War, Law, and Consistency
That hasn’t happened yet, although Julian’s most recent posts made some observations that I would like to consider further.
Julian’s opening points can be essentially boiled down to this: international law matters in places like the U.K. because of enforcement concerns (such as through the ICC) or in Germany because of domestic political concerns. He then continues:
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.
This conflates legality with political expediency. Sure, U.S. political leaders may not worry much about international legality because American voters largely do not, but that in no way makes the U.S. action legal. Moreover, simply because the President met domestic legal standards for invading Iraq does not absolve the U.S. from its responsibilities under international law, responsibilities that we largely drafted at the birth of the U.N.
The next part of Julian’s argument is interesting for the way that it is a double-edged sword. He writes:
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?)
As my comments to Julian’s earlier post point out, I am shocked by how conservatives jettison any aspect of textualism, originalism, or formalism the minute they discuss issues of international law and the use of force. All of a sudden we need not be so concerned with what treaties say and what framers meant but instead we should accept that there are “new rules” that are somewhere out there (even though no one else but the lawyers from the Office of Legal Counsel seem to be able to perceive them).
That is not “purposive” interpretation or viewing the Charter as a “living” text; it is, rather, tortured interpretation.
Take the idea that resolutions from either 1990 or 1991 could somehow justify the current Iraq War. The key resolutions, Resolution 678 from 1990 and 687 from 1991 are instructive in what each does or does not say.
Where in the 1990 resolution, or in any of the resolutions it cites to, is there anything about the authorization of the use of force to sweep Iraq for WMDs? Where is there anything besides specific resolutions concerning ousting Iraq from Kuwait? What Resolution 678 does have, though, is a grant of the ability to use force (an authorization “to use all necessary means”) to uphold Resolution 660 (the ousting of Iraq from Kuwait).
As for Resolution 687 from 1991, there are mentions of WMDs and missile capabilities but there is no operative language that authorizes the use of force. Not only is there no “all necessary means” language, there is an explicit catalogue of the means of implementing the language on WMDs. The method of implementation? Weapons inspections. If there was a consensus for “all necessary means” language it would have been there; such consensus did not exist (as has been reiterated constantly by members of the Security Council in the run-up to the current war) and so the language wasn’t there. You can’t use the language from the 1990 resolution because it is explicitly tied to ousting Iraq from Kuwait.
If anyone thinks that we should read these resolutions as authorizing the current war, then I would pose to them the question as to whether they would use such loose interpretational standards in domestic statutory construction (I wouldn’t).
As for Kosovo, as I have written before, I do not think there is consensus on humanitarian intervention and I, personally, do not see the NATO bombing of Serbia as one that was legal under norms of international law. I think the most honest analysis of this came from Professor Tom Franck of NYU who said that while we may view the act as morally legitimate (protecting an oppressed population), we cannot say that under the current set of norms it was legal. That means one of two things—either going forward we chould change the rules, or states that continue to act in this way face potential state responsibility. (I would note that there was an ICJ case by Serbia against the NATO countries, but it was dismissed in the jurisdictional phase, without a finding on the merits.)
Why can’t those who support the Iraq War take a similar approach? Why can’t they say we are acting because we think this is something that we must do, even if it is illegal. We will act and we will face the legal repercussions of our actions squarely because we do not want to take the rules of armed conflict and interpret them away into absurdities. We will act in this way because the world is a better place with these rules than without these rules.
That is an argument that I could respect. I may disagree with factual issues concerning the threat of Iraq (no WMDs), but, legally (and morally) speaking, that would be a position that at least would be consistent.
But consistency is in short order these days in Washington.