By: David A. Koplow, Professor of Law, Georgetown University Law Center
I’d like to put before you four propositions about the
nature of law – especially international law - and its relevance and utility in
the currently tumultuous circumstances involving the use or potential use of military
force in so many diverse locations around the world. These propositions are,
deliberately, contestable - indeed, I hope to instigate sufficient controversy
so that a more productive dialog can ensue, testing these propositions and
perhaps refining them for future application.
Before proceeding, however, I’d like to begin with a brief
recital of a passage from legal history that underlies or inspires my interest
in these particular propositions. It comes from Associate Justice Louis D.
Brandeis, dissenting in the famous 1928 U.S. Supreme Court decision in Olmstead
vs. United States, one of the first occasions the Court took to address the
then-emerging practice of wiretapping. Brandeis cautioned that we should be
especially apprehensive about government excesses or intrusions undertaken for
seemingly benign motivations. That is, we should be particularly skeptical
about vigorous actions justified in pursuit of activities that we, basically,
do want the government to serve, such as providing for the common defense and
securing the public order. Brandeis presciently wrote:
Experience
should teach us to be most on our guard to protect liberty when the
government's purposes are beneficent. Men born to freedom are naturally alert
to repel invasion of their liberty by evil-minded rulers. The greatest dangers
to liberty lurk in insidious encroachment by men of zeal, well-meaning but
without understanding.
1. Law does matter.
This first proposition may seem exceedingly modest, merely
asserting that law does make something of a difference in how people and states
approach international politics, crises, and combat. But it has been routinely
challenged by skeptics and “realists,” who assert, in varying ways, that state
behavior is driven exclusively by hard-headed calculations of self-interest.
They claim that states assess short-run and long-run costs and benefits, and
pursue maximum advantage, regardless of what the rules of law may purport to
specify. International law is but an epiphenomenon, they say, and states will
readily ignore it when their interests so direct.
I concede that there is much to this perspective, but I
argue that law does make an independent contribution, in three ways. First,
law matters in creating the institutions, procedures, and modes of
communication through which states conduct their routine dealings; it
establishes the “rules of the road” for orderly international affairs. Like
traditional highway rules of the road, these background structures are rarely
noticed; they are not felt as great impediments to our freedom of action, but
they do facilitate smooth and accident-free daily traffic. This
quasi-governmental infrastructure includes the United Nations, the Vienna
Convention on the Law of Treaties, and various rules such as those about
sovereign and diplomatic immunity. These legal structures constitute, as some
say, “wise restraints that make us free,” in that they provide a relatively
unproblematic venue for the conduct of daily business among states.
Second, law matters in shaping international dealings. It
recognizes state behaviors that may accrete into patterns, and that may further
generate expectations of continuity; other states may, in turn, come to rely
upon these expectations, and an intangible but strong sense of legitimacy may
arise. These crystallizing notions of what states “should” do will affect
state reputations and relationships. They will accordingly influence the
utilitarian calculation that the realists claim is the foundation for state
behavior. Thus, even if one is skeptical about the power and majesty of
international law per se, one may nonetheless concede that it becomes at
least indirectly relevant to the story of international relations, because a
state does care about its reputation, its status as a respectable player in the
family of states, and the willingness of other participants to accept its place
in the community.
Finally, and most dramatically, international law matters
because it contains rules that directly impede the behavior of states, even in
the most important and salient areas regarding the use of military force. I do
not claim that states invariably obey these rules – any more than individual
people invariably obey the domestic rules of a national legal system. We all
know that even in an exceedingly law-intensive society such as the United
States, individuals, corporations, and other actors routinely violate the laws
– the jails are full of miscreants, and there are many more who seem to persistently
evade effective detection, apprehension and prosecution. Why should we be
surprised if international law similarly fails to achieve perfect compliance?
Perhaps the most accurate characterization of our current
condition would be a variation on the aphorism offered by Louis Henkin: Almost
all states obey almost all international law almost all the time. That is
surely far from a satisfactory situation, but I do not believe that a more
powerful assertion could be justified about compliance with domestic law,
either.
In both the domestic and the international systems, the
players do care about their public images and their self-images; they seek to
wrap themselves in the trappings of lawfulness; they see value in sustaining
the posture of “law-abiding citizen”; and they seek to avoid the creation of
precedents that could come back to haunt them when exercised by another,
adverse player.
2. Law is typically a lagging, not a leading, indicator
of the human experience.
Law is rarely on the cutting edge of social developments.
Regarding both domestic statutes and international treaties, by the time the
law-making tool is finalized, often the relevant community has already
pre-resolved the competing pressures and interests, and the legal instrument merely
codifies the consensus that has already emerged. There are, of course,
controversial legislative enactments, judicial opinions, and international
agreements, but more often, the lawmakers are responding to, rather than
anticipating or creating, an emerging cultural understanding.
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This relationship is particularly pronounced regarding
international law, because the global system incorporates only a starkly
underdeveloped, primitive set of lawmaking tools, making international law
fragmentary, slow to emerge and difficult to update. We do not have any real
global legislature that could swiftly prescribe new binding rules to cope with
emergent problems. There is no international judicial mechanism that plays
nearly the role in daily life that courts occupy inside the United States. A
capacious international executive branch is similarly absent, rendering the
global government effectively leaderless on too many issues.
Moreover, when international law does emerge – via treaty,
customary international law, decision of the International Court of Justice, or
any other mechanism – it is too often incomplete, unclear, or of contested
legitimacy. Again, this should not be surprising; it is always difficult for
lawmakers to anticipate with clarity and precision the future needs of the
community; when the law-making apparatus is persistently constipated by
political blockages, we cannot realistically expect better performance.
Perhaps the better wisdom in this regard comes from Oliver
Wendell Holmes, who observed that “The life of the law has not been logic; it
has been experience.” He was speaking there about domestic law, but the lesson
applies equally to international law: because it is so difficult for lawmakers
to anticipate future needs with sufficient clarity, the wiser course is to
adapt incrementally to evolving demands, with the law continuously playing
catch-up.
3. The United States is at its strongest, and its most
effective, when it lives up to the rhetoric of support for the rule of law.
This can be a hard lesson to learn. When a country is a
superpower – a fortiori, when it is the planet’s sole superpower – it
can be tempting to disregard the established international rules in pursuit of
short-term national gain, or to “do the right thing” in response to an
emergency situation, even if it is not quite the legal thing. But these days,
when we nervously observe the rise of China as a near-peer competitor, partner,
and potential adversary, we gain greater appreciation for the value of
constructing a set of enduring rules that bind even the planet’s most powerful
players.
The United States, therefore, needs to be attentive to the
precedents we create, wary that a pattern of contested uses of military force
may open the door for unwelcome emulation by others. When the United States
applies its power to assist Kosovo’s struggle for independence and recognition,
what implications may that carry for Russian actions regarding Georgia’s
separatist regions? When the United States and its coalition allies apply
military might in Libya, Iraq, or Syria, what lessons will others extract
regarding Russian intervention in Ukraine? The situations, of course, are
different – all international crises are sui generis in many respects –
but they carry points of similarity, too, and we should be attentive to how these
actions will appear, when viewed from the perspective of other capital cities.
The “bottom line” cannot be simply a litany that attempts to differentiate U.S.
behavior from others and to and justify U.S. actions with some version of “We
are the good guys.”
In the long run, hypocrisy and claims of “American
exceptionalism” are not a sound basis for international law; to be effective as
a champion of the concept of “rule of law,” the United States has to concede
that sometimes, the law will impede even us from doing things we might
otherwise prefer.
4. Traditional international law – in particular, the law
of armed conflict – provides an adequate basis for starting to address the new
challenges.
We live in a world of dramatic, abrupt, and scary change.
There is rapid technological change – as evidenced by the emergence of cyber
hostilities, drone strikes, and autonomous lethal robotics. There is rapid
political change – as evidenced by the impact of non-state actors, far beyond
anything contemplated by the drafters of the U.N. Charter in 1945, and by the
incessant pressures on statehood (both pressure to dissolve the state into
smaller and smaller entities, and the converse pressure to amalgamate states
into larger and larger regional organizations such as the European Union.)
There is also rapid change in the diversity and persistence of the types of
threats to national security – as evidenced by the newfound apprehension over
global climate change and the eruption of pandemic diseases such as Ebola.
Still, it is important to note that international law in
general, and the law of armed conflict in particular, have endured similar
storms in the past. They have responded successfully to prior “revolutions in
military affairs,” from the invention of the longbow to gunpowder to aircraft
to atomic weaponry. I contend that the core principles – now abbreviated as
requirements for military necessity, discrimination, proportionality and
humanity – will retain their validity and will be able to adapt to the new
provocations.
Of course, modification of many particular rules will be
necessary, sometimes urgently; and numerous new rules may be required to bring
these new factors fully within the ambit of civilized behavior. But the task,
essentially, is one of modification and enhancement of a solid corpus of
still-viable law, not a task of throwing away the lessons of Grotius, Lieber,
and Martens, and starting over with a clean slate.
5. Conclusion
Sometimes, when shrouded by the “fog of war,” dazed
participants may ask whether we still need, and can still count upon, familiar
principles of international law. I argue that it is precisely at these times
of trauma and transition that we need law the most. If we compromise or
abandon our principles during periods of stress, then they aren’t really
principles, they’re just habits. Justice Brandeis, among others, would counsel
against that turn of mind..
*“The Fog of War: Is the Rule of Law Still Relevant?” is the title of a seminar sponsored by the Potomac institute for Policy Studies, and co-sponsored by the Inter-University Center for Terrorism Studies; the Inter-University Center for Legal Studies; the International Center for Terrorism Studies; and the Center for National Security Law at the University of Virginia School of Law. It was held at the International Law Institute in Washington D.C. on September 18, 2014. Professor Koplow made a presentation at the seminar from which this article is taken. His remarks at the above event are published in Terrorism: An Electronic Journal and Knowledge Base, Vol. III, No. 3 (November 2014).
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