Legitimacy of the Intervention in a Country s Sovereignty

It is interesting that the revolutions of 1688 to 1789 did not place much emphasis on courts. The Bills of Rights were not intended to be enforced by the courts against legislatures. The grievances to which the revolutions were directed were the excesses of an overweening domestic sovereign power. The democratic legislature was seen as the answer, not the problem. The Bill of Rights involved protection against such sovereigns and a statement of the principles that would guide the legislatures. Unambiguously is the case of the UK and French Declaration.

Strong countries are not yet convinced to conform to international law or international legal process. Other players will be more wary next time and other countries are persuaded to take a stronger line in insisting that the intervenient question them about the law they are supposedly enforcing.

If a liberal democracy decides to go to war without sanction of the UNSC (United Nations Security Council) lawyers working for such a government would threaten to resign and would carry out that threat if their country persisted with such unsanctioned action. The analogy is that of the lawyer who knows that his or her client intends to commit a criminal act. In most jurisdictions, the lawyer is under a duty to advise the client of the illegality, to refuse to represent him and to report him (lawyer client privilege explicitly excludes the intention to commit a subsequent criminal act). Few criminal acts are more heinous than the illegal taking of large numbers of lives.

This may seem hopelessly idealistic. What lawyer would give up his job? However, that is exactly what every code of ethics tells lawyers to do in some circumstances. Where the majority of lawyers practice outside of government and the right to appear before courts is decided by the courts themselves, there is hope. As law becomes more international and international tribunals become more important, the hope may be fanned from a faint glimmer to a distant beacon.

There will be a day when those who did not so resign would be disbarred from the international bar and would not be able to appear before any international judicial forums including those covering international contract disputes, international trade disputes and so on. This would reinforce the essential principle that a state which is not prepared to subject itself to the most fundamental of international laws should not expect, or receive, the international protection of the law in economic matters.

In a democracy, we are particularly insistent, and expectant, that soldiers will be loyal to the state which speaks for the people. However, treason is an offense against a sovereign state. Once state sovereignty ceases to be absolute, higher laws apply. If a state is killing people without lawful sanction, it is committing a serious crime and those who are perpetrating it are engaged in a criminal conspiracy of the most heinous kind. Loyalty to the conspiracy may be considered the highest duty by members of the conspiracy (as in the Mafia), but the rest of society regards it as evidence of devotion to the criminal endeavor, making the intent more serious and severe punishment more justified. The same should be true of soldiers fighting in illegal wars.

Just as Nazi war criminals were held to have no excuse at Nuremberg, neither should there be any excuse for soldiers and generals who fight wars of intervention for states which refuse to submit to the jurisdiction of the ICJ (International Court of Justice). The fact that a state is not prepared to accept such jurisdiction should set off alarm bells for any commanding general. The fact that the state has no independent mechanism to provide advice to the Parliament that the war is legal should send off more alarm bells. Indeed, the professional ethics of soldiers should preclude any aggressive acts that are not subject to such an international legality check.

Democracies expect their soldiers to be loyal and to follow orders. However, their adherence to the rule of law should make them particularly mindful of the dilemma generated by an order to act contrary to international law. Democratic nations should seek to protect soldiers from that dilemma by following international law and seeking independent confirmation of the legality of such orders.