I just did a bloggingheads with Eric Posner which was all about this topic (the nature of international law, not the Goldstone report) – Eric has a new book which, it would be fair to say, is not particularly favorable towards international law. Me, I find the debates among legal academics about international law weird and confusing (perhaps because I am a political scientist, who thinks in very different terms). It seems to me that the concept of international law bundles several, quite incongruous things together, which have very different sources and degrees of legitimacy.
First are things like UN Security Council approval for the use of force. This is international law – but I don’t think that one can plausibly argue that it has much inherent legitimacy (see Erik Voeten on this). The justifications for respecting this kind of law are pragmatic. First, UN Security Council approval raises the bar for the use of force significantly, making it somewhat less likely that force will be employed (while states sometimes ignore this requirement, it does cost them). If you think (as I do) that force really should be a last resort, then this is probably a good thing. Second, uses of force that are unlikely to get UN Security Council approval are more likely to fail than uses of force that do, precisely because the latter have the backing or tacit assent of several of the great powers, while the former do not. Thus, there is some real pragmatic justification for abiding by the Security Council most of the time, but I don’t see much of a case that, say, getting the approval of China is likely to be a source of deep normative legitimacy.
Second, is international law regarding, for example, the conduct of wars. This, it seems to me, has considerably stronger normative justification. It stems less from pure power politics than from a shared set of concerns that states have in e.g. minimizing the role of civilian casualties. There is likely a very plausible case to be made that these norms ought to be much tougher and more restrictive than they are – even if they are not a product of power politics they are limited by these politics. Nonetheless, even if they are weaker than they should be, they are still a lot better than nothing. And here, the Goldstone report was exactly right – the ‘but he did it first’ excuse is not, and cannot be a justification for committing war crimes. Nor does the ‘self-hating Jew’ claim, or other ways of attacking the messenger (for a broad sampling of such attacks on various parties, see our indefatigable friend David Bernstein at the Volokh Conspiracy) really stick – if you are unnecessarily killing or seriously injuring hundreds or thousands of civilians, you are unnecessarily killing or seriously injuring hundreds or thousands of civilians, and there is no very good way of getting around this awkward fact. Both Gideon and Eric would point to the undoubted fact that the leading politicians of great powers (or their important clients) are highly unlikely to find themselves in the dock for war crimes. But direct punitive sanctioning is not the only effect of law. It can influence the perceived legitimacy of a particular state, its actions and its leadership. It is quite clear that Israel has taken a substantial reputational hit from the Goldstone report, even if it will never be condemned by the UN Security Council, and that Israel’s leaders are worried and upset about this.
Third are efforts being pushed e.g. by the European Court of Justice to make international law less focused on raw power politics and more on accountability. Here, I think that Eric’s book is wrong. He interprets the European Court of Justice’s holding that “the human rights commitments of European countries take precedence over Security Council resolutions” as evidence that “as Europe becomes a powerful nation, its commitment to international law will weaken.” (p.116). The suggestion here is that Europe is becoming more like the US as it is becoming more integrated and powerful. But this interpretation isn’t really born out by the case that Eric refers to, in which the ECJ held that UN terrorist watchlists were illegal under European law because they had no provisions for effective review.
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.
Here I want to point out another problem with this attitude, at least if one takes seriously its logic. Let us suppose that the Goldstone report was reasonable and fair (I have not read it, so I have no opinion on this issue). It is worth recalling that it was commissioned by the Human Rights Council, and would not have taken place but for the decision of that institution. The Human Rights Council is dominated by illiberal states that cannot agree to condemn North Korea or Iran or Sudan, but can agree to condemn Israel. When not condemning Israel, it does two things: it tries to advance a conception of human rights that most western states reject; and it issues bland and uninformative periodic reviews of the human rights practices of states. If you go to their website, and read their reports, you will notice that when votes occur (as they do for controversial issues but not the bland periodic reviews), there is a distinctive pattern, something like this:
“The voting was as follows:
In favor: Angola, Argentina, Bahrain, Bangladesh, Bolivia, Brazil, Burkina Faso, Cameroon, Chile, China, Cuba, Djibouti, Egypt, Gabon, Ghana, India, Indonesia, Jordan, Kyrgyzstan, Madagascar, Mauritius, Mexico, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal, South Africa, Uruguay, Zambia;
Against: Belgium, Bosnia and Herzegovina, France, Hungary, Italy, Japan, Netherlands, Norway, Republic of Korea, Slovakia, Slovenia, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America.”
Hm, what should we make of this? Here we see the Americans in the same bloc as the virtuous Europeans. (In the case of the Goldstone report, some European countries abstained rather than voting no because they objected to the Council’s failure to mention Hamas in its resolution adopting the report.) Henry’s view is that if reports like the Goldstone report are regularly issued, and the state that is the subject of the report takes a “reputational hit,” that can only be a good thing, because at least some states will be more likely to respect human rights and comply with the laws of war. But can it be seriously entertained that the minority bloc (and it is a bloc) will put up with this state of affairs? Why should they, exactly? If they value human rights and the laws of war, they can comply with them. If they don’t, they would certainly not put themselves in the position of being the only group of states that will be condemned for violations, giving a free pass to a larger group of states that, as it turns out, act much worse.
International law needs institutions if it’s to get beyond its primitive state, but institutions don’t avoid the problem of power politics; they embody them.
There may be a part of Eric’s argument that I am not getting here (the claim in the penultimate sentence is a little too compacted for me to be entirely sure what he is saying, and I would be grateful to have it unpacked), but two things are worth pointing out. First – that the Goldstone report, despite the initial HRC mandate, did prominently condemn both Hamas and Israel (Goldstone made it a condition of his involvement that he be allowed to investigate Hamas’s activities as well as Israel). Second, and more importantly that there is good evidence that the HRC’s predecessor, the even more widely excoriated UN Commission on Human Rights did have a measurable, and arguably positive, effect in punishing notorious human rights violators, despite its many flaws.
If I understand Eric’s arguments about the CHR at all well, this provides troubling evidence against them. I would be startled if Eric were to argue that the HRC is a ‘better’ example than its predecessor of the kinds of problems that he identifies. Every piece of evidence we have would suggest that the UNCHR was, if anything, worse afflicted by the pathologies that he is interested in. Yet the only serious study that I am aware of (perhaps Eric knows of others) provides strong statistical evidence that the UNCHR was not all about the power politics as Erik would claim, and that UNCHR resolutions were increasingly well explained over time by normative factors (whether or not states genuinely were human rights abusers), and reputational ones (whether or not states were good international citizens). A follow-up study furthermore shows that these condemnations had significant material consequences for the states targeted. I would be very interested to see his response to these pieces (especially since I know that he has some familiarity with, and respect for, Erik Voeten’s single-authored work, and is more generally much more interested than most international law professors in building on the findings of political scientists). Finally, if (and this is certainly not explicitly stated by Eric), his normative case against the HRC extends backwards to its predecessor too, it is, at the very least, substantially overstated. The UNCHR did a considerably better job in targeting actual human rights violators than its critics suggested. If, alternatively, the HRC represents a substantial step backwards from the UNCHR, I would be very interested to see the evidence and supporting arguments stating why this is so.
One possible response Eric could make would be to argue that this is still well explained by states’ interests (albeit perhaps with a different understanding of those interests than in his original work). But this would still be vulnerable to the second, and more serious criticism that I want to make of his book – that it doesn’t really have a theory of what states’ interests are, and that without such a theory its explanatory power is highly limited. I hasten to add that this is a general problem for accounts of international politics based around state behaviour – no-one has come up with a generally convincing account of what states’ interests are. However, it is a particular problem for a book that, like Eric’s, wants to make a strong argument about the inherent limits of international law. More on that in my next post.