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All News Is Lies With SRA's John Laughland

ALL NEWS IS LIES


SANDERS RESEARCH ASSOCIATES
March 24, 2003
by John Laughland

"War Crimes will be prosecuted"
Donald Rumsfeld, 20th March 2003 [1]

Even by the standards of dishonesty which one has come to expect from London and Washington, the eight-month long Anglo-American political campaign against Iraq has been brazen. The documents which purported to show that Iraq had been attempting to buy material for nuclear weapons turn out to have been fakes, [2] while the British government's notorious third "dossier" turned out to have been cut and pasted, complete with spelling mistakes, from a doctoral thesis published on the Internet. The nadir of deceit, however, was reached when London and Washington claimed that their decision to break off the UN process and go to war without a Security Council Resolution was, in fact, justified by UN Security Council Resolutions.

Lord Goldsmith, the British government's chief legal officer, took the unusual step of publishing his legal advice to the government when he argued that UN Security Council resolution 687, which imposed the terms of the ceasefire in 1991, was not respected because Iraq did not disarm. The authority for war, he said, flowed from a previous resolution, UNSCR 678, which permits the use of "all necessary means" to liberate Kuwait and to "restore international peace and security". Because Iraq had not complied with the cease-fire agreement, the original authorisation was still valid. The dishonesty of this baroque reasoning is astonishing: not only the most recent UNSC Resolution, 1441, concludes that "the Security Council determines to remain seized of the matter", i.e. that it is for the Security Council, and not one or two of its members, to decide whether or not there had been compliance; but also the claim that an act of war is an operation "to restore peace" is a piece of sophistry of which the Inner Party in George Orwell's 1984 would have been proud.

These extraordinary legal gymnastics having been made public, the basis of their reasoning was blown out of the water on the evening of 17th March when President Bush issued an ultimatum to Saddam Hussein to go into exile or face attack. In his own (pre-recorded) broadcast of 21st March, the British prime minister confirmed that the real war aim was not disarmament but regime change when he said, "Tonight, British servicemen and women are engaged from air, land and sea. Their mission: to remove Saddam Hussein from power ..." [1] Needless to say, no UN Security Council Resolution has ever called for Saddam Hussein to be overthrown. Moreover, the issuing of an ultimatum is a well-established and legally recognisable act in the law of war. It is referred to, inter alia, by the Third Hague Convention of 1907, where it is laid down in Article 1 that an ultimatum is required by the laws of war before hostilities begin. [2] The only trouble is that that that law was superseded by the Charter of the United Nations. The charter, which essentially creates a conflict-resolution mechanism, requires that all conflicts between states be dealt with by the Security Council, except in cases of self-defence. So the illegality of the present war, and its incompatibility with the UN Charter, was formally underlined when President Bush delivered his ultimatum.

There is, however, considerable misunderstanding, especially on the Left, about the status of international law. People speak as if the United Nations were some kind of world government, with authority superior to that of its member states. This is false: it is precisely one of the recognised attributes of a sovereign state to belong to the UN. Its Charter, moreover, was drawn up on the morrow of the Second World War after another empire, the German one, had also decided that national sovereignty was an outdated concept. The Nazis had justified their own acts of aggression against their neighbours in the name of a theory of international relations which devalued the concept of state sovereignty, and which arrogated to powerful states the right to invade others in their sphere of influence. This view of international relations was outlined in various theoretical works by influential jurists whose work was used by the Nazis. It was precisely in order to institutionalise an anti-fascist theory of international relations that the Charter of the UN was adopted. Its authors rightly saw that the wars of aggression were the most flagrant example of the violation of national sovereignty, and conversely that national sovereignty was the primary legal obstacle against such wars. So they elevated it to the inspiring principle of the whole charter.

In doing this, they were acting in parallel with the jurisprudence which was being evolved at Nuremberg. Indeed, there is explicit legal congruence between the Nuremberg Charter and the UN Charter, outlined in a declaration dated 11th November 1946. [3] There is as much confusion about Nuremberg as there is about the UN. Contrary to popular misperception, the Nuremberg trials did not prosecute the Nazis for their human rights abuses; it did not apply supra-national but inter-national law. The Nazis were prosecuted for war crimes, i.e. for acts committed during conflict between states, and for having started the war in the first place. The entire prosecution at Nuremberg rested not on the concept of universal human rights, but instead on the allegation that the Nazis were guilty of planning and executing a war of aggression. Those human rights which were prosecuted were judged to have been part of the overall criminal enterprise of planning and conducting the war of aggression. No act committed before 1st September 1939, when Germany invaded Poland, was prosecuted. This is an essential point to grasp because to attack another country is obviously the grossest way to violate its sovereignty. Like the UN Charter, the Nuremberg charter is a sovereignist document.

The crime of aggression was included in the Rome statute of the International Criminal Court, which came into existence in July 2002 and whose first judges were sworn in last week. Although it is also a treaty organisation, whose legitimacy therefore also derives uniquely from the states which have signed it, the ICC revolutionises international law by making it subject to criminal jurisdiction. Whereas all instructions issued by the UN Security Council are addressed to states, prosecutions conducted by the ICC will concern individuals, who will be accused of criminal responsibility for certain acts. The jurisdiction of the ICC will therefore resemble the law of the European Union, which is distinguished from all other treaty organisations precisely in that its law applies to individuals, not states. In this way, the law of the EU, like that of the ICC, will penetrate right through national legal systems and onto individuals. In other words, although it is a treaty organisation like the UN, the ICC will resemble the EU in its supranationalism.

For this reason, it is highly symbolic that the Rome Statute specifically says that the crime of aggression will not be prosecuted until a definition has been agreed upon. [4] Since the international community has not been able to reach a definition despite 50 years of trying - the first attempt to create an international criminal tribunal dates from 1948, but it collapsed in 1953 precisely because no one could agree on a definition of a war of aggression - there is little likelihood that the ICC will ever exercise jurisdiction over this matter. The effect of the ICC, therefore, is to criminalise the laws of war, but effectively to de-criminalise what Nuremberg considered to be the fons et origo of all war crimes, namely starting a war in the first place. To put it more legally, the ICC, by refusing to say what constitutes a war of aggression, effectively abolishes all restrictions on ius ad bellum, the right to wage war, and instead concentrates on ius in bello, the law which applies once hostilities have commenced.

The fullest expression of this lop-sided legal situation came when Secretary of Defense Donald Rumsfeld threatened the Iraqi soldiers that they would be prosecuted for "war crimes" if they executed certain orders. According to Rumsfeld, it is not a crime to start a war in the first place, as the US and the UK have indisputably done. Moreover, it hardly needs to be recalled that the United States has refused to ratify the International Criminal Court treaty, precisely because it refuses the notion that its soldiers should ever be prosecuted for war crimes by a foreign court. The United States also refuses to recognise the prisoners in Guantanamo Bay as prisoners of war under the terms of the 3rd Geneva Convention (12th August 1949), preferring to call them "unlawful combatants", even though Articles 4(1) and 4(3) define as a prisoner of war "Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces" and "Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power." [5]

The concentration, then, is on ius in bello, the law which obtains once hostilities have begun. This law is laid out in the various Conventions signed under the aegis of the Red Cross. [6] It is worth noting, in passing, that one of the earliest international conventions on the laws of war, the Final Act of the International Peace Conference convened at The Hague on 18th May 1899, prohibited the use of gas, the use of dum-dum bullets, and aerial bombardment. [7] While the first two of these have made their way down the centuries - in the case of the prohibition of dum-dum bullets, the wording in the Rome Statute of 1998 is copied verbatim from the Hague Final Act of 100 years' previously - the prohibition on aerial bombardment has been dropped. Indeed, in the eyes of our modern humanitarian bombers, aerial bombardment has been transformed from abomination into the instrument of the very highest morality. During the Kosovo war, General Wesley Clark said that President Milosevic must have felt that he was "fighting God" as Nato's bombs rained down on him, [8] while the military historian and Defence correspondent of the Daily Telegraph, Sir John Keegan, wrote during the same war that "technology and international morality now march in lockstep." [9]

Although national martial courts have always been able to prosecute their own soldiers for misconduct in battle, there has never before been an international (and allegedly impartial) tribunal to prosecute crimes under the terms of the laws of war. Consequently, we will have to wait and see what arms and what military practices the ICC declares illegal. Even when it does make rulings, however, there is little point getting excited that a new period of international morality will have dawned. Part of my objection to the world of international and supranational humanitarian law is that it detaches law from statehood - and especially from policing - in a nonsensical way. This detachment has two consequences: laws which go against the most powerful states, the only potential enforcers of such law, are ignored; while laws which are useful to the purposes of those states are enforced, at the expense of double-standards.

Consequently, it is questionable whether any discussion of ius in bello can really be legal. One can make whatever claims one likes about the practice of modern warfare; if a law is not enforced, it is difficult to see in what sense it is a law. One might well argue that the general prohibition on weapons which are inherently indiscriminate would apply to nearly all aerially-delivered bombs, for even if they are precision-guided, the blast from them destroys much around the target. But, in the absence of a world state (itself a frightening prospect, however much Mr. Rumsfeld does to advance it) it is simply not possible to discuss such matters legally. Instead, they should be discussed morally.

On the moral issues, what better authority to consult than the Pope? The condemnation of this Iraq war by the Vatican has been of a virulence seldom heard, even from the present very anti-war Pope. John Paul II delivered his first condemnation of the impending Anglo-American decision to go to war on 16th March 2003 in St. Peter's Square. He said, "Certainly the political leaders in Baghdad have the urgent duty to collaborate fully with the international community to eliminate all motives for military intervention ... But I also want to remind the member states of the United Nations, and in particular those in the Security Council, that the use of force represents the last resort, after all other peaceful solutions have been exhausted, according to the principles of the UN Charter itself." [10] He then said that there was still time for negotiation - the very position adopted by France, Russia, China and several other non-permanent members of the Council.

When George Bush ignored this by issuing his ultimatum on Monday evening, the Pope instructed his press secretary to issue the following terse statement: "Whoever decides that all peaceful methods of international law have been exhausted assumes a grave responsibility before God, his conscience, and history." [11] As if this were not enough, other Vatican officials issued quite extraordinary statements of condemnation. Speaking on Vatican Radio on 18th March, Archbishop Renato Raffaele Martino, the head of the Pontifical Council for Justice and Peace, said, "War is a crime against peace which cries for vengeance before God." This latter phrase has a precise theological meaning, and it is not a hyperbole which an Archbishop would use lightly. He went on, "Do not reply with a stone to the child who asks for bread. They are preparing to reply with thousands of bombs to a people that has been asking for bread for the last 12 years." [12]

Perhaps the most arresting remark, though, came from Cardinal Roberto Tucci, a papal confidant who has organised most of the Pope's foreign trips over recent years. The US attack, he said, was "a defeat for reason and the gospel. The war is beyond all legality and international legitimacy". Washington, he said, was "an imperial democracy" which had made itself "the self-proclaimed arbiter of all". And then the killer claim: "When everything will be known, we will be able to see that this war was decided in advance, ahead of the time when the results of the UN inspectors would be known. That is grave." [13] The Cardinal was referring, of course, to the fact that the war never had anything to do with weapons inspections, and everything to do with removing Saddam Hussein. But here again, his remarks has a precise moral meaning. For one of the criteria for a just war is that it be conducted with a "right intention". Although we cannot know whether the US administration's intentions are right, the alternatives are clear. If its intention really is to make the world a safer place, something the Cardinal expressly says is not the case, then one of the conditions for a just war is fulfilled. If, on the other hand, the real intention is to secure an American monopoly over the energy supplies of the world, and to make the Middle East safe for Israel by removing the last anti-Zionist Arab leader, then it most certainly an unjust war. On this, you can make up your own mind.

1] http://www.number-10.gov.uk/output/Page3322.asp

[2] The web site of the International Committee of the Red Cross has a full database of all treaties and conventions which constitute the law of war. For the 3rd Hague Convention, 18th October 1907, see http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/
b59c84b75bfb1520c125641e0037aa5a?OpenDocument

[3] http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/
648ff02b73cde729c125641e004064ac?OpenDocument

[4] See Article 5 (2) of the Rome Statute, http://www.un.org/law/icc/statute/romefra.htm

[5] http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/
6fef854a3517b75ac125641e004a9e68?OpenDocument

[6] They can be consulted on the web site of the International Committee of the Red Cross. http://www.icrc.org/ihl.nsf/WebFULL?OpenView

[7] See the three Declarations of the Final Act. http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e636d/
ffdea4cf83d0789fc125641e0034a70f?OpenDocument

[8] SHAPE News summary and analysis, 12th May 1999

[9] The Daily Telegraph, 16th January 2001

[10] http://www.vatican.va/news_services/bulletin/news/12892.php?index=12892&po_date=16.03.2003&lang=en. My translation

[11] Statement on 18th March 2003, my translation. http://www.vatican.va/news_services/bulletin/news/12924.php?index=12924&po_date=18.03.2003&lang=en

[12] Reported in The Australian, 18th March 2003

[13] News report, 20th March 2003

You might have missed . . .

Democracy in Serbia

The Serbian government has reacted to the assassination of the prime minister, Zoran Djindjic, by introducing a state of emergency and conducting mass arrests. The BBC report that over 1,000 people have been arrested already. [1] One national newspaper, one TV station, one weekly magazine and a Montenegrin newspaper have been closed down or banned. It needs hardly be said that such measures were never introduced under Slobodan Milosevic. This attack on the media has been carried out in the name of an emergency media law which reads as follows: "The Decree on special measures during the state of emergency became effective on March 12, 2003... The priority during the state of emergency is the unobstructed work of the competent state bodies aimed at removing the reason why the state of emergency was introduced to begin with. The media and all means of imparting information have a special role, as their work is turned to the public. With that in mind, we are warning all public media that, under Item 9 of the Decree concerning the prohibition of broadcasting, they are obligated to carry only the official releases of the competent state bodies... Item 8 of the same Decree prohibits political, unionist or any other type of action aimed at obstructing or preventing the work of the state of emergency, and the conveying of information on such actions, by means of publishing releases, commentary or statements shall be in violation of the Decree. The Ministry of Culture and Broadcasting will, in cooperation with the Ministry of the Interior, undertake the appropriate measures against media which fail to observe the above mentioned provisions of the decree..."

What no media outlet will tell you is that the prime suspect for the assassination, Milorad Lukovic, born Umenek, who is known by his nickname "Legija", was the man who helped Djindjic to power in the first place. The man who commanded a paramilitary group met Djindjic on the evening before the events which overthrew Slobodan Milosevic on 5th October 2001, and his support was described by Djindjic as crucial to the whole enterprise. [2] Legija's men were later the masked thugs who stormed the Milosevic residence on 1st April 2001. In other words, Djindjic was in league with the man who allegedly killed him, and this fact has been obscured by the world's media because it is determined to present Djindjic as a "democrat" rather than as a New World Order mafia boss.

Naturally, the main human rights organisations of Europe reacted with approval to this astonishing crackdown on freedom in Serbia. Tanjug reported on 19th March that the president of the Council of Europe Parliamentary Assembly's Committee for Political Issues expressed understanding for the emergency measures taken in Serbia. The official said that Belgrade had assured him that international standards were being respected and that he had "received no complaints" so far.

*************

[1] http://news.bbc.co.uk/2/hi/europe/2869769.stm

[2] Interview with Djindjic in Europäische Rundschau, Autumn 2001 (No. 4)

*************

© Copyright Sanders Research Associates Ltd. 2003. The contents of the following, either in whole or in part, may not be reproduced, stored or transmitted in any form or by any means, electronic, photocopying, recording or otherwise without the written permission of Sanders Research Associates. While considering the contents to be reliable, SRA take no responsibility for the information set forth herein.

ENQUIRIES & CORRESPONDENCE: EDITORIAL OF F I C E : P.O. B OX 221, HEMEL HEMPSTEAD HERTS HP1 3TJ, U. K .

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SANDERS RESEARCH ASSOCIATES LTD. ALEXANDRA HO. , THE SWEEPSTAKES BALLSBRIDGE DUBLIN 4 IRELAND


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