Shaking the Foundations
UK Secretary of State for Defence John Reid recently gave a widely publicized speech called "20th-Century Rules, 21st-Century Conflict". Defence News (follow the link to the speech) summarized Reid's theme: the era of great power wars is probably over and the system of laws which stemmed from them may no longer be suitable for the wars of the 21st century.
Mr Reid said that the strategic landscape and its threats were new and unprecedentedly complex, with interlocking uncertainties in the ecological, economic, political and social spheres. The barbarism and lack of constraint of our terrorist opponents made it necessary to consider considering the legal framework in which they and we operated. The Defence Secretary said that without making specific proposals, it was time to ask whether current international law-originally developed for a world of state-to-state conflict now needed to be rebalanced between security and freedom, as UK domestic legislation has been. In particular, did international law adequately now address:
- the threat from international terrorists, who can now threaten mass casualty attacks -and where there might be a case for new Geneva Protocols ?
- the potential need to take pre-emptive action against imminent attack?
- the possible requirement to intervene to stop mass murder and genocide?
Although delivered in quiet, non-inflammatory phrases, Reid's speech nevertheless managed to impugn three of the basic pillars of international law. His first question is whether the Geneva Convention needs to be updated.
For centuries conflict between tribes, cities and states was completely unbridled and savage. Very gradually, mankind developed a range of conventions that they applied to constrain and moderate what is in essence a brutal activity. Eventually, these agreements became rules, which became laws. ... But warfare continues to evolve, and, in its moral dimensions, we have now to cope with a deliberate regression towards barbaric terrorism by our opponents. A few weeks ago I spoke to students at King’s College here in London about the uneven nature of the modern battlefield, and the unconstrained enemy ranged against us. ... Historically, of course, laws have always been adapted to better suit the times. When they have become out-dated, or less relevant, or less applicable to the realities of the day they have been modified or changed. This is true of all laws, domestic or international.
Reid's second point enters the disputed waters of when pre-emptive military action may be legitimately undertaken. It is widely believed that pre-emptive attacks are illegal except where authorized by the UN Security Council or in national-self defense. (A discussion on the legality of pre-emptive force against Saddam Hussein's Iraq may be found here.)
The UN Charter reads in article 2(4): "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations." ... This principle is now considered to be a part of customary international law, and has the effect of banning the use of armed force except for two situations authorized by the UN Charter. Firstly, the Security Council, under powers granted in articles 24 and 25, and Chapter VII of the Charter, may authorize collective action to maintain or enforce international peace and security. Secondly, Article 51 also states that: "Nothing in the present Charter shall impair the inherent right to individual or collective self-defence if an armed attack occurs against a state."
John Reid asks whether in a time when small groups of combatants can inflict first-strike mass casualties it is still feasible for governments to await authorization from the UN or await actual attack before striking to remove the danger.
In 2004, my colleague the Attorney General explained the current position under international law when he said: "International Law permits the use of force in self-defence against an imminent attack but does not authorise the use of force to mount a pre-emptive strike against a threat which is more remote…military action must only be used as a last resort….the force must be proportionate." Difficult as it is, I think all of us here – including representatives from academia, the legal profession, diplomacy and journalism need to consider these issues now rather than waiting for the next threat to come along, and I’ll explain why. ...
But what if another threat develops? Not Al Qaeda. Not Muslim extremism. Something none of us are thinking about at the moment. The proliferation of Weapons of Mass Destruction has coincided with the growth of those prepared to use them. We know that terrorist groups continue to try and acquire such weapons and that they have described their willingness to use them. We also know that they continue to seek opportunities to launch attacks on a similar or greater scale as 9/11. Hopefully, we would learn of any such threat before any atrocities had been committed. I believe we would have strong legal grounds to take action to protect ourselves against attack. I also suspect that others would disagree. A debate would centre around "imminence". The very significant consequences of action or inaction in these circumstances should give us all pause for thought.
John Reid's last point challenges the principle of territorial sovereignty which has underpinned international law since the Peace of Westphalia. "Following the Thirty Years' War ... the Peace of Westphalia in 1648 established the notion of territorial sovereignty as a doctrine of noninterference in the affairs of other nations." The doctrine of noninterference resulted in the opacity of sovereignty, in which the community of nations was literally blind to acts committed by sovereigns within their borders, however brutal those might be. Saddam Hussein for example, could gas the Kurds and the US actions to topple him for these and other reasons are perceived by some (such as by the Christian Peacemaker Teams, for example) as "illegal". But Reid asks whether this opacity can still be sustained.
Again, we can illustrate the relevance of the question by reference to our own domestic history. Most of us in this room can remember an ethos in our culture in this country whereby it was accepted that police would arrest a man for punching his neighbour, but would decline to get involved if he did the same to his wife. Society and the law's approach to domestic violence changed, thankfully, and I am extremely proud that this government has done so much to reflect those changes with the new legislation and public campaigns. The question is how far we need to go in considering similar developments in international law. Just as in the Balkans in the early 1990s, we can find ourselves operating in situations where the state is either unwilling or unable to protect its citizens from murderous attacks.
Reid's points taken together comprehensively call into question the international constitutional system. It is unlikely the issues raised by those questions will be resolved any time soon because those issues are typically addressed by the victors after a war (Utrecht, Westphalia, Vienna, Versailles, etc) to codify a consensus that has emerged in the course of events. All one can say with the conflict still in progress is that current concepts of the Rules of War, pre-emption and territorial sovereignty will be called into question; that they will change under the pressure of future events is all but certain; but what they will change into is anybody's guess.
Reid, before becoming the UK equivalent of SecDef was "a former member of the Communist Party of Great Britain (of which he has said: 'I used to be a Communist. I used to believe in Santa Claus')" and his views may be colored by his background. But I have no doubt that Reid's remarks, whatever their actual merit, are the first stirrings of a debate which will eventually reshape the international environment of the 21st century. And the world is changing. Austin Bay links to a long article in the National Journal which talks about a new "strategic convergence" within NATO which basically asserts the alliance is gradually going to war as concretely expressed by its growing commitment to combat in Afghanistan. One of the implied objectives of NATO's Afghan commitment is to gain experience in a new kind of warfare for which most of its members are unprepared but a recent hearing of the Senate Committee for Foreign Relations on Islamic Extremism in Europe strongly suggests that for the Continent at least, the war will also have a significant domestic component.
It is an unwelcome irony that Europe, which emerged from the Cold War more united, peaceful and prosperous than at any other time in history, may be threatened by jihadist violence as much as any other part of the world outside Iraq. Europe, as home to the world's largest Muslim diaspora, is at the heart of the battle over Muslim identity. ... For example, according to a 2002 survey of Muslims in Great Britain, 41 percent of the respondents under thirty-five years of age described themselves as solely “Muslim,” rather than “British and Muslim,” which was one of the other choices on the questionnaire. ... Let me simply note that, without a doubt, European Muslims had ample discontents before the U.S. toppled the regime of Saddam Hussein. ...
Prospects for the containment of radicalism must be seen in the near term as limited. ... Not surprisingly, Britain’s Muslims are not particularly happy with how they are treated by the wider society. ... Two in three stated that anti-terrorism laws are applied unfairly against Muslims, nearly half would oppose an oath of allegiance to Britain ... When some of the British government’s top civil servants met after the Madrid bombings to discuss how to defeat al Qaeda domestically, the picture that confronted them was deeply unsettling. Muslims had three times the unemployment rate of the entire population -- only 48 percent of the Muslim population was working ...
The other experts testified more or less in the same vein: Europe was smack in the middle of the War on Terror and the danger was real. And if its undersized militaries were unsuited to fight Al Qaeda in Central Asia they were little better off at home. It is in this context that some of Reid's most disturbing remarks must be read.
Here at home, we in the UK have recognised the need to update our approach. In the face of the new terrorist threat, we have made appropriate legal changes in our domestic legislation. For instance, we have changed our domestic legislation relating to maximum period of detention before charge. We may disagree about the length of time that we should hold people but there is a general consensus that there was good reason to extend that period. We have also introduced a new offence of "Glorifying Terrorism"
The issues that Reid raised were all prefigured in one way or the other by the US experience from 2002 to the present. They find their echoes in the Plame Affair. Guantanamo Bay. The McCain Amendment. In Iraq. That these problems are now coming to the general attention of Europe suggests that the problems themselves are real. If so, there is no Last Helicopter out of the situation unless it can take us away from the 21st century.