International Law: Another Casualty of the Iraq War?
Foster, Charles, Contemporary Review
GEORGE W. BUSH and Tony Blair see themselves as the policemen of an international legal and moral order. They appear not to distinguish between legality and morality, which is fine if one happens to agree with their morality, but very frightening if one does not. Theocracies have always been the most brutal tyrannies. It is ironic, but not particularly surprising, that the policemen have, according to many commentators, broken the law themselves. If they have, they seem to have broken it so decisively and with such blithe immunity from sanction, that the law itself might not recover.
Public international law, which purports to regulate the relations between nations, is an amorphous, slippery thing. The traditional cynical view is that if you are a big, strong nation, international law does not exist unless and until you choose to believe that it does. And you will not choose to believe unless it suits you to do so. That view might be said to have been vindicated by the goings-on in Iraq. But an alternative, and even bleaker view is that it is no longer possible even for a self-interested manipulator of the international legal order to appeal to that order because it cannot be said with a straight face that the order exists any more.
It is classically said that there are four sources of public international law. They are set out in Article 38(1) of the Statute of the International Court of Justice. This provides that the Court, when adjudicating inter-state disputes, should apply:
(a) international conventions, whether general or particular, establishing rules expressly recognised by the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognised by civilized nations;
(d) subsidiary means for determining rules of law, judicial decisions and the teachings of the most highly qualified publicists of the various nations.
When one comes to use these principles to judge the legality of the intervention in Iraq, there is one immediate and obvious problem: the legal justification given by the US was entirely different from that of the UK. The UK relied on previous resolutions of the United Nations; the US relied on the doctrine of 'pre-emptive self-defence'. Now it is of course perfectly possible for there to be two valid legal reasons for doing something. But it is slightly odd that two allied armies could stand 'shoulder to shoulder', but their lawyers could not.
Looking first at the UK's reason: the UK's reliance on the UN's resolutions falls really within the 'international conventions' head. The contention that the resolution relating to the previous Iraq war of 1991 might still be alive came as a surprise to most mainstream international lawyers. The application of these resolutions was really a matter of construction, but almost nobody else agreed with the UK's reading. And if one is relying for one's authority on something the Security Council has said, one might think that what the Security Council thought it meant might be conclusive. The Security Council was clear: a further resolution was needed before Iraq could be invaded.
The UK has effectively said that if it, opposed by the rest of the world and by the resolution-making body itself, thinks that the law justifies intervention, then the law justifies intervention. At its best this is arrogance: but it is really rather worse than that. If the law is only what every person thinks it should be, then there is no law at all. There is simple, old fashioned anarchy.
Now the US's reason. The US would presumably say that the doctrine of pre-emptive self-defence falls into one or all of categories (b), (c) and (d) in Article 38(1). The doctrine is not a new one. There have been previous attempts to import it into the canon of international law, notably by Israel, which sought to deploy it to justify its pre-emptive air-strike on Iraq's nuclear facility. …