Missing the Point Twice: International Law as Empire’s Sunday Suit

15 Oct


            In a recent speech at the Harvard Law School, John Brennan, President Obama’s chief advisor on counterterrorism and homeland security, boldly declared: “I’ve developed a profound appreciation for the role that our values, especially the rule of law, play in keeping our country safe.”  The most notable feature of the remarks that followed was the legal rationalization put forth for targeting killing of civilian terrorist suspects distant from ‘the hot battlefield’ even if not engaged in activities that could be reasonably viewed as posing an imminent threat to security of the United States.


In effect, post-9/11 American ideas of self-defense incorporate by stealth the Bush Doctrine of preemptive war used to justify aggression against Iraq in 2003, which had seemed discredited in international until quietly revived by the Obama presidency. The entire world is treated as part of the operational battlefield in the so-called ‘long war,’ and civilians, such as the religious ideologue Anwar al-Awlaki, killed on September 30, 2011 in a remote region of Yemen as if he was a soldier at war. This purported legalization of drone attacks carried out in foreign countries represents a unilateral extension of international law, as well as establishes a precedent that would not be tolerated if claimed by any country hostile to the United States. Involved here is the de facto amendment of the right of self-defense in a manner inconsistent with both the understanding embedded in Articles 2(4) and 51 of the UN Charter and of contemporary international law as interpreted by a majority in the International Court of Justice in the Nicaragua case decided in 1986. The United States now sets the new rules that override the old rules, and then limits their availability to others by restrictions based on geopolitical criteria of ‘friend’ and ‘enemy.’


            All that Brennan offered in support of such an imperial claim was the assurance that the United States is careful in the execution of these attacks, seeking to minimize the risk of mistaken identity and taking steps to ensure that the attacks take place in situations where the risks of unintended ‘collateral damage’ are reduced to the minimum. The credibility of this reassurance is insulated from inquiry by secrecy, a total lack of transparency that is supposedly justified by the need to protect intelligence sources. There is also no independent post-attack independent inquiry as to whether the targeted individual might have captured rather than executed, whether there existed a sufficient threat of involvement in dangerous activities to warrant such at attack, whether the government of the country involved gave its consent voluntarily, and whether there is or should be accountability for errors. Such a procedure can only be understood as an effort to establish a system of imperial global governance in relation to the use of force.  If this constitutes the way American ‘values’ deploy ‘the rule of law’ it would seem to reflect the most cynical reliance on ‘law’ as propaganda, while at the same time discarding the proper role of law as a constraint on violence. It is also relevant that the unusual amount of attention given to the al-Awlaki execution results from his American citizenship, which implies the regressive understanding of law that there are no grounds for a serious American concern if the target is non-American regardless of the innocence of the person or the fact that he or she are being killed in their homeland and citizenship. Such a world we are making for ourselves and others.


            In March of 2011, in a spirited address to the American Society of International Law, Harold Koh, Legal Advisor to the Secretary of State, also spoke glowingly about the commitment of the United States during the Obama presidency of “living our values by respecting the role of law.” He went on to explain that this mean “following universal standards, not double standards.”

These legalist sentiments were deemed by Koh to be so central to his argument as to be printed in bold lettering for emphasis.


What should strike any reasonably objective person is the crude hypocrisy of an American government official rejecting double standards while simultaneously engaging in political gymnastics to avoid acknowledging the unlawfulness of Israel’s behavior: the United States stands practically alone in the world in refusing to condemn Israeli settlements in occupied Palestine, in denying Palestinian statehood at the UN, in endorsing the collective punishment inflicted on the civilian population of Gaza for more than four years; in repudiating the recommendations of the Goldstone Report. Indeed, U.S. foreign policy toward Israel is the most glaring and punitive instance of double standards with respect to international law that exists in the world today.  But it far from the only example. Other prominent instances exist in many crucial domains of global policy: as with the nuclear weapons states that maintain arsenals of weapons without accepting restrictions on their use and non-nuclear pariah states that under the geopolitically managed NPT regime are threatened with military attack for supposedly seeking such weapons; as with the identity of those political leaders and military commanders who are prosecuted for international crimes and those who enjoy a condition of de facto impunity; and as to states that could be invaded by reliance on the norm of ‘responsibility to protect’ and those against which such action is inconceivable however much the territorial population is confronted by dire threats to its wellbeing and survival.


I am less shocked by the behavior of the United States, which reflects its grand strategy, than by this insistence on stretching the meaning of the most fundamental legal rules and principles to satisfy foreign policy priorities.

For esteemed international law figures such as Harold Koh, formerly a distinguished human rights scholar and dean of the Yale Law School, to make such bold assertions about the post-9/11 law, validating drone warfare, without even bothering to acknowledge doubts as to the wisdom and acceptability of such a course is to embrace jurisprudential nihilism in two senses—first, by undermining the authority of international law by showing that it can always be extended unilaterally to serve the interests of the powerful, and operates otherwise to discipline weak states; and secondly, by creating a precedent that will not be honored as ‘law’ if invoked by others- witness the hysterical reaction to the shaky claim that Iran was plotting the assassination of the Saudi Arabian ambassador to the United States. What is sauce for the geopolitical goose seems to be poison for the pariah gander!


            There are respectable reasons to suggest that international law of war and peace that has evolved over the centuries to deal with conflict among states, and as such needs to be revised to take account of non-state actors and networks, as well as in response to the global horizoning of many interactions in the world of the 21st century. But there are no respectable reasons to contend that dominant states can exercise a military option wherever they choose, and then have the temerity to call this behavior ‘lawful.’


Michael Rosen, an ideological apologist for the executions of Osama Bin Laden and Al-Awlaki, writing in The American, the magazine published by the American Enterprise Institute (the right-wing think tank) put his support for drone military activity this way: “But in the civilized world..increasingly.. targeted by Islamist terror, we must continue to return fire by robustly targeting the terror masters.” At least such an assertion

does not pretend to provide an international law justification, although it does stretch the U.S. Congress’s 2001 Authorization of the Use of Military Force, designed to reach those involved in the 9/11 attacks, to validate the execution Al-Awlaki who has never been accused of having any relationship to 9/11. It also most unacceptably sets up this long repudiated moral contrast between ‘the civilized world’ and the rest that has so often in modern times been used to justify violence by the West against the non-West. I had hoped that the collapse of colonialism would have at least discouraged the use of such a tasteless rhetoric of comparison.


            There is a final point. Living in a region that is subject to drone attacks as in the tribal areas of Waziristan is terrifying for the population as a whole. This ill-defined vulnerability helps explain the severe hostility to the United States that exists among the Pakistani people and led to a unanimous resolution adopted on May 14, 2011 by the Pakistan parliament demanding that the executive branch uphold Pakistan’s sovereignty by disallowing any future drone strikes on its territory, and if they continue to cut off NATO supplies destined for the Afghanistan War. Supporters of the resolution have sought implementation through the courts, and a Lahore judge has ordered Pakistan foreign minister to submit detailed responses to issues raised. It is one thing to assess the reasonableness and proportionality of a targeted killing, including by reference to collateral damage by reference to the person(s) targeted, but such an appraisal fails to take any account of the more pervasive and inevitable collateral damage caused by producing intense insecurity on the part of an utterly defenseless civilian population as a whole.  As far as I have seen this latter dimension of state terror associated with these new modalities of surveillance, intelligence operations, and robotic militarism never considers the psychological harm being done to the people of the targeted country. This raises issues bearing on the right to life as a fundamental right of all persons under international human rights law.

14 Responses to “Missing the Point Twice: International Law as Empire’s Sunday Suit”

  1. Ray Joseph Cormier October 15, 2011 at 1:54 pm #

    If I was to offer a brief synopsis of your article, it is now the position of the US in the world: do as I say, don’t do as I do.

    I would like to find the way to petition the Nobel Committee to recall Obama’s Peace Prize. He is being Revealed as undeserving with the passage of Time.

    If the American people do not come together with one voice and reign in the excesses of American power in their name, they will become even more despised in the world than they are now.

    On another level, I see the Revelation of these US actions as evidence the Spirit of this letter is activated in the world and it is only a matter of Time.

    And I saw three unclean spirits like frogs come out of the mouth of the dragon, and out of the mouth of the beast, and out of the mouth of the false prophet.
    For they are the spirits of devils, working miracles, which go forth unto the kings of the earth (Pope, Presidents, Prime Ministers, CEOs, the Rich and others) and of the whole world, (the rest of us) to gather them to the battle of that great day of God Almighty.
    Behold, I come as a thief. Blessed is he that watches, and keeps his garments, lest he walk naked, and they see his shame.
    And he gathered them together into a place called in the Hebrew tongue Armageddon.
    Revelation 16

    Armageddon is derived from Har Megiddo which was located in the Roman Province of Palestine when the Revelation was given 2000 years ago, 600 years before Islam, the 3rd arm of religion to the God of Abraham came into being in this world.
    Today Har Megiddo/Armageddon is located in temporal Israel recreated from the Bible after an absence of 3000 years. These things we can see in this material as material facts and realities, so what is the Spirit of the God of Abraham still alive and doing these days?

    The fact all 3 religions to the God of Abraham – Judaism, Christianity and Islam – meet in Jerusalem Today where Christ was crucified, is a symbolic sign from God to all three religions to put up or shut up.

    Wherefore the Lord said, For as much as this people draw near me with their mouth, and with their lips do honour me, but have removed their heart far from me, and their fear toward me is taught by the precept of men:
    Isaiah 29:13

    You hypocrites, well did Isaiah prophesy of you, saying,
    This people draws nigh unto me with their mouth, and honours me with their lips; but their heart is far from me.
    But in vain they do worship me, teaching for doctrines the commandments of men.
    Matthew 15:7-9

    • Ray Joseph Cormier October 15, 2011 at 2:14 pm #

      I found the email addresses of the Nobel Committee and wrote them about recalling Obama’s Peace Prize

      General inquiries: postmaster@nobel.no
      The Library: library@nobel.no

      • Ray Joseph Cormier October 15, 2011 at 5:40 pm #

        From: Ray Cormier
        Sent: October-15-11 10:35:34 PM
        To: postmaster@nobel.no; library@nobel.no
        Subject: Peace Prize/War Prize
        Honourable Members of the Nobel Committee,

        Considering the speeches candidate Obama gave before the Global Financial Meltdown-Economic Pearl Harbour-Tsunami of September 2008 under the watch of his predecessor, I was happy when your August Committee awarded the new President the Nobel Peace Prize.

        I supposed at that Time, you awarded it to him knowing the mess he inherited would leave him holding the bag, and at a great disadvantage with the American people to start with, and you hoped awarding him such a prestigious award at the outset of his Presidency might ameliorate the disadvantage of inheriting a failed economy and in those circumstances, help keep him focused on the Prize of Peace.

        I am positive I am not the only resident of earth to see the difference between the words of Candidate Obama and the inexperienced new President Obama you awarded the Peace Prize to, and his actions since then. Since being given the Prize, his actions on the world stage show he resorts to military action 1st and not as a last resort. He is showing by his actions to be undeserving of The Nobel Peace Prize.

        I may not be the 1st person to write to you about this, but I see justifiable reasons to recall the Peace Prize awarded to President Obama prematurely in wishful thinking. He is showing himself by his policies to be unworthy of it. If you can’t take it back, at least make a Public Statement saying in retrospect, The Committee made a hasty decision.

        What moved me Today to write to you was reading the latest article in the Blog of Professor Richard Falk, International Law Scholar titled ‘
        Missing the Point Twice: International Law as Empire’s Sunday Suit


        Ray Joseph Cormier

        GENERAL/PRESIDENT DWIGHT D. EISENHOWER – The Last Real Commander-In-Chief


  2. david HICKS October 15, 2011 at 3:55 pm #

    Thank you Richard Falk for such a clear analysis of international law as practised by the US in the world today . Your statement, ” Indeed, U.S. foreign policy toward Israel is the most glaring and punitive instance of double standards with respect to international law that exists in the world today ,” says it all. It seems to me that as long as the US so uncritically supports every illegal & inhumane behaviour of Israel, then the US is doomed to continue to behave more & more as does Israel. An extra judicial killing is an extra judicial killing whether committed by a hi-tec US drone or a lower tec Israeli mossad operative.

  3. kester2 October 15, 2011 at 7:48 pm #

    Thank you for this post which is (slowly) expanding my understanding of the issues around the possibilities of arraigning US drone crews in an International Criminal Court. Reading Profesor Alston’s A.HRC.14.24.Add6 it appears that human rights law may be more applicable than the measures under IHL or under the UN Charter articles (that have more quasi-legal wiggle room?) I see this needs to be the objective…but the attempt to indict the CIA legal adviser for North Waziristan drone strikes under Pakistani law seems to have disappeared into the bureaucratic maw of that country’s legal system (probably with considerable assistance from the US).

    It would seem that raising the status and powers of the IHRC would be a key to instituting a more robust application of (International) Human Rights Laws, that are presently not universal—and extending the access of the Council to judicial procedures. I’m wondering if the hypocrisy and double standards practiced by the US administrations, as pointed out in your post here, are propelling a desire among the General Assembly nations (the free ones) to act to see this happen.

    Christopher Hoare

    • Richard Falk October 16, 2011 at 7:13 pm #

      Thanks for this thoughtful comment. I do not see much evidence of a revolt on the part of the many subject to double standards against the very few that decide on who should obey and who can violate.

  4. Richard Fairbanks October 15, 2011 at 8:06 pm #

    Thank you, Richard!

  5. deepaktripathi October 16, 2011 at 11:04 am #

    Dear Richard,

    The Obama administration has a more nasty side than its predecessor. Under George W. Bush Muslims were abducted from beyond U.S. jurisdiction, tortured and denied habeas corpus. Under Barack Obama (what an irony!) Muslims are being killed by Drones and deprived of the right to life.

    Apparently, the Guantanamo Bay prison camp has been too much of a headache, so why not just eliminate them.

    You have brought this truth out and I thank you most sincerely.

  6. Glenn Morris October 16, 2011 at 11:04 am #

    Thank you, Richard, for this very insightful commentary. We will be holding a forum at the University of Colorado at Denver on November 7th, about the legal and philosophical debates concerning the killing of bin Laden and al-Awlaki. Your commentary will provide an important set of analytical points for discussion. I thank you for your wise contributions to this timely and essential debate.

    • Richard Falk October 16, 2011 at 5:18 pm #

      Thanks Glenn for these supportive words, which are much appreciated. I wish that I could be there to listen to the debate. I am
      living in Montreal until the end of 2011. Warmly always, Richard

  7. monalisa October 17, 2011 at 1:06 am #

    Dear Richard,
    thank you for your very insightful essay.

    Unfortunately I see that these “double standards” used by US government aren’t put on trial by other countries who could do that officially provided several countries would band together .

    I think that this will maybe going on until another state (or states) will say “halt” to it.
    But as Hilary Clinton said that the USA is being in its “Pacific Century” I doubt that the US government will come to its sense at the present; quite contrary: it seems that they got some sort of hypocrisy together with big lies and self-righteousness coupled with complacency. While the wellbeing of its people doesn’t count at all.

    Moreover, the US government uses the strategy of Nazi-Germany: more warfare produced with more wars in order
    a) to give at least a little bit of jobs to the population (in this respect see the Word War II why USA stepped in and how this had a direct effect on the economy of the USA);
    b) and at the same time having at its side the mainstream media with its disinformation why these wars are fought.
    c) and maybe to “cover” its debts (it looks alike).

    People aren’t onto the streets mainly because of violation of laws and they don’t request a withdrawal of the double standards USA is using in their main agenda(it they have it at all).

    PS: concerning big lies: I would like to remind on the outcome of “Gladio” where it has been found out that CIA together with NATO in secrecy were behind many terrorist attacs/blasts by which several hundreds of people died in Italy (and most probalby in other countries in Europe too) and for which had been the Communists made responsible officially at its time. It took several decades until this was found out and dealt with in court (Italy: has up til now a system where the jurisprudence is really independet of the state).


  8. monalisa October 17, 2011 at 3:54 am #

    Dear Richard,
    I would like to add what seems to me the new doctrine used by USA after the Cold War ended:

    Please the the “Erlking” by Goethe:

    “…and if you aren’t willig I will use force..”


  9. JOSÉ A.ESTEVEZ October 18, 2011 at 1:48 am #

    Very good!


  1. Missing the Point Twice: International Law as Empire’s Sunday Suit | This Blog Harms - November 1, 2011

    […] Nations special Rapporteur on Palestinian human rights. This article was first published on his personal blog.   Comments (0) | […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: