March 29th, 2007

The British sailors and the UN: international law and the enforcement problem

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.

31 Responses to “The British sailors and the UN: international law and the enforcement problem”

  1. dustoffmom Says:

    Iran, IMO, has zero concern what the UN or any other nation thinks or does. They continue to push and push and push that envelope and will do so right up to the day they are 24 hours away from ‘going online’ with their nukes and see the Israeli jets crossing their border. Then they will squeal like little pigs to the aforementioned UN for ‘protection’ against the Little Satan’s assault. There is no mediation or negotiation possible with these so called leaders. The sole thing they recognize is full out force….but sadly our Western leaders are too PC these days to say what they mean and mean what they say. We’ll huff and puff and tip toe around it all until the bitter end and then sputter in rage over the outrageous actions of Israel. Courage….it matters, but it’s seemed to disappear of late.

  2. Ymarsakar Says:

    Ya, somehow Neo, somehow.

  3. Elliott Joseph Says:

    “This sort of thing would be almost risible if the issues weren’t so serious.” Exactly. But rather than the “nations of the world”, it depends in this instance specifically on Britain to do something about this crisis.

    So far we have fallen terribly short, and I shudder to imagine the consequences. But while our media are colluding in the defensive, losing position (see here), there doesn’t seem much hope of action from us.

    Which, I’m sorry to say, can only end up making life harder for Uncle Sam. Gosh, how they must be celebrating in Tehran!

  4. Cappy Says:

    Can’t see a diplomatic solution to this one. Nukes are the answer.

  5. harry Says:

    Royal Navy Destroyer………………$15 Billion

    Latest guided anti-ship missile…….$50,000 ea.

    15 Assault rifles w/ammunition……..$30,000

    Will to use them………………….Priceless

    Next time try some ‘gunboat’ diplomacy. I swear, you’ll like the outcome much better.

  6. goesh Says:

    We know that China has energy contracts with Iran and we know the Russian connection to Iran. We know the fears business orientated people have about Iran choking off the flow of oil tankers in the strait of Hormuz. We know the fear some people have about nuclear contamination of Iranian citizens if Iran’s nuclear sites are attacked. We know the fear some people have about our troops dying in combat. We know the fear some people have about conflict with islamic powers, that it creates more anger and more terrorists. We know the fear some people have about spending tax dollars on war when the outcome of said war is very unpredictable. All this fear can be consolidated into inaction, or blathering at the UN, invoking UN-speak. There is no consensus or consolidation of fear on what Iran can or could do once armed with nuclear weapons, well, unless you happen to be a Jew living in Israel that is. That tiny nation seems to be somewhat unified on that anyway, after all, Ahmadenijad has made it clear what he intends for Israel. There seems to be little thought being expressed on what could happen in a true nuclear war, other than Israel and Iran turning into glass. Could a nuke fall short and contaminate the gulf oil fields for several hundred years for instance? Could other major cities be targeted for whatever reason? Would Iran want to maybe settle some scores elsewhere beside settling scores with Israel? It seems for the common good of the planet that force be used against Iran to stop their nuclear production and let fewer people suffer from such action now than a multitude more at a later date. Why shouldn’t say 300,000 Iranians suffer some form of nuclear contamination as compared to millions of others in Israel, Jordan, the palestinain enclaves, southern Lebanon, possibly Saudi Arabia and Kuwait, etc? There is no logical reason to believe that Iran won’t use nukes against Israel in some capacity once attained and this situation involving the Brit sailors is part and partial to that mentality, nothing more.

  7. goesh Says:

    I wonder if I could reference a site that has some good discussion on this and other military matters? Said site consists mainly of military, active duty and retired, analysts in various capacities, some academics, a few spooks and assorted others?

  8. Ymarsakar Says:

    Law and Order is a product. That’s how I view it, Neo. People can promise that they can provide the product, but that doesn’t mean they will actually deliver. And if they should fall short, iany money you paid them will be for a con, more or less. And that’s what the UN is, isn’t it, a con game.

    It is true as you say that wars occur because of a break down in the enforcement of law. Two parties cannot depend upon an objective third party to be an honest broker and represent the interests of both parties if both have no belief that any deals will be enforced with a power that they could not match. A real mediator or peacekeeper isn’t so much a “counselor” as an executioner. Meaning, there’s this sword of damocles hanging over both faction’s heads, and unless they want a pox on both their houses, they will obey the dictates of the Sword. That usually keeps peace, first by repressing and making people afraid to do things, and then providing them with an easier, more peaceful, and safer alternative… our alternative.

    There’s two components to Law and Order as far as I can distill it. The enforcement component, that you covered, Neo. And the justice component, which concerns itself with being fair and representing the interests of both parties. Obviously we want a strong mix containing both. Also, though, justice tends to feed on enforcement and enforcement also feeds on justice. There is no point to finding someone’s guilt, if their punishment is light. And there is no point to punishing the guilty when they aren’t really guilty.

    In government theoretical systems, Neo, this is a problem because so far we have not yet produced a tech that will detect lies with a 99% accuracy. And until we do, the rot of decay and entropy is setting in and corrupting our civilization as occured in Ancient times. It is not dishonesty, deception used against the evil decay and to preserve the good and innocent would be a good thing. No, dishonesty is only a symptom of the problem and the decay from inside Western civilization. It betrays a weakness, a fear of oneself, and an inability to break free of paralysis by confronting and dealing with real events.

    But the UN and Amanie aren’t regular cases, which is important. Because while a government system of justice has to take into account how to find whether a defendant is guilty, the world has already taken care of that little problem for us already. We know who is guilty, Neo. All that is left, is to enforce the punishment. Half of the problem just went away, and yet people still act like they are paralyzed.

    And that’s why the Left’s promise of Law and Order are fake. They would not enforce it even if they knew the one being punished was guilty.

  9. Michael Brazier Says:

    I think the USA does have a diplomatic response to this: announce that, until the 15 British sailors are released, the US armed forces will treat anyone they capture in Iranian military uniform, or anyone proven to be serving in the Iranian military, as spies, not lawful combatants. Add that if any of the sailors die while in Iran’s keeping, all those responsible for the deaths must be remanded to US or UK custody as well, or this policy will continue in effect. Quote the clauses of the Geneva Convention regarding captured spies, just to remind everybody what’s at stake.

    In other words, the US revokes the POW protections for Iran’s soldiers until Iran gives up those persons it has unlawfully taken. I think this is legal under the Convention, and it would be a serious threat, since I hear we already have a number of Iranian soldiers in custody, taken while fighting in Iraq …

  10. Travis Says:

    International regimes are always subject to the powers which control them. This is true, just as peace is a happenstance of the fear associated with attacking an equally powerful opponent. We really shouldn’t be surprised that there is no UN force outside the few nations powerful enough to support it. International regimes do however have the effect of (I’m quoting Nye and Keohane-I hope you’ve heard of them) reducing the transactional costs of cooperation between states. In my opinion the interaction of these concepts explains the current state of world affairs.

  11. strcpy Says:

    I figure there will be a “diplomatic” solution where the hostages are released and Iran gets most of what it wants and it is declared a “success” for the west and is what the US should follow.

    Then in the next few years, maybe even decades (if we are lucky, I guess – IMO better to rip the bandage off quickly in one go than slowly pull all the hairs out) it will all crumble down.

    Hopefully it will all be done diplomatically, but so far I have not seen any diplomats that seem to even be able to admit the problem and work towards the solution. At least in the cold war we did that. We seem to be worried that we will hurt their self esteem.

  12. sergey Says:

    It is time for some bombing of Revolutionary Guards targets – their barracks, camps, for sinking their ships and abducting their operatives worldwide. Use Kurds rebels for this, even Marxist ones. This would be symmetrical response to Rev. Guard activity elsewhere.

  13. armchair pessimist Says:

    Even in their hayday, the European powers would submit to acts of piracy in that region. It took the USA under Thomas Jefferson to try another approach.

    Goesh: What is the site?

  14. The Unknown Blogger Says:, Harry asked an excellent question:

    I must’ve been missing this, but where was the cover?

    Then Richard Aubrey replied:

    The ship covering the op requested permission to shoot. The commanders back in London refused.

    Which unfortunately is complete malarkey.

    The real story can be found here, the highlights of which are:

    The British sailors and marines being held by Iran were ambushed at their most vulnerable moment, while climbing down the ladder of a merchant ship and trying to get into their bobbing inflatables.

    Out of sight of their warship and without any helicopter cover, their only link to their commanders was a communications device beaming their position by satellite.

    That went dead as they were captured. One theory is that it was thrown overboard to prevent the Iranians getting hold of the equipment and the information it contained.

    — The Royal Navy does train its men in the techniques needed to fight at just such a dangerous stage. “They had all the rights available to act in self-defence under law,” a senior military officer said. But they were in an “almost impossible position”

    PS: Neo, very irritating how linked sites get placed at the beginning of comments, no?

  15. John F. Opie Says:

    Hi –

    Great post, as usual, but you’re wrong on one critical point: the laws of war, where you seem to think that war is a time when laws have broken down.

    Au contraire! War is a time when politics uses violence to achieve its goals: this is basic Clausewitz, and the man is as important today as he was back then.

    The laws of war govern how countries fight in order to avoid the bellum perpetuum where atrocities were the order of the day, armies lived off the land and where destruction of the countryside was part and parcel of how war was fought. The laws of war declare what is agreeable – and by being a signatory you declare that so – and accepted rules of conduct so as to make the best out of what is invariably a bad situation. Parading prisoners through town and letting the townspeople ridicule and abuse them doesn’t help wars conclude quickly, but rather inflames war sentiment, and there is good reason why that rule is there.

    Rules of war, laws of war, have everything to do with controlling the conflict. War is never some sort of violent orgasm, totally out of control (well, at least it’s not in the civilized world) orgies of destruction, but rather the use of force to reach political aims. We, the civilized countries of the world, decided that if war is to waged, we want wars to be wars of politics, not of country destruction.

    The destruction inflicted on Germany and Japan in WW2 was a by-product of the political aims (unconditionall surrender meant breaking the will of the enemy), but not a goal in and of itself: neither the US nor the UK set out to destroy for the sake of destruction, as that is taboo under the Geneva Convention.

    Please understand what these laws are all about: they are not an oxymoron, but rather make war less destructive and infinitely less inhumane.

  16. tequilamockingbird Says:

    The captured Brits are making videotapes and writing letters saying how they’re guilty of all kinds of stuff and how Britain and the US are terrible villains for invading Iraq. Is anyone on the face of this earth naive enough to believe that these are the true sentiments of these volunteer troops? Not likely.

    So where does that leave the statements of those who have been subjected to CIA torture in Guantanamo and the secret prisons? Sauce for the gander, perhaps?

    Love and kisses,

  17. Tom Grey - Liberty Dad Says:

    Great post Neo, but still too weak about ENFORCEMENT.
    Enforcement IS the “law”, and is (usually) based on violent force. Even if unwritten, and unspoken. In Fallujah after Saddam fell, but before it was liberated, there was “law” — do what the murderous terrorists said, or else be killed. Or have your family killed.
    Obedience to the greater power.

    The World needs a Human Rights Enforcement Group of the USA and India, with as many other democracies as are willing to send troops.

    For Iran, the British should declare a blockage — and stop imports of refined gasoline. They should declare war, but almost certainly won’t.

    Medium term, the USA should be training Iraqi pilots in modern, US jets — and cruise missiles (non-nuclear). The US should support Iraqi retaliation / negotiation with Iran. Every bomb that kills any Shiites in Iraq, and Iraq should send a cruise missle to attack the Mullah leaders and try to kill them. Or to attack oil production facilities.

    No nukes. Nukes are not necessary, nor desirable.

    Better to try to grab NW Iran / Iranian Kurdistan, with Israeli forces and massive small arms for the local Kurds and look for Iranian Kurdish leaders to declare independence from Tehran (civil war), with US & Israeli support for freedom and democracy. Not attack Iran — Liberate Kurdistan. And arm & support Kurds who accept being US allies.

    The Kurds should be attacking Turkish oppression, too — No Turkish Empire in the EU
    Turks must allow Kurds to Be Free … etc.

    Iranian neighbors need to stop Iran; the US & UK should help. But the UK probably won’t.

  18. ZZMike Says:

    I don’t know if Iran signed the Geneva Convention, or if it even applies, seeing as how Iran isn’t at war with anyone. It’s a simple rogue nation hostage situation.

    TQMkgB makes a nice try, playing the Guantanamo card, unfortunately, the detainees at Guantanamo gained 5 or 6 pounds while there – and that was 2 or 3 years ago – and that’s just for starters.

    The last time Iran took hostages, president Carter tried diplomatic solutions for about a year. Then Reagan came in, and he let it be known that stronger measures were needed, and he was the guy to do it.

    There’s a current YouTube video of somebody making a speech at the UN, before the Human Rights Commission, telling them what a dog’s breakfast they’ve made of it (he was quite polite). At the end of the speech, the chairman[?] said, in effect, we’re insulted by what you say, and don’t nobody try to do it again or we won’t put it in the record.

  19. tequilamockingbird Says:

    zzmike: So the detainees got fat on Gitmo luxury, did they? I guess they weren’t waterboarded or subjected to the Bush/Cheney rules of interrogation, then? Well, I guess we’ll have to just accept that their statements were made without coercion. Yeah, I guess all those things they confessed to must have been genuine.

    Unless, of course, the Brits in Iranian detention put on weight (from inactivity, maybe?) Then we’ll have to conclude that, being well fed, their statements were genuine and uncoerced. Right?

    Proof of a prisoner’s veracity a function of his weight? That’s a new one to me.


  20. tequilamockingbird Says:

    The statements made by anyone held in Guantanamo or a secret CIA prison must be true and accepted at face value; the statements made by our own people, held by a hostile power under duress, must be false and rejected.

    Sure, that’s transparently true — at least on this blog.


  21. Daniel in Brookline Says:

    icrc.orgAn interesting post, Neo.

    I agree with John Opie. The “laws of war” are, essentially, agreements along the lines of “I won’t do that if you don’t”. That is, so long as the United States (for example) is fighting against a nation that treats PoWs according to the Geneva Conventions, the US has promised to treat PoWs the same way. Mistreat American PoWs, however, and the gloves can come off.

    (Note that I said “can”. The will to act is important here, as the British are learning to their sorrow.)

    The concept of “international law” is a murky one, but it winds up in the same place — countries agree to do certain things, or to avoid doing certain things. These agreements cannot be enforced except by war — but the threat of war can be one heck of a deterrent. (Again, the will to act — and, perhaps more importantly, the appearance of having the will to act — makes all the difference.)

    Sometimes it seems to me that people see civil laws working, in our Western democracies, and ask “why can’t the same thing work on the international level?” (Some of them then try to make it happen, on the theory that wishing will make it so; see the International Criminal Court.)

    But the reason is simple. In the United States, we have an overarching authority to enforce the law and punish the lawbreakers. But there is no equivalent on the world stage. We don’t have a World Government… and wishing will not make it so.

    Instead of small squabbling parties and an overarching government with the authority to settle matters, we just have the small squabbling parties — and “justice” is whatever they can get away with, meaning whatever some nations let other nations get away with. When there is no overarching government, the situation changes radically.

    So, when people complain about the United States being the world’s policeman, I want to ask: who would you rather see do the job, and do they have the capability to do it? Maybe we’ll have a world government someday, but we don’t have one now — and until then, somebody’s got to be the policeman, unless you truly think that having a cop on the corner isn’t as good as general lawlessness. And I don’t see anyone else stepping up to take on the responsibility.

    ZZMike: yes, Iran is a signer of the Geneva Conventions. And yes, they have violated the Conventions rather blatantly. I guess we’re about to see how seriously people really do take the Conventions; this is just the sort of situation the Conventions were intended to prevent.

    Daniel in Brookline

  22. Clyde Says:

    The United Nations is simply the League of Nations with pricier real estate. It serves no useful purpose. As Obi-Wan Kenobi told Luke Skywalker when pointing out Mos Eisely, “You will never find a more wretched hive of scum and villainy.”

  23. The Unknown Blogger Says:

    ZZ Mike said:

    “The last time Iran took hostages, president Carter tried diplomatic solutions for about a year. Then Reagan came in, and he let it be known that stronger measures were needed, and he was the guy to do it.”

    In fact the last time the Iranians “took hostages” they were released after 3 days of diplomacy.

  24. Badger Says:

    monthlyreview.orgCraig Murray that maritime boundaries between Iran and Iraq are extremely dubious.

  25. Ymarsakar Says:

    Is anyone on the face of this earth naive enough to believe that these are the true sentiments of these volunteer troops?

    Is anyone on the face of this earth naive enough to believe that Nigerian scams are the real deal and send money to them?

    Ya, (gear shift) actually if you go by the fact that the Iranians are still sending them out. Why make these messages up if nobody believes in them? Well obviously somebody does. In point of fact, people believe precisely because they think they are immune. If you think you are immune to Iran’s propaganda, you start behaving like a fool and not taking appropriate precautions.

    Tequila couldn’t even remember that he wrote 19 consecutive comments on Neo’s blogger site, even going so far as to accuse me of lying when I brought it up. And Tequila thinks that it isn’t “likely” that people could be fooled? I think Teq needs to stop fooling himself with an overcompensated sense of invulnerability.

  26. tequilamockingbird Says:

    Ymarsakar: You are a demagogue and an asshole. What you are saying is technically true, but you know it to be a dishonest representation of the true situation — this was the first blog I ever participated in, years ago, and I sent 19 consecutive messages — over a period of several weeks — to an archive. You’re a dishonest prick. You don’t work for the Bush administration, by any chance? No, of course you don’t. You’re too damned stupid.

  27. Lee Says:

    Boy, ymar, you must have hit a sore spot with poor tequilamockingdweeb. If you are “technically” correct, I guess TMDweeb is guilty of a “technical” foul(or is that “fowl”?)

  28. Lee Says:

    By the way, it’s not called “Club Gitmo” for nothing.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.

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