Legitimacy, Effectiveness & Multilateral Action
As to this:
The US will be a dartboard regardless of what it does - and Lawfare vs it will continue no matter what administration is in office. I'd expect that the US would still be a dartboard even if it retracted in its Worldview to an Americas-centric, Two ocean littorals military force projecton.It would be fair to say that the Bush Administration's exploits with US law (Guantanamo and the Military tribunals, "enemy combatants") have not been met with glee from the international community and the US certainly has a legitimacy problem now, which, until addressed will continue to have a negative impact on GWOT and future Western-led operations.
To use the example of the upcoming KSM trial, however fair that trial might be, it will still be viewed by some as a "show trial" simply because it was an "American court" (id est: the AQ oral history will record "the Americans tried and executed the martyr, KSM")
Other nations elect to co-operate with the US because of their own enlightened self-interests. The US-UK co-operation against transnational violent non-state actors has occured despite a basic difference in how TVNSAs should be handled - the UK solely via the Rule of Law criminal process; the US under both the Rule of Law and Laws of War.
The question of "whether or not coalitions" is a good question for the future. With the advent of the Bush I New World Order, coalitions became the default. In truth, coalitions are not going to be effective unless all parties are on the same page. An example where they are not is Astan.
The Sierra Leone Special Court has managed to convict 3 RUF commanders, three former members of the Armed Forces Revolutionary Council (AFRC) and two members of the Civil Defence Forces (CDF), Sierra Leone Rebels Guilty of Crimes against Humanity; and is working on Chuckie Taylor Sr, who is starting to testify.
One wonders whether the millions[*] spent on these few trials could have been better spent on a long-term improvement in the local justice system in SL, which if functioning would be capable of dealing with domestic war criminals. But, of course, international justice organizations get the bucks; while the natives have to get by with whatever happens to drop off the cart (or perhaps off the horse would be a better metaphor).
Chuckie Taylor Jr bit the dust more than a year ago in our Federal District Court, as posted here, Charles "Chuckie" Taylor Jr convicted in Miami. He was sentenced under the US Anti-Torture Act to 97 years in prison (in effect a life sentence without parole).
Finally, this may be true:
but I can't really think of any major multilateral actions that stand out.If the events of the last ten years have shown us anything it is that multilateral action certainly achieves much more than unilateral action.
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[*] The Special Court costs $25 million per year - more than you might want to know about the Special Court for Sierra Leone. What would $150 million (approx funding for 2004-2009) have done for the local justice systems in SL and Liberia ?
Much more on its Big Brother, The International Criminal Court.
See also, US Opposition to the International Criminal Court for archived articles.
All of the foregoing footnote materials are from the Global Policy Forum, which favors the ICC.
Why the US People will not accept the ICJ, ICC and for that matter I Law, in the same way as some other nations do, is laid out by Paul Kahn (pro-ICC) in his article, Why the United States Is So Opposed (December 2003), linked from the GPF US Opposition page. Kahn gets this part right:
Since I Law lays no claim to being derived from the People of the World (it exists as a creation of nation-states, with its individual humanitarian rights being granted by those states), the basis of I Law is contrary to US political (i.e., constitutional) theory - The American Civic Religion.The American National Myth
The behavior of the popular sovereign is what Americans mean by the rule of law: the rule of law is rule by the popular sovereign. This union of the rule of law and popular sovereignty is the great American political achievement. Of course, all of this is true not as a matter of fact, but as a matter of political faith. It is the American civic religion or our national myth. Belief in the popular sovereign as a single, transhistorical subject is at the core of the American democratic project. That project is not about assessing the will of a contemporary majority, but about maintaining the faith in a single, self-governing, plural subject: the People.
Thus, Kahn pegs it - what Americans mean by Rule of Law, with these passages:
I might add that the US, because it does insist that all government and law must derive from the People, is 180 degrees in separation from the UBL-Zawahiri view that all government and law derives from God as expressed in the Koran. While I personally do not believe in "clash of civilizations" arguments, the US Historical Myth (as Kahn calls it) is totally adverse to the AQ Historical Myth (as I will call it).What is the Rule of Law?
The character of the controversy over the Court is particularly difficult to understand because the central term of the debate -- the rule of law -- is itself deeply contested. American political culture does not accept the cosmopolitan view of an opposition between law and politics, with law cast as the expression of reason and politics as self-interest. In the American constitutional frame, popular sovereignty and the rule of law are a single phenomenon constitutive of the national political identity. The rule of law, which begins and ends in American life with the Constitution, is the self-expression of the popular sovereign. The Constitution is the source of all law-making power, and every assertion of a legal rule can be tested against the Constitution. No question more quickly or easily comes forward in our political culture than "Is it constitutional?"
Americans believe they created themselves as a "nation under law." That law is not a set of moral constraints imposed on the political process from outside, whether from natural law, jus cogens, or customary international law. Rather, the law expresses the substantive decisions of a self-governing community. The American Constitution expresses the will of "we the People." The rule of law is binding on the American political community not because it is reasonable or morally correct. It is binding because it arises out of the constitutive act of self-creation by that community. Thus, the rule of law is not a moral norm; rather, it is an existential condition signifying the continuing existence of the popular sovereign.
No one should underestimate the claim that the American Constitution makes upon the American citizen: it defines him as a political being; it is the object of his patriotism and the subject of a profound reverence. Despite the charges of rampant consumerism in modern America, the political culture maintains a cult of sacrifice - amply demonstrated in the post 9/11 events. The Constitution is at the very heart of this cult: in its name, Americans, for 200 years, have willingly taken up the burden of killing and being killed.
Of course, this does not mean that Americans are indifferent to the moral content of their law. They want their law to be reasonable and morally correct, but that means only that they want the community to bind itself by laws that satisfy these standards. They want their law to be morally satisfying in the same way that a parent wants his or her child to be morally good: we want them to be good because we love them; we do not love them because they are good. It is the same with the community that is the United States: citizens have a deep bond to the popular sovereign; because of that, they care deeply about how it behaves. They will not easily abandon this bond, even when they judge that behavior harshly.
Regards
Mike
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