The end of Milosevic
On Thursday 6 October Yugoslav president Slobodan Milosevic stood down, having been defeated in the polls by rival Vojislav Kostunica, and challenged by a campaign of strikes and civil disobedience. Milosevic oversaw the destruction of Yugoslavia in his 12-year rule, with the secession of Slovenia and Croatia as well as the creation of United Nations' protectorates in Bosnia and Kosovo.
It was in Kosovo that the former Communist politician first played the nationalist card against the Albanian autonomy movement, and galvanised support from the republic's Serb majority. But the myth that Milosevic was a Balkan Machiavelli, fomenting wars to consolidate his power only makes sense if the role of the Western powers in the conflict is ignored. Much more so than Milosevic, it was the West that used the Yugoslav stage to pursue its own domestic agenda:
· First Germany promoted the secessionist movements in Slovenia and Croatia, elevating a local conflict into a bloody war. · Second US presidential candidate Bill Clinton used the three-cornered Bosnian conflict among Muslims, Croats and Serbs to paint republican incumbent George Bush as 'weak'. · Third British Prime Minister Tony Blair jumped on the conflict in Kosovo to promote his 'ethical foreign policy' (high-level aerial bombardment with cluster bombs).
Throughout the Balkan conflict, Milosevic played the fall guy for Western routines. Demonising the authoritarian regime was easy. Ironically, though, Milosevic has proved more dependent upon popular support than the dictatorships installed by the West in Kosovo and Bosnia. There is no danger that Civilian Administrator Bernard Kouchner or High Representative Wolfgang Petritsch will ever be voted out of office, since they were never elected.
Today opinion-makers in the West are celebrating Milosevic's downfall with near-desperate glee. They are replaying events as if they were the end of Communism in Eastern Europe, and Serbs were embracing Western ideals. Such displays of the superiority of the West are needed more and more by the exhausted political elites of Europe and America. But demonising leaders in Eastern Europe has been the organising principle of Western policy since the end of the Cold War. They will find it difficult to kick the habit.
Israel loses control
This week's violence in the Occupied Territories and behind the Green Line was bitter and intense even by the standards of the Israeli- Palestinian conflict, writes Nick Frayn.
With more than 70 Palestinian causalities to date, the conflict is shocking, even without the pictures of 12-year old Mohammed al-Durah, being shot to death by Israeli troops. The Western press has even had to drop its usual pro-Israeli bias as Israeli Defence Force tanks move into West Bank cities and Cobra attack helicopters shoot rockets and exploding machine-gun bullets at Gazan apartment blocks. As the fighting continues discussion about the 'end of the peace process' abounds and Kofi Annan has even talked of 'war'.
So what has been going on? The media told us it was a religious conflict. Palestinian youths were reacting to the violation of the Haraam al-Sharif by Ariel Sharon, Israeli right-winger notorious for his part in the 1982 invasion of Lebanon. Doubtless this was a great humiliation for Palestinians. And no doubt Sharon was keen to stir up trouble that he could use in his political rivalry with Ehud Barak and Benjamin Netanyahu. But his visit only provided the spark to the conflict that is written into the so-called peace process. The thorny issue of Jerusalem was left to the end in the final status talks, and last month President Clinton floated the possibility of joint sovereignty. Having secured Jerusalem by force of arms in 1967, the Israelis have effectively tried to do the same again in 2000 - with the opposite effect upon public opinion.
It would be difficult to argue that Arafat is really behind this week's events. At times the Palestinian Authority has undoubtedly lost control, even of its own men, and things have moved at a pace that has surprised almost everybody. The spontaneity and deep dissatisfaction behind the demonstrations should not be underestimated. But the fact remains that Fateh, lead by the iconic figure of their Chairman Arafat, still has strong mobilisational capabilities. But where Arafat created Palestinian nationalism by his independent struggle against a Western- backed Israel in 1968, in 2000 his principle demand is for Western intervention in the region. With Arafat supporting the proposed international investigation into killings, he is a more pliant ally than the unpredictable Israelis.
Despite all the talk it looks like Albright may well be able to bring the two leaderships back together and 'save the peace process from the brink of collapse'. The Clinton administration may still get the 'peacemakers' kudos they are looking for. Given that so far the Oslo Accords have meant seven years of humiliation and compromise for the Palestinians, as they negotiate the longest declaration of surrender in history, this often-discussed collapse would have to be welcomed. But in fact the rising scale of conflict is the necessary effect of the peace process, not its end.
For Israel the stakes are high. The Zionist regime is wholly dependent upon the West for financial and military support. But with new relations with Arab states like Syria, the US does not need its special alliance with Israel. The US is trying to pressure Israel to normalise its relations with its Arab neighbours. But Israel exists to make war on Arabs, which is its entire raison d'êtat. Every concession only calls into question Israel's existence, as the retreat from Southern Lebanon, where three Israeli Defence Force soldiers were seized by Hizbollah, demonstrates.
Analysis: The British Human Rights Act
By Peter Ray
Radio 4 anchorman John Humphreys recently repeated to Jack Straw the accusation that he is an illiberal Home Secretary more in the mould of Michael Howard than of Roy Jenkins. Straw's reply was that this could not be true because it was on his watch that the Human Rights Act had been passed and the European Convention on Human Rights (ECHR) incorporated into British law. When the Human Rights Act came into force last Monday it was indeed widely greeted as founding a new rights-based political culture in the UK. But it is very far from a liberalising measure; on the contrary, it is a significant component in the developing legal machinery of the new authoritarianism.
The Human Rights Act consolidates two related authoritarian trends in the British constitution. By incorporating the ECHR, the law is adapting to the preponderant influence of the state in the distribution of resources and the welfare of the population. The huge extent of state intervention in social life has eroded the credibility of the idea that rights are powers inherent in us as individuals antecedent to our engagement with politics and the state. The orthodox view today is that society is not constituted by a contract between individuals but that individuals are constituted by society. Thus the powers of the individual result entirely from the political process through which society is made and remade. The Human Rights Act completes the redefinition of rights as powers granted by the state to the individual.
However, at the same time as all rights are to be derived from social and political engagements, democracy is on the wane. As dispute between our elected representatives in parliament is depoliticised and reduced to the narrow technical issue of which party is the best administrator of the state, so the role of the judiciary has been increasingly politicised. The judges appear to be the only effective check on the power of an executive under little pressure from the party political process. The Human Rights Act institutionalises the judiciary's increasingly political role.
To grasp the substance of the Human Rights Act it is first necessary to look at its formal legal effects. The main changes introduced by the Human Rights Act are to permit people to invoke their rights under the ECHR in any legal proceedings in Britain brought against a public authority, and to oblige judges only to make decisions which are compatible with the Convention. This latter obligation necessarily entails that judges endeavour to interpret all existing law as compatible with the Convention. The Convention is in effect made into a higher order law to which all other laws must conform.
The ECHR protects, among others, the following rights:
Article 2: right to life Article 3: prohibition of torture Article 4: prohibition of slavery and forced labour Article 5: right to liberty and security Article 6: right to a fair trial Article 7: prohibition of retrospective legislation Article 8: right to private and family life Article 9: freedom of thought conscience and religion Article 10: freedom of expression Article 11: freedom of association
At first sight it might look like a carnival of the oppressed, but a cursory reading of the Convention ought to be enough to trigger doubts. Apart from Articles 2 and 6, the Convention rights are not absolute. Articles 4 and 5 permit of significant exceptions (convicted criminal offenders can be forced to work, 'unauthorised' immigrants can be detained), while Articles 2, 8, 9, 10, 11 cite a very wide range of 'legitimate aims', the pursuit of which permits the authorities to put restrictions on the proclaimed rights. Each of these latter articles grandly pronounces that everyone has the right to family life or freedom of expression, or whatever, and then a second paragraph follows which typically reads:
'No restrictions shall be placed upon the exercise of these rights other than such as are prescribed by law and are necessary in a democratic state in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.'
Plainly these exceptions are so wide as to swallow the purported right whole. But the problem is not just that the substantive effect of the Convention rights will be very restricted in practice. The concept of rights that are subject to limitations is about as meaningful as being a little bit pregnant. The European Court of Human Rights explained the limitations upon the Convention 'rights' in this way:
'inherent in the whole of the Convention is a search for the fair balance between the demands of the general interest of the community and the requirement of the protection of the individual's rights.' (Soering v United Kingdom (1989) 11 EHRR 439 at para 89)
This sounds eminently reasonable. But how is this fair balance achieved by the Convention? Each article effectively protects the individual's freedom on the condition that the exercise of that freedom does not offend against the individual's duty to the state to ensure the public safety, public order, health, morals, etc, as they are defined in law by the state. In other words, the freedoms pronounced in the Convention are not in truth freedoms to do something 'as of right'.
Although the Convention formally presumes that your proclaimed right should be protected unless a public authority can prove its case for limiting it, logically your duty to the state comes before your freedom. This is what Jack Straw really meant when he explained the effect of incorporating the Convention during the parliamentary debate. It will require, Straw said, 'a much clearer understanding among Britain's people and institutions that rights and responsibilities have properly to be balanced - freedoms by obligations and duties'. The 'proper balance' established by the Convention is that your rights are what are left to you once your obligations to the state have been satisfied.
Instead of 'natural rights' which belong to you as an individual and limit the power of the state, you will now be the bearer of 'human rights', which are privileges in the gift of the state, and limited by the power and interests of the state. A Convention or human right is the polar opposite of what a civil right used to be.
Academics and lawyers who support the Human Rights Act will tell you that the old 'negative' rights, or 'freedoms from' state power, and the individuals who enjoyed those rights, were mere social constructs, useful fictions. The liberal ideology of rights was a mask for the political domination of the capitalist exploiters, the only ones powerful enough to be able to act on or guarantee their right to free expression or liberty. For the marginalised and dispossessed only collective political action could achieve the real power for the individual that the old civil rights proclaimed formally. Modern entrenched human rights positively guaranteed by the Human Rights Act are just a recognition of the reality that social progress is only achieved by political means.
But even if this simplified story, with its vulgar Marxist disdain for liberty, were true, which it is not, it must still account for why, from now on, these political means are not to be democratic politics but submissions to a judge. Which brings us to the second tendency reinforced by the act: the decline of democracy.
Many critics have pointed out that the Human Rights Act represents an attack on the sovereignty of parliament. The reason for this, it is argued, is that the judges will now have to decide every dispute before them in accordance with the Convention. All existing laws must be interpreted as being compatible with the Convention. If the words of an existing act of parliament cannot be stretched so as to be compatible, then the judges must make a declaration of incompatibility, and parliament will institute a fast-track procedure to amend the offending law. The judiciary, it is argued, will be able to override the will of parliament.
In fact the Human Rights Act allows parliament to override the Convention by explicitly stating in a statute that it is not intended to be compatible. The direct effect of the Human Rights Act on parliamentary sovereignty is therefore mild by comparison with the 1972 European Communities Act which incorporated the legislation of the European Union's Council of Ministers into British law. Our elected representatives may not contradict EU law under any circumstances (short of leaving the EU). Of course in practice parliament is no more likely publicly to repudiate the Convention than it is to vote for leaving the EU. The sovereignty of parliament has long been little more than a formality, and the Human Rights Act merely ratifies this political reality.
It is this empty formality of parliamentary control over the executive that makes the politicisation of the judiciary necessary; but it is the elected executive not parliament that the judiciary will be asked to override. Over much of the terrain in which state and individual meet there is no substantial party political dispute. The advancing regulation of everyday life, the treatment of immigrants, the tightening of criminal procedures against defendants, censorship, etc - the only political dispute about these questions is who can be more restrictive. If a governing party is not to be made accountable politically for its decisions then it falls to the judiciary to maintain some kind of check on the decisions of ministers. And this is what the Human Rights Act permits them to do.
Traditionally the higher courts have been limited in their powers to declare as unlawful the act or failure to act of a government department. The words of the ECHR, however, necessitate a more interventionist approach. Where someone can show that her Convention right has been infringed by a decision of a public authority, that authority will have to prove three things: that it is pursuing one of the legitimate aims mentioned in the relevant article of the Convention; that the basis for that interference is to be found in a proper law; and finally that the contested decision is necessary or 'proportionate' to the achievement of the legitimate aim. If the public authority fails to prove these three then its decision will be unlawful.
When a judge considers all of these issues he will have to have regard to the brief and vague text of the Convention articles rather than the relatively exact and even long-winded words of a British statute or court precedent. The judge will have to decide the issue to hand by divining the intention of the Convention article rather than literally interpreting the words. The scope for judicial creativity is vast. The test of whether or not a decision is proportional to the aim of policy is especially political. Who is to say what is necessary or proportional to the achievement of a particular political end? A judge apparently, but this is without question a political judgement.
The result is that the judges will make policy. It is true of course that judges have always taken highly political decisions especially in judicial reviews. But in the past the scope for judicial policy-making was limited, and moreover these decisions could be, and were, widely criticised for being political judgements beyond the competence or constitutional authority of an unaccountable judge. Under the Human Rights Act however the judges will be expected to make such political decisions. The Human Rights Act legitimises and institutionalises a politicised judiciary.
Policy made by the judiciary against the executive is likely to be less accountable to the population as a whole. Decisions will tend to be influenced more by the exigencies of the moment, the political leaning of the particular judges, the resourcefulness of the particular interest groups which are represented in court, and the cogency of the lawyers who represent them; they will be less influenced by the broad political process engendered by representative democracy. The Human Rights Act creates a framework in which policy can be developed in a negotiation between civil servants on the one hand and NGOs, pressure groups and special interests on the other, a negotiation mediated by professional lawyers. The influence of the majority at the ballot box will be marginalised.
The Human Rights Act is typically Orwellian legislation of a sort which has become familiar under New Labour. In the name of the rule of law, the Human Rights Act introduces the rule of lawyers. In the name of promoting a rights-based political culture, it finally eliminates rights from the British constitution.
-- James Heartfield
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