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When persons or communities perceive their actual survival to be
at stake, they rarely let commitments to upholding the law stand
in their way as they endeavor to defend themselves. And if the choice
really is between legality and survival, then it is perfectly obvious
that any sane person, and, indeed, any sane state, would choose
survival. It is the purest hypocrisy to pretend otherwise, or for
others, not at risk, to insist that those who are must behave with
this kind of ahuman fidelity to legal norms. And it is the purest
wishful thinking to pretend that a community with its collective
back to the wall and any common sense would make any such a choice.
If this is right, then thinking about the role of the law in both
the response of the United States and in other nations' responses
to the attack on September 11, 2001, must derive first and foremost
from the question of whether the threat posed by terrorism is really
that existential. There is little doubt that an objective reading
of the facts would seem to impose the conclusion that the Bush administration
has acted and continues to act in a number of ways that seem to
defy international law. The question, and it is not, finally a legal
one but a political and moral one, is whether what is taking place
is a vast and tragic over-reaction, unnecessary in the instance
and dangerous in terms of the precedents it sets, or whether it
is a regrettable necessity.
In
fact, everybody knows this, however loath they may be to admit it.
How could they not? History is replete with examples of behavior
similar to that currently being engaged in by the US government.
Indeed, in most internal emergencies, the suspension of rights and
granting of extra powers and authority to the state, and, more specifically
to the police, the security services, and the military, has a name:
martial law. But this is not only the case, say, when the crisis
is political or military. In public health epidemics -- tuberculosis
is perhaps the best example of this -- the authorities claim to
no longer be bound by normal legal standards. People who refuse
to take their medicine are subject to incarceration without trial
or appeal. To be sure, the conviction that legal codes, whether
municipal, national, or international, are an obstacle in assuring
the national defense, the quelling of a riot, or the containing
of an epidemic of disease, may be entirely mistaken. But in most
societies, it has been and remains the immediate response of authorities
to emergencies. Again, this is the first thing that needs to be
said about the American government's response to the events of September
11, 2001.
For all the alarmist talk about the return of fascism or McCarthyism
to the United States, the end of the era of rights, and the assault
on international law, the fact is that, in specifically American
historical terms, what the Bush administration has done lies very
much in the mainstream traditions of how American governments behave
in wartime. Lincoln's suspension of the law of habeas corpus is
only the most celebrated example of such an action. And while European
public opinion and the international legal establishment has been
horrified by the steps taken by the US in the aftermath of September
11, a skeptical American observer would presumably point out that
suspension of legal safeguards was an integral part of the German
and Italian governments' effort to defeat terrorist groups like
the Red Brigades and the Red Army Fraction in the 1970s. More to
the point, all major European nations have toughened their own laws
and curtailed civil liberties in the aftermath of September 11 --
in some cases, like Britain, more radically than in the United States.
Indeed, it is probably fair to say, as the French newspaper Liberation
put it, that rights have been a "collateral victim" of
the September 11 attack throughout the world and will continue to
be so for the foreseeable future.
The Missing Debate about September 11
 In
public, American officials, like their European counterparts, would
doubtless deny this. Part of the problem about so much of the debate
(of which there has not been nearly enough in any case) in the aftermath
of September 11 has been the level of hypocrisy on all sides, with
officials who are clearly determined on bending the law pretending
this poses no problem and civil libertarians determined to protect
it pretending that the terrorist threat has not challenged their
confidence in the law's ability to protect. In any case, it clear
that legal safeguards that were once viewed as unchangeable are
now being changed, as in the case of the loosening of the prohibitions
in Germany about eavesdropping on private communications. At the
same time, regimes like that of Islam Karimov in Uzbekistan, with
abysmal human rights records, now seem to have only to agree to
participate in the "war on terrorism" to ensure that the
United States will ignore what they do internally. And such complaisance,
or, to put the matter more directly, moral indifference in the making
of US foreign policy is hardly restricted to relatively unimportant
countries like Uzbekistan or Turkmenistan, or even to Pervez Musharraf's
dictatorship in Pakistan. That could at least be justified in realpolitik
terms of these states bordering on Afghanistan and their leaders,
however unsavory, being essential to the American war effort in
Afghanistan.
In
reality, though, the fight against terrorism is now the template
through which Washington views the world. (It is also the template,
and the consequences for international law may yet prove to be just
as serious, through which Europe, for all its sanctimony with regard
to the US, is coming to view immigration, but that is another question).
As a result, there has been a rapprochement between the United States
and both Russia and China, regimes that were traditionally viewed
by American administrations as rivals and that are, in any case,
guilty of immense internal repression either in all (China) or part
(Russia) of their countries. Indeed, in the immediate aftermath
of September 11, it was possible for the writer Edward Luttwak to
compare this reconciliation (after all the Bush administration had
come into office determined to toughen US policy toward China and
skeptical of Vladimir Putin), and the policy implications it seemed
to bear, with the formation of the Holy Alliance in post-Napoleonic
Europe.
Thus, if to some extent a new world order has been created in the
aftermath of September 11, its marriage has been celebrated over
the broken carcass of human rights and of international law. As
with any emergency, the threat is seen as everywhere and in everything.
Even supposedly black letter law is being challenged, as, most famously,
in the case of the US government's refusal to accept that in international
law only a tribunal, and not an administration, let alone a military
figure, is empowered to judge whether an enemy prisoner is or is
not entitled to the protections afforded to legitimate prisoners
of war by the Geneva Conventions, or, instead, is a so-called unlawful
combatant. And while European governments, some of whose citizens
are being held by the US military in the Guantanamo prison camp,
have protested this particular decision, the refocusing of domestic
security policy throughout Europe -- in the case of France, apparently
now involving the military itself in internal security efforts --
in terms of an ongoing war against terrorism also seems to involve,
from what little can be gleaned from public sources, the ‘giving
in' that always accompanies emergencies to the state's historical
temptation to circumvent and ignore the law, or even to make new
law when it is needed.
But while it can be demonstrated that there is nothing historically
anomalous about any of these developments, this says little or nothing
about what their implications are for the future. After all, in
some cases the curtailment or abrogation of civil liberties and
the rule of law has had the gravest and most terrible consequences,
as in the case of Latin America in the 1970s. At other times, as,
for example, in the case in Germany in the same period of the firing
of radical teachers suspected of sympathy with the Red Army Fraction
-- the so-called berufsverbot -- the effects of what, whatever
its necessity, was unquestionably extra-legal repression, was transitory.
It is simply impossible to say at this point where the measures
the Bush administration has undertaken will fall on this scale of
harm. And since opinions differ so widely about the seriousness
of the terrorist threat, it is difficult to make even a crude calculus
about whether ‘this time' the emergency is such that what,
in emergencies, so often come to be called by those who would be
rid of them legal niceties have to be ignored, or whether, in fact,
the real damage to America and the countries of Western Europe will
actually turn out to be the degrading of both domestic and international
law.
For despite what at least some human rights activists, civil libertarians,
and international lawyers have claimed, the choice is not an easy
one. In an ideal world, it would be possible to amend the law to
cope with an emergency, but emergencies, by their very nature, preclude
such a deliberative and democratic process. States in such extremis,
like individuals in extremis, are reduced to making a great deal
up as they go along -- often getting it wrong in the process. But
again the question is whether what has been mistaken, like, say,
the process of determining combatant status for al-Qaeda and Taliban
detainees, will be rectified when the sense of emergency passes
-- as, however difficult it is to imagine this on the first anniversary
of September 11, it will -- or whether the decisions made in an
emergency and on a largely ad hoc basis are in reality genuine harbingers
of a new order, and are likely to be expanded rather than reconsidered.
National Security and the Paradox of Humanitarian
Law
Again, while it is understandable that legal activists are appalled
by some of the measures the Bush administration has taken, measures
that in some cases at least are seemingly either in direct contravention
of the laws of war or are based on an entirely novel and, in the
minds of most legal scholars, spurious and sophistical interpretations
of those laws, it would be a mistake for critics of the administration's
approach to simply say that all would be well had the US government
followed a more orthodox and conventional approach. Obviously, that
is true in legal terms, since the overwhelming majority of legal
experts -- figures like Yale University's Ruth Wedgwood to the contrary
notwithstanding -- find many American decisions unjustifiable. But
law and morality are not the same thing, and the Bush administration
would be perfectly within its rights to argue that its duty to defend
the country from the possibility of a biological attack that could
kill hundreds of thousands is, at this moment in time, more important
than the rights of terrorist prisoners who may have plotted such
an attack before they were captured and whose agents may already
be in place.
Paranoia? After the attacks on the World Trade Center, that is a
difficult case to argue. Nor is it enough simply to condemn the
US alliance with unsavory foreign regimes in the ahistorical, apolitical
language of international law and human rights activism. After all,
even a human rights activist, who, by his or her calling is obliged
to be absolutist (once any moral relativism about human rights norms
creeps in, the basis for activism evaporates), will presumably not
argue that the US should have refused to make common cause with
Stalin in 1941, even though Stalin was unquestionably the greatest
mass murderer of the 20th century. The reason, of course, is that
World War II was indeed a genuine emergency, and Roosevelt and Churchill
were right to insist that if an alliance with the devil -- and Stalin
was the devil -- was necessary to defeat Hitler then that pact had
to be made. What those who criticize the exiling of human rights
from the war against terrorism are really saying is, of course,
that the terrorist threat is not as dangerous as all that. For if
they thought it was, doubtless many of them would not oppose the
Bush administration's actions so vociferously.
The paradox of international humanitarian law is that it is meant
to impose certain limits on how states make war, but assumes that
these states will not be so persuaded that their own survival is
at risk if they comply fully that the choice becomes one pitting
international treaty law against natural law. One can, for example,
be for a ban on landmines in general, and applaud its realization,
and yet recognize that had Rwandan Tutsis had mines to protect them
from the genocidaires in April, 1994, they would not have been morally
obligated to eschew the use of these mines and go to their certain
deaths. To paraphrase the American jurist's phrase about the first
amendment, the laws of war are not a suicide pact. But to insist
that the issue of the American government's decision in the aftermath
of September 11 to circumvent, reinterpret, try to neutralize, and/or
try to ignore those elements of international law -- above all international
humanitarian law -- that seemed to it to stand in the way of defending
the United States and prosecuting a worldwide campaign against terrorism
is complicated, is not to pretend that this extraordinary assault
on what seemed to be settled law has not taken place.
To the contrary, as a result of September 11, the revelations about
the scope, breadth and ambition of international terrorism, and
the determination of the Bush administration not just to defend
the United States, but to root out this terrorism once and for all,
international law is under threat as it has not been since the Second
World War. In all likelihood, unless the administration has a sudden
and radical change of heart that assault will only intensify. To
the dubious legal principles adduced by the administration to justify
a worldwide war on terrorism has now been added the doctrine of
pre-emption, which effectively permits the United States to strike
at its enemies -- or, at least those of its enemies it claims are
likely to attack it -- at will. It is an assertion not of law but
of imperial authority, and, while, as such, it is hardly novel --
the British government, after all, made similar claims for its rights
on the high seas a hundred and fifty years ago -- it is no less
sweeping and imperial for that. To paraphrase Dryden, both those
who fear American hegemony and those who believe, as most people
in Europe now do, that the road to peace lies through law and the
road to war through the traditional exercise of power, are right
to see in these developments an untuning of the civilizational sky.
Indeed,
one of the great problems with the debate about American actions
in the aftermath of September 11 has been what has not been said.
US government officials have been understandably unwilling (at least
for the most part) to say in public what many of them say in private,
which, when boiled down, amounts to ‘damn the law; it wasn't
made for these times and, in disregarding it, we are serving the
higher morality of the world's real interests.' For their part,
international lawyers have been understandably eager to keep the
conversation limited to legal frameworks. But their inability to
engage politically and strategically, or to accept that there may,
indeed, be a higher morality beyond the law, has rendered their
arguments quite unconvincing to American policymakers. It is a dialogue
of the deaf.
US Imperialism and the International Rule of Law
It is also a dialogue in which the subtext is the increasing divide
between an American and a European perception of the role of law
in human affairs. A number of writers, notably Robert Kagan and
Robert Cooper, have written brilliantly on this subject. The American
view, ably summarized by Kagan, has been that, in effect the world
of law and the world of force are alien to each other, and that,
where international affairs are concerned, the Europeans now live
in the latter -- the realized dream of Kant's commonwealth of perpetual
peace -- while the Americans inhabit the former -- the Hobbesian
world of threat and machtpolitik. The originality of Kagan's approach
lies in his attempt to take competing claims of virtue out of this
debate. Where he goes wrong, however, is in imagining the European
faith in law and its collective effort in, almost literally, trying
to 'transcend' power in the traditional sense simply derives from
its military weakness and its sense that the continent has a new
mission civilisatrice of exporting law-based politics to the rest
of the world. As the former French foreign minister, Hubert Vedrine,
has pointed out, Europe's approach is a byproduct of its own conscious
political decision, in the aftermath of World War II, to extirpate
nationalism.
 Even
were Kagan to agree, he would still presumably argue that this perception
about the rectitude of force -- antithetical to that of the mainstream
view in the United States -- is what accounts, whatever its political,
moral, or material origins, for the European view that the Americans
have gone too far in the aftermath of September 11. Some Europeans,
notably Vedrine and Robert Cooper, have, however, made a far subtler
argument. In particular, Cooper has insisted repeatedly [he does
so again in this series of articles] that law and force are not
alien. But while he is a realist in his understanding that force
may sometimes have to be used, he remains committed to a post-imperial,
post-unilateral idea of that use of force that flies in the face
of the conventional wisdom in Washington. For in the wake of September
11, it is clear that the United States is increasingly determined
to be an imperial power. That, rather than specific violations,
misinterpretations, or end runs around international law, is the
real transformation we have witnessed -- and the real radicalism
of the Bush administration. For they are not, it turns out, realpolitiker
-- indeed, in the Iraq debate, the realist greybeards like Scowcroft
and Baker have opposed the use of force. Instead, they are right-wing
revolutionaries in the mould of Ronald Reagan, and they do not accept
Cooper's claim that we live in a post-imperial world or that globalization
and the sway of international law stand or fall together.
In
fairness, it is likely that the threat the new age of internal war
and terrorism poses to the edifice of international law would have
become apparent sooner or later. If anything, September 11 only
hastened and focused the process. For the laws of war were largely
written to cope with the problem of interstate wars, despite some
effort to confront new realities contained in the Additional Protocols
to the Geneva Conventions. And for decades, the reality of war has
been veering away from the norms that the law was meant to address.
States in many parts of the poor world no longer have a monopoly
on violence, traditionally a defining characteristic of a legitimate
state; civil wars are almost always fought a outrance, since
that is their savage nature (to imagine such conflicts can be governed
by law is the purest wishful thinking); and it has become far more
common today to see military power actually exercised in the name
of repressing the civilian population (Indonesia), in suppressing
an uprising by an ethnic minority (Turkey), or to continue to dominate
a subject people (Israel) than in defense of one nation against
another. And the law has been largely powerless, despite some promising
but decidedly (and in my view permanently) marginal developments
like the ad hoc tribunals for former Yugoslavia and Rwanda and the
International Criminal Court.
Under these circumstances, surely the crisis of international humanitarian
law was an accident waiting to happen. For when law and material
reality no longer coincide, it is, of course, law that must give
way. The ingenuity of Robert Cooper's approach has been that he
has managed to resituate an energetic, indeed a revitalized use
of force to combat both the terrorists and the warlords of the 21st
century -- Osama Bin Laden and Sierra Leone's Foday Sankoh, as it
were -- within the tradition of multilateralism and the rule of
law. There are problems with his view, notably his account of globalization,
which is uncharacteristically uncritical. But were his recommendations
to be accepted in Brussels, a Europe that would no longer run away
from the use of force but would genuinely understand its use differently
from that of its American ally starts to become imaginable. Whether
Cooper's erstwhile colleagues in the British government, and their
opposite numbers in Berlin and Paris, will have the imagination
to undertake such a rethinking remains an open question. And until
they do, that leaves the field in the sole possession of an American
vision of imperial power humanely used. But there seems little question
that one of the main ways in which such an imperium will change
the way the world really works is by radically diminishing the importance
of international law. It is a process already well under way, and,
seemingly at least, quite unstoppable.
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