What is the Role of International Human Rights in the War on Terror?
University of St. Thomas School of Law (Minnesota)
University of California at Berkeley School of Law
DePaul Law Review, Forthcoming
U of St. Thomas Legal Studies Research Paper No. 10-16
UC Berkeley Public Law Research Paper No. 1595148
What role, if any, does international human rights law (IHRL) have to play in situations of armed conflict? More specifically, does IHRL have any application to the conduct of the “war on terror”? More specifically still, does IHRL partly or wholly displace the traditional law of armed conflict (LOAC) - as embodied, for instance, in the Hague and Geneva Conventions - in regulating the armed conflict that arises in the “war on terror”?
We focus in this Article on the last of these questions. To sharpen the discussion, we concentrate on the applicability of the1966 International Covenant on Civil and Political Rights (ICCPR) to the conduct of hostilities in the “war on terror.” More narrowly still, we will consider the applicability of ICCPR Article 6(1) - which guarantees that “[n]o one shall be arbitrarily deprived of his life” - to combat operations in the “war on terror” by U.S. Armed Forces outside the United States.
One advantage of this specific focus is that it will enable us to examine, within the brief compass of this Article, the legality of the United States’ use of unmanned Predator drone missiles to kill suspected al Qaeda targets, such as the incident involving the killing in Yemen on November 3, 2002 of Qaed Salim Sinan al-Harethi - reputedly a senior al Qaeda operative - while he was traveling with five companions in a car. Citing the ICCPR, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions took the position that the attack constituted a clear case of extrajudicial killing. The United States, in reply, maintained that the ICCPR had no application to the incident on the grounds that “[t]he conduct of a government in legitimate military operations, whether against al Qaida operatives or any other legitimate military target, would be governed by the international law of armed conflict,” rather than by IHRL. The Obama Administration has continued the practice of using missiles to target and kill suspected al Qaeda and Taliban figures. It is reported that unmanned drones have become among the U.S. military’s favorite weapons in the conflicts in Iraq and Afghanistan - including for use in targeting suspected terrorist compounds - and the Obama Administration is said to be preparing a budgetary request for the development of new drone systems.
In Part II, we survey the origins and growth of the LOAC and IHRL, and we discuss the beginnings of their asserted “convergence.” In Part III.A, we restate and defend the traditional view that the LOAC and IHRL fundamentally differ in their scope, purposes, and protective concerns. Then, in Part III.B, we argue that the ICCPR, in particular, was not intended, and should not be understood, to regulate the conduct of armed conflicts that are otherwise governed by the LOAC. In Part III.C, we address certain objections that have been raised against this construction of the ICCPR. Finally, in Part IV, we apply the results we have reached to the controversy over the incident involving Qaed Salim Sinan al-Harethi.