No top and no bottom

1. I agree with Vladimir Putin, up to a point

From the outset, Russia has advocated peaceful dialogue enabling Syrians to develop a compromise plan for their own future. We are not protecting the Syrian government, but international law.

It’s the way he tells ‘em.

To be fair, Putin’s address to the American people did make some good points, in particular this one:

The United Nations’ founders understood that decisions affecting war and peace should happen only by consensus, and with America’s consent the veto by Security Council permanent members was enshrined in the United Nations Charter. The profound wisdom of this has underpinned the stability of international relations for decades.

No one wants the United Nations to suffer the fate of the League of Nations, which collapsed because it lacked real leverage. This is possible if influential countries bypass the United Nations and take military action without Security Council authorization.

I liked his conclusion, too:

I would rather disagree with a case [Obama] made on American exceptionalism, stating that the United States’ policy is “what makes America different. It’s what makes us exceptional.” It is extremely dangerous to encourage people to see themselves as exceptional, whatever the motivation. There are big countries and small countries, rich and poor, those with long democratic traditions and those still finding their way to democracy.

In passing, I was amused to see that this last glimpse of the blindingly obvious had annoyed Thomas Friedman. Who does this so-called President Putin think he is, making out that America isn’t the greatest goddamn country on earth?

2. Inter arma enim silent leges, only not just yet

But is the man from the KGB really standing up for international law – and what does it actually say about Syria? This is a bit less of a live issue, thankfully, than it was before the rush to war was stopped in its tracks (well done that weakling!). The UK government’s case for intervention, set out by Attorney General Dominic Grieve, rested on the doctrine of “humanitarian intervention”. The argument was that it would be permissible under international law for the UK (or, presumably, any other state) “to take exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime”. Such an intervention would be legal under three conditions:

That there is “convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief”; it is “objectively clear that there is no practicable alternative to the use of force if lives are to be saved”; and the proposed use of force is “proportionate to the aim of relief of humanitarian need”.

In response, Dapo Akande of the Oxford Institute for Ethics, Law and Armed Conflict pointed out that neither the second nor the third condition had been met. The third was particularly hard to get past:

“Even if there is a rule allowing intervention to avert a humanitarian catastrophe that rule would not simply permit action to deter and disrupt use of chemical weapons,” Akande said. “This standard is too lax. It would be a rule about preventing and about stopping. The UK is not proposing to take action which will actually prevent or stop further uses of chemical weapons.”

Unless, of course, what the UK government was planning was to carry on bombing until every last chemical weapon in Syria had been put beyond use; we’ll never know. It’s probably just as well.

Akande also made a broader point, which is that the idea of legality invoked by Grieve is rather a provisional thing. To the extent that it’s codified in any way, international law provides for military action in self-defence, in accordance with a UN Security Council resolution and, er, that’s it. What Grieve is referring to is the informal or ‘customary’ international law which is constituted from year to year by what states actually do.

when the attorney general’s advice says international law allows Britain to take measures to alleviate a humanitarian catastrophe without security council approval, this can only be in reference to customary international law which is based on the “views and practices of states”. [Akande] said there is “very little evidence of state support for this view. Indeed most states have explicitly rejected this view.”

3. Better not ask them to split the bill

The BBC canvassed opinions from Akande and four other lawyers (Geoffrey Robertson QC, Professor Sigrun Skogly, Professor Robert McCorquodale and Professor Dr Wolff Heintschel von Heinegg) as well as the political analysts Dmitry Babich and Sinan Ulgen. Their views stacked up as follows. There were five key issues: the role of the UN, including but not limited to the UN Security Council; the legality of “humanitarian” interventions; the legality of past interventions in Iraq and Kosovo; the “responsibility to protect” doctrine in the case of crimes against humanity; and the appropriate response to breaches of the ban on chemical weapons.

ROBERTSON: Intervention to prevent crimes against humanity – such as the use of banned chemical weapons – does not require UN Security Council approval; the legality of humanitarian intervention was established even before the UN was founded, in the context of actions against piracy and slavery. The intervention in Kosovo was not condemned by the UN Security Council, making it legitimate.

SKOGLY: Normally, any intervention needs to be approved by the UN Security Council. However, the legality of humanitarian intervention is a separate question. UN member states have a duty to promote human rights; consequently, if the regime has used chemical weapons, they have committed crimes against humanity. This means that UN member states are obliged to act on the basis of the responsibility to protect.

McCORQUODALE: Military action must be approved by the UN Security Council; failure to gain this approval means that the Iraq intervention is considered illegal. Intervention for humanitarian reasons, or on the basis of the responsibility to protect, is not lawful in terms of international law, although it may be in future.

AKANDE: The principle of responsibility to protect “does not create a legal right for intervention without Security Council approval”. The doctrine of humanitarian intervention rest on “a view of international law that has been rejected by most states”. (The humanitarian intervention in Kosovo, while not approved by the UN Security Council, was in pursuit of demands made by the UNSC.) A General Assembly resolution might be a possibility, but permanent members of the UNSC are unlikely to offer the GA that kind of authority.

HEINTSCHEL VON HEINEGG: In the absence of a UN Security Council resolution, intervention could only be justified on the basis of “customary international law”. The US and allies acted on this basis in their humanitarian intervention in Kosovo, although many states still regard this intervention as illegal. International treaties outlaw chemical weapons but do not provide for military intervention in response to their use. Some states currently turn a blind eye to limited action against chemical weapons, but this may change.

BABICH: Although the US might cite chemical weapons as a justification, UN Security Council approval is essential to make any intervention legal. Iraq and Kosovo didn’t have UN approval and were therefore illegal. And let’s not forget that they never found any chemical weapons in Iraq.

ULGEN: Only action approved by the UN Security Council would have “full legitimacy”. An alternative would be to try to get a resolution passed by the General Assembly. Other possibilities, outside the UN framework, include the responsibility to protect principle (invoked successfully in Kosovo) and international law banning chemical weapons, going back to the 1925 Geneva Convention.

4. At the shatterproof heart of the matter

So what does that lot add up to? For McCorquodale, Akande and Heintschel von Heinegg (three of the five lawyers), as well as Babich, the lack of UN approval makes intervention illegal. At the same time, all three lawyers acknowledge that international law changes over time and that customary international law may, arguably, give support to actions which are formally illegal. In this respect they contrast the Syrian situation unfavourably with Kosovo, although it’s a question of degree: none of them goes so far as to assert that the Kosovo intervention was legal. They also note, as does Babich, that customary international law is contested: one state’s customary international law may be another state’s illegal aggression.

Robertson dismisses the idea that UN approval is needed before military action can be taken. He argues that humanitarian intervention is legitimate, and that it’s legal under international law unless and until it’s ruled to have been illegal. Robertson’s invocation of piracy in this context is odd; action against piracy was justified historically on the basis that pirates were hostes humani generis, enemies of mankind and outside the protection of any nation. Robertson also refers to slavery, which seems more relevant: British actions in suppressing the slave trade – such as detaining slave ships and offering the slaves their freedom – could certainly be seen as outside the law, and did cause international incidents. However, these were at worst acts of unlawful expropriation, for which the slaveowners and their governments could (and did) ask for redress. Any parallel with the proposal to ‘free’ the people of Syria from the use of chemical weapons through outright acts of war is stretched in the extreme. Skogly and Ulgen both argue that the responsibility to protect could justify intervention, although Ulgen does acknowledge that this would be outside the UN framework. Skogly goes so far as to argue that “responsibility to protect” makes intervention obligatory, although she avoids stating outright that it would be legal.

Four of the experts refer to the “responsibility to protect” principle; only Akande notes, correctly, that it supplies a reason for intervention rather than a separate justification, and does not justify action by individual states outside the UN Security Council framework. (McCorquodale says that a state-level “responsibility to protect” would not make intervention lawful; Skogly and Ulgen both suggest that it would.) Another word worth watching is “legitimate”, a particularly slippery concept in this context (and only used by Robertson and Ulgen out of our experts). “Legitimate” doesn’t have a precise definition, but I’m taking it to mean “of uncertain legality, but unlikely to be challenged”. Of course, this is a fundamentally political judgment, as it depends on what you regard as a challenge: a nasty comment on Voice of Russia? a formal diplomatic rebuke? a referral to the International Court of Justice? (Or, if you’re a Republican President, none of the above?)

Having picked my way through all these different opinions, I think things ultimately are as simple as Babich makes them seem. The putative legal justification for an intervention has been variously rested on the 1925 Geneva Protocal banning chemical weapons (which doesn’t justify intervention), on the doctrine of preventing crimes against humanity (which is purely customary) or on the ‘responsibility to protect’ (which is codified, but doesn’t justify intervention outside the UN Security Council framework). In short, there’s nothing there, unless you define ‘international law’ as ‘what states do and then claim to be legal’ – and that’s not really satisfactory if the reason you’re invoking international law is to justify your state doing something and then claiming it to be legal. In this ‘customary’ perspective, international law (like reality) really is “what you can get away with“. This approach may work for a while if, like the USA, you’re one of those states that tends to get away with things (Britain historically isn’t, to its credit). But it’s not a principle that could ever coherently be generalised – which may be why, as Akande says, most states don’t want it to be. Remove this impossible option – of a kind of informal international legal order built on generalised lawlessness – and we’re left, as Putin effectively said, with a choice between international law and exceptionalism: either the law applies to everyone, or we maintain that it doesn’t apply to us because we say so.

This isn’t to say that there will never be an international mechanism for intervention in cases of humanitarian crisis, or that the ‘responsibility to protect’ will always be subject to agreement at the level of the UN Security Council. International law can and does change. But it hasn’t changed yet – not in the way that the interventionists would have liked.

5. Hark, now the drums they beat again

I think the failure (legal as well as political) of the arguments for intervention is significant – and very welcome, if that doesn’t go without saying. It should, hopefully, set an enduring precedent.

I have some sympathy for the people who say

it cannot be the case that [Security Council authorisation] is the only way to have a legal basis for action … We could have a situation where a country’s Government were literally annihilating half the people in that country, but because of one veto on the Security Council we would be hampered from taking any action. …That is why it is important that we have the doctrine of humanitarian intervention

or

a system of law that would countenance mass atrocity without any remedy simply because the interests of a veto-wielding power at the UN blocks remedial action is morally unacceptable, indeed intolerable; and so where the UN itself becomes delinquent by not upholding some of its own most fundamental principles, the UN not only may, it should, be defied by member states willing to give those principles more respect.

or, more succinctly,

Viewed from the angle of UN legality, military action against Assad cannot possibly be legal … If military action against Assad is morally justified then that must be the case regardless of whether or not it is ‘legal’.

(James Bloodworth, David Cameron, Norman Geras. Not necessarily in that order.)

I don’t agree with them, because I believe they’re missing two very important points. One is that legality – even the cobbled-together legality represented by international law – is a virtue in itself, and an extraordinarily important virtue. If the legal system of England and Wales governs 56 million individual actors, the international legal order governs 200 (give or take a few). If a handful out of 56 million actors defect from an agreement, they’re in trouble; if a handful out of 200 defect, the agreement is in trouble. An action in breach of international law isn’t simply an action with the quality of not being internationally legal  – it’s an action which breaches international law, leaves a (customary) breach in it. In other words, it’s an action which makes international law harder to invoke from then on, and harder to develop further. (Let’s say we hope to gain Russian and/or Chinese agreement to the principle of “responsibility to protect”. Would acting unilaterally now make gaining this agreement in future (a) easier or (b) harder?)

Pace James B, if military action against Assad (or anyone else) is illegal, that must be the case regardless of whether or not it’s morally justified – or, to put it another way, regardless of how much we may want it to be legal. And if you’re going to use your moral justification to knock a hole in the – already horribly imperfect – edifice of actually existing international law, it’s going to need to be a very good moral justification. Which brings me to the second point, touched on by Akande. Politically, the great merit of a rush to war is that it gets you into the war nice and quickly, without too much time to sit around debating the whys and wherefores. Conversely, one of the great merits of insisting on legality – at least, insisting on stopping for long enough to have the argument about legality – is that it creates a pause in the rush to war, in which there’s time to ask the awkward questions: in particular, what is the government trying to achieve, and has it chosen the best means to do it? Fortunately – and thanks to some excellent political footwork from Ed Miliband – there’s been a long enough pause for those questions to be asked; I think it’s fairly widely acknowledged now that the UK (and US) government’s goal was all too unclear, and the means chosen seemed likely to be horribly counter-productive. But it was a close thing.

Too often, when the drums start beating, the appropriateness of military force goes unquestioned, even by people who position themselves on the Left. But if all your solutions look like craters, I think you need to ask yourself why you believe that all your tools are missiles.

5 Comments

  1. Posted 26 September 2013 at 17:25 | Permalink | Reply

    Phil, I agree with virtually all of this, except that it seems to me that the R2P has in fact been very fully ‘codified’ by the statement approved by all the UN heads of state and government at a special summit of the general assembly in 2005, the statement in turn formally approved by a resolution of the Security Council — details at http://www.barder.com/4043, to which you flatteringly provide a link in your post. R2P does *not* provide a handy alternative to the requirements of international law as defined by the Charter.

    I’m especially astonished to hear grown-ups seriously arguing that it can’t possibly be a feature of international law that a country or countries could be prevented from using force to forestall or end a humanitarian disaster by a single veto cast by a single rogue member of the five permanent members of the Security Council — and that therefore the use of force in such circumstances, without the authority of the Council, must be permitted under international law! Can’t they read the Charter?

    The argument (referred to but not of course endorsed in your post) that since the Security Council never condemned the NATO attack on Yugoslavia over Kosovo, it must have been legal despite never having been authorised by the Council, is obvious nonsense. Any UNSC resolution condemning the NATO action would inevitably have been vetoed by the US and UK, and probably also by France, whatever the views of the rest of the Council’s membership.

    It’s also dispiriting to read so many commentators on the Syrian crisis taking it for granted that it’s purely the certainty of a Russian (and/or Chinese) veto which is preventing the US (and UK and France) getting Council approval for a military attack on Syria over Assad’s alleged use of chemical weapons. There’s an echo here of the attempt by Blair and Straw to blame their failure to get Security Council authority for the attack on and occupation of Iraq on a supposed (but actually non-existent) French threat to veto any authorising resolution in any circumstances at any time. Actually *in both cases* the impossibility of getting Council approval for the use of force stems from the impossibility of getting the necessary nine votes in the Council in favour of military action, not the prospect of a Russian or any other veto. That was undoubtedly true of the Iraq dispute and is almost certainly true now of the Syrian situation: if you look at the list of members of the Security Council this year, it’s very hard indeed to see which nine of them would be willing to vote to authorise the US to attack Syria with bombs and missiles. There simply isn’t a broad enough international consensus in support of a western attack on Syria and that’s reflected in the Council. In the absence of nine affirmative votes for an authorising resolution, negative votes by Russia and China would not constitute vetoes.

  2. Posted 26 September 2013 at 18:59 | Permalink | Reply

    Thanks, Brian. Coincidentally, I re-read your blog post this morning and caught the point about R2P having been codified – as a reason for action, not a justification outside the UNSC framework. I’ve revised the post accordingly.

    There’s a depressingly infantile quality about some of the pro-war comments – I’m thinking of Cameron, although he’s not alone in this. “It cannot be the case…” But of course it can be the case that the law doesn’t allow something that would be desirable, and (particularly in the context of international law) it can be the case that the merit of upholding the law outweighs the advantage that might have been gained by breaking it.

  3. Posted 10 October 2013 at 19:37 | Permalink | Reply

    One is that legality – even the cobbled-together legality represented by international law – is a virtue in itself, and an extraordinarily important virtue.

    Although one might point out that anybody who’s any distance to the left must surely have thought about the justifications for not sticking to legality, since the law is so often framed and exercised to prevent or inhibit actions with which leftists would agree. We’re not fetishists of legality: we do need to think through when and why we agree with ourselves or other actors stepping outside the bounds of legality.

    Of course that’s very far from the situation of the US (or another powerful state) shrugging its shoulders at legality because it is too strong to need to take any notice. But even so, the question of whether you should be tied by legality, in situations of urgency, surely exists. You know a great deal more about international law and its interpretations than I do: I’d perhaps suggest, more generally, that one important difference between US unilateralism, and (say) entering an airbase to damage a military aircraft is that the proponents of the latter action are prepared if necessary to justify themselves before a court. An important moral test of extra-legal action is surely whether one is prepared to let other people judge what you did, and in a practical sense (i.e. you may suffer inescapable consequences) rather than a merely philosophical sense (they may disagree with what you did).

    • Posted 17 October 2013 at 22:51 | Permalink | Reply

      I think the sabotage example is relevant, but I read it a bit differently. A Ploughshares saboteur who breaks the law doesn’t directly challenge the existence of the law – they know they can be punished for what they’ve done, & generally accept the punishment. They challenge the justice of the law – and hopefully the law ends up being changed as a result – but they don’t destroy the law in the act of breaking it.

      A state breaking international law is more like some large percentage of the population deciding to break a law simultaneously – everyone called Smith or Jones, say, or the entire population of Essex. The law would immediately become unworkable. There are some cases – in international law – where this would actually be a good thing: the British government deciding that the Royal Navy would free any slaves who came into its power punched a hole in the international acceptability of slavery. But the focus needs to be on the law that’s being broken – not the desirable results of dodging around this one law just this once – because an international law that’s broken stays broken. You could even argue that the slavery example is the exception that (dis)proves the rule: making slavery less acceptable made the world *more* lawful, not less so.

  4. Guano
    Posted 18 October 2013 at 11:16 | Permalink | Reply

    An excellent article and good comments. “Humanitarianism” has become a way to drive a coach and horses through international law. Grieve’s legal justification for the proposed bombing of Syria was almost as toe-curling as Goldsmith’s last minute justification for the legality of the invasion of Iraq and his subsequent explanations to Chilcot as to why he had changed his mind at the last minute (after being of the firm opinion, from November 2002 to February 2003, that another resolution would be required after UNSCR 1441 otherwise an invasion of Iraq would be a breach of international law).

    In early 2013, UK diplomats were arguing for arming the Syrian opposition as a humanitarian measure. I was at various seminars at which diplomats showed a great deal of reluctance to explaining how sending arms into a war zone would be a humanitarian policy move. Eventually transpired that it was being assumed that Assad would fall if the opposition had a little more firepower and that everything would be hunky-dory when Assad was gone. Both of those have now been shown to be very dodgy assumptions, though this has yet to be acknowledged.

    If the UK acknowledged its status as a middle-ranking power, it would acknowledge the utility of international law. The failure to acknowledge the importance of international law (for example the rarity of mentions of international law in much political discourse between September 2002 and March 2003) is because of the dependence on the USA, which appears to think that it can get along fine without international law.

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