No casualty of recent wars has been mourned more keenly than the concept of international law. By the summer of 2001, so its standard bearers believed, international law had largely achieved its rightful primacy, guiding and ordering world affairs from the UN building in Manhattan. Philippe Sands, a prominent proponent of this view, claims that after the fall of the Berlin Wall, ‘the liberal Anglo-American vision of a rules-based international system appeared to be becoming a reality.’ True, there had been some backsliding in the Clinton years, but nothing to compare with what happened in response to 9/11. According to the jurist Richard Falk, September 11 saw a terrible departure from the norm that prevailed in the aftermath of the Second World War, when, so it was said, the right to make war – the jus ad bellum – came under strict legal control:
World War Two ended with the historic understanding that recourse to war between states could no longer be treated as a matter of national discretion, but must be regulated to the extent possible through rules administered by international institutions. The basic legal framework was embodied in the UN Charter, a multilateral treaty largely crafted by American diplomats and legal advisers. Its essential feature was to entrust the Security Council with administering a prohibition of recourse to international force (Article 2(4)) by states except in circumstances of self-defence, which itself was restricted to responses to a prior ‘armed attack’ (Article 51), and only then until the Security Council had the chance to review the claim.
The ban on wars of aggression, and the strict control even of wars of self-defence, had been the centrepiece of international law, proclaimed at the Nuremberg tribunals and institutionalised in the UN. Until 2003, so the story goes, launching a war without justification was a rare and regrettable breach.
It is difficult to see how this story caught on, even among lawyers. The US invasion of South Vietnam, the bombing campaigns against North Vietnam and Cambodia, and the invasions of the Dominican Republic and Panama; the Soviet invasions of Hungary, Czechoslovakia and Afghanistan; Turkey’s invasion of Cyprus; Indonesia’s invasion of East Timor: the catalogue of wars of aggression, many leading to more fatalities than the invasion of Iraq, is long and depressing. Yet we continue to talk about international law as if we believed in its global, god-like authority. It is a habit that Danilo Zolo would like us to forgo. ‘No one expects the United Nations, or the international criminal courts, to ensure a stable and universal world peace,’ he writes, ‘for this is a Kantian utopia devoid of theoretical and political interest.’ Rather than trying to reinforce the authority of the Security Council, Zolo says we ought to give up on it. He also believes it’s time we abandoned our faith in the UN’s ad hoc criminal tribunals, in the reheated medievalism of ‘just war’ theory, and even in the notion of universal human rights, a doctrine increasingly weaponised and called ‘humanitarian intervention’. International law has failed to prevent countless atrocities, and the great powers suffer no significant penalty for launching wars of aggression, ‘preventive’ or otherwise.
Over the past two decades Zolo has developed an illuminating and unusually coherent critique of the international legal order, its aspirations, its many uses, its successes and failures. Born in 1936 in Rijeka in Croatia, he came of age in the Marxist-dominated intellectual milieu of postwar Italy. Having experienced the Italian ‘years of lead’ of the 1970s, when the rule of law was routinely undermined by terrorists, by organised crime and, most seriously, by the state itself, Zolo knows that lo stato di diritto is more than a buzzword. His work on international law is contained in a loose trilogy, beginning with Cosmopolis: Prospects for World Government (1995), followed by Invoking Humanity: War, Law and Global Order (2000) and Victors’ Justice: From Nuremberg to Baghdad, published in Italy in 2006.
Zolo’s trilogy is a critical engagement with the true believers in international law and its juridical pacifism, a number of whom – Habermas, Rawls, even Falk himself – have ended up endorsing recent wars, from the Nato assault on Belgrade to the invasion of Afghanistan. Some promoters of the liberal Kantian project – for example, Michael Ignatieff – have gone further, embracing the invasion of Iraq as a muscular extension of normative human rights, and in some cases dreaming of yet more humanitarian assaults on targets from Khartoum to Tehran.
Victors’ Justice, a collection of seven short essays, starts from the premise that the post-1945 criminalisation of war has not yielded a coherent system of international law but only a legalistic cover for the interests of the great powers. Zolo sees the UN, its authority resting on an oligarchic Security Council made up of great (or formerly great) powers, as the latest reincarnation of the Holy Alliance of 1815. Following Carl Schmitt’s critique of the League of Nations, he regards the criminalisation of war not as an advance towards world peace but rather as a regression to the age of the Wars of Religion, when the pope gave divine sanction to wars against heretics and other lesser beings. If the enemy can be declared an infidel, outlaw or terrorist, the way is clear for unrestrained violence.
The situation today isn’t so different: any country failing to toe the line laid down by the powers becomes a ‘rogue state’, against which military violence can be righteously unleashed. Restrictions theoretically apply in the form of the various treaties, conventions and other agreements on jus in bello, but from South-East Asia to Guantánamo, the great powers have mostly ignored these obstacles. And because the laws of war lag far behind the development of new weapons to prosecute it, from saturation bombing to drone assassinations, their restrictions are very often ineffectual. At the same time, the past few decades have seen a renewal of interest in the ‘just war’ doctrine. Formulated largely by the scholastics, it is now popular with the secular casuists of think tanks and academia – though no longer at the Vatican, where the pope recently criticised it as an immoral anachronism.
With the criminalisation of war comes the prosecution of war criminals at a growing number of tribunals set up by the UN and endorsed by liberal humanitarians from Habermas to Ulrich Beck. Zolo, characteristically, disagrees: ‘There is justice as tailored to the major powers and their political and military authorities, who enjoy total impunity for war crimes – and above all for wars of aggression … disguised as humanitarian wars in defence of human rights or preventive wars against “global terrorism”.’ And then there is justice as meted out to war criminals from places like Rwanda, Yugoslavia, Cambodia and, as currently at the International Criminal Court, the Central African Republic.
To Zolo, war crimes tribunals have been flawed from the start. Even at the time, the Nuremberg and Tokyo trials had their critics, ranging from Hannah Arendt to the Republican Senator Robert Taft, as well as Hans Kelsen, the positivist visionary of international law, who saw them as providing not legal redress but retribution, since their competence was expressly limited to acts committed by the losing side. (It is characteristic of international law’s liberal champions to be shocked, over and over again, that such tribunals turn out to be ‘tainted’ by politics.) The prosecutors of the tribunal for the former Yugoslavia have refused to try any Nato officials, even though the 11-week bombardment of Serbia killed an estimated 500 non-combatants. As for the alleged deterrence value of these courts, Zolo observes that the second half of the 20th century was just as full of atrocities and genocide as the first. Serb forces committed some of their worst crimes after the ICC, to great fanfare, issued an arrest warrant for Milošević.
Even by these not very high standards, the show trial of Saddam Hussein was shoddy, carried out speedily and with a narrow remit designed to prevent embarrassing facts coming out about the dictator’s long association with the US: the military aid he received during the war against Iran, for example, and the pats on the back he got from visiting US delegations even after he’d gassed the Kurds. The trial was a strictly American affair and, to be fair, was universally condemned by supporters of international tribunals.
It remains difficult to imagine officials from any powerful state being brought to justice at the ICC or any other international tribunal. But just in case Baltasar Garzón, the Spanish judge who issued the arrest warrant for Pinochet, or one of his colleagues, gets any ideas, the US Congress has passed an act authorising the use of military force to rescue any American soldier or official who might find him or herself in the dock there. True, a handful of American officials, from Kissinger to Cheney’s underlings, have to be careful when they visit Europe to avoid ensnarement in domestic courts (though not the ICC). But it’s difficult to believe that charges, if made, would stick. If the retired dictator of a small, not very powerful country like Chile could wriggle out of house arrest, the former functionaries of a great power would have a much easier time evading anything more than a well publicised serving of court papers.
While the ICC is incapable of putting an end to great power impunity, its actions against lesser rulers are often ill-considered. Recently, it has antagonised many aid workers and experts by issuing a writ for the arrest of the president of Sudan. Even if Omar al-Bashir is responsible for war crimes, the ICC’s move poses a real threat to the unstable peace in the south and west of Sudan, and may well increase the chances of state violence against civilians and aid workers. Who then will pay the price for the ICC’s pretensions to global relevance?
The trouble with human rights as an ideology, in Zolo’s view, is its failure to address collective positive rights; the relative meaninglessness of negative rights to much of the world’s population; the gulf between rights rhetoric and its realisation even in wealthy countries; the proliferation of new rights. Zolo’s goal is not so much to resolve these antinomies as to challenge the ideology’s status as a secular creed. As for the question of its universality, he is on the relativist side in that debate, seeing human rights as a purely regional product. ‘Ethico-juridical universalism,’ he writes, ‘tends, like any universalism, to intolerance, aggressiveness and denial of cultural diversity and the complexity of our world.’
Many will take issue with this, but even true believers in human rights are likely to agree with much of Zolo’s scathing critique of the doctrine’s weaponisation. The militarised application of high ideals, combined with a relative lack of interest in their consequences, has led to highly questionable interventions in Somalia, in the Balkans, and now in Afghanistan and Iraq. The core assumption that therapeutic military action all over the world is not just allowable but morally obligatory is widely shared in US foreign policy circles. Doubts about intervention are confined to the radical left, the isolationist right, libertarians and some Christian peace groups, all of whom wield negligible political influence and can be vilified without fear of electoral payback.
Zolo’s arguments show a striking convergence with those of Anglo-American nationalists who, for reasons of their own, are impatient with the admonitions of international law. Like Zolo, they see it as inescapably an instrument of politics, but they draw very different conclusions, disparaging international law as a passive-aggressive means of curtailing American power, a cheap trick practised by European elites and other anti-American cosmopolitans. (‘America versus Europe’ is the title of the final chapter of Eric Posner’s recent polemic, The Perils of Global Legalism.) Zolo, however, views the current system of international law less as a restraint on the hegemonic powers than as a lubricant for their geopolitical ambitions. Even if the UN did not approve of the invasion of Iraq, Zolo might point out, it helped with the clean-up. And there is no chance at all that it will sanction the US for violating the UN Charter in respect of wars of aggression – even with an estimated 100,000 Iraqi civilians dead. For Zolo, the UN is not a solution.
So what does he propose? While admitting that his task is primarily destructive, Zolo does sketch out an alternative. This scheme is of necessity hazy and incomplete for, as he notes in Cosmopolis, ‘in such far-reaching and complex frameworks as the international system, institutional engineering is a mere academic exercise.’ He outlines a modest solution which he labels ‘weak pacifism’, urging the abandonment of the UN in favour of a decentralised, heterogeneous congeries of regional treaties, alliances and peacemaking bodies that would not pretend to curb all military conflict but would still be an improvement on the status quo. These peacemaking bodies would not derive the bulk of their funding, as the UN does, from the great powers and would not be concentrated in Manhattan, London and Paris. His vision is explicitly anti-cosmopolitan, and so against the grain of two centuries of peace theory, which has typically vested its hopes in a supranational body able to wield legitimate force. The new system would be a polyglot Babel, impervious to manipulation by the big powers – hence its appeal.
Zolo describes this ‘weak pacifism’ as above all a realist theory of peacemaking. The phrase is a bit jarring, because the realist tradition of political philosophy, from Machiavelli to Hobbes to Carl Schmitt, has generally been conservative, more concerned with war than peace, and often overtly bellicose. But it is Zolo’s attempt to fashion a kind of pacifism from theories of violence and war that gives his project its elan. Few of his ideas are entirely new, and he acknowledges his debt to Noberto Bobbio and to Hedley Bull, another sceptic about international law who nevertheless believed in the power of vigorous preventive diplomacy in interstate relations. (Although it is now axiomatic in US foreign policy circles that early military intervention in Rwanda and Bosnia would have solved everything, there has been far less speculation about what alert diplomacy might have done to stave off the bloodbath.) In the end, Zolo argues that any meaningful counterforce to warmaking will be political and economic rather than legal, a view that won’t sit well with many lawyers.
Today, faith in international private law has been badly eroded, particularly in the global south, where scepticism about institutions such as the World Bank and the IMF is increasingly widespread. Bolivia and Ecuador have recently pulled out of the International Centre for the Settlement of Investment Disputes, and Venezuela has hinted that it may soon follow, preferring a regional centre that would presumably be less likely to find in favour of multinationals based in the global north – precisely the kind of network that Zolo envisions.
For much of its history international public law has been a thoroughly sordid business, coming of age amid the worst colonial depredations. A hundred years ago, the consensus among international lawyers was that jus in bello restrictions were more or less optional when fighting indigenous peoples in colonial wars. (In the 1950s, the French government labelled Algerian insurgents ‘hors-la-loi’, mere bandits not to be treated according to the Geneva Conventions.) Hollow-tipped bullets, deliberate attacks on civilian targets, these were legally permissible when European or North American armies were fighting ‘savages’ – the direct ancestors, as Frédéric Mégret and others have pointed out, of today’s ‘unlawful combatants’. The laws of war themselves have long been inadequate, and have arguably – and lawyers do argue it – allowed for such atrocities as have recently occurred in Guantánamo and Gaza. It should surprise no one that international law can be invoked on both sides of these issues and lawyers found to defend them.
It may be objected that the pessimism that was wholly justified during the presidency of George W. Bush is no longer warranted. Now that Obama has promised dialogue, negotiation and even a soupçon of humility, might not the project of impartial international law flourish? Obama has given key jobs to liberal lawyers with impressive achievements in the fields of human rights and humanitarian aid. Might a more enlightened United States now submit to the benign authority of the UN Charter, treaty obligations and other human rights commitments?
You might have hoped so, given the appointment, for example, of Harold Hongju Koh as counsel to the State Department, the truest of true believers in international law as a power that not only should but already does command the compliance of nations. But if Koh’s opinions on the majesty of international law are unusual in the US, his views on international politics situate him in the mainstream of Beltway opinion about the fundamental benevolence of American power. Like many other liberal lawyers, Koh has scarcely bothered to argue that the bombardment and occupation of Afghanistan are justified as acts of self-defence under the UN Charter. His only complaint about America’s support for Israel’s violations of international law in Palestine is that America is not engaged enough: Koh has likened the two sides of that conflict to two gangs armed with switchblades – a bizarre metaphor given that the US gives one of these gangs $3 billion worth of advanced weaponry every year. Extraordinary renditions, extrajudicial killings, drone warfare in Pakistan, indefinite detention of foreign nationals: Obama has no plan to discontinue them.
Obama’s international lawyers will not be very different from their predecessors: smarter, probably; smoother, definitely. Even if they write internal memos against targeted killings, they will have no voice when the all-important decision is taken to launch attacks against, say, Pakistan, Yemen or Iran, because such questions, like so many others, are not so much legal as political. Their brief is to use international law to further their country’s ever expanding geopolitical objectives, cast in terms of human rights and, more fantastically, national security. These broadly shared goals – domination of the Persian Gulf, unconditional military and diplomatic support for Israel, and most boldly, the projection of American power deep into Central Asia – can only be achieved by means of armed force. In the struggle to halt these preventive wars of aggression, international law as we know it is unlikely to be much help.