Wednesday, April 09, 2008

Of Law and Justice (or the Perils of Left Legalism)

Here, somewhat unsurprisingly, teh Graun reports that the House of Lords has ruled against the attempt to force the government to conduct an inquiry into the Iraq war. Particularly interesting was Baroness Hale's judgment, which seems quite scathing:

Hale, while ruling that the decision to deny a public inquiry was correct, said that a state sending troops to war had a "duty to its soldiers to ensure that those orders are lawful".

If the invasion decision had been unambiguously lawful, Clarke and Gentle would have "some comfort to know that their sons had died in a just cause," she said.

"If it was not, there might at least be some public acknowledgement and attribution of responsibility and lessons learned for the future.

"If my child had died in this way, that is exactly what I would want. I would want to feel that she had died fighting for a just cause, that she had not been sent to fight a battle which should never have been fought at all, and that if she had then someone might be called to account."

If the invasion decision had been unambiguously lawful, Clarke and Gentle would have "some comfort to know that their sons had died in a just cause". Really? Really? If the United States had managed to strong arm some more members on the Security Council into directly authorising the use of force this would mean the cause was 'just'? It strikes me that this simply does not follow. It is pretty much a common position in jurisprudence now that just because something is legal, doesn't mean it's just (even natural lawyers don't want to go this far). I would have opposed the war in Iraq whether or not it was illegal, as I think would most people on the left.

But the left, by focusing on legalism, and focusing its campaign around the 'illegality' of the war seems to reinforce the equation of legality with justice. Some people may argue this theoretically, so as we noted before Bowring has argued that we should support certain classical principles of international law because they are the outcomes of progressive struggles. Yet it strikes me that even the classical principles of self-defence are liable to produce wars, particularly as all that is needed is for the Security Council to authorise the use of force, when there is a threat to international peace and security. The classical principles of self-defence are premised on the defence of the status quo, so again, I'm not entirely sure why we on the left should support them. Finally, this equation tends to obscure the complicity that international law has in the creation of conflict, violence and war. Susan Marks (State Centrism, International Law and the Anxieties of Influence, 2006 19 Leiden Journal of International Law: 339-347) writes interestingly that:

Viewed from this angle, the anxiety of influence felt by international lawyers is a not just a fear of irrelevance but a fear of relevance as well – not just a shock at the recognition of politics in law, but a shock at the recognition of law in politics. If this is right, then what is troubling is not only belatedness, but also primordiality, and not only indebtedness, but also responsibility. John Bolton and Richard Perle may like to think – or like us to think – that international law is irrelevant to the US administration, but John Yoo and Jay Bybee know better. But then, their intricately argued 'torture memos' only really confirm what historians can tell us anyway: that empire is a legal construct – not only encumbered by international law, but also partly constituted by it.


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