Sunday, December 20, 2015

The Decision to Bomb Syria is Criminal

In the United Nations charter article 2(4) the members of United Nations have agreed on a prohibition towards violence between states. More specifically it is stated that all members shall refrain in their international relations from threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. From the wording of this paragraph it is clear that violence cannot be accepted in the international relationships between states. Considering the history of the United Nations, and why it was created, it is not strange that such a provision was included in the charter. The charter was agreed upon immediately after the Second World War, a war that claimed more than 60 million people. For the people back than, that first hand had experienced the horrors of war, it was common sense to make sure that states would not anymore be allowed to engage in violent conflict.

Sadly, this provision have many times been abused, misinterpreted, and misused. The charter allows for armed conflict in some instances, and that is as a measure of self-defense, when the Security Counsel approves it, which is when there is a threat to international peace and security, and when the armed forces of another nation are invited. There are no other exceptions but these to the prohibition of the use of force. However, it is obvious that charter has not been respected throughout the years. United States is one of those countries that several times have moved against the prohibition on violence. The invasion of Afghanistan and Iraq, and now, the bombings in Syria, these are not in alignment with the charter, the Security Counsel has not approved them, and hence, according to international law, they are illegal.

Unfortunately the legality of these actions is debated. Both Britain and the US have claimed that their ‘interventions’ in Syria are legally sound in that the cause of action is self-defense, and that they have an invitation from Iraq to help protect their country from the Islamic State. In terms of self-defense, the argument used is that ISIL represents a threat to both the US and Britain.

The problem with this type of reasoning, this constant nitpicking and interpretation of the UN-charter is that the prohibition on use of force is slowly being drained of all substance and meaning. And what is missed in the judicial debate is the true intention behind the UN-charter. In the preamble of the charter, the very first words written down are the following:

“We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow”

The Vienna Convention on the Laws of Treaties is the legal instrument that governs how conventions are to be applied and interpreted. How treaties are to be interpreted is laid down in article 31, where is stated that:

‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose’

It cannot be made clearer that the purpose of the charter is to abolish bloodshed. War is not an acceptable condition – and that must be the starting point from which the charter is interpreted and applied. It is obvious that if you start nitpicking, and deliberately look for loopholes and ways to legitimize war, you will be able to do that. Though that is not how the charter is supposed to be read and applied. That is not an honest and respectful way of reading and applying the charter, but rather a devious and deceptive way of circumventing principles, and rules placed by previous generations that first hand experienced the horrors of war.

The use of force can never be humanitarian. The use of force can never be justified on the grounds that it furthers democracy and human rights. AND – more importantly – the Use of Force cannot be justified within the bounds of the UN-charter through shaky legal arguments based on nitpicking and deviously interpreting words with a clear meaning, a clear purpose, and a clear context. The UN-charter is and will always stand as an instrument of peace, and by implication does not allow use of force, and any form of leeway from that main rule must be interpreted restrictively.

A problem with the charter is that, even though a country might be found guilty of breaching international law, it does not make state leaders personally liable for their decisions. Hence, in our current system, it is possible for state leaders to make unlawful decisions, causing massive suffering, without consequence. This does not make sense, just as civilians are able to face consequences when they commit murder, so should leaders and decision makers face consequences when they make decisions that, in breach of international and humanitarian laws, cause thousands upon thousands to die.

At the moment, the United Nations is more of a farce than an empowered institution capable of having real impact, and the charter, more of a document with words that sounds nice, rather than a document of principles that are lived for real. This can all be changed. The United Nations does have the potential of becoming a World Organ that can stand as a pillar of stability in difficult and tough times. For that to happen, changes must be made, and those changes must come from within the individual nations themselves. Because the United Nations, is an organization of countries that has united, and will as such only be as impactful as the involved countries allow it to be.

And here, we, the countries located in the western hemisphere have a great responsibility. Because at the moment, we have the means, we have the military strength, we have the influence, and in that, we have the opportunity to change the direction in which our world is currently moving. Even as individuals, we have the opportunity to make a difference. Because it us that elect our leaders, it us that inhabit and make up the constituency of our countries – and thus we are responsible for the actions of our leaders even though we admit that or not.

Peace is a Human Right, and the Use of Force is a Crime against Human Rights as well as International Law, and we all, regardless of where we are born, deserve a life in which our Human Rights are honored.

Sunday, December 6, 2015

Day 19 - The Real Meaning of Referendums

When talking about a referendum it is important to differentiate between a consultative referendum and a decisive referendum. As the word indicates consultative means that the population is merely consulted, and their opinion will have no binding force over the actual decision making process. Within a decisive referendum on the other hand, the word of the population is binding:  it dictates the outcome of a legislative process.

Most if not all of the referendums you hear about in the news are in fact consultative referendums. From a standpoint of democratic participation, they don’t mean much – as the government can do the exact opposite of what the majority expresses through the referendum. This happened very clearly in Greece, where the referendum of 2015 was praised as an astonishing democratic move by the Greek Prime Minister, Alexis Tsipras, who then on the next day went ahead and pushed a deal through parliament which was 10 times worse than the proposal to which the population had clearly voted NO.

The Netherlands (and France, amongst other countries) held consultative referendums with regards to the question of whether there should be a European Constitution for the European Union in 2004-2005. The Dutch (and the French) said no. In this instance the Dutch government saw itself forced indeed to give a negative vote towards the project and the European Constitution was stopped on this level. So even though within a consultative referendum the government is not bound to the outcome of the popular vote, it can on it's own accord decide to seemingly honor its outcome. However, with the ratification of the later Lisbon treaty in 2007, basically all the provisions that should have been in the European Constitution were accepted as part of the Lisbon Treaty and through this back door the desired changes were implemented anyways.

The Netherlands has a particular history with referendums.

At this point in time it would not even be possible for the Dutch to have a decisive referendum, in the sense that even if such a referendum were organized, its outcome would be invalid due to a specific arrangement in the Dutch constitution. In short, according to the Dutch constitution, only the government is a capable legislator. Therefore, those who are not the government, cannot vote on legislation. They cannot make laws.

Now let’s keep this in mind and let us look at a definition of democracy that is widely agreed upon throughout the world: «Government of the people, by the people, for the people» This quote is attributed to Abraham Lincoln, and you will find it in all textbooks that talk about the subject of democracy. What is interesting in this definition is that there is as such no differentiation made between the people and the government. The people in essence govern themselves.

The reason why I chose the topic of referendums is that it clearly allows us to see that the countries in Europe are simply not democracies. The Netherlands, which is popularly believed to be a free spirited country, does not even allow for the possibility of a decisive referendum. This per definition excludes the Netherlands from being a democracy. And the same is true for other countries in Europe.

Vigorous attempts in the Netherlands to change the constitution have failed time and time again. This ultimately culminated in the famous ‘Night of Wiegel’ (De Nacht van Wiegel). Wiegel was a senator who voted ‘no’ on the proposal for referendum and through his one vote was able to stop the change in the constitution. This led to a little crisis but once the votes were cast there was nothing that could be done. The constitution remained unchanged. An added ingredient to this whole mix is the fact that senators are actually not elected representatives in the Netherlands. They are voted into office by the provinces…

In the light of all this you will also understand that the 'new' (since 2007) tool utilized by the European Commission, namely the Citizens Initiative, is a highly deceptive instrument. It states that when 1 million signatures are collected throughout Europe on a specific matter, then the Commission will ‘have a look’ at the ‘demand’. This off course in no way obliges the Commission to do anything with this petition. They can simply brush it off their table and this is exactly what they have been doing.

It is important to come to terms with this state of affairs.

It is clear that ours societies have been evolving for some time now in a direction that is authoritarian. The question of the democratic legitimacy within decision making has become less and less relevant. The so-called financial crisis has greatly contributed to this evolution.

It is therefore suggested to rather than to ‘demand change’ to actually start educating oneself and to become an active force within society. There are many people and groups in the world that see what is going on and are starting to form collaborative networks. Instead of asking your governments to change, become the government, start scripting the future, get involved.