International Society and America's
War on Terrorism
The evidence presented in Chapter 6 contributes to the general argument that the United States prefers an international society of states because it is in this kind of society that it can preserve the preferred image of itself and advance its particular interests. The United States was able to gain through its bilateral relationships with weaker states, and through the UN Security Council, the kind of guarantees that it was unable to gain from the ICC and its supporters. This chapter advances that argument one stage further by focusing on the US response to a postmodern challenge of a very different kind, al-Qaeda. The terrorist attacks of 9/11 were clearly crimes against humanity and for some commentators an appropriate response would have been the creation of a special international court. An ad hoc arrangement such as this would have been required because the attacks fell outside the temporal jurisdiction of the ICC.1 It is clear, however, that the Bush administration's suspicion of international criminal justice was not the only factor preventing such a move. The perception existed that the terrorist threat had developed because the law, particularly under the Clinton administration, had hamstrung US policy.2 After 9/11, the United States would interpret the terrorist threat through the prism of 'war' rather than 'crime' and the President would claim broad executive powers including the ability to determine when international law could restrain US actions. As is explained below this response has been contested in US courts. This is significant to the extent that the Bush administration's perception of international law is not necessarily representative, but this is not the focus of this chapter. The purpose of this chapter is instead to demonstrate how in their response to the threat posed by violent non-state actors, US
1 Roy S. Lee, 'An Assessment of the ICC Statute', Fordham International Law Journal, 25
(2002), 756–7; Geoffrey Robertson, 'Lynch Mob Justice or a Proper Trial', The Guardian,
5 October 2001; see also 'There Is a Legal Way Out of This', The Guardian, 14 September
2001; 'Kangaroo Courts Can't Give Justice. We Need an International Tribunal for Terrorist
Suspects', The Guardian, 5 December 2001; Imran Khan, 'Terrorists Should Be Tried in Court',
The Guardian, 12 October 2001.
2 See, e.g. Ruth Wedgwood, 'The Law of War: How Osama Slipped Away', National Interest,
66 (2001–2), 69–75.