Rethinking International Law

By Armand Laferrere

It's time to change the way the UN does business, helps the needy, and manages conflict.

The power of self-delusion that convinces certain Western diplomats that such assemblies can indeed advance the cause of international law is not only wasteful, it discredits the very notion of international law itself. Substantial resources are squandered when the Bandar-logs of international legality endlessly repeat “approved elements of language” from one resolution to another without the slightest effect on reality. This gives rise to many a bureaucratic dream, such as the “World Summit on Information Society” to take place in Tunis in November 2005 in order to “develop a common vision and understanding of the information society and adopt a declaration and an action plan to be implemented by governments, international institutions, and all sectors of civil society.” This is an admirable goal indeed; however, no one would have complained if the cost of this summit had been spent in such a way as to bear actual results in our world.

But entrusting the preservation of international law to a majority that is either indifferent or hostile to the rule of law has another, much more serious consequence: The contempt these regimes rightfully inspire reflects on international law itself. For example, the appointment of Libya’s representative to the presidency of the UN Human Rights Commission in 2002 caused a minor scandal. But that nomination was just a slightly more outrageous example of a permanent contradiction within the UN system. For whatever objectives the UN claims to pursue—world peace, human rights, respect for international law, the rights of women and children, environmental protection, and so forth—it is condemned to ridicule when resolutions on these subjects are drafted by states that have proven a thousand times over their disregard for those same values. Indeed, when issues of urgent concern are reduced to a session’s worth of arguments by inept or detestable regimes, the gravity of those issues tends to be obscured. Thus, for instance, in December 2004, the UN representative from Sudan, a country soaked with the blood of both Darfur Muslims and southern Sudanese Christians, stood up at a session of the General Assembly to declare that Israel was building a “racist wall” and had “violated the UN Charter and international humanitarian law.” The effect of this hypocrisy did little service to the Palestinian cause, much less the victims in his own country.

The credibility of international law is even more seriously undermined by the growing craze of certain states and organizations for draping their political preferences in the toga of international law.

It is particularly difficult to elaborate a coherent system of international law, as compared to other legal systems, because of the complexities of its foundations. International law is based on a combination of elements: Treaties signed by hundreds of different states or international organizations, judgments and opinions rendered by dozens of jurisdictions, and customs that some states and organizations deem binding. Yet unless international law attains coherence, it will lack the credibility and predictability that are essential to any legal order.

There is no overarching international jurisdiction empowered to guarantee this coherence. Consequently, the responsibility falls to the actual interpreters of international law, such as the top bureaucrats of international organizations and the legal commentators, who must stick very closely to the texts and intentions of parties to the treaties while respecting the general principles of judicial interpretation. Above all, they must refrain from giving the impression of disguising their personal prejudices as law. Otherwise, since nothing prevents other interpreters with different prejudices from taking the same liberties, there is nothing to prevent several incompatible positions from being defined simultaneously as “international law.” This would either lead to the conclusion that there is no such thing as international law, or that, if it exists, it deserves no respect whatsoever.

In recent years, international organizations and states (including some that respect the rule of law in domestic affairs) have made any number of declarations in the name of “international law” that simply reflect the political preferences of their authors. For example, in December 2004 the International Committee of the Red Cross (icrc) announced its opinion that the treatment of al-Qaida terrorists held by the United States in Guantanamo Bay was “tantamount” to torture. This declaration shows that the ICRC, after having proudly claimed its absolute neutrality for 150 years, has now decided that the Bush administration does not deserve to be treated with the same objective dispassion that the Red Cross once showed to the Third Reich. It also shows that the ICRC considers itself better qualified to formulate the definition of torture in international law than the states entrusted to do so through international treaties.

In fact, the ICRC’s use of the word “tantamount” proves that its representatives had seen nothing at Guantánamo that contravenes American obligations with respect to the UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. This convention, ratified by the United States in 1994, limits the definition of torture to acts that provoke “severe physical or mental pain or suffering.” Rather, the Red Cross had seen practices that displeased it: Prisoners isolated, humiliated, maintained for hours in artificial postures, underdressed and chilled in an air-conditioned room, forced to endure strong light and loud music. Had the ICRC dropped the bogus question of legality and admitted that those practices do not contravene American commitments, officials could have engaged in constructive dialogue on the inhumanity of imposing a full blast of rock ’n roll and a chilly 55 degrees Fahrenheit on a jihadist captured in the Pashtun Mountains with a Kalashnikov in his hands. The Americans might have had some convincing arguments in defense of these practices: They could, for instance, have asked Afghani women to explain to the Red Cross what inhumanity really means. But the ICRC does not want to hear these arguments. It has determined instead to modify international law, hoping that the constant repetition of its allegation of practices “tantamount” to those prohibited by the Convention will eventually result in a new interpretation of that Convention altogether.

This new interpretation would stray radically from the intentions of the American legislators who ratified it. And that is exactly what the icrc wants to achieve. The Red Cross, an organization for whose existence and on whose practices no one ever voted, an organization that could well do some soul-searching of its own on how its absolute neutrality affected victims of despots in the past, now hopes to repeat its own interpretation until it acquires the force of common law. Convinced of its superiority over American democracy, it aims to usurp its prerogatives.

The determination to modify international law by imposing one’s own interpretation on it entails two dangers. First, it leads to the transformation of international law, which now stands at the intersection of multiple intentions of sovereign states, into a battlefield for interest groups lacking in the realism associated with the experience of power. Even if each group achieves but a fraction of its objectives, democracy will have receded and international law, tossed between the intentions of states and the ideological interpretations of interest groups, will become more chaotic and less respected.

Further, the reinterpretation of international law aimed at weakening certain states is particularly selective. The ICRC didn’t discover anything “tantamount” to torture in Syria, for example—just in the United States. The calls for “international legality” constantly repeated after the invasion of Iraq did not refer to the seventeen Security Council resolutions violated by Saddam Hussein, but rather condemned the invasion by virtue of which those resolutions were finally enforced. In many circles, the expression “international law” does not designate a judicial system at all, but rather a blend of purely political arguments aimed at the United States and its allies—especially Israel.

It should be tautological to state that a community cannot claim to be lawful if it does not treat all its members as equals before the law. In particular, it must not assign blame to any individual member out of proportion to the damage caused by that member. A community that refuses to hold certain members responsible for their acts, while at the same time punishing a scapegoat for the faults of the others, admits thereby that it refuses to abide by the law. Yet this is precisely how the United Nations treats Israel.

For starters, the UN created a permanent, plethoric administration solely in order to deal with the Arab-Israeli conflict, mobilizing resources many times greater than those allocated to countless other, far more murderous wars. These resources are thus lost, for example, to the people of Darfur and the Congo; unavailable to the displaced Azeris, starving Zimbabweans, and civil-war torn Nepalese; denied to the Chechens, Kosovo Serbs, and all other victims of wars that do not provoke the passionate interest aroused in the UN by the Arab-Israeli conflict.

On several occasions, the UN has created two different, contradictory laws—one for the Middle East, and another for the rest of the world. As a result, there are two definitions for the word “refugee” in international law, which is another way of saying that there is no international law on refugees. The first definition covers the 150 million refugees of the twentieth century; it requires a durable attachment to the land from which one was expelled, and its status is not transmissible to descendants. The other definition applies solely to the Palestinians who fled Israel in 1948. It requires only two years of presence prior to the date of departure, and it is unlimitedly transmissible to descendants. Furthermore, two UN organizations are dedicated exclusively to the welfare of refugees: the High Commissioner for Refugees (UNHCR) for the rest of the world, and the UN Relief and Works Agency (UNRWA) for the Palestinians. UNRWA’s sheer ineffectiveness is glaring: Nearly sixty years later, the refugees’ descendants are still living in camps, and have not been integrated into their countries of residence. Other refugees from the same period—Germans from the Sudetes and Pomerania, and Jews from Iraq and Egypt—would probably have the fortune of living under similar conditions if they, too, had benefited from UNRWA’s tender attention.