The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Wednesday, October 08, 2003
 

Pre-emptive war and international law - interesting article


There was a time, before the Iraq invasion, when international law seemed important in the context: even USG would occasionally give a nod in that direction (though only so long as US forces were not yet in position to move!). During this period, a good many pieces in this blog sought to navigate the legal maze.

Once the war kicked off, the law books were appropriated for use as door-wedges - inter armas silent leges - and the caravan [1] moved on. The law proved pretty much irrelevant to the act of war - and there's been remarkably little legal action so far in relation to the conduct of the war and the occupation [2].

An article appearing in April 2003 on the law of pre-emptive war represents perhaps the worst timing since Chamberlain said Hitler had missed the bus. But Michael Schmitt provided it [3].

Given the legal lull, I'm not motivated to examine it in any detail. My impression is that his is not an analysis that would cause USG excessive difficulty: his starting-point is Bush's National Security Strategy, his conclusion that pre-emption is a fact of life to which international law will have to accommodate itself. He quotes Dean Acheson's (he says) well-known assertion that
the survival of states is not a matter of law
with only slightly modified rapture (he says Acheson somewhat overstates his case).

And for those concerned to see the reassertion of legal control over the international use of force, he has words worthy of Sir Humphrey Appleby on his best - and most acidic - form:
Ultimately, law must be construed in the context in which it is to be applied if it is to remain relevant...

To grovel before a hyper-power which expresses its commands with such elegance feels almost like a duty!

  1. One might say, the Camel News Caravan - the embeds combining sand and showbiz - though no J Fred Muggs.

  2. The Belgian spoilsports neutered their Judge Dredd universal jurisdiction law, the weasel squealing under Uncle Sam's boot, though the José Couso case apparently rumbles on (or was doing on August 20).

  3. Preemptive Strategies in International Law (300KB PDF) 24 Michigan Jnl Intl Law 513.


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