Challenges of international law in post 9/11 scenario

FARYAL HASHMI

1443-315014

Submitted To

Sir Ashfaq Ahmed

Introduction

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 Americas 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.

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.

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 Americas 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.

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.

It is and should be a requirement of a constitutional democracy in the 21st century that a

governments 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.

International terrorism and human rights abuses have long been one of the trickiest areas to
control. Aforementioned pressures will only increase potential conflict zones and scope for both
terrorism and human rights atrocities. Worst case scenarios might even imagine genocide where
populations fight for diminishing resources. And its in these cases that law finds it toughest to
get things done.

Law in action
 Our focus is on helping torture survivors and so of course we have a strong interest in the
enquiry and the record of the UK government on counter terrorism, and to ensure that they meet
their anti terror and anti-torture obligations, explains Kevin Laue. Hes Legal Advisor to
Redress, an international non-profit legal and human rights organisation seeking to help torture
survivors.

I think that on balance there is no fundamental problem with the UK checks and balances to
protect human rights, he continues. Torture is a crime under UK and international law, there is
universal jurisdiction for this type of crime, so the perpetrator of such a crime anywhere in the
world can be tried in the UK for torture or other gross human rights abuses such as genocide, war
crimes and crimes against humanity.

Challenges to Defeating the Terrorist Enemy

Terrorists increased dispersion, use of nonphysical (virtual) safe havens, and informal
operational and logistical coordination complicate efforts to find and defeat them.
In Iraq, al-Qaida and associated foreign terrorists have made clear that their goal is to build a
Taliban-like state and then expand their battle to neighboring states. In the near future, some of
these terrorists could return to their home countries, exacerbating domestic conflicts or
fomenting radical ideologies.
Terrorists and insurgents are increasingly using media and the Internet to spread propaganda,
rally support, and share experiences, as well as a means to communicate with each other.

Challenges to Denying Support and Safe haven

Some state sponsors of terrorism continue to provide funding and weapons to terrorists and offer
safe havens from which terrorists plan and conduct operations. Most worrisome is that some of
these countries also have developed or have the capability to manufacture weapons of mass
destruction and other destabilizing technologies that could fall into the hands of terrorists. In
addition, ungoverned and under governed spaces, often on frontiers between nations and
overlaying failed states, provide safe havens that terrorists exploit.

Iran is the worlds leading state provider of political, material, and financial support to Hizballah
and Palestinian rejectionist group sand remains unwilling to hand over senior al-Qaida members
for prosecution.

Syria allows various groups to operate from its soil. It provides both material and political
support to Lebanese Hizballah and Palestinian terrorist groups. North Koreas cooperation with
Syria in the missile and other WMD areas may enhance Syrias expertise and ability to provide
similar assistance, deliberately or inadvertently, to terrorist organizations. Cuba continues the
actions that led to its designation as a state sponsor. Challenges to Combating the Violent
Extremist Ideology

Challenges to Combating the Violent Extremist Ideology

Al-Qaida propagandists continue to exploit local grievances to create the sense that the Muslim
world is aggrieved and disrespected. A key challenge remains understanding the motivations of
those who join or support terrorist networks, as well as the incentives and recruitment techniques
employed by terrorists. Only then can we develop effective tools to combat the attractiveness of
their message.

Challenges to Protecting the Homeland

We must do more to understand the tools and methodologies employed by extremists and how
radicalization occurs, and offer alternative messages. Mobilizing Americans to spread good will
in their communities will help reduce receptivity to radical and violent behavior.

Challenges Securing Weapons of Mass Destruction

Terrorists have openly declared both their desireto develop and intent to employ weapons of
mass destruction against the United States, our partners, and our interests around the world. We
must remain vigilant in our efforts to deny terrorist access to WMD.
We will face the challenge of marshaling all elements of national power and influence,
employing the best efforts of local, State, and Federal governments in full partnership with both
the private sector and our partners abroad.