Iran and the Re-Legalization of War

Daniel Larison strongly backs Paul Pillar on the prospective illegality of attacks on Iran’s nuclear program by Israel, the U.S., or anyone else absent UN Security Council authorization. Pillar, who is in turn playing off of a post by Peter Jenkins that invokes the spirit of Thucydides, stresses the desirability of preserving a clear international legal and moral framework. Larison concurs, and focuses on the hypocrisy of interventionists who promote one standard of international conduct for the U.S. and allies, another standard for everyone else – just the kind of thing, it is widely argued, that causes “rogue” nations to feel justified in their own acts of defiance and especially in their determination to acquire their own WMD insurance policies.

Looking at Kosovo and other actions – especially the Iraq intervention, but also going back, as Larison points out, at least as far as Panama in 1989 – America and allies have severely and if not irreversibly undermined the international legal idealism of the UN Charter, under which the UN Security Council would have the final say, through lawful mechanisms, over inter-state military action except in cases of immediate self-defense. Another way of looking at the deterioration of that system, however, is that, as a result of the intransigent self-preference of all SC members, it had already proven inadequate and dysfunctional, and that alternatives were bound to fill the gap. That seems to be the view of advocates of humanitarian intervention as well as many others.

Either way, it’s also clear that an argument somewhat in line with intentions to restore but crucially re-configure an international framework has already been prepared, aiming specifically and inevitably at the self-defense exception. As Peter Berkowitz at Real Clear Politics explains, an Israeli or American or coalition intervention against Iran, without UNSC support either given or sought, may be termed “anticipatory self-defense,” a concept both underlying and following from Bush Doctrine, seen as adapted to contemporary technologies and threats, yet also defended as an application of immemorial “natural law.” Counter-Terrorism Adviser John Brennan deployed a version of it defending Obama administration anti-terrorist policy, and the (non-)reaction to the Israeli attack on Syrian installations is seen to have independently re-confirmed the approach.

A broadly defined and expansively applied doctrine of anticipatory self defense (pre-emptive war by another name) would completely circumvent the UNSC system, though, as with Kosovo and Iraq, but not with Syria, retroactive legal acknowledgement through the UN might still be sought. This multiply paradoxical pattern – of the undermining-maintaining lawful exception to the law – has always been inescapable for legal positivism and liberal theory generally. Any liberal order – perhaps any order at all – subsists as the suppression of this self-contradiction, to be identified as a consideration exclusively at the limits or for the extreme situation. WMD, terrorism, anti-terrorism, and genocide – eventually any kind of violence at all – all immediately place us at these limits, defining power itself as the power to determine our proximity to them.

In the meantime, this course of recent and possibly approaching events can be read as further erosion of the WW2 settlement, alongside tacit recognition that administration of a uniform and universal regime of fully legalized warfare seems well beyond the human race for now. Instead, we seem to be moving gradually toward a more sustainable spheres of influence structure, an uneven geopolitical web to be intermittently traversed by ad hoc coalitions acting on interpretations of their own particular and joint interests, or regional interests, or global economic or ecological or humanitarian interests. In some ways, this result is what conservative opponents of American internationalism (whether liberal idealist, hegemonist, or just imperialist) have always wanted, but, as those same internationalists have often warned their critics, escaping global-governance idealism may not equate with more conservative outcomes. Less political globalism does not necessarily mean less global activism, least of all for a maritime military-economic power like the USA.

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