Coercing Virtue (20 page)

The purpose and effect of the invocation of the ICJ’s jurisdiction (which did not exist) was to inflict a serious political and moral injury to the United States. That was true in America as well as abroad. International law scholarship, along with the rest of the American academic world, is politicized. One of the characteristics of the American academy is the hostility to America that flourishes there. For every professor who criticized the ICJ’s obviously illegitimate decision, another castigated the United States. No Nicaraguan scholar criticized the decision, which is one more example of how international law about the use of force harms only open, democratic nations and not dictatorships. As Professor Michael Reisman pointed out, the “international law-making process has itself undergone change and has subtly, but steadily, sought to change international law with regard to certain unilateral uses of force. While it has not totally succeeded, it has accomplished enough to have made expectations of who and how the law is made and what the law
is
less certain than in the past.”

This transformation is connected with the change that occurred in the nature of the UN General Assembly as many new nations were admitted. In the early days the assembly operated on the assumption that what was said
there was based on international law or at least evidence of it. The new entrants were generally have-not nations and they wanted an international law that implemented their desires. The result is, as Reisman says, the inversion of many established rules about the use of force.

Though there was no judgment by the ICJ, much the same thing occurred when the United States invaded Grenada. In 1979 that newly independent, small island nation had its government overthrown by a revolutionary party. Events followed the same pattern as had happened in Cuba and, subsequently, in Nicaragua. Large numbers of political prisoners were held and the new regime engaged in rapid and heavy militarization with the assistance of arms and advisors from the Soviet Union, Cuba, and other Communist bloc nations. Grenada’s neighbors, six Caribbean island nations, were alarmed, since Grenada’s military force exceeded their combined forces and seemed to have no possible purpose other than the support of subversion to overthrow their democratic governments. A coup, probably the work of even more hard-line Marxist-Leninists, resulted in chaos, with no one group in control. Rioting, looting, demonstrations, shootings, and a round-the-clock curfew, enforced by threats to shoot on sight, left the island without a stable government. The other six island nations expressed serious concern, as did the United States, for there were about one thousand Americans on the island, many of whom were medical students. These Americans, cut off from the outside world, dependent on the People’s Revolutionary Army for food and water, and confined to
their quarters on pain of death, were effectively hostages. The State Department tried, without success, to arrange their release and evacuation.

At the request of other concerned nations, the United States invaded Grenada. When the fighting was over, a CBS News poll found that 91 per cent of Grenadans were glad the U.S. troops had come. Within less than two months, the U.S. armed forces left the island, order had been restored, American and Grenadan lives had undoubtedly been saved, and plans were under way for free elections. One would have thought that, outside the Communist bloc, the American action would have been joyfully received.

Not long after the invasion, however, the UN General Assembly voted to condemn the action as a violation of international law. The majority was even larger than the one that condemned the Soviet invasion of Afghanistan, an invasion that had none of the justifications the U.S. action in Grenada had. The vote had been taken, moreover, without even allowing the nations of the Organization of Eastern Caribbean States or the United States to present their case. Yet once more many American international law professors responded according to their political views. Nine professors signed an article stating that the United States was “in egregious violation of international law” and that the lack of the “imprimatur” of the Organization of the American States would “raise serious doubts concerning the international legitimacy of any successor government.” That reaction was so incredible that it comes close to calling into question the
professors’ grip on reality. Apparently, a Communist dictatorship installed by violence was internationally legitimate, while a successor government chosen democratically by the people of Grenada was not.

There is nothing here that deserves to be called “law” in any sense. The
American Journal of International Law
ran separate symposia of the Grenadan invasion and American support of the Nicaraguan contras. The various experts took almost every position imaginable, from the assertion that the United States is a dangerous international outlaw to the contention that everything done exemplified devotion to the rule of law. The arguments in defense of the United States’s actions seemed to me far more persuasive than those condemning those actions, but I quickly realized that I was judging not on grounds that might be called legal but on political and moral considerations. I have no doubt that others, on both sides, did the same. The “law” itself seemed infinitely flexible and indeterminate.

Senator Daniel Patrick Moynihan, an international law enthusiast (he’s on record for saying, “International law
exists
. It is not an option. It is a fact”), has stated a contradiction that lies at the heart of international law and accounts for its indeterminacy:

But if the condition on which the United States agreed to the OAS Charter – that the members would be democracies – has changed, why does not
rebus sic stantibus
relieve us of the obligation to keep the rest of the agreement? It is one thing to contract with democracies and quite another to be bound when the parties become totalitarian or authoritarian. Moynihan’s argument, and his condemnation of America’s action in Grenada, lack coherence.

The crusade to lodge control of the employment of armed force in international bodies continues. As John Bolton, who has since become undersecretary of state for arms control and international security, put it:

Israel’s Aharon Barak claimed the right to judge the deployment of Israeli troops in wartime. Annan and Robinson have gone one better. They claim the right of foreign nations (and, apparently, international courts) to judge the tactical behavior of United States troops in wartime.

No court of the United States would entertain a suit challenging the legality of U.S. actions with respect to Nicaragua, Grenada, Panama, or Kosovo. Various radical
groups have tried to litigate American involvement in such operations, but were not successful. Our courts, under one legal rubric or another, essentially agree that there are inherently political disputes that are not fit for judicial resolution. As much could be said for all disputes about the use of force by one nation against another – but that is precisely the point about international law. The United States has not entrusted matters so gravely affecting its national interests, security, and foreign policy to American judges. Yet some will argue that the United States should entrust these issues to a court or a committee sitting on another continent, made up predominantly of jurists or members from foreign countries, and elected, often enough, by international bodies dominated on such concerns by nations hostile to the United States.

I once listened to a professor of international law defend the United States’s actions in Grenada. The argument seemed tortured and artificial, and the most important considerations were omitted. When he was done, I asked whether three factors that most Americans deemed relevant to the matter counted in international law. First, the Grenadan government consisted of a minority that had seized control by violence and maintained it by terror. Second, it was a Marxist-Leninist regime and represented a further advance in this hemisphere of a power that threatened freedom and democracy throughout the world. Third, the people of Grenada were ecstatic at being relieved of tyranny and the ever present threat of violence. The expert replied, somewhat sadly, that these considerations had no weight in international law.

A moment’s reflection makes it clear that, in the real world, they could not. In order to be international, rules about the use of force between nations must be acceptable to regimes that operate on different – often contradictory – moral premises. The rules themselves must not express a preference for freedom over tyranny or for elections over domestic violence as the means of coming to power. This moral equivalence is embodied in international charters. The charters must be neutral and the easiest neutral principle is “No force.” The fact that this principle will be ignored by those who see international law as just one more instrument of foreign policy does not affect the matter.

But even the principle of neutrality is now being altered to the disadvantage of the United States and other democracies. The UN General Assembly has begun to redefine what it means by “the unlawful use of force”: under the new system, those it regards as struggling for “freedom and independence” may legally attack their own government, and another nation may legally provide bases from which the attacks are launched – but it is illegal for the targeted state itself to attack those bases. This change operates primarily to the benefit of radical left or Muslim insurgencies supported by nations of the same outlook, and to the detriment of the United States and other democracies when they aid the nation under attack.

It might be said that we must accept moral equivalence in international law in order to have rules that are acceptable to hostile nations, in the hope that it will deter them from the use of armed force. Yet surely this argument
about the power relations of nations is the same as preaching the rule of law to the Medellin cartel, in the expectation that, one day, the drug lords will be worn down by the rhetoric of idealism and submit to the law of Colombia. Even if we could hope that the aspiration of international law might eventually lessen the amount of aggression in the world, there is the present reality that it does not, and that it imposes costs disproportionately on liberal, democratic nations.

The major cost is that, by eliminating morality from its calculus, international law actually makes moral action appear immoral. It can hardly be doubted that, in the view of America and many Western democracies, it would be a moral act to help a people overthrow a dictatorship that had replaced a democratic government by force and to restore democracy and freedom to such people. Yet when our leaders act for such moral reasons, they are forced into contrived legal explanations. The implausibility of those explanations reverses the moral stance of the parties.

International law serves, both internationally and domestically, as a basis for a rhetoric of recrimination directed at the United States and other free nations. Those who disapprove of a government’s actions on the merits, but who fear they may prove popular, can transform the dispute from one about substance to one about legality. The government can be painted as a lawbreaker and perhaps drawn into a legalistic defense of its actions. The effect is to raise doubts and lower democratic morale. Dictatorships have no such problem.

As currently defined, then, international law about the
use of force is not even a piety; it is a net loss for Western democracies. Senator Moynihan, speaking of international relations in Woodrow Wilson’s time, said, approvingly, that “the idea of law persisted, even when it did not prevail.” That is precisely the problem. Since international law does not prevail, the persistence of the idea that it exists can be pernicious. There can be no authentic rule of law among nations until they have a common political morality or are under a common sovereignty. A glance at the real world suggests we have a while to wait.

Since the action in Grenada and Nicaragua, the supposed international law on the use of armed force by one nation against another has become even more inconsistent and useless for purposes other than propaganda abroad and partisan wrangling at home. When the United States invaded Panama (“Operation Just Cause”), the Bush administration offered several legal justifications for the operation: defense of U.S. nationals, defense of the canal under the Canal Treaty, the need to apprehend General Manuel Noriega (who was charged with international drug dealing), and the need to support the democratically elected government. The international law journals tended to be critical of the invasion as a violation of law. Professor Louis Henkin thought it a “gross violation,” while Professor Michael Reisman supported violations of national sovereignty where they were necessary to support popular sovereignty. Columnist Mona Charen contended that the United States should have argued the moral rather than the legal justification for the invasion, a position that
accords with my own. Henkin himself, while stressing the crucial importance of international law, suggests how misleading it is to call that body of conflicting principles “law”: