Tuesday, April 15, 2014

International law: a destructive addiction

For something whose existence is so tenuous, international law has an imposing presence.  Part of this comes from the usefulness of international tribunals in adjudicating trade and boundary disputes.  But what about war crimes, crimes against humanity, and other more dramatic affairs?  We constantly hear that this or that action or practice violates international law, as if this alone made the heinousness of the act self-evident.  The fact is that obedience to international law may also be heinous.  If we don't see this, it's because the West's supremacy in the 1990's gave international law an exalted reputation it never deserved.  We'll see how the decline of that supremacy requires a reassessment of what international law has to offer.

To appreciate what's happened, it's necessary to distinguish between actual law and judicial-sounding moralizing.  Any bunch of dignitaries can write down some sentences and call them law, but that's not enough. What more do we need?

A traditional answer, understandably contested by international lawyers, is enforcement.  Some contemporary theorists disagree. They cite "the law of contract, tort or family law, none of which rely directly on the need for enforcement by the state in order to function properly."  This is precarious.  The traditional enforcement requirement does not say that reliance on enforcement must be 'direct'.  It says there will be consequences if you break the law.  Contract, tort, and family law don't come with penalties prescribed, but the fact is these rules wouldn't be called laws if you could flout them with impunity.  If I don't pay alimony or the agreed price of goods and services; if I don't honour my commitment to spouse or children; there is some recourse.  You can sue me, or bring charges of non-support, and if you married me, I better not have married someone else in countries not recognizing polygamy.  Defiance of the judgements involved can ultimately lead to losing my liberty.  If I forcefully resist arrest it can even lead to my death.

Suppose, though, that some international laws rest on nothing more than mutual understanding or good will.  Trade agreements, for instance, may have no sanction other than the bad reputation you get if you break them (well, and the very real consequences of a bad reputation).  Call all this law if you like, even law in the full sense of the term.  Whether or not law by definition requires enforcement, the international 'laws' governing murder and atrocity certainly do require it.  Otherwise they merely express an arid idealism which promises no effect other than disappointed indignation.  That's indeed what we have today.  Anyone unaware of this hasn't noticed how the realities of enforcement have changed.

The contemporary version of international 'criminal' law - the sort related to violence - comes into being with the United Nations.  It was created by the countries which won World War II.  The permanent members of the Security Council probably represented the most complete monopoly on military force the world has ever known.  When the UN drew up its Charter, which forms the basis of non-commercial international law today, there was no question but that it had muscle behind it.  However this muscle was not employed to enforce the UN's "Universal Declaration of Human Rights": that was an aspirational document no one took very seriously.  The preoccupation of the Security Council, the institution most resembling an enforcement arm of noncommercial international law, was the avoidance of world war through the maintenance and adjudication of spheres of great power influence.

Stalin was deeply serious about this, willing to pay a real price for Western cooperation.  He let the West crush a well-developed Greek communist uprising and made no attempt to block the massive intervention against North Korea.  His successors followed his lead.  They showed no inclination to invoke the UN Declaration against Western-sponsored atrocities in Latin America, Indonesia, and Southeast Asia. In all these compromises, on both sides, it was understood that human rights would count for nothing.  Israeli violations of these rights were noted in General Assembly resolutions, but no one expected enforcement because of the US veto.  And until recently, even human rights organizations showed no sign of supposing that the perpetrators of human rights violations would ever be brought to justice, much less interrupted in their pursuits.  The focus was on public campaigns to free individual dissenters or the mere exposure of violations: back before smartphones, atrocities weren't joyfully recorded on video for all the world to see.

What holds for the UN Declaration also holds for the 1987 Convention against Torture, another aspirational document that has not, I believe, ever come close to enforcement.  Even the 1998 arrest of the notorious Pinochet in London came to nothing.  The interpretation and especially the enforcement of international law, under the auspices of the UN, was always subordinate to reasons of state.  This should come as no surprise.  The UN was born and continues to be a forum for states to pursue and balance their interests, not an institution dedicated to the just treatment of individual human beings.

For a while, deceptively, it looked like things had changed.  What brought the appearance of a human rights revolution in international law may have seemed to involve legal mechanisms of enforcement.  In fact it had to do with a fundamental change in the balance of power.  Western powers, perhaps commendably, were able to 'enforce' provisions within scenarios that had at best only very weak juridical legitimacy.  How did this happen?

With the fall of the USSR and, even more important, Russia's subsequent near-collapse into the arms of the West, the Western powers, led by the US, reigned supreme.  They had an interest in establishing human rights standards and in enforcing them in certain parts of the world, notably Yugoslavia.  It is not necessary to see this as hypocrisy or the cynical pursuit of self-interest: perhaps the West saw the opportunity to indulge itself in some slightly selective idealism. (The torturers and murderers of Latin America don't sit in the jails of the International Criminal Court.) The fact remains that the seeming advances in the cause of human rights occurred because the West had unprecedented dominance in world affairs.

Their dominance was crucial to evading the core requirement governing enforcement of contemporary international law, namely UN Security Council assent. NATO intervened in Kosovo under the pretense of enforcing UN resolutions.  Legally, though, it was not up to NATO unilaterally to decide whether the resolutions were being honored, or what was to happen if they were not.  Yet without this intervention the famous Yugoslavia war crimes trials would never have taken place.  Though Russia has allowed the tribunal to proceed, it questioned both its efficacy, fairness and competence.  This was a faint presage of things to come.(*)  As soon as the imbalance of power weakened, non-Western nations found reasons, again good or bad, to blow the house down.

The story is very recent and very well known.  Russia was furious at being outmaneuvered into agreeing to a UN Security Council resolution on Libya that authorized the West to intervene against Gaddafi.  Furious, perhaps, at itself as well:  it apparently didn't read the resolution carefully.  But Russia was no longer falling apart and no longer prepared to accept humiliation.  It decided to reassert its own sphere of influence concerns, and has blocked any attempt to intervene in Syria on the basis of human rights.  But this is more than great-power special pleading.  Russia's stance has exposed the fundamental incapacity of international law to protect human beings from atrocity.  The damage is irreparable.

The reason emerges from the founding document of the United Nations.  Though referred to as "The UN Charter", it is actually called "Charter of the United Nations and Statute of the International Court of Justice."  Claims that the Charter is the central document of contemporary international law would be hard to defeat.  And clearly, the main concern of the Charter is the prevention of war and consequently of aggression against sovereign states.  This is apparent from the language of its articles.

When it comes to matters of war or aggression, the charter doesn't mince words. It clearly enjoins any such actions. Thus Article 4 says that "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state...". Article 39 says that "The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken ... to maintain or restore international peace and security."  Prohibitions are clear and enforcement is clearly envisaged.

On the other hand the Charter does mince words when it comes to human rights.  It merely reaffirms faith in these rights. It intends to encourage respect for them, and suggests various socioeconomic efforts to 'assist in the realization' of human rights (Article 13).  The Charter is vastly more activist and enforcement-oriented with respect to national sovereignty than with respect to the rights of individual human beings.

What then of UN support for human rights within sovereign states - supposedly robust in the emergence of a "Responsibility to Protect"?  The closest thing to such protection is discussed in Paragraph 139 of the 2005 "Outcome Document" summarizing the deliberations of the General Assembly.  It's worth quoting in full.

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.  (http://www.responsibilitytoprotect.org/index.php?option=com_content&view=article&id=398)
No wonder member states approved this: it's scrupulously toothless about domestic atrocities.  No nation engaged in massive atrocities against its own people is likely to lose much sleep over the UN's stated resolve "to use appropriate diplomatic, humanitarian and other peaceful means".  As for "In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council... should peaceful means be inadequate", no one with friends on the Security Council has anything to fear either.  At one point the language is ludicrous:  the 'international community' does not even commit itself to helping states build the capacity to protect: it only "intends" to have this commitment!  In short international law offers no protection for individuals unless all the great powers want to act.  But if all the great powers want to act, who needs international law?  In such rare circumstances, action will follow whether or not the law concurs:  one can hardly imagine the great powers having so much respect for legal niceties that they would be deterred from acting in such circumstances.  So international law is either impotent or superfluous in the defense of human rights.(**)

But it's much worse than this.  The repeated appeals to international law cannot but create the presumption that it should be obeyed.  In normal times like today, when there is a balance of power in the world, this offers excellent opportunities for powerful opposition to humanitarian intervention: a Security Council veto is all it takes to render any such intervention contrary to international law.  Yet decent, compassionate people keep treating this law with unbridled respect.

Activists of all sorts constantly appeal to international law.  This is a habit born of post-World-War-II optimism and the brief moment of Western supremacy in the 1990s.  There is every reason to suppose that moment will not repeat.  On top of that, Western supremacy not only offers no guarantee of respect for human rights: it offers a guarantee that human rights will not be respected when they conflict with Western interests.  The now firmly established status quo is that international law will be used to frustrate any but universally approved attempts to enforce the much-vaunted Responsibility to Protect.  No one should suppose, because they can muster some argument or other that responsibility to protect trumps non-aggression, that such arguments have the slightest chance of carrying the day.  The UN is an assembly of nations.  All of them distrust any weakening of their sovereignty.  They care about human rights only when it accords with their political agenda.  The idea that the UN Security Council, in such circumstances, will enforce the responsibility to protect in contentious cases is a non-starter.

Those tempted to moralize on the basis of international law need to remember the simple fact that laws can be good or bad.  International law is no exception.  It almost certainly situates non-aggression over human rights.  'Almost certainly' is more than good enough when great powers disagree on the interpretation of the law, that is, when they have different political agendas.  To appeal to international law is to legitimate the sort of obstruction we see in Syria today, and this is the tip of an iceberg.  Efforts to impose international law on any officially respectable country rife with atrocious violations of human rights - India and Mexico, for instance - can't even be imagined, because it is so obvious that the Charter provisions against non-aggression would kill any attempt at enforcement as soon as it surfaced. All things considered, the preponderant tendency of international jurisprudence is to forbid outside intervention in sovereign states literally no matter what the level of atrocity they inflict on their citizens.  Indeed it's hard to see how there can be progress towards international justice as long as international law is considered irreproachable.

The greatest harm inflicted by faith in international law is the extremely tenacious belief that somehow, if sufficiently outrageous truths are known, some properly outraged international community will invoke the law of nations which, in its majesty, will put a stop to the atrocities.  This flies in the face of all the evidence; its level of denial is impressive.  It is a crutch.  The sooner it is kicked away, the better.  Where laws are catastrophically wrong, they must be broken.  At some point human suffering must count for more than the bare possibility that a discredited ideal will redeem itself in some implausible future.

*  Russia's doubts have just been dramatically vindicated by the West itself:  the European Union has decided to set up an international tribunal "focusing exclusively on crimes allegedly committed by Kosovo's ethnic Albanian rebels during their war with Serbia".  The Associated Press reports that "Plans for an independent tribunal amount to an admission of failure by the West to hold its ethnic Albanian allies accountable for war crimes. The rebels had the backing of NATO during the war — and the West has staunchly supported Kosovo in its efforts to emerge from the conflict as an independent state. But the ethnic Albanians have also come under increasing pressure from the international community to reckon with their own war crimes, including alleged organ harvesting." 

** For similar interpretations from an authoritative source, see Mary Ellen O'Connell, "Ukraine Insta-Symposium: Ukraine Under International Law".