Of Laws and Wars

Sarah Cleveland is a Professor of Law at the University of Texas at Austin, specializing in international human rights and foreign affairs and the Constitution. A former Rhodes Scholar, she served as a clerk for U.S. Supreme Court Justice Harry Blackmun and as a Skadden Fellow with Florida Legal Services before coming to UT. Following a panel discussion on the war in Afghanistan earlier this fall, Cleveland spoke to TO about the international law implications of the conflict.

Texas Observer: As the Taliban loses control, the Northern Alliance (NA) are inevitably gaining. How much responsibility does the U.S. incur for their actions, including the recruitment of child soldiers and gross human rights abuses?

Sarah Cleveland: We’re not responsible for the actions of our allies. We might be responsible if we acted in concert with them or aided and abetted the NA in committing war crimes or intentionally targeting civilians and committing other gross human rights violations. I suspect and would hope that in part the U.S. hesitance in becoming too entangled with the NA is due in part to the fact that we are not that comfortable with the way the NA conducts itself and do not want to be implicated in its actions. We also of course have the delicate problem that if we succeed in replacing the Taliban with the NA, we may not have accomplished a great deal, either for the international community or for the people of Afghanistan.

TO: What about refugees? Does the U.S. have any responsibility to the people who are fleeing due to its bombing campaigns, or does that responsibility lie with the countries to which the refugees flee?

SC: Under the U.N. Convention on the Rights of Refugees, the obligation of a state toward refugees, toward a legitimate refugee–someone who is fleeing persecution as a result of their membership in a political, social, or religious group, etc.–only extends to prohibiting the country from returning the refugee to the place they’re fleeing. You can’t forcibly return a refugee to the persecutors. There is not a clear obligation under international law to admit refugees, which is why you’ve seen Pakistan and Iran close their borders to refugees. Of course, the U.N. High Commissioner for Refugees is working to try to get these countries to accept refugees, or at least to establish safe camps immediately within their borders to protect the refugees. But there is this difficulty under international law that states aren’t obligated to accept refugees, which leaves people like the Afghan refugees in a terribly uncertain situation.

TO: The international community has favored banning the use of land mines, but what about cluster bombs? The “bomblets” are just about the same size and shape as soda cans and the same color as the food packets that are being dropped. There have already been reports of civilian deaths in Afghanistan due to these bomblets. Does international law have anything to say about allowable types of weapons, or would it take a special treaty for each type of weapon?

SC: International law prohibits the intentional targeting of civilians–it’s a crime against humanity to intentionally target civilians. This does not mean that civilian casualties that result from the prosecution of an armed conflict violate international law. It simply means that, in engaging in armed conflict, a country has to respond in proportion to the attack against it and also attempt to avoid civilian casualties as much as possible. In this case, I don’t think that the use of cluster bombs as the U.S. has done would constitute crimes against humanity, but it might be something that the international community might want to consider prohibiting or restricting the use of, through a convention like the land mines treaty. Of course, the U.S. has not signed on to the land mines convention. But even the International Court of Justice has declined to find that the use of nuclear weapons would necessarily violate international law, so the destructiveness of a particular weapon against the civilian population does not, per se, make it an international law violation.

TO: On the home front, is this war legal? Bush called it a war, everybody knows it’s a war, they’ve admitted to having troops on the ground in Afghanistan, but Congress did not pass a declaration of war.

SC: Unfortunately, I think this war is all too legal on the domestic front. The Constitution gives Congress the power to declare a war, but does not obligate Congress to declare war in order to prosecute an armed conflict. Since the beginning of the country, there have been wars that the U.S. has pursued that were not declared. There was an undeclared war in 1798. There have been few declared wars in the history of our country: The War of 1812, the Spanish-American War, and World Wars I and II. Korea was not a declared war; Viet Nam was not a declared war. The Constitution does require Congress to participate in the decision to prosecute a war. It doesn’t allow the president to do it unilaterally. But by the resolution that Congress adopted on September 13, Congress did authorize the president to use all necessary and appropriate force against the nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks on 9/11. It’s an extremely broad authorization. It doesn’t identify any countries, nor does it limit the authorization to any particular countries or groups. It does not have a deadline. It basically leaves to the president’s discretion against whom to prosecute the war and how to prosecute the war. Congress specifically indicated in the resolution that it constitutes authorization required by the War Powers Resolution, which is a separate statute that says the president can’t commit U.S. troops to hostilities abroad without congressional authorization. So Congress has definitely authorized war, and they appropriated about $20 billion to the president to prosecute it.

TO: However he wants to?

SC: I would basically view this authorization of the use of force as Congress giving the president a blank check to prosecute whatever war on terrorism he wants to, which I think is a very problematic abdication of Congress’ duty to bring reason, judgment, and consideration to U.S. military activities. They didn’t need to authorize the use of force across the board in order to show that they supported the president in his response. I’m basically with Barbara Lee of California on that one…. The ironic thing is they said they didn’t want to adopt the Tonkin Gulf Resolution all over again, but that’s basically what they did.

TO: The U.S. has called Cuba, Libya, North Korea, etc., rogue states, yet it has in the past refused to accede to World Court decisions, such as in the Nicaragua case. Is there a mechanism to urge compliance on powerful states?

SC: The answer is consensus–international opinion is how you make us comply.

TO: And you don’t see anybody urging sanctions on the U.S., do you?

SC: No, you don’t. Not in this particular context. I think that’s why the international coalition is important to the U.S., and I think the fact that we’re targeting Afghanistan has made it easier to obtain international support for this conflict because very few countries recognized the Taliban (none do now) and because even Muslim states in the Middle East have no love lost for the Taliban. It would be much more difficult to obtain this kind of international consensus to conduct this kind of bombing campaign against any other country in the Middle East.

TO: Even Iraq?

SC: Even Iraq has more friends than the Taliban. The one thing that is interesting about all this is that it highlights the problem of not having an international criminal court available to prosecute the perpetrators of the 9/11 and similar attacks. Whether we get bin Laden or not, there will be numerous other people who will need to be brought to justice. There may be subsequent actions. Given the politicized nature of U.S.-Islamic relations, it’s very difficult for countries like Pakistan to extradite people to the U.S. without suffering severe internal political consequences. It is difficult for many citizens in the Muslim world to believe that individuals tried in the U.S. will get a fair trial. If there were an international tribunal–either the permanent international criminal court which is being established, or some type of ad hoc tribunal established by the U.N. Security Council, such as were created for the former Yugoslavia and Rwanda and are now being created for Cambodia–if there were an international tribunal like that, it would both be easier for countries to extradite individuals and the tribunal itself would be viewed as having greater legitimacy than a U.S. court would, standing in judgment over these people.

TO: President Clinton signed the Rome Statute, right, but it hasn’t been ratified by the U.S.?

SC: Right. That’s the foundation document for the permanent international criminal court, which is being created, and presently we’re waiting for enough countries to ratify the treaty for the tribunal to be established. A certain number of countries need to sign on before the court can be created, so we’re in the treaty ratification process right now. When Senator Helms was Chair of the Senate Foreign Relations Committee, he announced that the treaty would be dead on arrival in the Senate if submitted by the president. I think this conflict indicates both why the U.S. is reluctant to sign and why it would be a good thing if we did. We’re reluctant to sign because we’re afraid that we might be dragged in for committing crimes against humanity or war crimes in a conflict such as this. On the other hand, if the court existed, then there would be a tribunal that would have jurisdiction to prosecute crimes against humanity. Its jurisdiction could be extended to include acts of terrorism and so forth.

TO: I just read that Helms and his gang have introduced a bill against the Rome treaty, and that Bush is with them.

SC: I believe there is a bill in the Senate to prohibit any U.S. funds from being used to participate in negotiations regarding the international criminal court, which means that Congress is trying to prevent the U.S. even from helping to shape the court to be a tribunal in which the U.S. might want to participate in the future. The other big, nebulous problem raised by this conflict for international law is that it doesn’t fit any of the traditional models for armed conflict. This was not a clear attack by a state. We have announced that we’re holding the Taliban responsible for the acts of al Qaeda, but in 1985 the Security Council rejected a similar claim trying to hold Tunisia responsible for acts of terrorists within its borders. The rules regarding state responsibility for the acts of their own nationals are being tested and perhaps modified in this conflict. The rules regarding self-defense are being loosened in this conflict, and it does pose real problems for the duty to protect civilians in armed conflict, because it’s not the red coats versus the green coats on a battlefield.

TO intern Sandra Spicher is an MFA candidate at the Michener Center for Writers at UT-Austin.