Acting as a Sovereign versus Acting as a Belligerent
In many legal disputes, the selection of one body of law rather than another is outcome-determinative. The situation with targeted killings is no different. Although there are contrary impulses at the margins, in the main a human rights paradigm is more likely to restrict such operations while a law of war paradigm is more likely to sanction it. But the question is when each body of law applies, a question that is not explicitly addressed by either body. By looking at the underlying object and purpose of each body of law, however, an account of their respective spheres becomes apparent. This essay defends the claim that the dividing line is represented by a state acting as a sovereign as opposed to acting as a belligerent. In the former situation, the state acts as a ruler over its subjects and its activities are constrained by human rights law. In contrast, when the state acts as a belligerent during armed conflict, International Humanitarian Law regulates its actions. This essay provides a framework to determine when the state is acting in one mode rather than another: acting as a sovereign involves an unequal relationship (ruler-to-ruled), while belligerency is characterized by two, formally co-equal collectives facing each other in battle. At the closing stage of an armed conflict, the relationship of belligerency may give way to sovereignty, a transition point that is often characterized by the law of occupation. The argument is both normative and descriptive in the sense that the two bodies of law already embody these normative distinctions; therefore their respective application is currently delimited by these existing principles.
The United States’ Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change
The extraterritorial application of states’ human rights obligations has emerged as a pressing issue in international human rights law. And, it is destined to remain so given that states are increasingly asserting their power abroad in ways that affect the rights of individuals beyond national borders. As domestic courts, international tribunals, and human rights treaty bodies increasingly confront fact patterns and claims requiring a consideration of whether a particular human rights obligation applies extraterritorially, they have struggled to create a defensible and coherent framework of analysis. This process of doctrinal development and evolution has been decentralized to a certain degree since the various human rights instruments contain slightly different formulations for their scope of application, and there is no appellate body to harmonize the law. Nonetheless, through a process of cross-fertilization and parallel reasoning, a doctrinal convergence is now discernable within the opinions and other views of authoritative decision-makers representing the range of human rights treaty bodies and tribunals that have confronted the issue. According to this consensus, states owe human rights obligations to all individuals within the authority, power, and control of their agents or instrumentalities and can be found responsible whenever they cause harm to such individuals. In terms of which rights and obligations apply extraterritorially, human rights bodies are increasingly adopting a calibrated approach that hinges on the nature of the right, the degree of control the state exercises over the territory, individuals, or transaction in question. Starting in 1995, but more consistently during the Bush Administration, the United States has in its filings before these human rights bodies advanced a categorical and contrarian position that the obligations contained in the relevant human rights instruments have no extraterritorial application. This unqualified position is increasingly out-of-step with the established jurisprudence and with arguments being advanced, and conceded, by our coalition partners and other allies. As such, the United States now finds itself in a knotty adversarial posture with several human rights bodies on this issue and the related choice of law question. This dispute is more than a simple matter of competing semantics and treaty interpretations that will be resolved by clever exercises of statutory interpretation or a more searching review of the legislative history. Rather, there are broad philosophical principles at issue that go to the very heart of the human rights project. In particular, this debate surfaces a perennial tension between the idealized vision of human rights as universal attributes that we all enjoy simply by virtue of our shared humanity and the more realist view that human rights obligations are merely contractual undertakings that are binding only insofar as states have specifically consented to them as a function of pacta sunt servanda. And yet, the applicable texts are open to several equally plausible interpretations, and the legislative history is inconclusive as to states’ original intentions; this indeterminacy invites a teleological interpretive approach that must prioritize universality. The law has headed in a direction that is consistent with this imperative and is keeping pace with globalization and multitude of ways that states can assert their power abroad. This is fitting, because the alternative — that the treaties would permit states to harm people abroad in ways that would be prohibited at home — is untenable and perverse.Its firm stance confirms the United States as a persistent objector to any emerging customary norm. Nonetheless, the failure to acknowledge limited, well-established, and principled exceptions to a strictly territorial application of its human rights obligations ultimately undermines the legitimacy of U.S. arguments in these fora as well as its commitment to the human rights project more broadly. This paper argues that the upcoming hearings before the Human Rights Committee (HRC) — the treaty body charged with interpreting the International Covenant on Civil and Political Rights (ICCPR) — offer an opportunity for the Obama Administration to advance a more nuanced position that allows it to remain faithful to its lex specialis arguments, but also to make certain strategic concessions on extraterritoriality. The proposed shift in approach will demonstrate the United States’ respect for the views of human rights bodies and of its allies, bolster the universality of certain core human rights protections, and do much to bring to a close a historical chapter marred by allegations that the United States was endeavoring to create, and exploit, rights-free zones. Furthermore, the change of course advocated will not prejudice, and may actually enhance, more meritorious arguments at the United States’ disposal. This paper proceeds in four steps. By way of background, it quickly reviews the relevant treaty language and travaux preparatoires. With reference to exemplary decisions, it then maps the process of doctrinal development across the array of human rights treaty bodies and international tribunals (with a nod to some relevant domestic pronouncements) in order to identify the expanding areas of doctrinal consensus. Against this backdrop, it presents the United States’ rhetorical positions before several human rights bodies. By way of prescription and conclusion, it suggests some subtle concessions the United States could make in the forthcoming consultations before the Human Rights Committee, where it has reached a “stalemate” on this question. Although at first glance the United States position appears deeply entrenched, subtle cues in the United States’ most recent submission to the HRC suggests that its position on these issues may be softening and that the time for such a shift in approach may be ripe.
The Moral Dimension of Asymmetrical Warfare: Counter-Terrorism, Democratic Values and Military Ethics
PART I The superpower and asymmetry Chapter 1 Questioning the Resort to U.S. Hegemonic Military Force Harry van der Linden Chapter 2 Asymmetric Air War: Ethical Implications Martin L. Cook and Mark Conversino* PART II Jus ad Bellum, Jus in Bello, Jus post Bellum: Rethinking the Just War Tradition Chapter 3 Reframing Asymmetrical Warfare: Beyond the Just War Idea Thomas Frank Chapter 4 Armed Intervention and Democratic Dreams: Small Western Liberal Democracies and Multinational Intervention Allard Wagemaker Chapter 5 Asymmetric Warfare and Morality: From Moral Asymmetry to Amoral Symmetry? Carl Ceulemans Chapter 6 Military operations by armed UN peace-keeping missions: An application of generalized just war principles John W. Lango PART III Leadership and accountability Chapter 6 The Moral Dimension of Asymmetrical Warfare: Accountability, Culpability and Military Effectiveness Daren Bowyer Chapter 8 British Leaders and Irregular Warfare David Benest Chapter 9 The Lesson Avoided: The Official Legacy of the My Lai Massacre Lawrence P. Rockwood Chapter 10 Culpability - Senior Leaders Have Dirty Hands Donald A. MacCuish PART IV Soldiers' perspectives Chapter 11 Between Violence and Restraint: Human Rights, Humanitarian Considerations, and the Israeli Military in the Al-Aqsa Intifada Eyal Ben-Ari Chapter 12 The Phenomenon of Breaking the Silence in Israel: "Witnessing" as Consciousness Raising Strategy of Israeli Excombatants Erella Grassiani PART V Ethical Education and Decision-making for the Military Chapter 13 Ethics in the Core of Officer Education: Some Philosophical Aspects for Curriculum Transformation Jarmo Toiskallio Chapter 14 Why People Make the Wrong Choices - The Psychology of Ethical Failure J. Peter Bradley Chapter 15 (Dis)respecting the Law of Armed Conflict in Asymmetrical Warfare?: A Consequentialist Approach to a Consequentialist Question Daniel S. Blocq Chapter 16 Moral Dynamics in Culture Centric Warfare Patrick Mileham PART VI Stress and trauma Chapter 17 Dilemmas in the Employment of Combat Stress-related Clinical Research - the Imperative of Prevention Eric Vermetten PART VII The media Chapter 18 Politics, Media and War Coverage: an Indexed Relation? Javier G. Marin and Oscar G. Luengo Chapter 19 Asymmetrical Warfare and Modern Digital Media: An Old Concept Changed by New Technology? Uros Svete PART VIII Democracy under Scrutiny Chapter 20 Security versus Liberty?:Ethical Lessons from Post-9/11 American Counter-Terrorist Security Politics Wim Smit Chapter 21 Saying no to torture: a moral absolute, self-righteous or just naive? Maureen Ramsay Chapter 22 Dirty War, or: How Democracies Can Lose in the Fight against Terrorism Asta Maskaliunaite PART IX In Hindsight Chapter 23 Human Dignity in the Era of Counter-terrorism Ted van Baarda and Desiree Verweij.