Originally submitted as part of a course assignment under GOVN540 at AU

Globalising trends have sought to promote the importance of state membership in some form as part of a network seeking increased global governance and alignment of human rights-based common values via overarching multilateral institutions such as the United Nations (UN) and its various organs. Peter Singer ascribes to this vision, describing a gradual movement to “greater global governance” that follows from “acceptance of the ‘diminishing significance of national boundaries” (Falk 2006, 734). David Held argued that globalisation hadn’t reduced the power of the state but had simply altered how it interacted in a cosmopolitan framework strengthened by universally held ethical ideals (Id., 732). These trends have not detracted from the centrality of the nation-state as the key actor but have moved the world towards a more global sense of justice, order, and cosmopolitan state membership. Yet the United States (US) sanctioned steadily increasing use of drones or unmanned aerial vehicles (UAV) for targeted attacks against non-state armed actors as a mechanism for promoting state security and self-defence, challenges the very essence of these evolving trends, reinforcing the unequal membership of nation-states in the global community and returns the world towards a multipolar system of international relations and hegemony.

Since the acts of terrorism on September 11, 2001 (9/11), the US has been engaged in what the Bush administration initially declared as a global war on terror (Anderson 2011, 12). The early focus of their engagement led them to war in Afghanistan and Iraq, two regions easily identified as legitimate geographic areas of combat as defined by laws of war (Id., 14). For the US, these two conflicts also fit well within Maku wa Mutua’s conception of the predatory state where “[t]he ‘evil’ state…expresses itself through an illiberal, anti-democratic, or other authoritarian culture. The redemption or salvation of the state is solely dependent on its submission to human rights norms.” (Mgbeoji 2006, 863) In both cases, the US (in justifying its actions within a community of its peers) sought to repair the fabric of human security, torn by those horrible events which had brought to the fore a concept that armed, stateless actors were openly supported by ideologically sympathetic states or in lawless regions of the globe. As the “co-optation of deviant states into the family of nations” (Id., 861) is considered fundamental to building human security, the US took on the role as the leader in this fight to maintain a global sense of peace and justice through its war on terror.  These conflicts divided the world community, and yet the US, using its own lens for interpreting the universally accepted conventions of war, chose to sidestep the multilateral systems and instead asserted its’ right as a State, declaring that “when we feel strongly about something, we will lead.” (Rajagopal 2006, 775)

David Held, an author whose writings support cosmopolitan ideals, using international law and institutions as the framework to strengthen evolving global trends of state interaction, tends towards an optimistic belief that states are committed to shared universal values (Falk 2006, 732). Yet people such as Kofi Annan, the former Secretary General of the UN, reminds us that the UN is “an association of nation-states” and that the “sovereign State remains…the very linchpin of human security.” (Annan 2002) He goes on to say that those who are most optimistic about the outcome of globalization are generally people who enjoy the “security of citizenship and the rule of law in a well-organized and effective State.” (Id.) In considering these two somewhat opposing visions, the US’s war on terror points to an argument that favours membership and participation in the global system only as long as it benefits the individual state. Those benefits, and the ability to opt in and out of the system as deemed necessary by the participating state, accrue mostly into the accounts of those states with the power and institutional capacity to set the rules of the game at the global level.  In the case of the US war on terror and its use of drones, the US has been able to overcome the issue of sovereignty through its redefining of the rules of war and/ or armed conflict. What we see then is a multipolar system of power politics in which anarchy of so-called lawless regions of the globe that are referenced as harbouring terrorists is balanced by a handful of states that have the power to conceptualise or construct universal ideals to which we should all abide, or write the rules of engagement by which these ruling states can police the globe and help retrieve those states that have fallen out of step with these so-called normative values and ideals.

This returns us then to the importance of the sovereign state and the idea that it places the self (the state) ahead of the greater good, under the guise of promoting human security as a common interest for the global community. In his critique of Foucault’s writings on Law, Power, and Knowledge, Gerald Turkel reminds us that Foucault “formulated power as the core relation from which morality emerges rather than from universal principles of truth or transcendental values.” (Turkel 1990, 172) He also points out that “law is an element in the expansion of power” (Id., 170). It is here where we can find the most significant rift develop between the US functioning within a globalised community predicated on fundamental rights-based norms and ideals and the US functioning as a hegemon, unilaterally asserting its right of the state (but as part of human security writ large). Since this war on terror began, the US has challenged the normative basis for war, a characterization traditionally based on five conventions – the Hague Convention of 1907, the four Geneva Conventions of 1949 as well as the First Amended Protocol (Vogel 2011, 110). These Conventions set out the commonly agreed upon laws that govern armed conflict by, within, and between states, ultimately forming the basis for state interaction. “The law of armed conflict applies to the “conduct of hostilities,” hostilities being the touchstone for armed conflict and its laws.” (Anderson 2011, 10) The interpretation around the definitions that qualify these laws seems to fall less within the boundaries or governance of the international community as a whole and more within the judicial institutions of the state. Given that the US has a well-established judiciary, the government since 2001 has ensured it has met with its own court rulings in order to justify its combat actions, expand and\or set the boundaries of the legal geography of war, its participants, and as such ensures that it promotes the highest level of moral ethics and values, ideals that are self-created by the US (Id.). In essence, the court system in the US has constructed the justification, first of the geography of war, and subsequently of its participants, thus asserting itself as the high point of authority on interpreting universal conventions of war. Kenneth Anderson, a prominent author and Professor at the American University in Washington, notes that “[w]hat was supposed to be limited authority to conduct hostilities (but which was mostly language of limitation on their conduct) suddenly turned into license with regard to the conduct of intelligence activities, with no indication of what limits might be.” (Id., 13) As an example, the Obama Administration has suggested that “individuals who are merely “part of…an armed group are belligerents and, therefore, lawful targets under international law.”” (Vogel 2011, 120) International law left the definition of lawful combatants to mean those that more clearly resemble participants in a structured military environment, with a chain of command and who carry their arms openly while adhering to the rules of war (Id., 119). As Foucault points out, power creates the morality, rather than universally held truths (Turkel 1990, 172). Without seeking approval from the UN, the US unilaterally redefined combatants for its purpose (again in the name of security) and challenges that states which refuse or are unable to arrest these individuals have no claim to sovereignty when US drones enter their airspace for the purpose of eliminating threats against the US. (Vogel, 2011) This begs the question – would the US use drones to eliminate a target in Western China or in Siberia? The answer is in all likelihood no, as the balance of power remains a relationship of mulitpolarity among large nation-states that maintain an established judiciary to support their own interpretations on the rules of engagement or host a military capable of a significant counterstrike. Environments such as the so-called lawless, tribal regions of Pakistan, Afghanistan, Yemen, and Somalia remain easy prey for drone warfare since the US argues the states lack the authority or willpower to go after suspects the US deems security risks.

Clearly, the US takes comfort in its ability to write and interpret the rules of engagement that suit its purposes, when it sees fit to do so. The international community and its overarching institutions remain a community of unequal, independent nation-states which must still function around the individual interests of its membership.

References

Anderson, Kenneth. 2011. “Targeted Killing and Drone Warfare: How We Came to Debate Whether There is a Legal Geography of War.” In Future Challenges in National Security and Law, ed. Peter Berkowitz, 1-17. Hoover Institution, Stanford University, Forthcoming; American University, WCL Research Paper No. 2011-16.

Annan, Kofi. 2002. “The Role of the State in the Age of Globalisation.” In The Globalization Reader, ed. Frank J. Lechner and John Boli, 240-243. Blackwell.

Falk, Richard. 2006. “International Law and the Future.” Third World Quarterly 27 (5) (January 1): 727–737.

Turkel, Gerald. 1990. “Michel Foucault: Law, Power, and Knowledge.” Journal of Law and Society 17 (2) (July 1): 170–193.

Vogel, Ryan J. 2011. “Drone Warfare and the Law of Armed Conflict.” Denver Journal of International Law and Policy 39 (1) (January 1):101-138.