What does the bombing of Tall al-Abyad tell us about the state of international law? wonders James Green
A t face value, the incursion in the first week of September by the Israeli air force into the Tall al-Abyad region of Syria is yet another pinch of salt in a wound that has been causing international lawyers an increasing amount of pain since the spring of 2003.
Beyond the later confirmation on Israeli army radio that targets “deep inside Syria” had been attacked, not much is known about what happened in Syria or its airspace on 6 September. The usually rather vocal Israeli government and its military command have kept their lips firmly shut about the incursion, entitled “Operation Orchard”. Initial indications were that the incursion caused no damage or loss of life after the Israeli aircraft (around eight of them) were chased off by Syrian defences. This was quickly followed by hints that the attack was successful and was directed against arms shipments. Since then, suggestions have been slowly emerging that that the attack was taken in response to what one journalist termed “nuclear skulduggery”. Indeed, it has even been alleged that target was a North Korean developed nuclear facility, with one mid-ranking US official’s alarmist proclamation being that: “the North Koreans are in Syria”.
Unsubstantiated murmurings aside, there was nothing offered in the way of a political, let alone a legal, justification for the breach of territorial sovereignty. The fact that Israel felt able to use military force against one of its neighbours without even bothering to claim that it was acting lawfully in self-defence (the only unilateral exception to the UN Charter’s prohibition on the use of force, and thus the only way the action could have been lawful) may well be seen as evidence of just how irrelevant international law has become in the post-9/11 world. Powerful states now need not even concoct spurious legal justifications for their actions. Is the raid into Tall al-Abyad yet another reason to proclaim the death of international law (or, perhaps, as has been argued in the past, that it was never even born)?
The international lawyer’s lament
Even at the best of times, international law can be a somewhat lonely discipline. For many political scientists and other social commentators, it is an irrelevance, or at least a tiresome inconvenience, to the realpolitik of international relations. Perhaps, at best, it is viewed as a tool that may be employed to facilitate the national interests of those states powerful enough to make use of it (as, when, and only to the extent that they wish to do so). International law, for the political scientist, is too “legal” to be of much relevance in the international sphere. Power rules in the world arena, and all one need do to prove the fact today is utter a single four letter word (a clue: it begins with an “I” and ends with a “q”).
Snubbed, the international lawyer turns for support to his colleague, the municipal lawyer. In response, the municipal lawyer is quick to point out that international law is heavily premised upon political factors. It has no discernable enforcement mechanism and no sovereign lawmaker, much of it is customary in nature and, worst of all, the whole thing is based on the states of the world consenting to be bound by it. None of which can be viewed as being very “legal” at all.
As such, international law sits, isolated, between the disciplines of political science and law. However, both camps are united by their justification for this ostracism: they take the view that international law is not really “law” at all, at least, not in any meaningful sense of that term.
Is international law really “law”?
In every lecture on international law, a student will inevitably ask the question: Is international law really “law”? For many international lawyers, this question is impertinent, implying as it does that one’s entire discipline might be a fabrication. In fact, though, it is a perfectly reasonable question, and one that has been asked not merely by students, but also regularly by respected academics. Most famously, it was raised by the late Professor Glanville Williams, of Jesus College Cambridge, in an article in the British Year Book of International Law half a century ago; an article so thoroughly dissected by generations of international law students that its pages simply fall out of the volume in question in any library copy. Yes, it is a perfectly reasonable question, and one that we international lawyers need to learn to receive with good grace. Having said that, on consideration, the answer to the question is actually irrelevant.
Recorded debate over what constitutes “law” dates back to the ancient Greeks, and nobody has yet produced an uncontroversial definition, despite numerous contenders. If one views law as an Austinian command-and-sanction based system, then, there is no question, international law is not law. Conversely, under a more expansive conception, for example, “a system of formally binding rules designed to order society with the facility for adjudicative resolution of disputes”, international law might well be considered law.
There are two reasons why it is perhaps desirable for international law to be so called. Neither, however, have anything to do with representing what international law in fact is. Both are pragmatic: first, the normative system we are terming “international law” has historically always been referred to in this way. The last thing anyone wants, after all, is a confusion of terminology (much as lawyers tend to take pleasure in such things); second, the term “law” has a certain compliance-pull associated with it. Saying that the UK breached the law by intervening in Iraq in 2003 has far more political impact than saying that it acted contrary a system of quasi-legal normative rules that regulate international relations. The term “law” has weight. For those of us who believe international law is an extremely important thing – and there are more of us than you might think – anything that gives the rules more clout should be embraced, particularly as we have no “world police” to do the clouting for us. However, these comparatively minor points aside, it makes no difference whether international law is “real” law or not. It does not, in the end, matter what one calls it.
What matters is that international law exists. It exists, and it is distinct from systems of international politics, comity, morality or economics. Of course, it is doubtless related to these systems, and at times overlaps with them: no social system exists in a vacuum. Nonetheless, international law is identifiable as a discrete system in international society. It is growing at an astonishing rate, and, moreover, it is crucial for the future of mankind.
Failures of the law
International law generally enters the public consciousness when it is not functioning properly and where its violations are particularly egregious: Iraq, Rwanda, Darfur, Guantanamo. Situations such as these represent the margins of world order, where failures of international law come to the fore. But international law is also a crucial building block for modern human society. Without the whole substrata of consular relations provided for by international law, for example, all intercourse between states would break down completely. International law is the basis for the European Union, the greatest human cooperative project of modern times (and the primary reason that large-scale war in Europe has all but been banished from the realms of possibility). In the United Nations era alone international law has provided us with a universal declaration on human rights and a prohibition on war in all but the most exceptional circumstances. International law is why we have a growing level of democracy in international affairs, where every state (if not, at least as yet, every person) has a voice.
The political power of international law
In the vast majority of instances, international law successfully regulates international relations and allows an ever more globalised world to function. Even at the margins, such as the law on the use of military force, as a general rule states today reference the law: no state claims to be above it, not even the world’s sole superpower. Israel’s silence in regard to the Tall al-Abyad incident is the exception, not the rule. Moreover, the incident is not an example of a state ignoring international law, but rather of a state attempting to hide from it. Even if the raid was directed at a nuclear facility (which it may or may not have been), and was proportionate to the threat Israel faced from that facility (hard to know as we have no idea what the threat really was), such pre-emptive action is nonetheless a clear breach of international law. Israel has already found this out to its cost by way of the near universal condemnation of its attack on the Osiraq nuclear reactor in Iraq in 1981. Pre-emptive action of this type (where there is no proof of an imminent attack) cannot be justified under the rubric of self-defence. Israel’s silence over Tall al-Abyad should not be taken as a dismissal of international law, but as an indication of that state’s awareness of the growing political impact that a breach entails. Better to hide the entire operation than risk advancing a flimsy legal case which opens the state up to the censure of international law and the political pressure which that involves.
Unlike the Tall al-Abyad situation, states usually do set out a legal justification for any legally controversial act, however spurious that justification may be. Of course, this may be seen as paying lip service, but it also demonstrates the power that the international legal system exerts on states. As the international court has said, this reverence to the law, coupled with the fact that breaches are today seen as the exception to the normal state of affairs, has the effect of strengthening whichever rule has been breached, not weakening it. It is becoming more and more difficult to hide from international law.
International law is far from perfect, much like its primary institutional manifestation, the United Nations. In the modern era it has undoubtedly failed catastrophically more than once. Compared to the domestic law of most states, it is often unclear, and states will, on occasion, disregard it entirely. International law today regulates every conceivable aspect of international relations. Power politics and unilateralism cannot meet the challenges of the modern world. These challenges are huge: terrorism, poverty, disease and environmental ruin. It is in the national interest of every state, and in the interest of every human being on the planet, for us to exist in a world regulated by law. International law is far from perfect, but it is what we have, and we must work together to strengthen it, and to use it to meet the various challenges that we face.
James A Green is a lecturer at the University of Reading
With thanks to Professor S Ghandhi for
his comments
