by Kenneth Anderson

Bobby Chesney and Human Rights First’s Daphne Eviatar debate the extent to which the ICCPR applies in Afghanistan and, in important matters, in regimes of IHL.  The back and forth at Lawfare is well worth reading.

Let me be distressingly candid.  This is an area in which I find it difficult to get “inside” the legal debate because I find it irresistibly a matter of public choice theory, which is to say, it is simply a political move by political actors to get a new set of standards and decision-makers into something that started out with another set of standards and decision-makers. To be clear, I do think there are important legal arguments and I don’t mean this statement of reductionism to mean that it is a better way of seeing the issue, but I do find it hard to be seized of the legal arguments as legal arguments.  I don’t think the two regimes fit together meaningfully, but from the standpoint of public choice theory, the contradictions and ambiguities are a feature, not a bug, because those features automatically create new opportunities to draw in new decision-makers.  (I realize this must sound cynical, but … public choice theory?  Cynical? But I repeat myself.)

(By the way, I am attending today the Yale International Law Journal and Yale Forum on International Law symposium featuring folks from the Junior International Law Scholars Association.  Topic is non-state actors and international law.  Very exciting panels; I am grateful to be included as a moderator of the panel on Accountability for International Organizations in Global Governance, and we are about to begin a panel on Kiobel and the Alien Tort Statute.  Goodness, these folks are all very smart and frighteningly articulate.)


4 Responses

  1. Perhaps a little of Ken’s point, but what I find interesting is that Prof Chesney:

    a. appears to agree that the conflict is a NIAC, and

    b. states that IHL does not require the rights suggested by Ms Eviatar;

    however, he does not identify what part of the law applicable to NIAC permits detention in the first place. Perhpas by identifying the law that permits detention, one could then determine under what conditions that detention must be exercised.

  2. Response…
    And its an int’l armed conflict anyway (otherwise U.S. soldiers are not “combatants” with “combatant immunity” — see http://ssrn.com/abstract=1520717
    In any event, human rights law applies in all social contexts, including during any armed conflict.  The important question that follows is what rights, applcable to whom?  See id. at pp. 265-66, 269, 272-73 & n.98.

  3. We sit days in soft chairs, retire evenings to comfortable homes, distress ourselves at most with the viscisitudes of interpersonal relations, and fear for ourselves neither ruin, nor destruction, nor any gross hardship.  The terms “aerial bombardment,” or “submarine warfare,” or “artillery barrage” or “front” have no meaning for us.  We cannot imagine them as did our grandparents, as living possibilities that might disrupt our lives.  Even that closer spectre – the sudden nothing of nuclear anhililation – has ceased these twenty years to haunt us.  There is for us no opposing strength, no foreign potency we fear, no enemy that, but for our watchfulness, might rain on our homes a shower of shrapnel.  Insecurity is unreal to us.  Nothing is at stake.

    Were legal questions of this nature put first through the filter, “How does this affect my chances of living out my days in safety?” the debates would, I suggest, look a great deal different.  Unequal reciprocity, at least, would carry more than merely theoretical costs.

    The debate now is ultimately about how we and our friends will permit ourselves to behave.  We are talking to ourselves, and only in that sense can the mere legalities ever be determinative.  Once suppose an opponent with real power to hurt us, with a will beyond our rulemaking, who might sign and feel no compunction in the clutch, and it will again become evident how little power paper holds – even paper read by robed dignitaries in panelled rooms, somberly lit.  It will again become evident, what was evident to the drafters at the Hague and Geneva: that because the only secure guarantee of compliance is self-interest, little beyond what can be secured by self-interest can reasonably be attempted.

    For a moment in 2001 and 2002, we in the United States believed our safety at stake – and acted like it.  Perhaps we were wrong in that assessment.  Perhaps it is right that the US and the West go on talking to ourselves about how we will permit ourselves to behave – because in fact nothing really is at stake.  I, for one, cannot muster up the old sense of urgency: it has begun to seem put on.  But it is also possible that it seems so only because the actions we took when we believed the stakes were real have bought for us the space for such complaceny, and that disavowal therefore is unwise.

  4. Kenneth, please do a write-up of the international law, non-state group event at Yale. Sounds promising.

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