Hearts and Minds and Laws: Legal Compliance and Diplomatic Persuasion

Abstract

This Essay, written for the South Texas Law Review’s Ethics Symposium, considers the role of international legal argument in the war on terror and, in particular, in the attempts to justify the use of military force. It focuses on the relationship of credible legal arguments to legitimacy and reputation.

Part I looks at challenges posed by the evolution of military conflict and how this affects diplomacy. In particular, I argue that a reputation for honoring one’s treaty commitments and for legality, more generally, is an important part of fostering cooperation and undercutting the support of our adversaries. Moreover, in “fourth generation conflicts” such as this, a sense of “moral cohesion” is especially important. This is aided by a sense of the legality of one’s actions.

Part II focuses on how the Bush Administration oscillated between a hostility to international law and attempts to rewrite the rules of international law concerning the use of force. While the United States was able to foster a new understanding of international law that legitimized the invasion of Afghanistan, the invasion of Iraq was another matter. Regarding Iraq, the Bush Administration made arguments that undercut the very foundations of the law of the use of force. It acted in a way that maximized short-term flexibility but damaged the reputation and efficacy of the United States (at least into the medium-term) and may have weakened some of the foundational principles of international law.

Finally, Part III considers some of the effects of these legal policies on U.S. foreign policy beyond Iraq by considering the interplay or power, responsibility, and reputation.

Keywords: Reputation, Iraq, War, Terrorism, Torture, Diplomacy