Why International Law Matters

by Richard Falk

The Nation magazine, March 10, 2003

There is little doubt that the White House seems resolved to wage war against Iraq, however weak its legal case, and despite the dramatic erosion of support even at home. It is probably late in the day to stop this militarist juggernaut, but it is not too late to try. There are several constructive steps that could still be taken. The UN General Assembly, relying on its residual authority to uphold world peace, could by resolution convene an emergency session to oppose recourse to war against Iraq, as well as to reaffirm the Charter rules governing the use of force It would also be significant if members of Congress opposed to the war could persuade their colleagues to take up their proposals to reconsider Congress's premature authorization of the use of force by the President, thereby finally fulfilling their constitutional responsibilities.

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 twenty-first 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 be forthcoming only if the grassroots pressure from here and abroad grows 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 operational control of the ends and means of the war being run from the White House and Pentagon. The Clinton Administration, prior to the 1999 NATO war over Kosovo, rejected peaceful settlement options and bypassed the UN on its way to war. But the presidency of George W. Bush has greatly accelerated this process. Its arrogant repudiation of such vital international agreements as the ABM Treaty and the Kyoto Protocol are indicative of this repudiation.

What September 11 did was to extend this dangerous form of American lawlessness to the most sensitive area of all-warmaking, the use 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 are 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 advisers. Its essential feature was to entrust the Security Council with administering a prohibition of recourse to international force (Article 2, Section 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 over the decades international lawyers have argued about the interpretation of these basic rules of restraint, but the Charter guidelines have generally been well enough understood to enable a clear line to be drawn between permissible and impermissible uses of force in most circumstances. A measure of flexibility existed, giving the UN legal authority to authorize nondefensive 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.

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 United States led the NATO coalition in 1999 to avert ethnic cleansing in Kosovo, a controversial precedent was set for the use of nondefensive 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 sixty or more countries, and, on the other, a global state with a worldwide naval presence, military bases in dozens of countries and plans for the militarization of space.

What should "self-defense" mean in such an inflamed setting that lacks 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. Still, it should be said in support of the war against Afghanistan that the Taliban government was recognized by only 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 US war against Afghanistan, although remaining controversial in some antiwar circles, was widely accepted within the UN and by most governments as a reasonable extension of the legal right of self-defense. 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 strong indications that additional attacks were planned. It was under these circumstances reasonable for the Bush leadership to believe that dislodging the Taliban and destroying the Al Qaeda presence in Afghanistan were the most relevant first steps 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 Pentagon tactics included an excessive reliance on air power and on Afghan ground forces that harmed many civilians and thus diminished many of the expected benefits of striking Al Qaeda headquarters. Furthermore, the halfhearted postwar occupation and reconstruction efforts led by the United States are 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, is imprudent on strategic grounds and also needlessly destructive of international law. President Bush's claim of a generalized right to wage pre-emptive war is in flagrant contradiction with the Charter's legal framework and lacks any special circumstances justifying an exception. To apply that claim to Iraq, given the absence of any credible evidence of an imminent threat, is 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. Imagine establishing a precedent that might be invoked by China to attack Taiwan pre-emptively, or India in relation to Kashmir, or dozens of other farfetched pre-emptive claims, resulting in an upsurge of dangerous warfare.

Lest one be distracted by the performance of Secretary of State Colin Powell at the UN, we should recall that the initial Bush formulations of the pre-emption doctrine made no mention of the UN and only a pro forma reference to Congress. The preferred Bush 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.

In response, Bush shifted course, acknowledged a role for Congressional authorization and sought a UN mandate-although war had already been decided upon. What has been alarming is that Congress, apparently intimidated by Bush's lingering popularity, and the Security Council, seemingly preferring its role as rubber stamp to that of being again (as in Kosovo) bypassed, went along as sheep to the slaughter. In the process, the UN ignored its own Charter and embraced the pseudo-legalism of enforcing the punitive 1991 ceasefire resolutions imposed on a defeated Iraq after the Gulf War, thus leading to the current inspection regime. The Bush Administration has indicated all along that it would greet a UN inspection report favorable to Iraq with a spirit of defiance, further undermining respect for international law and UN procedures, and would return to its original impulse to embark on war without prior UN approval. It has distorted Hans Blix's and Mohamed ElBaradei's balanced reporting, highlighting only their criticism and suppressing via its fullcourt media press their favorable comments on extensive and expanding Iraqi cooperation in providing access and requested information. If eliminating the Iraqi WMD threat is Washington's true motive for war, then only a fool would abandon the inspection process for war at this point!

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 can be done in relation to a concealed terrorist network needed to be different, including the authorization under exceptional circumstances of extended notions of self-defense to deal selectively in an anticipatory manner with threats from abroad that are severe and immediate. At the same time, it was clear there was no basis for abandoning international law or undermining UN authority when dealing with conflicts between territorial states, where they continue to serve the world well. The claimed right of pre-emption 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 the sovereign rights of Iraq and to subject its longsuffering 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 US motivations for the war as to be manifestly hypocritical, although this did not stop the President from building part of his case for war in the recent State of the Union address on graphic details of Saddam Hussein's cruel abuses toward the Iraqi people.

Even aside from the Iraq 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 literal reading of the Charter restraints deserves unconditional respect regardless of the gravity, the apocalyptic worldview and the nonterritorial 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 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 UN is war prevention.

There remains the possibility that America's diplomatic muscle will intimidate the Security Council into ignoring its 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 posture would weaken the credibility of the UN as representing the best interests of the peoples of 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 is in acute danger if the US government continues down this path of lawlessness.

Richard Falk, a visiting professor at the University of California, is the author of The Great Terror War (Olive Branch).

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