Clio the cat, ? July 1997 - 1 May 2016
Practice
The world in which we now live has seen a vast expansion and proliferation of what passes for international law, extending Schmitt’s diagnosis in two directions. On the one hand, there has developed a category of law that is so perfect an illustration of Austin’s characterization of the law of nations that he himself could scarcely have dreamt of it: the notion of a right that is not, in the technical phrase, ‘justiciable’—that is, which does not even pretend to have any force of execution behind it in the real world, remaining simply a nominal aspiration—in other words, opinion pure and simple, in Austin’s terms; yet which is nevertheless solemnly denominated by jurists a right. On the other hand, the number of actions taken by leading powers as they wish, either in the name of or in defiance of international law—indeterminacy without limit—has increased exponentially. Aggression is no monopoly of the hegemon. Wars of invasion have been launched without consultation, in surreptitious collusion, or outright collision, with it: England and France against Egypt, China against Vietnam, Russia against Ukraine; not to speak of lesser powers, Turkey against Cyprus, Iraq against Iran, Israel against Lebanon. None of such actions are exempt from exacting historical verdicts. That judgement, however, is necessarily political, not jural. Since 1945 wars of this order have, among the justifications alleged for them, rarely if ever (in 1956 Anglo-French attempts cut no ice in Washington) invoked international law. That is the prerogative of the hegemon and its aides in any common operation.
A few examples will suffice. At the very foundation of the highest official embodiment of international law, namely the United Nations, whose Charter enshrines the sovereignty and integrity of its members, the United States was engaged in their systematic violation. In an Army base in the old Spanish fort a few miles from the inaugural conference that created the United Nations in San Francisco in 1945, a special team of us military intelligence was intercepting all cable traffic by delegates to their home countries; the decoded messages landed on the breakfast table of American Secretary of State Stettinius the next morning. The officer in charge of this round-the-clock operation of surveillance reported that ‘the feeling in the Branch is that the success of the Conference may owe a great deal to its contribution’.footnote26 What did success mean here? The American historian who describes this systematic espionage exults that ‘Stettinius was presiding over an enterprise his nation was already dominating and moulding’—for the un was ‘from the beginning a project of the United States, devised by the State Department, expertly guided by two hands-on Presidents, and propelled by us power . . . For a nation rightly proud of its innumerable accomplishments’—the most recent, the dropping of atomic bombs on Japan—‘this unique achievement should always be at the top of its illustrious roster’.footnote27
Matters were no different sixty years later. The 1946 un Convention states that ‘The premises of the un shall be inviolable. The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action.’ In 2010 it was revealed that Clinton’s wife, then Secretary of State, had directed the cia, fbi and Secret Service to break the communication systems, appropriating passwords and encryption keys, of the Secretary-General of the un, together with the ambassadors of all four other permanent members of the Security Council, and to secure the biometric data, credit-card numbers, email addresses and even frequent-flyer numbers of ‘key un officials, to include undersecretaries, heads of specialized agencies and chief advisers, top secretary-general aides, heads of peace operations and political field missions’.footnote28 Naturally, neither Mrs Clinton nor the American state paid any price for their brazen violation of an international law supposedly protecting the un itself, the official seat of such law.
What of the international justice that international law purports to uphold? The Tokyo Tribunal of 1946–48, organized by the United States to try military leaders of Japan for war crimes, excluded the Showa Emperor from the trial in order to lubricate American occupation of the country, and treated evidence with such disregard for due process that the Indian judge on the Tribunal, in a blistering 1,000-page condemnation of it, observed that the Tokyo trials amounted to little more than ‘an opportunity for the victors to retaliate’, declaring ‘only a lost war is a crime’.footnote29 The Dutch judge on the Tribunal admitted candidly: ‘Of course, in Japan we were all aware of the bombings and the burnings of Tokyo and Yokohama and other big cities. It was horrible that we went there for the purpose of vindicating the laws of war, and yet saw every day how the Allies had violated them dreadfully’footnote30—Schmitt’s discriminatory conception of law to the letter. The successive American wars that followed in East Asia, first in Korea and then in Vietnam, were then littered, as American historians have shown, with atrocities of every kind. Naturally, no tribunal has ever held them to account.
Has anything much changed since then? In 1993 the un Security Council set up an International Criminal Tribunal on Yugoslavia, to prosecute those guilty of war crimes in the break-up of the country. Working closely with nato, the Canadian Chief Prosecutor made sure successful indictments for ethnic cleansing fell on Serbs, the target for us and eu hostility, but not on Croats, armed and trained by the us for their own operations of ethnic cleansing; and when nato launched its war on Serbia in 1999, excluded any of its actions—the bombing of the Chinese Embassy in Belgrade and the rest—from her investigation of war crimes. This was perfectly logical, since as the American press officer for nato explained at the time: ‘It was the nato countries who established the Tribunal, who fund and support it on a daily basis.’footnote31 In short, once again, the us and its allies used trials to criminalize their defeated opponents, while their own conduct remained above judicial scrutiny.
In the latest iteration of the same pattern, the now permanent International Criminal Court set up in 2002 was urged into being by the United States, which was centrally involved in its conception and preparation, but then made sure that the us would not itself be subject to the icc’s jurisdiction. When, to the great anger of the Clinton Administration, the draft Statute was changed to make possible the prosecution of members even of a state that was not a signatory to it, rendering American soldiers, pilots, torturers and others potentially vulnerable to inclusion in the mandate of the Court, the us promptly signed over a hundred bilateral agreements with countries where its military were or had been present, excluding American personnel from any such risk. Finally, in a typical farce, on his last day in the White House, Clinton instructed the us representative to sign the Statute of the future Court, knowing full well that this gesture had no chance of ratification in Congress. Naturally enough, the icc—staffed by pliable personnel—declined to investigate any us or European actions whatever in Iraq or Afghanistan, concentrating its zeal entirely on countries in Africa, according to the unspoken maxim: one law for the rich, another for the poor.
Discriminations
As for the un Security Council, the nominal guardian of international law, its record speaks for itself. Iraqi occupation of Kuwait in 1990 brought immediate sanctions, and a million-strong counter-invasion of Iraq. Israeli occupation of the West Bank has lasted half a century without the Security Council lifting a finger. When the us and its allies could not secure a resolution authorizing them to attack Yugoslavia in 1998–99, they used nato instead, in patent violation of the un Charter forbidding wars of aggression, whereupon the un Secretary-General Kofi Annan, appointed by Washington, calmly told the world that though nato’s action might not be legal, it was legitimate—as if Schmitt had scripted his words to illustrate what he meant by the constitutive indeterminacy of international law. When, four years later, the United States and Britain launched their attack on Iraq, having had to bypass the un Security Council under threat of a veto from France, the same Secretary-General once again blessed the operation ex post facto, making sure that by a unanimous vote the Security Council gave back-dated cover to Bush and Blair by voting un assistance to their occupation of Iraq with Resolution 1483. International law may be dispensed with in launching a war; but it can always come in handy to ratify such a war after the event.
Weapons of mass destruction? The Nuclear Non-Proliferation Treaty is the starkest of all illustrations of the discriminatory character of the world order that has taken shape since the Cold War, reserving for just five powers the right to possess and deploy hydrogen bombs, and forbidding their possession to all others, who might need them more for their defence. Formally, the Treaty is not a binding rule of international law, but a voluntary agreement from which any signatory is free to withdraw. Factually, not only is a perfectly legal withdrawal from the Treaty treated as if it were a breach of international law, to be punished with the utmost severity, as in the case of North Korea, but even observance of the Treaty is open to restrictive interpretation, and if insufficiently monitored, subject to retribution, as in the case of draconian sanctions against Iran—indeterminacy and discrimination elegantly combined. That Israel has ignored the Treaty and has long possessed abundant nuclear weapons cannot be so much as mentioned. The powers punishing North Korea and Iran pretend the massive Israeli nuclear arsenal does not exist—perhaps the best commentary of all on the alchemies of international law.
Triumph of the singular
Pyongyang and Teheran are, of course, freely categorized as ‘rogue’ or ‘pariah’ states in the discourse of contemporary jural discrimination, echoing 19th-century classification of outlaw regimes.footnote32 Should we regard that as a stray, involuntary anachronism, like Article 38 I (c) that still sits in the Constitution of the International Court of Justice at the Hague, as reconstituted by the United Nations, continuing to announce its adherence to the principles of law that define civilized nations, in the shadow of a bust of Grotius? That would be an error. The ‘standard of civilization’ proclaimed—appropriately enough—in Brussels yesterday enjoys, on the contrary, a new lease of life today. We owe the first modern study of its past, The Standard of ‘Civilization’ in International Society, to an American scholar, servant of the State Department and leader of the Mormon Church, who—critical of its use to justify colonial excesses in times gone by—noted, nevertheless, the elevating role it could also play in educating non-Europeans to higher codes of moral conduct, and commended two possible successors to it: a new ‘standard of human rights’ being pioneered by Europeans, or alternatively a ‘standard of modernity’, bringing the blessings of civilization in the shape of cosmopolitan culture to all.footnote33
That was in 1984. He was prescient. In the new century, the holder of a chair in a school named after the mentor of former Secretary of State Condoleezza Rice, explaining that ‘something like a new standard of civilization is needed to save us from the barbarity of a pristine sovereignty’, proclaims human rights—above all as practised by the European Union—as that standard; and a principal offender against it, the Palestinian Authority.footnote34 Alternatively, a leading American specialist in terrorism and cybersecurity offers a more palpable updating of the notion. Structural Adjustment Plans imposed on underdeveloped countries by the imf are the contemporary equivalent of the enlightened capitulations of old that helped to bring Ottomans and others into the comity of acceptable states, continuing their work of ‘civilizational harmonization’, essential to international society.footnote35 More ambitiously still, an Iranian scholar from Denmark, denouncing Islam as an Oriental totalitarianism, has announced the arrival of a Global Standard of Civilization—gsc—as the lodestar of humanity’s advance to a better world, gaining momentum every day. We are living, he exclaims, a new ‘Grotian moment’, in which the two pillars of global civilization are ‘capitalism and liberalism’.footnote36 Nor have historians been found wanting. The most prominent, and prolific, contemporary historian at Harvard, Niall Ferguson, author of works on the Rothschild and Warburg banks, the First and Second World Wars and the history of money, restores the singular with unruffled aplomb in Civilization: The West and the Rest (2011), devoted to an explanation of all the reasons why the former triumphed over the latter.
Writing at the turn of the sixties, Braudel reiterated Febvre’s conviction that Valéry was wrong: ‘Civilizations are a reality of very long duration. They are not “mortal”, above all—despite Valéry’s too famous phrase—as measured by our individual lives. Lethal accidents . . . occur to them far less often than we think. In many cases, they are merely sent to sleep.’ Customarily, it is only ‘their most exquisite flowers, their rarest achievements, that perish, but their deep roots survive many a rupture, many a winter.’footnote37 There might be ‘an inflation of civilization in the singular’, but ‘it would be puerile to imagine this, beyond its triumph, doing away with the different civilizations that are the real personages who still confront us’. Characteristically, however, Braudel’s conclusions oscillated. In one register, the singular and plural collaborate fruitfully: ‘Plural and singular form a dialogue, complementing each other and differentiating themselves from one another, sometimes visible to the naked eye, almost without requiring attention.’ On the next page, a very different note is struck: ‘A blind, ferocious struggle is at work under various names, and on various fronts, between civilizations and civilization. The task is to tame, to channel it, to impose a new humanism on it’, and ‘in that battle without precedent many cultural structures can crack and all of them at once’.footnote38 Half a century later, we may ask, has civilization in the singular been subdued by civilizations in the plural, as he hoped it would be?
The spectacle of international law suggests otherwise. Braudel had a wide and deep comparative grasp of the material and cultural dynamics of human history, giving him an unrivalled sense of the differences between civilizations. Much less interested in their political and ideological dimensions, he identified civilization in the singular—scilicet Western civilization—too simply with just that of ‘the machine‘: essentially, technology, which he rightly thought could be adapted by any of the civilizations of the world that had survived to the present. Of the power of the intellectual and institutional order of the West, not to speak of its military predominance, he took less account.
The force of opinion
None of this, of course, means that international law is without any substance that can for practical purposes be regarded as universal. It is enough to consider the fact that no state in the world dispenses with appeals to it, if only because all benefit from at least one convention associated with it: the diplomatic immunity of their embassies abroad, respected even after war has been declared by the host country against the state they represent—what might be called the Minimum Content of International Law, by analogy with Hart’s reduction to the same of Natural Law. Needless to say, every embassy of a major state, and most of lesser ones, is crammed with personnel engaged full-time in espionage, with no legal warrant in international law. Little comfort for its theorists is to be found in such incongruities.
To conclude: on any realistic assessment, international law is neither truthfully international nor genuinely law. That, however, does not mean it is not a force to be reckoned with. It is a major one. But its reality is as Austin described it: what in the vocabulary which he inherited from Hobbes he termed opinion, and today we would call ideology. There, as an ideological force in the world at the service of the hegemon and its allies, it is a formidable instrument of power. For Hobbes, opinion was the key to the political stability or instability of a kingdom. As he wrote: ‘The actions of men proceed from their opinions, and in the well governing of opinions consisteth the well governing of men’s actions’—thus ‘the power of the mighty hath no foundation but in the opinion and belief of the people’.footnote39 It was seditious opinions, he believed, that triggered the Civil War in England, and it was to instill correct opinions that he wrote Leviathan, which he hoped would be taught in the universities that were ‘the fountains of civil and moral doctrine’, to bring ‘public tranquility’ back to the land.footnote40 We do not have to share the extent of Hobbes’s respect for the power of opinion, or indeed his preferences among the opinions of his day, to acknowledge the validity of the importance he attached to them. International law may be a mystification. It is not a trifle.
How then should it be conceived? For the most formidable of international jurists today, the Finnish scholar Martti Koskenniemi, international law is best termed a hegemonic technique, in the Gramscian sense. For Gramsci, he notes, the exercise of hegemony always involved the successful representation of a particular interest as a universal value. That, certainly, the standard of civilization attempted, and in its heyday achieved, as the vocabulary of the ‘international community’ has typically done since. International law in that sense had never ceased to be an instrument of Euro-American power. But just because it offered an ostensibly universal discourse, it was open to appropriation and reversal, claiming it for other, wider and more humane interests.footnote41 Even at the height of imperial hubris in the 19th century, after all, eloquent voices had resisted the standard of civilization: ‘The argument employed in our time . . . to justify and disguise the spoliation of weaker races is no longer the call of religion, but of civilization: modern peoples have a civilizing mission to fulfill they cannot decline’, wrote a modest lawyer from Bordeaux, Charles Salomon in 1889. More radical even than Braudel, he went on: ‘There is talk of civilization as if there were an absolute of just one: those who do so all believe they are entitled to the first rank of it. Changing Joseph de Maistre’s well-known dictum slightly, we might well say: I know of civilizations, I know nothing of civilization.’footnote42
Modern international law is thus, as Koskenniemi observes, intrinsically threaded with contestation, and as its contemporary instrumentation for the will of today’s hegemon and its satellites has grown ever more brazen, so the number of critical legal minds not only questioning but seeking to reverse its imperial use has grown too. The most lucid do so without attributing more strength to its claims than they can bear. In the mot of a distinguished French jurist, international law is ‘performative’. That is, such pronouncements in its name seek to bring into being what they invoke, rather than refer to any existent reality, however laudable.footnote43
The same dialectic, of course, has more famously been true of municipal law, invoked in Europe at least since the 17th century in defence of the weak against the strong, who created it. But there Austin’s axiom makes the difference. Within the nation-states, as they became, of Europe, there was always a determinable sovereign authorized to enforce the law, and as this authority passed from crowns to peoples, not coincidentally came also the legitimate power to change it. In relations between states, unlike relations among citizens, neither condition holds. So while hegemony functions in both national and international arenas, and by definition always combines coercion and consent, on the international plane coercion is for the most part legibus solutus and what consent is secured inevitably weaker and more precarious. International law operates to hide that gap. Koskenniemi began his career with a brilliant demonstration of the two poles between which the structure of international legal argument had historically moved, entitled From Apology to Utopia: either international law supplied servile pretexts for whatever actions states wished to take, or it purveyed a lofty moral vision of itself as, in Hooker’s words, ‘her voice the harmony of the world’, with no relation to any empirical reality. What Koskenniemi failed to see was the interlocking of the two: not utopia or apology, but utopia as apology: responsibility to protect as charter for the destruction of Libya, preservation of peace for the strangulation of Iran, and the rest.
Still, defenders of international law can argue that its existence, however often it is abused by states in practice, is at least better than would be its absence, invoking in their aid La Rochefoucauld’s well-known maxim: L’hypocrisie est un hommage que le vice rend à la vertu. Yet critics can equally reply that here it should be reversed. Ought it not rather to read: hypocrisy is the counterfeit of virtue by vice, the better to conceal vicious ends: the arbitrary exercise of power by the strong over the weak, the ruthless prosecution or provocation of war in the philanthropic name of peace?
The last working-class hero in England.
Kira the cat, ? ? 2010 - 3 August 2018
Jasper the Ruffian cat ? ? ? - 4 November 2021
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