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Speaking Truth to Power: US International Lawyers at a Crossroads

JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that at its 100th annual meeting this week in Washington, DC, the American Society of International Law is being called upon to take a stand on the laws of war and occupation at a critical moment in the history of the Society, the United States, and the world...

This Wednesday, March 29, 2006, the American Society of International Law (ASIL) considers at its historic 100th annual meeting the adoption of a resolution on international law related to the laws of war and occupation. The texts of the original proposed resolution and an alternate proposal are available online.

At this critical juncture, the signers of the original resolution seek to reaffirm principles of the laws of armed conflict so as to promote the establishment and maintenance of international relations on the basis of law and justice. We reaffirm the right of self-defense of all states to demonstrate that the ASIL recognizes the important right of self-defense that is done consistent with international law.

We reaffirm directly the constraints on the United States of America in its conduct of armed conflict. This reaffirmation from within by an American learned society demonstrates to the world “leadership by example” by Americans speaking to America on American international legal obligations. In particular, we reaffirm the applicability to the United States of America of the four Geneva Conventions. We seek to provide some clarity as there has been far too much confusion and obfuscation about these bedrock rules.

Given recent experiences (we have seen the pictures), it seems obvious that a reaffirmation of rules concerning torture, cruel, inhuman and/or degrading treatment is essential at this time. In addition, we reaffirm the constraint on the United States and/or other states when they seek to do secret incommunicado detentions (whether prolonged, arbitrary, without International Committee of the Red Cross access, without court access, without safeguards, disappearances, non-Geneva Convention IV Article 5 compliant situations, International Covenant on Civil and Political Rights public emergency derogation measures that are not strictly required, etc.). We also focus on the constraints on the United States of America acting alone, acting in concert with other states, or other states to emphasize the continuing obligations on all states to protect human dignity through these bedrock principles that are the fundamental bases of civilization.

We all have in our memory persons who have been held in secret incommunicado detention in Chile, Argentina, Liberia, the Lao Gai in China, the Soviet Gulag, the Nazi era and noted that this violates basic human rights. This reaffirmation appears essential as we are only sketchily informed of Guantanamo practices, black sites in Eastern Europe, extraordinary renditions, and other secret incommunicado detentions. Trust is not enough.

Given the diverse opinions expressed by the three branches of government about what the international law obligations of the United States of America are during armed conflict, we felt it was important to focus the attention of all three branches on both constitutionl and international tribunal jurisprudence to help assist these branches in understanding how to comply with long-standing jurisprudence.

We reaffirm obligations for non-governmental actors under international law at at time of armed conflict(s) when traditional military and intelligence structures are partially or totally privatized. Our resolution draws attention to the obligations of non-state actors to not violate international law.

We feel it is important to reaffirm that command responsibility applies to the United States of America even in a time where traditional military and intelligence structures are partially or totally privatized. It appeared important, in the context of civilian run military and intelligence authority in the United States, to remind all concerned of their command responsibility – whether uniformed or not, whether subject to the Uniform Code of Military Justice or not - under international law. No one is above the law. We are not above our international law obligations no matter how we organize ourselves in armed conflict.

It appeared important to reaffirm – in the difficult task of balancing security and liberty – that the United States should not lose sight of or ignore its international law obligations (law of war, humanitarian law, human rights law, etc).

In sum, the original resolution reaffirms bedrock rules of international law focused primarily but not solely on the United States of America’s obligations and, by implication, reaffirms those principles to all other states.

All ASIL policy criteria for adoption of resolutions (fundamental importance, member information, no significant disagreement) are met.

Our resolution speaks clearly to the United States of America as the ASIL did in 1946 when it resolved, “That the American Society of International Law strongly favors a declaration by the United States Government of its acceptance of the jurisdiction of the International Court of Justice in the types of legal disputes enumerated in Article 36 of the statute of the Court.”

In 1946, at the height of United States power in the world, the ASIL was willing with courage to speak clearly to that power in the interest of preserving and enhancing the rule of law.

At this time we should have no less courage than our forbearers in speaking directly to the United States of America in reaffirming American international law obligations. The hallmark of the ASIL is tempered idealism. This is what is needed today.

By speaking clearly in this Centennial year to ourselves, we speak to our best selves – not our worst – and encourage the best selves of others in other countries through encouragement and implication. There can be no more important effort at this time.

[Afterword: March 30

On March 30, 2006, the American Society of International Law overwhelmingly adopted a resolution reaffirming bedrock international law rules as regards self-defense, the applicability to armed conflict of the Geneva Conventions and other international law, the law of armed conflict and occupation, torture, cruel inhuman or degrading treatment, prolonged secret incommunicado detentions, state responsibility, command responsibility, and the need to maintain security and liberty in a manner consistent with international law obligations.

The consensus on these rules was overwhelming among the largest gathering of the Society in its history. In the discussion, no one disagreed with the terms of the draft resolution – the question that arose was whether this was an appropriate occasion for the Society to adopt such an instrument. In its 100 year history, the Society had previously only adopted 3 resolutions.

The breadth of the resolution and the consensus on an international level as to its terms is a significant achievement. One of the key sources of evidence of international law under Article 38 of the Statute of the International Court of Justice is the writings of the most highly qualified publicists. While possibly very rare, such a resolution is evidence of such a broad consensus of highly qualified publicists that it serves as a bulwark against all those now and in the future who seek to undermine these rules. In that sense, the resolution marginalizes more peculiar readings of international law.]

Benjamin Davis is a professor at the University of Toledo College of Law

March 29, 2006

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