Kerbside International Lawyer

January 31, 2010 at 3:12 pm (anti-fascism, iraq war, Max Dunbar)

Yeah we know we can’t have a better world
But at least we can be right

The Indelicates, ‘The British Left in Wartime’

Following on from Comrade Denham’s post, I’ve been pondering one of the more confused of the antiwar arguments: the legality or otherwise of the Iraq war. The idea that the invasion was wrong because it was ‘illegal’ is frequently levelled, often by people who have a negligible understanding of international and war crimes law, and sometimes by people who belong to political groups dedicated to the armed overthrow of parliamentary democracy. If the war had been declared ‘legal’; if some attorney general had said, ‘Yes, this is okay, go for it’ would the antiwar faction have turned round, admitted fault and supported the war? If we’re going to talk legality, surely war is a crime in and of itself.

But the charge of illegality serves one purpose – to turn an argument about human rights, democracy and the responsibility to protect into an argument about boxes checked, hoops jumped and resolutions passed. It allows you to sidestep the complex issues of solidarity and internationalism and to retreat into a position of abstract judgement. But it can also make you look incredibly silly, as George Monbiot is finding out with his ludicrous ‘Arrest Blair’ campaign, the object being to make a citizen’s arrest of Tony Blair for war crimes. (Why does no one try to citizen-arrest Omar al-Bashir or Mahmoud Ahmadinejad?) Unfortunately the law is a double-edged sword and Norman Geras has passed on words of caution from a legal professor:

What Monbiot is urging would still be a tort. Even though he is not suggesting imprisoning Blair, what he is suggesting would be a tortious battery, as it is an intentional unauthorised touching without consent. (In many day-to-day touchings – e.g. tapping someone on the shoulder to get their attention – there is implicit consent, but not with regard to what Monbiot suggests, as Blair would obviously not consent to it.)

Amusingly, if someone did act in this way as a result of Monbiot’s urgings, Monbiot would also be liable, as he would have procured the wrong and the wrongdoer’s actions would also be attributed to him. I would suggest, as well, that his employer, the Guardian, would be vicariously liable for Monbiot’s wrongdoing.

For the record, I do think there is a case for trying people in the Blair and Bush administrations for war crimes, but it would rest on the complicity in the torture of detainees, rather than the facilitation of a war that, despite everything, got rid of one of the worst fascist dictatorships on the face of the planet, and gave Iraqis the right to vote and hope for better times.

The antiwar faction is currently trying to turn Chilcott into a show trial – it will not happen. Blair is too clever and confident to let this happen. And yet the antiwar movement has won the argument. Liberal interventionism is discredited. It is dead. Pacifists are right to claim that the general public is against going to war. This is not so much out of concern for the welfare of soldiers and civilians, but from a resentful feeling that money should not be spent on foreigners when there are troubles enough at home. (I’ve heard people explain their opposition to government aid for Haiti in these exact terms.)

I repeat, Seamus Milne, George Galloway, Noam Chomsky and all the other isolationists and doctrinaire pacifists have won this argument. There is neither the cash nor the political will nor would there be the public support for an attack on Iran or Sudan, no matter how many times John Pilger says it’s going to happen. R2P is fucked. Leaders of fascist states all over the world can breathe easy in the knowledge that they can do anything they like to people – absolutely anything – as long as they keep it within their borders.


  1. neprimerimye said,

    This post would appear to accept the bourgeois argument that capitalist states have an historically progressive role to play, if only in certain cases, and therefore their invasion of other states can be endorsed by socialists. From the viewpoint of revolutionary socialism – which argues that on a world scale bourgeois society has long since become decadent – this is unacceptable.

    Moreoever it removes any progressive role from the peoples of those countries invaded by the imperial powers and their lesser partners in crime. For the very good reason that it is argued that the salvation of the countries in question can be left in the hands of imperialism and the people themselves need not stir a hand in their own defence.

    It also serves to disarm workers and socialists in the imperialist states who may draw similar conclusions with regard to their own rulers. In practice then the class nature of the state is erased for the author of the blogpost that stands above this comment.

  2. resistor said,

    More from the house band of the pro-war, pro-imperialist, phony-left.

    I give you the pretentious, absurd and deeply stupid ‘The Indelicates’!

    ‘The pop stars who write operas and make fatuous remarks
    The theory-quoting upstarts who smoke fairtrade coke in parks
    I find myself a loner and I find myself bereft
    I find myself agreeing with Bill O’Reilly more than the left

    When they pin me to the wall, I’ll say
    I’m with America
    With godless America
    I’ll stand and I’ll fall
    Though it cuts me to my soul that it must be America
    It must be America
    Or nothing at all’

    In their naivete – ‘godless America’ where’s that? – The Indelicates have summed up the mindset of Denham and Dunbar (aka Dumb and Dumber)

  3. maxdunbar said,

    I never thought I would see Resistor providing the blog with cultural criticism!

  4. Wot Evah said,

    “Liberal interventionism is discredited. It is dead.”

    How tragic – no repeats of the Iraq and Afghan success stories then! Still Max, why not make the most of it and book a holiday in liberated Iraq while you still can? I hear Baghdad is lovely this time of the year.

  5. Voltaire's Priest said,

    Methinks you’d have to be pretty naive to think that the wars in Iraq and Afghanistan were primarily motivated by concern for the human rights of the civilians in those countries, or even an urge to set up what we would understand by bourgeois democracy. The Bush administration, by the time of the invasion, was driven by all sorts of imperatives ranging from lobbying pressure to neocon “pax americana” ideas. Blair was quite happy to go along with this.

    There have in fact been human rights violations going on in rather a lot of countries worldwide since before the Afghan war began, about which the western states have done precisely nothing in military terms. Of course, those countries are of less strategic interest (or are allies of the USA/UK) so they have been ignored. Some fascists have been safe all along, and if you think that those invasions were “anti-fascist” then you’re very much mistaken.

  6. maxdunbar said,

    Fair point, but in foreign policy it’s actions and outcomes than count, more than motivations

  7. voltairespriest said,

    Fair ’nuff – well then in Afghanistan there is an ongoing conflict and an administration packed with reactionaries and crooks led by a crook, and in Iraq there is a Dawa-led administration that is currently tail-ending Ahmed Chalabi in debarring candidates from elections on the grounds of “de-Baathification” or whatever they call it.

  8. Wot Evah said,

    Not to mention the dispacement (internal and external) of more than four million Iraqis, creating the biggest refugee crisis in the world. Honestly, with humanitarian intervention like that – who needs suffering? And that Max, is why motivations matter – one’s motivations will impact on the means one deploys to achieve them, which will in turn condition outcomes. Put another way – a racketeers ‘security staff’ might, on occasion, prevent violence in a nightclub, but we shouldn’t be suprised when they kick the clubowner’s head in because he can’t afford their extortions.

    Shorter version – don’t put your faith in gangsters.

  9. Red Maria said,

    At some point there ought to be a mention of Aquinas and Just War theory, especially if we’re considering the morality or otherwise of the Iraq Adventure. Aquinas’ theory is widely accepted by non-religious philosophers such as Singer and I’ll come back to him in a moment.

    I think it’s obvious that the Iraq War fails the conditions laid down by Aquinas for a Just War. There wasn’t any semblance of proportionality about it; neither was there a “just cause” – the causes weren’t even admitted to – it certainly wasn’t a war of last resort and neither were law and order restored by the invasion, quite the contrary in fact.

    Singer’s quite interesting on this and I recommend that people read his book, The President of Good and Evil, in which he produces a lacerating demolition of the justification for the war in Afghanistan. But to save you time his conclusion is this: it again does not meet the conditions of a Just War.

  10. neprimerimye said,

    Good old Aquinas. For him the war of Independence of the 13 American colonies could not be a ‘Just war’ as they did not constitute a legitimate state. And so too all other wars of national liberation. What utter garbage.

    And what a solid foundation for the myth of impartial jurisprudence. Lawyers with a few notable excpetions, are for hire like the whores they are.

  11. maxdunbar said,

    I didn’t say things were ideal. I said there was hope: which there would not have been under the Ba’ath.

    I wrote about Afghanistan here:

  12. Simon Indelicate said,

    Enjoyed reading this post, and thanks for the link.

    Resistor, I have made a personal covenant with myself not to chase you around the internet responding to your angry quoting of my frivoulous pop song on political blogs – but still:

    > ‘Godless America’ – where’s that?

    I don’t know if you’ve met an American, but a growing number of them identify themselves as atheists. Certainly Sam Harris and Dan Dennett did when writing ‘The End Of Faith’ and ‘Breaking the Spell’ – two foundational texts for the recent ‘new atheism’ movement. This seems appropriate given the first amendment to the US constitution which prohibits the establishment of religion and defines the institutional makeup of America as legally Godless.

    I use the term in the lyric that you reproduce in order to make a distinction between the America that is and the America that is aspired to in its founding documents. This usage contributes to the pop song’s argument (such as it is, given the form) that, despite the many excesses, failures and even outrages of American foreign policy – I would, when pressed, pick their system over the alternatives currently presented by the world. I am careful to point out the marginal nature of this choice – even going so far as to (perhaps absurdly) claim that it ‘cuts me to my soul’ – but I don’t think the point is particularly absurd, pretentious or stupid – even if you happen to disagree with it.

    I do, however, concede that you are justified in taking offence at the stuff about Bill O’Reilly and theory-quoting upstarts as it is pretty squarely aimed at the stereotype you seem so keen to live down to.

    Simon Indelicate

  13. charliethechulo said,

    Good letter in the ‘Graun’ on 28 Jan, from one Andrew Phillips. It effectively skewers the legalistic /”UN resolution”-type anti-war argument that’s long been used by the leadership of the ‘Stop The War Coaltion’ (despite the fact that in their private politics they consider themselves revolutionary socialists):

    “George Monbiot’s proposal that we should all contribute to his fund to arrest Tony Blair for the ‘illegal’ invasion of Iraq is worrying (Wanted: Tony Blair for war crimes. Arrest him and claim your reward, 25 January). It suggests that the policies and decisions taken by the cabinet of this country should be dictated by the interpretation of international law by a lawyer.

    “Over 200 years ago, this country took the unilateral decision to take on and destroy the international slave trade. Not only was this undoubtably illegal as far as many of our enemies and allies were concerned, it was expensive as well. No doubt there was much disagreement and opposition in Britain to this decision. Thousands of slaves also died in the process, through friendly fire and through being thrown overboard when slavers spotted British warships approaching. History says that Britain did the right thing, although many of those slaves killed in the process might have preferred life as a slave to death by drowning.

    “This is not to say that history will view the Iraq invasion in the same light. But to suggest that we should go around making citizen’s arrests of a former prime minister of our country on the grounds of a lawyer’s opinion which happens to support our own view strikes me as appalling for our democracy. We elect people, trust them to do their job, and vote them out if we don’t like what they’ve done. We don’t arrest them.”

    Btw: I *don’t* agree with Mr Phillips’ closing sentences about “our” democracy. But his points about the illegal, unilateral, expensive and even cruel (to individual slaves) decision by Britain to abolish the slave trade, seems to me to be a devastating rebuke to the mainstream anti-war arguments put forward by German, Rees, Galloway, etc, etc.

    There are, of course, other – better – arguments that can be used.

  14. skidmarx said,

    13. I think this is specious. There was no agreed framework of international law when it came to the slave trade, so while Britain’s enemies and allies may have disagreed with its actions, they weren’t illegal in their own terms.

  15. charliethechulo said,

    This, from George Szirtes, is worth reading:
    H/t: Bob From Brockley

  16. skidmarx said,

    15. Though it’s rubbish:
    , this is not very much to do with caring for the war dead of Iraq – after all there are plenty of war dead in the world to care about,
    Nobody could be concerned about the Iraqi dead because there are other wars? Give me a break.
    I remember the early Lancet report that claimed 600,000 people had died in the war – a figure that the latest count estimates as 91,000-110,000 or so, most of them not killed by the US-UK troops. Still a vast number. But the clear implication was – and continues to be – that it was Tony Blair who was personally responsible for those 600,000 deaths.
    Along with Bush, he started the war. So he is responsible. And that’s not counting the deaths from sanctions.
    I was dubious about the question of illegality. After all, the war was primarily opposed by France and Russia, by far the two major exporters of arms to Iraq
    The motives of the French and Russians don’t have any bearing on the question of illegality.
    Once the war started I supported it. Not because I support the deaths of a lot of people, but because my gut feeling is that war is war, has always been war, and that once it starts it is better to support what you consider to be the better cause.
    No comment necessary.

  17. charliethechulo said,

    Skidders: “so while Britain’s enemies and allies may have disagreed with its actions, they weren’t illegal in their own terms”. Skidders: there is no question that other nations called Britian’s decision “Illegal”: but would that effect your attitude to the decision to ban the slave trade, one way or the other?

    Does “legality” matter to socalists? This doesn’t decide the Iraq question, but it *is* important in deciding how socialists should approach such matters.

  18. maxdunbar said,


    That is the heart of it.

    We should know by now that legality isn’t the same as morality.

  19. skidmarx said,

    charliethechulo – there is a question of whether Britain was then operating in a general system of international law rather than one only defined by Treaties, no it wouldn’t affect my attitude.
    Legality matters to different socialists differently? Obviously there are elements of capitalist law that few of us would respect, and many would reject its authority in general terms. Which makes it a little difficult not to be a hypocrite when making the case for TB to be prosecuted as a war criminal, but not impossible, as all that is being done is to ask for the law to live up to the standard set for itself.

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