GIVING POWER TO THE PEOPLE

We've worn the T-shirts, climbed the flagpoles, shouted, screamed and chanted against the war on Iraq…..and what happens? The 'mother of Parliaments' votes for an attack and British guns go in blazing.
So how is it that less than a month after nearly two million marched against the war and survey after survey showed 75 per cent of Britain was opposed to such action, Parliament dares to vote against majority public opinion?
Didn't they hear us shout 'Not in our name' a countless times? Aren't these MPs the people We elect and We pay to represent Our views? Don't they read the papers?
The same questions have been asked a countless times since the outbreak of the offensive on Iraq. But then, we have actually been here before - the last Gulf war saw similar protests; only last year we were rallying behind the people of Afghanistan - yet nothing we said or did stopped our government helping the US reduce the country to dust. So why did we expect things to be different this time round? And is there some way out of our sense of utter powerlessness and rage at the injustice of it all?
We've tried the political route, but not that much changed - 15 years ago, the Tories allowed police to turn away miners joining their striking comrades on picket lines. Today, under New Labour, women and children activists are stopped from joining peace protests and sent home under police escort (Lawyers against the War, April 2003).
Then we attempted 'direct action' but that only landed us behind bars, criminalised by the State we pay to protect our rights.
The only option we haven't yet explored fully is the legal one - one which would turn the tables on Parliament and enable us to use the laws and the law-enforcers of this country to take action against the wrong-doers in government. Yet, taking court action against the government would be prohibitively expensive, slow and require considerable legal skill and organisation.
But what if members of the public took the law into their own hands, peaceably, and brought their erring representatives to justice through our own criminal justice system? Seems far-fetched, but there just might be a way, if not two, of doing this. Of course, the arguments against such action are many. Chief among them is that the law on members of the public asserting their legal rights is unclear and therefore unwise to proceed with. But unless we try to test the limits of our power, we will never know exactly what are rights really are.

Summons:
The first type of action we could take is by way of obtaining a 'summons' from a magistrates court in order to force 'the suspect' to attend court and stand trial. All this needs is for a group of activists to compile a document called 'an information' which can be laid before their local magistrates. If the court is satisfied that the information provided is sufficient to warrant a summons on the suspect, it will issue a 'summons'. If the court believes the offence under consideration is sufficient to arrest the suspect (for example, to stop the suspect offending again), then it may even issue a warrant of arrest.
Importantly, under the Human Rights Act 1998 which came into force in October 2000, as public authorities, the police, the Crown Prosecution Service and the courts are legally bound to ensure that rights accorded by the European Convention on Human Rights are complied with. These rights include Article 6 - the right to a fair trial (this right applies even to the prosecution since the case of Osman in 2000); and of particular significance to our case, Article 13 - which provides for the right to an effective remedy, even where the violation has been committed by persons acting in an official capacity. Other general principles under the convention of important use to us include the right of due criminal process, legitimate expectancy and the right of legal certainty. These principles are aimed at ensuring that any case brought before the courts is treated fairly and in accordance with legal procedure.

Citizens Arrest:
The second method of bringing erring MPs to justice is by Citizen's arrest. This ancient common law right is now enshrined in statute and allows any member of the public to 'arrest' a person suspected of committing or of having committed a criminal offence. It could prove to be a valuable tool of mass mobilisation provided it is exercised lawfully.
Rights activist Peter Tatchell attempted such an arrest last month when he stopped Tony Blair's cavalcade in Piccadilly. Interestingly, Tatchell was arrested not for actually attempting the arrest, but for breach of the peace (apparently he appeared 'confrontational').
This suggests that a non-violent citizen's arrest remains a lawful way of asserting our legal rights as members of the public. In any case, provided we remain within the law, we have nothing to lose from trying. And if sufficient arrests (say 100) are made, it could provide, as with the Summons method, the basis for a powerful test case that challenges the undemocratic way Parliament is run.

Let's examine the legal possibility of such actions in relation to the war in Iraq:

Under Section 24 of the Police and Criminal Evidence Act 1984 (hereafter referred to as PACE), anyone can arrest a person in the act of committing an arrestable offence or if s/he has reasonable grounds to suspect that a person is guilty of the arrestable offence. The section also applies to the offences of inciting, aiding, abetting, counselling or procuring the commission of any arrestable offence.
Under PACE therefore, a citizen's arrest or an action for summons is valid and lawful provided i) the offence in question is an arrestable offence (in the case of a summons the offence must be a legally-recognised crime); ii) the accused is known to have committed the offence or is reasonably suspected of doing so and iii) the offender is triable in the British courts.


i) Arrestable, indictable offences

Briefly, the international and domestic laws Blair and his government may have breached are:
- UN Security Council resolution 1154 which warns Iraq of the 'severest consequences' if it fails to comply with instructions to fully co-operate with UN weapons inspectors BUT only if implemented by the UN Security Council, not by individual member states.
- Article 2(4) of the UN Charter which generally prohibits the use of force; other Treaty laws such as the Hague Convention 1907 and the four Geneva Conventions of 1949 which apply in the context of armed conflict;
- Articles 41 and 42 which prohibit member states from enforcing any resolution with military force WITHOUT UN Security Council authorisation and WITHOUT first having exhausted all peaceable means of enforcing UN resolutions such as arbitration, judicial settlement through the International Court of Justice, negotiation on settlement through the UN;
- A number of general principles relating to Crimes against Humanity which include acts of murder, torture and of particular importance to us, inhumane acts directed against a civilian population (such as the use of 'Daisy-cutters', cluster bombs which spray small explosives over a half-mile radius (Amnesty International, 3rd April 2003) and depleted uranium shells. To qualify as 'a crime against humanity', an act need only kill one person but must be either widespread or systematic (such as that inflicted by an invading army or air force), but they may be committed either in times of armed conflict (war) or during peace time;
- Under British law, the killing of civilians by an invading army anywhere in the world is classified as 'murder' (that's 1,500 Iraqi civilians so far (official UK figures) and still rising). The international definition (during times of war) of murder is 'killing with an intent on the part of the accused to kill or inflict serious injury in reckless disregard for human life';
- Other likely offences: Eg. Tony Blair's repeated disingenuous 'reports' made to Parliament throughout the run-up to war, such as knowingly passing off a student thesis as an MI5 'Secret service dossier' on Iraq.

(For a fuller explanation of the law, see Helen Duffy's paper at www.interights.org or contact Lawyers against the war/Stop the War coalition). See also the Amnesty International website: www.amnesty.org.uk.

ii) Who is responsible?

Under the current legal system, Parliament is 'self-regulatory'. This effectively makes MPs only accountable to themselves when they withold information, mislead or deliberately lie to Parliament. But on the outbreak of war, international laws come into effect. This means that once armed conflict begins, military commanders or even a civilian in a 'position of authority' (such as a government minister) may be liable if s/he knew or should have known that the crime in question would be committed and failed to take necessary and reasonable steps to prevent it (Socialist Lawyer, Autumn 2002).
Two important factors are taken into account here - the 'knowledge' of the wrong-doer and whether s/he had the 'authority' to act.
a) Knowledge: Apart from the repeated warnings from France, China, Germany, Russia and countless other countries, a majority of states in the UN Security Council also issued a final resolution on the eve of the war declaring that the considered action would be 'illegal' and in breach of the UN Charter;
On 7th March, 2003, 16 eminent academic lawyers wrote to Downing Street clearly stating that they believed the proposed war to be illegal.
Thirdly, the Attorney-General's report to the government (which Tony Blair chose not to disclose in full) suggests that its contents did indeed warn of such an action being illegal.
From this evidence, it is clear that the Prime Minister and his Cabinet were made fully aware of the illegality of a war on Iraq. Furthermore, it is unlikely to have been mere political indignation that prompted the PM's closest aides to resign on the eve of the offensive. And was it mere coincidence that Claire Short's threatened resignation came immediately after a published warning (Guardian, 7th March) on the illegality of a war from Britain's leading legal minds?

b) Authority: The Prime Minister could have used his prerogative powers alone to authorise the war on Iraq, without requiring Parliament's approval. But he chose to allow Parliament to vote. Either way, he would be personally liable as head of the government. His entire Cabinet, in particular Defence Secretary Geoff Hoon (who admitted the widespread use of cluster bombs on civilian targets throughout the offensive (Guardian, 3rd April, 2003), the military commander of British forces in Iraq and Foreign Secretary Jack Straw who acted as chief promotions officer for the pro-war lobby, are all likely suspects for fully condoning and promoting the Prime minister's decision here and abroad.
MPs who backed the war: In addition, the pro-war lobby in Parliament would also be liable for 'inciting, aiding, abetting, counselling or procuring the commission of an arrestable offence (PACE 24(3)) by the fact that they voted for war on Iraq (March, 2003), while having reasonable grounds to suspect or 'know' that it was illegal and that it would result in the deaths of civilians.
These MPs are likely to defend their actions on account of the political mandate given by their voters. A possible counter-argument would be that under British law, agents and elected representatives (such as MPs) are only covered by such a mandate when they act within the law. Once such representatives knowingly step beyond the parameters of legality, they are on their own.
Such parameters are of course a matter of legal interpretation, but it is important to note that, as with the question of the legality or otherwise of this war, it is for the courts to decide where they lie, not the police or politicians.

iii) Jurisdiction:
Since Britain has not officially incorporated the UN Charter into national law, any breach by Britain of the UN Charter is generally not triable in British courts (as CND found recently when the High Court declined an application to declare the threatened war on Iraq as 'illegal').
But this rule applies only in 'peacetime'. Under accepted international norms, international humanitarian law applies on the initiation of armed conflict (Socialist Lawyer, Autumn 2002).
Thus, at the moment Britain launched its attack on Iraq (20th March, 2003), British courts became obliged to try violations of both domestic and international law locally.

Potential challenges to a Summons action or citizen's arrest: These may include the concept of 'Territoriality', a legal doctrine which allows a person to be prosecuted only in the country where the crime was committed. However, as discussed above, the offence of murder has international jurisdiction, as do breaches of international humanitarian law (Socialist Lawyer, Winter 1999).
A second possible challenge could come from the State Immunity Act 1978 which protects government members from prosecution by another state. This would however be irrelevant in our case, since members of the public represent the 'State' in Britain and the MPs in question are British people.

SUGGESTED GUIDELINES FOR A CITIZEN'S ARREST:
(See also Blackstone's latest edn of Statutes on Public Law & Human Rights which outlines PACE, the Human Rights Act 1998 and European Convention on Human Rights).
1. Check if your MP voted against the war at guardian.co.uk/politics.

2. Always act in a group, preferably in teams of four. Ensure all members are involved in the action, so police cannot isolate one person in the team for questioning or arrest;

3. A citizen's arrest is best conducted in a public place. This includes any public road (check it is not private), a shop, pub or restaurant during opening hours, a shopping centre and even an MP's surgery during surgery hours;

4. Always hold a large placard clearly announcing your intention. A suggested message would be: 'This is a Citizen's Arrest' or 'We are making a Citizen's Arrest'. Take photographs or film the entire event;

5. When making the 'arrest', all team members may place their hands on the suspect's shoulder as a symbolic gesture, but do not otherwise touch the suspect, unless s/he is trying to escape, in which case 'reasonable force' may be used to restrain them (remember 'reasonable' is open to interpretation, which is why filming is advisable). You could take a pair of handcuffs and warn the suspect that you may be forced to use them if they protest. Do not appear intimidating or aggressive in any way and do not block doorways or passageways. Request an audience with the suspect in private and explain your intentions calmly and quietly. Refer to yourself as 'We';

6. Inform the person that s/he is under arrest and give reasons for the arrest - you will not need to show the exact nature of the offence, such as an Article in the relevant UN Charter, but you must say that you have reason to believe they have been involved in or aided/abetted the commission of an illegal act leading to the death of civilians;

7. If you are making a Citizen's arrest at the home of the suspect, make sure you do not enter their property, including the front or back garden/yard (you could be accused of trespass), shout slogans (you could be accused of harassment and breach of the peace in a residential area) or block the public highway or pavement. You may however knock on the door and request to speak to the suspect. If you are invited in, that's fine. If not, return to the pavement outside the property and wait for your suspect to emerge onto the public highway before making your arrest. Waiting outside would effectively placing them under house arrest which is legal provided you don't cause disturbance or block the public highway. Keep away also from any front gates or you may be accused of false imprisonment, but you can stop a car from leaving once it emerged outside the gates.

8. Immediately after the arrest, you must call the local police station and explain your actions. Request that the police then arrest and caution the suspect properly, and take him/her in for questioning and hopefully, charging (PACE S. 28);

9. When the police arrive, it is necessary to give the officer full details of the reasons for the citizens arrest. This means a full list of the breaches under international law as well as details of the 'murders' you believe have been committed as a result. Take newspaper cuttings and pictures as evidence showing deaths that have occurred, quotes by your MP supporting the war, or the MP's name on a list of those who voted for war. If sufficient evidence is not given, the officer is not obliged to proceed with the arrest. But the good news is that you can arrest the person all over again - just make sure you get it right next time.

10. If the police refuse to arrest, question or charge the MP in question, remind them of your rights under human rights legislation, including the right to a fair trial under Art 6 and other rights as mentioned above.

11. Be warned that unless you have sufficient evidence to warrant an arrest, you may end up facing criminal charges yourselves for false imprisonment or even wasting police time. So it pays to ensure you have what amounts to much more than the minimum evidence required for a citizen's arrest ie. 'reasonable grounds to suspect' the person of having committed a crime.

© Deepa L. Pathi

Deepa Pathi is a journalist writing from London, UK