Amy Bartholomew is an associate professor at Carleton university, Ottawa, Canada. She has a B.A. (Colorado), an M.A. from Carleton University, an LL.B. from the University of Ottawa and a Ph.D. in progress (New School for Social Research).

Her research interests include postfoundational legal and social theory from Habermas to postmodernism, theories of justice and injustice, theories and practices of human rights, the implication of multiculturalism and globalization for human rights, justice and constitutionalism, and feminist theories of law.  

Education

In Progress
Ph.D.Sociology-ABD Graduate Faculty, New School University, New York, N.Y., USA

1986 LL.B. Common Law Faculty of Law, University of Ottawa
1982 M.A. Political Science Carleton University, Ottawa, Canada
1978 B.A. Psychology University of Colorado, Boulder, Co. USA

Employment

Academic:

1993 - Present Associate Professor, Department of Law, Carleton University

1986 - 1993 Assistant Professor, Department of Law Carleton University (Tenure received 1991)

1979 - 82 Teaching Assistant, Department of Political Science, Carleton University

Other:

1989 Expert Consultant, Law Reform Commission of Canada, Review of Criminal Code of Canada, 'Sex Crimes' (Sexual assault, pornography /obscenity)

1986 Legal Policy Consultant, Correctional Law Review, Corrections Policy, Department of the Solicitor General, Ottawa

1983 - 1984 Legal Policy Consultant, Correctional Law Review, Corrections Policy, Department of the Solicitor General, Ottawa

1984 Research Assistant, University of Ottawa, Faculty of Law, Professor A. Bayefsky

1984 Research Assistant, University of Ottawa, Faculty of Law, Professor M. Bendel

1982 Researcher, School of Public Administration, Carleton University, Professors Bruce Doern and Michael Prince

1977 - 79 Social Worker, Children's Services, Columbiana County Welfare Department, Lisbon, Ohio, U.S.A.

Professional Honours

2000 - 2001 Recipient of CUSA’s teaching award June 2001. One of ten Carleton professors chosen for excellence in teaching by undergraduate Carleton University students.

1998 - 99 Nominated by Graduate Students’ Association for Excellence in Teaching Award

1993 - 94 Graduate Faculty, New School for Social Research, Prize Fellowship 1990 - 92 (Most prestigious fellowship at GF: full tuition, approximately $12,000 U.S., plus $7,000 U.S. stipend per year for 3 years).

1990 - 91 Social Sciences and Humanities Research Council of Canada, Doctoral Fellowship, awarded and declined (full tuition, plus approximately $13,000 per year for 3 years)

1989 - 90 Social Sciences and Humanities Research Council of Canada, Doctoral Fellowship, awarded and declined (full tuition, plus approximately $12,000 per year for 3 years)

1986 Ontario Graduate Scholarship, awarded and declined (approximately $12,300 per year for 3 years)

1985 Stein Rokkan Memorial Fellowship, International Political Science Association Conference, Paris, France (one of nine chosen in international competition to participate in conference as a Stein Rokkan Fellow)

1981 - 82 University of Michigan - Carleton University Scholarship, for study of Quantitative Research Methods at the University of Michigan (summer)

1979 - 82 Carleton University Graduate Scholarship

Publications

1. Refereed Scholarly Publications:

“Does a Deliberative Approach to Group-Differentiated Rights ‘Make all the Difference’?” Women and Constitutional Change edited by Alexandra Dobrowlosky and Vivien Hart (Palgrave, forthcoming 2002) 33 manuscript pages.

“Toward a Deliberative Legitimation of Human Rights” 6 Warwick-Sussex Papers in Social Theory. (2001) 5-31.

“Democratic Citizenship, Social Rights and the ‘Reflexive Continuation’of the Welfare State” 42 Studies in Political Economy. (Autumn 1993) 141-156.

“Achieving a Place for Women in a Man's World': Or, Feminism with No Class” 6 (1) Canadian Journal of Women and the Law (Fall 1993) 22-50.

“Nomads of the Present: Melucci's Contribution to 'New Social Movement Theory'” (with Margit Mayer) 9(4) Theory, Culture and Society (1992) 141-159.

“What's Wrong with Rights?” (with Alan Hunt), 9 Journal of Law and Inequality (1990) 1- 58.

2. Other Scholarly Publications:

“Should a Marxist Believe in Marx on Rights?” in The Retreat of the Intellectuals: The Socialist Register 1990 edited by Ralph Miliband, John Saville and Leo Panitch (London, Merlin Press, 1990) 244-264.

Introduction to Public Law edited by A.L. Bartholomew, D.W. Elliott, G. Goodwin-Gill, M.J. Mac Neil and J.G. Neuspiel (Toronto: Captus Press 1989, Second Edition 1991).

Introduction to Legal Studies edited by N. Sargent, B. Wright, A. Bartholomew, P. Swan, A. Hunt, B. Dawson, R. Mohr and D. Fraser (Toronto: Captus Press 1990, Revised edition 1991) (primary editorial responsibility with Sargent and Wright).

Scholoarly/Professional Activity

Plenary and Invited Lectures:

November 2000 Invited lecture, University of Sussex Social Theory Seminar, Brighton, England. “Constitutional Patriotism and Social Inclusiveness: Justice for Immigrants?”

June 1999 “Reconstituting Human Rights for the 21st Century” International Conference, University of Sussex, Falmer, Brighton, England. Invited and funded plenary lecture, “Legitimating Human Rights Deliberatively?”

November 1997 “Gleichheit in ungleichen Verhaltnissen?” (Equality in Unequal Conditions?) International Conference, Berlin, Germany. Invited and fully funded plenary lecture, “Toward a Radical Deliberative Democracy: Justice, Gender, Struggle and Rights.”

March 1993 New York University Law and Society Colloquium, New York, New York, Invited and fully funded lecture, “Mining the Unthematized Gender Subtext: Social Rights, Civil Society and Feminism.”

Major Conference Papers:

May 2002 Philosophy and Social Science Colloquium, Prague, Invited paper “Critical Theory and the Problem of Immigration: From a Liberal to a Critical Conception of Justice for Immigrants.”

August 2001 American Sociological Association Annual Meetings, Anaheim, California. Organizer of panel on “Citizenship, Social Integration and Identity: Debating ‘Constitutional Patriotism'” and paper giver “Constitutional Patriotism: Justice for Immigrants?”

November 2000 Colloquium on Constitutionalism, Exeter, England. Invited and funded participant.

August 2000 International Political Science Association Conference, Quebec City, Quebec, Canada. Invited paper “Constitutional Patriotism and Social Inclusiveness: Agonism and a Discursive theory of Human Rights.”

September 1999 Nationalism, Identity and Minority Rights Conference, University of Bristol, England. “Does a Deliberative Approach to Group-Differentiated Rights ‘Make all the Difference’?”

June 1999 World Congress on Philosophy of Law and Social Philosophy conference, “The Transformation of Legal Systems and Economies in an Age of Global Interdependence”, New York, NY. “Constitutional Patriotism and Multiculturalism.”

August 1998 American Sociological Association Annual Meetings, San Francisco, Ca., Invited Discussant, Critics of Critical Theory Panel.

June 1998 American Law and Society Association Annual Meetings, Aspen, Colorado, “Justifying Rights Democratically: Living Without Guarantees.”

June 1998 Canadian Law and Society Association Annual Meetings, Ottawa, Ontario, Canada, “Grounding Rights Democratically: Living Without Guarantees.”

June 1998 Canadian Law and Society Association Annual Meetings, Ottawa, Ontario, Canada, “Towards a Radical Deliberative Democracy: Justice and Gender.”

August 1993 American Sociological Association Annual Meetings, Miami, Fla., “Social Rights and the 'Reflexive Continuation' of the Welfare State.”

June 1993 Canadian Law and Society Association Annual Meetings, Ottawa, “The Implications of Discourse Ethics for Rights and Law.”

June 1993 Canadian Political Science Association Annual Meetings, Political Economy Section, Ottawa, “Democratic Citizenship and Social Rights” (co-sponsored by Canadian Association of Sociology and Anthropology)

1991 American Bar Association, Commission on College and University Nonprofessional Legal Studies, Litigation, Justice and the Public Good Conference, San Diego, California. Invited and funded participant on “Teaching Law and Society” panel and “Teaching about the Civil Rights Movement: Litigation and Other Strategies.”

Other Professional Activities:

Manuscript reviewer:

Studies in Political Economy
Current Perspectives in Social Theory
Harcourt Brace Jovanovich
Canadian Journal of Women and the Law
Windsor Yearbook on Access to Justice
Canadian Journal of Law and Society

Grant Assessor:

Social Sciences and Humanities Research Council of Canada, Research Grants Program, Spring 2000
Humanities and Social Sciences Federation of Canada: Aid to Scholarly Publications Programme, Summer 1999

Scholarly Work in Progress:

“Human Rights and Post-Imperialism: Arguing for a Deliberative Legitimation of Human Rights” 60 manu. pages. Submitted.

“Constitutional Patriotism and Social Inclusiveness: Justice for Immigrants?” 41 manu. pages. Submitted.

Amy Bartholomew and Jennifer Breakspear              

 [T]he transition from a nation-state world order to a cosmopolitan world order brings about a very significant priority shift from international law to human rights.  The principle that international law precedes human rights which held during the (nation-state) first age of modernity is being replaced by the principle of the (world society) second age of modernity, that human rights precedes international law.  As yet, the consequences have not been thought through, but they will be revolutionary.

                                                                                                Ulrich Beck[1]

                                                                                                Jürgen Habermas[2]

The US-led war of aggression against Iraq displays, for at least the fourth time since 1990 (the first three occasions being the Gulf War, the NATO intervention in Kosovo and the American attack on Afghanistan), the ‘revolutionary’ nature of the developments afoot in the transition from the ‘first’ to the ‘second age of modernity’. Yet any transition that may be underway is neither an historical necessity nor a clean break with the past.  Rather, it is shaping up to be a contradictory and contested set of processes, since the politics of the ‘first age of modernity’ are intertwined with those emerging in its ‘second age’. In emphasizing that cosmopolitanism has brought with it the ‘military humanism of the West’, Beck saw it as ‘founded on an uninterrogated world monopoly of power and morality’. But in making this argument he seemed to run together three distinct stances toward the relationship between international law and human rights: noninterventionism, cosmopolitanism, and what can only be called imperialism (however ‘benign’) – i.e. a situation where a self-appointed hegemonic power ‘defends’ human rights abroad by engaging in ‘military humanism’.

       We wish to suggest that justifications for the most recent Gulf war fall predominantly

into the third category, resting on a predatory rhetorical commitment to a cosmopolitan conception of human rights that is, in fact, wielded in the service of an imperialist project, rather than what Jürgen Habermas calls an ‘egalitarian universalism’.[3]  The dangers people face under these conditions are, of course, ‘asymmetrical’ - who faces what dangers is deeply important.  Yet reliance on a cosmopolitan conception of human rights as ideological cover for imperialist world politics also poses universalistic risks undermining not only the norm of non-intervention so central to the international legal architecture of the ‘first age of modernity’, but also the nascent development of cosmopolitan conceptions of law and human rights of the ‘second age’.

            It is remarkable in this respect that it is not just the neo-conservative hawks in the Bush administration and right-wing think tanks who justified this war against Iraq partly with reference to liberty, democracy and human rights for all, but also liberals like Jean Bethke Elstain, Christopher Hitchens and Paul Berman among many others.[4]  These 'liberal hawks' have argued that ‘pre-emptive’ war and ‘regime change’ are legitimate insofar as the war is aimed at countering real threats to human life and liberty, and that even forceful, unilaterally pursued ‘regime change’ may be a duty for those who enjoy freedom. But they have also seen this cosmopolitan aim as a duty falling pre-eminently on the United States .

            This essay asks how is it that liberals justify military humanism in the name of protecting freedom, human rights and democracy, even when it is pursued unilaterally by a self-appointed imperialist power.  We will focus on the justifications put forward by Michael Ignatieff, the Director of the Carr Center for Human Rights Policy at Harvard University, whose prominent writings in the New York Times Magazine in the run-up to the war and during it exemplify the ‘military humanism’ that Beck diagnosed.[5] In self-consciously embracing both the 'military humanism' currently espoused by many advocates of human rights and American imperialist politics, Ignatieff starkly reveals the dangers that reside in liberal nationalist conceptions of world politics and human rights when these are articulated by a self-appointed hegemonic power. While cosmopolitan justifications of military intervention may have played a prominent role elsewhere (pre-eminently in Europe during the war on Kosovo, and perhaps more generally in human rights organizations), in the USA liberals have been wont to appeal to a cosmopolitan military humanism in support of an imperialist republican nationalism. This point is important, because the implications of the liberal hawks’ justification for the American-led war on Iraq, like their neo-conservative counterparts, are deeply inconsistent with cosmopolitan principles in the crucial dimensions of morality, legality, and politics; because they threaten to erode multilateral institutions like the UN, and to legitimise ‘regime change’ and 'pre-emptive war' by an imperial power. We will argue that even if  the US could accurately be viewed as a republican Empire morally motivated to spread democracy and human rights abroad it could not do so morally, without undermining the development of international law in a cosmopolitan direction, and without further entrenching imperialism, which stands as one of the greatest impediments to human rights and democracy today.

Our analysis is premised on a 'critical cosmopolitanism' that we think is required to underpin any genuinely universal respect for, and protection of, human rights and popular sovereignty. But this position is deeply suspect in the eyes of many on the Marxist Left, as seen for example in the recent writings of Tariq Ali, Perry Anderson and Peter Gowan. We endorse their criticisms of 'military humanism' undertaken by imperialist powers but in the second part of this essay we shall suggest that to develop anti-imperialist, pro-human rights and democratic politics today requires us not to dismiss international law and institutions. And in order to develop a critical cosmopolitanism of this kind we also need to avoid the ‘instrumentalism’ that is evident in Left critiques of the UN and of human rights.  Rather, human rights and transnational institutions like the UN can be crucial arenas of struggle – as Marxists used to say – made more, not less, pertinent by the emergence of an imperialist power bent on self-legitimation and unilateral assertion in every instance that suits it.

I. Interrogating Ignatieff’s ‘I Don’t Know’

The United Nations lay dozing like a dog before the fire, happy to ignore Saddam, until an American president seized it by the scruff of the neck and made it bark. Multilateral solutions to the world's problems are all very well, but they have no teeth unless America bares its fangs….  The 21^st century imperium is a new invention in the annals of political science, an empire lite, a global hegemony whose grace notes are free markets, human rights and democracy, enforced by the most awesome military power the world has ever known.[6]  

Who wants to live in a world where there are no stable rules for the use of force by states?  Not me.  Who wants to live in a world ruled by the military power of the strong?  Not me.  How will we oblige American military hegemony to pay ‘decent respect to the opinions of mankind’? I don’t know. When the smoke of battle lifts, those who support the war will survey a battle zone that will include the ruins of the multilateral political order created in 1945….To support the war entails a commitment to rebuild that order on new foundations.[7]  

Long seen as a principled left-liberal, Michael Ignatieff  ‘plumped’ – a term he has borrowed from Isaiah Berlin – in favour of the attack on Iraq just prior to its commencement.  Coming out in support of the war after due anguish, and against his friends (including those ‘left-wingers who regard American imperialism as the root of all evil’),[8] he insisted that support for the war did not make him or anyone else an ‘apologist for American imperialism’, and stated what was, for him, the key principle: “The problem is not that overthrowing Saddam by force is ‘morally unjustified.’ Who seriously believes 25 million Iraqis would not be better off if Saddam were overthrown?”  The ‘consequential’ justification that 25 million Iraqis will be liberated clearly overrides, he argued, the ‘deontological’ one that ‘good consequences cannot justify killing people.’ This is how Ignatieff believes the moral issue should be answered – regime change undertaken, in effect unilaterally by the US and British administrations, is morally justified by the cosmopolitan aim of liberating the Iraqi people.[9] But as if recognizing that the moral justification for the war was not as straightforward as he initially asserted, he went on to argue that that while it was unfortunate that the debate about Iraq became a debate about American power, rather than about the human rights of oppressed peoples, the events of September 11, 2001 had fundamentally altered the security threats to which the world must respond; and that those who failed to recognize this were blindly ‘wishing they could still live in the safety and collective security of the world that existed before 9/11.’[10] Arguing against the world-wide anti-war movement and  world public opinion, he suggested that, while the fact that the world did not support the US-led war posed a problem, a principle is not wrong because people disagree with it (nor right because they agree).[11]  Having asserted, then, the moral rightness of this war, the only remaining question, he suggested, is whether the risks are worth it; whether it is a prudent move. By implication, since he supported the war, the answer must be yes. 

Much of this echoed Ignatieff’s long-standing position that human rights considerations in the contemporary period have made judgments about war and the use of force complicated, as seen in his support for the military interventions in Bosnia and Kosovo, and his insistence that these interventions demanded radical rethinking along cosmopolitan lines. In repeating many times the banal phrase that Saddam Hussein ‘really is awful’, and in later asserting that his regime not only had ‘just about the worst human rights record on Earth’ but was also ‘in possession of weapons of mass destruction,’[12] he also posed the cosmopolitan question: by what moral authority does a brutal regime claim unfettered sovereignty? He reiterated the case for American Empire as the best hope for installing stability, nation-building, and encouraging human rights, free markets and democracy around the world. Yet from another point of view his candid admission that the war would be fought at the price of leaving the multilateral political order in ruins did seem to fly in the face of his prewar support for military humanism on the basis of multilateralism. In 2000 he had claimed unconditionally that the Security Council ‘should remain the ultimate source of legitimacy for the use of military force’ – although this might require ‘crushing force’ by ‘combat capable warriors under robust rules of engagement’ directed by ‘a single line of command to a national government or regional alliance’; [13] and as late as 2002 he had argued that the US must respect international legal norms with regard to any military actions and ‘should accept international accountability for its actions’.[14] But Ignatieff's  ‘muscular’ conception of human rights[15] seemed to prepare the way for his unequivocal support for the war and his insistence that Iraq’s continuing violations of UN Security Council resolutions meant that the whole international community should ‘walk the walk’ with the American Empire.[16]

Ignatieff admitted well before the war that the idea of an Empire’s burden – American imperial power at work under what he views as the ‘official moral ideology of Empire – i.e. human rights’ – was far removed from that which had been sought by liberal cosmopolitan human rights activists and lawyers ‘who had hoped to see American power integrated into a transnational legal and economic order organized around the UN….[Rather] a new international order is emerging, but it is being crafted to suit American imperial objectives.’[17]  He also recognized that while Europe was more inclined toward a multilateral order that might hope to limit American power, ‘the Empire will not be tied down like Gulliver by a thousand legal strings’.[18] And yet he ‘plumped’ in favour of American Empire, showing, with each new article, greater confidence in the American imperial project, since it is, as Ignatieff put it, quoting Melville, an Empire that views itself as bearing ‘the ark of the liberties of the world’.[19]  This admittedly ‘imperial project’ will require bringing actual stability to the ‘frontier zones’ - and this must be done, Ignatieff insists, ‘without denying local peoples their rights to some degree of self-determination’.[20]  Thus Ignatieff’s realist acknowledgement that ‘empire lite’ is still empire (i.e., that ‘the real power in these [frontier] zones ...will remain in Washington’ and will involve protecting ‘vital American interests’) is married to his insistence that achieving human rights rests on republican duty which itself requires the Empire as midwife: ‘The case for empire is that it has become, in a place like Iraq, the last hope for democracy and stability alike.’[21] 

How should we evaluate this position?  On the one hand, Ignatieff recognizes the realpolitik of the situation -- the horrors visited on the Iraqi people under Saddam Hussein, the fumbling, the weaknesses and the complicity of the UN system, the enormous power that the US wields, and the fact that the American invasion would be oriented to American interests. On the other hand, he has shown a stunning disregard for the lack of evidence, even before the war, of weapons of mass destruction or of any link between the Iraqi regime and Al Qaeda before he ‘plumped’ for war. He did not discuss, so far as we can find, the human rights issues implicit in civilian casualties. Nor did he address issues having to do with environmental contamination and the other ruthless 'side' effects that war was sure to produce. Surely a liberal human rights scholar favouring the war should have addressed these issues. The most that can be said is that he relied on his emerging philosophical position that we must act on the ‘lesser evil’.[22] But even here, he did not soberly address questions crucial to calibrating this equation, nor the requirement of  'proportionality' in the use of force in 'just war' theory, nor the enormous normative problems posed by asymmetric warfare (by which we mean the responsibility that must attend the power to produce ‘shock and awe’ or, as Ignatieff puts it, using ‘crushing force’ against an ‘enemy’ with far inferior military might).

Even months after the officially declared end of war, no weapons of mass destruction and no links with Al Qaeda have emerged. But insecurity and instability in the world have surely been increased, as clear-headed commentators across the political spectrum acknowledge, not just by increased hatred for Western (and particularly American) power and arrogance, but also by cluster bombs left over for Iraqi children to find, the pollution of Iraqi towns and drinking water, ongoing guerilla warfare, and so on. Add to this that civilian casualties produced during the ‘official’ war have been estimated by a British and US group of independent experts to range between five and ten thousand, while the US Defence Department spokesperson says the Pentagon has not looked into the question of civilian deaths because it was focused on ‘defeating enemy forces rather than aiming at civilians.’[23] And now, Paul Wolfowitz admits that the WMD justification for war was ‘settled on’ by the American administration ‘for bureaucratic reasons’, while Donald Rumsfeld concedes that WMD may never be found.[24] Finally, in a remarkable breach of his usual diplomatic demeanour, Hans Blix has admitted that the ‘bastards’ in the US administration viewed the UN as an ‘alien power’[25] and ‘leaned on’ the weapons inspectors to produce more damning reports while  initiating a smear campaign against him.[26]

But beyond all of this, which hardly needs rehearsal for any critical observer of the war and its aftermath, we need to consider the implications of the liberal hawks’ justification for war in terms of the categories of morality and legality. What are we to make of a liberal intellectual of Ignatieff’s stature recommending bypassing and potentially undermining fundamental norms of international law and resting his support so squarely on the moral case for war waged by a ‘moral’ republican Empire?  Even if we were to assume that the US actions were genuinely motivated by and aimed at achieving the liberation of the Iraqi people from oppression, the purported moral argument for unilateral intervention fails on two crucial counts. 

First, as Ignatieff recognizes, imperialism threatens republicanism.  As an imperial power takes on the role of GloboCop, emphasizing military, police and secret spying power, the more does it risk, as Habermas points out, ‘endangering its own mission of improving the world according to liberal ideas.’[27]  This is obvious from such facts as the illegal detention of ‘enemy combatants’ at Guantanamo Bay (and the US Supreme Court’s refusal to consider its unconstitutionality), the detention of ‘illegal aliens’, the ill-treatment of US citizens suspected of ties to terrorist groups, and the treatment of prisoners in Afghanistan and outside Baghdad Airport. Second, as Ignatieff acknowledges, following Thomas Jefferson and the Declaration of Independence, morality requires that we pay ‘decent respect to the opinions of mankind’.  Ignatieff’s moral argument – who can believe that 25 million Iraqis would not be better off without Saddam Hussein? –implies a universal right to be free from oppression, and some version of this may indeed be defensible as a universal moral principle.[28] But the problem is not just that imperialism violates it, which it does by undercutting the republic’s commitment to the rule of law both at home and abroad, but also that the basic moral principle and the universalistic core of human rights should not be ‘confused’, as it is here, with the ‘imperial demand that the political life-form and culture of a particular democracy …is to be exemplary for all other societies’.[29] Again, while Ignatieff is careful to call for an avoidance of the ‘narcissism’ of earlier empires, - i.e. the delusion of earlier empires that their colonized aspired only to be ‘versions of themselves’[30] - his support for this war under these unilateralist conditions cannot avoid ‘narcissism’ or, more forthrightly put, an imperialist imposition of a false universalism.[31]

            Paying ‘decent respect to the opinions of mankind’ requires an egalitarian universalism that breaks with a liberal nationalist conception of republicanism and an imperial vehicle for its expansion. This is so for many reasons but the core moral reason is that no 'republican' imperialism – even that of the American 'republic' – can break from its provincial, particular perspective.  An egalitarian universalism, on the other hand, as Habermas says,  ‘insists on the de-centering of each specific perspective; it requires the relativization of one’s own interpretive perspective from the point of view of the autonomous Other.’[32] It is only in this way that even a ‘good hegemon’ could know whether the actions it justifies as in the best interest of others is in fact equally 'good for all’.

            We may summarize the moral problem as follows: The problem is that one party, even a ‘good hegemon’, cannot morally assume a moral duty unilaterally. ‘Plumping’ for war without taking into account the voices of all those others who also have interests at stake is immoral. Assuming a moral duty morally requires that those affected are genuinely involved in shaping the contours of the response to oppression, mutually and reciprocally. To do so would require, at a minimum, global political public spheres aimed at formulating a response that takes into account everyone’s point of view. Second, and consequently, even a ‘good hegemon’ bases its justification (as Ignatieff admits) on the ethnocentric ground of liberal nationalism – aimed at securing US safety, possibly at the expense of others and, very importantly, spreading the US’s particular interpretation of human rights and democracy abroad. This is why unilateralism is morally unacceptable. This is also why, as Habermas says, the ‘multilateral formulation of a common purpose is not one option amongst others – especially not in international relations.’[33]

            This suggests why Ignatieff’s 'liberal hawk' position in support of unilateralism poses a moral danger. But it also poses grave dangers to international law and the future of human rights. Ignatieff implied that the war might be legal when he suggested that Iraq ’s continuing violations of Security Council resolutions might legitimate war. This runs contrary to the views of the great preponderance of respected legal scholars, including the International Commission of Jurists which has condemned the invasion of Iraq as an illegal war of aggression finding there is no ‘plausible legal basis for this attack.’[34] The most recent war on Iraq has illustrated, once again, the ease with which an illegal war can be waged while threatening the legal norms by which nations previously agreed to abide. This poses significant dangers for international law, both in its non-interventionist orientation, characteristic of the ‘first age of modernity’, and in its development toward a cosmopolitan order in the ‘second age’.

            In supporting this war Ignatieff also seemed to suggest that the international legal norms of non-intervention and national sovereignty of the post-World War II era, the ‘first age of modernity’, have run their course, when he acknowledged that the war would be waged on the ‘ruins of the multilateral political order’.[35] This is a dangerous derogation from the non-intervention principle because it violates the rule that the legitimate authority to decide whether Iraq was in violation of agreements to such an extent that intervention was warranted is the Security Council, not the hegemonic power. Dispensing with the legitimating authority of the UN, Ignatieff seems to see no reasonable alternative to the sovereign power of an imperial hegemon pursuing, as he admits, liberal nationalism, self-interest and an American conception of human rights. Such a shift not only violates the principle of non-intervention, but also endorses the Bush Doctrine of the right to wage ‘pre-emptive war’ against any entity the US deems hostile to its interests – a doctrine that threatens to undermine not just the norms of nonintervention but also the further development of norms of egalitarian universalism.

            Ignatieff clearly sees the path stretched out before us but shows little concern for its perils: ‘[a] new international [legal] order is emerging, but it is being crafted to suit American imperial objectives. The empire signs on to those pieces of the transnational legal order that suit its purposes…, while ignoring or even sabotaging those parts…that do not.’[36]  He claims he is neither apologising nor rationalising but rather stating the reality of international law in an age of empire. The American Empire is not to be constrained by multilateral concerns. International institutions that can be controlled and commandeered are to be retained, those that would require an egalitarian framework and fail to guarantee American dominance are to be discarded. Ignatieff offers essentially no juridical foundations for military humanism but merely approves as obvious the burden America is said to carry – a duty to breach bothersome legal trivialities in defence of human rights and freedoms. ‘Americans are multilateral when it is to the advantage of the United States , unilateral when they can get away with it. It is a vision in which world order is guaranteed by the power and might and influence of the superpower, as opposed to the spreading influence of international law.’[37] This serves as an apt description of American foreign policy, but if Ignatieff is critical of this vision the reader may be forgiven for failing to notice.

            International law failed in the lead-up to the invasion of Iraq . It failed the American imperial leadership that attempted to use international legal norms to frame their intent in legally justifiable rationales. It failed the leaders of France , Germany and Russia who played by the old rules while others rewrote the rulebook. It failed the people of Iraq who were powerless to face aggressors from within and without. And it failed the international rallying cry of concerned world citizens that defiantly and peacefully marched in numbers never before seen in opposition to an unjust war. All this because the international legal norms of the ‘first age of modernity’ were unable to constrain an imperial power determined and strong enough, in Habermas’s words, to ‘break the civilizing bounds which the Charter of the United Nations placed with good reason upon the process of goal-realization.’[38]

            Habermas maintains that the neo-conservatives associated with the Bush Doctrine confront international law ‘with a quite revolutionary perspective [asserting that]… when international law fails then the politically successful hegemonic enforcement of a liberal world order is morally justifiable...’ even when it is formally illegal.[39] What is remarkable, as we have emphasized, is that this is at least as characteristic of liberal hawks like Ignatieff as it is of the American neo-conservatives.  Still, this seems perplexing.  For why would one committed to human rights and democracy, as Ignatieff surely is, but as Bush and Co. clearly are not, recognize yet fail to undertake a consideration of the ‘revolutionary consequences’ attendant to this war aimed at pre-emption and ‘regime change’ and threatening the sole, however flawed, international institution available today to deal with such challenges? With the ratification of the UN Charter after World War II, states formally agreed to ‘give up their sovereign right to go to war’. [40]  Since this war is premised on re-establishing that right perhaps it would be better to call this a ‘restoration’ rather than a ‘revolution’.The liberal hawks, not unlike the neo-conservatives, have thus supported a war that is not only unjust and illegal but one that threatens to imbricate regressive norms in international law.  Michael Glenndon has stated, regarding the Kosovo intervention by NATO, that if ‘power is used to do justice, law will follow.’[41] But this logic works equally in reverse: if power is used to do injustice, unjust law will follow.

            And need we even say that this was not likely a ‘one off’ war? Plenty of commentators have made it clear that it is the first in a series of such wars – as Ignatieff implies when he claims that ‘[i]mperial ruthlessness requires optimism as a continued act of will.’[42] The empire must remain vigilant against all that would stand in the way of its advance. Imperial ruthlessness, however, seems also to require an elusive villain (Osama Bin Laden, Saddam Hussein, take your pick) that can be stalked across borders. A well-oiled public relations machine, replete with politicians to add accountability, embedded journalists to add 'integrity' and public intellectuals to add weight, lays the groundwork for war without end. 

            We do not mean to suggest that Security Council approval for multilateral military force would have wholly addressed the lack of legitimacy of the ensuing intervention. We recognise the undemocratic, not to mention the undeliberative, nature of the Security Council and see that the bullying and bribery of the Bush administration further undermined any possibility of achieving a legitimate decision taken by equals. But in ‘plumping’ for unilateral war, Ignatieff was also plumping for future forms of unilateralism, and plumping against multilateralism under international law and international institutions, pre-eminently the UN. A hegemonic unilateralism is primed to step into the void between the discarded norms of the ‘first age of modernity’ and the (still to be conceived) cosmopolitan norms and institutions of the ‘second age’. The key question is whether an international law justification for war should be replaced with ‘empire’s law’, provided by the ‘unilateral global politics of a self-empowering hegemon’.[43] We think the answer is clear: it should not.  As Eric Hobsbawm notes: ‘few things are more dangerous than empires pushing their own interest in the belief that they are doing humanity a favour.’[44]

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