When governments go to war, invariably they justify their use of force. This use of justification can spur debate both internationally and domestically. Some writers have claimed that the pronouncements on using force generate a politics of justification with a number of effects at the international and domestic level. (See, e.g., Goodman, Schachter, and Finnemore). Others have claimed that this talking about international law leads to the embedding of international legal rules in domestic society. (See, e.g., Cortell and Davis, Checkel). For such writers, the fact that governments justify force is, in itself, an important fact, perhaps even inherently positive in terms of constraining government action. This is because such writers are working under an assumption that the embedding of norms, or what they term socialization, acts to constrain governments from using force through law. (See. e.g., Goodman and Jinks, Koh). Domestic actors are then able to use international law as a resource. It is a point of view that, simply stated, argues governments are trapping themselves into legal obligation and this will have positive effects on audiences’ ability to challenge the use of force. To that extent such theories rest on and propagate a form of progress narrative.
The aim of my recently published monograph, The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law (Oxford University Press, 2013), is to challenge the progress narrative by refining and reorienting the analysis. It acknowledges the basic premises of the literature: that international law has domestic impacts, and there is, as a matter of fact, a form of politics which emerges from legal justification. The book seeks to demonstrate that this literature needs richer contextualization to reflect the complexities involved in such a politics of justification. By conceiving of international norms as objects or abstract entities, without acknowledging how they are also a language, or perhaps more appropriately a discourse, theorists have so far not acknowledged the manipulability of justification. Nor do current theories empirically trace or map the processes by which governments might become entrapped in their own legal arguments, if that is indeed the case. Attending to the context of justification, what lies behind the motivation to justify, and the nature of the politics that emerges refines our assessment of international law as it operates in and through politics.
There are three important ideas that emerge from the existing literature. The first is that the structural context in which domestic political debate takes place matters, and that the salience of norms matters. This means that where justification takes place and what it refers to—particular norms—hold a certain significance. The second idea is that discourse matters. This means that the how of justification holds a certain significance. Discourse signals a change in the domestic context and a shift in the relationship between politics and the international norms being discussed. Finally, there is the claim that legal justification can create ‘blowback effects’ that constrain government actions and, in the extreme case, can limit the incidence of war in world politics. Blowback refers to the situation ‘in which the imagery and justifications that leaders use to build support for their policies at one stage of hostilities constrain their actions at later stages’. This literature claims that domestic actors can use international law and legal argument as resources generating discourse on norms which will increase the norms’ salience and create blowback effects. The literature suggests that, in doing so, international law can become part of the domestic structural context and the saliency of international norms is enhanced. The consequence of this is that these norms become embedded in domestic society, which has an international and domestic effect. Both these effects are termed ‘socializing’ states to international legal norms, whereby actors ‘internalize images and form collective beliefs about the situation based on the way the dispute is framed’.
This book critiques and enriches these theories on the relationship between law and politics through an empirical analysis of two case studies of justification focusing on British discourse: the Suez Crisis of 1956 and the lead up to the 2003 invasion of Iraq. The book demonstrates that the politics of justification and its creation of blowback effects need a thicker description to give an account of what this politics looks like. How does international law operate in practices of justification? What are the various processes at work and which actors engage in these processes? Who holds the greatest legitimacy or claim to legitimacy in these contests? How does justification relate to wider claims to legitimacy and authority? What are the outcomes of this politics? By mapping discourse in these two case studies, the politics of justification is revealed as much more complex, subject to myriad effects and processes, and results in both positive and negative outcomes in terms of constraint on government action.
Instead of retreating to international law as a strategy for contesting government policy or constraining the use of force, perhaps there is a greater potential in a return to the political, and to the politics of international law, to challenge the management of opinion and the distribution of power reflected in government justifications of force. That is not to say that international law cannot be a force for constraint, but a strategy of returning to politics would recognize the dangers of taking for given the progress narrative of so many current accounts of international law’s operations. Paying attention to how legal justifications seek to co-opt and rein in challenge allows us to pause, to reflect upon the limits of ‘legalization’, and consider the wider range of forces that animate the politics of justifying force, and indeed the politics of governing in the contemporary world.