Month: September 2011
All roads lead to Islamabad
The commentariat is rarely as unanimous as it has been on the assassination of Barhanuddin Rabbani: Dexter Filkins, Marvin Weinbaum, Anand Gopal, Alissa Rubin and others (including Kate Clark of the Afghanistan Analysts Network) all agree that it will set back hopes for a negotiated agreement with the Taliban.
This despite the fact that the Taliban have not rushed to take credit for the assassination. Jihad Watch terms them “oddly quiet.” While no one seems to know why, the guessing focuses on differences of opinion within the Taliban, some of whom may want to pursue negotiations.
That suggests to me that the gloom about negotiations may be overdone. In a study published before the assassination, James Shinn and James Dobbins come an interesting conclusion in their primer on Afghan Peace Talks:
Close examination reveals that the priorities of all the potential parties to an Afghan peace process overlap to a considerable degree. For instance, each desires a withdrawal of Western armed forces—a situation especially desired by the publics in all of the Western countries. All Afghans want foreigners to stop interfering in their affairs. All foreign governments want assurances that Afghan territory will not be used to their disadvantage, whether by third parties or the Afghans themselves, and thus want to ensure that terrorists hostile to their countries cannot use Afghanistan as a sanctuary.
The problem of course is that it is not clear what the Taliban are prepared to do about terrorists, with whom at least some of them are allied. The killing of Rabbani is likely to come from sectors of the Taliban most tightly linked to international terrorists, who will want to do everything they can to prevent a negotiated settlement.
I would certainly expect a moment of hesitation in pursuing peace talks. Who is going to be brave enough to replace Rabbani, or meet the next time with a delegation that supposedly comes from the Taliban? Who among the Taliban would want to take the risk? Violence of this sort has consequences.
But they need not be permanent. The Americans clearly need a negotiated settlement as they begin to head for the exits. President Karzai wants one too, especially after the spectacular attacks on his allies and half brother in recent weeks. The remnants of Al Qaeda will want to continue fighting, as will some of the Taliban. But the prospects of civil war, so obvious to the American commentators, should be obvious to the Taliban too. Are they willing to test their mettle again in a war with the Tajiks, Uzbeks and others who once constituted the Northern Alliance, this time heavily armed and supported from the air by the Americans?
Taliban decisions on this question will depend heavily on whether they can continue to rely on their Pakistan safe haven. As Admiral Mullen at long last made clear in testimony yesterday, Islamabad is very much part of the problem. We are clearly going to have to figure out how to diminish Pakistani support for Haqqani network operations inside Afghanistan if a negotiation with the Taliban is going to succeed.
PS: For a well-informed view of splits in the Taliban, see Michael Semple’s piece on the Haqqanis in Foreign Affairs.
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Rashomon beyond borders
I finished jury duty yesterday, acquitting a guy who was observed by an undercover policeman conducting a drug transaction. The twelve jurors reached agreement in less than an hour.
I went home the night before convinced after hearing the prosecution’s case that we would convict the guy. The policeman said he had seen the accused transfer $25 worth of cocaine and PCP to another person in broad daylight on a Washington, DC street corner.
Yesterday, the defense put the accused on the stand, where he said he was an addict trying to buy, not sell, when he realized the transaction was being observed. He therefore aborted the transaction, asked for and received his money back without receiving the drugs, which were found in a search of the other guy.
None of the jurors was sure this defense account of events was true, and for all I know it is a standard ploy to claim to have been buying when you are accused of “distribution,” which the judge explained requires transfer to another person (not necessarily for payment). But there was no compelling evidence the story was false. Had the policeman seen the tiny packets (“zips”) of drugs transferred? Not really, but he claimed that he saw the second man pick something unidentified out of the accused’s cupped hand.
So here you have two different versions of the same events, with the rules heavily weighted in favor of the defense: the government was obligated to prove the distribution of illegal drugs “beyond a reasonable doubt.” None of us on the jury thought that standard had been met.
It struck me as we proceeded through the careful choreography of a DC courtroom how really very difficult it is to administer justice this way. Jurors randomized, judge impeccable in explaining the law and protecting the integrity of the process but not commenting in any way on the truth or falsity of the allegation, machine to make consultations at the bench inaudible, jurors disciplined about not discussing the case outside the jury room, prosecutor and defense attorney clearly well-educated and experienced.
It is not an exaggeration to say that it is a privilege to have your crimes judged in this fashion, though the drug-addict accused is unlikely to have been grateful. His court-appointed attorney told me after the trial he did not think the guy would take advantage of the big break the jury had given him.
All this for a $25 offense? I still don’t know why the government bothered to prosecute this case, but I imagine they were convinced he was a much bigger fish than he appeared in court.
Which raises the much more important question of how and why Troy Davis was convicted in Georgia when there was no physical evidence and most of the witnesses changed their stories after the conviction, several claiming the police had pressured them to testify as they did. I can’t say Troy Davis was innocent, but was he guilty “beyond a reasonable doubt”?
The world was watching the Troy Davis case. Were I still a U.S. diplomat, I would find it hard to explain the execution of someone about whom there was even a sliver of reasonable doubt. The issue for me is not so much the moral one, which should be more important to those who believe government is an inefficient and ineffective mechanism to do just about anything and therefore inherently untrustworthy. The issue for me is doing something irreversible (and, by the way, frighteningly expensive, as capital cases chew up a lot of resources) when there is no physical evidence. Eye witnesses are notoriously unreliable.
The United States makes a lot of effort these days to promote “rule of law” abroad–it has been a major part of our efforts in Iraq and Afghanistan. Ours is such an expensive and difficult system to administer that it gives me pause to ask poorer and less well educated countries to imitate it. But the execution of Troy Davis gives me even greater pause, even if both Iraq and Afghanistan are devotees of capital punishment. Can they really be expected to do any better than we do in eliminating the possibility of executing someone who is innocent? What is the example we are setting?
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Does statehood make a difference?
Three different concepts are often confounded: statehood, sovereignty and independence. There is good reason for this: most states are also sovereign and independent. But the three attributes are distinct and they are acquired in different ways. My approach on this issue differs from the usual one, which regards the concepts as essentially identical and distinguishes between “declarative” and “constitutive” theories of how independent, sovereign statehood is acquired.
Statehood in my way of thinking comes from acquiring the institutions needed to govern. Arkansas is therefore a state not only in the sense of being one of the 50 Federal units of the United States but also in the sense that it has the institutions that enable it to govern itself, within limits set by the constitution, the Federal courts and Federal legislation.
Sovereignty refers to an international entity with a legitimate monopoly on the means of violence on a particular territory. Sovereignty is acquired through recognition by other sovereign states, an admittedly tautological definition that is nevertheless well established (the “constitutive” theory). Arkansas may believe it has a monopoly on the legitimate means of violence, and on most days it does. But it is not recognized as sovereign by other sovereign states.
That’s because Arkansas is not independent. Independence is declared by a state on its own volition once it meets minimal criteria (the “declarative theory”) with little restriction in international law, as became apparent in the recent decision of the International Court of Justice in an advisory opinion requested by Serbia about Kosovo.
While these three concepts usually go together, there are times when they don’t. Taiwan is clearly a sovereign state, but it does not claim to be independent (at least not yet). Somalia lacks a state (or has too many of them, depending on how you look at it) and is not sovereign, since none of its state-like entities has a legitimate monopoly on the means of force in the whole territory known as Somalia. It is nevertheless more or less independent because no other state has claimed the dubious honor of governing it. Kosovo is a state and independent, and is recognized as sovereign by 82 UN members but depends on foreign forces to exert a legitimate monopoly on the means of violence, which is generally referred to as a condition of “limited” sovereignty.
Which brings us to the important but confusing case of Palestine. It is recognized by 126 states, even though the territory on which it might claim to exert a legitimate monopoly on the means of violence is not clearly defined. Whatever its precise boundaries, that territory is divided into two distinct pieces, the West Bank and Gaza, with different state institutions governing in each. A nominal agreement to unify them has not been fully implemented.
Palestine cannot be said to be independent, despite its declaration of independence in 1988. That is at least in part because its territory is “occupied,” or at least controlled, by Israel.
This week’s jockeying at the UN should be viewed in the light of these three distinct attributes. UN General Assembly acceptance of Palestine as a non-member state is the maximum the Palestinians can hope for. The United States will veto full membership in the UN, which has to pass through the Security Council before approval in the General Assembly. Palestine will not become independent or more sovereign than it already is no matter what the General Assembly does. The GA can, however, put Palestine on the same footing as the Vatican, which is not saying much in my view.
The Palestinians hope it will enable them to pursue cases against Israel in the International Court of Justice and at the International Criminal Court. I am not a lawyer and dare tread only lightly on legal turf, but it seems to me Israel has little to fear in the ICJ, which allows states not members of the United Nations to come before it, but only under conditions set by the Security Council. Here are the relevant provisions of its Statute (Article 35):
1. The Court shall be open to the states parties to the present Statute [all members of the UN].
2. The conditions under which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.
3. When a state which is not a Member of the United Nations is a party to a case, the Court shall fix the amount which that party is to contribute towards the expenses of the Court. This provision shall not apply if such state is bearing a share of the expenses of the Court.
So if the Security Council were to allow a non-member state (The Vatican today or Palestine tomorrow) access to the ICJ, then it would be the equal of any parties to the case (say Israel), but that if is a big one.
The ICC is different. It summarizes its jurisdiction as follows:
The Court does not have universal jurisdiction. The Court may only exercise jurisdiction if:
- The accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court;
- The crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court; or
- The United Nations Security Council has referred the situation to the Prosecutor, irrespective of the nationality of the accused or the location of the crime.
The Court’s jurisdiction is further limited to events taking place since 1 July 2002. In addition, the ICC has no jurisdiction in a state before the date on which that state joins. Bottom line: even if Palestine were to become a state party to the ICJ, there could be no prosecutions for anything occurring on its territory before it became a state party.
The Palestinians have come up with something that has at the very least made everyone sit up and pay attention. With increased support from Egypt and Turkey, they have put Israel and the U.S. in a bind. Hearing Prime Minister Netanyahu, the master of unilateral settlement activity, insisting that nothing can be achieved away from the negotiating table is–as I put it earlier in a tweet–“chutzpahdik.”
That said, the best way out is still one that leads to serious negotiations, which everyone (even Netanyahu) now seems to agree begin with the 1967 borders, subject to land swaps. A UN General Assembly resolution that accords some degree of recognition to the serious efforts that have been made in recent years to build a Palestinian state capable of providing security, at least on the West Bank, while getting the parties back to negotiations, would be a step forward.
Some will object that the Palestinians are just trying to delegitimize Israel. I suppose there is some truth in that. They are certainly trying to take Israel down a peg. But in my way of thinking it is Netanyahu who has done Israel the most damage. His failure to make up with Turkey after the Gaza flotilla incident and his refusal to apologize to Egypt for killing its security forces–not to mention his grandstanding at the U.S. Congress in May–has caused more damage than anything the Palestinians could have dreamed up.
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The long and the short of it
As I prepare to head home to DC from Cairo today, my two weeks in Egypt and Libya seem enormously interesting and informative, even as they reconfirm how little can be understood from such short stays in complicated environments. What do we really see of another society without speaking its language and living at length in its midst?
I am close to finishing Alaa al Aswany’s The Yacoubian Building. There is little in its penetrating accounts of abusive sexual relationships in Egypt that I would gather from staying at the Fairmont and running around Cairo to talk with various participants in its recent revolution, though I knew enough about harassment of women here to understand how fraught with sexual dysfunction the society is.
In Libya, the thing that struck me is how difficult it is to understand the role of religion. Pervasive, but not really political, at least not yet, Islam seems more a unifying factor (again, for the moment) than a divisive one, as it certainly is among some Egyptians. But that may be changing.
The east/west geographical divide in Libya appeared far less important to me (and to many journalists who have spent a lot of time in Libya) than some experts had predicted. At the same time, the demands of fighters from Misrata are roiling what had appeared to be relatively tranquil regional relationships. I understand they yesterday laid claim to the prime ministry in a reshuffled executive committee of the National Transitional Council, on grounds that they have fought more aggressively against Qaddafi’s forces, especially at Sirte, than anyone else. The Benghazis, who claim to have initiated the revolution, did not react well.
Egypt and Libya are certainly not the only countries with sexual dysfunction, regional differences and problems with the role of religion in public life. I didn’t live 10 years in Italy without hearing a great deal about all three. But even after 10 years I wasn’t sure that I understood things the way Italians understood them–in fact, I’m sure I didn’t. I was still an American with different cultural baggage and presumptions about gender, geography and religion.
Societies in the midst of revolution are particularly problematic. How much is changing and how much is staying the same? Most historians would hesitate to say until years later. Libya and Egypt have both decapitated their autocratic regimes, but they are still far from having established new ones.
For all the giddy enthusiasm of the revolutionary days and weeks, there is no guarantee that they will be democratic, or even much different from the old ones. Libyans often say they know what they don’t want, namely a leader who tells them what to think (and enforces the dictate with violence). But does that mean they won’t accept a softer autocracy? No one in Egypt seems sure any longer that the military will be prepared to leave power, even if the generals seem ready to set a date for the first round of elections on November 21.
Short visits may be unsatisfying and even misleading, but it doesn’t follow that longer visits will be much more enlightening. I wouldn’t want to wait until the history books are written to have a look for myself. The point I suppose is to take the opportunities we can to expose ourselves to other societies and learn whatever can be gathered in the time available, remembering always that there is a great deal more beneath the surface that we can’t possibly fathom.
I certainly don’t regret having passed up a summer holiday for this September interlude in two very exciting places!
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So far so good
Free Libya seems to me headed in the right direction. It could still be diverted, in particular if Qaddafi manages to raise an insurgency or if the revolutionary militias fall out with each other and begin internecine fighting. But the National Transitional Council (NTC seems to have won the battle with TNC) has legitimacy in the eyes of every Libyan I’ve talked with. They like the roadmap to elections and the constitution the NTC has laid out, they like what they regard as its uncorrupted leadership, and they have confidence that things will improve because of Libya’s vast oil and gas resources.
I’ve never been in a post-war situation with as much unanimity and solidarity on main issues as here. You can see it literally painted all over both Benghazi and Tripoli–the pre-Qaddafi (royalist) flag that symbolizes, Libyans tell me, independence (not the monarchy that flew it originally). Their anthem, they say, is not a “national” anthem but an “independence” anthem (they’ve of course ditched Qaddafi’s and brought back the royal one). I bought a flag in Benghazi’s Court House square, to join the excessive number of symbols of freedom that decorate my office at Johns Hopkins/SAIS. It would be hard to leave Libya without it.
The sense of solidarity and unanimity extends to Tripoli, though it certainly does not entirely fill the vast expanse between the two cities. There is still fighting at Sirte, Bani Walid and other places where Qaddafi’s loyalists are holding out. There is a question whether the NTC can reach out and extend its big tent approach to those who live in central Libya, but they have certainly engaged Tripoli, at least for now.
I spent a few quality hours at the Defense Ministry in Benghazi, where I found a number of professionals engaged seriously with less than glorious challenges. They believe Qaddafi’s forces have strewn 15,000 mines across the countryside. The preferred method for finding them in sand for the moment is with your hands, though there are some higher-tech approaches whose export to Libya is still prohibited by the UN arms embargo. I hope the UN fixed that in the Security Council resolution that passed yesterday.
The Defense Ministry is also concerned about its expeditionary medical capacity, which is close to zero. They haven’t got field hospitals or the logistical capacity to support them.
These are not the kinds of problems that I usually worry about, but I was glad to hear that others do worry about them. “Uniform” may be a euphemism at the Defense Ministry–everyone seems to wear whatever BDUs (battle dress uniform, or “camouflage” as the civilians say) come to hand, as well as the uniforms of Qaddafi’s army. There is no saluting and no formality, even in the anteroom to the minister’s office. But there is a sense of professional purpose and seriousness, as well as a good deal of camaraderie. These folks know each other, have fought a war together, and are now trying to sort out the thousand things that got left behind. But how much the Defense Ministry is linked to the militias guarding street corners in Tripoli is not clear.
The challenge is to unify Libya’s many former rebel forces before they start serious jockeying for territory and power, demobilizing at least some of them and getting others to return to the rougher places from which they came. It will not be easy. Life in Tripoli may look pretty good to someone from the Nafusa Mountains.
Elementary school opens today in Libya. Universities next month. The police are on the streets. The garbage collectors are out with reflective vests, even if their efforts still seem spotty. I talked to a former Mercedes manager today. He says people are still not taking their fancy cars out of the garage. But traffic is heavy. Friday nights’s exuberant demonstration, well attended by women and children, is still ringing in my ears.
Libyans are feeling proud, even giddy with their refurbished identity, which they trust will be more welcome in the rest of the world than the previous one. Fears of an east/west split in the country have so far not materialized. Qaddafi may still be at large, but no one is expecting him back except to be tried (and they expect executed). So far so good, even if big challenges lie ahead.
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One hand
My stake-out of a Tripoli mosque during noon-time prayers yesterday led to a conversation with a professor of forensic science. Admittedly my sample is infinitesmal and my sampling technique highly biased: I need someone who speaks English (my years of studying Arabic produced little) and is willing to talk with a foreigner. Very few randomly approached Libyans speak passable English, and my Arabic is truly primitive.
The sermon focused on unity, the professor said. “One hand” is the metaphor used both here and in Egypt. This includes all Libyans, he said, referring explicitly to the Catholic church around the corner, not just Muslims. The biggest threat to unity comes from tribalism, which my professor (against conventional wisdom) thought strong even in Tripoli, where there are occasional wall posters advising against it. The sermon asked people to be patient and to support the new authorities, who would bring greater prosperity.
Libyans are at pains to emphasize their gratitude to NATO. My professor thought that without NATO the rebels would surely have lost to the regime. He and other intellectuals who sided with the February 17 revolution would have been hung, or even chopped into pieces. He and others are grateful.
Many people did lose their lives in the six months of fighting. Perhaps 2-3000 lie in mass graves in Tripoli and elsewhere. Some were burned alive in containers doused with gasoline. DNA analysis will be possible, but there is little capacity to conduct it in Libya. They are just starting to organize the effort, hoping that instructions to leave the mass graves undisturbed are followed.
Then there is Abu Saleem, the notorious prison where Qaddafi ordered a massacre of more than 1200 prisoners in 1996. Their remains, too, need to be identified. Both in Benghazi, where the court house square hosts a big display on the Abu Saleem massacre, and here in Tripoli there is a vivid memory of the event and a strong feeling that justice has to be done on behalf of the victims.
As in so many Muslim countries, the religiosity on display in Tripoli Friday had little to do with going to mosque, where not much more than a handful of classically thawb-dressed men seemed to attend noon-time prayers in my neighborhood, though I understand there was a big crowd in Martyrs’ square for prayers with Turkish Prime Minister Erdogan. Just as important are the pervasive sounds and symbols of Islam: the call to prayer (but if they are doing the early morning adhan I am missing it), the star and crescent moon that appears on the “independence” flag and therefore on most revolution paraphenalia, and women covering at least their hair (well over 90%). I imagine Islam is also present more or less constantly in both public and family life.
The natural question is whether Islam will take a political form in Libya. The Muslim Brotherhood is far weaker than in Egypt, but some of the militias and their leaders are explicitly Islamist. I have no way of telling whether they will gain traction in the nascent political arena. I imagine that they will to some extent, even if every Libyan I’ve asked about this so far says no.
One hand cannot endure forever if Libya is to be a democracy, or even a proto-democracy. The emergence of parties and factions will be an important test for the revolution, as the fingers on that one hand start to point in different directions.
But for the moment, unity is still producing results: the UN General Assembly acceptance of the NTC to occupy Libya’s seat and yesterday’s at least partly successful attacks on Qaddafi’s holdout towns of Sirte and especially Bani Walid.
We’ll have to wait to see what tomorrow will bring, but last night all of Tripoli was down at Martyr’s square to show support for the NTC and commemorate the hanging eighty years ago of Omar Mukhtar, Libyan hero of resistance to the Italians. Ironic therefore that many Libyans today dream of visiting Italy, admire the Italians and make a very fine caffe’ ristretto as well as a half-decent pizza rustica. Strange that a decent ice cream, even of the packaged (confezionato) kind, seems impossible to find. That’s one of my religious devotions. Maybe in the New Libya.
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