Friday, February 25, 2005

The Relevance of the Iraq War's Legality (cont'd)

Thanks everyone for commenting here. Although I have to run to class, I can't resist a quick response.

I think international law matters, even for the use of force, but what is interesting is why it matters. It obviously matters more in the UK, where the PM felt he couldn't act without legal authorization and where UK soldiers could be subject to the jurisdiction of the ICC.

Legality also matters because many foreign governments care a lot about legality. I would suggest that some of these foreign governments are selective about what kind of international legality they care about (France and Russia come to mind) but there are countries like Germany (that is to say, modern Germany) who can authentically claim to set their foreign policy on use of force within the framework of IL. They no doubt would have opposed the war whether or not it was "legal" but I don't discount that countries like Germany really believe that the international legality matters.

But the legality question matters far less in the U.S. because the domestic legality of the Iraq War is essentially undisputed (Congress authorized it, etc. etc.). The international legality of the Iraq War appears to have absolutely zero political significance (just ask John Kerry). Obviously, many people oppose the war, but the legality of the war is far from the most important reason they oppose the war.

Because it hasn't really mattered as a matter of U.S. law or policy, the discussion of the legality of the Iraq War is far less developed than it is in the UK. Specifically, the U.S. government ha not had to seriously defend the legality of the Iraq War.

I suppose most U.S. international lawyers would say it violates the UN Charter, but I do think there are real counterarguments. I am always struck by how formalist international lawyers can get sometimes with respect to interpreting the law governing the use of force. I wish sometimes they would be just as formalist with domestic constitutional and statutory law (where is that right of abortion in the Constitution anyway?) Is Chris absolutely sure what the intent of the Sec'y Council was at the various points during the Iraq crisis (in particular, with respect to the 1991 resolutions)? I suppose we can say: all parties now say they never authorized it, but what about at the time? If Iraq had breached any part of the 1991 resolutions ending the Gulf War, is Chris sure that no action could be taken in response?

In any case, there is that looming question of Kosovo. I just don't buy the post-hoc rationalizations for the rather aggressive use of military force there (that would be bombing Serbia into submission, than occupying an entire province indefinitely). In that case, there wasn't even a plausible claim of UN authorization and I am unsure why the use of NATO made everyone feel better. NATO openly stated it was not acting in self-defense. Sure, there was a humanitarian exception. Uh, where is that in the UN Charter exactly? Why isn't that the product of "tortured interpretation"? So why can't John Yoo and others say that there is the "suspected WMD" exception to the UN Charter? Sounds good to me and if you took a vote, I am sure it would get much more support.

Look, Kosovo may have been a good war and Iraq a bad one. But the "legality" is just not all that clear in either case. And international lawyers lose even more credibility among other lawyers and non-lawyers, I think, when they insist (like Sands does) that the Iraq War is obviously and blatantly illegal.


Anonymous Seth Weinberger; Department of Political Science, Duke University said...

The relevance of Kosovo is that the UN bureaucracy wanted to legitimize the intervention, even if the Security Council couldn't authorize it. Kofi Annan went so far as to say that while the NATO intervention may have been "illegal" under the UN Charter, it was legitimate under the emerging understanding of human security and an evolving concept of sovereignty. The UN also did, ex post, declare the intervention to be in accordance with international norms.

These two concepts -- human security and sovereignty -- are undergoing much evolution in the UN now, as it wrestles with its relevance in the modern world. As Professor Manne noted in an earlier comment on this site, the rule-based basis of liberalism often clashes with the principles of liberalism. The UN, while enshrining sovereignty, also sees itself protecting the basic concepts of liberalism, like the right of a populace to not be slaughtered or raped by its government. When those two concepts are odds, what is to be done? The UN's answer was to say that since Kosovo was conducted by a multilateral organization (NATO) it could be viewed as legitimate.

This then raises the question: How much multilateralism is needed to legitimize a technically illegal operation? Is the Iraq war illegal because France and Germany blocked NATO from participating, even though many other important NATO members (the UK, Spain, Italy, etc.) were on board?

Absent external enforcement this question is at the heart of international security.

2/25/2005 3:39 PM  
Blogger Kevin Jon Heller said...

Julian claims That "international lawyers lose even more credibility among other lawyers and non-lawyers, I think, when they insist... that the Iraq War is obviously and blatantly illegal." Who, exactly, are those lawyers and non-lawyers? The only scholar Julian cites is John Yoo, whose views on international law are so far outside of the mainstream that his defense of the Executive's right to torture has now (and much belatedly) been officially disavowed by... the Executive. Yoo's position on the legality of the Iraq war, as expressed in the article Julian cites, is similarly ideosyncratic -- and similarly unpersuasive. Chris Borgen has done an excellent job dismantling Yoo's tortured (pardon the pun) interpretation of the relevant Security Council resolutions in the article.

I'd simply add that Yoo's argument that the right of anticipatory self-defense justified the Iraq war is even less persuasive. Yoo spends four pages defending the existence of that right (something few international lawyers would doubt, at least in theory), then concludes that the right justified the Iraq war in two sentences.

Here they are, reproduced in full: "Applying the reformulated test for using force in anticipatory self-defense to the potential use of
force against Iraq reveals that the threat of a WMD attack by Iraq, either directly or through Iraq’s
support for terrorism, was sufficiently “imminent” to render the use of force necessary to protect the
United States, its citizens, and its allies. The force used was proportionate to the threat posed by Iraq; in
other words, it was limited to that which is needed to eliminate the threat, including the destruction of Iraq’s WMD capability and removing the source of Iraq’s hostile intentions and actions, Saddam

That's it. No argument. No supporting facts. No footnotes. And certainly no mention of the fact that Iraq didn't actually have any WMDs, much less WMDs capable of "imminently" harming the U.S.

As for Yoo's equally unsubstantiated claim that the threat of a WMD attack on the U.S. was sufficiently "imminent" to justify the invasion of Iraq because of Iraq's "support of terrorism," -- it's difficult to imagine a more terrifying argument.

In essence, Yoo's reasoning is this:

[1] Saddam Hussein supported terrorists.

[2] There are terrorist groups in the world who would immediately strike the U.S. if they ever obtained the means to do so.

[3] The U.S. thus has the right to invade Iraq in order to eliminate Saddam's support for terrorism.

That argument, of course, once again overlooks the pesky fact that Hussein had no WMDs to give these unnamed terrorist groups, completely undermining the "imminence" argument. But even if we put that objection to the side, the overbreadth of Yoo's argument is staggering -- if we take it seriously, the U.S. has the legal right to invade any country that could conceivably give some kind of WMD at some point in the future to some kind of terrorist group that hates the U.S. I can think of more than a few American allies who would be made more than a little uncomfortable by that argument...

If Julian wants to argue that the illegality of the Iraq war isn't "an easy question," I suggest he avoid turning to John Yoo for support. By citing Yoo, and Yoo alone, Julian only hurts his own case.

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