It is often lawful to sabotage the US military machine

(please pass this on!)

Putting the State on Trial

Protesters who have damaged military equipment are walking away from the
dock

by George Monbiot

October 20, 2006

The Guardian

In the early hours, two days before the attack on Iraq began, two men in
their thirties, Phil Pritchard and Toby Olditch, cut through the fence
surrounding the air base at Fairford in Gloucestershire and made their way
towards the B52 bombers which were stationed there. The planes belonged to
the US air force. The trespassers were caught by guards and found to be
carrying tools and paint(1). They confessed that they were seeking to
disable the planes, in order to prevent war crimes from being committed.
This year they were tried on charges of conspiracy to commit criminal
damage, which carries a maximum sentence of 10 years. Last week, after
long deliberations, the jury failed to reach a verdict.

The same thing happened a month ago. Two other activists - Margaret Jones
and Paul Milling -had entered the same RAF base and smashed up over 20 of
the vehicles used to load bombs onto the B52s. The charges were the same,
and again the jury failed to agree(2). In both cases the defendants
claimed to be putting the state on trial. If I were in government, I would
be starting to feel uneasy.

The defendants had tried to argue in court that the entire war against
Iraq was a crime of aggression. But in March this year the Law Lords ruled
that they could not use this defence: while aggression by the state is a
crime under international law, it is not a crime under domestic law(3).
But they were allowed to show that they were seeking to prevent specific
war crimes from being committed - principally the release by the B52s of
cluster bombs and munitions tipped with depleted uranium.

They cited section 5 of the 1971 Criminal Damage Act, which provides
lawful excuse for damaging property if that action prevents property
belonging to other people from being damaged, and section 3 of the 1967
Criminal Law Act, which states that "a person may use such force as is
reasonable in the prevention of a crime". In summing up, the judge told
the jurors that using weapons "with an adverse effect on civilian
populations which is disproportionate to the need to achieve the military
objective"(4) is a war crime. The defendants are likely to be tried again
next year.

While these non-verdicts are as far as the defence of lawful excuse for
impeding the Iraq war has progressed in the UK, in Ireland and Germany the
courts have made decisions - scarcely reported over here - whose
implications are momentous. In July, five peace campaigners were acquitted
after using an axe and hammers to cause $2.5m worth of damage to a plane
belonging to the US Navy. When they attacked it, in February 2003, it had
been refuelling at Shannon airport on its way to Kuwait, where it would
deliver supplies to be used in the impending war. The jury decided that
the five saboteurs were acting lawfully(5).

This summer, the German Federal Administrative Court threw out the charge
of insubordination against a major in the German army. He had refused to
obey an order which, he believed, would implicate him in the invasion of
Iraq. The judges determined that the UN Charter permits a state to go to
war in only two circumstances: in self-defence and when it has been
authorised to do by the UN Security Council. The states attacking Iraq,
they ruled, had no such licence. Resolution 1441, which was used by the
British and US governments to justify the invasion, contained no
authorisation. The war could be considered an act of aggression(6).

There is no prospect that the British prime minister could be put on trial
for war crimes in this country (though as the international lawyer
Philippe Sands points out, there is a chance that he could be arrested and
tried elsewhere(7)). Even so, the government appears to find these legal
processes profoundly threatening.

When the Fairford protesters took their request to challenge the legality
of the war to the court of appeal, Sir Michael Jay, permanent
under-secretary at the Foreign Office, submitted a witness statement which
seems to contain a note of official panic. "It would be prejudicial to the
national interest and to the conduct of the Government's foreign policy if
the English courts were to express opinions on questions of international
law concerning the use of force ... which might differ from those
expressed by the Government." Such an opinion "would inevitably weaken the
Government's hand in its negotiations with other States. Allied States,
which have agreed with and supported the United Kingdom's views on the
legality of the use of force, could regard such a step as tending to
undermine their own position."(8)

It doesn't seem to matter how many journalists, protesters or even lawyers
point out that the British government had no legal case for attacking
Iraq, that the Attorney General's official justification was risible and
that Blair's arguments were mendacious. As long as the government has a
majority in parliament, the support of much of the press and an army of
spin doctors constantly weaving and re-weaving its story, it can shrug off
these attacks. It can insist, with some success, that we "move on" from
Iraq. But an official verdict, handed down by a court, is another matter.
If a ruling like that of the German Federal Administrative Court were made
over here, it could be devastating for Blair and his ministers.

The prosecutors have lost before. In 1999, a sheriff (a junior Scottish
judge) at the court in Greenock instructed the jury to acquit three women
who had boarded a Trident submarine testing station on Loch Goil and
thrown its computers into the sea. They had argued that the deployment of
the nuclear weapons the submarines carried contravened international law.
The sheriff said she could not "conclude definitively" whether or not this
was true, but that she had "heard nothing which would make it seem to me
that the accused acted with criminal intent"(9). The court of session in
Edinburgh later overturned her ruling. Now campaigners against nuclear
weapons will be mounting further legal challenges, as they try to sustain
a continuous peaceful blockade of the Trident base at Faslane for a year
(see www.faslane365.org).

In 1996, four women were acquitted of conspiracy and criminal damage after
disabling a Hawk jet which was due to be sold by BAE to the Suharto
dictatorship in Indonesia. They argued that they were using reasonable
force to prevent crimes of genocide that the Indonesian government was
committing in East Timor(10). Their acquittal might have helped persuade
Robin Cook to seek to introduce an "ethical dimension" to foreign policy
in 1997 (he was, as we now know, thwarted by Blair).

It is true that such verdicts (or non-verdicts) impose no legal
obligations on the government. They do not in themselves demonstrate that
its ministers are guilty of war crimes. But every time the prosecution
fails to secure a conviction, the state's authority to take decisions
which contravene international law is weakened. These cases cannot reverse
the hideous consequences of the crime of aggression (the "supreme
international crime", according to the Nuremberg tribunals) that Mr Blair
and Mr Bush committed in Iraq. But they do make it harder to repeat.

George Monbiot's book Heat: how to stop the planet burning is published by
Penguin.

www.monbiot.com

References:

1. See http://www.b52two.blogspot.com/

2. See http://www.bristol.indymedia.org/newswire.php?story_id=25379

3. House of Lords, 29th March 2006. Judgments - R v. Jones (Appellant).

http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060329/jones-1.htm

4. See
http://www.blogger.com/post-edit.g?blogID=35337841&postID=116049609842175978&quickEdit=true

5. Indymedia Ireland, 25th July 2006. Not Guilty. The Pitstop Ploughshares
All Acquitted on All Charges.

http://www.indymedia.ie/article/77460

6. Justus Leicht, 27th September 2005. German court declares Iraq war
violated international law

http://www.wsws.org/articles/2005/sep2005/iraq-s27.shtml

7. John Crace, 14th February 2006. Philippe Sands: Weapon of mass
instruction. The Guardian.

8. Sir Michael Hastings Jay, 29th June 2004. Witness Statement: R v Jones
and Milling, Olditch and Pritchard, Richards.
http://www.b52two.org/SirMichealJayWitnessstatement290604.pdf

9. See http://www.tridentploughshares.org/article1080

10. George Monbiot, 30th July 1996. Hawks and Doves. The Guardian.
http://www.monbiot.com/archives/1996/07/30/hawks-and-doves/

http://www.zmag.org/content/showarticle.cfm?SectionID=51&ItemID=11224