Operation 'Enduring Freedom': Towards a New International Law and Order?
Professor of Law
University of Warwick
This essay has been long in the making it stands now based on a Keynote Address, Osgoode Hall Law school (October 13, 2001) Conference on Third World and International Order: Law, Politics and Globalization, currently under publication in the inaugural issue of TWIL, the Third World and International Law, Volume 1, Number 1 (2002, Kluwer). This the present version in Law, Social Justice and Global Development (LGD) 2001 further revises the latter text.
This commentary is being published as part of the open forum on Terrorisms, Social Justice and the Rule of Law. Recent tragic events have a tendency to destabilise our notions of war, justice and legality. This calls for the widest critical and intellectual analsysis. We are delighted to have two distinguished scholars opening this discussion. Peter Fitzpatrick is a leading authority on legality and modernism, Upen Baxi is prominent in rearticulation of human rights from the perspective of the voices of suffering. Readers are invited to submit their comments and views to the editors for publication on the journal. Please send your comments to Manish Narayan.
Keywords:International Law, September 11 2001, Globalisation, Global Justice, Terrorism.
This is a commentary published on: 16 April 2002.
Citation: Baxi U, 'Operation Enduring Freedom: Towards a New International Law and Order?', Law, Social Justice & Global Development Journal (LGD), 2001 (2). <http://elj.warwick.ac.uk/global/issue/2001-2/baxi.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_2/baxi/>
There is no manner of doubt that visions of world orderings, and of the role of international law, stand unalterably transformed by the catastrophic events of September 11, 2001 and the current response of the 'international community'. Perhaps, this period will be recalled and recounted as marking a turning point of post-modern international law.
We can only speak to these critical events (in the sense that Lyotard endows) as they unfold before our own eyes, from our own unhappy situatedness; the Clio's couch, the disengagement that only distance may bring, is not for us the gift of time. We have to struggle, as best we can, to make sense of current developments, amidst ever menacing forms of infliction of traumatic human suffering. This struggle is necessary, especially in an emergent global milieu rife with what early Habermas was to name as 'systematically distorted communication'.
The grave narrative risks that one runs in writing about September 11, and its aftermath, may not be minimised, even under the massive inhibitory injunctions arising from 'either you are with us or with them' context. The risks are real enough and these are not just that flow from the carefully contrived devices of silencing any critical discourse. The risks go beyond to any non-adversarial construction of ethical discourse that speaks to the tasks of human justice under conditions and contexts of terror, in ways that while respectful of lived experience of human suffering translates it, with full integrity, to the tasks of devising just and humane futures. By no means unique, the risks and tasks need to be undertaken/ performed, in Sisyphean modes, in every generation, endeavouring to preserve the fragile and hard won 'enclaves of justice' amidst the real and virtual destruction of 'justice constituencies'[ 1]. The narrative risks, thus translating individual biographies into social texts, and texts of power into texts for justice, I believe, pale into insignificance when set against the background of ever proliferating justificatory strategies and stratagems, on all sides, for the practices of politics of mass cruelty.
The tragic cruelty of September 11, and its still unfolding aftermath, marks the beginning of the end, in more decisive ways than ever before, of hegemonic patterns of force monopoly on which much of modern/contemporary international law 'rests'. Non-state actors have demonstrated an awesome ability even to render the solitary Superpower eminently vulnerable. Most states in the South, but not only these states, have been nearly constantly subject to mass 'terrorism,' no matter how constructed.
What makes September 11 poignantly inaugural is that it strikes terror into the very heart of the world's leading Global City and strikes also at the might of the Pentagon, exposing the post Cold War solitary hegemonic superpower to acute crises of nervous rationality. It thus initially, and understandably, leads to mass politics of justice, hysteria, and revenge, which then somehow needs to be translated into a radical renovation of the received international law languages of self–defence, collective security and world peace. Of necessity, this translation remains, as it were, the work of time, inviting acceleration of the future history of humankind.
Sovereign equality of all states, including the strong states, now also signifies equality in state vulnerability; that vulnerability also begins to operate as a source of strength. Already new forms of articulation of legitimation of global power are in place: 'North' global patriotism, a species of globalizing neo-Kantian version of 'cosmopolitanism', now in the making, entails citizen allegiance to 'war against terror,' the ever escalating sharp division between 'global' citizens and violent 'outlaw' human beings. A New Cold War seems now in the making, in which 'constitutional patriotism' (to evoke the phrase regime of Jurgen Habermas) will, yet again, strive to justify global reproduction of rightless peoples in service of 'our' common future.
The critical events disrupt the extant Westphalian notions of international legality, and visions of world order in many precipitate modes.
First, performative feats of global diplomacy now aim to produce a resilient consensus, not entirely ephemeral, providing 'justifications' for a global 'war' against 'terrorism'. For well over quarter century (since 1972, when the General Assembly placed 'terrorism' as a major concern for the United Nations system) states have, while rhetorically condemning terrorism, failed to produce an operative consensus on its definition[ 2]. Now, almost overnight conscientious objections to cooperative production of definition of international terrorism vanish before our own eyes; what we witness today is the emergence of a regime of instant customary law constructing the notion of ''mass international terrorism'' and a repertoire of 'appropriate' global responsiveness[ 3].
Second, unsurprisingly, a 'network' global society now generates 'network' international law. The 'war' is against networks of terror, comprising actors from many different nationalities, dispersed across many state territories and the 'space of flows'[ 4] that constitute a defining feature of globalisation. The global 'war' against terror is a war against de-territorialised agents and agencies, scarcely recognised as subjects, or even objects, of international law. It is also an emerging necrophilic network of 'anthraxic' terrorism, no matter how variously described as being 'endogenous' or 'exogenous'; a truly catastrophic incarnation of a 'world without borders'.
Third, all this entails a new kind of networking of orders of state sovereignties, where a large number of national, regional, and global agencies criss-cross to fashion unusual, even extraordinarily shifting, yet 'vital' strategic alliances. If we were to understand future histories of terrorism in relation to globalisation (especially in terms of accessibility of technologies of mass violence and 'militarisation of ethnicity')[ 5] and to the structural inequities of global trade and production, this is a 'war' that will most likely continue across generations, raising a whole menu of intractable international law and policy issues. I randomly name these here, fully aware that they invite ceaseless doctrinal/normative reformulation:
- How, and through what processes of production of legitimate international law normativity, is the notion of 'mass international terrorism' to be constructed? Is cross-border terrorism affecting two states an aspect of 'mass international terrorism'? If so, what regimes of general and specific duties arise, for the community of states, and for the solitary superpower prone to pursue unilateral police action? What duties ensue for the United Nations system?
- How do we rework/recontextualise the requirements of reasonableness and proportionality in respect to use of such force? Is 'collateral damage' in acts of self-defence an international tort, attracting duties of restitution, reparation and rehabilitation? In what ways may we refashion the current regime of silences in the ongoing work of the International Law Commission, directed to progressively recode the international law of principles governing State responsibility?
- When these networks of terror are concentrated within sovereign state territories, does the use of force against them make the state in turn a 'victim' state? Does then the 'victim' state, configured here as recipient of unilateral or collective military action, have a right to self-defence against 'police' action networks of global terrorism? What may be said to be the scope and nature of this right?
- When sites of terrorist acts are authoritatively located (in terms of direction and control, or siege social) in specified sovereign territory of a state, does the right of self-defence extend to selective military operation against specified 'targets' without involving consent of that state?
- What peaceful means and due process, by way of exhaustion of local remedies in combating acts of mass terrorism are owed to a state/peoples subjected to 'collective,' whether so 'thinly' or 'thickly' disguised, acts of self-defensive threat or use of force?
- Do, 'thinly' or 'thickly' disguised acts of collective self-defence extend to restructuring governance in states that may be said to help/harbour terror networks? If so, what principles of international law and jurisprudence of human rights may be said to arise?
- What duties under international humanitarian law arise for relief and rehabilitation for collective/mass exodus? May neighbouring states justly 'seal' their borders during the exercise of individual /collective self-defence?
- How may we develop non –discretionary norms in this respect that compel tasks of international development/rehabilitation assistance to human populations actually exposed to destruction of individual and collective orders of hurt/injury/mayhem to their actual/potential life projects?
- Is there a collective right of self-defence for 'victim' state, when terrorist attacks produce preponderant harm to a single state?
- In what situations may networks of terror be assimilated to the principles governing state responsibility? How may we construct the categories of 'helping' and 'harbouring', constructed in egalitarian, non-discriminatory modes, to inform such potentially periodic, even endemic now, enactments of 'good governance'?
- Does the law of war apply to 'war' against terrorism? How may we refashion the recently adopted Statute of International Criminal Court?
- How may we construct an international legal order that disengages reprisal against acts of 'mass international terrorism', from the potential for their redescription as constitutive of hegemonic, individual or collective, State/UN 'terrorism'? This, to my mind, is an issue of singular importance in any so-called, or 'real' combat against acts of 'mass international terrorism'[ 6].
These questions need, of course, to be strategically silenced, as is the case now, in the wake of actual episodes of 'mass international terrorism'. Yet any meaningful approach to renovation of the patterns of international legality, even of a global 'rule of law' summons close advertence to these, and related issues. Even though not constituting any estate of their acts of normative free choice, lawpersons of early 21st Christian Century thus stand endowed/ burdened with a wholly new programschrift. Much of what is left of the future of human rights[ 7] will depend on the 'daring' with which they address this agendum.
The emergent new network of international legality remains based on ontology of the (violated) Self and the (violating) Other. This initial dichotomy, however, turns out to be unseemly problematic. The problematic here stands furnished by the choice of ways (the privileging) of collective representations of the violating and the violated Self.
The World Trade Centre victims comprised diverse nationalities, including persons from the South, co-equally confronted with tragic mayhem. If we were to construct the violated self as a multifarious, multitudinous collective site of hurt, then no one State may non –dialogically collectively personify the violated self . There is room for deep contestation concerning the 'dialogical' processes that invested the nature and scope of military action against the Taliban regime in Afghanistan. I do not, for reasons of space, address this contestation here. Were one, however, to adopt a fully Habermasian position (or even somehow extend the Rawlsian notion of 'overlapping consensus' to inter –state spheres), there is, one needs to concede, space for discomforting argumentation either way.
If, however, we were to construct the violated self as marking instant global birthing of a deeply entrenched localised/ glocal community, in terms of mayhem in the World Trade Centre and in relation to the Pentagon, it may emerge as distinctively American, territoriality here constituting the 'essence' of representation. This remains deeply problematic. Nothing in principles attaching to territoriality, as we all know by now, authorises, manifestly collective self- representations, despite the surfeit of conceptual 'collective' conceits that mark the birth of the practices of global, or globalised, 'we-ness'.
The violating Other turns out to be a veritable cornucopia! We know, from experience of histories of non -state terrorism, that while some acts stand acknowledged with the power of authorship, most remain amorphously anonymous. In the latter situation, the violent Other has to be made legible through 'legitimate' acts of global social construction.
This legibility/legitimacy issue may be resolved, with a degree of moral authenticity that acknowledges the anonymous agency of the violating 'Other' network self or it may be resolved by the play or dramaturgy of hegemonic global power. This turns out to be an extremely complex and contradictory realm in situations that overwrite explicit denial by 'named' violating Other into acts of affirmation/ascription of collective authorship of mass international terrorism. The issue here, beyond the play of power, stands defined as a Derridean undecidable aporia[ 8], or Lyotardian differend (speaking to us of the incommensurability of discourses)[ 9] in the sense of ascription of authorship of a terrorist event/happening beyond the 'original' intention, no matter how one may situate the ethic of terrorism generally or in a specific circumstance of international mass terrorism.
The non- post/pre- post modernist state or civil society actors may think that the issue of identification is really not at all undecidable or not that undecidable. They think typically in the language of causation; put another way, the issue relates to ways of identification of the source of agency for acts of 'mass international terrorism', even in face of overt denial/contestation by the named agents. In responding to the actual events of terrorism, strategic decision makers need, of course, respond to what (in an Aristotelian sense) constitute 'immediate' rather than the 'efficient' cause, whereas 'justifications' for terrorist performances stress the efficient or the 'root' cause. Global rhetoric in the 'war' against mass international terrorism needs to straddle this dialectic of causation; 'walking with two legs' is, of course, the current rhetorical answer. That is, this 'war' is both immediately and futuristically both a 'war' against the immediate and structural causation of mass international terrorism, as revealed/exposed by the recent Davos/New York Global Forum discourse and the British Prime Minister's Tony Blair's current intrepid excursus in terms of acts of reading mass impoverishment in sub-Saharan Africa, and elsewhere in this unnamed/unnameable wide world, as a permanent invitation to the North to do at least some indeterminate something that prevents the translation/spillover of acts of contemporary global injustice into acts of mass terrorism directed against the North. This sort of, however instrumental, discourse has the merit of foregrounding the hitherto ineffectively recognised tasks of global justice, at the very least of the removal of the North hegemonic causes of structural global inequity.
Reverting to causation, the obstinate problem of moral mistake/error remains. Logically, we must concede that those who somehow 'justify' mass international terrorism and those who inveigh and act against it may also, perhaps equally, be variously morally mistaken in their grasp of causation. The contemporary networks of terror urging jihad against the United States, no matter how described, may (as much of the 'enlightened' global opinion thinks it is) be morally mistaken, at least on the ground that peoples' sufferings are not wholly as exhaustively caused by 'imperialism,' and that on a deeper analysis may as well be, immediately and efficiently, caused by their own various orders of the Corrupt Sovereign, no matter how aided and abetted by global imperialism[ 10].
By the same token, we ought to concede that the extraordinary mobilisation of the globalising middle classes throughout the world following September 11 stands currently contrived to avoid this logic. Official and politically constructed rhetoric labels, with extraordinary felicity, those that raise such logic as 'terrorists,' suggesting that the worship of state identified immediate causes is the only way to effectively combat network/hegemonic 'mass international terrorism.' This poses the issue: How may we dis-/re-engage ideological propagation of 'mass international terrorism' from/with actual authorship of acts of terrorism and ethically grounded global conduct/combat against these?
Given the fact, and the potential of, 'networks' of terror that decentralise and disengage hierarchies in execution, even planning, of such acts, the possibilities, even probabilities, that one may be mistaken even in the identification of immediate agents and executors of mass international terrorism obstinately re-emerge. The question has arisen, even within the epistemic communities of strategic decision-makers, as to how may bright lines in 'hot pursuit' be drawn in the identification of networks of terror. Having named the Taliban ruled Afghanistan a site of mass international terrorism, are they after months of massive and rather ferocious air strikes against its territory and peoples, entitled (and if so with what justifications?) to name territories of states B, C, D, (in the current situation, the Philippines, Malaysia, the Sudan, Iraq and now even Iran) and other states as zones of hostile 'counter terrorist' operations requiring massive, and when 'necessary' unilateral American military action? If the insignia/marker of source of 'terrorism' remains constituted by the manufacture, and potentiality of use of weapons of mass destruction, where, indeed, may one ethically device the North/South 'bright lines' in this sphere? Not wholly incidentally, we may ask whether these practices of attributing the domicile, whether of choice or necessity, to the South nations mask the emergence of new forms of neo-colonisation in a so-called globalising world.
This current discourse of State epistemic communities unfortunately amounts to a revival of the highly, and rightly, discredited 'domino theory' used to justify the American intervention in Vietnam War, with equally, perhaps more, disastrous impacts on the conduct of world politics. Put another way, is the whole South world, all over again, to be made into a battleground against mass terrorism, on a notion of causation that declines to draw sensible limits and boundaries in the 'war' against terrorism?
This newly-emergent global, network international law, at the end of the cruel current day, essentialises the identities of the violating and violated Self in a neo-Rawlsian discourse, in which societies of well-ordered peoples remain declared to be in permanent hostility against the 'outlaw' peoples[ 11]. To belong to the global society of well-ordered peoples, States have now a duty to 'stand up and be counted.' States that fail to do so remain inevitably designated as 'helping' and 'harbouring' terrorism and in turn thus invite redescription as being 'outlaw societies'.
However, 'helping' and 'harbouring' regimes stand in the contemporary discourse as ineluctably Eurocentrically demarcated; geophysically concentrated bases of international mass terrorism warrant full-scale acts of war; dispersed networks of support for terror (in the international finance and banking markets, for example) need to be handled with gentle, even gracious, persuasion. South State failures in 'curbing' terrorism invite belligerency; North state failures necessitate merely reflexive State policy; the former constitutes the realm of punishment, the latter the realm of discipline.
This inaugural discourse marks the production of new contexts for construction of politics of international cruelty, directed against 'causally'/casually identified agents and agencies of terror, and concerted regimes of 'global' response. Non–State epistemic communities (global solidary networks of human rights and New Social Movement communities) need to recover their initial innocence/incoherence in the wake of September 11, and its aftermath, if they are to remain in the 'business' (for, against all nostalgia, everything is now captured in the images of market/business!) of speaking to the possibilities of just human futures.
This 'network' conception of the new law of nations in the making incarnates a new version of sovereign equality of states; that value is posited as being under threat, and a common duty of all states is now said to emerge; a terrorist attack against a hegemonic superpower is represented as the very epitome of endangerment of the very basis of contemporary international law and even human 'civilisation'. New epistemologies, new 'final vocabularies', in the ironic Richard Rorty genre of pragmatic sense and sensibility[ 12], faute de mieux, are now in the making, in ways that subserve as well threaten the rolled-up values of the doctrine of sovereign equality of states, human rights, and much else besides.
This new order of concrete 'consensual' duties seems to make otiose distinctions between the First, Second (or what remains of it) and the Third World, the latter always up, as it were, for 'grabs' by the patterns of One - superpower hegemony[ 13]. The 'Third World' hermeneutic horizons of understanding of structural production of global terror need now to be structurally adjusted in terms of the preferred hegemonic Euroamerican construction.
The 'war against terrorism' is based on carefully cultivated/manufactured genesis amnesia: discourses concerning the immediate/ proximate, as well as final, causes of terrorism remain exposed to the instant indictment of being globally 'politically incorrect'. Distinctions are being reworked (already before September 11,at the dialogical site of the United Nations Durban Conference) between historic forms of 'mass international terrorism' (slavery, apartheid, racism, colonisation, and the Cold War) and its new forms.
The only history, on the presently constituted hegemonic notions of terrorism, relevant for global action is the history with a specific date: September 11, 2001. A new order of politics of global memory now stands swiftly inaugurated. But struggles for visions of a more egalitarian and cosmopolitan world order tend to resist, for weal or woe, this 'new historicism' in the construction of international mass terrorism.
And this genesis amnesia marks an incipient distinction between performances of 'mass international terrorism' and geopolitically localised transborder terrorism; the latter, at least for the time being, remain subject to differential constructions of international legality/illegality. The ontological robustness of Realpolitik is already mutating this distinction, for example, by the 'post'/co- Afghanistan extension of search and destroy missions in the Philippines or Malaysia[ 14]. This celebration of war against terrorism must be read as directed to make the North less vulnerable than the South from terrorism because histories and narratives of terrorism have deeper social and political origins than the scripts of September 11, and its aftermath, may suggest. The current 'war against terrorism' ill serves its stated purposes and pursuits when it reads into the attack on the World Trade Centre and the Pentagon the entire history of the origins of the post Second World War and post Cold War terrorism. There are indeed, other histories of 'terrorism' and 'counter terrorism'.
Contemporary forms of mobilisation of the newly installed discourse on international terrorism entails deference to forms of multiculturalisms that serve, primarily, the free flow of global capital. The first is symbolised in the archetypal figure of the British Prime Minister taking time off to read the Holy Koran, so as to authoritatively proclaim that an 'Islamic terrorist' constitutes an impious oxymoron! Few will disagree. But the delinking of ethnicities and civilisations from constructions of 'mass international terrorism' adds simultaneously value to logics and languages of multiculturalisms, pluralisms, contemporary human rights as well as internal state security programmes. The collective, though conflicted, interests of global capital in the 'war against global terrorism' require no elaboration, given its manifest power to disrupt contemporary economic globalisation processes.
This 'war' is then posited as historically necessary. But it is difficult even in the moment of current vicissitude to ignore the relation between forms of multiculturalism and global capitalism; Zizeck guides us to the insight that
The relationship between traditionalist imperial colonialism and
global capitalist self-colonisation is exactly the same as the relationship between Western cultural imperialism and multiculturalism.
Furthermore, he suggests that the multiculturalist respect for the Other's specificity is the very form of constructing one's superiority such that practices of multiculturalism may signify ' a disavowed, self-referential form of racism, a 'racism with a distance …'[ 15].
For these reasons, the diplomacy about this 'war' is indeed, agonising, and not just for its principal exponents: multiculturalism is the civic religion of globalisation and the war diplomacy (as the hapless Italian Prime Minister, vaunting Judeao-Christian traditions as more hospitable to 'democracy', 'rule of law,' and 'good governance' soon, unconvincingly, discovered) may not explicitly breach the conduct of Euroamerican terms of 'racism at distance'.
The Operation Infinite Justice/ Enduring Freedom is a complex, even extraordinary, register of representations. Extraordinary because it stands represented not as a war against people; nor as a war against a community of faith; it is rather a 'war' of Reformation, one in which the world's leading religious traditions have secularly to be interpreted as forbidding the use of terror to make a human rights or global justice statement. How is this to be rendered sensible to deeply pious peoples who represent postmodern 'secularists' as 'Satanic'? This poses profound problems for the construction of the preferred models of global multiculturalisms?
All this prepares the way for the enunciation of a new doctrine of 'just war' in the halcyon days of globalisation. Terrorist acts stand represented as a strike at the heart of globalisation, conceived as the 'free flow of space'; 'terrorism' disarrays the global civilisation brought about by post – Fordist flexible accumulation, whereby global capital creates and sustains wholly new patterns of international division of labour[ 16], and undermines the much vaunted relationship between development and freedom[ 17]. People, rightly or wrongly persuaded to think otherwise, remain denied of any authentic voice.
But the pre-modern (though for that reason no less crucial) discursive traditions of 'just' war, in its theological and secular political incarnations, embrace not only the pursuit of just objectives but also of just means to achieve these[ 18]. On a 'good faith' reading of it, the current discourse of the politics of intergovernmental desires seems, however uneasily, to straddle both the dimensions. Hi tech depersonalisation of the modes and means of delivery of mass violence/violation enact a divorce between just objectives and just means to pursue these. And of necessity the former must remain contested, even in this radically postmodern world, which at the end of the day, cruelly and unconscionably, entertains different and human rights negating measures/indicators of the respect for the value of human life in the North and the South.
However, concerted international action bears an ambivalent potential for contemporary economic globalisation.
To be sure, new forms of production of global social cooperation directed to combat global networks of criminality will emerge. Thus, for example, fiscal and monetary warfare against organised global criminality now assumes a welcome salience. But this current programschrift of global action stands structurally constrained by the crucial defining features of contemporary economic globalisation, 'predicated on increasing movement of people, ideas, capital, and objects within and between places'[ 19]. It is not clear, thus, how the anarchy of hyper-reality of international banking and financial markets may be re-regulated in an epoch of deregulation, in ways that distinguish between the 'legitimate' and 'terrorist' recourse to instant networks of international transactions, the Tom Wolfe Bonfire of Vanities genre, in stocks, bonds, and currencies[ 20].
Nor are in sight any prospects of effective regulation of world arms trade (nearly monopolised by the five permanent members of the Security Council) that eventually supplies the most crucial hardware for 'terrorism'. Attempts at regulation of bio warfare lie still congealed in the legal life histories of war veterans of the Agent Orange generation. Even today, North State constructed discourses concerning 'mass international terrorism' do not speak to the failed treaty regimes directed at prohibition of biological and chemical warfare. The re-nuclearisation of the world, signalled by the United States unilateral denunciation of the Anti-Ballistic Missile Treaty speaks with different voices, in this 'war' against international terrorism, to the scary prospect of nuclear self-help by non-State groups or formations.
Understanding globalisation in the twenty first century entails a grasp of the state as (in terms of Deleuze and Guattari) 'the nomadic war machine'[ 21]. It will then disserve its manifest intent by ignoring the linkages between organised and illicit arms traffic.
Further, the 'war against terrorism' depends a great deal on renovation of dominant world capitalist orders in terms of combating corruption and bribery at home and abroad. A world safe from 'mass international terrorism' will also signify a fashioning of world order that seriously attends to radical evil in defence deals, armaments traffic, mobilisation of narcotic drugs cartels, money laundering, dumping of toxic (including nuclear) products and wastes in the South, regardless of security, foreign policy, 'development', and 'good governance' objectives Manuel Castells describes acutely, though not in these precise terms, as 'the global criminal economy'[ 22]. It is as yet not clear how all this may be accomplished within the commanding heights of the theologies of neoliberalism.
Global coalition against 'mass international terrorism' makes historic sense only in terms of re-democratisation of Euroamerican ways of doing national politics. Notions of terrorism invite de-/ re- construction in terms of 'organised irresponsibility' and 'organised impunity' (to invoke Ulrich Beck's favourite phrase regime[ 23]) of the multifarious agents of contemporary globalisation led pre-eminently by the transnational corporations. Although not congenial to current discourse, those traumatised vectors of violated humanity from Bhopal to Ogoniland and beyond construct structuration of 'mass international terrorism' in ways profoundly different from significations currently under construction. Should they be altogether morally mistaken in this, the new pedagogies of freedom that this 'war' ushers in and symbolises ought be directed at least to explain to them the ethical error of their ways of thought.
The current carnivalistic production of the new,' network' international law discursivity brings us to a new stage of 'rhetoric and rage' in the production of contemporary international law[ 24].
It is 'new' at least in the sense that it summons distinctive possibilities of nascent articulations of the possibility of a theory of global justice. Unsurprisingly, contemporary globalisation has marginalised this discourse. Insofar as it has attended to it, the result (wholly unintended at least in the case of gentle and good John Rawls) has been the distinction between 'well-ordered societies' and its Other, the 'outlaw societies,' with its attendant ethical entailments[ 25] and the severely, and lean and mean, constructed Rawlsian 'duties of assistance' owed by the well-ordered peoples to the 'less' well-ordered ones[ 26].
This nascent discourse on global justice awaits Foucaldian labours of deconstruction. For example, it is not clear at all whether in the Second Original Position (necessary to construct a theory of justice for inter-state relations or more importantly a Rawlsian Law of Peoples) rational and reasonable contracting parties/ peoples may subscribe to the tenets of the current 'war' against 'mass international terrorism'. It is also not abundantly self-evident why co-nationals (in the current scenario Euroamerican peoples/ individual persons) may be said to owe morally altruistic duties of comprehensive assistance to non-nationals[ 27]. But the 'war' against terrorism is simply inconceivable, even ethically insensible, outside/without an articulation of approaches to global justice that impose, performances of morally altruistic duties flowing from co-nationals to non-national peoples. This, in turn, invites a whole new difficult discourse concerning 'morals by agreement'[ 28].
All this summons labours of reflexivity by, at the very least, the South human rights/social movements communities, not as yet in sight even in a bare outline. This, not the ontological presence of the expanding 'war' against terrorism, constitutes the current global misfortune.
Equally urgent, and related, remains the task of revisiting the distinction between misfortune and injustice, memorably enunciated by Judith Shklar[ 29].
The events of September 11 were not construed as a 'misfortune' but as 'injustice'. Proactive public policy is the response to situations of injustice; in contrast its translation into the languages of misfortune entails reactive public policy response. The range of collective public and social action, and universes of empathy and solidarity, expand and shrink, depending on the way bright lines are drawn between the two.
For example, the World Food Summit Declaration and Programme of Action, instituting a right to food security systems, promises concerted global action to halve starvation and malnutrition of 800 million people in the next fifteen years. This discourse does not quite characterise the situation of starving millions across the globe as one of injustice but perceives it as a misfortune to be addressed with 'all deliberate speed'. Much the same may be said of the Istanbul Summit declaration on the human right to shelter and housing. The United Nations Millennium Declaration, in a not dissimilar rhetoric, now proposes to reduce global human immiseration by 2015, measured by ' the proportion of the world's peoples whose income is less than a $1 a day,' those who 'suffer from hunger,' and those 'who are unable to reach, or afford, safe drinking water'[ 30].
These 'noble' rhetoric of 'progressive realisation' languages of the regimes of international economic, social, and cultural rights harbour cognate translations. Bhopal and Ogoni-land represent, in the dominant discourse, situations of misfortune, not injustice. Misfortunes (thus so far narrated) invite glacial pace of global diplomacy; injustice summons the 'war against terrorism'.
The issue is not whether the distinction wemust draw between injustice and misfortune is unavoidable in a non-ideal world ; the issue is one of acts and circumstances of justice of drawing the distinctions, the framing of the grammars of justice entailed in the allocation of critical events on to the one or the other register, the framing of geographies of injustice and misfortune.
If there exits at all the possibility of a subaltern voice, it lies in enunciation of Third World perspective on global justice, that helps us adjudge the ethics of the new discursivity of a global war against terrorism, currently named 'Operation Infinite Justice'/'Enduring Freedom'.
The vision of a world emancipated from catastrophic practices of politics of cruelty, acts of terror by state as well as non-state actors, indeed, symbolises a resurgent space for the politics of human hope. The task, however, lies in preventing it from becoming the Christian Twenty First century's humankind's early but perenduring worst hazard.
1.See, for these fecund notions, Julius Stone, Human Law and Human Justice (1996; Sydney, Maitland Publication; reprinted 1999, New Delhi, Universal Book Co. Pvt. Ltd).
2. See, for a recent review, Alex Obote- Odora, 'Defining International Terrorism,' 6 Murdoch University Electronic Journal of International Law (1999) < http://www.murdoch.edu.au/elaw/issues/v6n1/obote-odora61_text.html> visited February 9, 2002)
3. We must qualify the description 'instant customary law' with reference to two important conventions: The International Convention for the Suppression of Terrorist Bombings, 1997,which came into force on 23 May 2001 (with 25 parties, out of 58 signatories, the latter including the United States) and the 1999 Convention for the Suppression of Financing Terrorism (not yet in force.) In a sense, the current near universal agreement concerning the description of the attack on the Global City (New York) and on Pentagon and measures to suppress financial resources for terrorist networks mark the emergence of an 'incipiently' treaty-based custom.
4. See, for the elaboration of this notion. Manuel Castells, The Rise of Network Society 376-428 (1996;Oxford, Blackwell); and Michael Hardt and Antonio Negri, Empire (2000; Harvard, Harvard University Press.) The latter observe, with near prophetic insight, that 'what we are witnessing today is a process of the material constitution of the planetary order, the consolidation of the administrative machine, and the production of new hierarchies of command over global space' (p.19). They presciently reach the heart of the current situation when they describe the 'juridical concept' of the Empire as comprising the elucidation of ' a right that is affirmed in the construction of a new order that envelops the entire space of what it considers civilization, a boundless, universal space; and… a notion of right that encompasses all time within its ethical foundation. Empire exhausts historical time, suspends history, and summons the past and future within its own ethical order. In other words, Empire presents its order as permanent, eternal, and necessary' (p.11) See also Note 8, infra , for the 'mirror of production' of a single and singular juridical space.
5. A term that was first used by Donald Horowitz, Ethnic Groups in Conflict (1985: Berkeley, University of California Press.)
6.See Salman Rushdie, Note 11, infra.
7. See, generally, Upendra Baxi, The Future of Human Rights (2002; Delhi, Oxford University Press.) In the post- September 11 context, anti- terrorist laws and measures have materialized worldwide; indeed there seems to be a competitive scramble to perform 'better'. Already, in many parts of the South (but not only there) any dissent from or protest against their Draconian nature, hitherto unthinkable in peacetime, laws and measures that enforce the plenitude of jurisdiction of suspicion, is regarded as anti-national, being anti-global. Globalization of internal and transnational security, law and order, measures, invite labours of a 'global ethnography', a la the exemplary genre of Global Ethnography: Forces, Connections, and Imaginations in a Postmodern World (2000; Berkeley, University of California Press, Michael Burawoy et. al. Eds.)
The current global wave of anti-terrorism laws and measures include: long preventive/pre -trial detention, secret, summary or military tribunals, abbreviated due process, and severe mandatory sentences, including death penalty. The 'sinister overreach' of the 'anti terrorism state machines' has now reached a point when even the European Union is contemplating the Union wide arrest warrant – a 'mighty weapon… by no means confined to the terrorist emergency that has given it life' but one which will extend to inchoate 'crimes' such as 'racism', 'xenophobia' and 'swindling'; as proposed, this would also routinely extend to 'every crime carrying a sentence of twelve months and more': see Hugo Young, ' European Justice Demands the Glory of British Liberty,' The Guardian, February 5, 2002, p. 18.
In sum, it is this 'sinister overreach' of overall security response that poses a grave challenge to the hitherto not so fragile febrile vitality and resilience of human rights cultures worldwide. Mary Robinson, the United Nations High Commissioner for Human Rights, has highlighted the challenges thus:
No one should underestimate the difficulties of dealing with terrorism under the rule of law. As a citizen of Ireland, I certainly do not. The international human rights and humanitarian standards allow for flexibility in emergencies but the standards still apply and must be upheld….
States have painstakingly built up the international standards. In these difficult times for human rights we should be seeing a strong affirmation of these standards. If we do not, we are creating a dangerous precedent that will surely come to haunt us.
(I thank Professor Burns Weston for initially drawing my attention to this important statement.)
8. See the illuminating discussion on the 'political limits of logic and the promise of democracy' in Richard Beardsworth, Derrida & The Political 46-97(1996; London, Routledge.)
9. Jean Francois Lyotard, The Differend: Phrases in Dispute (1998, Minnepalois, University of Minnesota Press).
10. See, for example, Salman Rushdie, 'Anti-Americanism has Taken the World by Storm,' The Guardian, February 6, 2002, p.18.
11. John Rawls, The Law of Peoples (1999;Cambridge, Harvard University Press.) The current situation was not quite anticipated by that gifted philosopher but his insistence that peoples of well-ordered societies have a common obligation to use force, when persuasion fails, does provide justificatory framework for the Global Coalition Against 'mass international terrorism'.
12. Richard Rorty, Contingency, Irony, and Solidarity (1989; Cambridge, Cambridge University Press.)
13. See, Lea Brilmayer, American Hegemony: Political Morality in a One- Superpower World (1994; New Haven, Yale University Press), developing the thematic of a ' liberal theory of international hegemony' (p.176) in ways that may justify, with all attendant ethical/normative complexity and contradiction, 'hegemonic intervention' (pp.153-66.)
14.The operational means thus adopted revive some the questions we noted in Section 11 of this essay.
15. Slavoj Zizeck, The Ticklish Subject: the absent centre of political ontology 216 (1999; London, Verso.)
16.See, Malcolm Waters, Globalization 65-96 (1995;London, Routledge); Scott Lash and John Urry, The Economies of sign and Space (1994;London, Sage.)
17. Amartya Sen, Development as Freedom (1999;Oxford, Oxford University Press.)
18.' The traditional concept of just war involves the banalization of war and the celebration of it as an ethical instrument, both of which were ideas that modern political thought and international community of nation –states had resolutely refused. The two characteristics have reappeared in our postmodern world; on the one hand, war is reduced to police action, and on the other, the new power that can legitimately exercise ethical functions through war is sacarlized', Michel Hardt and Antonio Negri, Note 4, supra.
I do not address here the important issues of just means; this entails a close examination, than this essay warrants, of the international law established standards of reasonableness and proportionality of the United States exercise of military might in the current, still ongoing, operations. Nor can I address here the 'justificatory' strategies instrumental to the elaboration of the 'just means,' except by way of saying, bereft of closer analyses, that a staggeringly vast onus probandi lies, under the extant normative international law regime, heavily on the United States, and the 'allied,' still sustained, use of military force.
Post –factojustifications of massive use of force, those that invoke 'good governance (in terms of return to the 'rule of law,' 'democracy,' and a revival of the motto 'Women's' rights are Human Rights' need to be deciphered, an admittedly complex and contradictory exercise, in the context of the unmaking (during the very last phase of the Cold War) of contemporary Afghan polity and society. I do not essay this task here; nor do I address the current politics of global aid and assistance in terms of the globalized reconstruction of the constituent power, by which I signify the prowess of global economic constitutionalism, pitted against the 'million mutinies' that, for weal or woe, lie ahead, not just locally but globally. See, Antonio Negri, Insurgencies: Constituent Power and Modern State (1999; Minneapolis, University of Minnesota Press; Muarizia Boscagli, Trans.)
19. Eve Dorian Smith, ' Structural Inequalities in the Global System,' 34 Law & Society Rev. 809, at 810 (2000.)
20. See, David Harvey, The Condition of Postmodernity 161,293-95 (Oxford, Blackwell.) Zygmunt Bauman, in his Globalization: The Human Consequences pp. 66-67 (1998; Cambridge, Polity) recalls for us the estimate of Rene Passant, who calculates that 'purely speculative inter- currency transactions reach a total volume of $1,300 billion a day—fifty times greater than the volume of commercial exchanges and almost equal to the total of $1500 billion to which all the reserves of all the 'national banks' of the world amount… ' No state…can 'therefore resist for more than a few days the speculative pressures of the 'market'.
21. The State, as a 'diffuse and polymorphous war machine' is a ' nomos very different from the 'law,' which invests 'the war machine, as a nomad, the abolitionist dream and reality.' Giles Deleuze and Felix Guattari, A Thousand Plateaus: Capitalism and Schizophrenia at 360, 385 (1987; Minneapolis; The University of Minnesota Press.)
22. See his The End of Millennium, (1998; Oxford, Blackwell.) pp. 166-205.
23. Ulrich Beck, The Risk Society (1992; London, Sage.) See also, Upendra Baxi, Mass Torts, Multinational Enterprise Liability, and Private International Law 276 Receuil des Cours 305-423(2000; The Hague, Martinus Nijhoff.)
24. Karin Mickelson, ' Rhetoric and Rage: Third World Voices in International Law,' 16 Wisc. Int'l L.J. 353 (1998.)
25. See Note 12 supra at 112-120.
26. See, Charles Jones, Global Justice: Defending Cosmopolitanism (1999; Oxford, Oxford University Press); Nomos XL1: Global Justice (New York, New York University Press; Ian Shapiro & Lea Brilmayer eds.)
27. Of course, a more generous version of 'difference principle' at the level of global justice is possible: see, for example, Charles Beitz, Political Theory and International Relations (1979; Princeton, Princeton University Press) and Thomas W. Pogge, Realizing Rawls (1989,Ithaca, Cornell University Press.) I have articulated my difficulties with the genre of global justice theorizing in my presentation for Documenta11 (Vienna; March 2001), 'The Failure of Deliberative Democracy and Global Justice', in press, 2002.)
28. David Gauthier, Morals By Agreement (1986; Oxford, Oxford University Press.)
But see,Thomas Donaldson, The Ethics of International Business 155-163 (1989; Oxford, Oxford University Press.)
29. In her Stross Lecture, Faces of Injustice (1990; New Haven, Yale University Press.)