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Appeared in: Volume 3, Number 3
Published on: January 1, 2008
Law Abiding

Healing America’s international legal black eye.


For decades, the United States was the loudest advocate of international relations according to law, as well as the scourge of the Soviet Union as a consistent and frequent violator. Today, America has become a symbol of international lawlessness. This phenomenon may owe much to the workings of the balance of power, whereby coalitions of states form against the strongest in order to impose views of the law that impede its freedom of action. Nevertheless, criticism of the United States on international law grounds is especially notable because of the very nature of the United States as a country: the United States is defined by law. Its oaths of citizenship and office holding are pledges to the Constitution, not to a flag, not to a territory, not to the mother- or fatherland, and, of course, not to a sovereign. The law defines who an American is, and it binds each of us to every other.

That is part of the reason why the United States cannot long sustain foreign policies at odds with international law: In the end, Americans will not support them. The American people ask “Is it legal?” before they ask any other question about foreign policy actions short of self-defense against direct aggression. So whatever one may think about the nature of international law, the next administration will have to address the sullied international legal image of the United States. To prepare for this task, we should review the record.

Why International Law Matters

In the wake of World War II, the relevance of international law was obvious. The human cost of the breakdown of international law and order in 1914 and during the 1930s answered the question. The attack on Pearl Harbor killed isolationism as a respectable American position. What it meant was that the United States, as the most powerful democracy and perhaps the most powerful country in the world, had to take responsibility for maintaining international order and building respect for international rules that would keep the dogs of war at bay. One had only to recall images of Hiroshima, Nagasaki or Bikini Atoll to reinforce the message: Nuclear weapons meant there could be no retreat from the effort to build respect for basic legal principles of international conduct and to construct international institutions to foster peace and prosperity. Success would be measured not just in the number of crises averted, but in the avoidance of nuclear war.

One also did not have to explain that the United States was a rule-of-law society and country. The Constitution itself specifies the special place in American law of international law. Article VI provides that treaties are part of “the supreme Law of the Land”, so they are justifiably difficult to sign and ratify.11.
Of course, the United States has a history of making complicated and even uncertain the meaning of this idea. Without getting into the debate about the degree to which treaties are “self-executing”, one is safe in saying that, under the Constitution, the United States is bound to obey the terms of treaties to which it is a party.
Since the Declaration of Independence and Washington’s Farewell Address, American legal and moral values were there for all to see, and where they were not, Americans were the first to trumpet them. Americans have struggled to fulfill their own legal and moral aspirations and have paid the price for their failings. The price has often involved much blood and treasure: the Civil War, the ongoing struggle for civil rights, the never-ending struggle to establish legal equality for all, and the equally long-lived effort to ensure that no person is above the law, to name the most obvious. All of our efforts to vindicate the rule of law have occurred in public, open to the critical assessment of the entire world. Indeed, a watchful world often has been part of the process of vindication, and it is now.

Since the end of the Cold War, we have lived in a Golden Age of international law. There are more treaties covering more subjects and more international organizations than ever before. But we are not concerned here with the kind of international law that means a person with a bank account in Dar es-Salaam can withdraw money from an ATM in New York, Tokyo or Beijing, valuable though it may be. We are concerned, rather, with bodies of law such as those governing the international use of force. These are frequently disparaged or dismissed as non-existent. Even though it has been centuries, if not millennia, since the law truly has fallen silent during the clash of arms, some voices proclaim that such law does not really exist, that it is feckless admonishment, cannot be enforced and has no standing comparable to law within civil society. The United States, on the contrary, has always held that such law does exist and that it is vital to America’s survival.

In the 19th century, the United States was the first country to codify the laws of war, and it was the leading voice for international treaties to outlaw specific classes of weaponry and create international organizations to strengthen peace. In the 20th century, U.S. leadership was indispensable to the creation of the League of Nations, just as our unwillingness to participate in it was a central cause of the League’s failure. Similarly, U.S. support was essential to the creation of the United Nations, and U.S. participation and leadership has been central to such successes as that institution has achieved.

These bodies of law and these organizations are important, not for sentimental but for practical reasons. Respect for the fundamental rules of the UN Charter—such as the prohibition on the threat or use of force against the territorial integrity or political independence of any state—represents a core protection of peace within a system of independent states. Universal respect for this rule alone would do much to reduce international tensions and the risk of war, and to increase prospects for international cooperation—including cooperation to eliminate terrorism by non-state actors.

For all its warts, the UN has spread out the costs of peacekeeping operations, fed millions of hungry and provided legitimacy to the proposition that aid or comfort given to terrorists violates international law. These points were taken for granted during the Cold War, as U.S. officials, among others, understood that international law was part of the fabric of international society that helped reduce the risk of nuclear war. Strengthening the law—defending the law—adopted lessons learned in the brutal first half of the 20th century to the nuclear age. So, to be so widely accused now of having forsaken these understandings and policies is severe criticism indeed.

Doubting America

Iraq, Israel, Kosovo, the International Criminal Court, the Kyoto Protocol, the Land Mines Convention, the Law of the Sea Convention. The list is not quite endless, but it evokes a succession of crises or issues or, what is worse, mistakes such as Abu Ghraib, that have given the United States an international legal black eye. The use of private contractors to conduct governmental security functions has given the United States a domestic law black eye, as well.

But the real sin is that most of the time the United States has failed adequately to explain its international law rationale. For example, the United States followed international law to the letter when it determined not to become a party to the Rome Statute of the International Criminal Court and notified the depository—the Secretary-General of the United Nations—to that effect. It exercised its international legal rights when it did not become a party to the Kyoto Protocol or the Land Mines Convention. The failure to explain both the legality of these decisions and the reasoning behind them allowed critics to assert, and the world to assume, the worst about U.S. motivations. But more importantly, the United States never should have engaged in negotiations on the International Criminal Court, on climate change or on land mines once it became clear that the U.S. Senate would not accept the final document as it was shaping up. To do so reinforced the view that America sees international law as something that may be bent to its whims.

The United States has also exercised both its international legal rights and its international political rights in defending Israel against aggressors and terrorists; yet it has not effectively articulated why—namely, that Israelis have rights as well as Palestinians, and that these rights must be considered in any effort to forge a diplomatic settlement. Too often the argument proceeds in terms of security versus right. Yet right is not all on the Arab side, nor security needs all on the Israeli side. A solution to the Arab-Israeli conflict that accommodates the rights and security needs of both sides is in the U.S. national interest, the interest of international peace and the enduring security of Middle East states.

The United States may not have satisfied the critics in investigating, trying and punishing the violations of law that took place at Abu Ghraib, but it did investigate and it did punish. And while the international legal case for using force against Iraq in 2003 was strong, the United States did not clearly and forcefully articulate it from the highest levels of government. However persuasive, an article in the American Journal of International Law is not a substitute for the president or the secretary of state explaining our government’s legal reasoning.

These examples are symptoms of a broader problem: U.S. policymakers too often do not take the law seriously, and lawyers too often do not address real policy concerns in their legal analyses.

A Return to Basics

There are three steps the next president and secretary of state should take that would have a positive impact on America’s image as a state that abides by the rule of law both at home and abroad. Some of them might produce results quickly; some require longer-term commitments of diplomatic and political resources. All are important and deserve the attention of the best an administration has, not the second string.

First, the president could direct the armed forces and the rest of the U.S. government to return to first principles (Geneva and Hague) with respect to the treatment of prisoners. Second, the president and the secretary of state could engage with the Senate to obtain approval of the Law of the Sea Convention. Third, they could direct a top-flight negotiating team to engage friends and allies—mainly our European Union allies—on the issues we have with existing treaties to which we are not a party, with a view to achieving appropriate changes in order to become parties. In all cases, the president and the secretary of state should explain U.S. views on these and other subjects in terms of law as well as politics.

Prisoners: The treatment of prisoners is an obvious example of U.S. international law problems at several levels. First and foremost, it has been a self-inflicted political and legal disaster for the President and the country. A good place to start to put matters right looking to the next administration is to apply to prisoners in the so-called war on terror the law as we would like it applied to Americans when they are held as prisoners.

It may be that, as a matter of legal theory, the Geneva Conventions apply only to armed conflicts among states, and the existence of non-state terrorist fighters does in truth create a legal no-man’s land. Someone engaging in armed conflict, or helping others to do so, without meeting the Geneva Convention standards for combatant status, however, fails a legal test and becomes subject to prosecution. The more rational and formal the process for making such determinations of legal status the better, and it is not difficult, certainly not for the United States, with armies of lawyers at its command, to conduct appropriate proceedings to make the necessary determinations.

The Bush Administration has not done this. It has instead invoked national security arguments in order to keep judgments about prisoner status out of public view, and these judgments are beholden to no obvious process of review. Others have argued in the Administration’s favor that these kinds of proceedings are time-consuming and anyway not required by U.S. treaty or statutory obligations. One also frequently hears the argument, including with regard to creating specialized national security courts, that this area of law is hyper-technical. In fact, it is no more technical than any other body of law, and a good deal less so than most. Moreover, U.S. courts have addressed issues touching on national security matters at least since the days of Shay’s Rebellion, with no notable diminution of the nation’s security. And, of course, the Supreme Court is not a specialized court, yet it decides cases arising from specialized courts.

If a formal process determines that a prisoner is not entitled to prisoner-of-war status under the Geneva Conventions, then one has to dispense justice without unreasonable delay, and with all the proper safeguards vouchsafed by the Constitution. Holding prisoners in places beyond the reach of the Constitution, such as in Guantanamo, is obviously meant as a way to avoid the obligations required by it. What dismays so many friends of the United States abroad is the simple fact that those who took an oath to defend the Constitution of the United States—and who are the highest legal officials of the land—should go out of their way, in broad daylight, as it were, to devise stratagems whose purpose is to evade that Constitution.



U.S. Army MPs escort a detainee in Camp X-Ray at Guantanamo Bay, Cuba. [credit: Associated Press]

If a formal proceeding determines that a captured combatant is entitled to the protections of the Geneva Convention, then we are on more familiar terrain—or we should be. At the operational level, the United States has traditionally trained its armed forces to treat prisoners in accordance with the 1949 Geneva Conventions, especially so following the Vietnam War. One goal was to make the job and the guidance pertaining to it as simple and clear as possible, so that individuals did not have to exercise judgment beyond necessity. The Conventions are reasonably easy to follow and apply. These facts made the Abu Ghraib revelations all the more shocking.

In addition to the proscription against degrading or inhumane treatment, the Convention against Torture and U.S. law ban torture. No one can say with precision that any particular interrogation technique violates the torture ban, but an arguable case for a technique’s legality is hardly enough to commend it. As the strongest and most insistent guardian of Western civilization, the United States needs not just clean hands, but cleaner hands than others, if it takes that role and responsibility seriously.

As a result, before determining the status of those captured and certainly after—while they are awaiting criminal proceedings or incarceration as privileged combatants—prisoners have to be treated somehow, and the more humanely the better. And in determining what that somehow should be, we could do a lot worse than to focus on what works. Professional interrogators assert that all one needs is time to obtain reliable information from most prisoners. Vassily Grossman’s Life and Fate provides ample evidence of what one can obtain with torture: anything one wants to hear. The evidence from our own experience, not least in World War II, suggests that treating prisoners better than they expect to be treated generates more cooperation than threatening torture, or actually engaging in it.

We have heard arguments to the contrary, including some holding that the special problem of terrorism requires the use of unsavory methods of interrogation in order to save lives. If it ever carried weight, this argument has long since lost its luster. One only has to recall the infamous internment of Japanese-Americans during World War II to realize how judges can behave when confronted by wartime conditions and unsubstantiated claims of threats to national security. It is therefore not enough for officials to claim, as the Vice President did most recently on October 21, that information obtained by torture has saved lives, without specifying exactly how. Even if one could demonstrate that torture worked, one would need to show that other methods could not have worked as well or as readily. No one has made either demonstration.

The treatment of prisoners has become a subject of debate in part because of the need to categorize persons seized in the course of counter-terrorism operations. Different countries are bound by different bodies of relevant law. For example, the United States is bound by the Hague and Geneva Conventions, by the customary law of war, and by its own domestic law. In addition to the Hague and Geneva Conventions, most other countries are bound by the 1977 Geneva Protocols I and II, to which the United States is not party—correctly, in my view—in part because Protocol I arguably gives combatant, and hence prisoner-of-war, status to terrorists. The next administration should therefore call for a new international conversation on the issue of categorization. The aim should be to bring effective and agreed rationality to a difficult problem by the end of the next presidential term in January 2013. Such a conversation would not make the struggle against terrorism more difficult, and it would show that the United States is concerned about conducting that struggle within the rule of law.

The Law of the Sea: Diplomats, commentators and non-governmental organizations view acceptance of certain treaties as a litmus test of a state’s commitment to law. The Law of the Sea Convention, awaiting U.S. adoption for more than a decade, is one such treaty. The next president and secretary of state would do well to push it through if it is not ratified before they take office.

That the Law of the Sea Convention serves U.S. interests is evident from the fact that, even without being a party, the United States follows its tenets anyway. But it does so without one of the principal protections that would result from adoption: the guarantee that other parties will treat America according to the terms of the treaty. Adherence to the Convention would give the United States a stronger hand in asserting freedom of the seas. More important, it would affirm treaty rules that are superior to those that exist in customary law or prior treaty law with respect to innocent passage through straits and archipelagoes and the exploration of seabed resources. Accession would thus simultaneously benefit U.S. interests and the rule of law itself.

By not adhering to the Convention, the United States loses important fruits of diplomatic success. We impede our own ability to insist that the rule of law governs the oceans—a rule of law that reflects successful achievement of our negotiating agenda and that serves our interests as a premier naval and sea-going power. We sacrifice our ability quickly to advance the development of resources beyond 200 nautical miles (approximately 15 percent of our continental shelf). By not adhering, we do not sit on the International Seabed Authority when the Convention gives the United States, and only the United States, a permanent seat and a veto, thus recognizing and acceding to the U.S. price for participation. In any event, the International Seabed Authority’s jurisdiction is narrow, focused only on deep seabed mining, not control of the oceans, where no state has national territorial rights.

If all this is true—and it is—why do some advocate rejection? Criticisms of the Convention—that it creates supranational bodies that detract from the sovereignty of the United States (or other states), that it conveys a taxing power to the United Nations, or that it impedes U.S. national security operations on the high seas or deep sea bed—have no basis in fact: The Navy, the Coast Guard, even the Senate, know these assertions to be false. Yet one reads essays to the contrary signed by authors who should know better.

Crimes, the Environment and Mines: While adherence to the Law of the Sea Convention ought to be an easy rule-of-law “win” for the United States, the Rome Statute on the International Criminal Court, the Kyoto Protocol and the Land Mines Convention require a different approach. These issues have become exhibits for the proposition that the United States is opposed to international law and the rule of law in international affairs. This accusation is unfair.

While there are those who will never accept anything less than full U.S. ratification of these treaties on an “as is” basis, the next administration must still explain to our allies and friends why we cannot accept these texts as they are, and specify what changes would make them acceptable. The United States might not succeed in the way it did with the Law of the Sea Convention, but at least it will have made its case known and shown itself to be interested in international conventions on the subject. The reason for this attitude is neither sentimental nor symbolic: The problem of horrific, criminal conduct in international affairs is real; the problem of climate change is real; and the problems generated by landmines are real, too. The solutions to all these challenges require multilateral approaches. U.S. participation is essential to success, not because the United States is the “sole superpower” but because, alone for the moment, the United States is the “critical margin” required to make any international collaborative effort succeed.

The U.S. objection to the International Criminal Court has three elements. First, the Court is not accountable. Unlike a domestic court, which is accountable within the domestic political system, the International Criminal Court is accountable only to the Assembly of States Parties to the Rome Statute, which means in practice that it is not accountable at all. The consequence is that there is no real oversight of how it exercises its authority to review decisions by governments of whether and how to investigate, prosecute and sentence defendants. Second, there is no appeal from its decisions outside the structure of the International Criminal Court itself. And finally, there are no guarantees of trial by jury or due process and protections against multiple jeopardy, as required by the Constitution. Defenders of the Court respond to these criticisms without evoking legal principles; rather, they point to the officials chosen for the Court and the views of its supporters as “guarantees” that the Court will not go off the rails.

The United States should try again to persuade its allies and friends that our points of dissent must be addressed. At a minimum, the United States could propose, as a pilot program, a scaled-back International Criminal Court, one that could operate only at the behest of the UN Security Council and be accountable to it, just as the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda are accountable to it. The Security Council, not the International Criminal Court, should be the judge of the political considerations and consequences of introducing the Court into a situation of conflict or political turbulence. If such a pilot program were to succeed, one could then re-evaluate the idea of a more independent international court. At the moment, the International Criminal Court is a world-governmental institution with no world government to control it.

The Kyoto Protocol is equally problematic. Multi-faceted and multi-layered interests throw up obstacles to achieving consensus on the right way to balance growth and environmental sustainability in a world of enormous economic and social variation. Yet the effort is worth undertaking. The Kyoto process resulted in some countries feeling that they were the targets of rules whose real purpose was less ameliorating climate change than constraining the U.S. economy. It is almost impossible to imagine a U.S. Senate agreeing to a treaty that it believes to be unfair to the United States.

Avoiding this outcome will require a different negotiating strategy. Perhaps the lessons learned and applied between 1919 and 1945 can serve as an example. In the case of the United Nations, the United States did not repeat Woodrow Wilson’s tactical errors with the Senate. Rather, Roosevelt made sure that the Senate was on board and involved at each stage of the process. As a result, the UN Charter was ratified without a hitch. That should be the goal with respect to any new convention on climate change. No one can guarantee in advance that the Senate will approve a treaty, but one can keep senators fully informed of the progress of a negotiation, just as one can use the fact that two-thirds must approve an eventual document as negotiating leverage.

Similarly, the United States should reexamine the Land Mine Convention to see if some kind of accommodation can be reached. Among the obstacles, of course, is our dependence on mines to protect the demilitarized zone on the Korean peninsula. On the other hand, land mines and anti-personnel mines have been the instruments of terrible, indiscriminate destruction and usage contrary to the laws of war. A way forward might be to reinforce the existing international prohibitions on indiscriminate use of such weapons. The goal would be to allow appropriate defensive use of self-deactivating devices, but not permit the kind of indiscriminate use that has caused great suffering for non-combatants in the past.

None of these ideas provides an easy way ahead for the next president. That is why a first-class negotiating team will be needed to advance them. Our goal should be to have all of these current elements of the damaged U.S. international legal reputation—the applicability of the Geneva Conventions to non-state actors; the Law of the Sea Convention; and the follow-on treaties to the Kyoto Protocol and the Land Mines Convention—settled by January 2013. That may seem like a long time from now, but it is not. We will have our hands full with this agenda alone, not to mention other unforeseen legal issues that may arise along the way.

Restoring the reputation of the United States as a rule-of-law country means working with friends and allies, even occasionally adversaries, to strengthen existing legal norms and develop new ones that ultimately serve the interests of the entire world. That was the hallmark of the UN Charter’s prohibition on the threat or use of force. It has been a standard all have come to recognize as serving their interests, not just the interests of the victorious powers of World War II.

The nuclear non-proliferation regime is an example of an international law development that serves the entire international community. Despite frequent criticism of the 1968 Non-Proliferation Treaty as a failure, any new nuclear weapon state immediately encounters worldwide condemnation for becoming one. This fact testifies to the broad consensus that the world is safer with fewer rather than more numerous nuclear weapons states. It also suggests that the United States can build up the rule of law against proliferation by reminding the international community that it understands and continues to accept the obligation to protect and if necessary defend non-nuclear weapons states against threats of intimidation by any nuclear weapons state—and certainly never to issue such threats itself. That promise, more than any pledge to disarm, is the glue of the non-proliferation regime. Reaffirming the commitment made at the UN Security Council in 1968 might go a long way toward stabilizing the non-proliferation regime and restoring the U.S. rule-of-law reputation.

The effort to restore the reputation of the United States as law-abiding is worth undertaking because the rule of law and true security are ultimately inseparable. The erosion of that reputation has not been the fault of any single party—Democratic and Republican Presidents alike have been cavalier about the law. Restoring our reputation, therefore, should be a bipartisan goal.




1.
Of course, the United States has a history of making complicated and even uncertain the meaning of this idea. Without getting into the debate about the degree to which treaties are “self-executing”, one is safe in saying that, under the Constitution, the United States is bound to obey the terms of treaties to which it is a party.

Nicholas Rostow served as General Counsel to the U.S. Mission to the United Nations, 2001–05. The views expressed are his own and do not necessarily represent the views of the U.S. government or any other institution with which he is or has been affiliated.
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