Discourses of Power and Normativity
Ordering the International via War Justifications
We would like to thank the contributors as well as the editorial team at Völkerrechtsblog, and particularly Sué González Hauck, for putting together this thought-provoking symposium on “The Justification of War and International Order. From Past to Present” (hereafter: “The Justification”). As editors of the book, we are grateful for this opportunity to highlight some of the book’s main ideas and to respond to some of the comments and suggestions made by the contributors to this symposium. Your critique and suggestions will feed into our future publications. Given the wide range of perspectives in our book, we do not claim to speak for all of our authors. In what follows, we focus on two core observations: 1. war justifications can be understood as a discourse on ordering the international, 2. this discursive relationship is driven by norms and power.
Neglected Discourses: The Justification of War as a Struggle for International Order
As Wouter Werner pointedly puts it in his stimulating contribution to this symposium, our book basically revolves around two main phenomena: (a) the universally recognized need to justify war or the use of force; (b) the functioning of the justification in specific cases as a source for ideas about international order more broadly. The basic observation that the history of war is also a history of its justification is obvious but neglected. In our view it suggests that discourses of justification and international order are co-constitutive: War justifications shape international order and are being shaped by it. The contributions to the book specify and partly challenge this dialectic linkage which we present as a genealogy in order to identify continuities and changes in the way in which the justification of war and the formation of international order interact. This endeavour is not just about history, but about political consequences up to the present day, as Parvathi Menon underlines in her compelling review.
As Wouter Werner highlights with reference to Anuschka Tischer’s chapter on early modern war justifications in Europe, we would like to contribute to filling the gap between normative theory and political practice: There is a plethora of magnificent works on ‘just-war’ theory or, speaking more broadly, on theories of war and peace. Studies dealing explicitly with the political practice of justifying the use of force as it relates to international ordering, however, are rare. The historically constant references to norms in political practices of legitimating violence represent significant sources that deserve more scholarly attention. However, in dealing with this analytical asymmetry we do by no means demote theoretical analyses to second class. Rather, we argue in favour of a more balanced relationship between dealing with conceptual and practical approaches to war and order. This includes taking war justifications seriously as communicative actions ordering the international.
A False Dichotomy: The Normativity of Power and the Power of Normativity
In doing so, we argue, first of all, against Realism: The assumption that war justifications are mere lies, empty ‘propaganda’ (Grewe 2000, at 531) not worth the ‘scrap of paper’ they are written on, is a thesis that is still popular with Realists of all colours from Carl Schmitt to Wilhelm Grewe to Jack Goldsmith and Eric Posner. This thesis may be seductive because it seems to recognise the true motives behind justifications of war, which supposedly are ignored by ‘reality-blind friends of peace’ (Grewe 1985, at 21). In one of his much-cited formulations, Carl Schmitt said: ‘Whoever invokes humanity wants to cheat’ (Schmitt 2008 , at 54).
As has been sufficiently demonstrated, this view underestimates the complexity of the relationship between normativity and power. Communicative practices such as war justifications are not ‘cheap talk’ just as reference to law on the domestic scene is not simply ‘cheap talk’ in spite of ubiquitous attempts by political and ‘private’ actors to manipulate the law to their advantage and the difficulties of courts to sort this out (see among many the respective observations of Walter Benjamin). In all discourses involving law, utopia and apology coalesce: Indeed, as Wouter De Rycke reminds us in his pointed and well-written critique of our approach, the ‘words of the powerful need to be taken with a grain of salt.’ As we state in our introduction, justifications of war are often built on lies and serving as apologies for belligerents who are in fact pursuing political interests that may contradict the norms they refer to. No one would dispute that.
However, this is not the end of the story – but rather its beginning: In our introduction, we refer to German historian Konrad Repgen. As he was searching the files of the National Library in Munich in winter of 1984 for declarations of war, a US-American colleague told him ‘with the sympathetic, sad look of a neurologist’ that war manifestos ‘contain nothing but lies’. Repgen (1985, at 19) answered:
‘For exactly that reason I want to study them. (…) These texts amount to pleas which supposedly use a number of recurrent arguments for the justification of the use of force. If this proves to be correct then we should be able to generate a fairly complete compilation of these arguments. (…) We would thus be able to construct a pattern which would enable us to discover and describe the particular as it relates to the general without taking refuge to whatever is fashionable at a certain time.’
We agree with Repken. What is striking to us is that even one of the best-known German personifications of Realpolitik, Bismarck, felt that he should justify the use of force with reference to universal norms. Why should he have done that? Because he was shrewd and all others where dim-witted? Certainly not. The question here is not whether a person lies about his/her true motives but why such a person should make the effort to justify what he/she is doing in terms of certain norms. The observation of this practice can serve as a source for de-constructing the normative frame of reference around which international politics converge and the changes that occur over time in this respect. Adding more historical context to the analysis corroborates this finding: In his memoirs, Bismarck praised himself for having circumvented the European Concert of Great Powers – which at the same time underlines his awareness of the political and normative authority the Concert had (thus, also strengthening the finding that liberum ius ad bellum is a myth in the History of International Law and International Relations).
Of course, states(wo)men are always tempted to instrumentalise norms for their respective political purposes. However, if international norms were regarded as irrelevant for decision-makers, the reference to them would be futile. This is precisely why justifications of the use of force are so interesting for empirical analysis. Actions may speak louder than words, but words themselves are powerful actions, as Martti Koskenniemi reminds us and as the mobilization of chauvinistic enthusiasm for fighting it demonstrates. There is no fundamental contradiction between action and words. To us, the opposite seems to be right: Words co-constitute actions by making them meet with orders of knowledge and norms. In this sense, words indeed come to bear as deeds by generating them.
Continuity, Contingency and Change: A Genealogy of Plural Perspectives
As Claire Vergerio rightly observes in her highly interesting and concisely argued review, the theoretical argument that we unfold in our introduction is clearly rooted in constructivist arguments (besides critical theory). These arguments have emerged especially, but not only in (International) Political Theory and International-Relations Theory in the last 30 years. More specifically, as can be seen in the works referred to in our introduction, we as editors move both on critical and discourse-theoretical terrain, which is particularly influenced by our Frankfurt context. While we are in principle very sympathetic to Vergerio’s well founded call for more IR-theory exegesis (which we develop in a forthcoming publication within the narrower IR-discourse), we found a more implicit approach more appropriate for the transdisciplinary framework of this book. This decision, moreover, may also have been due to the fact that a reference to Constructivism to counter Realism might by now perhaps be quite established and unsurprising – a rather ‘obvious go-to analytical toolkit for IR scholars working on international law’, as Vergerio correctly states.
But there is another reason: While many of our authors stick to our theoretical approach, others follow different paths – partly drastically. This is also accompanied by controversies in the volume: While Thilo Marauhn, for example, argues for defending the authority of Art 2 (4) UN Charter from a perspective of international law, Siddharth Mallavarapu recalls the intertwining of law with imperialism and justifications for war, and Chris Brown (at 436), from a perspective of “just(ified) war”, calls the international legal order regulating the use of force a ‘dead letter’. While Anuschka Tischler and Isabel V. Hull for good reasons criticize the strong focus in the History of International Law on legal theory, other authors in our book such as Miloš Vec, Beate Jahn or Anthony Lang, Jr., for their own good reasons, defend this focus or link political practice to legal theory. While Oliver Eberl draws a critically reflective picture of Immanuel Kant in the context of the French Revolution, B.S. Chimni deconstructs liberal thinking on legal progress in the context of the First World War from a TWAIL perspective. Our own approach is criticized in the book: Benno Teschke argues in his chapter (at 110) from a materialist perspective that ‘granting analytical priority to the self-justifications of war (…) externalizes the prior question of the fundamental presence of power politics in early modern Europe.’ We found this juxtaposition of arguments within a common frame of reference particularly fruitful.
Though we avoided theoretical streamlining, the book entails several core themes and coherent narratives which are told over interrelated chapters, as the reviewers highlight. One of our most important narratives is the deconstruction of Schmitt’s thesis of a turn towards the ‘non-discriminatory concept of war’ (nicht-diskriminierender Kriegsbegriff), for which especially the chapters by Anuschka Tischer, Hendrik Simon, and Isabel V. Hull are important. Another central concern of the book is the longevity of imperialism and colonialism in the discourses of war justifications. Parvathi Menon in her review brings this argument succinctly to the point: ‘History reminds us that war justifications have long facilitated imperial domination, the legacies of which continue to this day.’ Since we as editors have a Western (and especially German) perspective on the history of violence and normativity, it was important to us to include postcolonial perspectives in every single part of our book. One exception is Part V, in which the narrative of the rise and fall of ‘liberal peace’ is confronted in a critical manner with more recent Western discourses of war justifications. Part VI therefore is a direct response to Part V.
Finally, a word on historical narratives such as continuity, ‘structures of repetition’ (Wiederholungsstrukturen, Reinhart Koselleck), and progress, which are examined (critically) in our book: Our approach is not only directed against realist shortcuts to explaining justifications of war. It is also directed against overly optimistic, teleological narratives of progress in the genealogy of the international ‘order of justification’ regulation the use of force. ‘Progress’ has not only itself always been a narrative which served the discrimination of the ‘barbaric’ other. The history of force and international order is also marked by a continuous dialectic of domination and emancipation. It is this nexus in which our book’s analyses operate. The analyses in our book support the observation that throughout history norms have been invoked in the decision to go to war. From this we draw hope that the struggle over norms entails not only a struggle for power but also a struggle for emancipation. This hope may be frail but it is not necessarily foolish.
Outlook: Further ‘Rethinking the Justification of War’
As Wouter Werner argues in his review, an endeavour such as “The Justification” is always ‘incomplete, as to leave room for the reader to add and fill in’. And as Claire Vergerio recalls, ‘there simply remains much more to be explored.’ We could not agree more. As the reviews in this symposium have forcefully argued, there are blind points that would be interesting for further discussion: For instance, Parvathi Menon uses the example of the Palestine-Israel Conflict(s) to show how much past and present are interrelated in these complex debates. We agree with Wouter Werner that actors such as international courts and tribunals as well as internationally constituted groups of legal experts would make a great addition to our approach (and also the role of legal advisors on the conformity of military action to the ius in bello). Claire Vergerio makes an important point when she writes that non-state actors need more attention in this context, too. Our approach – apart, perhaps, from the contributions by Arnulf Becker Lorca, Lauren Benton, and Axel Heck/Gabi Schlag – is indeed largely state-centric. We are also sympathetic to De Rycke’s call for more historical contextualization of war discourses (which especially Hendrik is eager to live up to in his forthcoming publication). As we state in our preface to the book, it was not our intention to make a ‘claim to present the final or second to final word in this matter.’ However, the contributors to this symposium have reaffirmed our hope that our book will contribute to further ‘rethinking the justification of war’ (Werner). For this we thank them again.