Thursday, May 1, 2008

Where are the international human rights law ‘norm entrepreneurs’ in Gitmo litigation?

In an article entitled “What Human Rights Law Could Do: Lamenting the Lack of an International Human Rights Law Approach in Boumediene and Al Odah” that I have forthcoming in the Israel Law Review, I wonder a little about why international human rights law appears to play so small a part in litigation relating to Guantánamo Bay. (photo credit) Although the Supreme Court has not yet handed down its judgment in Boumediene & Al Odah (and I believe, like many others, that it will in fact extend constitutional habeas corpus entitlements to the base on reasoning along the ‘unincorporated territory of the United States’ lines), the focus of the paper is more on the strategic reasons that might lie behind failures to argue international human rights law (IHRL) in these cases.
The first point is this: although argumentation in cases on Guantánamo Bay is primarily based on domestic legal standards, this does not preclude reliance on international human rights law. The article makes the point – drawing on our own Diane Marie Amann’s excellent “Raise the Flag and Let it Talk” – that IHRL can be used to help to give contemporary meaning to domestic legal standards and ought to be drawn upon in appropriate circumstances. The current security paradigm is precisely such an appropriate moment because IHRL is designed with emergency in mind in a way that US domestic law is not; it is a model of accommodation, to borrow the wonderful formulation of Fionnuala Ní Aoláin (below right) and Oren Gross (Law in Times of Crisis, 2007). In addition, international human rights law standards relating to detention, habeas corpus and so on have developed through jurisprudence that focused largely on the legitimate democratic crisis that arises in times of terrorist threat; thus the standards have been set with the need to detain in mind (see further my "The Right to Challenge the Lawfulness of Detention: An International Perspective on US Detention in the War on Terrorism" (2007) 12(2) Journal of Conflict and Security Law 223). It should also be noted that the US Constitutional model of rights and IHRL have a common core value: the protection of individual dignity from overly repressive or invasive state action, regardless of one’s citizenship (INS v St Cyr) but taking into account that one’s behaviour may be relevant to the extent that one can enjoy certain (although not all) rights in an unimpeded way (Hamdi). Thus, the fact that the International Covenant on Civil and Political Rights, for example, is a non-self executing treaty and has not been incorporated into US domestic law does not mean that it ought never to be relied upon in court – why not argue international standards to try to reshape the content of domestic ones?
It may be that lawyers do not argue IHRL because of the US Government’s well-documented belief that the War on Terrorism is governed by international humanitarian law (IHL) alone: international human rights standards, in this calculation, do not apply. As I say in the paper, this is (a) wrong, and (b) not a reason to ignore IHRL in argumentation. The idea that IHRL is completely displaced by IHL in the War on Terrorism completely ignores the more nuanced conception of lex specialis laid down by the International Court of Justice, the European Court of Human Rights, the Inter-American Court of Human Rights, and virtually all of the treaty enforcement bodies of the United Nations. The contemporary understanding of the relationship between the two bodies of law is one of complementarity, not of complete displacement. In addition, it seems counterintuitive to allow the Government’s conception of applicable law dictate the content of petitioners’ arguments: shouldn’t the petitioners argue that IHRL applies to Guantanamo Bay anyway? [On the principles of exceptional extra-territorial application in the context of Guantanamo see my article “Guantanamo Bay: Towards Legality” (2008) Modern Law Review 36]
The fact is that in two of the most pressing questions in Guantánamo Bay litigation on habeas corpus international human rights law offers a well-developed and contextually appropriate body of law to lawyers outlined in detail in the paper:
► First of all, it lays out the essential ingredients and implied non-derogability of the right to challenge the lawfulness of one’s detention, which could be drawn upon in arguments about the adequacy of the Combatant Status Review Tribunals as alternatives to habeas.
► Secondly, IHRL offers an extremely rich line of jurisprudence on the exceptional extra-territorial application of human rights obligations because of their object and purpose, which includes the principle that IHRL obligations apply to extra-territorial activities where a place or person is under the effective control and authority of the acting state. This jurisprudence could be employed to argue for exceptional extra-territorial application of limited constitutional rights (the extent being determined by reference to the 'Mathews Calculus' as endorsed in Hamdi) in analogous situations.
International human rights law is an applicable, useful, relevant, and contextually appropriate source of authority in the attempt to achieve fairness of procedures and an adequate review mechanism for those detained as suspected terrorists in the War on Terrorism. So why is it not being deployed in US courts? Where, to borrow a term used by Melissa Waters (left), are the “norm entrepreneurs” in the practicing profession [quite apart from law professors being entrepreneurial in amicus briefs]? As I say near the end of the article:

[T]he decision to all but ignore international human rights law reads as a concession to the Administration’s position that domestic law has a monopoly on the treatment of Guantanamo Bay detainees. This decision is lamentable on both practical and doctrinal levels. On a practical level it is to be lamented because the protections afforded by an understanding of constitutional standards informed by cotemporary international norms arguably affords more secure protection to suspected terrorists. On a doctrinal level it is to be lamented because it acquiesces in a view of domestic law as a thing untouched by international standards and understandings of individual rights that is not only antiquated but also out of step with the original conception of US law, which seems to have been one of a body of rules receptive to (if not occasionally in need of) external influence. [Internal reference omitted] … It seems difficult, if not impossible, to read this strategic decision as anything other than one that indicates a willingness to play out the drama of Guantanamo detainees’ rights on the pitch chosen by the administration, rather than to change its intellectual location through the injection of contextually relevant international legal standards.


Diane Marie Amann said...

Dear Fiona,

Many thanks for the kindness of citing my "Raise the Flag" essay on the use of external norms in constitutional decisionmaking. If I may make so bold, my subsequent trilogy of articles on detention more explicitly analyzes how specific international human rights and international humanitarian legal norms apply to specific aspects of the United States' post-9/11 detention and interrogation policies. They are:

-- Guantánamo, 42 Columbia Journal of Transnational Law 263 (2004), available at

-- Abu Ghraib, 153 University of Pennsylvania Law Review 2085 (2005), available at

-- Punish or Surveil, 16 Transnational Law and Contemporary Problems 873 (2007), available at

Thanks too the post,


Naomi Norberg said...

I cite the entire trilogy when examining post-9/11measures in terms of IHRL on states of emergency (and reaching the same conclusions as Fiona has laid out so well here)in my as-yet unpublished dissertation (which will likely come about in French before English, if at all). I would assume practitioners aren't raising IHRL for fear of wasting their precious argument time, which is a ratherdismal thought.