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Overselling International Law

Critics of America's conduct in the war on terrorism have consistently invoked international law in support of their criticism. Too bad so many of those criticisms have been, well, bogus and wrong.

In fact, the overuse of international-law rhetoric may be damaging international law itself.

United Nations High Commissioner for Human Rights Mary Robinson claimed that attacks on the Taliban were permissible under international law only if they harmed absolutely no civilians, damaged no civilian property and did nothing to impede relief efforts.

Amnesty International has claimed that the joint Northern Alliance/U.S. suppression of the prisoner-of-war revolt that killed 40 Northern Alliance guards and one American intelligence agent may have been a "massacre" that violates international law.

It has also claimed that CIA agent Mike Spann's purely verbal "grilling" of American Taliban John Walker Lindh may have constituted "torture" in violation of international law, and many advocates have argued that the balmy conditions at Guantanamo Bay, Cuba, are somehow in violation of the Geneva Convention, without acknowledging, for the most part, that Al Qaeda members don't qualify for protection under the Geneva Convention.

In making these claims, the groups and individuals in question have been short on specifics and long on generalities, grouping the (four) Geneva Conventions together into a single, mythical "Geneva Convention" that seems to have acquired the status of an all-purpose wish-fulfillment tool for human rights activists.

And this mythical convention is treated as an all-encompassing piece of sacred scripture that descended from on high, rather than as the product of lengthy and complex negotiation among nations that had particular goals in mind. Other international documents and doctrines have received similar treatment.

I'm not a working lawyer in the field — but then neither, really, are the critics. Indeed, the major body of such expertise on the international law of war worldwide resides within the legal offices of the United States armed forces, not among the commentators.

However, unlike most of those opining on the subject, I did at least take courses on these subjects when I was at Yale Law School, and I can say with some confidence that nearly all the claims being made by various "human rights" groups in the name of international law are unfounded. (Indeed, were complaints like Robinson's true, that would be a damning indictment of international law, not of the United States' behavior).

These claims about international law are also positively destructive, and indicate just how out of touch such groups are. In ordinary times, when the stakes are low and no one is paying much attention, claims that international law somehow commands the result that these groups want may often work. But now people are paying attention, and the absurdity of many of the claims being made in the name of international law is obvious.

The likely result is that international law — and particularly international human rights law — will enjoy far less prestige in the future. If you believe, as I do, that having good law governing warfare and human rights is a good thing, then this loss of prestige is a bad thing.

Governments will be less constrained in the future — even by actual, as opposed to imaginary law — because the watchdog groups will have blown their credibility. This is likely to be especially true in the United States. Among the American public, international law is already seen as the province of striped-pants types who care more about making things comfy for international bureaucracies and left-leaning politics than about the law or American interests.

These attitudes are intensifying, and not just among the general public: On several law professor e-mail lists that I subscribe to, nonspecialists are expressing open disbelief that international law does what some antiwar people are claiming it does, along with the deeply felt sentiment that if it does, then it needs to be changed.

And if you believe that the United States will come out of this war with a much broader and more assertive role in a world where it will be — even more than before — the world's only superpower, these changes in attitude have to matter. If activist groups continue to oversell international law, it will merely ensure that Americans will ignore not only their views, but also international law in general. Indeed, it may be worse than that: There may be a strong constituency that believes that most international law is merely a confidence game designed to hobble American power in support of an anti-American agenda.

That will be a very bad thing for international law if it happens. But it will also be the fault of the very people who will be complaining most loudly when it does.

For those of us who believe that good international law can be a powerful positive force, then the transformation of international law from a body of rules that serve the interests of civilized nations to an all-purpose tool of anti-Americanism, supervised largely by international advocacy groups, is disturbing. I certainly find it so.

Glenn Harlan Reynolds is a law professor at the University of Tennessee and publishes InstaPundit.Com.  He is coauthor, with Peter W. Morgan, of  The Appearance of Impropriety: How the Ethics Wars Have Undermined American Government, Business, and Society (The Free Press, 1997).

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