Human Rights Jurisprudence after Darfur: ICANN, Open-Source Transparency and the Role of China in a Global Rule of Law

This essay is written primarily for teaching purposes.  The issues of developing human rights jurisprudence post-Sierra Leone and aligning it with post-rise of China realpolitik is the challenge for the next generation of international development students.   I hope to look at specific case studies to work out a legal theory for international relations after Darfur working at the intersection of international realism, new approaches to “failed” states (i.e. states with no protection of rule of law) and human rights agendas in states with artificial multiculturalism resulting from post-colonial boundaries.  Case studies include:  (i) the successful Finnish mediation between Aceh and Indonesia, (ii) current Papua-Indonesia relations, (iii), the sale of the Canadian oil company Arakis and the impact of China on strategies for advancing human rights in Sudan and (iv) post-Andijan Uzbekistan.   From the empirical discussion of these concrete situations, students will hopefully   build on the issues raised in this essay.



            The most important and exciting work on international economics is being done at the vector of entrepreneurial business, web-enabled commerce and development economics.  It is done intuitively by people under the age of thirty who do not operate within the intellectual silos of the last generation.   The next vector taking shape is the one between human rights jurisprudence, international politics and web-enabled pro-democracy activism.

            In April 2006, the Sierra Leone tribunal led by Desmond di Silva’s prosecutorial work and the Arusha trials on Rwanda war crimes has created the framework of a rigours jurisprudence which will be refined and developed in the 21st Century.   It will provide a framework for discerning when war crimes trials are the appropriate response to human rights disputes and when truth and reconciliation commissions on the model pioneered by Bishop Tutu in South Africa are the appropriate responses in democratic and moral theory.    As the global community deals with Darfur, Burma and Uzbekistan in the post-Sierra Leone global community, this will have significant political implications.

            In April 2006, a pro-democracy network links the responses to globalization of urban Iraqi youth, post-Charles Taylor Liberians, Rwandans and those who have come to celebrate liberty through the Rose, Tulip, and Orange revolutions of Georgia, Ukraine and Kyrghizstan.    The practicalities of an open-source world, where files are shared, experiences learned and refined as web-enabled case studies is already with us, but it requires rigorous analysis to ensure that this does not become a moment of political atonality with no practical implications.

            In April 2006, the future of the internet is being called into some question by the potential development of a coalition of closed societies, seeking to regulate the anarchic mix of voices on the global web and produce controls, or even a rival internet regulatory capacity, challenging and possibly competing with ICANN.

            Open-source accountability – the next generation of pro-democracy activism:
In the next decade, there will be opportunities for a form of open-source accountability to become a defining part of the global human rights regime.    It will be possible for a framework of rule of law be available to rule of law activists in Belarus and Burma.    It will also be possible for a community of pro-democracy activists to be empowered through the organized social networks of the modern internet society.   It is also possible that in this open-source age we will end up with a fragmented internet, with closed societies opting out of the global society and/or an anarchic framework of unregulated gossip, a global tabloid of unverified charges and amateur journalism creating a Babel of incoherence in the way we look at global human rights activities.   To make sure that we have the opportunity to build a global internet community that is about real human rights, we need to start having a debate about the next generation of political activism, web-enabled human rights strategies, right now.
 
            The role of ICANN and the potential for a rise of a coalition of closed societies:  In the past few months, the future of the internet has been brought into question by the proposal to create a competitive structure to ICANN, the overall regulatory authority over domain names.    A coalition of anti-openness, including possibly the Chinese, the Iranians and the Venezuelans have started to recognize the power of the internet and a concern that universal openness may be equated with U.S. dominance.     The architecture of the new international rule of law and a practical framework for the enforcement and advancement of global human rights requires that the open-source web society that has   developed   in the last decade not be equated with Americanization.  For this reason, one of the most important debates going on right now, with implications for the advancement of a global human rights agenda is the future of Icann.    In a world where state power is only one area of influence and government aid an increasingly less significant avenue for facilitating economic growth, the impact of the internet economy going global cannot be exaggerated.    Its impact on economic activity is well understood and articulated in the increasingly focused debate about the “digital divide”.    However, it will also frame the debate about human rights, about scrutiny and oversight of human rights abuse.  It also has the potential to develop mechanisms of transparency and accountability which were   not possible before the internet.

The Burmese junta, the Iranian mullahs, reactionary sections of the Chinese Communist Party and the equally reactionary caudillo populists of Latin America understand the power of the internet.      The chaotic nature of an open source world and wiki-dominated knowledge system often remains in the peripheral vision of   conventional political decision-makers.   But the technology-literate social entrepreneurs who are defining 21st Century social and economic policy are starting to develop new strategies, sometimes bypassing public policies. 

 Google maps and monitoring water treatment and environmental developments anywhere in the world:    It is now possible to map and the water treatment engineering capacities in every village of Somalia with Google maps.   It is now possible to network entrepreneurs with microcredit-based business plans.    The theory of economic development is transformed daily by these market-facilitating activities.    The transformative potential of the web also applies to the area of pro-democracy advocacy and human rights jurisprudence.       
 The wiki and open source world can also be chaotic, unnavigably anarchic and not sufficiently subject to validation of claims.   Conventional bureaucrats who want regularized channels will point to web-charlatans, using blogs to advance particular causes, not following conventional journalistic standards of verification and simply being unrepresentative in their views.  Conversely, new economy “Wired” magazine readers will point to the rigidity of old economy bureaucracies whether the Encyclopedia Britannica or university research administrators.  Both will be right.    Both will be wrong.    We are in the process of creating a new framework for the global organization of knowledge and information.    In that process, we will expand the possibilities of the way we advance human rights law and enforcement of basic democratic values.

The lessons of Wikipedia – how to create credibility in open-source systems of knowledge and reliability in open-source systems of information:   The development of Wikipedia provides a case study of the strengths and weaknesses of these new strategies.   Wikipedia has developed with many minuses, and more pluses.  Open-source knowledge may not appeal to people, who want peer-reviewed articles, but collaborative networks of patients are revolutionizing health-care and the wikipedia model has proven a way of demonstrating a wisdom of crowds.   The skepticism about expertise is one of the great debates of our time and has to be managed with great care to steer between the rigidities of academic orthodoxies and pesudo-sciences and the anarchy of unverified opinions.     The opens-source/wiki model requires constant validation.  One of those checks is simply the openness of the open-source system.    We want to create a system which combines the rigour of conventional disciplines with the flexibility of open-source.            

 It is also it now possible to pool knowledge and to collaborate on human rights investigation.  For this to work, it must avoid becoming a   form of global vigilantism or a form of superficial tabloid analysis.    If this were to happen, it would produce a negative effect on the governance of societies.    The ideal version would be one where the open source communities complemented the    existing legal infrastructure and accelerated the changes in the development of the rule of law.    The new organization of information means that it is possible to collect data about the atrocities in   Sierra Leone and in Rwanda.    We are already capable of organizing and collecting stories of atrocities in a manner which was impossible a decade ago.   From Mladic to the janjaweed in Darfur, there has been a significant change in a decade. Elizabeth Rubin’s article in the April 2, 2006 New York Times shows the extent that this can be done when combined with the legal rigour and personal courage of investigators like Luis Moreno-Ocampo, the chief prosecutor of the International Criminal Court.   What is required, now as in the period before the open-source revolution is the kind of analytical rigour associated with great education.  Without this, and a clear debate about what this looks like, open-source runs the risk of being a mix of vigilantism, “Crossfire” soundbites and relativistic analysis.



THE OPEN-SOURCE WORLD AND THE HUMAN RIGHTS AGENDA


 It is possible and it may be desirable to have a global human rights project with a wiki-style discussion of Burma and Uzbekistan about the common issues of building a civil society and an infrastructure for democracy.  The legal enforcement of Sierra Leone and Bosnia won't be there but we create an historical record a community of accountability between young Uzbeks and young Burmese and an impediment to the posturing of 21st Century tyrants, exposed by a global openness and a debate.   To do that we need a perspective on human rights, a debate about when war crimes trials should take place and when we hand the instruments of justice to the future bishop Tutus and begin peace and reconciliation processes.    We know the capacity for new media led change that can come from the activities of a credible and visionary journalist like Pulitzer Prize winner Nicholas Kristof of the New York Times.  The atrocities of a single village and the outrages of human rights violations against a young Pakistani woman are now the subject of a global conversation.    A large dimension of the new discussion of global rule of law begins online.
           
            The debate about human rights, legitimate use of military force and the development of an international security capability have moved dramatically since the British intervention in Sierra Leone in 1997        The debate on the Iraq war has sharpened the focus between those who speak in a language of global security, those who speak in a language of economic realism and those who speak in a language of human rights and the right of every citizen on the planet to live under a rule of law.

            For law schools and political science departments, this future human rights jurisprudence requires the rigorous focusing of a number of questions.   Otherwise, the wiki-dominated documentation of abuses in Darfur and the Google satellite-mapped trail of atrocities will fall in a legal quicksand.      Some of the most important questions confronting the next generation of pro-democracy activists require being focused in classrooms today:

            (1)   How universal is democracy and how much an imposition of modern western cultural values?  The clash of various realisms and various idealisms on these issues has posed a new dimension to the political philosophy of the early 21st Century.    How universal are democratic values is an issue which has been addressed with characteristic uniqueness and astuteness of perspective by Amartya Sen.   Can the rule of law be “imposed” by force if a local clan values clan loyalty against outsiders as a trump value?    How do we choose when to enforce an international rule of law?  Who is “we”? 

            (2)  Why was the experience of the Shia in Iraq absent from the moral radar screens of the west in the 1990s?  Is it no more complicated than the fact that there was no video as contrasted with Darfur today?        The Marsh Arabs were persecuted by someone who had access to oil and have after much tragedy and moral failure been liberated by military action.  

            (3).   What is the common law principle emerging from Sierra Leone and Rwanda on the line between a war crime and a civil war situation which requires truth and reconciliation?   The superb work done by architects of a new global rule of common law in Sierra Leone, Rwanda is just starting to attract attention in legal theory and political philosophy circles. The Hague trials on former Yugoslavia have started to develop a body of evidence about atrocities and crimes which constitute “war crimes”.   But what is the border-line between state-sanctioned ethnic conflict and war crimes?   When is the appropriate remedy “Truth and Reconciliation” Commissions and when  is the appropriate remedy the application of an emerging standard of rule of law appropriate for an international tribunal such as the one in Sierra Leone?   In terms of the borderline between politics and law, when is the judgment that an amnesty or “Truth and Reconciliation” process is politically preferable to a trial the correct decision?   The judgments of Chileans regarding the Pinochet regime have haunted international human rights law for twenty years.      How does one judge the generals in Rangoon or terrorists in Sri Lanka who have the option of advancing their interests through an internationally-sanctioned mediation process?   If the Burmese generals were to leave office tomorrow with their narco-currency generated wealth in exchange for a peaceful transition to a rule of law backed regime, is this a deal which should be sanctioned by global democrats?  If an amnesty accelerated the peace process in Sri Lanka, would we still argue that war crimes trials are required because of the abuses committed by suicide bombers?  Once again, who are the global democrats who should be making this decision:  UN bureaucrats, the government of Finland or India, the State Department in Washington, a committee consisting of Nobel Peace Prize winners,  an international court of Justice a committee of international law schools, the editorial board of the Wall Street Journal, the Financial Times, or Rupert Murdoch  or some combination of the above.

            4.  What are the legitimate means for multicultural states to handle conflict? What is the role of international rule of law in these situations?    The issues of Biafra and Sri Lanka pose this question concretely and are case studies which should be analyzed intently.   The development of a rule of law framework is painstaking and incremental.     It contains within it the potential for errors, the potential for trivializing great evil and overpunishing people who reasonably could not be expected to resist social pressures and the intimidation and fear of reprisal which is the real world in periods of civil war and conflict.     There are some standards which the trial of Charles Taylor may establish.   The person who plays the role of Hannah Arendt as Taylor in Freetown (or The Hague) instead of Eichmann in Jerusalem will probably not see the banality of evil.   Instead, he or she will see a network of rationalizations about the nature of civil threats and stereotype of the behavior of people different.   Mladic and Taylor’s first clear evil is that they used state power to effect great suffering.     The Andijan citizens confronting Uzbek soldiers, the Kurds at Halabja similarly confronted a state power which saw no checks on its activity.   The international rule of law and human rights jurisprudence requires that we aim for a consistency of standards about these issues.            
 

            These last four questions are the framework if a curriculum for a new jurisprudence of human rights.     If there is a vector about political activity involving political science, legal theory and social networking, similarly there is an intellection conjunction between political science and jurisprudence.   International law has had a blood transfusion of fresh ideas.  The development of a common law of international human rights will come about through case law, through the activities of people like Ocampo in his pursuit of the architects of the Darfur massacre, in the work of the lawyers at the Arusha trials on Rwanda and in the work of Desmond Silva on the Sierra Leone war crimes trial, whose work in the trial of Charles Taylor may be one of the most significant events in political and legal philosophy of the 21st Century.

             

            Undoubtedly the internet will transform the way we look at human rights issues even more than it is already.     Now, as in so many other areas, we need to develop the tools which turn the internet from a global knowledge-dredging activity and add value through a process of validation and debate.    In all information innovations, sooner or later economic power goes to those whose capacity to validate and organize knowledge is established in the marketplace.     All those of us who are engaged in knowledge creation (media, new media networks, wikis, voluntary associations, NGOs, government agencies, universities) have to have answers to these issues.

            This applies to the standard-setting blue-chip media, who are even more important in the cluttered of an open-source world where brand is the only shortcut.  For the Financial Times, the New York Times, the Wall Street Journal, McGill Law School, Harvard, and MIT, these questions have to be addressed and worked through.        As the line between university, blue-chip media and wiki starts to converge, this will have real ramifications for the way we discuss and teach democratic values and the rule of law.  Already an inventory exists, documenting activities in Darfur, Sierra Leone, Rwanda.   We can construct a map of Darfur villages and janjaweed militia movements on a laptop with Google Maps.    What we cannot do is ensure that our knowledge management capacities enable us to ensure that the human rights questions which rightly preoccupy the next generation of political idealists can receive an effective organization of data which sets priorities.  Perhaps it is a brand like the Bill and Melinda Gates Foundation, the New York Times and the living Nobel Peace Prize recipients backed by a secretariat that provides resources and infrastructure.     

             It starts, however, with universities and law schools asking the right questions about international politics and human rights jurisprudence.   It continues with the use of the new social networking software and skills of the internet to organize data of human rights abuses and to share it in a way which empowers often isolated human rights advocates.     The power of Transparency International to shed sunlight on previously obscure corruption in various parts of the world augurs well for a web-enabled human rights agenda.      The power of web-enabled human rights jurisprudence to provide a similar standard and record also exists.   Ensuring that the internet has universal acceptance has become a top priority for advocates of a global rule of law.

            Human Rights Watch has already started this process and the development of organized data on unacceptable activities around the world has increased exponentially since the international anti-landmines movement demonstrated the power of information technology to affect public policy.     The next stage of international human rights jurisprudence is to organize the open source accumulation of case studies and stories and to create a rule of law backed set of criteria for future enforcement.    Politics remains an indispensable component of effective enforcement mechanisms.  Kristof’s political strategy for an international force of Bangladeshi, Moroccans and other Muslim troops in Darfur is recognition of the political context of human an example of the recognition of the political context of human rights jurisprudence.  With no enforcement mechanism, there is no meaningful rule of law.  Without political consensus, there is no enforcement mechanism.    The borderline between law and politics is one of the templates of democratic theory.   Contemporary human rights activists are the map makers for this borderline.