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The Rocky Shoals of International Law

The Rocky Shoals of International Law

Mini Teaser: International law is rapidly evolving a direction thaat threatens American sovereignty. With careful attention, however, the United States can mold the law to its advantage.

by Author(s): David B. Rivkin, Jr.Lee A. Casey

Although international law has always been a consideration for American foreign policymakers, it has rarely commanded the focus of their attentions. Under the next president, this will have to change. Since the Cold War's end, a number of international organizations, human rights activists and states have worked to transform the traditional law of nations governing the relationship between states into something akin to an international regulatory code. This "new" international law purports to govern the relationship of citizens to their governments, affecting such domestic issues as environmental protection and the rights of children. Among other things, it would: nearly eliminate the unilateral use of military force; create the unattainable requirement of avoiding all civilian casualties in combat; promote the criminal prosecution of individual state officials by the courts of other states and international tribunals; and permit -- or even require -- international "humanitarian" intervention in a state's internal affairs. Recast as such, international law constitutes a real and immediate threat to U.S. national interests.

The impetus for extending the reach of international law stems from both our allies and our adversaries, who have chosen to use it as a means to check, or at least harness, American power. While each group has different strategic goals, from the perspective of both, the great "problem" of international affairs in the post-Cold War world is the unchallenged military, diplomatic, economic and even cultural predominance of the United States. Our global antagonists, particularly China, would like to see the United States disengage from world affairs. For our allies, who continue to depend far too much on U.S. military might to wish for a new American isolationism, the great danger has become American "unilateralism" -- an all-purpose term for U.S. action not sanctioned by the "international community." They do not want to prevent U.S. global engagement; they want to influence and control it.

Both our allies and our adversaries understand the value of international law in achieving their ends. Law and its rhetoric have always played a far more important role in the United States than in almost any other country. We are a nation bound together not by ties of blood or religion, but by paper and ink. The Declaration of Independence itself was, at its heart, an appeal to law -- the laws of nature and of nature's God -- to justify an act of rebellion against the British Crown. As Alexis de Tocqueville wrote in the early days of the American republic:

"[t]he influence of legal habits [in the United States] extends beyond the precise limits I have pointed out. Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings."

Tocqueville was clearly prescient. Today almost every key policy issue in the United States is framed as a legal question. Law is our genius and our Achilles' Heel. If the trends of international law in the 1990s are allowed to mature into binding rules, international law may prove to be one of the most potent weapons ever deployed against the United States.

The good news is that international law, properly configured, should not be viewed as a burden for our foreign policy. Rather, it can function as a positive force, capable of promoting a more stable international environment and advancing our national interest. As the world's pre-eminent power, we have both the greatest opportunity and the most pressing need to shape international law. To do so successfully in the years ahead, though, will require a keen appreciation of how international law evolved over time and of what specific legal problems have confronted American foreign and defense policy over the last decade. Moreover, international law imperatives will have to be integrated into American statecraft. For just as war is too important to be left to the generals, international law cannot be left solely to the lawyers.

The Assault on the Westphalian Order

The current international order, in which the most important actor is the independent nation-state, dates from the 1648 Peace of Westphalia, which ended Europe's religious wars. Traditional international law, better described as the "law of nations", was built around this system. It was defined in 1758 by one of its early scholars, Emerich de Vattel, as "the science of the law subsisting between nations or states, and of the obligations that flow from it."

This law developed over time, primarily by the actual practice of states interacting with one another, and had little, if anything, to do with the relationship between citizens and their own governments. For this reason, the law of nations accommodated widely divergent domestic political systems, ranging from absolute monarchies to authoritarian and totalitarian regimes to democracies. It was not, moreover, enforceable through any regular legal or judicial process, but only by political means -- up to and including war. In this manner, international law, which lacked the legitimacy enjoyed by law made by an elected and accountable legislative body, was fully compatible with the principles of self-government upon which the American republic was founded. Indeed, the Constitution itself recognizes the existence of the law of nations, and specifically gives Congress the authority to define offenses against that law.

In the aftermath of World War II, however, attempts to impose limitations on states through international legal strictures gained a new currency. The murderous policies of Nazi Germany and Imperial Japan prompted renewed international efforts to leash the dogs of war and, even more broadly, to impose a range of duties and obligations on sovereign governments. These endeavors involved not only limiting -- through the UN Charter -- the right of states to use force against other states, but also sought both to regulate the relationships between national governments and their citizens and to create tangible enforcement mechanisms, other than the use of raw political or military force. Thus, the conceptual foundation for the new international law was in place by the late 1940s. Because of Cold War imperatives, however, these efforts produced little effect in the way states actually behaved.

With the end of the Cold War things have changed. Activists, scholars, international institutions like the United Nations, and even a number of governments (including, episodically at least, the Clinton administration) have redoubled their efforts, championing a new international legal order by which states are subject to the will of the elusive "international community" at large. Non-governmental organizations (NGOs) have been the leading force in this process. They have been particularly active in promoting the adoption of international treaties and conventions, including the Rome treaty (which established the new permanent International Criminal Court, or ICC), the Land Mines Convention, the Chemical Weapons Convention and the Kyoto Protocol.

NGOs have also worked to steer and hasten the evolution of customary international law, an area where traditionally only state practice gave rise, at a rather glacial pace, to the emergence of legal norms. Now customs seem to be spawned overnight, through nothing more tangible than the convening of scholarly conferences or the publication of papers. Significantly, it is now alleged that states do not have any choice in deciding whether to comply with these newly minted international law norms. The NGOs have been arguing that they are able to represent public aspirations at both the national and global levels -- that is, to speak for the (nonexistent) "global civil society" -- better than any government. While these claims are quite obviously false -- NGOs are not elected, not accountable to any body politic, and are not inherently better or worse than other special interests -- such groups have had considerable success in shaping the new international law. These groups were omnipresent during the 1998 Rome Conference, which adopted the ICC treaty, and actually achieved mention as vessels of the "public conscience" in the Land Mines Convention.

The substantive body of the new international law that these groups have sponsored has a number of specific manifestations, not all of them entirely consistent with each other. These include claims that heretofore purely domestic public policy issues -- such as the death penalty, abortion, gay rights, environmental protection, and the relationship between parents and children -- must be resolved in accordance with "prevailing" international standards; that, with the possible exception of repelling armed attack, only the United Nations Security Council can authorize the use of military force; that the "international community" is entitled to intervene under a variety of circumstances in the internal affairs of states; and that the actions of individual civilian and military officials of states fall under the purview of international criminal jurisdiction.

At the core of these efforts is a frontal assault on sovereignty as the organizing principle of the international system. Proponents of the new order are not shy about saying so. Among the new international law's strongest supporters is Secretary of State Madeleine Albright, who has plainly stated,
"Great nations who understand the importance of sovereignty at various times cede various portions of it in order to achieve some better good for their country. We are looking at how the nation-state functions in a totally different way than people did at the beginning of this century."

The Threat to the United States

Although the Clinton administration has been generally supportive of the new international law, its key tenets create problems of the highest order for the United States. First, as a philosophical matter, any attack upon the principle of sovereignty threatens the very foundation of American democracy. Sovereignty is the necessary predicate of self-government. As Vattel wrote, a "sovereign State" is one that "governs itself, under what form so ever." Any limitation on sovereignty as an organizing principle, any "cession", to paraphrase Secretary Albright, is an abdication of the right of the citizens of the United States to be governed solely in accordance with their Constitution, and by individuals whom they have elected and who are ultimately accountable to them. To the extent that international law allows supranational, or extra-national, institutions to determine whether the actions of the United States are lawful, ultimate authority will no longer be vested in the American people, but in these institutions.

Thus, for all of its humanitarian and democracy-building rhetoric, the new international law is profoundly undemocratic at its core. Indeed, with its lack of accountability and disdain for democratic practice (as opposed to rhetoric), it arguably poses the greatest challenge to Francis Fukuyama's anticipated global triumph of liberal democracy. If the aspirations of today's international law proponents were ever to prevail, the resulting international system would not remotely resemble a community of democratic nations.

Second, as a practical matter, the new international law has the potential to undermine American leadership in the post-Cold War global system. Even more fundamentally, international law may well make the world safe for aggression, by imposing undue constraints on those countries that are willing to use force to deter and punish it. Although, as noted above, the new international law has a number of manifestations, those elements dealing with the use of military force, and the potential consequences for individual American officials who order or implement its use, are the most advanced and pernicious. As the world's pre-eminent military power, with global interests and responsibilities, the United States should be very concerned about any effort to create international judicial institutions capable of prosecuting individual soldiers, officers and elected officials in the chain of command.

The international criminal "norms" applied in these courts, both in the ad hoc criminal courts for the former Yugoslavia and Rwanda and in the International Criminal Court, are ambiguous in their meaning and remarkably fluid in their application. For example, one of the "war crimes" prosecutable in the ICC is defined as "[i]ntentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated." Whether any particular attack causes "excessive" civilian injuries or environmental damage is very much a matter of opinion.

This is, in fact, a crime that can be tailored to fit almost any circumstances, as was all but openly acknowledged by the prosecutor's office of the Yugoslav tribunal during its investigation of alleged NATO war crimes. This investigation was undertaken after a number of NGOs complained that nato's 1999 air campaign against Serbia resulted in too many civilian deaths. As candidly noted in the report to the prosecutor,

"[t]he answers to these questions [regarding allegedly excessive civilian casualties] are not simple. It may be necessary to resolve them on a case by case basis, and the answers may differ depending on the background and values of the decision-maker. It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants. Further, it is unlikely that military commanders with different doctrinal backgrounds and differing degrees of combat experience or national military histories would always agree in close cases."

The key underlying problem here is that injuries to noncombatants and their property -- so-called "collateral damage" -- are an endemic consequence of combat. As a result, the traditional law of war, jus in bello, although proscribing certain hostile actions toward civilians, eschewed overly rigid rules on collateral damage. Unfortunately, instead of continuing to rely on the broad, traditional jus in bello principles of proportionality and discrimination, the new norms have come to resemble American domestic regulatory law. These rules are overly prescriptive and proscriptive, to such an extent that ensuring full compliance has become almost impossible. This is particularly the case because the new international law seems to suggest that zero civilian casualties and no collateral damage are not only attainable outcomes in modern combat, but that these should be the norm. The combination of the unrealistic norms and unaccountable judicial bodies that would apply them is particularly problematic.

The American military is particularly vulnerable here. This is because U.S. military doctrine has always been attrition-oriented, emphasizing the intensive application of firepower and the use of "decisive force." It is inevitable that damage to civilian sites, and civilian casualties, will result. This is all the more likely given the growing American aversion to combat casualties, which forces our military commanders to rely more and more on air strikes and missile attacks. This raises the real possibility that American soldiers and officials will be considered subject to prosecution, even in situations where the intervention has been "humanitarian" in character, as with the air campaign against Serbia.

Significantly, while no prosecutions against NATO officials are currently planned, even the relatively tame Yugoslav tribunal did not give the alliance a clean bill of health. Indeed, the prosecutor's office declined to bring indictments, not because it concluded that no crimes were committed by NATO, but because "[i]n all cases, either the law is not sufficiently clear or investigations are unlikely to result in the acquisition of sufficient evidence to substantiate charges against high level accused or against lower accused for particularly heinous offenses." Future outcomes in the permanent ICC, a court that will be less dependent upon U.S. and NATO largesse than is the Yugoslav tribunal, may be very different. And the fact that the United States has not signed, and would not ratify, the ICC treaty will not prevent the ICC from pursuing Americans. The court claims to exercise a form of "universal jurisdiction" that will allow it to prosecute American citizens when their actions, or the effects of their actions, take place on the territory of a state that has signed the ICC treaty.
Moreover, the danger here is not limited to the potential actions of the ICC. Based on the "universal jurisdiction" theory -- which suggests that any state can prosecute international humanitarian violations wherever they occur, whether or not that state's own citizens are involved -- any state, or even a low-level foreign magistrate, can begin a prosecution against American military or civilian officials. This was, of course, the case with the former Chilean dictator, Augusto Pinochet, who traveled to England for medical treatment in 1998, and was very nearly extradited to Spain to stand trial for his actions during his rule in Chile.

Overall, there is no doubt that, insofar as they can successfully claim the right to prosecute military and civilian leaders for violations of the laws of war and international humanitarian norms, international judicial bodies and interested states will be able effectively to shape American policy. An American president would be far less likely to use force if there were a genuine possibility that U.S. soldiers or officials, including himself, would face future prosecution in a foreign court. Both our allies and our adversaries fully understand the importance of molding the new international law to fit their needs, and its power as an effective weapon against the United States.

Examples of this phenomenon are not difficult to find. Human rights activists, of course, have frequently made exaggerated claims that pre-existing international humanitarian norms require fundamental changes in U.S. foreign and domestic policy. States are also increasingly using the language of law as a means of shaping U.S. policy. In one of the most boldly cynical examples of this phenomenon, the People's Republic of China -- desperate to prevent American deployment of even a limited anti-ballistic missile defense -- has asserted that the 1972 Anti-Ballistic Missile Treaty between the United States and the Soviet Union remains in force (even though the Soviet Union disappeared a decade ago), and that it cannot be terminated by the United States because that treaty has assumed the status of "customary" international law.

Opportunities for the United States

All of these problems have led many conservatives, always skeptical of international law because of its ambiguous and supranational character, to reject it as law at all. Most notably, the dean of conservative constitutional lawyers, Robert Bork, has forcefully argued in these pages that even traditional international law is simply too indeterminate in its application and too subject to "non-legal" -- i.e., political and diplomatic -- criteria to be considered law. He also has attacked international law at a much more fundamental level, noting that the lack of any elected and accountable international lawmaking body deprives international law of the legitimacy inherently possessed by domestic law. As Judge Bork pointed out ten years ago, "There can be no authentic rule of law among nations until nations have a common political morality or are under a common sovereignty."

On the facts, the conservative critics of international law are mostly right. Even traditional international law was not made by an elected, accountable legislature; was often ambiguous to the point of being unknowable; was not enforceable by regular judicial processes; and accorded totalitarian dictatorships the same legal status as democratic republics. But an unfair, unbalanced or nakedly political application of the law does not necessarily undermine its force and effect as law. Domestic examples of these faults are plentiful. Moreover, to the extent that international law, to be considered legitimate and effective, is expected to meet the standards that must be met by domestic law, it will necessarily fail.

It does not follow, however, that international law does not exist, or that the "rule of law" among nations is impossible, short of global governance. In fact, it is only when international law is expected to serve as the equivalent of domestic law, but on a global basis, that it appears ambiguous, ineffectual and illegitimate. And it is only comparatively recently that it has been expected to meet those standards -- a task for which it is, and always has been, singularly ill-equipped. Nevertheless, international law does exist, and the United States, like other sovereigns, is bound by it. This much was fully recognized and accepted by the Founders of our Republic and the framers of the Constitution.

However, the United States is not required to accept the new international law, and would be foolish to do so. Rather, we should actively work to shape international law in ways that both support our national interests and that are consistent with our philosophical foundations. In this, we would simply be following the examples of other great powers, past and present, which have understood the importance and value of a favorable international legal system. An excellent example of such behavior is provided by the efforts of the great seventeenth and eighteenth-century maritime powers, Britain and the Dutch Republic, to mold the principle of "freedom of the seas" to their commercial and naval needs. As its dependence on maritime trade increased, the Dutch Republic argued for the broadest principle of free navigation -- especially after its naval supremacy gave way to that of Britain. On the other hand, Britain's support for this international norm ebbed and flowed with its need to impose successful naval blockades on Continental aggressors, specifically, France and Germany.

The Restoration of International Law

To implement this active and national interest-driven approach to the development of international law would mean a significant change in the way American foreign policy is made. Restoring the "law of nations" must be one of the next president's most important priorities. To achieve this end, the new administration must consciously coordinate foreign policy and international law imperatives. The rules of international law are significantly affected by state practice. A state that consistently takes a particular position on the content or meaning of international law, and that acts commensurate with that position, can have a very important impact on the law's development. We need, in short, to approach the current problems posed by international law holistically, rather than one issue at a time.

To begin with, an adroit American public diplomacy is very important. We need to articulate clearly and consistently why we embrace particular international legal stances. While the United States should not shy away from invoking its national interests as a motivating force for its actions, whenever possible it should articulate a broader set of compelling normative principles. In particular, the United States should strongly espouse national sovereignty, the bedrock upon which democracy and self-government are built, as the fundamental organizing principle of the international system. In that regard, we should make clear to our European allies that our understanding of national sovereignty and independence is simply different than their own.

Throughout its history, the United States has taken a strong view of its rights as an independent sovereign; such a view is essential to our constitutional form of government. By contrast, over the past fifty years, the European states have come to accept increasing limitations on their sovereign rights, to the point of permitting significant elements of their foreign and domestic policies to be formulated by the European Union's bureaucracy in Brussels, rather than by their own elected national legislatures. It may well be accurate to say that, at least in Europe, a new form of sovereignty has developed -- although these developments have not been without significant opposition. As Jeremy Rabkin has aptly noted, "as the EU is not quite a State, it favors a world in which states are much less central to international society than they used to be." Europe, however, is not the world.

In this regard, it is essential to explain the role of American exceptionalism and the heroic component in our national civic culture. Our European allies may well be able to accommodate their national aspirations within the context of the European Union, looking back to the universalism of the Middle Ages; but the United States cannot. It was not a part of Charlemagne's empire or of medieval Christendom. An American president can motivate the American people to undertake a global leadership role -- a role that continues to be critical to Europe's security -- only by invoking patriotism, idealism and the national interest.

This is particularly true when the use of American military force may be involved. Our allies should understand that doctrines denigrating patriotism and national sovereignty inherently promote American isolationism. It is simply impossible to engage the U.S. military on the basis of the imperatives of multilateral institutions alone.

On a more practical level, senior U.S. foreign policymakers need to anticipate and take account of the international law implications of each and every foreign policy decision. Although clear statements by U.S. officials rejecting the worst excesses of new trends in international law will be important, this will not be enough to protect U.S. interests. The United States should avoid any action, however meritorious it may appear at the time, that would undermine traditional international law principles. On those occasions when the national interest or basic morality requires a violation of these principles, we should justify this by reference to a greater good -- not by embracing the insupportable "new" international law.

This is especially true with respect to the "right of humanitarian intervention." The Clinton administration adopted this "right" as a pretext to justify nato's air war against Serbia, and the new administration may well be tempted to invoke it again to justify further U.S. intervention in Yugoslavia, Iraq or elsewhere. This temptation must be resisted. The "right of humanitarian intervention" has no basis in the traditional law of nations. It violates the United Nations Charter, which prohibits interference in the internal affairs of member states. It is, in fact, nothing more than nineteenth-century colonialism -- this time dressed in the language of law rather than of "progress" or the "white man's burden."

If the "right of humanitarian intervention" were established as a norm of international law, there would be neither limits to it nor means to support its neutral application. This fact surely has not been lost on weaker states that do not meet Western standards of democracy. Ultimately, the "right of humanitarian intervention" is not likely to produce a more just and safe world, but to impel vulnerable states to obtain weapons of mass destruction as a means of preventing Western intervention in their internal affairs. It is, of course, true that any sort of intervention by the United States and its allies fuels this particular fire. However, championing a new international law norm that permits, or even requires, humanitarian intervention suggests a much more immediate threat to these regimes. It implies that such intervention will be the rule rather than the exception. In a world where the designs for nuclear weaponry can be obtained on the Internet, this is not wise statecraft.

A better approach to dealing with "rogue" regimes would be to follow the traditional rules of international law. These permit self-defense, that is, action by a state against another that is threatening its national interests -- a right that was fully incorporated into the United Nations Charter. The traditional rules give rogue regimes less reason to develop weapons of mass destruction. At the same time, they still permit significant scope for U.S. action. For example, if the next administration were to conclude that Saddam Hussein must finally be removed from power, it could avoid basing its action on a "right of humanitarian intervention" by recognizing an alternative Iraqi government and providing assistance in removing the dictator. A similar approach could have been employed against Milosevic.

In any case, when addressing international law issues, the United States should be consistent. It should only promote international law norms that it is prepared to obey. The Clinton administration's attempt to establish a "new" form of sovereignty, along with a "right of humanitarian intervention" and "international courts" to prosecute war crimes, arguably serves to some extent its foreign policy imperatives. However, these rules clearly would not be acceptable to the United States if they were applied to its own nationals or policies. Indeed, this was already clear when the Clinton administration found itself complaining bitterly about the inquiries of the International Criminal Tribunal for the Former Yugoslavia into nato's Serbia campaign. That being the case, the United States should not have supported the creation of the Yugoslav tribunal in the first place.

Similarly, the United States was an early supporter of the permanent ICC. The Clinton administration's open enthusiasm for the project evidently led our negotiating partners to believe that the United States would ultimately sign the Rome treaty, even if all U.S. objectives were not achieved -- in particular, guarantees that U.S. soldiers and officials could not be prosecuted without prior U.S. approval. In the end, when these guarantees could not be obtained, the American delegation (properly) refused to sign the Rome treaty and was left isolated from its allies.

This is an excellent example of how not to conduct U.S. foreign policy. An early and honest statement, for example, that the uniqueness of the U.S. Constitution and the long American tradition of independence precluded the subjection of American nationals to the ICC's authority would have better served the national interest and our international reputation. Moreover, a frank acknowledgment of this fact might well have undermined the ICC project in its early stages, avoiding the creation of a court that will automatically claim jurisdiction over American nationals. The only option now, of course, is to oppose vigorously the court's actual operations.

The United States must also oppose the increasingly exaggerated claims made in the name of the principle of "universal jurisdiction." Indeed, this new element of international law, which was invoked in an effort to extradite Augusto Pinochet to Spain, may be the most pernicious. The universal jurisdiction principle often is mistakenly traced to the Nuremberg trials. In fact, the International Military Tribunal at Nuremberg did not claim to exercise "universal jurisdiction" over the Nazi leadership. It instead justified its authority on the sovereign power of the conquered German state: namely, "the exercise of the sovereign legislative power [of Germany] by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories." Under the traditional law of nations, universal jurisdiction is a narrow proposition, permitting all states to criminalize actions-like piracy-injurious to all and occurring outside the territory of any one state.

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