In this week’s podcast Selwyn Manning and I work through some of the under-examined aspects of the latest round of Israeli-Palestinian conflict and the stakes involved in Samoa’s disputed political transition. You can find it here.
Monthly Archives: May 2021
In Samoa, a fight for democracy.
New Zealand coverage of the attempt to overturn the results of Samoa’s national elections in April, when the opposition FAST Party won a one seat majority in parliament thanks to support from an independent MP, has largely been mindlessly anodyne. Take for example the unfortunate choice of words in the RNZ report (re-published in the NZ Herald) on the contested election: “the FAST party of Fiame Naomi Mataafa was expected to secure a majority of seats, overthrowing the long-ruling Human Rights Protection Party and making Fiame Samoa’s first female prime minister.”
There is no “overthrowing” going on in Samoa, at least not by FAST. That would be a coup, putsch or “golpe,” and that would involve a violent blocking of the constitutionally legitimate and electorally validated political succession process.
Instead, what has happened so far is a (yet unfinished)) constitutional and therefore legal rotation or succession in elected government between the defeated incumbent Human Rights Protection Party (HRPP) led by Prime Minister Tuilaepa Lupesoliai Neioti Aiono Sailele Malielegaoi and the victorious former opposition, a splinter break-off from the long ruling government of Mr. Malielegaoi (the irony of the party name will be ignored here). After dominating Samoan politics since 1982 and with the last 23 years in power in its present form (where it continuously placed legal obstacles to the formation of competing political parties), the HRPP and PM Malielegaoi are a lame duck caretaker administration until the new parliament is convened and the FAST government installed. After a series of legal challenges by HRPP involving a provision that 10 percent of parliament be female (which would mean adding one more appointed female seat to parliament and create a 26-26 MP deadlock that forces a new election), the Supreme Court ruled in favour of opposition that no new seat need be created and validated the results of the April 9 polls, opening the way for the sitting of a new parliament no more than 45 days after the election. That was to happen today.
Instead, the Malielegaoi government has blocked the move to sit a new parliament as per the Court’s order.
This is a troublesome move. Blocking rotation in government after a legitimate election is a very real attempt to overthrow the voter’s mandate. On Saturday Tuimalealiifano Vaaletoa Sualauvi, the Head of State appointed by the Malielegaoi government in 2017, declared that parliament would not re-open today. He stated the reasons for his decision would be given â€œin due courseâ€ and left Apia for his home village several hours drive away. On Sunday the Samoan Supreme Court heard an emergency challenge to the Head of State’s proclamation and found it to be unlawful. The Samoan Attorney General, representing the caretaker administration, walked out on the proceedings. Because it was held on a Sunday, PM Malielegaoi claimed that it contravened â€œGod’s willâ€ and was therefore illegal (there is no constitutional provision against holding court hearings on Sundays). The Supreme Court rejected the accusations of irregularity and reiterated that the new parliament should be seated on the basis of the April 9 results. Instead, the Speaker of the House, a member of the HRPP, shuttered the doors of the Maota Fono, claiming that he follows the orders of the Head of State, not the Supreme Court. Coincidentally or not, the website for the Samoan Observer, the country’s main media outlet, has gone off-line. The stage is set for an authoritarian usurpation.
To be clear: political democracy is based on the principle that election losers accept adverse results in exchange for getting to compete again at pre-set intervals under fair conditions. Rotation in government is considered to be an intrinsic part of democratic governance and intrinsically good because it allows opposition parties to learn how to govern and allows former government parties to refresh and gain perspective when in opposition, all while vying for electorate support. That competitive pressure is considered to be what keeps the political process healthy if not entirely honest.
In other words, either one accepts the principle of the honest loss or one is anti-democratic. The April elections were honest and the HRPP lost–by a very small margin, but it lost nevertheless. Hence, for the HRPP the choice today is to be democratic or dictatorial. Unhappily, what is appears to be going on in Samoa is not an attempted coup by the FAST party after its victories in the April election and in the Supreme Court. Instead, it is a variation on an (attempted) “constitutional” coup carried out by the defeated HRPP.
That brings up the issue of force and outside intervention. The Samoan Police have surrounded the parliament grounds (where FAST are staging a sit-in), but it remains unclear as to who they are are loyal to. Perhaps under the circumstances we should be thankful that Samoa does not have a military. But if the Police are loyal to the Head of State (who is a former police officer as well as an ordained minister) rather than the Samoan Constitution, then the authoritarian “auto-coup” could be successful.
There is more. Under the terms of the 1962 Friendship Treaty signed between Samoa and New Zealand, NZ is duty-bound to come to Samoa’s aid in a time of crisis. As unpalatable that may be given NZ’s history with Samoa and however unforeseen this particular crisis may be, it falls within the scope of the Treaty. But its invocation depends on an official request from Samoa so the issue is who has the legal right to issue that request should they deem it necessary to do so.
Given the circumstances, a legal request can only come from the legitimately elected government that has Samoan Supreme Court sanction. That would be a FAST-led coalition. But it runs the risk of provoking large scale unrest between political factions if the Samoan Police side with HRPP and people decide to take matters into their own hands with street violence. That then raises the question of the nature of any NZ intervention if the Friendship Treaty is invoked. Given NZ-Samoan history, a minimal amount of force should be used, with the NZDF (if need be) only used in a support role for NZ Police intervention units.
Most importantly (and pressingly), diplomacy can avoid invocation of the Treaty and thereby help avert intervention. MFAT needs to be on the case now because it is quite possible that other foreign actors with vested interests in Samoa seize the opportunity to extend their influence in it by favouring one side or another in the impasse. So diplomatic urgency is required for three compelling reasons: 1) to avoid invocation of the Friendship Treaty as a means of resolving a political dispute; 2) to preserve Samoan democracy in the face of authoritarian resistance from within; and 3) to prevent extra-regional (and non-democratic) actors to influence how the political process plays out.
The Samoan diaspora can help in this regard by signalling support for democracy. Although Samoan expats cannot vote in their home elections (thanks to Tess Newton Cain for the head’s up), it would be helpful if expats voiced support for the political system rather than a partisan preference given a contentious outcome. That could assist in easing partisan and social conflict in their homeland.
At the end of today the new FAST majority was sworn into office by the Supreme Court in the Supreme Court building rather than parliament because they were locked out of the Folo by the Clerk and Speaker of the House, both HRPP minions. The farce–some say typical of recent Samoan politics– is now about symbolism rather than the substance of political change, as if the location of the investiture ceremony and who gets to sit where when it comes to exercising governmental authority matters for the exercise of elected sovereign power. To his credit, the sitting Police Commissioner has taken an agnostic stance about the political shenanigans and seems disposed to adhere to constitutional edicts and respect for the rule of law. If that is the case, no foreign intervention is necessary and Samoan bureaucrats do not need to look to a particular building for their instructions when it comes to the continuity of State business. All that is needed now for a peaceful transition that reaffirms Samoans commitment to democracy is for foreign governments to recognize the realty of the situation. Word to the wise: It is all over but the HRPP shouting, and the sooner that they shut up or are ignored, the better for Samoa things will be.
As is often said: time to move on. The next days will tell if Samoa takes a political step forward or backwards. Best then, to illuminate and encourage the path ahead.
Proportionality and avoidance of collective punishment.
Not wanting to get into an endless debate here, but as a political person I cannot pass on making a small comment on the current Israeli-Palestinian conflict. I do not pretend to be a subject expert on the tortured history of Israeli-Palestinian relations and am not about to get into the finger-pointing and “whataboutism” surrounding the latest precipitants of collective violence, but as a student of armed conflict (yes, there is such thing), here it goes.
Among many others, there are two principles embedded in the laws of war (jus in bello): in the conduct of armed operations the use of force must be proportional and discriminate; and collective punishment of unarmed populations must be avoided. Even when not specifically phrased in these terms and whether done by state or non-state actors, behaviour that violates these principles are classified as war crimes. The legal work on this subject is voluminous.
Unfortunately, these norms continue to be regularly violated. In the desire to apply superior asymmetric force to an adversary, armed forces lacking a firm moral compass or professional ethos disregard these principles as a matter of course and yet at their peril (think of the Syrian military as a recent example). Conversely, weaker armed groups use disproportionate and indiscriminate force against non-combatants to compensate for their inability to prevail in a conventional (and rules bound) force-versus-force confrontation (think of Daesh). Whichever the reason, disproportionality and collective retribution lead to indiscriminate violence against innocents, which opens up the perpetrators to legal consequences or replies-in-kind should there be no legal consequence.
If eye-for-eye retribution is to be avoided, regardless of who they are and the cause that they espouse, those who order and carry out attacks in violation of these principles must be legally held to account. If not addressed by their own judicial means, there is a place for that to happen. It is called the International Criminal Court (ICC) in The Hague. However, there is a problem with adjudicating justice via the ICC because it depends on it being recognised by sovereign states and objectively supported by the most powerful among them. Unfortunately, countries like Israel, Iran, Russia, the PRC, Turkey, most Sunni Arab states and the US do not recognise the ICC, so its scope of authority is limited at best.
The Palestinian Authority recognises the jurisdiction of the ICC but Israel and Hamas do not. Israel argues that Palestine is not a sovereign state in spite of its non-member observer status in the UN (the ICC is a dependency of the UN) so cannot be party to the Rome Statute that established the ICC. It also argues that Israel has its own investigative bodies so does not need ICC interference in its affairs. Hamas is not recognised as a sovereign governmental body even though it administers the Gaza Strip (in a division of authority with the Fatah-led Ramallah-based administration that is recognised as the Palestinian Authority), so is excluded from ICC jurisdiction even if its members can be prosecuted by it (as is the case with Israelis). In addition, because it is not a party to the Rome Statute, Hamas refuses to recognise the ICC as an instrument of accountability. Because of the lack of universal recognition, the ICC cannot gain UN Security Council (or even General Assembly) approval to extend its jurisdiction to non-signatory states.
Even so, the ICC has (perhaps as an aspirational rather than practical goal) on-going investigations against both Hamas and Israel dating back to 2014 and has launched another against both sides as a result of the current conflict. It is more than likely these will be fruitless unless the international community coalesces around a demand for accountability for war crimes in this ongoing tragedy. Specifically, the time has come for larger powers to use their diplomatic strength to support the ICC investigations against Hamas and Israel and thereby put on notice those on both sides who order and carry out war crimes that they will be prosecuted for their actions.
Again, this is not about who started what or re-litigating historical grievances. It is about trying to stop the commission of war crimes once armed conflict is engaged. The ICC can investigate the veracity of claims of civilian targeting and can charge commanders and political leaders on both sides for authorising attacks on them (the evidence is already available on video). It can then issue international arrest warrants for the accused that, if not enforced inside of their own territorial jurisdictions, will be enforceable if they try to leave the safety of them (think of Pinochet when he went to visit Maggie Thatcher and wound up under de facto house confinement for months because he could not leave Britain without risking arrest for crimes against humanity–in his case against his won people). This type of move is therefore a holding to account for current and past crimes and a deterrent against future crimes. The impediments to doing so are many but the need to do so is even greater.
The desire to use the ICC as an agent of justice and deterrence may be wishful thinking given contemporary realities but it seems that with enough support in the wider international community, such an ICC intervention could be a prelude to the political settlements required for peace. And even if its potential use only helps stop the current fighting, then a small defense of humanity will have been served.
Between appeasement and confrontation.
The worm has turned when it comes to the relationship between the People’s Republic of China (PRC) and the West. Something has happened to sour the relationship beyond repair, and the strains are not limited to US-PRC, Australian-PRC or UK-PRC bilateral relations. Other countries, notably in the EU and Southeast Asia and including traditional rival India, have replaced two decades of offering warmth and goodwill with increasingly frosty and suspicious attitudes towards the PRC. That seems to be due to a combination of PRC militarism and belligerence in places like the South China Sea, Hong Kong, Taiwan and the Line of Control in the Himalayas separating it from India, but also as a result of Chinese sharp power influence operations in liberal democracies, its coercive trade diplomacy, ongoing Chinese cyber espionage, cyber theft and cyber warfare campaigns launched against a swathe of countries (including New Zealand), its dollar and debt diplomacy in Africa and South America where debt for equity swaps are accompanied by the colonisation by Chinese labor of critical infrastructure sites in countries lacking the resources to undertake large scale projects like port modernisation or power generation, and the adoption of “wolf warrior” diplomacy where insults and bullying have become mainstays of PRC diplomatic discourse, particularly but not limited to the issue of human rights and adherence to international norms.
With regards to the latter, in some cases Chinese behaviour is so egregious, such as stationing hundreds of fishing boats outside the marine reserve surrounding the Galapagos Islands or off the southeastern and southwestern coasts of South America and Southern Africa, often using the cover of night to poach in the Exclusive Economic Zones (when not territorial waters) of various countries, that countries otherwise prone to welcome the PRC as an antidote to traditional US or colonial power dominance have started to review their positions with regards to it.
The faith once placed in incorporating the PRC as a good global citizen into the community of advanced nations by admitting it into international organisations such as the World Trade Organisation and giving it leadership roles in others like the World Health Organisation and various UN agencies has not yielded the results that were hoped for. Instead, the errors of so-called modernisation theorists of the 1950s were repeated: rather than encouraging Chinese democracy by exposing it to “Western” values and helping expand its middle class on the back of increased international trade opportunities and the corresponding rise in material opportunities associated with it–something that was thought would lead to a better appreciation by and reproduction of democratic values by those emerging middle classes who would grow to see democracy as the political equivalent of the “free” economic market–under Xi Jinping the PRC has become more authoritarian, more state capitalist, more territorially expansionist, more normatively untrustworthy and more militarily bellicose. Instead of a global good citizen, it is now increasingly seen in the West as a very large bully on the world stage.
This does not absolve the US and various colonial powers of their histories. But it points to the fact that the thirty year period of relative inter-state peace after the end of the Cold War is coming to its conclusion. What lies ahead is unknown but it is likely to be marked by conflict of one sort or another or a combination thereof. The strategic postures of the US, UK, France and Australia all now explicitly identify the PRC as the primary military “peer competitor” (i.e. the enemy) that they must prepare to fight. Even NZ’s defense posture has shifted from unconventional warfare scenarios against irregular non-state actors to involvement in interstate conflicts (although the focus on peacekeeping operations remains). Reflected in defense procurement programs over the next ten years, the shift in war planning is answered by Chinese redoubling of its efforts to expand its fleet and improve the sophistication and size of its land and air-based forces. It also has renewed its bilateral military ties with Russia and courted the alliance of a variety of strategically important authoritarians regimes such as Iran and Turkey. It seems that it is only a matter of time before either by miscalculation, misperception or misadventure it will be involved in an armed engagement with a Western or Western-backed adversary, at which point the escalatory and expansionist potential of such conflict is limited only by the threat of nuclear war.
This puts small states like NZ between a rock and hard place. The diplomatic pressure is being felt in Wellington and Nanaia Mahuta’s speech to the China and New Zealand Business Council reflected the attempts to massage the stresses now apparent in its relationship with the PRC. The question is whether NZ can continue to employ its “softly-softly” approach in the face of the Western turn against the PRC and the latter’s increasingly acerbic responses to criticism of its actions at home and abroad. There can be little doubt that at this juncture if push comes to shove NZ will side with the West as a matter of values and principle. It has signalled as much and, with its commitment to diversifying its trade relations outside of the bilateral ties with the PRC, is setting the pragmatic grounds for doing so even if the short term costs of any deterioration in the relationship with the PRC proves onerous and wide-spread throughout the economy. But so long as the quarrel between Great Powers is limited to podiums and pens, then NZ can hope to finesse the contradictions in its strategic posture.
The answer on how to do so may lay in thinking of NZ’s position in the face of the US/West-PRC rivalry as a strategic balancing act in which the fixed points are appeasement versus confrontation and the slackline between the two is cooperation. The key is to find an equilibrium point along that line given specific issues and changing circumstances. There is plenty of common ground for NZ to serve as a honest broker and fair interlocutor when it comes to PRC-West relations even as it reaffirms its commitment to Western liberal values. Pragmatism and principle will undoubtably factor into the centre of gravity upon which to balance NZ foreign policy in that regard. The goal is to be nimble when demonstrating a desire to cooperate on selected issues given the competing demands by trade and security partners to appease or confront each other. Sometimes the equilibrium point may be closer to the PRC position, sometimes it will tilt in favour of the Western stance. They key to success lies in refraining from entering into broadly binding agreements or commitments and to adopt an issue-by-issue, case by case approach that serves to insulate any particular bilateral decision from the larger geopolitical struggles surrounding it.
That may turn out to not be feasible if the contending Great states do not accept NZ’s “siloed” approach and will not be a permanent foreign policy solution given the apparent inevitability of a Great Power stand-off in the medium term future. But it provides a means of finding the optimal equilibrium point on the diplomatic slackline that is NZs transitional position vis a vis China and the West until the new multipolar world system is firmly established.