It’s 1… 2… 3… I’m still none the wiser.

I’m going to keep this post brief. Along with millions of others, I tuned into the US Presidential debate in Las Vegas last night to see what would come of (borrowing from The Daily Show) Democalypse 2016’s showdown between a deep fried Cheeto versus the singularly most qualified American to run for office – with the exception of incumbent Presidents. It’s already clear which way I see this match-up, but that doesn’t necessarily mean I’m a happy lawyer this morning.

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The next US President will appoint 2-3 Supreme Court Justices; affect next 25 years of American legal development

Sure, Hillary wiped the democracy floor with Donald: one came over-prepared, the other with over prepped hair. It was not much of a contest as we were swiftly reminded of how factually stuffy the Democratic candidate can be (see Q1. Literal vs Living Constitutional interpretation; Q2. 2nd Amendment & the Heller decision/Roe v Wade), and how the guy with R beside his name could make any question about his ‘bigly greatness’ (‘Supreme Court nominees? I have made a list of 20!‘). It was clear which of these two individuals is fit, ready, and competent to be the commander-in-chief, as well as America’s First Diplomat. It was like visiting the slaughterhouse and finding out how sausages are made – on the same day.

However, we’ve all focused so much on the personality of the candidates on both sides that we have forgotten what these debates really are: a glimpse into the next 4 years of geopolitics and international relations.

rare-vintage-rolling-stones-concert-snapback-baseball-hat-cap-0696a32d31c62b27a29b9ef1c011ec89I am not an American. I have Americans in my immediate family who reside in the continental 48, and have great admiration for the idea of America and the American dream – both which are sadly faded like a Rolling Stones ball cap you refuse to offer up to the moth gods.

all_over_the_map_anim_500_clr_13636The US Presidential debates are a crucial platform that we here in the UK and elsewhere in the world, particularly in Russia, observe with great attention knowing that this is the 50/50 split options in foreign policy that will be affecting all of us in coming years. The only thing I can glean from the debate is what I already knew: Trump will repeat praise from any source, including a warmongering Kremlin, right up until somebody with better sense leans in and whispers to him “You are running for the US Presidency, not the Russian.”

That’s not to say that I wouldn’t like better relations between NATO and Russia – though I fear war is coming, I absolutely would encourage the avoidance of such a conflict brimming with the possibility of a nuclear exchange. Trump mentioned that he thinks Putin has outplayed Hillary. He’s half-right. Putin’s long game is legendary, and he is currently exercising his realpolitik muscles to their fullest. However, the suggestion that Trump is a suitable adversary is laughable – Hillary may face a credible opposition from the Kremlin, but Trump is little more than slight speed bump at the office car park to Putin – the former KGB operative wouldn’t even think about Trump 5 seconds after he rolled over him in the geopolitical arena.

The economic discussions about global trade were also abysmal. All we heard was ‘Hillary is for TPP, Hillary is not for TPP’. Despite popular opposition based on hypothetical risks to special interests in the USA, greater trade relationships are applaudable. Sorry anti-globalisation folks, the liberalisation of markets around the world have been the largest single contributor to peace and security throughout the world.

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Hardly a ‘decisive’ or ‘overwhelming’ result considering 17.4 million votes represents 34% of all eligible voters in the Brexit Referendum (38% of registered voters). But we’re doing it anyways, because… democracy.

Not saying it’s perfect – 70 million refugees and still eye-watering levels of poverty around the world suggest there’s still massive work to be done. But TPP, much like the TTIP agreement between the EU & America, actually increases value in these countries. We, in Europe (esp. UK) and the US are haemmoraging economic opportunities based on populist opposition informed by a YouTube video they watched after binge watching Homeland on Netflix. Say what you will of Donald Trump and his followers, we have our own skeletons in Europe that are coming around to air themselves as they may from time to time.shaking_head_in_disgust_anim_500_wht_14992

Will Hillary win on November 8? Yes, very very likely.

Am I confident that I have a clear understanding of the international and military policies that will impact globally for the next four years? No more than I was when this circus pitched its democratic tent. And for that reason, I’m concerned. There needs to be clarity, and hopefully (and despite destroying her Republican rival) she will continue to reach out with information to inform both the US electorate and the rest of the planet as we march inexorably towards the conclusion of this dark, dismal chapter in the tale of democracy. I’m not in a rush to test whether 2020 promises more of the same or worse…

The Road to PhD: Day 1 – Application and Ideas

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I have spent the last year or so struggling to determine where my career should go next. As a matter of background, I wrote my LL.M Thesis on the Scottish Referendum and the international legal aspects that should inform that process. Necessarily, my interests were more than academic – research and writing must eventually be tested in the crucible of reality. In this instance, that meant continuing observations and analysis of the Referendum, including the aftermath. (I authored a submission to the Smith Commission post-referendum with regards to the implications of the promises for further devolution and constitutional change during the campaign.)

This time has come and gone, though it remains to be seen as to what constitutional changes will be implemented – change that will only come after the next UK General Election in May.

stick_figure_hold_earth_1600_clr_1925However, many of the questions posed by the Scottish referendum, in conjunction with events in Ukraine (Crimea and the Eastern Regions) and so-called Islamic State (Syria and Iraq), have created a significant dearth of opportunity for considering what may, for some, be a straightforward question: What is a State?

More specifically, it is likely to be the case that my PhD will examine the role that international legal theory plays in the creation of new states, juxtaposed against the looming backdrop of practical reality and pragmatic geopolitical policies. (Fun stuff, I know…)

Today has been carving out some supplementary chapter headings as a roadmap for my research. I hope to use this template to formulate the content of the PhD application itself, which would then be submitted to a number of institutions for consideration. The key elements in deciding which universities to apply to comes down to which faculties contain relevant experts on this topic, capable of ensuring that I keep to both the project path and within the relevance of international/constitutional law. That said, I do have a couple of institutions that are top of that list in my mind…

To elucidate on the central motivation behind the PhD, I offer the following thought. The experience of Québec and Scotland showed a certain acceptance that a particular domestic constitutional arrangement can be made whereby a sub-state territory may gain independence and attain statehood without violence or conflict. The main idea here would be that the parent state would immediately give legitimacy to the newly-emerged state should the constitutional order be satisfied. However peaceful and civilised that arrangement may be, international law would have had little to no input on whether the international community  at large would recognise the legitimacy of the emergent state. The prevailing declaratory theory of statehood takes only into consideration that a state has (a) a permanent population; (b) a defined territory; (c) government; and (d) a capacity to enter into foreign relations. (These are collectively referred to as the ‘classical’ or ‘Montevideo‘ criteria of statehood.)

table_of_the_world_1600_clr_8705There exists a competing theory of statehood – the constitutive theory. To date, it has been rejected by various courts (including the International Court of Justice in The Hague). At its core, the attainment of statehood status depends on the international recognition of a particular state by other states. As recognition is primarily a  political decision, not a legal one, criticism for this theory is understandable – erstwhile-legitimate states may be denied a ‘seat at the top table’ and all the privileges that are commensurate to being a primary state actor in the international arena.

However, suggesting that there is no legal defined process under which a sub-state territory may rely upon for guidance (for which the current theory does not make account) leaves open the process to both political perversion and systematic abuse. In essence, even having the goalposts moved still systematically retains the seed of hope; the absence of any international legal process effectively removes the goalposts altogether. And the absence of hope is antithetical to human condition. Hence, non-state groups and foreign interveners take advantage of this lacuna in the law to devastating effect: consider so-called Islamic State’s intent to establish a Middle Eastern state. It is arguable that they may, under the current declaratory theory, already fulfil the criteria for statehood. This is despite the illegality of their territorial seizure or brutal oppression of opposition. This was equally so for the Crimean peninsula in Ukraine.

And so, I hope to consider the experience and legal research surrounding this conundrum in law that may on paper prohibit illegality and remain ambiguous on state creation but cannot account for the factual reality that faces us today. It cannot be that such a fundamental basis of human society – the state – should remain as elusive as it currently stands.

 After all, what’s the worst that could happen?

Do not look at the Ark!
The Raiders of the Lost Ark (Copyright 1981 Paramount Pictures and Lucasfilm)

 

Alanis Morissette is God?
Dogma (Copyright 1999 View Askew Productions and STK)

 

Torture! What Is It Good For? Absolutely Nothing… Ever.

US Senate Report on CIA Detention Interrogation Program (Wikimedia)

The recent declassification of the US Senate Committee Report on the Central Intelligence Agency’s use of torture on detainees has (rightly) provoked public outcry – both against the use of Enhanced Interrogation Techniques (EITs) that amounted to torture, as well as backlash from the former Bush 43 administration over perceived flaws and misapprehended findings within the report. Those denouncing the report also believe declassification occurred as a result of the politicisation and demonization of the Republican Party, the CIA and the efforts of the US Armed Forces to combat terrorism over the last decade and a half.

However, there is a middle ground here where arguments have been made out by the public and certain government and intelligence actors that surreptitiously suggests that torture may be illegal and ugly, but given the shocking brutality of groups like al-Qaeda and Islamic State may morally and/or ethically warrant a moderate employ of torture (such as waterboarding aka simulated drowning), particularly when it results in actionable intel that ‘saves American lives’. Even more worrisome is the perception that such arguments are both intellectually brave and perfectly reasonable.

Neither are true.

In rejecting another set of ‘Enhanced Interrogation Techniques’, the Israeli Supreme Court in Public Committee Against Torture in Israel v The State of Israel (H.C. 5100/94) stated:

“This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties. […] law infringing upon a suspect’s liberty “befitting the values of the State of Israel,” is enacted for a proper purpose, and to an extent no greater than is required.” (at paragraph 39)

One accepts that we are in the midst of troubling and uncertain times. But in making such acceptance, one must outright reject the notion that somehow criminal acts such as torture are not absolutely internationally prohibited by law. There are few internationally criminal acts that rise to this level, including (but not limited to) genocide, war crimes, and crimes against humanity (wherein torture itself is a modality of the crime).

Furthermore, the notably absent comment from Bush 43 on the outcome of this report is not, as some pundits portray it, a mystery. Even Cheney should consider his public comments carefully. Taking a cue from the Pinochet extradition cases in UK for crimes committed in Chile during his military dictatorship, the absence of any domestic prosecutions for torture may lead to international indictments against the offending administration where it is clear that these acts were part of a systematic and executively-approved mandate. That terrorism provides a contextual narrative behind the impetus for such coercive techniques is both legally and morally bereft of evidential value. It is also a criminal act for which countries are legally required under international law to pursue prosecutions against domestic perpetrators or extradite to another state that is willing to do so (a principle in international law known as aut dedere aut judicare). The international prohibition on torture is both absolute and non-derogable (arguably jus cogens in nature), meaning under no circumstances may it be acceptable as a means of obtaining information – whether or not the information obtained is reliable.

And that is what is most disturbing about this: There is a not-so-tacit permissiveness in the report’s critics, where information gathered under torture is reliable, actionable and can point to intelligence and security successes (particularly in so-called ‘ticking bomb’ scenarios of an imminent security threat), that any country can wash their hands of the moral indignity of using torture is tantamount to criminal hypocrisy of the highest order. Most reasonable individuals are aware of the challenges that such a restrictive policy places before the security services (re-read the Israeli Supreme Court’s comments). Theirs is not by any means an easy profession. However, in defending and securing the future of any state, the best and most reliable source of unrelenting loyalty to that state comes from the unshakable and genuine belief that it is a state worth preserving. All states have moral and ethical issues, but it is those fundamental legal principles of that state that give real meaning to both the moral and legal character of its citizens and its representatives. It is submitted that the adherence to the strict and absolute prohibition on the employment of physical and mental torture is one of those fundamental principles and to abandon such would be an act of irreversible self-harm.

Lastly, sparing some criticism for those involved in the creation of international law: The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) definition of torture (Article 1) is ‘purposefully vague’. That is to say, rather than enumerating a list of prohibited acts as torture (which invariably leads to arguments that omitted acts are less than torture and thus acceptable), the definition focuses on (a) the intentional infliction of severe pain or suffering, whether physical or mental, (b) for such purposes as coercively obtaining information or confession from the subject or a third-party, and (c) where such acts were inflicted, instigated, consented to or in acquiescence of a public official or person acting in official capacity. The problem here is that even this definition is open to each state’s interpretation as to what ‘severe pain or suffering’ means (i.e., if moderately painful, it may not be torture). It is here in this darkest of grey areas where the law does not offer the protections that the public may incorrectly assume that it does. That is on us as international lawyers for not having the wherewithal to address the matter more robustly – something for which victims of torture-by-another-name may find unforgivable.