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.
Friday, 22 February 2008
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.
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:
Most damningly:
Is this it - done and dusted?
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
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
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
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
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)
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.
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.
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.
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