Posts Tagged international law
Before I start, let me apologise for the absence of posts recently. I’ve been very busy and have not really had time for this blog. Hopefully it will pick up again towards the end of the month.
Anyway, today’s ITW features an article by one Susanne Krasmann from the University of Hamburg, entitled ‘Targeted Killing and Its Law: On a Mutually Constitutive Relationship’. Krasmann is a follower of the ‘Foucauldian’ school of philosophy. We have encountered this school before on ITW here and here, but Krasmann is different, because she actually makes some very good perceptions.
The trick employed by the Foucauldian school was explained by Martha Nussbaum in a critique of leading Foucauldian Judith Butler:
obscurity creates an aura of importance. It also serves another related purpose. It bullies the reader into granting that, since one cannot figure out what is going on, there must be something significant going on, some complexity of thought, where in reality there are often familiar or even shopworn notions, addressed too simply and too casually to add any new dimension of understanding. … When Butler’s notions are stated clearly and succinctly, one sees that, without a lot more distinctions and arguments, they don’t go far, and they are not especially new. Thus obscurity fills the void left by an absence of a real complexity of thought and argument.
In even plainer terms than that, what Butler, Krasmann and our favourite Frenchie Michel Foucault like to do is write disgustingly dense an indecipherable passages about nothing very interesting. They do not have much to say, so they take as long as they can to say it, using the most obscure language possible, so that the average reader just assumes that, because they can’t understand what the hell the writer is talking about, whatever it is saying must be intelligent. All too often, it’s completely the opposite.
Which brings us back to Ms Krasmann. Here is the particular passage that sparked this post:
When targeted killing surfaced on the political stage, appropriate laws appeared to be already at hand. ‘There are more than enough rules for governing drone warfare’, reads the conclusion of a legal reasoning on targeted killing. Yet, accommodating the practice in legal terms means that international law itself is undergoing a transformation. The notion of dispositifs is useful in analysing such processes of transformation. It enables us to grasp the minute displacements of established legal concepts that, while undergoing a transformation, at the same time prove to be faithful to their previous readings. The displacement of some core features of the traditional conception of the modern state reframes the reading of existing law. Hence, to give just one example for such a rereading of international law: legal scholars raised the argument that neither the characterization of an international armed conflict holds – ‘since al Qaeda is not a state and has no government and is therefore incapable of fighting as a party to an inter-state conflict’ – nor that of an internal conflict. Instead, the notion of dealing with a non-international conflict, which, in view of its global nature, purportedly ‘closely resembles’ an international armed conflict, serves to provide ‘a fuller and more comprehensive set of rules’. Established norms and rules of international law are preserved formally, but filled with a radically different meaning so as to eventually integrate the figure of a terrorist network into its conventional understanding. Legal requirements are thus meant to hold for a drone programme that is accomplished both by military agencies in war zones and by military and intelligence agencies targeting terror suspects beyond these zones, since the addressed is no longer a state, but a terrorist network.
However, to conceive of law as a practice does not imply that law would be susceptible to any form of knowledge. Not only is its reading itself based on a genealogy of practices established over a longer period. Most notably, the respective forms of knowledge are also embedded in varying procedures and strategic configurations. If law is subject to an endless deference of meaning, this is not the case in the sense of arbitrary but historically contingent practices, but in the sense of historically contingent practices. Knowledge, then, is not merely an interpretive scheme of law. Rather than merely on meaning, focus is on practices that, while materializing and producing attendant truth effects, shape the distinctions we make between legal and illegal measures. What is more, as regards anticipatory techniques to prevent future harm, this perspective allows for our scrutinizing the division made between what is presumably known and what is yet to be known, and between what is presumably unknown and has yet to be rendered intelligible. This prospect, as will be seen in the following, is crucial for a rereading of existing law. It was the identification of a new order of threat since the terror attacks of 9/11 that brought about a turning point in the reading of international law. The identification of threats in general provides a space for transforming the unknowable into new forms of knowledge. The indeterminateness itself of legal norms proves to be a tool for introducing a new reading of law.
The first paragraph is not that hard to follow, primarily because she is citing the work of international legal scholars and not going off on her own wank (I couldn’t think of a better word to use). Here’s what that second paragraph reads like when translated from the academese:
While the law is shaped by the way that it is enforced, the way that it is enforced is itself shaped by the different historical interpretations of the law. The process of putting the law into practice changes the way that we look at what is or is not legal. Thinking about law this way helps us to understand the problem presented by law enforcement aimed at anticipating and preventing future crimes instead of punishing past ones. The law is incapable of dealing with ‘unknown unknowns’ — ie things that we not only do not understand, but cannot see coming. Actually identifying potential threats allows us to then begin developing tools to incorporate them into our legal system.
There is more to it than that, but I don’t feel that any of it needed to be there. This is actually a pretty strong argument and does have an impact on the way that the law treats targeted killings. I just wish that I hadn’t had to read that paragraph over several times to figure out what it was actually saying.
I complained earlier about the sensationalism around the recent Levy Committee Report in Israel. I am looking in more detail at the parts that have been translated into English, and the more I see, the more vindicated my gut reaction seems to have been (ie this was completely blown out of proportion).
I also just went back and read the New York Times editorial that the anti-Israel left have been raving about since it slammed the report. What I saw was a little embarrassing for a paper of the Times‘ repute:
Most of the world views the West Bank, which was taken by Israel from Jordan in the 1967 war, as occupied territory and all Israeli construction there as a violation of international law. The world court ruled this way in 2004. The Fourth Geneva Convention bars occupying powers from settling their own populations in occupied lands. And United Nations Security Council resolution 242, a core of Middle East policy, calls for the “withdrawal of Israeli armed forces from territories occupied in the recent conflict.”
- There is no “world court”. The editorial must be referring to the International Court of Justice, which issued an advisory opinion (not a ruling) in 2004 that related to the security barrier being built by Israel and only tangentially to the construction of settlements. There are a lot of other issues with the judgment, but they are beyond the purview of this post.
- The Fourth Geneva Convention prevents civilian populations from being forceably transferred onto land that is under belligerent occupation. That is not the same as “settling”.
- That is what you call selective quoting. Res 242 did call for that, but the next paragraph called for this:
Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.
It’s funny how the anti-Israel crowd likes to forget that part. There is also the fact that the Resolution called for withdrawal from “lands captured”, not “all lands” — Israel has already withdraw from “lands” and has committed to withdrawing from other lands if a viable deal is reached. The other parties to the 1967 conflict? Well, Egypt complied with that second condition… 12 years later. It took Jordan another 15 years after Egypt and we have yet to see Lebanon or Syria even consider it, never mind the Palestinian Authority or Hamas.
Whatever else may be said about the Levy report, this is just sloppy journalism from the Times. Shame really.
There has been a lot of hysteria over the Levi Commission Report, released in Israel last night Australia time (for anyone who can read Hebrew, the report is available HERE. Unfortunately, my limited grasp of Hebrew does not extend to complex legal documents).
Like this for example:
Accepting the substantial elements of this report means this: no more occupation, annexing the West Bank, giving citizenship to Palestinians, end of Israel as a Jewish-democratic state. Or, of course, it could really become apartheid, and not give Palestinians citizenship at all. This is what the Zionist Right is leading us to: the end of the two-state solution.
the Levy Committee avers that government encouragement of any construction conferred an “administrative assurance,” even if there were no legal and official permits issued.
Now, Israel uses the same British common law system as Australia does to form the basis of its legal system. I have never heard of any concept of “administrative assurance” that can be used in lieu of a permit. Generally, you have no permit, you can’t build.
There are a few other recommendations that also sound a little poorly thought-out, like removing various powers to evict settlers and making it easier to build settlements.
But then there’s this:
The committee recommends legalizing all the outposts even without a retroactive government decision, and to do so as follows: To issue an order delineating the settlement and designating the adjacent areas as needed to accommodate natural growth; to cancel the need to get permission from the political echelons for every single stage in the planning process, and to not implement demolition orders that have already been issued.
See, that sounds a little familiar. It’s similar, in a way, to something Ehud Barak was suggesting a couple of months ago. That sounds like Israel unilaterally annexing parts of the West Bank, which is altogether not a terrible idea IMO. It could reduce the bickering that goes back and fourth about borders and land swaps if Israel just says something to the effect of, “this is what we want, this is what we don’t want. You don’t like it? Make us a better offer.”
The committee also recommends the cancelation of the “bothersome use order” that allows the head of the Civil Administration to force settler-farmers off ostensibly Palestinian land, even if there is no Palestinian complainant … Levy believes that these are land disputes that the state should not involve itself in, but that should be sorted out before the courts. The committee, in fact, recommends setting up a special court to deal with land disputes in the West Bank.
That doesn’t sound like a terrible idea either – mostly because a court ruling is more binding than this strange state restraining order thing they have at the moment.
Finally, I’ll address the point about the Fourth Geneva Convention and belligerent occupation. I have looked into this at length, and it is basically true. The current international humanitarian law never predicted anything like the situation in the West Bank, so it is a huge grey area. Everyone who tells you it’s definitely legal or illegal is making laws where there aren’t any.
Irrespective of that, the current legal regime applied in areas B and C of the West Bank is a bizarre military administration derived from the Jordanian law as it stood in 1967 – it needs to be overhauled, and exercising some form of sovereignty is the only way that Israel could actually do that.
So basically, some good may yet come of this report. I’m also very skeptical of news reports on an 89-page document that was released a few hours before – we’re pretty much seeing reports on the executive summary. It’s never a good idea to jump to conclusions on these things.
In fact, in all probability, nothing will ever come of this report. It is dated 21st June – presumably when it was made available to cabinet, even though it only became public yesterday – meaning that the government has had it for over three weeks and hasn’t moved on it. My bet is that they won’t, this will be consigned to the massive vault of reports that caused a minor media shitstorm and were subsequently forgotten. The Israeli government must have somewhere.
There have been two undeniable tragedies over the past few days as two boats carrying asylum-seekers have capsized en route from Indonesia to Australia (fortunately, the latest one seems to have been rescued fairly effectively and the loss of life was far less, although there was still one dead and three still missing). As most readers would know, this has re-sparked the gigantic debate about Australia’s asylum-seeker policy – which has reached a fervour not seen since… the last time this happened.
There seems to be consensus that the government has to “do something” to “stop the boats”. Just what that means exactly is under fierce debate. There are three main options being pushed, so I figured that I would summarise these for all you lovely people and then give some quick thoughts on the right way to go.
1. The “Pacific Solution”
This is the Liberal Party’s pet policy – they want to replicate what was done under then Prime Minister John Howard and then Immigration Minister Phillip Ruddock. This solution is designed to provide strong disincentives for people to attempt to reach Australia by boat.
It’s kind of a two-pronged assault. Firstly, anyone who arrives in Australia unlawfully and then claims asylum will be given a Temporary Protection Visa (TPV) – meaning that they are permitted to remain in Australia until it is no longer dangerous for them to be in their country of origin, at which time they will be deported “home”. This is supplemented by opening an Australian-administered asylum-seeker detention centre on a tiny Pacific atoll called Nauru, so that no one who tries to reach Australia unlawfully by boat will actually reach Australia and there are no guarantees of ever getting there.
2. The “open arms” solution
I call it that with my tongue in my cheek. This is the line being pushed by the Greens and various “refugee advocates”. At its core, the argument is that any form of offshore processing of refugees is cruel and so we should process them all in Australia and let them into the community as soon as possible.
Typically, for the people who are advocating it at least, this is a very nice and well-meaning policy but is a little detached from reality and would create huge problems if put into practise. The biggest problem is that, contrary to this narrative, not all “boat people” are just really nice, desperate people who are fleeing horrible persecution to make a contribution to our great, multicultural nation. Some of them are that, but some aren’t. In fact, the easier it seems that it is to get into Australia, the more likely it is that people who are not genuine refugees will come over.
Once someone destroys their travel documents (as these “boat people” are want to do), it is very difficult to figure out exactly who they are. This results in a small but significant number of these asylum seekers fleeing not persecution for their race, religion or politics, but for their involvement in organised crime – or even terrorism. Ignoring that element of them is dangerous, it would take just one bomb on a major piece of infrastructure and the public reaction would mean that our borders are sealed permanently (not to mention the horrible loss of life that it would inevitably entail).
3. The “Malaysia
This was the brainchild of the Gillard Labor government and requires a little background. The most important thing to know is that the Pacific Solution worked – boats had essentially stopped coming in 2007 when Kevin Rudd was elected Prime Minister. The new ALP government then set-about dismantling the Howard/Ruddock policies, which they had been calling “inhumane” for years, and boats promptly began coming again and have been increasing ever since.
When running for the 2010 election, Julia Gillard – aware of the political difficulty that these boatloads of asylum seekers presented for her government – announced an “East Timor Solution”. This claimed to provide the same effect as the Pacific Solution, but was supposed to be somehow different because East Timor is a signatory to the Refugee Convention (a weak argument as the Nauru centre was Australian-administered, so it was not really material whether or not Nauru had signed the Convention). Regardless, it transpired that Gillard had not seen fit to run this little idea past, you know, the East Timorese. Suffice to say it didn’t go very far.
After East Timor collapsed, the government was desperate for a solution and began floundering. They then had the genius idea of announcing that they would negotiate a solution with Malaysia after they approached Malaysia, but before they had actually negotiated a solution. Malaysia was calling all the shots and they knew it, so they eventually agreed on a kind of asylum-seeker trade: they send 4,000 Burmese Christians in exchange for 800 (presumably) Iranian and Afghani Muslims from Australia. They hate Christians, we hate Muslims, everybody wins.
After the huge outcry in Australia regarding the way refugees are treated in Malaysia (let’s just say that it involved caning of bare buttocks), the government did get Malaysia – not a signatory to the Refugee Convention – to agree to respect the refugees’ rights. In an explicitly non-binding agreement.
Problem for the government was that the Convention is annexed to the Migration Act and explicitly referred to in the provisions allowing asylum-seekers to be processed offshore, so the High Court ruled that the decision to implement the Malaysia Solution was not made according to the power conferred on Chris Bowen, the Immigration Minister, which requires that the rights and protections of refugees under the Convention are respected. The government then tried to remove these protections, but this was (thankfully) blocked by pretty much everyone else in Parliament.
Offshore in general
So here comes the real analysis (woohoo!). The most common argument against offshore processing (chiefly the Pacific Solution) is that it made no real difference and the number of unlawful arrivals in Australia is just a reflection of global trends (see, eg, this). This claim has absolutely no basis in any fact or evidence. The numbers speak for themselves really. Consider this table first from the Australian Parliament:
Now, look at this table from the UNHCR:
Share of main receiving countries of asylumseekers in total number of applications
That is very clear evidence that Australia’s number of asylum seekers has not been keeping up with global trends. To the contrary, the number of asylum claims in Australia relative to the rest of the world has tripled since 2007. I don’t need to bother with more sophisticated statistics (although many have), anyone who looks at that data without blind bias can see that something made Australia far more attractive to asylum seekers in 2007 than it had been before.
On the other hand
I now have to write what is possibly the most difficult thing that I have ever written on this site.
Greens leader Christine Milne has a point.
Australia takes a negligible number of asylum seekers from Indonesia and Malaysia (somewhere in the neighbourhood of 60p/a) – the two sources of these boats. Both of these countries are not good places for refugees and in Malaysia they are actually persecuted, meaning that they still have refugee status and (as mentioned before) it is illegal to deport any refugee back there.
Disincentivising the journey is all very well, however it will not work so long as the incentive to come is still stronger. The refugees in Indonesia and Malaysia know that they have almost no hope of ever being resettled, they cannot go home and they cannot stay where they are. Getting on a boat is their only hope and while that remains true, they will continue to come.
The solution requires that incentive to be changed as well. Australia needs to substantially increase the number of refugees that we take from Malasia and Indonesia, it’s as simple as that. Once we are taking several thousand a year, they will know that they would probably make it here eventually if need be and the UNHCR camps would look more appealing than our detention centres.
Given all of the above, here is the ideal solution in my opinion:
Combine the Pacific Solution and the surprisingly lucid Milne solution. Have a processing centre on Nauru (which, by the way, does great things for the impoverished island nation as well) but also commit to taking a few thousand asylum seekers from Indonesia and Malaysia each year. It will make the boat journeys seem unappealing while providing another option for the truly desperate people in Indonesia and Malaysia.
And no deportation to Malaysia. I was almost throwing my iPad against the wall this morning while Gillard was on it trying to sell that solution as though it is really the humanitarian thing to do. She was advocating for the removal of all the refugee rights under the Convention as ratified in Australian legislation, simple as that. It is disgraceful and inhumane – no amount of spin will change that. The principle of non-refoulement lies at the very core of the refugee framework, which means that you cannot deport someone fleeing persecution to a place where they will still be persecuted. According to Gillard and Bowen, refoulement is the humane choice. Go figure…