The United States as a Benevolent International Leviathan and the Need for Framing a Response to the Embassy Attacks Pursuant to Recognizable International Law
Lowenberg, Brian, Houston Journal of International Law
I. INTRODUCTION: THE MIDDLE EAST IS ON FIRE AND INTERNATIONAL LAW IS IN A STATE OF FLUX II. AFTER WITHDRAWING FROM THE ICC, THE IRAQI WAR PRESENTED A UNIQUE OPPORTUNITY TO RESTORE AMERICAN INTERESTS ABROAD AND PREVENT ANTI-AMERICAN FERVOR III. THE IMPORTANCE OF THE UNITED NATIONS SECURITY COUNCIL IV. BECOMING A BENEVOLENT LEVIATHAN A. Operation Neptune Spear: The Mission to Kill-or-Capture Osama bin Laden V. TOWARDS A LEGAL FRAMEWORK FOR RESPONDING TO THE EMBASSY ATTACKS
I. INTRODUCTION: THE MIDDLE EAST IS ON FIRE AND INTERNATIONAL LAW IS IN A STATE OF FLUX
Many hoped silently that the widespread anti-American protests and vitriolic hatred in the Middle East would simply sputter out. Some politicians are trying to wait it out in the blind hope that anti-American fervor will magically evaporate from the new Islamic landscape. That is not a realistic option. It was only a matter of time before the revolutionary trend of the Arab Spring turned from inward to outward and set upon the United States and its allies. On September 11, 2012, American embassies were attacked abroad. (1) This Article argues that an American response to the embassy attacks, especially the assault in Benghazi, Libya is a unique opportunity. The response should be declared publicly, recognized as part of a targeted-killing opportunity, (2) bolstered with citation to international criminal law, and executed with minimal collateral damage.
International law, by nature of its very name, should conjure up images of numerous statutes and a large body of case law. However, as many academics and politicians point out, international "law" simply has no real teeth. (3) The most recent war in Iraq had represented a unique and now lost opportunity to enhance international law with the creation of an international tribunal, i.e. an International Criminal Tribunal in Iraq (ICTI). (4) Other than the war in Afghanistan, Iraq was the last widespread intervention preceding the Arab Spring. (5) The failure on the part of the United States and allied coalition countries to form an international criminal tribunal now represents the single greatest failure of Western powers to fully solidify international law. (6) The ongoing crisis in the Middle East, however, presents another unique opportunity to shape the realm of international law into a stable, uniquely American one. (7) This is even more important as the world community and legal scholars understand that international law is in a state of flux, and, perhaps as some have said, also in complete "disarray." (8) The raid on bin Laden and increased drone attacks on foreign soil have hastened the crisis in international law. (9) In some ways, technology has overrun the framework of international law and it is up to current state actors, most notably, the United States, to rebuild that framework. (10)
II. AFTER WITHDRAWING FROM THE ICC, THE IRAQI WAR PRESENTED A UNIQUE OPPORTUNITY TO RESTORE AMERICAN INTERESTS ABROAD AND PREVENT ANTI-AMERICAN FERVOR
The United States has often sought to be part of the growth of international law, whether related to war, the protection of intellectual property, trade agreements, or criminal prohibitions. (11) Working toward the creation of the International Criminal Court (ICC), many had hoped to "make all men answerable to the law," (12) sustain international security, (13) and create, at long last, accountability for individuals who break international law. (14) Tyrants were to be treated as international criminals. (15) An international security based on the balance of power filled with alliances and threats of mutual destruction was to be replaced by rules and regulations. The letter of the law, for the sake of order, would reign supreme. (16) But the frightening prospect of using the ICC as a political weapon and the lack of certain fundamental provisions persuaded the United States to essentially remove its name from the ICC treaty. …