The Abandonment of International Law After 9/11
by Richard Falk
Presentation to the Congressional Black Caucus Annual Legislative Conference 2005, Washington Convention Center, 801 Mt. Vernon Place, Washington D.C., September 21-24, 2005.
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 a 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. This pattern goes far back in American history, but it is convenient to take note of American violations of international law in the setting of the Vietnam War, as well as periodic interventions in Central and South America. I would argue that this pattern has long harmed America’s global reputation and capacity for leadership, as well as worked against its own national interest.
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. If the US Government had abided by international law, the dreadful experience of the Vietnam War would not have occurred. More recently, an observation that will be discussed further below, upholding international law would have avoided the fiasco of the Iraq War. Contrary to popular belief, respecting the restraints of international law better serves the national interest than does an attitude, so prevalent since 9/11, that international law poses inconvenient obstacles on the path toward national security.
It is important to understand that the restraints of international law have been voluntarily developed by sovereign states to protect their interests and values. Their intent is practical. It reflects the wisdom of centuries of diplomacy. International law is of particular importance in relation to uses of force in the course of foreign policy, and more generally issues relating to security, especially war and peace. The US Constitution declares in Article VI(2) that duly ratified treaties are ”the supreme law of the land.” This puts the key rules and principles of international law on a par with Congressional acts. The Supreme Court has ruled that in the event of an unavoidable clash between these two sources of legal authority, the last in time should prevail.
Let me make the general point more strongly. In a globalizing world of great complexity it is in the interest of all states, large and small, that their relations be reliably regulated by international law. This observation underpins the daily operations of the world economy and many other aspects of international behavior, including maritime safety, environmental protection, tourism, immigration, disease control. The stability of international life depends on a closely woven fabric of law as the basis for almost all activity beyond the borders of a sovereign state.
What is a cause for deepest current worry is that the United States has seemed to abandon this understanding of the relevance of law to the establishment of world order. This concern is not entirely new. It runs throughout the entire course of American history, but it has taken a serious turn for the worse during the Bush presidency, especially in the aftermath of the 9/11 attacks. Even prior to the attacks, the foreign policy of the Bush administration disclosed its disdain for widely respected international treaties. The Bush White House contended that existing and pending treaties limited its military and political options. In the early months of the Bush presidency it announced its opposition to the Comprehensive Test Ban Treaty prohibiting nuclear weapons testing, its unwillingness to submit the Kyoto Protocol regulating greenhouse gas emissions, defiantly withdrawing its signature from the Rome Treaty seeking the establishment of the International Criminal Court, and its intention to withdraw from the Anti-Ballistic Missile Treaty. Such a pattern of unilateralist hostility to international treaties and multilateral cooperation was unprecedented in American history. It led to a strong negative reaction at home and abroad. Normally friendly governments were clearly alarmed by this internationally disruptive behavior of the new American president. The repudiation of widely endorsed multilateral treaty arrangements that were generally viewed as important contributions to a peaceful world seemed contrary to common sense, as well as to the general wellbeing of the peoples of the world. These expressions of unilateralist approach did not involve violating existing international law, but rather expressed the ultra neoconservative attitude that multilateral cooperation in the security area was undesirable, limiting the capacity of America to take advantage of its status as the sole remaining superpower in the aftermath of the Cold War.
Congress is also not exempt from blame on these counts. It was in Congress even before George W. Bush came to Washington that militarist pressures were brought to bear in such a way as to oppose beneficial multilateral treaty constraints on United States policy. The Senate refused to ratify the Comprehensive Test Ban in the Clinton years, as well as being so strongly opposed to the ICC and Kyoto Protocol that there was no prospect for such treaties to be approved by the required 2/3s vote if submitted for ratification. What mainly distinguished the Bush approach to international law from that of its predecessors were two developments: its alignment of the Executive Branch with an anti-internationalist set of policies that seemed oblivious to the benefits of international cooperation; and its avowedly ideological and emphatic repudiation of treaty instruments and the restraints of international law in order to express its own approach to foreign policy premised on military dominance and interventionary diplomacy. It was this posture by the Bush leadership that frightened world public opinion. Before 9/11 a rising crescendo of domestic and international opposition to the Bush policies led to mounting criticism, especially given Bush’s dubious electoral mandate in 2000.
This concern and opposition has dramatically intensified outside the United States since 9/11 because the Bush White House has moved from its earlier hostility to multilateralism to its unwillingness to abide by fundamental international legal rules and standards that this country, along with other constitutional democracies, had previously accepted as a matter of course. These rules include humane treatment of prisoners taken during armed combat, unconditional prohibitions on torture and assassination of political opponents, and the duty to protect civilians in any foreign territory under occupation. The most important of all these legal restrictions on foreign policy is the rule of international law prohibiting non-defensive uses of force without a mandate from the UN Security Council. In his 2004 State of the Union Address President Bush told the Congress that the United States would never seek ‘a permission slip’ in matters bearing on its security. But it is precisely a permission slip that international law, and the UN Charter, requires. Such a requirement was written into the Charter largely at the behest of the US Government after World War II, seeking to bind the states of the world to a legal framework that forbade wars of aggression, what more fashionably has been recently called ‘wars of choice.’ German and Japanese leaders were sentenced to death at war crimes tribunals because they had recourse to aggressive wars, and acted without a permission slip.
The Iraq War is a notorious example of a war of choice that violates this fundamental rule of international law. As such, according to the Nuremberg Principles embodied in general international law after the conviction of German leaders for their criminal conduct, constitutes a Crime Against Peace. The American prosecutor at Nuremberg, Justice Robert Jackson, famously said to the tribunal, “..let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn, aggression by other nations, including those which sit here now in judgment.”
This pattern of illegality continues to shock the conscience of humanity. American officials have strained to redefine ‘torture’ so as to permit what the rest of the world, and common sense, understand to be ‘torture.’ The abuse of prisoners detained in Guantanamo, Abu Ghraib, and elsewhere has severely damaged America’s reputation in the world, as well as undermined its struggle against those extremist enemies engaged in terrorism. Government lawyers and their supporters in society have argued in favored of assassinating suspects in foreign countries, and justified under the terminology of ‘rendition’ handing over suspects to foreign governments notorious for their reliance on torture as their preferred mode of interrogation. The detrimental impact of such American lawlessness on the protection of human rights has been documented in great detail by such respected organizations as the American Civil Liberties Union, Amnesty International, and Human Rights Watch.
This record of abuse has badly tarnished America’s reputation as world leaders and limited the capacity of the government to get support for and cooperation with its anti-terrorist policies.
It is notable to observe that the events of 9/11 produced a patriotic surge that has endowed the Bush administration with the freedom to embark on a foreign policy aimed at ‘geopolitical preeminence,’ and only incidentally concerned with the defeat of Al Qaeda and transnational terrorism. Such a priority was stated clearly before 9/11 in the report of the Project for a New American Century. And it was acknowledged subsequent to 9/11 in the important White House document entitled “The National Security Strategy of the United States of America.” (2002) In other words, violating international law, especially embarking on wars of aggression, has been integral to the realization of preexisting American global ambitions that were politically non-viable before 9/11. To sustain a climate of acquiescence within the United States it has been necessary to rely upon a manipulative politics of fear that has largely led to a suspension of criticism, including from the US Congress. In this crucial respect, the Congress is failing in its constitutional duties by not seeking to exert pressure on the Executive to uphold the Rule of Law by insisting on compliance with international law. Perhaps, the public outrage associated with the derelictions of governmental duty in the setting of Hurricane Katrina have finally opened a space for challenging the legitimacy of the present government, and holding the leaders to account. If the political will can be mobilized in Washington the blank check on government policy issued after 9/11 can at last be voided.
But the neoconservatives in and around the White House seem unchastened. Despite the ongoing draining experience of the Iraq occupation, these foreign policy super-hawks are making belligerent noises that suggest the possibilities of further military adventures in the Middle East, targeting Syria first, and then menacing Iran. It is a sign of untamed and lawless militarism that the rightist columnist, Max Boot, writing in the LA Times on September 21, 2005, can argue that it is only targeting difficulties that make it impractical to strike at North Korea’s nuclear facilities from the air. Boot writes as if there are no legal or moral inhibitions on such aggressive uses of force at the whim of American leaders. If other governments were to adopt such a logic the world would quickly become an inferno of violence and extremism.
It is and should be a requirement of a constitutional democracy in the 21st century that a government’s foreign policy, as well as its domestic behavior, be made subject to the discipline of law. In a globalized world the extension of law to international activity is in the national interest. It keeps our leaders from embarking on geopolitical ventures that are not supported by the citizenry if fully informed. American failures to abide by international law gives others a reciprocal right to violate their legal obligations, including in relation to Americans detained abroad as prisoners. What we see instead during the Bush presidency is a refusal to uphold the most fundamental obligations of international law that are binding on all sovereign states. We also believe that the willingness of American lawmakers and media to tolerate such illegality and criminality is a byproduct of the atmosphere that has followed from the 9/11 attacks. Because these attacks enabled the White House and Pentagon to pursue policies that their leadership favored before 9/11, but could not implement due to political obstacles, it becomes of immense practical importance to determine the authenticity of the official version of the 9/11 attacks and response. The readiness to plan the Iraq War as early as September 12, 2001 and the availability of the legislative draft that was to become the Patriot Act give every right for a vigilant citizenry to be suspicious. As suggested, in the aftermath of Katrina, and given the continuing ferocity of the Iraqi resistance to the American occupation, new political possibilities exist to challenge the Bush White House, and revamp American foreign and domestic policy, attending to the needs of the people, especially those who suffer in poverty while those around them wallow in obscene wealth.
Finally, adherence to international law in matters of war and peace is in the interest of the American peoples and the peoples of the world. There may be humanitarian emergencies or dangerous threats of attack that might justify recourse to war as the UN Secretary General and the UN High-level Panel on Threats, Challenges and Change both conclude, but recourse to war is only legally valid if it is authorized by the Security Council. America and the world will be better off when non-defensive warfare requires in every instance ‘a permission slip.’
Let hope that American lawmakers can learn from Iraq and Katrina to work for the security and wellbeing of the citizenry and of the world, to reassess priorities, and to reaffirm the importance of adhering to international law and of respecting the human rights of all persons, both citizens and non-citizens, whether in detention within the country or beyond its sovereign borders.
Richard Falk, chair of the board of the Nuclear Age Peace Foundation, is the author of Religion and Humane Global Governance (Palgrave) and, most recently, The Great Terror War (Olive Branch). He is currently visiting professor of global studies at UC Santa Barbara.