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The threat of Russian intervention in Ukraine has caused American lawyers and diplomats to raise their voices about the legality of Russian military action in Ukraine. These complaints, however, are based more on political rhetoric and posturing than on an understanding of international law.
Americans who supported ostensibly illegal action against the people of Afghanistan and the people of Iraq that left an estimated 3 million Afghanis and Iraqis dead and whose perpetrators have gone with almost complete immunity are now claiming that Russia is following their example. Well, not exactly. Actually they are claiming that America was right and that Russia is wrong. Another more objective way of putting it is that these American lawyers and diplomats are claiming exceptionalism to international law while trying to argue that their version of international law applies to Russia. In other words, what the United States did to Afghanistan and Iraq, other can’t do to friends of the United States, even if the others are acting within the ambit of international law, when the United States was not.
Such hypocrisy is dangerous to the development and application of international law and to the international community as a whole. It is dangerous because it misinterprets international law and intentionally misleads the international community about what international is, how it comes about, and how it works.
Unlike the weapon in the hands of a few States that think they are special, international law is in reality the lowest common denominator among all States. It is the most fundamental rules of the international community that govern relations among all people. International law functions as basic rules that have been agreed between States for the conduct of their affairs in a way that allows people of diverse social, political, and economic understandings of the world to live together.
International law comes into being when States agree in writing to a rule of international law through the solemn undertaking they give by ratifying a treaty. This is not a simple act, but one which is usually done after years of careful consideration by dozens or even hundreds of lawyers and politicians. International law may also be created by the consensus of States expressed by their practice and their opinio juris. Again, diplomats, foreign ministers and heads of States or governments do not usually say that something is international law unless they have considered it pretty carefully. And even if one or a few States say something is international law that does not make it international law unless may other States agree and express their agreement by the same usually carefully considered practices and expressions of the opinion that a rule has become international law.
International applies because States apply it, and they do so most of the time in their interactions with each other. Violations of international are actually very uncommon. Contrary to what critics of international law often suggest, States respect international law in the overwhelming number of their actions. Its true that there is often little that can be done to force compliance with international law, but the fact that it is usually respected merely because it has been agreed upon is one of the most hopefully developments that the international community has witnessed over the past almost five hundred years.
It is also important to note that in contrast to the views of some Anglo-American judges, international law is superior to national law. It is superior because it rest on grater legitimacy than any national law. International law consists of rules that have been agreed by most of the people in the world or their representatives. Thus to view international law as subordinate to the national of any single State is to ignore the will of the many in favour of the will of a few elites. In a world order based on the equality of States, and more recently, the principles of the internationally agreed human rights, to treat the views of a few as superior to those of the many is pure and simple discrimination and cannot be tolerated.
Finally, like any source of law, a large part of the legitimacy of international law depends on its equal application to all. This means the same rules must apply to similar situations no matter which States are involved. This where the use of international law as merely another instrument of political rhetoric by American lawyers and diplomats is troubling. The new American effort twists international law into an instrument justifying the actions of the United States, while criticizing the actions of other States based misinterpretations or misapplication of international law. This is troubling because it undermines the rule of international law. Examples of the use of force by the United States bring the hypocritical and misleading use of international law by the United States in to clearer focus.
In using force against first Afghanistan and then Iraq in a period of less than three years, the United States acted in violation of article 2, paragraph 4, of the Charter of the United Nations. This provision of the Charter prohibits the use of force against the territorial integrity or political independence of another sovereign State. The bombing of Afghanistan can be seen from photos taken from above the Earth as having changed the topography of the country. The United States and its allies literally bombed parts of Afghanistan off the map. They also imposed their own proxy occupiers. In short, without a doubt, the terrible bombing of these two countries that killed millions Afghanis and Iraqis was a use of force against both the territorial integrity and political independence of these two countries. Moreover, article 103 of the Charter says that in the event of a conflict between obligations of States under the Charter and any other treaty, the Charter prevails. As virtually every State is a Member of the United Nations, virtually all States are bound by the Charter.
The only use of force that is allowed is that which is justified by an exception in the Charter. These exceptions are carefully enumerated. They include self-defense after a State is threatened with an armed attack and when the use of force is authorized by the UN Security Council. Previously writers like American Richard Lillich and Myres MacDougal had argued that the protection of nationals might also be an exception, but that is unlikely after the adoption of the Charter almost seventy years ago. In any case, none of these exceptions are applicable to the United States use of force against the people of Afghanistan or the people of Iraq with such horrendously deadly consequences. Moreover, there is no rationale reason why those responsible for these atrocities thus committed have gone unpunished. Such immunity indeed weakens international law.
In the case of Libya, the US and NATO claimed that it was authorized to use force by the United Nations Security Council. Russia and China challenged this assertion, claiming that even if the US and NATO were correct in interpreting UN Security Council resolution to authorize the use of force, the US and NATO action had gone much further than authorized. If a person authorizes his or her doctor to take out his or her appendix, it does not provide the doctor authorization to amputate both the patient’s legs. Nevertheless, this is exactly what the US and NATO did. The US and NATO bombed the infrastructure of Libya into the dark ages and imposed a proxy occupying government that has left the country a failed State. Before the bombing Libya was the richest country in Africa and on track to attain all the UN’s Millennium Development Goals (MDGs). After the bombing it is likely Libya will not attain any of the MDGs and it has become a failed State. Thus even if the use of force in Libya was authorized by the Security Council, it likely violated the most fundamental human rights of the Libyan people in a massive and widespread manner. Such a violation of Libyans rights is inconsistent with the Charter’s obligations in its article 55 and 56 that all States cooperate to achieve development and respect for human rights. Article 2, paragraph 4, of the Charter also prohibits the use of force “in an other manner inconsistent with the Purpose and Principles of the United Nations.” When force is used to secure the massive violations of human rights it is inconsistent with the Charter.
Syria is another example where international not only applies, but has been manipulated. As a sovereign State Syria is allowed to seek international assistance to maintain is public order and to provide security to its people. When civil war broke out in Syria it pitted an armed opposition against the government of Syria. States that supported the Syrian government, which of course still remained bound by its human rights obligations, were acting legally in providing the government of Syria the means to exert control over the country and to end the violence. On the other hand, States that provide weapons to the non-State actors in Syria are acting illegally because these non-State are acting to overthrown the Syrian government by the use of force and thereby interfering with the domestic affairs of Syria.
This is the case because these non-State actors could not justify their use of force. They were not recognized as a National Liberation Movement, which under international might have been entitled to use force to achieve self-determination. They were refused to enter into peace talks with the government to end the violence or even accept an amnesty offered by the government. Instead spurred on by foreign governments that provided them weapons the non-States actors in Syria were at best a foreign supported rebel group that wanted to change the government in Syria. For foreign States to support such a rebel group is a serious violation of international law that requires States refrain from interfering in matters that are essentially within the domestic jurisdiction of another State. This prohibition, like the prohibition of the use of force, is laid down in the Charter of the United Nations. It is found in article 2, paragraph 7.
But Syria has also been a good example of the use of international law. In an enhancement of the status of international law, the negotiations with the United States concerning US and NATO plans to intervene in Syria using force frequently referred to the applicable international law. The US alleged that its intervention, even if not authorized by the UN Security Council was legitimate. Russia countered by arguing it was in consistent with international law. The Russians pointed out to the Americans that the use of force against Syria, a sovereign State, was a serious violation of international law found in the Charter of the United Nations. They also pointed out that despite the United States claim that the use of force was legitimate the United States could point to no justification for the use of force that was generally accepted as international law.
Moreover, the Russian negotiators in Geneva pointed out that the United States had a legal obligation under international law not to arm non-State actors that were seeking to overthrown the sovereign government of Syria and that may have carried out the chemical weapons attacks of which the Syrian government was being accused. Some observers went so far as to point out to US Secretary of State John Kerry that he and the US President might be liable to prosecution for international crimes if they authorized the use of force against Syria without a clear UN mandate. In the event, the US backed down and accepted a negotiated solution. International law once again prevailed.
The recent situation in the Ukraine again raises questions about international law. Again, however, American lawyers and diplomats are trying to contort the law to make it fit their political agenda. Again, it is Russia that is left in the position of apparently defending international law.
While American lawyers and diplomats claim that the use of force against the Ukraine is illegal, they forget that it is being requested by the elected President of the Ukraine. When a the legitimate government of a State requests foreign assistance, it can receive it under international law. The provision of assistance to another government, even military assistance, is consistent with international law.
The case is much different when foreign governments interfere in the domestic affairs of a State to change its government because they do not like it. In Ukraine this is exactly what the United States and the European Union did, not merely by expressing their political opinion from abroad, but by sending money, weapons and advisers to the non-State actors who eventually stormed the government buildings and caused the elected-government to flee due to the use of force against it.
In such a situation Russia’s continued recognition of the elected government as a government that it is entitled to assist if it so requests, is consistent with international law. Such assistance must, of course, conform with the rules of international law relating to the use of force by the States against its citizens. However, when a State acts, even using necessary force, to restore the public order, which includes securing the elected government, then the State and those who support it, are acting in accordance with international law, not contrary to it. Any action from foreign countries to prevent Russia from assisting the elected government would itself be inconsistent with international law as an interference with a domestic affairs of a State that has requested assistance.
Now that the elected President of the Ukraine Viktor Yanukovich has requested Russian assistance, including military forces, in writing, United States President Obama is wrong in claiming that Russia is violating international law. In fact, action taken by the United States to prevent Russia from assisting the elected government in the Ukraine is likely a violation of international law to the same extent that the United States and European efforts to change the government of the Ukraine were inconsistent with the prohibition of interference in the internal affairs of the Ukraine without the permission of its government.
More problematic may a Russian intervention to protect its nationals in Crimea region of Ukraine. Although the United States tried to justify its invasions of Grenada and Panama on this ground, there is little support for such a justifications of the use of force under international law. Again, however, such an illegal action may be made legal under international law if it is requested by the elected government of the States. And again it is the elected President of the Ukraine that has requested Russia’s assistance to protect vulnerable Ukrainians.
More important and constructive for the development and application of international law are the indications from Russia that it wants to exhaust all peaceful means to resolve the situation in the Ukraine. As part of these efforts Russia is calling for the people who took power by force in the Ukraine to talk with the elected government and to express their assurances that they will honor the Ukraine’s international agreements as international law requires.
It is perhaps ironic that its is Russia, a superpower during the cold war that still possess one of the world’s largest weapons arsenals and armies, that is relying on international law to triumph over brute force. Nevertheless, it is a testimony to the resilience and relevance of international law that even States with the propensity to act on the mere basis of the use of force feel compelled to resort to international law to justify their actions. And it is even better when the legal arguments are based on a consensual understanding of the law shared by most States, even if some States claiming extraordinary privileges that run counter to the rule of international law, have to be increasingly ignored.
Curtis FJ Doebbler is a visiting adjunct professor of law at Webster University.