International lawlessness, international politics and the problem of terrorism: a conundrum of international law and U.S. foreign policy.

• Author: Acharya, Upendra D.

INTRODUCTION

At the dawn of the 21st century, the world was (as it is today) in the process of working out the power dynamics that would shape this coming century. China, India, Brazil, and many other countries have demonstrated that they are financially and politically stable enough not to be dictated to by the so-called powerful countries. At this time, the United States continues to face the aftermath of the terrorist attacks of September 11, 2001 in New York, Washington D.C., and Pennsylvania. Now the world has begun to analyze whether it should allow the United States' 20th century power monopoly to continue. Will the United States lose its unilateral power base in the 21st century as Great Britain did in the 19th century and continental Europe did in the 18th century? What is the impact that the war on terror has or will have in terms of the sustainability of the power monopoly of the United States? These questions are appropriate this year as the United States and the world community observe the consequences of the decade-long global war on terror that followed the September 11th, terrorist attacks. Since 9/11, many foreign policy practitioners and international legal scholars delivered their perspectives and claim that the event changed the world, the understanding of international law, and the modus operandi and dynamics of international relations. There is also a contrary view that U.S. foreign policy and the approach to international law in that foreign policy has not been world changing. The United States continues to practice the same foreign policy that it did before 9/11, an approach that did not change even after the Bush presidency. (1) The purpose of this article is to address the 21st century world and what place international law should have in international relations and in U.S. foreign policy. In addressing this conundrum, the article will explore the effects of the global war on terror on international law and U.S. foreign policy, what has resulted from these developments, and what, if anything, should be done to eliminate or reduce any negative consequences.

GLOBAL WAR ON TERROR, OR WAR WITH AL QAEDA

On September 11, 2001 members of al Qaeda hijacked four U.S. commercial aircrafts en route to California from the East Coast. (2) The al Qaeda members threatened the passengers and attacked the crewmembers, then redirected the aircrafts to New York and Washington D.C. and used the aircrafts as weapons to attack the United States causing the deaths of 2,973 innocent people. (3) On the evening of September 11, 2001, President George W. Bush, in an address to the nation stated:

The search is underway for those who are behind these evil acts. I've directed the full resources of our intelligence and law enforcement communities to find those responsible and to bring them to justice. We will make no distinction between the terrorists who committed these acts and those who harbor them. (4) On September 20, 2001, in a speech to a joint session of Congress, President Bush announced that the hijackers were part of an anti-American radical Muslim network known as al Qaeda and whose leader was Osama Bin Laden. (5) President Bush also accused the Taliban government of Afghanistan of sheltering and supplying terrorists, he demanded that the Taliban government hand over al Qaeda leaders to the United States immediately or share the consequences. (6) President Bush announced the beginning of the global war on terrorism as follows:

We will direct every resource at our command--every means of diplomacy, every tool of intelligence, every instrument of law enforcement, every financial influence, and every necessary weapon of war--to the disruption and to the defeat of the global terror network.... We will starve terrorists of funding, turn them one against another, drive them from place to place, until there is no refuge or no rest. And we will pursue nations that provide aid or safe haven to terrorism. Every nation in every region, now has a decision to make. Either you are with us, or you are with the terrorists. From this day forward, any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime. (7) Further, President Bush stated in his 2004 State of the Union Address to Congress, justifying the global war on terror, "[a]fter the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. The terrorists and their supporters declared war on the United States. And war is what they got." (8)

The United States invaded Afghanistan to hunt down terrorists shortly after 9/11. Then in 2003, the global war enterprise extended to Iraq. The United States led a "coalition of the willing" to topple Saddam Hussein's government, but never found the weapons of mass destruction President Bush had claimed were there. (9) Despite the United States' efforts to bring peace and democracy to these countries, Iraq and Afghanistan are still in chaos a decade later. (10)

When President Barack Obama took office, the new administration dropped the term "war on terror" and replaced it with "war with al Qaeda and its affiliates." (11) This transformation of "Global War on Terror" to "War with al Qaeda" seemed to change the legal framework of the war and make it more limited; however, in reality, Obama's foreign policies are not significantly different from Bush's--the '"War with al Qaeda" is still a global war. (12) There was an expectation that Obama would adopt an approach based on reasoned judgment rather than a dogmatic ideology, and would dismiss Bush's black-and-white policy of war on terror (either you're with us or against us). (13) Instead, Obama kept the Bush administration's surveillance program intact, the Patriot Act remained on the books, the authority to use rendition continued, the Military Commission was preserved (albeit with more procedural safeguards), the number of unmanned drone strikes increased at suspected terrorist hideouts along the Pakistan-Afghanistan border and in Pakistan (the strikes are suspect from an international law viewpoint and also could be strategically dangerous), and troop levels in Afghanistan were tripled (immediately after Obama received the Nobel Peace Prize). (14) Obama banned the use of waterboarding, but refused to release photographs showing abuse of detainees and a memo about C.I.A. interrogation techniques. (15) Finally, President Obama re-declared that "[o]ur nation is at war" after the Detroit terrorist attempt. (16) The Economist did not hesitate to declare President Obama "[a]nother war president, after all." (17) The global war on terror continues: Afghanistan and Iraq are still occupied by U.S. troops, and, moreover, the war is expanding into other states including Pakistan, (18) Yemen, (19) and Somalia (20) through the use of unmanned drones.

The war on terror has become global in other ways as well. The United States is no longer the only state fighting a war against terrorism; other states are employing U.S.-style tactics against their own "terrorists." Instead of using international legal mechanisms for dealing with conflict, some states are taking politically driven unilateral action to suppress dissention within their own states in the name of fighting terrorism. China, for example, has been accused of "opportunistically using the post-September 11 environment to make the outrageous claim that [Muslim Uighurs] in Xinjiang are terrorists" in order to suppress the Uighurs' religious activities and condemn them as illegal. (21) Russia's struggle to control separatists in Chechnya also turned into part of the war on terror after 2001, allowing Putin to justify his use of force, human rights violations, and Geneva Convention violations as a necessary part of the global war on terror. (22) Taking a non-legal political approach instead of relying on lawful means of conflict resolution as these countries are doing in following the U.S. approach is threatening to create an anarchistic world order and contributing to global disorder and chaos.

CONSEQUENCES OF THE WAR ON TERROR

The global war on terror has raised concerns and issues in many areas of international law and international affairs. These include questions regarding the use of force, human rights, international humanitarian law, irregular rendition, torture, the fate of Afghanistan and other countries that are directly or indirectly said to be connected with terrorism, the legality of the United States military campaign, and the extraterritorial reach of individual nations or groups of nations in securing peace and security in the world. (23) In all of these areas, the international rule of law has been disregarded or violated.

The U.S. War on Terror undermined different rubrics of international law, making international law a primary victim of the war. The already questionable status of international law incurred further distrust. First, the war on terror made provisions of the UN Charter confusing with regard to the legality of the use of force. It is clear that, after 9/11 the problem of terrorism was not addressed through the rules of international criminal law as that law is outlined in the UN Charter and a majority of treaties and resolutions. (24) The Bush administration never bothered to determine whether an act of terrorism constitutes an act of aggression in breach of Article 2(4) justifying an armed response in self-defense within the scope of Article 51 of the UN Charter (25) or whether an act of terrorism constitutes an act of aggression in breach of international peace and security that justifies a collective security approach by the Security Council under Chapter VII of the UN Charter. (26) There are three primary sections contained in the Charter of the United Nations that govern the use of force against Member States. (27) First, Article 2(4) of the Charter provides a blanket mandate against the use...