Jonathon Freedland's article The war's silver lining has resulted in some interesting discussion on Harry's Place.

In his article Freedland   (who is one of the Guardian's anti-war journalists) argues that "....the dark cloud of the war may have carried a silver lining"....

"....  "it seems, even indirectly to have triggered a series of potentially welcome side-effects"... (namely)  the ripple of change  now spreading through the Middle East, the slow, but noticeable movement towards democracy in a region where that commodity has long been in short supply"

 

".....we have to say that the call for freedom throughout the Arab and Muslim world is a sound and just one - even if it is a Bush slogan and arguably code for the installation of malleable regimes. Put starkly, we cannot let ourselves fall into the trap of opposing democracy in the Middle East simply because Bush and Blair are calling for it. Sometimes your enemy's enemy is not your friend."

 

The debate on Harry's Place began with various pseudo-left attempts to maintain their position on the grounds that   the war was unnecessary. If  the US aim had been to topple Saddam and free the Iraqi people then they could have achieved that without invading and occupying.

eg

 let's pretend that the whole thing was really about getting rid of Saddam but we'd like a non-violent means of doing so. Here's one, clear and unambigous:

 

In the final days before the invasion, when the US and UK were demanding that Saddam go into to exile to avoid a war they could have stuck by that. Instead, the US stated, on March 18th 2003, that US forces would enter Iraq 'no matter what' -even if Saddam went into exile, thus removing any incentive the Iraqis (be they the masses or a lone general with a pistol) had to get rid of Saddam in order to avoid an invasion (http://www.news24.com/News24/World/Iraq/0,,2-10-1460_1334995,00.html ).

 

There's something really easy they could have done -given the Iraqis an incentive to get rid of Saddam. Instead, they explicitly removed that incentive (because removing Saddam was not the objective of the invasion, merely a consequence). "

The other (related) anti-war argument was that the overthrow of Saddam was illegal.... that in going to war the US had contravened international law.  

Actually Steve, if all nations abided by the Charter they signed, then the UN could enforce the law perfectly well -charged as it is with drawing troops from member countries and forming a command. Where this system falls down is when states like the US regard themselves as above the law, not subject to the will of the UN and fail to comply. For instance, the US and UK also violated UN ceasefire Resolutions on Iraq -right up to and including 1441.

Posted by: Seer at March 2, 2005 01:28 PM

 

 

 

 

The UN, like any international body, could solve disputes and keep international law but only so long as all states abide by its wishes and domestic populations are listened to when they demand that a state obeys international law. Unfortunately, so long as powerful states -and their intellectual classes- continue to see international law as simply a device to be used when convenient and ignored when not, it won't be. Most 'commentators' in the US and UK -including on this blog- still think that the law is only for the weak.

Posted by: Seer at March 2, 2005 02:02 PM

 

 

So, the UN could enforce the law if nobody disobeyed it?
That will work, then.

Posted by: SLR at March 2, 2005 02:26 PM

 

 

 

Of course revolutionary war is illegal - just like revolutions are illegal.

 

Revolutions and revolutionary wars cannot be authorised by laws. That would involve a cognitive dissonance.

 

On the contrary, laws and legal systems are authorised by revolutions and revolutionary wars.

 

There isn't a legal system in the world that was ever established lawfully.

 

How could there be?

 

This comment by Dent led to a series of posts about the origins of common law and ideas about legality.

Dent argued that  the Common Law was introduced by the  Norman Conquest.  Marcus disagreed with him, saying that

The Common law had its origins well before the Norman conquest and owes as much - in terms of the basic way it works rather than what's still followed - to the tribal law of the Saxons.

Even within Norman law the customary element was pretty strong and came from the traditions of the tribes who lived in Normandy before the Vikings arrived.

 

At this point the discussion semed to be getting somewhat off-track (although still quite interesting) but then Dent came up with a message  fleshing out  his earlier comment ..."There isn't a legal system in the world that was ever established lawfully":

Marcus:

 

Ok I thought we were drifting into esoterica but I now see a connection between this and the thread again.

 

All laws, whether codified or not and whether evolved or imposed by conquest or revolution rest on the foundations of the underlying social structures that existed prior to the laws "discovery" or enactment. It isn't just in common law countries that basic legal concepts can be traced back to the customs of earlier social formations. Roman Law and the Code Napoleon did not spring from some emperor's head but from the actual social realities.

 

But that is a different question from how legal systems are established. They also emerge from existing social relations but when one legal system replaces another it is because social relations were changed by force and contrary to the laws of the previous legal system.

 

Consider the proposition that "tyranny is unlawful" as a future tenet of customary international law.

 

The proposition that "slavery is unlawful" was enforced unilaterally by the British navy on the high seas before it became accepted even in the United States. This was denounced as a totally arbitrary violation of the lawful rights of peaceable slavers and if America had a navy as powerful as Britains it would never have been tolerated.

 

But it only became accepted as international law much later. Saudi Arabia for example only abolished chattel slavery in the 1960s. Nevertheless it is now law (and like many other laws often breached with forms of slavery still quite widespread even though illegal).

 

At present the proposition that "tyranny is unlawful" is so novel that it would have been nonsensical to even present it as a casus belli. Some other excuse had to be found to provide a legal pretext for invading Iraq.

 

One may reasonably hope that this novel principle will eventually be accepted as "conventional wisdom" and customary law reflecting the actual practice of states when confronted with the international crime of tyranny.

 

When that happens it will be possible to trace a long history of customs relating to tyranny and in particular a long standing practice of tyrants coming to a sticky end and their successors proclaiming that they were overthrown because they were tyrants. An early discussion can be found in Xenophon's Hiero or Tyrannicus.

 

Judges labouring in the vineyards of the law will "discover" new principles that were in fact grown from the seeds planted there by agitators generations before any lawyer could comprehend what they were agitating about and will write lengthy treatises on the development of the crime of tyranny.

 

Nevertheless, the establishment of a system of international law in which tyranny is itself unlawful has not yet been achieved. When it is achieved it will mark a different international legal system from the present one.

 

An important step towards that new understanding of international law has just been taken and it is the near unanimous view of international lawyers that it was plainly an illegal war.

 

Indeed the arguments that invading a country to overthrow a tyranny is lawful are as preposterous as Dred Scott's claim that words asserting a right to life liberty and the pursuit of happiness were intended to apply to people like him who were in fact well understood by the founding fathers to be slaves at the time they wrote those words.

 

The US Supreme Court's decision on that case could not be overturned by law, but only by civil war.

 

Even during the civil war, Lincoln was only able to issue an Emancipation Proclamation with respect to "enemy property" ie slaves owned in the Confederate States - but not in the border states where slavery remained lawful.

 

It was so clear that slavery was lawful that Lincoln had to launch the war on the pretext of "defending the Union" and deny any intention of freeing the slaves.

 

Unfortunately as each battle is won it remains in the interests of ruling classes to discourage the idea that change arises from breaking laws and overthrowing states by force. The revolutionaries become conservatives and pretend that their rule is from time immemorial.

 

In Britain it even went to the absurdity of declaring that the Protestant successors of Princess Sophia, Electress of Hanover reign over the republic - just to pretend the monarchy wasn't overthrown by force.

 

Nevertheless, legal systems are established by force, not by law.

 

Marcus then wrote:

"At present the proposition that "tyranny is unlawful" is so novel that it would have been nonsensical to even present it as a casus belli. Some other excuse had to be found to provide a legal pretext for invading Iraq."

I think that's the central point of your comment Arthur - and much of the debate over the invasion of Iraq turns on the conceptual or legal frameworks that people have tended to see the event through.

I expect states in future will still only be interested in overthrowing tyranny if there is a strategic, commercial or geopolitical reason to do so but it will be interesting to see what happens.

We live in fast-moving times, and none of us have a crystal ball.

 

Followed by Dent:

Marcus:

Yes, my central point was that some other pretext than "tyranny is unlawful" had to be presented for invading Iraq.

But what flows from my analysis is that the concept is no longer so novel. A contemporary precedent has now been set which still outrages defenders of the old order but is no longer "incomprehensible" when raised.

I expect states in future will still only be interested in overthrowing tyranny if there is a strategic, commercial or geopolitical reason to do so but it will be interesting to see what happens.

That is certainly true concerning the universally recognized crime of genocide.

But rather than just observe with interest to see what happens we can try to help make things happen.

For example "crimes against humanity" provide a stepping stone between "genocide" and mere "tyranny" as grounds on which revolutionary democrats could successfully mobilize public opinion in support of a war.

The US has offered 10,000 troops to stop the atrocities in the Sudan. They should simply be sent NOW.

Lincoln benefitted considerably from anti-slavery agitation on his left, even though he could only act when it was plain to the most stupid that the commercial, strategic and geopolitical interests of the North actually required it.

The role of the left today should not be defending Bush against the stoppers, but insistently demanding more, faster.

We do live in fast moving times. But one doesn't need a crystal ball to see that we're actually trailing behind the neocons rather than out in front.