criteria or the (preemptive) self-defense provisions in the Charter. There was of course a
shared interest in going after an enemy who would use asymmetric violence against the
“civilized world.” But, regarding Iraq in particular, the US arguments
revisions to the Third Geneva Convention did not have to be tolerated by other states,
including close US allies on the Security Council. Indeed, those states could have
registered staunch protests in the name of the law, issued counter-measures if the United
States went ahead with its unilateral actions (or after it did), and otherwise isolated the
United States in order to send a clear message that what the United States had in mind
was beyond the legal pale.
Instead, though they may not have “liked it,” US allies, by not protesting,
essentially deferred to the prerogatives of US officials, that is, they tolerated US behavior
through their non-reactions. What actually happened behind closed doors between the
United States and its allies may never be known. But if I recall my lessons on the
relationship between state practice and the evolution and affirmation of customary
international law, the above would at least provide enough evidence to suggest states’
relaxed reinterpretations of everything from key Charter provisions like Articles 2(4) and
51, the humanitarian protections of the Geneva Conventions, and the human rights
provisions contained in the International Covenant on Civil and Political Rights and the
Torture Convention, not to mention relevant municipal laws. Not only is the United
States stretching the boundaries of these provisions (and undermining the spirit in which
they were written), but other states, in their tolerance, are – as far as we can see presently
– sending the message that such an approach is acceptable.
Further, the United States
does not appear to believe it is violating any rules; instead, it seems to think it is
bestowing a reality check on the rules. If this interpretation is accurate, then intellectuals
and practitioners should reconsider the somewhat natural tendency to hold the United
States to high legal standards when other states appear to have left the question up to a
matter of US security prerogatives. It isn’t a pretty picture for those committed to a
15
US Secretary of State Colin Powell, in trying to convince the Security Council to authorize war in Iraq,
followed his lengthy description of illegal Iraqi activity with the following statement: “We must not shrink
from whatever is ahead of us. We must not fail in our duty and our responsibility to the citizens of the
countries that are represented by this body.” See
.
16
Indeed, the British government has shown that the US is in fact the standard-bearer in this regard. One
wonders if French President Jacques Chirac's statement in January that France was prepared to launch a
nuclear strike against any country that sponsors a terrorist attack against French interests, is an absurd
outgrowth of the flexibility argument.
11
Convention