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27 Sep

[Polina Levina is a masters in international law candidate at the School of Oriental and African Studies and Kaveri Vaid is an Institute for International Law and Justice Scholar at New York University School of Law.] Overview Recently, Human Rights Watch released a report detailing systematic practices of capture, torture, and rendition of members of the Libyan opposition by the United States Central Intelligence Agency.  At least...

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27 Sep

[Ozan Varol is Assistant Professor of Law at Lewis & Clark Law School.] This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below. I would like to thank David Landau, William Partlett, Brad Roth, and Joel Colón-Ríos for their kind words and insightful comments about my article, The Democratic Coup d’Etat, 53 Harv. Int’l L.J. 291 (2012). These scholars have been instrumental in enhancing our knowledge of constitutional transitions, and I very much appreciate the time they have taken to share their thoughts on my article. In this reply, I will first provide a brief summary of the article’s central claims and then respond individually to the comments. The article examines the typical characteristics and constitutional consequences of a largely neglected phenomenon that I call the “democratic coup d’état.” To date, the academic legal literature has analyzed all military coups under an anti-democratic framework. That conventional framework considers military coups to be entirely anti-democratic and assumes that all coups are perpetrated by power-hungry military officers seeking to depose existing regimes in order to rule their nations indefinitely. Under the prevailing view, therefore, all military coups constitute an affront to stability, legitimacy, and democracy. This article challenges that conventional view and its underlying assumptions. The article argues that, although all military coups have anti-democratic features, some coups are distinctly more democracy-promoting than others because they respond to popular opposition against authoritarian or totalitarian regimes, overthrow those regimes, and facilitate free and fair elections.
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27 Sep

[Brad Roth is Professor of Political Science & Law at Wayne State University.] This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below. Ozan Varol’s article, “The Democratic Coup d’Etat,” performs a crucial service in reorienting assessments of extra-constitutional changes in government so as to emphasize substance over form. He refutes the commonplace idea – most recently championed by Richard Albert – that coups are inherently and inevitably undemocratic and illegitimate, “Democratic Revolutions,” forthcoming Denver U. L. Rev. 89:2 (2012), at 20, and demonstrates that under some conditions, seizures of power by military elites may lay the groundwork for the establishment of liberal-democratic participatory processes. He does so without any naïveté about coup-makers’ agendas, fully acknowledging the distortions that even “democratic” putschists introduce into post-coup constitution-making processes in order to entrench prerogatives for the military and/or its favored constituencies. But as he notes, the coup leaders may actually fail at engineering such reserves of power – especially when they attempt it directly and overtly – because, as in the Portuguese case (and, one might hope, in the current Egyptian case), they set in motion democratic dynamics that they cannot contain. Varol’s account, however, replaces one exaltation of form over substance with another, reducing democracy itself to a narrow set of institutions and procedures that a coup may or may not work to promote. Such ascription is hardly unique to Varol – empirically-oriented political scientists tend to favor reducing democracy to elements that the tools of social science research can operationalize – but it neglects both the normatively loaded nature of the term and the extent to which competing conceptions of democratic ends animate political conflicts. See, e.g., Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman, Okla.: Univ. of Oklahoma Press, 1991), 5-13. Relatedly, Varol refers repeatedly to “the regime,” “the military,” and (most problematically) “the people” as unitary actors, whereas competing players frequently act in the name of these entities. (Instructive on the divisions within these groups is a book that Varol himself cites: Giuseppe Di Palma, To Craft Democracies: An Essay on Democratic Transitions (Berkeley: Univ. of Calif. Press, 1990), at 44-75.)
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27 Sep

[William Partlett is an Associate-in-Law at Columbia Law School and a Nonresident Fellow at the Brookings Institution.] This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below. The Democratic Coup d’Etat is an important article. First, and most obviously, this Article carries significant policy implications. The political transformations sweeping the Middle East and North Africa - known as the “Arab Spring” - have presented a wide range of conceptual challenges to policymakers and political scientists. Varol’s counter-intuitive argument that self-interested militaries might facilitate democratic transition in order to preserve their own position within the political system provides an important perspective on Egypt’s transformation. Although it is far too early to tell if the Egyptian military will remain an agent of democracy, Varol’s article puts the military’s actions in sharp focus. Recent developments have also added additional texture to Varol’s concept of the “democratic coup d’état.” Most relevant is the alliance between the military and judiciary that was on show in June when the Supreme Constitutional Court disbanded Egypt’s Muslim Brotherhood-dominated Parliament. Reporting from this event suggests that the military was not simply using legal institutions to pursue its own interests. Instead, key members of the Supreme Constitutional Court had been in close contact with the Egyptian military from the very beginning of Egypt’s political transformation to address how they will handle the risk that the broad popularity of the Muslim Brotherhood will allow it to unilaterally shape the Egyptian state. Tahani el-Gebal, Egypt’s deputy president of the Supreme Constitutional Court, justified this alliance with the military based on the argument that “[d]emocracy isn’t only about casting votes; it’s about building a democratic infrastructure.” This burgeoning relationship helps us better understand the dynamics behind what Varol calls “institutional entrenchment.” In particular, it might suggest that institutional entrenchment is the product of a shared counter-majoritarian interest in curbing any rising electoral tide of political Islam.
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27 Sep

Japan has promised that it will not compromise on the dispute over the Senkaku/Diaoyu islands, calling them an integral part to the country's territory. It did not take very long for China to react. The High Court of England and Wales issued an injunction against the extradition to the United States of Islamic cleric Abu Hamza al-Masri and Saudi-born Khaled al-Fawwaz...

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26 Sep

[David Landau is an Assistant Professor and Associate Dean for International Programs at Florida State University.] This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below. Professor Varol’s article “The Democratic Coup d’Etat” is an important piece of work and a key contribution to the newest wave of literature on democratic transitions. In addition, the piece is nicely crafted and carefully researched -- both Professor Varol’s theoretical foundation and his case studies are persuasive. Professor Varol rightly points out that the role of the military during democratic transitions is not uniformly negative, but in fact is complex, and uses a simple assumption, which is that the military will generally try to increase or entrench its own power during transitions, to explain military behavior during transitions. Finally, he presents a series of case studies across both time and place which would otherwise appear to have little in common (Turkey in 1960, Portugal in 1974, and Egypt today) to show that his assumption about military behavior seems to hold broadly. My comments here are not a critique of his central thesis, which I basically share, but rather build off of two of the major points in the piece. A first key finding is that “coups” are hard events to classify – contrary to conventional usage, they do not always have antidemocratic intent or effects. As Professor Varol shows, sometimes militaries engage in “coups” precisely in order to put in place or restore a democratic order. This raises a broader point: our vocabulary about democratic transitions remains pretty crude. Revolutions, as Richard Albert has argued in recent work, are not uniform events, but often have little in common; the same seems true of events we call “coups.” At the same time, these are loaded terms: to call something a coup is universally to condemn it. The term does not get thrown around in a neutral way, but is used by opponents to classify an event to which they are hostile. Meanwhile, supporters avoid the label like the plague. This is particularly true in regions, like Latin America, with long and largely (but not entirely) negative experiences with military involvement in politics. A recent example occurred in Honduras, where both sides following the removal of President Zelaya in 2010, as well as international institutions like the OAS, were obsessed with a fight over how to classify the event, even though there was agreement about most of the relevant facts. Supporters of Zelaya argued that the event was a classic coup because the military had taken Zelaya away, flying him to Costa Rica, without any legal authority. The proponents of the removal, in contrast, argued that it was a congressionally ratified action against a dangerous, undemocratic president. The sheer amount of energy put into the label suggests that it is obscuring rather than illuminating important questions. And I am uncertain whether adding the label “democratic coup” to the vocabulary does much to clarify things. Opponents of Zelaya would characterize the removal as a “democratic coup,” if a coup at all, because it had the effect of ousting a president who they argue was on a path to dictatorship and replacing him with another civilian regime that did not have such aims. Supporters of course would argue that it was undemocratic because it removed a democratically-elected president who was governing according to the popular will.
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26 Sep

[Joel Colón-Ríos, Senior Lecturer at Victoria University of Wellington, Faculty of Law, responds to Ozan Varol, The Democratic Coup d'Etat.] This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts from this series can be found in the related posts below. Ozan Varol has written an important article. In arguing that some military coups may not only have democratic features but that they may also result in the adoption of democratic constitutions, Varol invites us to reconsider two of the most persisting questions in contemporary constitutional theory. First, what makes a legal revolution (understood in Kelsenian terms, that is, as the creation of a new constitution in violation of the rules of change of a previous constitutional order [see Hans Kelsen, General Theory of Law and State 116-118 (1949)]) democratic? Second, what makes a constitution democratic? Even though mostly engaging in a discussion about legal revolutions, about military coups that result in important structural changes (i.e. the transformation of authoritarian or totalitarian regimes into democratic ones), Varol seems to be examining only the latter of these questions. In fact, he suggests that he is not interested in looking at the “process by which the coup takes place” (the legal revolution), but at the democratic character of the “resulting change” (the constitution it produces) (p. 298). For the purposes of his article, Varol operates under Samuel Huntington’s definition of democracy: “a regime in which political leaders are selected through free and fair elections”. (p. 305). Varol does not engage in an open defence of this (low-intensity) conception of democracy, but uses it to determine whether a military coup can be categorized as democratic. Briefly put, if a military, with the support of the population, topples an authoritarian or totalitarian regime, facilitates free and fair elections within a short span of time, and transfers power to the democratically elected leaders, we have a democratic coup. (p. 300). In this short note, I would like to look at ‘democratic coups’ from a strong conception of democracy. In so doing, my aim is not to put forward a different conception of ‘democratic coups’, but to show that the questions posed above are interrelated in important ways; they are, put shortly, questions about the democratic legitimacy of a constitutional regime. If we look at these two questions together, we still might be able to talk about ‘democratic coups’, but in a much more restricted way that Varol’s approach suggests.
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26 Sep

[Ozan Varol is Assistant Professor of Law at Lewis & Clark Law School.] This post is part of the Harvard International Law Journal Volume 53(2) symposium. Other posts in this series can be found in the related posts below. This article examines the typical characteristics and constitutional consequences of a largely neglected phenomenon that I call the “democratic coup d’état.” To date,...

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26 Sep

While it's difficult at best to evaluate the truth of Iran's claims about its weapons development, this latest story struck me as both plausible and relevant to the ongoing debate about international law rules governing targeted drone strikes. "Iranian military leaders gave details of a new long-range drone and test fired four anti-ship missiles Tuesday in a prelude to upcoming naval...

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26 Sep

Two explosions have occurred near Syrian military headquarters in Damascus. Hours before these two explosions, a Qatari emir said that Arabs must intervene in Syria in the absence of Security Council action. Foreign Policy offers an insight into a report about the torture tactics used by the government of Syria and their effects on children--sometimes with the children being the victims of the...

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25 Sep

[Dr. Chantal Meloni works at the University of Milan and is a von Humboldt scholar in Berlin. She is the co-editor of Is there a Court for Gaza?, T.M.C. Asser 2012)] The question that many scholars are dealing with in the past months, following the 3 April 2012 update by the Office of the Prosecutor (OTP), is whether the Palestine-ICC chapter should be regarded as closed. In this short analysis I intend to delineate why, in my opinion, the Palestine-ICC chapter is far from over. The issue is of particular relevance in these very days for two reasons: as further explained below, over the next weeks both the UN General Assembly and the ICC Assembly of States Parties will have to deal (much depending on the choices of the Palestinian Authority) with the question of Palestine, which will ultimately have an impact on the possible opening of the investigation before the ICC. The starting point is that the 3 April 2012 update/memorandum/statement (as it has been variously called) by the OTP on the situation in Palestine is in fact a decision. This means that the preliminary examination on the situation is closed, as are the preliminary examinations of the situations of Iraq and Venezuela, which are indeed listed on the same ICC web page under the link "decision not to proceed” (which, by the way, is not the appropriate expression, since the decision not to proceed only comes at the end of the investigation stage, thus these cases should correctly be defined “decisions not to investigate”). According to internal OTP sources, the ambiguity contained in the “update”'s two pages and its deceptive title, was apparent to its authors. The final document - which was apparently issued in a rush notwithstanding 39 months of preliminary examination - was the result of diverging and irreconcilable positions inside the OTP, which allegedly led to the deletion of several arguments and the associated reasoning. I will refrain from criticizing again the poor content of these two pages, since other scholars have already well done it: see, among the others, the comments by Michael Kearney, and William Schabas. Irrespective of its merits, pursuant to article 15(6) of the Rome Statute, relevant actors, such as inter alia the victims’ representatives, who delivered information to the OTP and communicated with the office during the preliminary examination, should have been notified of the decision. The OTP alleges to have done so, and that more than 300 notifications were sent out, but apparently organizations like the PCHR, which represents hundreds of Gaza victims and provided information and documentation to the OTP, have not received any notification. Apart from these preliminary observations, some more substantial questions arise from the procedure which was adopted by the then Prosecutor – Luis Moreno Ocampo - to deal with the Palestine situation. These are more serious questions that go beyond the case at hand and touch upon the extent of the discretional powers of the Prosecutor and the judicial remedies provided before the ICC. Some of these questions are outlined below.
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