2005

Why International Law Matters

Richard Falk

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. It 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 Bush presidency greatly accelerated this process, especially by its arrogant repudiation of such vital international agreements as the ABM Treaty and its rejection of the widely accepted Kyoto Protocol seeking with due urgency to regulate the emission of greenhouse gasses.

What September 11 did was to extend this dangerous form of American lawlessness to the most sensitive area of all-warmaking, 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. Of course, 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.

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 a coalition of states 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 a borderless war in which the main adversaries are a concealed terrorist network with a hidden presence in 60 or more countries on one side and 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, on the other side.

What could "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.

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 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 al Qaeda. Furthermore, that the halfhearted postwar occupation and reconstruction efforts led by the United States even raise 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 to claim a generalized right to wage "preemptive war" was unnecessarily in contradiction with the Charter's legal framework. And to apply that claim to Iraq, given the absence of any credible evidence of an imminent threat, was to carry American unilateralism to a frightening extreme. It should be remembered that in the early Bush formulations of the preemption doctrine there was no deference to the UN. 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 support prior to attacking Iraq.

It was only then that Bush acknowledged the need for Congressional authorization, let alone a UN mandate. All along, it was a matter of building a case for a war that had already been decided upon within 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 made it clear 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 without prior UN approval.

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 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. The claimed right of preemption against Iraq seemed best understood as recourse to "aggressive war" by the United States. To redefine the issue as the enforcement of UN Security Council resolutions or as a disarmament measure is to trample on the sovereign rights of Iraq. To suggest 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 and so manifestly hypocritical that even the Bush leadership only refers to such issues in passing.

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. At most, such force could be authorized by an explicit decision of the UN Security Council, but such authorization would itself be dubious, 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, "to save succeeding generations from the scourge of war" in the famous words of the Charter Preamble. And make no mistake that even quick wars are a scourge for its victims and their families. There is every reason to expect an Iraq war to be such a scourge.

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 weaken the role of international law in world politics.

At this stage, the White House seems resolved to wage war, 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 be taken at this stage. As Joan Russow has suggested, 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 constructive for Congress to reconsider its authorization of the use of force by the President, hold hearings on the legal and political case for and against war, debate and pass a more restrictive resolution relating to Iraq, and thereby finally fulfill its own constitutional responsibilities with respect to warmaking.

Beyond such formal 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 clarify the relevance of international law and the just war doctrine to the realities of the 21^st century. As citizens, we have the opportunity and responsibility to act as if it possible to challenge this illegal and dangerous war fever that has gripped the leadership of this country.