[Contesting] Empire's Law and Human Rights As "Swords of Empire" Print E-mail

First Session / The Role of International Law and Institutions
(Moderator: T. Tarhanl ) Turkey 24 June 2005

[Contesting] Empire’s Law and Human Rights As ‘Swords of Empire’

by Amy Bartholomew

1. The Bush Doctrine and ‘Empire’s Law’
The horror that is the United States’ illegal war of aggression against Iraq – the act that the Nuremberg Tribunal which was largely a creature of the United States called the ‘supreme international crime’ -- is one that will make sure that the US ‘live[s] in infamy.’ This was recognised, not long ago, by Arthur Schlesinger Jr., a former advisor to the American Kennedy Administration. Schlesinger was also important for calling the Bush Doctrine that underpins the attack on Iraq ‘a fatal change in the foreign policy of the United States’.2

Why is this considered a fatal course of events? I think there are four major reasons that stretch beyond the immediate horror, the literally ‘fatal’ consequences that have been imposed on Iraqis by this illegal war: * First: the legitimacy of war as ‘an instrument of policy’ was renounced shortly after the First World War,3 a prohibition that was entrenched with the signing of the United Nations’ Charter. And, yet, the Bush Doctrine explicitly reinstates and defends waging war as an instrument of American policy. * Second: The Bush Doctrine articulates the principle of ‘preventive’ war – a principle that violates the heart of the UN Charter and international law which requires armed attack, the reasonable anticipation of immediate armed attack4 or the decision of the Security Council that a threat to the peace is sufficiently grave as to require action to legitimize and render legal a military response. * Third: The US defends its right to decide upon and wage war unilaterally, again, explicitly violating both the letter and the spirit of the UN Charter.

But, even more important than these three immanent threats that are posed by the Bush Doctrine is the fact the Bush Administration has not just set out a policy to break the law, to flout it -- it does not as some critics have maintained simply attempt to act ‘lawlessly’5 which, of course, it surely does -- but it also sets out to define and to state the law – to constitute it -- unilaterally – monologically, as we might say. This fourth dimension of the Bush Doctrine poses a ‘revolutionary’ challenge to the project of international law:6 it is an ‘international constitutional moment’ in which the American Empire attempts to establish a new world order based on ‘absolute security’ for itself.7 It is important to grasp that it is not mere lawlessness, then, that lies at the core of the Bush Doctrine, but something much more threatening. It is an attempt to establish an order ‘whose law is not yet [entirely] visible.’8 The Bush Doctrine means that the ‘law’ that will now rule the globe is ‘Empire’s Law’ – that is, a form of unilaterally constituted and imposed, illegitimate, unaccountable rule by a global power that attempts to perform the role of a global sovereign declaring itself to be ‘the exception’.9 With regard to aggressive war – to war as an instrument of policy – the threat is that the US is attempting to establish a new norm of preventive war which would be available, on its view, only to itself but from the point of view of legality, would be a norm recognised as available to all.10 Either of these results is obviously ripe with draconian implications. With regard to legality, the threat is that the US treats law as merely a ‘derivative of the will of the sovereign’11 – that is, itself, the global sovereign.

2. Who defined and Who supports the Bush Doctrine?

The Bush Doctrine goes back well before the US National Security Strategy of 2002, even though that is typically taken to be its first official articulation. Its chief architects were those associated with the Project for a New American Century who, long before September 11, 2001, made the case for American Empire stalking the earth in the quest for a Pax Americana and an ‘empire’s law’ – a Lex Americana­to further that aim.

This is bad enough. But, what makes all of this even more troubling, is that it is not only the neoconservative hard-liners in and around the Bush Administration who have pursued illegal aggressive war and run roughshod over international legality by justifying its evasions, exceptions, rejections and instrumentalisations in this way. The Bush Administration was supported and encouraged by forces whom I will call the ‘human rights hawks’ who, drawing on the previous decade’s innovations in legitimising (if not legalising) humanitarian intervention and ‘humanitarian wars’, aimed, at least ostensibly, at the protection of peoples from massive abuses of human rights, supported this war on human rights as well as security grounds. This is as true of Tony Blair as it is of American liberal public intellectuals, like Michael Ignatieff, and the majority of the Democrats in the American Congress.

The human rights hawks gave sustenance early on to the aims of American Empire as they articulated the case for a ‘humanitarian war’ against Iraq, a theme that has now become more deeply imbricated within the Bush Administration itself as it fights to ‘spread democracy and freedom across the world’ and ‘end tyranny’ through continuing war and occupation (both de jure and de facto). Espousing their humanitarian concern and their cosmopolitan moral solidarity, the human rights hawks gave crucial support to the project both of undermining legitimate legality as a medium of regulation12 – international and otherwise – and of turning it into ‘Empire’s Law,’ a form of rule that is deeply at odds with the post World War II project of globalising its obverse, that is, ‘law’s empire’.

While the earlier post WW II project of extending ‘law’s empire’ was responsible for developing regimes of human rights and international law and foreshadowing (albeit highly imperfectly) a future order of democratic cosmopolitan law, ‘Empire’s Law’ seeks precisely to derail that project and to do so unilaterally, brutally and by the projection of military as well as economic and political power across the globe. Thus is a new phase in the American imperial project borne.

It is, therefore, crucial to address the fact that the responsibility for the terrible destruction of Iraq and the brutal killing, torture, and insecurity of the Iraqi people is shared by these hawkish liberals and neo-conservatives alike, for the former – the human rights hawks – gave the Iraq war the ideological and moralistic justification that was required to gain, and especially, to sustain, support for it by the citizens of American Empire, particularly as it became glaringly apparent that WMD were a conjured fantasy. Viewed as a war of liberation, the decimation of Iraq, the terrible disregard and squandering of life, culture and resources, seemed to many in the liberal camp, at least for a while, to be ‘worth the price’. And, the fact that it would be an American Empire that would wage the war was not cause for concern for them. Michael Ignatieff, for example, one of the organic intellectuals of the war, famously maintained (and I quote) ‘the moral evaluation of Empire gets complicated when one of its benefits might be freedom of the oppressed’. For Ignatieff, the ‘disagreeable reality’ was not just that ‘war may be the only remedy’ for cases like Iraq13 but that the only power capable of addressing this reality was the American Empire, with its ‘general world duty.’14 According to Ignatieff who spoke for the liberal hawks: ‘The case for Empire is that it has become, in a place like Iraq, the last hope for democracy and stability alike.’15

How far liberal human rights hawks have strayed from Arthur Schlesinger Jr. who, it will be remembered, recognised in the Bush Doctrine ‘a fatal change in the foreign policy of the United States’ likening it to Japanese imperialism prior to the end of World War II such that now it is the US that will ‘live in infamy’!

But it must not be thought that it is only liberals or neo-conservatives who could possibly defend such a stance, who could possibly treat human rights as ‘swords of empire.’16 Consider for a moment the argument made by the British Marxist Political Theorist, Norman Geras. Geras has chastised his progressive colleagues for failing to address the needs of strangers which, he maintains, in the case of Iraq required military ‘regime change’ in order to meet the demands of cosmopolitan moral solidarity.17 He argued, in addition, that there is a ‘universal right to aid’ and a ‘universal obligation’ to meet it while insisting that those who opposed the war in terms of anti-imperialism, anti-Americanism, and anti-capitalism have failed to appreciate the ‘manifold practices of human evil’ in places like Saddam’s Iraq.18 He concluded with a eulogy for the anti-war Left: ‘So much for solidarity with the victims of oppression, for commitment to democratic values and basic human rights.’19

But even if we accept the importance of showing cosmopolitan moral solidarity and confronting ‘manifold practices of human evil,’ as I think we must, one does not have to belabour the obvious that with greater hindsight than these analyses could provide there is no plausible argument to be generated that this was, in fact, a humanitarian war. It is crystal clear that the war waged against Iraq was never a ‘humanitarian war’ and neither has the occupation been a humanitarian or transformative one. But, it is even more important to insist that long before the war was launched against Iraq it was clear that neither its aims nor its most likely consequences were to be ‘humanitarian.’ Both the officially declared but illegal war and the occupation have been lightyears away from the sort of liberal policing, rather than military, model that would have to animate any truly humanitarian intervention where, for example, the intervenors would place civilian safety at least on par with their own and refuse to use indiscriminate weapons including those that will surely decimate the environmental, genetic and health future of Iraq (and likely its neighbors) for centuries, if not millennia, to come. All of this death, pain and destruction unleashed ostensibly in the name of extending freedom, human rights and liberation to the Iraqi people, is enough thoroughly to discredit claims of humanitarianism.

The American Empire’s disregard for humanitarian concerns was as apparent then, at the outset, as was its disregard for international law, international institutions, the safety, security and human rights of the Iraqi people and global public opinion.20 Rather, from Abu Ghraib to Kandahar, Baghdad to Guantanamo, the US is asserting the sharp edge of Empire, governing so-called ‘problem states’21 through military violence and what Amnesty International has called an ‘archipelago of prisons’ around the world22 which, as critical commentators have emphasised, have more in common with concentration camps than they do with prisons, all the while the US proclaims its moral and political superiority – and its 200 year old constitution -- as a justification for doing so.

Human rights justifications are being used to install by these very means – ‘by fire and sword’ as Jurgen Habermas has put it.23 And this, of course, is a very particular conception of the rule of law, the rule of Empire’s Law – a rule that has virtually nothing to do with democracy or with human rights -- but which is aimed at the expansion by military domination of a neoliberal conception of good governance24 based upon market capitalism. This is combined with the imposition of a political structure via a constitution that, far from extending political democracy to Iraq, seeks to extend ‘Empire’s Law’ over it, treating it as mere terrain to be conquered, to be enveloped within the imperium’s thorny embrace, a ‘problem state’ to be ‘pacified’ while being ‘freed’ only insofar as that freedom is in line with the values and interests of the Empire and ‘democracy’ is really the name for another client state.25

It is clear, therefore, that it was an egregiously irresponsible act for the ‘human rights hawks’ to support the war against Iraq. In supporting virtually unilateral war the human rights hawks, alongside their neo-conservative counterparts performatively justified future forms of unilateral war and rallied against global justice. The important consequence is: Those who gave intellectual and ideological support should be held morally responsible for the devastation of human rights and global justice, the destruction of Iraq and the wanton murder of Iraqis as well as for the ‘moralisation of politics’ that has accompanied this war such that ‘Empire’s Law’ seeks to trump ‘law’s empire’ in an Alice in Wonderland sort of inversion of legality.26 And, those ostensibly humanitarian warriors who had the political power to decide whether or not to breach international law both in terms of committing the crime of aggressive war and in terms of committing grave violations of international humanitarian law – Tony Blair for one – must be held legally as well as politically accountable alongside those at the pinnacle of the American Empire who have aimed at the creation of a new world order through criminally culpable behaviour.

3. Empire’s Law or law’s Empire?
We would do well, under these conditions of the Bush Doctrine, in general, and the aggressive war waged against Iraq, in particular, to remember the words of the American Chief Prosecutor at the Nuremberg Tribunal. He (Associate US Supreme Court Justice Robert Jackson) said that the crime of aggression cannot be justified by any political or economic conditions. He went on to say that:

‘If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.’27

This statement by the Chief Prosecutor at the Nuremberg Tribunal expresses the most elementary principle of legal justice: that legitimate law must be universalistic, displaying equal recognition, equal applicability and impartiality. In order to be legitimate, law must be judged to be equally good for all. And, in the contemporary context this judgment must issue from the perspective of each. But, the Bush Doctrine violates all of these principles of legality. It has, in fact, definitively raised the question of whether international law is to remain a medium for the regulation of problems between states.28 Is the global spread of ‘law’s empire’ in the post WW II era now to be definitively replaced by ‘Empire’s Law’ by the only power capable of constituting such a wrongheaded global politics – the American Empire? Will we accept the combined import of the Bush Doctrine and the war against Iraq? Will we accept that the American imperium holds the right of empire to rule, to run roughshod over its self-declared enemies, to act as a self-declared ‘trustee’ of the interests of the world and to undermine international legality?29

No. We, the people of the world, must demand that the perpetrators of the aggressive illegal, immoral and irrational war against and occupation of Iraq who, at the same time, seek to undermine ‘law’s empire’ in favour of the nonreciprocal right of American Empire be held responsible morally, politically and legally for their aggressive war, for the war crimes they have committed, and for seeking to undermine the entire Post World War II order of international legality.

Jean-Paul Sartre perceptively recognised the importance of the norms of international legality when, in his Inaugural Statement to the Bertrand Russell War Crimes Tribunal convened during the Vietnam War, he argued both that Nuremberg represented victor’s justice and that once the principle of legality was inscribed, due to its ‘implicit universality’ it would become difficult for those powers to avoid its reach. 30 The Nuremberg Tribunal created an ‘ambiguous reality’, he argued, in which an ‘embryo of a tradition’, a precedent, was created that, while it was never extended after the Tribunal to the victors, nevertheless ‘created a real gap in international affairs’. That gap lay in the fact that no institution had been created to affirm the universality that lies at the principled heart of the Nuremberg Tribunal. But, that gap ‘must be filled’ he said. Sartre went on to argue that, where no official institution would do so, it was up to the people. And, most interestingly, he maintained that that Tribunal should be aimed at making, ‘everybody understand the necessity for international jurisdiction – which it has neither the means nor the ambition to replace and the essence of which would be to resuscitate the jus contra bellum [ie. the rule against war], still born at Nuremberg, and to substitute legal, ethical laws for the law of the jungle.’31

Sartre’s perspective should inform our own. The struggle for legality and for legal responsibility must be viewed as one of our weapons against the Bush Administration, against ‘Empire’s Law’ and against the ‘moralisation of global politics’ all of which lay behind the violations that the US war against Iraq perpetrates against humanity, in general, and against Iraq, in particular.

But, we must now recognise the constitutively unequal structure of relations implicit in American Empire. If that is the case, if what we confront is an Empire, we must ask the question: how can we hope to bring such an empire to account? Not much is clear about the answer to this question except for the overly general answer that we will require contestatory politics that are anti-empire in orientation, not just the politics of pursuing a return to legality, and certainly not just anti-war politics. Our politics must be oriented toward contesting the US’s imperial position – whether it issues from Bush Administration, the Project for a New American Century, the human rights hawks or some future ‘benevolent’ US administration that may be expected to promote imperial versions of legality ‘led’ by the US. Our project must be to support a critical cosmopolitanism that is aimed at contesting ‘the imperial power’ in part, but only in part, through legal means. And this politics must develop a very sober analysis of the prospects of the project of legalisation even while it demands it.32 It must be a politics that publicises the crimes of an ‘empire that is no longer concealed’33 as it builds the case against it.

- We must demand that the US pull out of Iraq now, respect the Iraqis’ right to self-determination and pay reparations.
- We must demand that the US commit itself to international law and institutions.
- We must demand that the perpetrators of aggressive war and war crimes be put on trial.
- And, we demand that those who have supported this war assume political responsibility, along with their leaders, for the devastation they have wrought for humankind.
- Finally, we must reject that Empire’s self-proclaimed right to rule and we must and will express that rejection through manifold acts of resistance.

1 Draft comments. The final version of this talk will appear as ‘Empire’s Law and the Contradictory Politics of Human Rights’ in Amy Bartholomew (ed.), Empire’s Law: The American Imperial Project and The ‘War to Remake the World (London: Pluto, 2006).
2 Arthur Schlesinger Jr., ‘Eyeless in Iraq.’ New York Review of Books 50 (23 October 2003) http://www.nybooks.com/articles/article-preview?article_id=16677. Perhaps the most succinct discussion of the Bush Doctrine has been provided by Jonathon Schell whose description of it is worth quoting at length: ‘Its aim, which many have properly called imperial, is to establish lasting American hegemony over the entire globe, and its ultimate means is to overthrow regimes of which the United States disapproves, pre-emptively if necessary. The Bush Doctrine indeed represents more than a revolution in American policy; if successful, it would amount to an overturn of the existing international order. In the new, imperial order, the United States would be first among nations, and force would be first among its means of domination. Other, weaker nations would be invited to take their place in shifting coalitions to support goals of America’s choosing. The United States would be so strong, the President has suggested, that other countries would simply drop out of the business of military competition, ‘thereby making the destabilizing arms races of other eras pointless, and limiting rivalries to trade and other pursuits of peace.’ Much as in the early modern period, when nation-states were being born, absolutist kings, the masters of overwhelming military force within their countries, in effect said, ‘There is now a new thing called a nation; a nation must be orderly; we kings, we sovereigns, will assert a monopoly over the use of force, and thus supply that order,’ so now the United States seemed to be saying, ‘here now is a thing called globalization; the global sphere must be orderly; we, the sole superpower, will monopolize force throughout the globe, and thus supply international order.’ ‘The Empire Backfires,’ Znet www.zmag.org/content/showarticle.cfm?SectionID=11&ItemID=5129 accessed 11March 2004.
3 In the Kellogg-Briand Pact of 1928, reiterated at the Nuremberg Tribunal.
4 As stated in the Caroline case pre-emptive war requires ‘a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation.’ See Nicholas S.J. Davies, ‘The Crime of War: From Nuremberg to Fallujah,’ Online Journal (31 December 2004). www.onlinejournal.com At the United Nations, Colin Powell said that the United States had ‘the sovereign right to take military action’. See Noam Chomsky, ‘Preventive War The Supreme Crime,’ Znet 11 August 2003. Available on line at: http://archives.econ.utah.edu/archives/marxism/2003w32/msg00055.htm
5 As is at least one interpretation of Giorgio Agamben’s claims when he says, for example, that Guantanamo is a ‘camp’ not a prison with the juridical/political significance that the camp is outside the law, a ‘black hole’, or an ‘enclave beyond any juridical sphere’ (Cauter 2) or a ‘normless exception’ (Koskenniemi 3). But, when this is expanded to maintain that the US is acting beyond the law it risks, first, obscuring the instrumentalisatioin of law (as can be seen in the way the US labels ‘problem states’ as those that violate law and also in the ‘torture memos’ produced by the US Justice Department which use and ‘interpret’ the law, parse and squeeze it, to produce their desired result); second, underestimating the countercurrents that have been and are attempting to resist that move (such as the US Supreme Court in the Guantanamo cases and progressive lawyers like those at the Center for Constitutional Rights that have been central in those cases and other attempts to constrain the administration; and third (and what I really want to emphasize) obscuring the ways in which it is seeking to reconstitute law. See Lieven de Cauter, ‘The Bloody Mystifications of the New World Order,’ in Ready for the New Imperial World Order? The BRussells Tribunal, 14-17 April 2004, www.brusselstribunal.org; Martti Koskenniemi, ‘International Law as Political Theology: How to Read Nomos der Erde? Constellations 11, (2004): 492-511, 493. Also see Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford, Ca: Stanford University Press, 1998).
6 Habermas, ‘Interpreting the Fall of a Monument,’ forthcoming in Bartholomew (ed.), Empire’s Law.
7 Ulrich K. Preuss, ‘The Iraq War: Critical Reflections from “Old Europe”,’ forthcoming in Bartholomew (ed.), Empire’s Law.
8 Ibid.
9 Of course there is a long and productive literature on ‘the exception’ starting with Schmitt. For Schmitt ‘sovereign power not only upholds the law, but also, and above all else maintains the right to suspend the law and to declare a state of exception.’ Lieven de Cauter, ‘The Bloody Mystifications of the New World Order.’
10 Scholars like Nehal Bhuta worry that this new norm may become legal itself by virtue of customary international law. See Bhuta, ‘A Global State of Exception? The United States and World Order,’ Constellations 10, no. 3 (2003): 371-91. Also see the normally very staid American Journal of International Law where, in the introduction to its ‘Agora: Future Implications of the Iraq Conflict’ the editors note that: ‘The military action against Iraq in spring 2003 is one of the few events of the UN Charter period holding the potential for fundamental transformation, or possibly even destruction of the system of law governing the use of force that had evolved during the twentieth century.’ Lori Fisler Damrosch and Bernard H. Oxman, ‘Agora: Future Implication of the Iraq Conflict: Editors’ Introduction,’ American Journal of International Law, 97 (2004) 553.
11 Bhuta, ‘A Global State of Exception?’380.
12 As Habermas has put it. See his unpublished paper ‘Dispute on the Past and Future of International Law: Transition from a National to a Postnational Constellation.’ World Congress of Philosophy. Istanbul, Turkey, 2003.
13 Michael Ignatieff, “The Burden,” The New York Times Magazine (5 January 2003): 22, at 26.
14 Teddy Roosevelt quoted in Leo Panitch and Sam Gindin, ‘Theorising American Empire,’ in Bartholomew (ed.), Empire’s Law.
15 Ignatieff, ‘The Burden,’ 54.
16 For the original formulation of ‘human rights as swords of empire,’ see Amy Bartholomew and Jennifer Breakspear, ‘Human Rights as Swords of Empire,’ in Leo Panitch and Colin Leys (eds.), The New Imperial Challenge, Socialist Register 2004 (London: Merlin Press, 2003), 125-145.
17 Norman Geras, “A Moral Failure,” Wall Street Journal Online Opinion Journal, 4 August 2003. http://www.opinionjournal.com/forms/printThis.html?id+110003834. Accessed 22 May 2004. Also see his normblog http://normblog.typepad.com/normblog/ . This analysis is rooted in his analysis of, and fierce and moving opposition to, the ‘contract of mutual indifference’, that ‘brutal moral reality’ that describes the ‘place of human suffering in an unnoticing cosmos’ in The Contract of Mutual Indifference: Political Philosophy after the Holocaust. (London: Verso, 1998).
18 Norman Geras, ‘The Reductions of the Left,’ Dissent Magazine, (Winter 2005), www.dissentmagazine.org/menutest/articles/wi05/geras.htm accessed 18 March 2005.
19 Geras, “A Moral Failure.” Similarly, in ‘The Reductions of the Left,’ Geras maintains that one of the reasons the Left didn’t support the war is due to a ‘lack of any genuine grasp of, or feeling for, the meaning of extreme forms of evil and oppression.’ In addressing Geras I don’t even address the palpable lack of solidarity with the Iraqi victims of the war and occupation evidenced by Ignatieff and Geras especially with Ignatieff calling the resistance ‘despicable’ just days before even the mainstream media began reporting on the obvious – that ‘the’ resistance is not a monolithic block but is, instead, composed of Iraqi nationalists opposed to occupation as well as Saddamists, Shiite religious figures and a small proportion of ‘foreign fighters’. Find citation. On Geras, also see Maurice Chittenden, “Stormin’ Marxist is Toast of the Neocons,” Sunday Times-Britain 6 February 2005. Chittenden reports that Geras began his normblog because “’I was fed up with the prevailing left and liberal consensus that the war in Iraq was wrong.’”
20 See Ken Roth (for Human Rights Watch), ‘War in Iraq: Not a Humanitarian Intervention,” (2004) www.electronicIraq.net/news/printer1354.shtml Accessed 9 June 2004. Human Rights Watch refused the overly simple logic that ‘something must be done’ and the far too quick leap of logic that that ‘something’ needed to be or was justified as unilaterally decided upon, illegal war implied by Geras’s sort of humanitarianism which argues that there is a ‘universal duty’ to respond but avoids the question of who and under what conditions this should occur as well as Ignatieff’s more straight-forward support of American Empire as the agency to be depended on.
21 The term is used in, United States of America, ‘The National Defense Strategy of the United States of America,’ 1 March 2005, issued by the Secretary of Defense, Donald H. Rumsfeld. Available on line at: http://www.globalsecurity.org/military/library/policy/dod/nds-usa_mar2005.htm Accessed 13 May 2005.
22 Amnesty International USA Executive Director, William Schultz, ‘Guantanamo Bay: A "Gulag Of Our Times" or a "Model Facility"’? A Debate on the U.S. Prison & Amnesty International’ Democracy Now, 1 June 2005 hosted by Amy Goodman. Transcript available at: http://www.democracynow.org/article.pl?sid=05/06/01/1441204
23 Jurgen Habermas, original translation of ‘Interpreting the Fall of a Monument,’ as ‘What Does the Felling of the Monument Mean?’ http://slash.autonomedia.org/analysis/03/05/12/1342259.shtm. This is a translation of ‘Was bedeutet der Denkmalsturz?’ in Frankfurter Allgemeine Zeitung, 17 April 2003, p. 33.
24 See Trevor Purvis, ‘Looking for Life Signs in an International Rule of Law,’ in Bartholomew (ed.), Empire’s Law. Also see Naomi Klein, ‘Baghdad Year Zero,’ www.informationclearinghouse.info/article6930.html Klein suggests that: ‘Iraq was to the neocons what Afghanistan was to the Taliban: the one place on Earth where they could force everyone to live by the most literal, unyielding interpretation of their sacred texts.’
25 See Andrew Arato, ‘Empire’s Democracy, Ours and Theirs’ in Bartholomew (ed.), Empire’s Law.
26 We should not accept, therefore, the position that Ignatieff has taken, for example, when he says in November 2004 that ‘The old questions about the war in Iraq – Was it legal? Was it necessary? Was it done as a last resort? – now seem beside the point.’ Ignatieff, ‘The Terrorist as Auteur,’ The New York Times Magazine, 14 November 2004, 50, at 52.
27 Quoted in Marjorie Cohen, ‘ Aggressive War: Supreme International Crime’, Truthout 9 November 2004. www.truthout.org/docs_04
28 See Habermas, ‘Dispute on the Past and Future of International Law.’
29 On the idea of ‘trustee’ see Habermas, ‘Interpreting the Fall of a Monument’.
30 Jean Paul Sartre, ‘Inaugural Statement,’ Bertrand Russell Vietnam War Crimes Tribunal, available at: http://web.archive.org/web/20041025164511/www.911review.org/Wget/www.homeusers
31 Ibid.
32 For this sort of orientation one can turn to Hannah Arendt. See Robert Fine, ‘Crimes Against Humanity: Hannah Arendt and the Nuremberg Debates,’ European Journal of Social Theory, 3 (3): 293-311. At 306, Fine says, of Arendt, ‘Arendt leaves us with a sense of extreme equivocation: a vision of a new, cosmopolitan order as beautiful as it is necessary, but one beset by lost opportunities, tarnished by competition between national memories, degraded by ideological servitude to particular powers and corralled into a moral dualism of good and evil which robs debate of political profundity.’ She avoids the illusion that cosmopolitan law ‘if only it could be compelled, will provide the key to perpetual peace and universal freedom.’ And so must we. Fine goes on (at 307) to articulate the position that I think we need to adopt: ‘Cosmopolitan law, like all law, remains a form of coercion; it cannot jump out of political life or political power, it presupposes a certain exercise of power. In relation to it, the great powers have a cautious and equivocal attitude. For many years they largely ignored it. Now that they are once again using it, they seek to put it into the service of their own interests, to restrict its sphere of operation, to forestall its capacity for independent initiative, to appropriate its means of enforcement, to prevent it from interfering with the political requirements of peace and security. This is not a reason to dismiss cosmopolitan law; but it is a reason to take further the rugged, tested, critical cosmopolitanism that Arendt did so much to initiate.’ Also see Pheng Cheah, ‘Posi(ion)ing Human Rights in the Current Global Conjuncture,’ Public Culture 9 (1997) :233-266, on the idea of ‘contaminated’ human rights.
33 On ‘unconcealed’ informal empire, see Leo Panitch and Sam Gindin, ‘Theorising American Empire.’
Professor in the Department of Law, Carleton University, Ottawa, Canada. She is a contributor to and the editor of, Empire's Law and has written on the Iraq war, international law and the 'human rights hawks' in The New Imperial Challenge: The Socialist Register 2004 (Leo Panitch and Colin Leys eds.). She has written widely on legal and political theory, particularly with regard to human rights. She was a witness at the BRussells Tribunal, is currently on the Advisory Committee to that Tribunal and is on the international advisory board of the conference "International Humanitarian Law and Impunity of Powerful States: The Case of the United States" to be held in Paris September 2005.