Jonathan P. Baird

Disrespect for international law has been a hallmark of the Bush presidency. Whether the issue has been the Iraq war, the treatment of detainees or global warming, the Bush administration has looked at international law as a nuisance and an unacceptable constraint on American power.
This view connects to a longstanding tradition of American skepticism about international law. Many on the political right see international law as a threat to American sovereignty. They see our treaty obligations as political and not legally binding.
In practice, the Bush administration has picked and chosen which international rules it has wanted to follow. Free trade agreements protecting foreign investments have been supported. It has junked much else while thumbing its nose at the international community.
For a nation of law and lawyers, this approach must be considered an unmitigated disaster. It misunderstands international law, its history and the increasing need for a working set of international legal rules in an era of globalization.
The United States must follow international law because of our own Constitution. The Constitution decrees that treaties are “the supreme Law of the Land” and that the president “shall take care that the Laws be faithfully executed.”
When the United States became a party to the United Nations charter, it explicitly agreed to abide by its provisions. This is also true of other legal obligations like the Convention Against Torture, the International Covenant on Civil and Political Rights, and the Geneva Conventions.
Since World War II, the United States has actually played a leading role in setting up an international rules-based system. First with the Atlantic Charter and then the UN, the United States committed to three broad principles. These were: a general obligation on states to refrain from use of force in international relations except in self-defense or where authorized by the UN Security Council, protection of human rights, and economic liberalization through the adoption of free trade rules.
Much of the impetus toward the development of international law was the Nazi experience. The appalling crimes of the Nazi war criminals led to increasing awareness of the need to address future Holocaust-like crimes.
The result was the Nuremberg Military Tribunal. The United States, Britain, France, the Soviet Union and 17 other states agreed at Nuremberg to codify the rules of international law on war crimes and crimes against humanity. Nuremberg defined aggressive war in violation of international treaties as the supreme international crime.
These days when we consider the war in Iraq, focus seems to be on issues like whether or not the so-called surge is working. I would suggest that a more fundamental place to begin is with the question of the war’s legality. That issue has been brushed over for years.
United Nations Charter law did not permit the president to launch the Iraq war unless there had first been an armed attack by Iraq against the United States or unless the UN Security Council authorized the use of force. Neither condition was met.
The United States had no legal authority to intervene in the affairs of the Iraqi people. Arguably this is quite different than our response to al-Qaeda where both conditions were met before force was used.
The lessons of the Nuremberg tribunal have continuing relevance today. Heads of state must know they will be held accountable for war crimes and massive violations of fundamental human rights law.
Bush and Cheney deserve to be placed on trial for war crimes. This could happen after Bush leaves office. They unleashed a fantastically destructive war of aggression based on false reasons. Their war-making violated the UN Charter, not to mention the Torture Convention and the Geneva Conventions. Being ultimately responsible, they must be held accountable for torture and for extraordinary renditions where suspects are sent to other countries to be tortured.
For those who believe that prosecution of Bush or Cheney is ridiculous or impossible, I would offer the example of General Augusto Pinochet, the former dictator of Chile. When Pinochet was arrested in Britain almost a decade ago, he argued immunity as a former head of state for all crimes committed after the military coup he led in 1973. Pinochet lost that argument before the British House of Lords although he was later released. The Pinochet example should worry Bush and Cheney.
In articulating the need for international law, I would certainly acknowledge its failures and shortcomings. International law has not been able to stop many oppressive regimes from brutalizing and oppressing their populations. It has not prevented torture, slavery or starvation. Still it is better than the alternative – a world of might makes right where states and non-state actors have no obligations to meet minimum standards of acceptable behavior.
While the U.S. Supreme Court is sharply divided, it is worth noting that a number of justices recognize international law as a legitimate form of legal authority in their decisions. Certainly, the Court’s decision last year in Hamdan v. Rumsfeld relied on the Geneva Conventions.
It is hard to believe that future administrations, either Democratic or Republican, will not reconsider the Bush Administration’s antagonistic stance toward international law. An increasingly interconnected, globalized world will necessitate a more pragmatic approach.