[ARTICLE] On The Decomposition of International Law

From The New Republic

Law and Order
by Robert Lane Greene

The normally academic debate over the relevance of international law got a lot of public attention amid the posturing over Iraq this spring. At the time, many analysts and lawyers decried the Iraq war as “illegal” because it violated the U.N. Charter, the signatories of which forswear the use of force except in straightforward self-defense or when authorized by the U.N. Security Council. It was a questionable argument, but the concern over Washington’s evolving concept of when it can legitimately wage war is not misplaced. In fact, the Bush administration’s doctrine of preemption, laid out in the National Security Strategy that was released in September 2002, can be read as renouncing the principles of the Charter that America helped write.

That perception isn’t entirely accurate. But if allowed to persist, it could do significant harm to American national security. And, to date, the Bush administration has done little to prevent that from happening.

The idea that the Iraq war was illegal has good arguments both for and against it. Resolution 678 of November 1990 authorized “Member States [of the United Nations] co-operating with the Government of Kuwait” to use “all necessary means” to evict Iraq from Kuwait and “to restore international peace and security in the area.” Resolution 687, passed after the ceasefire in April 1991, laid down the comprehensive terms of Iraq’s surrender, including the prohibition of weapons of mass destruction in Iraq. Resolution 687 also said that breach of its terms would nullify the ceasefire, effectively re-starting war against Iraq. Pro-war lawyers argue that 687 was never repealed and did not expire, and that the many resolutions passed against Iraq since the first war, including Resolution 1441 of November 2002, reiterate 678’s authorization of force by declaring Iraq in ongoing breach of 687. The many American airstrikes between the two wars were justified on this legal ground. Antiwar lawyers say that the Security Council cannot permanently delegate the decision to resort to force to member states–indeed, they point out, the resolutions include a paragraph that the Security Council will “remain seized of the matter.” For them, the 2003 war was a new war, not a continuation of the Gulf war, and therefore needed explicit Security Council authorization.

This detailed argument rarely made it into the press, however. More common was a simple exhortation that war is illegal except when blessed by the United Nations, an oddly prelapsarian view that seems almost wilfully naïve. In any case it’s easy enough to debunk. The Security Council has authorized only three wars in its history: the Korean War (while the Soviet Union was boycotting the Council), a 1960s intervention in Congo, and the first Gulf war. That there have been numerous wars since 1945 would suggest that the U.N. Charter has been violated repeatedly. But while one could argue that all those wars were technically illegal, most legal experts concede the legitimacy of customary, not just statutory, law–meaning widely accepted actual practices can, over time, become as legitimate as written rules.

With its reasonable, if debatable, legal underpinning, the Iraq war did not by itself change the international system in the way antiwar critics feared–that is, it did not render the United Nations powerless as an arbiter of international conflict. Indeed, the fact that American lawyers spent so much time trying to shore up the legal basis showed a respect for the Charter and the United Nations itself. But the broader National Security Strategy could indicate a real doctrinal shift in the conduct of war, one that could be highly destabilizing.

One problem is that the National Security Strategy allows the United States to take preemptive action against foreign terrorist threats without specifically defining what those threats are–which increases anti-American suspicion by making every country fear that it’s a potential candidate for preemption. One can imagine nervous countries bolstering their own military expenditures as a result.

Nor does the strategy make any attempt to couch the U.S. response to such threats as a fight to uphold the non-aggression norm, or to promote that response in terms that could be interpreted as reinforcing the U.N. Charter. The section entitled “Work with others to defuse regional conflicts,” for example, makes no mention of the United Nations, and the only substantive mentions of the body in the whole 35-page document refer to soft policy like economic development and fighting HIV/AIDS. That’s unfortunate, since framing America’s potential preemptive actions in terms of international institutional norms would have reinforced that other important founding principle of the United Nations–the notion that all nations are created equal, at least as far as the rules of the system go. The failure to do this implies that America assumes the right of preemption only for itself, which likewise only makes America a bigger and uglier target than it already is. Not only will terrorists see the United States as a fair target, but even American allies, who share the goal of a peaceful international order, will see that order threatened. One alternative, of course, is to extend the unconstrained right to attack foreign terrorist bases to everyone. But that’s not especially reassuring either: Taken seriously, it could see India march into Pakistan, Russia into Central Asia, Colombia into Venezuela, and so forth.

In the end, most of the limitations of the Bush National Security Strategy come down to tone, not substance. As TNR pointed out last week, both neoconservatives in the Bush administration and neoliberals like Kenneth Pollack agree that America should act with allies and peacefully where possible, alone and forcibly where it must. But affirming unilateral force as a core principle sends the message that America no longer considers itself constrained by the twin principles of non-aggression and sovereign equality. It should not then be surprised when it is treated as a dangerous rogue by friend and enemy alike.

Robert Lane Greene is countries editor at Economist.com.