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The international law we do not use

While international law aims to promote peace, powerful states continue to celebrate violence and killing, as well as supplying the arms that allow for it

Curtis Doebbler , Thursday 2 Jun 2011
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Although one may not realise it judging from recent events, the use of force in international relations is prohibited by the most fundamental international law.

As a complement to this prohibition, all states are solemnly enjoined to resolve their disputes peacefully. In addition, states and their international organisations are prohibited from interfering in the domestic affairs of other states as this can lead to conflict between states.

These basic rules of international law are found in the UN Charter and legally bind states whether they are acting as solo sovereigns or through collective entities like the UN Security Council.

It is true there are exceptions, but these are very, very narrow. They are the exception not the rule, and there are only two.

First, states may use force to defend against an attack. This does not include the suspicion that a state might be attacked, but only an actual attack, according to the UN’s preeminent judicial authority, the International Court of Justice.

Second, the UN Security Council may authorise the use of force under Chapter VII of the UN Charter, but only when the strict rules of this chapter have been followed. This means that the Security Council must make a determination based on demonstrated facts that all means of peaceful settlement have failed. In fact, the UN Charter says the Council must determine all “measures not involving the use of armed force” have failed, before it can authorise the use of force. Moreover, any use of force authorised by the Council must remain under the strategic direction of the Security Council Military Staff Committee.

These rules are the ABC’s of international law and any international lawyer, statesperson, or diplomat who does not understand them is not worthy of his or her post.

Yet, it would seem like an extraordinary number of our leaders, our international lawyers, statespersons, and diplomats do not understand these basic concepts of international law. Instead, they twist the law in ways that run so contrary to its vital object and purpose that it is likely that few of the people who put the law down in writing in the UN Charter would even understand how we have abused their intentions.

The invasion of Afghanistan and Iraq and more recently the indiscriminate and gratuitous bombardment of the people of Libya are examples of how powerful states have committed themselves to using force in violation of international law to settle their disputes.

But these international “errors” that have killed millions of innocent people —at least a million in Afghanistan, at least 1.5 million in Iraq, and at least 30,000 in Libya —are even more egregious when one realises how these powerful states benefit monetarily.

Most of the Western allies in these wars are also arms traders. Even in Libya, where an arms embargo has been confirmed in the very same resolution authorising all necessary means, the Western powers not only kill Libyans from the cowardly height of 30,000 feet, or even with missiles or drones launched from hundreds of miles away, they are not able to satisfy their thirst for blood without also selling Libyans weapons so that they can kill and main each other.

And when indigenous Africans try to intervene to use their negotiating skills to resolve the conflict peacefully —as the UN Charter demands —these same powers undermine these efforts with war propaganda and by withholding resources. Although it cost less than even one small bomb to send the five willing African heads of states or governments to Libya to talk with both sides, the European Union withheld the needed funding for weeks and then declared the effort failed while it was still ongoing.

There are several reasons why the above situation passes unremarkably to most Western citizens.

First, most of us —in the US, for example, three out of every four persons —benefit in some way from what US President Dwight Eisenhower called the “military industrial complex”. If we really wanted to stop violent armed conflicts, logic would dictate that we would not sell arms. In Libya, the West has even been caught red-handed selling prohibited arms to the Libyans. It is alleged that landmines have been provided to both sides, indicating either the West wants to kill Libyans no matter their politics, or perhaps, and more likely, that we don’t care who is killed as long as money is made off the deal and Westerners can maintain their material standard of living.

Second, and just a serious, although portrayed in softer, even laudatory, terms, is the glorification of war. Today, as it has been for some time, it is not noble statespersons who are heroes. The pacifist is considered largely irrelevant, or at best a nice person with no real contribution to make to resolving international problems. This is despite the fact that it was the aspiration to convert the whole world to pacifism that inspired the creation of the United Nations.

Instead, we glorify war and the soldiers that kill usually innocent civilians in acts of aggression. One only need watch television for a few hours to see how state and private broadcasters pay tribute to violence through movies, documentaries and newscasts.

Third, being a soldier is a sign of courage. The most common route into politics in the United States is through the armed forces. It doesn’t matter if you were prosecuting an illegal war in Vietnam that resulted in the slaughter of countless Vietnamese.

If you search the Internet to find out “how many people died in the Vietnam War” you are only told about the 70,0000 odd US soldiers who were killed, usually by indigenous Vietnamese. In fact, these US soldiers were killed by ordinary Vietnamese facing an invading army with significantly superior weapons, and that rose up and risked their lives to drive the invaders from their country.

Nevertheless, in the West the myth remains that Western soldiers are heroes. To prevent this myth from being overshadowed by the truth, Western countries make sure their soldiers are not subject to international justice, even if it means protecting war criminals against their victims en masse.

Unless we counter these three social problems that lead to the propensity to use force, whether it is needed or not, to resolve international disputes, we are likely to continue down this deadly path.

In capitalist societies, which are driven by their profit margins and not their ethics, we need to make it more expensive to wage war, and to help others to do so, than to be pacifists. In many societies, however, merely returning to the indigenous principles of respect for other people and one’s environment would appear to be sufficient incentive.

While the allure of material wellbeing has gained during the period of the hegemony of the United States, the death and devastation that the United States’ way of life has brought upon the world is enough to make people reconsider. A major voice in this reconsideration has been that of indigenous people. Instead of consumption they advocate for sustainability and cooperation.

A sustainable and cooperative international economic order is incompatible with a significant military industrial complex, such as that of today. It is incompatible with any form of social relations that glorify destruction and killing.

An international order in which people live in peaceful coexistence is compatible with sustainable and cooperative forms of social relations. If the objectives of social relations are equality and equity of distribution, we move much closer to a world order of sustainability and cooperation.

There is a movement in this direction, but it is not lead by the most powerful and wealthy states in the international community, but by some of the smaller states, often those in which indigenous peoples are more prominent.

It might also be, as some voices from both the South and the North claim, that equality and equity are qualities and consequences of justice, which must also be an element of an acceptable world order.

While justice is a wisely prized value, it is one that only works when it is practiced fully. Full justice is justice applying to all. This means, on the one hand, that the most vulnerable must be protected, but also that the most prominent — and often most wealthy and powerful —violators of the law must be punished.

The example this would set seems obvious. If the United States, for example, understands that it cannot use force against other countries, then it is likely that other countries will not use force to resolve their disputes.

In contrast, if the United States and its wealthy Western allies continue to use force as a means of international relations that can be deployed at will to resolve international disputes, then it is likely less powerful and less wealthy countries will mimic this practice.

Moreover, justice only works when those dispensing it come with clean hands. In today’s world, those dispensing justice on behalf of rich and powerful states are often those whose hands have the deepest and most entrenched bloodstains.

To be able to resume with any credibility our common efforts to achieve the lofty principles of the UN Charter that urge us to reject the use of force, we need to find our heroes elsewhere than among those who kill and main other human beings. Those who advocate peaceful dispute resolution should be seen as the statespersons to be admired.

However necessary one may believe the carnage of war to be, it —and its purveyors —should be viewed as at best sometimes necessary evils. Military intervention must be viewed as only necessary in the most exceptional of cases, after all other forms of dispute resolution have been exhausted without success, and then only when exercised with the greatest degree of control possible and only under the most meticulously implemented constraints.

We have created a system with such safeguards in the Charter of the United Nations. We merely do not use it honestly.

The writer is a prominent international human rights lawyer.

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