by Kevin O'Neill, LLB, MSc

Abstract

Often, when a murder convict awaits judicial execution in the United States, some death-penalty opponents will be heard to utter a slogan such as: “What is done is done – the evil is in the past”. Through this they hope to persuade the listener that the carrying out of a capital sentence at this stage would be purely vindictive. As we quickly approach the first anniversary of the end of the War against Saddam – universally recognised to have accomplished the good of removing a wicked tyrant from power – there appears to be no let up in the attempts by some persons to in some way “punish” the leaders of those nations that fought it. The following letter provides just one example of the kind of selective justification employed in this process.

“Illegal and Immoral War”, Letters to the Editor, The Daily Telegraph, 03/03/04

Sir – You state that the “concept of legal war. . .is a new and nebulous one” (Leaders, Mar 2). In truth, the idea is extremely ancient.

The Romans, for instance, had the “fetial law”, which laid down strict procedures that had to be followed for a war to be “just” in a purely legal sense.

Although this subsequently fell into abeyance, the distinction between legal and illegal war was firmly established. Roman generals who started wars illegally could be, and indeed sometimes were, prosecuted for their crimes.

The concept of legal war has been in active use from that time to today. Contrary to what you say, people did question the legality of military action both against Iraq in 1991 and against Yugoslavia in 1999.

It is also a mistake to draw such a clear distinction between the legal and moral justifications for war. In signing the UN Charter, states pledged not to use force except with the UN's sanction, and they are under a moral obligation to respect that law which they themselves created.

Furthermore, international law is of such importance that it has a moral value in and of itself. An illegal war is almost certainly an immoral one.

From:
Dr Paul Robinson, Assistant Director, Centre for Security Studies, University of Hull

An Open Reply to Telegraph letter, “Illegal and Immoral War”, from The Blast

Sir – Pace Dr. Paul Robinson, the equating of law – international or otherwise – with morality can never be entirely sound. For one thing, it would prohibit any attempt at law reform. With reference to Roman law, the Institutes of Justinian clearly state that “Slavery. . .is an institution of the law of all peoples [ius gentium]; it makes a man the property of another, contrary to the law of nature” (1.3.3; Justinian's Institutes, translated by Peter Birks and Grant McLeod, Duckworth, 1987).

The following quote from Frederick H. Russell's The Just War in the Middle Ages is also worth noting in the light of Dr. Robinson's observations:

“[T]he Roman just war entailed legal consequences favorable to the Romans, for the declaration of war abrogated any obligation to respect the enemy's rights. As total war the Roman just war countenanced capture of civilians, devastation of land and plundering of cities” (CUP, 1975, p.7).

With regard to treaty law, quoting Black's Law Dictionary, U.S. Senator Daniel Patrick Moynihan has noted that: “An ancient doctrine (going back at least to Grotius) is rebus sic stantibus, which denotes a 'tacit condition, said to attach to all treaties, that they shall cease to be obligatory as soon as the state of facts and conditions upon which they were founded has substantially changed'” (quoted in Coercing Virtue, Robert H. Bork, The AEI Press, 2003, p.44).

The obligation to obey law is a moral, not a legal one. (The latter argument would be circular.) Where an agreement or contract is being used to enforce an immoral purpose – such as the preservation in power of an evil regime – it does not bind. To suggest otherwise would be absurd to say the least.

Back to top

Return to “War against Saddam”