So there’s now officially a debate on the right about the idea of lawfare. One side says: the U.S. is in danger because its weaker enemies are using international law to undermine its objectives. The other side says: there’s nothing to worry about because international law, and even domestic law, is fairly impotent when it comes to restraining America’s ability to wage war. Or to quote Eric Posner’s recent article in The National Interest:
Internationalists of various stripes believe that law stands above and beyond politics. In fact, the use of law depends on power, and is enforced by those who have it against those who do not. Failure to understand this fact will lead the United States down a foolhardy path, wasting resources on unneeded JAGs and tying the military’s hands. The irony is that the hardheaded officials who run the national-security apparatus fear chimeras conjured up by the dreamiest internationalists.
The comment about the JAGs refers to the argument made by Charles Dunlap that U.S. forces should cooperate closely with lawyers to ensure that the United States wields force only in compliance with the law. “The reality is that illegalities do create operational effects which are literally indistinguishable from conventional military defeats,” asserted Dunlap in 2005. The abuses at Abu Ghraib, he continued, “had the same effect as a traditional defeat. The reality is Americans have died and will continue to die as an indirect result of this. It energized the enemy, it eroded the Coalition, it achieved all those kinds of things that you would want if you were going to oppose it through a battlefield defeat.”
Posner would argue that Abu Ghraib wasn’t about law, but morality. As he writes in his article:
Countries at war have always had to contend with arguments that they act with unnecessary brutality. The German “rape of Belgium” was a propaganda coup for the British and French during World War I. Teutonic depredations also fueled the propaganda battles of World War II, but the Allies had to address similar charges after they incinerated German and Japanese cities. These indictments reflected moral, not legal, concerns.
But both of the examples he provides (Germany in WWI and Germany in WWII) had legal ramifications. After WWI, there were trials in Germany (albeit flawed ones) against German soldiers for actions carried out during the “rape of Belgium” (see The Rape of Belgium: The Untold Story of World War I, starting around p. 249). As for WWII, is Posner pretending that the Nuremberg trials never happened? And that 12 Germans weren’t sentenced to death? Both are examples in which one party’s illegalities gave the other side a stronger hand and in which perpetrators of crimes were punished.
It is true, however, and this is what Posner is getting at, that even legal actions can have operational effects indistinguishable from military defeats, to paraphrase Dunlap. After all, in a 2007 editorial, Dunlap criticized NATO, which was attempting to reduce civilian casualties in Afghanistan by holding fire on military targets if there were civilians nearby. It’s legal to kill civilians as long as you intend to hit a military target and if the value of the military target is proportional to the damage done, Dunlap noted. But here Dunlap overestimated the law. Afghans don’t seem to care about proportionality and intended targets. They just don’t want to see NATO forces kill Afghan civilians, regardless of the legality of such actions. (A poll from last fall found that 72% of Afghans believe that ISAF air strikes are unacceptable because they place too many civilians at risk.) So adhering to the law in this case still results in detrimental operational effects.
But the fact that moral concerns beyond the law can have negative operational effects does not mean that the law alone has no effect all. Law-talk and morality-talk often walk hand-in-hand. Take Pope Urban II’s 1095 speech calling for the First Crusade. The speech is well-known for detailing alleged Turkish atrocities that don’t seem to have been rooted in fact. It’s a perfect precursor to the “rape of Belgium” propaganda campaign waged by the Allies in WWI. And it too had a legal element. The crusade would be about upholding “God’s law” and was justified, among other things, by the fact that the Turks had placed idols in Solomon’s temple, an act “contrary to law, human and divine.”
Though Posner argues that such concerns “are political, public-relations and technological threats, not legal ones,” international law and politics are interrelated. For example, when I asked Mary Ellen O’Connell what people could do to convince the Obama administration to adhere to international law regarding targeted killing, she responded that, essentially, people should put political pressure on the Obama administration to abide by the law. Thus, one way in which international law can be enforced is through politics. This does not mean international law has no other enforcement mechanisms, or that it should not be considered “law” at all.
The United States cannot so easily run from international law, as Posner would have it, nor can it so easily amend international law to suit its interests, as Posner’s lawfare-fearing detractors on the right would have it . The Bush administration attempted to expand the scope of the inherent right of self-defense to include preventive strikes, but the international community pushed back, and the new norm never took hold. The United States wanted to target civilians in Afghanistan, but other NATO members would not have it, depriving U.S. forces of that option. In 2003, Donald Rumsfeld wanted to oppose international justice efforts, but, as Jack Goldsmith writes in The Terror Presidency (p.63):
The Department of State argued that any effort by the United States to oppose the increasingly powerful institutions of international justice would seem like a defensive admission of the very war crimes charges it wanted to avoid. The effort would also smack of hypocrisy, the State Department emphasized, since the United States aggressively used human rights institutions – including universal jurisdiction lawsuits – to check human rights abuses by other nations. The Department of Justice also opposed any anti-universal jurisdiction campaign on the ground that it would jeopardize its ability to bring its own universal jurisdiction prosecutions against foreign leaders and terrorists.
Or to put it another way, international law is actually really effective. So effective, in fact, that the United States finds it to be an incredibly valuable tool against its enemies. And the United States cannot escape the fact that it finds itself restrained by the same laws its uses against others. Posner argues that international law is about nothing more than power and is only used by the powerful against the weak. All evidence is to the contrary.
