Illegal Wars

As is evident from the title, Michael Mandel has written an angry book. A distinguished professor of law at Osgoode, excoriates the United States on almost every page of How America Gets Away with Murder: Illegal Wars, Collateral Damage and Crimes against Humanity, expands his range beyond the usual suspects of the Bush adminis- tration to include liberal icons such as Louise Arbour, Kofi Annan and Michael Ignatieff, and even takes aim at hitherto sacrosanct institutions of the international criminal justice movement such as the International Criminal Court and Human Rights Watch. Mandel is mad at everybody.

His book could be dismissed as an exercise in bile except for one inconvenient fact—he has a right to be angry. The world in general and the United States in particular ignore the norms of international law with catastrophic results. In the tradition of Zola’s “J’accuse,” Mandel accuses us all of averting our eyes from this truth. The author scrupulously documents his claims according to the best standards of scholarship; although his assumptions can be questioned, few will quibble with his exhaustive recitation of the facts. Polemic this book may be, but it is a well- footnoted one.

Mandel’s thesis is straightforward and stated in his first sentence: “America’s war on Iraq in 2003 was its third illegal war in just under four years.” Applying the standards laid down by the Nuremberg Tribunal that judged Nazi war crimes after World War II, Mandel asserts that a war of aggression is the “supreme international crime.” Wars of aggression are those that do not fall within the narrow confines of the right of self- defence, and have not been authorized by the United Nations Security Council “as absolutely necessary in the collective interest of interna- tional peace and security.”

Half the book is devoted to applying the criteria of the supreme international crime to the wars in Kosovo in 1999, Afghanistan in 2001 and Iraq in 2003. The second part of the work assesses the legal response of the international criminal law movement to America’s flaunting of legal norms. Mandel’s scathing indictment of individuals such as Arbour and Ignatieff and organizations such as Human Rights Watch and Amnesty International is that while they uphold the Geneva Convention about the laws and customs of war in various war crime tribunals, they are silent about the crime of starting the war itself.

On Iraq, for example, groups such as AmnestyInternational have been quick to remind the bel- ligerents of their duties, have been outspokenly critical of the U.S. for declaring Guantanamo Bay to be a Geneva Convention–free zone, and have demanded investigations into civilian deaths. But the crux for Mandel is that:

Iraq has dominated the world’s conscience ever since the 2003 invasion, but the legal case against the American and British decision to ignore the Security Council is so clear-cut that even Kofi Annan, attacked by Mandel as “NATO’s friend,” declared in a BBC interview on Sep- tember 16, 2004, that the Iraq war was an “illegal” violation of the UN Charter, adding, “I hope we do not see another Iraq-type operation for a long time.”

Not surprisingly, Mandel begins his book by discussing Iraq, but of greater interest to me was his subsequent extended discussion of the 1999 Kosovo war, the war crimes tribunal created to review the crimes of the Balkan wars and the trial of Slobodan Milosevic. Mandel correctly begins by describing the Charter of the United Nations as essentially an anti-war document. Signatories to the Charter, a treaty binding on all of its members, commit in article 2 to “settle their international disputes by peaceful means.” Chapter VI of the Charter outlines a ladder of steps to peaceful resolution (mediation, conciliation, arbitration, judicial settlement, etc.), and, if these techniques fail, parties to a dispute must refer it to the Security Council. The Security Council, in Chapter VII, has the authority to use coercive means including sanctions and armed force. International law, as defined by the Charter, prohibits the use of force except for “self-defence,” or pursuant to a valid authorization by the 15-member Security Council. The 191-member General Assembly can recommend “uniting for peace” resolutions, but only the Security Council has the right to bind all members to its resolutions. In February 2003, the American, British and Spanish sponsors of the Iraq resolution could add only Bulgaria to their list, for an embarrassing total of four votes out of fifteen. The Charter was ignored and war ensued.

Canada, of course, refused to support the Iraq invasion largely because it failed to get the backing of the Security Council. Canada’s Ambassador to the United Nations, Paul Heinbecker, sought to delay the invasion by pleading for just a few more months for the UN weapons inspectors to complete their work (if accepted, such a resolution might have eventually committed a large part of the international community to joining the American coalition). But in their rush to judgement, the Americans and British would brook no further delays. Many Canadians have taken satisfaction from our adherence to the norms of international war in resisting the coalition of the willing.

However, in Kosovo in 1999, as a member of the North Atlantic Treaty Organization, Canada was willing to subvert international law by agreeing to NATO’s decision to bomb Serbia without the authorization of the Security Council. Kosovo was a test case in the new doctrine of humanitarian intervention, or the responsibility to protect. Given the war crimes in the former Yugoslavia that were perpetrated by the Serbs, and the responsibility of Slobodan Milosevic, the President of Serbia, for initiating much of the Balkan conflict, NATO made a plausible case that Serbia was planning an ethnic cleansing of ethnic Albanians in Kosovo. NATO’s case can be disputed, as Mandel does at length, but one should not doubt the sincerity of Bill Clinton, Tony Blair and other NATO leaders or their intellectual supporters such as Susan Sontag, Salman Rushdie and Vaclav Havel in advocating force to prevent what they thought would be an even greater evil. Crucially, however, as in Iraq four years later, the Security Council was not in favour of war. Russia said it would veto any resolution. NATO went to war anyway in a 78-day air campaign, justifying the war as a just and necessary action to rescue Kosovo Albanians from potential genocide.

Yet whatever the substantive evaluation of NATO’s intervention on behalf of the Kosovo Albanians (who are now mistreating Serbs in Kosovo just as badly as the Serbs once mistreated them), there can be no doubt that Kosovo was extremely important in creating the precedent that traditional defenders of international law, like Canada, were prepared to ignore the jurisdic- tion of the Security Council when it proved to be an inconvenient barrier. As Mandel states, the Kosovo war “broke a fundamental legal and psychological barrier.” In 1999, the 18 members of NATO took the decision on whether force should be used into their own hands. Britain and the United States did the same in 2003 over Iraq, and who knows what a powerful single state such as China might do in the future. In 1945, on the issue of peace and war, the framers of the UN Charter sought to bind the powerful with the threads of international law. In 1999, NATO began cutting these threads, and Canada was one of those who held the scissors.

Mandel, then, makes a powerful case that the cause of international law has received some hammer blows in recent years. But what is ignored in his book is what the international community can do to correct this, minus his demand that Bill Clinton, Tony Blair and George Bush be tried as war criminals. What is missing, too, is any extended discussion of situations such as Rwanda in which unspeakable horrors are per- petrated while the Security Council refuses to act. The relative lack of debate about Kosovo in 1999 had much to do with the collective guilt that much of the world felt over the Security Council’s inaction in 1994 over Rwanda.

As presently constituted, the Security Council is a flawed institution. It has five permanent members representing the war-time coalition of 1945—the United States, Britain, France, Russia and China—along with ten states elected for two-year terms. Except for the accident of his- tory, there is no plausible reason why Germany or Japan should not have as much right to be on theSecurity Council as France or Britain, and critical states reflective of a post-colonial world, such as India or Brazil, may have an even better case. Report after report has tumbled out of the UN on how and why the Security Council should be reformed. None has been successful because no existing permanent member is willing to give up its veto, and there is no consensus on who should join the permanent club. The Security Council is frozen in the amber of 1945.

But even if flawed, the Security Council has one great advantage over America’s doctrine of unilateral pre-emption. No leader is infallible. If one cannot persuade the five permanent mem- bers and four out of the ten elected members to support one’s action, then perhaps one should have to think again. The Security Council slows down the rush to judgement (except in obvious self-defence)—and when innocent lives are at stake, is this not a good thing? The Kosovo war of 1999 should be regarded, henceforth, as a Canadian and NATO aberration. Having returned to the Charter in 2003, in the debate over Iraq, Canada should never again stray from it.

But what of Rwanda and other cases on which the Security Council refuses to move? We should not forget the precedent of the 1956 Suez Crisis, when Lester Pearson won overwhelming support from the General Assembly in creating a volun- tary UN Emergency Force. As in 1956, states canlegally use the General Assembly to take the initiative when the Security Council balks. It is, of course, even harder to get consensus from 191 members than from 15, but it is not impossible. To do so, however, countries such as Canada, Germany, Japan, Mexico, the Nordic nations and others that are committed to the United Nations and international law must have the capacity to act if the United States or Russia is opposed. In Rwanda, there was already a legal UN force, but states with the capacity to end the genocide refused to act, and states that might have been inclined to act did not have the capacity to do so. Canada still does not have the capacity to do so, but if we are truly committed to the responsibility to protect, then we must begin to rebuild our international capacity now. What the world really needs is a coalition of the willing to make our multilateral institutions work effectively.

International law protects the weak by inhibiting the strong. A rules-based world is especially important for countries that do not have the power to break the rules. A rules-based world of international law also mitigates hubris, which can do such harm, both to the holder of great power and to its victims. International law spreads slowly, inch by inch, but the creation of the United Nations in 1945 was a conceptual breakthrough. Michael Mandel passionately reminds us of the centrality of international law, and how far we have regressed in recent years.