Response to the comments on my Guardian article

This is a rather belated response to the comments on my Guardian article on 2 November.  Unfortunately I couldn’t reply before the comments page closed, in fact I didn’t realise it closed, but still the comments deserve a reply and this is it.   Most tend to agree that there is an issue here about the US unilaterally writing the laws of war.  Then there are those that disagree that what America is doing was contrary to the Geneva Conventions.  These tend to accept the category of unlawful combatant as implicit in the law, or they argue that al Qaeda is a new entity and that international law should recognise as an unlawful combatant.  Then there is the more nuanced criticism (iubkoala), which states that this legal dispute is so technical (“a complicated little argument”) and of marginal significance.  I find this last point interesting and I agree that we really should not be in a situation where we are arguing about technicalities.  But don’t forget it was lawyers for the Bush administration that came up with the complicated little argument that tried to square what they were doing with the Geneva Conventions.  The Geneva Conventions are universal and the US has been trying to say what it is doing is consistent with universal law.  The point of the article is to point out that there are many who think this is not the case.  Now, iukoala and some others may be correct to argue that the US has the right to go its own way and pass its own laws and act according to those laws in other countries.  But let’s be clear about what that is.  That is extending American law extraterritorially. It is not international law.  Indeed, for some the extension of national law under the pretence of it being universal law is imperialism.  Justice Scalia argued that in his Rasul dissent. And yes, international law should evolve, but if it is to evolve legitimately then other states should have a say in it – that’s democracy, right? Ironically, when other states did get together to discuss the evolution of the laws of war in Rome in 1998, and when they created the new International Criminal Court, the US refused to accept the outcome.  Now, again iukoala might say so what – the US has a right to do that. And again they would be right.  The question to ask therefore to ask is political and not legal.  What really has been gained in terms of America’s national interests by these attempts to rewrite the law?  There are many American realists now accepting that the unilateralism of the war on terror has delivered benefits that are marginal and problems that are significant.  This is not a question that only worries liberal Europeans, American realists remain concerned.

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About Jason Ralph

Jason Ralph, Professor of International Relations, University of Leeds
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