Abstract
In 2000 Theodor Meron published his landmark essay entitled The Humanization of Humanitarian Law. Meron demonstrated that there is a gradual convergence in protections between human rights law and international humanitarian law (IHL) developing, which is fueled by a common commitment to human dignity. He explained that the shifting nature of conflicts away from traditional international armed conflict to non-international armed conflict “necessitated both new norms and reinterpretation of existing norms”. “Calamitous events and atrocities” during these contemporary conflicts pushes the new rules towards human rights principles, he explained. The 9/11 attacks provided evidence for Meron’s thesis.
Thank you to Ashley Deeks, Monica Hakimi, and Matthew Waxman whose thoughtful comments were helpful in preparation of this essay.
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Notes
- 1.
Meron 2000 .
- 2.
Id. at 243–44.
- 3.
See Reply of the Government of the United States of America to the Report of the Five UNHCR Special Rapporteurs on Detainees in Guantanamo (Mar. 10, 2006), available at http://www.asil.org/pdfs/ilib0603212.pdf (arguing that human rights rapporteurs erred in applying human rights standards to detentions at Guantanamo Bay).
- 4.
See President George W. Bush, Address to the U.S. Congress (Sep. 20, 2001) (“On September the eleventh, enemies of freedom committed an act of war against our country.”)
- 5.
See International Commission of Jurists 2009, p. 20 :“[H]uman rights law provides sufficient flexibility for States to adjust to security needs; States should rely upon this framework rather than seek to re-write the rule book.”
- 6.
ICTY, Prosecutor v Dusko Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber I (IT-94-1-AR72) 2nd October 1995.
- 7.
See ICTR, The Prosecutor v Jean-Paul Akayesu, Judgment, Trial Chamber (ICTR-96-4-T) 2 September 1998 (providing the criteria for finding the existence of an armed conflict with a non-State group).
- 8.
See Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflict Article 1(1), June 8, 1977, 1125 U.N.T.S. 609 (defining the scope of application of the treaty).
- 9.
Matthew Waxman rightly notes that this characterization is an oversimplification because the combatant status of captured persons can be uncertain in international armed conflict as well. Waxman 2008 , p. 1382 (describing the use of the 3rd Geneva Convention Article 5 tribunals in the first Gulf War to determine whether captured Iraqis were prisoners of war or civilians). But he agrees that the problem of misidentification is more acute in conflicts with non-State groups like al Qaida.
- 10.
Meron 2000, pp. 254–255.
- 11.
Sandoz et al. (1987), pp. 861–89 (describing the relationship between the fundamental guarantees of Article 75 of Additional Protocol I and international human rights law).
- 12.
See, ICRC, Draft Resolution & Report: Strengthening Legal Protection of Victims of Armed Conflicts 10 (Oct. 2011) (“A particular humanitarian concern related to detention is the lack of procedural safeguards for persons subject to internment in non-international armed conflicts.”).
- 13.
See Bellinger and Padmanabhan (2011), pp. 222–24 (describing the procedural inadequacy of applying Third Geneva Convention Article 5 to the conflict with al Qaida).
- 14.
See Waxman 2008, p. 1384 (arguing the severity of consequences for misidentification in conflict with al Qaida merits departure from traditional IHL rules).
- 15.
Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004) (O’Connor, J. plurality).
- 16.
Id. at 539.
- 17.
See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3, Article 75(3) (“Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly…of the reasons why these measures have been taken.”) The United States does apply Article 75 as a matter of law in international armed conflicts today.
- 18.
The Fourth Geneva Convention grants civilian protected persons who the State wishes to detain initial review by a court or administrative body, the right of appeal to a court or administrative body, and twice annual status reviews. Geneva Convention [IV] Relative to the Protection of Civilian Persons in Time of War Articles 43, 78, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. Unlike Hamdi, the Fourth Geneva Convention permits administrative review in lieu of court review, and does not provide any right to counsel.
- 19.
The right of access to a court to review the lawfulness of detention is well-established in human rights treaties. See International Covenant on Civil and Political Rights Article 9(4), Mar. 23, 1976, 999 U.N.T.S. 171 (“Anyone who is deprived of his liberty by arrest or detention shall be entitled 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.”); American Convention on Human Rights Article 7(6), Nov. 22, 1969, 1144 U.N.T.S. 123 (“Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful.”); Convention for the Protection of Human Rights and Fundamental Freedoms Article 5(4), Nov. 4, 1950, ETS No. 5, 213 U.N.T.S. 221 (“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”). The right to counsel does not appear in the treaties per se, but has been the strong recommendation of human rights bodies. See, e.g., U.N. Human Rights Comm., Concluding Observations: Israel, ¶ 13, U.N. Doc. CCPR/CO/78/Isr (2003) (recommending that Israel provide counsel to anyone it administratively detains within 48 hours).
- 20.
Boumediene v. Bush, 553 U.S. 723, 732 (2008).
- 21.
Id. at 779.
- 22.
See Maqaleh v. Gates, 605 F.3d 84, 87 (D.C. Cir. 2010) (holding that detainees picked up outside of Afghanistan and transported there for detention do not have habeas corpus rights).
- 23.
Bellinger and Padmanabhan 2011, pp. 227–28.
- 24.
Letter from Phillip Carter, Deputy Assistant Sec’y of Def. for Detainee Policy, to Senator Carl Levin, Chairman of the Senate Armed Services Comm. (July 14, 2010), available at http://www.wcl.american.edu/nimj/documents/addendum.pdf?rd=1.
- 25.
Arguably, the use of an administrative process rather than court review suggests a desire to comport with the IHL civilian standards found in the Fourth Geneva Convention rather than with human rights law. See supra n. 18 (describing the Fourth Geneva Convention protections for detained civilian protected persons). But the primary innovation of these tribunals, a personal representative with fiduciary duty to the detainees, well exceeds the requirement of the Fourth Convention, and is closer to the counsel requirement found in human rights law.
- 26.
See Bovarnick 2010, p. 24 (describing the net effects of new review procedures).
- 27.
See ICRC, n. 12, p. 12 (“[The] principle [of non-refoulement] is not…explicitly incorporated into international humanitarian law governing non-international armed conflict.”) Article 45 of the Fourth Geneva Convention prohibits the transfer of civilian protected persons “to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.”
- 28.
States rejected an Austrian proposal to give prisoners of war the right “to apply for their transfer to any other country which is ready to accept them: Pictet 1960, p. 542.
- 29.
Meron 2000, pp. 254–55.
- 30.
Some scholars have found an implied non-refoulement obligation in the Geneva Conventions’ prohibition on torture. See Byers M, Legal Opinion on the December 18 2005 “Arrangement for the Transfer of Detainees between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan,” at 3 (Apr. 7, 2006), Amnesty Int’l v. Canada [2008] F.C. 336 (Can.). Such an approach would itself mirror human rights reasoning, as the Human Rights Committee and European Court of Human Rights have found non-refoulement obligations within their treaties under this theory. See Padmanabhan 2011 , pp. 85–86 (describing history of non-refoulement protection). Nevertheless, the ICRC apparently rejects this approach, as does at least one respected IHL scholar. See Greenwood C, Report: International Law Framework for the Treatment of Persons Detained in Afghanistan by Canadian Forces, at 27, para 64, Amnesty Int’l Can. v. Canada.
- 31.
See United States Written Response to Questions Asked by the Committee Against Torture, at 32 (Apr. 28, 2006), available at http://www.state.gov/g/drl/rls/68554.htm (“[T]he United States…believes that CAT Article 3 does not impose obligations on the United States with respect to an individual who is outside the territory of the United States.”)
- 32.
See Savage 2009 (describing the use of rendition).
- 33.
See Human Rights Watch 2005 (describing the torture of repatriated Russian detainees sent home from Guantanamo Bay).
- 34.
See Comm. Against Torture, Consideration of Reports Submitted by State Parties under Article 19 of the Convention: United States of America, annex 1, at 57, U.N. Doc. CAT/C/48.Add.3 (2005) (“U.S. policy is not to transfer a person to a country if it is determined that it is more likely than not the person will be tortured…”).
- 35.
See Padmanabhan 2011, at 100–102 (describing instances where States have misused diplomatic assurances).
- 36.
See Shane 2011.
- 37.
See Rubin 2011 (describing the efforts of NATO commander General John Allen).
- 38.
For an excellent critique of this rule, see Blum 2010 (arguing that necessity requires “a least-harmful-means test, mandating the capture or otherwise disabling of the enemy rather than direct targeting”).
- 39.
See ICRC (2009) Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. ICRC, Geneva (proposing change to traditional IHL rules in conflicts with non-State groups).
- 40.
See, for example, Corn 2010, p. 82.
- 41.
Professor Corn argues that human rights law appropriately influences detention operations, as a post-submission activity, but would be illegitimate in restricting use of force pre-submission. Id. Thus, he would accept the influence of human rights on the war with al Qaida to date, while making a principled stand against further encroachment. While this argument has some merit, it seems unlikely to gain sufficient traction to prevent expansion of the influence of human rights law.
- 42.
ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, (2004) I.C.J. Rep. 136.
- 43.
See Hakimi 2012 p. 2–3 (arguing that the distinction between armed conflict and non-armed conflict situations can be arbitrary leading to uncertainty).
- 44.
Professor Hakimi argues for a shift from the traditional method that separates law of war and human rights domains to a functional approach to detention and targeting questions that creates a common inquiry in conflicts with non-State actors, whether characterized as war or not. Id. p. 5–6.
- 45.
The 2011 National Defense Authorization Act reaffirms that wartime authorities should be used by the President in combating al Qaida, the Taliban and affiliated groups.
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Padmanabhan, V.M. (2012). Legacy of 9/11: Continuing the Humanization of Humanitarian Law. In: Schmitt, M., Arimatsu, L. (eds) Yearbook of International Humanitarian Law 2011 - Volume 14. Yearbook of International Humanitarian Law, vol 14. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-855-2_16
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