Dan Drezner (cursed be his name) aptly sums up my thinking on international law and Iraq. First, I think he’s quite right to call out John Quiggin on the latter’s implication that international law has caused the reduction in wars since 1945:
Quiggin is factually correct that interstate war has been on the wane since 1945 (though whethera lot of interstate were simply replaced by civil wars between state proxies is another question entirely). Asserting that this is due to the ever-growing power of international law would be a reeeeaaaaallly big stretch. There is likely no one satisfactory answer to the question. Liberal internationalists would argue that as the world has become more liberal, it has become more peaceful. The spread of democracy, the rise of economic globalization, and the empowerment of international institutions have all made war a more costly and less desirable option. Realists would provide a different explanation. They would argue that the spread of nuclear weapons among the great powers in the system has provided a powerful dampening effect on systemic international violence.
Right; we have many plausible explanations for the reduction in interstate war, and the expansion of international law is, to my mind, among the least compelling of them. But with regards to the constraining impact of international law on US behavior:
Even under the aegis of current international law, it is pretty easy to devise justifications for a wide range of military actions. In part this is because — with profound apologies to Alex Wendt — international law is what states make of it. If the U.S. can’t go to the United Nations to justify action in Grenada, there’s always the Organization of Eastern Caribbean States. If the Security Council won’t support action against Kosovo, NATO will. Beyond the EU, there is little to no hierarchy in international law, and there are a sufficient number of international bodies such that a state can find casus belli somewhere.
The Iraq War as conducted was illegal, stupid, immoral, and very likely doomed to failure. If Jacques Chirac had not been President of France, or if he had decided to abstain rather than veto (and give cover to a bunch of other opponents of the war), then the second UN resolution may well have passed, making the war nice and legal. Assuming that this legality didn’t magically produce 150000 German, French, Canadian, and Russian troops ready to ship out to Iraq, the result would have been a war that was legal, stupid, immoral, and very likely doomed to failure. For all the complaints of neocons about international law and international institutions, the United States has a historically critical and extremely privileged position in international law. While it doesn’t quite extend to “it’s legal if we want it to be legal”, it’s not that far off, either. This is why I have always been skeptical of international law as a proxy for justice.
Now, this is not to take the extreme realist position that law has no impact on state behavior, or that increasing the density of law in international society is a bad thing. I agree with Delong, for example, that the US would benefit from a stronger set of legal prohibitions on aggressive (or preventive) war. But it’s critical to remember that the construction and enforcement of this law will inevitably favor the United States and whatever particular conception of the national interest that it holds at the time.