In the wake of Kendall-Smith’s conviction, it seems as if the question of legality will again go underground. We can reasonably ask, as Antoinette does, “Why should we worry about legality when there’s a political solution available?” Protest politics need not trouble itself with the weak fictions of international law, we might argue, since the moral infraction is clear. In the last fifty years, it has become conventional wisdom that the winners prosecute the losers for their war crimes while ignoring their own. Our behavior at Nagasaki, at Dresden, in the Falklands, at Abu Ghraib, among the Viet-Nam era Tiger Force, these things go unprosecuted because those who have been injured have no authority, and those who have the authority do not have the will.
No matter how damning the eventual loss, there’s no question of war crimes tribunals for the coalition forces. Domestically, the most we can hope for is to punish the Iraq-hawks through politics: vote them out and sideline their legislative agendas. Why, then, should we care whether the war is illegal?
If it weren’t for Kendall-Smith, I’d probably agree. But given the assymetrical influence of the soldiers and junior officers paying the price in this war and the citizens and politicians championing it, I suspect that the breakdown of this conflict must begin in the military’s ranks. In order to preserve our sense of supporting the troops, we will have to be made to believe that our support is best expressed by bringing them home rather than leaving them there. As with any ongoing military campaign, the wear and tear of fatalities and retirements, combined with a considerable compunction at enlisting during active hostilities will degrade our effectiveness. The stop-loss policies in place (otherwise known as the backdoor draft) have already reduced morale and enraged military families.
So what happens when soldiers refuse to fight? If they have no legal recourse, the penalties will become increasingly stringent, and our all-volunteer fighting force will increasingly come to resemble an army of conscripts. If, on the other hand, soldiers can muster out with reference to their own moral judgments, becoming conscientious objectors after the fact, then the military will have to fight with fewer and fewer soldiers, and eventually they’ll either institute a draft (if national security is actually at stake, which it clearly isn’t) or declare strategic victory and a beat a retreat (sorry, an ‘advance-towards-the-rear’.)
In this way, supporting the legal arguments against the war is a way of supporting the troops and hamstringing jingoistic politicians. So, I’ll begin, and y’all can join in when you catch the tune: why is the war illegal? Well, to begin with, a war is illegal if it’s either begun illegally or conducted illegally. Hmmm….