International law of the jungle

Cain said to Abel: “There is no justice, no judge, no world to come, and no reward and punishment for the righteous and the wicked.” (Targum Yonatan, Bereishit 4:8).

Russian troops have invaded Ukraine. Not because Ukraine attacked or even threatened Russia in any way; not because the security of Russian settlers was in any way endangered – not one of them had been inconvenienced, let alone injured. Russia has invaded Ukraine because… because it can; because it’s more powerful and hence sees its neighbours as vassals, little more than provinces of a new Russian Empire. Make no mistake: this is not about Crimea. The Crimean Peninsula has no land contiguity with Russia. The ‘secession’ of Russian-occupied Crimea is just a provocation, to be followed one way or another by either the ‘cowing’ of the ‘rebellious’ vassal or by the de-facto annexation of other parts of Eastern and Southern Ukraine, under the pretext of ‘protection’ for the Russian settlers. The pattern is a familiar one for Putin: he has already used it with impunity in Georgia. But it’s also the way empires always acted.

Of course, USA and EU oppose the Russian move – however weakly.  But the most interesting aspect is perhaps the fact that both sides claim they have ‘international law’ on their side.

In a recent speech to the Federal Assembly, Russian President Putin claimed that the Crimean referendum was

in strict accordance with democratic principles and the international law”

The US Administration, on the other hand, stated that

This referendum is in violation of international law.”

So the politicians can’t agree – well, what else is new? But what are we, the ‘ordinary people’, to believe? Which is it: “in strict accordance” or “in violation”??

To try and make up my own mind, I sought these famous statutes of ‘international law’. But here’s the thing: there are none. Or none that has any validity. In fact, if the crisis in Ukraine serves any positive purpose, it is to show us, ‘ordinary people’, that there is no ‘international law’.  It’s a fiction concocted by politicians keen on justifying acts based not on ‘law’, but on interest.

Laws are made by legislators. For a law to have any sort of moral legitimacy, the legislator himself needs to be legitimate. And, in the 21^st century, such legitimacy can only come from democratic elections. For instance, in the UK law-making is the prerogative of the Parliament.  Other democratic countries have similar legislative assemblies.  Be they called “Congress”, “Bundestag”, “Knesset” or “Assemblée Nationale”, such assemblies have one thing in common: they’ve been elected by the people. And are thus entitled to legislate in their name. British law is legitimate because – just like American, German, French or Israeli law – it emanates from democratically elected representatives of the people.  But nothing remotely similar exists at the international level.

True, there is the United Nations Organisation; which – according to hopeless naïves and sly politicians – represents ‘the world’. Really, does it?? How and why, exactly? The ‘United’ Nations (they are anything but ‘united’) is a thoroughly undemocratic organisation, which cannot in honesty claim to represent anyone. Its members – ostensibly ‘states’ or ‘nations’ – are in reality regimes, the majority of them dictatorial and unrepresentative. Including the current regimes of Syria, North Korea, even that of Sudan – whose ruler is accused of genocide. Each is entitled to cast an equal vote in the UN General Assembly – Assad’s regime just like the Danish government, North Korea’s Kim Jong-un just like the government of Switzerland. This is an assembly in which criminals get to participate on equal footing in ‘law-making’.

But of course, the General Assembly is, for all practical purposes, impotent; it doesn’t really make law, its ‘resolutions’ are, from a legal point of view, nothing but suggestions or expressions of opinion. The only UN body that ‘has teeth’ is the Security Council, made up of 15 regi… er… sorry, ‘states’. But ten of them don’t matter much, either.  It’s the other five that are ‘permanent’ (i.e. ‘elected for life’ in the best ‘democratic’ tradition of… North Korea!) and have the ‘right of veto’, meaning that they are – for all practical purposes – above ‘the law’. Last time I’ve looked, the list of those five ‘permanent members’ included those luminaries of democracy Russia and China. The ‘non-permanent’ members are, by the way, no better: they often include Soviet-style dictatorships like Belarus and Cuba, or absolute monarchies such as Qatar, Kuwait and Jordan. Even Gaddafi’s Libya got elected as member of this ‘exalted’ international body. Yes, folks – Gaddafi. Before being lynched by his own long-oppressed people, that criminal got to vote on what is or isn’t the ‘law’.

Of course, it’s not just Gaddafi and Assad. None of the ‘representatives’ who sit on UN’s many agencies, assemblies, commissions, committees and councils had ever been elected by the people; they were merely appointed by their respective governments – few of which are democratic. The only thing these ‘representatives’ represent is the interests of those regimes. So I ask you: virtue of what moral standing are such ‘assemblies’ entitled to legislate over you and me?? And how is any ‘law’ that they make legitimate? What makes it more than an arbitrary decree, of the kind a Gaddafi or Assad are likely to promulgate?

Apologists of “international law” point at documents such as the UN Charter, the Geneva Conventions, etc. These are indeed legal documents; but laws they are not. They are treaties and agreements (i.e. ‘contracts’ to you and me) between signatory parties. Contracts are enforceable under the law, though not above it and certainly not in its stead. The question is – under which law??

Desperate to create ‘international law’ out of… sheer nothing, some ‘experts’ have come up with an invention which – while ridiculous in the extreme – is at least original: they claim that these contracts constitute ‘customary law’; and hence, that they  apply – shazzzamm! – to everybody. But that’s nothing but a shameful sleight of hand: a contract is a contract is a contract; it’s not a law; and the fact that a contract’s provisions are ‘customary’ (whatever ‘customary’ is) cannot render those provisions enforceable on non-signatories. I’ve recently signed a contract that says I’ve got to pay rent; but however ‘customary’ that clause is, it’s only enforceable on me, the signatory. Sadly, I’m unable to enforce it on my mother-in-law!

And that brings me to the issue of enforcement – without which the best law is just as useful as a beggar’s IOU. After all, what we are interested in is not the piece of paper that says ‘Law’, but the rule of law. That requires a) a body conducting inquiries in a professional, fair and consistent way; b) an impartial court of law or tribunal to interpret and apply the law to each particular case; and c) a ‘police force’ responsible for apprehending offenders and enforcing the court’s decisions. None of these essential components exists in the case of ‘international law’.

There are, of course, various ‘commissions of inquiry’, ‘rapporteurs’, etc. appointed by the UN. But these are the exact opposite of professional, fair and consistent inquiry: they are ad-hoc contraptions with tainted mandates, products of political wheeling and dealing.

Naïves typically assume solemn facial expressions when the words ‘International Court of Justice’ are uttered. The name is indeed impressive; the ‘court’ itself isn’t. ICJ is indeed international; but it’s no court of law, nor does it have anything to do with Justice. In reality, ICJ is just another UN commission issuing advisory ‘resolutions’; its members (it would be highly improper to call them ‘judges’) are individuals who may or may not have studied law before making a career as politicians or professional diplomats; who were nominated by a ‘UN member state’ (read ‘regime’) and elected by the UN General Assembly as a result of ‘horse trading’ with other ‘member states’. Which in practice means that each ‘judge’ faithfully votes in accordance with the interests of his/her country/regime, with zero regard for ‘Justice’.

Most ‘rulings’ issued by the ‘International Court of Justice’ are in fact just advisory opinions; but it would not matter much if they were real verdicts. For starters, no state has to submit to the Court’s ‘jurisdiction’; states can do so (or not) on a voluntary basis. USA, for instance, does not accept the Court’s jurisdiction, except ‘on a case-by-case basis’ (read: only when it suits her perceived interests). Even where the states involved have agreed to submit to ICJ ‘jurisdiction’, that still amounts to nothing, as there is no international ‘police force’ entitled to enforce ICJ rulings.  Such enforcement is the prerogative of the UN Security Council, which means it can only happen if all five ‘permanent members’ agree… And when was the last time USA, UK, France, Russia and China agreed on anything of substance? Where ‘enforcement’ does take place (as in 1990 in Iraq, 1999 in Yugoslavia, 2001 in Afghanistan, 2003 in Iraq and 2011 in Libya), it is the action of a state or coalition of states, with or without the UN rubber stamp. These, of course, is no ‘international police force’; at best, it can be described as the international equivalent of a Wild West vigilante posse.

Let’s stop pretending: there is no ‘international law’; there can’t be, because there is no legitimate international legislator, no legitimate international tribunal and no legitimate international enforcer.  ‘International law’ is just a fictitious concept politicians invoke to try and ‘sell’ us positions and actions which have nothing to do with ‘law’ and everything to do with interest. It often works, because most of us are law-abiding people; politicians unscrupulously exploit our natural respect for the idea of ‘law’. In reality, however, beneath the fig leaf of ‘international law’ there’s only the Law of the Jungle: the strong do as they please; the many gang up against the few; dictators get away with murder, however appalling, as long as they are oil-rich or have powerful allies. And that, my friends, is the very opposite of ‘law’.