Apologies to anyone waiting for the Scottish post, but this came up on Twitter last night and I wanted to write it up properly.
Peter Jukes in the Indie:
Jeremy Corbyn was wrong to even suggest on Tuesday that Tony Blair could face war crimes trials for [Iraq] … Many argue, quite cogently, the Iraq invasion was “illegitimate” without a second UN Security Council vote. But to my knowledge this is not the same as being “illegal” in accordance with any war crimes convention in international law. (Kofi Annan indicated in 2004 it “it was not in conformity with the UN charter” but that is a very different thing.)
There’s a certain amount of double-talk going on here. Here’s Corbyn suggesting that Blair could face war crimes trials:
Asked on BBC Newsnight whether Blair should stand trial on war crimes charges, Corbyn said: “If he has committed a war crime, yes. Everybody who has committed a war crime should be.” … He said: “It was an illegal war. I am confident about that. Indeed Kofi Annan confirmed it was an illegal war and therefore [Tony Blair] has to explain to that. Is he going to be tried for it? I don’t know. Could he be tried for it? Possibly.”
And here’s Annan on illegality and non-conformity with the UN Charter:
In an interview … he was asked outright if the war was illegal. He replied: “Yes, if you wish.” He then added unequivocally: “I have indicated it was not in conformity with the UN charter. From our point of view and from the charter point of view it was illegal.”
It seems to me that the distinction between “illegitimacy” and illegality is a bit of a red herring, as is the insistence on talking in terms of “war crimes”. The jurisdiction of the International Criminal Court formally covers both jus in bello (under the heading of crimes against humanity) and jus ad bellum (the crime of aggression); however, the crime of aggression remains undefined and consequently can’t as yet be referred to the Court. Blair could conceivably be referred to the ICC for illegalities in the conduct of the Iraq invasion, although this seems highly unlikely for several reasons. What can’t happen, pending amendments to the Rome Charter, is an international prosecution for initiating the invasion. And this is what’s chiefly at issue when we’re talking about Corbyn’s position on Iraq: the legality of the invasion in international law is the question on which Corbyn is clearly and unequivocally on the other side of the argument from Tony Blair, Peter Goldsmith, Burnham, Cooper, Kendall et al.
In discussion on Twitter sparked by the Jukes article, Carl Gardner cited this 2010 post in which he came down on the side of the invasion being legal. It’s detailed, closely-argued and well worth reading (as Carl’s posts generally are), although I don’t agree with its conclusions (as I generally don’t). For the purposes of this post I want to focus on a minor point made in the course of Carl’s conclusion:
I agree with Lord Goldsmith’s advice of 7 March 2003, first that the safer course would be to seek a second resolution authorising force; the UK did that, of course, and failed; and second, that the “revival” argument, that further material breach by Iraq would revive the authorisation of force in UNSCR 678, is a reasonable one. I’d go further, in fact: I agree with what Lord Goldsmith seems to have concluded a few days later – that the “revival” theory is the better view, to be preferred to the alternative put forward by Elizabeth Wilmshurst, that resolution 1441 clearly required a further decision by the Security Council. She told the Chilcot Inquiry that the wording of resolution 1441 had this effect … that was what made the position different from 1998 [when the US and Britain bombed Iraq], when as I’ve said she had agreed with the revival theory (though she now thinks it was “strained” even then).
In any event, the fact that Elizabeth Wilmshurst’s change of approach since 1998 turns on a detailed construction of 1441 shows the question is not an easy or obviously one-sided one. The fact that two views are possible is enough, in my view, to reject wild, overblown and rhetorical claims that Tony Blair is a “war criminal”, for example.
Carl’s 2010 argument – the minor one at the end of this quote – and Peter Jukes’s argument about what Corbyn should and shouldn’t have said have something in common. As we can see, Corbyn didn’t claim that Blair should be seen as a war criminal – he didn’t take any position on that question at all. What he didn’t do, however, was rule it out: he included Blair among those people who could, in some imaginable real-world circumstances, be prosecuted for war crimes. I don’t think it’s over-reading to say that this – the non-dismissal or failure to exclude – is the ‘suggestion’ which Jukes and others find objectionable. Conversely, Carl in 2010 pointed out – correctly – that there is more than one view on the relationship between UN 678 and UN 1441, and between the pair of them and the Iraq invasion itself; he then argued that this plurality of views was sufficient to rule out the possibility of claiming that Blair was a war criminal. But surely this doesn’t follow: if there are multiple ways in which reasonable people can read the materials that determine whether the invasion was legal, presumably one of those views may be that it was illegal and should be prosecuted as soon as amendments to the Rome Charter make it possible. (At which point claims that Blair was a war criminal would be improper, but only because the matter was sub judice.)
What Carl’s post expresses here, it seems to me, is something similar to Jukes’s objection to Corbyn. The argument (on this point) is not that labelling Blair as a war criminal is incorrect, but that this view should not be held by anyone: this position should not be denied but excluded, dismissed, ruled out of consideration. And it should be excluded because it’s “wild” and “overblown”; it doesn’t have a place on the spectrum of valid and reasonably-held beliefs. Even Corbyn’s mild and measured comments, for Jukes, were a dangerous diversion from how politics should be conducted. It’s as if the expression of some beliefs is, in itself, hostile to all other beliefs – as if some beliefs could not be expressed within a debate but only by heckling.
What’s going on here? Let’s take a quick detour into the philosophy of language. (Don’t ask why I’ve been reading philosophy of language.)
In ordinary usage we tend to think that there’s no difference between making a statement S and making the quotative meta-statement “S is true”: the same information is conveyed by the two statements “There is snow on the ground.” and “If somebody says ‘there’s snow on the ground,’ they’re telling the truth.” But this leads us into some difficulties. Say that your friend Jo asks about your mutual friend Harry’s dog: is it well? You’d heard that Harry was getting a dog but don’t know anything about it; you want to change the subject, so you give what seems the most acceptable answer: “It’s fine, Harry’s dog is fine.” Later you discover that Harry had planned to get a dog but thought better of it and got a cat instead. So there is no dog.
Question: were you telling a lie when you asserted, on no evidence, that Harry’s dog was in good health? Logically speaking, you weren’t. Your assertion wasn’t true, but neither was it false: “Harry’s dog” doesn’t refer to anything in the world, so statements about it can’t be either true or false (since they can never be either proved true or falsified). (Compare “Noah’s Ark was painted in bright colours”.) “Harry’s dog is fine” is neither true nor false. But what if you’d thought Jo looked suspicious and added “I’m telling you the truth, Harry’s dog is fine”? That statement (or meta-statement) would have been false, because the original statement isn’t true (neither is it false). On the third hand, if instead of asserting truth you’d denied falsehood – “I’m not lying, Harry’s dog is fine” – that statement would have been true, for much the same reason.
We seem to have a paradox: we started from the position that (1) “Harry’s dog is fine”, (2) “It’s true that Harry’s dog is fine” and (3) “It’s not false that Harry’s dog is fine” were logically identical, but we’ve identified conditions in which (3) is true and (2) false while – or because – (1) is neither true nor false.
One way to resolve it would be to look a bit more deeply into our ordinary-language understanding of the meanings involved. Why, after all, would anyone actually say “I’m telling you the truth, Harry’s dog is fine”? Perhaps, rather than being a meta-statement referring to the statement following it, the first clause is doing a separate job, asserting the trustworthiness of the speaker and the speech-act rather than the truthfulness of the statement: perhaps what this speaker is actually saying is “you can trust me to be telling the truth when I make the following statement”. In this case the paradox dissolves: under conditions where (1) is neither true nor false, the distinct statement (2) is false (because it’s asserting that the speaker is stating the truth when asserting (1)), while (3) is, rather sneakily and pedantically, true (because it’s asserting that the speaker isn’t stating a falsehood when asserting (1) – as indeed (s)he isn’t & can’t be, given that Harry’s dog doesn’t exist).
What’s all this got to do with Corbyn, Jukes, Gardner and Iraq? Carl’s post is a good starting-point. On the main point at issue – the legality of the invasion – he made four key assertions: that
- whether or not the invasion was legal depends on the text of two UN resolutions, the relationship between them and how these things are interpreted;
- there is room for different and conflicting interpretations;
- he personally endorsed an interpretation which concluded that the invasion was legal (“I agree with what Lord Goldsmith said was the legal justification for war”)
- “The invasion of Iraq was lawful”
To put it more schematically:
- There is an agreed set of facts on the basis of which statements can be made
- Both statement S and its negation not-S can be argued on the basis of those facts
- On the basis of those facts, I believe that S is preferable to not-S
I’m not criticising 2010-Carl for making the leap from the meta-statement at 3 to the statement at 4 – quite the reverse: I think this is an exemplary piece of unpacking. It’s reminiscent of what we do when we read a Supreme Court judgment: we see an uncontentious stock of facts and precedents construed in two or three different ways and an authoritative reading established partly by consensus and partly by majority vote. Once the decision is made, after multiple more or less plausible readings have been set out, the state of the law is what the SC majority concluded it to be: we proceed from “S and not-S are both arguable” to “S is preferred” and thence directly to S. And similarly with Carl’s assessment of the rival arguments about Iraq, his statement of his preferred alternative and his factual assertion that the invasion was lawful.
The question then is whether this is a game that only lawyers can play – or whether everyone, having made a factual assertion, is capable of clambering back down the ladder from 4 to 3 and back to 2. I think there’s a danger of a lack of charity in the assumption that we hold our beliefs lightly and on the basis of a preferred interpretation of agreed facts, whereas our opponents have positions that they maintain to the exclusion of all others. There’s also, perhaps, a danger of vanity in the assumption that we hold all our beliefs lightly. Related to this last point, I wonder if ‘unpacking’ is the right metaphor. If “S is true” is a different statement from S, presumably the same can be said of “I believe that S is true on grounds which I am prepared to justify logically”. However we arrive at our beliefs, “belief that S” once established is a distinct mental attitude – not an epiphenomenal aspect of a more fundamental “preference for the justificatory grounds for a belief that S“.
So I can’t agree with Carl: to say that Blair is a war criminal is not, in and of itself, to say that no other readings of the facts are possible or to deny that one has reached that opinion by selecting a preferred interpretation of the facts. A fortiori, Peter Jukes’s indignation at Corbyn’s mere failure to rebut the suggestion that Blair might be considered a war criminal is misplaced. (For what it’s worth, I think Corbyn handled the questioning rather well. If the Rome Charter is revised, Blair could be prosecuted by the ICC for waging aggressive war. I doubt we’ll ever see it, and if we do I would expect him to be found not guilty. But ‘possibly’ is about right.)
I think all this relates to a broader point about the Corbyn campaign. Let’s say that the spectrum of acceptable debate runs from position -3 (left of centre) to +3 (right of centre); if I assert position -5, those who hold +1 or +2 (or even -1 or -2) are less likely to argue with me than they are to dismiss my position and demand that I dismiss it too. And if, meanwhile, the centre has been shifting – so that today’s -5s are the -1s or +1s of twenty or thirty years ago – a calm and reasoned statement of -5 is liable to evoke a lot of suppressed demand in some quarters and rattle a lot of cages elsewhere. I think it’s largely because Corbyn’s campaign puts back into circulation positions that have simply been excluded – rather than being controverted or even challenged – that it’s causing such consternation on the Right and showing such power to mobilise on the Left.