Tim Holmes listens to commentators on Syria tie themselves in knots over the rule of international law.
17.09.13
What right have powerful states to kill people outside the law? Dozens of protesters posed this question last Monday, converging on Parc Aberporth in Ceredigion – the site where MoD contractors test ‘unmanned aerial vehicles’ or drones, known to have executed without trial nearly 5,000 people in Pakistan, Yemen and Somalia.
The threatened attack on Syria warrants the same question; but discussion of international law has instead bordered on the surreal. The prevailing assumption is that the US and its allies may do as they please – Aberconwy’s Conservative MP Guto Bebb, ‘fuming‘ at the ‘disaster’ of Cameron’s ‘dire’ Commons defeat, provides a particularly stark illustration – but the UN Charter permits war only in self-defence or with Security Council backing, and there is no obvious reason to exempt Washington. The contradiction is tying some commentators in knots.
Scrambling to square the circle, they offer several lines of argument. The simplest is that international law is irrelevant: morality trumps legality, and since Russia will veto any resolution authorising war, international law lacks legitimacy. Surprisingly or otherwise, this argument comes most often from liberal and left-leaning sources.
The obvious problem is that any country could attack its neighbours on a ‘moral’ pretext; and that the US, which makes profligate use of its own veto, commands no greater legitimacy. As in that other old favourite, the ‘ticking time-bomb‘ argument for torture, we are encouraged to fix our attention on a (hypothetical) exception, not the rule, and so ignore the moral weight a consistent framework of law possesses. In the words of one jurist named Barack Obama:
if the international community fails to maintain certain norms, standards, laws, governing how countries interact and how people are treated … over time this world becomes less safe.
In reality, of course, such ‘moral’ exemptions empower only the already-powerful: no-one expects Tuvalu to launch the next Operation Infinite Justice. But, since liberals tend to regard the West as ‘basically benevolent‘, they perceive no great problem.
Others are less happy to flout international law, but find it inconceivable that Washington should face the same barriers as everyone else. The cognitive dissonance produces bizarre rationalisations. We enter a semi-legal netherworld where acts are illegal but ‘legitimate‘ – the latter (like ‘moral authority‘) a nebulous term possessing neither ethical nor legal force, wildly untethered to any frame of reference besides political propaganda.
The most extraordinary version of this argument, though, is presented by political science professor Ian Hurd in the New York Times:
if the White House takes international law seriously … allied leaders should declare that international law has evolved and that they don’t need Security Council approval to intervene in Syria.
Nevertheless, if Washington
accepts that the rule of law is the foundation of civilized society, it must be clear that this represents a new legal path.
Make up the rules as you go along, in other words, and call them laws. Murder the UN Charter, but arrange a dignified funeral and pay your respects; you will still be ‘taking international law seriously’.
Has the law changed to allow ‘humanitarian intervention’, then? This is the apologists’ last refuge, and the foundation of the British Government’s legal case. ‘Humanitarian intervention’, so the argument runs, is part of ‘customary international law’, reflecting the views and practices of states. But, as legal scholars Dapo Akande, Deborah Pearlstein, Eric Posner, Paul Campos and Christian Henderson point out, this is fantasy. Only a handful of powerful states pursue ‘humanitarian’ intervention, and even fewer deem it lawful; 'the vast majority' reject it, as has the International Court of Justice. The UN Charter takes precedence, and the feted ‘Responsibility To Protect’ (R2P) principle claims no different.
Grant the legality of ‘humanitarian intervention’ an inexplicable free pass, though, and the facts still do not support its use. Western leaders have actually ruled out action to end Syria’s bloodbath: instead, they propose retaliation to ‘punish‘ Assad and preserve ‘credibility‘ – a plainly illegal course. The British Government says it wants to ‘deter or disrupt’ some speculative ‘further use’ of chemical weapons – hardly plausible from those who drop white phosphorus on civilians, and a far cry from the legal language of ‘prevent and stop‘. And it remains unclear exactly who unleashed chemical agents on Ghouta, or that anything would deter Assad if he thought his regime was at stake. As Merthyr Tydfil and Rhymney MP Dai Havard noted:
It could be that the regime’s assets are being used, but who is using them? … Do not imagine that under such circumstances, and particularly in a war situation, Assad and his people are so monolithic and well-organised that there are no differences among them.
Lastly, force must ‘objectively’ be a last resort. It is not: ‘we have had really no diplomacy’ on Syria’s future, notes former US diplomat Christopher Hill. The International Crisis Group and European Council on Foreign Relations – hardly radical organisations – note that intervention could easily degrade regional security, worsen Syria’s humanitarian crisis and shatter diplomatic efforts. Plaid Cymru, to their credit, have vigorously defended the alternative: diplomacy, humanitarian collaboration and criminal trials in international courts. Grossly hypocritical as it is, then, we should give Obama's recent turn towards disarmament talks a cautious welcome - as long as it does not become a means of legitimating war, or even of advancing regime change. That the US refuses to stop arming Syria's rebels – completely illegally - does not bode well.
What’s left? Some outlandish, bottom-of-the-barrel contrivances about ‘collective self-defence‘ (chemical weapons might ‘drift’ over the Israeli or Turkish border); or what Pearlstein calls a ‘stunningly broad theory of anticipatory self-defence’ that ‘stretches [the concept] to absurd proportions’:
State A can use force against State B because there’s a chance State B’s weapons might someday be acquired by Actor C, which might then use weapons formerly owned by State B against State A.
This is a recipe for universal war, of course; but even were it not, jihadists are most likely to seize Assad’s chemical weapons if his regime implodes. An attack might well hasten that outcome.
None of these (quasi-)legal confabulations bear even a moment’s scrutiny. And though diverse, they all share the same basic assumption: that ‘we own the world’. Laws are for the little people; the West may do as it pleases. Thankfully, the public disagree – and seem to be making their voice heard in America as they have in Britain. Parc Aberporth could be just the beginning.
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