<nettime> Geoffrey Robertson: The Case of Tyrannicide

["geert lovink" <geert@xs4all.nl>]

New Statesman
September 23, 2002

The case for tyrannicide

It is not an international crime to possess nuclear weapons. We need new
laws to deal with despots who violate human rights, argues Geoffrey
Robertson

Geoffrey Robertson

   In the 1960s, the White House coined the term 'peace offensive' as a
euphemism for its war on Vietnam. Today, by 'regime change' in Iraq, it
means killing Saddam Hussein.  The case against him does not hinge upon
his breaches of UN resolutions, which have been condoned by most members
of the Security Council. His malignancy is to be inferred from the
brutality of his dictatorship over his own people.  There is a precise
word for what parliament will soon debate, and it is not regime change.  
It is tyrannicide.

   The last time that parliament formally approved tyrannicide - indeed,
defined it as a duty rather than an option - was in 1649, when the rump
parliament had Charles I executed as a tyrant for murdering his own
people, committing war crimes and behaving like an absolute dictator.
Milton (who served Cromwell in the office of Alastair Campbell) argued
that killing a ruler who turns on his own subjects is moral, as well as
poetic, justice.  Although this cut little ice with the public (who
preferred the sentimental royalist spin about Charles the holy martyr),
the puritan justification for tyrannicide remains.  Who now criticises von
Stauffenberg (other than for ineptitude) in his attempt to blow up Hitler,
or castigates the Romanians who killed Ceausescu? But is this just 'cruel
necessity' - as Cromwell apocryphally muttered over the king in his
coffin? Necessity may know no law, but it is the nature of ordered society
to find some legal basis for lethal acts, however utilitarian the purpose
they serve. Just as we look to domestic courts to find justifications
rather than excuses for doctors who turn off life-support machines, so
internationally we require precedent or authority for the use of force
against an independent and sovereign state.

   In Kosovo, despite the absence of any Security Council mandate, Nato
discovered in international law a 'right of humanitarian intervention'. To
justify its attack on Afghanistan in response to 11 September, Washington
invoked the right of self-defence, expressly preserved in Article 51 of
the UN Charter.  If the Security Council does not authorise an attack on
Iraq (that is, if Russia or China casts a 'superpower veto'), the Bush
administration will rely on the so-called right of 'anticipatory
self-defence' - summed up by the phrase 'pre-emptive strike'.

   But the problem with legitimacy, as opposed to necessity, is that it
requires reference to some principle, or at least to a precedent. The
right of humanitarian intervention, for example, can be traced back to
British naval operations to end the slave trade. Self-defence, however,
has a classic definition, formulated by the US secretary of state Daniel
Webster after the British claimed it in justification of their attacks in
1837 on Americans who harboured Canadian rebels.  It legitimates only an
immediate response to an actual act of aggression; it certainly does not
sanction 'anticipatory' or 'pre-emptive' use of force. In the example
commonly given to law students, the US would in 1941 have been entitled to
sink the Japanese fleet the moment it was ordered to set sail for Pearl
Harbor, but not to strike it 'pre-emptively' out of suspicion that the
order might be given.

   So the UN Charter's right of self-defence does not legitimate any US
attack on Iraq unsanctioned by the Security Council, unless and until
Saddam actually acquires nuclear weapons and makes preparations to use
them against the US.  There is no fact likely to emerge from Tony Blair's
dossier to show that Iraq is planning to attack the US or the UK: it will
show Saddam to be evil but not suicidal.

   These limitations on the right of self-defence may seem irksome, but
they have the benefit of disallowing an entirely subjective judgement by
the self-defender bent on launching a pre-emptive strike before there is
anything to pre-empt. It was Goering's argument at Nuremberg that Germany
alone could decide when to go to war in self-defence, and it was rejected
by the court: 'whether action taken under the claim of self-defence was in
fact aggressive or defensive must ultimately be subject to investigation
and adjudication if the international law is to be enforced'.  So this
'right' of anticipatory self-defence without Security Council mandate does
not exist;  if it did, it would be carte-blanche for aggression.

   But the limitations on self-defence may be counterbalanced by the
development of international human rights rules - in particular, the
doctrine that breaches of sovereignty (and inroads on sovereign immunity)
may be justified in order to stop or to punish the commission of crimes
against humanity.  This was the basis for humanitarian intervention to
stop ethnic cleansing in Kosovo. It also serves (more appropriately than
the claim of US self-defence) to sanction the US overthrow of the Taliban
government, which plainly aided and abetted al-Qaeda's campaign of racist
attacks against Americans (and anyone else who got in the way) culminating
in 11 September.  Can this principle also provide a warrant for removal of
Saddam Hussein - with or without UN approval?

   The answer is yes - up to a point.  Turn to the Genocide Convention of
1948, which imposes a duty on parties to punish the leaders of states that
engage in ethnic mass murder, and expressly envisages the establishment of
an international court to try them.  As Tony Blair, quoting Amnesty
International, forcefully reminded the TUC, Saddam's persecution of the
Kurds in the 1980s left more than 100,000 dead. It culminated in the
mustard gas massacre at Halabja in 1988, with 5,000 dead and 9,000
wounded.  This is clear evidence of genocide and it was a crime against
humanity at the time it was committed. So retrospective prosecution before
a special court set up under the convention would be entirely in order.  
America's opposition to the International Criminal Court does not extend
to special tribunals, and it is actually a party to the Genocide
Convention - President Reagan ratified it hastily in 1986, in response to
criticisms of his visit to Bitburg cemetery with its SS graves.

   The practical merit of a special genocide court would be to provide
somewhere to put Saddam if he was captured alive.  Suppose the US invades
Iraq (with or without Security Council approval) and the man comes out of
a bunker with his hands up.  Is he then to be exiled to St Helena, like
Napoleon, or to its current equivalent - the legal limbo-land of
Guantanamo Bay?  Is he to be invited to form a political party and to
stand in UN-sponsored democratic elections?

   If the Security Council falters, it follows that an operation to
'snatch' Saddam could legitimately be mounted by any party to the Genocide
Convention. Whether it would succeed is another matter (there are reported
to be a dozen Saddam Hussein look-alikes in Baghdad palaces and command
bunkers, awaiting just such an eventuality). And for all the importance of
enforcing the Genocide Convention, however belatedly, it must be doubted
whether the principle of proportionality could justify an all-out war,
costing many innocent lives, to put a dictator in the dock. (The Serb
people, by continuing to support Milosevic, took the risk of reprisals for
his breaches of international law: the Iraqi people have had no such
choice.)

   If the Genocide Convention is thought inadequate to justify a
unilateral invasion of Iraq, what alternative legal basis can be found? It
is not an international crime to possess nuclear or chemical weapons. The
only answer, therefore, is a new international right to act against
tyranny.  That was certainly the message of President Bush's address to
the UN.  He spoke in terms that Milton and Cromwell would have approved,
urging that 'liberty for the Iraqi people is a great moral cause'.  He
dilated upon evidence, culled from Amnesty and Human Rights Watch reports,
of the all-pervasive repression of the Iraqi people - arbitrary arrests,
secret detentions, summary executions, torture by electric shock,
mutilation and rape.  In other words, human rights violations have reached
a point that justify international action to overthrow the regime,
whatever UN inspections may reveal about its development of weapons of
mass destruction. This is the case for assisted tyrannicide.

   In 1649, parliament and its lawyers had no difficulty in defining the
crime of tyranny, but even they realised the need for a trial before
execution.  We now have an International Criminal Court to punish 'crimes
against humanity', but this offence does not include running a despotic
government that commits widespread human rights violations.

   There is much to be said for the creation of a new international crime
of tyranny but nothing to be said for installing the American president as
its judge, jury and executioner.  It would require an independent human
rights court to examine the evidence, before a verdict that would provide
a legal justification for forcible regime change.  There is little doubt
that Saddam would be convicted.  But so, too, would be our new friend
Colonel Gaddafi, along with the juntas in Burma and North Korea.  The
rulers of Turkmenistan and Liberia might not be able to put up much of a
defence, and it could not be long before someone contemplates a
prosecution against the royal house of Saud.

   The ultimate goal of the human rights movement should be to eliminate
all rulers who abuse their power by comprehensively violating the
liberties of their subjects. But this calls for an international
convention against tyranny rather than a declaration of war against the
first tyrant to stiff the US. As our parliament discovered in 1660, the
problem with tyrannicide is that it can look to later generations very
much like martyrcide, and provide the argument for a restoration.

/Geoffrey Robertson, QC is the author of Crimes Against Humanity: the
struggle for global justice, second edition published this month by
Penguin/





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