By Jim Miles
Special to PalestineChronicle.com
War Law – Understanding International Law and Armed Conflict. Michael Byers. Douglas & McIntyre, Vancouver, Canada. 2005.
Written as the crisis in Iraq was worsening with each news report, this book is even more significant now, as the combination of international military actions that are doubtfully lawful have spread. The over-reaction of Israel to the Hezbollah incursion, the growing rhetoric and set up of some kind of intervention in Iran, the increasing civilian casualties and lack of prisoner of war protections in Afghanistan, and a more than probable Democratic next congress that will not slow or steer the ship of state in a new direction, should all be considered within the range of arguments presented by Michael Byers in War Law.
Byers is one of the strongest writers I have come across recently, presenting very well structured and very clearly written arguments on his subjects. His stated goal with this book, one that is achieved admirably well, is “to provide the interested non-lawyer with a readily comprehensible overview of the law governing the use of force in international affairs.” His introduction alone stands as a strong concise summary of the terminology used within international law and outlines the major treaty articles that affect it. From there he presents case-by-case examples of how the laws are interpreted and applied and how they gain validity.
The clear majority of the book refers to actions of the United States, as they are the predominant military force in the world as well as having an historical propensity to use military force to achieve their foreign affairs goals. While U.S. representatives such as John Bolton (the previous ambassador to the United Nations) deride and negate international law (not with any clear rational that I could ever find) Byers operates on the idea that “the question is not whether international law exists, but how and when it matters.”
The terminology is relatively limited and clearly defined, and while I do not intend to summarize the whole book’s details, the definitions are of paramount importance. Byers indicates there are two source of international law, the first is a “customary international law, an informal unwritten body of rules deriving from ‘state practice’…what governments do…and opinion juris…a belief…that their conduct is obligated by international law.”
Customary rules (my mind tells me it is probably similar to the idea of English common law) “apply universally” and “all countries contribute to their development and change.” Any new customary rule “will not come into force until it receives widespread support.” As is presented later in the book, this is a significant factor in America’s quixotic simultaneous application and denial of international law for its “war on terror”.
The second source of international law is treaties, also named under charter, convention (as in Geneva), covenant, exchange of notes, or protocol. Treaties involve a two-stage process: the signature, which indicates intent; and ratification, which puts the obligation into force. Many treaties are accepted at the signature level, but do not make it to the ratification level (especially, it probably goes without needing to emphasize it, within the U.S. itself).
Interestingly enough for us non-lawyers there is a treaty on treaties: the 1969 Vienna Convention on the Law of Treaties that is “widely accepted…as an accurate codification of the customary international law governing treaties.” Byers singles out the most important article as Article 31(I). This article indicates that treaties are interpreted with their ordinary meaning – they mean what they say, with often a context and purpose set out in a preamble. How extra-ordinary is that! No obfuscation, no trickery. Finally, “a treaty provision prevails over any conflicting rule of customary international law.”
The UN Charter, “In addition to codifying and crystallising a number of customary rules…explicitly states that it prevails over all other treaties.” Byers indicates that the two most important articles in the charter relevant to war law in Article 2(4) on the prohibition of threat or use of force against another state, and Article 51, providing “the inherent right of collective or individual self-defence.”
There are of course qualifications, arguments, and ongoing debate about the application of these rules, especially with the U.S. willing “to use its military power in legally questionable circumstances”. Yet as much as the U.S. may defy international law and rules (interestingly enough for a country that uses the rhetoric of “rule of law” and “good governance” in its own “free market” agreements and arguments) does not spell the end of rules, but does influence the discussion on their shape and effect.
-Jim Miles is a Canadian educator and a regular contributor/columnist of opinion pieces and book reviews to Palestine Chronicles. His interest in this topic stems originally from an environmental perspective, which encompasses the militarization and economic subjugation of the global community and its commodification by corporate governance and by the American government.
