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Natarajan, Usha -- The Civilizing Mission and the "Gentle Civilizer of nations" Third would approaches to the Iraq War and the Rule of Law [2007] IHLRes 7 (28 June 2007)

Last Updated: 19 November 2007

ANZSIL 2007

Restoring the Rule of Law in International Affairs

28 – 30 June 2007

The civilizing mission and the "gentle civilizer of nations": Third World approaches to the Iraq war and the rule of law

Usha Natarajan^∗
PhD Candidate, College of Law, Australian National University.

I INTRODUCTION

Before commencing discussion of TWAIL and the legality of the Iraq war – an investigation that has, for me, raised as many questions as it has provided answers – it may be useful to briefly outline my background and how I arrived at this topic of study.

My acquaintance with TWAIL has been recent but definitive. Being an international lawyer of South Asian origin, I sometimes wonder if there was a certain degree of inevitability in my feeling an affinity for this approach above all others. While I spent my early childhood in various parts of Asia, my parents eventually immigrated to Australia in my teenage years. Growing up in Melbourne, but with periodic returns to India to visit relatives, it was impossible not to wonder about the disparities in quality of life between the West and the Third World. I finished high school with a vague idea that the problems of global injustice needed a global solution, and therefore I would study international law in order to learn more about justice, and aim to work for the United Nations because it was the only organization I knew of truly global scope. After some years of studying international law at undergraduate and master’s level, and some years working for the UN and its agencies, I came to the realization that global injustice was not quite as straightforward a problem as I had once imagined. Its causes were not easily attributable and any solution not easily formulated. The opportunity to undertake a PhD with Professor Charlesworth at the Australian National University provided the ideal means to investigate these issues further.

When I commenced my PhD, the Iraq invasion had been underway for one and a half years and it continued to fascinate international lawyers more than any other legal issue. I concluded that therefore this war must be of superlative importance, so I would study it with a view to understanding more about the discipline as a whole. While I had never heard of TWAIL, I had some knowledge of postcolonial theory through my bachelor’s degree in Art History, and suggested tentatively to my supervisor that this may be a useful approach to studying the Iraq War. She then introduced me to TWAIL scholarship towards which I felt an immediate sympathy: these scholars were articulating the frustration and grievance that I – and probably many peoples of color – feel with the international system. And these scholars were identifying reasons why the international legal system did not provide justice for the Third World despite firmly vowing to do so. This was obviously the methodology for me!

So I undertook to apply some of TWAIL’s analytical tools to studying the legal debate over the Iraq war. Immediately there were benefits to using this methodology. I could see that, despite the existence of vast amounts of scholarship on the Iraq issue, many issues of concern to the Third World were consistently overlooked. The first part of my presentation will briefly discuss some of these issues.

As my research continued, questions were also raised about the limits of TWAIL methodology in gaining an understanding of international law. The second, and longer, part of my presentation will focus on this issue. While I remain convinced of TWAIL’s vital role in international law scholarship and am in sympathy with its broad political aims, I would nevertheless like to explore whether there are limitations to this approach. I have reached no conclusion as to the limitations of TWAIL and merely raise these issues with a view to discussion.

II A THIRD WORLD APPROACH TO DEBATING THE LEGALITY OF THE IRAQ WAR

For my PhD thesis, I have divided my investigation into four parts, based on the four justifications put forward by the US and its allies for the Iraq invasion. First, it was argued that the 2003 Iraq war was authorized by 1990 Security Council resolutions authorizing the first Gulf War. The 1990 authorization allegedly revived when Iraq ‘materially breached’ the ceasefire requirements of the first Gulf War. Second, it was argued that the invasion was undertaken in self-defense because Iraq and its weapons of mass destruction posed a threat to the US and its allies. Third, it was argued as humanitarian intervention to provide the Iraqi people freedom from an oppressive and entrenched dictatorship. Lastly – and not strictly a legal justification – Iraq was presented as part of the larger global ‘war on terror’ and the invasion aimed to neutralize the alleged threat of terror emanating from Iraq.

Debate over the legality of the Iraq war has focused on the legal merit of these four justifications. I organized my investigation around these justifications with a view to assessing what a Third World approach could bring to the existing debate about Security Council resolutions, preemptive self-defense, humanitarian intervention and the notion of a ‘war on terror’. I will not go into detail today as to each of these justifications but, rather, will identify some of the broad cross-cutting themes that emerged with regard to all four legal arguments when I attempted to take a Third World approach to them.

One of first things that struck me was that taking a Third World Approach reconceptualized the debate by shifting focus to broader legal issues, rather than focusing solely on the narrow justifications made. For example, when considering the argument for revival of Security Council resolutions, while existing debate focused on issues of interpretation and jus ad bellum, a Third World approach seemed to demand a focus on the argument’s underlying assumptions about Third World sovereignty. The Coalition argument assumes that the authority of a Security Council resolution would in some way legitimize invasion, regime change, extensive occupation and nation building in Iraq. It is difficult to conceive circumstances where argument for such extensive intervention could be earnestly made with regards to a Western nation, even if the nation had repeatedly violated international law. The Coalition argument seems to assume that Iraqi sovereignty is in some way less inviolable than Western sovereignty.

A Third World Approach seemed to push me beyond the confines of debating the merit of Coalition justifications and consider the legitimacy of invasion in a broader sense. If a Security Council resolution was achieved in 2003, the legal requirements would have been met and invasion of Iraq would be legal. But surely from a Third World point of view, forcing a Security Council resolution through political or economic pressure would not make the invasion any more legitimate. These broader issues of illegitimacy and disparities in power are camouflaged by the disciplinary fiction of a system of sovereign and equal states. As such, despite the existence of vigorous legal debate over the justifications, some legal aspects of concern for the Third World are consistently overlooked because foundational disciplinary myths remain unquestioned. A Third World approach to the legality issue does not take legal concepts and terminology at their face value and urges the deconstruction of layers of meaning and examination of the underlying premises of the mainstream legal debate.

I mentioned earlier that I chose to focus on Iraq because so many international lawyers saw the war as a seminally important for the discipline. There was a feeling that law (especially jus ad bellum) was at a point of momentous change. When I began to apply a Third World approach to the war, undercurrents of continuity emerged alongside moments of superficial change. For example, the assumption that Iraqi sovereignty is in some way less sacred than Western sovereignty is not a novel one. TWAIL scholars like Antony Anghie have persuasively argued that a distinction between Third World and Western sovereignty has always been assumed by international law and that this distinction has played a central role in the development of the discipline. The mainstream debate has frequently perceived the Coalition’s arguments as in some way novel, defiant or rebellious, aiming to significantly transform international law. But a Third World approach helps to reveal links between the Coalition’s arguments and enduring structural bias in the discipline. The Coalition’s arguments and the international law discipline have some shared assumptions about culture and race inherited from centuries of colonization. And in this sense, from the point of view of Third World peoples and states, the invasion was not necessarily a seminal moment for the discipline at all, but more a case of plus ça change, plus c’est la même chose.

Using a Third World approach helped highlight the role of cultural difference in shaping international law, and gain an understanding of the way in which legal discourse conceals this role behind a façade of universality, cultural neutrality and equality. A Third World approach urges questioning the objectivity of the law, and assessing how the law participates in shaping perceptions of legitimacy and morality by highlighting certain aspects of reality and camouflaging others. For instance, in debating the legality of the Iraq invasion, there has been little attention given to the role of international law in constructing the circumstances that made the invasion viable, and perhaps even inevitable: what were the consequences of the first Gulf War, the decade of UN Sanctions, the ‘No-Fly zones’, the Oil-for-Food programme etc in precipitating the 2003 invasion? The ‘dark side’ of international law has remained largely unexamined, but the use of a Third World approach brings attention to the disciplinary discourse as a tool through which legitimate exercise of power can be asserted, denied and negotiated.

III LIMITATIONS OF THE THIRD WORLD APPROACH?

One of the first problems I became aware of in my attempts to apply TWAIL to the Iraq war was the risk of engaging in relentless criticism of the West. Falling into this trap would not only make my approach inaccurate and unconvincing, but could contribute to entrenching a worldview of dualities – West and East, Christian and Muslim, white and black. I would then become part of the problem of perpetuating misleading dichotomies, whereas the broad aim of postcolonial theory seemed to be exactly the opposite: to reveal the illusory nature of these distinctions and break them down. In using the Third World approach, there is a risk of perpetuating a mythical Third World identity, the purity of which does not seem to exist outside of the essentializing modes of thought that bring it into being. To be powerful, TWAIL’s form of critique must be used to break down false identities rather than entrench them. Otherwise the insistence on the existence of a distinction between the Third World and a First World becomes to some extent a self- fulfilling prophecy.

This seemed to be a limitation that could be overcome as long as I took sufficient care not to simply reproduce in reverse the patterns of Western subordination that I was attempting to combat. However, other tensions and inconsistencies began to emerge that seemed an inescapable part of using the Third World approach. Pahuja has pointed to the tension in the work of TWAIL scholars between criticizing the international law discipline as a tool of imperialism but, at the same time, being reluctant to abandon the discipline altogether as hopelessly imperial in nature. There seems to be an underlying faith that engagement with disciplinary problems is not futile. Perhaps this is because international law is not wholly imperial in nature. The discipline contains a tension between an imperializing tendency and an anti-imperial quality that coexist. Anghie and Chimni, when formulating the distinction between TWAIL I and II, stated that TWAIL I scholars had faith that international legal argument could be harnessed for betterment of the Third World, whereas TWAIL II scholars showed how the discipline itself is imperial in nature. But TWAIL II scholars still seem to believe that there is a purpose and importance in engaging in disciplinary critique, perhaps evidencing an implicit faith in the anti-imperial potential of international law. In this respect, perhaps there may not be a distinction between TWAIL I and II scholars.

As part of the PhD process, I underwent periodic examination of the progress of my thesis, and at one of these sessions I was asked whether TWAIL really is a distinct approach to international law. After all, TWAIL shares analytical strategies with other critical approaches to international law. Other critical approaches also search for contradictions and tensions in disciplinary logic as evidence of potential disciplinary blind spots. What is it that distinguishes TWAIL from these approaches? The distinction seems to lie in its focus on the legacies of colonization and searching for contemporary imperial parallels. As such, its distinguishing characteristic is a political commitment to considering disciplinary issues from the point of view of the Third World alone. This political commitment to the Third World inevitably leads to a narrowing of focus, ignoring disciplinary impact on other disadvantaged groups. As such, does a Third World approach need to be understood as occurring from a particular political context and harboring a particular political agenda, rather than as a more broad or general critique of international law?

For example, my investigation was particularly concerned with the impact of the Iraq war on the Third World, but the Iraq invasion inspired widespread protest – in fact, the biggest demonstrations in history – in both First and Third World states, amongst groups and individuals with vastly divergent interests. Is TWAIL helpful in explaining this phenomenon or does the narrowness of TWAIL’s focus obscure larger patterns of subordination and domination that may stretch beyond and across First and Third World distinctions?

While I was at times concerned that TWAIL may not pick up on some broader international law trends, in another sense I was also concerned that the notion of a ‘Third World’ may be too broad to pick up on smaller patterns. Does TWAIL allow for difference between geographical regions and their distinct historical and contemporary interactions with international law? One thing that immediately struck me when I first learnt about TWAIL was that – guessing from their names – a disproportionately large number of TWAIL scholars seemed to be South Asian (or of South Asian origin). Perhaps because these nations were colonized by Great Britain, South Asians were more likely to be familiar with English, and with Anglo-Saxon ways of reasoning and expression. Especially in the postcolonial era, this culture has dominated the discipline more than that of continental Europe, and familiarity with the dominant discourse probably meant greater likelihood of gaining access to the mainstream disciplinary forums, international organizations, academic organizations and journals, etc. What are the repercussions of some points of view perhaps having a greater voice in comparison with others, both within the discipline as a whole and within the TWAIL movement?

TWAIL focuses on disparities of power between Third World states and Western states, but does this approach place enough emphasis on the increasing disparity in wealth and power within states? TWAIL runs the risk of subscribing to a unitary conception of the Third World, potentially privileging the interests of Third World states over citizens’ rights and obscuring the consequences for subalterns within the Third World. For instance, a Third World approach to the Coalition argument for humanitarian intervention in Afghanistan and Iraq is likely to reveal the illegitimacy, inconstancies and imperial tendencies of these interventions. But in condemning these interventions, is a Third World approach protecting the sovereignty of Third World states at the expense of human rights of Third World peoples? Some advocates of humanitarian intervention have claimed that the intervention has given Iraqis and Afghans an opportunity for self- determination that they could not otherwise have achieved of their own accord. In spite of all the short and long term negative consequences of intervention – war, occupation, economic and political disempowerment, etc – will Afghanis and Iraqis still be better off in the long term when compared with if the intervention and regime change never took place?

Anghie and Chimni have asserted that one of the distinguishing characteristics of TWAIL II is that it privileges the interests of Third World peoples over states, and that it may sometimes be in the best interests of the peoples to protect the sovereignty of the Third World state, and sometimes it may not. But has recent TWAIL scholarship really reflected such a change? How can TWAIL identify and speak for the best interests of Third World peoples, especially in cases where interests may be in opposition to the interests of Third World government elites, within a disciplinary discourse that still largely demands discussion in terms of state interests?

Many of these issues raise questions as to what exactly the ‘Third World’ refers to. There has been substantial TWAIL scholarship on the definition and use of the terminology of the ‘Third World’. There are patterns of past and present subjugation that unite Asia, Africa and Latin America. These regions not only share a past of colonization but present-day underdevelopment and marginalization. The notion of a ‘Third World’ also remains a useful and essential political strategy for undertaking collective resistance

to hegemonic politics in a unified way. But, as the aforementioned issues indicate, the notion of the ‘Third World’ poses some problems as well. Distinctions between the West and the Third World have always been blurry, and are only becoming blurrier in the postcolonial globalized world as identities and personalities become more and more hybrid.

Alongside the issues of what constitutes the ‘Third World’, there is also the question of who can speak for the ‘Third World’. To what extent does the Third World state speak for Third World peoples within the international law discipline? Has TWAIL, a movement that originated in the higher echelons of American academia, been able to more authentically represent the needs of Third World peoples within the international law discipline? Have TWAIL scholars really rejected Western power over the means of communication within the international law discipline? It would seem that rather than rejecting the existing discourse, TWAIL scholars have attempted to appropriate and reconstitute the discourse for their own uses. By undertaking the latter in preference to the former, it could be argued that TWAIL scholars continue to marginalize non-Western ways of thinking about international law because there is not often engagement with knowledge about international law from Africa, Asia or Latin America.

Some of these issues are not unique to TWAIL. The difficulty for privileged and elite intellectuals to speak authentically for socially and economically marginalized peoples is an issue in many fields of intellectual activity as many academic disciplines have a tendency to privilege theory over actual experience. Distinguishing between interests of the state and interest of the peoples or individuals seems to be an issue of importance not just to TWAIL but also many other critical approaches to international law. I raise these issues with a view to initiating discussion and debate and increasing my understanding of what it means to have a Third World approach to international law.