Archive | October, 2017

The Spiritual Sources of Legal Creativity: The Legacy of Father Miguel d

31 Oct

 

[Preliminary Remarks: What follows is the modified transcript of a talk given at Fordham University School of Law honoring the memory of the recently deceased Maryknoll priest, Father Miguel d’Escoto, who had been both the Foreign Minister of Sandinista Nicaragua and President of the UN General Assembly, as well as pastor to the poor in the spirit of Pope Francis, an extraordinary person who fused a practical engagement in the world with a deeply spiritual nature that affected all who were privileged to know and work with him.]

 

THE INAUGURAL FR. MIGUEL D’ESCOTO

MEMORIAL LECTURE: “THE SPIRITUAL SOURCES OF LEGAL CREATIVITY”

October 24, 2017

Program

Fordham University School of Law

150 West 62nd Street Room 3-03

 

Chair:

Kevin M. Cahill, M.D.

University Professor, IIHA, Fordham University

Lecturer:

Richard A. Falk

Professor Emeritus, Princeton University School of Law

 

Discussant:

Martin S. Flaherty

Leitner Family Professor of Law, Fordham Law School

 

************************************************************************

 

It is a humbling honor to speak at this gathering of remembrance dedicated to a truly great human being who inspired and touched the lives and activities of so many of us in this room. Kevin Cahill is among those here who had such an intimate and sustained friendship with Father Miguel. Kevin is also a person with his own abundant inspirational gifts, and I remain deeply grateful to him for originally bringing me into contact with Miguel.

 

Others here today could assuredly speak more knowingly about the person. I will only offer this personal observation: Miguel exhibited a remarkable quality of moral radiance that was immediately apparent to all those fortunate enough to cross his path. The only person in my experience who possessed a comparable depth of ethical being was Nelson Mandela with whom I had a single and brief, yet memorable, encounter.

 

The title given to my remarks is something I admit imposing upon myself, and now at this moment of delivery strikes me now as far too ambitious. I chose such a theme because it does reflect the most enduring and empowering dimension of my association with Miguel, and seemed appropriate to reflect upon in the venerable academic venue of the Fordham School of Law.

 

My point of departure is this: if we believe, which many do not, that justice is the proper end of law, then we must struggle to overcome the calculative or transactional mentality that dominates our legal culture, restricting our attitudes and endeavors involving law to the domain of the feasible. I am fully aware that I am endorsing an unconventional outlook by elevating the moral imagination and what I would call ‘utopian realism.’ This kind of formulation disregards the conventional understanding of law as essentially offering a suite of techniques for problem-solving that presupposes a view of politics as ‘the art of the possible.’

 

It is this kind of ethical radicalism that made the life of Father Miguel so exemplary, and in the best sense, ‘revolutionary,’ for all those whose lives he affected whether in ministering to the poor or challenging the high and mighty, whether acting in a pastoral capacity or as a man of the world. It is important to appreciate that Miguel was both an ardent Nicaraguan nationalist and a passionate citizen of the world, what I call a ‘citizen pilgrim,’ embarked on a pilgrimage to a global future that embodies peace with justice.

Let me preface this inquiry into the spiritual sources of legal creativity with a general remark that pertains particularly to international law. I may be almost alone among law professors in believing that that international law is the field of law that is most relevant to the ultimate survival of the human species. The sad reality is that international law continues to struggle for survival as a field of study, being often denigrated, evaded, and violated by the most powerful governments on the planet whenever law is seen as blocking a preferred policy and there are always many apologists among the ranks of legal experts and diplomats ready to offer a comforting rationalization.

 

And yet viewed from a perspective other than war/peace and security, international law in relation to trade and investment has basically served to protect the interests of the rich and powerful, while shackling the poor and vulnerable. In other words, international law has this dual face: it bends to the geopolitical will of the militarily powerful while often cruelly imposing accountability on the weak. At the founding of the UN a Mexican diplomat caustically observed that ‘we have created an organization that regulates the mice while the tigers roam freely.’ And so it is.

 

It is against this background that Miguel d’Escoto’s spiritual wisdom creates a contrast with business as usual in the world of real politik. Even for most global reformers, the criterion for constructive action is a realistic appreciation of achievable limits, what I would identify as horizons of feasibility. We are living increasingly in a world in which there are growing gaps between what is feasible and what is necessary, what I identify as horizons of necessity. Adapting to climate change in the Age of Trump underscores this menacing gap between feasibility and necessity. As a diplomat Father Miguel was almost unconcerned with feasibility as conventionally understood if it stood in the way of necessity or desirability. He was deeply sensitive to the imperatives of necessity, and even more so to the moral and spiritual imperatives of doing what is right under a particular set of circumstances, and for this reason alone he was most responsive to what I identify here as horizons of spirituality.

 

He was motivated by a belief, undoubtedly reflecting his religious faith, in the potency of right reason, and on this basis conceived of international law as a crucial vehicle for realizing such a vision, embracing with moral enthusiasm a kind of ‘politics of impossibility’ in which considerations of justice outweighed calculations of feasibility or the obstacles associated with geopolitics. It is with an awareness of the trials and tribulation of Nicaragua and its long suffering population that Father Miguel turned to law as an imaginative means of empowerment.

 

Let me illustrate by reference to the historic case that Nicaragua brought against the United States in the early 1980s at the International Court of Justice in The Hague. It was a daring legal flight of moral fancy to suppose that tiny and beleaguered Nicaragua could shift its struggle from the bloody battlefields of U.S. armed intervention and a mercenary insurgency against the Sandinista Government of which he was then Foreign Minister to the lofty legal terrain that itself had been originally crafted to reflect the values and interests of dominant states, the geopolitical players on the global stage. But more than this it was a brilliant leap of political imagination to envision the soft power of law neutralizing the hard power of high tech weaponry in a high stakes ideological struggle being waged in the midst of the Cold War.

 

Such an attempt to shift the balance of forces in an ongoing conflict by recourse to international law and the World Court had never before been made in any serious way. It was a David and Goliath challenge that the World Court as the highest judicial institution in the UN System had yet to face in a war/peace context, and it turned out to be a test of the integrity of the institution.

 

Let me recall the situation in Nicaragua briefly. The United States was supporting a right-wing insurgency, the counterrevolutionary remnant of the Somoza dictatorship, a single family that had cruelly and corruptly ruled Nicaragua between 1936 and 1974 on behalf of corporate America (the era of ‘banana republics’), leaving the country in impoverished ruins when the Somoza dynasty finally collapsed. The Somoza-oriented insurgents were known as the Contras, and were called ‘freedom fighters’ by their American sponsors and paymaster because they were opposing the Sandinista Government that had won a war of national liberation in 1979, but was accused by its detractors of leftist tendencies and Soviet sympathies, which was the right-wing ideological way of obscuring the true affinity of the Sandinista leadership with the teachings of Liberation Theology rather than with the secular dogmatics of Marxism. It was a way of depriving the people of Nicaragua of their inalienable right of self-determination. The United States Government via the CIA was training and equipping the Contras, and quite overtly committing acts of war by mining and blockading Managua, Nicaragua’s main harbor and its lifeline to the world.

 

It was these interventionary undertakings that flouted the authority of international law and the UN Charter. Father Miguel’s addressed the UN General Assembly in his capacity as Nicaragua’s acting Foreign Minister, vividly describing the conflict with some well-chosen provocative words: “It is obvious that the war to which Nicaragua is being subjected is a U.S. war, and the so-called Contras are merely hired hands serving the diabolical objectives of the Reagan Administration.” Later in the same speech he condemned the U.S. Government for recently appropriating an additional $100 million “to finance genocide against our people.” [Address to UNGA, Nov. 3, 1986]

 

I quote this robust language partly to show that Father Miguel’s spiritual nature did not always mean a gentle demeanor or denote the absence of a fighting spirit. As here, when deemed appropriate to the situation, Miguel readily relied on undiplomatic candor to get his point across. He was also insistent on using such occasions to talk truth to power and to lay blame and responsibility for the torment of the Nicaraguan people where it belonged, however impolitic it was to do so.

 

Without going into the details of the case, it was possible for Nicaragua to lodge such a complaint against the United States because the U.S. Government had earlier agreed to accept the authority of the ICJ if the other side in an international conflict had been similarly committed. With this awareness, Father Miguel in his role as Foreign Minister (1979-90) realized two things: that the sovereign rights of Nicaragua were being overridden in a manner in flagrant violation of international law and that the World Court was supposed to provide countries with a nonviolent option of resolving international legal disputes, seen as an important contribution to maintaining world peace that the U.S. had itself strongly championed throughout most of the 20th century.

 

It may not seem so unusual for a small country to take advantage of a potential judicial remedy, but in fact it had never happened—no small state had ever gone to the World Court to protect itself against such military intervention, and to do so on behalf of a progressive government in the Third World in the midst of the Cold War seemed to many at the time like a waste of time and money that Nicaragua could ill afford.

 

It is here where one begins to grasp this potentially revolutionary idea of relying upon the spiritual sources of legal creativity. Father Miguel was convinced that what the United States Government was doing was legally and morally wrong, and that it was an opportune time for the mice to fight back against the predator tiger. It was an apt occasion to act by reference to horizons of spirituality.

 

Yet this did not mean that Miguel would ignore the pragmatic dimensions of effectiveness. Nicaragua managed to persuade Harvard law professor, Abram Chayes, to act on their behalf as head legal counsel. This was a brilliant tactical move that I applauded at the time (even though it meant that as Nicaragua’s second choice I lost out). Aside from being a first-class international lawyer with a high global profile, Chayes had previously served as John F. Kennedy’s Legal Advisor and close confidant at the time of the Cuban Missile Crisis. The symbolism could not have been more pointed, underlining the fact that Chayes was committed to upholding international law rather than being a combatant in the ideological sideshow carried on throughout the Cold War. Not surprisingly, the Wall Street Journal audaciously described Chayes as ‘a traitor’ for accepting such a role.

 

I had the opportunity to work with Chayes and Father Miguel in the American Irish Historical Society here in Manhattan that was operating under the benign tutelage of none other than Dr. Kevin Cahill. We worked hard for several days as a team developing the arguments both as to the authority of the ICJ to adjudicate, what we lawyers call ‘jurisdiction,’ to be decided in a separate preliminary decision, as well as on the substance of Nicaragua’s allegations, which constituted the second phase of the litigation. What was so impressive to me then, and even now, almost 40 years later, is that this effort to combine a somewhat utopian motivated legal undertaking with a practical mastery of the technical dimensions of the case illustrated for me the extraordinary blending of spiritually grounded, yet worldly wisdom with the down to earth skills of legal craft.

 

The outcome of the Nicaragua narrative is too complicated to describe properly, but in short—counsel for Nicaragua persuaded the Court that it had jurisdictional authority, at which point the United States petulantly, yet not unexpectedly, withdrew from the proceedings correctly realizing that if it could not prevail at this jurisdictional phase it had virtually no chance to have its legal arguments accepted at the merits phase of the case. Further, the U.S. Government was so displeased with the ICJ that it seized the occasion to renounce its earlier formal acceptance of what is technically referred to as ‘compulsory jurisdiction,’ which meant that no state could commence such an action against the USG in the future, and that the U.S. was itself permanently foreclosed from proceeding against a state against which it had legal grievances unless that state gave its consent.

 

This retreat from adjudicating international legal disputes has been an unintended and unfortunate lasting effect of the Nicaragua case. The American stance of viewing international law as only viable when it supports its geopolitical tactics has sent a damaging message to the world. It has definitely weakened the role and potential of the ICJ and of international judicial authority generally. In one sense, the US withdrawal was understandable for those who are driven to shape foreign policy by feasibility calculations rather than by certain abiding values such as, here, adhering to the rule of law. It hardly required a legal genius in the State Department to anticipate that if the Court upheld its legal authority to pronounce upon the controversy, then it would almost certainly rule in favor of Nicaragua on the substantive issues. Despite some technical issues involving the selection of the applicable legal authority, given the sweeping prohibitions of international law and the UN Charter against uses of force except in situations of self-defense against a prior armed attack, the pro-Nicaragua outcome was entirely predictable.

 

What was rather intriguing from a jurisprudential point of view was that despite its much hyped boycott of the proceedings and accompanying denunciation of the jurisdictional finding, the U.S. in the end quietly complied with the principal finding in The Hague, namely, that the naval blockade of Nicaragua’s harbors was unlawful. As would be expected, the USG never acknowledged that it was complying, nor did Nicaragua dance in the streets of Managua, but the cause/effect relationship between the judicial decision and compliant behavior was clear to any close observer.

 

There was then some reality to the expression ‘the force of law,’ and the USG, even during the Reagan presidency, did not want to stand before the world as openly defying the law, even international law. Such an assessment may have reflected the fact that the U.S. Government was in the midst of a struggle to win the legitimacy war being waged against the Soviet Union, which partly hinged on the relative reputation of these two dueling superpowers in relation to respect for international law and human rights, signature issues of ‘the free world.’

 

For me this Nicaragua experience was a compelling example of Father Miguel’s achievements that followed directly from his deep commitment to the horizons of spirituality and decency. It was far from the only instance. Let me mention two others very quickly. One of my other connections with Father Miguel was to serve as one of his Special Advisors during his year as President of the UN General Assembly thoughout its 63rd session, 2008-09. As continues to be the case, life could become difficult for any leading UN official who openly opposed Israel. Father Miguel was deeply aware of the Palestinian ordeal and unabashedly supportive of my contested role as Special Rapporteur for Occupied Palestine on behalf of the Human Rights Council in Geneva. When I was detained in an Israeli prison and then expelled from Israel at the end of 2008, Father Miguel wanted to organize a press conference in NYC to give me an opportunity to explain what had happened and defend my position. I declined his initiative, perhaps unadvisedly, as I didn’t want to place Miguel in the line of fire sure to follow.

 

At the end of 2008 Israel launched a massive attack against Gaza, known as Cast Lead, and Father Miguel sought to have the General Assembly condemn the attack and call for an immediate ceasefire and Israeli withdrawal. It was a difficult moment for Father Miguel, feeling certain that this was the legally and morally the right thing to do. Yet as events proceeded and diplomatic positions were disclosed, Miguel was forced to recognize that the logic of geopolitics worked differently, in fact so starkly differently that even the diplomat representing the Palestinian Authority at the UN intervened to support a milder reaction than what Miguel deemed appropriate. Unlike his Nicaraguan experience, here the backers of feasibility prevailed, but in a manner that Father Miguel could never reconcile himself to accept.

 

I met many diplomats at UN Headquarters here in NY who said that no one had ever occupied a high position at the UN with Father Miguel’s manifest quality as someone so passionately dedicated to righteous principle. Pondering this, it occurred to me that one possible exception was Dag Hammarskjöld, an early outstanding UN Secretary General, who died in a plane crash, apparently assassinated in 1961 for his principled, yet geopolitically inconvenient, dedication to peace and justice. From his private writings we know that Hammarskjöld’s UN efforts also sprung from wellsprings of spirituality.

 

Most GA presidents take the post as an honorific feather in their cap, the symbolic culmination of a public sector career, and spend the year presiding over numerous tedious meetings and hosting an endless series of afternoon receptions, but never make any effort to influence, much less enhance, the role of the General Assembly or otherwise strengthen the UN as an institution of potential global governance. Miguel, in contrast worked tirelessly to make the UN more effective, more respectful of law, more democratic, and above all, more sensitive to claims reflective of global justice.

 

Miguel took full advantage of his term as president of the General Assembly to provide venues within the Organization that offered humane alternatives to neoliberal economic globalization. He sponsored and organized meetings at the UN designed to overcome current patterns of economic and ecological injustice, making use of the presence in New York City of such non-mainstream economists as Jeffrey Sachs and Joseph Stiglitz, and the prominent Canadian activist author, Maude Barlow. Here again Father Miguel demonstrated his grounded spirituality by once more combining the visionary with the practical.

 

I had the opportunity to work with Father Miguel on several proposals to raise the profile and role of the General Assembly as the most representative and democratic organ of the UN. This initiative was rather strategic and partly meant to counter the US-led campaign to concentrate UN authority in Security Council so that Third World aspirations and demands could be effectively thwarted, and the primacy of geopolitics reestablished after the assault mounted in the 1970s by the then ascendant Nonaligned Movement.

 

What I have tried to describe is this deep bond in the life and work of Father Miguel between the spirituality of his character and motivations and the practicality of his involvement in what the German philosopher, Habermas, calls ‘the lifeworld.’ I find it indicative of Father Miguel’s deep spiritual identity that he suffered a punitive response to his life’s work from the institution he loved and dedicated his life to serving, being suspended in 1985 by Pope John Paul II from the priesthood because of his involvement in the Nicaraguan Revolution. Miguel was reinstated 29 years later by Pope Francis, who many view as a kindred spirit to Miguel.

 

There is an object lesson here for all of us: in a political crisis the moral imperative of service to people and ideals deserves precedence over blind obedience to even a cherished and hallowed institution. This would undoubtedly almost always pose a difficult and painful choice, but it was one that defined Father Miguel d’Escoto at the core of his being, which he expressed over and over by doing the right thing in a spirit of love and humility, but also in a manner that left no one doubting his firmness, his affinities and commitments, as well as his unwavering and abiding convictions.

 

As I suggested at the outset, the daring and creativity that Father Miguel brought to the law and to his work at the UN sprung from spiritual roots that were deeply grounded in both religious tradition and in an unshakable solidarity with those among us who are poor, vulnerable, oppressed, and victimized. For Miguel spirituality did not primarily equate with peace, but rather with justice and an accompanying uncompromising and lifelong struggle on behalf of what was right and righteous in every social context, whether personal or global.

 

 

There is no assurance that this way of believing and acting will control every development in the world or even control the ultimate destiny of the human species. Humanity retains the freedom to fail, which could mean extinction in the foreseeable future.The happy ending of the Nicaragua case needs to be balanced against the prolonged and tragic ordeal of the Palestinian people for which there is still no end in sight. Beyond wins and losses, what I think should be clear is that unless many more of us become attentive to the horizons of spirituality and necessity the outlook for the human future is presently bleak. Father Miguel d’Escoto’s disavowal of the domain of the feasible is assuredly not the only way to serve humanity, but it is a most inspiring way, and points us all in a direction that is underrepresented in the operations of governments and other public institutions, not to mention during the speculative frenzies on Wall Street and the backrooms of hedge fund offices.

 

In my language, Father Miguel d’Escoto was one of the great citizen pilgrims of our time. His life was a continuous journey toward what St. Paul called ‘a better city, a heavenly city’ to manage and shape the totality of life on Planet Earth.

 

 

 

 

 

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The Flawed and Corrupted Genius of American Republicanism

15 Oct

Trump as President makes us think as never before about viability of the American version of constitutional democracy, that is, the ‘republic’ that Ben Franklin promised the people at the time of Constitutional Convention in Philadelphia.

We often forget that Franklin replied to the question by adding several words, “if you’ll keep it.”

With the election of Trump in 2016 these prophetic cautionary words have come home to haunt the country with a cruel vengeance. Of course, arguably nuclear America had long abandoned the pretense of consensual government, and warmongering American had driven the point home with only a whimper of dissent from Congress, mainstream media, and the citizenry. Imagine currently engaged in bombing six countries and combat operations in many more, and the loudest sound from the citizenry or media is an all-encompassing silence. And then we must not forget about the potent ‘deep state’ that took shape during World War II, maturing and consolidating its hold on elected officials during the long Cold War. Or, I suppose, its more visible presence that Eisenhower warned about in his Farewell Address—the military-industrial complex (as abetted by a corporatized media and a wide array of cheerleading think tanks).

 

Yet Trump poses the challenge more bluntly, so crudely that many of us feel we can no longer sit back and hope for the best. So far even the deep state has lost some of its aura of invincibility to the Trump onslaught, although it is fighting back, stacking the White House upper echelons with national security state first responders (McMaster, Mattis, Kelly), and may yet have the last word.

 

The distinctive essence of American republicanism is a distrust of reason on an individual basis combined with a confidence in reason on the level of collective national action. That is the idea of checks and balances, separation of powers, the friction between equal branches of government, the rule of law, and the electoral powers of the citizenry are acknowledgements that the containment and disciplining of individual power and authority are more important than the efficiency of governance. But maybe confusing the efficiency of capital as embodied in the ideology of neoliberal globalization, ideas of restraint in the Executive Branch have gradually been pushed aside as the urgencies of militarism and geopolitics, as well as the preemptive imperatives of security have taken precedence given the time/space features of modern warfare, both in the form of non-state terrorism or in relation to weaponry of mass destruction.

 

In other words, the country has been stripped of any basis for confidence in the rationality of the system to check the irrationalities of the individual. This is where Trump entered the scene, somewhat unintentionally delivering a message: the end of republicanism is at hand, despite the Republicans having the upper hand in all three branches of government. The gap between republicans and Republicans has never been greater.

 

The system is now so flawed that even should the Democrats manage to claw their way back to power the gap would not greatly diminish. The system of republican governance will soon collapse unless the nourishing winds of revolutionary renewal soon arrive.

 

We should not put all the blame, or alternatively, give all the credit to Trump. An insufficient number of American people failed to identify a threat to the virtues of republican government. Neither political party was oriented toward restoring republicanism under 21st century conditions, which would necessitate at a minimum getting rid of nuclear weapons, insisting on Congressional participation in relation to acts of war, safeguarding the national interest by rejecting ‘special relationships’ with Saudi Arabia and Israel, conforming gun control to the true and sensible meaning of the Second Amendment, heeding the call of Black Lives Matter, leading the struggle against global warming, strengthening the UN and respect for international law, relying on ideas of common security, human security, protection of the poor, restorative diplomacy to address threats and disempower adversaries rather than coercive and militarized diplomacy, pursuing global justice by taking the suffering of others seriously, and dealing humanely with the crises of global migration and prolonged refugee status. In other words, the renewal of republicanism requires a new agenda, and undoubtedly requiring a new constitutional convention, and a constitution that might alone give republicanism a second chance.

 

In the meantime, Trump and Trumpism tell us more vividly than we could possibly have imagined about the collapse of 18th century republicanism, and the inability of the system to evolve to meet fundamental changes associated with a globalizing reality that shrinks time and space while stimulating a reactionary politics of ultra-nationalism, territoriality, and ‘gated national communities.’ We need to ask what are system requirements for 21st rationality in the designing of governance structures at all levels of human endeavor.

 

In my view, an ethics of human solidarity and empathy has never been more closely correlated with a politics of human survival, which itself is tied to the urgency of ecological sensitivity to our natural surroundings, including a dangerously deferred implementation of animal rights. When the American Constitution was formulated the guidance of reason was an inspired means to construct a durable government that balanced contradictory goals (admittedly incorporating a gross type of moral blindness in the form of slavery and the rights of native Americans), but now the path to a humane and sustainable future must be built on ethical and ecological foundations in which values are given priority over reason and rationality.

 

The odiousness of Trump’s presidency gives the people of America what might be their last chance to achieve political redemption for themselves, and for others now and in the future who will drawn into the circle of extreme victimization unless this dynamic of renewal suddenly takes hold.          

 

The One and Only Path to Palestine/Israel Sustainable Peace

12 Oct

[Prefatory Note: This post is a slightly modified version of my presentation to the Human Rights Commission of the Italian Parliament on October 11, 2017. The Commission is composed of members of Parliament, and chaired by Hon. Pia Elda Locatelli, representing the city of Bergamo. The presentation was followed by a discussion, and a generally favorable response on the central issue of switching from an emphasis on ‘occupation’ to ‘apartheid.’ To access the Report use this link<https://www.scribd.com/document/342202460/Israeli-Practices-Toward-the-Palestinian-People-and-the-Question-of-Apartheid/>%5D

 

 An Overview of Present Realities

 

We meet at a difficult time from the perspective of the Palestinian people: several developments nationally, regionally, and internationally now deprive Palestinians of that glimmer of hope that comes from seeing light at the end of the tunnel; more fully appraised, the situation is not as bleak for Palestinians as the picture of their struggle being painted from a realistic perspective. A series of factors pointing in both directions can be identified, first to highlight the negative developments from a Palestinian perspective, and then to set forth several developments that are positive with regard to the Palestinian national movement aiming for decades to achieve a just and sustainable peace.

(1) the foreign policy priorities of regional and international political actors have increasingly shifted attention away from the Palestinian ordeal; developments internal to Israel have deliberately accentuated this inattention to Palestinian goals and rights; of special relevance in these regards are the ongoing wars and turmoil in Syria, Yemen, Libya, and Iraq, as well as deteriorating relations and rising tensions of the Iran/US relationship; the moves toward normalization of relations with Israel by the Gulf countries, especially Saudi Arabia; and the unsteady diplomatic approach of the Trump presidency that seems accurately interpreted as supportive of whatever the Israeli government chooses to do, including even accelerated settlement expansion and a rejection of the Palestinian right of self-determination;

(2) Israel and Zionist support groups have launched a variety of initiatives designed to convince the Palestinians that they have been defeated, that their struggle is essentially futile at this stage, and they should move on for their own sake, overtly renouncing their struggle and posture of resistance; the pro-Zionist Middle East Forum, founded by Daniel Pipes has even sponsored a so-called ‘victory caucus’ that basically proclaims an Israeli victory as a way of demoralizing Palestinian activism and global solidarity efforts by treating Palestinian goals as a lost cause;

(3) accelerated Israeli settlement expansion without any adverse pushback from Europe or North America, a development that can be regarded as hammering the final nails into the coffin of ‘the two state solution;’

(4) the widespread recognition that more than 20 years of diplomatic effort within the Oslo framework failed miserably, with the Palestinians paying a heavy price in territory and credibility for engaging so avidly in a diplomatic process so heavily weighted against them; Oslo’s failure permitted Israel to encroach on Occupied Palestinian Territory in a variety of unlawful ways including especially extending the settlement archipelago, illegally building the separation wall on Palestinian occupied territory, and manipulating the ethnic balance in Jerusalem to make the city as a whole more Jewish;

(5) confronting a crisis of viability in Gaza, of both a material and psychopolitical character; not only continuing a decade long blockade that itself amounts to a crime against humanity, but stifling the dreams of young talented Gazans who against all odds have earned foreign fellowships and then are either denied exit permits or entry visas to carry on their studies abroad; this kind of acute frustration, long experienced by Gazans in many forms, is contributing to a new turn among Palestinian youth, who increasingly want to leave Gaza and pursue a more normal life for themselves and their families rather than remain under conditions of virtual captivity to resist and carry on the struggle for empowerment and liberation.

 

Despite all these considerations, there are aspects of the situation, often overlooked in mainstream media, which seem favorable to the Palestinian struggle:

(1) the morale boost that resulted from prevailing in the recent Al Aqsa confrontation concerning control of security arrangements at this site sacred for all Muslims, not just for Palestinians who are Muslim;

(2) a more serious renewal of efforts to bring unity to the relationship between Palestinian political tendencies, especially Fatah and Hamas;

(3) the growing global support for the BDS Campaign, achieving some high visibility successes prompting corporate disengagements from commercial projects related to unlawful Israeli settlements—G4S, Viola; and persuading some high visibility cultural figures not to perform in Israel—Pink Floyd

(4) Palestine is definitely winning the Legitimacy War waged to build stronger and more activist support from international public opinion; such support has been understood as far back as Gandhi as capable of neutralizing the superior military capabilities of a foreign political actor; throughout the decolonization era, the political outcome of struggles for control of state power were eventually won by the party on the right side of history, not as in the 19th Century by the party enjoying military superiority, which in the second half of the 20th century continued to make colonized people suffer greatly, but no longer able to impose their political will; Zionist/Israeli reaction to this set of developments relating to legitimacy has been to shift the conversation about Israel/Palestine relations from the defense of Israeli practices and policies and away from the substance of Palestinian grievances and rights to mount an attack on the motives of those criticizing Israel’s policies and practices, alleging that Israel’s critics are motivated by anti-Semitism, a smear tactic that also is encroaching on academic freedom, but exposing the weakness of Israel’s position on the merits. Internally, the Israeli public discourse is much more focused on the opportunity of fulfilling the maximalist Zionist goal of incorporating the whole of ‘the promised land’ of biblical Israel into the modern state of Israel;

(5) It is my judgment that the biggest development favorable to the Palestinians has been a shift in the public discourse and the articulation of Palestinian demands of peace and solidarity activists from the slogan ‘End the Occupation’ to a clarion call to ‘End Apartheid.’ This shift has been recently legally validated by a UN-sponsored academic study of whether the claim that Israel is an apartheid state stands up to scholarly scrutiny.

 

 

 

The ESCWA Report

 

The UN Report of the Economic and Social Commission for West Asia (ESCWA) entitled “Israeli Practices and the Question of Apartheid” issued a few months ago, and co-authored by myself and Virginia Tilley, a renowned world expert on apartheid and a political scientist on the faculty of the University of Southern Illinois. ESCWA is a regional commission of the UN composed of 18 Arab states, with headquarters in Beirut. The Report was requested by the member states, and we were invited to prepare the report in accordance with academic standards by the Secretariat of ESCWA. The Report was never intended to become an official UN document, but rather the presentation of the views of two scholars with a background presumed relevant for the preparation of such a study:

–the issuance of the report had two immediate effects: first, it immediately became the most widely read and requested report in the history of ESCWA, and secondly, it produced a firestorm at the UN due to harsh criticisms by the U.S. and Israeli representatives who demanded that the Report be formally repudiated, attacking its authors, and insisting that the UN take prompt action or face the defunding consequences;

–the new UN Secretary General, Antonio Gutterez, dutifully responded by instructing ESCWA to remove the Report from its website; the director of ESCWA, Rima Khalaf, refused to follow such an order, believing in the contents and propriety of the Report; in the end she chose to resign rather than submit to UN censorship, explaining her position in an Open Letter to the SG;

–at this point it is not clear what the status of the Report is within the UN System; it has not been officially repudiated, and in fact the 18 foreign ministers representing the members of ESCWA endorsed the conclusions and recommendations of the Report, and urged their acceptance within the UN; I have no idea as to whether such a response will have any impact;

–as indicated the Report was an academic study, although of an admittedly controversial character; prior to its release, the Report was anonymously vetted by three world class scholars each of whom strongly recommended publication; as well, the report contained a disclaimer that stated that the recommendations and conclusions of the Report were those of the authors alone and did not represent the opinions of the UN or ESCWA; and in fact, the Report has to date received no substantive criticism from those who mounted the UN attack or otherwise; it was a pure show of geopolitical leverage that exposed the weakness of international law and the fragility of open discussion of sensitive issues at the UN;

–it is my judgment that the Report is significant for three distinct reasons:

         <(1) The Report considers whether the allegation of Israeli apartheid is backed by sufficient evidence and persuasive legal reasoning in relation not just to the West Bank, as has been frequently alleged in the past, but in relation to the Palestinian people as a whole; such an inquiry means that if apartheid is declared to exist it applies to Palestinians living in Jerusalem, as a minority in Israel, and in refugee camps in neighboring countries as well as to Palestinians living in occupied Palestine or as involuntary exiles throughout the world; the central legal finding is that Israel has established an integrated matrix of control over the Palestinian people as a people so as to maintain the Israeli state as ‘a Jewish state’ in the face of continuous Palestinian resistance for the entire period of Israel’s existence;

         <(2) The Report reaches its conclusions by relying on scholarly methods of analysis, and by examining and interpreting the evidence of Israeli policies and practices in relation to the relevant norms of international law as contained in the 1973 International Apartheid Convention. The essential finding we reached was that Israel intentionally and continuously was responsible for ‘inhuman acts’ as the means by which to subjugate the Palestinian people as a subordinated ‘race.’ This enabled Israel to govern in a discriminatory fashion as ‘a Jewish state;’ in our judgment the Palestinian people were deliberately fragmented so as to facilitate the maintenance of control over a resisting, initially majority non-Jewish population; this ambition to control Palestine was complicated by the additional Zionist objective of seeking to be and be seen as ‘a democratic state;’ such an objective, given the demographic imbalance, virtually necessitated at the inception of Israel as a state, the expulsion of several hundred thousand Palestinians and the destruction of hundreds of Palestinian villages to discourage any prospect of Palestinians returning after the war to reclaim their places of residence and way of life; such exclusion was seen as vital if Israel was to achieve and maintain a Jewish majority population within its borders; the Zionist puzzle, tragic for both peoples, was that only apartheid structures could provide a solution to this three-sided challenge—that is, establishing Israel as simultaneously Jewish, democratic, and hegemonic;

         <(3) this Report has been widely used since its publication, and especially to provide political support and intellectual guidance mandating a civil society shift in tactics and commentary from a focus on ‘ending occupation’ to ‘ending apartheid;’ in my view, this is a crucial and timely shift as international law and the UN had been long ignored by Israel, diplomacy and armed struggle had been tried futile and utterly failed, and Palestinian leadership, such as it is, has faced both a series of stone walls and the humiliation of the notorious separation wall declared contrary to international law by 14 of 15 judges of the International Court of Justice. In effect, there is no serious alternative for Palestinians (and even Israelis) committed to a peaceful future than to rid the Israeli/Palestinian relationship of its present apartheid character.

 

 

Clearing the One and Only Path to a Just and Sustainable Peace

–peace between these two peoples can only be achieved by a credible acknowledgement of their equality of rights with respect to national self-determination; the apartheid structures that currently subjugates Palestinians epitomizes a relationship of inequality; the core obstacle to peace is apartheid, and once this obstacle is removed a productive diplomacy will become possible so long as it proceeds at all stages on the basis equality, keeping in mind that Oslo diplomacy collapsed because it encoded inequality into every aspect of its framework (U.S. as intermediary, excluding international law) and by adopting a bargaining process that favored Israel due to disparities in power and influence;

<the overriding political challenge is how to clear this path to peace, given Israeli firm control and resistance to even the acknowledgement of apartheid as descriptive of the current relationship between the two peoples; Israeli apartheid cannot be ended without a reformulation of Zionist goals; Israel must be persuaded to become content with an existence within a secular state hosting a Jewish homeland; such an altered stance would require abandoning the insistence on being a Jewish state; such a downsizing of Zionist objectives would actually be consistent with the scope of the original British pledge as set forth in the ultra-colonialist Balfour Declaration (recent archival research evidently establishes that a Jewish homeland was actually the longer term intention of Lord Alfred Balfour, as if this matters a century later); Israeli apartheid will not be dismantled until there is significant further growth of the Palestinian global solidarity movement, including the backing of some governments, especially several key governments in the global South; there would need to be sufficient, sustained global pressure to induce Israeli leaders and citizens to recalculate their interests, leading enough to decide to base their future on cooperation and coexistence with the Palestinians rather than their domination and exploitation; at this point, such an outcome seems unlikely and even utopian, but history has a strange way of staging dramatic surprises, and in such cases where an abrupt reversal of policy takes places, it will be only be admitted as a possibility after it has already been decided upon;

<The South African ending of apartheid was precisely such a surprise; it was totally unexpected in the 1990s that the combination of African resistance and the global anti-apartheid campaign would produce a peaceful transition to a multi-racial constitutional democracy presided over by Nelson Mandela, who until his release was serving a long-term prison sentence as an alleged terrorist; what changed so abruptly in South Africa was not the moral stance of the white elite that had invented and cruelly imposed the apartheid structure as a supposedly permanent solution to race relations in the country, but rather a cold recalculation of interests, and especially a comparison of the balance of advantages and disadvantages of continuing to exist as a pariah state in the world and abandoning apartheid, thereby risking African governance and possible retaliation, yet by so risking, taking a course that would alone restore the international legitimacy of the South African state;

<Of course, there are many differences in the Israeli situation, including Israel’s disavowal of apartheid as relevant to its management of the relationship between the two peoples, as well as Israel’s considerable success in avoiding pariah status within the international community through the practice of sophisticated diplomacy and public relations, backed by an aggressive arms sales program, and above all, by being the beneficiary of the geopolitical muscle of the U.S., as well as enjoying the quieter support of Europe;

<By adopting the apartheid paradigm as descriptive of the Palestinian situation it becomes possible to align civil society activism with international law, and even more important, encouraging the Palestinian national movement to concentrate its efforts on the one and only path that could produce an acceptable peace agreement. Any other approach seems doomed to some kind of appalling continuation of the present oppressive daily circumstances that has been fate of the Palestinian people for far too long. We should all reflect on the excruciating reality that this is the 50th anniversary of the Occupation and the 70th year in which Palestinians and their descendants have lived as refugees. No people should be compelled to endure such a fate.

 

 

Conclusion

 

It requires no great wisdom to observe that the future is a black box. We know that achieving peace and justice for these two peoples will require a lengthy struggle that needs to place its trust in ‘a politics of impossibility,’ or as the poet W.H. Auden once put it: “We who are about to die demand a miracle.” And while awaiting such a political miracle, we should accept our human responsibility to aid and abet the Palestinian struggle for rights, self-determination, and a just peace. The attainment of such goals would also inevitably reshape the destiny of Israeli Jews toward a more humanistic and benevolent future.

Nobel Peace Prize 2017: International Campaign to Abolish Nuclear Weapons (ICAN)

8 Oct

 

Finally, the committee in Oslo that picks a winner of the Nobel Peace Prize each year selected in 2017 an awardee that is a true embodiment of the intended legacy of Alfred Nobel when he established the prize more than a century ago. It is also a long overdue acknowledgement of the extraordinary dedication of anti-nuclear activists around the planet who for decades have done all in their power to rid the world of this infernal weaponry before it inflicts catastrophe upon all living beings even more unspeakable that what befell the cities of Hiroshima and Nagasaki on two infamous days in August 1945. Such a prize result was actually anticipated days before the announcement by Fredrik Heffermehl, a crusading Norwegian critic of past departures from Nobel’s vision by the prize committee. In making the prediction that the 2017 prize would be given in recognition of anti-nuclear activism Heffermehl prophetically relied on the outlook of the current chair of the Nobel selection committee, a distinguished Norwegian lawyer, Berit Reiss-Andersen, who has publicly affirmed her belief in the correlation between adherence to international law and world peace.

 

 

The recipient of the prize is ICAN, International Campaign to Abolish Nuclear Weapons, a coalition of more than 450 civil society groups around the world that is justly credited with spreading an awareness of the dire humanitarian impacts of nuclear weapons and of making the heroic effort to generate grassroots pressure sufficient to allow for the adoption of the UN Treaty on the Prohibition of Nuclear Weapons by 122 UN members on 7 July 2017 (known as the ‘BAN Treaty’). The treaty was officially signed by 53 governments of UN member states this September, and will come into force when 50 instruments of ratifications have been deposited at UN Headquarters, which suggests its legal status will soon be realized as signature is almost always followed by ratification.

 

The core provision of the BAN Treaty sets forth an unconditional legal prohibition of the weaponry that is notable for its comprehensiveness—the prohibition extends to “the developing, testing, producing, manufacturing, possessing, stockpiling and deploying nuclear weapons, transferring or receiving them from others, using or threatening to use them, or allowing any stationing or deployment of nuclear weapons on national territories of signatories, and assisting, encouraging, or inducing any of these prohibited acts.” Each signatory state is obligated to develop “legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress” activities prohibited by the treaty. It should be understood that the prohibition contributes to the further delegitimation of nuclear weapons, but it does nothing directly by way of disarmament.

The BAN Treaty no where claims to mandate disarmament except by an extension of the reasoning that if something is prohibited, then it should certainly not be possessed, and the conscientious move would be to seek a prudent way to get rid of the weaponry step by step. In this regard it is notable that none of the nuclear weapons states are expected to be parties to the BAN Treaty, and therefore are under no immediate legal obligation to respect the prohibition or implement its purpose by seeking a disarmament arrangement. A next step for the ICAN coalition might be to have the BAN prohibition declared by the UN General Assembly and other institutions around the world (from cities to the UN System) to be binding on all political actors (whether parties to the treaty or not), an expression of what international lawyers call ‘peremptory norms,’ those that are binding and authoritative without treaty membership and cannot be changed by the action of sovereign states.

 

Standing in opposition to the BAN Treaty are all of the present nuclear weapons states, led by the United States. Indeed, all five permanent members (P-5) of the UN Security Council and their allies refused to join in this legal prohibition of nuclear weapons, and to a disturbing degree, seem addicted sustainers of the war system in its most horrific dimensions. Their rationale for such a posture can be reduced to the proposition that deterrence is more congenial than disarmament. Yet the nuclearism is a deeply discrediting contention that the P-5 provide the foundations of responsible global leadership, and therefore have accorded favorable status.

 

What the BAN Treaty makes clear is the cleavage between those who want to get rid of the weaponry, and regard international law as a crucial step in this process, and those who prefer to take their chances by retaining and even further developing this omnicidal weaponry and then hoping for the best. Leaders like Donald Trump and Kim Jung-un make us aware of how irresponsible it is to hope to avoid the use of nuclear weapons over time when such unstable and impulsive individuals are only an arm’s reach away from decreeing a nuclear Armageddon. What the Cuban Missile Crisis of 1962 should have taught the world, but didn’t, is that even highly rational governments of the world’s most powerful states can come within a hair’s breath of launching a nuclear war merely to avoid an appearance of geopolitical weakness (the U.S. initial refusal to remove nuclear missiles deployed in Turkey even though they were already scheduled for removal because obsolete as it feared that such a step would be taken as a sign of weakness in its rivalry with the Soviet Union). Further, we know that it was only the unusual and unexpected willingness of an unheralded Soviet submarine officer to disobey a rogue order to fire off a nuclear missile that then saved the world from a terrifying chain of events.

 

The nuclear weapons states, governed by political realists, basically have no trust in law or morality when it comes to national security, but base their faith in the hyper-rationality of destructive military power, which in the nuclear age is expressed in the arcane idiom of deterrence, an idea more transparently known in the Cold War Era as Mutually Assured Destruction (or MAD!!). It is impossible to grasp the essential links between geopolitical ambition and security without understanding the complementary relationship of deterrence and the nonproliferation regime (its geopolitical implementation to avoid the disarmament obligation of Article VI).

 

In essence, the grandest Faustian Bargain of all times is contained within the confines of the Nonproliferation Regime, which is a geopolitical instrument of control by permanently dividing the world between those that have the bomb and decide who else should be allowed to develop the capability and those who are without the bomb but also without any way to secure a world in which no political actor possesses a nuclear weapons option. In a central respect, the issue between the militarized leadership of the nuclear weapons states and the peoples of the world is a question of trust—that is, a matter of geopolitics as practiced versus international law if reliably implemented.

 

Everything in the human domain is contingent, including even species survival. This makes it rational to be prudent, especially in relation to risks that have no upper limit, and could produce massive suffering and devastation far beyond tragedies of the past. Of course, there are also risks with a world legally committed to prohibit the possession, threat, and use of nuclear weapons, although if nuclear disarmament were to carry forward the overriding intent of the BAN Treaty, a disarming process would seek with the greatest possible diligence to minimize these risks. A world without nuclear weapons would almost certainly be a safer, saner, more humane world than the one we now inhabit.

 

Beyond that it would move national and international policy away from the gross immorality of a security system premised on mass destruction of civilian life along with assorted secondary effects of ‘nuclear famine’ caused by dense smoke blockage of the sun, potentially imperiling the wellbeing of all inhabitants of the planet. The dissemination of toxic radiation as far as winds will carry is an inevitable side effect with disastrous consequences even for future generations. Such an ecocidal gamble is not only a throw of the dice with respect to the human future but also in relation to the habitability of the planet by every living species. As such, it profiles an aggravated form of Crimes Against Nature, which while not codified, epitomize the peak of anthropogenic hubris.

 

It with these considerations in mind that one reads with consternation the cynical, flippant, and condescending response of The Economist: “This year’s Nobel peace prize rewards a nice but pointless idea.” Such a choice of words, ‘nice,’ ‘pointless’ tells it all. What is being expressed is the elite mainstream consensus that it is the height of futility to challenge conventional realist wisdom, that is, the Faustian Bargain mentioned earlier. The challenge is declared futile without even considering the dubious record of geopolitics over the centuries of war upon war, which in the process has deprived humanity of untold resources wasted on generations of deadly weaponry that have inflicted massive suffering and could have been put to many far better and necessary uses.

 

Of course, the BAN Treaty as an expression of faith in the path of international law and morality radically diverges conceptually and behaviorally from the political path of nuclearism, hard power, and political realism. It will require nothing less than a passionate and determined mobilization of peoples throughout the world to get rid of nuclear weapons, and its accompanying deep ideology of nuclearism. This is a far preferable alternative than passively waiting for the occurrence of a traumatizing sequence of events that so jolt political consciousness as to topple the power structures that now shape security policy throughout the world.

 

What the BAN Treaty achieves, and the Nobel Prize recognizes, is that the cleavage is now clear between international law and geopolitics with respect to nuclear weapons. The BAN Treaty provides likeminded governments and animated citizen pilgrim throughout the world with a roadmap for closing the gap from the side of law and morality. It will be an epic struggle, but now at least there are some reasons to be hopeful, which should itself strengthen the political will of the global community of anti-nuclear militants. It is helpful to appreciate that this BAN Treaty was achieved despite the strenuous opposition of the geopolitical forces that run the world order system. Just as Nehru read the outcome of the Russo-Japanese War of 1904-05 as a decisive sign that European colonialism was vulnerable to national resistance, despite military inferiority, so let us believe and act as if this occasion of the Nobel Peace Prize is another tipping point in the balance between morality/legality on one side and violent geopolitics on the other.

 

Visiting Nuremberg, Reflecting on the Ambiguous Legacies of Nuremberg

2 Oct

 

I spent two days at Nuremberg to attend the Nuremberg International Human Rights Award ceremony on September 22, 2017. The reason we were in Nuremberg was that my wife had been a member of an international jury that selects an awardee every second year. The recipient in 2017 was the ‘Caesar Group,’ the undercover work of an official Syrian police photographer, who had managed to smuggle out of Syria a hard drive with 28,000 photographs of 6,000 prisoners of Bashar al-Assad’s detention centers in Damascus. These extraordinary images of tortured and dead bodies were truly horrifying in ways that statistics or even first-hand stories told by victims and their families, rarely are. The name Caeser is a pseudonym for this brave Syrian photographer who is living incognito in Britain, understandably fearing for his life. The Nuremberg award honors not only Caesar, but those who helped in the complex work of archiving the photographs and doing whatever possible to disseminate them to the world. The Caeser Group also performed the grim task of giving several family members a morbid closure about the whereabouts of their loved ones who had disappeared without a trace into the dreaded Syrian prison archipelago, and were now identified as among the victims of the brutal Damascus regime.

 

At the very moving ceremony held in the grand Nuremberg Opera House some excellent orchestral music of a contemporary Syrian-American composer, Kareem Routom, and a powerful address by a French journalist, Garance Le Caisne, who accepted the award on Caeser’s behalf, expressing strong sentiments of admiration for his courage, the importance of such documentation, as well as reminding the audience that other political actors in the complex Syrian descent into Hell these past six years were also responsible for atrocities against the civilian population of Syria, although there seems to be agreement among specialists that the Assad regime is responsible for upwards of 90% of civilian casualties.

 

There were also well-crafted speeches by Kenneth Roth, head of Human Rights Watch, which had convincingly documented the authenticity of Caesar’s photographs, and Stephen Rapp, a former American ambassador, who had been a chief prosecutor at the international criminal trials held in the aftermath of the Rwanda genocide and at the Special Court constituted to address crimes committed in the Ivory Coast.

 

The speeches of Roth and Rapp focused on the desirability of bringing Bashar al-Assad to trial as a war criminal, and the formidable obstacles to doing so. This naturally led me to think about the legacy of the Nuremberg Trials held nearby in this city in 1945. The Nuremberg Judgment found all but three of the 22 Nazi leaders being prosecuted as guilty of war crimes, with twelve sentence to death, three to life imprisonment, four to long-term imprisonment, while three were actually acquitted. Ever since the Nuremberg trials and verdict have been memorialized as not only punishing those guilty of the most evil imaginable behavior but also for establishing the legal principle that those who act on behalf of a sovereign state, even at its highest levels of political leadership and military command, remain subject to accountability for severe violations of international criminal law. The overall significance of this experience was given an authoritative formulation in the Nuremberg Principles adopted by the UN General Assembly on the recommendation of the International Law Commission in 1947 [GA Res. 177(II)]. The trial was also praised at the time for providing the defendants with due process of law, which was reflected in the sentences that distinguished degrees of individual guilt and variations in the quality of incriminating evidence in the minds of the judges.

 

There was also a certain moral and political ambiguity that created dark clouds in the skies above the Nuremberg Proceedings in 1945 that most commentators at the time refrained from noticing lest the party be spoiled. The defendants were not allowed to excuse their actions or even make reference to war crimes of the victorious nations in the war, which engaged in a variety of tactics, especially strategic indiscriminate bombings intended to terrorize and demoralize the civilian populations of Germany. Such tactics cannot be reconciled with international law or international morality.

 

This impunity of the accusers became more difficult to obscure in the companion Tokyo War Crimes Trials held against surviving Japanese leaders, especially in view of the use of atomic bombs against Hiroshima and Nagasaki despite indications that Japan was at the time prepared negotiate terms of surrender similar to what was agreed upon following the atomic attacks. There is little doubt that if either the Germans or Japanese had used atomic bombs against Allied cities, and then later lost the war, such acts would have been criminalized in a confident and convincing manner. It not surprising that within Japan, in particular, critics described the war crimes trials as ‘victors’ justice.’ As well, there was a long dissent and finding of ‘not guilty’ by the Indian judge on the Tokyo War Crimes Tribunal stressing the inclusiveness of evidence charging the Japanese defendants with aggression (‘Crimes Against Peace’) in view of the pre-war policies of economic strangulation pursued by the United States. Unlike Nuremberg, the Tokyo tribunal included judges other than those drawn from the ranks of the four main victorious Allied powers in the European theater of combat. For many years it was almost impossible to find Judge Radhabinod Pal’s lengthy opinion in even the best American libraries. In Japan Pal is honored to this day, including a statue to his memory in the notorious Yasukuni Shrine honoring Japan’s war dead and serving recently as a rallying cry for the rebirth of a version of Japanese militarized nationalism.

 

There were several notable attempts to find a middle ground to address this moral and legal deficiency at the heart of what was achieved at Nuremberg. The chief American prosecutor at Nuremberg, Robert Jackson (previously a member of the U.S. Supreme Court) indicated in his historic closing statement that the validity of the Nuremberg results would be tested in the future by whether the countries that pass judgment against these Nazi defendants abide by the same framework of accountability relevant to their future behavior. The eminent German philosopher, Karl Jaspers, argued in a similar vein that the punishments inflicted on these German defendants will be regarded as justified if and only if those governments that imposed the punishments uphold similar standards with respect to the future behavior of their own political and military leaders.

 

We all should know that the loophole of victors’ justice has not been closed. Quite the contrary, the United States and Russia, the two main victors in World War II, have done their best to obstruct any development of international criminal law that might hamper their freedom of maneuver, and refused all efforts at accountability that might apply to their own leaders or those of their allies, while still self-righteously pressing the case for imposing criminal responsibility on adversaries.

 

Syria and the Nuremberg ceremony fit into this ambiguous legacy, suggesting the relevance of this concern. The Roth/Rapp speeches were exclusively directed at ‘the enemy,’ without even considering whether there should be criminal responsibility imposed on other actors, including the United States. It has always been the case that the Western liberal temperament, especially as orchestrated by Washington, pushes ahead with the implementation of international criminal law without ever compromising the geopolitical structure that imposes responsibility selectively while invoking the authority of law with great moral pretension. Such a dynamic confuses law with power, and somehow turns a blind eye to the uncomfortable realization that law is not fully law that treats equals unequally.

 

It can be argued that so long as the law is applied in accordance with due process against those that have committed severe crimes it is reasonable to claim that justice is being served. Surely, we should not shed tears for Bashar al-Assad should he ever be hauled into court to defend against his documented record of bloody atrocities committed over and over again against his own people. Not tears, but still concerns that such proceedings give the high moral and legal ground to the most dangerous and powerful political actors whose behavior remains outside the law. Besides the misleading jurisprudential character of geopolitically grounded impunity, there is the impression created that the West remains the guardian of civilized values although it has been more responsible during the last several centuries for far more massive human suffering than those being solemnly apprehended.

 

One final observation: this gap in the implementation of international criminal law has been challenged by civil society initiatives, starting with the Bertrand Russell Tribunal organized during the Vietnam War. This symbolic

contribution to the idea of international criminal responsibility has been carried forward over the years, above all, by the Permanent Peoples Tribunal established in 1976 under the inspirational leadership of the Italian jurist, Lelio Basso. A variety of independent initiatives along these lines have occurred over the years at times when neither governments nor the UN would respond to either war crimes or severe violations of human rights. As important as these events have been in keeping the flame of global justice burning, there is no capacity to make these judgments enforceable or otherwise challenge the discretionary prerogatives of geopolitical actors and repressive governmental regimes. The gap remains. The human costs remain.

 

In Nuremberg it is unavoidable to reflect upon the distinctive history of the city. This history weighs heavily not only on the minds of visitors but more tellingly on the city’s citizens in several notable respects. First, and above all, is the association of the city with the Nuremberg Rallies held each year on the vast parade grounds and surrounding park. Secondly, there are the notorious Nuremberg Laws that first formalized the anti-Semitic persecution directed at Jews. Thirdly, is the keen awareness, especially on the part of older residents, that 90% of the old city of Nuremberg was destroyed by the Allied bombing campaign. Thirdly, in the early years after 1945 there was a serious tension between those who wanted to forget the Nazi past of the city and those who insisted on remembrance, remorse, and the extensive documentation of the horrors. Fourthly, what prevailed in the end was the view that the symbolic role Nuremberg played in the rise and practice of Nazism and Hitler throughout Germany should be fully exhibited, but accompanied by the careful avoidance of any glorification of Nazi pageantry. For instance, the museum dedicated to the Nazi experience is called ‘a documentation center,’ and its architecture is intended to convey a sense of violation and menace. There is also a reluctance to show Leni Riefenstahl’s extraordinary propaganda film, “The Triumph of the Will” for an acknowledged fear that it might stimulate feelings of nostalgia rather than remorse. Finally, for those willing to probe a bit more deeply into the Nuremberg story in bygone centuries one encounters a disquieting series of pre-modern incidents of anti-Semitic persecution of Jews, common throughout Europe at the time, but still inevitably part of the history of this now vibrant and seemingly normal city.