Bloggingheads, cont’d.

Henry Farrell continues our conversation about my book.  One thing he says is that international law should not be regarded as a single entity, which is either “good” or “bad,” but is a label attached to a multitude of cooperative arrangements undertaken by states, which should be evaluated on their own terms.  Security Council resolutions have no inherent moral valence, even though they are issued pursuant to the legal authority created by the UN charter, and are legally binding themselves.  The Security Council is a club of great powers, after all; it has no democratic (or other) legitimacy.  The resolutions are valuable just insofar as they alert other states that the great powers agree on a course of action, which is a useful thing for states to know.  The resolutions have pragmatic value, then, not moral value.  By contrast, the laws of war really do have moral value because they serve a moral purpose—the reduction of suffering during wartime.  Unlike the UN charter, the laws of war reflect moral norms that cross borders.

I am sorry that Henry, having read my book, thinks that I hold the contrary view, at least with respect to his broader methodological point.  The global legalists I criticize are the ones who fetishize international law, not I.  I’m not sure, though, Henry appreciates the radical implications of his argument, at least for the lawyers and states who purport to follow their advice.  No one actually says that states should be free to disregard Security Council resolutions for pragmatic reasons.  When the United States invaded Iraq, the main source of outrage—at least in some quarters—is that the United States violated the UN Charter.  Why is this?  The proper reaction, according to Henry, would be to tote up the costs and benefits of the American intervention, taking into account the fact that most other great powers disapproved of this intervention, and evaluate accordingly.  There is no harm to international law per se; the only consequence of the failure to secure a resolution is that other states learned the great powers did not support the intervention.

However, I don’t understand why Henry draws such a sharp distinction between the UN charter and the laws of war.  The laws of war just reflect a series of agreements between states, which have carefully advanced their interests through them.  States never sought to advance the interests of humanity or universal moral values: they were trying to make warfare more useful and less damaging to their interests.  Powerful states have agreed not to use certain weapons and tactics as long as two conditions are met: that any particular obligation give no other state an advantage over them, and that any other particular state reciprocate.  Otherwise, one is just setting oneself up to lose the war, or to win only with more difficulty (meaning more casualties and destruction), and what is the point of that?

It is true that the Geneva Conventions contain limitations on reprisals and insist that many obligations are not dependent on the similar behavior of foreign states.  But—and here is the important point—these rules are not actually obeyed when states go to war, at least not very much.  States have always departed from the rules when military necessity beckoned, and they are not about to stop.  It is only because people don’t or can’t understand this that American behavior in the conflict with Al Qaeda seems anomalous to them, leading them to claim that the United States or the Bush administration is uniquely evil.  But the old idea never went away: since they don’t play by the rules, neither will we.  Expect similar behavior in future wars.

The upshot is that the laws of war advance moral values only to the extent that those values happen to coincide with the interests of the states that make them.  It should hardly be surprising that this turns out not always to be the case.  The laws of war imagine a relatively morally neutral war—for example, where two powers fight it over some piece of territory that has been in dispute for reasons that no one any longer remembers.  They make little sense for wars where, morally speaking, one side really should win and the other lose.  Unfortunately, it turns out that many wars have this character—World War II is only the most obvious example, and most people are not bothered by the many violations by the allies (preeminently, the fire-bombing of civilian populations in cities) that seemed necessary at the time to counter the Nazis and prevent them from doing much worse.  For the Gaza War, it’s hard to avoid the conclusion that observers’ positions on the law-of-war violations of either side is colored by their sense of the justice of that side’s cause.  If so, this suggests that the aspirations of the laws of war—to establish a set of rules that both sides should comply with regardless of the justice of their cause—have failed.

Henry’s second point is about Kadi, an important case decided last fall by the European Court of Justice.  Kadi arose out of a Security Council order to create a committee that would identify suspected terrorist financiers.  States were required to freeze the assets of anyone on the list.  The ECJ held that the procedural rules governing the committee violated norms of European law; hence if EU members froze Kadi’s assets, they would be in violation of EU law.  It seems pretty obvious that the ECJ put EU members in the position of violating either international law or European law.

Henry thinks this conclusion is wrong, but I don’t see why.  Perhaps he is just repeating his earlier point, arguing that moral values embodied in European law should trump whatever pragmatic value the Security Council’s asset-freezing system might have.  If so, I agree with him—at least, that this is the right way to think about this problem.  Henry’s main objection seems to be my statement in my book that the Europeans in this respect are acting like Americans (and any country, in my opinion), picking and choosing among those rules of international law that they want to support and hence comply with, and those that they do not.  But what is wrong with this view?

I’m not sure what the answer is—Henry doesn’t say.  But I suspect that his view is that European norms of due process ought to have some kind of international legal status, that the Europeans are justifiably trying to demand that other states respect their norms of due process.  By contrast, he thinks that (for example) American efforts to expand the concept of legal self-defense, to include preemptive attacks on rogue states with WMDs is not justified, and was properly rejected by other states.  Maybe he is right, but this argument just boils down to the claim that Europeans have better ideas about international law than Americans do.  It’s not an argument about international law as it currently exists or how it is properly understood, or whether the Europeans obey international law more conscientiously than Americans do.

I will respond to some further arguments by Henry in my next post.