Obama and a diverse United States Judiciary: Lessons for India

Having racial, gender and experiential diversity in the American judicial system were one of Obama’s top priorities when he was elected to the White House. Reports suggest that he may well have succeeded in portraying the true multi-ethnic rubric of the U.S.  through the federal judicial benches, at both the SCOTUS and the Courts of Appeals.

Of the 97 successful nominations made by the Obama administration, almost half were women, a quarter of them were, several openly-gay judges and Asian-Americans too.

In India, although the Supreme Court has had a history of wide regional, albeit linguistic and cultural representation, gender diversity has been hard to come by. Till date, only four women (three retired: Justice Fathima Beevi, Justice Sujata V. Manohar, Justice Ruma Pal; and one sitting: Justice Gyan Sudha Misra) have donned the role of a judge of the Supreme Court of India. In wake of the increased representation of women in local municipal governments and the pending legislation on reservation for women in the State and Central Legislatures, the judicial system has to catch up with the true multicultural, multi-ethnic and egalitarian dynamic that India exemplifies.

Osama bin Laden and Pakistani Sovereignty

A recent ASIL Insight deals with certain burning critiques and the controversy surrounding the American unilateral action of killing Osama bin Laden on Pakistani soil. Many, such as former Pak President Musharraf, claim that keeping Pakistan in the dark about this action, by the US Navy SEALs, was a violation of Pakistani sovereignty.

Elaborating the “Unwilling or Unable” Test, the Insight states:

“If the territorial state is either unwilling or unable, it is reasonable for the victim state to consider its own use of force in the territorial state to be necessary and lawful (assuming the force is proportional and timely).  If the territorial state is both willing and able, the victim state’s use of force would be unlawful.”

This seems to be the justification that is attributed to the US action as being a legitimate act in accordance with international law of ‘self-defense’.

This test, in reality, can lead to many unilateral interventions that may be undesirable. First, it has to be restricted to only use against the international ‘Legal War against Terror’, that too after satisfying the proportionality test. If it is used in every situation, unrestrained use will only lead to chaos. Second, unilateral actions which may threaten to or actually violate international legal norms has opened a can of worms and any such actions in the future may lead to tense and sour diplomatic ties between nations where peace is generally hard to come by. For example, Israel & Palestine, Pakistan and India.

The USA has set a perilous precedent with Osama, much to the detriment of relations in the fragile international societal fabric.

Some other authors (here, here, here, here, and here) have received enthusiastic responses to their diverse opinions on the issue of the legality of the US Operation in Pakistan. The legality or illegality of the killing of Osama bin Laden has led to a variety of opinion on the webspace. See here, here, here (Foreign Policy), and here.

What about the documents and possible clinching information that was ostensibly scoured out of bin Laden’s hideout? Emerging reports at BBC and CNN suggest that al-Qaeda was planning more attacks on the United States territory to debilitate the transport and rail systems in major metropolises. The necessary argument follows from this newly discovered data is that the killing of Laden was ‘pre-emptive‘. The looming question remains: has this reduced the terror threats that many nations today face?

Meanwhile, the killing has drawn mixed responses from various Islamic states, many criticizing the American action. Many call Laden a martyr, a man who stood up for the Jihadi cause to eliminate radicalism from the world. Not shocking considering the usual anti-West sentiment that is apparent in those countries. This reaction which was expected, justifies why Laden’s body was buried in the sea.

It looks like Osama’s death has raised many questions rather than put an end to them.