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”1 – 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 law2, 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 campaigner3: 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.4 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 lawlessness5, 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 necessity6, 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.7 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.8

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.9 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.10

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.

Notes:

  1. “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.” []
  2. …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… []
  3. 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.

    []

  4. Everybody has a plan until they get punched in the mouth.” []
  5. 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. []
  6. …the space of “the exception,” emergency or tumult, plague, siege, chaos: state of nature… []
  7. 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. []
  8. …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. []
  9. 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. []
  10. Or: realization in the world of the nihilism of technology tends toward the annihilation of the world. []

WordPresser
Home Page  Public Email  Twitter  Facebook  YouTube  Github   

Writing since ancient times, blogging, e-commercing, and site installing-designing-maintaining since 2001; WordPress theme and plugin configuring and developing since 2004 or so; a lifelong freelancer, not associated nor to be associated with any company, publication, party, university, church, or other institution. 

Posts in this series

3 comments on “After East Ghouta 3: Indicting the Law

Commenting at CK MacLeod's

We are determined to encourage thoughtful discussion, so please be respectful to others. We also provide a set of Commenting Options - comment/commenter highlighting and ignoring, and commenter archives that you can access by clicking the commenter options button (). Go to our Commenting Guidelines page for more details, including how to report offensive and spam commenting.

  1. Came across a quote that seems apt in some way, although not knowing anything about Nicholas of Cusa I can’t say much exactly what it’s saying:

    If modernity is a messianic concept of time, open to an unknown future, then our connection to the present must be restrained. Perhaps we are only sojourning here, poised and waiting for the end of time. On the other hand, just as urgently as during the Renaissance, it would seem that the “heart of modernity” is open to the “heart of antiquity.” The capacity of ruins to communicate, and the interest of ancient writings might be marvelled at again. Nicholas of Cusa demonstrated that a return to antiquity could lead to the discovery of new paths during a historical period of spiritual disquiet and political crisis.
    In the Middle “Nicholas of Cusa

    Apparently, his innovation was to argue that governance comes from the consent of the people:

    Over the last century scholars of political history have singled out chapters, particularly in Book 2, where Nicholas discusses consent as a prerequisite for legitimate law and government. Going beyond tradition and canon law, he argues on the basis of people’s natural freedom (“men are by nature equal in power and equally free”) that all governance comes from the consent of the subjects. This argument to explicitly institutionalize consent is Nicholas’ original contribution. He follows it with proposals on representation that move from representation as virtual impersonation to representation as delegation based on those represented selecting their representatives. This is one of the first explicit statements in the West of the institutional limits to be placed on rulers and of the idea that people must consent to their representative institutions.
    Casunus, Nicholas “Stanford Encyclopedia of Philiosophy

    Unfortunaely, seeing a critical point, as you suggest, is not the same as managing it. In particular, managing consent in the face of a “messianic concept of time” at odds.

    Just rambling here…fine post.

    • Thanks – in addition to helping with sanity-testing, comments also encourage me to look at the post and locate typos and other problems, so double thanks.

      The book referred to in the first quote looks interesting. I think I may put it near the top of my reading list: http://punctumbooks.com/titles/nicholas-of-cusa-and-the-kairos-of-modernity/ Have you read it?

      I did not know that Nicholas of Cusa addressed the particular consent/representation/delegation problematic, which I associate first with Aristotle and Plato, where it is mostly implicit, and which, as we’ve discussed, becomes a central and very explicit political-philosophical question during the transition to the modern mass society. It’s in a way at the heart of the ongoing argument with our friend b-psycho.

  2. I haven’t read it – right now my reading comprehension is over taxed between the Buddhist book I’m reading and your own estimable posts. At any rate the In the Middle crowd can come up some pretty interesting thoughts on Modernity through the lens of Medievality.

Commenter Ignore Button by CK's Plug-Ins

Leave a Reply

Your email address will not be published. Required fields are marked *

*

Related

Noted & Quoted

[E]ven Fox didn’t tout Bartiromo’s big scoops on Trump’s legislative agenda, because 10 months into the Trump presidency, nobody is so foolish as to believe that him saying, “We’re doing a big infrastructure bill,” means that the Trump administration is, in fact, doing a big infrastructure bill. The president just mouths off at turns ignorantly and dishonestly, and nobody pays much attention to it unless he says something unusually inflammatory.On some level, it’s a little bit funny. On another level, Puerto Rico is still languishing in the dark without power (and in many cases without safe drinking water) with no end in sight. Trump is less popular at this point in his administration than any previous president despite a generally benign economic climate, and shows no sign of changing course. Perhaps it will all work out for the best, and someday we’ll look back and chuckle about the time when we had a president who didn’t know anything about anything that was happening and could never be counted on to make coherent, factual statements on any subject. But traditionally, we haven’t elected presidents like that — for what have always seemed like pretty good reasons — and the risks of compounding disaster are still very much out there.

Comment →

So, does Mitchell make any money on the work, which has been shared so many times? He uploaded a high-res image of the symbol and granted permission for anyone to use it personally for free. But for those who want to support his work or simply want something readymade, you can also buy T-shirts, sweatshirts, mugs, and journals emblazoned with the symbol through Threadless.“I really just want to spread the image as much as possible and cement it in history,” Mitchell says. “In all honesty, the amount I’ve made from my Threadless shop so far is still less than my hourly rate, so I don’t really see it as a big deal. If you look at my Twitter, half the replies are people wanting to know where they can buy a shirt. Threadless is happy to help them out with that, and so I’m happy to let that happen.”Now that the symbol has flooded our streets and our timelines, Mitchell just has one request: “Impeach this idiot already,” he says.

Comment →

This is a Waterloo moment for Trump, the tea party and their alliance. They have been stopped in their tracks not only by Democratic opposition but because of a mutiny within their own ranks. Although never particularly liked or respected, it is now clear that they are no longer feared. The bankruptcy of their ideas and their incompetence have been exposed. Their momentum has been dissipated. Their rejection of political norms has itself been scorned. Our long national nightmare may finally be coming to an end.

Comment →
CK's WP Plugins

Categories

Extraordinary Comments

CK's WP Plugins