The War On Iraq and the Americanization of International Law
Many an observer of global politics took the U.S. government’s declaration of war on Iraq as a profound turn in international relations. When the Bush administration, even without awaiting general authorization by the UN and its Security Council, resorted to a “preemptive strike” in order to eliminate this Mesopotamian threat to the law-abiding human species, they sensed a breach, if not an abandonment, of international law as an institution of international politics on the part of the superpower. Advocates of the legal form of relations between nations considered the approach of the “hawks” to be “legally suspect” and therefore regrettable and alarming. And yet what is noteworthy here is that the United States for its part obstinately insisted on its right to wage war in general and to launch a “preemptive strike” in particular.
What use is international law as a system of international legitimacy, a law that all nations invoke in their relations with one another, if both the legal-minded proponents of American preemptive strikes and its European critics alike can base their arguments on it? What is the status of law in this case? And how has international law gotten its indestructibly good reputation?
Modern politicians know very well just how valuable law is in their own domestic affairs. After all, they are its masters, for it is they who “lay down” its statutes. Therefore, when they insist on the “rule of law,” it is nothing but their own authority which they render valid in true legal form by furnishing it with a police force and judiciary powers. As is well known, a politician’s foremost concern is the protection of the free person and his private property, irrespective of how much the former actually has of the latter. Disputes arising from the resulting antagonisms between competing property owners, as well as between the classes of the less well-off and those who thrive at their expense, tend to end up in violence. For this very reason, the national monopolist on the use of force compels the conflicting parties to “go to law,” which takes them directly to its courts. The courts render judgment on the conflicting interests without regard to person, i.e., irrespective of the differing resources that the competing subjects possess, thereby subjecting them — whatever their urgency — to the courts’ own examination of whether or not they conform to the law. Thus the entire political and material life of capitalist nations is established and organized as a legal relationship. From the creation of national wealth and the poverty of the masses so useful for this mode of production, all the way down to a person’s honor and family relations, every conflict is dealt with in legal form. This is precisely why politicians appreciate their legal system’s institutions and procedures as instruments of their sovereignty, so much so that they view their power’s demands on the services of society as nothing but legal claims. Yet hardly a day goes by that democratic politicians don’t fail to instruct their subjects that their being governed by the rule of law isn’t something they should take for granted. In fact, they should see this as a stroke of luck — just look around at other parts of the world, or at other periods in history! Politicians make it absolutely clear that the state could act otherwise, and accordingly call upon the citizens to regard all the good opportunities that state rule, by means of law and order, provides for the growth of property as a useful means for themselves, and in their “pursuit of happiness” to only make use of these means in accordance with the law.
When politicians turn their attention to other nation-states, they do so with precisely this conviction of civil claimants, but now with their sights set on all the legitimate national interests to which not only their own citizens owe a few good services, but the world abroad as well. Because the entities that confront each other here are sovereign state powers, which fundamentally consider the whole world inclusive of its material and human resources as a means for their own ends and consequently compete with each other over these means, international relations have traditionally been anything but a cozy affair. All participants in this competition strive to increase the reach of their control over land, people, money, credit, as well as the political “clout” derived from this, or conversely to defend it against their rivals. The successes they thereby achieve, i.e., the successful accumulation of instruments of power, give them the means to determine the future course of their competition, which is constituted by reciprocal blackmail. The competition of states has always also entailed the transition to war — small wonder when armed sovereign powers confront each other. In order to regulate their conflict-prone relations with each other, and to deal with the resulting prewar, interwar, and postwar periods, as well as with the armed conflicts themselves, the world of nation-states has jointly approved — first on a bilateral, then a multilateral and finally on a global level — and has continually amended a body of rules and procedures.
The matter of these accords is the international use of force in both wartime and peacetime on the basis of the fundamental respect that sovereigns pay each other. This respect is founded on a capitalist and civilized calculation of modern nations, which reckon to make better progress in their competitive efforts by establishing an institutionalized, international system of mutual utilization based on their ever-present willingness and readiness to use force, better than they would by actively using force in a continually predatory and incalculable way. It is solely by way of this comparison that international law has gained the reputation of being a civilized alternative to the sheer use of force between nations.
For this very reason, nation-states fundamentally recognize each other as legitimate powers, and respect the rules they have agreed upon when dealing with their conflicting interests. And even in the midst of war, when they have “failed” to find a peaceful “solution,” they feel bound to follow the agreed upon protocol. As long as it doesn’t get in the way of their final victory, they sometimes even obey it. However, the obligations states reciprocally demand of each other, as well as the authorizations they bestow upon each other, don’t touch on the reasons for their conflicting interests, which lie in their imperialist rivalry.
On the contrary: by agreeing upon a contractual definition of the legitimate use of state force, states intend to classify the various antagonistic ways in which they utilize each other as being either permitted or forbidden, and thereby to lend this distinction a certain degree of durability and reliability. This systemized body of rules for exercising influence on and utilizing each other has been dubbed “international law” for two reasons: it deals with what nation-states as “legal subjects” are “allowed” to do and it employs due legal procedures. Everything from international treaties, the competencies and procedures of international courts of arbitration and other courts, all the way to double taxation agreements, the immunity of diplomats or a legally effective declaration of war — everything is given the proper legal form of paragraphs and articles. And everybody involved in foreign policy and diplomacy on their nation’s behalf can use this as a guideline according to which they can justify their own nation’s interests, or assess critically and even — if need be — denounce illegitimate foreign interests. Despite all this, these proceedings are merely an imitation of the domestic rule of law, for international law — even in its most advanced form and with the, for the first time, undeniably globally recognized framing of its principles in the form of the UN charter — is devoid of a supranational monopoly on the use of force which could interpret and enforce it. It therefore lacks the judicial and executive power which grants domestic law its incontestable authority.
With the adoption of the UN charter, this gap has been filled by the collective authority of all those states that have recognized the charter’s statutes and thus gained the right to interpret them and intervene accordingly. In exchange for this authority, they have formally relinquished their traditional sovereign prerogative to use force, their “innate” right to wage war. Yet both the increase of their liberty to intervene on a global scale and the loss of their liberty to make uncontested use of their power — in short, the entire existence of modern international law in the form of rules and procedures set by the “community of nations” — only has force to the extent that this fine collective of law makers, who are always ready and willing to use force, is prepared to throw its weight behind the political assessments these sovereign powers bring about by their international diplomatic haggling, and to enforce them as assessments and condemnations made binding by international law. Without the effective deployment of armed forces for the maintenance of a political state of affairs that the UN has found to be desirable under international law, the struggle with and for international law would not have much value. When the UN finds a state’s interests to be “legitimate,” it merely adds moral glory in the form of legal status to a balance of power in which the claimed authority must still be asserted by force, or else be bound to fail. The UN may elevate national interests to a moral affair compliant with international law, yet only the use of force can accord this act of elevation notional recognition and thereby turn it into a highly potent global-political instrument.
This simple insight provided the basis for the nation-states unifying under the regime of the UN charter, led by the postwar world powers, and made the United Nations the agency of international law in a world in which — for the time being — the balance of power had been decisively settled. The superpowers — allies that later turned into hostile powers — jointly put an end to a situation in which the lower-ranking nations in the world had been able to assert their sovereign interests as a proviso on the superpowers’ international order. Instead, the superpowers added a general proviso to the international assortment of political regulations of the world order which they regarded as their own: from then on, all national interests would have to undergo an examination of their legality. And indeed they won respect for this proviso by means of their incontestable military force; namely in the form of the Security Council — the leading decision-making body of the UN and collective central committee of international law, so to speak — provided that they come to a unanimous judgment of all global disputes which they invariably, and correctly, related back to themselves. After all, they were customarily the very instigators of these disputes. However, to the extent that the rivalry between the great powers — which has the potential of another world war — prevented unanimity in the Security Council, they conceded each other the right to a veto, with the intention of making sure that no unwanted interest from the enemy camp could gain international legal force. The superpowers had already made this mutual concession at a time when they were still allies united in a war against the German Reich, and were preparing the formal postwar order under UN law. But it was only when the Security Council became the legal superstructure for the confrontation between the two hostile blocs, i.e., for the “stalemate” based on their nuclear conflict, that this right gained its true significance. Here, the right to a veto held by the United States and its European satellite states was a token of their war victory, which reserved for the permanent members of the Security Council the exclusive right to command the mobilization of force within the newly-founded “community of nations” while treating the rest of the world of nation-states as subjects under this regime. The veto right conceded to the Soviet Union, which — together with the nations in its bloc — eluded the interventionist regime of the postwar order institutionalized via the UN and commanded by the imperialist states, was the “legal consequence” of the sovereignty which the Soviet Union maintained through its weapons.
Throughout the time of the “conflict between East and West,” the powers of the now historical “bipolar” world struggled intensively to overcome the strategic and tactical constraints of their military standoff in order to finally stop having to respect the enemy’s interests — a respect compelled by their military stalemate. As long as neither of the hostile blocs could gain a decisive advantage, this military “deterrence” indeed worked. It provided the foundation for a whole “policy” named thereafter: each side took the enemy’s destructive potential into account, provisionally accepted its existence, all the while endeavoring to work out calculable “scenarios” in which an advantage could be gained without crossing the threshold to war. At no point in time did the hostile camps neglect their battle for the moral high ground within and by means of the common institutions of international law. Not once did they miss a chance to cast doubt on the right of the rival might to carry out its political maneuvers. With the appropriate democratic fundamentalism, the countries of the “free world” denounced for their part the interests of the socialist political system as illegitimate, and along with them this system’s very existence. The United States and its world war alliance in the form of NATO always made a point of condemning all diplomatic commerce with the “unlawful regime” in the “evil empire” as being in essence a contradiction to international law — at least to the spirit of it — while in their contact with the USSR adhering to its letter only with great reluctance and “for the sake of peace,” meaning out of respect for the Soviet second-strike capability. By contrast, the Soviet leaders, on the basis of their sensible “evaluation” of the imperialist enemy, could very well imagine an eventual nonviolent “rivalry of systems” in “peaceful coexistence”.
Even at that time, the United States regarded the interest of the “West” in the elimination of its Soviet rival power — be it with a “bang” or with a “whimper” (Reagan) — as its indisputable right and as a “nonnegotiable” claim. With the same ferocity, it demanded lead command of a stable regime of control over the global system of force, i.e., who has which and how many weapons and under what conditions they may be used. The United States did nonetheless negotiate, within and without the UN, yet all the while never budged an inch from its imperialist principles. So long as the execution of American interests was restricted by the presence of Soviet military power, the United States, tireless diplomat of the “cold war,” tried to gain from its enemy as much as possible on the negotiating table of what a “hot war” could not force out of it. To this day, America’s interests and demands remain unchanged. For this reason, its political participation in the UN committees’ various consultations, following the procedures delineated in the UN Charter, has never been anything but rock-solid war diplomacy. What has changed, however, with the abdication of the rival world power, which for an extended period of time had managed to elude being controlled and utilized by the United States, are the circumstances which the fanatics of an American international law are faced with nowadays.
After the self-elimination of the Soviet Union, the United States confronted the “Community of Nations” with a one-of-a-kind offer. By adopting a “new world order” secured by the Americans, the UN was finally to overcome its congenital defect, inherent in the legal form of the UN charter. Since the addressees of the charter consistently have reasons and the means for using force against each other, a universal, global “ban on the use of force” between nations, including all exceptions thereof approved by none other than the Security Council, and furthermore all other international rules of etiquette intended for violent political rulers, will only be taken seriously under one condition: a global sovereign is required who oversees and enforces UN statutes. According to the view of the United States, it is only by means of such a powerful regime of control under its leadership that the world will be brought closer to truly law-based international relations and their disciplinary blessings; only in this way will the otherwise fictitious condition of international law be overcome.
And indeed, as it demonstrated soon after World War II in the Korean War, the American world power has never lacked the will to direct the global-political line of the UN in accordance with its own needs, only to then carry out the legal implementation of American interests as international imperatives. Yet as long as the UN constituted the legal form of the East-West conflict, the United States not only worked hard to rectify this unsatisfactory balance of power, but also considered the corresponding international legal situation to be entirely inadequate — and only tolerated it.
Now that the big confrontation with the signatory states of the Warsaw Pact has been resolved and replaced by innumerable smaller conflicts; in a world free of “bloc discipline” in which imperialism is legitimized as being the only possible alternative, the United States is attempting to treat the balance of power in this “unipolar” world as being settled once and for all, and to turn the interests of this great nation into an imperative for global affairs, heedless of other nations’ interests — just as it had always deemed appropriate. International law is thus finally to be given the meaning the United States had always intended for it and can only now make a reality: the formalization of the American global order of war and peace. With its “offer,” the United States is striving to assume both the authoritative role of global monopolist on the use of force and enforcer of the UN charter. This would finally put an end to all the disputes between the “community of nations” and the solely authorized executor of the charter as to how it should be interpreted when it comes to the establishment of peace and order. Consequently, the United States would also be discharged from the paradoxical position — so inappropriate for its power status — of being both the commanding executor of international law as well as being subjected to it, formally equal to all the others.
The United States did not hesitate to set a precedent for demonstrating what is the greatest political mistake that one can make under the rule of an international law that “takes itself seriously” (Bush): the “dictator” Saddam Hussein (as well as his Serbian colleague, Slobodan Milosevic) was a sovereign subjected to UN supervision and international law and hence to the competent judgment of the state power which can claim with the greatest credibility to possess the power to define international law. By making strategic calculations incongruent with those of America, Hussein misjudged America’s unconditional and nonnegotiable willingness to prevent all attempts to evade its now unfettered regime of control over the globe. He thus became a “case” which the United States used to exercise a novel combination involving the making of power claims, having them canonized through international law, and then utilizing the law for its war diplomacy. Although Saddam’s iron fist was once welcomed by the Americans some time ago, and despite the fact that his anti-Islamic war against Iran received the blessings of the United States, he found his way into the political rogues’ gallery of all later U.S. administrations, irrevocably and without any prospect of rehabilitation, through his obstinacy in the face of American directives while pursuing his self-approved national reunification project in Kuwait. The United States therefore made a test case out of him for the question, to what extent could America turn its power interests into judgments of international law. It also thereby assessed what the veto rights in the Security Council were still worth. After all, with the collapse of the economic basis of its military might, Russia had lost the material basis of its veto right, while the old political meaning of France’s and Britain’s veto rights had disappeared along with their common Soviet adversary. In the end, it turned out that — surprise, surprise — simply no one was prepared to legally deny the most powerful power the right to go to war, and that when a superpower powerfully compels a convention or pushes through a dictate heedless of the interests of other states, it can ultimately secure for itself the moral bonus of international legitimacy by gaining the recognition of a “community of nations” that retreats in the face of it.
In their first war on Iraq, the American state power thus in fact maintained the appearance of having bound the use of its military might to the formalities of international law. It thought it important to first justify its attack on Saddam Hussein by referring to the right of Kuwait and its “friendly protective power” to self-defense in accordance with Article 51 of the UN charter, and secondly to use diplomatic pressure to get a resolution passed in the Security Council legally authorizing its actions. The United States got approval from the New York–based headquarters of international law for everything it wanted — for the no-fly zones, for its sanctions regime, for Iraq’s disarmament by UN inspectors, and for the continuous state of siege with which it eventually brought the Iraqi economy to its knees. Getting this approval always involved legal bickering of varying intensity with the UN, and the United States knew very well that all this was more than just a moral justification for its regime of control over the Middle East. Once the legality of such a regime has been internationally acknowledged, this legality no longer merely idealizes superior power, but becomes an effective component of global diplomacy in very practical terms. It provides new criteria for assessing what counts as deviant behavior and good conduct on the part of states, and provides its own set of good “reasons” and “unquestionable necessities” for how to deal with candidates under scrutiny.
The American protective power over international law was never entirely satisfied with the acceptance its offer had received from the “community of nations,” despite the fact that it had taken all imponderables into account. It always intended to use the instruments of its power to maintain control over every region in the world in which America had an interest, while showing respect for international law through its willingness to interpret it as the legal expression of American interests, and conversely to interpret American interests as nothing but the realization of international law. The respect America was prepared to show for other UN members— unless they lost it by their anti-American behavior — was even supposed to include their right to contribute both to the definition of what constituted a breach of the rules and to the execution of this judgment.
To this day, the United States has never seen its offer accorded sufficient respect. The rest of the powers in the Security Council, along with other lesser imperialists, evidently don’t accept the role they have been assigned as helpful assistants in the American interpretation of international law, nor apparently do they see themselves permanently excluded from the political and moral decision-making process in which global power relations are defined. In the American view, these powers are abusing valid UN formalities in order to downgrade the special dominant U.S. position in terms of the power it commands, and hence in terms of international law. They actually expect the world power to subject itself to irrelevant international courts, and fail to see that every attempt to “deter” “rogue regimes” from pursuing unlawful activities still treats them — formally and illegitimately — as acknowledged powers, and thus they refuse to recognize that the only proper treatment for the likes of Saddam is disarmament and forced capitulation. The European member states of the UN, above all, periodically urged the United States to renew its legal justifications for the sanctions regime and its “low-level warfare” on Iraq. Several of them even went as far as promising Saddam a way back into the league of respected nations — the same statesman who had taken the liberty of actively challenging, with his war on Kuwait, the American right to control, and who had even survived the supreme global power’s just counterwar and remained in power. It was precisely these acts that made Saddam such a unique criminal in the first place.
In the run-up to the second war on Iraq, the Europeans and Russians pursued their own strategic calculations. By both utilizing and observing the rules and procedures of international law, they interfered with the matter of Saddam, despite the fact that the United States, for its part, had called on them to follow orders. The Europeans and Russians were thus at odds with the fundamental, since exemplary, significance that the second Bush administration had accorded this case. According to this view, what compelled America to go to war was Saddam’s insubordination and defiance of the world order and the control regime that America claims to exercise in the region, a regime on which it insists expressly and with its entire threatening military potential; which it enforced by means of a veritable war; and which it rounded off by outlawing Iraq in terms of international law. The United States considered Saddam’s actions an attack on the integrity of its power, which — if allowed to happen with impunity — would cause it to lose global credibility, i.e., blackmailing clout. The superpower’s moral assessment of Saddam and his politics tallied with its fundamentalist claim to power. It legally assessed the power relations between Iraq and itself — two sovereign states — as being tantamount to the internal relationship between state lawmaker and lawbreaker. In other words, the United States considered Saddam a criminal, and his behavior a violation of international law, which the United States secures with its power and which will only be restored by the unconditional submission of the evildoer. Because the American power utilizes international law as an instrument for its strategic calculations, it vests it with the elements of judgment and execution indispensable for any true law, in order to add political and diplomatic clout to its moral condemnation of a national wrong. This is the manner by which offences against the order established and maintained by the prevailing imperialist interests, and institutionalized in international law, promptly become offences against higher, moral principles and supreme values. In the eyes of the American defenders of all that is true and good, this makes Saddam’s submission nonnegotiable.
The strategic angle under which the world power suspiciously probes the entire system of powers on the planet in light of its interests in global control, and under which it perceives both the current global threat and America’s vulnerability, quite logically finds its expression in how the United States legally defines the international situation. Since 9/11, America’s strategic view also includes potential risks posed by hostile networks and the support these networks might possibly be receiving from any of the notorious “rogue states.” American politicians now regard possible risks as real threats, real threats as imminent dangers, and dangers as legal grounds for their incontestable authority to wage preemptive wars — all this is a piece of cake for these politicians who replicate, in the legal field, their own “risk analysis.” Their method revitalizes the19th century “Caroline case” which permits, beyond the right of self-defense included in the UN charter, anticipatory self-defense in the face of force “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” (Daniel Webster, U.S. Secretary of State, correspondence with Lord Ashburton, British Foreign Minister, 1847) According to the majority of the well-informed public, no single feature of this state of emergency was present in the case of Iraq; yet the White House’s determined legal interpreters didn’t hesitate a second to make use of their power to define international law, a power that not only encompasses the legislation and the interpretation of the law they enforce, but also covers the circumstances and possibilities of the real world. “In the so-called Bush doctrine of September 2002 … the thesis can be found that what was an imminent danger had to be defined with respect to present circumstances. Today, the use of weapons of mass destruction had to be taken into account at any time” (International law expert quoted in the Frankfurter Allgemeine Zeitung, January 10, 2003). From this perspective, the world is incessantly threatened by “imminent” dangers; a “preemptive war” to avert a perceived threat is therefore always justified, so that in the end preventive warfare for the purpose of fighting deviant political endeavors within the world of nation-states must be made the standard tool for responsible enforcement of international law.
In the face of such a dramatic situation, lack of proof shouldn’t impede the verdict and its necessary enforcement. On the one hand, this need not be feared in the case of Iraq because the perpetrator and his offense, as well as the way he was dealt with, produced the missing evidence virtually automatically. From a factual point of view, Saddam trespassed against the world order by doggedly defying America’s control over the region around Iraq and summoning up his own means of power in a hostile way. Therefore, his continued infringement of international law was apparent as long as his total diplomatic and military surrender was still a long way off. As long as he didn’t surrender, he isolated himself and refused the cooperation requested by the community of the law-abiding under U.S. leadership — quod erat demonstrandum: “…even if this doesn’t amount to the legalistic evidence required in court” (Secretary of State Powell). On the other hand, Powell couldn’t wait to present — in true “legalistic” form and in the fashion of a Hollywood courtroom drama — his clandestine services’ efforts at collecting and forging evidence as proof that the obligation imposed by the UN to disclose all relevant information and to cooperate had been violated. This was intended to make it very difficult for the “fifteen Security Council members who will have to pass judgment” to say no to a war that was legally irreproachable.
Several Security Council members were less than enthusiastic. They invoked their traditional legislative rights, insisting on their authority to intervene. They therefore disputed America’s claim that an immediate military strike was legally justified, embroiled the Americans in discussions, wrung ambiguous resolutions from them, quarreled with them over the legal dimension of Saddam’s offenses, the evidence provided, the prolongation of inspections, and the proper diplomatic tones in their dealings with each other. In short, they dragged the United States into a lengthy legal discussion, which the latter — not incorrectly — interpreted as bold-faced anti-Americanism, albeit in legal guise. But it was an anti-Americanism that restricted itself for good reason and as much as possible to legal argumentation, and which wouldn’t dare go so far as to openly defy the American superpower.
The United States conversely made it clear that its offer to establish an identity between UN international law and American interests by means of its world power was in fact meant as an ultimatum, thus clarifying the true “legal situation”: if the UN and the nation-states assembled in it refuse to give their blessings to the American war on Iraq, then they and their interests will become irrelevant. If international law becomes separated from American executive power, it will no longer be law, since law is in essence nothing but an accessory to and a product of force. If the UN allowed this separation to happen by refusing its consent to a resolution justifying the war, then it wouldn’t be taking itself seriously. America thus informed the UN that it had only one chance of survival as an association of nation-states: it must appropriately formalize the power relations that the only remaining world power intends to establish; it must become the forum for the recognition of these relations through international law and provide diplomatic allegiance to “prevailing opinion.” Without America’s military power, the “community of nations” would be nothing but an “irrelevant debating club” (Bush), and UN law would no longer even be an imitation of actual legal relations.
So it doesn’t come as a surprise that many a representative of a differing legal standpoint faced with subordination called the stance taken by Washington’s “unilateralists” a breach, or even the demise of international law. And indeed, the United States has set about putting an end to international law’s appearance as a set of obligations freely adopted by national sovereigns, and has confronted the world of nation-states with an ultimatum: either unbridled license and arbitrariness will prevail in international relations — in which case the “rule of law” to which all nations claim to aspire is out of the question; or the community of nations is willing to help the rule of law prevail under the divinely willed leadership of the United States — in which case nations can no longer be allowed to sovereignly define what counts as good and evil in international affairs.
The United States is convinced that might makes right, that legality is something which automatically accrues to incontestable power. And the United States commands the necessary powerful instruments to make this conviction come true. So it neither violates nor abolishes international law when insisting that “the road this nation takes does not depend on the decisions of others” (Bush); rather, it advances it in the most appropriate manner. As a fan of each and every idealism that proves convenient for the power in charge, the United States has every reason to believe “that strong leadership will always find its supporters” (Blair), and that this holds true for moral questions of world order as well: the strongest power authorizes itself to define the legal situation, and all others are urged to affirm it. They must only keep in mind that supporting good in the world does not entitle anyone to make any claims, but is instead the unquestionable duty of every law-abiding community.
America’s overt appropriation of exclusive international legislative and executive power to define and execute international law affects all other nations’ interests. On pain of their permanent irrelevance, the second-league imperialist nations and the UN have been demoted to the supreme power’s compliant legal community. This has made one thing perfectly clear to them: in reassessing the traditional authorities and jurisdictions of its co-counselors and co-founders of international law, the United States is also reevaluating the validity of their interests and all the diplomatic procedures based on them. Until now, America has always shown a certain degree of consideration for its former “partners in leadership,” a consideration institutionalized in the procedures of international law. The European powers traditionally participated in the international decision-making process; they enjoyed a degree of importance as formative members of the United Nations, and saw their global interests translated into vested rights without a hitch. The various European governments may have had many a dispute with the United States over these rights, but the existence of these rights always remained undisputed. But now, America has determined this institutionalized consideration for its partners’ interests to be no longer acceptable for the campaign of establishing the “enduring freedom” of American global rule.
For its own security, this rule requires the permanent and unassailable sole leadership over the planet — and the United States has only recently let the world know that it will take this strategic road into the future. It has learned two very fundamental lessons from its arch enemy’s self-elimination: first, the extension of capitalist competition over the entire globe has not yet brought about idyllic circumstances, but is still marred by many inconveniences; and secondly, America no longer has to sit back and accept any tampering with free global competition. The way the United States sees it, an ideal competition is one from which it emerges as the just and fair winner. In order to achieve this, and in order to keep the inevitable losers of limitless global competition in check, strict control and a boundless need for force are required. In the future as well, complete, i.e., “globalized” capitalist competition of nation-states and capital will need to formalize and systemize this force, and make use of it in due legal form. For this reason, the United States doesn’t want to do away with international law, but with the international “cacophony” in applying it, which according to the United States is where its shortcomings lie. With its power, America intends to establish a kind of legal security for global capitalist business that everybody can rely on, both those willing to submit to the new world order as well as the defiant opponents of international law who are threatened with severe punishment — the Saddams and Kim Jong Ils of the world. And the enforcement of this new international legal order under the exclusive control of the United States — be it against its proclaimed enemies, be it against its former allies whose allegiance and subordination are now called for — turns every case into a precedent.
The lesser imperialists affected can on the one hand well understand that the conditions of global business require strict control and the permanent readiness to use force, not least when the most fundamental resource of all capitalist business — oil — and its Muslim administrators who are always arousing suspicion are at issue. On the other hand, in the case of the war on Iraq, they were excluded from enforcing this control and from having a say in questions concerning the purpose, type and consequences of the war. Nor were they given any say in how the benefits of this forcible reordering of the oil region were to be distributed. Instead, the Americans monopolized all decision-making power for themselves. All this renders the Europeans’ visions for world order, for which they are likewise constantly ready and willing to go to war if they deem it necessary and expedient, simply void. Neither were they consulted, nor did they have the guts to actually insist on political co-determination while confronting the United States, and therefore took refuge in challenging the legitimacy of the way the Americans handled things. Where they could not obligate the American power to take European interests into consideration, they insisted that the United States return to the formalities of shared legal UN procedures. With skillful diplomatic maneuvering, they attempted to qualify the superpower’s self-authorization and bind the United States to resolutions to which it was only willing to agree on the condition that it interpret them as it pleased. By debating the legitimacy of the war, they tried to compel the United States to give heed to European interests just as the United States had put an end to this old custom and was about to establish a new set of rules for the “community of nations.”
The United States has now presented itself and the “coalition of the willing” as the sole authors, protectors, and agents of this new agenda, and has demanded that its own special status be acknowledged. Just as the establishment of the UN was intended to put an end to the right of sovereign nations to use force in their affairs, the United States has now set out to subject the remaining veto rights of the Security Council’s permanent members to a fundamental reform in the spirit of Americanized international law. In opposition to the demand of the Europeans that the use of force against proclaimed outlaws such as Saddam be alone the result of free agreement among the relevant authorities of international law, i.e., the result of their own participation in such matters, the United States emphasizes the binding legal character of any military action it deems necessary. For the sake of both the legal force of international law and of the respect paid to it, which can only be guaranteed by (America’s) uncompromising enforcement, any freely calculating, political way of dealing with it must be ruled out. The United States therefore takes the European governments’ insistence on traditional veto rights in times that call for the mobilization of all available law enforcement agents to be both a calculating abuse of petty formalities and a downright sin against the spirit of international law. Thus both the United States — ready and willing to use its power — and those European nations looking to curb the American urge to establish a monopoly on war invoke the articles of international law. The peculiarity of these articles, however, is that they concede both camps the legal correctness of their respective “arguments.” Yet the party that, when it comes to international law, insists on its binding character and enforcement and has the power to do so is a little more right. Whereas the UN charter understood the subordination of states under the global “rule of law” as a sovereign act, America has made clear in its references to the legal situation that such a plain contradiction embodied in a solemnly declared charter may be convenient for idealizing the existing system of force and using it as a diplomatic lever, but is unsuitable in times when a state deploys legitimate force requiring command and obedience.
Through the disputes concerning the legitimacy of a second war on Iraq, the juristic need for and the interpretation of another Security Council resolution, and the way the Americans handled the old UN regime of international law, all nations involved have become aware of the fact that by monopolizing the claim to legitimacy under international law, the United States has taken the first formal step toward raising the imperialistic questions of superiority to be settled in the next few years. America has undertaken an attempt to permanently exclude both its former allies and its former enemies from control over the global system of force and the capitalist business conditions implicit in it; instead, they are to perform new, subordinate services. For this endeavor, the world power demands advance recognition of its sole competence in matters of global law and expects to receive support in implementing its demanding plan to secure a global monopoly on the use of force.
And indeed, the confrontation between America’s legal viewpoint and all other states with respect to the current global balance of power — or the one yet to be established — is in effect a vast, long-term and worldwide diplomatic test program for the tester’s own freedom to act and the reliability of the testees. The degree to which a nation either acknowledges or disputes America’s right to subordinate the rest of the “community of nations” is a sure criterion of the quality of international relations. Whoever tries to dodge this claim or contests the legitimacy of preemptive defense against states who do, and who thus poses a threat to America’s security, can be quickly and unmistakably identified as a foreseeable political troublemaker. States branded as deviants will be faced with the question of whether they — as sovereign powers that acknowledge none but themselves as competent holders of ultimate rights — will yield to the superior power of a right even higher than theirs, or risk the superior hostility of the superpower.
Propagating new power relations — or denying them — as a question of international law can also be used to beguile peoples spoilt by legal thinking. It is not a difficult task for an agitator to sell a nation’s interests to nationalist masses as a clear case of pro bono contra malum, for the public good, and therefore as a question of national rights. That’s why German and other war opponents completely missed the point when asking about the legitimacy of the war, about the appropriateness of the means by which Saddam was punished, about the collateral damage to innocent civilians, and about what else “we” might have to put up with from ill-mannered American cabinet ministers and senators. Some of the European leaders will certainly be able to come up with answers to all these questions.
© GegenStandpunkt 2007