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

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 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


centre info:

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