by Peter Jenkins
Enthusiasm in some quarters for punishing Russia for its moves to recover the Crimea has been a feature of recent public debate.
Similar references to “punishing Assad” were rife last August after Western governments published indications that the Syrian government had used chemical weapons in the suburbs of Damascus.
[...]]]>by Peter Jenkins
Enthusiasm in some quarters for punishing Russia for its moves to recover the Crimea has been a feature of recent public debate.
Similar references to “punishing Assad” were rife last August after Western governments published indications that the Syrian government had used chemical weapons in the suburbs of Damascus.
This fondness for viewing international situations through a crime and punishment prism is striking because it is sharply at odds with international law — or rather, to be more precise, with laws governing relations between states.
The United Nations Charter, which lies at the heart of the international system, is devoid of references to crime and punishment. Instead it lays down procedures for the pacific settlement of disputes and for action with respect to threats to the peace, breaches of the peace, and acts of aggression. The aim of such action emerges clearly from articles 39, 40 and 42 of the Charter. It is to “maintain or restore international peace and security”, and to “prevent an aggravation of the situation”.
The Statute of the International Court of Justice (ICJ) is equally devoid of such references. The ICJ’s job is to deliver interpretive judgements on “all cases which the parties refer to it”, any question of international law, and the nature or extent of the reparation to be made for the breach of an international obligation.
The Charter concept of “restoration” is echoed in the Statute of the International Atomic Energy Agency (IAEA) and in the dispute settlement understanding (DSU) of the World Trade Organisation (WTO); the ICJ concept of “reparation” in the DSU.
Article XII.C of the IAEA Statute requires the Board of Governors to “call upon [any member state reported by the Director General to be in non-compliance] to remedy forthwith any non-compliance which [the Board] finds to have occurred.”
Article 19 of the DSU states that when a trade measure is found to be inconsistent with a WTO agreement it will be recommended to the member concerned that the member “bring the measure into conformity with that agreement”. Article 22 provides for the “compensation” of a WTO member or members who have been affected by a trade measure in the event of a conformity recommendation not being implemented within a reasonable period of time, but stresses that full implementation is to be preferred.
Both the IAEA Statute and the DSU contain provisions that could be construed as punitive. The Statute envisages loss of access to the IAEA technical assistance program, and even suspension from the exercise of member privileges and rights, “in the event of failure to take full corrective action within a reasonable time”. The DSU provides that victims of an offending trade measure may apply to the WTO’s Dispute Settlement Body for authorisation to suspend trade concessions previously available to the offending party.
But the context and drafting of these provisions suggest that their framers’ intention was not punitive but corrective: to create a source of pressure on the offending party to return to conformity.
The lesson to be learnt from these examples is that it is a mistake to think of the inter-state part of the international legal order as having the characteristics of a domestic criminal justice system.
If anything, it is to Anglo-Saxon civil law that inter-state law approximates, especially to the law of tort and to contract law. It is there that one finds such concepts as the settlement of disputes through judicial process, corrective action, reparations and compensation.
This is not to deny the existence of a body of international law that is concerned with criminal justice. However, international criminal courts and tribunals mete out punishment to individuals, guilty of war crimes, for instance, or crimes against humanity — not to states.
These distinctions are not trivial. Public and parliamentary misunderstandings about the fundamental nature of inter-state law can lead to pressure on governments to act in ways that are more likely to provoke conflict and to “aggravate the situation” than to restore peace or resolve disputes.
Governments should react robustly to such misunderstandings. Ministers can exclude all mention of punishment from their own statements in times of international crisis, and they can spell out that their over-riding aim is to secure compliance with international obligations, the correction of non-compliance, and the maintenance or restoration of peace.
If that leads them to refrain from imposing sanctions when it is obvious that sanctions will not serve any of those ends, and that their only purpose is punitive — or even vindictive — so much the better!
]]>Russia is not staying silent as the US appears to be positioning itself for an attack on the Bashar al-Assad regime in Syria. Defending its last key ally in the region, Russian Foreign Minister Sergei Lavrov warned the West against intervention. Western nations [...]]]>
Russia is not staying silent as the US appears to be positioning itself for an attack on the Bashar al-Assad regime in Syria. Defending its last key ally in the region, Russian Foreign Minister Sergei Lavrov warned the West against intervention. Western nations should avoid repeating “past mistakes,” said Lavrov.
More importantly, Lavrov illustrates just how broken and vaporous the system of “international law” is when it comes to conflict and protecting civilians. “The use of force without the approval of the United Nations Security Council (UNSC) is a very grave violation of international law,” he said. And there is no question that he is correct.
An intervention in Syria requires the approval of the Security Council in order to be comply with international law. Such authorizations are, quite naturally, exceedingly rare. Not only does it require a majority vote in the Council, but, more importantly, all five permanent members of the Council (the US, Russia, China, Great Britain and France) must also agree. Any one of those countries can exercise its right to veto any resolution before the Council.
The idea, in 1945, made some sense. In the post-World War II era, there was still some question as to whether the US and USSR would perhaps build on their wartime alliance and find a way to work together, but it seemed unlikely. An incentive to maintain some sense of order in the world by working together on such matters and being able to block one-sided moves might have seemed sensible. It’s even worked out that way from time to time. But for the most part, it’s been a recipe for paralysis and a means to prevent action on matters of global concern, rather than to promote it.
The most obvious example of this is the matter on which there has been, by far, more Security Council vetoes than any other: Israel’s occupation of territories captured in the 1967 war. From 1946-1971, the USSR was the overwhelming leader in Security Council vetoes; no other country was even close. These were, of course, mostly Cold War-related resolutions that directly or indirectly took aim at Soviet actions and policies in various parts of the world. Since then, the overwhelming leader has been the United States, with the clear majority of those vetoes being made on behalf of Israel, protecting its occupation and concomitant violence and settlement expansion.
Indeed, in recent years, the problem has gotten so bad that most resolutions regarding Israel-Palestine have been withdrawn in advance, knowing the US will veto as a matter of course. The matter reached its ultimate absurdity in 2011, when the Obama administration vetoed a UNSC resolution that stated nothing at all that was not already official US policy. But the veto was expected and required. The fact that it was such a moderate resolution raised fears among AIPAC and its various fellow travellers in the Israel lobby, and there was a lot of public pressure on Obama to veto. But there’s no reason to think he wouldn’t have done so anyway.
Politics and power, not international law, govern international matters. The fact is that legality will have no bearing on the US decision to attack Syria or refrain from taking action. The decision will be based on strategy and politics.
The system of international law is irreparably broken. Ultimately, any system of law depends entirely on the ability of the judicial body to enact penalties and sanctions on lawbreakers. Such penalties don’t exist for the United States, nor for Russia or China or the other members of the Security Council. Britain and France are more compliant with international law than the others, but this is due not to fear of censure but because their own situations (including widespread European support for abiding by international law, as well as the experience of the two World Wars and the end of colonialism, the latter having removed a lot of European disincentives toward international law) push them in that direction.
Indeed, it is worth asking this question: if one believes that intervention in Syria is needed to stop what is already a humanitarian disaster from getting much worse, should international law be ignored in doing so? It seems inescapable that the answer to that question is yes, and one is then left with only the question of whether military intervention will help or hurt the millions of Syrians in the crossfire.
But at what point can we claim with reasonable certainty that the moral imperative trumps the law? Particularly in a hypothetical world where the law actually matters, where should that line be drawn? In point of fact, few people are so naïve as to believe that military intervention ever occurs for purely humanitarian reasons. It is generally done in order to pursue the invading country’s interests, and if some humanitarian good is done on the way, well that is just fine. And most of the time, the humanitarian interests are only a cover for other goals; the situation is often oversimplified so the public will support the intervention, which is sometimes vastly distorted.
In this instance, it is Russia warning the United States against violating international law, but the US has played the same game on many occasions — the 2003 push for a UN imprimatur for the invasion of Iraq being perhaps the most prominent and revolting instance.
The alternative to a world governed by international law is a world where might makes right. That is, indeed, the world in which we live. The point here is not that international law should be done away with. On the contrary, it must be strengthened exponentially. A legal system that can enjoy at least some insulation from the whims of politics, both domestic and international, is crucial, and the International Criminal Court and International Court of Justice have at least some of that. But more importantly, there must be a mechanism where even the most powerful country can be held accountable for violating the law.
Such a system will never be perfect, of course. Even in the realm of domestic law, we regularly see differences in how it is applied and defied by the rich and the poor. But even the wealthiest individuals have to at least consider their actions when breaking the law. Some system where powerful actors are treated the same as everyone else must be put into place. The answer to how that can be achieved is for better minds than mine, but asking the question is the first step.
Other aspects need revision or at least revisiting as well. Sovereignty is a crucial principle, without a doubt, but it is also used by tyrants to shield themselves from, for example, reprisals under international human rights law. The debate over intervening in Syria following alleged chemical weapons use by the Syrian government is inherently related to the current system of international law, which is broken far beyond the point of having any effectiveness. In many ways, it is an obstacle. It needs to be rebuilt, before more Syrias confront us.
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