The Collapse of a 'Rules-based Order'

By Carne Ross and republished with permission

It was almost funny. For two days in a row, British cabinet ministers have been questioned on national radio on whether the government judges the US bombing of Iran as legal under international law. Neither minister, one the Foreign Secretary, the other Defence, offered an answer. As if believing this might be a credible response, both suggested that the question of legality was a ‘matter for the US’. This of course is akin to saying that the legality of invading Ukraine was a matter for Vladimir Putin.

You don’t have to be an international lawyer to know that attacking another country without provocation is illegal. The UN Charter is explicit on this matter. But you don’t have to know the Charter either. If it were legal to attack other countries that are not attacking you, then almost any military action would be legal.

Foreign Secretary David Lammy and Kier Starmer give speeches and write op-eds about how Britain stands for a ‘rules-based order’. Nearly thirty years ago, when I was speechwriter for the Foreign Secretary, then a Tory, I used to write such speeches too1. Perhaps the current government is recycling my drafts: the platitudes and bromides are the same. The ‘Rules-Based Order’ is a hardy perennial of British foreign policy.

We have seen in recent months and weeks what that commitment to rules means in practice. Neither the US nor British governments have said that Israel has committed war crimes, let alone genocide, in Gaza when the evidence to the contrary is abundant and the crimes are shamelessly announced by Israel, for instance the deliberate starvation of the population of Gaza. The UK has failed to call out the blatant illegality of Israel’s ‘war of choice’ against Iran. No one even mentions the hundreds of aerial attacks by Israel on Syria or Israel’s occupation of a substantial chunk of Syrian territory in the country’s south, including hills overlooking Damascus.

And it is not only Israel that gets a free pass to break international law without comment or consequence. In recent weeks, the UK has reversed decades of British policy on the Western Sahara which was based on the UN resolutions about the issue, resolutions otherwise known as ‘rules’. Britain has declared that while it still adheres to the relevant resolutions, it prefers Morocco’s proposal for the disputed territory, namely autonomy. This sounds innocent enough and the British press has, true to form on this topic, completely ignored this - in fact dramatic - shift. But Morocco’s innocuous-sounding ‘autonomy plan’ is in fact code for continued military occupation, in other words the status quo whereby Morocco has illegally invaded someone else’s country and now governs it - repressively - while ignoring the requirements of the UN resolutions to allow a referendum on self-determination, an obligation it has ignored since 1991. When it was first published, Independent Diplomat, which I then ran, studied the ‘autonomy’ plan and concluded - it was indeed rather obvious - that it didn’t prescribe autonomy at all: all the levers of power - police, army, courts, border control - remained in Morocco’s hands: continued and illegal occupation dressed up as something else.

Meanwhile, elsewhere in the Middle East, another country illegally occupies large slices of Syria. This is Erdogan’s Turkey, which invaded chunks of North West and North East Syria which remain occupied either by the Turkish army or by Turkey’s murderous ‘proxy’, the Syrian National Army. This illegality too passes without comment by Britain, the US or anyone in Europe, who have convinced themselves that Turkey is a kind of crucial ‘linchpin’ between the East and West and an important player on the war in Ukraine where it ‘mediates’ between Russia and Ukraine. Although, in fact, these excuses are in fact camouflage for the real reasons - the UK for instance sucks up to Turkey in order to sell it expensive weapons, the EU in order for Turkey to stop those annoying flows of refugees across the Aegean, and the US in order, amongst many other things, to maintain a major air base in Incirlik in Turkey’s South East, a base which houses American tactical nuclear weapons (fifty ‘free fall’ B61 bombs to be precise, it is widely thought2).

For these favours, Turkey is allowed to ignore international law and indeed all those pesky treaties, also known as ‘rules’, that forbid the abuse of human rights of minorities, like the Kurds, or repression of political opponents, many hundreds of whom, including Erdogan’s main political rival, languish in Turkey’s prisons.

There are other examples, both present and past. Nevertheless, we can see from this short survey that the ‘rules-based order’ is systematically ignored by a country that, in the typical self-regard of Britain’s elites and diplomats, claims to have built it. A rather poignant story illustrates this hypocrisy most vividly - how one individual helped build, then saw dismantled, the ‘rules-based’ order.

A British official called Elizabeth Wilmshurst was a key negotiator in drafting the Rome Statute which founded the International Criminal Court (ICC). In 2003, Elizabeth was the Deputy Legal Adviser at the Foreign Office when she was asked to advise on the legality of invading Iraq without authorisation from the UN Security Council. Her advice was clear: without such authorisation, an invasion would be an unlawful act of aggression.

The Attorney-General, a pitiful Blair lackey called James Goldsmith, ignored Elizabeth’s advice, despite her huge experience and unparalleled expertise in the laws of war (his experience in such, perhaps needless to say, was approximately nil). Instead, he determined that the invasion would in fact be legal, even though the UK had failed to obtain authorisation from the UN Security Council - indeed, it had tried and failed to get such authorisation, its draft resolution to this effect failing to attract the necessary votes to pass. If you ask for permission and don’t get it, then pretty clearly you don’t actually have permission.

I was very well versed in Goldsmith’s bizarre chain of legal reasoning, having shopped it around the UN for years beforehand3. It was ludicrous - that Iraq was in breach of its ceasefire obligations, agreed in 1991 at the end of the ‘Gulf War’, which required it to allow inspections of its - past - WMD sites, thus ‘reviving’ the authority for military action agreed when Iraq first invaded Kuwait. In other words, claiming that the authorisation of the allied action to remove Iraq from its occupation of Kuwait could be used to justify the invasion of Iraq some twelve years later. More threadbare a ‘justification’ it’s hard to imagine. Upon reading Goldsmith’s sham of legal advice, Elizabeth stood up and walked out of her office, never to return. Her resignation was little reported and she sought no public attention (and doubtless would be cross about my mentioning it). She was one of only two British officials to resign over the war.

It is in little stories like these that we can begin to trace the slow but steady erosion of the global system of rules that Britain, like other Europeans, claims to stand for. Today, we must witness the nauseating spectacle of the Secretary-General of NATO’s message to the US President congratulating Trump on his ‘bravery’ in doing what others were not prepared to do - namely illegally bomb Iran. The German chancellor meanwhile applauded the bombing strikes, also failing to mention the small matter of legality which German diplomats are trained to state as the foundation of Germany’s foreign policy (all trainee diplomats are given a full year’s training in international law before being allowed out).

So much for the hand-wringing. What are the consequences of this rank hypocrisy? The journalists who quiz Lammy, Rutte or indeed Trump mention legality as a kind of afterthought, if at all, often at the end of interviews. The BBC presenters seemed to regard it as a kind of rhetorical game to make these mendacious ministers look like idiots. While I too enjoy such games, the longer-term consequences of the West’s hypocrisy, like most of the forces that shape the world, are both far more serious and more subterranean.

Sergei Lavrov was Russia’s ambassador at the UN when US Secretary of State Colin Powell made his notorious presentation to the Security Council about Iraq’s alleged WMD and when Britain tabled its resolution seeking the Council’s authorisation of the imminent invasion. Lavrov has a long memory. He is now of course Russia’s foreign minister. He also remembers Kosovo in 1999 when NATO bombed Serbian forces ethnically cleansing Kosovo of its Albanian population. NATO had no legal authority to do so, even though it was in this case entirely right (Serbia’s actions were, like those it perpetrated in Bosnia, clearly genocidal). Lavrov didn’t and doesn’t care about niceties like right or wrong, nor international law. But he does care about how to sell Russia’s policies to the rest of the world. And so you will hear him loudly mention both Iraq 2003 and Kosovo 1999 when he justifies Russia’s blood-soaked ‘special military operation’ in Ukraine.

This is what picking and choosing when and to whom to apply international rules means - others do the same. China ignores clear rulings of the International Court of Justice in its gradual but nonetheless imperialist island-by-island conquest of the South China Sea. Like Lavrov, China doesn’t actually care about international rules as its grotesque repression in Xinjiang amply demonstrates. But it does care about how others see its actions. Fortunately for Xie and Putin, Netanyahu, Trump and, yes, Starmer (and Merz and Rutte) have made it a lot easier for them to justify their naked aggression.

This much is fairly obvious. But there is more insidious damage yet. The ‘rules-based order’ also rests upon rules like the international covenants on human rights, the convention against torture and other instruments that render human cruelty, usually practiced by states against their peoples, illegal. These rules too are weakened by the selective application of other rules, such as the UN Charter or Geneva Conventions. That story is rarely told because, like most things in our complex world, cause and effect are not obvious or immediate. Hence, Mohammed bin Salman (MBS), the de facto ruler of Saudi Arabia, murders a journalist who dares to question his autocratic reign. This was not the appalling case of Jamal Kashoggi, who was cut to small pieces inside the Saudi consulate in Istanbul on the orders of genially-initialised ‘MBS’ (according to a US intelligence investigation). This murder happened a few days ago, barely reported in the West (or indeed anywhere), when Turki al-Jasser was executed by the Saudi state, the first such ‘official’ execution (Kashoggi’s being presumably ‘unofficial’) under MBS’s supposedly progressive rule.

In some quiet office in a royal palace, or perhaps his bath, MBS will have pondered whether there would be any negative reaction to this killing of a truth-teller (for al-Jasser had authored an anonymous blog about corruption in the royal court). Witnessing the behaviour and rhetoric of Israel, the US, UK and many other Saudi allies (and perhaps even Morocco), he would have correctly come to the conclusion that there would not be any blowback. A brave man is dead because of that hypocrisy but, more broadly, press freedom has taken a major hit in Saudi Arabia with untold long-term consequences. Other repressive Gulf states (which is more or less all of them) will also have taken note. I would not want to be a Shia activist in Bahrain or Saudi Arabia today. Their rights-abusing governments will be taking the gloves off.

In Egypt, the courageous - and non-violent - activist Alaa Abd El-Fattah has spent much of the last decade in jail for nothing more than campaigning for democracy. He is British-Egyptian so the British government is also responsible for him. Lammy and Starmer claim that they are doing ‘all they can’ to secure his release. Obviously, they are not. If they were, the Egyptian ambassador would have been sent home and Britain’s relations with Egypt broken off. That has not happened. What message does the autocrat Sisi take from current events and the contrast offered by the West between rhetorical word and actual deed? In Egypt today, there are an estimated 70,000 political prisoners (!!!). I don’t think they should expect release any time soon, alas.

Who benefits from rules? The weak are of course supposed to be protected by rules. I remember the UN ambassador of a small but well-known country telling me that the rules-based order was very important for his country - it protected them. Likewise, human rights rules are supposed to protect the powerless against the viciousness of the state.

So we can conclude that, as a general rule, it is not governments, or political leaders like Trump, Starmer or Netanyahu, who will suffer from the erosion - perhaps better to call it ‘collapse’ - of the vaunted rules-based order. It is those we do not know, the weak, the voiceless, secretly tortured in some obscure Turkish jail, or murdered by their own government in Egypt or Saudi Arabia. If Putin benefits, it is the Ukrainians who suffer. If Xi is made more comfortable in his country’s aggression and bullying, it is the Taiwanese who may one day pay the price (and if China were to invade that island, the UK and US would be the first to name that act ‘illegal’). And if Netanyahu evades the writ of justice that he well and truly deserves, those who feel the consequences will not be those who quietly ignore their obligations to uphold the rules that protect civilians and stop states behaving like prehistoric savages, it is nameless Palestinian children.

At times like this, I feel it is a genuine pity that we cannot provably trace the line directly between Blair and Bush’s lies over the Iraq War - or any of the many times that the law’s self-appointed guardians have ignored it - and the deaths of the truly vulnerable and innocent (though we can arguably draw such a line to the 500,000 deaths caused by their invasion of Iraq). But have no doubt that such a line, hidden though it may be, nonetheless exists.

This is but one of the many ways that governments perpetuate violence and cruelty in our world rather than mitigate those ills, as the ‘social contract’ between people and authority pretends to require. And this goes to the heart of the matter. No private individual in any state is permitted to behave as the servants - and leaders - of government are permitted - to invade, bomb, torture and murder without fear of legal consequence. When states do act unlawfully, it is very rare that their leaders, or factotums, face justice, for instance at the ICC. It is also rare that other states punish them in their own special ‘state-to-state’ way, with economic sanctions for instance. The only states and leaders who are so treated are of course not powerful, not dominant in our so-called ‘world order’ - they are from African countries or small Balkan statelets.

So what is this world of rules that we talk about? It is of course, like most things, a world of power - who has it and who doesn’t. Who’s friends with the powerful, and who isn’t.

It’s confusing when your Prime Minister, like Starmer in the UK, is a former human rights lawyer who once defended anti-war protestors4 and argued against mass killing at the International Court of Justice (including the genocide case against Serbia) He has made the journey from using the law to protect those who protest or suffer from state crimes to using the law - or rather not even mentioning it - as Prime Minister to protect the criminal (and incidentally prosecuting and, grotesquely, declaring as ‘terrorists’, those who protest this complicity5).

As I’ve indicated, the long term consequences of letting state criminals off the hook - whether Netanyahu, MBS or indeed Putin - are hard precisely to trace in ways that show action A leading to consequence B. The world is not like that. But we can assume these connections while also noting that the more general erosion of a ‘rules-based’ order occasioned by impunity for the criminals endangers some immediately - Palestinian children, Ukrainian civilians, Egyptian political prisoners - but all of us in the longer term. Because the collapse of rules - which is what, I’m afraid, we’re now witnessing - means that there will be more war, more torture and more violence and repression practiced by states, including our own. This imperils every one of us.

1

Please note that I am not a Tory and wasn’t then. In those less contested days, non-political or ‘neutral’ civil servants could serve as speechwriter.

2

There is another troubling story to be told about this type of weapon, which will be told in a future post.

3

Regular readers already know that I was Britain’s Middle East and Iraq expert at the UN from 1998-2002, where I mostly dealt with Security Council resolutions on Iraq’s Weapons of Mass Destruction (WMD)

4

He notably represented protesters who took action on conscientious grounds, such as the “Fairford Five”—activists who protested against the Iraq War by attempting to stop U.S. military flights from the UK. Starmer argued their case at both the Court of Appeal and the House of Lords, presenting a defence based on the idea that their actions were justified to prevent a greater evil.

5

The protest group Palestine Action will shortly be proscribed as a terrorist organisation by the British government because of its direct - but non-violent - actions to protest the government’s complicity in the slaughter of Gaza.