Saturday, May 14, 2011

Kill Osama but not the Dalai Lama?

Bin Laden's death teaches that international law is akin to an ongoing discussion about rights

Allen Z. Hertz was senior advisor in the Privy Council Office serving Canada's Prime Minister and the federal cabinet. He formerly worked in Canada's Department of Foreign Affairs and earlier taught history and law at universities in New York, Montreal, Toronto and Hong Kong. He studied European history and languages at McGill University (B. A.) and then East European and Ottoman history at Columbia University (M. A., Ph.D.). He also has international law degrees from Cambridge University (LL.B.) and the University of Toronto (LL.M.). This posting is a revised version of an essay published in American Thinker on May 12, 2011.

Killing Osama an "open and shut" case?

On May 10, 2011, the New York Times published a Statement from the family of Sheikh Osama bin Laden. The grieving family accused the USA government of unlawful killing in violation of both international law and USA legal principles. I don't have strong feelings about this particular death. However, I still think this could be one of those "teachable moments" about which President Obama has spoken. Specifically, this dramatic killing might remind us that international law is much akin to an ongoing discussion about rights, in which every country and non-governmental organization (NGO) has its lawyers, and every law professor and layman a viewpoint.

And to be sure, the USA government likely has some good legal arguments to justify what it did to Osama. But probably it is a stretch too far to say that the USA government has overwhelming legal arguments that conclusively legitimate this unilateral act committed on the territory of a foreign State.

Osama Bin Laden

Agree who a terrorist?

The government of the People's Republic of China (PRC) applauded the killing of Osama. This should not surprise us, because the PRC government frequently seeks the cooperation of other countries in running its own war on terror. But, that should not cause us to believe that the PRC and USA governments always agree as to who is a terrorist.

For example, look at the case of the Dalai Lama. As a Buddhist spiritual leader, he is revered by millions worldwide. And, there are many who also regard him as a hero because of their perception that he champions the cause of the Tibetan People. By contrast, the Dalai Lama is generally considered to be a villain in China, where he is mostly seen as head of a dangerous separatist movement, alleged to have caused the death of thousands over the last few decades.

Flag of the People's Republic of China

Kill Osama but not the Dalai Lama? 

What legal arguments might the PRC government advance in the unlikely event that it would decide to follow the USA government's playbook with some unilateral action of its own? And here I am thinking of the purely imaginary hypothesis of a People's Liberation Army strike against the Tibetan Buddhist base in Dharamsala, India, to capture or kill the Dalai Lama, whom the PRC government regards to be a criminal just like Osama.

The Dalai Lama

This troubling scenario invites serious reflection on the subjectivity and partisanship of much of the discourse that invokes international law. No surprise there, because whether at home or abroad, law is a social phenomenon tied to politics and political institutions. But, is there a sense in which international law is more directly subordinate to politics than domestic law?

Less commitment to international law?

Domestic law operates within a civil society that is co-extensive with the sovereign State that at home importantly enjoys a monopoly of the use of force. Within that key context, the State normally devotes considerable human and financial resources to various facets of the country's legal system. Thus, a given national government normally has fairly strong incentives to maintain something like the rule of law, i.e. the integrity, consistency, impartiality and efficiency of its own legal system.

By contrast, governments seem to be somewhat less focused on international law, which functions principally in the broader world of States. There, almost every national government seems to be armed to the teeth and largely a power unto itself. Though upholding the rule of law internationally is normally among the interests of national governments, they commonly devote very limited human and financial resources to matters connected with international law and institutions. This marked lower level of investment perhaps suggests that governments may believe that they have more of a stake in domestic law than in international law, which is also less trusted.

Other aspects of perceived national self-interest are in practice often privileged over a government's natural concern for optimal functioning of the international legal system. Though international lawyers tend to think that international law is more important, historians and political scientists often have real doubts about how big a role international law actually plays in the conduct of States.

Law, continuation of war by other means?

Nineteenth-century Prussian military theorist Carl von Clausewitz was among those thinking international law's role to be negligible. A famed proponent of what would later be called Realpolitik, Clausewitz opined that "war is the continuation of politics by other means." On March 27, 1954, The Saturday Evening Post quoted China's Premier Zhou En Lai as cleverly reversing Clausewitz’s famous dictum by saying: “All diplomacy is a continuation of war by other means.”

Significantly, Premier Zhou was not contradicting Clausewitz, because the latter's insight is logically compatible with its converse. In this particular context, international law is legitimately to be understood as part of diplomacy. Thus, it is relevant to note that the chances that international law can sometimes be the continuation of war by other means are significantly enhanced by at least three characteristics of the global system of States:
  • Despite the United Nations, there is no "world government" with -- a monopoly of armed force; sovereign executive and legislative authority; and responsibility for the welfare of all humankind, without discrimination.
  • Despite the International Court of Justice (ICJ), there is nothing like a "world supreme court" with -- truly independent judges; universal compulsory jurisdiction; and capacity to make final legal rulings that are regularly enforced.
  • Despite increasing globalization, each State feels compelled to realize its own vital interests, within a context still significantly marked by stiff competition and difficult partnerships with other States.

Law, tool for political advantage?

A good example of the relationship between politics and international law is provided by the law of the sea. For more than three hundred years, the country with the strongest navy -- once Great Britain and now the USA -- has been the champion of the principle of freedom of the seas, including a right of navigation through "international" straits. By contrast, governments less able to project seapower have tended to favour more expansive jurisdiction for the coastal State. And, exactly these differences play as the USA and PRC governments now approach some disputed questions, including differences over the legal status of parts of the South China Sea.

In Mare Liberum (1609) Hugo Grotius formulated
 the principle that the sea is international.

Law, so certain?

Enhanced thoughtfulness and deeper awareness of divergent perspectives are urgently needed in discussions that rely on the authority of international law. For example, some supporters of the current USA administration have, for a number of years, tended to speak too emotionally and with too much certainty about alleged violations of international law, e.g., by the USA government under President George W. Bush. Within the USA and abroad, this bad habit of being so dogmatic about international law was perhaps accentuated by the debate that began in 2003 over the USA government's role in Iraq.

"International law" rhetoric may also have become somewhat more hyperbolic, due to the proliferation of NGOs like Amnesty International and Human Rights Watch. Questions of international law now regularly receive attention from an increasing number of lawyers and laymen working for a variety of NGOs. There, a polemical discourse is shaped by the circumstance that many NGOs are both special-interest groups and political-action lobbyists.

With this recent experience in mind, it might be useful to encourage calmer, and more wide-ranging and illuminating exchanges about international rights and wrongs. This is difficult, because such an ongoing, open dialogue requires a mutual respect, able to accommodate the other viewpoints that almost invariably deserve to be considered. Audi alteram partem, hear the argument of the other side!

International law is akin to
an ongoing discussion about rights
where every country and NGO has its lawyers
and every law professor and layman a viewpoint.

"Lawfare" versus legal system?

Many Arab and Muslim countries, as well as some of their friends and allies, regularly use international law as "other means" for waging a never-ending war against Israel. They do so principally because they reject Israel's legitimacy and permanence as "the" Jewish State, i.e. as the political expression of the self-determination of the Jewish People in a part of its aboriginal homeland.

Overemphasis on anti-Israel "lawfare" is regrettable, inter alia, because that pattern of behavior undermines the consistency, integrity and reputation of international law and institutions, including the United Nations. Such persistent "lawfare" also likely lowers confidence in the possibility that there could ever be an international legal system that, in some significant sense, is both impartial, and respectful of the principle of the equality of States.

International Court of Justice political?

A prominent instance of anti-Israel "lawfare" was United Nations General Assembly Resolution ES-10114 (December 2003) requesting an advisory opinion from the ICJ on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In July 2004, the ICJ gave an advisory opinion that referred to "the Palestinian People" more than a dozen times. By contrast, absent was any reference to "the Jewish People" or to its specific rights between the Jordan River and the Mediterranean Sea. These Jewish rights are clearly set out, for example, in stipulations of the 1922 League of Nations Mandate for Palestine which is akin to a multilateral treaty.

A skewed reading of the Mandate for Palestine, and largely irrelevant generalizations about the broader system of Mandates established after the First World War, helped the ICJ reach conclusions that conveniently dovetailed with the strong political prejudice already inherent in the 2003 request from the General Assembly. Neither balanced nor persuasive, this advisory opinion probably further impaired the credibility of the ICJ, which previously had already lost much ground in its efforts to keep the trust of governments.

Goldstone Report lawfare?

Similarly flawed was the 2009 Report of the United Nations Fact-Finding Mission on the Gaza Conflict, which was headed by Justice Richard Goldstone of South Africa. The mission's mandate was, "to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza." However, the Goldstone Report notably ignored the rule against bias with respect to mission members, procedure and conclusions. Moreover, Judge Goldstone in 2011 significantly admitted that the mission's report had serious mistakes and did not meet the standards for a judicial or quasi-judicial proceeding.

Judge Goldstone admitted that the 2009 Gaza report
had serious mistakes and did not meet
the standards for a judicial or quasi-judicial proceeding.

The Goldstone Report, the advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory and numerous other instances of anti-Israel "lawfare" suggest that  international law and institutions could play a larger and a more positive role, if more attention is devoted to scrupulously respecting fundamental requirements of fairness and natural justice. As in disputes involving other countries, Israel has explanations and arguments that deserve to be both impartially heard and carefully considered.

Soon regret precedents we set today?

The Obama administration now finds itself involved in a series of controversial international operations of its own -- as in Libya, Yemen and Pakistan. Perhaps this might bring more people round to an understanding that it's probably high time to be somewhat less categorical about what is said to be legal and illegal.

Moreover, fewer exaggerations about international law would be prudent, because with regard to legal system, "what's sauce for the goose is soon sauce for the gander." And certainly, that folksy reminder also applies to the legal discourse on Osama's case.