General Pervez Musharraf’s November surprise inspires ambivalent reactions about international law’s progress.
For those who have observed other leaders all over the world who have brazenly attempted, often successfully, to perpetuate their own tenures in office, Musharraf’s apparent bid to do the same is all too familiar. His declaration of a state of emergency last November 3rd, suspension of the Pakistani constitution, and proclamation of martial law seems to present yet another case of international law’s inefficacy. Once again, lawyers have been reduced to letter-writing and petitions, sympathy protests, and other ‘mobilization of shame’ tactics to respond to a basic (and obvious) assault on the right to democratic governance and human rights. (See here for the response by the Society of American Law Teachers, here for a public letter by ABA President William H. Neukom, here for the press release by the Canadian Bar Association and here for a letter by its President, here for a letter to Secretary of State Condoleezza Rice from a group of human rights organizations, or here and here for press releases by Amnesty International and by Human Rights First.)
Once again, the ruler of another fragile democracy on the eve of an important election chooses to jail political opponents, lawyers and human rights advocates, to muzzle its emerging independent press, and to purge its Supreme Court of disagreeable judges. Once again fundamental rights to life and liberty, freedom of speech, assembly, and association, and equal protection of the law are suspended at the whim of a single individual seemingly accountable to no one. Once again all these actions are taken under the pretense that “terrorists” pose threats to “national security.” Once again, those seeking to restore the rule of law and to release those detained (including Pakistani Chief Justice Iftikhar Mohammed Chaudhry who was put under house arrest), lack an effective mechanism at either the national or the international level. Once again international law seems helpless before a leader of a nation with nuclear weapons who has been befriended by the leader of the world’s superpower. Once again, while courageous Pakistanis try to defend the rule of law at risk to life and liberty, those of us outside Pakistan are forced by the lack of evident legal remedy to cower before raw political and military power.
The UN Security Council is unlikely to proclaim a “threat to the peace” and impose sanctions – unless the United States’ decides to turn against its ally in the war on terror and unexpectedly leads a charge to secure the crucial nine votes in that body. Nor is it likely, despite the proliferation of international courts and tribunals that a global or regional judicial forum will pronounce on the legality of Musharraf’s actions. Even though Pakistan is a party to the ICJ’s compulsory jurisdiction,
it takes another state brave enough to make the case, a Court willing and able to act expeditiously to affirm jurisdiction and grant relief on the merits, and a Security Council willing to enforce any judgment. Absent some unexpected deus ex machina waiting in the wings, the types of carrots and sticks that might get Musharraf to change his mind are really not that different from those that would have been available prior to WWII’s turn to institutions for global governance. The lawyerly tools available to secure Pakistan’s respect for the fundamental rights of its citizens are not, sadly, dramatically different from those that existed before the Universal Declaration of Human Rights launched the much-touted ‘age of rights.’
And yet, as is also true of the legal black holes that the United States has attempted to fashion during its “war” on terror, Musharraf’s legal black holes are not immune from the rhetorical power of international law. If even the world’s superpower has increasingly had to respond to legalistic concerns about its prison in Guantánamo, the rights applicable under its newly revamped military commissions, its secret detention sites, “ghost” detainees, “enhanced” interrogation techniques, and renditions in arguable violation of the Convention Against Torture and Cruel, Inhuman or Degrading Treatment or the Convention on the Status of Refugees, at least the same holds true for Musharraf’s moves against “Islamic extremists.” It is also clear that the pressures on Musharraf have also had an impact on his principal ally, the United States, which has been understandably embarrassed by this case study into how not to advance the cause of democracy in the Islamic world.
The Bush Administration is within its rights to pressure Musharraf to lift martial law and restore the rule of law, and not merely because what happens in Pakistan obviously matters to U.S. security or because the United States has supplied that country with some $11 billion in aid since 9/11. President Bush should try to persuade Musharraf to do the right thing because given the U.S.’s support, the United States might be regarded as complicit it whatever its money has enabled.
And although the Bush Administration’s own legal black holes make it a less credible advocate on behalf of the restoration of the rule of law and in furtherance of respect for human rights than it once was, the United States is not disabled from making the case. Although Musharraf has deployed rhetoric suggestive of that deployed by the Bush Administration since 9/11 and he has even compared his actions to those of Abe Lincoln during the U.S. Civil War, such comparisons do not withstand scrutiny. President Bush has not suspended wholesale the U.S. Constitution, declared martial law, or disbanded its Supreme Court. Indeed, the actions of U.S. courts, most recently in Hamdan v. Rumsfield, continue to affect the Administration’s post 9/11 actions and have increasingly required the Administration to turn to Congress for its acquiescence. The President’s political opponents have not been jailed but some of them are, on the contrary, engaged in a lively Presidential electoral campaign that is still a year away.
Nor is it plausible for Musharraf to compare himself with Lincoln. As Diane Amann has noted in this recent posting in IntLawGrrls (see http://intlawgrrls.blogspot.com/search/label/Pakistan), Lincoln’s actions in the midst of the bloodiest conflict in U.S. history did not approach those of Musharraf; Lincoln did not dismiss Justice Roger B. Taney even though Taney disagreed with him on the suspension of habeas corpus. Musharraf’s invocation of Lincoln is also misplaced precisely because contemporary values have been fundamentally altered by international law.
Musharraf’s actions today are subject to the critiques of lawyers everywhere (see above letters and petitions) precisely because of the promulgation of ever more detailed international law standards directly on point. Musharraf’s actions lack legitimacy because in today’s world, it is increasingly clear what is meant by “human rights” and the limits applicable to their derogation, by a “free and fair” election, and by an “independent” judiciary.
Thanks to ever more detailed human rights agreements and the views expressed by regional human rights tribunals as well as international legal experts (as within the Human Rights Committee), the world knows what it means to fully respect rights of assembly and association, especially on the eve of a significant election. We now expect countries that claim to be democracies to tailor any declarations of national emergencies to the precise threats posed and to limit their suspensions of civil liberties under a proportionality analysis and temporally – as is demanded by article 4 of the ICCPR. These limits apply no less to non-ICCPR parties (like Pakistan) under ever more exacting customary international law standards.
Thanks to substantial experience with electoral supervision by the UN and its peacekeepers, the right to political participation contained in Article 21 of the Universal Declaration of Human Rights has undergone considerable normative development. States that claim to be “democracies” need to adhere to certain process-based procedures if they expect to be treated as legitimate democracies. These include assurances that voters and candidates will be free from intimidation for all phases of an election, that political rallies are permitted, and that all parties and candidates have access to the media.
The UN certifies an election as “free and fair” only when there is no effective elimination of a segment of the population from the voting process. Thanks in substantial part to international law, we now understand that a genuinely “free and fair” election requires, among other things, a comprehensive voter registration process that reaches all segments of the population, an effective judicial system that can address complaints from both voters and candidates, open access for competing parties, a vibrant and independent media that permit access to competing views including through equal access to advertising and to television or radio time, adequate polling procedures, and neutral and fair counting procedures.
As we know from recent experiences within the United States, achieving all of this even in the context of a wealthy nation with a fully functioning independent judiciary and independent media is hard enough. The world knows that it is impossible to secure any of these goals – and therefore a free and fair election -- under martial law. The age of global governance that has brought us this robust definition of what is a “free and fair election” makes it increasingly untenable for anyone to claim – as does Musharraf – that an election can be conducted while political opponents are detained, rallies by such opponents are banned, only “approved” judges can sit on the Supreme Court, and journalists face fines or imprisonment for saying the wrong thing.
As brave Pakistani lawyers have affirmed since this crisis began, we know more than ever before that the rule of law also requires a vibrant legal profession. As affirmed by the Canadian Bar Association’s “Statement of Core Principles of the Legal Profession,”
“The legal profession throughout the world, in the public interest, is committed to these core principles:
(1) An impartial and independent judiciary, without which there is no rule of law; (2) An independent legal profession, without which there is no rule of law or freedom for the people; (3) Access to justice for all people throughout the world, which is only possible with an independent legal profession and an impartial and independent judiciary.
And that these core principles shall not yield to any emergency of the moment.”
As I have addressed in a prior column, see ILPost of Dec. 21, 2006 at http://asil.org/ilpost/president/pres061221.html, the age of rights has also elaborated what we expect of judges. As affirmed by the Bangalore Principles of Judicial Conduct endorsed by ECOSOC in 2006, see principles at http://www.ajs.org/ethics/pdfs/Bangalore_principles.pdf, the rule of law requires judges to be able to defend it through their independence, impartiality, integrity, propriety, equality, and competence. The most fundamental of the Bangalore Principles is the ability for judges to exercise their judgment “independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.” (Value 1.1., Bangalore Principles.)
Given the dense profusion of relevant standards, hard and soft, Musharraf’s claim that his country can conduct a “free and fair” election in the midst of martial law and with a hand picked set of new judges sitting on its Supreme Court lacks credibility. While international lawyers have no direct means to enforce these standards, the mere existence of such standards is a standing rebuke to those who would ignore them.
As of this writing, media reports assert that “heavy political pressure” is being brought to bear on Musharraf and that this pressure appears to be having some effects on the most draconian aspects of martial law in that country. International lawyers can take some comfort in the knowledge that at least some of that “political” pressure is grounded in international law.
 Pakistan’s acceptance of the Court’s article 36(2) is conditioned on the following declaration: “Provided, that the declaration shall not apply to: (a) Disputes the solution of which the parties shall entrust to other tribunals by virtue of agreements already in existence or which may be concluded in the future; or (b) disputes relating to questions which by international law fall exclusively within the domestic jurisdiction of Pakistan; (c) Disputes arising under a multilateral treaty unless (i) all parties to the treaty affected by the decision are also parties to the case before the Court, or (ii) the Government of Pakistan specially agrees to jurisdiction; and provided further, that this Declaration shall remain in force till such time as notice may be given to terminate it.”
See, e.g., Gregory H. Fox, “The right to political participation in international law,” in Gregory H. Fox and Brad R. Roth, Democratic Governance and International Law 48 (2000).
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