In These New Times

Legality remains of fundamental importance to the question of war. However, just as a nation’s legal system is inevitably distorted by an excessive concentration of wealth and power, international law is inevitably distorted by states of hegemonic or near-hegemonic power: by empire. As the post-1945 period, and particularly the post-1991 period, was characterised by the global power of the USA and NATO, the UN and international law has been perverted to serve their interests. The end of US hegemony which we are now seeing is an opportunity to refound the UN and international law in the context of a more, balance, multipolar, post-imperial world. Note that I use the word “multipolar” and not “multilateral”: “multilateral” has been coined to indicate an ideal whereby US inspired actions always have the cover of international support, of their minions who rally to them.

Chase Madar

Middle-East Online

10th July, 2011

It is too easily forgotten that warfare is not primarily a matter of law. Under international law, the UN Security Council blessed NATO’s Libya campaign without the necessary debates over its consequences, says Chase Madar.

A vision of international law, centralised and standing above all nations, regulating and upholding a pacific world order, has guided much thought and action in international relations since the end of the second world war. Peace Through Law, published in 1944 by the Austrian jurist Hans Kelsen, is the classic exposition of this vision; Forging a World of Liberty Under Law by G. John Ikenberry and Anne-Marie Slaughter is the latest iteration. Diplomats, politicians and bureaucrats have built legal institutions (multilateral but based in New York) by which sovereign states can settle disputes lawfully, with military force exercised only in self-defence, and as a last resort.

More recently this vision of multilateral world order has been buttressed by the rise of human rights law and non-governmental organisations. These momentous legal developments should surely bring us ever closer to world peace. And yet a growing number of jurists worldwide have come to see international law less as a force for peace than as a supple instrument of war.

A case in point is the deployment of international law in NATO’s Libya campaign, now into its fourth month and fighting far beyond its initial mandate of “civilian protection.” Security Council resolution 1973 blessed, under international law, this act of war: the approval of the United States, with France and the UK, as well as seven other nations (representing 600 million people) was enough to stamp Operation Odyssey Dawn with the UN’s great seal. China, India, Russia, Brazil and Germany, which represent nearly three billion people, abstained from the vote to authorise military force, but formal compliance with UN Charter law has convinced many that this act of war is just and necessary. Middle East writer Juan Cole supports the war because it is legal and multilateral, as have many others across the political spectrum. “The Libya intervention is multilateralism at its best,” said Stephen Szabo, director of the Transatlantic Academy in Washington.

Suppose that NATO’s war in Libya is in perfect accord with international law (which is to overlook the absence of congressional authorisation, a violation of the US constitution and the War Powers Act of 1973). If it is legal, is it benevolent or worth fighting? Legality is never enough to justify any action. It would be legal for someone to donate their entire worldly wealth to Sarah Palin’s political action committee and then move their family into a cardboard box. Every day we are presented with choices that, though legal, would be foolish and destructive. The distinction, though banal, is often difficult for jurists to grasp.

But surely the fact that the Libya campaign is multilateral makes a difference? Multilateralism has beguiled many great liberal minds in the past. The Italian philosopher Norberto Bobbio and the German sociologist Jürgen Habermas were dazzled by the multilateralism of the 1991 Gulf war and championed the campaign at first. Once they saw the carnage and lasting damage to ordinary Iraqis, authorised by UN Security Council resolution 678, they recanted.

Cold act of cruelty

Economic sanctions against Iraq quickly turned into a cold act of cruelty, killing tens of thousands of non-combatant citizens trapped in an authoritarian state. These sanctions, authorised by resolution 661, were fully multilateral and, as far as the UN goes, legal. (Former chief sanctions administrator Denis Halliday quit the programme in Iraq on the grounds that its actions probably met the UN definition of genocide.) Multilateralism under the auspices of the UN is no guarantee of prudent or even minimally humane policy.

Bismarck once remarked that treaties were like sausages, you don’t want to know what goes into their making, and the origins of the UN contain much that is unappetising. At the founding conference in San Francisco, the US government tapped foreign delegates’ phones, bugged their hotel rooms and left no chance for any outcome other than an institution dominated by the United States.

The historian Mark Mazower has emphasised the UN’s originally intended function not just as a world parliament but as an instrument for managing colonial empires. Despite the complaints of the US right, the UN has never restrained US war-making abroad; if anything, it has eagerly offered itself as a helpmate for great power prerogatives. (Even after the latest Iraq war violated international law, the UN trailed after the conquering army to help with the occupation, at the cost of the lives of UN workers.) The UN’s commissions do much valuable work but the UN Security Council, where most of the real power resides, remains, as noted by Danilo Zolo, director of the international law journal Jura Gentium, about as democratic a forum as the Holy Alliance of 1815.

Unlike the Holy Alliance, the UN comes with a sonorous charter with claims to global universality and a strong preference that military force should be a last resort. Yet the UN Charter has proved useful for fashioning cases for war. As David Kennedy of Harvard Law School noted, “The surprising thing is how rarely warfare has been undertaken since 1945 without some UN Charter justification; it is hard for me to think of an example, actually. More commonly, all parties to the conflict root the justification for their actions in one or another way in the language of the Charter, which strengthens their own confidence in the absolute justice of their cause.”

It is puzzling that so many revere Security Council resolutions. (Or perhaps pretend to: when the NATO air assault on Serbia in 1999 proceeded without UN authorisation, few seemed to mind.) Does the approval of the Security Council really guarantee sound judgment?

Is legality the real issue?

Opposition to the Bush and Blair invasion of Iraq stressed the war’s illegality, which was brazen; international law provided a readymade vocabulary to articulate why that war was so wrong. And yet the emphasis on law was misplaced, both tactically and intellectually. Inside the United States, international law has little clout and is often felt to lack democratic legitimacy. Even in the UK, where international law talk has more weight, legal institutions and arguments failed to force the Labour government to change its disastrous course in Iraq, or to hold any of those responsible to account. (The Chilcot Commission’s feeble grilling of a cheerful Tony Blair failed even as theatre.) Others have also wondered if a National Security Council resolution “legalising” the conflict would have in any way redeemed such a brutal and destructive war.

Another reason for the emphasis on law is the growing influence of the human rights industry. Although the lawyers who staff these nonprofits do much courageous and valuable work, the human rights discourse is insufficient — indeed, vacuous — as politics. This is by design, as the doctrine of human rights grounds its legitimacy on being militantly apolitical, a neutral pose both ideological and pragmatic; any position of overt politicisation would alienate governments, offend key donors and imperil an NGO’s tax-exempt status. Neither Amnesty International nor Human Rights Watch (HRW) took any position on the invasion of Iraq: such political judgment is outside their brief, though HRW did note in 2004 that the Iraq war was not a bona fide humanitarian intervention.

HRW has a policy of silence on matters of jus ad bellum (the laws on whether to wage war), focusing instead on violations of jus in bello (laws on how war is fought). According to James Ross, HRW’s legal and policy director, the group only speaks out in favour of war in exceptional cases “when it is the only reasonable measure that can prevent or stop the crime of genocide or the comparable mass killing of civilians.” These exceptions have happened frequently of late. Both HRW’s executive director Ken Roth and its chief Washington lobbyist Tom Malinowski applauded the NATO campaign in Libya, endorsing military force. Days after the airstrikes began, HRW called for “nothing less than the type of unified and decisive action the UN Security Council has brought to bear in Libya” in Côte d’Ivoire, in a Foreign Policy article on 25 March. (Ross denies this was a call for military intervention, though it is difficult to read it as anything else.)

In 2009, HRW called for the Obama administration to “commit to a long-term strategy” for securing civilian safety in Afghanistan, tacitly approving a longer military occupation, in the name of human rights. (For many humanitarian NGOs it is an article of faith that the Afghan pacification campaign is a philanthropic endeavour, to which the 140,000 armedISAF troops are purely ancillary.) HRW also supported wars in Kosovo and Somalia.

A secular Vatican

HRW aspires to be an authoritative but supranational font of human rights pronouncements, a secular Vatican. But transcending worldly politics is not so easy. The rest of the world sees it as American, with privileged access to Washington where its lobbying power is concentrated, and, as James Peck argues in his recent history, HRW has tended to operate within the intellectual parameters set by Washington.

In Iraq, it has criticised the tactics and execution of the US occupation in the spirit of a loyal adjutant, chiding the US military for not securing arms stockpiles that HRW researchers had spotted in Baghdad and Basra. But HRW has never condemned the occupation itself, the essential illegality of which has gone unquestioned. As for recommending military interventions, HRW did not follow up its endorsement of the Libyan campaign with calls for similar action in Yemen or Bahrain, both US client states where nonviolent protesters have been shot or imprisoned. (In fairness, HRW has consistently condemned Israeli human rights violations against Palestinians, a bold move for any American institution.)

Both the UN Charter and human rights law are double-jointed on questions of war. But if international law’s prohibitions are useless, the licenses it grants to military violence are decidedly useful. UN officials and human rights grandees don’t dwell on instances of international law’s impotence (Panama, Kosovo, Iraq in 2003), but when they are able to approve acts of war (Iraq in 1991, Afghanistan, Libya) it is with an eagerness to prove their field’s relevance. In ways that Hans Kelsen never envisioned, international law has been weaponised. “We should be clear,” wrote Kennedy, “this bold new vocabulary beats ploughshares into swords as often as the reverse.”

For now, international law, however pliable to powerful states, remains an important strand in any debate about war. But law should never crowd out discussions of interests, ethics and the consequences of war, debates that were almost entirely missing in the run-up to the Libya war.

How had Gaddafi responded to uprisings in 1993 and 1996 in eastern Libya? (His reprisals, though lethal and tyrannical, did not come close to the scale of Srebenica, much less Rwanda, the lazy reference points for justifications of the NATO airstrikes.) How would a sustained civil war affect Libya’s civilians? How would a free flow of arms affect the Sahel countries to Libya’s south? Is the National Transition Council, however cordial its relations with Bernard-Henri Lévy, capable of ruling the country? These issues are at least as important as the legal casuistry deployed to justify military violence, which spoke more to the piety of NATO members’ intentions than to the real consequences of military force. It has been too easily forgotten that warfare is not primarily a matter of law.

Chase Madar is a lawyer and journalist in New York, and author of The Passion of Bradley Manning, O/R Books, September 2011.

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