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US Fourth ICCPR Report, IHRL and IHL

Published on January 19, 2012        Author: 

The US Government recently submitted to the Human Rights Committee its fourth periodic report on its compliance with the ICCPR. On the issues near and dear to my heart – the extraterritorial application of the ICCPR and the relationship between IHRL and IHL – the new report presents a significant softening of the US position. Or, to be more precise, the report leaves the door open for a shift in the US position in the relatively near future (assuming, I imagine, that Obama manages to win re-election). Thus, paras. 504-505 of the report on extraterritoriality summarize the previous US position and those of the HRC and the ICJ, but do not contest the latter.  Paras. 506-507 on IHL are a bit more meaningful, and bear quoting in full:

506. With respect to the application of the Covenant and the international law of armed conflict (also referred to as international humanitarian law or “IHL”), the United States has not taken the position that the Covenant does not apply “in time of war.” Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of application. To cite but two obvious examples from among many, a State Party’s participation in a war would in no way excuse it from respecting and ensuring rights to have or adopt a religion or belief of one’s choice or the right and opportunity of every citizen to vote and to be elected at genuine periodic elections.

507. More complex issues arise with respect to the relevant body of law that determines whether a State’s actions in the actual conduct of an armed conflict comport with international law. Under the doctrine of lex specialis, the applicable rules for the protection of individuals and conduct of hostilities in armed conflict are typically found in international humanitarian law, including the Geneva Conventions of 1949, the Hague Regulations of 1907, and other international humanitarian law instruments, as well as in the customary international law of armed conflict. In this context, it is important to bear in mind that international human rights law and the law of armed conflict are in many respects complementary and mutually reinforcing. These two bodies of law contain many similar protections. For example prohibitions on torture and cruel treatment exist in both, and the drafters in each area have drawn from the other in developing aspects of new instruments; the Commentaries to Additional Protocol II to the Geneva Conventions make clear that a number of provisions in the Protocol were modeled on comparable provisions in the ICCPR. Determining the international law rule that applies to a particular action taken by a government in the context of an armed conflict is a fact-specific determination, which cannot be easily generalized, and raises especially complex issues in the context of non-international armed conflicts occurring within a State’s own territory.

Note how the US report has now started using the customary buzzwords of the IHL/IHRL project (‘complementary’, ‘mutually reinforcing’), while at the same time presenting its lex specialis argument in less drastic terms than before. The last sentence of para. 507 is particularly noteworthy, as the US now argues that the relationship between the two bodies of law requires a fact-specific determination in any given case, rather than just treating IHL as displacing IHRL wholesale, while it leaves room for complementary application particularly in times of internal armed conflict. (Note the construction ‘non-international armed conflicts occurring within a State’s own territory’, which is presumably meant to exclude cross-border NIACs of the sort that the US claims it is engaged in with Al-Qaeda).

We’ll see whether the US position will continute to evolve – but there is some reason here for optimism. The reference to lex specialis is still unfortunate, in my view, as that pithy Latin phrase has very little to teach on the interaction between norms (see more here, and in a more updated form in the last chapter of my book). In that regard, readers might also be interested in the debate between Gabor Rona and Jens Ohlin at Opinio Juris and Jens’ new blog, the LieberCode.

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3 Responses

  1. A welcomed development and radical shift from some of the ploys and false claims of the Bush-Cheney regime. Let’s not forget that the “universal” reach of U.N. Charter arts. 55(c) and 56 to promote “universal” respect for and observance of human rights (and to not violate them) applies without geographic or other contextual limitations and that Article 103 of the Charter mandates that such “universal” U.N. Charter obligations “prevail” over any inconsistent international agreement, be it a human rights agreement or a law of war agreement. See my remarks to commentary over at Opinio Juris.

  2. Readers here might note:
    A draft of my paper for the Feb. 2th symposium at Barry University School of Law in Orlando, FL is available for a free download at SSRN, at
    http://ssrn.com/abstract=1989099
    I am on the Torture and Accountability panel and the title of my draft paper is: The Bush-Cheney Legacy: Serial Torture and Forced Disappearance in Manifest Violation of Global Human Rights Law.
    An abstract states:
    This draft article focuses on nine false claims made during the Bush-Cheney Administration in an attempt to further an admitted “program” of “tough” interrogation tactics and secret detention that has actually served as a catalyst for reaffirmation of fundamental human rights and basic human protections under the laws of war. The article also identifies why there is a global reach of human rights law and obligations under the United Nations Charter, the International Covenant on Civil and Political Rights, and the Convention Against Torture. The article also provides an Appendix that sets forth a Torture Timeline 2001 – 2007 and addresses standards for criminal complicity that would be applicable concerning criminal or civil sanctions against members of the prior Administration who are clearly reasonably accused.

    [forthcoming, 18 Barry L. Rev. (2013)]
    The Bush-Cheney Legacy: Serial Torture and Forced Disappearance
    in Manifest Violation of Global Human Rights Law

    – Jordan J. Paust
    Introduction
    I. Rejection of Nine False Bush-Cheney Claims
    II. The Global Reach of Human Rights Law
    A. Global Reach Under the United Nations Charter
    B. Global Reach Under the International Covenant on Civil and Political Rights
    C. Global Reach Under the Convention Against Torture
    III. Relative and Absolute Human Rights of Persons
    IV. Deleterious Consequences of the Unlawful Program
    Conclusion
    Appendix: Torture Timeline September 2001 – 2007