Blogs and Legal Scholarship

Kenneth Anderson has a very interesting post on Law Professors Blogging (here).

His comments were sparked by the recent conference held at Harvard on Law & Blogging. (See the papers here).

Some interesting questions emerged:
1. To what extent blogging is a source of scholarship?
2. Will blogging replace conferences as a way of exchanging scholarly information?
3. Will law journals survive the competition with blogs?


I conclude with a point on european academics. Few of them blog, and many do not even know what it is all about. They are a bit slow to cope with a fast changing world of scholarship.

Luxuria goes to Parliament

Vlasimiro Guadagno, aka Vladimir Luxuria, has been elected to the Italian Parliament in the last election.

Luxuria is an italian transvestite who has a political career as well as a cinematographic pedigree.

He has been elected with PRC, an italian communist party.

His election should be welcomed in so far that it increases the plural representation at the italian parliament. In a country where moral conventions are at times very oppressive, especially in terms of sexual morality, Luxuria brings a breath of fresh air.

Whether Luxuria will fight for a liberalisation of the Italian sexual morality is beyond doubt. Whether he will manage to achieve results, still awaits to be seen, as the centre left itself, which is preparing to rule the country, has ambiguous positions as to sexual liberation.

Europe's Transatlantic Dilemma

European Parliament investigators have concluded that the Central Intelligence Agency has flown over 1,000 undeclared flights over Europe since 2001. (See, for example, the New York Times.) In some cases these flights carried alleged terrorists, some kidnapped in Europe, to countries that are known to use torture. Especially controversial is the conclusion that some European countries were aware of the over-flights, others of the kidnappings. This story highlights a continuing problem for Europe as it grapples with the United States’ often-excessive response to the problem of terrorism. European public opinion is often quite critical of what is sees as a U.S. foreign policy thrashing dangerously about in an attempt to destroy all perceived terrorists. (This includes the war in Iraq, which the administration has convinced many Americans, and apparently themselves, is an important part of the “war on terror,” and Iran, which the State Department calls the largest state sponsor of terrorism.) Many European governments face an almost insoluble dilemma, compelled to acknowledge critical constituents and their own misgivings about American foreign policy on one hand, and their own terrorism concerns and the need to maintain good relations with the Bush administration on the other. This task is compounded by the fact that the Bush team tends to react sharply to countries that dare to disagree on terrorism issues. As with many foreign policy issues, European responses have covered the spectrum, from extensive cooperation, like Tony Blair’s government, at one end to opposition, as in the case of Prime Minister Zapatero’s abrupt withdrawal of Spanish troops from Iraq, on the other. Many countries, however, have chosen a middle road, softly criticizing, maintaining silence or giving muted, lukewarm support to U.S. policies in public while turning a blind eye to U.S. actions, or even aiding them, in private. Obviously, these are not the ingredients for a common European policy on the issue of America’s response to terrorism. Even at the national level, European governments remain unsure as to how to sensibly combat terrorism and still maintain good relations with the Bush administration. Unfortunately, there are no easy answers. To a certain extent the Bushies have recently softened their “either with us or with the terrorists” approach to their allies. However, their zealous, myopic view on the subject of terrorism has not changed. It seems that Europeans governments will have to wait until 2008, at the earliest, for a more comfortable partner across the Atlantic, at least when it comes to terrorism.

Some 'additional' political problems in Italy

Today the Italian Senate and the Camera are electing their President.
The really important votation concerns the Senate, where the majority is very
very thin.
The first votation did not produce a President. In the second one, four votes have apparently been voided as they mispelled the name of the candidate...

How could this be possible? We hardly know.
What we know is that in the Senate the government will have to struggle each time to find a majority. It'd better be disciplined.

The Smithy Code: Cracked

All those hoping to see their name in lights as the first to crack the Smithy Code must now be disappointed. UK Lawyer Dan Tench has cracked the code, which was, apparently, based upon the Fibonnaci Sequence. Deciphered, it spells out the somewhat anti-climactic message "JACKIEFISHERWHOAREYOUDREADNOUGHT".

Disappointing, perhaps, to those not interested in the study of early twentieth century British Naval History - although many more people than before, myself included, will now know that Admiral Jackie Fisher, one of the Judge's favourite topics of study, was the first to come up with the idea for the battleship the HMS Dreadnought. An innovative means of drawing public attention to a slightly esoteric matter. And all in good fun.

The Rhetoric of the War on Terror: Lessons Learned from a Past Master?

As a whole, and at all times, the efficiency of the truly national leader consists primarily in preventing the division of the attention of a people, and always in concentrating it on a single enemy. The more uniformly the fighting will of a people is put into action, the greater will be the magnetic force of the movement and the more powerful the impetus of the blow. It is part of the genius of a great leader to make adversaries of different fields appear as always belonging to one category only, because to weak and unstable characters the knowledge that there are various enemies will lead only too easily to incipient doubts as to their own cause.

As soon as the wavering masses find themselves confronted with too many enemies, objectivity at once steps in, and the question is raised whether actually all the others are wrong and their own nation or their own movement alone is right.

Also with this comes the first paralysis of their own strength. Therefore, a number of essentially different enemies must always be regarded as one in such a way that in the opinion of the mass of one's own adherents the war is being waged against one enemy alone. This strengthens the belief in one's own cause and increases one's bitterness against the attacker.

These words, written in the mid-1920s, are remarkable in that they seem to have been taken very much to heart by the current Bush administration. In a sense, the whole rhetorical project of a global "war on terror" is an excise in precisely what is recommended above, reducing various enemies of quite different natures to one single categorisation, serving to suppress questioning of the motives and justification for action in the process. In Iraq, for example, the shift in justification from weapons of mass destruction to combatting global terrorism has been well documented; we can only wonder how long a similar shift will take in relation to Iran and any resort to military force in that context. And then, of course, there is the "axis of evil" rhetoric, which brings together, under one of the vaguest umbrella terms imaginable, states as diverse as Iran, Syria and North Korea.

This thoroughly dishonest conflation and reduction of various different enemies is at the very heart of current US (and, perhaps to a lesser extent, UK) foreign policy rhetoric. It's effect is perhaps best encapsulated in an anecdote from Eliot Weinberger's piece in the London Review of Books, "What I Heard About Iraq". He notes that one US soldier serving in Iraq said "There's a picture of the World Trade Center hanging up by my bed and I keep one in my Kevlar. Every time I feel sorry for these people I look at that. I think: 'They hit us at home and now it's our turn'." Mission accomplished, in terms of the course of action suggested in the opening quote.

The passage with which I began this post, then, is remarkable for the manner in which it successfully depicts, from a distance of eighty years, what must be viewed as the deliberate and conscious strategic choice of the US administration in its formulation of foreign policy rhetoric. It is a rhetoric of "unify and conquer", through providing a devil-figure against which the masses can rally, to which all opposition can be reduced, and in terms of which all questioning of the "rightness" of the chosen course of action can be supressed. It and its manifestations must be a primary target for those who seek to allow "objectivity to step in", in order that the question may again be raised in a siginficant and effective manner as to "whether actually all the others are wrong and their own nation or their own movement alone is right".

The opening passage, incidentally, comes from Mein Kampf.

The Smithy Code: Who says the law's no fun?

Bravo to Mr. Justice Peter Smith, the judge who presided over the recent copyright case involving Dan Brown's Da Vinci Code and the authors of the book The Holy Blood and the Holy Grail. Essentially, the latter claimed that the former had plagiarised the central theme of their book and, as it was now an international bestseller, wanted their slice of the pie.

The case itself seems to have been pretty much open and shut, with the expected finding that no copyright infringement had taken place. However, the judgement itself is written with no small degree of humour at points (Thanks to The Virtual Stoa, via the Valve, for flagging these passages). For example, in discussing the performance in the witness box by Michael Baigent, one of the claimants, he notes that "Mr Baigent was a poor witness. Those are not my words: they are the words of his own counsel in his written closing submissions... Those words do not, in my view, do justice to the inadequacy of Mr Baigent's performance" (para. 231). he then went on to note (para. 232) that

... the Defendants are right in their submissions... to submit that he was a thoroughly unreliable witness. They say they do not know whether he was deliberately trying to mislead the court or was simply deluded and that he is either extremely dishonest or a complete fool. I do not need to decide that issue...

The judge, however, has not confined his fun to a few asides in the judgment. Many lawyers reading it were a little bemused at first by what seemed to be a number of typos - a number of apparently random letters in words italicised - right from the very start of the judgment. However, when taken out from the text and arrayed in order, the first ten italicised letters form the words "smithy code". The judge has since acknowledged that he couldn't resist, given the subject-matter of the case before him. He noted, quite rightly in my view, "I don't see why a judgment should not be a matter of fun".

The Guardian suggests that there are an additional 25 letters italicised in this manner in the first 14 pages of the document - I think I've found a few more, but make no claims to exhaustiveness: J a e i e x t o s t g p s a c g r e a m q w k a d p m q z. Of course, the italicised letters may not be the only clue in the text, and their location in context may also be significant, but I've wasted enough time on this already...

The Great Civil Liberties Debate

Over the past few days, a quite startling debate has opened up in the UK between the Government and journalists from the country's left-wing broadsheets, most notably the Independent and the Guardian. Of course, the Government's record on civil liberties since the terrorist attacts of September 11 2001 have long been the object of criticism from both left- and right- wing columnists, and these attacks have intensified as proposals for the introduction of national ID cards have concretized.

The debate seems to focus around two journalists, Henry Porter from the Guardian and Simon Carr from the Independent, who have been among the most vocal recent critics of the Government's record on civil liberties. Porter, in particular, has published a number of opinion pieces in this regard. Blair attempted to respond in very much his usual manner, with a broad sweep at the issues in general in an article in the Observer. All of the familiar elements are there in this piece: his acknowledgement of the bona fides of his critics, while asserting that they are wrong; his refusal to characterise the debate as one of liberalism v. illiberalism, insisting that instead it is in terms of modernity that it must be understood; the related claim that the world in which we are now living is fundamentally different from that of even ten or fifteen years ago, requiring different legal solutions; and his plea for the public to trust him.

It was, however, by his standards something of a lacklustre article; and it certainly didn't serve to quieten the growing criticism on the issue. Thus it is that the Government has decided, in the past week, to get personal. The Observer published on Sunday an email exchange between the Prime Minister and Henry Porter, in which the latter responds directly to the claims of the former. Furthermore, in what must have been a concerted move, Charles Clarke, the Home Secretary, released a lengthy, point-by-point rebuttal of the claims made in one Independent article by Simon Carr. Clarke has gone even further, publishing a comment piece in todays Guardian, accusing the Government's critics of "lazy and deceitful" journalism - a far cry from Blair's earlier recongnition of their bona fides.

To me, these latest pieces by the Government are a much more effective means of taking their arguments to the public than the general approach adopted by Blair earlier porved to be. For almost the first time, we get a glimpse that there is genuine anger about the way in which their actions have been portrayed by journalists who, until now, could expect not to be singled out by name for any errors, reductions or half-truths in their work. That, it seems, has changed; consider Blair's opening paragraph in response to Porter's email: "Frankly it's difficult to know where to start, given the mishmash of misunderstanding, gross exaggeration and things that are just plain wrong".

What the pieces by Blair and Clarke do, and do well, is to point out the technical reasons for the introduction of certain laws, and through this manage to make the self-important, almost pompous tone that someof the criticism occasionally and regrettably descends into appear a little absurd. For example, where Porter claims that the Goverment's curtailing of the right to trial by jury is part of a paring down of our liberty at an "astonishing rate" (making Blair in the process "a serious threat to British democracy"), the Prime Minister calmly points out that this is to be done only in a number of serious fraud cases, which can last years and put unreasonably time pressures on members of the public. Further, it is clear that, given the techincal complexity of these cases, having a lay jury may well be an impediment to rather than a guarantee of justice. He makes similar points in relation to the right to silence, amongst others, and, to my mind, comes across, in that exchange at least, as the more measured and reasonable of the interlocutors.

And this is perhaps the most frustrating thing about the debate. By seeking to attack the Government on as many civil liberties questions as possible at once, its critics all-too-often allow for weak argument, which rely upon hyperbole and the existence of the other, stronger arguments for all apparent strength of their own, to creep into their work. For example, in the second paragraph of his piece, Porter attacks the fact that

the right to trial by jury, the right to silence, the right not to be punished until a court has decided that the law has been broken, the right to demonstrate and protest, the presumption of innocence, the right to private communication, the right to travel without surveillance and the details of that journey being retained - all have been curtailed by your legislation.

As suggested above, many of these can be responded to with relative ease: jury trials are gone for limited serious fraud cases only; the right to silence was curtailed, in very limited cases involving children or vulnerable adults as victims, as far back as 1994; etc. In attacking these claims one by one - which, in reality form a very small part of Porter's criticisms - Blair appears to be giving a very full, frank and reasoned rebuttal of all of the points raised. In fact, to my mind, he does not even begin to formulate a response to the most powerful of the criticisms.

Thankfully, in the conext of the Porter - Blair exchange, subsequent emails allow the former to return to make the more important points again. One is the point that, for all Blair's protestations of the highly limited cases in which new powers will, in fact, be used, it may well be more difficult to limit the precedent once it has been set, so that "Lord knows how all this may be abused by future governments". To this point, Blair does not really respond. Also, Porter quizzes Blair in terms of one of the central themes of his defence - that these protections are what the public wants, and that those who criticise them are "out of touch" with what the public want - with the very valid assertion that civil liberties are often there to protect individuals from the whim and caprice of the majority; in this regard, Blair's populist justifications appear to be simply the wrong type of argument to achieve the result he seeks. Again, Blair does not answer this particular criticism.

A related, but more interesting defence formulated by the Prime Minister, however, is the idea that, by insisting on civil liberties for suspected criminals, we of necessity infringe upon those of the law-abiding majority:

I just think the practical effect of following the course you set out is a loss of civil liberties for the majority. In fact, a better criticism of the politicians, including myself, is that we need to do more on rehabilitation for prisoners, activities for young people, and community engagement with the disaffected and alienated within our society.

He is, of course, quite right regarding his second point. He is, I think, also correct in his assertion that human rights have moved beyond simply that of the individual against the state, and that individuals can be seen as violating the human rights of others. Blair thus talks of the right to go on the tube without being bombed, the right to live without being the victim of antisocial behaviour, etc. These rights, of course, will always have to balanced against each other in a necessarily messy and imperfect dialectic, the outcome of which will always be debatable. One thing to bear in mind here, however, is that, as Blair openly acknowledges, a set of laws already exist within ordinary criminal law to defend the majority against these infringements of their rights; granted, they are never 100% effective, but the protections are nonetheless in place. Against the overwhelming coercive power of the state, however, the individual has little or no protection beyond his civil liberties. When seeking to impair these to defend those of the majority, the already-existing protection imbalance must be taken into serious consideration; Blair's claims simply do not do this.

This debate, then, could be about to get interesting. Too much of it for too long has been conducted in generalities, reductions, simplifications and pompous rhetoric - on both sides. If it is allowed to stagnate into an abstract "Civil liberties v. security of the majority" controversy, then nothing of any intellectual or practical use will be achieved. If, on the other hand critics begin accepting those Government arguments that are persuasive on certain points, and cease the attempt to beat it with the biggest and broadest stick possible, and the Government is prepared to moving beyond the repetition of mantras ("out of touch", "civil liberties of the majority", "tragic events of 7/7") and engage with the strongest, as opposed to the weakest, criticisms of their actions, then we may just have the makings of an interesting and useful conversation.

UK Government split over possible action against Iran?

A quick update to Jack's post below on the allegations that the US is preparing for a military strike against Iran, and even considering the use of nuclear weapons in any such attack. The British foreign secretary, Jack Straw, has been quite forthright in denouncing such ideas, claiming on BBC radio's Today programme that it was "inconceivable" that the UK would support any military action, and ridiculing any consideration of a nuclear strike as "nuts". Blair, on the other hand, has refused to take the military option off the table, arguing that to do so would take the pressure off Iran and constitute a sign of weakness.

It is interesting that these two positions differ significantly, particularly since the two men are not known for disagreeing over matters of foreign policy. Blair's position is worrying: the argument that military action must be kept open as an option is all-too-familiar from the build-up to the Iraq war; and requires, if it is to be effective, that it be unlikely that, in the final instance, the threat of the use of force will prove to be a mere bluff. Put simply, it will only work to add pressure if we are, in fact, prepared to use force; and, given Iran's past record of intrasigence when faced with Western demands, coupled with the increasingly stubborn rhetoric coming from the current administration there, it would be a brave man indeed who bet against them forcing some such showdown over their nuclear ambitions.

Blair, of course, if he chooses to bet, will not do so with his own money, his own life; he will do so with that of other people (which would, of course, make any such choice considerably less "brave"). Less worryingly, however, I think it is Straw's position that more accurately reflects the current political reality in the UK. It is, to me, inconceivable that the UK would follow the US into taking military action against Iran, for several reasons. Firstly, as Straw points out, it is highly unlikely that the Attorney General would this time give any sort of support to the legality of any such action (not even the highly equivocal support he gave to the Iraqi adventure); we need only look at the controversy surrounding Lord Goldsmith's Iraq briefing to see that the issue of international legality remains of crucial importance on the British political scene. Secondly, and perhaps more importantly, I simply can't see the majority of the parliamentary Labour Party, many of whom are becoming more and more disillusioned with Blair, supporting (or, in fact, allowing) such a move. Lastly, Blair is already something of a "lame duck"; no-one knows for certain when he'll go, but everyone suspects that it will be in the next twelve to eighteen months. It would be difficult indeed for a Prime Minister in such a position to lead his country into such a controversial and divisive military conflict, particularly as it is clear that he would not be the one to see it through to its conclusion.

Which, of course, raises the question: What would Brown do? The answer is that no-one really knows; he has very much kept his own council on controversial matters of foreign policy that fall outwith hsi immediate remit as Chancellor. At present, I would expect that he will follow a very similar course of action: head down, mouth shut, and only when forced to mumbling his "support for the Prime Minister". However, were matters to come to a head, I would be surprised and disappointed if Brown did not take a stand against any military action against Iran; any failure to speak out then would be political accomplice or cowardice, not the pragmatism that I suspect his approach to now has been characterised by; and it would mean that he began his own period of premiership, if that is to be what comes about, very much as damaged goods.

Italian Supreme Court rules on the Elections

The Italian Supreme Courts confirms the results of the elections.
Not a big surprise, but maybe a starting point to accept each other.
Prodi won, not by much. Berlusconi lost, not by much. Still, there we are.

Italian democracy shows parallels with the US. Prodi introduced the idea of the primaries. Also, we now have an election evntually decided by the supreme court. The parallel stops there, but the coincidence is interesting.

Needless to say, Berlusconi will have something to say about the supreme court. Probably, he'll say that they are a bunch of communists. Let's just smile at that.
The nightmare, for today, is over. Now, we have to work towards the dream of a better Italy within a great Europe for the sake of a just world.

Can we be racist towards ourselves?

My last post sparked some controversy apparently:

With all due respect to your blog, I must remark that some of the posts on the Italian elections did not represent a fair (I am sorry to say nor informative) presentations of the political reality in Italia. They are highly opinionated and in my mind neither give an interesting view point to the reader. Moreover they are racist towards the Italians, " Spaghetti Elections"??? not to mention other words you say. Often your political assesment of the situation is not bad, but I must make a strong remark against the low level style of expression...
Paolo C.

Here's a reply, with an open question that I find interesting.
Thanks for the feedback Paolo.

I'd say I am glad that the my post stirs a bit of controversy.

Also I am glad to see that you have some patriotic feelings. I'd love to be patriotic too, but at times I look at the political scene and I am slightly worried.

Italy is a great country but its politicians do not represent us well. Neither Prodi nor Berlusconi.

Spaghetti Elections is a slight adaptation of the more famous Spaghetti Westerns. I can assure you that Sergio Leone's movies are amongst my favourite. And they are considered such by many.

I personally don't see a bad connotation to it. But I guess that it is a matter of taste. And you're free to say that I have bad taste!

The open question I hinted at is the following: can we be racist towards ourselves?
Hard question. I find myself being very critical of Italy at times. Yet, I think I deeply love it, and miss it.

Racism, as I understand it, is an unjustified negative judgement on the ground of some physical or cultural features with the intent of discrediting an individual or a group of individuals.

Now, it is not disputed that my judgment is at times negative as I said. Is it unjustified? I hope not. But there may be substantive arguments that show this.
I do believe that some cultural features of our polity are bad and I don't refrain from saying it.

Am I trying to discredit Italians, including myself? I don't think so. It would be a self-defeating strategy if this were true. And I certainly do not want to do that.

Is criticism towards one's country a way of discrediting it? I don't think so.
The problem seems to be language. Certain expressions triggered the controversy.

Spaghetti is one of those. First, I think that spaghetti is an eminently positive thing. But again, I know that italians living abroad do not like stereotypes of the kind: spaghetti, mafia, mandolino.

To this extent, the expression may sound derogatory, I can see that. But again no matter how much I love my country, I can't refrain from thinking that the past elections gave a very sad image. Something we should be upset about; something we should try and avoid for the future.

Spaghetti Elections one week after

One week after the Melodramatic elections, it is time to reflect calmly about the result and the future prospectives.

Berlusconi had his last temperamental outburst. Totally predictable, by the way. But now he accepts that he is on a downward slope. His reign comes to an end. He can peacefully rests in his new house in Switzerland, bought despite the prohibition of local laws.

Prodi is not the panacea. He is as old as Berlusconi (70) and he is not properly speaking a liberal: He's much too catholic to be a fully progressive leader. Some will be happy with this, I am not. More importantly his political vision is not compelling. As a president of the European Commission he has a very mixed record, if not negative. As a former prime minister, one cannot really recall major breakthrough. If anything, his failure to reform adequately Italy paved the way for Berlusconi.

A majorn concern is the renewal of the political class. We cannot expect that the huge generational gap can be solved if we do not begin with the people representing us. Daring young muct be the keyword for Italy. A reason for its backwardness is precisely the aniquity of its political leaders.

Civil actions in respect of foreign torture: our Government says...?

The UK Government's attitude to torture - already deeply ambivalent - has taken another turn with the recent news that it will intervene in a case coming up before the House of Lords, on whether Saudi Arabian officials should be immune from civil action in the English courts for allegedly torturing British citizens wrongly accused of carrying out bomb attacks in Saudi Arabia. It will come as little surprise to those who have followed Blair's Government's recent record on torture - from seeking to have evidence obtained therefrom overseas declared admissable in UK courts, through their attempts to deport aliens to countries where they would be at risk on the basis of memoranda of understanding with the respective governments, to the almighty and ongoing fudge on the issue of the US "extraordinary rendition" flights through UK airports - that they will be seeking to defend the Saudi officials' immunity from civil action.

Happily, things have not gone according to plan for Blair on this issue: the attempt to have torture evidence declared admissable failed; the memoranda of understanding, although awaiting their first real legal test, have attracted a high level of public judicial skepticism and suspicion; and the rendition flights have been embarassing, to say the least. So what of the chances of this latest attempt? And, perhaps more importantly, why is the UK Government so intent on securing the immunity of foreign torturers of falsely-accused UK citizens?

The case, Jones v. The Ministery for the Interior of Saudi Arabia, has already been heard by the Court of Appeal, in October 2004, who decided that, although the Kingdom of Saudi Arabia itself could not be the subject of a civil action in respect of torture in the English courts, the officials who carried it out could, in principle, be so called to account. This judgment, incidentally, is well worth reading - it contains an impressive array of analyses of case-law from various national, regional and international jurisdictions, and it is one of the first that I have come across that attempts to grapple with the jurisprudential mess left by the Pinochet affair before the House of Lords: two cases, and numerous separate judgments - some concurring, some dissenting, but all for slightly different reasons. It is also signifcant in that it notes that the idea that the prohibition of torture is now a jus cogens - a peremptory norm of international law - was an unproblematic given for all the parties to the case.

It's probably worth recalling at this point that the case, and international law generally, establishes a difference between immunity rationae personae and that rationae materiae. The first attaches to persons of Heads of State and of diplomatic missions, in their capacity as representatives of the State, and is absolute for as long as they hold that role - it was only after Pinochet had retired that foreign courts could even entertain an action involving him. This reflects the general immunity of States from prosecution in the national courts of others (there are some, mostly commercial, exceptions - see, for the UK, the State Immunity Act of 1978, Part I), and explains the first finding of the Court of Appeal - that the Kindgom of Saudi Arabia was immune from civil action in the UK courts in terms of the alleged torture suffered. The second form of immunity, rationae materiae, is more limited in that it is not absolute; it covers only those acts carried out in an official capacity. It is, however, considerably broader, in that it applies to all officials of the State. It is therefore this second that is of most interest in this case.

The basic reasoning seems to follow some of that which was central to the final judgment in the Pinochet case: that the Torture Convention cannot be read as being compatible with the applicability of state immunity rationae materiae in respect of the acts that it prohibits. Again, the judges note that those Law Lords who came to this conclusion did so on different grounds, but the simplest - and, in my view, the soundest - was that of Lord Millet, who simply said that it was inconceivable that the Parties to the Convention - which defines torture as certain acts committed by State officials acting in an official capacity- intended to provide immunity for everybody who perpetrated the acts that it sought to criminalise, and over which it compelled States to establish jurisdiction. This meant that, although Pinochet's immunity as Head of State was absolute for as long as he held that role, he could claim no immunity in respect of torture once he had retired.

On this basis, the likely outcome of the case seems clear enough - the House of Lords has effectively already held that immunity rationae materiae does not attach to acts of torture carried out by State officials in their official capacity (be that due to an implied waiver in the Torture Convention, or the fact that torture can never be an "official act", the result is the same). There is, however, one potential complication (leaving to one side how deeply split the Lords were over the Pinochet affair - in both judgments): they have only dealt, thus far, with immunity from criminal proceedings in cases of torture, while the present case involves an attempt to sue through the civil courts.

Perhaps surprisingly, an initial look at the final Pinochet judgment suggests that this difference may be more singnificant than it at first appears: the speeches of three of the judges who voted in favour of extraditing Pinochet on the charges of torture, Lords Hutton, Millet and Phillips, contained dicta which seemed to suggest that the immunty rationae materiae for acts of torture would continue to exist for civil cases, and be excluded only in criminal proceedings (See judgment, paras. 55-57). Lord Millet, for example, observed that "the very official or governmental character of the acts... still operates as a bar to the civil jurisdiction of national courts, and continued, (at p. 278) to say:

I see nothing illogical or contrary to public policy in denying the victims of state sponsored torture the right to sue the offending state in a foreign court while at the same time permitting (and indeed requiring) other states to convict and punish the individuals responsible if the offending state refuses to take action. This was the very object of the Torture Convention.

Of course, it may be argued here that Lord Millet, although making explicit a distinction between civil and criminal responsibility, refers only to the former in terms of the State and the latter in terms of the individuals themselves. Lord Phillips, however, was perhaps the most explicit, stating that while a civil action indirectly impleaded the State, the same was not true of a criminal action, where only the responsibility of the individual was concerned (p. 281 of Pinochet 3). He went on to note that, if the State Immunity Act of 1978 was an accurate reflection of international law, "two propositions are made out in relation to civil proceedings".

(1) One state will not entertain proceedings against a former head of state or other state official of another state in relation to conduct performed in his official capacity. (2) This rule applies even if the conduct amounts to a crime against international law...

These may suggest that the Law Lords will back the UK Governments attempts to have the immunity of the Saudi officials recognised. However, it would, I think, be a mistake to read too much into them. Firstly, and I think this not unimportant, the current politics of the judiciary in the UK seem overwhelmingly in favour of limiting Government action, particularly in areas such as these. Perhaps more importantly, however, it should be remembered that these were only dicta - remarks that barely registered as significant in the context of the complex judgments of which they formed a tiny part. The judges of the Court of Appeal go to some lengths to state why they reject this proposition, drawing on an impressive range of international jurisprudence - and in particular on a lengthy discussion of US case law - in the process. They note, for example (para. 76 of the Jones judgment) that it is not at all clear why a civil action impleads the state in any manner more objectionable than would criminal proceedings. Perhaps most significantly, Lord Phillips himself is one of the judges who sat on the case, and he (at para. 128) directly and explicitly withdraws his comments from the Pinochet case, quoted above, stating "On reflection I have concluded that the argument [that the state is indirectly impleaded] does not run in relation to civil proceedings either". In both, it is the personal responsibility of individuals, not that of the State (which is (almost) always immune rationae personae) that is implicated.

Lord Phillips, then, has reconsidered; and it seems to me likely that Hutton and Millet may well do so too. However, given how close the judgments in the Pinochet case were, and the fact that the House of Lords is not bound by its own precedent, the outcome may depend upon the composition of the court for this particular case. Nonetheless, it would be surprising if, distinctions between civil and criminal actions notwithstanding, the court did not decide to follow the reasoning that roughly characterised the majority opininion in its earlier, important judgment. To do otherwise would call the integrity of the initial judgment - and of the court itself, already damaged over having to hear the same case twice - seriously into question. Expect, I think, another judicial slap in the face to Governmental ambitions in terms of the law relating to torture.

It is also, however, important to ask: why is the Government is so keen to protect Saudi torturers of UK citizens from civil actions in UK courts? The answer can only, I think, be in terms of international precedent. A quick skim of the Court of Appeal judgment is sufficient to show how influential decisions of major national courts on topics like this can be in jurisdictions across the world. I have already suggested that Blair's plan to use memoranda of understanding with governments known to torture people in order to facilitate extradition and returns could possibly give rise to some legal accountability on his part for any acts of torture committed on such people afterwards. This may seem a little far-fetched, but the more publicly the Prime Minister is seen to be attempting to subvert and erode national and international protection mechanisms against torture, the more likely it becomes. It certainly has the potential to make life more difficult for his US allies, given their rendition practices. And what of the UK's previous record? Not the happiest, in terms, for example, of its treatment of Irish prisoners. Is there a chance that a House of Lords judgment rejecting immunity from civil actions for acts of torture might lead to a spate of claims being lodged in Dublin?

Whatever the concrete reasons behind this intervention, it seems - and will be viewed - as the continuation of a developing trend: the continuing subversion of the much vaunted and oft-proclaimed universal prohibition of torture. If the mechanisms in place to make this prohibition effective are to themselves remain of worth, then it seems that we, in the UK at least, have once again our unelected, conservative judiciary - rather than our elected, "progressive", social-democratic representatives - to thank for this.

Urbi et Orbi: Italy and the World in the Pope's speech

In his Urbi et Orbi Easter benediction, the Pope expressed his concern for the unstable political situation in Italy.

Wise words, I am bound to say. It is a pity that the centre right, which claims a closer relation to the Vatican at least in term of values, does not seem to listen to that message.

Italy, and Europe, are at the very centre of the thought of Ratzinger. It is not surprising, therefore, that the first preoccupation in today's speech is directed to the political context that characterize these years.

From this point of view, we can see a major difference with his predecessor. Wojtila was concerned in the liberation of Eastern Europe from communism. Ratzinger is more concerned with the construction of a strong Europe based on Christian Values.

Destroying the Italian institutions: cooperating with Lega Nord?

Berlusconi is playing a really dangerous game. He is using the slim victory of Prodi's coallition to delay the formation of the Italian government, stay longer in power, and build a strong defence in the vake of the expected onslaught on his financial empire. It is legitimate to defend oneself but the words, "you thought you will get rid of me easily" do not sound as a joke (Berlusconi wanted it to be most probably) they are a sinister menace to a democratic system and should eb avoided. Berlusconi is using the fraud argument to prolong the formation of the new government. This is not sincere, even if there were frauds, they were minor individual acts and remain totally unable to affect the electoral outcome (after all it is more than strange that an incumbent candidate refuses to accept the electoral results as they are). Every democratic system, Italy is not an exception, suffers from certain mistakes and electoral abuses, however, they usually remain insignificant and generally unable to change the overall popular will. One could easily say that they were almost no Italian elections since 1946 untill today, that went completely smoothly, nevertheless, the margin of error and abuse was tollerable. One of the US Presidents 'caught' his adversary presidential candidate in fraud, the fraud was not decisive for the electoral outcome and he decided to remain silent, esspecially for the sake of the legitimacy of the institutions. Is one cheats like Milosevic and Lukashenka this is one thing, but if the electoral fraud remains minor and more importantly an individual act, without the ability to affect the general outcome of the elections, a responsible democratic politician, friend of the institutions should remain silent. Another time, Berlusconi proves he is none of the above, he is a greatest mennace to the Italian democracy since Mussolini.

Prodi on the other hand faces a tough choice, governing with the support of the senators elected by the Italians living abroad, and support of the senators for life will often not suffice, first they are doubtfully to come to the sessions of the Parliament regularly and even if they do governing Italy with such a slim majority will be extremely difficult. Many advise Prodi to form a Grosse Koalition, with some of the parties from the coallition of Berlusconi. Many think of Cassini's UDC. This would be great mistake, because the price to pay would be dear. Prodi has another option, no one in Italy talks about. Offering Lega Nord to continue the process of devolution and in return ask for support of governmental reforms without having to take Lega Nord into the government, neither offering them a place of the chairman of the Senate. With 4.5% of votes Lega won Prodi could rule calmly. Preferably individual members of Lega Nord would have to control themselves and minimize their racist discourse on immigration. Just an idea, Lega supporting the Government as an outsider.

Catching Two Godfathers with a Stone

The Godfather, Silvio, has finally been scooped out of his golden throne. Near Corleone, at the same time, the boss of the bosses, Provenzano, was found hiding in one of his mansions.

Two parallel stories, an incredible coincidence. Italian Police has been hunting Provenzano in the last fourty years. Equally, in the last fourty years, we saw the ascension of Berlusconi. From the building industry to the media empire.

Now, in one day, both fall down. It is a true liberation, something almost divine, and sublime. Perhaps it is only a coincidence that it happens during easter week. But I am tempted to convert myself and become a devote.

The two dying animals will disappear in time. We'll have to be patient though. They will struggle more than ever to free themselves from the possibility of their extinction. Plus, there are too many interests surounding them, for this to be a peaceful process. But the process has begun. Italy can only hope in a better future.

Italian 'Usual' Melodrama

Politics is the italian national sport. We keep inventing new scenarios and the last elections confirm our traditional habit.

In one day, Prodi won, lost, and then won again thanks to the votes of those italians, like me, who live abroad because they can't take so many political emotions (also because the job market is not exactly open; finally because Italy sends abroad the most qualified people in a masochist effort to sink the country once and for all).

Berlusconi, of course, has not lost. He never does, and probably he will never die. After all, he compared himself to the Christ. And this was an understated image he gave himself.

Anyhow, here we are with a very slim majority in favour of the centre left. Ruling the country will not be easy. Plus, there are some forthcoming institutional challenges, such as electing a new president of the republic. No small deal, given that he has to be voted by 2/3 of the parliament.

Let me conclude on one of my conviction. Berlusconism, his political philosophy, is over since long. He finally understood it, and will very probably step down to let someone else do the job. I am really looking forward to the day where we will stop talking about that huge anomaly called B.

Bush at War Again?

A flurry of reports (see, for example, Joseph Cirincione, Seymour Hersh and the Washington Post) have appeared in recent days indicating that the Bush administration is seriously considering military strikes in an attempt to halt Iran’s alleged covert nuclear weapons program. Administration officials have countered by stressing their commitment to a diplomatic solution to the crisis. However, judging from recent speeches, administration officials seem to be preparing Congress and the American public for the possibility of military action. More worrying is the fact that the military and intelligence communities are engaged in extensive war gaming and that many insiders consider military action against Iran to be very possible. To foreigners the idea of air strikes or covert operations against Iran seems incomprehensible. Indeed, British Foreign Secretary Jack Straw, desperate to demonstrate that his government does not endorse such action, characterized reports about possible strikes as “completely nuts.” However, the world needs to take the Bush administrations preparations very seriously, not only because the President is fully capable of ordering an attack against Iran, but also because the consequences would be catastrophic. Foreign observers often fail to appreciate how profoundly 9/11 impacted Bush’s national security team. Already inclined to aggressive nationalism, a Manichean worldview and unilateralism, 9/11 greatly heightened the administration’s threat perception and their willingness to pre-emptively or even preventively attack perceived threats to American national security. These traits, combined with a dose of neo-conservative zeal for spreading democracy, close ties to the oil industry and a deep commitment to defend Israel, make Iran the perfect villain for the Bush team. It almost goes without saying that an American attack on Iran would be foolish. Anxious to avoid the fate of Iraq’s centralized, ill-disguised nuclear program in 1981, which Israeli warplanes destroyed, the Iranian government has dispersed and fortified its nuclear facilities, making a successful air strike doubtful. Even in the event of a successful attack, the effects would be counterproductive. Iran’s program would be slowed, but almost certainly reconstituted. Reformers in Iran, already beleaguered, would be completely marginalized. In fact, the government’s nuclear program is popular in Iran. Iranians are strongly nationalistic, and an attack would destroy the substantial goodwill most Iranians have for America and rally the public in support of the government. Finally, American relations with the world’s 1.2 billion Muslims, already poor, would be obliterated. The Bush administration has been content to pursue a diplomatic solution to the Iran question, while simultaneously preparing to attack if negotiations fail. Helpfully, European governments have, for once, been unified and consistently engaged, pushing a multilateral, non-military approach to the problem. However, Tehran seems determined to obtain nuclear weapons and unwilling to make meaningful concessions. While there is still time left before diplomatic options are exhausted, President Bush’s term ends in 2008 and it is doubtful that he will pass what he considers to be a massive national security threat on to his successor. It is essential that the world take the Bush administration’s military preparations seriously and do every possible to derail them. The alternative really does not bear thinking about.

Italian Elections: Clear results?

The first predictions show a clear advantage of Prodi's coalition.

But they are only statistical data based on interviews, so there is a margin of error.

Berlusconi's coalition seems to have lost, but it is still unclear whether Prodi will have a clear majority in both the lower chamber (camera) and the higher one (senato). In Italy, the senate is elected by people who are over 25 years old. The camera is elected by those who are over 18 years old.

Another interesting point is that Berlusconi's party has not lost points in relation to other parties within his coalition. This means that Berlusconi's allies will have to struggle a lot to be able to get rid of Berlusconi as the head of that coalition.

Unfortunately, the disastrous electoral law voted by B. and friends brought back Italy to a proportional system without threshold, which is very likely to increase the number of parties and decrease the stability of the system.

All these variables must be taken into account in order to work out whether the majority will be able to guarantee a fair degree of stability and governability.

Participation on the rise in Italy

The good thing about italian elections is that the participation is always high (more than 80 %), and very high if compared with other countries such as Britain (a little more than 60 %).

The first data on the turn out of these two day elections are positive. In fact, according to official statistics the number of voters who have already expressed their preference is higher than before.

Even if participation is partly due to the polarized and tense atmosphere, it nonetheless remains an important ingredient of a well functioning democratic system.

I wonder whether it would be desirable to trade off participation with an anesthetyzed election, as it was the case for example in the last UK elections.

I have strong views on the lack of self-control of italian politicians, but equally I believe that passion should not be completely withdrawn. I guess the problem lies in passion for ideologies as opposed to passions for genuine ideals.

But even that line is very thin, and it is hard to keep things in order when passion is so overwhelmingly present, as it is the case in Italy.

In less than three hours, at 15.00 Rome time, the ballots will be closed and we will start having an impression of where the italian passion lies this time.

Italy is Voting

Italy is voting today and tomorro. Thank god, the political campaign is over.
It was messy and aggressive. Little has been discussed and many insults have been produced. It is sad.

Milan today was grey and quiet. When I went to vote, I saw the faces of people: they were worried and silent. Maybe that was just the weather. But, I think that there isn't much enthusiasm, neither for Berlusconi nor for Prodi.

Some fear a nil-nil. That would be awful; I don't think I could bear another campaign.

Tomorrow, starting from 15 p.m Rome time, the results will start to flow. I'll let you know then whether we woke up from our personal nightmare

The end of the Gaullist French fifth Republic is near

The fifth Republic, the actual French Constitution, was designed mostly by de Gaulle and for himself. The particular role played by the President of the Republic requires that the functions be exercised by an extraordinary person. De Gaulle was precisely that: the greatest war hero that France had known since Napoleon. He was a President with not only democratic but mostly historical legitimacy. This particular prestige enabled him to play the role of the President: the supreme guardian of the institutions, and to override the other institutions, including the Parliament, and address the people directly in times of important political choices. De Gaulle worried about what would happen once he was gone, he feared no one after him could summon the type of legitimacy required to be President. That is how he justified the revision of the Constitution in 1962 which organizes the direct election of the President by the people instead of the Parliament. In 1969, when he felt that he no longer had the trust of the nation he stepped down and resigned.

Since then many people have waited for the fifth Republic to crumble. Pompidou, de Gaulle’s successor, died 5 years after his election, Giscard was the only President who was not re-elected after a first mandate; he stayed only seven year. More serious problems appeared with Mitterrand who stayed in office 14 long years. However his reign didn’t jeopardise the institutions, amongst other reasons it may be due to his charisma and intelligence. However everyone after him agreed that 14 years was to long and, once he was elected for the first time, Chirac shortened to 5 years each presidential mandate.

Then Chirac was elected a second time and 4 years latter there is little doubt that the fifth Republic will change profoundly very shortly. In terms of constitutional tradition the last couple of months have been unorthodox to say the least. Actually, it had started before that. Concerning internal affairs, Chirac will go down in history as the less “Gaullist” President of all time: he was refused popular support in direct and clear fashion more than any other President in the history of the country loosing Parliamentary, regional and European elections followed by failed referendums. Yet he always stayed in office gathering with each defeat more and more resentment. This situation can explain the recent turn of events following the great student protests of the last few months.

Seeing as there was no political leadership – with Villepin refusing to discuss any important modifications of his bill on the CPE – people, from right and left, turned massively to the Constitutional Court to solve the situation. If the bill had been found unconstitutional everyone in the political class would’ve been content: the Prime Minister wouldn’t have had to back down and would’ve still escaped the head-lock of the students. The left-wing opposition would have bragged about how it had initiated the decision by asking the Court to judge the bill. Fortunately the Constitutional Court refused to take the political responsibility which belongs to the President, the Prime Minister and the Parliamentary majority.

As that trick didn’t work, the President and the Prime minister tried and another one: the bill was promulgated but Chirac demanded that it’d not be applied. That trick is nothing more than a childish play on words. The message intended is: we didn’t loose but the students on strike won. In other words: everyone won. Unfortunately it is now clear that the Prime Minister and the President surely lost as their bill will not produce any legal consequences.

The third trick they found was to hand the political responsibility on that case over to Sarkozy, the leader of the political majority and minister of Interior. We now have a President who is useless as he won’t leave office but won’t take any political responsibility either; we have a useless Prime minister who can’t take any political responsibility anymore because the students and Unions won’t deal with a man they judge to be too stubborn. And finally we have their most hated enemy, Sarkozy, who is taking the political responsibility and looking for a compromise with the students although it isn’t his prerogative as the Minister of Interior.

The institutions are bound to change; it will surely be one of the major themes of the next presidential elections (listen to Olivier Duhamel's "chronique" on "Les matins de France Culture" on that subject.)

The John Stuart Mill Bicentennial Conference

Just a reminder for those of you who are interested in John Stuart Mill.
This week, the Bentham Project, UCL, London, hosts a very interesting conference on the great british philosopher. Here you find all information.

I will present a paper on JS Mill and the Right to Privacy, which I will post on this weblog after the conference.

The Unbearable Lightness of Being Berlusconi

Ok, I give up. Italy is the land of Pinocchio, and nothing straight can be found in such a crooked timber.

Berlusconi by now should have a nose that goes around the globe three times and comes back to Italy, just in time for the elections.

His last original boutade is that in a sleepless night, he phoned Hot Lines, or Porn Lines, whatever you call it, just to ask the ladies whether they prefer Prodi or Berlusconi.

Needless to say, those charming ladies voted for Berlusconi, 7 out of 10.

This piece of information is obviously false. But it obviously achieves the result of focusing all the talk on the person of Berlusconi, transforming once more the elections into a referendum in favour or against Berlusconi.

I think that we should vote against him, precisely because national elections should never be referendum on a person. Italy does not need an egocentric puppet that constantly begs for attention.

Tonight, we'll have the second, and last, televised debate. Instead of discussing policies, I am ready to bet that Berlusconi will hammer into our heads his image of italian latin lover, with a taste for tastelessness.