International Human Rights Law and the War on Terrorism
Jinks, Derek, Denver Journal of International Law and Policy
The September 11th terrorist attacks prompted a rethinking of the relationship between liberty and security. The attacks exemplify a new mode of organizing sustained violence that poses a fundamental challenge to United States (U.S.) and international law. Indeed, Anne-Marie Slaughter and William Burke-White recently described this critical juncture in global politics as an "international constitutional moment." (1) In the wake of the attacks, the U.S. confronted this challenge by initiating several important changes in its law and policy--the architecture of the "war on terrorism." (2) To be sure, the U.S. response generated substantial controversy concerning three related issues: (1) the most appropriate forum for prosecuting individuals responsible for the September 11th attacks; (3) (2) the international legal status of combatants captured in Afghanistan; (4) and, more generally, (3) the most appropriate role for law in any comprehensive strategy against international terrorism. (5) It is striking that these debates turn on which law, if any, applies in the "war on terrorism." The questions structuring these debates are by now familiar: Does the Constitution protect "enemy aliens"? Do the Geneva Conventions protect "unlawful combatants"? Although these are critical questions, the focus on U.S. constitutional law and international humanitarian law has unfortunately obscured the importance of another potentially relevant body of law: international human rights law. If applicable, international human rights law would establish conclusively--irrespective of the applicability of the Geneva Conventions or U.S. Constitution--that all persons subject to the jurisdiction of the United States, as a matter of law, are entitled to certain basic rights including: the right not to be detained arbitrarily; the right to humane conditions and treatment if detained; and, the right to a fair trial on any criminal charges.
INTERNATIONAL DUE PROCESS STANDARDS
For example, international human rights law informs the legal analysis of the most controversial aspects of U.S. antiterrorism policy including: trial of suspected terrorists by military commission; (6) indefinite detention of citizens designated as "enemy combatants;" (7) and, prolonged detention of aliens suspected of terrorist activity. (8) It is important to note that several international human rights treaties, (9) declarations, (10) and resolutions (11) establish minimum procedural protections for all individuals deprived of their personal liberty. Under Article 9 of the International Covenant on Civil and Political Rights (ICCPR), no one shall be "subjected to arbitrary arrest or detention" (12) or "deprived of his liberty except on such grounds and in accordance with such procedure as are established by law." (13) This provision also specifies that "[a]nyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him." (14) Article 9(3) provides that all persons arrested or detained on a criminal charge "shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release." (15) As interpreted by the United Nations (U.N.) Human Rights Committee, (16) the provision requires at a minimum that an individual must be brought before a judge or other officer within "a few days." (17) Finally, The ICCPR provides for the right to habeas corpus, or amparo. (18) Under this provision, anyone deprived of liberty by arrest or detention has the right to "take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful." (19) International human rights law has also established an extensive inventory of procedural rights for individuals facing criminal charges. The Universal Declaration of Human Rights (UDHR), (20) ICCPR, (21) African Charter on Human and Peoples' Rights, (Banjul Charter) (22) Inter-American Convention on Human Rights (ACHR) (23) and the European Convention on Human Rights (ECHR) (24) all include detailed fair trial provisions. …