American Exceptionalism and International Human Rights

Introduction

[1] Thank you for inviting me to join you today to discuss American exceptionalism and international human rights. It is a pleasure to be here.

[2] The U.S. repudiation of international human rights legal standards in the post-9/11 “war on terror” has been widely documented, passionately condemned and legally challenged. Torture at Abu Ghraib, detention at Guantanamo, extraordinary rendition, and unauthorized wiretapping of citizens have been denounced as blatant examples of an American exceptionalism that seeks to exempt the United States from international norms that protect individuals against state abuse. But condemnation of these violations has not been universal. The U.S. defiance of certain international human rights norms has also energized staunch defenders who see U.S. actions as a legitimate exercise of state sovereignty in a time of peril.[1]

[3] Highly publicized debates and litigation have brought questions of human rights and state sovereignty into kitchen table discourse. These discussions about American exceptionalism tend to focus on U.S. treatment of human rights in the “war on terror.” Rarely discussed are the broader context of human rights and the particular historical context of U.S. exceptionalism in human rights. Still less attention is paid to theological constructs that may undergird exceptionalism. In today’s brief presentation I will use both a telescope and a microscope to examine U.S. exceptionalism in the human rights arena. Touching briefly on a broader historical context and then pointing to two case studies, I will highlight the longstanding and complex nature of U.S. exceptionalism and will suggest several points of intersection with important theological perspectives that may hinder or help a flourishing human rights culture.

The Historical Context of U.S. Exceptionalism

[4] The United States does, indeed, have an exceptional relationship with international human rights law. On the one hand, Americans have made invaluable contributions to the development of human rights standards. On the other hand, blatant U.S. disregard for certain international human rights has stained American credibility around the world and weakened the legal standards that Americans worked so hard to promulgate. Ironically, the human rights community today is struggling to shore up some of the basic international human rights norms that are under attack by the very country that played such a pivotal role in their development.

[5] The United States has brought both exceptional leadership and exceptionally dangerous limitation to the protection of human rights. During the early development of international human rights standards, the United States was visible and indispensible in the creation of the United Nations, the leadership of Eleanor Roosevelt, and the groundbreaking promulgation of an international bill of rights consisting of the Universal Declaration of Human Rights (UDHR) and two treaties: the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights.[2]

[6] As the Cold War gained ascendance, however, U.S. leadership in promoting international human rights law and institutions waned. Throughout the Cold War era, successive U.S. administrations showed only selective support for new and existing human rights norms. The early endorsement of the full spectrum of human rights, as seen in Franklin D. Roosevelt’s commitment to economic, social and cultural rights and as recognized in Universal Declaration of Human Rights, fell away in the conflict between communism and capitalism, totalitarianism and democracy that had its grip on all aspects of foreign policy. The United States quickly came to selectively emphasize only civil and political rights.[3]

[7] These directions are reflected in the U.S. ratification of human rights treaties. The United States is a party to only a few of the major human rights instruments: the Geneva Conventions, the ICCPR, the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT or the Torture Convention), the International Convention for the Elimination of Racial Discrimination (CERD or the Race Convention), the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), and protocols regarding child prostitution and child soldiers. Among the treaties the United States has not ratified are the International Covenant on Economic Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC).[4]

[9] Even when the United States does ratify a treaty, it frequently does so with serious limitations. By extensive use of “reservations,” the United States places the highest emphasis on its sovereignty by taking steps to exempt itself from requirements of the international human rights standards contained in the treaties. This form of exceptionalism is classically represented in the “Helms Proviso”– a legal clause attached to the “advice and consent” of the Senate with regard to several human rights treaties, including CAT, ICCPR and CERD. [5] The Proviso stipulates that “Nothing in this Covenant requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.” The Proviso thus limits U.S. international legal obligations to those obligations already existing under U.S. law and suggests a valuing of state sovereignty over human rights protections. Instead of increasing human rights protections according to international standards, a U.S. ratification using the Helms Proviso does not add any protections that are not already present in our national laws. With such reservations, the United States accepts treaty obligations only to the extent that the same obligations already exist under U.S. law.

[10] Although this early form of American exceptionalism was born during the Cold War, the United States continued to exempt itself from international standards even after the fall of the Berlin Wall. As the sole remaining superpower, the United States has taken an increasingly aggressive posture in the post Cold War era by insistently excluding itself from any international laws or norms that it perceives to negatively affect its national self interest. While seen most blatantly in the Bush Administration’s use of the “war on terror” as a justification for ignoring human rights standards, the phenomenon is actually broader and it crosses party lines. The Clinton Administration, for example, was a reluctant participant in the development and implementation of international human rights and humanitarian norms.[6] The disinclination to bind the United States to international norms—even those that the United States has promoted–does not respect political allegiances.

Countervailing Pressures and U.S. Exceptionalism—Two Cases

[11] The attempt of the United States to immunize itself from human rights obligations has not been entirely successful. Countervailing pressures come from both state actors and civil society as growing international support for human rights law brings an important challenge to state sovereignty. In the post 9-11 era, despite the concerted efforts of government lawyers and diplomats to carve out exceptions that would shield the United States from responsibility, the United States has been unable to fully immunize itself from international standards.

The International Criminal Court

[12] Let’s look today at two case studies to illustrate the interplay between the exceptionalist approach and the countervailing pressures that impede it. First, we will briefly examine the U.S. role in the development of the International Criminal Court (ICC or the Court). The Court has jurisdiction in cases of genocide, war crimes and crimes against humanity. Based on the principle of “complementarity,” the Court exercises jurisdiction only in the absence of a national prosecution–that is, it acts when no national criminal justice system has the ability or will to prosecute. The Rome Statute creating the ICC was adopted in July 1998 and entered into force in July 2002 after gaining the requisite 60 ratifications (now 105).[7]

[13] Barbara Frey has chronicled the U.S. role in the development of the ICC. This history illustrates the competing forces affecting the U.S. relationship with international human rights law. The United States provided early leadership in the development of international criminal law standards through its work with the Nuremberg and Tokyo Tribunals and its support for the ad hoc tribunals on Former Yugoslavia and Rwanda. Continuing in the same vein, the United States was an early supporter of the ICC. Only when it became clear that the United States would not be able to exert control over the institution did the United States change its role from supporter to detractor. The United States became a critic of the Rome Statute that was developing and shaping the Court, then voted against the Rome Statute, and finally undertook an all-out campaign against the legitimacy and integrity of the Court.[8]

[14] One of the primary concerns of the United States was whether the ICC prosecutor would have independent authority to investigate crimes. Taking a stance that would dilute the authority of the prosecutor, the United States argued that the U.N. Security Council should control the decision as to which cases could be investigated and prosecuted. Frey calls this “exceptionalism at its finest.” Linking the ICC’s jurisdiction to the Security Council would effectively ensure that no case against any of the permanent five members of the Security Council would ever be prosecuted in the Court. Security Council members would be able to shield not only their own nationals from prosecution but could prevent the Court from prosecuting their allies, as well.[9]

[15] In the negotiations leading to the development of the ICC at the Rome Conference, the Clinton administration strove to eliminate the independent authority of the ICC prosecutor to investigate and prosecute crimes. The United States won few supporters, but to address U.S. concerns, a number of safeguards were built into the Rome Statute. Prominent among them is the principle of complementarity which requires the prosecutor to defer to states that are willing and able to pursue their own investigations. Provisions were also approved that would defer prosecution of any state exercising its peace-making or enforcement powers under Chapter VII of the U.N. Charter. Despite these and other concessions and safeguards, the United States, along with Iraq, Israel, China, Yemen, Libya and Qatar, voted against the Rome Statute in July 1998.

[16] Even after this “no” vote at the Rome Conference, the Clinton administration continued to participate in the ongoing negotiations surrounding the ICC, and finally signed on to the Rome Statute on December 31, 2000, as one of its last official acts. Although Clinton continued to characterize the treaty as “flawed,” he signed it because, after that date, any state that had not signed the Rome Statute would no longer be permitted to participate in the ongoing negotiations determining the rules of procedure and elements of the crimes.[10]

[17] Unlike the Clinton administration that, while critical of the ICC, remained involved in its development, the Bush administration turned the U.S. position into one of aggressive opposition to the Court. In 2002, the Bush administration nullified the U.S. signature and proceeded to campaign vigorously to undermine the effectiveness and credibility of the Court. The Bush administration pressured the Security Council to exempt all peacekeeping forces from ICC jurisdiction and promoted Bilateral Immunity Agreements to ensure that U.S. nationals would be shielded from extradition and prosecution. Bilateral Immunity Agreements prohibit the signing state from surrendering U.S. personnel to the ICC in The Hague.[11] In some cases the agreements are reciprocal, such that the United States agrees that it will not extradite to The Hague, nationals of foreign states who have been indicted by the ICC if those nationals are from a state that has a Bilateral Immunity Agreement with the United States. More than 100 agreements have been signed. Forty-five states have publicly refused to sign, including 22 that have lost some U.S. financial aid as a result.[12]

[18] Another facet of the American exceptionalist approach to the Court is the American Service Member’s Protection Act. Introduced by Jesse Helms and passed by Congress in August 2002, this law further limits U.S. cooperation with the ICC by making U.S. support of U.N. peacekeeping missions contingent on receiving impunity for all U.S. personnel. It also grants the President permission to use “any means necessary” to free U.S. citizens and allies from ICC custody – prompting the nickname “The Hague Invasion Act.”[13]

[19] The Bush administration position on the ICC began to shift from extreme exceptionalism towards a more pragmatic approach when the situations in Iraq and Darfur brought international and domestic attention to questions of international justice. In Iraq, the United States supported and signed into law the creation of the Iraqi Special Tribunal which was a virtual replication of the ICC.[14] Frey notes that the substantive provisions of the Statute of the Iraqi Special Tribunal were lifted almost word for word from the ICC’s Rome Statute and reflect the internationally supported work of the ICC. Thus, indirectly, the Bush administration gave a vote of confidence to the Court.

[20] The atrocities in Darfur, Sudan placed the Bush administration in a quandary with respect to the ICC. President Bush had publicly called the situation a “genocide,” and a growing U.S. constituency, including Congress and the State Department, was agitating for more action on Darfur. Internationally, the U.N. Security Council proposed referring Darfur to the ICC for investigation and prosecution. Could the Administration vote against the ICC again, this time in light of the Darfur atrocities which it had already condemned as genocide?

[21] On March 31, 2005, the U.N. Security Council passed Resolution 1593 referring the Darfur situation to the ICC, authorizing the Court to investigate and prosecute the atrocities. The Bush administration resolved its dilemma by abstaining on the vote—thus allowing the referral to the ICC to go forward. Thereafter, U.S. officials began to speak about the ICC without hostility. In May 2007, the administration publicly welcomed the ICC arrest warrants and urged the Sudanese government to cooperate with the Court. A more positive U.S. approach to the Court had thus emerged in rhetoric and practice, even if not in official U.S. policy. In January 2008, the United States took a further step away from its exceptionalist approach to the ICC by eliminating the restrictions on providing foreign military financing to nations unwilling to enter into Bilateral Immunity Agreements.[15]

The Convention Against Torture
[22] In this seesaw pattern of behavior, we see an American exceptionalist approach that vigorously attempts to exclude the United States from international human rights standards, but that is also subject to countervailing pressures that thwart the drive for full U.S. immunity. This shifting pattern is also evident in the U.S. relationship with the Torture Convention. Unlike the Rome Statute of the ICC, the Torture Convention is a treaty to which the United States is a party. President Reagan signed the treaty in 1988 and sent it to the Senate for advice and consent. In 1989 George H.W. Bush gave it the highest priority for ratification among human rights treaties, and in 1990 the Senate gave its advice and consent, but included an important reservation limiting U.S. obligations to those already existing in U.S. law. Under this reservation, the United States declares that it considers itself bound by the obligation under Article 16 of the Torture Convention to prevent “cruel, inhuman or degrading treatment or punishment,” only insofar as the term “cruel, inhuman or degrading treatment or punishment” means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.[16] Again, we see an attempt to eviscerate the heart of the treaty as applied to the United States.

[23] During the post-9/11 “war on terror” the United States took further steps to exempt itself from international standards by developing its own interpretations of torture, cruel, inhuman and degrading treatment, essentially redefining the requirements of the Torture Convention. Article 1 of Convention provides a very specific definition of torture as:

“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person…for such purposes as
obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person,
or for any reason based on discrimination of any kind,
…when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
[24] The Torture Convention further makes clear that there are no exceptions to these prohibitions. Specifically, Article 2(2) states that torture cannot be justified by any exceptional circumstances such as war or a threat of war, internal political instability or any other public emergency. Article 2(3) makes clear that an order from a superior officer or a public authority may not be invoked as a justification of torture.[17]
[25] In the heat of the post-9/11 “war on terror,” U.S. Justice Department legal advisors ignored internationally accepted norms and definitions regarding torture and invented new interpretations that gave wide berth to U.S. interrogators. The now infamous Department of Justice memo of August 1, 2002 authored by Jay Bybee, was written in response to a request by the CIA, whose agents were using aggressive interrogation methods on alleged al Qaeda members. Concerned that they might later be prosecuted for these acts, they sought legal authority from the White House.[18] The Bybee memo advised the President that as commander-in-chief, he was not bound by the laws of the land prohibiting torture and that he could approve any technique deemed necessary to protect the nation’s security. The memo redefined torture so narrowly that techniques long-considered by U.S. officials to be torture no longer fit the definition. According to the new definition, for physical pain to amount to torture it must be equivalent to the pain accompanying serious physical injury “such as organ failure, impairment of bodily function, or even death.” The same memo declared that mental pain and suffering is not torture unless it results in “significant psychological harm of significant duration, e.g., lasting for months or even years.”[19]

[26] Armed with these new interpretations, the United States authorized the very practices that it regularly condemns when committed by other countries. In December 2002 Rumsfeld authorized stress positions (including “short-shackling”), forced nudity, solitary confinement, isolation, and threatened attacks by dogs. In April 2003 he authorized “environmental manipulation” (excessive heat/cold), forced painful positions or repetitive exercises, and sleep deprivation with interrogations up to 20 hours at a time. [20] With elegant timing, on December 30, 2004–the eve of the Alberto Gonzales confirmation hearings for Attorney General–the Bush administration withdrew the Bybee memo, leaving uncertainty as to the U.S. definition of torture for the future.

[27] Not only is the definition of torture at issue, but equally important is the question of who is protected. For several years, the Bush administration contended that the prohibition of torture and cruel, inhuman or degrading treatment applied only to U.S. citizens and to foreigners in the United States, but not to non-Americans held overseas (for example, in Guantanamo and the CIA’s secret facilities). In 2005 under the leadership of Senator John McCain, Congress responded to this selective approach to human rights by passing legislation banning cruel, inhuman or degrading treatment by U.S. military authorities anywhere in the world. In response, the military adopted new rules rejecting coercive interrogation. However, when Congress voted to apply the same rules to the CIA, Bush vetoed the bill, and Congress lacked the votes to override the veto.

[28] So we see again a seesaw between the attempt to carve out exceptions for the United States and the countervailing pressures that preclude the United States from achieving immunity. Rather than striving to exempt itself from international human rights norms, the United States could turn to the other form of exceptionalism—exceptional leadership–and reclaim its role as a champion of human rights.

[29] In January, 2009 we will have a new administration in Washington and a new opportunity to build a culture of human dignity and human rights. The new administration should reject the negative exceptionalist approach to international law and adopt a posture of leadership in promoting human rights. Both specific and broad steps would signal this turnaround. Specifically, the United States should ratify the International Criminal Court; close Guantanamo and release or prosecute the detainees; permanently close the secret CIA detention facilities; sign legislation bringing the CIA under the same interrogation restrictions as the military; and prohibit extraordinary rendition (even when the receiving country vows it will not torture). More broadly, the United States should abandon the war metaphor for fighting against terrorism and should avoid misusing human rights language as justification.

Theological Reflections

[30] What does any of this have to do with theology? Our worldviews, including our theological worldviews, contain concepts and images that support the flourishing of humans and human rights, and others that hinder human rights. They bear examination. Today, I have time to suggest just a few of these theological concepts and I will invite you to contemplate others on your own and in the discussion groups. Let’s start by looking at a typical way of connecting biblical faith with human rights–the concept of imago dei. Created in image of God, each person has inherent dignity—a concept that also undergirds the human rights assertion that all persons are equally entitled to rights, simply by virtue of being human. Rights must not be dependent on a grantor (e.g. a nation state) but rather they inhere in the human, qua human. This has been a powerful and empowering notion for oppressed persons around the globe.

[31] We can take imago dei further, however. What if we really saw God in the face of the suffering, the poor, and the oppressed—all of whom are created in the divine image? Might we see a suffering God? Lutherans have a strong theology of the cross–a God revealed in the weakness and suffering of the crucified Christ. If we truly see our God in the face of suffering humans, and even in the groaning of creation, what would that mean for our behavior? What would that do to our sense of responsibility to act in the face of oppression and to enact just laws for all? When we (and our country) fail to enact justice, we fail humanity and we also fail God. The image of a God revealed in weakness and suffering, a God who was tortured and cries out on the cross, is also an image of God crying out for help. If God suffers when humans suffer, might we be less inclined to base political debates on narrow conceptions of “national interest” and turn instead to the common interest of humanity and the creation that God loves? Might we even re-conceive “national interest” to include the common good?

[32] Just as theological images and concepts such as imago dei and a suffering God may support the protection of human rights, other notions may hinder the flourishing of a human rights culture. What factors undergird U.S. exceptionalism and what might theologians offer to these debates? The type of U.S. exceptionalism that seeks exemption from international human rights standards is founded on a number of concerns and perspectives. Today I will touch upon three of these factors that have theological implications: security, unilateralism and sovereignty. I will offer a series of questions and suggestions about these topics in preparation for our discussion groups.

[33] First, security. Attempts to exempt the United States from international human rights standards is often articulated as grounded in a concern for security. But what does security mean and for whom? Are some people and nations entitled to certain securities, such as freedom from torture, while others are not? How is security understood? Broadly? Narrowly? What types of security are most important–military security, food security, personal security? Theological insights and resources have a great deal to offer populations engaging in moral deliberation about the extent to which security can actually be achieved, the resources devoted to different types of security, and what it means to live in ambiguity and insecurity.

[34] Some might argue that security is ensured by a strong nation, exercising unilateral control and wielding military power, suggesting a mighty fortress beholden to no one and subject to no international standards. But security might also be fostered by nation states struggling to come together in agreement about how to handle threats without throwing away respect for the rights of others. And longer-term security might be fostered by recognizing the needs and equal claim of all God’s children for the basic sustenance of life. Theologians and ethicists need to be heard in these discussions.

Second, let us consider unilateralism versus interconnectedness. The attempt to achieve exemption from international standards reflects an attitude of exceptionalism that highly values unilateralism and fails to recognize the positive aspects of cooperating in an interconnected world to protect all humans from violation. In theological terms, an over-emphasis on unilateralism accompanying a view of national self-sufficiency that rejects international norms, ignores the interdependence of God’s creation. Religious leaders can lift up both the ongoing interdependence of creation and the importance of ethical attention to the common good. Such perspectives can fruitfully be brought to the table of international relations, as nations consider whether and when a willingness to live by internationally agreed standards may serve not merely the interests of one nation, but the whole of humanity.

[35] Thus, the protection of human rights through international standards may be aided by theological reflection that highlights the interconnectedness of creation–and thus of each nation-state with the rest of the world–and that recognizes the value and rights of each of God’s creatures, including their entitlement to be treated with dignity, due process, and freedom from torture and arbitrary detention.

[36] A final factor I will ask you to consider today is the notion of sovereignty. If we are to explore theological images that may impede human rights and contribute to a dangerous unilateral exceptionalism, we cannot ignore the important concept of sovereignty—both state sovereignty and divine sovereignty. State sovereignty has long been the premier defense of nation-states accused of human rights violations. State sovereignty is a cornerstone of the international legal system. Codified in the Charter of the United Nations, sovereignty protects states from outside interference. [21] Traditionally, it allowed governments wide latitude in the treatment of citizens. The Charter prohibits the United Nations from intervening in matters that are “essentially within the domestic jurisdiction of any state….”[22] Repressive governments have used the mantel of sovereignty to relegate human rights to matters of domestic jurisdiction or internal affairs—attempting to shield them from international scrutiny. The Charter, however, also contains competing principles. It affirms human rights[23] although it provides limited authority for enforcing these rights against a sovereign nation. The principles of non-interference in internal affairs can be used as a barrier to implementing human rights.[24] In addition, the Charter prohibits the use of U.N.-authorized force to protect human rights unless the human rights violations pose a threat to international peace and security.[25] Nations have used state sovereignty to actively oppose human rights scrutiny, decrying outside intervention as interference in domestic affairs.

[37] The development of international human rights law, however, has cracked the citadel of sovereignty. Codification of human rights norms has begun to make governments accountable to citizens and has made the rights of individuals a legitimate subject of international attention.[26] The growing movement for the protection of international human rights poses an ongoing challenge to unrestrained sovereignty.

[38] Contemporary culture and popular religious images, however, still venerate sovereignty—in both God and country. The autonomous sovereign nation is celebrated in the long-held popular image of the United States as “a strong, proud, muscular America, informed by ‘moral clarity’… and prepared to seek ‘national greatness.’[27] When this image is linked, as by President George W. Bush, with a vision of America’s mission as ordained by God (the “Author of Liberty”) to bring freedom around the world, a dangerous scenario emerges.[28] If the United States is acting at the behest of higher authority, it can assume an “infinitely expansible grant of authority,” warranting its assertion of influence anywhere and any way it chooses.[29] Such an inflated sense of sovereignty lacks any realistic awareness of limitation or any tragic sense of history.

[39] Such exaggerated notions of state sovereignty align well with popular images of divine sovereignty. Christian hymns are filled with praise to God the King, Lord, and ruler of all. Celebration of God’s sovereign majesty tends to highlight a particular image of divine power –almighty, omnipotent, a mighty fortress–which reflects an understanding of power as autonomous, unilateral, and exercised through control or force. Conceptions of divine sovereignty and power can shape our perceptions of the ideal or highest form of power. If divine power is viewed as absolute, all-controlling and unilateral, then the image of the highest form of human and state power may well correspond to that of the divine and contribute to an imperial view of state sovereignty and an image of state power that emphasizes control and force.[30]

[40] It behooves us to pay close attention to the language and images we use for God—not only for their theological implications, but for their translation into statecraft as well. We need not accept an imperial ideology of state sovereignty that draws its lineage from divine omnipotence. We have other resources. Jesus, for example, suggested a kingdom of God that was decidedly anti-imperial. Through a power of grace and love, inclusion of the marginalized, and a rejection of oppression, we see images of a God who does not exercise or legitimize power and sovereignty over another. The images of the powerful ruler who makes his own rules and is subject to none is the polar opposite of the God revealed in Jesus who cries out on the cross—tortured, weak and suffering.

[41] We have many resources –many images of God–from which to draw. The point is to be cognizant not only of the theological implications but also the socio-political significance of our God-language and God-images. What messages are we sending from the pulpit? From the choir loft? In our prayers? In our Sunday schools? As citizens we must act. But as theologians, ethicists, pastors and professors who both use and shape the resources of our faith, we must also re-examine and use our theologies for the flourishing of God’s whole creation.

[42] I invite us to explore in our small groups, these and other theological constructs as they interact with the important political and social realities of our day—in this case, American exceptionalism.

[43] Thank you.

Endnotes

[1] For a selection of writings that describe, explain, critique and defend various aspects of U.S. human rights policy in the post-9/11 era, see, e.g., William F. Schultz, ed., The Future of Human Rights (Philadelphia: Penn Press, 2008); Jean Bethke Elshtain, Sovereignty: God, State, and Self (Philadelphia: Basic Books, 2008) 152-158; Michael Ignatieff, ed., American Exceptionalism and Human Rights (Princeton: Princeton University Press, 2005); Anthony Lewis, “A President Beyond the Law” The New York Times (May 7, 2004); Joseph Margulies, Guantanamo and the Abuse of Presidential Power (New York: Simon & Schuster, 2006): Michael Ratner and Ellen Ray, Guantanamo: What the World Should Know (Vermont: Chelsea Green Publishing, 2004); Kenneth Roth, “Misplaced Priorities” Harvard International Review 24:3 (Fall 2002) 14-19; and Richard A. Wilson, ed., Human Rights in the ‘War on Terror’ (Cambridge: Cambridge University Press, 2005).

[2] For historical treatments of the development of international human rights law, see, e.g., Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999); Henry Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals (Oxford University Press, 2000).

[3] I am grateful to Barbara Frey for sharing her unpublished research and writing on the history and case studies of U.S. exceptionalism. I draw on her work to provide the general legal background and historical human rights foundations for today’s presentation. Frey is the Director of the Human Rights Program in the College of Liberal Arts at the University of Minnesota.

[4] For comprehensive information on treaty ratifications see “Ratification of International Human Rights Treaties” on the website of the University of Minnesota Human Rights Library, http://www1.umn.edu/humanrts/research/ratification-index.html

[5] For example, “regarding ratification of the Race Convention, the ‘Helms Proviso’ intends to nullify the obligation to conform U.S. law to the Convention.” 140 Congressional Record S7634 (daily ed. June 24, 1994) (Statement of Sen. Pell) in David Kairys, ed., The Politics of Law: A Progressive Critique (3rd edition) (Basic Books, 1998) 238 fn 39.

[6] The case study of the International Criminal Court, below, illustrates this phenomenon.

[7] http://www1.umn.edu/humanrts/research/ratification-index.html

[8] See Sarah B. Kaysen and Carl Sewall, The United States and the International Criminal Court: National Security and International Law (Rowman & Littlefield, 2000). I am indebted to Barbara Frey, Director of the Human Rights Program in the College of Liberal Arts at the University of Minnesota for sharing her personal experience with the Rome process, as well as her research and analyses of the U.S. role in the ICC, via her unpublished papers and personal communications.

[9] Ibid.

[10] Ibid.

[11] These agreements protect a broad scope of U.S. personnel including current or former government officials, military personnel, and other U.S. nationals. Ibid.

[12] For a legal analysis of the bilateral impunity agreements see Human Rights Watch, “United States Efforts to Undermine the International Criminal Court” at www.hrw.org/legacy/campaigns/icc/docs/art98analysis.

[13] Human Rights Watch, “U.S.: ‘Hague Invasion Act’ Becomes Law,” August 2, 2002,
http://www.hrw.org/en/news/2002/08/02/us-hague-invasion-act-becomes-law.

[14] In December 2003, Ambassador Bremer, on behalf of the U.S. Coalition Provisional Authority (CPA), approved and signed into law the Statute of the Iraqi Special Tribunal.

[15] Frey, see above, note 8.

[16] This was one of the two reservations, five understandings, one proviso and two declarations included in the Senate’s advice and consent.

[17] Other treaties to which the United States is a party, e.g., ICCPR and Geneva Conventions, also prohibit torture and make clear that no exceptions apply to this prohibition.

[18] Richard Wilson, ed. Human Rights in the ‘War on Terror’ (Cambridge University Press: 2005) 17.

[19] Department of Justice Office of Legal Counsel, “Memorandum on Standards of Conduct for Interrogation [under 18 U.S.C. Sections 2340-2340A]” August 1, 2002 (known as the “Bybee memo”). See also, Human Rights Watch, “The Next Attorney General Must Renounce Torture” October 15, 2007, http://www.hrw.org/en/news/2007/10/15/next-attorney-general-must-renounce-torture

[20] The United States has condemned these abuses when committed by other countries: Binding/shackling (China, Eritrea, Iraq, Libya, Pakistan); forced nudity (Egypt, North Korea, Syria, Turkey); solitary confinement (China, Iran, Iraq, Jordan, North Korea, Pakistan, Tunisia, Turkey); threatened attacks by dogs (Libya); excessive heat/cold (North Korea, Turkey); forced positions (Burma, Iran, Israel, North Korea, Syria, Turkey); sleep deprivation (Indonesia, Iran, Israel, Jordan, Libya, Pakistan, Saudi Arabia, Tunisia, Turkey). List compiled by Barbara Frey, Director of the Human Rights Program in the College of Liberal Arts at the University of Minnesota.

[21] Nancy D. Arnison, “International Law and Non-intervention: When Do Humanitarian Concerns Supersede Sovereignty?” The Fletcher Forum of World Affairs, 17:2 (Summer 1992) 199.

[22] UN Charter, Article 2, paragraph 7.

[23] “With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: . . . c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” UN Charter, Article 55; see also Ibid. Preamble, Article 1, paragraph 3, and Article 56.

[24] Arnison, 202.

[25] UN Charter, Chapter VII.

[26] Arnison, 199-202.

[27] William Schultz, The Future of Human Rights, 4; Andrew J. Bacevich, The Limits of Power: The End of American Exceptionalism (New York: Metropolitan Books, 2008) 6-13.

[28] Ibid., 74. See also Catherine Keller, God and Power: Counter-Apocalptic Journeys (Minneapolis: Fortress Press, 2005) 18-24.

[29] Ibid., 75.

[30] Keller, ibid., 25-31. Understandings of divine power and sovereignty can also influence conceptions of household sovereignty and gender relations.