By William Pfaff
In 2009, the former head of the international law department of Israel's military establishment, Daniel Reisner, said that "International law progresses through violations. We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal moulds. Eight years later, it is in the centre of the bounds of legitimacy."
In disagreeing with such justification in the New York Times, George Bisharat points also to the Israeli claim that its army's clashes with Palestinian protestors are "armed conflict' justifying weapons of war, rather than the limited police measures that international law authorises in dealing with protesting residents of illegally occupied Palestinian territory.
Bisharat also cites Israel's definition of people who have not left a designated military strike area after warning as being "voluntary human shields," the killing of whom is warranted, and civilian employees of the Hamas administration in Gaza as "terrorist infrastructure" and therefore legitimate objects of military attack. These acts, hitherto considered war crimes, have subsequently been without effective international condemnation since Israel created "facts on the ground" with respect to their use.
The United States has emulated this strategy for "progress" in dismantling international law. Its military and clandestine operations in recent years have included torture, kidnap, the use of anti-personnel fragmentation weapons, and the mass armoured and artillery "shock and awe" assault tactic employed against Baghdad and Fallujah in Iraq, whose purpose is terrorisation of civilian populations as well as enemy troops.
Washington's adamant hostility to the creation or recognition of international war crimes courts, widely supported in the international community, has amounted to acknowledgement that American practices would be likely to expose troops and officials to international war crimes indictments, or civil actions similar to Italy's indictment and recent trial in absentia of CIA officers charged with the illegal apprehension and rendition for torture of an Italian resident.
Now we have the case of the president of the United States himself implicated in drone-conducted assassinations of persons in foreign countries who are adjudged by American military and civilian operators, under authority of the Defense Department, CIA and the Executive office itself, to be unfit to live.
These are presented as acts of war against legitimate enemies. Since President George W. Bush obtained from Congress a declaration of unlimited war against "terrorism" — a phenomenon rather than a human or political entity — no definition of this war's scope or restraints (if any) has been possible.
When the threat to American forces is human, organised, and makes political claims, like the Taliban in Afghanistan, the conflict resembles traditional war or insurrection, and — in general — the combatants are recognised and action against them is legitimate by traditional legal standards.
With drone attacks, one is in a different category of combat, in which the enemy is difficult to positively identify and the purpose of combat is not to control territory and impose authority but to create fear and an atmosphere of terror due to the attacks' arbitrary character and the invulnerability of their authors.
Americans have already challenged the constitutional authority of the president anonymously to kill American citizens without trial or other "due process", as stipulated in the US Bill of Rights. This offers some reassurance to concerned Americans. Further challenge must be made to his implied assumption of a right to kill people wherever he pleases, in sovereign nations everywhere, in subversion of international law.
Since the late 19th century, the United States has probably been the nation which has done the most to promote international law. This effort went from American mediation in the Russo-Japanese War to the American proposal and decisive contribution to creating international parliamentary institutions — the League of Nations and the United Nations, as well as the Bretton Woods system of international economic agreements that followed World War II.
It now has become the nation in the world which is doing the most to destroy the international law in matters of war, peace, UN authority, and unilateral military intervention into the affairs of other countries. This usually is given an ideological justification that is a transparent rationale for American national interest.
Behind this lies the American sentiment of national exception. The country considers itself unique in history by virtue of its constitutional origins, its Bill of Rights, its governing system of balanced executive, legislative, and judicial powers (a system currently displaying immense and conceivably fatal difficulties).
The US is thought by many Protestant Americans to be a nation of divine origin, or bearing a divine mandate that exempts it from the demands placed upon or submitted to by other nations. For many, if not most Americans, a nation with such origins as ours cannot be held to the standards of the rest of the world.
While the drones are creating current controversy, there has yet to be an effective challenge in Congress, the judiciary, or the press and public to these major assumptions of American international policy, legal invulnerability or to the politically paranoid conviction that the United States remains under some kind of global threat justifying these extraordinary measures.
It is worth recalling that it has been less than a quarter century since the end of that terrible era in Western civilisation when ideological governments in Germany and Russia claimed that an elite of leaders, possessing special knowledge about the meaning and evolution of history, or about the destiny of human races, had the right and responsibility to attack the accepted norms of Western civilization in order to execute their "exceptional" missions. That ended badly.
Visit William Pfaff's website for more on his latest book, The Irony of Manifest Destiny: The Tragedy of America's Foreign Policy (Walker & Co., $25)
19 February 2013