Category: Law & Justice

The Unrepentant And Unreformed Bankers

By Phil Angelides

Money laundering. Price fixing. Bid rigging. Securities fraud. Talking about the mob? No, unfortunately. Wall Street.

These days, the business sections of newspapers read like rap sheets. GE Capital, JPMorgan Chase, UBS, Wells Fargo and Bank of America [2] tied to a bid-rigging scheme to bilk cities and towns out of interest earnings. ING Direct , HSBC and Standard Chartered Bank  facing charges of money laundering. Barclays caught manipulating a key interest rate, costing savers and investors dearly, with a raft of other big banks also under investigation. Not to speak of the unprecedented wrongdoing that precipitated the financial crisis of 2008.

Evidence gathered by the Financial Crisis Inquiry Commission clearly demonstrated that the financial crisis was avoidable and due, in no small part, to recklessness and ethical breaches on Wall Street. Yet, it’s clear that the unrepentant and the unreformed are still all too present within our banking system.

A June survey of 500 senior financial services executives in the United States and Britain turned up stunning results. Some 24 percent said that they believed that financial services professionals may need to engage in illegal or unethical conduct to succeed, 26 percent said that they had observed or had firsthand knowledge of wrongdoing in the workplace, and 16 percent said they would engage in insider trading if they could get away with it.

That too much of Wall Street remains unchanged is not surprising. Simply stated, the banks and their leaders have paid no real economic, legal or political price for their wrongdoing and thus have not felt compelled to change.

On the economic front, the financial sector has rebounded nicely from its brush with death, thanks to an enormous taxpayer bailout. By 2010, compensation at publicly traded Wall Street firms had hit a record $135 billion.

Last year, the profits of the nation’s five biggest banks exceeded $51 billion, with their chief executives all enjoying pay increases. By 2011, the 10 biggest U.S. banks held 77 percent of the nation’s banking assets.

On the legal front, enforcement has been woefully inadequate. Federal criminal financial fraud prosecutions have fallen to a two-decade low. Violations are settled for pennies on the dollar – the mere cost of doing business, with no admission of wrongdoing and with the bill invariably picked up by insurers or shareholders. (When it’s shareholders, that’s not someone else far away, that’s your 401(k), pension fund or mutual fund.)

When Goldman Sachs was charged with failing to set policies to prevent insider trading, it was fined $22 million, an amount the bank collects in about seven hours of trading. Goldman’s record $550 million penalty for securities fraud in 2010 amounted to less than 2 percent of that year’s revenue.

On the political front, after a brief stint in the penalty box, the big banks have resumed the political muscling that got them two decades of deregulation.

To block reform, the financial industry has spent more than $317 million on lobbying in Washington over the past two years and more than $230 million in federal political contributions in the 2010 and 2012 election cycles.

It’s been to good effect. Two-thirds of the regulations called for in the financial reform law passed two years ago are still not in place. And the House Republicans, the banks’ sturdiest allies, have slashed at the budgets of the Securities and Exchange Commission and theCommodities Futures Trading Commission to impede their ability to investigate wrongdoing.

Clearly, the present order is unsustainable. We need to demand fundamental changes now, breaking up the big banks to snap their stranglehold on our markets and our democracy, ensuring that the newly minted financial reform laws are implemented, and wringing out rampant speculation.

But true reform can only occur if we root out the corruption that has distorted our banking system and undermined the productive work of the many good people in the financial sector.

The system of financial law enforcement is clearly broken. Think of it this way: If someone robbed a 7-Eleven of $1,000 but could settle a few days later for $25 and no admission of guilt, would they do it again?

Only enforcement with real consequences will work. That means vigorous pursuit of criminal cases against individuals involved in wrongdoing, the surest method to deter malfeasance.

It means enforcement agencies eschewing weak settlements in civil cases and seeking remedies with teeth such as civil penalties, restitution and executives forfeiting their jobs. And, it means tougher financial fraud laws. In that regard, the bipartisan proposal by Sens. Jack Reed, D-R.I., and Charles Grassley, R-Iowa, to increase fines for securities fraud is a place to start.

To make any of this a reality, the U.S. Department of Justice and the federal regulators must have the will and the resources to do the job. President Obama has asked for additional funds for the Department of Justice, the SEC and the Commodities Futures Trading Commission.

Giving these agencies the tools to detect and prosecute wrongdoing will more than pay for itself – the Commodities Futures Trading Commission’s fine against Barclays for interest rate manipulation alone will pay for almost an entire year of that agency’s budget.

None of these changes will come easily, but this much is clear: We cannot allow Wall Street to continually flout our sense of right and wrong, to erode faith in our legal and political systems, and to put our financial system and economy in jeopardy.

Originally published in The San Francisco Chronicle.

Strange bedfellows: Julian Assange and Ecuador

by Erin Fitz-Henry

Julian Assange’s appearance on the balcony of the Ecuadorian embassy in London to hold forth on his current situation, and President Obama, added a bizarre new chapter to the long-running Wikileaks saga.

It remains to be seen whether Assange will indeed be able to take up asylum in Ecuador as British police maintain they will arrest him as soon as he leaves the Ecuadorian embassy, and may even move to seize him inside the building.

But how is it that Assange has come to see a small South American country as his saviour? And what does Ecuador have to gain from confronting the UK, and by extension the US, over Assange?

A new South American reality

On Saturday, August 18th, the socialist and social-democratic leaders of ALBA (The Bolivarian Alliance for the Peoples of Our America) convened in the coastal city of Guayaquil, Ecuador to debate whether and how to support Ecuador’s decision to grant asylum to WikiLeaks editor, Julian Assange.

The decision? Perhaps not surprisingly, a full-scale denunciation of the threats by the United Kingdom to “storm” the Ecuadorian embassy if Assange were not released and a renewed commitment to honouring Ecuadorian sovereignty and international law. As representative after representative underscored, Latin America will no longer tolerate the “colonial” incursions of either the UK or the United States, the latter of which is seen by growing numbers in the region to be ultimately behind the most recent “witchhunt” against Assange.

As Minister of Foreign Affairs, Ricardo Patino, put it with characteristic bluntness on August 15th:

“Colonial times are over, but through its behaviour, the United Kingdom and its allies have shown they retain the same imperial condescension toward the ideals of liberal governance and the rule of law that they have held in the past, applying or discarding them whenever it’s convenient…The fact that such a mentality exists at the highest levels of government shows why people like Julian Assange are necessary to keep official excesses in check – and why people like him are so ruthlessly pursued when they speak out.”

By late in the weekend of 18-19 August, the “anti-colonial,” “pro-sovereignty” rallying cry of the Correa administration seemed only to be growing in force – as supporters descended on the embassy in Quito and Evo Morales of neighboring Bolivia underscored that it was not just Ecuador’s sovereignty, but that of the whole region that was at stake: “Britain … is wrong,” he said decisively on Friday, August 15th: “The threat is not only an aggression to Ecuador, it’s against Bolivia, it’s against South America, against the whole of Latin America.”

 

The banana republic mistake

For observers unfamiliar with Ecuadorian politics, the investment of this small Andean country in the well-being and safe passage of an Australian national wanted by the United States, the UK, and Sweden for crimes ranging from attacks on national security via the release of classified State Department documents to sexual assault, seems baffling at best and little more than outdated, “banana-republic” hyperbole at worst.

After all, with important trade relations with the UK and the U.S. hanging in the balance, there is apparently far more to lose than to gain – especially when the actual extradition of Assange is not only unlikely, but near-impossible.

To most observers, it seems that Correa is engaged in a kind of political grandstanding – more symbolic than pragmatic – that will likely consolidate his bid for re-election in early 2013 and position him squarely as a charismatic, front-line participant in the “Bolivarian Revolution.”

While in recent years Hugo Chavez and Evo Morales have occupied international center-stage as the outspoken leaders of the “Bolivarian revolution” – engaging in sweeping reforms that include the nationalization of formerly foreign-dominated industries, the institutionalization of broad-ranging social welfare programs that target the poorest of the poor, and the re-writing of national constitutions to ensure novel sets of indigenous and environmental rights, it may be that Rafael Correa is now making a play for greater visibility as a new kind of leader of the global Left.

The new socialism

At a time when the regional turn toward “the socialism of the 21st century” is increasingly volatile (since the administration is alienating large segments of its indigenous constituency by opening the country to large-scale mining and other extractive projects in partnership with the Chinese – who, perhaps not incidentally, nominated Assange for the Nobel Peace Prize in 2010), there is a need for precisely the sort of anti-colonial, anti-imperial rallying cry that brought Correa so decisively into office in 2007.

A protestor outside the Ecuadorean embassy in London. EPA/Karel Prinsloo

 

For some on the ground in Ecuador, however, the ironies surrounding this power play are great. While the country has been exalted from afar for its radical environmental rights legislation, and it is unquestionable that it has achieved impressive gains in fighting illiteracy, improving access to primary school, and increasing cash transfers to single women and low-income families, the administration that now claims to be defending Assange on the grounds of protecting “freedom of the press,” has been involved in repeated and aggressive attacks on its own national media.

As highlighted by groups like Human Rights Watch and the Inter-American Commission on Human Rights, Correa has gone violently after mainstream newspapers, like the Guayaquil-based El Universo, whose opinion editor was sued by the administration in 2011 for defamation of character and subsequently sentenced to 3 years in prison and a $40 million dollar fine (subsequently rescinded).

While such ironies anger those who are losing faith in “the citizen’s revolution” overseen by Correa’s Alianza Pais, it should not be forgotten that Correa has good reason to both fear the duplicities of the United States and to support those – anywhere, of any nationality – who seek to expose them.

For more than four years after the signing of the agreement for the U.S. military base in Manta in 1999, the U.S. military allegedly sunk eight Ecuadorian-flagged fishing vessels in Ecuadorian territorial waters in flagrant violation of the terms of the agreement. In 2008, when Colombian forces violated Ecuadorian sovereignty by killing Raul Reyes – a lead commander of the Revolutionary Armed Forces of Colombia (FARC) – in the northern province of Sucumbios, it was believed that they had done so with information provided by the U.S. government. And as Correa himself recognises, the U.S. has for a long time been actively funding anti-progressive police forces within the country.

Since he took office in 2007, he has worked hard to eradicate such influence from Ecuadorian politics – and as a result, he is perhaps excessively sympathetic to the sorts of revelations made public by Julian Assange.

While the desire to step into a clearly defined leadership position within the Bolivarian Revolution is doubtless at play here, there is also no reason to doubt Correa’s well-founded concerns about the assaults on Ecuadorian sovereignty in which the U.S. has long been engaged.

Erin Fitz-Henry is a Lecturer in Anthropology at the University of Melbourne. Her current research focuses on the rights of nature in Ecuador. She teaches courses in political anthropology, the anthropology of religion, and development studies.

This article was originally published at “http://theconversation.edu.au”

The Far Right Takes Root in Europe

by Mariano Aguirre
 
Anders Behring Breivik’s attacks are part of a worrying trend in Europe: the far right’s rise within mainstream politics.

 
The bloodthirsty attacks perpetrated by Anders Behring Breivik in Norway on July 22 last year (leaving 77 dead) provided a brutal awakening for all those in Europe who had been passively observing the rise of the Islamophobic far right. As the trial opens, around thirty political parties that openly call for a “pure European identity” are effectively in the process of consolidating their parliamentary positions (occasionally even signing agreements with mainstream right wing parties, as is the case in the Netherlands), and are claiming an ever greater media presence.

 These parties, following the example of the Nordic Forum, are adept at using new technology and social networks, which gives them an even greater platform to spread their messages of hate and bolster their national and international alliances. 

Those responsible for this noxious propaganda always hide behind the principle of freedom of expression, and, when they are criticised for the speeches they deliver encouraging the Breiviks of the future, they assert that the carnage perpetrated by this “lone wolf” has nothing to do with the climate that they have helped to create. Indeed, they present themselves as victims that are being suppressed. They make out that Europe will ultimately lose its “Christian identity”. These demagogues are active both inside and outside the electoral system: just as they have an elected presence in the parliaments, on the other hand they endlessly criticise democracies, accusing them of being far too liberal on the issue of immigration.

The European far right is seduced by the fantasy of a “pure” Europe as opposed to a real Europe, which is in fact successfully diversified. Like Anders Behring Breivik, thousands of individuals that haunt websites and blogs (Gates of Vienna, Brussels Journal), organisations such as the English Defence League, Platform per Catalunya, or Militia Christi, as well as religious leaders are all actively preparing fertile ground for the growth of extremism. 

A study at the University of Nottingham undertaken for Chatham House by Matthew Goodwin demonstrates that extremist parties are primarily characterised by their visceral opposition to immigration (particularly Muslim immigration), to ethnic diversity, and finally to multiculturalism, alongside social behaviours that they consider to be a great danger to Europe. 

Further, they think that mainstream political parties are far too “soft” in their responses to the issues surrounding immigration. Another study, by Elisabeth Ivarsflaten , shows that populist parties have always had their greatest electoral successes after integrating a strong anti-immigration strand into their speeches and manifestos. 

These “new” populists carefully avoid the usual racist and anti-Semitic discourse, and prefer to position their stance more subtly, around questions of culture and identity. Paradoxically, they claim two conflicting identities: Christian through their recognition of a mythological European past, and secular in their fight against Islam. 

They fight “Marxist” politicians, or those that are too liberal. It’s with this in mind that Anders Behring Breivik attacked the government buildings in Oslo and subsequently the summer camp of young labour party activists on Utøya island. They are generally pro-American, have close working relationships with the far right in the United States, and consider Israel to be a defensive western bulwark against Islam. During times of crisis they also use the argument of the welfare state to justify themselves: they contend that immigrants are stealing jobs and scamming the welfare state, in particular social security, as they have many more children than the European average, and so on. 

In his manifesto – a vast copy and paste job of the greatest hits of extremist ideas – Anders Behring Breivik opposed the welfare state and a pluralistic hegemonic identity. “European societies” he wrote “must be able to rely on a solid social cohesion, which can only really exist in a monocultural system where everyone has complete confidence in one another.”

Goodwin’s study reveals that the majority of those who vote for populist parties come from a modest background or the middle classes. They are also often small business owners or farmers afraid of drastic economic and social change. “Market globalisation and economic deregulation have hurled the planet into an era of uncertainty which is inevitably provoking fear” reminds Javier de Lucas, professor at the University of Valencia. To this, the extreme right counters with a riposte made up of simplistic formulas, and lays responsibility for the all the economic and social woes on “the politicians”, “leftists” and immigrants. 

As the philosopher Slavoj Zizek concludes: “The only way to introduce passion into this kind of politics, the only way to actively mobilise people, is through fear: the fear of immigrants, the fear of crime…”

Timid counter-offensives 

Moderate politicians remain relatively impotent in the face of attacks from the far right, and when they attempt a riposte, they do so in a contradictory fashion: centre-left parties – to avoid losing a public that is sensitive to these issues – willingly revisit the pet subjects of the far right, in particular immigration. In fact, Europe is imposing ever more restrictive policies to limit the right to asylum and inward migratory flow, while at the same time political parties are lauding “greater tolerance” towards foreigners. The reality is that xenophobic sentiments are on the rise, and immigrant Muslim populations and their culture are being increasingly rejected. 

If Europe wants to sustain growth, then it will need to open the door wide to immigration. However, this argument does not succeed in halting the advance of Islamophobia. “There is something that worries me far more than the growth of the far right at the 2010 ballot, explains Thomas Hammarberg , Commissioner for Human Rights at the European Council:

“and that is the profound inertia and above all confusion that seems to reign amongst moderate democratic parties of both the left and right. One even has the impression that these parties have come to accept the narrative of hatred and that this unencumbered xenophobia has been integrated into the political discourse as though it were something quite ordinary: their leaders have totally failed to check this rise in Islamophobia.”

Leading media outlets have opened the debate, keeping centrally in their sights the fact that a major segment of their audience is sliding steadily, at least electorally speaking, towards the populist right. Meanwhile new ultra-nationalist media outlets are appearing on the media landscape, just as they have in the UnitedStates , along with thousands of websites and books, which for the most part, have been able to find a place in the unfolding discussions as though they were serious political institutions. 

It is thus that the British essayist Bat Yeor, using her real name Gisele Littman-Orebi, invented the famous Euro-Arabian axis (or Eurabia), abundantly referenced by Breivik in his manifesto, and in which Europe will sooner or later be conquered by Muslims. The author explains that Jews and Christians will be subjected to Islamic law. 

“Today, freedom of speech is complete and the essence of what is published is neither edited nor censored,” comments Sindre Bangstad, a teacher at the University of Oslo.

“Islamophobic discourse can spread much more easily than before. In this context, outlandish opinions like those held by Breivik are barely discernible from those found on some social networks, and sometimes even in the mainstream media in Norway…” 

Nevertheless, dangerous agitators are by no means all paranoid and bloodthirsty madmen. The highly respectable German social-democrat economist Thilo Sarrazin published a book in 2010 in which he very seriously explained that his country will become more and more impoverished and lose its identity as well as its potential, because Turkish and Arab immigrants possess a lower IQ. He maintains that his ideas are supported by a third of Germans who believe that the state should limit immigration and the practice of Islam. In October 2010 Angela Merkel declared, “Multiculturalism has failed”. David Cameron, the British Prime Minister, said exactly the same thing a few days later. In September 2011, the German National Democratic Party (NDP) gained 6% of the vote in the Mecklenburg-West Pomeranian parliament, an unprecedented result in that country. 

On the question of immigration, centre-left parties have two options: ‘integration’ or ‘assimilation’. The concept of assimilation has suffused political discourse since the 1980s: it suggests that immigrants must adapt to ‘our’ society and renounce all or part of their religion, culture or traditions. ‘Integration’, for its part, allows ‘new citizens’ to keep their idiosyncrasies, as have all prior immigrant groups for that matter. In its modern sense, integration expects a mutual attempt to adapt and notably, the acceptance of the welcoming country of the religion of those that it is seeking to welcome. 

Attempts to make religious symbols disappear from public spaces (minarets, burkhas, veils, mosques…) are more and more vocal, Olivier Roy noted in 2009 in ‘L’Islam en Europe, une religion qui doit être traitée comme les autres’, pointing out that Europe wanted to have immigrants working here, but wanted them to be invisible. 

In a general sense, both strategies have failed. Immigrant communities have more of a tendency to isolate themselves to avoid being assimilated. They often feel discriminated against, and the societies that are hosting them don’t feel the need to change anything at all to accommodate them since they consider the immigrants to be an undifferentiated and fragmented external group. In Germany, after forty years of communal living, Turkish and German populations still only know very little about each other. It’s a paradox.

Goodwin’s study has also dug up worrying results regarding the political response to the extreme right in general. Since political parties became ‘electoral machines’, populist parties have been fully exploiting their ability to directly address the electorate and respond to their concerns about immigration, which the other parties do not do. 

Are we ready to abandon our community-based approaches in order to adopt a multi-strand citizenry founded on fundamental shared norms and values? 

“European society in its plurality is collectively responsible,” explains Javier De Lucas. “We need to teach our societies to accept an evolution towards a multicultural world and to negotiate this change successfully. Unfortunately however, society is not moving. It is not very motivated, and very restrictive migratory politics are sending contrary signals: without negotiation, a desire to change, to evolve, the unilateral integration project of immigrant populations is doomed to fail.”

Mariano Aguirre is the director of the Norwegian Peacebuilding Centre (Noref) in Oslo

Translated by Tristan Summerscale. This article was originally published in French in Le Monde Diplomatique on March 10, 2012. 

 

The WikiLeaks War Logs Don’t Show Rare War Crimes–They Show The (Legal) Reality of War

by Chase Madar
 
The real problem with the laws of war is not what they fail to restrain but what they authorize.

Anyone who would like to witness a vivid example of modern warfare that adheres to the laws of war — that corpus of regulations developed painstakingly over centuries by jurists, humanitarians, and soldiers, a body of rules that is now an essential, institutionalized part of the U.S. armed forces and indeed all modern militaries — should simply click here and watch the video.

Wait a minute: that’s the WikiLeaks “Collateral Murder” video!  The gunsight view of an Apache helicopter opening fire from half a mile high on a crowd of Iraqis — a few armed men, but mostly unarmed civilians, including a couple of Reuters employees — as they unsuspectingly walked the streets of a Baghdad suburb one July day in 2007. 

Watch, if you can bear it, as the helicopter crew blows people away, killing at least a dozen of them, and taking good care to wipe out the wounded as they try to crawl to safety.  (You can also hear the helicopter crew making wisecracks throughout.) When a van comes on the scene to tend to the survivors, the Apache gunship opens fire on it too, killing a few more and wounding two small children.

The slaughter captured in this short film, the most virally sensational of WikiLeaks’ disclosures, was widely condemned as an atrocity worldwide, and many pundits quickly labeled it a “war crime” for good measure.

But was this massacre really a “war crime” — or just plain-old regular war?  The question is anything but a word-game. It is, in fact, far from clear that this act, though plainly atrocious and horrific, was a violation of the laws of war.  Some have argued that the slaughter, if legal, was therefore justified and, though certainly unfortunate, no big deal. But it is possible to draw a starkly different conclusion: that the “legality” of this act is an indictment of the laws of war as we know them.

The reaction of professional humanitarians to the gun-sight video was muted, to say the least.  The big three human rights organizations — Human Rights Watch (HRW), Amnesty International, and Human Rights First — responded not with position papers and furious press releases but with silence.  HRW omitted any mention of it in its report on human rights and war crimes in Iraq, published nearly a year after the video’s release.  Amnesty also kept mum.  Gabor Rona, legal director of Human Rights First, told me there wasn’t enough evidence to ascertain whether the laws of war had been violated, and that his organization had no Freedom of Information Act requests underway to uncover new evidence on the matter.

This collective non-response, it should be stressed, is not because these humanitarian groups, which do much valuable work, are cowardly or “sell-outs.”  The reason is: all three human rights groups, like human rights doctrine itself, are primarily concerned with questions of legality.  And quite simply, as atrocious as the event was, there was no clear violation of the laws of war to provide a toehold for the professional humanitarians.

The human rights industry is hardly alone in finding the event disturbing but in conformance with the laws of war.  As Professor Gary Solis, a leading expert and author of a standard text on those laws, told Scott Horton of Harper’s Magazine, “I believe it unlikely that a neutral and detached investigator would conclude that the helicopter personnel violated the laws of armed conflict.  Legal guilt does not always accompany innocent death.”  It bears noting that Gary Solis is no neocon ultra.  A scholar who has taught at the London School of Economics and Georgetown, he is the author of a standard textbook on the subject, and was an unflinching critic of the Bush-Cheney administration.

War and International “Humanitarian” Law

“International humanitarian law,” or IHL, is the trying-too-hard euphemism for the laws of war.  And as it happens, IHL turns out to be less concerned with restraining military violence than licensing it.  As applied to America’s recent wars, this body of law turns out to be wonderfully accommodating when it comes to the prerogatives of an occupying army.

Here’s another recent example of a wartime atrocity that is perfectly legal and not a war crime at all. Thanks to WikiLeaks’ Iraq War Logs, we now know about the commonplace torture practices employed by Iraqi jailers and interrogators during our invasion and occupation of that country.  We have clear U.S. military documentation of sexual torture, of amputated fingers and limbs, of beatings so severe they regularly resulted in death.

Surely standing by and taking careful notes while the Iraqi people you have supposedly liberated from tyranny are getting tortured, sometimes to death, is a violation of the laws of war.  After all, in 2005 General Peter Pace, then Chairman of the Joint Chiefs of Staff, publicly contradicted his boss Secretary of Defense Donald Rumsfeld by commenting into a live mike that it is “absolutely the responsibility of every American soldier to stop torture whenever and wherever they see it.” (A young private working in Army Intelligence named Bradley Manning, learning that a group of Iraqi civilians handing out pamphlets alleging government corruption had been detained by the Iraqi federal police, raised his concern with his commanding officer about their possible torture.  He was reportedly told him to shut up and get back to work helping the authorities find more detainees.)

As it turned out, General Pace’s exhortation was at odds with both official policy and law: Fragmentary Order 242, issued by Donald Rumsfeld’s Pentagon, made it official policy for occupying U.S. troops not to interfere with ongoing Iraqi torture.  And this, according to some experts, is no violation of the laws of war either. Prolix on the limits imposed on the acts of non-state fighters who are not part of modern armies, the Geneva Conventions are remarkably reticent on the duties of occupying armies.  

As Gary Solis pointed out to me, Common Article 1 of the Fourth Geneva Convention assigns only a vague obligation to “ensure respect” for prisoners handed over to a third party.  On the ground in either Iraq or Afghanistan, this string of words would prove a less-than-meaningful constraint.

Part of the problem is that the laws of war that aspire to restrain deadly force are often weakly enforced and routinely violated. Ethan McCord, the American soldier who saved the two wounded children from that van in the helicopter video, remembers one set of instructions he received from his battalion commander: “Anytime your convoy gets hit by an IED, I want 360 degree rotational fire.  You kill every [expletive] in the street!”  (“That order,” David Glazier, a jurist at the National Institute for Military Justice, told me, “is absolutely a war crime.”)  In other words, the rules of engagement that are supposed to constrain occupying troops in places like Afghanistan and Iraq are, according to many scholars and investigators, often belittled and ignored.

Legalized Atrocity

The real problem with the laws of war, however, is not what they fail to restrain but what they authorize.  The primary function of International Humanitarian Law is to legalize remarkable levels of “good” military violence that regularly kill and injure non-combatants.  IHL highlights a handful of key principles: the distinction between combatant and civilian, the obligation to use force only for military necessity, and the duty to jeopardize civilians only in proportion to the military value of a target.

Even when these principles are applied conscientiously — and often they aren’t — they still allow for remarkable levels of civilian carnage, which the Pentagon has long primly (and conveniently) referred to as “collateral damage,” as if it were a sad sideline in the prosecution of war.  And yet civilian deaths in modern war regularly are the central aspect of those wars, both statistically and in other ways.  Far from being universally proscribed, the killing of high numbers of civilians in a battle zone is often considered absolutely legal under those laws.  In the pungent phrase of Professor David Kennedy of Harvard Law School, “We should be clear — this bold new vocabulary beats ploughshares into swords as often as the reverse.”

The relative weakness of the laws of war when it comes to preventing atrocities is not simply some recent debasement perpetrated by neoconservative Visigoths.  Privileging the combatant and his (it’s usually “his”) prerogatives has been the historical bone marrow of those laws.  In the Vietnam War, for instance, the declaration of significant parts of the South Vietnamese countryside as “free-fire zones,” and the “carpet bombing” of rural areas by B-52s carrying massive payloads were also done under cover of the laws of war.

IHL has certainly changed in some respects.  A century ago, the discourse around the laws of war was far more candid than today.  Jurists once regularly referred to “non-uniformed unprivileged combatants” simply as “savages” and the consensus view in mainstream scholarly journals of international law was that a modern army could do whatever it wanted to such obstreperous, lawless people (especially, of course, in what was still then the colonial world).  On the whole, the history of IHL is a long record of codifying the privileges of the powerful against lesser threats like civilians and colonial subjects resisting invasion.

Even though the laws of war have usually been one more weapon of the strong against the weak, a great deal of their particular brand of legalism has seeped into antiwar discourse. One of the key talking points for many arguing against the invasion of Iraq was that it was illegal — and that was certainly true.  But was the failure to procure a permission slip from the United Nations really the main problem with this calamitous act of violence?  Would U.N. authorization really have redeemed any of it?  There is also a growing faith that war can be domesticated under a relatively new rubric, “humanitarian intervention,” which purports to apply military violence in precise and therapeutic dosages, all strictly governed by international humanitarian law.

Here is where the WikiLeaks disclosures were so revealing.  They remind us, once again, that the humanitarian dream of “clean warfare” — military violence that is smoothly regulated by laws that spare civilians — is usually a sick joke.  We need to wean ourselves from the false comfort that the law is always on the side of civilians.  We need to scrap our tendency to assume that international law is inherently virtuous, and that anything that shocks our conscience — that helicopter video or widespread torture in Iraq under the noses of U.S. soldiers — must be a violation of this system, rather than its logical and predictable consequence.

Let’s be clear: what killed the civilians walking the streets of Baghdad that day in 2007 was not “war crimes,” but war.  And that holds for so many thousands of other Afghan and Iraqi civilians killed by drone strikes, air strikes, night raids, convoys, and nervous checkpoint guards as well.

Regulatory Capture

Who, after all, writes the laws of war?  Just as the regulations that govern the pharmaceutical and airline industries are often gamed by large corporations with their phalanxes of lobbyists, the laws of war are also vulnerable to “regulatory capture” by the great powers under their supposed rule. Keep in mind, for instance, that the Pentagon employs 10,000 lawyers and that its junior partner in foreign policy making, the State Department, has a few hundred more.  Should we be surprised if in-house lawyers can sort out “legal” ways not to let those laws of war get in the way of the global ambitions of a superpower?

It’s only fair that the last words on the laws of war go to Private Bradley Manning, now sitting in a prison cell in Ft. Leavenworth, Kansas, awaiting court-martial for allegedly passing troves of classified material to WikiLeaks, documents that offer the unvarnished truth about the Afghan War, the Iraq War, and Guantánamo.  They are taken from the instant-message chatlogs he wrote under the handle of “bradass87” to the informant who turned him in.  The young private saw very clearly what so many professors and generals take pains to deny: that the primary function of the laws of war is not to restrain violence, but to justify it, often with the greatest lawyerly ingenuity.

(02:27:47 PM) bradass87: i mean, we’re better in some respects… we’re much more subtle… use a lot more words and legal techniques to legitimize everything…

(02:28:19 PM) bradass87: but just because something is more subtle, doesn’t make it right

 

Chase Madar, is the author of a new book, The Passion of Bradley Manning (OR Books), is a lawyer in New York.   Madar tweets @ChMadar
 
First published at AlterNet.org

The Precariat – The new dangerous class

by Guy Standing

For the first time in history, the mainstream left has no progressive agenda. It has forgotten a basic principle. Every progressive political movement has been built on the anger, needs and aspirations of the emerging major class. Today that class is the precariat.

So far, the precariat in Europe has been mostly engaged in EuroMayDay parades and loosely organised protests. But this is changing rapidly, as events in Spain and Greece are showing, following on the precariat-led uprisings in the middle-east. Remember that welfare states were built only when the working class mobilised through collective action to demand the relevant policies and institutions. The precariat is busy defining its demands.

The precariat has emerged from the liberalisation that underpinned globalisation. Politicians should beware. It is a new dangerous class, not yet what Karl Marx would have described as a class-for-itself, but a class-in-the-making, internally divided into angry and bitter factions.

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Progressing the Social Democratic Agenda