The New Statesman Essay - The global policeman must play by a new set of rules
The CIA has been given the green light to assassinate Osama Bin Laden. This is merely the latest ind
The United States and Britain are at war with Afghanistan, but our leaders have told us repeatedly that this is not a traditional war. The aim is not territorial - it is justice. In the careful phraseology of Tony Blair and his ministers, we are fighting to "hold to account" the terrorists who attacked America on 11 September, and to prevent them from carrying out further atrocities. In other words, this campaign is, at heart, a global law-enforcement operation.
The ambiguities of such an operation are becoming more apparent. American newspapers have reported that President Bush has authorised the CIA to do "whatever necessary" to eliminate Osama Bin Laden and his terrorist network. This is assumed to be an implicit reversal of the official order 25 years ago that banned government-sponsored assassinations. The deliberate killing of a specific individual is a grey area in international law. During wartime, it is acceptable to target enemy leaders as part of a military campaign, but not to kill them when they might be taken alive. Outside a state of war, it is simply a crime.
A campaign that presents itself as the validation of law cannot dispense with legal rules in its own operations. One private American intelligence consultant, George Friedman, is openly arguing for what he calls the "Israeli model": "The United States can go to war against the attackers themselves, making it clear that neither geographical barriers nor unproven guilt will protect them." The Israeli model has hardly recommended itself in its original location, where terrorism and Palestinian unrest have merged into a virtual state of war. The terrorist attacks on the United States represented a hostile action on a scale that the administration could not leave unanswered without forfeiting its claim to the maintenance of domestic security. The question of whether this can be done within the existing framework of international law is an urgent one.
Within a liberal democratic state, such as the United States or Britain, the response to a crime is police-work, followed by a trial in a court of law. If the threat to the peace is grave enough, the authorities can go further and declare a state of emergency, with the military called out in support of the police. But the process takes place in an environment where there is a single recognised authority, under established procedures that enjoy the consent of the vast majority of the population.
The central framework of international law, by contrast, has commonly been built around the idea of what has been called an "anarchical society": a collection of sovereign states that recognise no authority above themselves, and do not interfere in each other's internal affairs. According to this model, the principal threat to international peace is organised state aggression; in other words, war. In that vanished world, American predominance was unchallengeable, and American foreign policy was sporadic and inattentive. But with 11 September a new enemy replaced the image of the hostile, threatening power: an international terrorist conglomerate, with its roots in many countries. The new danger is at once geopolitical in motivation and criminal in technique. Al-Qaeda's rhetoric is of jihad, but its structure is that of a global criminal syndicate - with its multinational spread, front organisations, money transfers and the rest.
As Tony Blair and many others have observed, the attacks illustrated the extent to which the world now constitutes a single community. But, to state the obvious, it is not a legal community in the way a single country is. Osama Bin Laden is based in a state that will not surrender him for trial, nor assist in gathering evidence against him. Al-Qaeda has grown with the tacit support of many regimes around the Middle East, who buy time for their own unpopular rule by diverting public discontent towards the convenient monster that is American power. Across swathes of the globe, the international system is seen as an imperial order run by the United States that gives no stake to the dispossessed of the world, and so imposes no responsibilities on them.
Against this background, the United States and its allies face a double challenge. First, to find a legitimate way of achieving justice for a crime of atrocious dimensions, and to minimise the immediate threat of a similar attack. Second, to work towards the construction of an international order that will extend the idea of a meaningful rule of law, and to deal with the conditions that allow the support for terrorism to develop.
Many people in Britain, especially on the left, are uneasy with the naked exercise of American power. But, given that there is no global police force, the US cannot be expected to let the man it believes to be responsible for the attacks of 11 September avoid justice. The action can legitimately be described as self-defence, and the United Nations Security Council has given its endorsement to the battle against terrorism. Nevertheless, there are international rules that apply and within which the United States must act - for instance, the ban on deliberate assassination. If the guiding image of the campaign is the pursuit of justice in a global community, then the implication should be a greater sensitivity than usual to the risk of civilian deaths.
It would be short-sighted and dangerous for the US to think that a military campaign alone can achieve its objectives. The image of the strongest nation in the world pulverising one of the weakest is at once a sign of American power and American impotence. The use of force must be part of a co-operative, not unilateral, approach. For, to freeze the assets of al-Qaeda, America has to work with global banking networks; and the wider struggle against the terrorist network depends on the police and intelligence services of many countries around the world.
What kind of outcome does the idea of enforcing justice entail? A legal proceeding is the only conceivable end to the narrative of law-enforcement that President Bush and Tony Blair have developed. If Osama Bin Laden is captured alive, he will have to be put on trial. Yet the evidence that the British government presented of al-Qaeda's involvement in the attacks fell short of the kind of proof that would be needed in a court of law. And to try Bin Laden would involve risks. Would America be prepared to allow any possibility of acquittal? Conversely, would a trial in an American court-room be seen as fair in the Muslim world?
A number of distinguished lawyers, including Richard Goldstone, the former chief prosecutor of the ex-Yugoslavia and Rwanda tribunals, have proposed that the terrorist attacks should be seen as crimes against humanity, and that any trials arising out of them should be held before an international tribunal, with Muslim as well as western judges on the bench. Would the United States be willing to hand over their public enemy number one to such an unpredictable forum? One danger of the assassination policy that President Bush is said to have authorised is that it will be seen, above all in the Muslim world, as an indication that the legal case was too weak to bring to trial.
The current crisis has shown up the fault lines in today's international system with particular clarity. There is no single recognised global source of authority that can compel obedience, or that has a monopoly of organised violence. Power remains in the hands of individual countries, above all the United States.
It would be defeatist, however, to assume that the idea of an international rule of law has no relevance. Since 1945, an increasingly complex web of institutions and rules has come to fill the international void, regulating the interaction both of countries and their citizens. At the top sits the United Nations, whose revitalised significance was recognised last week with the award of the Nobel Peace Prize. There are the International Court of Justice and the global economic institutions: the IMF, the World Bank and the World Trade Organisation. There are a host of specialist tribunals and semi-formal regulatory bodies that oversee areas such as banking, shipping and investment. More recently, there have been dramatic strides in the development of international criminal law: specially created tribunals to prosecute war criminals from the former Yugoslavia and Rwanda; the reinforcement of the principle of universal jurisdiction for crimes against humanity; the attempted prosecution of General Pinochet; the Rome Statute establishing the proposed International Criminal Court, which may come into being within the next year.
This fledgling international regime is the foundation on which a more far-reaching rule of law might be built. To say this, as John Lloyd wrote in last week's New Statesman, runs counter to the instincts of many progressives. It is, after all, the institutional face of globalisation. However, as this network of legal rules comes to acquire the character of an organised society, it also offers the only foundation on which a more humane international order might be constructed. The economic institutions that make up this system - the IMF, the World Bank, the World Trade Organisation - may now appear as the vehicles of American global imperialism, but they also offer the chance to channel America's wealth in a more accountable direction.
Similarly, the legal structures that are associated with the development of international humanitarian law offer the potential for a new vision of international justice: one that reaches beyond state sovereignty to deal with crimes against humanity. The forthcoming trial of Slobodan Milosevic marks a milestone in the evolution of a worldwide legal community, where gross abuses of human rights are seen as crimes that it is everyone's business to seek justice for. It is unrealistic to think that justice will be visited equally on all offenders. However impartial the prospective International Criminal Court, it will not be able to compel the attendance of defendants from powerful states. But the very existence of a genuinely independent international court will give the international security order something it has never before possessed: a meaningful separation of power between the executive and judicial spheres.
America's commitment to these developments is crucial. America is at once the indispensable sponsor of an international rule of law, and the greatest obstacle to its fulfilment.
The idea that war should be dignified as a remaking of the world is a quintessentially American notion. Twice in the past century, US presidents took their country into world wars with the stated aim of creating a better international order. In 1917, Woodrow Wilson asked Congress for a declaration of war against Germany in the name of "a universal dominion of right by such a concert of free peoples as shall bring peace and safety to all nations, and make the world itself at last free". The League of Nations was the instrument by which this pledge was to be made good. In December 1941, two days after the Japanese attack on Pearl Harbor, Franklin Roosevelt said in a radio address that America had learnt "we cannot measure our safety in terms of miles on any map". He vowed: "We are going to win the war and we are going to win the peace that follows." While the outcome of the conflict was still far from settled, Roosevelt began planning for the United Nations and the economic institutions of the Bretton Woods regime.
The project of creating a harmonious world under law is central to America's sense of itself, as practitioners of realpolitik such as Henry Kissinger have noted with exasperation. However, it is also a project towards which the United States has, since its foundation, felt profound suspicion. America's traditions and values impel it to reject the idea of any authority above itself, any restraint that would limit its freedom of action in an imperfect world. The League of Nations was undermined from the start by the refusal of the US Senate to ratify the treaty that established it. The United Nations has been sidelined by American unilateral policymaking, and starved of money owed by the United States in dues.
In recent years, as the end of the cold war has produced a surge of global co-operation, America's unilateralist trend has intensified. The US has been isolated through its refusal to sign a sweeping array of international agreements: accords on germ warfare and children's rights, as well as the Kyoto protocol on climate change. In particular, President Bush has promised that the United States will refuse to co-operate with the International Criminal Court. Challenged on this disavowal of international negotiation, one of Bush's State Department officials coined the slogan "a la carte multilateralism". Translation: we will only work with other countries when it suits us to do so. Now, though, if the United States wants to claim legal sanction for its pursuit of Bin Laden, and wants the continued legitimacy of international backing, it will have to realise that international co-operation cannot be divided in this way.
To the extent that globalisation is marked by the extension of the reach of international organisations, it is a development that is at odds with unfettered American power. Some on the left have made this argument - for instance, Antonio Negri and Michael Hardt in their recent book, Empire. They recognise that the evolving international system is a free-standing entity with its own universal rules, that it is not merely the extension of one country's dominion. After 11 September, the case looks clearer. The global communications revolution has produced not only world-wide MTV, but also al-Jazeera. Al-Qaeda is as much a representative of global civil society as Human Rights Watch. John Gray wrote recently in this magazine that the terrorist attacks marked the end of the era of globalisation, but it seems truer to say that they demonstrated that globalisation has escaped the control of a single culture or social model.
Progressives who want a fairer global order should embrace the idea of an expanded international rule of law as its foundation. It would be a rule of law ultimately backed by American power, but one that at the same time constrained American power, and put it to the service of a wider world. Meanwhile the United States, now fighting in the name of law, should accept the implications of its own rhetoric. This would mean pursuing justice in a way that is consistent with the international rule of law. It would also mean accepting a new postwar settlement, one that acknowledges that if America wants to live in a world bound by law, it must accept the authority of law over its own actions as well.
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