Why Can We Only Break International Law in order to Torture and Kill People and not in order to Help Them?

I was just coming home from driving my daughter to school, when I heard a story on NPR about how the US has been encouraging the opposition coalition in Syria politically, and in particular encouraging moderates to become involved, but that now the US is failing to make good on promises it has made to provide actual material support to the opposition, and through it to the suffering Syrian people, and in so doing is undermining those very moderate elements.  The reason for this failure to follow through on promises? Well, John Bellinger came on the radio to say that international law forbids the US from becoming involved in the internal affairs of another country, and that because the US still recognizes the Assad regime as the legal government of Syria, international law forbids giving material aid – even simply humanitarian aid – to the Syrian people through the opposition.

I’m less interested in whether Bellinger’s assessment of law is correct as I am with what seems to me to be quite a sickly ironic fact of US foreign policy. We only break international law when we think we have to kill people or torture them for national security purposes. Then the cause is important enough that international law doesn’t matter.  Iraq, Guantanamo, Bagram, assassinations in Iran, drones in Pakistan – the list could go on.  But when we are faced with humanitarian crises when our support could help thousands to live and NOT die – Rwanda, Darfur, Syria, etc. – we stay our hand, because of conservative interpretations of the niceties of international law. Now how sickly ironic is that, particularly in light of the human rights and humanitarian principles central to so much of modern international law?

If we accept that sometimes we will have to break international law in the course of practical international relations, I would be much happier about doing so in a case like supporting the Syrian opposition and Syrian people, than I am about doing so in order to disproportionately kill civilians in our ridiculously ill-conceived wars in Iraq and Afghanistan.

About these ads

11 Comments on “Why Can We Only Break International Law in order to Torture and Kill People and not in order to Help Them?”

  1. bkellman says:

    Dan,

    In light of your comment, I must no longer participate in this blog.

    –Barry

    • Dan Joyner says:

      Ok Barry. To be clear, this blog, like all academic blogs I’m aware of, is a collection of individuals. Nothing that any one of us says can or should be imputed to represent the views of any of the other individual bloggers. You’re free to disagree with me as I’m free to disagree with you. Perhaps it would be more constructive to engage on the blog rather than to quit the blog. But of course if that’s your decision, it certainly will be honored.
      Dan

  2. Erkan Akdogan says:

    Dear Mr. Joyner,

    I think this resembles the situation of the Indpendent State of Congo, what had happened there nearly a century ago and what the then international lawyers have argued thereon. To be frankly, the situations, States, Governments, and international law change, but the sensibility of international lawyers, thus the core of international law remains the same (“Question”). The Question remains, resists, persists everywhere.

    Maybe, I’d offer some help taking arguments from world-systems and world-economy analysis and literature, but I won’t try it here.

    We understand facts (and law) as it offered us in a context. So, e.g. when a State concludes a bilateral commercial treaty with another State we usually understand it to construct a legal relationship that intends to promote trade relations with each other. However, it is not always that simple. That particular treaty may well be a result of an imperial or rather hegemonic relationship between the two, the powerful one and the weaker one.

    To me international law’s (like law in general) real feature is that when it is needed (e.g. a dispute or conflict arises) it is not there, and when it is not needed it has already been absent.

    (Let me exaggerate) Therefore, when it is “not” needed, in fact, you (perhaps I should first define ‘you’, anyway) do not break international law, in extreme versions, you either create it, or you create a hole (to me, it is not really easy to distinguish norm-creation from a breach). Take the “humanitarian intervention” as an example. Humanitarian intervention may be enforced against Serbs, but not against others. And when it has been enforced that way, that behaviour, or rather omission becomes the problem itself. Why only against Serbs and not others? When international law was needed (for the Serbs) it was absent. Humanitarian intervention as executed v. Serbs has not been executed elsewhere, and it has been stated that that situation was an exception. Now, the argument was transformed to e.g. “responsibility to protect” only to result in confusion (at least in my opinion).

    In international law, we think and argue in abstract, doctrinal categories, therefore, e.g. when the Nuclear Tests Cases are discussed in a doctrinal/scholar work, it is taken from the perspective of legally binding ‘unilateral statements’, or unilateral acts of States, not ‘nuclear testing’. However, for an arms control legalist, this is not the case. And, this situation may be applied/transformed to the US position in the Syrian conflict. E.g. the perspectives and approaches of a human rights activist or a humanitarian law expert change radically when taking the Syrian conflict at hand. In fact, I believe that they talk different languages in such a hypothetical discussion and talking different languages avoid solutions.

    In sum, I propose to read cases contextually and try to discover deep-structures underlying the arguments in a given international legal case. This may prove to be a viable solution to our sensibility, to our senses, to our problems. May be or maybe.

    Sincerely,

    Erkan Akdogan

  3. I think Bellinger was just throwing out excuses and notions unrelated to the actual case.

    One problem with the Syria case is that much of the support offered by the US so far has ended up in the hands of the Salafist insurgents and not so much the Syrian people. So the US is trying to manage the perception – if not the reality – that it is “supporting Al Qaeda” – even though it is due to its policies against Assad and its refusal to pressure Saudi Arabia and Qatar to stop arming the insurgents.

    In any event, since the intent of the US is to see Syria degraded to the point where it can not be an effective actor in an Iran war, I suspect withholding aid to the Syrian people is on a par with the sanctions on Iran which are explicitly targeting the Iranian people. The more chaos and economic pain Syria endures, the more likely – as the US sees it – that Assad’s support will wane. Unfortunately for the US, it is likely to be the reverse: the more chaos the insurgents cause, the more the Syrian people seem to be turning against them, as the Iraqis did against Al Qaeda in Iraq.

    I think the US has little interest in following international law either to help or hurt people unless it jibes with “US interests” – which basically means unless it’s profitable for the corporate masters or enables politicians to throw power around.

  4. yousaf says:

    Linking this back to arms control, Dan please read John Mueller’s “Atomic Obsession” (if you have not already) — how countering proliferation with military means is more harmful than the proliferation itself!

    Great book.

  5. yousaf says:

    In fairness, Dan, I would say that what you describe is not so much a result of USG maliciousness as it is of incompetence, lack of foresight, bad planning, wishful thinking etc.

    Paul Pillar at National Interest (ex-CIA) is a great src of info on this, as is Steve Walt.

    Also, if you have not read it, can’t recommend highly enough Packer’s “Assassin’s Gate”:

    which shows perfectly the difference between maliciousness and incompetence.

      • Dan Joyner says:

        Thats another great one by Walt. Love that guy.

      • There’s a lot of other “inconvenient truths” that could be spoken besides those, like:

        1) Yes, we politicians are controlled by our campaign contributors and lobbyists from special interest groups like the military-industrial complex and AIPAC. We’re the best politicians money can buy!

        2) Yes, we don’t care what out constituents or the voters think or what happens to them unless they have money or some way of getting us out of office – which they don’t short of assassination or major scandal.

        3) The line from an episode of the TV show Leverage where a private military contractor says that buying a Congressman is the best investment one can make, since the retention rate is over 90% – to which one of the team says, “I’m a professional criminal and I find that disturbing.”

        4) Yes, we don’t think up policies by ourselves, we have researchers and lobbyists to tell us what to think. All we care about is the next election, our perks, and our “nooners”. Beyond that, we’re ignorant and proud of it.

  6. I’m certainly curious as to why Barry would take offense at this post. Incidentally, as to the possible necessity of breaking of international law for (arguably) the right reasons and within a greater strategy of international legal reform, I think Allen Buchanan proffered an intriguing justification of same (in part, analogous to principled civil disobedience in municipal law) in chapter 11, “The Morality of International Legal Reform,” in his Justice, Legitimacy and Self-Determination: Moral Foundations for International Law (OUP, 2004).


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 156 other followers