In defence of sovereignty
As lawyers call for curbs on national sovereignty to catch those responsible for the terrorist attacks on the USA, a UK barrister explains why now, more than ever, good legal principles need to be upheld.
International law may have its faults, but within it you can find a respect for national sovereignty.
The United Nations Charter prohibits states from intervening ‘in matters which are essentially within the domestic jurisdiction of any state’ (Article 2(7)) – and it enshrines formal equality between nations by proclaiming that the United Nations ‘is based on the principle of the sovereign equality of all its members’ (Article 2(1)).
Some lawyers have challenged the idea that sovereignty should be a cornerstone of international law. In the UK, Geoffrey Robertson, a QC who has fought many leading human rights cases, argues that ‘the movement for global justice has been a struggle against sovereignty’ (1) – even describing sovereignty as ‘the refuge of scoundrels like Pinochet and Milosevic’ (1).
Since the terrorist attacks on America on 11 September, calls for sovereignty to be curbed have become more widespread. Michael Mansfield QC called for a continuation ‘of the struggle to establish…international principles of law together with the institutions for their implementation’ (2). He made no direct reference to sovereignty, but he did conclude that an International Criminal Court (ICC) might be able to save Afghans from President Bush’s ‘Wild West’ desire to ‘wreak vengeance’.
The ICC – not yet established but likely to be up and running within a few years – would stand above nation states and decide who should be indicted for crimes against humanity. It would operate as a supra-national body acting in an area, criminal law, that until recently was always considered to be within the domestic jurisdiction of a state. Arguments in favour of using the ICC to try those responsible for the terrorist attacks on the World Trade Centre and the Pentagon also end up weakening the case for national sovereignty.
Indeed, in the wake of the terrorist attacks, much of the opposition to the Bush-Blair approach has coalesced around a vision of international law that seeks to undermine the sovereign equality of nations.
Geoffrey Robertson has gone further than most. Like Mansfield and some of the anti-war protesters, he wants to see Osama bin Laden brought before an international criminal tribunal (although, because the ICC does not yet exist, Robertson thinks that extending the jurisdiction of The Hague War Crimes Tribunal to cover Afghanistan is a more realistic option than sending bin Laden to any future ICC) (3). But significantly, Robertson also advances a view of international law that would make military action against Afghanistan lawful (4).
In order to render such military action lawful, Robertson first has to establish that the Taliban is responsible in law for bin Laden’s alleged acts. But recent judicial authority suggests that the Taliban would need to be directly controlling bin Laden’s military adventures for state responsibility to be established.
In the Tadic case (5), The Hague War Crimes Tribunal considered whether the acts of the Bosnian Serb authorities could be attributed to the former Federal Republic of Yugoslavia. It was accepted that the accused (Tadic) was an agent of the Bosnian Serb military – but the Tribunal found that the acts of the Bosnian Serb authorities could not be attributed to the former Federal Republic because there was insufficient evidence of its direct control of the Bosnian Serbs’ military operations. This conclusion was reached even though the Tribunal was satisfied that the Bosnian Serbs were almost completely dependent on the former Federal Republic for their war material.
Nobody has suggested that the Taliban had any control over bin Laden’s alleged role in the 11 September attacks. And despite Robertson’s efforts to argue to the contrary, a state that harbours terrorists is not responsible under international law for the actions of those terrorists.
Unbowed by the problem of holding Afghanistan responsible, Robertson goes on to argue that international law imposes a duty on the Taliban either to prosecute or extradite bin Laden – and that if it fails to do so international law permits the use of military force. But this argument is also flawed.
A similar issue arose before the International Court of Justice (ICJ) in 1949 (6), after British warships were damaged by mines during transit of the Corfu Channel, which was within the Albanian territorial sea – with Britain responding by entering Albanian territory and sweeping the Channel for mines. The British succeeded in establishing that Albania had known the mines were there and had failed to warn ships of their existence – but still they were found to have acted against international law by breaching Albanian sovereignty to remove the mines. The ICJ’s ruling was forthright:
‘It (the ICJ) can only regard the alleged right of intervention as the manifestation of a policy of force which cannot find a place in international law. As regards the notion of self-help, the court is also unable to accept it: between independent states the respect for territorial sovereignty is an essential foundation for international relations.’
No doubt because he recognises the existing legal barriers to armed action against Afghanistan, Robertson calls for ‘a more modern and more permissive legal justification for an armed response’. However, ‘self-defence’ cannot be invoked as a justification for Bush and Blair’s ‘war on terrorism’, as it can only be applied in response to the actions of states, not the actions of terrorists (that is, non-state actors).
On top of this, self-defence must be based on a necessity that is ‘instant, overwhelming, leaving no choice of means, and no moment for deliberation’ (7). This legal requirement clearly precludes from self-defence the planned intervention that Bush and Blair have drawn up.
Faced with the legal difficulties of attempting to justify the war on terrorism as an exercise in self-defence, Robertson puts forward a new legal justification for an armed response. It comes, he argues, from ‘the emerging human rights rule that requires international action to prevent and to punish crimes against humanity’. Such a principle would enable the international community to treat states as having the sovereignty of a parish council, allowing the international community to determine who has committed crimes against humanity and to take action against them.
Lawyers often say that bad facts make bad laws. Surely the atrocities of 11 September were so gross that any laws designed specifically to deal with them will be bad ones. It is precisely at times like these that good legal principles need to be restated – and sovereignty is a good legal principle that should remain central to international law, for three reasons.
Firstly, sovereignty is a bulwark against the abuse of international power, a power that the vast majority of states have no access to. As the response to 11 September shows, only the USA and a few states in Western Europe have the ability to shape world affairs. And a world system that is not built on the sovereign equality of nations is one that allows a few powerful states to abuse their power.
This can be seen in the current crisis, where in the space of a few days the US government moved from trying to ascertain who was responsible for the attacks to assembling troops in and around Afghanistan. No lawyer should claim an international system to be just when the most powerful state in the world can decide unilaterally to target one of the least powerful.
Secondly, sovereignty permits power to be exercised subject to a degree of accountability. When a regime acts oppressively towards its people, this can create some pressure against the regime’s continued existence. Accountability is most clearly expressed in democratic states, where a popular mandate to govern is required. But even in autocratic states, the will of the people is a force that cannot be ignored indefinitely – as the demise of many autocratic regimes over the decades has shown. America is a democracy, but it is not accountable to the people of Afghanistan – it acts on the basis of the will of the American people, and the will of the Afghan people is not even known.
Thirdly, there is the question of legitimacy. Power that is exercised by a sovereign state is usually seen as legitimate, while power that is exercised from outside is usually seen as illegitimate. And it is this desire for self-determination that has led to the collapse of empires and colonies over the past hundred years. Nothing that has happened since then suggests that people around the world are any more prepared to be dictated to by outside powers.
Indeed, if there is one feature of Afghan politics that has blighted the country over the past two decades it is meddling by outside forces – whether Russian, American or Pakistani. Such outside influences were seen as illegitimate and stirred the country to civil war and towards Islamic fundamentalism.
From a legal perspective, existing international law can deal with the terrorist attacks on America. Those responsible committed multiple acts of murder in America – and they should be tried and, if found guilty, sentenced in America in accordance with American law. In so far as they are currently residing outside of America they should be extradited. The Taliban has stated that it will not extradite bin Laden – but has also said it might if it were supplied with evidence of his guilt. This precondition is unexceptional: many states require the requesting state to establish a prima facie case of guilt before they will extradite a citizen or guest.
The Taliban’s precondition may not be a genuine excuse, but this still doesn’t mean that extradition is impossible – just that the process of securing bin Laden’s extradition may be a lengthy one. But if bin Laden and his network did carry out the attacks on 11 September there is no reason why the sovereign equality of nations should be sacrificed in order to bring them to trial. The Lockerbie suspects, for example, were tried, in accordance with Scottish law, after many years, without any breaches of Libyan sovereignty.
Difficulties between nations are most often the result of one nation disregarding the sovereignty of another. In the wake of 11 September it is not less sovereignty that is required, but more.
Jon Holbrook is a barrister in London. Email Jon.Holbrook@btinternet.com
Spotlight on Camp X-Ray, by Jon Holbrook
A pariah made in the West, by Jon Holbrook
War crimes: prosecute at any cost?, by Jon Holbrook
spiked-issue: After 11 September
(1) America is wrong to shoot first, then ask questions about guilt later, Geoffrey Robertson, Independent, 26 September 2001
(2) A dangerous isolation, Michael Mansfield, Observer, 23 September 2001
(3) America could settle this score without spilling blood across Afghanistan, Geoffrey Robertson, The Times, 18 September 2001
(4) America is wrong to shoot first, then ask questions about guilt later, Geoffrey Robertson, Independent, 26 September 2001
(5) Tadic Case, 1997 ILM 908
(6) Corfu Channel Case (UK v Albania) (Merits), ICJ Rep 1949 4
(7) The Caroline Case, (1841) 29 Brit & For St papers
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