Origin and Development of International Law after 9/11
Subject: Law | Topics:

International reaction

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 America’s 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.

Let me make the general point more strongly. 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.

This concern and opposition has dramatically intensified outside the United States since 9/11 because the Bush White House has moved from its earlier hostility to multilateralism to its unwillingness to abide by fundamental international legal rules and standards that this country, along with other constitutional democracies, had previously accepted as a matter of course. These rules include humane treatment of prisoners taken during armed combat, unconditional prohibitions on torture and assassination of political opponents, and the duty to protect civilians in any foreign territory under occupation. The most important of all these legal restrictions on foreign policy is the rule of international law prohibiting non-defensive uses of force without a mandate from the UN Security Council. In his 2004 State of the Union Address President Bush told the Congress that the United States would never seek ‘a permission slip’ in matters bearing on its security. But it is precisely a permission slip that international law, and the UN Charter, requires. Such a requirement was written into the Charter largely at the behest of the US Government after World War II, seeking to bind the states of the world to a legal framework that forbade wars of aggression, what more fashionably has been recently called ‘wars of choice.’ German and Japanese leaders were sentenced to death at war crimes tribunals because they had recourse to aggressive wars, and acted without a permission slip.

The Iraq War is a notorious example of a war of choice that violates this fundamental rule of international law.

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 America’s 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.

I wish to address the theme “Everything has not changed since 9/11.” In order to address this issue, however, we need to start with 9/11 and its significance.

It’s been ten years since hijacked commercial airplanes crashed into the World Trade Center, the Pentagon and a field near Shanks Ville, Pennsylvania. The terrorist attacks killed 2,753 people, launched the war in Afghanistan and, indirectly, the war in Iraq. Critics of the Patriot Act — originally passed in the wake of the attacks — say the law violates the civil rights of law-abiding citizens.

Introduction

11 September 2001 terrorist attack has changed many things in the world. Not only USA and its people but also other countries people and its policy makers had believed that USA and its technologic supremacy hadn’t been defeated. But while terrorists with two planes were crashing the WorldTradeCenter’s TwinTowers and Pentagon they were changing the perceptions of terrorist attacks, known by a lot of states.

In this article I aimed to answer some questions. With George W. Bush’s Presidentship, USA faced new threats and entered the new term in its foreign policy. After 11 September 2001, USA has declared two National Security Strategies. In this paper, I will evaluate and discuss these strategies. I will try to determine differences and similarities between them. Finally, I am going to conclude my evaluation according to realities of USA National Security Strategies (NSS).

I) War on Terrorism:

When Second Bush Term comes, in his letter introducing the 2006 National Security Strategy of the USA, President Bush begins portentously (and controversially): “America is at war. This is a wartime national security strategy required by the grave challenge we face—the rise of terrorism fueled by an aggressive ideology of hatred and murder, fully revealed to the American people on September 11, 2001. This strategy reflects our most solemn obligation: “to protect the security of the American people”

(THE WHITE HOUSE, 2002:2)

President Bush is clearly writing not of any traditional inter- State war, but rather of what he has called the ongoing “war on terror”, or as the Pentagon has more recently called it, the “long war”. The assertion that there is an ongoing war leads the President to repeat the controversial legal claims on the use of force made earlier in the 2002 National Security Strategy, and in particular to a reaffirmation of the Bush doctrine of pre-emptive self-defense. (JERVİS, 2005:37) This article will consider whether the 2006 National Security Strategy adds anything to its predecessor as regards the use of force.

Does it develop the Bush doctrine of pre-emptive self-defence? How does the USA apply the law of self-defence to attacks by and against non-State actors in the war on terror?

In May 2003, the USA had announced that major combat operations in Afghanistan and Iraq was over, but that the war on terror continued. U.S. Defence Secretary Rumsfeld proclaimed that major combat operations in Afghanistan were over, following the overthrow of the Taliban regime which had supported Al-Qaida terrorists; Operation Enduring Freedom had been initiated in October 2001 in response to the terrorist attacks of 9/11.(GRAY, 2003:64)

President Bush proclaimed that major combat operations in Iraq were over after the toppling of Saddam Hussein. With regard to Iraq, President Bush asserted that “The battle of Iraq is one victory in a war on terror that began on September 11, 2001 and still goes on… The liberation of Iraq is a crucial advance in the campaign against terror. We’ve removed an ally of Al-Qaida and cut off a source of terrorist funding”. (HOFMANN, 2006:95) This is a renewal of his earlier controversial attempts to establish a link between the regime of Saddam Hussein and Al-Qaida terrorists. In the lead up to Operation Iraqi Freedom, the Bush administration claimed that these links existed, in an attempt to justify the use of force against Iraq as part of the war on terror. But no evidence for the existence of such a link was produced before the invasion of Iraq in 2003.

II) The promotion of freedom

As we have seen, a major focus of President Bush’s letter introducing the 2006 National Security Strategy was the war on terror. However, in his introductory letter, President Bush also went on to stress the “promotion of freedom”: “America also has an unprecedented opportunity to lay the foundations for future peace. The ideals that have inspired our history—freedom, democracy, and human dignity—are increasingly inspiring individuals and nations throughout the world. And because free nations tend toward peace, the advance of liberty will make America more secure”. (THE WHITE HOUSE, 2006:2)

In the 2006 National Security Strategy when it said that “The form that freedom and democracy take in any land will reflect the history, culture, and habits unique to its people”. The tactics of the USA in its support of the “advocates of freedom” will vary, reflecting where each government is on the path from freedom to tyranny.(THE WHITE HOUSE, 2006:22)

III) The National Security Strategy and Pre-Emptive Self-Defence

A) Backround: 2002 National Security Strategy

The 2006 National Security Strategy largely reaffirms the 2002 National Security Strategy and repeatedly refers back to its provisions on the use of force and other topics. Almost every section of the 2006 Strategy begins with a summary of the equivalent section of the 2002 Strategy.

The 2002 National Security Strategy was a dramatic document which provoked much discussion. It was intended to address the need to transform the defence of the nation in response to the end of the Cold War and the emergence of new threats from terrorist attacks following 9/11.(PILLAR, 2003:67)

Its most important feature as regards international law on the use of force was its support for a doctrine of pre-emptive self-defence: “The USA has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security . . . To forestall or prevent . . . hostile acts by our adversaries, the United States will, if necessary, act pre-emptively”.(FRASER, 2005:98) In this context, it suggested a fundamental change in the law on the use of force, in particular on the scope of self-defence. It called for a re-examination of the requirement of imminence in the law of self-defence. It said international law recognized that the use of force against imminent attack was permissible, and went on “We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries”.(THE WHİTE HOUSE, 2002:15) Thus, the 2002 Strategy did refer expressly, but very briefly—and controversially— to international law, in claiming that, for centuries, international law had recognized that nations need not suffer an attack before they could lawfully take action to defend themselves.

B) Operation Iraqi Freedom 2003

The 2002 US National Security Strategy was produced after the terrorist attacks of 9/11 and after the USA had undertaken Operation Enduring Freedom in Afghanistan in response to those attacks. However, it was obviously written with special regard to Iraq when it described the threat posed by rogue regimes which might acquire weapons of mass destruction (WMD) and supply them to global terrorists hostile to the USA and its friends. It is widely acknowledged that Operation Iraqi Freedom demonstrates the danger of pre-emptive action. (AREND, 2008:95)

The Iraq Survey Group set up by the coalition forces after the invasion provided final confirmation of this in October 2004: “after some 1500 inspectors had spent 16 months and US$6000 million scouring the cities and deserts of Iraq, they had found no WMD or any programmes to manufacture them”. The Iraq Survey Group did, however, assert that Saddam Hussein had intended to develop such weapons. The debate continues as to whether it was faulty intelligence or misuse of intelligence involving the politicization of the intelligence services by governments, or both, that led to the assertion the Saddam Hussein was developing WMD and to the decision to use force. President Bush acknowledged in the 2006 National Security Strategy., “Our intelligence must improve”.(THE WHITE HOUSE, 2006:29)

However, he said there would always be some uncertainty about the status of hidden programmes, since proliferators are often brutal regimes that go to great lengths to conceal their activities. And Saddam’s strategy of bluff, denial and deception is a dangerous game that dictators play at their peril. It was Saddam’s reckless behavior that demanded the world’s attention, and it was his refusal to remove the ambiguity he created that forced the United States and its allies to act. “We have no doubt that the world is a better place for the removal of this dangerous and unpredictable tyrant, and we have no doubt that the world is better off if tyrants know that they pursue WMD at their own peril”.(THE WHITE HOUSE, 2006:5)

C) Pre-Emptive self-defence in the 2006 National Security Strategy

In his letter introducing the 2006 Strategy, President Bush says, “We fight our enemies abroad instead of waiting for them to arrive in our country”, and the 2006 National Security Strategy makes a continuing strong commitment to pre-emptive action. It asserts that “The place of preemption in our national security strategy remains the same”.(THE WHITE HOUSE, 2006:23)

The 2006 Strategy repeats the 2002 position that in fighting terrorism, the USA can no longer rely on deterrence; the fight must be taken to the enemy. However, the 2006 National Security Strategy no longer refers merely to the threat posed by “shadowy networks of individuals” as President Bush’s introduction to the 2002 version had done; it now attempts to identify much more precisely the nature of the terrorist threat. The main danger is said to come from “Islamic extremists”, although the Strategy nevertheless maintains that “the war on terror is a battle of ideas, it is not a battle of religions”. (FUKUYAMA, 2007:18) It discusses the causes of terrorism at some length and contests the view that the invasion and occupation of Iraq led to an increase in terrorism.

President Bush has attributed a clear three-step political agenda to “Islamic extremists” or “Islamo-fascists”. First, they want to end American influence in the Middle East because the USA stands for democracy and peace; second, they want to use the vacuum created by an American retreat to gain control of a country, a base from which to launch attacks and conduct their war against non-radical Muslim governments; and third, they believe that controlling one country will rally the Muslim masses, enabling them to overthrow all moderate governments in the region and establish a radical Islamic empire that spans from Spain to Indonesia.

On the other hand, not only is there no mention of international law on the law of force, but also there is almost any reference to the UN in the 2006 Strategy. As in the 2002 Strategy, there is no recognition of the primary role of the Security Council in the maintenance of international peace and security.

D) Rogue States – 2002 and 2006

In 2002, the Strategy identified the most serious challenges to US national security as emanating from the dual threat of rogue States developing WMD and of terrorists who might acquire such weapons. It singled out Iraq and North Korea, and said “We must be prepared to stop rogue States and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends”(THE WHITE HOUSE, 2002:14).

In the 2006 Strategy, the focus shifts to Iran and Syria as State sponsors of terror: “Some states such as Syria and Iran continue to harbor terrorists at home and sponsor terrorist activity abroad”. (THE WHITE HOUSE, 2006:9) In the context of proliferation of WMD, the Strategy singles out Iran again: “We may face no greater challenge from a single country than from Iran”. This is not only because of its attempts to develop nuclear weapons, but also because of broader concerns. “The Iranian regime sponsors terrorism; threatens Israel; seeks to thwart Middle East peace; disrupts democracy in Iraq; and denies the aspirations of its people for freedom”.

IV) Humanitarian Intervention and the 2006 Security

As was mentioned earlier, a major focus of the 2006 US National Security Strategy is on democracy and its power to transform. Does this stress on the “promotion of freedom” lead the USA to call for pro-democratic invasion, regime change or humanitarian intervention?

The USA certainly does not expressly support the use of force to implement democracy in the Strategy. It spells out at length the tools at the disposal of the USA to end tyranny and promote effective democracy, but it does not include in this list any right to use force for these ends. This is a further indication that the USA, despite its willingness to call for regime change in States such as Afghanistan and Iraq, does not wish openly to espouse any doctrine of pro-democratic invasion.(NEACK, 2003:101)

The 2005 UN World Summit had accepted a doctrine of a “responsibility to protect” in its final Outcome Document, this doctrine proved more appealing to States than the earlier doctrine of humanitarian intervention had been. It is significant that the USA says very little on this issue in its 2006 National Security Strategy. Even though it has accepted that States without effective government pose a threat in the context of the war on terror, the USA in the 2006 National Security Strategy does not openly espouse the doctrine of the “responsibility to protect” in cases of humanitarian crisis.

VI) The use of force against non-State actors and the 2006 Strategy

The focus on the war on terror in the 2006 Strategy necessarily raises the issue of the current state of the law on the use of force by and against non-State actors. The Strategy says that the need for action on WMD requires new approaches: both offences and defences are “necessary to deter State and non-State actors, through denial of the objectives of their attacks and, if necessary, responding with overwhelming force”. In the 2006 Strategy, the USA and its allies in the war on terror make no distinction between those who commit acts of terror and those who support and harbor them, because they are equally guilty of murder. (THE WHITE HOUSE, 2006:22)

Conclusion

After 11 September 2001, the terrorist attacks have changed many things in the world. In this article, it has been aimed that what are the differences between 2002 and 2006 American National Security Documents. With Bush Era, USA has implemented “unilateral actions” policies than “co-operation” policies. In 2002 NSS Document, USA has declared “war on terrorism” to protect the security of the American people. George Bush said “it will be long-war”, and the time or eight years administration, justified him. Because so-called “Bush Doctrine” brought the world, only “war, terrorism and security anxieties”. In other words, with 2002 NSS, the world has seen “pre-emptive strike doctrine, Afghanistan and Iraq Wars, rogue states term etc”

The 2006 NSS in a way largely recognition the 2002 NSS and repeatedly refers back to its provisions on the use of force and other topics as I mentioned above. When 2006 NSS Document was declared, USA priorities focused on “Iran and Syria” as sponsorship of terrorism. Especially Irak was identified as a terrorist state that it the Iranian regime sponsors terrorism and also threatens Israel; seeks to thwart Middle East peace; At the same time disrupts democracy in Iraq; and denies the aspirations of its people for freedom.

Finally, In George W. Bush’s eight years administration, both USA and the world face new threats and new problems. But namely, we have seen and tested that the world would be different than the cold war period.

IMPORTANT ARGUMENT ABOUT INTERNATIONAL LAW

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.

Let me make the general point more strongly. 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.

This concern and opposition has dramatically intensified outside the United States since 9/11 because the Bush White House has moved from its earlier hostility to multilateralism to its unwillingness to abide by fundamental international legal rules and standards that this country, along with other constitutional democracies, had previously accepted as a matter of course. These rules include humane treatment of prisoners taken during armed combat, unconditional prohibitions on torture and assassination of political opponents, and the duty to protect civilians in any foreign territory under occupation. The most important of all these legal restrictions on foreign policy is the rule of international law prohibiting non-defensive uses of force without a mandate from the UN Security Council. In his 2004 State of the Union Address President Bush told the Congress that the United States would never seek ‘a permission slip’ in matters bearing on its security. But it is precisely a permission slip that international law, and the UN Charter, requires. Such a requirement was written into the Charter largely at the behest of the US Government after World War II, seeking to bind the states of the world to a legal framework that forbade wars of aggression, what more fashionably has been recently called ‘wars of choice.’ German and Japanese leaders were sentenced to death at war crimes tribunals because they had recourse to aggressive wars, and acted without a permission slip.

But the neoconservatives in and around the White House seem unchastened. Despite the ongoing draining experience of the Iraq occupation, these foreign policy super-hawks are making belligerent noises that suggest the possibilities of further military adventures in the Middle East, targeting Syria first, and then menacing Iran. It is a sign of untamed and lawless militarism that the rightist columnist, Max Boot, writing in the LA Times on September 21, 2005, can argue that it is only targeting difficulties that make it impractical to strike at North Korea’s nuclear facilities from the air. Boot writes as if there are no legal or moral inhibitions on such aggressive uses of force at the whim of American leaders. If other governments were to adopt such a logic the world would quickly become an inferno of violence and extremism.

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

The Iraq War is a notorious example of a war of choice that violates this fundamental rule of international law.

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 America’s 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.

Finally, adherence to international law in matters of war and peace is in the interest of the American peoples and the peoples of the world. There may be humanitarian emergencies or dangerous threats of attack that might justify recourse to war as the UN Secretary General and the UN High-level Panel on Threats, Challenges and Change both conclude, but recourse to war is only legally valid if it is authorized by the Security Council. America and the world will be better off when non-defensive warfare requires in every instance ‘a permission slip.’

911

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