24.09.2003

The war and the law

Could the invasion of Iraq have been prevented by forcing the US and UK to adhere to 'international law' or observe the United Nations charter? Such an approach conceals a trap, argues Mike Macnair

"B is charged with murder. He organised a drive-by shooting in which members of B’s gang fired machine-guns aimed at S, the leader of a rival gang, into a crowd including S and members of his gang, as well as numerous innocent bystanders. Several members of S’s gang were killed, as were many bystanders, but S escaped and has gone into hiding. In his defence B proposes to argue that (1) B and his accomplices acted in self-defence, as S was waving a papier-mâché model axe and they knew that S had previously committed axe murders against members of his gang and others; and/or (2) B and his accomplices acted lawfully in execution of a public duty, as there was a warrant extant to search S’s house for offensive weapons; and/or (3) B and his accomplices acted to prevent crimes which S would otherwise have committed against his associates and the bystanders. Discuss."

This puts the government’s and its supporters’ arguments for the legality of the invasion of Iraq into the form of an examination question in English criminal law. It is not a very good exam question, because it is not difficult enough: it would not take a court or jury (or a law student) long to convict our fictitious B.

International law is, of course, not the same as English criminal law: states in general stand in the role of individuals, and since there are no ‘international police’, the rights of self-defence, and so on, are more extensive. However, waging aggressive war against other states has something of the same status as murder in English law. The Nazi leaders were prosecuted at Nuremberg, among other charges, for “launching an aggressive war”; and under the United Nations charter, “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations” (chapter 1, article 6).

In response to arguments that their action was illegal in international law, Bush and Blair have argued (1) that they acted in self-defence - either (a) because the Iraqi Ba’athist regime was linked to al Qa’eda, or (b) because the regime’s “weapons of mass destruction” were an immediate threat to the US or UK or US-UK allies; (2) that they were merely enforcing existing UN security council resolutions in relation to Iraqi disarmament, though the security council had not at this stage backed the use of military force; and (3) that in any case the intervention was necessary to protect the ‘human rights’ of Iraqis, which the regime violated.

Even in international law, the arguments of the US-UK coalition in defence of their aggressive war on Iraq were widely regarded as very weak, and they have been further weakened by the failure to discover ‘weapons of mass destruction’ and by the continuing violations of ‘human rights’ under the US-UK occupation of Iraq. It is therefore understandable that anti-war activists and leaders have been inclined to place a strong emphasis in their arguments on the illegality of the invasion and that various schemes for ‘bringing Blair to justice’ have been proposed.

This is understandable, but it is also a political trap, which will ultimately undermine the struggle against the ‘war on terror’, and has to some extent already done so. This article aims to explain why.

Fighting the war

Anti-war activists can fairly say that at least we have made the moral gesture of standing up to be counted against the USA’s programme of aggression and the UK’s participation in it. But this is hardly enough. We need to address the question of how to stop the war drive. It should be transparent that raising arguments of international law will not in itself do so. For Blair to be prosecuted as a war criminal is a pipe dream: the war crimes legislation requires the consent of the attorney general, a member of the government, before any prosecution can take place. Moreover, the US-UK coalition has already gone ahead with the invasion of Iraq against the majority opinion of the UN security council. The law in itself has not deterred them.

For some activists arguments of international law are employed to support the use of individual or small-group non-violent direct action (NVDA) to interfere with military supplies and organisation and thereby stop the war. Supporters of this strategy point to the role of NVDA in the movement in the USA against the Vietnam war. They ignore the special features of the Vietnam war (see Weekly Worker April 17) and pass over in silence the complete ineffectiveness of NVDA in the nuclear disarmament movement and various other campaigns directed at ‘hard targets’. What is actually needed is a mass movement on a scale which in itself threatens the political stability of the government, and which reaches into the armed forces and persuades soldiers, sailors and aircrew that it is necessary to resist the war drive. We are a long way from this goal.

The illegality of the war is said to be a tool of persuasion in building a mass movement. As such it is, however, the sort of knife which can all too easily turn in your hand and cut you. Just to give a couple of immediate examples. The USA’s attack on the Taliban regime in Afghanistan was part of the global war drive, and its results have been - predictably - to add further destruction to the preservation of warlordism in that country. The USA has in the course of the war committed war crimes, in the form of breaches of the Geneva Convention on prisoners of war. But the war itself was not illegal, since the Taliban sponsored al Qa’eda (or perhaps the other way round), so that the US had a defensible claim of self-defence.

Even if the invasion of Iraq was illegal, its occupation has now been authorised by the security council and is therefore legal in international law. And if, in a few months’ time, the USA turns its military attentions to Iran or North Korea, it will probably do so with the backing of International Atomic Energy Agency inspection reports and with a security council majority, and thus legally. Yet the results - death and destruction - will be the same as the (illegal) invasion of Iraq ... By arguing against this invasion on the grounds of its illegality, we hand a weapon to the warmongers which has been and will be used in other invasions.

Why the war drive?

Placing Iraq in the context of the general US-led war drive of course raises the question: why is this war drive taking place? Few people, even supporters of the invasion of Iraq, are now so naive as to suppose that the US’s aims were to ‘enforce international law’ against the Ba’athist regime or to ‘introduce democracy’ in Iraq.

A fairly widespread view is that the current US administration has been captured by a neo-conservative ‘lunatic fringe’ group of the far right which has the utopian aim of making over the world in the American image, or a group with specific corrupt links to the US oil and construction industries which expect to benefit from the seizure of Iraq’s oil resources. There are two difficulties with this view. The first is that for Bush to win the presidential election - even by ballot-rigging - his team needed much stronger financial backing from US capitalists than the lunatic fringe or the oil and construction sectors alone could provide. The second is that the plans for the attack on Afghanistan were made by the Clinton administration and merely dusted off by the Bush administration after 9/11, and this administration also operated the sanctions against Iraq which prepared the way for the invasion, and engaged in a variety of other ‘bomb the bastards’ operations, the largest being in the former Yugoslavia. In fact, destructive military interventions which leave behind chaos have been the common coin of US policy since Lebanon in the 1970s.

A view widespread among muslims is that the attack on Iraq was motivated by the defence of the Zionist regime in Israel. Since, first, Israel is a (substantial) nuclear power, second, the USA already provides sufficient military and economic support to secure Israel against almost any conceivable conventional attack and, third, the Ba’athist regime was crippled by sanctions and nowhere near getting the bomb, this view is even more implausible than the first. It displays an anti-semitic assumption that the Israeli tail somehow wags the Yankee dog. The Zionist regime is certainly keen to link the Palestinian resistance to ‘terrorism’ and thus help keep the USA onside, but it is US interests which sent US (and British) troops into Iraq.

More plausible arguments have linked the war drive to the strategic economic interests of the USA and the economic interests of US capital generally. A widely held view is that the invasion of Iraq is a ‘grab for oil’ to keep oil prices down. This seems unlikely, since the best way to achieve this result would have been to do a deal with the Ba’athist regime and lift sanctions. A more sophisticated version sees the USA attempting to gain strategic control of oil supplies, in order at some future date to be able to strangle actual or potential economic competitors in the far east and Europe. The war in Afghanistan can then be seen as ‘pre-positioning’ for a US takeover of central Asian oil resources: a view confirmed by the movement of US forces into several bases in central Asia in connection with these wars.

Beyond these theories, Andre Gunder Frank has suggested that it is not a coincidence that the ‘axis of evil’ countries named by Bush as targets are all ones which had started to use the euro rather than the dollar to denominate international contracts (‘Paper tiger, fiery dragon’, http://rrojasdatabank.info/agfrank/paper_tiger.html), and Peter Gowan’s The global gamble (1999) explained the 1991 Gulf War, and much else, in terms of the USA’s manipulation of the dollar-led global money regime as a defence against its competitors.

A significantly different approach has been offered by Hillel Ticktin (see Weekly Worker August 28) and Wadi’h Halabi (in the US Communist Party’s People’s Weekly World August 2). These authors have linked the war drive to the deep structural economic difficulties of world and US capitalism and their immediate manifestations in the run-up to the war. Thus Gunder Frank and Gowan see the dynamics in terms of the relative decline of US capital as a world hegemon since the 1970s; Ticktin and Halabi see a crisis of capitalism as such and the systems of rule it has operated since 1945.

A ‘law-governed’ system of international relations?

If - in whatever way - the US-led ‘war against terrorism’ is driven by the economic interests of US capital, the strategic problem of stopping the war drive becomes united with the problems addressed by the anti-capitalist/anti-globalisation movement: the problem of world order in the 21st century. And it is here that international law comes back into the picture, as the symbol of a certain sort of strategy for dealing with these problems. Gowan lays out the basic point very clearly in his April 2002 interview in the Fourth International’s magazine International Viewpoint:

“The US concept since the Gulf War of 1991 has been of a globe with an American ‘sovereign’, … it alone can tell us who the enemies of the world are - Saddam Hussein, Milosevic, the Taliban government, Iran and so on. It alone can tell us what is a global emergency and what is not … and it can lay down the rules which others must follow without being bound by those rules itself.

“Against this US conception, there are two other main ideas about how world capitalism should be managed. The Europeans put forward the world order concept of ‘multilateralism’, the rule of the ‘international community’ … The US should be in some way subordinate to the G7, thematised as ‘the international community’. That’s why Condoleeza Rice, presidential security advisor, says, ‘There’s no such thing as an international community.’

“There is a third conception, that of the UN security council and UN charter as the determiners of world order … That conception of world order should not be discounted, because it not only enjoys support from states, but is also anchored in the consciousness of billions of people. I would say that in a certain way you can see the power and persistence of this concept in the capacity of the Palestinian Intifada.”

Gowan evidently supports this “third conception” (“Only the UN idea of the nations of the world actually uniting … could give us a really authoritative body for ‘laying down the law’ internationally. In such a body the left should accept the official representatives of states.”) So, too, does the Morning Star’s Communist Party of Britain. The ‘peace and justice’ project, now seemingly aborted, was conceived within the same general framework. But is this framework any use?

The underlying problem with the strategy of a ‘law-governed world order’ based on the UN charter is that it fundamentally misunderstands the nature of law as a social institution and, as a result, of international law. In the result it is merely yet another social democratic utopia, this time on an international scale, which attempts to win reforms without confronting the power of capital.

Is ‘international law’ law?

There is a traditional view - among conservative as well as liberal and left legal theorists - that ‘international law’ is not really law at all. This view goes back to John Austin’s The province of jurisprudence determined (1832), where it is argued that there is no ‘sovereign’ - ie, world state - enforcing power. An alternative approach is that it is not law because it lacks underlying political support among the subject population (‘legitimacy’). This view is taken (of current international law) by Gowan: “… international law … is nothing other than the past codified policy of the dominant capitalist states. It has no popular democratic source of legitimacy whatever.” If international law is ‘not really law’, that would provide us with a very short answer to the project of a ‘law-governed world order’.

In reality, law needs neither a state nor ‘legitimacy’ among the subject population to exist and be effective. International law is not the only example of a non-state legal system: various forms of religious law - jewish law, islamic sharia, hindu law, and so on - exist today and have done for centuries without state backing; medieval Welsh and Irish (Brehon) law were non-state systems; in medieval and early modern Europe traders had their own body of law, the lex mercatoria or law merchant. As to ‘legitimacy’, the historical frequency of the imposition of legal systems by conquest (as variants of English and French law were imposed on much of the world) should give the lie to the claim that law as such needs ‘legitimacy’ among the subject population.

Basics of law

To understand what law does need in order to exist and be effective, the necessary starting point is to distinguish law from other related phenomena.

In the first place, law is not simply ‘binding rules’. A railway timetable is a system of ‘binding rules’, but it would be silly to regard it as law. Law, in contrast, is a system of ideas (including rules, but also more abstract concepts like ‘justice’) used in decision-making in adjudication: ie, settling disputes in some court or court-like body. Adjudication involves a claimant or prosecutor bringing a demand or complaint against a defendant before a neutral third party, the judge, who is expected to decide who is in the right - as opposed to, for example, helping negotiate a solution (mediation). The judge may be a state official, but may also be an ‘arbitrator’ agreed by the claimant and defendant to resolve their dispute. Arbitration was the normal context of international law before the 1922 creation of the League of Nations’ Permanent Court of International Justice, now the International Court of Justice. But an arbitrator is still a kind of adjudicator.

Secondly, not all adjudication is on the basis of law. As common in history, and still found in the present day, is adjudication on the basis of currently applicable custom and practice. But custom and practice is not law: it lacks the stability and determinacy of legal rules. Where a legal system exists, the distinction is practically important. Buying your round in England or offering dowry on the marriage of a daughter in much of India are socially binding customs, but not legal requirements. Passing the joint in England, and suttee (the ritual sacrifice of widows at their deceased husband’s funeral) are also seen as socially binding customs by sections of English and Indian society; both are positively illegal.

For a legal system to exist as distinct from custom there have to be lawyers, a group of professional specialists (judges, advocates or teachers) who monopolise the interpretation of the law; and there have to be authoritative written sources, like the Roman ‘12 tables’, the Jewish Torah, the Islamic Quran, or the medieval English Register of Writs, on the basis of which these professionals do their interpretation. In international law there is a body of specialist ‘international lawyers’ who overlap with diplomats and legal academics. The written sources are primarily treaties, but also ‘customary law’, which is, as Gowan says, “the past codified policy of the dominant ... states”, but as mediated through the interpretations of the international lawyers, primarily through treatises on international law.

Behind the basics

Adjudication is a peculiar way of making decisions. Unlike negotiation and mediation, it makes ‘winners’ and ‘losers’. Unlike community political decision-making, the only people represented are the immediate parties: the workers thrown out of work if a company is bankrupted in litigation have no voice. It looks backwards, to the rights of the parties, not forwards to find the best answer to the problem. Why do societies do it? When we add lawyers and law sources, the problem becomes more acute. Lawyers are notoriously expensive, obscure and troublesome: this has been a common theme of satire since Roman times. Moreover, not all historical societies do use law and few - most notably the later Roman empire - have been as ‘law-saturated’ and obsessed with law as the late 20th and early 21st century world.

To start with adjudication: it seems that adjudication as a mode of decision-making presupposes and is adapted to disputes about private property. The ‘justice’ which a judge or arbitrator is to deliver is at its core the restoration of prior ownership, or compensation for the loss of ownership. From this core, which appears at the heart of early legal systems, law is extended by analogy: a crime is a ‘taking from the state’ or a ‘taking from the society’; jurisdiction, or decision-making power, is treated as a kind of property right. But the sanctity of property remains the core basis of legal reasoning.

It is this basis which enables adjudication to look backwards to rights, and thereby reach a decision rather than a compromise, and to reduce the people entitled to a hearing to the claimant (from whom something has been taken) and the defendant (who allegedly has taken it or possesses it). As a result, the judges themselves recognise that some issues are ‘non-justiciable’ because of the involvement of forward-looking policy and multiple parties: thus, for example, the English rule in Foss v Harbottle (1844), still in force, says in effect that the court will not generally investigate the merits of decisions of company policy reached by a majority of the shareholders.

The passage from custom and lay adjudication to law and lawyers is more complex. In substance, the people who promote it are seeking more predictability of the judicial decision than lay adjudication on the basis of custom can offer. The fundamental demand for law in this sense - and the demand which continues to this day to be the real economic basis of legal professions - is from ruling classes, in the narrow sense of elite groups who have individual or family private property in segments of the means of production (as opposed to state bureaucratic elites): slave-owners, feudal lords, capitalists.

Their demand for law and lawyers comes from their disputes among themselves about ownership. It comes from their need for complex ‘estate planning’ arrangements to secure income from the exploitation of property rights (tenancies, mortgages), to transmit wealth between generations (wills, trusts and settlements), and to minimise their tax liabilities. These needs demand more certainty than custom can provide. As a result, these areas of law remain far more developed in all historical legal systems even today than, for example, the law relating to personal injuries.

The price of law

The price of law should now be visible. The sanctity of property at the base of the value of justice and the idea of adjudication carries with it practical inequality: in Anatole France’s phrase, “The law in its majestic equality forbids the rich as well as the poor to beg, to steal, and to sleep under bridges.” The sanctity of private property is embedded in every ‘human rights’ document, from the English Petition of Right (1627) through to the Charter of rights in the draft constitution of the European Union. It is reflected in constitutional prohibitions on expropriation and in ‘restrictive construction’ in favour of the property owner of tax laws, laws controlling property use, and so on. The role of lawyers in the construction of certainty inexorably carries with both ‘tax avoidance’ and ‘regulatory failure’: ie, the use of the requirement of predictability to undermine for the benefit of the rich the effect of rules made by parliaments. It carries with it ‘inequality of arms’: ie, that the rich can afford more and better legal services than the poor. These phenomena are commonly attributed to judicial bias: the truth is that the biases are inherent in the idea and practice of law itself.

The ‘rule of law’, ‘human rights’ and a ‘law-governed world order’

It should be apparent on the basis of this analysis that ‘the rule of law’ is under present conditions a euphemism for the dictatorship of the bourgeoisie. The doctrine converts all questions of political order into variants on the sanctity of property, and renders all forms of regulation subject to the activities of the corporations’ lawyers. By placing the sanctity of property, increasingly widely interpreted, out of political bounds, the ‘rule of law’ and ‘human rights’ doctrine sets up the law in opposition to political democracy. ‘Democracy’ is reduced to the occasional choice of which bunch of political managers - Tory-Tory or Labour-Tory, Republican-Republican or Democrat-Republican - the capitalists are to employ.

If this is true on a national scale, it is all the more so on a world scale. At Cancun some ‘third world’ states have finally rebelled against the endless demands that the semi-colonial countries give legally enforceable rights to the imperialists’ corporations, while getting nothing in relation to the imperialist countries’ protection systems. But this imperialist World Trade Organisation ratchet was merely the natural result of the project of a law-governed world order, with its inherent commitment to the sanctity of property - that is, the sanctity of existing vested rights - which overwhelmingly means the rights of the imperialists’ corporations to ‘their’ debt claims, ‘their’ ‘intellectual property rights’ and ‘their’ ‘freedom to invest’: ie, right to buy up, asset-strip and close down factories, etc. A ‘law-governed world order’ is not an alternative to US world domination; it is another ideological form of US world domination.

... and the war drive

It is precisely out of this world order that the US-led war drive has emerged. It is the sanctity of property, expressed in the aggressive promotion of the ‘rule of law’, which has enabled the present utter corruption of the US political system, its subordination to corporations and the super-rich. It is the inability of the capitalist world order led by the USA to deflect its internal contradictions without war which has produced the war drive: this is still true whether we see the US as playing for strategic gain, in oil or in the monetary system, against potential competitors, or as responding to a deeper crisis of the military-industrial-financial complex.

Hence, in order to begin to construct a strategy to end the war drive, as opposed to merely protesting against it, we need to break out of the mental iron cage of law-talk and rights-talk. Our starting point has to be the struggle - not for a world order governed by law, but for a world order governed by the class solidarity and common action of the global working class.