The Obama Administration’s First Year and IHL: A Pragmatist Reclaims the High Ground
Eric Talbot Jensen & Geoffery S. Corn, 𝘛𝘩𝘦 𝘖𝘣𝘢𝘮𝘢 𝘈𝘥𝘮𝘪𝘯𝘪𝘴𝘵𝘳𝘢𝘵𝘪𝘰𝘯’𝘴 𝘍𝘪𝘳𝘴𝘵 𝘠𝘦𝘢𝘳 𝘢𝘯𝘥 𝘐𝘏𝘓: 𝘈 𝘗𝘳𝘢𝘨𝘮𝘢𝘵𝘪𝘴𝘵 𝘙𝘦𝘤𝘭𝘢𝘪𝘮𝘴 𝘵𝘩𝘦 𝘏𝘪𝘨𝘩 𝘎𝘳𝘰𝘶𝘯𝘥, 12 Yᴇᴀʀʙᴏᴏᴋ Iɴᴛ'ʟ Hᴜᴍ. L. 263 (2009).
In a list of ‘desk side reminders’, allegedly originating with General Colin Powell, there is one towards the end which says ‘the window for changes is the first year’. It is unlikely President Obama follows these reminders, but it is nonetheless worthwhile to consider how his decisions – the decisions of the Commander in Chief of the sole remaining military superpower – impacted the application and development of international humanitarian law during the year when his window of opportunity was open. President Obama's first year in office can be defined by two words: pragmatism and commitment. His pragmatism is reflected in the decision to continue to pursue the armed conflicts against transnational terrorism, and his refusal to abandon the legal and policy positions of his predecessor that lodge that struggle squarely within an armed conflict paradigm. His commitment is reflected both in his decision to continue the armed struggle against transnational terrorism, and in the actions he has taken to demonstrate US commitment to fundamental humanitarian principles of the law, and to abandon the policy of legal exceptionalism that defined his predecessor's ‘authority without obligation’ interpretation of the law as it applied to this armed conflict. Any doubt about these dual pillars of his approach to transnational terrorism was eliminated when he delivered his Nobel acceptance speech. In that speech, he challenged the international community to accept the continuing need to meet the threat of transnational terrorism with military force. However, he also emphasized that maintaining the moral high ground in the conduct of hostilities – even when confronting an immoral opponent – is at the very core of the American military tradition. This essay will review what the authors consider the President’s most significant humanitarian law related decisions during his first year in office. It will focus on six major aspects of international humanitarian law: 1) the definition of enemy combatant; 2) detainee judicial review; 3) military commissions; 4) self help measures in self-defense; 5) fundamental guarantees under customary international law; and 6) the US position vis a vis the International Criminal Court.
© T.M.C. Asser Instituut and the Authors 2009
12 Yearbook Int'l Hum. L.
Yearbook of International Humanitarian Law