On Wednesday, Xavier Rauscher at International Jurist posted his response to the hullabaloo over international law and the death of bin Laden. I’ve said my piece on it here and I’m getting tired of the issue, but Rauscher’s post is interesting because he tries to look at the “big picture” – noting that the manner in which bin Laden was killed has thrown more fuel on the fire over the “war on terror” vs “law enforcement” debate.
He also notes the commentary surrounding the fact that the debate over the issue seems to highlight the fact that within international politics we now seem to have two incompatible understandings of what international law is. Rauscher quotes American University Law Professor Ken Anderson who blogged at The Volokh Conspiracy on this point:
…what we call international law has been fragmenting for some time now into different “communities of interpretation and authority” as I somewhere called it. (…) Those communities have moved sufficiently far apart that they no longer share a common basis for authoritative interpretations of international law.
It is important that the doctrinal debate on applicable international law does not lose touch with existing State Practice and more specifically States’ security concerns, lest international law becomes less relevant and hence loses its already relatively weak authority. While I am not arguing that international lawyers need to cave in systematically when confronted with a powerful State’s slightest whim, we must be always careful to address the security needs of States and offer credible and effective solutions to such issues. In the great scheme of things, international law should always be presented as a toolbox of solutions, not problems that may be negatively perceived not only by the States, but public opinion as well.
I agree with this sentiment very much.
However, I do have one major concern about the argument that Rauscher seeks to put forward:
The reason for the urgency is something that people like Kenneth Anderson completely miss in their discourse: that international law, and the international system as a whole, is founded on a fundamental principle that is reciprocity. To claim the right to invade “rogue States” for murky security reasons, to indefinitely detain “enemy combatants” in a never-ending conflict, or to send drones to kill terrorist suspects all over the world is one thing when you are the United States and believe you are a force for good – but it’s a whole other thing when other States, with perhaps less honorable goals, build their own policies on such dangerous precedents to the disadvantage of international peace and security.
There is a danger lying here in invoking reciprocity and I think the implications of it may take Rauscher to a place he may not want to go. Effectively, the principle reciprocity is what neo-conservatives in the United States have put forward as the reason to deny Guantanamo detainees any rights whatsoever. They don’t play by Geneva’s rules (or any rules, really), therefore they don’t have the right to expect treatment by the rules in turn. For example, as Alykhan Velshi and Howard Anglin have argued:
The Geneva Conventions are by no means anachronistic; they remain the proper legal framework for waging a conventional war against a regularly constituted army. But applying the strict letter of the Geneva Conventions to Islamist militants is like applying the Queensbury Rules to a donnybrook. When terrorists have shown no interest in abiding by the Geneva Conventions, it is naïve to think that we can shame them into doing so by treating them as though they have. The best way for the United States to honor the Geneva Conventions is to enforce the principle of reciprocity and deny Geneva protections to those who scorn them.
Part of the issue here is that the role of reciprocity in enforcing the law of armed conflict is not clear. The ICRC categorically rejects the idea that it plays a role in the enforcement of the laws of war (citing the first two common articles to the Geneva Conventions). However, whether or how this take on reciprocity applies to the full spectrum of war law is unclear. Keeping with Rausher’s point about state practice, I think it is fair to say that no state will constantly agree to suffer such grievances forever. As Yoram Dinstein maintains in his book on the law of armed conflict, expecting a state to do nothing in a cases involving a blatant and persistent violation of the laws of war is not reasonable and that the laws of war should not be based “on the unreasonable expectation that, when struck in contravention of LOIAC, the aggrieved State would turn the other cheek to its opponent. This sounds more like an exercise in theology than in the law of war.” (p.26)
I find myself agreeing with Dinstein,that there is still a basis for reciprocity or reprisals in the enforcement of law. However, at the same time, I would say that international law is pretty categorical on the prohibition of reciprocity against individual victims. One needs only look at Common Article 1 of the 1949 Geneva Conventions: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”
So we need to be cautious when we invoke reciprocity, particularly as it relates to the War on Terror. But despite the lack of a precise agreement over the concept, arguing that the fundamental basis of international law is reciprocity full-stop, particularly when it comes to the laws of war, is potentially very flawed. It may be fairer to say that “what goes around comes around”, or warn of the danger of precedent, but the way that Rauscher states it is probably not legally correct (although I stress that he is the actual lawyer and I am the fake one). Worse, it’s an argument that has been used to justify many of the things that Rauscher is warning against.