Lord Hermer, international law and history

Being Attorney General clearly doesn't protect one from saying silly things...

As a member of RUSI I was unable to attend Lord Hermer’s talk this week. However, I have had the opportunity to read it in full this morning, and to catch up on the controversy it has provoked. The speech has left me bemused, but not for the reasons the Attorney General has found himself in the press.

I don’t know Lord Hermer personally and assume that he is a man of intelligence and integrity. However, the presumptions upon which he based a significant part of his argument strike me as being remarkably naïve. They are certainly ahistorical. His underlying assumption seems to be that international law must be regarded by us as a perfect good. It should therefore trump national interest, which by extension must be regarded as an imperfect good.

I am a historian, not a lawyer, but even I can see that some laws are intrinsically bad. What is more, international law is the fusion of multiple sources of national interest that create a set of obligations to which the many are then constrained. Consequently, international law requires national agency, to protect and sustain the purposes to which the law is constructed. It is therefore a partnership between multiple national interests which coalesce together in treaties and agreements that serve multiple national interests. The idea that international law is a medicine to alleviate the crimes of national interest is therefore illogical, as, to repeat, international law is the product of multiple national interests coming together to serve a common interest. But this public good will never be perfect, and, again to repeat, requires positive agency by those same despised national interests to make it work.

A couple of obvious examples of international law not being good, nor working effectively, jumped out at me as I read Lord Hermer’s speech. In 1936 Hitler brazenly abrogated international law by remilitarizing the Rhineland. International law did not protect itself or stand up for its prerogatives and injunctions. It couldn’t, of course. This required national agency, which as history sadly attests, wasn’t forthcoming at the time. As Lord Dannatt and I demonstrate in Victory to Defeat neither Britain nor France had the political will to intervene to uphold international law even if they had the military means to do so (France did; Britain didn’t). If it had, we may have avoided the Second World War. More recently, the United Kingdom and others committed to protect Ukraine in exchange for the relinquishing of its atomic weapons. A fat lot of good that did Ukraine when it was invaded in February 2022! What is more, the country that invaded Ukraine was one of the five permanent member of the United Nations, the organisation which I can only presume Lord Hermer regards as the world’s ultimate law-making body. What good is international law if the national interest of one of its members abrogates it so egregiously? International law is, therefore, an artificial construct, a product of the goodwill of national realism. It can only work if the nations that create it believe it worthwhile. It isn’t a good in itself, and national interest isn’t as a consequence a lesser good. It strikes me that Lord Hermer has got his hierarchy of power inverted. To imbue international law with moral efficacy simply because of what it is not (i.e. national agency) seems to me an argument of absurdity. It is certainly a logical fallacy, which is surprising (and worrying) given its source.