The US and International Law – A New Approach?

In the past weeks and months we have been able to witness some indications that the new US administration is adopting a new approach to international law. This was to be expected if one considers that already during the presidential campaigns in 2008 Senator Obama and Senator McCain had vastly different positions on the various topical issues of international law (see the overview assembled by the American Society of International Law on the two candidates view on international law here and here) and that Senator McCain on many topics (although not on all) was holding the same views as President Bush. It is perhaps too early to say how the new administration will eventually approach the more complex issues such as the UN Law of the Sea Convention and the International Criminal Court. But it might be interesting at this point to gather some of the more prominent indicators of a new attitude towards international law.

I. New terminology (1): Apparently there was an e-mail sent around by the US Defense Department declaring that George W. Bush’s phrase “war on terror” should be replaced by “overseas contingency operation”. And although US Office of Management and Budget spokesman Kenneth Baer was quickly in denying that there had been a “memo, or guidance”, US Secretary of State Hillary Clinton was on the record to say: “the administration has stopped using the phrase, and I think that speaks for itself. Obviously.” (See the April 13th edition of Times Magazine, 10.) Of course, for some this nuance in terminology is interpreted as a new and more considerate approach to international law; especially since the word “war” does not necessarily fit to describe the conflicts we are facing and the various countermeasures the US (and other countries) are taking to fight global terrorism. Others, however, consider the elimination of the phrase to be proof of the “Obama administration going soft on the war on terror” (admittedly a political observation and view).

II. New terminology (2): Another phrase that has characterized the past administration’s effort to deal with globally operating terrorists, and which steered quite a debate among international law scholars, was that of the “enemy combatant”. As shown by the Justice Department in a recent court-filing (we reported) the current US government has stopped using this phrase. However, it is nevertheless important to observe that one effect of this terminology is going to be maintained even by the new administration. Although the President’s authority to hold detainees, who cannot use US courts to challenge their detention, is no longer considered to be derived “from the Constitution or from some inherent commander-in-chief power” it is still existent but now derived “from statute passed by congress.“

III. Closing Guantánamo Bay: As we reported earlier President Obama soon after assuming office signed an executive order facilitating the closure of the US detention centre in Guantánamo Bay, Cuba. According to that Order, the proceedings of the Guantanamo military commission (a military commission that handled detainees with possible links to al-Qaeda) was to be suspended for 120 days and the detention facility would be shut down within the year. The Centre had been under heavy criticism during the Bush administration because the detainees that were kept there, due to their status as enemy combatants (see above), were not entitled to any of the protections of the Geneva Conventions. This was changed after the US Supreme Court ruled in Hamdan v. Rumsfeld on June 29, 2006 that the detainees were entitled to the minimal protections under Common Article 3 of the Geneva Conventions. Following this, on July 7, 2006, the Department of Defense issued an internal memo stating that prisoners would in the future be entitled to protection under Common Article 3. It should be noted that the Order leaves open the question of how to proceed with the detainees that still are being kept in Guantánamo Bay. It is fully possible that they are being sent to other camps on territory outside the US, which would leave the problem of the lack of civil rights of the detainees virtually unsolved. On the other hand, closing the camp is sending a strong signal which should not be underestimated considering that the camp over the past couple of years has evolved into one of the symbols of the Bush administrations much criticized fight against terrorism.

IV. CIA to close secret prisons for terror suspects: One of the latest indicators is the announcement of the CIA that “it will no longer use contractors to conduct interrogations, and that it is decommissioning the secret overseas sites where for years it held high-level Al Qaeda prisoners.” These secret prisons were another object of fierce criticism during the previous administration. Not only because they existed in the first place (although it was widely thought that these prisons’ existence was justified by the need to create areas outside any legal jurisdiction), but more specifically because of the methods of interrogation that were (thought to be) used at these prisons. However, the announcement makes it equally clear, that CIA officers who were involved in interrogations using “enhanced” methods authorized by the Justice Department during the Bush administration “should not be investigated, let alone punished.”

V. US to run for UN Human Rights Council: As we reported earlier, the new administration has announced that it will be running for a seat on the UN Human Rights Council. This is a major step towards actively seeking to influence the UN’s promotion of human rights from within the (admittedly imperfect and unfortunately ineffective) existing organizational structure. Secretary of State Hillary Clinton announced that the US believes “every nation must live by and help shape global rules that ensure people enjoy the right to live freely and participate fully in their societies.” This approach certainly differs from the Bush administration’s, which was one of disengagement with the Human Rights Council (and which even went so far as last year’s decision to withhold the US’s share of the body’s budget). 

VI. The new State Department Legal Advisor: As many of our readers might have heard already, the Obama administration nominated Yale Law School Dean Harold Hongju Koh as the new legal advisor in the State Department. Koh served as Assistant Secretary of State for Democracy, Human Rights and Labor under Secretary of State Madeleine Albright from 1998 to 2001 and he has been a delegate inter alia to the United Nations Human Rights Commission. Ever since his nomination Koh has been under heavy criticism from conservatives; in part due to individual remarks he supposedly made (e.g. the dispute over alleged comments in favor of the use of Shariah law in U.S. courts), in part due to his general stance on the US’s approach to international law. The latter, by many now often subsumed under the word “transnationlism”, has caused some concern among politicians and even scholars as they fear that Koh, as a liberal, wants to move American law to the left (see Eric Posner on Koh) by allowing international law to enter domestic law. This certainly would be a significant difference compared to the previous administration. Koh will have to be confirmed by the Senate Committee on Foreign Relations and no date has yet been set for Koh’s confirmation hearing.

VII. Waterboarding is torture: Already in his first week in office, President Obama banned coercive interrogations. Also, numerous new government officials have openly stated that they consider the particular method of waterboarding to be torture, e.g. Attorney General Eric Holder in the confirmation hearing before the Senate Judiciary Committee. This view will bring the US in line with the widely supported opinion that the prohibition on torture is of an absolute nature and that international law allows no exceptions to it.

VIII. Prosecution of Bush administration officials: A (very) hot potato is the question whether or not any officials of the Bush administration (or President Bush himself) should/could be prosecuted for their actions. Many voices have been raised on this issue, some well-founded others merely trying to make a political statement. But as the new administration has yet to decide if it wants to prosecute any former government officials, others have started to make a move in that direction. For example, the Spanish judge, Baltasar Garzon, who first came to international attention for prosecuting Chilean dictator Augusto Pinochet, will likely soon charge former high-level Bush administration lawyers for violating international law by providing the legal framework to allow the torture of prisoners at Guantánamo Bay. Alternatives to strictly legal actions are so-called truth commissions which could be installed and enable at least the full disclosure of what happened at e.g. Guantánamo Bay, by ensuring everybody who testifies that no legal actions will be taken against them.  

IX. The pledge to pursue the elimination of nuclear weapons: This recently announced undertaking may turn out to be one of the most difficult one. In view of the reluctance of some States to rid themselves of nuclear weapons or to stop pursuing to acquire these weapons, the US could find itself in a very dangerous position where it makes the first step without – at least for some time – receiving similar initiatives and steps of disarmament or non-armament from other key States. Even if it is an international effort that the US is seeking to assemble, and not merely a unilateral gesture, the first step will certainly be a risky one. Especially when considering the latest developments in Iran (the claims of progress in the Iranian nuclear Program) and North Korea (the launch of a rocket that may be the forerunner of a ballistic missile capable of carrying a nuclear warhead).

In view of all the above-mentioned indicators of a new approach to international law from the new administration it remains to be seen how much can actually be put into practice and how the international community will react to it. We’ll stay tuned.