The New Globalization: How the U.S. and the U.K. May Hide Behind the United Nations When Violating Their Own Citizens' Rights In Iraq

Though it is plain that legal practice is becoming increasingly globalized, lawyers and scholars -- especially in the field of public law -- have been slow to catch up with globalization's emerging problems. In the U.S., for example, attorneys have remained largely entangled in rather parochial disputes about when and how the citation of non-U.S. law in U.S. courts is permissible.

While such disputes do matter - for instance, in death penalty jurisprudence, there is an important legal issue that this narrow focus leaves out - one with profound implications for constitutional and human rights. This issue concerns the push to displace claims of constitutional right from domestic courts into international forums--even where those forums can provide no satisfactory remedy. With the increasing emergence of transnational regulatory regimes, this issue is becoming all the more crucial, and is currently being litigated with respect to the detentions in Iraq of both U.S. and U.K. citizens.

Displacement of Local Legal Regimes by International Treaties and Agreements

Treaties creating the United Nations and the North American Free Trade Agreement (NAFTA), for example, displace both law-making and adjudicative authority, moving it out of national, domestic bodies and into international forums. NAFTA, for example, allows supranational review of U.S. judgments.

As Professor Henry Monaghan observes in a recent article about NAFTA and the International Court of Justice, some displacement to such supranational bodies can be justified by looking to the historical usage of international arbitration panels. But as Monaghan observes, many of these cases can be assimilated into the "public rights" doctrine, which only applies in a limited category of cases. In other contexts where individual liberty is at issue, such as in criminal trials, the Supreme Court has given supranational forums only "respectful consideration."

Cases Relating to the Detention of Iraqis Raise The Issue of Substituting International Forums for Domestic Forums

Unfortunately, the potential for the displacement of local courts' jurisdiction arises in situations where the elementary basic human right of liberty from unlawful detention is at stake. And governments--even America's present, UN-phobic Bush Administration--have not hesitated to use international entanglements as a back-door way to evade local judicial supervision.

Recent cases in American and British courts, concerning the detention of U.S. and U.K. citizens in Iraq by their respective countries' militaries, present this issue in sharp relief. (Full disclosure: I am counsel in two of the U.S. cases.) These cases raise the question of when, and whether, a government can escape its domestic human rights obligations by invoking an international façade. They also illustrate the extent to which international bodies such as the U.N. may act not as a force for promoting human rights, but as an actual hindrance to human rights enforcement.

Even in cases of battlefield detention, domestic law on due process protection raises particularly important questions. We generally assume that battlefield conduct, including the handling of prisoners, is regulated by international law--most famously, the 1949 Geneva Conventions and the 1907 Hague Regulations. But the fourth Geneva Convention, which governs the protection of civilians, stipulates that citizens of the capturing state (or of a state with which the capturing state has diplomatic relations) do not benefit from the protections set in the Convention.

Therefore, for citizens of the U.S. who are held by the U.S., but are not POWs, Geneva makes domestic law the principal guide to prisoner treatment.

The British Case Regarding a U.K. Citizen Detained in Iraq

Within America, domestic courts are still struggling with what it means to shelter citizens swept up in a battlefield detention. Meanwhile, governments are focusing on the multinational nature of most current military operations to support their arguments that domestic forums are not the place for adjudication of citizens' rights.

This has been true both in the U.K. and the U.S. Consider first the British case, al-Jedda v. Secretary of State for Defense. Al-Jedda is a British citizen of Iraqi descent who has been detained in Basra, Iraq, by British forces. Through his U.K. lawyers, al-Jedda filed a petition for judicial review and a habeas corpus petition challenging his detention. Both are still winding their way through the British courts. Yet already, the U.K. government's defensive strategy is clear--and revealing.

Al-Jedda has argued that he had a right to a hearing in a British court. In support of his claim, he cites both Article 5(1) of the European Convention on Human Rights' protection of due process, as incorporated into British law by the 1998 Human Rights Act, and the common law right to a hearing regarding the grounds of one's detention.

Against these claims, the British Secretary of State argued that the U.N. Security Council resolutions beginning in October 2003 displaced both the European human rights and the common law protections of bodily liberty. The British Government focused on Article 103 of the U.N. Charter, which states that in a conflict between a treaty and the Charter, "obligations under the … Charter shall prevail."

Reasoning that the U.K.'s military operations in Iraq were an exercise of such an "obligation," the intermediate appeals court in the U.K. accepted the Secretary of State's argument for displacement, and rejected al-Jedda's request for judicial review.

Two U.S. Federal Cases Regarding U.S. Citizens Detained in Iraq

Two cases arising in U.S. federal court -- Omar v. Geren and Munaf v. Geren -- raise similar issues. Both concern U.S. citizens detained by U.S. forces in Iraq. In both cases, the government argues that the multinational character of the detention precludes any federal court jurisdiction.

But the U.S. government's argument has differed from the U.K. government's theory. At stake in the U.S. cases are domestic constitutional rights, rather than human rights under a transnational treaty such as the European Convention. Article 103 of the U.N. Convention, therefore, has less traction in the U.S. cases than in the U.K. case. Rather, the U.S. government argued from first principles in the U.S. cases that federal courts cannot exercise supervision over the actions of U.S. troops acting as parts of a multinational operation.

In support of this rather surprising proposition, the government relied on an obscure 1949 Supreme Court per curiam decision, Hirota v. MacArthur. In Hirota, the Court dismissed a petition for collateral review of an international war crimes tribunal's final criminal judgment. The petition had been filed by Japan's former prime minister and foreign minister.

Although the U.S. government relies on a quite different theory of jurisdiction-ousting than the U.K. government, the nub of the two arguments is the same: The U.N. Security Council has authorized the domestic government's actions. Therefore, no domestic court can scrutinize what we do.

The Risk of the "International Immunity" Principle Leading to Serious Abuses - and Not Just With Respect to Detainees

Whether or not this argument succeeds, it raises the specter of international law becoming a scrim behind which all kind of human rights abuses can happen unhindered.

There is, of course, no reason that this principle of international immunity should be limited to a military context. Take, for example, U.N. Security Council Resolution 1373, which requires all members of that body, among other things, to enact new counter-terrorism laws.

As superlative recent work by Professor Kim Lane Scheppele demonstrates, Resolution 1373 has had a remarkably high compliance rate: Countries are falling all over themselves to enact new and harsher anti-terrorism laws. And because governments can claim that these laws are required by the U.N., they have a potent shield against accusation of human rights violations that happen as a result of the enforcement of these laws.

The Answer Is Not Isolationism - But Rather An Emphasis on Preserving Domestic Constitutional Rights

To be clear, these cases, and the difficult issues they raise, do not counsel in favor of isolationism. America will be part of (and, I hope, a leader in) international organizations that press for the global rule of law for the foreseeable future.

But these cases do counsel in favor of renewed vigilance. Many have seen international rights protections as simply another level of protection, superadded on top of domestic rights protections. Yet now, supranational bodies such as the U.N. Security Council - rather than acting to preserve rights - are licensing new military and police responses to transnational threats such as terrorism, and thus potentially imperiling rights. At the same time, they are imperiling the traditional domestic judicial forums that we have relied on for generations to protect human rights.

These forums are no less - and perhaps even more - crucial today than they were in the past. In all of the cases I have discussed in this column, for example, there simply is no international venue to pass on the serious liberty claims at stake in each case. Thus, if rights are to be vindicated at all, it must happen in a domestic court. Citizens of the U.K. and U.S., as well as other nations, deserve to have their claims that their own governments have violated their basic rights adjudicated under the laws, and in the courts, of their own countries.