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:


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).