Select Committee on Foreign Affairs Minutes of Evidence

Annex 1

Uncorrected Excerpts of Remarks Delivered at a Conference Organised by Ashurst Morris Crisp at the International Institute of Strategic Studies on 18 November 2003



The Future of International Law: Reconstruction and Beyond

  I am the tail end of what before me has been a very eminent panel of speakers. And the Chairman has certainly chosen topics for us all which are quite daunting in their breadth. In my case it is The Future of International Law: Reconstruction and Beyond. There is the spectre, in the corner of my eye, of the great Dutch jurist, Hugo Grotius, who in 1625 produced the seminal foundational work of international law De Jure Belli ac Pacis, The Law of War and Peace—an apt title for this evening's proceedings—a work painted on a clean palate which set the foundation for the system of international law that we know today. To speculate, in 30 minutes or so, about the future of international law from this point against the background of recent developments in Iraq is a challenge. I propose to attempt to do so by offering a number of observations across a range of issues—staying away from the minutiae of the debate about the legality or otherwise of the resort to force by the United States, United Kingdom, Australia and others on 20 March. This aspect has already been canvassed in detail by other speakers this evening and there are folders of published materials that explore every inch of this debate. My remit, rather, is the system of the law. Is it irredeemably damaged? What are we to make of the trenchant debate that has been ranging across hitherto obscure provisions of the United Nations Charter?

  The notice of this seminar is provocative, almost alarmist. What does the future hold for international law? Is international law irreparably damaged? Is there a trend towards anarchy, terrorism and sectarian violence? The image conjured by these enquiries is of a previously ordered and stable society of law which, in a turn, finds itself on the brink of collapse. I do not want for a moment to minimise the seriousness of the situation that we face in Iraq and the very considerable challenges and dangers posed by the resurgence of the kind of global terrorism that is reminiscent of the wave of aircraft hijackings that racked the 1960s and 1970s. The response then, at least in some measure, was a resort to law with the adoption of the Tokyo, Hague and Montreal Conventions of 1963, 1970 and 1971 respectively concerning acts committed on board or against aircraft. The situation now, I believe, is more difficult—the threats are greater; there would seem to be a greater polarisation of opinion. But, I am concerned that, in our zeal to fasten on to international law and set it so firmly as the yardstick against which everything is to be measured, we have in mind a utopian vision of the law relating to the use of force and a mistaken appreciation that there is a comfortable concordance between law and practice in this area that is just waiting to be discovered, if only we could control a few rogue elements such as a US Administration driven by a neo-conservative ideology bent on creating the conditions of the American Century.

  I do not believe that there is such a comfortable concordance just waiting to be realised. I am deeply uncomfortable with the neo-con view of the world and have grave misgivings about aspects of the events of the past months. But I have also long been persuaded of the inadequacy of the law and of international institutions in this area to coherently address and control the use of force. And this is not simply a shortcoming in the practice of States whose conduct ought to be brought into conformity with the law. It is also a shortcoming in the law. There is a Utopian streak to the law on the use of force coupled with a quite unreal certainty as to its contents in many of the commentators who deploy it with pugilistic abandon at every turn in the debate. Utopian visions are not bad. A vision of a better world in which force is subject to law would be the wish of most. But, if there is a malady that is in need of medicine, it is best that we see things as they are.

  Writing 30 years ago, one of the great British scholars of international law, Professor now Sir Derek Bowett of Cambridge University, examined the law and practice relating to the on-going series of attacks and reprisals in the Middle East. International law, in the form of the UN Charter, as we now all know so well, contemplates only two forms of use of force—self-defence and action authorised by the Security Council. The reprisals by Israel that Professor Bowett examined fell into neither category and were therefore unlawful on their face. Only few of them, however, were condemned by the international community—those that were demonstrably disproportionate and not otherwise justified by a prior illegal act. Professor Bowett's conclusion—that there was a credibility gap in the law; that the letter of the law was not adequate to the task in hand, not because Israel simply flouted the law and should have been brought to book. But because the law did not adequately address the circumstances for which it was deployed. It was simply not credible for the law to deny a right to take action in the face of a perceived and real threat.

  This credibility gap in the law relating to armed reprisals described by Professor Bowett 30 years ago finds reflection in other areas of the law relating to the use of force. The United Nations Charter—the nearest thing we have to a constitutional document in the international community—contemplates only two forms of permissible uses of force, self-defence under Article 51 of the Charter and UN authorised action pursuant to other provisions of Chapter VII of the Charter, that part of the Charter that is concerned with enforcement action concerning threats to the peace, breaches of the peace and acts of aggression.

  The scheme of the Charter to deal with such threats to the peace contemplated a rather more elaborate, co-operative arrangement than in fact operates today. Articles 39 to 42 of the Charter provide for the Security Council to make a determination of the existence of a threat to the peace, breach of the peace or act of aggression and then to take such measures, including economic sanctions and the use if armed force, as may be necessary to address that threat. Article 43 goes on to provide that "all members of the United Nations . . . undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities . . ." Article 45 goes on to provide that "in order to enable the United Nations to take urgent military measures, Members shall hold immediately available national air-force contingents for combined international enforcement action." Articles 46 and 47 provide for a Military Staff Committee to assist the Security Council in planning for the application of armed force.

  By and large, these arrangements have not been put into effect. While there have been notable examples of  Blue Helmets—United Nations forces—taking enforcement action (as opposed to peacekeeping operations), this is the exception, not the rule. In many instances, where action has been taken to address, for example, situations of humanitarian catastrophe which demanded a military response, it has been taken by States acting individually, or in concert, contorting the scheme of the Charter to achieve a desired result. This was the case with the Indian intervention in East Pakistan in 1971 in the face of widespread social and political unrest. This was the case with Vietnam's intervention in Cambodia in 1978, ousting Pol Pot and his murderous Khmer Rouge. This was the case with Tanzania's intervention in Uganda in 1979 ousting Idi Amin. There are other examples. In each case, although the States concerned formally explained their actions in terms in the Charter scheme of law relating to the use of force, the actions in question could not be readily shoe-horned into this framework. Yet by and large this conduct was accepted without adverse comment. It is the credibility gap once again.

  Article 51 of the Charter preserves the "inherent right of individual or collective self-defence if an armed attack occurs . . . until the Security Council has taken measures necessary to maintain international peace and security". It goes on to provide that measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Council.

  This short provision embodies all that the Charter has to say on the right of self-defence. It says nothing about the necessity of self-defence or of proportionality or of action that may be permissible in response to the use of armed force that, because of its scale and effects, does not amount to an "armed attack". We know, of course, from the language of "inherent right" and the jurisprudence of the International Court of Justice, that we must look to customary international law to discern the other conditions for the lawful use of force by way of self-defence and that these include the requirements of necessity and proportionality. It is less clear, however, in the hard cases, what precisely is the content of these principles of necessity and proportionality. One of the difficulties in this area of law is that it is rooted in classical statements of the law which, while comforting because of their age and credible because of the objectivity that comes with distance, are not the firmest of guides in the face of contemporary practice. The seminal expression of the law on self-defence, still relied upon today, was the agreed statement of it by US Secretary of State Webster in correspondence with Great Britain in 1841 in the Caroline Case. This arose out of the Canadian rebellion of 1837 which attracted the support of a large number of American nationals, a number of whom were engaged in raiding British vessels. The Caroline was a supply ship aiding these forces. On the night of 29-30 December 1837, British forces seized the Caroline, set her of fire and sent her over the Niagara Falls. Two US nationals were killed in the action. The correspondence arose some four years later when Britain sought the release of one of its nationals, McLeod, who was held in the United States on charges of murder and arson arising out of the incident. Secretary of State Webster's formulation of the principle of self-defence was accepted by Britain and quickly became an authoritative statement of the law more generally. It remains so today. Indeed, it was the subject of some discussion in the hearings of the Foreign Affairs Select Committee last October. It is worth quoting the extract in full.

"It will be for . . . [Her Majesty's] Government to show the necessity of self-defence, instant, over-whelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorised them to enter the territories of The United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it. It must be shown that admonition or remonstrance to the persons on board the Caroline was impracticable, or would not have been availing; it must be shown that day-light could not be waited for; that there could be no attempt at discrimination between the innocent and the guilty; that it would not have been enough to seize and detain the vessel; but that there was a necessity, present and inevitable, for attacking her in the darkness of the night, while moored on the shore, and while unarmed men were asleep on board, killing some and wounding others, and then drawing her into the current, above the cataract, setting her on fire, and, careless to know whether there might not be in her the innocent with the guilty, or the living with the dead, committing her to a fate which fills the imagination with horror."

  It is difficult to imagine a more eloquent statement and it is easy to see why it was so readily been adopted as the authoritative statement on the law of self-defence. It is less easy to see that it translates quite so readily to address situations in which the threat or use of force today may take the form of missiles and weapons of mass destruction. The permissible scope of anticipatory self-defence, if permissible at all, remains controversial, rooted as it is in the language of the mid-19th century. How does one judge the immediacy of a threat, necessitating action by way of self-defence, when one is faced by preparatory acts in the production of WMD that may become more dangerous to address as time advances? Is proportionality to be addressed simply by reference to the scale of the past damage or can one look also to the nature and scale of the threat into the future and take action appropriate to that threat. To crystallise these questions at the far end of the spectrum by reference to a real example, what are the ground rules for assessing the Israeli bombing of the Osirak nuclear reactor in Iraq in 1981. It was widely condemned as illegal then. There are many who have been reassessing since.

  There are institutional questions, too, relating to the Charter regime addressing the use of force. As I have mentioned, Article 51 of the Charter refers to the inherent right of self-defence "until the Security Council has taken measures necessary to maintain international peace and security". This language was the subject of an acrimonious exchange in the Security Council between the representatives of Argentina and the United Kingdom at the time of the Falklands conflict. The context was the prior adoption of Resolution 502 (1982) which demanded the immediate cessation of hostilities and the withdrawal of Argentine forces and called upon the two States to seek a diplomatic solution to the dispute. Before the Council, Argentina stated its readiness to abide by the resolution. The representative of Argentina went on to say:

"It is known that under Article 51 of the Charter unilateral actions must cease when the Security Council has already taken measures. There is a legal obligation to suspend self-defence once the Security Council `has taken measures necessary to maintain international peace and security'. The determination of whether such measures have been effective must be reached objectively and cannot be left to the arbitrary judgement of the Government of the United Kingdom itself . . . The exercise of self-defence which the United Kingdom is alleging could only have taken place in the absence of a resolution of the Security Council."

  The United Kingdom representative responded:

"By resolution 502 (1982) the Security Council demanded the immediate withdrawal of all Argentine forces from the Falkland Islands. Argentina did not withdraw any of its forces: it did quite the opposite. Argentina increased considerably the number of its forces in the days following the adoption of the resolution.

The resolution determined that there was a breach of the peace as a result of the Argentine invasion. This is made clear by a reading of the preamble. The results of that invasion were Argentine occupation. Accordingly, the breach of the peace still subsisted despite the adoption of the resolution. How, then, can it be seriously be maintained that resolution 502 (1982) amounted to a measure `necessary to maintain international peace and security'.

. . . the reference in Article 51 to measures necessary to maintain peace could `". . . only be taken to refer to measures which are actually effective to bring about the stated objective . . .'"

  The UN Charter does not permit humanitarian intervention by States outside the Charter framework. The Security Council may authorise the use of force for humanitarian purposes but action by States individually or collectively in the absence of such authorisation is illegal. This is the reason why States acting for humanitarian motives in the past—as in the cases I quoted earlier of India, Vietnam and Tanzania—invariably tried to squeeze their actions into the rubric of self-defence. But, according to the letter of the law, such actions are illegal.

  There was no UN authorisation in respect of the NATO intervention in Yugoslavia over the humanitarian crisis that unfolded in Kosovo. Justifying such action, the FCO prepared a note in October 1998 which was circulated to NATO allies. It is not long and worth quoting in full:

"Security Council authorisation to use force for humanitarian purposes is now widely accepted (Bosnia and Somalia provided firm legal precedents). A UNSCR would give a clear legal base for NATO action, as well as being politically desirable.

But force can also be justified on the grounds of overwhelming humanitarian necessity without a UNSCR. The following criteria would need to be applied:

    (a) that there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

    (b) that it is objectively clear that there is no practicable alternative to the use of force if lives are to be saved;

    (c) that the proposed use of force is necessary and proportionate to the aim (the relief of humanitarian need) and is strictly limited in time and scope to this aim—ie it is the minimum necessary to achieve that end. It would also be necessary at the appropriate stages to assess the targets against this criterion."

  For myself, I am completely persuaded by the necessity and correctness of this formula. It is, however, extra-Charter law that has emerged to deal with pressing circumstances that are not adequately dealt with by the Charter regime. It is the first real step taken by the international community to grapple with the credibility gap in the law in this area to make it more responsive to the sad exigencies of contemporary international life. Just as the exigencies of life that necessitated this development in the law are to be lamented, so, conversely, is the development in the law to be welcomed.

  I would make one more point on this element before teasing out two broader conclusions. The point is that the view has long been propounded that there are some dark corners into which the light of the law, and the civility that it promises, does not shine. The argument was advanced in 1963 by the former US Secretary of State, Dean Acheson, in respect of the Cuban Missile Crisis. He said as follows:

"I must conclude that the propriety of the Cuban quarantine is not a legal issue. The power, position and prestige of the United States had been challenged by another state; and law simply does not deal with such questions of ultimate power—power that comes close to the sources of sovereignty. I cannot believe that there are principles of law that say we must accept destruction of our way of life. One would be surprised if practical men, trained in legal history and thought, had devised and brought to a state of general acceptance a principle condemnatory of an action so essential to the continuation of pre-eminent power as that taken by the United States last October. Such a principle would be as harmful to the development of restraining procedures as it would be futile. No law can destroy the state creating the law. The survival of states is not a matter of law."

  The International Court of Justice acknowledged something in this argument in 1996 when it was faced with a request for an Advisory Opinion on the question of whether the threat or use of nuclear weapons was in any circumstances permitted under international law. Responding to the question by setting out in detail the many principles of law that would restrain the threat or use of nuclear weapons and make such action illegal, the Court nonetheless also concluded in the dispositif of its Opinion as follows:

"It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law;

However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake."

  Now I imagine that there may be some in the audience who are silently throwing up their hands in dismay at what I am saying, wondering where this leads and whether this is all cover for the proposition that what has gone on in Iraq ought to be legal even if, arguendo, it is not. This is not my thesis. My focus here is on the system of the law, not on the lawfulness or otherwise of the recent military action in Iraq.

  There are three points that I would make by way of conclusion. They are these:

  First, this is not new territory for international law. We have been here before many times. This is not to say that we should enjoy the old familiarity or be comfortable that this is a moment that will surely pass. It is simply to say that rumours of the death of international law, or even of its terminal decline, are much exaggerated.

  Second, if we are to grapple sensibly with the issues presented by the events in Iraq going back to 2 August 1990 when Iraq invaded Kuwait and set us on the path leading to the current events, we need to look beyond the ideology of the current dispute. Speaking at a seminar in New York on 13 January 2003, David Malone, a Canadian and President of the International Peace Academy commented on the negative reaction of the international community to what he characterised as "the shrill rhetoric of this administration". He went on as follows:

"From the very outset it looks as if this administration was looking for enemies, and if it didn't find any, it would create some. Starting with the Russian Federation and China, and when those two turned out, unexpectedly, to be useful in the first year of the administration, it then went on to demonise some other powers, notably in the president's State of the Union address as recently as one year ago . . .

The Clinton administration, which, by the way, had many failures to its credit, sought by and large in its international rhetoric to be soothing. The Bush administration has sought by and large the reverse approach, perhaps in an effort to convince the American public that the world is a dangerous place."

  We can all think of examples of the strident unilateralism of the present Administration that gives cause for concern—the denunciation of the Anti-Ballistic Missile Treaty in favour of a star wars programme, the un-signing of the Statute of the International Criminal Court, the rejection of the Kyoto climate change convention. These are all, and should be, in my view, sources of great disquiet. But, my point here is different. If we are to make a sensible appraisal of the current issues, we need to look beyond the rhetoric and ideology of the present conflict and focus also on its wider context and consequences.

  In a more reflective moment, I wonder what would have been the response to the current events had they been put in train by a different Administration; one with a greater eye for the building of coalitions, a greater sensitivity for diplomatic nuance and an inclination to build on past legal principle rather than craft an entirely new rhetoric of pre-emption. What if the declared attitude had been

    —  we must take steps to ease the plight of the Iraqi people in the face of 12 years of sanctions;

    —  we cannot, however, do so without maintaining a firm grip on the ability of Saddam Hussein to develop or deploy weapons of mass destruction;

    —  mindful of the events of Halabja in which 5,000 Kurds were gassed by the use of chemical weapons;

    —  mindful of the humanitarian catastrophe visited on the Marsh Arabs in the south of Iraq by the draining of the marshes, a catastrophe driven by a genocidal intent;

    —  mindful of the on-going, systematic and widespread human rights abuses by the Saddam Hussein regime;

    —  mindful of the persistent failure of the Saddam Hussein regime to show any sign of willingness to co-operate meaningfully with the United Nations; and

    —  therefore, we undertake this military action.

  No doubt there would still have been opposition, event trenchant opposition. But I would wager that the considered response would also have been very much more tolerant of the action being taken. I do not here propound such a view. I am simply suggesting that we should look beyond the ideology and the rhetoric of the present conflict.

  The third point, flowing directly from what I was saying earlier, is that we need, as lawyers, policy makers, diplomats and others—with deliberate consideration—to grapple with the new threats and to fashion legal principles that meet those threats and which do not simply rest on the mantra of the Charter regime. I regret very much that the United States found it necessary to propound a new doctrine—the doctrine of pre-emption—in the National Security Strategy of September 2002. There is something dangerous about inventing new language. It suggests that we are moving away from the established tenets of international law. And when the language is invented unilaterally, and by the United States, it justifiably gives cause for concern that the new policy based on the new language will be avowedly unilateralist as well. And this is problematic. But we cannot simply look past the National Security Strategy and ignore the issues which it addresses, particularly in a post-September 11 world. Let me read an extract:

". . . the United States can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today's threats, and the magnitude of potential harm that could be caused by our adversaries' choice of weapons, do not permit that option. We cannot let our enemies strike first.

. . .

For centuries, international law recognised that nations do not need to suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of pre-emption on the existence of a threat—most often a visible mobilisation of armies, navies, and airforces preparing to attack.

We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries. Rogue states and terrorists do not seek to attack us using conventional means."

  These are real and serious concerns. We must, of course, be alert to the erosion of the very edifice of contemporary international law. But we will not do the cause of law any service by sticking steadfastly to the scriptures of the Charter. The legal regime at the centre of which stands the UN Charter is well able to evolve and adapt itself to contemporary international circumstances. Re-conceiving the law will not, of course, be straight-forward. We delude ourselves, however, if we think that these issues can be avoided whilst at the same time maintaining the credibility of the law.

Daniel Bethlehem QC

Director, Lauterpacht Research Centre for International Law, University of Cambridge

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