03 Feb Dirty Harry and International Law
Thomas P.M. Barnett, formerly of the the U.S. Naval War College and author of The Pentagon’s New Map (a much talked-about book concerning the future of U.S. foreign policy) has an essay entitled “The New Magnum Force: What Dirty Harry Can Teach the New Geneva Conventions” in the current issue of Wired. (See also his blog.) His article is on the need draft new rules that address the new security threats in the changing international system.
So many suspects, so little time. No wonder we bend the rules here and there, declaring terrorists unworthy of protection under the Geneva conventions. It might work for a while – until the photos from Abu Ghraib are posted on the Web, and you have to explain to your kids why that sort of stuff is OK when the bad guys are really, really bad. And if you’re the president? Well, maybe the doubts creep in when your own White House counsel warns you about possible war crimes charges over Guantanamo.
The Geneva conventions, as it turns out, served a few purposes: They created an international order, separated the civilized nations from the outlaws, and protected Americans. The 1949 convention was designed to prevent a rerun of the atrocities of the last great global war – a struggle between sovereign states. Today, we’re waging a new type of war (for us, at least) against a new type of enemy (the Man With No State).
Unless we want to spend the rest of this conflict trying to rationalize police brutality and torture, the US needs to acknowledge (1) that it’s not above the law; and (2) that it needs a new set of rules for capturing, processing, detaining, and prosecuting such nonstate actors as transnational terrorists. In short, we need Dirty Harry to come clean. Frontier justice must be replaced by a real justice system. And there’s nothing wrong with figuring this out as we go along.
The rest of the essay develops his ideas on how “Dirty Harry” can “come clean.” In short, he argues that the U.S. and its allies in the War on Terrorism should continue taking the initiaitve on fighting terrorism but in the long-run, the national interest of the U.S. will be best served by fostering the construction of new norms and international insitutions that guard against the threa of state-sponsored and non-state terrorism. These rules will need to be written by the U.S. and like-minded states engaged in the struggle against terrorism. Consequently, Barnett argues, the UN would not be the best forum for developing these new norms. As he puts it, an organization where Libya can chair the Human Rights Committee lets bad actors off too easily. Instead, the U.S. and its allies should focus on the construction of a new organization, a World Counterterrorism Organization or “WCO.” Thus current state practice by the U.S. and its allies would lead to a new normative structure more conducive to combatting the new threats of failed states, powerful non-state terrorism, etc. These norms, in turn, would then be institutionalized in a WCO.
Although not explicitly about international law, his essay is full of interesting observations and ideas about the relationship of international law to national security and also about the process of international law making. Many of his points are implicit in his argument. For starters: the need to transform from vigilantism to norm-creation; the process of making a new security system by first (arguably) breaking the rules of the current system; the need for international organization;building effective international organizations by not letting all states come around the table; like minded-states writing new norms and then inviting others to join and/or imposing the norms on them.
It is too much to cover in a single post, so I will be returning to these ideas in subsequent posts in the next couple of days. In any case his essay, his book, and his blog make for thought-provoking reading.