Will governments ever obey their own law?

As governments are so infrequently held accountable for their actions, is there any reason why they wouldn't try and circumvent the very laws they hold in place?

Geoffrey Bindman
9 September 2013

  Flickr/riacale. Some rights reserved.

The impotence of international institutions is once again highlighted in Syria. The use of chemical weapons in flagrant violation of international law again poses the perennial problem of enforcement. How can an independent sovereign state be made to comply with its international obligations? In the last resort is force the only means? And when the United Nations fails to deliver, must we only wring our hands in despair?

The UN Charter requires member states to refrain from the threat or use of force. The only exceptions exist in Chapter VII, which excludes the use of force except in self-defence, or where authorised as a last resort by the Security Council. Before that critical stage is reached all possible peaceful steps must be taken, including the interruption or severance of commercial and diplomatic relations.

The major obstacle to this methodical process is disagreement among the members of the Security Council, especially when one of the permanent members – UK, USA, France, China and Russia – uses its veto to block a decision favoured by the others. Such a stalemate produces, as in the Syrian case, intense frustration and a strong impetus to by-pass the rules. It has led to the development of the doctrine of “Responsibility to Protect” (humanitarian intervention). States can use force without Security Council authority when faced with the urgent need to save lives in imminent danger. But not every state accepts this.

The motive for side-stepping the UN Charter may be entirely laudable, but doing so inevitably weakens the authority of the international community over individual states. Contempt for international law is encouraged when powerful governments ignore it. Yet international law retains moral authority and has practical effectiveness in many situations. Nor should we underestimate the vigorous efforts the most powerful make to claim legitimacy for their actions. The most blatantly brutal regimes will deny their crimes even when they know that there is little or no risk of any sanction. The violators and those who defend them will dispute the facts or the sufficiency of the evidence – or, as in the Iraq debacle, will present evidence that turns out to be false. And in some cases, such as the Israeli occupation of Palestinian territories, the state will claim a legal justification, which is hotly challenged by other legal experts.

That is why the most important role of the United Nations in international conflict is authoritative fact-finding. Authoritative legal rulings are also important whether by the International Court of Justice or other lawyers of appropriate standing. Article 2 of Chapter I of the UN Charter obliges all member states to assist the UN in maintaining international peace and security. Clearly that includes allowing independent and unobstructed investigation of all relevant facts and evidence.

In pursuing this aspect of its role, the UN (usually through its Human Rights Council) has mandated independent experts, special rapporteurs and representatives to examine questions such as the presence of weapons of mass destruction and chemical weapons. There are said to be 37 of them in office, but this seems a puny number and the effectiveness of their investigations has been restricted by lack of resources and by attempts to challenge their independence and reliability.

A striking illustration is the case of the UN Special Rapporteur for Human Rights in the Palestinian Occupied Territories:

Richard Falk has been professor of international law at Princeton for many years. He has a worldwide reputation as an outstanding expert in his field. He was appointed as Special Rapporteur in 2007 in succession to the equally distinguished Professor John Dugard, former Dean at the University of Witwatersrand Law School in South Africa.

Like his predecessor, Professor Falk has presented a number of reports to the UN on his findings. All of these have recorded serious violations of the Fourth Geneva Convention and other human rights norms by the Israeli authorities.

His conclusions have not been acceptable to those authorities and their supporters, some of whom have publicly attacked Professor Falk in vituperative terms. He has been accused of bias against Israel. Understandably, he has replied vigorously and the ensuing dispute has led to calls for his resignation (which he has rejected).

The saddest aspect of all this, as of other situations in which political differences obstruct law enforcement, is the diversion of attention from the main issue. The victims of illegality are denied redress and their dire circumstances remain unchanged.

The intrusion of political differences and the eagerness of politicians to subordinate law to expediency are of course precisely what make enforcement of international law so difficult. It is naïve to suppose that politics can ever be wholly excluded from the process. Nevertheless, if there is to be progress the way forward is surely to strengthen the capacity for independent investigation and fact-finding. We cannot stop politicians from denying the obvious, but we can make it harder.


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