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Could the end game be a surprise? (Pic: Edgar Gambin)
Journal of a Futurist - 9 March 2004
The knock on the PM's door at midnight.
The bulk of eminent legal opinion in the West has long agreed that the invasion of Iraq was unlawful. One of the architects of the war, Paul Wolfowitz, has admitted “it was probably illegal”. Former Chief UN Weapons Inspector Hans Blix does not “buy the argument” that Iraq’s violation of previous resolutions makes the war legitimate. Even the British Foreign Office, it now turns out, sent a secret memo to Tony Blair’s Cabinet advising that resolution 1441 failed to justify war. Blair’s attorney general, Lord Goldsmith, also voiced concerns that the war lacked legality without a second UN resolution.
Last year, over 40 Australian experts on international law and human rights signed a joint statement that the invasion of Iraq is a “fundamental violation” of international law that could involve war crimes and crimes against humanity. Robert Black QC, Professor of Scots law at Edinburgh University, and a key figure in the Lockerbie trial in The Hague, has written: “It is perfectly plain that none of the Security Council resolutions relating to Iraq authorised armed intervention. It's possible to cobble together what looks like a legal argument, but the real test of any legal argument is whether a court would accept that argument”. Black weighed up the odds of the International Court of Justice supporting the Blair Government’s case. In his view, “the odds against it are greater than 10 to one”.
If a war is against the law …
Ahmad Chalabi of the Iraqi National Council has conceded that the threat of a massive arsenal of WMD’s promoted by his group was bogus, but it doesn’t matter. “What was said before the war is not important… we got what we wanted”. Such a philosophy coincides with that of war’s supporters: the end justifies the means.
… then who will pay the price?
Leaving aside the military casualties on both sides, the most reliable estimate of Iraqi civilian deaths due to the invasion has now topped 10,000, the majority of whom are women and children. The number of maimed and injured is five times that figure, at least. On behalf of these victims, how can justice be served?
The pain and the suffering of the injured survivors, as well as the families of the dead, could be alleviated by reparations. However, as far as I can discover, there is no serious effort by the Coalition to properly compensate the victims.
The quandary of the coroner
Another question arises. As the war is widely judged illegal, how should the coroner classify the deaths of the 10,000 civilians? The easy way out would be a finding of manslaughter, as none of those killed were specifically placed on a hit list, apart from the sons and the grandchild of Saddam Hussein. The term manslaughter carries with it the notion that the deaths resulting from an action were not foreseen. This does not apply in the case of a shock-and-awe invasion of a city with a wrecked infrastructure, scant defences and decrepit hospitals. A child of ten could foresee that Stealth bombers, cruise missiles and cluster bombs would cause numerous casualties. (Some sources claim the deaths and injury of young children from unexploded British and American cluster bombs continues at a rate of 1,000 a month).
Such deaths are not accidental. They are inevitable. While the identities of Iraqi citizens killed by hostilities could not be known in advance, and thus are not pre-meditated, it doesn’t render the perpetrators any less culpable. The serial killer who murders for pleasure is not exonerated by his ignorance of the victim’s identity. In fact, the only moral difference between the actions of a killer and actions of a politician who starts an illegal war is one of scale – the latter has deadlier implements.
Okay, so who faces the music?
If there was justice in the world, who should be put on trial for he deaths of the 10,000? The people who ordered the armies into Iraq. The ones who lied to their own people, lied to the UN, and probably lied to their loved ones - George W Bush, Tony Blair and John Howard. It is unlikely that the attorneys general of America, Britain, or Australia will issue warrants for the arrest of the perpetrators, partly because they too are up to their necks in the decision to bomb Baghdad. So, what is to be done?
The simplest and most effective solution is to invoke the common law right of a citizen’s arrest. According to Black’s Law Dictionary, an arrest is defined as the “apprehending or detaining of a person in order to be forthcoming to answer an alleged or suspected crime”. Historically, in Anglo Saxon law in medieval England, the citizen's arrest was an important part of community law enforcement, according to US constitutional lawyer, David C Grossack. He writes: “Sheriffs encouraged and relied upon active participation by able bodied persons in the towns and villages of their jurisdiction. From this legacy originated the concept of the posse comitatus which is a part of the United States legal tradition as well as the English” – and of course absorbed into Australian common law, courtesy of our constitutional legacy.
Just as well the White House isn’t in Kentucky
In medieval England, the right of a citizen to make an arrest was “virtually identical” to those of a sheriff or constable. Grossack’s survey of US states shows that these rights are still protected. In Tennessee, for instance “reasonable grounds will justify the arrest, whether the facts turn out to be sufficient or not”. In Kentucky, citizens are “permitted to kill fleeing felons while making a citizen's arrest”, though I am not suggesting this course should be adopted in Canberra.
For a citizen’s arrest to be considered lawful in Australia, it needs to meet two conditions. 1) Is the crime still in progress? Yes, coalition forces are still occupying Iraq and killing people. 2) Is it necessary for an arrest to occur to avoid the felon escaping justice? Yes again, unfortunately. It appears there is an ironclad justification for the apprehension of the instigators of the Iraqi war.
However, public spirited citizens are urged to use the minimum of force when making the arrest and to ensure that they are capable of detaining the perpetrator. To this end, peace officers suggest a solid pair of handcuffs. The prisoner(s) can then be turned over to the International Criminal Court in The Hague, along with Saddam Hussein, to answer forthcoming indictments for crimes against humanity. All it will take is for someone out there to make the first move.
HOT LINKS:
A sad reminder about Kerrey, which raises a deep metaphorical question. Why do the two men vying to be the leader of the free world both have blood on their hands? No, wait a minute, it was another Kerr(e)y, idiot, former Senator Bob K, so my wires got twisted again - time to be put out to pasture, don't you think? Let's move on to.....
Edgar Gambin created the above image. His work can be found at www.wisepossumnaturegallery.com
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