Law without Nations?: Why Constitutional Government Requires Sovereign States

Chapter 1
INTRODUCTION: BY OUR OWN LIGHTS
FOR SOME MONTHS following the terror attacks of September 11, 2001, pundits affirmed that the event had irrevocably changed America and the world. Subsequent events proved that changes in America and changes in the world were far from symmetrical. Perhaps there was not even that much change.
Nations, like individuals, may respond in new ways when confronted with new challenges. But even new responses are shaped by old habits of thought and established patterns of conduct. American political ideals have often differed from those embraced by people in western Europe. Differing responses to the challenge of international terrorism simply highlighted the underlying divergence.
In the immediate aftermath of September 11, "the world"--speaking through the United Nations (UN)--condemned the attacks. But what could the "international community" do to catch the perpetrators or to ensure that such attacks did not recur? The "international community" offered condolences. America then had to summon its own resources to defend itself.
Working with Afghan resistance forces, the United States mounted a counterattack on the Taliban regime in Afghanistan, a principal host for the terror network that perpetrated the September 11 attacks. The Taliban regime was overthrown in less than four months. Hundreds of Islamist terrorists were captured and imprisoned. But the United States provided virtually all the outside military force to accomplish this result.
For most Americans, the experience offered a clear lesson: The nation must depend, in the end, on its own exertions for its own security. At home, police warn crime victims not to take the law into their own hands. The world as a whole, however, has no international policing capacity. When attacked, a nation must be able to take the law into its own hands because self-defense is the most basic right.
Most Europeans drew quite different conclusions. In the months after the Afghan war, the United States was scolded by the International Red Cross, by the UN Commissioner for Human Rights, and by many European leaders for refusing to accord prisoner of war status to captured Afghan terrorists. Their view was that even a justified war must be fought under international supervision, on terms acceptable to international authorities.
And on second thought, much of the world doubted that terror attacks could actually justify military responses. In April 2002, after hundreds of Israeli civilians had been killed by terrorist attacks on civilians in Israeli cities, the government of Israel sent troops into towns on the West Bank to seize terrorist leaders and dismantle the terrorist infrastructure. The United Nations issued fierce denunciations of Israeli "aggression" without making any reference to the terrorist attacks which provoked it. European leaders spoke of "massacres" and "war crimes"--on the evident assumption that even a conscript army of a democratic nation was quite capable of committing mass atrocities, unless constrained by international authority. The correct response to terror attacks, Europeans insisted, was to work with international authorities to defuse tensions and satisfy the grievances which provoke people into committing terrorist acts.
A year later, American and British troops invaded Iraq and overthrew the government of Saddam Hussein. The UN Security Council had demanded that Saddam's government demonstrate that it had dismantled all its programs for producing weapons of mass destruction. The same demand had been repeatedly reaffirmed since 1991, when it had been included in the truce terms ending that earlier Gulf War. In the previous war, a UN-authorized, American-led force had liberated Kuwait from Iraqi conquest but left Saddam in power in Iraq itself. By the spring of 2003, there was general agreement on the Security Council that Saddam was still not complying with disarmament obligations imposed in 1991. It was also widely understood that Saddam's government had developed friendly relations with international terror networks.