THE CONSEQUENCES OF UNLAWFUL PREEMPTION AND THE LEGAL DUTY TO PROTECT THE HUMAN RIGHTS OF ITS VICTIMS
Johannes van Aggelen
Even before 9/11 and its aftermath, international law was exposed to a hegemonic interpretation by the U.S. The question was raised whether such a position would shake the foundations of current international law. Although it was too early to conclude that the U.S.' attitude had indeed changed the foundations of international law, it was observed that the U.S. has moved away from traditional international law towards an increased use of its own domestic legal system, making it a tool for foreign policy. The adoption by Congress of the Patriot Act in October 2001 as well as the American Service-Members' Protection Act (ASPA) in January 2002 are clear examples in this regard. The various domestic legal proceedings regarding Guantánamo detainees and the ensuing obstructions to it by the Executive (e.g., the creation of Military Commissions in November 2001 and the Combat Status Review Tribunals in July 2004) confirm this trend.
Additionally, the U.S.' interpretation of preemptive or anticipatory
self-defense in the 2002 National Security Strategy, its drafting of the
illfamed
torture memoranda where in the war on terror, law, and legal ethics
have been sacrificed to a misguided notion of political expediency . . .
42 CASE W. RES. J. INT’L L. 21 (2009).
