The law of conscience and the law of the world
That the law can be wrong is by now a well-understood principle. It may once have been thought that those who ruled did so by divine right and their laws therefore had the sanction of divine will, but within the community of nations and for a global public now familiar with democratic norms, this is no longer an accepted justification for human misrule. Neither is the more general idea that there can be no moral source beyond the law itself - no principles to which appeal might be made in challenging laws and policies that are unjust. There are many reasons why such defences of the sacredness or unchallengeability of law no longer carry persuasive force, but one of them is the development during the last century, and particularly after the Nuremberg Trials, of the body of doctrine we have come to know under the heading 'crimes against humanity': a set of principles limiting the scope of sovereign authority, restricting what governments may rightly do, including (indeed especially) to those living within their jurisdiction. States too, we have become accustomed to thinking, can behave in a criminal manner, for there is a law to which states and those who act for them are answerable.
It is not difficult to see, however, that by theoretically resolving one kind of issue, this locating of another level of law - so to say 'above' states - simply lifts the problem of what to do when the law itself is wrong or remiss on to a different plane, rendering it a global rather than merely national problem. We should not repeat at the planetary level an earlier mistake of treating law and the institutions which are supposed to embody it as above moral question or challenge. Just because international law has the function of holding governments in check, it does not follow that that law and its would-be agents are always to be respected. On the contrary, I propose today, and for a reason that is topically obvious, what I'll call The Zimbabwe Thesis. The thesis could have been proposed earlier and given other names. No matter. The name is merely contingent. It is the thesis itself I want to argue for.
It is this: the regime of international law, that is, the framework of institutions that is meant to uphold international law, should be held in contempt by all those committed to democracy and human rights, so long as and to the extent that those institutions are merely a cover for inaction and/or connive at the most blatant criminality by states against their own peoples.
The UN Security Council will today discuss the crisis in Zimbabwe. Well, it remains to be seen what effective law enforcement, if any, that body will decide upon. But in the light of what has happened so far, it does not seem unduly cynical to suggest that '[t]here'll be wringing of hands and pious platitudes, but not much else'; or even that 'Robert Mugabe has international sanction for his barbarism'. It is no secret what has been happening in Zimbabwe these last three months, to say nothing of the years preceding that. A Guardian leader says 'the whole world knows yesterday was a triumph for terror'. The whole world knows because the Mugabe regime has openly pursued this terror, and it has been reported amply in the world's media. Mark Malloch Brown says:
This is a challenge to all of us about the kind of world we want to live in, whether we are British, Russian, Chinese, or South African. To allow this kind of abuse to go on before our eyes and not to address it would be unacceptable.
Unacceptable is right. But it didn't start today, nor even in March. The crimes of the Mugabe government are an old story, going back as far as the early 1980s. What has so far been done by the UN? Even allowing that law enforcement in this domain is a difficult and potentially costly business, has there been even a single indictment issued against Mugabe or any of his henchmen? It is hard to respect a system of law which has no effective mechanisms of enforcement, much less one with so little apparent will to try and ensure the upholding of its own laws.
How can a citizen of any country respect a legal system which essentially stands by to the criminality of governments that have a place in the very councils whose task it is to strengthen international law? Countenancing the rape, torture and murder of Zimbabweans that system thereby countenances the rape, torture and murder of anybody, and therefore of you too. For the principle is a general one: it's not that Mugabe's thugs may destroy this man or this woman; it's that a government, a regime, may get away with killing those under its jurisdiction for all that the agencies of international law are likely to do about it. That is not a legal system to be esteemed. The publics of democratic countries also have an obligation in this regard. We should not accept, we should denounce, a system of law that accommodates such things.
Can one support the idea of a law-governed world and the development of international law to this end, while at the same time holding that system in contempt and condemning it for its failures? Indeed, one can and one should. The criticism and condemnation are for its shortcomings. In so far as the law and its implementation (where, as rarely, this occurs) live up to an acceptable ideal of the rule of law, it should be supported.
[24 June at 11.00 am: I have amended the post to remove a careless - and false - reference to legal positivism.]
