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A New Type of War
Description: Michael Byers on Blair and Bush's attempt to change international law.
Date: 05 May 2004
Author: Michael Byers Academic Director
Source: London Review of Books | Vol. 26 No. 9
'I don't care what the international lawyers say, we are going to kick some ass.' According to Richard Clarke, that was George W. Bush's response when he was told that international law did not permit the retributive use of military force after the terrorist attacks of 11 September 2001.* In fact, there was no legal impediment to the intervention in Afghanistan. A sympathetic Security Council would have authorised the action, had it been asked. Even in the absence of a UN resolution, the right of self-defence allows a country to make a necessary and proportionate response. The US suffered a devastating attack, Osama bin Laden claimed responsibility, the Taliban endorsed his acts and refused to surrender him. Only two countries opposed the self-defence claim: Cuba and Iraq. The intervention itself was hardly challenging: American casualties were minimal, foreign assistance readily forthcoming, and the transition to a new government greatly facilitated by the UN. Within a year, fewer than 10,000 US troops remained in the country. Although bin Laden and Mullah Omar were still at large, the Afghan campaign had become little more than a distraction.

Iraq was where Bush learned that the international rules on the use of military force do matter, even to a country as powerful as the US. The ability to fight distant wars depends on access to foreign airspace and bases (last year, the Turkish parliament's reluctance to allow an invading army on its territory forced the Pentagon to abandon its plans for a northern front in Iraq). And foreign treasuries can lighten financial burdens: Germany and Japan paid much of the cost of the 1991 Gulf War.

Today, dissatisfied governments from New Delhi to Ottawa have left the US military stuck in Baghdad. Iraq needs a multinational constabulary of blue berets; instead, it has Apache helicopters, tanks and trigger-happy marines. Even Britain's participation in the war was not assured until, after two months of intense negotiations, Colin Powell obtained Security Council Resolution 1441 - a deliberately ambiguous document that provided enough of a legal toehold to support Blair's position in the subsequent domestic debate.

The Bush administration employs scores of seasoned lawyer-diplomats who devise justifications for its policies - or, if plausible justifications are not possible, work to change or obfuscate the law. Their efforts are reflected in the Bush doctrine of pre-emptive self-defence. When the president first announced this policy at West Point in June 2002, he made no attempt to claim a legal basis for it: 'We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge.' But from the lawyers' perspective, the policy unnecessarily implied that existing international law would have to be violated, since pre-emption, if allowed at all, was allowed only in the face of imminent threats. In the September 2002 National Security Strategy, the requirement of imminence reappears, together with the apparently reasonable assertion that it be adapted to the 'capabilities and objectives of today's adversaries', namely terrorists and rogue states.

The British government has, until recently, steered clear of the debate on pre-emptive action. Blair insists that the primary justification for the Iraq war was the enforcement of Security Council resolutions; this is now the only plausible argument left open to him, given that Iraq was hardly a threat to the UK. Blair's argument has the tenuous advantage of being divorced from facts on the ground. It claims, essentially, that the authorisation of intervention provided by the Security Council in 1990, after Iraq's invasion of Kuwait, was merely suspended and not terminated by the ceasefire resolution of the following year. The authorisation - so the argument goes - could therefore be reactivated if Iraq came into 'material breach' of its ceasefire obligations, one of which was the obligation to disarm. When Iraq failed to co-operate fully with that obligation, the US and Britain were entitled to go to war - all on the basis of the 1990 authorisation.

A fuller analysis - and one was undoubtedly provided by the Foreign Office - would have pointed out that the 1991 ceasefire resolution terminated rather than suspended the previous year's authorisation, and that the parties to the ceasefire were the Security Council and Iraq: the coalition states were subject and not party to the ceasefire, and any material breach could not have reactivated any right for them to use force independently. As for Resolution 1441, it neither specifies the legal consequences of material breach, nor expressly authorises military action. Indeed, following its adoption, all the Council's members, including the US and Britain, publicly confirmed that it provided no 'automaticity'.

Blair didn't want to hear about any of this. Elizabeth Wilmshurst, the deputy Foreign Office legal adviser, resigned; her boss, Michael Wood, stoically remained in place and subsequently received a knighthood. Unusually, the holders of the Oxbridge chairs in international law, James Crawford and Vaughan Lowe, took a public stance against the government. The controversy continues, though Blair desperately wants to move on, but not, as he claimed in a speech in his Sedgefield constituency in March, to 'the economy, jobs, living standards, health, education, crime'. A man who fancies himself as a figure of global historical significance, he's already planning the next international campaign. The best evidence of Blair's shift in focus is his change of position on the international rules governing the use of force. At Sedgefield, he took the seemingly unnecessary step of embracing the Bush doctrine. Borrowing from the logic of the National Security Strategy, he argued that deterrence does not work against global terrorists and rogue states. Rather, the radical, risk-taking, hydra-headed nature of the threat requires a willingness to find and destroy it before it can grow: this is not just a necessity, but - according to Blair - 'a duty and a right'.

Remarkably, Blair went even further than Bush's lawyers would have the president go: back to the position initially asserted at West Point. The prime minister argued that this 'new type of war . . . forces us to act even when so many comforts seem unaffected, and the threat so far off, if not illusory'. Yet Blair is not freelancing: in February, Bush too cast aside legal niceties and reasserted the need for wide-reaching preventive action. In an unscripted television interview, he said: 'I believe it is essential - I believe it is essential - that when we see a threat, we deal with those threats before they become imminent. It's too late if they become imminent. It's too late in this new kind of war.' What seemed a blunder at the time is, in light of Blair's reiteration, beginning to look like policy - a policy that, by ditching the requirement of imminence, goes beyond pre-emptive self-defence and into precautionary war.

Bush and Blair have apparently realised that even the lawyers' reformulation will not receive the widespread acceptance necessary to change international law. Most governments cannot engage in military action abroad, and so an extended right of pre-emption is not in their interest (unless, of course, they've wholly aligned themselves with a powerful state). The lack of widespread interest, and the resulting lack of consent, would normally be determining factors in a legal system that has traditionally been based on the collective sovereign wills of the world's nearly two hundred nation- states. But Bush and Blair are not simply declaring their willingness to act illegally; instead, they're adopting a different conception of how international law is made.

This different conception is most apparent in something else Blair talked about at Sedgefield, the 'responsibility to protect'. As he explained: 'Before 11 September, I was already reaching for a different philosophy in international relations from a traditional one that has held sway since the Treaty of Westphalia in 1648; namely that a country's internal affairs are for it and you don't interfere unless it threatens you, or breaches a treaty, or triggers an obligation of alliance.' And this - Blair is explicit - means changing international law. Step one in his quest is the assertion, almost in passing, that the existing law allows for unilateral action in the face of a 'humanitarian catastrophe'. The term is drawn directly from the legal justification provided by the Foreign Office for the Kosovo war, and such a 'catastrophe' is defined by the presence of genocide, ethnic cleansing and mass rape. However, that attempt to establish a new law failed dismally. After Kosovo, the 133 developing states of the G77 twice adopted declarations unequivocally affirming the illegality of humanitarian intervention unless authorised by the UN. In late 1999, the Foreign Office suggested that the UN General Assembly discuss the idea of a carefully defined, limited right of unilateral humanitarian intervention; the proposal was attacked on so many fronts that it was quickly withdrawn. Canada's attempt to address the controversy over Kosovo involved the establishment of an independent commission charged with finding 'some new common ground'. The resulting report, 'The Responsibility to Protect', concluded that, 'as a matter of political reality, it would be impossible to find consensus . . . around any set of proposals for military intervention which acknowledged the validity of any intervention not authorised by the Security Council or General Assembly.'

Stymied at the UN, rejected by international commissions, the prime minister has decided to move beyond the requirements of state consent. With mind-boggling audacity, he's made the concept of community his vehicle: 'The essence of a community is common rights and responsibilities. We have obligations in relation to each other . . . And we do not accept in a community that others have a right to oppress and brutalise their people . . . We surely have a responsibility to act when a nation's people are subjected to a regime such as Saddam's.' Blair has also initiated a 'Countries at Risk of Instability Project' in Whitehall. An interdepartmental group has been asked to identify ways of 'improving the capacity of the international system' and advancing the 'agenda' of this notion of a responsibility to protect. The goal is to produce a final report this autumn, before the US presidential election, with a view to influencing - or perhaps counteracting - the report of a more globally representative panel, established by Kofi Annan, which is due to conclude its work in December.

Blair seems unable to grasp what it means to have a rule of law. In Sedgefield he said:

I understand the worry the international community has over Iraq. It worries that the US and its allies will, by sheer force of their military might, do whatever they want, unilaterally and without recourse to any rule-based code or doctrine. But our worry is that if the UN - because of a political disagreement in its Councils - is paralysed, then a threat we believe is real will go unchallenged.

This is a vision of power without accountability, exercised by benevolent leaders with the best interests of their subjects in mind. At the same time, it is reminiscent of a much earlier, natural law approach to international law - one that did not require broad-based consent and was instead imposed by the so-called 'civilised'. The prime minister is reaching for the international law of the crusaders and conquistadors.

All this will come as little surprise to many observers of the prime minister. But why, when Bush and Blair are hopelessly bogged down in Iraq and both running for re-election, do they feel it's worth the trouble to articulate a new vision for international law? Part of the answer lies in the continuing need for justification after the event. The other part of the answer, surely, lies in North Korea. Thanks to some extent to the current administration's abandonment of Bill Clinton's policy of engagement, North Korea has accelerated its weapons programmes and become more bellicose. Conveniently, this has helped to justify Bush's pet project of missile defence, the first, largely untested phase of which will become operational this autumn. And if missile defence works at all, its immediate usefulness would be to provide some protection against a very small number of primitive missiles, such as those North Korea might possess, thus neutralising its deterrent and opening the door to an intervention there.

Negotiations between Washington and Pyongyang are stalled, with the Bush administration steadfastly refusing to hold bilateral talks. Thirteen countries are working with the US to develop co-operative mechanisms for interdicting shipments of missiles and weapons of mass destruction on the high seas - an initiative that will increase the pressure on a government that depends heavily on trading arms. Most American troops in South Korea have already been moved to the far south of the peninsula, beyond the range of North Korean artillery. B52 bombers and attack submarines have been deployed to Guam. Whatever happens, Bush has publicly admitted that he 'detests' Kim Jong-il, and this means that the North Korean leader is unlikely to enjoy four more years in power. But what if the first US strikes on North Korea's nuclear facilities were to come sooner rather than later? Blair has already readied himself to support a war that would be strongly opposed by Russia and China. He knows that this time there would be no Security Council resolution on which to hang an argument, that he and Bush would need allies wherever they could find them, and that life would again become sticky at home.

The extended form of the Bush doctrine fits the North Korean situation like a glove. Although North Korea is not an imminent threat, it could well become one - especially if the Bush administration continues to provoke it. By selling missiles, nuclear weapons or associated technologies, it could also contribute to threats elsewhere; seen through this lens, Kim Jong-il is the proliferator Saddam might have been. And the tyranny and famine that haunt North Koreans fit nicely within Blair's conception of a responsibility to protect. Despite the absence of genocide, mass expulsion or systematic rape, North Koreans are unarguably both oppressed and brutalised.

There are millions of victims of genocide, expulsion and mass rape in northern Uganda, eastern Congo, south and west Sudan, although the presence of a few thousand British soldiers could put a stop to such crimes. Launching strikes against North Korean nuclear facilities involves risks of untold dimensions, not just to the people of the Koreas. The prime minister knows all this. But he's also a risk-taker, and he realises that his partner, the cowboy from Crawford, is not about to spend his second term policing the villages of Africa. And so, as Blair said in private during the lead-up to the Iraq war, you do what you can. Helping Bush dismantle another spoke in the axis of evil could end some suffering, and it will keep Blair centrally involved. The eager Englishman with the gift for words has been useful to Bush in the never-ending hunt for airspace, bases, soldiers and cash. Sometimes a lawyer comes in handy, even when you're kicking ass.

Footnotes

* Against All Enemies: Inside America's War on Terror by Richard Clarke (Free Press, 320 pp., £18.99, March, 0 7432 6024 4).

Michael Byers is currently a visiting professor at the University of Tel Aviv. During 1998-99 he advised a coalition of international human rights groups in the Pinochet case. He is the editor of The Role of Law in International Politics.
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