Tuesday evening, London
Today Tony Blair side-stepped the challenge at question time in the House
of Commons with the strong-sounding but actually ambiguous statement that
what the British forces in the Middle East would do, would be legal.
Likewise the Bush administration affirmed they would make a substantial
contribution.
BUT yesterday the British Government's legal advisor, the Attorney
General, Lord Goldsmith, spent much of the afternoon at 10 Downing Street
when Tony Blair was there. Today the British government claimed such
advice is never made public. But the leader of the peace party, Charles
Kennedy, is putting a letter in writing asking for the legal advice to be
made public.
Because by an accident of timing, or the onward march of world history,
the International Court of Justice has just opened at the Hague, and
Britain, unlike the US, is fully signed up to it. One of the principles
is that subordinates as well as leaders may be tried. British Tommies
could be guilty of war crimes, if they fireball Iraqi troops without
lawful justification. Unfair isn't it?
Is these legal niceties trivial? The existence of bodies of armed men is
central to the role of the state. The structure of law which regulates
and gives role to these armed men is also central. It must appear to
stand on the basis of a justice that is accepted as transcending the
sectional interests within the state (including class of course,
expecially when somehow the state seems to assume the inevitability of
continued oppression and exploitation)
Without agreeing all aspects of Hardt and Negri's book on Empire, its
opening chapter appears relevant at this moment.
"The birth of the United Nations at the end of the Second World War
merely reinitiated, consolidated, and extended this developing
international juridical order that was first European but progressively
became global. The United Nations, in effect, can be regarded as the
culmination of this entire constituitive process, a culmination that both
reveals the limitations of the notion of international order and
points beyond it toward a new notion of global order."
The global aspirations of Tony Blair, both grandiose and masochistic at
the same time, require him and British officials to crucify themselves at
this moment in New York on this crux. They are running around
increasingly desperate, trying to engage countries like Angola who are
temporarily flattered into thinking they might be decisive, with formulas
that at present they can circulate only in the name of the United
Kingdom. While the overwhelmingly biggest nation on the block makes clear
it appreciates this and other initiatives very much but is quite happy to
go it alone without UN backing, thank you very much.
The admirable BBC 2 Newsnight programme (available on the web) has
just reported on the basis of sources "close to" the Attorney
General - a formula usually understood to include the person in question.
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The Attorney General might just possibly not have given a definitive
opinion but might have gone through the arguments for and against. The
Attorney General might have indicated the need for significant caution,
but at the end of the day, the client, Tony Blair could say, thank you
very much for the advice. And still go to war.
At lunch time today lawyers for the peace movement noted that the
Attorney General could be in a position of having to resign. But just at
the moment Blair is avoiding any talk about resignations by retaining in
his cabinet Claire Short despite her having said three times on Sunday
that he is reckless.
What of the legal arguments? The tide is running strongly against the
government.
1441 is difficult to use as the sole justification of war, not least
because the US ambassador in arguing for it in November said explicitly
that it implies no automaticity to war. So Jack Straw's claim today that
it is sufficent justification looks weak and contradictory, if the Brits
are still humiliating themselves desperate for a second UN resolution.
Even if they get a bare majority Blair's notion that he could ignore a
veto which he happened to think is unreasonable would have no basis in
international law, even if he thinks it would win allies in the court of
world opinion.
However to attempt to get another resolution and to fail, could
subsequently make the aggressor's legal position even weaker than it
would otherwise have been.
So lawyers sympathetic to the British government suggest that 1441 may
not be sufficient on its own BUT there are other UN SC resolutions such
as 678 and 687 which refer to things like using all necessary means to
ensure peace and international security in the area, and
disarmament.
However the peace lawyers point out that these were passed in the context
of Iraq's invasion of Kuwait and do not continue to stand for more than
10 years as enduring statutes of an international legislature justifying
war under all circumstances.
One of the most authoritative critics of the British government's
threadbare legal position is Vaughan Lowe, professor of international law
at Oxford. Although he thinks it is improbable, he said, (???) that the
UK government would appear before the new International Court of Justice,
he noted how very carefully governments may be wise to record the
justification for their actions these days. For example in the case of
the Kosova war, which was done outside the United Nations, the British
Government carefully recorded its view that the overwhelming humanitarian
justification for the war was that hundreds of thousands of people were
being driven from their homes and murdered (his paraphrase).
So who can be sure where this will all end up? Poor General Pinochet did
not expect to be put under house arrest for years when he came to
convalesce in a London hotel while awaiting medical treatment. Blair's
grandiosity may have a masochistic streak and he is a verbally skilled
lawyer, but he is well aware that case law can take different directions
according to the legal expert in court at the time. Put on trial himself
he might not necessarily get off.
And in current English case law there is increasing emphasis on the idea
that while force may sometimes be lawful it must be proportionate only to
the need. (A farmer got put in prison after killing a thief.) This may
not worry the lynch posse unilateralists around Bush, but it just might
make it wiser for Britain to contribute its peace keeping troops rather
than its combat troops when it comes to the outbreak of war.
Another question which Blair did not get pinned down on today, but which
is latent.
Why all this muddle? The weakness in Blair's idealistic vision of world
governance with him as president of a multilateral world, Gordon Brown
fully occupied as chair of a liberal International Monetary Fund,
and Alistair Campbell in charge of world communications, is that it will
not come about as a result of a smooth and steady evolution in the
direction of progress. It will come about because of and through the
class of contradictions and not despite them. And with different persons
as the human containers of world history.
This is a formative legal crisis, and it is close to stripping the US of
any long term possibility of willing aggressive allies except when the
war is sanctioned explicitly by the United Nations. Blair's brief
contribution to the development of world history may be to sacrifice
himself on the crux of this contradiction.
Chris Burford
London
