No Comment, Six Questions — December 6, 2008, 9:40 am

Six Questions for Mary Ellen O’Connell on the Power of International Law

Mary Ellen O’Connell, a law professor at Notre Dame University, is a prominent voice in the legal community on international law and the law of war, and the author of a new book entitled The Power and Purpose of International Law. As the Bush administration exits under a cloud of controversy concerning its accountability for war crimes, I put six questions to Mary Ellen about her book, the legacy of the Bush presidency on the field of international law and the challenges facing President-elect Obama.

1. President-elect Obama has pledged to end the abuses associated with
Guantánamo immediately upon coming into office, but that will still leave the
question of what to do with the legacy of war crimes by the Bush
Administration. You have called the administration on grave breaches of the Geneva Conventions before–specifically relating to the ghost detainee policy and torture. How would you advise President Obama to deal with this legacy after he comes into office?

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Close Guantánamo and launch a full, credible investigation of possible violations of international law against detainees since 9/11. International law is probably more important for America today than at any other time in its history with the exception of its founding. The President needs to be able to demand that other nations respect the rules—on the economy, on the environment, on human rights, and on peace and security. He will hardly be able to do so if this country does not take credible action in the face of such a widely-known failure to comply with one of the clearest obligations in international law: the obligation to prosecute grave breaches of the 1949 Geneva Conventions.

Some have said that prosecuting Bush Administration officials is politically impossible. They fear that the Obama Administration would face a wave of opposition so strong that it would be prevented from functioning. I believe the President can fulfill our obligation under the Geneva Conventions in a deliberate, non-partisan fashion and thereby avoid the worst-case scenarios. Our initial obligation is to credibly investigate serious allegations. The President can organize a team of investigators to do this who would be above reproach. Retired U.S. Attorneys and military prosecutors with experience trying terrorists or war crimes, consummate professionals, avoiding headlines, and with a single-mindedly focused on the law can do the job.

2. In the German-speaking world of the twenties and thirties there was a strong divide between international law scholars like Kelsen and Lauterpacht, on one hand, who had a grand vision of the positive role that law could play in avoiding conflict among nations and upholding the rights of individuals, and Carl Schmitt, on the other, who adopted a hostile view towards international law, arguing that it was in the service of adversaries and showing how it could be twisted and distorted to serve the state’s ends. To what extent do you see the drama of this dialogue about international law being played out in the domestic international law debate of the last eight years? Is there a clear nexus between Schmittian thinking and the arguments that sustained the Bush Administration?

Schmitt’s ideas did indeed come to be reflected in the foreign and legal policy of the Bush administration. Leo Stauss’s dismissal of international law and his support for the strong-man leader came to the United States primarily through Hans Morgenthau. Morgenthau’s influence in U.S. foreign policy from the 1960s forward has been extraordinary. By then, the very highest U.S. officials were no longer speaking the language of international law and institutions but of projecting American power. U.S. legal thinkers, of course, took note, and, by the 1960s were also focused on the Civil Rights movement and the Women’s Movement. Those movements were primarily concerned with constitutional law, and constitutional law became the prestige topic in U.S. law schools—some top schools no longer even taught international law. The result was that by the 1990s, international law was increasingly being mischaracterized as weak, unimportant or even dangerous—nothing that should fetter the superior American state. And Bush officials were able to find in the Constitution support for a strong-man leader above the law in wartime.

Lauterpacht and Kelsen, by contrast, always held the law to be superior to the leader. For questions affecting affairs beyond the state that law had to be international law. And, of course, this is the view of the Constitution that the Founders held. They read Grotius and Vattel, who understood that law is superior to men. Lauterpacht and Kelsen shared that view. Little wonder that Schmitt rose to top legal jobs in the Third Reich; Kelsen was driven out.

3. You critique the Goldsmith and Posner book, The Limits of International Law, and indeed the title you give your work suggests it was intended as an answer to them. The
Goldsmith and Posner book can be collapsed to the proposition that
international law isn’t really “law,” it’s just a series of rules of mutual convenience among states that they often don’t treat it seriously and which, in any event, lack a basis for enforcement. They also argue that the subject of this law is
states, not individuals. Does it strike you as curious that international
humanitarian law has gone missing from the Goldsmith and Posner book – almost as if they don’t know what to do with it? And in view of the argument that it lacks any spine, isn’t it ironic to see Goldsmith arguing in a Washington Post op-ed that those associated with Bush Administration torture policy (a group
that prominently includes himself) should be given a free pass from criminal
investigation and prosecution?

It was quite telling to me that Jack Goldsmith could write a long, detailed memo in March 2004 on the Fourth Geneva Convention, enforceable by criminal penalties in the United States, but never mention these facts in a 2005 book purporting to be comprehensive on international law and its lack of enforcement. The Limits of International Law is so very useful to any lawyer trying to defend supremely erroneous advice on international law–after all, the book purports to demonstrate that international law is not really law. So how can errors matter?

Limits has sold extremely well, especially among political scientists. It repeats myths that Morgenthau and his students have put out for years and it demanded a response. The timing of the book underscored the demand. The Power and Purpose of International Law provides a response, especially on the level of theory. Perhaps my efforts and those of many colleagues are having their intended impact if Jack Goldsmith feels the need to argue against enforcing international law in an op-ed?

4. The idea that international law is impotent, that there is no effective
sanction for its violation, seems to be in the background when one reads the torture
memoranda. We see a very casual attitude taken towards the Geneva Conventions and the Convention Against Torture, for instance, as if they are not really law. Doesn’t this suggest that the neoconservative theory of international law as “no law at
all” is directly connected to detainee abuse in Abu Ghraib, Guantánamo and
elsewhere? The neocon theory saw no effective limitations in international law
and essentially unlimited presidential powers in wartime. The torture and
mistreatment of prisoners was effectively an opportunity to take these theories
for a test drive. Does this not suggest that the focus of accountability
should be on the lawyers who enabled the abuse?

I see contempt for international law on every page of the torture memos. There are serious errors of analysis throughout—some, perhaps, from ignorance, but there are many errors that even a lawyer who never studied international law should not make, such as interpreting treaty terms by looking at terms in unrelated United States statutes.

And yet the memos were ordered. Obviously, someone understood the widespread belief in and commitment to international law in this country. The decision to torture, disappear, and abuse detainees could not simply be enacted by top officials saying “take the gloves off.” Hundreds of pages of memos misconstruing international law had to be written first. The lawyers who wrote the torture memos must have been particularly frustrated in needing to make arguments about international law. But their poor results—their misconstruction of the law is directly related to the violations of human rights and humanitarian law that have been perpetrated since 9/11. The CIA, contractors, and military believed they needed clearance from international law obligations. The investigation of crimes, I suggest, should include the lawyers.

The clearest standards these lawyers have violated are standards of professional conduct. Regardless of their personal opinions about international law, the rules of professional responsibility require competent advice on the law. There is nothing of the kind in the torture memos.

5. The Legal Adviser in the State Department, John Bellinger, has advanced
a series of radical excuses for American shortcomings in connection with the
programmatic introduction of torture and disappearances. In arguments
presented to the Committee Against Torture, he argued that the Convention
Against Torture was inapplicable in wartime (which in the view of this administration is all the time) because the law of armed conflict was a
lex specialis that ruled the field. What do you think of the Bellinger argument? Might it have been contrived to deal with the criminal law exposure that Bellinger and others in the administration face?

Bellinger is wrong. The prohibition on torture is a non-derogable, absolute prohibition binding on the United States at all times. While there is a lex specialis applicable in armed conflict, fundamental human rights protections are not suspended when that law is triggered. And I should add the law of armed conflict is triggered by real armed conflict where intense fighting between organized armed groups is occurring—not phony wars like the “global war on terrorism.”

When Bellinger left the National Security Council for the State Department to take over from Will Taft, his first speeches attempted to do what the torture memos did—make complicated arguments on the law and weigh down the critics in the details. His arguments were not as plainly erroneous as the torture memos, but they were far from the best analysis. Bellinger took this approach on detainee issues but also respecting other international law issues faced by the United States—such as executions of persons in defiance of their rights under the Vienna Convention on Consular Relations and orders of the International Court of Justice. More recently, I think he has moved away from this strategy to one perhaps following Jack Goldsmith: Convince people you support the rule of law, distract them from your role in torture, disappearance, and abuse, then when the accounting comes hope the focus lands on others. Bellinger has come out in strong support for the Law of the Sea Convention and even the 1954 Hague Convention for the Protection of Cultural Heritage in the Event of Armed Conflict–he was writing op-eds on these topics just as the ACLU obtained the document produced at the Office of Legal Counsel dated August 4, 2004, saying that waterboarding is not torture. According to the ACLU, waterboarding was discussed at meetings of the National Security Council when Bellinger was present.

6. Beginning from the time of the Nicaragua harbor case, conservatives in
the United States have taken an intensely hostile, indeed resentful,
attitude towards the International Court of Justice, and Republican
administrations have pulled further and further away from a court which was arguably the result of American initiatives. Assuming that the Obama Administration wants to begin to move the nation back into compliance with its international law obligations and smooth over the ruptures surrounding the ICJ, what can you suggest as a first step?

America should recommit to ICJ enforcement of the Vienna Convention on Consular Relations. Secretary Rice pulled us out of the Protocol providing for that enforcement. All Americans should want this because it is the means of assuring that the U.S. embassy will be notified if we are arrested in a foreign country. Rice threw away America’s right to enforce the Convention in the ICJ, which is astounding since the United States was the first country to use the Protocol. We won a unanimous ICJ order to Iran to release our hostages in 1979. That order underpinned the successful campaign that eventually led to the safe homecoming of the hostages and the peaceful resolution of billions of dollars of claims.

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Bellinger fully supported leaving the Protocol because the United States has lost cases at the ICJ over our own treatment of foreigners arrested in this country. We deserved to lose those cases. We do a poor job of informing non-Americans of their right to contact their consul or embassy. We could easily add a line to the Miranda warnings: “If you are not a U.S. national, you may have the right to have your consul notified.” Rather than doing this or otherwise improving our compliance, we refuse to be answerable to the ICJ. Leaving the Protocol was characterized by the same hubris that tainted so many Bush Administration foreign policy decisions.

Elihu Root, Teddy Roosevelt’s Secretary of State, helped draft the statute of the International Court of Justice. He believed in courts—all courts—as the sensible way to resolve disputes. He was a pragmatist, as is our new president. I believe a return to the Protocol could be an important first step back to acceptance of the ICJ’s compulsory jurisdiction, which we rejected when we lost another case we deserved to lose in the 1980s, for mining the harbors of Nicaragua and other unlawful acts.

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