William Bradford, Barbarians at the Gates - University of Pennsylvania ...

Oct 8, 2001 - Security Council,102 in an attempt to hale United States personnel to ... E. Accommodation: Toward a Rationalized Theory of the Laws of War.
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73 Miss. L.J. 639 Mississippi Law Journal Winter 2004 Article BARBARIANS AT THE GATES: A POST-SEPTEMBER 11TH PROPOSAL TO RATIONALIZE THE LAWS OF WAR William Bradforda1 Copyright (c) 2004 Mississippi Law Journal, Inc.; William Bradford “And were a civilized nation engaged with barbarians, who observed no rules of war, the former must also suspend their observance of them, where they no longer serve to any purpose; and must render every action or recounter as bloody and pernicious as possible to the first aggressors.”1

I. Introduction A. Humanizing War with Law: Aspiration Since the dawn of man,2 war3 has been justified as an *640 object of divine ordination,4 the natural state of humanity5 and a tool in the progressive betterment of character,6 culture7 and civilization.8 In this hyperideological age tragically *641 symbolized by September 11, 2001, war, to the dismay of those who hoped material transformations might weaken its siren’s call,9 waxes ever more destructive,10 driving efforts to abolish force as a moral imperative11 and, less quixotically, to induce compliance with an accreting body of rules, known as international humanitarian law (IHL),12 to “humanize” armed conflict. *643 13 This progressive regulation14 has met nearly universal approbation:15 many ethical people, instinctively antipathetic *644 to war,16 welcome any anodyne and few proclaim its absolute independence from legal regulation.17 Indeed, the distinction between “murder” and “ killing in war” is now difficult to sustain without reference to positive law,18 and the term “war crime”19 has entered the popular lexicon20 accompanied by images of atrocity that provoke moral outrage.21 Empirically, states and individuals obey IHL at least some of the time,22 and the phrase “laws of war” is no longer ipso facto oxymoronic. *645 B. Frustration: Compliance Deficiencies Incorporation of humanitarian principles--fundamentally moral conceptions-- into law presents ontological problems, and thus has war proven recalcitrant to legal restraint: the non-derogable limitations IHL purports to impose23 have been transcended throughout its entire developmental history.24 Prior to World War II, IHL was enforceable only insofar *646 as states possessed the political will to prosecute their own nationals,25 and suppression of violations was left largely to an informal regime of reprisal.26 The recent record of compliance is improving, yet still sparse.27 Confronted by realist, just-war and behavioralist explanations for failures to restrain self-interested soldiers and states in combat,28 IHL scholars, *648 by the 1980s, were lamenting a regime shrinking to the “ vanishing point” of international law.29 © 2013 Thomson Reuters. No claim to original U.S. Government Works.



C. Formalization: The International Criminal Court Despite its history, IHL has been resurrected by the post-Cold War passion of its proponents. Freed of the restraints of bipolar paralysis,30 dedicated to the suppression of war *649 crimes as part of a human rights agenda31 and convinced that the path to this goal ran ineluctably through law, the torrent of globalization was steered toward the establishment of the first permanent tribunal32 with universal jurisdiction to *650 punish serious violations of IHL by individuals.33 Despite a contentious drafting histoprocess,34 state after state acceded to the Rome Statute,35 and the International Criminal Court *651 (ICC), hailed as a triumph of international civil society over statist impunity36 certain to bring the worst violators to brook,37 entered into force in July 2002.38 However, long-standing United States rejectionism39 manifested in heated objections. *652 D. Rejection: The United States--Sole Indispensable Nation--Actively Opposes the ICC 1. Arguments for Public Consumption: Sovereignty, Accountability, Legitimacy United States critics prophesi