Glen T. Martin
The Bureau of Investigative Journalism has calculated that the CIA drone wars in Pakistan have killed or crippled some 160 children in the past year alone. [i] The Guardian UK reported in May 2012 that “since 2004 between 2,464 and 3,145 people have been killed by US drone attacks in Pakistan, of whom up to 828 were civilians (535 under Obama) and 175 children.”[ii] These remotely operated death machines, in fact, are merely an extension of the US policy developed since the 1960s of targeted assassinations of suspected enemies worldwide.[iii] Nevertheless, there is also a huge difference that I want to discuss in this article.
During the Vietnam era, the Pentagon understood that the traditional concept of sovereign nations confronting one another as warriors (as had happened in WWII) was not an effective strategy to deal with guerrilla warfare conducted by people resisting foreign economic and military domination. The military had to be trained in special ops teams that subverted “enemy” plans, assassinated persons supporting guerrillas (i.e. civilians), or kidnapped and tortured people associated with the “enemy” to extract information that could lead to further kidnapping or assassinations. This initially covert and top secret practice (top secret because it was dirty and barbaric) has been transformed after 911 into official US policy, a policy that now strikes at the very heart of human civilization. The barbaric practice that once needed to be covered up as top-secret has now become official government policy, with tremendous implications for human life on this planet.
BACKGROUND. Since the time of great Roman jurists such as Cicero in the first century BCE, thoughtful human beings have understood that the rule of law lies at the heart of human civilization. For Cicero, law was the rule of reason embodied in society and essential to the capacity for justice as well as moral living.[iv] From that time to the present, philosophers and jurists have elaborated these principles to the point where they have become a central principle of civilization itself.
As the modern system of nation-states began to evolve out of the medieval feudal system through the 16th and 17th centuries, thinkers like Hugo Grotius began articulating the early principles of international law. A key step in the evolution of this system of sovereign nation-states as we know it today was first codified in the Peace of Westphalia after the 30 Years War in 1648. The purpose of this treaty was to clarify what was “lawful” to rulers within their own states and what are the “lawful” relations between nation-states. The concept of lawfulness was now understood as fundamental both to the internal integrity of nations and to their peaceful and stable external relationships.
During the 18th century Enlightenment, which included the rise of modern democratic theory, many philosophers understood that the rule of law at the heart of civilized living under a social contract pointed in two directions. The law protects persons from the arbitrary, dangerous, or criminal actions of other persons, and the law protects citizens against the arbitrary, dangerous, or criminal actions by those with governmental authority. The key to this protection from those in power was in the concept of due process—laws must govern police behavior, arrest, gathering evidence, treatment in custody, habeas corpus, trial procedures, forms and degrees of punishment, and post-punishment treatment of those convicted. Enforceable laws circumscribed by careful due process were the key to human freedom and dignity.
As Enlightenment philosopher Immanuel Kant expressed this, the “republican” rule of law provided the only legitimate moral framework for human relationships. Without the rule of enforceable law and due process of law, there is only “barbarism and savagery,” which Kant also called the state of “war.”[v] To be in the condition of war, Kant argued, was to be in an immoral condition, and civilized human beings are morally obligated to leave that condition as soon as possible by establishing “republican” government and due process of law over themselves. Nevertheless, the system of warring sovereign nation-states continued to exist regardless of Kant’s declaration that the system itself is immoral since there is no effective law or due process of law above the nations.
By the mid-19th century, with the advance of weapons, transportation, and destructiveness of war, thoughtful leaders began to develop the set of agreements that we know today as modern international law. This process accelerated after the First World War with the Hague and Geneva Conventions and again after the Second World War with the founding of the United Nations in 1945. The UN today is the central custodian of a codified system of international law for the world.
The UN Charter states that its purpose is to “save succeeding generations from the scourge of war,” to “affirm faith in fundamental human rights,” to “practice tolerance and live together in peace with one another as good neighbors,” and to affirm faith “in the equal rights of men and women and of nations large and small.” At a UN press conference in September 2012, high UN officials repeated themes very similar to those of Cicero, declaring that the rule of law was essential to justice on Earth and fundamental to “peace and security, development and human rights.”[vi]
Up to 1945, international law had been developed to govern the relations between sovereign nation-states. However, the Nuremberg Trials after WWII brought a new understanding to the concept of the rule of law in the international sphere: individuals could also be held guilty of crimes of aggression, war crimes, and crimes against humanity. It was not an excuse that Nazi generals and military leaders were obeying the laws and commands of their sovereign nation, they could be held responsible for these crimes as individuals. These “Nuremberg Principles” became international law when they were adopted by the UN International Law Commission in 1950. A very important conceptual step forward took place then that has become further institutionalized with the development of the International Criminal Court (ICC), which opened its doors in The Hague in 2002.
Today, this court is based on the agreement of some 121 nations (not including the US) who have signed the Rome Statute of the ICC. The Rome Statute gives elaborate due process rules for prosecution of those charged under the Statute: rules of evidence, of apprehension, of the rights of suspects, etc. The statue recognizes, what all civilized peoples recognize, that the rule of law is the basis for human civilization and that rigorously enforced due process protections are all that separate justice and decency from barbarism and savagery.
911 AS TURNING POINT. Those high officials in the US government who formulated the Project for the New American Century Document[vii] in the late 1990s envisioned the 21st Century as “the American Century” with military domination of the entire world by the US. Yet the document stated that the American people would not go along with the “sacrifice” and immense military expansion this required unless they experienced “a new Pearl Harbor,” some attack on American soil so devastating that people would be mobilized to support perpetual war and militarism. This most conveniently happened in September 2001. Civil liberties were soon curtailed and habeas corpus eliminated even for US citizens if the government suspected they were associated with “terrorism.” Universal surveillance was soon implemented, and a perpetual war on terror announced that required military intervention anywhere in the world at any time indefinitely into the future.
US policy has been transformed, therefore, from a top secret clandestine policy of black op assassination, kidnapping, torture, and murder developed in the 1960s to an official, publically announced war on human civilization and the rule of law. Due process of law has been abandoned for the barbarity of arbitrarily killing anyone suspected of being the “enemy.” Unmanned drones, killing people around the world from control points in Nevada or Florida, are merely a symbol of this barbarity, but it is also there in President Obama’s policy of “targeted assassinations,” and in his policy of never ending worldwide “war” that he adopted from his predecessor George W. Bush.
The very concept of due process of law has been abandoned by the US government. The fact that American citizens are not exempted is merely a consequence of the barbaric logic of this policy. For “war” is precisely the opposite of the rule of law. It dispenses with human rights, human dignity, and human protection under the law to simply kill and destroy whomever is perceived as opposing its power and domination. It is not only the continuing threat of nuclear holocaust that is facing the world due to the barbarism of sovereign nation-states, and it is not only impending climate collapse endangering our future, but the very progress of civilization is threatened by the US policy of perpetual, limitless war.
In his 2006 book Globalistan: How the Globalized World Is Dissolving Into Liquid War, internationally known journalist Pepe Escobar details the worldwide devastation caused by the US in its attempt to enforce and secure its global economic and military empire. Not only are whole populations deprived of due process of law by US supported dictators, and not only are whole populations such as the Palestinians subjected to genocidal conditions by the US and its ally Israel, but the resistance efforts of the starving and hungry peoples of super-exploited countries must be crushed by the US training of military oppressors in their respective countries or by direct drone or special forces assassinations by the US military itself. The world is descending into “liquid war” by these policies, Escobar repeatedly shows, and the due process rule of democratic law is entirely gone from our conceptual framework except as Orwellian double-speak.
War, the barbaric force that the tradition of international law tried to regulate, limit, and abolish through 150 years of effort, has now become the norm of US foreign policy. The very heart of civilization that focused on the rule of law since ancient times is scorned by the Pentagon and Washington, DC. It isn’t just that the US has perhaps the largest and most brutal empire in history, replacing the Spanish, French, Portuguese, Dutch, German, Russian, and British empires, but that the new empire is qualitatively different, for it abjures civilization itself. It has entirely abolished the concepts of rule of law and the due process of law as the foundation for civilized human relationships.
HOW TO RECLAIM THE FUTURE. All these empires have one thing in common. They were all products of the system of sovereign nation-states first codified in the Peace of Westphalia in 1648. The thinkers since that time, including Spinoza, Hobbes, Locke, Kant, and Hegel, all recognized that this was a “war system” in that these nations (by definition as “sovereign”) recognized no enforceable laws above themselves. This war system was simultaneously the source of empires, since without the effective rule of law above nations those that are more powerful will inevitably seek to extend their power as widely as possible and secure through military force the resources and cheap labor of weaker nations.
The development of modern international law attempted to limit, regulate, and civilize this war system, but ultimately this cannot be done as long as the concept of “sovereign” state is embraced. The attempt to hold individuals responsible through the Nuremberg Convention and recently the ICC was a step forward in that it recognized the need for the due process of law for all persons both within and without nation-state legal systems. Nevertheless, the ICC remains merely a treaty of some 121 sovereign nations that can withdraw or fail to honor their pledge any time their national interests demand this.
The concept of the rule of democratically legislated law and the due process of law must be reclaimed and institutionalized as the foundations of human civilization. This cannot be successfully done as long as there exists an internal contradiction between the concept of the rule of law and the system of sovereign nation-states. You cannot impose effective law or due process on a nation conceived to be sovereign. Even Costa Rica, which abolished its military long ago, remains a rogue state since it recognizes only those laws above itself that it voluntarily agrees with. Real law is never a voluntary agreement but a required framework binding on all citizens.
Our only option, if we want to preserve and promote civilization on this planet, is to focus on the Constitution for the Federation of Earth.[viii] This document unites the nations of the Earth under a global democratic constitution in the same way that the states of the United States were united under a federal constitution that preserves their relative independence while making them subject to binding federal constitutional law. The trajectory of civilization from ancient times to the present in terms of the rule of law and due process of law culminates in the concept of democratic law for all humanity. The Earth Constitution, although available for immediate ratification under its Article 17, can and should also function as a regulative ideal for human activism, thought, and aspirations. As a regulative ideal it serves as a coherent and consistent vision of a just, equitable, and sustainable world system established and democratically maintained under the concepts of the rule of law and due process of law for all persons on Earth.
The most effective way to oppose the empire and stand for justice and integrity is not through anarchic non-violent resistance alone, nor is it through guerrilla warfare or violent revolution. Ideas are ultimately more powerful than weapons. We must envision the rule of law and due process of law as ideals for all persons and nations. This cannot be done for the system of sovereign nations as it now stands since there is an internal contradiction between the concept of a sovereign nation and the concept of the democratic due process of law.
A coherent vision of the rule of law and due process of law, that is, of a civilized world system, requires the concept of a Constitution for the Federation of Earth. The US-led global system of liquid terror, abjuring the rule of law worldwide, can only be effectively stopped through conceptual clarity—by seeing barbarism for what it is and by seeing the heart of civilization for what it is. The Earth Constitution must be studied, promoted, and raised up as a regulative ideal symbolizing the very heart of the human civilizational project. Only an emerging Earth Federation can abolish war forever from the Earth, just as only an emerging Earth Federation can protect our planetary environment for future generations. For the Earth Constitution symbolizes the very opposite of the terror drones and their perpetual liquid war. It symbolizes the due process rule of law for every person on Earth, which is the key to a life of justice, dignity, and freedom for all—the actualization of our human civilizational project.
(Glen T. Martin is Professor of Philosophy at Radford University and President of the World Constitution and Parliament Association (WCPA).
[iii] Nelson-Pallmeyer (1989). War Against the Poor: Low-intensity Conflict and the Christian Faith. Orbis Books, pp. 1-14.
[iv] Cicero (1999). On the Commonwealth and On the Laws. J.E.G. Zetzel, ed. Cambridge University Press, pp.113 & 126.
[v] Perpetual Peace (1795).