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Subject: [IP] U.S., Iraq, & International Law by Jacques deLisle
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From: Foreign Policy Research Institute <fpri@fpri.org>
Date: Sat, 29 Mar 2003 00:35:00 -0500
To: David Farber <dave@farber.net>
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ILLEGAL? YES. LAWLESS? NOT SO FAST:
THE UNITED STATES, INTERNATIONAL LAW, & THE WAR IN IRAQ
by Jacques deLisle
March 28, 2003
Jacques deLisle is a Senior Fellow at the Foreign Policy
Research Institute and directs our Asia Program. He is also
a Professor of Law at the University of Pennsylvania.
ILLEGAL? YES. LAWLESS? NOT SO FAST:
THE UNITED STATES, INTERNATIONAL LAW, & THE WAR IN IRAQ
by Jacques deLisle
>From Beijing and Moscow, Paris and Berlin, Baghdad and other
capitals, from the floor of the United Nations and the
streets of American cities, and from the mouths of pundits
and experts, we hear the common complaint: the United
States has acted illegally in attacking Iraq. The charge is
correct, particularly in the formal, procedural terms in
which it is most often framed. That which is not quite
lawful, however, can be almost legal (or even a means of
changing the law) and, thus, far from lawlessness.
True, the United States and its handful of active partners
in the coalition did not obtain the Security Council's
specific authorization for their use of force against Iraq,
nor has the Bush administration articulated a credible claim
that this a case that falls within one of the few, narrow
exceptions permitting the international use of military
force without Security Council authorization.
But, contrary to what much of the chorus of criticism
asserts or assumes, unlawfulness is not the same thing as
lawlessness. Eschewing or rejecting prescribed legal
processes is not the same thing as rejecting all legal
principle. Not adhering to the international legal
requirements set forth in the U.N. Charter does not lead
ineluctably to the world of Thucydides' Melian Dialogue in
which the strong do what they wish and the weak do what they
must.
Where some legal rules are breached, principles can still
guide and constrain, justify and condemn. And many of those
principles are legal or closely entangled with law. To
think otherwise is to hold a naive and crude notion of law
(particularly international law) and, thus, to
underappreciate -- and to put a risk -- the roles that law
can play in the war with respect to the war in Iraq and,
more importantly, the war's aftermath.
While a more subtly and politically sober conception of
legality as a matter of degree can make it possible for law
to play such roles does not mean that it will happen.
Indeed, it is least likely to occur under what currently
seems to be a highly plausible scenario: the U.S.
administration and its closest allies insist that the
evidence supports their claims that their actions were
nearly legal and therefore justified or, at worst,
excusable, but traditional American allies, great powers and
much of the rest of the world declare themselves --
disingenuously or not -- to be thoroughly unpersuaded.
ALMOST LEGAL (I) -- THE U.N. PROCESS
Official American statements and diplomatic efforts appear
to recognize the difference between "almost legal" and
"simply lawless," and the potential moral and political
significance of that difference. U.S. arguments have
included or implied a claim that the circumstances
surrounding the Iraq war come close to satisfying
international legal conditions for permissible use of force
against a sovereign state. In several specific arguments
that military action is warranted, the U.S. claims of
"(almost) close enough (to being legal)" have ranged across
the claim's two principal forms: near-satisfaction of a
relatively uncontroversial requirement for lawful
international military action, and possible satisfaction of
a more controversial or emergent legal ground.
The U.S. has pursued or asserted something that approaches -
- but does not reach -- the U.N. Security Council
authorization that would make war lawful under generally and
widely accepted principles. Unable to secure the requisite
nine votes (with no opposition by any of the five permanent
members) on the fifteen-member Council to authorize the use
of force to enforce earlier Security Council resolutions'
requirement that Iraq disarm, the U.S. and sympathetic
commentators contemplated the next best things.
Thus, we saw a concerted effort to round up nine votes
(without unanimous acquiescence from the veto-holders) for a
resolution endorsing military action. If the effort had
been successful, the U.S.'s use of force still would not
have been pursuant to a legal mandate from the Security
Council. But the lack of legality would have seemed to be
of a narrower, more technical sort. It would have been
possible for the U.S. to say that its actions had the
support of the requisite supermajority of the Council -- a
body designed to be broadly representative of the nations of
the world, as well as the world's most powerful nations.
The "only" legal defect then would have lain "merely" in the
fact that the minority in opposition included one or more of
the permanent members, at least one of which (France) holds
a veto on the basis of historical reasons more than current
strategic importance.
In the same general vein, the Bush administration reportedly
contemplated seeking a Security Council resolution that
would have declared Iraq in violation of the obligations
prior resolutions had imposed on Iraq to cooperate with
inspections and to divest itself of weapons of mass
destruction. Such a resolution, again, would not have
provided the specific authorization for war that the
procedures in the U.N. Charter restrictively prescribe.
But, here too, the falling short of the legal requirement
might have seemed significantly less. The U.S. could have
portrayed the "legality gap" as the product not of the
Security Council's refusal to determine that legitimate
grounds for the use of force existed but, rather, of some
Council members' failure to act responsibly in authorizing
the necessary steps to enforce the legal requirements that
they themselves had crafted, first in Resolution 687 (the
1991 document requiring disarmament as part of the cessation
of hostilities in the first Gulf War), and most recently in
Resolution 1441 (the 2002 action declaring Iraq in violation
of its obligations under 687 and other resolutions, and
warning of "serious consequences" for continued
noncompliance).
Even in the absence of Security Council action declaring
Iraq in violation of Resolution 1441, 687 and other
resolutions in between, much the same line of argument has
been available to the U.S. And the American administration
has not hesitated to avail itself of it: By setting a legal
standard for Iraq's disarmament in 687 and endorsing
"serious consequences" for any failure to comply, the
Security Council went a good part of the way to authorizing
force in 1441. The U.S. and its supporters and partners
made much the same argument in connection with the use of
force in the former Yugoslavia.
Moreover, advocates of the international legality or near-
legality of the U.S. use of force against post-Gulf War Iraq
have had yet another Security Council process-based argument
at their disposal: Resolutions 687, 1441 and others are
clearly the outgrowth of Resolution 678, which undisputedly
authorized military action against Iraq in the first Gulf
War. As some commentators see it, this provides a
convincing case for full-fledged legality of the use of
force in the current conflict under the "unexpired"
authority in 678. (Ironically, this argument has been
weakened as a political matter by the U.S.'s seemingly law-
regarding impulse, and futile effort, to seek a fresh
Security Council authorization for the use of force.) For
many others, such lineage-tracing contains an element of
bootstrapping that cannot satisfy the U.N. Charter's
exacting standards. But the analysis still grounds a
powerful assertion of near-lawfulness, making the U.S. and
coalition forces' action in 2003 the clear (if not
necessarily legitimate) heir to a clear legal mandate to use
force.
ALMOST LEGAL (II) -- SELF-DEFENSE AND DEFENSE OF OTHERS
Other U.S. arguments have evoked (if not strictly invoked)
self-defense and the cooperative defense of other nations --
the principal, widely accepted exceptions to the U.N.
Charter's prohibition on the use of force without specific
Security Council authorization. Thus, the Bush
administration has stressed the prospect that Saddam's
regime would pass weapons of mass destruction to terrorist
groups, or that Iraq would attack nearby nations (a risk
made evident by the invasion of Kuwait and the launching of
missiles at Israel during the first Gulf War), or that the
Iraqi regime was excessively entangled with al-Qaeda or
similar groups. To be sure, these dangers that American and
allied leaders have claimed Iraq poses to the U.S. or to
states in the region fall short of the occurrence or the
imminent threat of armed attack that is the conventional
requirement for internationally lawful use of force in self-
defense, and that was clearly met with respect to Kuwait in
the first Gulf War. To the extent that the defense of more
immediately endangered Middle Eastern countries are at issue
in the 2003 conflict, the unambiguous formal requests from
threatened states for foreign armed assistance that
international law ordinarily demands have not been
forthcoming.
Still, the potential impact and presumed purpose of self-
defense-related arguments is to soften or reduce the
perceived "degree" of illegality and, more broadly,
illegitimacy. A peril that is not sufficiently grave or
imminent to ground a winning legal argument still provides a
good deal more to a nation contemplating military action
than would a situation that posed no meaningful threat or
present danger, in which case the use of force would look
like little more than a Clausewitzian continuation of the
amoral business of politics by other means. The permission
Kuwait, Qatar and others granted to the coalition to deploy
forces from their territory may not be the legally required
request for foreign assistance in self-defense, but it comes
pretty close, especially in light of the predictable Iraqi
reaction which came swiftly in the form of Scuds lobbed
westward.
Moreover, the American position on the question of self-
defense has gone beyond such defensive postures to adumbrate
a more assertive argument: the hoary international legal
notion of self-defense requires updating to reflect
contemporary circumstances, particularly post-September 11.
Where the threat takes the form of another state's
acquisition and proliferation of weapons of mass destruction
or its support for international terrorism (including
through providing terrorists with such weapons), the
traditional international legal notion of the legitimate
trigger for the "anticipatory" use of force in self-defense
-- a state's massing of troops along the border or a state's
clearly signaling its intention to invade -- looks
impossibly demanding. If effective self-defense requires
"hot preemption" or some other form of anticipatory or
preventive action beyond what an unreformed legal doctrine
of self-defense allows, then the failure to follow the
outmoded legal rules is likely not to appear patently
lawless or unquestionably condemnable, even to those who see
it as not lawful.
ALMOST LEGAL (III) -- INTERVENTION FOR BENIGN ENDS
Official U.S. arguments for using force have incorporated
elements from what is increasingly known in international
law as forcible intervention for "benign purposes,"
principally intervention for democracy and humanitarian
intervention. Thus, the American administration has
articulated a goal of "regime change" that will produce a
democratic Iraq, and it has pointed to gross and systematic
human rights abuses under Saddam's rule, including the Iraqi
ruler's "gassing his own people" and the regime's long
history of mistreatment of the Kurds and ruthless repression
of perceived political opposition. Neither type of argument
is new to the repertoire of law-tinged defenses of U.S.
foreign policy: Intervention on behalf of democracy was an
oft-sounded theme in connection with U.S. intervention in
Haiti, and intervention on humanitarian grounds was part of
the defense of intervention in Kosovo, Somalia and
elsewhere.
Here too, U.S. arguments that resonate with international
legal notions are less than what international law demands
for the lawful use of force. Intervention for "benign"
purposes remains a contested and dubious notion in
international law, not least because of the problem of self-
judgment and the risks of opportunism by interveners. As
critics (whether sincere or self-serving) have pointed out,
a doctrine of democratic or humanitarian intervention risks
cloaking in the trappings of legality and legitimacy the
pursuit of agendas that are motivated by nothing more law-
regarding or laudable than Clausewitz's dictum or
Thucydides' Athenians. Moreover, the situation in Iraq
before the Second Gulf War was not a paradigmatic case for
intervention on either basis. The classic case for
intervention for democracy is where a lawfully elected
government has been ousted, recently, by the regime targeted
by the intervention. And the relatively easy case (if there
is one) for humanitarian intervention involves rampant
ethnic cleansing, genocide or a complete collapse of order
that portends massive loss of life.
Yet, again, there is much to be said for -- and something to
be gained by -- being closer to legality rather than farther
from it. Not all invocations of democratic values and
human rights are hypocritical or self-serving.
Interventions that credibly and convincingly seek to advance
democracy and end the type of serious human rights abuses
that have occurred in Iraq can be characterized plausibly as
not patently lawless or thoroughly indefensible.
LAW AND THE BALANCE OF EVILS
Official U.S. arguments about the war in Iraq also have been
attuned to two other elements of international law governing
the use of force: principles of necessity and
proportionality impose legal limits on the use of force even
where a legally adequate ground for using force exists. The
U.S. and its coalition partners have been at pains to
address the concerns underlying these doctrines.
In terms of "necessity," Bush and Blair administration
officials and spokesmen relentlessly asserted that the
inspections process was not working and, thus, that nothing
less than military action would suffice to remove the grave
dangers that Saddam's regime posed to the world beyond Iraq.
In the same vein, once Saddam rejected Bush's ultimatum for
going into exile, it became clear that only an invasion
would achieve the proclaimed goals of regime change that
could lead to disarmament, democracy and an end to human
rights abuses. On the issue of "proportionality,"
explanations of coalition military strategy and methods have
stressed the targeting only of military and governmental
facilities and command and control systems, the sparing of
civilian lives and infrastructure, and the use of improved,
precision-guided weapons to achieve the coalition's ends
with minimal collateral damage.
As the combat has turned uglier, another face of necessity
and proportionality-related arguments has emerged. U.S.
reports of Iraqi violations or possibly impending violations
of international legal restraints -- in mistreating and even
executing POWs, in using civilians as human shields, in
possibly shooting coalition personnel who were trying to
surrender, and in perhaps preparing to use chemical weapons
-- grew numerous, laying the grim groundwork for a possible
response to charges of lawlessness and cries of moral
outrage that would surely proliferate amid the destruction
wrought by wayward U.S. or British munitions, or the
predictable adjustments in coalition tactics and rules of
engagement triggered by Iraqi forces' guerrilla-style raids,
sham-surrender ambushes, and use of civilian clothing and
vehicles.
Even the most persuasive argument and proof that coalition
acts adhered scrupulously to whatever rules of necessity and
proportionality might be found in international law could
not make military action internationally lawful where there
is no legally adequate grounds for using force at all. But,
once again, near-legality looks a lot better than wanton
disregard for law. As official and unofficial defenders of
coalition actions have recognized, resorts to force that are
marginally or not-egregiously unlawful may carry less
opprobrium where they can be depicted as indispensable means
carefully tailored to minimize collateral harms in the
pursuit of almost-legal ends.
WHY A MISS ISN'T AS GOOD AS A MILE
To those whose long-standing or new-found love for
international law pervades their criticism of the U.S.-led
war in Iraq, the suggestion that the war's international
legality is somehow a matter of degree doubtless seems
wrongheaded or perverse or suspiciously defensive of the
American agenda. Law (even international law), after all,
is supposed to be about stark and polar -- if potentially
contested and controversial -- choices. The use, and the
particular uses, of force in Iraq are either legal or
illegal. Any discussion of a spectrum that runs from legal
and legitimate to nearly lawful to utterly lawless
undermines that clarity and risks condoning the condemnable.
It muddies the clear legal fact: The U.S. and its partners
did not obtain the Security Council authorization that was
necessary to make war lawful. Shades of gray belong to the
realm of politics or, on some accounts, morality. To
embrace them is to concede law's irrelevance or undermine
its potential contributions.
That view is wrong on all counts. It ignores obvious
features of international law and their obvious
implications. The international legal system lacks singular
institutions with the capacity to determine authoritatively
and effectively whether an act is legal or not. Because
international law does not have a viable executive, capable
of enforcing the legal rules, it depends instead on what
international law calls "horizontal enforcement" -- that is,
self-help (or other-helping) measures by those who in a more
robust legal system would depend on police and prosecutors
to redress or deter encroachments on legal rights. Because
international law lacks strong and authoritative judicial or
quasi-judicial institutions (especially where the use of
force is concerned), interpretation of legal norms is a
decentralized process undertaken by interested parties.
Such a process is understandably prone to discord, but
unevenly so. Because international law has no legislature
with the ability to craft clear and binding rules, making
legal norms is an informal and pluralistic process. States,
groups of states and other actors often can effect legal
change only through acting as law-entrepreneurs, sometimes
by undertaking and defending acts that are, ex ante,
illegal. A legal system that depends on such methods to
enforce, interpret and make law is nearly guaranteed to
produce the type of heated disputes over the line between
lawful undertaking and illegal overreaching that now swirl
around the U.S.-led actions in Iraq.
Embedded in many denunciations of the lawlessness or
illegality of coalition action is the idea that the Security
Council can play some or all of the roles of the core legal
and law-making institutions of a strong and mature legal
system -- and thus that the Security Council's approval
ought to be regarded as almost always indispensable for a
lawful use of force. That notion is either disingenuous, or
a simplistic projection of a naive model of domestic
legality in states with a strong rule of law, or a mistaken
inference from the atypical and evanescent moment of the
early post-Cold War and the first Gulf War period when the
Council was not paralyzed by one or another veto-holders.
Given the institutionally weak and decentralized system of
international law (which, in this respect, resembles a good
many domestic legal systems), to insist that the question of
an action's legality can and must be answered with a simple
"yes" or "no" is to do what those who now invoke
international law to criticize the war in Iraq purport to
abhor. It is to doom international law to inefficacy,
either by asking it to issue definitive legal answers where
it cannot, or by limiting its reach to those few areas and
occasions where it can generate seemingly clear,
procedurally unimpeachable judgments that are likely to be
politically irrelevant (and often normatively questionable
in terms of the principles underlying substantive legal
doctrines).
Contrary to what such critics might fear, to accept that
international legality is in part a matter of degree and a
spectrum of gray does not one-sidedly cut the U.S. and its
supporters a great deal of slack, much less a blank check.
While this does open the door to the claims of "(almost)
close enough to legal" that the American administration and
its allies have made, it does not mean that such arguments
will succeed or that international law has been deprived of
all bite. Where international law is acknowledged to be
less law-like than some might assert, imagine or hope,
international legal arguments are not thereby rendered
indistinguishable from the extralegal arguments of
international politics or consequentialist morality.
Although not unmovable or free of blurriness or dissension,
the relevant international legal principles and rules
provide comparatively fixed, widely (if sometimes only
formally or hypocritically) accepted and relatively clear
benchmarks from which "closeness" and "remoteness" can be
intelligibly measured. With the opportunities that notions
of "degrees of legality" or "close enough" afford to the
coalition states also come dangers of a distinctively legal
or law-related sort.
IN WHOSE COURT?: FACTS, INTERNATIONAL OPINION AND LEGALITY
Whether the U.S., its allies, supporters and defenders will
gain or lose by their resort to arguments in the vein of
"(almost) close enough to legal" depends on what has yet to
happen or has yet to become known.
Much turns on what the degree of illegality will look like
in retrospect. Will the U.S. and others be able to find the
votes in the Security Council for resolutions that will
confer a limited retroactive blessing on what the coalition
forces will have wrought in Iraq? Failing that, will the
U.S. and the U.K. and like-minded governments be able to
beat back (preferably through some mechanism other than the
veto) a Security Council resolution (or perhaps a General
Assembly resolution, where no veto is available) squarely
condemning the war as unlawful?
Will the coalition forces find physical evidence or human
sources that will clearly and convincingly establish that
Iraq possessed large stockpiles of chemical or biological
agents or other banned weapons, had plans to use them, or
made moves to pass them to terrorists? Will states in the
region offer sufficiently clear expressions of gratitude or
will post-war reports of extensive quiet or secret
cooperation by such states in the coalition's operations
make the situation appear to resemble more closely the
collective defense paradigm of the first Gulf War?
Will a stable, democratic, human rights-regarding and
genuinely Iraqi government succeed Saddam's regime? Will a
more open post-war Iraq generate a torrent of fresh, graphic
and persuasive evidence of human rights atrocities under
Saddam's rule?
Will coalition forces manage to inflict few harms on
civilians and to provide the assistance necessary to avert
humanitarian crises in Iraqi cities? Will Iraqi forces
resort to chemical or biological weapons or widespread and
severe violations of the laws of war? Will reports of
Saddam's loyalists' severe abuses and killings of Iraqi
citizens and prisoners of war bear out?
Affirmative answers to these questions of fact, of course,
would greatly strengthen the U.S. and its partners'
arguments for the near-legality and, thus, the legitimacy of
their war in Iraq. But in international law's world of
decentralized authority and weak institutions, facts are
funny things. What legally relevant facts do (and, in such
cases as possible Security Council resolutions, what legally
relevant facts are) depends on persuading foreign
governments and the constituencies that influence them.
This maxim is especially strong where -- as is clearly the
case in Iraq -- there will be international disputes aplenty
(both honest and duplicitous, both reasonable and
preposterous) about what "really" happened before, during
and perhaps after the war.
Here, the U.S. and its partners and proponents face a
difficult task. Whether one characterizes it as fighting an
uphill battle on unreasonably steep terrain, or climbing out
of a deep hole of the U.S.'s own making, the task of
persuading much of the world that coalition actions were
indeed "(almost) close enough to legal" will be no mean
feat. One can attribute more or less of the blame to, on
one hand, American diplomatic bungling, bullying, and
insensitivity or the Bush administration's prior contempt
for international law, or, on the other hand, the cynical
calculations of narrow self-interest, the desperate grasping
for the influence due a great power, or the awkward attempts
to cover up complicity with Saddam's regime variously
undertaken by France or Russia or Germany or China. But,
whatever its mix of origins, the challenge will be
formidable.
If the coalition partners can produce very good facts and if
the Bush administration and its supporters can do a much
better job of presenting them to the post-Iraq war world
than they did in arguing the pre-war case for intervention,
then the U.S. and its coalition allies might -- but only
might -- secure the politically useful outcome that is the
closest that international law can come to a favorable
judgment under the circumstances: much of the world,
including the great powers and traditional U.S. allies,
might accept that the war in Iraq was almost legal, far from
lawless and thus a relatively minor breach and perhaps even
a step toward developing an international legal regime that
accepts a post-September 11 reconception of self-defense and
an expanded notion of forcible intervention for benevolent
purposes.
Such an outcome, however, is far from certain, and at the
moment may seem very unlikely. The failure to achieve it
would represent not just a diplomatic setback for the
American and British administrations and states that have to
varying degrees sided with them. It would also be a blow to
the role of international law and international legal
institutions in legitimating and constraining the
international use of force. This is precisely the outcome
that the states denouncing American lawlessness accused the
Bush administration of courting, but it is one that,
ironically, will also have been in part the product of such
states' political tactics having leaned so heavily on a
narrow, rigid and ultimately brittle conception of
international legality.
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