Egypt, Tunisia, Libya, Ivory Coast, Iran
2011 is beginning to look like a year of contagious revolution–something like 1848 in Europe.
Egypt and Tunisia have overthrown dictatorial regimes in the last two months, and now the battle is joined in Libya–with the outcome hanging in the balance.
The U.N. Security Council has passed a resolution referring the matter of crimes against humanity and war crimes allegedly committed by Moammar Qaddafi and other Libyan government officials to the International Criminal Court in the Netherlands. The ICC announced on March 3, 2010 that it had opened an investigation.
The ICC should also investigate new allegations by the former Minister of the Interor of Libya that Col. Moammar Quddafi personally ordered the Lockerbie bombing in 1988.
In Ivory Coast, drawn out mediation by regional leaders has done little to remove Laurent Gbagbo from power, despite universal conclusions by outside observers and international organizations that he lost the recent elections to his opponent, Assanne Ouattara.
In Iran, opposition leaders Mir Hossein Mousavi and Mehdi Karroubi have reportedly been arrested, as “the Green Movement” shows renewed signs of life, in streeet demonstrations in the face of strong repression by state security officials.
The Universal Struggle for Democracy
The struggle for democracy is universal, based on universal ideals and principles of the United Nations Charter and international human rights law, including treaties to which the overwhelming majority of nations, of “states” as they are known in international law, are parties. Governments are bound under international law by treaties to which they are parties, including the United Nations Charter and the authority invested in the Security Council by the Charter. They are also bound by norms of customary international law, which increasingly includes guarantees of basic human rights including the rights to participate government and in free elections.
But the tide of freedom, while rising, also ebbs and flows. In any specific country, there is no guarantee that democratic government, once achieved, will never be lost. There is nothing inevitable about democratic government. That is why the struggle for democracy is a continuing struggle, not only to advance the cause of freedom where it does not exist but also to resist its reversal where it is eroding. Events in the last few months, offer illuminating examples of these precepts.
“Freedom” is in the air in Tunisia, after the first popular revolution in an Arab state in decades toppled the government of Ben Ami in Tunis, following 23 years of authoritarian rule and widespread corruption at the highest levels.
In Lebanon, Hezbollah withdrew in January from the unity government of Sa’ad Hariri, among thinly-veiled threats of civil war, if the government of Lebanon does not break ties with the U.N. International Tribunal for Lebanon, established by the Security Council to investigate and try those responsible for the assassination of Hariri’s father, Rafiq Hariri, in 2005. Hezbollah is militating against the United Nations Security Council, international law, and the tribunal established by the Security Council because, according to reports, it fears the Tribunal will issue indictments against Hezbollah members in the coming days or weeks.
The Tribunal itself has a statute which establishes due process of law for the hearing of the charges which may be brought by the Prosecutor of the Court. Hezbollah is arguing, if effect, that the Court is biased before any judicial proceedings against its members are initiated, and without regard to the fact that they will have a chance for a fair hearing, the questioning of evidence and of witnesses, in any proceedings that might be brought. With black shirts menacing and threatening to take physical control of West Beirut and large parts of the country, Hezbollah has positioned itself as an anti-democratic force opposed to the struggle for the rule of law within Lebanon, and one opposed to the United Nations, the Security Council and international law.
Outside parties have rushed to mediate. A Saudi-Syrian initiative has now been replaced by a Qatari-Turkish mediation effort. Democracy is in the balance.
What is at stake is the authority of the U.N. Security Council, the United Nations Charter, and international law. If Hezbollah can halt the cooperation of the government of Lebanon with of the STL by threats of civil war and dividing the country in two, its success would not bode well for the future of the International Criminal Court or other international tribunals that might be established in the future to deal with issues such as the Hariri assassination or issues of transitional justice.
In Ivory Coast, following democratic elections in which the opposition candidate, Alassanne Ouattara was clearly the winner, the incumbent Laurent Gbagbo refuses to leave power. The United Nations, the Organization of West African States, and many countries have taken the position that the true results of the elections must be honored, and Gbagbo must step down.
Neighboring states have undertaken mediation efforts, but matters stand at a stalemate as of today, with the potential for renewed violence and civil war very great. Democracy is in the balance.
The situation is becoming more explosive. Six women demonstrators were reportedly killed by Gbagbo forces on March 3, 2011. A return to civil war looms.
In Bolivia, Evo Morales, the first indigenous president whose MAS movement has a two-thirds majority in the congress, has moved systematically to dismantle the independence of the courts and to neutralize his political opponents, including four ex-presidents and numerous officials in their governments, by threatening or bringing legal action against them for acts carried out while they were in power. Through a law passed by his two-thirds majority in Congress, and a new Constitution which is now interpreted by judges he has appointed without any checks and balances, he now appears to use the legal system and the threat or bringing criminal and other charges against his opponents to muzzle the democratic opposition in Bolivia.
While seemingly leading this assault on the rule of law within Bolivia, nonetheless, he has sought to position Bolivia and his government as champions of the international Green Movement. That movement, whose members tend to be strong supporters of fundamental human rights, including the rights to participate in government, freedom from ex post facto laws (nulla poena sine lege), and the right to a fair trial before an independent judiciary, have been extremely slow to turn their spotlight on the systematic violations of human rights in which the government has engaged.
Here, there are strong echoes of the silence of the French Communist Party in the face of the Soviet and Warsaw Pact invasion of Czechoslovakia in 1968, and human rights abuses of communist governments in Eastern Europe and the Soviet Union more generally. This silence was brilliantly illuminated by Costa-Gavras in his 1970 film, ´The Confession” (“L’aveu”).
Spain is a very special case because the country is a member of the European Union and also a party to the European Convention on Human Rights. The decisions of the European Court of Justice applying EU law are binding on the members of the Union. Part of this law is contained in “ the general principles of law” which the European Court of Justice and inferior courts apply. Increasingly, these have been held been held to include basic human rights. More directly, the European Court of Human Rights applies the provisions of the European Convention on Human Rights in cases which come before it. Its decisions have binding effect in individual cases and enormous authority as case law or jurisprudence within countries that have ratified the Convention, including European nations and, in particular, Spain.
Consequently, Spain is less at risk of deviating in a fundamental and lasting way, from the fundamental precepts of democracy and the rule of law. Nonetheless, the Supreme Court of Spain has allowed the instruments of justice to be employed to violate the rights of a crusading investigating magistrate, Baltasar Garzón, forcing suspension from his position and threatening him with a penalty that would end his career.
What is particularly interesting about the Garzón case is that the Spanish Supreme Court has allowed the threat of removal from office to hang over Garzón, while both delaying his trial and rejecting motions by his lawyers to throw out the case—despite the fact that it is manifestly unfounded. Garzón’s position is supported by the Public Prosecutor’s Office (Office of the Attorney General).
Even more remarkable is that the charge against Garzón, prevaricación” (willful decision against justice) is, acccording to reports, precisely one of the key instruments the government of Evo Morales has used—the offense known in Bolivia as “prevaricato”–to remove judges and other officials or to threaten them in order to force them to resign.
So there is a connection between the Garzón case in Spain and the dismantling of an independent judiciary and the judicial attack on its opponents apparently being carried out by the Morales government. in Bolivia. That connection is the abuse of judicial authority in order to stifle opponents, whether judges or former presidents.
In Spain, as in Bolivia though not to the same extent, democracy and the rule of law are in the balance.
The Trenchant Observer
Comments are invited.
For related and more recent articles on the struggle for democracy in Libya and elsewhere, see:
Repression in Syria, and the spread of universal ideals throughout the world
May 11, 2011
Negotiating with War Criminals? Obama’s Debacle in Libya — Update #7 (May 4)
May 4, 2011
If Misrata falls…: Obama’s debacle in Libya– Update #6 (May 2)
May 2, 2011
Fierce Artillery Attacks on Misurata: Obama’s Debacle in Libya — Update #5 (May 1)
May 1, 2011
NATO Impotent: Obama’s Debacle in Libya — Update #4 (April 28)
April 29, 2011
The Human Cost: Obama’s Debacle in Libya — Update #3 (April 26)
April 26, 2011
Obama’s Debacle in Libya — Update #2 (April 23)
April 23, 2011
Obama’s Debacle in Libya — Update #1 (April 22)
April 22, 2011
Obama’s Debacle in Libya
April 21, 2011
Libya — “All necessary measures”
March 29, 2011
Current military actions in Libya
March 26, 2011
“Analyst-in-Chief” muddies waters; “Commander-in-Chief” cannot be found
March 22, 2011
Shooting Straight About Military Operations in Libya
March 21, 2011
While Carthage Burns, Obama Dithers
March 14, 2011
Zawiyah–Qaddafi’s victory, but stories will be told
March 10th, 2011
Libya—America Abdicates Global Leadership in Struggle for Democracy
March 10th, 2011
Zawiyah 2011 = Srebrenice 2005
March 8th, 2011
Libya and “The Audacity to Act”
March 6, 2011