Le Monde raises the debate on the Rule of Law

On 6 January 2016, Le Monde published an editorial contrasting the Reason of State to the Rule of Law, providing an interpretation fully consistent with the title that Marco Pannella had given to the First International Conference “Reason of State versus Rule of law”, organized by the Nonviolent Radical Party in the European Parliament in Brussels on 18-19 February 2014.

The French newspaper writes: “The reason of state […] conflicts with the reasons of justice – which belongs to the Rule of Law as opposed to barbarian jihadism. There is no easy way out of this kind of dilemma. We should demand, as in the US, that the executive be accountable to Parliament in detail, at least to the members of the defense committees. […] We understand the requirements of the fight against terrorism. It is not healthy that they remain the exclusive domain of the President and of the Joint Chiefs of Staff.”

The editorial goes on describing some recent amendments relating to the constitutional war powers, suggesting that they do not go far enough and that in order to address long-term issues, more knowledge and debate are necessary. In France the state of emergency has not been lifted since it was declared in November 2015 and the French peope still live under the threat of terrorist attacks.

Le Monde clearly explains how the extension of French military operations to Syria, in response to the attacks against Charlie Hebdo and the Bataclan, was legitimized on the basis of previous UN resolutions on Iraq, integrated, in Hollande’s approach, by the right to legitimate defense against Daesh in accordance with the UN Charter. Thus, France established – without any formal objection from either the UN or other States – an important principle that could be claimed by others hereinafter. It could be invoked not only in respect of terrorist attacks, but also for other cases that might compromise the integrity of the State and the security of the people.

It is not the first time that Le Monde emphasizes the centrality of democratic values and principles embodied by the rule of law. This editorial confirms once again that Le Monde is, as it was for Marco Pannella, an absolute reference on many of the issues that we try to bring to the attention of the public.

We welcome the fact that President François Hollande has chosen to raise the issue of preemptive drone strikes authorised by the President with the press, even though his timing does not allow the French public to take a conscious position on the policy prior to its implementation. At the conference “SOS Rule of Law: towards the right to know”, held at the Italian Senate on November 29, 2016, we proposed to go in the direction indicatd by the French newspaper, implementing policies that would allow to strike a balance between the requirements needed to guarantee security and the people’s right to knowas well as popular trust and support. Chances of success will be greater if, as we have been proposing for some time, Member States will take action at the United Nations for a common transition towards the Rule of Law through the affirmation of the right to know. As stated in the study presented at the conference of November 29th:

“[…] the public discourse argument may prove a very strong tool in the secrecy versus transparency balancing act, more so than the single appeal on accountability grounds. Halperin presents concrete examples of such a balancing exercise with specific regard to one of the most guarded policy areas: foreign and military relations.

On the basis of his argument, we may state for example that the concrete technical composure of a new weapon may be kept confidential, as its disclosure might have harmful consequences for other human rights, with the right to life in primis.

However, the development, existence and possible use of such weapons should be part of public debate, as they pertain to one of the most essential political decisions a government may take with public means. In this sense, it hardly makes any sense to keep programmes such as the United States’ armed drone programme used for extrajudicial killings a secret from the public at home, when the consequences cannot in any reasonable manner be hidden, at least not in a democratic society which enjoys freedom of press.

While precise targets and timing may be kept confidential prior to the execution, no reasonable security reasons can be invoked to keep such a programme hidden other than the aim to avoid public debate at home. A similar point in case may be made with regard to negotiations in international relations. Where initial goals and intention to start negotiations should be disclosed to public to allow for debate, for reasons of efficiency it may be reasonable not to disclose all information such as the lowest possible bargaining point.

However, when significant decisions are taken during negotiations – such as Tony Blair’s “I will be with you, no matter what” -, these should be immediately entrusted to the public debate as they may shape it in a very diverse manner. In this sense the tenet of public discourse is a stronger component in the necessary balancing acts between objective security reasons and the people’s right to know than accountability mechanisms.”

Bearing this in mind, the congressional and public debate in the USA over whether the “fifth dimension of security” – the Cyber-dimension – is employed to attack the heart of liberal democracy is an impressive example of the situations in which the principle of self-defense could be invoked, even beyond those conditions of “blatant use of force” that the classical doctrine, elaborated in technological prehistory compared to the current world, posed as a precondition. To grasp the importance of these aspects in terms of protection of the Rule of Law, it is necessary to recall that the Cyber/Signal-Intelligence tool (SIGINT) plays a crucial role in the decision-making process leading to the elimination of confirmed or potential terrorists in war zones against ISIS which Le Monde refers to.

We find ourselves in the midst of some kind of “Manhattan Project” – the research and development programme carried out by the US military during the Second World War that led to the creation of the first first atomic bombs – developed by a dozen countries each for their own part, sheltered and free from any kind of democratic oversight by the public opinion, especially as far as their characteristics, purposes and strategies are concerned. While the lack of accountability on this matter is obvious for autocratic countries, in a “democrature”, the lack of accountability caused by the “denial” of the Right to Know affects, to varying extent, all Western countries.

Take the communications that the governments of the member States of NATO have provided to their respective parliaments and to the public on the strategies of “Cyber Security” and “Cyber Defence”. Take also the commitments imposed upon EU member States requiring the implementation within the current semester of all the measures envisaged by the “Network and Information Directive”. Well, while the strategy papers published by the US, UK, France and Germany dwell upon many operational aspects, on principles, deterrence, security and responsiveness, and outline sufficiently structures and chains of command, in many other countries, including Italy, the documents dealing with national “Cyber Defense” appear much less transparent.

Just before Christmas Le Monde reported about talks between Paris and Berlin regarding the intelligence to counter a probable, according to Mr Hollande and Mrs Merkel, fresh Russian role simlar to what is feared to have happened in the US elections. French presidential elections and German ones are tempting for President Putin to try and gain two friendly leaders in the main European capitals with links to Russia for several reasons.

Giulio Terzi

GCRL President

Matteo Angioli

GCRL Secretary

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