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From The National Interest No. 62

Extracts from
The Rocky Shoals of International Law

by David B. Rivkin, Jr., and Lee A. Casey

Although international law has always been a consideration for American foreign policymakers, it has rarely commanded the focus of their attentions. Under the next president, this will have to change. Since the Cold War’s end, a number of international organizations, human rights activists and states have worked to transform the traditional law of nations governing the relationship between states into something akin to an international regulatory code. This "new" international law purports to govern the relationship of citizens to their governments, affecting such domestic issues as environmental protection and the rights of children. Among other things, it would: nearly eliminate the unilateral use of military force; create the unattainable requirement of avoiding all civilian casualties in combat; promote the criminal prosecution of individual state officials by the courts of other states and international tribunals; and permit—or even require—international "humanitarian" intervention in a state’s internal affairs. Recast as such, international law constitutes a real and immediate threat to U.S. national interests.

The impetus for extending the reach of international law stems from both our allies and our adversaries, who have chosen to use it as a means to check, or at least harness, American power. While each group has different strategic goals, from the perspective of both, the great "problem" of international affairs in the post-Cold War world is the unchallenged military, diplomatic, economic and even cultural predominance of the United States. Our global antagonists, particularly China, would like to see the United States disengage from world affairs. For our allies, who continue to depend far too much on U.S. military might to wish for a new American isolationism, the great danger has become American "unilateralism"—an all-purpose term for U.S. action not sanctioned by the "international community." They do not want to prevent U.S. global engagement; they want to influence and control it.

Both our allies and our adversaries understand the value of international law in achieving their ends. Law and its rhetoric have always played a far more important role in the United States than in almost any other country. We are a nation bound together not by ties of blood or religion, but by paper and ink. The Declaration of Independence itself was, at its heart, an appeal to law—the laws of nature and of nature’s God—to justify an act of rebellion against the British Crown. As Alexis de Tocqueville wrote in the early days of the American republic: "[t]he influence of legal habits [in the United States] extends beyond the precise limits I have pointed out. Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings." Tocqueville was clearly prescient. Today almost every key policy issue in the United States is framed as a legal question. Law is our genius and our Achilles’ Heel. If the trends of international law in the 1990s are allowed to mature into binding rules, international law may prove to be one of the most potent weapons ever deployed against the United States.

The good news is that international law, properly configured, should not be viewed as a burden for our foreign policy. Rather, it can function as a positive force, capable of promoting a more stable international environment and advancing our national interest. As the world’s pre-eminent power, we have both the greatest opportunity and the most pressing need to shape international law. To do so successfully in the years ahead, though, will require a keen appreciation of how international law evolved over time and of what specific legal problems have confronted American foreign and defense policy over the last decade. Moreover, international law imperatives will have to be integrated into American statecraft. For just as war is too important to be left to the generals, international law cannot be left solely to the lawyers. . . .

At the core of these efforts is a frontal assault on sovereignty as the organizing principle of the international system. Proponents of the new order are not shy about saying so. Among the new international law’s strongest supporters is Secretary of State Madeleine Albright, who has plainly stated, "Great nations who understand the importance of sovereignty at various times cede various portions of it in order to achieve some better good for their country. We are looking at how the nation-state functions in a totally different way than people did at the beginning of this century."

The Threat to the United States

Although the Clinton administration has been generally supportive of the new international law, its key tenets create problems of the highest order for the United States. First, as a philosophical matter, any attack upon the principle of sovereignty threatens the very foundation of American democracy. Sovereignty is the necessary predicate of self-government. As Vattel wrote, a "sovereign State" is one that "governs itself, under what form so ever." Any limitation on sovereignty as an organizing principle, any "cession", to paraphrase Secretary Albright, is an abdication of the right of the citizens of the United States to be governed solely in accordance with their Constitution, and by individuals whom they have elected and who are ultimately accountable to them. To the extent that international law allows supranational, or extra-national, institutions to determine whether the actions of the United States are lawful, ultimate authority will no longer be vested in the American people, but in these institutions.

Thus, for all of its humanitarian and democracy-building rhetoric, the new international law is profoundly undemocratic at its core. Indeed, with its lack of accountability and disdain for democratic practice (as opposed to rhetoric), it arguably poses the greatest challenge to Francis Fukuyama’s anticipated global triumph of liberal democracy. If the aspirations of today’s international law proponents were ever to prevail, the resulting international system would not remotely resemble a community of democratic nations.

Second, as a practical matter, the new international law has the potential to undermine American leadership in the post-Cold War global system. Even more fundamentally, international law may well make the world safe for aggression, by imposing undue constraints on those countries that are willing to use force to deter and punish it. Although, as noted above, the new international law has a number of manifestations, those elements dealing with the use of military force, and the potential consequences for individual American officials who order or implement its use, are the most advanced and pernicious. As the world’s pre-eminent military power, with global interests and responsibilities, the United States should be very concerned about any effort to create international judicial institutions capable of prosecuting individual soldiers, officers and elected officials in the chain of command.

The international criminal "norms" applied in these courts, both in the ad hoc criminal courts for the former Yugoslavia and Rwanda and in the International Criminal Court, are ambiguous in their meaning and remarkably fluid in their application. For example, one of the "war crimes" prosecutable in the ICC is defined as "[i]ntentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated." Whether any particular attack causes "excessive" civilian injuries or environmental damage is very much a matter of opinion.

This is, in fact, a crime that can be tailored to fit almost any circumstances, as was all but openly acknowledged by the prosecutor’s office of the Yugoslav tribunal during its investigation of alleged NATO war crimes. This investigation was undertaken after a number of NGOs complained that nato’s 1999 air campaign against Serbia resulted in too many civilian deaths. As candidly noted in the report to the prosecutor, "[t]he answers to these questions [regarding allegedly excessive civilian casualties] are not simple. It may be necessary to resolve them on a case by case basis, and the answers may differ depending on the background and values of the decision-maker. It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants. Further, it is unlikely that military commanders with different doctrinal backgrounds and differing degrees of combat experience or national military histories would always agree in close cases."

The key underlying problem here is that injuries to noncombatants and their property—so-called "collateral damage"—are an endemic consequence of combat. As a result, the traditional law of war, jus in bello, although proscribing certain hostile actions toward civilians, eschewed overly rigid rules on collateral damage. Unfortunately, instead of continuing to rely on the broad, traditional jus in bello principles of proportionality and discrimination, the new norms have come to resemble American domestic regulatory law. These rules are overly prescriptive and proscriptive, to such an extent that ensuring full compliance has become almost impossible. This is particularly the case because the new international law seems to suggest that zero civilian casualties and no collateral damage are not only attainable outcomes in modern combat, but that these should be the norm. The combination of the unrealistic norms and unaccountable judicial bodies that would apply them is particularly problematic.

The American military is particularly vulnerable here. This is because U.S. military doctrine has always been attrition-oriented, emphasizing the intensive application of firepower and the use of "decisive force." It is inevitable that damage to civilian sites, and civilian casualties, will result. This is all the more likely given the growing American aversion to combat casualties, which forces our military commanders to rely more and more on air strikes and missile attacks. This raises the real possibility that American soldiers and officials will be considered subject to prosecution, even in situations where the intervention has been "humanitarian" in character, as with the air campaign against Serbia. . . .

However, the United States is not required to accept the new international law, and would be foolish to do so. Rather, we should actively work to shape international law in ways that both support our national interests and that are consistent with our philosophical foundations. In this, we would simply be following the examples of other great powers, past and present, which have understood the importance and value of a favorable international legal system. An excellent example of such behavior is provided by the efforts of the great seventeenth and eighteenth-century maritime powers, Britain and the Dutch Republic, to mold the principle of "freedom of the seas" to their commercial and naval needs. As its dependence on maritime trade increased, the Dutch Republic argued for the broadest principle of free navigation—especially after its naval supremacy gave way to that of Britain. On the other hand, Britain’s support for this international norm ebbed and flowed with its need to impose successful naval blockades on Continental aggressors, specifically, France and Germany. . . .

From The National Interest No. 62, Winter 2000/01.

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