Enforceability of law is an aspect determining the effectiveness of a juridical system. Among other theories, a rule of law can be defined as such when it can be enforced by a party in case the said rule be disregarded. Ergo, it can be inferred that the efficiency of a judicial branch within a system determines the validity of the rules of the mentioned juridical structure. In other words, should no competent authority be able to enforce law or should no authority exist or not have enough power, parties have one less reason for abiding the law. If we move to examine this façade within the realm of International Law, it might provoke a series of criticisms. Several weaknesses can indeed be addressed to International Law: for instance, it lacks an effective law-making authority, as well as a functioning machinery to enforce its rule. Not only do the flaws within international law add up to global rules’ uncertainty, but also affect States’ decisions and relations. Several are the faults in International Law. First, it is based upon consent and upon the principle of equality of States (par in parem non habet iudicium), but how much of these principles is deployed in practice? Should a wrongdoing arise due to a State’s illegal act, are the available remedies effective? Such questions lead to debates and discussions over the relevance of international law and its arguable failure in governing global relations. This shall be tackled by looking first at the rules and subsequently at the enforcement of the latter.
Norms in International Law can be argued to be vague and uncertain. Indeed, the law must be general for it shall never address a specific case, instead, it shall always try to contain the largest pool of possible illegal cases. As an example, a law cannot outlaw murder punishing only blond perpetrators. Whether blond, red or bold, a perpetrator of murder shall be punished anyways: specifics are to be omitted in the law. Nevertheless, the rules in International Law seem to be too general to be efficient. An example of such generality can be found also in the most paramount treaties as UNCAT: torture is outlawed but the norm does not prohibit all the practices and means through which it can be perpetrated. This generality in norms is dangerous for it leads to uncertainty and eventually to interpretation. The US torture memos during the Bush presidency are a manifest illustration of how dangerous the interpretation of norms can become. This unquestionably comes out of the consent to be reached over a norm among the entire community of States.
Not only can International Law norms be described as vague and uncertain, but also their enforceability is highly debatable. The organs that are deemed to enforce International law norms do not seem to function properly. The International Court of Justice, for instance, can settle disputes between States only if the latter give their expressed consent to recognize its jurisdiction and to be bound by its decisions. The United Nations Organization holds a relevant role in shaping International Law, especially in the realm of enforcement. Unfortunately, the system of law enforcement within the UN is not as powerful as one would expect. The whole human rights’ protection system is a valid example. Often left to regional organs, human rights issues are badly addressed due either to a lack of willingness by States to prosecute violations or to a lack of funding. According to the structure of the UN, the highest and most powerful organ is the Security Council (UNSC), designated to ensure international peace and security. While manifest is its role to enforce and implement norms of International Law, visible is the anachronism of such organ. Its five permanent members (US, UK, China, Russia, and France) are an evident residual of WW2 and contradict the very essential principle of international law. States are equal and no State has jurisdiction over another, nevertheless the five UNSC members can veto the Council’s decisions. These States are theoretically equal to other States but practically are not. If a State commits an act that violates a norm, the UN may decide to address this but can be stopped by any of them for exercising their veto power. This implies that if one of the five infringes the law, it can as well veto any UN responsive action towards it. In other words, they are given more power than other States and thus they hold an upper position with respect to others.
The UN is a relatively old organization, and so its organs can be described. How truly efficient are UN responsive actions to States’ illegal acts? How solid is the UN justice system? Answers to questions related to the success of the UN, from prevention to punishment of States’ illegal acts, are not satisfactory. The UN continuously failed its mission to maintain, restore or improve international peace. From the Rwandan genocide to the Syrian plight, many are the occasions in which the UN did not prevent war or fulfilled peacekeeping duties. We shall then consider the UN as a useless and inadequate organization not capable of maintaining world order and peace. The entire community of States deserves – and mostly needs – an updated system ensuring justice and security. Attention shall then be drawn upon the recent events in Iran and Iraq. The latest developments that saw General Soleimani, one of the most relevant person in Iran, killed in a US drone strike in Iraq can be interpreted as a symptom of an ill system. President Trump referred to the Iranian General (wrongly) as the number one terrorist in the world and US officials described the killing as deterrence for imminent attacks he was planning. From a legal perspective, the assassination of Gen. Soleimani was absolutely illegal. Justifying a targeted killing by referring to imminent attacks from the targeted party means applying ‘pre-emptive self-defense’. Besides that, US Secretary of State Mike Pompeo and Attorney General William Barr admited on Monday January 13, 2020 that killing of Gen. Soleimani was part of a larger strategy of deterrence. And isn’t deterrence somehow equal to terrorizing? The previous rationale of the US for their brutal killing was that the strike was carried out to prevent an “imminent” attack which now, according to their own statement seems to be not the case. Never can the latter be considered as legal justification for assassination. The drone strike that provoked the killing of, inter alia, Gen. Soleimani was not in response to any attack: it was an unlawful and extrajudicial killing.
While it is early to speak about UN reactions, it is the right time for forecasts. Undoubtedly, these are tense days not only for the US or Iran, but for the entire world. The UN, whose mission is to maintain international order, is expected to take action with respect to President Trump’s decision. Not surprisingly, a prompt UN response is very far in the outlook: the US is one of the veto power holders within the UNSC and able to halt any resolution against them. This represents a huge fallacy in this ineffective system that is concretizing into a dangerous situation. Such an illegal assassination can indeed be interpreted as a true declaration of war. Evidence of this are the erupting protests in Iran and the latest acts and declarations by the Iranian government – especially the withdrawal from the nuclear deal. From all the viewpoints, Trump’s decision seems critic for the international order. The unpunished and not-so-largely criticized illegal act ordered by the US President can alter (and has already altered) the fragile equilibrium of the middle-east. The General was killed in Iraq, but would have the strike be ordered if Gen. Soleimani had been in another country, say Germany or France? This continuous fire the US is throwing at the middle-east, that surely meets response, cannot but increase tension over future conflicts. The neutral words of António Guterres, UN Secretary General, surely cannot reassure us of a proper authority ready to intervene in such an escalating situation. Facts and decisions are needed, law-enforcement is urged and proper justice needs to be made.
Reactions by other States as well cannot be said to be satisfactory. The late diplomatic response by the EU is not helping for putting a firm hand over this situation and neither the NATO response meets the expectations we could have. The NATO Secretary-General chose words that do not address the illegal act in a proper manner, instead only stress the unilaterality of the decision taken by President Trump. In the press releases NATO showed solidarity towards the US, and did not release any statement regarding the illegality of the assassination.
The US killed without a legally justified reason an Iranian citizen who happened to be one of the most influential persons in the Country. When someone is assassinated, the perpetrator is prosecuted and tried. When a relative is killed, his or her family can rely on a judicial system that helps them seek vengeance by trying and sentencing the killer. Thus, what would happen to a person ordering the assassination of a foreigner on the soil of a foreign country, who does not even have a legally sound justification? The international justice is poisoned by the malfunctioning system governing International Law and indeed by a sick structure that plods along. We could expect few effective reactions by the United Nations: this obsolete organization is not countering these events looking at the rule of law, instead acts while strongly politically driven.
Hours following the attack and the responses of Iranian authorities, President Trump has used social media platforms to threaten Iran of any consequence for any retort. He wrote to also be targeting fifty-two Iranian sites representing Iranian culture, ready to be hit ‘very fast and very hard’ and perhaps in a ‘disproportionate manner’. The Iraqi parliament, on the other hand, has voted to expel US troops from the Country. President Trump’s response involved a threat of very high sanctions towards Iraq ‘like they’ve never seen before’, he wrote. The latter may indeed be perceived as an attack to the territorial sovereignty of the State of Iraq. These warnings towards Iran and Iraq continue to be persistent arbitrary decisions not encountering any judicial halt.
The UN system is now an old-structured incompetent system that is not capable of containing the power and the actions of its own members and surely is not able of enforcing international law. States do not to hold equal positions before the UN: the most powerful States are the ones shaping international decisions and thus international justice. This might as well lead the rest of the States to a quest for power, seeking supremacy and authority in order to liven up to and defend themselves from the strongest. The logic of the most powerful and the outdated UN system contribute to a weak application and enforcement of international law, further deteriorating international relations.
Although the system is outdated, this can be renovated. States shall build a different organization, with a different concept. A new organism where every State, even the smallest and the military weakest, factually has the same power as the others when it comes to decisions. This is why we are working every day for generating new ideas over a new structure able to truly benefit all the States. It is our prerogative to produce new concepts for a rearrangement of the State’s roles and powers. It is not just that some States can trample on International Law norms without any authority halting it. Although the UN already purports States’ equality, this is not reflected in its actions. In order to (re-)gain power and authority, all States shall unite. Only when the whole gathering of governments is unified for a congruent purpose, can the strongest be pulled down. Yes, this will be a very difficult decision, but sometimes it is necessary to make difficult decisions to bring giants down, and today this seems more than necessary. States shall feel this urgency for renovation and seek for a new system that guarantees international justice and enforcement of international law.
Mr. Masoud Taheri & Mr. Massimo Fattori
Picture: wikimedia.org
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