The contents of this document are the sole responsibility of the author and do not necessarily represent the views of CCADD.
THE DEVELOPMENT OF INTERNATIONAL LAW
It would be easy to conclude cynically that international law is simply what the most powerful states, furthering their own interests, choose to say it is. Lawyers can argue with each other until they are blue in the face, it appears, but to no result. An obvious example comes to mind over the legality of the Bush/Blair invasion of Iraq in 2003. Tony Blair, anxious that what he was going to do might be illegal under international law, asked Lord Goldsmith, the Attorney-General, for advice. Apparently after a good deal of haggling among legal advisers in government departments, including one dissenting resignation from the Foreign Office, the Attorney eventually obliged, opining that the invasion was legal even though it was clear that a new resolution specifically authorising it would not be approved by the UN. The full argument of the Attorney has not been made public, so we don’t yet know exactly what his reasoning was: only a summary was published. It appears that at an early stage he thought that the war might be found illegal, but a report in The Guardian now suggests that he changed his mind between March 7th and March 13th 2003, perhaps under pressure from 10 Downing Street. Recent publication of the resignation letter from Elizabeth Wilmshurst of the Foreign Office confirms his change of mind. Whatever the truth of the matter turns out to be, Lord Alexander, a former chairman of the Bar Council, said in a lecture in October 2003 that what the Attorney did was to ‘scrape the barrel’ to make out his case, and that even so it did not pass muster. Later he continued saying the same thing. Even a sabre-rattler like Richard Perle admitted the war was incompatible with international law, although he ‘justified’ it on other grounds. Kofi Annan, interviewed by the BBC, said it was ‘not in conformity with the UN Charter, from our point of view and from the Charter point of view it was illegal’. On the other hand, Professor Christopher Greenwood of the London School of Economics obligingly argued that the war was not illegal. Who are we to believe? Was the invasion legal or not?
This is a matter of the gravest importance. Never before had the formal legality of a major war mattered so much. Perhaps this reflects a new litigiousness in international affairs, or at least an increasing reliance on the precise meanings of international legal documents, such as treaties, UN Resolutions and the like. Furthermore, worries about the erosion of the rule of law itself are becoming more prominent. For example, the UK Chief of the Defence Staff insisted that he be given in advance a cast-iron guarantee of the war’s legality before he could begin operations, in order to protect his troops from later being accused of war crimes. Naturally the politicians want to ‘move on’ from the legal debate, and concentrate on what they conceive to be the ‘moral’ case for invading another country. But the laws themselves block that path, as Blair himself half-admitted when, in a speech in Sedgefield on 5th March 2004, he proposed that the law be changed to suit post-September 11th 2001 circumstances. Be that as it may, the question remains: was the war fought on a false prospectus? Did the victims die because their governments acted in breach of international law? A lot of people want to know. And a lot of precedents may hang on the result.
In the absence of any explicit ruling by an authoritative body with the power to enforce its decision, the answer can only come if it is possible to show whether or not a judgement such as the Attorney-General’s argument for the legality of the Iraq invasion, was a genuine development, and not a corruption, of whatever consensus had been established. To tackle this problem I want to suggest that the issue of true development in international law is comparable to what Newman called the ‘development’ of doctrine over the Christian centuries. The foundation of this idea of ‘development’ is the belief that in any society, the law, including international law, is a living and evolving body of rules.
Now, talking about the life of a ‘body’ of laws implies that there can be actual growth in a legal ‘idea’, e.g. of human rights. There is nothing mysterious about this. After all, in the biological sphere life is not a feature only of the single organism but of whole species.  And within humankind the term is naturally extended analogically, beyond the biological level, to families, and even whole societies. Life is a reality in our sociology, and even in our theology. As Newman writes, ‘when some great enunciation, whether true or false, about human nature, or present good, or government, or duty, or religion, is carried forward into the public throng and draws attention, then it is not only passively admitted in this or that form into the minds of men, but it becomes a living principle within them’. The implication of his thesis is clear: ideas such as ‘the rights of man’ or ‘the rule of law’ can become truly ‘living principles’ which germinate and grow in human minds. They cannot simply be arbitrary rules of a game that the legislators of a particular state propose for their own purposes.
What happens when a living body of laws is reduced to mere promulgation of rules by the most powerful was brilliantly illustrated by Jonathan Swift in Gulliver’s Travels. The Emperor of Lilliput is telling Gulliver about the war between Lilliput and Blefescu:
‘It began upon the following Occasion. It is allowed on all Hands, that the primitive Way of breaking Eggs before we eat them, was upon the larger End: But his present Majesty’s Grand-father, while he was a Boy, going to eat an Egg, and breaking it according to the ancient Practice, happened to cut one of his fingers. Whereupon the Emperor his Father, published an Edict, commanding all his Subjects, upon great Penalties, to break the smaller End of their Eggs. The People so highly resented this Law, that our Histories tell us, there have been six Rebellions raised on that Account…It is computed that eleven Thousand Persons have, at several Times, suffered Death, rather than submit to break their Eggs at the smaller End…’ At this point the Emperor of Lilliput goes on to claim that the Scriptural text which justified his grandfather’s edict, or ‘law’, was wilfully misinterpreted by Blefescu. The true text, he claims, was simply: ‘all true Believers shall break their Eggs at the convenient End’. By reminding us of, or perhaps replacing, the exact words of the text, the Emperor hopes to solve the quarrel which led to war, by arguing that ‘which is the convenient End, seems, in my humble Opinion, to be left to everyman’s Conscience, or at least in the Power of the chief Magistrate to determine’.
Leaving a matter such as this to private conscience is, of course, a typical post-Enlightenment way out of an awkward legal and political dilemma. But the revealing point here is that the issue is not actually left to the individual conscience, but is to be decided by the ‘Power of the chief Magistrate’. In effect, the problem is to be solved, the Lilliputian Emperor is suggesting (perhaps with the connivance of Swift himself), by allowing the national legislators in each of the two contending states to decide what should happen. International law then becomes no more than an extrapolation from the municipal laws of individual states. This account of the matter rests upon the positivist doctrine that law is no more than whatever a sovereign state legislator who has the power of enforcement says it is. It follows that if a state decides to abandon the rule of law, as arguably the USA has done over the treatment of terrorist suspects at Guantanamo Bay, or Israel has done in its assassinations of Sheikhs Yassin and Rantissi, or Britain has done over the terrorist suspects held in Belmarsh gaol, then the ‘living principle’ of the rule of law dies. All that is left to us is (perhaps) to seek an opinion from the International Court of Justice. Grant all this, and there can be no such thing as the ‘rule of law’ governing the society of sovereign states as such. This amounts to denying the existence of a society of sovereign states altogether.
Yet it is clear that there is such a thing as the society of sovereign states. This comes out in the fact that every state has to have the same basic rights as every other, as Article 2:1 of the UN Charter insists, and because individual human rights are the source of the rights of states. Just as each of us individually is entitled not to be violently assaulted, so each sovereign state is entitled not to be attacked by another state. Because every state has the same task of protecting the rights of its citizens from attack by another state, and because the fundamental human rights of all individuals in all states are the same, any state has to have the right to defend itself against aggression. This is what Walzer calls the ‘legalist paradigm’ from which international law, and especially the law of war, arises. But it is more than a legalist paradigm: it is a ‘living principle’ of international society.
Yet this principle is under threat from those who wish to claim a ‘right’ to intervene in the workings of another state, or even to remove its government. How can such a pre-emptive act be distinguished from aggression? And would the change in the international legal system necessary to permit it constitute a genuine development of the rule of law? Or would it be a corruption?
Newman sketches several criteria by which we can judge a genuine development from an aberration or corruption. As I have already suggested, I think it would be worthwhile to consider them in the international law case. His ‘tests’ in a nutshell, are these:
1. Preservation of the essential idea
(‘The essential idea or type which a philosophical or political system represents must continue under all its developments…its loss is tantamount to the corruption of the system’. p. 122)
2. Continuity of the principles on which the ‘idea’ has developed.
(‘The destruction of the special laws or principles of a development is its corruption…A development, to be faithful, must retain both the doctrine and the principle with which it started’. pp.126, 129).
3. Power of Assimilation
(‘An eclectic, conservative, assimilating, healing, moulding process, a unitive power, is of the essence…of a faithful development’. p. 131)
4. Early Anticipation
(‘evidence..of the faithfulness of an ultimate development is its definite anticipation at an early period in the history of the idea to which it belongs’. p.136)
5. Logical Sequence
(‘There is a certain continuous advance and determinate path which belong to the history of a doctrine, policy or institution, and which impress upon the common sense of mankind, that what it ultimately becomes is the issue of what it was at first’. p. 141)
6. Preservative Additions
(‘A true development..may be described as one which is conservative of the course of development which went before it..an addition which illustrates, not obscures, corroborates, not corrects, the body of thought from which it proceeds’. p. 142)
7. Chronic Continuance
(‘while a corruption is distinguished from decay by its energetic action, it is distinguished from a development by its transitory character’. p. 147)
Of course, these are not tests that immediately tell us whether the examinee has passed or failed. They are cumulative suggestions, to be handled with the utmost care and delicacy (as Newman himself uses them) and with profound awareness of the complexity of the many instances needed to make an assessment.
Newman was, of course, dealing with the development of Christian doctrine. Now Christian doctrine was the outcropping, in theological language, of the life of the church in history. That is to say, for Newman, doctrine was the expression in words of the Christian idea; and it was this idea which was under constant development over time. But what did Newman mean by such an idea?
He was philosophically a child of the English empiricist tradition of Locke, Berkeley and Hume. In this tradition, language is at two removes from the reality of what actually exists. While the empiricist’s world consists of things in themselves, we can only be aware of these because of the ‘impressions’ our senses give us of them. This is roughly Locke’s theory. Language then becomes the verbal description of these impressions. And when our common experiences give rise to some more or less coherent linguistic whole based on these impressions, we arrive at the idea of this experience. ‘Dog’ for example, is a name for the whole collection of dogs of which we have impressions: Fido, Rover et al. But the word ‘dog’ only works by leaving out the individual details which separate Fido from Rover etc. ‘Dog’ thus expresses the common or ‘abstract’ idea of dogginess.
Newman recognised, however, that language thus conceived is always inadequate to our actual thinking. This is why poetry is normally more faithful in its representations than logic, metaphor than flat-footed proposition. (In thinking this Newman shared much with his contemporary Coleridge). The process of sorting out language ‘logically’ could never adequately reflect the mercurial character of our thoughts. Thus the idea of Christianity, expressed in its explicit verbal doctrines, lies at one remove from the living faith of the church. It is found in (say) the creeds. But this idea develops through history, sometimes faithfully according to the laws of genuine growth, at other times in a distorted and even self-threatening way. It is the job of the theologian to recognise the difference between the genuine and the corrupt ‘growths’ of the Christian idea as expressed in its doctrines, or what Newman calls ‘habitual judgements’, drawing attention to them and if possible correcting them.
As a patristic scholar Newman spent much time in studying the development, through passionate debate and argument from many sides, of the doctrines that were eventually formulated in, for example, the ‘Nicene’ creed; especially the doctrines of the Incarnation and of the Trinity. He points out that just at the time when (according to Protestant critics) the church fathers were encouraging a riot of superstitions about the veneration of saints and martyrs, they were actually engaged in the most energetic and disciplined use of theological reason to work out how exactly to express in propositions the relationship of the man Jesus to the Father he said he had been sent by. The result was this: ‘the only Son of God, eternally begotten of the Father, God from God, Light from Light, true God from true God, begotten not made, of one substance with the Father…’ For Newman these phrases are key components of the idea of Christianity, produced out of long, anguished controversy among various opposing experts. As Newman himself writes: ‘The Catholic faith was placed in a succession of perils, and rocked to and from like a vessel at sea. Large portions of Christendom were, one after another, in heresy or in schism…but these disorders were no interruption to the sustained and steady march of the sacred science from implicit belief to formal statement. The series of ecclesiastical decisions…alternate between the one and the other side of the theological dogma especially in question, as if fashioning it into shape by opposite strokes…That in the long course of centuries…the Church thus wrought out the one and only consistent theory which can be taken on the great doctrine in dispute, proves how clear, simple and exact her vision of that doctrine was’.
Given that the idea of Christianity developed as Newman describes it, we may now ask the corresponding question: what is the idea of international law? What are its key components? What is its ‘creed’? How do the various bits of it hang together in a single complex and comprehensive idea?
At first sight it might appear that international law is founded on a contradiction between the legal regulation of activity on the global level for the common good of all, on the one hand, and the regulation of competing national sovereignties, or state-interests on the other. For these fields of regulation may well be incompatible. In which case, what is to take the priority? Or must we say that in today’s ever more integrated global society, any true development in international law will be that which tends towards the limitation of national interests by the common good of humanity as a whole? This is a fundamental question for our own time. But be that as it may, I suggest that the following may be regarded as key components of the idea of international law (not listed in order of logical or legal priority, but simply as they occur to me):
If these principles are necessary (even if not sufficient) to delineate the idea of international law, we now have to consider what it would mean for this idea to develop into a body of laws which are free from internal contradiction. To do this it is necessary to examine further Newman’s criteria for making such a distinction. His tests are of two kinds. The first two are sine qua non. 1. The ‘essential idea or type..must continue under all its developments’; and 2. ‘a development, to be faithful, must retain both the doctrine and the principle with which it started’. (My italics) Applying these tests, however, is easier said than done, as Newman himself points out. He gives some illustrations of possible applications of the first test; for example Constantine’s introduction of Christian symbols into the Imperial Standard carried by Roman armies. Was this not a case of the ‘essential idea’ of the gospel being lost? In the case of the second test. Newman distinguishes ‘doctrine’ from ‘principle’, while insisting both must be retained throughout. ‘Principles are abstract and general, doctrines relate to facts; doctrines develop, and principles do not’. Thus principles are jeopardised, he says, when (for example) ‘certain lines of thought or conduct by which (a people) has grown great are abandoned’. Whereas incompatible doctrines may both be exemplifications of the same principle. For example, ‘Calvinists become Unitarians from the principle of private judgement’.
Newman’s other tests are indications, or evidences of true development. The power of assimilating new material while remaining a unity is the third test: ‘a power of development is a proof of life, not only in its essay but in its success; for a mere formula either does not expand or is shattered in expanding. A living idea becomes many, yet remains one’. The fourth test, of ‘early anticipation’, comes out of the fact that ‘early or recurring intimations of tendencies, which afterwards are fully realised, is a sort of evidence that those later and more systematic fulfilments are but in accordance with the original idea’. The fifth test, of ‘logical sequence’, comes out in the fact that, from an idea that grows in the common mind, is elicited, through external circumstances, a formal statement of the thoughts which have come into being in the depths of that mind. ‘Logic is brought in to arrange and inculcate what no science was employed in gaining’. Preservative addition (the sixth test) speaks for itself, but the last, that of ‘chronic continuance’, is more elusive. ‘While ideas live in men’s minds, they are ever enlarging into fuller development; they will not be stationary in their corruption any more than before it; and dissolution is that further state to which corruption tends. Corruption therefore cannot be of long standing; and thus duration is another test of a faithful development’.
To apply these various tests to each of the component principles of international law as I have sketched them, would be far too big and difficult task for me to attempt here. It is what must be done, however, if my initial thesis about the ‘development’ of international law has any validity. At this point all I can do is discuss briefly a few recent cases. I would like to consider examples of ‘humanitarian intervention’, the project of removing a criminal regime, and targeted assassinations of terrorist leaders. Do these constitute good reasons in law for the use of violence, or for invading particular states? Are any or all of these examples of genuine development of the ‘rule of law’?
1. ‘Humanitarian intervention’.
2001 saw the publication of the Report of the International Commission on Intervention and State Sovereignty, a group of eminent international experts set up in 2000, on the initiative of Lloyd Axworthy (former Canadian Foreign Affairs Minister), under the joint chairmanship Gareth Evans of Australia and Mohamed Sahnoun of Algeria, to consider the legitimacy of intervening in a state for humanitarian purposes. Its title is: The Responsibility to Protect. The Report was undertaken in the light of the Rwanda, Somalia, Bosnia and Kosovo tragedies. It makes a number of important points concerning the so-called ‘right of humanitarian intervention’.
If such a right exists, it would give legitimacy to coercive action, including military action against a state, for the purpose of protecting the people at risk in that state. The first point the report makes is that the phrase ‘humanitarian intervention’, though widely used, is unfortunate, since coercive intervention cannot itself be humanitarian. Furthermore, what needs emphasising today is not the right in international law for one state or group of states to intervene in another, for the sake of protecting its citizens, but rather the responsibility laid on the community of sovereign states to protect the citizens of any of their members who are at risk. Talking of responsibilities rather than rights marks a significant shift of emphasis. Of course, the tension between these two equal but opposite ‘doctrines’ (to use Newman’s language) lies at the heart of the uneasy settlement enshrined in the UN Charter, which simultaneously reaffirms the freedom of every sovereign state to pursue its own path, and asserts the co-responsibility of states for each other’s well-being. The Report’s opening point, however, is that a seismic shift is going on beneath the foundations of that settlement, and that the ‘responsibility to protect’ can, and should put a limit on the rights of states to deal with their own citizens just as they like. Of course, a ‘responsibility to protect’ was no part of the Westphalian settlement, with its emphasis on the sovereign independence of states. Yet it can be understood as a genuine development of this. For the sovereignty of the state rests, as I have said, on the principle of the fundamental rights of the individuals who live in it: and their freedom rests in turn upon a common fund of basic human rights which belong to everybody. If these rights are infringed, therefore, by those in charge of one sovereign state, there is a responsibility upon other, equally sovereign states (whose sovereignty is also based on the human rights of their citizens) to try to protect them. As the Report says, ‘what has been gradually emerging is a parallel transition from a culture of sovereign impunity to a culture of national and international accountability’. This is a case which fits well into Newman’s second and his sixth criteria for a genuine development. The Westphalian ‘doctrine’ and that of the current Report, though apparently contrary, are in truth both creatures of the same principle, as Newman suggests is often the case with a genuine development.
From this a further principle emerges. This is that ‘intervention for human protection purposes, including military intervention in extreme cases, is supportable when major harm to civilians is occurring or is imminently apprehended, and the state in question is unable or unwilling to end the harm, or is itself the perpetrator’. (Report #2.25) This thesis is backed up by references to a variety of legal sources, including ‘natural law principles’, the human rights provisions of the UN Charter, the Universal Declaration of Human Rights, the Genocide Convention, the Geneva Conventions and Additional Protocols, and the statute of the International Criminal Court. The Report explicitly claims to be developing a new legal concept from ‘our reading of state practice, Security Council precedent, established norms, emerging guiding principles, and evolving customary international law’. Its underlying point is that ‘the (UN) Charter’s strong bias against military intervention is not to be regarded as absolute when decisive action is required on human protection grounds’. (Report, #2.27) This thesis, it seems to me, is an illustration of the validity, in particular, of Newman’s fourth and fifth criteria for development. Meanwhile it does not contradict any of the others.
On the other hand, the Report uses familiar ‘just war’ criteria to distinguish justified from unjustified interventions: right authority, just cause, right intention, last resort, proportional means and reasonable prospects must all be present. (Report, 4.16) In doing this it is developing these criteria in order to apply them to a new scenario. Leaving aside for the moment the question of right authority, which is considered later, several points arising from the other criteria are worth mentioning. ‘Just cause’ is confined to two kinds of cases:
a) large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or
b) large-scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.
In this connection, the Report suggests several possible predicaments which do not merit military intervention. These include: human rights violations falling short of outright killing or ethnic cleansing (Report, 4.25); and denial, by a military takeover, of a population’s right to democracy (this presumably covers the case of Burma) (Report, 4.26). Both of these misdemeanours merit other forms of pressure from outside, but not military intervention. Other cases are best dealt with under Article 51 of the UN Charter, and/or Chapter VII of the same Charter. (Report, 4.27)
The Report makes a significant point about ‘right intention’ when it says that ‘overthrow of regimes is not, as such, a legitimate objective, although disabling that regime’s capacity to harm its own people may be essential to discharging the mandate of protection’.(Report, 4.33) This is obviously relevant to the question of toppling Saddam, an action that came too late for the Report to discuss. On ‘last resort’ the Report makes the traditional point that ‘this does not necessarily mean that every such option must literally have been tried and failed; often there will simply not be the time for that process to work itself out. But it does mean that there must be reasonable grounds for believing that, in all the circumstances, if the measure had been attempted it would not have succeeded’. (Report, 4.37) And finally, ‘all the rules of international humanitarian law should be strictly observed’. (Report, 4.40) This is perhaps a new development from the ordinary discipline of inter-state warfare, since it recognises that where the objective of military action is humanitarian assistance, and not victory in battle, the observation of humanitarian law becomes a logical, not merely an ethical, necessity.
We are now left with the question of authority. The Report’s emphasis is upon the duty of the UN Security Council to validate any intervention. But it can do so only in exceptional circumstances, because non-intervention in the internal affairs of states is a bedrock principle of the Charter (Articles 2.4 and 2.7). True, articles 24, 39, 41 and (especially) 42 of the Charter provide some room for authorising international intervention to maintain peace and security; and in addition, the procedure used in 1950 against Korea, of getting the UN General Assembly to pass a ‘Uniting for Peace’ resolution, could be used again. Yet none of these provisions is designed for the ‘humanitarian’ case. The need, then, is ‘not to find alternatives to the Security Council…but to make (it) ..work much better than it has’.  The Report suggests this may be happening already, for since the end of the cold war ‘it is arguable that what the Security Council has really been doing..is giving credence to..the emerging guiding principle of the “responsibility to protect”, a principle grounded in a miscellany of legal foundations..growing state practice and the Security Council’s own practice. It may eventually be that a new rule of customary international law…comes to be recognised’. (#6.17) If this happened, it would certainly constitute a major example of genuine development. But it hasn’t happened yet. Meanwhile, a useful preliminary step, where their own national interests are not at stake, would be to get prior agreement among the Permanent Five to refrain from the veto if a majority of the Council members were agreed on a course of action to meet humanitarian needs. Such a proposal could provide UN authority for humanitarian intervention without in any way breaching the Charter. This would, it seems to me, constitute a genuine example of a development of the UN’s basic principles to cover a situation for which the original Charter was not designed. Meanwhile, however, there is always the possibility, as the Rwanda tragedy shows, that the Security Council will again fail to discharge its responsibility to protect the citizens of a state who are at grave risk, in ‘a conscience-shocking situation crying out for action’. (Report #6.37) As the Report says, it is unrealistic then to expect concerned states not to use their own powers independently of any UN authorisation. Yet they may well do so without the right commitment to ‘the necessary precautionary principles’. (Report #6.39) Perhaps the best that can then be hoped for is to point out the damage that such unauthorised action would do to the hopes that the world has put in the principle of collective responsibility.
There are, then, plenty of opportunities for the genuine development of ‘just war’ criteria, and especially of ways of giving real authority for ‘humanitarian intervention’, without abandoning the principles of international law that have already become well-established. In practice this would mean that the ban on the crime of aggression would remain firmly in place, while at the same time allowing for necessary actions which would not count as aggression. Given that for the foreseeable future the likeliest uses of military force are for purposes of this kind, rather than for waging war, such a development would be of the utmost importance.
2. Regime Change
Waging a war in order to topple a regime, however, is a different matter. Could such a war be justified as a development of the traditional jus ad bellum criteria? Whereas ‘humanitarian intervention’ does not flatly contradict the fundamental UN principle of sovereign immunity, but rather side-steps it, regime change by war seems to be a clear case of confronting head-on the principle of national self-determination. Nevertheless, a case in favour of such a development has been made in a recent Fabian Society pamphlet by Clive Soley and Ann Clwyd.
‘How do we deal with psychopathic killers who take over a nation-state, brutalise the people and destabilise the region?’ This is the question to which a war to change a regime, as in Iraq, seems to be the answer. Surely, Soley and Clwyd argue, a UN legal regime that was never designed to cope with this question must not stand in the way of answering it in the only way we have at our disposal, especially when we see in Rwanda the consequences of not doing so. True, the consequences of military action can never be wholly foreseen. But sometimes we have to act simply because it is the right thing to do, hoping that the end result is better than any alternative. If Kosovo was legal, why not Iraq? Soley and Clwyd believe the moral case for toppling the likes of Saddam was overwhelming. Any decent policy would seek to permit it. So the question is whether such action can be squared with the ‘rule of law’.
Soley and Clwyd claim that with a US President who was committed to dealing with despotic regimes through UN-approved channels ‘it is not difficult to see the outlines of an interventionist policy that could work’. Targeted sanctions could have been followed by indicting the major criminals. ‘If key leadership groups in collapsing states were indicted following warnings and investigations by the UN then it would, over time, have a deterrent effect and build up a body of law’. Permitting Iraq to sell oil on condition that a percentage of its earnings would go into a UN account to be released as and when democratic reforms took place could also have been helpful. At the same time, the UN could have stepped up the pressure on Iraq by extending the no-fly zone to the whole of Iraq. More drastically, destruction of key Iraqi military establishments or units such as the Republican Guards, could have been undertaken. Intervention by regional powers, authorised by the UN, is also discussed by Soley and Clwyd. Through this ‘we might get the outlines of a world policing approach..increasingly neighbouring states can develop the political and military structures necessary for a successful intervention’. UN inspectors, not just for weapons of mass destruction but for human rights violations, would also have been helpful, as Soley and Clwyd and Helena Kennedy suggest. However, if, as was likely, the regime still refused to co-operate with the UN then tougher action would have had to be considered. If this had to be done, so be it: for the world needs to ‘take the next step forward and give human rights a higher priority than the nation-states’. Is this idea simply an extension of the conclusion arrived at in the case of ‘humanitarian intervention’? Or is it a further, illicit step beyond that?
Soley and Clwyd show that there are serious arguments in circulation permitting intervention for regime change. True, they admit that at present these ideas are unrealistic. But do they represent a genuine development of international law, or are they corruptions of it? Before answering this question, it has first of all to be admitted that claiming Saddam possessed weapons of mass destruction, ready for use against the West, was a blunder which distracted the interveners from presenting their real case. It is probable that more people would have accepted that getting rid of Saddam was a legitimate thing to do if they had not been distracted by this mistake. Yet the mistake was politically necessary, for without it Blair could not have got his plan through the House of Commons. This was because the rule of law, rooted in ‘just war’ principles, dictated that the war had to be waged for self-defence, and not simply to remove a dictator. This was the burden of the UN Charter’s permission for going to war.
This means that the war that was actually fought could genuinely be justified only if the world had already gone beyond the UN Charter; that is had transformed itself from being a society of self-determining states, each one jealously guarding its own sovereignty, to being a single society of nations responsible for each others’ common good. Have things gone as far as this? Surely not. It seems obvious that Bush does not think so, although perhaps Tony Blair does. Yet in every other department of public affairs, for example on EU enlargement and its implications, he still thinks in terms of the post-1945 settlement, which reinstated the concept of states as sovereign within their own domains. Yet the fact of global terrorism is pushing everyone beyond that, as Blair admitted in his Sedgefield speech: terrorism ‘is to the world’s security what globalisation is to the world’s economy’.
The fundamental difficulty of the Iraq war was that the action was generally recognised by the majority of experts (though not by all) to be legally flawed. The key UN resolution 1441 did not contain the key UN code words for military action, namely permitting ‘all necessary means’. And to get those key words into a further resolution would have been impossible against the opposition of states like Syria. The result was that Blair had to scratch around for some legal authority who, against the majority view, would give ‘cover’ for the proposed action, by maintaining that the existing resolutions were good enough on their own. ‘Scraping the barrel’ in this way suggests that what was being done was not a genuine development of the existing law, but a corruption of it. It is of course true that ‘developments’ have to be discerned, precisely because they are not explicit. But was the idea of military invasion discernibly implicit in the earlier resolutions, or was it absent from them for good reasons? True, resolution 678 sanctioned the use of force to remove Iraq from Kuwait; but to use this to justify another attack, of quite a different kind for another very different purpose, is hardly drawing out what was implicit in the earlier text. This was certainly what led the Foreign Office to try to prevent the Prime Minister from taking military action, with one of their senior legal experts (Elizabeth Wilmshurst) resigning in protest.
A further argument against the Iraq war’s legality (though not necessarily against all wars waged for regime change) is that it was disproportionate: Saddam’s failures and evasions of UN obligations required some response, but not that of invasion, with all the Iraqi suffering and death which were its inevitable consequence. Saddam’s removal was in itself a good thing: but not at the price of full-scale war when a number of less disproportionate alternative methods of containing his excesses were available, and in some cases were actually being employed.
It seems clear that the action to remove Saddam, however desirable in itself, did not conform to Newman’s criteria for a genuine development of the law. In particular, the ‘essential idea’ (to use Newman’s words) behind the UN Charter, namely that it is for the UN collectively, and not individual members of it, to enforce the UN’s own resolutions, was abandoned in this case. This failure was ‘tantamount to the corruption of the system’. Yet even the corruption of a tradition can point in the right direction, even though in itself it is unacceptable. Kosovo set an important precedent, because most people thought it right to intervene even without the UN authorisation. Challenging a tradition may make people think beyond it. The UN settlement, based as it is on the sovereignty of each state, is itself not eternally sacrosanct. It is possible, even necessary to go beyond it. This could be the real meaning of Blair’s demand at Sedgefield for international law to be changed, i.e. developed further. In that larger context, the Iraq war may be open to interpretation as a harbinger of things to come, even though in itself it was unjustified. But for this to happen, those concerned, especially those who advocated the military invasion, must think big about a whole host of other problems about which they do not seem enthusiastic, such as a legal basis for expansion of the European Union and its security arrangements (e.g. the proposed ‘Constitution’ and even a military command structure), and the idea of collective responsibility for world order, not unilateral action by the sole superpower.
The killings of Sheikhs Yassin and Rantissi have been widely condemned as illegal. Tony Blair and Jack Straw have both said as much in the case of Yassin, as have the UN Secretary-General (Kofi Annan), the EU’s foreign policy and security chief (Javier Solana) and a spokesperson for the government of France. The Foreign Ministers of the EU issued a statement after the Madrid bombing, which, while re-affirming Israel’s right under international law to protect its citizens from terrorist attack, went on to insist that ‘not only are extra-judicial killings contrary to international law, they undermine the concept of the rule of law, which is a key element in the fight against terrorism’. On the other hand the Bush administration appears to disagree. Condoleezza Rice has protested that Hamas is a terrorist organisation and that Yassin was involved in planning attacks. She is presumably suggesting this makes the assassination legal. The White House seems to agree with her, by vetoing a condemnatory UN resolution on the subject because it did not simultaneously condemn Hamas. But the State Department admits that ‘the United States is deeply troubled’ by the actions.
Assassination of individuals is rapidly becoming an important topic for the further ‘development’ of international law. It requires delicate handling, in view of difficult historical examples, such as the attempt to assassinate Hitler, in which Dietrich Bonhoeffer was involved. Few of us would wish to condemn that attempt simply because it was illegal. But was it illegal at all? A valuable discussion of a possible parallel case is to be found in Just Assassination, an article by Sir Hugh Beach and David Fisher. This concentrates on the possibility of assassinating Osama bin Laden during the Afghanistan war. (It takes no account of projected assassinations of Saddam Hussein, during or after the Iraq war, or of recent Israeli assassinations of Palestinian leaders).
Beach and Fisher quote Marcel Berlins to the effect that there can be no such thing, legally, as a war between a sovereign state and a group of terrorists, and they quote Bill Hopkinson in support: ‘proclamation of a general war on terrorism is a political metaphor’. Yet Berlins goes on to say that September 11th 2001 makes existing law out of date, and we cannot blame the US for ‘in effect, creating its own legal framework and definitions’. But Beach and Fisher disagree. Customary international law is not superseded, they insist, and the US has to accept it. Any state has the right to self-defence against terrorist attack, if necessary by forestalling the attack, and known terrorist attackers are therefore legitimate targets. But does this justify assassination of individuals? Earlier decisions suggest not. President Ford forbade the assassination of Fidel Castro, and President Reagan in 1981 followed by a blanket repudiation of assassination. In 1998 Tony Blair forbade the assassination of the Omagh bombers. President Clinton refused to allow assassinations after the 1988 embassy bombings, insisting that the aim was ‘to bring terrorists to justice for their crimes’. And most leaders have condemned the assassination of Sheikh Yassin as illegal because ‘extra-judicial’, and contrary to the rule of law. True, President Bush has been encouraged by some of his supporters to abandon these precedents wherever capture of perpetrators seems impossible. But, as Lord Howe has said, it is essential to be certain that the evidence of guilt is robust. This point is important both for political reasons, because of the high cost of mistakes, and for ethical ones.
Bringing the criminals to justice is however extremely difficult. Could the Security Council have set up a Rwanda-style tribunal to try Osama bin Laden if he had been caught during the Afghan war? Marcel Berlins thinks it unlikely that the US would have wanted this, because of its distrust of foreign judges. He also thinks that even if bin Laden had been captured, the idea of a trial in a domestic court was far-fetched. His conclusion was bleak: ‘I do not see bin Laden being allowed to stay alive to face a trial’. If this pessimistic assessment is correct, the consequence seems inevitable: bin Laden would have had to be assassinated in cold blood if he were captured. This seems to me a perverse legal and ethical conclusion. Indeed such killing would hardly have counted as assassination: it would have been ordinary murder.
The only alternative would have been that Osama bin Laden was a ‘legitimate target’ in the war in Afghanistan, because he was a ‘combatant’. Beach seems to think that this would have been possible under Article 43 of the 1977 Additional Protocol I to the Geneva Conventions, defining the armed forces to a conflict. But one implication of this is that, had he been caught, he would have had to be treated as a prisoner of war, with all the protections set out in Geneva Protocol III. As long as the war lasted these protections would have remained available to him, even if he were convicted of crimes committed before he was captured. A legal question would then arise: what would count as the end of the war? After all, the war in Afghanistan and in South Waziristan is still going on today (April 2004) and shows no sign of coming to a conclusion. Does this mean that a prisoner of war can be held indefinitely, on something like the basis under which prisoners at Guantanamo Bay are held? But the latter are certainly not prisoners of war, and are not being given any of the protections under Geneva Protocol III. If bin Laden, as the chief instigator of Al Qaeda attacks, were somehow counted as a prisoner of war, with full Protocol III protections, while his alleged subordinates were held without them, would this not be legally (and ethically) perverse? Anyhow it is an assumption of the Protocol that after the ‘cessation of active hostilities’ prisoners of war are released and repatriated, unless criminal proceedings against them are pending. In that case, upon conviction they can be held until the completion of their punishment (which could, I suppose, be a life sentence). But this possibility depends on the very thing that Marcel Berlins thought ‘far-fetched’; namely a fair trial (and a conviction).
Of course, Michael Berlins might be wrong: bin Laden could be captured alive and fairly tried. Just as it is hoped that Saddam can eventually be brought to trial in Iraq, meanwhile having been held as a combatant, with full Protocol III protections, so too bin Laden might be tried, presumably in Saudi Arabia, on a similar basis. This would be much the most satisfactory outcome, especially as it would avoid the awkward legal problem of how to deal with a prisoner of war, when it is impossible to say what is to count as the end of a conflict which is itself of dubious legal status and very uncertain outcome.
The assassination of Sheikh Yassin, however, presents a different legal case. If legally-speaking he was a combatant in an armed conflict, he would have been a legitimate target. But was he? Most political leaders think not, calling it an ‘extra-judicial killing’. The fact that he was a helpless paraplegic in a wheelchair exacerbates the problem, but is not at the heart of the legal dilemma. The issue is whether Hamas is in any sense the armed force of a Party to a conflict, as Additional Protocol I Art. 43 stipulates. The relation of Hamas to the Palestinian cause is not on a par with the relation of Al Qaeda to the Taliban. For it was plausible to suggest that Al Qaeda certainly was part of the armed forces of Taliban-run Afghanistan, and that Afghanistan was a state-party to an armed conflict. Not so Hamas, or the Palestinians. Furthermore, the ‘last resort’ principle of just war ethics would not allow the assassination of a terrorist unless this were the only way of preventing his undertaking further violent acts. But Yassin was not himself capable of undertaking violent acts. Whether his instigations were necessary for Hamas terrorists to undertake such acts, so that his removal was necessary to prevent any recurrence of violence on their part, is very doubtful. They hardly need extra motivations, let alone orders. And in any case, the assassination is likely to increase rather than reduce the number of such attacks. It cannot weaken Hamas’s will ‘so as to discourage and prevent further violence’. Nor is the proportionality criterion applicable. We cannot reasonably expect more good than harm to come out of the assassination, taking into account the probability of ‘success’ (whatever ‘success’ means in the prolonged and shapeless conflict between Palestinians and the Israeli regime). Even if, in theory, there could be such a thing as a just assassination as part of a conflict, the political consensus seems to be right: in the Yassin case the assassination cannot be considered just. The State Department is right to be ‘troubled’ by it. It was, to put it bluntly, a murder.
To conclude: it makes no sense to talk about waging a war on terrorism. Unlike sovereign states, terrorist gangs are by their very definition not personalities writ large; they do not command armed forces in such a way that they can send them into battle or withdraw them at will. There can be no such result as ‘winning’ or ‘losing’; we can not chalk up a success in imposing our will on so amorphous, undefinable a group. A terrorist ‘movement’ can no more wage a war than it can enact and enforce laws on its own members.
It follows that there is and can be no such activity as waging war on terrorism. The phrase ‘war on terrorism’ is nothing more than a hyperbolic means of ratcheting up morale in order to ensure enthusiasm for whatever is being proposed. The only way to describe what is really required involves treating terrorists as international criminals. And in doing this we have to turn ourselves from soldiers into policemen.
If dealing with terrorism is fundamentally a matter of catching and convicting criminals, then preventative activity is wholly in order. It is a key job of police to prevent crime, by arresting suspects before they can commit their crimes. This is a quite different issue from engaging in pre-emptive war, let along preventative war.
Viewed historically, the ‘essential idea’ of the international laws of war has been steadily to restrict what may be done in war. The proliferation of ‘just war’ criteria since the time of Aquinas, and the institution of agencies such as the UN itself, the ICRC, and the rest is evidence of this; but even more is the steady growth of the list of forbidden weapons, strategies and tactics. Terrorism, in this picture, is simply the reductio ad absurdum of war. If I am right, the ultimate transformation of war into police activity against international criminals, is the dream-fulfilment of this process.
Now, as Newman pointed out, the ‘essential idea’ of a system ‘must continue under all its developments’, retaining both its doctrine and its principles. If I am right, then, ‘humanitarian intervention’ is, or in suitable circumstances can be, a constructive development of the essential idea of restricting warfare within ever tighter limits. For such intervention is not an expansion of the activity of war into a new sphere, but rather a restriction of it. For it forbids war when it is waged in such a way as to threaten the lives and well-being of whole populations. It aims to transform the situation in such a way that the war itself comes to an end. On the other hand, war to topple an appalling regime is surely an expansion of the concept of ‘just cause’ just at the moment when the just causes of war are being steadily restricted by law. War for regime change is, in principle and as such, a corruption of the tradition, even though there will often be temporary rejoicing when it works. And finally, assassination, always cousin to downright murder, certainly marks a reversion to a less developed stage in the tradition, and as such is unacceptable.
 This paper was written before the appearance of Philippe Sands’s book Lawless World (Allen Lane, London, 2005) which contains much material for further reflection on my theme.
 Guardian, 17.03.03
 The Guardian, 24.02.05
 The Independent, 24.03.05
 Guardian, 15.10.03
 BBC World at One, 05.03.04
 Guardian , 20.11.03. ‘Law stood in the way of doing the right thing’, Perle said.
 BBC News, World Edition, 16.09.04. However, some authorities hold that the existence or not of a Security Council resolution specifically authorising the use of force does not immediately settle the question of legality. See Adam Roberts, International Law and the Use of Military Force: The United Nations, the United States and Iraq (A Europaeum lecture, 06.06.03). Still less does it settle the wisdom or justice of any decision.
 The Times, 22.10.03
 Observer, 07.03.04. Adam Roberts has pointed out to me, in a comment on a draft of this paper, that ‘the International Criminal Court (as it stands at present) cannot tackle jus ad bellum issues’.
 J. H. Newman, An Essay on the Development of Christian Doctrine (1845). This book is one of the most influential theological works of the nineteenth century, as its modern editor J.M. Cameron (in the Pelican Classics series, 1974) has pointed out: ‘There are certain works in the history of theology of which we can say that after their appearance nothing was ever again quite the same…The Essay on Development is a work of this order’. (Editor’s Introduction, p. 7) It is no accident that Newman’s work appeared at a time when notions of evolutionary biology were in the air, even though Darwin’s major work had not yet seen the light of day.
9 Only on some such basis can ‘custom’, which is the developed consensus among states concerning the state of the law on some particular issue, be a source of international law binding on all. As Roberts and Guelff point out, ‘the present laws of war emerged as customary principles and rules from the practice of states’. Adam Roberts and Richard Guelff, Documents on the Laws of War (Oxford University Press, Third edition 2002) p.7. As one obvious example they cite how, by 1939, the 1907 Hague Convention IV, on land warfare, had become regarded as ‘declaratory of the laws and customs of war’, as the Nuremberg and Tokyo tribunals of 1946 and 1948 acknowledged. As such it was binding on all states. (Op. Cit. p. 8)
10 Newman sees the most ready analogy to the development of an idea in the physical growth of an animal from its ‘rudiments’ to its ‘developed form’. Essay, p. 117.
 see John Robinson’s classic essay on The Body: A Study in Pauline Theology (SCM Press, London, 1952)
 Essay pp. 97-99. The same point was made, indeed taken for granted, in remarks made by Sir Christopher Meyer, the UK’s former ambassador to Washington, on the BBC’s Today programme for 6th March 2004, in a discussion of the legality of the Iraq war.
 The same point will remain even if the British government changes the rules by substituting house arrest for imprisonment in gaol.
 Michael Walzer, Just and Unjust Wars Part 4: Law and Order in International Society (London, Allen Lane, 1978) pp. 51ff. A further point has been made by Clifford Longley. He points out that ‘all members of the UN are supposed to be signed up to the Universal Declaration of Human Rights. It would be a small extension of that to make due application of the principles of human rights to its citizens, as well as to foreigners within its jurisdiction, a condition of membership, or at least a condition of accessing the privileges of membership such as the protections contained in the UN Charter. This would become the basis for a binding social contract between each nation state and the international community. And so a sustained and fundamental breach of this contract of covenant would ipso facto provide “just cause” under the jus ad bellum part of just war theory’. (The Tablet, 12 July 2003 p. 2).
 ‘It may well be that under international law as presently constituted, a regime can systematically brutalise and oppress its people and there is nothing anyone can do…unless it comes within the definition of a humanitarian catastrophe. This may be the law, but should it be?’ (Speech by Tony Blair, 5th March 2004).
 A somewhat parallel question arises over the legality of the Blair government’s proposals for asylum-seekers. These would make ‘judicial review’ of government decisions unavailable to such persons. Now judicial review was invented by the judiciary, in the 1970s, precisely to test the legality of government decisions. In their reviews, the judges were to employ principles such as ‘natural justice’ and the ‘rule of law’, as well as the existing ‘black letter’ laws, to do this work. But the question then arises: was the emergence of judicial review, as a check on government, a true development of the law? or a corruption of it? Does it give the judges too much power? Or is Parliament arrogating to itself dictatorial powers which need to be held in check by an independent judiciary? These are live issues at the present time in the UK, as the tensions between the government and the Lord Chief Justice show. (see as Martin Kettle in The Guardian, 9th March 2004, and Roy Hattersley in The Observer, 14th March 2004)
 I quote from the edition of the Essay on the Development of Christian Doctrine mentioned in note 8 above.
 Under the influence (of which he was always dubious) of the degenerate empiricist theory of logic which he had to imbibe from the textbooks of his youth, Newman always thought of logic as the regulation of thinking ‘put into grooves’. He recognised that this conception of logic made it hard to analyse the actual process of thinking things through, but never quite managed to see that his old textbooks reflected an incoherent concept of logic itself. See Brian Wicker, Newman and Logic in Newman Studien, Folge 5 (1962) pp. 251-67.
 Essay p. 444
 Newman discusses each of these tests in more detail in the Essay pp. 123-147.
 Report, p. 49
 This is a suggestion from Scilla Elworthy, of the Oxford Research Group, mentioned by Helena Kennedy in her book Just Law (London, Chatto and Windus, 2004) p. 65
 ‘Before September 11th I was already reaching for a different philosophy in international relations from a traditional one that has held sway since the treaty of Westphalia…I called for a doctrine of international community, where in certain clear circumstances we do intervene, even though we are not directly threatened’. (Tony Blair, speech at Sedgefield, 5th March 2004)
 For a different view see Adam Roberts, International Law and the Use of Force: the United Nations, the United States and Iraq, Europaeum lecture, Leiden, 6 June 2003 (available as a pamphlet)
 Michael Quinlan, Iraq: the indictment, in The Tablet, 13th March 2004, pp. 8-10
 see above, p. 3.
 Suzanne Goldberg, The Guardian, 23.03.04
 Beach and Fisher, p. 2 and 4
 see also Walzer, p. 203
 IHT 2001, quoted in Beach and Fisher, p. 7
 Beach and Fisher, p. 9
 ‘The armed forces of a Party to a conflict consist of all organised armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognised by an adverse Party’. I am indebted to Sir Hugh Beach for some important comments on the issues raised in this section.
 1977 Geneva Protocol I, Art. 44
 1949 Geneva Protocol III, Art 85
 Article 119
 Bush and Blair said the same thing about the subsequent assassination of Rantissi. (The Guardian, 15 April 2004)
 Beach and Fisher, p. 11
 Beach and Fisher, p. 11
 cf. Shirley Williams: ‘Treating the attacks as crimes rather than acts of war mobilizes all those who believe in justice, human rights and the rule of law on the same side. Treating them as acts of war divides one nation from another, compelling them to takes sides on the basis of national interest'.’ God and Caesar: Personal Reflections on Politics and Religion (Continuum, London and New York, 2003) p. 115.