(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.

UDI
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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