Thursday, 6 April 2017

The NZSAS shouldn't be tried under international law because it doesn't exist

It’s worth pausing on Nicky Hager and Jon Stephenson’s charge that the NZSAS should be investigated for possible war crimes under international law. As the authors recently stated in an interview:

“This is the time to face up to wrongdoing. In fact, international law requires countries to investigate their own breaches, including potential war crimes. The government and military have failed to do this… 
“We asked human rights lawyer and former chief human rights commissioner Margaret Bedggood to read the book before it was published and her response is printed on the back cover. She says the alleged actions and decisions described in the book, ‘if confirmed, would seriously breach international human rights and humanitarian law and could amount to war crimes,’” they say.

OK. Repeat after me – there is no international law.

As William Slomanson wrote in Fundamental Perspectives on International Law, states are not obliged to abide by international law unless it has expressly consented to a particular course of action. This is an issue of state sovereignty, and even in a "borderless world" it'll take some time before national sovereignty can be fully eroded.

The real issue is there are no international statutes and no international enforcement agencies other than the UN, which enforces nothing unless the US military says it can. The UN cannot make law. International law has norms, and to the extent two sovereign nations in a dispute agree to appear before an international court and have their dispute resolved does not imply they are obligated to do so, or that failure to do so would be illegal.

And it can't be illegal because there isn't any international law that would make it so. Just because the UN passes a resolution, does not mean it has the force of any national law, and governments are free to ignore it. It isn't illegal to ignore it because things can only be illegal if a law prohibits them, and there is no international body in existence with the power to make international law.

UN resolutions aren't worth the paper they are printed on, including human rights treaties. They are all worth nothing. Do people really think the New Zealand government or the US government care about some dumb UN resolution? Does any nation?

Sovereign states care about their own laws. A government is concerned about human rights treaties to the extent some subsection of its own code describes how its soldiers can and cannot treat enemy combatants.

If the government doesn't act in accordance with its code, they are breaking domestic law and will have to go to court to defend themselves. Individuals who break that law can go to prison if they are convicted. But they wouldn't be convicted of violating the Geneva Convention, only of violating their domestic laws.

The only, repeat, only reason Wellington abides by an international treaty or resolution is when it becomes part of its domestic law through enacting legislation. The moment the enacting legislation is repealed, the treaty is broken, and there is no international recourse.

This is important because by believing in modern international law, Mr Hager considers war yucky and harmful to children. No one has the right to make war, any more than they have the right to pollute the environment or call a black gentleman a nasty word. This attitude is growing only stronger – if he is not correct now, he will be soon.

However, I seriously doubt he wants a return to classical international law because by those terms New Zealand’s participation in Afghanistan – and perhaps even violent reprisals against a population known or suspected to be harbouring enemy guerrillas – is perfectly reasonable. I know that’s hard to hear but war isn’t about playing fair. It’s about ending resistance as quickly as possible.

By any sane metric, the Afghanistan war was a no brainer. Forget the whole 20th-century. Apply only the standards of 19th-century international law – or 18th-century, or even 20th-century international law before World War II, or any other freakin' time in human history – and you'll have a zillion certified legitimate reasons for New Zealand to fight Afghanistan.

The European imperialists wrote the textbook of classical international law. Emer de Vattel was the canonical authority from about the mid-18th-century to the end of the 19th. These two paragraphs below get as close as possible to its essence. Note that “natural” means natural law:

“The laws of natural society are of such importance to the safety of all states, that, if the custom once prevailed of trampling them under foot, no nation could flatter herself with the hope of preserving her national existence, and enjoying domestic tranquillity, however attentive to pursue every measure dictated by the most consummate prudence, justice and moderation. Now all men and all states have a perfect right to those things that are necessary for preservation, since that right corresponds to an indispensable obligation. All nations have therefore a right to forcible means for the purpose of repressing any one particular nation who openly violates the laws which Nature has established between them or who attacks the welfare and safety of that society. 
“But care must be taken not to extend that right to the prejudice of the liberty of nations. They are all free and independent, but bound to observe the laws of that society which Nature has established between them; and so far bound, that, when any of them violates those laws, the others have a right to repress her. The conduct of each nation is no further subject to the control of the others, than as the interests of natural society are concerned. The general and common right of nations over the conduct of sovereign state is only commensurate to the object of society which exists between them.”

Under classical international law, a sovereign can’t escape responsibility for anything of importance that happens on its soil. If the attack comes from Afghanistan, it is an Afghan attack, regardless of the internal structure of Afghan government. Thus, the casus belli is quite clear.

Clearly, the Taliban government in Afghanistan was willfully and knowledgeably sponsoring al-Qaeda (just as the Serbian government sponsored the terrorists who committed the outrages at Sarajevo). Despite the camouflage of plausible deniability produced by the absence of a formal organisational link, clear chains of responsibility exist.

This is the thing about the pragmatist. 20th-century pragmatism, so far as I can tell, is just another name for what was once called casuistry. It is a process of thinking that can derive whatever result it needs.

So, in 1945 the New Zealand military was fine with incinerating Germany and Japan, whereas in 2010 it was immoral for the New Zealand military to shoot back at a house in Afghanistan if the house shoots at them.

This is far too short a timeframe for such a drastic moral shift, don’t you think? Something suspicious is happening here. Many people were living as adults in both years. Imagine how their supple consciences have had to twist…

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