Batool Alsamadi

Philosophy of Law / Bohman

TR, 12:45 – 2:00pm
May 11, 2007 [due]

3rd Essay Set

(1.)
The protection of human rights is a disclosure guaranteeing the physical and moral

integrity as part of the fundamental freedom that every person is granted both in municipal law

(state constitutional systems) and in the international legal system, particularly in the constituent

instruments and charters of international organizations. Hart’s concept of international law is

applicable on one end in contending the rule of recognition; however, his rejection of sanctions

on the international level, his insistence of international law not being a system but a set of rules

– and namely, his rejection of morality’s presence in a legal system – do not hold valid in the

international legal system, especially when dealing with grave violations of human rights. I will

(I) first discuss the similarities seen in municipal law and international law, and the contributions

they make to the rule of law. In this discussion, I will provide the valid points offered by Hart in

terms of the rule of recognition and the similarities between the two legal systems; (II) I will

further show the proof and use of sanctions on the international level as provided by Grotius to

show how they’re used to remedy grave violations of human rights; (III) I will then show the

obligations that states are expected to make in order to protect their citizens from human right

violations; (IV) I will go on to show the structure of the legal systems on the municipal and

international levels, and why international law should not universalize (since municipal law

contributes to international law); (V) Lastly, I will discuss the presence and importance of

morality in international criminal law.

Hart’s arguments of arguing international law as really “law” are sound in some areas,

particularly when he defends the idea of municipal law and international law having
commonalities. According to Hart, municipal law and international law are similar because (1) it

has the feature that allows a lawyer to transfer his techniques from municipal law to international

law; (2) the rule of recognition in Hart’s view is present in both municipal law (the sovereign

power) and international law. This leads us to the possible implication that if a lawyer can freely

transfer his techniques to international law, then the international law must have some sort of

rule of recognition as well. (3) Another reason why Hart defends the presence of the rule of

recognition in international law is by his provided illustration of multilateral treaties. If multilateral

treaties were to become generally accepted as binding on states that are not parties to them,

international law will have a legislative feature, and hence, international laws contain rule of

recognition. (4) Hart aside, the rule of recognition is present in international law due to the

norms of jos cogens that are considered to be binding on all members of the international legal

community.

While Hart rejects the idea of sanctions in an international legal system, in cases that

deal with grave violations of human rights – proves him otherwise. When the subject is grave,

the international consensus allows such exemption for international law to have universal effect.

Hart argues against the use of sanctions in a legal system because it can lead to “widespread

and self-defeating strife” (D’Amato, 1). Namely, Grotius maintains this idea that good men

everywhere approve justice, and good men condemn injustice (Grotius, 8). For Grotius,

municipal law arises from the mutual consent of the members seeking the good for their

community – henceforth, international law for Grotius derives from the implicit consent of states

that aim for the good of the international community as a whole (Grotius, 17). Jus cogens

protects all concern regarding individual rights against state, especially bodily integrity and

personal security against extreme violations. Achieving such goals [protection of mankind] is

also achieving the important goals of promoting interests – a crucial aim of law (Murphy, 83).

Moreover, it is the obligation of states to protect human rights. According to the Charter

of the United Nations, this obligation expects states to ensure states in recognizing the human
dignity. Moreover, when a state breaches their obligation of restoring human rights, they cannot

use the excuse that such matters are essentially within its own jurisdiction as a scapegoat.

During the Barcelona Traction & Power Co. Case (1970), the International Court of Justice (ICJ)

suggested that states are expected to owe certain obligations to the entire international

community, or erga omnes. All states have a legal interest in the protection of erga omnes.

When rulers cease to serve the common good of people, they will be replaced by outside

intervention via international law. In addition, other states are allowed to (either individually, or

team up with other states) take measures towards any state that has violated their obligation of

protecting human rights. However, according to Article 2 of The Protection of Human Rights

and the Principle of Non-Intervention in Internal Affairs of States, such measures other states

may take should stay in the lines of diplomacy and does not mention any use of force. Such

measures taken are particularly justified when dealing with grave violations of human rights,

especially systematic or large-scale offenses. Other states are also entitled to verbally express

their disapproval toward another state that failed to oblige – fully protected by Article 3 of this

same provision. Lastly, under Article 5, states are also entitled to send assistances for survival

(e.g. Red Cross, food or medical supplies, etc.) to the state failing to oblige; as well as accepting

humanitarian assistances for its people and not rejecting such offers. International law has

always been recognized as an obligation for states to liberate the oppressed people from

criminals. When norms like jus cogens and erga omnes are existent to serve the international

community, it only makes sense that the whole international community should maintain that

right to enforce such norms.

Hart’s argument is faulty when declaring international law as a set of rules instead of a

system (because it’s “primitive”). When international law responds to violations of human rights,

it becomes viewed in a more systematic way, and enforcing in response to such a violation is

essential for the maintenance and survival for any system. International law would not be a law

if enforcement is not taken in cases of high violations. Also, enforcement has two obvious
features that make it essential: (1) it discourages the violator of committing future violations; (2)

it provides a warning for the rest to face sanctions if choosing to violate international law.

Moreover, this warning effect that enforcement has motivates other states to abide by their legal

obligations.

This system is essential because it allows the community as a whole to participate in a

legislative process that develops general international law. This system also further promotes

the international community’s interest by having all conform to the rule of law. However, moving

into a direction to universalize international law is no good since state sovereignty and

autonomy are essential elements to have in an international legal system. Because

international law can have such a wider more generalized scope, it can risk filtering out the local

interests found in a community that cannot be represented on the international scale. Moreover,

Hart’s definition of the “rule of recognition” further contends that it gives legislative power to the

lawmakers. If international law was universalized, how would the international community cope

with the possibility of lawmakers abusing their authority? It would be a difficult situation to

handle. With each state legislating for its own and partaking in a community-based international

legal system, it allows for a safer space of checks and balances.

Further, the nature or design of international law is like a social contract between nation-

states. Social contracts have the characteristic of having parties surrender some of their self-

rule for the cause of a general willingness, and in this case, it is the willingness of the

international community. The nature of law and morality extends farther into international law

and almost all legal systems than Hart would ever admit to. It would take an intellectual jujitsu

to explain the absence of morality in legal systems that deal with grave human rights. If peace

were to be threatened to the point of violating human rights, natural law and morality will have to

be taken into account in order to decide if the international community should take measures.

For Hart to dismiss morality as indifferent in legal systems would be like rejecting much of the

structure found in the classic theories of natural law and international law. For example, the
possibility of arguing against unjust wars authored by Grotius have been a rule that requires by

its own terms a moral or natural-law interpretation.

In conclusion, international criminal law should be enforced with sanctions, as it is, when

dealing with emergency situations like grave violations of human rights. Such rules to abstain

from human violations are binding among the states as obligatory, as shown through the rule of

recognition, sanctions, morality, jus cogens norms, as well as the functioning of municipal law

and international law in a community-based legislation.

Works Cited
(besides text and supplementary E-reserve readings)

D’Amato, Anthony; The Neo-Positivist Concept of International Law. American Journal

Of International Law, Issue A65b. New York: 1965.

Grotius, Hugo. Prolegomena to The Law of War and Peace. New York: McMillian
Publishing, 1952.
 (2.)

A National threat to security, namely terrorism, does not justify the suspension of habeas corpus

rights or permitting torture and other acts of injustices onto fellow human beings. Although the Supreme

Justices may come off as the “devil’s advocate” or a nuisance in fighting the war on terrorism at times,

their line of reasoning however are sound in the way they are founded upon the protection of human

interests, namely justice and rights. As part of the rule of law, it is obligatory to protect the interests of

people, which is not done so by stripping away their right to a trial, due process, tribunals, interrogation, or

other forms of torture. I will show that due process is a guarantee provided to all individuals under U.S.

jurisdiction by citing a variety of cases and providing an analysis of the Supreme Justices’ opinions.

According to Justice Stevens, he wrote in a 6-to-3 opinion that it is unconstitutional to deny

habeas corpus rights to a foreign citizen. As long as they were on grounds that U.S. demonstrates

jurisdiction over (even military jurisdiction), one is entitled to habeas corpus rights – even if they are not

U.S. citizens. The U.S. had demonstrated complete jurisdiction and control over the naval base in

Guantanamo Bay, which grants the detainees a right to trial. The detainees are constitutionally allowed to

sue our government for their mistreatment.

As a brief illustration, lets say a U.S. citizen in Mongolia broke a law under their jurisdiction. It

would not be likely that the U.S. would be able to “step in” to stop any harsh form of punishment

Mongolian law uses as sanctions. This is because the U.S. citizen was in the Mongolian jurisdiction when

breaking their law, and therefore, Mongolian law becomes applicable to the U.S. citizen.

In the case of Rasul v. Bush, both the District Court and the Court of Appeals rejected the habeas

corpus petitions, finding their decisions on Johensen v. Eisentrager, contending that the U.S. is unable to

grant a writ because the U.S. does not have jurisdiction over aliens captured abroad and detained in other

countries. In Johensen v. Eisentrager, Supreme Court was not able to provide access for habeas petition

on the behalf of twenty-two German citizens that were captured during World War II. The constitution

does not provide a prisoner access for habeas corpus when he (a) is an enemy alien; (b) has never been

or resided in the United States; (c) was captured outside of our territory and there held in military custody

as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United

States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times
imprisoned outside the United States. This is because they were tried in military commissions (overseas)

and convicted and jailed in a U.S. military prison in Germany, violating more than one of these

constitutional habeas corpus requirements.

When the petitioner filed for another appeal, the decision to deny habeas corpus was overturned

by the Supreme Court. The President’s argument against the Supreme Court’s decision was that: (1)

allowing the petition a writ to habeas corpus could possibly interfere with his military campaign on the war

against terrorism; (2) captured combatants fall within the President’s authority because he’s Commander

in Chief. Justice Stevens did not find these arguments to be convincing, neither did they become

addressed during the Supreme Justices’ opinions. Moreover, in their opinion, the Supreme Court

distinguished the Guantanamo Bay detainees different from the Eisentrager’s status as that the

Eisentrager’s status was: (1) enemy aliens (2) having never resided in the U.S. (3) captured outside U.S.

Territory and held there in military custody as prisoner of war (4) tried and convicted by a military

commission sitting outside the U.S, (5) at all times imprisoned outside the United States. The

Guantanamo Bay detainees, on the other hand, were more eligible for habeas corpus since: (1) they are

not nationals of countries at war with the United States (2) they denied having any engagement in or

plotted any attacks against the U.S. (3) they have never been afforded access to any tribunal (4) –

therefore have never been convicted or tried of wrongdoing (5) most importantly, they have been

imprisoned in a territory that the U.S. exercises exclusive jurisdiction and control over.

Justice Scalia however dissented from the other Justices’ decision to overturn Guantanamo Bay

because of the fact that there is a gray area about U.S. jurisdiction in other geographical regions –

because no one has real jurisdiction in Guantanamo Bay except the U.S. military. The Bush

administration tried arguing the fact that the treaty says Cuba has “ultimate” sovereignty, that this implies

U.S. had no jurisdiction. However, there is no “gray” area of U.S. jurisdiction. It is clear and cut for two

reasons: (1) the treaty U.S. holds with Cuba explicitly stated our degree of sovereign power; and (2) if the

U.S. military is able to detain foreign citizens (enforce sanctions, and sanctions are imposed when rules of

the jurisdiction are broken), this automatically implies that there was a form of jurisdiction the U.S. had

over Guantanamo Bay. Expanding on the Guantanamo Bay’s element (4), because the detainees were

foreign citizens, the court jurisdiction became necessary for this invocation. Further, the U.S. treaty with
Cuba over Guantanamo Bay states that U.S. does indeed have complete jurisdiction over their base, but

that Cuba maintains ultimate sovereignty. The Supreme Court stood with the detainees’ argument that

regardless what the treaty says, U.S. still demonstrates full legal control over Guantanamo Bay and thus

have jurisdiction.

Justice Stevens had come up with an interesting line of reasoning. Many of the justices

questioned whether or not Johnson v. Eisentrager was even relevant to the Guantanamo Bay detainees

while the Bush Administration maintained that it was. However, Justice Stevens pointed out that because

Eisentrager’s case was cited upon another case, Ahrens v. Clark – which had been reversed, this

concludes that Eisentrager can no longer be relevant to the Guantanamo Bay detainees.

However, most importantly what the Supreme Court left out according to Owen Fiss was the

mention of the violation of these detainees’ freedoms, “Although the Supreme Court did not embrace all

these audacious and somewhat startling demands for executive power, it failed to vindicate what I have

called the principle of freedom” (237).

If you think about the contrary outcome of Rasul v. Bush, what could have happened if our

government was allowed to detain foreign citizen in a place we apparently have jurisdiction over without

allowing them a right to a trial? It would lead to a corrupt procedure of governing, unfairness, oppression,

and inhumanity if there were no checks. Further, the detainee’s country may not grant them a trial,

possibly contending that it is not their jurisdiction either, it is the U.S.’s jurisdiction because it took place

on U.S. naval grounds; also, because the wrongdoing of the detainee obstructed rules of the U.S.

jurisdiction. Fiss builds on my first few ideas here, citing Sixth Amendment rights:

If the prisoners were not enemy combatants then the government would
have the burden of charging them with a crime. Requiring the government
to proceed in this way would bring into play the protections of the Sixth
Amendment that specifically govern criminal prosecutions, including a speedy
trial, trial by jury, the right to cross examination, proof beyond a reasonable
doubt, and the right to counsel. (236)

If U.S. government is, in fact, allowed to detain individuals that may serve useful as witnesses in

criminal hearings or have the tendency to flee the jurisdiction. However, if this was the case – which it

wasn’t, according to Fiss, “Presumably, such detention would be a limited duration” (236). In another
similar detainee’s case, Padilla was imprisoned for more than two years. Fiss adds that the government

can only have the right to continue to detain suspected enemies only if they have proof that they were

combatants – which they didn’t. Many of the decisions made by the U.S. government on these detainees

were only based on assertions.

Related, in Hamdan v. Rumsfeld, the Supreme Court once again overturned the decision of lower

courts in a majority decision of 8-to-1, declaring the treatment of the detainees unconstitutional. While the

U.S. government’s argument maintained their constitutionality – due to their reasoning of fighting the war

on terror, Judge Doumar from the District Court (dissenting) pointed out that the detainments were based

predominantly on hearsay and bare assertions. Among that fact, the Supreme Court overturned the lower

courts’ decisions since clearly the Executive Branch does not have the power to hold a U.S. citizen

without basic due process protections prescribed by the Constitution and other protections that are

enforceable through judicial review.

Fiss builds on this fact citing textual support in the Constitution:

All these cases put into question a fundamental tenet of the American Constitution
-- what I will call the principle of freedom. This principle denies the Untied
States the authority to imprison anyone unless that person is charged with a
crime and swiftly brought to trial. This principle is rooted in section 9 of Article
I, guaranteeing the write of habeas corpus – the historic means of testing the
legality of detention – and perhaps even more fundamentally, in the Fifth
Amendment guarantee that no person shall be deprived of liberty with due
process of law. (235-236)

In conclusion, it is unconstitutional to deny any individual under U.S. sanction – U.S. citizen or not

– the right to due process. Even in emergency situations such that terrorism provides, it is not sufficient

or just to strip and individual’s rights and freedoms away, particularly when no compelling evidence or

surefire proof that detainees were in fact enemies of the States. To allow such actions to occur would

potentially damage the rule of law and checks on restoring the protection and interests of human beings.