The Silence of Lawyers

In the run-up to the second Gulf War international lawyers and the international community were agog over the Bush administration’s suggestion that preventive self-defence would be legal.  Reams of publications were produced.

Now, at a time when the United States is threatening North Korea with ‘fire and fury’, there is virtually no discussion of the legality of the use of force by the United States. International lawyers have gone mum, although, once again, the issue is preventive self-defence.  There are probably a number of reasons for this.

First, both lawyers and the general public might believe that military action is not very likely. If so, they are terribly wrong. When the US Secretary of State is saying that diplomacy continues ‘until the first bomb drops’ there is all reason to believe that military action is being seriously considered. Statements by H.R. McMaster, Lindsay Graham and Nikki Haley underscore how seriously we should treat the possibility of cataclysmic military conflict on the Korean Peninsula.

Another reason for the silence might be that a discussion of preventive self-defence is not very intellectually stimulating. All permutations were discussed at the time of the 2003 Iraq war. And mainstream international lawyers concluded that preventive self-defence is at odds with the provisions of the Charter of the United Nations. The Charter gives the Security Council a monopoly on the use of force, except in case of self-defence in a narrow sense. Allowing preventive self-defence would largely eliminate the role of the Security Council.

Finally, and this is frightening, there might not be much discussion because the Trump administration has no interest in international law, and therefore does not seek to frame any action in terms of legality. Such an attitude would normally create an outcry not only from international lawyers but from all of the international community.  After all, international law is about the preservation of the interests of international society.

Is it really possible that we have no discussions about the legality of the use of force against North Korea because the state that may use such force is not interested in such a discussion?  This we must not allow. If we do, the consequences are likely to be catastrophic!


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