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[casi] A Bristol law student stands up to the British Government over thelegality of the sanctions on Iraq



Hi all

I wrote this short piece for incorporation into an academic paper for a
conference shortly, and I will try to get it into various places (ZNet
and so on). I thought CASI list members would like to see it.

Eric

A BRISTOL LAW STUDENT STANDS UP TO THE BRITISH GOVERNMENT OVER THE
LEGALITY OF THE SANCTIONS ON IRAQ

In October 2001, Jo Wilding, now a part-time law student at the
University of the West of England (UWE) in Bristol, took pencils,
medical supplies and textbooks to Iraq and returned from Iraq with
dates, fig jam, date syrup, musical instruments and a few Iraqi dinars
in order to raise funds for further humanitarian supplies. The export
of such supplies to Iraq is not banned, as humanitarian goods are
formally exempt from the sanctions. Importation from Iraq (other than
of oil sold via the UN Oil For Food programme in which the UN controls
any financial proceeds) of any goods is banned under the sanctions.
Wilding did not apply for an export licence to Iraq and she did not
declare the Iraqi goods to Customs and Excise until after she had sold
many of them. She invited Customs and Exercise to prosecute her in a
civil action, which it did, demanding that the courts permit them to
dispose of the goods they had seized. The case came to court in Bristol
on 2 December 2002 and I, along with more than fifty supporters of
Wilding, attended. Wilding chose to defend herself. The Crown
solicitor, Sutherland-Williams, was accompanied by a Customs and Excise
officer and the Customs and Excise press officer.

The essence of the Crown's legal case was that she admitted that she
had acted contrary to the Statutory Instruments requiring her to have a
licence and to not import the goods; that the issue of human rights was
not relevant; and that the magistrate was therefore required to grant
the request of Customs and Excise. Sutherland-Williams pointed out that
if she had applied to the Department for Trade and Industry (DTI) for a
licence, it may have been granted, but she did not try to obtain one.
The essence of Wilding's legal case was that the relevant Statutory
Instruments are secondary legislation which contravened two pieces of
primary UK legislation, namely, the Genocide Act and the Geneva
Conventions Act. This meant that the Statutory Instruments were ultra
vires and had no legal effect. She therefore demanded the return of her
goods. She did not apply for a licence because the issue at stake was
not whether she could take those particular items to Iraq. Her argument
was that the licensing system within the sanctions as a whole had
operated in a way that failed to prevent a humanitarian catastrophe in
Iraq and therefore it was in contravention of the Genocide Act and
Geneva Conventions Act. In support of her position, she provided a
document which she had written which quoted extensively from a variety
of sources, including UN documents.

Of course, the law is political, and the politics surfaced quickly.
Sutherland-Williams took the position that this was a straightforward
case in which the only matter before the court was whether or not
Wilding had breached the Statutory Instruments, she admitted she had,
and so the court was bound to find in favour of the Crown. However, he
spent a great deal of time sneering at Wilding ('she should summarise
her main points if she has any', 'any law student could come up with a
similar argument by copying it from a textbook', her submission is
'riddled with quotes some of which may be taken completely out of
context'). He said that 'We are not here to address political issues'
then immediately added 'maybe what is happening in Iraq is the
responsibility of the regime'. He also managed to find four
opportunities to refer to the fact that she was of no fixed abode and
living in a variety of squats. The relevance of this to the Statutory
Instruments is not obvious: its relevance to the notion that she was
not a fit person is. When Wilding began her rebuttal on the basis of
her supporting document, he interrupted 'We've read it - do you have
anything new to add?'. He initially suggested that Wilding should be
restricted to saying things which were not in her documents and then
proposed to the magistrate that Wilding should be restricted to
offering a summary. This despite the fact that in presenting his case
he provided nothing new in addition to his documentation: he read out
detail at great length, including information about who she travelled
to Iraq with, what route she took, how much her ticket cost, and who
drove her from Amman to Baghdad.

At no point did the magistrate, who is a lay person advised by a
legally qualified clerk, restrain Sutherland-Williams. When Wilding
commented that Sutherland-Williams had been arrogant and patronising,
the magistrate rebuked her for calling him those things, not him for
being those things. The magistrate allowed Sutherland-Williams to
provide extensive irrelevant detail read out word for word from his
documentation while requiring Wilding to summarise hers briefly. Having
said that, the magistrate was also very gentle with Wilding and
emphasised that she should take her time. The clerk put it succinctly
for the magistrate: 'The question you have to decide is whether, on the
balance of probabilities, the Statutory Instruments are legal or not'.
The magistrate found in favour of the Crown. The grounds asserted by
the magistrate without any elaboration were that there is 'No evidence
that the licensing system materially restricts the exportation of
humanitarian goods to Iraq'.

The denouement provided further insights into the politics of the law.
Sutherland-Williams requested that Wilding be required to pay 1,000
towards the Crown's costs to deter her and others from bringing about
such court cases in future, in addition to simply ensuring that the
taxpayers recoup some of their costs. Anticipating the point that
Wilding, as a part-time student, would be unable to pay such an amount,
Sutherland-Williams noted that in civil cases, costs may be awarded
without reference to the ability of the losing side to pay. However,
the clerk unexpectedly stepped in and informed the magistrate that
deterrence is a matter for criminal cases and observed out that Wilding
faced no criminal charges (though the Crown could have proffered them
if it had wished to do so for her actions). He stated that, while
winners should not be disadvantaged, losers should not be deterred from
bringing suits, otherwise civil law would become the preserve of those
who could afford it. This provoked a great round of applause from
Wilding's supporters. The magistrate decided to award the Crown 100 in
costs, which is only a small proportion of what Sutherland-Williams had
demanded. This represented a symbolic setback for the Crown, especially
taking into account the fact that, even before the magistrate gave a
figure, Wilding had declared her determination to repeat what she had
done and to refuse to pay whatever amount it happened to be.

A lawyer who had been sitting in court awaiting another case told
Wilding before the verdict 'You have lost'. It is standard
disempowering practice to represent to campaigners their actions as
failures, whatever happens,  and so it is important here to indicate
the victories that day. In non-violent civil disobedience, as with all
social situations, demeanour is a significant part of the process and
the outcome. Sutherland-Williams came across as petty and vindictive,
while Wilding's warmth and frequent happy smiles, and careful responses
to the taunts directed at her, communicated a strong sense of
rightness. For a winner, Sutherland-Williams left looking like a loser.
The greatest victory of the day was that over fifty people did
something positive in the face of the illegitimate power of the state
that day, supporting Wilding in her action. As Howard Zinn put it:

        If we do act, in however, small a way, we don't have to wait
        for some grand utopian future. The future is an infinite
        succession of presents, and to live NOW as we think human beings
        should live, in defiance of all that is bad around us,  is
        itself a marvellous victory.

Wilding will feel emboldened and supported to act again, with lessons
learned from how this action went. The local television and print
coverage which resulted will have reached many people, and it may have
been just enough to provide that last incentive to others to believe
that they too can do something worthwhile. It is at least as plausible
that social progress occurs from the bottom up through the cumulation
of vast numbers of acts never even known about in wider society as
through famous interventions from the top down.

Wilding intends to return to Iraq in January with more
humanitarian supplies. If you want to send her letters of support or
make a contribution, you can contact her on gurneyernie@yahoo.co.uk

----------------------
Dr. Eric Herring
Senior Lecturer in International Politics

Department of Politics
University of Bristol
10 Priory Road
Bristol BS8 1TU
England, UK
Office tel. +44-(0)117-928-8582
Mobile tel. +44-(0)7771-966608
Fax +44-(0)117-973-2133
eric.herring@bristol.ac.uk
http://www.bris.ac.uk/Depts/Politics
http://www.ericherring.com/


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