International Law: a tool to delegitimate the military or a new form of legitimisation

Some regard International law as a tool to abolish war or - at least - to limit the risk of war.

Others see International Law just as a legitimisation of so-called "just wars", wars legitimised by the UN Charter. Besides these general positions, what role can International Law play in the peace movement's struggle against war? What difference did the International War Crimes Tribunal on former-Yugoslavia make? While it condemns war crimes, does it at the same time justify the military, as the military is the only force capable of arresting war criminals?

International Law is a reflection of power relationships, of interestes, of dominating values and of the structure of international politics. In contrast to national law, international law is not enforced by a central authority with a monopoly of violence. International law is increasingly codified, but there is also customary law deriving from long-standing and agreed practices. Therefore there is more space in international law for conflicting principles and opinions. And it is very common to violate the principles of international law without incurring any reprisals.

Today's international system goes back to the European system of states that was extended over the whole world since the sixteenth century. We can distinguish the classical period of international law and today's international law. One turning point has been the foundation of the League of Nations in 1919. In today's international law we find side by side the principles of the classical period and new still evolving principles, many of them embodied and articulated in structures, charters and declarations of the United Nations Organisation. A minor turning point are the 1990s. Due to the changes in the power balance, there is now a period of uncertainty, characterised by an intensified discussion about international law, by new interpretations and demands, and by changes in the conduct of international relations.

The new international law

During the nineteenth century there was a growing dissatisfaction concerning war. Increasingly war was regarded as too destructive, too disruptive, too devastating, too cruel, too costly and too uneconomic. Peace societies came into being. Pacifists, transnational non-governmental organisations, academics, politicians and even monarchs called for peaceful settlement of disputes between states, by arbitration and international courts for disarmament and the ban of certain weapons. A major event was the famous 1899 Hague Conference. This new thinking was reflected in state practice. Whereas in the 17th and 18th the major powers had fought wars against each other almost incessantly, after 1815 a growing number of states on both sides of the Atlantic managed to avoid war among themselves. Disputes were increasingly settled by arbitration or by international conferences.

Ius in bello

It is necessary to distinguish between ius ad bellum, the right to wage war, and the ius in bello, the rules of conduct in war. During the classical period of international law, certain rules how to conduct wars developed. These rules apply to all parties in a war, aggressors and attacked, without any regard to moral or political jugdments or preferences. The central concern is to avoid unnecessary cruelties and damages, to confine war as much as possible to the combatants and to protect non-combatants, medical personell, the wounded, prisoners of war and civilians.

Another feature of the humanitarian law of war, is the ban of certain weapons, beginning with dum-dum bullets in 1899 to the provisions concerning weapons of mass destruction. Most prominent today is ongoing legal and political debate about nuclear weapons.

A very telling example is the Convention relative to the Treatment of Prisoners of War: officers are accorded preferential treatment even in captivity: e.g. the command structure among prisoners of war is kept intact, officers get better accomodation, are privileged financially and do not have to work physically.

Such provisions reinforce the legitimacy of the military and of military structures. War is seen as a legitimate business where the enemy is to be respected as a business colleague. Obviously, the ius in bello is no tool to delegitimate war or the military. War in itself is not questioned but taken for granted. Unnecessary excesses are to be avoided, violence deemed necessary is legitimated. Some groups of human beings are to be protected as far as possible, but it is perfectly legal to kill, mutilate and imprison so-called combatants whether they have been recruited by force or not.

Ius ad bellum

The international law concerning the ius ad bellum has changed considerably. The League of Nations made the avoidance of war a prime objective. The Briand-Kellog-Pact of 1928/1929 outlawed any aggressive war. The United Nations Charter of 1945 went further by rejecting any aggressive use violence between states.

The UN Charter recommends the pacific settlement of disputes. But if the recommendations of the Security Council have no effect, if non-military measures have failed, the security council can authorise a war. According to the Charter of the United Nations war, is illegal with the exception of defensive wars and wars sanctioned by the Security Council. The central dilemma of this approach was described by Bart de Ligt in 1937 in a statement on the League of Nations:

"It is true that the League prohibits certain kinds of wars, that is to say, such wars are declared illegitimate by itself. Nevertheless, it allows others, so that at Geneva the distinguish between legal and illegal wars.... So far from liberating mankind form this plague, the League has even introduced new forms of it. For the ultimate sanction brought into use against a state which has been declared the aggressor, is still war. And so, in the name of all kinds of peace measures, war is sanctioned by the League as a war for Peace."

Human Rights

The UN have turned human rights into an important element of international law. The states are no longer sovereign concerning the treatment of their subjects. Concerning the rights of individual human beings, some international human rights conventions make sure that the military power of states and the ability to wage war is not undermined by human rights.

Concerning the forced recruitment of people for war, international law can make it more difficult to recruit children or conscientious objectors, but forced recruitment in itself is legitimated. The CO provisions in international human rights agreements do not proclaim a human right not to be forced to fight in war; instead they allow some exceptions to the general rule. Thus human rights are subordinated to military interests in international law. The states who want to preserve their power to recruit the population for war, are not the only ones who subordinate human rights to the perceived needs of the military.

Humanitarian Intervention

Within the new international law promoted by the UN, there is a tension between two principles. On the one hand the prime objective is the preservation of peace which inlcudes a ban on intervention in internal affairs of member countries. On the other hand the human rights conventions provide ample reasons to intervene in case of human rights violations.

Hitherto this has not been a major problem since the security council was blocked for decades and the UN charter allows the security council to use military force if "the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security." There is no provision for military intervention in case of purely domestic affairs.

Now there is enourmous pressure to change the UN Charter and international law in order to legalise so-called humanitarian military interventions. The pressure emanates most strongly from the NATO countries. They have conducted an illegal aggressive war without a mandate from the Security Council and are interested in having their behaviour legalised by international law. If this was the case, international law would endorse military interventions. Human rights would be more often used than in the recent past in order to justify wars. As could be observed during the Balkan Wars of the 1990s more and more non-governmental and human rights organisations are likely to demand and to support wars in order to further their aims.

One last point: as in national, the wording and meaning of international law are not the only factors to be considered. It is the power to interpret international law that matters most.

Introduction by Gernot Lennert

Concerns and issues raised during the discussion

How do we handle the tension between human rights and the intention to abolish war? The classical international law had a basic contradiction. If sovereignty is highest principle at the same time the right of one state to wage war, is uphold the sovereignty of others is violated. Each state has sovereignity, but nobody can control the legitimate right of other state to wage war. International law has conflicting principles having different rules for civil and international war. But who decides which one is a civil war and which one international?

Recrutiment to army is not considered as violation of human rights. In countries like Angola, family-members of those refusing to join army, are tortured. So there's a question of how recruitment can be a concern of human rights.

International Criminal Tribunal cannot work if only a few state participate. US do not participate fearing that their soldiers will be sent to court. No American soldier must be tried by a foreign court. At War Crime Tribunal in the Hague a very slow moving system is followed using the documents which are old. Additions from 1977 were not used in the court. U.N. General Assembly decisions are not precedential.

Sanctions are more severe, causing more deaths than biological and chemical weapons which are considered as weapons of mass destruction. Economic sanctions have caused a very high number of deaths in Iraq and Serbia.

Amnesty International is more a legalistic instituion than a moralistic one .

International law forbids destruction of power plant. After the first gulf war an agreement was reached that destruction of nuclear power plant is forbidden. But during the second gulf war the U.S General prided himself having bombed nuclear power station near Baghdad. Such agreements were violated in Yougoslavia as well , destroying dams, water tanks, refineries, chemical plants. The powerful will always justify their action.

Is it all negative?

It is very common to violate the priciples of International Law in any country. But the challenge before us is what strategy can be adopted internationally to use it as an useful tool. Many people feel that the Institute of International Criminal Court is an instrument to stop war, control those who violate human rights. Any law, national or international, is a tool to catch the authority. World Policy is not an acceptable idea to many. But ideas, attitudes, values changing can be part of the world policing. There can be some value in the idea of world peer pressure.

Summary by Saswati Roy

Upcoming WRI events

  • "From Kosov@ to Seattle: what is the role of nonviolent action?" seminar in Oxford, England, 29-30 July 2000
  • Nonviolence and Social Empowerment conference, 18-24 February 2001 in Orissa state, India