A Chance to Reaffirm the Law of Nations

This article appeared in the Christian Century, November 14, 1990 pp. 1054-1055, copyright by the Christian Century Foundation and used by permission. Current articles and subscription information can be found at www.christiancentury.org. This material was prepared for Religion Online by Ted & Winnie Brock.


During the cold war, U.S. adherence to the law of nations and its institutions waned, but Iraq’s invasion of Kuwait afforded an opportunity for the U.S. to reassert that adherence.

When the cold war ended, we Americans found ourselves in an identity crisis. As James Wall noted recently ("Identity Crisis for Policymakers," October 17) , having defined ourselves as militant anti-communists for so long, we don’t know how to conduct ourselves now that communism is no longer a threat. The invasion of Kuwait tempts us "to define ourselves over against an enemy rather than by our ideals as a nation."

However, policymakers do have a tradition to draw on when pondering an American response to the Mideast crisis: the law of nations. This idea, enshrined in our Constitution, was inspired by the Judeo-Christian vision of an impartial tribunal that would allow states to "beat their swords into plowshares," as Isaiah pictured it.

Senator Daniel Patrick Moynihan’s new book, On the Law of Nations, shows that such law was "the first principle of the American legal system." The Declaration of Independence referred to it as "the Laws of Nature and of Nature’s God"; the Constitution explicitly calls for it: "The Congress shall have power. . . To define and punish . . . Offenses against the Law of Nations" (article I, section 8) The Supreme Court has declared that "international law is part of our law," which supports Moynihan’s contention that it "is not higher law or better law; it is existing law." American leaders labored hard in the earlier part of this century to enshrine these principles in the Covenant of the League of Nations and the Charter of the United Nations. Generations of theologians and religious leaders also supported institutional embodiments of the law of nations, including many writers in the Christian Century. They were convinced that the impartial administration of international law could resolve conflicts and ultimately rid the world of the scourge of war.

Religious proponents of international law could draw on the prophets for biblical support: Amos, Hosea, Micah and others discerned Yahweh’s law as both impartial and international, striking against the arrogant pretensions of all people and nations who violate human rights in the belief that God is on their side. Isaiah envisioned Israel’s mission as entailing in part the mediation of conflict among nations under impartial international law; a world court in Zion, judging by truth and justice under due process, would enable warring factions to "beat their swords into plowshares" that is, to give up conflict and concentrate on economic development. This image appears on the walls of the United Nations building in New York.

Moynihan considers the erosion of the American commitment to the law of nations a consequence of the stalemated cold war. In the past decade particularly, cynicism about the International Court of Justice and the UN has become so pervasive that millions of Americans are no longer aware of the crucial role that the concept behind these institutions played in their own heritage: "In the annals of forgetfulness there is nothing quite to compare with the fading from the American mind of the idea of the law of nations." The invasions of Grenada and Panama and the mining of Nicaraguan harbors flatly violated American agreements under international law. Despite the fact that the U.S. made a formal commitment to the International Court in 1946, the Reagan administration withdrew from compulsory jurisdiction in 1985 when the harbor-mining incident was under review.

The next year the court declared that the U.S. had violated international law in a variety of ways in its actions toward Nicaragua -- the "first time in the history of the Court that the United States was found in violation of international law in a matter involving the use of force against another nation," Moynihan notes. He is properly indignant at this abandonment of long-standing commitments: "In two centuries of national existence no more pusillanimous act was ever contemplated, much less carried forward, by American officials responsible for our relations with international tribunals." The zealous components of our American ideals had triumphed over what I would call the tradition of "prophetic realism," our commitment to coexistence under law. Now that the anti-communist crusade is obsolete, those misguided policies in Central America and elsewhere have no further justification. There is now an urgent necessity to recover the legacy of the law of nations.

The invasion of Kuwait presents the first opportunity since the collapse of the cold war to reassert American adherence to the law of nations and its institutions. The astounding international support in condemning this invasion reflects not only the sea change of the end of the cold war but also the awareness that if such aggression is not challenged, no other nation can feel secure. The history of the failure to defend the law of nations in the League of Nations in 1931 (the invasion of Manchuria) and in 1935-36 (the invasion of Ethiopia) is recalled in terms of the most disastrous consequence -- World War II. One does not have to equate Saddam Hussein with Adolf Hitler to understand the cogency of these historical parallels and the crucial significance of the present crisis. Despite our own complicity in leading Iraq to believe there would be no significant response to its invasion of Kuwait, and regardless of our defense of economic interests, the overriding concern of religious communities should be to ensure the viability of the law of nations.

This concern should also govern our attitude toward the broader issue of the Arab-Israeli conflict. Now that a measure of impartiality is available in the October 12 UN resolution condemning the violence on the Temple Mount, it is possible to insist on compliance with past Security Council resolutions and thus move toward settling the Arab-Israeli conflict. The foundation of Israel, after all, was in a UN decision of 1948, and every war fought in the area since then has expressed a refusal to accept that decision. An evenhanded settlement, enforced by the Security Council, would solidify the authority of the law of nations and justify allegiance to it by Muslims and Israelis who have decried past UN decisions for their partiality. It would incidentally also deprive Iraq of the last shred of justification for remaining in Kuwait.

Drawing on Isaiah’s vision, we should pursue the following strategy: First, while patiently supporting the embargo against Iraq, we should begin placing our armed forces in the Middle East under the Military Staff Committee of the Security Council, as described in chapter VII of the UN Charter. This would allow the Soviets to participate in any military action and would resolve the question of responsibility for military engagement. The U.S. does not have intrinsic enmity toward Iraq and has no justification for unilateral military action. Precipitous action that would pit the U.S. and a few allies against Iraq should particularly be resisted.

In the event that the embargo does not force Iraq to remove its forces from Kuwait, a decision to take military action should be made by the Security Council, requesting assistance from all UN member states. When such a request is made, Congress should make a deliberate decision to comply, so that military action is not a unilateral decision of the executive branch. The nations involved would therefore consider themselves agents of the law of nations rather than merely allies of the U.S. In an effort to avoid the mistakes of recent military engagements, the religious community should insist on adherence to the principles of deliberate, lawful action following the principles of the U.S. Constitution and the UN Charter which express the law of nations.

Any military action against Iraq should involve global military power, working in tandem with Iraq’s neighbors. The amassing of such a military force on the Syrian and Turkish borders, in addition to the forces available in Saudi Arabia, would be a strong deterrent that might lead to a peaceful settlement. While standing up against an unpopular United States may have significant propaganda value, encouraging Iraq to continue resistance, global pressure would be more effective. The symbolic action by the entire UN would be a much better enactment of the principle of the law of nations than the U.S. and a few allies playing the role of global police officers.

While we take this action in regard to Iraq, we should support an impartial settlement of the Arab-Israeli issues, including the proper provision for a homeland for the Palestinian people. We should be prepared to take the same steps in support of the Security Council as we take in the Iraq crisis. The complication of dealing with this issue simultaneously should be accepted as a unique opportunity to demonstrate the potential of international law in the post-cold-war era.

The leadership of the United States should tackle the complex political tasks of creating the institutions to enforce the law of nations in the future. We should promote a permanent Nuremberg Tribunal capable of trying individual offenders against the Geneva Conventions and the UN Charter. This would remove the necessity for national vengeance against Iraqi officials; they would be dealt with under international law by an impartial tribunal.

We also should begin to reconfigure U.S. military power to fit the needs of future Security Council engagements. This means abandoning the expensive legacy of unilateral military outreach and reliance on weapons of mass destruction and espionage. The serious budgetary crisis makes this reconfiguration more urgent.

We should support the recent decision to bring up to date our dues to the UN, which are several years in arrears, and we should place ourselves once again under the jurisdiction of the International Court of Justice. This will serve to recall our foreign policy to its historic foundations of constitutional restraint and lawful process, and should eliminate the possibility of future invasions like that of Grenada or Panama.

Unlike many religious people in the 1920s and ‘30s who held out utopian hopes for the institutions of the law of nations, we should not expect to eliminate conflict in the post-cold-war era. We may face the tragic necessity of imposing international law by force of arms, but we can do so in the hope that once the principles of Isaiah’s vision are enforced, they will be voluntarily accepted. Our own national history gives credence to such a hope: in the wake of our Civil War no state even dreams of resisting the decisions of Congress and the Supreme Court with force. For those of us who believe that the God of history stands behind the Isaianic vision, there is reason to hope that "in days to come" a nonsectarian form of that tribunal will be sufficiently established in justice and equity that nations will not have to "learn war any more.