Exorcising Hobbes: Frank Anechiarico Reviews the War on Terror and the Framework of International Law
Anechiarico, Frank, Harvard International Review
In the mid-seventeenth century's The Leviathan, Thomas Hobbes presents a dilemma to those designing and reforming the government structure: the choice between chaos and order brought by the surrender of personal choice to a "sovereign." In the series of newspaper articles published between 1787 and 1788 collected as The Federalist, James Madison and Alexander Hamilton address Hobbes's dilemma with a brilliant defense of the US Constitution's structure in which power is balanced and divided regionally and the people are sovereign. The US Civil War revealed the failure of the initial US plan. Post-bellum amendments to the US Constitution reformed federalism to give more power to a central government that would define and defend individual rights, although it took nearly a century for the new regime to take hold.
However, the balance between central control and decentralized sovereignty is far from settled. The British and Spanish, for example, have strong central governments that have become increasingly federal in the past 20 years. For an expanding range of issues, the European Union has become the sovereign for member states. The US government was highly centralized by the 1970s and has begun moving toward localism in many respects since the mid-1990s.
In The War on Terror and the Framework of International Law, Helen Duffy assesses the way international law has addressed Hobbes's dilemma. She considers how international laws and agencies, national and international court decisions, and broadly accepted customary law apply to state and non-state actors in the wake of the attacks on New York and Washington on September 11, the subsequent attacks in Madrid, London, Bali, and Istanbul, and the response that the US and British governments have labeled the "war on terror." It is often considered that realpolitik across national borders is an example of Hobbes's "state of nature" in which there is no sovereign power and no order other than a balance of fear, a balance exemplified by the Cold War. Duffy does not put her account in the historical context of conflict theory, but she is clearly working within it.
The structure of Duffy's book proves to be an excellent vehicle for examining both the efficacy of international law and the way it has been used, manipulated, and flouted before and after 9/11. Duffy served as legal officer for the Prosecutor's Office of the International Tribunal for the Former Yugoslavia and as counsel to Human Rights Watch in New York, and she is currently legal director of Interights, the human rights society based in London. Operational familiarity with the laws, decisions, and agencies of international adjudication makes Duffy a credible and skillful analyst.
The tone of the book is important to note. Duffy raises questions about each issue in her purview and often ends the discussion with yet more questions. This allows the reader to see the strengths and weaknesses of international law as it confronts the war on terror and as it has been used in the past. An example of her thorough and readable juxtaposition of law and behavior is the excellent discussion of post-9/11 international criminal law. The international tribunals for crimes in Yugoslavia and Rwanda are compared to the very few criminal prosecutions that have come out of the current conflicts in Afghanistan and Iraq. This small number is considered remarkable in light of the large number of detentions resulting from military action in those two countries. This is in spite of the UN Security Council's Resolution 1373 of September 28, 2001, which "established the obligation of all states to, among other things, afford other states the greatest measure of assistance in connection with criminal investigations or proceedings in relation to terrorism." The chapter provides detailed explanations of the potential use of international extradition and international courts, the US rejection of the International Criminal Court, and the US use of allies who have few scruples in pressuring detainees to provide information, which Duffy calls "irregular rendition. …