If Daniel Patrick Moynihan hadn’t died this week of complications from a burst appendix, he might have died of embarrassment. Not necessarily over what his country is doing in Iraq, but over what his country’s leaders are saying about it. The late senator from New York was a man of policy passions, and one of them was international law. “In the annals of forgetfulness,” Moynihan wrote in 1990, “there is nothing quite to compare with the falling from the American mind of the idea of the law of nations.” The leading examples of the time were a series of U.S. military adventures in Latin America during the 1980s, which we took less and less trouble attempting to justify under our various treaty commitments. The charming notion of “annals of forgetfulness” was a typically over-the-top Moynihan rhetorical conceit.
But when it comes to international law, the United States is a forgetful old man whose forgetfulness comes and goes with suspicious convenience. Even as Moynihan’s book On the Law of Nations was coming out, President Bush the First was justifying Gulf War I primarily on the basis that Iraq’s invasion of Kuwait was a violation of international law. Grandiose talk from the previous decade about how petty considerations such as international borders should not be allowed to impede the spread of democracy and the flowering of human rights were put aside for the duration. Kuwait is not a democracy. So, our justification for driving the invaders out was that international law honors borders no matter what kind of government they protect. We even got United Nations approval for our efforts. How quaint.
At the beginning of Gulf War II, we forgot … we forgot … we forgot … oh, yes: international law. We forgot international law once again. When the U.N. Security Council would not play ball, we declared that our own invasion of Iraq was justified as a sovereign act of long-term self-defense against potential weapons of mass destruction, by the human rights situation within Iraq, and by the hope that removing Saddam Hussein will start a chain reaction of democracy and freedom in the Middle East. Don’t bother us with your petty i-dotting and t-crossing: We’re thinking big here.
But that kind of talk is so very last week. Come to think of it, it was just last week. But today our head’s in a very different space and we’re extremely concerned about violations of international law. Concerned, alarmed, and outraged. Specifically, we’re deeply offended by Iraq’s violations of the Geneva Conventions by showing U.S. prisoners of war on television. We’re also angry that some Iraqi soldiers are waving the white flag in fake surrenders and violating the rules of war in other ways.
In a war premised on the belief that Saddam Hussein is planning to terrorize the world with nuclear bombs and invisible disease spores, and that the niceties can’t be allowed to get in the way of stopping him, it is odd that matters of flags and photographs even come up. We, the United States, are pretty clearly violating the Geneva Conventions ourselves in our treatment of Afghan soldiers we’ve imprisoned at Guantanamo, and we’ve justified this (to the extent we’ve bothered) with the same “don’t be naive” arguments used for ignoring the Security Council about Iraq. So, why are we even raising the issue of international law now? Why do we care?
We care, above all, because we want our soldiers who have been captured to be treated well. We also care because of the propaganda value of asserting that the enemy is behaving shamefully even by the low standards of war among nations. International law can help by establishing, in detail and in advance, what exactly those minimal standards of war etiquette are. (This is no time to be awaiting an answer from Miss Manners.) And even though there are no police to enforce it, international law can also create a fairly powerful incentive to obey the rules it lays down.
How does it do that? By creating a web of rules, each of which is stronger for being part of the web than if it were a single thread dangling alone. Every nation will have rules it cares more about and rules it cares less about, times when short-term national self-interest is served by some rules and times when obeying requires some short-term sacrifice. But a vested interest in being seen as obeying the rules—and in seeing others obey most of the rules most of the time—can overcome the temptation to break any individual rule when it suits your purposes.
As the only superpower, the United States needs international law less than other nations. We can protect our interests with brute force if we want to or if we believe that nothing else really matters in the end. What we cannot do is to sneer at international law one day and invoke it the next. Nor can we pick and choose among the agreements we’ve signed and expect other countries not to do the same.
This is not a toasty matter of sentiment or expecting others to follow a high-minded example. And it does not depend on perfection. Even domestic law, which comes with a formal method of law enforcement, is not an all-or-nothing affair: If most people are law-obeying most of the time, that’s good enough to make the whole system self-reinforcing. The nations of the world still live in something much closer to the state of nature, in which it’s every player for itself. Without cops, informal incentives are both more important and harder to come by. But even among nations, each decision to obey or ignore a particular rule strengthens or weakens all the other rules as well.