The law is an ass

The trial and subsequent incaceration of RAF Doctor Flight Lieutenant Malcolm Kendall-Smith seems to have generated some confusion among many anti-war commentators. This seems to stem primarily from a few basic misconceptions about international law. Now, I don't want to pretend to be an expert on this, although I did study one module on the subject and happen to think I didn't do too badly in it thank you very much. Based on this foundation - which shaky though it is gives me an advantage over many of my fellow activists - lets consider some of the salient points.

Firstly, it's worth pointing out that international law isn't very much like normal, domestic, national law. The most obvious difference being that while the latter draws its authority from a single sovereign, namely the State (in whatever form that may take), the former operates in a system of interacting sovereigns, without any overarching power. Sure, the UN might see itself filling that role and it does talk the talk at times, but it falls far short of the omnipotence of the state. Some have argued on this basis that international law is not law at all, but that's a discussion for another blog on another day. Let us proceed on the assumption that it is a form of law, albeit a heterodox one.

With good reason there has been extensive discussion about the legality of the invasion of Iraq. Many commentators have argued that there was no legal basis for the war and one of my lecturers suggested that this was the overwhelming opinion amongst international legal scholars with perhaps 9 out of 10 holding the view. It is clearly somewhat beyond my means to evaluate the accuracy of this estimate, but there is no question that there were many highly respected scholars who considered the invasion illegal.

Even the government's Attorney-General Lord Goldsmith expressed reservations about the legality of the conflict in a secret memo, although as you may recall these mysteriously disappeared from the summary he released to Parliament in order to bolster the government's case for war. The basis of Goldsmith's concerns lay with his worry that previous UN Security Council resolutions (most crucially Resolution 1441) did not authorise military action given the current situation and that a further Security Council (which was unlikely to be forthcoming) was neccesary.

Security Council authorisation is crucial because the UN Charter forbids the use or threat of force (Article 2) except in cases of self defence (Article 51) or where the Security Council has given the go-ahead (Article 42). If 1441 didn't authorise force as activists, scholars and most of the countries who voted for it seemed to think then there was no legal basis for the invasion. Ergo: war crime.

In fact, some (not least yours truly) have alleged that the invasion was worse than that and actually constituted a war of agression. This stems from the fact - patently obvious at the time, despite the protestations of our leaders to the contrary - that Iraq posed no threat to the UK or US. Wars of agression are hardly triffling matters: this was one of the charges levelled at Nazi leaders at Nuremberg and the Tribunal averred, "To initiate a war of aggression, therefore, is not only an international crime. It is the supreme international crime differing from other war crimes only in that it contains within itself the accumulated evil of the whole," which seems pretty unambiguous.

Had Kendall-Smith decided to make his stand against the war prior to or during the invasion it appears he would have been on stronger ground, although it's worth noting that the presiding Judge Advocate Jack Baylis rejected the notion that a lowly Lieutenant could be complicit in the crime of agression. Kendall-Smith's real mistake, however, was to apply an essentially accurate analysis of the legality of the invasion to the wholly different legal context of the ongoing occupation.

When the dust of the invasion was just beginning to settle, the US and UK went back to the Security Council to get a resolution to legitimise. The various council members didn't want to miss out on a chance to get their chunk of the pie and happily provided them with not one, but a whole series which have been introduced over the past few years with every twist and turn of the occupiers' strategy (if such a grand appellation is appropriate). They have also been able to secure the consent of the government they helped to install and are probably the last line of defence for. Call it a sham if you want, but it's a legally water-tight one.

This doesn't mean that everything the occupiers do is legal. Quite the contrary. The various Security Council resolutions impose requirements on them as do the Geneva Conventions and the Hague regulations. There's considerable evidence that these have been breached on numerous occasions (Abu Ghraib being only the most highl profile example). Nevertheless, these breaches, crimes and attrocities don't impact on the legality of the occupation itself.

Not that any of this makes the occupation right. A UN fig leaf isn't going to count for a damn if the US decided to drop a bunker buster on an "insurgent stronghold" which happens to also be your house or if some trigger happy checkpoint guard blows your brains out because you don't respond to his arm signals with sufficient alacrity. Indeed, the imprimatur has not only done nothing to prevent the corporate carving up of Iraq, but has actually facilitated it. For consistent anti-war activists (as opposed to opportunists like the LibDems) legality or otherwise should be only a peripheral issue.

The invasion would have been wrong even with a blue globe stamped on its pimply arse. The occupation is wrong regardless of the presence of blue helmets and the odd white van. It follows therefore that Kendall-Smith deserves our support, bad legal advice or not. He is a model for what every man and woman in the British armed forces should be doing. It behooves us to encourage others to follow his lead, but you can start by signing the petition here.

File Under: Iraq, Law, News, War, UK