Contemporary practice of the United States relating to international law.

• Author: Crook, John R.

GENERAL INTERNATIONAL AND U.S. FOREIGN RELATIONS LAW

State Department Legal Adviser Describes U.S. Approach to International Law

In a March 2010 speech to the annual meeting of the American Society of International Law, U.S. Department of State Legal Adviser Harold Koh discussed his role as legal adviser; the U.S. administration's vision of international law; the U.S. relationship with the International Criminal Court and the UN Human Rights Council; and what Koh described as "the law of 9/11." In this regard he discussed detentions, prosecutions, and use of force and targeting, including the legality of lethal attacks targeting specific individuals. Excerpts from his speech follow:

[T]he most important difference between this administration and the last ... is with respect to its approach and attitude toward international law. The difference ... I would argue is captured in an Emerging "Obama-Clinton Doctrine, "which is based on four commitments: ... ... First, a Commitment to Principled Engagement: A powerful belief in the interdependence of the global community is a major theme for our President, whose father came from a Kenyan family and who as a child spent several years in Indonesia. Second, a commitment to what Secretary Clinton calls "smartpower"--a "blend of principle and pragmatism" that makes "intelligent use of all means at our disposal," including promotion of democracy, development, technology, and human rights and international law to place diplomacy at the vanguard of our foreign policy. Third, a commitment to what some have called Strategic Multilateralism: the notion acknowledged by President Obama at Cairo, that the challenges of the twenty-first century "can't be met by any one leader or any one nation" and must therefore be addressed by open dialogue and partnership by the United States with peoples and nations across traditional regional divides, "based on mutual interest and mutual respect" as well as acknowledgment of "the rights and responsibilities of [all] nations." And fourth and finally, a commitment to living our values by respecting the rule of law. As I said, both the President and Secretary Clinton are outstanding lawyers, and they understand that by imposing constraints on government action, law legitimates and gives credibility to governmental action.... ... There are really five fields of law that have occupied most of my time: what I call the law of international justice and dispute resolution, the law of 9/11, the law of international agreements, the law of the State Department, and the law of globalization. Tonight I want to focus on the first two ... : the law of international justice and dispute resolution and the law of 9/11.... A. International Justice and Dispute Resolution By international justice and dispute resolution, I refer to the U. S.'s renewed relationship to international tribunals and other international bodies. Let me address two of them: the International Criminal Court and the U.N. Human Rights Council.... 1. The International Criminal Court ... As one of the vigorous supporters of the work of the ad hoc tribunals regarding the former Yugoslavia, Rwanda, Cambodia, Sierra Leone, and Lebanon, the United States has worked for decades ... to ensure accountability.... But as some of those ad hoc war crimes tribunals enter their final years, the eyes of the world are increasingly turned toward the ICC. At the end of May, the United States will attend the [Assembly of States Parties'] Review Conference in Kampala, Uganda. There are two key items on the agenda: stocktaking and aggression. In the current situation where the Court has open investigations and prosecutions in relation to four situations, but has not yet concluded any trials, the stock-taking exercise is designed to address ways to strengthen the Court, and includes issues such as state cooperation; complementarity; effect on victims; peace and justice; and universality of membership.... The Obama Administration has been actively looking at ways that the U.S. can, consistent with U.S. law, assist the ICC in fulfilling its historic charge of providing justice to those who have endured crimes of epic savagery and scope.... [W]e would like to meet with the Prosecutor at the ICC to examine whether there are specific ways that the United States might be able to support the particular prosecutions ... in the Democratic Republic of Congo, Sudan, Central African Republic, and Uganda. But as for the second agenda item, the definition of the crime of aggression, the United States has ... serious concerns and questions. The crime of aggression, which is a jus ad bellum crime based on acts committed by the state, fundamentally differs from the other three crimes under the Court's jurisdiction--genocide, war crimes, and crimes against humanity--which are jus in bello crimes directed against particular individuals. In particular, we are concerned that adopting a definition of aggression at this point ... could divert the ICC from its core mission, and potentially politicize and weaken this young institution.... First, there are questions raised by the terms of the definition itself, including the degree to which it may depart from customary international law of both the "crime of aggression" and the state "act of aggression." This encompasses questions like what does it mean when the current draft definition requires that an act of aggression must be a "manifest"--as opposed to an "egregious" violation of the U.N. Charter? A second question of who decides. The United States believes that investigation or prosecution of the crime of aggression should not take place absent a determination by the U.N. Security Council that aggression has occurred.... Third, there are questions about how such a crime would potentially affect the Court.... For example, how would the still-maturing Court be affected if its prosecutor were mandated to investigate and prosecute this crime, which ... would inevitably be seen as political--both by those who are charged, as well as by those who believe aggressors have been wrongly left uncharged? ... If you think of the Court as a wobbly bicycle that is finally starting to move forward, is this frankly more weight than the bicycle can bear? Fourth, would adopting the crime of aggression at this time advance or hinder the key goals of the stock-taking exercise: promoting complementarity, cooperation, and universality? ... And will moving to adopt this highly politicized crime at a time when there is genuine disagreement on such issues enhance the prospects for universal adherence to the Rome Statute? All of these questions go to our ultimate concern: has a genuine consensus yet emerged to finalize a definition of the crime of aggression? What outcome in Kampala will truly strengthen the Court at this critical moment in its history? What we heard at the Resumed Session in New York is that no clear consensus has yet emerged on many of these questions.... 2. Human Rights Council In addition to reengaging with the ICC, the United States has also reengaged the U.N. Human Rights Council in Geneva.... [Koh here discussed creation of the Human Rights Council, the previous administration's decision not to seek election to the Council, and the Council's strengths and shortcomings.] When the Obama Administration took office, we faced two choices with respect to the Human Rights Council: we could continue to stay away, and watch the flaws continue and possibly get worse, or we could engage and fight for better outcomes on human rights issues, even if they would not be easy to achieve. With the HRC, as with the ICC and other fora, we have chosen principled engagement and strategic multilateralism. While the institution is far from perfect, it is important and deserves the long-term commitment of the United States, and the United States must deploy its stature and moral authority to improve the U.N. human rights system where possible. This is a long-term effort, but one that we are committed to seeing through to success consistent with the basic goals of the Obama-Clinton doctrine: principled engagement and universality of human rights law.... B. The Law of9111 ... We ... have worked hard since we entered office to ensure that we conduct all aspects of these armed conflicts-in particular, detention operations, targeting, and prosecution of terrorist suspects-in a manner consistent not just with the applicable laws of war, but also with the Constitution and laws of the United States. Let me say a word about each: detention, targeting, and prosecution. 1. Detention ... This Administration and I personally have spent much of the last year seeking to revise [detention] practices to ensure their full compliance with domestic and international law, first, by unequivocally guaranteeing humane treatment for all individuals in U.S. custody as a result of armed conflict and second, by ensuring that all detained individuals are being held pursuant to lawful authorities. a. Treatment ... [O]n his second full day in office, the President unequivocally banned the use of torture .... He directed that executive officials could no longer rely upon the justice Department OLC opinions that had permitted practices that I consider to be torture and cruel treatment--many of which he later disclosed publicly--and he instructed that henceforth, all interrogations of detainees must be conducted in accordance with Common Article 3 of the Geneva Conventions and with the revised Army Field Manual. An interagency review of U.S. interrogation practices later advised--and the President agreed--that no techniques beyond those in the Army Field Manual (and traditional noncoercive FBI techniques) are necessary to conduct effective interrogations. That Interrogation and Transfer Task Force also issued a set of recommendations to help ensure that the United States will not transfer individuals to face torture. The President...