Sunday, March 12, 2006

The Afghan War and international law

International law specialist Richard Falk in his book The Great Terror War (2003) makes an important observation about the Afghan War that began in 2001 and its implications for international law.

He makes it clear that he supported that war and thought it was a justifiable response to the 9/11 attacks, because Al Qaeda was so closely connected to the Taliban regime in Afghanistan and that country was clearly the terrorist group's main command post at the time.

Still, the United Nations' endorsement of the action has implications for international law that are not entirely clear-cut.  He writes:

It may be helpful to realize that international law, throughout its entire history, has evolved mainly by such a dynamic of adaptation to the special demands of new circumstances, with world community reactions of acceptance or rejection shaping whether the contested action should be treated as "a legal precedent" rather than as "a violation of international law."

Unlike many anti-war activists who extended their condemnation of the Bush administration policies to include the Afghanistan military campaign, the limited war unleashed against the Taliban regime and the al-Qaeda forces in Afghanistan seemed to me to be a reasonable extension of the right of self-defense in the context of a megaterrorist attack, and was so accepted by the Security Council, although less specifically and circumspectly than seems desirable, which would have included the identification of an applicable set of limits on these novel defensive claims. There was a rather casual and mechanical acceptance n the UN of the American claims, reflecting partly the sense that the al-Qaeda attacks made all states vulnerable and sharing an interest in reducing the danger as quickly and effectively possible. There was no reasoned discussion, much less debate, about why the charter should be interpreted as allowing reasonable measures of self-defense even in the absence of an armed attack as generally understood, or about the overall problem of dealing with threats posed by extremist political networks that operate transnationally. International law, which historically evolved and developed over time to cope with relations among  sovereign   states,  needs   to   be   stretched   to   deal   with megaterrorism, if it is to remain at all relevant.

Nevertheless, I believe that the over-generalized US approach to the magaterrorist challenge is dangerously serving to exempt state violence and policies  from being regarded as  terrorism -even when  their violence is  deliberately directed at civilian society. This purported exemption allows governments around the world to rely on large-scale violence against their civilian populations, and avoid the stigma of terrorism, while at the same time tending to taint all reactive violence from oppressed peoples, even in resistance to foreign occupation, as terrorism.  This   "anti-terrorist"   bias  weights   the  outcome  of civic struggles in favor of the state and the status quo, depriving many peoples of the world of their fundamental right of self-determination. (my emphasis)

Recalling that period is a sad reminder of how far we've come.  The overwhelming sympathy and support that the United States received after the 9/11 attacks from virtually every nation in the world was, as Falk notes, unprecedented.  (Not to overdo it; Latin American countries whose experiences with the US haven't always been happy ones were notably less outspoken in their sympathies than many others.)

That great sympathy couldn't last indefinitely, of course.  But it took real effort on the part of the Bush administration to squander it so quickly.

One thing that implies is when the United States suffers another major terrorist attack - and I think the jihadist threat is serious enough that "when" rather than "if" is the better word - it's unlikely in the extreme that the international community will be nearly as generous in their sympathy and support.  Not because they sympathize with the terrorist attacks, but because they won't want to encourage another disastrous adventure like the invasion of Iraq.

It's very unlikely that a German Chancellor or any other European leader, with the possible exception of that sad Tony Blair, will promise "unlimited solidarity" to the US as German Chancellor Gerhard Schröder did immediately after the 9/11 attacks.  Sadly, he quickly discovered that the Bush administration was willing to go far beyond the limits that any German government today would go.

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