A quick follow up on the post about the Farouk Abdulmuttalab and the Christmas Day bomb plot. This clip from BBC2’s Newsnight is an excellent summary of the political fallout from the decision to “Mirandize” the suspect and an indication of how deeply divided the country is on the law / war question. I find Senator Graham’s response to Peter Marshall’s question quite interesting. Graham fears changing American law so that there can be detention without trial. He would rather invoke a separate law – the law of armed conflict – to detain enemy combatants without trial. What is interesting about this is how it is potentially changing the Westphalian assumption that only states or state like entities can wage war and have enemy combatant status. Waging war on al Qaeda challenges all kinds of international norms, including state sovereignty, the identification of the combatant and the rights of civilians. Of course, those in favour of the war paradigm do not want the likes of Abdulmuttalab to be a POW, they want after all to be able to detain him indefinitely and prosecute him because he has committed an unlawful act of warfare. But this too challenges a fundamental norm of warfare – the legal equality of combatants. It’s another example of the legal hierarchy that is being introduced into the American notion of war, a hierarchy that is reinforced by the view that US servicepersonnel should not be held criminally accountable under international law (through the ICC for example). So, Graham’s sentiments may be right – ie to protect the principle of no detention without trial in American law, but there are those who do not subscribe to the idea that we can go to war against a transnational network of individuals and they would argue that indefinite detention under the LOAC amounts to the same thing, a breach of human rights. In addition, there is a knock on cost to the other principles (e.g. combatant immunity from prosecution, international order based on state sovereignty) contained within the LOAC.
There have been a few mentions of the Iraq Inquiry on the blogs (also here) I regularly visit, but I’ve been holding back contributing in part because I’ve been hurriedly writing the paper that I presented yesterday at the UK Foreign Office. The event was organised by the BISA British Foreign Policy Working Group and I’d like to thank Oliver Daddow and Jamie Gaskarth for their invitation. Unfortunately, the presentation and panel had to be cut short because of a mix up with the room booking, so I’ve decided to post below the remarks that I used for my presentation. The title of my paper is “The doctrine of international community and the UK decision to invade Iraq” and it draws on some of the evidence from the ongoing Iraq Inquiry.
The purpose of the paper is to try to explain, and then to assess, the UK’s decision to go to war against Iraq in the context of Tony Blair’s doctrine of international community, which he first set out in his Chicago speech of April 1999. I argue that UK diplomacy in the lead up to war cannot be properly understood without reference to the idea of international community, but that ultimately the decision to go to war without the support of the UN Security Council was a betrayal of that idea.
Now, there are some nuances to my normative argument in that paper, but it worth starting by saying something about Blair’s conception of international community, how it may have been flawed from the outset and how it contributed to the Iraq decision.
As I said, Blair set out his vision at the height of the Kosovo crisis, but he also came back to it in his Labour Party conference speech just shortly after 9/11. What’s interesting I think about these speeches is a sense in which Blair is trying to convince us that foreign policy is about ‘values’ as well as ‘interests’; and in that respect he is attacking the classical realist critique of international society. But he says very little about what might be called the critical realist question, which is “who speaks for international society?”
Now, this is something Andrew Linklater noted (in Schnabel and Thakur)when commenting on the five tests for military action, which were of course suggested to Blair by Sir Lawrence Freedman. Those five tests were: are we sure of our case, have we exhausted all options, is the proposed action workable, are we committed to the region for the long term, are national interests involved? What Linklater says is missing from this list is the question, “are others certain of our case, competence and motives?” This has to be answered in the affirmative before a state can rightfully claim to act on behalf of international society; and my argument is that Blair gave insufficient weight to this sixth criteria when deciding to support the US invasion or Iraq.
The evidence that some conception of international society influenced UK policy is I think fairly strong. So for instance, it’s obvious that as much as UK policymakers wanted to see decisive action on Iraq, they did not want to see unilateral American action. So for instance Jonathan Powell told the Iraq Inquiry that
‘[w]e believed unilateral action would have been a terrible thing by America, and we wanted to try and put it in a much wider political context. That’s what we went to Crawford [in April 2002] to try to do and what we tried to do subsequently during that year’.
Further evidence is that for Blair the invasion had to be legal under international law. So, when the Attorney General told him in July 2002 that Resolution 1205 would not be enough to revive the authority granted in Resolution 678 – which had been the claim in 1998 – Blair knew he would have to persuade the US and the UN to get another resolution.
Now, one of the central claims of my paper is that Blair’s main objective was to reconcile the US and the UN positions and for this Blair pursued a two-track approach, both of which he kept open throughout 2002. The first track is perhaps the most commonly understood position, and that was the attempt to convince the Security Council to authorize force to disarm Saddam. From this perspective regime change was necessary for proper disarmament. The second track was that Blair would try to persuade Bush that it was sufficient to disarm Iraq without war or regime change. From this perspective disarmament was in effect a change in the character of the regime.
Now, I for one didn’t give much weight to this second track until the Iraq Inquiry evidence, in particular that given by Sir David Manning who notes that on several occasions Bush said he could disarmament with Saddam in power. To quote Manning,
the President said that ‘if by any chance Saddam accepted and implemented the terms of a new resolution, we would have succeeded in changing the very nature of the regime, and in a colourful phrase, which has stayed with me, he said: “We would have cratered the guy. … and it was a view that was on several occasions conceded by Dr Rice and, indeed, by the President, that if Saddam Hussein accepted the provisions of, as it turned out to be, UN Security Council Resolution 1441, the situation on the ground in Iraq would be so profoundly different that the regime would have changed itself, and, therefore, the threat posed by Iraq to the international community would have been dramatically transformed …
It is likely that Manning and Blair were being overly optimistic about their ability to persuade Bush to accept disarmament as a form of regime change, particularly when we read the Cabinet Office paper of July 2002, which states with some assurance that the American will go to war in January 2003. That reality left the first track the most likely way of achieving their objective, which to repeat was to reconcile US policy with an understanding of international community.
Now, what’s interesting about the evidence from the Iraq Inquiry is that Blair had speculated at the September 2002 meeting with Bush at Camp David that two UN resolutions would be needed, one to set the conditions and one to decide what action to take. Again the July 2002 Cabinet Office paper is interesting in this regard because it suggests the US decision to go to war had been taken and this would affect the attempt to construct a legal basis. It states that it may just be
‘possible that an ultimatum could be cast in terms which Saddam would reject (because he is unwilling to accept unfettered access) and which would not be regarded as unreasonable by the international community. However, failing that (or an Iraqi attack) we would be most unlikely to achieve a legal base for military action by January 2003.’
I suggest in the paper that this pressing timetable may have had something to do with Sir Jeremy Greenstock’s attempt to in effect roll the two resolutions into 1441. He told the Iraq inquiry that he knew he could not get explicit authorization in 1441 so he tried to replicate the 1998 situation where Resolution 1205 implicitly revived authorization under 678. Ultimately that is what Greenstock claims he achieved, it was the argument that Attorney General used in his advice of March 14th and it is what Britain went to war on. Furthermore, if we leave it at that one might conclude that Blair achieved his objective, which was to reconcile US policy with the international community.
There are two problems with this conclusion however.
The first is the interpretation of 1441. On the one side of the debate we have the 3 G’s (Greenstock, Greenwood and Goldsmith) who argue that 1441 only required the Security Council to convene and consider what to do after Iraq was found to be in further material breach; and on the other side we have seemingly every other international lawyer, not least the Foreign Office lawyers (the 2 W’s Wood and Wilmshurst) who argue that the Security Council had to convene and decide what to do. Contrary to the Attorney General, who admits he was influenced by US lawyers on this, the Foreign Office lawyers did not believe individual member state could decide whether military force was appropriate or not
The second is the fact that the Attorney General had said all the way up his advice on the 14th that the revived authority argument was not the safest legal argument. Click here for his advice of the 7th. That of course led Blair to go back to the Security Council to get a second resolution. When he failed to do this he reverted back to an argument that he and (ironically) Robin Cook had used to justify the use of force without explicit authorization from the Security Council. They both argued then that the Russians were being unreasonable in their opposition to NATO and Blair argued in 2003 of course that France was being unreasonable in their opposition to the invasion of Iraq. The problem with this however was that in 1999 Russia would have been using its veto to defend a minority position, whereas in 2003 France would have used its veto to support a majority position. This has since been acknowledged by Greenstock and it was articulated at the time by Cook
It is not France alone that wants more time for inspections. Germany wants more time for inspection; Russia wants more time for inspection; indeed, at no time have we signed up even the minimum necessary to carry a second resolution. We delude ourselves if we think that the degree of international hostility is all the result of President Chirac. The reality is that Britain is being asked to embark on a war without agreement in any of the international bodies of which we are a leading partner – not NATO, not the European Union and, now, not the Security Council.
Regardless of whether one thinks the war was legal or not, I argue that going to war in this situation was unjustified. Furthermore, to claim that it was an action done in the name of international society is not only incorrect, it does immense damage to the normative power of that idea. It lends credence to the cynical side of the realist critique, which is that international society is just a rhetorical veil to cover great power hegemony.
While there’s no shortage of material in the blogosphere on the empirical aspects of this project (interrogation policy, detention, targeted killings etc), one rarely finds posts on Carl Schmitt and the state of exception. Schmitt, his concept of the political, his idea of the exception and his theory of the partisan inspire part of the analytical framework for this project. To be sure there’s no shortage of academic material to be researching and my latest attempt to relate this to the more ‘conventional’ IR approach of English School theory can be found at http://www.personal.leeds.ac.uk/~iisjgr/ – see BISA, December 09 paper. But it’s rare that one finds discussion on active blogs. That’s why Kevin Jon Heller’s recent post at Opinion Juris is interesting. Schmitt, of course, is a controversial figure because of his Nazi party membership and – as Heller puts it – his “near miss” at Nuremberg. But what emerges from Heller’s post is a sense in which too much has been made of Schmitt’s brush with international criminal law. Indeed, it seems the tribunal was not interested in putting Schmitt or his ideas on trial, rather they were interested in him as a witness. Indeed, Heller repeats Joseph Bendersky’s claim that there was little particularly incriminating about Schmitt’s ideas and the claim that he provided intellectual foundations of the regime emerged separately to a proper understanding of his writings.
There are several points to come out of the events of the last few weeks that are pertinent to this project. I am of course referring to the treatment of Umar Farouk Abdulmutallab, the 23 year old Nigerian who tried to blow up the plane travelling from Amsterdam to Detroit. The first thing to say is that Farouk was taken into criminal custody and not classified as an enemy combatant. This is not unexpected of course. It is consistent with the preference for a law enforcement approach to counter-terrorism, and in fact even the Bush administration in the immediate post 9/11 period preferred this approach in a similar case, that of Richard Reid the so-called shoe bomber, who was convicted by a US federal court.
The second thing to note is that the choice of the law enforcement route seems to have worked in providing intelligence on future al Qaeda threats, at least according to the administration. Obama’s counter-terrorist assistant John Brennan for instance defended plea bargains, usual in the criminal justice process, as an intelligence gathering strategy. “Brennan told CNN’s “State of the Union” that other terrorism suspects have “given us very valuable information as they’ve gone through the plea-agreement process.”’ This narrative has not gone unopposed in public discourse, and again the conservative counter-narrative emerges in predictable quarters. In contrast to The Washington Post editorial, the Wall Street Journal for instance reminded its readers that there are costs to the law enforcement approach by noting that Ramzi Yousef, who was convicted of the 1993 World Trade Center bombing, did not lead the US to the capture of KSM. Before that could happen we had to have 9-11 and a change in counter-terrorist and interrogation tactics.
“All of this is directly relevant to the Administration’s rash decision to indict Abdulmutallab on criminal charges immediately after his arrest in Detroit on Christmas weekend. The Nigerian jihadist could have been labeled an enemy combatant, detained indefinitely, and interrogated with a goal of discovering who he had met in Yemen, whether other plots are underway, and much else that might be relevant to preventing the next terror attempt. This is a far higher priority than convicting Abdulmutallab and sending him to jail.”
Likewise, Joe Lieberman, who continues on his journey to the right, is quoted as saying it was a “very serious mistake” to send Abdulmutallab to federal court.
“He was trained, equipped and directed by al-Qaeda in the Arabian Peninsula,” Lieberman said on ABC. “That was an act of war. He should be treated as a prisoner of war, held in a military brig, questioned now, and should have been ever since apprehended for intelligence that could help us stop the next attack or get people in Yemen.”
The third and final (for now) thing to say is that the episode makes it much more difficult for Obama to close Guantanamo, paticularly because of the Yemeni connection. This was made obvious by a recent court decision rejecting the appeal for release of Ghaleb Nassar Al-Bihani. This Washington Post piece spells out the political problem which is running alongside the continuing judicial one.
Several of the roughly 91 Yemeni detainees at Guantanamo Bay have been cleared to be sent home. However, that appears unlikely any time soon because of concerns that deepened when a Nigerian man charged with trying to blow up a U.S. airliner told U.S. investigators he was trained by al Qaeda in Yemen.
In the meantime, Kenneth Anderson over at Opinio Juris posted an interesting and thorough comment on the US stance towards humanitarian intervention within the context of the R2P doctrine. He also explains why President Obama’s Oslo speech may be seen as his endorsement of the broader, unilateralist approach to the use of force on humanitarian grounds.
In contrast with the traditionally pacifist tone of the Nobel Peace Prize lectures, yesterday’s acceptance speech by President Obama started by a shockingly clear recognition that this year’s prize went into the hands of a war president, »the Commander-in-Chief of the military of a nation in the midst of two wars.” He bluntly acknowledged that he is “responsible for the deployment of thousands of young Americans to battle in a distant land. Some will kill, and some will be killed.”
This seemingly simple factual statement reflects the overall realist message of Obama’s Oslo speech: that warfare is unavoidable and that recourse to force may sometimes be “not only necessary, but morally justified”. To those who wondered whether the Nobel Prize will effectively limit Obama’s willingness to resort to military measures, this statement removes any doubts (in case any doubts remained after his decision to dispatch 30.000 additional troops to Afghanistan).
To make sure, Obama does not want to come across as a cynical proponent of war, which in his mind is but a sad expression of “the imperfections of man and the limits of reason”. He warns of the destructive power of war and the tragic implications of today’s “wars within nations”, in which “many more civilians are killed than soldiers; the seeds of future conflict are sown, economies are wrecked, civil societies torn asunder, refugees amassed, children scarred”. Therefore, “no matter how justified, war promises human tragedy […] and we must never trumpet it as such”. However, as much as Obama might personally favour non-violent solutions, as a statesman facing the “cruelty and hardship of our world” and “threats to the American people”, he feels compelled to embrace the sometimes crucial role of “the instruments of war […] in preserving the peace”.
The crucial question in Obama’s mind is thus not whether military force should ever be employed, but when it should be used and how it should be applied. In his speech, Obama carefully outlined the basic contours of what might be seen as an emerging “Obama doctrine” or at least his philosophical stance on the use of American military force abroad. While the Bush administration (for most part) couldn’t care less about the rule of law in the matters of war and national security, Obama strongly defended international institutions and international law.
As to the question of when force may be used (a question of jus ad bellum, regulated primarily in the UN Charter Article 2(4), Chapter VII and Chapter VIII), Obama somewhat surprisingly endorsed some notion of “just war”, which he uses to support recourse to force not only in self-defence, but also on humanitarian grounds. However, Obama importantly limits the reach of the “just war” rhetoric by insisting that legitimacy of any military action ultimately hinges not on subjective political and moral understandings of “just causes”, but rather on shared normative understandings as reflected in international law:
“To begin with, I believe that all nations — strong and weak alike [emphasis added] — must adhere to standards that govern the use of force. I — like any head of state — reserve the right to act unilaterally if necessary to defend my nation. Nevertheless, I am convinced that adhering to standards, international standards, strengthens those who do, and isolates and weakens those who don’t.
Furthermore, America — in fact, no nation — can insist that others follow the rules of the road if we refuse to follow them ourselves. For when we don’t, our actions appear arbitrary and undercut the legitimacy of future interventions, no matter how justified.”
Since Obama offered little explanation of his understanding of self-defence and humanitarian intervention, I think that this strong expression of principled support for international standards on the use of force must be taken into account when evaluating his take on the scope of legitimate and lawful military actions.
For example, it may indicate that his understanding of the right of self-defence is less broad than that of Bush administrations’ pre-emption approach, which clearly went beyond any accepted international standards. We will hopefully get a final answer in the next year’s national security strategy, but according to Bloomberg, the Bush pre-emptive strikes doctrine is being reassessed as part of the Pentagon’s Quadrennial Defense Review of strategy and may be discarded.
Similarly, Obama’s embrace of humanitarian intervention is nothing novel or particularly progressive since he was careful enough to stay in the shelter of vague and open statements. He rightly noted that the questions about “how to prevent the slaughter of civilians by their own government, or to stop a civil war whose violence and suffering can engulf an entire region” are “difficult” and that initial inaction might lead to more costly intervention later. But while he accepted that “force can be justified on humanitarian grounds”, he stopped short of explaining the circumstances and conditions under which such force may be warranted.
More importantly, he said nothing about whether humanitarian intervention should be limited to a collective action on the basis of a Security Council authorization, as endorsed in para. 139 of the 2005 World Summit Outcome Document (I wonder whether his allusion to “clear mandate” may serve as an indication of such limited approach) or whether a unilateral humanitarian intervention without a Security Council authorization, which has little support in either State practice or international legal scholarship, might also be a valid option. Using the intervention in the Balkans as an example of a “justified” humanitarian intervention, one may conclude that he adopts the broader perspective, but again, one should be cautious about putting words into Obama’s mouth that were not there.
With respect to the question of how force may be applied, once the decision to employ it has been taken (this is the question of jus in bello, codified primarily in the 1949 Geneva Conventions and their Additional Protocols of 1977), Obama further reiterated his strong commitment to the rule of law:
“Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct. And even as we confront a vicious adversary that abides by no rules, I believe the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength. That is why I prohibited torture. That is why I ordered the prison at Guantanamo Bay closed. And that is why I have reaffirmed America’s commitment to abide by the Geneva Conventions. We lose ourselves when we compromise the very ideals that we fight to defend. (Applause.) And we honor — we honor those ideals by upholding them not when it’s easy, but when it is hard.”
In drawing a clear distinction between the world that is and the world that ought to be, Obama adopted a classic realist stance on the “cruelty and hardship of our world” and the occasional necessity of employing instruments of war in order to achieve peace. But he also made it clear that looking at today’s problems through a military lens is only a short-term emergency approach. Obama’s Oslo speech may have disappointed those who hoped that he was secretly a pacifist, but his commitment to make any decision on the use of force within the existing framework of international law and international institutions should not be understated. In seeking the balance between the complex realities of his inherited wartime presidency and his personal commitment to uphold the rule of law, Obama walked the path with honesty and dignity.
While Khalid Sheikh Mohammed and four other alleged 9/11 conspirators will finally be tried in a Manhattan district court, following the Attorney General Eric Holder’s decision last month, some other terrorist suspects will still have to face the military commissions. Although this controversial parallel system of justice has been somewhat improved by the 2009 Military Commissions Act, numerous commentators (including myself in a recent post on this blog), have criticized them for remaining a second-class system of justice, violating both the US constitution and international law due-process protections.
Those, who have since been given a chance to observe the work of the “improved” commissions in Guantánamo, clearly add volume to the skeptical voices. According to the representatives of human rights organizations such as the ACLU and Human Rights Watch, the procedures in the case of Ibrahim Ahmed Mahmoud al-Qosi, a Sudanese national charged with conspiring with Osama bin Laden and al Qaeda and providing material support for terrorism, has so far failed to come even close to “the highest standards” of American constitution that Holder pledged to when passionately defending the new military commissions system.