Text 2 The relevance of International Law

Although international law has deficiencies that should not lead to the conclu­sion that it is irrelevant or useless. States themselves find it useful and expend much effort attempting to shape its evolution.

The major reason why even the most powerful states adhere to international legal rules is because they recognize that adherence pays benefits that outweigh the costs of expedient rule violation. International reputations are important. Those who play the game of international politics by recognized rules receive rewards, whereas states that ignore international law or opportunistically break customary norms pay costs for doing as they please. Other countries will be reluctant to cooperate with them. They must also fear retaliation by those vic­timized, as well as the loss of prestige. For this reason, only the most ambitious or reckless state is apt to flagrantly disregard accepted standards of conduct.

A primary reason why states value international law and affirm their com­mitment to it is that they need a common understanding of the "rules of the game." Law helps shape expectations, and rules reduce uncer­tainty and enhance predictability in international affairs. These communication functions serve every member of the international system.

Formal institutions for rule enforcement do not guarantee compliance. No legal system can deter all of its members from breaking existing laws. Consequently it is a mistake to expect a legal system to prevent all criminal behavior or to assert that any violation of the law proves the inadequacy of the legal structure.

Similarly, we should not view every breakdown of international law as confirming general lawlessness. Conditions of crisis strain all legal systems, and few, when tested severely, can contain all violence. Since 1500, more people have died from civil wars than from wars between sovereign states. Today, with street crime in cities worldwide at epidemic proportions, states' domestic legal systems are patently failing to prevent killing. Thus, the allegedly "deficient" international legal system performs its primary job—inhibiting interstate violence—more effectively than the suppos­edly more sophisticated domestic systems.

The Legal Control of Warfare

Liberal reformers often complain that law clearly fails in the realm of behavior most resistant to legal control—conflict management. The ethical and jurisprudential just war doctrine from which the laws of war stem shapes discussions of contemporary public international law.

Just War Doctrines: The Changing Ethics Regarding the Use of Armed Force. Many people are confused by international law because it both pro­hibits and justifies the use of force. The confusion derives from the just war tra­dition in "Christian realism," in which the rules of war are philosophically based on morals (principles of behavior) and ethics (explanations of why these principles are proper). In the fourth century, St. Augustine questioned the strict view that those who take another's life to defend the state necessarily violate the commandment "Thou shalt not kill." He counseled that "it is the wrong-doing of the opposing party which compels the wise man to wage just wars." The Christian was obligated, he felt, to fight against evil and wickedness. To St. Augustine, the City of Man was inherently sinful, in contrast to the City of God; thus in the secular world it was sometimes permissible to kill—to punish a sin by an enemy (while still loving the sinner) to achieve a "just peace." This real­ist logic was extended by Pope Nicholas I, who in 866 proclaimed that any defensive war was just.

From this perspective evolved the modern just war doctrine as developed by such medieval secularists as Hugo Grotius, who consequently became known as the “founder of international law”. He challenged the warring Catholic and Protestant Christian powers in the Thirty Years' War (1618-1648) to abide by humane standards of conduct and sought to replace the two "cities," or ethical realms, of Augustine with a single global society under law. For Grotius, a just war was one of self-defense or punishment for inflicted damages. For war to be moral it must be fought by just means without harm to innocent noncombatants. From this distinction evolved the modern version of just war doctrine, consisting of two categories of argument, jus ad helium (the justice of a war) and jus in hello (justice in a war). The former sets the cri­teria by which a political leader may determine whether a war should be waged. The latter specifies restraints on the range of permissible tactics to be used in fighting a just war.

These distinctions have been hotly debated since their inception. Drawing the line between murder and just war is a controversial task. Yet just war the­ory seeks to define these boundaries. According to this legal tradition, some cir­cumstances in which lethal force may be justifiable are recognized under inter­national law, which also provides guidelines for sanctioned methods.

At the core of the just war tradition is the conviction that the taking of human life may be a "lesser evil" when necessary to prevent further life-threatening aggression. St. Thomas More contended that the assassination of an evil leader responsible for starting a war was justified if it would prevent the taking of innocent lives. From this premise, a number of other principles follow. The criteria today include ten key ideas:

1. All other means to a morally just solution of conflict must be exhausted before a resort to arms can be justified.

2. War can be just only if employed to defend a stable political order or a morally preferable cause against a real threat or to restore justice after a real injury has been sustained.

3. A just war must have a reasonable chance of succeeding in these limited goals.

4. A just war must be proclaimed by a legitimate government authority.

5. War must be waged for the purpose of correcting a wrong rather than for malicious revenge.

6. Negotiations to end the war must be in continuous process as long as fight­ing continues.

7. Particular members of the population, especially noncombatants, must be immune from intentional attack.

8. Only legal and moral means may be employed in prosecuting the war.

9. The damage likely to be incurred from a war may not be disproportionate to the injury suffered.

10. The final goal of the war must be to reestablish peace and justice.

These ethical criteria continue to color thinking about the rules of warfare and the circumstances under which the use of armed force is legally permissi­ble. However, the advent of nuclear and chemical or biological weapons of mass destruction that would violate many of these principles has created a crisis of relevance in just war doctrine. Fuzzy circumstances have materialized with the innovations of the revolution in military affairs (RMA). Because containment and prevention of violence have become the chief purposes of arms and armies today, leaders and scholars are struggling to revise just war doctrine to deal with the new strategic realities of contemporary weapons and warfare, especially in light of post-9/11 global terrorism.

Until 9/11, legal injunctions increasingly restricted states' rights to resort to war. The doctrine of military necessity still accepts the use of military force as legal only as a last recourse for defense. However, even though the initiation of war is no longer licensed and the intention to make war is still a crime (labeling those who start a war "criminals"), the pos­ture of a hegemonic superpower has the capacity to challenge this norm, and the Bush Doctrine pledging a preemptive strike against Iraq could make wars to prevent anticipated wars an acceptable legal practice as it was in past centuries.

New Rules for Military Intervention. At the end of the twentieth century, international law began to fundamentally revise its traditional prohibition against military intervention. In the wake of mass atrocities by governments against their own people and the recent wave of international terrorism, some powerful states have asserted the right to intervene with armed force. "The belief that governments have a right, even obligation, to intervene in the affairs of other states seems to have gained great currency".

The Westphalian sanctity of state sovereignty, purporting that what a gov­ernment does inside its borders, has collapsed. A relaxed definition of the con­ditions under which states have the right to use military intervention for humanitarian purposes is gaining acceptance in international law. The world has made a choice on genocide, declaring organized savagery illegal: "the last fifty years have seen the rise of universal endorsed principles of conduct" defining humanitarian intervention as a legal right to protect human rights by punishing acts of genocide and by interpreting intervention as "a spectrum of possible actions ranging from mild diplomatic protest to military invasion, even occupation".

International law, it appears, develops most rapidly when global problems arise which require collective solutions and legal remedies. The acceptance of intervention arose in response to the atrocities that grew alongside genocide and the need to rewrite the rules to permit interventions in an attempt to con­tain a problem in which international law was traditionally weakest—the con­trol of civil wars and terrorism, for which a global response was needed to con­tain their spread: “Attention to terrorism has led to increased cooperation and spawned new branches of international law… Treaties which demand that states either extradite or prosecute those accused of terrorism committed outside their territory have multiplied and are now copied in fields such as money laundering, corruption, and drug trafficking”.

The Rules for War's Conduct and the Expansion of Human Right Legislation. Laws regulating the methods that states may use in war (jus in bello) have also grown. These restraints include the principles of discrimination and noncombatant immunity, which attempt to protect innocent civilians by restricting military targets to soldiers and supplies. The laws of retaliation specify conditions under which certain practices are legitimate. One category, reprisals, stipulates procedures for military occupations, blockades, shows of force, and bombardments. Another category retorsion, provides rules for embargoes, boycotts, import quotas, tariffs, and travel restrictions to redress grievances.

The advent of a new set of legal justifications for military intervention to protect civilians is explained by the fact that noncombatants have become the primary victims in warfare. "World War I was mass-conscription, democratic war with a vengeance, but it still was limited in its direct effect on civilians. The ratio of soldiers to civilians killed between 1914 and 1918 is about 90-to-10. In World War II, the ratio was 50-to-50. In recent years, it has been 90 civilian casualties to every 10 military losses—a reversal of the World War I ratio".

To prevent the horror of civilian casualties and contain the mass slaughter that increasingly has taken place, the global community has radically revised the rules of international law. For the first time international law holds leaders of countries accountable for war crimes as war criminals. Traditionally, inter­national law prohibited leaders from allowing their militaries to undertake actions in violation of certain principles accepted by the international commu­nity, including the protection of innocent noncombatants. However, when vio­lations occurred, there was little that could be done except to condemn such actions. Another weakness was that traditional international law did not hold government leaders to the same standards to which it held soldiers and military officers who committed atrocities against enemy civilians and captured soldiers. Although international law set standards for both individuals and states, leaders were free from jurisdiction under the doctrine of "sovereign immunity," even when their commands flouted the laws of war. Though they might behave as criminals, leaders were treated with respect because they were the people with whom the global community had to negotiate to settle conflicts.

While many people and states still commit war crimes without facing pun­ishment, the resumption of war crime tribunals in 1993 signaled to would-be perpetrators the global community's intolerance for these atrocities. In 1999, the prosecutor's office of the UN's International Criminal Court (ICC) indicted seventy-seven people and arrested seven for crimes in Bosnia. Building on this step, a permanent world criminal court was created in The Hague to try leaders for the most terrible of mass crimes – especially acts of genocide such as those perpetrated by terrorists. A goal the UN had pursued for half a century became a reality: the world community now has an international court with teeth, through a treaty ratified by more than fourteen states (and all major states except China, Iran, and Iraq, and the United States, which in May 2002 "unsigned" the ICC agreement by informing the UN that the United States was pulling out, to the dismay of U.S. allies). Moreover, heads of state are now held accountable for war crimes against humanity, removing the protection they had received under traditional international law. Ever since The Hague tribunal's 1997 founding statute, a head of state can be charged with war crimes com­mitted at any time the leader was in office; even a sitting head of state can now be indicted for past war crimes. In fact, Slobodan Milosevic of Yugoslavia and President General Augusto Pinochet of Chile were indicted in 1999. The crimi­nalization of rulers' state-sponsored terrorism raises the legal restraints on the initiation and conduct of war to an all-time high, widening the scope of acts now classified as war crimes.

Law's Contribution to Peace. Cynics who contended that international law is irrelevant to the control of war overlook several dimensions of law's character.

• International law is not intended to prevent all warfare. Aggressive war is illegal, but defensive war is not. It is a mistake, therefore, to claim that international law has broken down whenever war breaks out.

• Instead of doing away with war, international law preserves it as a sanction against breaking rules. Thus war is a device of last resort to punish aggres­sors and thereby maintain the system's legal framework.

• International law is an institutional substitute for war. Legal procedures exist to resolve conflicts before they erupt into open hostilities. Although they cannot prevent war, they sometimes make recourse to violence unnec­essary by resolving disputes that might otherwise escalate to war.

The demonstrable capacity of pacific methods to reduce the frequency of war does not mean that international adjudicative machinery is well developed or functionally effective. Nowhere is this more evident than with the Interna­tional Court of Justice (ICJ), known as the World Court, which was created after World War II as the highest judicial body on earth. The World Court was an inactive judicial institution until very recently. Between 1946 and 1991 it heard only sixty-four contentious cases between states, rendered judgments on less than half of these, and handed down only nineteen advisory opinions, and over the last century has averaged only about three cases per year. Since 1991, how­ever, the ICJ has expanded its workload and considered cases dealing with many new issues. Even though only governments of states may apply for an appearance before the court (and are hesitant to do so because ICJ decisions are final, without a possibility of appeal), an increasing number have done so: between 1992 and 1995, the ICJ heard twenty-four cases, and the judicial activ­ity jumped to an average of sixteen cases each year between 1996 and 2002. The court also became increasingly active in responding to requests for advisory opinions; for example, in 1996 the ICJ rendered an advisory opinion on the highly controversial question of whether the use or threat of nuclear weapons could be declared illegal (answering that for the most part it should be).

World order in the twenty-first century will depend to a considerable extent on the uses to which states put international law. Alleged shortcomings of international law lie not with the laws but with their creators—states and their addiction to sovereignty as a legal right. The intentions of states acting individ­ually or in concert, and not the slow processes by which legal development grows, will be decisive.

Crucial in determining the role that international law will play will be which trend shall prevail—whether states choose to strengthen international law or insist on continuing to resist the compulsory jurisdiction to the World Court and other international tribunals. One path is displayed by the United States, which the Bush administration in 2002 pledged would continue to act in accordance to its so-called Connally amendment that reserves the U.S. right to determine which cases it will permit the World Court to hear. The U.S. preference is to try cases in U.S. courts and to let others use U.S. courts as global arbiters of global rights and wrongs (as happened in 2001 when five Chinese civilians sued former Chinese Prime Minister Li Peng in an American court for his role in the crackdown in Bei­jing's Tiananmen Square that killed hundreds of civilians). The trend toward use of U.S. courts to conduct criminal prosecutions of foreign terrorists captured abroad is accelerating as the United States is transforming itself from "global policeman" to "global attorney". A quite different path follows the tenet of liberal theory advanced by U.S. President Eisenhower, who counseled that it "is better to lose a point now and then in an international tribunal and gain a world in which everyone lives at peace under the rule of law." That approach has been accepted at the regional level; in the European Union, where the European Court of Justice (ECJ) has authority over state members and acts as a legal engine for the integration of the European Union; and in the European Court of Human Rights, under the Council of Europe, which exercises authoritative jurisdiction—in South America, the Inter-American Court on Human Rights has also considered cases.

The global community could, in principle, follow Europe's lead and strengthen international law's capacity. Still, many barriers remain to creating, as John F. Kennedy expressed liberal theory's hope, "a new world of law, where the strong are just and the weak secure and the peace preserved."

Comprehension