Should the US seek a permission slip before it wages war?
Vice President Dick Cheney received thunderous applause when he declared to the Republican National Convention “George W. Bush will never seek a permission slip to defend the American people.” This bold assertion echoed the language used by President Bush in his 2004 State of the Union Address to underscore an ethos of non-accountability by the United States to the norms of international law governing the use of force. It was meant to validate recourse to war against Iraq in the prior year without securing any kind of authorization from the United Nations Security Council. In effect, this American leadership is repudiating the core commitment of the United Nations Charter contained in Article 2(4) that prohibits recourse to force by states to resolve international disputes, and thus strikes a body blow at the American-led effort of the prior century to construct rules and practices that limited force to occasions of self-defense against a prior armed attack, as authorized in the Charter by Article 51.
As a first effort to think through this unilateralist attitude, it seems useful to put similar words in the mouths of other leaders around the world. How would the United States and the American people respond if Iranian, Chinese, and Pakistani leaders were to stake out such positions and then act upon them to settle their outstanding disputes? Such behavior would appear totally unacceptable, destructive of world order, and a prescription for generalized chaos and pervasive warfare.
A second response might be a claim of American exceptionalism. The United Nations is too weak to sustain world order. United States leadership on a global level is the only alternative to chaos. Such a role as global peacekeeper is premised upon expectations of American benevolence and good judgment. Most of the world is increasingly disturbed by and distrustful of the pretensions of American power, particularly in light of the Iraq War. The rest of the world does not view American unilateralism with favor, and is unwilling to exempt the United States from international law. Skepticism about the Iraq War has been doubly confirmed, first by the non-existence of weapons of mass destruction and then by a prolonged occupation that has led to a widening and deepening resistance on the part of the Iraqi people. The American repudiation of international law is not widely accepted beyond the shores of the United States, and even within the country is opposed by most of the country’s more respected international law experts.
A third line of discussion stakes unilateralism on the special circumstances created by the 9/11 attacks, and the difficulties of avoiding future attacks if international law is respected. It is true that the 9/11 attacks challenge some notions of international law such as the viability of limiting defensive uses of force to reactions after an attack has taken place. Where there is no specific location of such an adversary and given the severity of possible attacks, the American emphasis on prevention is understandable. But to stretch international law in this direction without causing a breakdown of the basic framework of restraint presupposes that uses of force to prevent an attack are premised on specific and persuasive facts. Recourse to war against Iraq was deeply troubling to so many because that country appeared to pose no plausible threat that might have reasonably been treated by American leaders as necessitating a preventive war. Indeed, Iraq now seems far more of a danger to the region and to the United States than it did prior to the war. It should be remembered that Iraq (unlike Al Qaeda) was a territorial entity subject to the logic of deterrence that had worked against even such a formidable rival as the Soviet Union.
This lack of good reasons for departing from the normal constraints of international law explains why it was so widely assumed that the American motives for the war were not at all defensive, but related to oil, empire, and Israel. In other words, the violation of international law represented, at best, a deplorable misunderstanding of the post-9/11 world by American leaders, and, at worst, reflected their willingness to wave the banner of anti-terrorism to hide foreign policy ambitions that were morally and political unacceptable if acknowledged. Such suspicions are reinforced by the fact that the neocon advisors to Bush were determined to achieve regime change in Iraq long before 9/11, as is fully acknowledged in the notorious report of the Project for a New American Century and as further confirmed by Paul O’Neill, Bush’s Secretary of the Treasury.
A fourth line of discussion is alive to lessons of the policy failure associated with illegality of the Iraq War. It relies also on the conclusion that the American role in the Vietnam War, especially the extension of the war to North Vietnam in 1965, represented a flagrant violation of international law, including the United Nations Charter. From this perspective, the restraints embodied in international law, if respected, would have spared the country its two worst foreign policy disasters of the past century. International law needs to be understood as embodying practical wisdom, especially in an era of universal nationalism. Iraq is demonstrating, as was the case with Vietnam a generation earlier, that military dominance cannot be easily translated into favorable political outcomes. When President Bush spoke on the carrier USS Abraham Lincoln on May 1, 2003 with the banner “Mission Accomplished” hung behind him, it exhibited this confusion between battlefield success and military victory, which depends on attaining political goals at acceptable costs. The plain fact is that a powerful country is better off when it respects international law than when it feels free to disregard at will.
What this overall experience shows, above all, is the continuing significance of international law as a source of guidance and restraint. After World War II we punished the surviving German leaders for waging what the Nuremberg Tribunal decided was aggressive war. What is more, at the end of these historic proceedings the American prosecutor, Justice Robert Jackson, insisted that the standards being applied to the defeated Germans would only be the expression of a just cause if those states sitting in judgment would hold themselves to account in the future. Subsequent international history has reinforced the insight of Justice Jackson, and nothing that has taken place in the intervening decades has altered this assessment. An International Criminal Court has existed since 2002, but the United States instead of leading the way, has put every obstacle in the path of this crucial effort to extend legal accountability for the crimes of states.
Without doubt, this country, as well as the world, would be far better off if the United States, and other countries, did indeed obtain a permission slip before embarking on war.. The American people should demand that their government uphold its constitutional commitment to comply with validly ratified international treaties. For our sake, as well as for that of the world, we need to insist that our government live within the limits set by international law. There is nothing associated with 9/11 that should weaken this insistence. Indeed, the opposite is the case.
The best chance of overcoming the threats associated with global jihadism is to bolster transnational law enforcement based on high levels of police cooperation between governments and intelligence agencies. Unlike the territorial wars of the past between sovereign states, the current conflict is in essence “an information war” in which information, not weapons, is the foundation of restored security. Obtaining accurate information about impending terrorist plots would greatly facilitate preventive law enforcement. This is the kind of American leadership that the world needs. It would dispose foreign governments to cooperate in a common endeavor to protect organized political life on the planet. This cooperation would be especially forthcoming if reinforced by an American show of serious willingness to address the legitimate grievances of those parts of the world that currently exhibit intense anti-Americanism. Dealing with the Palestinian issue justly, working to reduce world poverty and AIDS, regulating economic globalization so that the benefits of economic growth are spread more fairly, and working to achieve global democracy that facilitates participation by the representatives of all peoples, are the sort of steps that will overcome the political climate which engenders the terrorist violence of 9/11 and counter-terrorist violence that followed in response.
International law is far from a panacea. It is essentially a holding operation in this period of transition from a Westphalian world of sovereign states to a new framework of global governance. This framework is needed to address problems of order, but also must contribute to equity, sustainability, and democratic participation for the whole world. It is a birth process for a new world order that depends above all on the further spread of an ethos of human solidarity, which is at the same time capable of celebrating cultural and religious diversity and of nurturing a new spirituality that combines universal aspirations for peace and human rights with a realization that benign differences are just as crucial to human survival as similarities.
A Note from Richard Falk
I have worked throughout my professional life on behalf of the extension of the Rule of Law to American foreign policy, and to world politics more generally. Never have I felt quite so discouraged about this struggle for moderation and self-restraint on the part of this country. The events of 9/11, combined with the absence of any principled opposition, have exposed the weakness of constitutional democracy in this time of great political stress. It is a sad commentary on this climate of opinion that if the world could vote in an American election the prospects for a more law-oriented American political leadership would be much brighter. At this time, to avoid despair without surrendering our values, depends on combining politics with spirituality. We hope that the unfolding reality of war and violence obscures a larger narrative of trends toward the protection of human rights and the renunciation of war as the foundation of security. The spread of such beliefs is our best chance for a sustainable human future.
