WHAT INTERNATIONAL LAW IS NOT
I was recently involved in an interesting debate on an article’s comment board on HNN with Chris Pettit, an international lawyer, on the direction and premises of international law. In light of that dialogue, my attention was drawn to a post by Juan Cole on Iraq where he took the Bush administration’s invasion to task on grounds Chris would probably second:
” It is not necessary, in order to criticize the way the Bush administration prosecuted the Iraq War, to deny that the Baath regime was murderous. Murderous regimes need to be dealt with through international law and institutions. If you just grabbed an unconvicted murderer off the street and lynched him, you would be a murderer in your own right. Vigilanteism is not permitted to individuals; it should not be permitted to individual states, either.”
There are a number of problems with this thesis, foremost that there is no mechanism through which international law can effectively deal with murderous regimes except through the countervailing actions of other nation-states. Collective Security is a nice theory with a highly problematic history because it assumes that states will act out of abstract altruism and justice instead of interest. If international law were worthy of the name, then Saddam Hussein would never have been able to turn Iraq into a charnel house in the first place.
The second problem is that the analogy Professor Cole uses here is entirely wrong. I cannot grab an unconvicted murderer off the streets and lynch him because I live in a state with positive laws and a system of justice to enforce them. A far more accurate analogy to international law and Iraq would be shipwreck survivors stranded on a deserted island who have agreed on a basic standard of conduct – however there is no authority to enforce or strictly define these standards. One of the survivors proves to be repeatedly violent, menacing and a danger to everyone else so after several ” close calls ” with the thug, I pick up a rock and bash in his skull before he can do anyone further harm. Have I committed an act of murder or an intelligent and necessary act of self-defense ?
Most of what passes for ” International Law ” are simply arguable moral claims advanced by interested parties. The most solidly ” legal ” core of international law is considered binding because nations-states have agreed almost universally to restrict themselves with certain provisions out of self-interest. Enforcement comes only in the cases of the most egregious violations when the moral outrage of the world can be coupled with the selfish interests of the great powers to intervene. That is about the best we can expect from such a system and if ardent advocates of International Law Theory get their way, we won’t even have that much.
International law is best taken with a healthy dose of common sense. Did the nature of Saddam’s regime morally justify intervention ? Of course it did. Do we have the resources to intervene everywhere else all at once ? Of course not but we can take opportunities to act where interest, morality and reality coincide.