Responsibility of state bystanders

(Delighted to welcome back alumna Monica Hakimi, who contributes this guest post)

When must states protect people from abuses committed by third parties?
That obligation (termed the “obligation to protect”) is everywhere in modern human rights law. Consider a few examples of how decisionmakers prescribe, invoke, or apply it:
► Under the Convention on the Rights of the Child, states must take measures to protect children from “physical or mental violence…while in the care of parent(s).”
► Non-refoulement prohibits states from returning people home if there is a risk of third-party harm. A state that deports someone despite that risk typically does not participate in the abuse. Rather, the deporting state fails to satisfy an obligation to protect.
► The International Court of Justice (bottom right) has interpreted the Genocide Convention to require states to protect people from acts of genocide committed by or in another state.
► The concept of responsibility to protect posits: (1) that each state must protect its population from certain atrocities, including atrocities committed by third parties; and (2) if one state fails to satisfy that obligation, it shifts to the international community.
► The International Law Commission (below left) has proposed a rule rendering states responsible where they delegate authority to an international organization that then violates rights. (photo credit) Under the proposal, a delegating state would be responsible even if the abuse were attributable only to the international organization.
In each of those examples, the state must protect someone from third-party abuse.

The entity committing the abuse may be a private actor, another state, or an IO. The critical point is that the duty-holding state may be responsible simply for standing by—for not satisfying an affirmative obligation to protect. The state need not participate in the abuse to be responsible.
Though the obligation to protect is prevalent, no generalized framework exists for appraising when states have it or what it requires.

Instead, decisionmakers prescribe and apply the obligation ad hoc — under different sources of law and for discrete groups of victims (e.g., children), harms (e.g., physical violence), or abusers (e.g., private individuals). As a result, states' practice is splintered and, at times, inconsistent or confused. My article State Bystander Responsibility, published earlier this year in the European Journal of International Law, seeks to remedy that problem by presenting a generalized framework on when states are and should be responsible for failing to protect people from third-party harm.

The framework explains the practice where it is uniform, and helps guide decisions where the practice is inconsistent or confused:
First, whether a state has the obligation depends on its relationship with the (actual or potential) abuser.

A duty-holding state must restrain third parties from committing abuse. Of course, the interest in protecting potential victims favors establishing that obligation. But varied considerations favor limiting when and how states assert their authority over third parties. The obligation thus requires a normative judgment: Given its particular relationship with the third party, are the state’s restraints desirable or overly intrusive? The practice provides considerable guidance on that question. A state generally must restrain third parties to whom it delegates governmental functions or who operate in its territory (or in territory under its control). By contrast, a state generally need not restrain third parties in other states. Broad assertions to the contrary do not reflect legally operative obligations. Consider, for instance, the responsibility to protect contention that all states must restrain any particular state which commits atrocities. Such an assertion is essentially unenforceable and in practice unenforced against particular bystander states.

Nevertheless, the general rule that states lack extraterritorial obligations to protect is subject to an important exception: A state may have that obligation where it substantially enables a third party to violate rights. In that event, the duty-holding state may or may not participate in the abuse under the traditional rules on attribution. But having enabled the abuser, the state must protect against its harm. A few examples:

► Serbia had to restrain the Bosnian Serbs in the ICJ's Genocide Case. (prior IntLawGrrls post)

► Russia had to restrain Georgian and Moldovan separatists that it supported.

► Turkey had to restrain the Turkish Cypriot administration that it propped up.

► And arguably at least, deporting states enable entities in the home country to violate rights, thus triggering obligations of non-refoulement.
Second, obligations to protect depend on the kind of harm caused. States must protect only against conduct that:

(1) causes serious physical or psychological harm; or

(2) affects someone because she belongs to a vulnerable group.

Treaty bodies sometimes assert that states also must protect against other conduct, especially where the abuser is a private actor. That assertion is inconsistent with substantial other practice. Indeed, the treaty bodies themselves apply the obligation more narrowly—and almost exclusively to conduct falling in the above two categories. Thus, states must restrain an employer who beats its employees (category 1) or discriminates on the basis of sex (category 2). But they need not restrain an employer from terminating an employee who is a bad worker or no longer needed. Yes, the termination affects the employee’s right to work. It does not trigger an obligation to protect because the state need not restrain the employer to protect its employees from termination. Rather, the state must try to fulfill the employees’ right to work by, for instance, offering them educational programs.
Finally, a state that has the obligation — because of its relationship with the third party and the severity of the harm — must take reasonable measures to restrain the third party. Reasonableness depends on context, but several factors inform whether particular measures are reasonable:

(1) the nature of the abuser (i.e., whether a private actor, another state, or an international organization);

(2) the nature of the harm;

(3) whether the practice specifically identifies the measures the state must take (e.g., requires criminal action) or leaves that determination to each state’s discretion;

(4) the scale of the problem; and

(5) the state’s capacity to take more effective measures. A duty-holding state is responsible if it takes either no measures or measures that are unreasonably lax to restrain the third party.

Gitmo 'Grrls

(One in a series on Experts at Law)

As mentioned in our recent Read On! Review, a recurrent theme in IntLawGrrl Kristine A. Huskey's new book is, to quote her,

the fact that women are woefully scarce in national security law, my chosen field. I do not mean to convey that I am the only woman in this field, as there are many women writing, speaking about, and practicing nationalsecurity legal issues, specifically relating to Guantánamo ...

She continued:

[E]very one of these women will tell you that they, too, are often the only female speaker on these issues in a conference room or on a panel filled with men. The world can stand to have more women in fields that are traditionally filled by men.

(pp. iv-v) Kristine then proceeded "to name a few" of the Gitmo 'Grrls who jumped to mind. Her list is reproduced here, along with links to these women and some of their works:

► IntLawGrrl Beth Van Schaack, Santa Clara Law. Her IntLawGrrls posts are here; list of other publications is here.

► IntLawGrrl yours truly (thanks, Kristine!), University of California, Davis. My IntLawGrrls posts are here; list of other publications is here.

► Leila Nadya Sadat, Washington University. IntLawGrrls posts about her are here; publications list is here.

► Gitanjali S. Gutierrez, Center for Constitutional Rights, attorney for detainees. IntLawGrrls posts about her are here; her op-ed is here.

► Agnieszka M. Fryszman, partner at Cohen Milstein, attorney for detainees.

► Beth Gilson, attorney for detainees.

► H. Candace Gorman, attorney for detainees, whom the Chicago Tribune recently profiled. She runs 2 Gitmo blogs, here and here.

► Sylvia Royce, attorney for detainees.

► Sarah Havens, Allen & Avery, attorney for detainees.

► Becky Dick, attorney for detainees.

► Hina Shamsi, staff attorney at the National Security Project of the American Civil Liberties Union. Her ACLU blog posts are here.

► Maria LaHood, Center for Constitutional Rights.

► Opinio Juris' Deborah Pearlstein, Princeton University. IntLawGrrls posts about her are here; her OJ posts are here; her publications list is here.

► Karen J. Greenberg, New York University. IntLawGrrls posts about are her here; some publications are listed here; her newest Gitmo book is here.

► Suzanne Spaulding, Bingham Consulting Group and former Executive Director of the National Commission on Terrorism, among many other natsec posts. An op-ed by her is here.

► Kate Martin, Center for National Security Studies. Some of her publications are here.

► Sahar Aziz, formerly an associate at Cohen Milstein, now Senior Policy Advisor at Office for Civil Rights, U.S. Department of Homeland Security.

► Barbara Olshansky, attorney for detainees. Her books are here.

► Jennifer Daskal, formerly senior counterterrorism counsel at Human Rights Watch, now a Department of Justice attorney.

Recognition is due to many other women as well, of course. (Readers' nominations welcome!)

There are, for example, all the IntLawGrrls and guests/alumnae who have contributed posts in IntLawGrrls' "Guantánamo" series. In addition to Beth, Kristine, and I, they are Elena Baylis, Ursula Bentele, Fiona de Londras, Monica Hakimi, Lynne Henderson, Elizabeth L. Hillman, Dawn Johnsen, Michelle Leighton, Pamela Merchant, Naomi Norberg, Hari M. Osofsky, Jaya Ramji-Nogales, and Lucy Reed. Not to mention guests/alumnae Mary L. Dudziak, editor of this book, and Mary Ellen O'Connell, interviewed here, both with respect to post-9/11 issues. Or my University of California colleague Laurel E. Fletcher, co-author of this book, an empirical study of the fate of ex-detainees.

And there are also the women who shared a Quonset-like tent with Jen Daskal and me during the December '08 week that, as posted earlier, I spent observing Gitmo military commissions on behalf of the National Institute of Military Justice. (A fuller account of my visit begins at page 9 of this report, which also includes dispatches from Executive Director Michelle Lindo McCluer and other NIMJ'ers) These tentmates were: Jill Heine, Amnesty International; Stacy Sullivan, Human Rights Watch; and Devon Chaffee, Human Rights First. And don't get me started on the many women journalists I met at Gitmo, or on the women JAG lawyers whom I watched provide excellent representation of various detainees as detailed defense counsel.

Bottom line -- memo to media reps, conference organizers, anthology editors, etc.:

There are many, many women now working in the field of national security. We've given you the list; it's your job to get in touch. As we posted when a similar issue arose years ago, the key is not only having women "in" the supposedly nontraditional fields of law. It's also having them recognized as being there.

Good question

There was a third option: In addition to the first two courses of action, we could detain people who had not actually committed any crime, but whom we thought might commit some terrorist act or harm the national security of America. These would be people we considered 'too dangerous' to release or even transfer to the custody of another country and who we could not charge and try in court due to lack of evidence or other related problems. ... This course of action -- preventive detention -- was, in fact, what we were doing under the Bush Administration! Would Obama continue such a policy, just more humanely and in accordance with domestic and international laws?

-- IntLawGrrl Kristine A. Huskey, on p. 275 of her superb new book, Justice at Guantánamo (2009), on which IntLawGrrl Naomi Cahn recently posted here, and about which I'll be posting a full Read On! review very soon.
Kristine's question was aimed at the Executive Order that President Barack Obama issued just days after his inauguration. Here at IntLawGrrls she'd posted about that order at the time. As yesterday's post by guest/alumna Monica Hakimi, and my own New York Times blog post this spring indicate, the question remains very much an open one half a year later.

Guest Blogger: Monica Hakimi

It's IntLawGrrls' great pleasure to welcome Monica Hakimi (left) as today's guest blogger.
Monica's an Assistant Professor of Law at the University of Michigan Law School. Her teaching and scholarship focus on public international law, international human rights law, the law of armed conflict, and U.S. foreign relations law. A graduate of Yale Law School, she clerked for U.S. District Judge Kimba Wood of the Southern District of New York. As a Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State, Monica worked on matters relating to nonproliferation, Iraqi reconstruction, international civil aviation, and international claims and investment disputes. She also served as counsel for the United States before the Iran-U.S. Claims Tribunal.
In her guest post below Monica discusses an issue about which she's recently published an article and been quoted in the New York Times; that is, reports of an Obama Administration plan to implement policy of prolonged detention for persons who, though they have been convicted of no crime, are presumed to present security threats.

A lawful security detention template

(Thanks to IntLawGrrls for inviting me to guest post on the issue of terrorism-related detention. I am a regular reader and fan of the blog so am delighted to be here!)

President Barack Obama hasn’t yet announced the details of his plans to revamp post-September 11 counterterrorism policy. But preliminary indications are that the final plan will be both retrospective and prospective:

► Retrospective in that it would close and try to resolve many of the problems associated with the facility at Guantánamo Bay.

► Prospective in that it may anticipate detaining administratively persons captured in the future — irrespective of whether they are captured on or off a traditional battlefield. (Obama seemed to be backing away this week from his earlier statement favoring "prolonged detention.")

The retrospective, Guantánamo-related aspects have been addressed at length.

I want to focus here on the prospective aspect, asking:

Does international law permit the United States to detain future terrorism suspects without criminal process?

Those who answer that question in the affirmative usually focus on the armed-conflict nature of our fight. They assert that we are at war with Islamist terrorist groups, and so may detain their members under humanitarian law, the law that governs armed conflicts. That doesn’t quite resolve the question, for a number of reasons:

► First, though we are engaged in an armed conflict in some parts of the world, it’s questionable to assert that we are engaged in a global armed conflict such that humanitarian law governs our counterterrorism measures worldwide. (This is one reason the Bush Administration’s “Global War on Terror” rhetoric was so divisive.) If we are not engaged in a global armed conflict, then humanitarian law cannot justify terrorism-related detentions outside “hot zones” of conflict. Many of the “high-value” detainees captured during the administration of President George W. Bush were not captured in traditional war zones. That’s likely to be the case in the future, as well.

► Second and more important, even if humanitarian law governs all terrorism-related detentions, it does not answer the question posed above. The humanitarian legal rules for this sort of conflict are silent with respect to detention. They assume that noncriminal detention is permissible, but do not establish any procedural or substantive constraints. The dominant modern position is that human rights law fills those gaps.

The question, then, is whether human rights law permits noncriminal, security-based detention.

Many human rights lawyers assert that it does not; human rights law requires terrorism suspects to be criminally prosecuted or released.

I disagree.

As I have detailed in my recent article, International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide, most human rights instruments establish procedural constraints on detention and a substantive requirement of non-arbitrariness. (The European Convention on Human Rights is notably distinct.) International actors broadly accept that security-based administrative detention is sometimes non-arbitrary, or lawful. But they have failed to articulate when that’s the case. This leaves room for interpretation. Interpreting human rights law to permit noncriminal, security-based detention is an aggressive but legally sustainable approach.

Is it a good idea?

In my view, that depends on the alternatives. They are not appealing:

► I have already alluded to one alternative — that states will assert that humanitarian law governs without the benefit of human rights law. This usually means detention without procedural or substantive constraint. That was the Bush Administration’s approach before the U.S. Supreme Court redirected it.

► A second alternative is that states will outsource their dirty work to other states. Or deport terrorism suspects despite the risk of mistreatment. Or kill suspects instead of trying to capture them.

Western liberal democracies — which face a real threat from terrorism but also are committed to human rights — have employed all of those tactics.

They have also been experimenting with security-based administrative detention. In Europe and Canada, these experiments have hooked into criminal or immigration proceedings. Terrorism suspects are detained on the (often disingenuous) supposition that the suspect will soon be criminally charged or deported. Those experiments have sometimes been flawed. But because pursued openly and with legislative and judicial participation, they indicate that states are groping for a new legal framework for detaining terrorism suspects. Refining human rights law to provide that framework would serve two functions:

► It would enable states to detain based on a lawful template that satisfies their security needs; and

► It would reduce the appeal of other, uncontrolled measures that undermine human rights.

It is, at the very least, an option worth considering.