Protesting Power: War, Resistance, and Law

Francis A. Boyle, Protesting Power: War, Resistance, and Law (Lanham, MD: Rowman & Littlefield, 2008).

Francis Boyle is a very busy man. A law professor at the University of Illinois, a graduate of Harvard Law School as well as a PhD in Political Science and the author of numerous books on international law, Boyle also has a long record of representing controversial clients and governments in a wide variety of both international law and domestic cases. He has, for example, served as legal counsel to Bosnia and Herzegovina, the Provisional Government of the State of Palestine, and the Chechen Republic of Ichkeria, and has represented individuals charged with various crimes while engaged in civil resistance against US foreign policy, particularly protests against nuclear weapons facilities. He has also provided legal advice to lawmakers seeking to impeach both Presidents Bush. It is therefore entirely fitting that Boyle should write this important if somewhat curious text on war, resistance, and law, which is an eclectic mixture of brief commentary on theory and detailed case studies, including court transcripts from the relevant cases. Boyle is clearly committed to his cause, and his writing is passionate and clear throughout.

Aimed at a popular audience, this short book begins with some rather brief theoretical reflections on what Boyle describes as the right to engage in civil resistance to prevent state crimes. He usefully distinguishes civil resistance from the more widely known concept of civil disobedience. Whereas in the latter situation (e.g. during the Civil Rights movement in the South) individuals deliberately disobeyed unjust and racist laws, civil resistance seeks to prevent the commission of international crimes by government actors. Boyle provides a step-by-step tactical primer on how to conduct a defense strategy once one is charged with a crime arising from a civil resistance action and specifically how to most effectively use expert witnesses on international law to buttress one’s case. His suggestions are valuable information that will undoubtedly serve the public good and assist political activists on the ground.

On the theoretical level, however, this book falls short. Boyle contrasts what he describes as Hobbesian power politics, which he sees as the basis of contemporary American foreign policy, with the principles of international law and international human rights. He regards the adoption of Hobbesian power politics (as exemplified by such practitioners as Robert McNamara, Richard Nixon and Alexander Haig among many others) as lying at the root of turning America away from such foundational principles as self-determination of peoples, sovereign equality and independence of states, and respect for international law. I say foundational in the sense that Boyle regards such principles as permeating the founding ethos of the United States. He also maintains that there were key time periods -- he cites the “pre-World War I American legalist approach” and immediately after the Second World War -- when American foreign policy had a number of key objectives including establishment of the Permanent Court of Arbitration, establishment of the International Court of Justice, codification of important areas of customary international law into positive treaty form, arms reduction, and the institutionalization of periodic peace conferences. All these admirable goals have, according to Boyle, been abandoned since the outbreak of the Cold War.

Admittedly, Boyle has not set out to write a highly theoretical text. If anything, it is more of a legal manual, and an idiosyncratic one at that, occasionally coming across almost like an advertisement for the author’s extensive consulting. But notwithstanding Boyle’s radical commitments, the assumption of two dichotomous periods in American history is a rather puzzling one. Moreover, it has important implications for the analysis. By romanticizing an earlier period of American history, Boyle is able to ignore the large volume of work, both radical and poststructuralist, that has set out to challenge the premise that international law may be used as a force for good. For Boyle, this is an obvious truth, yet even a cursory examination of nineteenth-century American foreign policy will show that it is illusory: witness the conquest of the Philippines and Hawaii (which Boyle himself has addressed through Hawaiian sovereignty litigation) as well as countless occupations in various Latin American countries. Yet Boyle clearly sees selected golden periods of American history. As a consequence, at least in the present work, Boyle never addresses the many critiques that have been made of international law, both for being Eurocentric (by ignoring the experiences of people in developing countries) and for being the cause of the problem rather than the solution.

For instance, China Miéville, the noted science fiction author, has written an exemplary text, Between Equal Rights: A Marxist Theory of International Law, which shows how the commodity-form is inherent to international law conflicts between powerful states.¹ One of Miéville’s central points is the unstable nature of international law arguments. Others such as Makau Mutua have made a different but related point by questioning the extent to which international human rights law betrays a Eurocentric bias. Antony Anghie’s magisterial work on the colonial history of international law and the history of the concept of sovereignty constitutes a third important example. The emergence of scholars centered around a school of thought known as Third World Approaches to International Law (TWAIL) speaks to their willingness to engage with the issues and rethink traditional notions of international law. These views are the polar opposite of the thrust of Boyle’s work that seeks to embrace and use international law to solve problems. Both approaches have their merits and problems but Boyle does not even engage with the many arguments on the other side of the debate.

Several chapters are devoted to specific legal cases in which Boyle served as an expert witness. To a large extent, they are annotated reproductions of testimony at various hearings including court martial proceedings of soldiers who refused to serve in the 1990 Gulf War and more recent invasion of Iraq, as well as a criminal trial relating to acts of sabotage against a naval communications site. They illustrate how international law arguments can be creatively used to defend the rights of citizens facing serious harm, including imprisonment. As well, they are powerful examples of the use of law as a counter-hegemonic tool. For instance, a 1990 court-martial hearing becomes a venue to challenge the constitutionality of the 1990 Gulf War. However, it is not entirely clear who the audience of the transcripts is and what purpose it serves to publish such details. They occupy most of this book, but is it really essential to include discussions of procedural objections by various counsel? Fewer documents and more analysis would have served this volume better.

Certain ideas clearly continue to resonate strongly today. The legal debates regarding the definition of a blockade in international law are highly pertinent to a discussion of modern international politics in the Middle East. But there seems to be a lack of focus in the book and there does not appear to be enough commentary to justify the inclusion of the later chapters devoted to the reproduction of testimony. One is left with a feeling that one is simply reading a book of transcripts documenting Boyle’s career. Ultimately neither autobiography nor legal scholarship precisely, this curious volume, while documenting Boyle’s highly commendable activism against war and injustice that definitely merits attention, simply leaves the reader puzzled and wishing there had been more judicious editing.

Reviewed by Ravi Malhotra Assistant Professor of Law, Common Law Section University of Ottawa Ravi.Malhotra@uottawa.ca Notes 1. See Carl Freedman, “Speculative Fiction and International Law: The Marxism of China Miéville,” S&D no. 42 (2006).