01.06.2023

Defending the right to oppress

Ian Spencer gives his take on the trial of the Shenstone Six after their militant protest against Elbit Systems

Elbit Systems is Israel’s largest arms manufacturer, with a presence around the world. It has an extensive catalogue of offensive weapons and surveillance hardware, which has been deployed in the killing of Palestinians, including children.¹ These war crimes are part of an Israeli government policy of ethnic cleansing the Arab population of Palestine.² In recent years, Elbit has been the subject of divestment by companies and pension funds in Norway, Denmark and Sweden, among others.³

UAV in Shenstone, Staffordshire, make engines for armed drones and is a company owned partly by Elbit. It has been the target of campaigns by Palestinian solidarity activists, particularly Palestine Action. Two years ago, Tony Greenstein, a founding member of the Palestine Solidarity Movement, went with comrades from Palestine Action to draw attention to the company’s murderous activities, but was arrested, detained and has recently been tried at Wolverhampton Crown Court for “conspiracy to cause criminal damage”. He was convicted by a majority verdict, along with Ibrahim Samadi. Alex Waters and Jeremy Parker were convicted unanimously. Bethany Clowackin pleaded guilty before the trial began and the jury failed to reach a verdict on Helen Caney.⁴ Those convicted have been warned that they face custodial sentences.

It is important to note just how effective Palestine Action has been. In 2022, Elbit Systems lost two lucrative contracts for the Royal Navy, arguably due to the attention drawn to the repressive use of their systems in Gaza.⁵ Palestine Action activists have also previously been acquitted of conspiracy to commit criminal damage at Southwark Crown Court in 2022. The five defendants had thrown red paint, to symbolise the blood on the hands of Elbit Systems, during their picket of the London HQ in October 2020.⁶

Until recently, the defence of ‘lawful excuse’ has been employed to defend people charged with criminal damage. The legal argument is that the law against criminal damage should not be so pervasive as to prevent another legal right - that of protest. However, in the case of the Shenstone Six, judge Michael Chambers had from the outset prevented the defendants from including their motives as part of their defence - or including anything other than a statement of the ‘facts’. However, the fact that the drones were being produced in order to commit war crimes was ruled inadmissible, thereby excluding the defence of the necessity to prevent a greater crime.

The defence of the Colston Four followed that of those tried for the successful removal of the statue of the slave trader, Edward Colston, to the depths of the Bristol docks. They argued that the damage to the statue was lawful because it was a proportionate exercise of the right to protest, and the prosecution was a disproportionate interference with the right to protest under the European Convention on Human Rights (ECHR). This has led to unease in the ruling class about the irksome tendency of working people to make use of rights which they have won over the years. One consequence of the acquittal was that home secretary Suella Braverman referred to the court of appeal the question of whether the ECHR could be used as a defence in future, making it less likely that a similar defence could be successfully mounted.⁷

Conscience

In 1670, the ‘Bushel case’ supposedly established the independence of the jury from coercion by judges. Edward Bushel was a member of the jury in the trial of William Penn and William Mead. He and the rest of the jurors refused to bring the expected guilty verdict of ‘unlawful assembly’ against two Quakers, though the jury were held without food, water or heat for two days.

The jury members were fined, and Bushel refused to pay. Following a writ of habeas corpus, the ruling was that a jury could not be punished simply on account of the verdict it returned and that it “established the right of juries to give their verdict according to their convictions”. The decision is commemorated at the Old Bailey by a plaque.

Now, it would seem, merely reminding a jury of their right to reach a verdict according to one’s conscience can lead to arrest. In March 2023, judge Silas Reid ordered the arrest of retired social worker Trudi Warner for holding up a placard saying, “Jurors you have an absolute right to acquit a defendant according to your conscience”, while outside a trial of three Insulate Britain activists. The case was subsequently referred to the attorney general.⁸

The basis for what some legislators regard as ‘perverse acquittals’ has a distinguished history. In 1984, civil servant Clive Ponting revealed official secrets about the sinking of the Argentine warship, General Belgrano. He was acquitted, despite the judge directing the jury to find him guilty, because, the defence argued, that the secret was revealed to a member of parliament, Tam Dalyell, and it was in the public interest that it should become known by one and all. The Official Secrets Act was subsequently amended to prevent such a defence in the future.

It is not as if the importance of civil disobedience is not acknowledged (depending on the situation, of course). As Lord Hoffman put it,

My lords, civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind.⁹

Of course, the noble Lord goes on to apply a series of caveats and exclusions which assert that civil disobedience is acceptable providing it stays within acceptable perimeters.

The increasing pressure on the judiciary to prevent protest, the development of laws such as the Public Order Act 2023 and the Police, Crime, Sentencing and Courts Act (2022) and others strongly suggest that the state is afraid - but of what? Even the recent increase in industrial action does not suggest that the ruling class faces an immediate threat. Most of the trade unions have continued to police themselves and employ the kinds of action that are easily contained within the framework of law, while calls for the overthrow of capitalism are unheard in union circles.

While Palestine Action has caused considerable inconvenience to Elbit and the state of Israel, its actions could have been contained by existing law. However, perhaps the fact that the actions of Israel are becoming more transparently brutal and juries are less likely to regard Elbit as the victim of criminal action means that something has to be done. It is always worth remembering that the struggle against apartheid, at least in Britain, was fairly muted until the 1980s.

The weaponisation of anti-Semitism in the UK against the left and its equation with criticism of Israel has, paradoxically, made the struggle of the Palestinian people more visible. It has taken place in the context of increasing opposition, within Israel, about the way the law has become explicitly racist and is therefore moving away from ‘law’ in the bourgeois sense. For law to be effective as ideology, it must at least appear to correspond to reality and at least appear to apply to universal bearers of rights: ie, all citizens.

Could it be that capitalism, in decline, is finding it harder to maintain the superficial appearance of the impartiality of law and is developing an unease regarding any form of protest? The arrest of Republic protestors on the eve of the coronation of Charles Windsor, despite weeks of negotiations with the police, appears to be an act of weakness rather than strength and has doubled the membership of Republic. Right now capitalism is not maintained by force in the first instance. Commodity fetishism and the reserve army of labour are both much more effective for containing a restive proletariat. Exploitation must at least seem to be a natural feature of society.

While we continue to exist in a condition where there is no viable alternative to capitalism, the means by which protest can be expressed takes an individual form, on the one hand - often valiant, but isolated and easily defeated. On the other hand, another form it can take - as we saw in the terminal decline of the USSR and increasingly today throughout the advanced capitalist countries - is that people just work badly. As the social contract of capitalism is violated by an uneasy bourgeoisie, which becomes authoritarian and intolerant of dissent, so the proletariat probes the defences of the labour contract by reducing the quality of work to match the level of one’s pay.

Sentencing

The five defendants will be sentenced at Wolverhampton Crown Court on Monday June 26 at about 10am. I will be there to protest, to bear witness and hopefully report on the events.

We need to draw a distinction between direct action which undermines the interests of workers and that which is squarely directed at the actions of the ruling class. The case of the Shenstone Six is that of the latter. We also need to engage with organisations whose tactics we might be critical of, but whose aims we may support in a qualified way.

The means by which the proletariat realises its historical mission will probably continue to surprise the most advanced cadres of any organisation l