The article examines the current state of the Philippines seen in the context of democratic decline and weakened rule of law. With institutional checks and balances rendered ineffective, the Philippine government had been relatively free to disregard its human rights obligations. The article contributes to the body of work suggesting that aside from international mechanisms, focus should also be made in ensuring that states have domestic non-government institutions that can exercise scrutiny over governments’ human rights policies.
It is an immense privilege to respond, as discussant, to James Gathii's 2020 Grotius Lecture.1 I have known and admired Professor Gathii and his work for decades. He is one of those people who manages to combine great accomplishment in international legal scholarship and practice with an unswerving commitment to teaching, collegiality, and mentoring. In these, and in other ways, James Gathii walks his talk. And his talk, as you have heard, is challenging.
In 1977, the UK pledged to the European Court of Human Rights (ECtHR) that it would discontinue five different interrogation techniques being used in Northern Ireland that amounted to human rights violations. The ECtHR affirmed that the “Five Techniques” violated human rights. However, in the years since 1977, the UK has apparently continued the use of those Five Techniques. As recently as 2018, multiple investigations and public inquiries have uncovered use of the Five Techniques by UK forces in Iraq and Afghanistan. The Committee Against Torture expressed its concern in June 2019, in reaction to the sixth periodic report of the UK, that allegations of torture were well-founded. This article questions whether, in addition to violating human rights of the victims by performing those techniques on them, the UK is additionally responsible to the ECtHR for violating its pledge.Pledges made before international courts and tribunals, in the solemnity of proceedings, can be legally-binding, creating new legal obligations to comply with the content of the pledge. The UK Attorney-General gave the pledge before the ECtHR during the Ireland v UK case. The pledge was preceded by another statement by the Prime Minister before Parliament on the same topic, ending use of the Five Techniques. Jurisprudence before the ECtHR, but also other international courts and tribunals such as the International Court of Justice (ICJ), shows that making such a statement is usually treated as creating a new legal obligation. In addition, the International Law Commission (ILC) has developed guidelines on how to determine if a unilateral statement is merely a political remark, or whether it is legally binding. Following both the jurisprudence of the courts and the ILC guidelines, the pledge by the UK must be regarded as binding.
“In this context the proposition that tools are prolongations of human organs can be inverted to state that the organs are also prolongations of the tools.”
Since the inauguration of the controversial “Global War on Terror” following the attacks of September 11, 2001, the applicability of, and compliance with, international law at Guantanamo has been a recurrent and divisive issue, one that becomes particularly cogent in two areas: (1) the legal authority authorizing detention of enemy belligerents, and (2) the applicable law governing the conditions of that detention. Briefly describing how the U.S. legal system implements international law, and then accepting the U.S. position that it is involved in an internationalized NIAC with al Qaeda and associated forces, this article first evaluates the legal authority the United States currently claims authorizes its “law of war” detention at Guantanamo and whether its practices comply with its international law obligations. Secondly, this article will examine the law currently being applied to govern the conditions of detention at Guantanamo—either through challenges to those conditions in habeas litigation in federal courts or before military commissions at Guantanamo. Finally, this article will explore whether the practical circumstances of this conflict and its associated Guantanamo detention have diverged from those that informed the development of the law of war enough so that the authority to detain for the duration of the conflict is no longer defensible, a question left unresolved by the U.S. Supreme Court in Hamdi v. Rumsfeld. Finally, this article discusses how the nature of the continuing armed conflict places pressures on the traditional view of the law of war relied upon by the U.S. government, most acutely in whether continued detention under IHL for the duration of the conflict remains necessary or proportional a generation after the war’s inception, particularly for those detainees who have been cleared for release. These tensions will be exacerbated by a future repeal of the 2001 AUMF or ending of active hostilities in Afghanistan, either of which will terminate the currently asserted U.S. authority for the majority of detention operations at Guantanamo—an eventuality that will require the U.S. national government to “repatriate” those detainees not subject to trial. SThe paper concludes that strengthening the current U.S. detention review processes, and incorporating these processes into domestic U.S. law, is the best mechanism to ensure that Guantanamo detention lasts only so long as an imperative threat to the security of the United States posed by an individual detainee justifies it.
In 2019, President Trump pardoned four members of the U.S. military who had either been accused or of convicted of serious violations of international law. Those pardons were widely criticized on various grounds. Among other things, it was alleged that they undermined the morale and effectiveness of the U.S. military, undermined the rule of law in the United States, and increased the risks for other members of the military. But most commentators conceded that the pardons were a valid exercise of the President’s authority over the military and thus not a violation of U.S. law. This Article approaches the pardons from an international perspective and asks whether the President’s actions are a violation of international law. Specifically, it looks at whether the President of the United States could have committed a war crime by granting them. Commanders have an affirmative obligation to ensure that their subordinates comply with the rules of international humanitarian law (IHL) and to punish them when they do not. Commanders who fail in this obligation can be held criminally liable for their subordinate’s actions. This concept is known as command responsibility. The Article concludes that President Trump has probably committed at least one war crime. In particular, the pardon of Major Mathew Golsteyn, which occurred prior to his trial, made his punishment impossible. As a result of the pardon, Major Golsteyn can never be prosecuted in the United States for his actions, which include murdering a prisoner. The issuance of the pardon by President Trump was a clear violation of the President’s duty to punish Golsteyn’s war crimes. This likely exposes President Trump to criminal liability under the doctrine of command responsibility.
