In a recent article in Harper’s Magazine, Luke Mitchell observes that we are still using torture at Guantanamo Bay. Contrary to the notion that Obama’s ascendancy to the White House marked an end to torture, the U.S. government still allows – and even mandates – certain kinds of torture in Gitmo. These practices include prolonged isolation, sleep and sensory deprivation, and even force feeding. According to Mitchell, right now at least thirty men are being force fed at Guantanamo.

Force feeding is a ghastly act, an act designed not to preserve life but rather to break the human spirit. In many instances feeding tubes are inserted through the nostrils to facilitate delivering “nutrients.” Binyam Mohamed, a British resident recently released from Guantanamo, claims that he has seen detainees beaten into submission by SWAT teams if they refuse to eat the food provided to them. Ahmed Ghapour, an attorney with the human rights group Reprieve, claims that detainees at Guantanamo have at times been forced to eat food laced with laxatives. Artificially amplify the speed with which the human body “processes” food, and voila, the aggregate amount of pain imposed by force feeding is increased. A lovely way to apply Machiavellian teachings to the war on terror, wouldn’t you say?

Mitchell offers a helpful prism through which to refract these facts: While Obama and the Democrats have publicly condemned a “lawless” approach to torture, they have “not rejected torture itself.” But how can this be? Was it not Candidate Obama that promised us, in terms laden with no moral or linguistic ambiguity, that he would put an end to the Reign of Bush, and in doing so dispose with torture as a tool of national security?

To take force feeding as an example, the Obama administration has not publicly defended the practice; it simply refuses to stop it. However, Cynthia Smith, a spokesperson for the Pentagon’s top health official, Dr. Ward Casscells, has publicly claimed that force feeding “saves lives,” suggesting that it would be immoral to “idly watch” detainees permanently damage their own health by allowing them to refuse food. This is a spurious argument. It assumes that detainees are legitimately the charge of the U.S. government, and on the basis of that assumption infers that the U.S. owes these folks certain moral duties. This assumption, of course, is non-sense on stilts from the perspective of a detainee. To someone detained at Guantanamo, the U.S. authorities are adversaries, not caretakers, and the severe restrictions – of mobility, speech and association – imposed on detainees suggest that there is no moral relationship between the U.S. government and Gitmo detainees. The relationship is a purely utilitarian one, in that everything that the U.S. does for and to the detainees is designed to obtain its own objectives. The U.S. acts for itself, not out of any fealty to morality as such.

Force feeding is indeed a ghoulish act, one that conjures (or should) images of third-world dictators putting the fear of God into recalcitrant dissidents through common thuggery. But insofar as force feeding is just one part of a larger suite of torture practices that the U.S government is prepared to endorse and use in the future, we must ask a crucial question: As a psychological matter, what explains the willingness of Americans to accept the insipid view that Obama is entitled to “mull over” what forms of torture will be retained at Gitmo?

Mitchell does not really raise this question directly, but his article does nevertheless suggest an answer. On his view, the Obama administration is only interested in using forms of torture that can be, slowly and over time, justified to the American people and perhaps to the world community. Force feeding is “torture light,” that is, a form of coercion that we can live with, despite the fact that none of us would voluntarily endure it ourselves. It may not be pleasant, but it does not necessarily destroy the human body and does – oh, dear friends this is hard to say with a straight face – “save lives.” On Mitchell’s account, this species of self-deception is precisely why our national conversation about torture in the post-Bush era has placed us in a perpetual state of moral vertigo: We do not like torture, but we are not sure enough that what is happening in Guantanamo Bay really is torture, and so, we are unprepared to demand that Obama close the damn place down.

One cannot deny the explanatory power of Mitchell’s account. He’s surely right that Americans are complacent about Gitmo because we are in a state of collective self-deception. But what, pray tell, explains why we are so eager to dupe ourselves? Psychologically, why are we so spiritually and morally weak that Gitmo’s continued existence seems vaguely disagreeable rather than absolutely inconsistent with our moral and political values?

Perhaps the Bush years reduced us to helpless children, to a people collectively incapable of demanding that our government, which in theory serves our interests and executes our will, put an end to torture. And maybe Obama, a fellow lauded at home and abroad as more a deity than a flesh-and-blood politician, has played up his own world-historical character to such a degree that many of us are loathe to face the dissonance between the man and the myth. We deeply want, in other words, to believe that Obama is a noble saint, not the moral chameleon he so often appears to be these days.

But neither American political life during the Bush years nor our desire to see Obama as a knight in shining armor can absolve us of the conspiracy of moral lethargy that threatens the republic. We can blame no third party or external circumstance for becoming a people too complacent, too busy with our own lives, to demand that our government stop acting like barbarians. It may be that we need special detainment policies for individuals we have verified as terrorists, and it is even possible that we need special places to house these dangerous foes. But it is impossible for the United States to retain its identity as a constitutional republic, a polity inhabited by free and equal people, if we allow torture to continue in Guantanamo Bay. We know this. And now we must choose who we want to be.

No related posts.

This month, President Obama announced that his administration would be retaining and reforming, rather than abolishing altogether, the heavily criticized military commissions implemented by the Bush administration. His reforms outline a number of changes to the commissions’ procedural rules, primarily designed to afford greater protection to detainees and to thereby “restore the Commissions as a legitimate forum for prosecution, while bringing them in line with the rule of law.” Needless to say, Obama’s decision to maintain the military commissions has bitterly disappointed human rights and civil liberties advocates, who had hoped that his promise to close Guantanamo Bay would also signal the end of the politically and legally controversial commissions. In criticizing the Obama’s decision, such advocates have raised two key questions about the retention of the military commissions. First, will the proposed changes in fact restore the legitimacy of the commissions, or do they not go far enough? Second, is the underlying raison d’être of the tribunals—the idea that the detainees in question are too dangerous to release, but too difficult to prosecute in the federal courts—still valid?

The official White House press release indicates that five proposed changes are part of the plan to revamp the military commissions. They include:

1. Statements that have been obtained from detainees through the use of cruel, inhumane and degrading interrogation methods will no longer be admissible as evidence at trial.
2. The use of hearsay – i.e., second-hand accounts of events or perceptions – will be limited so that the burden will no longer be on the party who objects to hearsay to disprove its reliability.
3. The accused will have greater latitude in selecting their counsel.
4. Basic protections will be provided for those who refuse to testify.
5. Military commission judges may establish the jurisdiction of their own courts.

Before we consider the question of whether military commissions are necessary in general, these five proposed changes deserve a sunlight. The first change seems to signal a renewed commitment to the idea that torture is never justified. One problem, of course, is that procedures like these may not provide an effective disincentive for using torture in the first place. Presumably, employing harsh interrogation methods serves a number of purposes, only one of which is to furnish evidence to be used in prosecution. Although the proposed change may discourage the use of certain investigative techniques by providing a limitation on how the fruits of those techniques may be used, it may not be enough of a disincentive where the CIA decides that the immediate intelligence-gathering benefits of using dubious interrogation methods outweighs the disadvantage of not being able to use the relevant evidence at a later date. A further problem is that without particulars on what the White House regards as “cruel, inhumane and degrading” methods of interrogation, we do not know enough about what kinds of compromised evidence will be excluded before these tribunals. And until we know more, there is no cause for celebration.

What about the second change, the “new” policy with respect to the hearsay rule? This policy appears to require a prosecutor who seeks to introduce hearsay evidence to establish its reliability, thus shifting an important burden to the government. Is this a significant change in current practice? Well, that depends on what you take to be current accepted practice. It is true that hearsay is often admitted before the International Criminal Court (ICC) where the original evidence source either will not or cannot be called to testify. A liberal attitude, one might say, has been adopted by the ICC with respect to the admissibility of hearsay evidence. There may be extenuating circumstances in such cases (i.e., the lack of living witnesses), but the normative point remains: If it is fair to allow hearsay evidence before the ICC, then it may be fair, at least in some circumstances, to allow a range of hearsay to be admitted in U.S. military commissions. In any event, if Obama’s plan makes it harder to admit evidence against suspected terrorists, it would be at variance with an important trend in international criminal law. In practice, it’s likely that prosecutors will be afforded wide latitude to demonstrate the reliability of hearsay evidence. They will probably be able to rely on the necessity exception or some new, narrowly-tailored doctrine. At the end of the day, whatever the legal stratagems are, one would expect most of the evidence that currently gets in despite the hearsay rule to be admitted.

As for the third change, again, we do not know what “greater latitude” means. If, for example, the government gets to determine at the outset which lawyers a suspected terrorist can choose from, greater latitude will mean very little. For being able to choose even from an infinite number of mediocre or overburdened defense attorneys provides very little in the way of true procedural fairness to suspected terrorists. Something very similar can be said of the fourth proposed change. As stated, it is just too vague to know whether trials conducted in accordance with it will be fair.

The fifth and final change will raise the eyebrows of seasoned and green litigators alike. Allowing a military commission to determine its own jurisdiction is a frightening idea. For one, this makes little sense given the separation of powers embedded in the American Constitution. The legislative branch is charged with making the law and structuring the courts, while the executive is responsible for enforcing the law. Given the complexity of the issues involved in fairly prosecuting enemy combatants, the executive and legislative branches should determine what kinds of cases the military commissions should hear. And when this determination is made, there must be clear boundaries between terrorism cases (for which these commissions are designed) and criminal matters (which the federal and state judicial systems can handle). Yet the larger, more pressing problem is a pragmatic one. If these tribunals get to determine the scope of their own jurisdiction, there will be a veritable avalanche of disputes between ordinary criminal courts and these military commissions. It will be an endless fight to determine which court has the authority to sit in a judgment of an accused terrorist. Moreover, this open-ended, aspirational proposal is particularly ironic in light of the tidal wave of litigation before the Supreme Court in the last few years which, broadly speaking, has concerned whether specialist courts and tribunals must comply with ordinary constitutional protections and procedural requirements. Announcing that military commissions may decide the reach of their own jurisdiction is hardly a solution to this problem. Indeed, it’s quite likely to exacerbate it.

Turning to the question of the need for specialized military commissions at all (whatever their nature), it’s clear that the government is yet to provide enough evidence that the existing criminal justice system is inadequate in terms of the prosecution of terrorism suspects. Prosecuting detainees in the federal courts would certainly be less convenient and less successful from the government’s perspective, but that’s a different matter from genuine inadequacy. Indeed, the Obama administration has acknowledged that some of the Guantanamo detainees will be prosecuted in the federal courts, demonstrating that the federal courts are not inherently incapable of trying terrorism suspects. It is so far unclear how many and which detainees will be prosecuted in the federal courts, as opposed to the military commissions. However, it seems that there will be no restraints on the government’s ability to pick and choose between the two justice systems, perhaps using the military commissions as a fallback avenue where the relevant evidence is not up to scratch according to federal court standards. The injustice of such a two-tier legal system, with prosecutors free to choose the system that is more likely to result in a win for them, needs no further explanation.

When government officials have referred to Guantanamo detainees as being “too difficult” to prosecute in federal courts, they have generally meant one of two things. First, the government would be unlikely to obtain a successful prosecution in the case of many detainees because the evidence essential to such a prosecution would simply not be admissible in a federal court. There are a number of problems here, the most obvious being that this argument begs the question. The government is presuming that the terrorist suspects in question should be found guilty, and are crafting rules of evidence and procedure around this desired outcome, rather than allowing the rules to dictate the outcome. Another problem is that a successful prosecution, and therefore less stringent rules of evidence, are seen as necessary in the case of many detainees, simply because the government has found them to be too dangerous to release. The bastardization of the rules of evidence is therefore a roundabout way of maintaining the detention of terrorist suspects, which is of course not the original purpose of the rules of evidence. Such rules were designed to ensure the fairness of convictions and disincentives for the use of unlawful interrogation techniques, not to provide a negligible stepping stone in transferring terrorist suspects from one form of detention to another.

The second reason for the government’s antipathy towards the federal courts is the belief that the federal courts are unable to adequately deal with classified information and national security requirements, and that prosecutions in the federal courts would necessarily involve compromising intelligence sources and methods. However, as Jameel Jaffer and Ben Wizner point out, federal criminal prosecutions have their own methods of dealing with classified information and such methods have been sufficient to deal with the hundreds of terrorism cases that have come before the federal courts over the last decade. As an alternative to the federal criminal justice system, courts martial are also fully capable of hearing cases involving terrorism suspects without prejudicing national security, with similar procedures for managing classified information (as acknowledged by Justice Kennedy in the Hamdan case). In light of this, intelligence and national security concerns alone cannot justify the creation of an entirely new system of justice for the Guantanamo detainees.

So, to return to the two questions posed at the beginning of this piece, it is unlikely that Obama’s proposed “lite” version of the military commissions will in fact restore the degree of legitimacy needed to convert the commissions into justifiable forums of prosecution. Many of the proposed changes are either unclear, or will have little (and possibly detrimental) effects in practice. And from a broader vantage point, the underlying raison d’être of the commissions still seems untenable, given that there is no strong reason why the prosecutions cannot be dealt with by the federal criminal justice system and/or courts martial. In light of this, the call to abolish the commissions altogether looks more and more like a sensible and evenhanded approach, and should be reconsidered by the Obama administration.

No related posts.

The question then arises: if we can’t go after the CIA, can we go after the legal advisers who crafted the memos in the first place?  Precedents certainly exist for the prosecution of lawyers who negligently or purposefully authorise serious violations of international law.  As Kevin Jon Heller points out, these include the successful prosecution of the Nazi government’s key legal advisers, for failing to alert the government to the illegality of forced deportations of Jewish people to concentration camps during the Second World War.  (If Nazi Germany seems inappropriate as a point of reference, just keep in mind that the issue is not whether the U.S. Government in the wake of September 11th is to be viewed as morally equivalent of the Nazi regime.  Of course it isn’t.  The issue is whether legal advisers can be prosecuted for knowingly and deliberately violating international law.)  And there is certainty no lack of public sentiment baying for the blood of the relevant Bush-era lawyers, including Steven Bradbury, Jay Bybee and John Yoo.  Indeed, both Bybee and Yoo (along with David Addington and others) are currently the subject of a criminal prosecution in Spain for authorizing torture and other war crimes carried out at Guantanamo Bay.

Assuming that we can prosecute the lawyers, the question remains whether, as a matter of policy, we should.  There are, of course, convincing moral arguments in favour of punishing those who came up with the shifty legal apparatus and euphemisms that allowed such “interrogation techniques” to be seen as permissible.  However, our main concern here is whether prosecuting the OLC would serve a meaningful regulatory purpose, even where convictions are unlikely.

It is possible that punishing the architects of the torture program would bear little fruit.  Waterboarding, for instance, is sometimes used to train U.S. military personnel, so it might be difficult to impose criminal penalties of any kind the OLC lawyers, men who will undoubtedly contend that they were acting in good faith to protect their beloved country.  Moreover, because Bybee, Yoo, Addington, and the rest of the gang are no longer at the OLC, criminal prosecutions are unlikely to directly have a positive impact on terrorism policy going forward.  One would expect the indirect effects, however, to be quite positive.  The trustworthiness and moral standing of the U.S. would certainly improve, leading its friends around the world to more readily share information and resources with it in the fight against terrorism.  But despite these advantages, some – including our Commander in Chief – maintain that looking forward is the best use of our energies and resources.

Notwithstanding the high costs of digging up the past, the need to go after these lawyers is compelling.  We know that the memos were not written in good faith.  In particular, we know three circumstantial facts that point toward bad faith and a lack of independent legal assessment, the hallmark of negligent lawyering.  First, the torture memos were written by the OLC in response to the CIA’s request for an evaluation of well-defined aggressive, coercive interrogation techniques.  Second, the memos not only endorsed the CIA’s proposed techniques, they did so by offering a very gruesome factual justification:  the techniques on offer did not impose “severe suffering” of the type prohibited by the U.S. anti-torture law because those techniques never caused actual organ failure.  Oh, I see.  No organ failure, thus no severe suffering, and hence no violation of domestic law.  Read that last sentence again.  And third, the torture memos make a big deal out of the fact that medical personnel would be present during interrogations.  Why does the presence of doctors matter?  Well, it’s only unlawful to impose severe suffering intentionally.  The CIA assumed, and the OLC endorsed in the torture memos, the view that having doctors hanging around during interrogations somehow undermines any implication that pain was deliberately inflicted by the CIA.  (This is a puzzling argument if you reflect on it just a bit.  Doesn’t my decision to have a doctor around reinforce – not undermine – the inference that I intended all along to impose severe physical pain on a detainee?  After all, the presence of a licensed physician assumes that physical pain will be forthcoming, and that the condition causing the pain, which I have intentionally visited upon the detainee, may require treatment to prevent him from expiring.  How dumb are these guys?)

At the end of the day, the CIA told the OLC what they wanted to do, and the OLC constructed a legal justification tailor made for the task.  This does not sound like fair and dispassionate lawyering, does it?  Indeed, it seems more like the kind of thing that happens in banana republics, where public servants and legal officials routinely ignore the law (if there is any law), which they regard as a nettlesome impediment, so that they can undertake whatever morally bankrupt and legally dubious tasks they’ve been assigned by their “superiors.”  In such regimes, fidelity to power comes before a commitment to morality and law.

If the U.S. wants to retain its identity as a constitutional democracy, then yes, we should prosecute Bybee and the boys.  Doing so would serve an important symbolic purpose, (1) demonstrating the Obama administration’s genuine (as opposed to merely rhetorical) commitment to international law and (2) signalling a clean break with the legally dubious and enormously unpopular legacy of the Bush administration’s war on terror.  Indicting these folks would also serve as a sharp and well-timed reminder to lawyers in positions of power that their misdeeds in such matters may be met with serious legal consequences, in addition to any moral and political fallout.  In particular, for government lawyers, the indictment of the OLC lawyers should underscore the fundamental distinction between the roles of legal adviser and policy-maker, and provide a stiff warning to those all too keen to wish the law away when it chafes against the government’s dark designs.

Make no mistake, prosecuting the OLC lawyers would be costly, cumbersome, and painful.  But if chaps like Bybee and Yoo go without rebuke, there will be one less distinguishing feature setting the United States apart from the banana republics and petty dictatorships it’s so fond of heckling.

No related posts.

To his credit, Chertoff’s proposed solution is not to abandon international law.  Rather, he insists that the international legal order must promote and embody a new core principle, what we will call conditional sovereignty.  Conditional sovereignty involves two related ideas:  (1) individual states must recognize that each and every nation has the right to regulate its own internal political and security affairs; and (2) where a nation fails to regulate its own internal political and security affairs, other nations have a right to intervene to prevent any resulting security threats from “spreading and interfering with other states’ sovereign right to exclusive authority over their territories.” This sounds a lot like the Bush doctrine, the notion that the U.S. has a right, indeed a duty to its own citizens, to engage in preventive warfare against countries that harbor terrorists or fail to do enough to thwart terrorist activities.

The fact that Chertoff’s proposal sounds like the Bush Doctrine is not necessarily a reason to automatically reject it.  But conditional sovereignty faces a glaring problem:  Who gets to decide whether a state has been so remiss in addressing its own internal affairs that its sovereignty can be breached by another state that feels threatened, and if a state acts prematurely in attacking a state that has, in fact, not been remiss in addressing its own internal affairs, what forms of redress are available to the victim state?

Chertoff’s piece also fails to explicitly acknowledge that conditional sovereignty would essentially introduce a new category of intervention into international relations, one that has not been recognized by the primary treaty regulating the use of international force – the UN Charter.  Currently, the Charter seeks to prevent the unnecessary or overzealous use of force through limiting the use of force to situations of self-defense or to situations sanctioned by the Security Council, in the form of a Chapter VII resolution.  Of course, the Charter has its own demons and inadequacies to deal with, and Chertoff rightly highlights its inability to deal with stateless and transnational organizations as a significant obstacle in the war on terror.  However, is the best solution really to introduce a fundamentally new type of legitimate intervention, one that will undoubtedly be subject to difficult line-drawing exercises and to trading accusations of political agendas?

Chertoff, of course, is deeply and unabashedly suspicious of international law.  He thinks that it’s created by idealists and Ivy-tower thumb twiddlers who don’t understand a darn thing about the tricky challenges that Western industrialized countries face in effectively responding to terrorism.  Maybe Chertoff is right about some of those idealists and thumb twiddlers.  But what Chertoff fails to understand is that embracing a doctrine of conditional sovereignty that allows states to decide for themselves – without consulting the international community – would be to encourage precisely what civilized nations should be working together to prevent, namely unjustified military carnage.

To see why this is so, consider an example that Chertoff himself uses to advocate his version of conditional sovereignty.  Under the nuisance doctrine, domestic property law allows a homeowner to take legal action against a neighbor who fails to stop activity on his or her property that substantially infringes the rights of that homeowner.  The normative principle at work here is simple:  you must pay for what spills over into your neighbor’s property.  Chertoff argues that this norm supports conditional sovereignty, after all, why shouldn’t states have to “pay” for what they allow to happen within their own borders?  The critical flaw in this argument is that a neutral third party already exists to adjudicate nuisance disputes (i.e., domestic courts), but no such body would exist under Chertoff’s scheme to determine whether the doctrine of conditional sovereignty allows a state to take invasive steps to thwart terrorist activity taking place within the borders of one of its neighbors.  Chertoff’s conditional sovereignty would be akin to a domestic properly law regime that allowed an individual to eliminate a neighbor’s alleged nuisance without going through a neutral arbitrator or court.

International law has many purposes.  One overriding purpose is to provide a strong incentive to comply with reasonable legal rules when compliance is inconvenient, costly, or politically unpopular.  This principle applies with particular force to nations who reasonably and rationally want to protect their citizens from terrorism.  And Iraq illustrates why this principle is so important.  Bush thought that preventive war would be a good way to thwart further terrorist attacks, but invading Iraq has neither confined an existing security threat to its nation of origin nor protected the entire Western world from Al Qaeda’s malevolent designs. If nothing else, Iraq shows that the United States, a nation with unparalleled military capabilities, was not necessarily the best judge of how to promote its own national security interests.  From Iraq we’ve learned – hopefully – that there is a strong, almost irresistible temptation to deal with a national security threat rashly and poorly when a state feels empowered to act unilaterally.  And so, Chertoff’s proposed version of conditional sovereignty is simply not a viable solution to terrorism because it is a doctrine that encourages nations to be belligerent when they ought to be reflective, to be careless when care is the only way to move forward.  Chertoff gives the clearest, most cogent justification for the Bush Doctrine we’ve ever seen.  But that doesn’t change the fact that he’s dead wrong about the shape international law must take if the West is to survive terrorism.

No related posts.

The U.S. Government has submitted its opposition brief in the Al-Marri case, and the central message is clear:

• The President has the constitutional authority to decide whether an individual should be detained as an enemy combatant and detained indefinitely or charged with a crime and afforded ordinary due process protections.
• Where the President decides that an individual should be classified as an enemy combatant, that judgment cannot be modified or nullified by a court.

The Government’s argument is grounded in an impressive array of legal materials, including landmark Supreme Court Cases (including Milligan and Quirin), the Authorization to Use Military Force (AUMF) and the Patriot Act. Moreover, the Government’s message is buttressed by very appealing vision of the President’s responsibility to his constituents: He must, to whatever extent he can, short-circuit terrorist plans before they’re carried out.

It is easy to rashly dismiss each of the Government’s contentions, especially when they’re assessed individually. As the Government admits, Milligan is really irrelevant, and Quirin is hardly an unimpeachable authority because the enemy combatants in that case were officially affiliated with the Nazi regime. And while the AUMF uses broad and general language (the President must do all that is “necessary and appropriate . . . to protect the United States citizens both at home and abroad”), it nowhere says that the military force the executive branch is entitled to use includes an unfettered power to detain that is beyond judicial review. (The Government argues that the AUMF must be read to authorize any and all detention practices that the President believes would “prevent another September 11.” Here the Government has confused the purpose of the AUMF – which is surely to give the President power to combat terrorism – and the content and scope of the power given under the statute. Suffice it to say that a statute’s purpose should never be used to unlawfully expand the actual power it grants to the legislative or executive branch.) Finally, the responsibility to protect citizens from terrorists should not be interpreted in a way that leads to the endorsement of presidential powers that exceed what is granted in the Constitution.

But if one steps back, and really reflects seriously on the nature of the battlefield (which has no borders or boundaries) and the character of the combatants (who wear no uniforms but are united by an unforgiving religious ideology), the President is in an unenviable position indeed. He must fight a vicious, elusive enemy, a foe deeply committed to what all rational peoples rightly regard as senseless carnage. In doing so, the President must decide how to best U.S. citizens from prospective terrorist attacks without unduly infringing their civil liberties, and whether defendants like Al-Marri should be prosecuted through the criminal justice system or treated as enemy combatants seized in a theater of war bereft of borders. As Orin Kerr of the George Washington Law School provocatively asks, what good normative reason might the President have to classify Al-Qaeda agents as “criminals” when they themselves conceptualize their duties in waging jihad as those of soldiers fighting in a legitimate military struggle against the United States and have in the past been successful in causing significant civilian casualties on nations all over the globe? And what, then, should the President of the United States do when a fellow, with clear financial ties to Al Qaeda and a laptop containing a recipe for hydrogen cyanide, is apprehended within the continental United States?

The President’s position isn’t as crazy as some would have you believe. But the view articulated in the Government’s opposition brief does leave one critical issue unaddressed: We care about indefinite detention not because we want to see terrorists roam free, but rather because detention at some point invariably becomes punitive. Ok, so why does that matter? Don’t terrorists deserve to be punished? Well, yes, if and only if they’re actually terrorists. And therein lies the rub: We want to allow the executive branch to do whatever it takes to stave off terrorist attacks, but we don’t want to capriciously dole out punishment against innocents. The unsettling prospect of punitive detention without charge, which treats a detainee as if he were guilty of something, may therefore be our most intuitive reason for believing that the Presidential authority to designate a person as an enemy combatant cannot be completely unfettered. Or, to put the point another way, we may want to recognize that the President possesses the unqualified power to detain enemy combatants but we are compelled – as a people deeply committed to punishing only the guilty – to place limits on the executive branch’s ability to deploy this otherwise unqualified power.

A graduate of the University of Melbourne Law School, Edwina Chin is an Articled Clerk for a large Australian law firm. Edwina has an interest in international human rights law in general, and has focused her academic
research on the relationship between anti-terrorism legislation and executive powers. In addition to serving on the Melbourne Journal of International Law, in 2007 Edwina received the Alan Missen Foundation Essay Prize for the best essay on Civil Liberties in Australia.

No related posts.

Although the Prosecutor’s action has been (somewhat prematurely) heralded as a triumph for human rights and accountability for crimes against humanity, other responses to Al-Bashir’s potential indictment (including notably those from within Sudan itself) have taken a more wary approach, demonstrating that the prosecution of a head of state will always be fraught with political and practical difficulties and will demand more than a simple consideration of legal capacity to prosecute.

The Rome Statute of the International Criminal Court states in no uncertain terms that official capacity, including as a head of state or government, does not exempt a person from criminal responsibility before the Court or constitute a ground for reduction of sentence. In doing so, the Statute chafes against the grain of international law, which has traditionally accorded heads of state virtually unqualified immunity from prosecution.

Although the legal position regarding the prosecution of Al-Bashir as a head of state is clear, and an intuitive response is to see the prosecution as laudable from the point of view of human rights, the request for a warrant of arrest for Al-Bashir has been met with serious and considered debate as to whether the Prosecutor should, as a practical and political matter, have sought to indict Al-Bashir. At the forefront of critics’ concerns is the fear that the prosecution of Al-Bashir will lead to greater political instability, with the people of Sudan ultimately bearing the consequences of the Prosecutor’s decision. The spectre of retaliatory politics and resulting disorder places the global community in the unenviable position of facing a trade-off between peace and justice – a problem that has similarly plagued post-conflict rehabilitation in East Timor, Cambodia and Sierra Leone. The vastly different experiences of these countries reveals that any resolution of a post-conflict situation must be carefully tailored to the particular country’s needs, and that prosecution for international crimes must always be seen as only one of a number of options for facilitating the transition to a peaceful and stable government.

Other criticisms of Al-Bashir’s potential indictment have focused on the political, as opposed to purely legal motivations behind the Prosecutor’s decision. One commentator has seen the request for a warrant of arrest as “an attempt to intimidate Bashir into faster negotiation of a peace deal and resolution of the Darfur conflict” and as a means to force the handover of two other senior Sudanese government officials, who have already been indicted by the International Criminal Court. Others have uneasily noted that the Court has, to date, exclusively focused on African cases, representing what is seen as a worrying incursion of a fundamentally Western legal regime in the sphere of justice in Africa, with serious ramifications for African support of the Court.

There is a simple, but critically important, question that has not yet been asked about the potential indictment against Al-Bashir: Would the indictment be legally justifiable under the terms of the ICC’s charter? The government of Sudan insists it has been bending over backwards to prosecute war criminals effectively. The ICC doesn’t appear to be convinced. Since 2005 the ICC has been mulling over how to deal with Darfur, regarding with sceptical eyes the efforts of the Sudanese government to bring its own to account for their crimes. Surely some of this doubt has been well founded. One only has to consider the case of Ali Kushayb, the “colonel of colonels” who terrorized and murdered countless innocents but was released by the Sudanese authorities for “lack of evidence.”

The problem, of course, is that there is no clear standard, no juridical algorithm, to determine whether a nation like Sudan, one of limited resources beset by internal conflicts over whether and how to prosecute war crimes, is doing everything within its power to ensure that the masterminds of mass carnage are effectively prosecuted. This admission may suggest to cynics that law and politics are essentially inseparable when the ICC is called to decide whether Sudan is really doing all it can. Yet however difficult this question seems in the abstract, when one reflects on how little has actually been accomplished in Sudan over the last three years, and considers the fact that the African Union aggressively lobbies the United Nations to end ICC investigations no matter how ghoulish the atrocities at issue, indicting Al-Bashir would not only be well within the authority of the ICC, it would also be justifiable on moral and political grounds.

If the ICC is actually going to spur national leaders to prosecute war crimes and crimes against humanity, its prosecutorial power must be readily available in appropriate circumstances. While the exercise of this power will always be problematic and involve politically sensitive considerations, the ICC must not allow these concerns to distract it from its fundamental charge of securing justice, lest the Court become a toothless tiger.

A graduate of the University of Melbourne Law School, Edwina Chin is an Articled Clerk for a large Australian law firm. Edwina has an interest in international human rights law in general, and has focused her academic
research on the relationship between anti-terrorism legislation and executive powers. In addition to serving on the Melbourne Journal of International Law, in 2007 Edwina received the Alan Missen Foundation Essay Prize for the best essay on Civil Liberties in Australia.

No related posts.

There is a temptation these days to treat humanitarian intervention as a suspect category within the lexicon of international justice. This is hardly a surprise, since the Iraq war was undeniably commenced on pretextual grounds and then terribly bungled. This temptation is exacerbated by the assumption, held by many international lawyers, that humanitarian intervention is only appropriate where the U.N. Charter says so. The tendency to see humanitarian intervention solely through the prism of international law renders invisible the deeper moral principle at play, that is, a concern for the well-being and flourishing of all human beings, no matter where they happen to live.

There are a number of reasons to cast a skeptical eye upon the way the U.N. Charter regulates humanitarian intervention. To begin with, one may question whether the body charged with regulating humanitarian intervention, the U.N. Security Council, is an institution up to the task. The Security Council was established in the wake of the Second World War with the specific purpose of regulating threats to international peace and security – in other words, to minimize large scale military conflict. Under the Charter, the use of force is permissible only in self defense or where the Council authorizes the use of force as a collective response to the use or the threat of force. Genocide or state-sponsored violence appear nowhere as acceptable grounds for intervention in the affairs of another country. It is no surprise, then, that the structure and decision-making powers of the Council provide a relatively blunt and ill-adapted instrument with which to address the complex, and fundamentally moral, question of humanitarian intervention. Further, although the precondition of a Security Council resolution may give the impression of international consensus and adherence to the principles of international law, the essentially undemocratic nature of the Security Council (in particular, the veto power of the Permanent Five members) and the often unspoken political motivations behind the voting patterns of Member States frequently render this impression a mere illusion.

The aforementioned flaws in the functioning of the Security Council, are, of course, just empirical limitations of the current international security regime. One might imagine a more well-ordered regime – one that is more responsive to the needs of all human communities (not just those that happen to be of interest to the industrial world) – and thereby erase these limitations away. One way in which the Security Council might increase its democratic legitimacy is to expand the number of Member States involved in the decision-making process, thereby ensuring that the views of a wider cross-section of the international community are represented and that any humanitarian intervention undertaken as a result of the process is a more accurate expression of the collective international will. (While some balk at the notion that a larger Security Council could work, few would challenge the basic premise that the Council, in its current guise, has failed to really keep its finger on the pulse of popular sentiment, especially justifiable feelings of moral outrage at the various genocides and state-sponsored atrocities currently underway across the globe.) However, addressing the criticism that Member States will act in their own political interests as opposed to humanitarian interests is a considerably more challenging task – one which may require greater transparency and public debate in the development of Security Council decisions.

What that public debate might look like, and how public sentiment might be better gauged and weighed, are difficult issues best left for another day. Yet even if the Security Council were more firmly oriented towards humanitarian concerns, and less embroiled in the pull and haul of ordinary politics, it is unlikely our shared moral values will consistently be captured by its resolutions. After all, it’s an international body with a mandate which assumes the fundamental legitimacy of national borders when evaluating whether or not humanitarian intervention is necessary. But this assumption about the value of borders is not universally shared. For example, the international community instinctively reacted with horror to the Rwandan genocide, indicating that many see the preservation of human life as the fundamental metric against which we assess Security Council decisions. The normative justification for humanitarian intervention is, therefore, independent of any action of the Security Council, bringing into sharp relief the fallacy of the notion that Security Council resolutions are somehow self-justifying.

We would be remiss if we didn’t note that the 2005 World Summit introduced a new way of thinking about humanitarian intervention, an approach that would allow the Security Council to play a more proactive role in combating genocide and state-sponsored carnage. At the Summit, world leaders introduced the Responsibility to Protect (R2P), a doctrine which essentially says that Member States have a responsibility to intervene – breaching borders if necessary – to protect people from genocide, war crimes, ethnic cleansing, and crimes against humanity whenever states fail to do so. The U.N. Secretary-General, Ban Ki-moon has pledged to take steps to “operationalize” R2P by the end of 2008. Although it is unclear precisely what operationalizing R2P would involve, the key to R2P is its undeniable grounding in uncontroversial, widely-accepted international law: Since states have a responsibility to protect their own populations from genocide, war crimes, and the like, a failure on their part to fulfill this obligation represents a breach of international law that calls out for some form of redress.

Does R2P represent a sea change in the way the Security Council handles humanitarian crises? Perhaps. It cannot be gainsaid that the advent of R2P is a result of the public outcry over Rwanda and Kosovo, which surely implies that moral sentiments have a direct and measurable impact on the development of the suite of policy tools available to the U.N. Security Council. R2P is, thus, certainly a step in the right direction. Nevertheless, the relatively late appearance of R2P on the official agenda of Council reinforces, rather than undermines, the claim that international institutions, no matter how well-intentioned, must ultimately answer to our considered moral judgments about what justice requires. (And, for those who are familiar with the 2005 Summit, it is worth remembering that there was fierce debate about whether the qualification-laded conception of R2P ultimately adopted really goes as far as it should to protect victims of genocide and other crimes against humanity. Critics have been even more scathing in their assessment of the real-world impact of this nifty new doctrine, calling it “a doctrine real only on paper.”)

What then are our shared moral values, when it comes to humanitarian intervention? At the root of the concept of humanitarian intervention is the idea that state boundaries do not carry significant moral weight, an argument employed convincingly by Peter Singer in advocating for a substantial increase in private donations by citizens of wealthier, industrialised nations to their poorer brothers and sisters in the third world. To truly abide by the Kantian notion that human life has no price, and that the value of a human being’s life can never be determined by race, nation or geographical proximity, we must be prepared to challenge the Security Council (or any other international institution) whenever human life is bartered away for the sake of borders.

A graduate of the University of Melbourne Law School, Edwina Chin is an Articled Clerk for a large Australian law firm. Edwina has an interest in international human rights law in general, and has focused her academic
research on the relationship between anti-terrorism legislation and executive powers. In addition to serving on the Melbourne Journal of International Law, in 2007 Edwina received the Alan Missen Foundation Essay Prize for the best essay on Civil Liberties in Australia.

No related posts.