Why Does International Law Even Matter?

My general position on laws is that I don’t care about them very much. Too often, there is a focus on the question of whether an act is “illegal” instead of whether it is justified. If the law requires me to commit some horrible and harmful act, I shouldn’t obey the law, and if an atrocity technically isn’t illegal, that has no bearing on whether it’s atrocious. I recently read a book about the Vietnam War which spent considerable time arguing that U.S. tactics like intentionally starving and bombing civilian populations did not constitute war crimes because they did not technically violate the Geneva Conventions. Instinctively, my first reaction was to go “That’s absurd, of course they violate…” but one needs to avoid getting bogged down in the legality debate, because the more important point is that it doesn’t matter. Attacks on civilian populations revolt the conscience regardless of whether or not existing legal structures are adequate to deal with the problem.

The joint U.S./U.K./French strikes on Syria were clearly illegal under international law. There is not much serious debate about this. As former Bush administration official Jack Goldsmith and Yale international law professor Oona Hathaway wrote, a country’s use of chemical weapons against its citizens does not allow other countries to engage in retaliatory bombing. The Chemical Weapons Convention contains a set of enforcement procedures, and they do not include “the United States deploying missiles against any country it deems to have violated the law. The UN charter also does not allow unilateral “humanitarian interventions”; the international community has to approve intervention, which it didn’t do here.

But then: how much does this matter? Objections to the legality of what Trump/May/Macron did can seem like a “procedural” criticism rather than a substantive one, and procedural criticisms don’t have too much force. Certainly, arguments that Trump’s order violated domestic U.S. law have mostly seemed opportunistic: Democrats are furious at Trump for acting without Congressional approval, but they never seemed to care much about Obama taking unilateral action without Congressional authority. Criticisms that an executive has acted without authority are often only made when people dislike the underlying action or the particular executive taking it. When we like the action, and the person in charge, we don’t usually care much about procedure. That’s for an understandable reason: given the choice between sound procedure and bad results and bad procedure with good results, it is very hard to argue that we should make the world worse simply to preserve a process whose only purpose to begin with was to produce good results. The Iraq War was authorized by Congress, and I don’t feel much different about actions taken by a Republican executive branch just because I know they have also been approved by a Republican legislative branch. Since I wouldn’t defer much to the rule of law if the laws violated my principles, it’s hard for me to grandstand about violations of the law when the law does happen to coincide with my principles.

Are international law arguments against Trump similarly secondary? Should we be focusing on whether the strike was wrong rather than whether it was within the scope of the UN charter? Defenders of the strikes called them “illegal but legitimate,” an argument that has also been used to exonerate Israel for clear violations of international law. This leaves us caught between two opposing notions: (1) illegal but legitimate is a reasonable concept, since it’s the foundation of the civil disobedience tradition from Thoreau to MLK but (2) if “illegal but legitimate” becomes an acceptable standard in governing the conduct of nations, we might as well give up on international law altogether, because every country will just violate the law at will and invoke its subjective conception of “legitimacy,” which inevitably always means “the things I want to do” since no country ever thinks its own conduct is illegitimate.

One reason I think violations of international law do need to be taken seriously is that international law is very recent and very fragile. It is actually less like “law” than a collective pact, one that is often difficult to enforce and which depends on the good-faith participation of the various parties. It is a bit like engineering cooperation in a prisoner’s dilemma. It’s very difficult, because it requires every party to limit their concern for their own self-interest in order to maximize the collective good. And if one of them betrays the others, the whole tentative cooperative system instantly collapses.

In 21st century international relations, this could mean utter catastrophe. The great powers have to get along, because their mutual possession of nuclear arms means that the stakes of conflict are incalculably high. A functional cooperative pact among the nations, that holds each of them to a set of humane principles, is essential. People make fun of the United Nations and its impotence, but everyone who cares about the future of the human race should be invested in curing that impotence and making sure UN procedures do mean something. Here, procedure is substance to a certain degree, because when the world adopts a process that achieves consensus, there is peace, and when it doesn’t, there isn’t, regardless of the substantive question being debated.

That’s why I think it’s actually incredibly dangerous and irresponsible for the United States (and now France and the UK) to treat international law as a meaningless set of guidelines that can be violated at will. If they don’t feel bound by it, why should any other country? The brazenness with which, for example, Israel has spat upon the international community’s processes endangers all of us, because it slowly erodes the weak bonds that keep the world from collapsing into war.

That’s a huge difference with ordinary civil disobedience: Martin Luther King’s actions posed no threat to the country’s survival. The laws he violated had a very stable and brutal enforcement system, and his disobedience served to improve them rather than undermine them. The United States’ refusal to play by the rules set by the international community, on the other hand, seriously threatens to create a world in which nations follow no rules at all. Even high-stakes domestic “rule of law” disputes pale in significance here: perhaps Obama’s implementation of DACA was unconstitutional, and perhaps that set a precedent for expanded executive power that would come back to bite the left under Trump. But I don’t care very much, because it helped a bunch of kids, and it didn’t “erode the constitutional order” in any way that I find too terribly troubling. On the other hand, Obama’s expansion of presidential war powers does seem to me somewhat troubling, because the more unchecked military power presidents have, the more authoritarian the executive branch can potentially be. How much I care about “rule of law” questions depends on what the stakes are in undermining the rule of law. If they’re not particularly high, then I’m not going to fetishize procedure and the Constitution. But if the law does seem like it’s serving a very important function in holding together institutions and preventing anarchy (the bad kind rather than the good kind), then violations of law should be taken very seriously. (This is a major indictment of Democrats who did not hold President Obama accountable for the more serious and threatening expansions of executive power.)

International law also has the advantage of being, generally speaking, pretty good substantively. The limits it imposes on nations, and the processes it creates for resolving disputes among them, are sensible. That’s another difference between it and its domestic equivalent: laws in the United States aren’t as worthy of respect, because they don’t embody humane principles nearly as well. When a legal system does embody a respectable set of values, we can begin appreciating it as a legal system. I think international law deserves to be honored not just because it’s “the law” but because it’s worthy of being honored, since it codifies a set of principles that if adhered to will produce peace. (The laws of the United States, on the other hand, codify a set of principles that have led to gross inequalities, environmental destruction, and the creation of a vast military-industrial complex.)

Legalistic criticisms of nations is always going to seem rather weak. Surely what matters is whether a thing is just, and if a country had swooped in to stop the Rwandan genocide, few would have chastised them for ignoring proper procedure. But creating a viable and meaningful set of international legal standards is crucial to ensuring a future for the human species, and when countries erode the precious and unstable existing compact, whether Syria, the United States, Britain, France, Russia, or Israel, and embrace the concept of “illegal but legitimate,” they threaten to undo all of the progress that has been made toward ensuring a lasting world peace.