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 The fundamental rules already exist (granted with certain loopholes and outdated elements) and therefore the solution cannot be found in legislating new laws.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.

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.

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.

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)

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.