US Submits Its First Report to the UN Human Rights Council

by Kevin Jon Heller

The report is here.  I have neither the time nor the stomach to fully engage with it, but I couldn’t let paragraph 82 pass without comment:

82. The United States is currently at war with Al Qaeda and its associated forces. President Obama has made clear that the United States is fully committed to complying with the Constitution and with all applicable domestic and international law, including the laws of war, in all aspects of this or any armed conflict. We start from the premise that there are no law-free zones, and that everyone is entitled to protection under law. In his Nobel Lecture, the President made clear that “[w]here force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct…[E]ven as we confront a vicious adversary that abides by no rules…the United States of America must remain a standard bearer in the conduct of war.”

This is the clearest statement I’ve found that the US believes — wrongly — that the global war on terror formally qualifies as armed conflict.  (Which is convenient, given the US’s intention to ramp up drone strikes against Al Qaeda in Yemen.)

I also had a nice chuckle at the idea that the US “start[s] from the premise that there are no law-free zones, and that everyone is entitled to protection under law.”  That will certainly be news to the three men (at least) the Obama administration transferred to Bagram so they would not have the right to file habeas petitions, a move recently endorsed by the D.C. Circuit in Al Maqaleh v. Gates.

http://opiniojuris.org/2010/08/26/us-submits-its-first-report-to-the-un-human-rights-council/

18 Responses

  1. Yes, but most of us outside of the international law community see conflict, and see arms being used, so we infer that there is an international armed conflict, i.e., war, and therefore the rules of war apply, and therefore there is at best limited room for habeas corpus. We are indeed ignorant, but we want to survive.

  2. Response…
    BUT, the United States cannot be at “war” with al Qaeda, which does not even meet criteria for “insurgent” status under international law (e.g., by controling territory as its own and by fielding military units in sustained hostilities), the lowest status for armed conflict under international law.
    Further, the United States is NOT in compliance with relevant laws of war that have been applicable to the real wars in Afghanistan and Iraq, e.g., laws of war that require the Obama Administration to either initiate prosecution of or to extradite all persons who are reasonably accused of war crimes as direct perpetrators, those who authorize or order, and those who are complicitors–for example, the following persons who are reasonably accused: former President Bush, former Vice President Cheney, Rice, Gonzales, Rumsfled, Bybee, Yoo.  See, e.g.,
    http://ssrn.com/abstract=1331159

  3. But in the very next post you support immunity for the UN from civil suits — effectively allowing the UN to exist in a “law free” zone. …

  4. Kevin, you say “This is the clearest statement I’ve found that the US believes — wrongly — that the global war on terror formally qualifies as armed conflict.”   I find that odd.  After the attacks of 9-11, the Congress enacted the Authorization of the Use of Military Force, and the U.S. started detaining captured terrorists as combatants — even called them unlawful combatants, and justified their detention under the law of war, didn’t it?  I haven’t looked it up, but I have to imagine the U.S. took the position in its briefs before the Supreme Court in Hamd v. Rumsfeld and Rasul v. Bush that it was engaged in an armed conflict with al Qaeda, justifying its detention of enemy combatants.   And what was all the debate over what counts as a law of war offense in Hamdan, if not a recognition that the law of armed conflict was in play?  What am I missing?  Did I misunderstand the point you were making?

  5. I don’t think anyone would deny that there is an armed conflict in Afghanistan and now to a lesser extent Iraq.  What is “convenient” is that the United States is asserting that the global war on terror allows it to treat any country in the world where a suspected Al Qaeda member or sympathizer is held up as part of the battle field.

    Ed is correct that the United States took the position in Rasul and Hamdi that the US was engaged in an armed conflict with Al Qaeda but both men were captured in Afghanistan before being shipped to GITMO.  The law of armed conflict applied and these men arguably could have been held as long as the conflict continued but they were transferred to GITMO, which gave the detainees the right to file habeas petitions since GITMO is for all purpose a US territory.

    Applying the laws of armed conflict to a traditional battlefield such as Afghanistan is a far cry from asserting that the US’s actions away from the battlefield e.g., Yemen should also be subject to the law of armed conflict on the basis that the US government sees it all as the same global war on terror.

  6. Ed,

    Milan offered precisely the response that I would have.  It’s not that the US has never implied that it believes IHL applies anywhere it might use military force against Al Qaeda, but this struck me as a particularly clear statement to that effect.

  7. Dear Kevin,
    What I and some others here cannot fathom is why you cannot see that it is maifestly clear that the United States is involved in an epic struggle between itself (and allied parties in interest (i.e. Western democracy) and fanatic hooligans who consider you and me infidels deserving of conversion or death.  These folks do not abide by rules other than barbarism.  Yes these are the hooligans who will sack your law school, burn it down (with you in it unless you of course convert and teach Isalmic law).  Damn, I dont care what the U.S. has to do to protect its way of life.  The U.S. should not be held to the standard that you espouse while the bad guys get away with everything.  You need to get practical.  This is not a law school hypo this is real life.

  8. Milan & Keven, thanks for the clarifications.  I now see the point you are making.

    What I still don’t see, though, is how the quote from the U.S. Report to the UN HRC so clearly suggests that the current U.S. Administration is asserting that any place the U.S. finds an enemy in the Global War on Terror is the “battlefield.”  (By the way, we’ve stopped using the GWOT moniker, didn’t you get the memo?).  I don’t dispute that such may well be the U.S. position, but the document simply says the U.S. is “at war” with AQ and its associated forces – true enough (unless your argument is with the characterization of the struggle with AQ as an “armed conflict”) – and that the U.S. will comply with ALL applicable INTERNATIONAL law — which presumably includes the International Law on Jus ad Bellum, which would, I think, impose some restraints on the U.S. ability to take the war to AQ in places beyond the “battlefield.”

  9. Dear JohnnieWalkerBlue,
    So, let me get this straight. The US caused Iran to go fundamentalist by meddling in its politics from the later 1940s, the US funded the Muslim Brotherhood’s expansion in Germany and Europe from the 1950s, the US financed, armed, and trained the Talibans in the 1980s, the US withdrew from Lebanon and allowed free hand to Syria, the US invaded with a pretext Iraq thus making enemies in the whole Muslim world, and now YOU are telling the rest of the world that we should follow YOUR way of fighting terrorism!?! How dare you suggesting you have the slightest clue on how to deal with the rest of the world…this is really ridiculous…

  10. Hey Guy,
    Nonsense.  Moreover, you are sidetracking what I am saying.  It is true, is it not, that the United States is the target of fanatics who want to destroy it?  True.  Isn’t also that these folks would kill you if you dont convert?  Dont they consider us “infidels”.  Let the U.S. do what needs to be done.

  11. I am saying that the world cannot blindly trust how the US decides to fight its enemies. This does not mean that we should not do it together, but that the US should stop pretending that it knows what it is doing…

  12. JWB,

    Guy is not sidetracking what you are saying in the least.  He is pointing out, rightly, that terrorist groups hate the United States because of its policies toward the Muslim world over the past six decades, not because of our “freedom” or because we are “infidels.”  Let the US do what needs to be done, IHL and IHRL be damned?  That is precisely the problem — the evidence is overwhelming that our misguided approach to the war on terror (kill anyone the President decides is a terrorist, legal or not) is simply radicalizing Muslims further and swelling the ranks of groups like Al Qaeda.  So, in fact, it is people like you — people who are defiantly unwilling to consider the causes of terrorism — that are undermining US security.

  13. Kevin and Guy,
    I disagree.  Why? Because we are not dealing with formal states in traditional battle – plane against plane, tank against tank.  We are not dealing with warfare on an open battle field.  You have to realize that the “enemy” is using suicide attacks, missile firings into civilian areas, hand held missiles, undetectable explosives among loosely-organized groups accountable to no one.  AND, these groups have little incentive in avoiding civilian casualties or of upholding IHL. In fact, they brag about what they will do to captives, have videotaped captives being butchered and openly seek to destroy the infidels.  I believe that CIL and IHL were carefully designed to align the incentives of the parties to the conflict (i.e.,  states) ensuring they had strong incentives to obey the CIL and IHL.  I submit that it is unfair to impose these regulations only on the United States while the bad guys get away with murder (literally).  I am not in any way arguing the United States should purposely violate IHL or CIL.  What I am saying is to impose these laws on one side to a conflict is unfair and deprives the United States of the opoprtunity to defend itself.  By imposing these standards only on one side (i.e., the U.S.) you give the other side an enormous and irreparably harmful unfair advantage.  

  14. I wonder what policies the US must put into effect toward the Muslim world to escape this terrorist hatred. Should Israel have become a bi-national state? That’s just what the predecessor to Israel was, from 1917 to 1948; didn’t work. Should the US not have invaded Iraq? Muslim states have engaged in plenty of outright aggression. Should the US have intervened in the Six Day War or the Yom Kippur War on the Arab side? Why, when the US did not intervene in the Six Day War, and her only sin in Yom Kippur was supplying arms, while the Soviet Union was supplying the Arabs with arms. Should the US have pushed for more democratic governments in Muslim countries? All of the Muslim states are strong believers in national sovereignty.; look at the reception that “Responsibility to Protect” gets in the less-developed countries. Oh, wait … there was that CIA-sponsored coup in Iran in 1954. Presumably that justifies everything. 

  15. It is always possible to say that the US has done this or that which terribly offends “the Muslim world”.  But “the Muslim world” has done things on its own which happen to offend not just the US but non-Muslims in general. I don’t understand how the bombings carried out in American and European cities can be viewed as punishments for US violations of “IHL”. It’s a far cry from such bombings when US agents apprehend someone in, say, Europe whom they have reasonable grounds for suspecting of terrorist acts, and “render” him to, say, Egypt. To deny this is to fail to draw the distinction between an possible abuse and an outrage. Such a distinction of course relies on who is making the distinction.  I think the problem is that Prof Heller does not like the idea of the US making its own determinations of what is reasonable. Perhaps the US should submit its determinations to the UN Human Rights Council for approval. But the HRC seems such an unreasonable entity that I strongly prefer the unaided evaluation of the US.

  16. …amazing selfcenteredness…

  17. I’m not so sure that this is a clear statement that we feel we’re formally at war. The paragraph states that the US is “currently at war with Al Qaeda and its associated forces.” There are other written statements from this and recent administrations pointing out that we’re “at war with poverty” and “at war with joblessness” and “at war with obesity” and on, and on.

  18. TJM. I’ve never seen a Congressional Authorization to use military force against joblessness or obesity, or poverty.

    Since there is a specific AUMF in this case, it cannot be said to be a metaphorical war only.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.