International Law

WAIS plans to make international law a major component of its interests, with Tom Campbell as conductor. In response to his piece posted here, David Westbrook sends these comments:

I. Is international law real?

In an earlier post you mentioned the ancient argument about international law not being law, to which you responded that we would have to invent it. As discussed below, you are entirely right -- this is a period of inventing international law. The argument about international law not really being law at all was most famously made by the British positivist legal philosopher John Austin, who understood law to be the will of the sovereign, backed by a sanction. Because international law has no sanctioning mechanism, he argued, it is not law. So-called foreign policy realists have been making similar arguments ever since.

The classic response to this argument is suggested by Tom Campbell's excellent post, in which he begins by talking about sources of international law. That is, there can be sources of law other than the will of an acknowledged sovereign. Moreover, the problems that realists have with international law infect national law as well -- enforcement and especially compliance are issues for domestic law, too. But the status of domestic law is not thereby challenged. Over the years, positivism has come to seem just too arid a theory to explain the host of social phenomena we understand as law, even on the domestic plane. In a globalizing society, we now have a host of formal ways of doing things -- consider landing an airplane, or using a credit card, or getting a fish to table halfway around the planet -- that require innumerable international agreements of various sorts, but which tend to be formal, which are understood to be binding, and which seem legal. The legal environment is now supra or trans or inter or post national. Some scholars are speaking of world law, to indicate that the national sovereign is no longer the central legal actor. At this point, it is a bit much to ask whether or not international law is "real". Instead, I generally teach international law by asking what is a state.

Finally, in "Law Through War", I argue that the international legal community now enforces its norms. Specifically, the use of force to engender compliance with the U.N. inspection regime in Iraq seemed to me to be international law's deployment of violence, much as we understand the police to be domestic law's deployment of violence. Understanding terrorists as pirates, and using international agreement to ratify that understanding and indeed catch terrorists, as Tom suggests, will further the international legal character of anti-terrorist action. Austin has been answered on his own terms.

II. Crime, piracy, war.

Let me expand some on Tom's discussion of the international law applicable to the situation. (This is just the tip of the iceberg. As a starting point, however, the problem is that there is not a lot of international law that fits well. Traditionally, terrorism was punished as a crime, i.e., domestically. But as Tom suggests, there are lots of problems with considering international terrorists simply as criminals. International criminal process is difficult and slow, at best. Consider Lockerbie. Moreover, the United States government may not be able to demonstrate anything to the degree required by criminal law. In fact, the U.S. investigation seems to be proceeding well in part because little care is being taken to ensure that the evidence obtained would be legally admissible.

So in lieu of criminal process, the United States has said, we are at war. This makes intuitive sense. The terrorists have destroyed so much that their actions seem to fall within the realm of an "armed attack." (There may be a technical argument here, but it is difficult to deny that an attack on the Pentagon isn't an armed attack on the nation.) Moreover, the scale of the attack is so large that the attacks seem to be acts of war, not "mere" mass murders.

On the other hand, we cannot consider this a traditional war. As a matter of international law, war has been an activity of states. The attacks of September 11th are not the actions of a government, so the law of war (governing when a state of war exists) and the law in war (governing the conduct of the war) does not fit so well. As Tom suggests, and Bush has said explicitly, we can consider states that harbor terrorists to be at war. Perhaps. This is even being called the Bush doctrine. But we are not doing so in traditional fashion. At the moment, we are sending aid to the people of Afghanistan, which we have already assured are not the enemy. It is as if we imposed the Marshall Plan, but before we attack instead of after we've won.

The Bush doctrine -- the effort to hold states responsible for terrorism committed by people nominally under their control -- converts the assymetrical conflict between a state and a militarized non-governmental organization that presently happens to be in Afghanistan (Al Qaida), into a conflict between two states, namely the U.S. and Afghanistan. More precisely, we convert the conflict into a conflict between some international coalition representing the civilized international will (led, perhaps perforce, by the U.S.) and a pariah state, generally denoted barbaric. (This is what my article Law Through War is about.) But these acts of conversion are a bit imperfect. The conceptual apparatus with which we understand international conflict came in to being with regard for different circumstances. Diplomacy, international law, and war all presume a state, with a government, a permanent population, and a defined territory. The government is presumed to be at least modestly rational, at least to the extent that it is predictably interested in staying in power, and cares about the integrity of its borders. None of those things applies neatly to this case, for the simple reason that the Taliban government is not Al Qaida.

So the question, for international law, is to figure out how to categorize the current situation, and how to figure out what the legitimate ranges of responses are. It is important to realize that some things are clearly off the table. For all the academic talk about clash of civilizations, and the worries about Americans brutalizing those of Arabic descent or Muslim faith, our government (and the British government) has done a fine job of making clear that this is NOT a conflict between the United States and Islam, or the Arab peoples, or even the people of Afghanistan. But if the government is at most complicitous, and the people are not the issue, and we have no wish to control the territory, it is more than a bit difficult to figure out the sense in which this is a war.

The notion of piracy offers some middle ground between crime and war. Like many modern terrorists, pirates traditionally operated more or less independently of particular states. (And often with the connivance of particular states.) Pirates, like modern terrorists, organized violence without reference to a geographical location. Tom (and other commentators, e.g., Michael Glennon) hope that the analogy to piracy can give some legal purchase on this slippery situation. My sense is maybe, some. Certainly we can expect to see analogies drawn between terrorism and piracy. But it is hard to imagine, in an age of modern transportation, a policy of hang them where you find them. If we capture bin Laden, we'll end up having to try him. Therefore, at least in the short to medium term, the pulls towards the admittedly inapposite models of war or criminal law are likely to be strong.

There are other problems. The international law on self-defense and reprisals rather tightly constrains what is permissible to states (too tightly, the Israelis have long argued). The role of the Security Council is unclear. One might argue that, insofar as this is self-defense, Security Council authorization is not needed. On the other hand, if this is some sort of international police action, then one might argue that Security Council support is required, or at least, that Security Council activity would preempt other military action. I would argue that, in light of the changing nature of the state, and so the Security Council, the interplay is more complicated than this rather traditional dichotomy would suggest.

Over the medium to longer term, however, I believe we will work out solutions to such difficulties. We are entering a time of law-making, a jurisgenerative phase. To put it more bluntly, the legal question is how we will formalize our violence. Particularly at first, we can expect the efforts of the international community in this regard to be somewhat ad hoc, improvisational, and therefore less than perfectly consistent. What seems to me certain, however, is that terrorist attacks of this magnitude, and the international cooperation required to punish the perpetrators and prevent similar acts, will inevitably give rise to new international law. The international community must have an organized, institutional, and hence formal and legal, response to the violent non governmental organization. Neither the laws of crime nor those of war, as presently conceived, constitute an adequate response.

My comment: We are bewildered by legal arguments. We often see criminals not being convicted because the prosecutor has charged them under the wrong law or because of some other technicality. Yet these problems have serious practical effects. Many individuals and some governments have argued that any action against the Taliban must be approved by the United Nations. Does the Security Council resolution cover this? The US has not "declared war" in the legal sense.

Ronald Hilton - 10/6/01