Saturday, June 09, 2012

Bruce Wilder 06.08.12 at 8:25 pm

    In the OP, Chris Bertram has identified two legs of what should be a three-legged stool, of legal justification and legitimacy: 1.) responsible discrimination between civilians and non-civilians, in conformity with the traditional law of war, as codified in treaties; 2.) the U.N. charter and respect for the sovereignty of other states. The third leg of the stool would be what James @60 identifies: conformity with a state’s own constitutional process, in the case of the U.S., the U.S. Constitution, and related statutory law and governing process.

    Leg number 1 has always been a weak reed. The concept of some respect for civilian lives and innocence is a lovely idea, but honored more in the breach than in the details of historic practice of war.

    Leg number 2 is a bit stronger, but, as other commenters have noted, is pretty much a dead letter, when any Great Power is acting in circumstances in which it is not effectively opposed another Great Power. When we hang George W. Bush for the invasion of Iraq, a clear and unambiguous war crime of the highest order, then the law of war and the U.N. charter will mean something.

    The last leg of the stool, though, points directly at the exposed foundation stone, that reveals what all the legs are resting on: the false claim that there is, or can be, a “war on terror”, or a war against any diffuse non-state actor.

    Intellectually, this is a problem of false categorization. If you accept as an axiom that there is a “war on terror” or even a “war on Al Qaeda”, and not simply a problem of violent criminal conspiracy, then you’ve passed through the looking glass into an impossible wonderland of contradictions and distorted notions of expedience.

    Discrimination between civilians and non-civilians? Here on planet earth, they are all civilians, even the deliberately intended targets. That someone, somewhere intends violence doesn’t make them soldiers in any belligerent’s army.

    U.N. charter and state sovereignty? If the U.S. is at war, with a state—and that’s the only kind of non-metaphoric war that can exist—then the laws of war apply. Otherwise—and this is otherwise—not.

    And, finally, U.S. constitutional process: the U.S. President is a caesar in a genuine emergency, but more than a decade later, the crazy is old, real old.

    It shouldn’t be just the legal niceties that trouble us. Constitutional process to constrain decision-making is what forces us to deliberate and to make rational, calculated collective choices, respect the feedback of results and consequences, and trouble ourselves with conflicting claims and proportionality, when employing the awesome power of the fully organized state. That Iran or Cuba could use symmetric justifications in tit-for-tat misses the real problem, because the justifications are just rationalizations for what Power does when it can. The real problem is the breakdown of constraints on Power, which are necessary to ensure that Power acts at least somewhat rationally and in response to deliberation. When Power is unconstrained, “good intentions” seem enough, and people in power, or acting at the behest of Power, forget to even reason about practical means and ends and consequences, embodied in moral principles or pragmatic precepts.

    The whole idea of a law of war, of a U.N. governing international relations, or a constitution for a republic, rest on long experience with the consequences of unconstrained, and expedient power, which discards reason as inexpedient.

    We’re inviting anarchy and the dislocation of all international relations, in the wake of declining U.S. power, chucking all the soft power claims, even as the hard power behind them erodes like a sand castle facing an incoming tide.

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