BARBARIANS AT THE GATES: A POST-SEPTEMBER 11TH..., 73 Miss. L.J. 639 73 Miss. L.J. 639 Mississippi Law Journal Winter 2004 Article BARBARIANS AT THE GATES: A POST-SEPTEMBER 11TH PROPOSAL TO RATIONALIZE THE LAWS OF WAR William Bradforda1 Copyright (c) 2004 Mississippi Law Journal, Inc.; William Bradford “And were a civilized nation engaged with barbarians, who observed no rules of war, the former must also suspend their observance of them, where they no longer serve to any purpose; and must render every action or recounter as bloody and pernicious as possible to the first aggressors.”1 I. Introduction A. Humanizing War with Law: Aspiration Since the dawn of man,2 war3 has been justified as an *640 object of divine ordination,4 the natural state of humanity5 and a tool in the progressive betterment of character,6 culture7 and civilization.8 In this hyper- ideological age tragically *641 symbolized by September 11, 2001, war, to the dismay of those who hoped material transformations might weaken its siren’s call,9 waxes ever more destructive,10 driving efforts to abolish force as a moral imperative11 and, less quixotically, to induce compliance with an accreting body of rules, known as international humanitarian law (IHL),12 to “humanize” armed conflict. *643 13 This progressive regulation14 has met nearly universal approbation:15 many ethical people, instinctively antipathetic *644 to war,16 welcome any anodyne and few proclaim its absolute independence from legal regulation.17 Indeed, the distinction between “murder” and “ killing in war” is now difficult to sustain without reference to positive law,18 and the term “war crime”19 has entered the popular lexicon20 accompanied by images of atrocity that provoke moral outrage.21 Empirically, states and individuals obey IHL at least some of the time,22 and the phrase “laws of war” is no longer ipso facto oxymoronic. *645 B. Frustration: Compliance Deficiencies Incorporation of humanitarian principles--fundamentally moral conceptions-- into law presents ontological problems, and thus has war proven recalcitrant to legal restraint: the non-derogable limitations IHL purports to impose23 have been transcended throughout its entire developmental history.24 Prior to World War II, IHL was enforceable only insofar *646 as states possessed the political will to prosecute their own nationals,25 and suppression of violations was left largely to an informal regime of reprisal.26 The recent record of compliance is improving, yet still sparse.27 Confronted by realist, just-war and behavioralist explanations for failures to restrain self-interested soldiers and states in combat,28 IHL scholars, *648 by the 1980s, were lamenting a regime shrinking to the “ vanishing point” of international law.29 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 2 BARBARIANS AT THE GATES: A POST-SEPTEMBER 11TH..., 73 Miss. L.J. 639 C. Formalization: The International Criminal Court Despite its history, IHL has been resurrected by the post-Cold War passion of its proponents. Freed of the restraints of bipolar paralysis,30 dedicated to the suppression of war *649 crimes as part of a human rights agenda31 and convinced that the path to this goal ran ineluctably through law, the torrent of globalization was steered toward the establishment of the first permanent tribunal32 with universal jurisdiction to *650 punish serious violations of IHL by individuals.33 Despite a contentious drafting histoprocess,34 state after state acceded to the Rome Statute,35 and the International Criminal Court *651 (ICC), hailed as a triumph of international civil society over statist impunity36 certain to bring the worst violators to brook,37 entered into force in July 2002.38 However, long-standing United States rejectionism39 manifested in heated objections. *652 D. Rejection: The United States--Sole Indispensable Nation--Actively Opposes the ICC 1. Arguments for Public Consumption: Sovereignty, Accountability, Legitimacy United States critics prophesied that, rather than administering universal justice, “rogue” prosecutors and states parties,40 eager to circumscribe United States hegemony, would *653 prosecute members of the United States Armed Forces41 for acts not widely recognized as violations of customary IHL,42 *655 especially the blurry, unsedimented principles of necessity,43 *656 proportionality44 and distinction.45 By unjustifiably increasing *657 the criminal exposure of United States forces engaged in thankless humanitarian operations with which the world bailiff has selflessly saddled itself,46 a politicized icc with a *658 mandate to remake IHL47 would induce isolationism.48 United States opponents further opined that, despite textual deference to complementarity,49 the ICC would subvert United *659 States jurisdiction,50 trump United States sovereignty51 and vitiate the procedural rights of United States defendants.52 Critics railed further at a lack of U.N. Security Council oversight they deemed essential to ensuring the political accountability and democratic legitimacy of the ICC.53 *662 Thus, although the ICC commenced operations in March 200354 after garnering the support of a majority of states for which it is now the regnant paradigm for enforcing IHL, it lacks the backing of the sole “ indispensable nation.”55 The United States signed, but did not ratify, the Rome Statute56 *663 and subsequently withdrew its signature.57 Moreover, the United States has flexed economic muscle and threatened to withdraw from peacekeeping commitments to dissuade ratifications and exempt its nationals from ICC jurisdiction.58 *664 The American Servicemembers’ Protection Act59 terminates military aid to states parties, precludes United States personnel assignments to missions in their territory and, with the “Hague Invasion Clause,”60 commands the President to employ “all means necessary,” including military force, to rescue any United States national in ICC custody.61 In short, the United States has “washed (its) hands of the (ICC).”62 *665 United States hostility strikes the devoted transnational cadre supporting the ICC63 as apostasy given the history of United States leadership in the defense and promotion of human rights.64 In discourses strewn with pious nostrums, universalists deride irresponsible attachments to a realist mode of governance--organized upon principles of state power and sovereignty65--that more idealist theories and multilateral *666 institutions-- organized upon general principles of equality and law--are said to have displaced.66 For ICC partisans, not only is the court institutionally superior to the ancien regime,67 but the meritless objections actually militate in its favor.68 If the United States fears the prosecution of its soldiers, *667 it need only ensure that they do not commit war crimes, or punish them when they do.69 By its opposition the United States, according to this globalist philosophy, has stuck itself on the wrong side of history.70 © 2013 Thomson Reuters. No claim to original U.S. Government Works. 3 BARBARIANS AT THE GATES: A POST-SEPTEMBER 11TH..., 73 Miss. L.J. 639 If the asserted bases accurately portrayed the grounds upon which the United States eschews participation, a quick solution could be crafted:71 the United States might accede to the Rome Statute, join in the (re)definition of crimes within ICC jurisdiction, secure the permanent immunity of peacekeepers operating under Security Council mandate,72 amend the Statute to enhance individual rights and elaborate complementarity to support deference to domestic judicial processes. However, the etiology of United States disaffection is traceable less through statutory provisions than through a post-September 11th set of understandings concerning the challenge posed by the intersection of international terrorism *668 73 and weapons of mass destruction (WMD),74 along with the proper role of IHL in the battle against this threat to civilization.75 *669 Although these criticisms are not meretricious, a “decent Respect to the Opinions of Mankind”76 urges a declaration of the causes that impelled the United States to reject a venture to which many states have committed themselves. 2. Criminalization of the War on Terror? The Bush Doctrine and the ICC Prior to the attacks of September 11, 2001, terrorism was widely considered, like narcotrafficking or counterfeiting, a transnational law enforcement problem necessitating institutional cooperation between civilian criminal justice systems of concerned states.77 The United States and other states scored several apparently major legal victories against international terrorists in civil courts, an outcome that seemed to support the utility of the transnational judicial response to terrorism,78 and the negotiations toward the Rome Statute *670 nearly included terrorism as a crime within ICC jurisdiction, underscoring widespread support for judicial responses to the phenomenon.79 However, while eradication of the global scourge of terrorism may benefit from allied judicial efforts, the attacks unleashed on the United States that infamous morning fundamentally transformed, from the United States vantage point, perceptions of the nature and magnitude of the danger and, consequently, the proper instrumentalities to employ and objectives to pursue in response.80 September *671 11th--the first day of a new historical era--withdrew the veil of ignorance, and the United States now concedes that, after a decade of denial,81 it is at war82 against a menace no less *672 threatening