Bikundo, Edwin --- "The Politics of Justifying Force: The Suez Crisis, the Iraq War, and International Law" [2014] SydLawRw 31; (2014) 36(4) Sydney Law Review 727
The Politics of Justifying Force: The Suez Crisis, the Iraq War, and International Law by Charlotte Peevers (2013) Oxford University Press, 288 pp, ISBN 9780199686957
Edwin Bikundo[1]
Charlotte Peevers’ book was stimulated by ‘the intuition that international law appeared to matter to the British debates of 2002–03 about using force against Iraq’.[1] It sets about its task by examining the politics of justifying and prohibiting force through the medium of law in that public political debate. As such, it is a valuable contribution to the scholarship on the topic and will be of considerable interest to students and scholars of international law, political science and international relations. This review, however, takes a different approach to the subject matter. It reads the book through a post-colonial and critical theoretical lens and, from that alternative standpoint, weighs up its undoubted strengths and illuminating insights. This theoretical lens turns Peever’s intuition onto its head by grappling with the extent to which the British debate mattered to either international law or to the use of force.
The book’s unique focus is British domestic discourse regarding two critical situations in international relations history: the Suez Crisis of 1956; and the invasion of Iraq in 2003.[2] This focus and narrow methodological starting point, the reasons for which are left to the reader to ponder, have a two-fold purpose: namely, to interrogate the purportedly constraining effect of international law on domestic policy; and to produce a thick description of the legal history of the justification of force as highlighted in each of the case studies selected. To its credit, the study is neither limited to, nor dependent upon, prohibitions on or exceptions to the use of force, but instead focuses on the idea of authority and its justification. Authority in this sense is that which is based on the management of ‘international security politics’.[3] Such managerial politics, Peevers argues, ‘embeds Great Power “management” of international security politics, whilst at the same time acknowledging the formal equality of states by gesturing towards sovereignty and the inherent right of self-defence’.[4] Thus, Peevers describes ‘[t]he authority to speak the law [as] often determined by the status of the speaker of the invocation or imposition. Some actors appear to hold greater legitimacy in claiming powers, than others’.[5] The book does not query the provenance of this greater claim to legitimacy — a claim that is synonymous with having jurisdiction (or the power) to perform a certain act in a certain place. Be that as it may, Peevers sees the justification of authority in the concrete where the law literally speaks, as juris-diction.[6] Jurisdiction therefore has a double valence as both speech and action. But who is to speak the law? There will be more on this idea of speaking the law coinciding with the power to act later in this review. The book provides a mythic metaphor to conclude that these claims to authority vest in the symbolic founders of the international system (who are also, and not by coincidence, the Great Powers). They, like Janus, are the ‘gate-closers and guardians of the reluctantly opened gate’ between war and peace, ‘ever-vigilant to close it again’.[7] ‘These guardians clearly also hold power through authority’.[8] Peevers’ study shows that the end of the Cold War unbound a muscular liberalism through ‘hegemonic leadership’.[9] Indeed, as Peevers points out, explicit references to ‘outlaw states’ are now invoked to civilise ‘those states seemingly incapable of becoming members of a responsible, international community’.[10] This language referencing outlaws and invocations to civilisation (against barbarity and savagery) is, of course, crucial in determining authority. That neither outlaws, nor savages, nor barbarians can speak the law — being, as Rudyard Kipling expressed it ‘without the law’[11] — is passed over in silence in the more mainstream accounts of the historical development of law on the use of force and yet is not quite unsaid.[12]
Unlike the example set by Simpson,[13] a key critical interlocutor in the field, the second chapter of the book does not attempt to query the established and legalised international hierarchy and hegemony, but moves to theorisation instead. It discusses some relevant international relations theories such as liberalism, constructivism, transnational legal process and policy-oriented jurisprudence. Each is addressed on their own terms and rounded off with a general critique of law and politics. The message here appears to be that language is key, especially to pay ‘attention to the authority of the law as it speaks through its users, in other words to juris-diction’.[14] This is where Peevers’ case studies are useful to correct and supplement the deficiencies in theoretical accounts of the politics of justification.[15] They enable her to argue that the Suez Crisis was ‘not a victory for international law’ in securing ‘compliance with norms on the use of force’, but rather was socialising a post-imperial Britain to align its national interest to the vagaries of globally-based international action with the United Nations as its centre.[16]
With this understanding of the pivotal role of the United Nations in place, Chapters 3 and 4 shift the focus onto the selected case studies. Chapter 3 expands the critique of the British domestic discourse on the Suez Crisis in order to provide ‘a rich, empirical account of international law’s role in domestic politics’ and to contextualise theoretical accounts of the politics of justification.[17] This discussion could have been supplemented with material beyond its very specific focus on the United Kingdom in the context of the international use of force. Any discussion of the international use of force in both the Suez Crisis and the Iraq War — which centres on the United Kingdom, but with the United States situated peripherally — seems to downplay the decisive role of the United States (and a supporting cast of others) in both instances. If the true role played by the United States is acknowledged, the United Kingdom would quite plausibly then appear to be accommodating American power, rather than being a Great Power in its own right. Indeed, it would, by the same token, not be overly concerned with either domestic or international public opinion, or even being a good international citizen in the United Nations model.
All that notwithstanding, Chapter 4 evaluates the same theoretical content as Chapter 3, but this time in relation to the Iraq War of 2003. It quite accurately contextualises the Iraq War in the Cold War, colonialism, the United States as a hegemon and the First Gulf War. The discourse of legal justification in that debate then reveals a divide between public justification and private discussions regarding the United States as an indispensable ally for the United Kingdom.[18] Surely then, it is open to conclude that it is with the United States and not the United Nations that the United Kingdom was aligning itself? Chapter 5, which follows on by drawing out a number of implications from the case studies, does not reach this conclusion. Instead, it paints a complex picture. Intriguingly, secrecy is significant,[19] even though the public debate is what is supposed to legitimate the entire system. The media, therefore, plays a prominent role[20] and ‘the international’ is fairly prominent in that regard.[21] Chapter 6 brings the book to a conclusion by considering the relationship between using force on the one hand, and using law on the other. The author treats this relationship as if the two were analytically separate, when in fact they are inextricably conjoined, as the common understanding of the law as a set of enforceable rules suggests. This mysterious conjunction of might and right, like a repressed memory, reappears in this chapter. The chapter revisits the Janus metaphor already encountered in Chapter 1 and extends it to two faces of international law in turn: the domestic and the international spheres. [22] It therefore highlights how international law is practised and used.[23] That two-faced attitude to international rules emphatically does not constrain violence, but actually enables ‘war pursued through law’.[24] The conclusion would appear to be that political authority includes the power to speak through the law as some sort of enabling language. Or as Schmitt would express it, ‘Caesar also reigns over the grammar’.[25]
It is a small pity for such an otherwise highly meritorious work that the dichotomous ‘prohibition’ versus ‘exception on the use of force’ is all too briefly considered and then quickly dismissed early in the piece. Agamben’s apposite work on the state of exception, although briefly noted twice in the book, is not granted any sustained attention.[26] This is unfortunate because Agamben makes several observations that are pertinent to the author’s concerns regarding speaking the law, in particular that the structure of law is founded upon the structure of human language. This is made possible through the state of exception as that situation whereby the sovereign decides on the meta-legal applicability of the law itself and not merely whether a certain act is legal or illegal. To speak the law, in this sense, expresses the bond of inclusion simultaneously with exclusion to which a thing is subject because of the fact of being named as, say, an outlaw or uncivilised, and such.[27] As a consequence, the legal fiction of the sovereign equality of states and the liberal orthodoxy of an all-powerful public opinion are rendered all but threadbare. This small quibble over a relatively minor omission notwithstanding, the book’s appeal and utility to its intended audience is assured.
[1] Lecturer, Griffith University Law School, Gold Coast, Queensland, Australia.
[1] Charlotte Peevers, The Politics of Justifying Force: The Suez Crisis, the Iraq War, and International Law (Oxford University Press, 2013) 8.
[2] Ibid 1.
[3] Ibid 4.
[4] Ibid.
[5] Ibid.
[6] Ibid 5, 11 citing Shaun McVeigh and Sundhya Pahuja, ‘Rival Jurisdictions: The Promise and Loss of Sovereignty’ in Charles Barbour and George Pavlich (eds), After Sovereignty: On the Question of Political Beginnings (Routledge, 2010) 97, 98–9.
[7] Ibid 4.
[8] Ibid (emphasis in original).
[9] Ibid 6.
[10] Ibid 7.
[11] Rudyard Kipling, ‘Recessional’, The Times (London), 17 July 1897, 13, The Times Digital Archive.
[12] For an alternative retelling of the historical context, see Frédéric Mégret, ‘From “Savages” to “Unlawful Combatants”: A Postcolonial Look at International Humanitarian Law’s “Other”’ in Anne Orford (ed) International Law and its Others (Cambridge University Press, 2006) 265.
[13] Ibid 3, 4, 25 citing Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge University Press, 2004).
[14] Ibid 35 (emphasis in original).
[15] Ibid 65.
[16] Ibid 127.
[17] Ibid 66.
[18] Ibid 143.
[19] Ibid 203–5, 208–9.
[20] Ibid 219–20.
[21] Ibid 215.
[22] Ibid 244
[23] Ibid 245.
[24] Ibid 247.
[25] Timothy Nunan (ed/trans) Carl Schmitt: Writings on War (Polity Press, 2011) 23.
[26] Giorgio Agamben, State of Exception (Kevin Attell trans, University of Chicago Press, 2005) [trans of: Stato di Eccezione (first published 2003)].
[27] Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Daniel Heller-Roazen trans, Stanford University Press, 1998) 20 [trans of: Homo Sacer (first published 1995)].