After East Ghouta 3: Indicting the Law

It remains remarkable, and instructive for our theory of this peculiar historical moment – which Timothy Garton Ash has just dubbed “withdrawalism” ((“To the many critics and downright enemies of America around the globe, I say only this: if you didn’t like that old world in which the US regularly intervened, just see how you like the new one in which it does not.”)) – that so many politically engaged idealists alarmed about torture, targeted killing by drone, and passive collection of telecommunications metadata prefer we look the other way when it comes to the gassing of hundreds of people in their homes, right before our eyes, just beyond our fingertips, or when it comes to a regime for which the execution of such an atrocity is characteristic.

The quandary that results, equally the condition that results in that quandary, appears in perhaps its purest form in the self-contradictory language of contemporary international lawyers, who confront a seemingly insoluble conceptual challenge. Professional proponents of the UN Charter system, they struggle to fit military and other actions that bypass it into a format intended to be universal, but continually revealed to be inadequate or at best incomplete. Some will declare any violation of the letter of the Charter, as they interpret it, simply illegal, as though a judgment whose clearest effect is to put its own significance in doubt might gain force from repetition. Activists who would never let antiquated notions of sovereignty and legality for their own sake stand in the way of their ideals will then cite those judgments as if moral commandments. Those jurists who, by contrast, sense a need for action will speculate about measures that may be “illegal but legitimate” or (paraphrasing) “illegal but mitigated,” or qualify as a “justified breach of law.” Early in the Syria crisis, before the US-Russia deal took shape and the only apparent question was as to US-led military action, one political scientist and international law specialist referred to the apparent illegality of such action as itself (emphasis added) an “indictment of the current state of international law.”

This quasi-lawful suspension of the law on behalf of moral or natural law ((…or lawful extra-legality or law prior to or beyond law or higher law or basic law or fundamental norm or even eternal or divine law…)), this arraignment of human-made law in a court above all courts, is habitually cited by governments when they act with or without UN Security Council permission. By such constructions the United States has, for example, justified pre-emptive war after the attacks on the World Trade Center and the Pentagon; dependably backed Israeli military exploits; and, as far as we know up to this moment, been holding an attack on Iranian nuclear weapons development in reserve. On the last issue, every serious American presidential candidate will insist on “all options being on the table,” never on the importance of getting a UNSCR. 2004 nominee John Kerry’s suggestion, offered during a debate with President George W Bush, that pre-emptive warfare must “pass… the global test” of legitimacy was widely criticized and is still recalled mainly to deride his skills as a campaigner ((To debate moderator Jim Lehrer, September 30, 2004:

No president, through all of American history, has ever ceded, and nor would I, the right to preempt in any way necessary to protect the United States of America. But if and when I do it, Jim, you have to do it in a way that passes the test, that passes the global test where your countrymen, your people understand fully why you’re doing what you’re doing and you can prove to the world that you did it for legitimate reasons.

)): One might wonder if Kerry’s statements might better pass the domestic political test today, but the constituency for “must pass the Russian and Chinese tests” would, one suspects, remain vanishingly small.

What is true of all military plans is true of all plans, including legal ones: They do not survive contact with reality. ((“Everybody has a plan until they get punched in the mouth.”)) The eternal re-discovery by legal reasoning of its own insufficiency marks both end and beginning of any system of law and governance, the foundation of the law in lawlessness ((This figure is, of course, also a figure for the incapacity of reason to derive its own purpose from itself – e.g., “Reason alone can never be a motive to any action of the will.” Hume, Treatise of Human Nature.)), but the right invoked by the American nation, or by any nation or leader acting in self-defense beyond the UN Charter, appears at the de-legalized border or within the de-legalized zone, specifically not beyond it. The inherently illimitable and ungovernable national self-defense exception, the overcoming of the Charter system from within, relies on a universal, collective as well as individual right, fitted to our times, but as old as law, in short a popular right that both emerges from necessity ((…the space of “the exception,” emergency or tumult, plague, siege, chaos: state of nature…)), and retroactively constructs that emergence, typically producing new law. The issue that the Assad regime put before the American Congress, the American people, the President, and the world has been in this sense not a crisis of specific authorizations, orders, and effects in relation to Syria, or even a crisis of one or more international norms, but a crisis of international or global norms at all: of the possibility of global norms as realizable, recognizable, and enforceable at all; of the existence at all of an international or global community, or world state of states, that any concept of shared norms inherently implies.

Regarding East Ghouta, we begin with an underlying matter that we may comprehend viscerally more easily than we can explain or articulate. The particular norms in question here have frequently, and by opponents of US military action against the Assad regime somewhat obstinately, been reduced to a singular, somewhat frequently violated norm against use or possession of chemical weapons. Yet what differentiated the East Ghouta mass atrocity is its compounded nature, its mutually exacerbating violations of norms: The annihilation of masses of civilians by state power, the use of weapons of mass destruction, and also the undertaking of an action after repeated warning from the international community especially via its leading power. ((Except when belittled as a mere question of the President’s or his nation’s reputation after supposedly unwise “red line comments,” this last aspect of the East Ghouta atrocity is rarely taken seriously, yet helps explain the resolution of the immediate crisis.)) Critically and inherently, the use of chemical weapons in East Ghouta was prima facie evidence of this compounded crime, which need not be seen as objectively or empirically worse than other depredations to be seen as more dangerous, and therefore as implicating the perpetrators on a higher level than the use of bullets or other “conventional” arms to the same or worse immediately lethal effect. Using sarin gas in a relatively densely populated neighborhood of one’s own capital city is an act specifically against all conventions, “convention” being the term for the agreed legal codification of the norm, whose application realizes the world state, founded, or so we thought, on universal, absolute, and indefeasible rights of people. ((…which are realized through legitimate or recognized government, but can and must also be realized over and against self-de-legitimizing governments, not as or simply as exceptions to whatever regime of law, but as the foundation of any and all legality or legitimacy.))

Because legality is taken as itself a norm, as the veritable norm of norms for partisans of the UN regime, any innovations in legal interpretation seem to threaten the very civilizational project on which their implementation would depend. Yet that project is equally put at risk by crimes against humanity left unpunished and unchecked, and by regimes and other actors with the will and ability to escalate them. Both perceived necessities, rule of law and collective security, informed the new international legal regime as it took form, in San Francisco but also Nuremberg, in the years after the Second World War, which was itself the cataclysmic culmination of a long-developing re-orientation of world affairs. Suppressed by the language of the all-inclusive “nation,” but of pervasive political and social significance, this establishment of a new globalized, “united” political order implied a compromised or non-integral concept of nation-state sovereignty against the emergent world state of states. ((As perhaps best recognized by libertarians, the emergent world-state tends to require further elaboration of nation-state responsibilities. Relatedly: The preferred illusions on the liberal left are that social democracy is a product of peace, that the welfare state is not a dependent offspring of the warfare state. The preferred illusions on the American right are that the dissolution of the welfare/warfare state is possible, and, to whatever extent effectuated, must be desirable either for welfare or in regard to peace.)) The juridical notion of a crime against humanity corresponded to the birth or perhaps the maturation of humanity itself as an independent political agent or interest – indeed as the final determinative interest, though this transformational moment is only indirectly comprehended in the UN Charter, whose generally statist or nation-statist language qualifies it as backward-looking, and at the critical moment renders it self-pre-empting. Or, putting the same thought in terms of industrialized warfare (industrialized destruction of the masses) and super-weapons of super-massive destruction (weapons for the destruction of the masses), we can say that the related, quite evident real achievability of the destruction of the world city by city, state by state, people by people, or all at once, corresponded to, or required and requires, the rise of a world state, envisioned as a world state of states, but founded on behalf of the human species itself.

Jack Goldsmith, widely honored for resigning as Bush Administration Legal Counsel out of good conscience, refused to consider the tenability of any “self-defense” justification for U.S. action after East Ghouta: “No plausible self-defense rationale exists,” he asserted. Yet, like most legal theorists, even many or most of those within Responsibility to Protect circles, Goldsmith remains focused on the nation-statist interpretation strictly. From the alternative point of view, of the right shared by all as world citizens prior to and beyond national (or ethnic, or class, etc.) allegiance, the right of collective self-defense is at its strongest in the case of use of weapons of mass destruction against civilians, as in relation to all acts that tend to the normalization of total war. This right preceded and originally conditioned the current regime of international law, and was central to the case of the “United Nations” – in its transition from military alliance engaged in total war by necessity to institution designed to prevent it – against the defeated powers of World War II: The entire UN-based, post-Nuremberg international law superstructure exists as an attempt to prevent a return to conditions that lead all parties to a conflict to escalation reciprocally, bounded only by technical capacity – which latter, in the age of technology, is no bound at all. ((Or: realization in the world of the nihilism of technology tends toward the annihilation of the world.))

That foundational goal of the UN system is sounded in the appeal to “humanity,” and, if Goldsmith and others are correct about the present illegality of actions in collective self-defense, then East Ghouta may be where international law recedes but the world state of states remains, or ought to. Echoing Goldsmith, if from a position of obviously lesser expertise, Noah Millman wrote, “Nobody alleges that a strike against Syria [would be] an act in self-defense.” Though the so-called Article 51 self-defense exception was initially discussed in this context, specifically in relation to Turkey and other front-line states, the popular right of self-defense would be much broader, and already underlies the so-called norm: Put simply, we – all of us, from Manhattan to Ghouta – share a right of self-defense distinctly against total war. In relation to chemical weapons – demonstrated efficient tools of genocide (as the President just tried to remind us, apparently to little effect) – all citizens of the world, and through them all nation-states, share this distinct right of self-defense against their use against people as people: us all. Any erosion of that norm poses a threat to each and all of us, and to all of our descendants – if any.

To the extent we cannot construct or re-construct the principles for a collective right to life in the age of weapons of destruction of the masses and disruption of global-ecological homeostasis, those principles may be expected to construct or re-construct themselves for us, and through us.