Plus ça change...

Unsurprisingly (for me at least, and for others I'm sure), there has been a trickle of stuff in the news noting that Obama may not be quite glorious defender of 'international legality' that we thought he would be. So we've got news that Obama will continue with the extraordinary renditions policy of the Bush administration (sans the 'torture'; also people need to get their terminology straight: 'rendition' or 'ordinary rendition' is taken to refer to transfers regulated by law - e.g. extradition; extraordinary rendition is any extra-judicial transfer and so as such doesn't necessarily involve torture). In a similar vein, we have the news that the Obama adminstration is going to maintain Bush's 'state secrets' policy.

Now, I'll reiterate, this does not surprise me. Firstly, extraordinary rendition was a process that was authorised and used by (at the very least) the Clinton administration, there's a continuity that runs all through from Clinton, to Bush and I suspect to Obama, not to say that there aren't differences but simply that much of the basic 'shape' of the policy is dictated by particular imperial concerns. This links into my second point, I've been quite keen to argue that the legal policies of the Bush administration are very similar to the basic orientation of the Clinton regime (as was spectacularly displayed in Kosovo) basically, I think that - as a response to an obvious decline in hegemonic power for the US - there has been a drive to legally entrench the US' ability the intervene anywhere, at any time 'in the interests of the international community'. The idea that the election of Obama would be able to alter this was always - for me - a bit silly, because I believe that this policy is the reponse to deep-rooted structural problems.

That being said, what initially surprised me was the degree to which Obama has remained within the war on terror paradigm. I was thinking that perhaps we would see a move back towards the old 'humanitarian/liberal interventionism' model because - as Richard Seymour notes - he's got to sell it to his constituency. But on further reflection, I think that Obama's continuation of the 'war on terror' model (which Norm of normblog has gleefully and constantly noted) makes sense in international terms and internal to the US (particularly internal to the US).

So firstly, there is Obama's whole 'post-partisan' thing. The war on terror has significant cross-party appeal in the US. This is linked to the fact that ultimately it strikes me as much easier to defend the war on terror to the American electorate than a policy of liberal interventionism. This is because it is really quite difficult to pitch liberal interventionism as being in people's immediate self-interest (I mean, part of the whole strategy is to defend the idea that such interventions are not self-interested). The trick is to be able to make self-interest coincide - nationally and internationally - with the putatitve interests of the international community. The war on terror is a much easier way of doing this, and earns politicians 'realist' street cred. Internationally, although the war on terror may look like a self-interested power-grab by the US, I still think it holds up as more convincing than a programme of explicit liberal interventionism, especially as it doesn't have so many historical resonances with colonialism. Furthermore, a lot of Obama's base seem to be sold on the idea that post-partisanship requires sacrifice, meaning they are willing to give him an easy ride, telling in this respect is the muted (or non-existent) opposition (and indeed support) of various human rights groups to the retention of extraordinary rendition policy .

Secondly, I've always emphasised that - in terms of form - liberal interventionism and the war on terror are very similar - insofar as both attempt to articulate a legally entrenched hegemonic power. But increasingly, the two are intertwined in terms of substance too, this is particualrly evident with the claim - made a while back by Bush - that liberal, democratic polities are less likely to give rise to terrorism; and the mirror claim of liberal interventionists that liberal interventions stop terrorism (or refugee flows etc.). This being the case, I really do think that much of the difference between the two is really one of emphasis, which is why liberal bombers were able to come on board so quickly (another obvious point is that in the clash of civilisations rhetoric that forms the bedrock of the war on terror, the enemy is seen as illiberal, fundamentalist barbarians).

But, onto my third point, this difference in inflection can be crucial. A few years ago Ryan Goodman wrote an very American political-sciency (but nonetheless good) article on Humanitarian Intervention and Pre-texts for War, in it Goodman suggests that humanitarian intervention is actually a fairly terrible pre-text to go to war, insofar as it creates 'blowback'. Basically, by phrasing the intervention as humanitarian it sets up a certain series of expectations on the part of the population of the intervening states. These are to do with the methods of warfare (hard to say carpet bombing is humanitarian), other justifications (hard to act explicitly in your self-interest) and how you negotiate (you should be aiming as quickly as possible for peace). Goodman argues - fairly convincingly - that humanitarian intervention tends to limit the publically acceptable scope, extent and methods of warfare as compared to - say - war over territory. But such considerations are much more difficult in the case of a war that is addressed against terrorists - indeed precisely because terrorists are non-state actors who live amongst the civilian population the opposite considerations may come into effect - of course schools, hospitals etc. will be blown up but that's the terrorists' fault. So, here, the utility of the war on terror argument is that it maintains the scope of humanitarian intervention, maintains also its transformative aims - liberal deomcracies/western protectorates don't produce terrorists, but totally manages to avoid the restraints that humanitarian intervention might bring into play.

So, I suspect Obama is going to stick with the war on terror. Obviously, it will not be exactly the same, notwithstanding the retention of extraordinary rendition, I expect some of the more overt abuses will be significantly toned down. There's also going to be less posturing on the issue of international law and legal nihilism. I also think that there was something of a civilising influence that humanitarian intervention invoked (however tiny) and the scope of the war on terror is at least as wide as humanitarian intervention (and we need to avoid the idea that the war on terror was ever just about deploying military force).

We really should have seen this coming, since Obama only ever seemed to campaign as being a more sensible manager of the war on terror.

Newey on torture

Soz folks, nothing really substantial again, just thought I'd flag up this interesting little piece on torture by Glen Newey in the always invaluable London Review of Books. Particularly relevant to my mind are these passages (emphasis mine):

Sometimes the surgery ran into complications. For instance, Article 2.2 of the Convention against Torture, to which the US is signatory, states: ‘No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.’ By the standards of legal covenants, this seems pretty plain. But the waters muddy when attention turns to the definition of ‘torture’. A reservation entered by the US to the Convention specifies that torture is to be understood as set out in the US Constitution. Sands argues that a second memo signed by Yoo wrongly advised Bush’s counsel Alberto Gonzales that the reservation meant that the US could legally set a higher threshold for physical and mental torture and remain in compliance. But, as Yoo’s memo to Gonzales points out, it’s not clear that any of the provisions of the Vienna Convention (to which, anyway, the US is not party) limiting the scope for treaty parties to enter reservations apply. Sands remarks that the US ‘could not change the international legal obligation’ (his emphasis); but that still leaves room to specify more closely what kinds of act the obligation proscribes.

This I think it absolutely correct, and something that has to be more readily admitted by the anti-Bush brigade. Much of the argument was not that 'torture is ok' in times of crisis etc. A lot of the most sophisticated argument was simply that the acts in question did not meet the relevant threshold of torture. Certainly, a lot of people are coming out of the woodwork at the moment saying 'actually it was torture', but I don't think that negates the fact that at the time the strategy of the Bush administration was simply to say - look, we're allowed to use some methods of interrogation that go further than torture - of course we are.

[And this is a problem that I think international lawyers have to face up to squarely. It seems to me that international law 'forces us' to think like a bourgeois state, insofar as people making legal argument have to accede to 'reasonable' demands such a state might make, like - 'well of course we have a right to defend ourselves' or 'well of course we are allowed to interrogate people' etc. It strikes me that once you step into this particular discursive field everything just becomes a matter of degree, which makes things rather murky. A case in point is - I think - Israel, once we adopt the 'legal' viewpoint we are forced to acknowledge the 'reasonable' demand that Israel must have some recourse against Hamas rockets, once you're in this place you also have to accede to the reasonable demand that this right can't just extend to 'killing the same number of people' and you're already at least entertaining Operation Cast Lead as a possibility. This is the exact same thing that goes on with the war on terror, once you enter international law's discursive field on these issues and you are forced to 'think like a state' it becomes very difficult to resist a good deal of the war on terror's logic.

This is obviously quite badly phrased but I think there could be something to this. Note to self - link this back to Orford's stuff on international law as 'narrative'.]

Sands rues the fact that the law was fitted to the policy. But law is not an organic whole for politicians and bad lawyers to mangle. No doubt the mangling is real enough. But law is a shape-shifting congeries of norms, precedents, opinions, opinions about opinions, claims to authority, and – when reasoning fails to deliver a decisive outcome – power-broking, for example by vote, as in the Supreme Court’s verdict on Hamdan.

In other words, it’s all a bit like politics. Faith in the ‘majesty’ of the law as transcending or trumping the grubbiness of politics looks like what it is: a reversion to charismatic authority. That is why those, like Ronald Dworkin, who like to supplement or supplant democracy with judicial decisionism, think that there must always be a ‘right answer’ to questions of law. The right answer turns out to mean identifying the rights that right-thinking judges think we should have.

Firstly, one is tempted (and Newey may already be saying this) to push the last sentence a bit further. Because when he says 'right-thinking' judges this can surely only refer to 'judges that share my views', as Schmitt noted all those years ago, the apparent recourse to judicial decisionism is always always just a displacement of the political. So actually, I don't think we're dealing with - and indeed we cannot be dealing with - a simple reversion to charismatic authority, even Dworkin has judges who he doesn't like (especially as he's from the US) Indeed, to my mind, anyone that reads Dworkin cannot help but notice that he really, really sounds like a liberal-Schmittian (I know the term sounds like a contradiction in terms, but read him and you'll see what I mean), simply putting a happy gloss on Schmittian decisionism.

Secondly, I think the whole 'fact that the law was fitted to the policy' is something that has to be examined further. Ultimately, I think, as does Newey, that if the law is indeterminate - or at least under-determinate enough that there can plausibly be a number of 'right answers' - what else do political actors do except shape the law around their policies. That being said, it's not necessarily the conscious, cynical manipulation that this might imply (although this obviously happens too) I often suspect that the legal justification advanced is 'naturally' the one that fits. This could also - I think - be linked to the 'state perspective' that international law provides; international lawyers are naturally pre-disposed towards thinking 'reasonable' interpretations are those which reflect state interests. There's also the third - empirical - consideration to make, from what I can see this is the standard procedure for states: they have a problem and they ask their legal advisors to evaluate its legality, with this there is going to be explicit and implicit pressure to 'make the case' (and this may be the way the question is put) for the policy.

I think this deserves more, but my mind has kind of turned to mush. But I will close by talking about some of the interesting observations of others. Firstly, Scott Newton, at the thing in Glasgow (who has a wonderful turn of phrase) described the legal form as constituted of subjects who are 'operated' by social actors in a strategic context. Secondly, China Miéville on recognition (in Between Equal Rights, 2005: Brill):

Of course to claim, based on this political understanding of recognition, that such recognition is illegitimate, is to stick to the implausible theory of international law as a body of rules. If it is instead understood as a process, then such politically informed manipulation and creation of legal facts is precisely the constitutive fabric of international law itself. Recognition, in this case, might be criticised as imperialist, immoral, stupid, or many other things, but it is nonsensical to criticise it as illegal.
p.236

If international law is a constitutive part of the political process (if indeed we are to take international law seriously) then it is no surprise to see that political argument is expressed in legal terms and that international law is intimately interconnected with international politics.

Duncan Kennedy on Gaza

Sorry, no substantive content once again (some small stuff is coming, but I've been caught up in doing a few other things too), but just wanted to flag up CLS supremo Duncan Kennedy's take on the Israel assault on Gaza (which I was sent via Akbar Rasulov), much of it is the standard - but necessary - analysis of the historical context. But there are some very interesting passages to quote:

Numerous observers have charged Israel with committing war crimes during the war. Without downplaying that aspect, I think it is important to understand the 1,300 Palestinian casualties, including 400 children as well as many, many women, versus 13 Israeli casualties, as typical of a particular kind of “police action” that Western colonial powers and Western “ethno-cratic settler regimes” like ours in the U.S., Canada, Australia, Serbia and particularly apartheid South Africa, have historically undertaken to convince resisting native populations that unless they stop resisting they will suffer unbearable death and deprivation. Not just in 1947 and 1948, but also in Lebanon in 1982 and 2006, Israel used similar tactics.

Causing horrific civilian deaths is often perfectly defensible under the laws of war, which favor conventional over unconventional forces in asymmetric warfare. The outright “crimes,” like the My Lai massacre, Abu Ghraib, or Russian massacres in Afghanistan and then in Chechnya, are less important for the civilian victims than the daily tactics of air assault, bombardment, and brutal door-to-door sweeps, meant to draw fire from the resisters that will justify leveling houses and the people in them.

It's very important to understand that much of what Israel does is motivated by the classic colonial problematic - 'what the hell do we do with the natives!' (but with some very modern twists). Indeed this really has to be emphasised more, because it helps frame the actions structurally, and is frankly more convincing than reducing everything to individual 'electoral moves'.

I think the second paragraph is absolutely right - and something that the left really has to emphasise. Although there may well have been Israeli war crimes, the greatest 'crime' of all - this particular assault and the attendant loss of life, but also Israel's long history of oppressing the Palestinians - is effaced by the highly specific focus on certain actions and events (I know I keep banging on about this). Indeed, without even going back to the wider context, the initial assault - and the massacres it occasioned - can quite plausibly be argued to be legal.

[As an aside - there was some recent news about Barak threatening a "disproportionate" response in Gaza, but this is silly. As I've often said, we have to ask 'proportionate in relation to what?' whenever we talk about proportionality. In the case of Gaza, the assault need be proportionate to the number of lives lost. Instead things get much more nebulous - especially because a lot of the war on terror legal argument - because what is the 'proportionate' response to a continuing threat? Bear in mind that lots of legal commentators accept the initial invasion of Afghanistan as a legitimate example of self-defence as against the continuing threat of terrorism, in other words, the proportionate response to a continuing threat was the invasion of a country and the overthrow of its government (transformative self-defence); applying that logic to the Gaza situation, it may be quite difficult to think what exactly a disproportionate response would look like].

As Kennedy notes, the law also embeds a certain model of warfare (again I talk about this a lot but I think it's important; if any of you have the time read this, although I'm not always enamoured with postcolonial stuff, this particular essay is fairly awesome) , which tends to support technologically advanced, centralised militaries as against more diffuse forms of combat (this maps perfectly onto the 'two-track' system of international criminal justice Zolo talks about) - viz. the rules are rules of imperial war. So, we might want to talk about war criminals - I'm uncertain about this and I think it brings its own problems - but we certainly need to criticise the law too, because it's hugely deficient.

Our goal is not to tie down the army, but to give it the tools to win in a way that is legal

Really interesting article I got sent via China Miéville on the international law division of the IDF, I will comment properly on this at some point, because it strikes me as something that could be theoretically rather useful:

The idea to bombard the closing ceremony of the Gaza police course was internally criticized in the Israel Defense Forces months before the attack. A military source involved in the planning of the attack, in which dozens of Hamas policemen were killed, says that while military intelligence officers were sure the operation should be carried out and pressed for its approval, the IDF's international law division and the military advocate general were undecided.

After months of the operational elements pushing for the attack's approval, the international law division headed by Col. Pnina Sharvit-Baruch gave the go-ahead. In spite of doubts, and also under pressure, Sharvit-Baruch and the division also legitimized the attack on Hamas government buildings and the relaxing of the rules of engagement, resulting in numerous Palestinian casualties. In the division it is also believed that the killing of civilians in a house whose residents the IDF has warned might be considered legally justified, although the IDF does not actually target civilians in this way

Edit: again from China, the plot thickens:

Prime Minister Ehud Olmert came to the defense of Col. Pnina Sharvit-Baruch on Sunday, speaking out against those seeking to prevent her from taking up a teaching position at Tel Aviv University when she finishes her IDF career in the coming weeks.