Saturday, April 26, 2008 - Posts
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sponsorship
But since they're not, Ben is of course right that pirates should be detained if they've done bad things. That said, I'm not sure it's fair take the U.K.'s apparent move not to detain some pirates to be the human rights law failure Ben does.
For one thing, the flip side of the story of this particularly silly decision out of the British Foreign Office is the larger story about the United States and (wait for it) France working vigorously together (with the U.N.) to crack down on (and detain) pirates off the Somalia coast. For another thing, it'd be reasonable to ask whether Britain's skittishness about anti-pirate coalition efforts here is bound up with its ongoing discomfort working with the United States in detention operations generally (in light of our recent track record of torturing folks we detain). In any case, I wouldn't claim the U.K. decision as an unalloyed victory for human rights. But I always balk a bit at generalizing from this kind of one-off case. Just because the occasional O.J. Simpson trial makes the criminal justice system look loopy doesn't mean we throw the whole thing out and start from scratch.
Now, Ben's larger question about the potential dilemma posed by nonrefoulement obligations is an important one. (Nonrefoulement generally refers to treaty obligations not to send individuals back to countries where they're likely to face some horrific abuse of their own human rights.) The U.K. is right that they have treaty obligations not to send detainees back to places where they're likely to be tortured. So what's a well-meaning nation to do with the pirates (or Gitmo-bound terrorists) it arrests? Here, I'd say piracy is a much easier case. It could be that there's some important law-of-the-sea rules I don't know about (so guidance here most welcome), but my guess is piracy pretty much everywhere is a crime. And if there are regulatory gaps in maritime security law that make it not a crime (or not prosecutable except in the home country of the pirate), then those laws need to be fixed. Not a fix: setting them free in any country where they'll either be tortured or be set free and go about torturing folks themselves. In all events, I'm not sure it's possible to blame human rights law for much complicating this.
Gitmo, as Ben well knows, is a whole other kettle of fish because, among other reasons, many of the detainees there don't seem to have committed any crime or, it is often asserted, haven't committed any crime we can reasonably prove. So without wading into those treacherous waters (happy to get back to that debate in another post sometime, Ben), let's focus on the folks who actually pose the nonrefoulement question. These are the detainees we've decided we want to let go from Gitmo but just don't know where to put them when they're freed—because they face torture in their home country and because no other country in the world is willing to take in a former resident of Gitmo even after the U.S. government has publicly concluded he poses no threat to us.
Here I'd say this isn't a dilemma, it's where the human rights rubber meets the road. When the United States, the United Kingdom, and a host of other nations signed onto the treaties that create asylum obligations, they were making a commitment to take in those facing gross human rights abuse overseas. It's possible that the United States would be having more success placing some of these (dare it be said, innocent) Gitmo detainees with other asylum hosts if we hadn't spent much of the past seven years telling the rest of the world that they were all the worst of the worst. Or making it clear to the rest of the world how little we care what they think. But feel free to come back at me on this. ...
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Diane’s post highlights an excellent example of the often perverse consequences of human-rights policies for, well, human rights.
There is no doubt that modern pirates commit horrible crimes against civilians; that's their chosen profession. Yet because of the combination of British asylum law and the international obligation not to return people to countries that may mistreat them, the Foreign Office has apparently instructed the Royal Navy not even to detain them on the high seas. Diane acknowledges that this solicitude for the human rights of pirates "will trouble those who would use the old rule of free-rein-to-fight-pirates as a template for today’s treatment of persons caught up in what the Bush Administration calls its 'Global War on Terror.' " But it seems to me it should also trouble those concerned with the human rights of the civilians whom these pirates kill, rob, and terrorize.
The basic problem is that while we evaluate government actions in human rights terms, we generally don’t evaluate government inactions in human rights terms. So the decision to detain a pirate we see as potentially infringing on his human rights in any number of ways. The decision, however, willfully to ignore him—knowing full well what he is doing to innocent people—we perversely see as a victory for human rights. The government, after all, has declined to detain him. In the example Diane cites from the Sunday Times of London, it has declined to return him to Somalia, where he could "face beheading for murder or having a hand chopped off for theft." But the result is a disregard for the human rights of the civilians unlucky enough to be terrorized by non-state, as opposed to state, actors. This is not a good trade in human-rights terms.
This is not a problem limited to piracy. We consistently talk about releases from Guantanamo as a human-rights good—without much consideration for the human-rights consequences of releasing admitted combatants (as many detainees there are) who may then go on to kill civilians (as some have). Such releases should present a human right puzzle, not an easy call. In Afghanistan, some European militaries go so far as to generally decline to detain Taliban fighters for any length of time—the result being that unless the Afghan government or the U.S. military takes custody of them, people committed to killing Afghan civilians get turned loose to do so. I can’t see by what calculation—moral, legal, or pragmatic—such human-rights policies represent a simple net human-rights gain.
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Since the time of Grotius, a pirate has been considered to be hostis humanis generis, an enemy of mankind.
So write Ilias Bantekas and Susan Nash in their book International Criminal Law (2003). As a global enemy, the pirate was subject to prosecution in any country that managed to exercise jurisdiction over him—or, in the case of pirates like Grace O'Malley—her. Thus it's a bit of a surprise to read that Britain, the country that once claimed to rule the waves, is shirking from seizure of the 21st-century pirates about whom my IntLawGrrl co-blogger, Naomi Norberg, posted earlier this month. London's Sunday Times of London reported that the Foreign Office has instructed the Royal Navy "not to detain pirates because doing so may breach their human rights." The Times' Marie Woolf reports of the further concern regarding the "risk that captured pirates could claim asylum in Britain." This fear of inability to return the captives likely stems from Britain's nonrefoulement obligations, explicit in treaty provisions such as Article 33 of the Convention relating to the Status of Refugees and Article 3 of the Convention Against Torture, and deemed implicit in provisions such as Article 3 of the European Convention on Human Rights and Article 7 of the International Covenant on Civil and Political Rights:
The Foreign Office has advised that pirates sent back to Somalia could have their human rights breached because, under Islamic law, they face beheading for murder or having a hand chopped off for theft.
Not all Britons share this view. The Times quoted Julian Brazier, a Conservative Member of Parliament:
'These people commit horrendous offences. The solution is not to turn a blind eye but to turn them over to the local authorities. The convention on human rights quite rightly doesn’t cover the high seas. It’s a pathetic indictment of what our legal system has come to.'
No doubt the notion that even hostes humanis have human rights also will trouble those who would use the old rule of free-rein-to-fight-pirates as a template for today's treatment of persons caught up in what the Bush Administration calls its "Global War on Terror."
(Cross-posted at IntLawGrrls blog; thanks to Berkeley Law student Lindsay M. Harris for the heads up on the Times story.)
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