Power, not Law

What is this thing, international law?

I believe the Iraq war was a disaster and a terrible blunder whether it was legal or not. I also don’t think Israel should have pounded Gaza in 2008 either, but whether it was criminal you’d have to ask experts.

Critics of Western governments seem to be very confident about this concept. Unlike some critical onlookers, I don’t consider myself qualified to say whether indeed it was ‘illegal.’ Only a properly constituted court is competent to pronounce a war illegal. But its a free country.

While the Iraq debate rages on, the very notion of international law, at least in the realm of armed conflict, seems at best confused and at worst dishonest.

First, are people serious that we should only endorse as legitimate wars that have the unanimous consent of the Permanent Five on the UN Security Council? In that case, there have been plenty of possibly illegal wars that may well have been justified morally and strategically. Vietnam’s intervention to end the Cambodian genocide, Tanzania’s intervention against Idi Amin in Uganda, NATO’s intervention in Kosovo, India’s intervention in Bangladesh.

So if Tony Blair is a ‘war criminal’, will we agree that Bill Clinton, Wesley Clark and Javier Solano are too?

And what about the other members of the P5? France unilaterally and illegally tested nuclear weapons in the Pacific and backed the bombing of Serbia, Russia waged war in Georgia and Chechnya without asking first, and China invaded Vietnam in 1979 without a Security Council Resolution. Just about every US President since 1945 has waged war without a UN Security Council Resolution.

The fact that the US-led coalition attacked Iraq without a mandate was not an aberration, but only the most well-known continuation of a pattern of behaviour since the UN was founded.

What’s more, they mostly get away with it. Despite George Monbiot’s best efforts, John Bolton won’t be standing trial in an international court any time soon. We almost certainly won’t see Chinese or American statesmen before the Hague in our lifetime.

So again, what is it?

There seem to be two alternatives here.

I) It is politics dressed up as law. International law is a concept that great powers invoke and then violate when it suits them. In other words, it depends entirely upon power relations and the pursuit of self-interest, and therefore is applied only to the weak or the vanquished (Saddam Hussein, Slobodan Milosevic, Hermann Goering, Pinochet), with the exception of states that commit human rights violations, but are shielded by the patronage of great powers (eg Sudan). Against the counter-argument that domestic law is arbitrary and political too, seriously, sovereign states with an authority that can enforce the law prosecute wealthy and powerful men often (I grew up in the country of Bond and Skase). Being a privileged political clan did not immunise members of the Kennedy family from continual arrest and prosecution under domestic law. Wealthy and powerful governments have mostly not been physically forced to submit to interntional law, and enjoy an immunity that domestic criminals can only envy.

2) It is actually law, which cannot be consistently applied. If international law is authentic and we consistently apply it, life would become intolerable. Not only would we try to arrest and prosecute Israeli officials on our soil. We would try the same thing with Russian and Chinese envoys too.  And the monarchs and potentates of the Middle East. The vigilant and impartial pursuit of international law would quickly leave us without allies and partners, it would threaten our ability to conduct diplomatic relations with strategically important states, or it would force our governments into humiliating climbdowns. Foreign policy by definition is the art of interacting constructively with many states and societies whose values and practices we may dislike. What’s more, when we are at war with loathsome regimes, we very often need the support of other tyrants who flout laws. So with great speed, a lawyerized approach to foreign governments would make foreign policy impossible.

Why should the United Nations bear exclusive moral authority anyway? The UN does plenty that is good, such as relief and aid, but it cannot be the sole arbiter of the legitimacy of war, because it is an assemblage of self-interested nation-states, not a transcendent body of independent philosopher kings.  I don’t see that legitimacy can only be conferred by an outfit that once had Robert Mugabe’s Zimbabwe on the human rights committee. I don’t see Vladimir Putin’s consent, or indeed George Bush II’s, as the decisive test of whether a war is justified.

Where international lawyers seem to regard the international community as a supreme authority that dispenses justice and where rules can be applied in an apolitical and impartial way, we might more wisely recognise the world for what it is: a jungle without a Leviathan, where power, weakness and self-interest speak louder than formal documents. The answer to the abuse of power is not spider-webs (strong enough to catch the weak but not the mighty), but the prudent and principled use of power.

Would that mean we lived in a world dominated by strong states who decide for themselves and without deference to the UN whether wars are justified? Yes, but that is the only world we have ever lived in. If you want Western states to apply laws to other states consistently, be careful what you wish for.

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