The Consequences of Unlawful Preemption and the Legal Duty to Protect the Human Rights of Its Victims

Article excerpt

This article starts from the premise that the international legal community was exposed to a hegemonic interpretation of international law even before 9/11, and questions whether this exposure shook the foundations of international law. The author concludes that this was not the case. However, the U.S. in the aftermath of 9/11 has used this unilateral interpretation of international law to subject presumed Taliban and al-Qaeda prisoners to treatment in violation of U.S. obligations under human rights treaty law and customary international law. This article considers preemption, preemptive self-defense, the Bush doctrine, the war on terror, and its consequences for human rights of its victims. It also analyzes relevant jurisprudence from human rights bodies as well as from the U.S. Supreme Court and lower courts and concludes that the Bush doctrine vitiated international law, despite U.S. jurisprudential guidance. It exposes two interrogation techniques, extra territorial rendition and waterboarding which amount to torture and were frequently used by the Bush administration. Finally, the article shows the way back to adherence to international law.


This article was originally presented to the seventy-third International Law Association (ILA) conference in August 2008 at a panel entitled The (Mis)use of the Human Rights Argument and Preemptive Intervention in the Contemporary International Arena. Due to important developments directly bearing on the topic of this article, including hopeful signs by the new U.S. administration, an update was considered necessary.


Even before 9/11 and its aftermath, international law was exposed to a hegemonic interpretation by the U.S. The question was raised whether such a position would shake the foundations of current international law. (1) Although it was too early to conclude that the U.S.' attitude had indeed changed the foundations of international law, it was observed that the U.S. has moved away from traditional international law towards an increased use of its own domestic legal system, making it a tool for foreign policy. The adoption by Congress of the Patriot Act in October 2001 as well as the American Service-Members' Protection Act (ASPA) in January 2002 are clear examples in this regard. The various domestic legal proceedings regarding Guantanamo detainees and the ensuing obstructions to it by the Executive (e.g., the creation of Military Commissions in November 2001 and the Combat Status Review Tribunals in July 2004) confirm this trend.

Additionally, the U.S.' interpretation of preemptive or anticipatory self-defense in the 2002 National Security Strategy, (2) its drafting of the illfamed torture memoranda where in the war on terror, law, and legal ethics have been sacrificed to a misguided notion of political expediency, (3) and congressional attempts to circumvent the judgments handed down by the U.S. Supreme Court in Rasul v. Bush and Hamdi v. Rumsfeld (4) through the enactment of the Detainee Treatment Act (DTA) in December 2005, (5) followed by the Military Commissions Act (MCA) signed into law in October 2006 in the wake of Hamdan v. Rumsfeld, (6) are all signs that, despite the repudiation of almost the entire world legal community, this trend continued. (7)

The U.S. Supreme Court's decision in Medellin v. Texas held that International Court of Justice (ICJ) decisions under the Vienna Consular Convention are not binding federal law and rejected presidential enforcement of ICJ judgments over state proceedings. (8) In my opinion, the Medellin opinion indicates that the U.S. was on the unilateral path in international law during the Bush administration despite three earlier cases in which the ICJ appealed to the U.S. government to adhere to international law. (9) It is within this overarching framework of the current state of international law in the international arena that this article deals with preemptive intervention and the consequences for the human rights of its victims. …