The tragic events of the past months, including the Taliban’s murder of 132 schoolchildren in Peshawar, Boko Haram’s mass slaughter of civilians in Nigeria, and Al Qaeda’s massacre of the staff of Charlie Hebdo in Paris, have re-ignited a debate about the root causes of terrorism and its prevention. The debate centers largely on efforts by foreign governments in the Islamic world to effectively execute counter-terrorism measures against known terrorist organizations, including defeating their weaponry and propaganda. But little has been written on what is, arguably, the most potent instrument fueling the perpetrators’ terrorism: anti-blasphemy laws. A closer look at the anti-blasphemy laws of Pakistan, Indonesia, and Nigeria helps illustrate a potentially significant correlation: nations that criminalize blasphemy tend to foster an environment where terrorism is more prevalent, legitimized and insidious.
Many celebrate international law as a way to compel states to protect human rights. Often it serves this role. But sometimes it has the reverse effect: states use international agreements to circumvent individual rights in domestic law. For example, the United States reportedly relied on Italy’s consent to render a terrorist suspect from the streets of Milan into secret detention. Pakistan seems to have authorized U.S. lethal strikes against Al Qaeda members without regard to rights protections in Pakistani law.
This Article uses the under-examined phenomenon of international consent to the use of force to explore the larger question of how states use international law to circumvent individual rights. International law facilitates these rights violations by embracing a principle termed “supremacy.” Supremacy requires a state to prioritize its international obligations over its domestic laws. This means that a state may rely on another state’s consent to an agreement without asking whether that consent violates the rights of individuals in the consenting state.
To minimize this manipulation of international law, the Article proposes that states receiving consent to use force bear a “duty to inquire” to ensure that the state consenting to the use of force is acting in a manner consistent with its domestic laws. This solution challenges international law’s traditional approach to supremacy. The Article shows why a more functional approach to supremacy for international agreements that operate at the intersection of national security and individual rights will advance the goals of international and domestic law more effectively.