This volume was produced in the context of the crisis of legitimacy that occasioned the 2003 Iraq War. As is well known, a bitter feud broke out in the United Nations Security Council (UNSC) over the legality of using force against Iraq. The US government justified going to war in the context of a new doctrine of preventive use of force for self-defence – a doctrine that was soon named after President George W. Bush. The British government anchored its case for war in two previous UNSC resolutions; res. 678 which originally authorised use of force against Iraq in the 1990–91 Gulf War, and res. 687 which suspended res. 678 on a number of conditions including the disarming of Iraq’s weapons of mass destruction (WMD) stockpiles, facilities and programmes. Both the US and British positions were underpinned by intelligence, subsequently proved to be flawed, that Iraq had failed to get rid of its WMD. Opponents of the war disputed this intelligence and, moreover, argued that the Bush Doctrine was plain illegal and ridiculed the British idea of resurrecting twelve-year-old UNSC resolutions.

It is no great surprise that in the contemporary world the use of deadly force by a political grouping or nation-state or on behalf of international society should raise troubling questions of legitimacy. The problem appears to be massively overdetermined and the intellectual challenge is to bring some order to a confused and confusing debate; to distinguish between short-term problems and deep-rooted changes in both understandings of legitimacy and patterns in the use of force; and try and identify where there might be scope for narrowing the very deep disagreements that have come to surround this question.

What follows is an attempt to acknowledge the complexity and relevance of debates about the relation between legality and legitimacy as it bears on political behaviour. The opening section is intended to orient these international policy debates in wider traditions of political theory, particularly as they bear on the nature of sovereignty and the state. On this basis, the two prominent, recent instances of controversial recourse to war (Kosovo and Iraq) are considered from the perspective of legality and legitimacy, first as a matter of juridical evaluation and then from the perspective of international reputation. The focus throughout reflects a concern with the qualities of American global leadership since September 11th, and how this leadership should or should not be guided by canons of legality.

This article considers the relationship between geopolitical change and the evolving international rules on military force. Its focus is the impact of the United States’ rise to hegemonic status on the rules governing recourse to force (the jus ad bellum) and the conduct of hostilities (the jus in bello, otherwise known as ‘international humanitarian law’). For reasons of space and clarity of analysis, the article does not focus on the different, more traditional IR questions of whether and why the behaviour of the United States might be constrained by these rules.

Determining when states can use force legitimately is the central normative problematic in world politics. Domestically, constraining the state’s use of force with social and legal norms that confine state-sanctioned violence to a limited and clearly defined set of purposes and circumstances is essential to the maintenance of civil society and the protection of basic human rights. Internationally, circumscribing the conditions under which states may use force legitimately is critical to the maintenance of peace and stability in international society. And the degree to which legitimate force may be used internationally to constrain illegitimate force domestically lies at the heart of the problematic relationship between order and justice in world politics.

Three different types of arguments were used to justify the 2003 Iraq War. The first was based on the requirements of national security. Iraq was believed to be developing deadly weapons which it might use against neighbouring states or hand over to terrorist groups such as al-Qaeda. A second argument was based on international security. Iraq was supposed to comply with a series of UN Security Council Resolutions and was failing to do so, thereby undermining the credibility of the leading international institutions. The third argument was based on human security. The Iraqi people had suffered too long under a tyrannical regime and this was an opportunity to overthrow it and replace it with something much better.

Having apparently abandoned war as a device for settling their own quarrels, developed countries, in the wake of the Cold War, have had an opportunity to cooperate to deal with the two chief remaining sources of artificial or human-made death: civil war and vicious regimes. In addition, international law has evolved to allow them to do so, variously conferring legitimacy on most international policing measures even when they involve the use of military force and even when they violate the policed country’s sovereignty.

Writing on international relations frequently makes reference to the use of force, but rarely integrates changes in its nature into a central role in the explanatory model. In particular, force, in the shape of military capability, is often seen as the ‘servant’ of ideas about its appropriate use, and thus of the norms of the international system, rather than as an independent element, let alone playing a central role in affecting the latter. This article addresses the issue with particular reference to relations between the West and the ‘non-West’, arguing that the contested relationship between the different narratives of military history impinge directly on the character of international relations.

The twenty first century has opened, as so many centuries before it, with the drum roll of war depressingly audible. The optimism of the early 1990s that world politics was being remade, and that the threat of serious conflict was receding, vanished along with the twin towers that were so much a symbol of that world, one heart-breakingly beautiful September morning in 2001. And with the return of force and war to the forefront of international politics, so come the inevitable questions; when, under what circumstances, in what manner and with what restraint, may we (whoever the we might be) use force to secure our interests, protect our families, defend our communities or our values?

Why have President Bush and his administration consistently, and publicly, stated their commitment to fully comply with the laws of war protecting civilians while, simultaneously, refusing to fully comply with the laws of war protecting prisoners of war? How do we understand President Bush and his administration’s unquestioning acceptance of the protection of civilians, but the rejection of the same for prisoners of war? Are the strategic and normative costs of each so dissimilar as to justify this difference? Considering the recent exposé of abuses and torture of prisoners of war held in both Iraq and Cuba, the answers to these questions are not merely academic.

The American-led Iraq war that began in 2003 has generated intense discussion about when it is legitimate to use force and what force can accomplish. Often this debate is portrayed as a breakdown in consensus, with the US charting a new unilateralist course that undermines existing multilateral understandings of how force should be used. Often, too, the debate is portrayed as a transatlantic one in which Europeans (notably France, supported by Germany) are leading the multilateralist defence against growing US unilateralism.

The duties, if any, of European states to participate in multilateral operations in Africa are currently a matter of some controversy. What are the obligations of European states with regard to the maintenance of international peace and security in Africa? How far is it legitimate for them to avoid the contribution of troops to UN peacekeeping operations in Africa? Does the reluctance of European and other developed states to participate in UN peacekeeping operations in Africa have significant legal consequences? This article will consider these issues in three main sections. The first provides an overview of UN peacekeeping in recent years at a time when there has been a substantial surge in demand for peacekeeping troops. It discusses the problems that the UN has faced in securing troops from developed member states, particularly for operations in Africa. The second section describes the pattern which has emerged in recent practice with regard to peacekeeping and enforcement action in Africa. Although developed states have generally been reluctant to provide troops for UN peacekeeping operations in Africa, they have undertaken Chapter VII operations in the Democratic Republic of Congo (DRC), Liberia and Côte d’Ivoire as ‘coalitions of the willing’. They have also provided assistance to certain African governments threatened with violent overthrow, such as the governments of Sierra Leone and Côte d’Ivoire. They have turned to regional and sub-regional organisations to take the lead in certain conflicts: they have provided financial assistance, logistical support and military training for such organisations.

An action is legitimate if the pertinent community deems it so. Most would agree that Russia’s conduct in the 1990s in Georgia was illegitimate. Military intervention in another state, unless the other state is preparing an imminent attack on one’s own territory, or is engaged in the systematic abuse of one’s own citizens, is a violation of the international norm of sovereignty, at a minimum. Some have argued that European politics has gone beyond this ‘territorial integrity norm’ to something more expansive, to a consensual renunciation of any and all territorial claims on other states. This was first codified in the Helsinki Final Act of 1975.

After 11 September 2001, the Administration of George W. Bush dismissed any criminal-justice model, put forth by various voices at home and abroad, for understanding and combating terrorism. This was ‘war’, the President insisted on 17 September, as he did repeatedly – directly, implicitly, and by analogy – in his 20 September address to Congress and on many later occasions, with American war in Afghanistan and later Iraq making that claim true. The criminal-justice model persisted, however, not least in Bush’s more colourful rhetoric. As he commented on the 17th regarding Osama bin Laden, ‘There’s an old poster out west, as I recall, that said, ‘‘Wanted: Dead or Alive” ’. On the 20th came his odd analogy, ‘Al Qaeda is to terror what the mafia is to crime’. On 11 October, drawing on crime-fighters’ lingo, he announced a ‘Most Wanted Terrorist list’ as part of his effort to ‘round up’ – both cowboy and cop words – ‘the evildoers’. In word and action, he kept blurring the neat line between war and crime he asserted.