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Joint Declaration by International Law Experts on Israel’s Gaza Offensive

28 Jul

(Prefatory Note: Posted here is a Joint Declaration of international law experts from around the world who are listed below as endorsers. I am among the endorsers, and the text was initially drafted by several international law scholars. We welcome additional signatures that can be sent to me in the comments section, with affiliation noted for identification, and names will be periodically added to the text. I view this as an important expression of professional judgment and individual conscience relating to Israeli behavior in Gaza commencing on 8 July that has already taken so many innocent lives and caused such widespread devastation. Please join us and spread the word!)  

The International Community Must End Israel’s Collective Punishment of the Civilian Population in the Gaza Strip

As international and criminal law scholars, human rights defenders, legal experts and individuals who firmly believe in the rule of law and in the necessity for its respect in times of peace and more so in times of war, we feel the intellectual and moral duty to denounce the grave violations, mystification and disrespect of the most basic principles of the laws of armed conflict and of the fundamental human rights of the entire Palestinian population committed during the ongoing Israeli offensive on the Gaza Strip. We also condemn the launch of rockets from the Gaza Strip, as every indiscriminate attack against civilians, regardless of the identity of the perpetrators, is not only illegal under international law but also morally intolerable. However, as also implicitly noted by the UN Human Rights Council in its Resolution of the 23th July 2014, the two parties to the conflict cannot be considered equal, and their actions – once again – appear to be of incomparable magnitude.

Once again it is the unarmed civilian population, the ‘protected persons’ under International humanitarian law (IHL), who is in the eye of the storm. Gaza’s civilian population has been victimized in the name of a falsely construed right to self-defence, in the midst of an escalation of violence provoked in the face of the entire international community. The so-called Operation Protective Edge erupted during an ongoing armed conflict, in the context of a prolonged belligerent occupation that commenced in 1967. In the course of this ongoing conflict thousands of Palestinians have been killed and injured in the Gaza Strip during recurrent and ostensible ‘ceasefire’ periods since 2005, after Israel’s unilateral ‘disengagement’ from the Gaza Strip. The deaths caused by Israel’s provocative actions in the Gaza Strip prior to the latest escalation of hostilities must not be ignored as well.

According to UN sources, over the last two weeks, nearly 800 Palestinians in Gaza have been killed and more than 4,000 injured, of whom the vast majority were civilians. Several independent sources indicate that only 15 per cent of the casualties were combatants. Entire families have been murdered. Hospitals, clinics, as well as a rehabilitation centre for disabled persons have been targeted and severely damaged. During one single day, on Sunday 20th July, more than 100 Palestinian civilians were killed in Shuga’iya, a residential neighbourhood of Gaza City. This was one of the bloodiest and most aggressive operations ever conducted by Israel in the Gaza Strip, a form of urban violence constituting a total disrespect of civilian innocence. Sadly, this was followed only a couple of days later by an equally destructive attack on Khuza’a, East of Khan Younis.

Additionally, the offensive has already caused widespread destruction of buildings and infrastructure: according to the UN Office for the Coordination of Humanitarian Affairs, over 3,300 houses have been targeted resulting in their destruction or severe damage.

As denounced by the UN Fact-Finding Mission (FFM) on the Gaza conflict in the aftermath of Israel’s ‘Operation Cast Lead’ in 2008-2009: “While the Israeli Government has sought to portray its operations as essentially a response to rocket attacks in the exercise of its right to self defence, the Mission considers the plan to have been directed, at least in part, at a different target: The people of Gaza as a whole” (A/HRC/12/48, par. 1680). The same can be said for the current Israeli offensive.

The civilian population in the Gaza Strip is under direct attack and many are forced to leave their homes. What was already a refugee and humanitarian crisis has worsened with a new wave of mass displacement of civilians: the number of IDPs has reached nearly 150,000, many of whom have obtained shelter in overcrowded UNRWA schools, which unfortunately are no safe areas as demonstrated by the repeated attacks on the UNRWA school in Beit Hanoun. Everyone in Gaza is traumatized and living in a state of constant terror. This result is intentional, as Israel is again relying on the ‘Dahiya doctrine’, which deliberately has recourse to disproportionate force to inflict suffering on the civilian population in order to achieve political (to exert pressure on the Hamas Government) rather than military goals.

In so doing, Israel is repeatedly and flagrantly violating the law of armed conflict, which establishes that combatants and military objectives may be targeted, i.e. ‘those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.’ Most of the recent heavy bombings in Gaza lack an acceptable military justification and, instead, appear to be designed to terrorize the civilian population. As the ICRC clarifies, deliberately causing terror is unequivocally illegal under customary international law.

 

In its Advisory Opinion in the Nuclear Weapons case, the ICJ stated that the principle of distinction, which requires belligerent States to distinguish between civilian and combatants, is one of the “cardinal principles” of international humanitarian law and one of the “intransgressible principles of international customary law”.

 

The principle of distinction is codified in Articles 48, 51(2) and 52(2) of the Additional Protocol I of 1977 to the 1949 Geneva Conventions, to which no reservations have been made. According to Additional Protocol I, “attacks” refer to “acts of violence against the adversary, whether in offence or in defence” (Article 49). Under both customary international law and treaty law, the prohibition on directing attacks against the civilian population or civilian objects is absolute. There is no discretion available to invoke military necessity as a justification.

 

Contrary to Israel’s claims, mistakes resulting in civilian casualties cannot be justified: in case of doubt as to the nature of the target, the law clearly establishes that an object which is normally dedicated to civilian purposes (such as schools, houses, places of worship and medical facilities), are presumed as not being used for military purposes. During these past weeks, UN officials and representatives have repeatedly called on Israel to strictly abide by the principle of precaution in carrying out attacks in the Gaza Strip, where risks are greatly aggravated by the very high population density, and maximum restraint must be exercised to avoid civilian casualties. HRW has noted that these rules exist to minimize mistakes “when such mistakes are repeated, it raises the concern of whether the rules are being disregarded.”

 

Moreover, even when targeting clear military objectives, Israel consistently violates the principle of proportionality: this is particularly evident with regard to the hundreds of civilian houses destroyed by the Israeli army during the current military operation in Gaza. With the declared intention to target a single member of Hamas, Israeli forces have bombed and destroyed houses although occupied as residencies by dozens of civilians, including women, children, and entire families.

 

It is inherently illegal under customary international law to intentionally target civilian objects, and the violation of such a fundamental tenet of law can amount to a war crime. Issuing a ‘warning’ – such as Israel’s so-called roof knocking technique, or sending an SMS five minutes before the attack – does not mitigate this: it remains illegal to wilfully attack a civilian home without a demonstration of military necessity as it amounts to a violation of the principle of proportionality. Moreover, not only are these ‘warnings’ generally ineffective, and can even result in further fatalities, they appear to be a pre-fabricated excuse by Israel to portray people who remain in their homes as ‘human shields’.

 

The indiscriminate and disproportionate attacks, the targeting of objectives providing no effective military advantage, and the intentional targeting of civilians and civilian houses have been persistent features of Israel’s long-standing policy of punishing the entire population of the Gaza Strip, which, for over seven years, has been virtually imprisoned by Israeli imposed closure. Such a regime amounts to a form of collective punishment, which violates the unconditional prohibition set forth in Article 33 of the Fourth Geneva Convention and has been internationally condemned for its illegality. However, far from being effectively opposed international actors, Israel’s illegal policy of absolute closure imposed on the Gaza Strip has relentlessly continued, under the complicit gaze of the international community of States.

 

***

As affirmed in 2009 by the UN Fact Finding Mission on the Gaza Conflict: “Justice and respect for the rule of law are the indispensable basis for peace. The prolonged situation has created a justice crisis in the Occupied Palestinian Territory that warrants action” (A/HRC/12/48, para. 1958) Indeed: “long-standing impunity has been a key factor in the perpetuation of violence in the region and in the reoccurrence of violations, as well as in the erosion of confidence among Palestinians and many Israelis concerning prospects for justice and a peaceful solution to the conflict”. (A/HRC/12/48, para. 1964)

Therefore,

 

  • We welcome the Resolution adopted on 23 July 2014 by the UN Human Rights Council, in which an independent, international commission of inquiry was established to investigate all violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory.

 

  • We call upon the United Nations, the Arab League, the European Union, individual States, in particular the United States of America, and the international community in its entirety and with its collective power to take action in the spirit of the utmost urgency to put an end to the escalation of violence against the civilian population of the Gaza Strip, and to activate procedures to hold accountable all those responsible for violations of international law, including political leaders and military commanders. In particular:
  • All regional and international actors should support the immediate conclusion of a durable, comprehensive, and mutually agreed ceasefire agreement, which must secure the rapid facilitation and access of humanitarian aid and the opening of borders to and from Gaza;
  • All High Contracting Parties to the Geneva Conventions must be urgently and unconditionally called upon to comply with their fundamental obligations, binding at all times, and to act under common Article 1, to take all measures necessary for the suppression of grave breaches, as clearly imposed by Article 146 and Article 147 of the Fourth Geneva Convention; these rules are applicable by all interested parties as well;
  • Moreover, we denounce the shameful political pressures exerted by several UN Member States and the UN on President Mahmoud Abbas, to discourage recourse to the International Criminal Court (ICC), and we urge the Governmental leaders of Palestine to invoke the jurisdiction of the ICC, by ratifying the ICC treaty and in the interim by resubmitting the declaration under Article 12(3) of the Rome Statute, in order to investigate and prosecute the serious international crimes committed on the Palestinian territory by all parties to the conflict; and
  • The UN Security Council must finally exercise its responsibilities in relation to peace and justice by referring the situation in Palestine to the Prosecutor of the ICC.

 

 

***

 

Please note that institutional affiliations are for identification purposes only.

 

 

  1. John Dugard, Former UN Special Rapporteur on human rights situation in the Occupied Palestinian Territory
  2. Richard Falk, Former UN Special Rapporteur on human rights situation in the Occupied Palestinian Territory
  3. Alain Pellet, Professor of Public International Law, University Paris Ouest, former Member of the United Nations International Law Commission, France
  4. Georges Abi-Saab, Emeritus Professor of International Law, Graduate Institute of International and Development Studies, Geneva, Former Judge on the ICTY
  5. Vera Gowlland-Debbas, Emeritus Professor of International Law, Graduate Institute of International and Development Studies, Geneva, Switzerland
  6. Chantal Meloni, Adjunct Professor of International Criminal Law, University of Milan, Italy (Rapporteur, Joint Declaration)

 

 

  1. Roy Abbott, Consultant in International Humanitarian Law and International Human Rights Law, Australia
  2. Lama Abu-Odeh, Law Professor, Georgetown University Law Center, USA
  3. Susan M. Akram, Clinical Professor and supervising attorney, International Human rights Program, Boston University School of Law, USA
  4. Taris Ahmad, Solicitor at Jones Day, London, UK
  5. Maria Anagnostaki, PhD candidate, Law School University of Athens, Greece
  6. Antony Anghie, Professor of Law, University of Utah, USA
  7. Nizar Ayoub, Director, Al-Marsad, Arab Human Rights Centre in Golan Heights
  8. Valentina Azarov, Lecturer in Human Rights and International Law, Al Quds Bard College, Palestine
  9. Ammar Bajboj, Lecturer in Law, University of Damascus, Syria
  10. Samia Bano, SOAS School of Law, London, UK
  11. Asli Ü Bali, Professor of Law, UCLA School of Law, USA
  12. Jakub Michał Baranowski, Phd Candidate, Universita’ degli Studi Roma Tre, Italy
  13. Frank Barat, Russell Tribunal on Palestine
  14. Emma Bell, Coordinator of the European Group for the Study of Deviance and Social Control, Université de Savoie, France
  15. Barbara Giovanna Bello, Post-doc Fellow, University of Milan, Italy
  16. Brenna Bhandar, Senior lecturer in Law, SOAS School of Law, London, UK
  17. George Bisharat, Professor of Law, UC Hastings College of Law, USA
  18. Barbara Blok, LLM Candidate, University of Essex, UK
  19. John Braithwaite, Professor of Criminology, Australian National University, Australia
  20. Michelle Burgis-Kasthala, lecturer in international law, University of Edinburgh, UK
  21. Eddie Bruce-Jones, Lecturer in Law, University of London, Birkbeck College, UK
  22. Sandy Camlann, LLM Candidate, Université Paris Ouest Nanterre La Défense, France
  23. Grazia Careccia, Human Rights Advocate, London, UK
  24. Baris Cayli, Impact Fellow, University of Stirling, UK
  25. Antonio Cavaliere, Professor of Criminal Law, University Federico II, Naples, Italy
  26. Kathleen Cavanaugh, Senior Lecturer, Irish Center for Human Rights, National University of Ireland, Galway, Ireland
  27. Elizabeth Chadwick, Reader in International Law, Nottingham, UK
  28. Donna R. Cline, Attorney at Law, USA
  29. Karen Corteen, Senior Lecturer in Criminology, University of Chester, UK
  30. Andrew Dahdal, Lecturer, Faculty of Business and Economics, Macquarie University, Sydney, Australia
  31. Teresa Dagenhardt, Reader in Criminology, Queen’s University Belfast, Northern Ireland
  32. Luigi Daniele, PhD candidate in Law, Italy
  33. Alessandro De Giorgi, Professor of Justice Studies, San Josè State University, USA
  34. Paul de Waart, Professor Emeritus of International Law, VU University, Amsterdam, The Netherlands
  35. Gabriele della Morte, Senior Lecturer in International Law, University Cattolica, Milan, Italy
  36. Max du Plessis, Professor of Law, University of Kwazulu-Natal, and Barrister, South Africa and London, UK
  37. Noura Erakat, Georgetown University, USA
  38. Mohammad Fadel, Associate Professor of Law, University of Toronto Faculty of Law, Canada
  39. Mireille Fanon-Mendés France, Independent Expert UNO, Frantz Fanon Foundation, France
  40. Michelle Farrell, lecturer in law, School of Law and Social Justice, University of Liverpool, UK
  41. Daniel Feierstein, Professor and President International Association of Genocide Scholars (IAGS), Argentina
  42. Eleonor Fernández Muñoz, Costa Rica
  43. Tenny Fernando, Attorney at Law, Sri Lanka
  44. Amelia Festa, LLM Candidate, University of Naples Federico II, Italy
  45. Katherine Franke, Professor of Law, Columbia Law School, USA
  46. Jacques Gaillot, Bishop in partibus of Patenia
  47. Katherine Gallagher, Vice President FIDH, senior attorney, Centre for Constitutional Rights (CCR), New York, USA
  48. Avo Sevag Garabet, LLM, University of Groningen, the Netherlands
  49. Jose Garcia Anon, Professor of Law, Human Rights Institute, University of Valencia, Valencia, Spain
  50. Irene Gasparini, PhD candidate, Universitá Cattolica, Milan, Italy
  51. Stratos Georgoulas, Assistant Professor, University of the Aegean, Greece
  52. Haluk Gerger, Professor, Turkey
  53. Hedda Giersten, Professor, Universitet I Oslo, Norway
  54. Javier Giraldo, Director Banco de Datos CINEP, Colombia
  55. Carmen G. Gonzales, Professor of Law, Seattle University School of Law, USA
  56. Penny Green, Professor of Law and Criminology, Director of the State Crime Initiative, King’s College London, UK
  57. Katy Hayward, Senior Lecturer in Sociology, Queen’s University Belfast, Northern Ireland
  58. Andrew Henley, PhD candidate, Keele University, UK
  59. Christiane Hessel, Paris, France
  60. Paddy Hillyard, Professor Emeritus, Queen’s University Belfast, Northern Ireland
  61. Ata Hindi, Institute of Law, Birzeit University, Palestine
  62. Francois Houtart, Professor, National Institute of Higher Studies, Quito, Ecuador
  63. Deena R. Hurwitz, Professor, General Faculty, Director International Human Rights Law Clinic, University of Virginia School of Law, USA
  64. Perfecto Andrés Ibánes, Magistrado Tribunal Supremo de Espagna, Spain
  65. Franco Ippolito, President of the Permanent People’s Tribunal, Italy
  66. Ruth Jamieson, Honorary Lecturer, School of Law, Queen’s University, Belfast, Northern Ireland
  67. Helen Jarvis, former member Extraordinary Chambers in the Courts of Cambodia (ECCC), member of IAGS, Cambodia
  68. Ioannis Kalpouzos, Lecturer in Law, City Law School, London, UK
  69. Victor Kattan, post-doctoral fellow, Law Faculty, National University of Singapore
  70. Michael Kearney, PhD, Lecturer in Law, University of Sussex, UK
  71. Yousuf Syed Khan, USA
  72. Tarik Kochi, Senior Lecturer in Law, School of Law, Politics and Sociology, University of Sussex, UK
  73. Anna Koppel, MSt Candidate in International Human Rights Law, University of Oxford, UK
  74. Karim Lahidji, President of the International Federation for Human Rights (FIDH) and lawyer
  75. Giulia Lanza, PhD Candidate, Università degli Studi di Verona, Italy
  76. Daniel Machover, solicitor, Hickman & Rose, London, UK
  77. Tayyab Mahmud, Professor of Law, Director of the Centre for Global Justice, Seattle University School of Law, USA
  78. Maria C. LaHood, Senior Staff Attorney, CCR, New York, USA
  79. Louise Mallinder, Reader in Human Rights and International Law, University of Ulster, UK
  80. Triestino Mariniello, Lecturer in International Criminal Law, Edge Hill University, UK
  81. Mazen Masri, Lecturer in Law, The City Law School, City University, London, UK
  82. Siobhan McAlister, School of Sociology, Queen’s University Belfast, Northern Ireland
  83. Liam McCann, Principal Lecturer in Criminology, University of Lincoln, UK
  84. Jude McCulloch, Professor of Criminology, Monash University, Melbourne, Australia
  85. Yvonne McDermott Rees, Lecturer in Law, University of Bangor, UK
  86. Cahal McLaughlin, Professor, School of Creative Arts, Queen’s University Belfast, Northern Ireland
  87. Araks Melkonyan, LLM Candidate, University of Essex, UK
  88. Antonio Menna, PhD Candidate, Second University of Naples, Caserta, Italy
  89. Naomi Mezey, Professor of Law, Georgetown University Law Center, USA
  90. Michele Miravalle, PhD candidate, University of Torino, Italy
  91. Sergio Moccia, Professor of Criminal Law, University Federico II, Naples, Italy
  92. Kerry Moore, Lecturer, Cardiff University
  93. Giuseppe Mosconi, Professor of Sociology, University of Padova, Italy
  94. Usha Natarajan, Assistant Professor, Department of Law & Centre for Migration and Refugee Studies, The American University in Cairo, Egypt
  95. Miren Odriozola Gurrutxaga, PhD Candidate, University of the Basque Country, Donostia – San Sebastián, Spain
  96. Georgios Papanicolaou, Reader in Criminology, Teesside University, UK
  97. Marco Pertile, Senior Lecturer in International Law,
    Faculty of Law, University of Trento, Italy
  98. Andreas Philippopoulos-Mihalopoulos, Professor of Law and Theory, LLM, The Westminster Law and Theory Centre, UK
  99. Antoni Pigrau Solé, Universitat Rovira i Virgili de Tarragona, Spain
  100. Joseph Powderly, Assistant Professor of Public International Law, Leiden University, The Netherlands
  101. Tony Platt, Visiting Professor of Justice Studies, San Jose State University, USA
  102. Scott Poynting, Professor in Criminology, University of Auckland, New Zeeland
  103. Chris Powell, Professor of Criminology, University S.Maine, USA
  104. Bill Quigley, Professor, Loyola University, New Orleans College of Law, USA
  105. John Quigley, Professor of Law, Ohio State University
  106. Zouhair Racheha, PhD Candidate, University Jean Moulin Lyon 3, France
  107. Laura Raymond, International Human Rights Advocacy Program Manager, CCR, New York, USA
  108. Véronique Rocheleau-Brosseau, LLM candidate, Laval University, Canada
  109. David Rodríguez Goyes, Lecturer, Antonio Nariño and Santo Tomás Universities, Colombia
  110. Alessandro Rosanò, PhD Candidate, Università degli Studi di Padova, Italy
  111. Jamil Salem, Director Institute of Law, Birzeit University, Palestine
  112. Mahmood Salimi, LLM Candidate, Moofid University, Iran
  113. Nahed Samour, doctoral fellow, Humboldt University, Faculty of Law, Berlin, Germany
  114. Iain GM Scobbie, Professor of Public International Law, University of Manchester, UK
  115. David Scott, Senior Lecturer in Criminology, Liverpool John Moores University, UK
  116. Phil Scraton, Professor of Criminology, Belfast, Ireland
  117. Rachel Seoighe, PhD Candidate, Legal Consultant, King’s College London, UK
  118. Tanya Serisier, School of Sociology, Queen’s University Belfast, Northern Ireland
  119. Mohammad Shahabuddin, PdD, Visiting researcher, Graduate School of International Social Sciences, Yokohama National University, Japan
  120. Dean Spade, Seattle University School of Law, USA
  121. Per Stadig, lawyer, Sweden
  122. Chantal Thomas, Professor of Law, Cornell University, USA
  123. Kendall Thomas, Nash Professor of Law, Columbia University, USA
  124. Gianni Tognoni, Lelio Basso Foundation, Rome, Italy
  125. Steve Tombs, Professor of Criminology, The Open University, UK
  126. Paul Troop, Barrister, Garden Court Chambers, UK
  127. Valeria Verdolini, Reader in Sociology, University of Milan, Italy
  128. Francesca Vianello, University of Padova, Italy
  129. Aimilia Voulvouli, Assistant Professor of Sociology, Fatih University, Turkey
  130. Namita Wahi, Fellow, Centre for Policy Research, Dharma Marg, Chanakyapuri, New Delhi, India
  131. Sharon Weill, PhD, Science Po, Paris/ CERAH, Geneva, Switzerland
  132. Peter Weiss, Vice President of Centre for Constitutional Rights (CCR), New York, USA
  133. David Whyte, Reader in Sociology, University of Liverpool, UK
  134. Jeanne M. Woods, Henry F. Bonura, Jr. Distinguished Professor of Law, Loyola University College of Law, New Orleans, USA
  135. William Thomas Worster, Lecturer, International Law, The Hague University of Applied Sciences, The Netherlands
  136. Maung Zarni, Judge, PPT on Sri Lanka and Visiting Fellow, London School of Economics and Political Science

 

 

 

 

 

 

 

 

 

 

 

 

 

Cruelties of Ceasefire Diplomacy

27 Jul

[Prefatory Note: the post below is a revised text of an article published in AlJazeera America on July 26, 2014. Devastation and violence has continued in Gaza, with Palestinians deaths now numbering over 1000 (overwhelmingly civilians) and Israeli deaths latest reported at being 43 (almost all military personnel). Such casualty figures and disparities raise questions of state terrorism in a stark manner. Also, it should be appreciated that if Israel were to do what it is required by international law to do there would be no rockets directed at its population centers--lift the blockade, negotiate peace on the basis of the 2002 Arab proposals and Security Council 242. Yet this would require Israel to give up once and for all its expansionist vision embedded in the settlement phenomenon and the version of Zionism embraced by its leaders and reigning political parties. The best that the UN has been able to do is to call for an "immediate and unconditional ceasefire" to allow the delivery of humanitarian aid at an emergency meeting of the UN Security Council; such an unseemly balancing act is not what the UN Charter had in mind by aligning the international community in opposition to states that break the peace and act aggressively in disregard of international law; a victimized people deserves protection, not some sort of display of deforming geopolitical symmetry.]

 

So far, the diplomatic effort to end the violence in Gaza has failed miserably, most recently with Israel’s cabinet rejecting a ceasefire proposal from U.S. Secretary of State John Kerry. This attempt by Washington is representative of the overall failure of American policy toward the Israel-Palestine conflict, only on this occasion the consequences can be measured in the growing pile of dead bodies and the widespread devastation that includes numerous homes, public buildings and even artillery damage to several United Nations schools sheltering Palestinian civilians.

 

The U.S. approach fails because it exhibits extreme partisanship in a setting where trust, credibility and reciprocity are crucial if the proclaimed aim of ending the violence is the true objective of this exhibition of statecraft. Kerry is undoubtedly dedicated to achieving a cease-fire, just as he demonstrated for most of the past year a sincerity of commitment in pushing so hard for a negotiated peace agreement between Israel and the Palestinian Authority. Yet throughout the failed peace process the United States exhibited all along this discrediting extreme partisanship, never more blatantly than when it designated Martin Indyk, a former staff member of the America Israel Public Affairs Committee (AIPAC) and former ambassador to Israel, to serve as the U.S. special envoy throughout the peace talks.

 

The U.S. approach up to this point to achieving a ceasefire in Gaza has been undertaken in a manner that is either woefully ignorant of the real constraints or callously cynical about their relevance. This is especially clear from the initial attempt to bring about a cease-fire by consulting only one side, Israel — the party bearing the major responsibility for causing massive casualties and damage — and leaving Hamas out in the cold. Even if this is a unavoidable consequence of Hamas being treated as “a terrorist entity,” it still makes no sense in the midst of such carnage to handle diplomacy in such a reckless manner when lives were daily at stake. When Israel itself has wanted to deal with Hamas in the past, it had no trouble doing so — for instance, when it arranged the prisoner exchange that led to the release of the single captured Israeli soldier Gilad Schalit back in 2011.

 

The basic facts seem so calculated to end in diplomatic failure that it is difficult to explain how they could have happened: The U.S. relied on Egypt as the broker of a proposal it vetted, supposedly with the approved text delivered personally by Tony Blair to President Abdel Fattah el-Sisi in Cairo, secreted endorsed by the Netanyahu government, and then publicly announced on July 15 via the media as a ceasefire proposal accepted by Israel, without Hamas having been consulted, or even previously informed. It’s a diplomatic analogue to the theater of the absurd. Last July, then-General Sisi was the Egyptian mastermind of a coup that brutally cracked down on the Muslim Brotherhood and criminalized the entire organization. The Sisi government has made no secret of its unrelenting hostility to Hamas, which it views as an offshoot of the Muslim Brotherhood and alleged responsibility for insurgent violence in the Sinai. Egypt destroyed the extensive tunnel network connecting Gaza with the outside world created to circumvent the punitive Israeli blockade that has been maintained since 2007. Was there ever any reason for Hamas to accept such a humiliating ceasefire arrangement? As some respected Israeli commentators have suggested, most prominently Amira Hass, the “normalization” of the occupation is what the Israeli military operation Protective Edge is all about. What Hass suggests is that Israel is seeking a compliant Palestinian response to an occupation that has for all intents and purposes become permanent, and seems to believe that such periodic shows of force will finally break once and for all the will to resist, symbolized by Hamas and its rockets, and now its tunnels. In this respect, the recent move to establish a unity government reconciling the Palestinian Authority with Hamas was a setback for the normalization policy, especially suggesting that even the PA could no longer be taken for granted as an acceptably compliant ‘partner,’ not for peace, but for occupation.

 

Whatever ambiguity might surround the Kerry diplomacy, the fact that the cease-fire’s terms were communicated to Hamas via the media, made the proposal a “take it or leave it” clearly designed to show the world that Hamas would never be treated as a political actor with grievances of its own. Such a way of proceeding also ignored the reasonable conditions Hamas had posited as the basis of a cease-fire it could accept. These conditions included an unwavering insistence on ending the unlawful seven-year siege of Gaza, releasing prisoners arrested in the anti-Hamas campaign in the West Bank prior to launching the military operation on July 8, and stopping interference with the unity government that brought Hamas and the Palestinian Authority together on June 3. Kerry, by contrast, was urging both sides to restore the cease-fire text that had been accepted in November 2012 after the previous major Israeli military attack upon Gaza, but relevantly, had never been fully implemented producing continuous tensions.

 

Hamas’ chief leader, Khaled Meshaal, has been called “defiant” by Kerry because he would not go along with this tilted diplomacy. “Everyone wanted us to accept a ceasefire and then negotiate for our rights,” Meshaal said. This was tried by Hamas in 2012 and didn’t work. As soon as the violence ceased, Israel refused to follow through on the cease-fire agreement that had promised negotiations seeking an end of the blockade and an immediate expansion of Gazan fishing rights.

 

In the aftermath of Protective Edge is it not reasonable, even mandatory, for Hamas to demand a firm commitment to end the siege of Gaza, which has been flagrantly unlawful since it was first imposed in mid-2007? Israel as the occupying power has an obligation under the Geneva Conventions to protect the civilian population of an occupied people. Israel claims that its “disengagement” in 2005, involving the withdrawal of security forces and the dismantling of settlements, ended such obligations. Such a position is legally (and morally) unacceptable, a view almost universally shared in the international community, since the persistence of effective Israeli control of entry and exit, as well as air and sea, and violent incursions amounts to a shift in the form of occupation — not its end. Israel is certainly justified in complaining about the rockets, but the maintenance of an oppressive regime of collective punishment on the civilians of Gaza is an ongoing crime. And it should be appreciated that more often than not, Israel provokes the rockets by recourse to aggressive policies of one sort or another or that most primitive rockets are fired by breakaway militia groups that Hamas struggles to control. A full and unbiased account of the interaction of violence across the Gaza border would not find that Israel was innocent and only Hamas was at fault. The story is far more complicated, and not an occasion for judging which side is entitled to be seen as acting in self-defense.

 

In “Turkey Can Teach Israel How to End Terror,” an insightful July 23 article in The New York Times, the influential Turkish journalist Mustafa Akyol drew from the experience of his country in ending decades of violent struggle between the insurgent Kurdistan Workers’ Party (PKK) and the Turkish state. Akyol “congratulated” Turkish Prime Minister Recep Tayyip Erdogan (while taking critical note of his “growing authoritarianism”) for ending the violence in Turkey two years ago by agreeing with the imprisoned PKK leader, Abdullah Ocalan, to initiate conflict-resolving negotiations in good faith and abandon the “terrorist” label. Some years ago I heard former British Prime Minister John Major say that he made progress toward peace in Northern Ireland only when he stopped treating the Irish Republican Army as a terrorist organization and began dealing with it as a political actor with genuine grievances. If a secure peace were ever to become Israel’s true objective, this is a lesson to be learned and imitated.

 

Just as with the peace process itself, the time has surely come for a credible ceasefire to take account of the views and interests of both sides, and bring this sustained surge of barbaric violence to an end. International law and balanced diplomacy are available to do this if the political will were to emerge on the Israeli side, which seems all but impossible without the combination of continuing Palestinian resistance and mounting pressure from outside by way of the BDS campaign and the tactics of a militant, nonviolent global solidarity movement.

 

 

Israel’s Politics of Deflection

30 Sep

 

Israel’s Politics of Deflection: Theory and Practice

 

General Observations

 

During my period as the UN Special Rapporteur for Human Rights in Palestine on behalf of the Human Rights Council I have been struck by the persistent efforts of Israel and its strong civil society adjuncts to divert attention from the substance of Palestinian grievances or the consideration of the respective rights of Israel and Palestine under international law. I have also observed that many, but by not means all of those who represent the Palestinians seem strangely reluctant to focus on substance or to take full advantage of opportunities to use UN mechanisms to challenge Israel on the terrain of international law and morality.

 

            This Palestinian reluctance is more baffling than are the Israeli diversionary tactics. It seems clear that international law supports Palestinian claims on the major issues in contention: borders, refugees, Jerusalem, settlements, resources (water, land), statehood, and human rights. Then why not insist on resolving the conflict by reference to international law with such modifications as seem mutually beneficial? Of course, those representing the Palestinians in international venues are aware of these opportunities, and are acting on the basis of considerations that in their view deserve priority.  It is disturbing that this passivity on the Palestinian side persists year after year, decade after decade. There are partial exceptions: support for recourse to the International Court of Justice to contest the construction of the separation wall, encouragement of the establishment of the Goldstone Fact-finding Inquiry investigating Israeli crimes after the 2008-09 attacks on Gaza, and the Human Rights Council’ Independent International Fact-finding Mission on  Isreali settlement expansion (report 22 March 2012). But even here, Palestinian officialdom will not push hard to have these symbolic victories implemented in ways that alter the behavioral realities on the ground, and maybe even if they did do their best, nothing would change.

 

             On the Israeli side, diversion and the muting of legal and legitimacy claims, is fully understandable as a way to blunt challenges from adversary sources: seeking to have the normative weakness of the Israeli side offset by an insistence that if there is to be a solution it must be based on the facts on the ground, whether these are lawful or not, and upon comparative diplomatic leverage and negotiating skill in a framework that is structurally biased in favor of Israel. The recently exhumed direct negotiations between the Palestinian Authority and the Government of Israel exemplify this approach: proceeding despite the absence of preconditions as to compliance with international law even during the negotiations, reliance on the United States as the convening intermediary, and the appointment by President Obama of an AIPAC anointed Special Envoy (Martin Indyk), the latter underscoring the absurd one-sidedness of the diplomatic framework. It would seem that the Palestinians are too weak and infirm to cry ‘foul,’ but merely play along as if good natured, obedient, and frightened schoolchildren while the bullies rule the schoolyard.

 

           Such a pattern is discouraging for many reasons: it weights the diplomatic process hopelessly in favor of the materially stronger side that has taken full advantage of the failure to resolve the conflict by grabbing more and more land and resources; it makes it virtually impossible to imagine a just and sustainable peace emerging out of such a process at this stage; it plays a cruel game in which the weaker side is almost certain to be made to seem unreasonable because it will not accept what the stronger side is prepared to offer, which is insultingly little; and it allows the stronger side to use the process and time interval of the negotiations as an opportunity to consolidate its unlawful claims,  benefitting from the diversion of attention.

 

          There are two interwoven concerns present: the pernicious impacts of the politics of deflection as an aspect of conflictual behavior in many settings, especially where there are gross disparities in hard power and material position; the specific politics of deflection as a set of strategies devised and deployed with great effectiveness by Israel in its effort to attain goals with respect to historic Palestine that far exceed what the UN and the international community had conferred. The section that follows deals with the politics of deflection only in the Israel/Palestine context

 

 

The Specific Dynamics of the Politics of Deflection

 

            –anti-Semitism: undoubtedly the most disturbing behavior by Israel and its supporters is to deflect attention from substance in the conflict and the abuses of the occupation is to dismiss criticism of Israel as anti-Semitism or to defame the critic as an anti-Semite. This is pernicious for two reasons: first, because it exerts a huge influence because anti-Semitism has been so totally discredited, even criminalized, in the aftermath of World War II that featured the exposure and repudiation of the Holocaust; secondly, because by extending the reach of anti-Semitism to address hostile commentary on Israel a shift of attention occurs—away from the core evil of ethnic and racial hatred to encompass the quite reasonable highly critical appraisal of Israeli behavior toward the Palestinian people by reference to overarching norms of law and morality.

 

              This misuse of language to attack Jewish critics of Israel by  irresponsible characterizations of critics as  ‘self-hating Jews.’ Such persons might exist, but to infer their existence because of their criticisms of Israel or opposition to the Zionist Project functions as a means to move inhibit open discussion and debate, and to avoid substantive issues. It tends to be effective as a tactic as few people are prepared to take the time and trouble to investigate the fairness and accuracy of such allegations, and so once the shadow is cast, many stay clear of the conflict or come to believe that  criticism of Israel is of less interest than are the pros and cons of the personal accusations.  Strong Zionist credentials will not insulate a Jew from such allegations as Richard Goldstone discovered when he was vilified by the top  tier of Israeli leadership after chairing a fact-finding inquiry that confirmed allegations of Israeli war crimes in the course of Operation Cast Lead. Even the much publicized subsequent Goldstone ‘retraction’ did little to rehabilitate the reputation of the man in Israeli eyes, although his change of heart as to the main allegation of his own report (a change rejected by the other three members of the inquiry group), was successfully used by Israeli apologists to discredit and bury the report, again illustrating a preference for deflection as opposed to substance.

 

            Even such global moral authority figures as Archbishop Desmond Tutu and Jimmy Carter have been called anti-Semites because they dared to raise their voices about the wrongs that Israel has inflicted on the Palestinian people, specifically identifying the discriminatory legal structures of the occupation as an incipient form of apartheid.

 

            In the unpleasant course of being myself a frequent target of such vilifying techniques, I have discovered that it is difficult to make reasoned responses that do not have the effect of accentuating my plight. To fail to respond leaves an impression among some bystanders that there must be something to the accusations or else there would be forthcoming a reasoned and well-evidenced response. To answer such charges is to encourage continuing attention to the allegations, provides the accusing side with another occasion to repeat the charges by again cherry picking the evidence. NGOs such as UN Watch and UN Monitor specialize in managing such hatchet jobs.

 

            What is more disturbing than the attacks themselves than their resonance among those holding responsible positions in government and international institutions, as well as widely respected liberal organizations. In my case, the UN Secretary General, the U.S. ambassadors at the UN in New York and Geneva, the British Prime Minister, and the Canadian Foreign Minister. Not one of these individuals bothered to check with me as to my response to the defamatory allegations or apparently took the trouble to check on whether there was a credible basis for such damaging personal attacks. Even the liberal mainstream human rights powerhouse, Human Rights Watch, buckled under when pressured by UN Watch, invoking a long neglected technical rule to obtain my immediate removal from a committee, and then lacked the decency to explain that my removal was not ‘a dismissal’ when

UN Watch claimed ‘victory,’ and proceeded to tell the UN and other bodies that if Human Rights Watch had expelled me, surely I should be expelled elsewhere. I learned, somewhat bitterly, that HRW has feet of clay when it came to standing on principle in relation to someone like myself who has

been the victim of repeated calumnies because of an effort to report honestly and accurately on Israeli violations of Palestinian rights.

 

            –Auspices/Messenger: A favorite tactic of those practicing the politics of deflection is to contend that the auspices are biased, and thus whatever substantive criticisms might issue from such an organization should be disregarded. Israel and the United States frequently use this tactic to deflect criticism of Israel that is made in the UN System, especially if it emanates from the Human Rights Council in Geneva or the General Assembly. The argument is reinforced by the similarly diversionary claim that Israeli violations are given a disproportionately large share of attention compared to worse abuses in other countries, especially those in sub-Saharan Africa. Also, there is the complementary complaint that some of the members of the Human Rights Council themselves have appalling human rights records that disqualify them from passing judgment, thereby exhibiting the hypocrisy of criticisms directed at Israel.

 

            It is tiresome to respond to such lines of attack, but important to do so.

First of all, in my experience, the UN has always made fact-based criticisms of Israeli policies and practices, appointed individuals with strong professional credentials and personal integrity, and painstakingly reviewed written material prior to publication to avoid inflammatory or inaccurate criticisms. Beyond this, Israel is almost always given an opportunity to review material critical of its behavior before it is released, and almost never avails itself of this chance to object substantively. In my experience, the UN, including the Human Rights Council, leans over backwards to be fair to Israel, and to take account of Israeli arguments even when Israel declines to make a case on its own behalf.

 

            Further, the heightened attention given to Palestinian grievances is a justified result of the background of the conflict. It needs to be remembered that it was the UN that took over historic Palestine from the United Kingdom after World War II, decreeing a partition solution in GA Resolution 181 without ever consulting the indigenous population, much less obtaining their consent. The UN approach in 1947 failed to solve the problem, consigning Palestinians to decades of misery due to the deprivation of their fundamental rights as of 1948, the year of the nakba, a national experience of catastrophic dispossession. Through the years the UN has provided guidelines for behavior and a peaceful solution of the conflict, most notably Security Council Resolutions 242 and 338, which have not been implemented. The UN has for more than a decade participated in The Quartet tasked with implementing ‘the roadmap’ designed to achieve peace, but not followed, allowing Israel to encroach more and more on the remnant of Palestinian rights via settlement expansions, wall construction, residence manipulations, apartheid administrative structures, land confiscations, house demolitions. The UN has been consistently frustrated in relation to Palestine in a manner that is unique in UN experience, making the issue a litmus test of UN credibility to promote global justice and overcome the suffering of a dispossessed and occupied people.

 

            Usually, the attack on the sponsorship of a critical initiative is reinforced by scathing screed directed at anyone prominently associated with the undertaking. The attacks on the legendary Edward Said, the one Palestinian voice in America that could not be ignored, were rather vicious, often characterizing this most humanist among public intellectuals, as the ‘Professor of Terror.’ The most dogmatic defenders of Israel never tired of trying to make this label stick by showing a misleadingly presented picture of Said harmlessly throwing a stone at an abandoned guard house during a visit to southern Lebanon not long before his death as if a heinous act of violence against a vulnerable Israeli soldier. This effort to find something, however dubious, that could be used to discredit an influential critic disregard the ethics of fairness and decency. In my case, an accidentally posted cartoon, with

an anti-Semitic angle has been endlessly relied upon by my most mean-spirited detractors, although any fair reading of my past and present scholarship, together with the blog psot in which it appeared in which Israel is not even mentioned, would conclude that its sole purpose of highlighting the cartoon was to defame, and by so doing, deflect.

 

            In like manner, the use of the label ‘terrorist’ has been successfully manipulated by Israel in relation to Hamas to avoid dealing with its presence as the elected governing authority in Gaza or in responding to its offers of long-term coexistence provided the blockade of Gaza is ended and Israeli forces withdraw to 1967 borders. The Hamas demands are really nothing more than a call for the implementation of international law and UNSC resolutions, and thus highly reasonable from the perspective of fairness to both sides, but Israel is not interested in such fairness, and hence avoids responding to the substance of the Hamas proposals by insisting that it is unwilling to respond to a terrorist organization. Such a stubborn position is maintained, and supported by the United States and EU, despite Hamas’ successful participation in an electoral process, its virtual abandonment of violent resistance, and its declared readiness for diplomatic accommodations with Israel and the United States.

 

            If the messenger delivering the unwelcome message lacks prominence or the campaign of vilification does not altogether succeed, then at governmental levels, Israel, and the United States as well, will do its best to show contempt for criticism for the whole process by boycotting proceedings at which the material  is presented. This has been my

experience at recent meetings of the Human Rights Council and the Third Committee of the General Assembly where my reports are presented on a semi-annual basis and Israel and the United States make it a point to be absent. There is an allocation of the work of deflection: at the governmental end substance is often evaded by pretending not to notice, while pro-Israeli NGOs pound away, shamelessly repeating over and over the same quarter truths, which often are not even related to their main contention of biased reporting. In my case, UN Watch harps on my supposed membership in the ranks of 9/11 conspiracy theorists, an allegation that I have constantly explained to be contrary to my frequently articulated views on the 9/11 attacks. It makes no difference what I say or what are the facts of my position

once the defamatory attack has been launched.

 

            Diplomatic Deflection: The entire Oslo peace process, with its periodically revived negotiations, has served as an essential instrument of deflection for the past twenty years. It diverts the media from any consideration of Israel’s expansionist practices during the period that the parties are futilely negotiating, and succeeds in making critics and criticism of Israel’s occupation policies seem obstructive of the overarching goal of ending the conflict and bringing peace to the two peoples.

 

            Geopolitical Deflection: Although not solely motivated by the goals of deflection, the bellicose focus by Israel on Iran’s nuclear program, has seemed so dangerous for the region and the world that it has made Palestinian grievances appear trivial by comparison. It has also led outside political actors to believe that it would be provocative to antagonize Israeli leadership in relation to Palestine at a time when there were such strong worries that Israel might attack Iran or push the United States in such a direction. To a lesser extent the preoccupations with the effects of the Arab upheavals, especially in Syria and Egypt, have had the incidental benefit for Israel of diminishing still further regional and global pressures relating to Palestinian grievances and rights. This distraction, a kind of spontaneous deflection, has given Israel more time to consolidate their annexationist plans in the West Bank and Jerusalem, which makes the still lingering peace image of a two-state solution a convenient mirage, no more, no less.

 

 

A Concluding Comment: Overall, the politics of deflection is a repertoire of techniques used to shift the gaze away from the merits of a dispute. Israel has relied on these techniques with devastating effects for the Palestinians. The purpose of my analysis is to encourage Palestinians in all settings to do their best to keep the focus on substance and respective rights. Perhaps, it is time for all of us to learn from the brave Palestinian hunger strikers whose nonviolent defiance of Israeli detention abuse operated with laser like intensity to call attention to prison and administrative injustice. Unfortunately, the media of the world was silent, including those self-righteous liberal pundits who had for years urged the Palestinians to confront Israel nonviolently, and then sit back, and find satisfaction in the response from Tel Aviv. Waiting for Godot is not a matter of patience, but of ignorance!

 

 

  

Resolving the Syrian Chemical Weapons Crisis: Sunlight and Shadows

15 Sep

 

            The Putin Moment: Not only did Vladimir Putin exhibit a new constructive role for Russia in 21st statecraft, spare Syria and the Middle East from another cycleof escalating violence, but he articulated this Kremlin initiative in the form of a direct appeal to the American people. There were reasons to be particularly surprised by this display of Russian diplomacy: not since Nikita Khrushchev helped save the world from experiencing the catastrophe of nuclear war in the Cuban missile crisis of 1962 by backing down and agreeing to a face-saving formula for both superpowers, had Moscow distinguished itself in any positive way with respect to the conduct of international relations; for Putin to be so forthcoming, without being belligerent, was particularly impressive in view of Obama’s rather ill-considered cancellation only a few weeks ago of a bilateral meeting with the Russian leader because of Washington’s supposed anger at the refusal of the Russian government to turn the NSA whistleblower, Edward Snowden, over to the United States for criminal prosecution under American espionage laws; and finally, considering that Putin has much blood on his hands given past policies pursued in relation to Chechnya and in the autocratic treatment of domestic political opposition, it was hard to expect anything benevolent during his watch. And so Putin is emerging as a virtual ‘geopolitical black swan,’ making unanticipated moves of such a major character as to have the potential to transform the character of conflict management and resolution in the 21st century.  It should be understood that Putin could have stayed on the sidelines, and benefitted from seeing Obama sink deeper and deeper into the Syrian quagmire, and instead he stepped in with a momentous move that seems to have served the regional and global interest.

Putin has explained in a coherent manner in his opinion piece that was published in the NY Times on September 11th (without invoking the symbolism of  the twelfth anniversary of the 9/11 attacks) that his approach to Russian foreign policy relies on two instruments: soft power and economic diplomacy. He acknowledged American leadership, but only if exercised within a framework of respect for international law and the UN Charter. And he appropriately took issue with Obama’s sentiments expressed a night earlier to the effect that America in its leadership role had a unique entitlement to use force to overcome injustice in situations other than self-defense and even without authorization by the UN Security Council. It was Putin, perhaps disingenuously, who claimed (quite correctly) that such a prerogative was “extremely dangerous.” He rejected Obama’s pretension that a unilateral discretion with respect to the use of force could be inferred from American exceptionalism. Whether disingenuous or not, the requirement of a Security Council authorization for non-defensive uses of force, while sometimes preventing a peacekeeping response by the UN to certain tragic situations of civil strife and humanitarian crisis overall contributed to finding diplomatically agreed upon solutions for conflict and enabled the UN (unlike the League of Nations) to persist despite severe tensions among its dominant members. Let hope that this Putin vituoso exhibition of creative diplomacy prompts his counterpart in the White House to explore more diligently soft power opportunities that will better protect American national interests, while simultaneously serving the global interest in war prevention and the rejection of militarism, and might also have the added benefit of reversing the steady decline of American credibility as a benevolent global leader ever since the end of the Cold War.

Constitutional Balance: Perhaps what might be of even greater importance than averting an ill-considered punitive attack on Syria, is the grounding of recourse to war on the major republican premise of Congressional authorization. There is little doubt that here the efficient cause and anti-hero was David Cameron, who turned to Parliament to support his wish to join with Obama in the attack coalition despite the anti-war mood in British public opinion. Cameron was politically spared by the vote of the House of Commons to withhold authorization. It is hard to believe that Obama’s decision to seek authorization from the U.S. Congress was not a belated realization that if Britain deferred to its Parliament as an expression of constitutional democracy, it would be unseemly for the United States to go to war without the formal backing of Congress. Of course, the Putin initiative saved Obama from the near certain embarrassment of being turned down by Congress, which would mean that either he would follow in Cameron’s and face savage criticism from his hawkish boosters or insist upon his authority as Commander in Chief to act on his own, a prerogative that seems constitutional dubious to support a bill of impeachment. Beyond this, the War Powers Act that would seem to require some emergency justification for the presidential bypassing of Congress in the context of a proposed military action. Hopefully, we are witnessing, without an accompanying acknowledgement, the downfall of the ‘imperial presidency’ that got its start during the Vietnam War. The governmental pendulum in the United States may have started to swing back toward the separation of powers and checks and balances, and thus be more in keeping with the original republican hopes of limited executive authority, especially in relation to war making. This renewal of republican constitutionalism, combined with growing populist skepticism about military adventures abroad, might make this Syrian crisis of decision a welcome tipping point, reversing the unhealthy subordination of Congress in war/peace situations during the last half century and anti-democratic disregard of the views of the citizenry.

But it is also possible that the imprudence of the proposed punitive strike against Syria will turn out to be a one-off experience, and that when and if Iran clearly crosses the weapons threshold in its nuclear program, the presidency will retrieve its lost claims to be the unilateral guardian of national, regional, and global interests without feeling that it must await authorization from the Congress and the UN. Note that Congressional approval, even if in concert with the President, cannot sanitize a use of force that is illegal under international law. It is the state as a whole that is bound by the constraints of international law, and not just the head of state. There are two distinct issues present: the domestic constitutional requirement of collective authorization for recourse to war by the United States; and the complementary international requirement of acting in compliance with international law and the UN Charter (which is itself acknowledged in supremacy clause of the Constitution with respect to validly ratified treaties).

Coercive Diplomacy: Obama/Kerry contend that Syria’s chemical weapons would never have been put under international controls and in an atmosphere of unprecedented international cooperation, but for the credible threats mounted by the U.S. Government. In this regard, the poker style bluff can be said to have worked without any sure proof that the threat would have been carried out in the face of a refusal by Congress to authorize and the public failure to show support for an attack. As matters now seem to be unfolding, assuming that the plans for abolishing the chemical weapons of Syria proceed as agreed, threat diplomacy will be applauded by the Obama administration without any widespread sensitivity to the fact that the international law as embodied in Article 2(4) of the UN Charter prohibits ‘threats’ as well as ‘uses’ of force, although such a prohibition has not been taken seriously as part of the ‘living law’ despite its status as a prime instance of ‘positive law.’ The categorical language of Article 2(4) is unmistakeable: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity and political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

Syria and its People: In the background of the diplomatic controversy about what to do in response to the large-scale lethal use of sarin gas against the people of Syria on August 21st, was the awareness that such an attack did not even pretend to end the violence in Syria or to produce regime change in Damascus or to change the balance of force in the civil war. From this perspective, it seemed mainly a punitive strike that upheld Obama’s red line credibility, although there was an additional argument set forth that a military strike would have a deterrent impact on any contemplated future recourse to chemical weaponry by the Assad regime and other political actors, assuming that the allegations that the Syrian government order the attack are confirmed and reinforced by the reports of the UN inspection team and other respected sources.

What tends to be given only a secondary glance is the effects of an attack on the Syrian people who have been subject to a harrowing ordeal these past two years that has resulted in over 100,000 deaths, countless wounded, and an estimated 7,000,000, almost one-third of the population, as either internally displaced or forced into overcrowded and under-resourced refugee camps in neighboring countries. Beyond this, the always vulnerable Palestinians have endured Syrian attacks on their refugee camps forcing them to flee once more, to become, quite incredibly, refugees from their refugee arrangements, a largely untold Palestinian tragedy hidden within the larger Syrian tragedy. There is almost no political will on the outside to do anything to stop either the proxy war being waged by states external to Syria or the internal struggle being waged by a fragmented opposition against a discredited government that has been incredibly cruel to its own citizens and strangely indifferent to the great cultural and religious heritage of their own country. There are even grotesque murmurings in the background of strategic chatter in Western circles, suggesting that the best outcome is not an end to the violence, but its indefinite continuation with an effort to calibrate future arms supplies and humanitarian aid with the principal aim of making sure that neither side can achieve victory. If this is not an exposure of the raw immorality of strategic discourse at its immoral nadir, I am not sure what would be.

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Questioning Obamacare for Syria

5 Sep

When it comes to war, Obama is okay just this once, especially for Republicans

 

            There is something particularly distressing about the ongoing debate on authorizing an internationally illegal and immoral military attack on Syria: a show of political support on the right. Such a ‘coming together’ of some of the center and much of the right in the American Congress has been sadly absent during Obama presidency until now, whether the issue was health, taxes, social services, keeping the government running, and immigration. And this support emerges on the rare occasion when a majority of American citizens, not known for their cosmopolitan sentiments or affection for the UN Charter, oppose attacking Syria, as was the British Parliament, and as is public opinion throughout Europe. In such a setting, it is not only international law and the UN are being repudiated in a war/peace situation, but the whole fabric of democratic accountability to law and the judgment of the people.

 

            At least we can conclude that the reactionary tendency in American political life over the course of the last decade or so is consistent in its adherence to irresponsible means in the pursuit irresponsible ends. It appears that the real selling point for the looming attack on Syria is not for the sake of the Syrians, but to warn the leadership of Iran that it is next on the White House hit list unless it soon surrenders to Washington’s demands, echoing those more stridently made by Israel. Is this what global leadership of the United States has come to mean? To let adversaries be reminded that the global bully means business.

 

            And what about damaging the Obama legacy? There is a loss/loss feeling about the eventual attack, if indeed it should happen. If the attack on Syria is truly limited and does not produce many civilian casualties, his Republican champions, including such hawkish stalwarts as Senators McCain and Graham, will quickly change sides, arguing that doing such a slap on the wrist is worse than doing nothing. The broadening of the Congressional resolution suggests that the hawk support depends on launching a major attack that has much wider ambitions than what Obama seemed to favor in his call to Congress for authorization. Does he heed his earlier concept of the attack or go along with his more militarist supporters?

 

            If, as seems probable, there are casualties, retaliations, escalation, diplomatic fallout, persisting civil strife, cross border spillover effects, then Obama is almost sure to face a grassroots protest movement expressing national and global disaffection, and including some of those Democrats who go along because a ‘red line’ once drawn by an American president needs to get respect, even if the cost of doing so is irresponsible, irrational, imprudent, illegal, and immoral. Carrying out Obama’s preferred course of action would mean reverting to the once derided ‘Nixon madman’ approach to foreign policy, that is, inhibiting the Kremlin during the height of the Cold War by making their leaders believe that the American president was trigger-happy and crazy. Do whatever it takes to make sure else that America is feared around the world, endowing even its ill-advised threats with maximum potency. This iron fist style of ‘keeping of the peace’ is totally divorced from adherence to international law and support for the UN. It excessively values keeping ‘the military option’ on the table at all times in the hope of either annihilating its enemies or make them suffer the consequences of opposition to Washington ideas about how to run the world.

 

            If Congress responds with an authorization for force in Syria, and even in a form that exceeds what the president requested, it will no doubt recall the last major Congressional dark folly: the infamous Gulf of Tonkin resolution, giving LBJ a blank check to widen the Vietnam War in ways of his devising. His first step was to escalate the American engagement by attacking North Vietnam from air and sea in 1965. It is never pleasant to revive bad memories except possibly to avoid another foreign policy fiasco, as well as to deepen the impression that America as a imperial superpower has lost its capacity to learn from past mistakes.

 

            Dear friends, if the only way America can seem strong is to cast itself in the role of global bully, supplanting the earlier somewhat more understandable imperial cover of pax Americana, then the wise and virtuous will conclude, if they have not already, that America is actually weak. In this century true strength will not be measured by degrees of military dominance and battlefield victories, but by helping to solve the growing agenda of national, regional, and global problems endangering the future of humanity.

Such a constructive path can only be taken if the major states show respect for international law and the UN Charter as the foundational premises of a sustainable world order. Thinking otherwise, that the history will be interpreted from the militarist perspectives of those who base human and societal security on a global war machine places global civilizations, and even the human species, on a slippery slope of extinction, nothing less! At this time, we need to fear more a clash of rationalities than a clash of civilizations, although both should be transcended.

 

            Could it not be offered in response that such thoughts are a hysterical over-reaction to what will be at worst a flash flood soon to be forgotten? Along these lines, it is contended that any attack on Syria is likely to be over in several days (although the current language of the resolution offers a wide open window to war making by extending authorization to 90 days), the reaction by Syria and its friends, if any is forthcoming, will probably be muted, and life in America, the Middle East, and the world will return to what passes for ‘normalcy.’ Even if we assume that such a moderate unfolding is more or less accurate foretelling, yet even so, the effect would be deeply destructive. It will enable most of us to remain ignorant of an underlying frightening reality: our body politic suffers from this crippling disease of ‘martialitus’ for which there is no known cure, and at present not even a widely agreed upon diagnosis. Indeed, the disgraceful edifice of global surveillance may have as its primary task suppressing knowledge that our political leaders suffer from severe versions of this disease. Snowden, Manning, and Assange were likely seen to pose such a great danger because they were attempting to remove the geopolitical cataracts clouding our vision of such a distressing political reality. After such knowledge, there would be no forgiveness, only urgent responsibilities. Under these conditions cultivating the false consciousness of normalcy is itself an ominous sign of a collective refusal to acknowledge the disease, much less to begin treating it by such moves as a Congressional resolution requiring the president to obtain authorization for non-defensive force from the United Nations and under all circumstances act in accordance with the requirements of international law as objectively determined. It would be also important to insist that the government move toward fulfilling its obligations under the Nonproliferation Treaty of 1968 by tabling a proposal for phased and verified nuclear disarmament. It may also be appropriate to introduce a resolution in Congress that would make mandatory a declaration of war in all instances where international force was to be used by the United States other than in circumstances of genuinely imminent foreign attack.

 

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Syria: U.S. War Making at the Expense of Democracy

31 Aug

 

             The U.S. Government rains drone missiles on civilian human targets anywhere in the world, continues to operate Guantanamo in the face of universal condemnation, whitewashed Abu Ghraib, Bagram, and the torture memos, committed aggression against Iraq and Afghanistan, and invests billions to sustain its unlawful global surveillance capabilities. Still, it has the audacity to lecture the world about ‘norm enforcement’  in the wake of the chemical weapons attack in the Ghouta suburb of Damascus. Someone should remind President Barack Obama and Secretary of State John Kerry that credibility with respect to international law begins at home and ends at the United Nations. Sadly, the American government loses out at both ends of this normative spectrum, and the days of Washington being able to deliver pious messages on the importance of international law are over. No one is listening, and that’s a relief, although it does provide material for those teams of writers working up material for the likes of Jon Stewart, Stephen Colbert, and the many standups at Comedy Central. Yet, of course, this geopolitical TV series is no laughing matter for the long ordeal of the Syrian people.

 

            There is yet another disturbing dimension of this pre-war pseudo debate about recourse to force in retaliation for an alleged use of chemical weapons by Assad against his own people: should a democracy empower its elected leaders to commit the country to war without at least securing specific legislative authorization? The contrast between the approach of the British and American approach to this issue is illuminating. David Cameron, as Prime Minister, along with his Foreign Secretary, strongly favored joining with the United States in launching a punitive attack against Syria, but arranged a prior Parliamentary debate and vote, and clearly indicated his immediate acceptance of the surprising refusal to win backing for such a policy, a show of Parliamentary independence that had not occurred in the country since the late 18th century. Of course, given polls showing only 11% of British citizens supporting an attack on Syria, Cameron may be privately breathing a deep sigh of relief that the vote came out as it did! Obama should be so lucky! If only his powers as Commander-in-Chief included a tool with which to erase imprudent ‘red lines’!

 

            Compare now the Obama approach: speeches informing the country about why it is important to punish the Assad regime so as to uphold American national security interests and to engender respect for international law and several consultations with Congressional leaders. What is absent from the Obama discourse is the word ‘authorization’ or ‘a decent respect for the opinions’ of humanity, as expressed at home and in the world. In my view, this continuing claim of presidential authority to wage war unilaterally, and absent a UN mandate, is creating a deep crisis of legitimacy not only for the U.S., but for all governments that purport to be democracies but commit to war on the decision of the chief executive, as France and Turkey appear to be doing. It is time to face up to this crisis.

 

            Above all, the foundational idea of American republicanism was to demonstrate that the power to declare and wage war was subject to ‘checks and balances’ and ‘separation of powers,’ and in this crucial respect, was unlike the monarchical powers of English kings in war/peace contexts. This makes the Parliamentary rebuff to Cameron not only a revitalizing move for British democracy, but an ironic commentary on the degree to which American ‘democracy’ has perversely moved in an absolutist direction.

 

            It is true that government lawyers as hired hands can always find legal justifications for desired lines of policy. We can count on White House lawyers do just this at the present time: working into the night at Office of the Legal Counsel to prepare breifing material on the broad scope of the powers of the president as Commander-in-Chief, reinforced by patterns of practice over the course of the last several decades, and rounded out with an interpretation of the War Powers Act that supposedly gives the president 60 days of discretionary war making before any obligation exists to seek approval from Congress. Lawyers might quibble, but democracy will be the loser if procedures for accountability and authorization are not restored with full solemnity. In this respect the law should follow, not lead, and what is at stake is whether the republican ideals of limited government would be better served by the original ideas of making it unconstitutional for a president to commit the country to war without a formal and transparent process of public deliberation in the Congress, which is that part of government charged with reflecting the interests and values of the citizenry. Let the lawyers be damned if they side with the warrior politicians, however ‘war weary’ they claim to be.

 

            It is worth also noticing that the common arguments for presidential authority do not pertain. The United States is not responding to an attack or acting in the face of an imminent threat. There is no time urgency. Beyond this the American public, as is the case with the publics of all other Western democracies, oppose by large majorities acts of war against Syria. What makes this situation worse, still, is the refusal to test diplomacy. By international law norms, reinforced by the UN Charter, a use of force to resolve an international conflict is legally a matter of ‘last resort’ after diplomatic remedies have been exhausted. But here they are not even being tried in good faith, which would involve bringing Iran into the process as a major engaged player, and enlisting Russia’s support rather than exhibiting post-Snowden pique. Obama claims that no one is more war weary than he is, but his behavior toward Syria, Iran, Egypt, and Russia convey the opposite message.

 

            And finally, some urge what be called ‘a humanitarian right of exception,’ namely, that this crime against humanity committed against the Syrian people requires a proportionate response from the perspective of international morality, regardless of the constraints associated with international law. Disregarding ‘the slippery slope’ of moral assessments, this particular response is being presented as directed against the Assad regime, but not motivated by any commitment to end the civil war or to assassinate Assad. There are reasons for viewing Washington’s moralizing reaction to the horrifying chemical attacks of August 21, especially the rush to judgment with respect to attributing responsibility to the Assad regime without awaiting the results of the UN inspection team and the odd timing of a such a major attack just as the inspectors were arriving in Damascus. It is not only habitual skeptics that recall Colin Powell’s presentation of conclusive evidence of Iraq’s possession of WMD to the UN Security Council in the lead up to the unlawful Iraq War. We should by now understand that when a foreign policy imperative exists for the occupant of the White House, factoids replace facts, and moral/legal assessments become matters of bureaucratic and media duty.

             

 

Polarization Doomed Egyptian Democracy (Revised)

5 Aug

Prefatory Note: I realize that some of the readers of this blog are unhappy with long blogs, and so I offer an apology for this one in advance. My attempt is to deal with a difficult set of issues afflicting the Middle East, especially the seemingly disastrous Egyptian experiment with democracy that has resulted in a bloody coup followed by violent repression of those elected to lead the country in free elections. The essay that follows discusses the degree to which anti-Muslim Brotherhood polarization in Egypt doomed the transition to democracy that was the hope and dream of the January 25th revolutionary moment in Tahrir Square that had sent shock waves of admiration around the world! This has been revised and corrected since its original posting to take account of comments from readers, and my own further reflections. These themes in a rapidly unfolding series of political dramas require an openness to acknowledging failures of assessment. 

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When Polarization Becomes Worse than Authoritarianism Defer Democracy

Doubting  Democracy

We are living at a time when tensions within societies seem far more disruptive and inhumane than the rivalries of sovereign states that have in the past fueled international wars. More provocatively, we may be living at a historical moment when democracy as the government of choice gives rise to horrifying spectacles of violence and abuse. These difficulties with the practice of democracy are indirectly, and with a heavy dose of irony, legitimizing moderate forms of authoritarian government. After years of assuming that ‘democracy’ was ‘the least bad form of government’ for every national setting, there are ample reasons to raise doubts. I make such an observation with the greatest reluctance.

There is no doubt that authoritarian forms of rule generally constrain the freedom of everyone, and especially the politically inclined. Beyond this, there is a kind of stagnant cultural atmosphere that usually accompanies autocracy, but not always. Consider Elizabethan England, with Shakespeare and his cohort of contemporary literary giants. There have been critical moments of crisis in the past when society’s most respected thinkers blamed democracy for the political failings. In ancient Greece, the cradle of Western democracy, Plato, Aristotle, and Thucydides came to prefer non-democratic forms of government, more fearful of the politics of the mob than that led Athens into imprudent and costly foreign adventures.

Of course, there are times when the established order is fearful of democracy even in countries that pride themselves on their democratic character. Influential voices in the United States were raised during the latter stages of the Vietnam War in opposition to what were perceived by conservatives to be the excesses of democracy. Infamously, Samuel Huntington in an essay published by the influential Trilateral Commission compared the anti-war movement in the United States to the canine disorder known as ‘distemper,’ clearly expressing the view that the people should leave the matter of war and peace in the hands of the government, and not expect to change policy by demonstrating in the streets.

It was only twenty years ago that the collapse of the Soviet Union was hailed throughout the West as an ideological triumph of liberal democracy over autocratic socialism. Prospects for world peace during this interval in the 1990s were directly linked to the spread of democracy, while such other reformist projects as the strengthening of the UN or respecting international law were put aside. European and American universities were then much taken with the theory and practice of ‘democratic peace,’ documenting and exploring its central claim that democracies never go to war against one another. If such a thesis is sustained, it has significant policy implications. It would follow, then, that if more and more countries become ‘democratic’ the zone of peaceful international relations becomes enlarged. This encouraging byproduct of democracy for sovereign states was reinforced by the internal experience of the European Union, which while nurturing democracy established a culture of peace in what had for centuries been the world’s worst war zone.

This positive assessment of democratization at the national level is offset by the extent to which Western liberal democracies have recourse to war to promote regime change in illiberal societies. The motivations for such wars is not purely political, but needs to be linked to the imperatives of neoliberal globalization, and to the class interests of the 1%.

In the post-9/11 period the Bush presidency embraced ‘democracy promotion’ as a major component of a neoconservative foreign policy for the United States in the Middle East. Skepticism about the nature such an endorsement of democracy was widespread, especially in the aftermath of the 2003 invasion of Iraq. Harsh criticism was directed U.S. Government self-appointed role as the agent of democratization in the region, especially considering the unacknowledged motivations: oil, regional hegemony, and Israeli security. By basing democracy promotion on military intervention, as in relation to Iraq, the American approach was completely discredited even without the admitted failure resulting from prolonged occupation of the country. The supposed antii-authoritarian interventions in Iraq, Afghanistan, and Libya have not implanted a robust democracy in any of these places, but rather corruption, chaos, massive displacement, and persisting violent conflict. Beyond this disillusioning experience, foreign leaders and world public opinion refused to accept Washington’s arrogant claim that it provided the world with the only acceptable political model of legitimate government.

Despite this pushback, there remains an almost universal acceptance of the desirability of some variation democracy as the only desirable form of national governance. Of course, there were profound disagreements when it comes to specific cases. There were some partial exceptions to the embrace of democracy. For instance, there was support in the Middle East for monarchies as sources of stability and unity, but even these monarchs purported to be ‘democratic’ in their sympathies unless directly challenged by their subjects/citizens.  Democracies maintained their positive reputation by protecting citizens from abuse by the state, by empowering the people to confer authority on the national government, generally through periodic elections, and by developing a governing process that was respectful of the rule of law and human rights.

Issues during the last decade in the Middle East have brought these issues to the fore: the Green Revolution against theocratic democracy in Iran, the secular de facto rejection of majoritarian democracy in Turkey, and the various transitional scenarios that have unfolded in the Arab countries, especially Egypt, after the anti-authoritarian uprisings of 2011. The torments of the region, especially connected with the Anglo-French colonialist aftermath of the Ottoman Empire, followed by an American hegemonic regime tempered by the Cold War rivalry with the Soviet Union, and aggravated since the middle of the last century by the emergence of Israel, along with the ensuing conflict with the dispossessed Palestinian people, have made the struggle for what might be called ‘good governance’ a losing battle, at least until 2011. Against such a background it was only natural that the democratizing moment labeled ‘the Arab Spring’ generated such excitement throughout the region, and indeed in the world. Two years later, in light of developments in Syria, Egypt, Libya, and elsewhere it is an occasion that calls for sympathetic, yet critical, reflection.

In the last several years, there has emerged in the region the explosive idea that the citizenry enjoys an ultimate right to hold governments accountable, and if even a democratic government misplays its hand too badly, then it can be removed from power even without awaiting of elections, and without relying on formal impeachment procedures. What makes this populist veto so controversial in recent experience is its tendency to enter a coalition with the most regressive elements of the governmental bureaucracy, especially the armed forces, police, and intelligence bureaucracies. Such coalitions are on their surface odd, bringing together the spontaneous rising of the often downtrodden multitude with the most coercive and privileged elements of state and private sector power.

The self-legitimizing claim heard in Tahrir Square 2013 was that only a military coup could save the revolution of 2011, but critics would draw a sharp distinction between the earlier populist uprising against a hated dictator and this latter movement orchestrated from above to dislodge from power a democratically elected leadership identified as Islamic, accused of being non-inclusive, and hence illegitimate.

 

The Arab Upheavals

The great movements of revolt in the Arab world in 2011 were justly celebrated as exhibiting an unexpected surge of brave anti-authoritarian populist politics that achieved relatively bloodless triumphs in Tunisia and Egypt, and shook the foundations of authoritarian rule throughout the region. Democracy seemed to be on the march in a region that had been written off by most Western experts as incapable of any form of governance that was not authoritarian, which was not displeasing to the West so long as oil flowed to the world market, Israel was secure, and radical tendencies kept in check. Arab political culture was interpreted through an Orientalizing lens that affirmed passivity of the citizenry and elite corruption backed up, if necessary, by a militarized state. In the background was the fear that if the people were able to give voice to their preferences, the end result might be the theocratic spread of Iranian style Islamism.

It is a sad commentary on the state of the world that only two years later a gloomy political atmosphere is creating severe doubts about the workability of democracy, and not only in the Arab world, but more widely. What has emerged is the realization that deep cleavages exist in the political culture that give rise to crises of legitimacy and governability that can be managed, if at all, only by the application of repressive force. These conflicts are destroying the prospects of effective and humane government in a series of countries throughout the world.

The dramatic and bloody atrocities in Egypt since the military takeover on July 3rd have brought these realities to the forefront of global political consciousness. But Egypt is not alone in experiencing toxic fallout from severe polarization that pits antagonistic religious, ethnic, and political forces against one another in ‘winner take all’ struggles. Daily sectarian violence between Sunnis and Shi’ia in Iraq make it evident that after an anguishing decade of occupation the American crusade to liberate the country from dictatorship has failed miserably. Instead of a fledging democracy America has left behind a legacy of chaos, the threat of civil war, and a growing belief that only a return to authoritarianism can bring stability to the country. Turkey, too, is enduring the destabilizing impact of polarization, which has persisted in the face of eleven years of extraordinary AKP success and energetic and extremely capable leadership periodically endorsed by the voting public: strengthening and civilianizing political institutions, weakening the military, improving the economy, and greatly enhancing the regional and international standing of the country. Polarization should not be treated as just a Middle Eastern phenomenon. The United States, too, is increasingly afflicted by a polarizing struggle between its two main political parties that has made democratic government that humanely serves the citizenry and the national public good a thing of the past. Of course, this disturbing de-democratizing trend in America owes much to the monetizing machinations of Wall Street and the spinning of 9/11 as a continuing security challenge that requires the government to view everyone, everywhere, including its own citizens, as potential terrorist suspects.

The nature of polarization is diverse and complex, reflecting context. It can be socially constructed around the split between religion and secularism as in Egypt or Turkey or in relation to divisions internal to a religion as in Iraq or as between classes, ethnicities, political parties, geographic regions. In the concreteness of history each case of polarization has its own defining set of circumstances, often highlighting minority fears of discrimination and marginalization, class warfare, ethnic and religious rivalry (e.g. Kurdish self-determination), and conflicting claims about natural resources. Also, as in the Middle East, polarization is not merely the play domestic forces struggling for ascendancy. Polarization is also being manipulated by powerful external political actors, to what precise extent and to what ends is unknowable. It is revealing that in the demonstrations in Cairo during the past month both pro- and anti-Morsi protesters have been chanting anti-American slogans, while the government invites a series of Western dignitaries with the aim of persuading the leadership of the Muslim Brotherhood to accept the outcome of the coup.

Egypt and Turkey

The circumstances of polarization in Egypt and Turkey, although vastly different, share the experience of Islamic oriented political forces emerging from the shadow land of society after years of marginalization, and in Egypt’s case brutal suppression. In both countries the armed forces had long played an important role in keeping the state under the rigid control of secular elites that served Western strategic and neoliberal economic interests. Up to now, despite periodic trials and tribulations, Turkey seems to have solved the riddle of modernity much more persuasively than Egypt.

In both countries electoral politics mandated radical power shifts unacceptable to displaced secular elites. Opposition forces in the two countries after enjoying decades of power and influence suddenly saw themselves displaced by democratic means with no credible prospect of regaining political dominance by success in future elections, having ceded power and influence to those who had previously been subjugated and exploited. Those displaced were unwilling to accept their diminished role, including this lowered status in relation to societal forces whose values were scorned as anti-modern and threatening to preferred life styles that were identified with ‘freedom.’ They complained bitterly, organized feverishly, and mobilized energetically to cancel the verdict of the political majority by whatever means possible.

Recourse to extra-democratic means to regain power, wealth, and influence seemed to many in the opposition, although not all, the only viable political option, but it had to be done in such a way that it seemed to be a ‘democratic’ outcry of the citizenry against the state. Of course, the state has its own share of responsibility for the traumas of polarization. The elected leadership often over-reacts, becomes intoxicated with its own majoritarian mandate, acts toward the opposition on the basis of worst case scenarios, adopts paranoid styles of response to legitimate grievances and criticisms, and contributes its part to a downward spiral of distrust and animosity. The media, either to accentuate the drama of conflict or because is itself often aligned with the secular opposition, tends to heighten tensions, creating a fatalist atmosphere of ‘no return’ for which the only possible solution is ‘us’ or ‘them.’ Such a mentality of war is an anathema for genuine democracy in which losers at any given moment still have a large stake in the viability and success of the governing process. When that faith in the justice and legitimacy of the prevailing political system is shattered democracy cannot generate good governance.

The Politics of Polarization

The opposition waits for some mistake by the governing leadership to launch its campaign of escalating demands. Polarization intensifies. The opposition is unwilling to treat the verdict of free elections as the final word as to an entitlement to govern. At first, such unwillingness is exhibited by extreme alienation and embittered fears. Later on, as opportunities for obstruction arise, this unwillingness is translated into political action, and if it gathers enough momentum, the desired crises of legitimacy and governability bring the country to the brink of collapse. Much depends on material conditions. If the economy is doing reasonably well, calmer heads usually prevail, which may help explain why the impact of severe polarization has been so much greater in Egypt than Turkey. Morsi has succumbed to the challenge, while Erdogan has survived. Reverse the economic conditions, and the political outcomes would also likely have been reversed, although such a possibility is purely conjectural.

The Egyptian experience also reflects the extraordinary sequence of recent happenings. The Tahrir Square upheavals of January 25th came after 30 years of Mubarak rule. A political vacuum was created by the removal of Mubarak that was quickly filled by the Supreme Council of the Armed Forces (SCAP), but accompanied by the promise that a transition to democracy was the consensus goal binding all Egyptians, and once reached the generals would retire from the political scene. The popular sentiment then favored an inclusive democracy, which in 2011, was a coded way of saying that the Muslim Brotherhood should henceforth participate in the political process, finally being allowed to compete for a place in the governing process after decades of exclusion. There were from the beginning anxieties about this prospect among many in the anti-Mubarak ranks, and the Brotherhood seemed at first sensitive to secular and Coptic concerns even pledging that it had no intention of competing for the presidency of Egypt. All seemed well and good, with popular expectations wrongly assuming that the next president of Egypt would be a familiar secular figure, almost certainly drawn from the renegade membership of the fuloul, that is, a former beneficiary of the regime who joined the anti-Mubarak forces during the uprising. In the spring of 2011 the expectations were that Amr Moussa (former Secretary General of the Arab League and Mubarak Foreign Minister) would become Egypt’s first democratically elected president and that the Muslim Brotherhood would function as a strong, but minority, force in the Egyptian parliament. As the parliament would draft a new constitution for the country, this was likely to be the first show of strength between the secular and religious poles of Egyptian political opinion.

Several unforeseen developments made this initial set of expectations about Egypt’s political future unrealizable. Above all, the Muslim Brotherhood was far more successful in the parliamentary elections than had been anticipated. These results stoked the fears of the secularists and Copts, especially when account was taken of the previously unappreciated political strength of several Salafi parties that had not previously shown any interest in participating in the government. Religiously oriented political parties won more than 70% of the contested seats, creating control over the constitution-making process. This situation was further stressed when the Brotherhood withdrew its pledge not to seek control of the government by fielding its own candidate for the presidency. This whole transition process after January 2011 was presided over by administrative entities answerable to SCAP. Several popular candidates were disqualified, and a two-stage presidential election was organized in 2012 in which Mohamed Morsi narrowly defeated Ahmed Shafik in the runoff election between the two top candidates in the initial vote. Shafik, an air force commander and the last Mubarak prime minister, epitomizing the persisting influence of the fuloul. In a sense, the electoral choice given to the Egyptian people involved none of the Egyptian revolutionary forces that were most responsible for the overthrow of Mubarak or representing the ideals that seemed to inspire most of those who filled Tahrir Square in the revolutionary days of January 2011.  The Brotherhood supported the anti-Mubarak movement only belatedly when its victory was in sight, and seemed ideologically inclined to doubt the benefits of inclusive democratization, while Shafik, epitomizing the fuloul resurgent remnant of Mubarakism, never supported the upheaval, and did not even pretend to be a democrat, premising his appeal on promises to restore law and order, which would then supposedly allow Egypt to experience a rapid much needed economic recovery.

It was during the single year of Morsi’s presidency that the politics of extreme polarization took center stage. It is widely agreed that Morsi was neither experienced nor adept as a political leader in what was a very challenging situation even if polarization had not been present to aggravate the situation. The Egyptian people anxiously expected the new leadership to restore economic normalcy after the recent period of prolonged disorder and decline. He was a disappointment, even to many of those who had voted for him, in all of these regards. Many Egyptians who said that they had voted for Morsi expressed their disenchantment by alleging the ‘nothing had changed for the better since the Mubarak period,’ and so they joined the opposition.

It was also expected that Morsi would immediately signal a strong commitment to social justice and to addressing the plight of Egyptian unemployed youth and subsistence masses, but no such promise was forthcoming. In fairness, it seemed doubtful that anyone could have succeeded in fulfilling the role of president of Egypt in a manner that would have satisfied the majority of Egyptians.  The challenges were too obdurate, the citizenry too impatient, and the old Mubarak bureaucracy remained strategically in place and determined to oppose any change that might enhance the reputation of the Morsi leadership. Mubarak and some close advisors had been eliminated from the government, but the judiciary, the armed forces, and the Ministry of Interior were fuloul activist strongholds. In effect, the old secularized elites were still powerful, unaccountable, and capable of undermining the elected government that officially reflected the political will of the Egyptian majority. Morsi, a candidate with admittedly mediocre credentials, was elected to the presidency by an ominously narrow margin, and to make matters worse he inherited a mission impossible. Yet to unseat him by a coup was to upend Egypt’s fledgling democracy, with currently no hopeful tomorrow in view.

The Authoritarian Temptation

What was surprising, and disturbing, was the degree to which the protest movement so quickly and submissively linked the future of Egypt to the good faith and prudent judgment of the armed forces. All protest forces have received in exchange was the forcible removal of Morsi, the renewal of a suppressive approach to the Brotherhood, and some rather worthless reassurances about the short-term nature of military rule. General Adel-Fattah el-Sisi from the start made it clear that he was in charge, although designating an interim president, Adly Mansour, a Mubarak careerist, who had only days before the coup been made chief judge of the Supreme Constitutional Court by Morsi’s own appointment. Mansour has picked a new prime minister who selected a cabinet, supposedly consisting of technocrats, who will serve until a new government is elected. Already, several members of this civilian gloss on a military takeover of the governing process in Egypt have registered meek complaints about the excessive force being used against pro-Morsi demonstrations, itself a euphemism for crimes against humanity and police atrocities.

Better Mubarakism than Morsiism was the underlying sentiment relied upon to fan the flames of discontent throughout the country, climaxing with the petition campaign organized by Tamarod, a newly formed youth-led opposition, that played a major role in organizing the June 30th demonstrations of millions that were underpinned in the final days by a Sisi ultamatum from the armed forces that led to the detention and arrest of Morsi,. This was followed by the rise to political dominance of a menacing figure, General Adel-Fattah el-Sisi, who has led a military coup that talks of compromise and inclusive democracy while acting to criminalize the Muslim Brotherhood, and its leadership, using an onslaught of violence against those who peacefully refuse to fall into line. This military leadership is already responsible for the deliberate slaughter of Morsi loyalists in coldblooded tactics designed to terrorize the Muslim Brotherhood, and warn the Egyptian people that further opposition will not be tolerated.

I am certainly not suggesting that such a return to authoritarianism in this form is better for Egypt than the democracy established by Morsi, or favored by such secular liberals as Mohamed ElBaradei, who is now serving as Deputy Prime Minister. Unfortunately, this challenge directed at a freely elected democracy by a massive popular mobilization to be effective required an alliance with the coercive elements drawn from the deep state and private sector entrepreneurs. Such a dependency relationship involved a Faustian Bargain, getting rid of the hated Morsi presidency, but doing so with an eyes closed acceptance of state terror: large-scale shooting of unarmed pro-Morsi demonstrators, double standards dramatized by General Sisi’s call to the anti-Morsi forces to give him a populist mandate to crush the Brotherhood by coming into the streets aggressively and massively. Egypt is well along a path that leads to demonic autocratic rule that will likely be needed to keep the Brotherhood from preventing the reestablishment of order. General Sisi’s coup will be written off as a failure if there continues to be substantial street challenges and bloody incidents, which would surely interfere with restoring the kind of economic stability that Egypt desperately needs in coming months if it is to escape the dire destiny of being ‘a failed state.’ The legitimating test for the Sisi coup is ‘order’ not ‘democracy,’ and so the authoritarian ethos prevails, yet if this means a continuing series of atrocities, it will surely lead to yet another crisis of legitimacy for the country that is likely to provoke a further crisis of governability.

The controversial side of my argument is that Egypt currently lacks the political preconditions for the establishment of democracy, and in such circumstances, the premature attempt to democratize the political life of the country leads not only to disappointment, but to political regression. At this stage, Egypt will be fortunate if it can return to the relatively stable authoritarianism of the Mubarak dictatorship. Because of changed expectations, and the unlawful displacement of the Morsi leadership, it has now become respectable for the Tamarod, self-appointed guardians of the Tahrir Square revolution to support the ‘cleansing’ the Muslim Brotherhood. It is sad to take note of these noxious odors of fascism and genocide now contaminating the political atmosphere in Egypt.

The very different experience in Iraq, too, suggests that ill-advised moves to install democracy can unleash polarization in a destructive form. Despite his crimes, polarization had been kept in check during the authoritarian rule of Saddam Hussein, The attempted transition to democracy was deeply compromised by coinciding with the American occupation and proconsular rule. It produced sectarian polarization in such drastic forms that it will likely either lead to a new authoritarianism that is even more oppressive than what Saddam Hussein had imposed or resolved by a civil war in which the victor rules with an iron hand and the loser is relegated to the silent margins of Iraqi political life.

In the post-colonial world it is up to the people of each country to shape their own destiny (realizing the ethos of self-determination), and outsiders should rarely interfere however terrible the civil strife. Hopefully, the peoples of the Middle East will learn from these polarization experiences to be wary of entrusting the future of their country to the vagaries of majoritarian democracy, but also resistant to moves by politically displaced minorities to plot their return to power by a reliance on anti-democratic tactics, coalitions with the military, and the complicity of the deep state. There is no single template. Turkey, although threatened by polarization, has been able so far to contain its most dire threats to political democracy. Egypt has not been so lucky. For simplistic comparison, Turkey has had the benefits of a largely evolutionary process that allows for a democratic political culture to take hold gradually at societal and governmental levels. Egypt has, in contrast, experienced abrupt changes in a setting of widespread economic distress, and a radical form of polarization that denied all legitimacy to the antagonist, transforming the armed forces from foe to friend of the opposition because it was the enemy of their enemy. If this is the predictable outcome of moves to establish democracy, then authoritarian leadership may not be the worst of all possible worlds in every circumstance. It depends on context. In the Middle East this may require a comparison of the risks of democratization with the costs of authoritarianism, and this may depend on the degree and nature of polarization.

The presence of the oil reserves in the Gulf, as well as Iran, Iraq, and Libya, along with Israel’s interest in avoiding the emergence of strong unified democratic states in the region makes the Middle East particularly vulnerable to the perils of polarization. In other regions similar structures of antagonism exist, but generally with less disastrous results. The dynamics of economic globalization cannot be divorced from the ways in which nominally independent sovereign states are subjected to the manipulative storms of geopolitics.

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Reviving the Israel-Palestine Negotiations: The Indyk Appointment

30 Jul

Indyk KerryAppointing Martin Indyk as Special Envoy to the upcoming peace talks was to be expected. It was signaled in advance. And yet it is revealing and distressing.

The only other candidates considered for the job were equally known as Israeli partisans: Daniel Kurtzer, former ambassador to Israel before becoming Commissioner of Israel’s Baseball League and Dennis Ross, co-founder in the 1980s (with Indyk) of the AIPAC backed Washington Institute for Near East Policy; handled the 2000 Camp David negotiations on behalf of Clinton.

The winner among these three was Martin Indyk, former ambassador to Israel (1995-97; 2000-01), onetime AIPAC employee, British born, Australian educated American diplomat, with a long list of pro-Israeli credentials.

Does it not seem strange for the United States, the convening party and the unconditional supporter of Israel, to rely exclusively for diplomatic guidance in this concerted effort to revive the peace talks on persons with such strong and unmistakable pro-Israeli credentials?

Kerry NetanWhat is stranger, still, is that the media never bothers to observe this peculiarity of a negotiating framework in which the side with massive advantages in hard and soft power, as well as great diplomatic and media leverage, needs to be further strengthened by having the mediating third-party so clearly in its corner. Is this numbness or bias? Are we so accustomed to a biased framework that it is taken for granted, or is it overlooked because it might spoil the PR effect of reviving the moribund peace process?

John Kerry, the U.S. Secretary of State, whose show this is, dutifully indicated when announcing the Indyk appointment, that success in the negotiations will depend on the willingness of the two sides to make ‘reasonable compromises.’ But who will decide on what is reasonable? It would be criminally negligent for the Palestinians to risk their future by trusting Mr. Indyk’s understanding of what is reasonable for the parties. But the Palestinians are now potentially entrapped. If they are put in a position where Israel accepts, and the Palestinian Authority rejects, “(un)reasonable compromises,” the Israelis will insist they have no “partner” for peace, and once more hasbara will rule the air waves.

It is important to take note of the language of reasonable compromises, which as in earlier attempts at direct negotiations, excludes any reference to international law or the rights of the parties. Such an exclusion confirms that the essential feature of this diplomacy of negotiations is a bargaining process in which relative power and influence weighs heavily on what is proposed by and acceptable to the two sides. If I were advising the Palestinians, I would never recommend accepting a diplomatic framework that does not explicitly acknowledge the relevance of international law and the rights of the parties. In the relation of Israel and Palestine, international law could be the great equalizer, soft power neutralizing hard power. And this is precisely why Israel has worked so hard to keep international law out of the process, which is what I would certainly recommend if in Tel Aviv’s diplomatic corner.

Can one even begin to contemplate, except in despair, what Benjamin Netanyahu and his pro-settler cabinet consider reasonable compromises?  On what issues can we expect Israel to give ground: borders, Jerusalem, refugees, settlements, security?

It would have been easy for Kerry to create a more positive format if he had done either of two things: appointed a Palestinian or at least someone of Middle Eastern background as co-envoy to the talks. Rashid Khalidi, President Obama’s onetime Chicago friend and neighbor, would have been a reassuring choice for the Palestinian side. Admittedly, having published a book a few months ago with the title Brokers of Deceit: How the U.S. Undermined Peace in the Middle East, the appointment of Khalidi, despite his stellar credentials, would have produced a firestorm in Washington. Agreed, Khalidi is beyond serious contemplation, but what about John Esposito, Chas Freeman, Ray Close? None of these alternatives, even Khalidi, is as close to the Palestinians as Indyk is to the Israelis, and yet such a selection would have been seen as a step taken to close the huge credibility deficit. Yet such credibility remains outside the boundaries of the Beltway’s political imagination, and is thus inhabits the realm of the unthinkable.

It may be that Kerry is sincere in seeking to broker a solution to the conflict, yet this way of proceeding does not. Perhaps, there was no viable alternative. Israel would not come even to negotiate negotiations without being reassured in advance by an Indyk-like appointment. And if Israel had signaled its disapproval, Washington would be paralyzed.

The only remaining question is why the Palestinian Authority goes along so meekly. What is there to gain in such a setting? Having accepted the Washington auspices, why could they not have demanded, at least, a more neutral or balanced negotiating envoy? I fear the answer to such questions is ‘blowin’ in the wind.’

And so we can expect to witness yet another charade falsely advertized as ‘the peace process.’ Such a diversion is costly for the Palestinians, beneficial for the Israelis. Settlement expansion and associated projects will continue, the occupation with all its rigors and humiliations will continue, and the prospects for a unified Palestinian leadership will be put on indefinite hold. Not a pretty picture.

This picture is made more macabre when account is taken of the wider regional scene, especially the horrifying civil war in Syria and the bloody military coup in Egypt. Not to be forgotten, as well, are Israeli threats directed at Iran, backed to the hilt by the U.S. Congress, and the terrible legacy of violent sectarian struggle that is ripping Iraq apart. Naturally, there is speculation that some kind of faux solution to the Israel/Palestine conflict would release political energy in Washington that could be diverted to an anti-Assad intervention in Syria and even an attack on Iran. We cannot rule out such infatuations with morbid geopolitical projects, but neither should we assume that conspiratorial scenarios foretell the future.

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Global Big Brother and the Snowden Hollywood Chase

16 Jul


The post below is a major revision of another piece on the Snowden Affair that was published in AJE. I have dwelled on the pursuit of Snowden because it raises such vital issues of principle, but also because so much of the public discourse has proceeded on a mistaken understanding of the applicable international law. Beyond the legal guidelines on extradition and asylum that are applicable, there are considerations of world order: protecting dissent and pluralism in a global setting in which the principal political actors are sovereign states that increasingly rely on secrecy and security rationales to constrain democratic open spaces. What Snowden did was to expose this dynamic of constraint in relation to secret surveillance programs administered  by private, for profit, contractors. Also exposed was the ‘Global Big Brother’ implications of extending surveillance to foreign societies and their governments. It is these questions that should receive our attention, and the Hollywood circus chase of Edward Snowden should cease for humanitarian and political reasons.

 

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I find the discourse surrounding the Snowden Affair bewildering. The latest reports suggest that the United States is using maximum political leverage, including coercive diplomacy, to discourage small Latin American countries from granting asylum to Edward Snowden. It is also complaining that Russia is giving Snowden ‘a propaganda platform’ and expressing its ‘disappointment’ with China/Hong Kong for its earlier refusal to expel Snowden back to the United States to face charges once his passport was cancelled.

 

This anger is misdirected.  Taking the overall situation into account, whatever anger has been generated by the Snowden Affair, should be directed at the United States for expecting other governments under the circumstances to transfer custody over Snowden. From almost every angle of relevant law, morality, and politics the human rights case for protecting Snowden against the long arm of American criminal law is overwhelming. Anyone who commits nonviolent ‘political crimes’ should almost always be entitled to be protected, and should certainly not be compelled to hole up in an airport transit lounge for weeks of anguishing suspense while governments sort out the interplay between dealing justly with Snowden and not upsetting the diplomatic applecart.

 

The persisting official U.S. approach was concisely conveyed by an American embassy official in Moscow to a Human Rights Watch representative who then was apparently asked to relay it to Snowden at his airport press conference held a few days ago: “U.S. authorities do not consider him to be a human rights defender or a whistleblower. He broke the law and he has to be held accountable.” Yes, Snowden broke American law, but he did it to reveal improprieties in the American surveillance programs that raised serious questions of the Constitutional rights of citizens, as well as the overseas legitimate concerns of foreign governments.  President Obama made an enigmatic statement to the press about the pursuit of Snowden: “We’re following all the appropriate legal cannels and working with various other countries to make sure the rule of law is observed.” If read as I would interpret the applicable rule of law, the United States should abandon its efforts to gain custody as Snowden’s alleged crimes are ‘political offenses.’ Obviously, Obama has a different understanding.

 

Russia did its part to create legal confusion when the Russian president, Vladimir Putin, told the world media that Moscow was refusing to comply with the American request to turn Snowden over because Russia had no extradition treaty with the United States, but such an assertion overlooks the political offense exception to extradition, which should certainly be applied here.

 

It has become increasingly evident even to American public opinion that a twisted logic has gripped Washington in this case. What is more, the underlying U.S. assumptions have been partially accepted by many governments throughout the world who should know better, namely that Snowden should not be the benefit of sanctuary in the face of this all out effort by the United States to prosecute him criminally. There are no applicable extradition treaties that bind the governments to turn Snowden over for prosecution to the United States in the countries where he has so far been present, and even if such a treaty did bind China or Russia, it should not be of help to Washington. Remember the elaborate inquiry into whether the Spanish extradition request in 1998 so as to prosecute the Chilean dictator, Augusto Pinochet, should be honored led to an elaborate set of legal inquiries in Britain where he was detained; he was finally sent home from London to Chile on the grounds that his medical condition made him unfit to stand trial in Spain.

It is standard practice for international law to allow governments to refuse a request for extradition in the event that the accusation involves a political crime.  It is true that the definition of a political crime is unsettled. It is widely understood that violent and heinous behavior involved in genocide, crimes against humanity, terrorism, and maybe hate speech, are not considered to be ‘political crimes.’ The rationale for this exception to transnational criminal law enforceable is humane and in keeping with a pluralist world of sovereign states. As with any protective policy, there may be a cost, but the democratic ethos is in favor of incurring such costs in the interest of curtailing abuses of state power. Such costs seem worth bearing, especially in the United States, considering several recent trends: projection of global power in a unique manner; imposing a regime of homeland security on the American people that has been shown vulnerable to abuse; a decline in the checks and balance mechanisms that offer the citizenry protection against autocratic tendencies of government, especially under wartime conditions; privatization of the security and paramilitary functions of the state. Snowden’s acts should be seen as swimming against this authoritarian tide.

 

It is a matter of upholding the quality of world order, as well as supporting an international legal order that makes the world safe for political diversity and dissent. It is the latter norm that is raised by the Snowden disclosures, the global public interest in strengthening the options of individuals who challenge what they believe to be an overreaching of state power. In the world of the 21st century, ideological diversity is less significant than whistleblowing dissent that is a fantastic public service on behalf of democratic openness, countering tendencies to rely on excessive secrecy in the name of post-9/11 security in which literally everyone, everywhere is a hypothetical threat. Of course, the balance of values and interests is not so clear except to conspiracy-minded dogmatists. The state is responsible for protecting its people against threats, and these can be mounted from within and without. It is said that ‘two wrongs don’t make a right,’ but here it is possible that ‘two rights should not be treated as a wrong.’ It may be that Snowden deserves some credit even here as reportedly he has not disclosed some material that would expose the way in which the National Security Agency (NSA) operates, which could jeopardize reasonable data collection procedures.

 

Should revealing a secret government surveillance system of global proportions be treated as revealing an international  wrong? It should be a ‘no brainer’ that Snowden’s alleged crimes are quintessentially ‘political’ in nature, which would make a grant of extradition an unlawful and regressive violation, as well as an encroachment on Snowden’s human rights. Not only this, but by far the most serious ‘crimes’ exposed by Snowden documented the seeming wrongdoing of the U.S. Government and its private contractors, including Snowden’s employer, Booz, Allen, & Hamilton. As the world now knows thanks to Snowden, the controversial surveillance targets were not only the totality of Americans, but, as well, included foreign governments and many of their most confidential activities. Under these circumstances, it seems surprising that Washington has been so vigorous in the pursuit of Snowden under conditions that made it inappropriate to prosecute him for crimes under U.S. law so long as he remained outside the country.

 

To date, the mainstream media dutifully tagging along with the crime chase narrative. The American strategy has managed to keep public attention focused on Snowden rather than on what his disclosures to date have revealed, and what more further bomb shells may be present in the material that is in the hands of the media, but not yet disclosed. It is one more negative example of ‘American exceptionalism.’ It is hard to imagine that the political leadership in Moscow or Beijing, or even London or Paris, would be lecturing Washington in a similar fashion if the shoe were on the other foot. Such a government would probably and sensibly shut up, and hope that the whole mess would quietly slip from view. Why the United States decides to act differently is worth a separate investigation.

 

We need to realize that extradition is a technique to foster maximum international collaboration designed to encourage the enhanced enforcement of national criminal law. If extradition is unavailable, as here, or even if it had been available, it would be inapplicable, there exists no respectable legal basis for the American international pursuit of Snowden? The approach adopted by Washington is quite absurd if examined objectively, and rests exclusively on its presumed geopolitical clout. What the United States has been arguing is that since it claims the authority to cancel summarily Snowden’s passport (which itself may not be ‘legal’ since the right to travel is constitutionally protected unless there has been a prior formal judicial proceeding), he has no legal right to be present in a foreign country, and hence the politically appropriate act by a foreign government is to expel him forthwith to his country of nationality. In effect, such an approach if generally adopted would make extradition completely superfluous, and in fact, because of its limitations, far less effective than the passport cancellation/expulsion ‘remedy’ that would circumvent the political crimes exception where it is most needed and appropriate.

 

Lawyers, of course, earn their living by finding ingenious ways to produce counter-arguments that sometimes override not only common sense, but public reason. In this vein, it can be plausibly argued that the crimes charged against Snowden involve espionage laws and theft of government property, and as such, extradition could be granted because such behavior does not deserve to be treated as a political crime? Some commentators have reinforced this assert by pointing to the volunteer Israeli spy, Jonathan Pollard, who has languished in American jails for years to show that the U.S. is entitled to gain control over Snowden to punish those who violate its espionage laws. Even the slightest reflection would reject the relevance of such an analogy. Pollard was unlawfully giving highly classified information to a foreign government and apprehended in the territory where the crime was committed, which makes the political nature of the crime irrelevant. If Snowden remained in the United States his political motivations could be argued in a court, but would not exempt him from criminal indictment and prosecution. His crimes could then be explained as politically motivated extra-legal instances of civil disobedience in the Thoreau/Martin Luther King tradition. Snowden’s conduct might also be defended legally by stressing his non-criminal intentions and the ‘necessity’ he reasonably believed provided a basis to reveal the realities about the truly frightening scope and depth of surveillance, and thus avoid the greater harm to public interests by its undisclosed contiuation. These were more or less the arguments that Daniel Ellsberg so persuasively relied upon in the Pentagon Papers case 40 years ago to support his contention that the American people were entitled to know how their leaders manipulated facts and law to justify Vietnam War policies.

 

What the U.S. Government is attempting with Snowden, it seems, is a classic instance of bait and switch. Since extradition could not get the results Washington so desperately wanted even if it had been available, only diplomatic leverage could do the job. Here international law is less help to Snowden, although I would have hoped that international morality would come to his rescue. The debate now evidently swirls around the appropriateness of a grant of asylum by some foreign government, and securing safe passage to such a country. Surely, a foreign government that acceded to American demands and handed Snowden over for prosecution would bear the responsibility of knowing that Snowden’s imprisonment would follow as certainly as night follows day, and that they were weakening the protection of individuals who are wanted by governments eager to prosecute political crimes.

 

So far no government has been so craven as to adopt such a course of action, although none has really mounted a principled challenge to what the United States has done, and several European states have unlawfully denied air navigation rights to Bolivia’s presidential plane because the United States suspected that Snowden was on board. And apparently Austria allowed the plane carrying Evo Morales, President of Bolivia, to make an emergency landing and then be searched, and only after it was found that he was not on board was the plane allowed to resume its flight. If he had been on board, then issue of transfer would have been raised.

There does exist an extradition treaty between Austria and the United States that entered into force in 2000, and contains the following provision in Article 4(1): “Extradition shall not be granted if the offense for which extradition is requested is a political offense.” End of story!

 

States possess wide discretion with respect to asylum policy, although asylum  is conferred as a human right by Article 14(1) of the Universal Declaration of Human Rights. Asylum should be granted whenever there exists well-founded grounds for fearing persecution if the person in question is expelled to the country of nationality. The granting and withholding of asylum has always been surrounded bycontroversial ideological considerations. During the Cold War the United States, although not formally granting asylum, never deported someone seek sanctuary from Castro’s Cuba or other Communist countries and rarely allowed sanctuary for claimants from anti-Communist countries even if fears about their wellbeing if returned were well established. It is far preferable to put asylum policy on a principled basis, but as matters now stand, there is no international legal standards that govern asylum practice.

 

Because asylum, unlike extradition, is treated as discretionary at the national level, diplomatic pressure is to be expected. Asylum is situated at the interface of law and morality, creating ample room for political maneuver. Intense geopolitical pressures can be brought to bear as in this case, but inappropriately from the perspective of human rights or the maintenance of a democratic and pluralist world order. It is particularly unseemly to place small Latin American countries under the gun of United States’ retaliatory diplomacy, especially when these governments are acting empathetically toward someone whose challenged conduct was undertaken on behalf of freedom and democracy with nothing personal to gain materially and much to lose.  It was not as if Snowden was disgruntled after being fired from his lucrative joy as a government contract employee. Or even like the CIA retirees who wait until their pensions kick in before breaking with the agency, and writing their

‘show and tell’ stories.

 

Surely, Russia is better situated than Venezuela to harbor Snowden without having to worry about adverse political consequences.  In Russia went ahead and offered Snowden asylum, perhaps the White House would express its frustration by issuing an intemperate statement about Russia’s unfriendly move, but likely leave at that. Doing anything more would be incredibly foolish, but of course that is no assurance that it wouldn’t happen.

 

All along the true challenge to the U.S. Government, the American and world independent media, and to governments and people throughout the world is consider whether such a massive regime of secret unregulated surveillance by the U.S. government in the name of national security is legally, morally, and politically acceptable. Snowden’s individual fate, although properly a matter of the greatest concern, is secondary to the substance of the issues of principle that are present.  In an unusual show of global public spiritedness and sensitivity, Navi Pillay, the UN High Commissioner for Human Rights issued a highly relevant statement: “Snowden’s case has shown the need to protect persons disclosing information on matters that have implications for human rights, as well as the importance of ensuring the rights of privacy. National systems must ensure that there are adequate avenues for individuals disclosing violations to express their concern without fear of reprisal.”

 

Despite the hue and cry associated with this rather indecent and extended effort by the U.S. Government to gain custody of Snowden, it is forgotten that his ‘criminal’ acts have already had some beneficial results:

–opening an overdue national debate in the United States as to the proper balance between surveillance and security;

–creating a global awareness of the extent to which the American surveillance regime has a global reach that threatens confidentiality of foreign governmental activity and the privacy of ordinary persons everywhere;

–encouraging relevant Congressional committees to consider placing limitations on invasions of privacy;

–tightening of the rules and policies relating to Department of Justice interference with journalists via acquisition of phone logs and emails.

 

We will miss the most crucial point of Snowden’s ‘crimes’ if we do not devote our attention to these fundamental political challenges directed at human security, democratic ways of life, and a pluralist world order. To be  distracted by the circus of the Snowden chase any longer is to play along with a shameless geopolitical caper!

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Misreading the Snowden Affair

11 Jul

This post is a revised and modified version of an essay published as an Op/Ed two days ago by Al Jazeera English; it attempt to reflect on the significance of the Snowden disclosures, and why governments did not rebuff the American efforts to take Snowden into custody as an accused criminal by the simple assertion that ‘political crimes‘ should never be the subject of cooperative inter-governmental efforts to achieve the enforcement of criminal law in a foreign country. The world benefits from the safety valve of such sanctuary, as does the country that is seeking to arrest and punish the whistleblower even if most of its leaders and opinion makers do not realize this. So far even the U.S. Government has not insisted that Snowden’s crime is somehow not to be considered ‘a political crime,’ nor could it plausibly make such an argument. For this reason to capture Snowden the United States has relied on its diplomatic clout and geopolitical capacity to impose costs on those who do not comply with its wishes. So far in the Snowden Affair it is small Latin American countries, including Bolivia, Ecuador, and Venezuela, that have risked the ire of the United States by pursuing independent policies with respect to Snowden, and acting correctly from the perspective of law and morality.

 

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            I had thought that there was a clear set of principles that make the frantic American diplomatic pursuit of Edward Snowden as a fugitive from justice a rather empty and futile gesture. As far as I can tell, there is not even a need for asylum, which is normally reserved for someone with reasonable fears that persecution will occur is forced to return to his country of nationality. Every foreign governments should have been prepared to grant Snowden residence status because his alleged criminal acts in the United States were without doubt political crimes.

 

            I had thought it was as straightforward as law can be that any person who has committed a political crime should be exempted from mandatory extradition even if a treaty existed imposed a duty on its parties to hand over individuals accused of serious criminal activity. To be sure, from the perspective of the United States Government, Snowden’s exposure of the PRISM surveillance program was a flagrant violation of the Espionage Act and breach of classification constraints was unlawful. But it was also as self-evidently a political crime as almost any undertaking can be. There was no violence involved or threatened, and no person is harmed by the disclosures.

Quite the contrary, information in the public interest, related to the defense of individual liberties and national sovereign rights was made available, enhancing the prospects for protecting democracy against its many enemies.

 

            What puzzles me is why the refusal to hand Snowden over by expelling him to the United States, which is what Washington has asked Russia to do, raises any kind of serious question beyond wondering how and why the U.S. government officials posed such a request almost in the form of a demand in the first place. The U.S. Government approached Moscow as if they were harboring a common criminal: “We expect the Russian Government to look at all options available to expel Mr. Snowden to the United States to face justice for the crimes with which he is charged.” Putin spurned the request, but he might have made his correct stand stronger either by indicating that Snowden was welcome to remain in Russia or by rebuffing such a strongly worded request as inappropriate.

 

            It is also puzzling why governments in Europe did not politely respond to Washington by simply saying that it has long been their firm policy and consistent practice not to collaborate with foreign governments in the pursuit of individuals accused of committing nonviolent political crimes. There are excellent public policy and humanitarian reasons why such ‘criminals’ should not be treated internationally as fugitives from justice. Whistleblowing serves the overall public interest relating to maintain a balance of state and society in democratic polities, and providing sanctuary for those who commit political crimes benefits the public good of a state-centric world order.  

 

            It seems clearly within the domain of reason to believe that the extent of secret surveillance, both conducted by the United States within its own borders and globally, is posing a dangerous threat to the future of democracy, to the freedom, privacy, and the security of individuals, and to the national sovereignty of all states. In these respects, Snowden’s crimes are from a global perspective not crimes at all, but should be viewed as timely and brave contributions to human security.

 

            His disclosures can also be interpreted from within the United States as acts of civil disobedience, that is, deliberate violations of law to call attention to greater wrongs.   It was Snowden’s conscience as a citizen that appears to have led him to act against his normal interests, giving up a successful career and high income as a skilled government contract employee working in the private sector and accepting the pressures and insults that he must have anticipated would follow upon such a frontal challenge to counter-terrorist security policies relied upon by the most powerful country in the world. There is every indication that Snowden knew exactly what he was doing, and why. He deliberately violated the applicable criminal law of the United States in a sensitive area of national security, and not surprisingly has been labeled ‘a traitor’ by politicians and some media opinion writers, and some zealots have even accused him of ‘treason.’ Beyond this, more moderate critics have insisted that unlike Daniel Ellsberg who remained in the country after he released the Pentagon Papers, Snowden does not deserve to be respected as a whistleblower because he did not stay around to face the legal music, subservience to the criminal law system being regarded as the essential expression of good faith by those who claim to be acting for the public good when they defy the law for a supposedly higher good. It should be appreciated that in the post-9/11 world, especially within the United States, there is an almost unlimited willingness of American courts to treat government procedures of surveillance and policies of confidentiality as ‘reasonable’ provided only that a justification is made that such measures are needed to keep American safe and prevent future terrorist incidents. It is true that Snowden is insisting that his balancing of security and freedom is to be preferred over that of the government, including its elected representatives and leaders.

 

            The U.S. Government international pursuit of Snowden seems to  contradict its own long standing practice of refusing to give up to foreign governments those wanted for political crimes, including in some instances even shielding persons charged with terrorist activity if the target country is viewed as an enemy state. The most notorious example of such a pattern involves Luis Posada Carrilles, an exile from Cuba with a long record of involvement in anti-Castro terrorist activity and state terrorism. Carrilles, among other violent acts, is alleged to have been centrally involved with a plot to blow up a Cuban passenger plane in 1976 that killed all 73 persons on board. He has been living for decades without legal difficulties in Florida. This is not meant to show the extremes to which the political crimes doctrine is carried. Rather it illustrates carrying this exemption from criminal accountability much too far, and raises the opposite problem from that associated with the affair of Snowden.

 

            The shameful behavior of several European governments, succumbing to American pressure, cannot be overlooked, and suggests the extent to which law and morality can be bent by the exertion of geopolitical leverage. It is notable that such well established governments of France, Portugal, Spain, and Italy caved in, denying overflight rights to the plane carrying Evo Morales, President of Bolivia, apparently hoping to persuade a friendly government to seize Snowden wherever the plane eventually landed, and then turn him over to American authorities if he were on board who would have him transported back to the United States to face charges. It should hardly be surprising that such diplomatic hard ball at Bolivia’s expense angered several Latin American countries, justifiably sensitive to such a display of U.S. willingness to throw its weight around in a manner humiliating to a head of state in a Latin American country. It is unimaginable that the United States would tolerate such behavior if its president were to be denied normal overflight rights because there was believed to be on board an Iranian who had just revealed some state secrets about Iran’s nuclear program because he was fearful that the development of nuclear weapons by Iran would lead to war. Undoubtedly this effort to divert the Bolivian presidential plane was an anguishing reminder to Latin America that the imperial mentality responsible for the Monroe Doctrine and ‘gunboat diplomacy’ in the Western Hemisphere was not entirely a thing of the past.

 

            It is not known why Snowden himself shifted the context from the exemption of political crimes to a request for asylum, which presupposes a justifiable fear of persecution of returned to the country of nationality. It may be that he was not advised about the availability of political crimes exception to extradition or that he was informed by Russia and other governments that he would not welcome to remain in their country, perhaps because of seeking to avoid diplomatic difficulties with the United States. As it was, the U.S. officials and influential media commentators treated the refusal of Russia, China, and Hong Kong to hand Snowden over as an unfriendly, if not hostile, act. Secretary of State Kerry somewhat bizarrely reminded Russia of their recent cooperation in relation to the Boston Marathon terrorist case, as if this somehow created an obligation on Russia’s part to behave in a similar way with respect to Snowden. What make this bizarre is the seeming equivalence struck between the Boston murderers and Snowden.

 

            It is against such a background that Nicolás Maduro, President of Venezuela, offered Snowden asylum on July 5th, the national holiday celebrating independence in his country. The offer of asylum to Snowden on such an occasion was resonant with symbolism relating to a reminder to Washington that time have indeed changed, and even small Latin American countries will define their own national interests and shape public policy on the basis of Venezuelan values. Snowden has reportedly accepted the offer, but there is no indication how he will make sure that his trip from Shermetyevo International Airport in Moscow to Caracas is not interrupted on route in a way that allows the United States to take him into custody.

 

            There is another question lurking in the background. Will Venezuela be now made to pay for doing the right thing? And what of Bolivia, Nicaragua, Ecuador that each indicated sympathy with Snowden’s request for asylum? There has been speculation that in the post-Chavez era Maduro has been seeking to normalize relations with the United States, and that this goal might now be put on indefinite hold. And what about Hong Kong, China, and Russia that spurned American efforts to have Snowden expelled to the United States after his passport was cancelled? How far will the U.S. Government push this anti-leak diplomacy?

 

            I suppose that this attack of ‘surveillance panic’ is a symptom of the larger importance being attached by Washington to cyber security, and worries about disabling attacks directed at information networks by way of hacking and debilitating viruses. Even granting this, to go after Snowden in this way is more than panic, it suggests one more example of American exceptionalism that causes anger and resentment throughout the world—in effect, the United States is insisting that we expect from others far more than we are prepared to give. It is especially striking that among Snowden’s disclosures are confirmations of the earlier rumors that the United States and Israel had collaborate to develop the computer worm or virus, Stuxnet, that had been used in 2010 to disrupt operations in Iran’s nuclear facilities. As with the use of drones around the world, the blowback risks seem once more ignored as America flexes its geopolitical muscles without regard for the constraints of international law, the logic of reciprocity, and the values of a free society.

 

            Reciprocity is the indispensable foundation of effective international law, and it is here that the Snowden Affair seems particularly disturbing. If a Chinese Snowden was to make comparable revelations that violated Chinese criminal law there would not be a chance in a million that the United States would return such an individual to China, and wouldn’t Washington be outraged if China used its leverage to persuade governments to divert a plane suspected of carrying the person they were seeking to prosecute, especially if it were a plane known to be carrying the president of a sovereign state?

 

           

            Why should it be deemed ‘unfriendly’ to offer sanctuary to Snowden as European countries, and even China and Russia, seemed to believe? Why were even the Latin American countries seemingly only led to act when the Bolivian president was denied normal international comity in international airspace as head of a sovereign state, and this seemed like an affront that called for a response? Giving sanctuary to political crimes helps makes the world safe for political dissent and pluralism, and offers a shield against the autocratic security state. It should be expected as a dimension of a commitment to human rights and democracy. It is admirable that Venezuela, whatever its reasons, stepped forward to offer Snowden asylum, which was certainly deserved from the perspective of refugee law, considering the vindictive and punitive approach taken toward such other recent ‘leakers’ as Bradley Manning and Julian Assange.

 

            What may be most regrettable in this yet unfinished drama is the American refusal to engage in self-scrutiny, to wonder whether surveillance and secrecy are not being abused, a gross over-reaction to 9/11 and extremist threats, that alters the balance between state and society in an anti-democratic manner, as well as treats the entire world as if falls within the ‘territorial’ domain of U.S. national security. Such a worldview is decidedly imperial as it has no intention of honoring reciprocal claims made by others, and implicitly places the United States above the law by allowing it to seize such a fugitive from justice wherever in the world he might be found, thereby manipulating cooperative international criminal law enforcement to suit its own particular priorities.

 

            Instead of seeking to prosecute and punish Snowden, the healthy national response would be to consider placing stronger limits on governmental surveillance and extraterritorial security claims, and certainly to open such a debate. It is crucial that American citizens not be fooled by the politics of deflection by which the government and a pliant media avoid the message of disclosure and obsess about the messenger who discloses. It has never been more important for Americans and others to discuss the substantive concerns that prompted Snowden to take such a hazardous course. And yet the energy of the country has been almost exclusively devoted up to now to the purported need to punish this individual of conscience who chose courageously to endure the predictable fury of a state when some of its most unseemly secrets were shared with the public. Snowden gave us as planetary citizens this incredible opportunity and responsibility to evaluate the acceptability of these state secrets, which if not taken, might fasten forever the tentacles of the security state upon an increasingly nominal and pliant body politic. 

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