More than 12 years after the United States launched its global war on terrorism, testing the outer limits of international law, many of America’s allies are seeking to turn back the clock to a time when targeted killings, clandestine prisons, and domestic spying were more frequently associated with rogue states than with the leader of the free world.
Here at the United Nations, foreign powers, U.N. agencies, and experts have sought to limit American espionage, impose new constraints on the use lethal drone strikes, and grant new rights for detainees locked up in the war on terror. The campaign is unfolding in obscure U.N. committees that deal with human rights, Internet governance, and other international legal issues. Increasingly, a key goal has been to impose limits on Washington’s ability to act beyond its own borders.
"The unipolar moment is over," said Antonio Patriota, Brazil’s U.N. ambassador, who has joined forces with his German counterpart, Peter Wittig, to push a General Assembly resolution aimed at checking the National Security Agency’s sweeping surveillance powers. "As we enter this new world there is no room for exceptionalism or unilateralism…. We need the same rules for everyone."
The Obama administration is fighting some of these efforts, as you’d expect. But on others, the United States has expressed a willingness to accept some greater constraints on its actions. It agreed, for instance, to shelve plans to bomb Syria. It promised to curtail its spying on friendly leaders and U.N. Secretary General Ban Ki-moon, a deeply pro-American diplomat whose talking points were stolen by NSA spies before meeting with President Barack Obama, according to reports in The Guardian and the New York Times.
"There is an effort to push back by the international community," Juan Mendez, an independent U.N. human rights watchdog and former Argentine political prisoner who endured torture during that country’s "Dirty War," told Foreign Policy. "I think many governments, Europeans in particular, are moving backwards from their blind support for whatever the United States did after 9/11. As a result of this, they are asserting a need to go back to basics and reinforce international human rights standards and international humanitarian law standards."
Mendez, who currently serves as a U.N. special rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, is seeking to update the rules for the treatment of detainees. He has drafted a proposal to revise a code of conduct written in the 1950s — known as the Standard Minimum Rules on the Treatment of Prisoners — to reflect the evolution of international law over the past 60-plus years. The measures include new restrictions on the use of solitary confinement, and applies standard international guidelines for humanely treating incarcerated criminals to prisoners of war, immigrants, and patients of mental health facilities.
European governments, led by Denmark and Switzerland, have pressed this week for a U.N. General Assembly resolution that would condemn the use of torture and endorse Mendez’s plans. But they have faced resistance from the United States, which maintains that applying the rules beyond the criminal justice system would go beyond the scope of Mendez’s mandate. In closed-door negotiations, the United States has sought to scrub language that would apply the rules to place like Guantanamo.
"With respect to detention pursuant to the law of armed conflict, existing international instruments already govern the field," U.S. State Department lawyer Julianna Bentes told the committee. "Extending SMRs [Standard Minimum Rules] to cover additional categories would lead to confusion in both fields, and ultimately undermine state support for the U.N. standards for crime prevention and criminal justice."
The United States still wields enormous influence at the United Nations, leading efforts in the Security Council to combat terrorism around the world. Since 9/11, the U.N. Security Council has created a raft of resolutions requiring governments to pass and enforce anti-terror laws, and imposed sanctions on individuals and entities suspected of having links to al Qaeda. Prosecuting the war on terror is one of the few things the U.N.’s five major powers — Britain, China, France, Russia, and the United States — consistently agree on. They have backed international peacekeeping efforts in Somalia and Mali that target Islamist militants linked to al Qaeda.
But many smaller governments are increasingly reluctant to follow Washington’s lead. Other rising powers, including Brazil and Germany, are seeking to take the initiative, promoting a raft of U.N. resolutions and rules that would curtail America’s powers.
America’s go-it-alone strategy has fueled anxiety beyond the current controversy over spying. Brazil’s Patriota voiced concerns about the United States’s use of drones to target suspected terrorists, saying that it "indirectly encourages others to do the same."
For the time being, there has not been a major push by governments at the U.N. to impose legal constraints on America’s use of armed drones in foreign lands. But the matter has become the subject of an ongoing investigation by Ben Emmerson, the U.N. special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and Christof Heyns, the U.N. special rapporteur on extrajudicial, summary, or arbitrary executions. "Although drones are not illegal weapons, they can make it easier for States to deploy deadly and targeted force on the territories of other States," Heyns wrote. "If the right to life is to be secured, it is imperative that the limitations posed by international law on the use of force are not weakened by broad justifications of drone strikes."
Navi Pillay, the U.N. high commissioner for human rights, said she is also "seriously concerned about human rights implications for the protection of civilians of armed drone strikes carried out in the context of counter-terrorism and military operations" by the United States and Israel. During a debate on protection of civilians in August, Pillay urged countries to "clarify the legal basis for such strikes," noting that "the current lack of transparency surrounding their use creates an accountability vacuum and affects the ability of victims to seek redress."
In May, Pillay offered a broader critique of America’s respond to terrorism in a speech to the Human Rights Council. "The objective of the global struggle against terrorism is the defense of the rule of law and a society characterized by values of freedom, equality, dignity, and justice," she said. "Yet time and again, my office has received allegations of very grave violations of human rights that have taken place in the context of counter-terrorist and counter-insurgency operations. Such practices are self-defeating. Measures that violate human rights do not uproot terrorism: they nurture it."
Pillay said the "injustice embodied" in the Guantanamo detention center — where many individuals are subject to "indefinite" and "arbitrary" detention in "breach of international law"– has become an ideal recruitment tool for terrorists.
Some of the push back is posturing by governments seeking to take advantage of the world’s lone superpower being on the defensive. For example, China — a country with a reputation for engaging in extensive online espionage of foreigners and ruthlessly cracking down on dissent at home — urged the U.N. to curtail what it sees as American excesses.
At a U.N. meeting last month dealing with online communications, Xie Xiaowu, a Chinese diplomat, called on member states to confront a "certain country [that] is abusing their technological advantages to spy on other countries, steal information from organizations or individuals of other countries, and violate people’s privacy."
It is imperative to establish "multilateral, democratic and transparent" international norms that are "fair, equitable and efficient" and that "respect the information sovereignty of all states and protect the fundamental rights of all citizens," he added. "Hegemony in the field of ICT [Information and Communications Technology] must be rejected."
For years, China and Russia have been pushing for a U.N. code of conduct for cyber-security. The United States and other Western governments harbored suspicions that the Chinese and Russian effort was largely aimed at kneecapping America’s technical advantage online — and reinforcing states’ rights to curb freedom of expression online.
Other states expressing concern about American practices are doing so in part to shift blame away from themselves, U.N. experts say. Some of the nations complaining the most loudly also partnered with the NSA in its spying operations.
The Brazilians have been embarrassed by the disclosure of an NSA listening station in Brasilia, right under the government’s nose, said Bruce Jones, the director of New York University Center on International Cooperation. "In domestic terms, they have to create some distance" from the United States, he said.
Germany, Jones noted, is seriously offended by the revelations that the NSA listened in on German Chancellor Angela Merkel’s cell phone conversations. But what they really want is to develop a closer relationship with American intelligence agencies. "What the United States is experiencing internationally is a combination of genuine anger, tactical posturing, and an effort by governments to get some cover by pursuing symbolic initiatives," Jones said. But like most of governments, Germany will still cooperate on the intelligence front with the United States. "It’s in their interest to do so. It’s not like they are going to stop cooperating."
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