‘We are living through the beginning of the end of international law.” These are the words of Irish Labour Party president Michael Higgins, faced with the carnage Israel is unleashing on Lebanon. The attacks’ brutality has led to a chorus of denunciations of Israel’s apparent disregard for international law.
Of course, there’s no shortage of Zionist apologists stoutly defending the actions as legal. So is Doni Remba, Chicago head of the laughably named Peace Now, correct that the war is being perpetrated “with the full and terrible weight of law”? Or is international law dying?
Such claims aren’t new. For years, liberals and leftists, including such heroic critics as Noam Chomsky, have attacked the US and its allies for “undermining” international law.
Since the ascendancy of the neo-conservatives, these attacks have become louder, and more despairing. Guantanamo, extraordinary rendition, and especially the Iraq war, some claim, signal “end times” for international law.
An eloquent recent formulation has been Philippe Sands’s book Lawless World, according to which the problem is there is not enough international law.
Socialists can learn a great deal from such work. Sands’s book, for example, invaluably lays out Tony Blair’s disgraceful legal shenanigans. But does this mean we should call for the strengthening of international law?
Frustrated by the unilateralism of recent US policy, some progressives put their hopes in the United Nations (UN) as a harbinger of neutral, peaceful law.
But the UN is complicit with imperial power. In Lebanon it ineffectively exhorts the combatants to be nice. Elsewhere, when powerful states outsource their imperialism, as in Haiti since the US-backed ousting of Jean-Bertrand Aristide, it becomes an active participant in bloody repression.
Is it actually possible that international law is part of the problem? What if we suffer from living in a lawful, rather than a lawless, world?
It isn’t surprising that some leftists defend international law, when key members of the Bush government deride it. In 2003, Richard Perle, a key figure in the Project for the New American Century, agreed that the Iraq war was illegal, but insisted that international law “stood in the way of doing the right thing”.
The unutterably vile US defence secretary Donald Rumsfeld signed off on the US 2005 National Defence Strategy, which lumped together those who turn to international “judicial processes, and terrorism”!
Imperialist elites have always included some who swaggeringly dismiss international law, and the neo-con wing of the Republicans contains an unusually vocal number. But subtler minds in the ruling class see that such posturing does not play well, and can make allies skittish.
More to the point, they know two things. First, that one cannot wish international law and its forms away. The fundamental categories of the international system around us (like Lebanon’s abused “sovereignty”) are inescapably legal categories. But second, and more to the point, international law represents no threat at all to imperial interests.
International law is usually described as a “body of rules”. If this were correct, the legality of most actions should be relatively uncontroversial, and the status of even hard cases discernable, simply by comparing the facts to the “rules”. In fact, of course, law only exists in its interpretation.
There is no action so unpopular or despicable that professional lawyers do not defend it. This is not a misuse of law – this is how international law works. For this reason, law and policy can and often do go hand in hand.
States display great creativity and imagination to legally justify their aims and actions.
A 1941 tribunal arbitration designed to minimise cross-border air pollution has been ingeniously used as a justification both for the 1983 US invasion of Grenada, and the 2001 attack on Afghanistan.
And no method is too barbaric to be justified according to “necessity”. In 1991, US troops deliberately buried Iraqi conscripts alive. The case was duly made that the action was legal.
It is not true that modern imperialists simply ignore international law. For every Perle or Rumsfeld, there is a John Yoo, professor of law in California, author of the “torture memos” used to justify depredations in Abu Ghraib, and advocate of a doctrine by which Bush’s legal powers are almost limitless.
In an epically tasteless joke, David Rivkin and Lee Casey, defenders of the legality of Guantanamo and Israeli aggression, serve on the UN subcommission on the Promotion and Protection of Human Rights. Nor are such lawyers idiots. Some are careful and erudite scholars deploying international law with panache – for monstrous ends.
Of course their arguments are disputed, and they dispute back. Law itself contains no way to finally decide for one side – there is no intrinsically correct interpretation.
The law is not static “rules” but a process, the potentially endless conflict over legal categories IS international law. Such law, then, can be used to legitimise everything it might also condemn.
The question is not which interpretation is right or wrong, but which becomes authoritative. In any dispute over ends or means, one legal interpretation does concretely win out – the interpretation of the state with the bigger guns.
International law has always been complicit with imperialism. As early as 1532, Francisco de Vitoria formulated his pioneering theories of international law as justification for the Spanish plunder of the Americas.
Almost a century later, Hugo Grotius, arguably the most important writer in international law’s history, expounded a theory of “free seas”. But this charter for liberated maritime travel and trade was written to defend an act of piracy by the Dutch East India company!
International law legitimates, and relies on, violence. States’ formal equality goes hand in hand with political inequality. States are the litigants in international law, but they are also its interpreters, and they do not have equal means of war to make their interpretations stick.
As one scholar acidly put it, referring to the US’s 1983 attack, “Grenada has exactly the same right to intervene in the US as the US has to intervene in Grenada.” No amount of legal arguing will allow Grenada to exercise its rights of intervention, whereas the US can effortlessly exercise its, claiming legality. When we criticise such actions as illegal, it is unclear what authority we are appealing to.
Even when legal decisions go our way, as when the International Court of Justice ruled against the US’s interventions in Nicaragua in 1986, or in 2004 that the Israeli apartheid wall was illegal, the oppressors simply interpret the law differently, and make their interpretations stick.
These decisions are to be celebrated, not because “the law is on our side”, but for their capacity to shift the debate beyond international law, and increase political pressure from below.
Many in the struggle against war will continue to hope for international law’s progressive application. Such debates are a welcome part of any mass movement, and it would be absurd to allow them to come between us.
Military Families Against the War, for example, has just won an important case against the government which may open up to public scrutiny the question of the Iraq war’s legality.
This is a huge victory, which may help prove New Labour’s mendacity and cynicism. What it cannot do, however, is “prove” that the war was illegal. International law can argue anything, so the answer to the question “Is the Iraq war legal or illegal?” is… “Yes”.
This is why international law is unstable ground. The Iraq war, the intervention in Haiti, the Lebanon invasion, are wrong not because they are “illegal”, but because they are unnecessary, imperialist and murderous.
China Miéville’s book, Between Equal Rights: A Marxist Theory of International Law, is now available in paperback (£19.99) from Bookmarks, the socialist bookshop. Phone 020 7637 1848 to order copies.