Article 51

Last night I caught an address by Noam Chomsky at West Point, of all places.

Below I’ll be quoting from an outline of his speech.

http://www.zmag.org/Sustainers/Content/2006-05/20chomsky.cfm/NEWS08

Since Chomsky is, among the living, American’s leading liberal political theorist, it is worthwhile to engage him on the war effort.

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Concepts aside, actions in the real world all too often reinforce the maxim of Thucydides that "The strong do as they can, while the weak suffer what they must" — which is not only indisputably unjust, but at the present stage of human civilisation, a literal threat to the survival of the species.

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The image of the strong dominating the weak, with the US representing the strong, and the Third World representing the weak, is a fulcrum of Chomsky’s worldview.

However, it’s also simplistic. For not only is there a distinction between strong and weak on the global stage, but also at a local level.

You may have a regime which is far weaker than the US, but is strong enough to oppress its weaker neighbor or its own populace.

If a superpower intervenes to topple or restrain the oppressive domestic policy or aggressive foreign policy of a lesser power, is that just or unjust?

Indeed, some might argue that a superpower has a special responsibility in this regard. It’s the duty of the strong to succor the weak.

At present I’m not going to argue that point one way or another. My immediate point is that a dipolar contrast between the strong and the weak disregards important moral and practical distinctions.

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In his highly praised reflections on just war, Michael Walzer describes the invasion of Afghanistan as "a triumph of just war theory," standing alongside Kosovo as a "just war." Unfortunately, in these two cases, as throughout, his arguments rely crucially on premises like "seems to me entirely justified," or "I believe" or "no doubt."

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It’s important to keep in mind that just-war theory was intended to impose a qualitative and quantitative limit on war—to restrict the extent as well as the destructive intensity of warfare.

Just-war theory is essentially proscriptive rather than prescriptive. It proscribes certain types and methods of warfare.

It lays down certain criteria for when a war is permissible, and how it should be conducted.

Now, just-war theory may be a flawed theory, but the alternative to just-war theory is not a reduction in the number or brutality of wars.

Incidentally, Calvin’s criteria for going to war seem to be broader than classical just-war theory. Cf. Institutes 4.20.11.

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By "just war," counterterrorism or some other rationale, the US exempts itself from the fundamental principles of world order that it played the primary role in formulating and enacting.

After World War II, a new regime of international law was instituted. Its provisions on laws of war are codified in the UN Charter, the Geneva Conventions and the Nuremberg principles, adopted by the General Assembly. The Charter bars the threat or use of force unless authorized by the Security Council or, under Article 51, in self-defense against armed attack until the Security Council acts.

In 2004, a high level UN panel, including, among others, former National Security Adviser Brent Scowcroft, concluded that "Article 51 needs neither extension nor restriction of its long-understood scope ... In a world full of perceived potential threats, the risk to the global order and the norm of nonintervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted. Allowing one to so act is to allow all."

The National Security Strategy of September 2002, just largely reiterated in March, grants the US the right to carry out what it calls "pre-emptive war," which means not pre-emptive, but "preventive war." That’s the right to commit aggression, plain and simple.

In the wording of the Nuremberg Tribunal, aggression is "the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole" — all the evil in the tortured land of Iraq that flowed from the US-UK invasion, for example.

The concept of aggression was defined clearly enough by US Supreme Court Justice Robert Jackson, who was chief prosecutor for the United States at Nuremberg. The concept was restated in an authoritative General Assembly resolution. An "aggressor," Jackson proposed to the tribunal, is a state that is the first to commit such actions as "invasion of its armed forces, with or without a declaration of war, of the territory of another State."

That applies to the invasion of Iraq. Also relevant are Justice Jackson’s eloquent words at Nuremberg: "If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us." And elsewhere: "We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well."

For the political leadership, the threat of adherence to these principles — and to the rule of law in general — is serious indeed. Or it would be, if anyone dared to defy "the single ruthless superpower whose leadership intends to shape the world according to its own forceful world view," as Reuven Pedatzur wrote in Haaretz last May.

Let me state a couple of simple truths. The first is that actions are evaluated in terms of the range of likely consequences. A second is the principle of universality; we apply to ourselves the same standards we apply to others, if not more stringent ones.

Apart from being the merest truisms, these principles are also the foundation of just war theory, at least any version of it that deserves to be taken seriously.

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There are several problems with this argument:

i) Chomsky retreats into the technicalities of international law. But what’s the value of law if not to defend the innocent?

It’s morally obtuse to begin with the law, for that begs the question of whether we have good laws or bad laws. The rule of law is not an end in itself, but a means to an end.

ii) One of the fundamental problems with the UN is that it gives every member a vote. In so doing, it gives the bad guys a vote, and the bad guys outnumber the good guys.

iii) Is global order the overarching norm? Should stability trump all other considerations?

Every position has consequences. Is instability the worst-case scenario? Can there not be forms of totalitarian stability which constitute a worst-case scenario?

iv) Is universality a sound principle?

It’s trivially easy to come up with counterexamples:

Unless everyone has a right to adopt kids, no one should have a right to adopt kids. Ergo, pedophiles should have a right to adopt kids.

Unless everyone has a right to bear arms, no one should have a right to bear arms. Ergo, a convicted sniper should have a right to bear arms.

Universality is a simplistic principle. A sounder principle would be equality—all other things being equal. But if all other things are unequal, then inequality is preferable to equality.

So, for example, equally qualified couples should be allowed to adopt kids, but you will still have a screening process to weed out unqualified couples.

Likewise, law-abiding citizens should be free to bear arms, but you will still do background checks to weed out bank robbers.

v) To take a more immediate example, it would be irrational to say that no nation has a right to nuclear arms unless every nation has a right to nuclear arms.

For some nations are more responsible than others. Some nations have nuclear arms as a defensive deterrent, whereas others have, or seek, nuclear arms to wage wars of unprovoked aggression and conquest, or to extort the “world community,” under threat of nuclear blackmail.

vi) There are certain conditions that must be met to justify preemptive action. The principle of preemption does not imply that any nation is entitled to wage war against any other nation under the pretext of preemption.

vii)”Allowing” one country to take unilateral action does not “allow” every other country to take unilateral action.

This assumes that countries need multilateral permission to wage war, and, absent such permission, their actions are disallowed.

But there is no enforcement mechanism to allow or disallow preemptive action.

Article 51 is a paper theory. Article 51 never prevented a war.

Nations wage war when it’s in their perceived national self-interest, when they think they can win, and when they think they can get away with it. International law is a dead letter in warfare.