UN Security Council Resolution 1973 has bestowed the blessings of international law on NATO’s war with Libya. True, the vote was met with abstentions by China, Indian, Russia, Brazil and Germany, but the assent of former superpowers France and the United Kingdom, six other nations and (of course) the United States was enough to stamp “Operation Odyssey Dawn” with the UN’s great seal. Compliance with international law is proof positive for many intellectuals that this act of war is just and necessary. The estimable Juan Cole, scholar of the Middle East and influential blogger, supports the war because it is legal and multilateral, as do many others on the liberal-moderate spectrum. “The Libya intervention is multilateralism at its best,” says Stephen Szabo, director of the Transatlantic Academy in Washington. (As for the American right, the greater part of it is so reflexively pro-war that reasoned justifications are scarcely necessary.)
Suppose that our act of war in Libya is perfectly legal. This is to overlook the absence of congressional authorization, a clear violation of the US Constitution, but let’s leave that aside for now. If our war in Libya is legal does that make this war prudent, effective, benevolent, worthwhile? Does the legality of this war imply a moral obligation to wage it?
A little reflection shows that legality in itself is never enough to justify any action. It is perfectly legal (for instance) too donate all your worldly wealth to the Scientologists, to Newt Gingrich’s political action committee or to Harvard Law School and then (legally) move your family into a cardboard box. It is perfectly legal to have unprotected sex with a houseful of heroin addicts. It is perfectly legal to — you get the picture. Whatever value we attach to legality, it is never a proxy or substitute for prudence, good sense or morality. Every day we are all presented with choices that though legal would be foolish and destructive.
But the Libya campaign is multilateral—surely that makes the difference? Multilateralism has certainly beguiled many great liberal minds in the past. Norberto Bobbio and Jürgen Habermas, to name two famous examples, were dazzled by the multilateralism of the 1991 Gulf War and eagerly championed the campaign — at first. Once they saw the amazing carnage wrought by the war and its lasting damage to ordinary Iraqis, all of it authorized by UN Security Council Resolution 678, the chastened philosophers muttered recantations. As for the economic sanctions against Iraq, they quickly turned into a cold act of unspeakable cruelty against a civilian population, killing tens of thousands of innocent people trapped in an authoritarian state. These sanctions, authorized by Security Council Resolution 661, were fully multilateral and, as far as the UN goes, perfectly legal. (Former chief sanctions administrator Denis Halliday quit the program in Iraq on the grounds that its actions probably met the UN definition of genocide; needless to say this serious accusation spawned no tribunal or special court.) In short, multilateralism under the auspices of the UN is never a guarantee of prudent or even minimally humane policy.
Bismarck’s greatest cliché likened treaties to sausages; you don’t want to know what goes into their making. Yet the unedifying origins of the UN would make an Upton Sinclair retch. At the founding conference in San Francisco, the US government tapped foreign delegates’ phones, bugged their hotel rooms and left no chance for any outcome other than an institution under the full control of Washington. Despite all the stuck-pig squealing of John Bolton and other jingoistic know-nothings, the UN has never been a diabolical restraint on American adventures abroad—if anything, it’s been a condom for great power prerogatives. Although the UN’s various commissions and bodies do much valuable work, the UN Security Council is no more a democratic forum for the world’s peoples than was the Holy Alliance of 1815.
It is puzzling, then, that our bien-pensant anti-Boltons gesture with such reverence to the resolutions issued by the UN Security Council. (Or perhaps they only pretend to: when the NATO air assault on Serbia in 1999 proceeded without UN authorization, few seemed to mind.) Does the seal of approval of the Security Council really guarantee flawless judgment? Put concretely, if the 2003 invasion of Iraq had obtained a legal permission slip from the Security Council, would that war have been any less calamitous? The question answers itself.
Why then do so many bright people come to find mere legality to be sufficient grounds for war?
Part of the reason is that opposition to Bush and Blair’s invasion of Iraq dwelt heavily on the war’s illegality, which was indeed brazen. It is true enough that international law gave us a readymade vocabulary to articulate much of why that war was so wrong.
And yet the emphasis on law, I think, was misplaced. Inside the United States international law has very little clout and is felt by most Americans, right or wrong, to lack democratic legitimacy. And if you want to convince people of something, why lead with an argument that’s dead on arrival? Especially when there were so many compelling reasons stemming from self-interest as much as compassion. Even in the UK, where international-law talk carries greater currency, it must be acknowledged that legal institutions and arguments failed utterly at forcing New Labour to change its disastrous course in Iraq, or holding officials to account. (Sorry, but the Chilcot Commission’s feeble “grilling” of a cheerful Tony Blair was a bust even as theatre.)
Another reason for our fixation on law is that the antiwar discourse has gotten pulled into the orbit of the human rights industry. Although the Ivy Leaguers who staff these nonprofits do sterling work on a limited set of issues, the lawyered-up lingo of their trade is woefully insufficient as politics. The whole doctrine of human rights bases its legitimacy, in fact, on being expressly apolitical. Not surprisingly then, most of the biggest issues we face both domestically (national healthcare, education, government budget crises) and internationally (whether to stay or leave Afghanistan; immigration policy) are not in the least amenable to human rights covenants or institutions, in practice or even theory. This is not to trash the human rights industry, which within its sphere does much fine work; it is merely to point out that the legal pronouncements of Amnesty International and Human Rights Watch offer zero guidance to many our most pressing concerns. (Of course HRW does occasionally stray from its mandate, as when it blurted an endorsement of the Libya War for reasons poorly grounded in human rights doctrine.) Although international law is an important strand in any debate about warmaking, it should never crowd out discussions of interests, morality and consequences. In short, we need to relearn how to talk about foreign policy overtly as politics rather than couched as a legal matter.
After all, our foreign policy discourse has not always choked on legalism. The American “Peace Progressives” of the early 20th century’s interwar years negotiated arms-limitation treaties, got the US out of the Caribbean, prevented war with Mexico, and presciently urged recognition of the Soviet Union—and yet these same peaceniks were also dead against the League of Nations and Wilson’s liberal legalism. Likewise, the antiwar movement of the 1960s tended to invoke international law only ritualistically before quickly moving on to the more urgent reasons to oppose the Vietnam War. Is our dependence on legalism really an advance? It has been too easily forgotten that war is not primarily a matter of law.
CHASE MADAR is a civil-rights lawyer in New York. He reviews and reports for the London Review of Books, Le Monde diplomatique and CounterPunch. He can be reached at firstname.lastname@example.org.
This article was originally published by the American Conservative.