Graham King

Solvitas perambulum

International law and the use of force


Although there is no judiciary or policing capability at the international level (aside from the limited actions and powers of the United Nations), there is a still an influential body of international law, respected almost all the time by almost all nations. The times when they don’t usually make the news.

A key point of procedure to bear in mind when dealing with international law, which means the law of the United Nations, is that decisions are voted upon by the fifteen members of the Security Council. To pass, a decision must have at least nine votes, including the votes of all five of the permanent members (China, France, the United Kingdom, the United States and the Soviet Union). This means the five permanent members may veto any decisions and are hence exempt from UN sanctions. This decision was taken in 1945 in San Francisco at the conference where the UN was created. Any attempt to police the behaviour of the permanent members of the Security Council would almost inevitably lead to major conflict and the destruction of the United Nations.

The composition of the Security Council permanent members and their veto powers means that the UN was largely incapacitated for the duration of the Cold War.

Day to day international law

International law ensures that day-to-day interstate relations proceed in a regular and ordered fashion. Like all good law, it is designed not to prohibit those actions which states (or individuals in a domestic setting) would normally choose to undertake, but rather to codify accepted modes of behavior; good law is facilitative, not prohibitive. It is a mechanism through which societies seek to achieve political objectives, particularly that of maintaining order.

The difficulty in setting down international law is in it being sufficiently conservative as to be of benefit to the powerful nations that will enforce it (and that would suffer limited consequences in breaking in), and sufficiently broad that most smaller states will deem it in their interest to abide by it.

States obey international law for several reasons:

  • Reputation: States seek to avoid acquiring a reputation as a law breaker (‘rogue state’) as they will then find it difficult to enter into legally binding agreements with other states. They will be cut of from the interactions of world trade and diplomacy.
  • Inherent value: States obey laws whose underpinning political rational is clear and which they agree with. For example rules on territorial integrity and inviolability of borders are of benefit to all nations.
  • Functional value: States obey the law because its overall contribution to maintaining international order is considered to be of value.
  • Interia: States become use to behaving in a fashion enshrined by law. Governing elites and bureaucracies becomes socialized into behaving in that way. Often principles of international law also feature or are incorporated into domestic law. In countries where those that formulate policy are answerable to wider public and media scrutiny policies that violate international law may be perceived as non-viable.

Even when states dis-obey international rules, they often maintain that they are acting within the law. Hitler entered Czechoslovakia in the name of self-determination; the USSR invaded Afghanistan claiming to be invited in by a newly established regime; the United States used force against the Dominican Republic claiming to be acting on behalf of the Organization of American States; and the United States attacked Iraq in 2003 claiming to be enforcing a UN resolution.

Repeated violations of international law can only undermine an order in which both the strong and the weak have a vested interest. For the former it en-shrines their dominant position although it often limits the blatantly self-interested policies they may pursue. For the weak it preserves their very existence since their survival is dependent not on defensive military capabilities but on the acquiescence of others. Given its dominant economic and military position it is remarkable not how often the Unites States of America exercises its influence on others, but how rarely.

International law and the use of force

The laws of armed conflict can be separated into jus ad bellum (the law towards war) which seeks to avert or limit the use of armed force in international relations, and jus in bello (the law in war) which governs and seeks to moderate the actual conduct of hostilities.

The jus ad bellum is founded primarily on Article 2 and Chapter VII (articles 39-51) of the United Nations charter. This insists that All Members shall settle their international disputes by peaceful means (Article 2(3)) and 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 2(4)). It allows for the inherent right of individual or collective self-defense (Article 51).

Many states claim that humanitarian intervention constitutes an exception to the prohibition on the use of force. However a 1973 study on humanitarian interventions found that most have occurred in situations where the humanitarian motive is at best balanced, if not outweighed, by a desire to […] reinforce socio-political and economic instruments of the status quo. Thus ‘humanitarian intervention’ is often used as cover for a breach of Article 2(4).

The jus in bello does not seek to diminish or obstruct the efficacy of fighting forces (which would be impossible), but to limit the barbarity of the conflict. Wars occur within the context of international relations, and a more ‘humanely’ conducted war will give the victor: An enemy that is less afraid of surrender, better relations with other states after the war and an easier task in the reconstruction of the disputed territory. However it should be obvious that a law of war can be no more than mitigatory in effect.

A criticism commonly leveled at the jus in bello is that in its attempt to humanise war it encourages it. This argument has a major flaw; the inherent cruelty of war does not prevent its occurrence. If this were so it is difficult to imagine how war could be contemplated after the carnage of Verdun, the Somme and Passchendaele. That war continues to occur is a reflection of the fact that rarely do those who start wars have to fight in them or otherwise become their victims. To deny humanitarian mitigation to those who find themselves engaged in combat would be cruel logic indeed.

The jus in bello is also called international humanitarian law. A division is often seen between Geneva law and Hague law. The Geneva is concerned with the protection of the victims of armed conflict. It is based primarily on the four 1949 Geneva Conventions. Hague law is concerned with the methods and means of warfare. It is based primarily on the 1899 and 1907 Hague Conventions.

Steps were taken in Rome in 1998 to setup an International Criminal Court, whose primary function would be the prosecution of crimes against the Geneva and Hague laws. The United States of America has indicated that it does not recognise the authority of this court, so it’s future is uncertain.