Force Above Law: The New International Disorder?

13 July 2002

The US has historically been one of the most resolute advocates of the Rule of Law. However, current trends indicate that it is moving dangerously towards completely shunning this approach, resulting in US reliance on Rule of Force as the principal means for solving global conflicts. While on the one hand the US disavows current obligations under international law and refuses to participate in new international legal mechanisms, it expects other countries to adhere to such laws and to US directives. Continued US attempts to increase its military domination combined with its withdrawal from international legal processes are eroding national and international security in an already unstable and unbalanced international environment.

Security in the Post-September 11th World

President Bush has used September 11th to define a new dichotomy dividing states-the states with the US and the states for terror-an overly simplistic dichotomy that had been missing since the dissolution of the USSR and the end of the Cold War. In the aftermath of September 11th, the US made an appeal to the international community to join in the fight against terrorism. On the surface, the anti-terrorism campaign initially offered a chance for many countries, including countries subsequently labeled by the Bush administration as part of an "axis of evil," to realign themselves to be on more friendly terms with the US.

As a result, many countries have changed their political priorities, diverting large amounts of resources and attention to the US-led war on terrorism. Furthermore, many countries in critical regions such as the Middle East, South Asia and North East Asia are following the US example, countering domestic and regional disputes with force and rejecting multilateral diplomacy and arms control. In fact, the war on terrorism has only added fuel to fire in escalating regional crises.

September 11th also reinvigorated concerns about the proliferation of weapons of mass destruction and their means of delivery. There are legitimate fears regarding terrorists acquiring or making nuclear, chemical, biological or radiological weapons. However, the US-led response to these fears has been to offer solutions that would counter rather than prevent proliferation.

New Nuclear Policy: First Strike

Serious concerns about US plans were raised this year when portions of the classified US Nuclear Posture Review (NPR) that was released to Congress in January 2002 leaked to the media in March. Despite treaty commitments to reduce its reliance on nuclear weapons, the NPR reaffirms the role of nuclear weapons in US national security policy. In the past, nuclear weapons have been viewed as a deterrent against the use of nuclear weapons. However, the NPR reveals that the US intends to integrate nuclear weapons into a full spectrum of war-fighting capabilities, including missile defenses. The NPR unveils that nuclear weapons are no longer weapons of last resort, but instruments that could be used in fighting wars. The NPR also raises the possible resumption by the US of full-scale nuclear testing and plans to develop and deploy new "earth-penetrating" nuclear weapons.

Furthermore, the NPR calls for the development of contingency plans to use nuclear weapons against seven states-Iran, Iraq, Libya, Syria, North Korea, Russia and China-constituting a disturbing threat in particular to the named states and in general to international peace and security. Contrary to long-standing US assurances not to use nuclear weapons against non-nuclear States, five of these named states are non-nuclear states.

The Bush administration announced in June that it will release a document outlining a strategy of striking first. The doctrine will be incorporated into the National Security Strategy that will be released in Fall 2002. President George W. Bush argues that the US needs such a strategy in order to counter "terrorists and tyrants," a phrase that encompasses both states and non-state actors, because Cold War policies of deterrence and containment do not fit the post-September 11th world. The argument also extends a justification for developing new low-yield, earth-penetrating nuclear weapons that could be used preemptively to destroy deeply buried targets and bunkers. While there remains an opportunity to address the prospect of terrorism from weapons of mass destruction (WMD) and legitimate concerns about WMD and missile proliferation, this opportunity is being rapidly squandered. When the US reserves to itself the right to strike first with nuclear weapons, it relinquishes the moral high ground and the right to tell other nations to give up their weapons of mass destruction.

Arms Control: Significant Nuclear Reductions or Maximum Nuclear Flexibility?

Presidents George W. Bush and Vladimir Putin signed the Strategic Offensive Reductions Treaty between the US and the Russia during a summit in Moscow on 23 May. The treaty calls for the reduction of strategic forces of each country's arsenal to 1,700 to 2,200 by 2012, the year in which the treaty expires. It also does not require the destruction of a single missile launcher or warhead and each side can carry out the reductions at its own pace and even reverse them to temporarily build up its forces. In other words, the treaty allows either side to worry more about protecting their own nuclear options than constraining the options of the other country. A senior US administration official stated, "What we have now agreed to do under the treaty is what we wanted to do anyway. That's our kind of treaty."

Under the terms of the treaty, either side can temporarily suspend reductions or even build up forces without violating the treaty. This will allow maximum flexibility to the US, which insists on continuing to rely on nuclear weapons in its national security policy. The US Nuclear Posture Review, released in January 2002, stated, "In the event that US relations with Russia significantly worsen in the future, the US may need to revise its nuclear force level and posture." The new treaty will allow the US to do so. Rather than completely destroying the strategic weapons, the US has repeatedly stated that it will shelve or stockpile the warheads.

Abdicating Law

The alternative to a rule-by-force policy is the Rule of Law. Since its founding, the US has historically sought to create a legal framework to foster national and international security. Under Article VI of the US constitution, "all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land." A treaty becomes US law when two-thirds of the US Senate give "advice and consent" to its ratification. Although treaties may not be perfect, they are critical to articulating and codifying global norms and standards. Among other things, treaties contribute to national and international security by establishing mechanisms to enforce articulated norms, measure progress, and promote accountability, transparency, and confidence building measures between countries.

Although US support for international law and institutions slowly began to decline as the 20th century progressed, since the Clinton administration, the US has been more hostile toward international law and international legal mechanisms. And the trend has only accelerated during the Bush administration. Under the Clinton administration, the US refused to sign the Treaty Banning Anti-Personnel Mines (Landmines Treaty); the Senate failed to ratify the Comprehensive Test Ban Treaty (CTBT); and the US attempted to obstruct completion of the Rome Statute to create an International Criminal Court (ICC), although Clinton did sign this Treaty at the final moment. Since President Bush took office, among other actions demonstrating its disdain for international law, the US has:

- withdrawn from the 1972 Anti-Ballistic Missile (ABM) treaty;

- resisted the idea of a standardized procedure for reporting on nuclear disarmament obligations under the Non-Proliferation Treaty (NPT) and, in fact, increased the role of nuclear weapons in US national security policy;

- sought to terminate the process to promote compliance with the Biological Weapons Convention (BWC);

- spurned proposals from Russia and China to ban weapons in Outer Space and Space-based weapons;

- withdrawn its signature from the International Criminal Court Treaty;

- withdrawn its support for the Kyoto Protocol on global warming, even though it played a key role in its creation.

Conclusions

The shift in US policy to rely on force first and consider itself above law is detrimental to its own security as well as to international insecurity. Unless this process is reversed and unless the US begins to cooperate with other countries to ensure a global Rule of Law above the Rule of Force, international disorder will gain ground

Carah Lynn Ong
Published by CommonDreams.org © Carah Lynn Ong

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