- Reaction score
- 0
- Points
- 210
Ed Morgan is a professor of international law at theUniversity of Toronto.
--------------------------------------------------------------------------------
International law's muddy waters
--------------------------------------------------------------------------------
'To me it's impossible," said the lawyer for Jeremy Hinzman, the disappointed refugee claimant and U.S. Army paratrooper. "A war has to be either legal or illegal." But when it comes to clarity and a bright line between right and wrong, international law is always ready to disappoint.
Last week a Canadian adjudicator ruled that the legality or illegality of the conflict in Iraq cannot be raised in a refugee claim by a U.S. soldier who fled north in objection to the war. Perplexing as it may be to those who, like the soldier's lawyer, "find it hard to get [their] head around," it's just as well the adjudicator declined the invitation to wade through international law's muck. Refugee decisions should be based on whether the claimant faces a real fear of persecution on ethnic, religious, gender, or political grounds, and not on whether international law can provide a straight "legal" answer.
There is a number of ways to analyze the legal status of the war in Iraq. While article 2(4) of the UN Charter makes a blanket statement outlawing the use of armed force except as authorized by the Security Council, it is qualified by several factors built into the Charter itself. States continue to enjoy a right to self-defence, they can pursue regional actions with more narrowly based coalitions than those created by the Security Council and, under newly emerging law, can engage in armed intervention on a humanitarian basis where the target regime reaches intolerable levels of abuse.
During the past two years of debate over Iraq, the United States has argued that the Saddam Hussein regime acted illegally in breaching the 1991 Security Council resolutions that accompanied the liberation of Kuwait by UN forces, and that further military action against Iraq was pre-authorized. In addition, it has successively invoked each of the relevant exceptions to the article 2(4) ban on non-Security Council authorized force. As is so often the case with international legal matters, there has been no forum in which to satisfactorily accept or reject any of these claims.
Even if there were a decent forum, it is impossible to tell how any given argument about the use of force would come out today. Post-Cold War precedents -- Kuwait (Security Council action), Rwanda (forced regime change in absence of UN action), Kosovo (non-Security Council sanctioned regional action), Afghanistan (multilateral action in defence against terrorism), Congo (multiple regional actions intervening in civil war) and Ivory Coast (humanitarian intervention) -- point in different directions at once.
Indeed, it has long been recognized that article 2(4) and its attendant Charter rules are so open to question that the prohibition on force has itself been riddled with legal bullets and buried in legal argument. Even if that is an exaggeration by scholars seeking a headline in an otherwise turgid field, it is certainly the case that the waters of international law and the UN Charter are muddy. If a refugee adjudicator were to wade into them it is anyone's guess where, or whether, he would come out.
As for the Iraq war, the Security Council never specifically authorized it, nor has it specifically condemned it. In that, it is like the Kosovo and Afghanistan campaigns before it, although unlike those campaigns the 22 Arab Group states and the 115 Non-Aligned Movement states have declared the Iraq campaign to be a violation of international law. In the Security Council, the United States and the United Kingdom viewed Resolution 1441 of November 2002, which threatened "serious consequences" against Iraq, as implicitly authorizing the war, while Russia and China both declared the war to be a violation of the resolution and of the law. France, although widely perceived as aggressively opposing the U.S. administration and its long-arm-defence policy, left open the possibility of ex post facto approval of the war (such as it achieved for its own subsequent military intervention in Ivory Coast); its post-war assessment was that it "regretted that military action had begun without Council authorization."
Contemporary international law, it turns out, is a complicated business. Asking an adjudicator whether the Iraq war is illegal is a bit like asking whether O.J. is a murderer. It may look that way to many people, but the state criminal court said otherwise, while the federal court said that he violated the victims' civil rights. In both cases, the debates have made for good television and muddled legality.
No wonder it's hard for a lawyer to wrap his head around the issues. When it comes to international law, with its structural inability to divorce itself from politics and to clearly articulate right and wrong, who could?
--------------------------------------------------------------------------------
International law's muddy waters
--------------------------------------------------------------------------------
'To me it's impossible," said the lawyer for Jeremy Hinzman, the disappointed refugee claimant and U.S. Army paratrooper. "A war has to be either legal or illegal." But when it comes to clarity and a bright line between right and wrong, international law is always ready to disappoint.
Last week a Canadian adjudicator ruled that the legality or illegality of the conflict in Iraq cannot be raised in a refugee claim by a U.S. soldier who fled north in objection to the war. Perplexing as it may be to those who, like the soldier's lawyer, "find it hard to get [their] head around," it's just as well the adjudicator declined the invitation to wade through international law's muck. Refugee decisions should be based on whether the claimant faces a real fear of persecution on ethnic, religious, gender, or political grounds, and not on whether international law can provide a straight "legal" answer.
There is a number of ways to analyze the legal status of the war in Iraq. While article 2(4) of the UN Charter makes a blanket statement outlawing the use of armed force except as authorized by the Security Council, it is qualified by several factors built into the Charter itself. States continue to enjoy a right to self-defence, they can pursue regional actions with more narrowly based coalitions than those created by the Security Council and, under newly emerging law, can engage in armed intervention on a humanitarian basis where the target regime reaches intolerable levels of abuse.
During the past two years of debate over Iraq, the United States has argued that the Saddam Hussein regime acted illegally in breaching the 1991 Security Council resolutions that accompanied the liberation of Kuwait by UN forces, and that further military action against Iraq was pre-authorized. In addition, it has successively invoked each of the relevant exceptions to the article 2(4) ban on non-Security Council authorized force. As is so often the case with international legal matters, there has been no forum in which to satisfactorily accept or reject any of these claims.
Even if there were a decent forum, it is impossible to tell how any given argument about the use of force would come out today. Post-Cold War precedents -- Kuwait (Security Council action), Rwanda (forced regime change in absence of UN action), Kosovo (non-Security Council sanctioned regional action), Afghanistan (multilateral action in defence against terrorism), Congo (multiple regional actions intervening in civil war) and Ivory Coast (humanitarian intervention) -- point in different directions at once.
Indeed, it has long been recognized that article 2(4) and its attendant Charter rules are so open to question that the prohibition on force has itself been riddled with legal bullets and buried in legal argument. Even if that is an exaggeration by scholars seeking a headline in an otherwise turgid field, it is certainly the case that the waters of international law and the UN Charter are muddy. If a refugee adjudicator were to wade into them it is anyone's guess where, or whether, he would come out.
As for the Iraq war, the Security Council never specifically authorized it, nor has it specifically condemned it. In that, it is like the Kosovo and Afghanistan campaigns before it, although unlike those campaigns the 22 Arab Group states and the 115 Non-Aligned Movement states have declared the Iraq campaign to be a violation of international law. In the Security Council, the United States and the United Kingdom viewed Resolution 1441 of November 2002, which threatened "serious consequences" against Iraq, as implicitly authorizing the war, while Russia and China both declared the war to be a violation of the resolution and of the law. France, although widely perceived as aggressively opposing the U.S. administration and its long-arm-defence policy, left open the possibility of ex post facto approval of the war (such as it achieved for its own subsequent military intervention in Ivory Coast); its post-war assessment was that it "regretted that military action had begun without Council authorization."
Contemporary international law, it turns out, is a complicated business. Asking an adjudicator whether the Iraq war is illegal is a bit like asking whether O.J. is a murderer. It may look that way to many people, but the state criminal court said otherwise, while the federal court said that he violated the victims' civil rights. In both cases, the debates have made for good television and muddled legality.
No wonder it's hard for a lawyer to wrap his head around the issues. When it comes to international law, with its structural inability to divorce itself from politics and to clearly articulate right and wrong, who could?
