Indonesia Needs Room to Manoeuvre

The Australian Government has asked Indonesia to spare the lives of convicted drug smugglers Andrew Chan and Myuran Sukumaran. The two Australians are currently on death row, convicted of smuggling heroin at the resort island of Bali. On what grounds should the lives of these criminals be spared?

Well, apart from arguments in mitigation citing good conduct and apparent repentance whilst in prison, the appeals for clemency appear to turn on four points: 1) Australia believes that state-sanctioned execution is barbaric and should not be done; 2) the individuals concerned are Australian citizens, 3) the Australian people will generally be upset if the two men are killed and this could pressure the Australian government to cool relations with Indonesia, and 4) other governments will dismiss as hypocrisy any future call for Indonesians to be spared the death penalty in foreign countries.

Are any of these arguments likely to prevail? No, they are not.

Indeed, any slim chance of leniency was diminished considerably by the comments of Australian Prime Minister, Tony Abbott, in reminding Indonesia of the one billion dollars given by Australia as tsunami aid. If the Australian Government wanted to limit the options of President Joko Widodo, known as Jokowi, essentially tying his hands on this issue, their loud and insistent ‘diplomacy’ could not have done a better job.

Standing rock solid against Australia’s opposition to capital punishment is Indonesia’s determined, “anti-colonial” resistance to “interference” in their judicial processes and their unwavering assertion of sovereign independence. Last month, Indonesia executed six convicted drug traffickers — five of them foreigners from Brazil, Malawi, the Netherlands, Nigeria and Vietnam — by firing squad. President Jokowi has said that he intends to show no mercy in his war on drugs, which he claims are killing up to 50 Indonesians a day.

Two weeks ago, the Guardian newspaper reported that Indonesia’s foreign minister, Retno Marsudi, stressed that application of the death penalty is in accordance with due process, “The death penalty is part of the law of Indonesia,” she said. “It is implemented as a last resort for the most serious of crimes. The decision is taken by our judicial system, which is independent and impartial.” Marsudi also said that Indonesia’s fight against drugs had entered a “critical stage” and that drugs had “ruined the lives of many hardworking Indonesians”.

However, Rafendi Djamin, who represents Indonesia on the ASEAN Intergovernmental Commission on Human Rights, argues that official corruption is part of Indonesia's drug problem. That corruption, he adds, also raises the possibility of fatal miscarriages of justice when the death penalty is applied, "There are very serious flaws in our judiciary. We are still working on it. And with this flawed judiciary, you believe you are not, you know, killing the wrong people? This is the tragedy of our society now."

Presumably, Indonesian President Jokowi, Foreign Minister Retno Marsudi, and the Attorney General, Muhammad Prasetyo, all know this, and yet Indonesia’s Attorney General declared on Friday that “nothing whatsoever” could stop the execution of Andrew Chan and Myuran Sukumaran from going ahead, promising they would face the firing squad as soon as possible. Why?

Perhaps to answer this question we need to examine the political situation in Indonesia. President Jokowi enjoys popular support but is possibly the politically weakest post-Suharto president. He is not in control of his own party, and his ruling coalition does not control a majority in parliament. At present, President Jokowi's Indonesian Democratic Party of Struggle, or PDI-P, along with its four smaller allies, have about 44% of the seats. In October 2014, his opposition in the Presidential elections, Lieutenant General (Rtd) Prabowo's coalition used a change to the law and its parliamentary majority to install its own man as speaker. It then took control of all of parliament's influential committees.

In such circumstances, any weakness shown by Jokowi or suggestion that he kowtowed to Canberra over the fate of the drug smugglers would be detrimental to his political standing.

The death penalty for drug smuggling is reportedly popular in Indonesia. Also, Indonesian public sentiment has shown very little tolerance to external ‘interference’. Put simply, President Jokowi cannot afford to meet the Australian request on this issue. He would lose too much face and so would Indonesia.

Presumably, the Australian Government, teeming with SE Asian ‘experts’ would know this. Why then pursue such an approach? The louder Australia appeals and more insistent it becomes, the less the Indonesian President is able to agree. We might conclude that the Australian rhetoric is directed primarily at a domestic Australian audience.

However, Jakarta has sent a typically Javanese message to Canberra that it would prefer not to let this issue lead to a serious rift. A spokesman for Indonesia’s Attorney General said that transfer of the Australian prisoners to Nusa Kambangan for execution had been delayed because the prison is not yet ready. The seemingly inevitable has been postponed probably until next month.

If the Australian Government genuinely cares for the fate of its two imprisoned citizens, perhaps a new and completely different strategy is needed. An Asian approach would be for the Prime Minister to declare publicly that Australia “respects Indonesian sovereignty” and “the independence of the Indonesian judiciary”. Whilst Australia and Indonesia disagree on the use of capital punishment, Australia would “never seek to interfere in the internal affairs of its close and dearly valued neighbour and friend”.

He might then proceed to request that consideration be given to examining the premise behind the death penalties to test whether indeed there is any evidence anywhere in the world that the death penalty actually reduces the incidence of drug-related crime. Australia would be honoured to provide financial support for such a study, which could be undertaken by Indonesian experts with the assistance of the ASEAN Secretariat or Asian Development Bank. Indonesia and many other countries would benefit greatly from such a study.

In private, the Australian Prime Minister could also explain that as an act of friendship and with no conditions attached, Australia would be humbled and deeply grateful were the execution of its citizens and others on death row for drug crimes to be postponed until completion of the study.

This would possibly, just possibly open the door for Indonesia to make up its own mind on this question without any hecklers in the gallery trying to force their hand. Sadly, too many words may already have been spoken in public for such an option. But at least this approach might give the Indonesian President room to manoeuvre without loss of face for himself or his country.

Published in The Malaysian Insider, 23 February 2015

Law of the Sea or Law of the Jungle?

My thanks to Juita Ramli for her insightful contribution to this piece.

Recently, I was invited to Hong Kong to participate in a discussion with eminent scholars on the topic of fisheries management in the South China Sea.

In order to broaden our perspective, a dear friend and highly respected Chinese professor kindly talked us through Chinese claims in the South China Sea. Her summary of the salient issues accurately captured the thrust of the arguments put forcefully and frequently in the public domain by government officials and commentators of the People’s Republic of China.

It also helped to explain actions such as the lodging of a complaint by China this week with the United States over a surveillance aircraft that flew over parts of the disputed South China Sea. Chinese Foreign Ministry spokeswoman, Hua Chunying, was reported to have said on Monday, "Freedom of navigation and overflight by no means mean that foreign countries' warships and military aircraft can ignore the legitimate rights of other countries as well as the safety of aviation and navigation."[1]

However, in hearing these arguments yet again in Hong Kong, I was struck by the most telling obstacle to resolution of contending claims in the South China Sea; namely, that seemingly creative, convenient interpretations and distortions of international law are used to support these claims, sometimes in the context of ambiguous guidance from vague wording of the United Nations Convention on the Law of the Sea 1982 (LOSC).

In November 1967, Dr. Arvid Pardo of Malta made a speech in the General Assembly of the United Nations calling for demilitarization of the seabed and recognition of its resources as “the common heritage of mankind”.[2] This seminal speech began a process that led to the third UN Conference on the Law of the Sea (UNCLOS III) and eventually to the LOSC.[3] UNCLOS III involved over 150 States in negotiations that spanned a period of more than 14 years.[4] In the Preamble to the LOSC, these States declared, amongst other things, that they desired “to settle … all issues relating to the law of the sea” and wished to establish “a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.”[5] China and other South China Sea claimant States were active participants in UNCLOS III, often at the head of the Group of 77 developing countries.[6]

UNCLOS III was an ambitious endeavour; it was the first time that the community of nations had come together to establish a comprehensive global order of law for the seas and oceans. They succeeded in part by navigating around issues that threatened to sink the process with language in certain crucial areas that allows ambiguous interpretation or by remaining silent on some contentious topics. The use of voting was set aside in favour of achieving consensus. Nevertheless, the LOSC provides many unequivocal international rules that appear to be under challenge now through the arguments and conduct of States in the South China Sea.

For example, certain claimant States stubbornly cling to a misunderstanding or deliberate misrepresentation of the relationship between land and maritime sovereignty. Land sovereignty gives rise to maritime sovereignty and sovereign rights; it does not work the other way around. However, we frequently see language suggesting otherwise, e.g. "Brunei claims at least two islands which are situated in its exclusive economic zone."[7] If indeed the features are "islands" and not "rocks which cannot sustain human habitation or economic life of their own" (LOSC Art 121), and Brunei enjoys sovereignty over the islands, then by definition, they must lie within Brunei's EEZ because they give rise to that EEZ along with territorial sea, contiguous zone and continental shelf "determined in accordance with the provisions of [the LOSC] applicable to other land territory" (LOSC Art 121[2]).

Equally, we are frequently told that "China's and Taiwan's claims within the 'U-shaped dotted lines' in the South China Sea overlap to varying degrees with claims to EEZ and continental shelf areas made by (...other coastal States)".[8] For China or Taiwan to enjoy maritime sovereignty or sovereign rights in the South China Sea, they are required to demonstrate the legitimacy and effectiveness of sovereignty over land adjacent to, or situated in (i.e. at least as "islands") the South China Sea. There is no international legal principle that I know of to support a general claim of sovereignty or sovereign rights over an area of sea that in some way gives rise to entitlement over land. And yet, such discourse is repeated over and again as if it enjoys merit under international law.

Some academic papers also purport to make a case of ‘historic title’ and acquiescence to the ‘dotted line’ claim by South East Asian states, often newly emerging with weak institutions from colonialism and the ravages of war, with whom such maps and claims were not formally lodged. I am reminded in this regard of the comedy play by Douglas Adams, 'The Hitch-hiker's Guide to the Galaxy', where the Captain of a Vogon planet-demolition spacecraft that is about to destroy Earth says, "There's no point in acting all surprised about it. All the planning charts and demolition orders have been on display at your local planning department in Alpha Centauri for fifty of your Earth years so you've had plenty of time to lodge any formal complaints and it's far too late to start making a fuss about it now."

In addition, principles of historic title that apply to sovereignty over land appear to be extended without qualification to areas of ocean space, with LOSC Article 15 distorted to discount a requirement first to establish that a claimant State in a territorial sea boundary delineation process actually has sovereignty over land giving rise to a territorial sea at all.[9] Spheres of influence, whether at land or sea sit more comfortably with principles of 'suzerainty' than with the modern legal principle of 'sovereignty'.

China and the other claimant States of the South China Sea have ratified the LOSC. Article 309 of the LOSC states, “No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.” In other words, the LOSC is a “package deal”, it’s all or nothing. States cannot ‘cherry pick’ the rights and obligations of the LOSC that they find convenient or advantageous. This is reinforced by Art 310 that provides, “Article 309 does not preclude a State, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State” (emphasis added).

If indeed China is confident of arguments under the principle of ‘historic title’ – and we must allow that a comprehensive case on South China Sea sovereignty has neither been put nor decided upon by any international juridical body – why would it not agree to allow a ruling on the question of sovereignty over claimed islands in the South China Sea by the International Court of Justice (ICJ)? With such questions resolved, the delineation of maritime boundaries in the South China Sea could proceed with greater clarity through the processes and rules provided in the LOSC.

Also, discussion of the Spratly and Paracel group of islands, reefs and cays is often coined in terms of them being "archipelagos" (which of course they certainly are called in Mandarin, ie. 'qundao' - [群岛 pronounced 'choondow']). Technically, an argument based on historical usage of the term 'archipelago' might perhaps be attempted, especially with reference to the Chinese names of Xisha Qundao  (西沙群岛 pronounced “c-sha choondow”, ie,  western archipelago) and Nansha Qundao (南沙群岛 southern archipelago).

Setting aside the contentious issue of which features in these areas actually satisfy the criteria of being an island, the LOSC Art 46(b) stipulates that an archipelago means "a group of islands, including parts of islands, inter-connecting waters and other natural features which are so closely inter-related that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such."

However, the concern in accepting a description of the two groups as "archipelagos" is the possible confusion that arises when connecting baselines are claimed between such features that resemble "archipelagic baselines", e.g. those claimed by China in its Territorial Sea Law (May 1996) for the Paracel Islands (Xisha Qundao). These land and reef features do not satisfy the ratio of water to land area required for the application of archipelagic baselines by LOSC Art 47(1). Moreover, such groups are clearly not "a fringe of islands along the coast in its immediate vicinity" as they would need to be to allow the use of "straight baselines" (LOSC Art 7). Therefore, we are left unclear as to the claimed status under international law of the Paracel Islands' connecting baselines, and thus also the waters contained within them. A legitimate concern might be that usage of the term "archipelago" subtly conditions opinion in a manner that paves the way for application to the Spratly Group of connecting baselines similar to those already claimed for the Paracel group. The potential consequences for the maritime sovereignty and sovereign rights of other littoral States to the South China Sea of any such future claim by China would be significant and worrying indeed.

Often, in general reporting and even academic discussions, satisfaction of three criteria is said to be necessary for a Spratly feature to be accepted as an island, i.e. "size, human habitation and economic life".[10] The LOSC Art 121 does not directly stipulate a criterion of size, but certainly supports the latter requirements of an ability to sustain human habitation and economic life of their own for an island to generate an EEZ or continental shelf. However, the LOSC also states explicitly that an island is "a naturally formed area of land, surrounded by water, which is above water at high tide" (emphasis added). Certain drying reefs and other shallow-water features of the Spratly Group have been built up by claimant States in such a way that they now remain above water at high tide and are inhabited. Natural materials such as rock and coral pieces have been used to raise the 'islands'; thus, should we consider whether they are "naturally formed"? The extent to which such features might in the future give rise to claimed maritime sovereign rights remains to be seen.

Finally in this all too brief review of such a complex and comprehensive issue, I note the frequent assertion by China that "direct bilateral consultation and negotiation" appears to be preferred by South China Sea claimant States, and especially China, to resolve disputes. Indeed, China has steadfastly rejected third-party involvement, including judicial settlement, good office, mediation, conciliation, or multilateral negotiation.

From a realpolitik perspective, such a policy is eminently sensible for China, which is much stronger by any measurable criteria than any of the other claimant States. However, noting the important international legal principle of pacta tertiis nec nocent nec prosunt, (essentially meaning that a treaty or agreement cannot be binding, impose obligations or affect the rights of non-parties to that treaty), and the express prohibition in the LOSC of bilateral agreements that affect “the enjoyment by other States Parties of their rights or the performance of their obligations” (Art 311[3]), one is left wondering to what extent bilaterally negotiated agreements can resolve disputes that involve the interests, claims and rights of multiple parties.

The question of sovereignty, sovereign rights and jurisdiction in the South China Sea is a difficult topic. The overall impression left by reflection on the issues at hand is the importance of clarity in international law and discipline in application of that law. To this end, progress may depend as much on decisions made by bodies such as multilateral treaty Conferences of Parties (COPs) (or States Parties to LOSC), ICJ and the International Tribunal of the Law of the Sea (ITLOS) as it will upon the immediate outcome of negotiations between the claimant States.

To the extent that State practice in the South China Sea by virtue of precedent holds the potential to undermine the delicately crafted rule of international law over the seas and oceans of the world, the international community has a right to participate in this debate.

The choice is stark. Either we respect and preserve the international legal regime of the LOSC that was negotiated over many years and that established a codified law for the first time in human history over the seas; or we abandon this law in favour of the rule of power and assertion. Indeed, the choice threatens to become one of ‘law of the sea’ or ‘law of the jungle’.

In that context, we would do well to remember one final article from the LOSC; Article 301 stipulates, “In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.”

[1] ‘China lodges complaint with U.S. over spy plane flight’ (Beijing: Reuters, 25 May 2015) See: http://www.reuters.com/article/2015/05/25/us-southchinasea-china-usa-complaint-idUSKBN0OA0DY20150525
[2] UN Doc. A/C.1/PV.1515(1967)
[3] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 21 I.L.M.  1261 (hereafter cited as LOSC). The text is reprinted in The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea, with Annexes and Index (New York: United Nations, 1983), 1-157.
[4] B. Zuleta, ‘Introduction’ in Law of the Sea. ixx.
[5] LOSC, Preamble
[6] “The Group of 77 (G-77) was established on 15 June 1964 by seventy-seven developing countries signatories of the “Joint Declaration of the Seventy-Seven Developing Countries” issued at the end of the first session of the United Nations Conference on Trade and Development (UNCTAD) in Geneva.” See: http://www.g77.org/doc/. Accessed 27 May 2015.
[7]  Jianwei Li and Ramses Amer, ‘Recent Practice in Dispute Management in the South China Sea’. Paper discussed at Maritime Energy Resources In Asia conference, August 5-7, 2010, Ho Chi Minh City.
[8] Loc. cit.
[9] Li Jinming & Li Dexia (2003) ‘The Dotted Line on the Chinese Map of the South China Sea: A Note’, Ocean Development & International Law, 34:3-4, 287-295
[10] Loc. cit.

Return of the Middle Ages?

With collapse of the Roman Empire around 500AD, there followed a medieval era commonly called the ‘Middle Ages’ or the ‘Dark Ages’. This era corresponds roughly with the period of dominance in Eastern Europe and Western Asia of the Byzantine Empire, which lasted until the late 15th Century. Traditionally, historians observe that the Middle Ages ended with The Renaissance, to be followed by the glorious Modern Era, and its philosophical epitome in the 18th Century ‘Enlightenment’ and ‘Age of Reason’. Now, we live in an era of technological and scientific wonder, very much remote from the Middle Ages.

Or do we?

The Middle Ages were feudal times when the rich and powerful were above the law. They were the law. How convincingly has this notion been left behind?

Moreover, for those who could do so, people in the Dark Ages lived behind castle walls guarded by private armies. They ventured out into public space beyond the gates to cultivate fields and engage in commerce during the day, but returned to the safety of castles at night. Anyone living outside of the castle was potentially subjected to the ravages of bandits and depredations of lawlessness.

Today, the thick stone walls of castles are gone but as we increasingly confront gated communities, and fenced, patrolled condominiums, I wonder if the ramparts, drawbridges and castles of yore have simply been replaced by electronic detection devices and cameras, razor wire, boom gates and private security forces? In addition, private security teams have been formed, barriers and fences erected, and the freedom of movement on public streets challenged in order to create new guarded havens within which people can sleep safely at night.

The open, planned boulevards with covered drains of early Roman cities, kept relatively peaceful and safe under the stability and rule of Pax Romani were replaced in the subsequent era of Germanic invaders – Ostrogoths, Franks, Visigoths and Vandals – by the narrow, meandering lanes and congested roads of medieval towns. Today, in many cities, as we navigate along narrow, pot-holed roads with no road-shoulder or footpaths, often constrained to impassable single lanes by double-parked cars or illegal hawker stalls, I wonder to which era our cities belong.

Of course, the question of whether the Middle Ages are returning has been raised before. In the 1980s, the eminent Italian professor of semiotics, Umberto Eco, published two essays, ‘Dreaming of the Middle Ages’ and ‘Living in the New Middle Ages’. In these essays, he notes an obsession with the Middle Ages in popular culture, including examples such as: the light-sabre sword fights between Luke Skywalker and the ‘black knight’ Darth Vader; book titles of Dragonquest, Dragonflight, A World Called Camelot, Dr Who and the Crusaders, and more that mix the Dark Ages and laser beams; “plus scattered items ranging from Celtic sagas, witchcraft, enchanted castles, and haunted dungeons to swords in the stone, unicorns and explicitly neomedieval space operas.”

Is this a dreaming of the long-past Middle Ages as suggested by Umberto Eco, or a reflection that in many respects, human societies have not in practice progressed far beyond the medieval era?

And before we dismiss this possibility on the grounds that the Middle Ages – as the ‘Dark Ages’ – are primitively remote from our present circumstances, we would do well to reflect upon Umberto Eco’s reminder that many of the problems and nascent achievements of the modern world emerged during the Middle Ages:

“Modern languages, merchant cities, capitalistic economy (along with banks, cheques, and prime rate) are inventions of medieval society. In the Middle Ages we witness the rise of modern armies, of the modern concept of the nation state, as well as the idea of a supernatural federation (under the banner of a German Emperor elected by a Diet that functioned like an electoral convention); the struggle between the poor and the rich, the concept of heresy or ideological deviation, even our contemporary notion of love as a devastating unhappy happiness. I could add the conflict between church and state, trade unions,… (and) the technological transformation of labour.”

In the Middle Ages, a period of great peace under the Roman Empire had broken down. It collapsed because “barbarians” crossed its borders, either violently or surreptitiously, bringing new ideas, customs and beliefs.

Some people have drawn a parallel between the fall of Rome and a decline in the era of Pax Americana. Once again, a Great Power has its armies embroiled in territories at the edge of its sphere of influence. Citizens of the Great Power no longer feel secure, and public discourse is dominated by the need to “fight” against “terror”. Medieval travel was unsafe .Travellers would encounter thieves, disease, wild animals and more. Today, travellers are subjected repeatedly to full body scans and extensive security checks, which are palpable reminders that travel in the modern era remains an adventure with an element of insecurity.

People in the Middle Ages, especially in the Tenth Century, also felt fear of apocalyptic destruction. These fears were fed both by superstitious predictions of doom associated with the end of the First Millennium, and the obvious deterioration of Roman roads, postal system and central control. The parallels today are not so much the ephemeral scares of the late Twentieth Century, such as the Y2K computer virus, but the more apocalyptic predictions of world destruction associated with global warming, ocean acidification, unchecked population explosion and Huntington’s clash of civilisations.

Importantly, to a certain extent, the fears of decay and destruction felt in the Middle Ages were justified. Cities and infrastructure did fall into decay and there were great destruction, plague and famine. Equally, today, the data and science on species and habitat depletion, atmospheric carbon concentration, human population numbers, and incidents of racist or culturally inspired violence are genuine reasons for fear.

So, how far has the world moved forward in 500 years since the end of the Middle Ages? After all, in the Middle Ages, there were many who believed that explorers to the Far East would encounter the Kingdom of Prester John where there lived strange beings who jumped about on only one leg and had mouths in their belly. Faced with the unknown, the fanciful imagination of the Middle Ages created mythical monsters and potentially hostile civilisations.

Laughable perhaps, but we might do well in our mirth to remember that today an alarming number of people honestly believe that aliens and people from other dimensions live amongst us. Indeed, since the Roswell UFO incident of 1947, there appears to have grown a popular consensus on what aliens look like (you know, high forehead, triangular head, large sloping almond-shaped eyes, small stature, slim bodies). And few believers in extra-terrestrial beings and UFOs doubt that they pose a threat to our civilisation.

In medicine too we remain surprisingly close to practices of the Middle Ages. The careful and objective approach of earlier Greek medicine was embellished in medieval times with superstition, prayer and hieratic prescriptions. The influence of evil spirits was recognised and effort devoted to driving out demons. The two approaches to medicine existed harmoniously, with patients referred between the practitioners of each as required.

Today, throughout the world, including developed states, there is a crisis of confidence in modern medicine. People frequently turn to faith healers and purveyors of elixirs, potions, pills, meditation, needles, candles and other claimed cures. In many cultures, the witch doctor or shaman remains a respected and legitimate recourse for those who are ill. In his book, ‘Wrong’, David H. Freedman suggests that people have good reason to distrust the accepted truths of science, most of which are subsequently shown to be incorrect and discarded over time.

Another trend of the Middle Ages was to venerate objects of religious significance or other strange curios. Cathedrals, princes and nobles of the time collected artefacts such as pieces of wood said to have come from the crucifixion cross of Jesus, the horn of a unicorn, the skulls of the Magi, the ring of St. Joseph, and even as Umberto Eco amusingly informs us, “the skull of St. John at the age of 12 (sic)”. However, in 2004, a ten-year old grilled cheese sandwich that was said to show the face of the Virgin Mary sold to a casino for $US28,000. Have we really come that far?

Heresy and deviant ideology in the Middle Ages was usually punished by death. In this regard, we can ask again to what extent we have actually moved on from the Middle Ages in practice. In 2011, 12 people, including seven UN staff, were killed in Mazar-i-Sharif, Afghanistan when Pastor Terry Jones from the Dove World Outreach Centre in Florida, America inexcusably and provocatively burned a copy of the Holy Quran. Death threats were also made after the Jyllands-Posten publication of cartoons depicting the Prophet Muhammad pbuh in 2006, and again against the Swedish artist Lars Viks for a similar act in 2007. As in the more primitive era of the Middle Ages, disrespect for religious belief alone appears in many places of the world to be offered as justification for the taking of life.

And as we come to the close of 2014, the London-based rights group Amnesty International reports that women have faced torture, rape, forced marriage and were "sold" or given as "gifts" to "Islamic State of Iraq and the Levant" (ISIL) fighters or their supporters in Iraq and Syria. In October 2014, Iraq's Independent High Commission for Human Rights documented victim testimonies that ISIL fighters sold and traded women and children captured in northern Iraq at slave markets in Ninawa province. In Africa, Fox News reports that "the hundreds of Nigerian girls kidnapped by Boko Haram could face a life of misery, as slaves or child brides sold for a pittance in markets across the globe".

And in USA, also in 2014, the slogan "I can't breathe" has been adopted to express frustration and opposition to the violence perpetrated by police against black people after unarmed Eric Garner, a 43-year-old father of six, was choked to death and a Grand Jury decided not to indict the police officer who killed him. Another Grand Jury also decided not to indict a police officer who shot and killed Michael Brown in Ferguson, Missouri, and a post mortem report released only days ago revealed that a 25-year-old black man, Ezell Ford, killed by police in Los Angeles was shot three times, including in the back at close range. How far have we progressed from an earlier era of slavery and the dehumanisation of those we consider to be 'the other'.

We could go on with examples of ways in which societies of today have not progressed in practice all that far from those of the Middle Ages. Despite the intellectual contribution of philosophers such as Voltaire, Montesquieu, Mill, Hobbes, Locke, Paine, and so, so many more, we remain perplexed by the same problems and respond to them in ways that are eerily similar to those of our ancestors in the Dark Ages. Perhaps in the future, the period around the end of the second Millennium will be known as the ‘Second Dark Age’? Is this how we want to be remembered?

Death of Osama: A Wyatt Earp Solution

Osama bin Laden preached a dogmatic, xenophobic message of hate and violence. He brought misery and fear into the world and his death will provide at least some comfort and closure to thousands whose lives were devastated by the terror he wrought.

But Osama was not arrested, tried, found guilty and punished for his crimes. Instead, he was gunned down in his bedroom during ‘Operation Neptune Spear’ by an anonymous member of the elite Navy SEALS Team Six. Crowds cheered in front of the White House. The soldiers concerned were praised by US authorities, including President Obama who had authorised and watched the operation live from cameras mounted on the SEALS' helmets.

In ensuing days, conflicting stories emerged of the final moments at Osama’s fortress compound in Abbottabad, Pakistan. However, the official version is that when commandoes climbed the stairs of the compound, they recognised Osama standing at the end of a hallway. He ran into his bedroom. The assault team assumed he was going for a weapon and quickly rushed in to find him behind two women who were yelling and trying to protect him. The women were pushed aside, and one of the raiders fired fatal gunshots into Osama’s head and chest. His 12-year-old daughter witnessed her father being shot.

An official said that Osama “didn't hold up his hands and surrender", and his retreat into the bedroom was considered a hostile act. Reportedly, an AK-47 assault rifle and a 9 millimeter semi-automatic Makarov pistol were found “near” to Osama. In other words, Osama bin Laden was unarmed and presumably could have been taken into custody using well-proven police arrest techniques.

A total of 79 elite commandoes and CIA operatives were deployed into Osama’s lair. From public accounts available of the incident, we have learnt that they encountered and killed one armed man and two others who were unarmed, including Osama’s son, before shooting Osama bin Laden. I find myself wondering why Osama at least could not have been taken alive to face judicial process for his part in the murders committed at the World Trade Centre in Manhattan, the Pentagon, and in the field at Stonycreek Township, Pennsylvania, where United Airlines Flight 93 eventually crashed. Not to forget the many other murders elsewhere in other jurisdictions that he is alleged to have planned and directed. Surely, the potential intelligence to be derived from interrogation of such a terrorist leader would have been invaluable?

The killing of Osama reminded me of comments made by the American folklore hero, former Deputy US Marshall Wyatt Earp to his biographer in 1926, "For my handling of the situation at Tombstone, I have no regrets. Were it to be done over again, I would do exactly as I did at that time. If the outlaws and their friends and allies imagined that they could intimidate or exterminate the Earps by a process of assassination, and then hide behind alibis and the technicalities of the law, they simply missed their guess."

As with the soldier who killed Osama bin Laden, Deputy US Marshall Wyatt Earp was confident that he was removing some particularly nasty bad guys from the world.

At about 11pm on 18 March 1882 in Tombstone, Arizona, Morgan Earp was playing billiards after returning from the theatre. Without warning, the silence of the night was shattered by shots fired into the billiard room from a dark alley. A bullet smashed through the door window and entered Morgan’s right side. Another round narrowly missed Wyatt Earp.

Morgan didn’t die straight away. Wyatt watched as his brother was carried to a nearby couch where he passed away in agony about 40 minutes later. The assassins had escaped in the dark, but Wyatt Earp had a pretty good idea who was behind the attack. A coroner's jury later identified the men suspected of killing Morgan as Frank Stilwell, Pete Spence (or Spencer), and three of Spence's employees — Indian Charlie, Frederick Bode and an unnamed man.

The assassination of Morgan Earp took place about five months after Tombstone City Marshall Virgil Earp and his brothers Temporary Assistant Marshall Wyatt Earp and Deputy Marshall Morgan Earp, together with Special Deputy ‘Doc’ Holliday, had gunned down three notorious cowboys in one of history’s most famous gunfights at the ‘O.K. Corral’. Morgan’s assassination also took place about two months after Virgil Earp, while walking between saloons in Tombstone, had been wounded by shotgun blasts from hidden assailants.

But with the killing of Morgan Earp, the cowboys had gone too far.

Morgan’s body was put on a train to be sent for burial at Colton, California. Wyatt and his friends guarded the train to Tucson, where they had heard that Frank Stilwell was waiting in ambush. The next morning, Frank Stilwell’s body was found lying on the railway tracks riddled with bullets. With funding from businessmen in Tombstone, Wyatt Earp put together a tough, heavily armed posse. They set out for Pete Spence’s wood camp, where they found and killed Indian Charlie. In a gunfight two days later, Wyatt Earp used a shotgun to kill another of the cowboy gang, Curly Bill Brocius. Wyatt had bullet holes in both sides of his long coat and in his boot heel. Wyatt also used his pistol during that gunfight to kill another cowboy, Johnny Barnes, and hit yet another in the arm. That was the end of the cowboy gang.

After the shootout at the O.K. Corral, and his pursuit and killing of those who attacked his brothers, Wyatt Earp was criticized repeatedly in the media for the remainder of his life. But Wyatt Earp was quietly congratulated at the time by business interests in Tombstone for helping to clean up the lawless cowboys. ‘Cowboys’ were not the same as ranchers or cattle-herders. In some ways, with their tendency to raid across the Mexican border to rob, rustle cattle and horses, and kill, cowboys were transnational criminals. Wyatt Earp's modern-day reputation is that of a tough, gun-slinging lawman in the Wild West. He has been portrayed in a number of films and books as a fearless Western hero.

As with those who were critical of Wyatt Earp’s methods, several prominent political commentators, human rights NGOs and UN officials have spoken recently against the practice of extra-judicial killing. The U.N. High Commissioner for Human Rights, Navi Pillay said of the Osama bin Laden killing, "This was a complex operation and it would be helpful if we knew the precise facts surrounding his killing. The United Nations has consistently emphasized that all counter-terrorism acts must respect international law." Pillay noted that had Osama been taken to court, "I have no doubt he would have been charged with the most serious crimes, including the mass murder of civilians that took place on 9/11, which were planned and systematic and in my view amounted to crime against humanity."

In certain cases, such as the assassination in London of KGB operative turned dissident Alexander Litvinenko by Putin’s Russia, extra-judicial killings are nothing more than state-sanctioned murder. But the lines between armed conflict and civilian crime have become fuzzy. Earlier this month, US Attorney General Eric Holder told members of the Senate Judiciary Committee that the U.S. raid on Osama bin Laden's compound was lawful "as an act of national self-defense." He claimed that Osama bin Laden "was the head of al Qaeda, an organization that had conducted the attacks of September the 11th … It's lawful to target an enemy commander in the field." So, was Osama bin Laden an ‘enemy commander in the field’ or an alleged international criminal in his home under Pakistani jurisdiction?

The “war on terror” is not really a war in the strict, legal sense of the word. Actually, states don’t “go to war” anymore. States and non-state groups “engage in hostilities”, “undertake security operations” or participate in “incidents”, but chaps don’t much march off to war nowadays. However, back when they did do so, there were grounds to suspend certain of the freedoms enjoyed during “normal” times of peace. For example, the US passed the Alien and Sedition Acts of 1798, and the Anarchist Act of 1918.

Nevertheless, a “war on terror” has been declared by the US. It is a war that possibly will be waged indefinitely because nobody has revealed the criteria to be satisfied in order to declare that terrorism has been defeated and the “war” won. Civil liberties that were suspended in times of war against another country were able to be restored when the war was over and peace returned. When will the “normal” state of peace from the threat of terror be restored? Might the “war on terror”, and associated diminution of civil liberties, be permanent?

In this potentially unending “war on terror”, a new category of ‘enemy combatant’ that is not recognised in international humanitarian law and that requires a lower level of evidential standards has been created under the US Military Commissions Act and US Patriot Act. The political commentator John Kampfner has described use of the ‘enemy combatants’ category as both “unconventional and unprecedented”. Enemy combatants can be held indefinitely, and some have been transferred under ‘rendition’ flights to countries where they were tortured to extract information.

Well, yes, but enemy combatants are bad people. And bad people, as made clear in the US Patriot Act, do not enjoy the same protection of civil liberties as law-abiding citizens. In October 2001, the Taliban Government of Afghanistan offered to hand over Osama bin Laden in return for a cessation of US bombing operations. One of their conditions was that the US provide evidence to support the claim that Osama was involved in the 9/11 attacks. President Bush rejected the offer saying, “there's no need to discuss innocence or guilt. We know he's guilty.” Who decides when a person has crossed the line and forfeits the right to be presumed innocent until proven guilty? John Ashcroft, the US Attorney General in the Bush Administration testified before the Senate that constitutional rights could be used as “weapons with which to kill Americans”.

In October 2001, the US Patriot Act passed with almost no debate. Amongst a number of measures - such as the extended use of wire-tapping - that diluted the protection of civil liberty in America, the Act authorised the unilateral and indefinite detention of non-citizens. For several months following the 9/11 attack, in an effort to round up terrorist suspects, approximately 80,000 people, mostly from the Middle East, were detained across the USA. In some cases, their families had no news of where they were taken, why, or for how long they would be held. Not one of these people was convicted of having committed any terrorism crime.

But US constitutional rights were created to protect individual Americans from tyranny, and reflected a standard of civilised conduct that the Founding Fathers believed to be universal. When I trained at the US Defence Intelligence Agency in the 1980s, we were briefed on the Declaration of Independence, US Constitution and Bill of Rights by officers who offered the principles they enshrine as the ultimate foundation for democracy and freedom. They hoped that other countries would follow in America’s footsteps to recognise and protect such rights. Might the suspension of constitutional rights in an effort to protect life and property kill the very ideal of America; ‘land of the free’? If so, then bureaucrats and politicians in Washington will have achieved a tragedy that no number of terrorist bombs and bullets could ever have accomplished.

According to The Economist, "The silence of the usual critics of 'illegal', 'extrajudicial', targeted killing in the wake of America's killing of Osama bin Laden might reflect hypocrisy, sure. But this can be tough to distinguish from resignation to the fact that Mr Obama didn't submit his case for executing Mr bin Laden to some global civil authority because there isn't one and he didn't have to—because America's the biggest kid on the block and, ultimately, what America says goes. And, if it comes down to it, Britain, France, Italy, Russia and other powerful governments hope America will indulge their own kill-squad adventures with similar approving silences. Of course, if some aggrieved faction in the future seeks retribution through the targeted killing of one of these countries' leaders, that will be raw vengeance, that will be terrorism, that will be an international crime, because, like it or not, that's how it works."

Individual liberty hangs by an ever tenuous thread made up in part by those “alibis and technicalities of the law” noted with disdain by Wyatt Earp. The moral foundation of the USA as the apogee of liberal democracy, and a beacon of freedom, would have been better served by bringing Osama before the courts and exposing his crimes in an open process of law. The decision to kill him and dispose of his body at sea risks sending a far less hopeful message that ‘might is right’.

Libya: An Offer That Can’t be Refused?

Over the past week, international affairs have unfolded in a manner reminiscent of Francis Ford Coppola’s 'The Godfather'. Osama bin Laden went down like Don Barzini. Unlike Moe Greene, Muammar Gaddafi, in his Libyan Las Vegas palace, narrowly escaped death but reportedly lost members of his family. One can almost imagine President Obama wearing a pin-striped suit with a carnation in the lapel, stoically participating in the christening of a nephew while the enemies of his country are systematically dispatched. This is a President who intends to be taken seriously.

However, perhaps parallels with the movie (and of course the wonderful book by Mario Puzo) are more cogent than might at first be imagined. Michael Corleone is taking revenge and sorting out threats to the ‘family’ business. Carlo, his brother-in-law, had played a part in the killing of Sonny, Michael’s brother, and needed duly to be garrotted. The other dons of the New York families were muscling in on Corleone business interests and regime adjustments were necessary.

Osama was not a business decision. He was Carlo and his death was a matter of justice for capital crimes committed. Just as Carlo’s death in The Godfather is really rather a straightforward and inevitable affair, so might be considered the demise of Osama. Now, I suggest, is also not a good time for any of Osama’s henchmen to loiter under street lamps on public corners.

But what of Gaddafi? This is more complicated; was the targeting of his family compound revenge or business? Can we accept at face value the words of justification offered by the British Prime Minister, David Cameron, “It is in line with UN Resolution 1973 and it is about preventing a loss of civilian life by targeting Gaddafi’s war-making machine. That is obviously tanks and guns and rocket launchers, but also command and control as well.”?

Let us accept that international efforts undoubtedly have lessened the violent suppression of Libyan citizens who dared to oppose Gaddafi and his family. A laudable outcome. However, not an outcome that would be any less desirable in Syria, where over 500 people reportedly have been killed, many in the southern city of Deraa, for opposing the rule of President Bashar al-Assad. Nor in Bahrain, where a ruthless persecution of protestors proceeds smoothly with only mild international calls for “restraint”... if you don’t mind please. Nor in Yemen, where protestors have been fired upon and killed. Need we mention the Democratic Republic of Congo and the fate of human rights advocates and activists such as Floribert Chebeya?

Moreover, why have governments been happy to lift sanctions and conduct business with Libya in recent years when it remained under the control of such a tyrannical ruler? Has Gaddafi only recently become somewhat unacceptable on the question of human rights? Well, his supporters might point to the Al-Gaddafi International Prize for Human Rights, which was established in 1988 by Muammar Gaddafi with a $US10 million grant to a Swiss-based foundation called North-South (the award was won in 2010 by Turkish Prime Minister Recep Tayyip Erdoğan).

However, Gaddafi’s detractors would no doubt embarrassingly recall numerous reports over several decades by Amnesty International on the disappearance and assassination of dissidents in Libya and throughout the world, including in Britain and the USA. Had Western governments forgotten about Pan Am Flight 103 that came down in Lockerbie, noting that Britain sent home on compassionate medical grounds Abdelbaset Mohmed Ali al-Megrahi, the convicted Libyan terrorist responsible for the bombing? Did they forget also Yvonne Fletcher, the British policewoman gunned down in 1984 by shots fired at anti-Gaddafi protestors from the Libyan People’s Bureau in London? For much of the last decade, all seemed to have been forgiven. Blind eyes and deaf ears no longer heeded reports of human rights abuse in Libya.

Now, that has all changed. UN justification for military intervention is focused on the need to protect civilians from a monstrous despot who is prepared to kill his own people to stay in power. But there are so many villainous, brutal governments around the world who happily slaughter their people while their envoys drive to UN meetings in plush limousines to be met at the door with smiles and a warm hand shake. Why such a forceful response in Libya now and not earlier, and why not elsewhere where civilians are being arrested, beaten and killed by State security forces? Did something change the game in Libya?

Perhaps, to understand what is going on we need to leave Libya and travel back in time to 1948 at the University of Chicago. There, an immigrant German professor called Hans Morgenthau published a book entitled Politics Among Nations. His thesis established the ‘realist’ school of international relations, which was to become enormously influential, especially amongst senior American decision-makers. Morgenthau argued that the actions of States will be governed by the importance of “national interest” defined primarily in terms of power. He wrote, "The statesman must think in terms of the national interest, conceived as power among other powers. The popular mind, unaware of the fine distinctions of the statesman’s thinking, reasons more often than not in the simple moralistic and legalistic terms of absolute good and absolute evil." This is not to suggest that any of the leaders who decided to intervene in Libya were acting only as a ‘political man’ with no genuine concern for the good people of Benghazi and other cities. Rather, Morgenthau’s thesis suggests that such heart-felt concern nevertheless would be unlikely to have galvanised into military action unless such efforts would ultimately advance the national interests of the intervening parties.

So, one explanation for the move against Gaddafi and his family might be that they took some decisions that were against the interests of the Western powers. You know, nothing personal, it’s just business. Or as Michael Corleone reminds us, “Never hate your enemies. It clouds your judgement”.

Intuitively, many people will knowingly nod their head an utter “It’s all about the oil”. Well, maybe, but what about it? Libya was happy to export its oil and could not unilaterally drive prices in a manner that was unfavourable to importing, industrialised countries. And besides, Libya had oil back when governments were content to relax sanctions and do business.

No. To understand a shift in international policy towards Libya, Morgenthau’s logic urges us to look back over the last few years to see if anything changed that might be detrimental to the national interest of the intervening powers.

And this brings us to the new ‘Exploration and Production Sharing Agreement – IV’ (EPSA-IV) petroleum contracts introduced by the Libyan National Oil Corporation (NOC) in 2005. Under the tough new agreements, 100% of exploration costs and 50% of production costs are to be borne by the international oil companies. However, these companies are to enjoy only a flat 12% of production share regardless of location. This is well below the minimum of 20% that most international companies would look for to ensure an adequate return to shareholders. Also, according to cables recently released by Wikileaks, in the second round of EPSA-IV bidding, international oil companies had each been forced to pay the Libyan NOC a compulsory US$1 billion “bonus” upon the signing of their respective contracts. In a recent Wall Street Journal article, the former president of ConocoPhillips in Libya (2005-2006) said the Libyan NOC EPSA-IV contracts “contained the toughest terms in the world”.

And the oil companies that had led the way earlier in development of Libya’s oil fields were not spared. In 2007, petroleum operators with older contracts that had been signed under more generous terms were also required to “renegotiate” under the new EPSA-IV provisions. Having spent millions on exploration, those companies were reluctant simply to walk away. According to Wikileaks cables, the international oil companies “have so far swallowed hard and signed up.”

Another factor that could be relevant is that the NOC kept Libya's bigger and mature producing fields off-limits to foreign investors, insisting that they remain in the hands of NOC subsidiaries such as Sirte Oil. Such a restriction closed the door on international oil companies for re-development, enhanced oil recovery, or production-sharing contracts for significant fields such as Sarir.

Taken in isolation, the new Libyan EPSA-IV measures were a nuisance but hardly likely to affect the global viability of oil majors. However, what if the new EPSA-IV terms were to be copied by other State-owned oil companies? Would that potentially harm the “national interest” of other industrialised powers? Also, might international oil companies have influence over senior decision makers in their home governments, and could they have used that influence to press such an argument?

Gaddafi presided over the introduction of the EPSA-IV contract, and under Gaddafi, the Libyan NOC took a tough, no compromise stand on its introduction. Maybe a grateful and struggling rebel government would be more reasonable? The National Transitional Council has already established the ‘Libyan Oil Company’. And even if there is no change in national oil and gas policy within Libya, might the example of “all necessary measures to protect civilians” be sufficient threat for other countries to think twice before following Libya’s tough new line on capturing national oil wealth? Perhaps, in the future, international oil companies need only bluster the sound “Gaddafi” whilst pretending to sneeze for the message to be understood, “we are making an offer that can’t be refused”?

“An offer he couldn’t refuse”…“What was that?” asked Michael Corleone’s wife Kay. Michael replied, “Luca Brasi held a gun to his head, and my father assured him that either his brains or his signature would be on the contract.”