Taking Empire Seriously:

Empire’s Law, Peoples’ Law and

the World Tribunal on Iraq

Jayan Nayar*

 

We come together under the auspices of the World Tribunal on Iraq (WTI) confronted by the implications of the ascendancy of Empire. Although the essential fact of brute force – the invasion, occupation and domination of Iraq by the US-led ‘Coalition’ – provides the immediate impetus for the imagination and being of the WTI, more is at play in the objective realities of our time. Brute force alone is unsurprising to any student of international relations – the violations of law in a world of unequal power are, after all, a commonplace. That there is a claim to the normalisation of the right to unilateral use of force through the use of normative languages is that which is thought to transform the present time into a time arguably of Empire’s rule through Empire’s Law. This we confront.

We know that power exercised through violence is seldom without rejection and resistance. The emergence of the WTI is proof of this, following as it did the unprecedented popular opposition to the invasion, and continued occupation of Iraq. Across our world, actions continue ceaselessly to support the resistance within Iraq and to denounce the claims of Empire. The WTI represents in this respect a significant peoples’ action.

But what exactly are we here to do? What exactly is the historic role to which the WTI may aspire? How might the WTI signify a challenge to Empire?

These are brave words we often speak in our gatherings; bold claims we are apt to make. Yet, the challenging of Empire is more easily sloganeered than it is effected. What is it of Empire that we challenge through the WTI? How is it that we make such a challenge? Is it that by our declarations of ‘Illegality’ that we impinge upon Empire’s desires? Is it by a holding of a ‘peoples’ tribunal’ that we challenge Empire’s claim to ‘Law? Are we here to reclaim the humanity of law? Or does the WTI signify a different potential?

The WTI is a presence within the oppositional reality of Empire’s Law and peoples’ resistance. I believe the WTI holds the potential of portending a new Peoples’ Law movement. This, however, requires that we not merely undertake the ‘tribunal’ task without pause for critical reflection of what this means within the current context of Empire. Doing an ‘event’ is not enough, however grand a doing, however much ‘alternative’ media coverage this generates, however numerous an audience we attract. Events come and go, footnotes to narratives of ‘action’. We must aspire for more. As we pursue the imagination of a peoples’ World Tribunal on Iraq, we bear the responsibility of confronting the realities of Empire and the implications of challenging Empire. We must make the WTI relevant to our time.

The aim of this essay is to locate the WTI in Empire. I consider some of the implications of recognizing the realities of Empire, and Empire’s Law. While theorisations of ideal situations enabling the restrictions of Empire through re-rationalisations of international law continue to be important, I suggest a Peoples’ Law perspective; a counter-theorisation of law that seeks to be informed by real human struggles against Empire’s violence. Finally, I consider the potential of the WTI in light of the competing implications of Empire’s Law and Peoples’ Law.

 

1. Empire’s Law: A Constitutional Perspective on Empire’s Rule

Although we freely speak the word ‘Empire’, how might we envision it in terms that are relevant to Law?

Empire’s Law, I suggest, is more than the sum of individual legal assertions which have come to gain prominence. It is instead an assertion of a constitutional superiority backed by the power of violence. Empire’s Law over-rides all other legal orders, in fact. It is Leviathan projected globally. And with it a new constitutional order is established.  This new constellation asserts the following::

1. Within the Empire, all laws are not equal.

2. There is no international law deriving from the UN Charter that can be interpreted as applying to prevent the US (as Empire’s politico-military center) from undertaking unilateral action to maintain or establish the global political conditions necessary for the proper functioning of Empire’s activities.

3. All international laws supporting Empire’s fundamental interest in the unrestrained movement of capital across territorial boundaries shall be inviolable, and shall be enforced through international enforcement agencies.

4. All laws at the national or subnational levels that aim to preserve and protect the political, economic and cultural needs of Empire shall be inviolable, and must be respected through effective enforcement by the relevant authorities.

5. All laws that  seek to preserve national or subnational self-determination in matters pertaining to the conduct of Empire’s activities are repugnant to the idea of Empire’s Law and shall thereby be non-enforceable by reason of un-law-fulness, and shall instead be subject to harmonisation to facilitate the smooth progress of Empire’s activities.

If these are indeed the fundamentals of Empire’s Law, what implications arise for a possible resistance- imagination of law within the context of Empire? Let us begin with a brief review of that which happened and that which did not.

The invasion of Iraq on 20 March 2002 by the US-dominated ‘Coalition’ happened. It was followed by an unrepentant occupation leading subsequently to an ongoing process of manipulative political engineering in the name of political transition to Iraqi ‘democracy’. Not by happenstance; not without design. Invasion, occupation and political domination of Iraq (field-tested first in Afghanistan) followed from a new and explicit claim to power, asserted as both right and inevitable,[i] the ‘unipolar moment’ to be seized with the confidence of a preordained destiny,[ii] its manifestation the right to domination, ‘full spectrum’ no less, in a new ‘American Century’ that is to be established with the assistance of whatever ‘coalitions of the willing’ that might be mustered.[iii] We were thereby introduced to the new language of unilaterally decided upon ‘pre-emptive’/’preventive’ strikes, a language designed to demand recognition of a new order(ing) of international political realities. The gauntlet was thrown down, the challenge stark in its simplicity: Domination is fact. Domination is right. Who dares dream otherwise?

Might otherwise have been possible? What might have happened but did not?

It did not happen that we were delivered a United Nations system which censured and suspended US and UK (and cohorts) membership for their contemptuous disregard for the global will against the invasion of Iraq. Why?

It did not happen that an anti-Empire international community of states arose to reject the presumptuousness of Empire by withdrawing collectively from relevant global institutions that stand dominated by the US and UK – the WTO, the World Bank, the IMF, thereby insisting upon a post-imperial world order. Why?

It did not happen that the global community of law-workers/thinkers brought about a paralysis of the discredited legal order by an indefinite ‘vigil for law’ by lawyers outraged by the US-UK disdain for law, through a worldwide strike action to uphold the sanctity of their ideals and demonstrate the power of the legal community to stall the machinations of power against law. Why?

Because we are confronted not with ‘violations’ of ‘humane law’ but with the assertion of Empire’s Rule through Empire’s Law?

None of the above (im)possibilities were to be. Neither the institutions of inter-state relations nor the institutions of ‘Law’ were able or willing to take real action against the violent satisfaction of imperial desire. Instead of action based upon a determination of legality, the realism of a hierarchically ordered political system has prevailed;  a ‘transition’ to ‘interim’ Iraqi self-government was granted solemn UN endorsement; purple-fingered Iraqi elections, UN sanction; a ‘liberated’ Iraq on the road to ‘democracy’, UN promotion, and along with it a collective forgetting of multilateral and legal failure to halt Empire. All but in the violated consciousness of the people of Iraq resisting Empire, and the confined circles of agonised antiwar activists and ‘Leftist’ international lawyers, the transition from the hitherto asserted world order of ‘sovereign equality’ to the new order of US ‘full spectrum dominance’ has come to pass smoothly without undue rupture of international affairs. A new world order of imperial whim and impunity, it would seem, has come into being. Constitutional Principles (1) and (2) of Empire’s Law as outlined above apparently apply.

But more than the assertion of the New American Century defines a transition to Empire; see Principles (3), (4) and (5). If the war on Iraq serves to ‘remake the world’ over and above being yet another example of belligerent disregard of law by the powerful, then it is because military domination serves to introduce and consolidate other features of contemporary world ordering that deviate from the foundational assumptions of the UN conception of international relations and international law. These may be summarised as follows:

·        There is the ascendancy of power (whether of action or persuasion) of private and multilateral actors, particularly those whose motivation is the ever-expanding accumulation of capital and profit capable of overriding the capacity of states to protect traditionally conceived ‘national interest’ concerns;[iv] TNCs,[v] business-related ‘civil society’ actors such as the International Chamber of Commerce,[vi] International Financial Institutions such as the World Bank and the IMF, and institutionalised regimes of governance as exemplified by the WTO, all increasingly wield practical vetoes over potentially offensive state action.[vii] This ascendancy provides the material force which seeks to reorient sovereignty and thereby the regulatory functions of the state, and its various multilateral manifestations, away from social-ism to corporatism.

·        The reorganisation of the global ‘public space’ of economic governance to serve the ‘private’ domains of corporate lust is accompanied and facilitated by a greater centralisation of ‘police’ power with respect to political governance. We see this clearly in the recent upsurge in the assertions of the growth industry that is the ‘anti-terror’/‘security’ discourses within national political entities wherein recalcitrant domestic populations are soundly ‘managed’ with the instrumentalities of ‘law and order’. Finally, we have common ground between North and South, East and West! The effect of these tendencies towards the monopolisation of violence has been the twofold manifestation of greater political suppression of the social majorities and the outbreak of isolated and dramatic expressions of rejection and counter-violence. ‘Security’ has become the code for (legalised) political violence.[viii] The ‘War on Terror’, as espoused by those who seek the monopoly to the ‘right to violence’, brings to vision all of these upon one screen.

Explicit in the new order of Empire’s Constitution is the transformation of the idea and reality of the state, and of ‘sovereignty’ as traditionally understood – a recognition that the sovereignty-idea is perceptibly losing its state-centric quality (if such was indeed ever possessed) thereby re-forming the nature of the state as a political actor vis-à-vis its regulatory capacity, authority and orientation.[ix] From an historical perspective what this implies is familiar; a re-emergence of the old colonial structure of governance which is formed by centres of power in the cores and ‘local chieftaincies’ in the peripheries, the former determining matters of general policy through various levels of elite contestations, the latter handling the day-to-day exigencies of ‘management’ and ‘control’ in order to implement desires so formulated. Empire, it would seem, entrenches colonial governance upon the global space.

Under the rule of Empire’s Law, in stark contrast to the world as envisaged by the UN conception of international law’s order, the state increasingly serves not to mediate some collective ‘national interest’ at the international level, but to mediate the transnational interest at the national level.[x] We thus see a reconfigured transnational society where solidarities derive from human situated-ness within the matrix of Empire’s order, according to the hierarchy of materialities and psychologies of livelihoods.[xi] And accordingly, Empire’s Law may be seen as serving the following functions:

·        Law as Emancipation: It facilitates and enables the citizens of Empire within the 1^st Worlds Empire’s 1^st Worlds, with its unbounded social space of leadership, entrepreneurial competition, social mobility and the consumerism of ‘global cultures’, promised to all but is inhabited by the few who are the transnational elites for whom Empire provides order, for whom Empire is order.

·        Law as Regulation: It regulates and disciplines the subjects of Empire within the 2^nd Worlds, with its located social space of labour, service, work-space competition, social rootedness and pop-cunsumerism, inhabited by aspirants, always dreaming of the possibility of graduation, constantly living the threat of relegation, caught between the promise and the danger of human possibilities within Empire.

·        Law as Exclusion: It excludes the outcasts of Empire within the 3^rd Worlds, with its ruptured social space of flight, capture and subsistence competition, lying in the underground of ‘civil-ised society’, its inhabitants the disposables of the ordering of civilization, either incapable of being, or unwilling to be, the servile service-providers that would enable their survival in the 2^nd World.

The description above is not intended to suggest that all law as formulated serves as such within the context and conditions of Empire. What it does aim to set out is a perspective on the social function of Empire’s Law as the new ordering of Empire is effected. Viewing ‘Law’ within Empire from a perspective that recognises the conflicts inherent in the confrontation between the 3 worlds outlined above suggests that, notwithstanding the promise of law, and suggestions for its democratisation,[xii] law exists within a reality of imperial influence and control, not as a social institution subject to rational negotiations for either a national or universal good.[xiii]  Humane law, as it might be described, stands subjected, therefore, to the constitutional primacy of Empire’s Law. [xiv] And thus, we witness law’s abdication of justice. Issa Shivji is persuasive, I believe:

‘First, I want to suggest that the Empire’s lawlessness in the sense described here can no longer be explained in terms of the divergence between the ideal and the real. It is no more a question of double standards or not matching deeds with words. Rather, the very ‘word’ is wanting. The Law and its premises, the liberal values underlying law, Law’s Empire itself needs to be interrogated and overturned. In other words, fascism is not an aberration, it is the logical consequence of imperialism, and when imperialism runs amok, you get “Iraq”.

 

Second, whatever the achievements of Western bourgeois civilisation,

these are now exhausted. We are on the threshold of reconstructing a new civilisation, a more universal, a more humane, civilisation. And that cannot be done without defeating and destroying imperialism on all fronts. On the legal front, we have to re-think law and its future rather than simply talk in terms of re-making it. I do not know how, but I do know how not. We cannot continue to accept the value-system underlying the Anglo-American law as unproblematic. The very premises of law need to be interrogated. We cannot continue accepting the Western civilisation's claim to universality. Its universalization owes much to the argument of force rather than the force of argument. We have to rediscover other civilisations and weave together a new tapestry borrowing from different cultures and peoples.’[xv]

 

Taking American Empire seriously, I believe, means that we need to revitalize an imagination of decolonisation relevant for the present time. It is not institutions – the state system, the idea of ‘Law etc. - that is of primary importance in this respect; they are instruments whose worth for the cause of struggle against Empire remain subject to critical examination. Instead, it is the dream of freedom from oppression and violation which serves as the guiding point for thought-action that ought to be remembered as we set out on new visions, or more accurately, as we register and dignify struggles for other possibilities. One of these is Peoples’ Law.

 

2. A Theorisation for Resistance: A Peoples’ Law Perspective

A Peoples’ Law perspective of resistance against Empire’s rule would begin with a series of demystifications necessary as a first act of repudiation:

·        Despite attempts to claim the opposite, there exists no inviolable right, on the part of the powerful, to govern, rule, order, the weak.

·        Regardless of the ideological claims being advanced, there exists no unifying or unified civilisational consensus on the natural-ness of a corporate-dominated, militaristic imperialism as comprising the common values, truths, visions of human futures that prescribe a universal course for humanity’s social evolution.

·        Notwithstanding attempts to convince otherwise, there exists no pre-ordained rationale for, eternal truth of, inevitability, regarding, forms of socially constructed orders that form the institutions of governance, including the form of ‘Law’.

How, therefore, might we theorise law for resistance to Empire?

Decolonisation histories, as histories of struggle against the claimed ‘truths’ of Empire, have seldom flowed from law’s generosity. Everything, the world so to speak, is up for grabs. And it is precisely this grabbing that is being pursued by the powerful, the dominant, in their appropriation of the idea of ‘Law’, and through it, the mechanisms of governance for Empire. Given the materialities and the ideological thrusts of current world orderings as discussed above, a perspective of peoples’ law, therefore, would recognise the right of peoples to speak the words and act the actions of law from a position of opposition to the violence of Empire. The words of the Mazarain in Punjab, Pakistan serve as an illustration and inspiration:

‘The myths by which your laws persist fail to sustain in the South. … [W]e are excluded, we are omitted, we are disposable, yet cannot be a sacrifice. To talk then of state law is to talk of the monopolisation of violences and to lay claim to lie making. But it’s a deeper movement that inheres the greatest violence. The colonisation of the ideas of law.’

‘What we seek to imagine is a peoples law. The Mazarain seek to establish their own truths concerning their living and dying. Why does this truth not carry the normative weight ascribed to law? It is no less law than the states truths concerning living and dying. And so the Peoples of the Damaan seek to tell their own truths. Both truths uncover the violences of dominant law. The forms of this uncovering are vast and varied – public hearings, poetic recitals, music, testimony and story-telling. They all lay out the peoples’ law. And all are experiments with the truth.’[xvi]

The reclaiming of the idea of law, therefore, entails a thorough reorientation of the ideas underpinning political practice as we have been made to understand them. In reality, such reorientations are daily happenings within communities of the violated who have asserted their rebellious consciousness; for them the living of peoples’ law is less a matter of theoretical preference than one of survival.

The idea of Peoples’ Law, as an opposition to Empire’s Law, is something more than an articulation of protest. It is not preoccupied with urging Empire to reform. It is not intended to seek an invitation to speak with the powers who seek to implement Empire’s projects. Rather, it is about creating a different authority for judgement and action altogether, based on other ‘Word-Worlds’ of law that are authored by peoples in action:[xvii]

·        Peoples’ Law as a process of reclaiming Histories and Futures. An underlying thrust of the conceptual and practical implication of peoples’ law is the reclaiming of violated peoples’ rights to ‘truth’, manifestly in the reappropriation from dominant sites and processes the narratives of histories of suffering and futures of emancipation.[xviii] An elaboration of peoples’ law, therefore, impinges on the very basis upon which ideological constructions of the ‘world’ are maintained and promoted. Much of what can be seen as peoples’ action in this regard has been to re-tell history as a means of reclaiming the power of memory and judgement of violation.

·        Peoples’ Law as a manifestation of reclaiming Political Action. Running through the entire range of violated peoples’ political initiatives in opposition to ‘power’ is a fundamental reclaiming of the ‘right to act’.[xix] Peoples’ Law therefore brings to the fore ideas of political action which counterposes the mainstream conceptualisation of democratic politics with the radical reappropriation by peoples’ groups to initiate what might be termed ‘grassroots democratic action’ of and for law.[xx]

Clearly, the rejection of the ‘certainties’ of mainstream political-legal imaginations by the growing movement of peoples’ movements represent mounting resistance to the powers of domination that have ruled thus far. The manifestation of these movements also represents a reclaiming of peoples’ power to narrate their own stories and project their own visions. The functionaries of Empire would have it be that the ‘wretched of the earth’ are gripped by the manifolds of misfortune which are to be eradicated through Empire’s visionary action – ‘terror’, ‘underdevelopment’, and the like. The peoples subjected to the ‘globalisation’ projects of Empire tell a different history. Suffering is less the condition of misfortune; they resoundingly condemn it as a consequence of violations.[xxi] From this original stance of resistance and rejection of Empire’s ‘authority’ arises the possibility of a more thorough reorientation of the very idea of law as a means and manifestation of a reclaimed peoples’ authority-sovereignty.

I submit the following principles as describing the foundations of a peoples’ oriented perspective of law in opposition to Empire’s Law:

·        Judgement: the right/power of peoples to judge the ‘realities’ that are inflicted upon them and to name as violation that which is otherwise proclaimed as normalcy by the dominant powers.

·        Authorship: the right/power of peoples to author/create ‘law’ and to define the structures and nature of social relationships conducive to a life of security and welfare.

·        Control: the right/power of peoples to control (and not merely ‘participate’ in) the processes of decision-making and judgement in relation to the matters which affect the daily life-conditions of their communities.

·        Action: the right/power of peoples to effect the ‘implementation’ of their alternative visions of social relationships in ways that reinforce and celebrate the diversity of humanity, for humanity.

Empire’s Law and Peoples’ Law posit two conflicting movements, one real and in motion, the other nascent, for the (re)constitution of global orderings. We are familiar with Empire’s Law as it projects the desires of Empire upon global life-worlds. We are less so with Peoples’ Law. We see Empire and credit its rule with a normative content of ‘Law’ even if we reject its motivations and implications. The aim of introducing a Peoples’ Law perspective is to give equal dignity to peoples’ actions of resistance as amounting to a rebellious legal imagination outside of Empire’s predefinition of the ‘law-idea’. A reconciliation, or harmonisation, of desires and visions is not contemplated here – Empire’s Law and Peoples’ Law projects would stand fundamentally in conflict.

The theorisation of Peoples’ Law as presented, therefore, does indeed contravene the universalist requirement of Law as conventionally demanded. It also places a somewhat minimised role for conventional legal thinking as a means for emancipatory imaginations. This is done not as a rejection of the possibilities of ‘victories’ against Empire that might be achieved by recourse through Law. Rather, it is based on a recognition that while struggles against Empire are an everyday truth for people, ‘emancipatory law’ seldom is. Hope, therefore, is vested not upon wishing resistance through ‘law’, but rather, on thinking resistance against (Empire’s) Law. In this sense, it is not a theorisation which seeks to reclaim a lost majesty of law. It is, on the contrary, one which de-theorises Empire’s Law’s majesty. It is, in other words, an attempt towards a decolonisation from and of ‘Law’.

3. The World Tribunal on Iraq: Existential Hesitancies Between Empire and Peoples’ Law?

Where in between Empire’s Law and Peoples’ Law then might the ‘World Tribunal on Iraq’ fall?

The rejection of Empire, its manifestation perceived through the prosecution of the unprovoked invasion of Iraq, lies at the very heart of the motivation underlying the WTI ; there is no ambiguity about this. The Istanbul Platform Text which serves as the constituting ‘charter’ of the WTI movement declares its existence precisely upon this rejection:

‘A war of aggression was launched despite the opposition of people and governments all over the world. However, there is no court or authority that will judge the acts of the US and its allies. If the official authorities fail, then authority derived from universal morals and human rights principles can speak for the world.’[xxii]

It might be argued by opponents, as a preliminary to any critical analysis of the WTI, that this underlying bias so explicit in the Platform Text exposes the political motivation of the undertaking, thereby undermining the credibility of the WTI, as a ‘tribunal’, from the very start. This criticism would be valid if we adopted a standpoint which maintains the assumption of primacy accorded to ‘Law’ as conventionally understood, with all its purported prerequisites of ‘neutrality’. The Istanbul Platform text begins, after all, with a judgement, rather than a statement of investigation.[xxiii] If, however, the WTI is a creature of a different species, then a different analytical lens must be applied.[xxiv] Viewing the WTI imagination as one that derives from a Peoples’ Law orientation, it might be regarded that this explicit positioning of opposition is exactly the necessary statement of the power of judgement that makes it significant as a challenge to Empire’s Law and a reason why it is potentially significant as a Peoples’ Law doing.

As a product of its time, however, the WTI was born from no one ‘vision’. Neither has it come to be without essential conflicts of imaginations. Carrying with it the burden of a ‘crisis’ of emancipatory aspiration, the WTI has been constructed out of various cultural biases of political and legal imagination. The debates within the WTI are therefore symptomatic of the more general challenges posed by a recognition of Empire to political and legal thought. A brief description of the recurring tensions may be useful.

a) WTI as a site of competing imaginations of judgement:

Two visions of the WTI undertaking and its underlying aims may be seen as having moved the WTI process; one, of the legalist tendency whose aspirational motivation lies in the concern to preserve the sanctity of international law in a world where is witnessed the ascendancy of Empire’s Law and with it political malfeasance – theirs might be understood as the claiming of a peoples’ right to legal judgement upon Empire’s rule and its attendant violations of ‘international law’; the second vision, one arising from a movement-grounded political tendency whose motivation stems from a broader rejection of violence understood as inherent in the political-economic order maintained by Empire for its projects of profit and domination – theirs might be viewed as the claiming of a peoples’ right  to a politico-ethical judgement of Empire’s Rule. Both of these find voice in the Platform Text. Both have continued to have influence over the course of the practical construction of the WTI international tribunals process.

b) WTI as a site of competing imaginations of activism:

A related issue that has dominated much internal debate within the WTI relates to the role it is to play in a wider environment of political activism against the war on Iraq. In specific terms, the issue was to what extent the WTI should attach its name to campaign statements of the anti-war movements. At the heart of competing perspectives here is the meaning assigned to the ‘tribunal’ form. One view has been that as a tribunal activity the WTI should maintain some distance between itself and the on-going anti-war campaigns that maintain a clear political rejection of the violence against and domination of Iraq. This view holds that legitimacy for the ‘tribunal’ aspect which is central to the WTI undertaking would be jeopardised by such overtly articulated campaigning postures, that instead, the WTI should dignify itself by judgements formed during the tribunal sessions. The contrary position is that, as an outcome of the anti-war movements, the WTI has to maintain a significant political profile in support of campaigning work that is the political activity of these movements. Legitimacy, according to those who urge for an active campaigns presence, is seen more from the perspective of the movements; the concern being that should the WTI be seen as detached from the politics of anti-war campaigning, it would lose credibility among the movements as a serious political actor against the war.

Both of these issues of internal contention derive from perspectives on the idea of a peoples’ tribunal and the implications of ‘doing’ that follow, the essential questions being why a peoples’ tribunal?; and, how a peoples’ tribunal? I am not sure if these questions have seriously been addressed by the participants of the WTI initiative to any point of reaching a consensus resolution.[xxv] In this respect, the WTI initiative has emerged less as a coordinated undertaking where the individual sessions consciously contribute to a coherent framework of investigation, than a series of individualised, national sessions based upon participant preoccupations, orientations and motivations. Desiring a pragmatic outcome of realisation, a claim to a unity of diversity has been the preferred option for the mediation of contentions.

My view is that what is more important than the reality of differences within the WTI imagination is how these might be understood and addressed. What follows is a suggestion of how the WTI might be self-imagined from a Peoples’ Law perspective, where the debates outlined above become a meaningful aspect of a coherent process of thinking and acting resistance against Empire. I discuss this by reference to the issues, first of ‘legitimacy’, then of the substantive ‘tasks’ envisioned for the WTI process.

1. Legitimacy:

The issue of legitimacy lies at the heart of the seemingly competing visions of the WTI outlined above. Notwithstanding the stated ‘sources’ from which legitimacy is claimed in the Istanbul Platform Text,[xxvi] the differences may be stated thus:

·        For the ‘legalist’ – legitimacy derives from an approximation of the WTI undertaking to the processes and languages of institutions of law.

·        For the ‘politico-ethicist’ – legitimacy drives from an approximation of the WTI undertaking to the processes and languages of the anti-war movements.

I suggest that both are demonstrative of an unnecessary preoccupation.

The perceived need to seek external ‘legitimisations’, whether from institutions of power (UN accreditation, recognition by ‘authority’ figures etc.) or from ‘the movements’, reveals a need for reassurances that the doing of a peoples’ tribunal is sanctioned by some reference-point of authority. The desire for legitimacy in this way, aside from inadvertently legitimising the ‘way-of-the-world’ as it is constructed by dominant conceptions of authority, is overly constraining  because it defines the limits of imagination and  because it defines the limits of action. In practical terms, rather than beginning with the question of what needs to be done in contemplating the role of a peoples’ tribunal in developing  a serious and critical examination of the nature and realities of Empire’s rule, the dominating question becomes what can (permissibly) be  done by reference to the perceived prerequisites set by those from whom legitimacy is sought. Thus, we become preoccupied with issues of ‘credibility’, whether by mimicking institutions and practices of power in the doing of ‘Law’ or by pandering to the agendas of (mostly) institutionalised ‘movements’ of the North. Neither leads to creative and potent praxes of resistance.

A Peoples’ Law orientation might rather begin by distinguishing ‘legitimacy’ from ‘recognition’. Legitimacy, seen from this perspective, is self-defined; an assertion of being, based on a confidence of being legitimate by virtue of critical self-consciousness and of conscience. Legitimacy, therefore, is not externally sought or deemed to be so generated, existence is not to be sanctioned by accreditation. Legitimacy lies in the very self-assertion of being ‘actors’. The separate issue of ‘recognition’, that which is often confused for legitimacy, would be accepted as being open to be gained. Legitimacy gives meaning to the assumption of the power to act, recognition the subsequent test by which that action may be judged by various publics. Although the legacy of the Bertrand Russell Tribunals is much repeated as a basis from which the WTI has been imagined, and is reflected in the Istanbul Platform Text, its statement on legitimacy as deriving from the self-confident claim to being is worth recalling:

‘We are perfectly aware that we have not been given a mandate by anyone; but we took the initiative to meet, and we also know that nobody could have given us a mandate. It is true that our Tribunal is not an institution. But, it is not a substitute for any institution already in existence: it is, on the contrary, formed out of a void and for a real need. We were not recruited or invested with real powers by governments: but, as we have just seen, the investiture at Nuremberg was not enough to give the jurists unquestioned legality. . . . The Russell Tribunal believes, on the contrary, that its legality comes from both its absolute powerlessness and its universality.’[xxvii]

I make this point about ‘legitimacy’ not to undermine the significance of the WTI but, on the contrary, to emphasise it. Rather than regarding the self-creation of the WTI as an embarrassment, it should be understood as a conscious act of claiming power. The credibility of the process and its outcomes, as well as whatever recognition flows from its doing of judgement, comes not from some claimed derivation of external authority but from its integrity of doing and its quality of substance. From this position of confidence, based on the reclaimed ‘rights’ of peoples’ judgement and voice, may the WTI be an impetus for the emergence of a movement of peoples’ tribunals against Empire’s rule.

2. Tasks:

            The conception of the WTI included a series of ‘tasks’ that formed the basis upon which the international process of tribunal sessions was undertaken:

‘The first task of the tribunal is to investigate the crimes committed by the US government in launching the Iraq war. …

 

The second task is to investigate allegations of war crimes during the aggression, crimes against laws of occupation, humanitarian law and crimes against humanity, including genocide.

  
The third task is the investigation and exposure of the New Imperial World Order. The tribunal would therefore consider the broader context of the doctrines of "pre-emptive war" and "preventive war" and all the consequences of those doctrines : "benevolent hegemony", "full spectrum dominance" and "multiple simultaneous theatre wars"… As part of this process, some hearings will investigate the vast economic interests  involved in  this rationalised war-logic.

 

The tribunal, after having examined reports and documentary evidence and having listened to witnesses (Iraqi and international victims and various experts), will reach a decision.’[xxviii] 

From a reading of these tasks, some uncertainties arise regarding the questions of, why a peoples’ tribunal? and how a peoples’ tribunal? What is meant by ‘investigations’ and ‘decision’ since there already appears to have been a predetermination of judgement? Does investigation here relate to detached investigations of ‘legality’, ‘criminality’, ‘legitimacy’ (in which case, the predetermination which has been articulated as giving origin to the WTI makes this a superfluous if not a disingenuous claim), or does it pertain to an investigation of ‘facts’ in order to put on record the realities and outcomes of the illegal and criminal act (in which case what is meant by a ‘decision’)? And, what is the purpose of the sessions by conducting such investigations? Does it hope to present a ‘judgement’ of ‘crimes’ and ‘illegalities’, to present judgements on the implications of such crimes and illegalities, to present a record of facts? Or something else? At issue, is the underlying nature of interventions against Empire that the WTI seeks to initiate.

The challenge to bring coherence to the diversity of orientations and the ambiguities of aspirations that have been the reality of the international WTI process, falls upon the ‘culminating session’ in Istanbul in June 2005. And the signs are encouraging that a more rigorous elaboration of a Peoples’ Law orientation may be enabled in Istanbul.

The Framework Text of the Istanbul Session sets out two major lines of enquiry for the proceedings:[xxix] first, an investigation of the wrongs committed against the people of Iraq; second, an investigation of issues related to the implementation of justice.

Such a framework provides the conceptual space which may permit reconciliations of the various competing visions and resolution of some of the inconsistencies thus far highlighted. I discuss this potential for coherence by suggesting that we should see the tasks set as following from an identification of three significant functions of the WTI, corresponding to the original repudiations from which a Peoples’ Law imagination is born:

 

·        The Declaratory Function: rejecting the claim to ‘inviolability’ of Empire’s Rule/Law;

·        The Deliberative Function: reflecting on the realities of Empire’s Rule and their implications for thought-action thereby challenging the claim to the ‘naturalness’ of Empire’s prescribed orders; and

·        The Mandating Function: imagining strategic action for continuing Peoples’ Law initiatives to follow from the WTI thereby challenging the claim to the ‘inevitability’ of Empire’s Rule.

a) The Declaratory Function:

It was noted above that a key contemporary feature of Empire’s Rule, as evidenced by the claim to the right to unilateral violence, is the attempt to normalise the ‘constitutional’ ordering of Empire. It was also observed that the institutions in which faith for a humane ‘international law’-based order have come to be placed – the state, the UN system, national and international legal institutions – appear to have divested themselves of this obligation to resist Empire’s usurpation of ‘Law’ in favour of bit-part benefits to be gained as participants in Empire. Thus, we see the statement of rejection with which the Istanbul Platform Text of the WTI begins. And, this, I suggested, may be the very necessary claim to power which might move peoples’ law beginnings.

The rejection of the inviolability of Empire’s Rule is the first act of ‘decolonisation’. It is only through a ‘No’ to oppression and violence that imaginations of other possibilities may be born. The ‘declaratory function’ of the WTI, therefore, pertains to an undertaking to place on record the substantive rejection, by a people’s process of investigation and judgement, of the realities of Empire’s Rule and its efforts to impose the constitutional order of Empire’s Law through the prosecution of the war on Iraq. Various issues, therefore, become necessary as being the subject of such a declaration.

First, the claim to ‘legality’ made to justify the actions undertaken on behalf of Empire – here the legal declaration of illegality/criminality is a necessary act of rejection against Empire’s assertions of the normative content of its actions. Law-based considerations are a priority in this aspect of the tribunal’s proceedings. The ‘rebellious’ lawyer would be the central protagonist to bring to the public attention this legal declaration of violation.[xxx] There would be no contradiction therefore that the already formed judgements of illegality/criminality which moved the WTI into existence should be followed with the aim of undertaking a public process of declaring such a judgement based on a comprehensive presentation of evidence. The argument of illegality/criminality, in this case, would be more a matter to be presented by the session, rather than one to be determined. In this way, the unnecessary pretence of a ‘judicial’ process can be avoided, thus also avoiding the accusations which may follow if such a claim were made given that a detachment in judgement is not, and neither should it be, present in the WTI imagination.

Second, the claim to legitimacy made to justify the actions undertaken on behalf of Empire – here the politico-ethical declaration of the illegitimacy of Empire’s desires in prosecuting the war also serves as a rejection of the claim to the benevolence of Empire’s Rule. This would entail a presentation of rejections based on the ordering principles sought to be imposed by Empire for normalisation. Here also would arise the distinctive ‘listening’ function of a peoples’ tribunal which recognises the dignity of voices of suffering. What is significant in the declarations of illegitimacy which follow is not that these consequences of Empire’s designs have been claimed to possess legal sanction, but they are judged to be wrong.  A presentation of evidence demonstrating the motives of Empire, its mechanisms of control and deception and its agents of domination, and the human consequences that flow from violence and domination, all serve to record a public rejection of Empire and reclaim a peoples’ voice of judgement against such desires.

Third, the silence/inaction by the institutions entrusted with the aspirations of a humane political-legal order – in this case, a declaration against the betrayal by mainstream institutions and processes serves to record a peoples’ rejection of complicity and acquiescence to Empire’s Rule and Empire’s Law. Such a declaration would place as contested the claims to legitimacy accorded to the very institutions of politics and law and locate them within the ambit of Empire, having served as they have as functionaries of Empire for all the imposing rhetoric prior to the invasion of Iraq. A peoples’ judgement so declared would also bring to focus the necessary problematisation of ‘international law’ within Empire.  

It may be noted that the declaratory function as described does not conform to what might conventionally be understood as the object of work of a tribunal. This is consciously so, for it is based on a perspective which sees the judgements upon these violations and betrayals not as an embarrassment to be disguised by a veil of pretend ‘objectivity’ but as the very basis from which a peoples’ action flows. Rather than the staging of a mock ‘judicial’ proceeding, it is the recording of judgements based on the exposure of truths that is of primary significance. The declaratory function would, as it were, make an honest ‘doing’ out of the WTI. Put differently, it serves to announce to the world the reason for existence of the World Tribunal on Iraq, and from this, follows what potentially are the creative and creating contributions of this historical process of a peoples’ tribunal doing relevant to our time.

 

b) The Deliberative Function:

In truth, the ‘declaration’ of ‘illegality’, ‘criminality’ and ‘illegitimacy’ in the context of the invasion, occupation and on-going control of Iraq through both the violation and the application of the UN Charter canon of international law is far from breaking news. That a peoples’ tribunal so declares it, or so ‘finds’ it would cause little ripple in the political consciousness of the majority of the global citizenry. There is no Russell-ian ‘crime of silence’ in this respect which would be redressed by a WTI judgement. ‘Illegality’ and ‘illegitimacy’ have been shouted literally and figuratively, from the rooftops, not solely after the event, but from before its prosecution, to little avail it would seem. If this were the sole ambition of the WTI, then it would be not too difficult a task. The question is, what remains subject to ‘silence’ requiring  a peoples’ judgement to give it voice?

Aside from the violence inflicted as fact by Empire, also critical in Empire’s projection of dominance is the imposition of a colonized imagination by which ‘the people’ are brought to believe in the ‘naturalness’ of the order-ing so imposed. If the declaratory function of the WTI serves to place on record the peoples’ findings of the failures of the international political-legal order in the specific context of the war on Iraq, then the ‘deliberative function’ initiates a necessary process of judgement upon the implications which follow from such a finding, enabling a people-oriented reflection of the idea and practice of ‘law’ under the conditions of Empire. This is not easy work for it requires more than statements of protest, more than recounting a litany of violations and its consequences (as a record of reality). Instead, it would provoke a questioning of prevailing assumptions and aspirations that follow from such analyses. That the international political-legal system failed to halt complicity with Empire through inaction, acquiescence and silence, that normalisation of the unilateral right to violence appears to have been the outcome, that Empire’s constitutional order means the erosion witnessed of previous gains in the attempt to humanise law, that there is a usurpation of the ‘security’ discourse to impose by violence human insecurity, all of these would necessitate serious consideration before human-oriented resistance perspectives and possibilities may be charted. Also pertinent to this aspect of deliberation is a critical reflection of past and on-going efforts to resist Empire’s violence across global landscapes so that understandings may be gained of the politics of resistance. Crucially, such enquiries would locate the war on Iraq within the broader implications of Empire’s rule. The critical question is how do these realities affect our choices and strategies of intervention? As it stands, the second part of the Istanbul Framework Text appears to provide for these tasks to be undertaken.

A process of deliberation on these issues would challenge the ‘natural-ness’ of the current ‘order’ which enables Empire’s violence. In addition, and this is perhaps more important, it would also challenge the limits of possibilities sought to be presented by dominant ideologies as natural. Methods of ‘protest’, channels of challenge, institutions of recourse, languages of intervention, jurisdictions of action, all of these ordered conditions would be subject to critical re-evaluation. Here, also lies a challenge to ‘our’ own internalisations of a ‘colonised’ condition, as it may require many ‘professional’ and ‘expert’ biases to be cast aside upon examination. In admittedly general terms, the following enquiries may be undertaken as a supplement to those issues already identified in the Istanbul Framing Text:

 

·        To what extent do existing institutional spaces for political articulation and legal challenge, national or international, provide real scope for interventions against Empire? From an identification of such possibilities may be devised strategic choices for action in various viable locations.

 

·        What languages of challenge may be most effective under the current context of Empire’s appropriations and legitimisations? Such determinations may point to the extent to which languages of ‘law’, ‘human rights’ etc, given the conditions of articulation and silencings which prevail, promise a real impact on the various audiences, and whether other languages may be more appropriate in given contexts.

 

·        What non-institutional sites and strategies of intervention suggest themselves for potential impact upon the weak-spots of Empire. From this may be identified creative possibilities for mass mobilisation and direct action.

 

Should the WTI embark on deliberative tasks along these lines, then it may be able to move beyond the usual lamenting that often takes place in outraged gatherings against Empire. Aside from setting forward a compiled list of the many sins of Empire, and calling ever again for institutions that have proven themselves servile to suddenly rise as saviours, such deliberative courage would at least attempt to take Empire, and resistance to it, seriously. Out of such deliberation may be developeded a ‘mandate’ for future peoples’ actions.

 

c) The ‘Mandating Function’:

The WTI exists in a political climate where a Peoples’ Law orientation is nascent. Consistent with the stated aims of the WTI to be a component part of a creative and vital movement for peace and justice, the ‘mandating function’ would use the opportunity of solidarities fostered by the WTI process to give credence, and provide inspiration, to new directions of Peoples’ Law actions. Through the voice of the WTI, therefore, may be mandated specific future initiatives which build Peoples’ Law movements across time and space, challenging the inevitability of Empire’s ordering. It is in this connection that I suggest the WTI should envisage future campaigns.

The issue of campaigns, it was stated earlier, has been a matter of some contention during the WTI process. As noted, this debate has been influenced by two different conceptions of the ‘tribunals’ idea. However, what unites both approaches, I believe, is a tendency to see the WTI process as an adjunct to existing means of protest –whether legal or political. I suggest instead an alternative thinking on campaigns which begins with an appreciation of the potential ‘newness’ of the WTI. The issue, I think, is not whether or not the WTI should be involved in campaigns, but on how we might imagine the WTI itself as a campaign. Based on an identification of challenges and locations of action, the WTI might serve as a springboard from which a conscious and confident assertion of a peoples’ mandated action against Empire could be launched. These then would be the campaigns imagined and initiated by the WTI.

Campaigns mandated by the WTI may be formulated by thinking along the following lines:

 

·        Campaigns to intervene in the existing institutional sites identified as potentially amenable to a challenge against Empire – the WTI may, therefore, issue a peoples’ mandate calling upon activist lawyers, media workers, parliamentarians, diplomatic personnel and the like, to effect strategies of intervention as deemed appropriate, specific to the findings of the WTI proceedings. 

·        Campaigns that aim to communicate and convince ever greater sections of the global public of the violations of Empire and the mechanisms by which these are enabled – a peoples’ mandate calling on national and international movements, media activists, parliamentarians etc, to enhance the profile and volume of the recorded rejections of Empire declared by the WTI through specifically identified channels of dissemination and intervention.

·        Campaigns that seek to build Peoples’ Law movements, uniting communities of solidarity across the diverse issues of Empire’s violent orderings: a peoples’ mandate calling for coordination of existing tribunals initiatives and exchanges of peoples’ law imaginations and experiences.[xxxi]

A mandating function along these lines is suggested to extend the usual practice among many anti-war gatherings to issue generalised ‘plan of action’ statements to include critically and strategically thought out programmes of intervention that are specific to aims and locations of action. Empire, after all, does not exist in abstract terms of power; it exists only through manifestations within locations of power. It is at these locations that a peoples’ intervention may serve to repel the specific avatars of Empire. Significantly also, may it be seen that these actions of resistance stem not from isolated and aberrant instances but rather that they flow from a confident and conscious reclaiming of a peoples’ power to act. Such would be, I believe, the symbolic potency of mandates issued by the WTI. 

4. Conclusions and Beginnings?

 

The context of Empire as it emerges and impinges upon the global social majorities necessitates that we begin rethinking the assumptions of Law’s promised order for justice. Whatever our perceptions might be regarding the ‘majesty’ of Law, its violence continues as a daily ordering principle for effecting Empire’s projects. And however we might wish for ‘polite’ transformations through law’s reclaiming of the terrain of action, peoples’ struggles against Empire continues often distant from humane law’s gaze.

The WTI is in many respects reflective of the general uncertainties of imagination wrought by Empire’s appropriations of hitherto cherished presumptions of a humanity of law. These uncertainties cannot be wished away; they are necessary stages of contemplation from which clearer insights into the possibilities of thought-action against violence and domination may be attained. Despite the discomforts this may cause for those of us who are still essentially located within Empire’s comfort-zones, it is worth remembering that these imaginations of ‘alternatives’ are everyday present at the frontlines of Empire’s projections of violence.

I believe that the WTI does indeed possess a unique potential. My wish is obviously that it will seize what I believe to be a significant symbolic potency of voice, not merely of protest, but of reclamation. If we can believe that there is nothing inviolable, natural or inevitable about Empire’s rule, notwithstanding such indoctrinations, if we can recognise within ourselves the internalisations of Empire’s prescriptions as we find ourselves ‘existing’ within Empire, then we might begin to accord a rightful dignity to those for whom the struggles against Empire are more than theoretical postulations. This is simply a matter of choice. The WTI may wish to confine itself to considerations of the specific outrage of the war on Iraq within parameters, and through lenses, already existing – the language of international law, the language of urgings, the language of reformism, the language of strivings – or it may see itself as indeed a creation. May it be that after the culminating session of the WTI in Istanbul, we meet again not to express yet another outrage through a peoples’ tribunal with the same statements of rejection and urgings, but that we meet as we build new solidarities and connectivities of a peoples’ law and tribunals movements. May it be that the WTI too does not mark yet another dead-end in the course of Empire’s business-as-usual.

To the extent that the work of the WTI may be concluded with beginnings that go beyond being outraged, it portends the creation of a Peoples’ Law imagination against Empire. Decolonisation, after all, always begins with dreaming the impossible.