A US COurt of Appeals recently made an interesting decision- one that may herald a sign of things to come. In the case of Al Bihani v Obama, the Court in effect decided that the United States President should not be bound by International law while detaining a terrorist suspect, ruling that the president could not be bound by the international law of war in these circumstances.
The case was not a blanket rejection of international law as a concept, but it is hard not to see this as a sort of crystallization of America’s reluctance to engage with international justice.
The post 9-11 age has proved to be a huge blow to international law-especially criminal and humanitarian law. Of course with the ICC and the Rwanda and Yugoslavia tribunals still moving merrily along, this may seem like a strange assertion to make.
However all those Courts are dealing with crimes that fall outside the terrorism framework and pose few issues for the domestic law of other states. On a national level, the ‘terrorism age’ (for lack of a better word) has created a crisis for international law.
The United States is the most noteworthy example. The rollback started with George.W. Bush. Under him, the Geneva Convention was tossed aside leaving a legacy of Guantanamo Bay, extraordinary renditions and torture.
Bush in effect took on the doctrine expounded by Richard Nixon, ‘If the President does it that means it is not illegal.’
Bush solidified the idea that to take on this threat, international law-whether binding on the United States or not- had to be ignored.
To rely on it would put the security of the United States in jeopardy. It is ironic that Bush claimed to be relying on international law in invading Iraq, arguing that Saddam was in repeated violations of United Nations resolutions.
Despite being a lot more diplomatic than Bush, Obama is unlikely to reverse Bush’s aversion to international law. His reluctance to punish those who carried out the torture, his refusal to challenge many of the damaging measures created by Bush and his decision to step up air attacks on Pakistan are just a few indications of this.
All this does raise the question- not only whether will have a strong future, but whether it ever had a solid foundation in the first place.
International law in all its guises runs up against an important problem: law evolved as a national concept serving as a glue keeping nations together and a validation of their values. Whether the law accurately represented these values is another story.
When International law attempted to entrench itself in the twentieth century, it faced the same kind of resistance it still comes up against today. Bound up as law is to national ideals, it is also an expression of a country’s national sovereignty.
International law challenges this, and no matter how conciliatory it may be, this is a mountain that is frequently too high to climb. Certainly for criminal law, this national angle becomes even more critical.
And furthermore, international law frequently lacks one of the most critical aspects of law itself-enforcement.
Certainly, while many relevant treaties and conventions have enforcement provisions, this enforcement is rarely applicable in practice.
There is thus little coercion or incentive for countries to adopt this course. Most aspects of international law are therefore seen more as guidelines than anything else.
So throwing global terrorism into the mix only serves to render international criminal and humanitarian law even more redundant in the eyes of many governments.
This is a pity because the cooperative nature of the global approach to law and the combined resources of the individual Countries would make it an attractive proposition to fight terrorism.
In addition, it often provides the kind of moral constraints that would prevent Countries from engaging in the kind of worrying behaviour that we saw under Bush. What role it has to play in the future remains to be seen, but the omens are not good.
Minega Isibo is a lawyer