Tuesday, 26 January 2010

(Who says) the Iraq war was illegal?

Just a bit of musing before I go to bed, but I’ve been pondering on the question being addressed by social and political commentators as to whether the Iraq war was ‘illegal’. I was particularly struck by the fact that Guardian journalist George Monbiot not only thinks it was, but is particularly incensed at Tony Blair, to the extent that he has started a website calling for his arrest. Monbiot has also put up £100 ‘bounty’ as a contribution to the person who first arrests Blair.
Considering Monbiot’s clear sense of righteousness and the scale of the crime he alleges Blair has committed, this doesn’t seem to carry much practical conviction. Compare it with the £50,000 offered by Ross McWhirter for the arrest of PIRA bombers, which actually got him killed, and I think you’ll see what I mean. Nevertheless, it raises an interesting question as to what we mean by an ‘illegal’ war.
What is law?
Maybe I am naive, but I thought that, in common parlance, laws were statutes declared and established by competent bodies such as parliaments, monarchs, etc. I have found one definition of ‘law’ as “a rule or body of rules of conduct inherent in human nature and essential to or binding upon human society”, but this is itself arguable as a definition, and in any case there is clearly room for disagreement on what such rules might be.
In China, for example, the death penalty is ‘the law’ in many cases. Yet in the European Union, the death penalty is regarded as abhorrent. Who is right? The death penalty is clearly not ‘essential’ (as in the above definition), but it is equally clearly not antithetical to a stable and economically successful society, as China increasingly proves. (Indeed, it is arguable that the ruthlessness underlying the Chinese attitude to the death penalty has greatly contributed to China’s social and economic development.)
Moreover, there is surely a case for arguing that war is, indeed, inherent in human nature. Social conditioning may successfully persuade us otherwise, but wars and rumours of wars continue to abound.
It seems to me, then, that ‘law’ is more usefully considered as “the collection of rules imposed by authority”.
Under whose law?
Yet this definition immediately poses the question, “Whose authority?” And this raises the further question, “Over whom does this authority extend?”
Readers of the Bible will perhaps be familiar with the notion of the suzerainty treaty. This imposed certain terms and conditions (some welcome, some not so) on two parties, not by common agreement but by the stronger dictating to the weaker. We may feel this was ‘unjust’, but such treaties certainly had the force of law.
Indeed, I know people today who feel our own laws about smoking are also unjust, and are unreasonable. Yet the law is the law, and against their personal judgement those people have given up smoking in their own offices.
With the debatable exception of theocracies, the law, ultimately, is clearly a human invention. It is not determined by our DNA, or by the physical properties of the natural world, but arises out of our own, sometimes mixed and conflicting, understandings of right and wrong and of the necessary means to achieve what is widely (though not necessarily universally) regarded as justice.
It is thus, to an extent, always arbitrary and is limited in scope by the capacity of the lawmakers to enforce it.
Who is under the law?
Those familiar with our Book of Common Prayer may be aware of one particular manifestation of this principle, where it says in one of the prefaces that, “... in these our doings we condemn no other Nations, nor prescribe any thing but to our own people only.” This, it would seem, is another principle of the law: that it applies only to those people over whom the lawmakers, for whatever reason, have authority of some kind.
In this particular instance it meant the people under the authority of the English king (though it should be pointed out that this included not just the English but those in, as Article XXVII put it, “other his dominions” — such as Calais, for example). The point is, however, that just as the authority of the monarch extended to all his realm, the authority of others was excluded from that same realm. Thus, as the same Article says, “the Bishop of Rome hath no jurisdiction in this realm of England.”
Now as is well known, this principle no longer applies, in that our Parliament now accepts the authority of European law and lawcourts. Nevertheless, their writ only runs here because we have agreed, through Parliament, to allow it to do so. It is perfectly possible, at least in theory, to overturn that situation, just as the English Reformation began with rejecting the legal authority of the Pope.
Back in 1965, the then Rhodesian government shocked the world, or the UK at least, with a Unilateral Declaration of Independence, freeing it from British rule. This was, of course, immediately declared illegal —indeed, it probably was against the law —but since it was a declaration (unilaterally) that the law no longer applied it posed certain questions about what ‘the law’ meant.
This was not the first time such a thing had been done, even to Great Britain. The United States of America had come about as the result of a rather more successful enterprise some years earlier.
But the point is this: if a nation, or a community, chooses to do so and has the physical power to carry out its wishes, it can simply leave one legal system and set up another of its own. There is no ‘natural’ law that prevents such a thing happening, nor is their a universally accepted legal framework which renders it illegal.
Back to Blair
And that brings me back to the question of Tony Blair, for we must ask whose law he is supposed to have broken, and why that law should apply to him. And we must also recognize that, if the United Kingdom so chose, it could —even against existing laws —simply act as nations have done in the past, and remove itself from a legal framework to which it takes exception.
In other words, Tony Blair may, by one definition, have ‘broken the law’, but the definition will, in the end, be entirely arbitrary, and could presumably just as easily be reshaped so that he is entirely immune from prosecution.
Comments, please!
Revd John Richardson
26 January 2010
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  1. This comment has been removed by the author.

  2. I think the problem lies in the fact that under the many conventions that exist it is 'illegal' for any nation state (or states) to enter another and remove a legitimately established government. There are caveats to this and had we in fact acted when chemical warfare was being used against Kurds or when genocide and the destruction of the habitat and area that contained 'Marsh Arabs' was taking place we would have done so legitimately (and therefore lawfully).

    The reality is that we left it a little too late before we engage in the invasion of Iraq and this raises questions about the entry. The parallels between Ian Smith and UDI and Iraq lead us to compare things which are not 'like for like'. the reality is that it was political will and an unwillingness to light the touch-paper that was Africa at the time which led to sanctions rather than gunship diplomacy but reading the history of the events surrounding it, many called for an iron fist approach which, unlike the Iraq situation, was ignored. Parallels here with Zimbabwe are obvious and with some of the excesses and happenings there is, in the yes of some, justification for an entry by UN forces.

    As for breaking the law - you are so very correct (as I see it) in that laws may well be broken but as Jack Straw's part has shown, they will merely be ignored and be nothing more than an 'arbitrary' passing comment.

    Bit like war criminals really - only seem to exust on the losing side,


  3. This is a higher order question of course than Goldsmith was concerning himself with in this morning's evidence. He has been asked to justify advice given on the basis of an interpretation of the wording of a UNSC resolution, and obviously not the whole basis of international law.

    It is another example of human society taking a biblical concept (here, law) and jettisoning the foundation for the framework (a sovereign God), rendering it disfunctional. This absence of an absolute benchmark means that law will always be relative, and therefore only enforceable (internationally, at least) by common consent.

  4. Not an answer to the question, but something that has a bearing on it. A few years ago Tony Blair publicly apologised for Britain's role in the slave trade, which wasn't illegal at the time.

    Confessing other people's sins is a relatively undemanding exercise, especially since they are no longer around to defend themselves. It might be better for him to confess his own sins, including leading his country into three wars within ten years, in which hundreds of thousands of people were killed.

  5. Tony Blair has lots of blood on his hands - but only a small portion of it derives from Middle Eastern wars, by far the biggest proportion from his govertnments' promotion/acceptance of abortion. The many people who condemn Blair for his lesser crimes (eg. the Guardianista you cite) are quite happy about his greater crimes - this is all down to the gross hypocrisy, and inverted values, which currently rule our post-civilisation.

  6. There seems to be two slightly different issues here. Firstly have we gone against laws and treaties that we have written (for instance, have we bound ourselves to abide by UN rulings, or recognise the sovereignty of Iraq under Saddam Hussein). If so we should have repealed those laws first using the right mechanisms (whatever that might have been). Only after that could we have gone to war.

    The other issue is whether God has granted the UK government the authority to go to war against another country that was not at war with the UK. We know that God has given the UK government some authority (Romans 13) and we know that there are some areas where the government has no authority (e.g. over the life of an unborn child). The question is which of these categories does the war in Iraq fall into?

    Our problem is that we often equate what's legal with what's moral, or we assume that governments derive their authority from the people they govern, rather than from the one who has all authority in heaven and on earth.

  7. --(for instance, have we [the UK] bound ourselves to abide by UN rulings, or recognise the sovereignty of Iraq under Saddam Hussein)--

    Since as a P5 Security-Council member the UK possesses veto-rights, unless its plenipotentiaries are particularly daft how can the UN rule against it?

    Michael Canaris

  8. The use of force against Iraq was probably the right thing to do (in a moral sense) given its treatment of the Kurds, Marsh Arabs, its invasion of Kuwait and her lack of respect for UN Resolutions. It would have been much neater (in a legal sense) if this force had been been sanctioned by the UN. It is the UN I blame for forcing the situation through its impotence.
    That said, I have a suspicion that Tony Blair may have seen the opportunity for his 'Falklands moment'. Are the attacks on Tony Blair and George Bush really the result of failure to bring about flag waving, cheering crowds celebrating a successful victory.
    Nic Houghton