Visiting Distinguished Professor, Global Studies, University of California, Santa Barbara and Milbank Professor of International Law Emeritus, Princeton University. TFF associate
March 12, 2003
There is little doubt that the White House seems resolved to wage war against Iraq, however weak its legal case, and despite the withering away of support even at home. It is probably late in the day to stop this militarist juggernaught, but it is not too late to try. There are several constructive steps that could still be taken at this stage. A UN General Assembly resolution, relying on its residual authority to uphold world peace, could convene an emergency session of the General Assembly to oppose recourse to war against Iraq, as well as a reaffirmation of the Charter rules governing the use of force. It would also be significant if Congress could be persuaded to reconsider its premature authorization of the use of force by the President, hold high profile public hearings on the legal and political case for and against war, debate, ideally, pass a restrictive resolution relating to an Iraq War, and thereby finally fulfill its own constitutionally responsibilities, virtually forfeited by its behavior up to this point. Of course, this is too much to hope for.
Beyond backing such institutional steps, the expanding peace movement should continue to hold demonstrations in which speakers develop the argument against war, including its international law elements. It would also be helpful to convene a panel of moral authority figures and jurists to issue a report or white paper on the relevance of international law and the just war doctrine to the realities of the 21st century. As citizens, we have the opportunity and responsibility to act as if it is our duty to challenge this illegal and dangerous war fever that grips the leadership of this country. International law remains the best guide we have for drawing a line between acceptable and unacceptable behavior in world politics, especially in the war/peace setting. The rest of the world, as well as the American people, deserve a US Government that respects this dividing line. It is regrettable, but true that such respect will only be forthcoming if the grassroots pressure from here and abroad grow strong enough. Our Government shows no signs of being guided in its foreign policy by any authority other than its own imperial dreams.
Among the more serious losses resulting from the September 11 attacks has been the subversion of international law as a source of guidance and limitation in the foreign policy of leading sovereign states, and especially the United States. Of course, this process of erosion preceded the attacks, and even started well before George W. Bush’s arrival in Washington. The Gulf War was fought with only a pro forma mandate from the UN Security Council, with the operational control of the ends and means of the war being run from the White House and Pentagon. Such disregard of the proper UN role in collective security was dramatically evident in the way the Clinton Administration conducted its diplomacy prior to the 1999 NATO War over Kosovo, seemingly rejecting peaceful settlement options and bypassing the UN on its way to war. But the presidency of George W. Bush has greatly accelerated this process by its wider rejection of international legal authority. Its arrogant repudiation of such vital international agreements as the ABM Treaty and its rejection of the Kyoto Protocol seeking with due urgency to regulate the emission of greenhouse gasses are indicative of this repudiation of multilateral approaches to global problems.
What September 11 did was to extend this dangerous form of American lawlessness to the most sensitive area of all -war making – uses of force in disregard of sovereign rights, and intervention in the internal affairs of foreign countries.
Such a pattern of irresponsible, and in the end, self-destructive behavior by the US Government, is especially unfortunate because the unprecedented al Qaeda challenge did require adjustments in the way in which the international rules governing the use of force were applied. International law has evolved throughout modern times to meet the common goals of sovereign states seeking to protect their vital interests in the face of changing circumstances. World War II ended with the historic understanding that recourse to war between states could no longer be treated as a matter of national discretion, but must be regulated to the extent possible through rules administered by international institutions. The basic legal framework was embodied in the UN Charter, a multilateral treaty largely crafted by American diplomats and legal advisors. Its essential feature was to entrust the Security Council with administering a prohibition of recourse to international force (Article 2(4)) by states except in circumstances of self-defense, which itself was restricted to responses to a “prior armed attack” (Article 51), and only then until the Security Council had the chance to review the claim.
It is true that international lawyers have through decades argued about the interpretation of these basic rules of restraint, but these Charter guidelines have generally been well enough understood to enable a clear line to be drawn between permissible and impermissible uses of forces in most circumstances. A measure of flexibility existed, giving the UN legal authority to authorize non-defensive uses of force so as to uphold global peace and security, and some would add in light of recent practice, to protect vulnerable populations from severe abuses of human rights, especially ethnic cleansing and genocide. It is especially unfortunate that influential journalists such as Thomas Friedman pour their amoral scorn on European opposition to the Iraq War, flippantly claiming that it is “Euro-whining” to insist on law and morality as restraints on Washington’s warmaking, what Friedman calls “deeply unserious.” Given the realities, such a dismissal of principled European criticism is not only self-serving, but highly arrogant even if in the end Paris and Berlin abandon their opposition in a fit of geopolitical opportunism.
There is no doubt that events since the end of the cold war have strained this earlier consensus. In the 1990s a series of conflicts that were internal to states, yet posed humanitarian crises due to ethnic cleansing (Bosnia, Rwanda, Kosovo) or breakdowns of governance (Somalia, and several sub-Saharan states), created degrees of support for what came to be called “humanitarian intervention.” When the US led the NATO coalition in 1999 to avert the advent of ethnic cleansing in Kosovo, a controversial precedent had been set for the use of non-defensive force without a mandate from the UN Security Council. The September 11 attacks challenge the viability of the overall framework of international law: a borderless war in which neither main adversary is a state. On one side is a concealed terrorist network with a hidden presence in 60 or more countries on one side and, on the other, a global state with military bases in about the same number of countries, as well as a naval presence on all oceans and plans for the militarization of space well underway.
What should “self-defense” mean in such an inflamed setting that lacked geographic parameters? The basic Charter idea was to regulate the use of force in relations among sovereign states. As such, with a bit of stretching international law could be responsibly interpreted as justifying recourse to a defensive war directed at Afghanistan. Even this was a stretch because the Taliban regime was not directly implicated in the attacks, and it was not given an opportunity to hand over the al Qaeda leadership or to cooperate with the United States in securing Afghan territory from being used in the future as a major terrorist base area. At the same time, the Taliban government was only recognized by three governments (and two of these quickly broke diplomatic relations immediately after September 11, leaving only Pakistan, which joined the war on the US side), possessed an abysmal human rights record, and was beset by both a civil war and an imminent threat of mass famine that it lacked the will and competence to avert.
Under these circumstances, the American war against Afghanistan, although remaining controversial in some anti-war circles, was widely accepted within the UN and by most governments, as a reasonable extension of the legal right of self-defense in these new circumstances. After all, the country seemed to be the nerve center of al Qaeda, and to contain its most notable leaders. There was a sense of urgency given the magnitude of the harm inflicted by the September 11 attacks, and the strong indications that additional attacks were planned as part of a continuing violent campaign against the United States role in the world. It was under these circumstances reasonable for the Bush leadership to believe that dislodging the Taliban and destroying the al Qaeda presence in Afghanistan was the most relevant first step in defending the country against such an enemy. It was a reasonable response, but not necessarily an effective one, especially given the manner in which the military campaign was carried forward. In retrospect, it seems clear that the Pentagon tactics included an excessive reliance on air power and on Afghan ground forces that nullified much of the expected benefits of striking at the al Qaeda headquarters. Furthermore, that the halfhearted postwar occupation and reconstruction efforts led by the United States are even raising doubts about the durability of “the victory” over the Taliban.
But the move from Afghanistan to the second phase of American response, directed at the “Axis of Evil” countries while imprudent on strategic grounds, seems also needlessly destructive of international law. For President Bush claiming a generalized right to wage “preemptive war” was in flagrant contradiction with the Charter’s legal framework without any special circumstances justifying an exception. And to apply that claim to Iraq, given the absence of any credible evidence of an imminent threat (something much more than “a smoking gun,” which itself the US has so far not managed to find despite its vast intelligence capabilities and the witness of numerous exiles) was to carry American unilateralism to the frightening extreme of claiming an extraordinarily dangerous and perverse right of “preventive war” (that is, lacking the elements of necessity and imminence). Even here the question “prevent what?” cries for an answer given the absence of a plausible Iraqi threat in the foreseeable future and the razor sharp containment policy poised to annihilate Iraq in the event of a Baghdad provocation in the years ahead.
Lest one be distracted by the guerrilla theater performance of Secretary Powell at the UN, it needs to be recalled that the initial Bush formulations of the preemption doctrine made no mention of the UN, and only a pro forma reference to Congress. The Bush preferred option was pure presidential unilateralism. It was only when Republican Party heavyweights (Scowcroft, Baker, Kissinger) publicly warned the White House that there was insufficient backing for the war that Bush was persuaded that he needed to build more national and international support prior to attacking Iraq.
It was in response that Bush shifted course, and acknowledged a role for Congressional authorization, let alone sought a UN mandate. All along, it was a matter of building a case for a war that had already been decided upon within the dark recesses of the US Government. What has been alarming is that Congress, apparently intimidated by Bush’s lingering popularity, and the Security Council membership seeming to prefer their role as rubberstamp to that of being again (as in Kosovo) bypassed, went along as sheep to the slaughter. In the process, the UN ignoring its own Charter embraced the pseudo-legalism of enforcing the punitive 1991 ceasefire resolutions imposed on a defeated Iraq after the Gulf War, embarking on this inspection safari that has found pathetically little despite visiting more than 230 suspected sites, having unlimited access and extensive intelligence, and the incriminating testimony of an array of Iraqi defectors. The Bush administration has indicated all along that it would greet a favorable report by the UN inspectors in a spirit of defiance, further undermining respect for international law and UN procedures, and returning to its original impulse to embark on war with or without prior UN approval. In fact, it has distorted Hans Blix’s balanced report, highlighting only the criticism, and suppressing via its full court media press the favorable comments on Iraqi cooperation with access and requested information.
When September 11 occurred it was obvious to me and others that this new struggle would exert pressure on the capacity of international law to provide acceptable limits on the way in which the United States pursued security in the world. For this reason, it seemed to make sense to give renewed attention to the Just War Doctrine as a way of acknowledging and identifying limits on recourse to force, yet loosening the restraints of legal rules that had been crafted to minimize warfare between territorial states. What could be done in relation to a concealed terrorist network needed to be different, including the authorization under exceptional circumstances of extending notions of self-defense to deal selectively in an anticipatory manner with threats from abroad that were severe and immediate. At the same time, there was no basis for abandoning international law or undermining UN authority when dealing with conflicts between territorial states, which continue to serve the world well. The claimed right of preemption against Iraq, given the realities of its capabilities and probable intentions, seemed best understood as recourse to “aggressive war” by the United States. To redefine the issue of US aggressiveness toward Iraq as the enforcement of UN Security Council resolutions or as a disarmament measure is to trample on sovereign rights of Iraq, and to subject its long suffering population to the scourge of a one-sided war. To argue that the legal basis of the war is to unseat Iraq’s brutal ruler, a claim of humanitarian intervention, is so far from the real American motivations for the war is manifestly hypocritical, although this did not stop the president from building part of his case for war in the recent State of the Union on graphic details of the cruel abuses toward the Iraqi people by the dictatorial Saddam Hussein.
Even aside from the Iraqi debate, the issues at stake are fundamental. Part of the difficulty is that the debate about the relevance of international law has been mainly between advocates of polar positions both of which miss the point. There are the realists, perhaps best represented by Michael Glennon, who argue that states no longer respect the UN framework of restraint, that the nature of international conflict has fundamentally changed, and that we might as well acknowledge the collapse of the international law enterprise in war/peace settings. And then there are the legalists who insist that nothing has changed, and that a rather literal reading of the Charter restraints deserves unconditional respect regardless of the gravity, the apocalyptic worldview, and the non-territorial character of the mega-terrorist security threats.
A more useful approach to international law, although admittedly more complicated, and dependent on the messier dynamics of judgment and interpretation, is to reaffirm the persisting vitality of the Charter approach to war and international force, but to acknowledge that the nature of global terrorism makes certain extensions of the doctrine of self-defense justifiable in exceptional circumstances. Referring back to the argument made above, there are grounds for loosening the restraints in relation to al Qaeda, but not with respect to Iraq. September 11 provides no persuasive grounds for departing from the prohibition upon the use of aggressive force in relation to Iraq, or other conflicts between sovereign states. At most, such force could be authorized by an explicit decision of the UN Security Council, but such authorization would itself be dubious in this instance, violating the letter and spirit of the Charter. It needs to be recalled and confirmed anew that the primary mission of the United Nations is war prevention.
There remains the possibility that America’s diplomatic muscle will intimidate the Security Council membership to ignore their constitutional responsibilities under the Charter, and either mandate an unwarranted war or refuse to place obstacles in the way of Washington’s stated intentions. Such a UN posture will weaken the credibility of the Organization as representing the best interests of the peoples in the world on matters of peace and security, and would further undermine the role of international law. Not only the peace of the world but the vitality of our democracy are in acute danger if the US Government continues down this path of lawlessness.