Archive | July, 2018

How Might Robert Mueller Perform as Special Counsel on Trump Wrongdoing

22 Jul

 

 

[Prefatory Note: The following article was published in The Nation online website, July 13, 2018. It seems relevant as one perspective on how Robert Mueller as Special Counsel might perform in carrying out this historic role of examining the wrongdoing of a sitting president. It is strange that this quiet undergraduate student of more than five decades ago should now have the destiny of the American republic in the palms of his hands.]

I Was Robert Mueller’s Undergraduate Thesis Adviser—and What Gives Some Hints About What He’ll Do as Special Counsel

 

Not long ago a journalist approached me out of the blue to do an interview about my impressions of Robert Mueller. At first the name didn’t ring a bell; it never crossed my mind that he might be referring to theRobert Mueller. You can imagine my surprise when this same journalist told me not only that he was referring to the special counsel appointed to investigate wrongdoing during the Trump presidential campaign but that Mueller had been my thesis advisee at Princeton 52 years ago.

The now-eminent Mueller had indeed been my advisee, normally a rather close and somewhat collaborative relationship. The senior thesis is usually the crowning experience for Princeton undergraduates majoring in the social sciences. To have zero recollections of the man was surprising, especially as the subject of his thesis coincided with my central interests at the time.

 

His essay addressed a seemingly technical issue: the authority of the World Court to decide a case involving the extension of South African apartheid to South West Africa (Namibia). Mueller’s thesis was an unusually perceptive analysis of a controversial judicial decision by the International Court of Justice (ICJ), commonly known as the World Court. Mueller approached the law and its political context in a sophisticated manner that would have been impressive if done by a law-school graduate, let alone a college student who, as far as I know, had not yet opened a law book.

 

His long analytical essay addressed a seemingly technical issue: the authority of the ICJ to decide a case involving the extension of South African apartheid to South West Africa, a territory then administered by Pretoria. Germany had conquered South West Africa in 1884 and imposed colonial rule over the sparsely populated territory until Germany lost its colonies after World War I. The Treaty of Versailles established the territory as a Mandate, to be administered on behalf of the League of Nations by South Africa. (That arrangement was terminated in 1966 by the United Nations General Assembly, which had inherited the League of Nations supervisory role after World War II, but South Africa retained control of the territory until it was granted independence in 1990 as the sovereign state of Namibia.)Until the 1966 World Court case, South West Africa was primarily known for the extreme nature of German colonial rule under the personal authority of a close relative of Hermann Göring, regarded as an ugly and prophetic prelude of the Nazi era.

 

On rereading Mueller’s thesis, I found the international-law issues he discusses of considerable interest even now, five decades later, but far more relevant for the broader public is what Mueller’s thesis tells us about his approach to the interplay of law, politics, and morality in the apartheid context, when he was a college student.

 

I would not attempt such an assessment if I did not think the thesis contains some hints about his decision-making process as special counsel. This seems of some value, given the gravity of the current situation and the overall contempt displayed by President Trump for constraints of any kind, including those of law. Before his appointment as special counsel, Mueller was generally regarded as an admired civil servant, having effectively directed the FBI for 12 years. He is commonly described as “a lifelong Republican,” though he has also enjoyed exceptionally strong bipartisan respect. Until Trump and such media poodles as Sean Hannity came along, it would have been unthinkable that someone with such an honorable and distinguished public image would find himself under attack as biased or as leading a witch hunt, but so it goes in these dark times.

 

It is helpful to know a bit about the 1966 World Court case to evaluate the approach taken by Mueller and how it might shed light on the likely performance of his present undertaking. The academic-sounding title of the thesis is “Acceptance of Jurisdiction in the South West Africa Cases—Its Effect on the Development of the International Court of Justice.” It might seem like the sort of dry inquiry that only a few legal specialists would care enough about to pore over the elaborate pleadings and lengthy judicial decisions. In this sense the title gives a false impression. Mueller’s inquiry is really about whether an international tribunal can make a useful decision bearing on the lawfulness of South African apartheid. The specific issue facing the ICJ was whether under a Mandate agreement, Ethiopia and Liberia, as members of the United Nations, could bring a dispute for adjudication as to whether the extension of the South African apartheid regime to South West Africa was a violation of South Africa’s obligations as the Mandatory power. Those obligations required Pretoria to administer South West Africa in ways that protected the well-being of all of its inhabitants. (In the spirit of disclosure, I should mention that I became a member of the legal team representing Ethiopia and Liberia the year before Mueller wrote his thesis.)

Often, as in this instance, a case before the ICJ is divided into two separate proceedings. First is the so-called jurisdictional phase, a lengthy inquiry into whether the court possesses the proper authority to adjudicate the legal dispute. This was the focus of Mueller’s thesis. After that comes the merits phase, which only occurs if the ICJ concludes that it has the authority to decide, and issues a decision to this effect.

 

There was a four-year gap between the two decisions, with the jurisdictional decision reached in 1962 and the substantive decision in 1966. When Mueller wrote his thesis, the second—and very controversial—decision of the ICJ had not yet been issued, and its surprise outcome narrowly in favor of South Africa would have been entirely unanticipated by Mueller. In view of his treatment of the issues, it would probably have disappointed him, although he would likely have respected the legal reasoning that led to the perverse result of validating apartheid.

 

The jurisdictional issue addressed by Mueller was trickier, and more intriguing than might appear at first glance, and it divided the 15 judges on the court. It was tricky for two reasons. First, it pitted the views of a sovereign state, South Africa, against those of a divided international community on the highly inflamed question of the compatibility of apartheid with international law. Second, it raised the question of whether a decision that would likely be rejected by South Africa could be rendered in a manner that would be effective. It should be understood that a repudiated decision by a court lacking enforcement powers would weaken both international law and the ICJ as an institution, and could make countries more hesitant to submit their disputes in the future. Yet the opposite case was also persuasive: A decision holding South Africa responsible for violating its legal duties as Mandatory on human-rights grounds would be widely appreciated as a contribution to the development of international law and consistent with the ethical expectations of public opinion, while a decision refusing to condemn apartheid would produce a cynical reaction.

 

What makes the Mueller approach in his thesis relevant for today is that the core of his inquiry is how a judge should interpret a legal document, which raises the jurisprudential question of whether law can be understood apart from its sociological context. This remains a subject of debate among international-law experts, with Europeans usually taking the view that law should be interpreted as autonomously as possible, by reference to the language in the text and without regard to political or moral considerations, and by refusing to heed the fact that societal values change over time in ways that might help guide an interpretation of the law.

 

The American view, with many variations, is that the context is always relevant, as language is inherently ambiguous and reflects values and interests, and since those values and interests evolve over time, they should influence the dynamics of judicial interpretation.

Mueller, while adopting a dispassionate tone, sides with the American approach in his thesis, emphasizing that the purpose of a judicial decision is to be effective with respect to the issues at stake as well as to respect the intentions of parties to the extent that these are made clear in the documents under review.

 

At the same time, Mueller recognizes that the ICJ is entrusted with a distinctive mission, and this in the end seems to shape his evaluation of whether the court handled the case appropriately. Mueller describes his undertaking in the thesis as follows: “to show that, though the Court accepted jurisdiction in the face of many persuasive legal arguments backing the view that the case was outside the jurisdiction of the Court, nevertheless the decision was sound in regard to the role of the Court in the maintenance of international peace.” This phrasing is more awkward and convoluted than the careful reasoning and conceptual clarity of the thesis as a whole (for non-lawyers, it is important to appreciate that the term “jurisdiction” means “authority to decide”).

Mueller condemned the South African administration for having set aside “the [least] arable, the most desolate, and the most unproductive” land for “Natives and Coloreds.”

 

The jurisdictional issues are crucial in a case like this: Given the weight of international opinion against the practice of apartheid, it would appear that once the authority to decide is established, the outcome on the merits would follow as night follows day. In fact, in the most unpredictable development in the entire history of the ICJ, a deeply divided court ended up deciding in favor of South Africa. This decision on substance was so shocking to the international community that it generated a backlash at the UN that, ironically, turned out to be worse for South Africa than a defeat at the ICJ would have been. The UN General Assembly responded to the ICJ’s decision by voting overwhelmingly to terminate the Mandate, proposing political independence for South West Africa, leading eventually to the birth of the newly independent state of Namibia in 1990. (Mueller could not have been influenced by any of this, as it took place after the completion of his thesis.)

 

It is of particular relevance that the division in the court, in the jurisdictional phase, between those judges who wanted to accept the case and those who did not was elaborately argued in several learned opinions. Despite his antipathy to apartheid, Mueller clearly believed that the rejectionists had the better of the narrow legal arguments. Yet, as suggested, this did not resolve the issue for Mueller. He set forth an argument showing that South Africa had pursued an oppressive set of policies and practices that were imposed on the native population in draconian fashion. Pretoria had established a racial divide that created a color line “no less severe than the Iron Curtain.” Mueller condemned the South African administration for having set aside “the [least] arable, the most desolate, and the most unproductive” land for “Natives and Coloreds—45 years after the territory became ‘a sacred trust of civilization’” (the latter phrase is language in the agreement establishing the Mandate).

 

In this regard, South Africa acted unacceptably with respect to its duties as Mandatory, failing to report properly to the international community, as required, and adopting what Mueller calls “procrastination and delaying tactics” over a period of more than four decades. In contrast, Mueller notes, the League of Nations (and, after World War II, the UN) engaged in “patient waiting” for cooperation in fulfilling the purposes of the Mandate. As Mueller writes, “How long can she [South Africa] rely on her sovereignty as a sanctuary, within which she can negate the progress made in the rest of the world in ensuring the human rights of all peoples?” One factor that makes an examination of Mueller’s thesis of interest is that there is a certain institutional similarity between the ICJ case and his task as special counsel.

 

After a careful and intellectually sympathetic presentation of the conservative arguments against jurisdiction articulated in a dissenting opinion by two celebrated jurists, Mueller concludes that “the arguments against the acceptance of jurisdiction are more forceful in presentation than the arguments for acceptance of jurisdiction.” He goes on to say, “However, this does not mean that the arguments of the Court are unfounded on legal grounds.”

It is here that Mueller makes the rather subtle move of giving priority to the institutional mission of the ICJ to develop international law and contribute to world peace. In other words, Mueller considers the larger purposes of the law in this context to be the promotion of justice, respect for international law and human rights, and even the maintenance of peace.

Mueller proceeds thoughtfully to develop this rather nuanced view of the role of the ICJ. He is sensitive to the court’s need to manifest respect for the sovereign rights of states even as it serves these larger goals of peace and justice. He perceives this sort of jurisdictional decision as one way to balance sovereignty against upholding the interests of world order.

In the end, Mueller says that either way of deciding this jurisdictional question would be in accord with “acknowledged principles of international law.” He makes clear that the ICJ setting makes it inevitable that judges exercise greater discretion than in domestic law contexts.

There are fewer precedents to guide interpretation, and no international legislature exists, giving the ICJ the task of promoting the development of international law. After exploring the wider issues raised, Mueller reaches his conclusion: “In sum, on the basis of what is known of the case at the present moment, the decision [to accept jurisdiction] was a positive contribution…to the ultimate goal of a world peace founded upon a rule of law.”

Against this background, what can we say about Mueller’s approach to the controversial interface of law and policy in the context of his role as special counsel? One factor that makes an examination of Mueller’s thesis of interest is that there is a certain institutional similarity between the ICJ case and his task as special counsel. Both institutional procedures are rather obscure to the public, including the media, and can be seen as operating free from any overriding set of traditions and precedents. In both cases, there are no clear boundaries specifying proper action in situations that have a high political profile. As with the ICJ, the special counsel enjoys a rather wide orbit of discretion, which of course is part of what worries the White House and invites controversy. We only have to recall how a recent special counsel, Kenneth Starr, pilloried President Bill Clinton to realize how treacherous this terrain can be.

 

The most striking feature of Mueller’s thesis, aside from his impressive treatment of technical legal issues, is his determined effort to explain in a fair-minded manner reasonable differences of legal opinion. What is most significant is his accompanying view that there may be instances, such as in the ICJ case, where opposing views are both based on sound legal reasoning, producing a situation in which there is no way to distinguish legal right and wrong on the merits, thus making non-legal factors such as human rights, peace, and justice potentially decisive.

 

Yet that wider context is also one of conflicting concerns, since the court must show proper respect for sovereign rights, avoid the issuance of ineffective decisions, and not be seen as engaging in judicial legislation. Mueller impressively depicts this delicate balance.

It seems responsible to generalize from this understanding that Mueller will make an exhaustive effort as special counsel to gather the evidence and consider the best arguments on all sides of the issues under investigation as impartially as humanly possible. If the facts and law in the Trump inquiry lead to the sort of legal ambiguity that confronted the ICJ, then Mueller would likely feel obliged to consider the effects of any action on the legitimacy of constitutional democracy, including how it affects the confidence of the citizenry in the integrity of the rule of law.

 

In a sense, those who fear the damage done by Trump’s presidency to American institutions can only hope that Mueller as special counsel will exhibit the same kind of priorities as Mueller did when he was a Princeton senior. The early Mueller sided with the ICJ majority in its view that the human rights at stake were more important than deference to the technical virtuosity of the judges who favored turning their back on the victims of South African apartheid.

 

We do not know at this point where the evidence leads with respect to the extensive investigations of the special counsel, but if it gives responsible grounds for initiatives strengthening American political democracy at this critical time, one can only hope that Mueller will seize the occasion. One thing is almost certain to be present if he does proceed in this more activist manner: The case will be put forward dispassionately, but with due respect for the evidence and for the sanctity of constitutional rights and procedures, including deep respect for the office of the presidency.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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A Reflection on the June 24th Turkish Elections (modified and corrected)

18 Jul

[Prefatory Note: This is slightly modified text of an earlier post that seeks to takeaccount of responses from friends, and gave me the opportunity to express these somewhat contrarian views in a clearer way, as well as correct some mistakes. This version will also be published by Sharq Forum in Turkey.]

 

A Reflection on the June 24th Turkish Elections

 

In the days before the Turkish elections there were evident clashing fears and hopes mixed with predictions that mirrored these passions, and anticipated some kind of upset of the Erdoğan game plan for the future of the country. The long simmering intense hostility to Recep Tayyip Erdoğan seemed to have finally found its political voice in the person of a former high school physics teacher, Muharram Ince, the CHP candidate with his own gift of inspirational political oratory that created a feverish enthusiasm at his pre-election rallies, and there were reasons to believe and hope that Turskish citizenry was ready for a change after 16 years of AKP governance.

 

The Turkish economy was believed to be in terrible shape as signaled by the international fall of the lira, the pre-election spike in the cost of staple foods, high unemployment, and a dangerous shortfall in foreign capital needed to neutralize the effects of balance of payments deficits on high interest rates that make borrowing money very expensive. Beyond this there seemed to be present a prevalent a kind of political fatigue, a feeling even among former supporters that this controversial leader had held the reins of power far too long for the good of the country, that he badly damaged the international reputations of Turkey by over-reacting to the failed coup of 2016, that he was weakening the secular ethos of the Ataturk legacy while shifting power, influence, and wealth to emergent business elites spread around Anatolia and among the friends of the AKP, that he was inflicting an expensive gigantism on the country in the form of a presidential palace, world’s largest airport, proposed Istanbul Canal, giant mosques, a third bridge over the Bosporus, a generalized urban blight. Additionally, Turkey’s military campaigns in Syria and Iraq were responsible for a dangerous nationalist fervor as well as exhibiting hostility to legitimate Kurdish grievances and aspirations, as well as being a major cause of the massive refugee influx of recent years.

 

To evaluate this intensely negative portrayal of Turkey as it has played out in Europe and North America it is essential to take account of the concerted and powerful anti-Turkish international campaign that depicts Turkey as in the grip of evil political forces that made it the most illiberal of democracies led by a brutal and unscrupulous autocrat, making it a totally unsuitable and unreliable NATO ally that even dares to flaunt U.S. alliance leadership. This campaign, not ever acknowledged as such, brought together the Fetullah Gũlen network, anti-AKP think tank Kemalists spread around the West, secular leftists united with militant Kurdish activism, an Armenian movement seeking validation from the present Turkish government for its genocidal victimization of over a century ago, and influential Zionist elements disseminating to its influential supporters a steady stream of anti-Turkish propaganda as evident in the material on the websites of such well-funded U.S. NGOs as the Middle East Forum and Gatestone Institute, featuring such notorious personalities as Daniel Pipes and Alan Dershowitz.

 

This anti-Turkish campaign has been effective in (mis)shaping the outlook of international public opinion and of the liberal governments of the West.  It expressed itself most dramatically, and for Turks unmistakenably, when adopting a wait and see approach to the failed coup in 2016, disclosing a thinly disguised wish in the West for regime change in Ankara that disturbed many knowledgeable people in Turkey, including many in the political opposition.  It also continues to give the most negative interpretation to the Turkish response to this violent challenge, even ignoring the evidence by discounting the attribution of responsibility to the Fetullah Gũlen movement, by referring to its role as perpetrator only as ‘alleged.’ More seriously, while unreservedly condemning the post-coup roundup of Turks, including many journalists and academics, it never mentions the degree to which the Fetuallah Gũlen movement operates by stealth, and had for years deeply penetrated all public institutions of Turkish society with its devoted cultic followers, including the military, security, and intelligence sectors. These realities in Turkey are usually conceded by even the most ardent of Erdoğan’s domestic adversaries, but are never mentioned in the international discourse, even in such venerable organs of opinion in the West as the New York Times, The Economist, and BBC.

 

I share the critical view that the Turkish government used the pretext of security to go after a variety of enemies that had little or nothing to do with the coup attempt, but I also acknowledge that almost any government would respond strongly, and from its standpoint, rationally, if faced with a penetrating adversary that operates secretly and showed a willingness to stage a bloody coup to gain its ends of seizing power and taking over the Turkish state. I am old enough to remember the Cold War atmosphere in 1950s United States that obsessed about the alleged Communist tendency ‘to bore from within,’ leading to McCarthyism, a farreaching witch hunt that discredited and severely harmed many innocent and decent persons, weakening the morale and security of the country. I can only imagine the excessive kind of protective measures that the U.S. Government would have taken in that period if the Communist movement had actually tried to take over state power by recourse to a violent coup scenario, especially if perceived as working in tandem with the Soviet government. This refusal of international observers to contextualize the security challenges facing post-coup Turkey is an unmistakable display of an intense anti-Erdoğan bias that distorts perceptions and exaggerates criticisms.

 

It is in this highly charged atmosphere that the people I know best in Turkey by and large approached the recent elections. There was a mood among many secular opponents of Erdoğan that his game was about to come to a welcomed end, and this view included some highly regarded early high profile advisors and officials who had earlier worked on behalf of the AKP, and its charismatic leader. This mood translated into a consensus prediction that the alliance of parties would get enough votes to prevent Erdoğan from receiving the 50%+ votes he needed on June 24thto receive the mandate in the first round of voting to become the president charged with managing the constitutional shift from a parliamentary system to what Erdoğan himself was calling ‘an executive presidency.’ This rejection by more than half of Turkish voters would have meant a second round of voting between Erdoğan and whoever came in second, presumably Ince, to determine who would be the next president of Turkey. The expectation was that if Erdoğan didn’t win a majority in the first round, then he provided a fairly easy target in the runoff election as the opposition parties had agreed in advance to unite if such an eventuality came to pass. If this had happened, the parliamentary system would likely have been restored and retained, and the executive presidency would never become a reality.

 

The second fervent hope of the opposition was that the AKP would go down with their master, undoubtedly winning more seats than any other party, but still falling short of what would be needed to exercise majority control in the Turkish Parliament. It was anticipated that this outcome would be desirable even if Erdoğan were to be elected president as it would greatly diminish his ability to dictate legislative outcomes to Parliament. The more respected public opinion polls also gave credence to these expectations, although there was disagreement about whether Erdoğan might squeak by in the presidential vote either immediately or in the second round of voting, there was a fairly high level of agreement that the AKP, despite its alliance with the far-right MHP, would still not have a governing majority, and hence would be unable to get its way on key issues, including the constitutional revision.

 

The first question the morning after is what went wrong with these expectations. My initial attempt at an answer harkens back to my presence in Cairo shortly after the fall of Mubarak in early 2011. For various reasons I had wide contact with a range of influential persons in Cairo almost all of whom were affiliated with the secularized upper middle class. These folks, while offering a variety of analyses of the Egyptian political scene, shared a hope that in the post-Mubarak circumstance an inclusive democracy would become possible and desirable, and this was mainly understood to mean at the time a willingness to encourage the inclusion of the Muslim Brotherhood as a minority presence in the Egyptian Parliament. It was also coupled with the expectation of electing one of their own, Amr Moussa, former Foreign Minister and Secretary General of the Arab League, as the next president when elections were scheduled to occur in 2012. Egypt had a runoff arrangement similar to the one in Turkey, but Moussa never made it to the second round, having won only 12% of the vote, and the Muslim Brotherhood shocked the secular elites by achieving a political majority, initiating a sequence of events that pushed the country back to renewed secular authoritarianism in a harsher form than what was experienced for 30 years under Mubarak.

 

This underestimation of the grassroots strength of the MB illustrated for me the political myopia that often misleads modernized elites living in a dominant city in their country to believe that the future will unfold as they and their friends hope. I have dubbed this tendency ‘the Cairo Syndrome,’ and although less pronounced in these 2018 Turkish elections than it had been in Egypt, it certainly played its part in aligning advance expectations with wishes. In case my assessment is read as exhibiting Orientalist sympathies I can report the same phenomenon was operative in the U.S, just prior to the 2016 presidential elections when Trump’s victory shocked and brought intense grief to almost all the people in my social circle, as well as shame to the most sophisticated national pundits who earn their living by predicting political outcomes, often relying on abstruse algorithms to wow the public, and then shamelessly, without admitting their mistaken assessment, pronouncing after the fact why what happened was bound to happen.

 

The more illuminating concern is why with all that seemed to work against Erdoğan, he not only won but ran more than 12 percentage points ahead of the AKP, suggesting the persistence of his personal popularity as compared with the weakening of support for his political party. In fact, Erdoğan did not lose any individual support if this election is compared to the prior 12 elections where he had also always prevailed to varying degrees. Part of the explanation is the depth and passion of his base among the poor and pious, and those resident in the non-Kurdish parts of Eastern Turkey or in the interior of the country. The only places where Erdoğan and the AKP finished a distant second was along the Western coastal fringe of the country, including the lead city of Izmir. Despite the inspirational nationalism and modernizing agenda of Ataturk, and his still robust legacy (his picture is still by far the most imposing and common presence in offices, public buildings, and middle class homes), Turkey was and remains culturally very rooted in Islamic cultural and religious traditions in ways that give Erdoğan an authentic aura as the supreme representative of Turkishness that transcends the whys and wherefores of political debate.

 

And then there is the phenomenon of national pride, just as Erdoğan stood up so triumphantly against those who staged the coup, he has stood tall against the world, including the United States and Europe. He has brought much progress in the social and economic spheres to the poor and materially disadvantaged, and helped give Turkey a strong regional and global role that it had never achieved previously in the republican era when its leaders seemed content with their role as a passive junior partner of the West, and in recent decades of the NATO configuration. In a turbulent region and world, Turkey has made some substantial contributions to global public goods that are rarely mentioned: the civilianization of governance overcoming a deeply embedded military tutelage emanating from the Ataturk approach; an extraordinary refugee policy that has settled 4 million Syrians and Iraqis fleeing their countries (far more than all of Europe combined, which has regressively responded to its much smaller numbers by giving rise to a resurgence of the pre-fascist extreme right); humanitarian missions to Somalia, Rohingya, and elsewhere that have brought needed world attention to distressed and victimized people otherwise neglected; a high ranking among countries with respect to per capita expenditures for humanitarian assistance; a serious challenge to the geopolitical manipulation of the UN at the Security Council under the slogan ‘the world is greater than five’ frequently repeated by Erdoğan

 

On balance are the election results good for Turkey? It is not an easy question to answer, and a meaningful appraisal must await indications of how the newly constituted presidential system operates and whether the economic challenges can be effectively addressed. It is not encouraging that governing and legislating seem dependent on agreement with the MHP, an ultra-nationalist political formation, hostile to Kurdish aspirations, and militaristic. Also, Turkey faces an array of difficult internal and international problems, especially serious inflation and a weakened international currency, as well as a disturbing dependency on agricultural imports. These problems seem to have no short-term fix, and would likely magnify societal tensions if an IMF or EU type of austerity regime were to be instituted, or if ignored by a head-in-the-sand posture. Alternative electoral outcomes would also not have generated quick solutions, except that the well funded anti-Turkish international campaign might have celebrated and solidified results more to its liking  by pouring capital into the country to meet the deficit, to build confidence in a new compliant political order, and to fight inflation and capital flight, and such steps would probably have quickly produced a stronger lira, at least temporarily.

 

What Turkey does have now, which it has failed to do during the prior AKP years is to develop a responsible opposition that puts forth alternative policy proposals. Muharram Ince, the forceful presidential candidate of the CHP opposition who by his showing in the election, running seven points ahead of his party, seems to have the leadership capacity and approach needed to create an atmosphere in Tuirkey that is more conducive to the sort of political debate and policy friction that makes constitutional democracy perform at its best. Ince, like Erdoğan, relies on populist and colorful rhetorical language that matches Erdoğan’s own crowd mobilizing style that may have the effect of creating more democratically oriented negotiations and collaborative solutions within government, especially with respect to the altered parliamentary role, in response to national policy challenges.

 

In this world of ‘elected dictators’ let us not demean the impressive democratic achievement of these Turkish elections that belie the irresponsible mutterings of those most disappointed who irresponsibly contend that the outcome was rigged. Surely, a political personality as accomplished as Erdoğan, if exercising the sort of dictatorial powers that his detractors claim, could have done a better job if these accusations were grounded in fact—rigged elections can be usually identified by huge margins of victory, by excluding unwanted parties from qualifying for participation, and by giving the anointed leader the kind of control in the legislative branch that would smooth the work of rulership. The Turkish elections delivered none of these results that are associated with dictatorial rule, voting proceeded without violence, and the polling places were internationally observed and without any notable irregularities reported—the margin of Erdoğan‘s victory was less than 3%, the Kurdish HDP received 11% of the vote allowing it to cross the 10% threshold that not only meant parliamentary participation but denied the AKP its much desired majority, and the AKP ran significantly behind Erdoğan suggesting a pattern of split voting and a lack of the sort of party discipline that is an unmistakable feature of a true autocracy. Closely contested elections of this sort only occur in societies where proceduraldemocracy associated with the primacy of elections is allowed to function even if flawed in various ways , often giving wealthy donors disproportionate and anti-democratic influence. Of course, Erdoğan had the benefits of long-term incumbency, as well as the fruits of his strenuous efforts to tame hostile media, and this unquestionably tilts the process to an uncertain degree, but is a general feature of party-driven politics in the contemporary world and is rarely allowed on its own to cast doubt on the legitimacy of electoral results.

 

Even if these flaws are corrected, or at least mitigated, procedural democracy is not enough, and one hopes that Erdoğan will use his newly acquired powers over judicial and other governmental appointments wisely. More deeply, we can hope that Erdoğan has learned from the Gezi Park experience of 2013 that a majoritarianapproach to governance breeds intense internal conflict and embittered forms of polarization that interfere with the pursuit of his signature goals of economic growth, enhanced regional and international stature, and the growing cultural appreciation of Muslim values and traditions.

 

At this moment, in the immediate afterglow of electoral victory, Erdoğan does seem to be adopting a more inclusive language, speaking of his commitment to the unity of the nation, a theme echoed in the gracious concession comments of Ince who unconditionally accepted the validity of the electoral results putting an end to anti- Erdoğan extremists irresponsibly ready to challenge the results, and pleaded only that the elected leadership now take account of the whole Turkish population of 80 million in the conduct of governance, and not only of those supporting the Erdoğan approach.  If Erdoğan wants to start this new phase of Turkish constitutionalism on a positive note he could not do better than extending an olive branch to imprisoned academics, journalists, and human rights activists through the exercise of his power to pardon, especially as a welcome complement to the declaration that the state of emergency will not be further renewed, an encouraging move, especially as reported opposed by AKP’s alliance partner, the MHP. If the new system moves quickly and effectively to restore international and national confidence in the Turkish economy, prospects are good for political stability and a more robust democratic atmosphere in the country.

 

 

 

 

 

 

 

 

 

 

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SUPPORT GAZA FREEDOM FLOTILLA: SWEE ANG and MAZIN QUMSIYEH

14 Jul

[Prefatory Note: These two statements about the al-Awda Freedom Flotilla en route to Gaza are contributions from two heroic figures in the long Palestinians struggle, hopefully known to many of the readers of this blog. This flotilla is on  a humanitarian mission, carrying much needed medical supplies and is again dramatizing the plight of the population of Gaza, unendurable victim of vindictive Israeli measures that amount to flagrant and deliberate violations of Article 33 of the Fourth Geneva Convention prohibiting and criminalizing measures of collective punishment inflicted upon the population of a society subject to belligerent occupation. Israel claims that it is no longer bound by the Geneva Convention because of its ‘disengagment’ in 2005, but the international consensus is otherwise. Gaza continues to be ‘occupied’ from the perspective of international law and the UN, and has been subject to a harsh blockade, periodic massive military attacks, and virtual closure for the past ten years. These statements below are not only informational, but also calls for solidarity and action. I am proud of my friendship and camaraderie with Swee Ang and Mazin Qumsiyeh. In view of past Israeli violent obstruction of humanitarian initiatives designed to lessen the suffering of the Gaza population solidarity with this initiative, as suggested below, is indispensable.][I have added a further message from Swee Ang worth reading.]

GAZA FREEDOM FLOTILLA: SWEE ANG & MAZIN QUMSIYEH

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(1) Dear Friends and Family,

 

I am due to join the al-Awda (The Return) Freedom Flotilla to Gaza this weekend on its last leg from Europe to Gaza. She has started her journey from Norway on the 70 Anniversary of the Palestinian Nakba and this journey is highly symbolic. The Nakba is the Arabic word for Catastrophe which started in 1948 when 50% of the population of Palestine was driven out to live in refugee camps and Palestine was erased from the map of the world. Please look at the links about the Awda and the other Freedom Flotilla ships she is joining.

 

https://sgf.freedomflotilla.org/news/al-awda-freedom-flotilla

 

https://jfp.freedomflotilla.org/

 

 

I am highly honoured to be invited on board. It is important to explain to you why I chose to do this. Among the queries I received is why I have overstepped my role as a doctor to do this. Can I not spend my vacation leave from the NHS on a holiday cruise instead of an old overcrowded fishing boat? My answer is simple. The situation in Gaza is dire. Our articles both published in the British Medical Journal, describe a bit of it;

https://www.bmj.com/content/349/bmj.g6644/rr

https://www.bmj.com/content/349/bmj.g6644/rr-0

 

A doctor, a surgeon is a human being with a conscience and a compassionate heart, much more than just a skilled technician. The very fact that I can do operations and fix broken bones will not stop me from losing my humanity. A robot might turn the other way, but a child of God does not.

 

Most of you know that I am going to be seventy come the end of the year and I would like to make this my birthday present to the people of Gaza and Palestine. Please read my statement below which will soon be included in the Freedom Flotilla website. You will know from what I wrote that even if Awda is kidnapped and all of us are put in prison, it is not a failed mission. The Palestinians will know that we have not forgotten them, and that we, like them, live out our lives with hope and love with faithfulness.

 

Statement of Dr. Swee Ang:

 

“When invited to come on board Al-Awda, the Freedom Flotilla to Gaza, I know I must join them. This summer marks the thirty-sixth year of my journey with the Palestinians. It began in 1982 when as an ignorant Pro-Israel Christian doctor I first stepped foot as a volunteer surgeon in Gaza Hospital in Beirut’s Sabra Shatilla Palestinian refugee camp. There I fell in love passionately with a generous, kind, honest and gentle people – the Palestinians. They were forced out of Palestine in 1948, and found themselves refugees. Despite the dispossession, persecution and injustice they remained human. About 3 weeks after my arrival, more than three thousand of them were cruelly massacred. My heart was broken and trampled on, and would have remained dead and buried in the rubble of their bulldozed homes. But the survivors even while burying their own loved ones nurtured me back to life with their tears and love. The children filled with courage, hope and dignity inspired me and gave me strength to walk on with them. “We are not afraid Doctora come with us”. It is now 70 years since the Palestinian Nakba and Diaspora in 1948. When will their journey home begin? Today, six million Palestinians dispersed in various refugee camps are denied the right of return to their ancestral Palestine; the other six million lived under occupation in Gaza and West Bank.  For twelve years, two million Palestinians have been imprisoned under a brutal land and sea military blockade in Gaza. During this time there were three major military assaults where Gaza was relentlessly bombed for weeks. Recently, since 30 March 2018, unarmed Gaza demonstrators calling for the Right of Return are shot at with high grade military assault rifles leaving more than 124 dead and 13,000 severely wounded with hundreds of amputees and potential amputees. The Flotilla brings hope to the besieged Palestinians. They are praying for us in their mosques and churches in the Gaza Strip. They know we are making this journey for them. Even if we are to be abducted, imprisoned and deported, may we remain faithful in solidarity and love for the people of Palestine and Gaza.

 

Dr Swee Ang, Consultant Orthopaedic Surgeon; author From Beirut to Jerusalem.

July 2018″

 

Please remember Palestine and the people of Gaza, and all on board the Freedom Flotilla Coalition.

 

Love you all and God bless

Swee

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

Dearest Heaher and Friends,
Thank you for everything and sharing what you wrote and what you are doing.  I am with you and will share as much as I can with people from the flotilla. My prayers and best wishes for tomorrow’s trial. 
They have wounded 300, killed 4 yesterdayin Gaza on Friday. Two of the children killed were playing in their parents garden and not even at the demonstration. There was a brief news statement from the occupying army – I can’t trace the source now that the military announced that they will abduct the Awda and sell her and donate the money to some charity for Israeli soldiers! That is to show who is boss and nobody will dare mount anymore flotilla!
They have also halved the food supply allowed into Gaza (OCHA report).  The night watch on Awda has received desperate calls for life-saving intravenous antibiotics. Last minute I am only able to secure a handful to take on board, but not sure whether it is going to be allowed into Gaza or not.
I know it is beyond your control, but I need to hear good news from you about your court case tomorrow as we seem to be embarking on a mission of high risk physically but high morale spiritually. Will be off to church to pray for you, the people of Gaza and the flotilla, and off to the airport. Once we leave for Gaza I will have no assess to emails and whatsapp, but please leave a message on the participants website about your news and I will get your messages.
Trust me – the people who are destroying our earth for gains are also the ones who invent and use the arms to murder and destroy Palestinians, the people of the Middle East, and the rest of the world. They are wreaking havoc. Why this evil and greed? It is such a beautiful world God has given us , but to share and to love. Not to appropriate and destroy.
Fight the good fight Heather and always remember you not only have us with you but also God for the earth belongs also to God. People in Gaza are prepared to die standing, and live on their knees, and will not die in silence their courage will be our inspiration.
With much love
Swee
**********************************************************************************************************************************************

 

(2) Mazin Qumsiyeh [mazin@qumsiyeh.org]

Human Rights Newsletter ‎[humanrights@lists.qumsiyeh.org]‎

 

Saturday, July 14, 2018 7:02 AM

 

Five times boats have successfully reached Gaza. it can be done with this

flotilla of four boats bringing medical supplies and hope but we need your

help:

 

  1. Share our messages and encourage your contacts to share them using

hashtags #ShiptoGaza #FreedomFlotilla #CountdownToGaza; share e.g. videos like this short 30 seconds video https://youtu.be/Nau5CPo9feo

using those same tags.

  1. Reach your local media with news links from our website

https://jfp.freedomflotilla.org/, our participants and events and insist

they cover the events

  1. Contact elected officials and ask that they contact Israeli officials to

demand they let the ships through [your local or national campaing

  1. Follow us on Facebook (https://www.facebook.com/FreedomFlotillaCoalition/

), Twitter @GazaFFlotilla and Instagram @gazafreedomflotilla/ and encourage

others to spread the word. Follow our boats’ progress at

https://jfp.freedomflotilla.org/follow-the-mission

  1. Hold an activity or event on or around July 21 (first Saturday after we

sail from Palermo) and/or July 28 (second Saturday, close to our estimated

arrival in Gaza or possible interference by Israeli forces) to demand that

our boats be let through and that the blockade be ended, permanently.

  1. Donate through on of our FFC campaigns:

https://jfp.freedomflotilla.org/donate

 

For activism methods/suggestion, see http://qumsiyeh.org/activistmanual/

and http://qumsiyeh.org/whatyoucando/

 

Earlier this year, the ideas of a very clever young lady in Gaza attracted

attention

https://wearenotnumbers.org/home/Story/One_woman_tackles_two_Gaza_challenges_electricity_construction

Now, Majd and 3 other young people have started a crowdfunding project for

the Sunbox : https://www.launchgood.com/project/bringing_light_to_gaza_1#!/

blog about life in Gaza in French http://carol.blog.tdg.ch/

 

Ireland to be the world’s first country to divest public money from fossil

fuels

http://www.thejournal.ie/fossil-fuel-divestment-bill-4124211-Jul2018/

 

Take action to thank Irish politicians who supported the Occupied

Territories Bill (first time European country boycotts settlement goods)

http://www.ipsc.ie/action-item/take-action-to-thank-politicians-supporting-the-occupied-territories-bill

 

Stay human

 

Mazin Qumsiyeh

A bedouin in cyberspace, a villager at home

Professor,  Founder, and (volunteer) Director

Palestine Museum of Natural History

Palestine Institute of Biodiversity and Sustainability

Bethlehem University

Occupied Palestine

http://qumsiyeh.org

 

Are the 13 Demands to Qatar a ‘Geopolitical Crime’?

11 Jul

[Prefatory Note: the following post is part of an ongoing project assessing the international relations and international law Gulf Crisis that was initiated by a coalition of four countries, issuing a set of 13 demands directed at the government of Qatar. Qatar rejected the demands as contrary to its sovereign rights and international law, and at the same time offered to mediate the dispute. The Gulf Coalition rejected the approach, insisting on Qatar’s compliance, and causing harm to the state of Qatar and those resident in the country by blocking access and abruptly cutting relations. The essay below evaluates this experience from the perspective of whether the confrontation should be treated as a ‘Geopolitical Crime,” itself an innovative and controversial idea that I developed in a lecture at Queen Mary’s University in London at the end of March, 2018.]

 

Confronting Qatar: Gulf Crisis or Geopolitical Crime? Evaluating an Innovative Approach to Confrontational Diplomacy

 

Points of Departure

 

The general designation of the year long confrontation between the Gulf Coalition (Saudi Arabia, UAE, Bahrain, and Egypt) and Qatar has been one-sided from its inception. A series of demands were directed at Qatar in the form of an ultimatum. The demands were unreasonable, challenging Qatar’s sovereign rights, and violating the most fundamental precepts of international law. [For detailed demonstration see Falk, “A Normative Evaluation of the Gulf Crisis,” Policy Brief #1, Feb. 2018] The Gulf Coalition refused Qatar’s repeated formal expressions of a willingness to accept a negotiated or a mediated end of the confrontation. Such willingness was particularly forthcoming as Qatar was the wrongfully harmed party due to the policies put into operation by the Gulf Coalition to reinforce its demands with punitive acts. By way of contrast the Gulf Coalition has so far defiantly refused even to consider a diplomatic resolution of the crisis, pushing its agenda by issuing threats and warnings.

 

For these reasons it has been deeply misleading to refer to the inflamed situation involving Qatar as a crisis, which in international relations is a normatively neutral term, referring to a set of circumstances that involves a dangerous and unresolved encounter between adversaries. It is the argument of this policy brief that a more accurate way of grasping the true character of the situation, given the unprovoked wrongfulness and one-sidedness of this confrontation, as well as the disparities in size and power is to treat the confrontation under the rubric of ‘Geopolitical Crime.’

 

The question posed from this perspective is to consider whether the Gulf Coalition should be viewed as responsible for committing an a serious and ongoing Geopolitical Crime, the victims of which are the State of Qatar, and its people, as well third parties and foreign nationals hurt by the blockade and other coercive measures adopted by the Gulf Coalition. To inquire from this perspective first requires clarification as to the nature and status of what is here being called a Geopolitical Crime.

 

The allegations of Geopolitical Crime is certainly not intended to contradict or displace the assertion that Qatar has also been harmed by violations of public international law as a result of Gulf Coalition threats and acts. The reasons to bring up claims of Geopolitical Criminality is to emphasize the possibility of an appropriate informal and more flexible approach to the allocation of responsibility for harm caused and hopefully add diplomatic weight to efforts to end the confrontation and restore normalcy to the sub-regional politics of the Gulf. Alleging a Geopolitical Crime has no implications for waiving or overlooking recourse to several overlapping remedies under international law. [To be discussed in subsequent policy brief]

 

It should also be realized that even without claiming any status of Geopolitical Crime within international criminal law, the nature of the ‘crime’ is controversial, and needs to be appreciated as a proposed innovation with respect to diplomacy and international ethics. Yet it appears to be beneficial step toward creating greater compliance by dominant global and regional actors with widely accepted international norms, as well as mounting a challenge to current patterns of impunity

with respect to the crimes of such actors. As matters now stand, geopolitical actors

form part of the vertical structure of existing world order, which effectively exempts these actors from any obligation to conform to international law whenever its rules collide with the pursuit of their national interests and strategic priorities. In this respect, this kind of deference to power has the effect of making international law a weapon of the strong against the weak. It thus parallels the Un Charter that grants a right of veto to the five Permanent Members of the Security Council, which amounts to telling these five countries that for them adherence to the Un Charter is essentially voluntarywhile for the other 188 or so sovereign states adherence is mandatory. As was said of the Un when established, it is an institution designed to regulate the mice while the lions roam free.

 

In effect, the assertion of Geopolitical Crime offers a modest means for potentially extending the reach of international law to regulate the behavior of the lions, modifying the normative structures that have so far only been effective in keeping weaker states, the mice, either submissive or discouraged from engaging in disruptive behavior. Geopolitics is the vertical dimension of world order, while the relations of ordinary states is the horizontal dimension, subject to the norm of juridical equality, which ignores the relevance of political inequality, subverting law by treating equals unequally. In the current impasse Qatar is denied the protection of its fundamental rights because the Gulf Coalition is taking advantage of its sub-regional geopolitical status to engage in coercive diplomacy while avoiding legal accountability.

 

Yet the proposal to supplement international criminal law by recognizing Geopolitical Crimes is about more than giving Qatar an additional line of political and moral argument by which to vindicate their specific grievances arising from the pressures exerted by the Gulf Coalition. It is a wider response to the realization that throughout history much human suffering, devastating warfare, economic exploitation, social collapse, and political abuse have resulted directly or indirectly from the commission of Geopolitical Crimes, which have not been acknowledged, much less prevented and apprehended. The position taken here is that the delimitation of Geopolitical Crime will have a positive effect on international public opinion and civil society, and could tip the balance of diplomatic activity in concrete ways helpful to victims of Geopolitical Crime. Without such a categorization, there is an operative set of beliefs that geopolitical behavior is completely unregulated and discretionary, and at most is subject to criticism as imprudent or as in this instance

that sub-regional geopolitics should give way to promote regional and global geopolitical goals, either defined by reference to counterterrorism or as establishing a unified front against Iran.

 

 

The nature and relevance of Geopolitical Crimes

An important techical point: Geopolitical Crimes are notnow recognized as such by international criminal law, and could not be made the subject of a valid complaint to the International Criminal Court (ICC). At the same time, Geopolitical Crimes are important markers of wrongful behavior in a variety of international contexts and offer helpful criteria for resolving dangerous and harmful situations of the sort facing the government of Qatar. It may be useful to consider Geopolitical Crimes as a species of illegitimateinternational behavior, and as such, politicallyand morallywrongful, although definitely outside the present scope of legalaccountability.

 

Geopolitical Crimes are wrongful acts of those sovereign states with geopolitical capabilities to adopt policies that deliberately are harmful to other sovereign states and to people. Geopolitical actors can be contrasted with ordinary sovereign states,

although the existence of power disparities are relative and contextual. Thus, the United States may be a geopolitical actor in relation to Saudi Arabia and the Gulf Coalition while these actors are geopolitical actors in relation to Qatar, which is the case for the situation here being considered.

 

A geopolitical relationship does not result in the commission of a Geopolitical Crime unless there is evidence of an intention to cause harm or a negligent failure to perceive the probable effects of actions and policies. Among prominent historical examples of Geopolitical Crime is the Versailles ‘peace diplomacy’ as it affected Europe and the Middle East, taking the forms of imposing a punitive peace on Germany after World War I, and privileging colonial ambition over the wellbeing

of resident peoples and societies after the collapse of the Ottoman Empire by imposing European territorial communities in place of the millet system of ethnic and religious communities. The Balfour Declaration and its incorporation in arrangements imposed on Palestine and its majority Arab population is another illustration of a Geopolitical Crime. [For further elaboration of these examples see Falk, ISCI Annual Lecture, Queen Mary’s University London, March 2018] A more recent example of a Geopolitical Crime in the Middle East resulted from the imposition of indiscriminate sanctions on Iraq after the Gulf War of 1991 that produced several hundred thousand civilian deaths, and was maintained in the face of official knowledge of these lethal impacts on innocent lives by the U.S. Government.

 

Extending this analysis to Qatar, the question is whether the Gulf Coalition wrongfully adopted and maintained policies foreseeably harmful to the people and state of Qatar. Both wrongfulness and awareness are elements of the crime. The wrongfulness seems demonstrated beyond a reasonable doubt by the explicit nature of the 13 Demands that also confirms awareness that was acknowledged by periodic reassertion of the demands by high officials representing Gulf Coalition governments. The conciliatory responses of the Qatar Governmet to these wrongful demands and accompanying coercive diplomacy strengthens the allegation of Geopolitical Crime.

 

 

The Pros and Cons of Claiming Geopolitical Crime

 

As suggested, describing wrongdoing by geopolitical actors as Geopolitical Crime is controversial, and needs to be carefully evaluated as a general tactic for extending normative constraints to geopolitical actors. The goal is to protect those states and  people harmed by this almost totally unregulated and very damaging forms of international wrongdoing. There are two types of Geopolitical Crimes that are associated with major loopholes in the effective coverage of international law: first, diplomatic initiatives that cause foreseeable harm, yet are not prohibited by existing international law, such as punitive sanctions imposed by a victorious country on a devastated and defeated country; secondly, diplomatic moves that violate existing legal norms, even to the extent of being crimes against humanity or gross violations of international criminal law, but are not enforceable against geopolitical actors and their close allies, creating double standards with respect to the implementation of legal norms.

 

The contention here is that the Gulf Coalition demands and coercive acts fall under the second category of Geopolitical Crime, that is, involving prohibited behavior that is beyond the present reach of enforceablelaw, leaving Qatar seemingly without an effective formal remedy. The appeal of reliance on an allegation of Geopolitical Crime is to awake the conscience of the world to this vulnerability, mobilizing pressures on the Gulf Coalition to drop their demands, restore normal relations by ending blockade, boycott, and any other coercive measures directed at Qatar, and ideally, accept responsibility for all damages sustained by Qatar, Qataris, and third parties caught in this web of wrongdoing.

 

Given this complexity it seems helpful to assess whether the advantages of alleging that the Gulf Coalition behavior is a Geopolitical Crimes outweighs the disadvantages before the leadership of Qatar determines at this stage its best policy options.

 

As far as advantages are concerned, the following factors are relevant:

–to allege a Geopolitical Crime does not require any elaborate preparations or expense;

–the text of the 13 Demands is so manifestly in violation of Qatar’s fundamental rights as to make a persuasive presentation;

–as the allegation is informal it leaves open a path to a diplomatic resolution of the situation, avoiding formal embarrassment of the Gulf Coalition member states;

–relying on a Geopolitical Crime argument makes Qatar’s grievances easy for the media and public to grasp, and puts Qatar’s position in a clear and sympathetic manner;

–advancing this argument is a constructive contribution by way of filling the gaps in international law by a recourse to moral and political considerations, particularly helpful for weaker sovereign states and a step to legal accountability by geopolitical actors who are now able to avoid, or at least evade, legal obligations.

 

As far as disadvantages are concerned, the following factors are relevant:

–the allegation of Geopolitical Crime will be regarded as controversial, and even provocative, and could have the effect of escalating the confrontation, making a solution more difficult to obtain;

–as the concept of Geopolitical Crime is threatening to other major political actors in the world, it might be viewed as an unwelcome, and even dangerous innovation, which could discourage diplomatic attempts by such countries as the United States from continuing to seek reconciliation and compromise among the parties;

–as Geopolitical Crime challenges directly the Gulf Coalition it might obstruct moves toward reconciliation and compromise, as well as make terms of a solution more difficult to agree upon;

–if the Qatar primary goal is to end the confrontation, and nothing more, the emphasis on Geopolitical Crime could make a reconciliation process more complicated as it would likely introduce issues of liability and responsibility with respect to private interests.

 

 

In the end, a choice must be made as to whether at this stage of the encounter with the Gulf Coalition putting forward the Geopolitical Crime argument helps Qatar attain its spectrum of goals including peace, reconciliation, mediation, and harmony among Gulf countries and unity within the Gulf Cooperation Council.

 

Whatever decision is reached it seems helpful to be aware of the Geopolitical Crime approach as possibly applicable to this type of difficult situation facing the leadership of the sovereign state of Qatar.

 

8 June 2018

 

Wider Consequences of U.S. Withdrawal from the UN Human Rights Council

7 Jul

Interview with Daniel Falcone, June 21, 2018, initially published in TruthOut, July 3, 2018

———————————

Questions on U.S. Withdrawal from UNHRC

 

  1. What are your thoughts on the US pulling out of the UNHRC and how are Mike Pompeo and Nikki Haley’s disparaging and overly defensive claims different from what is taking place in the background? They’ve remarked how the UNHRC is “hypocritical and self-serving” and remarked of its “chronic anti-Israel bias.” What is it about the UNHRC that compels the US to disengage?

 

I think the superficial response to this latest de-internationalizing move is the tendency of the Trump Administration to align its policies in conformity with Israeli priorities and preferences, which have long focused on the Human Rights Council (HRC) as a venue hostile to their policies and practices. HRC is the most important actor in the UN System in which geopolitical pressures can be largely neutralized, partly because there is no veto, and partly because it is representative of the frustrations that the world as a whole has felt for decades in response to the dual Israel posture of defying international law while constantly expanding their grip on what was internationally widely understood after the 1967 War as territory set aside for a Palestinian sovereign state. This interactive process has gone on so long as to seem irreversible at this point, making the two-state solution reflective of the international consensus no longer a realistic option, which appears to leave open the path to an Israeli one-state solution that corresponds with the maximal Zionist vision of establishing a Jewish state with sovereignty over the whole of Palestine, which from the Zionist perspective is ‘the promised land’ of Jews by virtue of a biblical entitlement. Such a rationalization completely ignores the normative primacy in the 21stcentury of the right of self-determination to be exercised by the majority resident population and its legitimate representatives. This circumstances helps explain both Palestinian resistance and Israeli reliance on an apartheid matrix of control to shatter opposition to its goals.

 

Rather than an anti-Israeli bias, the UN as a whole, and the HRC in particular, have done too little rather than too much with respect to expressing disapproval of Israel’s policies and practices in Palestine. It should be recalled that after the British gave up their Mandatory status as administrator of Palestine after World War II, the UN was tasked with finding a solution to the tensions between the majority Palestinian population and the Jewish minority (of about 30% in 1947). It came up with a partition plan embodied in General Assembly Resolution 181, which when rejected by the Palestinians produced the Partition War resulting in the removal, mostly by force, of about 750,000 Palestinians from the area set aside for a Jewish state, and the prolonged occupation of 22% of the territory that remained of the Palestine Mandated territory, governed by Jordan until 1967, and subsequently militarily administered by Israel. In other words, the UN has failed to produce a sustainable solution that protects minimal Palestinian rights, much less its fundamental right of self-determination, and has been unable to curb Israeli behavior to conform to the constraints of international humanitarian law. It should be understood that the UN has no comparable unfulfilled responsibility with respect to any other territory in the world, and its attention to Israeli defiance is more of an expression of institutional frustration and futility than it meant to mount a serious challenge to Israeli behavior, including its flagrant violations of the Geneva Conventions and Protocols. To the extent Israel is challenged it comes from Palestinian resistance initiatives, as witnessed recently in the lengthy demonstrations and killings associated with the Great Return March, and secondarily, from the intensifying global solidarity movement highlighted by the growing success of the BDS Campaign. It is this success that is much more threatening to Israel than anything that happens at the UN, and helps explain their frantic effort to criminalize and penalize those that are active BDS supporters.

 

 

  1. How can you describe the current reputation of the United States in world affairs? There was talk of the US pulling out preemptively as to avoid a embarrassing condemnation from the UN for the US/Israel treatment of Gaza.

 

The U.S. by design and incompetence has pushed itself increasingly into a sterile ‘America, First’ corner that has increased tensions in several regions of the world, loosened long-term alliance relations, weakened multilateral lawmaking, and raised risks of nuclear and regional warfare. Instead of seeking to overcome the turmoil that is causing massive suffering in the Middle East, the United States has lent material and diplomatic support to genocidal war making directed at Yemen and joined with Israel and Saudi Arabia in pushing toward a regime-changing intervention in Iran with dire potential consequences both for the Iranian people and the region, and possibly the world. The Trump repudiation of the 2015 nuclear agreement reached with Iran and the Paris climate change agreement is to retreat from positive internationalismand its global leadership role exercised since 1945, as well as to disrupt the institutional and treaty frameworks facilitating global trade and investment. This combination of warmongering militarism and exclusionary nationalism is generating a new American foreign policy that might be identified as illiberal internationalism, or maybe more graphically as negative internationalism. It is not only causing dangerous forms of confrontation, it is also acting as a catastrophic distraction from urgent problem-solving imperatives of this period of world history, especially, meeting the challenges of climate change, biodiversity, nuclearism, migration, and extreme poverty.

 

 

  1. Real Clear Politics asserted that, “the international community stokes Gazans’ ruinous belief that Israel belongs to them and fuels their delusive dream of return. On May 18, for example, the U.N. Human Rights Council again improperly intervened in the Israeli-Palestinian conflict in favor of Hamas.” This outlet is called “ideologically diverse.” How crucial is Israel’s role in the US pullout?

 

It is difficult to assess the motivational calculus that prompted the U.S. withdrawal from the HRC. It seems over-determined, especially consistent with this pattern during the Trump presidency of withdrawing from otherpositive internationalistarrangements mentioned earlier. Surely, Israeli hostility to the HRC, which I experienced personally while serving as HRC Special Rapporteur on Occupied Palestine, is a factor, but to what extent, is impossible to say. In some respects, the HRC withdrawal seems parallel to the provocative move of the American Embassy to Jerusalem. In effect, we think we are punishing the world by our refusal to participate in these international arrangements, but in reality we are harming ourselves.

 

 

4.Describe the structure of US geopolitics at the moment and how are allies reacting to this unclear and confusing period? Also, do you see any good press coverage?

 

I think the Trump pattern is so erratic and dangerously destabilizing that it impairs our capacity to acknowledge positive initiatives even if narcissistically or defensively motivated. I find the liberal Democratic criticism of the Korean nuclear accommodation as the prime example, but another is the indistinct effort to normalize relations with Russia, avoiding a second Cold War. As suggested, Trump may be seeking glory for the Korean diplomacy and his fears of Moscow disclosures about his finances might drive his approach to Putin and Russia, but even such dubious and dark motives should not color our judgment of the policy? The mainstream media seems so polarized with respect to the Trump presidency, and thus tends mindlessly to condemn or applaud, with little by way of effort to disentangle the policy from the person.

 

Trump’s crude pushback against European allies has generated confusion. On the one side, there is a European sense that the time has come to cut free from the epoch of Cold War dependence on Washington, and forge security and economic policy more independently in accord with the social democratic spirit of ‘Europe, First.’ At the same time, there is a reluctance to risk breaking up a familiar framework that has brought Europe a long period of relative stability and mostly healthy economic development to Europe. Such considerations create a mood of ambivalence and uncertainty, perhaps thinking that Trump is a temporary aberration from reestablishing a more durable framework versus the idea that Trumpism has given Europe and the separate states an opportunity to achieve a political future more in accord with the values and interests of the region and its member states than its longtime deference to the shifting moods and priorities of Washington. Also, Europe is now facing its own rising forms of right-wing populism, chauvinistic nationalism, and a resulting crisis of confidence in the viability of the European Union under pressures from the refugee influx and the unevenness of economic conditions in northern Europe as distinct from Mediterranean Europe.

 

Finally, the Asian context is different. Trump has sought to focus on revising the economic relationship with China in ways that supposedly help American business and consumers. In this pursuit, it would be helpful to stabilize the Korean peninsula and keep firm the relationship with Japan. So far, this pattern seems to describe the present approach, but given the clumsy impulsiveness of Trump when it comes to abrupt shifts in policy it is hazardous to make predictions as to the future course of American behavior in the Asian context. Maybe, just maybe, the absence of the Israeli dimension, may give Asian policy more flavor of coherence and rationality, yet such a possibility still involves a radical repudiation of the earlier promotion of neoliberal globalization and international liberalism, and a return to mercantilist approaches to economic nationalism.

 

 

  1. Is there a strategy to this exit because of the Republican Party base in your view? How much of this, like Iran perhaps is for electoral politics?

 

Earlier in the Trump presidency seemed the Republican Party seemed divided, and there was more tension between the White House and the Republican leadership in Congress than recently. Especially after the passage of the pro-rich, pro-business tax bill in 2107, the Trump hold on the Republican Party strengthened to the point that an astonishing 89% of Republicans, according to recent polls, now approve of his presidential leadership. This is profoundly worrisome, and at the same time, revealing that any serious Republican departure from the Trump approach to major political issues will be viewed as virtual political suicide by career-minded Republicans.

 

As for Trump himself, his motivations are hard to assess as he proceeds by intuition, demagogic self-confidence, and unparalleled narcissism, which means no accountability, no truthfulness, and no coherence. Intellectuals tend, as they did with Reagan, to underestimate Trump’s capacity to connect with the raw feelings of ‘ordinary’ Americans, especially those feeling left out. This Trump appeal becomes formidable when bolstered by right-wing financial and ideological support.

 

I feel it is not too alarmist or misleading to talk of the present era of American political life as ‘pre-fascist,’ posing the formidable challenge of reversing the political current in the country as rapidly as possible to avoid any transition from pre-fascism to fascism (in some distinctly American form that refuses the language of fascism while implementing its worldview).