International law is not broken; our commitment to and defence of it is

‍When it comes to Iran, international law is broken and should not stand; at least that is what a recent Globe and Mail editorial assures us. As such, the illegal US and Israeli war against Iran is apparently fully justified. There do not even seem to be any particular guardrails around that permission (if it’s broken, international law no longer deserves or requires respect).

‍Let us pause for a moment and reflect on the implications. Just exactly where does this view of the role, importance – and utility – of international law take us in the end?

Seems that we are to leave it to Donald Trump and Benjamin Netanyahu – and the countless other blowhards, conceits, bullies, racists, fascists, misogynists, criminals, warmongers, corrupt megalomaniacs and international law-detesters of our world, of which there are sadly no lack – to decide when another country’s government has crossed intolerable red lines such that they become a legitimate target for a massive military assault, and their peoples the unfortunately inevitable collateral victims of the horrors that will unleash (this is war after all).

There is no doubt about it. We do have major institutional and, more to the point, political and geopolitical problems when it comes to enforcing international law. The UN Security Council is paralyzed by the unconscionable ways that the veto power held by just five states is used or threatened to be used time and again by not only Russia (as has indeed been the case over many years vis-à-vis Iran, though most recently Russia abstained and did not veto a resolution condemning Iran’s retaliatory attacks against Gulf States), but also the United States (Gaza) and China (Myanmar), to thwart concerted international action to address genocide, war crimes and crimes against humanity. The number of times those three countries have flexed their veto muscle to stand in the way of human rights and humanitarianism, in all corners of the world, should make us both weep and rage.

Security Council isn’t up to the task, so let’s look elsewhere.  Someone else has to decide. Why not Donald, who has been working on his new Board of Peace after all and has been celebrated by none other than FIFA for his commitment to world peace? And Bibi, who does not take much convincing to unleash genocidal military fury?

Decide, with no particular accountability, globally or domestically. No matter, accountability is so overblown and is rarely backed up with any real consequences in the end.

Decide, with no necessity – legal or moral – to offer a credible (let alone lawful) justification, in fact it is fine to change the justification on a daily basis and even offer contradictory explanations. It is complicated after all.

Decide, to continue with such attacks, as Donald Trump now suggests regarding Kharg Island, “for fun”. But we all know he says things he doesn’t mean all the time, so we can ignore that.

Decide, with no thought to having a reasonable long game as to what comes next. Someone will figure that out, eventually. (And it has always gone well in the past, just ask the people of Iraq and Afghanistan.)

Decide, regardless of it being obvious that the potential for the bombs – and deaths – and the economic fallout to spiral and spread in countless directions and even have global impact is inevitable. And so it has been. Sorry about that, war is tough.

Decide, even though it sets a deadly precedent and gives permission to other “leaders” to do the same thing elsewhere.  Maybe yes, maybe no, we can’t account for what others will do after all. Not today’s problem.

Is all of this in keeping with Mark Carney’s exhortation that we have to take the world as it is? Save us all if this is the direction in which  we are now expected to travel.

Let’s get one thing straight though. The imperative here is not about international law protecting the Iranian “regime”, as the Globe and Mail editorial posits. Of course not. In fact, there are countless international legal obligations, institutions and processes that should have been used to target, sanction, punish and pressure that regime long, long before we reached this point in time. Rather, at this particular moment the imperative surely is to ensure that international law protects Iran, the nation, and most importantly, that it protects Iranians.  That is where our concern needs to be laser focused. The crucial international legal rule prohibiting one state from unilaterally launching an armed attack against another (absent a Security Council authorization or an immediate need to attack in self defence in the face of an imminent threat that can only be met with force) is grounded in that bedrock concern.

What is so glaringly missing from this editorial is a clarion call for international law to be championed and enforced, in its entirety and always. And to be championed at the outset, so that there is no compulsion to rip it up at the end of the line. These vital and, yes, not always easy and straightforward questions about the applicability and limitations of international law are not to be left to the last minute, when the question has been distilled to a crude choice as to whether or not to bomb. That is where the international community has failed the people of Iran, abysmally, for decades. 

Yes, there have been expressions of concern and condemnation. And there have been sanctions, scattered and uncoordinated, from various governments. Along the way, very little has been initiated to ensure that Iranian officials responsible for extrajudicial killings, torture, rape, institutionalized discrimination against women and other grave and unspeakable human rights violations, faced justice and were held accountable for their crimes, even as they travelled, studied and immigrated to other countries. And no state or states emerged to catalyze a vigorous and coordinated global effort to truly tackle Iran’s egregious, brutal human rights record over the decades. Many words, much less action. Too many other interests and competing priorities took precedence. As is so often the case when it comes to a true embrace of universal human rights, not only in Iran. 

There is an international legal principle, championed by Canada in fact and adopted by the UN General Assembly, known as the Responsibility to Protect doctrine, that lays out the exceptional situations in which it may be justifiable to use military force against a government that is responsible for what are often termed mass atrocity crimes, such as genocide, crimes against humanity and war crimes.  It is predicated, however, on exhausting all possible efforts to prevent and punish those crimes through other means. Military force, with its inevitably lethal consequences, is to be an absolute last resort.

We have come up far short on that front. Instead, the test seems to have become: perhaps there was much we could and should have done to more seriously address Iran’s abysmal human rights record, nuclear program, destabilization in the region and existential threats against Israel, but we were never really able to get to that in a serious and determined way, so now it is time to go to war.

That is the international legal failure that should fuel our outrage and concern. And it does not point us towards giving Trump and Netanyahu carte blanche to decide when to send their fighter jets into the skies. Rather, it should catalyze a colossal, all hands on deck effort, from the grassroots up, top down and from as many directions as possible, to reinvigorate the foundational principles of the UN Charter, the Universal Declaration of Human Rights and all the human rights instruments that have followed, the Genocide Convention, the Geneva Conventions, the Refugee Convention, the Rome Statute, the Arms Trade Treaty, the Sustainable Development Goals, so very urgently, the Paris Agreement on Climate Change, and more. They are not just dreamy and naïve aspirations for a better world. They offer concrete solutions. In fact, they offer the only equitable and sustainable solutions to the massive challenges our world faces.

Let us not run away from international law because of its obvious imperfections. Let us run towards it, to lift it up, finally, as humanity’s best chance. Let us ensure that we reject, always, the double standards (there are many, usually driven by greed, self-interest and racism) in how and when we turn to international law. Let us stand up for its principles, even when we might be a lonely voice (others will join: middle powers of the world, arise). Let us do the hard work of fixing its deficiencies, such as Security Council reform, rather than shrug our shoulders because it seems like a mountain too steep to climb.

I will take international law, broken as it may be, warts and all, any day. That does not mean I sit back and accept the status quo. Far from it. I will demand more and better, every day. That is how international law will soar, not through looking for excuses to throw it out the window.  I refuse to leave any nation’s fate, let alone the well-being of our planet, in the hands of Donald Trump and Benjamin Netanyahu. I insist that remain in our hands, collectively.

The UN Charter, don’t forget, begins: We The Peoples.‍