Sunday, 22 September 2013

International Law of the Jungle (Episode 1)

Cain said to Abel: "There is no justice, no judge, no world to come, and no reward and punishment...” (Targum Yonatan, Gen. 4:8).
Until very recently, USA and Russia disagreed over Syria and over what – if anything – should be done about it.  In fact, their respective positions had only one thing in common: each claimed to be upholding “international law”.

While doing everything in his power to prevent military action against Assad, Russia’s Vladimir Putin (who, I think, is again President after being Prime Minister after being President) recently wrote: “We are not protecting the Syrian government, but international law.”

Not to be outdone in his devotion to law and lawfulness, US President Obama touchingly asked (rhetorically, of course, while arguing in favour of military operations): “what kind of world will we live in if the United States of America sees a dictator brazenly violate international law with poison gas and we choose to look the other way?”

This left me troubled: how can they both appeal to the same “international law”, yet advocate completely opposite courses of action??

Currently, there are negotiations going on: under certain conditions, Assad may be willing to give up his chemical weapons arsenal.  Which only confuses me further: if Assad broke the law, exactly what is it that’s being negotiated?  If the police were to catch me carrying an illegal knife (let alone a gun or a chemical missile), they’d promptly throw the book at me; I don’t think they’d negotiate much!

Don’t you feel that we’re hearing about “international law” a bit too often these days??  What exactly is this law and where does one find it?  I sought these famous statutes of “international law” – and found none.  Or none that have any validity.

Laws are made by legislators.  For a law to have moral legitimacy, the legislator needs to be itself legitimate.  For instance, in the UK law-making is the prerogative of the Parliament.  Other democratic countries have similar legislative assemblies.  Be they called “Congress”, “Bundestag”, “Knesset” or “Assemblée Nationale”, these assemblies have one thing in common: they’ve been elected by the people.  And are thus entitled to legislate in their name.  British law is legitimate because – just like American, German, French or Israeli law – it emanates from representatives of the people.  But nothing remotely similar exists at the international level.

True, there is the United Nations Organisation, which – according to some hopeless naïves and to many cynical politicians – represents “the world”.  Really, does it??  How and why, exactly?  Who the hell elected them to represent us?  The “United” Nations (they are anything but “united”) is a thoroughly undemocratic organisation which cannot in honesty claim to represent anyone.  Its members – ostensibly “states” or “nations” – are in reality regimes, the majority of them dictatorial and unrepresentative.  Including the current regimes of Syria, North Korea, even that of Sudan – whose ruler is accused of genocide.  Each is entitled to cast an equal vote in the UN General Assembly – Assad’s regime just like the Danish government, North Korea’s Kim Jong-un just like the government of Switzerland.  This is an assembly in which criminals get to participate on equal footing in law-making.

But of course, the General Assembly is, for all practical purposes, impotent; it doesn’t really make law, at most it can make suggestions.  The only UN body which really “has teeth” is the Security Council, made up of 15 regi… sorry, “states”.  But ten of them don’t matter either.  It’s the other five who are “permanent” (i.e. “elected for life” in the best “democratic” tradition of… North Korea!) and have the “right of veto”, meaning that in practice they get to say what is or isn’t “the law”.  Last time I’ve looked, the list of those five “permanent members” included those democracy luminaries Russia and China.

Of course, none of the “representatives” who sit on UN’s agencies, assemblies, commissions, committees and councils had ever been elected by the people; they were appointed by their respective governments.  The only thing these “representatives” represent is the interests of those regimes.  So I ask you: virtue of what moral standing are such “assemblies” entitled to legislate??  And how is any “law” that they make legitimate?  What makes it more than an arbitrary decree, of the kind an Assad is likely to promulgate?

Promoters of the “international law” scam point at documents such as the UN Charter, the Geneva Conventions, etc.  These are indeed legal documents; but laws they are not.  They are agreements (i.e. “contracts” to you and me) between signatory parties.  Which may be enforceable under the law, though not above it and certainly not in its stead.  The question is – under which law??

Desperate to create “international law” out of… sheer nothing, some “experts” have come up with an invention which – while ridiculous in the extreme – is at least original: they claim that these contracts constitute “customary law”; and hence, that they  apply – shazzzamm! – to everybody.  But that’s nothing but a deceitful sleight of hand: a contract is a contract is a contract; it’s not a law; and the fact that a contract’s provisions are “customary” does not make it enforceable on those who did not sign it.  I recently signed a contract which says I’ve got to pay rent; but however “customary” that clause is, it’s only enforceable on me, the signatory.  Sadly, I’m unable  to enforce it on my mother-in-law!

Which brings me to the issue of enforcement – without which the best law is just as useful as a beggar’s IOU.  After all, what we are interested in is not the piece of paper that says “Law”, but the rule of law.  That requires a) a body conducting inquiries in a professional, fair and consistent way; b) an impartial court of law or tribunal to interpret and apply the law to each particular case; and c) a “police force” responsible for apprehending offenders and enforcing the court’s decisions.  None of these essential components exists in the case of “international law”.

Sudan's dictator Omar al-Bashir is awarded the red carpet treatment on official visit to China. An international warrant issued in 2009 seeks al-Bashir's arrest on five counts of crimes against humanity (murder, extermination, forcible transfer, torture and rape) and two counts of war crimes (pillaging and intentionally directing attacks against civilians). The Chinese soldiers in the background are there to salute, not arrest him.
There are, of course, various “commissions of inquiry”, “rapporteurs”, etc. appointed by the UN.  But these are the exact opposite of professional, fair and consistent inquiry: they are ad-hoc contraptions with tainted mandates, products of political wheeling and dealing.

Naïves typically assume solemn facial expressions when mentioning the “International Court of Justice”.  The name is indeed impressive; the “court” isn’t.  ICJ is indeed international; but a Court it isn’t, nor does it have anything to do with Justice.  In reality, ICJ is just another UN commission issuing advisory “resolutions”; its members (improperly called “judges”) may or may not have studied law before making a career as politicians or professional diplomats; they are nominated by a “UN member state” (read “regime”) and elected by the UN General Assembly as a result of horse trading between “member states”.  Which in practice means that each “judge” faithfully votes in accordance with the interests of his/her country/regime, with zero regard for “Justice”.

Most “rulings” issued by the “International Court of Justice” are in fact advisory opinions; but it would not matter much if they were real verdicts.  For starters, UN member states do not have to submit to the Court’s “jurisdiction”; they can do so (or not), on a consensual basis.  USA, for instance, does not accept the Court’s jurisdiction, except “on a case-by-case basis” (read: only when it suits its perceived national interests).  Even where the states involved have agreed to submit to ICJ “jurisdiction”, that still amounts to nothing, as there is no international “police force” entitled to enforce ICJ rulings.  Such enforcement is the prerogative of the UN Security Council, which means it can happen only if all five “permanent members” agree…  And when was the last time USA, UK, France, Russia and China agreed on anything?

Where “enforcement” does take place (as in 1990 in Iraq, 1999 in Yugoslavia, 2001 in Afghanistan, 2003 in Iraq), it is the action of a state or coalition of states, with or without the UN rubber stamp.  These, of course, are no “international police force”; at best, they are the international equivalent of a vigilante posse.

Let’s stop pretending: there is no “international law”; there can’t be, because there is no legitimate international legislator, no legitimate international tribunal and no legitimate international enforcer.  “International law” is just an empty concept politicians invoke to try and “sell” us positions and actions which have nothing to do with “law” and everything to do with interest.  That "selling" often works, because most of us are law-abiding people; politicians unscrupulously exploit our natural respect for the word “law”.  In reality, however, beneath the fig leaf of “international law” there’s only the Law of the Jungle: the strong do as they please; the many gang up against the few; dictators get away with murder, however appalling, as long as they control oil reserves or have powerful allies; even outright genocide goes unpunished.  The “international law” remained silent while genocide was perpetrated in Rwanda and Darfur; while thousands were butchered in Srebrenica and tens of thousands in Hama; while hundreds of thousands of women and girls were raped in Congo.  Some "international law"!

So next time you hear a politician referring to “international law”, you’ll know that s/he’s a liar. But should we put up with this?  Till when will we shrug impotently and continue to live in a world that is the legal equivalent of the jungle?  Is there nothing that we, the nations fortunate enough to have achieved freedom and democracy, can do about it?  I believe there is.  And it does not necessarily involve military operations.  The next instalment of this blog’s “international law” series will examine what could and should be done to pour some content into that empty concept.

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