“Years of impunity for Israeli crimes against civilians have bred a culture of disregard for international law.”
As a counter-argument I have chosen a selection from Between Equal Rights
“The debate between jurists is not whether this or that action is a reprisal and therefore illegal, but whether reprisals as a category are illegal. Here, the importance of ‘authoritative’ decision is key. After all, the majority of writers agree that reprisals are illegal. However, as long as Israel, for example, is able to interpret reprisals as legal, openly to claim its activities as reprisals, and to be a strong enough power (with the US’s support) to defeat or silence any dissenters, then it is nonsensical to claim that reprisals are functionally illegal.
The same unresolvably structured arguments – again with the weight of opinion against the US – have been batted back and forth in the case of the US invasion of Grenada in 1983. The US’s backing of the Nicaraguan Contras has been deemed illegal by the International Court of Justice in 1986, having previously been defended stridently by the US, all in legal terms. The same indeterminate arguments hold whether or not a global superpower is directly involved: the Israeli commando raid on Beirut airport in 1968, for example, just as much as its 1982 invasion of Lebanon, has been seen as legal and as illegal.
International law is everywhere. Legal argument permeates every inter- national incident and the very fabric of the international system. And on its own, the dynamic of this argument resolves nothing.
In 2004 “in a decision no one on the progressive Left can fail to celebrate, the International Court of Justice has ruled that the huge ‘West Bank barrier’, the metres-high wall of concrete, barbed wire and mesh that Israel is constructing around and in the Palestinian occupied territories, is illegal and ‘tantamount to de facto annexation’. This has been described as – and surely is – a ‘moral victory’ for the Palestinians, perhaps even one which ‘shifts the debate’. However, as Israel has made clear that it will ignore the (non-binding) ruling (arguing that it is one-sided, ‘political’, and/or that the ICJ has no jurisdiction in the case), and the US has denounced it as ‘a damaging distraction’, the very ‘victory’ of progressive international law also underlines the limitations of that law – ‘nothing more than ink on paper’– as an arena for change. Palestinian groups such as Hamas ‘ask what the point is in fighting legal battles when Israel and the US are so ready to reject court rulings they do not like’.
Tellingly, the most concrete semi-official Palestinian plans to build on this ruling involve agitating for international sanctions, popular pressure and boycotts of Israeli goods. In fact, one Palestinian negotiator has made it clear that for reasons of realpolitik, the Palestinians are unlikely to push for the UN Security Council to support the ruling and thereby strengthen the legal nature of the decision, as ‘[i]t would highlight America’s role as a friend of Israel and I’m not sure the Palestinians actually want to isolate the Americans’.
In other words, precisely mindful of the political reality that underpins the forging and exposition of international law, the Palestinians are prepared to self-stall the ‘international-law-ness’ of their very international legal victory and will attempt instead to use it to mobilise extra-legal public opinion. This is an understanding that it is popular pressure from below rather than international law that represents the best hope for the Palestinian cause, and that the most ‘progressive’ international legal decision is best deployed insofar as it leaves the realm of international law.
In what is arguably the most famous legal blow against imperialism, the ICJ’s 1986 decision in Nicaragua vs. US held that the US support for the Contra guerillas against the Sandinista regime and mining of Nicaragua’s harbours was illegal intervention into Nicaragua’s domestic affairs. However, the US refused to recognize the ICJ’s jurisdiction, vetoed a Security Council resolution that would have enforced the judgement, and no restitution was made.
From the left, one might argue that this evidences that the US has the power to flout law with impunity; alternatively, that the US’s interpretation was the one made actual and that this illustrates the imperial actuality of international law. Either way, out of an apparent legal triumph for progressives, the international legal system itself is undermined as a site for activism.
I will not rehearse the humanitarian catastrophe caused by the West’s military response to Iraq’s invasion of Kuwait in August 1990. Nor will I reiterate the evidence that, contrary to Halliday’s claim that ‘[t]he diplomatic option was tried and it failed’, that ‘[p]eace was given a chance’, the decision to go to war was decided as early as 30 October 1990, and that numerous diplomatic alternatives to war were rebuffed by an intransigent US. Instead I will focus on the point that Halliday concedes, that the war was ‘conducted by an unsavoury set of powerful states’.
Halliday’s argument is that despite ‘unsavoury’ motives, the imperialism itself might constitute a progressive force. However, as Patrick Wilcken points out, ‘[t]he main problem with this type of approach is that, if these powerful states really are “unsavoury”, what guarantee was there that the negotiations, war and final settlement would be conducted satisfactorily?’ Halliday’s point of view owes a great deal to Bill Warren’s view of imperialism as the pioneer of capitalism. The ‘Warrenite’ position ‘rests on the fallacious assumption that the imperialist powers have a general interest in promoting “democratic change” in the Third World’.
Halliday is quite right that questionable motives in themselves ‘do not automatically discredit the war the Allies fought’. However, these motivations are most interesting insofar as they illuminate the underlying political-economic processes: ‘the logic of international relations is stronger than the logic of diplomacy’.
Imperialism is not a strategy of the advanced and powerful capitalist powers, and certainly not a means of transporting a capitalist mode of production, but is a defining structural element of actually-existing capitalism – which included Iraq as much as the allies. The active imperialist intervention of the US, in this model, was not something that the US was doing to a non-capitalist society, but was a moment in the totalising, combined and uneven reality of global capitalism.
The structures of imperialism are consistent: the complaints of Halliday and countless others that in March 1991, the West did not ‘finish Saddam off’ fail to address this. ‘Washington’s failure to do so did not reflect some intellectual mistake, or lack of will power, but its calculation . . . that [its] . . . interests were better served by the survival of a weakened Ba’athist regime than by its replacement’.
The point is not whether or not the US was correct in this assessment – the point is that leaving Saddam Hussein in power was as much US imperialist strategy as the earlier bombing. Similarly, the well-known fact that the US backed Hussein during the 1980s, during some of his worst excesses, is more than simply evidence of US hypocrisy: that too was the US imperialist strategy, just as much as its later attacks. The shifts in policy reflect a consistency of imperialism.
To support imperialism, no matter how honourable the motives, is to sup- port the strategies that underpin imperialism as an epoch of global capital- ism. It is no coincidence that the imperialist strategy has not brought about a material or political improvement in the region. This hope is predicated on the notion that a moment of imperialism – the military action – can be abstracted away from the whole structure and process of imperialism, and used for progressive ends. In fact however progressive such an action’s stated aims, it is part of a historical process of domination and exploitation, for which brutal methods are more often than not effective. To try to pick pieces of imperial- ism to support and others to condemn is to fail to deal with it as a totality.
Such a conception underpins the argument that the international law of formal imperialism cannot be the most fundamental intersection of juridical- ism and imperialism. If imperialism is totalising, it structures global capitalism, which is a legal system. The question then is how, in an era of formal equality of states, international law articulates imperialism.
The very imperialism of each state is a function of its capitalist nature. When it comes to international law, then, the point is that the more powerful state, with the coercive capacity to enforce its own interpretation of legal rules, is a more powerful capitalist state. Its interpretations and its coercive efforts are deployed for capital, which is predicated on class exploitation. This makes concrete the specific relations of the capitalist market that underpin modern international juridical relations, and shows how these relations of juridical equality will be actualised according to what is ultimately a class logic, rather than a market logic.”
China Miéville, Between Equal Rights, 2005
Comments