by George Farebrother

The extract from Henry V provides a useful springboard for any discussion about political and moral responsibility for war. It arises from the king's visit to his troops on the eve of Agincourt, in disguise. The two soldiers, of course, are not familiar with the Nuremburg Principles, but it does help to put the responsibility of present-day leaders into perspective. If various dossiers were "sexed-up" then this is more important even than lying to Parliament and people; we are talking about death and suffering, blood and dismemberment, crime and punishment.

Recent events concerning Iraq have important implications at various levels for peace activists. Like an onion the cores are concentric and peeling off each layer brings us steadily closer to the heart of the matter. The analogy also suggests that the process could result in tears.

Layer 1. The media have been full of the Hutton Inquiry. The events leading up to the tragic death of Dr. David Kelly have provided important insights into the way that the Government works, thinks, and presents itself. The media, however, have tended to treat this as a contest between the BBC and the Government. The public is probably not taken in by this and sees it for what it is - a symptom of a much deeper malaise.

Layer 2. The Hutton Inquiry has certainly impinged on a much more important issue, in spite of the hope by the Government that its range should be very restricted indeed. It is therefore not surprising that there are demands for a full judicial inquiry into the more serious questions: whether the intelligence information in various dossiers was hyped up; or whether, indeed, the original intelligence about Iraq's weapons of mass destruction (WMD) was unreliable. If so, our leaders would be accountable for the invasion and devastation of a sovereign state without just and sufficient cause. Whether the Government was actually lying to Parliament and the country, or whether Ministers were simply deluding themselves and seeing what they wanted to see in the evidence, is an interesting psychological issue; but it does not alter the fact that international law might have been violated.

Layer 3. The doubts about the legality of the invasion of Iraq reveals an important democratic deficit in our country. The Royal Prerogative permits the Prime Minister to initiate war with no parliamentary or judicial check. Cosmetic debates do take place but these are not allowed to influence the real decisions. Attempts to hold the Government to account through the Courts come up against the refusal of judges to apply the law to matters of foreign policy or defence.

THE JUST WAR

With the exception of a strand of militarism which lauded war as a source of heroism, self-sacrifice and other admirable qualities, Western thinkers have recognised that the pity and terror of war is an unqualified evil. Most of them have also allowed that war is sometimes necessary in order to prevent an even greater evil. They have therefore built up a "Just War" doctrine which attempts to limit both the occasions of war and its conduct. This tradition was augmented by Enlightenment thinking, which tended to emphasise the sheer irrationality of war. It underwent considerable development in the twentieth century due, mainly, to two devastating world wars. By this time the Just War tradition, whose most important monument is the United Nations Charter, went a long way towards outlawing war except under very limited circumstances.

One of the circumstances in which lawful military action is permitted is authorisation by the UN Security Council. Much of the discussion around the invasion of Iraq has been based on the interpretation of UN Security Council Resolution 1441 of November 2002. On the eve of war the Attorney General claimed that earlier Resolutions on Iraq, dating from the first Iraq War, were a sufficient basis for invasion. Much informed legal opinion has opposed this, arguing instead that a further Security Resolution was needed. The US, the UK and Spain did table a further Resolution prior to the outbreak of war, but when the Security Council failed to endorse this, the Coalition initiated hostilities against Iraq in any case.

In some ways this is a narrow legal point, but it has, in fact, become the occasion for a crisis in the UN and an indication that international law can be ignored when it is convenient for a small group of powerful states to do so.

Layer 5. There is a deeper problem which has not been fully faced. During the lead-up to war many peace activists based their anti-war arguments on the need for a further Security Council Resolution. However, there was rather too little discussion about whether such a Resolution would have validated the invasion. Such a Resolution would have been legally questionable if it did not conform to the UN Charter which is constructed to secure peace except under the most extreme circumstances. It is not clear that all peaceful options had been fully explored and it is arguable that the inspectors appointed by the UN had not been given the opportunity to complete their task.

Those setting the agenda for war tended to create false oppositions. Most crudely, this came down to "if you are not for us you are against us". They also tended to presuppose a choice between full scale war and letting Saddam "get away with it". However, are many gradations between these extremes, some of them involving military action, some not. It is not clear that the military action eventually resorted to, even if it had been endorsed by the Security Council, would have conformed to the rules of international humanitarian law, if the methods used were not necessary, proportionate or discriminate.

One eminent jurist, and former International Court of Justice judge, has suggested that Security Council decisions should be subject to judicial review by the International Court of Justice to ensure that its decisions conform to the UN Charter. As it is, the Security Council makes decisions which are all too easily politically motivated and not subject to the rule of law.

Layer 6. A great deal of work has been done by anti-nuclear activists to apply the Rule of Law to nuclear weapons. Such investigations often start on the basic assumption that nuclear weapons are dangerous, immoral and abhorrent. An individual, whilst rejecting nuclear weapons as a basis for security, might still accept the necessity of conventional war. We can characterise such a position as "nuclear pacifism".

Following the Advisory Opinion of the International Court of Justice in 1996 on the threat or use of nuclear weapons, World Court Project has argued that although the legal use of nuclear weapons might be possible in theory, it is almost inconceivable in practice. From the legal point of view, any particular nuclear weapons system, such as Trident, is found wanting. An extension of this argument suggests that the very existence of nuclear weapons is not merely illegal; it undermines the very concept of law itself. These views can be described as "virtual illegality".

At this point we are approaching the core of the onion, where the motives underlying our arguments about war and peace need careful examination. Many people accept that the moral arguments against nuclear weapons and the legal considerations applying to them, virtually converge. To say that nuclear weapons are wrong is almost the same thing as saying that they are illegal. It is therefore natural to apply this pattern of argument to war in general, without adopting a completely pacifist position. We can say that international law relating to the cause of war and its conduct, if taken seriously, makes it increasingly difficult to fight a "just war" under modern conditions.

It is arguable that since the UN Charter bans more or less all forms of intrastate violence, and has universal membership, it is now the cornerstone of modern international law. Any armed force which is lawful, cannot, therefore, be defined as war. If, on the other hand, actions ordered or permitted by the Security Council on behalf of the international community, do not conform to all the accepted rules of war, strictly applied and observed, they will ipso facto become illegal.

Such an argument would also consider the proper aim of war - to disable enemies and their capacity to wage war, and to destroy such capacity, which nowadays includes infrastructure and economic basis. Such sweeping activities cannot be proportional or otherwise conformable to the requirements of a 'just war', which therefore becomes impossible to achieve.

On the other hand we can make a mental reservation that a just war which conforms with the UN Charter is theoretically possible; it is simply that when any particular war comes along - Kosovo, Afghanistan, Iraq - to find it legally suspect. We can call this position "virtual pacifism".

Could virtual pacifism be a cloak for an unacknowledged real Pacifism? Are we using the law to support an agenda which attempts to make lawful war impossible? One of the problems with this is that legal arguments against war in general may not be as secure as legal arguments against nuclear weapons. Recent discussions about the legality of the invasion of Iraq do, indeed, provide very strong arguments against the policies of the Coalition governments. However, it is not so easy to show that the first Gulf War was illegal. It involved an attack on a sovereign state, and the military response received full Security Council endorsement. The Falklands war was by no means an open and shut case, and one would be hard put to it to show that the declaration of war on Germany by Britain in 1939 was illegal.

If there are limitations to what the law can achieve, it cannot deliver a full proscription on each and every war that comes along, let alone limited military action such as that in Sierra Leone, which falls short of the full scale use of military might, involving armour and extensive bombing campaigns. And where does this lead the concept of humanitarian intervention?

Layer 7. So how can we meet the fundamental pacifist objection to the use of the law by peace activists - that the concept of a "just war" and the rules of international humanitarian law make war acceptable. Efforts to limit the recourse to war and to humanise its effects are self-defeating. It is rather like attempts to formalise the beating of children with rules about when and how it could be carried out. It might be a well-meaning attempt to limit suffering but it would still accept child-beating as a policy - even if only in the last resort. A thorough-going pacifist would therefore reject Just War language.

Once we enter the legal arena we must do so without preconception. We must follow the law where it takes us without assuming that it will automatically deliver what, in our hearts, we really want.

At the same time we must take advantage of a developing norm which recognises that the law belongs to all of us and not merely to lawyers and governments. We can engage in quasi-legal action, such as the "shadow" inquiries which have taken place in various parts of the world during the last year. Those who are brave enough can peacefully and responsibly take direct action against nuclear weapons and facilities, thus upholding the spirit, and sometimes the letter, of the law.