Posted 2:10 PM by Robert

Wrong Side of History II

Fred Hiatt at the Washington Post points out that there is something wrong with international law's 17th Century obsession with "sovereignty" while essentially ignoring the focus of law of the 18th, 19th, 20th and 21st Centuries on individual rights:

[Y]ou have to wonder whether ... there isn't something peculiar, something out of whack, about international law itself. Yes, national borders should be respected. But why should a gangster who has maintained power only by violating every norm of morality and law -- including international law -- be permitted the sanctuary of those borders? Why should his regime be entitled to the same protection as a government that represents its people?

No one, not even the most dovish of the doves, maintains that Saddam Hussein is the legitimate representative of the Iraqi people. He rules by means of a brutal secret police using murder (of thousands and thousands of innocent people over the years) as its tool. The British government last week issued a brief report on Saddam Hussein's crimes that listed some of his favored methods of torture, in addition to the usual beatings and fingernail extractions: eye gouging, piercing of hands with electric drill, suspension from the ceiling, electric shock, sexual abuse, mock executions, acid baths. Wives are raped to extract confessions from husbands, while children are made to watch. Prisoners "are kept in rows of rectangular steel boxes, as found in mortuaries, until they either confess to their crimes or die."

...

The opponents of war often claim to be speaking for the Iraqi people. In any dictatorship, it is impossible to gauge how the people feel, particularly in one as brutal as Iraq. Two years ago the Revolutionary Command Council added "amputation of the tongue" as an approved punishment for anyone who speaks ill of Saddam Hussein or his family.

Still, there are clues. About one in seven Iraqis has left the nation rather than live under his regime, as the British report pointed out.

And last week, the nonprofit International Crisis Group (ICG), which conducts research in troubled regions in an effort to encourage wise policy, issued, to little notice, a compelling report entitled "Voices From the Iraqi Street." The ICG researcher, interviewing ordinary Iraqis for the sixth time in recent years, found them more open than ever before. This in itself might be seen as an initial success of Bush's policy; the ICG attributed it to "the feelings shared by many Iraqis that some kind of political change is now unavoidable."

More remarkable, the interviewer found an "overwhelming sentiment . . . of frustration and impatience with the status quo." People want change, are willing to say so and, "if such a change required an American-led attack, they would support it."

As I have pointed out in many prior posts, there is no way for any government to claim legitimacy other than through sufficiently democratic and open elections. That does not mean that the form of the constitution meet any particular, rigid format. While the first and most important protector of democracy and human rights is open elections, their protection depends also on protecting them from the still substantial threats of mobocracy.

But a government which is not democratically elected is illegitimate - and this, in my opinion, should be reflected in international law as depriving the illegitimate state of the right to argue under international law that other states are prohibited from invasion and military action by the sovereignty rights of a legitimate state. Such an illegitimate state would have to rely, instead, on other principles - such as arguing that the particular invasion would cause more harm to the populace than the persistence of the illegitimate government causes. Iraq probably could not make effective use of such other principles, but, for example, Saudi Arabia at least arguably could.

It is absurd that "opponents of war often claim to be speaking for the Iraqi people," thereby acknowledging that the democratic will of those people is of paramount importance in determining whether war may be waged against Iraq, a principle which is nowhere included in international law. Instead of looking for clues as to the popular will of the Iraqi people in opinion polls and emmigration statistics, international law should expressly shift the burden of demonstrating compliance with that popular will directly onto the government purporting to act in the name of the Iraqi people.

Perhaps some other reform of international law would be more appropriate than the one sketched above. But the current principles of international law are nothing short of a disgrace that only a cynical and self important diplomat or legal academic could love.