What is the future of the United Nations when its most powerful member treats it with contempt? The law is still the law even when it is broken.. The conflict over anticipatory self-defense is the real reason for the crisis of the UN, not the skirmish over reform.
WHEN IS A WAR JUSTIFIED?
2005 was a crisis year for the United Nations. The conflict around preventive violence continues. The situation in Iran gives the US new arguments to twist and distort international law.
By Thomas Assheuer
[This article published in: DIE ZEIT 1,2006 is translated from the German on the World Wide Web, http://zeus.zeit.de/text/2006/01/v_9alkerrecht_u_UN.]
This story cannot be told often enough. Before the end of the Second World War in April 1945, the representatives of 47 states gathered in San Francisco and called to revolution. War was outlawed as a means of politics and state sovereignty restricted. Never again should violence start from a nation state. The “right to war” was abolished and an organization for securing peace was established and acknowledged worldwide. The founding charter carved this mandate in stone. The United Nations should “preserve future generations from the scourge of war.”
The further development of history is well known. Soon after its spectacular founding, the UN was paralyzed and divided by the veto powers in the Cold War. Years of decline alternated with years of Renaissance; success depended mostly on the good will of the powerful. For many the chronicle of errors is longer than the list of successes. Srebenica happened under the eyes of the UN. The UN failed miserably in the genocide in Ruanda, to say nothing of carelessness, bureaucratic madness, corruption, squandering of money and the scandal of leaving the chairmanship of the human rights commission to notorious torture states.
DO NAKED STATE INTERESTS TRIUMPH OVER COLLECTIVE PEACEKEEPING?
It is no accident that the smoldering crisis broke out after the Iraq war. This war was a turning point and struck the normative nerve of the United Nations, the prohibition of interstate violence. Since then, international jurists have argued whether the UN emerged strengthened from the conflict with the most powerful nation of the world or was itself a victim of the Iraq war. What will come out of the system of collective peacekeeping, the heart-piece of the UN? Will the “realists” now triumph after the Iraq war – those politicians and intellectuals who appealing to the philosopher Thomas Hobbes always claimed that foreign policy moves in a law-free zone and that naked state interests are the rock on which every order of international law crashes?
If the “realists” are right, the world society moves without any perspective, torn by an endless “war against terror”, congealed in cold panic before terrorist attacks and passing through invisible trenches between old and ascending powers. The “West” is divided in an exhausted Europe and a pitiful America – and right in the middle the UN, the toothless tiger in the golden cage on the East River in New York.
One part of this scenario is already true today. The picture of the UN that has grown to 191 members is wretched. In the 60th year of its existence, General secretary Kofi Annan prescribes a root and branch reform and declares its success as a question of survival. This reform is as important as its founding. However the great UN summit in September was disappointing; the US torpedoed it with a barrage of recommended changes. Kofi Annan’s ambitious agenda was diluted beyond recognition. The overdue expansion of the Security Council is still in the stars.
Only a few projects have a chance of success. An “Initiative for Peacekeeping” should no longer be left to fate or to states wrecked by civil war. Upon the urging of the US, a “Council for Human Rights” arises that operates so effectively that Fidel Castro and Hosni Muberak oppose it. The expert report commissioned by Kofi Annan, proposals for UN reform under the title “A More Secure World”, points the way to the future. The impressive study explains how world peace is threatened by terrorism, epidemics, famines and environmental disasters and no longer only by wars of states. From Srebenica, the lesson was drawn that the appeal to “national sovereignty” is limited in the case of massive human rights violations. The extent of the authors’ disapproval toward the United Nations and its culture of inactivity is remarkable.
All these bright reform spots on the horizon are overshadowed by the permanent conflict with the current US government. A cold war for money flares up. The Bush administration has contributed to the passing of a conditional budget for the first time in the history of the UN. That Washington has tried everything to enforce is own interests is legitimate and was always legitimate. However the sudden drop in temperature is fateful. The American UN ambassador John Bolton gives the impression he wants to incapacitate the United Nations into a specialized firm for post-military aftercare, a Mother Teresa in the evacuation hospital of the hegemon. Moreover the uncouth appearances of the anti-diplomat Bolton fuel camp formations. Many countries pursue their favorite occupation and form alliances against the “West.” George W. Bush and his cohorts describe the UN in brazen words. The assembly of “debaters” (Richard Perle) is “irrelevant” (Bush).
AMERICA CLAIMS ITS OWN “RIGHT TO WAR”
Nevertheless the top-dog conduct of the US is not central. The question concerns the future of the United Nations when its most powerful member treats it with contempt, when the former initiating power of international law no longer understands herself as the steward of the international legal order and even claims its own “right to war.”
One may draw comfort from the fact that the breach of the UN Charter in the Iraq war does not alter its validity. The law is still the law even when it is broken. “From a purely legal perspective, a breach of the law remains a breach of the law even if no sanctions are expected. The law’s existence is confirmed in its violation; the violation is illegal, not extra-legal” (Havke Brunkhorst).
The majority of international law jurists come to this conclusion. They trust an unassailable, watertight core in UN law. In their eyes, the US is a “spider” that in the past helped cover every square meter of land with a net of legal norms. Whatever the US government does, it will be caught in its own net and will be judged in the eyes of the world by that law that it produced in its heroic days when America still believed in the strength of the law and not the law of the stronger.
The picture of the normative spider’s web is very revealing. However whether the UN will survive the disdain of that superpower that alone has the military power to enforce its resolutions is uncertain. After September 11, the normative self-image of the US completely changed. While striking conciliatory tones occasionally, the Bush administration since the terrorist attacks no longer understands itself as a spider in the net of international law but as a sovereign in a state of emergency. The US wages war, war against an invisible, incalculable and all-pervasive enemy.
In this war on terrorism, international law is not cancelled as the philosopher Giorgio Agamben imagines. Rather international law is “kneaded,” adjusted elastically to the new conditions and “moralized.” The attempt of the Bush administration to overthrow a mainstay in the structure of human rights, the prohibition on torture, was an example of that adjustment. “Sharp” questions are morally necessary to protect the people from criminals with weapons of mass destruction. Mock executions through simulated drowning are not regarded as torture any more but as “extended interrogation methods” for a higher moral end.
This cynical “dynamicizing” of the law, as international law jurists say, takes the core out of effective norms and makes them situatively pliant. International law comes under the definitional power of the hegemon who only feels bound to it insofar as he can instrumentalize it for the “concrete situations” in the war against terror. A revolt
in the American Congress is necessary to stop the undermining of the torture prohibition – since the Bush administration for years flew prisoners to states whose torture cells they usually denounced in the triumphal tone of moralizing high-handedness.
However as shameless as are their attempts to “dynamicize” international law, the criticism of the Bush administration toward the UN Charter cannot be simply swept from the table. The American administration rightly claims terrorism creates a new threatening situation that the fathers of international law could not have envisioned. Every deterrence policy fails before terrorism. Terrorism also goes beyond the old term in international law of interstate violence. A terrorist attack occurs out of nothing without advance warning. On the other hand, the UN Charter was designed for antiquated, saber-rattling wars of states where the danger could b seen with the naked eye.
The point of the Bush administration is manifest. Since terrorism is invisible up to the last minute, it is high time to expand the possibilities of preventive self-defense. No one can demand that the US wait until a terrorist attack. Therefore the Security Council must extend the term self-defense according to Article 51 to allow the use of military force with a merely presumed latent danger that could later be actual. “We must bring the battle to the enemy,” George W. Bush said, “thwart its plans and counter the worst threats before they arise.”
We may not be deceived. The conflict over anticipatory self-defense, the right to bring “the battle to the enemy,” is the real reason for the crisis of the United Nations, not the skirmish over reform. The Bush administration’s diagnosis of dangers is hard to oppose. The United Nations must find an answer since an international law that doesn’t offer any effective protection loses its function of peace and order and at the end provokes national single-handed efforts that it intende3d to prevent.
Kofi Annan casually signaled that he right of self-defense could be applied for a danger that is not immediate (ZEI Nr. 08/05). This shows the nervousness of the United Nations. At the same time, he adopted the expert report that contradicted him in this point and argued very conservatively. The authors opposed American desires of expanding Article 51. The admonition to safeguard the authority of the UN and respect its claim to regulation sounds almost helpless since everyone could otherwise appeal to the right of self-defense. Surprisingly they name five “base criteria” for “proportional” preventive actions in the case of latent dangers that are not immediate.
All this is far removed from clarity and reveals the extent of the dilemma. Who brings the evidence when a nation feels threatened by a presumed danger that is not immediate? The appearance of Colin Powell before the UN General Assembly is unforgotten. The lies of the Bush administration are now recorded in history. When is an action proportional? When are appropriate means used?
Finding rules for combating erratic violence without infringing the international prohibition on violence seems nearly impossible. The UN must successfully square this circle if the authority of the Security Council should not be overturned altogether (as the legal theoretician Eric Posner recently did in his book “The Limits of International Law”). If the authorization for preventive force lies completely in the hands of nation states, the crucial pillar of the peacekeeping system collapses. The anarchy of states would be unavoidable.
IRAN’S ERADICATION FANTASIES AGAINST THE STATE OF ISRAEL
The Iran example shows the difficulty in estimating possible UN actions. The eradication threats that the Iranian president Ahmadineschad levels at Israel clearly violate international law and represent an endangerment of world peace. That Iran will have nuclear arms and that deeds will follow words some time or other is a legitimate assumption. Micha Brumlik is right: “Stimulation to genocide” is involved. The danger would be latent – measured by Iranian threats – not immediate. He Security Council is called to make effective decisions in view of the assured Russian veto since resisting dangers is only in the competence of the Security Council. What would be an effective decision? Should Israel be forced to wait until the Iranian missiles leave their silos? Should Israel watch its own threatened destruction at the last moment?
If the United Nations finds no answer to these threats, the twilight zones of international law grow while trust in its effect fades. The UN then would not be an appellate authority in the hands of the world public and those bewildered politicians who struggle for words in view of the kidnapping of their citizens by the CIA. A UN Charter assailed in its core would be merely a legal reminiscence for what the “civilized world” once dreamt when it painted a bright picture of its future.
Conservative skeptics object that respect before the law is not automatic. That respect requires a national interest. They are right. What interest should the US have in the United Nations? This is easy to say. A glance at the history books shows that the American century will not last forever. Therefore it would be a command of political wisdom that the United States at the zenith of its power should advance a peace order in which its interests will be respected when the sun of the West moves to the East and its own star has faded.
Original: When is a War Justified?