Iraq and the Defense of Political Necessity (Updated)

by Kevin Jon Heller

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.

5 Responses

  1. OK, some thoughts.

    Lynch mobs and riots are not improved by being large, and there is a point at which resiustence is the only rational alternative.

    There is also a point beyond which politicians, lawyers, and judges are just criminals like any other criminal, and for me, those limits are defined with a fair degree of accuracy by the London Charter of the IMT (1945), Geneva 1949, and Hague IV 1907.

    Mr. Bush, his gang, and his party are over the line. The simple truth of the matter is that the United States no longer has a completely legitimate Government: the executive branch and Congress are BOTH criminal organization. That isn’t to say that everything they do is criminal or that every member is a criminal, but facts are facts and crimes are defined by their elements.

    Iraq was a crime from the start and it remains a crime today. Mr. Bush and Mr. Cheney are not fighting terrorism, they are practicing it.

  2. Let me add: they aren’t even good at it. With enemies like them, who needs friends?

    Bush and Cheney are the best weapons that Al Qaeda has. Stupid, greedy thugs.

    One of the most amazing things about folks like Rove and Cheney is how they convert raw intellience into malicious stupidity… starting with their own warped little cunning minds.

  3. With the greatest respect, the analysis at common law is, while convincing, somewhat beside the point with regard to the British case, and certainly the German one.

    The British case is, so I would assume, the same case in which a preliminary issue went all the way to the House of Lords, which delivered judgment on 29 March 2006: see R v. Jones (Margaret) [2006] UKHL 16, [2006] 2 WLR 772.

    The defence in that case was (to be) based on statute, not on common law. Section 3 of the Criminal Law Act 1967 provides as follows:

    “(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large

    (2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.”

    The House of Lords decided in the case cited that the crime of aggression, while existing as a matter of customary international law, was no part of English law, and that the defence under s. 3 was accordingly not available in the context of the prevention of any crime of aggression.

    The trial judge seems to have interpreted this as preserving the argument that the acts of criminal damage were intended to prevent war crimes, which undoubtedly are part of English law (cf. para. 28 of the House of Lords case).

    This seems to be a reasonable reading of the case, except possibly for one other element, which may well be an obiter dictum: Lord Hoffmann (at paras. 70-94 of his speech) also developed another element of the defence, namely the requirement that the defendant should first have sought help from the state, and, if such had not been forthcoming, that he might just have to accept this, respecting the monopoly of the state on the use of force. Such was His Lordship’s answer to the fundamental question in the law relating to the right of self-help “whether one judges the reasonableness of the defendant’s actions as if he was the sheriff in a Western, the only law man in town, or whether it should be judged in its actual social setting, in a democratic society with its own appointed agents for the enforcement of the law.”

    I don’t know why the trial judge has decided not to disallow the defence under s. 3 on this point.

    Anyway, apart from this requirement possibly inherent in the statutory scheme, read with the basic constitutional arrangements of the UK and any other non-failed state, the defence would appear not to depend on the points identified by Prof Heller (unless they were read into the requirement of ‘reasonableness’, which might, however, disregard s. 3(2), with its specific intention to replace the common law).

    The British case may therefore not be subject to the criticism levelled at it by Prof Heller, or at least not within the confines of its own applicable law.

    It may therefore also fail to be of great value in any comparative exercise.

    As for the German case, this was certainly an oddity.

    The defence accepted by the Federal Administrative Court (in its capacity as the supreme court of disciplinary appeals for the military) was that the order violated the major’s right of freedom of conscience under Article 4 of the Federal Constitution. The major strongly objected to the Iraq war on moral grounds, so he was not required to contribute to it.

    The rest of the judgment is rather more difficult to explain, except by noting that one of the judges is a noted scholar in international law, and may therefore have held similarly strong feelings about the legality of that war.

    The judgment went on to say that the major’s decision of conscientious objection to the war and to this order was reasonable. This is not, so far as I know, any known requirement of Article 4 of the Constitution, but it allowed the Court, certainly on its own view, to explain why the opinion that the war was illegal under international law was tenable.

    The Court did not in terms do more than decide that such an argument was tenable and therefore reasonable, but its reasoning read more like a very definitive statement, in that it went to great lengths and considered a plethora of points (none of which had probably ever been argued before it).

    The Court continued to find that all and any acts of support granted by Germany to the US and the UK in their preparation for war were illegal as assistance of a breach of international law by another state (Article 16 of the ILC Articles on State Responsibility) and violated the law of neutrality in war. (This was clearly more immediately relevant to the orders of the German major than the legality of the acts of war as such)

    In short, the Court did not in fact apply any necessity argument, but held that the major’s conscientious objection allowed him to refuse to execute his orders. (Such objection was also held to be reasonable on the grounds of the various problems in international law that the US and UK faced; this was the extent of the import of international law in this case. In fact, on another view of the relevant German law, international law – and with it most of the judgment – was utterly immaterial to the case at bar).

  4. To move from the international plane to the domestic front of municipal law: I recall some years ago, as a member of the anti-nuclear Abalone Alliance in California opposed to the Diablo Canyon Nuclear Power Plant (we lost), the defense of necessity was entertained by many in the movement, hoping to avoid incarceration for what were, clearly, illegal actions. I was adamantly opposed to this defense principally because it went againt the theory and practice of civil disobedience many in this nonviolent social movement had made prior commitment to, indeed, it marked a startling departure, by my lights, from a tradition of nonviolent activism with well-nigh impeccable pedigree and integrity in American history. If I recall correctly, it was left to the various ‘affinity groups’ to decide how they (we) would engage in civil disobedience, some clearly preferring to invoke the necessity defense if their cases came to trial. I will not explore this any further here, but I’m not very fond of the strategic decision and tactics used by the protesters above for this very reason, namely, it is contrary to a well-established if not effective tradition of civil disobedience from Gandhi through the civil rights movement and beyond. Of course one can define civil disobedience in a way that would embrace such protest tactics, but I think it raises insuperable ethical and political problems regarding democratic theory and practice. And of course, they have not met the conditions set out above for the political necessity defense. In short, I think the political necessity defense should be examined in light of the theory and practice of civil disobedience, an examination that will find such a defense troubling, and not at all compelling. The culpability rationale is best addressed at sentencing, and I think that while the fact that such activists breaking the law are not on par with criminals, what matters is the law-breaking as such, in which case it’s best to plead guilty and accept the responsibility for such law-breaking, in the best traditions of (nonviolent) civil disobedience.

    If I were a juror, I’d convict, but I’d also listen carefully to reasons such activists cite for their actions, i.e., they would have been successful at least in some measure in attaining a public hearing for their cause.

  5. I wonder, given the wording of the Irish law, if an abduction of US servicemen (nominally, to stand trial) for supposed war crimes would also have been legal?

    The law simply seems poorly worded, especially given that no one has conviced the US armed services of anything. One should think the law should be limited to the convicted or those in the immediate act of committing a crime. It seems as currently worded to essentially give license to vigilantism against any who are perceived to have violated the law by any given minority.

    The court can hardly be blamed for an absurd conclusion from a correct reading of an absurd law.

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