A Bull in a China Shop: The War on Terror and International Law in the United States

California Western International Law Journal, Sep 2017

By Gabor Rona, Published on 01/01/08

A PDF file should load here. If you do not see its contents the file may be temporarily unavailable at the journal website or you do not have a PDF plug-in installed and enabled in your browser.

Alternatively, you can download the file locally and open with any standalone PDF reader:

https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?article=1094&context=cwilj

A Bull in a China Shop: The War on Terror and International Law in the United States

California Western International Law Journal A BULL IN A CHINA SHOP: THE WAR ON TERROR AND INTERNATIONAL LAW IN THE UNITED STATESt MOVING PART : INTERNATIONAL HUMAN RIGHTS LAW There are significant differences of opinion about the legal rights of detainees and the legal responsibilities of detaining authorities in the so-called war on terror. Some reflect reasonable differences among reasonable people; others reflect catastrophic errors of judgment and bad faith efforts to obscure the true content of applicable law. Many of these differences of opinion would dissolve if we could eliminate the kind of willful ignorance that the legendary American journalist H.L. Mencken no doubt had in mind when he observed that for every complex problem there is an answer that is clear, simple, and wrong. Detention in the context of counterterrorism is, indeed, a complex issue with many moving parts, both large and small. Before diving into the details, I would like to offer some historical background on the major issues. - 136 CALCIaFlOifoRrnNiaIAWestern InternatioInNaTlLEaRwNJoAurTnIaOl,NVoAl.L39L[2A0W08],JNOoU.1R, NArAt.L5 WESTERN on its agenda were a Universal Declaration of Human Rights, a Convention against Genocide, and a proposal for an international criminal court. A long list of international human rights treaties followed. Regional human rights enforcement mechanisms were established in Europe, the Americas, and now, in Africa. MOVING PART 2: INTERNATIONAL HUMANITARIAN LAW A hundred years before the dawn of the Age of Rights, limits on the means and methods of warfare and rules for the treatment of armed conflict detainees began to find their way into international treaties, most famously, the various Hague Conventions and the Geneva Conventions of 1864. The law of armed conflict, also known as the law of war or international humanitarian law (IHL), is related to, but separate from, human rights law. MOVING PART 3: A SHIFT IN FOCUS OF INTERNATIONAL LAW FROM STATE-TO-STATE TO STATE-TO-INDIVIDUAL RELATIONS Human rights law and humanitarian law have common characteristics. They are both aspects of international law, a body of law that began to take shape many hundreds of years ago to bring order to international relationships, especially in war. But unlike international law, with its state-to-state underpinnings, IHL and human rights law are also designed to protect individuals, and in particular, to govern the state-to-individual relationship. MOVING PART 4: SOVEREIGNTY The idea that the world should be divided into sovereign states is not a reflection of any natural law-it just happened that way. And as long as international law was limited to the regulation of relations between states, it impinged little upon the prerogatives of state sovereignty. But once international law began to instruct states on appropriate conduct towards individuals, especially towards individuals within its own borders, the tension between sovereignty and international law began to mount. Thus, cynical observers have noted that IHL is at the vanishing point of international law and international law is at the vanishing point of law. MOVING PARTS 5, 6, AND 7: A SHIFT IN THE NATURE OF THE RELATIONSHIP AMONG LEGISLATIVE, EXECUTIVE, AND JUDICIAL POWER IN THE UNITED STATES Everyone knows about the balance of powers established among the legislative, executive, and judicial branches, reflected in Articles I, II, and III of the U.S. Constitution. The ordering of the three branches (legislative, executive, and judicial) was not random. The founders planted the sovereign power of the legislature to make law in the first Article.2 Today, casual observers may assume that the importance and power of the legislative and executive branches are reversed, because for the last quarter century, and especially during the Bush Administration, the executive has been increasingly elbowing its way into the territory of an increasingly pliant Congress. 3 The same executive, despite its lip service to Tenth Amendment visions of federalism (the reservation to the several states of the powers not ceded to the federal government), has also had remarkable success in populating the third branch, the federal courts, with judges who are enthusiastic foot soldiers in the "executive power" militia. Human rights law, humanitarian law, the increasing focus of international law on state-to-individual relations, the pressures this places on traditional notions of state sovereignty, and finally, the shifting nature of the relationship among legislative, executive, and judicial power in the United States provide context to the violations of international law committed by the United States in the war on terror. These violations take three forms: treatment of detainees, right to challenge detention, and trial of detainees. The war on terror has given us the ultimate brush-off of international law, most notoriously in the so-called torture memos. You may recall th (...truncated)


This is a preview of a remote PDF: https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?article=1094&context=cwilj

Gabor Rona. A Bull in a China Shop: The War on Terror and International Law in the United States, California Western International Law Journal, 2017, pp. 5, Volume 39, Issue 1,