Lenz Blog

The Robber, the Rapist, and the Revolutionary

Here are some short stories of three fictitious people and their problematic relation to the law.
First there is Ray, who has robbed a gas station. As he tells us:
“I’m sorry about shooting that kid’s leg. She was in the way. But I got my tank full all right, with no damage whatsoever to me. I think this operation was a full success.”

Then there is Harry. Hear what he tells us about his newest conquest:
“Of course I could have asked her first. But I had not much of a problem dealing with her resistance anyway. I’m much stronger than her. Actually she’s cheering me right now. Turns out she likes me. I think this operation was a full success.”
I have pointed out before: No one bothered to ask the Iraqi people before the invasion if they actually wanted a regime change war or not. So rejoicing in the cheers of some Iraqis now seems to be the moral equivalent of calling a rape a successful operation if the victim approves the next day.
Last in line is Joe. He is the leader of a revolution which succeeded in a certain country in the late 2080s:
“The decisive factor was surprise. Before they knew it, we controlled the media, the military, and the Internet. I think the operation was a full success.”

The illegal war seems to be mostly over – seamlessly followed by an illegal occupation now, which probably won’t be over anytime soon. I for one expected this great victory for the Americans. They do have more military power than Iraq had.
But the question from the legal point of view: Does that change anything? Is there any way a military success makes an illegal war legal?
To address that question, I compare the situation to that of the robber, the rapist, and the revolutionary.
The robber’s case is the easiest. The “success” of his operation doesn’t matter in the least. Even if he gets away with his crime for some reason, even if he lives happily ever after with his illicit gain of a full gas tank, that doesn’t make his action legal.
What about the rapist? Even if his victim really approves of his action after the fact, the act would stay illegal as well. However, in that case it is most likely that the victim won’t complain to anyone. As a practical matter, that probably removes any chance of a trial against Harry.
But the most interesting comparison is that with the revolutionary. Revolutionaries are terrorists, their acts illegal to the extreme – until the point they succeed. At that point, the old law system breaks down. It is replaced by a new order, which will praise Joe as “Great Hero of the Revolution”.
So in the case of the rapist, success of the operation might have some limited influence on the law; in the case of the revolutionary, the success of the operation REMOVES the law, making all his illegal actions legal after the fact.

Does the expected military success of the American operation remove the international law against aggressive warfare, just as the success of a revolution removes the old system? If not, what power does international “law” have left against superior military power?
One might call for a “realistic” view of international law. If America is not going to obey the UN Charter and no other nation has the military power to do anything about it, then the interdiction of aggressive warfare in the UN Charter is not law anymore as far as America is concerned.
That would mean that the expected American military success in Iraq would have changed the law just as the success of a revolution makes heroes out of terrorists.
The advantage of this view: There is not much sense in pretending something is law if there is no real chance that it will actually be enforced. Law should be more than a dream. Law needs to rule. Powerless law is no law at all, in a realistic view of things.

I don’t believe that winning against Iraq is the equivalent of a revolution removing the UN Charter.
International law is different from national law. The reason Iraqi law under the old regime had any power was the military force at the base of that regime. Which has collapsed. So the American victory is equivalent to a revolution as far as Iraq is concerned. It is a revolution with outside military means.
However, the reason international law has any power is different. International law is based on treaties. Treaties are contracts between states. The power of these contracts does not end with a change in government in one of these states.
The power of the interdiction of aggressive warfare would end if most other countries followed the American example. If everyone else would start merrily waging “preventive” wars with dubious reasons and no legitimacy under the UN Charter, the Charter would indeed become irrelevant. That would be the equivalent of a revolution. A world-wide revolution, that is.
But we are not there yet. Actually, most countries prefer the rule of law to the rule of pure power. The Bush government has isolated America in world opinion, by committing the mother of all material breaches of the UN Charter, but not yet succeeding in blowing up international law completely.
This is a practical view. The war was illegal. And the occupation following it is illegal as well, and must be ended immediately for that reason. Nothing changed.

Posted by Karl-Friedrich Lenz at April 10, 2003 04:06 PM | TrackBack