War Law: Understanding International Law and Armed Conflict

By Michael Byers. Vancouver: Douglas and McIntyre, 2005. 214 pages

By James Applegate (reviewer)

International law is a powerful force for peace--it can severely restrict how and when wars are fought. These laws, however, are vulnerable to political manipulation. Never has this been truer than since 9/11.

Just before the 2003 Iraq war, British Prime Minister Tony Blair tried to hoodwink the public into believing that Britain would not accept an "unreasonable" veto at the UN Security Council, when veto power has always been the right of the five permanent members. Similarly, Bush administration lawyers, like Alberto Gonzales and John Yoo, proclaimed that prisoners from Afghanistan and Iraq were not protected by the Geneva Conventions and other long-accepted humanitarian laws.

Such episodes are part of Michael Byers's War Law: Understanding International Law and Armed Conflict. Byers, a professor of law and politics at the University of British Columbia, wanted to create "a readily comprehensible overview of the law governing the use of force in international affairs."

Overall, War Law successfully demystifies international law on armed conflict. Clear, concise and remarkably well-organized, each chapter skilfully focuses on a different legal issue related to international crisis. Most importantly, Byers carefully weighs the legal arguments for and against using armed force in a wealth of historical cases, most since the birth of the UN in 1945. By doing so, he demonstrates that the rules are constantly evolving.

Nearly two thirds of War Law discusses when countries can legally use armed force. Under the 1945 UN Charter, there are only two cases where force is legal: (1) when the Security Council authorizes it, or (2) in self-defence. These narrow criteria seem reassuring, but are subject to political maneuvering.

Security Council authorization is relatively straightforward. Although rare during the Cold War, the Security Council has approved more interventions since then, with humanitarian concerns playing a larger role.

Recently, politicians like Tony Blair have claimed the right to use armed force unilaterally to support humanitarian concerns. Byers, however, counters that unilateral intervention is vulnerable to abuse (democracy in Iraq, anyone?), and has no support in international law.

"Self-defence" is legally complex, as evidenced by three cases involving Israel.

In 1976, Israel launched a raid on Entebbe, Uganda to rescue Israelis from a hijacked plane; this created a legal precedent for self-defence to protect nationals abroad.

Then, in 1981, Israel pre-emptively attacked the nuclear reactor at Osirak, Iraq, to destroy future nuclear weapons programs. The Security Council unanimously rejected Israel's claim of self-defence, establishing a precedent against the 2003 Iraq war.

As for Israel's more recent policy of assassinating suspected Palestinian terrorists, European countries condemn this as illegal. The United States, however, accepts this as self-defence against terrorism; it relied on similar arguments to justify the 2001 invasion of Afghanistan, expanding the legal limits of self-defence as a result.

Both authorization and self-defence come into play in a fascinating discussion of the 2003 Iraq war.

With Security Council authorization, experts debated whether this was implied by Resolutions 1441 and 687. Calling 1441 "an intentionally ambiguous UN Security Council resolution," Byers explains how two opposing schools of legal scholarship interpreted it, one believing the war was authorized.

With self-defence, the 2002 Bush Doctrine claimed the right of pre-emptive military strikes to deal with threats like WMD programs.

War Law describes this as completely destabilizing: "...it would give all states--including every state's potential enemies--an almost unlimited discretion to use force." Fortunately, the world's diplomatic community has flatly rejected this doctrine.

Subsequent chapters explain laws governing military force during wartime: first, to protect civilians, combatants, and prisoners of war; later, to prosecute war criminals.

The book's epilogue, "War Law and the Single Superpower," expresses outrage because the Bush administration's unilateralist policies undermine the UN and "one of the twentieth century's greatest achievements: the prohibition of the threat or use of force in international affairs." This section is weaker, as it jumps onto tangents, including SUVs and Tom Clancy novels!

Still, War Law's conclusions bear repeating. Byers urges America's allies to oppose "the rule-twisting megalomaniacs who have dominated and corrupted US and global politics since 11 September 2001." Instead, we should support Americans who want their nation to "return to the constructive, cooperative, law-abiding approach that led to the creation of the United Nations in 1945 at a conference in San Francisco."

Vancouver writer James Applegate (gallie_young@telus.net) has a special interest in war and peace issues.

Peace Magazine Jan-Mar 2007

Peace Magazine Jan-Mar 2007, page 27. Some rights reserved.

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