State Liability: Tort Liability and Beyond
| Date | 01 July 2005 |
| Published date | 01 July 2005 |
| DOI | http://doi.org/10.1111/j.1468-2230.2005.557_3.x |
| Author | Jesse Elvin |
REVIEWS
Dominic McGoldrick,From ‘9^11’to the IraqWar2003: International Law in an
Age of Complexity
,Oxford: Hart Publishing, 2004, 380pp, pb d18.00.
Dominic McGoldrick has producedone of the ¢rst monograph-length studies of
the role of international law in the turbulent ¢rst years of this century. The
dramatic events of ‘9^11’have made many people sense that the world has chan-
ged in a profound way and that the traditional structures of international lawand
politics are unable to respond to these changes. This book is a very useful guide
to some of the major legal issues relating to terrorism and the 2003 war in Iraq,
and in particular to questions about theapplication of international humanitarian
and human rights law. McGoldrick writes with clarity and has made accessible,
to both teachers and students of international law, many of the di⁄cult legal
arguments in the area.
The book does have limitations. In the introduction, McGoldrick acknowl-
edges Hilary Charlesworth’s warning to international lawyers of the dangers of
using crises as a touchstone for international legal analysis. Focusing on crisis,
Charlesworth cautions,‘shackles international law to a static and unproductive
rhetoric’ (‘International Law: A Discipline of Crisis’ (2002) 65 MLR 377, 377).
However unintentionally, McGoldrick’s book seems to illustrate the force of
Charlesworth’s argument. The sheer volume of material that McGoldrick has
included in his analysis of the two‘wars’, the ‘War on Terrorism’ and the ‘War on
Iraq’, indicates that international lawyers have not lost their taste for a good crisis.
Further, the work itself, in purporting to explore the implications for interna-
tional law of the two‘wars’against a background of ‘complexity theory’, disap-
points. McGoldrick marshals a formidable collection of material into clear and
coherent form, but is overly reliant on the words and analysis of others. He too
rarely engages in his own analysis of the law or in detailed commentary on the
manyarguments he reproduces.The book is a frustratingread because it promises
much ^ asking questions such as ‘What future for the United Nations? Did
the war on Iraq harm the war on terrorism? A new American Empire?’ ^ on
which it ultimately fails to deliver.
McGoldrick traces thelegal and political events leading from the ‘9^11’ attacks
on the United States to the ongoing war in Iraq. Chapters 1 and 2 sketch an
intellectual and historical context for material to come. Chapter 3 examines the
application of international humanitarian law and human rights law to the two
‘wars’, while Chapters 4, 5 and 6 are devoted to the 2003 Iraq war. They outline
respectivelythe arguments surrounding the legality of the Iraq war, the attitude of
the United States to relevant international legal issues and some of the questions
surrounding the reconstruction of Iraq. Finally, in Chapter 7, entitled ‘World
Order(s) for the Twenty-First Century’, McGoldrick identi¢es and attempts to
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(2005) 68(4) MLR 696^712
address the questions that his preceding chapters raise for international law and
order.
Based on a series of seminarsgiven at variousuniversities, the book is impress-
ivefor its synthesis of a remarkable collectionof material. McGoldrick’s stated aim
is to ‘identify the kinds of questions that need to be asked, as much as to pro¡er
answers to them’ (p 2) and he covers an admirable breadth of topics within that
rubric. Chapter 6 on ‘Winning the Peace: An Iraq for the Iraqis’, for example,
includes sections on the role of the coalition as occupying powers, Security
Council resolutions on post-war Iraq, the Iraqi Governing Council, economic
reconstruction and humanrights. Likemany publications thatemerge fromsemi-
nars or other oral presentations, however, McGoldrick has not overcome the
expositional nature of his original format.The chapters are structured to present
opposing views on the many questions McGoldrick identi¢es. Rather than
building on the rich sources that he uses, McGoldrick then either o¡ers a rela-
tively brief commentary that revisits familiar assessments of the law or fails to
include his own argumentaltogether. On the question of pre-emption, for exam-
ple, he traces the di¡erent viewsof the United Statesadministration, Ruth Wedg-
wood, John Yoo, Richard Falk, Miriam Sapiro, Tom Franck and others.
He then concludes that ‘great instability’ would arise if the doctrine were to be
accepted in the form proposed by the United States and advocates recourse to
the Security Council over an expanded view of self-defence. There is nothing
inherently problematic with this conclusion; indeed most international lawyers
would probably agree with it. It is disappointing, however, that McGoldrick’s
own voice is eschewed in favour of the voices of others and that so many of his
conclusions mirror those that have been made elsewhere. In an area that has
already been the subject of so much scrutiny, McGoldrick’s aim of ‘identifying
the questions that need to be asked’ was perhaps unduly limiting.
The emphasis in the book’s title and introduction on‘complexity theory’ as a
framework for understanding the issues is also perplexing. McGoldrick’s descrip-
tion of complexitytheory is short and draws primarilyon the workof John Urry.
The theory is saidto emphasise that‘there areoften diverse networked time-space
paths, that there are often massive disproportion alities between causes and e¡ects,
and that unpredictable and yet irreversible patterns seem to characterize all social
and physical systems’ (p 7). After introducing complexity theory in Chapter 1,
McGoldrick does not return to it until chapter 7.The theory does not appear to
have informedthe structure of the bookor of individualchapters, nordoes it play
an explicit role in the analysis. It is thus di⁄cult to assess the extent to which this
particular theory may progress international law beyond McGoldrick’s exhorta-
tion to‘continue to seek and identify the unexpected consequences of unantici-
pated events’ (p 198). It is tantalising to wonder how compelling McGoldrick’s
analysis might have been had he explicitly grappled with, for example, the argu-
ments about the legality of the war in Iraq from a basis of unpredictability and
disproportionality.
I had di⁄culties with two other elements of the substance of the work. First,
McGoldrick deliberatelyl inks the‘Waron Iraq’ with the ‘War on Terrorism’.He is
conscious of the fragility of this premise, noting for example that there was no
evidence of any involvement by Iraq in the‘9^11’ attacks, but devotes little time
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