May 16, 2011 | National Post
Bin Laden’s Killing Shows Us the Irrelevance of “International Law”
This past week, the NDP’s Thomas Mulcair became a figure of ridicule for suggesting that the United States doesn’t have photos of Osama bin Laden’s body — presumably, in his imagination, because the al-Qaeda leader isn’t really dead. But Mr. Mulcair made another interesting comment about the U.S. raid, which did not get as much attention: “We have to understand whether or not there was an action of self defence or whether there was something that was more in the style of a direct killing and that has to do with American law and with international law as well.”
The idea that the legitimacy of this brilliantly executed American raid might be cast into doubt by the dogmas of “international law” can only be described as quaint — the sort of debating point that would have been taken seriously when the Twin Towers were still standing. In 2011, it sounds only slightly less marginal than the idea that bin Laden still walks the earth.
The exact moment when we knew “international law” had little to say about the war against terrorism came on November 3, 2002. That was the day an American Predator drone, flying high above the Yemeni outback 100 miles east of Sanaa, fired a Hellfire missile into a car containing al-Qaeda’s local commander, Abu Ali al-Harithi, and five jihadi comrades. Photos of the scene show a black hole in the ground where the car once stood — a suitable metaphor for the once-fashionable notion that “international law” trumps a nation’s right to defend itself.
Al-Harithi, who is believed to have masterminded the October 2000 USS Cole bombing, was a Yemeni citizen who had never been convicted in court — and so his killing was exactly the sort of act that once would have aroused outrage at the international bar. Yet the only notable political figure to raise her voice against it was Swedish foreign minister Anna Lindh, who told the Swedish news agency TT: “If the USA is behind this with Yemen’s consent, it is nevertheless a summary execution that violates human rights. If the USA has conducted the attack without Yemen’s permission it is even worse. Then it is a question of unauthorised use of force.” Like Mr. Mulcair, she didn’t yet understand that times had changed.
It is difficult to remember now, but in the 1990s — the interregnum between the Cold War and 9/11 — there was a great mania for international law. With the USSR gone, and the “end of history” upon us, it was imagined that disputes between nations now could be solved by lawyers and treaties. The “responsibility to protect” doctrine, which emerged from a pre-9/11 Canadian initiative known as the International Commission on Intervention and State Sovereignty, imagined a world in which humanitarian interventions would be triggered on the basis of clear legal principles, not unlike search warrants issued by judges. The arrest of Augusto Pinochet in Britain, on an extradition request issued by a Spanish judge, created the hope (or fear) that military commanders and politicians could be held legally accountable for their actions by any country on earth, under the theory of “universal jurisdiction.” I have a very clear memory of a good friend of mine — who worked at the Globe & Mail at the time — going off to Rome to cover the conference that eventually would lead to the establishment of the International Criminal Court. He believed he was witnessing nothing less than a blueprint for the peaceful, well-ordered world of the future.
All of these dreams ended on 9/11. International law, as applied to war and terrorism, isn’t a dead letter, exactly. The law books are still hauled out when anti-Zionists want a stick to beat down Israel, or throw some deposed Balkan or sub-Saharan dictator in a Dutch jail. And the Americans have lawyers on hand at drone-control central — to avoid the most flagrant breaches of traditional humanitarian standards. But the idea that abstract legal doctrines would prevent the Americans from raiding a Pakistani safe house to nab bin Laden is laughable — even if Thomas Mulcair isn’t yet in on the joke.
What ended the dream of turning the battlefield into one giant courtroom? The march of history — specifically, the history of warfare.
International legal rules governing the conduct of war and the treatment of prisoners were developed in the early and middle parts of the 20th century, a time when wars were fought by uniformed national armies, using conventional weapons, and motivated largely by the conquest of territory. The proposition that we instead would be fighting legions of terrorists with ambiguous territorial ambitions, no clear geographical base or command structure, and motivated by nothing except eschatological fantasies, was then unthinkable.
The Geneva Convention Relative to the Treatment of Prisoners of War has been a particular problem. Article 118 requires that “prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.” Such a provision would have made sense in the aftermath of World War II: No one feared that released German prisoners would come to the United States in small groups to bomb New York office buildings. But, of course, that is exactly what could happen if the hardest-core jihadis lodged at Guantanamo Bay were released en masse (which is why Barack Obama has gone back on his 2008-era campaign promise to close the place down.)
Indeed, how does one even begin to define what constitutes “the cessation of active hostilities” in the current context? In the legal scheme put in place by the Geneva Conventions, the concept of a never-ending jihad waged by implacable fanatics simply does not compute. And as the bin Laden takedown shows, it is impossible to fight such fanatics within the rigid confines of due process or national sovereignty.
Even putting aside the changing nature of the battlefield, there is a more basic problem with the lawyerization of warfare: The conduct of war is, by its nature, an enterprise whose legitimacy must rise or fall on moral grounds. There is a good reason that we recite poetry and battle hymns — ancient words summoning to mind ancient values — instead of statutes and case law when letting loose the dogs of war. You cannot convince men and women to risk their lives by preaching from law books, just as you cannot delegitimize their sacrifice by branding it “illegal.” Cicero had it right when he said silent enim leges inter arma — in time of war, the law falls mute.
Consider just one word: “aggression” — which is a crime under the charter of the ICC. The ratifying nations were unable to agree on a definition for this critical term, and it’s not hard to see why. Were the operations that took out Al-Harithi and bin Laden a form of “aggression”? What about Israel’s 2008-09 campaign in Gaza — or its 2006 invasion of Lebanon? The Six Day War of 1967? The first and second Iraq wars? Russia’s invasion of Georgia? Or for that matter, what about Pakistan’s ongoing indirect — and sometimes not so indirect — support of the Taliban’s terrorist campaign in Afghanistan, not to mention anti-Indian terrorism in Kashmir and Mumbai? Can anyone possibly imagine an “international” group of jurists from different nations and religious backgrounds being able to reach agreement on these questions?
Of course, law and morality are not strangers: If well-drafted, the former can encode the latter. But this trick only works within national societies built around common moral values — a commonality that is absent in the global community at large. There are millions of radicalized Muslims around the world, for instance, who imagine the desecration of a single Koran, or the use of the Prophet Mohammed as a cartoon character, to be a greater crime against humanity than the destruction of the Twin Towers. Even here in the West, you will find activists who describe Israel’s Gaza campaign as a “genocide” or “holocaust” that should be prosecuted with a modern-day Nuremberg trial. Dressing up such radicalism in legal jargon doesn’t discredit Israel or the United States. It discredits the law itself.
The elegant formulations and grand multilateralist aspirations of international law appeal to the natural human hunger for order and peace. But they always will fall to pieces in the real world, where force sometimes must be applied in the name of national interest. The only folks who insist otherwise are those with no expectation or understanding of power. For the NDP, it’s a natural fit.