Iraq and the Defense of Political Necessity (Updated)

There is a fascinating article in the Guardian (UK) today discussing a number of UK criminal cases in which defendants charged with destroying or vandalizing military property were able to use the illegality of the Iraq war to argue the defense of necessity. An Irish case is particularly striking:

Last year, five peace campaigners were acquitted after using an axe and hammers to cause $2.5m worth of damage to a plane belonging to the US navy. When they attacked it, in February 2003, it had been refuelling at Shannon airport on its way to Kuwait, where it would deliver supplies to be used in the impending war. The jury decided that the five saboteurs were acting lawfully.

A similar case took place last month in England, involving two anti-war activists who broke into a Gloucestershire RAF base and damaged more than 20 vehicles that were being used to load bombs onto American B-52’s. Charged with criminal damage, the defendants claimed to be putting the U.S. on trial. The jury deadlocked.

Interestingly, although the defendants in the English case were not allowed to base their necessity defense on the illegality of the Iraq war, they were allowed to argue that their actions were necesary to prevent the B-52’s from committing war crimes in Iraq — in particular, the release of cluster bombs and munitions tipped with depleted uranium. In defense of that decision, the court

cited section 5 of the 1971 Criminal Damage Act, which provides lawful excuse for damaging property if that action prevents property belonging to other people from being damaged, and section 3 of the 1967 Criminal Law Act, which states that “a person may use such force as is reasonable in the prevention of a crime”. In summing up, the judge told the jurors that using weapons “with an adverse effect on civilian populations which is disproportionate to the need to achieve the military objective” is a war crime.

By contrast, the illegality of the Iraq war was front and center in a recent German trial involving an insubordinate army officer:

This summer, the German federal administrative court threw out the charge of insubordination against a major in the German army. He had refused to obey an order which, he believed, would implicate him in the invasion of Iraq. The judges determined that the UN charter permits a state to go to war in only two circumstances: in self-defence, and when it has been authorised to do so by the UN security council. The states attacking Iraq, they ruled, had no such licence. Resolution 1441, which was used by the British and US governments to justify the invasion, contained no authorisation. The war could be considered an act of aggression.

These are fascinating, if troubling, cases. On the one hand, I share the defendants’ belief that the invasion of Iraq was illegal under international law. On the other hand, these “political necessity” defenses, as they are appropriately called, rarely if ever satisfy the formal requirements of the defense of necessity. At common-law, the defense requires six conditions be met:

• The defendant must have faced a “clear and imminent danger.”

• The defendant must have reasonably believed that his act would abate the danger he was seeking to avoid.

• The defendant must have have had no effective legal method to avert the harm.

• The harm the defendant sought to avoid must have been greater than the actual harm the defendant caused.

• The legislature must not have contemplated the choice of evils and specifically prohibited the defendant’s choice.

• The defendant must have come to the situation with clean hands — that is, the defendant must not have wrongfully placed himself in a situation where he would have to engage in criminal conduct.

Although the final three conditions seem to allow a defense of political necessity, the first three almost certainly do not — at least in terms of how they are normally interpreted.

First, in nearly all political necessity cases, the harm to be averted will not be “imminent” in the usual sense of the term. In the Irish case, the airplane was simply carrying supplies to Iraq; there is no indication in the article that the supplies were of an offensive military nature or were about to be used for offensive purposes. In the German case, there is no indication that the officer was specifically ordered to commit an illegal act. And even in the English case, where the first element is stronger — after all, the defendants damaged vehicles that were being used to load bombs onto B-52s — the harm to be averted still wasn’t genuinely “imminent,” because it is unlikely that the B-52s were going to immediately use the bombs to commit war crimes. In that sense, the British case seems similar to one decided by the Supreme Judicial Court of Massachusetts, in which the court refused a necessity defense in a case involving an AIDS activist who violated state law by distributing clean hypodermic needles to drug addicts. In the court’s view, the harm to be averted — the spread of AIDS — was not immiment in any of the situations in which the needles were actually exchanged, as the defense of necessity required.

The second element is even more problematic. The defendants in the vandalism cases could not have reasonably believed that their actions would end the Iraq war or prevent the U.S. from committing additional war crimes; the U.S. has numerous planes and even more bombs. Vandalizing war material to protest an illegal war is not like the inmate who escapes from prison to avoid being killed by an out-of-control fire — the prototypical case for the causality element. Similarly, the German officer could not have reasonably believed that Germany’s illegal involvement in the Iraq war (the article doesn’t say what kind of involvement the officer was protesting) would come to end as the direct result of his insubordination.

The third element is the most problematic of all, at least insofar as the vandalism cases are concerned. Although the defendants in those cases were no doubt unhappy with the British government’s support for the Iraq war, they certainly had legal means to try to end it — the ballot box being the most obvious example. (The German officer, by contrast, is on firmer ground here; it is not clear that he had an alternative to refusing to obey the ostensibly illegal order.)

Although I find this legal analysis convincing, I still find myself sympathizing with the defendants in all of the cases. Scholars normally offer three rationales for recognizing the political necessity defense, two relating to democratic participation and accountability, and one relating to individual culpability:

• The defense creates a forum in which ignored minority or unheeded majority views receive a public hearing.

• The defense allows jurors to “weigh in” on the merits of a controversial issue by nullifying the law.

• The criminal law should not be used against individuals who, unlike “ordinary” criminals, act non-violently because of the dictates of their conscience.

All of those rationales have their merits, especially the culpability rationale. And I don’t find the “go vote” response particularly convincing, given how little impact the overwhelming public opposition in the UK to the Iraq war has had on the British government. Still, none of the rationales make a compelling legal case for expanding the necessity defense beyond its traditional parameters. The first two rationales are political, not legal. And the culpability rationale seems better addressed — as it often has been — at sentencing.

In the end, then, I think my position comes down to this. If I were a judge, I would not permit a defense of political necessity. But if I were a juror, I would acquit in a case that involved one.

Thoughts from our readers?

UPDATE: My thanks to Tobias for the additional information (in the comments) about the English and German cases. I should have made clear in the post that the cases did not necessarily involve the political necessity defense themselves, but simply raised a number of important issues that frequently occur with the defense. As Tobias indicates, for example, the statute at issue in the English case requires not only consideration of legal alternatives, but also an assessment of the reasonableness of the “defensive” act — an assessment that clearly involves balancing the harm of the act against the harm to be avoided. Similarly, in the German case, it seems clear that the court was balancing the harm of refusing the order against the harm of forcing an officer to take part in an illegal war, a political-necessity-like inquiry; it is difficult to believe that the administrative court would have allowed the freedom of conscience defense had the judges believed the war was legal. But again, I should have been more precise.