But since they’re not, Ben is of course right that pirates should be detained if they’ve done bad things. That said, I’m not sure it’s fair take the U.K.’s apparent move not to detain some pirates to be the human rights law failure Ben does.
For one thing, the flip side of the story of this particularly silly decision out of the British Foreign Office is the larger story about the United States and (wait for it) France working vigorously together (with the U.N.) to crack down on (and detain) pirates off the Somalia coast. For another thing, it’d be reasonable to ask whether Britain’s skittishness about anti-pirate coalition efforts here is bound up with its ongoing discomfort working with the United States in detention operations generally (in light of our recent track record of torturing folks we detain). In any case, I wouldn’t claim the U.K. decision as an unalloyed victory for human rights. But I always balk a bit at generalizing from this kind of one-off case. Just because the occasional O.J. Simpson trial makes the criminal justice system look loopy doesn’t mean we throw the whole thing out and start from scratch.
Now, Ben’s larger question about the potential dilemma posed by nonrefoulement obligations is an important one. (Nonrefoulement generally refers to treaty obligations not to send individuals back to countries where they’re likely to face some horrific abuse of their own human rights.) The U.K. is right that they have treaty obligations not to send detainees back to places where they’re likely to be tortured. So what’s a well-meaning nation to do with the pirates (or Gitmo-bound terrorists) it arrests? Here, I’d say piracy is a much easier case. It could be that there’s some important law-of-the-sea rules I don’t know about (so guidance here most welcome), but my guess is piracy pretty much everywhere is a crime. And if there are regulatory gaps in maritime security law that make it not a crime (or not prosecutable except in the home country of the pirate), then those laws need to be fixed. Not a fix: setting them free in any country where they’ll either be tortured or be set free and go about torturing folks themselves. In all events, I’m not sure it’s possible to blame human rights law for much complicating this.
Gitmo, as Ben well knows, is a whole other kettle of fish because, among other reasons, many of the detainees there don’t seem to have committed any crime or, it is often asserted, haven’t committed any crime we can reasonably prove. So without wading into those treacherous waters (happy to get back to that debate in another post sometime, Ben), let’s focus on the folks who actually pose the nonrefoulement question. These are the detainees we’ve decided we want to let go from Gitmo but just don’t know where to put them when they’re freed—because they face torture in their home country and because no other country in the world is willing to take in a former resident of Gitmo even after the U.S. government has publicly concluded he poses no threat to us.
Here I’d say this isn’t a dilemma, it’s where the human rights rubber meets the road. When the United States, the United Kingdom, and a host of other nations signed onto the treaties that create asylum obligations, they were making a commitment to take in those facing gross human rights abuse overseas. It’s possible that the United States would be having more success placing some of these (dare it be said, innocent) Gitmo detainees with other asylum hosts if we hadn’t spent much of the past seven years telling the rest of the world that they were all the worst of the worst. Or making it clear to the rest of the world how little we care what they think. But feel free to come back at me on this. …