jeudi 17 avril 2008

War and International law 3

This will be a developing study of a review of two books, one called 'War Law: Understanding International Law and Armed Conflict', the other, Of War and Law by David Kennedy that I came across in democratiya, by Irfan Irfan Khawaja instructor of philosophy at John Jay College of Criminal Justice, City University of New York. . I intend to come back to the review in numbers 2 and 1.

The books to be reviewed are just a cover for the author's intention to attack, what he sees as, a left wing argument against controventions of international law, more specifically in terms of war. Khawaja overall point is that the left is naive if they think appeals to international law carry any weight in criticising actual wars. The left and the books under review, ultimately". . .reveal invocations of international war law as a rhetorical bluff." The unsaid throughout the piece, of course, is that crying "But The Iraq war illegal!" is not an argument against the (what?) justifiability of its unrolling.

My first impression of the reviewer's argument was one of quizzical incredulity. It is true, I have read it hundreds of times, that left wing writer's do indeed use the "It's illegal!" tactic. I think a lot of stuff in the Socialist Worker took this line in the build up and aftermath of March 2003. Pilger and others also cited it as a reason for marching in Febuary of that momentous year. So it is a valid target, I suppose. There it is in the open - The left opposes the war because it is in contravention to UN, International or old style religious regulations, these laws are unsustainable and wrong, thus a large part of the left's argument is flawed. Thus (by implication) it's OK to support the war, at least if this was the only reason one was opposed to it.

Khwaja spends a inordinate amount of time and energy is disposing of the efficacity of the "It's illegal!" argument and feels satisfied enough at the end to give the strong impression that he feels he has done sterling work in defending the Empire's careering forary into the middle east. In the end, of course, he has but, it is at a heavy cost. We are familiar with the observation that the bourgeosie feel uncomfortable in discussing politics. Especially politics of a bare knuckled variety. The dwellers of leafy surburbias do not with to explore the history of what is on the end of their forks, for instance or just what it takes to keep the price of electronic goods down or the nature of wars fought in their name. For the thesis that Khwaja defends is an ugly one, but in the end one that the majority on the left are well aware of and have the experience of somehow 'flying over it' when it comes up mid dispute. If this is what passes for dinner table conversation in the decents' households, then desperation must have crept in quite a while ago.

Khwaga's argument against the notion of an international law acting as a bulwark against unprovoked aggression contains a number of parts, some more of which will be discussed above. For the moment, I will examine his critique of Lockean self defence theory and his domestic law analogy. It is clear to this writer at least, that under current historical conditions, there is indeed no international law or 'ultimate morality' which can underpin an enforceable law that would prevent or forestall armed conflict. Armed conflict is one important way that modern states or conglomerates of states behave. This, which Khwaga holds up in triumph does indeed mean that ". . .appeals to international war law are at best the beginning of a long argument, not the end of one." but as far as the decents go this postmodern argument has more than one edge.

But first, his argument against the traditional self-defence argument. Kwhaga mentions Locke as a source for this argument but does not cite where in Locke's writings this argument appears. But no matter. The self defence (SD) argument is as plain as its name suggests: only attack if you have been attacked. Kwhaga doesn't say this but by extension if this were somehow established in the minds of human kind as a 'law', it would be crystal clear to everyone that the invasion was illegal. The argument has to be liquidated.

Thus, Kwhaga believes that 'strict adherence' to the SD argument " would oblige a country to prefer annihilation to pre-emption of a threat even in the face of conclusive evidence of an imminent attack." There is no absolute justification for not doing this, though, - one might equally say to the threat of another power "It is better that I do not retaliate.", (Kwhaga raises this point in mock horror, but it is not so far fetched and after all 'Socrates' himself defends it in the Republic. But this is philosophers playing hard ball godammit. States have interests to defend and the icy mechanics of diplopmacy and war have no such time for any such whimsical ideas).

Kwhaga, also believes this impossibility of not retaliating implies the further relataed point that, "[i]t would likewise oblige a country to forswear the use of weapons or tactics deemed ‘disproportional’ even if this meant the difference between victory and defeat over an aggressor.". The ideology is poking through here a bit too much. The point is being stretched. To say 'If I do not attack you, then I myself will be anihilated' is one (disputable) thing. To say 'If I do not attack you with all the means at my disposal and blew the consequences' is quite another. (True, in this section of the review, Kwhaga does not go so far as to say that collateral damge is 'regrettable but inevitable' - but finally concedes the point in a section discussing the lack of differentiation between combatant and non combatant). This second part of his 'refutation' of the SD argument is nothing more than a defence of unprovoked aggression. It is not even a step from saying all is 'fair game in peace and war'. At this precise point, Khwaga's discussion spills over from 'philosophy' to rank propaganda. The philosopher turns pure rhetorititian. Kwhaga's aim, in the end is the defence of this (see graphic). Or rather not its defence but its keeping quiet, its obscurence, it effacement and forgetting-its-there-ness: a kind of looking without seeing. Even things like this don't alter the perspective much.

In the next section still focused on Byer's book, Kwhaga takes on he latter's evocation of Catholic Church's rules for limiting the extent of carnage whilst war takes place. He criticises the idea that international and domestic law are somehow analogous. He wafts awaty Byer's suspect ideas thus,

"Though Byers elsewhere makes use of analogies from domestic law enforcement, he doesn’t remark on the oddity of this arrangement. Imagine police officers and criminals being legally obliged to obey the same rules during violent confrontations between them — with the police expected to obey the rules despite the moral asymmetry between criminals and the police, and obliged to obey them even if the criminals routinely got away with violating them. Almost anyone would call this an absurdity, and yet in the context of international war law, it has the status of an axiom. "

The question begging is quite stark. It is assumed that the decents are the cops, the middle east other the criminals of course. But that aside, the most telling aspect of this is the breathless "Imagine" at the start of the second sentence. Imagine if police officers had to obey the rules! What not be able to let suspects fall down stairs in a southerly direction? Not be able to rough a crim over before getting him to cooperate in a bit more of a citizenly spirit. Well that would never do - all that "asymmetry" you see.

Besides, if Khwaga's argument is extended this far - if force and power go "all the way down" - what then for his cosy little decent world?

To be continued