So in fact my triumphant return was somewhat less of both than I imagined it would be (it was not particularly triumphant and the rumours of a return were greatly exaggerated) that being said I think I'll make a conscious effort to post a bit more on both of my homes. Anyway, what I think I'll try to do now is just to post the occasional little tidbit and thought, in the hope that I can once again garner some readers. I was moved to post by an interesting article today, by Frederic Megret. The article was written in 2002 and is entitled 'War? Legal Semantics and the Move to Violence'. The article is a somewhat prescient account of how Megret thought the use of the term 'war' would affect the US global strategy.
Megret's starting contention is that although the term 'war' may not be used in its technical legal sense it nonetheless has implications:
This starting point is a useful one, insofar as it manages to strike a good position between ignoring the legal implications altogether and making taking a legally imperialistic view, whereby particularly actions are saturated with 'legality'. Megret's substantive argument begins with the de rigeur reference to Schmitt's 'Concept of the Political'. Thus, in the aftermath of the 9/11 attack there was a traumatic gap owing to their lack of an explicit 'author' (p.6); this gap was fulfilled by the typical act of 'enemy positing'; which is - for Schmitt - the ultimate function of the sovereign is to designate the friend enemy distinction (which leads to war, which leads to the exception). So the response to the 9/11 attacks internally is a reassertion of sovereign power (and the political order), Megret's inquiry is how this will be manifested externally.
The first, vitally important, point to note here is that Schmitt typically talked about his enemy as the 'public enemy' (Concept of the Political, page 28) viz. the state, but of course the response to terrorism is directed against terrorist 'networks' not states, states are only an incidental target here (or so the reasoning goes). These Schmittian presuppositions are mirrored in international law concerning self-defence, the central thrust of his article is how this dynamic plays out.
It is worth briefly noting here some of the basic principles of self-defence in international law. Essentially, self-defence is activiated when one state makes an armed attacked upon another state; the reponse to this armed attack must be both necessary and proportionate. Whilst we are all willing to accept that there has been an armed attacked, the problem of necessity and proportionality causes a problem. Whilst this clearly includes force used to repel armed attacks, responses to such attacks - might often look like 'illegal' armed reprisals. In response to this there are two routes:
This problem of imputing the behaviour of non-state actors, to states becomes crucial in the 'war on terror'. There are a number of ways in which responsibility can be imputed in international law, I don't intend to go into them here, but we can say a few things. Firstly, harbouring people explicitly isn't a way of incurring international responsibility, it's a breach of a direct obligation under the Friendly Relations Declaration, but it doesn't mean their conduct becomes your own. Secondly, 'control' and 'endorsement' are modes of imputing responsibility, but there have been few instances of 'terrorist supporting' regimes having active control (particularly over Al-Qaeda) or overtly endorsing such attacks. Finally, supplying terrorists whilst again a direct breach of international obligations it only imputes responsibility if there is direct control (something the US has often used to its advantage).
In order to actualise its 'war' policy, the US has been forced to argue that harbouring, supplying or even being lax on terrorists is sufficient to incur responsibility on the part of a state; as Megret notes:
Megret's starting contention is that although the term 'war' may not be used in its technical legal sense it nonetheless has implications:
If one appreciates the power that is in words, the fact is that, for all intents and purposes, ‘war’ as a word is likely to influence legal debate on the use of force – and statesmen know this better than any. In view of the previous care taken not to use the ‘W’ word, one cannot help thinking that there is more than simply a quantitative difference between the loosely and variously labelled skirmishes of the past, and the embracing of a word that belongs more to history books than to legal ones.
(p.4)
This starting point is a useful one, insofar as it manages to strike a good position between ignoring the legal implications altogether and making taking a legally imperialistic view, whereby particularly actions are saturated with 'legality'. Megret's substantive argument begins with the de rigeur reference to Schmitt's 'Concept of the Political'. Thus, in the aftermath of the 9/11 attack there was a traumatic gap owing to their lack of an explicit 'author' (p.6); this gap was fulfilled by the typical act of 'enemy positing'; which is - for Schmitt - the ultimate function of the sovereign is to designate the friend enemy distinction (which leads to war, which leads to the exception). So the response to the 9/11 attacks internally is a reassertion of sovereign power (and the political order), Megret's inquiry is how this will be manifested externally.
The first, vitally important, point to note here is that Schmitt typically talked about his enemy as the 'public enemy' (Concept of the Political, page 28) viz. the state, but of course the response to terrorism is directed against terrorist 'networks' not states, states are only an incidental target here (or so the reasoning goes). These Schmittian presuppositions are mirrored in international law concerning self-defence, the central thrust of his article is how this dynamic plays out.
It is worth briefly noting here some of the basic principles of self-defence in international law. Essentially, self-defence is activiated when one state makes an armed attacked upon another state; the reponse to this armed attack must be both necessary and proportionate. Whilst we are all willing to accept that there has been an armed attacked, the problem of necessity and proportionality causes a problem. Whilst this clearly includes force used to repel armed attacks, responses to such attacks - might often look like 'illegal' armed reprisals. In response to this there are two routes:
- Firstly, one can argue that self-defence includes the use of force to pre-empt an armed attack. Whilst it is clear that self-defence has always included force used against an imminent threat, this argument has to be much broader. It is not usually possible to know if a threat is imminent or not (since it is carried out by unpredictable terrorist networks), what must therefore be assumed is that, whilst terrorists exist, there is always an 'imminent' threat, and so the use of force is always on the agenda.
- Secondly (and linked to the above point) one can characterise the 'war' on terror as continuous, one which began with the earlier terrorist attacks and continues to this day. Again the result of this is that any 'self-defence' can be continuously exercised.
This problem of imputing the behaviour of non-state actors, to states becomes crucial in the 'war on terror'. There are a number of ways in which responsibility can be imputed in international law, I don't intend to go into them here, but we can say a few things. Firstly, harbouring people explicitly isn't a way of incurring international responsibility, it's a breach of a direct obligation under the Friendly Relations Declaration, but it doesn't mean their conduct becomes your own. Secondly, 'control' and 'endorsement' are modes of imputing responsibility, but there have been few instances of 'terrorist supporting' regimes having active control (particularly over Al-Qaeda) or overtly endorsing such attacks. Finally, supplying terrorists whilst again a direct breach of international obligations it only imputes responsibility if there is direct control (something the US has often used to its advantage).
In order to actualise its 'war' policy, the US has been forced to argue that harbouring, supplying or even being lax on terrorists is sufficient to incur responsibility on the part of a state; as Megret notes:
But if a right to self-defence were exercisable on the basis of half-disclosed evidence against any country that had at one time or other been lax on ‘terrorism’ (assuming, of course, that one could agree on a definition of terrorism), it is not difficult to see how one might be confronted with a war that is not only infinite in time, but also risks being infinite in space, extending potentially to all corners of the earth.What Megret therefore predicted was that the language of 'war' means that any 'war' on terror necessarily implies violence unlimited by time or space. To return to the Schmittian theme the exception would become the norm. He saw this reflected in the usage of the terms 'Infinite Justice' and 'Enduring Freedom'. This prediction remains, to this day, strikingly accurate and penetrating. Furthermore, as Ranciere noted the effects of this become dialectical. What starts off as a response to stabilise the internal order (as reflected in civil liberties etc.) is pushed into the external sphere (as reflected in war), rebounds back into the internal sphere, the infinite exception in the shape of war becomes the infinite exception in respect of internal political life.
p.24
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