Kerbside International Lawyer

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.