By Ivan Simic
In relation to recent global events; wars, invasion of countries, conflicts between states, political scandals and recognition of new states, there is one phrase that everybody like to use. That phrase is called international law.
International law is the term commonly used in referring to the system of implicit and explicit agreements that connects nation-states committed to recognizing values and standards that differs from other legal systems; in that it concerns nations rather than private citizens.
International law can be referred to three different legal disciplines, namely: Public international law, private international law and supra national law.
The most interesting is the public international law or “Law of Nations”, since it involves the United Nations (International Court of Justice and Security Council), International Criminal Law, Geneva Conventions, Vienna Conventions, World Health Organization, International Labor Organization, International Monetary Fund, among others.
Public international law concerns the structure and conduct of states and intergovernmental organizations. In its most general sense, international public law consists of rules and principles of general application dealing with the conduct of states and of intergovernmental organizations and their relationship, as well as with some of their relations with persons, natural and juridical. Public international law establishes the framework and the criteria for identifying states as the principal actors in the international legal system.
In relation to the devastating international political scene, some main bodies of the public international law are: the United Nations (International Court of Justice and Security Council) and the International Criminal Law.
Going back to the evolution and practice of these organizations, it is pertinent to remind ourselves of the manual that guides the conduct of modern day international law.
THE UNITED NATIONS
The United Nations (UN) is an international organization whose stated aims are to facilitate cooperation in international law, international security, economic development, social progress, human rights, and achieving world peace. The organization is divided into administrative bodies, primarily: the General Assembly, The Security Council, The Economic and Social Council, The Secretariat, The International Court of Justice. There are currently 192 member states, including nearly every recognized independent state in the world.
The United Nations Charter is the treaty that forms and establishes the international organization called the United Nations. As a Charter, it is a constituent treaty, and all members are bound by its articles. The Charter consists of a preamble and a series of articles grouped into chapters.
A preamble to the UN Charter:
WE THE PEOPLES OF THE UNITED NATIONS DETERMINED
· to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and
· to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations, large and small, and
· to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and
· to promote social progress and better standards of life in larger freedom,
AND FOR THESE ENDS
· to practice tolerance and live together in peace with one another as good neighbors, and
· to unite our strength to maintain international peace and security, and
· to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and
· to employ international machinery for the promotion of the economic and social advancement of all peoples.
Charter I of the United Nations Charter lays out the purposes and principles of the United Nations organization.
The Purposes of the United Nations are:
- To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
- To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
- To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
- To be a centre for harmonizing the actions of nations in the attainment of these common ends.
Article 2, clauses 3-4 essentially prohibit war (except in self-defense) by stating:
3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, is not endangered.
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.
Article 2, clause 7 of this chapter reemphasizes the fact that only the UN Security Council has the power to force any country to do anything by stating:
7. 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; but this principle shall not prejudice the application of enforcement measures under Chapter VII. (Only the Security Council can institute Chapter VII enforcement measures.)
Chapter VII of the United Nations Charter sets out the UN Security Council’s powers to maintain peace. It allows the Council to determine the existence of any threat to the peace, breach of the peace, or act of aggression, and to take military and non-military action to restore international peace and security.
The UN Charter’s prohibition of member states of the UN attacking other UN member states is central to the purpose for which the UN was founded in the wake of the destruction of World War II: to prevent war.
According to Charter VII, article 51 of the United Nations Charter, countries can engage into military action only in self-defence, including collective self-defence:
51. Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
The Security Council was consequently granted broad powers through Chapter VII as a reaction to the failure of the League of Nations in the years between World War I and II.
THE INTERNATIONAL COURT OF JUSTICE – WORLD COURT
The International Court of Justice (ICJ) was established by the UN Charter, Charter XIV, and is the primary judicial organ of the United Nations. The ICJ is established to settle disputes between nations. Chapter XIV of the United Nations Charter authorizes the UN Security Council to enforce the ICJ rulings, but such enforcement is subject to the veto power of the five permanent members of the Council.
Charter XIV, Article 93, clause 1:
1. All Members of the United Nations are “ipso facto” parties to the Statute of the International Court of Justice.
Article 94, clause 1 and 2 establishes the duty of all UN members to comply with decisions of the Court involving them. If parties do not comply, the issue may be taken before the Security Council for enforcement action:
1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.
2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.
Only states may be parties in contentious cases, on the other side, individuals, corporations, parts of a federal state, NGOs, the UN organs and self-determination groups are excluded from direct participation in cases. The United States withdrew from compulsory jurisdiction in 1986, and so accepts the court’s jurisdiction only on a case to case basis.
Since the International Court of Justice deals only with states, there is an autonomous branch of law called International Criminal Law (ICL).
THE INTERNATIONAL CRIMINAL LAW
The International Criminal Law (ICL) deals with international crimes, the courts and tribunals are set up to arbitrate cases in which persons have incurred international criminal responsibility. It represents a significant departure from classical international law, which was mainly considered law created by states for the benefit of states, but tended to ignore the individual as a subject of the law.
However, the precise parameters of this body of law are often unclear, perhaps due to the rapid and complex developments of our global society. In its widest context, the source of international criminal law might be derived from the general principles of international law recognized by civilized nations; and therefore, found in the customary law accepted by states, the general criminal law recognized by nations, and the treaties which govern particular conduct.
Today, the most important institution of the International Criminal Law is the International Criminal Court (ICC), as well as several “ad hoc” tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR).
THE INTERNATIONAL CRIMINAL COURT
The International Criminal Court (ICC) is an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity, war crimes, and the crime of aggression, although it cannot currently exercise jurisdiction over the crime of aggression. Unlike the International Court of Justice, the ICC is legally and functionally independent from the United Nations. However, the Rome Statute grants certain powers to the United Nations Security Council.
The International Criminal Court came into being on 1 July, 2002 when the Rome Statute of the International Criminal Court was founded to prosecute crimes committed on or after that date. The ICC only tries those accused of the gravest crimes. The ICC is joined by 108 countries; however, a number of states, including China, India, Israel, Iraq, Libya, Qatar, Yemen, and the United States are critical of the Court and have not joined. The Court is projected as a court of last resort, investigating and prosecuting only where national courts have failed.
During the negotiations that led to the Rome Statue, a large number of states argued that the Court should be allowed to exercise universal jurisdiction. However, this proposal was defeated due in large part to opposition from the United States. A compromise was reached allowing the Court to exercise jurisdiction only under the following limited circumstances:
- where the person accused of committing a crime is a national of a state party (or where the person’s state has accepted the jurisdiction of the Court);
- where the alleged crime was committed on the territory of a state party (or where the state on whose territory the crime was committed has accepted the jurisdiction of the Court); or
- where a situation is referred to the Court by the UN Security Council.
FAILURES OF INTERNATIONAL LAW AND ITS LEGAL SYSTEM
The United Nations
Multilateral diplomacy, as practiced at the United Nations provide the forum for exchange of experiences, conducting negotiations, exchange of thoughts in a culturally-diversified arena. Unfortunately, however, the United Nations has not lived up to the expectations of its founding fathers.
It appears that the United Nations is doing all kind of things, but not the most important ones like: uniting people, maintaining international peace and security, developing friendly relations between nations, among others.
Since the formation of the UN in 1945, almost every Charter of the UN has been breached. There have been approximately 182 wars around the world since 1945, including the most recent South Ossetia War. Currently, in contemporary days there are 32 ongoing wars which are being fought, these include: Sri Lanka Civil War, Second Chechen War, War in Afghanistan, War in Darfur, Iraq War, War in Somalia, age-old Arab-Israel/Israel-Palestine (including al-Aqsa Intifada) conflict, among others.
In addition, the UN became a war combatant itself. There have been two major wars authorized by the Security Council; the 1950 Korean War, and the 1991 Gulf War. States that breach resolutions have different fates. The Korean War was the first war in which the UN participated. Iraq was swiftly attacked after failing to comply with a Security Council resolution by withdrawing from Kuwait.
However, the US, the United Kingdom, Russia, Indonesia, Morocco, Turkey, among others have been in breach of several resolutions, sometimes for decades, without having had any action taken against them.
The United States as a member state, permanent member of the Security Council, and founder of the UN was involved in over 100 international military conflicts since 1945, some of which were: Vietnam War, Korean War, Gulf War, and ongoing wars such as the Iraq War (Second Persian Gulf War), War in Somalia, War on Terrorism (Operation Enduring Freedom); Afghanistan, Philippines, Trans Sahara, among others. If we look through world history for the last fifty years, we can see that no country has been involved in as many military conflicts as the United States has.
Similarly, under the United Nations Charter, Charter I, ratified by the US and binding, all UN member states, including the US are prohibited from using force against fellow member states, except to defend against an imminent attack or pursuant to explicit Security Council authorization.
However, some member states of the UN were attacked by other UN members, these include: Iraq (the US invasion of Iraq), Afghanistan (the US invasion of Afghanistan), Former Yugoslavia (the US led NATO bombing of Yugoslavia), Georgia (South Ossetia War and Russian interference), Panama (the US invasion of Panama), Kuwait (Invasion of Kuwait by Iraq), Somalia (invasion of Somalia by Ethiopia), among others.
The UN and its Charters were established “to save succeeding generations from the scourge of war”; however, since its formation, around 38 million people lost their lives in various wars around the globe. Unfortunately, the final number of war victims will never be known. The UN failed to maintain peace.
The UN Charter was also breached by some member states with their recognition of Kosovo, as well as with recognition of South Ossetia and Abkhazia. There is no such thing called “special case” or “precedent” in international law. In International law, Charters of the UN, the sovereignty and territorial integrity of a member state has to be respected by all member states, equally and without any exemptions.
The Security Council and Power of Veto
The United Nations Security Council power of veto is frequently cited as a major problem with the UN. Key arguments include that the five permanent members (the US, the UK, Russia, China and France) no longer represent the most stable and responsible member states in the United Nations, and that their veto power slows down and even prevents important decisions to be made on matters of international peace and security.
For example, the Security Council passed no resolutions on most major Cold War conflicts, including the Soviet invasion of Czechoslovakia and Afghanistan, and the Vietnam War, among others. Resolutions addressing more current problems such as the conflict between Israel and the Palestinians, the US invasion of Iraq and Afghanistan, South Ossetia War failed. There has been a constant cause of friction between the General Assembly and the Security Council, as almost all of the wars was not endorsed by the UN.
Nonetheless, the current Security Council power of veto is irrelevant. With the General Assembly’s adoption of the Uniting for Peace resolution 337A in 1950, it was made clear by the UN Member states that:
Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.
In fact, on the other hand, this resolution looks irrelevant, since it was not used to maintain international peace and security when Security Council failed.
The United Nations was founded to be a democratic organization that represents all nations equally. However, today, after 63 years of existence, the UN has not changed and continues to represents the interests of governments of wealthy and powerful nations who founded it, and not the individuals within those nations.
Knowing that the five permanent members of the Security Council, who are all nuclear powers have created an exclusive nuclear club whose powers are unchecked, the General Assembly, (which has true international representation) with all its members can easily withdraw from the UN.
So why should members of the General Assembly, or better to say members of the UN pay annual fees in millions of dollars to the UN when they have no rights, they are not even protected from any military aggression by another member state, as was seen in the past? It was also reported before that the US, a permanent member of the Security Council seriously thought of withdrawing from the UN. In addition to withdrawal, there were some proposals to relocate the United Nations Headquarters from the US territory and the City of New York.
The International Court of Justice
If we look at the International Court of Justice (ICJ), there is not much to say. The Court decides in accordance with international treaties and conventions international custom, general principles of law, judicial decisions and the teachings of the most highly qualified publicists.
Generally, the Court has been most successful resolving border delineation and the use of oceans and waterways. While the Court has in some instances, resolved claims by one State espoused on behalf of its nationals, the Court has generally refrained from hearing contentious cases that are political in nature due in part to its lack of enforcement mechanism, and its lack of compulsory jurisdiction. The Court has generally found it did not have jurisdiction to hear cases involving the use of force.
In relation to the UN Charter XIV, Article 94 of the UN Charter, there are some obvious problems; if the judgment is against one of the five permanent members of the Security Council or its allies, any resolution on enforcement would then be vetoed. This occurred, for example, after theNicaragua case (Case Concerning Military and Paramilitary Activities in and against Nicaragua(Nicaragua vs. the US)), when Nicaragua brought the issue of the US’s non-compliance with the Court’s decision before the Security Council. Furthermore, if the Security Council refuses to enforce a judgment against any other state, there is no method of forcing the state to comply.
In practice, the Court’s powers have been limited by the unwillingness of the losing party to abide by its ruling, and by the Security Council’s unwillingness to impose consequences. Simply, the ICJ does not enjoy a full separation of force, with permanent members of the Security Council being able to veto enforcement of cases to which they consented in advance to be bound.
The International Criminal Court
Relating to the International Criminal Court (ICC), as of 2002, the Office of the Prosecutor had received around 2,800 so called “communications” about alleged crimes in at least 139 countries. After initial review, however, the vast majority of these communications were dismissed as obviously outside the jurisdiction of the Court. As of August 2008, the International Criminal Court has launched investigations into just four situations: Northern Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur (Sudan). Several other situations have been subject to intensive analysis, including Afghanistan, Chad, Colombia, Cote d’Ivoire, Georgia and Kenya.
The Office of the Prosecutor had received around 240 communications in connection with the US led invasion of Iraq in 2003, which alleged that various war crimes had been committed; none of these allegations had survived.
The UK, Australia, and Poland (countries that invaded Iraq with the US), are all parties to the Rome Statute, which established the International Criminal Court (ICC). Therefore, their nationals are liable to prosecution by the court for the violation of any relevant international criminal laws. Because the United States does not recognize the legitimacy of the court, US nationals cannot be prosecuted by the court (except for crimes that take place in a territory of a state that has accepted the court’s jurisdiction; or situations that are referred to the court by the United Nations Security Council where the US has a power of veto).
In July 2002, the United States threatened to use its Security Council veto to block renewal of the mandates of several United Nations peacekeeping operations, unless the Security Council agree to permanently exempt US nationals from the Court’s jurisdiction.
A resolution to exempt citizens of the United States from the jurisdiction of the ICC was renewed in 2003 by the Security Council Resolution 1487. However, the Security Council refused to renew the exemption again in 2004, after pictures emerged of US troops torturing and abusing Iraqi prisoners in Abu Ghraib. Shortly, after that the US withdrew its demand.
As part of the US campaign to exclude its citizens and military personnel from extradition to the ICC, the Bush administration has been approaching countries around the world seeking to conclude Bilateral Immunity Agreements, or “Article 98” agreements. So far, hundreds of countries have ratified this agreement. Countries that have ratified the Rome Statute and signed Article 98 breached their obligations under international law.
In 2008, US President George W. Bush signed into law an amendment to the American Service-members Protection Act (ASPA), to eliminate restrictions on Foreign Military Financing (FMF), to nations unwilling to enter into Bilateral Immunity Agreements (BIAs), shielding US nationals from the jurisdiction of the ICC. This Act authorizes use of military force to free US nationals from the custody of the ICC.
We have not seen the Security Council refer to the court regarding genocide, crimes against humanity, and war crimes, except in situations such as Darfur, and non-state country such as Cote d’Ivoire.
However, the Security Council established two ad hoc tribunals: The International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda(ICTR).
The ICTY has been established by the Security Council acting under Chapter VII of the Charter of the United Nations, but it is not clear how a tribunal could be considered a measure to maintain or restore international peace and security. Also, the ICTY budget is not entirely financed by the UN, but by private entities. However, some 14% is being privately funded, and the remainder is being provided by the UN. This private co-financing might prove a problem concerning the Tribunal’s independence and fairness.
The International Criminal Tribunal for Rwanda (ICTR) is an international court established by the United Nations Security Council in order to judge those people responsible for the Rwandan genocide, and other serious violations of international law performed in the territory of Rwanda, or by Rwandan citizens in nearby states. So far, this tribunal is proven to be the most efficient.
On the other side, we have not seen ad hoc International Tribunals for Iraq, Afghanistan, Vietnam, Chechnya, among others. Perhaps, that is because of the influence of the five permanent members with veto power, or maybe, because of the unavailability of funds.
In this story, we have seen just a fraction of the devastating situation in international law. And if this trend continues there will be no mechanism to prevent and discipline any crimes committed by anyone.
Maybe, the hope is in the General Assembly, but only if the General Assembly, as the last resort for international law acts and establishes serious mechanism, which will carry out grave verdicts against countries and individuals who breached Charters of the UN and international law.
If necessary, these shall include actions to be taken against countries such as the United States, the United Kingdom, Russia, China, France, Heads of States such as US President George W. Bush, former US President William Bill Clinton, Russia’s President Dmitry Medvedev, former Prime Minister of the UK Tony Blair, President of Eritrea Isaias Afewerki, former Prime Minister of Australia John Howard, among many others.
Ivan Simic lives in Belgrade, Serbia. Address: Paloticeva 12, 11000 Belgrade, Serbia, Tel: +381 63 7508500.