War Rhetoric Helps No One

[Sarah Kay is a human rights lawyer specializing in counter-terrorism and national security.] 

After seeing calls for the application of the 1949 Geneva Conventions in the current context of mass protests in the United States, it is time to return human rights law to where it belongs – that is, in situations of grave wartime injustice and disproportionate use of force. The GCs do not apply because this is not a situation of armed conflict. However, it is no secret to any US-based observer that human rights arguments, especially those that are treaty-based as opposed to present in constitutional amendments, fail to find their audience in court.

Given the United States’ large tendency towards isolationism despite being a permanent member of the Security Council, it is no surprise that not only are elected officials and the President invoke war language and insurgent acts, but that protestors themselves look to the laws of war to find protection from law enforcement violence. While there is much to be said on the use of tear gas or “less lethal weapons”, such as rubber bullets, long been discussed because of their used in counter terrorism operations in Northern Ireland, and also addressed in a recent opinion piece by the Special Rapporteur on extrajudicial executions, Agnes Callamard, there is no need to refer to the Chemical Weapons Convention.

The language of human rights in the United States usually stops at those outlined in the Constitution, despite the US having ratified foundational treaties, such as the ICCPR. It is this text that applies to the situation at hand and on which litigators should rest arguments claiming disproportionate use of state violence, not just by police against unarmed people of color, but against protestors as well.  In 1992, the US Congress issued an “unprecedented” number of reservations to the Covenant, as qualified by former President Carter. We are most familiar with those concerning the death penalty and refusal to ratify the corresponding optional protocol. But specifically, according to a study published by Northwestern Law in 2005,

It made understandings concerning the provisions on equal protection, compensation for illegal arrests, separate treatment of the accused from the convicted, and right to counsel, and the extension of the provisions in the treaty to federal states. Finally, it made declarations with regard to the treaty being non-self-executing, the rights that may be taken away during emergencies, the Human Rights Committee, and the savings clause on natural wealth and resources.

While most of the controversial comments over reservations concerned the application of the death penalty, some believed the US did in fact misunderstand the very purpose of the treaty:

In his article on American exceptionalism, Professor Koh described the world’s perception of the United States as “pushy, preachy, insensitive, self-righteous, and usually, anti-French.” Professor Koh attributes this image to four types of American exceptionalism: distinctive rights, different labels, the “flying buttress” mentality, and double standards.  Under this theory, it is the double standards that are the most dangerous and destructive to Americans.

We are already seeing a red herring in those reservations to the peaceful exercise of the human right to protest, including for unlawful arrests, some of which possibly already occurring. Trump, a president who has always fancied himself to be on the war footing, has always conflated leadership with use of force, no matter how erratic. That he is ordering the use of  counter-insurgency methods developed against civilian populations over the last two administrations is no surprise. Invoking the 1807 Insurrection Act will to increase law enforcement powers, already extremely militarized.

The history of deployment of military forces on US soil dates back to the country’s very own state of independence, and is traditionally limited out of respect for states’ agency – they must request intervention – but the Insurrection Act sought to override those requests. While still tied to civilian approval, through Congress,  post 2001 lawmakers understood the necessity to have provisions for domestic military deployment outside of the scope of a given state’s inability (or unwillingness) to respond. In a study on the matter published in the Journal of National Security Law in 2009, author William C. Banks refers to it as such:

Although  Congress  enacted  the  Posse  Comitatus  Act  in  1878 and  restored  a  statutory  presumption  against  federal  military  involvement  in  civilian  law  enforcement,  the  Insurrection  Act  overcame  the  statutory  presumption.  The 1871 law became part of the codified Insurrection Act and  its  provisions  were  relied  upon  by  nineteenth  and  twentieth  century  Presidents   to   deploy   federal   military   forces   in   the   states   in   various   circumstances when the states had not requested federal help. A   growing   national   effort   to   plan   for   homeland   security   after   September 11, 2001, brought new attention to the mechanisms that provide military  support  to  a  civilian  response  to  a  domestic  emergency.    (…)  U.S.  Northern  Command    (NORTHCOM)    commander    Admiral    Timothy    Keating    recommended that the Department of Defense be given “complete control” for  responses  to  disasters  like  Hurricane  Katrina:  “We  have  to  think  the  unthinkable may be possible, even probable.”

This is the situation in which the United States seems to find itself right now, with the language of insurgency applied to describe the activities of protestors reacting to the clearly deliberate killing of a young man, George Floyd, kicked and suffocated by a policeman, and Breonna Taylor, a medical professional shot by police inside her home. The danger of invoking the application of humanitarian law, even on the part of activists, is that it would elevate into one of armed conflict between belligerents the current conflict between citizens engaging in their lawful right to assemble and protest (I have to add, wearing the appropriate PPE to protect from further infecting their fellows) and a law enforcement apparatus that seems to be above accountability. Indeed, the application of the principle of qualified immunity has been raised over and over as illegitimate under a democracy; it is mentioned in Mrs. Callamard’s opinion piece as a gap in human rights protections and a violation of the fundamental right to equality

We do not need to turn to the law of war or turn to the well-oiled and too destructive machine of domestic counter terrorism and counter-insurgency to find where the US has failed. It is in the ICCPR, part II, Article 3 (a):  the right to an effective remedy whenever a violation has been identified. It is no news that the militarization of the police, a phenomenon that predates this chaotic presidency, has been an identified root cause of dysfunction in the criminal justice. Using counter-insurgency tactics against community organising, borrowing counter-terrorism tools (such as “designating” antifascists as a terrorist organization, especially in the absence of legal authority to do so) contributes to the escalation of violence. It would be a terrible mistake to allow the language of war to be used by activists, whose position would then elevated into – what? Combatants? Non-state armed groups? – while human rights law is well acquainted with the right to protest and resistance against state violence, and has been enriched over decades by the history of civil rights movements worldwide. We must re-integrate – wait: integrate – human rights law and human rights into the political and legal discourse in the United States. We must normalize the invocation of treaty protections in courtrooms. We must empower attorneys to use them without the fear of the arguments falling on deaf ears. We must educate the public on human rights as we much as we do constitutional ones.  A recent article from the New York Magazine states,

In the U.S., the police are the answer for everything. To an overdose, a noisy party, a counterfeit bill in a shop. They are the first and often the last resort for any complaint, no matter how petty. There’s no end to the responsibilities with which we have charged them and, no end, seemingly, to the tolerance they enjoy from the state. Even now, as unrest engulfs major cities for the fourth night in a row, the political class defers to its enforcers. Republicans demand more blood. Democrats, with few exceptions, declare their hands tied.

The police have every power that every state refuses to acknowledge because doing so would be a leadership failure. Human rights law is the perfect antidote, providing it exists in a space that allows it. Reform can start with revoking certain reservations to the ICCPR, and undo this exceptionalism to universal principles that apply to all. The Insurrection Act has always been used for riots: the 1914 Colorado Coalfield War (a labor strike, still labeled a war), the 1943 Detroit riot, the 1962 Ole Miss riot, the 1967 Detroit riot, the 1968 riots in Baltimore, Washington D.C. and Chicago, the 1989 Hurricane Hugo riots and finally, the 1992 LA riots. It is an extreme measure that has been leveraged against civil rights movements that have turned into unrest. Trump invoking this particular piece of legislation continues a long-standing history of state violence against movements pushing for human rights. There must be a reckoning away from counter-insurgency and into the realm of the right to assembly.