Wednesday, September 21, 2011

Words have meanings. And Consequences.

(UN General Assembly. Bring your own seat chair. Sit anywhere. Or something.)

Well, hasn't it been an interesting couple of days? If he's achieved nothing else, then PA President Mahmoud Abbas (Abu Mazen) has put the need for a two-state solution back at the centre of the international agenda for the first time in at least the last 12 months - indeed, with the Arab Spring, it's hard to say that even the Middle East has been focussed on Israeli - Palestinian negotiations in 2011. 

I shan't bore you with lots of links to interesting stories: I assume that if you've bothered to read these blog posts, you're probably interested enough in the subject to read a range of views and therefore you hardly need me to drive the point home. And I must stress again that this is an international law blog, rather than a politics blog... which I appreciate may be a fine line to tread, but at base it looks at the legal arguments first, and if it is to make political commentary, to do so second. 

So with that out of the way, I was shocked not by Texas Governor Rick Perry's "Likud right or wrong" speech in which Perry accused President Obama of "appeasement", or by Perry's apparent suggestion that that he wanted Jerusalem “united under Israeli rule” (in contravention to US policy and UNSCR 478 (1980)); Perry seems to be a loud-mouth dimwit, even if he is running for the US Presidency. 

Altogether more shocking is by US House of Representatives Resolution H Res 112-394 introduced on 8 September by Illinois Republican Joe Walsh (below). 

(Annexation? Sure, help yourselves!)

H Res 112-394 enjoys more than 30 co-sponsors, and resolves, 

"That the House of Representatives firmly supports Israel’s right to annex Judea and Samaria in the event that the Palestinian Authority continues to press for unilateral recognition of Palestinian statehood at the United Nations."

Supports annexation? Excuse me? And as an implict punshiment for the PA pressing for "unilateral recognition of Palestinian statehood at the United Nations"? Pardon? Really?! Really?!?  

So let's look at the legal issues. All of this, it must be recalled is in territory captured by the Israeli Defence Force in the 1967 Six Day War, and subsequently occupied. Therefore, the controlling law remains the Fourth Geneva Convention (1949) (GCIV), which is binding on all states - including Israel.
  

Annexation 
The UN Charter, in outlawing aggressive wars in Article 2(4), made the acquisition of territory through conquest illegal for the first time in human history. Since 1945, therefore, annexation has also been illegal.*

In Geneva Convention Law, GCIV Article 47 forbids the removal of the population's rights under the Geneva Conventions by "any annexation by the latter of the whole or part of the occupied territory", making annexation not just illegal under the UN Charter, but also making any attempt to implement this illegal policy a crime under Geneva Law, too.

GCIV Article 49 deals with expulsions, evacuations and population transfers in its six paragraphs. It is illegal to permanently move a populations out of their occupied territory, though there are specific rules about evacuation for protection, e.g. in the case of continuing military operations. These evacuations must be temporary, and abide by international safeguards.

(On a tangent, reading Article 49 can be slightly confusing, in that the first five deal with the protection of the population under occupation, and the sixth paragraph prohibits an occupying power from transferring their population into the conquered territory; it is a Art 49(6) that makes all Israeli settlements in the West Bank and the Golan Heights (and prior to 2005, Gaza) unambiguously illegal under international law.** This nearly led Art 49(6) to become its own article in GCIV, but in the drafting conference, it stayed where it is.) 
Annexation as a collective punishment. 
Any annexation of the West Bank would, on the basis of Israeli policy in the area of East Jerusalem that the Israeli Government claims to have annexed, (and which no-one else in the international community accepts, hence the reason that Embassies in Israel are in Tel Aviv, not Jerusalem), be deprived of significant civil and political rights. This amounts to a form of collective punishment, which GCIV Article 33 expressly prohibits, demanding that "No protected person may be punished for an offence he or she has not personally committed."

So has Joe Walsh incited war crimes?

Incite: to stir, encourage, or urge on; stimulate or prompt to action: to incite a crowd to riot (Courtesy of Dictionary.com)
 
It is clear that any Israeli annexation would be unambiguously illegal, and in (i) wrongly asserting that annexation is a "right" of the Israeli state, and (ii) to link this illegal action to an illegal collective punishment, it is arguable that Representative Walsh and his colleagues are indeed inciting such - illegal - action. The question is, would this amount to what the Geneva Convention would describe as "grave breaches"? I'm not sure, and will ask some experts.

However, if it does - and both ICTR and ICTY jurisprudence has cases on incitement - arguably Congressman Walsh and his con-sponsors should be subject to action by the US Government under its obligations laid out in Common Article I of the Geneva Conventions, which requires, "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." 

Oops. 

Perhaps someone may want to tell the Congressman.... 


* Only the Indian annexation of the Portugese colony of Goa being broadly recognised by the international community, and with the understanding that this was in effect decolonisation. 

** In a tragic irony, the first paragraph of the Art 49(6) ICRC commentary explains the historical background, and why Art 49(6) was included in the first place:  

"This clause was adopted after some hesitation, by the XVIIth International Red Cross Conference (13). It is intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race." 

In other words, Art 49(6) was a direct repudiation of Hitler's policy of Lebensraum settling Germans and ethnic Germans across central and eastern Europe.

14 comments:

Adam said...

Congressman Walsh faces zero chance of being prosecuted for his statements, at least in the US. In Reid v. Covert, the Supreme Court reiterated that the United States Constitution supersedes any foreign agreement or treaty. The First Amendment provides broad protection for speech in general, while Article One, Section 6 would make it almost impossible for the executive branch to take action against a Congressman for anything he said on the House floor.

As for Rick Perry, he may well be loudmouth, but his position on Israel shows that he is no dimwit. Taking a hard line on the issue can only help him in the Republican primaries, and could also lure Jewish votes away from Obama in Florida during the general election.

Toby's Random Musings said...

Adam, hi

I appreciate the point about the First Amendment, and also the importance of Parliamentary privilege. And though there are limits to free speech (think shouting "fire" in crowded theatres), I was not seriously expecting Congressman Walsh to face prosecution.

However, as a matter of international law, this expansive interpretation of Reid v. Covert is simply wrong. Indeed, any other legal outcome would be absurd on two levels.

First, there is a corpus of international law known as the jus cogens (compelling law) which is accepted by the international community of states as a norm from which no derogation is ever permitted. As a matter of law, a State's jus cogens obligations will supersede any national legislation - including the US Constitution.

There is also a slightly broader group of legal concepts known as obligations erga omnes, which are obligations that states owe to each other and are not derogable - even in deference to the US Constitution.

Second, on a practical level, no State would expect to make commitments in a Treaty and then allow the US to wriggle out of them citing their Constitution. This is precisely the problem with Medellín v. Texas in 2008, which in international law terms would rank with Dred Scott in terms of infamy.

On Perry, the problem with taking a "hardline" on Israel is that it only helps you if you're operating in soundbites amongst people with limited or partisan information. (And I accept that there are a large number of GOP caucus goers and primary voters who may fall into this category.) However, I fall into the camp of Americans who think that partisanship stops at the shore, and Perry and his ilk in adopting the most extreme Likudnik views as their own are both doing the US and long-term Israeli national interest a disservice. Oh, and their voters, too.

Adam said...

Thank you for your reply. Whether international law supersedes the US Constitution when the two conflict depends on if one is speaking in a de jure or de facto sense. International law may well be supreme in theoretical terms, but the mechanisms for its enforcement are weak. In contrast, the US Constitution's enforcement mechanisms are well established and powerful. So, speaking practically, the US Constitution can and does trump international law whenever the two conflict. Medellín v. Texas demonstrates this point quite well: other countries have no choice but to “allow” America to “wriggle out” of commitments--put simply, they lack the power to do otherwise.

Toby's Random Musings said...

Adam, hi

The problem transcends the theoretical; yes, there is the supremacy of international law. But the cost to the US of carrying on as you propose - namely, "the strong do what they will and the weak do what they must" - is that

(i) at a practical level this means you have to be top dog forever, which is unlikely, and

(ii) international law is, more than anything else, based on reciprocity - so if you unilaterally decide that the rules don't apply to you, don't be surprised if other countries take a similar view on commitments that you're counting on.

It is for this last reason that President GW Bush was procedurally correct to "unsign" the Rome Statute for the ICC when it became clear that the US had no intention of ratifying it. (Joining the ICC is strongly in the US's interests, but that's a different story.)

Adam said...

I didn’t actually propose anything--I simply observed that in terms of practical effect, the US Constitution (at least within America’s borders) trumps international law, and that (generally speaking) there is little that most other countries can do about it. With that having been said, it’s true that I agree with this situation. I also wish to see many international legal norms and institutions undermined, as I believe them to be both counter productive and fundamentally unjust.

You're correct about the main flaw of this approach: it depends on perpetual US strength, and that strength is by no means guaranteed. Indeed, perhaps the most frightening aspect of Obama’s presidency has been his willingness to risk America’s dominant status through economic mismanagement.

Toby's Random Musings said...

Adam, hi

I'm interested in what international legal norms and institutions you would want undermining - seen from here, there are largely of Anglo-American design, and are hugely in our interest, especially if the rules based system that is in our favour remains the core of international law as our relative power wanes.

On Obama's economic "mismanagement", I don't think he's done a bad job - the inheritance (large structural deficit, unfunded mandates left and right, and over leveraged households) was not his fault. If anything, I think it would have been more sensible to have a larger stimulus on infrastructure spending and - one thing I do fault the President for - a clear understanding of how entitlement reform and tax rises for the middle classes (not just the wealthy) will put America back on a sustainable fiscal path. Recall, it was Bill Clinton who was the last President - and the only one since LBJ - to send a surplus budget to Congress. So much for the GOP being fiscal conservatives!

Adam said...

The main problem is that Obama’s stimulus measures were based on the the Keynesian theory. Under this view, government should respond to economic contraction by spending money (infrastructure projects being a perennial favorite). This will then lead to new employment and increased consumer spending, with the subsequent ripple effect being felt through out the system.

Unfortunately, the government can’t really inject any new wealth into the economy. Rather, funding for state expenditure only come from two sources--taxation and borrowing. Obama and the Congressional Democrats have opted for the later, and have thus far borrowed more than President Bush did in his two terms combined. When money is borrowed from domestic investors and institutions, less is available over for private endeavors--typically a more efficient allocation of resources. Money that comes from foreign sources is of little lasting value as well, since it is simply canceled out in the balance of trade. All that is truly achieved is a massive debt load that will one day require punishing tax increases, killing any incentive for productivity. Japan experienced the futility of Keynesian pump-priming in its Lost Decade, as did America during the New Deal years. The current US economic situation is demonstrating it once more

And those are just the problems with Obama’s fiscal policy--he has compounded them with a cumbersome health care law that creates yet more headaches (pun intended) for American business. A much better approach would have involved shifting towards a consumption based tax code (less of a deterrent to growth) and unlocking America’s energy reserves. None of these would have been easy options for him, of course, as they would have been stiffly opposed by both his base and congressional allies. I agree with much of your criticism of President Bush’s economic record, but the current president has made a bad situation worse. Obama inherited a burning house, and the sensible choice would have be to douse it with water. He chose to apply gasoline instead.

I apologize for not answering your question regarding international laws and institution--I’ll be busy for the next few days and may be slow in my response.

Toby's Random Musings said...

Adam, hi

First, can I say how refreshing it is to have a debate which is informed and polite; one of the things that concerns me most about US politics at the moment is that both parties are spending so much time shouting at each other that we're not having the national civic conversation we need to plot our way forwards. For that, many thanks.

I'm completely on board with Ricardian Equivalence, and that Keynesian stimulus needs to be operated as JMK intended, namely to promote fuller employment in the short-term, with the debts incurred paid off from surpluses generated by growth. The failure of virtually all parties in the western world is that they've all been demi-Keynsians, in that they've (correctly) run deficits in recessions, but (incorrectly) have failed to make them good in times of plenty.

Given the more limited welfare state in the US model, there are proportionately fewer "automatic stabilizers" in recessions, and therefore the US actually has a greater need for the use of deficit spending than western europe. But the key is having a credible medium term fiscal plan that points towards sustainable public finances not in 2018, but in 2020, 2025, 2030 and 2050. This is the challenge that Simpson-Bowles did a good job on, and that was roundly ignored by the partisans on both sides - and why the Super Committee's work is so important.

Obamacare is not my ideal legislation, either - but because there is no public option, nor is there a route to a single-payer model as the foundation for a mixed-health care economy that works rather better than the existing US model in countries in Europe, and yes, in Canada.

I look forward to your views on the legal argument in due course.

Janta said...

On behalf of Adam, who has tried to post unsuccessfully (and very much in opposition to my own views, I might add):

Toby,

I’m sorry for the tardiness in my reply--this week has been exceptionally busy. I too am a blogger, and I’ve recently learned that the bulk of my readership consists of high school and college girls. Any interest is of course more then welcome, but I’ve had to re-tailor much of my material to fit this demographic.

Your feelings regarding the tone of the debate are certainly reciprocated. Many of the "defenders" of international law that I've encountered have been decidedly thuggish individuals who must be treated accordingly. You, by contrast, are a thoughtful and well spoken advocate for your cause. Now, to answer your question...

There are a number of international agreements and institutions that I find to be either counter-productive, immoral, or both. These include the proposed Arms Trade Treaty, the Ottawa Treaty, the Convention on Cluster Munitions, provisions relating to the execution of minors in Article 6.5 of the International Covenant on Civil and Political Rights, as well as the Second Optional Protocol to that document. I also object to the presence of China and Russia on the Security Council, along with the composition of the UNHRC. Finally, I think that the ICC is an absurdity, as evidenced by the fact that Luis Moreno-Ocampo made much of bringing charges against Omar al-Bashir and yet had no qualms about publicly shaking hands with Mahmoud Jibril, a man who is both an ally of the Sudanese president and whose own forces have engaged in anti-black pogroms in Libya.

At a more basic level, I fear that the existence of the United Nations helps to maintain a dangerous delusion: that global peace and security rest on something other than western supremacy. Western power is what restrains bad actors, and without it, any system of international law is a chimera that will not hold. Occasionally, something good does come out of the UN, such as the (mildly) anti-abortion language heard at the 1994 International Conference on Population and Development. On the whole, however, the body amounts to global snake oil that obscures the causes of and solutions to the world’s problems.

I may not be able to respond promptly, but I look forward to hearing your counter points.

Toby's Random Musings said...

Janta - thank-you for posting this on Adam's behalf. Hope you're well.

Adam, good to hear from you.

Taking your concerns in turn. I don't have a major problem with the Arms Trade Treaty, though I've not followed it in detail- what is it that concerns you?

Ottawa (anti-personnel landmines), will, over time, reduce the number produced and laid, and this will reduce harm. But without major producers and users (e.g. Russia, US, China, India and Pakistan)as members, it's hard from State practice to deduce that there is a customary rule. That having been said, the US could have joined but for the Korean minefields, so if we have a solution on the Korean peninsula, it is conceivable that the US would join in future.

The Convention on Cluster Munitions is something that I've issues with, too, as I don't think that it's an especially clever piece of legislation, and the process that went on in Dublin was very poor. The issues with cluster weapons is that there should be a customary ban on the use of cluster munitions without self-inerting submunitions, and there should also be explicit rules about their use, notification and post-conflict clean up requirements. Taken together, this would have had a much greater effect in reducing the harm done by this class of weapons rather than the approach adopted in Dublin which by contrast actually only crystallised the design requirements of the next generation of cluster munitions - designed around the advanced German-designed SMArt 155 anti-armour round.

I don't agree on ICCPR 6.5; I am opposed to capital punishment under all circumstances, as it is bad public policy to enact vengance as an end, it doesn't deter, we execute innocents, and I think it is additionally morally reprehensible. So I've no trouble with this element of the ICCPR.

On the UNSC and UNHRC - what's the problem?

The ICC is undeniably a work in progress, but it is providing a source of accountability and redress to those who've had precious little of either in their national systems. The ICC should be strengthened, notably by the US repealing the ASPA and joining up: if American justice works, then there is no - repeat no - risk that any US serviceperson will ever go before the ICC as it only has complementary jurisdiction over the crimes in the Rome Statute, and can only prosecute if the State is unwilling, unable or attempting to shield personnel. If the US is concerned with these things, then they have many bigger problems to worry about than the ICC prosecutor (and I think Ocampo is doing a great job.)

On your last paragraph, I worry more than a little. If the only safeguard for civilisation is "western supremacy" then the 21st century is going to be rather trying for you, I fear. The whole point of the UN and the international legal system is to bedrock our liberal international values as the rules of the club as our comparative - if not absolute - power wanes.

And I'm pro-choice, recognising that abortion is inevitable, so it should be safe and freely available, but that there needs to be a balance that I think the current UK legislation achieves well. What frustrates me about the US abortion "debate" is that it's not a debate at all, and that it should've been regulated by the federal legislature rather than left to the Court. Fundamentally, however, if you oppose abortion, don't have one.

And I look forward to continuing the discussion when you get a chance.

Janta said...

Hi Toby,

Once again Adam is having trouble posting, strangely. Once again, I waive any association with the ideas and opinions expressed herein ;) :

"Taking your concerns in turn. I don't have a major problem with the Arms Trade Treaty, though I've not followed it in detail- what is it that concerns you?"

The problem is that the agreement strengthens existing controls on the movement of small arms, and this could one day lead to the supply of weapons being completely choked off for civilian populations. It also calls for the adoption of national licensing and registration schemes with respect to private gun ownership. I concede that there are instances when nasty actors do need to be disarmed and dealt with (both on the world stage and within societies). As a rule, however, I feel it’s best if governments stay out of the business of controlling small arms.

“Ottawa (anti-personnel landmines), will, over time, reduce the number produced and laid, and this will reduce harm. But without major producers and users (e.g. Russia, US, China, India and Pakistan)as members, it's hard from State practice to deduce that there is a customary rule. That having been said, the US could have joined but for the Korean minefields, so if we have a solution on the Korean peninsula, it is conceivable that the US would join in future.”

Landmines have a legitimate use for area denial, and can be deployed in a responsible manner. The problem lies in the reckless use of these devices, often by insurgent groups or regimes that are either not signatories to the treaty or have signed but do not intend to abide by it. (http://ochaonline.un.org/cap2006/webpage.asp?Page=1967) Had the agreement simply mandated rules on how mines could be appropriately used, then I would’ve been a supporter. But all that this treaty does is rob western and western-orientate states of a military option without fixing a very real humanitarian problem.

“I don't agree on ICCPR 6.5; I am opposed to capital punishment under all circumstances, as it is bad public policy to enact vengance as an end, it doesn't deter, we execute innocents...”

Execution of innocent men and women is a serious issue, and thus the most rigorous safeguards are necessary if capital punishment is to be carried out justly. I admit that many US states that have the death penalty fail in this regard--Oklahoma and Illinois having been two of the worst offenders in recent decades. I will also admit that the deterrent value of capital punishment is probably overstated by its proponents. However, it does carry the benefit of a zero percent recidivism rate, something not to be found with incarceration. A comparison between the options was on display in 2006, when leading members of the Aryan Brotherhood received life sentences (http://www.nytimes.com/2006/09/16/us/16aryan.html) for their role in over a dozen homicides. This was of little significance, however, since the perpetrators were already serving life sentences when they committed these killings. Unfortunately, there is a certain sort of character whose proclivities will only die when he does.

“and I think it is additionally morally reprehensible.”

By what moral standard do you judge it to be reprehensible? Under appropriate circumstances, I consider the death penalty to be morally affirming, an opinion apparently shared by large numbers of Americans (http://www.gallup.com/poll/150089/support-death-penalty-falls-year-low.aspx), Canadians (http://www.torontosun.com/news/canada/2011/01/25/17031401.html), and Brits (http://www.metro.co.uk/news/747748-half-of-us-back-death-penalty).

Janta said...

“On the UNSC and UNHRC - what's the problem?”

The problem with the UNHRC is that it’s a human rights body with a significant contingent of human rights abusers. Prime example: Saudi Arabia--a country where rape victims are more likely to be punished than their rapists. (http://www.youtube.com/watch?v=Sxn-26-8ork) The possibly that adherents to this sort of unreconstructed barbarism have anything meaningful to contribute in the field of human rights is surely remote. For criticism of the UNSC, see below.

“The ICC is undeniably a work in progress, but it is providing a source of accountability and redress to those who've had precious little of either in their national systems. The ICC should be strengthened, notably by the US repealing the ASPA and joining up: if American justice works, then there is no - repeat no - risk that any US serviceperson will ever go before the ICC as it only has complementary jurisdiction over the crimes in the Rome Statute, and can only prosecute if the State is unwilling, unable or attempting to shield personnel. If the US is concerned with these things, then they have many bigger problems to worry about than the ICC prosecutor (and I think Ocampo is doing a great job.)”

The provision on “crimes of aggression” could well deter future military actions by western governments, such as the 2003 invasion of Iraq. The US, UK, and their allies need to feel free to move, with or without approval from the SC. With that having been said, the UK’s ability to contribute is being compromised by the regrettable spending choices it’s making now--something that you have done a good job of covering.

“On your last paragraph, I worry more than a little. If the only safeguard for civilisation is ‘western supremacy’ then the 21st century is going to be rather trying for you, I fear.”

Possibly, although not just for me.

“The whole point of the UN and the international legal system is to bedrock our liberal international values as the rules of the club as our comparative - if not absolute - power wanes.”

Believing that a country such as China (as it’s currently governed) will abide by the rules of the club simply for the sake of being a good member is naive. The nation is led by a clique that has no use for the rule of law, either externally or internally. From arming Bashir’s dictatorship (http://news.bbc.co.uk/1/hi/7503428.stm) and supporting the Burmese junta (http://www.asianews.it/news-en/Myanmar:-despite-sanctions,-a-growth-in-investment.-China-has-87-of-the-market-15808.html) to shielding Milosevic over a decade ago, they have shown themselves to be unabashed hoodlums. Putin’s Russia is little better (albeit with less weight to throw around), as are the other thugocracies on the world stage. Regimes that need to be controlled will only respond to carrots or sticks--and without sticks we will quickly run out of carrots.

Janta said...

Regarding abortion, the question turns on whether or not the fetus constitutes a person. The 14th Amendment to the US Constitution reads (in part), “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Therefore, if the fetus is a person, then he or she is entitled to the same legal protections as anyone else. Justice Blackmun admitted as much when writing the majority opinion of Roe v. Wade, saying that “…the fetus’ right to life would then be guaranteed specifically by the Amendment.” Given the recent advances in medical technology, it has become more and more apparent that the fetus has traits consistent with those that one would expect to see in a person.

A fetal heart beat is now detectable six weeks after conception (http://www.americanpregnancy.org/duringpregnancy/fetaldevelopment1.htm), and brain waves are also evident early in the pregnancy. Then there is the issue of fetal pain: When she appeared before Congress, anesthesiologist Dr. Jean Wright testified that, “An unborn fetus after 20 weeks of gestation has all the prerequisite anatomy, physiology, hormones, neurotransmitters, and electrical current to close the loop and create the conditions needed to perceive pain.” (http://ftp.resource.org/gpo.gov/hearings/109h/24284.pdf) This claim is backed by the findings of Dr. Kanwaljeet Anand, a professor at the University of Arkansas who agrees that a fetus begins to feel pain at 20 weeks gestation (http://www.nytimes.com/2008/02/10/magazine/10Fetal-t.html?pagewanted=1). Dr. Nicholas Fisk, of the University of Queensland, however, argues that the ability to feel pain could start even earlier (http://www.nytimes.com/2008/02/10/magazine/10Fetal-t.html?pagewanted=1). Consistent with these statements are the observations of former Planned Parenthood clinic director Abby Johnson, who reported seeing a fetus appear to kick and struggle while she assisted with an ultra-sound guided abortion. (http://www.amazon.com/Unplanned-Dramatic-Planned-Parenthood-Eye-Opening/dp/1414339402/ref=sr_1_1?s=books&ie=UTF8&qid=1319419518&sr=1-1#reader_1414339402)

The issue of pain is especially important when one considers the techniques used to perform an abortion. When a fetus is under twelve weeks of age, a technique known as suction curettage (or vacuum aspiration) is typically used, and it involves suctioning the fetus through a tube (http://www.michigan.gov/mdch/0,1607,7-132-2940_4909_6437_19077-46301--,00.html). After the twelve week mark, dilation and evacuation abortions are the norm. (http://www.michigan.gov/mdch/0,1607,7-132-2940_4909_6437_19077-46298--,00.html) By this point, the fetus must be dismembered manually with forceps before the womb can be evacuated. For late term abortions (which are legal for purely elective reasons in much of North America), the scene is even more gruesome. It is interesting to note that in Wilkerson v. Utah, the Supreme Court put significant limits on what methods of execution were permissible, stating that “punishments of torture” violate the 8th Amendment’s prohibition of cruel and unusual punishment. (http://supreme.justia.com/us/99/130/case.html) I find it ironic that you object to the way that America disposes of it’s convicts rather than how it gets rid of unwanted children, even though the latter is surely more painful and cruel than the former.

Janta said...

“And I'm pro-choice, recognising that abortion is inevitable, so it should be safe and freely available...”

If by “inevitable,” you mean that abortion is the only method of resolving an unwanted pregnancy, then I must disagree. There are currently long lines of couples waiting to adopt infants in America (http://www.adoptionservices.org/adoption/adoption_waiting_period.htm), and there also exists a network of organizations that assist pregnant women in difficult circumstances. (https://www.care-net.org/) Known as “crisis pregnancy centers” or “pregnancy care centers,” they assist with issues of nutrition, housing, and finance. One of the two that I’ve been involved with also helps young women pursue post-secondary education. In short, abortion is far from an inevitable choice.

If, on the other hand, you mean that there are always a certain number of abortions that will take place, then I concur. However, there are all sorts of violent acts that are bound to happen, and few of them are given legal sanction simply because they are statistically inevitable. I see little reason to treat abortion differently.

“Fundamentally, however, if you oppose abortion, don't have one.”

I suspect that similar reasoning was used by antebellum plantation owners to answer their abolitionist critics--something to the effect of, “If you don’t like slavery, don’t own a slave.” Of course, the rationale behind such a statement--that the government has no business intervening when someone is subject to arbitrary violence--is wholly incompatible with our legal and political tradition. While it might make for a catchy soundbite, your contention hardly amounts to a serious argument.

“What frustrates me about the US abortion ‘debate’ is that it's not a debate at all, and that it should've been regulated by the federal legislature rather than left to the Court.”

How could Congress have unilaterally repealed the abortion statutes of all 50 states and then replaced them with some national standard? While perhaps not as robust as in years past, the10th Amendment is no dead letter. I suppose an effort could have been made to link abortion rules to federal funding (in much the same way that Congress brought about a national drinking age of 21), or tried to shoe horn it under the Commerce Clause. Even if these national rules passed constitutional muster, such a law would have made re-election prospects grim for a good many Congressmen.

Thank you for taking the time to respond to all of my points. In going over your blog, I noticed that I left a comment on another of your articles. This discovery was mildly disturbing, as I honestly have no recollection of making such a post. It does sound exactly like the sort of thing I would say, however, so I’m not worried that my account has been hacked. I will make an effort to deal with your reply when time permits.