One of the most depressing aspects
of all the talk about Israel or the United States
destroying Iran's nuclear facilities (and much
else besides, no doubt) is the near absence of any
reference to international law. Even so
distinguished an expert as Anthony Cordesman seems
to take it for granted that there will be no legal
impediment to the US attacking Iran if a credible
threat of an attack fails to intimidate Iran into
making the concessions required to pacify Israel.
In my country, Britain, on February 20,
2012, members of the House of Commons spent five
hours debating whether the use of force against
Iran would be "productive" without dwelling more
than cursorily on the
legal aspects of the question.
How is one
to account for this blind spot? Are ignorance and
oversight to blame, or has respect for
international law gone out of fashion?
It's hard to believe that anyone who has
policy-making responsibilities that involve other
states, or who takes a professional interest in
such policy-making, can be unaware of what the
bed-rock of the post-1945 international system has
to say about war-making. The United Nations
Charter was drafted to be understood by a much
wider readership than international law-focused
lawyers. Paragraphs 3 and 4 of Article 2 of the
Charter could hardly be clearer:
3. All Members shall settle their
international disputes by peaceful means in such
a manner that international peace and security
and justice are not endangered.
4. All
Members shall refrain in their international
relations from the threat or use of force
against the territorial integrity or political
independence of any other state, or in any other
manner inconsistent with the Purposes of the
United Nations.
Read in conjunction
with Article 1, which spells out the Purposes of
the UN, and Articles 39 to 50, which detail how
the Security Council should react to "Threats to
the Peace, Breaches of the Peace and Acts of
Aggression", these paragraphs suggest that the use
of force by one state against another state is
only lawful if the Security Council authorizes it.
An exception to this rule can be found in
Article 51 of the Charter: the right of
self-defense if an armed attack occurs against a
member. But this is irrelevant to the Iranian
nuclear dispute at the present juncture, for
reasons set out most recently by Dan
Joyner.
These points are so easily
understood, and so clearly central to any proposal
to attack Iran for its nuclear activities, that
ignorance and oversight can hardly explain their
widespread absence from the public debate, or the
conspicuous failure of Western politicians to
inject a reminder of the legal dimension into that
debate.
My sense is that one must look
elsewhere for an explanation: foreign policy
communities in the US, Israel and the United
Kingdom have lost sight of the importance of
upholding international law to preserve the
post-1945 international system, which underpins
Western security and prosperity. They have
reverted to the belief in Realpolitik of an
earlier age: state military power is a legitimate
instrument for resolving disputes.
I am
reminded of one of the most striking episodes in
Thucydides' History of the Peloponnesian
War: the Athenian extinction of Melos - the
men massacred, the women and children sold into
slavery - because the people of Melos refused to
submit to Athenian demands. (At one point the
Athenian delegates say: "You know as well as we do
that justice is only at issue between equals in
power; the strong do what they can and the weak
suffer what they must".)
Thucydides saw
this cruel, disproportionate act as the moment at
which 5th-century BC Athens succumbed to hubris.
Drawing on an idea familiar to the Classical
tragedians, Thucydides implies that it was this
act that triggered the misfortunes that reduced
Athens to a has-been within 12 years.
Well, I must not press the analogy, which
is only potential at this stage. The point I
really want to make is that the West has much to
gain by harnessing its military power to respect
for the UN Charter and other universal legal
instruments - and quite a lot to lose by showing
disregard for international law.
I have
heard it said (but cannot verify) that at some
point president Bill Clinton observed that the US
had 20 years to create a global order in which
Americans could feel secure when the US no longer
had a quasi-monopoly of military strength. If this
is true, it suggests that president Clinton
understood how much even the greatest of powers
has to gain from fostering the rule of law at the
international level, and from resisting the
impulse to use force for selfish, non-collective
ends. No power has stayed on top forever.
Nearly 300 years ago, Montesquieu, a
thinker much admired by the founders of the Union,
wrote: "Political strength resides in renouncing
self-interest, hard though that is." Good leaders
have long known that selfishness corrodes the
loyalty and obedience of the led, as do injustice
and putting the interests of a few ahead of the
interest of the whole.
I am conscious how
quaint these words will seem to some readers. So
much of the contemporary foreign policy debate
seems to take place in a moral vacuum, with little
or no reference to justice and the rule of law in
international affairs. I am almost embarrassed to
be using such words.
Yet it seems to me
rational to suggest that the post-1945
international system is the best yet devised, that
it has brought great benefits to the West, that
its preservation requires commitment from the
leading power of the age, and that the leading
power has to marry justice to strength to retain
the loyalty of other participants. If I'm right,
treating Iran unlawfully is a bad option.
Peter Jenkins is a former United
Kingdom ambassador to the International Atomic
Energy Association (IAEA). The opinions expressed
are his own.
(Copyright 2012 Peter
Jenkins)
Used with permission lobelog.com,
Jim Lobe's blog on foreign
policy.
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