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Friday, February 7, 2014

Guest Post: Invoking the language of ‘savagery’ and ‘barbarism’ in international law debates

A decade after Iraq, the chemical weapons attacks against Syrian civilians in Eastern Damascus on 21 August 2013 sparked a political and public debate in the United Kingdom about the legality of military intervention. For international-law veterans of Kosovo and Iraq, the central question was familiar: in the absence of authorisation by the United Nations Security Council, would it be lawful to undertake military action against Syria?

Both camps claimed to have international law on their side. For its advocates, military action was necessary in order to uphold international law. ‘We cannot afford the weakening of the global prohibition against the use of chemical weapons’, wrote British Foreign Secretary, William Hague, in the Daily Telegraph. To intervene, Paddy Ashdown told the House of Lords, would be to act as a ‘bulwark for international law and above all to protect one of the few pillars of international law that has been in existence for 100 years and more – against the use of chemical weapons and against gas.’

The publication of a note on 29 August, setting out the British Government’s legal case was headline news. If the Security Council is blocked from acting, the note advised, the United Kingdom could take ‘exceptional measures’ to ‘alleviate the scale of the overwhelming humanitarian catastrophe’ by ‘deterring and disrupting the further use of chemical weapons’. This doctrine of humanitarian intervention would be available to the United Kingdom providing three conditions were met:

there was ‘convincing evidence of extreme humanitarian distress on a large scale requiring immediate and urgent relief’; it was ‘objectively clear’ that there was ‘no practicable alternative’; and any use of force was ‘necessary and proportionate to the aim of relief of humanitarian need’.

As the BBC’s legal correspondent, Clive Coleman, observed, this steered a course ‘very far’ from Iraq-styled regime change.

On the other hand, opponents argued that military action would undermine international law. Green Party MP, Caroline Lucas, warned the House of Commons that intervening without a Security Council resolution ‘would send a message to everyone else that international law can be ignored when it is inconvenient.’ International lawyers cast ‘legal doubt’ on the Government’s case. There is ‘very little evidence of state support’ for the doctrine of humanitarian intervention, Dapo Akande told the Guardian newspaper. Indeed, most states had rejected it. Even if it did exist, the British Government’s conditions were ‘too lax’. A rule of humanitarian intervention would not merely be about ‘deterring and disrupting’ the use of chemical weapons but about preventing and stopping their use. As there were still other options available – the General Assembly, the International Criminal Court — the legal conditions, Akande concluded, had not been met.

The media debate over the legality of intervening in Syria highlighted some perennial problems of international law: its indeterminacy; its unenforceability; its susceptibility to Great Power politics. Yet, by focusing on the question of legality, the debate also obscured another deeper set of questions (and problems) about the relationship between international law, humanitarianism, and intervention. Can humanitarian interventions be distinguished from the earlier history of imperial or illicit interventions? Does a focus on intervention to prevent human rights abuse in Syria divert us from seeing the ways in which our everyday interventions in the Arab world (the arms trade, the World Cup) legitimise repressive regimes and contribute to human rights abuse? How should we respond to the reappearance of a civilisational discourse that characterises the use of chemical weapons as ‘barbarous’ when, historically, that same discourse was deployed to justify the use of chemical weapons against colonial peoples? And does it matter that the humanitarian interveners of today are the colonial powers of yesteryear?

This last question is likely to resonate in Syria. August 2013 was not the first time that violations of the laws of war by a powerful, unelected government against the civilian population of Damascus had sparked an international outcry. From 18 to 20 October 1925, in response to a popular uprising against its rule, France bombarded Damascus, causing an estimated 1500 civilian deaths and widespread destruction of property, and precipitating a now famous exchange in the American Journal of International Law. For the international lawyer Quincy Wright, the bombardment of Damascus (as an undefended city) was a violation of the laws of war (in particular, the Hague Conventions of 1899). For US Army Captain Elbridge Colby, on the other hand, France had not violated the laws of war for the simple reason that the laws of war did not apply: civilised peoples (such as the French), Colby explained, were not bound by the rules of international law when engaged in fighting ‘savage tribes’ .

It is tempting to consign Colby’s response to Wright to international legal history – a footnote to international law’s colonial past. Yet, is there not a parallel between the argument Colby deploys in favour of unconstrained colonial warfare in Syria and those relied upon by contemporary proponents of humanitarian intervention? For Colby, the Syrian rebel is ‘the savage’ — denied the protections of the laws of war. For Hague et al, the Syrian Government is ‘barbaric’ — denied the traditional protections of sovereignty. In both cases, the language of ‘savagery’ and ‘barbarism’ is invoked to justify the Western bombing of Damascus.

Catriona Drew is a lecturer in the Law Department and the Centre for International Studies and Diplomacy (CISD) at SOAS, University of London, and co-director of the Centre for the study of Colonialism, Empire and International Law. Matt Craven is Professor of International Law, Dean of the Faculty of Law and Social Sciences and co-Director of the Centre for the study of Colonialism, Empire and International Law at SOAS, University of London. Catriona and Matt, alongside Stephen Humphreys, Andrew Lang and Susan Marks form the editorial team behind the London Review of International Law

The London Review of International Law is a new journal, published by Oxford University Press, which publishes highest-quality scholarship on international law from around the world. Reflecting the pace and reach of developments in the field, the London Review seeks to capture the ways in which received ideas are being challenged and reshaped by new subject-matters, new participants, new conceptual apparatuses and new cross-disciplinary connections.