http://www.opendemocracy.net/article/email/legal-nihilism-in-russia

Just another two murders in Moscow?

Bill Bowring, Birkbeck, University of London

Prechistenka is one of the most picturesque streets of the old centre of Moscow, lined with historical buildings, mansions and churches. On the afternoon of Monday 19 January 2009, it was the setting for a double murder which has caused unprecedented shock even in Russia, where assassinations have become commonplace. The victims were 34-year-old Stanislav Markelov, a leading human rights lawyer and Director of the Institute of Supremacy of Law in Moscow; and his close comrade 25-year-old Anastasia Baburova, who had in October 2008 started work as a researcher at the independent weekly newspaper Novaya Gazeta (part-owned by Aleksandr Lebedev, who is now showing interest in the London Evening Standard). They were both shot in the head by an assassin who used a silenced “Makarov” revolver and wore a balaclava hat with slits for his eyes.

It will be recalled that Anna Politkovskaya, murdered in the lift of her apartment block on 7 October 2006, was the best-known journalist on Novaya Gazeta, exposing human rights violations in Chechnya. And her murder followed those of her colleagues on the paper, Igor Domnikov in 2000, and Yury Shchekochikhin in 2003.

Domnikov’s murderers were only convicted in 2007. Indeed, journalism is a high-risk profession in Russia. Between April 1993 and December 2008 up to 70 journalists were killed for their work or went missing; many more were the victims of work-related assaults. Many of the perpetrators have escaped justice, in a context of complete, or, increasingly, partial impunity.

The profession of lawyer has not been so dangerous, but Markelov had a very high profile. He worked closely with Anna Politkovskaya, for example on the “Cadet case” in which the Chechen Zelimkhan Murdalov was tortured to death by special forces police. There is speculation that Markelov knew the name of Politkovskaya’s murderer.

Most strikingly, Markelov represented the family of the Chechen girl Elza (Kheda) Kungaeva, who in 2000 at the age of 18 was raped and murdered by Colonel Yury Budanov. At his first trial Budanov was acquitted on the basis of psychiatric evidence that he was temporarily insane at the time. But Markelov secured a forensic review from the London clinical psychologist Stuart Turner, who in a report which Anna Politkovskaya published in Novaya Gazeta on 23 January 2003, advised that Budanov was “healthy, and dangerous”. This helped to secure Budanov’s conviction and sentence to 10 years prison at a re-trial. But on 14 January 2009 Budanov was released on parole. Shortly before his murder Markelov had conducted a news conference protesting at this decision, and demanding that the authorities resume the prosecution.

Despite taking cases for Chechens who suffered at the hands of the authorities, Markelov was a hero in Chechnya. On 20 January 2009 Chechen President Ramzan Kadyrov awarded Markelov a posthumous medal “for services to the Chechen Republic”, and tens of thousands demonstrated in the Chechen capital, Grozny.

Yet there have been a number of recent murders connected with Chechnya. On 15 January 2009 Umar Ismailov, a 27-year-old Chechen exile and fierce critic of Ramzan Kadyrov was shot dead in Vienna, using very similar methods.

Furthermore, Markelov and Baburova were both left-wing and anti-fascist activists. He had defended the anti-fascist group Anti-Fa, and she had been hired by the paper to write about neo-Nazis, and quoted Markelov in her articles. In April 2004 he was attacked in the Moscow Metro by five skinheads, who beat him up, shouting nationalist slogans, and denouncing his work against Budanov. Anti-fascist activity too has become very dangerous. In October 2008 neo-fascist skinheads kicked16-year-old Olga Rukosyla to death in Irkutsk; and stabbed 27-year-old Fyodor Filatov to death in Moscow. In January 2009 the young leftist Anton Stradimov was beaten to death in Moscow. Racist violence is monitored by the excellent Sova Centre, which publishes regular updates on its web-site in Russian and English.

Speculation as to the identity of the murderer is rife. Police have already described the murders as a “contract killing”. Yet, as several commentators insist, it seems highly unlikely that Budanov or those close to him are involved. Moreover, this was probably not a neo-fascist or skinhead killing, since their victims are usually beaten or stabbed to death.

The daily Izvestia for 21 January 2009 offers another possible explanation. The killer carried out his assassination on a busy street in broad daylight. He did not drop his gun, but calmly walked into a nearby Metro station. And the “Makarov” pistol is standard police issue. Was he a police officer? The police could have had a grudge against Markelov. In April 2008 there was a brawl in Sokolniki police station in Moscow. Five youths were beaten up, but were charged with assaulting police officers. One of the youths was represented by Markelov, who succeeded in having charges pressed against police. On the day of the murder, the case was at its peak.

The General Prosecutor of the Russian Federation, Yury Chaika, and the Head of the Investigative Committee, Aleksandr Bastrykin, have promised that the murder investigation will be lead by them personally.

While a final judgment would be premature, we are entitled to ask whether this will be yet another example of impunity for those responsible. In any event, ultimate responsibility for the state of affairs in which murder and intimidation are so horrifyingly commonplace must be laid on those in political power in Russia.

22 January 2009

From The Sunday Times
January 11, 2009
http://www.timesonline.co.uk/tol/comment/letters/article5488380.ece

Israel’s bombardment of Gaza is not self-defence – it’s a war crime

ISRAEL has sought to justify its military attacks on Gaza by stating that it amounts to an act of “self-defence” as recognised by Article 51, United Nations Charter. We categorically reject this contention.
The rocket attacks on Israel by Hamas deplorable as they are, do not, in terms of scale and effect amount to an armed attack entitling Israel to rely on self-defence. Under international law self-defence is an act of last resort and is subject to the customary rules of proportionality and necessity.
The killing of almost 800 Palestinians, mostly civilians, and more than 3,000 injuries, accompanied by the destruction of schools, mosques, houses, UN compounds and government buildings, which Israel has a responsibility to protect under the Fourth Geneva Convention, is not commensurate to the deaths caused by Hamas rocket fire.
For 18 months Israel had imposed an unlawful blockade on the coastal strip that brought Gazan society to the brink of collapse. In the three years after Israel’s redeployment from Gaza, 11 Israelis were killed by rocket fire. And yet in 2005-8, according to the UN, the Israeli army killed about 1,250 Palestinians in Gaza, including 222 children. Throughout this time the Gaza Strip remained occupied territory under international law because Israel maintained effective control over it.
Israel’s actions amount to aggression, not self-defence, not least because its assault on Gaza was unnecessary. Israel could have agreed to renew the truce with Hamas. Instead it killed 225 Palestinians on the first day of its attack. As things stand, its invasion and bombardment of Gaza amounts to collective punishment of Gaza’s 1.5m inhabitants contrary to international humanitarian and human rights law. In addition, the blockade of humanitarian relief, the destruction of civilian infrastructure, and preventing access to basic necessities such as food and fuel, are prima facie war crimes.
We condemn the firing of rockets by Hamas into Israel and suicide bombings which are also contrary to international humanitarian law and are war crimes. Israel has a right to take reasonable and proportionate means to protect its civilian population from such attacks. However, the manner and scale of its operations in Gaza amount to an act of aggression and is contrary to international law, notwithstanding the rocket attacks by Hamas.

Ian Brownlie QC, Blackstone Chambers; Mark Muller QC, Bar Human Rights Committee of England and Wales; Michael Mansfield QC and Joel Bennathan QC, Tooks Chambers; Sir Geoffrey Bindman, University College, London; Professor Richard Falk, Princeton University; Professor M Cherif Bassiouni, DePaul University, Chicago; Professor Christine Chinkin, LSE; Professor John B Quigley, Ohio State University; Professor Iain Scobbie and Victor Kattan, School of Oriental and African Studies; Professor Vera Gowlland-Debbas, Graduate Institute of International and Development Studies, Geneva; Professor Said Mahmoudi, Stockholm University; Professor Max du Plessis, University of KwaZulu-Natal, Durban; Professor Bill Bowring, Birkbeck College; Professor Joshua Castellino, Middlesex University; Professor Thomas Skouteris and Professor Michael Kagan, American University of Cairo; Professor Javaid Rehman, Brunel University; Daniel Machover, Chairman, Lawyers for Palestinian Human Rights; Dr Phoebe Okawa, Queen Mary University; John Strawson, University of East London; Dr Nisrine Abiad, British Institute of International and Comparative Law; Dr Michael Kearney, University of York; Dr Shane Darcy, National University of Ireland, Galway; Dr Michelle Burgis, University of St Andrews; Dr Niaz Shah, University of Hull; Liz Davies, Chair, Haldane Society of Socialist Lawyer; Prof Michael Lynk, The University of Western Ontario; Steve Kamlish QC and Michael Topolski QC, Tooks Chambers;

UK must act to stop violations in Gaza The UK has a duty to stop violations of international law in the conflict between Israel and Hamas The Guardian, Wednesday 14 January 2009 http://www.guardian.co.uk/world/2009/jan/14/gaza-israel-palestine-letters As international lawyers, we remind the UK government that it has a duty under international law to exert its influence to stop violations of international humanitarian law in the current conflict between Israel and Hamas. A fundamental principle of international humanitarian law is that the parties to a conflict must distinguish between civilians and those who participate directly in hostilities. Attacks deliberately aimed at the civilian population and civilian objects, by any means, are prohibited, as are attacks that do not discriminate between civilians and combatants, or which are likely to cause harm to civilians that is excessive when compared to the military advantage sought by the attack. Similarly, the use of civilians as "human shields" is also forbidden. Further, the parties to the conflict must take all feasible precautions to minimise harm to the civilian population, and to allow and facilitate the rapid and unimpeded passage of medical and humanitarian relief to civilians in need. Under international law, the UK government is obliged to use its best efforts within the law to stop the ongoing violations of these fundamental rules of international humanitarian law. In particular, we call upon it to condemn publicly attacks by the parties to the conflict that target civilians directly, or fail to discriminate between civilians and combatants, or which are expected to cause disproportionate injury to the civilian population. The UK government should also strongly encourage the parties to ensure that civilians in Gaza receive the essential medical and humanitarian relief to which they are entitled under international law. Dr Louise Arimatsu LSE, Dr Lorand Bartels University of Cambridge, Arnulf Becker Lorca KCL, Dr Jason Beckett University of Leicester, Prof Christine Bell University of Ulster, Dr Chaloka Beyani LSE, Dr Silvia Borelli UCL, Prof Bill Bowring Birkbeck, Iain Byrne human rights lawyer, Prof Matthew Craven Soas, Prof Robert Cryer University of Birmingham, Tim Daniel solicitor, Dr Catriona Drew Soas, Prof John Dugard Pretoria, Prof Max du Plessis University of KwaZulu-Natal, Carla Ferstman Redress Trust, Prof Malgosia Fitzmaurice Queen Mary, London, Guy Goodwin-Gill University of Oxford, Gina Heathcote Soas, Prof Susan Marks KCL, Stephanie Khoury international lawyer, Dr Nico Krisch LSE, Prof Robert McCorquodale University of Nottingham, Lorna McGregor Redress Trust, Sorcha MacLeod Sheffield University, Scott Newton Soas, Prof Mary Ellen O'Connell Notre Dame University, Dr Lutz Oette Soas, Dr Roger O'Keefe University of Cambridge, Simon Olleson 13 Old Square Chambers, Dr Federico Ortino KCL, Emma Playfair Human rights lawyer, Dr Marco Roscini University of Westminster, Prof Peter Rowe Lancaster University, Prof Malcolm Shaw QC University of Leicester, Prof Gerry Simpson LSE, Dr Guglielmo Verdirame University of Cambridge, Prof Nigel White University of Sheffield, Dr Ralph Wilde UCL, Elizabeth Wilmshurst Chatham House

What we can learn from the Greek riots
It's time to understand the insurrection as the response of those who feel invisible to the political system
Comments (29)
http://www.guardian.co.uk/commentisfree/2009/jan/09/greece-riots
* costas
*
o Costas Douzinas
o guardian.co.uk, Friday 9 January 2009 08.00 GMT
o Article history

A large demonstration in Athens planned for today and the re-occupation of universities and schools will mark the second phase of the recent Greek protests, which started on 6 December after the police killing of 15-year old Alexis Grigoropoulos. Occupations and demonstrations broke out all over the country. Daily marches to police stations, parliament and ministries were accompanied by sit-ins, theatre invasions, the raising of a banner on the Acropolis and the burning of the Christmas tree in Syntagma Square. In an unprecedented move, large numbers of secondary school pupils took to the streets to join a protest supported by half the population. Solidarity demonstrations throughout Europe raised fears of the movement spreading.

Few events in recent Greek history have created such a plethora of anxious but inadequate interpretations. Many, often contradictory, causes have been put forward: economic (unemployment and neo-liberal economic measures), political (persistent corruption and failure of education), cultural or ideological. But the most prominent reaction of commentators has been incomprehension mixed with incredulity.

No political organisation directed the insurrection, no single ideology motivated it, no overwhelming demand was put forward. The persistent question, "What do the kids want?" often led to the conclusion that the events were not political because they could not be integrated into existing analytical frameworks. What seemed to unite the protesters was a refusal: "No more, enough is enough." A stubborn negativity characterised the insurrection. Is this a new type of politics after the decay of democracy?

From the urban riots of early modernity to May 1968, the "street" has changed political systems, laws and institutions. In this sense, the December insurrection was a recognisable form of "street" resistance. But this was no ordinary protest. Imagine Westminster and Whitehall under siege every day for two weeks.

A condensation of causes, strategies, tactics and actions turned December into the Greek May. As events developed, the insurrection drew in ever larger numbers in a snowballing effect that kept unsettling every attempt at explanation or pacification. The listing of possible causes could not help understand the effects. In the same way that the coming of the insurrection could not have been predicted, its happening could not be controlled and its long-terms effects are unknown.

Contemporary politics aims at marginal (re)distributions of benefits, rewards and positions without challenging the established order. In this sense, politics resembles the marketplace or a town hall debate where rational consensus about public goods can be reached. Conflict has been pronounced finished, passé, impossible. The convergence of political parties in the centre ground exemplifies this "conflict-free" approach. But conflict does not disappear. Neo-liberal capitalism increases inequality and fuels conflict. When social conflict cannot be expressed politically, it becomes criminality and xenophobia, terrorism and intolerance. Or a reactive violence, the emotional response of those invisible to the political system.

In the Greek case, antagonism resulted from the tension between the structured social body with its political representatives and groups, causes and interests radically excluded from the political order. Huge numbers of people cannot formulate their demands in the language of politics. The protesters do not say, "I want this or that" but simply, "Here we are, we stand against". Not we claim this or that right, but we claim the "right to have rights". They seem to be saying that, "We, the nobodies, the schoolkids, the suffering students, the unemployed, the generation that must survive on a salary of 600 euros, are everything."

The insurrection can be recognised as an event of radical change only retrospectively, if the rules of political recognition and participation are re-arranged. This depends on those who, after the end of the insurrection, will uphold the possibility of changing the rules of what counts as political. This is the challenge the Athens rising poses to Europe.

The meaning of the struggle for rights 

Review by Paul Feldman

Academics are not particularly well known for nailing their political colours to the mast, preferring instead the relatively quiet (and often privileged) life of ivory towers, the occasional lecture and publication of learned but often obscure papers and books. Bill Bowring is, therefore, a rare breed.

He is at the same time a leading academic, a human rights lawyer and a political activist. Bowring has the honour, for example, of having once been thrown out of Putin’s Russia twice, undoubtedly because of his championing of the rights of the Chechen people in the courts. Bowring is also openly a Marxist who wages philosophical battle against postmodern relativism and subjectivism in the field of international law and human rights.

For example, he takes issue with Adam Gearey’s book, Globalization and Law. Bowring points out that this book does not mention the possible existence of a system in the chapter that deals with the International Monetary Fund and the World Trade Organisation. Gearey simply makes do with the concept of “power relationships”. The reluctance to use the term “capitalism” may have been determined by the apparent evolution of the system into a new “paradigm”, where the old rules no longer applied. Unfortunately for Geary and others, the financial crash has rather proved him wrong and even the bourgeois media openly talks of a capitalist system in crisis.

The Degradation of the International Legal Order? – the book’s title – doesn’t really need a question mark. Few can dispute the fact that norms in international law that prevailed for much of the post-1945 period have been shattered by the invasions of Iraq and Afghanistan and before that the bombing of Yugoslavia. To that you could add “extraordinary renditions”, that sinister euphemism for kidnapping and torture and the unlawful detention of abducted people at Guantanamo Bay’s Camp X-Ray. These principally US-UK actions bypassed the United Nations framework established at the end of the Second World War. As Bowring says: “The Security Council, and, in effect, the whole of [UN] Charter and customary law on the use of force and self-defence, have been jettisoned in the name of the war against terrorism.”

Bowring’s consistent materialist approach is that international law and human rights are rooted in and appear as a result of people taking part in social struggles and revolutions. In that sense, they are the results of class struggle through the centuries whereby the state at national and international level has been compelled to accept and adopt certain norms and rules. The fact that these same laws have been largely discarded in recent years only indicates that the struggles that produced them in the first place have to be renewed in a fresh setting.

The author, who is professor of law at Birkbeck College, University of London has developed his thinking around the concept of three generations of rights which he associates with distinct periods of social upheaval – the French Revolution of 1789, the Russian Revolution of 1917 and the national liberation, anti-colonial struggles that took place between 1945 and the 1960s. These events helped shape democratic rights, social and economic rights and the right to self-determination which eventually became embodied in international law and practice.

Bowring takes issue with academics like Martin Loughlin, the professor of public law at the London School of Economics, who contends that rights “are fundamental essentially because they command general support … the authority accorded basic rights rests on political consensus.” Bowring’s firm position is that human rights are not “simply empty rhetoric” and “equally not a set of ethically neutral procedures” but have an essential relationship to the substance of things. They are, says the author, “the subjects and objects of real struggles in the real world” and he says: “It is my case that the rights of each generation are re-invested with political – even revolutionary – content each time and only when they are re-appropriated in struggle. This is a philosophically realist perspective in which ideas and words … can acquire causal powers and effects.”

One of the most revolutionary products of the French Revolution, he explains, recognised with horror by people like Burke and Bentham in England, was the Declaration of Rights of Man and the Citizen. Bowring adds: “Lenin in 1917 not only proclaimed the ‘rights of nations to self-determination’ but also the rights of the working people which have since become enshrined as social and economic rights.” He cites Steven B. Smith approvingly, who says: “Rights, then are not simply given, but are part of a larger historical struggle of human beings to achieve, or to become worthy of respect or recognition. Without some account of the emergence of rights, the concept itself will remain insecure.”

Bowring’s book is an important addition to our knowledge about rights. It is unfortunate, however, that the author uses the term “communism” to refer to the former Soviet Union and also paints a fairly rosy picture of that country’s support for national liberation and self-determination struggles. Using the term “communism” lends credence to the capitalist ideologues who insist that the demise of the USSR was the “collapse of communism”, when it was something quite different. As the author knows because he participated in the perestroika and glasnost period when Mikhail Gorbachev tried to carry through a political revolution, the last Soviet leader was up against a Stalinist bureaucracy desperate to hold on to the privileges and power it had usurped from the people from the late 1920s.

Of course, the Stalinist bureaucracy defended the state property relations established by the 1917 October Revolution – but at a price that included the Nazi-Soviet pact (making World War II inevitable) and a duplicitous role in national liberation struggles in the post-war period, when movements often became pawns in a struggle between the USSR and the USA. While, for example, Moscow supported some self-determination struggles they also backed plots and intrigues against the Palestinian leadership of Yasser Arafat and suppressed self-determination in Eastern Europe. Eventually, the bureaucracy’s last act was to engineer a coup against Gorbachev that precipitated the fall of the Soviet Union itself.

This is an extremely important book in that it demonstrates clearly the relationship of human rights and international law to the struggles of real human beings. The sub-title of the book is The Rehabilitation of Law and the Possibility of Politics. Here the author insists that “international law contains within its principles and concepts the content of world-shaking movements, a content that is capable, sometimes, unpredictably, of reappearing with a terrible vengeance”.

This is, of course, true and without such spontaneous movements there would be no possibility of change. Of course, the epochal events that the book refers to were organised around leaders and parties which had strategic, revolutionary objectives. It became possible to achieve these objectives when the old order could no longer contain the contradictions that had built up within society and the existing state. The question that is posed today is how do we actually “rehabilitate law”? Can this be done within the context of the existing capitalist state framework, at national and international level? Can “we reclaim the UN”, as the author suggests we should, by piling on the pressure in London and Washington?

The answer, in my view, is no. As Unmasking the State recently published by A World to Win argues, the degeneration of the capitalist state has reached a point of no return and the essential end of bourgeois democracy. The lawlessness that Bowring brings out in some detail is, in fact, related to a profound crisis of the capitalist state. This crisis in turn has its source in the contradictions within capitalist globalisation which, as we know, is in a crash greater than that of the 1929 collapse. A movement of people for rights provoked by financial collapse has started, manifesting itself in the historic victory for Barack Obama in the United States, for example. The possibility of politics has to lead to a new epoch in human relations, beyond capitalism and the capitalist state in order to restore and extend the principles of international law and human rights.

http://www.aworldtowin.net/reviews/Degradation.html

Behatokia conference, Bilbao 24-25 October 2008

 

Exceptional measures in the international context: their impact on human rights and fundamental freedoms

 

Professor Bill Bowring, University of London, Barrister.

President, ELDH (European Lawyers for Democracy and World Human Rights); International Secretary, Haldane Society of Socialist Lawyers, England;

Chair, European Human Rights Advocacy Centre.

 

For this presentation I will pose and answer seven questions.

 

1) Where do human rights and fundamental freedoms come from?

 

These have not always been with us! Nor are they granted to us by the state.

 

They have all been won in struggle – revolutionary struggle, usually violent struggle.

 

The first generation – civil and political rights – freedom of expression, personal liberty and security, right to enjoy property without arbitrary expropriation – were key outcomes of the English, French and American revolutions

 

The second generation – social and economic rights – were a direct result of the Russian revolution, which was answered in the West by creation of the International Labour Organisation in 1919

 

Very important here in the Basque Country – the key right of the third generation – the right of peoples to self-determination – won in the de-colonisation struggles of the 20^th century

 

2) Has there ever been non-violent revolutionary struggle?

 

The first use of the word “terror” in the sense in which it was now used was the Reign of Terror of the French Revolution in 1793-4, although the English revolution culminated in the execution of the King in 1649.

 

The American Revolution was in fact waged by the Americans using guerrilla tactics and was not exactly peaceful.

 

The Russian revolution would not have survived without the Red Terror of 1918 to 1922 – see Trotsky’s “Their Morals and Ours”, now republished with an excellent introduction by Slavoj Žižek (who has done the same with Robespierre)

 

Ireland would not have won independence without Michael Collins’ extermination one by one of the entire British secret service in Dublin – see Neil Jordan’s film with Liam Neeson and Julia Roberts, an excellent film despite that.

 

3) What are exceptional measures?

 

Carl Schmitt – the fascist jurist – and Georgio Agamben, his close disciple, have written that “the sovereign is he who decides the state of exception” - Ausnahmezustand; that the meaning of the constitution is disclosed when it is cast aside; and that politics cannot exist without an enemy.

 

They theorise the crisis and state of emergency as not exceptional moments in political life opposed to some stable normality, but themselves the predominant form of the life of modern nations

 

Also, on their account the language of human rights and fundamental freedoms is used cynically to demonise the enemy, to make the enemy an outlaw to whom no rules apply. Of course, what they really mean is Nazi Germany and its allies – including Franco Spain.

 

4) Who or what is the enemy whose existence justifies the state of exception, exceptional measures?

 

For Mussolini’s Italy, Hitler’s Germany, Franco’s Slain, and Salazar’s Portugal, the main enemy was clearly identified – Communism, that is Soviet Bolshevism

 

This is the basis on which Hitler secured the support of industrial capital in Germany; and his first measures were to smash trade unions and civil society

 

In all cases too the project entailed the suppression of difference – the Jews, the Roma – and the Basques

 

Now the enemy is Al-Quaida, with Osama Bin Laden (dead and alive); and, despite the fact that there is no “Muslim community” except as constructed by national legislation, under which every Muslim is now a suspect, just as every Irish woman and man was in the UK in the 1970s and 1980s.

 

5) Do we have a qualitatively new world since World War II?

 

No – to the extent that defeat for Hitler did not lead to the end of Franco and Salazar, and capitalism demonstrated that it was stronger than ever, led by the USA

 

Yes, to the extent that the colonial empires were destroyed by a series of bloody wars of national liberation. The National Liberation Movements received international recognition as the “legitimate representatives” of oppressed peoples. Now every single one of them would qualify as “terrorist”.

 

The USSR played a thoroughly contradictory role, but

secured the legal right of peoples to self-determination, against determined opposition from the imperial powers

gave crucial material assistance in all continents  

encouraged limited national autonomy within the USSR

 

Nevertheless, the USSR despite winning against Germany was itself fatally flawed, not least in the suppression of its own nations – the Crimean Tatars, the Chechens, the Buryats…

 

6) What did 1968 mean?

 

There was a wave of revolt in 1968 – the Vietnam War, the Prague spring, May-June in France, the summer events (Chicago, Kent State) in the USA, the civil rights movement in Northern Ireland

 

Global capital was very scared

 

Defeat for the various movements (except in Vietnam) was followed by extraordinary repression, by retreat underground, and by armed struggle, especially in the USA, but in many countries.

 

The Weathermen, the Black Panthers, the Red Army Fraction, the IRA, ETA – their armed struggles all date from the immediate aftermath of 1968

 

And the assault on human rights and fundamental freedoms followed – for example the Prevention of Terrorism Acts from 1974 in the UK. The notorious Terrorism Act 2000 predated 9/11.

 

7) Did the world change on 11 September 2001?

 

No – except that there was a new pretext for suppression of human rights and fundamental freedoms.

 

In fact, global capitalism is now undergoing one of its periodic crises – each time it looks like the end of the world

 

In her “Shock Doctrine” Naomi Klein shows conclusively how the state uses crisis and catastrophe to introduce new repression. But she misses or ignores the working of capitalism as a system ruthlessly pursuing value, through destruction if necessary

 

This crisis is a necessary product of capitalism.

 

Furthermore, global warming, and environmental degradation, are also directly and necessarily caused by capitalism

 

And that is why the Basques are such a threat – they demand not only self-determination, but socialism. 

Socialist Lawyer No.50 September 2008-10-22 pages 38-39

Review by Richard Harvey

Shock and Awe Anti-Pessimism

 

The Degradation of The International Legal Order? The Rehabilitation of Law and the Possibility of Politics

by Professor Bill Bowring

Routledge-Cavendish.

 

Professor Bill Bowring’s new book highlights the revolutionary origins of international human rights, it dissects current threats to the international legal order, and from its dialectic a synthesis emerges pointing the way ahead to engage afresh with the politics of social and economic rights, environmental protection and sustainable development. His achievement is breathtaking in its scope and sometimes intimidating in its erudition.

The book’s cover shows Baghdad ablaze; a potent symbol of the apparent impotence of international law when blatantly violated by two permanent members of the Security Council. The war against Iraq sent Chicken Little academics scurrying down the path of post-modern pessimism, declaring the end of international law and the end of human rights. But, as the question mark in his title indicates, Bowring is having none of it. In a shock and awe engagement with the pessimists, he argues, from the first sentence of the first chapter, that: the most significant gain of post World War Two international law, the right of peoples to self-determination’. I knew immediately that we spoke the same language, even though I must sadly confess to not having read (or even heard of) three quarters of the sources with which his book is annotated.

Self-determination is the central pillar of international human rights. These rights are not abstractions and they are not ‘given’ in any sense of that word. They have been won with blood, humanity and intellect, from the French and American revolutions in the late 18th Century, through the 1917 to 1919 period – encompassing the Russian revolution and the foundation of the International Labour Organisation – on down to the great post World War Two revolution that liberated colonised peoples in their millions. The struggle continues to protect these basic freedoms. This is the struggle that Professor Bowring labels ‘revolutionary conservatism’.

He uses this, to my mind, risky term to include the black letter law of the UN Charter and the UN Security Council’s monopoly on the use of force in international relations. He also provides a much-needed corrective to revisionist historians who derive the principle of self-determination from Woodrow Wilson’s ‘14 Points’ at Versailles in 1919. He reminds us that Lenin, from 1915 onwards was arguing the cause of self-determination of ‘peoples’, not just ‘nations,’ and that, while Wilson’s agenda was limited to Europe, Lenin explicitly argued for ‘the immediate liberation of the colonies’. (We also learn that Lenin signed a decree recognising the independence of Estonia, Latvia and Lithuania as early as 1918.)

Prof. Bowring recalls the crucial role played by the Soviet Union in submitting the landmark Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the UN General Assembly in December 1960. Ensuing measures enhanced international recognition of the rights of liberation movements (ANC, PAC, SWAPO, PLO) to receive international support. These further UN resolutions culminated in the great International Covenants of 1966, common article one of which gave explicit primacy to the right to self-determination of peoples as the foundation for all other human rights.

Within a relatively short time, these rights have become customary international law, jus cogens. This is an outstanding achievement won by landless peasants, victims of forced removals, political prisoners and principled lawyers from Fidel Castro to Nelson Mandela.

A paradox lies at the heart of the US/UK position on Iraq: not the fact that they clearly violated international law, but their compulsive insistence that they were acting in compliance with the very law they were breaking. In other words, they were asserting the importance of international law. It is essential that we seize on this and continue to challenge all international lawlessness, including the demand to admit ‘evidence’ obtained by torture, whether directly or when outsourced to less squeamish client states.

If he had stopped at his analysis of the challenges to international human rights and international humanitarian law posed by recent conflicts, Bill Bowring would have already made an invaluable contribution to the part of his subtitle which refers to ‘the rehabilitation of law’. But it is by conjoining this rehabilitation with ‘the possibility of politics’ that he takes us to a whole new level in understanding the world of opportunities confronting the international human rights practitioner.

In what he calls ‘the extraordinary allergy’ of common law systems – notably the UK – to social and economic rights, he provides some vital challenges to practitioners; pointing out ways in which the so-called ‘second generation’ of rights can be strengthened at the same time as advancing ‘third generation’ rights such as sustainable development and a healthy environment.

In a chapter called ‘the scandal of social and economic rights’ he argues that ‘neither the concept of human rights nor that of social justice can have content, meaning and significance except through their constant reinvention and reintegration in the real activity of women and men in the always turbulent and dangerous world into which they are thrown’. In a laconic aside, referring to his analysis of the dynamism and turbulence associated with the concepts of human rights and social justice, he says: ‘the reader may note the Hegelian flavour’. The reader does, indeed, but it is a very accessible and compelling piece of Hegelianism.

To its credit, the Blair government did pass the Human Rights Act in 1998. Of course, by then Nelson Mandela’s government had already enacted the most progressive constitution the world has yet seen. In marked contrast to the rights guaranteed to South Africans, the UK’s Human Rights Act lacked any provision for economic and social rights. New Labour focused on private provision and labour deregulation, setting its face firmly against ever making justiciable the rights guaranteed by the EU’s Social Charter and in particular the labour solidarity rights in the EU’s Charter of Fundamental Rights. The Council of Europe’s Social Charter is intended to be the social and economic counterpart to its European Convention on Human Rights. Yet, although the UK signed the 1996 Revised Social Charter in 1997, over a decade later the UK Government has shamefully failed to ratify it. So we are still denied the Charter’s protections for housing, social security and employment rights and, notably, the right of collective complaint by trade unions and NGOs to the European Committee for Social Rights.

When Bill Bowring re-focuses our attention on ‘the possibility of politics’ his passion is born out of his rare hybrid status as both academician and practitioner in the field of international human rights. His field of specialisation is Russia and, in the past few years, he has successively (and successfully) taken Russia to Strasbourg over Article 2 violations in Chechnya; he has been expelled from Russia when trying to visit a client; and, most recently, he has now been invited by the Russian Government to consult with its agencies about implementing human rights! He is also, as most readers will know, the International Secretary and a former Chair, of the Haldane Society of Socialist Lawyers.

His own legal activism boldly demonstrates the possibility of politics and his new book points a well-researched path for legal activists in the UK and elsewhere. Our role is not just to criticise governments for their violations; it is also to fight for the implementation of the European Social Charter and for the collective rights of trade unions and NGOs to uphold the rights of the groups whose interests they exist to protect.

His conclusion gives us all a clarion challenge:

‘My account has sought not to be pessimistic, but instead to share in the “heaven-storming” commitment of Marx and Lenin to the grandeur of the human spirit in resisting and sometimes overcoming exploitation […] the principles of contemporary international law and human rights, emerging as they have from revolutionary struggles before and especially after the Second World War, are not simply rhetoric, nor utopian and impossible prophecies, but real, material weapons of offence and defence in the human fight for emancipation.’

Richard Harvey

Russia and International Law

 

Introduction

 

This article focuses on the present condition and likely future trajectory of the international legal relations between Russia and the European Union (EU), rather than those between Russia and the USA. This is not because the latter are less important, but because Russia’s complex inter-relationship with Europe will be a decisive factor in its desire to become an alternative pole of influence to the USA in world affairs. Thus, it is still unlikely that Russia will, despite continuing tensions and the recent conflict with Georgia, leave the Council of Europe (CoE), in which it is firmly embedded. The CoE, with 47 member states and a combined population of over 850 million has become a firm frame of reference for Russian policy.

 

Relations with the EU are perhaps of even greater importance. Although Russia will not in the foreseeable future become a member, the EU is its most significant trading partner and matched in importance for Russia only by China and India. A countervailing factor is the influence of the philosophy of “Eurasianism”, which can be seen as pulling away from Western Europe. But it is a truism that Russian politics have always emerged from the conflict between the “Westernisers” and the “Slavophiles”, between modernisation and messianism.

Less attention is paid in this article to NATO and to the OSCE, although both are important European institutions. Although the issue of Ukrainian or Georgian membership of NATO is a constant irritant and now and then seen as a serious provocation, Russia can for the most part safely ignore this largely anachronistic organisation. Russia’s participation in OSCE is undergoing redefinition; and this author is sympathetic to Russia’s insistence that the OSCE return to its original purpose of conflict reduction and prevention. The United Nations is perhaps beyond the scope of this article. But the present review would be incomplete without reference to Kosovo, with which it concludes.

At the time of writing, the first armed conflict between Council of Europe member states since the Council’s inception in 1949, between Russia and Georgia over the tiny break-away Georgian region of South Ossetia, has not been fully resolved. The Council has expressed the deepest concern; and President Sarkozy of France, as President of the EU, played the leading role in brokering a cease-fire. 

 

The autumn session of the Parliamentary Assembly (PACE) from 29 September to 3 October 2008 will hold an urgent debate on the consequences of the war between Georgia and Russia.  On 12 September 2008 a group of 24 members of PACE – none from France, Germany, Italy, Spain or UK, but rather from countries such as Estonia, Latvia and Poland - submitted a request for the reconsideration of the previously ratified credentials of the Russian delegation to PACE “on substantive grounds” - on the grounds of serious violations of the basic principles of the Council of Europe. The Russian delegation reacted sharply. Konstantin Kosachev, leader of the Russian delegation to PACE, declared that if PACE votes to withdraw the credentials of his delegation, he will recommend to the Russian government that Russia leaves the CoE. He added that he considered that such an eventuality is highly unlikely, and he is probably right. But a future article must attempt a full analysis of this crisis.

 

The Council of Europe

 

Russia continues to be the only CoE member out of 47 to have failed to ratify Protocol 14 to the ECHR thus preventing the Protocol, which reforms and streamlines the Court’s procedures, from coming into force. Despite a number of high level meetings in Strasbourg and Moscow, there is no sign yet of change, despite the election of President Medvedev. On 14 April 2008 a renewed Russian parliamentary delegation joined the opening of the latest session of the Parliamentary Assembly of the Council of Europe (PACE). But according to the daily Kommersant, there was practically no hope that Protocol 14 would be ratified because “In Russia the European Court is often treated an anti-Russian organization, whose verdicts are directed against the state.” Unlike Vladimir Putin, who decided to abstain from visiting Strasbourg in spring 2008, Germany’s Chancellor Angela Merkel and Ukraine’s Prime Minister Yuliya Timoshenko agreed to come to the April PACE session. The Ukrainian delegation intended to promote a special resolution characterising the Ukrainian famine (Holodomor) as an act of genocide against the Ukrainian people – by Russia. This was inevitably regarded as an unfriendly act by Moscow.

 

On 15 April 2008 PACE published an introductory memorandum by Dick Marty, its Rapporteur on the situation in the North Caucasus. He highlighted ongoing human rights violations by security forces, including enforced disappearances, torture, and extrajudicial executions, and noted impunity for these violations of international law. The memorandum, entitled “Legal remedies for human rights violations in the North Caucasus,” characterised the human rights situation in the region as “by far the most alarming” in all 47 Council of Europe member states. 

 

Furthermore, on 26 May 2008 PACE published the latest in a series of important reports by the Cypriot parliamentarian Mr Christos Pourgourides, a member of the European Peoples Party/Christian Democrat group. The Report, entitled “Implementation of judgments of the European Court of Human Rights”, was prepared for the Committee on Legal Affairs and Human Rights. Mr Pourgourides regretted that the non-execution of the Strasbourg Court’s case-law remains a (major) problem with respect to 11 States Parties to the ECHR.

 

The issues highlighted with respect to Russia were as follows. First, he raised deficient judicial review over pre-trial detention, resulting in its excessive length and overcrowding of detention facilities. Here, Russia was seen to be taking determined steps following the Kalashnikov judgment (15 July 2002). Second, Mr Pourgourides turned to the problem of chronic non-enforcement of domestic judicial decisions delivered against the state. Again, he was able to report a series of relevant measures, taken in close cooperation with the CoE. Third, violations of the ECHR in the Chechen Republic continue to cause concern, with the Russian authorities maintaining their refusal to allow access to investigation files. As Mr Pourgourides noted, questions on the functioning and interaction of compensation schemes remain open. New provisions appeared to totally exclude from compensation individuals taking part in a terrorist act, even where the harm or injury suffered has been unlawfully inflicted.

 

Finally, as to the Strasbourg Court’s judgment in Ilascu and others v. Moldova and the Russian Federation (judgment of 8 July 2004) - cited by then President Putin as a reason for refusal to ratify Protocol 14 - the CoE’s executive body, the Committee of Ministers, had adopted a fifth Interim Resolution on 12 July 2007, renewing its profound regret that despite the earlier interim resolutions and the support of the European Union and numerous states, the authorities of the Russian Federation had not actively pursued all effective avenues to comply with the Court’s judgment. A – highly unusual - further application against Moldova and Russia by the two original applicants who continue to be detained despite the 2004 judgment, is pending before the Court.

 

A number of the continuing contacts between the CoE and Russia are also worthy of note. In April 2008 two representatives of PACE, Luc Van den Brande and Teodoros Pangalos, carried out a two day fact-finding visit to Russia. Their visit included discussions with law enforcement officials and human rights activists to gauge whether Russia is meeting its obligations as a member of the CoE. They also met members of the Public Chamber, an official body created in 2005, whose core membership was hand-picked by then President Vladimir Putin. They questioned the Chamber's independence and its ability to tackle issues on their own merit. Mr Van den Brande said: “There is great concern in the NGO world about the credibility of the Public Chamber. We were very surprised to hear that the Chamber has not addressed the issue of abolishing the death penalty." In meetings with NGO representatives they heard about the NGOs’ struggles to re-register under legislative amendments of 2006, which required every NGO to provide detailed plans for its year ahead, and forced thousands to close because they could not cope with the paperwork or meet other requirements. The delegation said that Russia needs to adopt legislation to allow independent rights groups to work effectively. A draft report will be published in October 2008.

 

This visit and the above-mentioned reports are evidence both of continuing vexatious problems with Russia; but at the same time of serious Russian engagement in the CoE’s enforcement of the Court’s judgments.

 

The European Union

 

The Slovenian Presidency on behalf of the EU congratulated President Dmitrii Medvedev on his election on 2 March 2008. It took note of the fact that the elections took place in a generally calm and peaceful manner, but regretted that the OSCE/ODIHR had to conclude that a meaningful election observation mission was not feasible – see below. In an unusually strong statement it also regretted that the electoral process did not allow for truly competitive elections; the lack of equal media access for the opposition candidates was of particular concern.

 

Nevertheless, at the June 2008 summit in Khantii-Mansiisk the EU and Russia agreed to open negotiations for a new strategic agreement. In the run up to the summit some member states and human rights organisations including Human Rights Watch (HRW) urged that the EU should use the Summit to press Moscow to end impunity for abuses in Chechnya and cease harassment of civil society in Russia. According to HRW, Russian authorities issued warnings in the first four months of 2007 to 6,000 NGOs for various alleged violations of registration procedures, and more than 2,300 groups had been shut down by court orders since 2006.

 

The summit, the first attended by President Medvedev in his new function, was friendly although commentators noted that there was no change from Putin’s policy approach. Progress had been made on a number of issues, including approximation of the legal framework governing trade (the EU is Russia’s largest trading partner and investor); frontier control; visas; illegal immigration; organized crime; prevention of terrorism; human rights (including the rights of Russian citizens in EU member states, principally the Baltic States); international cooperation; non-proliferation; crisis management; civil protection; research and development; investigation; exchange of students; and equivalence of academic degrees. That is a lengthy list, again indicating serious engagement. It should be noted that for many items on this list the Council of Europe provides the legal instruments and mechanisms.

However, on the issue of Abkhazia, where Georgia accuses Russia of covert annexation, Medvedev said “Russia and the EU share a common approach in questions of security. We base our approach on respect for international law, the solution of conflicts by political means, without resorting to force.” On the “missile defence shield”, Medvedev said “The doorway to negotiations remains open”, while making it clear that Russia’s position on this issue and NATO enlargement is unchanged. Medvedev also noted “an alarming trend for the use of European solidarity to promote the individual interests of some (member) states” – he meant Poland and Lithuania in particular.

 

Peter Schrank, writing in The Economist before the summit, commented:

“In practice a new PCA is unlikely to make much difference. Despite the obsolescence of the old one, trade between Russia and the EU has more than tripled since 2000. In negotiating a new one, Russia would, on past form, use its bilateral ties with big countries to get its way in what ought to be multilateral negotiations. And it is not clear that any new agreement will stick. Russia has explicitly said that it will not ratify the energy charter it signed in 1994, which would have required it to give third parties access to its gas pipelines.”

 

In the view of the present author, this is an accurate analysis. It should be recalled that the PCA, which came into force in December 1997 for an initial period of ten years, “established the institutional framework for bilateral relations, set the principal common objectives, and called for activities and dialogue in a number of policy areas”. It provided the framework for the EU’s “technical assistance” programme, TACIS. Thus, by 2007 more than € 2.6 billion had been allocated to Russia under TACIS since its start in 1991, to promote the transition to a market economy and to reinforce democracy and the rule of law

However, the PCA contained no legally binding commitments on human rights and democracy. Title II simply expressed a wish for “political dialogue on international issues of mutual concern and on cooperation relating to observance of the principles of democracy and human rights.” The cynical view is that TACIS has provided significantly greater benefits for Western European consultants than for Russian partners. It will shortly come to an end.

 

Russian foreign policy has proved to be highly successful in ignoring the EU while engaging directly with its important trading partners in bilateral relations. The PCA as a framework has proved largely irrelevant,

 

The OSCE

 

Since as early as 2004 Russian Foreign Ministry officials have criticised the OSCE for paying too little attention to political, military, and economic issues – the original focus of the Helsinki Final Act of 1975, and of the CSCE conferences - and instead highlighting the much more sensitive issues of human rights and democratic elections, focusing almost exclusively on Former Soviet Union states. In late 2005 Russian Foreign Minister Sergei Lavrov complained that the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) had become too independent. He argued that it required more specific directions to guide its work; it had failed to apply “equal treatment” to its election monitoring activities. Russia has urged the OSCE to apply its “original comprehensive approach” to the “new” transnational security challenges of international terrorism and the illicit manufacture and trafficking of weapons, and has also sought the allocation of a greater share of resources to economic development programs in countries located “east of Vienna.”

 

On 26 December 2007, just days before the OSCE's annual change of chairmanship, now held by Finland, the Russian Deputy Foreign Minister Aleksandr Grushko announced Russia's intent to reduce payments – presently only 6% of the total. During 2007 Russia withdrew from the adapted Conventional Forces in Europe (CFE) Treaty, which limits the deployment of heavy weaponry between the Atlantic Ocean and the Ural Mountains. The OSCE's annual ministerial council in November, held in Madrid, also ended without a final declaration after Moscow blocked agreement on a number of issues. Russia was of course angry at the decision of ODIHR not to observe the parliamentary and presidential elections in Russia.

 

It is not, therefore, surprising that on 25 July 2008 the daily Kommersant published an article entitled “Russia to withdraw money from OSCE”. The previous day Igor Borisov of the Central Electoral Commission of the Russian Federation announced at a press conference that “if the OSCE will not take the further steps on the road to democracy” then Moscow may refuse to pay its annual subscription to ODIHR. The amount paid by Russia has fallen by half in the past five years, and is now $6 million a year. At the same time Mr Borisov declared that the CEC had in its possession facts according to which the members of OSCE’s monitoring missions included officers of Western intelligence services. “We had thought that OSCE would be the central pillar of European security, but it has fallen into the hands of countries which use it in their own interests”, a senior Russian diplomat told Kommersant.

 

At the time of writing, Russia has refused to allow OSCE monitors into South Ossetia – there are presently 28 observers in Georgia.  On 18 September 2008 Antti Turunen of Finland, which holds the Chairmanship of OSCE said "We don't see the point of continuing negotiations in Vienna at this stage. They have been put on hold. The area of responsibility for monitors is the main sticking point." Anvar Azimov, Russia's representative in the OSCE, said Moscow was "ready to continue the dialogue", but added that additional monitors should be deployed in territory "from which the aggression came", in a reference to Georgia.

 

Russia and Kosovo

 

The issue of Kosovan independence is perhaps the most visible source of conflict between Russia and the EU (and NATO) – at least, up to the present armed conflict with Georgia over South Ossetia.  On 17 February 2008, Kosovo’s parliament declared Kosovo’s independence from Serbia. Following that declaration, the U.S. and several European states officially recognized Kosovan independence. An examination of Security Council Resolution 1244, which set forth the international oversight of Kosovo following the 1999 NATO intervention, and the international law of self-determination, secession, and recognition demonstrates that while Kosovo’s declaration of independence and its recognition by various states can be justified under existing international law, it is not a clear case.25 Russia has constantly insisted that it is the UN Security Council and the Security Council alone which should determine the future of Kosovo. Indeed, Russia stated on 20 February 2008, that sending an EU mission to Kovoso would be a breach of international law, and called the plan symbolic of the West's double standard in recognizing Kosovo's independence from Serbia.26 On 16 April 2008 the Russian Ambassador to the EU, Vladimir Chizhov said that Russia sees as unacceptable any involvement in the EU efforts in Kosovo, since the mission per se is illegitimate, while the objectives it pursues run counter to international legal standards.

 

By 13 June 2008, 42 states had recognised independent Kosovo, among them eight members (of 15) of the UN Security Council and twenty of the EU’s 27 members. However, legal and technical issues had delayed the setting up of the EU’s Rule of Law (EULEX) mission28. By that date, only 300 members of an anticipated 2000 strong EU justice and police mission were in place. The US announced that it plans to be a part of EULEX.

 

On 17 June 2008 Mr Lavrov announced that Russia would support Serbia's application to the International Court of Justice, complaining of the illegality of recognition of independent Kosovo. He reiterated the Russian position that a future compromise for Kosovo could be reached only following an agreement acceptable to both sides, warning that unilateral moves could cause additional problems. Lavrov and his Serbian counterpart, Mr Jeremic, backed the idea that the solution for the status of Kosovo should be reached within the frameworks of the UN Security Council and in accordance with international law, especially UNSC Resolution 1244 of June 1999, as the only legally valid document which determines the status of Kosovo. Jeremic declared that "Serbia finds unacceptable any solution which is not in accordance with Resolution 1244," and added that Moscow and Belgrade stand united behind the stance that the international presence in Kosovo cannot be changed without the consent of the Security Council.

 

Conclusion

 

The events of the first half of 2008 indicate continuing tension and on occasion conflict between Russia and its European neighbours; and of course the August war between Russia and Georgia. It is the preliminary view of this author that both sides have behaved illegally and stupidly, and that both sides committed war crimes during the conflict. Russia’s precipitate recognition of Abkhazia and South Ossetia may have unpredictable consequences within the Russian Federation itself, and has already given ammunition to Tatar and Bashkir separatists.31

The election of President Medvedev does not so far presage any significant change in the policy carved out by Putin. It is of course encouraging that disagreements are openly debated within the two European organisations, the CoE and OSCE, in which Russia is engaged as a fully participating member. Furthermore, Russia is bound to continue close dialogue with the EU simply by virtue of the ties of trade, which grow stronger each day. Nonetheless, the issues identified here arouse strong emotions in Russia, and are not easily resolved.

 

Russia, like its legal predecessor the USSR, takes international law very seriously indeed. Its commitment in terms of diplomatic and financial resources to the United Nations and the European regional organisations is substantial. Russia always wishes to demonstrate that it complies meticulously with its obligations. Indeed, in 2007 the European Court of Human Rights heard 192 complaints against Russia. Russia won just 6, and in 11 there was a friendly settlement. Russia paid in full the orders for compensation in every case it lost, millions of Euros.32  It should be recalled that the EU, despite considerable pressure from Strasbourg, and despite its prominent commitment to human rights, has not yet ratified the European Convention on Human Rights.

 

The idea of universal jurisdiction arose after World War Two and was embodied in the Geneva Conventions of 1949. Those guilty of war crimes could be prosecuted where they were or they could be extradited to where they could be prosecuted. The focus was only on very grave crimes and very few people have ever been prosecuted under them. However there have been examples of bottom-up approaches to enforcing international law.

 

In September 2005 the former head of Israeli forces in the Gaza Strip Major General Doron Almog travelled to Britain.  When Major General Almog was head of Israel's Southern Command he is accused of bulldozing more than 50 houses in the Rafah refugee camp in the Gaza Strip. Word of his visit had reached the Palestinian Centre for Human Rights who working with solicitors Hickman and Rose in London, applied to the Bow Street Magistrates Court for an arrest warrant. One was granted on suspicion of committing a breach of the Fourth Geneva Convention 1949, which is a criminal offence in the UK under the Geneva Conventions Act 1957.

 

The arrest never happened as before Major General Almog left his plane at Heathrow airport he was tipped off that he would be detained and stayed on board the jet until it returned to Israel some two hours later. The police- who denied being the ones to tip off the Israeli military attaché- refused to board the plane, stating a fear of a shoot out with armed EL-AL air marshals, despite being in an aircraft offering no immunity from arrest when on British soil. Subsequently Israeli foreign minister Silvan Shalom described the incident as an "outrage" and the then UK Foreign Secretary Jack Straw apologised for any embarrassment caused.

 

Both the United States and Britain have strongly resisted the idea that their troops could be prosecuted for war crimes with Lord Goldsmith saying to army officers “"We strongly take the view that no British service personnel will appear before the International Criminal Court (ICC) as its jurisdiction only applies if a nation is unwilling or unable to investigate [allegations of war crimes]," However in 2004 Bill formed part of a panel of international lawyers and academics who investigated the question "Is there sufficient cause and evidence for the International Criminal Court prosecutor to investigate members of the UK government for breaches of the ICC statute in relation to crimes against humanity and/or war crimes committed during the Iraq conflict and occupation 2003?"

 

Their conclusion was yes, that in relation to the use of cluster bombs around urban areas there was cause for the ICC to investigate, as the bombs are indiscriminate and can kill civilians long after conflict ceases. The evidence from the panel was sent to Luis Moreno-Ocampo, the ICC's chief prosecutor but only a perfunctory reply was ever received. Mr Moreno-Ocampo has only investigated war crimes in Africa at the ICC, a situation that is shocking given the many war crimes committed around the world. In accountability for war crimes there should be no place for political might to determine justice.

 

There have been two serious attempts to prosecute Donald Rumsfeld, one in London and one in Germany. The European Centre for Constitutional and Human Rights, with the New York Centre for Constitutional Rights asked German Prosecutors to investigate allegations of torture against Mr Rumsfeld on behalf of Iraqi citizens who were tortured while detained at Abu Ghraib and other US detention centres. The German authorities declined to investigate on the basis that the US would carry out its own full investigation.

 

Then in October 2007 the French League for Human Rights heard that Rumsfeld would be in Paris and quickly got the papers from the German attempt to prosecute. Under French law the authorities have to investigate when a torturer is on French soil. However the French prosecutor said they had advice that heads of state and ministers had immunity even when they were out of office. This advice has no legal basis and an appeal against the decision not to investigate was lodged in February 2008.

 

Another group Bill has been involved with, is the the European Human Rights Advocacy Centre (EHRAC), whose primary aim is to assist individuals, lawyers and non-governmental organisations (NGOs) within the Russian Federation and Georgia to take cases to the European Court of Human Rights. In one recent case a refugee coumum was bombed after Russian forces had authorised its movement from Grozny, with extensive use of heavy weapons in areas where they knew civilians were.  In such a case an important question is do we argue international humanitarian law or human rights law? The answer should always be human rights law. In that case it was held that the Russians had attacked indiscriminately and two Generals were named as having committed war crimes. The Council of Europe emphasised to Russia that under interntional law the Generals must be investigated but instead one of them has since been promoted.

 

So although these various attempts at enforcing international law against war crimes have not achieved prosecution they have had the effect that certain people are being advised that it is not wise to travel and some material support has been given to survivors. Of course this is not enough but when it is states who must prosecute and states who commit these crimes it is so difficult to have these atrocities brought to justice. It does show however what committed lawyers can achieve when they try.