Some Thoughts on Imperialism and International Law

Richard Seymour (i.e. Lenin of the Tomb) has written some very interesting pieces that touch on issues close to those I have recently addressed – namely the historical and theoretical relationship between imperialism, humanitarian intervention, self-defence and the war on terror. Both of these pieces are very insightful and I would recommend people read them (although I assume such a recommendation on my part is pointless, as I doubt anyone who reads my blog doesn’t read the Tomb). That being said, I have a few nit-picky concerns with Lenin’s stuff, particularly as concerns the role an importance of [international] law.

Who has the right to self-defence?
One of the important things that I think has to be done with this post is to properly disaggregate all the legal issues and then use them to properly frame some of the problems that Seymour identifies. So, to start with, he notes:

It might be argued that today the lower caste of states do have some rights of self-defence, but these are heavily circumscribed. Thus, the ruling caste reserves for its exclusive use the right to weapons of mass destruction, to aerial bombardment, invasion, and so on. Israel has a right to all of this but, say, Iran does not.

Immediately, there is a problem. Seymour is conflating the right to use self-defence, with the degree of force which can be used in self-defence and the degree of force that can be used more generally in an armed conflict. Although this may seem like a pedantic distinction, I’ll argue later that it’s actually pretty important.

In a similar vein, Seymour points out the centrality of statehood to many of the arguments defending Israel’s actions, noting:

The question of statehood is important. It is not uncommon for Israel's supporters to emphasise the fact that it is a sovereign state while its designated foes (Hamas, Hezbollah, Fatah, Islamic Jihad etc) are non-state actors. This emphasis presumably derives from the perspective of Just War theory…

Perhaps, perhaps, perhaps. But it strikes me that the more sophisticated defenders of Israel’s actions don’t really need to refer directly to Walzer on this point. Instead all that needs to be referred to is international law, which although increasingly concerned with non-state actors, still takes the sovereign state as its main actor. Indeed, in international law, the right to self-defence can only be seen as accruing to states. Thus, I’ve noted before, the anomalous character of the Palestinians in international law really muddies the water. Historically, in the period of decolonisation (when there was a really radical Third World movement) this argument was less prevalent, precisely because the question of violence in pursuit of self-determination by non-state actors was so vital to their interests. But with the general move away from an international law whose agenda genuinely was – to some degree – shaped by these movements this argument seems to have disappeared (and to be honest may well surface in the imperialist camp with the perhaps Kosovo/Georgia serving as a bit of a harbinger to this).

It’s important to note this, I think, because it actually buttresses Seymour’s more general argument. International law’s focus on statehood (as opposed to just Walzer’s) is deeply exclusionary. As Anghie and the TWAIL movement have shown us, the centrality of the sovereign state to international law has a genetic connection to the old exclusionary/transformative notions of a Family of Nations that were around in 19th century international law. These notions of statehood were irreparably bound up with notions of European (and I would insist capitalist) notions of internal social organisation. I think this is important to note because it’s not just some commentators who embody these commitments but very fabric of our international order.

The general thrust of Seymour’s work is particularly provocative and although I find it persuasive I think the above caveats would lead me to slightly different conclusions to him. Seymour argues [this is a long quote but I think it’s worth engaging with]:

This caste arrangement was once structured by claims of racial solidarity, such as those of Anglo-Saxonism. Such are the origins of the 'special relationship' between the US and UK in the later 19th Century, in which the US resisted the urge to annexe any part of British territory in Canada or the British West Indies while the British not only acceded to American expansionism but embraced it at key points, such as during the 1898 war. Anglo-American competition did not disappear, but it was twinned with a new strategic orientation based in part upon racial sentiment and fear of emerging rival imperialisms of Russia and Japan. At this point, race and conceptions of democracy were inseparably intertwined, the latter seen as a function of the former. That is, for American imperialists such as Theodore Roosevelt no less than for the British empire, democracy was appropriate to the 'white race' which had alone reached a state of self-government.

The trend since 1945, however, has been to make racism invisible - as Robert Vitalis puts it, there is a pervasive 'norm against noticing' the way in which the global order is powerfully structured by race … It would be pedantic to list the examples of democratic states that have been targeted for subversion and military attack by western states, or the democratic movements that have felt the iron heel of western repression. It is sufficient to note that in the most recent case of Israel's 'self-defence', the opponent has been the elected government of Palestine. Such violence by western states is neither democratic in method nor in aim, unless one is willing to descend to the argument that by definition political coercion by democratic states constitutes an enlargement of democracy's scope.

I have to say I have a real problem with this. Whilst historically it is true that much of the old international law was racialised, this racism was of a cultural/social/economic type, rather than of the biological type (or it was at least an odd mix of the two). This is particularly notable because although the standard of civilisation was not always applied ‘fairly’ there were a good many ‘non-White’ states which gained full legal personality, or were at least granted ‘semi-civilised’ status. Once we hit early on in the 20th century (I don’t know exact dates for all of this) China, Japan, Egypt etc. were all fully sovereign. There are two driving factors behind granting these countries sovereignty – one is the direct, immediate interest of imperial powers, so as China Miéville points out (Between Equal Rights, 2005, Brill at pp.240-250) the recognition of certain states as possessing some sovereign rights was essentially driven by the fact that the major imperialist powers had made treaties with these nations that simply had to be accounted for.

The second factor was the internal character of the states – which comes from both 19th century international law and the Mandate System – essentially once many states genuinely had massively altered their internal life so that they were large, capitalist centralised nation-states they were granted some legal personality. Ultimately, I would argue that can again be (more broadly) related to the idea of ‘interest’, these nations were forced to reorganise so that they would be more suitable for the spread of international capitalism. To my mind the racialisation of these issues is secondary, or rather, much of the racism is as ad hoc as the notion of civilisation (indeed the two are bound up), often responding to particular imperial interests.

I would argue that the above considerations hold true today, albeit in a modified form. So, Seymour is right to point out that – to some degree, although again we shouldn’t go nuts about this either – ‘democracy’ has assumed a similar role to civilisation. He is also right to point out that in practice this notion of democracy is highly flexible as a good number of democracies have been undermined by Western states – often mounting some kind of international law claim [although as an aside I think part of this comes from the very formal notion of democracy deployed by Western states; democracy is a set of institutions – largely symbolised by continuing elections – and rights – often property rights but also an abstractly free press etc. – which have to be guaranteed for the future. This allows substantively democratic movements who do not meet these conditions to be ignored, whereas brutal reaction acting in the name of these commitments to be supported].

But I really don’t think this is a racialised notion. To my mind this is – as civilisation was – much more about the interests of imperial powers. The West didn’t undermine Latin American or Arab leftist regimes because they weren’t white, they did it because these regimes contradicted their interests (and let’s not forget that the CIA ran operations even against some of its 'allies'). It seems to me that the criterion of democracy – as noted in my very long square brackets – has responded much more clearly to interests than to race. Now, often the two coincide, and I think some of this is just contingent – Europe developed capitalism first, Europe expanded first; so capitalist organisation is European – but it’s telling that imperialists don’t seem to care about the colour of its puppet regimes’ skins and will happily support some ‘brown-on-brown’ (and even brown-on-white) action should it support their interests.

Conclusions
Putting all of this hodge-podge together with some new stuff I want to make some conclusions.

Firstly, international law often has an abstract standard that it applies to everyone – this may not always be done fairly but in principle people support this. This abstract standard is something like – all states have the right to self-defence etc. But very often although this standard is abstract it essentially universalises a certain way of doing things which gives imperialist states a massive advantage. So every state has a right to self-defence. More importantly for us the rules regarding what it is permissible to do in war are massively in favour of high tech imperialist states. So, long range weapons which can’t be aimed properly (i.e. rockets) are ‘indiscriminate’ and as such any attack by them is per se impermissible. But long range, high-tech ‘smart’ weapons which nonetheless kill many more civilians are not per se indiscriminate and so the standard of proportionality, which is often largely a whitewash.

Indeed this abstract focus on direct-ness often operates in such a way. Whilst it is a war crime to directly target any civilian not taking part in the hostilities, it is not per se a war crime to launch an attack knowing that it will kill civilians not taking direct part in the hostilities (which leads to the ridiculous situation where a civilian driving an ammunition truck cannot be shot, but the truck could be blown up). As Marx noted, applied equal standard to unequal people is a right of inequality.

Often this is the favoured tool of the imperialists because it allows them to claim faux equality whilst massively reinforcing their own interests.

Secondly, outside of this equal standard there are some formally unequal standards that attempt to entrench imperial power within the law. Humanitarian intervention is one of these – insofar as the right clearly doesn’t accrue to everyone. More important in this respect is the War on Terror – which in practice is an attempt to entrench the right of certain states to intervene military unlimited by temporal or spatial considerations.

But, I believe that resort to this type of logic – and to some degree it underpins most Israeli interventions – often is a sign of weakness. The preferred method of imperialist states is surely to be able to operate through the ‘normal’, formally equal channels of international law as this allows them to avoid accusations of – well – imperialism. I think the vital point is that these sort of logics only come into play in the case of weakness or inter-imperialist rivalry. As I have previously noted, the US only resorted to strategies such as humanitarian intervention or the war on terror because it was facing opposition in the Security Council (although not initially with the war on terror).

What is common about both of these strategies – to my mind – is that whilst there may be something of a ‘colour line’, this colour line is secondary to, or viewed through the prism of, imperial interests. So, whilst the standards may be somewhat Eurocentric, this is – I think – largely because capitalism and imperialism grew up here (as it were). China Miéville – in his forthcoming article on Haiti – has a fascinating reflection on the relationship between international law and capital accumulation, arguing that we might well conceive international law as serving to facilitate capital accumulation. This is something I may run with in the next few years (providing someone gives me money to do a PhD), as we can interestingly see the initial period of exclusionary international law as linked very much with primitive accumulation. Present international law – and the way that it facilitates certain types of imperial violence – can be useful conceptualised in terms of accumulation by dispossession, allowing imperial states to intervene against those who are proving problematic for accumulation.

It’s vitally important to distinguish between these two and condemn them both. Because if we argue only that the second type (of formal exclusion) operates, we allow our opponents to point out the way in which genuine formal equality does operate.

Obama the Imperialist
I find this piece much more straightforward to agree with, so I’m not going to comment on it massively. One thing I would say is that the attacks in Pakistan seem to indicate that Obama won’t necessarily be dropping the ‘war on terror’ moniker (not that it really matters because, in substance, it is much the same thing as liberal interventionism). Indeed, in many respects Obama may simply strengthen the US’ claims to imperial exceptionalism. In the case of Bush it was ridiculously easy to point out the flaws and contradictions in claiming to love freedom etc. because of the obvious mistreatment of vast numbers of people – Guantánamo and extraordinary rendition being the most evident. But Obama has been quite decisive in ending much of this ‘spectacular’ mistreatment (through a series of spectacular moves of his own) whilst maintaining the claims as to American exceptionalism. The spectacular is actually quite a useful category for examining the transition from Bush to Obama. Bush (and the opposition to him) embodied the spectacular insofar as his administration was involved in some very spectacular forms of violence – torture, detention without trial, shock and awe. These forms of violence were vehemently opposed by a coalition of liberals and the left. But the point is that the US claims to exceptionalism should not just be undermined by spectacular violence but structural violence too – the prison industrial complex, immigration, poverty, complex racial problems. Since much of the opposition to the Bush administration was based on spectacular violence, Obama’s spectacular renunciation of much of this violence leaves him in the perfect position to argue for a renewed American exceptionalism.

John Bolton was very telling on election night – arguing that with the election of Obama the US could no longer be criticised for its racial problems (around 1:10). Ultimately, then, I fear that a lot of what China Miéville has said has come to pass – by emphasising the ‘revolutionary’, spectacular problems of the Bush administration (which did give us some allies) – we have undermined our abilities to criticise that which follows it, and may even have inadvertently created the conditions for a revitalised American exceptionalism.

Law and Loneliness

A few weeks ago I finished reading Hannah Arendt’s The Origins of Totalitarianism (1962, Meridian Books). As many of you will know the book is really great and mounts an original and persuasive argument with regards totalitarianism, even convincing me that the term might have some utility (although I am fairly steadfast on the idea that equating Nazi Germany and the ‘Stalinist’ Soviet Union is not that useful). However, as with recent critical work (which of course is influenced by this account) I think that Arendt gives law rather too much of an easy ride. Often in the book she treats the law (in Debord’s words) as being ‘asleep’ to processes of domination before ultimately being abolished. As I have argued earlier this is something of a liberal response (although Arendt was obviously not a liberal and she is ambivalent on the law), which absolves law of complicity in oppression (even if one some level it must condemn law for being so inefficient).

I think this is particularly prevalent in her discussion of the role that the ‘masses’ and loneliness play in the growth and consolidation of totalitarianism. For Arendt ‘loneliness’ and the ‘masses’ are two parts of the same process. Although the concept of loneliness in only introduced in an amended chapter to Origins (Ideology and Terror) I would argue it remains implicit within her description of the masses (indeed it is explicitly mentioned in this earlier discussion) and is very useful in differentiating between the special role of the masses in totalitarianism and ‘ordinary’ tyrannies.

Arendt first distinguishes between isolation and loneliness. Isolation occurs in the political sphere, essentially it occurs when people are unable to make public, political contacts with each other. Owing to this they become unable to act politically and so impotent. Arendt argues that this is standard fare for all tyrannical regimes (p.474). However, this political isolation cannot break all contacts between men, the corresponding condition to isolation in human life as a whole is loneliness.

Arendt again makes a distinction, between loneliness and solitude. Solitude is simply being alone or ‘by myself’, for Arendt solitude can still involve a dialogue between ‘me’ and ‘myself’. By contrast, loneliness ‘shows itself most sharply in company with others’ (p.476). Loneliness is the ‘experience of not belonging to the world at all’ (p.475). The experience of loneliness requires the company of others because our identity is constantly confirmed by the company of equals, thus, the experience of loneliness, of not belonging with anyone else ultimately means an end to the self as well.

This is necessary because totalitarian movements embody a total ideology. Only lonely, gullible people who lack common sense and need an anchor in their superfluous world. Arendt gives these rather mystical sounding phrases a concrete basis with her notion of the masses. Essentially, Arendt argues that totalitarian movements (in contrast to all political movements that preceded them) are ‘mass organizations of atomized, isolated individuals’ (p.323). For Arendt, then, totalitarianism depends upon the existence of the masses; for Arendt the masses are a somewhat contradictory phenomenon, produced by bourgeois society. Essentially, they are the embodiment of loneliness so as such the masses are a ‘mass’ of atomised, individuals who have also lost all sense of self (p.311). She ascribes the rise of the masses to the growth of bourgeois society:

The truth is that the masses grew out of the fragments of a highly atomized society whose competitive structure and concomitant loneliness of the individual had been held in check only through membership in a class. The chief characteristic of the mass man is not brutality and backwardness, but his isolation and lack of normal social relationships.
p.317

Reading Arendt’s account of the masses I was struck by two things, firstly, its similarity of Pashukanis’ account of the law, and secondly, the complete absence of the law from Arendt’s particular discussion. Thus, as Pashukanis notes (in the General Theory of Law and Marxism ‘law … is a method of relating atomized social elements’ (p.90), furthermore, from my favourite quote:

Law is simultaneously a form of external authoritative regulation and a form of subjective private autonomy. The basic and essential characteristic of the former is unconditional obligation and external coercion, while freedom is ensured and recognized within definite boundaries. Law appears both as the basis of social organization and as the means for individuals "to be disassociated, yet integrated in society".
p.70

Here Pashukanis demonstrates perfectly the way that law mirrors the contours of the mass man. While it is clearly a way in which individuals relate to each other, it also posits these individuals as atomised, isolated, monads. In other words, one of the prime pre-conditions of totalitarianism, the creation of a mass of atomised individuals is perfectly homologous with the law, this – at least – should be an area of investigation.

However, insofar as Arendt mentions law, it is to talk solely about its inefficacy or its abolition. So, on the one hand, she argues that ‘[t]he first essential step on the road to total domination is to kill the juridical person in man’ (p.447) by placing certain people and certain regimes outside of the protection of the law. This is really just a deepening of Arendt’s classic engagement with the nation-state and the rights of man. Basically, Arendt argues that the phenomenon of refugees and displaced persons undermined somewhat the claim to alienable rights – independent of any particular national laws. This is because the point at which people lost their nationalities – and became refugees – they lost all their rights. Even in the democratic countries they would very likely be placed into camps and had less rights than even criminals (who are at least subject to the procedural rigours of the law). Thus:

The paradox involved in the loss of human rights is that such loss coincides with the instant when a person becomes a human being in general—without a profession, without a citizenship, without an opinion, without a deed by which to identify and specify himself—and different in general, representing nothing but his own absolutely unique individuality which, deprived of expression within and action upon a common world, loses all significance.
p.302

Arendt opines that this is because major figures were convinced that civil rights (that is to say the national rights of citizens) were the concrete embodiment of human rights, as such the nation became the heart of human rights. More generally, Arendt argues that the abstract, individual, ‘human’ rights only make sense inside of a stable social hierarchy, which includes not only the nation, but also the class and political structure:

Democratic freedoms may be based on the equality of all citizens before the law; yet they acquire their meaning and function organically only where the citizens belong to and are represented by groups or form a social and political hierarchy.
p.312

So the point for Arendt is that with the disintegration of these hierarchies (following the war and owing to the general atomisation occasioned by the development of capitalism) produce the masses, which creates a politics ripe for the abolition of the juridical person. What this account seems to miss is the intimate inter-relation between law and atomisation. Rather than being ‘ineffective’ in the face of atomisation law seems to be an embodiment of this atomisation and – perhaps – an attempt to mediate it, without ultimately overcoming it.

But more than this, Arendt fails to consider the way in which, owing to its close connection with capitalism, law produces atomisation – and so contributes to the formation of the masses, as well as the undermining of stable hierarchies. Social atomisation is – of course – occasioned by the development of capitalism. But capitalism is not just an ‘economic’ system, as Pashukanis has shown, the commodity form always throws up the legal form alongside it – the atomisation of capitalism is the atomisation of law. This becomes even more relevant when we consider the ways in which capitalism brings people ever closer together, this concentration of human beings (in the factory etc.) combined with the atomisation of the law creates the preconditions for the development of the masses.

Another aspect of this atomisation is the social disintegration described by Arendt. In his introduction to the third edition to the General Theory (1977, Ink Links) Pashukanis describes the process by which law becomes the main form of social regulation as:

[T]he disintegration of organic patriarchal relations and their replacement by legal relations, that is to say relations between formally equal subjects. The dissolution of the patriarchal family, in which the pater familias was the owner of his wife’s and his children’s labour power and its transformation into a contractual family in which the spouses conclude between themselves a contract of their estate, and the children … receive wages from the father, is one of the most typical examples of this development.
p.41

The whole thrust of the law is to break up formally recognised hierarchies and replace them with collections of formally equal individuals. This is not just true of the family but more generally. So for instance, Arendt puts a lot of stress on the nation-state, but the thrust of rights-talk has been to juridicalise the nation. Firstly, in the sense that in many cases the ‘idea’ of the nation is reduced to its ‘Constitution’, its ‘Declaration of Rights’ etc. Secondly, in the sense that nationality itself is juridicalised, with the nation no longer seen as an organic social hierarchy but instead a collection of formally equal citizens. Thus, if the law does require social hierarchies to give it substance (and I would really want to qualify this, it’s clear that the law requires something and here I think Rasulov’s notion of the Poulantazian state is very useful) it nonetheless tends to dissolve these very hierarchies.

Thus, even if we are to characterise totalitarianism as without law (and this is always hugely problematic even, I think, inside the camps), it is not the case that the law is simply ineffective when confronted with totalitarians. Instead law was essential in creating the conditions in which totalitarianism could flourish. Law with its emphasis on creating abstract, formally equal individuals and then allowing them to interact as such, is the perfect embodiment of the atomisation and loneliness that gives rise to the masses. This incidentally perhaps tells us something about our own political practice. Often we on the left insist on the right to – say – a minimum wage, benefits etc. in contradistinction to gaining them from charity. In a way this has to be correct because we don’t want people to essentially be dependent on the will of others in the form of charity. However, what charity does do (although even this is increasingly undermined by juridification) is maintain a human relationship as opposed to an abstract, atomised, distant one. The challenge then is to find a politics beyond both abstract rights-talk (which might lead the way to totalitarianism) and romantic organicism, that is to say to find a politics in of the active subject that collectively intervenes in the political sphere.

More on Gaza

Sorry I haven’t posted in a while. I’ve actually been meaning to write something like this post but I’ve had stuff on. Recently, criticism of Israel’s Gaza offensive, and in particular legal criticism of these actions, has grown pretty intense. One early – and very interesting example – was this letter to the Guardian, which is signed by some very good people, a fair few of them being critical legal people too. The general structure of this letter – a legalistic argument, invoking academic authority and a mixture of critical and mainstream academics – makes it very similar to a previous this intervention against the Iraq war. As such, the same considerations expressed in this very incisive critical reflection on the problems of such an approach resurface. One of the limitations I found with this piece was what struck me as a ‘liberal’ approach which, rather than naming any of the parties involved in the action, equally condemned both sides and elided completely the historical and material context of the assault, merely noting a series of laws which (by implication) have been violated. In this respect I think this letter in the Guardian was much better and I think that it is quite telling that it is fairly obviously not a lawyers’ statement. However, I’ll return to this point a bit later.

Aside from the above-mentioned letter there has been a raft of articles, opinion pieces etc. arguing that Israel has committed war crimes. Now, as was clear from my other postings in this area, I am unconvinced that even the substance of legal argument here can be marshalled into a particularly progressive direction. My basic argument in this respect is that the law is at best indeterminate and, more than this, seems very unlikely to be able to actually limit the behaviour of imperialist states. But, as Susan Marks has noted (2000: 144):

[I]ndeterminacy is at one level international law’s weakness, at another its greatest strength. It is precisely because principles are contradictory that we are able to find in them counter-systemic logics. It is precisely because norms are unstable that we can lead them to ‘surpass themselves’.

Perhaps, then, what we are seeing is indeterminate legal argument being driven by a powerful popular movement and used to condemn Israel’s actions. However, I would argue that even if this is the case, there are still some big formal and substantive limitations to this practice, which may point to the inefficacy of using law in such a way.

So I think the first important point to note is a procedural/jurisdictional one. This is very well summarised by LWC. Basically, if we want the language of war crimes to have any critical bite, it seems necessary that we have some kind of forum which can definitively say that the events which took place amounted to war crimes and pass on some kind of punishment – viz. a court or tribunal. But, as LWC notes the procedural bars to this seem pretty difficult. The first complicating fact (which will resurface continually in the technical-legal debate) is that there is no ‘state’ of Palestine. There are a Palestinian people, who have a right to self-determination, but the land they occupy is a legal anomaly. Secondly, the ICC is out, aside from the state problem identified above, Israel is not a signatory to the ICC Statute. The next option is some kind of Security Council action – this could involve assigning the situation to the ICC or using a resolution to establish a separate tribunal. What with the United States remaining a permanent Security Council member, with the attendant veto power this seems highly unlikely (and I don’t think an Obama Presidency will alter this basic fact).

Thirdly, we can talk about universal jurisdiction. Well, it’s certainly the case that war crimes may attract universal jurisdiction (the majority in the Arrest Warrant case seem to say this) but this is not enough. Because while national courts may have jurisdiction over war crimes it is necessary for the ‘war criminals’ to be in the country, be apprehended and then tried. Now, even assuming the first two requirements come into fruition most national courts have ‘safety valves’ which basically allow them to avoid such prosecutions, we already know that these ‘safety valves’ can and will be used in the case of Israeli officials accused of war crimes. The best we can hope for with this type of reasoning is that certain Israeli officials (those who are not protected by immunities) can be made to feel a bit uncomfortable about travelling abroad. Fourthly then, to the best (indeed possibly the only) hope. As reports have indicated, it is possible that the General Assembly might ask the International Court of Justice for an Advisory Opinion on the matter. There are real questions about the competency of the ICJ in being able to reconstruct the facts on the ground to a great degree of accuracy. The problem of Palestinian non-statehood also resurfaces here as it becomes very difficult to determine what obligations are owed to and by an anomalous entity such as Palestine. This is assuming – of course – that the ICJ doesn’t simply say that the facts are not within its jurisdiction (which some people think is the sensible option).

Assuming that these barriers are overcome, I think there are a series of problems which mean opposing actions in terms of ‘war crimes’ etc. tend to mean that this opposition assumes a ‘liberal’ character. I would argue that this liberal character makes it very difficult to understand and fully oppose Israel’s action in Gaza and its general oppression of the Palestinian people.

So, what we should first note is that all the talk of war crimes is highly likely to focus on a series of specific events – the use of white phosphorous, the attack on UN buildings, the attack on the school etc. – rather than on the attack as a whole. As I’ve previously said, I remain unconvinced that the proportionality argument will hold up once we get to the nitty gritty of legal argument. But even assuming it does, this doesn’t condemn the attack per se but merely the way in which it was carried out. What seems very likely then is a series of de-contextualised ‘events’ which miss the bigger picture.

It is this tendency that really bothers me about the ‘war crimes’ arguments. I’m worried that in focusing on these highly specific acts, and apportioning blame to a series of ‘guilty’ individuals we miss out on the broader structural and systemic logics (as well as the everyday concerns) which have driven this attack. This is quite evident by the fact that the media – and legal attention – only flared up when there was a direct, military assault on Gaza. Very few of the legal commentators have mentioned the blockade and the great suffering it has caused (with a few honourable exceptions). It’s quite interesting that when the blockade has been mentioned at all, it is only in conjunction with the notion of a ‘humanitarian crisis’ in the Gaza strip, yet the language of ‘humanitarian crisis’ seems to elide the deliberate, conscious nature of the creation of this crisis.

Even if the blockade is brought into view (and this seems highly unlikely) legal talk – which is about abstract obligations and which state/individual violated them – fails to get to grips with why it is that that Israel acts in the way it does. I don’t want to engage in a massive analysis here, but it is pretty clear that Israel is adopting the classic colonial rhetoric of condemning the natives as backwards and inhuman, with lives that are worth much less than the lives of the settlers. If Israel is driven by this logic, then simply condemning its actions as criminal is not going to solve anything.

This lack of a focus on the broader issues is reflected in the way that legal argument treats the actions of Hamas. A lot of the legal commentary seems to unproblematically accept that Hamas’ actions constituted a , the problem is simply that Israel overreacted to this. But this can only be achieved through abstraction. One might just as easily treat Hamas’ actions as a response to Israeli actions. The only way to properly understand the conflict is to look at its historical and material context – not just isolate a particular crisis and begin to ascribe responsibility. Legal argument also has to almost ritualistic denunciation of Hamas’ actions of also breaching international law. What is interesting here is that Hamas’ actions are simply per se illegal by virtue of their low technology (which as Chris Bertram points out is morally bizarre). Furthermore, the liberal legal concentration on abstraction completely ignores the massive difference in the scale of the thing – equally denouncing two sides of a conflict when one side possesses a massive technological advantage and has killed a great many more civilians amounts to taking sides.

So – in a nutshell – my problem with the ‘war crimes’ line is that it treats the attack on Gaza as a kind of unique crisis composed of a series of mini-crises, none of which is linked to the broader dynamics of the ‘conflict’. But unless we understand these dynamics how can we hope to change them? Indeed there's a sense in which legal criticism in this respect is a sort of (to coin an Adornian phrase) pseudo-activity, which lets us feel better (and genuinely does achieve something albeit something quite small) without addressing the more important, difficult issues.

[In my head - a week ago - this came out a lot better, but it makes a few ok points, so I'll let it exist]

The Non-War on Terror?

So, one story in this week is David Miliband’s repudiation of the ‘war on terror’. Now, notwithstanding the obvious cynical timings of the remarks (viz. just before Bush goes and Obama comes in) I can imagine that there are a good number of liberals (although not those of the cruise missile type) who draw hope from these words. The same can evidently be said (with less caveats) for the incoming Obama administration, especially in light of the noises Hillary Clinton has been making.

Personally, I’m not so sure. This is not to say that I think these people are lying (although they could be) but rather that this change in policy is much more likely to be a change in emphasis, with the same systemic, structural and conjunctural forces shaping this policy as before. However, I do think that Miliband’s piece illustrates – quite usefully – a certain liberal take on the war on terror.

Importantly, Miliband argues that:

The phrase had some merit: it captured the gravity of the threats, the need for solidarity, and the need to respond urgently - where necessary, with force.

These ‘merits’ should be borne in mind, because I think they tell us more than you might think initially. Having identified these merits Miliband goes on to identify some of the problems that he associates with the ‘war on terror’. Firstly, it ‘gave the impression of a unified, transnational enemy, embodied in the figure of Osama bin Laden and al-Qaida’ whereas in reality ‘the motivations and identities of terrorist groups are disparate’. Secondly, (and I think this is especially important to Miliband) it ‘implied that the correct response [to terrorism] was primarily military’.

I think that this misses a good deal of the real importance of the war on terror. The idea that the war on terror merely implied that the ‘correct response was military’ whilst obviously being correct (as the alternative could have been criminalising terror) misses the way that it also shapes the way in which military force can be used. In other words, Miliband’s analysis of the ‘military’ aspect of the war on terror misses its legal aspect. In this respect it’s worth revisiting an old post I made on a great article by Fredric Megret. Essentially, Megret points out that the logic of declaring a ‘war’ on terror didn’t just mean that ‘the correct response was primarily military’ but also that (owing to the continuous threat of terrorism and presence of terrorists all over the world) this military force was temporally and spatially unlimited – in other words it was a right to intervene anywhere, at any time.

This unlimited right to intervention comes with a second point, which again shows us that Miliband misses some of the (legal) import of the war on terror. For Miliband the logic of the war on terror treats terrorists as one unified bloc, again I think this is a shallow analysis that misses the real function. Because of course if – as above – the war on terror rhetoric lets you intervene against terrorists anywhere and at any time then we have a problem. Unless this ability is limited then certain rogue states etc. might take it upon themselves to use military force against their enemies. Thus, the designation of terrorists as the ‘enemy’ and (further) of certain states as ‘terror states’ or ‘terror supporting states’ is absolutely crucial. These states become disallowed from using force. The converse of this (and again this is crucial) is that certain non-terrorist, good states gain the right to act in the above special way.

Linked to this is that making terror ‘central’ in the way that the war on terror does means that terrorism is posited as threatening the integrity of the international system. In practice then, the move to war, created a legal situation in which a few – western states – are able to use violence, anywhere and at any time so as to secure the interests of the international system. In other words, the war on terror was a way for a certain section of imperialism to legally entrench its capacity for intervention against its enemies (because terrorists always reside somewhere an attack on terrorists is always an attack on a state).

Even in this piece Miliband doesn’t do this. Let’s return to the merits that Miliband identified with the war approach – clearly the sum total of these remains the same, terrorism is a massive threat (that must sometimes be met by force) and ‘solidarity’ has to be invoked against it. Indeed according to Miliband a community of ‘values’ is what needs to respond to terrorists.

So, in practice, what I have identified as the most salient features of the war on terror seem to go unchallenged by Miliband. This should not surprise us. Miliband has always been an advocate of humanitarian intervention. Indeed in November of 2008 he wrote an article defending ‘liberal interventionism’ (and this phrasing is important - liberal interventionism is - theoretically - much broader than mere humanitarian intervention). As I have previously noted, those salient features of the war on terror are – in some sense – a continuation of humanitarian intervention, whereby certain ‘liberal’ states gain the special right to intervene in other states, in the name of protecting the universal values of the system – e.g. human rights. Again, as I have noted before, these attempts at entrenching imperial power strike me as stemming from a structural weakness of Anglo-American power, which is seriously challenged on all fronts by a resurgent Russia, by China, by certain states in the Middle East, by Latin America and by domestic movements. This can only be exacerbated by the current economic problems.

So rather than address these key features, what is it that Miliband wants? Well it strikes me that his key manoeuvre is an attempt to move away from the perceived military focus of the war on terror. So what does Miliband want instead?:

Terrorist groups need to be tackled at root, interdicting flows of weapons and finance, exposing the shallowness of their claims, channelling their followers into democratic politics.

And from the liberal interventionism article:

Intervention should not always be military and only rarely be forcible. We must focus on intervening early, before a country descends into full-scale conflict – much as the international community did in Kenya following last year's election.

Where troops are needed, we must plan rigorously for the immediate aftermath. The first months after a military intervention are critical to maintaining local support and legitimacy. We must recognise that military solutions alone will not stop conflict. We need a civilian force – police, judges, engineers and others – with the professionalism and responsiveness of the armed forces. There needs to be clarity about who is in charge of the international presence, rather than fragmentation between countries and between military and civilian operations.

So, basically, Miliband wants to keep the scope of the war on terror in place, but wants to make a – quite Foucauldian move – from the ‘sovereign violence’ of war to the power of discipline. So he is basically proposing that certain imperial states have a monopoly on intervening in any number of seemingly domestic fields in countries on the periphery. Now, the first point to note is that this clearly isn’t something we should celebrate, there is at least something honest about invading a country and using military force. But also we need to realise that this is nothing new. Imperialist states have been claiming this right – or actualising such a ‘right’ in practice – since imperialist states first came into being. More importantly, the war on terror always involved this stuff too. It may be true that the Bush regime foregrounded military violence as being particularly important – but it also skilfully used the UN (with the Counter Terrorism Committee, 1267 Committee etc.), sanctions, aid etc. to achieve its aims. Now it may be true that the Bush regime was slightly less flexible than Miliband’s proposal, but I really don’t think there’s a fundamental break.

So then, why the rhetoric? Well, a big part of it has got to be ideological (in the crude sense). Knowing how unpopular the old war on terror is it becomes necessary to differentiate oneself from it. Shrewdly then, Miliband (and by extension Obama et al) is able to differentiate himself from ‘Bush’ without actually changing very much at all.

This is very clear in relation to international law. The Miliband-type liberal claim is that the Bush regime simply ignored international law and what has to be done is to ‘move back’ to the rule of law. But – and I think China Miéville puts it best – the problem with this is that:

[I]t allows right and left to agree on an agenda which actually obscures many truths of power. So for example, much of the mainstream left will stress how there has been a neo-conservative revolution manifested by an upsurge of violently aggressive unilateralism, a complete denigration of international law, the complete ignoring of its European partners and so on. What I would say is that in fact the American ruling elite are, and have always been, much more split and nuanced and variegated on these questions, as have the European elite, than that would suggest; and that this discourse of the European liberal left creates a kind of simplistic bogeyman. For every Richard Perle, saying that international law is dead, yay-hay, there is for example a John Yoo, very eruditely defending American imperial interests in international legal terms … So this discourse of revolution—from the right it can legitimate certain things, such as Guantánamo, which I’m not prepared to legitimate; and from the left, it lets European social democracy and some apparatchiks of American power equally off the hook.
p.8

(China has written a fantastic article on Haiti that deals with these issues which will eventually be available in the Finnish Yearbook of International Law – everyone must read it as soon as it comes out). I think the point here is totally right. The particular ignorance of the war on terror’s intimate connection with international legal argument was something I think both left and right wanted to promote in public. The right got to pose as big strong men. The left was able to ‘let law off the hook’. What was really important about this was that the liberal-legal-left could totally deny any complicity in the war on terror, brilliantly, when it was their turn to promote imperial interest they could simply claim to be restoring the ‘rule of law’ without really changing very much (and indeed changing very little fundamentally) [note - Phil has a good post that (as ever) disagrees with me, I need to address this properly].

Such are the politics of imperial law.

Gaza and the Uselessness of International Law

And so the slaughter in Gaza continues unabated. There’s really very little I can add to the commentary on this situation, particularly that written and linked to the Tomb (which really has been a bastion in this respect). However, I do think a few brief words about the law are in order. Right from the outset I should say that much of this is simply the application of a previous post to the concrete situation in Gaza.

In some respects it’s quite noticeable that there hasn’t been that much legal commentary on Israel’s actions. There have been bits here and there (and more has come out recently, which I’ll refer to later on) but nothing especially in-depth. One thing that has been pretty ubiquitous though has been a generalised sense that Israel’s actions have been ‘disproportionate’ and have – in some way – breached international law. In theory this might point to the progressive role which international law could play in criticising Israel’s actions, but actually, when we delve a little deeper, I think it shows that international law is – at best – useless.

So – proportionality. Proportionality has lots of different meanings in legal discourse, but for our purposes there are two ways in which it applies. To begin with there is proportionality’s role in the jud ad bellum – the law which regulates when it is permissible for a state to use force. Basically, in order for an act to ‘count’ as self-defence it must be necessary and proportionate. Now, this is probably the way that ‘proportionality’ criticisms can have most traction. But it is really quite difficult to argue here. That’s because – in recent times – there has been a lot of talk about what sort of force is proportionate to an accumulation of smaller attacks. The consensus is that the force deployed has to be proportionate to the threat of the attacks – not just to the number of lives lost on one side – so Israel’s response doesn’t have to be proportionate to the number of people killed in Israel, but to its objective of stopping the rocket attacks.

The particular crux of this objection becomes even more powerful in the light of jus in bello, the law that regulates the use of force once a conflict has begun. Typically what is invoked here is Additional Protocol I of the Geneva Convention; this is the strongest widely accepted international humanitarian law treaty and much of its content has achieved the status of custom, but (I’m pretty sure) Israel is no longer a party to it, with the Supreme Court being ambivalent as to its status. However, we won’t go into these questions but will instead look at this particular treaty on its merits. The crux of the ‘proportionality’ issue (although proportionality is never named as such is Article 57; the vital points to note here are that (57(2)):

2. With respect to attacks, the following precautions shall be taken:

(a) those who plan or decide upon attack shall:

(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects … but are military objectives …
(ii) take all feasible precautions in the choice and methods of attack with a view to avoiding and in any event to minimizing incidental loss of civilian life, injury to civilians and damage to civilian objects
(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated

2(a)(iii) deals with proportionality. What is vital to note here is that the proportionality calculus is not between lives lost on either side; incidental civilian loss has to be proportionate with the anticipated military advantage. And here we come to the real problem with proportionality calculi. In order for proportionality to work it is necessary that the two things that are being compared are commensurable. But how can we possibly say if loss of life is ‘excessive’ in relation to an anticipated military advantage? The two cannot be reduced to some similar ‘substance’ that could be compared, and even if they could there is no standard which says ‘how many lives lost’ is excessive and how many aren’t. The only thing that the test can do in practice is compare different attacks (would this one kill more than the other), but here the law shows a massive degree of deference to commanders.

We can immediately see how this is problematic in relation to Gaza. The objective – stopping the rocket attacks – cannot be compared to the number of civilian lives lost and it is difficult to think of a less destructive way that this could be achieved. I think that the wild difference in opinions (all of which is articulated under the rubric of ‘proportionality’) points to the emptiness of the test. An objection that might be raised is that some of these opinions are just cynically deploying international law, but have their own agenda. But the problems with this approach are obvious, firstly, international relations is absolutely chock-a-block with people who have agendas – everyone has one – so using international law with an agenda is a pointless objection; secondly, it is precisely because divergent agendas can be expressed through international law that we can’t rely on it to support our own agenda.

This is exacerbated by the fact that ‘military objectives’ are pretty widely drawn in IHL. Under Article 52(2) of Additional Protocol I, military objectives are defined as:

[T]hose objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

As is obvious to anyone reading this, this definition includes ‘dual use’ targets, targets that would normally be ‘civilian objects’ but which are used for a military purpose – also, this definition is sufficiently broad to include power stations, bridges etc., proportionality is what is supposed to ‘limit’ this. In a situation such as that in Gaza this is massively problematic because on top of the normal problems of an industrial economy (whereby vital civilian amenities serve the military) the rocket attacks come from dispersed, diverse locations. Now whilst there is a presumption that civilian objects are not military ones (in situations of doubt) – the particular structure of the law tends to mean that in Israel can – with some legal justification – claim a wide range of targets as military objectives.

Over at Crooked Timber Daniel has mounted a valiant defence of the law, arguing that the requirements of a concrete and definite military advantage serve to limit what can be done. In practice I don’t think this actually works. State practice in this area has supported a pretty broad reading of this (indeed Daniel’s reading doesn’t ever seem to have been followed). Furthermore, I assume Israel would claim that its individual attacks were all directed towards specific targets which their intelligence had shown contributed towards the rocket activity.

Note, that the point here is not to say that international law is unambiguously on the side of Israel. What I am saying is that the tests are so open, so empty that the particular model of violence that Israel has pursued – the sustained bombardment of a fairly defenceless population – is possible to justify in legal language. The very fact that legal argument is contestable in this respect points to the fact that we really ought to steer clear of condemning Israeli acts as criminal, disproportionate etc., as Israel’s defenders can just muddy the waters by making their case. We should criticise the attacks for what they are – a brutal massacre of an unruly population driven by colonial logic – and criticise the law for being so equivocal.

I think this deserves a bit more consideration (particularly on the progressive potential of indeterminacy), so I may need to write a little more on that.

Addendum
One really important issue here that I haven’t really discussed is the way that legal claims de-contextualise the conflict. I think its vitally important that we grasp the particular imperial/colonial relationships that gave rise to this conflict. Moreover, there’s a sense in which ‘disproportionate’ violence (taken here to mean that Israeli lives are treated as worth more than Palestinian lives) is a structural feature of Zionism. Any state that is based on the dispossession and continuing oppression of the previous inhabitants of the land has to devalue these inhabitants. This is what produces statements attributing all responsibility to Hamas, this is what treats all adult male Palestinians as non-civilians. Even if IHL had more traction, it couldn’t possibly touch these deep, structural causes.