Going to war is justified if it defends the international order.  The threats we face today are so serious that we must rethink our ideas about the use of force, and step outside existing legal boundaries if necessary.

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).

A Taliban and Al Qaeda graveyard on the outskirts of Kabul © Gary Knight / VII Photo Agency, 2001

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 society’s 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 state’s 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: today’s 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 today’s 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 administration’s 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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