Statement of Andre M. Surena re: Classification of detainees at Guantanamo Bay

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Annual Meeting
The American Society of International Law
Washington, D.C.

March 31 - April 3 2004
Human Rights
And

Humanitarian Law
Statement of: Andre M. Surena
Department of State (retired)

UNITED STATES DEPARTMENT OF STATE REVIEW AUTHORITY: SHARON E AHMAD

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DATE/CASE ID: 21 DEC 2004 200303827
The ASIL program lists this panel's topic as "Human
Rights & International Law: . [It asks] Are There Some
Individuals Bereft of All Legal Protections." The program
notes that "[f]or many years it was widely assumed that
international humanitarian law and international human
rights law were two entirely separate bodies of law and
that [humanitarian law] applied in times of war and [human
rights lawJ applied in times of peace." Furthermore, the
program states that the International Court of Justice, "in
paragraph 25 of its Advisory Opinion on Nuclear Weapons,
seemed to say that there was a greater degree of overlap
between the two." We, the panelists, are supposed to
discuss this issue as it relates to the detainees at
Guantanamo Bay, Cuba.

I would like to begin by an examination of the ICJ's
advisory opinion concerning the "Legality of the Threat or
Use of Nuclear Weapons."

The ICJ opinion was offered in response to a request
from the UN General Assembly in UNGA Resolution 49/75K of
15 December 1994. The second preambular paragraph of that
resolution, which I find of note, stated that the General
Assembly was:

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Mindful that States have an obligation under the
Charter of the United Nations to refrain from the
threat or use of force against the territorial
integrity or political independence of any State. that
States have an obligation under the Charter of the
United Nations to refrain from the threat or use of
force against the territorial integrity or political
independence of any State.

I will return later to this apparent predicate for

the UNGA request.

The request of the UNGA Iin the English text] was that

the International Court of Justice render an advisory

opinion on the following question:

Is the threat or use of nuclear weapons in any

circumstance permitted under international law?

Before addressing the merits, the Court addressed a

number of antecedent questions. Among those was whether

the question put by the UNGA was relevant to the work of

the UNGA. In this regard the Court observed that:

12. The question put to the Court has a relevance to
many aspects of the activities and concerns of the
General Assembly including those relating to the
threat or use of force in international relations, the
disarmament procesS, and the progressive development
of international law. The General Assembly has a long­standing interest in these matters and in their
relation to nuclear weapons. This interest has been
manifested in the annual First Committee debates, and
the Assembly resolutions on nuclear weapons; in the
holding of three special sessions on disarmament

(1978, 1982 and 1988) by the General Assembly, and the
annual meetings of the Disarmament Commission since
1978; and also in the commissioning of studies on the
effects of the use of nuclear weapons.

I would note that none of these UNGA activities give

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rise to binding obligations upon States Members of the UN,

nor do they necessarily bind the Organization.

On the issue of whether the request posed a "legal

question," the Court concluded that:

The question put to the Court by the General Assembly
is indeed a legal one, since the Court is asked to
rule on the compatibility of the threat or use of
nuclear weapons with the relevant principles and rules
of international law. To do this, the Court must
identify the existing principles and rules, interpret
them and apply them to the threat or use of nuclear
weapons, thus offering a reply to the question posed
based on law.

In response to criticisms by States Members that

offering an advisory opinion on this question would not be

productive, the Court stated that:

In contending that the question put to the Court is

vague and abstract, some States appeared to mean by
this that there exists no specific dispute on the
subject-matter of the question. In order to respond to
this arguMent, it is necessary to distinguish between

requirements governing contentious procedure and those

applicable to advisory opinions. The purpose of the

advisory function is not to settle "at least directly"

disputes between States, but to offer legal advice to

the organs and institutions requesting the opinion

(cf. Interpretation of Peace Treaties.Reports
1950, p. 71). The fact that the question put to the
Court does not relate to a specific dispute should
consequently not lead the Court to decline to give the
opinion requested.

So this panel has been convened today to discuss the

impact of this advisory opinion on the conduct of States

Members of the UN; actually on the conduct of one State

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Member of the UN, namely the United States. Whereas, as

noted above, the Court did not purport in this Advisory

Opinion to interpret the obligations of States Members.

Rather, it purported to give the UN General Assembly and

other UN organs, its "legal advice." Legal advice based

on "the relevant principles and rules of international

law."

Based on Paragraph 25 of the Court's opinion, it

appears that the Court concluded that the International

Covenant on Civil and Political Rights formed part of that

relevant law. Paragraph 25 states:

25. The Court observes that the protection of the
International Covenant of Civil and Political Rights
does not cease in times of war, except by operation of
Article 4 of the Covenant whereby certain provisions
may be derogated from in a time of national emergency.
Respect for the right to life is not, however, such a
provision. In principle, the right not arbitrarily to
be deprived of one's life applies also in hostilities.
The test of what is an arbitrary deprivation of life,
however, then falls to be determined by the applicable
lex specialis, namely, the law applicable in armed
conflict which is designed to regulate the conduct of
hostilities. Thus whether a particular loss of life,
through the use of a certain weapon in warfare, is to
be considered an arbitrary deprivation of life
contrary to Article 6 of the Covenant, can only be
decided by reference to the law applicable in armed
conflict and not deduced from the terms of the
Covenant itself.

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OBSERVATIONS:

I find the opinion to comprise a confounding mix of
concepts, and I offer the following observations:

What does it mean to say that the meaning of
Article 6 of the Covenant cannot be deduced from the text
of Article 6? That one has to look to the lex specialis of
international humanitarian law in order to determine the
meaning of the right to life in times of armed conflict?
think that, on its face, this is an illogical formulation.
It gives hortatory recognition to human rights law in times
of armed conflict, but on substance, looks entirely to
international humanitarian law. The no more than hortatory
nature of this reference to human rights law in. times of
armed conflict is all the more evident in the Court's
judgment, which makes no reference to human rights, but
casts its conclusions entirely in terms of international
humanitarian law.

First..

Second. Why does the Court cite to the International
Covenant on Civil and Political Rights? Yes, it does
mention in its opinion that some State submissions argued
that it was the applicable law and that other States argued
that'it was not the applicable law. Paragraph 25 resolves

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the primary dispute between those two camps by concluding
that the Covenant applies during times of war as well as
peace. But the Court offers no affirmative justification -
no foundation - for considering that the Covenant is part
of the relevant law for this case. Indeed, its conclusion,
noted above, that international humanitarian law provides
exclusively the substantive law needed to resolve the
question before it, suggests that the Covenant did not
provide part of the relevant law

Third. Why then did the Court include Paragraph 25 in
its opinion? I don't know. The Court gives no
justification for what - in light of the conclusions of the
opinion - is at best highly gratuitous "obiter dictum."
Although, it is difficult even to regard it as dictum,
since it is rebutted by the conclusions of the opinion,
which give no weight to human rights considerations.

•

Fourth. Why did the Court refer at all to the
Covenant in an opinion concerned with the use of force in
an international armed conflict?

Here, I recall the second Preambular Paragrapg of the
UNGA resolution requesting this opinion. Its fOcus was the

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use of nuclear weapons against the territorial integrity
and political independence of a second State.

But, the obligations assumed by a State Party to the
Covenant are clearly limited [in Article 2(1) of the

.Covenant] to "all individuals within its territory and subject to its jurisdiction." Thus the reach of the Covenant is not extraterritorial. Accordingly any reference to the Covenant in this opinion would logically have focused on the possible use by a State of nuclear weapons in its own territory. But, there is not discussion of this in the opinion
Fifth. How did the Court decide what rules and principles of international law it should examine? Had this been a contentious case, the Court would clearly have turned to the relevant bilateral or multilateral treaties ratified by the disputing Parties. But, as an advisory opinion intended solely to give "legal advice" to UN organs, the Court lacked such guidance. Instead, it reviewed a number of sources, including non-binding instruments, and from them cobbled general legal advice to UN organs that we are now - at this panel - being asked to apply to the conduct of a State - a State which may or may

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not have endorsed the non-binding instruments or even the

binding instruments on which the Court relied.

Finally, as they say in basketball - or, at least, as
I knew it in New York - no blood, no foul. Despite the
peculiar inclusion of Paragraph 25, the Court found
correctly that international humanitarian law - and not
human rights law - governs armed conflict.

In terms of the immediate issue before us, that means
that international humanitarian law governs the capture and
detention of enemy combatants that are now or have been
held at Guantanamo Bay, Cuba. That does not, however,
answer the question completely because the current
conflict, in my opinion, is sui generis. It is not the
conventional combat between uniformed militaries of States.

In that regard, I would note that some have argued
that if persons are not prisoners of war under the Third
Geneva Convention, they must be protected persons under the
Fourth Geneva Convention. To permit otherwise, it is said,
would create "persons bereft of all legal protections."

But, this argument does not prevail even in the
context of conventional warfare. Certain persons are never
eligible for POW or protected person status: these include

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co-belligerents, one's own nationals, and nationals of
Allies enjoying diplomatic relations. That is not to say
that they are bereft of all protections, however. They are
certainly entitled to the general humanitarian protections
contained in Common Article 3 of the Geneva Conventions, as
are the detainees at Guantanamo Bay.

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