Law – what is it good for?

Before the war in Iraq started, many asked whether it would be lawful under international law without a second UN resolution. When the war started, many asked whether the belligerents were prosecuting it lawfully. And when the war is over, many will no doubt call for the prosecution of alleged war criminals (1).

This legalisation of war is a recent phenomenon. Consider the American war in Vietnam: almost 400,000 US troops saw active service in Vietnam between 1964 and 1973, where they fought a war of considerable intensity. Yet not once was the United Nations Security Council summonsed to consider whether the war was lawful.

In Vietnam, 18million gallons of ‘Agent Orange’ were dropped on forests and rice fields, and napalm was used against villagers suspected of supporting the Vietcong (2). US figures estimate that up to 415,000 civilians died during the war (3). Yet prosecutions for breaches of the Geneva Conventions were almost non-existent (4).

International law was largely irrelevant in most of the wars fought after 1945. UN resolutions for military intervention in Korea in 1950 and Iraq in 1990 show, by their novelty, that nearly all wars since the Second World War have been waged without UN authorisation. Prosecutions for war crimes have been equally scarce. After concluding their affairs in Nuremberg (1946) and Tokyo (1948), there were no war crimes tribunals until the UN created two to deal with conflicts in the former Yugoslavia (1993) and Rwanda (1994) (5).

The formation of these two ad hoc war crimes tribunals in the mid-1990s was a significant step in bringing international law into the arena of war. Before then, international law was a discipline studied by international lawyers that rarely impacted on nation states deciding whether, when or how to wage war. As Anthony Howard wrote in The Times (London) in March 2003: ‘[A]t the time of Suez (the views of law officers) were simply not asked for’ (6). The contrast between 1956 and today could not be more stark. Not only did British MPs demand to know what advice the Attorney General Lord Goldsmith had given on the legality of war in Iraq, but the UK government also took the unprecedented step of publishing a summary of it (7).

Many see the rise of international law as a positive development. After all, surely states should not engage in an unlawful war? And surely politicians and military personnel who sanction ‘war crimes’ should be put before a court? But this begs the question: what is international law?

In the run up to the attack on Iraq, there was a frenzied debate among lawyers, academics, politicians and commentators on whether the war would be legal without a second UN resolution (1441 being the first) that specifically authorised it. The only consensus that could be drawn from this earnest and dull debate was that there was no consensus. For every argument that war would be lawful, there was another saying war would be unlawful. For example, in the UK Guardian on 17 March 2003, the UK Attorney General’s advice was trailed under the heading ‘Attorney backs war’. A few pages later, QC Keir Starmer argued ‘Sorry, Mr Blair, but 1441 does not authorise force’ (8).

The absence of consensus should raise questions about whether there is any international law relating to the war in Iraq. When states cannot agree on the creation of a legal principle, then it cannot give rise to international law. International law is like any other law – its legitimacy is a precondition for its existence. With national law, this doesn’t mean that all laws are obeyed or accepted, but it does mean that the way laws are created is seen as legitimate by the people who become subject to them.

International law can only be legitimate if a sovereign state accepts that the body that created it has a right to create it. If the French government tried to impose a ‘law’ on people in Britain, we would not describe it as law at all, because France has no authority to impose laws on another sovereign state.

International law can and does regulate many international issues, including the treatment of diplomats, rights over the seabed surrounding a country, and travel by air, sea and land. Such issues are largely non-contentious. But when it comes to the right to wage war and issues arising from the conduct of war, these will always be contentious, and cannot be made the subject of international law. This much is clear from the way that international law is created: on a consensual basis, by sovereign states.

There are two sources of international law: custom law and treaty law. Customary international law arises from state practice where that practice is uniform, consistent and general, and providing it is coupled with a belief that the practice is obligatory rather than habitual. Self-defence could be considered an example of customary international law, because all states would, if the need arose, practise it and would recognise the need for it to be practised.

But the existence of a law of self-defence tells us little about the extent or interpretation of such a law. Some have argued that Saddam’s alleged stockpiling of weapons of mass destruction entitles coalition forces to exercise a right of self-defence by going to war against Iraq. But you don’t need a lawyer to see that this could never be a universally recognised and practised interpretation of the right to self-defence. In short, while such a view may (or may not) be justified politically, it cannot be justified legally. Since customary international law is an expression of rules that are not contentious, there could be no international law derived by custom that would judge the legality of war.

Then there is treaty law. This type of law is an express way of creating binding bilateral or multilateral obligations. Many treaties deal with the problem of defining the extent or interpretation of its obligations, by providing that disputes should be referred to an arbitrator or court. The International Court of Justice, an arm of the UN, often performs this role. But, as with custom law, treaty law is an expression of a nation’s sovereignty, in that the sovereign state has agreed to be bound by the treaty – and, if needs be, could withdraw from the treaty, too.

Much of the debate about Iraq has centred on two treaties: the UN Charter and the Geneva Conventions. Many take it for granted that the UN Charter authorises the Security Council to sanction war in Iraq – so the debate about legality has tended to focus on the interpretation of resolution 1441 and the 13 resolutions about Iraq that predated it.

But the UN Charter gives the Security Council a very limited power to authorise the use of force. The Charter prohibits the UN from intervening ‘in matters which are essentially within the domestic jurisdiction of any state’, except where the Security Council sanctions ‘enforcement measures under Chapter VII’ (article 2(7)) – which empowers the Security Council to decide what measures to take ‘to maintain or restore international peace and security’ (article 39).

The Charter was drafted after the Second World War, and it is against this background that the phrase about ‘maintaining international peace and security’ should be understood. Only by interpreting this phrase in an expansive and illegitimate way could the UN Security Council assume the right to sanction war in Iraq. By no stretch of the imagination could Saddam’s enfeebled Iraq have been described as posing a threat to international peace and security, and in the absence of such a threat the proviso in article 2(7) did not arise.

The UN Security Council would have had no more authority to sanction war against Iraq than it would to tell Britain how to carry out its refuse collection. The notion that the UN Charter empowers the Security Council to interfere in the internal affairs of a sovereign state is based on a false reading of the Charter’s provisions.

As with the UN Charter, the 1949 Geneva Conventions are now being interpreted in a way that was never intended by those who drafted them. Coalition forces have accused the Iraqis of breaching the Geneva Conventions in their treatment of prisoners of war (PoWs), and many have accused the Americans of breaching them with their treatment of detainees on Guantanamo Bay.

The Geneva Conventions’ humanitarian objective cannot set too high a standard at a time of inhumanity (war), so instead they seek to provide a minimal, but important, standard of care for PoWs and civilians during wartime. They oblige contracting states ‘to respect the conventions’, and in certain circumstances to prosecute or extradite those suspected of committing grave breaches of the conventions. Historically, this was more a statement of intent than a legally binding obligation – and only handfuls of offenders were prosecuted for grave breaches, prior to the formation of the two ad hoc war crimes tribunals in the mid-1990s (9).

In the debates about international law and Iraq, the very basis of international law is being undermined. If international law is redefined as a means of infringing state sovereignty, then it becomes a political tool. And as the lobbying of UN Security Council members by America and Britain shows, it will be a political tool of the powerful. If the Geneva Conventions are viewed as giving rise to legal obligations that may result in prosecutions before an international body, then states at war will have less interest in allowing the International Committee of the Red Cross access to PoWs: the limited humanitarian objective of the conventions will be thwarted.

International law is made by and for the benefit of sovereign states. Those who rely on international law to address issues on which there is no international consensus are really making political statements. When people say the war on Iraq is lawful, they really mean they support the war on Iraq – but they lack the conviction to give a political justification for it. And when people say the war on Iraq is unlawful, they really mean they oppose the war on Iraq – but they lack the conviction to give a political justification for opposing it.

On the eve of the Second World War, EH Carr wrote: ‘There is, among many people interested in international affairs, a strong inclination to treat law as something independent of, and ethically superior to, politics. “The moral force of law” is contrasted with the implicitly immoral methods of politics. We are exhorted to establish “the rule of law”, to maintain “international law and order”, or to “defend international law”; and the assumption is made that, by so doing, we shall transfer our differences from the turbulent political atmosphere of self-interest to the purer, serener air of impartial justice.’ (10)

Many of today’s politicians, academics, lawyers and commentators are tempted to abandon the arena of politics in favour of ‘the purer, serener air of impartial justice’. After considering the sources of international law, Carr concluded that ‘every system of law presupposes an initial political decision’ (11). We would do well to recall that the authority to make law is to be found in the political arena. And those who either support or oppose war in Iraq should argue their case politically, instead of hiding behind the fiction of international law.

Jon Holbrook is a barrister (email Jon.Holbrook@btinternet.com). He contributed the essay ‘Humanitarian intervention and the recasting of international law’ to the book Rethinking Human Rights: Critical Approaches to International Politics, Palgrave, 2003. Buy this book from Amazon UK.

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(1) See for example Indict, the group chaired by Ann Clwyd MP, that has been calling for the prosecution of Iraqis for many years; and ‘Illegal war’ could mean soldiers face prosecution, Robert Verkaik, Independent, 12 March 2003

(2) Crimes Against Humanity – The Struggle for Global Justice, Geoffrey Robertson QC, Penguin, 2000, p42

(3) Vietnam – Anatomy of War 1940-1975, Gabriel Kolko, Unwin, 1987, p200

(4) Lieutenant Calley was one of the few to be convicted and he was sentenced to life imprisonment for ordering his troops to ‘waste’ over 70 innocent villagers at My Lai. But the sentence was considered politically inappropriate and he served only three days in prison (see Crimes Against Humanity – The Struggle for Global Justice, Geoffrey Robertson QC, Penguin, 2000, p179)

(5) See Why The Hague is not Nuremberg, by Jon Holbrook

(6) ‘War against Iraq – the legal dilemma’, Anthony Howard, The Times (London), 11 March 2003

(7) Attorney backs war, Guardian, 17 March 2003

(8) Sorry, Mr Blair, but 1441 does not authorise force, Guardian, 17 March 2003

(9) Spotlight on Camp X-Ray, by Jon Holbrook

(10) The Twenty Years’ Crisis 1919-1939, EH Carr, Papermac, 1983, p170

(11) The Twenty Years’ Crisis 1919-1939, EH Carr, Papermac, 1983, p170