By John Yoo
Russia’s annexation of the Crimean peninsula and its continuing military pressure on Ukraine demonstrates that the United Nations-centered system of international law has failed. The pressing question is not whether Russia has violated norms against aggression — it has — but how the United States and its allies should respond in a way that will strengthen the international system.
It should be clear that Russia has violated the UN Charter’s restrictions on the use of force. It has resorted to “the use of force against the territorial integrity” and “political independence” of Ukraine in violation of Article 2(4) of the Charter’s founding principles. Russia has trampled on the fundamental norm that the United States and its allies have built since the end of World War II: that nations cannot use force to change borders unilaterally.
Like the League of Nations in the interwar period, the current system of collective security has failed to maintain international peace and security in the face of great power politics. According to widely-shared understandings of the UN Charter, nations can use force only in their self-defense or when authorized by the Security Council. Great powers with permanent vetoes on the Security Council (the United States, United Kingdom, France, Russia, and China) can always block formal efforts to respond to their own uses of force. Hence, the United Nations remains as powerless now as when Vladimir Putin ordered the 2008 invasion of Georgia.
Perevalne, Ukraine – March 4, 2014: Russian soldier guarding an Ukrainian military base near Simferopol city. The Russian military forces invaded Ukrainian Crimea peninsula on February 28, 2014. © AndreyKrav via iStockphoto
The United Nations and its rules have not reduced the level of conflict between the great powers. That doesn’t mean there has not been a steep drop in conflict, despite Russia’s invasion of Ukraine. From 1945 to the present, deaths due to great power wars have fallen to a level never seen under the modern nation-state system. Collective security, however, is not the agent of this “Long Peace,” as diplomatic historian John Lewis Gaddis has called it. Rather, the deterrent of nuclear weapons and stable superpower competition reduced conflict during the Cold War. Since the fall of the Soviet Union, the United States has continued to supply the global public goods of security and free trade on its own. Democratic nations’ commitment to maintaining that liberal international order, not the collective security of the UN Charter, has kept peace among the great powers.
As someone who worked in the Bush administration during the 2003 Iraq War, I am struck by today’s absence of criticism for Russia’s violations of international law and its effective neutering of the United Nations. About a decade ago, criticism of the United States reached unprecedented heights for its failure to win a second Security Council resolution authorizing the use of force. The United States and its allies claimed that it already had authority from Iraq’s refusals to obey its obligations at the end of the 1991 Gulf War and its continuing threat to regional peace. Some of the United States’ closest European allies, such as France and Germany, violently disagreed — although these nations seem to urge compromise today with Russia. Even though the United States went to war without Security Council authorization, it sought to build a legal case in support.
UN rules only constrain democracies that value the rule of law, while autocracies seem little troubled by legal niceties. Paralysis continues to afflict the democratic response to the invasion of Ukraine. The United States responded to the invasion of Ukraine and annexation of Crimea with the symbolic measures of sanctioning a few members of Vladimir Putin’s inner circle, kicking Moscow out of the G-8, and halting NATO-US military cooperation. Russian officials mocked the United States and raised the price of natural gas sold to Ukraine, an implicit warning to other European nations that depend on Russian natural gas. The Russian and US stock markets sighed with relief that no serious economic disruptions would follow.
Now Russian intelligence agencies are apparently fomenting unrest in eastern Ukraine and Russian troops have massed on the border. It should be clear that Putin sees Russia’s relationship with the Western democracies as one of competition, not cooperation. Putin has used the goal of restoring Russia’s great power status to win popularity at home. He has never ridden so high in domestic opinion polls as now. One response, in keeping with international law, should be to remove Russia from a position of superpower equality, which would only recognize Russia’s steep decline in military capability, its shrinking population, and its crumbling economy (which now relies on commodity prices for growth).
The United States could take the first step by terminating treaties with Russia that treat the former superpower as a current one. It can send a clear signal by withdrawing from the New START treaty, which placed both the United States and Russian nuclear arsenals under the same limits. There is no reason to impose the same ceiling of 1,550 nuclear warheads on Russia, which can no longer afford to project power beyond its region, and the United States, which has a world-wide network of alliances and broader responsibilities to ensure international stability.
Next, the United States could restore the anti-ballistic missile defense systems in Eastern Europe. Concerned about Iran’s push for ballistic missiles and nuclear weapons, the Bush administration had begun the process for deploying advanced ABM systems in Poland and the Czech Republic. As part of its effort to reset relations with Russia, the Obama administration canceled the program without any reciprocal benefits from Moscow or Iran. Re-deploying the missile defense systems would provide an important signal of American support for its NATO allies, especially those on the front lines with Russia, and raise the costs on Russia if it seeks to keep pace.
Another point where the White House should downgrade Russia’s status is in Syria. After threatening to bomb the Assad regime for using chemical weapons on the rebels, the United States leapt for a Russian to jointly oversee the destruction of Syria’s chemical arsenal. Bashar Assad has taken advantage of the withdrawal of American threats to seize the momentum in the civil war, backed up by Russian and Iranian support. The United States should not consider Russia an equal and joint partner on any matter, but certainly not on whether to allow the Assad regime and Iran to continue to destabilize the Middle East.
President Obama might even undertake a longer-lasting and more effective blow against Russia’s claims to great power status: ejecting Russia from the United Nations Security Council. Along with China, Russia has used its veto to act as the defense attorney for oppressive regimes throughout the world. Of course, the United States cannot amend the UN Charter to remove Russia from the Security Council. But it can develop an alternative to the Security Council, which has become an obstacle to the prevention of harms to international security and global human welfare. The United States could establish a new Concert of Democracies to take up the responsibility for international peace, which would pointedly exclude autocracies like Russia and China. Approval by such a Concert, made up of the world’s democracies, would convey greater legitimacy for military force and would signal that nation’s that resort to aggression to seize territory and keep their populations oppressed will not have a voice in the world’s councils.
John Yoo is Emanuel Heller Professor of Law at the University of California, Berkeley and a Visiting Scholar at the American Enterprise Institute. He is the author of Point of Attack: Preventive War, International Law, and Global Welfare (Oxford University Press, 2014), and co-author (with Julian Ku) of Taming Globalization: International Law, the U.S. Constitution, and the New World Order (Oxford University Press, 2012).
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David P. Forsythe is the Editor in Chief of the Encyclopedia of Human Rights which was the winner of the 2010 Dartmouth Medal. The five-volume encyclopedia offers comprehensive coverage of all aspects of human rights theory, practice, law, and history. Focusing primarily on developments since 1945, it offers an unrivaled reference source for students and researchers. In the original post below Forsythe looks at how we are handling our own human rights fumbles.
The United States was founded as a city on a hill, a beacon of freedom to all. So said both Ronald Reagan, the 40th president, and John Winthrop, the first governor of Massachusetts. Reagan plagiarized Winthrop to good effect.
Many Americans have shared this vision of America as a special nation, not at all ordinary. It remains a mystery exactly how the Puritan vision of America as a divinely inspired experiment for global freedom endured over increasingly secular time. There have always been those who translated the vision into isolationism, to lead by example at home. And there have always been realists like Henry Kissinger who did not buy into the vision at all but who preferred traditional balance of power politics to manage nasty world affairs. Not for them any moral crusade to rid the world of evil—whether of the communist or terrorist version.
The American penchant for at least the rhetoric of freedom and democracy morphed into the modern human rights movement after World War II under the leadership of Franklin and Eleanor Roosevelt, and Harry Truman. During the Cold War U.S. alignment with brutal authoritarians like Mobutu in Zaire, or the overthrow of even elected governments, as in Chile in 1973, or the supervision of torture in Latin America never destroyed the dream of America as moral beacon. In public we accepted the Geneva Conventions and the UN Convention Against Torture. In the shadows we played the game about as tough as anyone else.
9/11 accentuated this duality, perhaps schizophrenia. George W. Bush said al-Qaeda hated us for who we were, our personal freedoms in thought, including religious thought, and our gender-blind democracy. They hated us because we rejected their deferential and patriarchal theocracy. But in secret we engaged in forced disappearances, torture, cruelties arguably just below that level of abuse, denial of reasonable dues process in places like Guantánamo, Abu Ghraib, Bagram Air Force Base, and military brigs in South Carolina. In defense of our moral greatness we engaged in policies that undercut that greatness. As Winston Churchill paradoxically noted in World War II, truth was so important it had to be defen
Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below, he examines our nation’s concepts of vengeance and justice in light of alleged 9/11 mastermind Khalid Sheikh Mohammed’s forthcoming trial in New York City. See Lim’s previous OUPblogs here.
There are four reasons which have been supplied to suggest that Khalid Sheikh Mohammed (KSM) does not deserve a civilian trial in New York:
1. This is what KSM wants – a show trial, and he should not get what he desires.
2. The trial will increase the risks of a terrorist attack in New York.
3. Classified information will be released in a civilian court trial, to the benefit of potential future terrorists.
4. The injury KSM has inflicted is a war crime, and not a domestic criminal matter.
1-3 are unverifiable predictions, sub-points to the main point, 4, which is the motive force behind the considerable agitation behind Attorney General, Eric Holder’s decision. Those who oppose a civilian trial for KSM want vengeance more than they want justice. This is exactly what Michael Goodwin has argued:
“Either try the detainees in military courts on secure bases or, best of all, give them death now. Mohammed and some others already acknowledged guilt and said they were ready to die.
I say we take yes for an answer.”
Well, there we have it. Goodwin wants vengeance primarily, and justice only incidentally. Now, vengeance and justice are not unrelated. Vengeance presumes the existence of guilt, so the pursuit of vengeance can lead to justice. Indeed, in an anarchic, godless world of all against all, vengeance is the closest thing there is to justice. To speak of justice would be a categorical mistake because without the apparatus of sovereignty and law, it is a standard that stands on stilts. We say “Justice under the Law” because without law, justice is a meaningless concept.
Goodwin and others like Mayor Rudy Giuliani who want to deny KSM a civilian trial believe, though they have not fully articulated their reasons, that the international milieu exists as a state of nature in which there is no universal law and no universally accepted sovereign law-giver, and therefore, the pursuit of justice is folly and the pursuit of vengeance necessary. If there is neither legality nor illegality, then there is only strength and weakness. Vengeance will have to do. This is why Rudy Giuliani insists on the frame that we are a nation at war, that we are dealing with terrorists or “enemy combatants” and not what John Yoo called “garden-variety criminals.”
To be sure, in a government of laws such as in a liberal democracy, justice takes on higher attributes that vengeance does not (and cannot). While justice is about law; vengeance is about necessity because it privileges immediate judgment over the process that would deliver such a judgment. While vengeance gives specific solace to those who were injured, justice assures all citizens that the system in which they conduct themselves works, – i.e., while vengeance is pointed, justice is blind, and while vengeance is preponderant, justice is proportionate.
Well and good. But as we consider whether or not KSM should have been granted a civilian trial, we need to determine the context in which we make this judgment: is terrorism a domestic criminal matter or an act of war? If the context is the former, then the Constitution takes precedence and it makes sense to speak of justice and that is what KSM deserves. If it is the latter, then because there is neither universal law nor a sovereign law-giver in the international milieu, KSM will have to suffer our vengeance because justice is not an alternative.
We have not settled on an answer to this question of whether or not terrorism is a criminal or a war crime because our historical definition of war has not caught up with its modern incarnation in which deterritorialized non-state actors perpetrate acts of violence. Our discussion over what KSM deserves is a footnote to this larger debate.
John Ehrenberg and J. Patrice McSherry are Professors of Political Science at Long Island University, Brooklyn Campus. Jose Ramon Sanchez is Associate Professor of Political Science at Long Island University. Caroleen Marji Sayej is Assistant Professor of Government and International Relations at Connecticut College. Together they wrote The Iraq Papers, which offers a compelling documentary narrative and interpretation of this momentous conflict. In the post below we learn about last Friday’s Department of Justice report.
On February 20, 2010, two Bush administration lawyers, former Assistant Attorney General Jay Bybee and his deputy John Yoo, were cleared of professional misconduct charges by the Justice Department. As senior advisors in the Office of Legal Counsel–the executive office that provides authoritative legal advice to the president and the executive branch–they wrote legal opinions later known as “the torture memos” in the early years of the Bush administration. The opinions essentially redefined and authorized torture through contorted readings of the Convention Against Torture, domestic anti-torture statutes, and the Geneva Conventions. Yoo wrote in one 2003 memo to the Pentagon: “…as long as the interrogators do not intend to murder the detainee, they will not have run afoul of section 113(a)(l)…the intent to torture appears to be the most relevant…the interrogator would have to intend to cause other severe physical pain or suffering or to cause prolonged mental harm. Absent such intent, the interrogator would not have committed assault with intent to torture…Section 2340 makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the pain or suffering must be ‘severe.’ The statute does not, however, define the term ‘severe.’”
Yoo and Bybee also argued that the president’s powers were virtually unlimited in a time of war and that Congress, the courts, or established law could not check or balance him—even if he decided to use torture. Indeed, when a law professor asked John Yoo whether the president could legally “crush the testicles of a person’s child,” Yoo responded that no treaty forbid it and that it depended on “why the President thinks he needs to do that.” Even though ethics investigators in the Justice Department’s Office of Professional Responsibility had called for disciplinary action against Bybee and Yoo—including possible disbarment–the Deputy Attorney General rejected their recommendations.
In 2001 and 2002 the Vice President’s Office and the CIA were pushing for legal opinions that would protect agents from culpability for methods such as near-suffocation and drowning of detainees, putting them in painful stress positions, subjecting them to weeks of sleep deprivation, slamming them against walls, and shutting them in claustrophobic boxes. Consider the cold, clinical language of this December 2004 CIA fax to the Office of Legal Counsel, titled “Background Paper on CIA’s Combined Use of Interrogation Techniques”: “Current OMS [the CIA’s Office of Medical Services] guidance on the duration of cramped confinement limits conf