08 May On death and hegemony

I don’t understand international law. I never have. But what has happened in Pakistan has been incredibly difficult to understand. I keep replacing actors – Bush for Osama, CAR for Pakistan, Navy Seals with mercenaries – over and over, i keep hoping to understand.

It never seems acceptable, but today, i learned a few things:

UN Charter Article 24: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

But…

UN Charter 54: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

So why did we get to just go and kill him?

The real question is whether Bin Laden can be considered as an enemy combatant. Attorney General Erik Holder (also known as The President’s Lawyer) claims that it is lawful to “”target an enemy commander in the field,” just as it is to kill any enemy combatant. Obama also used DoD Directive 5210.56 to justify the killing, as it states:

E2.1.2.3.7. Escape. When deadly force has been specifically authorized by the Heads of the DoD Components and reasonably appears to be necessary to prevent the escape of a prisoner, provided there is probable cause to believe that such person:

Has committed or attempted to commit one of the serious offenses referred to in subparagraphs E2.1.2.3.2. through E2.1.2.3.5

Which are:

E2.1.2.3.2. Assets Involving National Security. When deadly force reasonably appears necessary to prevent the actual theft or sabotage of assets vital to national security. DoD assets shall be specifically designated as “vital to national security” only when their loss, damage, or compromise would seriously jeopardize the fulfillment of a national defense mission. Examples include nuclear weapons; nuclear command, control, and communications facilities; and designated restricted areas containing strategic operational assets, sensitive codes, or special access programs.
E2.1.2.3.3. Assets Not Involving National Security But Inherently Dangerous To Others. When deadly force reasonably appears to be necessary to prevent the actual theft or sabotage of resources, such as operable weapons or ammunition, that are inherently dangerous to others; i.e., assets that, in the hands of an unauthorized individual, present a substantial potential danger of death or serious bodily harm to others. Examples include high-risk portable and lethal missiles, rockets, arms,
ammunition, explosives, chemical agents, and special nuclear material.
E2.1.2.3.4. Serious Offenses Against Persons. When deadly force
reasonably appears necessary to prevent the commission of a serious crime that involves imminent danger of death or serious bodily harm (for example, setting fire to an inhabited
dwelling or sniping), including the defense of other persons, where deadly force is directed against the person threatening to commit the crime. Examples include murder, armed robbery, and aggravated assault.
E2.1.2.3.5. Protect Public Health or Safety. When deadly force
reasonably appears to be necessary to prevent the destruction of public utilities or similar critical infrastructure vital to public health or safety, the damage to which, would create an imminent danger of death or serious bodily harm.

I’m still confused….I see nothing in this document that keeps being trotted out as grounds for the killing of Osama that actually supports and legitimates the action. Apparently, the question comes down to one of self-defense. The U.S. is claiming self-defense in the killing of Osama.

The difficulty, then, comes down to sovereignty. Is it a usurpation of Pakistani sovereignty? Apparently not, since Pakistan has been deemed incapable or unwilling to take action, e.g., arrest and extradite Osama – in which case, all bets are off.

That Osama was found with his family just down the road from a military base 30 miles outside of Islamabad was, in legal jargonese, enough to go slamming into his house at 3 a.m. shooting.

I suppose the question, then, is if “Justice has been done” as the U.S. president declared. I suppose it matters what you think “justice” is. I took a course on justice from Adam Moore. The only thing i remember is us arguing about utilitarianism and slavery – in the end, he declared from his corner, “Well, then they would say that slavery is okay so long as the slaves were treated well.” I lost all respect for Analytical Philosophy in that moment and have nothing of worth to show for Justice, as a philosophical frame.

But it’s unfair to blame a single class (and certainly not the professor!) for my disgust at the word Justice. So what is it? Maybe not today…

But after chatting for an hour with a law student, i realized that really, the U.S. has created a world in which hegemony is not simply an accident of the gentle norms of “common sense.” Gramsci’s arguments begin to fade:

These two levels correspond on the one hand to the function of “hegemony” which the dominant group exercises throughout society and on the other hand to that of “direct domination” or command exercised through the State and “judicial” government. The functions in question are precisely organisational and connective. The intellectuals are the dominant group’s “deputies” exercising the subaltern functions of social hegemony and political government.

The ‘spontaneous’ consent given by the great masses of the population to the general direction imposed on social life by the dominant fundamental group [ie, through their intellectuals who act as their agents or deputies]; this consent is ‘historically’ caused by the prestige (and consequent confidence) which the dominant group enjoys because of its position and function in the world of production

The apparatus of the state coercive power which ‘legally’ enforces discipline on those groups who do not ‘consent’ either actively or passively. This apparatus is, however, constituted for the whole of society in anticipation of moments of crisis of command and direction when spontaneous consent has failed.

What do George W. Bush’s objectives of the War on Terror do to this rather benign sort of hegemony? Have a look for yourself at the National Strategy for Combating Terrorism Strategy 2/03.