The change occurs in the Fourth Periodic Report of the United States to the U.N. committee, which monitors states parties' compliance with the International Covenant on Civil and Political Rights.
As noted Saturday in our first post on the Fourth Report, the United States appeared in its submission to soften its stance vis-à-vis the question of whether a state’s human rights obligations apply when that state is operating extraterritorially.
With regard to applicability of human rights law in time of armed conflict, the change of U.S. views was express. In particular, the United States stated in the Fourth Report, at ¶ 506:
With respect to the application of the Covenant and the international law of armed conflict (also referred to as international humanitarian law or “IHL”), the United States has not taken the position that the Covenant does not apply “in time of war.” Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of application.The United States stated that “typically” it is international humanitarian law that regulates the conduct of states in armed conflict situations, according to the doctrine of lex specialis. In the next breath, however, the U.S. submission stated at ¶ 507:
In this context, it is important to bear in mind that international human rights law and the law of armed conflict are in many respects complementary and mutually reinforcing. These two bodies of law contain many similar protections [such as the prohibition against torture].Later, the submission noted that the choice of law question is fact-specific:
Determining the international law rule that applies to a particular action taken by a government in the context of an armed conflict is a fact-specific determination, which cannot be easily generalized, and raises especially complex issues in the context of non-international armed conflicts occurring within a State’s own territory.These passages suggest both a more relaxed understanding of the relationship between these two bodies of law and an imperative to harmonize legal obligations when there is no direct contradiction between them.
In addition, this language suggests that it is the United States' view that there may be aspects of a state's conduct that are, in fact, governed by human rights law, even in a state of armed conflict.
Thus, human rights law can be employed as an interpretive aid to add content to undefined terms in international humanitarian law, such as “judicial guarantees” and “humane treatment,” or to expound upon treaty obligations, as in situations of occupation or detention when the occupying state exercises plenary power over territory or individuals.
Despite the Fourth Report's claim that the United States "has not taken the position" that human rights do not apply in armed conflicts, prior administrations have, in fact, argued to this effect. Even in its prior submission to the Committee—The Second and Third Periodic Report submitted in 2005—the United States stated, in response to a request for information concerning the treatment of detainees on Guantánamo, that the entire topic was outside the purview of the Committee, for the reason that the ICCPR does not apply extraterritorially. In addition, it was submitted at ¶ 130 of the Second and Third Report:
The United States also notes that the legal status and treatment of such persons is governed by the law of war.The United States argued this position more forcefully in litigation before the Inter-American Commission of Human Rights involving the legality of the detention center on Guantánamo Bay Naval Base. In its brief before the Commission (styled "Response of the United States for Request for Provisional Measures—Detainees in Guantánamo Bay, Cuba"), the United States argued in 2002:
► At p. 15:
It is humanitarian law, and not human rights law, that governs the capture and detention of enemy combatant in armed conflict.► At p. 20:
This case … involves solely the interpretation and application of specific articles of the Geneva Convention and related customary international humanitarian law. …► At p. 21:
International human rights law is not application to the conduct of hostilities or the capture and detention of enemy combatants, which are governed by the more specific laws of armed conflict.In that case, the Inter-American Commission ultimately issued precautionary measures on behalf of all individuals then detained on Guantánamo. (See here and here).
In the first case filed by an individual detainee, Djamel Ameziane (of Algeria), the Inter-American Commission issued additional precautionary measures. (See press release from the Center for Constitutional Rights here).
In August 2011, the Commission issued another resolution urging the United States to close the Guantánamo Bay detention facility.
Besides this little nugget, there is lots of interesting material in the U.S. submission. In particular, in addressing various issues raised by the Committee in its last Concluding Observations, the United States discusses the:
► Humane treatment and interrogation of all detainees;
► Closing of CIA detention facilities;
► Definition of “terrorism” employed in the immigration and counter-terrorism context;
► Detention regime in Afghanistan; and
► Non-refoulement obligations of the United States.
The Fourth Report also provides an accounting of efforts to hold individuals and entities responsible for detainee abuse.
Well worth a read...