All the opinion polls about a war with Iraq show that a majority of Australians are willing to go to war if it is sanctioned by the United Nations, but if it is not the majority drops off dramatically to much less than half.
At first blush it might seem illogical. A war is a war is a war. Civilians will die. Huge damage will be caused. There will be a danger of unintended consequences – like a quick spread of war to embrace many nations (as happened in World War I). So what does it matter if it has UN sanction or not? The practical effect will be the same.
But practicalities aside, the polling reveals some sound reasoning and sentiments. It shows that Australians have a marked respect for the rule of law. In the international arena, the rule of law had little meaning until 1945 and even now seems fairly vague. But the polling shows people see that there is a parallel between the behaviour of nation states and the behaviour of individuals within those states.
Within liberal-democratic nations the rule of law is fundamental. Laws are promulgated by a parliament of representatives of the people and are applied to all (including members of the government) by an independent judiciary. Even judges are called to account by the rule of law. A trivial example is that when caught they pay parking fines.
The rule of law, therefore, replaces arbitrary rule under which individual leaders apply force at whim and impose decisions without reference to law. The arbitrary ruler can favour one and victimise another. In places where the rule of law has replaced arbitrary rule, people have had more peaceful, predictable lives. The rule of law is a Good Thing.
A critical part of it is its impartial administration. Those who assert a law has been broken and want to see misconduct punished or remedied take their case to a court which makes a ruling. X should pay damages to Y or X should pay a fine or be issued with a fishing licence or whatever.
The impartial ruling replaces the urge for an aggrieved person to go and take by force what they think is theirs or to punish by force for wrongs they think have been done to them.
We have seen in the past couple of hundred years how this fairly elementary arrangement has dramatically improved the lives of people within liberal-democratic nation states.
But make no bones about it, the rule of law, to be effective, must be backed up by force. Police must be able to arrest and courts must be able to fine, jail and award damages and if the damages are unpaid courts must be able to force the seizure and sale of goods or jail for disobedience. Without force, the rule of law is naught.
Let’s put that in an international context, using Iraq as an example.
A general principle of international law says that nations can defend themselves against attack or imminent attack and can take part in any UN-sanctioned military campaign against the forces of another country. Beyond that there is no excuse for war. President Bush’s notion of a defensive pre-emptive strike is legal twaddle.
On the war-crime front, we have the Geneva conventions, the Hague statutes of the International Criminal Court and the precedents of the 1945-46 Nuremberg trials (after which 12 Nazis were hanged) and the 1948 trials of Japanese military leaders (after which seven men were hanged). Some nation states have tried people for war crimes under their own law, notably Israel, France and Cambodia.
The crimes involve excessive civilian causalities, willful unnecessary killing of civilians, torture, systematic rape, genocide and so on. And there is a Nuremberg precedent for the crime of waging an aggressive war.
So what if Australia joins the Coalition of the Willing and invades Iraq without UN sanction? Individual Australian soldiers who conduct themselves within Australian military rules should have no difficulty. Besides the Australian Attorney-General must consent before any Australian is sent to The Hague.
However, members of the Australian Government, particularly the Prime Minister and Defence and Foreign Minister, might run into difficulty after an Iraqi war when visiting other countries. There might be a remote chance of a civilian attempt to detain them for waging an aggressive war. Indictments can go to the highest level of government as this week’s 11 year sentence to former Bosnian Serb president Biljana Plavsic shows. Also, indictments are not reserved for losers, as the attempt to indict Israeli Prime Minister Ariel Sharon in Belgium shows.
However, the chance of a leader being indicted becomes more remote if the war is conducted within standard military codes.
War crimes aside, the unease revealed in opinion polls in Australian and Britain is directed at war without UN sanction. People want legality. They see Bush as taking the law into his own hands. Within nation states that is a recipe for anarchy and violence. It is precisely why we have the rule of law – to stop violence and property-taking in the name of revenge.
Bush is now making all the excuses of a person who takes the law into his own hands – he is “stopping evil” that can be stopped no other way or punishing because institutional punishment has failed.
But however horrible Saddam Hussein is, that is no solution. The pity is that the UN is taking so long to realise that sometimes the effective application of the rule of law requires force. Maybe not a full-scale invasion yet, but at least troops going in with the weapons inspectors.
In the meantime, Australians’ unease at joining an unlawful invasion is understandable.