Aggression “Isn’t” A Crime

Farooque Chowdhury

Only about 11 years ago, Saddam Hussein was sitting in a Baghdad court and facing trial. His crimes were defined and dissected by the world-masters. And, Saddam, shackled and subdued, was delivered the masters’ judgment: face a knotted rope from gallows.

Only about 14 years ago, smoke was billowing up from Saddam’s presidential palace compound in Baghdad. An invading force was making air strikes there. More or less at the same time, an allied US-UK force was advancing across southern Iraq. It was a war of invasion by a coalition of more than 40 countries led by the US. Iraqi causalities of the invasion have been estimated by a number of authorities between 150,000 and 500,000.

Years later, came out the famous Chilcot Report in the UK. The 2.6 million word damning report by Sir John Chilcot condemned the then UK prime minister Tony Blair’s rush to Iraq invasion in 2003.

Now, weeks ago, the UK High Court blocked attempt to prosecute Blair over Iraq War. General Abdul-Wahid Shannan ar-Ribat, a former chief of staff of the Iraqi army, had hoped to bring a private prosecution against Blair for the crime of “aggression” in Iraq. The former Iraqi general tried to overturn Blair’s immunity from prosecution for his role in the Iraq War.

On July 31, 2017, the court dismissed the application for a judicial review to overturn a 2006 ruling by the UK House of Lords: “Because of a decision by the House of Lords binding in this court, there is no crime of aggression under domestic UK law.” The 2006-ruling by the House of Lords said: There is no such crime as the crime of aggression under the law of England and Wales.

So, there’s a void in the system of defining the crime of aggression. Is there any void in the legal system for securing the system of capital? So, there’s a void, and there’s no nihility, and the two currently cohabit peacefully.

Blair, enjoying immunity from criminal charges over the 2003 Iraq war, no doubt is happy. He is also grateful to the interests he pledged to uphold. A 2016 court ruling said attempting to bring any prosecution would involve revealing details currently kept under the Official Secrets Act of the UK. A 2016 ruling provides Blair immunity from criminal charges.

Lawyers upholding the immunity argued: The crime of aggression is recognized by international law; but, there is no such offence in English law. Lord Chief Justice Baron Thomas of Cwmgiedd and Justice Duncan Ouseley found: There was no such crime, and, therefore, there’s “no prospect” of the case against Blair succeeding.

Hail the English Law! Hail official secrets in democracy!

The bourgeoisie need the operating mechanism of secrecy in their democracy. The principle and mechanism of secrecy were always there in state machine. Its increased use is now a permanent trend. “State policy is elaborated under the sign of secrecy, now established as a permanent matter of State through hidden mechanisms and a regime of administrative procedures that almost entirely escapes the control of public opinion. This represents a considerable change in the elementary principles of bourgeois representative democracy itself. Thus, the principle of public knowledge is completely discarded in favour of an institutionally recognized principle of secrecy […]” (Nicos Poulantzas, State, Power, Socialism, Verso, London, New York, 2000, English translation of L’Etat, le Pouvoir, le Socialisme, translated by Patrick Camiller) Do the bourgeoisie talk about transparency in their democracy? They know best. What about the scholars serving their bourgeois masters? The mighty minds will obviously construct explanations suitable to their masters, and apply those according to their sweet wishes as they apply definitions of political power, legality, separation of power, etc. in cases of opposing interests of the bourgeoisie and the proletariat: “yes” for the bourgeoisie while “no” for the proletariat, the class-enemy of the bourgeoisie.

So, it comes up: Interests define definition in the areas of politics, law, ruling mechanism, and related areas. Definitions are interpreted according to interests also.

Michael Mansfield QC, acting for General Ar-Ribat, argued: The international law banning aggressive war applies to Britain, and that Blair was at fault for invading Iraq.

On the issue, Respect Party leader George Galloway wrote:

“If there really is no law against launching an ‘aggressive war’ in England, then the law is an ass.”

The UK politician continued:

“The decision by two High Court judges that Tony Blair cannot be prosecuted for the war in Iraq gives immunity and in perpetuity to any two-bit hustler who gets his or her hands on state power in Britain and lays waste the lives of others and their own country’s vital interests.”

Galloway added:

“In the Nuremberg Trials Britain prosecuted the surviving beasts of German fascism for precisely the crime of launching ‘aggressive war.’ Even though what the genocidal dictator of Germany did was perfectly ‘legal’ under German law, even though there was no international legal definition of ‘aggressive war,’ Britain rightly tried the Nazi beasts and hanged a great number of them.

“From that moment onwards the de jure inadmissibility of such wars was established axiomatically in the British legal system.”

Galloway said: Blair’s war in Iraq was not a “war of last resort” and had no sound basis. Its consequences are “heading towards the gravity of the Hitlerite crimes.”

He further argued:

“More than a million people have died and that number is still rising daily. […]

“Sovereign states have been invaded, occupied and destroyed. International law has been shredded. Torture in secret prisons of victims illegally kidnapped and ferried to their fates on the torture tables of tyranny by, amongst others, us. As a result of Tony Blair’s war the youngest of our children will likely not enjoy a moment of peace and security in their whole lives.

“It’s quite a charge sheet. But not one we are told that can ever be tested in a British Court. If that’s justice, I’m a banana.”

It thus comes up: Definitions evolve, and the same definition carries different meanings, validity, legality and force with changing areas, interests and requirements over time.

The Blair-in-Iraq case has been exposed, at least partly, by the widely-referred Chilcot Report (CR), which is enough to define the war. The report heavily criticized Blair’s role in initiating the invasion over a baseless assumption that Saddam had WMDs – weapons of mass destruction.

Chilcot’s findings include:

# Blair and his allies’ assertion with Saddam’s WMDs “was not justified”.

# Blair’s arguments for going to war were based on “flawed intelligence and assessments”, which were not challenged, but should have been.

# Military action was not a last resort as diplomatic options had not at that stage been exhausted.

# Consequences of the invasion and the following conflict within Iraq are still being felt in the country, the Middle East and the UK. There are many bereaved families, and physically and mentally wounded. The Iraqi people suffered from years of violence.

Blair expressed his “sorrow” for lost lives, and “regret and apology” for his (mis)doings. He feels “deeply and sincerely […] the grief and suffering of those who lost ones they loved in Iraq.” Blair was asked about his regret for starting the war. His response: “I believe the decision was right.” He said: “I spend so much of my time thinking about this issue, I spend so much of my life analysing it”. He was speaking in the wake of release of the CR. But, Blair is “undone” for deaths in Iraq as “The Lord killeth and maketh alive.” (Samuel 2:6) How much Blair “to” blame?

Thus, facts stand as the following:

An invasion was triggered with unjustified and wrong assumptions, with flawed intelligence and assessment, and without exhausting diplomatic options, which caused loss of lives and other casualties numbering millions, and the decision for invading a country was “right” although one of the designers of the invasion feels sorry, and regrets and apologizes (!).

Imperialism thus builds up arguments for all its “noble” deed, and cost and price of the deeds are millions of lives, millions of maimed and wounded, and citizens’ taxes.

But, this is “not” a crime as this was not defined as crime or no law was found to define it as crime in a certain country or by a certain state. Isn’t the system arguing in this way?

The argument based on “absence of law” creates further arguments. As for example, no imperialist statute book defines:

1. Imperialist exploitation of human society and nature is a crime.
2. Devastations done by multilateral lending agencies with their prescriptions, and implementation of structural programs, etc. are crimes.
3. Devastations done by financial “gamblers” – the owners of monopoly financial capital – and by so-called austerity measures are crimes.
4. Acts by defense contractors – assaults, night-raids and killings for profit, etc., and defying laws and conventions – are crimes.
5. Imperialist intervention, invasion and aggression following and preceding the Iraq invasion are crimes.
6. And, Clive and Mir Jafar in Bengal should not be charged with crime for all their “nice” doings against the Murshidabad Nabob as neither the Nabob’s statute book nor the law book in London defines those acts a crime.

And, shall not these arguments and precedents be applied to all future imperialist conspiracies, interventions, invasions, aggressions, genocides, devastations, loots, and transfer of arms and chemical weapons to proxies?

There were no laws related to internet before the advent of the powerful communication channel. Examples can be cited from the areas of test tube baby, surrogate mother, sea bed mining, robot-body-toys, drone, artificial intelligence, etc. But, laws have been/are being enacted in these areas. These laws will go through amendments and evolutions. The British colonial rulers love to forget that they enacted many laws to maintain their savage rule in Bangladesh-India-Pakistan sub-continent. Those laws spanned from areas of land administration to taxation, from rivers to prison, from indigo to factory boilers, from lavishing lackeys with awards and titles – maharaja – to punishing patriots – transporting to banishment and sending to gallows, from banning creations to acts of so-called sedition. Once, the brutal Rowlatt Act was not there in colonial India. The British colonial rulers devised the act. The imperial power is giving reparations in at least one of its colonies for tortures it once carried out in the colony. The imperial power never imagined that it have to pay reparations for tortures it “awarded” the patriots. So, don’t these examples stand as counter-argument to the argument of a void in the area of law on crime of aggression?

Following the release of the CR, the families of British soldiers killed during the Iraq War had called for Blair to face legal action for war crimes, either by the International Criminal Court or The Hague. Has that happened?

SNP’s Alex Salmond, one of the first MPs to give a response to the CR, said:

“After such carnage, people will ask inevitable questions of was conflict inevitable and worthwhile? The answer from Chilcot is undoubtedly no. And who is responsible? The answer is undoubtedly Tony Blair. There must now be a consideration of what political or legal consequences are appropriate for those responsible.”

But, the imperialists are confident that as the lords of the world they are to define genocide, crime of aggression and crime against humanity. To the imperialist lords, all wars they wage are in accordance with jus bellum iustum, the just war theory. They have entitled themselves with jus ad bellum, the right to go to war. And, all they do during the wars they wage is jus in bello, the right conduct in war. So, there’s “no” reason to blame Blair.

Moreover, there is Saint Thomas Aquinas. And, “Aquinas combined the sense of cosmic natural law with Aristotle’s view that human beings, like every other natural object, have a specific nature, purpose, and function. A knife’s function is to cut sharply, a chair’s function is to support the body in a certain position, and a house’s function is to provide shelter from the elements. Humanity’s essence or proper function is to live the life of reason.” (Louis P Pojman and James Fieser, Ethics: Discovering Right and Wrong, Wadsworth, Australia, Brazil, etc, 7th edition) Shouldn’t imperialism have specific function if knife, chair and humanity have specific functions? The function is to secure imperialist world system, and carry on following functions, one of which is waging wars. Blair has faithfully carried on the function.

To Blair, his Iraq-functions were against Saddam, considered an evil by Blair, as all imperialists identify all its opponents, obstacles and competitors as evil, and Aquinas has argued: “Hence this is the first precept of law, that bonum est faciendum et prosequendum, et malum vitandum, good is to be done and pursued, and evil is to be avoided.” (Summa Theologiae I-II, Question 94: The Natural Law, Article 2, in short 94:2) Blair has followed the saint, and pursued “good” and demolished an “evil” although peoples in Iraq, the UK and other countries had to pay for this pursuance; and the “good” and the “evil” were defined by Blair along with a friend named Bush.

But, the acts of the duo – Blair-Bush – were not acts of individuals. Their acts represented a certain interest, the imperialist interest. So, the question of law related to crime or absence of law of such a crime is actually awarding immunity to imperialist interest; and thus imperialist interest stood against people, victim of the crime. Moreover, the absence of such a law legitimizes imperialist violence; and with this legitimization, state’s repressive role, camouflaged regularly, is being confirmed.

Here, one organ of state resorts to other to legitimize another organ’s functions: judiciary resorts to acts of legislative organ to protect acts of executive branch. Thus, it denies its much swashed separation of power, and unashamedly stands as an indivisible entity. It’s an arrangement of monopoly of power; and in case of imperialist states, the monopoly of power stretches from home to other countries with full fury of force of violence. The monopoly of power changes or experiences cracks with change in class-power equation favoring the dominated classes or due to factional fight of dominating interests, and the equation changes and temporary brakes on the power of coercion operate with intensification of class struggle by the dominated classes.

In the Communist Manifesto, Marx identified bourgeois law as nothing more than the desires of the bourgeoisie: “[Y]our jurisprudence is but the will of your class made into a law for all, a will, whose essential character and direction are determined by the economic conditions of existence of your class.” By building up a legal argument on the basis of absence of a law is nothing, but legalized expression of a desire and will of an interest – imperialist interests.

The bourgeoisie also desire: People have to accept and uphold bourgeoisie interests, and that has to be done in the name of law defined according to the wishes and desires of the bourgeoisie. And, desire of bosses is actually their order to subordinates. If that is the case, then, people falling as victims of imperialist crime – crime of aggression, etc. – shall never have justice.

But, there’s the maxim: lex iniusta non est lex, an unjust law is no law at all. People will find out this maxim through their experience of interaction with the system of bourgeoisie law. And, consequences of this experience created precedents in countries and empires over ages. A series of revolts compelled Rome to formulate the Twelve Tablets. Even, in the land of void in the English law, rage of subjects compelled crowning interests to enter into compromises in the form enacting new laws.

Whatever the pace of development in the area of claimed void in the legal system is, the current arguments, orders and verdicts virtually favoring an aggression come up as lesson for political education of people, which is more effective than teaching with abstract theories. Verdicts of void will be questioned and challenged with the spread of this lesson as ruling systems, legal system is part of ruling system, are not immune from subjects’ questioning.