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Military intervention and sources of legitimacy

Chapter 11, Justifying War ? From Humanitarian Intervention to Counterterrorism, edited by Gilles Andréani and Pierre Hassner, Palgrave Macmillan New York, 2009¹

Pierre Buhler

“Illegal, but legitimate” were the words used in March 2003 by Anne-Marie Slaughter, leading American expert on international law, to describe the means chosen by the United States to disarm Saddam Hussein’s Iraq.¹ Legitimacy would be conferred by the weapons of mass destruction which the coalition soldiers were bound to find, and the enthusiastic welcome they would receive from the Iraqi people, and this legitimacy would be sanctioned ex post by the United Nations Security Council. The Security Council finally decided to acknowledge the new situation created in Iraq through a series of resolutions,² and to give it a legal status, but the two aforementioned grounds for legitimacy remained glaringly absent. To back up her argument, Anne-Marie Slaughter invoked the precedent of the Kosovo war in 1999, when NATO did not follow UN intervention procedures but eventually won international legitimacy in the form of implicit UN support thanks to the success of the operation. At the following session of the UN General Assembly, however, a large number of third-party states criticized this process.

This reminder illustrates the elusiveness and vagueness of this notion of legitimacy, in striking contrast with the pleasing geometry of legality, which is set out at great length in reference books, essays and manuals on international public law. However when these two notions of legality and legitimacy apply to the use of force – in other words to questions as grave as war and peace – they touch the very

1 Reproduced with permission of Palgrave Macmillan. This extract is taken from the author's

original manuscript and has not been edited. The definitive version of this piece may be found in Justifying War, edited by Gilles Andréani and Pierre Hassner, which can be purchased from www.palgrave.com

foundations of domestic political society, its security, its cohesion, its future. They also affect the essence of international political society, the rules and standards that condition its existence and the forces that constantly challenge and destabilise it.

Legitimacy and internal order

But whereas the debate on the use of force tends almost naturally to focus on its legitimization in international society, it is within the internal order that the process of establishing legitimacy is essentially rooted. It is there, primarily, and not in the eyes of the “international community”, that the choice to resort to war – that ultimate expression of sovereignty – draws its justification, its energy and its will. There are undoubtedly various routes towards this course of action, depending on the political regime of each state and the distribution of power in each society. The process is clearly more demanding in a representative regime than in a totalitarian or autocratic dictatorship. But it is the prelude to any action which, when war and peace are at stake, must be gauged, weighed up and its consequences evaluated. Admittedly, in the past, this prelude has been implicit rather than explicit, as dictated by the necessity of surprise or the constraints of effectiveness. But it is also a gamble on the certainty of success: for Machiavelli, it is victory, won by force or by guile, that bestows legitimacy, on the Prince and on his policy.

Even so, history abounds with situations where the decision to use force has been subjected to close scrutiny through public debate and democratic discussion. In The History of the Peloponnesian War, Thucydides describes in great detail the moral and strategic dilemmas that dominated the debates in Athens in 428 BC on the punishment to be inflicted on the population of the city of Mytilen, an ally of Athens in the war

against the Persians before defecting to Sparta. And in France, in 1792-93, it was amid a blaze of patriotism that the Convention decided to call for a mass uprising of citizens to defend the Republic which was under threat from Austrian, Prussian and British troops.

These debates may have been staged to create an illusion of consultation or have been an opportunity for manipulation, but this does not detract from their function of legitimization in a representative regime. It is in this phase that the opportunity to resort to force is subjected to the scrutiny of a society’s collective preferences, that the consequences are assessed, the sacrifices and the costs and risks inherent in any war venture and the necessity for it are weighed up. The criteria are the national interest, “vital interests”, and security, as well as moral considerations concerning the justice of a cause, evaluated according to the prevailing standards of a given era, both within the national and the international order. The protagonists are the politicians, naturally, but also the media, with their own prisms, opinion formers, intellectuals... Positions range widely, from disenchanted cynicism to indignant moralism, as well as patriotism, pacifism and neutralism, not forgetting the penchant for “a lovely little war”, fostered by armchair strategists and advocates of “surgical strikes”.

Be that as it may, the legitimacy of a choice as solemn as that of military intervention derives from this internal political debate. Faced with a fiercely isolationist Congress, Roosevelt encountered serious opposition to committing the United States to war alongside the United Kingdom, to the extent that he had to conceal his sympathy for the British cause so as not to compromise his re-election in 1940. It was not until Pearl Harbour that he achieved the consensus that would allow the US to enter belatedly into a war at last perceived as just. Today, in a completely different context, international action by the United States, especially when it involves

the use of force, is legitimized by internal debate on the justice of the cause, and not through endorsement by the international community for which it has little regard.

Legitimacy and international order

Actually, it is through the filter of this debate that the arguments relating to compliance with international law first have a chance of shaping the decision: an example is the controversy that divided German public opinion and the political class over Germany’s participation in the NATO intervention in Kosovo in 1999, in the absence of UN Security Council authorization. This reference leads on to the other essential dimension of the legitimacy of any political act, i.e. the legitimacy acquired in the eyes of the other members of international society and, on its heels, by what is called, for the sake of convention or convenience, global public opinion. Decisive or secondary according to circumstances, this legitimacy is factored in by every rational leader, and is even crucial when the gravest act of international life, the use of force, is at stake.

What are the criteria, what are the sources, what are the mechanisms governing the legitimacy of the use of force? What determines approval, the precondition for support, or conversely, condemnation, which bolsters resistance or opposition? The standards governing this judgment draw on several spheres, pertaining to religion, to morality, to politics and to law. They are not unrelated, they may reinforce or contradict each other, but, as other contributors to this book have written on the moral aspect, this chapter concentrates on the spheres of law and politics. Before examining the way they correlate with legitimacy, it is appropriate to analyze their political foundations. Far from being this “natural law” of divine essence whose eternal

principles theologians, jurists and philosophers have sought in vain to identify, international law derives from the need for sovereign states to organize their coexistence.

Ultimately, when it comes to war and the use of violence, international law is also an attempt to take the principles of the internal orders of constituted states which have succeeded in quelling the original violence in order to transpose them to the international order to establish civil peace and harmony. It is no coincidence that the instigator of this attempt was a professor of constitutional law become President of the United States, Woodrow Wilson, who, in 1918, wanted to govern the international order through a combination of rule of law and procedures. History only remembers the failure of his proposed system, from which the United States later withdrew, but this was the political and intellectual inspiration behind the order conceived by Roosevelt in 1945. Still based on a combination of rules and procedures, Roosevelt’s system aims furthermore to guarantee compliance by appointing a governing body made up of major powers.

The United Nations Charter, which transcribes this system into treaty language, attempts to conflate legitimacy and legality by defining the conditions of legality for the use of force: the exercise of the “inherent right of individual or collective self- defense if an armed attack occurs (…) until the Security Council has taken measures necessary to maintain international peace and security” (article 51) is one of these conditions. The other scenario is defined by the coercive measures that the Council deems “necessary to maintain international peace and security”, with respect to the title of Chapter VII of the Charter. But its authors were careful not to make the law transcendent or to submit to the legitimacy conferred by deliberation within the Council. The rules of positive law do not have an intrinsic value other than being at

the service of a higher cause, the “maintenance of international peace and security”, a supreme public good in the architecture of the United Nations. This hierarchy is reflected in the mechanisms for implementing the Charter: they do not give precedence to law either, reserving pre-eminence for political considerations and endorsing, through the privilege of the five powers’ right to veto, the deliberately political nature of the Security Council’s resolutions. It is therefore with full knowledge of the facts that the founders of the postwar international order chose, wisely for that matter, to leave the use of force within the political ambit, the legal position being left to the interpretation of each state.

The relativism of international law

In fact, the full complexity of the reality is belied by the apparent simplicity of the principles. And it is in the gap between theory and practice that the current debate on the legitimacy of the use of force is unfolding. The very inadequate definition of armed aggression opens the door to all kinds of different interpretations. What if it cannot be characterized? When the use of force is part of a cycle of reprisals? Must one wait for the first shot to be fired before acting in self defense? These questions have been asked in the past, for example in 1967, when Israel invoked the imminence of an armed attack. They were raised in different terms in the aftermath of 9/11, by the American National Security Strategy, which ostensibly makes no reference to the UN Charter. And which works on a very different time scale to define imminence justifying self-defense – several years before the threat can be carried out. Behind the cautious use of language, this is nothing other than the use of pre-emptive force, a notion traditionally tainted with illegality.³

Furthermore, hamstrung by the Security Council’s veto and dependent on a small number of states to implement its resolutions, the United Nations has often been incapable of fulfilling its collective security responsibilities. And the constraints associated with the principle of sovereignty greatly hindered its response to the civil wars and humanitarian crises that appalled the world throughout the 1990s. And finally, during the six decades since the United Nations Charter was drawn up, what has happened in practice is a far cry from the rules governing the use of force. Depending on whether one takes a broad or narrow definition, the number of violations of these rules varies between around twenty and several hundred.⁴

Within the legal community, there are two opposing attitudes to this permanent discrepancy between the law and practice. For some, the point of the rule of law, be it internal or international law, is to maintain its status even when it is violated or ignored. For others, as soon as international law no longer reflects state practice, it is no longer law, but hollow rhetoric, a “paper universe”. This second school has its advocates in the American legal community. “For all practical purposes, the United Nations Charter framework is dead”, contended Anthony Clark Arend, Head of Georgetown university’s Institute of International Law and Politics, in 2003, before adding that in this case, “the Bush doctrine of pre-emption does not violate international law because the charter framework is no longer reflected in state practice”.⁵ “The Charter has gone the way of the Kellogg-Briand-Pact”, wrote Michael Glennon, “Indeed, it should have come as no surprise that, in September 2002, the United States felt free to announce in its national security document that it would no longer be bound by the charter's rules governing the use of force. Those rules have collapsed. ‘Lawful’ and ‘unlawful’ have ceased to be meaningful terms as applied to the use of force.”⁶

The recurrent argument in this way of thinking is that international law is constantly changing to keep pace with state practice: state actions express their intentions more eloquently than their will. Consequently, when there is a contradiction between a constant state practice and a rule of international law, the latter becomes obsolete and is no longer enforced. Legally, this argument is specious. Not only does it deliberately confuse practice and custom, considered as a source of law, but it assimilates this practice with the emergence of a new customary norm, ignoring the set criteria for defining it – “international custom, as evidence of a general practice accepted as law”⁷ – and justifies without any further ado the attempts by some states to free themselves from it. But it also concludes that even norms produced by contractual law are void. And, as it happens, the United Nations Charter, since that is what is at issue here, is a multilateral treaty duly signed and ratified by some 190 states, and its dictates must be respected by all the signatories, by virtue of the principle pacta servanda sunt. No invocation of a persistent lack of observation of one or the other of its provisions can nullify this treaty. Unless they withdraw, each party is supposedly bound by the obligations contracted towards the other parties when the instruments of ratification were deposited with the depository state, which is none other than... the United States.

It is doubtless no coincidence that the proponents of this theory of “obsolescence”, to use Michael Glennon’s term, are all American. In the early 1980s, Susan Strange, a towering figure at the head of the British school of international political economy, made a similar observation concerning the founders of “regime theory”, which resulted in making the hegemony of the United States seem natural according to the rules of the global economy, and exonerating it from responsibility when things went wrong.⁸ Different advocates doubtless have different motives, and it is equally possible to find jurists who, like Thomas Franck, heavily criticize their country for violating the United Nations Charter,⁹ as well as those who see a new paradigm for the use of force emerging, a paradigm which, it so happens, gives America a free hand. By adopting this last approach, even though the rhetoric and the reasoning remain legal, we abandon the field of law to enter that of politics.

International law and politics

(...)

1 Translated by Ros Schwartz

Anne-Marie Slaughter, Dean of the Woodrow Wilson School of Public and International Affairs at Princeton University, then became President of the American Society of International Law. Op-ed in the New York Times, reprinted in the International Herald Tribune of 19 March 2003.

2 Resolutions 1483 (22 May 2003), 1500 (14 August 2003), 1511 (16 October

2003) and 1546 (8 June 2004).

3 This interpretation is explicitly re-affirmed in the report by the “High-level Panel on Threats, Challenges and Change” to the Secretary General of the United Nations (document A/59/565, December 2004), and endorsed by the Secretary General in his own report submitted to the heads of states and governments for a decision in September 2005 (“In larger Freedom: Towards Development, Security and Human Rights for All”, Cf www.un.org/largerfreedom/)

4 Anthony Clark Arend lists around twenty occurrences in “International Law and the Pre-emptive Use of Military Force”, in The Washington Quarterly, Spring 2003, p. 101. The “High-level Panel on Threats, Challenges and Change” mentions “hundreds” of instances. Michael Glennon cites the figure of 600 in this book.

5 Arend, A. Clark. Ibid.

6 Glennon, Michael J. 2003. “Why the Security Council Failed”, in Foreign Affairs (May-June).

7 The definition given in the Statute of the International Court of Justice (art.

38, §1b).

8 Strange, Susan. 1982. “Cave Hic Dragones! A Critique of Regime Analysis.” International Organisation 36(2) (Spring): 479-497; and 1987 “The persistent Myth of lost Hegemony.” International Organisation 41(4) (Autumn):. 551-574

9 Franck, Thomas. 2003. “La charte des Nations Unies est-elle devenue un chiffon de papier ?” Le Monde of 2 April.