Communist Party of Australia

We acknowledge the Sovereignty of the First Nations’ Peoples.


Journal of the Communist Party of Australia

ISSUE 65August 2017

On the illegality of war

Part 2

Editorial Note: This article appears in four parts with the first part published in issue 64 of this journal.

IV. For the struggle against war

The argument for the appropriation of international law by the world’s progressive forces has particular application to the struggle to prevent war. Koskenniemi has identified a way in which a dialectical approach towards international law can be used in the anti-war struggle via incorporation of a deconstructionist sensibility. Identifying that a dialectical materialist approach is essential to “a properly historical view”, through its recognition that historical development is achieved through the conflict of opposites involving “moments of challenge, collapse and construction”, Koskenniemi has applied a dialectical understanding to the postmodernist philosophy of deconstructionism.[1]

He argues that political struggle in “postmodernity” is also understood as being waged over the meaning of legal symbols: “... words such as ‘sovereignty’, ‘democracy’, ‘human rights’, ‘jus cogens’, or ‘terrorism’, for example.”[2]


points to the radical indeterminacy (or ‘undecidability’) of the symbolic and redescribes social conflict in terms of (political) conflict over what social symbols should mean – whose action they should support, whose action they should condemn.[3]

While deconstructionist philosophy, with its focus on form and repudiation of content, essentially serves the interests of political reaction, Koskenniemi has shown that its method is dialectical in nature. In this understanding, where dialectics demonstrates “the historical contingency of the social”, he says “... deconstruction performs the work of dialectics by showing the radical instability of forms of representing society.”[4]

In elucidating the operation of a “dialectical-deconstructive analysis”, Koskenniemi recognises that the deconstructionist part of the process focuses on the constant conflict of ideas about the meanings of legal concepts (sovereign authority is legitimate depending on its effectiveness or on its virtue, legal obligation is founded on a command theory or on a theory of justice, etc). Without applying a dialectical understanding, this ideological conflict is played out in a discursive way and leads to idealist interpretations of historical developments (eg the “clash of civilisations”) in which “the conditions of the emergence or decline of such ideas remain shrouded in mystery.”[5]

Out of the (dialectical) clash between dialectics and deconstructionism,[6] however, emerges a new deconstructionism strengthened by its recognition of the social origins of conflicting ideas and representational forms. Dialectical materialism too is strengthened by its incorporation of the deconstructionist method. While dialectical/historical materialism has always recognised the important role of ideas and ideological conflict in helping shape historical development, deconstructionism provides an additional dimension by which this process may be explored.

Koskenniemi notes that the contesting ideas stand in dialectical relationship to each other; they are reciprocal, dynamic, constantly coming into and going out of existence. He locates ideological conflict in the context of real historical tensions; ideological dichotomies are “articulations of positions in concrete, historically situated political struggles.” The “radical instability” in ideological interpretations of legal concepts is temporarily resolved in “concrete history” by the particular “configuration” and hierarchy of forces at any one time and the decisions taken in that context, which establish particular legal regimes and determine what interpretations of legal concepts will prevail.[7]

Koskenniemi stresses that what deconstructionism brings to this analysis of ideological conflict over legal concepts is recognition of the “indeterminacy” of each ideological framework; indeterminacy which dialectics would explain as arising from each framework containing within itself the seeds of its own negation. Deconstructionism does not trump dialectics – rather, enhanced by a dialectical analysis, deconstructionism would now understand legal concepts as not being “carriers of fixed meanings” but as other surfaces upon which social conflict plays out. Conceived as such, this “irreducibly political character” of law would not deny its nonetheless legal character: “It would merely point to the inevitable moment of choice in favour of one contested meaning against another.”[8] Deconstructionism understood and applied dialectically thus demonstrates both the fluidity of legal concepts, and their openness to ideological counter-interpretation and appropriation via conclusive political decisions made in the context of any prevailing social order.

Such an understanding of law liberates the ideological debates about legal concepts from the paralysing confines of “abstract and unhistorical” liberal reformist thinking.[9] This is achieved by pointing to the social foundations of the contesting ideas and therefore to the real transformative potential of progressive action around legal questions. Koskenniemi phrases this in terms of political decisions being made as to whether to maintain or challenge a particular legal structure:

dialectics grasps the world as history for which change and practice are central. ... It is the dynamism of practice ... not the internal forms of diplomacy or the market that accounts for change.[10]

In illustrating the potency of the right decision being made at the right time, Koskenniemi identified the international movement that condemned the war in Iraq as illegal under international law. That articulation of the war as illegal – that decision by the world’s peoples – raised the issue to the level of the US-led coalition’s actions amounting to a universal violation affecting everyone (and not simply being an affair between the US and Iraq). In turn the “emancipatory promise” of international law was revealed: specifically in constructing “a sense of universal humanity through the act of invoking it.”[11] Such popular, mass mobilisation against war, has the potential to positively influence the development of customary international law through contributing to the satisfaction of its subjective constitutive element, the opinio juris of states, as will become clearer later.

The point is: the people in action, around progressive causes, will influence international law in a progressive direction. The particular susceptibility of international law to change is underlined by the conflict over meanings and interpretations of legal concepts in its discourse, facilitated by its own internal structure and dynamics. The awareness that international law is susceptible to change and appropriation on the basis of ideological struggle is certainly shared by the dominant imperialist powers in the world. Chimni has described how in recent decades, international capitalism, led by “the foremost imperial state, the United States”, has been seeking, in the context of accelerated globalisation and in the absence of “a global countervailing power”, to redefine the international law on the use of force; basically trying to overturn the post-Second World War consensus around the UN Charter’s prohibition against the use of force against the political independence and territorial integrity of states (Art 2(4)) and legitimising imperialist intervention in states that do not comply with the new order. Against this drive, Chimni calls on progressive forces to reconstruct international law creatively and imaginatively.[12]

Calling for ideological struggle to appropriate international law in progressive interests is not to say that such struggle should substitute for other forms of struggle. Law has its limitations. Chimni for one recognises its limitations and class character.[13] Bearing in mind what has been said above about the fluidity of contradictory interpretations of legal concepts, we should also be mindful of Miéville’s argument that the legal forms around which the conflicting arguments are made will inevitably be “ripe for counter-appropriation” and that the interpretations that will prevail will be those of powerful states in the world.[14]

But accepting the possibility of counter-appropriation by the great powers is not an argument for doing nothing. Dialectics teaches us that things are always coming into and going out of existence, that history is not made by any one ruling class but unfolds in the context of class struggle; this means that, inevitably, international law is a contested – and contestable – realm. History shows that international law is open to progressive forces arguing successfully for their interpretations of legal forms and concepts; it is a matter of asserting and claiming validity for their interpretations. The people in struggle change international law, as they do the world.

A. A contested realm

That international law is a contested and contestable realm, is sharply revealed by the attempts in recent decades to re-shape the international law borne of the Second World War, particularly since the collapse of the Soviet Union. As referred to above, Chimni noted that during the Cold War there was broad consensus around the operation of Article 2(4) of the UN Charter containing the general prohibition on the use of force by states.[15] The breakdown of that consensus has been manifested in a number of ways, including, for example, the attempt by the imperialist powers to have the doctrine of humanitarian intervention incorporated in “an emerging bourgeois imperial international law in a bid to establish global political domination.”[16] The development of this and other interventionist doctrines (eg the responsibility to protect doctrine employed in relation to the interventions in Libya in 2011 and, more recently, in Syria) [17]attests to the central role envisaged by the imperialist powers for their military forces in the global expansion of transnational capital.[18]

It has been argued that if a doctrine of humanitarian intervention in some circumstances did exist prior to 1945:

the reluctance of states to invoke it in the post-war period prior to 1991 suggested that it [had] not survived Article 2(4), [of the] UN Charter. But the end of the Cold War and the arrival of President Saddam Hussein [had] proved catalysts for change ... .[19]

There are a number of instances of this change. In 1991 following the defeat of Iraq in the first Gulf War and the suppression of rebellions in the north and south of the country by the government of Saddam Hussein, the UN Security Council adopted Resolution 688 which recognised there was a severe humanitarian crisis in Iraq, particularly in the north where the local Kurdish population were seeking refuge following the suppression of their rebellion. The draft of what became Resolution 688 had been submitted to the Security Council by Belgium, France, Britain, and the United States.[20] Resolution 688 was the precursor of intervention in Iraq by the military forces of the United States, Britain, and France to establish “safe havens” for displaced Kurds and “no fly zones” in the country’s north. As if to attach legal credibility to the humanitarian intervention doctrine, or perhaps indicating its tentative status, Resolution 688 also stated that the repression of the rebellions in Iraq threatened international peace and security in the region – an allusion to the enforcement power available to the Security Council under Chapter VII of the UN Charter to take action in response to threats to international peace and security.[21]

The British Foreign Office recognised an evolution in the law concerning humanitarian intervention, stating in 1992 that Britain committed forces to support the establishment of the ‘safe havens’ because: “We believe that international intervention without the invitation of the government of the country concerned can be justified in cases of extreme humanitarian need.”[22] Even without relying on a Security Council Resolution, the British Government was prepared to argue there was a customary international law principle[23] of humanitarian intervention that justified the intervention in Iraq, as “international law ... develops to meet new situations and that is what we are seeing now in the case of Iraq.”[24]

Following the Iraq precedent, in 1992 intervention in the former Yugoslavia (specifically Bosnia and Herzegovina) and in Somalia was authorised under Security Council resolutions ostensibly to enable the provision of humanitarian assistance in areas where there was war.[25]

Connected with this particular interpretation of humanitarianism as justifying military intervention, was an ideological attack on the prevailing meaning of state sovereignty. Article 2(4) of the UN Charter prohibits the use of force by states “against the territorial integrity or political independence of any state”. Given this prohibition, it is unsurprising that complementing the efforts of the imperialist powers to consolidate the doctrines of humanitarian intervention and pre-emptive attack in international law, and simultaneously serving the globalising interests of transnational capital, is the attempted “reconfiguration” of the principle of sovereignty: it being characterised as an “anachronism” in certain situations.[26] Questioning the legitimate existence of certain states, legitimises armed intervention against them.

An instance of this ideological process of de-legitimising particular states and legitimising new interventionist doctrines, was the 1995 Global Cultural Diversity Conference in Sydney. Hosted by the Australian Government for the International Year for Tolerance and attended by UN Secretary General Boutros Boutros-Ghali, it was held in the early years following the collapse of the Soviet Union and the socialist governments of eastern Europe, and against the background of the violent disintegration of Yugoslavia. The Australian Government representatives called for the state to be re-defined and crudely argued a case for the dismemberment of states[27] including by intervention – “non-interference in the internal affairs of other countries – these days [having a] ... much reduced meaning”. Counterposing humanitarianism to the principle of respect for state sovereignty as if they were mutually inconsistent, the Australian Foreign Minister stated: “the UN Charter is at least as much ... about the protection of human rights ... as it is about protecting the territorial integrity of states ...”. The UN Secretary General alluded to the UN’s changing perception of its role in the mid-1990s, namely, pursuing a “global mission of ... supporting democratisation” in the world.[28]

While the process of reconfiguring state sovereignty was important to the international law strategy of the imperialist powers to help facilitate their course of military aggression, by the late 1990s their drive to war had also become evident in their increasingly disdainful approach towards existing legal procedure. In 1998 force was used against Yugoslavia by the US and against Iraq by the US and Britain who claimed legal authority to do so in the absence of explicit Security Council authorisation. The US conflated the UN Security Council’s condemnation of Yugoslavia in relation to Kosovo in Resolution 1199 with an authorisation to use force, which the Resolution did not explicitly contain. The US argued that the Resolution contained implicit authorisation for the use of force by NATO. Later in the same year, the US and Britain bombed Iraq without Security Council authorisation, claiming legal authority to do so on the basis that Iraq had failed to cooperate fully with UN weapons inspectors in violation of the cease-fire. Lobel and Ratner argued that the claims by the US and Britain in relation to Kosovo and Iraq that they could legally use force on the basis that there was implicit authorisation from the Security Council, amounted to a violation of the UN Charter.[29]

Lobel and Ratner stressed that for the use of force against a state to have been properly authorised by the UN Security Council it is necessary that the Security Council should have taken an explicit decision to that effect, and that authorisation could not be inferred on the basis only of other Security Council resolutions in relation to the state concerned, that did not contain explicit authorisation, even if the resolutions were condemnatory of the state’s actions. Lobel and Ratner argued that the requirement for explicit Security Council authorisation stemmed from underlying principles of the UN Charter, including: “that force be used in the interest and under the control of the international community and not individual countries”.[30] The implicit Security Council authorisation argument was one the supporters of the 2003 war against Iraq would return to.

In contrast to the position of Lobel and Ratner, Wedgwood suggested that the war over Kosovo may have signalled:

the emergence of a limited and conditional right of humanitarian intervention, permitting the use of force to protect the lives of a threatened population when the decision is taken by what most of the world would recognize as a responsible multilateral organization [NATO] and the Security Council does not oppose the action.[31]

In 2000, Dupuy referred to the very extensive interpretation of the provisions of Chapter VII of the UN Charter (which provide the Security Council with authority to take military action in circumstances where the peace is threatened) or Security Council resolutions made pursuant to it, and alternatively, the ignoring of those provisions and resolutions. This was illustrated by reference to the actions of the US, alone or in alliance with Britain, in bombing Iraq to compel its government to disarm.[32] Dupuy identified a weakening of the post-war system of collective security as operating via the UN Security Council, and pondered whether, in the context of globalisation, there was a strategy aimed at:

replacing the legal norms and procedures set up after the Second World War by the predominant reign of market forces ... to deregulate the international system ... [to substitute] the laws of the market for legal norms ... .[33]

That in this era (around the turn of the century) the re-interpretation by the major imperialist powers of long-established principles of international law prohibiting the use of force, was emblematic of an increasingly brazen preparedness to gain their ends by military aggression, can be seen in British Ministry of Defence documents such as the Strategic Defence Review of 1998 which stated that in the post-Cold War era Britain “must be prepared to go to the crisis” instead of having the crisis come to it. Carty concluded in 2005 that: “the threat and use of force are becoming once again an integral part of UK national policy.”[34]

The efforts of imperial powers to interpret international law in such a way as to justify and excuse their military adventures are well demonstrated by the experience of the Iraq War. In part three of this series, the themes discussed above will be examined through a case study of the Iraq War, allowing readers to see these principles applied in practice.

[1] Bothe M, “Terrorism and the Legality of Pre-emptive Force” (2003) 14 European Journal of International Law 227 at p 228.

[2] Though this does not abrogate the role of the UN Security Council. Article 51 provides that the exercise of self-defence is unimpaired “until the Security Council has taken measures necessary to maintain international peace and security” (emphasis added). The Article also requires states taking measures in self-defence to immediately report these to the Security Council. Finally, Art 51 provides that such measures “shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” See also Bothe, “Terrorism and the Legality of Pre-emptive Force”, pp 228 - 229.

[3] Under Art 39 of the UN Charter it is up to the Security Council to determine whether the peace etc is threatened, and, on that basis, to decide what action shall be taken under Art 42 to maintain or restore international peace and security. To this end, the Security Council may also decide to authorise measures “not involving the use of armed force” (eg interrupting economic relations) under Art 41. See also Bothe, “Terrorism and the Legality of Pre-emptive Force”, pp 228 – 229.

[4] See: Charlesworth H and Maxwell C in The Australian, 24 March 2003; Bartram D and others in The Australian, 18 March 2003; Kelly P in The Australian, 12 March 2003; Harris T, “Lawyers in bid to hold Diggers back”, The Australian, 20 March 2003, p 4; Kritsiotis D, “Arguments of Mass Confusion” (2004) 15 European Journal of International Law 233 at pp 241 - 242, 252 - 254, 265 - 267; Carty, “The Iraq Invasion as a Recent United Kingdom ‘Contribution to International Law’”, pp 144 - 145.

[5] Carty, “The Iraq Invasion as a Recent United Kingdom ‘Contribution to International Law’”, p 144; Kritsiotis, “Arguments of Mass Confusion”, pp 253, 265.

[6] Charlesworth and Maxwell, The Australian, 24 March 2003.

[7] Harris, “Lawyers in bid to hold Diggers back”; Bartram and others, The Australian, 18 March 2003.

[8] Harris, “Lawyers in bid to hold Diggers back”.

[9] And “... on the use of legal concepts and terminologies such as ‘authorization’ and ‘material breach’ and ‘ceasefire’ – and upon the notion of precedent”: Kritsiotis, “Arguments of Mass Confusion”, p 244.

[10] Kritsiotis, “Arguments of Mass Confusion”, pp 267 – 269.

[11] Kritsiotis, “Arguments of Mass Confusion”, pp 265 – 267.

[12] UN Security Council Resolution 1441 (2002) para 12.

[13] Kritsiotis, “Arguments of Mass Confusion”, p 267.

[14] Kritsiotis, “Arguments of Mass Confusion”, p 267.

[15] They also echo the arguments of other legal commentators who challenged the rationale of implicit UN Security Council authorisation, argued by the imperialist powers to justify their bombing of Kosovo and Iraq in the late 1990s.

[16] Shearer I, 2003 – The Year of International Law: The Legality of the Iraqi & US War (NSW Young Lawyers, 2003).

[17] See the report of the Security Council meeting at which Resolution 1441 was adopted (at UN document S/PV.4644): the US representative said at p 3 – “As we have said on numerous occasions to Council members, this resolution contains no ‘hidden triggers’ and no ‘automaticity’ with respect to the use of force. If there is a further Iraqi breach, reported to the Council ... the matter will return to the Council for discussions as required in paragraph 12.”; and the British representative said at p 5 – “Let me be equally clear ... as a co-sponsor with the United States of the text we have just adopted. There is no ‘automaticity’ in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in paragraph 12.”

[18] Including the other permanent members: China, France, and the Russian Federation.

[19] For example, the representative of China said: “The text no longer includes automaticity for authorizing the use of force. According to the resolution that has just been adopted, only upon receipt of a report ... on Iraq’s non-compliance and failure to cooperate fully in the implementation of the resolution, will the Security Council consider the situation and take a position.” (at UN document S/PV.4644, p 13).

[20] Kelly, The Australian, 12 March 2003.

[21] See: Overington C, “Reality bites for headstrong superpower”, The Sydney Morning Herald, 17 February 2003; The Australian, 12 February 2003 and 7 March 2003; The Weekend Australian, 15 - 16 February 2003.

[22] Charlesworth and Maxwell, The Australian, 24 March 2003.

[23] See: The Weekend Australian, 8 - 9 March 2003; The Australian, 13 March 2003; The Weekend Australian, 15 - 16 March 2003. Chile was warned by the US that a pending free-trade deal with it could be delayed, and Guinea and Cameroon were threatened by the US that it might not support loans both countries needed. Aside from the issue of securing another Security Council resolution authorising war, Turkey was subjected by the US to both threats and inducements in respect of billions of dollars in aid/loans to secure its agreement to allowing US troops on its soil for the invasion of Iraq.

[24]The Sydney Morning Herald, 8 - 9 February 2003.

[25]The Australian, 18 March 2003; The Guardian Weekly, 20 - 26 March 2003. “The US has the sovereign authority to use force in assuring its own national security,” said President Bush (The Australian, 19 March 2003).

[26] This will be discussed in the next section.

[27] This is a body of international law conceptually distinct from treaty-made law, and it essentially develops through the practice of states and their perceptions of their legal obligations. See also footnote 83.

[28] Bothe, “Terrorism and the Legality of Pre-emptive Force”, pp 228 – 230.

[29] Bothe, “Terrorism and the Legality of Pre-emptive Force”, p 231. See also Harris, Cases and Materials on International Law, p 896

[30] Bothe, “Terrorism and the Legality of Pre-emptive Force”, pp 227, 236.

[31] Quoted in Sofaer AD, “On the Necessity of Pre-emption” (2003) 14 European Journal of International Law, 209 at p 211.

[32] “Every measure will be taken to defeat Saddam”, The Australian, 19 March 2003, p 4.

[33] Bothe, “Terrorism and the Legality of Pre-emptive Force”, pp 232 – 233.

[34] Kritsiotis, “Arguments of Mass Confusion”, p 255.

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