From Beijing and Moscow, Paris and Berlin, Baghdad and other capitals, from the floor of the United Nations and the streets of American cities, and from the mouths of pundits and experts, we hear the common complaint: the United States has acted illegally in attacking Iraq. The charge is correct, particularly in the formal, procedural terms in which it is most often framed. That which is not quite lawful, however, can be almost legal (or even a means of changing the law) and, thus, far from lawlessness.
True, the United States and its handful of active partners in the coalition did not obtain the Security Council’s specific authorization for their use of force against Iraq, nor has the Bush administration articulated a credible claim that this a case that falls within one of the few, narrow exceptions permitting the international use of military force without Security Council authorization.
But, contrary to what much of the chorus of criticism asserts or assumes, unlawfulness is not the same thing as lawlessness. Eschewing or rejecting prescribed legal processes is not the same thing as rejecting all legal principle. Not adhering to the international legal requirements set forth in the U.N. Charter does not lead ineluctably to the world of Thucydides’ Melian Dialogue in which the strong do what they wish and the weak do what they must.
Where some legal rules are breached, principles can still guide and constrain, justify and condemn. And many of those principles are legal or closely entangled with law. To think otherwise is to hold a naive and crude notion of law (particularly international law) and, thus, to underappreciate— and to put a risk— the roles that lawcan play in the war with respect to the war in Iraq and, more importantly, the war’s aftermath.
While a more subtly and politically sober conception of legality as a matter of degree can make it possible for law to play such roles does not mean that it will happen. Indeed, it is least likely to occur under what currently seems to be a highly plausible scenario: the U.S. administration and its closest allies insist that the evidence supports their claims that their actions were nearly legal and therefore justified or, at worst, excusable, but traditional American allies, great powers and much of the rest of the world declare themselves — disingenuously or not— to be thoroughly unpersuaded.
Almost Legal (I)— The U.N. Process
Official American statements and diplomatic efforts appear to recognize the difference between “almost legal” and “simply lawless,” and the potential moral and political significance of that difference. U.S. arguments have included or implied a claim that the circumstances surrounding the Iraq war come close to satisfying international legal conditions for permissible use of force against a sovereign state. In several specific arguments that military action is warranted, the U.S. claims of “(almost) close enough (to being legal)” have ranged across the claim’s two principal forms: near-satisfaction of a relatively uncontroversial requirement for lawful international military action, and possible satisfaction of a more controversial or emergent legal ground.
The U.S. has pursued or asserted something that approaches— but does not reach — the U.N. Security Council authorization that would make war lawful under generally and widely accepted principles. Unable to secure the requisite nine votes (with no opposition by any of the five permanent members) on the fifteen-member Council to authorize the use of force to enforce earlier Security Council resolutions’ requirement that Iraq disarm, the U.S. and sympathetic commentators contemplated the next best things.
Thus, we saw a concerted effort to round up nine votes (without unanimous acquiescence from the veto-holders) for a resolution endorsing military action. If the effort had been successful, the U.S.’s use of force still would not have been pursuant to a legal mandate from the Security Council. But the lack of legality would have seemed to be of a narrower, more technical sort. It would have been possible for the U.S. to say that its actions had the support of the requisite supermajority of the Council — a body designed to be broadly representative of the nations of the world, as well as the world’s most powerful nations. The “only” legal defect then would have lain “merely” in the fact that the minority in opposition included one or more of the permanent members, at least one of which (France) holds a veto on the basis of historical reasons more than current strategic importance.
In the same general vein, the Bush administration reportedly contemplated seeking a Security Council resolution that would have declared Iraq in violation of the obligations prior resolutions had imposed on Iraq to cooperate with inspections and to divest itself of weapons of mass destruction. Such a resolution, again, would not have provided the specific authorization for war that the procedures in the U.N. Charter restrictively prescribe. But, here too, the falling short of the legal requirement might have seemed significantly less. The U.S. could have portrayed the “legality gap” as the product not of the Security Council’s refusal to determine that legitimate grounds for the use of force existed but, rather, of some Council members’ failure to act responsibly in authorizing the necessary steps to enforce the legal requirements that they themselves had crafted, first in Resolution 687 (the 1991 document requiring disarmament as part of the cessation of hostilities in the first Gulf War), and most recently in Resolution 1441 (the 2002 action declaring Iraq in violation of its obligations under 687 and other resolutions, and warning of “serious consequences” for continued noncompliance).
Even in the absence of Security Council action declaring Iraq in violation of Resolution 1441, 687 and other resolutions in between, much the same line of argument has been available to the U.S. And the American administration has not hesitated to avail itself of it: By setting a legal standard for Iraq’s disarmament in 687 and endorsing “serious consequences” for any failure to comply, the Security Council went a good part of the way to authorizing force in 1441. The U.S. and its supporters and partners made much the same argument in connection with the use of force in the former Yugoslavia.
Moreover, advocates of the international legality or near-legality of the U.S. use of force against post-Gulf War Iraq have had yet another Security Council process-based argument at their disposal: Resolutions 687, 1441 and others are clearly the outgrowth of Resolution 678, which undisputedly authorized military action against Iraq in the first Gulf War. As some commentators see it, this provides a convincing case for full-fledged legality of the use of force in the current conflict under the “unexpired” authority in 678. (Ironically, this argument has been weakened as a political matter by the U.S.’s seemingly law-regarding impulse, and futile effort, to seek a fresh Security Council authorization for the use of force.) For many others, such lineage-tracing contains an element of bootstrapping that cannot satisfy the U.N. Charter’s exacting standards. But the analysis still grounds a powerful assertion of near-lawfulness, making the U.S. and coalition forces’ action in 2003 the clear (if not necessarily legitimate) heir to a clear legal mandate to use force.
Almost Legal (II)— Self-Defense and Defense of Others
Other U.S. arguments have evoked (if not strictly invoked) self-defense and the cooperative defense of other nations— the principal, widely accepted exceptions to the U.N. Charter’s prohibition on the use of force without specific Security Council authorization. Thus, the Bush administration has stressed the prospect that Saddam’s regime would pass weapons of mass destruction to terrorist groups, or that Iraq would attack nearby nations (a risk made evident by the invasion of Kuwait and the launching of missiles at Israel during the first Gulf War), or that the Iraqi regime was excessively entangled with al-Qaeda or similar groups. To be sure, these dangers that American and allied leaders have claimed Iraq poses to the U.S. or to states in the region fall short of the occurrence or the imminent threat of armed attack that is the conventional requirement for internationally lawful use of force in self-defense, and that was clearly met with respect to Kuwait in the first Gulf War. To the extent that the defense of more immediately endangered Middle Eastern countries are at issue in the 2003 conflict, the unambiguous formal requests from threatened states for foreign armed assistance that international law ordinarily demands have not been forthcoming.
Still, the potential impact and presumed purpose of self-defense-related arguments is to soften or reduce the perceived “degree” of illegality and, more broadly, illegitimacy. A peril that is not sufficiently grave or imminent to ground a winning legal argument still provides a good deal more to a nation contemplating military action than would a situation that posed no meaningful threat or present danger, in which case the use of force would look like little more than a Clausewitzian continuation of the amoral business of politics by other means. The permission Kuwait, Qatar and others granted to the coalition to deploy forces from their territory may not be the legally required request for foreign assistance in self-defense, but it comes pretty close, especially in light of the predictable Iraqi reaction which came swiftly in the form of Scuds lobbed westward.
Moreover, the American position on the question of self-defense has gone beyond such defensive postures to adumbrate a more assertive argument: the hoary international legal notion of self-defense requires updating to reflect contemporary circumstances, particularly post-September 11. Where the threat takes the form of another state’s acquisition and proliferation of weapons of mass destruction or its support for international terrorism (including through providing terrorists with such weapons), the traditional international legal notion of the legitimate trigger for the “anticipatory” use of force in self-defense— a state’s massing of troops along the border or a state’s clearly signaling its intention to invade — looks impossibly demanding. If effective self-defense requires “hot preemption” or some other form of anticipatory or preventive action beyond what an unreformed legal doctrine of self-defense allows, then the failure to follow the outmoded legal rules is likely not to appear patently lawless or unquestionably condemnable, even to those who see it as not lawful.
Almost Legal (III)— Intervention for Benign Ends
Official U.S. arguments for using force have incorporated elements from what is increasingly known in international law as forcible intervention for “benign purposes,” principally intervention for democracy and humanitarian intervention. Thus, the American administration has articulated a goal of “regime change” that will produce a democratic Iraq, and it has pointed to gross and systematic human rights abuses under Saddam’s rule, including the Iraqi ruler’s “gassing his own people” and the regime’s long history of mistreatment of the Kurds and ruthless repression of perceived political opposition. Neither type of argument is new to the repertoire of law-tinged defenses of U.S. foreign policy: Intervention on behalf of democracy was an oft-sounded theme in connection with U.S. intervention in Haiti, and intervention on humanitarian grounds was part of the defense of intervention in Kosovo, Somalia and elsewhere.
Here too, U.S. arguments that resonate with international legal notions are less than what international law demands for the lawful use of force. Intervention for “benign” purposes remains a contested and dubious notion in international law, not least because of the problem of self-judgment and the risks of opportunism by interveners. As critics (whether sincere or self-serving) have pointed out, a doctrine of democratic or humanitarian intervention risks cloaking in the trappings of legality and legitimacy the pursuit of agendas that are motivated by nothing more law-regarding or laudable than Clausewitz’s dictum or Thucydides’ Athenians. Moreover, the situation in Iraq before the Second Gulf War was not a paradigmatic case for intervention on either basis. The classic case for intervention for democracy is where a lawfully elected government has been ousted, recently, by the regime targeted by the intervention. And the relatively easy case (if there is one) for humanitarian intervention involves rampant ethnic cleansing, genocide or a complete collapse of order that portends massive loss of life.
Yet, again, there is much to be said for— and something to be gained by— being closer to legality rather than farther from it. Not all invocations of democratic values and human rights are hypocritical or self-serving. Interventions that credibly and convincingly seek to advance democracy and end the type of serious human rights abuses that have occurred in Iraq can be characterized plausibly as not patently lawless or thoroughly indefensible.
Law and the Balance of Evils
Official U.S. arguments about the war in Iraq also have been attuned to two other elements of international law governing the use of force: principles of necessity and proportionality impose legal limits on the use of force even where a legally adequate ground for using force exists. The U.S. and its coalition partners have been at pains to address the concerns underlying these doctrines.
In terms of “necessity,” Bush and Blair administration officials and spokesmen relentlessly asserted that the inspections process was not working and, thus, that nothing less than military action would suffice to remove the grave dangers that Saddam’s regime posed to the world beyond Iraq. In the same vein, once Saddam rejected Bush’s ultimatum for going into exile, it became clear that only an invasion would achieve the proclaimed goals of regime change that could lead to disarmament, democracy and an end to human rights abuses. On the issue of “proportionality,” explanations of coalition military strategy and methods have stressed the targeting only of military and governmental facilities and command and control systems, the sparing of civilian lives and infrastructure, and the use of improved, precision-guided weapons to achieve the coalition’s ends with minimal collateral damage.
As the combat has turned uglier, another face of necessity and proportionality-related arguments has emerged. U.S. reports of Iraqi violations or possibly impending violations of international legal restraints— in mistreating and even executing POWs, in using civilians as human shields, in possibly shooting coalition personnel who were trying to surrender, and in perhaps preparing to use chemical weapons— grew numerous, laying the grim groundwork for a possible response to charges of lawlessness and cries of moral outrage that would surely proliferate amid the destruction wrought by wayward U.S. or British munitions, or the predictable adjustments in coalition tactics and rules of engagement triggered by Iraqi forces’ guerrilla-style raids, sham-surrender ambushes, and use of civilian clothing and vehicles.
Even the most persuasive argument and proof that coalition acts adhered scrupulously to whatever rules of necessity and proportionality might be found in international law could not make military action internationally lawful where there is no legally adequate grounds for using force at all. But, once again, near-legality looks a lot better than wanton disregard for law. As official and unofficial defenders of coalition actions have recognized, resorts to force that are marginally or not-egregiously unlawful may carry less opprobrium where they can be depicted as indispensable means carefully tailored to minimize collateral harms in the pursuit of almost-legal ends.
Why a Miss Isn’t As Good As a Mile
To those whose long-standing or new-found love for international law pervades their criticism of the U.S.-led war in Iraq, the suggestion that the war’s international legality is somehow a matter of degree doubtless seems wrongheaded or perverse or suspiciously defensive of the American agenda. Law (even international law), after all, is supposed to be about stark and polar— if potentially contested and controversial— choices. The use, and the particular uses, of force in Iraq are either legal or illegal. Any discussion of a spectrum that runs from legal and legitimate to nearly lawful to utterly lawless undermines that clarity and risks condoning the condemnable. It muddies the clear legal fact: The U.S. and its partners did not obtain the Security Council authorization that was necessary to make war lawful. Shades of gray belong to the realm of politics or, on some accounts, morality. To embrace them is to concede law’s irrelevance or undermine its potential contributions.
That view is wrong on all counts. It ignores obvious features of international law and their obvious implications. The international legal system lacks singular institutions with the capacity to determine authoritatively and effectively whether an act is legal or not. Because international law does not have a viable executive, capable of enforcing the legal rules, it depends instead on what international law calls “horizontal enforcement”— that is, self-help (or other-helping) measures by those who in a more robust legal system would depend on police and prosecutors to redress or deter encroachments on legal rights. Because international law lacks strong and authoritative judicial or quasi-judicial institutions (especially where the use of force is concerned), interpretation of legal norms is a decentralized process undertaken by interested parties. Such a process is understandably prone to discord, but unevenly so. Because international law has no legislature with the ability to craft clear and binding rules, making legal norms is an informal and pluralistic process. States, groups of states and other actors often can effect legal change only through acting as law-entrepreneurs, sometimes by undertaking and defending acts that are, ex ante, illegal. A legal system that depends on such methods to enforce, interpret and make law is nearly guaranteed to produce the type of heated disputes over the line between lawful undertaking and illegal overreaching that now swirl around the U.S.-led actions in Iraq.
Embedded in many denunciations of the lawlessness or illegality of coalition action is the idea that the Security Council can play some or all of the roles of the core legal and law-making institutions of a strong and mature legal system— and thus that the Security Council’s approval ought to be regarded as almost always indispensable for a lawful use of force. That notion is either disingenuous, or a simplistic projection of a naive model of domestic legality in states with a strong rule of law, or a mistaken inference from the atypical and evanescent moment of the early post-Cold War and the first Gulf War period when the Council was not paralyzed by one or another veto-holders.
Given the institutionally weak and decentralized system of international law (which, in this respect, resembles a good many domestic legal systems), to insist that the question of an action’s legality can and must be answered with a simple “yes” or “no” is to do what those who now invoke international law to criticize the war in Iraq purport to abhor. It is to doom international law to inefficacy, either by asking it to issue definitive legal answers where it cannot, or by limiting its reach to those few areas and occasions where it can generate seemingly clear, procedurally unimpeachable judgments that are likely to be politically irrelevant (and often normatively questionable in terms of the principles underlying substantive legal doctrines).
Contrary to what such critics might fear, to accept that international legality is in part a matter of degree and a spectrum of gray does not one-sidedly cut the U.S. and its supporters a great deal of slack, much less a blank check. While this does open the door to the claims of “(almost) close enough to legal” that the American administration and its allies have made, it does not mean that such arguments will succeed or that international law has been deprived of all bite. Where international law is acknowledged to be less law-like than some might assert, imagine or hope, international legal arguments are not thereby rendered indistinguishable from the extralegal arguments of international politics or consequentialist morality. Although not unmovable or free of blurriness or dissension, the relevant international legal principles and rules provide comparatively fixed, widely (if sometimes only formally or hypocritically) accepted and relatively clear benchmarks from which “closeness” and “remoteness” can be intelligibly measured. With the opportunities that notions of “degrees of legality” or “close enough” afford to the coalition states also come dangers of a distinctively legal or law-related sort.
In Whose Court?: Facts, International Opinion and Legality
Whether the U.S., its allies, supporters and defenders will gain or lose by their resort to arguments in the vein of “(almost) close enough to legal” depends on what has yet to happen or has yet to become known. Much turns on what the degree of illegality will look like in retrospect. Will the U.S. and others be able to find the votes in the Security Council for resolutions that will confer a limited retroactive blessing on what the coalition forces will have wrought in Iraq? Failing that, will the U.S. and the U.K. and like-minded governments be able to beat back (preferably through some mechanism other than the veto) a Security Council resolution (or perhaps a General Assembly resolution, where no veto is available) squarely condemning the war as unlawful?
Will the coalition forces find physical evidence or human sources that will clearly and convincingly establish that Iraq possessed large stockpiles of chemical or biological agents or other banned weapons, had plans to use them, or made moves to pass them to terrorists? Will states in the region offer sufficiently clear expressions of gratitude or will post-war reports of extensive quiet or secret cooperation by such states in the coalition’s operations make the situation appear to resemble more closely the collective defense paradigm of the first Gulf War? Will a stable, democratic, human rights-regarding and genuinely Iraqi government succeed Saddam’s regime? Will a more open post-war Iraq generate a torrent of fresh, graphic and persuasive evidence of human rights atrocities under Saddam’s rule?
Will coalition forces manage to inflict few harms on civilians and to provide the assistance necessary to avert humanitarian crises in Iraqi cities? Will Iraqi forces resort to chemical or biological weapons or widespread and severe violations of the laws of war? Will reports of Saddam’s loyalists’ severe abuses and killings of Iraqi citizens and prisoners of war bear out?
Affirmative answers to these questions of fact, of course, would greatly strengthen the U.S. and its partners’ arguments for the near-legality and, thus, the legitimacy of their war in Iraq. But in international law’s world of decentralized authority and weak institutions, facts are funny things. What legally relevant facts do (and, in such cases as possible Security Council resolutions, what legally relevant facts are) depends on persuading foreign governments and the constituencies that influence them. This maxim is especially strong where— as is clearly the case in Iraq— there will be international disputes aplenty (both honest and duplicitous, both reasonable and preposterous) about what “really” happened before, during and perhaps after the war.
Here, the U.S. and its partners and proponents face a difficult task. Whether one characterizes it as fighting an uphill battle on unreasonably steep terrain, or climbing out of a deep hole of the U.S.’s own making, the task of persuading much of the world that coalition actions were indeed “(almost) close enough to legal” will be no mean feat. One can attribute more or less of the blame to, on one hand, American diplomatic bungling, bullying, and insensitivity or the Bush administration’s prior contempt for international law, or, on the other hand, the cynical calculations of narrow self-interest, the desperate grasping for the influence due a great power, or the awkward attempts to cover up complicity with Saddam’s regime variously undertaken by France or Russia or Germany or China. But, whatever its mix of origins, the challenge will be formidable.
If the coalition partners can produce very good facts and if the Bush administration and its supporters can do a much better job of presenting them to the post-Iraq war world than they did in arguing the pre-war case for intervention, then the U.S. and its coalition allies might — but only might— secure the politically useful outcome that is the closest that international law can come to a favorable judgment under the circumstances: much of the world, including the great powers and traditional U.S. allies, might accept that the war in Iraq was almost legal, far from lawless and thus a relatively minor breach and perhaps even a step toward developing an international legal regime that accepts a post-September 11 reconception of self-defense and an expanded notion of forcible intervention for benevolent purposes.
Such an outcome, however, is far from certain, and at the moment may seem very unlikely. The failure to achieve it would represent not just a diplomatic setback for the American and British administrations and states that have to varying degrees sided with them. It would also be a blow to the role of international law and international legal institutions in legitimating and constraining the international use of force. This is precisely the outcome that the states denouncing American lawlessness accused the Bush administration of courting, but it is one that, ironically, will also have been in part the product of such states’ political tactics having leaned so heavily on a narrow, rigid and ultimately brittle conception of international legality.