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 20 February 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 authorises it.
An exception to this rule can be found in Article 51 of the Charter: the right of self-defence 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 fifth 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 twelve 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 twenty 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.