My friend Damon Linker has a new piece for The Week arguing that George W. Bush, Dick Cheney, and Condoleezza Rice cannot be war criminals, because the laws they are accused of violating are merely “international law,” which is no law at all:
[I]t’s inaccurate to describe these rules and regulations as laws. They are, strictly speaking, bilateral and multilateral treaties between and among governments.
Laws, by contrast, are written, enacted, and executed by governments, and they apply exclusively to those residing within territorially defined political communities (be they city states, nations, or empires). Citizens of liberal democracies hold, moreover, that laws gain legitimacy — and become binding — only with the consent of the governed. And that standard is (tacitly) met only when the laws have been crafted by the people’s democratically elected representatives.
“International law” fulfills none of these requirements.
Treaties among governments are still written and enacted by governments. They enjoy the “consent of the governed” in just as much a sense as national laws do(*): they are created by representatives of the people. International organizations, after all, represent governments, who in theory represent voters.
Let’s look at what the U.S. Constitution says: Treaties are the supreme law of the land (Article 6, clause 2). That means they override laws passed by Congress! The Supreme Court can and should strike down ordinary legislation that conflicts with the U.S. government’s treaty obligations.
Now, international law doesn’t have a coercive enforcement arm (and a good thing too), but it does have enforcement mechanisms that rely on reputation and incentives. When a government violates its treaty obligations, it runs the risk of incurring sanctions, including (for war crimes) the extradition of its leaders to international criminal courts.
The U.S. government should be careful about entering into new international agreements and treaties precisely because international laws do have legal force. Were these instruments merely rhetorical, the Senate could afford to give them merely perfunctory debate, but Senators realize that they do matter, and they do debate them very seriously.
Now, whether Bush Administration officials are war criminals is another matter. It’s a complicated issue, but interested readers can take a look at the debate over how the Rome Statute of the International Criminal Court should define the crime of “aggression.” One can plausibly argue that the U.S. government had not signed up to a particular definition of this crime at the time of the Iraq War and so was not bound by it.
(*) Which is to say: very little. I’m not bound to obey laws simply because someone assigned to represent me voted for them. But this argument undermines the moral force of all kinds of laws, not just international laws.