Avoiding an International Law Fix for Terrorist Detention
Deborah N. Pearlstein
Benjamin N. Cardozo School of Law
Creighton Law Review, Forthcoming
Princeton Law and Public Affairs Working Paper No. 08-005
Broad international counterterrorism efforts aimed in part at the detention of terrorist suspects have prompted renewed debate about the adequacy of the Geneva Convention regime and associated international law for addressing the current needs of international security. Criticisms that current law leaves unacceptable gaps in the regulation of terrorist detention, or is otherwise unclear, have led to a growing number of calls for new or revised international law governing state counterterrorism operations. This essay explores the primary arguments in favor of pursuing new international law in this realm, and ultimately rejects the new-law approach. While recognizing that existing international law is unclear in some respects, the essay identifies two basic reasons why pursuing new international law in this arena is not a useful next step, particularly for the United States. First, many of the "gaps" new-law advocates see in international laws regulating terrorism were left with the understanding that they would be filled in by other existing bodies of national and international law, including domestic criminal law. The existence of multiple, potentially relevant bodies of law governing different aspects of state action against terrorism is not of itself a problem; indeed, different governing laws usefully afford states a meaningful array of different policy options in responding to different degrees of terrorist threat. Second, to the extent international law is unclear on key questions surrounding detention, a U.S.-driven effort to negotiate a new formal (or informal) international understanding of these topics is unlikely to satisfy the interests of many U.S. proponents of a revised international framework, and otherwise unlikely to succeed anytime soon. Indeed, a different U.S. administration may well conclude the particular "clarifications" current proponents have in mind are not helpful to the security interests of the United States. Any engagement with international partners on these matters should be preceded by a strategic reassessment of the role of detention in U.S. counterterrorism policies. It may be that the outcome of this project will render moot the enormous task of international re-negotiation of core ideas in the international law of war.
Number of Pages in PDF File: 18
Date posted: July 15, 2008