International law is like a spider’s web, strong enough to catch small insects but large creatures fly right through.
Nevertheless, international law matters greatly in the conduct of world affairs. And in the long-term the impact of international law has been truly world-changing. This essay will look at what international law is comprised of and why it matters in reducing war and maintaining order.
First, however, I want to tie this discussion into real-world issues by celebrating the recent (March 13) Senate vote calling for an end (for the second time) to U.S. involvement in the horrific war in Yemen, which the United Nations in 2017 described as the world’s worst humanitarian disaster, and reaffirmed as such in 2018. The war in Yemen is led by Saudi Arabia and the United Arab Emirates (UAE), but abetted significantly by the U.S. since 2015 (yes, beginning under President Obama, but ramping up under President Trump) in the form of re-fueling of warplanes, weapons sales, diplomatic cover, and intelligence support.
Saudi forces struck a school bus in Yemen in 2018 that senselessly killed 40 schoolchildren, leading to a global outcry to end this conflict. But rather than doing our best to end the war and end the humanitarian disaster, we (yes, the U.S., us, with our taxpayer dollars) have been helping the Saudis and Emiris bomb Yemen for years now, making the humanitarian disaster even worse. This is what led the Senate to finally take action and pass a resolution to end U.S. support for the war in Yemen.
The Senate vote was largely along party lines, 54–45, but enough Republican senators voted in favor of the resolution for it to pass. Bernie Sanders, the lead sponsor of the resolution, said about its passage: “This is historic. For the first time in 45 years, Congress is one step closer to withdrawing U.S. forces from an unauthorized war.”
Sanders is referring to the U.S. War Powers Act, passed in 1973, that requires Congress to authorize any ongoing military involvement by the U.S. The White House can initiate some military actions under this law, but any conflict over 60 days requires a vote by Congress. Unfortunately, Congress has basically ignored this requirement in many conflicts over the last few decades.
The White House, predictably, “strongly opposed” the Senate resolution and asserted its right to offer ongoing support for the Saudi war in Yemen despite the resolution. When the House passes the resolution in April, it will go to the president’s desk and he will likely issue the second veto of his presidency at that time.
The resolution and the White House response concern only domestic law, however, and this is where a large part of the problem lies. International law is rarely part of the discussion in the U.S. — unless it can be used as a cudgel against our real or perceived enemies. The U.S., a large creature compared to the webby strands of international law, to be sure, flies right through that web pretty much whenever it wants to.
What is international law?
The United Nations forms the core of the traditional system of international law. The UN response to the Yemen conflict has, however, been strangely muted, criticizing the Houthis but not the Saudis or Emiris, and it seems clear that the Saudis’ outsize influence in foreign policy, based in part on its influence over U.S. foreign policy decisions (backed by actual or promised massive arms purchases, which President Trump has actively promoted), is behind this lack of a strong UN effort to condemn Saudi and Emiri actions in Yemen.
As far as I can find, the only UN document of significance that has criticized Saudi actions is a January 2018 report from a panel of experts to the Security Council, which called out the Saudis for some indiscriminate targeting that has led to civilians deaths.
Saudi Arabia is another large creature that can fly right through the web of international law. It’s a travesty that the UN has not taken any actions to even condemn the Saudi war of aggression in Yemen, let alone authorize a peacekeeping effort to end the conflict.
So let’s turn to what international law actually consists of. What are we talking about when we invoke “international law”? The primary sources of international law are generally described as follows (These sources of law are mirrored in Article 38 of the International Court of Justice, though I’ve added my own gloss here):
· Treaties between nations, with the United Nations Charter, as the primary treaty governing international affairs today;
· Customary international law, which are the behavior of nations in practice that may not have support in treaties or other documentation;
· General principles of law recognized by most nations;
· Decisions by international legal institutions like the UN Security Council or International Court of Justice.
The Geneva Conventions and other treaties form an important body of international law called “international humanitarian law.” These treaties govern the conduct of nations during war.
Another highly important document, even though it isn’t technically a treaty and is too often ignored, is the Universal Declaration on Human Rights, which became operative in 1948 when it passed the UN’s General Assembly.
The most important aspect of international law, however, is what governs military force. Under the UN Charter, which is the core treaty of the UN system, military action is only allowed in three circumstances: 1) when attacked by another party (Article 51); 2) when under the threat of imminent attack (under a broader interpretation of Article 51, this is referred to as “preemptive war”); and 3) when the UN Security Council authorizes action (Articles 42).
Who enforces int’l law?
Who monitors and enforces all the international rules codified in treaties, etc.? This is the crux of the matter, of course, since rules mean nothing without monitoring and enforcement.
The UN is supposed to enforce the UN Charter and to more generally act as an international forum for peaceful resolution of disputes through its various bodies. But there is, as most people are well aware, a glaring flaw in the UN system: the permanent veto power of the “P5” permanent members of the Security Council.
The Security Council is a 15-member body that is the primary branch of the UN system tasked with ensuring military security and peace. It has five permanent member states, essentially the major victor nations after World War II: the U.S., United Kingdom, France, the Soviet Union (now Russia) and China. Any of these nations can veto whatever resolutions they like.
What this means in practice is that the P5 nations can act without much fear of any official UN sanction because they can simply veto attempted sanctions of their actions. This applies also to “client nations” that enjoy the protective umbrella of P5 nations.
For example, Saudi Arabia, already discussed, is clearly a beneficiary of the U.S. protective umbrella at the UN and has been for decades. The same holds true for Israel, which the U.S. has protected also for decades by vetoing numerous resolutions calling out Israel for its patently illegal settlements in the West Bank. In fact, before S.C. Resolution 2334 in 2016, which President Obama didn’t veto (he merely abstained, allowing it to pass 14–0–1), the U.S. had vetoed every resolution critical of Israel since 1980. So Israel is also a nation that can generally operate unimpeded by the web of international law.
Russia didn’t bother to seek UN approval for its annexation of Crimea in 2014. And nor did the Security Council pass any resolutions condemning Russia’s actions, or even attempt to bring a resolution up for vote, largely because it was clear that Russia would veto any such resolution.
The Soviet Union was veto-happy for many years and Russia still holds the title for most vetoes. But since 1970 the U.S. has been by far the biggest user of veto power, as the following chart shows (source: Wikipedia):
The large majority of U.S. vetoes have concerned Israel and the conflict between Israel and the Palestinians, since it has been U.S. policy since the 1970s to veto almost any resolution put forward that is critical of Israeli behavior even though every nation in the world except Israel agrees that Israel settlements in the West Bank are illegal and need to be removed.
There are two types of resolutions passed by the Security Council that relate to violence between nations: non-binding resolutions condemning military action by a member state or other entities and binding resolutions under Chapter VII (which includes Articles 42 and 51 mentioned above) that may be enforced by member states.
The Security Council has authorized military action by the U.S., for example, in a number of cases in the last few decades, including in the first Gulf War in 1991, arguably Afghanistan in 2001, though not in actuality, and establishment of a no-fly zone and protection of civilians in Libya in 2011.
In practice, there is always substantial debate about what exactly was authorized and how far member states took such authorization. Military action in Libya, for example, led by France, the UK and the U.S., was authorized only to protect civilians thought to be under imminent attack by Qaddafi and his allies. However, the invading nations took this authorization far further and actually effected regime change against Qaddafi, which included his brutal killing (apparently unplanned).
The Libya fiasco, which has only become worse over time, was arguably President Obama’s biggest infraction against international law, though of course far less significant than President George W. Bush’s massive war against Iraq that started in 2003 and did not receive UN approval, despite the Bush administration’s efforts to obtain it.
The UN also holds criminal tribunals in special cases, including the International Criminal Tribunal for the Former Yugloslavia, which recently sentenced the former leader of Serbia, Radovan Karadzic, to life in prison for genocide, war crimes, and crimes against humanity for his role in various Bosnian massacres, after many years of trials and appeals.
The International Criminal Court is another important legal body, created by the Rome Statute of 1998 (an international treaty) that has jurisdiction in four areas: crimes of genocide; crimes against humanity; war crimes; and crimes of aggression. Aggression is defined as one nation-state taking military action against another contrary to what is considered legitimate under the UN Charter.
So, does international law matter?
While I’ve made it clear with many examples that strong states can often ignore international law in practice, I’m still going to make the case that international law matters. A lot. In fact, there is good data suggesting that international law has been one of the primary causes for a radical decline in global violence and war.
There is a strong correlation between the advent of the UN system in 1945 and a dramatic decline in global war-related deaths, as the figure shows (source):
Scholars have recently argued that starting with the Kellogg-Briand Pact’s attempt to outlaw war in 1928, slightly more than a decade before almost the entire world entered into World War II. What seemed foolish in hindsight has, upon reexamination, turned out to be the cause of a massive change in how nations govern themselves.
It turns out that after World War II we began to see a significant dip in wars of aggression, and we began to see the reversal or territorial conquests that happened even before WWII, going right back to 1928. Here’s the key passage, worth quoting at length, from the scholars’ article in the New York Times:
Since World War II, conquest has almost come to a full stop. The average number of conquests per year fell drastically — to 0.26 per year, or one every four years. The average size of the territory taken declined to a mere 5,772 square miles per year. And the likelihood that any individual state would suffer a conquest in an average year plummeted — from 1.33 percent to 0.17 percent, or once or twice a millennium.
In addition, our data suggest that the two decades after the Kellogg-Briand Pact went into effect — from 1929 to 1948 — also marked a radical shift in state behavior. Conquest didn’t stop during this period. But those conquests were almost all reversed. Huge amounts of land that had been seized before 1948 were returned to the countries that had originally held them.
Here’s an even more startling fact: The land returned was not simply territory taken after the beginning of World War II, in 1939. The reversals went back to a year that predated the war by more than a decade: 1928. So, not only did the United States, Britain and France take no new territory for themselves after the war (aside from a small minor adjustment of the border between France and Italy); the Allies also returned Manchuria to China, liberated Ethiopia from Italy and reversed Germany’s conquests throughout Europe.
So ideas — and laws — do actually matter even in a world where it too often appears that “might makes right.” The authors expanded their research into a book: The Internationalists: How a Radical Plan to Outlaw War Remade the World.
These scholars recognize that many other factors have been at play in these large-scale trends, of course, including nuclear weapons, the rise of free trade, and others. But they make the reasonable case that “these explanations are incomplete because they tacitly assume the idea of the pact that might no longer makes right.”
That flimsy web of international law does seem to matter after all.
Tam Hunt is a lawyer and a writer.