Muzzle Law of Poland: An attack on the Independence of Judiciary
Publisher
Global Views 360
Publication Date
August 16, 2020
URL
Andrzej Duda, the President of Poland | Source: Wojciech Grabowski via Wikimedia
On February 4, 2020 the president of Poland, Andrzej Duda signed a law that prohibits the country’s judiciary to question the appointment of judges by the President and bars them from being involved in political activities. The law also prohibits judges to seek guidance from the EU Court of Justice on appointments by the National Council of Judiciary (NCJ) of Poland.
Opposition parties condemned the law and Supreme Court president Malgorzata Gersdorf termed it as “Muzzle Law”.
In December 2019, the Sejm, the lower house of the Polish parliament passed the bill that would penalize judges who criticize the judicial reforms of the ruling Law and Justice party. It was sent back by the upper house for further discussion and a vote. However Sejm, using its superior power, enacted the bill, which the president signed on February 4, 2020, making it a law in the country.
The SC of Poland had earlier ruled on December 5, 2019 that the NCJ is not an independent body. Again on January 23, 2020 the SC in a ruling termed the appointment of the judges by the NCJ as illegal stating their apprehension that they may not be free from political influence. The Justice Ministry, quite predictably termed the SC verdict as a “serious violation of the law”.
The law has drawn criticism from lawmakers as well as legal scholars across Europe and the European Union. On 11th January 2020, hundreds of judges from across Europe marched in Warsaw to protest against the enacting of the controversial law. Thousands of lawyers and residents joined in with many waving Polish and EU flags as they marched from the SC to the parliament. "We have come here to support the Polish judges but we are not politicians. We are here about the rule of law, not about politics." John MacMenamin, an Irish Supreme Court judge, told reporters.
In February 2020, a group of 44 ICJ Commissioners and Honorary Members along with senior judges, lawyers and legal scholars from across the world released a statement in which they said, “it is clear that the separation of powers, the independence of the judiciary, and the capacity of Polish judges to uphold the rule of law are now severely compromised. Judges’ freedom of expression, association and assembly are under immediate threat.”
Ever since it came to power in 2015, The Law and Justice Party of Poland, has been working towards dismantling the independence of the judiciary, terming it judicial reforms. There has been opposition to these actions by the opposition parties, judicial bodies as well as European Union.
EU flags at the European Commission Berlaymont building Brussels, Belgium | Source: Guillaume Périgois via Unsplash
Late in 2017, the European Union had initiated what it called “unprecedented proceedings” against Poland. The move was a response to the worrying reforms in the judiciary that were being enforced by the government. The EU had stated back then that these “systematic threats” could see Poland losing its EU voting rights.
On 29th April, 2020, The EU started a new legal case against the nationalist Polish government in response to the adoption of the “muzzle law”. The EU further added that it was giving Poland two months to address the issues pertaining to the law. “This is a European issue because Polish courts apply European law. Judges from other countries must trust that Polish judges act independently. This mutual trust is the foundation of our single market,” said Vera Jourova, the Czech member of the executive Commission who is responsible for upholding the EU’s democratic values at a news conference.
A few European legal scholars have warned that the developments in Poland are a threat to the entire legal system of the EU. Despite all the criticism and pressure from the EU, the Polish government is yet to respond meaningfully to the growing concerns over the assault on Poland’s judicial system and its potential EU exit.
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This article explains the recent tensions between Iran and the United States, and presents it as a case of the ‘Security Dilemma’ theory in practice.
The Persian Gulf Crisis 2019-20
To understand the current crisis in Persian Gulf, we must look at the Iran Nuclear Deal of 2015, also called the Joint Comprehensive Plan of Action (JCPOA).
The JCPOA was signed between The E3/EU+3 (France, Germany, the United Kingdom, the Russian Federation, and the United States, China, with the High Representative of the European Union for Foreign Affairs and Security Policy) and the Islamic Republic of Iran, to permit nuclear capabilities for Iran exclusively for peaceful purposes, in exchange for the lifting of crippling sanctions.
JCPOA terms:
International Atomic Energy Agency representative in Tehran, Iran for talks on JCPOA implementation | Source: Tasnim News Agency
Under this accord, Iran had to reduce its Uranium stockpile by 98% to 300kg, maintain its level of enrichment at 3.67%, reduce the number of centrifuges, and only keep one of its Uranium enrichment plants active. It also had to redesign its reactor at Arak, so it could not produce weapon’s grade Plutonium. Until 2031, Iran is not permitted to make heavy-water reactors.
Further, it was to permit itself to regular inspection of their nuclear site by the global nuclear watchdog, the International Atomic Energy Agency (IAEA).
In return, Iran gained over $100bn of frozen assets overseas, and was permitted to allow trading in oil in international markets and use the global financial system for trade.
Trump Administration’s Revoking of the JCPOA
In 2018, the Trump administration reimposed some of the sanctions in Iran, despite Trump's election promise to reduce involvement in the Middle East. Countering the re-impositions, Iran threatens to resume Uranium enrichment. In May 2019, Iran suspends nuclear deal commitments, and gives other signatories a 60-day deadline to protect it from US sanctions, before resuming Uranium enrichment. The International Atomic Energy Agency (IAEA) reported that Iran had already increased Uranium production, but is unclear by how much.
President Trump signing executive orders, imposing sanctions on Iran | Source: Shealah Craighead via White House
In May 2019, the US increased military deployment in the Persian Gulf, reportedly to prevent what the termed was a “campaign” between Iran and its proxies to threaten US oil shipping in the Strait of Hormuz.
The Tanker Crisis
In June 2019, two tankers were set ablaze in the Gulf of Oman, using mines. The US blamed Iran for these blasts, but Iran denied the charges.
In the same month, Iran Islamic Revolutionary Guard Corps (IRGC) shot down a US surveillance drone, escalating tensions and causing the US to name the IRGC as a terrorist organization.
In July 2019, the British Royal Marine Commandos seized an Iranian tanker off the coast of Gibraltar, as it was suspected to be en route to Syria, in violation of EU sanctions. The US declared that anyone assisting the ship would be considered an accomplice of terrorist groups, namely the Iran’s Islamic Revolutionary Guard.
In retaliation, Iran seized British-flagged tanker in the Strait of Hormuz.
The Iranian tanker was released six weeks later, on the condition that they do not unload their cargo of 2.1million barrels of oil in Syria.
December Air Strikes
In December 2019, the K-1 Air Base in Iraq was attacked by an unconfirmed party, killing one American contractor. This base hosts Americans (amongst other nationalities) who are responsible for training Iraqi troops in counter-terrorism. The Americans alleged that the attack was carried out by Kataib Hezbollah, which denies it. Kataib Hezbollah is a rebel group (recognized as a terrorist group by the US) backed by Iran. The Iraqi’s alleged that ISIL was responsible.
In retaliation for the killing of the American Contractor, the US launched air strikes on the weapons depot and command centres of Kataib Hezbollah in Iraq and Syria in the same month, reportedly killing 25 militiamen.
Iraq and Iran condemned the attack, and on 31 December, 2019, Iraqi militia attacked the US Embassy in Baghdad. In response, the US conducted airstrikes at the Baghdad International Airport in January 2020, killing the Commander of Iranian Quds Force, General Qasem Suleimani, the second most powerful man in Iran.
These escalations, placed within the context of US invasions of Iraq and Afghanistan, provide a good example of the Security Dilemma theory and how it plays out in practice.
What is the Security Dilemma?
Before delving into the theoretical definitions it is worth reminding ourselves that States do not behave as they do because a theoretical model demands them to. Rather, most theoretical models are based on observations of real-world behaviour of states, and seek to explain said behaviour. The Classical Realist theory, of which the Security Dilemma is a part, is amongst one of these, and I endeavour to highlight some of the key points of this theory.
The Classical Realist theory holds that States (or State-actors) are the basic unit of any international system. They are the most important actors, as there is no authority higher than them. The international system is fundamentally anarchic, with every actor left to their own devices with no supranational oversight. Each State finds it in their own self-interest to provide their own means for security. Security comes with the ability of the State to exercise its power, and thus Power Hegemony and Security are inextricably linked. In other words, since no State can rely on a supranational authority to provide security (an every-man-for-himself scenario), it is in each State’s best interest to understand the power distribution across all state-actors and maximize power for themselves, as the ultimate security. This results in a zero-sum game, with one actor’s loss being another’s gain. In providing absolute security for one’s own State, one leaves others insecure. The resulting power imbalance manifests in conflict, and for the Realist it follows, therefore, that Conflict is the natural state of affairs.
This, in essence, is the Security Dilemma: Striving for absolute security leaves others absolutely insecure, thus providing powerful incentives for an arms race, leading to further conflicts. It is little wonder that this is also called the Spiral Model, for in the very process of striving for security, one gives birth to escalating conflict.
How does this relate to the Persian Gulf Crisis?
The US has long followed the Realist model, believing that in a state of fundamental anarchy, it is justifiable to have nuclear capabilities and have intense militarization, as a means of gaining absolute security (justified by ‘offense is the best defence’). However, the US is also known for disallowing Weapons of Mass Destruction and nuclear capabilities in other countries, despite having such resources by itself. Here we see the Security Dilemma: to maintain absolute security, the US cannot allow others to be similarly armed. This is seen clearly in the signing of the JCPOA.
Consider the case from Iran’s point of view. As a result of the US war against Al Qaeda and Taliban in Afghanistan and overthrow of Saddam Hussain in Iraq, there has been constant American presence in both the countries bordering Iran since almost two decades. That this poses a threat to Iran is obvious: the US caused fundamental regime changes in Iraq after the war; with its manpower and firepower, alongside its strategic placement on both sides of the Iranian border, the US is at a vantage point to attack Iran – placements that are, paradoxically, intended to guarantee American security.
The American show of strength and the impending danger of conflict leave Iran with two choices: Forge alliances with US adversaries, such as China or Russia, to deter Iran-US conflict, or be nuclear-armed. Iran managed both, causing, in effect, a nuclear arms race that culminated in the JCPOA. In retrospect, the JCPOA seems like the perfect solution to the Security Dilemma in US-Iran conflicts: not only does it allow Iran to benefit from its suspensions of nuclear capabilities, it also ceases the arms race and de-escalates the conflict. In short, it is the Diplomat’s way out of the Security Dilemma, guaranteeing security without arms.
The Trump administration’s call to reimpose sanctions on Iran only serves to re-ignite security concerns for both countries. With Iran having ousted its JCPOA commitments as of January 2020, we can only hope that de-escalations will soon follow to prevent the otherwise inevitable spiralling into arms race and false absolute security.
