moral equivalency

[Parry, John]

I apologize for length, tediousness, and tenuous linkage to conlaw.

Clearly the U.S. and al-qaeda differ under international law both in their
status and in the basic nature of their actions (al-qaeda almost by
definition violates international law in nearly everything it does).

But it's not just supporters of al-qaeda who claim the US violates
international law with frequency.  Chomsky, for all of his flaws, at least
condemns al-qaeda even as he claims the U.S. is a massive violator of
international law.  More respected and mainstream voices have accused the
U.S. of violating international law.  And I think many on the list would
admit that the US violates international law at least some of the time.
(Much of the discussion has been about whether the constitution allows the
U.S. to violate international law, whether customary or in treaties, and the
answer is clearly yes.)  I don't think it is necessarily immoral to violate
international law.  Hence my observation that the U.S. behaves like a great
power towards international law -- it picks and chooses -- was, I believe,
accurate but also, and more importantly, not intended as a general moral
indictment.

As you seem to suggest, part of the problem is defining international law.
If the U.S. disagrees that a particular norm is part of international law,
then disregarding that norm is not a purposeful violation of international
law.  But can the U.S. simply assert what the content of international law
is?  If that were true, it would also be true that the U.S. doesn't pick and
choose, but only because whatever the U.S. does necessarily satisfies
international law.  I would think that proponents of international law would
maintain that to be a good international law citizen (if there is such a
thing), a country must abide by international law norms even when it does
not want to, and perhaps even when those norms have been established by
authorities other than itself.

All of this provides good reasons to be an international law skeptic --
after all, who really is able to say what international law is (let alone
who has violated it) except for states themselves through their conduct and
agreements?

Now add in justice and morals.  Sometimes when we violate international law,
there doesn't seem to be a primary moral component (perhaps trade is
sometimes an example).  Other times, however, there might be.  I'm not
qualified to say whether the legal arguments are sound or not, but some U.S.
actions in Central America, the Middle East, and Southeast Asia have been
alleged to be both immoral and illegal under international law.  If true or
sometimes true, does that make us the moral equivalents of al-qaeda?  Of
course not.  But it does muddy the waters for people of good will, or of
undecided will, in other countries.

That's really my point.  I'm not sure that the U.S. can claim the
international law high ground in general, although I do think it can with
respect to al-qaeda.  I think the picture is more ambiguous than your claim
that the U.S. respects the rule of law, including international law.

Finally, what if we invade Iraq without UN approval (something the
administration has at least suggested it might do)?  Arguably, that action
would violate international law.  Could Iraq respond by targeting U.S.
political and military figures?  Could it use the Yemen incident as a
precedent?  I'm sure we both would say no.  But I also worry that the moral
high ground claim -- particularly if used as a license -- could lead us
places where we may not really want to go.

John T. Parry
Assistant Professor of Law
University of Pittsburgh School of Law
3900 Forbes Avenue
Pittsburgh, PA 15260
412-648-7006

-----Original Message-----
From: Tim Sellers [mailto:msellers at UBMAIL.UBALT.EDU]
Sent: Wednesday, November 06, 2002 11:43 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: moral equivalency

    My point was simply to explain, in response to a question,  how the
U.S. and al-Qaeda differ under international law.  This matters, because
the United States has always taken pride in respecting the rule of law,
including international law, and most American citizens (including those on
this list) would wish the United States to respect international law.

   You are right in observing that supporters of al-Qaeda have tried to
construct arguments to the contrary, and that some people of good will are
susceptible to arguments from moral equivalency.  That is why we should
take the trouble to explain the difference between al-Qaeda's position
under international law, and that of the U.S.

   I do not think that Eugene or others on this list have suggested that
the U.S. should pick and choose when to respect international law.  I think
that what they have done is to challenge the tendentious claims some people
have made on this list and elsewhere about the content of international
law, and about what institutions have the authority to determine its
content.

   This matters, because if international law were to be successfully
redefined to support an equivalence between the United States and al-Qaeda,
then many people would give up on the concept of international law.  You
cannot separate law too much from justice, without discrediting the law.


At 10:05 AM 11/5/02 -0500, you wrote:
>Here's the problem with that assertion.  The 9/11 attacks WERE atrocious
>crimes against humanity.  However, a great many people around the world --
>specifically including the people from whom al qaeda gets sympathy and
>support -- think the U.S. engages in as much or more terrorism and crimes
>against humanity as does al qaeda.  Noam Chomsky is famous/notorious for
>this view, and he gets a lot of readers around the world.  Tariq Ali's
>recent book comes pretty close to making the same assertions.  And so on.
>So the moral inequivalence argument does not get us very far.  Except, of
>course, that we are confident that we are correct (and I hope that does not
>sound tongue in cheek).
>
>What if, in fact, the US has violated international law in its various
>military activities?  (I'm sure that question alone could generate
extensive
>debate.)  Do we get to pick and choose when to follow it?  Certainly our
>government has the constitutional power to pick and choose (I agree
>completely with Eugene on this point).  But if we pick and choose, why
can't
>others do the same?
>
>So, what's my point?  I'm not saying the US is some kind of rogue state or
>international law criminal.  I think, instead, that we act towards
>international law the way great powers consistently have acted -- by
picking
>and choosing (whereas weaker states have a greater incentive to be
>consistent about adherence to international law).  But there are many
voices
>that do make the US-as-international-law-criminal argument, and at least
>sometimes we should take it seriously.  Moreover, we should expect that
what
>can be characterized as a legitimate military exercise (as I recall, we did
>something similar in WWII) also gets characterized as an assassination.
And
>more generally, we should not expect people automatically to agree when we
>say that we are simply enforcing international law.  They might conclude we
>are simply exercising power (perhaps for good reasons, perhaps not).
>Finally, I'd expect that some would argue that international law does not
>allow (or only in exceptional circumstances would allow) an ambush killing
>as a means of enforcing international law.
>
>Professor John T. Parry
>University of Pittsburgh School of Law
>3900 Forbes Avenue
>Pittsburgh, PA  15206
>412-661-1989
>
>
>-----Original Message-----
>From: msellers [mailto:msellers at UBMAIL.UBALT.EDU]
>Sent: Tuesday, November 05, 2002 8:47 AM
>To: CONLAWPROF at listserv.ucla.edu
>Subject: Re: War
>
>The difference is this: al-Qaeda violated the laws of war and of humanity
by
>its attacks on U.S. Embassies, the World Trade Center, the Pentagon,
>commercial airliners and many other acts of terror and attempted acts of
>terror around the world.  Under international law these are erga omnes
>violations of international law such that every state has the right to
>punish
>the perpetrators.  The United States, as the particular target of these
>attacks, also has a special obligation of security to its citizens that
>requires the government to take action to punish these violations of
>international law and to prevent further attacks.  By waging war against
>al-Qaeda and killing al-Qaeda combatants, the United States is enforcing
>international law.
>
>Al-Qaeda, however, has no legitimacy of any kind under international law.
>It
>has no right to wage war, and has not in any case ever respected the laws
of
>war, or expressed any desire to do so.  On both counts any use of armed
>force
>of any kind by al-Qaeda operatives is illegal under international law.
>
> >===== Original Message From Discussion list for con law professors
><CONLAWPROF at listserv.ucla.edu> =====
> >-For those who think we are at war with al-Qaeda, I assume it follows
that
>it
>is at war with us?  That is to say, if it is a legitimate act of combat for
>us
>to kill an al-Qaeda leader driving across a desert in Yemen because we
think
>he helped plan
> >the raid on the USS Cole, then on the same theory is it a legitimate act
of
>combat for an al-Qaeda member to kill a US general walking across a street
>in
>London because the organization believes that the general helped plan raids
>on
>Osama bin
> >Laden's caves?
> >Is there some way as a legal matter that one of these could be combat and
>the
>other murder? -E.
> >
> >
> >             ***********
> >      Prof. Eric M. Freedman
> >      Hofstra Law School
> >      Hempstead, NY  11550
> >      LAWEMF at Hofstra.edu
> >      Tel. 516-463-5167
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