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Flight
deck crewmen of the USS Theodore Roosevelt look on Sunday, October
21, 2001, as attacks are launched against targets in Afghanistan.
(AP Photo/David Longstreath) |
The
use of force is barbarous unless it is in support of some concept
of order. We are reluctant to go to war for oil, for profit, for
territorial gain or for conquest pure. To justify violence we have
to invoke the stability of the international system, the sacred
soil of the motherland, the historic destiny of the nation, the
rule of international law, the desirability of making the world
safe for democracy, civilization, socialism or something similar.
We talk of sacrifice in war precisely because violence is, or should
be sacred.
When
the use of force has been successful, it is justified in terms of
the values of the society that won the battle. But even when, in
retrospect we judge that the use of force has been wrong
either because it was mistaken or because it was illegitimate
it has been justified with reference to some higher goal. The Soviet
Union invaded Afghanistan in support of the ever-widening spread
of a new socialist world. Britain and France defended their action
over Suez to protect the world from tyrants ready to take the law
into their own hands, to seize private property and to put at risk
the safety of navigation. The United States fought in Vietnam for
the laudable objective of preventing the spread of communism through
South East Asia and the world. At other times wars have been fought
to preserve the balance of power, to enforce the doctrines of the
Church, to spread the teachings of the Prophet, to assert legitimate
claims on an inheritance or to create a new order in Europe or Asia.
There
may be occasions when force is used without such a justification.
Perhaps the mindless violence of the Revolutionary United Front
in Sierra Leone comes into this category. But even in these cases,
as often as not, some spurious tale is told of magical powers or
tribal revenge. Very likely when the barbarians sacked Rome they
did so in the name of ancient liberties or the honour of the clan.
Today,
when we have lost faith in nation, God and history we prefer to
make war in the name of law or of humanity. Or we may do so for
the preservation of an international order that is supported by
law and that tries to operate for the good of humanity. Law, humanity
and the international order with which they are associated are the
three sources of legitimacy for military action.
Every
age remakes the law according to its needs and its values. This
is most clearly visible in domestic law. Laws and constitutions
change to meet the needs of the times. In the last hundred years
the kings and the emperors have gone, retired from politics to their
palaces, deserting the pages of the serious press for the world
of the fashion magazines. In most advanced countries women have
acquired new rights, bringing them somewhat closer to the position
of men. Racial discrimination has become illegal; abortion and homosexual
practices are increasingly permitted. New crimes such as hacking
have been created to match the new technology, just as copyright
was invented to take account of the coming of print.
International
Law For A Global Economy
Notions
of international law have also changed over time to match the changing
world. The idea of the state as sovereign (replacing the universal
jurisdiction of the church), the laws of war, the outlawing of piracy,
the abolition of the slave trade, the concept of self-determination
and the doctrine of human rights have contributed to a growing idea
of international law. Each of these stands for an adjustment to
a changing world. The last two of these are perhaps especially significant
since they represent the beginning of the encroachment of international
law on the domestic sector.
Military
intervention is justified if it represents a kind of self-defence
by the international system, if its objective is to preserve the
values and order that enable men and nations to live and go about
their business. It is therefore important to ask what sort of international
order we live under. The answer is that the world that we live in
today has two striking characteristics, both with important consequences
for the legal order. First, it is a world driven by a global economy;
second, it is a post-imperial world.
Globalisation
needs peace, order, and a framework of law. The globalising economy
makes international civil law of particular importance. International
trade needs some minimum system of rules: both the rules of international
contracts which have been developed by the private sector and also
the framework of rules created by bodies such as the World Trade
Organisation, which provide some security for the international
private sector against unpredictable interventions from the state.
To this should be added international law on patents, navigation,
exploitation of natural resources, finance, air travel and much
else on which the health and prosperity of the world economy depends.
An important element in international law is the gigantic body of
"regional law" developed by the European Union
international in the sense that it operates at a level higher than
that of the nation state but far from pretending to universality
(as has usually been the case with international law).
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A
Taliban and Al Qaeda graveyard on the outskirts of Kabul
© Gary Knight / VII Photo Agency, 2001
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The
central point of globalisation is that it has eroded the distinction
between internal and external. Economies that are open to trade
and investment are also open to influence from outside. Industrial
changes overseas impact on jobs and profits at home; crimes committed
abroad drug smuggling, people smuggling, waste dumping, money
laundering may ultimately endanger your safety. In an open
world system the risk of the ill effects of war spilling over are
much greater than ever before. Investments abroad may be lost; domestic
social security systems may have to cope with large flows of refugees.
At the same time the growth of international media brings into our
homes the pity of war to an extent never known before.
All
of this creates an environment in which the need for external intervention
is, if anything, greater than ever before. For globalisation to
flourish the international community needs peace. The characteristic
post-Cold War conflict is a civil war. The characteristic post-Cold
War intervention is not, as in the past, intervention for conquest,
but a peacekeeping operation designed to bring a civil war to an
end or to solidify a shaky peace. In keeping with the reducing distance
between the internal and the external, such missions may include
police as well as soldiers, sometimes even judges and prison officers.
As
the distinction between internal and external weakens in the economic
sphere, so in the political sphere we find ourselves describing
a military operation as a "police action" and prosecuting
people for war crimes: police, crime and prosecution were once categories
that seemed to belong exclusively in the domestic sphere. In fact
the purpose of a peacekeeping operation (of the Bosnian variety
for example) is to protect civilians, to restore order and to allow
ordinary life to go on: in this sense it is something very different
from what, historically, armies have usually done to attack
other armies and to disrupt ordinary life as much as possible
and resembles rather the duties of a domestic police force. (This
is not to imply that it is wrong to give such tasks to the military
often they are the only people capable of carrying them out;
and the threat presented by a disciplined force equipped with powerful
weapons may be essential to the task of restoring order.)
And
just as the borderless economy undermines the economic power of
the state in favour of the individual, so our societys emphasis
on individual rights and freedoms begins to threaten the idea of
state sovereignty as the sole basis for the international order.
Gross violation of human rights has been added to self-defence and
UN Security Council Resolutions as a legal justification for intervention.
As Tony Blair argued at the time of the NATO campaign in Kosovo,
sovereignty cannot be protected if the result is that the sovereign
attacks his own people. Taking this argument a stage further Richard
Haass, Director of Policy Planning at the US State Department, has
suggested that sovereignty implies obligations as well as rights,
and that the rights may be forfeit if the obligations are neglected.
This might be described as a shift from a Grotian world where the
object of international law was the state to a Kantian one where
the law exists to protect individuals rather than states. The corollary
of a willingness to contemplate intervention abroad where a state
is thought to have exceeded international norms is a readiness to
condemn, and occasionally to take action against the use of violence
at home e.g. in Zimbabwe or in Chechnya.
It
is in the nature of the world of the globalised economy that we
should be interested in the preservation of an orderly world, that
is to say in the rule of law that is what makes globalization
function and also that we should be ready to look at what
is happening within a states borders. In a world ruled by
law it is no surprise to find that lawyers are increasingly consulted
about matters which were once the exclusive concern of the military:
todays policy makers have to answer the question not just
whether an operation is militarily feasible but also whether it
is legally defensible. When you are undertaking an operation in
support of a legal order that is not an unreasonable question. This
is one important difference from the world of the cold war: questions
of law do not belong in a life and death struggle.
And
yet there is a nagging doubt here. It is by all means reasonable
to ask of certain government actions the disposal of nuclear
waste or the imposition of a steel tariff - whether they are legal.
Applied to a military intervention the question seems to be beside
the point. Legal advice may occasionally result in a changed target
set but would it ever persuade a government to change its mind about
taking action altogether? The international order is created by
force, preserved by force and backed by the threat of force. International
law is the particular form of order we have adopted to enable us
to run a global economy; but force is what established that order.
Force may be legitimate or illegitimate; it may be wise or foolish;
it may be in the interests of the international community or not;
but questions about whether it is legal or not seem at this
stage of world history at least merely pedantic. In domestic
affairs one does not ask if a constitution is legal or not.
This
does not mean that law and force are alien. Our order is above all
a legal order. If force can be used within a legal framework so
much the better; but even where it does not make sense to ask whether
force is legal or not, it should still be used in support of the
law. That may mean that it is used in support of the civil power
(in which case questions about its legality are in order) or it
may mean that it is used to establish an environment in which the
rule of law becomes possible.
The
Post-Imperial Style in Global Politics
The
second characteristic of our age is that it is post-imperial. A
hundred years ago the surface of the earth was largely occupied
by imperial powers and their possessions. All the empires are gone
now: the Ottoman Empire, the Austro-Hungarian, the German, British,
French, Japanese and American Empires, and finally in the last decade
the Soviet Empire. Not only have the empires disappeared, but with
them has gone the will to conquer and to rule in other lands. One
result of this has been the appearance of so called failed states:
countries that would once have been ripe for imperial takeover but
which today nobody wants to take on, and which fall into civil war
or are taken over by criminal elements. It is striking that most
of the international interventions in the post-Cold War period have
been in failed or failing states: Bosnia, Kosovo, Macedonia, Somalia,
Afghanistan, East Timor. (The exception is the Gulf war, an intervention
of a much more traditional kind where the threat posed to the world
order of state sovereignty was also of a more traditional variety.)
For the moment the international community continues to attribute
sovereignty to states even when they have failed. One wonders how
long this doctrine is going to last. It is paradoxical to consider
as sovereign a place where no government exists to exercise that
sovereignty.
These
interventions have been characterised by two features of the post-imperial
style. First they have been multilateral. A single state intervening
might be suspected of imperial motives; multilateralism is a way
of providing some limited guarantee that this is not the case. Multilateralism
does not give a full guarantee of legitimacy, but is a contributing
factor.
Multilateral
institutions are in some respects the successor to now defunct empires
as a way of organizing the world. They provide the framework for
trade, investment, cultural exchange and the rule of international
law that was once furnished (up to a point) by imperial structures.
Especially striking is the post-imperial style of intervention employed
by the European Union around its borders and in particular in the
Balkans. Coercive military intervention is the most dramatic form
of intervention but it is by no means the most frequent: advice,
political and economic pressure, monitoring, (often in the context
of possible eventual membership of the European Union) are all employed.
All of these are methods of influencing domestic decisions and all
played important roles in reshaping post cold war Europe.
Regional
law and regional norms may be more important than supposedly universal
laws. The Western intervention in Kosovo was justified formally
in terms of international humanitarian law; in practice it is doubtful
if NATO would have felt able to make a similar intervention in Africa
or Asia. It is not just that the NATO countries would have had a
greater degree of post-colonial suspicion to live down, reducing
the legitimacy if not the legality of their action. They would also
have lacked the historical references that gave the action in Kosovo
much of its legitimacy: the Holocaust and the ethnic cleaning of
World War II. It was in these terms, rather than in the language
of international humanitarian law, that Western politicians explained
their actions and that their publics understood them. Thus, although
the Enlightenment tradition makes us think of international law
as universal, in practice there is probably a strong regional and
historical element in the way we think of the legitimacy of international
intervention; perhaps, in due course this should be incorporated
into our thinking about law also.
The
era that we live in today the post-Cold War world of globalisation
is still young. The system of law we have begun to create
is designed to make the world safe for commerce, and to a limited
extent to promote human rights. (In the end the two may not be so
very different.) The world we are trying to shape seems a rather
peaceful, rational construct in which more will die from obesity
than from violence. (This is already the case in the United States.)
We may never get there.
New
Threats and the Need for New Responses
The
events of 11 September have shown us the other side of globalisation
and the post-imperial world. We live in a world which is doubly
vulnerable. First, it is vulnerable because it is open and because
cross-border trade, travel and communication has never been easier.
Second, it is vulnerable because, with the international division
of labour in an ever more competitive global economy, we operate
on increasingly fine margins of error. It requires much less to
do serious economic damage to todays world than was the case
thirty years ago. 11 September both made clear how much damage a
small group could do to our society, and at the same time provided
a powerful image that will dominate the imagination of the disaffected
for decades to come. In the second half of the twentieth century
the East Asian imagination was possessed by the idea of imitating
Japan and building a state and economy to rival that of America.
In the present century the consuming passion of the discontented
and the dispossessed in the Middle East, and perhaps more widely,
may be to reproduce the destruction of 11 September.
Globalisation
represents a radical redistribution of power away from the state
(which remains confined by borders and by national culture) and
in favour of the private, the corporation, the NGO, the individual,
the criminal anyone who can organize themselves to operate
in a borderless environment. Where the external and the internal
merge, large-scale crime may begin to resemble small-scale war
the two coming together neatly in the concept of terrorism.Simultaneously,
a second redistribution of power is taking place through the development
of relatively cheap and powerful weapons. Since the days when artillery
first became important, it has been relatively easy for governments
to maintain their monopoly on the means of violence: few apart from
governments could raise the revenue required to organize a train
of siege artillery. Nor could private individuals muster the sort
of destructive power needed to do serious harm to a state or society
short of recruiting an army, something which has never been
a real possibility outside the chaotic context of the Thirty Years
War. Agricultural societies, being largely self sufficient on a
village level, are in any case particularly resilient (as the US
discovered in Vietnam) and difficult to damage without a prolonged
intervention.
Today,
however, the possibilities of attack on an advanced society through
chemical, biological or electronic means are increasingly available
to individuals or small groups. In an open society, neither the
knowledge nor the materiel required can be kept only in the hands
of governments. 11 September has shown us what can be done without
using any of the purpose-built technologies of mass destruction;
future attacks may be even more devastating. The Bush administrations
twin focus on terrorism and on weapons of mass destruction is precisely
right. We are lucky that the instances of the two coming together
are so far relatively limited. We cannot count on this continuing.
(Missile threats, by contrast should probably be a lower priority.)
If
these threats develop and history suggests good grounds for
pessimistic assumptions then both internal and international
order, both the state and the state system will be at risk. How
the international system will cope remains to be seen, but it is
unlikely that the comparatively benign, ordered, law-governed world
that seemed to be emerging from the Cold War will survive intact.
If the state and the state system weaken, if violence becomes cheap
and the states lose their monopoly on it, if disorder grows, the
prospects for international society look increasingly bleak. This
does not mean that we must give up the attempt to govern force by
law. A law-governed society of nations still remains our long-term
objective. None of the alternatives (government by men, God, history,
race or power) seem attractive. It means only that our chances of
success will be limited unless we find the means to control the
forces set free by technology. In the meantime we have to adjust
our legal concepts to take account of the new realities: preemptive
force and covert operations may need legal recognition, and the
UN Security Council may or may not be able to play a central role.
At all events the attempt to continue as though nothing was happening,
or to assume that a particular conception of the legal order must
remain unchanged, will not be a recipe for success.
Robert
Cooper is Director-General for External and Politico-Military Affairs
at the Council of the European Union. He writes here in a personal,
not an official, capacity.
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