Trump vs. International Law: Exploiting the Legal Gaps Left by the Obama Administration

[Daphne Eviatar is the Director of Amnesty International USA’s Security with Human Rights Program.]

Harold Hongju Koh has written an impressive and disturbing account of many of the ways the Trump administration has undermined global institutions and subverted the international rule of law. He also offers some hope for those of us watching with horror as the current administration regularly upends basic norms and assumptions about presidential behavior and the U.S. role in the international arena. Koh has left out of his narrative, however, the ways which the Obama administration, by failing to clearly acknowledge and abide by the law in certain circumstances, contributed to the situation we now find ourselves in, at least in the national security arena. This is disappointing.

On the hopeful side, Koh argues that Trump’s strategy is not likely to succeed, so long as committed individuals at all levels of society, including in government, continue to resist it. What Koh calls the “transnational legal process” doesn’t turn on a dime, and collective resistance to Trump’s efforts by insistence on continued application of the law may just exhaust him enough that he’ll claim victory and walk away, leaving the international legal order largely intact, albeit a bit battered.

The “transnational legal process” is more than the system of international treaties and customary law, but “the interactions that lead to interpretations of international law that become internalized into, and thereby binding under, domestic law,” Koh writes. “These internalized rules create default patterns of international law-observant behavior for all participants in the process. Those default patterns become routinized and ‘sticky’ and thus difficult to deviate from without sustained effort.”

Just like people develop habits of behavior that become ingrained and harder to change the longer we repeat them, so nation-states develop patterns of behavior that become part of the fabric of social and political expectations and become difficult to break.

Indeed, this is critical to the development of international law, particularly because customary international law is based on how nations behave and interpret the law. The more nations interpret international law to forbid extrajudicial killing, for example, and better yet enforce the law, the more the law “sticks” and the harder it becomes for that same country, or others, to interpret it differently later.

In light of this description, I was struck by Koh’s decision not to mention, in his chapter on “America’s Wars,” the US insistence that international human rights law does not apply to its actions overseas, and the extraordinarily destructive impact of that interpretation.

The Obama administration, like the three administrations before it, dating back to 1995, explicitly denied the applicability of international human rights law, particularly the International Covenant on Civil and Political Rights (ICCPR), to any US actions abroad. The consequences have been devastating.

In the context of detention, for example, the US consistently maintained that the right to due process provided by the ICCPR did not apply to its detention of hundreds of Afghans at the Bagram air base in their country. President Obama eventually washed his hands of the problem by turning most, but not all, of those detainees over to the Afghan government as part of a larger negotiated troop withdrawal. The detainees at Guantanamo, meanwhile, have remained stuck there without a legal process that meets internationally recognized standards for more than 16 years.

Perhaps even more destructive is the legacy this legal interpretation left for the Trump administration when it comes to the United States’ use of lethal force.

President Obama was criticized from both the political Left and Right because he intensified the use of Unmanned Aerial Vehicles, commonly known as “drones,” to conduct what were then called “targeted killings,” often in secret and outside war zones. Human rights organizations like the one where I work, Amnesty International, strenuously objected that such strikes outside recognized zones of armed conflict violated the right to life, enshrined in the ICCPR, unless they were in the service of thwarting an imminent attack on human life. From the right, lawmakers such as Rand Paul called such extrajudicial killings an outrage – at least if they were targeting US citizens.

The ICCPR, appropriately read to apply to US extraterritorial conduct, would likely have prohibited many of those killings. Under widely accepted international legal interpretations, IHRL prohibits the use of intentional lethal force against individuals unless it is strictly unavoidable to protect against an imminent threat to life. Within an armed conflict, human rights law continues to apply but so does International Humanitarian Law (IHL); under IHL — rules on the conduct of hostilities — members of enemy armed forces (and civilians directly participating in hostilities) may be directly targeted with lethal force if it is militarily necessary to do so; but outside an armed conflict, IHL does not apply and the more stringent restrictions of IHRL must be followed. The Obama administration maintained its position that human rights law did not apply to the US beyond its own borders or during armed conflict even while Koh was Legal Advisor to the State Department. The scope and breadth of the US drone killings program ultimately led to widespread international condemnation, which led Obama to restrain the use of force, as a matter of policy, as Koh describes. But the change was only a matter of policy; it was never presented as legally required.

We now know, thanks to Charlie Savage at the New York Times, that Koh, as State Department Legal Advisor in 2010, actually advised the Obama administration to change its interpretation and to recognize the extraterritorial application of the ICCPR. He noted that the 1995 Interpretation has been questioned by the International Court of Justice, the Human Rights Committee, and some of our closest allies, many academics, human rights experts and NGO commentators. “It also stands in tension with the recognition by regional human rights bodies of extraterritorial obligations under other human rights instruments,” he wrote. Koh continued:

In my view, the 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, particularly when those positions can be reexamined in a way that enables this Administration to turn the page on the past by disengaging from an increasingly implausible legal interpretation.

Our prior position has been a source of ongoing international tension, with significant deleterious effects on our international human rights reputation and our ability to promote international human rights internationally. The prior administration was severely criticized in U.N. fora, by important U.S. allies, by members of Congress, by domestic and international human rights groups, and in the domestic and international media. The 1995 Interpretation is seen as allowing alleged incidents of abusive extraterritorial practices such as torture and “extraordinary rendition,” and as immunizing such practices from legal review by preserving the policy option for U.S. personnel to act in a “legal black hole” once they step outside the territorial United …

Despite the clearly and repeatedly asserted U.S. territorial position since 1995, only one other state – Israel – has taken the position before the Human Rights Committee that the Covenant is categorically limited to a State Party’s territory, and it did so only in the last few months. Other U.S. allies (Australia, Belgium, Germany, the Netherlands, and the United Kingdom) have instead acknowledged the possibility of some form of extraterritorial application of the Covenant or asserted their commitment to some form of extraterritorial compliance with the ICCPR…

In other words, Koh explained, the United States has been an outlier on this issue, and in so doing, has consistently undermined the development of both patterns of practice and of customary law in this area.

The Obama administration unfortunately refused to adopt Koh’s position. To its credit, it did eventually take a positive step toward accepting the view that the Convention Against Torture applies extraterritorially, though concerns remain. Even then, the Obama administration declined to prosecute those who ordered torture and enforced disappearance of detainees, undermining the efficacy of that law as well.

All of this appears to have been part of the “translation approach” Koh encourages in his book, wherein a government doesn’t actually follow the law, but instead makes “a good-faith effort to translate from the spirit of existing rules” to new situations. Yet as we’ve seen, much can get lost in the translation — including a future administration’s respect for the law and willingness to even consider its dictates.

Indeed, the US refusal to accept the otherwise widely-held position that the ICCPR is applicable to any US conduct outside its own borders is an unfortunate example of how international norms develop, or are undermined, and the consequences. US failure to recognize the legal limitations on its use of lethal force, for example, whether via drones or otherwise, to kill people outside established theaters of armed conflict now remains an entrenched part of US policy, which President Trump can exploit at will. It has also set a dangerous example for other countries to follow.

This implausible interpretation of the ICCPR is an important part of the U.S. government’s position, ever since the 9/11 attacks, that the U.S. is engaged in a “global war on terror” that initially rejected even the Geneva Conventions as “quaint” and inapplicable — a position later corrected by the Supreme Court. But the US still maintains that a “global war” framework allows it to ignore human rights such as the right to life protected under the ICCPR by declaring the entire world a potential battlefield where the ICCPR does not apply to US conduct.

Koh writes that Obama “abandoned” the claim of an open-ended “war on terror.” But the Obama administration continued to maintain that the US is in a non-international armed conflict with al Qaeda and unspecified “associated forces” everywhere – a borderless conflict against an ill-defined enemy, which has no basis international law. As a practical matter, it didn’t narrow the field of conflict at all. On the contrary, the conflict has spread to more countries, so that the US under the Trump administration has employed lethal force in at least eight different countries, and there is no end in sight for what Koh himself laments has become a “Forever War.”

The US position affects more than US conduct: it also serves to expand that interpretation of international human rights law around the world. Increasingly, the U.S. military operates “by and through” partner forces, meaning it relies on military forces of its allies in other countries where the US perceives its enemies are located. As part of that reliance, the US trains those partner forces, including in the international laws that apply to its use of force. Because the US military does not acknowledge the applicability of the ICCPR extraterritorially, or during armed conflict (a view which Koh’s memo on the ICCPR did not challenge) it trains its partners likewise. While the US trains foreign militaries to abide by IHL, as the US military interprets it, it does not train foreign militaries to abide by international human rights law, even when they are operating outside an armed conflict.

So the Afghan, Kenyan or Cameroonian militaries are being trained by the US that their actions are not constrained by human rights law – including when they are using lethal force to kill individuals outside war zones. This has practical, real-world consequences. To quote Koh in his new book: “It is precisely the legal advice the generals are getting that ensures that they are engaged in lawful acts of war, and not illegal acts of summary execution.”

The disregard of international human rights law in extraterritorial uses of force and detention is a dangerous norm that the Obama administration helped further by spreading patterns of practice that now, to use Koh’s language, “stick” in the US government and beyond. They also gave the green light to the Trump administration to discard the policies that the Obama administration eventually developed to try to restrain that use of force, but which it maintained were adopted at the president’s discretion.

Koh was criticized harshly for publicly defending Obama’s drone program during his tenure at the State Department. Of course, he was under the institutional constraints of his position as Legal Advisor at the time. But Koh is no longer in the administration and is in an excellent position to advocate for acknowledgement of the constraints that international human rights law places on a government’s use of lethal force, including outside its own territory.

As Koh writes, the problem isn’t the use of drones technology, which can be used in rights-compliant ways. Drones may make it easier to kill certain individuals, but the problem arises when the US uses any sort of lethal force to target individuals that the US does not have clear legal authority to kill. Contrary to Koh’s argument, however, the law need not, and should not, be “translated” to apply to drones differently. International human rights law applies to the use of drones to kill just as well as it applies to the use of a fighter jet or a handgun. And it is likely that in some cases, particularly those outside of war zones, US drone killings were unlawful under the ICCPR. The US attempt to “translate” rather than acknowledge the law’s applicability allowed those killings to happen and encouraged other countries to adopt the same interpretation and similarly engage in extraterritorial extrajudicial killing with impunity.

None of this is to detract from Koh’s accurate description of the Trump administration as making matters exponentially worse, having taken the gaps left by President Obama and extended them for miles in all directions, further undermining human rights, international cooperation and respect for international rule of law. And Koh is correct that Obama over time attempted to bring US policy and practice more in line with international human rights law and norms in many instances, although not completely. But the failure of the Obama administration to ground those policy changes in a tenable interpretation of international human rights law has left the US in the position now of not only engaging in potentially unlawful practices around the world, but actively encouraging other nations to violate human rights law themselves.

As those practices are repeated over time they create entrenched global norms and patterns of behavior, as Koh argues throughout this new book. And once internalized, such rights-violating norms “stick,” becoming increasingly difficult to change.

While I hope Koh is right that the international legal framework will survive today’s attacks, prominent lawyers and legal scholars like himself could do much to help that cause by insisting on actual compliance with international human rights law rather than “translation” of the law to suit a government’s purposes at any given time.