Who Killed International Law?

Crimea is another sad victim of the disturbing, long-term process that has gradually been pulling apart the cornerstones of international law, much like they were assembled after World War II. Who is responsible, and can we somehow reverse that process?

The principle of a ban on military aggression against sovereign states has long been considered an inviolable norm — one on which additional principles of the peaceful co-existence of states were established. True, this norm has not always been successfully realized; nonetheless, the general conviction dominates that such behavior is condemnable and that it is the duty of the United Nations Security Council to prevent direct military aggression. The Korean War and the first Gulf War demonstrate that it was possible to promote that norm effectively within the framework of international law.

After the Cold War, however, international law started to become a bit inconvenient. On the one hand, the principle of state sovereignty began to provide repressive authoritarian regimes with shelter from critical views from abroad. That became unbearable, especially in situations where a given regime was beginning to commit gross human rights violations, including the torture and slaughter of political opponents.

On the other hand, international law became uncomfortable for great powers, which did not wish to feel bound by rigid and limiting rules under the new circumstances. Unfortunately, even the United States played its role in this process because at the peak of its military and economic power, the dominant feeling among its political elites was that international law was nothing but a cloak for the weak and incompetent who wish to limit the deservedly strong and capable — who, moreover, only want to do the right thing. The military action against civilian targets in Serbia without authorization from the Security Council in 1999 already signaled that even the most important principles of international law are not unbreakable in a case of exigency. The lukewarm-to-hostile attitude of the U.S. and other great powers toward the establishment of the International Court of Justice was a further indicator of the coming fate of international law.

Do the Ends Justify the Means?

The definitive break came after 9/11, when the Bush administration, in the midst of a sense of threat, concluded that if international law were to act as a brake on the crusade against terrorism, it would be openly ignored. The military attack on Iraq, under false pretenses and without Security Council approval, was only the most emphatic assertion of this approach. In the scope of the so-called “war on horror and terror,” unmanned aircraft attacks, without the consent of the countries where they took place, became routine. Thus, even an American citizen was executed out of thin air and without a trial, which cast doubt on the very foundations of the U.S. Bill of Rights.

Even the much-celebrated and planned-out murder of bin Ladin was a flagrant violation of international law — can you imagine two American helicopters appearing in the middle of the night in Cernošice, and a team of paratroopers killing several people in a shootout, including the main target Ivo Rittig,* and disappearing without explanation? That the “war on horror and terror” is carried out against fanatical Muslim terrorists, who are often not even understood as human beings in the media, suffices to justify to a large segment of public opinion any methods employed, including good old-fashioned torture. From this perspective, legal considerations are merely an ineffective brake, especially since as a great power, no one will dare to bring charges against or even implicate you.

The disdainful attitude of the U.S. to restrictive international obligations is understandable, on the one hand because it simply limits the assertion of its superior force. On the other hand, it has turned out to be very short-sighted because it has subverted the very principles and norms that it would pay for the U.S. to be supporting in the long run. Especially in a situation where it is no longer such a dominant player, an adjustment of generally established international rules would be very opportune. Besides, the lack of respect for international law is used propagandistically in Arab countries for evoking anti-American sentiments, as this relatively typical cartoon should suffice to demonstrate.

One should add that the U.S. has hardly been the only one in recent years to emphatically disregard international law: namely, in the area of human rights. The discrepancy between adopted international conventions and the reality inside many countries is alarming. This phenomenon is so common that repressive regimes frequently even sit on the U.N. Human Rights Commission, which further undermines the authority of the whole system. Another typical trend is the suppression of criticism over breaches of international human rights norms in the interest of supporting economic ties, which is often left to nonprofit organizations.

An Overlooked Tragi-Comic Farce

Even if one hardly dares say it, to avoid other problems, let’s not forget that in this context, while appealing to the necessity of guaranteeing its security, Israel routinely ignores Security Council resolutions on halting the construction of settlements in the occupied territories, and, by all accounts, possesses nuclear weapons that are not subject to any international inspections regime. Russia’s steps have also actively contributed to the erosion of international law; for example, its membership in the Council of Europe and its signing of the European Convention on Human Rights come across as a tragi-comic farce. Its clear violation of the signed international treaty on the recognition of Ukraine’s borders is only the cherry on top of the cake of cynical mockery. If we’re willing to realize how far we’ve sunk, it’s good to recall the optimistic words of the Universal Declaration of Human Rights from 1948, the text of which is available here.

We can raise the objection that the whole idea of international law has been dubious from the beginning: It never really worked, and we need to reconcile ourselves with knowing that the people who determine things will always be the stronger ones. The current discrediting of international law is actually useful in this view because at least, no one has vain illusions. But is it really time to consign international law to the dustbin?

Certainly not, unless you’re a war-gamer and survivalist, for whom peace seems boring, and who would like to experience in person a bit of panic, starvation, the redeployment of massive armies, and the killing of neighbors. Moreover, a world without international law would be a truly sad place for life: It would arm itself more, and every government would acquire at least one or two nuclear weapons — finally we’d be on top of that perfidious nuclear-free Austria. Conflicts are not long in coming, especially when stronger states are certain of victory.

Order Is More Advantageous than a Jungle

The second important argument for the resurrection and strengthening of international law is the existence of the European Union – despite an array of big disadvantages and problems, it has at least managed to create a multinational space, where there is no need to fear armed aggression from other members. That is possible only through the creation and long-term maintenance of certain norms, on which all members agree. If it is possible in Europe, why should it suddenly be impossible to abide by at least some basic norms and principles worldwide? Is there really nothing that could be agreed upon? (A ban on using fighter jets against peaceful protestors, anyone?) That would certainly be an interesting discussion; from a longer-term perspective, the world’s great powers, ordinarily limited “needlessly” by international law, can nevertheless arrive at the verdict that a certain order in the international system is more advantageous for them than an unpredictable jungle.

Putin’s intervention in Crimea, in spite of signed guarantees of Ukraine’s territorial integrity, clearly shows where a world where someone killed international law is headed. Fortunately, ideas can occasionally be resuscitated and, with a bit of good will, even achieved in time. As a small European country, which benefits from the observance of international law, we have good qualifications for contributing to that process.

Kryštof Kozák is the chair of the American Studies Department of the International Studies Institute in the School of Social Sciences at Charles University.

*Translator’s note: Rittig is a politically influential Czech businessman associated with various scandals and alleged frauds.