Monday, September 17, 2007
Why I Reject the Whole Notion of International Law
One of the main charges against the Israeli settlements is that they violate international law and are hence illegal. This raises the question of what is international law and what is the basis of its authority. In this matter, I must admit to being rather perplexed. I understand the notion of sovereign states making laws, that individuals who violate the laws of the nation in which they reside have done something illegal. I understand the concept that countries themselves and in particular their leaders, are said to have done something illegal when they violate their own laws. Even laws themselves can be illegal if they violate the constitution of the State. If President Bush would tomorrow declare himself President for Life and make Methodism the official religion of the United States then he would stop being the president and would have to be viewed as a criminal and a traitor to this country.
What does it mean when we say that countries have violated international law? Why should countries even be bound by international law? It would seem to me that every country should have the right to make its own laws within its own borders and be able to live by them without any outside interference particularly when this outside interference does not have any firm basis as to justify its own authority. Who makes international law? The United Nations, what legal power does it have over any given nation. The same thing goes for the Haig court. Besides for the fact that it is simply a political tool, why should any country have to give it any heed, particularly a country like the United States, which never agreed to accept such a court in the first place? To make matters worse, what people usually mean when they appeal to the notion of international law is simply their own personal moral judgment. Not that I have anything against people having moral values or acting upon them as long as they are willing to acknowledge that they are acting according to their values and that other people may have different ones.
The only sort of international law that I would recognize as having some sort of meaningful authority would be formal treaties and agreements signed by a country and the informal codes of conduct, such as how to treat prisoners of war, that countries operate under. Both of these things are very different from international law as we usually think of it. A country is bound to keep the agreements it signs not because of any international law but simply in terms of its own laws. A treaty signed by a government could be viewed as a law which it signs. A government that violates a treaty would be in the same category as a government that violates its own laws. In both cases these are internal affairs outside of the jurisdiction of any world community. Codes of conduct need not be regulated by any formal laws but simply through the threat of retaliation. If a country does not keep to generally accepted norms of behavior then other countries will react in kind. For example, if a country at war decides to start executing captured enemy soldiers then the other side will also start executing captured soldiers. This is not in a country’s best interests so countries can be counted on to treat prisoners with a basic level of humanity.
There are two possible objections that people might wish to challenge me with. I supported the invasion of Iraq, which was done in the name of international law and I continue to support the use of armed force against regimes that systematically violate the human rights of its own citizens. Another possible challenge is how would someone like me, who rejects the concept of international law, justify the Nuremberg trials. As a Jew and as someone who has grandparents who are Holocaust survivors clearly I should support the prosecution of Nazi war-criminals.
One of the major problems with President Bush’s approach to Iraq from the very beginning was that he framed the issue in terms of Iraq’s violation of UN sanctions and of international law. By appealing to the authority of international law, the UN and the world community, Bush left himself open to the charge that he himself was going against international law, the UN, and the world community. The left pounced and with mind-boggling efficiency labeled Bush the World’s Greatest War Criminal. This could have all been easily avoided if Bush from the very beginning had been willing to justify his actions solely in terms of national authority. America as a sovereign nation has the right to go to war against its enemies. America has the right to go after what it sees as it own self interest. It also has the right to act according to its own moral values even to the extent of invading countries that act against them. It is the old scenario of the Indians burning widows. Yes they have the right to engage in their traditional customs, but the British have the right to retaliate by practicing their own traditional custom of hanging people who commit murder.
This may sound strange to some people, but Nuremberg was a complete legal farce, which violated some of the most basic rules legal jurisprudence. The defendants at Nuremberg were being prosecuted by countries that they were not citizens of, by a court that had no jurisdiction over them and for the violation of laws that were not on the books when their actions were committed. Furthermore, the laws, which they were accused of violating, conspiracy to commit crimes against peace, conspiracy to commit war crimes, crimes against peace and war crimes, were written to the best of my knowledge, with the sole intention of having something to charge them with.
As a trial, Nuremberg was completely illegal. That being said, I believe that it was right thing to do. The Allies had every right to simply execute the leaders of Nazi Germany, without charging them or putting them on trial, simply as part of the war effort. More importantly, the Nuremberg court served to create a historical record of Nazi atrocities. The Allies had a moral responsibility to put things down for the record and in this they did an admirable job. Instead of calling it a trial, though, they should have called it a fact finding commission. It would have made things much easier for us.
By tolerating the legal fiction of international law, we created a monster for ourselves. Anyone can lay claim to it and use it as they will. The same logic that allows one to go after Saddam Husain or Nazi war criminals allows Arabs to go after Israeli generals and politicians. In the end, international law becomes a weapon to protect those who seek to violate human rights.