Law after Ground Zero

John Strawson

• Publisher: Routledge-Cavendish
• Year: 2017
• ISBN:
  9781135311650
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Following the events of September 11, a new legal order is emerging in which the 'terrorist threat' has been used as justification to marginalise human rights.

This collection of themed essays offers an emphatic defence to the threats confronting our human rights culture. In analysing the role of the United Nations, the conduct of the Afghan war, domestic anti-terrorist legislation and the new debate about Islamic law, Law after Ground Zero demonstrates the future challenges that law will face within our global society. It also offers accounts of how events have impacted on the Palestinian-Israeli conflict, Iraq and Afghanistan itself, as well as debates about international law, human rights and women's rights.

This unique work will interest those studying or researching in the areas of international law, human rights and humanitarian law, international relations, politics, critical legal studies, Islamic law, culture and socio-legal studies.

Part 1
Law’s First Strike

Chapter 1
The degradation of international law?

Bill Bowring

Introduction

Some years ago, Tony Carty wrote of The Decay of International Law.¹ In a prescient passage, he argued that ‘Official argument is, inevitably, confined to one-sided assertions of legal principle which it is thought are likely to appeal, along with many other “non-legal” factors, either to a domestic audience or to particular allied powers. Attempts to “persuade” the adversary are exceptional. Legal doctrine tries to carry the discourse further to precisely this stage. It has nothing to lose but its reputation for integrity’.²

Following the US and UK response to the events of September 11, critics like David Chandler instead proclaim the ‘degradation’ of international law. It is hard to argue with his conclusion that ‘International law is no longer accepted as a legitimate curb on the use of force by Western powers, while coercive intervention by Western powers against other states is increasingly legitimised through the framework of “international justice” … The gap between “justice” and what is “legal” has led to the degradation of international law rather than to its development’.³

This essay is an attempt at reflection on what has befallen the law, and at resolution of the question of whether law and power can once again be brought into a relationship in which there is a perspective for justice. I say ‘once again’, since it is contended here that the development of international law during the ‘cold war’ was, for reasons which are entirely democratic, progressive and humane.

My starting point is a ghoulish metaphor, a macabre prelude to what follows. Although this essay comprises a tragedy in three acts – Iraq (starting in 1991), Serbia (starting in 1999) and Afghanistan (starting in 2001) – my starting point is 1986, when an act of vengeance and a chilling prophecy could encourage the delusion that history is simply a vicious circle. It is also noteworthy that none of the three disasters I describe has achieved closure. Each continues to wreak vengeance, in part at least through the law of unintended consequences, a law which applies with remorseless lack of irony to the United States especially.

A further element of counterpoint is added by an ironical, and perhaps unfair, accompaniment: the words of the most sunny optimist, the normative liberal par excellence, the true believer in the legitimacy of norms and rules in international law, Thomas Franck.⁴

This essay focuses primarily on scholarly writings concerning the three events noted above. I bear in mind Hilary Charlesworth’s forthright critique of the development of international legal scholarship through the examination of ‘crises’,⁵ and plead guilty. Nevertheless, Charlesworth herself suggests that ‘One way forward is to refocus international law on issues of structural justice that underpin everyday life. What might an international law of everyday life look like?’.⁶ One purpose of the present analysis will be to seek to show how both international human rights, and international law, of which the former is a sub-set, may be vindicated when understood not as a discourse in which a ‘degraded vision of the social world’ serves to ‘sustain the self-belief of the governing class’,⁷ but as a product of and catalyst of real struggles.

Not least, this essay seeks to corroborate Michael Byers’ position, reflecting on the decade of forceful measures against Iraq: ‘Although law is necessarily the result and reflection of politics, law nevertheless retains a specificity and resistance to short-term change that enables it to constrain sudden changes in relative power, and sudden changes in policy motivated by consequentially shifting perceptions of opportunity and self-interest.’⁸ This is especially the case if law is the result and reflection not only of power, but of struggle and resistance: that is perhaps how law itself can offer resistance.

Vampires

If international law has been degraded, it has also been violated; but violated with its full, enthusiastic participation. The three exemplary uses of armed force against Iraq, Serbia and finally Afghanistan appear as three acts in a tragedy of intimate deception, a macabre vampire-bride relationship between law and power. The three stages can be described as follows. First, consummation, when law and power, freed by the end of the cold war, seemed set for the longed-for happy alliance; second, seduction, when power sought from law invasion of its means of creation, international custom; third, rejection, when power, having taken and ravished the law, turned its back and walked away.

Antonio Cassese, in his first reaction to the US response to September 11, identified another vampirish activity, the reproduction of vampires through the poisoned bite. ‘In sum, the response to the appalling tragedy of 11 September may lead to acceptable legal change in the international community only if reasonable measures are taken, as much as possible on a collective basis, which do not collide with the generally accepted principles of that community. Otherwise, the road would be open to the setting in of that anarchy in the international community so eagerly pursued by terrorists.’⁹ That is, stated less politely, terrorism has bred terrorism; its victim, its own sworn enemy, is only too willing, it turns out, to repeat the cycle of death and destruction.

Some positive international law

On one matter this essay adopts a resolutely positivist, black-letter approach. I have in mind the plain words of the UN Charter, taken together with the hard-won state practice and opinio juris concerning the use of force, the ‘inherent’ right to self-defence, and especially the slippery doctrine of ‘anticipatory’ self-defence.¹⁰

Since 1945 it has been an unambiguous principle of international law that the United Nations has, with one strictly limited exception, a monopoly of the use of force in international relations. This is the effect of Article 2(4) of the UN Charter, which prohibits ‘the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations’.

All UN members are strictly bound by this Article – the UN Charter is a binding treaty. Indeed, the UN was established to prevent a repetition of the horrors of World War II.

Only the United Nations Security Council, acting under Chapter VII of the Charter, is entitled to ‘take action by air, sea, or land forces as may be necessary to maintain or restore international peace and security’ (Article 42). The Security Council may, as in the case of the Gulf War, delegate the execution of such action to states or groups of states. But it must do so expressly, and must remain in charge.

The only exception to this principle is contained in Article 51 of the UN Charter: the right of self-defence if an armed attack occurs against a Member of the United Nations. Customary international law, which long pre-dates the UN,¹¹ makes it clear that self-defence warrants only measures which are proportional to the armed attack and necessary to respond to it. This principle, and the status of the doctrine of self-defence as customary law independent of the UN Charter, was confirmed by the International Court of Justice in Nicaragua v US in 1986.¹² Furthermore, Article 51 also states that self-defence may be used only until the Security Council has taken measures necessary to maintain international peace and security.

While it is accepted, and indeed urged, that the Security Council, its composition and its role are in need of democratic reform, and its dispositions with regard to the existence of a threat to or breach of international peace and security ought to be subject to review by the International Court of Justice, the Security Council itself is in need of protection. In Quigley’s phrase, it is in danger of becoming a ‘helpless hostage’.¹³ He points, with substantial incriminating evidence, to the following:

Four categories of situations have arisen that reflect the Security Council’s inability to fulfil its functions properly as a result of United States dominance. First, in ‘threat to the peace’ situations, the United States has asserted dubious facts before the Security Council, and the Council has acted as if those facts were true, without investigation. Second, the United States has at several times acted purportedly on the basis of powers granted by the Security Council, but in fact outside any powers actually granted. Third, the United States has convinced the Security Council on several occasions to authorise it to take military action unilaterally rather than under Council control. Fourth, the United States has, by use of its veto power, blocked the Security Council from dealing with the United Nations’ longest standing territorial dispute, that over Israel-Palestine.¹⁴

Quigley’s words were prophetic; the Israel-Palestine conflict is the inescapable foundation, playing the roles of cause and effect, in propaganda and in reality, to the events of September 11, and the war in Afghanistan.

Yet it may be argued, with hindsight, that the UN system – itself the result of compromise between the First and Second Worlds, the capitalist and communist systems – acquired its most important concepts and juridical content through the process of de-colonisation. It is no accident that the principles of state sovereignty and non-interference, brought to life by the hard-won legal right of peoples to self-determination, became the main source of legitimacy for the United Nations as a focus for the aspirations of new states and aspiring peoples.

The start of a vicious circle – the bombing of Libya

The late 1980s were a turning point in the fate not only of the (former) USSR, but of international law as a potential source of protection from strong states. In 1986 the United States lost the case brought against it in the International Court of Justice by Nicaragua.¹⁵ And on 15 April 1986 the United States attacked five targets in Libyan territory, having sought and obtained the agreement of Margaret Thatcher for the use of the UK as a staging post for its bombers. Not only for the purpose of this essay, the events of 15 April 1986 serve as an awful warning for what took place on 11 September 2001. As was recognised at the time, the civilian deaths in Tripoli and Benghazi, if scaled up from the tiny population of Libya to the huge population of the United States of America, would have represented a strike on New York and Washington causing at least tens of thousands of innocent victims. Neither international law nor justice can countenance an eye for an eye, violence for violence. But the action of the United States in April 1986 was at the very least an awful harbinger, and perhaps one of the causes, of the events of September 11.¹⁶

However, the purpose of this section is to recall the prophetic words of Paust, writing shortly afterwards.¹⁷ It should be noted at once that Paust was not writing to condemn the United States; far from it. His conclusion was in essence a premonition of Kosovo and Afghanistan. Indeed, if the state dominated system did not recognise that the use of force is permissible when reasonably necessary to defend fundamental human rights, such a denial would inexorably demonstrate its own illegitimacy.’ At first sight, of course, this is a non sequitur, but we will let that pass. More interesting is the path of Paust’s reasoning and the demonstration he offers of the iron consistency of US policy with regard to international law.

Paust starts with the now forgotten ‘Schultz doctrine’, enunciated on 15 January 1986, before the bombing of Libya. George Schultz, then US Secretary of State, stated in a speech at the National Defense University: ‘It is absurd to argue that international law prohibits us from capturing terrorists in international waters or airspace, from attacking them on the soil of other nations even for the purpose of rescuing hostages, or from using force against states that s...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Acknowledgments
• Contributors
• Contents
• Transliteration of Arabic terms
• Abbreviations
• Editor’s introduction – in the name of the law
• PART I LAW’S FIRST STRIKE
• PART 2 THE GROUND OF RIGHTS
• PART 3 GROUND ZERO’S PROSPECTS
• Index