. . . national-security matters. European nations, for example, have accepted the 1977 Protocol I to the Geneva Conventions, while the United States has rejected it. Protocol I extends protections to terrorists and imposes an exacting legal regime on combat operations, relying on such concepts as “proportional” use of force and rigorous distinction between military and civilian targets. That is, Protocol I potentially converts traditional combat operations into war crimes. Similarly, though the U.S. accepted the torture provisions of the U.N. Convention Against Torture (UNCAT), our nation rejected the UNCAT’s placing of “cruel, inhuman, and degrading treatment” on a par with torture. By cont...

. . . national-security matters. European nations, for example, have accepted the 1977 Protocol I to the Geneva Conventions, while the United States has rejected it. Protocol I extends protections to terrorists and imposes an exacting legal regime on combat operations, relying on such concepts as “proportional” use of force and rigorous distinction between military and civilian targets. That is, Protocol I potentially converts traditional combat operations into war crimes. Similarly, though the U.S. accepted the torture provisions of the U.N. Convention Against Torture (UNCAT), our nation rejected the UNCAT’s placing of “cruel, inhuman, and degrading treatment” on a par with torture. By contrast, Europe generally accepts the UNCAT in toto.

#pageAs long as we haven’t ratified a couple of bad human-rights treaties, why should we care that Europe considers them binding? Because of the monstrosity known as “customary international law,” of which Koh is a major proponent. This theory holds that once new legal principles gain broad acceptance among nations and international organizations, they somehow transmogrify into binding law, even for nations that haven’t agreed to them. That is, the judgment of the “international community” (meaning, the judgment of left-wing academics and human-rights activists who hold sway at the U.N. and the European Union) supersedes the standards our citizens have adopted democratically. It is standard fare among transnational progressives to claim that Protocol I is now binding on the United States and that what they define as cruel, inhuman, and degrading treatment is “tantamount to torture.”


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