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The Outlaw World

About the performance of the UN Security Council concerning Iraq, Sands concludes:

The simple fact is that the great majority of states who sat on the Security Council in March 2003 did not consider that the circumstances, as they were then known to be, could justify the use of force. History has shown that they were right and that the US and Britain were wrong. No WMD have been found. It could be said that the UN system worked. No amount of bullying by two permanent members could buy the votes they wanted.

He could have added that had the inspections been allowed to continue, war probably could have been avoided, with all credit being given to the US for putting the necessary pressure on Saddam Hussein. Instead, the ostensible reason for the US invasion was changed from the alleged threat of WMDs to regime change. Moreover, as Hans Blix reminded the Security Council after inspectors had reached preliminary conclusions about the absence of WMDs, “international inspections and monitoring systems were to stay in place.”

2.

Michael Byers states that the objective of his book is to “provide the interested non-lawyer with a readily comprehensible overview of the law governing the use of force in international affairs.” Clear and informative, his account is particularly valuable at a time when there is a worldwide debate, arising largely from the Iraq situation—but also relevant to the genocide in Darfur—about the circumstances in which it is legally appropriate for one country to use force against another or for international intervention on humanitarian grounds.

Byers’s discussion of self-defense, the justifying condition for the unilateral use of force in the UN Charter, takes up more than half his book. He goes back to the case of the steamship Caroline, which was hired in 1837 by a private militia to ferry men and supplies across the Niagara River to support a Canadian rebellion against the British. The British set the ship on fire and floated it over Niagara Falls, later claiming that they did so in self-defense and that their action was justified on political grounds. When the dispute was finally, and amicably, settled in 1842, the American secretary of state, Daniel Webster, conceded that the use of force in self-defense could sometimes be justified as a matter of necessity, but that nothing “unreasonable or excessive” could be done in self-defense.

These criteria—“necessity and proportionality”—were widely accepted as the requirements of a new international legal right to self-defense. Byers emphasizes the importance of this precedent as showing that a country could defend itself without declaring war, and that peace could be maintained even when the right to self-defense was exercised; he traces the development of this concept up to the present time.

The United Nations was the first international organization to combine in its charter the three main rules for maintaining peace: prohibition on the use of force in international affairs (Article 2.4); a provision for the use of force by the Security Council against threats to the peace and acts of aggression (Chapter VII); and an exception for the use of force by governments in self-defense (in Article 51). But the plea of self-defense, as Byers shows, can be complex when it involves forceful action beyond a nation’s own territory.

For example, in 1976 an Air France plane with many Israeli passengers aboard was hijacked by Palestinians and taken to Entebbe in Uganda, where non-Jewish passengers were released. Facing a deadline for meeting the hijackers’ demand for the release of fifty-three Palestinian terrorists, an Israeli commando team, led by Jonathan Netanyahu, killed the hijackers, rescued the Israeli hostages, and flew them back to Israel. Netanyahu himself was killed. This action is now credited as a precedent for extending the right of self-defense to protecting nationals abroad.

In April 1993 an attempt to assassinate former President George H.W. Bush in Kuwait was thwarted by the discovery of a sophisticated car bomb. When Iraq’s involvement in this attempt was established, President Clinton ordered the destruction of Saddam Hussein’s Military Intelligence Headquarters in Baghdad by twenty-three Tomahawk missiles. The Security Council did not censure this action, although the use of force without Council authorization was condemned by the Arab League.

The Council did not even consider President Clinton’s response to the destruction by terrorists of the US embassies in Tanzania and Kenya when he fired seventy-nine Tomahawk missiles at al-Qaeda training camps in Afghanistan and also at a pharmaceutical plant in Sudan suspected of making chemical weapons for terrorists. Moreover, by authorizing the US-led operation against the Taliban in Afghanistan after September 11, the Security Council also set a precedent for using force against a state harboring terrorists, provided that the terrorists had previously attacked the state concerned.

On the even more controversial question of preemptive self-defense, Byers cites the case of Israel’s 1981attack on Iraq’s French-built Osirak nuclear reactor, which the Council unanimously condemned as a grave breach of international law. Byers writes that George W. Bush’s policy claiming the right of the United States to use unilateral, preemptive force—widely considered a dangerous example that other states may try to emulate—clearly violates the common-sense criteria of the Caroline case for self- defense. He believes that such a policy as Bush’s, if maintained, could even serve as an incentive to some states to try to acquire a nuclear deterrent in self-defense. He quotes the response of the UN Secretary-General’s High-Level Panel on Threats, Challenges and Change to Bush’s claim of the right of preemptive self-defense:

…In a world full of perceived potential threats, the risk to the global order and the norm of non-intervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted. Allowing one to so act is to allow all.

Byers then examines the current legal status of the relatively recent issue of humanitarian intervention and the obligation to protect populations in distress, even from the actions of their own governments. One of the most important decisions of the UN Summit Meeting of September 2005 was to give a general, although highly qualified, approval to such interventions. But as Byers points out, while Kofi Annan reiterates that the “security situation in Darfur continues to deteriorate and the moral case for action is overwhelming,” the Security Council has so far agreed only to deploying a UN peacekeeping force later this year to take over from the existing African Union force, a move strongly opposed by the Sudanese government. The Council has also, as mentioned above, referred the Darfur case to the International Criminal Court.

Byers’s closing chapters on the protection of civilians and prisoners of war, and on the various UN international tribunals, are characterized by mounting frustration at the US administration’s contemptuous attitude toward international law and legal institutions. Of the Bush administration’s obsessive hostility toward the recently established International Criminal Court he writes:

Only the United States has actively endeavoured to undermine the court. With troops in more than 140 countries, a propensity to intervene under dubious legal circumstances, and interpretations of the laws of war that sometimes differ from those of other states, the single superpower feels vulnerable to international mechanisms for enforcing international criminal law. Whereas the Clinton Administration sought to negotiate protections against the abuse of international procedures into the statutes of the tribunals it helped to create, the Bush Administration has adopted an entirely hostile stance….

Since coming to office, President Bush has “unsigned” the ICC statute, pressured the UN Security Council into temporarily exempting US forces from the Court’s jurisdiction, and obtained more than ninety bilateral treaties committing individual countries not to surrender US citizens to The Hague. Bush has even signed legislation that authorizes him to use military force to secure the release of any US service member detained by the ICC. The law is popularly known as “The Hague Invasion Act.”

Since under the present ICC statute it is virtually impossible that the Court would detain a US soldier, this exceptional—even paranoid—brand of US exceptionalism can only add to the frustration of the nations seeking a fair and workable international legal system.

When the UN Preparatory Commission was setting up the world organization in London in the fall of 1945, the European colonial powers could sometimes scarcely contain their resentment of what they saw as the self-righteous attitude of the US delegation toward European colonialism and its abolition. Their resentment occasionally took the form of rather feeble allusions to the fate of American Indians; but I cannot recall a single reference to America’s many efforts at regime change in the fairly recent past. These actions are the subject of the first part of Overthrow, Stephen Kinzer’s wonderful chronicle of America’s interventions in foreign countries.

Kinzer describes three periods of American intervention: first the “Imperial Era” between 1893 and 1910 (in Hawaii, the Philippines, Cuba, Puerto Rico, Nicaragua, and Honduras); second, the “Covert Action period” between 1953 and 1973 (in Iran, Guatemala, South Vietnam, and Chile); and third, the “Invasions” since 1983 (in Grenada, Panama, Afghanistan, and Iraq). The original announced aim was to help anti-colonial patriots to achieve success, as in Cuba and the Philippines; and then, to the patriots’ surprise, the US would establish an authoritarian protectorate. The reasons for doing so were usually presented as extending the advantages of American democratic principles and protecting US security. In practice, as Kinzer shows, the principal aims were to establish the right of US business to act as it wished, to satisfy a new national ambition for expansion, and to add to the strength of the US economy.

Kinzer quotes a letter from John L. Stevens, the American minister in Honolulu, on January 16, 1893, to Captain Gilbert Wiltse, the commander of the cruiser Boston. He comments, “Its single sentence is a dry classic of diplomatic mendacity, full of motifs that Americans would hear often in the century to come.” The letter reads:

In view of the existing critical circumstances in Honolulu, indicating an inadequate legal force, I request you to land marines and sailors from the ship under your command for the protection of the United States legation and the United States consulate, and to secure the safety of American life and property.

That, effectively, was the end of the courageous Queen Liliuokalani’s resistance to the American annexation of Hawaii.

Although there were impassioned opponents of such actions in the United States, William James among them, Kinzer shows that the expansionist mood of the 1890s was already producing justifications that sound all too familiar today. American presidents and military officers, then as now, said they were intervening in struggles of “good and evil” for humanity’s sake and had God’s guidance in doing so. “The parallels between McKinley’s invasion of the Philippines and Bush’s invasion of Iraq were startling.” Kinzer writes:

Both presidents sought economic as well as political advantage for the United States. Both were also motivated by a deep belief that the United States has a sacred mission to spread its form of government to faraway countries. Neither doubted that the people who lived in those countries would welcome Americans as liberators. Neither anticipated that he would have to fight a long counterinsurgency war to subdue nationalist rebels. Early in the twenty-first century, ten decades after the United States invaded the Philippines and a few years after it invaded Iraq, those two countries were among the most volatile and unstable in all of Asia.

Kinzer’s book is particularly enlightening about the consequences of such unilateral interventions. He writes:

If it were possible to control the course of world events by deposing foreign governments, the United States would be unchallenged. It has deposed far more of them than any other modern nation. The stories of what has happened in the aftermath of these operations, however, make clear that Americans do not know what to do with countries after removing their leaders. They easily succumb to the temptation to stage coups or invasions but turn quickly away when the countries where they intervene fall into misery and repression.

Brushing aside fifty years of international law in the name of the “global war on terrorism” is a bad idea for everyone, including the United States. Violating global rules undermines both America’s authority and standing and its long-term strategic interests. An already globalized and interdependent world cannot permit a return to a situation where each nation is entirely free to act as it wishes.

To use Sands’s words, the United States, like other countries, badly needs international agreements and international cooperation to promote and protect its own interests, and cooperation requires rules. The conclusion seems plain: the United States should reengage in respecting and developing the rule-based system that it largely initiated after World War II and which has for many years served it well.

Such an approach could certainly not have worse consequences than the recent attempt to abandon the idea of international restraint and go it alone. Some US administrations have vigorously supported international regulation in the past. On April 1, 2005, Secretary of State Condoleezza Rice told the annual meeting of the American Society of International Law that the US “has been and will continue to be the world’s strongest voice for the development and defense of international legal norms.” She added that America “has historically been the key player in negotiating treaties and setting up international mechanisms for the peaceful resolution of disputes.” As Sands comments, “These are important words, but they remain just that.”

A more down-to-earth perception of the situation was expressed in May 2004 by US Senate Foreign Relations Committee Chairman Richard Lugar, who was speaking of the US Senate’s delay of some ten years in acceding to the Law of the Sea Treaty, a delay largely caused by those Americans who have argued that the treaty restricts the exploration and exploitation of the seabed. Lugar posed the question that the US has still to face:

If we cannot get beyond political paralysis in a case where the coalition of American supporters is so comprehensive, there is little reason to think that any multilateral solution to any international problem is likely to be accepted within the US policy-making structure.9

  1. 9

    Senator Richard Lugar, “The Importance of Acceding to the Law of the Sea Convention,address at the Brookings Institution, May 4, 2004.

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