The Greatest Alibi: Serbian Radical Party

Recent opinion polls in Serbia demonstrate a sharp rise of the populist, ex-Milosevic ally, Serbian Radical Party. To be more precise, the popularity of all major parties is in decline (including the Radicals), why Radicals demonstrate growth is because they have a more disciplined base that is less likely to abstain on future parliamentary elections, and an increasing number of the Serbs who is pro-European oriented, who decide to abstain.

A recent article in the Serbian daily Blic tries to offer an answer to such political situation in Serbia. Answering the question, I paraphrase, why do Serbian voters have enough, Slobodan Martinovic says,

“Because the democratic block of parties in Serbia demonstrated that power serves only for fulfilling their own personal needs: employment, personal wealth etc. In one word: Pure egoism. Me and once again me.

Because the political elite has no vision of the future, no courage and honesty to face the major problems in the country.

Because everything is the same as before 5^th October [5/10/2000 The downfall of Milosevic] Who was powerful then, still is, who employed its children then, still does, who was unemployed then, is unemployed now.

Because they were not honest in their intention to create a normal and stable country. Everything around here is pure improvisation.

Because my friends with whom I fought for a better tomorrow betrayed me. They needed me only in order to come to power, then they forgot me.”

This emotional account to a large extent describes the frustration of many of the Serbian voters. It can be even provocatively argued that the Serbian Radical Party presents the greatest possible alibi for the largest part of the block of pro-European parties in Serbia. Now they can at least say, vote for us, because if you do not or if you abstain Radicals will win. Without the populist, chauvinist and corrupt, ex-Milosevic ally, Serbian Radical Party they would have no excuse any more they would have to explain what they did to assure Serbia’s speedy integration into the EU. They, with no exception, would have a hard job explaining their positive role.

Election Year Politics, American Style

It is only June, but American politicians are already acting with an eye to November’s mid-term elections. Everyone knows that looming elections can cause funny behaviour in American politicians, but Presidential and Congressional conduct has been bizarre even by American standards this year. Take, for example, President Bush’s recent re-discovery of a favourite issue of social conservatives, a push to amend the U.S. constitution to ban same-sex marriages. The measure, which Republican leaders have periodically resurrected over the last few years whenever they feel the need to reinforce their standing with social conservatives, has no chance of gaining the necessary two-thirds majority in the House and Senate and then approval by three-quarters of the states. After a series of speeches to generate sufficient press coverage and mollify social conservatives, Republican leaders will surely abandon the issue until the next time they need to rally their base. Seeking to rally liberal opposition to the measure in his bid for the Democrats 2008 Presidential nomination, Senator Russ Feingold stormed theatrically out of a Senate Judiciary Committee meeting last month after scolding Committee chairman Arlen Specter. A similar issue that commands broader support is the proposed amendment, recently approved by the Senate’s Judiciary Committee, to protect the American flag from “desecration.” Even some members of the Democratic Party, who can usually be depended upon to oppose such silliness, have supported the idea, eager to shed the image of Democrats as out of touch with mainstream Americans. Democratic Senator Dianne Feinstein supported the measure, and Democratic Senator Hillary Clinton recently co-sponsored a similar measure. Congressional debate regarding more vital issues has been no less circus-like. The issue that seems to elicit the most concern from voters centers on so-called “border security,” with most conservatives advocating harsh treatment for illegal immigrants and complicit American employers Many others support more moderate measures, like various amnesty plans that would provided paths to citizenship for many illegal immigrants. However, even these moderate plans have ridiculous elements to them, like President Bush’s call for stationing 6,000 National Guard troops along the U.S.-Mexican border, an absolutely useless - but not costless - gesture. The apex of this silliness came in April when the Senate voted to divert $2 billion from funding for operations in Iraq to programs concerned with halting illegal immigration. There are no coherent proposals on how to use this money, but in an election year, it is the gesture that counts. Iraq was the focus of perhaps the weirdest Congressional spectacle, recent non-binding votes in the House and Senate engineered by Republican leaders that rejected any sort of timetable for withdrawing American troops from Iraq. While these votes were relatively harmless wastes of time and money designed solely to embarrass Democrats, more troubling is the decision, yet again, to fund operations in Iraq “off-budget.” This accounting manoeuvre, which in effect allows Congress to write a massive check but to defer payment to a later date, is becoming habitual with Congress and highlights the growing budgetary problems the U.S. faces. Despite this extensive list of political absurdity, the idealist within me demands that I end with a tribute to a politician who appears to take the idea of public service somewhat seriously. Arlen Specter, the senior Republican Senator from Pennsylvania, has embarked on a lone, quixotic crusade to force the Bush administration to publicly explain their Orwellian domestic surveillance program. Americans seem largely unconcerned or unaware of this program – the Bush administration’s claim that is it necessary to “fight terrorism” has been, once again, sufficient to extinguish latent Congressional and press criticism. This endeavour is not earning him points with conservatives, but it is heart-warming to see at least one politician determined to serve the public interest, even in an election year.

The King of Italy aka the King of the Banana Republic

Emanuele di Savoia left Italy just after the WW2. Italy opted then for the Republic and sent the King away.

Two years ago, thanks to Berlusconi, the ex-King of Italy was allowed to come back.
Today, he is in prison. Perhaps this shows that no matter what you do, or who you are, corruption is endemic in Italy when you have the right (wrong?) connections.

Le Roi est mort...Vive la Republique

New Ranking of UK Law Schools

Just published on the Times Good Universities.
Have a look here

Interestingly 5 Scottish law schools made it to the best 20. Aberdeen Law School, my place, is number 5, just after Cambridge, Oxford, LSE and UCL.

Tension between US and Italy regarding unresolved Calipari Case

The new Italian government pretends more collaboration from the US as regards the mysterious case of Nicola Calipari, shot in Iraq by American soldiers.

D'Alema will meet Condi Rice to discuss about this issue soon. The Corriere della Sera reports that: "At the present time, Lozano is accused of attempted murder without specific aggravating circumstances. In the charges filed, the public prosecutors underline “the conclusions of the experts and the detailed report from which it emerges that the vehicle was moving at a fitting (permitted and suitable –Ed.) speed for the area and in any case not in a manner that could be perceived as “hostile”, and that the said vehicle should be fired upon, which reconstruction shows occurred at the same time the target was illuminated, not only exceeds the rules of engagement, but goes far beyond them”. The magistrates further underline that “no evidence has emerged in support of the putative justification for the incident, based on excusable error (illegitimate use of weapons or legitimate defence), that could led to a ruling that there are no grounds for action”.

The Age of Penelope: Sicily 2006

-Do you see the graffiti of the obscenity (male reproductive organ) on the bus next to us-asks the old man sitting in the Public Transportation bus of the Municipality of Siracuse, Sicily.

-Yes-responds a confused tourist.

-It is not some hooligans who are doing this, it is the actual bus-drivers-claims the old man.

-Do you know who is Penelope?-asks the old man.

-No-responds a confused and by now embarrassed tourist.

-My god!-cries the old man and then engages in a lengthy explanation-Penelope is the wife of Ulysses from the Greek mythology. Ulysses and Penelope lived together in a marriage for more than a year when it was interrupted by the Trojan war, to which Ulysses had to go. During his long absence, and when it was doubtful whether he still lived, and highly improbable that he would ever return, Penelope was importuned by numerous suitors, from whom there seemed no refuge but in choosing one of them for her husband. Penelope, however, employed every art to gain time, still hopping for Ulysses' return. The most famous of her arts of delay was engaging in the preparation of a robe for the funeral canopy of her husband's father. She pledged herself to make her choice among the suitors when the robe was finished. During the day she worked at the robe, but in the night she undid the work of the day. This is the famous Penelope's web, which is used as a proverbial expression for anything which is perpetually doing but never done. You see, in this way the bus drivers from Syracuse drive the buses during the day and during the night draw reproductive organs on them. In this way they can claim funds for the refurbishment of the buses, and where there are funds (structural funds from the EU or funds coming from the Italian government) there is spillover of some of the funds to the private pockets.

-Really?-asks the doubtful and confused tourist.

-Yes. It is like this in Sicily for ages, they build motorways that lead to nowhere, the railways system is in shambles and the state is nowhere to be found. This is why I left for Venezuela-says the old man.

-And what did you do there?-asks the tourist, himself coming from a country bearing many similarities with Sicily, apart from having the sea, maybe only in the metaphorical sense.

-Well I am a tailor and I went there to develop my business.

-And did you succeed?

-No not really, everyone there, at least in the part of the country where I lived, goes around half naked, there is very little work for tailors, so I returned.

The tourists gets off the bus and stops over to by a pizza. In Sicily everyone talks to you, this is a rather pleasant surprise and probably difficult to cope with for many tourists coming from other colder places. Talking with the young owners of the pizza take away place the tourists found out that the pizza owners are locals from Syracuse but that they emigrated to the North of Italy couple of years ago. They, especially the husband, loved living in the colder but richer and much more organized north, then, as the husband put it, “a misfortune” happened to them and they had to return. The wife explains that the “misfortune” was actually that she got pregnant so because of financial difficulties that the pregnancy entails they had to return to the niche of their parents home.

Walking around Syracuse the tourists also met rich people, saw many empty houses and found out that citizens from more prosperous EU states are buying of property in the town. They were also told that all the houses have to be restructured in a particular fashion and that this job (polishing the particular type of stone used to build the houses in Syracuse) is being conducted by an expert old man, and that there is only one still living in the town, he charges 500 Euros a day. The tourist thought, he must work very slowly, because he is old to be clear not for other reasons, a more cynical tourist of the two thinks that maybe he employs Penelope's strategy.

Slightly, to the north of Syracuse, in Catania, the tourists engage in looking at the walls of the city. They see the graffiti saying, “the throbbing youth carves up the river of uncertain hopes” (la gioventu’ pulsante scolpisce il fiume delle speranze incerte).They also see a hand made newspaper exposing an allegedly corrupt policeman, they were particularly struck by the following sentence, “all the varnish in the world could never hide the rust on your medals-you fucking Mafioso”. At the end they look at Etna, they do not manage to see it because of the clouds, but to compensate go and listen the poetry of a young and beautiful Tuscan visiting Sicily and writing about Etna, “smoke and fog, hell becoming paradise” (fumo e nebbia, un inferno diventa il paradiso). The tourists get drunk with the Tuscan poet…

-history of the human race is a spit in comparison to the ocean of time. The well being of the Earth and nature should come first and only then the well being of the human race, this is what I was listening, this is what the lava was telling to me, when walking around the rocks of what ones used to be lava-says the tourist who thinks he is really intelligent and who discovers his leanings towards the philosophy of the radical greens.

The young Tuscan poet does not listen to him she repeats in her head, “fumo e nebbia, un inferno diventa il paradise… fumo e nebbia, un inferno diventa il paradise…” The drunk tourist stares at the poet realizing that she in fact bares striking resemblance with Carmen Consoli, or at least how he imagines Carmen Consoli to be, when he looks at the Tuscan poet he feels the energy from Carmen’s songs and he is in love...with the Tuscan poet, not Carmen Consoli, and he is in love with Sicily. The tourist that is.

Lords reject civil torture claim

I called this one wrong. The recent (2004) Court of Appeal judgment in Jones v. The Ministry of the Interior Al-Mamlaka Al-Arabiya as Saudiya (The Kingdom of Saudi Arabia) has been overturned on appeal by the law lords. I have only had time to skim a couple of the judgments, but the crux of the matter seems to be that the Court of Appeal erred in interpreting Pinochet No. 3 as holding that the Torture Convention implied that acts it covered could never count as "official" for the purposes of state immunity. The relevant passage from Lord Bingham reads as follows (para. 19):

It is certainly true that in Pinochet (No 1) and Pinochet (No 3) certain members of the House held that acts of torture could not be functions of a head of state or governmental or official acts. I have some doubt about the value of the judgments in Pinochet (No 1) as precedent, save to the extent that they were adopted in Pinochet (No 3), since the earlier judgment was set aside, but references may readily be found in Pinochet (No 3): see, for example, p 205 (Lord Browne-Wilkinson, pp 261-262 (Lord Hutton). I would not question the correctness of the decision reached by the majority in Pinochet (No 3). But the case was categorically different from the present, since it concerned criminal proceedings falling squarely within the universal criminal jurisdiction mandated by the Torture Convention and did not fall within Part 1 of the 1978 Act. The essential ratio of the decision, as I understand it, was that international law could not without absurdity require criminal jurisdiction to be assumed and exercised where the Torture Convention conditions were satisfied and, at the same time, require immunity to be granted to those properly charged. The Torture Convention was the mainspring of the decision, and certain members of the House expressly accepted that the grant of immunity in civil proceedings was unaffected: see p 264 (Lord Hutton), p 278 (Lord Millett) and pp 280, 281, 287 (Lord Phillips of Worth Matravers). It is, I think, difficult to accept that torture cannot be a governmental or official act, since under article 1 of the Torture Convention torture must, to qualify as such, be inflicted by or with the connivance of a public official or other person acting in an official capacity. The claimants' argument encounters the difficulty that it is founded on the Torture Convention; but to bring themselves within the Torture Convention they must show that the torture was (to paraphrase the definition) official; yet they argue that the conduct was not official in order to defeat the claim to immunity.

The claim, then, is that the Pinochet judgment decided that the torture convention implied a specific exception to the rule of state immunity in criminal proceedings only; and the Court is unprepared to, as I suggested it might, turn back on the dicta of Lords Millet and Phillips (as Lord Phillips himself did in the Court of Appeal judgment) that the state, while not impleaded in criminal cases, is indirectly so in civil proceedings and as such immunity attaches to the latter.
On this point, Lord Bingham notes the "error" of the Court of Appeal

that a civil claim against an individual torturer did not indirectly implead the state in any more objectionable respect than a criminal prosecution. A state is not criminally responsible in international or English law, and therefore cannot be directly impleaded in criminal proceedings. The prosecution of a servant or agent for an act of torture within article 1 of the Torture Convention is founded on an express exception from the general rule of immunity. It is, however, clear that a civil action against individual torturers based on acts of official torture does indirectly implead the state since their acts are attributable to it. Were these claims against the individual defendants to proceed and be upheld, the interests of the Kingdom would be obviously affected, even though it is not a named party.

Much of the subsequent reasoning does seem persuasive from a legal point of view. Lord Bingham lists (paras. 24-27) four arguments from international law that, cumulatively, he believes to be irresitible:

1) Based on the Arrest Warrant decision of the ICJ (ICJ Rep 3 [2000]), which held that immunity rationae personae can be claimed for a serving foreign minister accused of crimes against humanity, it is clear that the international prohibition of such norms, "having the same standing as the prohibition of torture", does not override all other rules of international law, including those on state immunity. He also cites an unreported ICJ case, Democratic Republic of Congo v. Rwanda (3rd Feb 2006) as authority for the propostion that breach of a norm of jus cogens is not itself sufficient to create jurisdiction in national courts.

2) Article 14 of the Torture Convention does not create universal civil jurisdiction. Both Lords Bingham and Hoffman (paras. 20 and 56 respectively) note the "understanding" lodged by the US at the time of its ratification of the Torture Convention to the effect that "Article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in the territory under the jurisdiction of that State Party", which received no objection from other Parties. Even though this was twenty years ago, it is unlikely that the US will have changed its mind, or that a norm of custom to the contrary will have crystallised in the intervening period.

3) The UN Immunity Convention of 2004 (signed but not yet ratified by the UK, but still held to be "the most authoritative statement available on the current international understanding of the limits of state immunity in civil cases" - for an analysis, see here) makes no reference to an exception for torture or other jus cogens, a fact which is "wholly inimical to the claimants' contention" - also noting that many commentators have criticised the Convention and opposed ratification thereof on precisely these grounds.

4) There is no other evidence to suggest that states "have recognised or given effect to an obligation to exercise universal jurisdiction over claims arising from alleged nbreaches of peremptory norms of international law", and nor is there any doctrinal consensus on this matter.

Despite these persuasive contentions, however, I still have a lingering sense of incoherence between this judgment and that rendered in Pinochet No. 3; my own view is that the claim that the Torture Convention implied that acts of torture could not be considered "official" acts for the purposes of state immunity functioned as premise rather than dicta in at least some of the majority opinions - and this is the point on which this whole case has turned. The Law Lords here, however, have tried to separate the "essential ratio" of the earlier decision from what hey see as the dicta of some of the judges therein, as they are perfectly entitled to do. Given, however, the sheer volume of lengthy separate opinions in the case(s), and the mass of dicta that this inevitably contains, it is hard not to conclude that the Pinochet affair has left something of a jurisprudential mess.

This case goes at least some way to clearing that up. That judgment, we can now say with some confidence, should not be read as suggesting that the Torture Convention necessarily implied that acts of torture could not be "official" state acts; rather that they are official acts, but that it created a particular exception to the law of state immunity for criminal proceedings. Thus, Lord Bingham argues that (para. 30) although "A state can only act through its servants and agents; their official acts are acts of the state; and the state's immunity in respect of them is fundamental to the principle of state immunity", the international community has together recognised an exception to that principle, to be narrowly construed as applying to criminal proceedings only.

It could, of course, have been otherwise. The opposite position was defensible, as the Court of Appeal judgment shows, if the proposition that the Torture Convention had established that acts of torture could never be "official" state acts (relying on a distinction between "official capacity" and "official act" to overcome the contradiction that Lord Bingham alleges the claimants in this case are trapped by) were to be read as premise rather than dicta in the Pinochet judgment. As always in international law, it would be a mistake to look for purity in argument, that we should be compelled, rather than simply persuaded by the ratio of any decision. This being said, however, after my brief engagement with this judgment, it seems that the more persuasive legal reasons in terms of international law do indeed favour the decision reached by the Law Lords in this case. I thus recant my comments in the earlier post...

Compromising the EU policy of conditionality: Polish Catholic Right Wingers against sexual minorities and human rights

The current Polish government is leading increasingly intolerant policies towards sexual minorities. Recently officials of the government parties called for the banning of the Warsaw gay parade. Moreover, the Polish Minister of Education - Roman Giertych, (coming from radical right wing populist party - League of Polish Families) has dismissed director of Central Teachers Training Centre for publishing in Polish the Compass - Council of Europe manual on human rights education with young people. Minister claimed in public that he couldn’t accept that the Polish government spends money on Compass manual “promoting gay and lesbian behaviours”.

The reaction from the European Union was rather mild in comparison to the treatment of the Austrian extreme right-winger Heider. Silence coming from the other EU member states makes one wander up to what extent historical prejudices, and not the honest assessment of the nature of one’s politics, play the role in deciding on the treatment of right-wing populist parties.

More importantly, the case of Poland, and the mild reaction of other member states, directly compromise the EU enlargement and foreign policy. How can the EU pretend to demand from the hopeful candidates in Turkey and South Eastern Europe to respect its human rights standards when some of its own Member States (Poland) lag behind in this respect? Possibly, we are witnessing a certain shift in the lowest common denominator in the EU human rights standards?

There's spin, and then there's...

... well, this.

Guantanamo is becoming more and more of a problem for the US, with even the UK coming out with some increasingly strong condemnation of both its existence and the practices regularly used there. Acts that constitute, in the eyes of many, torture seem rife; not to mention the psychological hardhip of being imprisoned, for years, with little or no legal representation, no trial, and no charge.

Against the background of this rapidly rising levels of international condemnation, the reaction from Rear Admiral Harry Harris, the camp commander, to the co-ordinated suicides of three inmates in the prison is nothing short of astonishing: "They are smart. They are creative, they are committed" - "They have no regard for life, either ours or their own. I believe this was not an act of desperation, but an act of asymmetrical warfare waged against us".

The logic of this seems to be that the suicides are part of the propaganda war against the US - by bringing even more attention and criticism over Guatanamo, they harm the US cause in the War on Terror. It is atonishingly blinkered, even by the standards of what we've come to expect, and depends for any sort of persuasive force upon an absolute commitment to the justness of the US cause - to the extent that practically any means in pursuit thereof are justified. I refer the reader again to my earlier post on the similarities between US anti-terror rhetoric and the prescriptions of Mein Kampf. Mission accomplished, indeed.

Certainly, the suicides can be viewed as an attempt to put pressure on the US to end the widely-recognised gross abuse of human rights that is Guantanamo Bay, in much the same manner as the hunger strikes before it (in which the three men also took part); and, as such, it will have the sympathy of millions worldwide, regardless of the spin placed on it by the camp commander. Does he, I wonder, view Lord Goldsmith's recent very public criticism of Guantanamo as also "an act of asymmetrical warfare" waged against the US? You know, he probably does...

**UPDATE** Incredibly, it seems that this may well be the official Government line on the issue, with the Deputy Assistant Secretary of State for Public Diplomacy(a reasonably high-ranking official, I believe) now saying that the suicides are "a good PR move to draw attention", part of a strategy to "further the Jihadi cause". Words fail me; the US seems to be losing all touch with reality on this point, utterly unable to see anything beyond its own blinkered view of its national security. This is not a line that will go down well internationally, to say the least: highly public, but not really very diplomatic at all. See the BBC report here (lots of good links on this page too regarding Guantanamo in general, including an interview with a detainee).

A New Italian Renaissance

That's what I would call the post-Berlusconi period. Italy has a lot to do to catch up after 5 years of shadows. Economically, politically, culturally it is a bit of a wreck, but that is precisely why we all have to contribute to the Italian Renaissance.

I am optimist, and Italy could symbolically start with a vicory at the world cup!
Serbia & Montenegro, as Srdjan puts it, represents the hopes of the countries that are not there anymore. Italy represents the hope of the countries that are looking for a fresh start: A Renaissance.

Serbia and Montenegro: beware of the country that no longer exists

Serbia and Montenegro will still participate as a single state at the upcoming football World Cup in Germany 2006. Serbia and Montenegro has a solid team that ended up first in the qualifications round (in front of Spain). It is important to point out that they conceded only one goal in the entire process of qualifications. Moreover, for the first time in the last 20 years the coach of the ‘national’ team was successful in creating a magnificent team spirit among the players. Despite the fact that Serbia and Montenegro is playing in the so-called “death group” together with Argentina, Holland, Ivory Coast and despite the fact that bookies consider it a total outsider, the chances of this team are great.

Only once in its history Serbia and Montenegro(then Kingdom of Yugoslavia, comprising todays's independent states of Slovenia, Croatia, Bosnia, Macedonia) ended up in the World Cup semi finals (in the very first world cup held in Uruguay 1930). This time this is likely to happen. If not for the statistics and bookies previsions then for the shere fact of the romantics. The triumph of the paradox can take place in Germany. Can you imagine a non-existent country playing in the World Cup finals and possibly winning the Cup? If your team did not qualify, or if you do not have preference in terms of the national selection you would like to support, then you have an appealing option, support Serbia and Montenegro (support Yugoslavia), the country that no longer exists.

France and Germany: waiting for Europe

Chirac and Merkl met today to discuss about the future of Europe (laughter). France and Germany would like to re-launch the constitutional process (laughter). This is not the Comedy of Errors, it's the tragic reality facing Europe.

As long as there are leaders like Chirac around, there is little to be hoped for Europe. Chirac was the major loser of the French Referendum on the European Constitution last year? Why is he still there? What does he have to say about Europe?

Even for someone who teaches and follows European law and politics, it is hard to claim that Europe is well and alive. We need a more drastic European discourse, and new faces to represent it.

The next European Council will gather on 15 and 16 of June. Will it be able to raise its voice?

Constitutional Dilemmas

Law is meant to solve conflicts between competing claims. Constitutional Rights are normally considered to be a very efficient tool to achieve that aim.

What if, however, constitutional rights conflict one against another and it is impossible to compare their strength, or to rank them?

This is the object of my forthcoming book with OUP titled Constitutional Dilemmas. Conflict of Fundamental Legal Rights in Europe and the USA. You can learn more about it here

The Rhetorical Steps to War (4)

Tony Blair is seeking the benediction of Benedict.

What for? 'In Mr Blair's last papal audience on the eve of the invasion of Iraq, he explained to the late Pope John Paul II the reasons why he thought a military attack on Saddam Hussein would be morally justified.'

Are we on the eve of the invasion of Iran? The parallel is there for everyone to see and assess. I am only drawing your attention to this fact.

Interviews for the Italian Radio

Recently I gave two interviews for the Italian radio Nova on the question of Ratko Mladic, indicted for war crimes in the ICTY and on the question of independence of Motenegro. Both interviews can be downloaded from the internet. The interview on Mladic, under the title “Radio Senza Frontiere_puntata n. 9” (click on parte2) and the interview on Montenegro under the title, “Nuovi confini nei Balcani: il referendum del 21 maggio visto dal Montenegro e dalla Serbia”.