Splitting-the-Sky called me last night to say he’s out of jail and planning some serious civil resistance! After being arrested and charged with “obstructing justice” (what an irony) for attempting to arrest George W. Bush for war crimes, and getting beat up by the cops (concussion and broken glasses) Splitting-the-Sky is planning to demand a full jury trial. His defense will be that Bush is a known war criminal, that the Canadian authorities failed in their duty to arrest him, and that it is those authorities who should be prosecuted for obstructing justice–not citizens who attempted to do their duty under international law.
This is a classic “civil resistance” (CR) defense, as outlined by Francis Boyle in his critically important book Protesting Power. Boyle, a University of Illinois professor and leading international law expert, argues that ordinary citizens have the right, perhaps even the duty, to arrest war criminals in cases where the authorities are unwilling or unable to make such arrests.
When a citizen like Splitting-the-Sky attempts to arrest a war criminal such as Bush, it is of course the citizen who is likely to be the one arrested by the authorities. The citizen may then present a civil resistance defense to the jury. That defense, in a nutshell, argues that international law supercedes federal, state, and local law, that the target of the citizen’s arrest attempt committed war crimes, and that the arrest attempt was therefore entirely legal and proper. According to Boyle, this defense is on sound legal footing. Not only that, but juries have found it persuasive!
Why attempt to arrest known war criminals, and then take a civil resistance defense to the jury?
First, because it is our duty under international law and common-sense morality.
Second, because it creates a courtroom venue in which the tables can be turned and the war criminals put on trial.
Third, because the publicity garnered by the arrest attempt and courtroom battle exposes the war criminals to the light of public scrutiny, which increases the chances that justice will eventually be done.
Boyle is careful to point out that CR is very different from civil disobedience (CD). CD involves violating a law, admitting that one has violated the law, arguing that the law is unjust and/or ought to be violated, and asking to be convicted and sentenced. In civil resistance, however, WE are the cops and THEY are the criminals. The CR activist who attempts to arrest a war criminal argues that it is those protecting the war criminal who, along with the war criminal, ought to be charged and prosecuted.
Boyle also points out that those contemplating civil resistance should plan their actions carefully. They should know what kind of penalties they may face (fines, jail terms) and be willing to take the risk. Also, they should plan their actions in such a way as to maximize the chances of a successful civil resistance defense. It is important to conduct the arrest attempt in a place where the civil resistor will be charged and prosecuted in a courtroom where the CR defense can be heard. Boyle pointed out on my radio show last year that the U.S. federal courts have been stacked with neocon fascist judges who ignore the law and will shut down any CR defense before it can be heard. U.S. state and local courts, however, generally allow CR defenses.
What are the prospects for a CR defense in Calgary, Alberta? It seems that Splitting-the-Sky, that heroic warrior for truth and justice, will soon find out.