The consequences of unlawful preemption and the legal duty to protect the human rights of its victims.

• Author: van Aggelen, Johannes

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.

EXPLANATORY NOTE

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.

1. INTRODUCTION

   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. (10)

2. PREEMPTIVE INTERVENTION

   In 1988, the U.S. Department of Defense (DOD) created a dictionarT which clarified the difference between preemptive attack and preventive war. (11) The DOD defines "preemptive attack" (preemption) as "[a]n attack initiated on the basis of incontrovertible evidence that an enemy attack is imminent." (12) Preventive war is defined as "a war initiated in the belief that military conflict, while not imminent, is inevitable, and that to delay would involve greater risk." (13) By analyzing these definitions, one could infer that there are in fact two different levels of anticipatory self-defense. Leaving no doubt about the burden of proof for cases in which it is applied, the language used to define preemption is particularly strong. On the other hand, prevention implies a certain subjectivity that allows for interpretation in each case in which it is applied.

   The DOD defines the Law of War as "[t]hat part of international law that regulates the conduct of armed hostilities. It is often called the 'law of armed conflict.'" (14) The 2006 Operational Law Handbook supports the doctrinal concepts and principles of FM 3-0 and FM 27-100. The Handbook states that "anticipatory self-defense serves as a foundational element" in military operations, "as embodied in the concept of 'hostile intent' which makes it clear [that commanders] ... should not have to absorb the first hit before the right and obligation to exercise self-defense arises." (15)

   1. Preemptive Self-Defense and the U.N. Charter

      Article 21 of the 2001 Draft Articles on State Responsibility adopted by the International Law Commission, stipulates that, "[t]he wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defense taken in conformity with the Charter of the United Nations." (16) The language of Article 51 of the U.N. Charter contemplates self-defense only "if an armed attack occurs against a Member of the United Nations...." (17) Consequently, the unsettled issue remains as to what constitutes an armed attack.

      The evolution of anticipatory self-defense in the pre-Charter era into a working customary law doctrine prescribing use of force short of war and proscribing certain conduct under its justification is accompanied by a very well-articulated set of rules for usage. (18) The classic case in this respect is the 1837 Caroline case between the U.S. and the U.K. (19) In this case, the court held that self-defense should be restricted to dangers which are "instant, overwhelming, leaving no choice of means, and no moment for deliberation." (20)

      Like reprisal, the U.N. Charter outlawed anticipatory self-defense in 1945. (21) Traditional self-defense in response to an armed attack was the only form of self-help that made it into the Charter. (22) Although it was originally intended to fit the regional arrangements, such as the inter-American system, into the general organization that Article 51 was added to the Charter in 1945, the law of self-defense has developed well beyond that purpose over the last half a century. (23) In the latter part of the twentieth century, recourse to the right to self-defense became an important tool in the fight against international terrorism. (24) There is no indication that this development was foreseen by the drafters of the Charter as there is no thorough discussion of the term "armed attack" in the records of the San Francisco Conference. (25) On the contrary, the drafting history suggests that the framers of the Charter left the concretisation of the concept of "armed attack" essentially to the interpretation of its organs and member states. This aspect was overlooked by Professor Myres McDougal who qualified Article 51 as "an inept piece of draftmanship...." (26)

   2. Contemporary Views on Pre-emptive Self-Defense

      Though Goodrich and Hambro's book on the U.N. Charter was the leading reference during the mid-twentieth century, the book edited by Judge Bruno Simma provides references to practices in the contemporary arena. Simma concludes that an anticipatory right of self-defense would be contrary to the wording of Article 51(if an armed attack occurs) as well as to its object and purpose, which is to cut to a minimum unilateral use of force in international relations. (27) Since the alleged imminence of an attack cannot usually be assessed by means of objective criteria, any decision on this point would necessarily have to be left to the discretion of the state concerned. (28) Indeed, as Anne Slaughter and William Burke-White observed, Article 51 was designed in a world where the use of force primarily involved attacks by one state against the territory of another state. (29)

      However, on the bench Judge Simma appears to have changed his mind. In a separate opinion in the Armed Activities on the Territory of the Congo case, (30) he criticized the ICJ for avoiding its responsibility to clarify the law as to whether an attack by a non-state actor could amount to an armed attack. Simma maintained that:

      Such a restrictive reading of Article 51 might well have reflected the state, or rather the prevailing interpretation, of the international law on selfdefense for a long time. However, in the light of more recent developments not only in State practice but also with regard to accompanying opinio juris, it ought urgently to be reconsidered, also by the Court. As is well known, these developments were triggered by the terrorist attacks of September 11, in the wake of which claims that Article 51 also covers defensive measures against terrorist groups have been received far more favourably by the international community than other extensive re-readings of the relevant Charter provisions, particularly the "Bush doctrine" justifying the preemptive use of force. Security Council resolutions 1368 (2001) and 1373 (2001) cannot but be read as affirmations of the view that large-scale attacks by...