by James Thuo Gathii. New York: Oxford University Press, 2010. 300pp. Hardback. £45.00/$65.00. ISBN: 9780195341027.

Reviewed by Lee P. Ruddin, LLB, MRes, PgCert, Roundup Editor, History News Network. E-mail: leepruddin [at] yahoo.co.uk.


The publication of Antony Anghie’s IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW was a milestone event as far as legal historians were concerned. The Visiting Professor at Harvard University advances a new (non-Eurocentric) narrative of international law which illuminates the enduring imperial character of the discipline by decentering the traditional disciplinary fixation with the Westphalian model of sovereignty. In developing these arguments about the relationship between the metropolitan and colonial forms of law, the book examines 500 years of suppression, oppression, and dispossession from the Spanish conquest of the Americas to the American conquest of Iraq.

No wonder a reviewer in these pages deems Anghie’s magnum opus “important.” His scholarship is evident in many post-2005 legal tracts and James Thuo Gathii’s new book, WAR, COMMERCE, AND INTERNATIONAL LAW, is no different as he illuminates something resembling a quasi-colonial present. This makes it all the more surprising, then, that the Albany Law School Professor’s history is sketchy in parts.

Do not be mistaken, the Kenyan legal scholar’s history of the United States from weak power (but strong supporter of international law) to strong power (but weak supporter of international law) is intriguing. He does a wonderful job tracing both the emerging jurisprudence of the U.S. Supreme Court (Chapter Four: “The Creative Tension Between Commercial Freedom and Belligerent Rights”) as well as chronicling the consolidation of the separation of public authority and private right (Chapter Five: “War, Investment, and International Law;” Chapter Six: “Slippages of the Public and Private in Resource Wars”). Yet his more recent history, particularly post-Cold War, not only omits any real discussion of the sanctions regime placed on Iraq by the United Nations (UN) but offers little in the way of the perceived benefits to de-Baathification. This is not to say, however, that Gathii has not produced a fluid thesis addressing the tension between weak and strong States with regard to international law governing war and commerce. He has, and the author deserves considerable praise for what is a pioneering work on the relationship between aggression and business. However, I digress.

Chapter Three, “The Effect of Occupation on Private Property and Contract Rights,” is a particular case in point. For all the discussion pertaining to the (il)legality surrounding the privatization of publicly owned Iraqi assets, post-March 2003, Gathii [*493] overlooks the fact that citizens’ rights took a “backseat” during the previous 13 years when Iraqis were reduced to Third World standard of living (p.72). “Clearly,” the author writes, “during the period of occupation, Iraq was under the effective control of the United States, the United Kingdom, and other members of the coalition.” (p.98) Yet Joy Gordon, author of INVISIBLE WAR: THE UNITED STATES AND THE IRAQ SANCTIONS, persuasively argues that the same occurred under George W. Bush’s two predecessors with the passage of UN Security Council Resolution 661.

“It can of course be argued that economic sanctions are not a form of violence,” Gordon reminds readers. “But in the case of Iraq they functioned in much the same way as a military siege.” (p.216) Let us not forget that after the U.S.-led bombings of 1991, the George H. W. Bush administration blocked equipment and materials related to water purification and sanitation, food transportation, refrigeration for medicine and blood supplies, and inputs for agriculture which rendered impotent objects essential to the survival of the general populace. Given that international law recognizes a right to economic development and to an adequate standard of living, not to mention the necessity of these for the fundamental human dignity of the person, Gordon concludes that the sanctions constituted war crimes in violation of the Geneva Convention as well as numerous UN Charter provisions. Jean Allain, in a seminal article, goes as far as to suggest that the “near genocidal campaign” (p.402) overseen by President Clinton caused a “children’s holocaust.” (p.401)

The economic strangulation of Iraq (coming after the first Bush administration abandoned Iraqi’s after they rebelled against Saddam in 14 provinces during the Shaaban Intifada) and the disbanding of the Iraqi Army are crucial to understanding the resistance coalition forces faced. Yet one gets the impression Gathii would rather lay the blame with the “well-intended” process of de-Baathification (p.96). That said, it cannot be denied that the blanket purge of Baathists – seen by many as ‘de-Sunnification’ – was at least partially to blame for the Iraqi insurgency in 2004.

But the Coalition Provisional Authority decree (Order No. 1) was much less far-reaching than General Dwight D. Eisenhower’s de-Nazification law which affected all but the lowest-ranking former party members. In stark contrast, Paul Bremer’s Iraqi law affected only 1 percent of Baath Party members, merely prohibiting these top party officials from acquiring government positions, yet leaving them free to find employment elsewhere. Eisenhower, on the other hand, had barred Nazis not only from holding public office but from obtaining positions of significance in private enterprises.

Evidently, Gathii could find no room between the laws of occupation and Hague Regulations for Recommendation 27 of the Iraq Study Group which emphasized the need for the U.S. Government to support reintegration of former Baathists to civic life. The author makes no mention of the National Assembly passing, in 2008, one of the most critical benchmarks that the second Bush administration had pressed for Baghdad to adopt: the de-Baathification reform that allows Sunnis to once again [*494] enter government service. “Appropriately,” Frederick W. Kagan, Jack Keane and Michael O’Hanlon write

"the new legislation will punish only former Baathists who were in the three highest circles of the former regime’s power structure. That probably amounts to a few thousand people. Others will generally be allowed to rejoin Iraqi society, regain their access to jobs and federal pensions where available, and avoid prosecution for previous crimes of the state" (p.B07) .

For all the differences between the postwar occupations of Germany and Iraq, it is too simplistic to say – retrospectively, I might add – that the U.S-led coalition was wrong to strip away the apparatus of Baathist tyranny in The Land of the Two Rivers. Let us not forget, Saddam Hussein modeled his regime on Adolf Hitler’s Third Reich, which controlled the German population through two instruments: the Nazi Party and the Reich’s security services. Bremer, a Yale historian no less, had no choice but to rid Iraq of the country’s equivalent Nazi Brownshirts organization to give it any chance of a democratic future.

And yet, Gathii pushes the Iraq parallel with another occupied power: Japan. Given that there was no privatization in Japan sixty years ago, however, the comparison is misplaced. As John W. Dower, a Japan expert, reminds us in a 2005 lecture, unlike in contemporary Iraq, there was no appearance of war-profiteering on behalf of the Americans.

Nevertheless, it is the privatization of military force that is focus of Gathii’s seventh and final chapter, “Commercializing War: Private Military and Security Companies, Mercenaries and International Law.” Since the demise of the Soviet Union, there has been a dramatic growth in the military-industrial complex. Indeed, post-1991, private military companies (PMCs) have penetrated western warfare so much that today they carry out combat roles traditionally overseen by the regular military. Their influence is so embedded, in fact, that a Guardian investigation revealed private contractors outnumbered British troops on the ground in Iraq, making them the second largest contributor to coalition forces after the Pentagon.

As disturbing as governments’ relinquishing of the most essential and defining attribute of statehood – the state’s monopoly on the legitimate use of force – is, however, Gathii does not concentrate on what P.W. Singer calls “the corporate evolution of the age-old profession of mercenaries”(p.119) Rather, he focuses on Singer’s fourth policy challenge PMCs raise: lack of regulation. Unlike the Senior Fellow at the Brookings Institution (or other commentators covering this post-Cold War phenomenon), though, Gathii makes an interesting observation concerning the particular threats non-State actors pose weak and strong States and the level of legal scrutiny each are under. As he forcefully contends, “the obligations of States to root out violence in the hands of private actors,” namely terrorists, are heightened, while the threats posed by other non-State actors, such as mercenaries, are not subject to enhanced legal rules (p.224).

As comprehensive as Gathii’s discussion on self-regulation within PMCs is (the [*495] footnotes are a veritable goldmine of information), it would be interesting to learn what the author thinks about PMCs introducing their own corporate accountability scheme as a way to avoid public and private law litigation in relation to abuses or, more importantly, to eradicate the double standards of regulatory oversight. Answers to such questions have become all the more pressing given that mercenaries now look to fill the void left by the U.S. Army in Iraq.

The critique of Gathii’s third historical period (post-World War Two) aside, the author’s two earlier eras, the pre-1850 epoch and the age between the mid-nineteenth and mid-twentieth century are, to be sure, as engaging as they are authoritative. Yet it is his “Four Relationships Between War and Commerce” (Chapter One) that alone justifies the cover price and its place alongside the work of Anghie not only on international law reading lists but on post-colonial, development studies and international relations one’s, too.

The publication of James Thuo Gathii’s WAR, COMMERCE, AND INTERNATIONAL LAW will be viewed as a milestone event by legal historians in the future.

Anghie, Antony. 2005. IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW. Cambridge: Cambridge University Press.

Allain, Jean. 2004. “Orientalism and International Law: The Middle East as the Underclass of the International Legal Order.” 17 LEIDEN JOURNAL OF INTERNATIONAL LAW 391-404.

Dower, John W.2005. “Comparative Insights: Marshall Plan, Japan, and Iraq.” March 7, 2005. http://mitworld.mit.edu/video/255.

Gordon, Joy. 2010. INVISIBLE WAR: THE UNITED STATES AND THE IRAQ SANCTIONS. Cambridge: Harvard University Press.

Kagan, Frederick W., Jack Keane and Michael O’Hanlon. 2008. “Making Iraq Safe for Politics.” WASHINGTON POST, January 20, 2008, p.B07. http://www.washingtonpost.com/wp-dyn/content/article/2008/01/18/AR2008011802939_pf.html.

Singer, P.W. 2005. “Outsourcing War.” FOREIGN AFFAIRS. March/April, 2005. Vol. 84, Issue 2, pp.119-132.

Traynor, Ian. 2003. “The Privatisation of War.” GUARDIAN, December 10, 2003. http://www.guardian.co.uk/world/2003/dec/10/politics.iraq.

© Copyright 2010 by the author, Lee P. Ruddin.