The occupation of Iraq by the war coalition does not only represent the forcible imposition of a new imperial world order, but also rings in the end of international law as it now stands. For the first time in its history, the Security Council has accepted an occupation even though its members had previously challenged the legitimacy of this military intervention. Establishing this fact is by no means a purely academic matter. Opponents of the war, citing the statutes of the UN Charter, have continually stressed the fact that, with the invasion, the United States turned its back on the system of »collective security«. They say the UN, with its underlying ideal of peace and its democratic structures, should be protected from the »law of the jungle«.

The historical development of international law

Many pacifists treat international law as if it were a sort of constitution. The UN is then expected to act as a »world state« and enforce this law, using police measures if necessary. This is out of the question, however. The UN Charter is simply a treaty between formally equal states with a minimum of rules of conduct and feeble possibilities for imposing sanctions. In a nutshell, one could say that international law does not so much bind the international actors as cause them to reveal their motives for action.

This becomes clear when viewed in a historical perspective. During the last century, two events had a profound effect on international law as a legal system. The first decisive point came at the end of the First World War. This marked the close of an epoch that had begun with the Treaty of Westphalia after the Thirty Years’ War. The so-called »Jus Publicum Europeum« limited war between the Christian states, but the rest of the world was up for grabs and needed no overall system of control. This began to change in the 19th century. For the first time, with the supremacy of Great Britain, an international system of law was created that was tailored to the needs of the British world empire. Accordingly, the distinction between Christian and non-Christian peoples was shifted to that between »civilised«, »half-civilised« and »non-civilised« peoples. In the case of the »half-civilised«, rule took the form of a protectorate, while the »uncivilised« were treated as colonies.

After the First World War, with the founding of the League of Nations, the idea of a universal community based on international law was accepted at a formal level, at least; at the same time, however, the model of the protectorate in the form of mandates was not abandoned. The argumentation ran that there were peoples that were incapable of ruling themselves »under the extremely difficult conditions of present-day civilisation«. The former German colonies and all those territories that the entente had wrested from the Ottoman Empire as booty were given this status. From this »bankrupt’s estate«, the British drew up, among other things, the new state of Iraq, which they then took over as a mandate from the League of Nations. In 1930, the open colonial rule, continually troubled by revolts and rebellions, was replaced by a pact of alliance that coyly disguised the actual state of subjugation.

The Allies laid the foundations of modern international law in 1945 with their victory over fascist Germany and Italy, and imperial Japan. In the new UN Charter, the sovereign equality of all states was recognised as the basic principle of international law for the first time in history. The defeat of the Axis powers also meant the start of a new configuration of power: Great Britain, which, together with the USA, had exercised a sort of co-operative double rule over the world during the period between the wars, lost its prominent status. Now, the superpowers USA and USSR stood opposite one another, having become gravitational centres for two mutually hostile ideological camps.

When agreeing to institute a system of international law, the three victorious powers were in accordance that they wanted to bring into being neither a world government with a global police force nor a system of collective security. This would have meant a fundamental curtailment of state sovereignty, something none of the participating actors was willing to accept. For this reason, the »sovereign equality of all its members« was expressly laid down as the most important principle in the UN Charter. The United Nations represented solely a framework of co-operation for the superpowers, with certain possibilities of involvement given to the respective allied states in order to legitimate it. At the same time, the right of veto possessed by the big powers – i.e. every Permanent Member of the Security Council – serves to prevent the international organisation from being exploited by an opposing coalition.

Democracy and sovereignty

The »club« formed by the Permanent Members of the Security Council can be seen as a sort of event for forming deals. If the spheres of interest of a big power are touched upon in a particular conflict, it tries to gain an extended mandate from the Security Council in order to legitimate its regulatory policy – and finance it as well. The supervision of Iraq’s disarmament by a subsidiary organ of the Security Council was basically an action connected with the USA’s regulatory policy, supported or tolerated by the other nations. For a long time, the USA favoured the multilateral instrument provided by the UN, because it was able to use the mask of the United Nations as a cover to act as it pleased.

This practice highlights a fundamental deficit in the legitimacy of the UN structures. If one follows the theses proposed by Jacques Derrida in his new book »Voyous«, the structure of the United Nations combines the contradictory principles of democracy and sovereignty. On the one hand, the UN is meant to embody the concept of a world democracy in which all nations are represented on an equal basis. But in order for democracy to be put into practice, it needs an organ through which it can exert power. This is the Security Council, which determines when peace has been violated and, if necessary, restores international law by means of armed force. Article 51 of the Charter forbids the individual or collective right to self-defence against an armed attack until the Security Council »has taken the necessary measures«. This clause has given the big powers, as Permanent Members of the Security Council, a position of pre-eminence with regard to the policies of the UN, which leads to some far-reaching consequences: because »power belongs to the strong«, international law is subject to the military and economic balance of power and thus to the hierarchy of power. This »law of the jungle« even influences the conceptual structure of the Charter. At first, it lays down the democratic principle of majority rule, the vote in the General Assembly, the election of the Secretary-General. The principle of sovereignty is enshrined next to that of democracy. On the one hand, every nation is entitled to it; but, on the other, in order for the sovereignty of the UN to be effective, the Charter also accepts – arbitrarily, without being able to justify it - the pre-eminence of the Permanent Members of the Security Council. These two principles, democracy and sovereignty, are, according to Derrida, inseparably connected with one another but, at the same time, incompatible. In order for law to be established, democracy demands that a people, in this case a global demos, be ruled. It thus requires that there be a sovereign power that is stronger than all other powers in the world. But even though the creation of this power serves to represent and protect world-wide democracy, it at the same time betrays and threatens democracy by making itself immune to it. What the »community of nations« never mentions is the fact that there can be no sovereignty without force, without the force of the more powerful, whose justification – according to the law of the jungle – consists in overpowering everything else. The abuse of power through the Security Council or those powers that are its Permanent Members is thus inherent to the structure of this organisation.

Doctrine of dominance

Since the end of the Cold War and the collapse of the Soviet Union, the supremacy of the USA has been seen as secure. In view of this historically unique situation, American foreign policy and security policy has increasingly tended to rely not on multilateral agreements, but on simply overpowering rival powers or those that cause trouble. Interventions like that of the Third Gulf War are declared to be a part of basic policy, not least in order to give a profound demonstration of US supremacy to allies and potential competitors alike. This military hegemony is intended to bring in a »surplus« in the economic and political spheres.

This assertion of dominance is legitimated by citing the fight against »rogue states«. Even under President Clinton, the then Defense Secretary announced that the United States was prepared to carry out military interventions against such countries unilaterally – that is, without the previous consent of the UN or Security Council – whenever its vital interests were at stake. By »vital interests« he meant »unhindered access to key markets, energy resources and strategic resources«, as well as everything that had been declared to be a »vital interest« by US authorities. Thus – according to another of Derrida’s theses – to justify weakening or destroying a country whose policies are opposed to these interests, it is enough for the USA to consider such action as being in its »vital interest«. To legitimate this »law of the jungle«, the country that is felt to be a threat or in the way is branded as a »rogue state«. The USA has also developed a new preventive strategy to fit this principle: because there is no other way of preventing dictators and terrorists from attacking the USA than by military invention, the USA considers itself authorised to take pre-emptive action in future. Even in the past, it says, international law had often seen pre-emptive attacks as being justified when a direct threat existed. It maintains that this principle now has to be adapted to the »capacities and aims of our present enemies«. State sovereignty is not there to give protection to terrorists and rogue states.

Geopolitics

To justify the Iraq war to the global public, the American government at first cited the complete removal of weapons of mass destruction, then the stopping of terrorist activities and, finally, the establishment of democracy. Apart from these considerations, two vital interests in this region have long been of importance to the United States: the security of Israel on one hand, and, on the other, guaranteed access of the West to the oil fields. Associated with the latter is the prevention of hostile powers from controlling resources in the region.

Even though the USA has enjoyed great influence in the Gulf region ever since the end of the Second World War, it only began a more major involvement there when the Britons withdrew at the start of the seventies. US foreign policy at first focused primarily on checking the growing influence of the Soviet Union in this geostrategically central region and on securing oil supplies for global capitalist markets. In pursuing this strategy, the USA did not employ the direct presence of troops, but instead cultivated regional vassals. While feudal Saudi Arabia was assigned the role of keeping the oil market stable and cheap, the dictatorship of the Persian shah Reza Pahlavi was built up to become a regional military power. The Islamic revolution of 1979 deprived the Americans of this important outpost. Because there were various political and military reasons making Saudi Arabia unsuitable for the role as new regional power, the US found it necessary to have recourse to direct forms of rule. For this reason, the political and logistical prerequisites for a permanent American military presence in the Gulf region were already put in place under President Jimmy Carter.

The co-operation with Saddam’s regime that had been developed parallel to this ended abruptly with the incursion into Kuwait by Iraqi troops. The Second Gulf War was fought predominantly with the objective of fending off any challenge to the USA’s position of supremacy. There was still no new concept of regulatory policy in play here. Rather, American foreign policy followed a strategy of »double containment« that was intended to weaken and isolate both Iraq and Iran. The fact that democracy and human rights played no role in US policies on the Middle East at this time also had to do with the concern about the growing strength of Islamic powers. Indeed, from an American point of view, democratic processes in the region were even to be strictly prevented, as otherwise a takeover by »green« elements was to be expected in several countries.

In the case of Iraq, the USA had long banked on an internal changeover of power. When, in the wake of »September 11«, Saudi Arabia came under suspicion of maintaining close links to militant Islamism, the USA thought it could no longer afford to lose a third pawn on the chess board of the Gulf region. That was the reason for the temptation to occupy Iraq under flimsy pretexts in order to regain control of the region and thus secure control of strategically important aspects. The United States is interested primarily in the monopoly-like regulation of the global energy sector with the objective of expoiting this position both economically and to gain political power. On the one hand, low prices to the detriment of the producers are intended to maintain the latent over-production and make sure that the energy-hungry OECD world is fed at an economical rate. On the other, the special status of the USA allows it to make big energy consumers such as the EU, Japan, China and India even more dependent than before on American good-will in all future questions regarding international politics. This double strategy, which in the past was obscured by the bloc confrontation between the USA and the Soviet Union, forms a central element of American foreign policy.

The democratic mission

Since »September 11«, the Bush administration also sees »democracy« and the »liberal market economy« as central elements of an effective security policy. The development of »open societies« is given high priority, with clear reference to the 1918 programme of the American president Woodrow Wilson (»To make the world safe for democracy«). All regions that are not associated with the process of globalisation dominated by American economic interests represent, according to leading intellectuals in the USA, a clear security risk in view of their backwardness. In particular, they say, the Islamic-influenced Greater Middle East is suffering from a crisis of governability that is associated with the inability of its states to cope with »the challenges of modern times«.

The traditional image America has of itself is based on the fundamental assumption that a unique combination of economic power and moral strength enables the country to keep foes of peace and progress under control and to create a better world.

Indeed, it must be recognised that, historically, the politics of the United States, particularly with regard to colonialism, has differed considerably from that of the European powers. For a long time, it centred on the »acquisition of land« in the allegedly open North American region, something which also produced a »frontier« mentality. The USA was seen as the »most progressive« society on earth, one whose citizens – in contrast with the »natives«, who were classed among the flora and fauna – knew how to use the land properly. In the long term, the laws of »political gravity« were to lead other peoples towards the American system. The assertion that the expansion of the United States had »extended the area of liberty« was formulated and put into practice in many variations. However, this combination of political messianism and imperial expansion has cropped up historically in many different guises: sometimes liberal, sometimes fundamentalist. Even today, the openly aggressive belief in a mission tends to be the credo of a neo-conservative minority. But this minority is an influential group of people that is now determining the basic principles of American policies. For the neo-conservatives, war is an essential organising principle that not only secures American supremacy, but also gives the nations affected democracy and human rights. However, this means that a global imperial model is prevailing that is based entirely on the logic of permanent military intervention and denies the political and social dimensions of the conflicts. This automatism of war will fundamentally change the Western democracies.

 

Translated by Timothy Jones

 

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