Morte D'Authority in International Law

Abstract

This paper examines two decisions related to international law and the ‘war on terror’ – the Khadr case in the Supreme Court of Canada and the Abbasi case in the English Court of Appeal. Both judgments raise the question of a government’s obligations toward its own citizens held by another nation as ‘enemy combatants’, in the process posing problems associated with the three-sided claims of state, citizen, and foreign sovereign. These cases addressing foreign citizens held by the U.S. military have been seen by international lawyers as steps on the way to bringing the authority of law to a lawless process; however, it is the theory of this paper that in testing international law’s authority they expose not so much its potential as its congenital defects and inevitable decline. The two legal triangles – Canada-Khadr-United States and United Kingdom-Abbasi-United States – are juxtaposed with several episodes from Thomas Malory’s Morte D’Arthur that dramatize English literature’s most renowned love triangle. This 15th century novel chronicles the decline of King Arthur’s court at Camelot several centuries previously, and in the process explores the historic search for legal authority. The first episode, which is juxtaposed with the Khadr judgment, is the scene in which the adulterous liaison between Lancelot, the King’s most trusted knight, and Guinevere the queen, is consummated after a long period of courtly love. The second episode, which is paired with the Abbasi ruling, describes a trial by battle in which Lancelot, as champion for Guinevere, vanquishes a knight who accused the queen of murder at a royal banquet. These stories and cases demonstrate, respectively, the perils of interpretation (there is a question as to who exactly suffered injury under international law demands and who exactly was found in the sovereign’s bed), and the perils of adjudication (guilt or innocence in both sets of narratives is determined in a manner that questions the institutions by which judgment is rendered). All of this transpires in an atmosphere of weak legal authority such as that which prevails late in the reign of international law.