Sunday, November 20, 2005

International lawyers

Yesterday I went to an international law conference commemorating the 60th anniversary of the Nuremberg Trials. The Nuremberg Trials were set up by the victorious Allied powers at the end of World War Two to prosecute many of the main political and military leaders of Nazi Germany.*

The conference was great fodder for any international criminal law, despite the fact that it was held on a Saturday. Still, it was a tad depressing that most of the lectures and workshops had a very technocratic flavour. For example, the workshop on the crime of aggression didn't even mention Iraq, let alone the political dimensions that shape great power motivations towards committing acts of aggression. Instead, most of the discussion focused on the lack of a satisfactory definition of what exactly constitutes a crime of aggression. To be sure, an important and interesting issue. But surely a more important issue is trying to work out what exactly motivates nation states to commit acts of aggression?

Things got a little more interesting when the one real leftie in the workshop, who also happened to be a non-lawyer, asked whether any piece-of-paper definition would mean much to those states powerful enough to commit acts of aggression and get away with it. He was roundly howled down, and it was clear that the howlers (who were all government lawyers, some of them people I know professionally) were clearly on a different wave length. It were as if they were speaking a different language. What surprised me was my own reaction. I didn't say too much because I literally found myself getting very angry, to the extent that I was scared that if I spoke I would start shouting.** Afterwards, Mr Real Leftie and I concluded that it was time to have a drink, or two.

The whole discussion reminded me of that very special form of naivety that lawyers suffer from, especially in developed nations with a relatively good record of rule of law. There's this assumption that lawyers work with, unless they are powerful or counsel the powerful. In fact, there are two main assumptions. The first is the presumption of the equality of laws - that all laws are equal and implemented accordingly. The second is that laws alone are what administer societial structures and standards. The naivety of these assumptions are exacerbated in international law, where the actions of states and corporate power are fairly crude, to put it lightly. There is close to zero discourse by international lawyers on the rule of brute power, or the notion that power is a law unto itself. Listening to people 'discuss' the crime of aggression in that workshop was very much like listening to people discuss how many angels fit on a pin head. There was no real discussion of realpolitik, and it was assumed that countries always base their international actions on some international legal principle lest they offend international law.

Other than that, perhaps the highlight of the conference was a question from Prof Hilary Charlesworth to Sir Ninian Stevens, former G-G of Australia and judge of the International Criminal Tribunal for the former Yugoslavia. She asked Stevens if the Nuremberg trials amounted to victor's justice given the Allies' conduct during the war was never addressed.

Sir Ninian basically shrugged his (somewhat senile) shoulders and said we had to be'realistic' - no victor is ever going to have their own crimes scrutinised. But we should still be thankful for the advancements of international criminal justice made during Nuremberg. As he said the, I literally imagined Emmanuel Kant rolling in his grave somewhere in Europe. Still, I guess at least Sir Ninian was honest. I can think of the odd eminent jurist who would've simple remarked - 'Allies commit war crimes? Are you insane? We're the good guys!'

* Many others, including Werner von Braun, the father of the United States' missile technology, were given an amnesty.
** Yes, shout, like at the frosty old international law lecturer who wondered what else the West could do but invade dictatorial third world states in which the population is powerless to vanquish the dictator. I gently reminded him that it would help if the West didn't arm said dictators! Ok, so I didn't entirely shut up, nor did I shout either.

Wednesday, November 16, 2005

Two days ago I received the following e-mail from an Australian friend in Nablus, Palestine:

The night before the problems I was walking through the Old City at about 11pm. I came across some militants who were looking uncharacteristically serious. Usually they make jokes, but that night they weren't themselves. The same night I entered the Old City from the gate closest my house. It is always important to be careful when entering the Old City at that time. You must walk with a measured pace and keep your hands clearly in view so that no one mistakes you for Israeli Special Forces from a distance. Sometimes there are nervous 16 year olds with rifles on the Old City gates, so you have to be careful.

Anyway, as I approached the militant on guard from a distance, he cocked his rifle and slung it into a position at the ready. When he recognised me he bade me a good evening, but the fact that he had made ready to fire as I approached was unusual. I did not ask anyone why the militants were nervous that night - asking questions makes people suspicious - but I suspect that there were Israeli units moving through the greater city of Nablus on reconnaissance. This sort of activity is often the prelude to a larger scale invasion that evening or the next night.

The next night I was up late and around midnight at least 2, maybe three spy drones began to circle the center of Nablus in a repeating pattern. At 1am I sat on my roof for about an hour listening to the bloody things because they make me nervous and I couldn't sleep. The spy drones are messengers of death. Whenever they are in the sky, the Israelis are planning to kill someone.

At about 1:55am I heard an Israeli hummer (they make a very distinctive whirring noise) driving very quickly on the main road near my place. I heard a few militants excitedly moving along the alley below towards their positions, and now sure that problems were about to start, I decided to get off my roof in case a sniper in the nest above the Old City mistook me for a militant on lookout. I left the roof at about 2:05am and as I walked down the stairs I heard two explosions in quick succession. There was a pause of ten minutes, and then bursts of gunfire began. From what I could hear the fighting was occurring in at least three different places. I tried to get some sleep and for the next two hours I dozed fitfully and was woken up periodically by the fighting. At about 4am the fighting finished and I finally went to sleep.

The following excerpt was printed in Haaretz the next morning.


An IDF force of paratroops, police anti-terror teams, and members of the Duvdevan anti-guerrilla unit and Haruv infantry battalion carried out the raid, aimed at locating and arresting militants in the area.

More than a dozen explosions and several exchanges of fire were heard as soldiers in 15 jeeps raided an eastern part of Nablus and arrested eight suspected Hamas members and three more in other areas of the West Bank.

Witnesses said Hanawi had been shot while trying to flee the troops, and had sustained a head wound at close range. An AK-47 and a pistol were found on his body.

Hanawi is believed to have mastermided several suicide bombings in Israel in the 1990s.

Neighbors said the soldiers who raided the area first ordered Hanawi's family out of the house. While most members came out of the house, Hanawi refused the order and tried to escape. He was shot as he tried to climb a fence.

Hamas members then drove through the streets of Nablus, announcing Hanawi's death over loudspeakers. A funeral was planned later on Monday morning.

The army declined direct comment. But military officials confirmed there had been an arrest raid in Nablus overnight, and that one person opened fire on troops and tried to escape before being shot.


The witness testimonies that Hanawi had sustained a head wound at close range suggests a summary execution by the IDF. To sustain a head wound at close range is a difficult thing to do when you are trying to escape. Executions of militants that should be taken prisoner happen all the time. If that happened, and I am not saying that it necessarily did, it would not be anything unusual.

I happened to be at the rally the next day because I wanted to pick up some dry cleaning and the shops was closed until after it was finished. It was not very large and there was a sense of impotence about the whole thing. Militants shot in the air while the leaders railed hysterically over a sound system mounted on the back of a ute. The fact is however, that despite the rhetoric of the organizations, the capabilities of militant organizations have been severely curtailed by Israel.

To add insult to injury, the same morning of the funeral, some guys were caught trying to smuggle explosives through Huwarre, possibly on the way towards a retaliation bombing.

The situation continues on it's slow downward spiral while the Israeli government and settlers continue to build facts on the ground (wall, settlement outposts) to grab more land.

Tuesday, November 15, 2005

Malignant Design

Check out Chomsky's latest - a stirring critique of the present diversion that is the debate between 'intelligent design' and evolutionary science.

What amazes me about this debate is the abject arrogance and racism. It’s as though we can laugh off all other creationist narratives and squarely focus on the battle between science and the Judeo-Christian creation myth. Why isn’t there a debate about having Hindu creation myths taught alongside evolutionary science? What about Australian kids learning about the dream time along with biology and chemistry?

As Chomsky points out quite unambiguously, the current ‘debate’ is just a sham. It’s yet another politically motivated diversion. What we should be doing is having a serious debate about the role of science in furthering corporate profit and the development of ever more efficient methods to kill and destroy.

Monday, November 14, 2005

Mohammad Yousuf

Pakistan's cricket team no longer has any Christians in it. Yousuf Youhana, the sole Christian member of the squad, recently converted to Islam in what reports have described as a quiet ceremony. There is now only one non-Muslim in the team; Danish Kaneiria, who is Hindu. Mohammad Yousuf, as Youhana is now known, said he was not pressured to convert. Nor was his decision to convert motivated by career ambitions. Despite these claims, his mother is refusing to speak to him for spurning the family name.

In 2004 Yousuf was briefly made Pakistan's Vice-Captain. During the test series in Australia, when he captained in Inzamam ul-Haq's absence, many cricket commentators said they were impressed by his leadership skills. He even scored a century at the Melbourne Cricket Ground as captain of Pakistan. Very soon after that series, however, Mohammad Yousuf was replaced by Younis Khan. There were no racial murmurs about the replacement of the Christian Yousuf for Muslim Younis, but there was certainly doubt in my mind.

Ultimately, Mohammad Yousuf is a cricketer. He is not an activist or a politician. But as the sole Christian in perhaps the most religion-focused sport team in the world, Yousuf Youhana was someone Pakistanis could be proud of. Here was living proof that even in chauvinist, chronically crony Pakistan a poor member of a minority could enter the most glamorous, celebrated echelon in the nation. The son of a street sweeper, Youhana learnt his wares on the very same streets. That majestic back lift, that penultimate maneuver, before his bat swung down to meet the ball and, ever so inevitably, punch it away towards the boundary with tremendous power. I met Yousuf briefly once, when the Pakistan cricket team toured Australia in 1999 and I was working as a journalist for a local Pakistani newspaper. He was a very humble young man back then, and he barely spoke any English. His humility was striking especially given Pakistani cricket's propensity for attracting prima donnas with egos to match.

Now, Mohammad Yousuf, represents another, more familiar Pakistan. The Pakistan where minorities are apparently invisible, even whilst they are more likely to be persecuted. This is the same Pakistan where so many have apparently 'discovered' their faith in Islam, where more than ever, Islamic political parties claim to represent Pakistan's social and moral norms. Cricket is more than just a religion in Pakistan. Sometimes, it is an echo of the very social fabric which makes and breaks the five or six dominant ethnic groups that live in the land of the pure. So much potential, so much arrogance, too little commitment, too much talent. But, alas, no more Christians.

Wednesday, November 09, 2005

Far from adequate

The earthquake in Kashmir is probably the biggest natural disaster in recent years. Yet there has been breathtakingly limited international aid and support, especially when compared with aid pledged for the Asian Tsunami or even Hurricane Katrina.

It is also worth speculating on whether the Pakistani military establishment will finally remove its thumb and finally do something. To think that around 75% of the Pakistan Government budget is spent on the military. Even though the earthquake, like all earthquakes, could not have been preempted, you'd think a military establishment would be capable of reacting with even a semblance of discipline and purpose in the face of a crisis. Isn't that, after all, what national armies are for? To protect a nation's citizens? The earthquake has lifted the lid on something most Pakistanis already know too well. That their military is just a self-ingratiating political entity* with no serious interest in their welfare or, for that matter, solving that well-worn puzzle known as genuine Kashmiri self-determination.

* For example, did you know that since coming to power President Pervez Musharraf has been quietly acquiring public and private land, making him the single biggest private land holder in the country. Maybe he’s a fan of George Washington?

Israel is not a canary

On October 6th President Bush offered his latest vindication for the invasion of Iraq. The war in Iraq, he explained to the American people, was not unlike the war against communism and was being fought to forestall the emergence of a global caliphate stretching from Spain to Indonesia.

Those with a vested interest in the war's continuation understood that the president's new line represents another attempt to rally a disillusioned public behind the war and thus requires their full ideological support. It should come as little surprise, therefore, that on the October 10th edition of this program, Ted Lapkin of the Australia-Israel and Jewish Affairs Council added his own flourish to President Bush's narrative by warning that those fighting to create the emerging caliphate, had an ally among "post-modernist elites" in Australia who were sapping "our confidence in the rightness of our cause and will to fight".

Read the full transcript or listen to the audio here.

Monday, November 07, 2005


Huffing and puffing.
The pace is hectic.
My brain just stalls.
I feel dyslexic.

Do it now,
Do it quick.
But yet nothing,
Is ever fixed.

We run in circles.
In fact that's it.
We don't produce much,
Just lots of shit!

Daydreaming then
Becomes a vice.
The greatest curse,
A tortured price.

The Paris riots

...when you've got no hope, you look at things differently. You don't care. Most of these kids' fathers have never had a proper job. Why should they think things will be different for them?

What on earth is happening in Paris? Yet again, the most underprivileged, neglected sector of a population have resorted to violence but all we hear about is the end product. I've struggled to find some insightful analysis of the situation. Here's one good report from The Guardian. Anyone else have any useful info?

Wednesday, November 02, 2005

Terrorist threat or threat of dementia?

Is it just me or is it simply beyond coincidence that, at the very time when the Government has been smarting from a popular backlash to its repressive ASIO III legislation, Prime Minister John Howard goes on the air waves claiming we're in imminent danger from terrorists and need these repressive laws to keep us safe? Where is the critical media response? And where is the Opposition? Beasley, may he forever be remembered for the moral pygmy that he is (unless, of course, he finds some space in his portly frame for some backbone), says he supports the laws. He said he wants the laws to be friendlier to human rights, but if it comes to the crunch, he won't oppose the laws if they aren't.

What utter garbage. Seriously, whenever anyone says Howard is a genius they ought to be reminded that the Opposition could've caned him over these laws, if they had an ounce of courage and a shred of genuine ideological foundation. Beazley should be demanding information on the threat, and should unequivocally oppose the laws on the basis of how repressive they are. Of course that’s all rendered moot. This is what happens when members of the privileged sector of society pretend to represent our interests. Because their interests on a personal level are not at threat, they are not willing to threaten their political careers for the common good. After all, doing things for the benefit of the commons is typically a thankless task. Of course, if people avoided thankless tasks altogether chances are most of us would be roaming the streets and our most cherished rights would never have been won.

A mcnugget of wisdom from McHugh

"My own social views are probably as radical as anyone in this room - maybe more so."

Michael McHugh, one of the longest serving judges on Australia's High Court, has frustrated to no end by proferring his progressive credentials at the cusp of achieving irrelevancy. Apparently all it takes to be a radical is to be disempowered. For all his mighty rhetoric, having now retired, all one is left capable of asking is why he did not practice what he now preaches. McHugh argues that he was hamstrung by the law, and a strong adherence to what is typically known as 'black letter law', at least with regards to constitutional law. Black letter law is the legal philosophy of following the most literal, internally consistent interpretation of legislation and, to a lesser extent, the precedents set by previous court decisions. The problem with black letter law is that it looks more logical on paper. I've worked on several native title claims, for example, where the boundaries of the land in question, and to which those opposing the claim purport to correspond, are inaccurately recorded. Yet our very 'black letter' assessment of the claim rarely ventured into the realms of the simple question, 'is that really what the situation is on the ground?' Of course, in this situation, black letter law interpretations favoured those who opposed native title claims.

And the same may be said about interpreting constitutional law in a 'black letter law' fashion. More often than not it becomes an excuse to reach interpretations that favour governments, who after all derive their legal powers from constitutions, and big business, which have the capacity to influence government.

Why is it called judicial activism to favour more benevolent interpretations of the law which enable the empowerment of a greater number of the population? What is so radical about that?