Archive | September, 2011

Reflections on the Abbas Statehood/Membership Speech to the UN General Assembly

29 Sep

            There is a natural disposition for supporters of the Palestinian struggle for self-determination to suppose that the Palestinian statehood bid must be a positive initiative because it has generated such a frantic Israel effort to have it rejected. Despite the high costs to American diplomacy in the Middle East at this time of regional tumult and uncertainty, the United States has committed itself to exercise its veto on Israel’s behalf if that turns out to be necessary. To avoid the humiliation of disregarding the overwhelming majority opinion of most governments in the world, the United States has rallied the former European colonial powers to stand by its side, while leaning on Bosnia and Colombia to abstain, thereby hoping to deny Palestine the nine votes it needs for a Security Council decision without technically casting a veto. On the side of Palestinian statehood one finds China, Russia, India, South Africa, Brazil, Lebanon, Nigeria, and Gabon, the leading countries of the South, the main peoples previously victimized by colonial rule. Is not a comparison of these geopolitical alignments sufficient by itself to resolve the issue of taking sides on such a litmus test of political identity? The old West versus the new South!

            Add to this the drama, eloquence, and forthrightness of Mahmoud Abbas’s historic speech of 23 September to the General Assembly that received standing ovations from many of the assembled delegates. Such a favorable reception was reinforced by its contrast with the ranting polemic delivered by the Israeli Prime Minister, Benjamin Netanyahu, who insulted the UN by calling it ‘the theater of the absurd’ while offering nothing of substance that might make even mildly credible his strident rhetoric claim to support ‘peace,’ ‘direct negotiations.’ and ‘a Palestinian state.’ The deviousness of Netanyahu was made manifest when a few days later the Israeli Government announced that it had approved 1,100 additional housing units in the major East Jerusalem settlement of Gilo. This was a bridge too far for even Hilary Clinton who called the move ‘counter-productive’ and Europeans regarded as deeply disappointing and confidence-destroying, so much so that Netanyahu was openly asked to reverse the decision. There are a variety of other indications that additional settlement expansion and ethnic cleansing initiatives will be forthcoming from Israel in the weeks ahead. Are not such expressions of Israeli defiance that embarrasses even their most ardent governmental supporter enough reason by itself to justify a Security Council recommendation of Palestine statehood at this time? Would it not be worthwhile at this crucial moment to demonstrate the wide chasm separating increasing global support for the pursuit of justice on behalf of the Palestinian people from this domestically driven American reliance on its ultimate right of veto to block Palestinain aspirations? Would it not be well to remind Americans across the country, including even its captive Congress, that its own Declaration of Independence wisely counseled ‘a decent respect for the opinions of mankind’? If ever the use of the veto seems ill-advised and deeply illegitimate, it is in this instance, which the Obama Administration seems to acknowledge, or otherwise why would it use its leverage to induce allies and dependent states to go along with its opposition to Palestinian membership in the UN?

            Turning to the speech itself, the language of recognition may be more notable than the substance. Never before in an international forum had the voice of the Palestinian Authority spoke of Israel’s occupation policies so unabashedly–as ‘colonial,’ as involving ‘ethnic cleansing,’ as imposing an unlawful ‘annexation wall,’ as creating a new form of ‘apartheid.’ With admirable directness, Israel was accused of carrying out the occupation in a manner that violated fundamental rules of international humanitarian law, and cumulatively amounted to the commission of crimes against humanity.

             In the course of his speech Abbas tried hard to reassure the Palestinian diaspora on two matters of deep concern: that the Palestine Liberation Organization (PLO) will continue to represent the Palestinian people, who are the ultimate beneficiaries of the most fundamental of Palestinian rights at stake, the right of self-determination. The issue here is lost on almost all observers of the conflict, that the Palestinian Authority (PA) of which Abbas is president is a subsidiary body that was created by the PLO with a temporary mandate to administer Palestinian territory under occupation, and thus it was important to allay suspicions that the PLO was an intended casualty of the statehood bid so as to territorialize the conflict and give the Abbas and PA leadership complete representational control over the Palestinian role at the UN. The deep concern here relates to the adequacy of representation relating to the Palestinians living in refugee camps in neighboring Arab countries or in exile around the world. In the Palestinian National Council, 483 of its 669 members are drawn from Palestinians not living under occupation. President Abbas used the clearest possible language to reaffirm the position of the PLO just prior to enumerating the five conditions guiding his leadership role: “I confirm, on behalf of the PLO, the sole legitimate representative of the Palestinian people, which will remain so until the end of the conflict in all its aspects and until the resolution of the final status issues.”

            In the background of this representation issue is an anxiety that Palestinian refugee rights will be forgotten or marginalized in the course of striking a deal that is build around a ‘land for peace’ formula. Again Abbas inserted some reassuring language in his speech to the effect that peace will depend on “a just and agreed upon solution to the Palestine refugee issue in accordance with resolution 194,” which unconditionally affirmed a Palestinian right of return. Relevantly, Netanyahu in his speech alluded to the “fantasy of flooding Israel with millions of Palestinians,” which is his way of both dismissing the rights of Palestinian refugees, especially as derived from the massive dispossession of Palestinian in 1948, and insisting on the Palestinian recognition of Israel as ‘a Jewish state.’ This insistence combines  demographics with democracy, contending that ever since the promise of Lord Balfour on behalf of the British Government to a leader of the Zionist movement in 1917 there were continual acknowledgements that Israel was a Jewish state. Netanyahu made short shrift of the claims to dignity and equality of the 1.5 million Palestinians existing under an array of discriminatory burdens by saying merely that Israel treats its minorities in a manner that respects their human rights. It should be recalled that the Balfour Declaration, a notoriously colonial disposition, did not promise the Jewish people a state, but rather ‘a national home,’ and that it was to be established in a manner that did not interfere with the ‘civil and religious rights of existing non-Jewish communities in Palestine.’ Human rights and democracy have become significantly universalized during the last several decades. This development implies that the governing structures of society embodied in the state must renounce any claim of ethnic or religious particularity. Political legitimacy in the 21st century should not be accorded to any state that claims to be a Jewish state, an Islamic state, or a Christian state. Such statist neutrality should be set forth as an element of legitimate statehood by formal action at the United Nations. Such a declaration would impose a limit on the right of self-determination by denying to peoples the right to establish ethnic or religious states. In a globalizing world ethnic and religious diversity are present in every major state, and needs to be respected by unfurling a banner of equality that grants religious freedom to all faiths and allows collective identities to be expressed without prejudice.

            For some widely respected Palestinian activists and NGOs, these assurances were not enough. With the formidable intellectual support of Oxford professor, Guy Goodwin-Gill, the very idea of Palestinian statehood compromises the representational rights of diaspora Palestinians within UN arenas of decision, and potentially deforms future negotiations by according predominance to territorial priorities. Guy-Goodwin’s analysis was built around the general view that a state could never adequately represent people outside its borders. Given existing realities this would mean disenfranchising the Palestine refugee and exile population that comprises a majority of ‘the Palestinian people’ who are as a collectivity the holder of the overarching entitlement embodied in the right of self-determination. Such a view may be technically correct, and operationally prudent, but it overstates the clarity of the legal implications of Palestinian statehood and UN membership, while understating the degree to which what is being questioned are the psycho-political priorities of the current PA/PLO leadership.  To further strengthen and promote the unity of the Palestinian global solidarity movement it is crucial to continue to seek accommodation between territorial and non-territorial dimensions of the Palestinian struggle, and thus to minimize intra-Palestinian divergencies, including the ongoing rift with Hamas. Here again Abbas had some reassuring words to say about the future implementation of the reconciliation agreement reached between the PLO and Hamas in June, but the failure of Hamas to endorse the statehood/membership bid at this time raises doubts about whether cooperation between these two political tendencies of Palestinians living under occupation will be forthcoming in the future.

           There are, against this background, some further grounds for concern that result from gaps or disappointing formulations in the Abbas speech. One glaring gap was the failure to address the accountability issues associated with the non-implemented recommendations of the Goldstone Report arising out of war crimes allegations associated with massive attacks (Israeli code named ‘Operation Cast Lead”) on Gaza between 27 December 2008 and 18 January 2009.  In an important statement issued by the Palestinian Centre of Human Rights, jointly with several respected human rights NGOs, the PLO was given responsibility for doing their best to see that these recommendations for referral to the International Criminal Court be carried out.  In the words of the statement, “should the PLO choose not to pursue the accountability process initiated by the Report of the UN Fact-Finding Mission – at the expense of the Statehood initiative – this will amount to the prioritization of political processes over victims’ fundamental rights; indicating acceptance of the pervasive impunity that characterizes the situation in Israel and the occupied Palestinian territory.”

         Although implicit in the Abbas speech, the systematic refusal of Israel to comply with international law, was not accorded the emphasis in deserves. Given this reality, it was comic irony for Netanyahu to invoke international law in relation to the captivity of a single Israel soldier, Gilad Shalit; of course, international law should be observed in relation to every person, but when Israel subjects the whole of Gaza to a punitive blockade that has lasted for more than four years, imprisons thousands of Palestinians in conditions below international legal standards, and refuses to implement the near unanimous Advisory Opinion of the World Court on the unlawfulness of its annexation wall, it has lost all credibility to rely on international law on those few occasions when it works to its advantage.

           Even more disturbing, because so relevant to the present posture of the conflict, was the rather bland expression of willingness on the part of the PLO to resume direct negotiations provided that Israel imposes “a complete cessation of settlement activities.” As there is no chance that this condition will be met, it may not be so important for Abbas to question the value of direct negotiations given their repeated failure to move the parties any closer to peace during the past 18 years. In fact, Israel has cloaked settlement expansion, ethnic cleansing, and a variety of encroachments on what might have at one time become a viable Palestinian state, with the charade of periodic peace talks held under the non-neutral auspices of the United States. What Abbas could have done more effectively, given the unlikelihood of an affirmative Security Council recommendation on UN membership, is to couple the statehood/membership bid with the demand of a new framework for future negotiations that includes both Israeli commitments to abandon settlement expansion in East Jerusalem as well as the West Bank, and more importantly, selects a state or regional organization to provide non-partisan auspices for the talks. Such a demand would have made clear that the PLO/PA was no longer willing to play along with the Oslo game that has more than doubled the settler population and allowed Israel to invest in an expensive settler only infrastructure that is unlikely to be ever voluntarily dismantled. It is past time to declare the Oslo framework of direct negotiations as terminally ill, futile, and illegitimate, and incapable of drafting a roadmap that leads anywhere worth going! For the UN to be one of the four Quartet members, especially given the American hegemonic control over the diplomacy on the conflict, also warranted a harsh comment by Abbas.

          What the future holds is more uncertain than ever. The mainstream media has tended to criticize both Israel and the PA/PLO as if their respective behavior was equivalent. For instance, the Palestinian statehood/membership initiative is treated as equally provocative as the Israeli announced intention to expand the unlawful Gilo settlement. Such an attitude does belong in the theater of the absurd, equating a completely legal, arguably overdue plea to be given an upgraded status at the UN with a criminal encroachment on basic Palestinian rights associated with territory under occupation, as recognized by Article 49(6) of the Fourth Geneva Convention.

           Whether Israel will follow through on its threats to ‘punish’ the PA for undertaking this completely legal initiative remains to be seen. Already there is troublesome indications of widespread settler violence in the West Bank that is either unopposed or backed by Israeli military and security units. As has been observed by the Israeli president, Shimon Peres, Israel will never have a more moderate partner for peace than the Ramallah leadership, and if it undermines its viability it will be demonstrating once again that it has lost its capacity to promote its national interests. It has showed this aspect of decline most dramatically by picking a fight with a resurgent Turkey, and then missing one opportunity after another to repair the damage, which is what Ankara earlier had hoped would happen. As regional developments move toward greater support for the Palestinian struggle, Israel is allowing what might have been a historic opportunity for a sustainable peace to slip away. An acute problem with extremism, whether of the Likud or Tea Party variety, is that it subordinates interests and rationality to the dictates of an obsessive and emotive vision that is incapable of calculating the balance of gains and losses in conflict situations, being preoccupied with all or nothing outcomes, which is the antithesis of diplomacy. This is a path that inevitably produces acute human suffering and often leads to disaster. It is time for Israelis to abandon such a path for their own sake and the sake of others!

Rethinking Afghanistan After a Decade

19 Sep

This post is a short essay responding to a question about my dramatic change of position on the Afghanistan War with regard to its initial justification and flawed execution. It is both a reconsideration of errors of judgment and reflections on how the world has changed in the course of this decade, focusing on the inability of the United States to grasp either its own decline or the related decline in the historical agency of hard power approaches to security.

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Reading what I wrote about Afghanistan a decade ago reminded me of how much my understanding of the role of war and hard power in upholding security for the nation and the world has changed. Actually, it seems clear to me that my views on Afghanistan back in 2001 were an exception to my general skepticism about Western interventions in the non-Western world, a view formed during ten years of opposition to the American role in the Vietnam War. At the time, with the Al Qaeda attacks so recently seared into my political consciousness, and some anxiety that more attacks of a similar kind were likely to follow, it seemed logical and helpful to adopt a war strategy as part of an overall effort to disrupt the mega-terrorist capabilities to inflict further harm either in this country or somewhere else on the planet. Although I realized that the international law argument for attacking Afghanistan, with the clear objective of regime change, was weak absent the exhaustion of diplomatic remedies, but such considerations were overcome in my mind by the political argument for doing immediately whatever was necessary to uphold security in this country and generally, and the moral argument that any successor government to what was being imposed on the Afghan people by the Taliban would almost inevitably be a step in the right direction. At first, these early assessments of mine seemed vindicated, but now with the benefit of ten further years of military engagement and retrospective insight, a reappraisal is long overdue.

 

There were some reasons for skepticism and worry from the outset of the approach to Afghanistan. The manner by which the air war was conducted, and its failure to adopt tactics designed to have a maximum impact on Al Qaeda capabilities were disturbing to me from the beginning of the military operations. The American military undertaking seemed poorly conceived and implemented, naively relying on untrustworthy coordination with Afghan ground forces that had their own distinct agendas often at odds with U.S. counter-terrorist priorities. This unreliability should have been known on the basis of intelligence and prior counterinsurgency experience. The United States Government, and especially the Rumsfeld Pentagon, were ideologically committed to fighting the war with minimum American ground involvement, thereby avoiding heavy American casualties, and yet achieve the goals of the intervention. This was proclaimed at the time to represent a test case for a ‘revolutionary’ transformation of warfare in which technology displaced troops on the ground. We learned very soon that virtually the entire Al Qaeda leadership had managed to escape across the border to Pakistan along with its main cadre of militant trained fighters.

 

Beyond this central mission failure, the promised regime change in Afghanistan quickly became a costly and obvious fool’s errand. The authority of the new political leadership in Kabul, handpicked by Washington, could hardly extend its writ beyond the capital city despite its dependence on the delegitimizing presence of foreign occupying forces. This led over time to the resurgence and regrouping of a variety of forces of national resistance to foreign occupation, as well as the unexpected revival of the Taliban as both a fighting force and a serious political challenger for control of the country.

 

Faulty perceptions in this post-9/11 period, including my own, ignored the lessons of Vietnam. It was one thing to mount a counter-terrorist operation against the Al Qaida presence in Afghanistan, which was itself an alien intrusion on national political space, but another for the leading country in the West to seek to override the workings of self-determination within Afghanistan so as to impose a governing structure and political culture more to its liking. This renwed reliance on counterinsurgency thinking, of which General David Petraeus, was the most influential voice within the military, sought to overcome memories of defeat in Vietnam by adopting an approach more friendly to and respectful of the indigenous culture and the human rights of the people supposedly being protected. But it is one thing to be abstractly sensitive in these ways, but it is another to remain a benevolent presence while killing the inhabitants of the country, especially its women and children, while simultaneously doing everything possible to minimize risks of injury and death to one’s own troops. In the circumstances that exist in Afghanistan these two sincerely held objectives are often in tension with notable incidents leading to anger either at the scene in Afghanistan or at home in the United States. It is ironic that Petraeus, despite his historical knowledge, political acumen, and his own prior efforts to right the mistakes of the past, relied on drone strikes at a rate of ten times that of his predecessor, resulting in a predictable rise in civilian casualties and popular alienation. The use of sophisticated unmanned aircraft firing missiles at human targets carries to new heights the technological one-sidedness of such counterinsurgency warfare where as much of the risk as possible is shifted to the territorial society and those who pick targets in safety have neither accountability for deliberate or accidental wrongs nor possess any leverage over the political dynamics within the country. It is this disabling irony that has yet to have its proper impact on American policymaking. Our political leaders seem unwilling to learn that military dominance rarely translates into favorable political outcomes at acceptable costs in the early 21st century.

 

Despite the evidence supporting such an interpretation of recent historical trends the mistakes of the past are stubbornly repeated, and such a pattern calls for an explanation. It is necessary to consider the impact of factors that overcome the expected rationality of government decision-making and problem solving. Perhaps, the most important of these is the emergence of what Mark Selden calls ‘the permanent warfare state’ in the United States. The country has for decades made a disproportionate investment in achieving military dominance on a global scale. The existence of such expensive capabilities generate strong bureaucratic and ideological pressures to rely on military approaches to ensure a favorable outcome of international conflicts. After all at present, if the United States spends more than the next ten countries in the world combined, there must be a commensurate political payoff, or else it is extremely discrediting with respect to the use of taxpayer revenues in a setting of intense fiscal concern about government spending..

 

It is this hard power dogmatism that has led the United States, along with its Western junior partners, to engage in a nation-building war in Afghanistan that seems destined for defeat and humiliation. As the Afghan saying goes: “You got the watches, we got the time.” Because the benefits to the United States of persisting in Afghanistan despite the costs seem so uncertain as compared to the clear goals of the opposition to rid the country of foreign occupiers, it seems likely that the longer-term and deeper commitments of the Afghan national resistance will reap eventually the rewards of its persistence. Of course, this prediction is reinforced by the low quality of the Karzai government that undermined its democratizing claim by stealing the most recent faux elections and through its corrupting links to the drug trade and warlords. In the twenty-first century those who cooperate with foreign invaders and occupiers rarely are able to claim ‘mission accomplished’ with any credibility at the end of the day. It is important also to realize that this was not true in the colonial era during which the superior military technology of the colonialists generally prevailed without large losses or major expenditures. Prior to World War II, there was insufficient confidence in the capacity of most non-Western societies to mount an effective national resistance to a determined military intervention, although even here Afghanistan stood out as the one country in Asia that colonial powers found impossible to pacify in a manner that served their interests, with both Britain and Russia failing in their attempts to do so. It is difficult for Americans to appreciate that foreign occupation poses such a stiff challenge to self-determination as to be very rarely viewed as liberating or legitimate by the civilian majority in a country subject to military intervention.

 

Such generalizations need to be distinguished from the sorts of interventions that seem to have been effective in Kosovo in 1999, and maybe again this year in Libya.  In Kosovo, the foreign intervention was a rescue operation in support of a domestic struggle of the Albanian overwhelming majority against what was perceived to be Serbian alien rule sustained by atrocities against Kosovars and posing an imminent threat of violent ethnic cleansing. It was, to the extent that the people of Kosovo enjoyed the status of being ‘a people’ in international law, possible to consider the NATO intervention as being in furtherance of self-determination rather than as an attempt to impose a Western oriented outcome. True, the clarity of such an endorsement of the Kosovo War is qualified by the absence of any UN Security Council authorization for the use of force and by NATO’s controversial reliance on high altitude bombing that killed an estimated 500 civilians on the ground. The post-conflict establishment of Camp Bonsteel, a huge NATO military base also raises questions about the purity of the alleged protective intentions.

 

In the case of Libya, although the NATO operations ignored the limits of the UN Security Council authorization, the military action reinforced a struggle already underway in the country, and backed by a majority of the population, against a hated dictator that was engaging in indiscriminate violence against his own people, and threatening to do worse. It remains to be seen whether the victors in Libya can bring constitutional democracy and an equitable economy to the country, but at least the intervention is highly unlikely to engender national resistance as there is no foreign occupation contemplated. There are already concerns about the prospect of manipulation behind the scenes by the intervening parties to bring big profits to NATO oil companies and construction firms. If these concerns materialize it could be quite discrediting to the nationalist claims of the new Transnational National Council leadership. Nevertheless, as of now, the main point stands: with UN backing, without any intention of foreign occupation and military bases, against an existing cruel, exploitative, and oppressive rule, and in support of an existing oppositional movement, a Western military intervention can achieve its initial goals, but even then not without evoking considerable controversy and raising suspicions about ulterior motives. Phase one is regime change as has taken place with the defeat of the Qaddafi regime, phase two is constitutional state building and equitable and sustainable development that remains to be achieved, and depends on national will and capabilities.

 

There was another major dimension of the Afghanistan War as it appeared in 2001 as compared to the way it seems in 2011. What I failed to appreciate then, and has still not been properly registered in mainstream foreign policy thinking, is that during the presidency of George W. Bush, the grand strategic emphasis was placed on control of the Middle East. This objective of grand strategy took precedence over the successful prosecution of the post-9/11 struggle against terrorism.  The two different undertakings were misleadingly merged in public consciousness by relying on the unifying, yet diversionary label of ‘global war on terror,’ but in fact while Afghanistan was directly linked to the 9/11 attacks the government of Saddam Hussein in Iraq was only indirectly, if at all, linked. The Iraq War launched in 2003 increased anti-American resentment throughout the Islamic world, and was at odds with an all out struggle against Al Qaeda, which would have given continuing priority to consolidating the early gains in Afghanistan and neighboring Pakistan. Instead, after the military attacks on Afghanistan produced the collapse of Taliban rule, the American emphasis immediately shifted dramatically to the Iraq War, and Afghanistan became a forgotten sideshow, which encouraged the steady deterioration of political order in the country, making a mockery of early claims of achieving a liberating political change welcomed by the population. Obama tried to overcome this unfortunate legacy of neo-conservative foreign policy by both promising to end the Iraq War, a commitment that remains problematic and unfulfilled, and a commitment to view the Afghanistan War as requiring renewed attention due to its relevance to the challenge of terrorism.

 

Finally, ten years after 9/11 the road not taken of law enforcement, intelligence collaboration, occasional special forces covert undertakings in foreign countries seems attractive on a number of grounds, and the defense of human rights at home and abroad. It would have avoided the costly, mostly failed efforts in Iraq and Afghanistan. It would have avoided national humiliation associated with the panicky recourse to torture that led to the globally discrediting disclosures of  systematic abuse of detainees at Guantanamo and Abu Ghraib, and a homeland security apparatus containing many features of authoritarian governance. It would have strengthened claims by the United States to provide benevolent world order leadership based on minimizing the role of war and military solutions, while maximizing the role of law, international police cooperation, and diplomacy, including efforts to take steps to acknowledge and overcome the legitimate grievances of the Arab World, especially the American failure to push for a fair and balanced solution to the Palestine/Israel conflict. This approach would have also allowed a greater concentration of the political imagination and the resources of the country on meeting domestic infrastructure problems and addressing such rising global challenges as climate change and persistent extreme poverty. Furthermore, such non-war path in response to the 9/11 attacks could have demonstrated a realization of the limits of hard power approaches to the solution of conflict and security problems in the early 21st century, and avoided falling again into the traps unwittingly set for the country by pro-interventionists and counterinsurgency advocates. Of course, a counter-factual portrayal of the decade is by definition unaware of the bumps in the road that would undoubtedly have been encountered, especially if further attacks had been successfully launched on high value targets within the United States.  Even conceding this unknowability, this alternative path would have been in closer accord with out ‘better angels,’ and corresponded with American continuing claims on the global stage to be the home of moral exceptionalism. If it failed once having been tried, the grounds for a more muscular approach would have been responsibly laid.

 

These retrospective comments are meant to be non-partisan as far as internal American politics are concerned. The Bush approach after 9/11 enjoyed  overwhelming support among the citizenry and in Congress. There were no influential dissenting voices. The mobilization of national unity on the basis of fear and anger, and reinforced by patriotic pride, was intense, effective, and unconditional. My regrets about the policies pursued are mainly preoccupied with the deficiencies of American political culture given the realities and challenges of our world. Unless the political mind of the country becomes quickly disenchanted with military approaches to conflict resolution there is every likelihood of repeating the mistakes of the past decade that will increase dangerous storm clouds that already cast dark shadows menacing the future wellbeing of the country and world.

The American and Global Experience of 9/10, 9/11, 9/12 +10:

15 Sep


            There is unacknowledged freedom associated with any event inscribed in our individual and collective experience of profoundly disabling and disturbing public occurrences. For most older Americans what is most vividly remembered among such occurrences is likely to have been Pearl Harbor, the assassination of JFK, and the 9/11 attacks, each coming as a shock to a shared societal sense of exceeding the limits of what could be expected to happen.  I doubt that other societies would have a comparable hierarchy of recollections about these three rupture of expectations that have proved so significant for an understanding of American political identity over the course of the last fifty years. To make my point clearer, most Japanese would almost certainly single out Hiroshima, and possibly the more recent disaster that followed the 3/11/11 earthquake and tsunami that led to the Fukushima meltdown, and are likely to ignore the events that Americans have found so transformative. Germans, and many Europeans, are likely to be inclined to remember the fall of the Berlin Wall, and possibly the exposure of the Holocaust, while most citizens of former colonies are undoubtedly most moved by the day on which their national independence was finally achieved.

 

         Because American responses to such transformative events are likely to be global in their effect, there is a greater tendency to acknowledge some American preoccupations but not their interpretation. This diversity amid universality is probably truer for 9/11 than any other recent transformative event, not only because of the drama of the attacks and global visualization in real time, but as a result of the violence unleashed in response, what I identify here as the perspective of 9/12. Shifting ever so slightly the angle of perception greatly alters our sense of the significance of the event. Just as 9/12 places emphasis on the American response, the launching of ‘the global war on terror,’ the day before, 9/10 calls our attention to the mood of imperial complacency and global vulnerability to American power that preceded the attacks. This mood was completely oblivious to the legitimate grievances that pervaded the Arab populace associated with the appropriation of the region’s resources, the American support lent to cruel and oppressive tyrants, the lethal sanctions imposed on the people of Iraq for a decade, the deployment of massive numbers of American troops near to Muslim sacred sites, and the enabling over the course of many years of Israel’s oppressive dispossession and occupation of Palestinian lands. From this perspective, the crimes of 9/11 were widely understood as an outgrowth of the wrongs of 9/10 and led unreflectively to the crimes and strategic mistakes of 9/12.  Such a critical understanding does not diminish the criminality of attacks directed at civilians, a strategic pushback that violates the most fundamental constraints of law and morality.

 

           It is probably misleading to think of 9/11 as primarily a global historical event. Undoubtedly its interpretation is mainly a national experience more affected by 9/10 and 9/12 than by the attacks themselves. Such an observation reminds us that despite the hype about globalization that was so prominent during the dawn of the Information Age in the 1990s, it is our shared lives within a particular sovereign state that continues to dominate our political consciousness. Surely most Palestinians see 9/11 through an optic reflecting their ordeal as understood on 9/10, while most Israelis likely saw 9/11 as a long overdue enabling of the 9/12 response that led Americans to share Israel’s preexisting national preoccupation with terrorism.  A deeper encounter with 9/11 ten years later allows us to sense more clearly that most of us are still living in a world of sovereign states despite the borderless wonders of social networking and other globalizing phenomena of this historical period. Even Europe that seemed to go further toward establishing a state-transcending civilizational identity required only the stress of an economic recession to bring back its strong conviction that what mattered most was not being a European but rather being Italian, Spanish, Greek, or French.

 

            Of course, for Americans this is not so obvious. The United States is truly a global state, perhaps the first in history, with the capabilities and commitment to act anywhere on the planet if its vital interests are at stake. From this perspective, 9/11 was experienced by many Americans as a challenge that could be neither addressed territorially nor by retaliatory attacks on the enemy state that inflicted the harm.  The leaders at the time, but with wide national backing, insisted that future security meant limiting freedom at home while waging war abroad. It was this global projection of this American security response that made it natural for 9/12 to be the day that most stays in the mind of foreigners, perhaps not literally, but through their feelings of victimization that resulted from the American respnse by way of war rather than through reliance on the enforcement of law against those who commit crimes against humanity. This latter road not taken, and not even seriously considered, might have been the most radical peacemaking experiment in all of modern history. It was far too radical for either the leadership or the citizenry of not only America, but the constituted politics of all states.

 

            With this outlook of American geopolitical exceptionalism, globalization seems real. When Barrack Obama was elected the American president in November 2008, it was a global event, with people the world over often believing that his election was more important for their future than the outcome of their own national elections. When Lula went to a meeting in Europe of the G-20 while he was still President of Brazil he said that he prayed for Obama more than for himself. The American role in the world economy and security system is truly global, but does that mean that 9/11 was interpreted as a blow struck against the whole world as George W. Bush insisted at the time? Hardly. For parts of the world it meant new and increased violence in their homeland, drones attacking targets selected in the U.S., special forces and an array of mercenaries roaming covertly in search of terrorist suspects, and new wars.

 

 

           We are, of course, free to remember certain things and to forget others. This is normally not done consciously, but it will explain the incredible diversity of how 9/11 was observed on its tenth anniversary, itself a milestone that causes especially Americans to pause and reflect. For most Americans, this became an occasion for a renewal of remorse, lament, resolve, and anger, if not rage.

 

            The most innocent memories of 9/11 are those of loss, a recollectionthat is both personal and collective, associated with any human tragedy caused deliberately that has a negative impact on innocent civilian lives. Less innocent, and more relevant ten years later, is the complexity surrounding the response that is prompted by fear, revenge, counter-crusading passions, and geopolitical ambition. In these respects, 9/11 is both text and pretext, and gave way to the 9/12 furies that unleashed a global war on terror that has caused widespread destruction, questionable improvements in security, and a general weakening of the American claim to exercise global leadership.

The legal flaws of the Palmer Commission flotilla report

13 Sep

The post below is jointly written with Phyllis Bennis, outstanding  journalist, author, and public intellectual who long been concerned with Israel/Palestine conflict, as well as more generally with American foreign policy.  It also appears on the Mondoweiss blog.

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The latest United Nations report on last year’s lethal flotilla incident – in which nine people were killed and many injured by Israeli commandos on board a humanitarian ship bound for Gaza – was released at the beginning of September, and generated much controversy. On the one hand, the report makes clear that Israel’s use of force on board the Mavi Marmara and in the treatment of those detained on the ship was excessive and unreasonable. It acknowledges that forensic evidence indicates at least seven were shot in the head or chest, five of them at close range, and recognizes that Israel still refused to provide any accounting of how the nine people were killed. It calls on Tel Aviv to compensate the families of those killed, eight Turks and one American, and also those who were seriously injured during and after the incident, passengers roughed up while in Israeli custody and whose cameras, cell phones and other belongings were confiscated.

 

The unusually small inquiry panel itself lacked credibility. It was chaired by former New Zealand prime minister and international environment law expert Geoffrey Palmer. Astonishingly, the only other independent member was its vice-chair, the former president of Colombia. Alvaro Uribe’s notorious history as a human rights abuser who called human rights advocates such as Amnesty International “rats,” as well as his legacy of seeking out the closest possible ties to and defense of Israel while in office, make him wildly inappropriate for such an assignment. The panel was rounded out with two members appointed by Israel and Turkey, each of whom appended a partisan dissent to the report.

 

It is therefore particularly significant that the report, despite several notable shortcomings, still confirmed several longstanding criticisms of Israel’s policies, especially the habitual reliance on excessive and unreasonable force when dealing with Palestinian issues.
Overall, however, the report of the Palmer Commission is severely flawed from an international law perspective. The most significant finding of the report is its most dangerous and legally dubious: the conclusion that Israel’s blockade of Gaza, in effect since mid-2007, was somehow, despite being severely harmful to the 1.5 million Palestinians living in Gaza, a legitimate act of self-defense. The report gives considerable attention to the illegal rockets fired into Israel by Palestinian militants mainly associated with Hamas, and notes, appropriately, that “stopping these violent acts was a necessary step for Israel to take in order to protect its people.” But while that justifies protective action, it does not make the case for a valid claim of self-defense under international law.

The report ignores altogether the crucial fact that a unilateral ceasefire had been observed by Hamas ever since the end of the Gaza War in early 2009. An earlier joint Israeli-Palestinian ceasefire had been declared in July 2008, and had led to a virtual halt in rocket attacks until it was broken by Israel in November of that year, in a lethal assault on Gaza that led to a crumbling of the ceasefire and thereafter to Israel’s Operation Cast Lead on December 27, 2008. The Palmer report cannot be legally persuasive on the central issue of self-defense without addressing the relevance of these ceasefires that gave Israel a viable security alternative to blockade and force. The fact that the word “ceasefire” does not even appear in the 105-page document underscores why this report is so unconvincing except to Israel’s partisans.

Instead of trying diplomacy, which had shown itself effective, Israel relied on a naval blockade, which prevented every boat from reaching the Gaza Strip, establishing a military siege, cruelly confining all Gazans, children, women and men (more than 50 percent of Gaza’s population is below the age of 15) living under occupation in what amounts to an open-air prison. Such a blockade is a massive and sustained example of collective punishment, unequivocally prohibited by Article 33 of the Fourth Geneva Convention.

The main goal of the flotilla was to bring desperately needed humanitarian goods, primarily medical equipment, to Gaza’s hospitals and clinics. But a second important goal was to challenge the illegal blockade, end the siege, and protect the rights of the people of Gaza. According to the Universal Declaration of Human Rights, every human being has the right to freedom of movement both within and between all countries yet for more than four years Israel’s siege of Gaza has denied Gazans their right to leave this crowded, impoverished territory, and denied entry to foreign visitors and even to family members. With all land borders closed and the UN and neighboring states unwilling to do more than call repeatedly but futilely on Israel to fulfill its obligation toward an occupied people, the flotilla movement was a peaceful and powerful way to expose the criminality of the siege and blockade of Gaza.

 

We should not lose sight of the essential nature of the incident. Israel launched a naval attack in the middle of the night on a humanitarian flotilla in international waters, whose six ships had been publicly inspected by harbor and police officials in a number of European countries to ensure there were no weapons on board before heading into international waters and had been tracked from the time they left port. It was neither reasonable nor necessary to mount such an attack for the sake of Israeli security.

 

Allowing a naval blockade – which the Palmer Commission acknowledges to be an act of war – to be imposed by Israel against the helpless civilian population of Gaza and then accepted as ‘legal’ by the UN, it is a sad day for both the global rule of law and the well-being of some of the most vulnerable and abused people on the planet.

 

Another UN Failure: The Palmer Report on the Flotilla Incident of 31 May 2010

11 Sep


 

            When the UN Secretary General announced on 2 August 2010 that a Panel of Inquiry had been established to investigate the Israeli attacks of 31 May on the Mavi Marmara and five other ships carrying humanitarian aid to the beleaguered people of Gaza there was widespread hope that international law would be vindicated and the Israelis would finally be held accountable. With the release of the Palmer Report these hopes have been largely dashed as the report failed to address the central international law issues in a credible and satisfactory manner. Turkey, not surprisingly, responded strongly that it was not prepared to live with the central finding of the 105 page report reaching the astonishing conclusions that the Israeli blockade of the Gaza Strip is lawful and could be enforced by Israel against a humanitarian mission even in international waters.

 

            Perhaps this outcome should not be so surprising after all. The Panel as appointed was woefully ill-equipped to render an authoritative result. Geoffrey Palmer, the Chair of the Panel, although a respected public figure, being the former Prime Minister of New Zealand and an environmental law professor, was not particularly knowledgeable about either the international law of the sea or the law of war. And incredibly, the only other independent member of the Panel was Alvaro Uribe, the former President of Colombia, with no professional credentials relevant to the issues under consideration, and notorious both for his horrible human rights record while holding office and forging intimate ties with Israel by way of arms purchases and diplomatic cooperation that was acknowledged by ‘The Light Unto The Nations’ award given by the American Jewish Committee that should have been sufficient by itself to cast doubt on his suitability for this appointment. His presence on the panel compromised the integrity of the process, and made one wonder how could such an appointment can be explained, let alone justified.  Turkey’s agreement to participate in such a panel was itself, it now becomes clear, a serious diplomatic failure. It should have insisted on a panel with more qualified, and less aligned, members.

 

The other two members of the panel were designated by the governments of Israel and Turkey, and predictably appended partisan dissents to those portions of the report that criticized the position taken by their respective governments. Another unacceptable limitation of the report was that the Panel was constrained by its terms of reference that prohibited reliance on any materials other than what was presented in the two national reports submitted by the contending governments. With these considerations in mind, we can only wonder why the Secretary General would have established a formal process so ill-equipped to reach findings that would put the legal controversy to rest and resolve diplomatic tensions, which it has certainly failed to do. Such deficient foresight is itself one of the notable outcomes of this unfortunate UN effort to achieve the peaceful resolution of an international dispute.

 

            Even such an ill-conceived panel did not altogether endorse Israeli behavior on 31 May. The panel found that Israel used excessive force and seemed legally and morally responsible for the deaths of the nine passengers on the Mavi Marmara, instructing Israel to pay compensation and issue a statement of regret. In other words the Palmer Report seems to fault seriously the manner by which the Israeli enforced the blockade, but unfortunately upheld the underlying legality of both the blockade and the right of enforcement, and that is the rub. Such a conclusion contradicted the earlier finding of a more expert panel established by the Human Rights Council, as well as rejected the overwhelming consensus that had been expressed by qualified international law specialists on these core issues. A gross inadequacy of the report was to separate the assessment of the blockade as if exclusively concerned with Israeli security, and ignore its essential role in imposing an intolerable regime of collective punishment on the population of Gaza that has lasted for more than four years.

 

            While the Panel delayed the report several times to give diplomacy a chance to resolve the contested issues, Israel and Turkey could never quite reach closure. There were intriguing reports along the way that unpublicized discussions between representatives of the two governments had agreed upon  a compromise arrangement consisting of Israel’s readiness to offer Turkey a formal apology and to compensate the families of those killed as well as those wounded during the attack, but when the time for announcing such a resolution of this conflict, Israel refused to go along. In particular, the Israeli Prime Minister, Benjamin Netanyahu, seemed unwilling to take the last step, claiming that it would demoralize the citizenry of Israel and signal weakness to Israel’s enemies in the region. More cynical observers believed that the Israeli refusal to resolve the conflict was a reflection of domestic politics, especially Netanyahu’s rivalry with the even more extremist political figure, Foreign Minister, Avigdor Lieberman, who was forever accusing Netanyahu of being a wimpy leader and made no secret of his own ambition to be the next Israeli head of state. Whatever the true mix of reasons, the diplomatic track failed, despite cheerleading from Washington that openly took the position that resolving this conflict had become a high priority for American foreign policy. And so the Palmer Report assumed a greater role than might have been anticipated for what was supposed to be no more than a technical inquiry about issues of law and fact. After the feverish diplomatic efforts failed, the Palmer panel seemed to offer the last chance for the parties to reach a mutually satisfactory resolution based on the application of the international law and resulting recommendations that would delimit what must be done to overcome any violations that had taken place during the attack on the flotilla.

 

            But to be satisfactory, the report had to interpret the legal issues in a reasonable and responsible manner. This meant, above all else, that the underlying blockade imposed more than four years ago on the 1.6 million Palestinians living in Gaza was unlawful, and should be immediately lifted. On this basis, the enforcement by way of the 31 May attacks was unlawful, an offense aggravated by being the gross interference with freedom of navigation on the high seas, and further aggravated by producing nine deaths among the humanitarian workers and peace activists on the Mavi Marmara and by Israeli harassing and abusive behavior toward the rest of the passengers. Such conclusions should have been reached without difficulty by the panel, so obvious were these determinations from the perspective of international law as to leave little room for reasonable doubt. But this was not to be, and the report as written is a step backward from the fundamental effort of international law to limit permissible uses of international force to situations of established defensive necessity, and even then, to ensure that the scale of force employed, was proportional, respectful of civilian innocence, and weighed security claims against harmful humanitarian effects. It is a further step back to the extent that it purports to allow a state to enforce on the high seas a blockade, condemned around the world for its cruelty and damaging impact on civilian mental and physical health, a blockade that has deliberately deprived the people of Gaza of the necessities of life as well as locked them into a crowded and impoverished space that has been mercilessly attacked with modern weaponry from time to time.

 

            Given these stark realities it is little wonder that the Turkish Government reacted with anger and disclosed their resolve to proceed in a manner that expresses not only its sense of law and justice, but also reflects Turkish efforts in recent years to base regional relations on principles of fairness and mutual respect.  The Turkish Foreign Minister, realizing that the results reached by the Palmer Panel were unacceptable, formulated his own Plan B. This consisted of responses not only to the report, but to the failure of Israel to act responsibly and constructively on its own by offering a formal apology and setting up adequate compensation arrangements. Israel had more than a year to meet these minimal Turkish demands, and showed its unwillingness to do so. As Mr. Davutoglu made clear this Turkish response was not intended to produce an encounter with Israel, but to put the relations between the countries back on ‘the right track.’ I believe that this is the correct approach under the circumstances as it takes international law seriously, and rests policy on issues of principle and prudence rather than opts for geopolitical opportunism. As Davutoglu said plainly, “The time has come for Israel to pay a price for its illegal action. The price, first of all, is being deprived of Turkey’s friendship.”

 

            And this withdrawal of friendship is not just symbolic. Turkey has downgraded diplomatic representation, expelling the Israeli ambassador from Ankara and maintaining inter-governmental relations at the measly level of second secretary. Beyond this all forms of military cooperation are suspended, and Turkey indicated that it intends to strengthen its naval presence in the Eastern Mediterranean. As well, Turkey has indicated that it will initiate action within the General Assembly to seek an Advisory Opinion from the International Court of Justice as to the legality of the blockade. What is sadly evident is that Israeli internal politics have become so belligerent and militarist that the political leaders in the country are hamstrung, unable to take a foreign policy initiative that is manifestly in their national interest. For Israel to lose Turkey’s friendship is second only to losing America’s support, and coupled with the more democratic-driven policies of the Arab Spring, this alienation of Ankara is a major setback for Israel’s future in the region, underscored during the last several days by the angry anti-Israeli protests in Cairo.

 

            What is more, the Turkish refusal to swallow the findings of the Palmer Report adopts a political posture that is bound to have a popular resonance throughout the Middle East and beyond. At a time when some of Turkey’s earlier diplomatic initiatives have run into difficulties, most evidently in Syria, this stand on behalf of the victimized population of Gaza represents a rare display by a government of placing values above interests. The people of Gaza are weak, abused, and vulnerable. In contrast, Israel is a military powerhouse, economically prospering, a valuable trading partner for Turkey, and having in the background an ace in the hole– the United States ever ready to pay a pretty penny if it could induce a rapprochement, thereby avoiding the awkwardness of dealing with this breakdown between its two most significant strategic partners in the Middle East. We should also keep in mind that the passengers on these flotilla ships were mainly idealists, seeking nonviolently to overcome a humanitarian ordeal that the UN and the interplay of national governments had been unable and unwilling to address for several years. This initiative by civil society activists deserved the support and solidarity of the world, not discouragement from the UN and a slap on the wrist by being chastened by the Palmer report’s view that their actions were irresponsible and provocative rather than empathetic and courageous.

 

            Israel has managed up to now to avoid paying the price for defying international law. For decades it has been building unlawful settlements in occupied West Bank and East Jerusalem. It has used excessive violence and relied on state terror on numerous occasions in dealing with Palestinian resistance, and has subjected the people of Gaza to sustained and extreme forms of collective punishment. It attacked villages and neighborhood of Beirut mercilessly in 2006, launched its massive campaign from land, sea, and air for three weeks at the end of 2008 against a defenseless Gaza, and then shocked world opinion with its violence against the Mavi Marmara in its nighttime attack in 2010. It should have been made to pay the price long ago for this pattern of defying international law, above all by the United Nations. If Turkey sustains its position it will finally send a message to Tel Aviv that the wellbeing and security of Israel in the future will depend on a change of course in its relation to both the Palestinians, its regional neighbors, and to the international community. The days of flaunting international law and fundamental human rights are no longer policy options for Israel that have no downside. Turkey is dramatically demonstrating that there can be a decided downside to Israeli flagrant lawlessness. 

Preliminary Libyan Scorecard: Acting Beyond the UN Mandate

6 Sep


            In Western circles of influential opinion, the outcome of the NATO intervention in Libya has already been pronounced ‘a victory’ from several points of view: as a military success that achieved its main goals set at acceptable costs, as a moral success that averted a humanitarian catastrophe, and as political success the creation of an opportunity for freedoom and constitutionalism on behalf of a long oppressed people. This is one of those rare results in an international conflict situation that seems to please both conservatives and liberals. Conservatives because it was a show of force that reaffirmed Western primacy based on military power. Liberals because force was used with UN backing in accordance with international law and in furtherance of human rights and liberal values.

 

Qaddafi and his loyalists are apparently a spent force, and the future of Libya now becomes a work in progress without any clear understanding of who will call the shots from now on. Will it be the Libyan victors in the war now battling among themselves for the control of the country? Will it be their NATO minders hiding behind the scenes? Will it be the NATO representatives doing the bidding of the oil companies and the various corporate and financial interests that make no secret of seeking a robust profit-making stake in Libya’s future? Or will it be some combination of these influences, more or less harmoniously collaborating? And most relevant of all, will this process be seen as having the claimed liberating impact on the lives and destinies of the Libyan people? It is far too early to pronounce on such momentous issues, although sitting on the sidelines one can only hope and pray for the best for a country substantially destroyed by external forces. Even before the dust of the original conflict settles it is not too soon to raise some skeptical questions about the unconditional enthusiasm in mainstream Western circles for what has been done and what it portends for the future of UN peacekeeping.

 

            What has transpired since March when the UN Security Council gave its go ahead for the use of force to protect civilians in Libya should never have become an occasion for cheering despite the military and political outcome of the intervention. This unfortunate triumphal spirit was clearly voiced by the normally critically sensitive Roger Cohen. Writing in the New York Times Cohen insists that the Libyan intervention should be viewed as a historically momentous discharge of the global moral responsibility that somehow rests on the shoulders of post-colonial pro-active leaders in the West:  “..the idea that the West must at times be prepared to fight for its values against barbarism is the best hope for a 21sr century less cruel than the 20th .” This rather extraordinary claim cannot be tested by reference to Libya alone, although even narrowly conceived the grounds for such confidence in Western uses of force in the global south seems stunningly ahistorical. But if the net is enlarged, as it must be, to encompass the spectrum of recent interventions under Western auspices that include Vietnam, Iraq, and Afghanistan the self-absorbed gaze of Cohen seems like a dangerously misguided form of advocacy relating to the use of force in international relations. Looking at this broader experience of Western intervention makes one squirm uncomfortably in reaction to the grandiose claim that the willingness of leading Western countries to police the world is humanity’s ‘best hope’ for the future. Cohen is not timid about insisting that the Libya operation up to this point provides a positive model for the future : “The intervention has been done right—with the legality of strong backing, full support of America’s European allies, and quiet arming of the rebels.” A contrast with Iraq is drawn, presumably, in contrast, an intervention ‘done wrong.’

 

            There is a heavy dose of implicit paternalism, condescension, and passé consciousness, not to mention wishful thinking, present if the West is to be identified as the best hope for the future just because it managed to pull off this Libyan intervention, that is, even assuming that the post-Qaddafi experience in the country is not too disillusioning in this one set of circumstances. What about putting the failed interventions into the balance, and then deciding whether it is helpful or not to encourage the West, which means mainly the United States, to take on this protective role for the rest of the world? I seem to remember not that long ago such self-empowering phrases as ‘white man’s burden’ and ‘civilizing mission’ being used by colonial apologists with a straight face. The West has quite a record of barbarism of its own, both within its geographic confines and in its encounters with others.  It seems arbitrary and contentious to situate barbarism geographically, and it certainly seems strange to think that the long exploited and abused non-West generates a new breed of barbarians at the gates.

 

            And let us not be to quick to heap praise on this Libyan model? It is certainly premature to conclude that it has been a success before acquiring a better sense of whether the winners can avoid a new cycle of strife and bloodshed, and stick together in a Libya without the benefit of Qaddafi as the common enemy. Or if they do, can they embark upon a development path that benefits the Libyan people and not primarily the oil companies and foreign construction firms. Any credible assessment of the Libyan intervention must at least wait and see if the new leaders are able to avoid the authoritarian temptation to secure their power and privilege within the inflamed political atmosphere of the country. The majority of the Libyan people undoubtedly have strong expectations that their human rights will now be upheld and that an equitable economic order will soon be established that benefits the population as a whole, and not the tiny elite that sits on the top of the national pyramid. These are expectations that have yet to be satisfied anywhere in the region. The challenge is immense, and perhaps is beyond even the imagination and aspirations of the new leaders, posing a challenge that exceeds their capabilities and will.

 

            Yet such worries are not just about the uncertain future of Libya. Even if, against the odds, Libya turns out to be the success story already proclaimed, there are still many reasons to be concerned about the Libyan intervention serving as a precedent for the future. These concerns relating to international law, to the proper role for the UN, and to the shaping of a just world order have been largely ignored in the public discussion of the Libyan intervention. In effect, once NATO helped the rebels enough to get rid of the Qaddafi regime, it has been treated as irrelevant to complain about aspects of the undertaking and such issues have been completely ignored by the media. In the rest of this blog I will try to explain why the Libyan intervention is far from providing future diplomats with an ideal model. I believe we should learn from the Libyan experience, and reject it as a precedent.

 

            As the World Court made clear in the Nicaragua decision of 1986, modern international law does not allow states to have recourse to force except when acting in self-defense against a substantial prior armed attack across its borders, and then only until the Security Council acts. The United Nations, normally the Security Council, but residually the General Assembly, has the authority to mandate the use of force under Chapter VII of the UN Charter on behalf of peace and security, including on the basis of UN evolving practice, for humanitarian ends under extreme circumstances of the sort that arguably existed in Libya during the latter stages of Qaddafi’s rule. This humanitarian extension of UN authority has been challenged as opening a loophole of indefinite dimensions that can be used to carry out a post-colonial imperialist agenda. Even granting that humanitarian ends should now be understood to have been legally incorporated into prevailing ideas of ‘international peace and security,’ a crucial further question exists as to whether the force used by NATO remained within the confines of what was authorized by the Security Council.

 

            The Security Council debate on authorization indicated some deep concerns on the part of important members at the time, including China, Russia, Brazil, India, and Germany, that formed the background of SC Resolution 1973, which in March 2011 set forth the guidelines for the intervention.This extensive resolution articulated the mission being authorized as that of protecting threatened Libyan civilians against violent atrocities that were allegedly being massively threatened by the Qaddafi government, with special reference at the time to an alleged imminent massacre of civilians trapped in the then besieged city of Benghazi. The debate emphasized the application of the norm of Responsibility to Protect (R2P) endorsed by the Security Council a few years ago that sought to allay fears about interventions by the West in the non-West by refraining from relying on the distrusted language of ‘humanitarian intervention’ and substituting a blander way of describing the undertaking as less of a challenge directed at the territorial supremacy of sovereign states and more in the nature of a protective undertaking reflecting human solidarity. The R2P norm relies on a rationale of protecting vulnerable peoples from rulers that violated basic human rights in a severe and systematic fashion.

 

            But once underway, the NATO operation unilaterally expanded and qualitatively shifted the mission as authorized, and almost immediately acted to help the rebels win the war and to make non-negotiable the dismantling of the Qaddafi regime. NATO made these moves without even attempting to explain that it was somehow still acting primarily to protect Libyan civilians. This was not just another instance of ‘mission creep’ as had occurred previously in UN peacekeeping operations (for instance, the Gulf War of 1991), but rather mission creep on steroids! It would have been possible during the Security Council debate to explain in a forthright manner what obviously must have been the real intentions all along of NATO. It would have been possible and respectful of the integrity of UN discourse to have made the attempt to convince the members of the Security Council that the only way the Libyan people could be protected was to help the rebels win the civil war and to be sure that Qaddafi was taken out of the picture. Presumably such forthrightness was avoided by the pro-interventionist states because it would almost certainly have turned several of the already reluctant abstaining five countries into negative votes, including in all likelihood, those of China and Russia that are permanent members whose votes have a veto effect, which in this case would have prevented the Security Council from reaching a decision. So the pro-interventionists admittedly faced a genuine dilemma: either dissemble as to the ends being pursued and obtain the legitimacy of limited advance authorization from the UN or reveal the real goals of the operation and be blocked by a veto from acting under UN auspices. If so blocked, then the further issue arises as to whether to intervene in the absence of a UN mandate.

 

A similar dilemma faced the intervening governments prior to the 1999 NATO’s Kosovo War. It was resolved by ignoring the legalities altogether, with NATO acting without any UNSC authorization. It was also a controversial precedent, and some blamed the Kosovo reliance on ‘a coalition of the willing’ or on a military alliance as providing a sufficient authorization, for the later claim of de facto authority to carry out the Iraq invasion without gaining prior UN approval. In both Kosovo and Iraq circumventing the UN’s legally prescribed role of deciding when to authorize non-defensive force on behalf of international peace and security was criticized, but the unlawfulness of the action led to no clear repudiation of either intervention after the fact, and rather highlighted the weakness of the UN. In both cases the UN after the fact acted to ratify the results of uses of force that clearly violated the UN Charter’s unconditional prohibition imposed on all uses of non-defensive force by member states. The rogue recourse to force was especially disturbing in Iraq as the attack legally amounted to a war of aggression, a crime against the peace in the language of the Nuremberg Judgment rendered in 1945 against surviving Nazi leaders after World War II.

 

            With regard to Libya, the culprits are not just the states that participated in this runaway operation, but the members of the Security Council  that abstained from supporting Resolution 1973 and the Secretary General of the United Nations have a special duty to make sure that the limits of authorization were being respected throughout the undertaking. It would seem to be a matter of constitutional responsibility for all members of the Security Council to ensure respect for the Charter’s core effort to prevent wars and seek peaceful resolution of conflicts. When exceptions are made to this generalized Charter prohibition on the use or threat of force it should always be strictly formulated, and then continuously monitored and interpreted, and if limits are exceeded, then the supervisory authority and responsibility of the Security Council should kick in as a matter of course, and in a spirit of upholding the autonomy and legitimacy of the United Nations. The Secretary General also has secondary responsibility to take appropriate steps to call the attention of the membership to such blatant departures from an authorizing resolution as an essential aspect of his role as custodian of the integrity of UN procedures and as the UN’s de facto ombudsman in relation to ensuring fidelity to the Charter. This allocation of responsibility seems more important when it is realized that the actions of the Security Council are not subject to judicial review. This controversial doctrine of judicial self-restraint within the UN System was ironically decided by the World Court in the 1992 Lockerbie case involving sanctions imposed on Libya in apparent violation of relevant treaty law. The majority of the judges concluded that whatever the Security Council decided needed to be treated as authoritative even if it went against international law, that the Security Council always had the last word in shaping UN policy even when it was acting unwisely or irresponsibly.

 

            Against this background, the abstaining states were also derelict at the outset by allowing a resolution of the Security Council involving the use of force to go forward considered that it contained such ambiguous and vague language as to raise a red flag as to the scope of the proposed authorization. Although Security Council Resolution 1973 did seem reasonably to anticipate mainly the establishment of a No Fly Zone and ancillary steps to make sure it would be effective, the proposed language of the resolution should have signaled the possibility that action beyond what was being mandated was contemplated by the NATO countries and would likely be undertaken. The notorious phrase ‘all necessary measures’ was present in the resolution, which was justified at the time as providing the enforcers with a desirable margin of flexibility in making sure that the No Fly Zone would render the needed protection to Libyan civilian.  Almost immediately once NATO launched its operations it became obvious that an entirely new and controversial mission was underway than what was acknowledged during the debate that preceded the adoption of 1973. The U.S. Supreme Court has often invalidated Congressional action as ‘void for vagueness,’ and this is something in the UN setting that Security Council members should have been prepared to do on their own in their role as final guardians of constitutional integrity in relation to war making under UN auspices. Given the Charter emphasis on war prevention and peaceful settlement of disputes, it should be standard practice that exceptional mandates to use force would be interpreted strictly to limit the departure from Charter goals and norms, but the UN record even before Libya has been disappointing, with geopolitics giving states a virtually unlimited discretion that international law purports to withhold.

 

            There is a further related issue internal to best practices within the United Nations itself. The Security Council acts in the area of peace and security on behalf of the entire international community and with representational authority for the whole membership of the Organization. The 177 countries not members of the Security Council should have confidence that this body will respect Charter guidelines and that there will be a close correspondence between what was authorized and what was done especially when force is authorized and sovereign rights are encroached upon. This correspondence was not present in the Libyan intervention, and this abuse of authority seems to have barely noticed in any official way, although acknowledged and even lamented in the corridors and delegates lounge of UN Headquarters in New York City.

 

This interpretative issue is not just a playground for international law specialists interested in jousting about technical matters of little real world relevance. Here the life and death of the peoples inhabiting the planet are directly at stake, as well as their political independence, the territorial integrity, and economic autonomy of their country. If the governments will not act to uphold agreed and fundamental limits on state violence, especially directed at vulnerable countries and peoples, then as citizens of the world, ‘we the peoples of the United Nations,’ as proclaimed by the Preamble to the Charter need to raise our voices. We have the residual responsibility to act on behalf of international law and morality when the UN falters or when states act beyond the law. Of course, this imperative does not imply a whitewash for tyrannical rule.

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