Byers - War Law (2006) - Synopsis

UFPPC (www.ufppc.org) Digging Deeper: July 3, 2006, 7:00 p.m. Michael Byers, War Law: Understanding International Law and Armed Conflict (NY: Grove Press, 2006). Foreword. Aim: “to provide the interested non-lawyer with a readily comprehensible overview of the law governing the use of force in international affairs” (ix). Consolidates and expands essays published in the London Review of Books (ix-x). Introduction. Historically, military aggression was “left largely unregulated” until the U.N. Charter was adopted in 1945, but since then, governments have almost always tried to justify their use of force in legal terms, “however tenuously” (1-3). There are two principle sources of international law: 1) Customary international law, “an informal, unwritten body of rules deriving from a combination of ‘state practice’ and opinio juris [which Byers defines as “a belief, on the part of governments, that their conduct is obligated by international law”] (3-4); 2) Treaties (4). Treaty signature, ratification, and accession (45). Article 31(1) of the 1969 Vienna Convention on the Law of Treaties holds that the “ordinary meaning” is to be “given to the terms of the treaty in their context and in the light of its object and purpose” (5-6). Some rules are “codified” in treaties; some customary practices have “crystallized” into rules (6). Special jus cogens rules override conflicting treaty provisions (e.g. prohibition of torture). U.N. Charter’s “central provision” is Article 2(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 state, or in any other manner inconsistent with the Purposes of the United Nations (7; also 157). Exceptions: Security Council authorization and selfdefense (Article 51) (7-8). Two other unwritten exceptions “may have

developed” in recent decades: (a) the right to intervene militarily to promote or restore democracy (8); (b) the right to intervene on humanitarian grounds (9). Four Geneva Conventions of 1949: treaties that set out the laws of war (910). International tribunals (10). U.S. military dominance and legal entrepreneurialism “does not necessarily spell the end of the global rules on the use of force” (10-11). PART ONE: UNITED NATIONS ACTION Ch. 1: Security Council Authorization. Its history from 1945 to 1995 shows a politics of hesitation (1516). Korean War (17). Southern Rhodesia/Zimbabwe, 1964-1980 (17-19). Iraq’s invasion of Kuwait (19-20). BosniaHerzegovina, 1992-1995 (20-23). Ch. 2: Expanding Reach of the Security Council. Takes a positive view of the Security Council’s expansion of competence in the 1990s—but Darfur demonstrates its insufficiency, due to political factors. Somalia, 1992-1993 (26-28). Rwanda, 1994 (28-29). Haiti, 1993-2004 (“The Security Council’s actions on Haiti confirm that the Council considers itself legally competent to impose mandatory sanctions and authorize military force in response to internal humanitarian crises that pose little, if any, threat to other countries” [31]) (29-33). East Timor; the United Nations Transition Administration in East Timor (UNTAET) was “the first time the United Nations had assumed complete control over the sovereign functions of a country,” 1999-2002 (33-35). Sudan, 2004-present (37-39). Ch. 3: Implied Authorization and Intentional Ambiguity. U.N. actions on

Iraq after the Gulf War (40-41). Kosovo (41-43). Legality of U.S. overthrow of Saddam Hussein opposed by Cambridge and Oxford chairs in international law, James Crawford and Vaughan Lowe, and disagreement provoked the resignation of Elisabeth Wilmhurst, deputy legal adviser to the British Foreign Office (4344). With Resolution 1441, adopted on Nov. 8, 2002, “the Security Council succeeded in effectively de-legalizing the situation, and thus protecting the international legal system from the damage that would otherwise have resulted when politics prevailed. In particular, the inclusion of language in favor of a right to go to war provided the United States with an argument—the material breach argument—that was more legally tenable than its parallel claim of an extended right of pre-emptive defense. And that more tenable argument then had the effect of absorbing much of the impact that the pre-emption claim might have had as a precedent in customary international law” (45). “[T]he United States tends to place more weight on the ‘object and purpose’ of international documents and less weight on their actual terms” (46). This leads to differences in the interpretation of U.N. Security Council resolutions (47-48). Given the failure to find WMDs in Iraq, “[t]he attempt to advance a purposive approach to the interpretation of Security Council resolutions has backfired” on the U.S. (49). But the U.S. continues to argue for it (49-50). PART TWO: SELF-DEFENSE Ch. 4: ‘Inherent Right’ of SelfDefense. The Dec. 20, 1837, Caroline incident, in which Britain entered U.S. territory (Fort Schlosser, NY) to destroy a boat transporting arms and men to support a rebellion in Upper Canada (now Ontario), led to the legal distinction between war and self-defense (53-54). Vague Kellogg-Briand pact of 1928 (54-

55). U.N. Charter, 1945 (55-57). The 1976 Entebbe incident “is regarded as having decisively contributed to a limited extension of the right of self-defense in international affairs to include the protection of nationals abroad, and military incursions for this purpose are now “commonplace” (57-58). The U.S. riposte in 1993 to an assassination plot on G.H.W. Bush was a “pragmatic” response whose justification depends on a view of the Security Council as a political body (58-60). Ch. 5: Self-Defense against Terrorism. The legality of the U.S.’s 1986 bombing of Libya in response to a terrorist bombing in West Berlin was widely rejected (61-62). The 1998 attack on a Sudan pharmaceutical plant was preceded by alerting Britain, France, and Germany; it contributed to obfuscating limits to the right of self-defense (62-65). 9-11 was used to establish self-defense as a basis for military action against terrorism, but where are the limits? (6567). Problem exemplified in the MarchApril 2004 killings of Sheikh Yassin and Abdel-Aziz al-Rantissi of Hamas: the U.S. defended them, the U.K. condemned them (68-70). U.S. support for Israel’s plan to retain West Bank settlements and to refuse the Palestinian right to return abandoned U.S.’s claim to be able to serve as an objective mediator in the Israel-Palestine conflict (70-71). Ch. 6: Pre-emptive Self-defense. Israel’s 1981 Osirik raid failed to bring about recognition of a right to preemptive self-defense (72-74). Bush asserted such a broad right in his 2002 West Point address (75). But this “might well provide incentives—perversely based on self-defense—for others to acquire the very weapons that the United States purports to abhor (76-77). In 2002 National Security Strategy, U.S. claims “reformulated” to try to fit traditional standards of self-defense (7778). But this introduces ambiguity and

provoked protests (78-79). The U.S. decided to rely on the argument that UNSCR 1441 revived an earlier authorization for military action (79-80). It is hard to argue that the right to preemptive self-defense has attained customary international law status, but the U.S. continues to assert this (80). In December 2004, a high-level U.N. panel that included Brent Scowcroft rejected this claim (80-81). PART THREE: HUMANITARIAN INTERVENTION Ch. 7: Pro-Democratic Intervention. “There are no credible precedents for the claim of pro-democratic intervention . . . individual countries or groups of countries cannot legally take such action on their own” (85-86; emphasis added). Grenada, 1983 (86-88). Panama (88-90). Forceful assistance to opposition groups is also prohibited (90-91). Ch. 8: Unilateral Humanitarian Intervention. Growing international pressure for a right of humanitarian intervention (92-93). East Pakistan, 1971 (93-94). Cambodia (94-97). Uganda (9798). Kurds of Northern Iraq (98-100). Kosovo (100-02). No such right currently exists: “Much more state practice and opinio juris would be needed before a right of unilateral humanitarian intervention, as an exception to the wellestablished prohibition of the use of force, could reasonably be considered to have acquired legal force” (102). Ch. 9: Responsibility to Protect. Argues against a legal “responsibility to protect” the human rights of minorities that could justify unilateral use of military force (cf. the 2001 The Responsibility to Protect (International Commission on Intervention and State Sovereignty), because it would “[p]lay into the hands of those who would seek exemption for less benevolent ends”; Tony Blair’s invocation of this to justify the Iraq war

illustrates the problem (104-10). Mandating redirection of military expenditures “is the only area where the responsibility to protect could add something new and useful” (110-11). PART FOUR: INTERNATIONAL LAW DURING ARMED CONFLICT Ch. 10: Protection of Civilians. Jus in bello is distinct from jus ad bellum (115). Four Geneva Conventions of 1949 (and the predecessor Hague Conventions of 1907) are its primary source today (11516). Prohibition of targeting of civilians a “key principle” (116). U.S. actions in Fallujah “certainly looked like war crimes from afar” (116-18). The civiliancombatant distinction (118). Mercenaries and journalists (118-19). Constraints on “military necessity” (119). In the Gulf War, the U.S. took legal obligations seriously (119-20). But U.S. predominance has led to erosion of U.S. commitment to jus in bello; e.g. the “five strategic ring” theory (120-22). Legal issues raised by high-altitude bombing and Additional Protocol I in the Kosovo War (122-23). The U.S.’s claims that precision-guided missiles justify less concern for protection of civilians are “inappropriate” and “immoral” (123-24). Land mines (124). “Depleted uranium, cluster bombs and fuel-air explosives are among the weapons whose use remains legally uncertain” (124). Nuclear weapons use “not banned but . . . subject to the constraints of international humanitarian law” (124-26). “International humanitarian law is, in part, what you and I and the rest of the people on this planet determine it to be. In the lead-up to future wars—and throughout the ongoing occupation of Iraq—we should insist that all countries uphold the strict standards of international humanitarian law, not because it is expedient but because it is right” (126).

Ch. 11: Protection of Combatants and Prisoners of War. When soldiers are protected: when wounded, when they lay down their arms (127-28). Difficulties with the civilian-combatant distinction: irregular forces; special forces (128-29). Guantánamo shows Rumsfeld’s contempt for international law (129-31). Abuse and torture (13134). Forced transfer (134-35). George W. Bush’s admission to war crimes in January 2003 State of the Union address, when he said: “All told, more than 3,000 suspected terrorists have been arrested in many countries. Many others have met a different fate. Let’s put it this way —they are no longer a problem to the United States and our friends and allies” (135). Ch. 12: War Crimes Courts and Tribunals. Saddam Hussein’s trial (13640). The International Criminal Tribunal for the former Yugoslavia (140-43). The U.S. is the only nation actively working to undermine the International Criminal Court of Justice (143-45). Refusal in the aftermath of Abu Ghraib to extend Resolution 1422 granting ICC immunity to soldiers from non-ratifying countries when engaged in U.N. peacekeeping (145-46). Epilogue: War Law and the Single Superpower. Impossible to deny in the aftermath of 9/11 that “something fundamental has changed” (147-50). Bush administration has linked U.S. policy to three aspects of Americans’ selfconception: (a) “a narrow, reactionary conception of popular sovereignty” (15051); (b) Frederick Jackson Turner’s “frontier thesis” (151-52); (c) faith in technology (152-53). Bush takes full advantage of predominance to marginalize U.N., undermine international humanitarian law, and diminish the possibility of multilateralism (154-55). U.S. policies exhibit a “democratic deficit” in that “the international rules and institutions detested by

neoconservatives such as George W. Bush are more consistent with the founding principles of the United States than the imperialist principles to which they now subscribe. . . . Many Americans maintain a strong desire to see their country return to the constructive, cooperative, law-abiding approach that led to the creation of the United Nations in 1945 . . . It’s high time that America’s friends supported them, by resolutely opposing the rule-twisting megalomaniacs who have dominated and corrupted U.S. and global politics since 11 September 2001. The immense power of the United States carries with it an awesome responsibility: to improve the world—for everyone. Obeying the requirements of war law is a necessary first step” (155). Appendix: Charter of the United Nations, 1945. (156-85). Further Reading. 12 pp., organized by chapter. Selected Internet Sites. 34 sites. Index. 15 pp.