Many years ago I took a course to be certified as a volunteer divorce mediator in the state in which I lived. The profession was then in its infancy, and it sounded like such a good idea: the adversarial nature of the legal system probably escalated the difficulties involved in divorces, so why not try to take some of the destructive bitterness out of the process by going a different route?
I got the answer quickly enough when I observed couples actually trying mediation. My conclusion was that, except in rare cases, mediation tended to work for those who didn’t need it and to fail abysmally for those who did. It was especially inadequate when there was a great deal of rage and/or where the power differential between the spouses was too great—and those two situations covered an awful lot of couples. No, divorce was just a sorry and nasty business in most cases, and there was no use pretending otherwise.
Why bring this up now? I’ve been ruminating about international law lately in connection with the taking of the fifteen British sailors, and there are some similarities in the problems found in divorce mediation and in international law.
Today Britain “takes case against Iran to UN” and asks that the Security Council “support a statement that would ‘deplore’ Tehran’s action and demand their immediate release.”
This sort of thing would be almost risible if the issues weren’t so serious. And yet even that small and rather toothless step, “deplore” and “demand,” is running into trouble in the UN from Iran’s buddy Russia, which doesn’t like the language in the resolution stating that the sailors were in Iraqi waters when captured. Or at least, that’s the excuse Russia gives; my guess is that they just don’t want to anger their client Iran.
What is international law, anyway? A set of agreements between nations on a host of things. The “easy” parts of international law are those governing transactions such as trade, or deciding which country’s law should be applied in cases where several countries might have jurisdiction. That sort of thing is mildly analogous to what we call civil law in this country.
These areas of human endeavor are commonly less emotional than the criminal arena, and although there are certainly heated disputes on these issues they don’t tend to be resolved by violence. Countries involved in these types of dispute are usually somewhat like the couple who really doesn’t need mediation; they’re in some sort of basic agreement to abide by the court’s decision, and so no real enforcement is even needed.
And then there’s the law of war, another part of what’s known as international law. This is more like our criminal code, or like the couple who are so at each other’s throats that mediation isn’t going to lead to an agreement—or, if it does, it’s going to lead to an unfair result.
Both civil and criminal cases under our laws in the US and other countries have means of enforcement, but enforcement usually doesn’t have to be employed because most people are in voluntary compliance. This is so for several reasons. The first is that many people (especially in civil cases) are interested in following the law rather than in defying it, because they are basically law-abiding. It’s part of the societal contract many of us make as citizens of the nation. The second is that there is an implied threat for any noncompliance, enforceable relatively easily because the state/nation can find the offender and increase the fine or even imprison the scofflaw. Setting bail is another way (often successful) to attempt to enforce compliance by making the penalty for fleeing higher than the offender can afford. People can be made to comply with the law because they reside under the court’s jurisdiction, whereas fleeing (for example, to another country) would make it much more difficult to enforce the law.
In contrast, there is something almost oxymoronic about the phrase “the international law of war.” War is, almost by definition, a situation in which ordinary law has broken down. Also, wars are traditionally between nations, and no sovereign state has jurisdiction over any other, except by consent, and in a very limited way (treaties, for example–but these are between allies).
So how is international law to be enforced, then? Some nations are like those law-abiding citizens who simply comply with the law, and only look to the courts to settle simple disputes involving trade and other civil matters. These nations sign treaties that govern their behavior in war because they think it’s right (well, for a few), and because they want to create a community of nations that mutually respect each other and those laws. It’s in everyone’s mutual interest that this be so, at least theoretically.
Such a community exists. Once again, those who adhere to it and its rules are something like the couple who can mediate their own divorce with just a little legal help to look over the agreement. But there are many nations, and many rulers, who are outside that community and find the thought of abiding by its rules laughable. They are analogous to the couple who cannot mediate; some other method must be used to deal with them.
The signatories to the Geneva Conventions are not bound by those conventions in the sense we usually mean by the term “bound,” because there is no way of compelling them to follow the rules. “Enforcement” in such cases starts with a combination of the honor system and the fear of losing face among other nations. The real “teeth” in the conventions consist of the fact that, if a war occurs between signatories, each country will treat the other’s fighters well because it wants its own fighters to be treated well. A trial for violations of the Conventions could occur before or during a war, but it would be a joke, with no means of enforcement other than sanctions against the country involved (which are available even without a trial). A true trial with consequences and jurisdiction could only happen after a war, at which time those responsible for the violations involved would finally come under the jurisdiction of the world court (for what that’s worth), or the leaders’ former subjects (such as what happened with Saddam in Iraq).
In a case such as the present one concerning Iran, the nations of the world don’t quite know what to do—or aren’t willing to agree to do it—and Iran knows that. International law suggests that sanctions are the next step, and in fact right before the current incident the UN had just unanimously voted to apply sanctions to Iran for its nuclear defiance. Sanctions do in fact have some force if applied properly and drastically, but they rarely are (see: Oil for Food Program).
Iran has taken a financial hit recently from banking sanctions that actually do seem to have had some effectiveness (see this for a fuller explanation). But these sanctions were not the result of international law; they were the fruit of successful efforts by the US itself to enlist other world countries in the endeavor to stymie Iran financially (here is another good discussion of the intricacies of financial sanctions).
So, sanctions have their place, but they have their limits when dealing with a country bent on causing trouble, and one not all that concerned with the welfare of its people. They also have the drawback of having loopholes—there will probably always be countries (or individuals or groups) willing to get around them and trade with the shunned nation.
That brings us to alternative means of enforcement. Which brings us once again to that much-maligned (including by me) institution—the UN, and in particular its Security Council. Here is the relevant law:
Under the provisions of [Chapter VII of the UN Charter], the Security Council may determine the existence of any threat to the peace, breach of the peace or act of aggression, and may impose mandatory sanctions to try to rectify the situation. The sanctions may be economic (such as a trade embargo against a country threatening the peace), diplomatic (such as severance of diplomatic relations) or military (the use of armed force to maintain or restore international peace and security)….
Military? Military? Well, not exactly:
Security Council sanctions involving armed force have never been used in quite the form contemplated by the UN Charter. As drafted in 1945, it set out a system by which member states would agree to hold armed forces and facilities ready to respond to the call of the Security Council. If the Council decided to use armed force, it would call on those forces in accordance with the agreements. No such agreements have ever been entered into. Thus, when the Security Council has authorized the use of armed force to counter an act of aggression-as in Korea and the Persian Gulf-it has simply authorized member states to “use all necessary means to restore international peace and security.”
And there you have it: ultimately, no real teeth except the teeth provided by member nations, which is the way it used to be before the UN was formed. The UN acts something like a cheering squad in these cases. “Go get ’em!” it says to the member nations–which, somehow, often ends up being one member nation: that much-maligned country the USA, and to a lesser extent its ally Britain.