Lord Liverpool's Cabinet

International Law

Jeremy Bowman wrote: “I have a question for defenders of “international law” and anyone else who maintains that the war against Iraq was immoral because it was “illegal.” What does international law prescribe as our next move? If the legal president of Iraq remains Saddam Hussein, doesn’t international law say we should go and put him right back where he was? And if that is the “legal” thing to do, aren’t we morally obliged to break the law here? And if the law is such a poor guide in the current situation, why should if have been any better in the previous situation?”

Mr. Uschanov has already ably and adequately answered one of the main questions raised above – that is, whether international law demands the restoration of Saddam Hussein. Since it appears that it does not, the remainder of Bowman’s argument falls apart.

I am not an expert on international law, but I arrived at much the same conclusion by the following line of reasoning: The American invasion of Iraq destroyed a functioning government and civil system, and did a great deal of damage to the physical infrastructure of the country. Under any legal system with which I am familiar, if it were a matter of dispute between two private parties, the person who had destroyed another person’s property would be liable for the damage, even if his actions were not illegal. However, there are many situations in which it is impossible, or impracticable, to restore the property to its original state, in which case one attempts, through mediation or litigation, to arrive at some fix which both parties accept as being equivalent.

Nothing is so abundantly clear as, that attempting to restore Saddam Hussein and his surviving associates to power would be an unmitigated disaster. To the established record of ruthlessness and violation of human rights would be added the cumulative resentments against anyone who was seen as having collaborated in any way with the foreign occupying forces. Unilaterally withdrawing, leaving a weak Iraqi government seen as a creation of the Americans in nominal power, is likewise a frightening prospect. Regardless of how we got there, we (and I speak as a taxpaying, voting American citizen) now have no moral option but to stay there until an effective civil authority more acceptable to the people of Iraq can be put in place. The alternative is a bloody civil war with the prospect that the conflict could spread to other nations in the region. That region includes not one, but four Islamic powers with nuclear capabilities – Pakistan, Kazakhstan, Uzbekistan, and Turkmenistan.

International law is something more than either a hodge-podge assemblage of national laws applied on an international scale, or an arbitrary creation of the World Court and the United Nations. It’s essentially common law, based on precedent, and rests on the authority of treaties and agreements entered into between nations. As T. P. Uschanov pointed out, much of it applies to commerce and to the use of resources which transcend national boundaries. As in domestic legal systems, an action can be perfectly legal, and yet immoral according to a particular ethical code, especially in a large multicultural system. The opposite – a law seeming to require (as opposed to condoning) something that an individual or state finds morally reprehensible – is rarer, and characteristic of totalitarian states. I can think of no example involving the World Court or the United Nations.

This question of morality versus legality is a broad one, bordering on the genuinely philosophical. Although the specific example given is spurious, it might happen that a state was party to a treaty or international accord requiring it to support some action which, according to the traditions, religion or consensus of the citizens of that country, was immoral. For example, if the World Health Organization saw fit to contribute large sums of money toward opening abortion clinics in Third World countries, the Republic of Ireland might well demur. In that case, the state is in the same position an individual citizen is in, when he is compelled to contribute his resources to an enterprise, one part of which he finds unsupportable. When the state and individual conscience conflict, which does one follow, and what principles does one use to decide? When I pose this question using a specific example, many of my fellow citizens, some well-educated and supposedly thoughtful, will agree in principle that a person should question the morality of the state but insist that the United States Government, being democratic, is immune to grave moral errors of the sort that made the twentieth century a wasteland of unprecedented carnage, and that in the specific example I give, I am just plain wrong. This argument seems circular to me; it seems to imply that individual conscience requires validation by the majority.

To return to the original question – what would international law suggest doing now in Iraq? – I think it would be at least be instructive to examine that crucible of precedents in modern international relations, the peace settlements at the end of the Napoleonic Wars, and in particular, the Bourbon restoration in France. There is an excellent set of contemporary commentaries on this, the Letters of Probus by Edward Sterling, on which I am basing my comments. He quotes extensively from Vattel’s “Law of Nations”, the then acknowledged compendium of international law as it was understood in the latter part of the eighteenth century.

The situation was somewhat different than Iraq in that the occupying force was truly international and all of the nations involved had been directly attacked by France during the course of the war that had just ended. Thus there was no question about the legality of the occupation, and no external support for its opposition. Part of our problem in Iraq is the same problem the Soviets had in Afghanistan: the internal opposition to the occupation is fanned by covert aid from external sources.

Occupation of France by foreign troops lasted a little over three years, with the final withdrawal decided upon and engineered at the Congress of Aix la Chapelle in 1818. The occupation was marked by little in the way of insurgency and left no enduring legacy of bitterness; the French nation which emerged was no paragon of stability and not immune from human rights violations, but it was stable enough and responsive enough to its citizens to evolve into a modern democracy over the course of the nineteenth century.
In attempting to provide France with a government to fill the vacuum left by Napoleon and his followers, the allies chose to work with what was left of the Ancien Regime. France had a constitution, much violated not only by Napoleon but by Louis XIV and XV. It had a parliament, and a mechanism for electing it. By working with this system, with its acknowledged flaws, the allies escaped the charge of cramming a foreign system down the throats of the French public, and they had some assurance that what they were working with was adapted to the society to which it was to be applied.

With a few exceptions, people who had been members of the Napoleonic system were not subsequently excluded from public life. The exceptions were people who, having taken an oath of allegiance to Louis XVIII during the first Bourbon restoration, allied themselves with Napoleon during the 100 days. When parliamentary elections were held in 1816, and a Cabinet appointed, a number of prominent Bonapartists were included in the new government. This included people who in Sterling’s view (a reasonable measure of conservative British opinion) were war criminals. Does giving people the right to choose include giving them the right to choose wrong? Suppose a genuinely free election in Iraq were to return the Baathist party to power? Could we live with the result? If we are not willing to live with that possibility, if we are only willing to allow as much democracy as will confirm what we desire in Iraq, let us at least admit it.

Based on historical research and my understanding of international law, I have the following conclusions:

The invasion of Iraq was a violation of international law, in particular the United States taking upon itself the task of unilaterally enforcing an agreement between Iraq and the United Nations.

That, had the violations of that agreement which faulty intelligence indicated had occurred in fact occurred, the invasion would have been justified by prudence and self-protection. Therefore, assuming that our government did not engage in deliberate deception [I reserve judgment on this one], we’re dealing with a massive mistake, not a criminal act.

That one way or another, we’re going to pay dearly for our mistake. The moral as well as the prudent thing to do is to ensure that our subsequent actions promote the well being of the Iraqi populace and the stability of the region. Neither withdrawing prematurely nor meeting an escalating internal conflict with more firepower and more repression will do this.

In theory the United Nations would be the body to step in, but I don’t see this happening in practice. When the world’s only superpower gets itself into a jam, but still isn’t willing to let go of the reins, an international organization with no real power of its own isn’t much help. Yet some sort of international intervention not dominated by the US seems to be the only answer. It has occurred to me (only partly in jest) that reviving the “Holy Alliance” – having an international organization consisting of the remaining hereditary monarchs of the world, most of whom represent inoffensive countries like Sweden and Thailand – and giving their decisions some authority, couldn’t be worse than what we have now. Deus ex machina, where are you?

Martha Sherwood

Hello. My name is Martha Sherwood and I'm making an attempt to set up a blog. If successful it will be primarily a place to post essays on political and social topics based on the careers and Parliamentary speeches of the Second Earl of Liverpool (1770-1828, Prime Minister of Britain, 1812-1827) and various members of his cabinet, notable Lord Castlereagh.

Below is an example

The Lurch

This essay was something I wrote for an Alcoholics Anonymous publication – whether they will print it or not, I do not know at present. I thought the analysis might be of interest to the Paleopsychology group, since it touches on more general topics than addictive behavior.

“The Honorable Member for Norfolk has done me the courtesy of saying that he will not leave me in the lurch. He should rather take care that he does not leave HIMSELF in the lurch.” –Marquess of Londonderry on the Report of the House Committee on Agricultural Distress, May 5, 1822.
That the above quote is not AA conference-approved literature goes without saying. That it is relevant to my own sobriety, let alone to anyone else’s, is far from obvious, and requires some explanation. I personally feel that the relevance, or at least the potential relevance, of any fact or opinion to any other fact or opinion is a corollary of the (conference-approved) axiom that nothing happens in God’s world by mistake. Ergo, if I, a recovering alcoholic in Eugene Oregon, happen to be struck by a phrase uttered in the course of an obscure debate in the British House of Commons nearly two centuries ago, there must be a reason for it.
The circumstances were as follows: Due to falling agricultural prices, farmers were experiencing financial difficulties and were pressing Parliament to afford some form of relief. The Agricultural Committee reviewed various petitions and statistics, and agreed upon a bill providing government funds to warehouse grain, an early example of agricultural price supports. This bill met with stiff opposition in the House of Commons, and was eventually withdrawn. As a member of the committee and also House majority leader, Lord Londonderry felt obliged to introduce and defend the bill, even though he himself had not supported it in the committee. He considered (and this is a basic principle of a representative government, often violated at all levels) that once a deliberative body reaches an agreement, all of the members of that body are obliged to support the decision, even if they continue to privately have reservations. Hence the Member for Norfolk, had he withdrawn his support, would have been leaving himself (as a member of the committee) in the lurch.
The dictionary defines “the lurch” as ‘an extremely disadvantageous position.’ In the game of cribbage, being ‘left in the lurch’ is synonymous with being ‘skunked.’ Somehow, when I hear the term, I picture a seedy bar in a bad part of town, from which some erring intoxicated husband calls home, saying ‘honey, come pick me up, my friends have left me in The Lurch again.’
Many alcoholics are fond of referring to their garbled thought processes as ‘the committee upstairs,’ or sometimes ‘the shitty committee.’ They conceptualize their decision-making as the product of warring and discordant voices acting at cross-purposes within their own consciousness. Possibly this is merely an exaggerated form of something which every sentient being experiences to some degree. An acquaintance of mine, a trilingual Russian immigrant, used to argue with himself in three languages, each representing a different persona. In extreme cases of multiple personality disorder, different aspects of consciousness assume distinct identities which are not fully aware of each other, but one does not have to be clinically insane to have multiple personalities. All adults were once children, with childlike personalities which at times still surface, bidden or unbidden. Those of us who hit low alcoholic bottoms generally feel that our personalities have changed considerably in sobriety, but that that old drunken Mr. Hyde still lurks beneath the surface, to be readily resurrected if we resume drinking. Our work personality may be quite different from what is displayed to our family, and changes of career or spouse may also involve considerable displacement of personal identity. All these identities are valid components of the whole, and all potentially participate in making major life decisions.
It may be that a well-integrated sane person who has led an uneventful life is possessed of a personal committee, all of whose members agree instantly. For my own part (and I believe I speak for many recovering alcoholics) I struggle with the cerebral equivalent of Lord Londonderry’s agricultural committee, in which the various selves have quite different approaches to problems, and no one point of view predominates overwhelmingly. A strong emotional reaction may, for example, fly in the face of fiscal prudence. At what point to I sacrifice my budget to my emotional needs?
If the committee upstairs simply refuses to function, the result is paralyzing indecisiveness, depression, and, for this alcoholic, a strong urge to anaesthetize myself. Rather than cease functioning, it would be better to abandon any pretense of autonomy and turn the whole process over to a hopefully benevolent dictator, such as a treatment center. Another option, if I were satisfied that one of the personalities, acting alone, was reasonably functional, would be to allow that one mastery. On a temporary basis both of these options work, but on a long-term basis any dictatorship depends for its existence on a fallible individual, and, by sacrificing flexibility to efficiency, sows the seeds of eventual failure.
The alternative to anarchy or dictatorship is some sort of democratic process however, if the committee upstairs is completely democratic, either the strongest party will dictate to the others, or no point of view will command enough to support to prevail. There is no way for a pluralistic system to simultaneously maximize individual autonomy and group cohesiveness, without recourse to a higher power.
That higher power may be an explicitly constructed God, defined by texts of an organized religion. It may be a set of mutually-agreed upon cultural norms. The higher power may or may not exercise any actual temporal authority; indeed, those powers whose authority depends on the voluntary submission of the individuals involved are more stable and effective than those which maintain their authority by brute force.
As an American I feel that one of my difficulties in conceiving of my actions as being conformable to the will of God is the lack of experience with a monarchy, and especially with a constitutional monarchy in which very little can be done without the acquiescence of both the monarch and a substantial consensus of the people he rules. An essential feature of inserting a higher power into a basically democratic system is acknowledgement that the loudest, or most aggressive, or numerically predominant segment of the collective does not always espouse the best solution for the whole. It is sometimes more advantageous in the long run for the majority to voluntarily concede a little, than for the minority to be compelled to concede a great deal.
What has all of this to do with self-sabotaging behavior – with ‘leaving oneself in the lurch’? Self-sabotaging behavior is one of the greatest pitfalls alcoholics encounter in early sobriety. Is such behavior not the aggrieved minority opinion in our personal committee urging us not to play, not to commit the necessary resources to implementing our decisions? Do we make a tentative commitment to something with time constraints, at the same time failing to plan and adhere to a schedule? Do we make extravagant, unrealistic promises to ourselves and others, knowing them to be impracticable, rather than promises we know we will have no excuse for not fulfilling? Is our decision, although technically practicable, so unacceptable to some key member of the committee, that he can never be brought into substantial agreement? We need to be aware of our limitations, and not build plans which exclude some important part of self, or attempt to fit it into a role for which it is utterly unsuited.
I have also heard alcoholics liken their psyches to a bus, and speak of decision making as choosing who will drive that bus. Imagine, then, our metaphorical committee on a bus, or better yet, on a sailing ship, since this is 1822. At any given moment, the active participation of at least some members of the committee is required, or no progress is made toward the destination. The Captain can’t make it alone. Some, but not all of the people on this voyage are capable of taking charge. As long as all is smooth sailing, it matters rather little who the leader is or how much confidence he inspires in others. When a storm hits, however, it becomes critical that someone has established himself as an authority that the others obey willingly. By analogy, to avoid leaving ourselves in the lurch – to avoid having some insubordinate crew member abandon his post – we need to have exercised our decision-making faculties in small matters, until we have confidence in ourselves in large ones. We need to become aware of principles. Since we seldom if ever experience the ultimate higher authority directly, we need to learn to recognize its manifestations in the environment and in the human community. The person we select to drive the bus had better be able to read the road map.
The Report of the Committee on Agricultural Distress illustrates another aspect of decision-making which tends to get overlooked in the computer age. Most major life decisions resemble the famous traveling salesman problem, otherwise known as the London cabbie’s dilemma. The question posed is: what is the shortest route touching at a large number of points in a complex grid of streets or roads? In theory, the problem can be solved mathematically; in practice, the volume of calculations required to do so quickly overwhelms the capacities of even powerful computers, and in real life, unanticipated events can quickly undo the best theoretical plans. An experienced salesman, on the other hand, can rapidly map out a route which is certainly close to the optimum one, and several alternatives which work. He does not waste time quibbling about fine-tuning a plan he knows is adequate, unless he is reasonably certain that the superior solution will justify the extra effort required to arrive at it.
As the event proved, it was not necessary for the Agricultural Committee or Parliament to do anything, since the market was already adjusting itself spontaneously. Many difficult situations are analogous – they appear most insoluble precisely at the point when things have begun to change for the better. Especially when we feel we have lost control, we tend to ignore signs of improvement at least as stubbornly as we earlier ignored signs of impending disaster.
An effective internal saboteur, having devised and executed a plausible foul-up, then maximizes the damage by calling an inordinate amount of attention to what has gone wrong, while studiously avoiding whatever aspects of the original plan are operating smoothly, or at least have not failed in major ways. This member of the committee is constantly complaining. He may blame himself, but more commonly he shifts the blame to those who accepted greater responsibility, often his parents. If this were a prelude to his assuming a leadership role, some good might come of it. There are times when changed circumstances make it desirable for one personality to step down in favor of another. The internal saboteur, however, is a perpetual rebellious adolescent who has never learned to be a responsible leader, a conscientious follower, or a cooperative worker among equals. In a robust system, he may have his place – after all, there are dangers in becoming too complacent – but, if the committee is operating under stress, and must make important decisions rapidly under circumstances when the correct course is not obvious, it is best to put this member in his place, which is where he is least involved and can do the least harm. Then, however assiduously he attempts to leave us in THE LURCH, we will still have enough alternatives to find our way to our destination in one piece.

Martha Sherwood-