The case for re-opening the Gibson Inquiry

“They were accusing me of fighting with Bin Laden in the battle of Tora Bora; of being in charge of weapons stores; of being a terrorist recruiter – though I’d only been in Afghanistan for a few weeks. I start to try to talk but everybody is just shouting and screaming around me. Then suddenly I feel it – douff – this American guy grabs me by the head, and he slams it backwards against the wall. In my mind I think I must try to save my head so I tried to bring it forwards, but as soon as I do he grabs it again and bashes it: douff, then back again, douff, douff, douff.”

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In a interview with the Daily Mail published on December 12, 2015, Shaker Aamer reenacts being hogtied during interrogations at Bagram Air Base, Afghanistan.

Shaker Aamer may be one of the most notorious of Guantanamo detainees, imprisoned on a naval base that once housed more than 700 “enemy combatants” in the so-called war on terror. The ordeal he suffered at the hands of US interrogators during 13 years of detention, as a British national, will not be the subject of a legal challenge against the United Kingdom he accuses of collaborating with his captors: “I do not want to prosecute anybody. I do not want anybody to be asked about what his role [was] in the past. I just want people to tell the truth (…) I don’t believe the court will bring justice because of what happened in the past.

Although we seem to know quite more about him than we do about other prisoners, there is a still a lot that remains unknown, mostly the treatment to which he has been subjected. An independent psychiatric evaluation ordered by his lawyers in late 2013 and released in early 2014 paints a picture of non-therapeutic medical administration, force-feeding, repeated beatings, and submission to the infamous “enhanced interrogation techniques”, or EITs, investigated by the US Senate’s intelligence committee.

Shaker Aamer is not the only victim of British collusion in the CIA’s rendition, detention and interrogation (RDI) program. Belhaj, a dissident who fled Gaddafi’s Libya, was flown back and thrown into the jails were he was submitted to torture, courtesy of the MI-6. Several other detainees recall being transferred to Guantanamo via the base in Diego Garcia, a British overseas territory. Shaker’s prolonged detention – he was cleared for release twice, in 2008 under Bush and in 2009 under Obama, only to see British soil in October 30, 2015 – gained political traction and mass outrage thanks to media coverage and a strong push in Parliament. For a decade, the UK government has replied to calls for information with the same line: that they had sought assurances from the US government that the last remaining British national was receiving fair treatment, and that any conditions of release, if it was to take place, would be solely a matter for US authorities. For a long while, campaigners for Shaker thought he would die in Cuba, without charges, without a trial, and submitted to abject treatment.

Shaker Aamer survived, and is now reunited with his wife, three sons, and daughter. It is a testament to his resilience that he is capable of recalling what he was forced to endure, and feels ready to speak. Many, including former Scottish first minister Alex Salmond, called for former Prime Minister Tony Blair and his former Foreign Secretary Jack Straw to answer questions on Aamer’s detention and continued collaboration with US authorities under the cloak of the “special relationship” that has come to signify gross human rights violations; it is absolutely necessary that the truth emerges. This would not, however, be the first attempt. The Detainee Inquiry, also referred to as the Gibson inquiry, shelved in 2012, released an incomplete report in December 2013 that left many questions unanswered, while raising brand new ones that some feared would never be addressed. The document isn’t as unnecessary and useless as its harshest critics claim. While not shedding light on many areas touching on intelligence-sharing and the modus operandi of British security services in their relationship with American counterparts, it clearly identifies key issues. 

Shaker Aamer’s release, his accusations against the British government, against Tony Blair, and the security services are an opportunity to open an inquiry – not just on Aamer’s detention, but on collaboration in the RDI program as a whole. The momentum is one not to be missed: in addition to Shaker’s release, it has been a year since the US Senate (SSCI) released the executive summary of its own investigation of the CIA torture program; the European Parliament, through a resolution passed in February 2015, has also launched a third inquiry into EU member states’ participation, and accountability systems, in the 8 year long program that claimed many lives and remains a kafkaesque nightmare to this day. It should therefore not be an insurmountable obstacle for British officials: the blueprint already exists.

“We tortured some folks”: A question of truth

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Obama, during a White House press conference on August 1st, 2014: “When we engaged in some of these enhanced interrogation techniques, techniques and that I believe and I think any fair minded person would believe were torture, we crossed a line. And that needs to be understood and accepted.”

 

The Convention Against Torture specifically provides mechanisms of accountability at domestic and international level; most importantly, it makes it an obligation to investigate, prosecute and sentence perpetrators of what is considered an absolute prohibition. Obama’s 2014 speech and that saddening line, “we tortured some folks”, urging the general public to make political amends but move on beyond a previous administration having simply erred in pushing interrogation to the brink of torture, is not enough. It is not satisfying the legal standard. It is not satisfying in terms of moral responsibility. It is not looking at the ethics of the Yoo and Bybee memos. As national organizations engaged in a years-long battle to face their own collaboration, as the APA did, finally passing a motion this summer to ban its members’ participation in interrogations conducted by the CIA and/or the Pentagon, there is simply silence at the highest level of the executive.

There is no US exceptionalism. Everywhere, a blanket denial is applied to any attempt to investigate CIA rendition and the torture of terrorism suspects worldwide. Chastised by the European Court of Human Rights in a July 2014 judgement for negative inference, Poland continues to deny it has ever been complicit in the Stare Kiejkuty black site that once covered up the detention and torture of at least Al-Nashiri and Abu Zubaydah. Ireland, which would have let the CIA’s Gulfstream IV jets land at Shannon Airport for refuel, has arrested two of its TDs (members of Parliament) for trespassing as they investigated. Romanian authorities have also denied knowledge of CIA activities despite Bright Light being located in the basement of Bucharest’s City Hall. The second EU report on collaboration in rendition, compiled by rapporteur Claudio Fava in 2007, lists the names of heads of states and defense secretaries who refused to testify before him in the course of his inquiry, citing national security exemptions. The latest hearing led by the European Parliament’s committee investigating rendition has also recited a long list of states and their officials refusing to collaborate or continuing the now well-rehearsed line that the CIA would have operated for years in at least 14 European member states without anyone’s knowledge.

The battle must continue; the right to truth must be achieved, and if judicial activism seems to be on the side of some inquests – for instance, the Al-Hawsawi case in Lithuania – it’s representative instances in democracies that most often push against the executive Glomar responses and insist on transparency. In the UK, the Joint Committee on Human Rights conducted a public hearing in March 2014 questioning the little mechanisms of accountability and transparency in war on terror, revealing most MPs do not possess the necessary security clearance to access documents related to the activities of intelligence agencies. In France, however, the push was external – through the lawsuit of two former Guantanamo detainees of dual French and Moroccan citizenship seeking reparations for their treatment before French courts. The proceedings long stalled due to French judicial authorities showing reluctance to demand cooperation from US officials, but eventually summoned the former Guantanamo chief, Gen. Miller, to testify. The process is still ongoing. Italy famously convicted 12 CIA agents in abstentia for the rendition of Abu Omar, abducted in Milan, but the Italian Prosecutor failed to obtain convictions for agents of the SISMi, citing state secrets opposition.

The work of an inquiry as vast and difficult as that of the Gibson Inquiry requires time; and time requires the push for action to be maintained. However, the lack of accountability and the complete culture of impunity has left the idea of torture to fester and arise at the first sign of revived trauma. While the release of the SSCI report was celebrated, and for good cause, despite only being a partially redacted executive summary, the results – shocking, nauseating, and a surprise for some – did not yield an charges, let alone convictions. No investigation has been launched. Torture leaves traces. It seeps into the fabric of society in a way that leaves it permanently tainted, and seeks to re-appear after any apparent vulnerability. Without accountability for crimes of torture, the lingering question masquerading as a legitimate debate – does torture work? – continues to be omnipresent and places anti-torture advocates and victims in a situation of having to defend their innocence, as if anything could have justified the treatment they suffered.

And so it happened following the November 13 attacks on Paris, in which 130 people died in the city of lights, the largest attack on French soil since World War II. Suddenly, the threat posed by ISIS, until then elusive on western territories, became very real, and the state response to it, inflated at a high and perhaps unnecessarily rapid rate. In the US Congress, debating a possible new authorization for the use of military force (AUMF) against this new traveling, transnational enemy, Senator Lindsay Graham opposed the closing of Guantanamo; his colleagues reiterated the tired argument of the necessity and efficiency of torture in the face of such a grave threat. Until the truth comes out and is maintained in the public discourse, at government and popular level, that acts of torture are unspeakable ignominies that do not belong in a democratic society, torture will continue to be perpetrated. It will not just be applied to a foreign, distant enemy in covert, extraterritorial prisons: the mechanisms and protocols might also be used by domestic law enforcement against citizens, so convenient the practice is to obtain confessions and recruit informants. Torture, once granted right of passage on a society, tends to stay, unless it is effectively, with the gravitas that it deserves, condemned unequivocally.

An amendment to the National Defense Authorization Act (NDAA) in the US, proposed by Sen. Feinstein, who was Chair of the committee investigating CIA torture, bans the use of torture in the US in the conduct of war – but as psychologist and former APA member Dr. Jeffrey Kaye explains, this does not remove the methods detailed in the Army Field Manual’s Appendix M, nor does it change the 1990 Congressional reservations emitted during the process of ratification of the Convention Against Torture: as long as those are maintained, the US understanding of what constitutes torture and where it applies are in stark contradiction with the requirements of the UN Committee Against Torture, as mentioned in the country’s 2014 review.

While EU member states are bound to the European Convention on Human Rights, banning torture as well as cruel, unusual and degrading treatment in its Article 3, the available domestic remedies are not being used to their full potential, and it is likely that the ECHR’s caseload on CIA rendition cases will continue to increase as Guantanamo and/or Bagram detainees possibly access a lawyer. None of that is new for the European Union, as “legacy” cases – historical inquiries – related to British military intelligence activities in Northern Ireland between 1971 and 1998 are only just emerging. This includes the documents provided by the British government to that same Court of human rights, in an application made by the Republic of Ireland against the United Kingdom. In 1978, the ECtHR ruled that those methods of coercion during interrogation did not amount to torture. 23 years later, the US would use this decision, and British past counter-terrorism policies, to justify and legitimize theirs.

“A slap and a tickle”: from Northern Ireland to the Bradbury memo

96. Twelve persons arrested on 9 August 1971 and two persons arrested in October 1971 were singled out and taken to one or more unidentified centres. There, between 11 to 17 August and 11 to 18 October respectively, they were submitted to a form of “interrogation in depth” which involved the combined application of five particular techniques.

These methods, sometimes termed “disorientation” or “sensory deprivation” techniques, were not used in any cases other than the fourteen so indicated above. It emerges from the Commission’s establishment of the facts that the techniques consisted of:

(a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spread eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;

(b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;

(c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

(d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

(e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

The Commission’s findings as to the manner and effects of the application of these techniques on two particular case-witnesses are referred to below at paragraph 104.

97. From the start, it has been conceded by the respondent Government that the use of the five techniques was authorised at “high level”. Although never committed to writing or authorised in any official document, the techniques had been orally taught to members of the RUC by the English Intelligence Centre at a seminar held in April 1971.

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Nine of the Hooded Men. (c) The Irish Times, December 2014

Those methods, here described in para. 96 and 97 of the ECtHR ruling in the Ireland v United Kingdom case (referred to as the “Hooded Men” case, as the applicants would come to be called) bear striking resemblance to methods employed by the CIA as described in a 2004 internal memo, partially declassified in 2009. It was around the same period that the “torture memos“, authored by government lawyers Yoo and Bybee, would be released, showing reliance on the legal decision (footnote 37) rendered by the Strasbourg Court in 1978 that these interrogation techniques, while in breach of the Convention, did not amount to torture.

Blurring the lines is exactly what the CIA did, has done, and continues to do when it comes to defending its rendition program. While the SSCI report’s executive summary goes in somewhat excruciating detail, it is because it is necessary to decide whether or not the Court has raised the threshold of that dotted line between cruel, unusual and degrading punishment, and torture as defined by the 1984 UN Convention. It became extremely convenient when CIA black sites routinely used sensory deprivation, “noise torture”, and methods of rapport-building with interrogators aimed at provoking psychological disorientation. In a paper called “Torturing the brain“, published in 2009, neuroscientist Shane O’Mara, a researcher at Trinity College Dublin, explains that those methods are not just coercion with the purpose of obtaining information; the long-term effects can affect the neurological structure and chemistry of the brain. O’Mara, whose book released at the end of November this year aims at answering in a scientific manner the never-ending fallacy of the efficiency of torture, may have provided information changing the threshold of acceptable treatment.

Relying on the 1978 ECtHR decision will soon prove difficult for the CIA and other advocates of the rendition program, in the US and overseas: a RTE investigation, “The Torture Files“, based on research conducted over decades by Northern Ireland-based legal charity the Pat Finucane Centre, showed that the British government deliberately misled the Court by handing over incomplete documentation on those methods. Ireland has agreed, in December 2014, to support re-opening of the case, currently under judicial review in Belfast. Because the CIA rendition program and the SERE protocols in place in Guantanamo strongly rely on the MI-5 activities in Ulster, a revision of the past, the legacy of early counter-terrorism legislations, orders, and directives in Europe will affect the process of accountability across the world; the methods of intelligence gathering will be revised, and the permanent political rhetoric surrounding the so-called exemption to the prohibition of torture – terrorism – now can be dismantled. It was affirmed in the judgement that the use of torture on suspected IRA members – whether they proved to be confirmed IRA or not – further radicalized the organisation and prolonged the war: the response to the introduction of the Internment in 1971 – administrative terrorism detention without charge – “surprised” the British government by its effects on a population already considering itself at siege.

In an opinion piece penned by Sen. Feinstein and published by the New York Times in November, the Senator calls for the closure of Guantanamo, speeding up the military commissions process, the enforcement of the decisions of the parole review boards, and, ultimately, end a program and a policy of detention that she admits has become in itself a national security threat. Referring to ISIS dressing up their hostages in orange jumpsuits similar to those worn by Guantanamo detainees, she concludes that ill-treatment, abuse of power, unlawful detention, and general conduct of counter-terrorism outside of legal framework provided by the Geneva Conventions contributes to legitimizing violent response against US forces wherever they are deployed.

It is necessary to specify that the policy the ECtHR details in the introduction to its final judgement was ended in 1974, but torture and ill-treatment by military intelligence continued in Northern Ireland well until a successful peace process could be implemented. The threat posed by the IRA was considered too much of a risk for civilians, both in Ulster and in England, that any method to infiltrate the organisation or obtain information from suspects when captured was politically endorsed. Several euphemisms, again, not unlike that of “enhanced interrogation techniques”, were used by British authorities to hide the dangerous and horrifying reality of their actions. It took Northern Ireland that long to face its past and accept to dig into it, regardless of how scared it was of what it’d find; but there can be no peace without justice, and no justice without truth. From both sides of the Atlantic, western states have to ensure, the sooner the better, that accountability for the crimes they committed in the name of their security is underway. Obama’s desire to turn over a new leaf and continue down its path is unsustainable. The United Kingdom, in 2015, has now failed two opportunities to stop its practice of torture in the name of counter-terrorism. Re-opening the inquiry in parallel to supporting the investigation of legacy cases in Northern Ireland would be unprecedented, but historically significant.

The duty of investigation as guarantee of no-recurrence

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A bomb exploded outside the MI-5 Palace Barracks in Holywood, Northern Ireland, in 2010. R-IRA claimed responsibility for the attack. (c) The Irish Times

 

“There is a need for mechanisms which are apt to examine the more structural and systemic dimensions of the rights violations and abuses of the ‘Troubles’. Such mechanisms should be in addition to, not as a substitute for, procedures that might bring satisfaction to victims in terms of truth and justice.” (…)

The human rights expert cautioned that cases leading to death have received most of the attention, leaving out serious other violations, ranging from illegal detention to serious injury and torture, among others.  “These victims, many of them in situations of particular vulnerability, and they deserve urgent attention,” he underscored.

“I am calling for a comprehensive redress and prevention policy, which must encompass also strategic work towards an integrated schooling system, including on history teaching, the establishment of a trustworthy entity to deal with records and archives on the ‘Troubles’ and more emphasis on psychosocial support to victims and their families.”

This statement from Pablo de Greiff, the UN Special Rapporteur on the right to truth, justice, reparations and guarantees of non-recurrence was released via the Human Rights Council on November 19, 2015 following a 10-day visit in England and Northern Ireland. Such a position as independent expert of the UN Special Procedures mechanisms highlights truth and justice as fundamental rights, pillars of the guarantee of non-recurrence, which translates into accountability as an institutional duty not to engage in those violations in the future.

The duty of investigation is set out in Article 2 of the ECHR; it demands, requires, places an obligation upon member states to seek truth and justice in any exposed and alleged violation of human rights as set out within the Convention. Northern Ireland has relied on Article 2 to maintain the possibility of opening “legacy cases” in its domestic courts, a process under threat by the current Cameron government to repeal the 1998 Human Rights Act, repeal its territories from the jurisdiction of the Convention – this includes Northern Ireland, as national security issues do not benefit from devolution.

As mentioned before, the responsibility to investigate and prosecute perpetrators of torture is also set out in the 1984 UN Convention Against Torture, in both article 4 and article 12. The focus on the responsibility, the requirement to investigate is framed as just as important as the need to prevent from being committed. The language is, at first sight, difficult to interpret outside and beyond what was intended by the authors of the Convention, but the US and the UK maintained a political appearance of compliance through blanket denial and loose interpretation. The discourse surrounding political necessity to answer to hideous crimes of terrorism has become the equally as hideous necessity to commit torture, to the point even well-established lawyers felt comfortable detailing a proposal for torture under judicial warrant. Article 2 (2) is very clear: there is no exemption to the absolute prohibition.

UK Home Secretary Theresa May has several times invoked the fact that ISIS posed an unprecedented threat to the security of the United Kingdom and the safety of its citizens and residents. This implies that, despite the threat of violence being more significant than the actual acts of violence themselves on UK territory, ISIS would pose a bigger and more politically consequential threat than the IRA ever did during the Long War. Not only would this place the Terror Orders and the Prevention of Terrorism Acts in a context, not just of constant legal derogations in the name of counter terrorism, but also of political legitimacy in order to respond in proportional terms to IRA actions; it would also make the ISIS threat bigger, therefore the response stronger, more powerful, intrusive, and less likely to be limited and space and time, or subjected to parliamentary or judicial review. The fear that ISIS provokes in western country is so intense that it is reviving what Europe thought it had buried several decades ago.

The report of the Gibson Inquiry identified 30 (!) issues it would have wished to investigate, ranging from unease at raising the issue of torture with the “partner” (the US) to knowledge of the RDI programme from the executive. All 30 issues are paramount to determining criminal responsibility under domestic and international law. All 30 issues remain relevant to this day, as President Obama seeks – and fails – to close Guantanamo, and the UK seeks – and fails – to hold itself compliant with international humanitarian and human rights law while still creating areas of exemption. Through revisiting the Gibson Inquiry report and use it as a basis to re-launch the detainee inquiry, the UK could find itself in the unprecedented position to establish its own domestic system of accountability, truth-seeking, and transparency in the conduct of the war on terror – in line with the abuses it committed in the past and has yet to condemn at judicial level. With Shaker Aamer free, and 6 UK applicants seeking redress and truth in their own rendition to Guantanamo, there is a political responsibility not to let that time window close – and a legal duty to uphold.

Read the full Detainee Inquiry December 2013 report here

Read the Interim Report of the European Parliament inquiry on CIA rendition here

Read the Marty Report on EU member states and CIA rendition, 2006

Read the Fava Report on EU member states and CIA rendition, 2007

Read the executive summary of the SSCI report on the CIA rendition program, 2014

 

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Hassan v United Kingdom: “human rights law is not rhetorical”

Camp Bucca, Iraq, which prison is under US authority. (Photo: 2009 / NYT)

On December 11, the European Court of Human Rights (ECtHR) heard the case of Tariq Hassan, the applicant, a former detainee of Camp Bucca in Iraq, arrested a month after the beginning of the hostilities, then found four months later, his body riddled with bullets, 600 kilometers away from the camp, his hands tied behind his back. Although he had been released from Camp Bucca, he was still carrying his UK-issued Camp Bucca ID tag. The hearing had made waves: the University of Essex was allowed to submit commentary on the case as a third party, and a delegation of Supreme Court judges from around the world were in attendance. This hearing was not a simple case of jurisdiction, as the United Kingdom representative made it out to be. This hearing touched on two core principles: whether human rights law is suspended in times of armed conflict, and the position of a government regarding its own war crimes when security documents are suddenly declassified. The opening sentence of the United Kingdom set the tone for the following two hours: “if I wasn’t nervous before, I’m nervous now.” And well he should be.

“the UK detained the applicant under the pre-emptive assumption he was an enemy combatant.”

Tariq Hassan was captured by British armed forces in Iraq under the suspicion that he was an “enemy combatant”. Detained and interrogated, he was later released after being considered a civilian by the British, who thought fit to keep him in the camp “as Iraq was a dangerous place”, and a civilian would be better off in a British camp than back home. If both parties are disputing jurisdiction, it is based on whether or not the “active” part of military hostilities were still taking place back then, or if the United Kingdom had effectively become an occupying power, per the Geneva Convention. Throughout the course of the hearing, several inconsistencies on the official status of Tariq Hassan will surface: a civilian, suspected enemy combatant, armed combatant, security threat – all of which can be tied to whether the hostilities were still taking place and the UK was effectively at war, or if persons non engaged into active hostilities could be deemed, by default, civilians. If the UK kept on arguing that military action was legitimate in the case of the applicant, who was found on the roof of his house carrying an AK-47, circumstances need to be taken into account: carrying assault rifles was lawful in Iraq at the time, and the applicant acted lawfully. Whether he posed a security threat to British armed forces in Iraq at the time has always been questioned by the applicant’s counsel, who argued his arrest and detention were linked to the applicant’s activity as a high-ranking official of the Ba’ath party. A debate before the Grand Chamber of the ECtHR could not solve the question of the determined date of the end of active hostilities in Iraq, or what could make an enemy combatant out of a civilian. The issue raised – and the claim made by the applicant under Article 5 – was whether it was justified to apprehend an individual, in a context of armed hostilities, and detain him under the pre-emptive assumption he was an enemy combatant.

The UK will maintain their position throughout the hearing, referring to international humanitarian law (IHL) and the Third Geneva Convention (GC3) in a way that will later explain Justice Secretary Chris Grayling’s position this week. The government asserted and repeated that soldiers are the time were “ill-equipped” to make a judgement on the category of armed combatant they were dealing with, later to say “we can not expect soldiers to apprehend someone, and question themselves: ‘what paragraph of the Geneva Convention is this in relation to?'” he would argue, in response to the Court’s questioning. The counsel, however, argues that the arrest and detention was not arbitrary; detaining Tariq Hassan was “a bargaining chip”, a tool of intimidation against the real target of the military operation, the applicant’s brother, a general in El-Quds Army. The counsel rejects the remise that the applicant was an enemy combatant. Its only crime, they say, was to be related to one, which, in the context of the invasion in Iraq and the permanent, global quest for security and safety launched by the United States and the United Kingdom, is enough to justify arrest and detention. In short, Article 5 does not apply, because one, even as a civilian, is a combatant by proxy, by virtue of blood or location.  The government’s claim that Hassan was deemed “probably a civilian” is just one of many inconsistencies mentioned during the hearing that only confirm the fact that military operations in Iraq at the time, classified up until September, were riddled with issues of territoriality, responsibility and, most of all, accountability.

Appropriate and relevant documentation shed a different light on the story for both parties. The applicant, which alleged a violation of Article 2, was swiftly rebutted by the Government in a way that somehow defies logic: there could be no allegation of ill-treatment, the government said, because, due to its civilian status, the detainee must have been released. Discrepancies on the date of release, the area of the camp in which Hassan was detained, and the obscure circumstances of his release are apparently irrelevant: the Government assumes that no violation could have taken place since the Government would have never been in position to violate the law in any way. The location and the timing of the discovery of Hassan’s body are still an issue of contention; the fact that he was detained after being cleared, however, for “security reasons” – his own security – leaves a lot to be desired as to how the United Kingdom interprets the conditions of Article 5 (1) . Never mind the classification of the operation up until September 2013, about a year after the applicant first made their claims to the Court: as far as the United Kingdom is concerned, in the case of the death of a former civilian detainee in one of their camps in Iraq, “there is nothing to investigate, there is no basis to engage the responsibility of the United Kingdom”.

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James Eadie QC, Counsel for the UK government: “so, this is where Article 5 is .. in juxtaposition with IHL…”

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“… anyway, my point stands, with respect to the Court, that Article 5 is not applicable.”

To evade said responsibility, the Government made it clear it did not recognize the claim of jurisdiction. Ensued a battle of the legality of jurisdiction in the Iraq war, that could be a simple matter of legal hierarchy if it did not imply a vacuum in accountability for possible violations of human rights in Iraq. According to Article 1 of the Convention, extraterritorial jurisdiction is exceptional. What could be more exceptional than the case of an international armed conflict in which the member state later becomes an occupying power? In a sentence that echoes Lord Sumption’s recent assessment of the ECHR, which he accused of “expanding the scope of human rights law”, the Government explained that this case could not be made as a “fundamental development of jurisdiction”, and this on general principle. According to the government, this is an IHL issue, definitely not under the scope of British jurisdiction, therefore the applicant had no claim to petition to the ECtHR. But what constitutes jurisdiction in international armed conflict? The concept of effective control of the area (ECA) will be defined, redefined, stretched and reduced to being clearly meaningless in the eyes of the government, which could not possibly refuse it had ECA under international law without, in the same step, claim it hereby fell under United States jurisdiction. There can be no void of territorial jurisdiction in armed conflict; if a state can claim it has become an occupying power, and “shared some duties” with another occupying power like the UK claimed, it falls beyond the scope of ECA. The Government found itself in the extremely difficult position of trying to reject a claim of responsibility without arguing in favor of another state – an ally – having this responsibility instead. Given the extent of the US and UK collusion in this case, the battle was lost before it even was addressed before the Court.

According to the United Kingdom, the laws of warfare have changed, for “practical” reasons.

Trying to reject the ECA, the UK argued  that we “need to be thoroughly cautious when establishing jurisdiction. (…) the UK had become effectively an occupying power (…) and were holding the fine line before anarchy… but that doesn’t mean the UK had effective control of the area.” Since the UK insisted on referring to GC 3 as being the only relevant covenant applicable to this case, a cursory glance at the definition of occupying power the Hague Regulations can be relevant. Article 42,

Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.

The Hague Regulations, also mentioned in the opening statements, are pretty clear on the duties of the occupying power and its relation to ECA. On Article 43,

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

The reference to the UK holding back against “anarchy” clearly satisfies the “public order” criteria; the application of Article 5 of the Convention is also just as clearly in accordance with the 1949 Geneva Convention protecting civilians. Is there such a thing as a civilian in modern warfare? Has the attack on March 20th, 2003 erased the concept of presumption of innocence? It appears to be so, as the United States often excuse their strikes on non-combatant bases as targeting people loosely linked, or related to, combatants – combatants that have never been defined as such after interrogation and investigation. Tariq Hassan was a civilian, but his status had to be defined as such post interrogation as he was pre-emptively deemed a combatant. This is in violation of the Geneva Convention, regardless of whether the active part of hostilities in Iraq had ended or were still under operation, a concept that the UK tried to raise and was quickly dismissed by the applicant’s legal counsel. The UK seemed to operate under the idea that in times of armed conflict, human rights law is displaced. The Court had several questions in that regard, especially considering the UK had assumed Article 5 would not stand and would prefer to see itself subjected to GC 4. However, GC4 is unequivocal in the protection of civilians in armed conflict.

Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

There is no displacement of Article 5 of the Convention under IHL. Article 5 of the Convention maintains the status of civilians and still claims that their rights cannot be renounced. In a previous debate at the House of Lords, Judge Brooks had expressed that it was “utterly unreal” that the United Kingdom be held as having ECA in Iraq, even after they had become an occupying power. In effect, the UK is contesting the very Geneva Convention it is proposing to uphold in lieu of the Convention… by claiming two mutually exclusive concepts, being an Occupying Power and being responsible and accountable under law as having jurisdiction per se. The Government claimed, visibly frantic as he tried to assert his position before a Court that was more than skeptical:  “you can not expect states to establish jurisdiction and all affordable existent rights in cases where they can not practically do so”. According to the United Kingdom, the laws of warfare have changed, for “practical” reasons.

The Court had several questions. Between the US and the UK, who effectively had jurisdiction? Why is the US interrogating detainees in UK custody? How is the UK arguing it was not bound by the Convention, but by GC 4, and how did it explain the alleged lapse in legal coverage? How is the UK addressing the massive discrepancies between what is reported and what has emerged in light of the declassified Blackwatch documents?

Why does it appear, in light of the opening statement and the applicant’s declaration, that the UK not only had little control as an Occupying Power, but was not operating alone in the classification, determination, and release of its own prisoners of war?

“The extent of control as exercised by the UK in Iraq was far beyond usual military activities”

The applicant’s claim was simple: this is under British jurisdiction. The UK was in control of military operations area; the applicant was arrested by UK state agents; he was interrogated, in part, by UK forces; the UK was in control of the camp, which it had derived from the US. The UK was hereby, under Convention as well as IHL, responsible for the applicant’s welfare. Attempting to create a legal void in a conflict zone to avoid accountability can not be upheld by the Court. According to previous jurisprudence, the concept of state agent has no clause for exclusivity or derogation of rights. If the UK tries to escape jurisdiction and refer strictly to IHL – which, again, is in complete accordance with the Convention, it is simply “to substract out of its obligations”. Smith v Ministry of Defense also discussed the same issue: it extends powers of the Convention at home and abroad. Details revealed by the recently declassified Blackwatch document precises that “British armed force were strongly encouraged to intervene in local disputes”, and “extent of control as exercised by the UK was far beyond usual military activities.” Camp Bucca was created for criminal justice purposes. The complete theory of avoidance and dismissive attitude of the UK government in regard for human rights law under the pretense of armed conflict is irresponsible. As stated by the ECtHR itself in the Al-Nasri case, “human rights law is not illusory or rhetorical”.

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Tim Otty QC, Counsel for the Applicant: “there is no displacement of Article 5 in the absence of derogation. I would like to go back to the facts.”

Perhaps one of the most telling moments of the hearing was the hurdle faced by the UK government in trying to explain that not only did it not provide derogations as facilitated by Article 15, but that instead of following a lawful way to extend its powers of detention – at war and at peace time – it suggested a modification (!) of Article 5. According to the representative, the conflict of legislation intervenes when Article 5 provides a thorough and almost absolute prohibition of arbitrary detention – “but the Geneva Convention allows a belligerent state to kill in warfare; but detention would be restricted because of Article 5?” the so-called absurdity hereby pseudo-denounced by the UK government is expressively what the UK policy in its intervention of Iraq and Afghanistan has demonstrated: that it reserves itself the right to auto-derogate to human rights law in conflict zones, so as to provide not only a realm for its forces to kill, but also detain, interrogate and torture protected persons under international law, for the simple reason that war is war, and war is dirty, messy, bloody, and sometimes, absurd. If anything happened during this hearing, and if anything had to be strongly emphasized from the applicant’s statement, is that nothing can be considered in absolution of human rights law. Contrary to what the UK government claimed, there is no lex specialis that could ever authorize gross violations of human rights law under the pretense of international armed conflict and situations in which armed forces are, as they said, “ill-equipped” to behave lawfully with parties concerned by the occupation. There is no derogation clearly formulated simply by circumstance. Perhaps knowing that a derogation under Article 15 would be refused, the UK simply marched into Iraq, and expected its own domestic courts to affirm that human rights law had effectively been suspended. It wasn’t, has never been and never will be. Only recourse for the UK at this stage would be with withdraw from the Convention, which would mean withdrawing from the rule of law altogether. This will still, nevertheless, not stop the violations of the Geneva Convention to be made.

Once the applicant had made this point, he paused, and said he would “like to return to the facts.”

The declassification of Blackwatch documents has been briefly addressed, but was absolutely necessary in the course of the hearing. The obtention of these documents by the applicant helped focus and speed up a process by revealing discrepancies and inconsistencies between the information formally submitted by the UK to the Court, and what was effectively reported and documented by armed forces on the ground. The previous declassification of Blackwatch documents as obtained by the applicant were heavily redacted, and this for national security concern; whether those concerns pertain specifically to the Hassan case, the applicant continues that it has remained wholly unexplained. The relevance of the arrest and detention of Tariq Hassan by UK forces – and its second screening and interrogation by US forces – seems to be beyond what the UK has claimed, saying the applicant was of “no intelligence value”, and had been hereby released two or three days after his arrest. However, the date of his release in the Blackwatch documents is different than from the date specified by the UK government; the detail that the applicant has been interrogated not just by the UK forces, who had arrested him, but also by US forces, who technically did not hold authority over that part of the camp, was also revealed. Faced with this strange and ominous example of collusion the UK government struggled to find an appropriate answer:

I … I would have to double-check… It is believed to be… I am not certain. (…) There were loads of people in the camp at the time… The US and the UK were sharing duties.

When pressed, after this monologue interrupted by flipping pages and shooting anxious glances, the representative of the government replied: “the punchline (sic) is, there was a sharing of duties by the UK and the US, yes.” Asked whether the camp was effectively, however, under UK authority, the answer was yes. Later on, when pressed by the Court a little more on the question of why the UK had not asked for derogations under European law, the representative replied: “On the question of Article 15, this, haha, er, haha way above my paygrade, I don’t need to, haha, get shouted at hereafter.” It became absolutely obvious at this stage that the declassification of Blackwatch document was a massive hurdle to overcome for the UK government, and answering for its behaviour in the early stages of the Iraq War was not something it was prepared for; an expectation was surely made that it would avoid the scrutiny of the ECHR, given the lapse in time since the arrest of Tariq Hassan, and domestic UK law requiring that inquiries be made in a timely manner (European law also stipulates that investigations must be made in a reasonable timeframe, and no independent investigation has ever been launched in the UK for the death of Tariq Hassan).

It is incumbent to the United Kingdom to face its own decisions (…) in time of war, as opposed to interpreting the Convention and later, the Geneva Convention in matters of convenience. 

More dismissively was the question of why Tariq Hassan, supposedly released from Camp Bucca three months before his death, was still carrying his UK-issued Camp Bucca ID tag with him when he died. Asked what the policy on ID tags were, the UK government replied, “we’ll check back on what the policy was (…) but my point is that it doesn’t prove anything about anything.  Contemporaneous evidence was that he was released. If stage agents are involved in the killing, we need more evidence. The theory that we detained the applicant as a hostage for his sought-after brother is not supported. Theories of UK responsibilities are being peddled.” Hassan, who, once again, was still detained in the “civilian area” (sic) of the camp after he was cleared in order to ensure his safety, was last seen and heard by UK forces, in a UK controlled area. The reason why Hassan would leave and be later executed while carrying his UK ID tag appears to be a coincidence to the United Kingdom. If the UK did not have ECA in Iraq, who did?

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“Saying ‘we’ll go to war, we’ll ignore the provision, and argue for lesser rights’ is not, respectfully, a position to take.”

The applicant closed the hearing, replacing the details of Tariq Hassan’s arrest, detention and death into the broader context – the accountability of crimes committed during the Iraq war, and the necessity to refer to existing bodies of law in order to ensure the application of the rule of law even in times of war. The applicant said, “it is not enough for the United Kingdom to answer ‘we will think about that question’, because that question is specifically what this hearing is about”. Truth is, not knowing – or pretending not to know – about war crimes can no longer stand in an era where classified documents are now at the core of a battle between legal specialists and governments for their declassification. Earlier than same week, Ben Emmerson, who had attended the Al-Nashiri, Abu Zubaydah v Poland hearing – called for right to truth and access to documents hidden for “national security purposes”. The retired judge Lord Gibson  just released a report proving the widespread use of torture by British intelligence forces in Libya. The declassification of Blackwatch is no different. Without said declassification and the obtention by the applicant, legal proceedings would have come to a grinding halt. It is incumbent to the United Kingdom to face its own decisions – in situations where it is an occupying power, a belligerent, or in complete collusion with a belligerent state – in time of war, as opposed to interpreting the Convention and later, the Geneva Convention in matters of convenience. The applicant was clear in asserting that there is no basis nor justification for the arrest and detention of Tariq Hassan under either European human rights law or IHL.

Without having lawfully attempted to extend its powers of criminal justice over the territory of Iraq as permitted by Article 15, the UK chose to act differently and carry out unilateral decisions made without the protection of the law. The circumstances of the death of Tariq Hassan are not clear, even after a two-hours long hearing; the discrepancies in the story, however, are addressing the core of the current climate of national security and foreign policy. There is no immunity in a state of war, and there is no escaping the scope of human rights law simply due to armed intervention. Contrary to popular belief and what is enforced at domestic level in both the United States and the United Kingdom, there are still instruments in place to provide accountability for the hundreds of thousands of Tariq Hassan’s across Iraq, Afghanistan, Somalia, Yemen, Pakistan. In the words of the applicant,

Saying “we will ignore those provisions, we will go to war, and argue for lesser rights” is not, we say with great respect, a position to take.  (…)  Engaging in armed conflict, with all the consequences that will flow, must be done in accordance with international law. The United Kingdom says that a derogation is a measure of last resort.  We say, respectfully, that engaging in armed conflict – or at least we hope – is a measure of last resort.

Suffocate: how human rights law killed the human rights lawyer

A week before Samantha Power was officially sworn in as Obama’s representative at the United Nations, Mark Ländler wrote a piece in the New York Times in which he considered international law “obscure”. I responded – at length – to that comment, then almost immediately stumbled upon another piece of writing deploring the complete opacity of human rights law. It was not from a misinformed journalist- it came from the very people that currently teach one of the very few human rights law degrees in the world. In a strange twist of events, human rights law proliferation, they say, has turned in on itself and facilitated legal loopholes and obstructed the clear path to the rule of international law. I was ready to disagree, when it dawned on me, the way an anvil falls onto a coyote’s head, that human rights law – and practicing human rights – is definitely not what it used to be.

The law was meant to be for the people. It is not an instrument of oligarchy; it is supposed to be accessible. After all, ignorantia juris non excusat. Now Verdirame explains that human rights law has “the accessibility of a tax code”. The proliferation under what are called “third generation rights” – as in distantly removed from “first generation rights”, such as self-determination and freedom from torture – means that human rights is now basically what everyone wants it to be; that it slipped from the grasp of legislative international bodies; that it can be anything or everything, and are levelled against so-called “orderly” countries by less abiding ones to “shore up some political legitimacy”. And we are all lamenting the fact that we are creating second and third generation rights while the basic fundamentals of the UNDHR are still a struggle across the globe. It blurs the focus, it distracts the attention, and it begets media attention more than an inmate suffering torture in a democratic regime – because we created new risks and new threats that somehow invalidate human rights law in its current incarnation, while still accepting to legislate on third generation human rights. It’s the Roman Empire all over again: forget they’re all going to die, live under the illusion most of their citizenship rights are not violated.

Last month marked the sad 68th anniversary of the bombing of Nagasaki, the second nuclear atrocity of the 20th century and the beginning of a new type of warfare: the all-destructive, apocalyptic kind, annihilating not just human life but all living things; and this for generations to come, radioactive rays seeping into the earth and making it sterile. Oppenheimer’s scientific discovery was a war crime. But just as the Holocaust was not the first genocide in human history, we tend to believe in 1945 as an awakening: the almighty Nüremberg Trials funded modern international criminal law, created the groundbreaking case law for human rights violations, and, by extension, decided of who would sit – forever, it seems – at the Security Council table. 68 years later, the United Nations General Assembly is scheduled to open on September 17th in New York City, with on its agenda, nuclear disarmament. Over the past 68 years, despite the development in new media technologies allowing us to watch war waged live on our televisions in a green and yellow infrared glow, where unmanned weapons are directed onto faraway lands from a trailer somewhere in the American Midwest, we are still unable to stop what was the very reason we started in the first place. Human rights proliferation has blossomed like poison ivy because liberation has led to justified entitlement; once freed from colonialism throughout the 1960s, and from Soviet rule after the fall of the Berlin Wall, a new idea of what the meaning of life and the pursuit of happiness developed itself. Citizens no longer needed legal and political tools to simply survive. They wanted not just life, but a better life. They – as per the ICCPR – requested civil rights. They – as per constitutionally mandated equality – requested marriage equality. And now, environmental law has also bled into human rights law, with the increasingly pressing right to water. All those rights are natural, and should be fought for; they will become political fodder for generations to come, hopefully sooner than later. But when human rights proliferated, the way a crowd tends to rush through the tiniest of open door in a prison, we lost sight of the tree in the forest.

Maybe it’s the way I was raised, deprived of civil rights and under military rule; maybe it’s the way that I was taught, with ideals of fundamental beliefs of absolute prohibitions (such as death penalty and torture). I often claim that those “issues” are not issues; that they’ve been resolved under law by already existing treaties that have been ratified, and that adding amendments or trying to redefine the criminal components they declare is going backwards to the dark ages of sovereign impunity. 1945 was a post-Geneva Convention Ground Zero. The nation-state idea of sovereignty created by Westphalia was supreme in Europe. The ages of the never failing and unfaltering empires was dominant. No one would dare standing up to what was happening across the border; journalist Jean Jaurès was shot for denouncing war as a crime in 1914, and writer Emile Zola made history – still to this day – for pointing out racial profiling in French criminal law and the unjust, unfair and inhumane situation of penal colony. The idea of fundamental human rights existed, though not spelled out as such, in the minds of journalists, travelling souls, witnesses and observers of the madness of power and the bloodshed of imperialistic expansion. But they were rapidly silenced; there were no freedom of information, no NGOs to guarantee their safety, and disappearances were common. It was through constant writing, endless record-keeping, that we knew of abuses and tried to awaken our consciences. Winifred Carney, unsung hero of the 1916 Easter Rising, was said to have entered the Great Post Office “armed with a rifle and a typewriter”.

If all of this sounds so common, it is because we have jumped the gun. We have let the illusion of our freedom take over our consciousness and awareness of our surroundings. The very erection of the Berlin Wall in 1961, then the Iron Curtain have sealed off half of the world, across an impenetrable gap between our revered institutions, and had made the 1945 dream of global humanitarian work a strictly western, capitalist construct confined to the spaces outside of soviet reach. It is argued that it is still the same. Unless the bureaucratic entanglement of the United Nations is reformed, that the Security Council is revived to show prominence and equality for emerging countries, that non-binding legal agreements are scraped as conventions and that we limit the scope of what actually constitutes human rights legislation, we will swarm in a sea of rights which meaning differ from nation to nation, according to what their current political agenda is; we will create agreements that are easier and easier to violate, and harder and harder to monitor; we will finally lose sight of what we intended to achieve, which is access to basic, fundamental freedoms as per the UNDHR in all one hundred and twenty five member states of the United Nations. Verdirame further explains:

In contrast, “partly free” and “not free” states have become the main proponents of third generation rights. For most of them, of course, these commitments in practice mean very little, since countries that do not adhere to the rule of law at home rarely take international legal obligations seriously. But by presenting themselves as the champions of these new human rights, they seek to knock liberal states off the moral high ground (…)

The introduction of the concept of morality in human rights law is interesting and extremely relevant to today. It’s the confusion of the laws we made that created this nature of being too flexible in where they bend and where they break; and where we allow ourselves to twist them to our own benefit. Morality usually has no place in law; the law concerns itself with ethics and more objective values in order to be able to protect the minority from the majority, as opposed to a subjective moral concept that would encompass dominance of the majority over a minority that would have little freedom of opinion and conscience. But the very concept of human rights is a moral concept; it was born out of the extreme outrage of a collective, the soul-wrenching moments of human decay and bearing witness to what lack of empathy and unrestrained means of destruction can provide. Jürgen Habermas, in a commentary of Kant’s “On perpetual peace”, mentioned the dual character of human rights: an inherent legality, and a “universal validity”. According to Habermas, human rights is enacted in legality. They carry with them more than the universal validity of what is a moral concept – derived from religious morality, as in the first commandment – but “belong structurally to a positive and cohesive legal order”.  Human rights law is a bridge between the general legitimisation of moral values – no killing, no torturing, no going to war without a legitimate cause, no infringement on state sovereignty, no submission of peoples under colonisation – but enshrined in legality through a series of conventions and treaties that are fully enforced through ratification by pre-approved domestic processes. Due to this dual value, human rights are not only embedded with legal bodies, they are also blessed with a universal response to their implementation. Habermas continues,

… it is part of the meaning of human rights that they claim the status of basic rights which are implemented within the context of some existing legal order, be it national, international, or global.

In the context of human rights proliferation, it is necessary to reconsider the history of human rights law, of diplomatic intervention, and general international relations to (re)define what constitutes basic rights. Should we, as a global community, patiently wait for the universal application of first generation rights before fighting for second and third generation’s? Or are new political and civil rights elevated to the same basic rights statutes as first generation human rights? Now that the legality of human rights has been asserted, where is the universal morality concept that we should all abide by, this all-encompassing humanity that should stop the atrocities of yesteryear? When the Martens clause referred to the “dictates of public conscience” in 1944, was it referring to morality of protecting the human, or to the ethics of stopping destruction by any possible means? On August 21, 2013, chemical weapons were used against civilians in the Goutha suburb of Damascus, Syria. A UN report published yesterday exposed that sarin gas had been used using surface-to-surface air rockets. To justify their push for unilateral intervention, Secretary of State John Kerry had described the attack as a “moral obscenity“. If the use of chemical weapons is an absolute prohibition – by the 1925 Geneva Protocol, by Commission of Disarmament, and by the almost universally ratified Chemical Weapons Convention (CWC) banning the use of gas and biological weapons against protected persons and belligerents, it was hardly implemented in practice. From the use of chemical weapons in Iran, by US with and against Iraq, Iraq against the Kurds, to Syria today, even nation-states having ratified the CWC and urging Syria to do the same emitted reservations as to the absolute character of the prohibition. Morals are fluctuant. They’re fluid. They adapt themselves to foreign policy as easily as gum molds itself to the sole of one’s shoe. It is hardly a solid pillar against which human rights law could stand to legitimize its universal application. It is just one part of the foundation, in itself more to do with the ethics of public conscience than it does to what our morals, always challenged by imperatives of national and international security, are capable of handling. Human rights law is in perpetual evolution; but through this evolution, through these unstoppable changes, we must never lose sight of what we may eventually lose.

When it comes to terrorism, the supposed universality of the moral cause is stepping down to questions of national security. If crimes of terrorism have been long enforced as gross violations of international law – first as a crime against protected persons under Geneva, then as a war crime under the 1997 Convention on Terrorism Bombings – the fight against terrorism itself has turned into a violation of human rights law. From use of torture to gather intelligence to violations of civil rights while in custody; from a justification of unilateral military force to global surveillance and data collection, the war on terrorism has become terrorism in itself. In defining the concept of “depersonalisation of the victim” (1), Antonio Cassese explains: “What matters is that the victim be murdered, wounded, threatened, or otherwise coerced so that the political, religious, or ideological purpose of the perpetrator may be attained. In the eyes of the perpetrator, the victim is simply an anonymous and expendable tool for achieving his aim.” In this case, the purpose of human rights is to clearly restore the victim to their rightful place, as a human being, an individual, bearing with them all their fundamental rights per the UNDHR, including the right to life. Proliferation of human rights law becomes dangerous as the forest is hiding the tree that is the core object of human rights law. Protection of dissent, of minorities, and of civil rights is of course a major pillar of human rights law; but as enshrined in domestic law through ratification, it is incumbent to the state to have them respected at a national level before engaging instruments of international law as transnational or international violations of Geneva Conventions. Human rights law proliferation should be minded and carefully classified as various sections and sub-sections of what are fundamentally first generation rights; for as long as we do not recognize the right of a human being to the respect of their life, their body, and protecting them from conflict and starvation, we will legitimise the violation of their subsequent civil rights as lesser offences. The hierarchy of importance we created on our own will permit the jadedness resulting from civil rights violations. Mandating human rights law statutes, principles and core treaties as being fundamental pillars always kept within sight will permit the protection of civil and political rights of those same values under the same auspices.

May human rights live long and prosper, not proliferate and lose sight of themselves.

[ it has been suggested in some corners… that this is not enough! ]

(1) dépersonnalisation de la victime, as coined by french lawyer Delmas-Marty in “Les crimes internationaux peuvent ils contribuer au débat entre universalisme et relativisme des valeurs?”

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.

Hey man, nice shot: interventionism as foreign policy

 

There has been a lot of talk lately regarding politics of interventionism. Be it regarding Israel’s firing of a single, lonely rocket out into Syria or France sending highly trained troops into Mali, the debate always surrounds two concepts: is the intervention morally justifiable? Or more importantly, is the intervention ethically acceptable? In fact, the question is – is interventionism as foreign policy legal?

Interventionism is treading a very fine line. It is, in itself, a moral justification for violating the once unbreakable rule of national sovereignty. The flip side of post World War II isolationism, based on the fact one country could not simply sacrifice its troops, resources, equipment, and defense budget to go run to the rescue of a European country at the mercy of tyranny , was constantly challenged by the human rights violations and humanitarian disasters taking place across the globe. Interventionism, as a concept, exists because no matter how supreme we believe national sovereignty to be, no nation is an island, and there is indeed a moral impetus to intervene when a conflict takes a turn to the disastrous pandemic. But let’s not be fooled – interventionism certainly isn’t an act of legal selflessness, of political kindness. It is more often than not tainted with self-interest. And in a post 9/11, in a state of perpetual war against countries that have never actively, legally declared war on one another but are plagued with a new brand of disorganised and non-pyramidal terrorism structure, the concept of interventionism became loose, undefined, and thrown into national debate just to permit military presence where none is clearly needed, let alone requested.

On February 26, 1999, Clinton exposed what will later be soppily referred to as the “Clinton Doctrine”:

It’s easy … to say that we really have no interests in who lives in this or that valley in Bosnia, or who owns a strip of brushland in the Horn of Africa, or some piece of parched earth by the Jordan River. But the true measure of our interests lies not in how small or distant these places are, or in whether we have trouble pronouncing their names. The question we must ask is, what are the consequences to our security of letting conflicts fester and spread. We cannot, indeed, we should not, do everything or be everywhere. But where our values and our interests are at stake, and where we can make a difference, we must be prepared to do so.

In short, nation-states intervene when they believe that, through direct or indirect action, a lack of interference on their part could threaten their own safety, domestically or abroad. However, it has been long decided that interventionism could only take place in the wake of a humanitarian disaster; to avoid occupation, long-lasting intervention, unlawful government interference, and frankly, neo-colonialism, international law has framed interventionism, in a way that is often perceived as intrusive and in opposition to a state’s right to decide of their own foreign policy. Modern diplomatic history, though, is riddled with tales of failed intervention, with foul motives or poor judgement of governance. Is interventionism still absolutely necessary in global foreign policy?

In a remarkable piece of research presented by Ryan Goodman for Harvard Law, the question of interventionism in cases of conflict – Unilateral Humanitarian Intervention (UHI) rises the issue of whether international law, and by extent its executive body, the United Nations Security Council (UNSC) should permit military intervention based on criterias which, regardless of how specific they might be, could still give way to an empirical act of aggression for ulterior motives. If anything, the very existence of modern international law should be made to discourage war, even those considered legal under the Geneva Convention; the role of international governing bodies is to promote the use of diplomatic and mediation tools prior to a conflict. Ideally, there should never be any UHIs; intervention should be investigated, approved and sanctioned by the UNSC, provided the case has been brought to their attention in a timely manner. A direct definition has been provided by Sean D. Murphy: “humanitarian intervention is the threat or use of force by a state, group of states, or international organisation primarily for the purpose of protecting the nationals from the target state from widespread deprivation of internationally recognized human rights.

If it wasn’t for Bernard Kouchner responding to the crisis in Bosnia and Kofi Annan developing the concept of “individual interventionism” – as opposed to the regular state variety – to consider an international response to mass atrocities, the concept of national sovereignty over humanitarian intervention would prevail. Already severely eroded by the supraconstitutional (thus supranational) creation of international organisation with legal interference in domestic law, Kouchner’s principles were secured in 2001 when an International Commission on Intervention and State Sovereignty (ICISS) sought to distinguish the overbearing nature of national sovereignty from a moral compass pointing in the direction of the “responsibility to protect”. Drawing the line further away from Kouchner’s “right to intervene”, the “responsibility to protect” not only refers to collective responsibility – from a united, consensus-led international community – but also the growing need to not respond individually and economically in the face of human rights violations. Where nation-states used to express their disagreement with a trade partner with economic sanctions (South Africa under apartheid, Iraq under Saddam Hussein), Tony Blair, in a famous Chicago speech, outlined five questions one nation or organisation must answer before deciding on intervention: 1) verification of data collection 2) exhaustion of diplomatic recourse 3) “prudent” and “sensible” military intervention 4) long term consequences and 5) national interest.

It is clear that in the current context, #3 and #5 are the biggest concerns. In an era where the European Union is collapsing upon itself after failure to economically investigate Greece and where the United States is resurfacing as the world’s police force, reanimating Cold War rhetoric,  national interest’s wolf disguised in humanitarian intervention’s sheep clothing is the disgusting flip side of the interventionism coin.

in 2012, Kofi Annan turns to Iran’s Ahmadinejad for help in the Syrian conflict

Kofi Annan himself raised doubts and concerns over humanitarian intervention and its future as early as 1999. Interventionism is now seriously decried as being merely a facade for occupation. The “intervention” of the US in Iraq led to many other nations to become more prudent when interfering in foreign countries, the way France intervened in Mali (shortly to be joined by UN peacekeeping forces). The ghost of colonialism past hangs heavy in the balance; the decision to intervene in one place and not another seems not just arbitrary, but also motivated by the national interests mentioned by Blair in his speech. Places like Chechnya, suffering a war for over 10 years in a destroyed, god-forsaken way that defies all rules of humanity and hope for resolution; or in North Korea, where, despite the seemingly deterrent use of nuclear weapons, the population has been starving for over a decade and is lacking proper medical care. Because of the complexity of the game theory that governs modern international relations, it is becoming increasingly hard to believe in the possibility of intervention not justified by financial, economic, or political interest. It’s as if the über interventionism of the Cold War followed by the over isolationism of the 90s could only be matched by a hardcore cynical point of view – that what is widely considered a disaster should only be met by caritative and non-profit response. Governmental intervention is motivated by geopolitics, and it’d be foolish of the citizenry to expect their representatives to vote on financial expenses on the simple belief that one must do good. The US has been decried, denounced and protested against for acting on its dependency on fossil fuels. It’s response: so what?

Lets take the case of Syria. For almost a year the international community witnessed Bachar Al-Assad repress a rebellion in blood, with disproportionate use of force and an indiscriminate target policy. This is definitely not shocking from Al-Assad, who built his entire regime based on tyrannical surveillance and brutal use of force. When the rebellion took shape, form and political rhetoric, nation-states across the globe took a more pronounced interest, but intervention wasn’t on anyone’s plate. NGOs and humanitarians worldwide were keeping track of the death toll. Was intervention justified? While the world pondered a UNSC resolution and/or a NATO presence, Israel fired into Syria. UN rapporteurs were sent to investigate the use of chemical weapons, a clear violation of international law that would justify an ethical intervention. When Israel intervened, in a more or less sudden manner, a portion of activists claimed that finally someone had taken upon themselves to show Al-Assad we would not sit idly by. It was however hard to believe Israel would ever follow Blair’s rule of humanitarian intervention. In fact, it appeared that Israel’s actions had been led by an endless desire to provoke Lebanon’s Hezbollah. Sadly, Syria wasn’t the world’s focus because of the bloodshed, but because of its unique role in middle eastern politics and the buffer zone it had become among the Arab League.

So, if we have indeed turned the page on the short chapter that is the right to intervene on legal / moral / ethical grounds, should we simply follow Ron Paul and succumb to primal isolationism?  Is there no middle ground between policing every nation we – as a fellow state or an international organisation – believe to be misbehaving (lest you catch me use the adjective “rogue”) and withdrawing inside our own borders, letting gross human rights violations unattended, bearing witness to military coups live on CNN, expecting a flood of refugees from Gaza to bleed into Egypt, and letting it go, in the name of either financial constraints or our need to clean up domestic policies as a priority? Both are legitimate concerns. Both need to be addressed. In fact, both need to be an argument against massive, across the board, unaccountable, global interventionism. The War on Terror™ has become the poorly theorised leitmotiv for interventionism everywhere (*), in the name not of humanitarian access, but of safety, security – and once again, not global safety, but one specific nation’s safety. National interest is now overwhelmingly and obnoxiously dominating the interventionism sector in a way that neither Kofi Annan nor Bernard Kouchner could have foreseen. This is state terrorism at its finest. This is precisely the reason why isolationism is now so famous amongst political dissenter; if Sen. Ron Paul has become famous for his positions against wars, any wars, he sparked the debate on the threading the fine line between isolationism and non-interventionism. In an interview with Wolf Blitzer from 2011, Ron Paul is quoted as saying:

An isolationist is a protectionist that builds walls around their country, they don’t like the trade, they don’t like to travel about the world, and they like to put sanctions on different countries. So some of the people who call me that, are actually much more in favor of sanctions and limited trade, they’re the ones who don’t want to trade with Cuba and they want to put sanctions on anybody who blinks their eye at them. And yet, the opposite is what we believe in, we believe Nixon did the right thing by opening up trade doors with China, because that is when we quit killing each other and we are more at peace, which we better be, because they have become our banker. So non-intervention is quite a bit different since what the founders advised was to get along with people, trade with people, and to practice diplomacy, rather than having this militancy of telling people what to do and how to run the world and building walls around our own country. That is isolationism, it’s a far cry from what we believe in.

Based on strict foreign policy grounds, Ron Paul is, in fact, an isolationist – but one who has watered down the Fortress of America principle in order to open up the economic grounds that strict isolationism would forego. What is interesting in this speech is his use of the world “militancy”, which implies that the United States has been a belligerent, warmongering state – a situation that has been severely exposed during the Bush Administration, was said to be diminished under Obama, but has instead violently increased. Interventionism is not just a ideological tool of foreign policy under Obama; it is the policy itself, and is more or less called upon under imperatives of national security that somehow supersede the very concept of international law, which clearly calls on non-intervention unless granted by an international organisation claiming rights to intervene for humanitarian purposes.

Maybe the key is to re-focus on the very principles that started out international organisations with supranational goals. Maybe it’s time to reframe the concept of interventionism. Maybe Kofi Annan was right in his “responsibility to protect”:

Building on our evolved understanding of sovereignty, [right to protect] asserts that when states cannot or will not protect their populations from the worst crimes, other states, acting through the UN, should do so. The endorsement of this principle by UN Member States in 2005 was a momentous step. It made clear that hand-wringing and appeals to conscience by the international community are not enough.  We must be ready to use all diplomatic, humanitarian and other means — including targeted sanctions against the leaders responsible — to protect populations from genocide, ethnic cleansing, war crimes and crimes against humanity. It also means that, as a last resort, the international community will be prepared to take collective action, including military force, through the Security Council to protect populations from these crimes. We must be clear, however. Military action really must be the last resort.  It may be necessary in some situations but the decision must never be taken lightly. War, even when waged lawfully and in defence of threatened populations, is destructive and inherently unpredictable. Once engaged, the resort to force has its own logic. Hostilities may escalate quickly beyond a limited objective or outside intended boundaries. War waged against “terror” or to protect civilians may, unintentionally, have disastrous consequences. We also have to be realistic. Only on rare occasions will there be an international consensus in its favour or an international coalition willing to act.

Kofi Annan’s earlier reference to Wallenberg (not quoted) is a call to act in the name of courage, to stand up – individually or as a group – against crimes against humanity, war crimes, genocide, and torture. The golden age of the Empires is long gone; there is now prescription on the treaty of Westphalia, and we have become, through trade partnerships, free circulation of peoples and global media, an international community that can no longer pretend to turn a blind eye on atrocities committed in the name of what can only be considered outdated and outrageous values. Interventionism through military action and indefinite, unspecified and unaccountable use of force in countries in which one intervenes is nothing short of an act of aggression. The concept of just war still prevails, regardless of whether one agrees with it or not, and it is possible for a nation to undergo military presence in the name of defense – one of the most prevalent and unlikely to be ruled out prerogative of a nation-state. But let’s not fool ourselves into thinking that any interventionism in the world right now from western military power is anything envisaged by Kofi Annan or foreign policy theorists in the early 90s, when we all gaped in horror at the ethnic cleansing in Bosnia. The United Nations’ Blue Helmets ought to be reformed; the possibility of an armed peacekeeping force must be debated; the necessity of expanding the right to protect once qualification by data from UN rapporteurs need to be enforced.

Unilateral use of military power belongs in the past.

 

(*) See upcoming review of the documentary Dirty Wars.