights obligations to US actions in Afghanistan – despite the US invoking human rights obligations when the Soviets were in town. Moreover, the ICCPR serves as the backbone of customary international human rights law in many contemporary cases. Yet the administration’s position in Geneva will erode the strength of that normative system.

Finally, the US stance will also undercut the UN Human Rights Committee’s attempts to apply states’ treaty obligations to address serious human rights abuses in extraterritorial settings—including violations such as rape committed by peacekeepers and Russian abuses in Georgia (para. 13). Russia is also due to report before the same body as the United States in the near future, and Ukraine will obviously be on the agenda. How problematic that Putin now knows he will have a friend in Washington if Moscow tries to scuttle the Committee’s attention to Russian actions in Ukraine. It won’t be the last time such unsavory effects will result if the US doesn’t heed these compelling words from the Koh Memorandum:

[T]he 1995 Interpretation is no longer tenable and the USG legal position should be reviewed and revised accordingly. A presumption in favor of stare decisis in executive interpretation does not compel rote repetition of incorrect legal positions in reports to international bodies.

When the US engages the UN treaty members in Geneva later this week, those words will likely be on most everyone’s minds. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.