A Close Call for International Law

The recent debates in western capitals over whether to use military force in Syria left much to be desired. The arguments presented by proponents of the use of force revealed their lackluster appreciation of international law and the liberal international order that international law helps to codify.  This bodes ill for the future of the current rule-based world order that the West has a keen interest in maintaining.

Advocates for military intervention in Syria this summer invariably pointed to a prevailing international norm when making their case.  Military action, they argued, was the only way to enforce the worldwide prohibition against the use of chemical weapons.  This justification for war, while superficially attractive to those horrified by the use of chemical weapons, was and remains riddled with internal contradictions.  Although there may have been sound reasons to punish the Syrian regime, public international law offers scant basis for the type of action that liberal interventionist hawks insist such heinous crimes require.

Problems with the arguments posed by proponents of the use of force stem at least in part from the unsettled nature of international norms. Most basically, norms are patterns of behaviour that states anticipate of others and, in turn, reciprocate. There are many different types of norms. Beyond this, however, there is little consensus; scholars of norms disagree on fundamental points such as how norms emerge and spread, and how important they are in international relations.  In the sense that Barack Obama, John Kerry, Francois Hollande, Stephen Harper and David Cameron have used the term, however, it suffices to say that norms are rules that regulate the behaviour of states—in this case, a proscribed behaviour, the use of chemical weapons.

But what prevents states from departing from international norms?  After all, embattled strongmen like Syria’s Bashar al-Assad might, on occasion, feel inconvenienced by the prescription that they refrain from gassing their own people.  What is there to stop Assad and his peers from breaking with others’ expectations?

In fact, not all international norms are created equal in this regard.  Some norms are unwritten rules or conventions—for example, the expectation that states will roll out the red carpet for a visiting dignitary.  These norms do not constitute international laws and breaking them will likely not invite significant repercussions.  Nevertheless, some norms—even unwritten ones—are taken seriously by the international community.  Over time, certain ingrained practices among states have come to comprise customary international law—a corpus of binding rules similar to common law in domestic legal jurisdictions like Canada (except Quebec), Britain and most of the United States.

Moreover, many of the most important norms in international society have been codified, principally in the form of treaties.  Such are the origins of the norm against the use of chemical weapons.  The world’s states came together in the 1920s to draft rules against the use of chemical weapons after witnessing their terrible potential during World War I.  The resultant Geneva Protocol, a supplement to the earlier Hague Conventions on the laws of war, duly outlawed the use of chemical weapons.  Like the vast majority of international laws in force today, the Geneva Protocol was drafted by mostly western states.  Just 35 states were original signatories.  Twenty-two were European (including Turkey) while eight more came from the Americas.  Only Egypt, Ethiopia, India, Japan and Thailand represented Africa and Asia.  Of these, Egypt and India were under imperial rule and occupation by Britain.

Nevertheless, the 150 or so states that have joined the international system since the 1920s have found themselves bound by the norm established in Geneva.  New states are not exempt from old laws.  Syria, for example, which became free of French colonial rule in 1946, never signed up to Geneva’s augmented successor, the Chemical Weapons Convention (until the Assad regime recently undertook to do so, that is), but even this does not excuse Damascus from having to obey international laws put in place earlier in the century.  To the chagrin of bloodthirsty tyrants everywhere, the norm against using chemical weapons is part of international law.  The hawks are correct that this is a norm that must be adhered to.

But there is a catch.  International laws are different from national statutes like Acts of Parliament or legislation enacted by the United States Congress.  In the international system there is no police force and no criminal justice system, no world government to make sure that laws are implemented and enforced.  To be sure, national governments can submit their interstate disputes for arbitration at bona fide courts like the International Court of Justice, and there is a growing practice of individuals being hauled before tribunals like the International Criminal Court, but there is no international legal architecture for states themselves being investigated, arrested, tried and punished for breaking public international law.  Consequently, instruments of international law like the ones against the use of chemical weapons generally do not contain within them instructions for what happens if the law is violated.  There are no penalties enumerated, no punishments prescribed—and nobody empowered to execute them even if there were.

This calls into question the argument that intervention in Syria was necessary to “enforce” a particular norm.  What is there to enforce?  There is no clause in any international compact that defines military action as an appropriate course of action in such a situation.  To be clear, the point is not that Obama, Kerry, Hollande, Harper, Cameron and others were wrong to want to punish Assad for using chemical weapons, just that they were on shaky ground when attempting to justify such an action by invoking international law.

Indeed, it gets worse.  War itself is only legal under international law when waged in self-defence or when authorised by the UN Security Council.  This is made crystal clear in the UN Charter, probably the most widely ratified treaty in the history of the world and a supposed pillar of the modern international system.  As much as western liberals might now decry—and routinely break—the rules that their predecessors put in place in 1945, the law is still the law.  And under that law, military action in Syria would be illegal unless Assad attacks another state or the Security Council votes to authorise action against his regime.

This poses unavoidable problems for the arguments put forth by western leaders this summer.  Namely, is it acceptable to break one treaty—the UN Charter—in order to buttress compliance with another international rule?  While it is possible to imagine good arguments for why this might be the politic and even the morally correct course of action, no justification can be grounded in respect for public international law—the (arguably) emerging responsibility to protect notwithstanding.  Rather, it is unavoidable that attacking Syria would have undermined the rule of international law and weakened western nations’ credibility when it comes to upholding that law.

Consider just a few statements made by western leaders.  Canada’s Stephen Harper declared that “we are simply not prepared to accept the idea that there is a Russian veto over all of our actions.”  Britain’s David Cameron concurred: ‘if we’re saying there can only be a response if the UN Security Council votes positively,” Cameron surmised, “we are in fact contracting out our foreign policy, our morality, to the potential of a Russian veto. Now I think that is a very misguided approach.”

Again, these arguments are superficially attractive to western liberals.  It does chafe that the oppressive Vladimir Putin can influence Canadian, British or U.S. foreign policy.  It is enraging that leaders like Putin and Xi Jinping seem indifferent to the suffering of innocent civilians, prioritising norms of non-intervention over all else.  Yet it is nevertheless startling that the Prime Ministers of Canada and Britain felt emboldened to denounce the centrality of the United Nations when it comes to matters of war and peace and, by extension, question the whole system of international law that governs the use of military force, including the UN Charter that anchors it.  “International law is wrong,” they may as well have said.  “As such, we need not abide by it.”

Such a position, while partly understandable, is rife with danger—not least of all for the future of an international system characterized at least in part by liberal values.  For what is more foundational to liberal societies than the rule of law?  In his resignation speech to the British House of Commons on the eve of the 2003 Iraq War, former Labour Foreign Secretary Robin Cook argued that, while the United States might be able to “go it alone” in international affairs, Britain’s interests were best protected by “multilateral agreement and a world order governed by rules.”  Ten years later, Cook’s insight seems more prescient and valuable than ever.  With illiberal states like China and Russia wielding ever more influence on the international stage, western nations—this time with no exceptions allowed for an enervated United States—must decide whether their interests are best pursued through crude Machtpolitik or via a rule-based multilateral system.  Although the use of military force may appear expedient from time to time, the great strength of international law is that it at least has a chance of outlasting the west’s waning material preponderance.

International diplomacy, not military force, was Cook’s preferred method for dealing with Saddam Hussein’s Iraq.  Diplomacy also seems to be the route that Obama and his peers now find themselves traveling regarding Syria and, increasingly, Iran.  Indeed, Obama’s protestations that he never wished to see military action in Syria can probably be taken at face value; his preferred option always was for a diplomatic solution.  Coalitions of allies, dialogue with adversaries, genuine willingness to make concessions and the transparent application of commonly agreed upon rules—these are the contents of the liberal diplomat’s toolkit.  Each time diplomacy is used to resolve international disputes, the current rule-based international order is buttressed.  The order frays whenever diplomacy is discarded in favour of force.  Over time the fraying will become ruinous, its effects irrevocable.

Ultimately, western leaders must reconcile their understandable moral outrage over crises such as that still unfolding in Syria with the hope that international law might provide a rule-based way of containing the unpalatable behaviour of all states in the long-term—including in the realms of international security and individual human rights.  Liberal principles are fine things indeed—ideals worth fighting for, even—and it would be naïve to suggest that international rules can sustain a liberal world order without state power to back them up.  But military power must always be channeled through public international law if the world is to avoid the hammer blow that would be the loss of liberalism as a foundation of international order.

In their eagerness to enforce the norm against the use of chemical weapons, the current crop of western leaders forgot just how precious (and fragile) the liberal international order is.  In doing so, they risked scuppering support—both at home and abroad—for the system of rules that we rely upon them to defend.