Category Archives: The use of force

Hillary Laughed ‘I Came He Died’

Is media just another word for control?

http://johnpilger.com/articles/is-media-just-another-word-for-control

Is media just another word for control?

by John Pilger, 2 January 2014
 
A recent poll asked people in Britain how many Iraqis had been killed as a result of the invasion of Iraq in 2003. The answers they gave were shocking. A majority said that fewer than 10,000 had been killed. Scientific studies report that up to a million Iraqi men, women and children died in an inferno lit by the British government and its ally in Washington. That’s the equivalent of the genocide in Rwanda. And the carnage goes on. Relentlessly.
 
What this reveals is how we in Britain have been misled by those whose job is to keep the record straight. The American writer and academic Edward Herman calls this ‘normalising the unthinkable’. He describes two types of victims in the world of news: ‘worthy victims’ and ‘unworthy victims’. ‘Worthy victims’ are those who suffer at the hands of our enemies: the likes of Assad, Qadaffi, Saddam Hussein. ‘Worthy victims’ qualify for what we call ‘humanitarian intervention’. ‘Unworthy victims’ are those who get in the way of our punitive might and that of the ‘good dictators’ we employ. Saddam Hussein was once a ‘good dictator’ but he got uppity and disobedient and was relegated to ‘bad dictator’.
 
In Indonesia, General Suharto was a ‘good dictator’, regardless of his slaughter of perhaps a million people, aided by the governments of Britain and America. He also wiped out a third of the population of East Timor with the help of British fighter aircraft and British machine guns. Suharto was even welcomed to London by the Queen and when he died peacefully in his bed, he was lauded as enlightened, a moderniser, one of us. Unlike Saddam Hussein, he never got uppity.
 
When I travelled in Iraq in the 1990s, the two principal Moslem groups, the Shia and Sunni, had their differences but they lived side by side, even intermarried and regarded themselves with pride as Iraqis. There was no Al Qaida, there were no jihadists. We blew all that to bits in 2003 with ‘shock and awe’. And today Sunni and Shia are fighting each other right across the Middle East. This mass murder is being funded by the regime in Saudi Arabia which beheads people and discriminates against women. Most of the 9/11 hijackers came from Saudi Arabia. In 2010, Wikileaks released a cable sent to US embassies by the Secretary of State Hilary Clinton. She wrote this: “Saudi Arabia remains a critical financial support for Al Qaeda, the Taliban, al Nusra and other terrorist groups… worldwide”. And yet the Saudis are our valued allies. They’re good dictators. The British royals visit them often. We sell them all the weapons they want.
 
I use the first person ‘we’ and ‘our’ in line with newsreaders and commentators who often say ‘we’, preferring not to distinguish between the criminal power of our governments and us, the public. We are all assumed to be part of a consensus: Tory and Labour, Obama’s White House too. When Nelson Mandela died, the BBC went straight to David Cameron, then to Obama. Cameron who went to South Africa during Mandela’s 25th year of imprisonment on a trip that was tantamount to support for the apartheid regime, and Obama who recently shed a tear in Mandela’s cell on Robben Island – he who presides over the cages of Guantanamo.
 
What were they really mourning about Mandela? Clearly not his extraordinary will to resist an oppressive system whose depravity the US and British governments backed year after year. Rather they were grateful for the crucial role Mandela had played in quelling an uprising in black South Africa against the injustice of white political and economic power. This was surely the only reason he was released. Today the same ruthless economic power is apartheid in another form, making South Africa the most unequal society on earth. Some call this “reconciliation”.
 
We all live in an information age – or so we tell each other as we caress our smart phones like rosary beads, heads down, checking, monitoring, tweeting. We’re wired; we’re on message; and the dominant theme of the message is ourselves. Identity is the zeitgeist. A lifetime ago in ‘Brave New World’, Aldous Huxley predicted this as the ultimate means of social control because it was voluntary, addictive and shrouded in illusions of personal freedom. Perhaps the truth is that we live not in an information age but a media age. Like the memory of Mandela, the media’s wondrous technology has been hijacked. From the BBC to CNN, the echo chamber is vast.
 
In his acceptance of the Nobel Prize for Literature in 2005, Harold Pinter spoke about a “manipulation of power worldwide, while masquerading as a force for universal good, a brilliant, even witty, highly successful act of hypnosis.” But, said Pinter, “it never happened. Nothing ever happened. Even while it was happening it wasn’t happening. It didn’t matter. It was of no interest.”
 
Pinter was referring to the systematic crimes of the United States and to an undeclared censorship by omission – that is, leaving out crucial information that might help us make sense of the world.
 
Today liberal democracy is being replaced by a system in which people are accountable to a corporate state – not the other way round as it should be. In Britain, the parliamentary parties are devoted to the same doctrine of care for the rich and struggle for the poor. This denial of real democracy is an historic shift. It’s why the courage of Edward Snowden, Chelsea Manning and Julian Assange is such a threat to the powerful and unaccountable. And it’s an object lesson for those of us who are meant to keep the record straight. The great reporter Claud Cockburn put it well: “Never believe anything until it’s officially denied”.
 
Imagine if the lies of governments had been properly challenged and exposed as they secretly prepared to invade Iraq – perhaps a million people would be alive today.
 
This is a transcript of John Pilger’s contribution to a special edition of  BBC Radio 4’s ‘Today’ programme, on 2 January 2014, guest-edited by the artist and musician Polly Harvey. You can listen to the above transcript here
 
http://www.youtube.com/watch?v=18spvWk1qko

Turkey shuts off YouTube after ‘Syria invasion plan’ leak

Turkey shuts off YouTube after ‘Syria invasion plan’ leak

http://rt.com/news/turkey-block-youtube-twitter-649/

RT.COM,  March 27, 2014

Access to YouTube has been cut off in Turkey after an explosive leak of audiotapes that appeared to show ministers talking about provoking military intervention in Syria. Other social media have already been blocked ahead of tumultuous local elections.

The latest leaked audio recording, which reportedly led to the ban, appears to show top government officials discussing a potential attack on the tomb of Suleyman Shah, the grandfather of the founder of the Ottoman Empire.

The tomb is in Syrian territory, but protected by Turkish soldiers.

On the tape, Turkish Foreign Minister Ahmet Davutoğlu is heard to say that Prime Minister Recep Tayyip Erdogan sees any attack as an “opportunity” to increase Turkish presence in Syria, where it has staunchly supported the anti-Assad rebels. Security chief Hakan Fidan then goes one step further, and suggests staging a fake attack to give Turkey a casus belli to intervene in the conflict.

Turkish officials have recently vowed to protect the tomb as its “national soil.”

The Foreign Ministry in Ankara reacted to the tape by issuing a statement, calling the leak a “wretched attack” on national security. It also claims the tape was “partially manipulated.”

“These treacherous gangs are the enemies of our state and people. The perpetrators of this attack targeting the security of our state and people will be uncovered in the shortest time and will be handed over to justice to be given the heaviest penalty,” the ministry said.

A source inside the office of President Abdullah Gül, who has taken a softer line than Erdoğan over the series of government leaks, told Reuters that access to YouTube may be restored if the sensitive content is removed, even though the original video has been deleted.

Invoking national security and privacy concerns has been the government’s tactic in fighting off a stream of leaks showing top officials engaging in unsavory or downright illegal practices.

Erdoğan has also repeatedly claimed that most of the audio recordings are fakes. He labeled the latest audio revelation “villainous” during a stump speech in Diyabakir.

Twitter, another popular source for leaks, has already been shut down in Turkey since March 20, after a court order.

Since then, the California-based social network and organizations have fought in several courts to have the decision reversed, calling it “disproportionate and illegal.”

A court ruling in Ankara on Wednesday supported the appeal, but the country’s regulator has a month to unblock Twitter, leading to speculation that any such move would only take place after the election.

The incumbent party also enjoys the benefit of robust privacy legislation passed last month, which makes it easy to cut off any website even before any violation has been legally proven.

The US has led the chorus of international condemnation, calling the government’s moves “censorship” tantamount to “21st century book-burning.”
OSCE slams YouTube ban

Turkey is deliberately ignoring the fundamental right of freedom of the press by blocking access to social media platforms, Dunja Mijatović, the OSCE Representative on Freedom of the Media stated.

“A regulator exercising censorship by blocking is unacceptable in democracies, and it breaches numerous OSCE and other international standards that Turkey has committed to,” Mijatović said.

The OSCE calls on Ankara to immediately restore access to YouTube and Twitter.

“I call on the authorities to preserve the free flow of information and media freedom both online and offline, and immediately restore access to YouTube. I also urge TIB to reinstate Twitter services without delay following yesterday’s court decision annulling the ban on the website,” added Mijatović.

http://rt.com/news/turkey-block-youtube-twitter-649/ (http://rt.com/news/turkey-block-youtube-twitter-649/)

The War on Libya : An Imperialist Project to Create Three Libyas

The War on Libya : An Imperialist Project to Create Three Libyas

By Mahdi Darius Nazemroaya
Global Research, July 29, 2011

TRIPOLI, July 28, 2011 The division of Libya into three separate countries is part of the US-NATO imperial design. It is part of a project shared by the U.S., Britain, Italy, and France.

The NATO war launched against Libya in March 2011 was geared towards the breakup of the country into three separate entities.

The NATO led war, however, is back firing. The Libyan people have united to save their country and Tripoli is exploring its strategic options.

Preface: Reality versus Fiction

Almost all of the text herein was written a few months prior to my trip to Tripoli. It is part of a series of articles on Libya which I have been updating. It is fitting to conclude it in Tripoli, Libya. To be here on the ground in Libya is to be witness to the lies and warped narratives of the mainstream media and the governments. These lies have been used to justify this criminal military endeavor.

The mainstream media has been a major force in this war. They have endorsed and fabricated the news, they have justified an illegal and criminal war against an entire population.

Passing through the neighbourhood of Fashloom in Tripoli it is apparent that no jets attacked it as Al Jazeera and the British Broadcasting Corporation (BBC) falsely claimed. Now the same media networks, newspapers, and wires claim on a daily basis that Tripoli is about to fall and that the Transitional Council is making new advances to various cities. Tripoli is nowhere near falling and is relatively peaceful. Foreign journalists have also all been taken to the areas that are being reported to have fallen to the Transitional Council, such as Sabha and its environs.

The mainstream media reporting out of Tripoli have consistently produced false reports. They report about information from “secure internet services” which essentially describes embassy and intelligence communication media. This is also tied to the “shadow internet” networks that the Obama Administration is promoting as part of a fake protest movement directed against governments around the world, including Latin America, Africa and Eurasia.

The foreign press operating out of Libya have deliberately worked to paint a false picture of Libya as a country on the brink of collapse and Colonel Qaddafi as a despot with little support.

A journalist was filmed wearing a bulletproof vest for his report in a peaceful area where there was no need for a bulletproof vest. These journalists broadly transmit the same type of news as the journalists embedded with the armed forces, the so-called embedded journalists. Most of the foreign press has betrayed the sacred trust of the public to report accurately and fairly.

Not only are they actively misreporting, but are serving the interests of the military coalition. They are actively working “against Libya.” They and their editors have deliberately fashioned reports and taken pictures and footage which have been used to portray Tripoli as an empty ghost town.

Le Monde for example published an article on July 7, 2011 by Jean-Philippe Rémy, which included misleading photographs that presented Tripoli as a ghost city. The photographs were taken by Laurent Van der Stickt, but it was the editors in Paris who selected the pictures to be used for publication. Le Monde is an instrument of war propaganda. It is publishing material which serves to mislead French public opinion.

Sky News is no better. Lisa Holland of Sky News has always used the words “claimed,” “claim,” and “unverified” for anything that Libyan officials say, but presents everything that NATO says without the same doubt-casting language as if it is an unquestionable truth. She used every chance she had to degrade the Libyans. When she visited the bombed home of the daughter of Mohammed Ali Gurari, where the entire family was killed by NATO, she repeatedly asked if Qaddafi was responsible for the bombing to the dismay of those present, with the exception of the reporters who helped paint distorted pictures in the mind of their audiences and readers. She has deliberately distorted the underlying the reality of the situation, blaming Qaddafi, while knowing full well who had killed the Gurari family.

Other reports include those of Liseron Boudoul., Boudoul is a reporter for Télévision française 1 (TF1), who has been in Tripoli for months. She reported on March 22, 2011 that all the reports coming out of Tripoli are reviewed and censored by Tripoli. This statement was fabricated. If the Libyans had been censoring the news, they would not have allowed her to make that statement or for her and her colleagues to continue their disinformation campaign. Like all the other foreign journalists in Libya, she has witnessed the popular support for Colonel Qaddafi, but this important information has been deliberately withheld from her reports.

Much of what is being passed on as news by foreign reporters on the ground is a mirror of the US-NATO’s fake humanitarian mandate.


There is a real military-industrial-media complex at work in North America and Western Europe. Most of the media claims are nonsensical and contrary to the facts on the ground. They ignore the realities and hard facts. Were these to have been revealed, people in NATO countries would be mobilizing against their governments and against the NATO led war on Libya.

They have helped portray the victim as the aggressor. They use every chance they have to demonize the Libyan government, while upholding the legitimacy of NATO. Essentially many of these so-called journalists are professional propagandists.

The mainstream media has also basically worked as an intelligence branch of the Pentagon and NATO in multiple ways. The mainstream media has been party to atrocities and crimes and that point should not be lost when analyzing the war in Libya. British journalists have even been said to have given coordinates for bombings to NATO.

Libya: A Nation and its Society

Because of its geographic location, Libya has been at the crossroads, a meeting point of various ethnic groups and nationalities, The inhabitants of Libya are a mixed people of various stocks from Africa, the Mediterranean Basin, Europe, and Southwest Asia. Berbers, Egyptians, Greeks, people of Italian descent, people from the Levant, Iranians, Arabs, Turks, Vandals, Hadjanrais, Tuaregs (the Kel Tamajaq or Kel Tamashq), and several other groups have all contributed to the mosaic that constitutes the present population and society of Libya.

The genesis of the concept of a Libyan nation as a loosely-knit entity started with the imperial rule of the Ottoman Empire in North Africa. For the inhabitants of Libya it resulted in a shared feeling of similarity that intensified after the Italo-Ottoman War. After this war between the Ottoman Empire and Italy, the three Ottoman provinces in Libya fell under Italian colonial control.

From the Ottoman and Italian periods onwards up until the years after the Italian defeat the Eastern Libyans had much in common with their kindred in Egypt, while Western Libyans had much in common with their kindred in Tunisia and Algeria, and while Southern Libyans had much in common with their kindred in Niger, Chad, and Sudan. The inhabitants of Libya, however, also had much in common with each other. This included a shared history, a shared language with similar dialects of Arabic, a shared faith, and shared political goals.


Geographic proximity and a united feeling of animosity towards the Italians were also important ingredients in establishing a sense of nationhood. Under Italian rule of Libya this feeling of similarity amongst the local inhabitants eventually developed into a national identity as well as a resistance movement to Italian colonial rule. The aspirations of this indigenous resistance were local sovereignty and unity without any foreign yoke.

The Devil’s Game: Divide and Conquer

Libya has fallen deeper and deeper into a trap. The flames of internal fighting have been fuelled in Libya with the aim of replicating the same divisive scenarios that occurred in the former Yugoslavia and in Iraq. These plans are also aimed at igniting chaos in North Africa and West Africa in an effort to re-colonize Africa in its entirety.

The objective of Washington and its allies consists in confiscating and managing Libya’s vast wealth and controlling its resources. The have initiated a foreign-propelled civil war in Libya. Meanwhile the forces of Colonel Qaddafi have regained control of most of Libyan territory.

The coalition then decided to intervene when the Benghazi-based Transitional Council was lying in its deathbed and was in very desperate shape. If it had to, the Transitional Council was willing to make a deal with the “Devil” for its survival. Thus, the Transitional Council embraced its NATO enablers even closer.

It must also be asked, which Libyan tribes have publicly sided with the Transitional Council? This is a very important question that allows one to establish the extent of public support for the rebellion. Anyone who understands Libyan society also understands the heavy political weight and representation the tribes have.

Also, how many people remain in Benghazi? The demographics of that city have changed since the start of the conflict. Many people have fled to Egypt and abroad from Benghazi. This is not due to the fighting alone, but is tied to a lack of support for the Transitional Council, not to mention the foreign fighters that the TNC has brought, and the lawlessness prevailing in Benghazi.

Dividing Libya into Three Trusteeships

There have been longstanding designs for dividing Libya that go back to 1943 and 1951. This started with failed attempts to establish a trusteeship over Libya after the defeat of Italy and Germany in North Africa during the Second World War.

The attempts to divide Libya then eventually resulted in a strategy that forced a monarchical federal system onto the Libyans similar to the “federal system” imposed on Iraq following the illegal 2003 Anglo-American invasion. If the Libyans had accepted federalism in their relatively homogenous society they could have forfeited their independence in 1951. [1]

Great sacrifices were made by the Libyans who fought to liberate their nation. During the Second World War the Libyans allowed Britain to enter their country to fight the Italians and the Germans. Benghazi fell to British military control on November 20, 1942, and Tripoli on January 23, 1943.[2] Despite its promises to allow Libya to become an independent country, London intended to administer the two Libyan provinces of Tripolitania and Cyrenaica separately as colonies, while Paris was given control over the region of Fezzan (Fazzan), which is roughly one-third of Libya and the area to the southwest of the country bordering Algeria, Niger, and Chad. [3]

Following the end of the Second World War the victors and Italy attempted to partition Libya into territories that they would govern over as trust territories. It is because of the failure of this project that the Libyans gained independence as a united nation.

The political scientist Henri Habib describes this best:

The Allies, hav[ing] introduced a division in [Libya], hoped to have enough time to achieve their own ambitions. In the meantime, the Four Big Powers – the U.S.A., the U.S.S.R., the U.K., and France – met on two occasions at Potsdam and at San Francisco to discuss among other things the future of the former Italian colonies in Africa, including Libya. They referred the matter to the Council of Foreign Ministers of the Big Four. The latter met in London in September, 1945, and later in April, 1946, but were unable to agree. The U.S. proposed a collective United Nations Trusteeship over Libya; the U.S.S.R. proposed a Soviet Trusteeship over Tripolitania; while France wanted it returned to Italy. Eventually, the Soviets adopted the French view, but insisted on a Soviet-Italian Trusteeship. The British were ambiguous on the future; Britain and the U.S. later accepted an Italian Trusteeship on the condition, Britain insisted, that Cyrenaica be excluded. On February 10, 1947, a peace treaty with Italy was signed in Paris without settling the question of the Italian colonies. The Italians renounced all rights to their former colonies. They were secretly encouraged to make this renunciation in exchange for a vague promise of a U.N. Trusteeship over some of their former colonies. The Paris Conference had established as a corollary to the 1947 Peace Treaty with Italy a special Four Power Commission of Investigation to study the conditions in the former Italian colonies. They visited Libya from March 6, to May 20, 1948. They also consulted with the Italian government. The Commission was unable to arrive at a common decision, and conflicting recommendations were made, despite a strong desire made by the Libyan people for their independence. […] When the foreign ministers of the Big Four met on September 13, 1948, to receive the recommendations, they had little choice but to refer the whole matter to the General Assembly of the U.N. scheduled to meet on September 15, 1948.
Thus the question of the Libyan and other Italian colonies was placed on the U.N. General Assembly agenda. [4]

Once the matter was handed to the U.N. General Assembly, the British and the Italians made a last-ditch proposal on May 10, 1949, called the Bevin-Sfora Plan for Libya that consisted in dividing Libyan territory into an Italian-controlled Tripolitania, a British-controlled Cyrenaica, and a French-ruled Fezzan. [5] The motion failed by a vote of one and if it were not for the crucial vote of Haiti the U.N. would have portioned Libya into three separate countries. [6] (See map below)

The defeat of the plans to divide Libya at the U.N. would not be the end of the project to divide the North African country. There was still the internal card, division from within. This is where King Idris came into the picture.

Soft Balkanization through a Federal Emirate

Libya could have ended up like Kuwait, Bahrain, Qatar, and the Trucial Sheikhdoms which subsequently formed the United Arab Emirates. The British, the French, and the Italians did not give up their design for Libya, even when the U.N. General Assembly voted in favour of a united and independent Libya. They continued to try to divide Libya and even establish spheres of influence in consultaiton with the U.S. The focus was on Libyan federalism through an unelected National Assembly controlled by King Idris and a small circle of Libyan chieftains. [7]

The federalist system was unacceptable to many Libyans, which saw the new undemocratic National Assembly as a means of sidestepping the Libyan people. Moreover, the elected representatives from the heavily populated region of Tripolitania would be outweighed by the unelected chieftains from Cyrenaica and Fezzan. The official U.S. position was that the so-called “indigenous political leadership” of Cyrenaica and Fezzan enter the National Assembly with the elected representatives from Tripolitania on the “basis of equal representation for all parts of Libya.” [8] This was Orwellian double-speak that was meant to sidestep the will of the Libyan people. What was being pushed for by the U.S., Britain, France, and Italy was a country similar to the Arab sheikhdoms of the Persian Gulf.

In 1951, the U.S. State Department had this to say about the unelected National Assembly and King Idris:
The Department hopes and expects that all powers previously exercised by the Administering Authorities [meaning France and Britain] will, by the date fixed by the [U.N. General Assembly] (i.e., January 1, 1952) “have been transferred to the duly constituted Libyan Government”. Proclamation of independence is expected to follow thereafter, together with the assumption by [the] Emir (Idris Al Senusi) of his position as constitutional monarch of United Libya. [9]

This did not sit well with many Arabs. Egypt was highly critical and saw through the diplomatic deceit. The Egyptian and wider Arab opposition were based on the following rationale:

(a) the National Assembly (which prepared the [Libyan] constitution) should have been an elected rather than an appointed body (Egypt has contended previously that only an elected [or democratic] National Assembly in which the three parts of Libya […] were represented in proportion to their population could properly represent the people of Libya in the constitution-making process […]) ; (b) the form of government should be unitary rather than federal ; and (c) the present federation plan is merely a disguised method of maintaining old imperialist control over Libya by the interested great powers. [10]

In this regard, Henri Habib states: “When Libya obtained its independence in December 1951, federalism was imposed upon the country by King Idris and the foreign powers [specifically Britain, France, the U.S., and Italy] despite opposition from the majority of Libyans.” [11] He adds further: “Libyans saw their country deliberately divided by Britain and France, and [the] seeds of division planted among them.” [12]


Federalism, however, would be defeated by the steadfast pan-Arab demands for unity by the Libyan people:
Despite the initially strong opposition of King Idris and his British mentors, the country was forced by the nature of things to adopt the unitary system in April 1963. The federal experiment was a failure and even the king had to acknowledge it. A special royal decree was issued on April 27, 1963, abolishing federalism and establishing the unitary system. [13]

If Washington, London, Paris, and Rome had succeeded in their design, modern-day Libya would in all likelihood not have become a republic. Instead Libya would most probably have mirrored the model of the United Arab Emirates, as an Arab petro-sheikhdom in the Mediterranean and the only Arab sheikhdom outside of the Persian Gulf littoral.

Calculated Balkanization via Civil War: Dividing Libya into Trusteeships

There was more than just fate on the side of the Libyan people who had fought for their independence. The imperialist attempt to divide Libya into three territories was defeated by the Libyan people. In the words of Henri Habib:

Despite the attempts made by a number of powers to keep Libya divided and weak after 1951 by establishing a federal system in a homogenous state, the Libyans amended their own constitution in 1963, established a unitary state and removed a major obstacle to the unity of [Libya]. This obstacle was an administrative or structural impediment to the fuller evolution of independence which the Libyans sacrificed so much to achieve. [14]

During the previous scheme to divide their country many Libyans realized that the objective of the former colonial powers was to enhance the powers of King Idris. Idris was to serve as a foreign vassal and the “local manager” of foreign interests. His role would have been similar to the Arab monarchs in Jordan and Morocco. The purpose was to install a neocolonial regime while weakening Libya as a nation-State. [15]

Today, in the context of the US-NATO led war, the objectives to divide Libya into the three territories of Tripolitania, Cyrenaica, and Fezzan are very much alive. James Clapper Jr., the U.S. Director of National Intelligence, had testified to the U.S. Senate in March 2011 that at the end of the conflict Libya would revert to its previous federalist divisions which existed under the monarchy and that the country would have two or three different administrations. [16]


Thus, effectively Britain, France and Italy have resumed their neocolonial project to balkanize Libya into three separate states. All three countries have acknowledged sending military advisors to the Transitional Council: “Italian Defence Minister Ignazio La Russa said 10 military instructors would be sent and details were being worked out. He spoke Wednesday [April 20, 2011] after meeting with his British counterpart, Liam Fox.” [17] It is most likely that hundreds of NATO and Gulf Cooperation Council (GCC) military advisors and special troops are operating on the ground in Libya.

France has openly admitted funnelling weapons into the Western Mountains to forces hostile to the Tripoli government. [18] This constitutes a breach of U.N. security council resolution 1973. It constitutes a blatant violation of international law. The French government claims that they are sending weapons to civilians to protect themselves. This is a non-sequitur argument. It has no legal standing whatsoever and is an utter lie.

Weapons’ shipments have also been flown into Benghazi by these Western European powers and the U.S. under the disguise of humanitarian aid. Moreover there are signs that the small insurgency in the Western Mountains was coordinated by U.S. diplomats in November 2010. [19] One U.S. diplomat was asked to leave Libya in November 2010 for making unauthorized secret trips to the area, just as U.S. and French diplomats have done in Hama to stroke tensions in Syria. [20]

This war seeks to create divisions within Libyan society. Admiral Stravridis, the U.S. commander in charge of NATO, has told the U.S. Senate Armed Services Committee in March 2011 that he believed that Qaddafi’s support base would shrink as the tribal cleavages in Libya came “into play” as the war proceeded. [21] What Stravridis indirectly spelled out is that the NATO operations in Libya will cause further internal divisions through igniting tribal tensions that will cement regional differences. This is one of the real aims of the bombing campaign. [22] The U.S. and NATO also know full well that if Colonel Qaddafi is gone that the Libyan tribes would bicker amongst themselves for power and be politically divided. This is why they have been very adamant about removing Qaddafi.

The U.S., Britain, France, Italy, and NATO have all banked on a power vacuum that would be left by Qaddafi if he leaves power or dies. This is why they want to kill him. They have calculated that there will be a mad dash to fill the power vacuum that will help divide Libya further and promote violence. They are also very well aware that any tribal conflicts in Libya will spread from North Africa into West Africa and Central Africa.

The NATO-led coalition against Libya is supported by covert intelligence operaitons on the ground as psychological operations (PSYOPS) to create internal divisions within the Tripoli government. This is intended to not only weaken the regime and to make it act more desperately, but it is also intended to compound the internal divisions within Libya.
Britain’s William Hague has offered sanctuary to any Libyan officials, such as Musa Al-Kusa, that wish to defect from Tripoli and has said that London will exempt them from international sanctions. [23] This British offer of “exemption” also illustrates that the international sanctions against Libya are a political weapon with very little moral or ethical meaning or drive.

Even within the Benghazi-based Transitional Council there are divisions that the Pentagon and NATO have been exploiting. The Wall Street Journal had this to report about the animosity between the so-called jihadist elements and the rest of the Transitional Council: “Some rebel leaders are wary of their [meaning the jihadists] roles. ‘Many of us were concerned about these people’s backgrounds,’ said Ashour Abu Rashed, one of Darna’s representatives on the rebel’s provisional government body, the Transitional National Council.” [24] It has also been disclosed that the Transitional Council forces are also fighting each other and using NATO against each other. [25]

Sowing the Seeds of Chaos: Al-Qaeda and Libya

U.S. officials have increasingly been talking about the expansion of Al-Qaeda in Africa and how the “Global War on Terrorism” must be extended into the African continent. This talking point severes the following objectives:

1. To bolster U.S. Africa Command (AFRICOM) and a NATO-like alliance in Africa.

2. To control the Transitional Council, which is integrated by an Islamic militia as well prevent the development of an authentic and progressive opposition within Libya.

The U.S. and the E.U. would not not accept a truly independent Libyan government. In this regard, there are contingency plans which would allow the US and the E.U., if they so choose, to betray the Transitional Council or dispose of it like an outdated utensil. This is why the Pentagon and the mainstream media have started to speak about an Al-Qaeda presence in Libya.

Such scenario of betrayal should come as no surprise. The U.S. and its allies have consistently betrayed former allies. Saddam Hussein is one example and another is the Taliban government in Kabul, which was directly supported by the US.

Washington and its cohorts are deliberately keeping the Al-Qaeda card in reserve to use against the Transitional Council in case it refuses to cooperate with Washington and NATO. Regardless of a Transitional Council victory, they also want to use the Al-Qaeda card as a a justificaiton for future military interventions in Libya under the banner of the “war on terrorism”.

It is very likely that terrorist attacks will occur in Libya in some form like they did in Iraq following its 2003 invasion and occupation. These acts of terrorism will be covertly coordinated by Washington and its NATO allies.

In the words of Robin Cook the former foreign minister of Britain, Al-Qaeda is “originally the computer file of the thousands of mujahideen who were recruited and trained with help from the CIA to defeat the Russians [sic.; Soviets].” [26] Washington and NATO are now planning to use Al-Qaeda and the militant Islamists that they themselves created to fight countries opposed to their agenda, such as Syria and Libya, and to implant a new generation of subservient Islamist politicians into Arab countries, such as Egypt.

Dividing Libya: Destroying the Nation State

This war in Libya has nothing to do with saving lives. Truth is turned upside down: Killing is saving lives, being dead is being alive, war is peace, destruction is preservation, and open lies are presented as the truth. People have been blinded by a slew of lies and utter deception.

In this conflict most of the propaganda, most of the lies, and most of the hatred have invariably come from people who are not actually involved in the fighting. Others have been used as their pawns and Libya as their battlefield. All the known advocates of Pentagon militarism and global empire demanded for this war to take place, including Paul Wolfowitz, John McCain, Joseph Lieberman, Eliott Abrahams, Leon Wieseltier, John Hannah, Robert Kagan, and William Kristol.

There has been a blatant infringement of international law. War crimes and crimes against humanity have been committed by NATO in Libya. These crimes will never be investigated by the International Criminal Court (I.C.C.) or the U.N. Quite the opposite: the U.N. Security Council and the I.C.C. are political weapons, which are being used against Libya. The UN is silent on the use of depleted uranium (D.U.) ammunition or the bombing of civilian targets

This is not a a humanitarian war: the first target of the war was the Mint which prints and issues Libyan dinars and the country’s food storage facilities. Several humanitarian organizations were targetted including schools, a children center, hospitals, the offices of the Down’s Syndrome Society, the Handicapped Women’s Foundation, the National Diabetic Research Centre, the Crippled Children’s Foundation. Among the hospitals and medical facilities which have been bombed is a complex used for medical oxygen production.


The bombings have also targetted residential areas, a hotel, restaurants, a bus filled with civilians, Nasser University (a campus of Al-Fatah University), and a conference hall with participants involved in anti-war activism. Meanwhile NATO was supplying the rebels with offensive weapons [27]

What is happening in Libya is an insidious process.
The underlying objective is create divisions within Libyan society.

The war is dragging out, which in turn creates a situation in which the Transitional Council becomes increasingly dependent on the US and NATO military alliance. This is why NATO has deliberately prolonged the war and reduced its support to the Transitional Council’s forces on the battlefield. This is one of the reasons why rebel forces have been pushed back. Even the so-called “friendly fire” incidents whereby NATO bombed the Transitional Council’s tank column heading towards Tripoli are suspect. Was this a deliberate attack with a view to prolonging the fighting. [28]

NATO has now bombed advancing Transitional Council forces several times. The Transitional Council has found it hard to explain why NATO has been bombing its forces and has even been placed in a position where it had to apologize on April 2, 2011 to NATO when its frontline volunteers were killed by NATO war planes. [29] Internal political fighting within the Transitional Council may also be a factor behind these “friendly fire” NATO bombings.

Many reports have described the conflict as intensifying:

The pro-Qadhafi forces mounted a fierce assault on Ajdabiyah since Saturday morning [April 9, 2011]. Following classic military tactics, regime forces first resorted to the heavy artillery firing, which was followed by incursions by infantry troops inside the town. By afternoon, shells were landing at Istanbul street in the city centre, causing panic among several opposition fighters, who chose to hastily flee in their vehicles towards Benghazi. However, some among the opposition ranks stood their ground, and managed to control the north-eastern access to the town. But another artillery barrage appeared to have dislodged them from their fragile moorings. As the battle raged, NATO forces were pitching in with air strikes, which seemed unable to silence the regime’s heavy guns. On Sunday [April 10, 2011], NATO claimed that air strikes had destroyed 11 regime tanks ahead of Ajdabiyah. The government said it had shot down two opposition helicopters, signalling the high intensity of the fighting on the ground as well as in the air. [30]

In reality there is a virtual stalemate. The Transitional Council is not moving westward, but has also been entrenched in its eastward positions due to NATO support.

One objective of NATO is to control both sides. The idea is that as both sides become more desperate they will also increasingly turn to Washington and Brussels for a way out of the war and make more concessions to U.S. and E.U. demands. The Israelis are also another player that can be turned to by both sides in Libya.

Both Tripoli and Benghazi have talked with the U.S. and the E.U. through different channels, which include using individuals in unofficial positions. Kurt Weldon, a former member of the U.S. Congress for Pennsylvania, went to meet with Libyan officials at the start of April 2011. Weldon made the trip to Tripoli in coordination with the White House. The U.S. media tried to casually gloss over Weldon’s visit running articles about how he did not meet Qaddafi.

At the onset of the fighting Tripoli accepted Venezuelan offers for mediation, which the U.S. and the E.U. undermined and the Transitional Council rejected. Tripoli even said that it accepted an initial March 2011 African Union ceasefire and reform plan, which were ignored by Washington and its allies. Tripoli even requested that the African Union, the U.N., and the E.U. investigate for themselves the claims against the Libyan government. Worldwide, most governments, from Brazil and Nigeria to Malaysia and China, voiced support for a negotiated settlement in Libya, but this has been ignored by the U.S., NATO, and the unrepresentative group of Arab dictators they call their allies.

The Qaddafi family’s subsequent requests for diplomatic negotiations were also turned down by the U.S. and the main E.U. powers. [31] Afterwards, Tripoli again accepted African Union offers for mediation spearheaded by the Republic of South Africa and a repeated African Union proposal for a ceasefire, which the U.S. and the E.U. undermined again and the Transitional Council rejected. [32] The repeated African Union proposal called for a ceasefire, the creation of humanitarian corridors, protection of foreigners, and finally dialogue between both sides in bringing democratic reform. [33] A massive people’s initiative for a reconciliation march across the war zone in Libya was even started, which received little press coverage outside of Africa and a few countries. [34]

The government in Tripoli has even put together a new constitution. [35] Tripoli even gave orders for the military to leave Misurata (Misrata/Misratah) and allow the local tribes to establish political order and security in the city and its surrounding district. [36] During talks with Greece officials from Libya even tried to use billions of frozen dollars to provide humanitarian aid to the Libyan people on both sides of the conflict, but had their plan obstructed and blocked by France. [37]

As they did during the invasion of Iraq, the political ranks have started to show breaks in London. Conservative parliamentarians in the British Parliament, such as John Baron, David Davis, and Peter Bone, are starting to criticize their leader, Prime Minister Cameron. [38]
Baron told the British press that the war on Libya has changed significantly: “When it was put before the House, the emphasis was very much on humanitarian assistance. This has changed into a mission of regime change [in Libya].” [39]

The Geo-Politics of Dividing Libya

Of significance, Washington does not want to have a visible presence in the war in North Africa. It has deliberately let its allies take the lead in the operation and painstakingly tried to distance itself from the war. It has presented itself as cautious and reluctant to go to war. [40] Washington’s allies are in reality acting on behalf of the Empire. NATO is also in the process of performing the role of global military force acting indirectly on behalf of the United States.

This war is not exclusively about controlling energy reserves and the Libyan economy. The war also encompasses a strategy to entrench U.S. and E.U. control over Africa as well balkanize the entire African region. The U.S. and the E.U. were adamant regarding Tripoli’s project to develop and unify Africa, as opposed to the neocolonial strategy of maintaining Africa as a provider of raw materials and (unmanufactured) natural resources. [41]

It is worth noting, in this regard, that the Director of National Intelligence, in testimony to the Senate Armed Services Committee during a session focusing on Libya, stated that Russia and China constitute “mortal threats” to the United States. [42] The war in Libya is also meant to shore up the drive into Eurasia, which targets Russia, China, Iran, and Central Asia.

The Arab sister-republics of Lebanon and Syria are targets too. Syria has been destabilized and the groundwork is underway in Lebanon with the Special Tribunal for Lebanon (STL). Control over Libya, Syria, and Lebanon would also complete the Mediterranean Union, which is a geo-political project of the E.U. and Washington to control the entire Mediterranean. [43]

Towards An African NATO

The war against Libya will also be used to create a NATO-like military structure in Africa that will be tied to AFRICOM. While speaking to the U.S. Senate Arms Services Committee, General Ham of AFRICOM pointed out that a military partnership with African states and support for regional military cooperation in Africa were strategic for Washington. General Ham was pointing to the fact that U.S. was planting the seeds of a NATO-like military structure in Africa that would be subordinate to Washington. In General Ham’s own words:

Secondly, building the Coalition to address the situation in Libya was greatly facilitated through the benefits of longstanding relationships and inter-operability, in this case through NATO. This is the kind of regional approach to security that U.S. Africa Command seeks to foster on the continent [of Africa]. U.S. Africa Command’s priority efforts remain building the security capacity of our African partners. We incorporate regional cooperation and pursuit of inter-operability, in all of our programs, activities, and exercises so our African partners are postured to readily form coalitions to address African security challenges as they arise. [44]

Libya is the crown of Africa and from Libya there is a perfect opening for the U.S., NATO, and the E.U. into the African continent. U.S. and NATO bases may also be established in the eastern portion of Libya and used as a staging ground for a possible war against Sudan. These bases could be established at the request of the Transitional Council and justified as a means of providing stability to North Africa and as a means of protecting the Libyan people in Benghazi.

The Destruction of the Libyan State

Washington and the E.U. want to privatize the Libyan public sector under the control of their corporations, take over Libyan industries, and control every aspect of the Libyan economy. On March 19, 2011 the Transitional Council declared that it had established a new Benghazi-based Libyan oil corporation and a new national bank under the auspicious of the Central Bank of Benghazi, which would be responsible for all of Libya’s monetary policies. [45] The new Benghazi-based institutions are an opening for an economic invasion and the colonization of Libya. The Central Bank of Benghazi, which is controlled by Britain’s Hong Kong and Shanghai Banking Corporation (HSBC), could also be given control of the Arab Banking Corporation, which could be used as an umbilical cord by Wall Street and Canary Wharf for infiltrating Libya.

The Benghazi-based Transitional Council is already starting the process of exporting oil with the aid of Qatar from the Libyan seaport of Tobruk (Tobruq) near the Egyptian border. [46] The countries and corporations trading with the Transitional Council are all breaching international law. This act is not only intended to weaken Libya, but it also criminal and a form of economic exploitation.

Moreover, Libyan oil will be used to finance weapons sales. The Transitional Council will use the funds from oil sales that it receives to purchase weapons to fight the Libyan military. This will also violate the Arms Trade Treaty (ATT). The Associated Press reported about this on April 1, 2011 saying:

A plan to sell rebel-held oil to buy weapons and other supplies has been reached with Qatar, a rebel official said Friday, in another sign of deepening aid for Libya’s opposition by the wealthy Gulf state after sending warplanes to help confront Moammar Gadhafi’s forces.

It was not immediately clear when the possible oil sales could begin or how the arms would reach the rebel factions, but any potential revenue stream would be a significant lifeline for the militias and military defectors battling Gadhafi’s superior forces. [47]

France, Italy, and Qatar have all recognized the Transitional Council as the government of Libya. [48] The U.S., Britain, Germany, Turkey, and their allies have also all given various forms of recognition to the Transitional Council. They are all working now to control the new institutions of the Benghazi administered areas of Libya. The European Bank for Reconstruction and Development (EBRD) is also hovering over Libya under the pretext of furthering democracy amongst the Arabs. [49] They all plan on profiting off the interests from the loans that they are now giving to the Transitional Council.

Two Parallel Administrations in Libya

The U.S. and the E.U. are trying to manipulate the Libyan people to their advantage; they are using the Libyan people as cannon fodder. The objective is to create a deadlock and foment chaos across North Africa. Even the sniper attacks on both Libyan sides could be the work of U.S., British, French, NATO, Egyptian, and Khaliji (Gulf) Arab agent provocateurs. The objective is to manipulate the Libyans into destroying their country from the within. The destruction of Yugoslavia, namely the “Balkanization of the Balkans” is the model which is being applied to Libya, leading to its division and political subordination to Washington and Brussels.

There have been discussions about splitting the country up, between the regimes in Tripoli and Benghazi. The government in Tripoli would keep everything from Tripoli to somewhere near Misurata, while the Transitional Council would get to administer all the territory in the east running to the Egyptian border. [50] Two parallel Libyan governments are at present a reality. Benghazi already has U.N., U.S., E.U., Qatari, British, French, German, Turkish, and Italian diplomatic missions.

As mentioned earlier, the U.S. and the E.U. waited until the Libyan military had reached the doors of Benghazi and the Transitional Council was nearly on its deathbed to take action. This was no mere coincidence. David Owen, a member of the British House of Lords is worth quoting about the timing of the military intervention: “Without it, within hours, Benghazi would have fallen, and [Colonel Qaddafi] would have won.” [51] This was made to insure the indispensability of NATO to an acquiescent Transitional Council.
Israel and Libya

The supporters of the Transitional Council accuse the Qaddafi regime of being supported by Israel, while they themselves are openly supported by NATO and the Arab petro-sheikhdoms, which oppose democracy and freedom in their own countries. Both sides in Libya have to realize that NATO and Israel, as well as Saudi Arabia and the Arab petro-sheikhdoms, are allies and work closely together against the legitimate aspirations of the Arab peoples. They are merely being played one against the other.

Israel is also involved in this equation. The visit of Bernard-Henri Lévy to Benghazi serves Israeli interests. [52] Tel Aviv has sought to play both sides. Rumours about an Israeli plan to establish a military base on the Libyan eastern border with Egypt have also been circulating for months. What should also be considered is that just like the natural gas deal between Israel and Egypt, where Egyptian natural gas was sold to Israel below market prices, Libyan water from the Great Man-Made River could be diverted to Israel from a pipeline running through Egypt. Like South Sudan, it is being said that the Transitional Council will recognize Israel. Lévy has also said that the Transitional Council has told him that they intend to recognize Israel. [53]

The Role of Banks and Currency in the War on Libya

Banks have a role to play in this war. U.S. and European financial institutions are major players. The vast overseas financial holdings and sovereign funds owned by Libya are the “spoils of war” accruing to major Western banks and financial institutions.

In 2008, Goldman Sachs was given 1.3 billion dollars (U.S.) by the Libyan Investment Authority. [54] In unfathomable terms, Goldman Sachs told the Libyans that 98% of the investment value was lost, which means that the Libyans lost almost all their investment. [55] Goldman Sachs had merely appropriated Libya’s money wealth. The Libyan government and Goldman Sachs would then try to work something out by giving Libya huge shares in Goldman Sachs, but the negotiations failed in 2009. Nor was Goldman Sachs alone in taking Libyan money; the Société Générale SA, the Carlyle Group, J.P. Morgan Chase, Och-Ziff Capital Management Group and Lehman Brothers Holdings were all also holding vast amounts of Libyan funds. [56]


Signs of Hope: Libya’s Promise of Tomorrow. A New Strategic Axis?

The Libyans have realized that they need to continue on a pan-African path and to follow a model of self-sufficiency. Many in Tripoli have also started thinking about the future. Old disputes and animosities may also be put aside with other global players that are opposed to U.S. hegemony and opposed to NATO.

A strategic axis between Libya, Algeria, Syria, and Iran that will later include Lebanon may blossom as the Libyans begin to explore their strategic options on the political and security levels. Libya has realized that it has made mistakes and now knows that it must find a place in some sort of a global counter-alliance against the U.S. and its allies. Tripoli will eventually try to find a strategic equilibrium for itself in a geo-strategic concept that will balance Russia, China, and Iran.

A new strategic concept for the Libyans would also include Venezuela and the Bolivarian Bloc in Latin America. Venezuela, along with Syria, has been Libya’s staunchest supporter during the NATO war.

Eventually, Lebanon and Libya will also mend fences. The dossier of Musa Al-Sadr only remains between Lebanon and Libya on the insistence of Nabih Berri. The upper echelons within Hezbollah, including Secretary-General Hassan Nasrallah, have tried not to antagonize Berri and the leadership of the Amal Movement on the issue of Musa Al-Sadr as part of an effort to prevent divisions in the Shiite Muslim community of Lebanon, but if a strategic axis begins to form between Algeria, Libya, Syria, and Iran the issue of Al-Sadr will have to be resolved in Lebanon.

In France and Western Europe tensions are also rising internally and against Washington. Gaullism may become reinvigorated in a declining France. The people of Africa have also become even more aware of the exploitation of their continent and the importance of Libya to the rest of Africa.

Most importantly, the NATO bombings have helped bring much of Libya together too and have given the nation a new sense of mission.

The Libyan people have been reinvigorated with this sense of mission. They have been energized and a revolutionary spirit has been stirred and awakened in the youth.

When the dust settles, the people of Libya will begin to weed out political corruption. The worst enemy of all for the Libyans has been the enemy from within.

This war has chiefly been against the Libyan people. It has not been the Libyan military that has kept the country standing, but the Libyan people themselves and their resistance.

NATO has become tired and faces many internal and external pressures. Italy has now been forced to withdraw from the war. [58] Norway will also withdraw in August 2011. [59] France has even accepted what Paris and NATO refused to accept from the start of the conflict, namely to end the war and to stop bombing Libya if both sides in Tripoli and Benghazi start political talks. [60] In reality, Tripoli has been calling for political dialogue with an entire international chorus for months, but it has been the U.S. and the E.U. that have refused to listen. This also exposes the guilt of the U.S. and the E.U. in waging a war of aggression against Libya.

It should also be noted that Prime Minister Silvio Berlusconi has also said that he was told that the war would end when the population of Tripoli revolted against Colonel Qaddafi. [61] This is a significant statement by the Italian Prime Minister. An analysis of cause and effect is very important here. It means that the war did not start as a result of any revolts, but was intended to instigate revolts against the Libyan government. This would explain why NATO has deliberately been targeting and punishing the civilian population. The aim has been to instigate them against Colonel Qaddafi.

The security of the familiar is gone. The issue of succession to Colonel Qaddafi was something that the Libyans thought little about or largely ignored prior to the conflict in Libya, but it is now something that has been addressed. If the war never happened, it is likely that there would have been a civil war in Libya once Qaddafi left. Now this is something that has been prepared for. Many of the corrupt people in Libya have also been exposed and have shown their true colours too. Libyans are no longer ignoring these problems as they did before.

Libya is not perfect and many of the Libyan people will be amongst the first to admit it. Now many of them are prepared to fix their problems at home for the sake of saving their country, their society, and their families. They face an uphill battle, but they are willing to fight and to make all the sacrifices needed for a better tomorrow. This inner recognition and will to change is the start of authentic change. These people will not give up even if NATO were to launch an invasion or increasing its bombings to devastating levels. Although the conflict is far from over, in the end history will judge the NATO war against Libya as a huge mistake and as the beginning of the end for NATO.

Mahdi Darius Nazemroaya is a Research Associate of the Centre for Research on Globalization (CRG)


NOTES

•    [1] Henri Pierre Habib, Politics and Government of Revolutionary Libya (Montmagny, Québec: Le Cercle de Livre de France Ltée, 1975), pp.19-20.
•    [2] Ibid., p.68.
•    [3] Ibid.
•    [4] Ibid., pp.70-71.
•    [5] Ibid., p.72.
•    [6] Ibid., p.73.
•    [7] Eds. Fredrick Aandahl et al., The United Nation; The Western Hemisphere, vol. 2 of Foreign Relations of the United States 1951 (Washington, D.C.: United States Government, 1979), p.25.
•    [8] Ibid.
•    [9] Ibid.
•    [10] Ibid.
•    [11] Habib, Revolutionary Libya, Op. cit., p.19.
•    [12] Ibid., p.68
•    [13] Ibid., p.20.
•    [14] Ibid., p.2.
•    [15] Ibid., p.68.
•    [16] U.S. Senate Armed Services Committee, Testimony on the current and future worldwide threats to the national security of the United States, 112th Congress, 2011, 1st Session, 10 March 2011.
•    [17] Los Angeles Times, “3 Western powers sending military advisors to Libya,” April 20, 2011.
•    [18] Louis Charbonneau and Hamuda Hassan, “France defends arms airlift to Libyan rebels,” Reuters, June 30, 2011.
•    [19] Reuters, “Libya orders US diplomat to leave: report,” November 8, 2010.
•    [20] Ibid.; Voice of America (VOA), “US, Syria Clash Over Ambassador’s Hama Visit,” July 8, 2011; Bassem Mroué, “Syrian protesters attack US embassy,” Associated Press (AP), July 11, 2011.
•    [21] United States Senate Armed Services Committee, U.S. European Command and U.S. Strategic Command in review of the Defense Authorization Request for Fiscal Year 2012 and the Future Years Defense Program,112th Congress, 2011, 1st Session, 29 March 2011; Infra. n.22 and n.61 (the bombings are meant to cause regime change).
•    [22] Infra. n.61; see the omission of the Italian Prime Minister that the NATO bombings are not a result of any revolt, but are intended to cause a revolt in Tripoli against Colonel Qaddafi.
•    [23] Harriet Sherwood, “UK paves way for flight of Libyan defectors,” The Guardian (U.K.), April 5, 2011; the important details on Hague’s announcement and London’s position are as follows: “Libyan ministers and officials who were prepared to abandon the regime would be ‘treated with respect and in accordance with our laws’, he added. ‘In the case of anyone currently sanctioned by the EU and UN who breaks definitively with the regime, we will discuss with our partners the merits of removing the restrictions that currently apply to them, while being clear that this does not constitute any form of immunity whatsoever.’”
•    [24] Charles Levinson, Ex-Mujahedeen Help Lead Libyan Rebels, The Wall Street Journal (WSJ), April 2, 2011.
•    [25] This information has been passed on through numerous sources on the ground in Libya including members of the Non-Governmental Fact Finding Commission on the Current Events in Libya.
•    [26] Robin Cook, “The struggle against terrorism cannot be won by military means,” The Guardian (U.K.), July 8, 2005.
•    [27] “Arms Embargo – NATO Boarding,” The NATO Channel (May 24, 2011); Mike Mühlberger was the videos producer and reporter. Because of the legal ramifications this video would have NATO removed this video.
•    [28] Stephen Fidler, Charles Levinson, and Alistair Mcdonald, “Friendly Fire Raises Tensions in Libya,” The Wall Street Journal, April 8, 2011.
•    [29] Tara Bahrampour, “Libyan rebels struggle to explain rift,” The Washington Post, April 2, 2011; Transitional Council leadership statements to the international press about the death of its volunteers are as follows: “‘It was a terrible mistake, and we apologize, and we will not let it happen again,’ said Abdul Hafidh Ghoga, vice president and spokesman of the opposition’s Transitional National Council.”
•    [30] Atul Aneja, “AU begins mediation as Qadhafi forces advance,” The Hindu, April 11, 2011.
•    [31] Elle Ide, “Italy recognizes Libyan opposition council,” Associated Press (AP), April 4, 2011.
•    [32] Chris McGreal and Harriet Sherwood, “Libya: Gaddafi has accepted roadmap to peace, says Zuma,” The Guardian (U.K.), April 11, 2011; Quoting from the article: “The [African Union] delegation, consisting of the presidents of South Africa, Congo-Brazzaville, Mali and Mauritania, plus Uganda’s foreign minister, landed at Tripoli’s Mitiga airport after Nato gave permission for their aircraft to enter Libyan airspace. The planes were the first to land in Tripoli since the international coalition imposed a no-fly zone over the country more than two weeks ago.”
•    [33] Simon Denyer and Leila Fadel, “Gaddafi accepts African Union’s road map for peace,” The Washington Post, April 10, 2011.
•    [34] Ian Black, “Libya’s biggest tribe joins march of reconciliation to Benghazi,” The Guardian (U.K.), March 23, 2011; On a personal note, I also was told by sources inside Tunisia and Libya that any people attempting reconciliation marches were attacked.
•    [35] Maria Golovnina, “Libya pledges constitution but Gaddafi role unclear,” Reuters, April 10, 2011.
•    [36] Michael Georgy, “McCain visits rebels, Libya adjusts Misrata tactics,” Reuters, August 22, 2011.
•    [37] Solomon Hughes and Kim Sengupta, “Gaddafi regime staked £12bn on secret deal in bid to open peace talks,” The Independent (U.K.), June 10, 2011.
•    [38] The Daily Mail (U.K.), “MPs rebel over Libya mission creep as Cameron, Obama and Sarkozy promise to keep bombing until Gaddafi regime is gone,” April 15, 2011.
•    [39] Ibid.
•    [40] Julian Borger and Ewen MacAskill, “No-fly zone plan goes nowhere as US, Russia and Nato urge caution,” The Guardian (U.K.), March 1, 2011.
•    [41] Discussion with Mohammed Siala (Libyan Minister of International Cooperation), July 4, 2011.
•    [42] U.S. Senate Armed Services Committee, Testimony on the current, Op. cit.
•    [43] Lebanon and Syria are already members and Libya is an observer member. Libya was scheduled to become a full member, but Colonel Qaddafi changed his mind, which upset France and the European Union.
•    [44] U.S. Senate Armed Services Committee, U.S. Transportation Command, Op. cit.
•    [45] William Varner, “Libyan Rebel Council Forms Oil Company to Replace Qaddafi’s,” Bloomberg, March 22, 2011.
•    [46] Al Jazeera, “Libyan rebels ‘disappointed’ by NATO, April 5, 2011; Atul Aneja, “Opposition allies mull ‘political solution’ in Libya,” The Hindu, April 8, 2011.
•    [47] Brian Murphy and Adam Schreck, “Libyan opposition says it has oil deal with Qatar,” Associated Press (AP), April 1, 2011.
•    [48] Scott Peterson, “Italy rejects Qaddafi, recognizes Libyan rebel government,” Christian Science Monitor, April 4, 2011.
•    [49] Daryna Krasnolutska and Agnes Lovasz, “North African and Mideast Democracy a Condition for EBRD Loans, Mirow Says,” Bollomberg, April 21, 2011.
•    [50] Alan Fisher, “Libya leaders talk exit strategy,” Al Jazeera, March 4, 2011.
•    [51] Ibid.
•    [52] Kim Willsher, “Libya: Bernard-Henri Lévy dismisses criticism for leading France to conflict,” The Observer, March 27, 2011.
•    [53] Radio France Internationale, “Libyan rebels will recognise Israel, Bernard-Henri Lévy tells Netanyahu,” June 2, 2011.
•    [54] Margaret Coker and Liz Rappaport, “Libya’s Goldman Dalliance Ends in Losses, Acrimony,” The Wall Street Journal (WSJ), May 31, 2011.
•    [55] Ibid.
•    [56] Ibid.
•    [57] The Daily Mail (U.K.), “U.S. rescue chopper shoots six Libyan villagers as they welcome pilots of downed Air Force jet,” March 22, 2011.
•    [58] Voice of America (VOA), “Berlusconi Opposes Libya Mission; Rome Cuts Involvement,” July 7, 2011.
•    [59] Agence-France Presse (AFP), “Nato capabilities will be exhausted within 90 days in Libya,” July 11, 2011.
•    [60] Agence-France Presse (AFP), “France backs ‘political solutions’ in Libya crisis,” July 11, 2011.
•    [61] Lamine Chikhi et al., “Italy’s Berlusconi exposes NATO rifts over Libya,” ed. Elizabeth Fullerton, Reuters, July 7, 2011; Nicolas Carey (who was expelled from Tripoli and managed to immediately reappear in Misurata) also contributed to this report. As a note the reporting of Carey has to be carefully scrutinized.

Bush administration has used 27 rationales for war in Iraq

Bush administration has used 27 rationales for war in Iraq, study says


Andrea Lynn, Humanities Editor (News Bureau, Illinois)
217-333-2177; andreal@illinois.edu

5/10/2004

CHAMPAIGN, Ill. — If it seems that there have been quite a few rationales for going to war in Iraq, that’s because there have been quite a few – 27, in fact, all floated between Sept. 12, 2001, and Oct. 11, 2002, according to a new study from the University of Illinois at Urbana-Champaign. All but four of the rationales originated with the administration of President George W. Bush.

The study also finds that the Bush administration switched its focus from Osama bin Laden to Saddam Hussein early on – only five months after the Sept. 11 terrorist attacks in the United States.

In addition to what it says about the shifting sands of rationales and the unsteady path to war in Iraq, what is remarkable about the 212-page study is that its author is a student.

The study, “Uncovering the Rationales for the War on Iraq: The Words of the Bush Administration, Congress and the Media from September 12, 2001, to October 11, 2002,” is the senior honors thesis of Devon Largio. She and her professor, Scott Althaus, believe the study is the first of its kind.

For her analysis of all available public statements the Bush administration and selected members of Congress made pertaining to war with Iraq, Largio not only identified the rationales offered for going to war, but also established when they emerged and who promoted them. She also charted the appearance of critical keywords such as Osama bin Laden, Saddam Hussein and Iraq to trace the administration’s shift in interest from the al Qaeda leader to the Iraqi despot, and the news media’s response to that shift.

“The rationales that were used to justify the war with Iraq have been a major issue in the news since last year, and Devon’s study provides an especially thorough and wide-ranging analysis of it,” Althaus, a professor of political science, said.

“It is not the last word on the subject, but I believe it is the first to document systematically the case that the administration made for going to war during critical periods of the public debate.

“It is first-rate research,” Althaus said, “the best senior thesis I have ever seen – thoroughly documented and elaborately detailed. Her methodology is first-rate.”

Largio mapped the road to war over three phases: Sept. 12, 2001, to December 2001; January 2002, from Bush’s State of the Union address, to April 2002; and Sept. 12, 2002, to Oct. 11, 2002, the period from Bush’s address to the United Nations to Congress’s approval of the resolution to use force in Iraq.

She drew from statements by President Bush, Vice President Dick Cheney, Secretary of State Colin Powell, Secretary of Defense Donald Rumsfeld, Deputy Secretary of Defense Paul Wolfowitz, National Security Adviser Condoleezza Rice, Defense Policy Board member and long-time adviser Richard Perle; by U.S. senators Tom Daschle, Joe Lieberman, Trent Lott and John McCain; and from stories in the Congressional Record, the New York Times and The Associated Press. She logged 1,500 statements and stories.

The rationales Largio identified include everything from the five front-runners – war on terror, prevention of the proliferation of weapons of mass destruction, lack of weapons inspections, removal of Saddam Hussein’s regime, Saddam Hussein is evil, to the also-rans – Sen. Joe Lieberman’s “because Saddam Hussein hates us,” Colin Powell’s “because it’s a violation of international law,” and Richard Perle’s “because we can make Iraq an example and gain favor within the Middle East.”

With regard to the administration’s shift from bin Laden to Saddam, Largio found that Iraq was “part of the plan for the war on terror early in the game.”

For example, in his State of the Union speech on Jan. 29, 2002, President Bush declared that Iraq was part of the war against terrorism because it supported terrorists and continued to “flaunt its hostility toward America.” He also claimed that Iraq allowed weapons inspectors into the country and then threw them out, “fueling the belief that the nation did in fact plan to develop weapons of mass destruction,” Largio wrote.

In the same speech, the president called Iraq, Iran and North Korea an “axis of evil,” a phrase that would “ignite much criticism” and add “to the sense that the U.S. would embark on a war with the Hussein state,” Largio wrote.

“So, from February of 2002 on,” Largio said, “Iraq gets more hits than Osama bin Laden. For President Bush the switch occurs there and the gap grows over time.”

Largio also discovered that it was the media that initiated discussions about Iraq, introducing ideas before the administration and congressional leaders did about the intentions of that country and its leader. The media also “brought the idea that Iraq may be connected to the 9-11 incident to the forefront, asking questions of the officials on the topic and printing articles about the possibility.”

The media “seemed to offer a lot of opinion and speculation, as there had been no formal indication that Iraq would be a target in the war on terror,” Largio wrote. Oddly, though, the media didn’t switch its focus to Iraq and Saddam until July of 2002.

Yet, “Overall, the media was in tune with the major arguments of the administration and Congress, but not with every detail that emerged from the official sources.”

“As always, hindsight is twenty-twenty,” Largio wrote in the conclusion to her thesis. “However, there are questions surrounding nearly every major rationale for the war.

“People may wonder, why are our men and women over there? Why did we go to war? Were we misled? In this election year, these questions deserve answers. And though this paper cannot answer these questions definitively, it can provide some insight into the thinking of the powers-that-be during the earliest stages of war preparation and give the American people a chance to answer these questions for themselves.”

Because Largio’s thesis addresses questions of “great public importance,” Althaus said, and “does so in such a detailed manner,” he arranged to have it posted on a public Web site. Largio will graduate on May 16, and will attend law school at Vanderbilt University.

Explaining Why NATO’s Attack on Libya Is Illegal?

Explaining Why NATO’s Attack on Libya Is Illegal

Q & A by Mary W Maxwell, PhD, May 2011

 

1. Q. What is the presumed ‘legal basis’ for the attack on Libya?

A. It is Resolution 1973 (of March 17, 2011) of the United Nations Security Council.

 

2. Q. Who has the right to vote in the UN Security Council?

A. The UNSC has 15 members, of which 5 are permanent and hold veto power: US, UK, France, China, Russia, and ten others that are elected to two-year terms.

 

3. Q. How many votes are required to pass a UNSC resolution?

A. Any nine votes suffice, but if one of the Big Five casts a veto, the resolution fails.

 

4. Q. Did Resolution 1973 pass ‘unanimously’?

A. Technically yes, because no one voted against it. There were 9 yes’s. Two of the Big Five abstained, namely Russia and China, and three of the others: Germany, Brazil, and India.

 

5. Q. Which nations cast the yes votes?

A. Technically it is not nations but ‘states,’ i.e., governments, that vote. The yes’s were: US, UK, France, Portugal, Bosnia and Herzegovina, South Africa, Gabon, Lebanon, Nigeria, and Colombia (Colombia is the current chair of the UNSC).

 

6. Q. Did any Arab states object?

A. No. Only one Arab state sits on the Security Council, Lebanon. The Security Council received written encouragement from the Arab League.

 

7. Q. What does Resolution 1973 say?

A. It demands such things as a ceasefire and “a complete end to violence and all attacks against, and abuses of, civilians….” It imposes a no fly zone over Libya, and an arms embargo. It calls for a freeze on the assets of certain Libyans. It does not offer evidence as to what Libya had allegedly done.

 

8. Q. Was there a lead-up to this Security Council Resolution?

A. Yes and No. On February 26, 2001, Resolution 1970 mentioned such things as “concern at the plight of refugees” and “the need to respect the freedoms of peaceful assembly and of expression, including freedom of the media.”

 

9. Q. Where does the United Nations get the authority to use force against a member?

A. Article 39 of the UN Charter says “The Security Council shall determine the existence of any threat to the peace… or any act of aggression and shall…decide what measures shall be taken in accordance with Articles 41 and 42.”

 

10. Q. What is the content of those Articles, 41 and 42?

A. Article 41 is about measures that can be taken that do not involve the use of armed force, such as sanctions. Article 42 says: “Should the Security Council consider that measures provided for in Article 41 would be inadequate… It may take such action by air, sea, or land forces… to maintain and restore international peace and security.”

 

11. Q. Does this mean that the UN will call out its troops?

A. The UN doesn’t have troops. Article 48 says: “The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.”

 

12. Q. Who has provided the military force against Libya?

A. NATO, which is headquartered at Boulevard Leopold in Brussels, Belgium.

 

13. Q. What is NATO?

A. The North Atlantic Treaty Organization. It was an alliance formed during the Cold War, ostensibly against the Soviet threat. But following the 1990 collapse of ‘world communism,’ NATO has started to look like the mailed fist of World Government.

 

14. Q. How did the United States become part of NATO?

A. It joined when a two-thirds senate vote ratified the NATO treaty, sometimes called the Washington Treaty, in 1949. Lately, some former Communist states have joined, e.g., Albania and Bulgaria.

 

15. Q. Legally, how does NATO relate to the UN?

A. NATO’s Article 1 says: “The Parties undertake, as set forth in the Charter of the United Nations, to settle any international dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered….”

 

16. Q. What about the rights of a nation that is being attacked?

A. NATO’s Article 4 says: “The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security if any of the Parties is threatened.”

 

17. Q. Isn’t the territorial integrity of Libya is being threatened today?

A. Yes, but Libya is not a ‘Party”; the member states of NATO are European countries plus the US and Canada.

 

18. Q. As a member of the UN, is Libya entitled to protection from attack?

A. Yes. The quotes above from Articles 39, 41, 42, and 48 of the UN Charter have only to do with extraordinary Security Council action. Earlier in the UN Charter we find the famous Article 2(4), which says: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” Such an obligation to refrain from international aggression is best conveyed in the opening words of the UN Charter’s preamble: “We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind…. “

 

19. Q. So the UN Charter implies in one breath that members can expect protection from attack, and in the next breath it makes the Security Council itself an attacker?

A. The UN Charter condemns forcible measures, but justifies them in instances where “it determines [fairly or otherwise] the existence of any threat to the peace, breach of the peace, or act of aggression.” However, before military force can be used, other means such as conciliation or sanctions must be tried.

 

20. Q. Is Libya attacking other nations?

A. No. Resolution 1973 alleges only internal conflict. The UNSC says it is “Expressing grave concern at the deteriorating situation, the escalation of violence, and the heavy civilian casualties… Reiterating the responsibility of the Libyan authorities to protect the Libyan population … Condemning the gross and systematic violation of human rights, including arbitrary detentions, enforced disappearances, torture and summary executions… Considering that the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity …”

 

21. Q. Does ‘crimes against humanity’ mean that “international humanitarian law’ is being invoked?
 

A. Not exactly. Some treaties, such as the Geneva Conventions, regulate certain acts of war. This is known as International Humanitarian Law. Based on the Rome Statute of 1998, a person accused of war crimes and/or ‘crimes against humanity’ can be hauled before the International Criminal Court at The Hague, as was the Serbian leader Slobodan Milosevic. In fact, the UN Security Council, which is the body that asks the ICC to indict a criminal, has already referred Muammar Qadhafi to the ICC.


22. Q. What happened to Milosevic?
 

A. He died in jail at The Hague, Netherlands, awaiting trial.


23. Q. Has NATO ever forcibly attacked a nation for supposedly humanitarian reasons?

A. Yes. For example, in the late 1990s it attacked Serbia, which was part of the Federal Republic of Yugoslavia. The basis for its current role in Afghanistan is unclear.

 

24. Q. What legal basis was there for NATO’s attack on Serbia?

A. None has yet come to light. NATO did not go through the UN Security Council. The US construed its participation as having been a creature of ‘presidential policy.’

 

25. Q. How is that the United States is legally bound to follow UNSC’s orders?

A. The US joined the United Nations in 1945 by signing a treaty, namely, the UN Charter. The Constitution of the United States says in its Article VI: “… all treaties made or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…anything in the Constitution or Laws of any state to the Contrary notwithstanding.”

 

26. Q. Does that mean that the constitutional requirement for Congress to declare a war could be overruled by way of a treaty?

A. No. Changing the Constitution of 1787 can only be done by amendment and none has ever been proposed that would change the Legislature’s allocation of power. Congress, back in days when it was jealous of its turf, passed legislation, The UN Participation Act (1945), to underscore the need for Congress to approve of any use of American troops under Article 42 of the UN Charter.

 

27. Q. What exactly does the US Constitution say about Congress declaring war?

A. Article I, Section 8 says: “The Congress shall have Power… to declare War….”

 

28. Q. Does the President also have that power?

No. The part of the Constitution that lays out the powers of the Executive branch, namely Article II, does not say anything about a power to declare war. It does say: “The President shall be Commander in Chief of the Army and Navy of the United States,” meaning that once a war is declared he or she is on charge of it. See the website of Louis Fisher, the US’s most ‘with-it’ constitutional scholar: www.loufisher.org.

 

29. Q. Do you mean Congress would have to legislate, to authorize participation of American Military in any action requested by the UN or by NATO?

A. Yes. A joint resolution by the House and Senate would be the ticket.

 

30. Q. Has Congress in fact approved of the attack on Libya?

A. No. Two members proposed a bill to prevent it; most of the other 433 representatives are playing dumb. Ten senators opposed it: Susan Collins, Snowe, DeMint, Ensign, Johnson, Lee, Moran, Sessions, Toomey, and Paul.

 

31. Q. Without Congress’s formal approval, is the US attack on Libya illegal?

A. Yes. Domestically it is illegal. Senator Barack Obama stated the law correctly when interviewed by the Boston Globe in 2007, during the presidency of George W Bush : “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

 

32. Q. But in international law is the United States bound to attack Libya?

A. Of course not. As Professor Alfred Rubin clearly shows in his 1997 book, “Ethics and Authority in International Law,” no such subjection of one sovereign state to another, or to a multilateral group, is legally possible.

 

33. Q. Does anything legally prevent Congress from authorizing an attack on a nation that has not ‘deserved’ it?

A. If we look only at Article I of the Constitution, the answer would be: “Congress can declare war against any nation anytime.” However, Article VI is a reminder that if the US has signed a treaty to restrain itself from attacking – as indeed it did in Article 2 of the UN Charter, that puts a restriction on Congress’s freedom. The treaty is the supreme law of the land “any Thing in the Constitution…. to the Contrary notwithstanding.”

 

34. Q. But doesn’t Professor Rubin say “Nothing restricts the United States”?

A. He means no one outside can do the restricting, but the Constitution itself does the restricting, domestically. Such is the main point of ‘rule of law.’

 

35. Q. Does anything in the 1945 treaty known as the United Nations Charter go against the kind of attack now being made on Libya?
 

A. Yes. Article 2(7) of that Charter says: “Nothing contained in the present Charter shall authorize the United Nations to intervene on matters which are essentially with in the domestic jurisdiction of any state…” This ‘2(7)’ item was called the ‘Stay out of my backyard principle’ and was virtually sacred from 1945 to the 1990s. Granted, that item does end with the phrase “but this principle shall not prejudice the application of enforcement measures under Chapter VII” (Chapter VII being Articles 39 – 51). But Article 24, which sets out the role of the Security Council, reminds it to “act in accordance with the Purposes and the Principles of the United Nations.” The SC is not a tribunal with a mandate to judge the behavior of sovereign states.

 

36. Q. What about the fact that Resolution 1973 condemns torture, yet certain other nations do the same? Isn’t that a double standard?

A. It is up to individuals to maintain cerebral ground against such double-standard talk, as the diplomats steadfastly treat language as something to be ‘called into service.’

 

37. Q. UNSC Resolution 1973 mentions: “Reiterating the responsibility of the Libyan authorities to protect the Libyan population.” Isn’t that a ‘Stay out of my backyard’ sort of thing?

A. Yes, it is a surprisingly clear example of flouting 2(7). Years ago it would have been considered unwise for powerful nations to put such a remark in writing lest it come back to haunt them.

 

38. Q. UNSC resolution 1973 calls for a freezing of the assets of Libyan authorities. Is that normal? Could it constitute plain theft?

A. Courts have allowed it, as with some of the wealth of the Philippines leader Ferdinand Marcos. Domestically, the US has legislated for seizing the property of Americans in many circumstances, known as ‘asset forfeiture.’ It is a bit surprising, however, that in the order to freeze the assets of “Muammar Qadhafi” one of the justifications given is his “Responsibility for ordering repression of demonstrations…”

As to the question of ‘plain theft,’ it is noteworthy that the UNSC has not tried to show how the freezing of assets would restore peace. The SC appears to be ultra vires, going beyond its authority, in naming specific people who should be deprived of their property. The SC also names some who are to be placed under a travel ban.

 

39. Q. Let’s say Qadhafi felt aggrieved. To whom could he make his plaint?

A. One possibility is for him to bring a lawsuit. Qadhafi may not succeed in a US Court, in so far as his suit, for the US killing of his adopted daughter Hanna, was dismissed as frivolous. (Her death occurred in 1986 when President Reagan ordered a retaliatory strike for the bombing of a disco in Germany, allegedly by Libyans, in which two American soldiers were killed. The UN General Assembly passed a resolution condemning that retaliatory strike as “a violation of the Charter of the United Nations.”)

As a state, Libya can always go to the International Court of Justice to sue other states.

 

40. Q. At that court, can Libya sue the collective entity known as NATO, or even sue the United Nations Security Council?

A. Either of those would make an interesting exercise. At the very least, Libya could ask the ICJ for an advisory opinion about Article 39 with regard to aspects of the current situation. In 1996, the General Assembly put a question to the ICJ, about nuclear weapons, and got an advisory opinion. Qadhafi would need to hurry, though, as the outside powers are discussing ‘regime change,’ and the ICJ will only listen to the ‘state of Libya’; it does not deal with individuals. One can easily locate the Statute of the ICJ, as it is formally annexed to the UN Charter.

 

41. Q. Is there scope for Libya to say that war crimes have been committed against it?

A. Canadian economist Professor Michel Chossudovsky has already suggested it. He said, at globalresearch.ca that we see the evidence in NATO’s own dispatch dated April 23, 2011 from Naples: “ NATO has conducted the following activities associated with Operation UNIFIED PROTECTOR: Since the beginning of the NATO operation (31 March 2011), a total of 3,438 sorties and 1,432 strike sorties.” Presumably Chossudovsky means that these bombings are criminal under the general crime of aggression. That crime was declared at Nuremberg, at that time called “crimes against peace”, but has never been added to the Geneva Conventions.

 

42. Q. Can war criminals in NATO, if there be such, get indicted?

A. Yes. Most nations have domestic laws that permit the bringing to justice of one’s own war criminals or those of other states. The crime of aggression, which always reflects a government’s decision, rather than the actions of low-rank soldiers, has recently been added to the jurisdiction of the International Criminal Court – with the proviso, however, that it will not come onto force until 2017.

 

43. Q. Does the United States have any way to punish war criminals?

A. Oh yes, of course. The War Crimes Act of 1996, as codified at 18 USC 2441, says: “Whoever, whether inside or outside the United States, commits a war crime [if he is a member of the armed forces of the US] shall be fined under this title or imprisoned for life or any term of years, or both….” This includes someone who “willfully kills or causes serious injury to civilians.” There is also law against genocide at18 USC 1091.

 

44. Q. Is there any Neutrality Act in the United States?

A. Yes. It can be found on the Internet at 18 USC 960: “Whoever…knowingly begins…or prepares a means for…any military …enterprise to be carried on from thence against the territory or dominion of any foreign prince…with whom the United States is at peace, shall be fined…or imprisoned….”

45. Q. Please state, once again: is the current NATO action against Libya illegal?

A. Yes. For the US, it is unconstitutional. For all members of the UN, it does not meet the legal intent of Article 39, which is that the Security Council must find the offending nation to be disturbing international peace, and it also arrogates to the Security Council some new powers to which the treaty signers never agreed (such as the ban on travel for some Libyans). As for NATO, it is disobeying its own Article 1, “The Parties undertake…to settle any international dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered….” – and, more generally, it has no legitimate basis for acting as ‘world government” and is thus acting ultra vires.

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

Mary W Maxwell, PhD, can be contacted at www.ProsecutionForTreason.com. She hereby gives away all rights to the above Q and A, including movie rights.

She appreciates the following helpful comments made about this Q & A by Elias Davidsson, editor of juscogens.org:

“In strict legal terms, states have delegated the powers to determine a breach of the peace to the Security Council and have vowed to abide by its decisions.   The SC is empowered to determine any circumstance, including me – Elias Davidsson – eating an apple, as a threat to international peace and security (Art. 39), after which it can impose sanctions or order the use of force.  Challenging such determinations is a good faith duty of member states, in my opinion, under the principles of the Vienna Convention on the Law of Treaties. They must, under the principle of good faith, challenge decisions that are against jus cogens, or that are made ultra vires by international organizations to which they have delegated some specific powers. I also note that the powers of the SC to invoke Chapter VII are limited by general principles of international law and by jus cogens. See two of my papers: “The Security Council’s Obligations of Good Faith” and “Legal Boundaries of UN Sanctions.” The Security Council was established to secure the peace, not to give to its preeminent members a legal garb for war. It must, therefore, demonstrate in a compelling manner, that the use of force is (a) unavoidable; (b) necessary; (c) will achieve the desired results; and (d) can be undertaken without violating unproportionally human rights.” – Elias Davidsson

 

 

 

No-fly zone: Clouding words of war

http://english.aljazeera.net/indepth/opinion/2011/03/201132881618969257.html

 

No-fly zone: Clouding words of war

 

The West has used euphemism to deny a state of war against Gaddafi under the guise of a humanitarian mission.

 

Tarak Barkawi, 28 Mar 2011 13:41

 

The cost of using only airpower against Gaddafi is strategic incoherence that will likely result in a stalemate [REUTERS]

 

Phantasms from the 1990s are upon us: no-fly zones; the rhetoric of humanitarian war in Washington, Europe and the UN; guarantees that no US ground troops will be deployed; an air war which alone cannot decisively affect earthbound events.

 

President Obama swung for ringing tones in his statement on Libya, condemning idleness in the face of merciless tyrants who brutally assault innocents.

 

In the legal codes through which the international community acknowledges so untoward a happening as war, the UN resolved to protect civilians and create a cordon sanitaire around the blighted country.

 

But it was all a faraway echo from the Yugoslav heyday of believing people could be bombed for humanitarian effect.

 

The language of liberal war may still flow as easily in the West as Libya’s sweet crude, but even the true believers are running on fumes on this one. Few critics have even bothered to point out the obvious selectivity. Obama meant no idling before this particular tyrant, while the UN Security Council offered the beatific state of protected innocence to some Libyans only, not to Syrians, Yemenis, Palestinians or Bahrainis, much less those suffering in the Ivory Coast, Zimbabwe or elsewhere.

 

Nonetheless the idea of liberal war, of the use of force for humanitarian objectives, continues to cloud opinion and profoundly informs the official terms of debate, in international forums and especially in Western Europe. It also shapes the character of coalition operations over Libya.

 

Denying war, the art of euphemisms

 

Liberal war is so useful, particularly to ‘good Europeans’, because it denies it is war. It is a no-fly zone protecting human rights!

 

While quite obviously joining the Libyan rebels in their war on the regime, coalition commanders are forced to pretend otherwise. They regularly and politely inform Gaddafi’s forces where they need to regroup to avoid being destroyed in the name of universal values.

 

In essence, and without ever saying so, the message to Gaddafi is that he must stop defending himself from those who would overthrow him. Why, we might ask, is it not possible to speak more plainly, at least to ourselves? Why must war be confronted with liberal euphemisms?

 

At the core of liberal war is a contradiction between big rhetoric – humanity, innocence, evil – and limited liability, signalled by ‘no ground troops’ and the pathetic legions of UN peacekeepers.

 

In wars primarily justified on altruistic grounds, the elected leaders of the Western democracies wisely, if conveniently, spare the blood if not the dollars of their own citizens.

 

The chosen weapon is air power and the cost is strategic incoherence. Absent a terrestrial policy, air forces are left to blow things up, surveil the results, and fly about. Other things being equal, the likely outcome is stalemate.

 

Most pernicious is the way liberal war frames understanding of conflicts. It performs a sleight of hand that can only be admired. A dramatic play

 

There is space for two main actors, the humane intervener (typically the international community led by the West) and the barbaric perpetrator (a changing and selective cast of leaders, regimes and ethnic groups). As if by magic, real countries and peoples, with interwoven histories, become characters in a morality play, essential types who behave according to innate characteristics.

 

The drama comes in various versions, and by no means does the West always come out well in the end. But the terms of thought are set in riveting fashion: interest and ideals, tragedy and politics, bureaucratic inaction and charisma.

 

Historical memory is a casualty so instantaneous no one notices. The US fought its first war in what is now Libya, against the Barbary pirates, also justified by humanitarian concerns undergirded with commercial interest. Blinded by tales of well-intentioned Westerners and violent natives again and again, it becomes impossible to see the shared, interconnected histories that led to the current conflict, and within which Libyans, Westerners and others are situated.

 

Libya was granted independence as a kingdom only sixty years ago, with the US and UK as patrons, supplying cash and arms in exchange for oil and stability.

 

As elsewhere, then and now, this combination generated popular resentment. It provided the ground for political alternatives, which Gaddafi seized. History’s funhouse He may be a character from history’s funhouse, sent to remind us that contingency’s reign is great, but his origins are to be found in the conjoined histories of the West and the rest.

 

More recently, Gaddafi’s border police and coast guard, trained and assisted by the EU, have been greatly valued by the ‘good Europeans’ for helping keep out the Africans.

 

Liberal war’s last service is to locate the source of violence in the natives, on the backward peoples of the non-European world, not on the Westerners who exploit, invade, occupy and bomb.

 

If we go by official rhetoric, the problem in Iraq and Afghanistan apparently has to do with religious and ethnic prejudice among the peoples there, who irrationally keep killing one another as well as Western soldiers kindly sent to modernise them.

 

The great cost of liberal war is clarity. The West now risks creating a situation where it neither allows nor enables the rebels to overthrow Gaddafi, nor will it do so itself.

 

As in Bosnia and Kosovo, to supply arms or allow in Arab volunteers, would violate the supposed neutrality of humanitarian intervention. Gaddafi can turn to death squads and snipers to carry on his fight.

 

War is not a morality tale, but a violent mutual embrace. Serious thinking begins with acceptance that we in the West are now combatants, and ethical responsibility requires seeing beyond the seductions of liberalism. Tarak Barkawi is Senior Lecturer, Centre of International Studies, University of Cambridge. He specialises in the study of war, armed forces and society with a focus on conflict between the West and the global South in historical and contemporary perspective. He is author of Globalization and War, as well as many scholarly articles.

 

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.

Neo-cons urge illegal use of force

 

 

Neo-Con Hawks Take Flight over Libya

*Jim Lobe’s blog on U.S. foreign policy can be read at http://www.lobelog.com.

WASHINGTON, Feb 25, 2011 (IPS) – In a distinct echo of the tactics they pursued to encourage U.S. intervention in the Balkans and Iraq, a familiar clutch of neo-conservatives appealed Friday for the United States and NATO to “immediately” prepare military action to help bring down the regime of Libyan leader Muammar Gaddafi and end the violence that is believed to have killed well over a thousand people in the past week.

The appeal, which came in the form of a letter signed by 40 policy analysts, including more than a dozen former senior officials who served under President George W. Bush, was organised and released by the Foreign Policy Initiative (FPI), a two-year-old neo-conservative group that is widely seen as the successor to the more-famous – or infamous – Project for the New American Century (PNAC). 

Warning that Libya stood “on the threshold of a moral and humanitarian catastrophe”, the letter, which was addressed to President Barack Obama, called for specific immediate steps involving military action, in addition to the imposition of a number of diplomatic and economic sanctions to bring “an end to the murderous Libyan regime”. 

In particular, it called for Washington to press NATO to “develop operational plans to urgently deploy warplanes to prevent the regime from using fighter jets and helicopter gunships against civilians and carry out other missions as required; (and) move naval assets into Libyan waters” to “aid evacuation efforts and prepare for possible contingencies;” as well as “(e)stablish the capability to disable Libyan naval vessels used to attack civilians.” 

Among the letter’s signers were former Bush deputy defence secretary Paul Wolfowitz; Bush’s top global democracy and Middle East adviser; Elliott Abrams; former Bush speechwriters Marc Thiessen and Peter Wehner; Vice President Dick Cheney’s former deputy national security adviser, John Hannah, as well as FPI’s four directors: Weekly Standard editor William Kristol; Brookings Institution fellow Robert Kagan; former Iraq Coalition Provisional Authority spokesman Dan Senor; and former Undersecretary of Defense for Policy and Ambassador to Turkey, Eric Edelman. 

It was Kagan and Kristol who co-founded and directed PNAC in its heyday from 1997 to the end of Bush’s term in 2005. 

The letter comes amid growing pressure on Obama, including from liberal hawks, to take stronger action against Gaddafi. 

Two prominent senators whose foreign policy views often reflect neo-conservative thinking, Republican John McCain and Independent Democrat Joseph Lieberman, called Friday in Tel Aviv for Washington to supply Libyan rebels with arms, among other steps, including establishing a no-fly zone over the country. 

On Wednesday, Obama said his staff was preparing a “full range of options” for action. He also announced that Secretary of State Hillary Clinton will meet fly to Geneva Monday for a foreign ministers’ meeting of the U.N. Human Rights Council to discuss possible multilateral actions. 

“They want to keep open the idea that there’s a mix of capabilities they can deploy – whether it’s a no-fly zone, freezing foreign assets of Gaddafi’s family, doing something to prevent the transport of mercenaries (hired by Gaddafi) to Libya, targeting sanctions against some of his supporters to persuade them to abandon him,” said Steve Clemons of the New America Foundation, who took part in a meeting of independent foreign policy analysts, including Abrams, with senior National Security Council staff at the White House Thursday. 

During the 1990s, neo-conservatives consistently lobbied for military pressure to be deployed against so-called “rogue states”, especially in the Middle East. 

After the 1991 Gulf War, for example, many “neo-cons” expressed bitter disappointment that U.S. troops stopped at the Kuwaiti border instead of marching to Baghdad and overthrowing the regime of Saddam Hussein. 

When the Iraqi president then unleashed his forces against Kurdish rebels in the north and Shia insurgents in the south, they – along with many liberal interventionist allies – pressed President George H.W. Bush to impose “no-fly zones” over both regions and take additional actions – much as they are now proposing for Libya – designed to weaken the regime’s military repressive capacity. 

Those actions set the pattern for the 1990s. To the end of the decade, neo-conservatives, often operating under the auspices of a so-called “letterhead organisation”, such as PNAC, worked – often with the help of some liberal internationalists eager to establish a right of humanitarian intervention – to press President Bill Clinton to take military action against adversaries in the Balkans – in Bosnia and then Kosovo – as well as Iraq. 

Within days of 9/11, for example, PNAC issued a letter signed by 41 prominent individuals – almost all neo- conservatives, including 10 of the Libya letter’s signers – that called for military action to “remove Saddam Hussein from power in Iraq”, as well as retaliation against Iran and Syria if they did not immediately end their support for Hezbollah in Lebanon. 

PNAC and its associates subsequently worked closely with neo-conservatives inside the Bush administration, including Abrams, Wolfowitz, and Edelman, to achieve those aims. 

While neo-conservatives were among the first to call for military action against Gaddafi in the past week, some prominent liberals and rights activists have rallied to the call, including three of the letter’s signatories: Neil Hicks of Human Rights First; Bill Clinton’s human rights chief, John Shattuck; and Leon Wieseltier of The New Republic, who also signed the PNAC Iraq letter 10 years ago. 

In addition, Anne-Marie Slaughter, until last month the influential director of the State Department’s Policy Planning office, cited the U.S.-NATO Kosovo campaign as a possible precedent. “The international community cannot stand by and watch the massacre of Libyan protesters,” she wrote on Twitter. “In Rwanda we watched. In Kosovo we acted.” 

Such comments evoked strong reactions from some military experts, however. 

“I’m horrified to read liberal interventionists continue to suggest the ease with which humanitarian crises and regional conflicts can be solved by the application of military power,” wrote Andrew Exum, a counter-insurgency specialist at the Center for a New American Security, whose Abu Muqawama blog is widely read here. “To speak so glibly of such things reflects a very immature understanding of the limits of force and the difficulties and complexities of contemporary military operations.” 

Other commentators noted that a renewed coalition of neo- conservatives and liberal interventionists would be much harder to put together now than during the Balkan wars of the 1990s. 

“We now have Iraq and Afghanistan as warning signs, as well as our fiscal crisis, so I don’t think there’s an enormous appetite on Capitol Hill or among the public for yet another military engagement,” said Charles Kupchan, a foreign policy specialist at the Council on Foreign Relations (CFR). 

“I support diplomatic and economic sanctions, but I would stop well short of advocating military action, including the imposition of a no-fly zone,” he added, noting, in any event, that most of the killing in Libya this week has been carried out by mercenaries and paramilitaries on foot or from vehicles. 

“There may be some things we can do – such as airlifting humanitarian supplies to border regions where there are growing number of refugees, but I would do so only with the full support of the Arab League and African Union, if not the U.N.,” said Clemons. 

“(The neo-conservatives) are essentially pro-intervention, pro-war, without regard to the costs to the country,” he told IPS. “They don’t recognise that we’re incredibly over- extended and that the kinds of things they want us to do actually further weaken our already-eroded stock of American power.” 

*Jim Lobe’s blog on U.S. foreign policy can be read at http://www.lobelog.com.

 

The multilateral pact ‘renunciation of war’

THE MULTILATERAL PACT

"RENUNCIATION OF WAR"

BY

EDWIN BORCHARD

(An address delivered at the Williamstown Institute of Politics August 22, 1928)

1928

I

THE origin of the negotiations between the United States and other powers leading to the conclusion of the so-called Briand-Kellogg Pact for the reununciation of war is well known. Beginning with an expression of good-will in M. Briand’s note of April 6, 1927, commemorating the entry of the United States into the war and expressing France’s willingness to conclude a treaty renouncing war between France and the United States, the negotiations developed rapidly. On June 20, 1927, the French Foreign Minister presented the draft of a treaty embodying his proposal, providing for a condemnation of "recourse to war" and renouncing war as between France and the United States as an "instrument of their national policy." The settlement of all disputes was never to be sought "except by pacific means."

On December 28, 1927, Mr. Kellogg proposed to the French ambassador the extension of the proposed declaration to all the principal Powers. It was argued in the United States that, if the treaty were signed by the United States and France alone, it would be a treaty of alliance. In his accompanying draft of a treaty, Mr. Kellogg recommended the outright and unconditional renunciation of war and the solution of disputes by pacific means only.

The French press was critical. It was maintained that France had obligations to the League of Nations and could not make these new commitments. But the criticism was dropped after forty-eight hours on the publication of the French reply undertaking to renounce "wars of aggression." This gave apparently a new turn to the negotiations. The State Department did not reply officially, but officers of the Department pointed out that the term "aggressive" changed the entire meaning of the proposition and was not acceptable to the United States. In this position the State Department seems to have had the support of the American press. Editorially it was agreed that "renunciation of aggressive war" was too intricate an expression to define and that the French interpolation of this qualification left Mr. Kellogg’s proposition denatured of its vital part and meaningless. Mr. Kellogg pointed out in his new note that the first French note of June 20, 1927, contained no limitation of wars of aggression. In this connection it is well to note that Sir Austen Chamberlain rejected the attempted definition of "aggressor" in the Geneva Protocol as, I believe, one who declines to submit a dispute to discussion in these words: "I therefore remain opposed to this attempt to define the ‘aggressor’ because I believe that it will be a trap for the innocent and a signpost for the guilty."

Considerable correspondence took place in the early part of 1928 as to the construction to be given to the proposed treaty. In his note of February 27, 1928, in explaining his objection to qualifications on the obligation to renounce war, Mr. Kellogg stated:

The ideal which inspires the effort so sincerely and so hopefully put forward by your [the French] Government and mine is arresting and appealing just because of its purity and simplicity; and I cannot avoid the feeling that if governments should publicly acknowledge that they can only deal with this ideal in a technical spirit and must insist on the adoption of reservations impairing, if not utterly destroying, the true significance of their common endeavors, they would be in effect only recording their impotence, to the keen disappointment of mankind in general.

The same thought was expressed in Mr. Kellogg’s speech to the Council on Foreign Relations on March 15, 1928, in which he said:

It seems to me that any attempt to define the word "aggression," and by exceptions and qualifications to stipulate when nations are justified in going to war with one another, would greatly weaken the effect of any treaty such as that under consideration and virtually destroy its positive value as a "guaranty of peace."

The subsequent negotiations, however, disclose the unfortunate fact that these very exceptions and qualifications to which Mr. Kellogg objected as so nullifying in effect have, in fact, found their way into the treaty as now universally construed.

The French Government maintained that the treaties must be construed so as not to bar the right of legitimate defense, the performance of obligations under the Covenant of the League of Nations, under the treaties of Locarno, under its treaties of alliance with its allies-now for some unexplainable reason called treaties of neutrality-that the treaty was to become ineffective if violated by one nation, and that it was to be signed by every state before it became effective as to any, state.

With the exception of this last reservation, Secretary Kellogg agreed to this interpretation of the French Government-in his speech before the American Society of International Law on April 28, 1928, and incorporated his interpretation of the reservations as to self-defense, wars under the League Covenant, under the treaties of Locarno, and certain undefined and evidently unknown "neutrality" treaties, in his note of June 23, 1928, to the Powers, some fifteen in number, adding that; none of these governments has expressed any dissent from the above-quoted construction."

In his note of May 19, 1928, accepting the American proposition in principle, Sir Austen Chamberlain for Great Britain expressed his assent to the reservations made by France and added a new one in the following paragraph:

There are certain regions of the world, the welfare and integrity of which constitute a special and vital interest for our peace and safety. His Majesty s Government have been at pains to make it clear in the past that interference with these regions cannot be suffered. Their protection against attack is to the British Empire a measure of self-defense. It must be clearly understood that His Majesty’s Government in Great Britain accept the new treaty upon the distinct understanding that it does not prejudice their freedom of action in this respect. The Government of the United States have comparable interests, any disregard of which by a foreign Power they have declared they would regard as an unfriendly act. (Italics mine.)

The words in italics were repeated in the British note of July 18, 1928, undertaking to sign the treaty only on the understanding that the British Government maintained this freedom of action with respect to those regions of the world in which it had "a special and vital interest."

II

The original proposition of Mr. Kellogg was an unconditional renunciation of war. The treaty note qualified by the French and British reservations constitutes no renunciation or outlawry of war, out in fact and in late a solemn sanction for all wars mentioned in the exceptions and qualifications. When we look at the exceptions we observe that they include wars of self-defense, each party being free to make its own interpretation as to when self-defense is involved, wars under the League Covenant, under the Locarno treaties, and under the French treaties of alliance. If self-defense could be limited to the terms "to defend its territory from attack or invasion," as suggested by Mr. Kellogg, it would be of some value, but it is understood that no specific definition of self-defense is necessarily accepted.

Considering these reservations, it would be difficult to conceive of any wars that nations have fought within the least century, or are likely to fight in the future, that cannot be accommodated under these exceptions. Far from constituting an outlawry of war, they constitute the most definite sanction of specific wars that has ever been promulgated. War heretofore has been deemed like a disease-neither legal nor illegal. Now by a world treaty, the excepted wars obtain the stamp of legality. This cannot be charged primarily to Secretary Kellogg, whose intentions were of the best, but is a result of the reservations insisted upon by European Powers, which, it is still to be feared, comprehend peace as a condition of affairs achieved through war or the threat of war. The mere renunciation of war in the abstract in the first article of the treaty has but little scope for application, in view of the wars in the concrete, which the accompanying construction of the treaty sanctions. It is idle to suppose that the official construction given to the treaty by all the signatory Powers is not as much an integral part of the treaty as if it had been written into Article 1.

Again it will be noticed that we recognize a British claim to use war as an instrument of national policy in certain undefined "regions of the world," any "interference" with which by anybody, including the United States, will be regarded by Great Britain as a cause of war. To this we subscribe. When the United States at the first Hague Conference secured recognition by our cosignatories for the Monroe Doctrine, it was regarded as an achievement of American diplomacy. But the Monroe Doctrine has geographical limits known to everybody. To this new British claim there are no geographical limits. The vague and expansive terms of the British claim to make war, now recognized by us, covers any part of the world in which Britain has "a special and vital interest." No such broad claim of the right to make war has ever before been recognized.

But the most extraordinary feature of this treaty still remains to be mentioned. It will have been noticed that we recognize the legality of League wars and Locarno wars. As Europe correctly seems to assume, we are now bound by League decisions as to "aggressors" and League policy generally, but without any opportunity to take part in the deliberations leading to League conclusions. We indeed recognize by this treaty the legal right of the League to make war even against us, and it will be observed that Sir Austen Chamberlain in his note of May 19, 1928, frankly admits that respect for the obligations arising out of the Covenant is "the foundation of the policy" of Great Britain. Whether the further European claim that we are bound to support League conclusions as to "aggressor" nations, and other political conclusions, either by joining with the League or by refusing to trade with the League-declared pariah, is sustainable or not, at the very best it places us in the uncomfortable position either of being bound by decisions in the making of which we had no part or of having recriminations leveled against us for refusing to support our treaty.

The new contract begins with diverse interpretations of its obligations, for European views, reflected by Mr. Edwin James of the New York Times, leave no doubt that Europe regards this treaty as a means of involving us in European politics. And we are entangled in the most dangerous way, for we are bound by decisions made in our absence, even decisions made against ourselves-because the recognition of the French and British reservations, now made the authoritative interpretation of the treaty by all the signatories, is a commitment for us. Our hands are tied, not theirs. The reservations are made at our expense, not theirs. Far better and safer would it be had we openly joined the League of Nations and been privileged to take part in deliberations which may lead to most important consequences. We might have been able to prevent undesirable conclusions and use our bargaining power to obtain occasional benefits and advantages instead of disadvantages only. We are now about to sign a treaty in which we expressly recognize the right of the other signatories to make war upon anybody, including ourselves, for the purpose of enforcing, even against us, their mutual obligations under the Covenant of the League of Nations, not to mention individual undefined national interests in any part of the world. They alone will determine the occasion of such action, without our participation.

In justice to Europe, it cannot be said that they have left us in doubt as to their conception of our obligations. Indeed, these obligations are expressly or implicitly contained in the very reservations which the United States has accepted. Should we repudiate these commitments, we shall be denounced as a violator of our own treaty and not without some justification.

It has not been a pleasant task to analyze this Pact of Paris. The original American proposal was progressive, pure and simple, to use Mr. Kellogg’s expression. The European amendments transformed the proposal into something entirely different-into a universal sanction for war, into a recognition by us of Europe’s right to wage war, even against the United States, whenever the individual interests of certain nations are deemed to require it and whenever the League, in its uncontrolled discretion, decides upon it.

Need more be said? Would it not be far better either to join the League outright and have a share in those deliberations which to us may be so portentous or, better still, make the recourse to arbitration of justiciable issues and the submission to conciliation of non-justiciable issues obligatory at the request of either party? That would be a positive commitment which would make war extremely difficult, whereas the present treaties make war extremely easy. It is to be doubted whether the supposed valuable psychological effects of renunciation of war in the abstract can counterbalance the politic recognition of the legality of war in the concrete-not to speak of its commitments for American foreign policy. If this treaty is ever ratified, the test of its efficacy will be its effect on a limitation of armaments. The President’s declaration that it is not expected to have any such effect and the avowed pleasure of certain foreign official newspapers at that promise hardly justify at the moment strong hopes of such a result. The abolition of war will, therefore, have to be pursued along other lines. Possibly in the elimination of the economic causes of conflict, including the attempted monopoly of raw materials and markets, and in the entente of business interests across national boundaries, there lies more hope than in legal efforts to preserve by force the status quo. Other machinery is needed to make changes in existing conditions, when time and circumstances require. To that effort but little attention has yet been paid. These matters are mentioned merely to indicate that, even if the Pact of Paris is not ratified or is accompanied by explanatory reservations on our part, the solution of the problem of war and peace among independent nations has, perhaps, hardly been begun.

Kellogg-Briand Pact : A Bibliography Compiled by the Avalon Project

Kellogg-Briand Pact : A Bibliography Compiled by the Avalon Project


Butler, Nicholas Murray, 1862-1947
The path to peace : essays and addresses on peace and its making / by Nicholas Murray Butler.
New York : Scribner, 1930
xiii,320p. ; 19cm

Cooper, Russell Morgan, 1907-
American consultation in world affairs for the preservation of peace, by Russell M. Cooper; with an introduction by Dr. James T. Shotwell.
New York, The Macmillan Company, 1934

The Covenant and the Pact.
Geneva : Geneva Research Information Committee, The League of Nations Association of the U.S., 1930
23 p. ; 28 cm

Ferrell, Robert H.
Peace in their time; the origins of the Kellogg-Briand pact,
New York, W. W. Norton [1969]
Description: x, 293 p. 23 cm.

Ferrell, Robert H.
Peace in their time; the origins of the Kellogg-Briand pact.
New Haven, Yale University Press, 1952.
x, 293 p. 25 cm.

Gerould, James Thayer, 1872-
Selected articles on the pact of Paris, officially the general pact for the renunciation of war, compiled by James Thayer Gerould.
New York, The H.W. Wilson company, 1929
xiv, 287 p. 20 cm

Hudson, Manley Ottmer, 1886-
By pacific means; the implementation of article two of the pact of Paris; addresses delivered at the Fletcher school of law and diplomacy at Tufts college, March 1935, by Manley O. Hudson.
New Haven, Pub. for the Fletcher school of law and diplomacy by Yale university press; London, H. Milford, Oxford university press, 1935
vi p., 1 l., 200 p. 21 cm
The texts of several documents related to international arbitration are given as appendices (p. [101]-187)

International Law Association
Briand-Kellogg pact of Paris (August 27, 1928) Articles of interpretation as adopted by the Budapest Conference, 1934, together with the report of the relevant proceedings .
London, Sweet & Maxwell, Ltd., 1934

Miller, David Hunter, 1875-
The peace pact of Paris : a study of the Briand-Kellogg Treaty / by David Hunter Miller.
New York : G.P. Putnam’s Sons, 1928
vii, 287 p. ; 23 cm

Myers, Denys P. (Denys Peter), b. 1884
Origin and conclusion of the Paris Pact; the renunciation of war as an instrument of national policy, by Denys P. Myers.
Boston, 1929
3 p. l., 196 p. incl. tables. 20 cm

Page, Kirby, 1890-1957
The renunciation of war; an evaluation of the strength and weakness of the recent multilateral treaty renouncing war as an instrument of national policy; and a consideration of next steps in the foreign policy of the United States [by] Kirby Page.
Garden City, N.Y., Doubleday, Doran & company, inc. [c1928]
30 p. 20 cm

Security and defense: texts of White paper on defense and of Parliamentary debates; text of German conscription announcement; texts of British, French, and Italian notes of protest; text of Sir John Simon’s statement to the House of commons ..
New York City, Carnegie endowment for international peace, Division of intercourse and education [1935]
2 p.l., 155-285 p. 20 cm

Stimson, Henry Lewis, 1867-1950
The pact of Paris: three years of development. Address by the Honorable Henry L. Stimson, secretary of state, before the Council on foreign relations, New York city, August 8, 1932
Washington, U.S. Govt. print. off., 1932
1 p. l., 12 p. 23 x 10 cm

Shotwell, James Thomson, 1874-1965
The pact of Paris, with historical commentary, by James T. Shotwell; text of treaty and related documents ..
Worcester, Mass., New York City, Carnegie Endowment for International Peace, Division of Intercourse and Education [1928]
96 p. 19 cm

Shotwell, James Thomson, 1874-1965
War as an instrument of national policy and its renunciation in the Pact of Paris, by James T. Shotwell.
New York : Harcourt, Brace, 1929
x, 310 p. ; 23 cm

Stoner, John Edgar
S.O. Levinson and the Pact of Paris; a study in the techniques of influence.
Chicago, IL , The University of Chicago press [1943]
xvi,367p. front.(port.) 24cm

Wheeler-Bennett, John Wheeler, Sir, 1902-1975
Information on the renunciation of war, 1927-1928, by J. W. Wheeler-Bennett; with an introduction by Philip H. Kerr; issued under the auspices of the Information Service on International Affairs.
London, G. Allen & Unwin ltd. [1928]
3 p. l., [9]-191, [1] p. 22 cm

Whitton, John Boardman, 1892-
What follows the pact of Paris?
Worcester, Mass., New York city, Carnegie endowment for international peace, Division of intercourse and education [1932]
52 p. 20 cm

Kellogg-Briand Pact 1928

Treaty between the United States and other Powers providing for the renunciation of war as an instrument of national policy. Signed at Paris, August 27, 1928; ratification advised by the Senate, January 16, 1929; ratified by the President, January 17, 1929; instruments of ratification deposited at Washington by the United States of America, Australia, Dominion of Canada, Czechoslovkia, Germany, Great Britain, India, Irish Free State, Italy, New Zealand, and Union of South Africa, March 2, 1929: By Poland, March 26, 1929; by Belgium, March 27 1929; by France, April 22, 1929; by Japan, July 24, 1929; proclaimed, July 24, 1929.

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.
A PROCLAMATION.

WHEREAS a Treaty between the President of the United States Of America, the President of the German Reich, His Majesty the King of the Belgians, the President of the French Republic, His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India, His Majesty the King of Italy, His Majesty the Emperor of Japan, the President of the Republic of Poland, and the President of the Czechoslovak Republic, providing for the renunciation of war as an instrument of national policy, was concluded and signed by their respective Plenipotontiaries at Paris on the twenty-seventh day of August, one thousand nine hundred and twenty-eight, the original of which Treaty, being in the English and

the French languages, is word for word as follows:

THE PRESIDENT OF THE GERMAN REICH, THE PRESIDENT OF THE UNITED STATES OF AMERICA, HIS MAJESTY THE KING OF THE BELGIANS, THE PRESIDENT OF THE FRENCH REPUBLIC, HIS MAJESTY THE KING OF GREAT BRITAIN IRELAND AND THE BRITISH DOMINIONS BEYOND THE SEAS, EMPEROR OF INDIA, HIS MAJESTY THE KING OF ITALY, HIS MAJESTY THE EMPEROR OF JAPAN, THE PRESIDENT OF THE REPUBLIC OF POLAND THE PRESIDENT OF THE CZECHOSLOVAK REPUBLIC,

Deeply sensible of their solemn duty to promote the welfare of mankind;

Persuaded that the time has, come when a frank renunciation of war as an instrument of na tional policy should be made to the end that the peaceful and friendly relations now existing between their peoples may be perpetuated;

Convinced that all changes in their relations with one another should be sought only by pacific means and be the result of a peaceful and orderly process, and that any signatory Power which shall hereafter seek to promote its ts national interests by resort to war a should be denied the benefits furnished by this Treaty;

Hopeful that, encouraged by their example, all the other nations of the world will join in this humane endeavor and by adhering to the present Treaty as soon as it comes into force bring their peoples within the scope of its beneficent provisions, thus uniting the civilized nations of the world in a common renunciation of war as an instrument of their national policy;

Have decided to conclude a Treaty and for that purpose have appointed as their respective

Plenipotentiaries:
THE PRESIDENT OF THE GERMAN REICH:
Dr Gustav STRESEMANN, Minister of Foreign Affairs;
THE PRESIDENT OF THE UNITED STATES OF AMERICA:
The Honorable Frank B. KELLOGG, Secretary of State;
HIS MAJESTY THE KING OF THE BELGIANS:
Mr Paul HYMANS, Minister for Foreign Affairs, Minister of State;
THE PRESIDENT OF THE FRENCH REPUBLIC:
Mr. Aristide BRIAND Minister for Foreign Affairs;
HIS MAJESTY THE KING OF GREAT BRITAIN, IRELAND AND THE BRITISH DOMINIONS BEYOND THE SEAS, EMPEROR OF INDIA:
For GREAT BRITAIN and NORTHERN IBELAND and all parts of the British Empire which are not separate Members of the League of Nations:
The Right Honourable Lord CUSHENDUN, Chancellor of the Duchy of Lancaster, Acting-Secretary of State for Foreign Affairs;
For the DOMINION OF CANADA:
The Right Honourable William Lyon MACKENZIE KING, Prime Minister and Minister for External Affairs;
For the COMMONWEALTH of AUSTRLIA:
The Honourable Alexander John McLACHLAN, Member of the Executive Federal Council;
For the DOMINION OF NEW ZEALAND:
The Honourable Sir Christopher James PARR High Commissioner for New Zealand in Great Britain;
For the UNION OF SOUTH AFRICA:
The Honourable Jacobus Stephanus SMIT, High Commissioner for the Union of South Africa in Great Britain;
For the IRISH FREE STATE:
Mr. William Thomas COSGRAVE, President of the Executive Council;
For INDIA:
The Right Honourable Lord CUSHENDUN, Chancellor of the Duchy of Lancaster, Acting Secretary of State for Foreign Affairs;
HIS MAJESTY THE KING OF ITALY:
Count Gaetano MANZONI, his Ambassador Extraordinary and Plenipotentiary at Paris.
HIS MAJESTY THE EMPEROR OF JAPAN:
Count UCHIDA, Privy Councillor;
THE PRESIDENT OF THE REPUBLIC OF POLAND:
Mr. A. ZALESKI, Minister for Foreign Affairs;
THE PRESIDENT OF THE CZECHOSLOVAK REPUBLIC:
Dr Eduard BENES, Minister for Foreign Affairs;

who, having communicated to one another their full powers found in good and due form have agreed upon the following articles:


ARTICLE I

The High Contracting Parties solemly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.


ARTICLE II

The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.


ARTICLE III

The present Treaty shall be ratified by the High Contracting Parties named in the Preamble in accordance with their respective constitutional requirements, and shall take effect as between them as soon as all their several instruments of ratification shall have been deposited at Washington.

This Treaty shall, when it has come into effect as prescribed in the preceding paragraph, remain open as long as may be necessary for adherence by all the other Powers of the world. Every instrument evidencing the adherence of a Power shall be deposited at Washington and the Treaty shall immediately upon such deposit become effective as; between the Power thus adhering and the other Powers parties hereto.

It shall be the duty of the Government of the United States to furnish each Government named in the Preamble and every Government subsequently adhering to this Treaty with a certified copy of the Treaty and of every instrument of ratification or adherence. It shall also be the duty of the Government of the United States telegraphically to notify such Governments immediately upon the deposit with it of each instrument of ratification or adherence.

IN FAITH WHEREOF the respective Plenipotentiaries have signed this Treaty in the French and English languages both texts having equal force, and hereunto affix their seals.

DONE at Paris, the twenty seventh day of August in the year one thousand nine hundred and twenty-eight.

[SEAL] GUSTAV STRESEMANN
[SEAL] FRANK B KELLOGG
[SEAL] PAUL HYMANS
[SEAL] ARI BRIAND
[SEAL] CUSHENDUN
[SEAL] W. L. MACKENZIE KING
[SEAL] A J MCLACHLAN
[SEAL] C. J. PARR
[SEAL] J S. SMIT
[SEAL] LIAM T.MACCOSGAIR
[SEAL] CUSHENDUN
[SEAL] G. MANZONI
[SEAL] UCHIDA
[SEAL] AUGUST ZALESKI
[SEAL] DR EDWARD BENES

Certified to be a true copy of the signed original deposited with the Government of the United States of America.

FRANK B. KELLOGG
Secretary of State of the United States of America

AND WHEREAS it is stipulated in the said Treaty that it shall take effect as between the High Contracting Parties as soon as all the several instruments of ratification shall have been deposited at Washington;

AND WHEREAS the said Treaty has been duly ratified on the parts of all the High Contracting Parties and their several instruments of ratification have been deposited with the Government of the United States of America, the last on July 24, 1929;

NOW TIIEREFORE, be it known that I, Herbert Hoover, President of the United States of America, have caused the said Treaty to be made public, to the end that the same and every article and clause thereof may be observed and fulfilled with good faith by the United States and the citizens thereof.

IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the United States to be affixed.

DONE at the city of Washington this twenty-fourth day of July in the year of our Lord one thousand nine hundred and twenty-nine, and of the Independence of the United States of America the one hundred and fifty-fourth

HERBERT HOOVER
By the President:
HENRY L STIMSON
Secretary of State

NOTE BY THE DEPARTMENT OF STATE

ADHERING COUNTRIES

When this Treaty became effective on July 24, 1929, the instruments of ratification of all of the signatory powers having been deposited at Washington, the following countries, having deposited instruments of definitive adherence, became parties to it:

Afghanistan Finland Peru
Albania Guatemala Portugal
Austria Hungary Rumania
Bulgaria Iceland Russia
China Latvia Kingdom of the Serbs
Cuba Liberia Croats and Slovenes
Denmark Lithuania Siam
Dominican Republic Netherlands Spain
Egypt Nicaragua Sweden
Estonia Norway Turkey
Ethiopia Panama

Additional adhesions deposited subsequent to July 24, 1929. Persia, July 2, 1929; Greece, August 3, 1929; Honduras, August 6, 1929; Chile, August 12, 1929; Luxemburg August 14, 1929; Danzig, September 11, 1929; Costa Rica, October 1, 1929; Venezuela, October 24, 1929.

Source:
United States Statutes at Large
Vol 46 Part 2 Page 2343

Convention for the Pacific Settlement of International Disputes (Hague 1899)

CONVENTION (I) FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES (HAGUE I) (29 July 1899)

Entry into Force: 4 September 1900

His Majesty the Emperor of Germany, King of Prussia; [etc.]:

Animated by a strong desire to concert for the maintenance of the general peace;

Resolved to second by their best efforts the friendly settlement of international disputes;

Recognizing the solidarity which unites the members of the society of civilized nations;

Desirous of extending the empire of law, and of strengthening the appreciation of international justice;

Convinced that the permanent institution of a Court of Arbitration, accessible to all, in the midst of the independent Powers, will contribute effectively to this result;

Having regard to the advantages attending the general and regular organization of arbitral procedure;

Sharing the opinion of the august Initiator of the International Peace Conference that it is expedient to record in an international Agreement the principles of equity and right on which are based the security of States and the welfare of peoples;

Being desirous of concluding a Convention to this effect, have appointed as their plenipotentiaries, to wit:

[List of plenipotentiaries.]

Who, after communication of their full powers, found in good and due form, have agreed on the following provisions:

TITLE I. ON THE MAINTENANCE OF THE GENERAL PEACE

Article 1

With a view to obviating, as far as possible, recourse to force in the relations between States, the Signatory Powers agree to use their best efforts to insure the pacific settlement of international differences.

TITLE II. ON GOOD OFFICES AND MEDIATION

Article 2

In case of serious disagreement or conflict, before an appeal to arms, the Signatory Powers agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly Powers.

Article 3

Independently of this recourse, the Signatory Powers recommend that one or more Powers, strangers to the dispute, should, on their own initiative, and as far as circumstances may allow, offer their good offices or mediation to the States at variance.

Powers, strangers to the dispute, have the right to offer good offices or mediation, even during the course of hostilities.

The exercise of this right can never be regarded by one or the other of the parties in conflict as an unfriendly act.

Article 4

The part of the mediator consists in reconciling the opposing claims and appeasing the feelings of resentment which may have arisen between the States at variance.

Article 5

The functions of the mediator are at an end when once it is declared, either by one of the parties to the dispute, or by the mediator himself, that the means of reconciliation proposed by him are not accepted.

Article 6

Good offices and mediation, either at the request of the parties at variance, or on the initiative of Powers strangers to the dispute, have exclusively the character of advice and never have binding force.

Article 7

The acceptance of mediation can not, unless there be an agreement to the contrary, have the effect of interrupting, delaying, or hindering mobilization or other measures of preparation for war.

If mediation, occurs after the commencement of hostilities it causes no interruption to the military operations in progress, unless there be an agreement to the contrary.

Article 8

The Signatory Powers are agreed in recommending the application, when circumstances allow, of special mediation in the following form:

In case of a serious difference endangering the peace, the States at variance choose respectively a Power, to whom they intrust the mission of entering into direct communication with the Power chosen on the other side, with the object of preventing the rupture of pacific relations.

For the period of this mandate, the term of which, unless otherwise stipulated, cannot exceed thirty days, the States in conflict cease from all direct communication on the subject of the dispute, which is regarded as referred exclusively to the mediating Powers, who must use their best efforts to settle it.

In case of a definite rupture of pacific relations, these Powers are charged with the joint task of taking advantage of any opportunity to restore peace.

TITLE III. ON INTERNATIONAL COMMISSIONS OF INQUIRY

Article 9

In differences of an international nature involving neither honor nor vital interests, and arising from a difference of opinion on points of fact, the Signatory Powers recommend that the parties, who have not been able to come to an agreement by means of diplomacy, should as far as circumstances allow, institute an International Commission of Inquiry, to facilitate a solution of these differences by elucidating the facts by means of an impartial and conscientious investigation.

Article 10

The International Commissions of Inquiry are constituted by special agreement between the parties in conflict.

The Convention for an inquiry defines the facts to be examined and the extent of the Commissioners’ powers.

It settles the procedure.

On the inquiry both sides must be heard.

The form and the periods to be observed, if not stated in the inquiry Convention, are decided by the Commission itself.

Article 11

The International Commissions of Inquiry are formed, unless otherwise stipulated, in the manner fixed by Article 32 of the present convention.

Article 12

The powers in dispute engage to supply the International Commission of Inquiry, as fully as they may think possible, with all means and facilities necessary to enable it to be completely acquainted with and to accurately understand the facts in question.

Article 13

The International Commission of Inquiry communicates its Report to the conflicting Powers, signed by all the members of the Commission.

Article 14

The report of the International Commission of Inquiry is limited to a statement of facts, and has in no way the character of an Arbitral Award. It leaves the conflicting Powers entire freedom as to the effect to be given to this statement.

TITLE IV. ON INTERNATIONAL ARBITRATION

CHAPTER I. On the System of Arbitration

Article 15

International arbitration has for its object the settlement of differences between States by judges of their own choice, and on the basis of respect for law.

Article 16

In questions of a legal nature, and especially in the interpretation or application of International Conventions, arbitration is recognized by the Signatory Powers as the most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.

Article 17

The Arbitration Convention is concluded for questions already existing or for questions which may arise eventually.

It may embrace any dispute or only disputes of a certain category.

Article 18

The Arbitration Convention implies the engagement to submit loyally to the Award.

Article 19

Independently of general or private Treaties expressly stipulating recourse to arbitration as obligatory on the Signatory Powers, these Powers reserve to themselves the right of concluding, either before the ratification of the present Act or later, new Agreements, general or private, with a view to extending obligatory arbitration to all cases which they may consider it possible to submit to it.

CHAPTER II. On the Permanent Court of Arbitration

Article 20

With the object of facilitating an immediate recourse to arbitration for international differences, which it has not been possible to settle by diplomacy, the Signatory Powers undertake to organize a permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the Rules of Procedure inserted in the present Convention.

Article 21

The Permanent Court shall be competent for all arbitration cases, unless the parties agree to institute a special Tribunal.

Article 22

An International Bureau, established at The Hague, serves as record office for the Court.

This Bureau is the channel for communications relative to the meetings of the Court.

It has the custody of the archives and conducts all the administrative business.

The Signatory Powers undertake to communicate to the International Bureau at The Hague a duly certified copy of any conditions of arbitration arrived at between them, and of any award concerning them delivered by special Tribunals.

They undertake also to communicate to the Bureau the Laws, Regulations, and documents eventually showing the execution of the awards given by the Court.

Article 23

Within the three months following its ratification of the present Act, each Signatory Power shall select four persons at the most, of known competency in questions of international law, of the highest moral reputation, and disposed to accept the duties of Arbitrators. The persons thus selected shall be inscribed, as members of the Court, in a list which shall be notified by the Bureau to all the Signatory Powers.

Any alteration in the list of Arbitrators is brought by the Bureau to the knowledge of the Signatory Powers.

Two or more Powers may agree on the selection in common of one or more Members.

The same person can be selected by different Powers.

The Members of the Court are appointed for a term of six years. Their appointments can be renewed.

In case of the death or retirement of a member of the Court, his place shall be filled in accordance with the method of his appointment.

Article 24

When the Signatory Powers desire to have recourse to the Permanent Court for the settlement of a difference that has arisen between them, the Arbitrators called upon to form the competent Tribunal to decide this difference, must be chosen from the general list of members of the Court.

Failing the direct agreement of the parties on the composition of the Arbitration Tribunal, the following course shall be pursued:

Each party appoints two Arbitrators, and these together choose an Umpire.

If the votes are equal, the choice of the Umpire is intrusted to a third Power, selected by the parties by common accord.

If an agreement is not arrived at on this subject, each party selects a different Power, and the choice of the Umpire is made in concert by the Powers thus selected.

The Tribunal being thus composed, the parties notify to the Bureau their determination to have recourse to the Court and the names of the Arbitrators.

The Tribunal of Arbitration assembles on the date fixed by the parties.

The Members of the Court, in the discharge of their duties and out of their own country, enjoy diplomatic privileges and immunities.

Article 25

The Tribunal of Arbitration has its ordinary seat at The Hague.

Except in cases of necessity, the place of session can only be altered by the Tribunal with the assent of the parties.

Article 26

The International Bureau at The Hague is authorized to place its premises and its staff at the disposal of the Signatory Powers for the operations of any special Board of Arbitration.

The jurisdiction of the Permanent Court, may, within the conditions laid down in the Regulations, be extended to disputes between non-Signatory Powers, or between Signatory Powers and non-Signatory Powers, if the parties are agreed on recourse to this Tribunal.

Article 27

The Signatory Powers consider it their duty, if a serious dispute threatens to break out between two or more of them, to remind these latter that the Permanent Court is open to them.

Consequently, they declare that the fact of reminding the conflicting parties of the provisions of the present Convention, and the advice given to them, in the highest interests of peace, to have recourse to the Permanent Court, can only be regarded as friendly actions.

Article 28

A Permanent Administrative Council, composed of the Diplomatic Representatives of the Signatory Powers accredited to The Hague and of the Netherland Minister for Foreign Affairs, who will act as President, shall be instituted in this town as soon as possible after the ratification of the present Act by at least nine Powers.

This Council will be charged with the establishment and organization of the International Bureau, which will be under its direction and control.

It will notify to the Powers the constitution of the Court and will provide for its installation.

It will settle its Rules of Procedure and all other necessary Regulations.

It will decide all questions of administration which may arise with regard to the operations of the Court.

It will have entire control over the appointment, suspension or dismissal of the officials and employ s of the Bureau.

It will fix the payments and salaries, and control the general expenditure.

At meetings duly summoned the presence of five members is sufficient to render valid the discussions of the Council. The decisions are taken by a majority of votes.

The Council communicates to the Signatory Powers without delay the Regulations adopted by it. It furnishes them with an annual Report on the labours of the Court, the working of the administration, and the expenses.

Article 29

The expenses of the Bureau shall be borne by the Signatory Powers in the proportion fixed for the International Bureau of the Universal Postal Union.

CHAPTER III. On Arbitral Procedure

Article 30

With a view to encourage the development of arbitration, the Signatory Powers have agreed on the following Rules which shall be applicable to arbitral procedure, unless other rules have been agreed on by the parties.

Article 31

The Powers who have recourse to arbitration sign a special Act (compromis), in which the subject of the difference is clearly defined, as well as the extent of the Arbitrators’ powers. This Act implies the undertaking of the parties to submit loyally to the award.

Article 32

The duties of Arbitrator may be conferred on one Arbitrator alone or on several Arbitrators selected by the parties as they please, or chosen by them from the members of the permanent Court of Arbitration established by the present Act.

Failing the constitution of the Tribunal by direct agreement between the parties, the following course shall be pursued:

Each party appoints two arbitrators, and these latter together choose an Umpire.

In case of equal voting, the choice of the Umpire is instructed to a third Power, selected by the parties by common accord.

If no agreement is arrived at on this subject, each party selects a different Power, and the choice of the Umpire is made in concert by the Powers thus selected.

Article 33

When a Sovereign or the Chief of a State is chosen as Arbitrator, the arbitral procedure is settled by him.

Article 34

The Umpire is by right President of the Tribunal.

When the Tribunal does not include an Umpire it appoints its own President.

Article 35

In case of the death, retirement, or disability from any cause of one of the Arbitrators, his place shall be filled in accordance with the method of his appointment.

Article 36

The Tribunal’s place of session is selected by the parties. Failing this selection the Tribunal sits at The Hague. The place thus fixed cannot, except in case of necessity, be changed by the Tribunal without the assent of the parties.

Article 37

The parties have the right to appoint delegates or special agents to attend the Tribunal, for the purpose of serving as intermediaries between them and the Tribunal.

They are further authorized to retain, for the defense of their rights and interests before the Tribunal, counsel or advocates appointed by them for this purpose.

Article 38

The Tribunal decides on the choice of languages to be used by itself, and to be authorized for use before it.

Article 39

As a general rule the arbitral procedure comprises two distinct phases: preliminary examination and discussion.

Preliminary examination consists in the communication by the respective agents to the members of the Tribunal and to the opposite party of all printed or written Acts and of all documents containing the arguments invoked in the case. This communication shall be made in the form and within the periods fixed by the Tribunal in accordance with Article 49.

Discussion consists in the oral development before the Tribunal of the arguments of the parties.

Article 40

Every document produced by one party must be communicated to the other party.

Article 41

The discussions are under the direction of the President.

They are only public if it be so decided by the Tribunal, with the assent of the parties.

They are recorded in the proces-verbaux drawn up by the Secretaries appointed by the President. These proc s-verbaux alone have an authentic character.

Article 42

When the preliminary examination is concluded, the Tribunal has the right to refuse discussion of all fresh Acts or documents which one party may desire to submit to it without the consent of the other party.

Article 43

The Tribunal is free to take into consideration fresh Acts or documents to which its attention may be drawn by the agents or counsel of the parties.

In this case, the Tribunal has the right to require the production of these Acts or documents, but is obliged to make them known to the opposite party.

Article 44

The Tribunal can, besides, require from the agents of the parties the production of all Acts, and can demand all necessary explanations. In case of refusal, the Tribunal takes note of it.

Article 45

The agents and counsel of the parties are authorized to present orally to the Tribunal all the arguments they may think expedient in defence of their case.

Article 46

They have the right to raise objections and points. The decisions of the Tribunal on those points are final, and can not form the subject of any subsequent discussion.

Article 47

The members of the Tribunal have the right to put questions to the agents and counsel of the parties, and to demand explanations from them on doubtful points.

Neither the questions put nor the remarks made by members of the Tribunal during the discussions can be regarded as an expression of opinion by the Tribunal in general, or by its members in particular.

Article 48

The Tribunal is authorized to declare its competence in interpreting the compromis as well as the other Treaties which may be invoked in the case, and in applying the principles of international law.

Article 49

The Tribunal has the right to issue Rules of Procedure for the conduct of the case, to decide the forms and periods within which each party must conclude its arguments, and to arrange all the formalities required for dealing with the evidence.

Article 50

When the agents and counsel of the parties have submitted all explanations and evidence in support of their case, the President pronounces the discussion closed.

Article 51

The deliberations of the Tribunal take place in private. Every decision is taken by a majority of members of the Tribunal.

The refusal of a member to vote must be recorded in the procès-verbal.

Article 52

The award, given by a majority of votes, is accompanied by a statement of reasons. It is drawn up in writing and signed by each member of the Tribunal.

Those members who are in the minority may record their dissent when signing.

Article 53

The award is read out at a public meeting of the Tribunal, the agents and counsel of the parties being present, or duly summoned to attend.

Article 54

The award, duly pronounced and notified to the agents of the parties at variance, puts an end to the dispute definitively and without appeal.

Article 55

The parties can reserve in the compromis the right to demand the revision of the award.

In this case, and unless there be an agreement to the contrary, the demand must be addressed to the Tribunal which pronounced the award. It can only be made on the ground of the discovery of some new fact calculated to exercise a decisive influence on the award, and which, at the time the discussion was closed, was unknown to the Tribunal and to the party demanding the revision.

Proceedings for revision can only be instituted by a decision of the Tribunal expressly recording the existence of the new fact, recognizing in it the character described in the foregoing paragraph, and declaring the demand admissible on this ground.

The compromis fixes the period within which the demand for revision must be made.

Article 56

The award is only binding on the parties who concluded the compromis.

When there is a question of interpreting a Convention to which Powers other than those concerned in the dispute are parties, the latter notify to the former the compromis they have concluded. Each of these Powers has the right to intervene in the case. If one or more of them avail themselves of this right, the interpretation contained in the award is equally binding on them.

Article 57

Each party pays its own expenses and an equal share of those of the Tribunal.

General provisions

Article 58

The present Convention shall be ratified as speedily as possible.

The ratifications shall be deposited at The Hague.

A procès-verbal shall be drawn up recording the receipt of each ratification, and a copy duly certified shall be sent, through the diplomatic channel, to all the Powers who were represented at the International Peace Conference at The Hague.

Article 59

The non-Signatory Powers who were represented at the International Peace Conference can adhere to the present Convention. For this purpose they must make known their adhesion to the Contracting Powers by a written notification addressed to the Netherlands Government, and communicated by it to all the other Contracting Powers.

Article 60

The conditions on which the Powers who were not represented at the International Peace Conference can adhere to the present Convention shall form the subject of a subsequent Agreement among the Contracting Powers.

Article 61

In the event of one of the High Contracting Parties denouncing the present Convention, this denunciation would not take effect until a year after its notification made in writing to the Netherlands Government, and by it communicated at once to all the other Contracting Powers.

This denunciation shall only affect the notifying Power.

In faith of which the Plenipotentiaries have signed the present Convention and affixed their seals to it.

Done at The Hague, the 29th July, 1899, in a single copy, which shall remain in the archives of the Netherlands Government, and copies of it, duly certified, be sent through the diplomatic channel to the Contracting Powers.

[List of Signatories]

Reservations

United States

Under reservation of the declaration made at the plenary sitting of the Conference on the 25th of July, 1899.

Extract from the proces-verbal:

Nothing contained in this convention shall be so construed as to require the United States of America to depart from its traditional policy of not intruding upon, interfering with, or entangling itself in the political questions of policy or internal administration of any foreign state; nor shall anything contained in the said convention be construed to imply a relinquishment by the United States of America of its traditional attitude toward purely American questions.

Roumania

Under the reservations formulated with respect to Articles 16, 17 and 19 of the present Convention (15, 16 and 18 of the project presented by the committee on examination) and recorded in the procès-verbal of the sitting of the Third Commission of July 20, 1899.

Extract from the procès-verbal:

The Royal Government of Roumania, being completely in favor of the principle of facultative arbitration, of which it appreciates the great importance in international relations, nevertheless does not intend to undertake, by Article 15, an engagement to accept arbitration in every case there provided for, and it believes it ought to form express reservations in that respect.

It can not therefore vote for this article, except under that reservation.

The Royal Government of Roumania declares that it can not adhere to Article 16 except with the express reservation, entered in the procès-verbal, that it has decided not to accept, in any case, an international arbitration for disagreements or disputes previous to the conclusion of the present Convention.

The Royal Government of Roumania declares that in adhering to Article 18 of the Convention, it makes no engagement in regard to obligatory arbitration.

Serbia

Under the reservation recorded in the procès-verbal of the Third Commission of July 20, 1899. Extract from the procès-verbal:

In the name of the Royal Government of Servia, we have the honor to declare that our adoption of the principle of good offices and mediation does not imply a recognition of the right of third States to use these means except with the extreme reserve which proceedings of this delicate nature require.

We do not admit good offices and mediation except on condition that their character of purely friendly counsel is maintained fully and completely, and we never could accept them in forms and circumstances such as to impress upon them the character of intervention.

Turkey

Under reservation of the declaration made in the plenary sitting of the Conference of July 25, 1899. Extract from the procès-verbal:

The Turkish delegation, considering that the work of this Conference has been a work of high loyalty and humanity, destined solely to assure general peace by safeguarding the interests and the rights of each one, declares, in the name of its Government, that it adheres to the project just adopted, on the following conditions:

It is formally understood that recourse to good offices and mediation, to commissions of inquiry and arbitration is purely facultative and could not in any case assume an obligatory character or degenerate into intervention; The Imperial Government itself will be the judge of the cases where its interests would permit it to admit these methods without its abstention or refusal to have recourse to them being considered by the signatory States as an unfriendly act.

It goes without saying that in no case could the means in question be applied to questions concerning interior regulation.

The Secret Downing Street Memo

The Secret Downing Street Memo

—– SECRET AND STRICTLY PERSONAL – UK EYES ONLY DAVID MANNING

From: Matthew Rycroft

Date: 23 July 2002 S 195 /02

cc: Defence Secretary, Foreign Secretary, Attorney-General, Sir Richard Wilson, John Scarlett, Francis Richards,

CDS, C, Jonathan Powell, Sally Morgan, Alastair Campbell IRAQ: PRIME MINISTER”S MEETING, 23 JULY

Copy addressees and you met the Prime Minister on 23 July to discuss Iraq.

This record is extremely sensitive. No further copies should be made. It should be shown only to those with a genuine need to know its contents.

John Scarlett summarised the intelligence and latest JIC assessment. Saddam’s regime was tough and based on extreme fear. The only way to overthrow it was likely to be by massive military action. Saddam was worried and expected an attack, probably by air and land, but he was not convinced that it would be immediate or overwhelming. His regime expected their neighbours to line up with the US. Saddam knew that regular army morale was poor. Real support for Saddam among the public was probably narrowly based.

C reported on his recent talks in Washington. There was a perceptible shift in attitude. Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justifi ed by the conjunction of terrorism and WMD. But the intelligence and facts were being fi xed around the policy. The NSC had no patience with the UN route, and no enthusiasm for publishing material on the Iraqi regime’s record. There was little discussion in Washington of the aftermath after military action.

CDS said that military planners would brief CENTCOM on 1-2 August, Rumsfeld on 3 August and Bush on 4 August.

The two broad US options were:

(a) Generated Start. A slow build-up of 250,000 US troops, a short (72 hour) air campaign, then a move up to Baghdad from the south. Lead time of 90 days (30 days preparation plus 60 days deployment to Kuwait).

(b) Running Start. Use forces already in theatre (3 x 6,000), continuous air campaign, initiated by an Iraqi casus belli. Total lead time of 60 days with the air campaign beginning even earlier. A hazardous option.

The US saw the UK (and Kuwait) as essential, with basing in Diego Garcia and Cyprus critical for either option. Turkey and other Gulf states were also important, but less vital. The three main options for UK involvement were:

(i) Basing in Diego Garcia and Cyprus, plus three SF squadrons.

(ii) As above, with maritime and air assets in addition.

What’s worse than an illegal war? A legal one

What’s worse than an illegal war? A legal one

The debate about Iraq should focus on its impact on humanity, not its failure to live up to legal niceties.

November 6, 2006 9:47 AM |?

If I hear another anti-war protester or commentator use the word “illegal” to describe the war in Iraq, I will throttle them.

Not because I think the war was “legal”, or because I supported the war; in fact I was an implacable opponent of invading Iraq since long before the invasion took place. Rather, I despise the cries of “illegality” because implicit in this line of attack is the idea that if the war had been legal – had the UN security council decided in its infinite wisdom that Saddam really was tooled up with WMD and thus deserved a whooping from the west – then the invasion and destruction of Iraq would have been OK, or at least better. In fact, there would have been only one thing worse than the illegal war against Iraq, and that would have been a legal one.

One reason why anti-war activists are so disgruntled with parliament’s rejection this week of an inquiry into the Iraq war is because they wanted to use the opportunity to expose the war’s illegality – again. Chris Coverdale of Action Against War said it is “time to hold an investigation, and part of that investigation should be about uncovering the illegality of the war”. Numerous columnists, celebrity barristers and former Blairite comedians have spent the best part of the last three years uncovering the illegality of the war. For them, that has become the killer argument about Iraq: it was against the law. It’s a bit like turning up to a bloody street brawl in which people were seriously injured and killed, and saying: “Hmmm. I think a law has been broken here.”

The predominance of the illegality charge shows that today’s anti-war sentiment is motivated less by genuine anti-imperialism than by a kind of dinner-party distaste for the consequences of this particular war. It is the Gray’s Inn brigade, some of them former friends of the PM, effectively saying: “Oh dear, this war doesn’t reach our standards of proof. Let’s call it off.” It is a legalistic version of the Vatican’s “just war” test, and about as radical. Anyone seriously concerned with challenging the Iraq war – and more importantly the post-cold war culture of western interventionism that gave rise to it – should insist that this intervention was immoral, not illegal. War is far too important a matter to be left to lawyers and judges.

The focus on illegality is frustrating for three reasons. First, it is based on the fanciful notion that there was a golden age, pre-President Bush, when international law kept the world in order and allowed peace to reign supreme. Bush is often accused of trampling all over 60 years of UN rules and regulations and giving rise to an era of illegal warfare for oil, land, prestige, whatever. This is an idiots’ guide to international relations. It misses out the cold war period from 1945 to 1989, when western powers launched numerous wars and invasions against supposedly equal sovereign states, including in Aden, Korea, Vietnam, Grenada and Panama. And it misses out the post-cold war period, dominated by Clinton and his cling-ons, when there were “humanitarian wars” in Iraq, Somalia, Haiti, Yugoslavia and Sierra Leone. There has never been a time when the niceties of international law or the existence of the UN stopped western powers from carrying out barbaric acts.

Second, some of the very same people bleating about the illegality of the Iraq war were cheerleaders-in-chief of earlier illegal wars. The Guardian, for example, has been at the forefront of denouncing the Iraq war for being illegal; last year it published extracts from Philippe Sands‘ book Lawless World, which slated Bush and Blair for their cowboyish disregard for international law over Iraq. Yet seven years ago, during the Kosovo crisis, the Guardian was at the forefront of demanding an illegal bombing campaign in Yugoslavia. A leader in the paper criticised those who said Clinton and Blair should wait for proper backing from the UN, questioning the notion that the UN is “the only legitimate law-giver”. The UN constitution is a “recipe for inaction”, it said. “Its imprimatur cannot be the sole trigger for international action to right an obvious wrong.”

Or consider Sands himself. When I ran into him at a public meeting last year, he admitted that he didn’t have a problem with the first Gulf war because it was “legal” – it was justified by UN resolution 678 which provided for the expulsion of Iraqi forces from Kuwait. But what about its consequences? In a seven-week period, around 250,000 bombs were dropped, killing, according to a report in the British Medical Journal, tens of thousands of Iraqis (compared with around 150 Allies who died). Around 80% of Iraq’s water, sewage and electrical facilities were damaged or destroyed. The war was followed by internal strife – including the Shia uprising in the south that was viciously suppressed by Saddam – and by UN sanctions that caused further extreme hardship. The war also gave rise to a decade of interventionism in Iraq: to bombing raids over no-fly zones in the north and south, weapons inspections from 1991 to 1998, Blair and Clinton’s bombing campaign of late 1998, and finally the second Gulf war of 2003.

Yet according to the “legal war” theorists, this first invasion of Iraq was OK, because there was a piece of paper that made it “legal”. This exposes the profound moral bankruptcy of legalistic arguments over war. With the backing of the UN, wars that kill and main tens of thousands of people are apparently fine; without the backing of the UN, they apparently are problematic. And sometimes, just for the hell of it, wars that don’t have the backing of the UN (Kosovo) are also fine. Judgements are made not from the basis of what is good for humanity, or from any analysis of what terrible consequences the war will have for those on the receiving end, but rather from the lawyerly approach of making sure that all the boxes are ticked and all the right procedures were followed. Legal niceties are elevated over people’s lives and livelihoods.

Third, the focus on legality/illegality misses out one important point: if anything, a legal war is worse than an illegal one. In implicitly arguing that wars must be legal, that legal is good and illegal is bad, anti-war activists and commentators are effectively calling for even more coherent and ruthless wars of intervention. For the 2003 invasion of Iraq to have been legal it would have required even more international support, more states lined up against the collapsing Ba’athist regime and the beleaguered Iraqi people, more of a consensus that Iraq was a threat to the world and thus needed to be suppressed. A legal war would have been even more devastating for Iraq than the illegal war has been.

Forget questions of legality. They shouldn’t even come into it. Like the humanitarian attacks on Somalia, Yugoslavia and Afghanistan before it, the invasion of Iraq was immoral and destructive – which means that even if, in legal terms, it had been right, it would still have been wrong.

Defence of ‘necessity’

(This ruling appears to establish a defence of necessity to breaches of the Official Secrets Act, although it does not find that Shayler can rely on that defence.)

Case No: 2001/02869/S4

 IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM MR JUSTICE MOSES

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Friday 28 September 2001

B e f o r e :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

THE HON. MR JUSTICE WRIGHT

and

THE HON. MR JUSTICE LEVESON

– – – – – – – – – – – – – – – – – – – – –

?

Regina

Respondent

?

– and –

?
?

David Michael Shayler

Appellant

 

Edward Fitzgerald QC and Keir Starmer (instructed by Liberty & Birnberg Peirce for the Appellant)

Nigel Sweeney QC and Jason Coppel

(instructed by the Crown Prosecution Service for the Respondent)

Michael Tugendhat QC

(instructed by Alastair Brett for the Times Newspapers Ltd)

– – – – – – – – – – – – – – – – – – – – –

JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Lord Woolf CJ:

  1. This is the judgment of the Court, on an appeal by David Michael Shayler from a judgment of Moses J. which was given after a preparatory case management hearing under section 29 of the Criminal Procedure and Investigations Act 1996 (“a section 29 hearing”) in relation to his forth coming trial on three counts charging offences under the Official Secrets Act 1989 (“the OSA”). The first and third counts allege that as a former member of the Security and Intelligence Services (“the Services”) he disclosed documents relating to security or intelligence without lawful authority contrary to section 1(1) of the OSA. The second count alleges that he disclosed information obtained under warrants issued under the Interception of Communications Act 1985 (“the IOCA”).

  2. The appeal raises a number of issues of importance which we would identify as follows:
    1. Whether the offences with which Mr Shayler is charged are offences that are subject to a defence of duress or necessity of circumstances and, if so, whether that defence is capable of applying to the type of situation which Mr Shayler has, so far indicated he relies upon as justifying the disclosure which he made. (The Defences of Duress and Necessity Issue)

    2. Whether those offences are not committed if, or are subject to a defence that:
  1. the disclosure was necessary in the public interest to avert damage to life or limb or serious damage to property or

  2. to expose serious and pervasive illegality or iniquity in the obtaining of warrants and surveillance of suspected persons either at common law or as a result of the coming into force of the Human Rights Act 1998 (“the HRA”). (The Freedom of Expression Issue)

  • The circumstances in which it is appropriate for a judge to make rulings on a Section 29 hearing which will define the issues which can be the subject of evidence at a forthcoming trial. (The Section 29 Hearing Issue)
  • The position of the media when the disclosure, which is relied upon as amounting to offences, is made to the press, as is the case with offences with which Mr Shayler is charged. (The Press Issue)
  • In relation to fourth issue which we have identified we allowed seven national newspapers to intervene in the proceedings and received written and oral submissions which we found extremely helpful from Mr”Tughandat Q. C. on behalf of the press. The press are particularly concerned that if the offences with which Mr Shayler is charged are as absolute as the prosecution contend, this could affect their freedom to obtain information which is of public interest and even could result in their members being charged with being parties to the crimes with which Mr Shayler has been charged.

 

THE BACKGROUND

  • Mr Shayler was a member of the Security Service (“MI5”) from November 1991 to October 1996. At the outset of his service he signed an OSA declaration acknowledging the confidential nature of documents and other information relating to security or intelligence, defence or international relations that might come into his possession as a result of his position; he also signed an acknowledgement that he was under a contractual obligation not to disclose, without authority, any information that came into his possession by virtue of his employment. On leaving the service he signed a further OSA declaration acknowledging that the provisions of the Act continued to apply to him notwithstanding the termination of his appointment, and that the same requirements of confidentiality continued to apply to any information, documents or other articles relating to security or intelligence, defence or international relations which might have come into his possession as a result of his previous employment.
  • By about August 1997 Mr Shayler was in contact with journalists from The Mail on Sunday newspaper. It appears that he handed over to the newspaper a collection of documents that had been removed from the Service. Some 30 different documents were returned by the newspaper to the Treasury Solicitor in March 1998; the bulk of them appeared to relate to security or intelligence matters and were classified at levels ranging from “classified” up to and including “Top Secret”. Certain of the documents included material obtained by or relating to the interception of communications in obedience to warrants issued by the Secretary of State under section 2 of the IOCA.
  • On the 24th August 1997, the Mail on Sunday published an article written by Mr Shayler himself (according to the by-line) and a number of other articles by journalists purporting to be based upon information given by him. For these activities he was paid a substantial sum of money by the Mail. The prosecution contends that the information contained in and referred to in such articles relate to matters of security and intelligence about which the defendant could only have had access by reason of his employment with the service.
  • On the day before these articles were published, the defendant left this country for Holland. On 21st August 2000 Mr Shayler voluntarily returned from France and was arrested on his arrival in this country at Dover. He was cautioned and made no reply. He was not interviewed at any stage, but was taken to London and charged at Charing Cross Police Station that same afternoon and said in reply:

 

“I have been living in Paris for 3 years and I have decided voluntarily to return to Britain to face charges under the Official Secrets Act. I have done this to clear my name and to allow a jury of 12 of my fellow citizens to judge me. I have also returned to challenge the cover-ups and complacency that have followed my disclosures. I admit that as an officer of the security service I was a Crown servant from November 1991 to October 1996. However I do not admit making any disclosures which were contrary to the criminal law. Any disclosures made by me were made in the public and national interests. In my defence I will rely on my right of freedom of expression as guaranteed by the Common Law, the Human Rights Act and Article 10 of the European Convention on Human Rights.”

  • Mr Fitzgerald QC who represents Mr Shayler criticises the suggested failure of the police to interview Mr Shayler. However, it is not clear to us what could have been achieved by following such a course. Mr”Shayler’s explanation and alleged justification for what he had done was set out in extenso in the newspaper articles of which complaint is made. Further, in the circumstances of this case it is at least arguable that no such interview could or should properly have taken place, in the light of paragraph 16.1 of code C of the Codes of Practice. The police, at the material time, plainly had in their possession sufficient evidence to prosecute Mr Shayler and that evidence at least was sufficient for a prosecution to succeed.
  • On the 16th May 2001, in the course of a preparatory hearing under section 29 of the 1996 Act, Moses J, the nominated trial judge ruled:-
    1. Section 1(1) and section 4 of the OSA do not permit a defendant to raise a defence that his disclosure was necessary in the public interest to avert a threat to life or limb or serious damage to property.

    2. The legislation does permit disclosure which may be in the public interest either to those identified in section 12(1) of the OSA or disclosure to others with the authority of those so identified.

    3. A refusal of authority may be challenged in a court exercising the jurisdiction of judicial review.

    4. The imposition of criminal sanctions in support of the restrictions contained in section 1(1) and section 4(1), without the possibility of raising such a defence, are necessary in a democratic society. They are no wider than necessary to achieve the legitimate aim of protecting national security. They are not disproportionate. The reasons advanced by the prosecution convincingly establish relevant and sufficient justification for the restriction.

    5. In those circumstances the provisions of section 1(1) and 4(1) are compatible with Article 10 of the ECHR.

    6. Moses J also ruled that while the offences were subject to the common law defence of duress in its original limited form, the development of the defence to cover necessity of circumstance is excluded by the OSA.
  • Moses J ruled that all that the prosecution is required to prove to obtain a conviction in the present case is:-
    1. That the defendant has been a member of the security and intelligence services;

    2. That he disclosed documents relating to security or intelligence which were in his possession by virtue of his position as a member of those services (Count 1) or information obtained by reason of warrants issued under section 2 of the IOCA (Count 2) or information relating to security or intelligence which was in his possession by virtue of his position as a member of those services (Count 3)
    3. That he made such disclosure without lawful authority.
  • If this ruling stands it appears probable there will be no disputes of facts which a jury will have to resolve before finding Mr Shayler guilty and it is against that ruling that the defendant now appeals.

    THE OSA

  • Central to the issues on this appeal are the terms of the OSA. Moses J, in his detailed and admirably clear and thorough judgment, recognised that the interpretation of those terms was illuminated by the legislative history of the OSA. For a prolonged period of time prior to 1989 there had been sustained criticism of the extremely broad or “catch all” terms of section 2 of the OSA. The OSA left intact section 1 of the 1911 Act which made it an extremely serious offence to perform an act for any purpose prejudicial to the safety or interests of the State, but replaced section 2. There was active debate as to what would be the appropriate replacement. The primary problem was how to achieve the needs of national security without unnecessarily restricting freedom of information.
  • The White Paper which preceded the OSA made it clear that it should be an objective of the proposed replacement to clearly define the circumstances in which the disclosure of information “needs to be criminal”. No one should be in doubt as to the position. In addition, the law should be able to be enforced without an undue burden being placed on the prosecution or defence (paragraph 14 and 26 of the judgment).
  • A distinction was proposed between information disclosed by members and former members of the security services and information disclosed by others. The White Paper indicates the then government’s belief that all disclosure by members of those services is harmful unless the disclosure is authorised. The qualification, as to authorisation, was a critical part of the proposal. Without the qualification the restriction would be draconian. If there was an adequate system of authorisation this means that the extent of the restriction would be more acceptable.
  • There are reasons which justify singling out members and former members of those services. They include the need for the members of those services to be able to communicate freely among themselves, the facts that disclosure by them has an increased credibility because it is made by such members and that disclosure would breach the obligations which they undertake on becoming members of the services, the difficulty for the government in challenging the accuracy of the disclosure, the problems which could arise in prosecuting offences, if the prosecution was required to prove the damaging nature of the disclosure (because it could involve revealing more sensitive information than the offences had revealed) which could make some offences not capable of being prosecuted.
  • By contrast to the position in relation to members and former members of the secret and intelligence services, in the case of other Crown servants and contractors it was accepted there was a need to show that the information alleged to have been disclosed would or was likely to cause damage. It would be sufficient if the information was of a class or description, the disclosure of which was likely to cause damage.
  • The White Paper firmly rejected a possible defence that the disclosure was in the public interest. Among the objections to such a defence was the fact that it would interfere with the clarity of the legislation proposed. During its passage through Parliament an amendment to the bill inserting a public interest defence was defeated.
  • The terms of section 1 of the OSA are important and are as follows:

 

“1(1) a person who is or has been –

(a) a member of the Security and Intelligence Services; or

(b) a person notified that he is subject to the provisions of this sub-section,

is guilty of an offence if without lawful authority he discloses any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services or in the course of his work while the notification is or was in force.

[The criteria for notification include close and regular contact lending to intimate knowledge of the work and structure of the services (28 Jan 1989 HC OR Col 1128-29)]

(2) the reference in sub-section (1) above to disclosing information relating to security or intelligence includes a reference to making any statement that purports to be a disclosure of such information or is intended to be taken by those to whom it is addressed as being such a disclosure.

(3) a person who is or has been a Crown servant or Government contractor, is guilty of an offence if without lawful authority he makes a damaging disclosure of any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as such, but otherwise than is mentioned in sub-section (1) above.

(4) for the purposes of sub-section 3 above, a disclosure is damaging if –

(a) it causes damage to the work of, or any part of, the security and intelligence services or

(b) it is of information or a document or other article which is such that its unauthorised disclosure would be likely to cause such damage or which falls within a class or description of information, documents or articles, the unauthorised disclosure of which would be likely to have that effect.

(5) it is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, documents or articles in question related to security or intelligence or in the case of an offence under sub-section (3), that the disclosure would be damaging with the meaning of that sub-section.

…………

(9) In this section “security or intelligence” means the work of, or in support of, the security and intelligence services or any part of them and references to information relating to security or intelligence, include references to information held or transmitted by those services or by persons in support of, or of any part of, them.”

  • Section 4 has the rubric “Crime and Special Investigation Powers”. It provides:-

 

“4(1) a person who is or has been a Crown servant or Government contractor is guilty of an offence if, without lawful authority, he discloses any information, document or other article to which this section applies and which is or has been in his possession by virtue of his position as such.

(2) This section applies to any information, document or other article –

the disclosure of which –

(i) results in the commission of an offence; or

(ii) facilitates an escape from legal custody; or

(iii) impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders; or

(b) which is such that its unauthorised disclosure would be likely to have any of those effects.

(3) This section also applies to: –

(a) any information obtained by reason of the interception of any communication in obedience to a warrant issued under section 2 of the Interception of Communications Act 1985, any information relating to the obtaining of information by reason of any such interception and any document or other article which is or has been used or held for use in, or has been obtained by reason of, any such interception and

(b) any information obtained by reason of action authorised by a warrant issued under section 3 of the Security Service Act 1989…..

(4) It is a defence for a person charged with an offence under this section in respect of a disclosure falling within sub-section (2)(a) above to prove that at the time of the alleged offence, he did not know, and had no reasonable case to believe, that the disclosure would have any of the effects there mentioned.

(5) It is a defence for a person charged with an offence under this section, in respect of any other disclosure to prove that at the time of the alleged offence, he did not know, and had no reasonable cause to believe, that the information, document or article in question was information or a document or article to which this section applies. ”

  • Section 7 has the rubric “authorised disclosures”. It provides:-

 

“7(1) for the purposes of this Act, a disclosure by –

(a) a Crown servant; or

(b) a person not being a Crown servant or Government contractor in whose case a notification for the purposes of section 1(1) above is in force,

is made with lawful authority if, and only if, it is made in accordance with his official duty.

…………….

(3) For the purposes of this Act, a disclosure made by any other person is made with lawful authority if, and only if, it is made –

(a) to a Crown servant for the purposes of his functions as such; or

(b) in accordance with an official authorisation.

(4) It is a defence for a person charged with an offence under any of the foregoing provisions of this Act to prove that at the time of the alleged offence he believed that he had lawful authority to make the disclosure in question and had no reason or cause to believe otherwise.

(5) In this section “official authorisation” and “official restriction” mean, subject to sub-section (6) below, an authorisation or restriction duly given or imposed by a Crown servant or Government contractor or by or on behalf of prescribed body or a body of a prescribed class.”

  • Section 12 contains the definition of Crown Servant. Section 12(1) provides:-

 

“12(1) in this Act “Crown Servant” means-

(a) a Minister of the Crown;

(b) a person appointed under section 8 of the Northern Ireland Constitution Act 1973….;

(c) any person employed in the Civil Service of the Crown….

(d) any member of a Naval, Military or Air Forces of the Crown…..

(e) any Constable and any other person employed or appointed in or for the purposes of any police force…..

(f) any person who is a member or employee of a prescribed body or a body of a prescribed class and either is prescribed for the purposes of this paragraph or belongs to the prescribed class of members of employees of any such body;

(g) any person who is the holder of a prescribed office or who is an employee of such a holder and either is prescribed for the purposes of this paragraph or belongs to a prescribed class of such employees.”?

  • Section 9 requires a prosecution for the offences with which Mr Shayler is charged to be brought with the consent of the Attorney General. This requirement provides a protection for a defendant since the decision to give or decline his consent is taken by the Attorney General in his role as the guardian of the public interest and not in his role as legal advisor to the government. If the AG gave his consent in a case in which it was perverse to do so this decision, today, would probably be reviewable on an application for judicial review. This is notwithstanding the decision to the contrary by the House of Lords in Gouriet v Union of Post Office Workers [1978] AC 435. (The point was conceded by counsel for Mr”Gouriet) AUTHORISING DISCLOSURE
  • We have drawn attention already to the importance of the fact that it is unauthorised disclosure with which Mr Shayler is charged. Mr Shayler does not accept that there are effective steps which he could have taken by making complaints through official channels to ensure that action would, in turn, be taken to address his concerns or result in his being authorised to make the extensive disclosures which he did to the press. (Being realistic there must be doubt as to whether authority would ever have been forthcoming to make the disclosures which were made to the press.) However, that there were channels for his complaints is not in dispute.
  • Thus, as Moses J observed, a former member of the Services is entitled to make disclosure to a Crown servant for the purposes of his functions as such. Furthermore, as he went on to say:

 

“The Act permits not only disclosure to those identified by section 12(1) but also authorisation by those identified to make disclosure to others (“Official authorisation: see section 7(3)(b) and section 7(5)). Where a former member of the Security Services seeks to make a disclosure to those other than those identified in section 12, he may seek official authorisation which may be given by any of those identified as Crown Servants under section 12. “

  • Moses J went on to consider what relief would be available in the event that authorisation was declined by, for example, a Minister of the Crown. Before analysing that issue, however, it is important to identify to whom such disclosures might be made and, given Mr Shaylers’s stated concerns that those responsible for impropriety or illegality will cover their tracks and mislead any investigator, the status of such persons. Quite apart from Ministers of the Crown, civil servants and police officers (to whom disclosure can be made without authority but who are all thought, whether justifiably or not, to be either involved in impropriety – police officers – or capable of being misled – Ministers and civil servants – there are others who have a legitimate (and statutorily justifiable) interest in these matters whose independence of mind and gullibility is not challenged by Mr Shayler.
  • A provision for supervision and oversight was provided by the IOCA following the decision of the European Court of Human Rights (“ECtHR”) in Malone v UK (1984) 7 EHRR 14 which criticised the lack of a clear statutory framework within which telephone tapping could take place. We return to this legislation below; it is more appropriate however, to analyse the Security Services Act 1989 (“the SSA”) which received Royal Assent on 27th April 1989 two weeks before the OSA (on 11th May 1989). Given that these Acts were proceeding in tandem, the checks and balances in the former must have been apparent when consideration was given to the latter. The SSA places the Security Service on a statutory footing identifying the functions of the service (section 1 of the Act) and providing for the appointment of a Director General responsible for controlling operations (section 2). It then deals in some detail with the grant and review of warrants (as to which Mr”Shayler makes serious allegations). Although later amended by the Intelligence Services Act 1994 (“the ISA”), we set out the original provisions which were as follows:

 

3. -(1) No entry on or interference with property shall be unlawful if it is authorised by a warrant issued by the Secretary of State under this section.

(2) The Secretary of State may on an application made by the Service issue a warrant under this section authorising the taking of such action as is specified in the warrant in respect of any property so specified if the Secretary of State –

(a) thinks it necessary for the action to be taken in order to obtain information which –

(i) is likely to be of substantial value in assisting the Service to discharge any of its functions; and

(ii) cannot reasonably be obtained by other means; and

(b) is satisfied that satisfactory arrangements are in force under section 2(2)(a) above with respect to the disclosure of information obtained by virtue of this section and that the information obtained under the warrant will be subject to those arrangements.

(3) A warrant shall not be issued under this section except –

(a) under the hand of the Secretary of State; or

(b) in an urgent case where the Secretary of State has expressly authorised its issue and a statement of that fact is endorsed on it, under the hand of an official of his department of or above Grade 3.

(4) A warrant shall, unless renewed under subsection (5) below, cease to have effect –

(a) if the warrant was under the hand of the Secretary of State, at the end of the period of six months beginning with the day on which it was issued;

(b) in any other case, at the end of the period ending with the second working day following that day.

(5) If at any time before the day on which a warrant would cease to have effect the Secretary of State considers it necessary for the warrant to continue to have effect for the purpose for which it was issued, he may by an instrument under his hand renew it for a period of six months beginning with that day.

(6) The Secretary of State shall cancel a warrant if he is satisfied that the action authorised by it is no longer necessary

  • As is apparent from its terms the SSA provides very important safeguards both for the public and the Secretary of State designed specifically to provide independent overview. Section 4 of the Act deals with the appointment of the Security Service Commissioner in these terms:-

    “(1) The Prime Minister shall appoint as a Commissioner for the purposes of this Act a person who holds or has held high judicial office.

    . . .

    (3) In addition to his functions under the subsequent provisions of this Act the Commissioner shall keep under review the exercise by the Secretary of State of his powers under section 3 above.

    (4) It shall be the duty of every member of the Service and of every official of the department of the Secretary of State to disclose or give to the Commissioner such documents or information as he may require for the purpose of enabling him to discharge his functions.

    (5) The Commissioner shall make an annual report on the discharge of his functions to the Prime Minister and may at any time report to him on any matter relating to his discharge of those functions.

    (6) The Prime Minister shall lay before each House of Parliament a copy of each annual report made by the Commissioner under subsection (5) above together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (7) below.

    (7) If it appears to the Prime Minister, after consultation with the Commissioner, that the publication of any matter in a report would be prejudicial to the continued discharge of the functions of the Service, the Prime Minister may exclude that matter from the copy of the report as laid before each House of Parliament.

    (8) The Secretary of State may, after consultation with the Commissioner and with the approval of the Treasury as to numbers, provide the Commissioner with such staff as the Secretary of State thinks necessary for the discharge of his functions.”

  • The Act then provided, by section 5, for the appointment of a Tribunal for the purpose of investigating complaints about the Service although it is clear that the remit of the Tribunal was confined to complaints by a person aggrieved by anything which he believes the Service has done in relation to him or to any property of his (paragraph 1 of Schedule 1 to the Act); this section (and the Schedule) also placed additional responsibilities on the Commissioner.
  • Within the definition of “Crown Servant” included in section 12(1) of the OSA (to whom disclosures may lawfully be made for the purposes of their functions as such), there is included the Tribunal set up under section 5 of the SSA as a consequence of the OSA (Prescription) Order 1990, SI 1990 No 200 (as amended by SI 93 No 847). On the face of it, it may appear surprising that the Act did not include the Commissioner within the categories of persons to whom disclosure can be made in his own capacity so that a former member of the Services is expressly authorised to disclose information to the Commissioner. However, the Commissioner has a dedicated secretariat of civil servants to whom disclosure can be made. Given that the primary function of the Commissioner is to keep under review the exercise by the Secretary of State of his powers to issue warrants, any disclosure or ‘whistle blowing’ which criticises the propriety of what is occurring within his remit would obviously concern him.
  • No challenge is made to the integrity or dedication to his duties of the Commissioner. He is required to be a person who holds or has held high judicial office and, with the assistance of whatever information has been disclosed to him, he should be well placed to root out impropriety and illegality, if such there be. Furthermore, even if someone such as Mr”Shayler was sufficiently sceptical to believe that the civil servants within the Commissioner’s secretariat might be prevailed upon not to pass information which they have received on to the Commissioner, this could be addressed since, as the Crown accepts, a decision by a Minister or civil servant to refuse authority to disclose information directly to the Commissioner could be challenged by way of judicial review. As to that prospect, Moses J observed:

 

“Thus, if a refusal of authorisation was unlawful or outwith the statutory purposes for which the power to give official authorisation was conferred, or irrational, the Court could intervene. Since October 2000, a refusal to give authority must itself comply with the Convention. If it was not compatible with Article 10, the Court, on a judicial review, should say so”

  • Mr Fitzgerald QC attacks this conclusion. He points out the HRA was not in force when the disclosure was made. He argues that whatever the position after the enactment of the HRA, at the time of the passing of the Act and up to the late 1990s, where a threat to national security was given as the reason for denying or restricting individual rights the courts were unwilling to intervene by examining the strength of that justification. He argued that national security has been treated as “the exclusive responsibility of the executive” (per Lord Donaldson MR in R v Home Secretary ex parte Cheblak [1991] 1 WLR 890 at 902), it was “par excellence a non-justiciable question” (per Lord Diplock in Council of Civil Service Unions ex parte Minister for the Civil Service [1985] AC 374 at 412).
  • We will return to this argument when dealing with an application for judicial review of a decision to refuse permission to speak to the press but, in this context, the argument misses the point. There could be no question of arguing that a threat to national security justified refusal to allow a former security and intelligence officer to disclose what he asserted was evidence of wrongdoing in connection with the grant of warrants under the SSA to the Commissioner charged under the same legislation with the function of overseeing and reviewing the exercise of by the Secretary of State of the very power which is the subject of complaint. The whole point of the structure of the Act is to provide some measure of transparency (albeit to an independent Commissioner) of the exercise of these powers. To deprive him of information which might the more effectively enable him to exercise his function would be to drive a coach and horses through the Act.
  • The responsibilities of the Commissioner appointed under the SSA cover the issue of warrants under that Act. The IOCA sets up a similar scheme in relation to telephone tapping. The IOCA had its own Commissioner of similar status with the same powers. Furthermore, subsequent to the OSA equivalent provisions have also been put in place in relation to the Services. These are set out in the ISA which deals, among other things, with the functions of GCHQ. It is this Act which amended the SSA by bringing into this legislation the power which enables the Secretary of State to issue a warrant to the Security Service, the Intelligence Service and to GCHQ. In the same form as the other legislation, section 8 creates the post of Commissioner who, similarly, must hold or have held high judicial office. His functions include reviewing the Secretary of State’s powers to issue warrants (other than in relation to the Security Service which remained covered by the SSA) with parallel duties on every member of the Intelligence Service, of the GCHQ and official of the Home Office to make disclosure to the Commissioner for the purpose of his functions. Thus, assuming the necessary authorisation, complaints of the type which Mr Shayler makes about the legality of operations at GCHQ could have been considered by him.
  • The ISA also provides another significant avenue available to those, like Mr Shayler, who wish to make far reaching allegations of what might be described as “institutional” or widespread illegality and abuse of power. Section 10 of the Act creates the Intelligence Security Committee. This consists of Members of the House of Commons and the House of Lords who are not Ministers of the Crown; this remit is to examine the expenditure, administration and policy of the Security Service, the Intelligence Service and GCHQ: (see section 10(1)). Schedule 3 imposes duties of disclosure upon the Director General of the Security Service, the Chief of the Intelligence Service or the Director of GCHQ subject only to statutory restrictions where the Secretary of State has determined that it should not be disclosed (although by paragraph 3(4) the Secretary of State cannot make such determination on the grounds of national security alone) or because it is sensitive information. “Sensitive information” is defined in paragraph 4 of the Schedule and includes information which might lead to identification of sources, about particular operations or which has been provided by another agency. Although that restriction could limit overview of a specific operation, it would not prevent a full investigation of the policy and efficiency of the secret services. In Spycatcher (No. 2) [1990] 1 AC 109, Sir John Donaldson MR, referring to the Security Commission, said (at 188A):

 

“Although technically the function of the commission is to undertake investigations into the efficiency and proper working of the service at the request of the Prime Minister, I find it difficult to conceive of the members failing to take appropriate action if convincing evidence of wrongdoing was submitted to them.”

  • This would be the situation where it was suggested that statutory controls were being overridden. Again, this Committee has a secretariat of civil servants to whom disclosure is authorised; if the relevant material was not passed on, judicial review would be available.
  • Thus, three Commissioners each of whom holds or has held high judicial office (with all the independence of mind which such an appointment brings) together with members of the legislature not involved in government are all available to consider concerns such as Mr Shayler advances. Each has a duty to provide an annual report to the Prime Minister and “may at any time report to him on any matter relating to the discharge of those functions”. The annual report is laid before Parliament: see sections 4(5) and (6) of the SSA; sections 10(5) and (6) of the ISA and sections 8 (7) and (8) of the IOCA.
  • We have not dwelt upon the other gateways set out in section 12(1) of the OSA any one of which would be available to a former security and intelligence officer (in particular, Minister of the Crown, civil servant and police officer). It is not because we dismiss them but rather because Mr”Shayler contends that they can be subverted from their duty. However, taken individually and collectively, they demonstrate that there are further potential mechanisms available to review the conduct of the Security and Intelligence Services.
  • In October 2000, the Regulation Investigatory Powers Act 2000 substituted new provisions in relation to unlawful and authorised interception providing for one Commissioner holding or having held high judicial office (in the place of the two Commissioners who previously supervised the warrants issued in relation to the security services and the intelligence services); there remains a separate Commissioner in relation to telephone intercept warrants. Further, one tribunal takes the place of the three set up under the earlier legislation. Thus, significant checks and balances remain in place and are available to investigate and, to such extent as the holders of those utterly independent offices consider appropriate, make public. Disclosure does not depend on the view (however well intentioned) of a single disenchanted agent.
  • In addition to the statutory overview, there is an additional, non-statutory, channel giving members and former members of the Security Service official authorisation to communicate confidentially outside their line management. This is to the “Staff Counsellor”. He is a high-ranking civil servant who reports to the Prime Minister and the Secretary of State. His role is best described by reference to what the Prime Minister told the House of Commons (HC Debs., 2 November 1987, col. 312):

 

“The House will wish to know that Sir Philip Woodfield KCB, CBE has been appointed as a staff counsellor for the security and intelligence services. He will be available to be consulted by any member of the security and intelligence services who has anxieties relating to the work of his or her service which it has not been possible to allay through the ordinary processes of management-staff relations. He will have access to all relevant documents and to any level of management in each service. He will be able to make recommendations to the head of the service concerned. He will also have access to the Secretary to the Cabinet if he wishes and will have the right to make recommendations to him. He will report as appropriate to the heads of the services and will report not less frequently than once a year to me and to my right hon. Friends the Foreign and Commonwealth Secretary and the Home Secretary as appropriate on his activities and on the working of the system.”

This was, of course, before the passing of the OSA (which established authorisation to communicate with any civil servant). Furthermore, the mechanism was not overlooked when that Act was being debated. During the discussion on the Bill, the then Home Secretary stated in the House of Commons (HC Debs. 22 February 1989, col. 1033):

“The staff counsellor is to provide members and former members of the services with someone who is not a member of the services with whom he or she can discuss concerns and anxieties about their work which it has not been possible to allay through staff channels.”

  • In his skeleton argument, Mr Fitzgerald submitted that the terms of reference of the staff counsellor were “not clear” and that his effectiveness as an alternative avenue for complaint was “highly disputed”. He goes on to say that if permitted Mr Shayler will adduce evidence that he was specifically warned not to raise issues of concern with the Staff Counsellor. The terms of the observations in Hansard could not be clearer: even if it be right that Mr”Shayler was warned not to take advantage of the system, such warnings could hardly bite after he had left the service.
  • In addition, as has already been indicated, there is the role of the courts in relation to judicial review. Moses J is criticised by Mr Fitzgerald and Mr Tugendhat for attaching importance to this. Mr Fitzgerald relies on the fact that there are well known statements demonstrating the reluctance of the courts to review decisions purportedly taken by the executive in the interests of national security. This is undoubtedly correct though in appropriate situations to day the court may be prepared to adopt a more critical approach. However, in general, the matters of which Mr Shayler wished to complain were gross incompetence, unlawfulness, inefficiency and irresponsibility. If those whose responsibility it would be to address these issues failed to do so and ignored Mr Shayler’s complaints in breach of their duty this is a matter which could be the subject of judicial review. This would not require the court to review policy decisions taken purportedly in the interests of national security. The point which Moses”J made, with justification, was that in considering the merits of the sections under which Mr Shayler was charged, there must be taken into account the avenues of redress which the OSA provides, and the fact that the courts are in a position to supervise those whose responsibility it is to police the statutory scheme. The value of the safeguards could differ depending on the circumstances but that there are safeguards cannot be disputed.

    THE DEFENCES OF DURESS AND NECESSITY ISSUE

  • In the case of the great majority of statutory criminal offences the common law defences of necessity and duress are available. Those defences have in recent years been extended by the courts to cover what is usually described as duress or necessity of circumstances. Mr”Fitzgerald submits that the developments which have already taken place should be allowed to continue. They would then be available to his client at his forthcoming trial. The jury at the trial, having examined the evidence, should decide whether he was entitled or at least might have believed he was entitled to take the action that he did. He would be entitled to do so because he may have believed the circumstances made this necessary in the public interest to avert a threat to life or limb or serious damage to property.
  • Moses J decided that duress and necessity were defences in their original form which could be raised by a defendant. However, the extended defences were not available to a defendant as a defence to the charges under sections 1(1) and 4(1) of the OSA 1989. It was Moses J’s opinion that these defences in their extended form were excluded “by the express terms of the OSA”. In his judgment there is “no room for the common law further to augment the opportunities for avoiding the peril by permitting circumstances of disclosure out with the provisions of section 7 and 12”.
  • The approach of Moses J is strongly supported by Mr Nigel Sweeney QC who appears on behalf of the prosecution. We found difficulty with the distinction drawn by Moses J. If the restricted defence is available what justification is there for excluding the defence in its extended form as it has been developed by the courts? Mr Sweeney argued that this case demonstrated why it was necessary to make a distinction. As we accept, if Mr Fitzgerald is correct, this case would be virtually untriable. This is because it would involve conducting an examination of a very substantial part of the activities of MI5 during the period Mr Shayler was a member before the jury. The trial would cease to be a trial of Mr Shayler and would become a trial of MI5. Further, the disclosures which have already been made, if they were to be challenged, would have to be met by further disclosure. On the other hand the position would be very different from the situation where a defence of duress in its original form was raised. This would require no more than an examination of the event which is said to have given rise to the duress or necessity: an example would be whether the defendant made the disclosure because his life was threatened.
  • We understand this concern but we feel whether the concern is of substance depends on the width of the defence as it has developed and it may conceivably develop in the foreseeable future. It is this issue which we now address in the context of Mr Shayler’s attempt to rely on the defence.

    THE LIMITS TO THE DEFENCE OF DURESS AND NECESSITY.

  • Any attempt at a definition of the precise limits of the defence is fraught with difficulty because its development has been closely related to the particular facts of the different cases which have come before the courts. Whilst acknowledging the existence of necessity as a general defence in the criminal law in 1958, Professor Glanville Williams said that the:

 

“peculiarity of necessity as a doctrine of law is the difficulty or impossibility of formulating it with any approach to precision.”

  • Nevertheless, attempts at a broad definition have been made. That given by Sir James Stephen in 1887 was repeated in the leading case of R v Martin (1989) 88 Cr App R 343 by Simon Brown J. It does help to identify the core ingredients of the defence and has managed not only to survive for well over a hundred years but to provide the basis for the extended defence of necessity recently relied upon in R. v Abdul-Hussain and others [1999] Crim LR 570. Three years after the decision in R. v Dudley and Stephensth
    (1884) 14 QBD 273, Stephens described the doctrine, in his Digest of the Criminal Law of England (4 Ed., 1887), in the following terms:

 

“An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained. It does not extend to the case of shipwrecked sailors who kill a boy, one of their number, in order to eat his body.”

  • In Martin (1989) 88 Cr App R 343 at 345, Simon Brown J (as he then was), giving the judgment of the Court of Appeal, restated the general principles in these terms:

 

“First, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure upon the accused’s will from the wrongful threats or violence of another. Equally, however, it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called ‘duress of circumstances.'”

Secondly, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.

Thirdly, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the accused or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result. Secondly, if so, may a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted. If the answer to both those questions was yes, then the jury acquit: the defence of necessity would have been established.

  • This definition was described by Rose VP in Abdul-Hussain as “the clearest and most authoritative guide to the relevant principles and appropriate discretion in relation to both forms of duress.” From both descriptions we extract the following ingredients as being required if the defence of necessity to be relied on:
    1. the act must be done only to prevent an act of greater evil;

    2. the evil must be directed towards the defendant or a person or persons for whom he has responsibility or, we would add, persons for whom the situation makes him responsible;
    3. the act must be reasonable and proportionate to the evil avoided.

    We make the addition to (ii) to cover, by way of example, the situation where the threat is made to set off a bomb unless the defendant performs the unlawful act. The defendant may have not have had any previous connection with those who would be injured by the bomb but the threat itself creates the defendant’s responsibility for those who will be at risk if he does not give way to the threat.

  • We will analyse each of these three limbs further later. Before doing so, however, reference to the restatement of the law in Abdul-Hussain is necessary. The trial judge in Abdul-Hussain had withdrawn the defence of necessity from the jury because he found that there was no “sufficient connection between the danger feared by the defendants and their families on the one hand and the criminal act of hijacking the aircraft on the other”. The Court of Appeal found in a judgment given by Rose VP that:

 

“… although the judge was right to look for a close nexus between the threat and the criminal act, he interpreted the law too strictly in seeking a virtually spontaneous reaction. He should have asked himself, in accordance with Martin, whether there was evidence of such fear operating on the minds of the defendants at the time of the hijacking as to impel them to act as they did and whether, if so, there was evidence that the danger they feared objectively existed and that hijacking was a reasonable and proportionate response to it. Had he done so, it seems to us it that he must have concluded that there was evidence for the jury to consider.”

  • Rose VP added that the relevant authorities on duress and necessity led to 11 propositions. These were that:
    1. Unless Parliament provides otherwise, the defence of duress, whether by threats or from circumstances, is generally available in relation to all substantive crimes, except murder, attempted murder and some forms of treason.

    2. The courts have developed the defence on a case-by-case basis, and its scope remains imprecise.
    3. Imminent peril of death or serious injury to the defendant, or those to whom he has responsibility, is an essential element of both types of duress.
    4. The peril must operate on the mind of the defendant at the time when he commits the otherwise criminal act, so as to overbear his will, and this is essentially a question for the jury.
    5. But the execution of the threat need not be immediately in prospect.
    6. The period of time which elapses between the inception of the peril and the defendant’s act, and between that act and execution of the threat, are relevant but not determinative factors.
    7. All the circumstances of the peril, including the number, identity and status of those creating it, and the opportunities (if any) which exist to avoid it are relevant, initially for the judge, and, in appropriate cases, for the jury, when assessing whether the defendant’s mind was affected as in (iv) above.
    8. As to (vi) and (vii), if Anne Frank had stolen a car to escape from Amsterdam and been charged with theft, the tenets of English law would not have denied her a defence of duress of circumstances, on the ground that she should have waited for the Gestapo’s knock on the door.
    9. There is no reason of principle or authority for distinguishing the two forms of duress in relation to the elements of the defence which we have identified.
    10. The judgment in Martin, at 345 to 346 affords the clearest and most authoritative guide to the relevant principles and appropriate direction in relation to both forms of duress.
    11. Clauses 25 and 26 of the Law Commission’s draft Criminal Law Bill do not represent the present law. Accordingly, reference to those provisions is potentially misleading.
  • The decision in Abdul-Hussain provides useful clarification of the earlier three pronged definition of necessity and elaborates on the operation of the requirement of imminence. It also reflects other decisions which have treated the defence of duress and necessity as being part of the same defence and the extended form of the defence as being nothing more than different labels for essentially the same thing, see e.g. R. v Conway [1988] 3 All ER 1025 at 1029 where it was said :

 

“As the learned editors point out in Smith and Hogan, Criminal Law (6th edn, 1988) p 225, to admit a defence of ‘duress of circumstances’ is a logical consequence of the existence of the defence of duress as that term is ordinarily understood, i.e. ‘do this or else’. This approach does no more than recognise that duress is an example of necessity. Whether ‘duress of circumstances’ is called ‘duress’ or ‘necessity’ does not matter. What is important is that, whatever it is called, it is subject to the same limitations as the ‘do this or else’ species of duress.” (Woolf LJ)

  • However, it has been argued that there are differences between duress of circumstances and necessity. In his thorough-ranging review of the development of the law on necessity in Re. A. (children) (conjoined twins: surgical separation) [2000] 4 All ER 961, Brooke LJ said, at page 1047-1048:

 

“I have described how, in modern times Parliament has sometimes provided ‘necessity’ defences in statutes and how the courts in developing the defence of duress of circumstances have sometimes equated it with the defence of necessity.

They do not, however, cover exactly the same ground. In cases of pure necessity the actor’s mind is not irresistibly overborne by external pressures. The claim is that his or her conduct was not harmful because on a choice of two evils the choice of avoiding the greater harm was justified.”

  • In the 9th Edition of Smith & Hogan on Criminal Law (p.244, 1999), the authors suggest one possible argument in relation to this difference is as follows:

 

“Duress is an excuse, but necessity is a justification. It is quite inappropriate to talk of a surgeon’s will being ‘overborne’ when he decides that it is necessary to carry out a sterilisation or other operation, as in the West Berkshire case ([1989 2AER 545]), on a person who is unable to consent. The surgeon is making a reasoned and reasonable decision. Lord Brandon thought that not only would it be lawful, but that it would be the doctor’s duty to operate. There is no question of excusing ‘human frailty’.”

  • None the less the distinction between duress of circumstances and necessity has, correctly, been by and large ignored or blurred by the courts. Apart from some of the medical cases like West Berkshire the law has tended to treat duress of circumstances and necessity as one and the same. For instance, Archbold says at 17-124:

 

“There has in recent years developed the expression ‘duress of circumstances’. The use of the word ‘duress’ in this contest is misleading. Duress, whether in criminal law or civil law, suggests pressure being brought to bear by one person on another person to persuade that other person to do something which he is unwilling to do. ‘Duress of circumstances’ has nothing to do with one person being told to commit a crime ‘or else’: it relates to a situation where a person is driven to commit a crime by force of circumstances. Accordingly, duress of circumstances is more conveniently dealt with under the heading of ‘necessity’ … Indeed, it may be that duress, strictly so called, should itself be regarded as a form of the defence of necessity: see per Lord Hailsham LC in R. v Howe and others …”

  • Two of the recent authorities on the defence of necessity, Martin and R. v Pommell [1995] 2 Cr App R 607, fail to distinguish between necessity and duress of circumstances and Abdul-Hussain, was described by the Court of Appeal as a duress of circumstances case.

 

  • The authorities speak of imminent or immediate threat of a greater harm occurring as being central to the defence of necessity. This indicates that it is insufficient for the defendant to believe that at some uncertain point in the future harm will occur if he does not act to avoid it; he must reasonably believe he has to act now to avert harm in the imminent future. He must believe the harm he seeks to prevent would otherwise happen, if not immediately, then at least before it could be prevented by his or others legal action. Abdul-Hussain makes clear the harm threatened need not be immediate but it should be imminent. In this sense he has no alternative to yielding to the pressure in order to prevent imminent harm.

 

  • This takes us to the next issue to be dealt with under this head. Does the alleged harm that the defendant seeks to avoid have to be as to a danger to life or serious injury, or can it simply be harm greater than the act done which seeks to avoid it? As the authors of Smith & Hogan say (9th ed p 247):

 

“There are some cases where what was in substance a defence of necessity was allowed without identifying a threat to life or serious injury. In Gillick’s case one of the conditions stated of the lawfulness of the contraceptive advice or treatment given to a girl under sixteen was that, unless she receives it, ‘her physical or mental health or both are likely to suffer’. In F. v West Berkshire Health Authority it was held that it was lawful to carry out a sterilisation operation on a women who lacked the mental capacity to consent because otherwise there would be a grave risk to her of her becoming pregnant which would be a disaster from a psychiatric point of view.”

  • However, any extension of the defence here is slight: protection of the physical and mental well-being of a person from serious harm is still being required. In any event Mr Shayler argues his defence based on the conventional test, ie that his revelations were necessary to prevent death or serious injury to others. He does have a separate argument based on the illegal conduct of MI5. However here the matters relied on by Mr”Shayler, for example illegal monitoring of telephone calls, do not satisfy the requirements of the defence, although this of no practical significance in view of the other allegations he makes.
  • It is also necessary to consider in greater detail the nature of the responsibility and the category of persons to whom the defendant must owe the responsibility for the purposes of the defence. Mr Shayler contends that, as a member of the government secret services, he owed a responsibility to the general public at large. His acts were necessary to protect a yet to be identified group from among the public for whose protection MI5 had responsibilities who would inevitably suffer because of MI5’s incompetence.
  • In Wright [2000] Crim L.R. 510 this issue arose in relation to an appeal against a direction concerning the need for a relationship of sufficient proximity between the defendant and a person he claimed to have responsibility over for the purposes of the defence of duress. The person was the defendant’s boyfriend. Kennedy LJ said, at paragraphs 22-23 of the judgment:

 

“The authorities clearly show that the threat need not be made to the defendant himself or herself. It can be made, as the judge said, to another member of the defendant’s immediate family or, as the judge might have said, if he had followed the Judicial Studies Board specimen direction, ‘to some other person, for whose safety the defendant would reasonably regard herself as responsible.’

On the facts of this case there were good reasons for thinking that the boyfriend would fall within one or other of those formulations.”

  • A difficulty arises in relation to Pommell. In that case, the defendant was allowed to rely on the defence of necessity or duress of circumstances where he was found with a loaded gun under his bed. He claimed he had taken it from a friend who he feared would kill various people. There does not appear to have been any discussion on the appeal about the person to whom the defendant owed responsibility for the purposes of the defence. The decision can possibly be justified by reference to the fact that, although yet unidentified, unless the defendant intervened there could be an identifiable body of the friend’s victims and it is to this body that he owed a duty. This would be within the gloss we have placed earlier upon the requirement of responsibility.
  • So in our judgment the way to reconcile the authorities to which we have referred is to regard the defence as being available when a defendant commits an otherwise criminal act to avoid an imminent peril of danger to life or serious injury to himself or towards somebody for whom he reasonably regards himself as being responsible. That person may not be ascertained and may not be identifiable. However if it is not possible to name the individuals beforehand, it has at least to be possible to describe the individuals by reference to the action which is threatened would be taken which would make them victims absent avoiding action being taken by the defendant. The defendant has responsibility for them because he is placed in a position where he is required to make a choice whether to take or not to take the action which it is said will avoid them being injured. Thus if the threat is to explode a bomb in a building if defendant does not accede to what is demanded the defendant owes responsibility to those who would be in the building if the bomb exploded.
  • The next requirement is proportionality. This has two elements. The act done should be no more than is reasonably necessary to avoid the harm feared and the harm resulting from the act should not be disproportionate to the harm avoided.

    THE EXTENT TO WHICH MR SHAYLER’S DEFENCE COULD FALL WITHIN THE DOCTRINE OF NECESSITY

  • The difference between Mr Shayler’s case and any other case where this defence has been regarded as being available is that Mr Shayler is not in a position to identify any incident which is going to create a danger to the members of the public which his actions were designed to avoid. Instead he is blowing the whistle on the past conduct of individuals members of and MI5 as a whole. He is in effect seeking to have MI5 reformed so that it can play its role of protecting the public properly. He contends he intervened because unless he did so MI5 would continue to operate as he alleges it has in the past and this inevitably would create a danger of the public.
  • Mr Shayler’s justification for his disclosure in our judgment could be the basis for a general public interest defence if such a defence was available but in our judgment it provides no foundation for the invoking the extended defence of duress or necessity. The characteristics of the extended defence may, despite the efforts of the courts to inject greater precision, still be imprecise, but it is inherent in the defence that it has ingredients which Mr Shayler is not in a position to establish. He cannot identify the action by some external agency which is going to create the imminent (if not immediate) threats to the life and limb of members of the general public as a result of the security services alleged abuses and blunders. This is a fundamental ingredient of the defence. Without it, it is impossible to test whether there was sufficient urgency to justify the otherwise unlawful intervention. It is also impossible to apply the proportionality test. Further more, if it is possible to identify the members of the public at risk this will only be by hindsight. This creates difficulty over the requirement of responsibility. Mr Shayler’s justification for what he did lacks the required degree of precision. There is no close nexus between his disclosure and the possible injury to members of the public. Putting it simply there was no necessity or duress as those words are ordinarily understood.
  • To an extent the issue is a matter of degree. At one end of the spectrum is the example of a spy who is kidnapped and told his wife or child will be murdered if he does not disclose top-secret information. At the other end of the spectrum is the disillusioned agent who claims that someone, somewhere, might one day suffer if he does not make such disclosures and that he has responsibility for all such persons, ie the general public as a whole. The first is a situation where almost certainly a defendant would be able to rely on the defence of necessity. The second position is one where a defendant can not possibly rely on the defence. Mr Shayler falls squarely within the second position on the spectrum. On his case as revealed so far there is no possibility of his being entitled to rely on the defence. A study of his description of events, which he has placed before the court and runs to 111 pages, only emphasises the correctness of this view.

    THE APPLICATION OF THE DOCTRINE OF NECESSITY TO THE OFFICIAL SECRETS ACT

  • It has been argued and accepted by Moses J that in any event the doctrine of “extended necessity” does not apply to the OSA for the reasons we have explained earlier. However having examined the ingredients of the extended defence we see no justification for making a distinction between the unextended and extended defence. Nor do we see any need to extend the list of offences to which it does not apply. On our approach to the defence there has to be an incident which gives rise to both forms of defence and we see no insuperable difficulty to the prosecution disproving the defence if it is raised in extended form by a defendant.
  • Parliament has not given any clear indication that the extended defence is excluded and we do not consider we should infer it is excluded. If a defendant might have been acting because of duress or necessity of circumstances (within the parameters the courts have placed on the defence) it would be unjust if he were to be convicted. However as a matter of practice whether the defence in its extended form is or is not excluded is of no significance since we cannot envisage circumstances in which it would apply.
  • We therefore do not consider that it is necessary to do more than follow the approach of the Court of Appeal in Abdul-Hussain and the proposition that:

 

“Unless and until Parliament provides otherwise, the defence of duress, whether by threats or from circumstances, is generally available in relation to all substantive crimes, except murder, attempted murder and some forms of treason (R v Pommell [1995] 2 Cr App R 607 at 615C).”

The defence therefore applies to the OSA.

THE FREEDOM OF EXPRESSION ISSUE

  • Mr Fitzgerald and Mr Tugendhat QC, on behalf of the press, naturally rely on the fact that even prior to the HRA coming into force, freedom of expression was a common law value that is given special protection in this jurisdiction. In general in order to justify restraining the publication of governmental information it is necessary to establish that not only is the information confidential, it is also to show that it is in the public interest that it should not be published. Lord Keith of Kinkel observed in Spycatcher that:

 

“A communication about some aspect of government activity which does no harm to the interests of the nation cannot, even where the original disclosure has been made in breach of confidence, be restrained on the ground of a nebulous equitable duty of confidence serving no useful practical purpose,”

citing A-G v Jonathan Cape Ltd [1976] QB 752 (DC); and Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 32 ALR 485 (High Court of Australia).

  • We accept that such an approach could be said to create a presumption as to the existence of a public interest defence which must be rebutted by the public authority if it wishes to restrain publication on a blanket basis. This general approach at common law as now buttressed by the HRA has been encapsulated by Lord Bingham of Cornhill and Lord Steyn in their speeches in McCartan Turkington Breen v Times Newspapers Ltd [2000] 3 WLR 1670.
  • However, it has always been accepted that members of the security services are in a special situation and Article 10(2) of the Convention recognises the need to treat national security issues differently when it provides that the exercise of the right to freedom of expression may be subject to such conditions and restrictions as are “prescribed by law and are necessary in a democratic society, in the interests of national security…”. In support we refer to AG v Guardian Newspapers Ltd No 2 [1990] AC 109 and the passages from the speeches in that case appropriately cited by Moses J in his judgment in the court below, and the speech of Lord Nicholls of Birkenhead in AG v Jonathan Cape Ltd [2000] 3 WLR 625 at 640 also cited by Moses J (the point which we have to confront being referred to by Lord Nicholls but not decided).
  • We also accept that it is well established in the jurisprudence of the EctHR that the dangers inherent in prior restraint are such that it calls for the most careful scrutiny: see Observer and Guardian v United Kingdom (1991) 14 EHRR 153, paragraph 60 (ECtHR). The ECtHR has repeatedly stated that there must be “a pressing social need” for any restriction on free speech, because it is incumbent on the press to impart information and ideas on matters of public interest; not only does the press have the task of imparting such information and ideas; the public has the right to receive them; were it otherwise, the press would be unable to play its vital role of public watchdog.
  • The HRA provides special protection in section 12 (3) by providing that no relief is to be granted so as to restrain publication unless the court is satisfied that the applicant is likely to establish (i.e. at trial) that publication should not be allowed. Section 12 (4) provides that the Court:

 

“must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic … material (or to conduct connected with such material) to:

  1. the extent to which ?

    1. it is, or would be, in the public interest for the material to be published….

  • We therefore fully acknowledge the importance of the principles on which Mr”Fitzgerald relies. Mr Fitzgerald draws our attention to the features of sections 1 and 4 of the OSA which mean that unless their language is qualified by the courts the sections have a particularly draconian effect. They do not bite on the content of the disclosure but the status of the person making the disclosure. They make no provision for a public interest defence other than that based on duress or necessity. There is no question of the courts having to assess the issue of proportionality. We accept that these are telling points which require careful consideration. We also note that in relation to other crown servants the OSA does not adopt quite the same stifling approach.
  • However, prior to coming into force of the HRA, while the courts when interpreting a statute did not ignore the constitutional principles such as freedom of expression the courts still had to give primacy to the language of the statute and where even freedom of expression was involved the courts did not and could not ignore the intention of the legislation were the language used by the statute was clear. Here the language is clear. The two limbs of justification on which Mr Shayler relies (the need to protect the public from grave risks to life or limb and to disclose the illegality which he alleges has occurred) are inconsistent not only with language of sections 1 and 4 but also with the structure of the OSA. So far as guilt is concerned Mr Shayler’s justification for his conduct has no role to play. If it is to have any role at the trial it would be as to sentence only: in that event, security considerations might require any hearing to be in camera.
  • The position after the coming into force of the HRA is different and as Mr Shayler’s trial is post the Act he is entitled to the protection of freedom of expression provided by Article 10. The issues as we see it boil down to a question as to whether the prosecution can justify the blanket ban provided by sections 1 and 4 applying the well developed jurisprudence as to freedom of expression. It is here, as it seems to us, that the structure of the OSA and other legislation is so important. It makes the blanket ban subject to the protection for the defendant provided by his ability to obtain authorisation for disclosure and to make his voice heard not only by his superiors but by those of undoubted integrity and independence.
  • It is not difficult to understand the reason Parliament adopted the approach that it did. The object of sections 1 and 4 is to deter members of the security forces disclosing secrets which could be damaging to national security. The ability to prosecute after disclosure has occurred is to lock the stable door after the horse has bolted. If damage will be caused by disclosure that damage will be done once disclosure has taken place and the prosecution, even if successful, will not undo the damage. Instead it could give rein to even greater damage. The culture the OSA is designed to support is one where members and former members do not disclose except with prior authority or to persons authorised to receive disclosure. This avoids the grave disadvantage of an individual member having to make a decision, perhaps on partial information, based on his understanding of where the public interest lies.
  • To an extent the issue is one of proportionality. The principle of proportionality requires that, when determining whether a limitation is arbitrary or excessive, the court has to ask itself whether the means used to impair a right or freedom are no more than is necessary to accomplish an important and legitimate objective: see R v Secretary of State for the Home Department, ex parte Daly [2001] 2 WLR 1622, at 1634c-1636c, per Lord Steyn; 1634a-b, per Lord Bingham; (Lord Cooke of Thorndon, Lord Hutton and Lord Scott of Foscote agreeing); applying de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 (PC), at 80, per Lord Clyde.
  • We have already stressed the scale of the interference with freedom of expression which sections 1 and 4 involve. On the other side of the equation has to be placed the fact that what the OSA is designed to protect is national security. Balancing the public interest in this field is notoriously difficult and not ideally suited to a trial by jury. It can be a task which just cannot be performed by a jury trial. It can result in a trial being impossible because it would involve the disclosure of further secret information. The blanket restraint is confined to a relatively small class; the members and former members of the security services who need to be able to communicate to their colleagues, confident that the information will not be disclosed. Members and former members of the security services will inevitably have information for which the press will be prepared to pay handsomely, as happened here. The commercial realities mean it would be preferable that the decision whether to disclose or not to disclose should be in more objective hands. Of course there will be a danger that protection the OSA provides will prove ineffective. However this danger is reduced by the availability of judicial review and the ability of the Attorney General to refuse permission to prosecute.
  • Finally there is the fact that sections 1 and 4 are the attempt of the democratically elected legislature to square the circle. In an area as sensitive as this it does appear to us appropriate to show a degree of deference to the legislators’ decision. We do not consider that the solution which does not involve the individual assessment by a court but by others of the appropriateness of disclosure or the need for action is necessarily inconsistent with Article 10. So far as the members or past members are concerned our conclusion is that the restriction on freedom of expression is justified.

    THE SECTION 29 HEARING ISSUE

  • Mr Fitzgerald questions whether even if Moses J judgment was correct as a matter of law it was appropriate for him to make the rulings that he did. This issue is of general importance in an area where there is as yet little guidance. It is not an issue which was canvassed before Moses J. and it requires detailed consideration of the relevant provisions of the 1996 Act. That Act was intended to achieve for the criminal trial some of the benefits which case management can provide for complex civil litigation. Section 1 paints the landscape with which the provisions are concerned. It provides:

 

“Section 29

(1) Where it appears to a judge of the Crown Court that an indictment reveals a case of such complexity, or a case whose trial is likely to be of such length, that substantial benefits are likely to accrue from a hearing?

(a) before the jury are sworn, and

(b) for any of the purposes mentioned in subsection (2),

he may order that such a hearing (in this Part referred to as a preparatory hearing) shall be held.

(2) The purposes are those of:

(a) identifying issues which are likely to be material to the verdict of the jury;

(b) assisting their comprehension of any such issues;

(c) expediting the proceedings before the jury;

(d) assisting the judge’s management of the trial.

(3) No order may be made under subsection (1) where it appears to a judge of the Crown Court that the evidence on an indictment reveals a case of fraud of such seriousness or complexity as is mentioned in section 7(1) of the Criminal Justice Act 1987 (preparatory hearings in cases of serious or complex fraud).

(4) A judge may make an order under subsection (1):

(a) on the application of the prosecutor,

(b) on the application of the accused or, if there is more than one, any of them,

or

(c) of the judge’s own motion. ”

  • Pausing at section 29 this does appear to be a case where making the order which Moses J made could be said to fall within each of the purposes identified in subsection (2). It is next necessary to refer to section 31 which gives extensive powers to the judge conducting the hearing. It provides:

 

(1) At the preparatory hearing the judge may exercise any of the powers specified in this section.

(2) The judge may adjourn a preparatory hearing from time to time.

(3) He may make a ruling as to?

(a) any question as to the admissibility of evidence;

(b) any other question of law relating to the case.

(4) He may order the prosecutor:

(a) to give the court and the accused or, if there is more than one, each of them a written statement (a case statement) of the matters falling within subsection (5);

(b) to prepare the prosecution evidence and any explanatory material in such a form as appears to the judge to be likely to aid comprehension by the jury and to give it in that form to the court and to the accused or, if there is more than one, to each of them;

(c) to give the court and the accused or, if there is more than one, each of them written notice of documents the truth of the contents of which ought in the prosecutor’s view to be admitted and of any other matters which in his view ought to be agreed;

(d) to make any amendments of any case statement given in pursuance of an order under paragraph (a) that appear to the judge to be appropriate, having regard to objections made by the accused or, if there is more than one, by any of them.

(5) The matters referred to in subsection (4)(a) are:

(a) the principal facts of the case for the prosecution;

(b) the witnesses who will speak to those facts;

(c) any exhibits relevant to those facts;

(d) any proposition of law on which the prosecutor proposes to rely;

(e) the consequences in relation to any of the counts in the indictment that appear to the prosecutor to flow from the matters falling within paragraphs (a) to (d).

(6) Where a judge has ordered the prosecutor to give a case statement and the prosecutor has complied with the order, the judge may order the accused or, if there is more than one, each of them?

(a) to give the court and the prosecutor a written statement setting out in general terms the nature of his defence and indicating the principal matters on which he takes issue with the prosecution;

(b) to give the court and the prosecutor written notice of any objections that he has to the case statement;

c) to give the court and the prosecutor written notice of any point of law

(including any point as to the admissibility of evidence) which he wishes to take, and any authority on which he intends to rely for that purpose.

(7) Where a judge has ordered the prosecutor to give notice under subsection (4)(c) and the prosecutor has complied with the order, the judge may order the accused or, if there is more than one, each of them to give the court and the prosecutor a written notice stating:

a) the extent to which he agrees with the prosecutor as to documents and other matters to which the notice under subsection (4)(c) relates, and b) the reason for any disagreement.

(8) A judge making an order under subsection (6) or (7) shall warn the accused or, if there is more than one, each of them of the possible consequence under section 34 of not complying with it.

(9) If it appears to a judge that reasons given in pursuance of subsection (7) are inadequate, he shall so inform the person giving them and may require him to give further or better reasons.

(10) An order under this section may specify the time within which any specified requirement contained in it is to be complied with.

(11) An order or ruling made under this section shall have effect throughout the trial, unless it appears to the judge on application made to him that the interests of justice require him to vary or discharge it.

It is important to note the implicit power of the judge to vary or discharge the order under section 31(11). A similar power exists in the case of rulings made under section 40 (subsection 4). We refer to the terms of section 40:

Section 40 power to make rulings

(1) A judge may make at a pre-trial hearing a ruling as to:

(a) any question as to the admissibility of evidence;

(b) any other question of law relating to the case concerned.

(2) A ruling may be made under this section:

(a) on an application by a party to the case, or

(b) of the judge’s own motion.

(3) Subject to subsection (4), a ruling made under this section has binding effect from the time it is made until the case against the accused or, if there is more than one, against each of them is disposed of; and the case against an accused is disposed of if :

(a) he is acquitted or convicted, or

(b) the prosecutor decides not to proceed with the case against him.

(4) A judge may discharge or vary (or further vary) a ruling made under this section if it appears to him that it is in the interests of justice to do so; and a judge may act under this subsection:

(a) on an application by a party to the case, or

(b) of the judge’s own motion.

(5) No application may be made under subsection (4)(a) unless there has been a material change of circumstances since the ruling was made or, if a previous application has been made, since the application (or last application) was made.

(6) The judge referred to in subsection (4) need not be the judge who made the ruling or, if it has been varied, the judge (or any of the judges) who varied it.

(7) For the purposes of this section the prosecutor is any person acting as prosecutor, whether an individual or a body.

  • These provisions encourage a judge to make rulings where there are good case management reasons for doing so. It is important the courts use the powers when they will achieve the statutory objectives. This includes making a ruling that a defence is not available to a defendant when this can be done as a matter of law. Among the advantages of doing so is the opportunity which it gives for the ruling to be challenged as in this case on appeal. There is little case law on the operation of these provisions but they are based on the similar provisions for serious or complex fraud cases under the Criminal Justice Act 1987.
  • According to Re Gunawardena, 91 Cr. App. R. 55, CA, decided under the 1987 Act, the purpose of the parallel provisions was limited to those in section 7(1)(a) to (d) of the 1987 Act, which is the same as section 29(2)(a) to (d) of the CPIA. Similarly the provisions in section 31(3)(a) and (b) of the CPIA (parallel to section 9(3) of the 1987 Act) and section 40 (1)(a) and (b) should be treated as being subordinate to the above provisions. The position is almost certainly the same under both Acts.
  • However, while there is no reason to artificially limit the powers of the judge at a preliminary hearing, the judge must always have at the forefront of his mind that he must not interfere with a defendants’ fundamental right to be tried by a jury. In particular the judge must not trespass on the jury’s role as the judges of fact. The judge must also bear in mind that until the defence has called its evidence it may be inappropriate to make a ruling. But in this case to clarify the law was highly desirable. The consequence will be to limit the evidence the jury would have to consider. It will help counsel as to the issues on which they should ask questions. It will avoid the need to consider issues of public interest immunity which could otherwise complicate the trial. A judge should during a hearing not allow irrelevant questions and by making rulings clarifying the law before the hearing the trial will be able to conducted more smoothly.
  • Of course if the circumstances change the judge must be prepared to use his powers to vary a ruling. However, these powers do not mean that a judge may make a ruling without having sufficient material on which to make it. A judge cannot stop a defendant pursuing a defence merely because it is weak. Before he makes a ruling withdrawing a defence he has to be satisfied on the material available and likely to be available it cannot succeed.
  • In this case Moses J was certainly entitled to make the rulings he did. On the defence of duress and necessity we give different reasons from the judge. We conclude the defence of necessity duress could be available. The defence is one which has to be raised by a defendant before it becomes the duty of the prosecution to rebut it. The defence has placed material before the court indicating the nature of the matters which Mr”Shayler relies on and they do not meet the requirements of the defence for the reasons we have explained. As to his arguments based on freedom of expression and Article 10 we have explained why they are not relevant. If it should happen, which is most unlikely, that the circumstances change then the judge will have to deal with this at the trial. We consider this case is a very good example of the value of section 29 hearings.
  • This approach is compatible with a defendant’s right to a fair trial at common law and in accordance with Article 6 of the European Convention because it guarantees that a defendant will be able to rely on a defence if and when he provides any evidence upon which he could do so, and because judicial discretion is preserved, blanket bans on defences from the outset of a trial are avoided.
  • In this particular case, the fact that so much material has been placed before the court explaining why Mr Shayler considers he was justified to do what he did means that it is not difficult (as it might otherwise be) to make a general ruling about the defences he is able to rely on. The material makes it clear he was not as a matter law acting under duress or necessity of circumstances. As a matter of law sections 1 and 4 are not subject to a public interest defence. We say this not withstanding the comments of Lord Browne Wilkinson in Barrett v Enfield [1993] 3AER 193 at p. 197. While this case involves developing areas of the law the developments would not benefit Mr”Shayler.

    THE PRESS

  • Mr Sweeney correctly pointed out that in relation to the appeal the press do not have the status of being victims for the purposes of the HRA. If he was intending to suggest this meant that the court should not be prepared to give weight to their submissions we do not agree. The courts have a discretion as to who should entitled to be heard and on an issue concerning freedom of expression the press has an interest to protect and may be able provide the court with an insight as to what is at stake which cannot be provided by the parties. In this case the court found the submissions of Mr Tugendhat of assistance and they resulted in no time being wasted.
  • Mr Sweeney also, understandably, was concerned at the broad approach the press adopted in their argument; taking examples of different situations from those that feature in this case. This in fact is not objectionable since we are considering the interpretation of the OSA after the implementation of the HRA. If we had come to the conclusion that sections 1 and 4 were in conflict with Article 10 adopting a traditional approach to interpretation of the sections then it would have been necessary for the court to fulfil its duty under section 3 of the HRA. Although it would have impaired the effectiveness of the section, if it was necessary to do this, we have no reason to think this is a case in which the court would be required to grant a declaration of incompatibility. Adopting a suitably muscular approach to interpretation as required by section 3, relatively simply, we could have made the sections compatible. The interpretation we then adopted, if correct, would not only apply to this case it would apply generally and it is because of this that the approach of the press was correct.
  • It is nonetheless important to recognise the difference between the position of the press and Mr Shayler. Subject to what we say hereafter the legislation does not make it an offence for the Press to receive information where it is disclosed in breach of sections 1 and 4. If the press does so then the usual remedy of the State is to bring proceedings for an injunction to prevent publication. In deciding whether to grant an injunction the court will consider a wide range of factors which are irrelevant on the question of Mr Shayler’s guilt. All the cases referred to by counsel involving the exercise of discretion to grant injunctions would become directly relevant instead of being as here background to the issues with which we are directly concerned. (See here Lord Templeman’s speech in Lord Advocate v The Scotsman [1990] 1 AC 812.)
  • Section 5 of the OSA would then also be applicable and the press could in the appropriate circumstances be prosecuted under that section but that section does not create a blanket ban and it provides protection for the press which is not available to Mr Shayler. In fact we suspect, even then, it would only be in an exceptional case that the Attorney General would authorise a prosecution.
  • Section 5 is not easy to interpret and we do not seek to say anything about its interpretation. However, Mr Tugendhat was concerned in case a journalist could instead of being prosecuted under section 5 be charged with inciting an offence under section 1. He says allegations as to this have been made in this case. These may have arisen because the Daily Mail paid Mr Shayler ?37,000 for his revelations which they published. As Professor Birkinshaw makes clear in his admirable work, Freedom of Information, this area is a mine field and we feel unable to say more in relation to the submissions that we have heard than:

 

(1) It would have to be an extreme case on the facts for a prosecution for incitement to be justified having regard to the structure of the OSA which attaches such importance to the status of the individual charged.

(2) Judicial review could have a significant role to play in this area and if for example, before disclosure the matter was already fully in the public domain it is difficult to identify what would be the rational justification for not granting authorisation for disclosure or authorising a prosecution.

  • We dismiss this appeal.

 


Assassination is OK if conflict is defined as war

Experts: Yemen strike not assassination

By PAMELA HESS
UPI Pentagon Correspondent

WASHINGTON, Nov. 8, 2002 (UPI) — The Hellfire missile strike launched by a CIA-operated drone that killed a top al Qaida militant and five others in a car in Yemen on Sunday may not have violated the U.S. ban on assassinations, but the Bush administration’s new rules on America’s right to self-defense in the uncertain battlefield of the war on terrorism need to be sharply defined, according to former intelligence officials and experts.

The strike, launched from a Predator unmanned aerial vehicle, killed Qaed Salim Sinan al-Harethi, said to be al Qaida’s top man in Yemen and one of the architects of the October 2000 suicide bombing of the USS Cole that killed 17 sailors.

Al-Harethi is not the first al Qaida member the United States has personally targeted, but he is the first the government has killed outside the borders of Afghanistan.

The White House, CIA and Pentagon have been very close-lipped about the operation, other than Deputy Defense Secretary Paul Wolfowitz’ acknowledgement of its success to CNN in an interview this week.

But Sunday’s incident does not seem to meet the "assassination test," according to experts.

"Based on what has been reported in the press, this is viewed as a military action against enemy combatants which would take it out of a realm of assassination," said Suzanne Spalding, a former deputy general counsel with the CIA and now an official with the American Bar Association. "It does seem to me this was characterized as a military operation in the war on terrorism — not a rhetorical war — and that these are enemy combatants. You shoot to kill enemy combatants."

An executive order from President Ford, subsequently upheld and strengthened by both Jimmy Carter and Ronald Reagan, barred the United States from engaging in assassination. Ford’s order was a reaction to multiple failed and embarrassing attempts by the CIA to have foreign leaders assassinated, including several attempts on Cuba’s Fidel Castro.

Steve Aftergood, with the Federation of American Scientists’ Project on Government Secrecy, agrees the strike was not a violation of the executive order.

"I thought that the Yemen strike was necessary and appropriate. These are people after all who declared war on us and defending ourselves is the right thing to do. The bottom line is these are bad people that need to be stopped, so the mission counts as a success," Aftergood told United Press International.

What makes the killing of an individual by the U.S. government rise to the level of assassination is that it is undertaken for political purposes during peace time, according to Duke University law professor Scott Silliman. The United States, he points out, is most emphatically at war.

Moreover, President Bush signed a finding allowing "lethal covert action" to be taken against al Qaida leader Osama bin Laden and his operatives last fall. The finding instructs the CIA to attack bin Laden’s communications and security apparatus, as well as the entire infrastructure of the al Qaida network. For the first time since the ban on assassination went into effect, a lethal covert action finding specifically authorizes the targeting of an individual.

It came a few weeks after Congress passed a joint resolution authorizing the president to use "all necessary and appropriate force" against "persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." Al Qaida, individual members and collectively, then, is firmly in the cross hairs.

But the incident nevertheless causes concern for Aftergood, Spalding and others who worry that the Bush administration’s rules for this sort of covert action are intentionally vague and set a dangerous precedent for both the United States and other countries to follow.

"It is difficult to distinguish what we did in Yemen from what Israel has done with the Palestinians with targeted killings," Silliman told UPI.

As recently as July, White House spokesman Ari Fleischer criticized Israel for launching a "heavy handed" attack that killed Salah Shehadeh, the top commander of Hamas’ military wing, Izzadine el-Qassa, in Gaza.

The attack by an F-16 with a single 2,000-lb bomb destroyed four buildings killing 14 others, including nine children, and wounding as many as 100, Palestinian authorities said at the time.

Fleischer’s comment — "this heavy-handed action does not contribute to peace" — may have been a statement on the size of the bomb dropped and not the intent of the attack — to kill a known terrorist.

Sunday’s operation may erode the influence the United States has over Israel and other states that have been dealing with internal and external terrorist threats to their territory. Broadly interpreted, it could also be applied by other states to justify their own preemptive attacks on perceived adversaries.

"We are basically opening up and crafting a new tool and tactic which is not for (the United States) alone to use," Silliman said. "The United States is not the only one that can do this. We may be putting our own leadership at risk."

Sweden’s Foreign Minister Anna Lindh warned of just such an outcome in comments this week about the Yemen operation. "Even terrorists must be treated according to international law. Otherwise, any country can start executing those whom they consider terrorists," she said.

The Bush administration, in its blanket refusal to discuss the details of the operation, has not answered why al-Hareth and the others were killed rather than tracked and arrested for interrogation.

Silliman says the new power that the United States has now wielded outside the confines of the Afghan battlefield has a simple justification: In the global war on terrorism the United States has a legitimate right to defend itself. But where can it take action and under what circumstances?

Defense Secretary Donald Rumsfeld has been very clear about the military’s plan to take the war to the terrorists, wherever they are. He has said al Qaida has a presence in at least 60 nations, including the United States.

"If we do this outside the traditional combat area of Afghanistan, in Yemen — could we not do it in Germany, Ottawa, or even in Cincinnati?" Silliman asked. "If you move outside a combat area to a non-combat area, then wherever al Qaida is becomes a legitimate target. The question is, do we (the United States) become the arbiter on whether a country is capable of dealing with the terrorists on their own?"

Aftergood shares the concern.

"It is a problematic precedent for the future because we really don’t know what its implications are, we need greater clarity about the rules of the road not only for ourselves but for other countries. Others should not think or imagine we are willing to invade their territory and strike within their borders unannounced. That’s not what we do, not what we stand for. National sovereignty is a value we uphold and respect," Aftergood said. "The fundamental value at stake here is the rule of law, including the laws of war."

What is needed is a more precise definition by the Bush administration of this new strategy.

"From a policy perspective we need to hear something that gives us a sense it is not arbitrary and completely open ended. That will make it a lot easier to accept the kinds of things that need to be done," Spalding told UPI.

"This is an area in which the application of laws of armed conflict is very difficult. We have a lot of experience employing laws of armed conflict — what constitutes a military target, the appropriate use of force. This is anything but a traditional war. Applying those laws to specific targets in this situation is very tricky," warned Spalding. "We’re sort of making it up as we go along because we are applying laws written for a very different context from … today’s environment."

          

Powers and Practice of the UNSC to Authorize Use of Force by

Is the Authorization Authorized ? Powers and Practice of the UN Security Council to Authorize the Use of Force by ‘Coalitions of the Able and Willing’

by Niels Blokker

EJIL (2000), Vol. 11 No. 3, 541-568


Abstract: 

This article examines the question whether it is within the Security Council’s powers to adopt
resolutions which authorize Member States to use force. This question has gained importance
since the end of the Cold War as such authorization resolutions have become the primary
instrument through which the Security Council has acted in situations where the use of
military force is considered necessary. The provisional conclusion is drawn that it is an
implied power of the Council to adopt such resolutions. However, it is also argued that both
the Charter system and principles of delegation reject carte blanche delegations and favour
authorizations which respect the authority and responsibility of the Security Council in the
United Nations collective security system. Before reaching final conclusions, the author
examines the views of the Member States and the practice of the Security Council. Member
States find the model of authorization resolutions as such generally acceptable, although
some states have expressed a concern for greater UN control. In its practice, the Council has
to a considerable extent responded to this concern. Three specific aspects are discussed: the
mandate and the duration of authorized operations, and reporting requirements. There is a
clear tendency towards greater control by the Security Council in relation to all three of
these aspects.

Canadian government interpretation of

The war on Afghanistan 2001: Comments in the Canadian parliament

Source: Hansard, 30 October 2001

Right Hon. Jean Chr?tien (Prime Minister, Lib.): Mr. Speaker, the member should know that the security council (sic) passed a resolution on September 12 saying that the Americans had the right to retaliate because they had been attacked by the terrorists. Since then, the U.S. has been acting within the terms of the UN resolution.

As for consulting the coalition, we are speaking with the Americans. We have officials in the United States who are speaking daily with top American officials. I know there are representatives of Britain, Australia and probably France and Germany. There are daily consultations with the allies.

[…]

[T]he Minister of Foreign Affairs is currently touring several Middle Eastern countries, where he is trying to convince everyone that we must first fight terrorism and then try to find diplomatic solutions to all the conflicts. I think this is the Canadian position now.

Is there an immediate need for a debate in the UN General Assembly? I do not know whether this is necessary right now because the security council (sic) hs already passed a resolution authorizing the activities of the American troops and of members of the coalition.