The Case for Tyrannicide: It Is Not an International Crime to Possess Nuclear Weapons. We Need New Laws to Deal with Despots Who Violate Human Rights. (Features)
Robertson, Geoffrey, New Statesman (1996)
In the 1960s, the White House coined the term "peace offensive" as a euphemism for its war on Vietnam. Today, by "regime change" in Iraq, it means killing Saddam Hussein. The case against him does not hinge upon his breaches of UN resolutions, which have been condoned by most members of the Security Council. His malignancy is to be inferred from the brutality of his dictatorship over his own people. There is a precise word for what parliament will soon debate, and it is not regime change. It is tyrannicide.
The last time that parliament formally approved tyrannicide--indeed, defined it as a duty rather than an option--was in 1649, when the rump parliament had Charles I executed as a tyrant for murdering his own people, committing war crimes and behaving like an absolute dictator. Milton (who served Cromwell in the office of Alastair Campbell) argued that killing a ruler who turns on his own subjects is moral, as well as poetic, justice. Although this cut little ice with the public (who preferred the sentimental royalist spin about Charles the holy martyr), the puritan justification for tyrannicide remains. Who now criticises von Stauffen-berg (other than for ineptitude) in his attempt to blow up Hitler, or castigates the Romanians who killed Ceausescu?
But is this just "cruel necessity"--as Cromwell apocryphally muttered over the king in his coffin? Necessity may know no law, but it is the nature of ordered society to find some legal basis for lethal acts, however utilitarian the purpose they serve. Just as we look to domestic courts to find justifications rather than excuses for doctors who turn off life-support machines, so internationally we require precedent or authority for the use of force against an independent and sovereign state.
In Kosovo, despite the absence of any Security Council mandate, Nato discovered in international law a "right of humanitarian intervention". To justify its attack on Afghanistan in response to 11 September, Washington invoked the right of self-defence, expressly preserved in Article 51 of the UN Charter. If the Security Council does not authorise an attack on Iraq (that is, if Russia or China casts a "superpower veto"), the Bush administration will rely on the so-called right of "anticipatory self-defence"--summed up by the phrase "pre-emptive strike".
But the problem with legitimacy, as opposed to necessity, is that it requires reference to some principle, or at least to a precedent. The right of humanitarian intervention, for example, can be traced back to British naval operations to end the slave trade. Self-defence, however, has a classic definition, formulated by the US secretary of state Daniel Webster after the British claimed it in justification of their attacks in 1837 on Americans who harboured Canadian rebels. It legitimates only an immediate response to an actual act of aggression; it certainly does not sanction "anticipatory or pre-emptive" use of force. In the example commonly given to law students, the US would in 1941 have been entitled to sink the Japanese fleet the moment it was ordered to set sail for Pearl Harbor, but not to strike it "pre-emptively" out of suspicion that the order might be given.
So the UN Charter's right of self-defence does not legitimate any US attack on Iraq unsanctioned by the Security Council, unless and until Saddam actually acquires nuclear weapons and makes preparations to use them against the US. There is no fact likely to emerge from Tony Blair's dossier to show that Iraq is planning to attack the US or the UK: it will show Saddam to be evil but not suicidal.
These limitations on the right of self-defence may seem irksome, but they have the benefit of disallowing an entirely subjective judgement by the self-defender bent on launching a pre-emptive strike before there is anything to pre-empt. It was Goering's argument at Nuremberg that Germany alone could decide when to go to war in self-defence, and it was rejected by the court: "whether action taken under the claim of self-defence was in fact aggressive or defensive must ultimately be subject to investigation and adjudication if the international law is to be enforced". …