Tag: Democracy and Rule of Law
Freedom of the press in 2014
Today is World Press Freedom Day. So here is an appropriate post:
Thursday morning Freedom House released Freedom of the Press 2014, its annual report assessing media freedom around the world. The event featured a panel discussion with Karin Karlekar (Freedom of the Press project director), Scott Shane (New York Times national security reporter), and Sue Turton (Al Jazeera correspondent). Jim Sciutto, CNN chief national security correspondent, moderated.
Jim Sciutto asked panelists why they thought global press freedom has fallen in the past year. Karin Karlekar said that technology can be a source for good that enables a large audience to publish and access information. However in many countries, particularly ones with authoritarian governments, governments are increasingly cracking down. In some cases governments have used new tactics. In others, their methods are just an extension of the traditional media censorship methods they have used in the past. Governments are using tools that are supposed to empower people to track and follow them instead.
In China, some of the search engines and social media outlets employ more people to censor them than they do to produce them. They have a large, widespread mechanism for controlling online content. But even governments that don’t have that technological capability have found ways to clamp down online. They pursue people after the material has been produced. That has been the case in some countries like Ethiopia, where they just imprisoned 6 bloggers.
Sciutto asked Scott Shane to put into context leaks and prosecutions. How much of that is a threat to freedom of exchange in the US and how the White House is covered?
Scott commended Freedom House for being objective on the issue of press freedom. It saddened him to see the US downgraded from 21 points last year to 18 points in this year’s report. This has to do with the fact that in all of American history until 2009, there were three government officials prosecuted for leaking classified information to the press. We are now up to eight with Obama. This affects the willingness of government officials to talk even on unclassified but sensitive issues. It affects the reporting that national security journalists do. The US is now ranked lower in press freedom than Estonia and the Czech Republic.
Sciutto: Has it reached a point where our leaders are not under the same level of oversight we expect them to be or that they were ten or twenty years ago?
Shane: In 1971 the New York Times Washington bureau chief Max Frankel wrote a memorandum about the Pentagon Papers arguing that covering secret, classified information is critical to informing the public. Some people take the attitude that it is secret; therefore, it should not be talked about. But that would make the White House and diplomacy impossible to write about.
As an example Shane mentioned how in 2011 the US deliberately hunted down and killed an American citizen in Yemen, the Yemeni-American cleric Anwar al Awlaki. There was a long legal opinion justifying the unilateral killing of an American citizen. That was classified opinion, so Shane made a Freedom of Information Act request for that document in 2010. Four years later, after filing a lawsuit, an appeals court ordered the government to release it. If he is lucky, Shane says he might receive a redacted form of this legal opinion 5 years later. When the president has the right to order the killing of an American citizen is a fairly fundamental question. Americans, Shane argues, have the right to know the legal basis.
Torton explained that she is being tried in absentia for aiding and abetting the Muslim Brotherhood. She left Cairo on November 6, which was a month and a half before the Muslim Brotherhood was accused of terrorism. Her Al Jazeera colleagues were arrested three days after the Muslim Brotherhood was proscribed a terrorist organization. They have been in jail for 126 days. Originally, she believed that the three judges were independent of the state and that they would see the situation for what it is. It is a politically motivated trial and she hoped they would throw the case out. As the sessions go on, however, and the judges refuse bail, she is frightened of the outcome.
Sciutto: Did the Arab Spring fail on the issue of freedom of information?
Turton: Each country has its own situation and different outcomes. Broadly speaking, the Arab Spring did not deliver what Western governments were probably hoping it was going to, which was perfectly packaged democracy. Access to information and the media is freer in some countries. Tunisia has had a sophisticated reaction to the Arab Spring. Libya is still a mess. At the beginning, optimism was enormous and the situation improved, but since then Libya has backtracked. But Egypt has failed. Talking to people on the ground, you get a sense that conditions are worse than under Mubarak.
Sciutto: How much of its moral high ground in terms of pushing for internet freedom has the US lost with the existence of the NSA and other interference on the internet?
Karlekar: I think it is affecting our moral high ground. Many governments use surveillance and other repressive tactics. The US used to be able to say that they should not be doing that. Now it is becoming much more difficult to say that. It is particularly ironic because the US government is trying to sell itself as an open, transparent government, but it is not.
Sciutto asked, are your Al Jazeera colleagues more scared now when they work?
Turton: We have had to change how we operate. This is not just Al Jazeera; it is the media in general. In Egypt it is not just journalists being thrown in jail, but anyone with opposing views.
Sciutto: When you get into issues like coverage of leaks and you worry about your sources and your own legal situation, does that affect the overall quality of reporting?
Shane: I think it has chilled reporting on national security. What is interesting is the crackdown under Obama. There seems to be a random quality to it. All of the cases have involved electronic trails; emails or Internet chat logs. In the past the FBI would say that they would like to investigate this leak, but there are 1,000 people with security clearance. They had no good way of finding out who was responsible. Now, they can go into the government email system and find out exactly who has been talking to the reporter whose byline is on that story.
In fairness, technology is driving leakers as well. Two of the cases, Bradley Manning and Edward Snowden, are unique in American history. The volume of classified information out there is unprecedented. If our government is tracking leaks to the press in the US, it is obviously happening on an exponentially greater scale in countries like China or Russia.
Karlekar: The fear is that these issues will lead to self-censorship. What stories are not getting covered out of fear?
The entire Freedom House report can be viewed here.
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The sooner, the better
With Aleksandar Vučić confirmed as prime minister of Serbia on the wave of a strong parliamentary election result last month, questions arise about what the new government should do about Kosovo. On the well-founded principle of doing big but potentially unpopular things you know you will have to do as quickly as possible in a new mandate, here is my advice, composed in response to a colleague’s queries:
Q: Can you give me reasons why the new Serbian government should recognize the independence of Kosovo?
Belgrade has said many times it will not recognize Kosovo’s “unilateral declaration of independence.” But no one “recognizes” independence, which is declared by those wanting it, in this case not unilaterally but rather in close coordination with both Europe and the United States. Britain never “recognized” America’s independence, which was a dramatic and important political rather than a legal act.
Belgrade has already accepted, in the agreement it reached with Pristina last year, the legitimacy of the Kosovo constitutional and legal order on the whole territory of Kosovo. It is not a great leap from there to recognizing Kosovo’s territorial integrity and legitimate authority.
Kosovo is now starting to build its armed forces. They will be designed with Serbia as the main potential threat, since Belgrade does not accept Kosovo as sovereign and continues, despite the Belgrade/Pristina agreement, to say it claims sovereignty over Kosovo’s entire territory. If Belgrade were to recognize, Pristina would be able to reduce its future military commitments and reorient them towards participation in international peacekeeping deployments. That would enable Serbia to do likewise. Kosovo will eventually become a NATO member. Recognition would enable Serbia to become one as well, if it decides to move in that direction.
If Serbia does not want to recognize Kosovo in the near term, the easy way out for now is to allow it to enter the United Nations. That will not be fully satisfactory, as it will not necessarily lead to diplomatic relations, but it would certainly be a step in the right direction. The Kosovars often point to the “two Germanys” precedent. I don’t really think that applies, since on the Pristina side there is no intention whatsoever of reunification, but from Belgrade’s point of view the “two Germanys” precedent should be seen as an attractive one.
How will recognition help the region enter the EU?
The big benefit to Belgrade of recognition, followed by establishment of diplomatic relations with it and border demarcation, would be closing one of the few remaining war and peace issues in the Balkans and thereby removing a major barrier to Serbia’s EU membership. I don’t know two neighboring states without mutual recognition, diplomatic relations and a demarcated border who have good neighborly relations, which are required for EU membership.
The 23 members of the EU that have recognized Kosovo will not accept Serbia as a member without Belgrade recognition and diplomatic relations. Only one EU member taking that position is needed to impose the policy on the rest. I’ve spoken with diplomats from half dozen of those countries who assure me that is their policy. Moreover, even if the governments were tempted their parliaments won’t ratify Serbia’s membership in the EU without recognition.
How will it help economic development in the region?
Kosovo, even under current adverse economic conditions in Europe, is still a relatively dynamic economy, in part due to its young and still growing population. Serbia is aging rapidly and declining in numbers. It would benefit enormously from increased trade with and through Kosovo, which in recent years has relied far more on Macedonia and Albania, to Serbia’s detriment. Completion of the Durres/Pristina road to Nis would bring enormous benefits to both Kosovo and Serbia, but this is unlikely to happen without recognition and diplomatic relations.
Serbia is central not only to the geography of the Balkans but also to its fate. But it cannot stand in the way of Kosovo’s progress without hurting its own EU prospects. Leaving this issue unresolved for another four years will mean less growth, fewer jobs, lower investment and reduced pensions for Serbia and its citizens. Recognition and establishment of diplomatic relations are bitter pills for Serbian politicians, but accompanied by protection of Serbs and Serbian sites in Kosovo they are needed to cure what ails the region. The sooner, the better.
PS: For analysis of the Serbian election campaign and results, try NDI’s Letter from Belgrade.
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Courting justice
Pristina-based daily Zeri posed some questions a few days ago about the proposal for a new special court to try cases emerging from the EULEX Special Investigative Task Force. My understanding is that Kosovo’s parliament approved the proposal yesterday, but here is my pre-approval interview in English:
Q: Should Kosovo’s Members of Parliament (MP) vote in favor of the Special Court that will deal with the outcome of Special Investigative Task Force (SITF) report? If yes, can you elaborate, please why should they?
A: MPs should make up their own minds what is best for Kosovo, but from an international perspective the Special Court solves a number of problems. It will be formed, as I understand the proposition, as a court under Kosovo law. It therefore represents a step towards giving Pristina authority over difficult cases. It will meet outside Kosovo, therefore enabling better protection of witnesses, judges and prosecutors. It will handle sensitive cases that would be difficult to try in Kosovo without creating undesirable political backlash.
If a Scottish Court can try the Pan Am 103 bombers in The Hague, it seems to me a Kosovo court meeting outside Kosovo is not such a stretch.
Q: Having in mind that EULEX, the EU’s largest and costliest rule of law mission ever is operational in Kosovo since 2008, why should the country’s Parliament approve a new Court?
A: As I understand it, the court will be part of the Kosovo legal system. It will lend credibility to that system and resolve cases that have attracted a lot of attention.
Q: Does the creation of a new Special Court also mean that the locals and the EU failed on their rule of law mission?
I might prefer in principle that the already existing Kosovo legal system handle whatever cases emerge from the SITF report, but there would be little international confidence at present in such a solution. Six years however is not a long time to accomplish the tasks EULEX was given. It is not surprising that the ultimate goal has not yet been achieved.
Q: In Kosovo, there are some people that believe that with the creation of the new Court the country’s image will suffer even more, while some other people say the opposite – what is your opinion on this?
A: From an international perspective, the creation of the court will be seen in a positive light. It will signify commitment to justice for all those who suffered.
Q: There are a lot of speculation’s regarding the number and the identity of the people who could be indicted by the new court – remembering that Mr. Dick Marty’s report made a mention of Kosovo’s Prime Minister, Hashim Thaci, can the latter be one of the indictees?
A: I can be one of the indictees, if they have evidence against me. No one is above the law. One Kosovo prime minister has already been tried and acquitted at ICTY, more than once.
But I would underline: the Marty report mentioned Prime Minister Thaci but offered no evidence against him that would even begin to stand up in court. That is one of the prime reasons for creating the SITF: the Marty report unfortunately created suspicions that it did not even begin to prove.
Q: Albin Kurti’s party “SelfDetermination” says that a similar Court/Tribunal should have been created for Serbia, and not Kosovo. Your comment, please?
A: Most high-level Serb indictees have been tried and many convicted by an international court, namely the International Criminal Tribunal for the former Yugoslavia, which is not taking new cases and in any event cannot—as I understand it—try cases where the violations in question occurred outside Yugoslavia. Some serious cases have been tried and convicted in Serbian courts.
I don’t think the international community has any objection to Kosovo trying war criminals in its existing courts, which it has sometimes done, but as in Serbia doing so in politically sensitive cases would be difficult. Serbia relieved itself of difficult burdens and gained credibility with the international community when it relied on ICTY.
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Booooogus
The Administration and its surrogates are trying hard to assure all concerned that its pivot to the Asia Pacific will not reduce attention to the Middle East. They are also trying to minimize the impact of Vladimir Putin’s Ukraine maneuvers. Meanwhile Bashar al Asad intends to hold an “election” June 3 and photographs have confirmed the Russian origin of supposed pro-Russian demonstrators in Ukraine. Presidents may try to set their own agenda, but circumstances in the world don’t always comply.
The prospect of an election in Syria under current circumstances is bozotic. While Asad will no doubt find some supposed “opposition” figure to contest him, the whole thing will be what the car guys call “booooogus.” A good part of the Syrian population is living in areas outside government control, one-third or more of the population is displaced or refugees, violence threatens even more, and election observation is impossible. Unfree and unfair is the best that could be said about an election occurring under these conditions.
The protesters taking over government buildings in eastern and southern Ukraine are no less bogus. Russia inspires, equips and leads them to disrupt Kiev’s efforts to exert control. Most may be Ukrainians, but that makes little difference. For the Russian foreign minister to complain about Kiev’s failure to rein them in adds insult to injury. Provoking unrest and then complaining about is downright evil.
The question is what the United States can and should do about such reprobate behavior.
In Syria, only an effort to rebalance the battlefield will have a serious impact at this point. That is apparently happening, with the shipment of anti-tank weapons to a selected few trained members of the opposition. Hesitancy and reluctance still characterize the effort more than boldness and resolution. Even with greater resolve, arming will not suffice. There are other requirements: strengthening the opposition politically by connecting the Syrian Opposition Coalition (SOC) with the fighters on the ground, enabling the SOC-connected administrations to govern more effectively in liberated areas, and convincing the Iranians that their assistance to Asad is damaging to their regional ambitions.
I wouldn’t waste any more breath on the Russians, who appear to have decided to support Asad to the bitter end. Iranians I heard from recently show much more concern about the damage being done in Syria, not least because sectarian warfare and the growing strength of Sunni extremists are seen as real threats in Tehran. Asad’s use of chemical weapons and the increasingly serious attrition of Hizbollah forces also give Iran pause. Tehran has more to worry about if Asad falls without a political arrangement for what comes next than Moscow does.
In Ukraine, the United States can do little more than insist on implementation of last week’s agreement to deescalate. If this includes requiring the demonstrators in Kiev’s Maidan to disperse, as quid pro quo for an end to the occupation of government buildings in the south and east, so be it. The key thing is to create the conditions for a decent election at the end of May, or soon thereafter, to legitimize a government in Kiev with democratic blessing. The demonstrators in the east and south will try to prevent that, not least because the Russian annexation of Crimea has eliminated any chance the country’s Russophiles can win it. They will be condemned to the opposition. Their best hope for them to avoid such an election is to make Ukraine as chaotic as Syria.
Russia is relying on bogus protestors in Ukraine and a bogus election in Syria. The best response right now would be a decent election in Ukraine and more serious support to a more unified opposition in Syria. Neither will repair all the harm that has been done in both places, but the President’s prospects for convincing allies in Asia this week and next that they can rely on Washington depends on what he achieves in the places he would like to leave behind.
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The roles and limits of international courts
Friday morning the US Institute of Peace hosted a discussion about the role of the International Court of Justice (ICJ) and the International Criminal Court (ICC). Featured panelists were Prosecutor Fatou Bensouda (ICC), Judge Joan Donoghue (ICJ), Judge Xue Hanqin (ICJ), and Judge Julia Sebutinde (ICJ). Abiodun Williams (President of the Hague Institute for Global Justice) moderated.
Judge Donoghue emphasized that it is important to distinguish the ICJ from the ICC. The ICJ, also known as “the World Court,” has been part of the UN apparatus since WWII. Its role is to decide contentious cases between two states. The court also considers whether a state has met its obligations under international law. Neither function involves making a decision about whether an individual is accountable for a specific act. The ICJ is composed of 15 judges from the major legal systems around the world. Three of the 15 judges are women. The ICJ does not automatically have jurisdiction; states must first consent. Two recent cases brought to the ICJ were the whaling dispute between Australia and Japan as well as the maritime boundary dispute between Chile and Peru.
Prosecutor Bensouda agreed that it was important to distinguish between the two courts. While the ICJ deals with disputes submitted by states, the ICC deals with individual criminal responsibility. This includes war crimes, crimes against humanity, and genocide. The ICC can only intervene in territories of state parties or over citizens of state parties that committed a crime.
Established in 2002, the ICC is not an organ of the UN. It is a treaty-based institution. Currently 122 states have signed and ratified the Rome Statue. The ICC can exercise jurisdiction when a state requests ICC intervention or the UN Security Council refers a situation to the ICC for investigation and prosecution. An ICC prosecutor can intervene if a state party is not already prosecuting and investigating. However, the primary responsibility falls on the state.
Judge Xue explained the jurisdictional issues both courts face. There are three ways for the ICJ to have jurisdiction. Article 36 of its statute makes it compulsory for states to accept ICJ jurisdiction. International agreements may also provide for jurisdiction. The third way is through agreement by two states. If states do not accept going to court, it weakens the role of the ICJ.
Bensouda added that the ICC has limitations. It operates in a political environment. There are many priorities for states. A judicial mandate is not always a top priority. The effectiveness of the ICC depends on cooperation with states. It is only through this cooperation that the ICC can function as a judicial institution.
Another limitation is a double standard. For states that are party to the Rome Statute, the ICC can intervene on behalf of victims. Non-member states are not able to subject to this intervention unless the UN Security Council refers to or accepts the ICC’s jurisdiction. For full judicial effectiveness, all countries should be parties to the Rome Statute.
Judge Sebutinde noted how both courts depend on states and the international community to enforce judgments. When states are hesitant to implement a ruling of the courts, it is easy to turn on the institutions and accuse them of ineffectiveness. But the international community should turn on itself and wonder why the institutions they created are not fully functioning.
Bensouda said that the ICC can play a preventive role. Knowledge of the existence of the institution and its application of the law can act as a deterrent and stop would-be violators from committing crimes. This has been demonstrated in empirical academic work.
Williams brought up the issues of Syria and Crimea. Neither the ICC nor the ICJ is playing a role in either matter. Does this suggest that these courts have nothing to contribute when stakes are especially high and the international community divided?
Sebutinde replied that before looking to the courts it is necessary to look at the international community and the UN Security Council. The judges as individuals may be interested in these issues. But unless a case is presented, they can only be spectators. The ICJ can only settle disputes where states allow.
Judges Donoghue and Xue agreed that it can leave a feeling of frustration when one looks at disputes and wonders why they are not in an international court. Sometimes an affected state decides that the best way to make progress is not to come to court for resolution, but to pursue other avenues.
Bensouda concluded by saying that in her opinion the ICC should intervene in Syria. But it can only intervene on territories of state parties. Neither Syria nor Ukraine are state parties. Therefore, the ICC cannot intervene. It is a matter of jurisdictional limitations.
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Everything uncertain, except the winner
After less than two years, Serbia is about to hold new parliamentary elections March 16. Even though the voting is just a week away, most people show little interest in the campaign, but turnout is still expected to be relatively high. The upcoming election is unique in that it is not about who will win, as the winner is already known. It is the Serbian Progressive Party (SNS) of Aleksandar Vučić, the incumbent first deputy prime minister.
The election race is rather for Vučić’s junior coalition partner in the government. It won’t necessarily be the winner of the second place. It can be any party that will manage to meet the threshold (5% of all voters who participate in voting, including invalid ballots) and thus enter the parliament.
Prime Minister Dačić’s Socialist Party of Serbia (SPS) is currently the second in terms of popular support according to most relevant opinion polls. The former ruling Democratic Party (DS), now led by former Belgrade Mayor Đilas, and former President Tadić’s new party are struggling for the third place. The contest seems to be extremely tight (in some polls Tadić has a little more votes, in others Đilas). And in addition to Dačić, Tadić and Đilas’ parties, it is only the Liberal-democratic Party and Vojislav Koštunica’s nationalist Democratic Party of Serbia that are expected to win some seats in parliament, though barely exceeding the threshold.
According to opinion polls, Vučić’s popularity is so high that his party might even win an absolute majority, so he might not need a partner at all. Unless Vučić intends to change the constitution, which will require approval by two thirds of MPs.
While there is no doubt as to who will lead the government, everything else is uncertain.The campaign is full of populist messages and unrealistic promises. Interestingly, Kosovo and other “big national topics” have been rarely mentioned, except by minor nationalist and Russophile parties. The focus is almost entirely on the economy. All candidates agree on the need for deep structural reform, but differ on the type of measures and methodology of implementation. Some, including Vučić, are proposing a shift toward a more liberal, market-oriented model. Others, like Prime minister Dačić, are calling for even more state intervention.
Top priorities for whoever is in power after the elections will be rationalization and reorganization of an oversized public sector and creation of a more attractive environment for direct long-term investment. The outgoing government has taken some steps in that direction, but that’s a small part of what has to be done if Serbia is to avoid financial collapse.
Vučić’s frequently repeated insistence that he will not give up on sweeping economic reforms, however painful they are, has not degraded his popularity thus far. The secret of Vučić’s success lies in his bold action against high-level corruption and organized crime. Delivering on his promises, Vučić has revived at least a portion of people’s lost hope. That’s an encouraging sign.
The problem is, however, that people tend to support changes only so long as their personal lives remain unaffected. The main challenge to the next government will be how to mitigate social consequences of reforms, especially in the early stages of implementation. This will require extraordinary effort, but it is the price that has to be paid for lack of courage and decisiveness on the part of previous administrations.
And what about the opposition? Once powerful, the DS is in steep decline and a deep crisis of identity after suffering defeat in the 2012 elections. It is no longer even the second strongest political force, pushed out of that position by Dačić’s SPS. The latest in a series of blows came when former Serbian president and DS leader Boris Tadić left the party and formed his own following a period of heavy infighting with his successor at the party’s helm, Dragan Đilas. Both DS and Tadić’s new party should be happy if each of them gets between 5 and 10 percent of votes.
DS is desperate to attract parts of the electorate that are bitterly opposed to Aleksandar Vučić. High party official Borko Stefanović recently went so far as to warn that Vučić’s victory is likely to lead to the “Ukrainian scenario” in Serbia, but his statement immediately backfired on his party’s rating. The strategy of DS in the campaign basically boils down to claiming they are the only party that is not going to form a post-election coalition with Vučić’s “Progressives.” Unfortunately for DS, Vučić obviously has no intention of calling them into a coalition, either.
Meanwhile, the Democrats and other critics of Vučić have been accusing him of establishing a “soft dictatorship.” Their fear is that Vučić’s nearly unprecedented popular support, coupled with too much power in his hands, could seriously undermine the already fragile democracy Serbia has achieved. But there is little difference between Vučić and most of his predecessors when it comes to authoritarian tendencies. Not to mention that the reforms awaiting the next government will require a firm hand on the tiller.
After all, it is not bad for a country to have a highly popular mainstream politician at a time when many countries, including a number of developed Western democracies, are experiencing a crisis of representation and democratic legitimacy, with extremist parties and fringe movements gaining ground. But that’s another story.
Vis-a-vis European integration, Belgrade will look to trade any progress in normalization of relations with Kosovo for concessions from Brussels on various chapters of accession talks. Such an approach carries a clear risk. If Brussels demonstrates too much leniency, Serbia could be allowed to proceed without satisfying all the criteria, particularly in areas such as human rights, media freedoms and the rule of law. They will demand a lot of attention in the years ahead.
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