Tuesday, 25 November 2008

A Critique of Pure Luck: Meno & Posterior Analytics

In the Meno, Plato shows how knowledge of the Pythagorean theorem is inherent in an uneducated boy. If this is true, then either Socrates knows how to extract external truths or we are witness to trickery. If the former then Socrates is one of the greatest educators ever; if the latter then he is just another fraudster. If the former then what we need to know is somehow embedded within and the training we need is how Socrates' method works. If the latter then we can dismiss the Socratic method. If the former then Socrates embodies the genuine philosopher and upholds the philosophical ideal in real life. But if the latter then philosophy is louche--a cocktail party joke at best! (See John Flood's "For Joe").

Aristotle was so bothered by the Meno, not sensing Socrates' joke so to speak, that he wrote the Posterior Analytics (PA) trying to explain how "all teaching and all intellectual learning come about from already existing knowledge." [71a, 1] The questions arising from the Meno are interesting (e.g. how should we teach? how should we learn?) but Aristotle's answer in the PA turns out for the most part about different forms of understanding the particular, and deductive demonstrations of the universal and the particular. [84b35, 85a15] In Book I of the PA, he sets out a programme for understanding a thing simply (simpliciter) as distinct from universally. What you know simpliciter is different from what you understand universally. [71a25] What the boy knows simply in the particular is, in other words, different from what one would understand universally.

Although he never really explains how the heck the boy in the Meno can "understand" or "deduce" the Pythagorean theorem, sweeping it away as some kind of con job [71a 30], he
does appear to favour a dull Occam's Razor ("demonstration through the fewer items is better, other things being equal") [86b 5]. Perhaps demonstrations of universals are the easiest types of arguments? Unlikely.

Was the boy's understanding a matter of chance?

Aristotle argues: "There is no understanding through demonstration of what holds by chance. For what holds by chance is neither necessary nor for the most part, but what comes about apart from these; and demonstration is of one or other of these. For every deduction is either through necessary or through for the most part propositions; and if the propositions are necessary, the conclusion is necessary too; and if for the most part, the conclusion too is such. Hence if what happens by chance is neither for the most part nor necesary, there will not be demonstration of it." [87b19-26]

I wonder whether the modern discourses based on uncertainty and risks such as finance, risk management and risk-based regulations are impossible to understand not because we are incapable of understanding but because we happen to describe the phenomena in terms of chance.

Saturday, 1 November 2008

Philosophical Issues of the Credit Crisis

I am amazed that the credit crisis forces us to consider some basic philosophical issues re informal fallacies, e.g.

  • Kantian unprovable apriori synthetical metaphysical premises--"the world is one credit crisis";
  • Ghostly deus ex machina causation--"the credit crisis has made my train late";
  • Circulus in probando by filthy rich bankers-turned-unelected dictatorial ministers--"this is the only alternative (pay bankers with taxpayers' money) because I know it is worse any other way";
  • dicto simpliciter--"this is a credit crisis because I say so".

C'mon.

The media's game is to get under our skin so that as Aristotle put it, "we become what we perceive." Thus, "I think therefore I am part of the credit crisis." For the media, "the credit crisis is, therefore I, the media, make money".

One way we might protect ourselves from the electronic tsunami of rumour, falsehoods, hearsay and outright frauds by the news pundits and "macro-economists" who happen to work for banks or funds is to gain a modicum of financial literacy and to focus on what might be called "a critique of pure luck".

What is financial literacy? It is basically to understand risk in its dimensions through social time and social space. When you think about it, finance as risk is extremely symmetrical. We can get into a very long and fascinating discussion here. [Beyond the basic slogans, for the social theorists, I will only point to two areas of fundamental fecundity: (1) Group Theory--as defined by the mathematical logicians of the 19th century--from Galois on through Lie, Abel, and used to re-write the physics of the 20th & 21st centuries; and (2) Category Theory--an alternative to set theory which is yet to be applied in social science and law but extremely suggestive--the world as arrows and functors.]

Another way to approach financial literacy is to simply "keep some skin in the game". I would suggest that if the maths are just too boring for you, that you can learn finance viscerally by just trading. As preparation for trading, consider some of the best traders I know are: (1) excellent surfers on real oceanic waves; or (2) shark divers. A fine trader's mentality is found in some of the highest levels of abstraction, e.g. note Pascal's God-bet before he entered enlightened quiessence and Hilbert's enlargen programme on the 10 hardest bets on research programmes in the 20th century.

What is a critique of pure luck? It is the belief that all things are alive. Lots of so-called traditional people think this is obvious--what the cultural anthropologists called "animistic". To update this "animistic urge" into the best of Western thinking and to be a bit more precise (but still unpardonably vague), all things that interact as communicating systems are Von Neumann Universal Constructors--that is, these "things" do just that (what is logically required) to replicate themselves in whatever world they find themselves. These nestled systems give the world its form. This form is not invariant. The only necessary invariant is that material of this world hasn't changed at all for billions of years. [Democritus & Leucippus, et Lecretius RIP.] Physicists tell us this--that the planet Earth is composed of the same atoms (give or take some meteroic and cometal accretions and collisions) since the very beginning over 4.5 billion years ago, and for another googleplex years, the atoms will be the same. Although we might wrongly believe that there has been "progress" since way back then. All there has been is really a "re-arrangement" of form. Socrates is even more right now--we as humans are ridiculously insignificant.

As an exercise for the Von Neumann Universal Constructor, we might consider the credit crisis as a good opportunity to think about what laws are conserved through global crisis or anticipating the dark ages (forget the Depression, that's just too small a wave to bother surfing), in case of the BIG ONE, what is the form of laws that are necessary to re-boot civilization?

Answers should be sent to the New York Times and the Financial Times.

Wednesday, 10 September 2008

Wednesday, 16 July 2008

Baha Mousa, Shattered Zoe

Mumbling about Baha Mousa, Giorgio Agamben, Niklas Luhmann and Gunther Teubner: Politics, Law, Zoe, Rights and Consciousness

Baha Mousa and Basra adventure mates. Nine men have been tortured, one to death. [1] Only ‘Corporal Payne’ has been condemned (court martial for war crimes) to one year imprisonment (the proceedings of the cases have been characterised by substantial lack of evidence). On July 10th, the Ministry of Defence has ‘awarded’ a £2.83m compensation. Shall a breath of relief be released, shall the event be greeted as justice for the hurt being finally made in/by Britain?

Incidentally, what a big-hearted settlement: Taxpayers pay. What is the response/ responsibility/ accountability… towards the citizens? What is a state, what is a nation? Really are the citizens ultimately the guilty? Yet guilt is not a fashionable concept. What is politics? I feel like defining power today. I define power as the possibility of getting away with it. After all, similarly thinks Agamben, about the state of exception…[2]

Thinking of Luhmann,[3] thinking of the dodgy conundrum of law (especially, the vertical law) and politics. Law generating normative expectations. Normalisation... But l’eccezione conferma la regola! The exception confirms the norm. The Ministry of Defence has admitted the ‘breach of human rights’. This formulation makes me queasy. I try to understand why. It is a sudden glance, and human rights law appears now as regulating bare life, the homines sacri. It is a paradox. Bios, political life without flesh and blood,[4] is the juridical subject, the social – and more specifically legal – communication. This occurs abstracting it from zoe, the bare life. Thence zoe is abandoned!

Thence the utmost heinous crimes (intended, unnecessary, sadistic, prolonged) are neutralised. In particular, the army systemic logic is quintessentially based on the notion of bare lives, of homines sacri, the spendibililty of life. The war (extra) territory (the no man’s land!), reminds me the theatrum politicum, the theatre of bare life staged by de Sade in the “120 Days of Sodom.” As Agamben read it, in such theatre the very physiological life of bodies appears, through sexuality, as the pure political element. The political realm par excellence emerges in the maisons. There, every citizen can publicly summon any other citizen in order to compel him to satisfy his own ‘needs’.[5]

And I also wonder about the inconsistency of rights, their changing in vertical law (constitutional law, international human rights law), horizontal law (criminal law, law of war??)…

I cannot but see (or, rather, self-observe, introspect…) a zoe in shatters!!


[1] See E.g., http://news.bbc.co.uk/1/hi/uk/6360845.stm, http://www.guardian.co.uk/uk/2008/jul/11/military.defence
[2] See E.g. Agamben, Giorgio, 1998, Homo Sacer. Sovereign Power and Bare Life, Heller-Roazen, Daniel, transl., Stanford (CA): Stanford University Press
[3] See E.g., Luhmann, Niklas, 1995, Social Systems, Stanford, CA: Stanford University Press
[4] Also cf. Gunther Teubner's account in Teubner, Gunther, 2006, “The Anonymous Matrix: Human Rights Violations by ‘Private’ Transnational Actors, 69(3) Modern Law Review, 327-346
[5] Agamben, cit., at 134-5

Saturday, 21 June 2008

Pragmatism distanced from principle or disengaged politicking? An IHL enforceability conference and a judgement of the Israeli Supreme Court


On June 1, 2008 I attended an international conference under the title ‘Complimenting IHL: Exploring the need for additional norms to govern contemporary conflict situations’ organised by the Minerva Center for Human Rights of the Hebrew University of Jerusalem and the ICRC. The question at stake was whether the problems created by an archaic legislative framework of international humanitarian law called for further legislation (for the purpose of clarification) and if this indeed was the only means to achieve these objectives?

In response to the opening keynote address of the conference delivered on 1 June, 2008 by the honourable Judge Theodor Meron, Prof. Françoise Hampson spoke, amongst other things, about the role of the law in the regulation of State activities of this kind. She noted many a time that the imminent problem is not the law itself, and its conceptualisation of certain notions and rules, but rather its enforceability and thereby implementation. The fundamental rules already exist (granted with certain loopholes and outdated elements) and therefore the solution cannot be found in legislating new laws. Why is it then that we usually resort to new legislation for solutions? Because it is easier.

Such processes that seek new legislation imply the unavoidable - they make the current laws seem futile and meaningless and belittle their importance as a whole - creating a very dangerous situation at present when new legislation has yet to be designed or even conceptualised. So, if this is our present approach to the laws of war, why should new laws be treated any differently?

Subsequent remarks implied that what needs to happen is the establishment of a truth commission or analogous impartial and independent investigatory body that would undertake to investigate the situation from a neutral position and into considerable depth, compensate the victims, and punish the culprits. The multiplying and fragmenting international judicial system of courts and tribunals is nonetheless dependent on the will of states and is subject to their availability and acceptance of not only jurisdiction but procedural terms. Such an ‘opt in’ prerequisite considerably limits the scope of their jurisdiction. There is, however, still hope for a similar criminal tribunal to those established in Rwanda (ICTR) and ex-Yugoslavia (ICTY), or the hybrid courts of Sierra Leone and Cambodia will be established in the Palestine/Yisrael region.

This equally reminds me of what Prof. Marco Sassòli has often remarked on the situation at hand (whose words I vividly recall from his lectures at the University of Geneva). In these circumstances we should be reminded that if the relevant parties (primarily the State parties involved who continue to flawedly rely on reciprocity as a grounds for legality) would comply with the legal obligations that bind them, it would make for a more solid grounds for all other construction processes, political and otherwise.

To evince the judicial practice as well as the worries of human rights practitioners in the region, the judgement of the Israeli Supreme Court in the case of HCJ 9132/07 Jaber Albasioni Ahmed and others v The Government of Israel that was handed down on 30 January 2008 is a good example to use. This was a case where 12 different petitioners, amongst them 9 organisations (one of which is the organisation I presently work with, Hamoked – Center for the defence of the individual), lodged a fundamental (as opposed to individual) petition against the policy decision of the Israeli authorities to limit the supply of gas and electricity to the Gaza strip and intensify the already traumatic humanitarian crisis.

This petition was decisively rejected (the following excerpts are a free translation from the decision which was not, and will probably never be, translated into English). As President of the HCJ Judge Beinish notes in the opening paragraph of the judgement, there is no obligation on the State of Israel to transfer an unlimited amount of electricity and gas to the Gaza Strip "in circumstances where some of these resources continue to sustain the terror organisations for the purpose of targeting Israeli civilians."

She continues, “Israel no longer has effective control of the happenings in the territory of the Gaza strip...[and] in these circumstances, there is no general obligation on the State of Israel to care for the well-being of the population of the Strip and to maintain the public order in the region under the framework of the law of occupation in international humanitarian law.” (para. 2)

The HCJ was therefore convinced that “the decrease in supply in [three out of the tens of electricity lines that supply electricity to the Gaza Strip] does not violate the humanitarian obligations that bind the State of Israel in the context of the 'armed conflict' that is ongoing between it and the Hamas group that is controlling the Gaza Strip.” (para. 18)

These assertions are of a considerably paradoxical nature. The Court never recognised the 'humanitarian legal framework' (at least not its full range of instruments) and now it refers to it in retrospect when noting that it no longer applies (when it clearly does, as the IDF still has effective control over the Strip and the life of the local population).

It should be noted that this is only one of many amongst a collection of profane judgements that misinterpret and selectively reference the very fundamental international legal frameworks that have applicability in armed conflict situations and that the State of Israel has signed and ratified.

Complimenting this case, there was a parallel petition lodged demanding explanations on the continuous pumping of gas by Israel from the seabed nearby the Gaza Strip. Israel is pumping away whilst the population of the whole Strip is suffering from a severe shortage where bakeries are being shut down and cars are running on cooking oil. This particular petition is not recalled anywhere in the press and the reminence of this major gas field discovery can only be evinced by much older news pieces from the international press announcing the joint venture and the contracting of international companies.

Saturday, 14 June 2008

Cosmopolitics, Power, Human Rights and the Crisis of Law



On February 27th, 2008, the Westminster International law and Theory Centre hosted Bill Bowring (Birkbeck College, University of London), Costas Douzinas (Birkbeck) and Vivienne Jabri (Kings College, University of London) to present their thoughts and work, as well as interact with other speakers and participants under the title 'Cosmopolitics, Power, Human Rights and the Crisis of Law'. The dialogue was chaired by Julia Chryssostalis one of the Centre's directors.

A Marxist Critique of International law



On Wednesday, 5th March 2008, China Mieville (Birkbeck College, University of London) was hosted by the Westminster International law and Theory Centre to speak on his new book 'Between Equal Rights: A Marxist Critique of International law' (Haymarket, 2006) and challenge the traditional reproaches of the international legal framework and its enforceability mechanisms whilst seeking to appreciate the value and significance of its role.

Schmitt, Politics and International law



On Wednesday, 12th March 2008, William Rasch (Indiana University Bloomington) and Chantal Mouffe (Centre for the Study of Democracy, University of Westminster) were hosted by the Westminster International Law and Theory Centre to share and expound upon their thoughts and interpretations of the work of Carl Schmitt.

Wednesday, 7 May 2008

Platonic Drinking Laws

One would be hard pressed to find a modern scholar digging the fields of the philosophy of law who would pin his career on what Plato considered a primary subject of serious study in his last and longest dialogue entitled, The Laws. It is as if out of the patheon of laws that Plato could have considered, the first activity which he chose to consider because it is connnected to all things social, could conceivably be socially regulated and for which only a proper training and education would allow the community to flourish, was drinking. This is the elder Plato without the mouthpiece of Socrates but who nevertheless has his charm, and attempts to persuade his listeners in the most solicitous fashion, how drinking has more benefits than detriments to society if it is part of a wider social programme of proper education aiming towards aimable friendship. At the end of Book II, however, the Athenian (Plato's mouthpiece), abruptly ends the discourse on proper drinking laws by laying down Draconian drinking laws.

"Ath. I should say that if a city seriously means to adopt the practice of drinking under due regulation and with a view to the enforcement of temperance, and in like manner, and on the same principle, will allow of other pleasures, designing to gain the victory over them in this way all of them may be used. But if the State makes drinking an amusement only, and whoever likes may drink whenever he likes, and with whom he likes, and add to this any other indulgences, I shall never agree or allow that this city or this man should practise drinking. I would go further than the Cretans and Lacedaemonians, and am disposed rather to the law of the Carthaginians, that no one while he is on a campaign should be allowed to taste wine at all, but that he should drink water during all that time, and that in the city no slave, male or female, should ever drink wine; and that no magistrates should drink during their year of office, nor should pilots of vessels or judges while on duty taste wine at all, nor any one who is going to hold a consultation about any matter of importance; nor in the daytime at all, unless in consequence of exercise or as medicine; nor again at night, when any one, either man or woman, is minded to get children. There are numberless other cases also in which those who have good sense and good laws ought not to drink wine, so that if what I say is true, no city will need many vineyards. Their husbandry and their way of life in general will follow an appointed order, and their cultivation of the vine will be the most limited and the least common of their employments. And this, Stranger, shall be the crown of my discourse about wine, if you agree. Cle. Excellent: we agree."

The quote above at the end of Book II of The Laws is a sudden and abrupt departure from the Athenian's charming persuasion. And here is the point of the law that does not cede to education as a social solution. The law in the form of legislation, if necessary, because education fails results in a much less happy society. Plato is saying, "Either we find a graceful medium in which proper education leads to peace and aimable relationships or we lay down the law and regulate the hell out of people's lives. Make your choice." This harsh tone is certainly not found in Socrates. Not even in his death is he anything but charming.

Thursday, 1 May 2008

The Awesome and Dangerous Ethical Rationalism of Olsen and Toddington

On behalf of myself and Henrik Olsen can I say that both our gratitude and our apologies are due to JoeTanega (“Egalitiarianism Riposte”, Blog, Thursday 24th April 2008).

We are grateful not only for Joe’s vigorous contribution to the Olsen and Toddington Seminar ("Why Multiculturalists Should Seek to Abolish the Right to Freedom of Religion" Westminster, April 23rd 2008) but also for the unexpected joy of reading, in portly and greying middle age, that there is someone out there who regards us as “…awesome and dangerous…” Even the comparatively youthful Henrik Olsen appeared to be buoyed by the prospect of this formidable notoriety. Similarly, if rather more sedately, we received in Joe’s blog more compliments than Rationalists and Legal Idealists can expect in a career of review. We’ll take this any time: “Toddington and Olsen have a non-mystical, very rationalistic idea of what constitutes religion which is frankly...egalitarian…” (“Egalitiarianism Riposte”, Blog, Thursday 24th April 2008 para 1).

Apologies are in order because, in the (literal and figurative) heat and noise of the seminar in question, it appears that we were not sufficiently clear about our views and about the identities of our theoretical antecedents. We can only hold ourselves responsible for these confusions and make an attempt here to dispel them. It shouldn’t take long; 90% of Joe’s ‘riposte’ has little or nothing to do with Olsen and Toddington; like most blogs, including this one, and understandably these days when reading, writing and thinking properly is such a task, it’s all about the blogger.

JoeTanega wants to explain at length first, why he is not an egalitarian, and secondly, he wants to argue for a philosophy of ‘darkness’ that holds that the deepest virtue and the most genuine experience of religious belief is to be found in the secrets of the heart. Of the first contention, the objection to Egalitarianism, it would be convenient to say that this is none of our business, but as proponents of Natural and reciprocal rights and duties, we at least have to point out that this position is not only irrational, but, on a more personal note, that it is rather disappointing to be apprised of it. But fortunately (for Joetanega and for other rights bearers), some comfort can be taken from the fact that Joe has no idea what Egalitarianism is. It is, as we all know, the thesis that agents have equal rights; but Joetanega confuses it with the absurd and, as far as we are aware, universally unsubscribed suggestions that:

…it is an ideal born out of the quasi-statistical invention of sameness of equi-probable events…the misbegotten export of a very useful mathematical concept… randomness where each and every thing is the same… purchased for the realm of social control. (“Egalitarianism Riposte”, Blog, Thursday 24th April 2008 para 2 lines 1-4)
or that,

Egalitarianism is one of those projected… symmetry ideas that says, "Forget all the differences we see in the world, and let us imagine a world where everyone has the same of something or where everyone should be treated the same no matter what the special conditions”. (“Egalitarianism Riposte”, Blog, Thursday 24th April 2008 para 2 lines 1-8).

On the contrary, the liberating and uplifting thing about having a systematic understanding of what rights are, where they come from, and why they are equal, is that, in the infinite flux of context in a world where we experience vast differences of attributes and capacities between persons, one is able to entertain the hope that where such differences militate against the civil ideals of equal and mutual respect, rights might be interpreted, applied, weighed and balanced against each other in the rational attempt to produce artificial equality from natural morality. Legal Idealists, like us, call this process 'law'. It's often very useful; equal rights to freedom and well-being justify the forcible prevention of, say, large violent persons beating up small, timid persons.

As for the theory of ‘darkness’ - Joetanega’s second major digression - it was an enthralling read, and it might well be true, but it has no bearing whatsoever on our suggestion (in Architectures of Justice, Chapter 6,[1] and as advanced in the seminar in question) that, in a society that understands egalitarianism and pluralism rationally – and proprietary brands of ‘Multiculturalism’ do not understand equality and pluralism rationally[2] - hierarchical distinctions and thus opportunities for special pleading between ‘religious’ belief and other ‘less important' ‘partial' philosophies of life should not be perpetuated. All this aside, the entire substance of Joetanega’s blog which requires remedial attention from us is as follows:

[Toddington and Olsen argue ] for an ethical epistemology based on J.S.Mill's premise of freedom. Toddington's version of Mill's freedom is that it is actually "the responsibility of egalitarianism to maximize the scope of personal efficacy." (“Egalitarianism Riposte”, Blog, Thursday 24th April 2008 para 1 lines 2-5)

Neither Henrik nor I have ever had a good word to say about J.S. Mill. What we did say was that we based our epistemology of rights firmly on our modified understanding of the work of Alan Gewirth[3] and that his argument to the Principle of Generic Consistency (PGC) could and should be assimilated to Lon L. Fuller’s conception of ‘Affirmative Freedom’ elaborated in his (Fuller’s) famous essay “Means and Ends” and more clearly in Kenneth Winston's recent discovery and reconstruction of Fuller’s 1958 Edward Douglas White Lectures now published as “The Case Against Freedom”.[4] Gewirth’s epistemology of rights, we suggested, offers foundational ethical support for Fuller’s imaginative, but insufficiently grounded speculations on institutional design that we find in his writings on Eunomics. We said in the seminar (or intended to convey) that Fuller's key insight is that a socially engaged conception of (’affirmative’) freedom (entirely unlike J.S Mills’) leads us to acknowledge that it is the responsibility of legitimate (eunomic) institutional design to aim to maximise the scope of effective agency. So JoeTanega was almost right; but it was very noisy in there.

If one wants to be entirely clear on the points made, we explain them very fully in Chapter 2, 5 and 6 of Architectures of Justice.[5] J.S. Mill does get a mention here, (and maybe he did in the seminar), but only to note that Mill’s theory of (negative) freedom and the historically inexplicable reception and continuing influence of the vacuous tautology that is peddled as the ‘Harm Principle’ were the focus of a sustained and devastating critique[6] that forms the most core concepts of Fuller's (and our contribution to Fuller's) Philosophy of Eunomics.

Check out the book and you will see why Joetangea can cease to live in awe of our dangerous ideas: Not only do we cherish the secrets of the heart, but we also make an egalitarian stand for those who espouse secular and partial philosophies of life as opposed to religious or ‘total’ philosophies of life, and who, in terms of rights protections, are currently regarded as the legal inferiors of religious devotees. This latter anomaly arises because, in straightforward technical or black-letter terms, unless one accepts that the current human rights legislation relating to freedom of expression, association and assembly (let’s take the ECHR articles 10,11, 14 and also note the overlaps with 8 and 6 and with Article 2 of Protocol No.1 of the convention) is capable of subsuming -doing the same job as - the right to freedom of religion (Article 9), then one must make a special case for retaining and prioritising the type of freedom protected by Article 9. This defence generally takes the form of claiming that religious belief is more important than other forms of belief. There are large numbers of people anxious to take this irrational standpoint, but none who seem capable of substantiating it. All religious arguments for this position are, obviously, question-begging – that doesn’t mean false, it just means circular, and thus, logically speaking, uncompelling. The non-religious arguments we examined in Chapter 6 of Architectures – and those advanced by seminar participants - were and are, in our view, similarly unsatisfactory.
Joetanega’s 'darkness’ we might add, is not so much protected by Articles 8, 10,11 etc., it doesn’t even hit the regulatory radar. Arguing, as we do, for a secular and unified right to freedom of religious and cultural expression does not amount to the demand that individuals must cough up their deepest and most private hopes and fears. This is Orwells Room 101: a technological fantasy of complete fascist control. When New Labour invent the machine that can monitor such thoughts, we'll campaign against it shoulder to shoulder with joetanega.
Stuart Toddington and Henrik Olsen April 31st 2008

[1] Olsen, Henrik and Toddington, Stuart Architectures of Justice (Bodmin: Ashgate, 2007)
[2] See Ibid. Chapter 5
[3] Gewirth, Alan Reason and Morality (Chicago: Chicago U.P. 1978)
[4] Fuller, Lon. L “The Case Against Freedom” in Winston, K. [Ed.] The Principles of Social Order (Oxford: Hart Publishing 2001) pp.317
[5] See (fn.1 supra) pp.67-70
[6] See (fn.4 supra)

Friday, 25 April 2008

Too much to ask of the Security Council?

To remind us of the situation in Kenya in December 2007 (which by all means continues today), I felt an irremediable urge to direct some of you to this brief recap by the Human Rights Tribune (April 18, 2008) of a statement made by the UN rapporteur on human rights in the occupied Palestinian Territories, John Dugard, on the ongoing fighting between the IDF and Hamas as he calls for the UN to assume its 'traditional' responsibility as a 'mediator':

http://www.humanrights-geneva.info/Statement-of-UN-rapporteur-on,3023

To borrow from John:
"The United Nations, acting through the Security Council or the Secretary-General, must do its utmost to protect the lives of both Palestinians and Israelis. Surely it is not too much to ask of the Security Council, and if it cannot act, the Secretary-General, to protect human life, even if it means talking to a group of which it may disapprove politically."

We should still hold hope that this "anti-semite" (for his criticism of [Israel's] policies", that is) who will succeed Dugard, will maintain this laudable resistance to the UN's current approach:

http://www.humanrights-geneva.info/A-controversial-expert-for,2947

Let us know about your thoughts.

Thursday, 24 April 2008

Egalitarianism Riposte

In a clear but I think wrong-headed rationalistic defense of multi-culturalism, Professor Toddington in a seminar on Rights Discourse at the Univesity of Westminster, School of Law, on April 23rd, 2008, argued for an ethical epistemology based on J.S.Mill's premise of freedom. Toddington's version of Mill's freedom is that it is actually "the responsibility of egalitarianism to maximize the scope of personal efficacy." His partner at the forum, Professor Henrik Olsen (Copenhagen) argued pro the title of the talk, "Why Multiculturalists Should Seek to Abolish the Right to Freedom of Religion". I found their combined arguments so awesome and dangerous that I feel compelled to write not so much a refutation (if that were even possible I would pay for it) but a special pleading for the one right which they argue should be abolished. This note should be considered a philosophical riposte to the concept of egalitarianism.

First, why am I against egalitarianism? I am against egalitarianism because it is an ideal born out of the quasi-statistical invention of sameness of equi-probable events. That is, its lineage comes from the misbegotten export of a very useful mathematical concept (i.e., randomness where each and every thing is the same) purchased for the realm of social control. Egalitarianism is one of those projected particular symmetry ideas that says, "Forget all the differences we see in the world, and let us imagine a world where everyone has the same of something or where everyone should be treated the same no matter what the special conditions." This universalistic essentialism forgets about 23 centuries of criticism that says, "If things are the same as each other, then any choice about one thing over another is just as arbitrary as any another." These arguments are pre-Socratic and hark back to Zeno and Parmenides. In other words, a choice in a egalitarian universe is a vote for chaos--the undifferentiated that defies order. Less abstractly, I am reminded of Evans-Pritchard's classic of Witchcraft, Oracles and Magic among the Azande when the most rational of anthropologists decides to conduct a personal experiment where he goes all the way--that is, he decides one day to organize his daily life according to the belief-behaviour system of the Azande, throwing an hen-bone (?) oracle in the morning and conducting his life according to what the oracle dictates. His conclusion is that he felt that there was no difference at all in his life, and it was perfectly fine to conduct his life according to the oracle. Personal choice (the action) always destroys any egalitarianism (the idea).

Second, egalitarianism not only assumes an ideal distribution of something, but that it is also inexhaustibly so. Consider Toddington's version of Mill's freedom premise above. Let's call this the state of the world at time 1. If we have infinite resources and infinite time, then of course, we have egalitarianism. But if resources are limited and time is limited, then we have...queues! And queues translated into social action results in hierarchies. Queues and hierarchies are everywhere in time 2; they are a way of managing conflicts of limited resources over time. Although both Professors say they address hierarchies in their book, the evidence of social hierarchies should demonstrate how distant the notion of egalitarianism is from justifying the multi-culturalism that "allows" hierarchies. Hierarchies are because resources are short of infinite and because we never have enough time to do our groceries and watch our favourite tele. These choices made for us by forming a queue and establishing a hierarchy are anti-egalitarian.

Third, to abolish the freedom of religion for the right to (suffer?!) multi-culturalism is a bit much to swallow. Toddington and Olsen have a non-mystical very rationalistic idea of what constitutes religion which is frankly...egalitarian, de-personalised and rather, dismissive, with a big value judgment. I suggested in open forum that perhaps we should consider the freedom of religion as the freedom to darkness. That is, instead of the freedom of expression, assembly and so forth. The deepest, superiorly & meekly mystical, and anti-rationalistic freedom is totally private. I can hear Professor Toddington and Olsen retort, "But then this is already covered by the right to privacy..." No, it is not. The freedom of religion is beyond privacy. Again, I can only compare it to a classical reference. Julius Cesar was called to bear witness against his wife for sacrilege--apparently, she had had sex with a guard during a particular religious festival on sacred vestal virgin ground no less, violating one of the sacred laws of Rome, punishable by death. Even her mother testified against her. When it was time for Cesar to give testimony, his response was, "You may not ask Cesar." Legal scholars have interpreted this remark as Cesar's arrogance of being above and beyond the law. However, I like another interpretation of this event and that is, that Cesar understood the heart of what it meant to be a Roman citizen--which in one rule was simply this: "As a Roman citizen, no one has the right to interfere with my body." He took this legal concept to another level. By his words, he jumped a couple thousand years, as if to say, "Not only do you not have the right to interfer with my body, but you also may not interfer with my mind." To abolish the freedom to religion is to provide the state with its ultimate compulsion not only over body and mind, but of spirit.

Tuesday, 22 April 2008

obliteration

Tuesday, 22 of april, and Hilary Clinton answered the ridiculous question of what the US would do if in 10 yrs time Iran were to bomb Israel, in this erudite way: "In the next 10 years, during which they might foolishly consider launching an attack on Israel, we would be able to totally obliterate them." Clinton's understanding of 'them' is that it is obviously something that can be obliterated. Obliteration of course is an act of violence (not unlike a split infinitive) because it effaces the creation, the text, the writing: ob+littera="against the letter". It would be quite interesting to observe how a state of generally substandard literacy, ultimately deprived of metaphysics (and thus frightfully unable to comment on why metaphysics should be left behind), and suffocatingly given to identity considerations and improper use of pronouns, how this kind of state would attempt to obliterate a state whose literary output remains immeasurable even at these times of obsessive blogging.

US elections are probably the most irritatingly banal topic that at the same time seems to be attracting an irritatingly disproportionate amount of coverage. Far from me to get unduly excited about him, her or other mysterious apparitions. What is rather relevant however, although still not quite avoiding banality, is the reiteration of the american cliche: they like their guns, they thrive on segregation and classism, and they still believe that they can seriously use the term 'obliterate' in a political way.

Tuesday, 25 March 2008

A secret marriage: Saadi and national terrorist legislation

After a very tiresome attempt by the UK to manipulate what has been clearly established law, Strasbourg reasserts (On February 28, 2008) the following:

"Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15, even in the event of a public emergency threatening the life of the nation...as the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim's conduct...the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3" (para. 127).

A number of intriguing discussions have taken place in the blog-world (see invisiblecollegeblog.com) over the ECHR's judgment in the case of Saadi v Italy (following the jurisprudential practice over Article 3 and the absolute prohibition on torture and the absolute obligation of non-refoulement upheld in Soering v United Kingdom). I was amused by the possibility of marrying these forces for the protection of a terrorist's right to life and the right not to be tortured in the present climate that Western societies are experiencing, with the ongoing elaboration of anti-terrorist legislation (both directly and indirectly speaking, i.e. administrative detention, restrictions on immigration and asylum law, etc) and the discussion I have already undertaken in the context of the AG's opinion on Kaadi in a previous post. This includes equally theoretical questions on objects and subjects (identity and the other) in terms of the 'securing humanity' discourse.

The question is whether the clash between Article 3 ECHR (that of the person subjected to a deportation order) and Article 2 ECHR (that of the population of any of the European capitals that could become the victims of a terrorist attack) has hereby been resolved? The Court asserts that "the prospect that [a person] may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill-treatment that the person may be subject to on return" (para 139). A fortiori, there no "balancing exercise" (between the obligation of non-refoulement and the "risk" or "dangerousness" of the person) to be admitted, not at the level of asserting the facts and indisputably not at that of applying the law. However if this is the case, I would ask whether these examinations are not made futile by the ongoing developments in national terrorist legislation? One could also observe this parallel by asking whether this not just another incident of 'the left hand does not know what the right hand is doing'?

The ramifications that could logically be expected are nuclear; namely, a call to review all existing and developing national terrorist legislation (or even a drafting of a more detailed common anti-terror legislation and Brussels-based enforceability mechanisms) and a reconsideration of a notable number of ongoing cases for the deportation of those persons responsible for a "public emergency threatening the life of the nation."

There is a clear lack of legislation in the form of directives or regulations that specify the requirements or limitations on the substantive scope of the provisions. Inoperative traits on the political and social levels are doomed to continue at this pace. A number of penetrative conclusions have come out of recent research in the field of comparative law and the law of the European Union pointing to the fact that the national interpretation, transposition, and implementation of EU legislative measures shows an unspeakable number of discrepancies and divergences amongst member states (even, and predominantly, between the civilists). In light of these growing divergences, and an absence of an action plan for reconciliation, it may be difficult to ensure, if such legislation were issued by the Community in the future, that it is implemented in an effective and unified manner.

I would be intrigued to hear from those that perceive the current state of the law (both nationally in theUK and regionally) as sufficiently descriptive and instructive for curtailing the tendencies that characterize emerging anti-terrorist legislation. I would also be interested to digest some new interdisciplinary perspectives on the developments of this legal framework and the preventative mechanisms that we aspire to construct in order to accommodate these actors in the current national, regional and international legal orders.Without further pontification, I concede that it is a very burdensome and extended endeavor.

Friday, 21 March 2008

Boycott the Beijing 2008 Olympics

China has not learnt any lessons from the 1989 massacre in Tiananmen Square, except to cover its tracks more cleverly and attempt to exclude the media from covering risings no matter how small.

We now see the same behavior in Tibet. Since 1950 when China invaded and captured Tibet is has oppressed the country and denied its people fundamental human rights. It has flooded the country with Han Chinese in a Sinification attempt.

Now Tibetans are protesting Chinese oppression and demanding independence. China has retaliated brutally killing many demonstrators and imprisoning others. And crudely, the Chinese authorities have tried to blame the Dalai Lama.

Tibet is part of the Olympic flame route.

For its abuses of human rights and oppression of Tibet, the Olympic Games in Beijing should be boycotted. China should not be permitted to pretend to the world that it is a true member of the civilized world community. China must be condemned for its aggression to a peaceful people.

Wednesday, 19 March 2008

Military residents and a reinterpreted principle of 'distinction'

Another series of armed exchanges are taking place in the Gaza strip and we are once against appalled by the non-application and utter (non-gymnastic) defiance of the most fundamental principles of the law of war(forgetting only for a second about its misapplications and misinterpretations).

"Many areas of international law are vague. They can be interpreted in different ways. The situation in Gaza, for example, has no parallel anywhere else in the world. It's all open. So there are interpreters who want to interpret the law in such a way as to limit us as much as possible, and there are interpreters who are more convenient for us," says Israeli Justice Minister Friedmann, when asked about the perceived legality of attacking military targets in densely populated residential areas.

It seems not only that the Israeli government has yet to discern the actual purpose of its offensive or the moralist questions that surrounds the bad, good and evil (I turn you to a remarkably 'interesting' piece by David Horovitz, the Jerusalem Post's editor-in-chief who holds that the misconceptions of the international media are "an aberration that highlights how poorly 'our' complex conflict is understood") (emphasis added), but neither has it had enough time to position itself in relation to the relevant interpretational discourses surrounding the relevant jus in bello provisions.

The set of rules governing the attack strategies of a militarised territorial entity (outlined in Protocol I Additional to the Geneva Conventions (AP I)) against another are a self-applicable and clear framework. Suggesting a degree of complexity, in order to brush matters aside, the applicability (or rather malleability) of the existing law to wars against terrorist organizations is put at doubt.

The matter should be very simple, and action should commence with the adherence to and non-violation of the most fundamental of all principles - civilian immunity and the principle of distinction (the 'basic rule' in Article 48, AP I, to distinguish between civilians and combatants and to target only the latter). These questions remind us of the ones asked before, during and after the American aerial attacks on railways and television towers in Kosovo (granted these were cases of Aerial bombardments and the standards, it has been conceded, are different). These elaborate debates brought us to (un)clear conclusion that each case, and each target, needs to be considered on its own merits - namely, the end achieved by the action must outweigh the damage caused by it. This balancing of facts is to be done in accordance with the second most fundamental tenet of the laws of war, the basic principle of proportionality (Art 51(5)(b) AP I). The problematic is inherent to the definition of a "military target", the question of precision, the precautionary measures (Art 57, AP I) undertaken before and during the attack, etc.

We are faced by a recurring dilemma of IHL, exemplified similarly in the morbid 'one-ton bomb' incident of the house of Saleh Shehadeh in Gaza, which killed 14 civilians, including 8 children. In other words, considering the problematic of evidencing each and every attack in the current conflict frenzy and the hopeless reliance on post-conflictual accountability proceedings (a good example taken from Winograd, see earlier post), it is arguable that these targeting considerations need to be institutionalised as a procedural aspect of the earlier stages of the military decision-making processes. This will unquestionably be the only effective means for assuring that these provisions are at least considered, if not properly implemented. At the same time, this appears absolutely unfathomable in practice.

I suggest (as many international NGOs have done before) that the question to be asked should be much cruder. If we (i.e. laymen), and specifically the media, is able to distinguish (when numbering the casualties) between the civilian and the armed 'combatant', why and how is the legal norm so 'very' dynamically instrumentalised (or altogether ignored)to justify what are, prima facie, clear violations of the most basic and fundamental tenet of international humanitarian law, the principle of distinction?

Friday, 14 March 2008

The 'murky relationship' revisited

Although considerably short and slightly fragmented, this is a very symbolic sampling of what was the workshop titled 'A Murky Relationship: Human rights and UK Immigration and Asylum Policy' hosted by the Centre on February 21, 2008. With a splendid turnout of 70 attendees and an unmistakably challenging lineup of speakers, who managed to tackle the questions from a remarkable number of angles, both academic and practical, it was an event that was able to emphasize most strikingly the inconsistency and inadequacy of the current state of the law in relation to, or when confronted by, the realities of the practice.

The workshop presented the following programme:
Session I
Method versus doctrine: The legal framework

Mark Symes, Garden Court Chambers
‘Old Wine in a New Bottle? Or a New Dimension in Subsidiary Protection? Article 15C of the Refugee Qualification Directive - Protection for Civilians fleeing Internal Armed Conflict’

Dr. Helene Lambert, Westminster University
‘A Common European Asylum System: Harmonisation by the Judges’

Patricia Tuitt, Birkbeck College
‘The Time of the Refugee’

Session II
Instrumentalising interpretative choices: A social conception of law

Dr. James Sweeney, Durham University 
'You are disbelieved': Credibility in the Asylum Process’ 

Sarah Cutler, Refugee Council
‘The fight for asylum in the UK’

Sunday, 9 March 2008

The ethereal experience of web logging (blogging)

I grace Nick Li, from the invisiblecollegeblog.com for making this tangy piece accessible:

http://chronicle.com/temp/email2.php?id=qs9kMFdgdhS4vdqzgkzzktbxrW3nqsxF

This is an incredibly reviving token of recognition for all active bloggers, for those that are weary and are presently crawling into a new world of hopes and shattered dreams and for those who are still skeptic and in disbelief with regards to the blogging ordeal.

If this piece does not make you believe that there is indeed something greater and bigger to come out of the Web logging experience, I hope that its tongue-and-cheek tonality puts a smile on your face, as it did on mine. I, nevertheless, continue to live in hope, and I suggest that some of you join me.

Thursday, 6 March 2008

Enforceability of civil and political rights and the recognition of a legislative void

The Russian election on March 2, 2008 was an election "in name only", said the independent. "Had it happened in Africa, the capitals of the West would have been full of condemnation. As it concerns a country with a considerable voice in the world's institutions and even more real power in energy supplies, the realities behind Sunday's vote are likely to pass essentially unchallenged". (see Independent.co.uk)

The Russian Federation is a party to the Covenant and the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) (ratified the protocol on 1 Oct 1991). Article 25(b) of the Covenant holds as follows: "Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:...(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;..."

General Comment No. 25 elaborates on the terminology of para. b by mentioning the pivotal implementation of this right through the conduction of "genuine periodic elections", "fairly and freely". The Comment also mentions the establishment of an "independent electoral authority...to ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant". State reports to the special Committee are required to "indicate what measures they have adopted to guarantee genuine, free and periodic elections and how their electoral system or systems guarantee and give effect to the free expression of the will of the electors".

The politicisation of the international legal order is not a new phenomenon and neither is it a marginal, or marginalised, discourse. Its central role in the academic world is far from being lamentable. Albeit eminent, it is, however, self-limiting and self-limitative in the sense that it refuses to transcend its own boundaries and undertake an activist parlance - that which assumes responsibility and acts upon its normative assertions. Be it in terms and languages that it has long condoned, destruction and concurrent reconstruction, or rather development, is long overdue.

I suggest that to observe the human rights institution from a positivist stance - appreciating the existence of a certain vigor in the tools that it presents, recognising and grasping onto the instances of triumph that it has achieved - is to recognize the legislative loopholes and lacunae with which it is ridden.

This is only one more strike against the Russian people's enjoyment of fundamental civil and political rights; following a series of restrictive legislative measures on the registration and formation of noncommercial organizations, and a general recent past that resonates a typology of diluted fascist tendencies (i.e. restriction of mass media, nationalisations, corruption in all three branches and a growing number of antagonistic gestures towards the West). Instead of subjecting the Russian State to the kind of accountability measures that the Economic and Social Committee (through or together with other UN bodies) should be imposing, we are faced with the realization that the provisions/tools that we require are not readily available.

In order to hope for a constructive response from the ICCPR Committee at the UNHCHR, the Russian State will have to submit a report under the Covenant's mechanisms. Alternatively, or concurrently, an individual complaint could come under the mechanisms outlined in the Optional Protocol. The latter seems a more feasible option, albeit, it is envisageable, it would be heavily obstructed by the relevant national authorities. The individual complaint mechanism remains the only kernel of hope. It is the only means to challenge and enforce the irremediable rights of a rigged and illegal political process.

A naively posed, simplistic question remains untreated: is there not something inherently toothless and powerless in the current compilation of enforceability mechanisms available to the most fundamental international legal principles? This is one other reflection of the current defenseless state of international law (without actively attending to the forceful calling of the normative discourses this particular phenomenon attracts). It is also a crude reminder of the precarious nature of the surfaces on which its current legal instruments, such as the ICCPR, hopelessly stand.

With an intense desire to transcend this morose static status, a determinative change in approach is required that would not fail to instantly point out the violations procured by state parties (i.e. Russia's blatant disregard for the rights of the people or the carelessness in which it had, with full knowledge and considerable nonchalance, conducted the recent elective process).

An immediate enquiry should be commenced, an investigatory process and independent group of experts delegated and an evaluative communication delivered by the ICCPR Committee. Finally, and most critically, a number of elementary mandatory stipulations need to be ordered for the purpose of hastening the corrective procedures and remedying those whose rights had failed to be protected by forcefully giving them effect (viz. even if this means that a re-election is the only viable means for achieving this objective).

Friday, 22 February 2008

Philosophical Notes

1. "By a sophistical refutation and syllogism I mean not only a syllogism or refutation which appears to be valid but is not, but also one which, though it is valid, only appears to be appropriate to the thing in question. These are those which fail to refute and prove people to be ignorant according to the nature of the thing in question, which was the function of the art of examination. Now the art of examining is a branch of dialectic: and this may prove a false conclusion because of the ignorance of the answerer. Sophistic refuations on the other hand, even though they prove the contradictory of his thesis, do not make clear whether he is ignorant: for sophistis entangle the scientist as well with these arguments."

See: W.A.Pickard-Cambridge http://ebooks.adelaide.edu.au/a/aristotle/sophistical/

Comments: A biographer of Wittengstein said that Wittengstein use to brag that he had never read Aristotle. Having read both, my feeling is that Wittengstein was very close to Aristotle in spirit. Compare the W's Tractatus to A's Sophistical Refutations and we see both are primers in some kind of rule based system which is context free. Both teach to conquer. But the Sophistical Refutations are actually a mid-point to the later W. The later W in his Philosophical Investigations has turned anthropological, probably due to the influence of Malinowski, and his method has turned into sage-like suggestiveness rather than the professorial indicative. Why? Context matters. Substance, like rites, rituals, signs and symbols are relative. I wonder what would the philosophy of law be today if Hart had not been disgusted by W. One spooky thing about W is that he appeared to hold his own at the centre of so-called classical philosophy-- logic, truth, causation were easy pieces to him; and then his bouts with the absolute mystical, which he did not deny, gave him a perspective of the ordinary which is at once austere, serene and deeply in touch with what is. Reminds me of Socrates without a patsy.

Tuesday, 19 February 2008

The King is Dead, Long Live the King......

In opposite ends of the world leaderships shifted. Fidel Castro is not seeking re-election as President of Cuba and President Musharref of Pakistan conceded defeat in parliamentary elections.

Earth shattering? Debatable.

Both dictators have not actually lost power but they have moved the administration of their states to others. Castro is still First Secretary of the Party and Musharref is still president but no one is giving him favorable odds on staying long. And the Pakistani army is dithering over who to support.

Autocratic Castro has handed over to his brother, Raul. And Musharref is playing the normal round of musical chairs with Pakistan's plutocratic elite as one family trades power with another. Both are essentially feudal states.

Have the people gained anything? Is democracy about to explode into their spheres? Unlikely--that will be a long time coming.

Tuesday, 12 February 2008

A fruitless Winograd and the obligation to effectively investigate, prosecute, and punish

Yaron Ezrahi, a political scientist at Hebrew University, said he believed that Mr. Olmert’s days were numbered, because Israeli leaders “rise and fall” on their war leadership. “There has never been a case in Israeli history that an authoritative commission said something so blunt about a war that took the lives of soldiers and the lives of civilians, that blamed so bluntly the political decision makers for the failure of the war,” he said (see NYtimes.com). The report harshly criticizes the practices of government and the performance of the military, but pays no more than lip service to a core pillar of the laws of war - the obligation to effectively investigate, prosecute, and punish in the aftermath of a conflict.

The government has the right to establish such commissions that are necessary to investigate matters of public concern, namely those regarding military activities. The problem that the Commission incurred in this process was a result of the mixing between the question of the Report itself (content and form) and the parallel, but ostracized, question of what is to come as a result of these fact-finding exercises, who and how will be prosecuted and punished.

The question that is asked, in the shadow of this post-Winograd anguish, is what are independent investigatory commissions good for? and, to what extent are post-conflict investigatory obligations (namely, Article 132, Geneva Convention III and Article 149, Geneva Convention IV) effective, if at all relevant to the twenty-first century war climate.

The manner in which this particular enquiry was conducted perverses the very foundations of these simple but imperative legal norms. The law outlines as follows: An enquiry shall be carried out as soon as possible by a Commission instituted for each particular case, and comprising three neutral members selected from a list of qualified persons drawn up by the High Contracting Parties in time of peace, each Party nominating four such persons. The plaintiff and defendant States shall each appoint one member of the Commission. The third member shall be designated by the other two, and should they disagree, by the President of the International Court of Justice or, should the latter be a national of a belligerent State, by the President of the International Committee of the Red Cross (ICRC consultations on Art 132). The Parties to the conflict undertake to punish those responsible (para 3, Art 132).

Although it was not vested with the powers of an official state commission of investigation, it had the power to subpoena witnesses and recommend the prosecution of officials it found to have been responsible for wilful or negligent criminal conduct. Essentially, the whole procedure adopted an approach to which we have become slightly too accustomed - it brushed aside available evidence of serious violations of international law, claiming that interpretations of international humanitarian law are controversial, that it did not have the capacity to deal with the volume of data. Finally, it did not propose any concrete measures for the prosecution of the responsible state organs (Amnesty International reports).

Excerpts from a press release summarizing the highlights of the 617 page report convey the following helpless reverberations:
"Let us emphasize: when we imposed responsibility on a system, an echelon or a unit, we did not imply that the responsibility was only or mainly of those who headed it at the time of the war. Often, such responsibility stemmed from a variety of factors outside the control of those at the head. In addition, a significant part of the responsibility for the failures and flaws we have found lies with those who had been in charge of preparedness and readiness in the years before the war."

"Overall, we regard the 2nd Lebanon war as a serious missed opportunity. Israel initiated a long war, which ended without its clear military victory. A semi-military organization of a few thousand men resisted, for a few weeks, the strongest army in the Middle East, which enjoyed full air superiority and size and technology advantages. The barrage of rockets aimed at Israel's civilian population lasted throughout the war, and the IDF did not provide an effective response to it...This offensive did not result in military gains and was not completed."

"All in all, the IDF failed, especially because of the conduct of the high command and the ground forces, to provide an effective military response to the challenge posed to it by the war in Lebanon, and thus failed to provide the political echelon with a military achievement that could have served as the basis for political and diplomatic action...[Seeking peace or managing the conflict must come from a position of social, political and military strength, and through the ability and willingness to fight for the state, its values and the security of its population even in the absence of peace.”

Most damningly:
"Our recommendations contain suggestions for systemic and deep changes in the modalities of thinking and acting of the political and military echelons and their interface, in both routine and emergency, including war. These are deep and critical processes. Their significance should not be obscured by current affairs, local successes or initial repairs. A persistent and prolonged effort, on many levels, will be needed in order to bring about the essential improvements in the ways of thinking and acting of the political-military systems."

Is this it - done and dusted?

Wednesday, 6 February 2008

New Workshops and Seminars at the Centre

The Westminster International Law & Theory Centre

admission is open to the public but spaces limited

RSVP

valazarov@yahoo.com

centre info: www.wmin.ac.uk/law/page-661

1. Thursday, 21st February 2008, 3-7pm

Cayley Hall, 309 Regent Street

Afternoon Workshop: A Murky Relationship

Human Rights and UK Immigration & Asylum Policy

Helene Lambert (University of Westminster), James Sweeney (Durham University)

Sarah Cutler (Refugee Council), Pierre Makhlouf (Bail for Immigration Detainees)

Jerome Phelps (London Detainee Support Group), Mark Symes (Garden Court Chambers)

2. Wednesday, 27th February 2008, 1-2:30pm

Room 2.14, The Law School, 4-12 Little Titchfield Street

Postnational Constitutionalism

Nico Kirsch (LSE)

3. Wednesday, 27th of February 2008, 6-8pm

Fyvie Hall, 309 Regent Street

Cosmopolitics, Power, Human Rights and the Crisis of Law

Bill Bowring (Birkbeck)

Costas Douzinas (Birkbeck)

Vivienne Jabri (Kings)

4. Wednesday, 5th March 2008, 6-8pm

Fyvie Hall, 309 Regent Street

A Marxist Critique of International Law

China Mieville (Birkbeck)

5. Wednesday, 12th March 2008, 6-8pm

Fyvie Hall, 309 Regent Street

Schmitt and International Law

William Rasch (Indiana University)

Chantal Mouffe (Centre for the Study of Democracy, Westminster)

6. Tuesday, 11th March 2008, 1-3pm

Room 3.07, The Law School, 4-12 Little Titchfield Street

Luhmann’s relevance to International Law

William Rasch (Indiana University)

7. Friday, 20th June 2008,

New Cavendish Campus

Journalism Testing Legal Boundaries:

Media Laws and the Reporting of Arab News

in conjunction with the Westminster Arab Media Centre

Saturday, 26 January 2008

Maduro and the Kadi, a weapon of colossal force

The Kadi case arose from the EU Regulation transposing the UN Security Council Resolution's guidelines permitting the freezing of assets by banks belonging to persons suspected of financing or being involved in terrorist activities. The evidential threshold for such terrorist "involvement" was never concretely defined and the discretion afforded to national jurisdictions by the Regulation has been widely criticized, but matters have been exacerbated.

His means of recourse exhausted, Kadi turned to the Community arena to challenge the UK and the Council Regulation that had breached a number of his fundamental rights; namely, the right to the enjoyment of property and the right to an effective remedy. This challenge creates two concerns:

i. By challenging the Council Regulation, Kadi is challenging the Security Council's Resolution and is in fact asking the European Court to indirectly review the validity of these international provisions; and

ii. By challenging the Security Council, the European Court would question the supremacy of the UN Charter over the Treaty, avoiding particularly the authority of Article 103 and (re)asserting the Community's powers of review.

AG Maduro (in his Opinion delivered 16 January 2008) believes that the Community has the right to review the Resolution. He notes a number of eminent cases (e.g. Bosphorus, Schmidberger, Germany v Council, etc) where the European Court has trumped international and inter-state agreements in the name of human rights and the core values upheld by Article 6(1) of the Treaty (with no possible derogation through Article 307(1)).

His more provocative assertions are with regards to the relationship between the European and international legal orders. He notes that to reject the Resolution does not mean that "the Community's municipal legal order and the international legal order pass by each other like ships in the night" (para. 22 of the Opinion). However, he boldly asserts that the "relationship between international law and the Community legal order is governed by the Community legal order itself," meaning that "international law can permeate that legal order only under the conditions set by the constitutional principles of the Community" (para. 24). He notes that although this "may inconvenience the Community and its Member States in their dealings with the international stage, the application of these principles by the Court of Justice is without prejudice to the application of international rules on State responsibility" (para. 39). So, in essence, come and get us!

I am urged to draw your attention to Maduro's use of Aharon Barak's prose from the Supreme Court of Israel at para. 45:

"It is when the cannons roar that we especially need the laws … Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with. There are no “black holes”. … The reason at the foundation of this approach is not only the pragmatic consequence of the political and normative reality. Its roots lie much deeper. It is an expression of the difference between a democratic state fighting for its life and the fighting of terrorists rising up against it. The state fights in the name of the law and in the name of upholding the law. The terrorists fight against the law, while violating it. The war against terrorism is also law’s war against those who rise up against it."

There is an ideological and institutional clash between the Security Council's Resolution and its transposition into Community law, and on the other hand, the institutional authority of the European Court of Justice to review activities undertaken by the supreme body of the 'world government' in the name of championing the virginity of human rights. Instead of separating the political discourse from the ideological struggle of humanity for the protection of "the fundamental values that lie at the basis of the Community legal other"(para. 44), they are left to meddle with each other in the same pot.

If the Court chooses to instrumentalize the 'Kadi' to perpetrate an offensive, it must be willing to pay the incommensurable price of potentially isolating the Community legal jurisdiction, or possibly worse, causing an international uprising.

A direct collision, where 27 states unanimously assert that they are first European Member States, and second, Member States of the UN, seems unlikely. At the utmost extreme, the Court may adopt Maduro's own interpretation by declaring the complimentary nature of the relationship between the two jurisdictions and conceding that "the right to judicial review by an independent tribunal has not been secured at the level of the United Nations" (para. 54).

Any thoughts or anxieties?

(See also the discussion on Opiniojuris.com)

Thursday, 10 January 2008

IHL - Toothless and delegalized in Jerusalem

Bush is visiting Olmert and Abbas in Jerusalem and Ramallah these days to engage in a series of toothless 'tittle tattle' on the jaded, politicized legal questions of Jerusalem, refugees and settlements that sit at the top of the agenda for the resolution of conflict and detangling of events in the region.

Mr. Bush declared this a “historic moment, a historic opportunity” to overcome the deep skepticism here and elsewhere that the peace efforts begun in Annapolis, Md., in November would succeed. (see NYTimes.com)

The senior official added that Israel was determined to continue building in Jerusalem, and that there was no change in the position on the issue despite the rare criticism by America's top diplomat. (see JPost.com)

If east-Jerusalem is not recognized as "occupied territory" under the Fourth Geneva Convention (regardless of the length of the occupation), if the right to return in international law is not afforded to the some 2 million Palestinian refugees, and if the rules of jus in bello pertaining to the conduct of the occupying power are not enforced, there is absolutely no place for soft, leaky diplomatic chatter. Or is there?

The aged state of international humanitarian law (IHL) has been a topic for debate in recent years with the emerging face of the twenty-first-century armed conflict (i.e. state against non-state actor). It's body being not only unsuitable for the traditional IHL outfit, but has further ripped this traditional outfit apart exposing its inherent deficiencies in operability.

In creating and maintaining the 'big prison', i.e. the Gaza Strip, for the past two years the Israeli authorities have been supported by American officials that had chosen to endorse 'national security' and 'the fight against terrorism' to negate hard rights, obligations and soft politico-legal agreements that today form the very creature of IHL and international human rights law.

Before the law is applied by both sides, even in the very denuded state in which it is found today, delegalised politics is a means for reinforcing the present state of paralysis and rejecting the validity of the fundamental aspirations of the international community for its peaceful coexistence and collective struggle against the horrors with which it is presently faced.

Thursday, 3 January 2008

International human wrongs in Kenya

The death toll is exceeding the 300s as the Kenyan people continue to fight against what was an openly rigged election process in dire hope to grab hold of what is left of their fundamental civil and political rights. The world is watching in awe.

Is this not an appropriate time to ask ourselves, the international community of state, non-state actors and individuals, a number of critical questions: where have the politico-legal norms for a fair and free election process originated (if not Western societies)? Why have the monitoring teams representing the European Union, and a considerable number of IGOs and NGOs disappeared in the midst of all this chaos? and Who is going to be the catalyst to bring about, if not at the very least support, the securing of peace in a nation found today in profound turmoil and despair.

The international system of governance has once again reaffirmed its state of utter impotence. Not even the UN Security Council reacts to the atrocities, let alone the UNHCHR and its organs. Our best bet, we seem to believe, is to leave them be altogether. Refraining from arousing even regional conversations amongst the African nations we choose to remain in our barracks, numbed by the lessons we think we should have learned from more recent humanitarian interventions. Sadly, still unable to realize that inaction and passivity is sure to secure neither us, nor humanity, a brighter, more stable and promising future.

Kenyans were praised for their utter dedication to the principles of democracy and the political process as they stood in line to the voting polls for hours. An expressive number of organizations and governmental delegations (less Pan-Africanist than expected) were on site to support the process and assure the purity of the demos (or demon in disguise) at work. A case that reminds us more recently of Nigeria and more boldly (remarking the inappropriate nature of such impossible-to-oversee puppet shows) of Iraq.

This is a very sorrowful implication of the unravelling nature of the operation of identity building that Western society has chosen to achieve through the institution of human rights, amongst others. Whose rights and where do they originate? About these we have blatantly forgotten. After all, Kenya today is a mirror of a people, reflecting the face of humanity, that 'want' to express the universal dignity bestowed upon them as human beings on account of their own humanity.