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On international law

International law is often far less clear than it might sound

This article is taken from the December-January 2024 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

International law tends to be poorly understood, even among lawyers. But it retains an aura among laymen which frequently leads to its invocation as a form of higher law, though often in a severely mangled form. Recent events such as the wars in Ukraine and Gaza have made the problem even more acute, so that it may be useful to provide here a short primer of some of its salient features.

First and foremost, international law does not exist ex nihilo; it is (with vanishingly few exceptions, the so-called peremptory norms, which no country can reject) the result of the consent of states.

A few years ago, many newspapers reported breathlessly that nuclear weapons had been banned for the first time under international law. The treaty in question was a valid instrument of international law signed by almost 100 countries; yet as every nuclear power refused to sign it, its practical effects were nil. This did not stop one of the NGOs behind the treaty from being awarded the Nobel Peace Prize.

Turning to the most infamous of all international crimes, to most people, genocide (whose prohibition is a peremptory norm) simply means the killing of a large number of civilians. But genocide is not simply about the number of dead people, nor does international law actually require killing to take place.

As the Genocide Convention defines it, genocide consists of “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. Destruction can consist of killing, but also of certain types of serious systemic mistreatment such as mass sterilisation and the forcible transfer of children out of the targeted group. The group has to be one of the four enumerated ones, so that mass killing of, say, political opponents is not genocide unless they also happen to constitute one of the enumerated groups.

“In whole or in part” has provoked many gruesome debates as to what level of killing or of harm is required before something qualifies as genocide. Recent judgments suggest that it depends not only on the overall number of victims, but also their relation to the overall size of the targeted group. And genocide requires genocidal intent, which separates genocide from “mere” atrocities against civilians.

Turning to what are popularly known as the laws of war, more accurately and somewhat euphemistically known as international humanitarian law. The product of compromises between operational military requirements and the prescripts of humanity, international humanitarian law (IHL) exists not to stop wars, but to keep warfare within certain parameters once it breaks out.

A separate branch of international law deals with the circumstances under which military force can be lawfully employed against other nations — essentially never outside of self-defence or of UN-authorised operations. But IHL has to be observed whether the underlying conflict is legal or not; to decree otherwise would mean that wagers of illegal wars are bound by fewer rules of conduct.

Because it is merely meant to limit the baleful effects of armed conflict, IHL’s requirements may often seem irrational, at least until its underlying logic is explained. For instance, under the principle of distinction, attacks cannot deliberately target civilians, which combatants are required to wear uniforms so the other side knows who can be lawfully targeted.

But the killing of civilians is not, contrary to popular belief, illegal, provided that they are killed as an incidental effect of legitimate attacks against military objectives and that the attack is proportionate, another oft-misunderstood principle.

In the context of IHL, proportionality merely means that the damage done to civilians in an attack cannot be excessive in relation to the anticipated military advantage of the attack. It does not mean that both sides to a conflict should incur similar levels of casualties, a morally bankrupt idea, much in vogue recently.

Such compromises abound within IHL

Such compromises abound within IHL. Combatants who surrender cannot be attacked and their surrender has to be accepted, but (apart from persons parachuting from an aircraft in distress) there is no requirement to offer opponents an opportunity to surrender before killing them, for to do so would make much of modern warfare impossible.

Often, weapons are banned by international law not because they are too lethal, but because they are not lethal enough. The first weapon specifically banned in the modern era was the expanding, or so-called “dum-dum” bullet, which expands on impact instead of penetrating the target. It was less lethal than conventional bullets, but its use was nevertheless forbidden by treaty because conventional bullets killed more quickly and caused fewer agonising injuries.

More recently, the Convention on Certain Conventional Weapons banned laser weapons whose aim is to cause permanent blindness and weapons producing shrapnel which cannot be detected by X-ray; but lasers which kill outright and shrapnel-based weapons whose fragments can be X-rayed in the victim’s body remain perfectly legal.

This may all appear crude to some; but it reflects the reality of international law. Often dismissed as airy-fairy nonsense, international law is actually a supremely pragmatic branch of legal science. 

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