Corner soul: is freedom of information a human right?

Have we taken freedom of information for granted? The logical corollary to freedom of conscience and freedom of thought, freedom of information is enshrined at constitutional level as a basic civil liberty, ensuring freedom of opinion, independent investigation, the right to dissent, expose facts objectively and sometimes subjectively, creating an informed public owing to journalism the possibility to form a complex and critical opinion of the government they, in democratic societies, choose to represent them. Freedom of information is protected as freedom of speech, freedom of expression, to convey and relate an idea, a belief, a value, a principle and the results of research without fear of retaliation from a government seeking to annihilate opposition. Freedom of information is the freedom of the press; it is the freedom to compare and contrast and conclude what’s best; it is the freedom to figure out what is taking place where we do not have access; it is freedom to understand a world we can’t always see or hear. Freedom of information is not only a link between the public and those who represent it; it is also a link between ourselves, and a link between us and those far away from us and whose fate is somehow, to some extent, in our hands.

More than ever freedom of information is now being restricted, facing secrecy and classification of documentation, arrest and imprisonment of journalists, probe into newspaper access, seizure of personal documentation while in transit, all in the name of the overwhelming and overpowering concept of national security. The overreach of counter terrorism legislation has led to an impossible and seemingly unwinnable war against freedom of information, at a time when whistleblowers do not benefit from the protection of the law despite their clear intent and objective to act as they do in the name of public interest and defense of the collective. When constitutional rights have failed at domestic level, and security no longer ensures the safety of a citizen to access information about their own rights, can we restore freedom of information in its rightful place? Is freedom of information a cornerstone of human rights?

A “touchstone” of democracy

Freedom of information is not a choice by any democratic society to uphold; it is a fundamental right enshrined in international law on the very first United Nations General Assembly (UNGA) in 1946. In its resolution 59 (I), the UN claims “freedom of information is a fundamental human right… The touchstone of all the freedoms to which the United Nations is consecrated.” In a later report established in 1995 for the UN Commission on Human Rights (UNCHR), Abid Hussain explains:

(…) freedom will be bereft of all its effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked.

There lies the suspicion that any violation of freedom of information is an indication, a red flag of further human rights violations to come. This cornerstone of what is merely transparency between a government and the population it represents in order to prevent abuses and declare collective responsibility has been enshrined in the International Covenant on Civil and Political Rights (ICCPR), a 1966 text that aimed to derive civil rights from basic fundamental human rights legislation and ease their transition into domestic law. A Special Rapporteur on Freedom of Opinion declared in 1999 that the ICCPR should suffer no restrictions:

(… ) Emphasizes that everyone has the right to seek, receive and impact information (…) this imposes a positive obligation on Stares to ensure access to information, particularly with regard to information held by Government in all types of storage and retrieval systems (…) as referred to in Article 19 (3) of the ICCPR.

This “right to know” is unequivocal. However, the language of the Special Rapporteur ought to be noted: we understand freedom of information as freedom to receive it – newspaper publication and distribution, television and radio broadcast, online publication – but the Special Rapporteur has also added another component: the right to seek information.  The right to seek information is an important derivative: it means that if one information is not readily available through the regular aforementioned channels, any citizen is within their given right to go and look for it. This involves direct access to information, not simply accessible information. Failure to disclose is not failure to inform; a non-disclosure should be counter-acted by a request to information, under the concept of obligation by a state to respect freedom of information.

Restrictions on freedom of information, however, are tough waters to tread. In the landmark case Miranda v Arizona, the reasoning behind mandatory information of one’s rights was that, without key access to knowing their own rights, “a defendant cannot take a appropriate role in the exercise of those rights”. If freedom of information is a fundamental human right, who are we trying to stop exercising those rights? Like with most modern breaches of human rights, the concept of security has appeared with a notion of public defense and public safety that could only be achieved through covert action. Information about police activities, troops placement, military bases, current investigations and judicial proceedings are restricted from access in order not to obstruct the course of justice. Is it however justice that is being protected when restricting information, or are we keeping it under lock? When it comes to counter terrorism methods, violations are so common and the rhetoric always similar from nation to nation it is becoming sound and acceptable policy to restrict basic civil liberties to be “protected” from an enemy increasingly knowledgeable and ubiquitous. However, this belief is peppered with cases of abuse of those restrictions.

The Guardian headline following the detention of David Miranda

The arrest and detention of David Miranda: information as terrorism 

Glenn Greenwald, the journalist who revealed to London-based newspaper The Guardian the extent of Edward Snowden’s leaks regarding unlawful surveillance of American and European citizens by the National Security Agency (NSA), has suffered much intimidation from the American government since he first started to cover the story. Recently, his own partner, David Miranda, was transiting through Heathrow Airport in London and was arrested then detained for 9 hours under the Anti Terrorism, Crime and Security Act (ATCSA). Amnesty International called the operation “unwarranted and unlawful”. It was.

Voted in 2001, the ATCSA allowed for indefinite detention without charge for individuals arrested on suspicion of terrorism activities. They were considered too dangerous to be released into the public. Under non-terrorism charges, British law requires a maximum of 24 hours of detention, under proof of reasonable suspicion. Suspicion of terrorism does not cover solely the fact of committing an offense; it also refers to detaining information related to that alleged offense. Any failure to provide said information to the authorities is considered an act of terrorism. If Edward Snowden is currently under asylum in Russia and has seen his passport revoked, Glenn Greenwald – and by extension David Miranda – have never been suspected of terrorist activities. However, section 1 of the ATCSA refers to “use of threat of action … (b) designed to influence the government or an international governmental organisation, or to intimidate the public or a section of the public; (c) made for the purpose of advancing a political, religious or ideological cause. ”

The European Court of Human Rights has emitted various reserves as to the vote of the ATCSA. Dissenters of the act itself have claimed that its definition of what constitutes terrorism was too broad. Powers granted to law enforcement under this act are also in direct violation of fundamental rights. In the case of David Miranda, the seizure of his property – in this case, laptop, hard drives, USB keys – were covered by para. 3, sect. 5 granting power of seizure of objects when police “has reasonable grounds to believe (they) will be of substantial value”. This reinforces the belief that in Miranda’s case, information is terrorism, since all the powers used against him were granted by the ATCSA (as opposed to, say, the Computer Misuse Act of 2009 that could have covered any WikiLeaks-related charges).  S. 1 of an updated ATCSA from 2006 creates an offense out of publishing “(…) a statement that is understood as direct, indirect or inducement to the commission, predation or instigation to acts of terrorism.” A year later, complaints that the section was way too vague and was in breach of Article 10 of the European Convention on Human Rights (ECHR) regarding freedom of information were made. They were met with the concept of national security, a justification for human rights restriction. Problem is, in the United Kingdom as in the former colony of the United States, what constitutes an issue of national security isn’t clear.

Definition of what constitutes secrecy in Britain falls under five criteria: defense of the realm, prosecution of war, disposition of armed forces, weapons of mass destruction, and last but not least, activities of security and intelligence services, that already had The Guardian in hot judicial waters (Attorney-General v The Guardian Newspapers Ltd, 1988). Recently, those counter-arguments to freedom of information claiming that the free-flow of information, through whistleblowing or leaking, is detrimental to national security have been the cornerstone of domestic policy on surveillance. Because european and by extension international law are laws created by states and implemented by states, restrictions are also implemented by same states for their safety: restriction on Article 10 is in its own section 2, where freedom of information is restricted in matters of national security regarding “territorial integrity or public safety”. (see the Spycatcher case). As established before, fundamental rights guaranteed by statutes similar to Article 10 should not be restricted and any restrictions are to be “checked”.

In Sunday Times v United Kingdom (1979), this national security “necessity” was defined by a “pressing social need” and subject to overall european supervision. In various injunctions made in 1986 and 1987 against the Guardian and the Observer, there was question of whether the protection of national security was “sufficient” to justify the imposed restriction. National security does not, inherently and intrisically, become a justification against civil liberties. It is not a direct counter argument. The two can perfectly coexist without asking for jurisprudence to create a norm. Courts’ opinions shifted over time, while outrage over the Prevention of Terrorism Acts (PTAs) of the 1970s and their dire consequences on “irish terrorism” morphed into the response to a more global, less focused ATCSA. Two criteria remain: sufficient prohibition and proportionate reaction in the injunctions made against freedom of information and freedom of the press. It is abundantly clear at this point that neither of these criteria and none of the aforementioned barriers of protection have been applied in the detention of David Miranda.

Whether free-flow of information can actually present an issue in the case of government and – as in seen recently in the Chelsea Manning case – military whistleblowers is a question of “damaging disclosure”: is the information being published and distributed presenting a real risk to deployed troops, law enforcement operations or diplomatic relations? There is no standard. The government in place at the time places the bar on what it considers to be damaging, what it sees as being a disclosure and what it believes should be classified. In two landmark decisions in Britain (Guardian v United Kingdom, 1992 and R v Shayler, 2002) the extent of the damage is challenged by the concept of “public interest”. Civil liberties – as in the right to seek and receive information as a citizen – is perceived as being equal, if not superior, to the notion of classification due to security. If the population can benefit from an information being disclosed, and can take action for or against a policy as a direct result of the presented information, the notion of damage due to disclosure no longer stands.

Then and now

Death or better days: on the legal protection of whistleblowers, pt. 2

This is the importance of whistleblowing: this is where the core of the debate is. Who benefits the most from leaks being published online? Who is using this information, often presented in a format non easily accessible to non-knowledgeable members of the public? More importantly, what will be the population’s reaction to this information? If there is no such thing as a citizenry presented as a smooth, fluid, homogeneous entity, a reaction can be strong, vocal, and sometimes violent. If a government is attempting to protect itself from popular opposition, ranging from ousting at the next election to overthrowing the regime, it will of course consider the disclosure as damaging. It is in the nature of power to protect itself from what could harm it. Aristotle said it was in human nature to seek knowledge. In the question of freedom of information, it is therefore in the nature of a healthy, democratic and hopefully open society to constantly interact in a state of friction between state interests and civil liberties. If what we hope to achieve one day is complete superiority and unchallenged state of fundamental rights, it will have to be in a representative executive body that never classifies information, never operates under secrecy, and never takes a quizzical look at its domestic newspapers. Has it ever existed?

If friction is mandatory, if it must exists to keep power in place for representative purposes – but keep power constantly questioned and challenged, then friction will be maintained, arbitrated by judicial powers, provided they are not asked to uphold laws themselves not in accordance with the supraconstitutional or supranational ideals they have implemented. Britain will be answering to the European Court of Human Rights one more time in the case of David Miranda; the United States have already witnessed a titanic combat of legal wits when David Coombs, attorney to Chelsea Manning, attempted to explain to Judge Denise Lind the importance and responsibility incumbent to any citizen to hold crimes accountable. The contempt and disdain portrayed by Lind during her interaction with the defense counsel have not done the concept of judicial impartiality any justice. When Coombs tried his hardest to create a space for friction and even provoke it by extending the domain of the conversation on not just the means employed to leak information, but the very reasoning behind Chelsea Manning’s actions, a hand was raised as if to silence the broader implications of disclosure. If freedom of information is a human right, it has both a negative and a positive corollary. On the positive, it can be claimed, and obtained, by any citizen wishing to access information. On the negative, it forces an obligation upon the state to not only let information circulate, but also to provide access, and never restrict it. It is an active force, that creates obligations that are hardly ever met, as civil liberties are more and more restricted, only challenged when met with forcible judicial opposition by concerned parties. The only way we can make freedom of information a pro-active right again and impose the negative upon the state is to stay in a constant situation of alertness, and remain aware that restrictions are being implemented to intimidate anyone seeking information. It may be difficult to discern restrictions placed upon the daily circulation of information, as so many mediums are now competing to grab our attention, on relatively relevant issues.

It is important to keep in mind that above all, freedom of information is maintained and kept by journalists and writers, researchers, not simple pawns on the chessboard of civil liberties, but active agents who are protected at the highest level – by the Geneva Convention. Any restriction on the access to information by a journalist, any intimidation formed against them – or their close ones – in order to unlawfully seize the information they possess, halt the publication of an opinion or a fact, destroy collected data, block a server, or worse, physically restrain them by putting them in a prison cell is not just an attack on a profession, it’s an attack on a civil liberty, on a fundamental cornerstone of democracy, and a human right.

 

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There’s a lot of things, if I could I’d rearrange: on Bradley Manning pt 2

Yesterday, during its closing arguments, prosecution against Pfc. Bradley Manning said the following: “If youbetray your country, you do not deserve the mercy of a court of law.” 

Prosecution has obviously very little and extremely restrictive understanding of what constitutes the law, what constitutes one’s own country, or what it takes to “betray” it.

…No, it isn’t heads or tails. Whatever happens, it is by my agency that everything must happen. Even if he let himself be carried off, in helplessness and in despair, even if he let himself  be carried off like an old sack of coal, he would have chosen his own damnation: he was free, free in every way, free to behave like a fool or a machine, free to accept, free to refuse, free to equivocate: to marry, to give up the game, to drag this dead weight about with him for years to come. He could do what he liked, no one had the right to advise him, there would be for him no Good nor Evil unless he brought them into being…condemned forever to be free.

Bradley Manning was given the opportunity to read a statement to Judge Lind, to the court, to the press that was covering his “trial”, to the Wikileaks presence, to anyone in the world who would lend an ear and listened. It has been deemed an apology, because he did use the words “I am sorry”, but what I read through it is the sorrow of a young man who realised he may have fallen on deaf ears. It is our responsibility to make Bradley Manning understand that his actions and his years in solitary confinement have not been in vain.

Bradley Manning is sorry; sorry to have hurt the Department of Defence, as if it was a homogenuous entity that could feel, that could love and hurt, that could make decisions according to a conscience it has several times during the trial referred to as a disease. He is sorry to have hurt the United States; another blanket identity that is neither social nor political, neither free nor enslaved, neither clean nor unclean, neither faithful nor a traitor. There is no heads or tail in the Bradley Manning situation; there is no right and there is no wrong, there is simply a path that has been seen, perceived, understood to be the one to take at one specific situation in space and time. A path that clearly has been qualified as unlawful and unauthorized, that has warranted the arrest of a 22 years old young man whose identity he did not even know, and his confinement in conditions that have been decried over the years. If Bradley Manning has anything to be sorry about, it’s having to be there on this stand, inside a uniform that somehow seems too big for him, his frail shoulders barely carrying a gaunt face, eyes too young to truly belong to someone who has gone through the tribulations of answering to their own government, a government at war, in a perpetual, global, endless, ubiquitous, and dirty war. Bradley Manning is apologizing so we don’t have to.

The hardest concept to probably grasp as a citizen and, even more so, a member of the armed forces is the consequences of one’s actions, the responsibility that goes with carrying them through, seeing them through and bearing the burden of their long-lasting repercussions. Bradley Manning believes he did not intend for his disclosure of information to go that far. This will always be debated, and this historical situation will clearly not have a collectively agreed-upon resolve or any sort of closure anytime soon. There is no way of knowing whether releasing footage of cables and their international consequences on western armed forces forcing their way through various battlefields had been foreseen by someone barely out of their teens and not even well-versed into geopolitics.  The constant attempt to establish mens rea by the prosecution just fell short of understanding what type of character Bradley Manning is, through lame and insulting means of defaming his identity, insulting his intelligence, and bereaving his family. The question surrounding whistleblowing should never be “how”; disclosure of classified information is just as much a question of information surrounding secrecy. It’s not about contacting Julian Assange or using Wikileaks, which is merely a platform that exposes rather than explains, displays rather than deducts, and supposes rather than proposes. Whistleblowing is about the why. It’s about why this information is so critical to the US Government that they’re willing to imprison a young man for life and isolate him from any support he could possibly get, until his hypothetical future remorse eats him alive.

In the state I was in, if someone had come and told me I could go home quietly, that they would leave me my life whole, it would have left me cold: several hours or several years of waiting is all the same when you have lost the illusion of being eternal.

His apology was just as much of a question. If he referred to “broader consequences” of his actions – beyond his regimen, beyond his military, beyond the territorial borders of the United States – with the vague, flimsy and clearly fluid grasp that one could hope to have in an era of extraterritoriality – Manning provided a statement that could just as well be ended with a question mark as it did a period. Manning asked, out loud, how he could have ever thought he could “change the world for the better”. Prosecution was right: Manning is conscience-afflicted. Even after three years of detention, of isolation, of confinement and humiliation, Manning is still asking the one question that motivates every single individual, regardless of their race, gender, creed, profession, or better yet, country of citizenship: what could they possibly do, as citizens of a world they no longer understand, to make a profound and lasting impact on the future generations? What means do we have at our disposal, lawful or otherwise, to enact those changes and enshrine them so they are respected? There are no whistleblowers in the military because armed forces have a goal. They have a clear objective, and they abide by it. There are given orders, and a narrative, and they stick to it, as they force themselves through hostile territories, uncertainty, sudden drop in life expectancy, and the dull yet piercing sound of a grenade exploding nearby. We have to provide our foot soldiers with a story broad enough to encompass the stench of rotting dead bodies and the despair of a seemingly endless tour. We have to let our soldiers know there is a reason. If any citizen living in peace time is entitled to live a life free of strategy and focus, if so is their wish, a soldier is tied to action through pure, absolute necessity. Manning questioned that necessity. Manning questioned the resolve, unjustified the body count, and defaced the national modus operandi surrounding the wars it was spreading like wild fire. Manning may not know if there is a reason to live, but he knew there was no reason to die.

It’s strange what confinement does to inmates. Truth is manipulated and distorted until guilt, even an artificial one, seeps in. In solitary, where no one can confront one’s truth to their own, one’s story to their own, or cross-examine information received through the unilateral communication of their defence counsel, we try to understand the reason why we’re here. Punishment needs to be understood. We need to, somehow, have done something to deserve it. What the prosecution tried to make Bradley Manning understand through this whole ordeal is that no one was suing him because they wanted to, out of sheer sadism, or because they were the apparatus of a tyrannical regime. They enshrouded themselves – falsely, absolutely falsely – into the legitimacy of the law so their actions against Manning would gain the authority they would otherwise not obtain. A Kafka novel based on judge, judgement and execution, “In the penal colony”, offers the scene of a journalist coming to explore a penal colony in a faraway land, in which a Commandant had enforced a strange but apparently effective means of punishing his inmates: the Harrow. The explorer, having never seen penal reformation before, had questions, but the Commandant always shakes them off, with staunch certainty, claiming, “My guiding principle is this: Guilt is never to be doubted. Other courts cannot follow that principle, for they consist of several opinions and have higher courts to scrutinize them. That is not the case here, or at least, it was not the case in the former commandant’s time.” In other words, unless we believe in the guilt of those judged guilty and sentenced to pain as a result of their guilt, we would not be able to stand it. We must conform to the idea of justice as it performed, otherwise there is no justice at all. As the inmate slowly dies on the torture machine, the Commandant tells the journalist: “it reads, ‘be just’. Surely you can see it now.”

Manning through his young, unsteady hand through the looking-glass of what is essentially an underground society. On one hand, are the actions performed by the government abroad, or even domestically, that must perdure in order to ensure its own perenniality. That those actions are condemned by law, domestically or abroad, does not matter, because the law, by definition, is accessed in a public forum, for the people, as written by the people, and enacted by their own peers. The law is not an instrument of secrecy; it must be accessible to all, because ignorantia juris non excusat. Trying to skirt around the law, walk around it, manipulate it, reword it, reframe it, rewrite it in order to benefit from it instead of using as a tool for blind equality is something any citizen should worry about and pay attention to. Alexa O’Brien, one of the few reporters covering the Manning case, has been extremely vocal about the lack of access to not only military law,  which she has been instrumental to deliver to each and every one that followed her – but also the inner workings of the court, Judge Lind, the prosecution, and the situation the defense counsel, David Coombs, was in. A government is yet another tool of the people. It should never force itself or be forced underground under the false pretense of security. There is no such thing as brutal use of force for someone else’s own good, let alone the collective. Freedom of information is the bedrock on which a functioning democracy is based on, and never as much as in the Manning case has the rule of law found such a strong ally as in independent journalism. Manning has been guilty of revealing that justice has been obstructed; O’Brien has taken upon herself, and on her own, to give it a voice, to give Manning a voice, to stand up against the wall of silence we are now facing when entering a court of law.

Manning’s very existence is the contradiction to the prosecution’s statement. Manning did not betray his country; he may have, if so is allowed, betray his country’s interests, and surely there is a penalty for that, but a penalty on halting benefits and hindering mass murder should not carry the life of a man who has barely seen sunlight in years. Manning, regardless of who he is, regardless of where he stands, regardless of what he has done, is, and should be, always, safe in a court of law, to stand, to speak, to provide instruments to his own defense, and be judged by his peers. And judged he has been; through a free-flow of dubious, questionable and extremely biased information; through a chaotic attempt at securing support outside of regular channels; through an increasingly vocal and gracefully, happily, thankful presence of an international community that has seen in Manning the hope of – not stopping the Empire, but simply being a grain of sand in the whirring wheel. Manning held a mirror to Judge Lind, who could barely make any shapes in the reflection, so far away she stands from the broader consequences Manning was referring to. The consequences of Manning’s actions reach far away and beyond the narrow and obsolete statutes of military courts. They belong to any self-empowering, self-respecting international institution that has seen the United States ratify treaty after treaty securing the civil and political rights of all, respecting national sovereignty of foreign governments, and maintaining the world safe from aggression and upholding the sanctity of life. The Manning pill must be a bitter one to swallow; but I will never forget the steel-like, blood-like taste in my mouth the moment I read that line.

A court of law does not provide mercy, or inflict punishment. A court of law only provides what is fair based on presented evidence. A court of law is not an instrument of intimidation, it is an instrument of equality. May those prosecuting Manning for having faith in beliefs he does not even know he holds dear fall short of ever seeing the inside of an international criminal court. Manning will be sentenced, and he will purge his sentence; he may appeal, and the circuit might go all the way to the almighty Supreme Court, where the very definition of the role of a court of law might be once again redefined by a select few who hopefully will have a better grasp on the way a nation is going, once it has violated every principle it once stood for, and once it has betrayed the international community by hiding its actions in plain sight.

Manning did not betray his country; he rose above it.

Charlie don’t surf: on international jurisdiction and internal conflict

This week, after the massacre in Rabaa, Egypt, human rights lawyers have declared universal jurisdiction over the military abuses of the civilian population since the coup. If universal jurisdiction over international armed conflict is not a new concept, claiming it over an internal conflict that is still emerging – even if rapidly escalating and growing in intensity – is relatively revolutionary. International law has going for it that its constant expansion, the recent proliferation of human rights (in both positive and negative lights) and the increasing involvement of the United Nations Security Council (UNSC) in foreign affairs have made it possible to create new legal norms, going far and beyond the responsibility to protect. Universal jurisdiction is the right of third states – states not parties to an international armed conflict, insofar as current legislation – that have no territoriality or nationality, or even “protective principle” links with either offender or victim, to prosecute those who commit violations of the law of war. If there is established jurisdiction of the International Criminal Court (ICC) and International Military Tribunal (IMT) to prosecute violations of the Geneva Conventions, Hague Convention, or the Treaty of Rome, can human rights lawyers actually claim jurisdiction in an undefined internal armed conflict? Based on Theodore Meron’s 1995 commentary on international criminalization of internal atrocities, we provide an outlook.

From international tribunals to international jurisdiction: Nüremberg to Rwanda

International criminal law is a concept that was birthed as the same time that nations started war; it only emerged as a binding concept in the dawn of the Twentieth Century, and has seen a massive, normative expansion over the first international conflict, World War One, that gave birth to additional Geneva protocols. In 1944, however, as the Allied Forces started preparing for the aftermath of the Axis surrender, the necessity to rebuild, and the complexity of indicting Nazi war criminals, a clause emerged – known as the Martens clause, which later became the preamble to the Hague Convention:

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them (and annexed to the Convention), the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience.

The writing of the UN Charter, its adoption by member states, the creation of the UNSC, and other deferent institutions are hereby born from “dictates of public conscience”, a norm that has governed the expansion of international criminal law. The very concept of human rights law was derived from the Nüremberg Charter, a tribunal which in itself was a criminal violation of the principle of nullen crimen sine lege. However, the reaction to the liberation of Nazi camps, the extent of the Nazi horror, the repeated crimes of aggression against sovereign states as early as 1934, the violation of international treaties, and basic stampede of the law of war as well as Geneva protocols called for extraordinary measures, which led to an extraordinary tribunal. Through the Nüremberg norm, it exposed the possibility of prosecution of crimes ex juris gentium, outside of natural law. Despite the historical bloodshed of World War One and the rampant inhumanity of the Nazi regime, atrocities have since then blossomed all over the globe and spurned a necessary and fast adjustement of international law.

It is not admitted, nor necessary, for international violations to be international crimes, and for violations of international law to be prosecuted under international tribunals only.  Article 129 (3) of the Third Geneva Convention clearly indicates that all member states

… shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches.

Following this rule, grave breaches of international law are focusing on breaches of the law of war in international armed conflict, such as the Nüremberg charter: war crimes, genocide, and crime against humanity. Two specific instances of armed conflict however managed to challenge the legal community on the ground it was standing on, due to the unique nature of the crimes committed, and the complexity of qualifying an armed conflict international or not, and falling under the restrictions of the law of war, if such a war is, according to international law, taking place.

The first ad hoc international tribunal relative to the war in Bosnia-Herzegovina, The International Tribunal for Yugoslavia, expanded on the idea that war crimes could be prosecuted at customary international law level. Draper, a law scholar who extensively wrote about the legal right of a belligerent party to try war crimes, concluded that the Nüremberg process, in itself, protected the interests of the co-belligerents. The main issue of the Nüremberg Trials was that they represented yet another manifestation of winner’s victory, not just in the seats present at the UNSC, but the somehow moral right of the winner of a war to not only declare the losers criminals, but to prosecute them under an international law they created, ex post facto, adding to the burden of the losing side of the war, made heavy by occupation and later separation. If there is universal recognition of the law of war in a post World War 2 world, and war crimes are crimes against natural law – prosecution of war crimes is by extension justified under international law. Creating the possibility of a third state, or a third party – through an international tribunal, usually set up ad hoc by the international community – is an attempt at skirting away the possibility of international law reinforcing the national interest of a co-belligerent that would benefit from the prosecution, instead of accessing it for the respect of natural law.

Extension du domaine de la lutte

The Secretary-General commentary on the Article 5 of the Yugoslavia statute, which is an extension of the definition of crimes against humanity established by Nüremberg. Until Yugoslavia, the question of whether crimes could be prosecuted under war crimes legislation was framed by the Chapter VII of the UN Charter. This clearly implied that war crimes as such could only be committed as “threats to peace” or “crimes of aggression”, limiting the prosecution of war crimes to international armed conflict. It is important at this stage to acknowledge that human rights violations do not happen in a vacuum. There are a manifestation of a broader socio-political issue on the international and national stage. Prosecuting a war crime solely based on its statutes as restricted per the Chapter VII will not eliminate the conflict that brought those abuses to light, or be in the direct path of conflict resolution. They will simply be a manifestation of the right to prosecute a crime as defined per law, and once the offender, if found guilty, is punished, abuses can either continue – being picked up where they left off – or leave the victims in a situation in which not only their lives will not be remedied, but their issues not be addressed on a wider scale. It was necessary, in the context of the IMT on Yugoslavia, to encompass a political situation as well as violations of humanitarian, human rights, and war laws for the IMT to provide the safety the population needed. Article 5 of the Yugoslavia Statute expanded and offered that those crimes could also take place outside of an international armed conflict and/or a declared war. If the statute itself does not expand the jurisdiction, it gave the Tribunal the opportunity to be later referred to as an expansion on the prosecution of war crimes. Because accessing war crimes as outside of war was an extremely vague concept, Article 5 required that such crimes were “committed in armed conflict, international or internal in character, and directed against any civilian population…” Including the burden of proof of actually directing the violence against any civilian population – in a widespread and systematic way, as defined by Nüremberg – may increase the difficulty of characterizing a human rights violation as a war crimes that can be prosecuted under international law. That this addendum was written by the then-Secretary General of the UN begets the question of whether the UNSC itself is actually capable of completely working outside of the national interests of its member parties.

A commentary on Article 20 of the Draft Statute for the ICC reads as such:

… The term “directed against any civilian population” should be taken to refer to acts committed as part of a widespread and systematic attack against a civilian population on a national, political, ethnic, racial or religious grounds. The particular acts referred to in the definition are acts deliberately committed as part of such an attack.

Another historical change was made by the ad hoc tribunal on Rwanda. In article 4, universal jurisdiction over crimes against humanity was clearly asserted:

The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to: a) violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; b) collective punishments; c) taking of hostages; d) acts of terrorism; e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; f) pillage; g) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples; h) threat to commit any of the foregoing acts.

This extremely extensive definition of crimes against humanity – going as far as extending jurisdiction not only over political violence, but threats of violence – is the bedrock for what is now universal jurisdiction over war crimes. It asserts that any violation of the Geneva Protocols and Hague Conventions are subject to prosecution by third states or third parties, and that crimes are not only defined, but also expandable to any “violence to life”, as well as crimes defined in conventions regarding non international armed conflict. But if this created the norm for prosecution, it didn’t create the norm for criminality.

Signing of the first Geneva Convention

International committees tried their hardest to steer clear of expansive universal jurisdiction over criminality of human rights violations, and even in the draft for the Yugoslavia Tribunal, asserted that the only crimes one could claim universal jurisdiction over were crimes committed in international armed conflict. It was clear to the commission that, for a tribunal to claim jurisdiction, an existing treaty or convention should already be in existence to establish the crime – nullen crimen sine lege – or that the tribunal stuck to the concept of aut dedere aut judicare, but once again, applying to war situations only (“… it must be observed that the violations of laws (…) are offenses committed in international, but not an internal armed conflict”. The grip of national sovereignty and the absolute necessity to respect the legality of a state to act as it wishes within its own borders as per Article 2 of the UN Charter seemed to be more important than extending the domain of international law. However, a 1994 UN Document is reinserting the principles enunciated in the Martens clause:

“… the content of customary law applicable to internal armed conflict is debatable. As a result, (…) the only offences committed in internal armed conflict for which universal jurisdiction exists are ‘crimes against humanity’ and genocide, which apply irrespective of the conflicts’ classification.”

It will take time to extend universal jurisdiction to war crimes, but the immorality of crimes committed against human life, referring to the question of international concern and a duty to act against atrocities, is more and more prevalent.

We are tired of the tune; you must not relent

The legal concept of de minimis non curat lex never applies in a more relevant way than it does in international law; one of the reasons advanced for explaining why international criminal law and the commissions created to explain, expand, or interpret it do not extend further from the Nüremberg principles and the Additional Protocol II was because, according to the Commission, it is not supposed to “authoritatively codify crimes under international law”. The matter of international concern, however, remains an ongoing question. Atrocities committed in conflict have not ceased after the creation of the UNSC, and Yugoslavia and Rwanda were, if egregiously outstanding conflicts, not happening in a situation of peacetime on the planet. The explosion of the Soviet empire brought nothing but more internal conflict on european and caucasian soil, and the African continent has been plagued by turf wars spurning from constant interference from previous colonial powers. If there is such a thing as an international community as was defined in the weeks before the League of Nations in 1918, there is a moral obligation to not only enforce these crimes in international law not with just jurisdiction, but criminality; not simply provide an international ad hoc tribunal, but empower domestic courts with the resources to prosecute crimes under international law on their soil; and to denounce atrocities as such when they take place, and take appropriate counsel.

As Theodor Meron said in his exposé on universal jurisdiction, “there is no moral justification, and no truly persuasive legal reason, for treating perpetrators of atrocities in internal conflicts more leniently than those engaged in international wars.”

Individual responsibility engaged at domestic criminal level can be engaged at international level; if states are engaged in responsibility over their actions in international armed conflict, as a nation declaring war, engaging troops, and ordering crimes of aggression, in an internal conflict, even more so, are individuals responsible for ordering crimes and committing them. It was not Germany as a state that was liable during the Nüremberg Trials; it was Nazi leaders and high-ranking officers facing trial. The International Criminal Court has attempted to hold Slobodan Milosevic responsible for the crimes committed in Bosnia; and those named “warlords” worldwide are no less criminal than those engaged on man-to-man homicide. Murder remains murder regardless of the scale of the action; acts of violence and disrespect of human life are crimes regardless of the territoriality and the nationality of the victims; crimes against humanity are perpetrated by men made of flesh and blood, regardless of the body instauring the situation in which those crimes are committed. “Crimes against international law are committed by men, not by abstract entities; and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” (Nüremberg document, OD 223, 1947).

Afghanistan. Still from the documentary “Dirty Wars” (dirtywars.org)

Ratifying an international treaty endorses provision of said treaty in domestic law; it has therefore been encouraged to try war crimes at national level, even if states usually lack the resources to actually perform the prosecution at the time a conflict emerges. However, several states have either laws or military manuals reflecting provisions for the prosecution of crimes under international law (such as Canada, or the British War Crimes Act of 1991). It is important to recognize however that, despite the wide range of states party to treaties as important as the 1975 Convention Against Torture, the unwillingness to prosecute those breaches of the law under national courts is a display of reservation against international law, or perhaps, the unwillingness to participate in the judicial superiority of international law when said state is itself taking part in violation of the law, through its foreign or domestic policy. If proliferation of international covenants protecting civil and political rights in nation-states have flourished after the end of the Cold War, covert actions by intelligence agents or secret wars waged outside of territory of declared war have made the possibility and opportunity of using domestic courts for violation of international crimes difficult. National ministers of Justice seem reluctant to perform acts against nation-states that could later be performed against them for acts of the very same nature. It seems that in those situations only international jurisdictions could have the morality and lack of self-interest to prosecute each state as equal parties to the violation of a, or several, crime(s).

But if the dictates of public conscience should be a paramount concern to every nation-state, there is a difference still being made between a “grave breach” of international law, and “other breaches” made to those conventions. Those “grave breaches”, covering genocide and crimes against humanity, carry with them the obligation of the states party to the treaties to prosecute those crimes. The international community formed around the signature and ratification of those treaties is forced, by the legal binding convention, to bring perpetrators to justice for committing those crimes. Creation of ad hoc tribunals and the hope residing in the permanent existence of the ICC have made this obligation a reality, provided that member states comply with necessary investigations into those crimes and allow impartial rapporteurs and legal workers to bring the information to the court(s). However, what is reluctantly called “lesser”, or “other breaches” to the Convention – namely the Geneva Protocols, such as war crimes and crimes of aggression – do not carry an obligation. The jurisdiction covered for those crimes is a right, which indicates that the law permits the possibility of prosecuting those crimes, if the states so wish. It does not in any case carry an obligation to do so.

It is dangerous and pervasive to establish a distinction and a hierarchy between what constitutes obligation of prosecution under violations of the Geneva Protocols. Those conventions – and additional annexes, following conventions such as the previously mentioned CAT and the so revered ICCPR – have become normative over the years and carry with them an idea of international justice and the hope of all peoples to be not only protected by the principle of self-determination, but never again to be isolated, set aside from the international community and suffering in silence while the rest of the world sits idly by. The creation of the UNSC in itself represents the wish that all 125 member states be finally cognisant of the importance of the human life, regardless of territoriality or nationality. Internal conflicts are no less harmful to the international community than a war is; in an era of wide globalisation and easiness of transit of peoples, there is no possible alienation of pain, strife, tension and despair; and there is hope in the expansion of international criminal and individual responsibility hitherto that no acts of violence be committed in immunity and impunity. There is fear in the restriction placed over universal jurisdiction; there is concern over the expansion of prosecution of war crimes in international courts. On one hand, the world is tending towards human rights proliferation, towards extension of justice, towards accessibility to freedom, towards globalisation of civil rights. On the other hand, nation-states and governments feel threatened by infringement of the law on their sovereignty, by the criminalisation of their actions against their own population, and by the limitless statute of crimes against humanity. One would argue that governments should indeed live in fear of international criminal law; that it exists so our past never haunts us again, and the ghosts of paramilitary action from Nicaragua to Northern Ireland never feels the cold steel of governmental collusion ever again. One would argue that the very creation of the Article 4 of the Rwanda Statute is what will guarantee a safety net against inhumane actions.

But sovereignty remains sovereign. It took two and a half years for the international community to finally question the events in Syria. It took a death toll of over 600 people in the course of a single day for the community to universally condemn the perpetrators of the massacre in Rabaa. Condemnation of an act is neither the prosecution or the sentencing of said act; it is barely even the acknowledgement of this act as a crime. International law will always be hindered by strategic placement of a given nation in the trade-offs that are geopolitics; in the sacred borders that this country holds next to other conflict zones; in what this country can bring to another nation, under the promise that it will be set free from the legal binding of an international treaty. International law has jurisdiction over internal conflict if we let it. International law will persevere and prevail if the international community finds it within itself to accept the infringement on national sovereignty and recognize the supremacy of the human life. The era of nation-states is now questioned. And it is now questioned in front of those very nations, those happy few, sitting at the UNSC, the only international body that can authoritatively extend this right.

And we stand, and we wait, for national interest to finally fall below jus gentium.

Western foreign policy in Egypt caught between realpolitik and ballotocracy

At the time of publication, Egypt is still counting its dead, among which journalists and christian church worshippers. The Egyptian military’s massacre in Rabaa is following the failure of American and European diplomatic efforts, the ousting of President Morsi, and general political instability since the first political protests in November 2011. The international outrage at the events unfolding in front of our very eyes can not match the reaction of Egyptians. We talked to Nelly Corbel, a Cairo-based political scientist.

On wednesday August 14, the Egyptian security forces moved to disperse the two months long sit-ins in support of former President Morsi after repeated and delayed ultimatums. The dispersal of the two protests led to widespread violence across the country from street battles to sectarian attacks. An emergency law was declared and a curfew put in place.

The powerful images coming out of Egypt brought worldwide attention, questions and outrage: what happened? how did we get to this? This is what military coup lead to! Like Sarah Kay, many feel confused and appalled. How can the West, namely the EU and the US condone the military coup; it was an evidence that a military coup would lead to such carnage. The West was too weak in their visits to the post- July 3rd government.

My question to them is: what could they have done?

Lets step back to take a look at specific events in Egypt’s last year and the international relations at play in the region since the ‘Arab Spring’.

The constitutional debacle

In November 2012, former President Morsi issues a decree giving himself absolute powers including those over the judiciary and reinstating emergency law under a new name to allow him to clean the state from old regime remains. Upheaval by revolutionary groups is immediate. The country witnesses nationwide protests, Human rights groups, syndicates and civil society condemn the decree and a sit in settles in front of the presidential palace asking for the removal of the decree.

The response from the Presidency and the Muslim Brotherhood comes in a two-fold action: the sit-in is violently dispersed with no warning by militia and the president reminds the decree will be cancelled as soon as the new constitution is ratified.

Therefore the drafting of the constitution which had been debated for over two years with numerous councils created, dissolved and witnessed massive member resignations was approved in an Islamic-leaning constitutional committee. A draft is agreed upon overnight. Two weeks were given to the citizens to prepare for the referendum over the highly controversial draft. Finally the constitution is ratified by some 60% of ‘yes’ from a third of eligible voters. Egypt moves on with a constitutional process led through a majority rule and no efforts for consensus building in a divided country.

This turning point in Morsi’s presidency was very weakly addressed by the international community, partly because a few days earlier he was applauded by the same community as the truce-broker in a heavy conflict on the Gaza strip between Hamas and Israel. The series of political faux pas conducted by the Morsi administration after this never stopped from 24 hour long decrees increasing taxes and removing subsidies over daily goods to the ‘brotherhoodization’ of institutions.

West: between balance of power and ‘ballotocracy’

In light of these events, any sound political analyst could have easily seen the below unfolding.
There are four large political segments: remnants/supporters of the old regime, the powerful military institution who owns over one third of the country’s economy, the Islamic leaning groups with international branches and the revolutionaries.

In the presidential elections the first two voted for Shafiq and the latter two mainly voted for Morsi. The revolutionary forces, which is not homogenous can be considered as the ‘swing group’ who decides at each cross roads based principles rather than because of loyalty to an institution. Their votes will go in favor of an idea or against one.

After the decree, Morsi lost the support of a fairly large portion from this group of voters who ultimately voted against the old regime figure: Shafiq. Since then opposition started organizing against the Muslim Brotherhood, their offices across the country were regularly attacked and the divisions deepened by the lack of genuine dialogue and consensus building from the presidency.

Therefore, in light of the above, western political analysts could have done the math: the revolutionaries who learned from their past failures in elections from a lack of alliance would ally with those who would help them against the MB. In that moment, the West utterly failed at exerting pressure against President Morsi to push him into a deep consensual effort. Rather they turned a bling eye on the situation and the summer 2013 events was a logical consequence within internal Egyptian politics.

Why not pressure Morsi to follow a consensual path?

Egypt is a critical country at the regional and international level:

1 – it’s geographical position between Sudan, Lybia and especially Palestine/Israel
2 – its symbolic importance in influencing regional politics making it an epicenter.

Therefore, dealing with Egypt is a very delicate waltz. After supporting the military regime for decades to insure peace with Israel, the Egyptian uprisings of 2011 has put the West in front of a dilemma. The military took over the transition but elections are taking time. The earlier the elections take place the more evident it is the Muslim Brotherhood will win them. The West stands for the protection of Israel and democracy, so how can it work if the mother group of Hamas comes to power through the ballot? As we say, keep your friends close and your enemies closer. The West therefore chose to prioritize improving relations with the MB as if they were the ultimate result of democracy in Egypt at the very least for the public eye.

This move was a complete miscalculation of the forces at play in Egypt where rule of law is barely practiced and where the military are a force to be reckoned with, not only because of its economic and armed power but also because of it’s symbolic importance in the eyes of a very large portion of the population. The recent call for supporting action against the Pro-Morsi sit in saw hundreds of thousands of supporters in the streets.

Finally, it must be understood that the situation in Syria sent a strong message to dictatorships in the region: the balance of powers are shifting and countries have once more the opportunity to play the West/East alignment game. The full supremacy of the West in the post cold war is over. Proxy wars are very much alive and the West cannot take the risk of loosing Egypt.

Morale of the story: if the West was indeed focused on democracy and a process focused transition, it would have seized its chance when it still had it back in November to pressure the new government in despair for foreign aids to prevent this military intervention. Now Egypt is up for grab again, the balance of power has shifted, the military is once more all powerful and the seduction operation to get Egypt back is on.

 

Nelly Corbel works at the Gerhart Center for Civic Engagement and Philanthropy at the American University in Cairo. She is the Executive Director of the Lazord Foundation. Franco-egyptian, she has been based in Cairo for over five years.

Eleanor Rigby: who has the “right authority” in Northern Ireland?

In its continuous and Sisyphean effort to overcome sectarian violence in Northern Ireland, the Stormont created a commission investigating parades and their importance to local cultural and social life. It appointed Theresa Villiers, Secretary of State, to not only make the decisions as to which parades – loyalist and nationalist combined – were to pass through Northern Irish streets, taking into account local sensitivities and safety concerns. Which is to say, essentially, that Theresa Villiers has been appointed to single-handedly fix the public representation of the northern Irish post-conflict divide in one fell swoop at the head of one commission. I would not want to be Theresa Villiers right now. Dominating news both local and national as a person struggling to find balance and sacrificing her personal life, people seem to forget that Villiers’ job is not an issue of public circulation. It’s an issue of deciding the future of Northern Ireland. It’s terribly unfair and frankly sad to see a woman being empowered with such a daunting and historically-loaded task, while being virtually lapidated for not being immediately successful – or worse, for even being there in the first place. A few things need to be said about Villiers and about her role.

The Parade Commission is more than necessary, no matter how many people feel threatened by its creation.

Parades are an integral part of life in Northern Ireland. They are celebrations, commemorations, anniversaries. That they are to be investigated by an executive body and perhaps halted, suspended or even cancelled is a daunting prospect for community leaders. It means effectively ridding their neighborhood of their annual or bi annual festivities, that they have held in the region for centuries. The Parade Commission is precisely attempting to find the fault line between celebration of what is essentially social identity – but also political identity. There is nothing about any individual placement in Northern Ireland within a certain community that does not hold political bearings. Because those parades are doing just that – parading, which means putting on display for all to see – those political beliefs, it is absolutely important to maintain the peace and safety not only of those parading, but also by those in the communities affected. The nature of most Northern Irish cities – a few blocks held together by zip codes and two way streets, but separated by confession and affiliation – means that the trajectory of the parade is paramount to ensuring stability.

Interface zones, however, can claim belonging to either affiliation, and refuse to be taken hostage by one or the other. And instead of staying away from interface zones, parades insist on walking down those streets and alleys – like Crumlin Road – in an act of defiance that has been characterized as a “culture war”, also known in clear language as “political provocation”. The nature of political identity in Northern Ireland is so not clearly established and left to the two domineering parties, Sinn Fein and DUP, extremes in their own rights, governing over their constituents like democracy and home rule were merely pawns to their game of legitimacy and political bullying. 15 years after the peace agreement, and 8 years after the official IRA ceasefire, this endless and violent game of chess is played during Parade season, from April to October, in a relentless display of either victimization or alleged, self-absorbed superiority. Both narratives are so ensconced in their own beliefs that the very idea of togetherness and respect of someone else’s affiliation is not a possibility; parading means existing, and essence preceded the existence, therefore parading is only the pragmatic, physical embodiment of the idea that gives community leaders a reason to get up in the morning and survey their meek kingdom safe in the fact that neither Dublin nor London will ever intervene again (… but maybe the United States will.)

But political legitimacy through democratic process must be restored. The Parade Commission and in extenso Theresa Villiers must find a way to speak louder than Orangemen flying Union Jacks over the separation wall in Ardoyne; louder than former IRA members commemorating bombers – and not their victims – in Castlederg. And it’s not about screaming or slamming their fists or burning a bigger fire on the Twelfth; it’s about both communities realizing that there is an authority superior to that of their quarrel, which is democratically elected representatives in Stormont. The Parade Commission is the supervising, overseeing institution that must be able to take up action when foreseeing conflict or, sadly, in the wake of a five-days long riot.

subtle

This is not “cultural war”. This is just another expression of conflict.

The displacement of the fight over a different platform. The language is the same, the actors are the same, and the territory is also the same, isolating even further those wishing to finally transition from a conflict that will never, ever end if we give it any legitimacy superior to that of the Home Rule it took Northern Ireland so long to achieve. It’s not about mourning the complete independence Eire was never going to grant the five counties; it’s not about desperately grasping the last fine threads linking this morsel of a tiny island to the burning ashes of an empire. But the blond lead the blind, and belonging to entities that no longer exist or are out of reach is better than not belonging at all, and be nobody’s child. And we fight again, resurrecting the ghosts of the Battle of the Boyne and fondly remembering the dull sound of exploded devices in 1973. Northern Ireland is populated by one million people, and twice as many ghosts, haunting the streets and creeping through every orange banner and Gaelic declaration.

As such, the Parade Commission is more than simply regulating pathways and costumes and allowing banners and symbols. It is about deciding whether said symbols and myths are worth destroying property and infusing inhabitants with the overpowering threat of violence as soon as July is around the corner. There is more fear in what may come that what actually takes place anymore; and this threat is ever present, to the point of stopping Belfast’s Lord Mayor from visiting his own park. This generation knows that IRA or UVF threats can still be carried once called, and remembers grimly the aftermaths. So does my generation. And, perhaps, still, the generation coming next. The Parade Commission, in its ever present role, is actually one truth commission in its own right: is it safe yet to express one’s identity in Northern Ireland? From 1998 on, we are still new. We are still hesitating, in the dark, our eyes barely open. And we can only construct our identity in opposition to someone else’s. Once we run out of stones to throw at windows on Woodvale Road, we turn against Villiers, demeaning her position, calling her back from leave after the loss of a close one, and delegitimize her work. It is important for community leaders to constantly remind the population that the authority does not reside in pawns in the Stormont, that they can easily defeat, through simply interrupting Villiers’ work or even resorting to physical violence against elected officials. Parades are a display of identity. Parades are what comes first before the legion arrives as reclaim what is historically theirs to claim: Sinn Fein in its West Belfast fortress, DUP / UVF across the river after Short Strand, UDA all over Shore Road up until Carrickfergus. None expand; but all maintain position and defeat anyone daring to believe Belfast is a homogeneous entity that ought to be governed as one. Bombs are defused and dismantled at least twice a week; they don’t explode as much. But the violence that resides in belittling the democratic process is still there.

What is striking however is how alone Theresa Villiers is.

She is not backed by staff or any other MLA in Stormont. She, herself, must find a way out among the cacophony of disastrous Orange events victimizing themselves in the face of an ever so ephemeral republican menace, or facing a stern but solid IRA / Sinn Fein silence that just won’t budge. She alone is tasked to decide how Northern Ireland will exist and perform its ancient rites in the respect of the law. It is clear that it won’t happen, and it is clear she can not do it herself. Unless Theresa Villiers is backed by community mediators that will have access to community leaders and act as an effective and efficient diplomatic liaison between, say, Ardoyne and the Stormont, the political branch of armed forces will still govern and decide of the life of Belfast inhabitants, from their bus routes to where their children attend school. Home Rule was supposed to stop the cacophony of paramilitary supervision, on one side defending the “oppressed” on the other backing up the “loyalists”. The Parade Commission governs over all of Belfast, from the Black Mountains to Bangor. It governs all of Derry, from the top of the Bogside to the Foyle riverbanks. It has authority over Portadown and Ballymena the way it does Castlederg. Home Rule and a peace agreement meant that we would agree, collectively, decide that Stormont would be where cultural issues would be discussed. That was the day Northern Ireland had the opportunity to emerge as “we” as opposed to a “us vs them”. Northern Ireland is alone. Northern Ireland needs to stop tearing at itself.

UTV captioned this image “PSNI fatigued by public disorder”. Belfast riots, 2013

If Theresa Villiers is indeed unable to stop the IRA parade in Castlederg, despite a pretty wide-ranging call to hold the so-called festivities, maybe it is time to publicly acknowledge that the Stormont has failed to create and impose its political legitimacy upon Ulster. It has failed to raise its voice against those screaming for violence and heeding the call in the name of an oppressed ancestry. There are other ways to commemorate and remember. In the last few weeks calls for public and judicial inquiries into murders committed at the beginning of the Troubles – spanning 1973 – 1976 for now – have created the possibility of more truth and reconciliation than the simple Bloody Sunday Inquiry, which in itself was a major piece of data gathering, testimonial, witnesses hearings, with the Damocles sword of collusion heading over everyone’s head. Northern Ireland is pressing the fast forward button. If every transitional society goes through a phase of a dim, seemingly stable lull during which no conflict is exploding but no progress is made, 2013 will be the year when Ulster will rise from its judicial slumber an address the underlying issues of political identity across the board. There is a willingness, on the part of victims’ families, not to necessarily place a blame, but to at least know what happened to their loved ones, and what role they played in a war that has plagued the western European continent for centuries.

Home Rule was the promise to have a political identity that would not be color-coded, that would not have its own specific language, that would not have to be confined on either side of the Peace Line. It was supposed to be a Parliament for each and every citizen with the full weight of their civil right under domestic, european and international law. It was the idea that Northern  Ireland did not have to be ruled according to fiefdoms, exist through the mere prism of violence, and express itself in a rhetoric that would be inclusive, not divisive. As I wrote before, the Shared Future Agreement has been shoved down our throats, and it was too much, too fast, too soon. The blossoming number of inquiries in the last few months, from Kingsmills to Omagh, proves that the victims of the conflict may be ready to place their future in the hands of an institution that is not local, military-funded or geographically located, but belonging to all of those in Northern Ireland. It was finally ready not to investigate murders, disappearances and blasts through vigilantism but through judicial and lawful means. It is hope. It is the maturity we may have finally acquired.

If Parades can not be anything more than commemorating a long lost history belonging to a distant past that no longer hurts anyone, then there will be no need for a Commission, for the bullying of Theresa Villiers, or for a sterile conversation constantly hitting a wall or repeating itself like a skipped disc. There will forever be a question of tit-for-tat; if Parade A is allowed, counter-Parade B shall not be outlawed, and will not tolerate any regulation of its usual path. If Parade B is asked to step down, Parade A will gloat over its supposed supremacy and therefore “cultural” authority over Parade B. There is always a parade and a counter parade for as long as Parades have been the drum-marching band rhythm of Belfast and surrounding cities; there has always been a streak of mindless and reckless sectarian violence in its forebearance and in its wake. Paraders must either submit to the Parade Commission in its sometimes awkward attempt to guide political sensitivities, or simply accept to suspend their existence until an agreement is fully reached between community leaders.

Shining city on a hill: Stormont Castle, Belfast

Who has the “right authority” in Northern Ireland?

If the government does not – or is “not capable” – to decide what IRA former-or-not members will feel like doing on their turf, aren’t we retreating back to the pre-ceasefire days? Wasn’t the point of a peace agreement to create an entity that would supersede territorial fatalities in order to promote inclusion and equality? Nominating someone else in lieu of Theresa Villiers is meaningless; she is not the problem, she just tried to be a part of the solution. Getting rid of the Parade Commission will simply be another detour on the sharply edged road to conflict resolution. Reconciliation is nowhere near if we can not even agree on the simple fact that no political identity is more legitimate in its existence than another, and that no political entity is within its right to inflict childish provocation over another. We talk about governance while separation walls are still erected.

Either we empower Theresa Villiers and accept to submit to her decisions, while still allowing democracy to flourish through constructive criticism and peaceful submission of new ideas, or we simply accept that Home Rule has failed, and governing Northern Ireland is just as hard as trying to make an orange tree bloom on its soil.