Faculty of Education, Social Sciences and Law

School of Politics and International Studies

ESRC Award - Law, War and the State of the American Exception

10 November 2008 |

ESRC Award - Law, War and the State of the American Exception

Dr Jason Ralph has been awarded an ESRC grant of £97,416.93 for the Research Project: Law, War and the State of the American Exception.

The central question driving this research is whether the post-9/11 exception has now become the norm in US security policy and what this means for English School (ES) understandings of war as an institution of intentaional society.

The weight of great expectations is bearing down on US president-elect Barack Obama while the world waits anxiously to see what direction America’s foreign policy will take next.

Did the post-9/11 'war on terror' against Al Qaeda usher in a new world era of warfare and human rights? Dr Jason Ralph, a senior lecturer in the School of Politics and International Studies, is investigating whether methods once regarded as illegal under international law are now considered the norm in US security policy – from preemptive wars to indefinite detention and torture of terrorist suspects.

"The question is, will Obama seek to correct the balance in a bid to restore the shine to America’s reputation and promote international law, or will he argue that the normal rules should remain suspended for the sake of American national security?"

Throughout 2009, Dr Ralph will be conducting a detailed analysis of the US's emerging foreign policy under Obama in relation to the 'war on terror'; the use of armed force, the Geneva Convention, Guantanamo prison, and the International Criminal Court. Thanks to the £80,000 ESRC grant, his research will also look at how international laws of warfare have evolved through history and been applied to terrorism in the modern age.

To gain access to some of the key policymakers and experts from Capitol Hill – from both the Bush and Obama administrations – he will spend time at the University of Baltimore’s Center for International Comparative Law.

His research will consider whether the ideas of the controversial German philosopher Carl Schmitt, who developed his theory of the‘state of exception’ in the 1920s, still have any relevance today.

Schmitt believed that the democratic governments of powerful nations such as the US, Britain and Germany contain an authoritarian core, and that their leaders will always act in illiberal ways to protect national interests when confronted with an exceptional security threat – by breaking international laws or committing human rights abuses, if necessary.

"No one is interested in Schmitt's support of the Nazi regime, but there is renewed interest in his writings on politics and international law, and some people argue that Bush's 'war on terror' after 2001 proved that Schmitt was right," explains Dr Ralph. "Bush tried to revise the international laws on pre-emptive attacks by invading Iraq without clear evidence of an imminent threat, and the US has so far refused to support the International Criminal Court or pass legislation to ban the CIA from committing torture.

"What I'm asking is, will 'exceptionalist thinking' remain influential in America, or will Obama now try to forge a new path by adopting an approach that is more respectful of international laws, and be willing to abide by them?"

He is looking for evidence in American practice that might support the English School theory of international relations; that a global 'society of states' exists and regulates international laws of warfare and human rights. For example, in 2006 the US Supreme Court ruled that President Bush had overstepped his executive authority and violated the Geneva Convention and US law by establishing military commissions for Guantanamo detainees.

Although Obama was elected on a platform of change, Dr Ralph says he will be faced with difficult choices over how to respond to terrorism in Afghanistan, Pakistan, and Iraq.

"We have international laws that regulate relations between states, but how do you deal with terrorist networks that are not acting on behalf of states? But I think he will be guided by international opinion, he’s very conscious of that.

"Obama has already been attacked by both the political left and right over his decision to close down Guantanamo, because it’s far from clear what he plans to do with the 250 or so remaining detainees. It would be unthinkable to release them onto the streets of America if they pose a danger, but they may never be able to stand trial in US courts if evidence has been gained through torture.

Moral considerations also forbid sending individuals back to their home countries if they are likely to come to harm,” he adds. “It’s a legal minefield and there is no obvious way forward."

Some believe that Obama should establish a ‘national security court’ to deal with them as 'enemy combatants', which would require a lesser burden of proof. "What's interesting is that in the past Obama has spoken out in favour of military tribunals, whereas the UK's policy is to prosecute terrorists through the criminal court, such as the two men who crashed a car into Glasgow Airport."

Obama will be sworn in as the 44th president of the United States on 20 January. “He has more or less committed to a drawdown of troops from Iraq, but I believe we’re going to see an escalation of US troops in Afghanistan, which is seen as the centre of the war against Al Qaeda." Dr Ralph also expects to see a continuation of US missile strikes against insurgents in the borderlands of Pakistan, despite Islamabad’s protests.

"Obama is working on a new strategy for the region that sees Pakistan as part of the solution, and he has said the US will work with nations around the world to root out and destroy terrorist networks."

Dr Ralph published a book last year called Defending the Society of States: Why America opposes the International Criminal Court and its vision of world society (Oxford University Press).

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