THE recently released Chilcot Report of the Iraq Inquiry has created quite a stir in international law and politics. Crucially, its bruising fallout for the UK and US also offers important takeaways for our own government and judiciary. Chief among them is to cultivate the understanding that the full spectrum of the rule of law also includes adherence to the international rule of law. International law, therefore, cannot be simply airbrushed or taken lightly.
While cataloguing the transgressions of the Blair and Bush administrations, the Chilcot Report’s findings have retrospectively affirmed the viewpoints of several leading international lawyers and diplomats. Back then, I had cautioned against sending Pakistani troops to Iraq while also questioning in several op-eds the legality of intervention for lack of explicit UN Security Council authorisation.
My writings included a refutation of Henry Kissinger’s position that UNSC Resolution 1551 passed in 2004 legitimised the ‘occupation’ of Iraq through its mandate to establish a governing authority in Iraq. The Chilcot Report, with its unambiguous conclusion that a fresh UNSC resolution explicitly authorising the use of force was indeed necessary for any lawful and legitimate intervention in Iraq, has similarly shredded all such dubious assertions.
States cannot set strategic goals which contradict existing or even evolving international norms.
In affirming the centrality and indispensability of international law to the conduct of states, the report makes it abundantly clear that all actions of states must have a legal basis that is firmly anchored in international law.
States, therefore, cannot set strategic and foreign policy objectives which contradict existing or even evolving international law and norms. And when states fail to conform to this calibration, particularly with respect to conduct outside their territories, they face grave consequences, perhaps not always immediately but certainly in the long-term.
To be spared global embarrassment and also to enhance the likelihood of achieving their strategic and foreign policy objectives, states are crucially guided by potent self-interest in ensuring that their actions are in harmony with international law.
Another important lesson to be drawn from the Chilcot Report by our government and judiciary is to develop awareness about UN-based legislation, especially the Chapter VII resolutions passed by the Security Council, which has now also become a global legislative forum. This is critical because our foreign policy goals and objectives must also be aligned with these UN international legal instruments.
About 15 years ago, when UNSC resolution 1373 was adopted, I remember bringing it to the attention of the then law secretary who simply brushed it aside as if it was of no relevance. But, sensing the new shifts in international law as a result of legal instruments rolled out by the Security Council in the aftermath of 9/11, we initiated a series of workshops at the Research Society of International Law, Pakistan, in which the participants invited from the government sector were made aware of the significance of these fresh UN obligations.
In the meanwhile, the Foreign Office and other relevant government quarters in Pakistan began to realise the seriousness of the Security Council resolutions and the work of its counterterrorism committee. The state, accordingly, began to readjust its foreign and domestic policy, particularly with respect to non-state actors, in order to conform to the Security Council resolutions on counterterrorism.
Yet another UN law on non-proliferation was laid down in UNSC Resolution 1540 in 2004, creating extensive legal obligations for states to take measures against proliferation of weapons of mass destruction through controls over their employees and sites etc. Pakistan responded to this by enacting the National Command Authority Act which in its statement of objectives refers to 1540.
More recently, Pakistan’s improved legal understanding of the UN legal instruments has primarily driven the decision to investigate and prosecute the perpetrators of the Mumbai and Pathankot attacks.
The rule of international law also occasionally displaces the rule of domestic law including settled constitutional jurisprudence. This may not sound pleasing to some but the reality is that the traditional all-encompassing conception of state sovereignty under international law has been whittled down in the interest of achieving international rule of law.
If Pakistan thus ratifies an international treaty, its domestic law may have to yield to implement that treaty and the judiciary may even find limitations on the arguments about supremacy of the Constitution. This is also in line with Article 27 of the Vienna Convention on the Law of Treaties, 1969 pursuant to which domestic law will yield to international law in cases of conflict between the two.
In the Chilcot inquiry we sense the desperation of a political government manoeuvring favourable legal advice for the simple reason that even the most powerful countries in the world do require legal support to advance their strategic objectives.
Similarly, in the case of US drone strikes, the US government sought legal advice from Harold Koh, its State Department’s legal adviser, who in a White Paper attempted to fashion a justification for US drone strikes under international law by controversially arguing that America’s armed conflict with non-state actors permitted it to use force against them wherever they may be found. This White Paper though was successfully rebutted by our law ministry in 2013 during the interim government period.
But, despite such positive trends, there is still a serious dearth of international law capacity in the country. It is high time for Pakistan to make this strategic intellectual investment, just as China is doing at the moment.
The writer is president of the Research Society of International Law and an ex-caretaker federal law minister.
Published in Dawn, July 25th, 2016