Gun Boat Diplomacy or Law

Mark Jones jones118 at
Fri May 4 05:12:58 MDT 2001

Nestor wrote:

> Now, the methods for debate of Mark are irksome from time to time. The
> above is what I define in Spanish as the "efecto cañita voladora", or
> in a dubious English the "wandering missile effect" (perhaps José can
> give a more accurate translation).

I presume 'loose cannon' is what you have in mind.

I think we might be at cross purposes a little here, especially because we seem
increasingly to agree about the *politics* at stake, if not all of the theory. I'm
sure we agree with every dot and comma of Castro's remarks about
extraterritoriality, and the ethical rightness but frail legal basis of Pinochet's
arrest: and above all about the need to anchor international law in the decisions of
the UN General Assembly. That is a very profound point, more than is generally
realised, I think. Last year (or 1999?) the US Clinton administration was completely
isolated at the Rome series of international meetings held to set up a new court of
human rights. The US rejection of a new international court and supporting law was
openly based on the worry that this might result in *US citizens* being subject to
arrest in other jurisdictions. The absurdity of US arguments is obvious to
absolutely everybody, and increasingly the US style is simply to declare the Pax
Americana as the only basis for international law. This kind of thinking is almost
2000 years out of date. It is the kind of idea central to Nazi thinking in the
1930s: law based on force and on an idea of national exceptionalism, the arbitrary
and capricious abuse of traditional legal mechanisms, the unilateral tearing up of
treaties, even cornerstone treaties like the 1972 ABM treaty which has been the
basis for nuclear security. In other words, the US regime, which has no mandate and
no elected president, has adopted almost all of the tactics and approaches of Hitler
Germany: the USA is the number one rogue state, a hegemon out of control and a huge
and present danger to life itself. All that the USA now lacks is a
socially-integrating racial ideology. Attempts to create a theistic state on
Christian fundamentalist lines may conceivably be designed to fill the gap but it's
a little heard to see how.

the world has entered a new phase of the open use of force, and the Bush regime has
inaugurated an arms race with the purpose of binding its allies more closely into
their client-status, and perhaps of creating a new inflationary wave which can help
to wipe out the huge external debt of the Clinton boom. As usual, the good life
enjoyed by some Americans will be paid for out of the hides of the multimillioned
masses of South Asia, Africa and Latin America, who will also have to pay for Star
Wars-2 just as they paid for the original version; the Third World will be plunged
into deeper debt.

> Could Mark change my impression by explaining in what concrete sense
> does opposition to unchecked expansion of imperialist rule overseas
> strengthen bourgeois rule at home? I would rather think it is exactly
> the other way round.

Surely it's clear enough that if you accept the premise that extraterritorial
arrests are inherently unlawful, you thereby also acknowledge the absolute right of
the bourgeois courts to impose bourgeois rule of law *inside* a state's border.
Isn't that a large hostage to fortune? Isn't that just accepting the legitimacy of
bourgeois class rule in its own terms? Our position surely is that *all* bourgeois
law is arbitrary, hypocritical and based on a monopoly of force enjoyed by the
bourgeoisie? Incidentally, while as Castro is right to say that it would be madness
for Nato judges to go here and there arresting people at will, there were actually
strong *legal* grounds for the arrest of Pinochet in particular: I think I'm right
that Chile is a signatory to the convention against the use of judicial torture
which specifically permits those accused of human rights violations to be arrested
outside their own jurisdiction; Pinochet was also indicted for ordering the torture
and execution of *British* subjects in Chile, and there are legal precedents for
this; and the Chilean defence was firstly that Pinochet was protected by diplomatic
immunity and by the parliamentary immunity granted by Chile itself; they did not, in
other words, appeal to the House of Lords on the grounds that the British
interpretation of the law was wrong, merely that Pinochet was an exception to it
(apologies if I've got some or all of the details wrong, I'm happy to be corrected).
Due process does seem to have been observed. That's important and it's important
that in all such cases, attempts should be made to ensure that legal norms and due
process always is observed; that's at least as important as arguing that the "real
criminals" (Kissinger, Bush etc) should also be arrested and put on trial.

> nobody, least of all yours truly, is
> proposing to abandon bourgeois law. I insist: my line of argument
> simply shows the need for a stronger "international bourgeois law".

This is why I think we actually do agree and once the arguments are out in the open,
this is probably obvious. Where we might residually disagree is about the question
of the state itself and the question of national and popular sovereignty. There is a
parallel debate which I'm hoping to avoid getting drawn into, about the relative
autonomy of the state and the national capital, and the relationship between
imperialism, the world market, and national capitals, and this is a debate about
growth and development as well as about the extent to which any kind of sovereignty
is still possible for non-core states which are more colonialised than themselves
imperialist (China, India, Japan etc). On past experience, we obviously have a big
disagreement here and it is also an ongoing discussion with the proponents of
relative autonomy a la Samir Amin, in the S African context particularly.I think
this big political and theoretical disagreement is what lies behind this discussion
about extraterritoriality.

> The problem Mark does not seem to see is that no bourgeois law can
> propose itself as both organically bourgeois AND
> supranational. National states are, in the asphyxiating world of
> bourgeois jurisprudence, the embodiment of bourgeois rule. No kind of
> justice that decides to one-sidedly (English?) cross national borders
> and impose the rule of one nation on another nation can be considered
> bourgeois law.

No, I don't accept this at all. There is a huge body of international case law,
treaty and contract law, underpinned by many treaties and agreements covering the
whole range of criminal, civil, state and private issues. The United Nations Charter
specifically sets out the context for all this law and for Human Rights agreements
generally, as being the context of *national* lawmaking, *national* jurisdictions.
That is precisely why it is called *international* law. Theoretically, the nations
which set up the UNO in 1944 could have agreed to dissolve all local, national
jurisdictions, to dissolve the whole system of nation-states, and create a world
government, a world state, with only one all-embracing civil code, criminal justice
system etc. People did talk about this at the time, for a few naive years bnefore
the Cold War.

That did not happen, and anyway the period after 1945 saw a huge *increase* in the
number of states. The sovereignty and rights of the individual have always been seen
as vested in and protected by the sovereignty and right of the state of which the
individual is a citizen. It is the particular state which has a *legal obligation
and duty* to uphold the civil rights of its citizens, and it has this obligation as
a signatory of the United Nations Charter and member of the UN general Assembly. The
world we live in has an architecture which is clearly and consistently designed so
that "law can propose itself as both organically bourgeois AND supranational" as you
put it, (or organically socialist, for that matter, as the Soviets thought in 1944).
The question has always been to make the UN system work, i.e. to oblige
member-states to carry out their obligations and honour all their treaty commitments
and other agreements. Actually, it has worked a lot of the time, in its own terms.
And however much Nato powers want to scrap this irksome thing, they end up having to
come back to it, so that even Nato's (illegal) bombings of Yugoslavia had to be
retrofitted with some kind of UN legal cover. They would like to get back to the law
of the jungle, but they just are not able to in practice. Yesterday the United
States was *thrown off the UN Human Rights Commission*, a remarkable slap in the
face for the Bush regime. The more the US is [self] defined as the No. 1 rogue
state, the more we shall also have to struggle to defend the principles of
[bourgeois] international law as inscribed in such institutions as the UNO. This is
another example of needing more not less, law. Someone on this list just said that
'No "we" are not'  beneficiaries of the ways that bourgeois law and right embodies
the rights of the individual subject. This is simply unserious. Without *bourgeois*
law, right and justice we would be back in the Middle Ages. The fact that US
imperialism is trying very hard to push there, or somewhere even worse, makes the
struggle to defend *bourgeois* right more, not less important. Your own remarks on
the medieval provenance of of "suprantional" law seem a little inscrutable: apart
from anythign else, there were really no properly-developed nation states in the
Middle Ages, and European legal systems derived their authority from claims about
the rights of kings and from the Pope in Rome. I don't think anyone wants to go back
to that, not even the pope.

> > It is absurd to argue, as some here do, that per contra it's bad to
> > arrest Pinochet but it's OK (from a socialist or Marxist point of
> > view) to be a state criminal, a war criminal, a plunderer of
> > national assets etc, if you happen to have Chilean or Argentinian or
> > Russian nationality. That makes a complete mockery of *our own*
> > claim to represent higher and truly universal principles.
> Nobody, again, is arguing that.

Well some people appear to be arguing exactly that: that it is wrong for Switzerland
to arrest someone like Pavel Borodin for fraud on Swiss banks, because Borodin is a
Russian high-up and this insults Russia's honour.

>What I am arguing is that no tribunal
> in an imperialist state has any right whatsoever to judge actions that
> took place outside its jurisdiction.

This doesn't make sense. "No" tribunal? Not even for example, tribunals on fishing
rights set up by a number of governments, which however happen to be located in the
capital of a power which some people call imperialist? But the whole point about
jurisdiction that it is not confined to territoriality. Every state without
exception is party to interlocking structures of international law and treaty which
constantly redefine and qualify the juridictional and other rights of the various
members. You are working to a notion of absolute national autionomy which has never
been true and never will be, because the world will collapse into chaos and war if
it was.

>An entirely different matter. Why
> should only imperialists be provided with an alibi for plundering
> (other peoples') national assets by an international law system that
> allows imperialist judges to try foreign plunderers, but ensures that
> the same imperialist judges (that is what they are imperialists for)
> defend their own, homegrown, plunderers? This reminds me of the guy
> who was so hygienic that he would always shit on the neighbour's side
> of the wall (sorry, ma'am).

Well, who disgarees? Why should they indeed? But what's your point? There is a
capitalist world market and there is a framework of international law in which all
states, even the so-called pariahs, participate. You may not like it but there it is
and that's what we have to change and to replace the capitalist world market with
something else. Are you seriously arguing that the way to do this is by liquidating
every instance of international law, every international structure and institution,
and replacing it with a system of absolkute and untrammelled "national" sovereignty?
Nobody wants this, surely. Cuba has achieved much by not participating in the World
Bank, the IMF and other interantional instutitons which, whatever their original
intent, are simply agencies of US hegemony and imperial plunder. But does that mean
that Cuba does not participate in a huge range of international structures? On the
contrary, and no-one surely is more enthusiastic about the United Nations than is
Fidel Castro. All these superstructural forms of the world system are sites of class
struggle and should be sen and used in that way.

> 1. Mark, I know you will not like this: Hitler wasn't THAT different
> from Churchill. The difference lies, mainly, on two points (a) that
> the crimes which made British imperialism look "humane" and "law
> abiding" had been committed long ago by the times of Churchill rule
> (thus bringing entire societies to the tremendous situation that a
> famine could DIMINISH their population and still they would not
> revolt), and (b) that the crimes committed by British imperialism
> were, more often than not, committed by troops or civilians which were
> on their pay. So that, from the point of view of a semicolonial
> people, it was nothing too new.

Not only do I not dislike it the idea that Churchill and Hitler weren't much
different, I'd go even further. I have recently been researching the Rudolf Hess
episode. Hess, as most people will know, was Hitler's deputy fuhrer; he flew to
Scotland in mysterious circumstances in May 1941--just before Hitler launched
Operation Barabrossa against the USSR. I'm not going to reveal all my findings here,
but I can tell you this--they seem to confrim the worst suspicions which many people
had had about the real scale of wartime collusion between Hitler and Churchill. As
for English genocides, I've written and published enough on this for my own views to
be clear, but one of the best recent books is Mike Davis's 'Late Victorian
Holocausts', which I recomment to anyone who still thinks there was anything nice
and gentlemanly about British imperialism. There was not. Nevertheless, there were
some key differences. The British, like the Americans today, preferred to let their
genocides take the form of blind, natural processes and as 'Acts of God'. One such
genocide has gone on in the fSU during the past decade, and has killed off as many
as 10m former Soviet citizens. Hypocrisy is a tired, strained word to use to
describe the attitudes struck by the Western powers which caused this catastrophe,
first by bleeding the USSR white thru a 50 years Cold War, and then by abandoning
hundreds of millions of defenceless people to their fate. We do not have to go back
as far as you say, to see examples of Anglo-Saxon sponsored genocide. Perhaps this
is why Stalin seems to have been more afraid of Churchill than he was of Hitler, and
with some reason. Nazism was so obvious a poison that Hitler created a gigantic
world alliance against him and the Axis Powers. Undoubtedly no-one in Russia today
would be speaking the Russian language, if Hitler had won. But his very extremism
foredoomed him. Anglo-Saxon imperialism has turned out to be a much more subtle,
perfidious and long-run enemy of the masses. Nevertheless, and in fact for this very
reason, I at least should prefer to a colonial subject of the British than of the
Germans. You're right, it is a Hobson's choice--but let's face it, it's hard to
fight when you're dead. I think I might have had more chance of doing something in
the middle of one of England's slow-motion genocides than in Hitler's holocaust
where I suspect I would not live long enough to make a difference.  Again, we don't
disagree. It is Anglo-Saxon imperialism, and western imperialism generally, which we
have to defeat and overthrow. And we should avoid any kind of sentimentalising about
the enemy. They know who we are, and they are out to get us. Imperialism cannot be
reformed or ameliorated, it has to be smashed. When imperialism in its death-agony,
destroys its own creations (including such things as the rule of law) we ought not
to help it do so, but on the contrary, to defend to accumulated values of bourgeois
civilisation and force, expose the hypocrisy, brutality and cynicism of bourgeois
civil society and do what we can to make them play honestly by their own rules. All
workers' movements in history, from friendly societies and co-ops to trade unions
and syndicatists, and from social democrats to Bolsheviks, have always fought hard
to mkae the bourgeois behave in a law-abiding way, to honour his commitments and
uphold his own laws. We do this because they are criminals, and we know it and they
know it.


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