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?

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’

Pierre Makhlouf, Bail for Immigration Detainees
‘Discouraging Immigration’

This is part 1, out of 6, of the footage:



Part 2:
http://www.youtube.com/watch?v=eRtsf-Q3Fto&feature=related
Part 3:
http://www.youtube.com/watch?v=_ipFRTvCoac&feature=related
Part 4:
http://www.youtube.com/watch?v=p3hkgqtcTMk&feature=related
Part 5:
http://www.youtube.com/watch?v=8j6TzzAgr2o&feature=related
And the very penetrating, Part 6:
http://www.youtube.com/watch?v=EYIXdKsyFS0&feature=related

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.

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).

Non-Liquet: Causation is a cosy state of mind

Non-Liquet: Causation is a cosy state of mind

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.

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.