In Socialist Lawyer, No.94, 2024-1, pp. 24-27

The Israel-Palestine conflict is deeply rooted in historical, political, and social tragedy . From the emergence of Zionism to contentious declarations and wars, and to the recent landmark International Court of Justice (ICJ) ruling, each phase of this conflict has been soaked in blood. . This article looks briefly at the history of the Israel-Palestine conflict, examines the critical aspects of the ICJ’s ruling, and explores the potential aftermath.

In 1893 Nathan Birnbaum coined the term ‘Zionism’ . Theodor Herzl’s “Der Judenstaat” (1896) catalyzed a Zionist movement, culminating in the First Zionist Congress in 1897, which explicitly aimed to establish a Jewish territory in Palestine secured by law.

The collapse of the Ottoman Empire after World War I led to the Sykes-Picot Agreement, which divided the Middle East between Britain and France but made no mention of a Jewish homeland. However, the 1917 Balfour Declaration set out British support for the establishment of a “national home for the Jewish people” in Palestine, albeit with a caveat to not prejudice the rights of non-Jewish communities. Under the League of Nations, established in 1920, Britain became the “Mandatory Power” in Palestine, as well as present-day Jordan and Iraq.

Significant Jewish immigration led to escalating tensions with the native Arab population. The uprising by Palestinian Arabs in Mandatory Palestine against British rule lasted from 1936 until 1939, demanding Arab independence and the end of the policy of open-ended Jewish immigration and land purchases, which had the stated Zionist goal of establishing a “Jewish National Home”. The Jewish population grew under British auspices from 57,000 to 320,000 in 1935. The uprising caused the British Mandate to give crucial support to pre-state Zionist terrorist militias like the Haganah,
In 1935, the Irgun, a Zionist underground military organization, split off from the Haganah. The Peel Commission’s partition recommendation in 1937 and the British White Paper of 1939, attempted to limit Jewish immigration and foresaw an independent Palestine within ten years.

After World War II, between 1945 and the 29 November 1947 UN Partition vote, British soldiers and policemen were targeted by Zionist terrorists, especially Irgun. Haganah at first collaborated with the British against them, before actively joining them in the Jewish Resistance Movement.

The Haganah carried out violent attacks in Palestine, such as the liberation of interned immigrants from the Atlit detainee camp, the bombing of the railroad network, sabotage raids on radar installations and bases of the British Palestine police. It continued to organise illegal immigration throughout WW II.

On 22 July 1946 the British Mandate HQ in the King David Hotel in Jerusalem, was bombed in a terrorist attack by Irgun. 91 people of various nationalities were killed, including British officers, Arabs, and Jews, and 46 were injured. In February 1947, Britain announced that it would end the mandate, and withdraw from Palestine and asked for the arbitration of the United Nations.

The UN’s partition plan in 1947, proposed separate Jewish and Arab states. This plan was accepted by the Jewish community but rejected by the Arab states and Palestinian Arabs, leading to the declaration of the State of Israel in 1948 and a subsequent war involving neighbouring Arab countries. During this war the new state of Israel carried out the violent displacement and dispossession of Palestinians, known as the Nakba, the Catastrophe. There were dozens of massacres of Arabs, and about 400 Arab-majority towns and villages were depopulated, with many of these being either completely destroyed or repopulated by Jewish residents and given new Hebrew names. Approximately 750,000 Palestinian Arabs (about half of Palestine’s Arab population) fled from their homes or were expelled by Zionist militias and later the Israeli army, in what is now Israel proper, which covers 78% of the total land area of the former Mandatory Palestine.

The displaced Arabs are now to be found in the many refugee camps in Lebanon, Jordan, the West Bank and especially in Gaza, where two thirds of the population are already refugees. The war resulted the annexation of East Jerusalem and the West Bank by Jordan, and the Gaza Strip by Egypt.

The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNWRA) was established in 1949 by the UN General Assembly (UNGA) to provide relief to all refugees resulting from the 1948 conflict. More than 5.6 million Palestinians are registered with UNRWA as refugees.

After the 1967 Six-Day War Israel occupied Gaza, the West Bank, the Sinai Peninsula, and the Golan Heights. The unanimous (including the USA) UN Security Council Resolution 242 of 22 November 1967 , called for the withdrawal of Israeli troops from the occupied territories, and acknowledged the claim of sovereignty, territorial integrity and political independence of every state in the region.

The 1973 Arab–Israeli War (the Yom Kippur War) was fought from 6 to 25 October 1973, between Israel and a coalition of Arab states led by Egypt and Syria. The 1979 Egypt-Israel Peace Treaty resulted in Israel’s withdrawal from Sinai, but enabled Israel to remain in military occupation of the West Bank and Gaza, the OPTs.

Palestinian civilians are protected by the Fourth Geneva Convention of 1949, for Protection of Civilian Persons in Time of War, which Israel ratified. But it has committed numerous violations, grave breaches amounting to war crimes. Even the USA acknowledged that Israel’s annexation of East Jerusalem in 1980 was illegal. The more than 300 Jewish settlements in the West Bank, and the settler-only roads which connect them, are not only illegal, and amount to apartheid, but make a two state solution impossible.

The right wing members of Netanyahu’s coalition, especially Ben Gvir, Minister for Settlements, himself a settler, and Smotrich, advocate a Greater Israel, from the River to the Sea, according to God’s covenant to Abraham for Judea and Samaria (the West Bank), and completion of the Nakba. Netanyahu has always been totally opposed to anything resembling Palestinian statehood.

The Oslo Accords of 1993 are regarded by Palestinians as another disaster, greatly increasing the number and size of illegal settlements, and creating a Palestinian Authority which is subject to military occupation and which collaborates with Israel.

This led on the Israel side to the assassination of Israeli Prime Minister Yitzhak Rabin in 1995 and the Second Intifada 2000 to 2005. Israel, withdrew Israeli settlements from Gaza, and began construction of the “Separation Barrier” a more than 700 km concrete wall through the West Bank, condemned by the ICJ in 2004 as violating the right of the Palestinian people to self-determination., Hamas, encouraged by Israel’s desire to split Fatah, won the legislative election in Gaza in 2006. Instead of attempting to negotiate, Israel imposed a blockade on Gaza

There was armed conflict between Hamas and Israel, with many deaths, in 2008, 2012, 2014, 2018, 2021, 2022 and early 2023. Israeli complacency and intelligence failure enabled
Hamas lead a terrorist attack into Israel on 7 October 2023. Israel declared war on Gaza, and the horror of its invasion continues to the present day.

In January 2024 South Africa in a bold and unexpected initiative, filed a claim against Israel under the 1948 Genocide Convention at the UN’s International Court of Justice seeking interim measures (an injuction). Israel, which has ignored the International Criminal Court, was obliged to respond, as a UN member and signatory to the Convention.

After two days of public hearings on 11 and 12 January 2024, on 26 January 2024 the ICJ held that South Africa had presented a “plausible” case that Israel was violating the Genocide Convention ruling and that “the catastrophic humanitarian situation” in Gaza “is at serious risk of deteriorating further before the Court renders its final judgment.”

The ICJ ordered six provisional measures aimed at safeguarding the rights and lives of Palestinians:

1. Israel shall take all measures within its power to prevent the commission of all genocidal acts, particularly (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group.
2. Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above.
3. Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide.
4. Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in Gaza.
5. Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence.
6. Israel shall submit a report to the Court on all measures taken to give effect to this Order within one month from the date of this Order.

The orders stopped short of requiring Israel to “immediately suspend its military operations” in Gaza, as requested by South Africa. However, the provisional measures arguably effectively require a ceasefire in all but name, since complying with the orders that forbid the genocidal killing of Palestinians and require Israel to allow humanitarian aid into Gaza will be unworkable in the absence of one.
South Africa’s powerful submissions on 11 January were ignored in the UK mainstream media, but have been watched on Al Jazeera, the UK’s Islam Channel, and by millions all over the world, doing immense damage to Israel’s standing and credibility. Also on 26 January, following unsubstantiated allegations by Israel, the USA, UK Germany and other states which are now complicit in Israel’s crimes suspended funding to UNWRA. This was a classic “dead cat” move to distract attention from the ICJ’s powerful ruling and decision, and also further condemns the millions now crammed into southern Gaza to misery and starvation. The Haldane Society and its European Colleagues in EDH condemn the suspension, and salute the state such as Belgium, Ireland and Spain which have refused to comply.
At the time of writing, Israel must submit its report. It has already condemned the ICJ, and the UN, as antisemitic, and has rejected the decision. Netanyahu threatens continuation of the war on Gaza until 2025. Members of the Israeli government openly call for the completion of the Nakba. The horror continues.
The first words of Haldane member Blinne Ní Ghrálaigh KC’’s closing submissions to the ICj on 11 January 2024.
“In a powerful sermon delivered from a church in Bethlehem on Christmas Day (the same day Israel had killed 250 Palestinians, including at least 86 people many from the same family, massacred in a single strike on Magazi refugee camp) Palestinian Pastor Munther Isaak, addressed his congregation and the world. He said, and I quote, “Gaza as we know it no longer exists. This is an annihilation. This is a genocide. We will rise. We will stand up again from the midst of destruction as we have always done as Palestinians, though this is by far maybe the biggest blow we have received. But no apologies will be accepted after the genocide. What has been done has been done. I want you to look in the mirror and ask “where was I when Gaza was going through a genocide””. South Africa is here before this court, in the Peace Palace, it has done what it could, it is doing what it can by initiating these proceedings by seeking interim measures against itself as well as against Israel. South Africa now respectfully and humbly calls on this honourable Court to do what is in its power to do to indicate the provisional measures that are so urgently required to prevent further irreparable harm to the Palestinian people in Gaza, whose hopes including for their very survival, are now vested in this court.”

30 Years of the Russian Constitution

This article is a contribution to the Verfassungsblog debate » The Legal Tools of Authoritarianism: The Russian Constitution at 30

The question should perhaps be “what went right?”. I argue that for more than 30 years, as a result of a key provision in the Constitution, and the work of the Constitutional Court of the Russian Federation (CCRF) there were many positive changes to Russian law and practice. In 2018, I published specifically on this topic.

These advances were only possible as a result of Russia’s membership of the Council of Europe (CoE, accession on 28 February 1996, following application to join on 7 May 1992 and Parliamentary Assembly recommendation on 25 January 1996, despite the First Chechen War) and ratification on 5 May 1998, of the European Convention on Human Rights (ECHR).

The 1993 Constitution was adopted in inauspicious circumstances, after President Yeltsin tore up the existing constitution and stormed the White House, where the Supreme Soviet was in session. I return to this below.

Of course, on 16 March 2022, Russia was excluded from the CoE, following its all-out invasion of Ukraine on 24 February 2022, and ceased to be bound by the ECHR. On 23 March 2022, the Committee of Ministers (CoM) and the Plenary of the Strasbourg Court decided, separately but almost simultaneously, that Russia would cease to be a Contracting Party to the ECHR on 16 September 2022.

I have argued over the years, and most recently in a chapter in 2018, that Russian ratification of the ECHR was in no sense a “legal transplant”, but was correctly understood in Russia as a restoration of the Great Legal Reforms of Tsar Alexander II of 1864, including jury trial, an independent Bar, a reduced role for Prosecutors, and procedural rights, following Russian defeat in the Crimean War (1854-1856), and his abolition of serfdom in 1861, several years before the USA abolished slavery.

The Constitutional Court and the new Constitution

The Law on the Constitutional Court of the RSFSR (within the USSR) was signed by President Yeltsin, who had been elected President of the RSFSR, on 12 June 1991. The USSR collapsed in December 1991.

The Court started work in January 1992, almost immediately after the collapse of the USSR. From 6 July 1992 to 30 November 1992 the Court was occupied by the Case of the Communist Party, which did not produce the hoped-for (by the applicants) definitive condemnation of the Communist Party, a Russian Nuremberg, but instead in a compromise decision ruled that President Yeltsin rightly dissolved the highest bodies of the Party, but also ruled that the Party could continue to exist at the local level. There was no “drawing of a line” under Russia’s Soviet past.

The CCRF sat all night following Mr Yeltsin’s decree of 21 September 1993 declaring the Congress of People’s Deputies and the Supreme Soviet dissolved and held that his actions violated the Constitution. The Court was suspended by Yeltsin on 7 October 1993, after he tore up the 1978 Constitution, disbanded parliament, and finally shelled the White House, the seat of the parliament. As Alexei Trochev put it in Judging Russia The Role of the Constitutional Court in Russian Politics 1990–2006, “[i]n response to the Court’s finding that Yeltsin had violated the constitution, Yeltsin shelled the parliament’s building and suspended the [CCRF] by Decree 1612 of 7 October 1993.”

The new Constitution was adopted by a referendum of 12 December 1993.  The official result of the referendum was that 54.8% of the electorate had voted, and of those, 58.4% had approved the new Constitution, which came into force on 24 December 1993. Not a resounding success.

In July 1994 a new Law on the Constitutional Court was adopted. However, the new Constitutional Court started working only in February 1995.

The status of international law including the ECHR

The provision of Article 15(4) turned out to be of special importance:

4. Universally recognized principles and norms of international law as well as international agreements of the Russian Federation should be an integral part of its legal system. If an international agreement of the Russian Federation establishes rules, which differ from those stipulated by law, then the rules of the international agreement shall be applied.

The whole case law of the ECtHR became, in 1998, part of Russian law (Russia being a “monist” state), and was frequently cited in the CCRF.

The apotheosis of this new relationship seemed to have truly arrived with the Resolution of the Plenum of the Supreme Court of the Russian Federation of 10 October 2003, binding on all lower courts. The Resolution was entitled ‘On application by courts of general jurisdiction of the commonly recognized principles and norms of the international law and the international treaties of the Russian Federation’.

This Resolution was followed ten years later on 27 June 2013 by the Resolution ‘On Application of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and Protocols thereto by Courts of General Jurisdiction’. Paragraph 2 of the Resolution stated:

2. As follows from Article 46 of the [ECHR], Article 1 of Federal Law of 30 March 1998 no. 54-FZ On Ratification of [the ECHR] the legal positions of [the ECtHR] contained in the final judgments of the Court (ECtHR) delivered in respect of the Russian Federation are obligatory for the courts.

In order to effectively protect human rights the courts take into consideration the legal positions of [the ECtHR]  expressed in its final judgments taken in respect of other States which are parties to the [ECHR].

However, this legal position is to be taken into consideration by court if the circumstances of the case under examination are similar to those which have been the subject of analysis and findings made by [the ECtHR].

This clear statement of the relationship between Russian law and the ECHR continued until Russia’s illegal annexation of Crimea in 2014. In 2014 the great Judge Anatoly Kovler published an article, written the previous year, on the forthcoming 17 years anniversary of ratification. He concluded “One is reluctant to scrape the bottom to come up with an upbeat conclusion but there is no cause for an apocalyptic vision either. The Russian-European dialogue on human rights is well underway; it is not unlike a tug of war, but its results (albeit modest) are evident.”

But from then on the process of Russian departure from the CoE and ECHR was inexorable.

The impact of the ECHR in Russia

Nevertheless, on 11 January 2016 the PACE, assisted by the Human Rights Centre at the University of Essex,  published a report on the impact of the ECHR in various countries.

The report identified a number of instances of positive impact in Russia.¹⁾

• As a result of a pilot judgment (Burdov v. Russia) in 2009 over non-enforcement of a domestic court judgment in favour of the applicant, Russia enacted a Federal Compensation Act, as well as a Federal Law to guarantee the effectiveness of the new remedy.
• In 2005 the RF Supreme Court followed up the 2004 Declaration of the Committee of Ministers and extended journalists’ freedom of expression to criticism of public officials: public officials must accept that they will be subject to public scrutiny and criticism. In 2008 the ECtHR closed a number of applications in view of this change.
• Following Mikheyev v. Russia (2006) and other similar judgments, on account of torture or inhuman and degrading treatment inflicted on persons held in police custody and a lack of effective investigations into such acts, special investigation units were created within the Investigative Committee and tasked with investigating particularly complex crimes by police and other law enforcement bodies.
• There had been progress in the implementation of the ECtHR ’s 2012 pilot judgment in Ananyev and Others v. Russia concerning inhuman and degrading conditions in Russian remand prisons (SIZOs) and the lack of an effective remedy. Russia presented and implemented an action plan as a result, monitored by the Committee of Ministers.
• A number of measures had been taken to remedy numerous violations of the right to liberty, guaranteed by Article 5 of the Convention, owing to unlawful and lengthy unreasoned (or poorly reasoned) detention on remand. Legislative changes were made between 2008 and 2011. Both the CCRF and the RF Supreme Court had emphasized that a suspect or accused may be detained only on the basis of a valid judicial decision. This had been most recently monitored by the Committee of Ministers in 2015.

Pragmatism from the CCRF and resolution of the Russian Hirst

In my 2020 article “Russia and the European Convention (or Court) of Human Rights: The End?” I highlighted what was perhaps the last example of a pragmatic conversation between the CCRF and the ECtHR.

On 19 April 2016, the CCRF rendered a judgment in which it examined the question of the possibility of executing the judgment of the ECtHR of 4 July 2013 in the case of Anchugov and Gladkov v. Russia (on prisoners voting rights, the Russian Hirst v UK) in accordance with the RF Constitution. There were amicus curiae briefs before the CCRF arguing that the problem could be resolved by interpreting the RF Constitution, rather than seeking to amend it, which the CCRF could not do.

The CCRF, with three powerful dissents, disagreed and held that in 1998, when Russia ratified the ECHR, there was no case law under Article 3 of Protocol 1 (right to democratic elections) prohibiting a “blanket ban” on prisoners’ voting. Otherwise, ratification would have contradicted the RF Constitution.

However, the CCRF suggested that, by an amendment to the criminal law, persons detained in Russian “open prison” correctional colonies could be reclassified so that they do not fall within Article 32(2) of the RF Constitution. If this was done, Russia would in effect implement the ECtHR’s judgment. The CCRF emphasized the priority of international law, especially the ECHR, over Russian domestic law, while insisting that it is the final judge on issues concerning the RF Constitution.

Indeed, the pragmatism of the CCRF prevailed and, on 25 September 2019, the Committee of Ministers (CM) of the CoE adopted a final resolution,  CM/ResDH(2019)240, which closed the supervision of Anchugov. The closure of the case meant that Russia, taking the advice of the CCRF, had complied with the ECtHR’s judgment, according to the CM’s assessment. The judgment was executed through the introduction to the Russian Criminal Code of a new category of criminal punishment “placement in correctional centers for community work”. Persons detained in this way would have the right to vote and Russia was able to comply with the ECtHR’s judgment. Gleb Bogush and Ausra Padskocimaite wrote a strong criticism of this resolution, claiming that the CM should not have accepted Russia’s compromise.

But that chapter in Russia’s constitutional history has been closed.

References

↑1	See my 2018 chapter on Russian implementation of EctHR judgments in the 2018 collection Russia and the European Court of Human Rights: The Strasbourg Effect.

Prof Bill Bowring, Birkbeck College, Barrister

Russia has been committing a wide variety of heinous war crimes since its all-out invasion of Ukraine, starting on 24 February 2022. These have been documented by many human rights organisations.

On 2 March 2022, the Prosecutor of the International Criminal Court (ICC), Karim Khan KC, announced he had opened an investigation into the Situation in Ukraine on the basis of the referrals received. The scope of the situation encompasses any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person from 21 November 2013 onwards. The ICC has a team investigating war crimes committed in Ukraine.

On 17 March 2023, Pre-Trial Chamber II of the ICC issued warrants of arrest for two individuals in the context of the situation in Ukraine: Vladimir Putin and Ms Maria Lvova-Belova (the Russian children’s ombudsman), for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to Russia. The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022.

Russia is highly unlikely to surrender unconditionally, as was the condition for the Nuremberg trials, and it is equally unlikely that Putin will find himself in the dock at the ICC in The Hague. But the arrest warrants can be seen as a smart move by the Prosecutor, since Putin freely admits the allegations against him, states sympathetic to Russia have become less so, and Putin cannot travel to any jurisdiction where he might be arrested.

But it is notable that the Prosecutor has since 2021 also been carrying out an investigation into war crimes committed in the Occupied Palestinian Territories and Gaza, but so far there have been no indictments or warrants for arrest.

I been asked by USC to write a blog post on “justice for war crimes”. By “justice”, many people mean “revenge”, pure and simple. In the case of war crimes what is meant is the identification, prosecution, conviction and punishment of the perpetrators.  The ICC exists to prosecute individuals for war crimes.

The ICC is not part of the United Nations. Like the Geneva Conventions of 1949 and their Additional Protocols of 1977, it was created by the International Committee of the Red Cross, based in Switzerland. On 17 July 1998, 120 States adopted the Rome Statute, the legal basis for establishing the permanent ICC. The Rome Statute entered into force on 1 July 2002 after ratification by 60 countries. 123 states out of 193 members of the United Nations are now members of the ICC, including the UK. But the USA, Russia, India and China – and Israel – are not members. The ICC is therefore hamstrung in a way similar to the UN Security Council, with its five Permanent Members, the victors in WW II, having the right of veto. The United States energetically concludes treaties with as many states as possible, so that US citizens can never be prosecuted for crimes committed on the territory of states which are members.

To repeat, war crimes can be committed by the citizens of any state, if committed on the territory of a state which is part of the ICC system. For example, Ukraine and the State of Palestine.

What are war crimes?

Laws of war, laws of armed conflict, go back to the start of recorded history. In particular the principle that combatants who are wounded or otherwise hors de combat, or who have surrendered, should be spared. The reason is simple. In warfare, neither side can be sure that it will win. Better to lose, and survive, perhaps to fight another day.

But prosecution of individual perpetrators for war crimes is much more recent.

The Nuremberg trials of 1945-46 were only possible (I emphasise) because of Germany’s unconditional surrender on 8 May 1945 to the allied forces of the USSR, which got to Berlin first, the USA, Britain and France.

The German accused were tried for the new crime of against peace (aggression), developed by the Soviet jurist Aron Trainin; war crimes, which already existed in international law as criminal violations of the laws and customs of war;  and the new crimes against humanity, since war crimes did not apply to a government’s treatment of its own citizens. The USSR, Britain and the USA agreed that crimes against humanity included “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population”.

Genocide became an international crimes with the Genocide Convention of 1948. And war crimes were codified by the Red Cross in the four Geneva Conventions of 1949. Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Geneva Convention III relative to the Treatment of Prisoners of War; and Geneva Convention IV relative to the Protection of Civilian Persons in Time of War. The four 1949 Conventions have been ratified by 196 states, including all UN member states, both UN observers (the Holy See and the State of Palestine), as well as the Cook Islands. The Conventions were strengthened by two Additional Protocols in 1977.  174 States are party to Additional Protocol I which  reinforces the GC IV to the benefit of victims of international armed conflicts. 168 States are party to Additional Protocol II which relates to the protection of victims of non-international armed conflicts.

All States parties to the Conventions are required to make them part of their own domestic law, in the UK the Geneva Conventions Act of 1957. Each Convention contains “grave breaches” with criminal liability, and these are crimes of “universal jurisdiction”. States are under an obligation to prosecute anyone of any nationality who commits grave breaches anywhere, if that person is on their territory. But a warrant issued by the London court in 2008 to arrest Israeli General Almog on his visit to the UK, for the crimes of ordering the demolition of 59 Palestinian homes, failed as the general was tipped off and was able to return home.

The failure of these “universal jurisdiction” laws was part of the impetus for the 1998 Rome Statute of the ICC.

It is not possible to prosecute Putin for the most serious crime, aggression, because this crime was only added to the ICC’s jurisdiction in 2018, and an individual can only be prosecuted for the crime of aggression if they are a national of a state that has signed up to the Court’s statute. So not Russia.

Individual prosecutions for the crime of genocide require proof of genocidal intention, and there have been very few convictions, in cases concerning Former Yugoslavia and Rwanda, in the Tribunals established by the UN Security Council, which have now completed their work. Their case-law is now part of the ICC’s case-law.

I repeat again that the Nuremberg trials were only possible because of Germany’s unconditional surrender. They can be criticised as “victor’s justice”, as there were no prosecutions of Churchill or “bomber Harris” for the fire bombing of German cities; or of Truman for Hiroshima and Nagasaki.

There are private initiatives for the prosecution of Putin and others, but these will have even less teeth than the ICC. In the end, Ukraine must be assisted in every way to maintain its heroic resistance to Russian aggression, and Putin is in an increasingly dangerous situation, for himself and for Russia. He thought he would have a victorious “five day war” in Ukraine, as he did in Georgia in 2008, when the Georgians ran away. If asked, I would have advised him that to take on Ukrainians was a very bad idea.

There is a mainstream narrative which holds that “human rights” are a Western European construct in origin, starting with Magna Carta in 1215, continuing with the Bill of Rights in 1689, and the Déclaration des droits de l’homme et du citoyen in 1789, with a 20th century apotheosis in the Universal Declaration of Human Rights (UDHR) in 1948, the European Convention on Human Rights (ECHR) in 1950, and the two UN Covenants on Human Rights in 1966.

But the first of these was a charter of the rights of the English Barons, and the second the rights of Parliament, which had won the English Civil War or Revolution, culminating in the execution of King Charles I in 1649. The 1789 Declaration excluded women and permitted slavery. And the history of Western Europe in the 18^th, 19^th and 20^th centuries was a history of slavery, rampant imperialism and worldwide exploitation and bloodshed based on racism.

The ECHR had its origins with Winston Churchill, who, after the Labour Party’s landslide election victory in 1945, created the Council of Europe (CoE), the ECHR, and the European Court of Human Rights (ECtHR), first, as the ideological counterpart of NATO in the Cold War, and second, to prevent socialism in the UK. The ECHR was drafted by conservative lawyers, and closely follows the 1789 Déclaration, including the right to private property.

This is why it is so ironical that British Tories (who are not conservative under any description) are clamouring for the UK to denounce the ECHR and leave the CoE; and describe the ECHR as a “terrorist’s charter”, and condemn UN “interference”.

However, I am for my sins a human rights lawyer, and have been practising at the ECtHR for more than two decades, mostly for Kurds against Turkey, and Chechens against Russia, as well as working for the UN, OSCE and EU as a human rights expert. Despite the fact that a case at the ECtHR takes years. My Kurdish and Chechen clients wanted the truth about what had happened to them, and many won their cases. But as peoples they are still victims. Law is not emancipatory, but quite often the help of a good lawyer is essential.

Western European democracy was based on imperialism, and Mussolini, Hitler, Franco and Salazar were all possible in Europe. Nonetheless, rights to freedom of expression, freedom of association, the rights to life, personal liberty, fair trial, and respect for private and family life, home and correspondence, have acquired real meaning through political and social struggles.

In my own country there is increasing repression of environmental protesters, with many peaceful protesters sent to prison; indefinite detention of asylum seekers with threats of expulsion to Rwanda; a direct challenge to the right to strike; voter suppression in elections; and persecution of Muslims for their religious beliefs.

As a result of the recent decision of the ICJ, the UK and US are guilty of complicity in genocide by Israel in Gaza.

The International Criminal Court is impotent because of the fact that the USA, India, China and Russia – and Israel – are not parties. Its Prosecutor, a UK appointee, can issue indictments against Putin, but not Netanyahu.

So there is a real fight. Lawyers cannot win it. Only popular movements and public opinion.

Towards a Siege Mentality? Crisis, Authoritarianism, and Emergency Powers in the Long Twentieth Century

Virtual workshop, 22-23 September 2023

The Labour Party’s States of Emergency – Class War Against Labour?

Bill Bowring, Birkbeck College

Outline

1. There will be a General Election in the UK not later than the end of 2024. On present polling, the Labour Party. led by Sir Keir Starmer, will win, inheriting the wreckage of 13 years of Tory Party rule and austerity, and of course the disaster of Brexit.
2. On 12 September 2023 Labour’s Deputy Leader, Angela Rayner, a proud working class woman, addressed the annual Trades Union Congress,  which has more than 5.5 million working people in 48 member unions, and said: “I come here with one message today. That the next Labour Government will build an economy that works for working people. With a New Deal for Working People. And Labour will start by bringing forward an Employment Rights Bill to legislate for this. Within the first 100 days of entering office. That’s a cast-iron commitment.” At present there is no Right to Strike in Britain, and to go on strike legally requires onerous procedures.

What is the Labour Party?

• The Labour Party is completely different from continental European social democratic parties, in that it was created by and for the trade unions. In most European countries, trade unions were organised by left wing political parties, for example the CFDT and CGT in France, CGIL in Italy.
• The Trade Union Congress, TUC, was founded in 1868, when a group of trade unionists from all over the UK came to Manchester, and held the first meeting of the TUC.
• In 1899, a Railway Union member proposed in his union branch that the TUC call a special conference to bring together all left-wing organisations and form them into a single body that would sponsor Parliamentary candidates. The proposed conference was held in London on 26 and 27 February 1900. The meeting was attended by 129 delegates, a broad spectrum of working-class and left-wing organisations—the trades unions present represented almost half of the membership of the TUC.
• The delegates passed a motion by Keir Hardie to establish “a distinct Labour group in Parliament, who shall have their own whips, and agree upon their policy, which must embrace a readiness to cooperate with any party which for the time being may be engaged in promoting legislation in the direct interests of labour.”
• This created an association called the Labour Representation Committee (LRC), meant to co-ordinate attempts to support MPs sponsored by trade unions and represent the working-class population.
• Support for the LRC was boosted by the 1901 Taff Vale Case, a dispute between strikers and a railway company that ended with the union being ordered to pay £23,000 damages for a strike. The judgement effectively made strikes illegal, since employers could recoup the cost of lost business from the unions.
• In the 1906 general election, the LRC won 29 seats. In their first meeting after the election, on 15 February 1906, the group’s members of Parliament decided to adopt the name “The Labour Party” formally.
• Many Labour MPs are sponsored by trade unions, and a significant part of Labour’s income comes from the trade unions. 11 trade unions are affiliated to the Labour Party.
• At the Party Conference half a million Party members are represented by Constituency Labour Party delegates, and millions of working people are represented by Trade Union delegates. Currently, affiliated trade unions hold 50% of the votes at the conference, down from 80% in the period before Tony Blair. Some 40% of the votes are held by the three largest affiliated trade unions (Unite, 1.4 million members; Unison, 1.3 million; GMB, 580,000)
• I insist therefore that the Labour Party was founded by the trade unions, and belongs to the trade unions.

States of emergency in Britain

1. In the UK, only the Sovereign has the power to introduce emergency regulations in case of an emergency, broadly defined as war or attack by a foreign power, terrorism which poses a threat of serious damage to the security of the UK, or events which threaten serious damage to human welfare or the environment of a place in the UK.
2. The Sovereign, now the ill-named Charles III, always and only acts on the advice of the Prime Minister. The duration of these regulations is limited to thirty days, but may be extended by Parliament.
3. A state of emergency was last invoked in 1974 by then Tory Prime Minister Edward Heath in response to a wave of strike action.

What is Labour’s record in power?

1. Contrary to the intention of its founders, Labour in power has instigated States of Emergency against workers in struggle.
2. In the long 20^th century there were only four declarations of a state of emergency, in the dock strike of 1948 and 1949 (by the Labour government), during the 1955 rail strike (by the Tories), and in the 1966 seamen’s strike (by Labour).

1945 – the Labour government of Clement Attlee

1. On 5 July 1945, just two months after Victory in Europe day, to the astonishment and chagrin of Winston Churchill, the Labour Party led by Clement Attlee won a landslide victory in the General Election, with 393 seats to the Tories’ 197, an increase of 239 from the previous election in 1935. 
2. Attlee is Sir Keir Starmer’s role model.
3. (Collins) No period in the Labour Party’s history ranks as highly in Labour left mythology as that of the post-war Labour government led by Clement Attlee from 1945 to 1951.
4. The election of a Labour government gave hope to many workers whose lives had been ravaged by the impact of a devastating war, and it is undeniable that the introduction of the National Health Service and the welfare state under his leadership were truly transformational to the lives of ordinary people for decades to come. Indeed, the Party proclaimed in its election manifesto that “The Labour Party is a Socialist Party, and proud of it.” 
5. Yet (Collins) it was a strange kind of socialism, which imposed a bloody partition on India, pursued colonial war in Malaya, and played a pivotal role in creating NATO. Indeed, Labour’s nationalisations of key sectors of Britain’s ailing post-war economy took place without any semblance of workers’ control. And when it came to industrial unrest, Attlee and his government proved yet again that Labour’s priority was maintaining social order and capitalism in Britain, and sided with the employers against working people. 
6. Recent scholarship (Edgerton) has shown that Attlee’s government was far from socialist, but had in fact a nationalist programme and policy.
7. The Attlee government had declined to overturn Order 1305 – a ban on strike action introduced during the Second World War – upon coming to power. This meant that any industrial action taken under Attlee’s government was ‘unofficial,’ which made it far more difficult to conduct negotiations, but much easier for the government to use extraordinary means to put down strikes.
8. Within its very first week of existence, the Attlee government had already sent up to 4,000 troops to break up a strike by port workers at London’s Surrey Commercial Docks, who had been calling for a basic pay rise in one of the lowest paid industries.
9. Not long after, in September 1945, a strike broke out at the docks in Birkenhead. The minister for Labour refused to meet the strikers and the government proceeded to send 21,000 troops to break the strike.
10. These were not exceptional cases. Attlee’s government routinely employed troops to break strikes across various industries in the years that followed – totalling no fewer than eleven occasions by 1950 – and declared state of emergencies to deal with strikes in 1948 and 1949.
11. The Labour Government twice resorted to emergency powers proclamations after the Second World War. In both instances a dock strike was the cause of the declaration.

The 1948 Dock Strike.

• (Barram). By 25 June 1948, 19,622 men were on strike in London, and troops were brought in to unload perishable cargoes. On 28 June the strike spread to the Liverpool docks, so that more than 9,000 men were on strike there. At that point the Government sought to have a State of Emergency declared, and Attlee broadcast to the nation on that evening.
• On 28 June 1948, the first proclamation of emergency was issued. The dispute was not prolonged, and the proclamation was allowed to expire. No regulations were issued on this occasion.

The 1949 Dock Strike.

• (Cotter) On 11 July 1949, an emergency was again proclaimed. On this occasion a code of emergency regulations was promulgated. The emergency was declared at an end and the proclamation revoked on 29 July 1949.
• Broadcasting to the nation, Attlee spoke about the fact that the strike was unofficial, was affecting the UK’s needs for food and trade, and was taking place in spite of the availability of negotiating mechanisms. 
• The focus of the nineteen regulations submitted to Parliament by the Labour Government on 11 July 1949, was the flow of material to and from the docks. The Minister of Transport was empowered to appoint an “emergency Committee” which, subject to general or special instructions from the Minister, had power to control the commercial port facilities of the nation.
• The regulations proscribed interference with stevedoring operations, trespassing on working or storage premises, “loitering in the vicinity of any premises used or appropriated for the purposes of essential services,” and the inducement of His Majesty’s military or police forces to withhold their services.
• The prohibition of “loitering” would appear to have been a ban on picketing, although the Emergency Powers Act exempted peaceful persuasion to strike from curtailment by emergency regulation.

Harold Wilson and the 1966 seamen’s strike

• A downturn in the economy and a series of scandals in the early 1960s (the most notorious being the Profumo affair) had by 1963 engulfed the Tory government, in power since Labour’s defeat in 1951.
• The Labour Party returned to government with a 4-seat majority under Harold Wilson in the 1964 general election, but increased its majority to 96 in the 1966 general election, held on 13 March 1966. The 1966 election was my first experience, aged 16, of campaigning, and I have been a member of the Labour Party, with an excursion through Trotskyism from 1969 to 1973, ever since. 
• (Tyler p.18). A seven-week strike by the National Union of Seamen (NUS) began on 16 May 1966, just a few months after the election. It demonstrated both the fragility of government attempts to control incomes, and the growing frustration of Wilson with what he saw as politically motivated attempts to damage his government.
• The NUS was demanding that their 56-hour week is reduced to 40 hours.
• The Minister of Labour Ray Gunter acknowledged that conditions and regulations governing the seamen needed to be modernised, but said the pay demands could not be satisfied because the resulting amount of overtime pay would go counter to the prices and incomes policy that aims to reduce inflation by limiting wage rises to 3.5%.
• As Cabinet conclusions from 19 May 1966 record, it was feared that concessions to the NUS would lead to the country suffering, “both the industrial dislocation of the strike itself and the grave economic consequences of concessions on pay which would totally undermine the Government’s Policy on prices and incomes”‘.
• On 23 May 1966 a State of Emergency was declared. The emergency powers allowed the government to cap food prices, and allowed the Royal Navy to take control and clear the ports and lift restrictions on driving vehicles to allow for the free movement of goods.
• On 28 May 1966, Harold Wilson said that Communists were using the seamen’s strike to gain influence over the NUS. He said they were “endangering the security of the industry and the economic welfare of the nation”.
• The following day the seamen decided to return to work, partly due to his comments and partly thanks to a pay compromise reached with ship owners.
• On 20 June 1966, Wilson launched an attack on what he saw as the militant elements within the union, famously referring to ‘a tightly knit group of politically motivated men’.

Conclusion

• The last two years have witnessed a wave of strikes, called by several trade unions, including my own (UCU, University and College Union), and the Royal College of Nursing, which had initiated no strike action for 100 years. Doctors and Consultants, teachers, and many others are on strike. The two largest unions, Unite and Unison, with nearly 3 million members between them, are now led by remarkable women, and have put Labour on notice that their financial support is dependent on Party support.
• However,  Sir Keir Starmer told TV’s Sky News on 15 August 2022 that “you can’t sit around the cabinet table and then go to a picket line” in some of his most direct criticism of his own MPs defying party orders by appearing at strikes recently. Asked if there are any circumstances where he would stand on a picket line, Sir Keir said: “No”.
• Starmer has no background in trade unions (unlike his Deputy, Angela Rayner), and indeed was chief Prosecutor, Director of Public Prosecutions from 2008 to 2013. His TV appearances show him against a background of Union Jacks, and he is a firm monarchist and nationalist.
• With Labour governments having called two out of three States of Emergency in the long 20^th century, what is the likelihood that under a new Labour Government there will once again States of emergency and the use of the armed forces against workers?

References

Anderson, Ben. (2021). “Scenes of emergency: Dis/re-assembling the promise of the UK emergency state.” Environment and Planning C: Politics and Space, 39(7), 1356–1374.

Collins, Jodie (2022) “ Keir Starmer’s Betrayal of Workers is Nothing New for Labour. Since its beginnings, Labour has been no friend to workers.” Novara Media at https://novaramedia.com/2022/08/05/keir-starmers-betrayal-of-workers-is-nothing-new-for-labour/

Campsie, Alex (2017) “Populism and grassroots politics: ‘New Left’ critiques of social democracy, 1968-1994” Renewal : a Journal of Social Democracy; Vol. 25, Iss. 1,  62-75.

Cotter, Cornelius P. (1953) “Constitutionalizing Emergency Powers: The British Experience,” Stanford Law Review 5, no. 3 (April 1953): 382-417

Edgerton, David (2005) Warfare State: Britain, 1920–1970 Cambridge University Press

Edgerton, David (2019) The Rise and Fall of the British Nation: A Twentieth-Century History Penguin

Fielding, Stephen (2014) “The Wilson government: a roller-coaster reputation” British Politics Review Volume 9 | No. 3 | pages 2-5

Harrod, Roy (1966). “Recent Events in the British Economy”. Weltwirtschaftliches Archiv, 97, 233–250.

Klieman, Aaron (1978) “Emergency powers and liberal democracy in Britain,” The Journal of Commonwealth & Comparative Politics, 16:2, 190-211

Minkin, Lewis. (1974). “The British Labour Party and the Trade Unions: Crisis and Compact.” ILR Review, 28(1), 7–37.

Neocleous, Mark. (2006). “The Problem with Normality: Taking Exception to “Permanent Emergency.” Alternatives, 31(2), 191–213. And at https://www.researchgate.net/publication/241643145_The_Problem_with_Normality_Taking_Exception_to_Permanent_Emergency

Neocleous, Mark (2007) “From Martial Law to the War on Terror”  New Criminal Law Review 10 (4): 489–513.

Roberts, L. (2015). Strikers with Poems. In: Lang, A., Smith, D.N. (eds) Modernist Legacies. Modern and Contemporary Poetry and Poetics. Palgrave Macmillan, New York.

Rubinstein, David (2000) “A New Look at New Labour” Politics Volume20, Issue3 Pages 161-167

Sandbrook, Dominic. State of Emergency: the way we were: Britain, 1970-1974. Penguin UK, 2011.

Statewatch News online: “The origins of Emergency Powers Acts in the UK” 28 March 2012 at

https://www.statewatch.org/news/2003/june/statewatch-news-online-the-origins-of-emergency-powers-acts-in-the-uk/

Thompson, E. P. (1979). The secret state. Race & Class, 20(3), 219–242.

Thorpe, Keir, (2001) “The ‘Juggernaut Method’: The 1966 State of Emergency and the Wilson Government’s Response to the Seamen’s Strike”, Twentieth Century British History, Volume 12, Issue 4, Pages 461–485

Turnbull, Peter., Morris, J., & Sapsford, D. (1996). “Persistent Militants and Quiescent Comrades: Intra-Industry Strike Activity on the Docks”, 1947–89. The Sociological Review, 44(4), 692–727.

Tyler,  Richard (2004) Thesis “’Victims of our history’, the Labour Party and In Place of Strife, 1968 to 1969” at https://qmro.qmul.ac.uk/xmlui/bitstream/handle/123456789/1853/TYLERVictimsOf2004.pdf

Working paper for the Legal Form Workshop, Krakow, 14-15 April 2023. Not for citation.

Introduction

In this working paper, I start with the concept of the “legal form” as proposed by Przemysław Tacik and Cosmin Cercel in their substantial introductory paper “Towards the Generalised Concept of the Legal Form”. Next, I ask whether there has in fact been a serious debate as to “legal form” prior to the work in 2021-4 of Yevgeny Pashukanis. Third, I distinguish between “natural laws” and “human laws” as analysed by Baruch Spinoza, This distinction was maintained by his disciples Karl Marx and Friedrich Engels. For them a key natural law was the ”law of value”, which, like the law of gravity, determines the activity of capitalists whether they like it or not. Fourth, I maintain that “legal form” refers to human laws only, and that neither Marx nor Engels referred to or analysed the “legal form” or any cognate concept, nor did they feel they needed to. While Marx intended a volume on The State he did not proposed to write on The Law. Fifth, I turn to Pashukanis himself, starting with the history of his General Theory, and the context in which it was written, identifying startling problems with the translations into English. Sixth, what was his intention in concentrating on “legal form”, and why does it continue to exert such a powerful influence today?

The proposal by Tacik and Cercel

After introducing their reader to “modern dialectics” (as found in Lukács and Žižek[1]), the authors propose a working concept of the legal form. “Legal form is the transposition of an arbitrary political will onto the self-sufficient normative level which produces a surplus of discriminatory symbolic power that exceeds the power directly contained in the command of the law-giver.”  As the authors make clear, this language is “Lacanian parlance”. Indeed, as Peter Čuroš has noted in his review of Cercel’s monograph[2], accurately, I think: “The methodology that Cercel follows in the book and his approach to the jurisprudence of state communism is inspired by four primary ideas – Giorgio Agamben’s concept of the state of exception, Walter Benjamin’s historicism, Jacques Lacan’s psychoanalysis and perception of the law as the “Other” in the symbolic stage and Slavoj Zizek’s spectre of the ideology.” They take us through Kant, for whom law is a self-sufficient normative world; and Hegel, for whom, they claim, “the “legitimacy of the law can lie only in its universal form”.  Though, I add, neither had anything to say about the “legal form”. Finally, they present “Marx’s critique of the legal form”, which, they say “can be found mainly in his early writings”. It is certainly nowhere to be found in Capital, as I will explain.

Finally we come to “the properly Marxist concept of the legal form”: The legal form is a tool of political violence in the class struggle that consists in defining the threshold between social visibility and invisibility

They concede a page later as to “the scarcity of Marx’s considerations on the law itself – and the lack of general theory of the legal form in his writings”. And we are brought back, for a second time, to “Lacanian parlance”, and to Agamben’s “bare life” [3]

Legal form apart from Pashukanis – and with him?

Pashukanis’s Law and Marxism. A General Theory, first published in Soviet Russia in 1924, first appeared in English, in the translation by Barbara Einhorn, and edited and introduced by Chris Arthur, in 1978[4]. This was a translation of Allgemeine Rechtslehre und Marxismus, which was itself a translation into German of Общая теория права и марксизм (Obshchaia teoriia prava i marksizm).[5] In 1980 a translation from the Russian by the eminent US scholar of Soviet law, Peter B Maggs, appeared.[6] This is the version which appears on the Marxists.org website.[7] As this website points out, the complete footnotes to the General Theory, which do not appear in either translation appeared in J. Hazard (ed.), Soviet Legal Philosophy (1951), Harvard University Press, Cambridge, translated by H. Babb, pp.111-225.[8] In fact both the Einhorn and the Maggs translations omitted many important footnotes. I will return to the significance of this.

These appearances of Pashukanis in English, after so many years, elicited serious reviews, in 1980, from Roger Cotterrell, of the Maggs translation[9]; and in 1981 by Ronnie Warrington[10] of the Einhorn translation, with a reply by Alan Norrie in 1982[11]. The most recent serious exposition of Pashukanis’s theory, by Matthew Dimick, appeared in the 2021 Research Handbook on Law and Marxism.[12]

Neither Kant nor Hegel investigated the “legal form”.

However, in 1977 the Chicago professor Isaac Balbus published “Commodity Form and Legal Form: An Essay on the “Relative Autonomy” of the Law”[13]. He argued that “the logic of the legal form and the logic commodity form are one and the same.”:

,,, the relative autonomy of the legal form from the will of social actors entails at the same time an essential identity or homology between the legal form and the very “cell” of capitalist society, the commodity form.

The legal form … defines distinctions of interest and origin out of political existence, just as the commodity form defines distinctions of use and labor out of economic existence. And, just as the commodity form “replaces” use-value and concrete labor with the abstractions of exchange-value and undifferentiated labor-power, the legal form “replaces” the multiplicity of concrete needs and interests with the abstractions of “will” and “rights,” and the socially differentiated individual with the abstraction of the juridical subject or the legal person

And in a footnote

…Only after “working out” the homology between the commodity form and the legal form did I discover that Pashukanis had developed essentially the same analysis roughly fifty years ago! Almost all subsequent Marxist work on the law is, unfortunately, a regression from the standard established by Pashukanis’s pioneering efforts.

But analysis of the “legal form” is not only to be found in the scholarship inspired by Pashukanis’s appearance in English. In 2005 the Cornell scholar Robert B. Summers published “On Giving Legal Form Its Due. A Study in Legal Theory”[14] – without mentioning Pashukanis, let alone Marx. His position?

Here, I use the word “form” to mean the purposive systematic arrangement of the parts and the whole of a legal phenomenon. I use the phrase “legal phenomenon” to mean any type or sub-type of functional legal unit in a system of law, including an institution such as a legislature or court, a species of law such as a rule, principle, contract or property interest, a methodology such as one for the interpretation of statutes or for the application of case law, and a sanction or a remedy such as imprisonment, or money damages…

Few legal theorists have taken interest in developing a general theory that gives legal form its due in a frontal and systematic fashion. Such a theory must, among other things, differentiate types of legal phenomena, and must differentiate between the formal and the non-formal in legal phenomena.[15]

His main source was the German realist scholar Rudolf von Jhering, who had a profound influence on the American Legal Realist School, especially Karl Llewellyn (1893- 962), and thus on American Critical Legal Studies.[16] Duncan Kennedy, in an article on Lon Fuller, published in 2000 in the Columbia Law Review[17], placing Fuller’s analysis of contract questions in the context of the critique of the 19th century will theory of contracts, and the rise of sociological jurisprudence and legal realism, wrote, in a footnote

“Between 1972 and 1975, I read Rudolf von Jhering’s The Spirit of Roman Law (in French translation) because Fuller had cited it. Jhering’s seemed to me a much better, indeed an unutterably brilliant, take on the issues Fuller discussed, and this greatly reduced my admiration for Fuller. My article downgrades him for this reason.”

So there is discussion concerning “legal form” without reference to Pashukanis.

However, as I show below, Pashukanis referred several times to Von Jhering.

Natural Laws and Human Laws: Marx on Natural Laws

This section draws on my contribution to the Research Handbook on Political Economy and Law.[18]

Marx referred many times to ‘the law of value’, and as has been pointed out, practically never to a ‘labour theory of value’. What kind of a law is the ‘law of value’? In Volume 3 of Capital Marx wrote explicitly that:

Since these latter [individual capitalists] confront one another only as commodity-owners, and everyone seeks to sell his commodity as dearly as possible (apparently even guided in the regulation of production itself solely by his own free will), the inner law enforces itself only through their competition, their mutual pressure upon each other, whereby the deviations are mutually cancelled. Only as an inner law, vis-à-vis the individual agents, as a blind law of Nature, does the law of value exert its influence here and maintain the social equilibrium of production against its accidental fluctuations.^[19]

That is, for Marx the law of value is an ‘inner law’, a law of nature. Individual capitalists believe that they are acting of their own free will, but in reality their activity is subject to the Law of Value, as inexorable and impossible to avoid as the law of gravity or the  laws of motion. The Law of Value expresses the innermost laws of motion of Capital, as what is new and unprecedented in human history. This is one of the points at which Marx demonstrates his debt to Spinoza. Yirmiyahu Yovel, in his Spinoza and Other Heretics,^[20] asserted that

Marx used Spinoza’s thought far more than he admitted. Spinoza was above all a counterbalance and corrective to Hegel, restoring the concept of nature and man as a concrete, natural being from what seemed to Marx his immersion in the lofty and semireligious heights of the Hegelian Geist… Marx’s new philosophy of immanence, though strongly influenced by Hegel and his milieu, goes back to Spinoza in more ways than one. Indeed, Spinoza is almost always present in Marx’s thought. But, we may add, the actual presence of Spinoza in Marx far surpasses his direct mention by name.

Indeed, one of the passages Marx transcribed from Spinoza in 1841, from Chapter IV of the Theological-Political Treatise (TTP), ‘Of the Divine Law’,was as follows:

The word law (lex) in an absolute sense signifies that, in accordance with which, each individual thing, or all things, or all things of the same kind, behave in one and the same fixed and determinate way, depending upon either [vel] natural necessity or [vel] a human decision.^[21]

This paragraph continues (though the continuation was not transcribed by Marx) and explains the first sentence:

A law that depends upon natural necessity is one that necessarily follows from the very nature or definition of a thing. A law that depends on a human decision, which is more properly called a decree (jus), is one that men prescribe to themselves and to others in order to achieve a better and safer life, or for other reasons.

Does this mean that a law of nature, an expression of natural necessity, is equivalent, for Spinoza, to a human decree? Not at all. Marx next transcribed the following passage, two paragraphs lower on the page:

Firstly, in so far as man is a part of nature, he is also part of nature’s power. Hence whatever follows from the necessity of human nature (that is, from nature itself in so far as we understand it to be expressly determined by human nature) results also, albeit necessarily, from the capacity of men. Hence the decreeing of these laws may quite correctly be said to follow from human will, because this depends especially on the power of the human mind in the sense that our mind, so far as it perceives what is true or false, can very clearly be conceived without those decrees, but not without the necessary law of nature as we have just defined it.^[22]

That is, a human decree, and the enforcement of it, are themselves  the expression of the power of nature, and subject to the same iron necessity as everything else in nature. In pronouncing a decree and enforcing it, humans may believe that they are acting of their own free will, but in fact are, as humans, expressing determined and inevitable natural forces.

In Spinoza’s Revolution in Natural Law, Andre Santos Campos^[23] explains that

The fact remains that natural laws for Spinoza are neither mere descriptions of what a thing is in itself nor propositional inferences referring to a priori given data. They are mostly that which is so distinctive to each individual thing that it allows the thing to posit itself as a real individual being.^[24]

Campos continues that

The laws of nature of each individual thing are hence the inscription of a thing’s essence and of everything that follows from it because the thing is. They are the inscription of the thing’s power – and that is the very nature of law (jus), that is, the thing’s natural ‘right-law’.^[25]

Thus Spinoza’s (and, I argue, Marx’s) laws of nature are not explained by any kind of normatively moral natural law theory, but rather a necessitarian deterministic natural law theory. Moreover, these laws cannot be confused with the laws of natural science, which are descriptive of actions and experiences. Campos explains that Spinoza’s laws are inscriptive rather than descriptive.

… inscriptive natural laws are the intrinsically original characteristics that an individual has – and the actions he performs as a follow-up to those characteristics – in order to express self-productive immanent Nature.^[26]

The Law of Value for Marx had, I propose, precisely these characteristics of a Spinozan natural law. It is possible to trace the development but also the consistency of Marx’s understanding of the operation of this Law over the years. In 1859 in the Critique of Political Economy Marx wrote:

David Ricardo, unlike Adam Smith, neatly sets forth the determination of the value of commodities by labour-time, and demonstrates that this law governs even those bourgeois relations of production which apparently contradict it most decisively. Ricardo’s investigations are concerned exclusively with the magnitude of value, and regarding this he is at least aware that the operation of the law depends on definite historical pre-conditions. He says that the determination of value by labour-time applies to “such commodities only as can be increased in quantity by the exertion of human industry, and on the production of which competition operates without restraint.”^[27]

This in fact means that the full development of the law of value presupposes a society in which large-scale industrial production and free competition obtain, in other words modern bourgeois society. For the rest, the bourgeois form of labour is regarded by Ricardo as the eternal natural form of social labour.^[28]

Thus, the Law of Value, which finds expression in the whole of human recorded history most certainly since the agricultural revolution 10,000 years ago, only finds its full development under the rule of Capital. In his 1867 Preface to the first German edition of Capital Volume I, Marx wrote of the ‘value-form, whose fully developed shape is the money-form’. He also wrote of the ‘natural laws of capitalist production… these tendencies working with iron necessity towards inevitable results.’^[29] In 1867, in Chapter 1 of Capital, ‘The Commodity’, Marx wrote that

The general value-form, in which all the products of labour are presented as mere congealed quantities of undifferentiated human labour, shows by its very structure that it is the social expression of the world of commodities. In this way it is made plain that within this world the general human character of labour forms its specific social character.^[30]… in the midst of the accidental and ever-fluctuating exchange relations between the products, the labour-time socially necessary to produce them asserts itself as a regulative law of nature.^[31]

In Chapter 11 of Capital, ‘The Rate and Mass of Surplus-Value’, Marx refers to three laws, all of which are necessary consequences of the Law of Value. First, there is the law that ‘… the supply of labour exploitable by capital is independent of the supply of workers’, to which he added in a foot note

This elementary law appears to be unknown to the vulgar economist, who imagines, like an inverted Archimedes, that in the determination of the market price of labour by supply and demand he has found the fulcrum by means of which he cannot so much move the world, as bring it to a standstill.^[32]

The second law is,

The absolute limit of the average working day – this being by nature always less than 24 hours – sets an absolute limit to the compensation for a reduction of variable capital by a higher rate of surplus-value, or for the decrease of the number of workers exploited by a higher degree of exploitation of labour-power.^[33]

 The third law is as follows:

… the masses of value and of surplus-value produced by different capitals – the value of labour-power being given and its degree of exploitation being equal – vary directly as the amounts of the variable components of these capitals, i.e. the parts which have been turned into living labour-power.^[34]

Marx continues that

This law clearly contradicts all experience based on immediate appearances…. Classical economics holds instinctively to this law, although it has never formulated it, because it is a necessary consequence of the law of value.^[35]

I repeat that this Law, which is at the heart of the operation of Capital, is a thoroughly Spinozist law, the result of which is that humans, believing that they are acting of their own free will, are in fact expressing a determinate necessity.

Marx on Human Laws

Marx had very little to say about law constructed by humans as such.^[36] His attitude to (man-made) law remained consistent throughout his life. In the 1857 Introduction to the Grundrisse, he wrote:

Quite apart from this crude tearing-apart of production and distribution and of their real relationship, it must be apparent from the outset that, no matter how differently distribution may have been arranged in different stages of social development, it must be possible here also, just as with production, to single out common characteristics, and just as possible to confound or to extinguish all historic differences under general human laws. For example, the slave, the serf and the wage labourer all receive a quantity of food which makes it possible for them to exist as slaves, as serfs, as wage labourers. The conqueror who lives from tribute, or the official who lives from taxes… all receive a quota of social production, which is determined by other laws than that of the slave’s, etc.

The two main points which all economists cite under this rubric are: (1) property; (2) its protection by courts, police, etc. To this a very short answer may be given:

…

to 2. Protection of acquisitions etc. When these trivialities are reduced to their real content, they tell more than their preachers know. Namely that every form of production creates its own legal relations, form of government, etc… All the bourgeois economists are aware of is that production can be carried on better under the modern police than e.g. on the principle of might makes right. They forget only that this principle is also a legal relation, and that the right of the stronger prevails in their ‘constitutional republics’ as well, only in another form.^[37]

In the Preface to his A Contribution to the Critique of Political Economy (Zur Kritik der Politischen Oekonomie), published in Berlin in 1859, the text in which his ideas concerning Capital achieved their explicit shape, Marx wrote;

My inquiry led me to the conclusion that neither legal relations nor political forms could be comprehended whether by themselves or on the basis of a so-called general development of the human mind, but that on the contrary they originate in the material conditions of life, the totality of which Hegel, following the example of English and French thinkers of the eighteenth century, embraces within the term “civil society”; that the anatomy of this civil society, however, has to be sought in political economy.^[38]

Much later, in his 1875 Critique of the Gotha Programme, Marx elaborated on this, writing:

Do not the bourgeois assert that the present-day distribution is “fair”? And is it not, in fact, the only “fair” distribution on the basis of the present-day mode of production? Are economic relations regulated by legal conceptions, or do not, on the contrary, legal relations arise out of economic ones? Have not also the socialist sectarians the most varied notions about “fair” distribution?^[39]

Are ”Socialist Law” or “Socialist Legal Theory” desirable or even possible?

In their 1887 polemic Juridical Socialism^[40] (the German title, Juristen-Socialismus, would be better translated as “Lawyers’ Socialism”) Friedrich Engels and Karl Kautsky^[41] explained – and Marx, who died four years earlier, would not have disagreed – how the main battle cry of the bourgeoisie became “equality before the law”, because their struggle had to be based around legalistic demands. “This solidified a world view based on legal rights… at first the proletariat had embraced the world view of legal rights, and sought weapons in it for use against the bourgeoisie.”^[42]

Engels and Kautsky insisted that “Marx… presents no legalistic demands at all in his theoretical work… Legal rights, which always reflect the economic conditions of a specific society, are treated only in a very secondary manner in Marx’s theoretical studies, as opposed to the primary historical topic of situating particular circumstances, means of acquisition, and social classes in specific periods.^[43]”

But they also insisted that socialists would not fail to present certain legalistic demands: “Every struggling class must therefore formulate its demands as legalistic demands within a program… however, no existing socialist party has thought of making a new legal philosophy of its program, and this will not happen in the future.”

Peter Schöttler explained their position as follows:

“… there is indeed no proletarian or socialist legal ideology (just as there can be no socialist philosophy of law), but there are proletarian, or socialist, legal demands, and these are necessary, nay indispensable, if the proletariat wishes to articulate its interests politically in opposition to the bourgeoisie and the bourgeois state. The political class struggle includes making legal demands.”^[44]

In precisely the same sense, Marx and Engels would have had no difficulty in associating themselves with 20^th and 21^st century demands framed within the international law right of peoples to self-determination^[45].

Chapter 10 of Volume 1 of Capital was devoted to “The Working Day”.[46] Three of its 7 sections start with the phrase “the Struggle for a Normal Working Day”. Marx is clear that

… these highly detailed specifications [in the additional Factory Act of 7 June 1844] , which regulate, with military uniformity, the times, the limits and the pauses of work by the stroke of the clock, were by no means a product of the fantasy of Members of parliament. They developed gradually out of circumstances as natural laws of the modern mode of production. Their formulation, official recognition and proclamation by the state were the result of a long class struggle.[47]

The Chapter concludes as follows:

For ‘protection’ against the serpent of their agonies, the workers have to put their heads together and, as a class, compel the passing of a law, and all-powerful social barrier by which they can be prevented from setting themselves and their families into slavery and death by voluntary contract with capital. In the pace of the pompous catalogue of the ‘inalienable rights of man’ there steps the modest Magna Carta of the legally limited working day, which at last makes it clear ‘when the time which the worker sells is ended , and when his own begins. Quantum mutatus ab illo![48]

Marx is not writing about “legal form”, but about the class struggle, in which workers take up legal demands.

Law and legislation  reappear in Part Eight, “So-Called Primitive Accumulation”,  Chapter 27 “The Expropriation of the Agricultural Population from the Land” .[49] Marx describes how between the fifteenth and the sixteenth centuries, “the English working class was precipitated without any transitional stages from it golden age to its iron age.”[50]

And after the restoration of the monarchy in 1660

…the landed proprietors carried out, by legal means, and act of usurpation which was effected everywhere on the Continent without any legal formality. They abolished the feudal tenure of land, i.e. they got rid of all its obligations to the state, ‘indemnified’ the state by imposing taxes on the peasantry and the rest of the people, established for themselves the rights of modern private property in estates to which they had only a feudal title, and finally, passed those laws of settlement which had the same effect on the English labourer, mutatis mutandis, as the edict of the Tartar Boris Godunov had on the Russian peasantry.[51]

 So, Marx explains, “the legal form” is what distinguishes the English usurpation of the peasantry which elsewhere was carried out without such niceties, by force.

What did Pashukanis want to achieve? His intellectual history.

Pashukanis was born in 1891. In 1909 he started to study law in Petersburg, but left Russia for Germany in 1910. He continued his studies at the Ludwig-Maximilians-Universität in Munich, where he specialized in the contemporary philosophy of law, and in political economy. His doctoral dissertation was entitled Statistik der Gesetzwidrigkeit im Arbeitsschutz (Statistics of legal infractions in labour protection). This was not at all, therefore, a work of legal theory, but an indication of his interest in the workers’ movement in Germany.^[52] During World War I, he returned to Russia.

In October 1917, following the Bolshevik seizure of power, Pashukanis worked in the Sushchevsko-Mariynskiy Military Revolutionary Committee in Moscow, and was later elected a member of the Cassation (Appeal) Tribunal attached to the All-Russian Central Executive Committee (VTsIK)^[53], acting as a revolutionary judge.^[54]

From 1920 to 1923 Pashukanis served in the Peoples’ Commissariat for Foreign Affairs as the deputy head of the Economic Law Department. As a legal adviser, he was involved in one of first and most important actions of the young Soviet Union in the field of international law. During this time he worked in the Soviet Russian representation in Berlin, where in due course he took part in the preparation of the Rappalo Treaty with Germany.[55]

It may well be that Pashukanis’s experience as a responsible working diplomatic legal expert, engaged in international negotiation at the highest level, informed his later writing to a much greater extent than did his German-centred theoretical scholarship.

However, as he disclosed rather later, in 1930, it was while in the Berlin in 1921-22, that Pashukanis prepared his General Theory, which was completed in 1923 and was published in 1924. He also published his first scholarly article in 1921.

The Selected Works of Pashukanis published in Russia in 1980^[56] has a Bibliography^[57] of the “Fundamental Works of Pashukanis”; but one work is missing. This was Pashukanis’ first published article, which appeared in 1921, and was entitled “Burzhuazniy yurist o prirode gosudarstvo (A bourgeois jurist on the nature of the state)”.^[58] It appeared in the literary journal Krasnaya Nov (Red Virgin Soil), which was the first Soviet literary “thick” journal, and was published between 1921 and 1941. From 1921 to 1927 it was edited by Aleksandr Voronkov (1884-1937), who was close to Trotsky, agreed with Trotsky’s 1923 Literature and Revolution, did much to encourage new literary talent, and in 1937 was executed for Trotskyism.

The subject of the article was the scholarship of Professor Maurice Hauriou of the University of Toulouse (1856-1929)^[59], whose textbook on Principles of Public Law was published in 1910. Pashukanis did not refer in his 4,000 word article to any other literature. Not least in this regard, the article contrasts strongly with the General Theory, which has many references, including several to German authors. He referred to Marx, but without indicating his source. Most of the article consisted of often sarcastic references to Hauriou’s positivist doctrine. Pashukanis’ concluding paragraph was as follows.^[60]

In one of his speeches Cde Lenin remarked that sincere defenders of capitalism may now be found only among our SRs (Social Revolutionaries) and Mensheviks. In the West they have become extinct. We can see the cause of this. Russia underwent an accelerated course of capitalism and therefore our intelligentsia may bona fide come out in defence of the sublime beginning of democracy and freedom, without sensing that it has been crucified by capitalism. But in order to be a sincere defender of capitalism in the West, where social relations have been able to mature and over-mature, one must sincerely, like Hauriou, assert that the principles of freedom, democracy, individual rights and so on, conceal behind themselves quite simply faire valoir de la propriété!^[61] And such courage is not given to everyone.

There is in fact a connection between Pashukanis’s sole publication before the General Theory, his 1921 article, and the 1924 General Theory itself, although Pashukanis did not refer directly to his earlier work. In fact, Maurice Hauriou was cited three times^[62] in the General Theory, but this time with approbation and the epithet “astute” as in “one of the most astute bourgeois theorists”^[63] and “an astute jurist like Hauriou”.^[64] And there were many references to the German legal scholars whom Pashukanis read in Munich and during his time in Berlin.

However, Pashukanis’ paramount reason for writing the General Theory was not to renew or explain his relationship with Hauriou, but to identify “…law in its general definition, law as a form…”.^[65]  That is, to tackle the question of the nature of law as a materially grounded abstraction. Pashukanis is now best known for his “commodity-form” theory of law, more recently extended to a “commodity-form theory of international law”.^[66]

In the first of several recantations of his work in 1921, published in 1930, Pashukanis wrote the following about the genesis of the General Theory:

It is clear that much which was written in the first years of NEP^[67] deserves criticism and suffers from obvious anachronisms and now and then simply mistakes… But the question is not only that of particular formulations. The question concerns some defects of a general character. This was the overestimation of the role and significance of market relations which was without doubt characteristic of my first work. It is impermissible to hide from view the fact that this book was written at a time when the collective of Marxist legal scholars had not come together. It was written when I was alone, and it could not be exposed to the process of critical re-working. It was written finally, before the publication of Lenin’s notebooks on dialectics and on the works of Marx which were published in the “Archive”. It appeared before the discussions with the “mechanists”, before the discussions in the fields of political economy, literature etc. Therefore it was completely natural, that the book, which was written in 1923, and prepared still earlier in 1920-1921, displays defects, when we look at it from our higher present day theoretical and methodological point of view.^[68]

This concerned Pashukanis’ theoretical work from 1920 to 1923.

Pashukanis became in the next ten years a staunch loyalist of the regime – in my opinion, by conviction rather than any sort of pressure.

In 1931, following the dramatic recantation of his previous views noted above, Pashukanis became the Director of the Institute of Soviet Construction and Law of the Communist Academy. He was effectively the USSR’s director of legal research and legal education. The American scholar John Hazard^[69], who studied under Pashukanis from 1934 to 1937, summarised his effect on legal education, as follows:^[70]

Believing that the state was slowly withering away as socialism came nearer to achievement, Pashukanis advocated the cessation of courses in civil law. He understood civil law to be the regulation of the relations of men under the trading conditions of capitalism, and, as such, no longer of importance, as the remnants of capitalism disappeared.

His influence was so marked that the courses in civil law in the law school were abolished, and to replace them there appeared a course called economic-administrative law, concerning itself with regulation of the relations between state enterprises.^[71]

Following Pashukanis’ fall in 1937, courses on (Soviet) civil law were reintroduced to the syllabus.

By 1932, Pashukanis, who had become editor in chief of the official law journal Soviet State, was able to write a “hallelujah” in response to Stalin’s letter “Some questions on the history of Bolshevism”.^[72] Pashukanis’ major work on international law, Essays in International Law, appeared in 1935^[73].

On 16 November 1936 Pashukanis reached the high point of his career: the Presidium of the Central Executive Committee of the USSR appointed him Deputy Peoples Commissar for Justice of the USSR. In the same year he was deputy chairman of the Drafting Committee for the 1936 “Stalin Constitution”^[74], and the Institute of State and Law proposed him as a candidate for membership of the Academy of Science of the USSR. Also in 1936 he became the chairman of the Academic Council attached to the Peoples Commissariat of Justice of the USSR.

But within a year he was dead, following Pravda’s announcement on 20 January 1937 that he had been found to be an enemy of the people – just two months after he had been named by the regime to supervise the revision of the whole system of Soviet codes of law. On the same day he was arrested. On 4 September 1937 a Military Collegium sentenced him to death.  He was condemned as a member of a ‘band of wreckers’ and “Trotsky-Bukharin fascist agents”. He was posthumously rehabilitated in 1956.

What did Pashukanis want to achieve? The General Theory

As noted above, Pashukanis wrote his General Theory while working as the Soviet government legal adviser in Berlin, in 1921-2.

It is clear to me that he wished to prove that with the proletarian revolution law would cease to exist, and would be replaced by technical administration. That was why he worked out in detail his thesis that developed capitalism required and generated a “legal form”, unique to developed capitalism. While he did not specify a homology between the “commodity form” and the “legal form”, as advocated by Balbus, his conception of the “legal form” was noy a possibility before Marx’s work in the 18^th century.

Furthermore, as Pashukanis himself made clear, he was working in Berlin until 1923, and was not familiar with the theoretical debates and developments within Bolshevism. For this reason, very little Soviet Russian scholarship is cited in the General Theory.

Instead, even in the 3^rd Edition, published in 1929, there are voluminous footnotes, most of which do not appear in the Einhorn (from a German translation) or the Maggs translations into English. Indeed, the great majority of citations are to German scholars, no fewer than 19 footnotes, mostly to German language sources, mostly from the late 19^th and early 20^th century[75], many of them textbooks, the most recent reference being to Kelsen’s 1922  Der soziologische und der juristische Staatsbegriff (The sociological and legal concept of the state).[76]

The English language reception of Pashukanis in the 1970s and 80s was therefore based on incomplete translations.

Pashukanis’s tragedy was that in 1921, while he was still in Berlin, Lenin, conscious of the impossibility of constructing socialism in one country in one beleaguered country, launched the New Economic Policy (NEP), which required laws, in particular civil laws, and courts. Pashukanis maintained his position as to the necessary disappearance of law, the “legal form” of developed capitalism, for as long as he could. Stalin brought the NEP to an end with his Great Break, a few years after Lenin’s death on 21 January 1924. The new Soviet system of Socialism in One Country required more law than ever before. In  his 2014 masterpiece Law and the Making of the Soviet World. The Red Demiurge [77] Scott Newton argued that the Soviet order was a work of law. He drew on Russian-language Soviet statues and regulations, jurisprudence, legal theory, and English-language ‘legal Kremlinology’. On this basis he analysed the central significance of law in the design and operation of Soviet economic, political, and social institutions. He therefore concluded that the USSR was an exemplary, rather than aberrant, case of the uses to which law was put in twentieth-century industrialised societies. No wonder Pashukanis was shot, despite his best efforts at conforming to Stalin’s regime. The continuing relevance of his work in 1921-22 is that it is the only thoroughly serious attempt to formulate a socialist theory of the law, or the “legal form”, despite Marx and Engels having insisted that no such thing was possible or desirable..

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[1] Slavoj Žižek, Sex and the Failed Absolute, Bloomsbury, 2020, p. 212

[2] Peter Cercel “One Hundred Years of Solitude and the Eternal Recurrence of the Legal Form”, review of Cosmin Cercel: Towards A Jurisprudence of State Communism – Law and the Failure of Revolution. (London: Routledge, 2019), Vol 13, No 1 (2023): The Lawyer Quarterly. 96-104, at

https://tlq.ilaw.cas.cz/index.php/tlq/article/viewFile/544/544

[3] Giorgio Agamben Homo Sacer: Sovereign Power and Bare Life (Stanford University Press, 1998)

[4] London, Ink Links, 1978; Pluto Press 1989

[5] Third edition, 1929 Пашуканис Е. Б. Общая теория права и марксизм. Издание 3-е. — М.: Изд-во Коммунистической Академии, 1929 (Communist Academy Publisher), in Russian at https://kritikaprava.org/library/31/obschaya_teoriya_prava_i_marksizm

[6] Pashukanis: Selected Writings on Marxism and Law by Piers Beirne, Robert Sharlet, Peter B. Maggs, Academic Press, London, 1980.

[7] Obshchaia teoriia prava i marksizm: Opyt kritiki osnovnykh iuridicheskikh poniatii (1924), sotsiahsticheskoi akademii, Moscow, 1st edition. From Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London & New York 1980, pp.32-131. Translated by Peter B. Maggs. At https://www.marxists.org/archive/pashukanis/1924/law/index.htm

[8] The complete footnotes to the General Theory have been translated in J. Hazard (ed.), Soviet Legal Philosophy (1951), Harvard University Press, Cambridge, translated by H. Babb, pp.111-225.

[9] British Journal of Law and Society. Vol. 7, No. 2 (Winter, 1980), pp. 317-321

[10] “Pashukanis and the commodity form theory” (1981) 9 International Journal of the Sociology of Law, 1-22

[11] “Pashukanis and the ‘Commodity Form Theory’: A Reply to Warrington”, (1982) 10 International Journal of the Sociology of Law 419-437

[12] Matthew Dimick “Pashukanis’ commodity-form theory of law” in Research Handbook on Law and Marxism

Paul O’Connell and Umut Özsu (eds) Edward Elgar 2021, 115-138

[13] Isaac D. Balbus “Commodity Form and Legal Form: An Essay on the “Relative Autonomy” of the Law” Law & Society Review , Winter, 1977, Vol. 11, No. 3 (Winter, 1977), pp. 571-588

[14] Ratio Juris. Vol. 18 No. 2 June 2005, 129–143

[15] Ibid, pages 129-130

[16] Jhering, Rudolf, von. (1915/1997) 1933. Geist des Römischen Rechts: Auf den Verschiedenen Stufen

Seiner Entwicklung. (The Spirit of Roman Law: At the Different Stages of its Development) Aalen: Scientia. Jhering is best known in English for The Struggle for Law, trans Lalor, J. J.. Union, NJ: Lawbook Exchange reprint, and see Roger Cotterrell “The struggle for law: some dilemmas of cultural legality”, (2008). International Journal of Law in Context, 4(4), 373-384.n  and Bill Bowring “The reception or the lack of it, of the concepts of Rudolf von Jhering in the English speaking world”, at https://bbowring.com/2021/03/20/the-reception-or-the-lack-of-it-of-the-concepts-of-rudolf-von-jhering-in-the-english-speaking-world/

[17] Duncan Kennedy “From the Will Theory to the Principle of Private Autonomy: Lon Fuller’s “Consideration and Form”” (2000) 100(1) Columbia Law Review 94

[18] Bill Bowring “The law of value and the law” in Ugo Mattei and John Haskell (eds) Research Handbook on Political Economy and Law (Cheltenham: Edward Elgar, 2015), 158-176

[19] Karl Marx, Capital: A Critique of Political Economy (first published 1867, Lawrence & Wishart 1984) 880

^[20] Yirmiyahu Yovel, Spinoza and other Heretics: The adventures of Immanence, vol 2 (Princeton UP 1992) 78-103, 78-79

[21]  Karl Marx and Friedrich Engels, Marx-Engels Gesamtausgabe MEGA IV I  (Dietz Verlag, 1976) 248; Benedict de Spinoza, Theological-Political Treatise (Michael Silverthorne tr, Jonathan Israel ed, CUP 2007) 57

[22] cf Marx and Engels (n 56) 248; Spinoza (n 56) 57.

[23] Andre Santos Campos, Spinoza’s Revolution in Natural Law ( Palgrave MacMillan 2012)

[24]ibid.

[25] ibid 75.

[26] ibid.

[27] David Ricardo, On the Principles of Political Economy, and Taxation (3rd edn, John Murray 1821) 3

[28] Karl Marx, ‘Historical Notes on the Analysis of Commodities’ (Marx Engels Archive) available < https://www.marxists.org/archive/marx/works/1859/critique-pol-economy/ch01a.htm> accessed 1 January 2015

[29] Karl Marx, ‘1867 Preface to the first German edition’ in Capital Vol. I  (Marxist Archive) available at   <http://www.marxists.org/archive/marx/works/1867-c1/p1.htm>  accessed on 1 January 2015

[30] Karl Marx, Capital:A Critic of Political Economy, vol 1 (Ben Fowkes tr, Penguin Books 1976) 160.

[31] Marx (n 65) 168.

[32] ibid 419.

[33] ibid 420.

[34] ibid.

[35] ibid.

[36] For a characteristic Soviet presentation of Marx’s ‘theory of law’ see L S Mamut, ‘Theory of Law’ Sovetskoye Gosudarstvo i Pravo (1967) in Csaba Varga (ed) Marxian Legal Theory (New York UP 1993) 3-10.

[37] Karl Marx, Grundrisse (first publish 1800, Martin Nicolaus ed, Penguin Books 1993) 87-88

[38] Karl Marx, ‘Preface to the Critique of Political Economy’ in  (n 37) 262.

[39] Karl Marx, ‘Critique of the Gotha Programme’ The Marxist Archive available at <http://www.marxists.org/archive/marx/works/1875/gotha/ch01.htm  > accessed 29 October 2013.

[40] Friedrich Engels and Karl Kautsky Juridical Socialism 7:2 (1977)  Politics and Society pp.203-220; “Juristen-Socialismus” Die Neue Zeit, 1887, no.2 (Stuttgart), translated by Piers Byrne

[41] The translator, Piers Byrne, explained that this was one of a series of articles confronting reformist tendencies in German Social Democracy, in this case the legalistic demands for social reform made by the Austrian jurist Anton Menger. The original manuscript was prepares by Engels in October 1886, but when he became ill he suggested that the article be completed by the editor of Die Neue Zeit, Karl Kautsky.    See Piers Beirne, “Introduction to ‘Juridical Socialism’” 7:2 (1977) Politics & Society 199-201

[42] Ibid p.204

[43] Ibid p.212

[44] Peter Schöttler “Friedrich Engels and Karl Kautsky as Critics of “Legal Socialism” in Csaba Varga (ed) Marxian Legal Theory (New York: New York University Press, 1993), pp.11-42, at p.28-29

[45] See also Bill Bowring “The Soviets and the Right to Self-Determination of the Colonized: Contradictions of Soviet Diplomacy and Foreign Policy in the Era of Decolonization” in Jochen von Bernstorff and Philipp Dann (eds) The Battle for International Law: South-North Perspectives on the Decolonization Era (Oxford University Press 2019), pp.404-425;  Bill Bowring “Marx, Engels, and Lenin on the Right of Nations (Peoples) to Self-Determination, and Its Impact on International Law” in Paul O’Connell and Umut Özsu (eds) Elgar Handbook on Law and Marxism (Edward Elgar, 2021); and Bil Bowring “Marxist international law methodology?” in Rossana Deplano and Nicholas Tsagourias (eds) Research Methods in International Law A Handbook (Edward Elgar, 2021), pp.162-180

[46] Karl Marx Chapter 10 in Capital. A Critique of Political Economy. Voume 1 Translated by Ben Fowkes. 1990, Penguin Classics, pages 340-416.

[47] Ibid p.394-395

[48] Ibid p.416

[49] Ibid p.877

[50] Ibid p.879

[51] Ibid p. 883-884. The reference is to the Edict  of 1597, by which peasants who had fled from their lords could be pursued for five years and forcibly returned to them when caught.

[52]  Andreas Diers ‘Opfer des ‘Grossen Terrors’: Eine biographische werknotiz zum 75. Todestag von Eugen Paschukanis’ (Victim of the ‘Great Terror’: a biographical note for the 75^th anniversary of the death of Yevgeny Pasukanis), 3 September 2012, at 

https://www.rosalux.de/fileadmin/rls_uploads/pdfs/sonst_publikationen/Paschukanis_Sept_2012.pdf; see also Andreas Harms Warenform und Rechtsform. Zur Rechtstheorie von Eugen Paschukanis  (Commodity form and legal form. On the legal theory of Yevgeny Pashukanis) Freiburg: ça ira Verlag, Neuauflage 2009

[53] These courts were established by the Decree of November 22 (December 5) 1917 “On the Court”: Decree of the Council of People’s Commissars SU 1917-1918, No.4, item 50. English translation in Zigurds L. Zile (ed) Ideas and Forces in Soviet Legal History: A Reader on the Soviet State and Law (Oxford: Oxford University Press, 1992), 95-96

[54] Yevgeniy Pashukanis (1922) “Pervye mesiatsy sushchestvovanii moskovskogo narodnogo suda (The First Months of the Existence of the Moscow People’s Court)” 1922 Nos 44-45 Yezhenedelnik Sovetskoi Iustitsii (Soviet Justice Weekly)15-16; see also Pyotr Stuchka (1918) “Stariy i noviy sud (The Old and New Court)”, English translation at Zile Ibid, 96-98

[55] This section draws from Bill Bowring “Yevgeniy Pashukanis, His Law and Marxism: A General Theory, and the 1922 Treaty of Rapallo between Soviet Russia and Germany” v.19 (2017) Journal of the History of International Law pp.274-295

[56] Yevgeniy Pashukanis Izbranniye proizvedeniya po obshei teorii prava i gosudarstvo (Selected works on the general theory of law and state) (Moscow: “Nauka” Publisher, 1980) – Academy of Science, Institute of State and Law

[57] Ibid, 261-267

[58] Yevgeniy Pashukanis  ‘Burzhuazniy yurist o prirode gosudarstvo (A bourgeois jurist on the nature of the state)’ 3 (1921) Krasnaya Nov (Red Virgin Soil) 223-232, available at http://www.ruthenia.ru/sovlit/j/106.html

[59] For biography see http://www.universalis.fr/encyclopedie/maurice-hauriou/  He was a positivist, influenced by Aquinas, Comte and Bergson.

[60] Pashukanis Bourgeois Jurist 1921 (n.44), 231-232

[61] Enforce property!

[62] Pashukanis General Theory 1983 (n.1), 122, 123, 134

[63] Ibid 123

[64] Ibid 134

[65] Ibid, 68

[66] For a recent exposition and defence of this theory, see China Miéville ‘The Commodity-Form Theory of International Law: An Introduction”’ 17(2) (2004) Leiden Journal of International Law, 271-302, and China Miéville Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill Academic Publishers, 2005)

[67] The New Economic Policy, a partial restoration of capitalist market relations, under state control, was introduced by Lenin in 1921. Despite Lenin’s death in 1924 the success of the policy meant that it continued until sharply reversed by Stalin in 1928. 

[68] Yevgeniy Pashukanis (1930) “Polozheniye na teoreticheskom pravovom fronte (The situation on the theoretical legal front)” 11-12 (1930) Sovetskoye gosudartsvo i revolutsiya prava (Soviet state and revolution of law), 16-49, 26

[69] 1909-1955

[70] John Hazard ‘Housecleaning in Soviet Law’ 1 (1938)  American Quarterly on the Soviet Union pp.5-16, at http://www.unz.org/Pub/AmQSovietUnion-1938apr-00005?View=PDF; and John Hazard ‘Cleansing Soviet International Law of Anti-Marxist Theories’ 32(2) (1938) American Journal of International Law, 244-252

[71] Hazard Housecleaning 1938 (n.70) 13

[72] Ye Pashukanis ‘Pismo tov. Stalina i zadachi teoreticheskovo fronta gosudarstvo i pravo (The letter of comrade Stalin and the tasks of the theoretical front of state and law)’ 1 (1932) Sovetskoe gosudarstvo (Soviet State) 4-48, cited in E. A. Skripilev, ‘Nashemy zhurnalu – 70 let” (Our journal is 70 years old)’ no. 2 (1987)Sovetskoye Gosudarstvo i Pravo (Soviet State and Law) 17.

[73] Ye. Pashukanis, Ocherki po Mezhdunarodnomu Pravu (Essays in International Law) (Moscow: Soviet Legislation, 1935)

[74] John Hazard ‘Memories of Pashukanis’, Foreword to Evgeny Pashukanis, Selected Writings on Marxism and Law (London: Academic Press,1980), 273-301 available at

http://www.marxists.org/archive/pashukanis/biog/memoir.htm 

[75] Some of the  authors concerned are См. Карнер — «Социальные функции права», русск. пер., 1923, стр. 11.; Wundt — «Ethik», S. 1.; Сравн. Simmel — «Einleitung in die Moralwissenschaft».; J. Offner — «Das soziale Rechtsdenken», 1923, стр. 54; A. Ferneck — «Die Rechtswidrigkei», 1903, стр. 11; H. Kelsen — «Der soziologische und der juristische Staatsbegriff», 1922, стр. 96;;Bierling, «Juristische Prinzipienlehr», т. I, стр. 145.; Jellinek, «System der subjektiven öffentlichen Rechte», стр. 13).; Fichte — «Rechtslehre» vom 1812, Leipzig, стр. 10.; О. Gierke — «Geschichte des deutschen Körperschaftsbegriff, Berlin, 1873, стр. 30.; Гирке, цит. соч., стр. 648; Пухта — «Курс римского гражданского права», русск. перев. 1874 г; Гумплович — «Rechtsstaat und Sozialismus»; Гумпловича (см. его Rechtsstaat u. Sozialismus и Geschichte der Staatstheorien); Мэн, «Древнее право». Русск. пер. 1873 г., стр. 40 и 47; Binder «Rechtsnorm und Rechtspflicht», 1912.; Г. С. Мен, Древнее право, перев. Н. Белозерской, 1872., стр. 283. Э. Ферри, Уголовная социология, том II, пер. с пред. Дриля, стр. 37; Иеринг, «Дух римского права», I, стр. 118, русск. перев.’ Г. С. Мен, «Древнее право», 1873 г., стр. 269.; Иеринг — «Дух римского права», I, стр. 259 и след., русск. пер., 1875.; Wilda — «Strafrecht der Germanen», 1842, стр. 219, Спенсер, «Принципы социологии», 1883, стр. 659.;  F v. Listz – «Lehrbuch d. deut. Strafrechts», 1905, § 15.; Kraepelin — «Die Abschaffung des Strafmasses. Stuttgart, 1880, стр. 13); Aschaffenburg — «Das Verbrechen und seine Bekämpfung», 1905 г., стр. 200.;

English translation from German. Some German sources were translated into Russian. :

См. Карнер — «Социальные функции права», русск. per., 1923, str. 11th; Wundt — «Ethik», p. 1.; Сравн. Simmel — «Introduction to Moral Science».; J. Offner — «Social legal thinking», 1923, str. 54; A. Ferneck — «Unlawfulness», 1903, str. 11; H. Kelsen — «The sociological and legal concept of the state», 1922, str. 96; Bierling, «Legal Principles Teaching», т. I, str. 145th; Jellinek, «System of Subjective Public Rights», str. 13); Fichte — «Rechtslehre» from 1812, Leipzig, str. 10th; O. Gierke — «History of the German concept of corporate body”, Berlin, 1873, str. 30th; Гирке, цит. соч., стр. 648; Пухта — «Курс римского гражданского права», русск. perev. 1874 g; Гумплович — “The rule of law and socialism”; Гумпловича (см. его rule of law and socialism и history of state theories); Man, «Drevnee Pravo». Русск. per. 1873 g., str. 40 and 47; Binder «Legal norm and legal obligation», 1912.; G. C. Мен, Древнее право, перев. N. Belozerskoye, 1872., str. 283. E. Ферри, Уголовная социология, том II, пер. с пред. Дриля, стр. 37; Иеринг, «Duh rimskogo prava», I, str. 118, russian. перев.’ Г. C. Мен, «Dревнее право», 1873 g., str. 269th; Иеринг — «Дух римского права», I, str. 259 and след., русск. per., 1875.; Wilda — «Criminal law of the Germans», 1842, str. 219, Спенсер, «Principal sociology», 1883, str. 659.; f v Listz – «Textbook d. german Criminal Law», 1905, § 15.; Kraepelin — «The Abolition of Punishment. Stuttgart, 1880, str. 13); Aschaffenburg — «Crime and its fight», 1905 г., стр. 200th;

[76] H. Kelsen — «Der soziologische und der juristische Staatsbegriff», 1922, стр. 96

[77] See https://www.routledge.com/Law-and-the-Making-of-the-Soviet-World-The-Red-Demiurge/Newton/p/book/9781138211247#

Chapter by Bill Bowring to be published in German in the collection of articles “VDJ – Battle over the law Legal-political struggles in 50 years (from the foundation of VDJ in 1972)“, for the 50th Anniversary of VDJ – VDJ is the Haldane Society’s German sister organisation, Vereinigung Demokratischer Juristinnen und Juristen, https://www.vdj.de/vdj/

I have been asked to contribute to this anniversary collection because of my role as President of the European Lawyers for Democracy and Human Rights (ELDH) for many years now. I am a member of the Haldane Society Socialist Lawyers (Haldane) in England, which is, together with VDJ, a founder member in 1993 (with other national associations) of ELDH. I am Haldane’s International Secretary.

I start with an introduction to Haldane and VDJ. Second, I examine the common history of VDJ, Haldane, and ELDH in the International Association of Democratic Lawyers (IADL). Third, I describe my own introduction to International Law, International Human Rights Law, and the International Law of Armed Conflict on a Mission to Israel and Palestine in 1988. My fourth section describes the birth of ELDH, and its continuing relationship with IADL. Fifth, I turn to the way in which, with Thomas Schmidt as General Secretary, has gone from strength to strength since its birth in1993, and now has members in 22 European countries. Finally, and sixth, I present the conferences which are the high point of ELDH activity, and which take place in many countries and focus of the most important topics for European-wide solidarity.

Haldane and VDJ

Haldane, www.haldane.org, has a relatively young (20 and 30 year olds) leadership, and some 600 members, mostly practising lawyers, in England. Haldane was founded in 1930. In 1980, to mark the Society’s 50th anniversary, Nick Blake (who later became a High Court Judge, and is now retired, as Sir Nicholas Blake) and Harry Rajak (Emeritus Professor of Law at the University of Sussex) wrote “Wigs and Workers”, a history of the Society’s first 50 years.  The Society was named after Lord Haldane, in 1924 the first Labour Party Lord Chancellor (Minister of Justice), and it was the first organisation of lawyers committed to supporting the interests of the Labour Movement.

VDJ, founded in 1972, is much younger than Haldane. Professor Gerhard Stuby, General Secretary of the International Association of Democratic Lawyers (IADL), of which more below, was the first Chair of VDJ. VDJ has always in fact proclaimed its independence from any political party or national government. Professor Stuby, born in 1934, was the author, with Professor Norman Paech, of the Handbook on International Law and Power Politics,one of the most important texts for international legal solidarity, which went into athird edition. When he died, on 24 August 2020, IADL published on its website an account of his life as an “extraordinary lawyer”.[1]

A common history: the IADL

VDJ and Haldane also share an international and internationalist history.

Haldane was a founder member of IADL, on 24 October 1946. IADL was launched by a gathering in Paris of “lawyers who had survived the war against fascism and had participated in the Nuremberg Trials”. Rene Cassin, a drafter of the Universal Declaration of Human Rights, became IADL’s first President.[2]

IADL was financed by subscriptions from the Association of Soviet Lawyers and the lawyers associations of the Central and Eastern European states, by the National Lawyers Guild USA, and by its members in the Global South, including the Associations of American Jurists (AAJ), the Democratic Lawyers of South Africa (NADEL). And their counterparts in India, Vietnam and Japan. Its Western counterpart, the International Commission of Jurists (ICJ), was in part financed by the CIA. The USSR and the Algerian liberation movement, the FLN, paid for the headquarters of the IADL, a building at 263 Avenue Albert in Brussels, with a salaried member of staff, and continued to pay until the collapse of the USSR in 1991.

Haldane was, as I mentioned above, a founder member of IADL, and, as a new member of Haldane, I attended the 40^th anniversary conference of IADL at UNESCO in Paris in December 1986. In that year all countries of the Soviet Block were represented by their official lawyers’ organisation, especially the USSR and the GDR. There were large delegations from India and from the Middle East. I witnessed a noisy clash between the Belgian delegation, which wanted to move away from Cold War rhetoric, and the Arab Lawyers Union, which insisted on the use of the word “imperialism”. 

My introduction to international legal solidarity: Israel and Palestine

My first international task for the IADL took place on 27 June to 3 July 1988, when, with the advocate François Bailly, President of the Belgian Democratic Lawyers (now members of ELDH), I undertook a mission to the Occupied Palestinian Territories in the West Bank and the Gaza Strip.[3] The First Intifada (Uprising) of the Palestinian People commenced later that year, on 7 December 1988.

A particular focus of our mission was the closure by Israel of the In’ash Al-Usra womens centre in Al-Bireh, near Ramallah. This charitable Society, with 152 employees, had helped 34,000 people; 1,300 families each week with money, 123 girls 4-16 years old who lived at the Society; 4,800 women and girls who made embroidery by hand;  and 150 children cared for in a day-care kindergarten.

The Society’s Centre was raided on 8 June 1988 during curfew hours by Israeli troops, shortly before our arrival in the West Bank. The founder and Director of the Society, Mrs Sameeha Khalil, aged 65, was questioned. On 20 June 1988, again during curfew, at 0100 in the morning, Mrs Khalil, was summoned to the Society’s building, where she was served with an order of closure of all parts of the building except the Day Care Centre and Home, until 16 June 1990. The doors of all the money raising parts of the building, workshops and training rooms, and the kindergarten kitchens were welded shut, as we saw with our own eyes. Mrs Khalil was charged with incitement and sedition. The evidence amounted to: an anti-semitic video tape allegedly found in the Society, of which all knowledge by Mrs Khalil or the Society was denied; a box of Palestinian flags dating from 20 years previously; and Mrs Khalil’s openly expressed support for the PLO.

There were two other particularly memorable moments in our visit.

While visiting the refugee camp in Rafah, at the border of the Gaza strip and Egypt, François Bailly, dressed as always in a three piece suit, with waxed moustaches, and me, were standing with a crowd of people on the ruins of a Palestinian home which had been illegally demolished by Israeli forces, as a reprisal for children throwing stones. Suddenly, the crowd vanished, and François and I saw an Israeli tank coming towards us. Without hesitation, François pulled out his Belgian passport, and shouted “In the name of the King of the Belgians, I command you to stop!”. The tank stopped.  The crew must have thought they were hallucinating.

Later, we were visiting Palestinian organisations in Nablus, in the north of the West Bank. We were walking in a crowded street at the top of a hill, surrounded by shoppers, when suddenly we were once more alone. Bullets were flying past us. At the bottom of the hill we saw Israeli soldiers shooting with live rounds towards us (probably not at us). Like everyone else, we dived into a doorway. Later that day, the road back to Jerusalem was blocked, and our driver had to cross farming fields, where at each gate a Palestinian child would tell us if it was safe to proceed.

Not only did our Mission contribute to knowledge of the circumstances leading up to the First Intifada, and build solidarity with organisations such as B’Tselem, the Israeli Information Center for Human Rights in the Occupied Territories[4], and Al-Haq, the independent Palestinian non-governmental human rights organisation based in Ramallah, West Bank;  established in 1979 to protect and promote human rights and the rule of law in the Occupied Palestinian Territory[5]: it had a profound affect on me.

The birth of ELDH

When the Berlin Wall fell in 1989, and the USSR collapsed in 1991, both VDJ and Haldane became increasingly discontented with the policy and outlook of the IADL. They were joined by the French Democratic Lawyers, led by Professor Monique Chemillier-Gendreau. VDJ, which had as noted above, been founded as a German affiliate of IADL (Professor Gerhard Stuby being at the same time VDJ’s founding Chair, and also Secretary General of IADL) gradually grew away from IADL, though it never formally left.

As a result the ELDH was founded on 1 May 1993 in Paris. There were also other founding members, notably the Bulgarian, Italian, Romanian, Swiss and Turkish associations. The largest of the associations which founded ELDH in 1993 is the Progressive Lawyers Alliance, ÇHD, in Turkey, founded in 1974.

There was no complete break with the IADL. Intense discussion at the Annual  Meeting of the ELDH in Sofia, Bulgaria, led to the following insertion in the Statute of ELDH:

“2.2. The objectives of the Association shall be realized through:

c. The development of relations between European lawyers as well as between lawyers of other continents and their organizations, and the development of relations with the INTERNATIONAL ASSOCIATION OF DEMOCRATIC LAWYERS and other national and international organizations which have as their goal the defense of human rights;”[6]

In fact, Haldane and several other ELDH members continue to be affiliates of the IADL, as well as ELDH. Delegations have attended the Congresses of IADL, held every four years.

The XIV Congress of IADL took place in Capetown, South Africa, in 1996, with Nelson Mandela in attendance. The Haldane delegation of 45 lawyers, organised by Keir Starmer, now Leader of the British Labour Party, was the largest single delegation to a large and representative congress. I wrote a full report for Socialist Lawyer, the Haldane magazine, and it is to be found on the IADL website.[7] The Congress worked in four Commissions. Commission Ill, on “International Interdependence” was chaired by Dr. Bilal Hasan Minto of Pakistan, and heard papers by Prof Nario Tanaka of Japan, by me (on “France, Polynesia, Nuclear Testing, the World Court: Law and the Public Conscience’), by Jitendra Sharma of India on the NPT, and by others. All the papers delivered at the Congress and more information are to be found in a volume edited by Lennox Hinds, Professor of Law at Rutgers University in the US, and second president of the National Conference of Black Lawyers.[8] 

The ELDH, from strength to strength

Meanwhile, ELDH, with Thomas Schmidt (VDJ) and me (Haldane), as members of its leadership, although we are now nearly 30 years older, has gone from strength to strength, with members in 22 European countries. ELDH has more or less active associations in Bulgaria, England, Germany, Greece, Italy, Northern Macedonia, Russia, Serbia, Spain (Basque Country and Catalonia), Switzerland, Turkey, and Ukraine. In a recent constitutional amendment, based on the principle of gender equality, ELDH now has co-Presidents (me and Barbara Spinelli, Italy) and co–General Secretaries, (Thomas Schmidt, Germany, and Ceren Uysal, Turkey). Through the initiative of Thomas Schmidt and Jan Buelens (Belgium), ELDH has created an online network European Lawyers for Workers (ELW).

I am particularly proud of the fact that ELDH now has active members in Russia, in the Centre for Social and Labour Rights, and Lawyers for Workers Rights[9], which works closely with the Russian independent trade unions, KTR (Confederation of Labour of Russia)[10]. Yury Varlamov, a Russian member of ELDH’s Executive Committee has been elected the Chair of the Teachers’ Union “Uchitel”.

The ELDH Executive Committee meets online monthly, and ELDH is actively engaged in solidarity work in Europe and beyond.

A particular focus of ELDH’s work in the past decade has been solidarity with our persecuted and imprisoned colleagues in Turkey, through our large member associations, ÇHD (Progressive Lawyers) and ÖHD (Lawyers for Freedom). ELDH members from several countries have taken part in trial observations and prison visits in Turkey, and have attended conferences and taken part in protests. Thomas Schmidt has led solidarity work with the self-determination struggles of the Sahrawis in Western Sahara. ELDH has increasingly participated in solidarity with Basques and Catalans, investigating the transfer of prisoners in the Basque Country, observing the trials of Catalan politicians, and taking part in solidarity meetings in London and Barcelona. A recent focus at the time of writing has been activity, at the invitation of Sinn Fein, in solidarity on a number of issues relating to Northern Ireland. An ELDH delegation took part in COP26 in Glasgow in 2021 and there is an important commitment to Climate Justice.

The range and depth of ELDH engagement in international solidarity can be shown in recent activity. Interventions in the past year have included the Day of the Endangered Lawyer, in many countries, focusing on 24 January 2022 on Colombia[11]; a conference on 28-29 October 2021 on Labour Rights and the Digital Transition, which  ELW helped organise[12]; the first International Fair Trial Day in 2021 and Ebru Timtik Award – she died in a hunger strike in protest against the absence of a fair trial in Turkey[13].

ELDH has published Statements on “Catalangate” on 25 April 2022[14]; on the Western Sahara Crisis, on 9 April 2022[15]; against the banning of the Turkish HDP, on 4 April 2022[16]; on the failure of the United Kingdom to investigate and prosecute murders in Northern Ireland, on 25 March 2022[17]; on the Russian invasion of Ukraine, on 5 March 2022[18]; and many more, at a similar tempo.

ELDH conferences over the years

Until the Covid 19 Pandemic the ELDH Executive Committee, or EXCOMM, has met twice a year each time in a different European city, and attended by comrades and colleagues from all over Europe. These meetings have always included a dinner hosted by ELDH, and often a conference has taken place.

These conferences are the highpoint of ELDH activity.

ELDH’s General Secretary, Thomas Schmidt is a trade union lawyer, active with the German Union Ver Di, and has been instrumental in founding the European Lawyers for Workers (ELW). On 16-17 October 2009 ELDH together with the European Democratic Lawyers (AED/EDL) and the Progress Lawyers of Belgium, organised at the Maison du Barreau in Paris an International Conference “The Evolution of  Labour Law in Europe under the Pressure of the (Neo)Liberal Economy”. There was a splendid line-up of authoritative speakers from several European countries.

My own research interest, with many publications, concerns the history of the right of nations, then peoples, to self-determination. The struggle for self-determination started with Marx and Engels in the second half of the 19^th century, fighting for the independence of Poland from the Russian Empire, and Ireland from the British Empire. Lenin, in the period leading up to WWI, theorised the right, and after the Russian Revolution, put it into practice with the break-up of the Russian Empire, independence for Finland, Poland and the three Baltic states. He enshrined it in the first constitution of the USSR, with a right of Union Republics to secede, and a federative structure. Lenin’s last struggle with Stalin concerned Lenin’s support for independence for Georgia, even under Menshevik government, opposed by Stalin, denounced by Lenin as a “Great Russian Chauvinist”. All reviled and denounced by the Russian imperialist Vladimir Putin, and exemplified in the colonial war in Chechnya from 1999, the invasion of Georgia in 2008, the annexation of Crimea and support for rebels in the Donbas in 2014, and the murderous invasion of Ukraine in February 2022.

For many years I have been active in solidarity against the continuing repression of Irish nationalism by Britain. Not so many years after Ireland’s bloody war of independence from Britain  in 1919 to 1921, there was a return to terrible violence from 1969, with the occupation of Northern Ireland by British troops, and the massacre of Irish civilians by British paratroopers in Bloody Sunday, on 30 January 1972.

With my colleague Professor Colm Campbell I played a key role in the foundation of the Transitional Justice Institute (TJI) at Ulster University, in 2003. After three years hard work TJI together with ELDH organised a splendid conference “Peoples in Motion: Self-Determination and Secession”. This took place on Saturday 5 June 2010 at Ulster University. The speakers included Urko Aiartza Azurtza (Basque Country);  Prof. Bill Bowring (London); Prof. Christine Bell (TJI, Ulster); Prof. Colm Campbell (TJI, Ulster); Dr Catriona Drew (SOAS, London); Dr Haluk Gerger (Turkey); Richard Harvey (Barrister, London); Prof. Hassan Jouni (Lebanon); Prof. Hèctor Lopez Bofill (Catalonia); Dr Fabio Marcelli (ISGI, Italy); Prof. Fionnuala Ni Aolain (TJI, Ulster); Dr Ephraim Nimni (QUB, Belfast, a Jewish Anti-Zionist and Pro-Palestinian); Prof. Norman Paech (Germany); and a speaker from Western Sahara. The programme and some of the papers can be found on the ELDH website, as well as a link to an article in the German newspaper Junge Welt.[19]

On the Sunday Professor Campbell organised a Political Tour for Speakers and Delegates. :  We were guided up the Falls Road, in a Nationalist district, where Irish Tricolour flags and Palestinian flags fly, and there are rebel murals, by the Republican ex-prisoner group “Coiste na nIarchimi”. Our guide had spent some years in prison for shooting British soldiers during the armed conflict from 1969 to 1998. There is still a high wall separating the nationalist and loyalist districts, but a gate between them is now open, and we were guided down the Loyalist Shankill Road, to see the Shankill Road murals, by a former prisoner of the Loyalist ex-prisoner group “EPIC”. We saw not only Union Jacks and Ulster terrorist flags, but many Israeli flags.

This exciting conference was an important contribution to the ongoing Peace Process in Northern Ireland. This was especially since in the Good Friday Agreement of 1998 the UK Government for the first time explicitly recognised the “Right of the People of the Island of Ireland to Self-Determination”. This means that once there is a majority in Northern Ireland for unifications with the Republic, the UK government will not stand in the way.

Also in 2010, on 12-13 November 2010, ELDH was hosted by our members the Bulgarian Union of Lawyers, for an international conference in Sofia “After the Treaty of  Lisbon  – European Union Closer to the Citizens?”. We had the support of the Representation of the European Commission in Bulgaria. Among the speakers were: Alexandar Arabadjev (Judge at the European Court of Justice, Luxemburg),  my colleague from Birkbeck, Prof. Michelle Everson (she is German, from the Wuppertal), Christo Christev (Bulgaria, Assistant),  and Prof. Andreas Fisahn, from Bielefeld, Germany.

On 21 May 2011, ELDH and our Greek colleagues “Alternative Intervention of Athens Lawyers” organised a conference at the Athens Bar Association Conference Hall, in Athens “The Legal Impact of the European  “Debt” Crisis. Prof. Dr. Andreas Fisahn again participated. Papers are to be found on the ELDH website.[20]

Also in 2011, we moved from Athens to Genoa in Italy, for “Ten Years of Attacks on  Fundamental  Rights – The Role of  Lawyers”. Speakers included Haidi Giuliani (mother of Carlo Giuliani, killed 10 years previously by the police at the Anti-G8-demonstration in Genoa). There was also a Round Table “The evolution of repression against social movements and the response of lawyers in different countries”, with speakers including Sönke Hilbrans, Berlin (Republikanischer Anwältinnen- und Anwälteverein, RAV).

In February 2012 Haldane, with ELDH and Amnesty International, organised a large conference in London in the Amnesty International Human Rights Action Centre, on “Defending Human Rights Defenders”.  The background was that post 9/11 and in an age where States continually seek to control their citizens and curtail any challenge to their authority, the challenges faced by those working on behalf of vulnerable people are escalating. The conference focused on protecting those activists who risk their lives for their commitment to social justice and who often face attacks from the very government who should be protecting them and further their objectives. Six delegations of human rights defenders from some of the most challenging civil societies around the world were invited: Colombia, Palestine, the Philippines, Swaziland, Turkey, and the Caucasus region.

Every year the VDJ awards the Hans Litten Prize, in memory of the heroic anti-Nazi lawyer, who cross-examined Hitler for three hours, and died in Dachau concentration camp in 1938. 15 September 2012, held in the Literaturhaus, Fankfurt (Main), was also the occasion of the 40^th anniversary of the VDJ.

The prize was awarded to the fearless English solicitor and human rights activist Gareth Peirce, now 82 years of age and still going strong. She has worked on a number of high-profile cases involving allegations of human rights violations, especially in relation to the armed conflict in northern Ireland. Her work with Gerry Conlon and the “Guildford Four” – wrongly convicted of bombings carried out by the Provisional Irish Republican Army – was chronicled in the film “In the Name of the Father” (1993), in which she was portrayed by Emma Thompson.

In April 2013 I was invited to speak at a big, and unforgettable, conference in Bremen, organised by IALANA with ELDH and VDJ, with many other associations, on “Quo vadis NATO? – Challenges for democracy and law”. German speakers included Otto Jäckel and Prof. Dr. Andreas Fischer-Lescano, and also Dr. Hans-Christof Graf von Sponeck (Müllheim), Prof. Reinhard Merkel (Uni Hamburg), and Prof. Dr. Norman Paech (Universität Hamburg).

For many years I have been a lecturer in the Summer School on “EU and Democracy” organised by the Universities of Bologna, Belgrade, and Johns Hopkins University in the USA, at Herceg Novi in the Gulf of Kotor in Montenegro. My contacts helped to organise a conference in Belgrade at the ”Centre for Cultural Decontamination”, a centre of opposition to Milosevic, on 6 June 2014. The conference was entitled “Human Rights and Democracy in the context of EU Enlargement – Western Balkan Perspectives”, and was organised by ELDH and Lawyers for Democracy, with support from YUCOM, the Lawyers Committee for Human Rights. There were speakers from Bosnia and Herzegovina, Bulgaria, Croatia, England, Germany, Greece, Italy, Macedonia, Montenegro, Serbia, Slovenia, and Turkey.

The reader will have noticed that women’s rights had been somewhat neglected in the ELDH’s conferences, and on 28-29 November 2014 the Haldane Society and Haldane Feminist Lawyers, with ELDH, organised at South Bank University in London a large conference “Women Fighting Back: International and Legal Perspectives”. There were two magnificent keynote speakers, Prof. Rashida Manjoo (South Africa), UN Special Rapporteur on Violence against Women (2009-2015), and Angela Davis (USA), Distinguished Professor Emerita in the History of Consciousness and Feminist Studies Departments at the University of California. Founding member of Critical Resistance. International panel discussions focused on: “Migrant and Refugee Women”; “Violence against Women”; “Women in conflict and peace”; “The State and Women’s Bodies; and Women in work”.

In November 2016 ELDH supported a conference convened by IADL and by the Portuguese Association of Democratic Jurists (PADJ), at the University of Lisbon in Portugal, celebrating the 50th anniversary of the adoption by the General Assembly of the United Nations of the International Covenant on Social. Economic and Cultural Rights and of the International Covenant on Civil and Political Rights, “The International Covenants on Human Rights (ICESCR and ICCPR) adopted by the UN on 16 December 1966: historical significance; political and legal impact; and fortunes”.

The new circumstances in Turkey since the failed coup in 2016, and the State of Emergency declared by President Erdogan, were the background for a continuing series of conferences in solidarity with our Turkish colleagues. On 14-15 January 2017, together with my colleague Pascale Taelman, the President of EDL-AED, I opened the large conference, at which many Bar Associations of Turkey were represented, “The judicial system under the state of emergency in Turkey”.

Sessions focused on “The rights, duties and the repression faced by Bar Associations and their members under State of Emergency”, “Under the State of Emergency: The guarantees for the independence, impartiality of Judges”, “Being a lawyer under the State of Emergency”, “The legislative prerogative under the state of emergency and parliamentary immunity”, and “Practices of Anti-Terror, State of Emergency and State of Siege in Turkey and in the World”. The conference was supported by IADL, by MEDEL, NRV Neue Richtervereinigung (New Judges Organisation), IDHAE World Observatory for Defense Rights and Attacks Against Lawyers, Barcelona Bar Association, Padova Bar Association, and Palermo Bar Association; by the Adana, Adıyaman, Ağrı, Ankara, Antalya, Batman, Bingöl, Bitlis, Diyarbakır, Hakkari, Muş, Siirt, Şanlıurfa, Şırnak, Tunceli, Van, Bursa, Iğdır, Kars-Ardahan, and Mardin Bar Associations; and by Democratic Judges Associations, Syndicat of Judges, Lawyers and Human Rights Defenders Without Borders in Turkey, and the Association of Forensic Science Experts.

ELDH did not forget about workers’ rights. On 12-13 May 2017 the Italian trade union CGIL, together with ELDH and ELW organised a conference in Florence, Italy, on “Social Dumping” in Europe “Sozial-Dumping und aktuelle Herausforderungen für das Arbeitsrecht in Europa – Die Initiative zurückgewinnen!”

Meanwhile, we strengthened our activities in post-coup Turkey.

On 22-24 September 2017 we returned to Turkey to the first of a series of conferences by the second Turkish member of ELDH, ÖHD, Lawyers for Freedom, under the auspices of their International Human Rights Academy of the Aegean (IHRAA), at the beautiful Nesin Maths and Philosophy Village at Şirince, in the mountains near Izmir. The Autumn Workshop of 2017 is one of these activities of the IHRAA. “Academic Freedom” was chosen as the topic of this year. Turkish academics had been faced with all types of oppression during 2017. Most of the speakers of the workshop were among those who lost their positions in the universities and other institutions.

Brexit, the nationalist and xenophobic movement, supported by just over half of those who voted, to take the United Kingdom out of the European Union, which it joined in 1972, has been a seismic shock to the whole continent. Haldane was proud to host with ELDH and the Institute of Employment Rights, on 11 November 2017, at the headquarters of Unite, the second largest trade union in the UK (with 1.4 million members), which also hosted the conference, an international conference “European Union, Brexit – the future of workers’ rights”.  

There were four sessions, with speakers from England, France, Germany, Italy, and a trade union lawyer from Russia on a recent victory in the Russian courts, in a case concerning discrimination against Aeroflot cabin crew. The sessions were:  1) “The Future of Trade Union Rights, social rights (collective labour law, for a social Europe instead of a “social pillar”); 2) How to create more security for workers  (concepts on national and European level for individual labour law for domestic and migrant workers); 3) How to defend the rights of refugees and migrants. The impact of Brexit and EU policy.; and 4) European Democracy and human rights – between (Br)Exit and the rule of exception (How to develop European Democracy, how to fight non-democratic developments in EU states).

Speakers from Germany included: Klaus Lörcher, Germany, former ETUC legal advisor, former Legal Secretary of the Civil Service Tribunal of the European Union: “The role of the European Social Charter for the protection of (migrant) workers‘ rights, in particular after Brexit”; Karl Kopp, Director of European Affairs, PRO ASYL, Frankfurt/Main: Perspectives for the defence of Human Rights for Refugees in Europe. “The impact of Brexit”; and Prof. Andreas Fisahn, Bielefeld: “The lack of democracy and the future of the union”. There were speakers for and against Brexit.

On 15-16 March 2018, the Permanent Peoples’ Tribunal on Turkey and Kurds, took place in Paris. This session of the PPT was proposed by the IADL, the ELDH, Mafdad, an organization based in Germany of Kurdish and German Lawyers, and the Kurdish Institute of Brussels. The judges included Prof Norman Paech. The Belgian advocate, Jan Fermon, a member of ELDH, served as Prosecutor. I was the first witness, on the question of self-determination for the Kurds. The Judgment was delivered at the European Parliament in Brussels on 24 May 2018, and is a very significant act of solidarity with the Kurds.

ELDH returned to Turkey on 7-9 September 2018 for the well attended conference at the Istanbul Bar Association “The normalization of the state of emergency and the situation of judiciary in Turkey”, organised by a number of Turkish Bar associations, and by the Association of Democratic Judiciary – Syndicat of Judges; European Democratic Lawyers – AED; ELDH; the Day for Endangered Lawyers Foundation; IADL; and Consiglio Nazionale Forense.

On 20 October 2018 this was followed by a conference, sponsored by ELDH, in Berlin: “25 Jahre PKK-Verbot – 25 Jahre Repression und Demokratieabbau im Dienste der deutschen Außenpolitik”.

The Second International Human Rights Academy of the Aegean (IHRAA), took place at the Nesin Maths Village, Şirince, Izmir, Turkey, on 2-4 November 2018, with the theme: “International Human Rights Regime in Crisis”. It was organised by the Platform of Lawyers for Freedom ÖHP; IADL; ELDH; and the Solidarity Academy of Izmir. I spoke, with speakers from Catalonia, England, India, and Japan.

The Second Conference of Mediterranean Lawyers took place in Naples on 19 May 2019, organised by the Italian Association of Democratic Lawyers, and supported by ELDH and IADL. The theme was “Self-determination, human rights and migration”. The Conference heard lawyers from Catalonia,  Greece, Iraq, Italy, the Kurdish People, Lebanon, Morocco, Palestine, Spain, Syria, Tunisia, Turkey, and Western Sahara; Luca Casarini, Head of Mission ship “Mediterraneo”; Laura Marmorale, Counsellor for Migration, Naples Municipality; with a conclusion from the Italian lawyer Michela Arricale.

The Third International Human Rights Academy of the Aegean (IHRAA), took place at the Nesin Maths Village, Şirince, Izmir, Turkey, on 18-20 October 2019, with the theme “Law and Human Rights in Oppressive Regimes”. I spoke, together with human rights lawyers from several countries.

On 23 April 2020 Haldane presented, with the support of ELDH and IADL, an online, Zoom,  conference “Persecution of Lawyers in India: building a network of international solidarity”. The speakers were: Indira Jaising – Senior Counsel, Supreme Court of India. Lawyers‘ Collective; Mihir Desai – Senior Counsel and defence lawyer, High Court of Mumbai. Human Rights Law Network; Professor Jagmohan Singh – Association for Protection of Democratic Rights, Punjab. This brilliant conference was organised and chaired by Professor Radha D’Souza, University of Westminster, London.

Haldane, with the support of ELDH, organised an online conference with the title “Hostile Environments” on 24 October 2020. The well-attended conference brought together activists, academics and lawyers joining in the fight for migrant and climate justice, in solidarity against the racist and classist systems standing in their way. There were four panels: 1) “Yarl’s Wood: learning the lessons from a history of resistance”; 2) “Unlawful pushbacks in the Mediterranean and English Channel”; 3) Climate Justice and Migration”; and 4) Organising to win: what’s the role of legal sector workers?”.

On 5 April 2021 many lawyers’ organisations including ELDH supported the “International Memorial Event for Ebru Timtik: A life dedicated to the struggle”. On the Day of Lawyers (Turkey), the international legal community gathered together to commemorate Ebru Timtik who passed away after a 238-days hunger strike with the demand of a fair trial for all people who are suffering under the ongoing injustice in Turkey. “Ebru Timtik will never be forgotten and as lawyers, we will never stop fighting for the right to a fair trial.”

Worker rights were again the focus of the conference held in Brussels and online on 28-29 October 2021 “Labour rights & the digital transition”, organized by the ETUI in cooperation with the European Lawyers for Workers Network (ELW Network), and ELDH. The conference was opened by Thomas Schmidt, and the sessions were: 1) “Bringing the Algorithms to Court”, moderated by Ruediger Helm (Lawyer, ELW); “The Yodel case and its implications for platform workers’ rights”, Lord John Hendy QC (Barrister, UK); “Defending collective rights of platform workers in courts”, Carlo De Marchis (Lawyer, Italy); “The contribution of the GDPR to protect platform workers’ rights”, Anton Ekker (Lawyer, The Netherlands); “Socializing digital work via the courts?” Antonio Aloisi (Assistant Professor, IE Law School); 2) “Collective Rights in the Digital Economy”, moderated by Aline Hoffmann (Head of Unit, Europeanisation of Industrial relations, ETUI); “Protecting platform workers’ rights in the digital economy”, Silvia Simoncini (National secretary NidiL CGIL); “Raising activism among platform workers”, Martin Willems (United Freelancers, acv-csc); “Collective bargaining to address negative impact of labour market monopsony”, Séverine Picard (Progressive Policies); “Unions’ strategy to contrast the market power of digital platform”, Annika Flaten (Director Commerce, UNI Europa)

Conclusion

In conclusion, I always insist that lawyers are not and cannot be a revolutionary vanguard, and law for the most part is not emancipatory. But the lawyers of VDJ, in its 50 years of existence, and Haldane, for nearly 90 years, and ELDH since 1993, with our many colleagues in 22 countries, have had the privilege of putting their skills at the service of the labour movement, and of democratic and human rights struggles internationally. We may well have made some difference.

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[1] https://iadllaw.org/2020/10/iadl-mourns-gerhard-stuby/

[2] https://iadllaw.org/history/

[3] See Bill Bowring “Zionist Repression in the Occupied Territories” The Marxist Monthly v.1, n.7 (1988) p.18-26; and our report at https://primarysources.brillonline.com/browse/human-rights-documents-online/report-of-the-mission-of-enquiry-to-the-occupied-territories-of-the-west-bank-and-the-gaza-strip-francois-bailly-bill-bowring-27-june-to-3-july-1988-24-pp;hrdhrd01380160, behind a pay-wall

[4] https://www.btselem.org/about_btselem

[5] https://www.alhaq.org/about-alhaq/7136.html

[6] https://eldh.eu/en/ueber-ejdm/satzung/

[7] https://iadllaw.org/1996/04/1996-haldane-society-report-from-cape-town-congress-of-the-iadl/

[8] https://bbowring.com/2022/04/29/challenges-for-law-and-lawyers-in-the-next-millenium-democracy-in-domestic-and-international-law-final-report-of-the-xiv-congress-of-the-international-association-of-democratic-lawyers-capetown-so/

[9] http://trudprava.ru/

[10] http://ktr.su/en/

[11] https://eldh.eu/2022/01/day-of-the-endangered-lawyer-2022-events-in-solidarity-with-endangered-lawyers-in-colombia/

[12] https://eldh.eu/en/2021/10/save-the-date-labour-rights-the-digital-transition-28-29-october-2021/

[13] https://eldh.eu/en/2021/05/agenda-of-the-1st-international-fair-trial-day-and-ebru-timtik-award-2/

[14] https://eldh.eu/en/2022/04/eldhs-deep-concern-at-catalangate-illegal-surveillance-of-catalans/

[15] https://eldh.eu/en/2022/04/western-sahara-crisis-a-solution-must-be-based-on-international-law/

[16] https://eldh.eu/en/2022/04/statement-against-the-banning-of-the-peoples-democratic-party-hdp/

[17] https://eldh.eu/en/2022/03/failure-of-the-united-kingdom-to-investigate-and-prosecute-murders/

[18] https://eldh.eu/2022/03/eldh-statement-on-the-russian-invasion-of-ukraine/

[19] https://eldh.eu/2010/05/peoples-in-motion/

[20] https://eldh.eu/wp-content/uploads/2018/09/Documentation_-_conference_Legal_Impact_of_Debt_Crisis_-_21st_May_2011_-_Athens.pdf

Includes chapter by Bill Bowring “France, Polynesia, Nuclear Testing, the World Court: Law and the Public Conscience”, and many other papers.

Russia’s war on Ukraine

Socialist Lawyer No. 89, May 2022

Bill Bowring, International Secretary, Haldane Society of Socialist Lawyers; Professor of Law, Birkbeck College, University of London

At the time of writing, it is Day 45 of Putin’s illegal invasion of Ukraine.

In what follows I am careful not to refer to “Russia”, especially since so many Russians are opposed to the war, but to the Kremlin, the Russian regime, and in this case to Putin. The Russian invasion of Ukraine since 24 February is Putin’s disastrous adventure.

The legal characterisation of the war is straightforward. Putin’s invasion of 24 February is a flagrant violation of the UN Charter, of the sovereignty of Ukraine and of the Charter’s Article 2(4) prohibition on the use of force “against the territorial integrity or political independence of another state, or in any other manner inconsistent with the Purposes of the United Nations.”

Russia cannot claim that it is acting in self-defence, or that it has the authorisation of the UN Security Council. Even the apparent claim of humanitarian intervention, to prevent genocide in the separatist regions of DNR and LNR, has seemingly been abandoned in its recent submission to the ICJ in the genocide case, Ukraine v Russia.

In his speech of 21 February 2022 to his Security Council, forcing them each to share responsibility for the invasion, Putin hardly mentioned NATO.

He said (in the official Kremlin translation) “ …modern Ukraine was entirely created by Russia or, to be more precise, by Bolshevik, Communist Russia. This process started practically right after the 1917 revolution, and Lenin and his associates did it in a way that was extremely harsh on Russia – by separating, severing what is historically Russian land. Nobody asked the millions of people living there what they thought… Lenin’s ideas of what amounted in essence to a confederative state arrangement and a slogan about the right of nations to self-determination, up to secession, were laid in the foundation of Soviet statehood. Initially they were confirmed in the Declaration on the Formation of the USSR in 1922, and later on, after Lenin’s death, were enshrined in the 1924 Soviet Constitution.”

So in Putin’s view Ukraine has no right to exist. He denounces Lenin’s “Right of Nations To Self-Determination”. On this issue Haldane stands with Lenin. See the Special Issue of Socialist Lawyer No.53, October 2009, “The Right to Self-Determination”. You can find this easily on the Haldane web-site.

Putin is also horrified by the fact that Soviet Ukraine, as a Union Republic of the USSR,  became a founding member of the UN in 1945 (as did Belarus) and had its own seat in the General Assembly. In 1991 it became an independent sovereign state, with the collapse of the USSR. In 1996 in its first independent Constitution it created the Autonomous Republic of Crimea with its own Supreme Soviet and privileges for the Russian speaking inhabitants. From that date there was no movement to rejoin Russia. I first visited Donetsk and Crimea in 1992, and many times thereafter.

By the 1997 Partition Treaty between Russia and  Ukraine, Ukraine agreed to lease Sevastopol to Russia for 20 years until 2017. The treaty also allowed Russia to maintain up to 25,000 troops, 24 artillery systems, 132 armoured vehicles, and 22 military planes on the Crimean Peninsula. Russia never disputed that Crimea was an integral part of Ukraine, until the Russian Annexation in 2014, when Russia abrogated the Treaty. Those forces carried out the illegal annexation on 2014. In international law Crimea remains part of Ukraine.

President Yanukovich intended to enter into the Association Agreement with the EU, was prevented by Russian pressure, and then fled the country during the Maidan revolution, having stolen enormous sums from Ukraine. So Russia invaded Ukraine from 2014, and starting arming the “separatists” in Donetsk and Luhansk. From 2014 until very recently, Russia insisted that Donetsk and Luhansk remained part of Ukraine, and wanted special status for them. For myself, I can’t see why they should not have the status which Crimea had before 2014, within Ukraine.

In 2014 Ukraine had no serious army. Now it has a professional army with experience fighting Russia proxies, armed by Russia, since 2014. It has every legal right to seek support, weapons etc, in its self-defence.

The so-called “anti-imperialist” left, in reality apologists for Putin, insist that the present war is all the fault of NATO. However,  NATO became irrelevant in 1991, when the Warsaw Pact, its opposite number, was dissolved. In 1999 NATO acted illegally and violated its own Charter (which specified that it was a purely defensive organisation) when it bombed Serbia. Trump wanted to scrap it. Now, like a zombie, it has returned – thanks to Putin..    

There is no prospect of NATO accepting Ukraine as a member in the near future, and President Zelensky says it does not want to join, although as a sovereign state Ukraine is entitled to invite the forces of any state of organisation. That is the basis on which the presence of Russian forces in Syria is lawful in international law.                            

Ukraine is a highly corrupt state, dominated by warring oligarchs – Poroshenko, Kolomoisky, Firtash. Zelensky, a former TV comedian, was said to be the cat’s paw of Kolomoisky. But it does have democratic elections and a free media. Having failed to keep his promise to deal with corruption, Zelensky was increasingly unpopular before 24 February. Putin saved him.

Russia is a kleptocracy, a regime of thieving under secret service rule. There are no free elections, and the last independent media have been closed. The Kremlin regime is increasingly repressive, and Russia suffers from a rapidly diminishing population, an HIV/AIDS epidemic, rabid Covid, and high inflation.

The working class of both countries is getting it in the neck from both regimes, Ukrainian and Russian, and will be the losers in both countries if the war since 2014 is intensified. We in Haldane and ELDH stand with the workers and with the free trade unions of both countries. ELDH has member associations in both Ukraine and Russia.

And Putin already has three major achievements.

First, he has brought NATO back to life. With Finland and Sweden considering membership, Russia will soon have an even longer border with NATO.

Second, despite his having secured Brexit, with the help of his friend and admirer Nigel Farage, and large sums of Russian money, he has succeeded in uniting the EU, even his friend Victor Orban in Hungary.

Third, as a result of Putin’s action, Germany has changed its firmly held policies of so many years.

Parliamentary Assembly of the Council of Europe: Committee on Legal Affairs and Human Rights; Meeting to be held in a hybrid manner, on 4 April 2022 from 9.30am – 12 noon  and from 2.30pm – 5pm, CEST (Central European Summer Time)

Legal and human rights aspects of the aggression by the Russian Federation against Ukraine

Intervention by Professor Bill Bowring, Birkbeck College, University of London, Barrister

In what follows I am careful not to refer to “Russia”, especially since so many Russians are opposed to the war, but to the Kremlin, the Russian regime, and in this case to Putin, whose disastrous adventure the Russian invasion of Ukraine since 24 February is.

The legal characterisation of the war is straightforward. Putin’s invasion of 24 February is a flagrant violation of the UN Charter, of the sovereignty of Ukraine and of the Article 2(4) prohibition on the use of force “against the territorial integrity or political independence of another state, or in any other manner inconsistent with the Purposes of the United Nations.”

Putin has made it clear that in his view Ukraine is an artificial nation, created by V. I. Lenin, which has no right to exist. Putin is also enraged by the fact that the Ukrainian SSR had the status of a Union Republic, with the right to secede, in the USSR, and was a founder member of the UN in 1945 with its own seat (with Belarus) on the UN General Assembly. It became an independent sovereign state automatically in December 1991.

Russia cannot claim that it is acting in self-defence, or that it has the authorisation of the UN Security Council. Even the apparent claim of humanitarian intervention, to prevent genocide in the separatist regions of DNR and LNR, has seemingly been abandoned in its recent submission to the ICJ in the Ukraine v Russia, genocide case.

Less than a month after Putin’s invasion of Ukraine, Russia ceased to be a member of the Council of Europe. On 16 March 2022 the Committee of Ministers decided to expel Russia from the Council of Europe with immediate effect, but without spelling out the consequences.

Was it a surprise? Russia had come close to expulsion in 2000 soon after it joined the Council, following Lord Frank Judd’s excoriating reports as rapporteur on Russia’s gross human rights violations in Putin’s Second Chechen War. But Tony Blair invited Putin on a private visit to London in April 201, including tea with the Queen. Putin publicly thanked Blair a year later for having saved Russia from expulsion.

Again, the Council of Europe imposed sanctions on Russia following its illegal annexation in 2014 of Crimea and support for separatists in Donbas. But the sanctions were removed, Russia was restored to its rights in PACE, and it paid its arrears of subscription, in a singularly opaque deal done in 2019.

Russia has ratified many treaties of the Council. It is a party to the following regional human rights treaties: the European Convention on Human Rights and several of its protocols; the Revised European Social Charter; the European Convention for the Prevention of Torture; and the Framework Convention for the Protection of National Minorities. Russia ceased to bound by any of these treaties as from 16 March.

As concerns the applicability of the ECHR, on 23 March 2022 the Committee of Ministers and the Plenary of the Strasbourg Court decided, separately but almost simultaneously, that Russia will cease to be a Contracting Party to the ECHR on 16 September 2022. This means that Russia will be responsible for violations of the ECHR that occur during this six month period. Thus the Strasbourg Court will have jurisdiction over all applications alleging violations of the ECHR that occur before and  during this period that are filed until 16 September 2022, and possibly later, if the Court accepts cases alleging violations before that date but where domestic remedies are exhausted thereafter.

The newly elected Russian judge, my friend Mikhail Lobov, will continue hearing cases until 16 September 2022, when he will no longer be a permanent member of the Court. He will continue to sit until then in all cases concerning Russia,

Russia’s expulsion is a disaster for the whole population of Russia, who lose the rights exercised by so many in the 24 years since Russia ratified the ECHR. As of 28 February 2022 18,000 applications against Russia were pending. Their cases will be dealt with.

From my experience representing the applicants in the first six Chechen cases decided in 2005 five years after their claims were lodged, and most recently the judgment of 24 September 2021 in favour of my client, in Carter v Russia, that her husband Alexander Litvinenko was murdered by the Russian state, I am certain that my clients did not seek financial compensation, nor were they deterred by the long wait.

What they wanted was the truth of what had happened to them and where responsibility lay, from the highest court in Europe.

In an article of 28 March 2022, the serious Russian daily newspaper Kommersant, reporting on the decisions of 23 March 2022, asked whether, with the 18,000 backlog, the Court would prioritise judgements in the most politically resonant cases, for example the many complaints of Alexander Navalny, or the NGO Foreign Agent cases. The paper recalled that the first 11 such NGO complaints were lodged in 2012. In March 2017 when the Court communicated them, there were already 48 NGO applicants.

So far there were no indications that Russia would not execute judgments against it, albeit without enthusiasm. It should be recalled that Russia has paid almost all the compensation ordered in the many cases decided in 24 years. There have been many cases where reforms to law and procedure have been implemented following judgments. The case-law of the Constitutional Court of the Russian Federation is full of cases citing the ECHR and its case-law.

Since the judgment and law of 2014 and 2015 permitting the Constitutional Court to rule that it is constitutionally impossible to comply with a judgment of the Court, there have been only two such cases, Anchugov and Gladkov v Russia, following the UK’s bad example in Hirst v UK, which was settled to the satisfaction of the Committee of Ministers; and the Former Yukos Shareholders v Russia, where I have some sympathy with Russia, which has paid costs and expenses, but not the enormous sum of compensation..

How will the war end? No-one knows, but it has already been a disaster for Russia. Ukraine had no army in 2014. Now it has a professional army with more than seven years of experience fighting Russia and its proxies. Ukraine has become much more united and patriotic. Putin did not expect such resistance to his invasion.

Nevertheless, Putin already has three major achievements.

First, he has brought NATO back to life. With Finland and Sweden considering membership, Russia will soon have an even longer border with NATO.

Second, despite his having secured Brexit, with the help of his friend and admirer Nigel Farage, he has succeeded in uniting the EU, even his friend Victor Orban in Hungary.

Third, as a result of Putin’s action, Germany has changed its firmly held policies of so many years.