A Sad Day for Democracy

4 March, 2012 Leave a Comment

Prime Minister Putin of Russia has been elected for a third term as President of the Russian Federation admits reports of widespread accusations of violations of election law according to the Associated Press. The Russian Government had been preparing victory celebrations at the Kremlin 8 hours before the first vote was cast.

It is a sad day for democracy – Vladimir Putin won around 60% of the vote, some 40% ahead of his nearest rival. Web cams were installed in polling stations to ensure that there were no irregularities, but there has been made no effort to ensure that each ballot has been counted. There are widespread reports of “carousel” voting taking place – where Party activists and loyal voters are bussed to different polling stations to repeatedly cast their votes.

That is despite recent protests in Russia which have seen hundreds of thousands of people protest on the streets of Russia’s streets to protest at the victory of United Russian in the December 2011 Duma elections. Putin was expected to win by over 50% to ensure that there was no embarrassing run off against the second place candidate Gennady Zyuganov of the Communist Party of Russia.

Vladimir Putin could remain as Russian President until 2024 after the Russian Constitution was amended in 2008 to extend term limits to two consecutive 6 year terms.

President Dmitry Medvedev will become Prime Minister under Vladimir Putin. There was no expectation that Prime Minister Putin would be defeated as no serious opposition candidate was fielded. United Russia maintains a strong grip on the machinery of the Russian State to ensure that dissident politicians could not organise a successful election campaign. In 2004 elections for regional governors were abolished and replaced with a system of appointments by the Russian Government.

Mikhail Khodorkovsky, formerly the richest man in Russia and 16th richest man in the World was sentenced late last year to a further 13 and a half years (reduced on appeal to 12 years) said this upon his condition as his second trial:

I am ashamed for my country.
Your honour, I think we all perfectly understand the significance of our trial extends far beyond the fates of Platon [Lebedev] and myself. And even beyond the fates of all those who have innocently suffered in the course of the reprisals against YUKOS that have taken place on such a huge scale, those I found myself unable to protect, but about whom I have not forgotten. I remember every day.
Let’s ask ourselves, what does the entrepreneur, the top class organizer of production, or simply an educated, creative individual, think today looking at our trial and knowing that the result is absolutely predictable?
The obvious conclusion a thinking person would come to is chilling in its simplicity: the bureaucratic and law enforcement machine can do whatever it wants. There is no right of private property. No person who conflicts with the “system” has any rights whatsoever.
Even when enshrined in law, rights are not protected by the courts. Because the courts are either also afraid, or are part of the “system”. Does it come as a surprise that thinking people do not strive to realize themselves here in Russia?
I am far from being an ideal person, but I am a person with an idea. For me, as for anybody, it is hard to live in prison, and I do not want to die here.
But if I have to, I will have no hesitation. What I believe in is worth dying for. I think I have shown this.
Share on TumblrSubmit to StumbleUponSave on DeliciousDigg ThisShare via email

Filed under Constitutional Law, Criminal Law, European Politics, Foreign Affairs, Global politics, Human Rights, Law, Politics Tagged with , , , , , , ,

The Legal Basis for Intervention in Syria.

6 February, 2012 Leave a Comment

The ‘traditional’ method of international authorisation of military actions is through a UN Security Council Resolution. Russia and China last week vetoed a draft resolution that called for an end to the violence, let alone intervention. It is almost certain that Russia and China would again exercise the veto in fear of a precedent being set in favour of intervention in states with internal dissent; Russia at the moment is experiencing a period of pro-democracy protest, and China is ever mindful of the international community’s condemnation of its internal repression and policies towards Tibet.

Article 7 of the Rome Statute of the International Criminal Court outlines the legal definition of “crimes against humanity”. Syria is a signatory to the Rome Statute. The definition includes:

(a)     Murder;

(b)     Extermination;

(c)     Enslavement;

(d)     Deportation or forcible transfer of population;

(e)     Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f)     Torture;

(g)     Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h)     Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i)     Enforced disappearance of persons;

(j)     The crime of apartheid;

(k)     Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The ICC is permitted to investigate matters of crimes such as these where states themselves are unwilling to do so. The Assad Regime is clearly not going to carry out that action. There is widespread documentation that these activities are being carried out, particularly evidence of activities prohibited under paragraphs (a), (b), (e), and (g).

The International Criminal Court would therefore have a prima facie case in issuing arrest warrants for the arrest of Bashar al-Assad and other members of the Syrian Regime.

The Legal Basis for intervention in Syria can be summarised:

(Source: The Henry Jackson Society - Intervention in Syria? An assessment of legality, logistics and hazards, by Michael Weiss)

Article 2(4) of the Charter of the U.N. prohibits the “threat or use of force against the territorial integrity or political independence” of a member state. The first exception to this prohibition is the authorization of force by a U.N. Security Council (UNSC) resolution.

The clearest path toward intervention, a UNSC resolution would condemn the Assad regime for its 10-month- long violent suppression of civil protests, impose punishing sanctions upon Syria, refer key members of the regime to the International Criminal Court (ICC) for investigations into war crimes and crimes against humanity and seek international military assistance in protecting the people of Syria.

 A resolution simply criticizing the Assad regime could still be used a pretext for intervention. This was the justification for Operation Provide Comfort, the campaign begun in April 1991 which offered humanitarian aid and military protection to the embattled Kurds of Iraq. This was undertaken despite the fact that UNSC 688 did not authorize intervention per se, but called upon Member States to “contribute to…humanitarian relief efforts.”
The American, British, French and Turkish governments interpreted this text to license the deployment of both ground forces and aircraft to jointly defend Kurds fleeing Iraq for the Turkish border. The operation was coordinated atthe NATO-leased Incirlik Air Base near Adana, Turkey. Operation Provide Comfort was followed by Operation Northern Watch and Operation Southern Watch, the 1991 no-fly zones imposed on the Kurdish north and Shi’ite south of Iraq.

A Security Council Resolution:

Because of the purported fear of “mission creep,” the UNSC route has failed in Syria’s case, most recently in October 2011 when a much-diluted resolution threatening only sanctions was vetoed by permanent UNSC members Russia and China. The Kremlin has been far more vocal in opposing international sanctions against Syria, and even more vocal in opposing military intervention. “It is not in the interests of anyone to send messages to the opposition in Syria or elsewhere that if you reject all reasonable offers we will come and help you as we did in Libya,” Russian Foreign Minister Sergei Lavrov said recently. Although there was previously some suggestion that if the Arab League renounced Assad, Russia and China would be persuaded to support some form of censure and penalty, neither Eastern powers have shown any willingness to accede to a UNSC resolution (in fact, Russia in particular has only increased its hostility to one since the League suspended Syria’s membership and passed sanctons against the regime). Having abstained from UNSC 1973, which authorized a no-fly zone in Libya, Russia claims that NATO overextended its remit in that conflict by continuing operations unto the fall of Gaddafi regime. To safeguard against another Western intervention in the Middle East, and to certify its $4 billion arms contract with the Assad regime, Russia’s last aircraft carrier, the Admiral Kuznetsov, the Admiral Chabanenko destroyer and two submarines, are all reportedly en route to the Russian-controlled naval base in Tartus. The Russian Federation continues to supply the Assad regime with weaponry.

Via the UN General Assembly

One theoretical way to spearhead a legitimate intervention without a UNSC resolution is for the UN General Assembly to invoke the “Uniting for Peace” resolution (377 A), a measure established to circumvent continued deadlock at the Security Council. Very rarely invoked, and with no guarantee of success, “Uniting for Peace” famously did succeed in 1950 under the so-called “Acheson Plan” (named for U.S. Secretary of State Dean Acheson). In this case, it served as a way of authorizing “collective measures” including the “use of armed force” during the Korean War, despite consistent Soviet vetoes in the UNSC. An Emergency Special Session (ESS) of the General Assembly can be called either by a procedural vote in the UNSC or within 24 hours of a majority of General Assembly members requesting one of the UN Secretary-General.

If a resolution were passed for Syria similarly authorizing the use of force, this would provide a legal justification for intervention. The main difficulty, of course, would be convincing the majority of
the General Assembly members to support it, a contingency that seems remote without strenuous lobbying from the Arab League and the Organization of the Islamic Cooperation (OIC), which has 57 member states drawn from the Muslim-majority and Arab countries.

Another basis for an exception to Article 2(4) in the Charter of the United Nations is a reasonable invocation of self-defense, which is stipulated in Article 51: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” There are two ways in which Article 51 may be invoked vis-à-vis Syria.

The first is to have foreign powers petition that the Syrian crackdown and gross human rights violations perpetrated by the regime represent a grave risk to regional peace and stability (the escalating Syrian refugee crisis, the descent of the country into a de facto state of civil war, etc.). Accepting that any intervening power has neither the annexation of Syrian territory nor the political control of the Syrian people in mind, that power could then undertake a humanitarian mission to preserve such peace and stability.

Turkey clearly has the strongest case to make in this regard, as it is currently hosting more than 10,000 Syrian refugees on its border as well as the senior command corps of the FSA, which is in a de facto
state of war with the Assad regime. Additionally, the recent assault on the Turkish embassy in Damascus and its consulates in Aleppo and Lattakia, or the attack on the Turkish bus convoy of pilgrims en route from Mecca, can be read as Assad-underwritten hostile acts against a neighboring state. The risk of Turkey being drawn into a regional conflict is high, although the Turkish government will likely require Western and Arab League consensus and matching political or material commitment prior to pursuing a course of intervention. Ankara has not yet engaged in direct acts of “active opposition” that would seriously threaten the survival of the regime in the near term.

Another strategy for invoking Article 51 could be for Western powers to recognize the SNC as the sole legitimate representative of the Syrian people, and for the SNC to then request international military assistance in self-defense of Syria, arguing that the Assad regime constituted an illegitimate “invading” power. International human rights law solidly backs this option; the Assad regime’s claim of sovereignty cannot provide a pretext for perpetrating mass atrocities against the civilian population nor depriving citizens of their fundamental human rights, as enshrined in the Universal Declaration of Human Rights.

The Responsibility to Protect (R2P) doctrine clearly applies in this case, and could be invoked as grounds for international intervention as was the case in the 2011 Libyan intervention. The actions by the U.N Human Rights committee to bring forth a resolution denouncing the Assad regime for its “terrible atrocities” further lend credibility to this track.

You can sign a letter calling for intervention in Syria here.

Share on TumblrSubmit to StumbleUponSave on DeliciousDigg ThisShare via email

Filed under Defence, Global politics, Human Rights, Law, Military Intervention, Politics Tagged with , , , , , ,

The Fixed Term Parliaments Act: What does it mean for the Coalition?

25 January, 2012 Leave a Comment

With the Conservatives well ahead of Labour in the latest opinion polling (Con 40 (+3) Lab 35 (-1) LD 16 (+1)), some in the Conservative Party would like to see a General Election to be called so that they can govern alone. An election based on that result would give the Tories 313 seats, Labour 286 and leave the Lib Dems on with just 24 MPs. That would leave the Tories just short of an overall majority, but with support from the 8 DUP MPs they could form a workable majority in the Commons.

Would it be possible for the Tories to dissolve Parliament? Short answer – Yes, possibly.

Under Nick Clegg’s own Fixed Term Parliaments Act 2011 the threshold required for an immediate General Election is 66% of all MPs. The Deputy Prime Minister said this in the House of Commons*:

First, traditional powers of no confidence will be put into law, and a vote of no confidence will still require only a simple majority. Secondly, if after a vote of no confidence a government cannot be formed within 14 days, Parliament will be dissolved and a general election will be held. Let me be clear: these steps will strengthen Parliament’s power over the executive. Thirdly, there will be an additional power for Parliament to vote for an early and immediate dissolution. We have decided that a majority of two thirds will be needed to carry the vote, as opposed to the 55% first suggested, as is the case in the Scottish Parliament.

These changes will make it impossible for any government to force a dissolution for their own purposes.

Could the Conservatives cobble together 66% of all MPs to vote in favor of an immediate dissolution for, as Nick Clegg put it “their own purposes”?

There are 650 MPs – with 5 Sinn Fein MPs who have not taken their seats. 430 MPs would therefore be required for an immediate dissolution. Subtract the Speaker, who by convention votes against a motion in the event of a tie, and you would require 429 MPs.

If we take the Lib Dems voting against any dissolution for granted (They could lose up to 4/5 of their MPs), then it would take all Conservative and Labour MPs to vote to dissolve Parliament –567 of them. That could only happen if both Parties were on a three line whip to support the motion.

With David Cameron seemingly content to keep the Lib Dems in Government to provide a moderating force to the Tory Right, it would be unlikely that the Tories would be whipped in favour of such a motion. It is also worth noting that Labour would be unlikely to support an immediate dissolution if the Tories were likely to win a majority. Labour’s polling numbers at the moment are soft and the Tories would be likely to pull further ahead in the polls. The Lib Dems could be dumped by the Tories in favour of a majority, but it is unlikely to happen.

The potential for a legal challenge to an early election was summarized by the UCL Constitution Unit:

A related question is whether there could be recourse to the courts to enforce the requirements of a fixed term law. The probability is that they would consider the issue to be non-justiciable; an obligation to be enforced in the political but not the legal sphere.

The most likely context for a legal challenge would be an attempt by a government to seek an early dissolution, as happened in Canada in 2008, and in Germany in 1982 and 2005. In the former instance, the Canadian Federal Court of Appeal dismissed the challenge on the basis that section 56.1(1) of the Canada Elections Act 2000 specifically preserved the powers of the Governor General.81 By convention, this extended to the power of the Prime Minister to advise the Governor General about the dissolution of parliament.

With regards to the 1982 early dissolution in Germany, the German Constitutional Court held that in the absence of unconstitutional actions, it would be politically inexpedient to go against the judgments of the President, Chancellor and leaders of the political parties. The Court accepted that Kohl faced general difficulties due to which he could not rely on a consistent majority in parliament. The Court responded similarly to the 2005 episode; the Chancellor’s assessment as to whether continuous governance could be assured was accepted.83

The international experience demonstrates that courts are unwilling to engage with such politically sensitive decisions, and a similar response is to be expected from the British courts.

Unless it was politically expedient for both the Tories and Labour to force a new General Election then an election before 2015 would be unlikely. 81 Tory MPs have shown themselves in the European Union Referendum debate it the Commons to be willing to rebel against their Whips. The Tories would be able to pass their NHS and Welfare Reform Bills, and their Budgets without having the Lib Dems interfering.

That must be tempting for the Tories……

 

* HC Deb 5 Jul 2010 col. 23

 

 

 

 

Related Posts Plugin for WordPress, Blogger...
Share on TumblrSubmit to StumbleUponSave on DeliciousDigg ThisShare via email

Filed under Constitutional Law, European Politics, Labour, Law, Lib Dem, Politics, Tory, UK Politics Tagged with , , , , , ,

← Older posts