THAT EVERYONE AGREES we are at "war," it is time to think
seriously about what that means.
The usual voices—from
the European Union and its various agents of influence in
America—warn us about the importance of "international
cooperation." Americans who are eager to fight back may be
tempted, on the other hand, to dismiss all talk about the
rights of sovereign states. But now, more than ever, clear
thinking about sovereignty is vital.
The first point
to grasp is that, if we take words seriously, there is no such
thing as "war" against abstractions like "terror"—or "drugs"
or "poverty." War is a relation between sovereign states. The
rest is merely policing—or empty rhetoric.
men are shooting back, of course, "policing" may have little
to do with lawyerly notions of due process. It can involve any
force required to abate the violence.
Can we police
outside our borders? In the classical conceptions of
international law, sovereign states can deny outside powers
the right to interfere in their own territory: That’s what
sovereignty means. But this privilege comes with a price. A
sovereign state is obligated to ensure that its territory is
not used as a launching pad for attacks on the territory of
other states. If the host state won’t take action, the victim
state is entitled to do so.
This is not a doctrine
invented in recent times by a starry-eyed U.N. conference. It
follows from the basic idea of sovereignty. One state can only
be expected to respect the territorial integrity of another
when it is safe for it to do so.
So, for example, in
1842, British forces entered American territory from Canada to
seize and destroy a ship loaded with arms for anti-British
rebels in Canada. One American was killed in the resulting
scuffle. Secretary of State Daniel Webster protested that the
British action was precipitate. But he did not deny the
principle that a state is authorized to protect itself when a
neighboring state fails to repress such threats from across
the border. Shortly after our Civil War, Irish nationalists
tried to strike at the British Empire by launching a raid into
Canada from American territory. The United States promptly
apologized, cooperated in rounding up Fenians in New York, and
offered compensation to Britain.
The principle remains
very sound. When a state fails to suppress international
terrorist networks, operating on its own territory, it is
answerable to the countries targeted by the terrorists. A
victim state is then justified when it acts in self-defense
against the host state, even if the host state has indulged
terror networks by negligence or fear rather than deliberate
malice. There can be reasonable dispute about the timing and
degree of defensive action, but not about the principle.
In planning our responses, we should not expect a
great deal of military assistance from Europe or perhaps from
many other countries. But we should certainly strive to get as
much cooperation from other countries as we can. At minimum,
we will need a lot of cooperation in gathering intelligence
and closing escape routes for terrorist networks. That means
it is much in our interest to keep the focus on terrorism—that
is, on basic security—and not let ourselves get distracted by
pompous rhetoric about democracy, liberty, or human rights.
China and Pakistan, for example, may prove valuable
partners in some of our efforts. They have reasons of their
own to be fearful of Islamist extremism and international
terror networks. They cannot be expected to join a campaign
for democracy, however, and it is no credit to democracy to
enlist China and Pakistan under its banner. Right now it is
our business to fight international terrorism, not any and all
things of which we may disapprove. In the campaign against
terrorism, pledging respect for the national sovereignty of
our partners can be an asset and should not be seen as a
When we do take military action,
however, we must judge for ourselves the appropriateness of
our measures. One thing we must therefore ask of our "allies"
in Europe is that they at least put aside their fantasies of
an international criminal court which would judge the legality
of American actions.
This sort of thing is more than a
distraction. It is a challenge to our own national rights. No
international court can protect us against outside attack. No
international court has any means to seize terrorists or to
force harboring states to surrender them. Now that we have
been attacked, no international court should presume to judge
how we react in defending ourselves. If Europeans want to be
neutral in the coming war, they should at least be told to
respect the classic duty of neutrals—which is to refrain from
judging the belligerents.
To those who regard all this
as anachronistic, we should be more forthright. The terror
menace has reached the scale it now has because too many
countries—including our own—have been too willing to replace
the historic claims of sovereign states with ineffectual and
hypocritical international "understandings."
Palestinian Authority, which is not recognized as a sovereign
state (and does not even claim to be one), is allowed to send
delegates to international forums as if it were. Israel is
told that it cannot interfere in "Palestinian territory," but
the Palestinian Authority is not responsible for terrorist
actions launched from that territory.
What is true for
"Palestine" is true, in greater or lesser degree, for Syria,
Libya, Iraq, and other sponsors of terror. We do not hold them
to the standard of sovereign states. We have allowed them to
connive with international terror, so long as they keep it
below a certain acceptable level—and target it away from
Europe or North America. Now it may be that states that have
sponsored terror at a deniable distance have lost control of
the most fanatic terrorist cells.
But the principle
remains: If states do not suppress international terrorist
operations on their own territory, they are failing in their
most basic obligations. The victims of this failure are
entitled to take up necessary policing duties on their own. Or
they are entitled to regard host state failings as
justification for war—against the sponsoring or negligent
states. The United States now stands in the front rank of the
victim states. And in war, toppling the other side’s
government is a time-honored tactic. Let this be clear.
We may not replace the dictatorships of Saddam Hussein
or Bashar al-Assad with a western-style democracy. But we can
hope to see them replaced with regimes that know the price of
their independence is reliable cooperation in suppressing
terror attacks on outsiders. That is the duty of sovereign
states. That’s what we should be fighting for. It is more than
Jeremy Rabkin teaches international law at