The Relevance of Legality in War (Part III)

I want to weigh in on what has been a fascinating discussion of war and legality in the context of Iraq and Kosovo and also the lingering issue of the gulf between the US and Europe on these fundamental questions.

First, on Julian’s and Chris’ comments about the rules governing the use of force and doctrines of interpretation: the problem for both sides is that the rules only really worked for a short period of time in the 1990s. At the time, it looked as though the end of the Cold War would bring about a Security Council that would more or less operate as originally intended by the drafters of the Charter. Today it looks more like a historical window that opened and is now, if not totally shut, only partially ajar. Reliance on these rules and doctrines of interpretation therefore becomes relatively meaningless when divorced from the liberal principles underlying the international system. This is precisely why I raised the issue of legitimacy in my earlier post on a NATO force for Darfur. I agree with Seth Weinberger’s comment to Julian’s post that question of legitimacy lies at the center of the multilateral rules governing the use of force, and should be at the heart of any discussion of how to revise or revamp the rules. The interplay between law and legitimacy is interesting in this context: 1) the rules themselves confer a kind of legitimacy (i.e. collective security through cooperative decision-making as a reflection of international liberalism); and 2) the use of force itself as an attempt to enforce liberal values (e.g., human dignity and security).

Because it was a case in which these two points conflicted, Kosovo was a challenge to a central orthodoxy in international law about the non-use of force except in self-defense. As Chris pointed out, plenty of international law scholars did and still do denounce Kosovo as an illegal intervention (in addition to Tom Franck, see, e.g., Mary Ellen O’Connell, The UN, NATO, and International Law, After Kosovo, Human Rights Quarterly 22, 2000). But Kosovo forced the UN and the international community to grapple with the fact that the UN mechanism created to enforce the rules may have been, gasp, an impediment to preserving and defending the very values for which it was created. The use of NATO is one way to carry out a collective use of force through an organization that is based on the same principles as the UN, save one: universal membership. (Indeed, the North Atlantic Treaty borrowed language on collective security almost wholesale from the UN Charter.) It is one reason why I support the use of NATO in Afghanistan and would support in Darfur.

Second, Julian hasn’t been paying enough attention when he asks “do you know anyone who wanted to go to war in Iraq but thought it was illegal, or opposed the war but thought it was legal? I don’t.” As one astute anonymous comment noted, one of the architects of the current Iraq war, Richard Perle, famously stated on the record that the war was illegal. (See the uproar his statement caused in the UK here). And the tone had certainly been set by the Bush’s statement that he didn’t need a “permission slip” to defend US interests. Attempts within the Bush administration at expressing legal justification for the war — based on either the emerging doctrine of pre-emptive war or on past UN Security Council resolutions — were clearly post hoc and (as Kevin Heller points out in his comment) shifted as the facts and political justifications changed over time. Ironically, these attempts to provide legal justifications put the administration where I don’t think it wanted to be (certainly not where Perle thought they should be) — arguing over doctrinal rules governing Security Council resolutions.

Julian raises an important point: the apparent irrelevancy of the international legality of the use of force in US political discourse — including throughout the mainstream media — and the centrality of it in European political discourse. Why does it not matter (to Democrats or Republicans) whether sending American troops into battle is unlawful in the eyes of the rest of the world? Why does it matter to Blair or Schroeder or Chiraq? I don’t think it is simply a question of ICC jurisdiction, but rather goes to the relationship between countermajoritarian international law and democracy. In an early post here, I discussed Jed Rubenfeld’s take on this issue, which I think gets it right. To grossly oversimplify his point: because of its history of nationalism Europe sees post-WWII international law as necessary to constrain majoritarian tendencies; the US sees post WWII international structures as a way of implementing majoritarian views. But this deep division on questions of international governance (with the exception of trade regulation) is the “elephant in the room” of US-European relations. And the elephant did not arrive when Bush was elected president; it has been there since the fall of the Berlin Wall. This is one reason why the Medellin case will be watched closely across the pond.

At our symposium on judging this weekend, Dan Farber made an observation about judging that applies equally to international law (certainly as reflected in a couple of the student comments posted in response to Julian’s and Chris’ posts). Most students, he noted, enter their first year of law school fascinated — and comforted — by the idea that the law is set of rules and exceptions that can be applied almost mechanically. They generally balk at the idea that two judges can look at the same set of rules and exceptions applied to the same set of facts and come up two different results. So they react in one of two ways: throw up their hand and conclude that all judging is either based on what the judge had for breakfast or raw political preference; or retreat into the rules and insist that their view of them is right. The hard slogging for us professors is getting them to the middle where principled decision making meets policy choices. As our discussion here shows, this is even more so when talking about the rules governing the use of force, which were always intended to meld law with politics.