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Legal Interventions

  • K. M. Fierke

Abstract

One fundamental criticism of international law, frequently heard from realists, is that states can ignore it with more or less impunity. In this line of argument, international law is made by states for their own purposes and advantage. If states wish to break the law there is no proper authority or judge to prevent them from doing so or to punish them afterwards. However, major breaches of international law are relatively rare. States observe the law most of the time and most of it all of the time because it is convenient, profitable, and helpful to do so.1 States can break the rules with impunity but their reputation will suffer in the long term. In fact, those who do break or bend the law, make great effort to provide a legal justification for their questionable acts. The desire to justify acts on the basis of existing laws is a reaffirmation of their importance, even when these acts represent a violation. In this respect, much international law is normative in so far as it sets standards, building on what is already established practice to develop expectations of future behavior.

Keywords

Security Council Humanitarian Intervention International Criminal Court International Criminal International Peace 
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Notes

  1. 1.
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  2. 2.
    According to Shaw, the essence of custom, according to Article 38, is that it should constitute “evidence of a general principle accepted as law.” Thus, two possible elements constitute custom. First, the actual behavior of states and second the belief that such behavior is law. In 1950 the International Court of Justice declared that a customary rule must be “in accordance with a constant and uniform usage practiced by the states in question.” In a later case, the court ruled that it was not necessary that a practice be “in absolutely rigorous conformity” with purported customary rules. The court continued “In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of states should, in general, be consistent with such rules, and that instances of state conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.” M. N. Shaw, Theory of International Law, 3rd edn (Cambridge: Cambridge University Press, 1991), pp. 62–5.Google Scholar
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    John Locke’s Second Treatise of Government, published in 1689, was an important theoretical articulation of the argument that human rights are inalienable. John Locke, Two Treatises of Government (Cambridge: Cambridge University Press, [1689] 1960).Google Scholar
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    Among others here refers to crimes against peace, war crimes, and conspiracy. Prosecution for crimes against humanity and crimes against peace was itself a focus of controversy given these had not been clearly recognized as criminal in existing international law, and, it was argued, thereby violated the legal principle that subjects should not be tried under law enacted expost facto. David Cohen, “Beyond Nuremberg: Individual Responsibility for War Crimes,” in Carla Hesse and Robert Post, eds, Human Rights in Political Transitions: Gettysburg to Bosnia (New York: Zone Books, 1999), p. 56.Google Scholar
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    For a discussion of the concept, Alan James, Sovereign Statehood: The Basis of International Society (London: Allen and Unwin, 1986).Google Scholar
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    As cited in Michael Howard, “The Historical Development of the UN’s Role in International Security,” in Adam Roberts and Benedict Kingsbury, United Nations, Divided World, 2nd edn (Oxford: Clarendon Press, 1993), p. 64.Google Scholar
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    A further concern, which is indirectly relevant here, is whether it is legal to move governments to act if doing so is in conflict with their own interests. As Kuper has argued, in responding to genocide the UN has tended to evade responsibility, protect offending governments, as well as be preoccupied with state interests, and regional alliances. Leo Kuper, The Prevention of Genocide (New Haven, CT: Yale University Press, 1986), p. 160. See also: S. Totten, W. Parsons, and I. W. Charney, eds, Century of Genocide: Eyewitness Accounts and Critical Views (New York: Garland Publishing, Inc., 1997), p. 22.Google Scholar
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    For a discussion of the issues surrounding the International Criminal Court, see: Howard Ball, Prosecuting War Crimes and Genocide: The Twentieth Century Experience (Lawrence, KS: University of Kansas, 1999). Other books on war crimes tribunals include: Mark Osiel, Mass Atrocity, Collective Memory and the Law (Transaction Publishers, 1997), and Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton: Princeton University Press, 2002).Google Scholar
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    This term was a product of the war in the former Yugoslavia, and was not previously a category of crime. The UN Commission of Experts defined ethnic cleansing in a January 1993 report to the Security Council, as “rendering an area ethnically homogenous by using force or intimidation to remove persons of given groups from the area.” For further detail regarding the criminal offences subsumed by this category, see: Roy Gutman and David Reiff, Crimes of War: What the Public Should Know (New York: W. W. Norton and Company, 1999), p. 136.Google Scholar
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    Martha Minow, Between Vengeance and Forgiveness (Boston, CA: Beacon Press, 1998); Mark Osiel, Mass Atrocity, Collective Memory and Law. Google Scholar

Copyright information

© K. M. Fierke 2005

Authors and Affiliations

  • K. M. Fierke
    • 1
  1. 1.School of Politics and International StudiesQueen’s UniversityBelfastIreland

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