Rules are made to protect us
Originally posted here
I’ve spent the last half hour staring at a blank page and thinking about what I should write. There are so many things playing on my mind at the moment – world cup politics, Charles Haughey, Big Brother, an historic parades agreement in Northern Ireland but still the page remained blank because what I really want to talk about is this: why have we decided that rules are made to be broken? The theme, of course, runs through all of those issues – world cup referees are being extra-vigilant for unsporting behaviour, Charlie was a rule breaking rogue who many secretly loved in typical ‘fair play you boy’ Irish style, the Big Brother house is full of more back stabbing, bitching, rule breaking vindictiveness than the Dáil bar and does anyone really believe that all the rules historically made in Northern Ireland will ever be adhered to? The culture of rule breaking is one thing when it comes to individuals or (relatively) small-time rule breaking of this nature. The thing that worries me is how rule breaking is becoming a pervasive pattern in international relations.
I’m talking, of course, about the ‘War on Terror’ (yes – again…) and more specifically about renditions. In its report released just last week the Council of Europe named a number of European states who have all been involved in some way with renditions or with the detention of suspected terrorists in secret camps. All of these countries have signed up to the European Convention on Human Rights. All of these countries have pledged publicly to abide by simple rules that are designed to protect human dignity. These rules are realistic – you can suspend some in times of emergency if you need to; they are international rules designed to help a country navigate their way through times of intense difficulty and strain when passions may overcome reason. They reflect our basic concepts of moral right and wrong; the basic concept of the veil of ignorance; the basic concepts of humanity.
Some of these governments willingly assisted in renditions (this is as a matter of fact in relation to Bosnia & Herzegovina), some governments may have willingly turned a blind eye or invoked a doctrine of (misplaced?) trust (such as Ireland), some governments appear to have created and run secret detention camps on their territories (Poland being the most amazing and surprising example given its history) but no country – not a single one – could say that they could not have had a suspicion that they were breaking the rules or assisting in the breaking of rules. Rules which, as I said, are fundamental to all of us – we are all human, dignified and vulnerable. We make a contract with our governments and those governments with us and with other states through national and international covenants where they agree to act in a particular way. These governments, including our own, are systematically violating those contracts and breaking those rules
We can’t do anything about other governments – although the EU will need to put pressure on Poland with its increasingly appalling human rights record – but we can do something about our own. Those world cup referees are pretty light fingered with their yellow cards, and I think it’s time our government got its final warning as well. Play by the rules guys, or there’ll be more than just yellow cards this time next year.
I’m talking, of course, about the ‘War on Terror’ (yes – again…) and more specifically about renditions. In its report released just last week the Council of Europe named a number of European states who have all been involved in some way with renditions or with the detention of suspected terrorists in secret camps. All of these countries have signed up to the European Convention on Human Rights. All of these countries have pledged publicly to abide by simple rules that are designed to protect human dignity. These rules are realistic – you can suspend some in times of emergency if you need to; they are international rules designed to help a country navigate their way through times of intense difficulty and strain when passions may overcome reason. They reflect our basic concepts of moral right and wrong; the basic concept of the veil of ignorance; the basic concepts of humanity.
Some of these governments willingly assisted in renditions (this is as a matter of fact in relation to Bosnia & Herzegovina), some governments may have willingly turned a blind eye or invoked a doctrine of (misplaced?) trust (such as Ireland), some governments appear to have created and run secret detention camps on their territories (Poland being the most amazing and surprising example given its history) but no country – not a single one – could say that they could not have had a suspicion that they were breaking the rules or assisting in the breaking of rules. Rules which, as I said, are fundamental to all of us – we are all human, dignified and vulnerable. We make a contract with our governments and those governments with us and with other states through national and international covenants where they agree to act in a particular way. These governments, including our own, are systematically violating those contracts and breaking those rules
We can’t do anything about other governments – although the EU will need to put pressure on Poland with its increasingly appalling human rights record – but we can do something about our own. Those world cup referees are pretty light fingered with their yellow cards, and I think it’s time our government got its final warning as well. Play by the rules guys, or there’ll be more than just yellow cards this time next year.
Fiona,
I've just quaffed (?) a few in celebration of our daughter's graduation from high school this evening so I hope this is halfway intelligible. I'm so glad you're back! I want to chime in later about this post, as I have a few things to say about what I believe to be a rather ubiquitous 'principle of transgression' in affluent cultures fully penetrated by a
capitalist economic ethos.... But I better save that for when I'm sober. Sorry, I usually don't drink, but I made an exception this evening.
All good wishes,
Patrick Seamus O'Donnell
(in the states)
Posted by
Patrick S. O'Donnell |
2:51 AM
Sadly, the issue of how to deal with diffuse terrorist networks is far less simple than you acknowledge. It is not (and into the future will not) simply be a matter of applying the old rules, which you say are clear and simple. Maybe so. But the current war (that's the so-called "so-called War on Terror") will need new rules. They must be crafted. And the U.S. is the best placed to craft them. Sadly, the current administration ha shown little enthusiasm for such a task. I'm completely against torture, and I think Guantanamo should probably be shut down. But the alternative is not simply to retreat to what we knew before and complacently act as if current legal frameworks will be sufficient for what's coming down the tracks.
Posted by
Karole |
4:12 PM
Patrick - thanks ever so much for the comment and congratulations on the daughter's graduation!! Off to college soon - that'll be a big change I'm sure!!
Karole - why? Why will this require new rules? Why is America the best place to form them? You can't just make assertions like that, you know? How do you know what's coming down the tracks and that current legal frameworks wouldn't be sufficient?? I mean, the whole argument is based on unsusbtantiated claims.
Posted by
F |
11:32 AM
Fiona: The world had changed. The proliferation of weapons of mass destruction and globalised terrorist networks are figments of Tony Blair and George Bush's imagination. Add the revolutions in communication and transportation; chaos caused by failed states, such as Afghanistan in effect was pre-2001, will have consequences far from their own borders in such a world. These are not "unsubstantiated claims"; these are facts.
Now, if you have read Mr. Marty's report you'll be aware of the type of situations in which counter-terrorist forces have found themselves, and the type of dilemmas that are faced. There will have to be legal changes as a result of the way this war will have to be fought. You can pretend otherwise, but you'd be plain wrong.
By the way I should clarify my point about the U.S. being best placed to craft new international law, I meant it was best placed to lead such an effort. Emphasis on leadership. After all, international law by definition must be agreed to by all responsible states. The reasons I say the U.S. is best placed for such a role are: its agreement is indispensable, it is the most powerful state in the world, it is a liberal democracy, it is an exemplar of the ideas that make our age the freest in history. And, you know this as well as I do: When the chips are down, they'll be the ones sorting out North Korea or whoever needs sorting out. Europe has all but demilitarised itself after all. So we're sod all use at defending the values we say we stand for, if trouble brews anywhere outside our own borders. Or even on our borders as we showed in the 1990's.
It's clear where you're coming from: You say, in the typically indirect way lawyers tend to favour, that we shouldn't trust the United States. You're entitled to your opinion. But if we live long enough to see America's position erode so much that it decides to turn in on itself and go back to isolationism, we'll be sorry, and quite worse off.
Posted by
Karole |
1:02 PM
Oh dear, oh dear: My firsy sentence should read "are not figments".
Posted by
Karole |
1:03 PM
Karole I don't doubt that the challenges that states are facing have changed, however I don't think that they have changed to such an extent as to scratch the old rules and replace them with new. You know as well as I do that many if not most international laws protecting rights can be suspending in times of emergency PROVIDED that emergency is shown and that the suspension is proportionate. Other rules can NEVER be suspended. Now if the proposition is that those peremptory norms should be suspendable a fairly hefty burden of proof will have to be discharged to convince me and most others I suspect of this necessity. The rules as they stand can be sufficient IF people are willing to play by them. We're unlikely to reach agreement on this point so ok, we can leave it to one side
If I were to agree that the rules need to be changed (I'd push, by the way, for a proper definition of agression in the Rome Statute as something that should be done to help counter terrorism), then who should lead the charge? Should it be America? All the things you mention are good points in favour, however one is also a point against - America's unipolarity. Added to that is America's understandable passion in this question. I don't know if you're familiar with Madison's writings on lawmaking but his points on lawmaking in times of war are very salient today - we shouldn't because we can't make good and fair laws in times of passion. That's what extant treaties are there for. If the extant treaties are insufficient then let working groups in the UN or whatever institution you want (I know there's a bit of an aversion towards UN in these discussions sometimes so I'm happy with new institutions or Slaughter networks) make the rules in a consultative and transparent process in which America is a vital partner, yes, but not IN CONTROL.
I don't distrust America - in fact I don't really have a problem with the notion of American exceptionalism or a lot of classical neo-conservaive foreign policy theory - I just distrust situations of a concentration of power in one organ.
Most people who support American policy in this or describe themselves as neo-conservative (I don't know whether you do or not) speak very highly of the US system of separated and balanced powers. They should read The Federalist Papers and see what that system was introduced - to ensure no one organ can abuse power or overly concentrate it in themselves. There are lessons in that for international law making.
Posted by
F |
1:59 PM
That makes an awful lot of sense. I know you probably didn't intend to suggest as much, but I don't say we should throw all of international law and start from scratch with America dictating to the rest. But whether by slow accretion of customary norms, by new (possibly informal - or less formal and rigid than the UN - institutions) international law, and domestic legal frameworks are going to come under strain. And by the way, lest there be any doubt, given the subject of your post, the legal norms I have in mind as correct candidates for alteration in future do not include the anti-torture convention.
Sorry for jumping the gun, if I did so, above.
Posted by
Karole |
2:24 PM
On your unipolarity, that's a vague term, isn't it? Especially when it gets enmeshed with talk of "exceptionalism". But that when it comes to international law, a degree consensus among responsible states is needed. If you mean no more than that, I agree with you.
Posted by
Karole |
2:28 PM
On your point about aggression, see this: http://www.opiniojuris.org/posts/1150711864.shtml
(although you may have seen it already)
Posted by
Karole |
2:31 PM