The analysis thus far grants that the legal right of state self-defense is a right that in certain instances functions as a justification for a state to use force against an aggressor (i.e., a state, group, or person), and one of my conclusions is that until important modifications to the policies are made that help meet
Alexander, “Self-Defense and the Killing of Noncombatants: A Reply to Fullinwider,” in Charles R. Beitz, Marshall Cohen, Thomas Scanlon, and A. John Simmons (eds.),Interna- tional Ethics(1985),102,105.
28See George I. Mavrodes, “Conventions and the Morality of War,”International Ethics,75–89.
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the requirements of the due diligence limitation, the policies at Guant´anamo Bay fail to be justified according to this right of self-defense.
I imagine, however, that some people might question whether it is even reasonable to describe the policies associated with indefinite detention at Guant´anamo Bay as an act of, or as contributing to an act of, self-defense. One might argue that the length of time the policies have been in place (almost eight years from what some consider the initial attacks of September11,2001), as well as the number and diversity of the persons being detained suggest that the policies are not amenable to a self-defense analysis.
I doubt that a self-defense analysis is inapplicable due to either the length of implementation of the policies or the makeup of the persons being targeted.
Although it might be thought now that because the initial attack was so long ago, the alleged use of force in response can no longer be properly connected to, or described as, a response to that initial aggression, it can also reasonably be the case that the initial attack was a “wake-up” call that exposed a real and sufficient threat that is still ongoing, even nearly eight years later. As stated earlier in discussing the immediacy limitation, there appears to be good evidence that a real and sufficient threat of harm similar to that which occurred in the attacks of September11,2001, still exists. When such threats are ongoing, state policies designed to thwart those threats can be reasonably subject to a self-defense analysis. Even if in the end those policies fail to be justified in accordance with self-defense, the analysis is applicable.
Also, although the diversity of the persons being targeted and detained may cause some confusion, this diversity does not indicate that a self-defense analysis is irrelevant or not helpful in discovering whether there are any justi- fications that can be properly invoked. Even if the diversity of persons being targeted by the policies makes the actions of the United States look more like a police action than a war, many police actions and policies are certainly analyzable according to whether they are justified on grounds of self-defense.
If the action or policy of the police (here the United States) does not look like one that is attempting to thwart directly a real and immediate threat of aggression, then the action or policy will have to be justified for reasons other than self-defense. To be sure, some police actions are preventative rather than defensive. Nonetheless, the analysis of self-defense can be used to discover whether the action or actions stemming from a policy is more preventative than defensive. At Guant´anamo Bay, as well as with police actions or policies in general, if it turns out after analysis that it would be mistaken to invoke the justification self-defense (e.g., because the policy looks more preventative than defensive), then the United States would need to look elsewhere for justifications that support its policies related to indefinite detention. In
On State Self-Defense and Guant ´anamo Bay 175 addition to determining whether the United States could properly invoke a moral right rather than a legal right of self-defense, I briefly analyze some of these other justifications that the United States might offer.
It does not look like there are any other legal justifications that the United States could properly invoke as a justification. In international law, it is gen- erally accepted that a state may use force for two reasons. It can use force in self-defense, or it can use force in accordance with Chapter VII of the UN Charter, which essentially means that a state may use force if authorized by the UN Security Council.29 I have rejected the former reason, and it is doubtful that Chapter VII is of any use to the United States. Possibly, someday, the UN could adopt a resolution affirming the policy of indefinitely detaining mem- bers of al Qaeda, because al Qaeda is considered a world threat that requires special treatment outside of a criminal court. This resolution certainly has not happened yet, and it is highly doubtful that it ever will. It is not at all likely that the UN Security Council would ever vote for a resolution that allowed one state to detain only foreign citizens indefinitely and without a trial.
Although more complicated, there may be another legally permissible way in which a state may use force in accordance with international law. This other way, which might be put forth by a creative lawyer, is to attempt to fit the policy under an exception to the prohibition on the use of force that may have been created when Israel was allowed to try Adolf Eichmann after a covert operation in which they grabbed him from Argentina in1960. One might argue that this at least partial acquiescence by many states and the UN Security Council (i.e., allowing Israel without any penalties to grab Eichmann from Argentina and put him on trial) set a legal precedent for an exception to the use of force to capture and detain a person who has engaged in, or who has contributed to, international crimes.
I highly doubt that this “Eichmann exception” will work. One important dif- ference between the Eichmann case and Guant´anamo Bay is that Eichmann was given a trial. Most detainees are not given a trial. Another important dif- ference is that the search for suspected terrorists is worldwide and importantly includes imprisonment without a trial for acts that they have not yet committed.
Unlike the Eichmann apprehension, the policy of indefinite imprisonment is
29There may be a third way related to humanitarian intervention without UN approval. But, I leave this legal “way” out for two reasons. First, it is very controversial whether humanitarian intervention is legally permissible without UN authorization under Chapter VII of the UN Charter, and second, apprehending individuals who may commit terrorist attacks simply does not look like the kind of circumstance that has given way in the past to the label of a humanitarian action nor does it seem a plausible description.
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not about one person who is living in one state and who quite clearly violated international laws in the past. It is not likely that any acquiescence by states in the Eichmann apprehension and trial could provide sufficient international legal support to justify the U.S. policies at Guant´anamo Bay.
As there are no legal justifications, are there any moral justifications? Some- what ironically, if there would be, then what the United States would be doing with its policy of indefinite imprisonment could be viewed as something akin to civil disobedience in a domestic legal system.30At Guant´anamo Bay, the United States would be breaking international laws for the “right” or moral reasons, possibly to include getting the law changed. I briefly provide reasons for dismissing three different attempts to justify morally the policy of indefinite imprisonment at Guant´anamo Bay.
First, it could be argued that, regardless of any legal right of self-defense, the United States has a moral right of self-defense, and the United States is acting in accordance with this moral right at Guant´anamo. No doubt there are difficulties with claiming that a state rather than a person has a moral right of self-defense.31Yet, if a state can have a moral right, for instance, because it maintains high moral standards with regard to its own citizens and as a result it has a moral right to defend its citizens and that political and legal way of life against unjust aggression, then the United States might possess such a right.
However, even if the United States could meet the criteria necessary to possess a moral right of self-defense, it is not likely that this moral right would justify the kinds of actions that I argued should not be considered justified under an international legal right of self-defense. I argued earlier that the legal right of self-defense should contain the due diligence limitation because it, or something like it, is required by any right of self-defense, including a personal right which is a moral right, and more importantly, it is the moral right after which the state right is modeled. In other words, in Section II, it was the moral right of self-defense that was used to include the due diligence limitation into the legal right. It would be difficult, and more likely misguided, to think that a moral right of state self-defense would not also contain the due diligence limitation or something very similar to it.
Second, someone might argue that the policies at Guant´anamo Bay are morally justified for reasons relating to punishment. Members of al Qaeda have committed terrible acts. They are likely to commit more such acts.
As a result, they ought to be punished. Certainly, Rumsfeld’s and Cheney’s
30That is, if the due diligence limitation is accepted as being a part of international law relating to self-defense.
31On the absence of any moral foundation for a right of state self-defense, see David Rodin (2002).
On State Self-Defense and Guant ´anamo Bay 177 comments stated at the outset give this impression. They openly claim that all detainees are bad people planning to do bad things and that it is right to imprison these terrible people.
Of course, any moral reason for indefinite imprisonment that is related to punishment would be misguided. Any sufficient theory of punishment would include the conditions or requirements of the due diligence limitation, if not something greater (i.e., more restrictive) than the due diligence limitation.
The conditions or standards of care articulated by the due diligence limitation and applicable to self-defense are normally considered to be easier or lower standards of care to meet than would be imposed on a government that under- takes the job of punishment. From an epistemic standpoint or burden, it is often considered much easier to justify acts of self-defense than punishment.
To be justified under self-defense, it is likely that a state should have to meet an evidentiary standard like “a preponderance of the evidence” or standard such as, “it is more likely than not” that the person being targeted is an aggressor.
For the state to take on punishing a person, in contrast, the state would have an increased evidentiary burden, something more like “beyond a reasonable doubt.” If the policy of indefinite imprisonment cannot meet the epistemic obligations necessary for self-defense, it should not be thought to meet the tougher epistemic obligations normally applicable to punishment.
Finally, there is the consequentialist moral justification that the policy is likely, overall and in the long run, to produce more good than harm. One of the objectives I had in my reply to the third objection in Section III was to separate this kind of claim from a claim that an act is justified as an act of self-defense. It would be a confusion to put this kind of consequentialist reasoning within or under the justification of self-defense. Now, I will respond more directly to this consequentialist claim. Although I concede that it would be difficult to figure out whether the policy does or will result in more good than harm or will likely promote the best consequences overall and in the long run, I provide two reasons why this kind of moral justification appears misplaced.
The first reason is that this kind of reasoning is quite clearly rejected in similar circumstances in domestic legal systems, including in the United States. At the domestic level, this kind of consequentialist moral reasoning is either thought inappropriate when dealing with putting a person in prison for years, decades, or possibly for life or it is thought to justify the view that alleged murders and suspected criminals are to be given a trial. The fact that exceptions to criminal procedures are rare in most domestic legal systems and that detainees that are U.S. citizens are not now put in prison at Guant´anamo Bay but are given a trial suggests that many, if not most, people think persons
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have basic rights (legal and moral) that are not to be violated in any process leading to incarceration and that these rights either form a moral barrier to this kind of consequentialist justification in these cases or, at the very least, coincide with the best consequentialist view of how to go about imprisoning people who are suspected of harming people or who may attempt to harm people.
The second reason is that, although it may be difficult to determine what the overall good and harm is, or will be, it is not too difficult to determine that the current U.S. policy of indefinite imprisonment is harming rather than pro- moting an international community that enforces and fosters respect for basic human rights. The overwhelming international opinion is that Guant´anamo Bay ought to be closed and the U.S. policy of indefinite imprisonment stopped.
It is likely that this negative opinion will have adverse affects on any overall good that the policy could have. The obvious international rejection of the policy is an important limiting factor on how much good the policy can be said to generate. Although the opinion of other states and citizens may not always be a significant factor in determining whether a policy is morally justified, it should be considered a significant factor when the moral justification being appealed to is a consequentialist one and thus one that must calculate what the effects of the policy are and will be. A consequentialist account of the policy cannot ignore the strength of current international opinion and the continued international pressure to close Guant´anamo Bay. This opposition is at odds with creating a secure and effective international community, which lacks an international sovereign and thus is largely based on the trust and cooperation of its members.
CONCLUSION
The United States has relied on the international legal right of self-defense to justify its policies at Guant´anamo Bay associated with indefinite detention.
Like other states, one reason that the United States relies heavily on this legal right is because this right carries weight with other states. A right of state self-defense is thought to be an important attribute of statehood. Also, most states attach a strong moral value to this international legal right. For most people, this state right, which legitimizes the use of force for the defense of one’s neighbors, communities, or political or cultural “way of life,” is thought to be a fundamental right necessary for living a moral or good life, or at least it is thought to be inextricably tied toward striving for such a life. Because of the strength of the value placed on this legal right (whatever its source), as well as its nearly universal acceptance, a proper invocation of this right often results in the abdication of substantial legal and moral responsibility. A proper
On State Self-Defense and Guant ´anamo Bay 179 invocation legitimizes violence against states, groups, or persons, including the detention of persons. Yet, U.S. reliance on a right of state self-defense in this instance is mistaken. The policies at Guant´anamo are inadequate. The policies implemented at Guant´anamo Bay reveal that self-defense is not a concept and justification that can be invoked every time that a state seeks to use violence to improve its position, power, or stature or merely every time it attempts to safeguard its citizens. Rather, self-defense only functions as a justification when the actions of the defender adhere to certain limitations. In addition to the immediacy, necessity, and proportionality limitations, the U.S. actions at Guant´anamo Bay should meet the due diligence limitation. This fourth limitation should be properly incorporated into international laws pertaining to self-defense because it is crucial in many cases for distinguishing between force used by a state that is merely an attempt to make future conditions better for that state from force that is a response to aggression and attempts to target the aggressor or a reasonably believable threat. The due diligence limitation thus ensures that any responsive use of force is a “defensive” use of force in the proper sense of the word given the current concept of self-defense and how this concept functions as a justification for the abdication of substantial moral and legal responsibility.
Guant´anamo Bay is, as the former Prime Minister of Great Britain Tony Blair called it, an “anomaly.”32It is an anomaly for many reasons. One reason is the U.S. failure to adhere simply to the basic requirements of the due diligence limitation. Not only is it difficult to find the policy of indefinite imprisonment justified for legal reasons, it is difficult to see how the policy can be morally justified. Rather, to most, it looks as though the United States is attempting to implement a policy that may or may not be good for its own citizens and is clearly not regarded as good for (and by) the rest of the world. If this perception is true, then the policy’s legal and moral worth is lacking.
32See “Powell urges Guant´anamo closure,” as reported by BBC news on June11,2007and as seen at http://news.bbc.co.uk/2/hi/americas/6739745.stm (accessed June16,2008).
9 Politicizing Human Rights (Using International Law) Anat Biletzki
Human rights – in theory, discourse, and praxis – may be questioned as to their political nature; one instinctive answer claims that politics is the natural home of the human rights endeavor, whereas a more standard and institutional reply insists that human rights are, almost by definition, apolitical. This latter option usually turns to international law as the underpinning of human rights, presupposing thereby that law itself is, indeed, apolitical.1The former, seem- ingly more natural, stance may also recognize the essential nonpartisan aura of human rights but still maintain their usefulness for political agendas. The following exercise is an attempt to meld together these opposing positions on human rights by, on the one hand, acquiescing to their politicality but, on the other hand, locating it precisely – even if not only – in the use of international law. In a sense, we are putting our foot down in the human-rights-are-political camp; the surprising element here is the justified exploitation of international human rights, humanitarian, and criminal law for such political purposes.
Because, however, the tension between the political and the universal (i.e., the apolitical) cannot be shrugged off, especially not by human rights workers and organizations themselves, we suggest a philosophical angle to mitigate it:
Using the constructs of “identity” and “victim” to identify both the political and the universal, and their simultaneous presence in human rights, can lead to a different understanding of the political workings of human rights based on international law.
1The sense in which the law is “political” has been the object of discussion in legal scholarship, which is relevant to this article but only, sadly, when carried out in the ivory tower. Our purpose here is to bring that politicality, which is recognized analytically, to bear on human rights discourse and praxis, rather than just theory.
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