Every nation's foreign policy depends substantially on its "credit"--on maintaining the
expectation that it will live up to international mores and obligations. Considerations of
"honor," "prestige," "leadership," "influence," "reputation," which figure prominently in
governmental decisions, often weigh in favor of observing law. Nations generally desire
a reputation for principled behavior, for propriety and respectability.
~ Louis Henkin, How Nations Behave,
1979
[T]his is a new type of warfare – one not contemplated in 1949 when the GPW [Geneva
Convention III on the Treatment of Prisoners of War] was framed – and requires a new
approach in our actions toward captured terrorists.
-- Alberto Gonzales, Office of Legal Counsel to the President, on his determination that
the GPW need not apply, 2002.
The Problematic
There is no end to the discussion over what this “new era” ushered in by 9/11
attacks means for international rules of behavior. Academic circles are abuzz with
arguments and counter-arguments, as are the law journals and online discussions,
regarding whether there is a legal basis for the US approach to fighting terror “on all
fronts.” One important question regards whether the existing norms, especially those
governing the use of force and the treatment of prisoners, are or are not adequate to
achieve US security goals.
This paper does not attempt, at least directly, to answer that question.
Rather, the
paper addresses the false dilemma that the question and the polarized (and polarizing)
answers to it that tend to result. Two categories of responses have emerged: what can be
called the “flexible” argument which urges a reexamination if not a reinvention of the
law, and the “vigilant” argument that calls for a careful and full application if existing
rules. Are the laws, e.g., those regarding self-defense and rights of the detained,
adequate as they stand, or aren’t they? What follows is perhaps an over dramatized way
to emphasize the troubling degree of ambiguity, especially legal ambiguity, when it
comes to answering this question:
Flexibility: These are not honorable warriors who obey the rules of law. Why should we
use the rules, when they don’t?
1
Much has been written on it already: there are those who say that the Bush administration’s policies, e.g.,
on detention and judicial review, are not supported by law and legal norms. Certainly others see a change
in circumstance so great and the US security needs so different that today those laws are too restrictive to
take care of the job of fighting terror.
2
Convention