Determining the legality of war

Determining the legality of war

All is fair in love and war—isn’t that the saying? Unfortunately for John Lyly, who first published this sentiment in 1579, but fortunately for the rest of us, this does not hold true today. Even war has rules thanks to the new world order founded after the end of the second world war. While most are aware of the rules in war and what actions constitute war crimes—attacking civilians, mistreating detainees, torture—simply starting a war can be considered illegal. Bandied about for the wars in Iraq, Afghanistan, the Falklands and now in Syria and Yemen, the legality of war boils down to whether five countries agree it’s okay.

Most of the world uses Just War Theory to determine the legality of a war. In just war theory, we can distinguish between jus ad bellum (right to war) and jus in bello (right in war). The first concerns itself with the justifications for going to war, and the second with proper conduct when in war. There is a third requirement: what happens when the war ends. Together, these can be seen as the law of war. Over time, there have been a number of sources for law of war, most famously, the Geneva Conventions.

One of the biggest concepts in international politics is sovereignty: what happens within a country’s borders is its own concern, and other states can’t violate this sovereignty. Therefore, it’s crucial an aggressor must be a legal state to start a legal war.

Currently, in international law, there are two main reasons when going to war is seen as legal and thus acceptable to the international community. The first is self-defence and the second is if the UN Security Council permits it. Since the 1990s, there is also the concept of Responsibility to Protect, which means the international community should intervene in gross human rights violations, even if those are happening within a country and intervention violates the sovereignty of that country. Responsibility to Protect is not something a state can unilaterally invoke—it has to go through the United Nations.

Any act of war that is started without Security Council clearance and is not committed in self-defence is illegal under international law. There are a number of prerequisites before a declaration of war can be made though: the aggressor must declare war on everyone involved; the goal must be to create a better, more peaceful world (countering terrorism or genocide rather than gaining land or resources); the aggressor must have a good chance of winning the war; only a proportional amount of violence can be used (indiscriminately bombing everything is illegal—violence must limited to what is absolutely needed to win); and war can only be declared once all non-violent options including diplomacy have been exhausted. These are the conditions of jus ad bellum.

The United Nations can be considered the governing power with the responsibility and authority to impose penalties for violations of law: countries enter into contract with each other and agree on the penalties for breaches of those contracts. Penalties are usually economic sanctions—Russia was hit with sanctions after its annexation of Crimea—and there are also options to bring lawsuits against sovereigns for violations of their international law commitments in either an international arbitration forum or a domestic court. A judgement against a sovereign state can be used to freeze that country’s assets (meaning both those of the government and the citizens) in countries with financial institutions that have access to those assets. For example, a judgement against Saudi Arabia for their role in the 9/11 terror attacks in the US could be used to freeze the amount of the judgement in the reach of US, UK and European financial institutions. Frustratingly, following the Nuremberg trials after WWII, determining right to war fell into the hands of the United Nation’s Security Council—meaning the hands of the five permanent members and victors of WWII. Far from maintaining international peace and security, the Security Council’s members tend to act in their best interest: when national interests are threatened—as with the United States and the United Kingdom in the Iraqi wars—the core members tend to disregard the rules of jus ad bellum. In 2014, Russia seized Crimea from Ukraine—no clearance and no legitimate reason to do so. In 2017, the United States launched attacks on the Syrian military in retaliation for chemical weapons attacks. China is engaging in intimidating its neighbours into passivity while it claims portions of the South China Sea. France and the United Kingdom, the only two members not currently directly implicated in any illegal use of force, have had little to say about any of this and both cheered the strikes in Syria.

Today, war is seen as a means of defending lives, liberty and territory—all critical constructs in determining the legality of heading to war. If this is to remain so, the Security Council needs to up its game. The second world war became a war of ideas, in which the victors made it clear they were fighting for the principle that ‘all the nations of the world… must come to the abandonment of the use of force.’ United Nations was created in a bid to keep the peace and outlaw war: ‘All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the United Nations’. States retained the right to defend themselves from armed attack, and only the Security Council could authorise force to keep the peace. War between nations has, by the definitions of jus ad bellum, practically disappeared—before 1928, the average state could expect to be conquered about once every human lifetime, while now, it will be subject to conquest roughly once or twice in a millennium.

However, within this tight legal framework, we’re seeing the rise of proxy wars and civil wars generating threats that spill outside their borders. Look at Iraq, Syria, Yemen and Sudan. Look at the rise of terrorist organisations. Look at the members of the Security Council undermining the system they created—and to which they hold the rest of the world—when it suits them.

The war in Yemen is a tricky example. Technically, Saudi Arabia was invited by the Yemeni government. With Yemen experiencing civil war and a President who fled the capital, Saudi Arabia is helping the current legitimately and democratically elected government of Yemen fight the rebel forces. By international standards, this war isn’t illegal.

The question is whether US participation is legal. Although the US was invited—and by international law is not fighting an illegal war—by domestic law, it finds itself in a grey area. The US President is required to seek Congressional approval before committing the military to combat. Neither President Obama nor Trump received approval and yet the US finds itself involved. In both Afghanistan and Iraq, President Bush had congressional approval; but when President Clinton sent forces to Kosovo, he flouted domestic law as Congress had not okayed the move.

The war in Yemen is undoubtedly a proxy war, with members of the Security Council taking a stake to ensure their own best interests—namely, the continued supply of Saudi oil. War should by international law be a last resort, and used only as a means of maintaining international order and peace (hence why the US entered Kuwait in 1991 to evict Iraq). This system can only work when all agree (as they do with the United Nations) and the principle defenders uphold their commitments and duties. After all, international humanitarian law applies to those at the top too.