The status of international law is a subject that is still up for debate, particularly as it relates to issues such as the War on Terror and issues of greater international justice. As the world grows smaller, and a smaller number of people can affect the safety and security of a number of nations all across the globe, it is ever more important to establish the role of law in how terror threats and declarations of war should be responded to. In recent years of the War on Terror, these questions have become increasingly pertinent to the current situation regarding enemy combatants. As facilities like Guantanamo Bay continue to operate, leaving political and enemy combatants without legal recourse from the international community, the question remains whether or not international law has any sort of recourse for these types of situations.
The way states behave in international law is in great part due to the system structure that they have in place: “While system structure cannot account for all international behavior, it is increasingly accepted that explanations of international politics formulated entirely in terms of unit-level or dyad-level variables are fundamentally incomplete.” The system of international law is a series of intertwining units that interact with each other according to this structure, instead of a functioning of any of its component part. States will make choices regarding international law based on what they feel is appropriate to their structural needs and requirements. International law has its limits when it comes to independent states, as domestic law does on places outside of one’s jurisdiction; this makes changing system structures particularly difficult.
The War on Terror has inextricably changed our outlook on international law, with nations scrambling to gain a greater sense of authority and power within the boundaries of other nations: “traditional norms of civil rights and international humanitarian law have become obsolete and counterproductive in the face of new realities engendered by modern terrorism.” In essence, new models of aggression and warfare have to be determined in the face of non-state entities like Al-Qaeda, ISIL and others, which do not have a concrete border or distinct representatives of a physical location. This makes international law complicated, as the issue of due process can be difficult when there is no country to stand for enemy combatants when one o them is detained. With this complication of the due process and prisoner of war models, in which prisoners are afforded a fair trial and are prohibited from being tortured or put under duress, respectively, terrorists have little recourse against the things that are done to them.
While this is true, international law still carries with it a great deal of power, and an allure stemming from its close connection to morality. By making law enforcement more inconvenient to apply, the use of force and aggression must be more smartly utilized, which is of tremendous benefit to everyone involved: “Inconvenience in law enforcement is the price of the rule of law.” Even with these vague moral boundaries and incentives, there is still very little to outright protect terror combatants, given the unanimous admission that keeping terrorists imprisoned is preferable to letting them go. Because there is no real nation-state to advocate for these individuals, they are left with no defense when it comes to international law.
An important factor to consider when dealing with the problem of the United States’ overreach in international law with regards to enemy combatants in the War on Terror is the political dominance of America itself. As America is a dominant state, it is much less likely to work with international law if they feel they can get away with it, or if the risks of infringing upon this law are greater than the gains they have in its violation. International law, in these instances seems “unable to constrain a powerful state on its own”; to that end, “it is assumed to depend for its effectiveness on a balance of power.” Hegemonic entities such as the United States have a complicated relationship with international law, interacting with it as they see fit and seeking to limit it when it interferes with their own goals. These states have the power to lessen international law, the other states often having the choice whether or not to tacitly endorse these initiatives or to push back against them.
International law has a complicated role in politics when it comes to a dominant state violating laws as a result of a lack of accountability in detaining and torturing combatants for non-state actors, such as terrorist cells. To that end, new ways of wading through international law to force hegemonic states to interact effectively with other states must be found. One way in which international law can potentially be navigated is through a neorealist model, in which the strategic behavior of states is determined through the importance of the structure of their respective systems. However, this does not account for the chaotic and often unpredictable nature of terror threats: “anarchy as a property of the international realm does not necessarily have the consequences neorealists attribute to it.” To that end, a new approach to international law, appealing to system structure, may be useful for facilitating a greater sense of social justice with regards to terror combatants and their proper treatment.
Frank, Thomas M. 2004. “Criminals, Combatants, or What? An Examination of the Role of International Law to the Threat of Terror,” American Journal of International Law, 98(4): 686-688.
Kocs, Stephen A. 2004. “Explaining the Strategic Behavior of States: International Law as System Structure ,” International Studies Quarterly, 38(4): 535-556Krisch, Nico. 2005. “International Law in Times of Hegemony: Unequal Power and the Shaping of International Legal Order,” European Journal of International Law, 16(3): 369-408.
Francis Anthony Boyle, World Politics and International Law (JX3110.B58 W67)Richard A. Falk, Revitalizing International Law (JX3110.F3 R48 1989)