Author Archive for
Monica Hakimi

HILJ Online Symposium: Monica Hakimi Responds to Tim Meyer

by Monica Hakimi

[Monica Hakimi is the Associate Dean for Academic Programming and a Professor of Law at the University of Michigan Law School.]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

Thanks to Opinio Juris for hosting this symposium and to Tim for his very thoughtful comments. My article examines conduct that I call “unfriendly unilateralism”—where one state decides, outside any structured international process, to act unfriendly toward another. The economic measures that the United States and Europe are now taking against Russia in response to the Crimea situation are good examples. Likewise, before the U.N. Security Council authorized states to take a broad range of measures against Iran for its nuclear program, several states acted unilaterally.

Such conduct is, in my view, undervalued in the legal literature. Most international lawyers either dismiss unfriendly unilateralism as power politics that fall outside the law, or analyze it as a tool for enforcing the law—that is, for pressuring the target state to comply with existing law. In either event, the conduct is widely understood to be regretful or ineffective. To the extent that the conduct is inconsistent with the acting state’s own obligations, it also is unlawful—unless, of course, the acting state is enforcing the law after having been injured by the target’s breach.

My article’s descriptive claim is that unfriendly unilateralism can also play an important role in lawmaking. States variously use unfriendly unilateralism to: (1) preserve legal norms, (2) strengthen legal regimes by instigating stricter substantive standards or more rigorous oversight mechanisms, (3) reconcile competing objectives from different regimes, and (4) recalibrate regimes for changed circumstances. Of course, the idea that unilateral conduct can be juris-generative is not new; unilateral claims and counterclaims are a recognized part of the customary legal process. But when unilateralism is coupled with unfriendliness—that is, when the conduct is targeted at a specific state—international lawyers instinctively put on their enforcement lenses. They focus on how the conduct enforces existing law, not on how it helps make new law. For instance, several scholars have analyzed the unfriendly unilateralism against Iran as enforcement. Yet the acting states were using unfriendly unilateralism to support a broad and coordinated lawmaking effort. Their principal goal was to pressure Iran into accepting stricter substantive standards on nonproliferation and more rigorous oversight mechanisms. As the Iran example also demonstrates, unfriendly unilateralism is a fairly unique mode of lawmaking. Unlike in the ordinary customary process, a state that uses unfriendly unilateralism usually does not model the new norm. Rather, its unfriendly (and sometimes unlawful) conduct pressures the target into accepting or helping to develop an entirely different norm. This makes unfriendly unilateralism a potentially versatile and potent lawmaking tool. (more…)

Reply to Professor Waxman

by Monica Hakimi

Thanks to Matt for his very thoughtful comments. I agree with almost all of them, so will take this opportunity to amplify on some of the issues he raises.

First, Matt “wonder[s] whether administrative detention is so underdeveloped, or so expansive a concept, that it doesn’t make sense to think of it as a single model at all.” I agree with Matt that the parameters of lawful administrative detention are now underdeveloped. Human rights instruments generally require detaining states: (1) to prescribe in advance the permissible bases for detention and to follow their own laws; (2) to inform the detainee of the reasons for detention; (3) to afford him the opportunity for judicial review; and (4) not to detain arbitrarily. (The framework under the European Convention on Human Rights is more restrictive; instead of prohibiting arbitrary detentions, it prohibits detentions not falling into one of the specified categories.) Based on that formulation, international actors have long accepted that security-based administrative detention is sometimes lawful, but they have failed to provide much guidance on when and under what circumstances it is.

One of my arguments, then, is that the law in this area must be developed in order for it to fill the void for a sustainable detention regime in the fight against terrorism. Even if the law is developed, however, Matt is correct that it would—and, in my view, should—leave some room for state variance. Such variance is not new to human rights law and would not negate the existence of any international legal standard. But it would suggest that a state’s compliance with the international standard be assessed in light of the precise contours of the system it implements.

For instance, I argue that the procedural requirement for judicial review should be understood to mandate prompt, fair, and meaningful review; and that meaningfulness denotes at least three things. First, the reviewing body must have the authority to order the detainee’s release if it determines that detention is unauthorized. Second, the detainee must be equipped to participate in that process and to pursue his rights within it. (That almost certainly requires legal counsel or some other form of independent representation.) Third, the detainee must be informed of the factual basis for detention and be given a genuine opportunity to respond. Even if the international standard on judicial review is developed along those lines, however, states would have some discretion on how best to implement it within their domestic legal systems. In other words, the standard would continue to permit some variance, and whether a particular detention scheme satisfies the standard would be assessed on the facts. Yet, in my view, that variance would not by itself demonstrate a lack of cohesion in the concept of administrative detention.

Second, Matt implores us to focus on the substantive standard for detention. I couldn’t agree more. The standard of non-arbitrariness has been interpreted (outside the security context) to prohibit detentions unless reasonably necessary to satisfy a legitimate government interest. That standard is meaningless in the security context. All governments have a legitimate interest in protecting against serious threats to national security, and the determination that a threat renders detention necessary generally cannot be reviewed by international bodies. I suggest in my piece that security-based detention should be lawful (i.e., not arbitrary) only where the detainee himself poses a serious security threat, where detention is necessary to contain that threat, and where detention is calibrated to last no longer than necessary. Moreover, I argue that the security interests that may justify detention (e.g., disrupting ongoing terrorist activity or developing a more considered criminal case) give way, over time, to the liberty interests against detention. I thus suggest containing the duration of detention by requiring states to satisfy increasingly stringent evidentiary standards if they seek to hold suspects beyond incrementally set periods. After a certain period, all or almost all detainees should be released, deported, or criminally prosecuted. I underscore, however, that I intend for those suggestions only to begin the conversation. I very much appreciate recent efforts—including by Matt—to address in greater depth the appropriate substantive standard for detention.

Finally, Matt asks the difficult policy question of whether states should implement systems of administrative detention. I myself am torn on that question. Nevertheless, I do think it must be answered cognizant of the alternatives. What are the alternatives to a better regulated system of administrative detention? One may be expanding domestic criminal law in ways that contaminate the justice system. Another may be hamstringing state officials against preventing terrorist attacks. Still other, even less palatable alternatives are apparent in state practice: Several western democracies have “dealt with” non-battlefield terrorism suspects by participating in U.S. detentions based on the law of armed conflict; deporting terrorism suspects, despite the risk of home-country mistreatment; and detaining administratively without meaningful controls. If those are the alternatives, then a regulated system of administrative detention may well make sense.

Monica Hakimi, “International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide.”

by Monica Hakimi

Thanks to Opinio Juris for hosting this symposium. I read the blog regularly so know to expect a lively and interesting discussion.

 

My article addresses the international legal rules for detaining “non-battlefield terrorism suspects”—i.e., suspected terrorists not captured on a conventional battlefield or in the theater of combat. Despite the extensive literature on the rules that govern the “war on terror,” and on the treatment of detainees in particular, there continues to be significant confusion about when, and under what conditions, a state may lawfully detain non-battlefield terrorism suspects. On those questions, two broad strands of thought have emerged. One asserts that the law of armed conflict governs to permit extended detention with minimal legal process; the other claims that human-rights law applies to prohibit detention unless accompanied by the ordinary criminal process. Neither strand tracks international practice. Rather than uniformly adopting one approach or the other—the armed conflict approach or an exclusively criminal one—international actors have been groping for new options. International practice demonstrates that states (and particularly western democracies that take seriously their human rights obligations but also face a real threat from transnational terrorism) perceive an occasional but serious need to detain non-battlefield suspects outside the criminal process. In the absence of a clear legal framework for satisfying that need, these states have resorted to a variety of ad hoc or uncontrolled measures.

 

Based on a review of that practice, I argue that the global fight against terrorism should not be characterized as an armed conflict for purposes of application of a detention regime under the law of armed conflict, but that the reflexive rejoinder—if the law of armed conflict does not apply, then the criminal law must—is mistaken. The criminal law is an important tool for detaining terrorism suspects, but human rights law also recognizes that, even in peacetime, states may detain persons who threaten their security outside the criminal process and instead through calibrated systems of administrative detention. Moreover, administrative detention may better balance the liberty and security interests at stake in the context of particular terrorism suspects. In order for administrative detention to fill the void for a sustainable detention regime, however, its parameters must be better defined. My article thus begins the project of refining the international law on administrative detention, as it applies in the fight against terrorism. The purpose of this project is twofold: to inhibit states from detaining unnecessarily or through uncontrolled and ad hoc measures; and to enable states to detain based on a lawful template that satisfies their legitimate security needs.

Competition and Control in International Adjudication: A Response

by Monica Hakimi

Jacob Cogan’s Competition and Control in International Adjudication provides a rich and thought-provoking analysis of the importance of, and options for, maintaining controls over international courts. Jacob argues that existing controls are relatively weak, and that we should encourage competition among courts to fill the gap. Competition, he asserts, will help constrain international judicial power and may lead to more desirable judicial decisions: If one court oversteps its mandate or issues unreasonable decisions, states will take their disputes elsewhere, and the overstepping or unreasonable court will be forced to adjust its practices to attract future business.

Jacob recognizes that it is too early to know for sure whether the proliferation of international courts will result in increased competition among courts, and in better, more reasoned judicial decision-making. I question to what extent it will. In order for market forces to affect judicial decision-making, international actors must have enough “market” information—i.e., information about the differences among courts, and about each court’s strengths and weaknesses—to enable them to choose among courts. Yet, as Jacob acknowledges (pages 429-430), international actors already have trouble tracking and digesting the many pronouncements and decisions of international courts. This problem would only multiply with an increase in the number of courts, and it likely would detract from the competition-enhancing effect of proliferation.

More importantly, any competition-related benefits of proliferation may be outweighed by larger, systemic costs. Specifically, the proliferation of international courts likely would result in more fragmentation and confusion in the law, and in a shift in the functions that courts perform. Different courts no doubt will interpret the same rules differently, and will thereby generate inconsistent claims on what the law is and how it should apply in future cases, in the absence of any final arbiter to resolve those questions. This has already happened to some extent in the context of direction and control responsibility. In Nicaragua v. United States, the ICJ found that, for a state to be responsible for directing or controlling the activities of a non-state actor, the state must exercise “effective control” over the relevant, wrongful acts. Then, in 1999, the ICTY suggested a shift in doctrine—to a more relaxed standard of “overall control.” In 2007, the ICJ held its ground, rejecting the ICTY standard of “overall control” and reiterating its standard of “effective control.” Under Jacob’s theory, the conversation between the ICJ and the ICTY is competition-enhancing. This might be true to the (limited) extent that the mandates of the ICJ and ICTY overlap. But in any event, the conversation results in a lack of coherence on what the law is or how it should apply in future cases.

One might respond to that concern by asserting that this is how the international legal process works. International law develops and evolves based on the myriad of conversations between different international actors. The proliferation of international courts would simply result in an increase in the number of judicial actors (as opposed to, for example, state actors) that participate in that process. But that would reflect a major shift in how international actors perceive and employ international courts. Courts perform two sorts of functions in the international legal process: (1) they resolve the particular disputes before them; and (2) they provide authoritative (even if not dispositive) statements of law for the international community as a whole. Jacob’s proposal for encouraging competition focuses on the first of these functions. Even if competition would make courts more effective in performing that function, however, it likely would undermine their efficacy in performing the second, more systemic function. An increase in the number of courts would mean that any one court would have less authority to make and clarify the law for the international community as a whole, and that judicial decisions would therefore lose their place of prominence in the international legal process. Judicial decisions would increasingly be among the cacophony of voices that together contribute to the evolution and development of law.

Jacob’s piece thus begs the question of what functions international courts should perform. I have mixed views on that question. On the one hand, I believe that the international legal process benefits when courts issue sound and authoritative pronouncements of law. Such pronouncements help make and clarify the law in an imperfect system that often suffers from fragmentation and confusion. On the other hand, the concern that Jacob addresses is a real one: Too often, international courts expand their authority or issue unsound, unreasoned decisions. Indeed, even the most authoritative courts (like the ICJ) seem to perform best when deciding cases (like maritime boundary cases) that are context-specific and that do not invite them to make new law or to resolve contested issues in existing law. In other words, international courts are better at resolving particular disputes than they are at authoritatively making and clarifying the law. Jacob’s proposal thus would focus courts on what they do best. Before we move in that direction, however, I encourage international lawyers to consider whether there are any options for control that enhance both judicial functions—that hold courts in check and improve the quality of their decisions, without undermining their authority to make and clarify the law.