US double standards on human rights

Human rights don't stop at the border

US double standards on human rights are encouraging other states to follow suit. Jonathan Hafetz Obama issued an executive order in 2009 banning torture and other inhumane treatment, writes Hafetz [EPA] The United States recently had the chance to reverse its ill-considered position that human rights  obligations stop at its border. Regrettably, it failed to do so at a meeting last month before the UN Human Rights  Committee in Geneva, despite strong support for a more global view of human rights from within its  own State Department. Since the mid-1990s, the US has maintained that its duties under the International Covenant on  Civil and Political Rights (ICCPR), a leading human rights treaty, do not apply outside the country  even where the US exercises control over the territory, person or situation in question.  This position was originally articulated when the US was under criticism for its policy of intercepting Haitian  refugees at sea. It continues to have far-reaching implications. Today, it looms over such issues as the  detention and transfer of terrorism suspects, lethal drone strikes, and bulk data collection by  intelligence agencies. Two recently leaked memos by former State Department Legal Adviser Harold Koh demonstrates why  the current US position is misguided as a matter of both law and policy. In one memo, Koh explains  that the ICCPR distinguishes between "ensuring" and "respecting" human rights. While the US may be  under an affirmative obligation to ensure human rights only within its own territory, it is always  under a duty to respect human rights any place it exercises authority or control.  To contend otherwise contradicts the fundamental premise of human rights, which are  global in nature. In a separate memo, Koh dismantles the current US position on the UN Convention against  Torture (CAT).  As Koh explains, a state's obligations under CAT extend wherever it exercises effective  control, even if it is operating overseas. Those obligations not only bar torture and other cruel,  inhumane, or degrading treatment, but also prohibit sending a person to another country where  there is a substantial risk they will endure such treatment there. This obligation applies at al l times, even during time of war. The US, to be sure, acknowledges that it follows many human rights guarantees as a matter of policy.  To ensure lawful interrogations, for example, President Barack Obama issued an executive order in  2009 banning torture and other inhumane treatment. This order helped lead to significant reforms in  US counter-terrorism operations, bringing them closer in line with international law. But compliance with human rights norms should not be a matter of choice. It was precisely the  notion that the US is not bound by human rights law outside its borders that led to the creation of Guantanamo and secret CIA black sites. Acknowledging the global reach of human rights law is significant for another reason. As long as the US  maintains it is engaged in a war with al-Qaeda and associated groups, it can continue to argue that its  counter-terrorism operations are governed by the law of war, a separate body of law that displaces  human rights protections when it comes to such matters as using lethal force against an enemy fighter. While the conception of a war on terror remains controversial for a number of reasons, it does not  depend on the geographic scope of human rights treaties. But failing to recognise the binding  nature of those treaties for actions overseas still creates a legal vacuum that will remain once the  war on terror concludes. Most importantly, making human rights optional sends a dangerous message to other states. As Koh  explained, "The denial of the legal obligation invites suspicion and distrust from our audiences,  domestic and foreign." This double standard provides a potential excuse for other states to opt out  of their obligations, undermining the larger international human rights system. There are several possible explanations for the continued US intransigence. It may reflect a concern about the impact recognising a global right to privacy might have on US surveillance and bulk data collection activities overseas. It also may indicate a more general desire on the part of the US to keep its options open, thus  retaining flexibility in grey areas where it would prefer not to be bound. But law commands obedience; otherwise, it's not law. The US cannot be a leader in the field of human  rights as long it maintains its position that respecting those rights is policy choice. Jonathan Hafetz is Associate Professor of Law at Seton Hall Law School and the author of  "Habeas Corpus after 9/11: Confronting America's New Global Detention System." The views expressed in this article are the author's own and do not necessarily reflect  Al Jazeera's editorial policy. http://www.aljazeera.com/indepth/opinion/2014/04/us-human-rights-stop-borders-201441462351949418.html