International Law in a Unipolar World

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.