Gabor Rona on International Law at The Judge Advocate General’s Legal Center and School
On March 28, 2014, Human Rights First's Gabor Rona presented a lecture on the intersections of International Humanitarian Law and International Human Rights Law at The Judge Advocate General’s Legal Center and School, U.S. Army, in Charlottesville, Virginia.
Good morning Dean Whitford, Col. Garrett, Professor Lee, distinguished guests.
I truly can’t recall a greater honor than to have been asked to be here with you today. When Col. Risch invited me to give this presentation and Prof. Lee sent me the list of past Solf-Warren speakers, I had to ask myself “What am I doing in this succession of distinguished scholars and public servants?”
You see, in 1999, with 15 years of private criminal and civil practice under my belt and a newly minted LLM from Columbia, I lucked into a job in the ICRC legal division in Geneva. I say “lucked into” because you all know about ten times more about IHL (I call it IHL not LOAC – and will talk about that some more in a bit) but anyway, you all know about ten times more about IHL than I knew in 1999. I got the ICRC job when the ICRC needed a common law-trained criminal lawyer to help them through some litigation in the Yugoslavia Tribunal. But there was an even more significant factor in my getting that job: I had the temerity to apply for it.
I’m telling you this because I always like to dispense career advice to young and talented lawyers. And the career advice is something I learned from a Woody Allen movie 35 years ago: “80 % of life is just showing up.” The other 20% is important, of course. Still, we sometimes underestimate the importance of creating our own opportunities.
But this is not a graduation ceremony, so let’s get to the meat and potatoes.
This year, you’ve spent a good chunk of time considering the emerging norm known as the Responsibility to Protect – R2P. To really understand R2P, its role and whether it is or isn’t law, you have to show up not only for IHL but also for International Human Rights law.
So today I want to talk about the intersections of IHL and IHRL, not only to contextualize R2P, but because of the much broader implications for all aspects of modern conflict, international relations, national security interests, and most of all, because of how all these subjects meet in the quest for justice and recognition of human dignity.
I start with the premise that absent the rule of law, we have nothing. Martin Scheinin, the former UN Special Rapporteur on Human Rights and Counterterrorism put it this way: law is not a value to be placed on the scale of competing values. Law is the scale upon which all values are weighed. In other words, with law as the constant, there can be no legal vacuums.
But the relevance of existing law has been challenged. It’s been said that IHL is constantly being re-formed to fight the last war, not the next one. The Third Geneva Convention on protection of prisoners of war, for example, was the consequence of a relatively new phenomenon of WW I: the taking of large numbers of enemy prisoners. The Fourth Geneva Convention of 1949 on protection of civilians was the product of the Holocaust. The 1977 Additional Protocols were the response to the rise of internal and anti-colonial conflicts. The fact is, these developments have been crucial to the humanization of each war that came next. The Nazis committed unspeakable atrocities against civilians – again, before the 4th Geneva Convention – but were attentive to their obligations under the 3d. So much so that Hitler considered renouncing it, not so much because he didn’t want to treat allied prisoners humanely, but because he didn’t want Nazi prisoners to expect humane treatment at the hands of the allies!
Still, it’s been argued that existing IHL is ill-suited to the challenges of modern, asymmetric warfare fought by amorphous groups of non-State actors, often without regard to State boundaries.
Likewise, the application of Human Rights law to situations of armed conflict has been challenged, as has been the extraterritoriality of human rights obligations, whether in war or peace.
I reject the argument that IHL is quaint. I reject the argument that human rights law has no application to war. I reject the argument that a State may operate outside its borders without regard to its international human rights obligations, whether in war or peace. And I find that while there are plenty of bases for disagreement about the content of IHL and the role of IHRL, some challenges are shortsighted, coming from those who don’t like or don’t understand the content of IHL and want to cherry pick the provisions they’ll obey. Or they don’t understand what it means for IHL to apply only to armed conflict, and how limited is the role of human rights law in armed conflict.
I will not use my time today to defend IHL. Those of you trained in the topic appreciate its applicability, its relevance and its content. Instead, for those of you already familiar with debates about how we fit modern security operations into existing legal frameworks, my intention is to challenge some particularly ‘US-centric’ perspectives on both IHL and IHRL. A good way to start is with the IHL v. LOAC distinction.
They are said to mean the same thing, but the terms represent some very different gestalts.
- Europe and much of the rest of the world speaks of IHL. The US speaks of LOAC.
- Europe and much of the rest of the world has contemporary experience or living memory of the effects of war on the civilian population. The US, not so much. While the US has been attacked, most notoriously on 9/11/2001 and before that, at Pearl Harbor in 1941, American civilians have fortunately been spared the direct effects of war on their soil. During the Civil War, civilians took picnics to the battleground. And even of the two more recent attacks of 2001 and 1941, only the 9/11 attacks targeted civilians.
- So it should come as no surprise that when Europe speaks of IHL, it is with an emphasis on the protection of the civilian population, or Geneva law, given the experience of the Holocaust and the sad fact that civilians have increasingly become the targets, rather than the collateral damage of warfare.
- And when the US speaks of LOAC, it is with emphasis on force protection, or Hague law on the conduct of hostilities, given the relative distance that American civilians enjoy from the ravages of war.
Now, you may argue that this American emphasis is precisely why the US has not had to face war on its own soil – that the best defense is a good offense. Maybe so in the past. But I suggest that the US has taken it too far, as a matter of both law and policy. As concerns law, the US is now dangerously outside the mainstream of international legal thinking in at least three important respects:
- On what does and does not constitute armed conflict,
- On the balance between force protection and civilian protection in armed conflict, and
- On the role of human rights law in armed conflict.
As a matter of policy, this is all to the detriment of American national security and global respect for human rights.
It may seem counterintuitive that when it comes to national security, less hard power and more soft power means more security. But the war paradigm has more than run its course. Smart power recognizes an emphasis on a ‘whole of government’ approach, including diplomacy, sanctions, education, criminal prosecution, intelligence gathering and sharing, humanitarian assistance and where all else fails, force. But when force is necessary, it must be pursuant to peace time rules, where possible, with war as a last resort. And where war is necessary, it should be flavored – especially in wars with non-state actors - less by LOAC sensibilities and more by those of IHL, less by force protection and more by civilian protection, and in all cases, more by the dictates of human rights law. I’ll make that case in a minute, but first, want to give you a few examples of how differently IHL and the relationship between IHL and IHRL is viewed in the US than elsewhere.
- In the US, there’s little question but that we’re at war against Al Qaeda. In the rest of the world, there’s little agreement that a State can be at war against such an amorphous non-State entity.
- In the US, there’s little question that this war is of global reach. In the rest of the world, the notion of a global non-international armed conflict is rejected.
- In the US, there’s little question that in this war, we can target “members” of the enemy. In the rest of the world, there are legitimate questions of what “membership” in an amorphous non-State entity even means; and so-called “signature strikes,” where the target’s identity is unknown but he’s killed because he’s doing things that look like what the enemy does, are considered beyond the pale.
- In the US it is argued that we are also at war against Al Qaeda’s so-called “associated forces.” In the rest of the world, there is serious doubt that this international armed conflict concept of co-belligerency can be transposed to wars involving non-state armed groups.
- In the US, it is accepted that our military commissions meet the minimum standards of due process expressed in Common Article 3 of the Geneva Conventions: “all the judicial guarantees recognized as indispensible by civilized peoples.” In much of the rest of the world, Guantanamo military commissions are correctly thought to be a farce, something more fitting for tin pot dictatorships like North Korea, or what seems to be emerging in Egypt.
- Actually, I want to caveat that. There’s one small segment of the US, other than human rights advocates like me, who always had their doubts about the Military Commissions. That would be the executive and legislative branches of our federal government. That may seem odd, since it was the executive that proposed military commissions and the Congress that created them. But check this out. Before Military Commissions, we had a federal law that made it a war crime to violate Common Article 3. The Military Commissions Act revamped the War Crimes law. It removed the blanket prohibition of violations of Common Article 3 and replaced it with a laundry list of specific violations of Common Article 3. But something was missing from that laundry list. Can you guess what it was? Yes, the war crime of withholding “all the judicial guarantees recognized as indispensible by civilized peoples.” In other words, the executive and legislative branches had some smart lawyers, ones who knew very well that what they were creating was arguably a war crime.
- Don’t get me wrong. There is a proper place for military commissions. They are our common law war courts borne of military necessity. But the long arm of our federal courts’ jurisdiction in terrorism cases makes the claim of military necessity for military commissions an absurdity.
- Two final, and perhaps most important, examples of disconnect between the US and the rest of the world: The US rejects the notion that Human Rights law applies in armed conflict or to US conduct beyond US borders. The rest of the world, including virtually every expression of international jurisprudence from the International Court of Justice to the Inter-American Court of Human Rights to the European Court of Human Rights and to the Human Rights treaty bodies, rejects the US view.
How does the US outlier position hurt us?
- Such aggressive legal interpretations borne of an emphasis on force protection rather than on national security interests and at the expense of civilian protection are, in the first place, unnecessary where US forces are not even being placed at risk, for example, in the case of remote targeting.
- Second, aggressive legal interpretations lead to taking liberties with the principles of distinction and proportionality. It should be no surprise that as a result, we are risking creating two more terrorists for each one we neutralize through targeted killings gone astray and detention at Guantanamo. General McCrystal and General Petreus, neither one a shrinking human rights violet, have both said as much.
- Third, as concerns targeted killings, a good deal of the opposition has been focused on the problem of so-called “civilian casualties.” But this needs parsing. Civilians as opposed to what? Combatants, of course. But outside armed conflict, the combatant/civilian distinction doesn’t exist and principles of distinction and proportionality don’t apply. Everyone is a civilian. So what do we mean by “civilian casualties” in connection with drone strikes outside of armed conflict? Well, it seems we mean only “people we didn’t intend to kill.” That’s a woefully under-inclusive definition. Government officials, reporters, and even some think tank analysts are perfectly happy to exclude people from the “civilian” column simply because a government official labeled the person a “terrorist,” or “militant,” or “insurgent,” or my favorite, a “bad guy.” You can be all these things, but if it ain’t armed conflict, you’re still a civilian and only targetable if your conduct poses an imminent threat to American lives that cannot be ameliorated with less than lethal means. A prime example of misuse of language that can have deadly results is in the President’s Policy Guidance on targeted killings entitled “U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities.” The designation “outside areas of active hostilities” is important, as is the fact that the guidance applies not just to the Taliban or Al Qaeda, the forces against whom the administration claims to be ‘at war’ under the 2001 Congressional Authorization for the Use of Military Force, but to suspected terrorists more generally, against whom we are not at war. Still, the guidance says that lethal action will be taken only if there is “near certainty that non-combatants will not be injured or killed.” An attendant footnote then explains the combatant/non-combatant distinction in law of armed conflict terms, but then adds that the term “combatant” includes “an individual who is targetable in the exercise of national self-defense.” In other words, including situations outside of armed conflict. The reason I spend so much time on this detail is that it is emblematic of the administration’s deliberate obfuscation between what is and is not war. If we don’t first kill all the lawyers, then we should at least demand that they get their story straight because at a minimum, people living in a democracy deserve to know who they are at war against and who is being killed in their name. And if the context is armed conflict, being a terrorist, militant, insurgent and bad guy does not necessarily make you targetable. So yes, let’s continue to focus on collateral damage, but let’s also recognize the possibility that many more people are dying because they’re wrongly targeted than because they are “collateral damage,” the unfortunate victims of the principle of proportionality.
- Fourth, aggressive legal interpretations lead to asserting a war paradigm where it does not belong. It is questionable that Al Qaeda still conducts attacks of sufficient severity or frequency to constitute an “armed conflict.” It is even questionable that Al Qaeda today is, if it ever was, an entity of sufficient organization that it is capable of being considered a party to an armed conflict. (To have an armed conflict, you have to have parties, meaning entities capable of exercising rights and responsibilities under IHL, whether or not they actually chose to do so). And it is questionable that “associated forces” of Al Qaeda exist as a matter of law, or as a matter of fact. That concept is hardly distinguishable from a generalized “war on terror,” which can only exist in the most rhetorical sense. You can have wars against proper nouns, like Germany and Japan, because they can surrender and promise not to do it again. You’ll never get that from “terrorism.”
- Fifth, what precedents are we setting? We do not have a monopoly on drone technology. What we sow in Afghanistan, Somalia, Yemen and Mali will be reaped by the victims of North Korea, Iran, Russia, Hezbollah and other aggressive State and non-State actors.
- Sixth, what are we doing to our reputation as a standard-bearer for human rights? Our post-9/11 military adventurism in Iraq, our misadventures in torture and black sites and our failure to hold their architects accountable, our persistence with fatally flawed military commissions, and our failure to obey applicable international law in our targeting practices, whether in or outside of armed conflict, have all had their repercussions. The United States has had to muffle its voice in the face of human rights violations by others for fear of being branded a hypocrite. Our practices are cited as justification for what we used to call torture, arbitrary detention, enforced disappearances and extrajudicial killings when others committed them, but we now hesitate to call those things by their true name.
This is not just about reputation or the defense of human rights abroad. The world is now too small a place to think of American security distinct from global security. We can no longer expect to wall ourselves off from the “collateral damage” of misguided national security policies.
Now I’ve been complaining a good deal here. But at Human Rights First, we pride ourselves in being the organization that doesn’t merely make a point, but rather, strives to make a difference. So we issue what we call blueprints, or recommendations of specific actions that will help the United States come into compliance with mainstream views of international law which will also direct us to more effective national security policies and restore our reputation as a credible voice for human rights abroad.
In the grand scheme, our recommendation is to end the war paradigm and return our counterterrorism efforts to the realm of policing. This does not mean military force is out. But it does mean that we must privilege detention over targeting, trial by civilian court over indefinite military detention or military commission, and targeting policies based on human rights norms rather than those of armed conflict.
What changes would that actually require? As for detention and trial, not much. Since 9/11, the United States has arrested, indicted, tried, convicted and sentenced hundreds of people associated with international terrorism. Where? In its tried and true federal courts. Meanwhile, the Guantanamo Military Commissions have completed just one truly contested trial in over a decade. The present generation of military commissions has suffered a number of well-deserved judicial defeats and has yet to be considered by the Supreme Court. This is about politics, not law or security. And it’s certainly not about efficacy. That the alleged perpetrators of the most heinous attack ever committed against civilians on US soil are in custody, but have yet to be tried more than a dozen years since that attack is nothing short of astounding. I oppose the death penalty, but I’m rather confident that had they been sent to federal court, these defendants would have by now been tried, and if found guilty, been sentenced to death, and if sentenced to death, executed.
As for targeting, this is where the distinction between IHL rules and IHRL rules makes a difference. In war, it is legal to kill members of enemy forces, in other words, on the basis of status. Outside of war, it is only legal for the US to kill persons who pose an imminent threat to American lives and only if that threat cannot be ameliorated through less than lethal means, such as arrest. In other words, on the basis of conduct rather than status.
To aid in the implementation of policies and practices that respect the rule of law, to restore America’s reputation as an honest broker for human rights, and indeed, to improve the prospects for reducing the terrorist threat, the United States must break with its stubborn insistence on boundless war. We don’t need an expanded AUMF. We do need to unburden ourselves with the present, obsolete one. At the same time, especially where there is no war, and in order to avoid a legal vacuum, the United States must recognize the application of its human rights law obligations to its conduct abroad. That is the true road to global security, national security, and the promotion of values reflected in the law that you JAGS have sworn to uphold and defend. Until we do so, our protests against Russia’s violation of human rights in Crimea, for example, will be subject to challenge.
Many of you are too young to recall the heroic work done by JAGs in the aftermath of 9/11: opposing Bush administration lawyers’ misguided efforts to sideline the Geneva Conventions and impose conditions that violate the most fundamental principles of the law of war and human rights. Some things have changed, but we’re not out of those woods yet. In fact, we are constantly at risk of getting deeper into them. You are the ones whose awesome job it will be to speak truth to power in the language of peace and human rights, through your knowledge of both the content and limits of the laws of armed conflict and the law of human rights. You are the ones the rest of us will rely on to show up.