“If international law is , in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law”. -Hersch Lauterpacht
There can be no denying that the United States and its President play an instrumental role in strengthening or weakening international law. And not deniable, the ideological, legal, and ethical moorings imbibed in international law have been set aside by the both US Presidents George W. Bush and Barack Obama in the post 9/11 world. The US astutely but controversially used the UNSC intervention to use force thereby entering the grey-zones of international law– whose answers yet seem ambiguous. And yet, Trump’s political moves have created great challenges for global law order. The part one of this debate deals with Bush junior and Obama’s controversial role vis-à-vis the US global war on terror (GWOT) while part two deals with President Trump’s era.
Historically put, the US Government has long adopted double standards when it comes to respecting international law, especially in the setting of national security issues. It promotes generalized respect for the Rule of Law in world politics, is outraged by violations of international law by its enemies, and chooses selectively when to comply and when to violate. It seems clear that the United States, and the American people, would have benefited over the years from a foreign policy carried out subject to the discipline of international law. Succinctly, the U.S. government’s vision of international law in the post 9/11 world has been defined through the identification of its national self-interests visualized through the encounter with America’s Other– meaning thereby a polity, a group of individuals, a state or non -state actor working on a political project with global and universal aspirations conflicting or at least diverging from American utilitarian ideals and its unilateral world view.
While academically speaking, the impact of the sovereign and non-sovereign actors hold a paramount influence in this regard, marked by the very role of American allies; states, municipalities, and localities of the United States; government bureaucracies; the media; courts; nongovernmental organizations (NGOs); intergovernmental organizations (IGOs); and committed individuals. Given this logic, the actual War on Terror has put at the forefront of the political arena individuals and societies with conflicting views and aspirations about how the world ought to be. The ongoing transnational war on terror faces the challenge of addressing transitional justice– by putting victims and their dignity first, it signals the way forward for a renewed commitment to making sure ordinary citizens are safe in their own countries – safe from the abuses of their own authorities and effectively protected from violations by others.
Generally, it is believed that war is only an armed conflict that occurs between states. Since al Qaeda or the ISIS is not a state, the reasoning goes, there can be no armed conflict and no application of the laws of war. Yet this conclusion is contradicted by the terms of the Geneva Conventions and consistent international practice
Generally, it is believed that war is only an armed conflict that occurs between states. Since al Qaeda or the ISIS is not a state, the reasoning goes, there can be no armed conflict and no application of the laws of war. Yet this conclusion is contradicted by the terms of the Geneva Conventions and consistent international practice. A provision intrinsically common to all four Geneva Conventions formulates certain minimum standards of treatment of prisoners of war and civilians that apply “[i]n the case of armed conflict not of an international character” occurring within the territory of a Party.
As for the advocacy of humanitarian intervention, a state’s right of self-defense against an imminent or actual armed attack by non- state actors, Sir Daniel Bethlehem published his arguments in the American Journal of International Law in 2012. Yet as recently disclosed in documents revealed by WikiLeaks, the principles were the product of intergovernmental discussions led by the United States to secure greater understanding of the jus ad bellum that had their origins in the controversial Bush doctrine indoctrinated by the NSS in 2002. And in 2017, the UK Attorney General said that the UK follows and endorses Principle 8 of The Bethlehem Principles, as did Australia’s Attorney General. Though Principle 8 reflects an expansion of the right of anticipatory self-defense by providing a new standard of imminence to enable preventive military strikes against threats outside traditional conflict zones, these selective arguments do not suffice to satisfy the international legal community. For the record, the inventiveness of the Security Council in the use of its Chapter VII power can also be sited before 9/11, in the creation of judicial bodies in the 1990s. These courts were meant to maintain peace and security. While by establishing the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY), the UNSC ventured into a legislative role to resolve the international crisis.
Interestingly, the same approach is duly fostered in the post 9/11 era with Resolution 1373. However, the question remains: Were the 1990s actions mentioned, truly legislative acts? Per se, these contradictions-led paradoxes pose some fundamental queries: Is the United States, an international actor, different from all other international actors? If so, how is it different? What makes it different? How does American sovereignty fit into a larger conception of international law given the fact the US’ ongoing transnational war has glaringly challenged the writ of human rights law regime? Sadly, the American legal experts have provided no proper answers yet.
In the given appraisal, it indicates that the Bush Administration took a maximalist approach toward the jus ad bellum and jus in bello– thereby dashing off broad claims about what international law permitted in resorting to force and detaining and interrogating Al Qaeda members. Whereas, the Obama administration fostered more minimalist policies that depicted a narrower scope of action than what international law permits and often avoided bold rhetorical claims about what international law warrants. Though Obama’s strategic approach improved relations with allies and subsequently deferred difficult inter-agency debates, it also incurred costs by slowing the development of international law and making it more difficult for other states to interpret the precedential value of US’ actions-reflecting a US policy tilt towards the critical approach of international law.
The writer is an independent ‘IR’ researcher and international law analyst based in Pakistan