reciprocal obligations and entitlements. In terms of stated US security needs, the
potential disadvantages of violating international laws and norms (e.g., encouraging
reciprocal ill-treatment and provoking international condemnation) do not outweigh the
benefits of unrestricted behavior (e.g., coercive interrogation techniques and open-ended
detentions).
There are of course serious problems with the argument that existing rules are
overly-constraining under the war on terror circumstances. The argument for flexibility
is a slippery slope that promotes an uncertain future and actions that could rock the very
foundations of the international system, not to mention produce long-denounced
humanitarian effects that inevitably result from the rejection of longstanding practice.
The argument opens the door for impunity, evidence of which is the legal black hole in
which those arbitrarily detained in Guantánamo and elsewhere find themselves.
There are other rational reasons to reject this approach. The states that drafted
and accepted the laws of war themselves recognized the benefits of constraining state
behavior, namely the mutual recognition that standard rules of behavior would best
ensure the peace and stability of the international system and the fundamental human
rights of all people. Those who believe the law to be inadequate underestimate the role
that existing rules – e.g., the criteria for permissible self-defense or the provisions for
humane treatment and due process – can play in keeping state power in check and the
related potential of the war on terror to escalate into unknown and dangerous dimensions.
However, this lens does bring into sharper focus the unique nature and scope of
the threat. It raises the possibility that existing rules may indeed not be fully equipped to
cover US (and other states’) security requirements as determined by the policymakers in
their respective capitals. As many have acknowledged, the Bush doctrine of preemption
and the thwarting of the laws of war are neither necessary nor desirable responses.
However, “the Bush administration is right in asking that the traditional interpretation of
international law be reexamined in the face of the new dangers of catastrophic
As Gardner points out, UN Charter Article 2(4) on the use of force
4
The pros and cons were weighed out in a memo from the Office of Legal Counsel by Alberto Gonzales to
the President dated 25 January 2002, regarding “Application of the Geneva Conventions to the Conflict
with Al Qaeda and the Taliban.”
5
Richard N. Gardner, “Neither Bush nor the ‘Jurisprudes’” 97 A.J.I.L. (July 2003), p. 590.
6
It reads: “All Members shall refrain in their international relations from the threat or use of force against
the territorial integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.”
5
Convention