Some Dialogues on the Present Crisis
The President and the Secretary of Defense have consistently expressed their belief that the destruction of Iraq’s oil fields by the Iraqi military would constitute a war crime. The Dialogist’s excellent mother and some experts in international law (according to the New York Times) disagree. What say you?
Thesis: Any act that conduces to the destruction of Iraq’s oil fields constitutes a war crime.
A. It long has been recognized in international law that a belligerent is forbidden to murder, steal, and pillage the enemy for non-military purposes. I refer specifically to Article 23 of the Hague Convention of 1907 on the Laws of War on Land, "Besides the prohibitions provided by special Conventions, it is especially prohibited...To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war" ( http://www.yale.edu/lawweb/avalon/lawofwar/hague02.htm#art23 ).
Surely, if the conventioneers had imagined that a military would destroy the property of its own side, they would have legislated against it. A law against murder implies a law against suicide.
B. Surely the conventioneers did imagine such a situation. Think of the loophole it would provide for them in time of war. Indeed, in the common law alone, where statute clarifies rather than legislates, is it true that a law against murder implied a law against suicide. Think about extending this principle. I have the right to “steal” my own goods or smash my computer to the ground without being punished by the law.
A. Your analogy fails in the quotation marks. The right to property gives one the right of use as well as destruction. Yet this right is not absolute. Building codes, for instance, limit use. The laws against arson limit the means of destruction. Yet I see your point that any argument must proceed not from analogy but from homology. We cannot take the common law and apply it to the law of nations, nor can we take personal law and apply it to the law of war.
Yet let us imagine that the British were about to take the city of Basra. Would it be lawful under the Hague Convention for Iraqi troops to mow down the civilian population on the way out?
B. Yes. Perhaps, it would be unlawful under the civil law of Iraq, but it is permitted under the Hague Convention.
A. Fortunately, agreements such as the International Covenant on Civil and Political Rights provide the Basrans such protection.
B. Yet, you’re still arguing from analogy again. Nowhere in any international agreement is provision made for the rights of the invader to undestroyed oil fields.
A. Then let us view this situation in yet another way. What is a jurisdiction?
B. Are you being silly?
A. Yes…and no, if you catch my drift.
B. Unfortunately, no one else will. Yet I will say that a jurisdiction is an authority that controls the means of law and violence within a territory under the sovereignty of a particular people established by oath, the policy of other jurisdictions, or the decision of a settled tribunal as we have described in a former dialogue.
A. Then what is a jurisdiction with respect to a particular people?
B. iurisdictio est feudum in se sed in iure populi A jurisdiction is a fief in itself in right of a people.
A. Hence, we both recognize a doctrine of popular sovereignty. Admittedly, our view of popular sovereignty is somewhat different than most, but let us continue this line of argument and see what follows. When is a fief in question?
B. When the civil authorities as represented by the courts do not function. I cite ex parte Milligan and Wolfe Tone’s Case as relevant authorities. Indeed, if a settled tribunal were to exist, a declaration of feudum in parte or feudum plenum to authorities designated by that court would be sufficient to call the fief of the jurisdiction into question.
A. In other words, such a tribunal could declare that the civil authorities were suspended in the first case or that the civil laws were suspended in the second case. The designated authorities then could enforce the civil laws until the tribunal determined further in the first case or help the people establish a new jurisdiction in the second case.
B. Indeed. Yet what would be the cause of such a declaration?
A. Gross breach and contempt for international agreements or gross violation of the civil laws by the civil authorities leading to the denial of life to many individuals of a particular people.
B. I am not sure whether a proper standard could be established.
A. For the moment, admit that it could. Imagine that the Republic of Iraq and the People of Iraq are legal entities and that the Republic of Iraq’s fief is in question.
B. All right. For the sake of argument…what is your point?
A. Not yet. Now let us talk about property. To whom do the mineral resources of a territory belong?
B. To whomever such property belongs in accordance with the civil laws of that territory.
A. Yet when a fief is in question, are the civil laws the final authority on any question of property?
B. No. When the civil laws have no force, the assumption is nulla iursdictio sine iustitia .
A. No jurisdiction, no justice. Yet the invading armies are bound by international law?
B. Yes.
A. They are not bound by their civil or military laws when those laws conflict with international law?
B. Yes.
A. Nor are they bound by the civil law of the territory invaded with respect to themselves, although they are bound to preserve the rights under the local civil law with respect to the civilian population? So says the Hague Convention?
B. Yes. That seems right.
A. Don’t go all Adeimantus on me. Then why are we to assume that it is equitable that the invaders are any more bound by international law than the other side?
B. Because that is the letter of the law. International law does not recognize any principle of equal protection of the laws, which I think you are trying to establish.
A. Good. I think we have established that Anglo-American conceptions of property, popular sovereignty, and equal protection of the laws are the justification for the President and the Secretary of Defense’s assertions that destroying oil fields is a war crime.
For:
1. Locke and his intellectual successors claimed that the right to life and the right to property were either linked inextricably or the same right. Hence, it would be easy to claim that a civilian population ought to be as free from the property appropriations and destruction of an invading army as the property appropriations and destruction of the defending one by analogy to a right to life that is protected by international law.
2. Americans theoretically recognize that the people are sovereign and have stronger collective rights than the rights of the government that have established. Hence, it is easy to claim that the mineral resources of Iraq belong to the Iraqi people.
3. Admittedly, equal protection of the laws has been used to protect corporations from government regulation or African-Americans from racism enshrined in law. Yet surely some concept of equal protection is the only way to take the letter of the Hague Convention and twist it to the needs of Bush and Rumsfeld. When the rights of two parties are in conflict, we all would like to assume that their differences are matters of fact rather than law. This is the isonomia of the Athenians taken to our American extreme.
B. You dirty scoundrel. You agreed with me all along.
The President and the Secretary of Defense have consistently expressed their belief that the destruction of Iraq’s oil fields by the Iraqi military would constitute a war crime. The Dialogist’s excellent mother and some experts in international law (according to the New York Times) disagree. What say you?
Thesis: Any act that conduces to the destruction of Iraq’s oil fields constitutes a war crime.
A. It long has been recognized in international law that a belligerent is forbidden to murder, steal, and pillage the enemy for non-military purposes. I refer specifically to Article 23 of the Hague Convention of 1907 on the Laws of War on Land, "Besides the prohibitions provided by special Conventions, it is especially prohibited...To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war" ( http://www.yale.edu/lawweb/avalon/lawofwar/hague02.htm#art23 ).
Surely, if the conventioneers had imagined that a military would destroy the property of its own side, they would have legislated against it. A law against murder implies a law against suicide.
B. Surely the conventioneers did imagine such a situation. Think of the loophole it would provide for them in time of war. Indeed, in the common law alone, where statute clarifies rather than legislates, is it true that a law against murder implied a law against suicide. Think about extending this principle. I have the right to “steal” my own goods or smash my computer to the ground without being punished by the law.
A. Your analogy fails in the quotation marks. The right to property gives one the right of use as well as destruction. Yet this right is not absolute. Building codes, for instance, limit use. The laws against arson limit the means of destruction. Yet I see your point that any argument must proceed not from analogy but from homology. We cannot take the common law and apply it to the law of nations, nor can we take personal law and apply it to the law of war.
Yet let us imagine that the British were about to take the city of Basra. Would it be lawful under the Hague Convention for Iraqi troops to mow down the civilian population on the way out?
B. Yes. Perhaps, it would be unlawful under the civil law of Iraq, but it is permitted under the Hague Convention.
A. Fortunately, agreements such as the International Covenant on Civil and Political Rights provide the Basrans such protection.
B. Yet, you’re still arguing from analogy again. Nowhere in any international agreement is provision made for the rights of the invader to undestroyed oil fields.
A. Then let us view this situation in yet another way. What is a jurisdiction?
B. Are you being silly?
A. Yes…and no, if you catch my drift.
B. Unfortunately, no one else will. Yet I will say that a jurisdiction is an authority that controls the means of law and violence within a territory under the sovereignty of a particular people established by oath, the policy of other jurisdictions, or the decision of a settled tribunal as we have described in a former dialogue.
A. Then what is a jurisdiction with respect to a particular people?
B. iurisdictio est feudum in se sed in iure populi A jurisdiction is a fief in itself in right of a people.
A. Hence, we both recognize a doctrine of popular sovereignty. Admittedly, our view of popular sovereignty is somewhat different than most, but let us continue this line of argument and see what follows. When is a fief in question?
B. When the civil authorities as represented by the courts do not function. I cite ex parte Milligan and Wolfe Tone’s Case as relevant authorities. Indeed, if a settled tribunal were to exist, a declaration of feudum in parte or feudum plenum to authorities designated by that court would be sufficient to call the fief of the jurisdiction into question.
A. In other words, such a tribunal could declare that the civil authorities were suspended in the first case or that the civil laws were suspended in the second case. The designated authorities then could enforce the civil laws until the tribunal determined further in the first case or help the people establish a new jurisdiction in the second case.
B. Indeed. Yet what would be the cause of such a declaration?
A. Gross breach and contempt for international agreements or gross violation of the civil laws by the civil authorities leading to the denial of life to many individuals of a particular people.
B. I am not sure whether a proper standard could be established.
A. For the moment, admit that it could. Imagine that the Republic of Iraq and the People of Iraq are legal entities and that the Republic of Iraq’s fief is in question.
B. All right. For the sake of argument…what is your point?
A. Not yet. Now let us talk about property. To whom do the mineral resources of a territory belong?
B. To whomever such property belongs in accordance with the civil laws of that territory.
A. Yet when a fief is in question, are the civil laws the final authority on any question of property?
B. No. When the civil laws have no force, the assumption is nulla iursdictio sine iustitia .
A. No jurisdiction, no justice. Yet the invading armies are bound by international law?
B. Yes.
A. They are not bound by their civil or military laws when those laws conflict with international law?
B. Yes.
A. Nor are they bound by the civil law of the territory invaded with respect to themselves, although they are bound to preserve the rights under the local civil law with respect to the civilian population? So says the Hague Convention?
B. Yes. That seems right.
A. Don’t go all Adeimantus on me. Then why are we to assume that it is equitable that the invaders are any more bound by international law than the other side?
B. Because that is the letter of the law. International law does not recognize any principle of equal protection of the laws, which I think you are trying to establish.
A. Good. I think we have established that Anglo-American conceptions of property, popular sovereignty, and equal protection of the laws are the justification for the President and the Secretary of Defense’s assertions that destroying oil fields is a war crime.
For:
1. Locke and his intellectual successors claimed that the right to life and the right to property were either linked inextricably or the same right. Hence, it would be easy to claim that a civilian population ought to be as free from the property appropriations and destruction of an invading army as the property appropriations and destruction of the defending one by analogy to a right to life that is protected by international law.
2. Americans theoretically recognize that the people are sovereign and have stronger collective rights than the rights of the government that have established. Hence, it is easy to claim that the mineral resources of Iraq belong to the Iraqi people.
3. Admittedly, equal protection of the laws has been used to protect corporations from government regulation or African-Americans from racism enshrined in law. Yet surely some concept of equal protection is the only way to take the letter of the Hague Convention and twist it to the needs of Bush and Rumsfeld. When the rights of two parties are in conflict, we all would like to assume that their differences are matters of fact rather than law. This is the isonomia of the Athenians taken to our American extreme.
B. You dirty scoundrel. You agreed with me all along.
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