June 13, 2011
International Law and the War on Terror: The US-European Schism
Published at JURIST Germany and the United States see eye to eye on a lot. And so, German leader Angela Merkel got a 19 gun salute and what amounts to a state dinner last week (it is not called a state dinner because she is technically not the head of state, and therefore two guns shy of 21) even though her government refuses to share intelligence with the United States to conduct drone strikes in Pakistan. Why is this fly in the ointment? It is not that Germany opposes the war. Merkel has, in fact, committed thousands of troops to Afghanistan. It is that Germany has doubts about the drone program's compliance with international law. Publicly at least, the Obama administration expresses no such doubts, of course. So what causes the two strongest of allies see things so differently? For one thing, the two countries have different visions of the purposes of the Geneva Conventions. In the European collective memory, war is as much a scourge on civilians as on combatants. For Americans, war happens elsewhere to US combatants, not to US civilians, the last major war fought on US soil having been a century and a half ago. In Europe, human rights and "humanitarian law" (as the laws of armed conflict are known there) are part of a broader school curriculum, as the Geneva Conventions require. In the US, the "laws of war" (as they are known there) are more exclusively the province of the military and you are lucky to find it taught in law school, let alone high school. The two countries also differ greatly on enforcement of international human rights obligations. The main European human rights treaty, the European Convention on Human Rights, is enforced by an independent court. The main human rights treaty to which the US is a party, the International Covenant on Civil and Political Rights, has no enforcement mechanism applicable to the US. Meanwhile, American courts typically refuse to enforce the Geneva Conventions and human rights law. In Europe, human rights law is understood to apply in war time, although subject to the laws of armed conflict. Not so much in the US. In Europe, human rights law is understood to apply to a state's conduct beyond its own borders. Not at all in the US. Because the US is such an outlier, countries with robust human rights protection mechanisms must tread carefully in their dealings with their indispensable ally, for fear of violating their own legal obligations. It is not just Europe. Last month, a Canadian appeals court refused to extradite an indicted terrorist suspect to the US because he had been tortured in detention in Pakistan, with US complicity. Part of the reason other countries may balk at sending suspects to the US is the fear that they will end up in indefinite detention in Guantanamo or tried by its kangaroo court military commission system, rather than in the traditional federal courts. This is not idle speculation. Congress is now debating a law to prohibit federal court trials and to require Guantanamo detention and military commission trials for terrorism suspects. In Afghanistan, NATO forces fighting alongside US forces stopped turning al Qaeda and Taliban suspects over to the Americans after news broke in 2004 of torture at Abu Ghraib prison in Iraq. Obviously, not even US coalition partners believed the "few bad apples" meme pushed by the Bush administration. But the Obama administration has come a long way from the illegal practices of the early post-9/11 Bush administration in matters of detainee treatment. So why is the NATO policy still in place? Maybe it has something to do with the fact that the US continues to detain people without providing them the right to see or challenge the evidence, let alone to have a lawyer. The US also continues to insist on broad authority to conduct drone strikes without articulating the legal criteria it uses to determine their legitimacy. It continues to insist on broad powers to detain people without trial under questionable interpretations of the laws of war. It continues to insist on the right to transfer suspects to countries with records of detainee abuse under a veneer of "diplomatic assurances" that they will not be tortured, and without giving the detainee a right to challenge the decision. It continues to subject terrorism suspects to military trials that fail to provide the minimum judicial guarantees required by either the Geneva Conventions or by human rights law. And it continues to ignore its legal obligations to hold accountable the architects and perpetrators of US torture and to provide remedies to their victims. Winston Churchill famously said that the US always does the right thing—after it has exhausted all the other possibilities. The globalization of terrorism means that the US cannot win this battle alone. It needs international cooperation. No reasonably astute observer thinks otherwise. But the US has been slow to connect the dots between its failures to comply with international law and the decisions of allies to withhold essential cooperation, like intelligence sharing and transfer of terrorism suspects for prosecution. This is not about being sensitive to European sensibilities. America has different traditions and there are many issues on which it is perfectly fine to have different views and policies. This is about US counter-terrorism policies creating an obstacle to cooperation with the US, and about other countries' ability to accept cooperation from the US. It is about nothing less than a common defense against terrorism and the realization that national security will be enhanced, not diminished, by bringing US policies into compliance with international legal norms.