|
|
Self-Defence |
 |
|
|
Americans, despite their constitution, which recognises international law, show little taste for obeying that global framework if it conflicts with the desires or prejudices of the domestic political structure. Instead, as in the case of Nicaragua and other small South American states it is overlooked or ignored; or in more serious cases is simply said to conform to the American view, rather than what is more or less universally understood elsewhere in the world. With so powerful a voice, backed up by overwhelming force, it is not surprising that, despite grumbles, other states acquiesce and some grovel. But it is no way to run a world which is going to get steadily less western and American-dominated as times passes. An important recent article in the Globe and Mail by Michael Mandel, a Toronto professor of international law argues that the American-British attack on Afghanistan is clearly illegal. "It violates international law and the express words of the United Nations Charter." He points out that "Despite repeated reference to the right of self-defence under Article 51, the Charter simply does not apply here". Article 51 in fact gives a right for a state to repel an attack in progress or imminent "as a temporary measure". That is a right only until the Security Council can take action to uphold or restore international peace and security. "Self-defence" is a catch-all phrase employed by powerful states that wish to do something that they cannot, or could not, get permission from the Security Council to do. It is not intended, in the Charter, to provide a pretext for states to go to war, for whatever reason. But that is just what is done regularly and what the United States and Britain are doing today. As the author points out - "The right of self-defence in international law is like the right of self-defence in our own law: It allows you to defend yourself when the law is not around, but it does not allow you to take the law into your own hands ... the right of unilateral self-defence does not include the right to retaliate once an attack has stopped. Nor does self-defence allow you to rouse your neighbours to join you in a private war against whoever seems to have disturbed your peace. "The Security Council has already passed two resolutions condemning the Sept. 11 attacks and announcing a host of measures aimed at combating terrorism. These include measures for the legal suppression of terrorism and its financing, and for co-operation between states in security, intelligence, criminal investigations and proceedings relating to terrorism. The Security Council has set up a committee to monitor progress on the measures in the resolution and has given all states 90 days to report back to it. Neither resolution can remotely be said to authorise the use of military force... Even the Security Council is only permitted to authorise the use of force where "necessary to maintain and restore international peace and security." And as the article points out, no one can pretend that bombing Afghanistan is doing that, even if it is declared to be "discouraging terrorism". Professor Mandel continues "Without the law, there is no limit to international violence but the power, ruthlessness and cunning of the perpetrators. Without the international legality of the UN system, the people of the world are sidelined in matters of our most vital interests. We are all at risk from what happens next." He is of course quite right in this. And we have seen it before, over and over again. Which is why we stagger from one crisis to the next. There are two or three sources of legality in the world. One is custom, enshrined in customary international law, which is defective partly because it has for centuries considered wars as a normal part of human life and partly because there is no regular way of bringing it up to date. Second is the United Nations Charter, which is also defective, principally because of its undemocratic nature, but which contains some useful pointers to outlawing the use of force. And third is the power of the Security Council to make decisions that in times of the breakdown of international peace, in effect, constitute new law. But like any system of law, the meaning of what has been laid down is sometimes, as now, an issue. At that time, in any civilized society, it is incumbent on warring parties to have recourse to a court to determine what the law does in fact say, rather than what the disputants believe it to say. So for that purpose we what we have still is the International Court of Justice. If there is truly a dispute about what rights of self-defence exist, the British and American governments should be prepared to ask the Court immediately for a ruling of the ICJ. Any other course means that we shall be left, as now, with might prevailing and law left helpless.
Source of Article |
 |
|
|