A polite and suited rebellion

I went to the “lawyers against war” rally yesterday. I have to admit it was the kind of protest I’ve been holding out for – some considered, well-articulated legal opinion about the current war. Unfortunately, other than local television, it appears to have attracted no media coverage. Possibly because there were no scuffles with police that could be turned into an emotional cliché-ridden beat-up.

This rally was, unmistakeably, a congregation of lawyers. Organisers reminded us we were standing at the Supreme Court steps and people might need to get in or out, so could we not obstruct the steps, please? Could we also remember it was a public pavement and others had a right to pass?

We spilled out onto the street, as far back from the as the tram-tracks and several people deep the full length of the Court building. I’d guess there were around 300 lawyers there at least.

We were heckled a little by some driving by, largely incomprehensibly.

I did catch: “Bob Brown, Saddam’s clown!” Which had a nice ring to it, even if it would better have been directed to a protest, y’know, featuring the Senator himself.

For reasons of space, I’m going to restrict this report to the first three speakers. The fourth was the Slater and Gordon partner derided by Janet Albrectsen for accepting a brief to monitor any Australian complicity in any US war crimes that might be committed in Iraq. (See the excellent coverage of that issue in fridaysixpm’s “Even during wartime, lawyers are the scum of the earth”.) The final speaker was the head of the community justice network in Victoria.

Of the speeches that caught my attention, Professor Gillian Triggs kicked off with a couple of simple axioms about international law that I’ll paraphrase as best I can.

First, the UN charter contains a ban on the use of force in international affairs. That ban admits only two exceptions: where the Security Council authorises action to preserve international peace and security, and self-defence.

Self defence, at international law, must be in response to an armed attack or an imminent threat of an attack. Iraq, contained as it is, provides neither.

She gave her opinion on the 14 UNSCRs outstanding against Iraq – saying that on the fairest reading she could give them there was nothing authorising the present action. (Thus it appears Professor Triggs would agree with Colin Powell’s (pre-war) view that UNSCR 1441 contained no “hidden triggers” for war.)

Her answer to the question, “what happens when permanent members prevents any resolution passing?” was one of utter probity. That situation calls for law reform, not breaking the law. These are the international legal structures in place and we are pledged to abide by them. That is what the rule of law means: working with the system, not arbitrarily abandoning it.

Chris Maxwell QC, former president of Liberty Victoria, spoke next. I’ve seen Mr Maxwell’s work in court and he has a great, punchy oratorical style.

He applauded the courage of both senior legal advisers to the Blair government who have fulfilled their professional ethical obligation to stand for the rule of law by resigning over the British position that the war is legal, and of Australian academics who have come out against the war, given – in his phrase – the present government’s “vindictive” approach to university funding.

He also made the point that – despite public opinion – the government has now irretrievably implicated Australia in this war. We therefore have a moral obligation to contribute to reconstruction, but as yet the government has pledged no funds for it.

Reverend Tim Costello, about the only Australian religious commentator whose views I can not only stomach, but admire, delivered a brief excoriation of the Christian theory of redemptive violence (that violence itself is neutral and assumes its character from whether it is used by moral or evil people), a theory he decried as “madness”. (He did not have to join the dots to the ideological-religious views of the man in the White House.)

He also spoke of the “rule of law” as the great bulwark against human insecurity, and the fear of random violence. A fear that most of the world has always lived with, and that the US has lived with since 11 September. He was very clear that he did not blame the American people for feeling that insecurity, and he did not deny that the national psyche has been deeply traumatised – but almost uniquely among western powers the US has never suffered casualties or an attack on its mainland prior to the 11 September tragedy. From that perspective, the Bush administration’s response is understandable – but entirely short-sighted. He neatly summarised the dangers of a doctrine of pre-emptive strikes with the hypothetical, “What if China feels threatened by Taiwan?”

He also referred to the appalling piece of legislation passed by the US congress pre-authorising an invasion of the Hague and a commando “extraction” of any US soldiers ever tried before the new International Criminal Court. This despite the fact that under the ICC statute the first and preferred option is that war crimes trials be conducted by the country of the alleged offender’s nationality and the ICC has jurisdiction only when a nation is “unable or unwilling” to prosecute its own. (For a semi-satirical response to this obscenity, see this site and its call for a civilian militia units to defend the Court from any US invasion.)

Anyway, Costello had picked up on the central theme put forward by Maxwell and Triggs that was sure-fire seller with this audience: the rule of law. The basic point being, of course, that if we can’t persuade the world’s weaker powers that there is a stable, rules-based system governing international affairs capable of restraining the world’s dominant powers – why would they bother participating at all?

Pre-emptive, unilateral intervention provides a clear threat to the security of weaker powers, who will respond by arming themselves with the most devastating weapons they can afford. The example already set by India and Pakistan’s efforts to join the “club” of nuclear powers. This war is meant to provide a more stable, secure world, but its unilateral, arbitrary nature promotes exactly the opposite.

What the rule of law has to offer, if abided by and promoted, is stability and some security. It will never be perfect, but it’s a hell of a lot better that the rule of force.


I hope to have better comments installed in time for (yet again) a blog next week on reconstruction and humanitarian issues in Iraq.