‘Wars on Terror’ and Vicarious Hegemons: The Uk, International Law, and the Northern Ireland Conflict

Abstract

The hegemonic position of the United States, and its implication for international law, are rapidly emerging as sites of intense scholarly interest.1It is a truism that the fall of the Berlin wall has been followed by a period of unprecedented American predominance in the military, economic, and political spheres. Replacing the bi-polar certainties of the Cold War is a world in flux, dominated, to a significant extent, by one remaining superpower, or, in the words of the former French Foreign Minister, Hubert Vedrine, by a ‘hyperpower’.2Some though, have emphasised the continuing importance of other loci of (lesser) power in a ‘uni-multipolar’ world.3That this domination posed critical questions for international law was obvious well before the 9/11 atrocities, as the debate over NATO's use of force in Kosovo illustrated. Since the invasions of Afghanistan and Iraq, and with the global ‘war on terror’ reaching into ever-increasing spheres, the debate has intensified significantly.

Transitional justice: (re)conceptualising the field

“…In many respects the international law debate mirrors that in domestic law: international law is likely to accommodate itself to the exercise of hegemonic power (Campbell, 2005), and offers powerful legitimating potential, but some possibility for lawbased challenge is likely to be present (Krisch, 2005), and international law is always likely to retain some 'pull', even on powerful states (Byers, 2003). In many respects the international law debate mirrors that in domestic law: international law is likely to accommodate itself to the exercise of hegemonic power (Campbell, 2005), and offers powerful legitimating potential, but some possibility for lawbased challenge is likely to be present (Krisch, 2005), and international law is always likely to retain some 'pull', even on powerful states (Byers, 2003).…”

“…In the contemporary uni-multipolar world, this begs the question adverted to earlier, of the relationship between the world’s sole remaining superpower, international law, and transitional justice, with Iraq as the prime site of inquiry. In many respects the international law debate mirrors that in domestic law: international law is likely to accommodate itself to the exercise of hegemonic power (Campbell, 2005), and offers powerful legitimating potential, but some possibility for law-based challenge is likely to be present (Krisch, 2005), and international law is always likely to retain some ‘pull’, even on powerful states (Byers, 2003). This pull may be particularly strong in transitional societies where a context of conflict can no longer be invoked to justify departure from international standards.…”

The No-Gaps Approach to Parallel Application in the Context of the War on Terror

“…As other commentators including Campbell have noted the "bite" that international law has is more likely to increase the more the state in conflict moves away from the eruptive moment of violence. 66 The twilight legal existence of detainees being held by the United States in Guantanamo Bay Cuba is potent evidence of the US position that it has the unilateral capacity to decide whether the laws of war apply to detainees under its control, notwithstanding a general consensus by other states of the applicability of these norms. 67 Its capacity to hold this position on the non-reviewability of detention has been significantly undercut by the jurisprudence of its own Courts, specifically the Supreme Court majority ruling in the Hamdan case.…”