While Washington was bashing Russia at the U.N. for violating international law, it was facing similar criticisms of its own legal record.
- By David BoscoDavid Bosco is a Foreign Policy contributing editor and assistant professor at American University's School of International Service. He is at work on a book about the International Criminal Court's first decade.
At the United Nations this week, senior U.S. officials have been blasting Russian officials for disregarding established international law and rules by manhandling Ukrainian territory. In Geneva, with much less public attention, U.S. officials have been on the receiving end of accusations that it, too, is circumventing international law.
The focus in New York on Thursday was a session of the U.N. Security Council, where U.S. Ambassador Samantha Power led criticism of Russia’s policy toward Ukraine, insisting that "law matters, rules matter." The Geneva occasion, meanwhile, was a meeting of the U.N.’s much less powerful Human Rights Committee, which is conducting a regular review of America’s compliance with the International Covenant on Civil and Political Rights, or the ICCPR.* (The session was initially scheduled for late last year, but was delayed because of the U.S. government shutdown).
The committee’s examination is not binding and carries no immediate legal weight, but it creates an unusual opportunity for foreign diplomats and NGOs to ask pointed questions of U.S. officials. On Thursday and Friday, State and Justice Department officials fielded hard questions about U.S. drone policy, the country’s application of the death penalty, spying programs, and interrogation practices. Several countries seized on recent tension between Senate investigators and the Central Intelligence Agency over a review of U.S. interrogation policy.
Perhaps the most awkward aspect of the session, however, was the discussion it generated about the Obama administration’s own interpretation of a key human rights treaty. Even as the United States charges Russia with flouting international rules, it has been forced to publicly confront its own efforts to limit the reach of international law.
Shortly before the U.S. appearance at the committee, news leaked of an internal debate about how the United States interprets the ICCPR. For almost two decades, the United States has insisted that the treaty applies only to U.S. conduct on its own national territory — and not U.S. behavior abroad. The United States acknowledges that the ICCPR applies to how it handles Occupy Wall Street protesters, for instance, but has denied that it covers U.S. detention practices or intelligence operations overseas.
This narrow view departs from the rulings of international courts and from the interpretations of most U.S allies, who say the treaty covers activity inside and outside the borders of states that have agreed to its terms. Thanks to leaked documents, it’s now clear that some senior U.S. officials also believe the American interpretation is bunk.
On March 6, the New York Times published a memo by former State Department legal advisor Harold Koh, arguing that the longstanding U.S. interpretation is unsustainable. To adhere to it, Koh wrote, "in the face of extensive contrary evidence and authority would place our attorneys in the position of providing legal advice to the U.S. government that does not reflect the best reading of the law."
As the American session at the committee approached, there was speculation that the United States might signal a policy shift. On Thursday, however, it became clear that Washington would stick to its guns. Acting State Department legal advisor Mary McLeod insisted that the Koh memo had not in fact produced any change in the U.S. stance. "The United States continues to believe that its interpretation — that the covenant applies only to individuals both within its territory and within its jurisdiction — is the most consistent with the covenant’s language and negotiating history," McLeod said.
How much the U.S. interpretation of the ICCPR matters in practice is up for debate. As Koh pointed out in his memo, the United States already acknowledges that other international legal obligations, including the Geneva Conventions, apply to its behavior in armed conflicts. President Obama has issued policy guidance requiring U.S. compliance with international norms against torture. But the ICCPR might cover some U.S. activity — including detention policy and actions by intelligence operatives outside of war zones — that other legal instruments don’t.
Exposure of the internal administration debate has been a salient reminder that for all its public proselytizing about human rights and the rule of law, the United States in many contexts remains fiercely resistant to binding legal scrutiny of its own behavior.
The U.S. approach to the ICCPR is part of a larger trend. In the 1980s, Washington withdrew the broad jurisdiction it had originally granted to the International Court of Justice and has never restored it. Russia also limits the ICJ’s jurisdiction. Like Russia, too, the United States has declined to join the International Criminal Court (although it often supports its investigations). And in 2010, U.S. officials (including Harold Koh) worked with Russia and other big powers to ensure that the ICC couldn’t ever prosecute them for aggression against other states.
That said, the world’s leading liberal democracy and the autocratic petrostate are miles apart in many respects and at odds on numerous issues. On the merits of the Ukraine situation, they have little common ground. But on the specific question of how much international legal scrutiny they will accept, there’s not much daylight between Moscow and Washington. Writing on the Just Security blog, Ryan Goodman, a New York University law professor, noted the awkward coincidence of the Ukraine crisis and the Geneva debate happening at the same time. "Putin now knows he will have a friend in Washington if Moscow tries to scuttle the [Human Rights] Committee’s attention to Russian actions in Ukraine."
*Correction, March 31, 2014: This article originally misstated that the review of America’s human rights record was being conducted by the U.N. Human Rights Council through its Universal Periodic Review process. The review took place through the U.N. Human Rights Committee. (Return to reading.)