On the 90th anniversary of the end of World War I, JURIST Contributing Editor
Mary Ellen O'Connell of Notre Dame Law School says that US President-elect Obama should act quickly to bring the United States back into compliance with international law, especially by ending America's unlawful use of force...
The First World War ended November 11, 1918. It was to be the end of the war to end all wars. But war did not end, and this country, the champion of the new peace order that followed World War I, is currently involved in the unlawful use of force in four countries. On this 90th anniversary of the end of World War I, America’s new president-elect will do the right thing by recommitting this country — if not to end all war - to end all unlawful war.
Pakistani officials told General David Petraeus on his recent visit to Pakistan to stop the lethal U.S. raids on their country. America has been carrying out attacks on Pakistani soil without Pakistan’s consent. The raids violate Pakistan’s sovereignty; they are a serious violation of Pakistan’s rights under international law, which no state interested in remaining independent can tolerate.
The raids in Pakistan violate Afghanistan’s sovereignty, too, because they are being launched from Afghan territory, without its government’s consent, a government that is struggling to retain authority. Treating it like our vassal does not help.
President Karzai has already contacted President-elect Obama to urge him to stop the bombing of his own country - 37 Afghans were killed last week. Mr. Karzai explained that bombing is no way to deal with terrorism, and, of course, he is correct: using the methods of major war to respond to what is essentially a police problem only exacerbates the problem.
The U.S. has also launched a raid into Syria from Iraq without the Iraqi government’s consent. The Iraqis are now insisting that we commit in a status of forces treaty not to launch raids from Iraqi territory. The U.S. has no right to launch raids from Iraq without Iraqi consent under customary international law, but to enforce the right, Iraqi officials are insisting on a written guarantee in the new treaty. Without the new treaty, the U.S. can lose its right to be in Iraq at any time and our troops become subject to Iraqi courts immediately.
The lack of consent to the raids is, however, only one problem. Even with consent, no country has the right to kill civilians without warning. The right to kill without warning is a wartime right restricted to situations of actual armed conflict and even then to members of the armed forces and civilians directly participating in hostilities.
There is no armed conflict being waged in Syria. In Pakistan, the Pakistani Parliament wants to use police measures, not military force in the border region with Afghanistan. Changing the approach is being obstructed by the U.S., which is treating the region like a war zone and sending unmanned drones that cannot give a warning before unleashing a lethal attack.
Like President Karzai, the Pakistani Parliament is right to urge the U.S. against using war to stop terrorism — the right to resort to wartime tactics is restricted to exigent circumstances, real emergencies when nothing else will work. This rule has grown up over centuries and incorporates our best understanding of what is practical and moral. When police measures can be employed, they should be. Fewer civilians will be killed. The chance of winning “hearts and minds” increases. The United Kingdom’s change in tactics in Northern Ireland is a now widely cited example of how to succeed against terrorists.
By contrast, the U.S. has been fighting in Afghanistan for eight years only to see the Taliban resurge.
When innocent civilians are killed there is always grief and usually anger. When such deaths seem excessive in armed conflict or occur outside an armed conflict, the grief, anger and will to revenge can fuel recruits to violence against those who did the killing.
Outside an armed conflict, even a person who is suspected of being a terrorist, is a civilian. He is a suspect with the right to a trial. He may be arrested, but he may not be simply executed.
The committee I chair for the International Law Association, the Use of Force Committee, presented its initial report on the meaning of armed conflict in international law in August in Rio de Janeiro. The Committee concluded that terrorism is generally a law enforcement problem. Simply declaring that the U.S. is at war all around the globe does not make it legal to kill anywhere and everywhere or detain people in military prisons without trial. Killing in the name of the global war, torturing, establishing Guantanamo Bay, and all the rest has been lawless and counter-productive.
It was such a seriously mistaken and unlawful action to respond after 9/11 with a “global war” instead of far more limited measures that were necessary and proportional to the problem in Afghanistan. The decision for a “global war” and the general pro-war attitude of the Bush Administration officials, especially the neo-conservatives, not only have left us fighting in Afghanistan and Iraq, but more recently in Pakistan and Somalia as well. With our focus on these many wars, we have not solved the problem of terrorism or much else. We are farther from solving the problem of nuclear proliferation in North Korea, Iran, and elsewhere than before the Bush Administration took office. Conflicts rage in Congo, Sudan, Colombia, the Philippines, and between Israel and its neighbors with no end in sight. The U.S. has offered almost no credible solutions.
This country is paying dearly for this lawless behavior — not only are problems not being solved, we have lost our standing in the world and we appear weak and powerless at the negotiating table. President-elect Obama has much good will in the world but he will lose it quickly if he does nothing to get the U.S. back into compliance with international law, especially by ending the unlawful use of force.
But will the foreign policy advisers around the new president-elect tell him this? He seems to have many of the old guard around him, indulging in old thinking, lots of “human rights hawks”—people who advocate for war almost as strongly as the neo-cons. War will not solve the most pressing problems faced by this country and the world—it will only make many of them worse.
The new president needs to think really newly about foreign policy. Part of the change he needs to make is in the personnel who advise him. There are people who know how to deal successfully with terrorism, how to negotiate with Iran without bombing it, how to advance human rights without killing.
The new president would do well, too, to find advisers who know international law and institutions. He needs to really check credentials, however — the lawyers who advised President Bush that he could authorize torture during “the global war on terror” were academics from some of the country’s finest law schools.
Mary Ellen O’Connell is the Robert and Marion Short Chair in Law at the University of Notre Dame. She is the author of The Power and Purpose of International Law (OUP 2008); International Law and the Use of Force (Foundation 2005, 2008). For the ILA Use of Force Committee initial report on “The Meaning of Armed Conflict in International Law” (2008), see http://www.ila-hq.org/en/committees/index.cfm/cid/1022
