Legal interventions

Conor Foley
October 9, 2007


Norman Geras has written an interesting response to my article about crimes of aggression and the legality of certain types of humanitarian intervention.

Until comparatively recently the idea that international law could be used to hold political and military leaders accountable for waging war, or for crimes of torture, genocide or mass murder seemed fanciful. Despite the principle established by the Nuremburg Tribunal, it was not until 50 years after the Genocide Convention that the International Criminal Court (ICC), which it envisaged, was brought into existence.

During the 1990s the UN security council, urged on by western public opinion, began to make unprecedented use of its powers under Chapter Seven of the UN Charter to authorise military interventions during humanitarian crises in the Balkans, Rwanda, East Timor, Sierra Leone and elsewhere. International criminal tribunals were established to prosecute those accused of committing war crimes and soon a number of former heads of state were behind bars.

The former dictator of Chile, Augusto Pinochet, was arrested in London on the foot of a Spanish extradition warrant and, although he eventually returned home on "medical grounds", the House of Lords ruled that his prosecution could go ahead because Britain, Spain and Chile had all ratified the UN Convention Against Torture. A similar attempt is currently under way in Germany to bring legal proceedings against Donald Rumsfeld for the torture of detainees in Iraq and Guantanamo Bay. This issue will probably haunt other former members of the Bush administration if they travel abroad in the future.

Despite an extraordinary campaign by President Bush to prevent the ICC coming into existence, which included threatening military action against the Netherlands should any US citizen ever be brought to the Hague, the court is up and running. It has issued indictments in relation to Darfur, Northern Uganda and the Democratic Republic of Congo and its scope and influence can only increase in the years to come. International law has, in other words, begun to make its presence felt in international relations.

Much of this would have been inconceivable a decade ago and many of the basic concepts and principles of international law are still not very well understood in mainstream political discourse. The issue has, however, become increasingly controversial since most international lawyers believe that the invasion of Iraq was illegal - although Britain's Attorney General was prevailed upon to issue a contrary opinion.

Any debate about international legality is, by its nature, rather technical. In his latest post, Norman Geras cites the wording of Article Two of the UN Charter which states that force may not be used "against the territorial integrity or political independence of any state", or "in any other manner inconsistent with the purposes of the United Nations". The use of force for another purpose, he argues, such as defence of human rights, would be permissible because the promotion of human rights is one of the purposes of the UN. These issues have been discussed by the International Court of Justice in cases involving Britain and Albania and the US and Nicaragua, neither of which upheld this interpretation. They were also considered by the influential Independent International Commission on Kosovo, which rejected them.

His stronger argument is simply to say that it cannot be right for states to get away with committing acts of genocide, torture, mass murder and other crimes against humanity. Action to prevent and punish such crimes must be legitimate, otherwise the treaties that prohibit them are meaningless. He could have added the House of Lords citing of the Nuremburg judgment when it rejected Pinochet's claim that he had a right to immunity for actions committed in his capacity as head of state. "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."

As Norman Geras points out there is currently a "glaring logical contradiction" at the heart of international law, which pits the "universalist" principles of human rights against respect for national sovereignty and non-interference in a state's internal affairs. In practice this has been resolved by the UN security council simply declaring certain humanitarian or human rights crises to be threats to "international peace and security" and invoking its Chapter Seven powers. The adoption of the "responsibility to protect" doctrine has formalised this by recognising that the UN is under an "obligation" to intervene in certain circumstances to protect human rights.

However, since interventions will always be subject to the political vetoes of the security council's permanent members and unilateral actions, taken outside this framework remain illegal, Norman Geras concludes by arguing that "where laws place themselves on the side of the violation of fundamental human rights" they should not retain our respect. "No one is obliged to speak in favour of legal norms that let human violation and mass murder run on unchecked", he says, and such laws "should be ignored and counteracted".

But if states get to pick and choose which laws they wish to obey then international law does indeed become meaningless. Why, for example, should any state not directly threatened by Iran care whether or not it is attempting to acquire nuclear weapons? This, it seems to me, is the weakness of the unilateralist approach that has governed much of US and UK foreign policy for the last few years. By acting outside the framework of international law whenever it suits them, they have made it more rather than less likely that others will do the same.

The alternative to a rules-based system is a power-based one. This is basically what we have at the moment, but that does not need to be how things remain. Clearly, many of the world's problems can only be solved by governments acting together and, after the failures of Bush's unilateralism, there are signs that his successor may be open to a more multilateral approach. Now is a good time to be arguing for a strengthening of international legal mechanisms and methods of enforcing their decisions.

Source: The Guardian (CIF)
http://commentisfree.guardian.co.uk/conor_foley/2007/10/legal_interventions.html