Lawyers expecting more from Obama
President Obama’s early moves to condemn torture, order the closure of Guantanamo and commit to combat climate change won him accolades from international human rights advocates turned off by the go-it-alone attitude of the Bush administration.
Now the world’s lawyers are worried that those goals could languish on the diplomatic back burner as the president and his team concentrate on the global economic crisis.
Champions of the environment and the law concede that Obama has a lot on his plate, but impatience is setting in following missed opportunities in recent weeks to signal a new direction on fighting terrorism and global warming.
Legal experts have been able to do little more than shake hands and give cursory review to their differences at international gatherings such as the Group of 20 economic summit in London, an international law forum in Washington and the U.N. climate conference in Bonn.
Since the Bush administration declared its war on terrorism after the Sept. 11 attacks, rights activists have spoken out against the indefinite detention and harsh interrogation of terrorism suspects at the Guantanamo Bay naval base in Cuba.
At least a dozen nations have signaled they are willing to help hasten Guantanamo’s closure by taking in some prisoners no longer considered a security threat yet faced with torture or execution if returned to their home countries. During Obama’s meetings with world leaders in London this month, French President Nicolas Sarkozy said France would accept an Algerian detainee. But other nations are waiting to see what Washington is willing to do, pointing to U.S. failure to grant asylum to 17 Uighurs cleared for release years ago who could face persecution in China.
“It’s a political question in our country as to whether we should take people when the United States has not yet, in spite of this being a problem of their own making,” said Andreas Paulus, a law professor at Germany’s Goettingen University. “The view many abroad have of the United States now is that they use international law when it suits them and drop it when it doesn’t.”
Humanitarian law experts say they expect to see a return to compliance with the Geneva Convention and other pacts within the law of war by U.S. armed forces fighting against those deemed terrorists.
Yoram Dinstein, a Tel Aviv University international law professor, describes the violence inflicted on civilians by U.S. bombing raids of suspected terrorist hide-outs as willful disregard for treaty obligations.
“You can kill all the combatants you want. What you are not allowed to do is cause collateral damage -- civilian casualties,” said Dinstein, who sees little change in U.S. war fighting since Obama took office.
The International Committee of the Red Cross has drafted guidance on determining legitimate targets in armed conflicts, which U.S. officials continue to keep at arm’s length.
Limiting targeted killing to those actively and “continuously” engaged in hostile actions and restricting the use of force to “no more than necessary under the circumstances,” as the Red Cross guidance to be published in June prescribes, is going to be “problematic” from the U.S. viewpoint, said Stephen Pomper, a State Department lawyer responsible for law of war issues.
The hesitation to make a radical departure from the Bush years in security matters has some legal analysts concerned that Obama’s team is more talk than action.
On environmental issues, the president has stirred more confidence for long-term reform despite echoing some of Bush’s grounds for having opted out of the Kyoto Protocol. All developed nations except the United States have issued binding commitments to cut emissions of greenhouse gases. The Bush administration refused to adhere to Kyoto on grounds that it did not include limits on key developing nations China and India.
Todd Stern, special envoy on climate change for the State Department, told U.N. officials meeting in Bonn this month that the Obama administration is determined to make up for lost time.
“We do not doubt the science, we do not doubt the urgency, and we do not doubt the enormity of the challenge before us,” Stern said. But he also alluded to a need for pragmatism and a focus on what is achievable.
Hans Corell, a Swedish diplomat who was U.N. undersecretary for legal affairs, says the international community has faith Obama will recover the United States’ leadership role.
“I belong to the generation that looked up to the United States of America as the best model of democracy. As a European, I remember that Americans came and pulled us out of the muck,” he said of post-World War II Europe, where U.S. troops and reconstruction aid rescued a continent that was a moral and economic shambles. “But Guantanamo and Abu Ghraib have been blotches on the Star-Spangled Banner. The Americans have lost the moral high ground with this so-called war on terror.”
Whether there is a role for the International Court of Justice in prosecuting terrorism suspects from Guantanamo or other U.S.-run detention facilities remains to be seen. Military prosecutors have charged fewer than two dozen of the prisoners, who once numbered more than 700, due in large part to a dearth of evidence.
The U.S. has also refused to comply with international court judgments contrary to domestic policy, as in cases brought from Mexico and Germany in fruitless attempts to halt executions.
“The world needs the leadership of the United States now as at no other time,” Corell said. “But it cannot lead until it recovers the moral and legal high ground.”