The Non-Existent Legal Basis for Judicial Interventionism
The Non-Existent Legal Basis for Judicial Interventionism
Introduction
Few question the claim that “tyrants must be held to account” or that “governments must not be allowed to massacre their own people.” These phrases are often repeated to justify interventionism in the internal affairs of states, most recently (at the time of writing in 2013) over Syria. Yet the clarity of the moral case for such interventionism is often only apparent and can depend on a highly partial view of the facts. Rebels, for instance, can be presented as mere “protesters,” as if they were unarmed civilians when they may in fact be armed and vicious. Moreover, even if the moral issues seem clear, interventionism raises very serious legal and constitutional questions. Outrage may be a convenient tool to deploy for the purposes of short-term politics but it is unreliable as a foundation for a generalised system of interventionism. Above all, morality alone can never justify legally unauthorised action: if a private citizen imprisons a burglar he will be punished as a vigilante, and the same principles should apply at the international level. It is incompatible with the most basic principles of law for one state, or a group of states, to set themselves up as arbiters of what is right and wrong.
In spite of these obvious legal and constitutional problems, ignorance of which threatens the very fabric of international law, there has been a concerted push towards interventionism, both military and judicial, since the end of the Cold War. Very often the two kinds of interventionism go together. The clearest manifestation of this trend has been the proliferation of international criminal tribunals but the push towards legalising a claimed “responsibility to protect” has also had some success, notably in United Nations Security Council Resolution 1973 on Libya (17 March 2011) which seemed to provide the legal cover for the operation conducted by the North Atlantic Treaty Organization (NATO) against that country. The purpose of this chapter is to look beyond the claims made by politicians and to examine whether there is indeed a solid legal basis for judicial interventionism. The chapter’s criticisms apply not just to the International Criminal Court (ICC) but to supranational criminal jurisdiction as such, as well as to the imbalances which will be created in the international system if the United Nations Security Council continues to abuse its role as a guarantor of peace and instead takes on some of the trappings of a world policeman.
The Existing Law Against Interventionism
It is well known that, following World War II, prosecutions were carried out by international tribunals against the German leaders in Nuremberg and against the Japanese in Tokyo. These tribunals—or at least Nuremberg, which has completely effaced the memory of Tokyo—have often been often quoted as precedents for the creation, from 1993 onwards, of various ad hoc international tribunals and then, in 2002, of the ICC which has pretensions to universal jurisdiction.
The extreme moral abhorrence of the Nazi regime is always invoked to justify interventionism today. However, a proper analysis of the charter of the two International Military Tribunals (IMTs), and of their rulings, shows that they were explicitly anti-interventionist. I have developed this argument at length elsewhere (Laughland 2007: 53–68) but will here recall only two points: first, aggressive war, which was the chief charge and juridical fulcrum of both trials, has never been applied by any of the modern international tribunals, who have, on the contrary, tended to favour it, at least nem con, when practised in the name of human rights; and, second, interventionism in the internal affairs of existing states (states, that is, which, unlike Germany, have not capitulated unconditionally to their enemies and which therefore still have a government) was specifically ruled out by the IMTs. Because they based the whole structure of the prosecution on the concept of aggressive war, crimes against humanity were deemed justiciable only inasmuch as they were construed as an instrument in the service of this supreme crime: crimes committed before the outbreak of war, for instance against German Jews in Germany, were ruled to be outside the Tribunal’s jurisdiction (Taylor 1992: 583).
In 1947, moreover, American judges ruling under the IMT charter rendered this non-interventionist reasoning explicit when they said:
Within the territorial boundaries of a state having a recognized, functioning government presently in the exercise of sovereign power throughout the territory, a violator of the rules of international law could be punished only by the authority of the officials of that state … Only by giving consideration to the extraordinary and temporary situation in Germany can the procedure here be harmonized with the established principles of national sovereignty. In Germany an international body (the Control Council) has assumed and exercised the power to establish judicial machinery for the punishment of those who have violated the rules of the common international law, a power which no international authority without consent could assume or exercise within a state having a national government presently in the exercise of its sovereign powers. (Trials of War Criminals 1951: 970–971)
It is impossible to exaggerate the determination of the authors of the London Charter, as of the Prosecutors and Judges at Tokyo, to outlaw aggressive war. Both U.S. Chief Prosecutors, Robert Jackson at Nuremberg and Joseph Keenan at Tokyo, made it absolutely clear that the purpose of the trials was to set up a new international system in which states would not be allowed to attack one another (Laughland 2008: 109, 173). Robert Jackson said in his opening speech to Nuremberg that the trial was one step towards the creation of a peace-based international system while the UN Charter was another. The Charter, which had been signed four months before Jackson rose to speak in Nuremberg, is an essentially pacifist document designed to regulate ius ad bellum and to subject it to the control of the Security Council.
Because of the centrality in the UN Charter of the rule against aggressive war, existing international law is overwhelmingly anti-interventionist: that is, it does not permit the judicial or military interventionism in the internal affairs of states which contemporary international tribunals embody and which was practised by the Security Council over Libya. Let us briefly recall some of the legal instruments designed to shore up non-interventionism as the cornerstone of the post-1945 world system. First, the UN Charter (Article 2.7) states,
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter.
Second, in its very first ruling, on the Corfu Channel Case (9 April 1949), the new International Court of Justice (ICJ) found against the UK, which had argued that it had been right to intervene in Albanian territorial waters to seize evidence to support a prosecution for war crimes:
The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organisation, find a place in international law. Intervention is perhaps still less inadmissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful States, and might easily lead to perverting the administration of international justice itself. (ICJ 1949: p. 35)
Third, on 24 October 1970, the United Nations General Assembly voted a Declaration on Friendly Relations which ruled that,
Fourth, on 9 December 1981, the UN General Assembly adopted a Declaration on the Inadmissibility of Interference and Intervention in the Internal Affairs of States, whose title speaks for itself and whose content is just as robust and unambiguous as the 1970 Declaration. It not only ruled out interference in the internal affairs of states “for any reason whatsoever” but also recalled
the duty of a State to refrain from the exploitation and the distortion of human rights issues as a means of interference in the internal affairs of States, of exerting pressure on other States or creating distrust and disorder within and among States or groups of States (United Nations General Assembly, 1981, II (l))
as well as the duty of states not to support internal rebellions.
Fifth, on 27 June 1986, the International Court of Justice ruled that the United States had been wrong to intervene in Nicaragua to overthrow the Sandinistas because
adherence by a State to any particular doctrine does not constitute a violation of customary international law; to hold otherwise would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State … The Court cannot contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system. (ICJ 1986: paragraph 263)
It added,
In any event, while the United States might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect. … The protection of human rights, a strictly humanitarian objective, cannot be compatible with the mining of ports, the destruction of oil installations, or again with the training, arming and equipping of the contras. The Court concludes that the argument derived from the preservation of human rights in Nicaragua cannot afford a legal justification for the conduct of the United States. (ibid: paragraph 268)
Responsibility to Protect
By contrast, the legal basis for the opposite doctrine, now known as “responsibility to protect” (R2P), is exceptionally thin. Indeed, an argument can be made for saying that it is non-existent. The most solid legal basis for it is buried in the conclusions of the World Summit 2005, which was formally adopted in its entirety by the UN General Assembly that October. The relevant part of the text reads as follows:
We are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. (United Nations General Assembly, 2005, paragraph 139).
It was indirectly on the basis of this rather elliptical statement that UN Security Council Resolution 1973 was voted on 17 March 2011, the first such resolution based on the “responsibility to protect.” However, this first use of R2P was clearly an abuse: the allegation then was not that the Libyan authorities were “failing to protect their populations from genocide, war crimes etc.” (UNSC 2011), but that they were committing these crimes themselves. This, indeed, is the usual sense in which “responsibility to protect” is understood but it is not the sense expressed in the General Assembly Resolution. Further criticisms of Resolution 1973 are outlined below.
The Illegality of Universal Jurisdiction
In both the Kosovo and Libyan conflicts, the NATO military operation against the state in question was accompanied by a criminal indictment of its head by an international tribunal for war crimes. Here again, the legal basis was weak.
Supporters of judicial interventionism adduce the numerous ad hoc criminal tribunals that have been created since the end of the Cold War in support of their argument that international law is being changed by precedent. Yet, as I have argued elsewhere (Laughland 2007: 69–87), the creation of criminal tribunals by the Security Council was clearly ultra vires, and this for numerous reasons: the Security Council is an executive organ, not a judicial one; criminal tribunals cannot be created by executive fiat but must be created by law; and Chapter VII cannot be invoked unless there is a threat to international peace and security, in other words unless one country is about to invade another.
If states wish to have a treaty permitting interventionism, for instance if crimes against humanity are being committed within a state, then they should draw one up and present it for ratification: it is not legal to pervert or distort existing treaties like the UN Charter for ulterior purposes. It is especially reprehensible for a tribunal to be created by executive decision, as was the case with the creation of the Yugoslavia and Rwanda tribunals which were set up by the Security Council for reasons of mere expediency and because a treaty would take too long to ratify. It is a fundamental principle of law that criminal tribunals must themselves be set up by law (see for instance Article 14.1 of the International Covenant on Civil and Political Rights of 1966) (United Nations General Assembly: 1966).