Archive by Author

Finding Truth in Syria

16 Nov

I have been perplexed by the intense divergences of perception when it comes to the Syrian reality, and the allocation of blame and responsibility for the havoc that has been experienced by the Syrian people.

In ‘the fog of war’ there are many ambiguities that allow ideological predisposition to color what we believe is happening. There is very little basis for trust, and the extraordinary complexity and shifting priorities of the many participants precludes a simple diagnosis.

This makes it all the more crucial not to succumb to explanations that confirm our political outlook, especially by doubting the conclusions that have been confirmed by multiple generally reliable sources of information. George Monbiat, a prominent and respected Guardian columnist supports the view that the main element of the anti-Assad narrative are true, and truer than the contrary interpretations offered by a variety of anti-imperialist commentators and dissident journalists:

<https://www.theguardian.com/commentisfree/2017/nov/15/lesson-from-syria-chemical-weapons-conspiracy-theories-alt-right&gt;

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Failing the people of Syria during Seven Years of Devastation and Dispossession

13 Nov

 

Failing the people of Syria during Seven Years of Devastation and Dispossession

 

[Prefatory Note: What follows is a wide-ranging interview in November 2017 that that concentrates on the failure of the UN and the world to rescue the people of Syria by a timely and effective humanitarian intervention. The interview was conducted by a Turkish journalist, Salva Amor, and is to be published in a magazine, Causcasus International. The text of the interview has been slightly modified.]

 

A missed chance 

 

  1. You previously referred to Syria as “an ideal case for humanitarian intervention” however, rather than becoming a prime example of positive humanitarian intervention it has turned into one of the greatest humanitarian crises with half of the country becoming refugees or internally displaced. 

 

What turned such an Ideal case for humanitarian intervention into one of the worst humanitarian responses we have seen in recent times?

 

Answer: I do not recall this reference to Syria as ‘an ideal case,’ but I must have meant it in a hypothetical sense, that is, as if ‘humanitarian intervention’ was ever called for, it was in Syria, especially at the early stages of the conflict. And yet I am inclined to think that regime-changing intervention was at all stages a mission impossible. We should keep in mind that the record of actual successful instances of what is labeled as ‘humanitarian intervention’ has been dismal, and when successful the motivation was not predominantly humanitarian, but rather a confluence of strategic interests of one sort or another with a humanitarian challenge. In Syria the strategic interests were not sufficiently strong to justify the likely costs, especially in the wake of Iraq and Afghanistan.

 

Sometimes, the intervention is a cover for non-humanitarian goals, as in Afghanistan (2002), Iraq (2003), and Libya (2011) and may be effective in attaining its immediate goals of regime change but is extremely costly from the perspective of humanitarianism if assessed from the perspective of prolonged violence, societal chaos, and human suffering.

And only marginally successful strategically given the resilience of territorial resistance and the pressure for long-term occupation if the original gains of intervention are to be preserved.

 

At other times, the humanitarian rationale is present, as in Syria, but there is no strategic justification of sufficient weight, and what is done by external actors or the UN is insufficient to control the outcome, and often ends up intensifying the scale of suffering endured by the population. In effect, humanitarian intervention rarely achieves a net benefit from the perspective of the population that is being supposedly rescued. Perhaps, Kosovo (1999) is the best recent case where an alleged humanitarian intervention enjoyed enough strategic value to be effective, and yet seems to have left the Kosovar population better off afterwards, although even Kosovo is not a clear case.  

 

 

Failures & implications of inaction

 

  1. The humanitarian failures in Syria and for Syrian refugees in neighboring countries including Jordan, Turkey, Lebanon and Iraq have had far-reaching implications for the EU with millions of refugees choosing to risk their lives in order to enter Europe causing the largest exodus since WWII. 

 

Could the surge of refugees fleeing to Europe have been avoided had a more positive and organized humanitarian intervention taken place?

 

Answer: It is possible that had Syria possessed large oil reserves, the intervention against the Damascus regime would have been robust enough to topple the regime, and create stability before combat conditions prompted massive internal population displacements and gigantic refugee flows, including the European influx. In this sense, Libya with oil, did prompt such an intervention, although it was an easier undertaking, as the Qaddafi regime had much less popular support than did the Assad regime, and was less well equipped militarily and lacked regional allies. In Syria, because of regional and global geopolitical cleavages, the politics of intervention and counter-intervention was far more complicated, and inhibited potential anti-regime interveners from making large commitments. At the early stages of the conflict Turkey and the United States miscalculated the costs and scale of a successful intervention in Syria, supposing that an indirect and low level effort could be effective in achieving regime change, which misunderstood the conditions prevailing in Syria.  

 

 

The best response

 

  1. In your experience, what would have been the ideal humanitarian response to the war in Syria? And who would have been best to implement it? 

 

Answer: As my earlier responses hinted, there is no ideal response, and the current world order system is not reliably capable of handling humanitarian intervention in a situation such as existed in Syria. To have any chance of effectiveness would require entrusting the undertaking to one or more powerful states, but even then the situation that would follow, is highly uncertain. In a post-colonial setting, there is bound to be strong nationalist and territorial resistance to outside intervention and occupation, generally producing serious prolonged chaos. If the country is very small and can be overwhelmed (Granada, Panama) without counter-intervention the undertaking will sometimes work. Iraq serves as a clear example of an intervention that did rid the country of a brutal tyrant, but produced internal violence among competing regions, tribes, and generated extreme sectarian strife between Sunnis and Shiites, as well as a series of ethnic, tribal, and regional battles.

 

In a better governed world, which is far from existing, the UN would have acted robustly and with the support of the regional governments in the Middle East, the geopolitical actors (U.S. and Russia) would have not pursued their strategic agendas, and a politically neutral intervention would have created the conditions for a post-Assad democratic political transition, including imposing accountability for past crimes. Merely mentioning this desirable scenario is enough to reveal its utopian character. Especially in the Middle East, geopolitics of a regional and global scope badly distort all efforts to fashion a humanitarian response to repression and severe violations of human rights. In the background, but not far in the background, is the relevance of oil. The countries that have experienced massive interventions (Iraq, Libya) possessed abundant oil reserves, while those that have little or no oil have either been ignored or endured prolonged bloody conflict, of which Syria is the worst case, having become the scene of competing and offsetting interventions motivated by political and strategic ambitions with only a thin propaganda rationale associated with alleviating a humanitarian crisis, which at best, was a much subordinated goal of the interveners on both sides.

 

 

Lessons for Future

 

4a. How can the world learn from the humanitarian failures and inaction that occurred in Syria for the past 7 years? What opportunities to protect, defend or support the Syrian people have we missed?

 

Answer: In my view, it is a mistake to speak of ‘inaction’ in the Syrian context. There have been massive interventions of all sorts on both sides of the conflict by a variety of actors, but none decisive enough to end the conflict, and none primarily motivated by humanitarian concerns. Of course, here and there, lives could have been saved, especially if the balance of forces within Syria had been better understood at an early stage of the conflict in the West. What intervention achieved in Syria was largely a matter of magnifying the conflict, and attendant suffering. The conflict itself was surrounded by contradictory propaganda claims making the reality difficult to perceive by the public, and therefore there was political resistance to more explicit and possibly more effective regime changing intervention. 

 

Indifference:

 

4b. Is there any correlation between the rise of Islamophobia and the world’s inaction towards Syrian people’s suffering? Has the ongoing drumming of hatred towards the Islamic religion created a generation of indifference towards those of them who are suffering? Or is such wide indifference a natural response to such overwhelming humanitarian crisis?

 

Answer: The indifference in relation to Syria is mainly a matter of public confusion and distrust. Confusion about the nature of the conflict and distrust as to the motives of political actors that have intervened on either side. The spike in Islamophobia is attributable to the interplay of the European refugee crisis and the occurrence of terrorist incidents that are perpetrated by ISIS and its supporters. Of course, the massive refugee flow was prompted by the violence in the Syrian combat zones, which has made Europe most interested in resolving the conflict even if meant allowing a criminal regime to remain in power.

 

I suppose that the indifference noted in your question is more evident in relation to the plight of the Rohingya people in Myanmar that in response to Syria where, as I have been suggesting, the political context dominates the human suffering, and the Islamic identity of the victimized people is secondary. Also, it is worth recalling the global indifference to genocide in Rwanda (1994) that could have prevented,

or at least minimized, by a timely, and relatively small scale intervention. And on occasion, if the strategic context is supportive, the West will intervene on the Islamic side as in Bosnia and Kosovo in the 1990s, and there in opposition to the Christian side.  

 

 

  1. The UN has handed over a large portion of the $4bn of its aid effort in Syria to the Syrian regime or partners who have been approved by Bashar Al Assad. How does the UN justify providing tens of millions of dollars in humanitarian aid to one of the worst governments, that has besieged, starved, bombed and killed hundreds of thousands of its own people? 

 

Answer: I suppose the basic justification for this behavior is that from the viewpoint of the UN the Damascus regime remains the legitimate government of Syria representing the country at the UN. This is of course a legalistic justification, and evades the real humanitarian crisis as well as the crimes of Assad’s regime. So far, because there is a geopolitical standoff, regionally (Iran v. Saudi Arabia) and globally (Russia v. the U.S. and Turkey), the UN has tried to remain aloof from the ambit of political controversy to the extent possible while doing what it can to alleviate human suffering. I am not knowledgeable about whether the UN aid is reaching the civilian population as claimed. The language of your question suggests that there should be some mechanism for disqualifying a government that commits repeated crimes against its own people from being treated by the UN as a normal member state, but this is not likely to happen anytime soon, and it is tricky as the UN System is built around state-centric ideas of world order.

 

 

The right to torture

 

  1. The world was shocked in 2015 when the Caesar files were releasedrevealing human stories behind 28,000 deaths in Syrian prisons, most, if not all were tortured prior to their death.Two years later no action has been taken in regards to detainees and torture in prisons. There has been no action or desire to send observers to Syrian Prisons nor to investigate those who were named in the Caesar files for war crimes.What must a dictator have to do for the international community to respond to his crimes? Comparing Libyan intervention with Syria

 

Answer: I took part recently in a ceremony in Nuremberg Germany that awarded a human rights prize to the photographer, whose identity is kept secret for his safety, responsible for the Caesar Report containing photographic images of Syrian prison torture of some 11,000 prisoners, most of whom are reportedly now dead. There is no question that these images are horrifying, but serious issues have been raised as to the authenticity of this photographic archive. It has been authenticated as genuine by Human Rights Watch, but has also been used by persons closely connected with the U.S. Government to build a case for war crimes prosecutions, particularly against Bashar al Assad. I am not in a position to assess the controversy, yet do not doubt that the Damascus regime has committed many atrocities and are responsible for the great majority of civilian deaths over the course of the last six years in Syria. At the same time the anti-regime forces, which are fragmented, have also committed many war crimes.

 

These issues of criminal accountability cannot be reliably answered from a distance, or merely on the basis of media reports. What is required is a credible international fact finding commission of inquiry with adequate access to whatever evidence and witnesses remain available.

 

 

 

  1. Human rights groups have estimated that no less than half a million people have died in the last 7 years in Syria. Although there are many violent factions in Syria, more than 94% of all deaths have been caused by Syrian Government or Russian strikes. In comparison Libya’s Muammer Gaddafi had killed an 257 people including combatants and injured 949 with less than 3% being women and children when UN security council intervened. On March 17, 2011, the United Nations Security Council adopted Resolution 1973 (2011) authorizing “regional organizations or arrangements…to take all necessary measures…to protect civilians and civilian populated areas under threat of attack” in Libya. The resolution was adopted with ten votes for, none against, and five abstentions. In hindsight, many have now questioned whether that intervention was purely to “protect civilians”. Is the UN Security Council still a reliable body that can be relied upon to protect the civilian? The UN’s Responsibility Not – To Protect the Civilian Population

 

Answer: The Responsibility to Protect (R2P) UN norm is interpreted and practice is governed by the UN Security Council, and hence is completely subordinated to the manipulations of geopolitics. In this regard, the lesser humanitarian hazard in Libya led to a UN regime-changing mission because the Permanent Members opposed to intervention (China, Russia) were persuaded not to cast their veto for what was being proposed, which was a limited humanitarian mission to protect the then entrapped civilian population of Benghazi. In fact, the NATO undertaking expanded the mission far beyond the Security Council mandate from its inception, angering Russia and China that had abstained out of deference to pleas relating to the humanitarian claims put forward by the NATO members of the Security Council. They later justified their opposition to a more pro-active UN role in Syria by reference to this failure of trust, the unwillingness of the intervening states to respect the limits of the mandate.

 

What is important to appreciate is that R2P and other UN undertakings must adhere to the constraints of geopolitics. As disturbing as inaction with respect to Syria, is the UN silence with regard to the abuse of the civilian populations of Gaza and Rakhine (Myanmar). It is only when a geopolitical consensus exists, which is quite rare (e.g. failure with respect to Yemen) that it is possible for the UN to play an important humanitarian role in shaping behavior and protecting civilians.

 

 

  1. Why was The UN’s responsibility to protect (R2P ) invisible in the last 7 years in Syria? What must be done now, in order to implement an R2P operation in Syria to avoid further suffering? In past years vetoes have blocked humanitarian intervention.

 

Answer: Part of my response here has already been given in relation to the prior question. I would only add here that the abolition of the veto would be a crucial step, or even an agreement among permanent members of the Security Council to refrain from casting a veto in humanitarian contexts such as Syria. The problem is that the veto powers are extremely unlikely to give up their right of veto, partly because such states do not voluntarily give up power and partly because humanitarian issues are almost always inseparable from diverse and often antagonist geopolitical interests, and therefore the claims are not perceived as humanitarian. This is certainly the case with regard to Syria. The take away conclusion is that the international system as it now functions is rarely motivated by humanitarian considerations when they come into conflict with the strong political preferences and strategic priorities of principal states, and this is true even when the humanitarian crisis is as severe and prolonged as in Syria.

 The most constructive response, in view of these realities, is to advocate global reform, but this will not happen without a major mobilization of people throughout the world or as a frantic response to some earth-shaking catastrophe.

 

 

  1. I understand that there was a veto by Russia and thus a solution was not passed, however, in such cases, when one of the countries that is involved in the atrocities is allowed to veto, does it not raise the alarm?Surely, this situation in Syria and the human cost provides enough of a precedent for (if not the UN, those who care about preventing further atrocities) a new chapter to be drafted and implemented into the UN. –Do you believe that it is time for the UN to adopt a new chapter into itsCharter that would prevent dictators or countries with vested interest in a war from overpowering UN Security Council votes? Normalizing atrocities at the global level.

 

Answer: Yes, there was much criticism of Russia for blocking action on Syria, but Russia was acting in accord with the constitutional structure of the UN. The U.S. uses its veto in a comparable way to protect Israel and other allies, and equally irresponsibly, from a moral or humanitarian point of view. It should be remembered that the League of Nations fell apart because major states would not participate, including the United States. The idea of the veto was designed to persuade all major states to participate, with the goal of universality of membership, but at the cost of engendering paralysis and irresponsible obstructions to action whenever veto powers disagree sharply. Your questions raise the crucial issue if this was too high a price to pay for the sake of maintaining universality of participation. One consequence of this tradeoff between geopolitics and effectiveness is to weaken public respect for the UN as an agency for the promotion of justice and decency in global affairs.

 

As specified in Article 108 of the UN Charter requires the approval of 2/3rds of the entire membership of the UN as well as all five Permanent Members of the Security Council, which means that it will not happen in the foreseeable future in relation to any politically sensitive issue. When World War II ended there was the hope and illusion that countries that cooperated against fascism would continue to cooperate to maintain the peace. As should have been anticipated, it was a forlorn hope.

 

 

  1. The White House accepts Assad’s continued rule in Syria as a “political reality” while European leaders have also taken a soft approach with French president declaring he no longer saw the removal of Assad as necessary. In your view, how do such civilized countries justify good relations with Assad? ISIS the monster that invites intervention: ISIS Affects the West, Assad does not.

 

Answer: Your comment on ISIS is a way of expressing my view that these issues are dominated by geopolitical calculations. ISIS as horrible as it is has not been nearly as responsible for the quality and quantity of suffering inflicted upon the Syrian people by the Damascus regime.

 

At this point, and given the unavailability of humanitarian intervention, the best Plan B for Syria is to seek a sustainable ceasefire, and this would undoubtedly require making some unpalatable compromises, including the possible retention of Assad as head of state. After all, there are many heads of state with much blood on their hands, and yet their legitimacy as rulers is essentially unchallenged. The way the world is organized makes it unable to impose criminal responsibility on the leaders of sovereign states except in special circumstances of total victory as in World War II, or more recently, in relation to the criminal prosecutions of Saddam Hussein and Milosevic, particular enemies of the West.

 

 

  1. Many Syrian groups have released statements to express their dismay at the international community for only intervening to strike ISIS. The Global Coalition’s planes hover over Deir Al Zour and Raqa to target ISIS (often causing civilian casualties) while in the same sky Assad Planes carrying deadly Barrel Bombs hover over nearby towns unperturbed. A) Is there balance in the international community’s actions in Syria? While Assad only kills or affects the lives of Syrians in Syria, ISIS became a threat to western countries. Terrorist attacks in the west killed and injured civilians in the west.
  2. B) Is there an underlying message that the West will “Fight against ISIS in Syria, because it affects people in our countries, but leave Assad because he has no impact on their own people?”

 

Answer: Yes, this is certainly a perceptive observation. When the issue is fairly large scale and internal, and where Muslims are the victims, any effort to intervene is bound to be feeble, at best, which it was in the early stages of 2011-2013 when Turkey and the U.S. cooperated in supporting Friends of Syria, which was mistakenly thought capable of shifting the balance sufficiently in Syria to produce the collapse of the Damascus regime. When that failed, it became obvious that the costs of an effective intervention were viewed in the West as too high and dangerous. Considering the Iranian and Russian alignments with the Syrian government doomed an anti-Damascus intervention.

 

And as you suggest, the West views ISIS as dangerous enemy, and is prepared to take bigger risks and bear higher costs because Western homeland security is at stake. ISIS is a proclaimed enemy of the West that is perceived as responsible for violent acts, Syria is not, being regarded, at most, as an unattractive regime, partly because in the past, hostile toward Israel. Taking account of these circumstances, the political realist seeks a ceasefire in Syria while going all out to achieve the destruction of ISIS.

 

 

  1. Please kindly note any comments, suggestions, opinions, thoughts you have on the Syrian conflict and in particular on the west’s reaction to it and the UN’s role. Also, on what you feel can and should be done from now on. Thanks so much.

 

Answer: From my earlier responses I am skeptical about what can be done beyond the obvious: give up any hope of securing support for an R2P mandate to protect the Syrian people, and pursue a ceasefire so as to end the suffering. This is not justice, but it may at least spare the Syrian people further trauma and bloodshed.

 

What the Syrian tragedy and ordeal reveals vividly is the inability of the international community, as now organized, to deal with a humanitarian crisis unless a geopolitical consensus is present in a relatively strong form, regionally and globally. Such a consensus is not even enough if the difficulties of intervention are seen as producing heavy casualties for the intervening side and would impose burdens of a prolonged occupation to achieve post-intervention political order and security.

 

Europe would benefit at this time from a Syrian ceasefire and the restoration of political normalcy. It would undoubtedly reduce the pressure on European countries created by the Syrian refugee flow, which has given right wing political parties their greatest strength and largest level of popular support since the end of World War II.

Balfour: Then and Now

2 Nov

 

 

Today, November 2, is exactly 100 years after the issuance of the Balfour Declaration, the pledge given to the World Zionist Movement in a letter signed by the British Foreign Secretary to support the establishment of a ‘national home’ in the then Ottoman millet of Palestine. Certainly ‘a day of infamy’ for the Palestinian people and their friends around the world, while unfortunately treated as ‘a day of pride’ by the British Government, and all in the West those morally bankrupt enough to regret the passing of the colonial era, and to pretend without embarrassment that the Balfour legacy is something to celebrate, rather than to mourn, in the year 2017.

 

The British pledge was an unabashed expression of colonialist arrogance in 1917, ironically made at the dawn of the worldwide movement of national upheavals that would lead in the course of the century to the collapse of European colonialism. At the end of World War I colonialism was being increasingly questioned morally, but not yet challenged legally or politically. Such challenges only began to emerge as the struggles of national liberation gained political traction globally after 1945.

 

It is worth noticing that there was a certain amount of diplomatic pushback even in the post-1918 diplomacy, especially by way of Woodrow Wilson’s advocacy of ethnic ‘self-determination’ for the Ottoman held territories of the Middle East. More strongly in the same direction was Lenin’s radical critique of colonialism as a system of oppression that needed to be opposed and crushed wherever in the world it existed. This pushback did lead Britain and France to moderate their colonial ambitions as embodied in the Sykes-Picot Agreement of 1916, but these two unrepentant colonial powers still managed to gain essentially uncontested de facto control of political communities throughout the Middle East by way of the mandate system, which might be better understood as ‘tutelary colonialism.’

 

I am led to wonder whether if Wilson had had his way at Versailles in 1919 would the Balfour impact have been lessened with respect to the unfolding reality of Palestine? Presumably, Arab self-determination throughout the region would have drastically reduced the British and French role. Perhaps this European displacement would have been to an extent as to prompt a shift of Zionist energies away from Palestine, leading to a willingness to find a secure homeland somewhere that would be more receptive to the establishment of a Jewish state in their midst. This might have spelled a different tragedy for a different people than what has befallen the Palestinian people. Of course, ‘what might have been,’ is only of interest as a way of historically decoding the injustices that currently afflict oppressed and deprived peoples. We are helpless to change the past, although we can imagine unfolding in more benevolent ways. As much as the Palestinians, the Kurds throughout the region were fragmented and subjugated, and continue to this hour to struggle for some measure of ethnic autonomy, collective dignity, and self-determination. The Kurds were promised by World War I victors a state of their own situated mainly in present day Turkey and embodied in the Treaty of Sévres (1920). A few years later what was given was taken away, reflecting geopolitical moves that adapted to intervening political developments at the enduring expense of the Kurdish people. The main intervening event between the two treaties was the shocking Ataturk victory over European powers in Turkey, which helps understand why the Treaty of Lausanne (1923) abandoned the arrangements proposed at Sevres.

 

Reverting to reality, Britain became the mandatory administrator of Palestine in 1923, opening the country to the incremental realization of the Zionist agenda, which concentrated during the 1920s and 1930s on buying land from Palestinians that could be given to Jewish settlers, doing it all it could to induce Jews to emigrate to Palestine, and resorting to a terrorist campaign that was intended to make the British position in Palestine untenable. To make the whole Zionist undertaking credible ideologically, economically, and politically it was imperative to overcome the huge demographic imbalance that existed in Palestine during the early phases of the Zionist movement. It is instructive to recall that the Jewish presence in Palestine at the time of Balfour was no more than 5-7%. Such a small minority could not possibly succeed in establishing and dominating the government of a state that was to be ethnically oriented and yet democratic. Not a single Zionist expected the resident population to accept willingly such an outcome. Israel as a viable sanctuary for Jews escaping persecution necessarily depended on finding the right formula for combining armed struggle and political deception.

 

In this sense Balfour launched a project that was utopian from the Zionist point of view and dystopian from the Palestinian perspective. On the utopian side, establishing a Jewish state that could show a democratic face to the world seemed well beyond the horizon of feasibility. To attain the Zionist goal of a democratic Jewish state in Palestine ran directly counter to the anti-colonial historical tide in the 20th Century that swept away all in path elsewhere in the non-Western world. And then to overcome such a one-sided

demographic imbalance seemed a mission impossible no matter how much the Jewish diaspora was goaded into emigrating to Israel.

 

On the dystopian side as experienced by the Palestinians, the nakba dispossession and expulsion of about 750,000 Palestinians, reinforced by discriminatory immigration policy, rigid security policies, and by Zionist expansionism that continues to this day has inflicted a tragic destiny upon the Palestinian people. This kind of ethnic restructuring also was coupled with the legitimation of a settler colonial state, including by the United Nations, at a historical moment when colonialism was entering its sunset phase and the UN was supposed to reflect the moral will of the organized global community. This outcome was permanently disillusioned for the Palestinians, and involves a cruel and paradoxical twist to the long Palestinian ordeal.

 

As an American terrified by Trump and Trumpism I cannot refrain from noting the analogies with the efforts of this leadership to airbrush the Confederate past of the United States, featuring slavery, with broad strokes of moral relativism. Trump’s outrageous assertion that there were good people on the white supremacist side of the Charlottesville demonstrations and General John Kelly’s more recent obtuse contention that the American Civil War resulted from the failure of the two sides (North and South) to strike a compromise, as if a compromise with slavery was a preferred option. A rejection of this kind of high profile posturing is not only a matter of political correctness, it is much more a matter of elemental moral sensitivity and political vigilance then and now.

 

Without letting Britain off the Balfour hook, the main international culprits since 1945 are surely the United States and the UN, jointly and separately failing to produce a sustainable and just peace for both peoples. At this time such a peace will not be achieved by continued recourse to the two-state solution that with each passing Israeli settlement expansion becomes, at best, an empty slogan, and more realistically, a way of changing the conversation to avoid considering the step that alone could bring peace to both peoples: ending the apartheid structures that have fragmented, subjugated, and victimized the Palestinian people ever since the state of Israel was proclaimed in 1948. Until Israel is persuaded to dismantle its apartheid regime (as the racist South African regime was a decade earlier), peace diplomacy is bound to be a farce that does more harm than good. If this more realistic appreciation of the preconditions for peace between Palestinians and Israelis were to begin emerging on this day of remembrance, the Balfour century could at least claim to end on a more hopeful note than it began.

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.

 

 

 

 

 

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.