JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that despite recent disparaging comments by US Homeland Secretary Michael Chertoff, international law is also American law, and we must respect our obligations as citizens of the international community, not arbitrarily dismiss or avoid them so as to facilitate torture of detainees or other wrongful acts…
In a recent speech to the Federalist Society, US Homeland Security Secretary and formal federal judge Michael Chertoff said: "International law is being used as a rhetorical weapon against us,"
Chertoff cited members of the European Parliament in particular as harboring an "increasingly activist, left-wing and even elitist philosophy of law" at odds with American practices and interests. But he also said the same pattern could be seen in the policies of the United Nations and other international bodies.
"What we see here is a vision of international law that if taken aggressively would literally strike at the heart of some of our basic fundamental principals — separation of powers, respect for the Senate's ability to ratify treaties and … reject treaties," Chertoff said.
This speech of Secretary Chertoff is a very important for Americans to ponder because it highlights one of the key aspects of international law – horizontal enforcement: other states (and international bodies through which those states operate) pushing one state to comply with international law obligations as each of those states determine what those obligations are.
At the same time, what the vision of Secretary Chertoff simply does not appreciate is the internal capacity of American citizens to join with those external voices to insist on compliance by the United States with international law obligations. Or maybe, Secretary Chertoff is making an effort to create division between those Americans who support international law and non-Americans – appealing to nationalist sentiment in a hope of dividing and conquering. It is an old tactic.
It is important that internally we speak with great force about the need for the United States to comply with its obligations. We must have fire in our belly, as Justice Robert Jackson said in a speech to the American Society of International in 1945.
Key to Chertoff's vision is his limited sense of the Common Article 3 standard of detainee treatment under the Geneva Conventions. In international law, however, there is a wonderful rule that no state can avail itself of its internal law to extract itself from its international obligations.
Chertoff and the New Sovereigntists are seeking to subvert that rule to make United States internal law flow throughout the world as their unique vision of the only law that is to be respected.
Now, it is possible for state practice to evolve – and the United States may seek to make state practice evolve – so that torture, cruel inhuman and degrading treatment and other barbarities are considered fine in international law. However, it is also possible that Americans and foreigners and parts of the American government and foreign governments may resist such a development by pushing the United States to comply with the spirit and letter, object and purpose of its international law obligations.
We must resist Chertoff's vision, for in that vision the result is precisely what we fought our American Revolution to avoid – the individual being put at the mercy of an all powerful state controlled by an all powerful leader.
We can only hope that by continued pressure on our elected leaders, the bureaucracy, the Presidency and the courts we can help these persons understand that international law is OUR law and they as well as us are to comply with that law.
Thus, when Chertoff as head of the Criminal Division of Justice gave advice and comfort to torturers in other government agencies by agreeing that if certain harsh interrogation techniques were used then the Criminal Division would not prosecute, he should understand that as a matter of domestic (war crimes) and international law that was wrong.
But the domestic law doctrine of prosecutorial discretion which might be of avail in a domestic arena would be of no help to him in a prosecution on the international plane for aiding and abetting torture and cruel, inhuman and degrading treatment.
And a day of reckoning is coming. Chertoff should dare to travel to Europe.
Similarly the Military Commissions Act's attempt to pervert the Third and Fourth Geneva Convention is of no avail in extracting the United States from its international obligations.
Benjamin Davis is a professor at the University of Toledo College of Law
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