2016: Fateful time for a conversation about international law

Does any of this matter?
Do we care any more about whether one country invades another by military force?
Does it matter how we respond?

It has been 30 years, more or less, since there was any serious conversation about international law in the United States.

The United States lost the Prelimary Objections battle over whether the International Court of Justice had jurisdiction in the case brought by Nicaragua alleging American military intervention in that country, in 1984.

It then refused to participate in the proceedings on the merits.

It also withdrew from the compulsory jurisdiction of the ICJ under Article 36(2) of the Statute of the ICJ, in future cases.  Following World War II, acceptance of that jurisdiction had been a signal achievement of a bipartisan effort in the United States Senate to build an effective Court as part of a system under the U.N. Charter to resolve international disputes exclusively by peaceful means.

Despite its non-participation in the Proccedings on the Merits, the arguments of the United States were made available to and were fully considered by the ICJ.

When, nonetheless, the U.S. lost the Judgment on the Merits in 1986, the United States ignored the court’s decision, in open violation of Article 94(2) of the U.N. Charter.

Though the U.S. never formally complied with the Court’s judgment, domestic legislation cut off funding, and the Contadora process and Arias plan led to a settlement of the conflict in 1987.

Earlier, international law had been swept aside during Ronald Reagan’s first term (1981-1985), with fateful consequences.

The United States supported Sadam Hussein following his military invasion of Iran in 1980, furthering a war of aggression that cost from 500,000 to one million lives. U.S. actions contributed to a hardening of the policies of the revolutionary government in Tehran and its enmity towards the United States.

Ronald Reagan initiated as early as 1981 the covert war against the Sandinista government of Nicaragua, for which it was condemned by the ICJ in 1986, as noted above.

Under the influence of U.N. Ambassador Jean Kirkpatrick (author of the famous “Dictatorship and Double Standards” article in Commentary magazine), the United States initially gave a green light to the military junta in Argentina for that country’s invasion of the British Falkland Islands in 1982.  Only after a month of internal debates did the U.S. reverse its position and support Margaret Thatcher’s miitary campaign to retake the islands, and to defend the fundamental norm in the U.N. Charter prohibiting the threat or use of force against the territorial integrity or political independence of any state.  Reagan deserves credit for eventually getting it right–the costs of abandoning America’s closest ally were too great–but Kirkpatrick’s disdain for international law led to a war which otherwise might have been avoided.

In 1983, the United States invaded and overthrew the government of the Caribbean island of Grenada.

Yet Ronald Reagan also used international law successfully in his second term  in reaching historic arms control agreements with the Soviet Union.

Under George H. W. Bush, international law was used effectively in forming a coalition to repel Iraq’s invasion of Kuwait in 1990, in violation of the U.N. Charter’s prohibition of the threat or use of force.  The formation of that coalition and its military success in pushing Iraq out of Kuwait constituted one of President George H. W. Bush’s and the country’s greatest achievements.

To be sure, during his administration, the U.S. also invaded Panama in 1989, deposing and arresting  the country’s dictator, Manuel Noriega, who was involved in drug trafficking.

During the Balkan wars in the 1990’s, the U.S. and European countries stood aside, except for establishing secure no-fly zones, while ethnic cleasing was carried out by Serbia and the Bosnian Serbs, and others.  Following the massacre of 8,000 men and boys at Srebrenice in July, 1995, the U.S. participated in airstrikes against targets inside Serbian Bosnia. This pressure contributed to the success of the U.S. negotiations with Slobodan Milošević of Serbia, led by Richard Holbrooke who forged a peace agreement in 1995  bringing the worst of the conflict to a halt.

Later, during the Kosovo war, NATO conducted an intense bombing campaign against Serbia to halt ethnic cleansing in Kosovo in 1999.

In a fateful move, George W. Bush invaded Iraq in 2003 in flagrant violation of the prohibition against the use of force in Article 2(4) of the U.N. Charter. During his first term Bush also approved a policy of using torture in interrogations (so-called “enhanced interrogation techniques”), and a policy of “extraordinary rendition” (capturing an individual on the terriory of another state, such as Italy, and then “rendering” him to the territory of a third state, where he might be held in a secret or “black” CIA detention facility, or subjected to torture by the local officials).

Begun under Bush but continued and expanded during the presidency of Barack Obama, a U.S. program deployed unmanned aircraft or “drones” to conduct targeted killings both in the Afghanistan-Pakistan military theater, and far beyond.  Many of these targeted killings were of dubious validity under international law-though a self-judging U.S. maintained otherwise.  A number of strikes known as “signature strikes” were directed against individuals (males 14 years old or older) whose identities were not even known, but who were deemed worthy of execution because their patterns of activities indicated to American officials that they were Taliban or other enemies of the U.S.

Meanwhile, there was a growth in the activities of U.S. special operations forces across a broad swathe of Northern Africa, the Middle East and South Asia which, together with other forces, often engaged in the illegal use of force across international frontiers, usually in covert form. Because of the covert nature of such actions, the details have been scarce though the pattern seems clear.

This process of erosion of the prohbition of the illegal use of force contained in Article 2 (4) of the U.N. Charter culminated with the Russian invasion and annexation of the Crimea in February and March, 2014.  The responses of the U.S. and NATO countries amounted to a policy of pacifism and appeaasement, which did nothring to deter the Russians from invading the eastern Ukraine in August, 2014.

Signficantly, the U.S. and other Western leaders have grown very quiet about the urgent necessity of a withdrawal of Russian forces from the Crimea as required by international law.

The Russian invasions of the Ukraine were followed by the military intervention of Russia in Syria in September, 2015, which the U.S. and NATO initially opposed but quickly caved in on, and in the end did nothing to counter.  Attacking primarily insurgents fighting the Bashar al-Assad regime, many of whom had been supported by the U.S. and its allies, instead of ISIS as Russia claimed, the Russian military intervention has shored up the murderous regime of Bashar al-Assad and enabled him to continue the widespread commission of war crimes and crimes against humanity against his own people–causing over 250,000 deaths since 2011. Russia, which supported al-Assad and the commission of his atrocities before, thereby acquiring through its complicity responsibility under international law, has now itself become a direct perpetrator of these international crimes.

Does any of this matter?

Do we care any more about whether one country invades another by military force?

Does it matter how we respond?

See

“REPRISE: Crumbling world order: Power politics and international law,” The Trenchant Observer, December 4, 2015.

“REPRISE: The last international lawyer, or so it seemed,” The Trenchant Observer, December 31, 2015.

These are questions which should be provoking a vigorous discussion in the United States. Unfortunately, what we hear, particarly in the political campaigns, is radio silence.

This last week, in the Repulican primary debate on January 14 and the Democratic primary debate on January 16, there was not so much as a hint of a reference to international law by any of the candidates.

International law is, however, a subject that cries out to be addressed in the 2016 campaign and election.

It is up to citizens and journalists to inject it into the debate.

So let’s start right here.  The Observer invites all readers to weigh in on these questions, here. Let us start the conversation about international law again, here, and then carry it to a broader audience.

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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