A Project of the American Enterprise Institute and the Federalist Society

International Law Targets American Sovereignty

National Review

December 9, 2004

By Andrew C. McCarthy

It is high time for the American people to ask: Just what is international law? Is it a body of obligations, rooted in the principles of consent and comity that provides sovereign nations with a path toward avoiding provocation and bloodshed? Or is it a subversion by which foreign entities and their activist nongovernmental organizations trump democratic choices and sovereign self-determination?

The latest, but by no means the only, occasion for posing these questions is the leak to the New York Times last week of an internal U.S. government memorandum which relates an explosive charge by the International Committee of the Red Cross (ICRC) that the United States has employed interrogation methods that are "tantamount to torture" against foreign enemy combatants detained at Guantanamo Bay, Cuba. The weaseling use of tantamount to is no accident. It is meant to blur significant definitional lines--all the easier to force on the United States the ICRC's utopian vision of "binding" international law, and end-run the actually binding laws that the American people, through their own constitution, have enacted in pursuit of their own security.


Why tantamount to? Why not just accuse us of torture? Because even the Geneva-based ICRC--a once indispensable force for humanity which has sadly devolved over a half century into just another self-absorbed NGO--perceived the need to pull its punch. Concededly, the techniques the organization is said to have found--humiliation, solitary confinement, "temperature extremes" (which evidently means turning the air conditioning up high to cause discomfort to nude, or inadequately clothed, detainees), loud noise, bright lights, and use of forced positions--are unpleasant. But they do not come close to the severity of discomfort necessary to constitute actual torture. As it happens, there is binding international law on this subject, as well as U.S. domestic law. The former stems from an important treaty, the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (hereafter, "UNCAT"), which the U.S. ratified in 1994. The treaty defines torture as any act, done at the direction or with the knowing acquiescence of a public official, by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind. [Emphasis added.] U.S. domestic law is even more stringent. It brands as "torture" (under Section 2340 of Title 18, U.S. Code) any act by an official that is "specifically intended to inflict severe physical or mental pain or suffering...upon another person within his custody or physical control" (emphasis added).

In other words, unlike the UNCAT, a person can be guilty of torture under U.S. law even without proof that his abusive act was motivated by a purpose to obtain information, to punish, or to intimidate. Still, however, the pain inflicted must be extreme before any discussion of torture is triggered. A person convicted of torture in this country--as opposed to in, say, Switzerland--may be imprisoned for 20 years, or, if the victim dies, may receive the death penalty or a life sentence. That is because the abuse of human life, even if the human life happens to belong to a terrorist, is considered serious business in the United States--too serious for grave terms like torture to be tossed about cavalierly by unaccountable propagandists at the ICRC.


It is frequently argued that some latitude in the matter of interrogating detainees is appropriate in the so-called "war on terror"--a confrontation against barbarians who make a mockery of the civilizing impulses behind international law, and which puts a premium on intelligence-gathering to prevent mass civilian slaughter. As I have contended more expansively here and elsewhere, a new legal paradigm is urgently needed for handling matters such as detention and interrogation, sensibly balancing national-security imperatives with due process principles. We must, however, face the uncomfortable fact that the reason we need a new paradigm is that the old one still exists. Where we have given our word, we are honor-bound to adhere to established strictures. But, crucially, only to the extent we have actually consented to do so. That includes in treaties, such as the UNCAT. With respect to it, the U.S. solemnly accepted not only the afore-described sweeping proscription against torture, but also the UNCAT provision abiding absolutely no exceptions--even if, say, the non-lethal infliction of severe pain might induce a captured terrorist to reveal details needed to prevent the imminent detonation of a nuclear device in New York Harbor. As the UNCAT puts it: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." Manifestly, this high-minded guideline did not anticipate modern terrorism, particularly terrorists armed with weapons of mass destruction. Nonetheless, we did agree to it. If we no longer do, we should forthrightly say so, explain why, and change our laws. We shouldn't try to lawyer our way out of our agreements. All that said, though, we did not agree to everything in the UNCAT. This brings to the fore why it is becoming increasingly necessary to be skeptical when "international law" is invoked by interest-group NGO's like the ICRC--as well as by many European capitals, the Organization of Islamic States, the Non-Aligned Movement, U.N. Secretary General Kofi Annan, the New York Times, American legal elites, and other trailblazing members of the self-styled "international community." This global village's idealized vision of U.S. obligations is often importantly different from our actual obligations.


How can that be? It stems from organic differences in lawmaking. With international law, saying with certainty what a nation's duties are is an elusive proposition. This is because while written agreements--treaties, conventions, and other formal, multilateral compacts--may be the backbone of international law, they do not constitute the entire corpus. Rather, they are supplemented (or, confusingly at times, contradicted) by: (a) what are claimed to be "customary" principles and rules that may not be written down but are said to reflect universal understandings; (b) principles expressed in multi-lateral treaties and protocols even if they have not been ratified by all states; (c) tracts written by specialists in various areas of international concern; (d) opinions and resolutions issued by international bodies; and (e) judicial decisions by international tribunals. The problems this presents are manifold. In reality, there are very few immutable, universal understandings down here on Planet Earth. The condemnation of genocide may be one (although you'd never know it from watching the U.N. dither over Darfur), but the condemnation of, for example, global warming certainly is not one--even if it has become a popular fetish to fret about greenhouse gases. Yet, because the international community has sold the world on the notion that its law is largely uncodified, and that even the written parts are "evolving," there is abundant opportunity for mischief. Cabals of self-interested countries, NGOs, scholars and, of course, "international law experts," convene. They announce some agenda-driven set of euphonious aspirations, and repeat them over and over again. Soon these aspirations, transmogrified into principles, begin to seep into the mainstream editorial pages or, increasingly, federal judicial opinions. Voila, you have a claim that "international law," binding on Americans, has been created. Ditto when the U.N. General Assembly (where the despots and dysfunctionals vastly outnumber the free and self-determining nations) stirs itself to spew some warped enactment, or the U.N.'s International Court of Justice issues a ruling in some obscure legal proceeding. While it risks banishment from polite company, and certainly from American campuses, to observe such a thing, it is necessary to point out that no one in the United States voted for any of these people. Nor did we consent to be generally bound by their assertions of law, the precedents developed in their tribunals, or the pieties divined by their experts. The international community may insist that we are under the sway of its airy customs and principles, but we are not except to the extent we consent to be, in a manner consistent with the American constitutional order. In the United States, we adhere to strict limitations on the applicability of international law. The global village may perceive many wrongs, but under our constitution, offenses against the "Law of Nations" are limited in Article I, Section 8, to what Congress chooses to define and punish. More significantly for present purposes, the president is empowered, in Article II, Section 2, to enter treaties, but such agreements govern in the U.S. only after Congress weighs them, and only to the extent Congress consents to them.


This is critical to understanding what the ICRC is trying to do here. The UNCAT does not just govern torture. Its drafters well understood that there are forms of abuse--much like what the ICRC reports having found at Guantanamo Bay--that, while falling well short of torture, so revolt myopic humanitarian activists that they can conceive of no circumstances (like obtaining intelligence that might save the lives of thousands of moral innocents) in which resort to them would be warranted. So they went on to require each UNCAT signatory state to "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman, or degrading treatment or punishment" even if they are not so severe as to "amount to torture[.]" (Emphasis added.) This is where the ICRC's "tantamount to torture" charge comes from: in the organization's view, because the treaty as written puts "degrading" treatment on a par with "torture," the ICRC is free to label such treatment as if it were torture even if it results in no pain, let alone severe pain. Not so fast. It bears observing that the United States did not recklessly rush aboard the UNCAT. A full decade elapsed between the treaty's promulgation and our nation's ratification of it. Among the hold-ups was precisely this concern: was liability for "torture" being drastically enhanced by the inclusion of conduct defined by such subjective and unsettled terms as "cruel, inhuman, and degrading"? In Europe, for example, the death penalty is thought to be "cruel and inhuman." And who is to say what the limits of "degrading" may be? This profoundly worried Congress. Thus, while it eventually ratified the treaty, it insisted on stringent caveats, expressly preserving capital punishment, and generally limiting our acceptance of the proscription against "cruel, inhuman, or degrading treatment or punishment" to the relevant understandings already enshrined in American law through the jurisprudence of the "Fifth, Eighth, and/or Fourteenth Amendments to the Constitution." These were significant limitations. The Eighth Amendment bars "cruel and unusual punishments." American courts have limited its application to judicial proceedings--essentially, to the penalties meted out after conviction for a crime. It has never been thought to extend to aliens who do not have Bill of Rights protections, much less to foreign enemy combatants captured overseas and detained by the military in wartime. Similarly, aliens have no generalized claim to Fifth and Fourteenth Amendment rights, and even if they did, the relevant guarantee of due process of law ensures, literally, only the process that is due under the unique factual circumstances. It is simply not the law of the United States that a foreign terrorist, with no entitlement to Geneva Convention protections, captured by the military during hostilities, has a due process right not to be subjected during interrogation to harsh treatment that falls short of torture. What the ICRC purports to do here is compel Americans to accept the expansive construction of the UNCAT that has been adopted by the ICRC (as well as most of the international community) rather than the one ratified by the United States under our constitution. The organization's theory is that, regardless of what U.S. law may say, the treaty as originally written--i.e., absent Congress's caveats without which the U.S. would not have ratified the UNCAT at all--has come to reflect customary international law and is therefore, by the ICRC's lights, binding on the American people.


This offensive use of international law to chip away at sovereignty and democratic self-determination, especially in the U.S., is not merely an ICRC gambit. As just the last few months demonstrate, it is a wider and more perilous trend. In November, for example, federal District Judge James Robertson, in Washington, D.C., boldly extended prisoner-of-war safeguards to al Qaeda operative Salim Ahmed Hamdan (reputed to be Osama bin Laden's driver) who is also held in

Guantanamo Bay. To do so, the judge not only had to rewrite the Geneva Conventions into something vastly different from the treaty ratified by the United States in 1949; he also had to ignore that the U.S. has considered and has for over a quarter-century expressly refused to ratify a treaty (the 1977 Protocol I to the Geneva Conventions) that would grant POW protections to non-state militias. Judge Robertson, whose decision is being appealed, may well believe the U.S. should have a POW treaty with beasts who, far from shining lights in the eyes of their captives, tend to behead them. We, however, have resolutely declined, it would be a delusion to think we would ever democratically adopt one, and the notion that such an agreement was actually contained in the third Geneva Convention but simply escaped everyone's notice for the last 55 years is untenable. In our system, moreover, the conduct of international relations is predominantly a political process, not a legal one. Under our constitution, the role of the U.S. courts is to apply international law to the extent it is adopted by the political branches consistent with the elaborate procedures of Articles I and II. It is not to impose on the American people by judicial fiat novel international obligations which, as Protocol I illustrates, they never would have agreed to had such duties been squarely proposed. The Hamdan court, nevertheless, felt free to ignore the U.S. constitutional procedure in favor of such authoritative sources as "general international understandings" and a decision of the International Court of Justice (ICJ). The ICJ does indeed see itself as the final arbiter of what international law dictates. It is staffed by jurists from such bastions of freedom, justice and human rights as China, Russia, Egypt, Jordan, and Sierra Leone. In an outrageous and much trumpeted ruling this summer, it decreed that Israel's security fence--which has stanched suicide terrorism and saved both Israeli and Palestinian lives--is actually a violation of international law. In so doing, the ICJ reasoned that acts of even passive self-defense are illegal unless there has been a first-strike attack against one country by another country. The ruling not only radically rewrites the United Nations Charter (i.e., the treaty whose terms, as originally understood, we agreed to in 1948), but its logic would render as violations of international law, for example, U.S. military operations against al Qaeda, and any U.S. pre-emptive strike against an enemy (whether a rogue nation or a terror network) that was readying a WMD attack against us. Not surprisingly, it was not long after the ruling that the ever-dependable Kofi Annan dutifully pronounced that the U.S. had violated international law by deposing Saddam Hussein. Thus used, international law portends breathtaking derogations of sovereignty, self-determination, and democracy. Its proponents couch their impositions in the loftiest of inspirational rhetoric, cleverly casting naysayers as the enemies of justice and human dignity. But this is a wolf in sheep's clothing. For the sake of our security and authority to forge our own national destiny, we must begin to push back. --

Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.

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