Archive by Author

How Sanders Wins and Governs–Winning and Losing in 2020

24 Feb

How Sanders Wins and Governs–Winning and Losing in 2020

 

Anyone sensitive to the American political scene has become aware of an emerging collision between surging citizen support for Bernie Sanders and the lamentations of portfolio (stocks & bonds) driven Democrats who purport to question Sanders’ electability, and even if they now most reluctantly acknowledge the robustness of his electoral challenge to Trump, contend that he will be never be able to govern given his left agenda and considering the likely embitterment of the DNC establishment.

 

Admittedly, in my voting lifetime there has never been a credible candidate that is disliked by Wall Street, the Pentagon, and AIPAC. Yet, until now over many decades there has also never been a candidate that has been so ardently affirmed and trusted as Sanders by those who are tired of this regressive electoral hegemony achieved by these three pillars of the bipartisan American establishment. The person who came closest in the past to posing a similar challenge was, of course, Sanders in 2016, which had his challenge back then been allowed to happen, we might have been relieved of the present agonizing prospect of the renewal of Trump’s electoral mandate. The Sanders challenge is long overdue, and yet the Bloomberg millions and the wish for establishment continuity should not be underestimated. It is certainly not underfunded. These pale blue forces, although anti-Trump, are determined to spend and intensify their anti-Sanders campaign until they achieve their goals. They are down, but far from out, and seem in the end to care more about securing ‘a three pillars candidate’ (whoever it might be) than defeating Trump. For Trump, despite his explosive bombast and crazy tweets has pandered to Wall Street (tax breaks for the ultra-rich), Pentagon (highest budget ever in peacetime), and AIPAC (Israel gets green light for settlements, Jerusalem, Golan Heights that even prior pro-Israel partisan presidents held back on). In this sense, despite the ridicule of liberals, ‘Trump gets American politics.’

 

Against this background, principled pragmatism suggests a formula: Elizabeth Warren soon withdraws from the primary battle, despite her admirable campaign, throwing her support to Sanders. In turn Sanders pledges compatibility with her programs on health, education, and immigration, or proposes ways to blend her detailed proposals with his proclaimed objectives; he also promises her selection as his chief economic advisor throughout his presidency, while indicating an unconditional commitment to be at most a one-term president, coupled with some language suggesting that he will do all in his power to secure the 2024 Democratic Party nomination for Warren.

 

Such a formula is likely to be difficult to make operational, but if the alternative is a blue-tinged red billionaire becoming either candidate or kingmaker, we will be living under Trump in what amounts to a choiceless democracy for at least another four years. If portfolio Democrats win this battle, as they did in 2016, we might as well reconcile ourselves to an ‘always Trump’ future, dimming the lights of genuine democracy for a long, long time. They will express shock and regret as the Trump victory becomes apparent, but will unusually sleep well that night!

Weaponizing Lawfare in The Philippines

22 Feb

[Prefatory Note: The following text is the transcript of my presentation by video transmission to a Forum held in Manila on February 21, 2020 in support of Senator Leila De Lima who has been detained in prison for many months on spurious charges of drug trafficking. Such a case is an example of ‘weaponizing law’ (regressive lawfare) to carry out the anti-democratic policies of a fairly elected autocrat, which in the case of Rodrigo Duterte, despite leaving by now a long trail of blood-stained abuse, retains an approval rating of more than 80%. As in the United States, we ask the question that prompted the leading thinkers in ancient Athens to abandon democracy—‘how can we trust the citizenry if they are drawn to support demagogues whose policies are self-destructive for the political community?” If not, the people, then whom? Surely, not the financial oligarchs. Plutocracy is not the answer.]

 

 

Weaponizing Lawfare in The Philippines

 

 Good Afternoon:

I salute those who have convened and are participating in this International Forum on Lawfare, and wish that I could have been with you in person to share this experience directly rather than addressing you from a distance. The title of the conference accurately identifies the core of the challenge facing the people of the Philippines: ‘Weaponizing the Law v. Democratic Dissent.’ The prolonged detention and framing of Senator Leila M. de Lima, not only a brave and dedicated political figure, but an elected member of the Senate of the Philippines, is a shocking reminder of how abuses of power occur in a country that claims to be a constitutional democracy.

 

Senator de Lima’s tragic saga, gives an anguished concreteness to the challenge being mounted by the President Rodrigo Duterte’s Government against freedom of expression and associated right of political dissent. What this pattern represents, above all, is the distorted application of law and the manipulation of basic institutions of government. This means, in practice, that law does not serve its proper role of protecting citizens against abuses by the state, but rather functions as an instrument of naked power deployed by the state against notable critics and opposition figures, including person elected to the highest offices in the land. Under these circumstances law becomes an instrument of the authoritarian designs of an oppressive political leader. Such a leader views criticism not as part of the essential give and take of a political democracy, but rather as an impermissible assault on his leadership, almost reducing political leadership to a menacing call for unquestioning obedience on the part of citizens. Even elected members of the most prominent legislative and judicial institutions of the country are commanded to obey or expect harmful consequences. It is against this background that I wish to offer some thoughts on ‘lawfare’ as a weapon of the powerful, displacing law from its appropriate role as a source of restraint that ensures the just exercise of power. Under autocratic leadership lawfare can function as an inquisitorial tool, as here, for the suppression of Senator de Lima, a deservedly revered and until detained, a leading legislative presence in The Philippines.

 

There are four preliminary observations that I wish to make:

–first, what is happening in The Philippines is taking place, in a variety of formats throughout much of the world; it is a global trend that threatens not only democracy, but the protection of human rights, the constitutional structure of government based on checks and balances, the dignity of individual citizens, and the independence of persons elected to serve in government; law is being deployed as a weapon of government to be used against the citizen, especially against persons with political credibility and high national stature as is the case with Senator de Lima;

–secondly, such repressive uses of law by leaders is not new, although its widespread and flagrant use by democratically elected governments that enjoy popular support among the citizenry is a rather new and deeply disturbing phenomenon, especially in the current setting of ultra-nationalist backlashes against neoliberal globalization that along the way gave rise to mass support for political demagogues in a series of countries in different parts of the world, suggesting its systemic character;

–thirdly, and most significantly, lawfare as such should not be uncritically condemned, but rather its use as a means to deny basic rights should be unconditionally exposed, opposed, and rejected. The manipulation of lawfare to serve regressive ends is particularly perverse, considering that lawfare has the potential, when properly deployed in the pursuit of justice.

 

To illustrate this duality I offer a current example drawn from recent European and North American experience. Criminalizing as hate speech or anti-Semitism criticism of Israel’s policies and practices is a clear case of regressive lawfare, but recourse by Palestine to the International Criminal Court to investigate allegations of Israeli criminality is illustrative of progressive lawfare. It is important to distinguish between these contradictory roles of law—as repressive and as emancipatory. The Palestinian BDS Campaign seeks boycott, divestment, and sanctions as lawful resistance against the apartheid practices of the Israeli state, and in my view, this is a nonviolent political campaign that convincingly relies on legal claims of Israeli wrongdoing to strengthen the pursuit of justice..

–fourthly, having made this conceptual point about the two faces of lawfare, in this presentation I will focus on its negative dimensions in ways that pertain to the case before us. I precede this assessment with a short observation about being attentive to lawfare’s progressive relevance to Senator de Lima’s plight.

Civil society activism can also claim to invoke the law to undermine the legitimacy of an abusive governing process. Many years ago, during the Marcos reign of power in The Philippines, I worked closely with Walden Bello to organize a session of the Permanent Peoples Tribunal in Brussels that listen to the testimony of witnesses and carefully documented the crimes of the Marcos government as perpetrated against the citizenry of the country. The proceedings of the tribunal produced a devastating record of abuse of state power, which when published, helped prepared the atmosphere for what later became the People Power Movement of the 1980s. In terms of lawfare, this civil society initiative was an example of progressive lawfare. Similar tribunal initiatives have been undertaken in many settings around the world to exhibit the abusiveness of government, especially when conventional means of judicial address are unavailable. I believe such a civil tribunal format might possess a similar potential in the present context if formal legal defense procedures now being pursued by a team of highly respected lawyers should fail to restore the rights, win freedom and fully exonerate Senator Leila M. de Lima in a manner that allows her to resume her legislative duties.

 

The  Distinctive Challenge of Regressive Lawfare in the Context of Constitutional Democracy

The reliance by autocracies on repressive lawfare is neither surprising nor new, although this terminology was not previously used. Whether the autocratic political form is monarchical, fascist, or communist the use of law to impose its will on society occasions little commentary as it is taken for granted that such a governance style is a common and integral feature of all anti-democratic forms of governance. For constitutional democracies the story has been much different in the past, and thus recent developments raise profound concerns about the future of democracy given recent assaults on its respect for fundamental rights. We should not exaggerate. There have been regrettable aspects of constitutional legal orders that have relied on repressive uses of law, for instance, apartheid South Africa, which possessed a constitutional framework to validate its exploitation and oppression of non-whites, and their exclusion from civil rights. Racism was seen as so much part of the South African political system as to occasion little distinct commentary on its repressive uses of law beyond the realization that overcoming such structural lawfare depended on achieving a radical political transformation. Piecemeal corrective measures would not rid South Africa of the political virus of apartheid, only a total repudiation of the ideology and practice of apartheid could restore the rule of law for all South Africans regardless of their skin color.

 

In recent years, especially in the aftermath of the 9/11 attacks, national security discourse in the United States has been a battleground for contesting ideas about how lawfare was used and misused. National security hawks contending that according due process protection to those suspected of terrorist activities was ‘lawfare’ that interfered with national security imperatives requiring reliance on ‘enhanced interrogation’ techniques to obtain the information needed to protect the citizenry against terrorist threats. In sharp disagreement, civil libertarians invoked law and civil rights to oppose and denounce the demonization of Muslims and the accompanying denial of rights to those accused of criminal activities that supposedly endangered national security. This reliance on law as distinct from negative lawfare was also highly critical of the government’s slight of hand– officially calling ‘torture’ enhanced interrogation, and thus evading condemnation for lawlessness. Only apologists for torture allowed themselves to be manipulated.

 

The struggles between defense lawyers and government lawyers at the Guantanamo prison facility is one phase of this wider drama in which what is at stake is how far the law is bent to serve the purposes of a constitutional state that claims to be dealing with grave threats to its security. It has long been affirmed, and generally tolerated, that in times of war, law is silent, or almost so, and yet it is also true that anti-war activists have increasingly challenged such silence by insisting on the applicability of law regardless of circumstances.

 

The mass internment of Japanese, as a group, with legal residence in the West Coast, for alleged national security reasons at the start of World War II after the Pearl Harbor attacks, was a fundamental abuse of individuals rights to due process by the U.S. Government, but upheld by the majority of judges in the US Supreme Court, which lent its legal authority and prestige to this negative instance of lawfare. To this day, Japanese internment remains a major regrettable departure from the rule of law in the United States but is considered, not entirely accurately, as an exception, later gathering apologies and expressions of regret from presidents and other political leaders. This kind of departures from the rule of law in wartime, although to be opposed in defense of democratic values, is something different and less serious than the lawfare tactics of autocratic leaders seeking to stifle dissent and discredit opposition in state/society relations. These tactics, if successful, engulf all branches of government, having the effect of disabling democracy altogether. The regressive impact of such lawfare extends beyond the concrete abuse of an individual, however prominent. Such tactics intimidate many more than they punish, and thereby act to pacify society as a whole at the very time when the citizenry needs to be mobilized to protect the integrity of a political system that safeguards rather than punishes participation by the citizenry, including dissent and opposition.

 

A further somewhat ambiguous dimension of lawfare can be seen in the imposition of punishment via the application of law to surviving leaders of the losing side in a war, as was the case after World War II at the Nuremberg and Tokyo Trials of German and Japanese leaders accused of committing international crimes. Should the one-sidedness of such uses of law, so-called ‘victors’ justice’ be regarded as one category of regressive lawfare, or is the punishment of individuals who perpetrated terrible acts be treated as a contribution to constructing a global rule of law, and thus should be viewed as an instance of flawed, yet still progressive lawfare. This is an example of the ambiguity of lawfare in concrete circumstance. Lawfare can be viewed either positively or negatively depending on overall context and the motivations behind invoking and perceiving law. Let me be clear. There is no ambiguity in relation to Senator de Lima’s case. It is without doubt an extreme instance of negative lawfare.

 

What we have seen around the world with the emergence of such leaders as Trump, Modi, Bolsonaro, Erdogan, and Duterte is this new phenomenon of democratic electoral procedures elevating and even sustaining anti-democratic leaders despite their abuse of positions of preeminent authority to obstruct and punish those in the opposition by manipulating law and even the most basic government institutions to serve the purposes of power at the expense of justice. This is not a matter of deference to security claims made under wartime pressures and contexts of national emergency, although such pretexts are generally relied upon, presumed, and greatly exaggerated, even absent such security threats. Autocrats tend to explain and justify why a controversial particular action is taken by fictitious reasoning or why a formerly respected person is made to seem guilty by distorting normal legal practice. These tactics involve deliberate manipulations of law and government procedures, including the erosion and subversion of the vital independence of legislative and judicial institutions to cripple opposition politics by criminalizing its leading opponents. In the process, if unopposed and persistent, the very status of a constitutional political order is drawn into question.

 

There are those in the United States who view Trumpism as pre-fascist, or worse, and fear that his reelection in 2020 would mean the de facto replacement of democracy with fascism. In the recent impeachment process, we observed a polarized and Congress divided along partisan lines as to the application of diverse forms of lawfare, with the Democrats using impeachment as an intended and seemingly responsible reaction against severe abuses of power, in effect, a legal instrument designed in exceptional circumstances to rid the country of a profound threat to its system of government. In opposition, the Republicans stand firm behind their autocratically inclined leader, condemning recourse to impeachment as regressive lawfare, placing party discipline above fidelity to the rule of law and their oath of office to uphold the Constitution. This major setback for the rule of law in America ominously warns us that even in long established political democracies opportunistic politics can overwhelm constitutional protections against abuses of state power.

 

When addressing the realities that have been discussed these past days, it seems clear that we are in this case seeking to protect not only Senator de Lima, but the people of The Philippines as a whole against regressive lawfare. There is little ambiguity when dissent is muffled by criminalizing the dissenter, as here, although the real and unworthy motivations for such accusations are hidden beneath clouds of false and inflammatory accusations of criminality, as here.

 

In a deeply disturbing resemblance to the Trump impeachment experience, Senator de Lima has also been victimized by Duterte partisanship in the Senate, including being deprived of the opportunity to serve the people who her elected her to office for a term that does not expire until 2022. While detained in prison she has been denied the right to vote on legislative issues and to participate in debates. She has even been removed from her role as Chair of the Committee on Justice & Human Rights in apparent retaliation for accusing the Duterte policies of unlawful extra-judicial executions of persons accused of dealing in drugs. While acting against Senator de Lima, she was attacked in unspeakably vulgar terms by Duterte partisans in language that was a vicious form of character assassination. This Forum by calling wider public attention to this abuse of Senator de Lima by all branches of government is based on the hope that the resilience of Filipino constitutionalism will come even now to the rescue not just of a single individual but in a manner that restores confidence that the rule of law can function under the altered conditions of political democracy in The Philippines.  

 

What Can Be Done

Responding to regressive lawfare as effectively as possible depends, in the first instance, on assessing the context, above all the degree to which executive authority, judicial independence, and legislative autonomy are operating within constitutional limits. If the deviation from adherence to the rule of law is partial, exceptional, and seems reversible, then a maximum effort should be made to make intelligent use of formal legal procedures as provided. Such professional lawyering should be supplemented, to the extent possible, by media coverage and the engagement of academic experts that exposes the political nature of any misuse of law, arousing a responsive public opinion. Such extra-legal pressure in a political system that maintains its claims of democratic legitimacy can be effective in persuading wavering judges and conformist legislators to do the right thing, and at least refrain from doing the wrong thing.

 

The challenge is more difficult where the institutions of government have been repeatedly subverted by the autocratic leader, and especially under conditions where the opposition media has been eliminated or cowed into submission, and popular protest activity is being met by harsh police tactics. Of course, such assessments should take account of nuances and the extent to which a leader seeks to avoid being nationally and internationally branded as an abusive autocrat.

 

Unfortunately, at the present time the overall political atmosphere makes resistance to lawfare more difficult as the combination of ultra-nationalism and right-wing populist leadership has become widespread, including in several countries previously considered reliable custodians stalwarts of liberal constitutionalism. In gentler times, international efforts to mount petition campaigns by prominent citizens around the world in defense of a ‘political prisoner’ were often successful, and still may be worthwhile

in a case of this sort where such a respected and prominent elected official is being victimized by such a crude recourse to lawfare. Autocracy is almost always a matter of degree, especially if free elections remain. If opposition politics are tolerated, then it remains possible sometimes to challenge the system effectively, as happened recently in Turkey when a much watched election of the mayor of Istanbul was won by a political leader in an opposition party. This, in turn, may lead the government to restore some liberal features of governance, which some commentators claim has modestly happened in Turkey in recent months. Autocrats prefer to act in the dark, using their control over media and supporters to smear opponents. Senator de Lima’s case is an extreme example of law gone wrong, a pattern of injustice being challenged to the extent possible by courageous and highly professional lawyers, but this may not be enough. Other course of action, including progressive lawfare, should be under consideration if further attempts to render justice on behalf of Senator de Lima do not succeed.

 

I would mention a few additional possibilities that deserve careful evaluation, and possible adoption, especially if human and financial resources are available:

–enlisting the support of nationally and internationally respected NGOs, encouraging the preparation of a public report on abuse of rights and regressive lawfare in The Philippines; Amnesty International and Human Rights Watch have often been effective over the years in documenting abuse, and exerting some leverage;

–filing allegations via Special Rapporteurs of the UN Human Rights Council in Geneva, including the SR for the Right to Freedom of Expression,   to evaluate these multiple abuses, reporting to the 47 governments in an open session of the Human Rights Council, passing a resolution, and sending a letter of allegation to the government of The Philippines are steps worth consideration; in this regard, it is relevant to note that The Philippines is an elected member of the Human Rights Council, and likely does not want its reputation tarnished within the institution;

–explore the possibility of organizing an international civil society tribunal, possibly outside the country, along the lines of such an initiative taken during the Marcos presidency or possible modelled on the Iraq War Tribunal of 2005. Autocratic leaders are allergic to procedures that document their abuses and crimes, and pass judgment based on the conscience of moral authority figures, the testimony of victims, and the opinions of legal experts. The subsequent published and disseminated proceedings of such a tribunal can become a valuable mobilizing instrument of progressive lawfare;

–less formally, yet along the same lines, would be the preparation of a dossier on Senator de Lima’s experience that could be shared confidentially with sympathetic political leaders around the world.

 

Concluding Comment

It is definitely a positive sign of a degree of democratic resilience in The Philippines that a conference of this kind can be organized and go forward. It will be a test of sorts as to whether the Duterte government will extend its use of regressive lawfare to uphold the suppression of dissent and criticism. In my reading of the legal briefs and documents pertaining to Senator de Lima’s case, I am convinced of her innocence and her victimization. I believe that the impact of this Forum will help determine whether bringing her terrible experience to light will induce the Manila government belatedly to salvage its international reputation to some extent by dropping charges. She has been fortunate to have the benefit of an outstanding Chief of Staff, Fhillip Sawali, who works in coordination with Senator de Lima’s well-respected team of lawyers. Senator de Lima also has the high-profile support of such international admired warriors of human rights and democracy as Walden Bello. I fervently wish Senator de Lima a deservedly bright future in her struggle, which iss also a struggle for the soul of the country. It has been a privilege for me to have this opportunity to participate in this Forum. I wish you all the best for now and in the future. 

Respecting International Law: A Practical Argument

20 Feb

[Prefatory Note: International law, as so much else of value, has fallen on hard times,

violated and ignored, where applicable and needed. Although this is a deplorable state of affairs as the planet burns and vulnerable people suffer from ecological hazards and predatory geopolitics, it is the time to heighten struggle, and not sit home in despair. This essay in a slightly modified form was written at the request of Fikir Turu, an online source of commentary operating from Turkey, and published in Turkish. An English version was also published in Transcend Media Service, TMS, 17 February 2020.] 

 

Respecting International Law: A Practical Argument

International law disappoints in so many ways, making it easy to overlook why, despite its flaws, it remains valuable and indeed vital for human wellbeing. I put here to one side its usefulness for managing the touristic, trade and investment, maritime, and networking dimensions of international and transnational life, which most of us take for granted until something goes wrong. And I also take note of the inability of international law to fulfill the hopes of idealists who suppose that law on its own can banish war or ensure that international disputes are resolved by applying law rather than through power leveraging. If we are attentive to current events, as the media reports war/peace issues we would quickly conclude that invoking international law in these high profile settings is to be out of touch with how sovereign states go about pursuing their most important economic and political interests, which in areas touching on security is by trusting their military capabilities and alliance relations, and not by believing that as long as their actions and policies stay on the right side of the law, they have nothing to worry about.

 

Against such a background, my assessment suggests that international law is more relevant even in war/peace settings than what the men who still make most of the big foreign policy decisions realize. A major point here is a reflection of the global turn toward governments led by anti-democratic political figures who gained power by winning free elections. The voting public in many leading countries seems ready to support governments that do away with civil liberties, the protection of basic human rights, and even move to subvert the independence of the judiciary and legislative branches of government. Some of the policies of such autocratic leaders violate fundamental norms of international law as when a minority is persecuted by ethnic cleansing or genocidal policies, or in more limited ways by denying rights of free expression to dissenting voices in the media, among opposition leaders in and out of government, and at universities.

 

In such circumstances, it remains useful for supporters of true freedom to be able to appeal to international law as an authoritative yardstick by which to assess the government behavior alleged as being abusive. In this regard, the recourse of Gambia to the International Court of Justice to challenge the genocide of the Rohingya by the government of Myanmar. Similarly, the current effort of Palestine to persuade the International Criminal Court to investigate alleged crimes against humanity committed by Israel against the Palestinian people is illustrative of the political significance of international law even if unable to regulate the offending behavior. These are both high profile instances of apparent international crimes that could otherwise be hidden behind the heavy curtain of national sovereignty. The guidelines of international law are crucial in raising the voices of public opinion and even some government on such issues of moral salience in an effective manner, and essential to gain access to international institutions in some circumstances of state crime so as to challenge, and at least document, criminality in an influential manner.

 

By pointing out such options, it is not meant to suggest that the leadership in Myanmar or Israel will necessarily repudiate their past policies, or alter their abusive behavior. What is achieved is some lessening of legitimacy, and this may matter enough to moderate and deter, if not transform behavior. More liberally inclined governments may be less likely to enter favorable relationships or agree to participate in cultural or sporting events with gross offenders of human rights and basic legal norms. These kinds of subtle acknowledgements of wrongdoing do have an impact, although rarely acknowledged, until some momentous change unexpectedly takes place, as for example when South African apartheid submitted to international pressure and dismantled apartheid. An interesting legal example occurred back in the 1980s when the United States was mining the harbors of Nicaragua to exert unlawful pressures on a Marxist-oriented government in control of this tiny country. The Nicaraguan Government could not hope to challenge by force American policies that seemed to violate the rule of international law that condemned all uses of international force other than in carefully defined instances of self-defense, but it did have recourse to the International Court of Justice due to an obscure treaty that conferred such an option if a dispute between the two governments could not be settled by direct negotiations. The U.S. refused to participate in such a judicial proceeding, but despite this, the World Court in The Hague accepted the case, and a majority of its judges agreed that Nicaragua had a convincing legal grievance, and so declared. The U.S. judge on the highest UN judicial tribunal defended the American policies, and Washington denounced the decision. And yet, a few months later the U.S. stopped mining Nicaragua’s harbors, and in effect, covertly complied with the decision upholding the applicability of international law.

 

Even Myanmar mounts its strongest possible defense by hiring a team of Western international law experts to present its case. Israeli strategists and think tanks warn the government that attacks on the legitimacy of Israel, that is undertakings complaining about its flagrant lawlessness, are bigger threats to Israeli security than is the Palestinian armed struggle. Having law and morality on one’s side has proved a bigger overall asset in violent political conflicts since 1945 than dominating the battlefield. The United States lost the war in Vietnam during the 1960s despite controlling the conventional military dimensions of the conflict, as did the Soviet Union when it intervened more than a decade later in Afghanistan. The major governments in the world are slow to learn from this kind of failure because militarism is embedded in their governing DNA. This reflects the outmoded faith in military superiority as the principal engine of history as well as the bedrock of national security. What is overlooked is that ever since World War II, people not armies have won the characteristic conflicts of the last 75 years, and their highest aspirations for self-determination and independent political statehood have been aligned with international law. In this sense, large states, as well as small and medium states, would themselves be much better off if their policies in the war/peace and security areas adhered to international law guidelines rather than followed the discretionary dictates and spending priorities of hard power realists. To the extent this assessment of the changed role of power in international relations is correct, China stands out as comprehending the benefits of embracing soft power realism, by way of trade, investment, and clever diplomacy is the manner to expand influence and raise stature in the 21st century. In this fundamental sense, international law, which can be conceived of as aa soft power calculus in relation to the use of force, has an untested potential to guide governments and their citizens toward a peaceful, prosperous, and ecologically sustainable future, but only if militarist myths and military/industrial/media complexes are discarded.

 

International law also provides the weak and vulnerable with a means to build support for their struggles against abusive uses of state power, including finding law-related ways to resist autocratic leaders who rely on regressive ‘lawfare’ to stifle political dissent and suppress freedom of expression. For instance, those victimized can appeal their cases to special rapporteurs of the UN Human Rights Council who can give political visibility, moral/legal credibility, and sometimes exert effective pressure on governments alleged to be violating basic rights. The elected autocrat of the Philippines, Rodrigo Duterte, uses his manipulation of the legislative and judicial branches of government to frame and imprison political opponents and dissenters, while solidarity initiatives respond by invoking international law standards and procedures to challenge such unlawful behavior, in effect, recourse to progressive lawfare tactics.

 

Finally, civil society activism formulates its agendas, and builds its support, by illuminating the lawlessness of governments, especially in relation to geopolitical actors that enjoy effective impunity under international law. There are many such uses of international law, going back to the tribunals on the Vietnam War organized in the late 1960s with the backing of Bertrand Russell, passing legal judgment on the violations of Vietnamese sovereignty by American-led military intervention. Another notable example was the Iraq War Tribunal of 2005 held in Istanbul, bringing together legal experts and moral/cultural personalities to pass judgment on the spurious claims that the U.S./UK military attack and occupation of Iraq were consistent with fundamental norms of international criminal law. Such a legal proceeding did not end the occupation but it strengthened the political will of those who opposed such policies as well as providing a documentary record of geopolitical lawlessness that could not be compiled if an international legal framework did not exist and enjoy the formal endorsement of those states whose behavior was being judged.

 

In the end, we can and should still lament the shortcomings of international law, but if we seek an international order that respects rights and is more peaceful, it is vital to appreciate the present and potential role of international law. It can offer constructive policy guidelines for policymakers and leaders, better aligning foreign policy with national interests given the increasing limits on the utility of military force under contemporary condition. It also allows civil society activism to ground their solidarity initiatives on a foundation of international law rather than on mere political passion, and can serve to deter some governments from pursuing policies that violate international human standards and would likely weaken their reputation as responsible members of world society. The work of some international NGOs, such as Amnesty International and Human Rights Watch, not only depends on the existence of legal standards, but shows that many powerful governments care enough about their reputations at home and abroad to curb their lawlessness if confronted by prospects of exposure. Of course, it would be wrong to expect too much from a reliance on international law in this period when even those states that claim the legitimacy of political democracy are choosing leaderships and adopting policies that defy such values and practices. Many of us are discovering that procedural democracy, as principally expressed by free elections and independent political parties, offers little assurance that the political winners will adhere to the rule of law, that is, the norms and institutional arrangements of substantive democracy, when in positions of political authority. Such disillusionment is accentuated by the growing evidence that such leaders retain their popularity with the citizenry even when they are unscrupulous lawbreakers. And, of course, less political and moral friction is present when the laws being twisted or broken pertain to foreign policy. International law is not reinforced at this point by strong populist expectations of compliance, although rule of law considerations may be invoked when a state is targeted for intervention or sanctions.

 

 

Meeting Grand Ayatollah 41 Years Ago

15 Feb

 

[Prefatory Note: In February 1979, along with two others, I had a meeting with Ayatollah Khomeini. The post below is an edited text of an interview by two Iranian journalists, Maryam Khormaei & Javad Heiran-Nia, which was published a few weeks ago in Iran. As few Westerners had such an opportunity to meet the leader of the Iranian Revolution in a relatively relaxed atmosphere and for an ample length of time, there seemed interest in Iran and elsewhere in my recollections of that meeting. At the time, it was one of the first extended discussions with this mysterious individual who led the revolution from exile, first from Najaf, Iraq, and during its final stages from Paris. One cannot help but wonder about what this religious leader would say of Iran, the world around him, given the passage of more than 40 turbulent years. It seems his leadership in the early post-Shah period set the Islamic tone for Iranian political life and established a theocratic structure that has persisted for four decade, despite periodic protests, yet achieving durability even in the face of persistent efforts to destabilize the government, accompanied by coercive steps taken by its regional and global adversaries to promote regime change. Israel, Saudi Arabia, and the United States have continuously confronted Iran, imposing sanctions and threatening military action. Efforts of the West overtly focused on preventing Iran from acquiring nuclear weapons, and this goal seemed well within reached as a result of energetic diplomatic efforts during the Obama presidency. Since Trump became President in 2017 progress toward normalization has ended, and been sharply reversed. Tensions have steadily mounted after the U.S. withdrew from the agreement and Iran gradually discontinued compliance with the breached treaty. As of now, the danger of war cannot be ruled out. I doubt that the situation would be much different if the Supreme Guide of Iran was still Imam Khomeini rather than his successor, Ayatollah Ali Khamenei. The nuclear proliferation issue is not the only concern of Iran adversaries. Iran’s additional influence in the region and indeed the persistence of an anti-Western outlook in Tehran have kept burning the fires of confrontation.]

 

Interview Questions February 1979 Meeting with Grand Ayatollah Ruhollah Khomeini

 

-Toward the climax of Iran’s Islamic revolution, as a member of an American      delegation, you visited Iran. What were the objectives of that trip?

Response: I was chair of a small committee in the United States with the name, “Committee for the Defense of Human Rights in Iran,” which sponsored events with Iranian students and arranged university speaking visits for some prominent Iranian political figures living in the United States. Our efforts became active within university settings as the revolutionary movement in Iran gathered momentum during 1978.

The Committee had almost no funding, but had dedicated members, and achieved a certain visibility as there was so little attention being given to these historic developments in Iran unfolding with increasing intensity as the months passed. The treatment of these issues in the Western mainstream media was not only mostly very pro-Shah but also quite uninformative, and even uninformed, and minimized the political challenge being posed by this popular uprising.

It was in this context that I received as chair of the Committee an invitation from Mehdi Bazargan to visit Iran as part of a delegation of three persons for a period of two weeks. I was also invited to find two other persons to form the delegation. The stated purpose of the visit was to convey to selected Americans a better understanding of the revolution underway. I felt that it was important to accept this invitation precisely for the reasons given in the letter of invitation. Our objective, then, was to achieve a clearer understanding of the nature and objectives of the revolutionary movement in Iran, and do our best after returning to share the experience and our impressions as widely as possible, and this is what we did.

In this spirit I tried hard to find two persons who would benefit from such a visit, possessed an open mind toward the challenge being posed to imperial rule in Iran, and had some access to and credibility with media and influential audiences back in the United States. My first two choices both agreed without hesitation or conditions to join the delegation. Ramsey Clark was my first choice. He had been prominent in government, having been Attorney General, was part of a well-known American political family, and had quite recently even been considered as a possible Democratic candidate for the American presidency. Besides being extremely intelligent, Ramsey had a high profile that generated media attention and he had a well-deserved reputation for courage and integrity, quietly telling America unpleasant and inconvenient truths without mincing his words.

My second choice was Philip Luce, a prominent religious activist who achieved world fame by his public acts of civil opposition to the Vietnam War. Phil gained widespread notice in the late 1960s when he evaded official protocol to show a visiting group of American Congressmen ‘the tiger cages’ in a Saigon jail used by the government to torture political prisoners. Like Ramsey, Phil was a person of unquestioned integrity, and fearless in searching for the truth in controversial political settings.

The three of us made the trip without deep prior personal associations, although we had known and respectd each other and were friendly, having cooperated several times in the past on anti-war political projects. During the somewhat arduous trip to a country in the midst of a popular revolution, we got along very well, and enjoyed each other’s company, despite the extremely tense times we experienced in Iran. We also cooperated in sharing our impressions subsequent to the trip.

 

-How different was what you witnessed in Iran from the US media narratives about      the Iranian revolution’s character?

Response: The differences were dramatic, and rather disturbing. The US media conveyed very little understanding of the character of the movement in Iran, and was perplexed by its strength and outlook. At the time, the Shah’s government was a close ally of the United States in the midst of the Cold War, and Iran’s strategic location with respect to the Soviet Union made it very important to Washington to keep the Shah’s regime in control of the country. As well, the US Government, having played an important role by way of covert intervention in the 1953 coup that restored the Shah to the Peacock Throne displacing a democratically elected leader, there was a particularly strong commitment made in Washington to doing whatever was necessary to crush this nonviolent mass movement led by a then still rather obscure religious figure living in exile, and portrayed as a remnant of the Middle Ages. It was deemed unthinkable within the United States government that such a seemingly primitive movement of the Iranian people could produce the collapse of the Iranian government that had formidable military and police capabilities at its disposal, possessed a political will to use lethal ammunition against its own people when challenging the government in a series of unarmed demonstrations. The Shah’s government had also gained the geopolitical benefits of a ‘special relationship’ with the most powerful state in the world, and in return was deeply invested in upholding the regional and global interests of the United States. In such a setting Western media was uncritical, reflecting the propaganda and ideological outlook of the government, and was not a source of independent and objective journalism. There was some confusion arising from the fact that Islamic forces had been seen as anti-Marxist and anti-Soviet, and until the Iranian developments, were not seen as a threat to Western interests.

It was in such an atmosphere that we hoped that we could bring some more informed and realistic commentary on the unfolding revolutionary process in Iran, including identifying its special character as neither left nor right, seemingly led by a religious leader who remained virtually unknown in the West. It was even unclear to us at the time of our visit whether Ayatollah Khomeini was the real leader of the movement or only a temporary unifying figurehead, whose political role would end as soon as the Shah was removed from power. We hoped to provide some insight into such questions, as well as to understand whether the new political realities in Iran would produce confrontation or normalization with the United Stats. Was the U.S. now prepared, as it was not in 1953, to live with the politics of self-determination as it operated in Iran or would it seek once more to intervene on behalf of its geopolitical agenda and in support of its political friends?

Indeed, we did have some effect on the quality of Western media coverage of the developments in Iran. Ramsey Clark and myself were invited to do many interviews and asked to describe our impressions of what was happening in Iran by mainstream TV channels and print outlets. As a result, at least until the hostage crisis in the Fall of 1979, discussion of Iran politics became more informed and some useful political debate emerged, at least for a while, on the implications of this Islamic challenge to the entrenched Iranian political and economic leadership.

 

-You met the then Prime Minister of Iran Shapour Bakhtiar on the same day when Mohammad Reza Pahlavi left Iran. What was Bakhtiar’s assessment of the developments including Shah’s departure?

Response: We had the impression from our meeting that the Prime Minister was himself uncertain about the situation and his own personal fate. Of course, we met with Mr. Bakhtiar at a tense time, only a very few hours after the Shah was reported on the radio as having abdicated, abandoning his throne by leaving Iran, seeking asylum. Bakhtiar had a reputation. of being hostile to intrusions of religion in the domain of politics, and had a personal identity strongly influenced by French culture along with its very dogmatic version of secularism. When we met, the city of Tehran was in a kind of frenzied mood, with cars blowing their horns in celebration, and posters of Khomeini appearing everywhere. We had trouble maneuvering through the traffic so as to keep our appointment in the official office of the Prime Minister.

We found Mr. Bakhtiar cautious and non-committal, and possibly intimidated, not by us, of course, but by the dozen or so others in the room who were never introduced, and wore clothes associated I our minds with security personnel. We assumed that at least some of these anonymous individuals were from the SAVAK, and maybe explained partly why Bakhtiar seemed so uncomfortable and nervous while talking with us. When we asked his help in arranging a visit to prisoners confined in Evin Prison, he seemed unsure of his authority to deal with our request until he received guidance from one of the official advisers present in the room. After a short, whispered instruction, the Prime Minister told us that a visit could be arranged on the following day so that we could meet with the political prisoners, but that we would not be allowed to enter the part of the prison reserved for common criminals. We were surprised by this manner of imposing a limitation. We had, if anything expected the opposite, permission to meet with the common criminals but not the political prisoners. After being at the prison, we realized why this distinction has been made. The political prisoners seemed treated reasonably well, possibly because regarded as members of a future ruling elite, while the ordinary criminals held no interest for the governing leadership past or present, and were confined to crowded cells often with no windows. Although we only met with political prisoners, we walked through the prison past the cells holding common criminals, with ample opportunity to note how bad were their living conditions.

Overall, we were left with not much clarity about how Bakhtiar viewed the future of his caretaker government. We had no real opinion on whether what he was saying to us with the others in the room was what they wanted him to say, or expressed his real views, or maybe reflected some sort of compromise. Would he be soon replaced, and his own role challenged as unlawful, or even criminal? We had the impression of a frightened bureaucrat lacking in leadership potential, at least under the prevailing revolutionary conditions. Maybe our impressions were distorted by the reality that our visit took place at such a tense and difficult moment of uncertainty, which soon turned out to be transformative for the country and its people. As a result, my impressions of this sad and entrapped individual may leave too negative a picture of his political character. A day or two earlier or later might have produced a quite different set of impressions.

 

  • What was the Central Intelligence Agency’s assessment of the Iranian revolution’s developments? Did CIA have a lucid exact assessment of the revolutionary forces and Iran’s future political system?

Response: As far as we could tell, we had no direct contact with the CIA, but did meet with the American ambassador to Iran at the time, William Sullivan, who despite being a diplomat had a counterinsurgency background with a militarist reputation. He gave us a briefing that was much more illuminating as to Iranian developments than was our meeting with the Prime Minister a few days earlier. Sullivan acknowledged that the U.S. was caught off guard by both the character and the strength of the movement, and was struggling to keep up with events. He told us that the Embassy had previously constructed no less than 26 scenarios of political developments that might threaten the Shah’s leadership, but not one was concerned about a threat to the established order mounted by an Islamically oriented opposition. The American preoccupation, reflecting Cold War priorities, limited its concerns to containing the Marxist and Soviet-oriented left, and the belief that to the extent there was a political side to Islam it was aligned with the West, sharing its anti-Communist agenda as seemed evident in the setting of the Soviet intervention in Afghanistan.

 

Somewhat to our surprise, Sullivan spoke of his acute frustrations in dealing with the Carter presidency, especially with the National Security Advisor, Zbigniew Brzezinski, who he claimed to be unwilling to accept the finality of the Shah’s loss of power or of the outcome of the revolutionary movement. Sullivan told us that he advocated coming to terms with the emerging new realities as representing America’s national interests, but he spoke very clearly of the resistance to this view at the White House. Sullivan partly attributed this stubbornness to the influence of the Iranian ambassador on. Brzezinski, a view later confirmed to me by frustrated State Department officials.

 

  • What were the issues discussed at a meeting you had in Neauphle-le Chateau with the late Islamic Republic’s founder Ayatollah Khomeini and how would you describe his personality?

 

Response: We met for a long time, maybe three hours, and covered many issues. During the conversation, after some rather long introductions on our sides about our experiences in Iran, we listened and responded to concerns expressed by Ayatollah Khomeini. After that we posed a series of questions. I will mention here a few topics discussed that have a lasting interest.

Ayatollah Khomeini’s initial preoccupation and understandable concern was whether the U.S. Government would try to repeat the intervention of 1953 or would be prepared to live with the outcome of the revolution. Of course, we were not in a position to give anything other than a guess. We did think there was less disposition by the U.S. to intervene than 25 years earlier, given the lingering sense of failure associated with the Vietnamese intervention. At the same time, we realized the strategic importance attached to keeping Iran allied to the U.S. in Cold War contexts and of the personal as well as ideological closeness between Carter and the Shah, especially after the Carter family spent New Year’s Eve in Tehran as the Shah’s guest in 1978, and Carter made his famous toast about the Shah being surrounded by the love of his people.

Ayatollah Khomeini was also concerned about whether the military contracts with the United States would be fulfilled now that there would be a change of government in Iran. This line of questioning gave us a sense that Ayatollah Khomeini had a rather practical turn of mind, and followed rather obscure policy issues closely.

At the same time, this victorious leader volunteered the view that he hoped that soon he would be able to resume his religious life, and explained his intention to take up residence in Qom rather than Tehran, which seemed consistent with such an intention. Ayatollah Khomeini told us that he has reluctantly entered politics because in his words ‘there was a river of blood between the Shah and the people.’

When we asked about his hopes for the revolutionary government, this religious leader made clear that he viewed the revolution as an Islamic rather than an Iranian occurrence, that is, a civilizational rather than a national triumph. He stressed this interpretative perspective, but without any sectarian overtones. He did go on to say that he felt that the basic community for all people in the Islamic world was civilizational and religious, and not national and territorial. Ayatollah Khomeini explained in ways I subsequently heard from others in Iran and elsewhere, that territorial sovereign states built around national identity did not form a natural community in the Middle East the way they did in Europe.

Ayatollah Khomeini also made clear to us that he viewed the Saudi monarchy was as decadent and cruel to the people as was the Shah, and deserved to face the same fate. He felt that dynastic rule had no legitimate role in Islamic societies.

We also asked about the fate of Jews and Bahais in the emergent Islamic Republic of Iran, aware of the close working relationships of these two minorities with the Shah’s governing structure. We found the response significant. He expressed the opinion that Judaism was ‘a genuine religion’ and if Jews do not get wrongly involved in supporting Israel, they would be fine in Iran. His words on this, as I recall them, were ‘Judaism is a genuine religion, and it would be a tragedy for us if they left.’ He viewed Bahais differently because of their worship of a prophet after Mohammad, leading him to adopt the view that Bahais were members of ‘a sect’ and did not belong to ‘a true religion,’ and thus adherents of the Bahai faith would not be welcome in the new Iran. Afterwards, I learned that Ayatollah Khomeini intervened to oppose and prevent genocidal moves being advocated in relation to the Bahai minority living in Iran, but I have no confirmation of this.

 

 

  • What was the last US Ambassador to Iran William Sullivan’s mission? He is known to be an anti-riot man. Did he give any intellectual help to Iran military or SAVAK (the secret police, domestic security and intelligence service in Iran during the reign of the Pahlavi)?

Response: Of course, Sullivan never would tell us about his covert activities, nor did we ask. He had the reputation of being ‘a counterinsurgency diplomat’ as he had served in Laos as an ambassador during the Vietnam War. It was at a time that the embassy was being used to take part in a Laotian internal war that included directing US bombing strikes against rebel forces.

With this knowledge, I was invited to testify in the U.S. Senate to oppose Siullivan’s confirmation a year or so earlier. Unfortunately, my testimony did not prevent him from being confirmed as ambassador to Iran, although several senators at the time indicated to me privately their agreement with my testimony, but were unwilling to oppose President Carter’s choice so early in his presidency. When in Iran I urged the meeting, and Ramsey Clark was skeptical at first, saying that he had had an unpleasant encounter with Sullivan some years earlier. I convinced Ramsey that the credibility of our trip would be compromised if we made no effort to get the viewpoint of the American Embassy. We did make an appointment, Sullivan’s first words as we entered were “I know Professor Falk thinks I am a war criminal..” Yet he welcomed us, and talked openly and at length about the situation and his efforts to get Washington to accept what had happened in Iran. In retrospect, I think he hoped we would be a vehicle for making his views more publicly known.

He made the point that there were no social forces ready to fight to keep the Shah in power. The business community, or national private sector, was alienated by the Shah’s reliance on international capital to fulfill the ambitious state development plans, the so-called ‘White Revolution.’ The armed forces were also not favorable enough to the throne to fight on its behalf, complaining that the Shah’s abiding fear of a coup being mounted against him, created distrust of his own military commanders, and led him to frequently shuffle the leadership in the armed forces. This resulted in a low level of loyalty, and helps explain why the military watched the political transformation take place without showing any pronounced willingness to intervene, despite being nudged toward aggressive action against the movement, especially in the context of a provocative visit by an American NATO general at the height of the revolutionary ferment. The general was widely reported to be exploring whether it was plausible to encourage the Iranian military to defend the established order.

 

We also asked about what would happen to the surviving leaders from the Shah’s government who had been accused of crimes against the Iranian people. Ayatollah Khomeini responded by saying that he expected that what he called ‘Nuremberg Trials’ would be organized to hold accountable leading figures from the fallen government, and some from bureaucratic backgrounds, including SAVAK officials. We wondered why this plan was not later followed, and why those from the Shah’s regime accused were often executed after summary, secret trials. We knew that some of those who had led the revolution had received support from the CIA during their period as students overseas or even when serving as mosque officials, which would be damaging and confusing if made public at a time of transition in the governing process and an accompanying anti-American atmosphere. It is important to remember that until the Islamic Revolution in Iran, Western intelligence assumed that the anti-Marxist approach of those of devout Islamic faith would make all religiously oriented personalities strong allies of Western anti-Communism, a view that persisted to some extent until after the Afghanistan resistance to Soviet intervention which was headed by Islamic forces, and was only decisively shattered by the 9/11 attacks on the World Trade Center and Pentagon in the United States.

 

 

  • Why did the liberal–Islamist groups fail to secure the support of Ayatollah Khomeini at the end of the day?

 

Response: It is difficult for an outsider like myself to comment on the internal politics in such a revolutionary period. The situation in Iran was still fluid, and worries about a counterrevolutionary coup to bring the Shah back to his throne a second time were widespread and understandable. Added to this, the change in Iran came so quickly. Several secular personalities of liberal persuasion told us that ‘the revolution happened too quickly. We were not ready.’

Ayatollah Khomeini while still in Paris, seemed originally to believe that liberal Islamically oriented bureaucrats would be needed to run the government on a day to day basis. He may have envisioned a governing process relying on technical experts, especially to achieve good economic policies and results that he thought necessary to keep the support of the Iranian masses. Such expectations seem to be not entirely consistent with the vison of Islamic Government set forth in his published lectures, available to us in English, that were written while he was living as an exile in Iraq. His insistent theme in that text was to adopt the view that a government consistent with Islamic values could not be reliably established on democratic principles without being subject to unelected religious guidance from top Islamic clerical scholars as the source of highest political authority.

We also were aware of several other explanations for this about face on the governing process. Some in Iran believed that Ayatollah Khomeini only discovered his political popularity after he returned to the country, and this made him believe he had a mandate to impose a system of government that reflected his ideas. Others offered the opinion that he became convinced by his entourage of advisors that the revolutionary spirit and agenda was being lost by the liberals, and hence were urging him to take direct and visible charge of the government to protect the Islamic spirit and substance of the revolutionary movement. And finally, there arose the view that the liberals were given a chance, and their performance disappointed Ayatollah Khomeini, leading him to reenter politics and move to Tehran to lead the country. As far as I know, this story of transition from the Pahlavi Era to the Islamic Republic remains veiled in mystery and controversy. Hopefully, before long the mystery will disappear with the appearance of more authoritative accounts of what transpired after the Ayatollah Khomeini returned to Iran.

What we do know is that what was established in this transition period has survived for more than 40 years despite being faced with threats, provocations, harsh sanctions, and even a variety of covert interventions intending destabilization. Arguably, Iran has been as stable as any country in the region, and more stable than most. This is impressive, although it does not overcome some criticisms directed at violations of basic human rights of people in Iran and its own regional expansionism.

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Making the Earth Charter Happen: A Necessary Utopia

7 Feb

Making the Earth Charter Happen: A Necessary Utopia

[Prefatory Note: The Great Transition Network (GTN), under the intellectual and organizational leadership of Paul Raskin and Jonathan Cohn within the confines of the Tellus Foundation, have been pioneers exploring the preconditions for a peaceful transition a sustainable and humane future for planetary co-existence, both among humans and for human society in relation to its natural surroundings. Such explorations have entailed an enlivened realization that without eco-consciousness the desired transition will be blocked at the start. Paul has authored some highly suggestive commentary on the overall undertaking. One stream of GTN activity consists of periodically inviting an author whose prior work is identified with some theme relating to the GT undertaking, to contribute a background paper that is then distributed to the network for invited comments. In this instance the theme chosen concerned the ethical implications of the implementation of the Earth Charter, a visionary text that set forth some decades ago the ecological foundations of a humane and sustainable future. In this instance, Brendan Mackey, authored an overview paper, and several of us were invited to contribute a comment in response, after which Brendan has agreed to respond as he sees fit. I think the GTN doing its part in facing the challenge confronting those of us seeking through action and ideas a radically transformed future that is substantially freed from war, poverty, exploitation, geopolitics, and is respectful of human rights and international law, committed to global cooperative mechanisms protective of the eco-stability and responsive to the ethics of eco-responsibility and the just distribution of obligations, as well as the spiritual sources of an affirmative planetary politics. In effect, it is a revolutionary realism that can only be fulfilled in the form of a ‘necessary utopia.’ Without such an aspiration consciousness, ‘The Great Transition’ will remain a pipe dream. This may sound paradoxical, but it is my way of expressing hope without underestimating the gravity and urgency of the challenge. Brendan Mackey’s introductory essay is printed after my comment, but deserves reading first.] 

 

 

 

 

Comment of Richard Falk on Brendan Mackey’s essay devoted to The Earth Charter

 

Unquestionably, this latest theme of GTN relating ethics to ecological sustainability is a crucial dimension of planetary viability for the peoples of the earth as it is even more so for those non-human beings that live and suffer together with humans throughout the world. The raging wild fires of the Australia summer have taken more than one billion animal lives should be viewed as an apocalyptic event although the lethal effects on human beings have been relatively minor, at least so far. Yet the Australian inferno is nevertheless a metaphor depicting a flaming future for humanity, and its shared destiny with the whole of nature. Beyond this, the small number of direct human casualties totally discredits and ethically undermines the kind of anthropocentric worldview that has guided modernity at least from the time of the Industrial Revolution. What we can and must learn is that human activity cannot and should not be unconditionally safeguarded at the expense of its natural surroundings. Although this might be obvious to the ecologically minded minority among us, it is not reflected in the behavioral patterns of either the public or private sectors of society, which remain in virtual denial as to the structural impacts of human activity on global ecosystems, the central explanation for regarding our time as that of the Anthropocene, distinguished by the rise of human agency with respect to planetary wellbeing.

 

Brendan Mackey and several of the prior commentators on this latest GTN theme make perceptive observations about the appropriate framework of shared values and the eco-ethical consciousness needed to meet the unmet challenges of the Anthropocene. My concern is less with configuring the ethical framework than in providing political traction to overcome the mounting dangers of catastrophic scope associated with failures to address such fundamental issues of ecological accommodation as global warming and diminishing biodiversity. What has become alarmingly evident is less the ethical deficiencies of Earth Charter subscribers than the refusals of political leaders and private sector elites to act responsibly on the basis of scientific knowledge and longer-term interests.

 

I believe that it is already widely known what should be done to achieve a transition to conditions of ecological equilibrium, but that such knowledge is not acted upon because of several imposing obstacles:

                        —short-termism: the mismatch between the accountability cycles of political, financial, and corporate leaders and officials, rarely more than a few years, and the time horizons of ecological challenges that impinge catastrophically and quite possibly, irreversibly, but are perceived, if at all, as posing insufficient immediate threats to justify expensive and controversial policy adjustments in the near term;

                        —special interests: reinforcing these short time horizons of policy-makers are a variety of influential collective entities and lobbying groups that are opposed to making adjustments because of the probable cut in profit margins or the heightening economic and political risks; for instance, the importance of coal exports in Australia exerts influence on national politicians of the party in power not to restrict coal exports as acceptable sources of energy or even to impose carbon emission controls at home, although the majority of citizens would accept such adjustments;

                        —ideological and religious dogma: capitalist thinking tends toward trusting  markets, and distrusting states and public institutions; this makes it difficult to regulate the private sector in accord with the public interest if the impingement seems major, or even to clarify the public interest as understood by science and rationality; also, fundamentalist religious doctrines generally oppose taking steps that seem to question the omnipotence of God or divine governance as expressions of hubris;

                       —emergency diversions: wartime conditions, or situations of political tension and civil strife, as well as acute economic stress resulting from food insecurities or disease epidemics divert attention from the more abstract threats of climate change or loss of biodiversity;

                        —technophilia: the widespread sense in the private sector that technology will provide solutions when ecological problems reach a crisis stage.

 

Against this background, the Earth Charter is a helpful counter-ideological text that enlightens us as to the ethical foundations of what should be and needs to be done to uphold planetary viability, but it fails to take the indispensable next step, which is to depict the politics that might make these values operational on a sufficient scale as to meet the challenges and safeguard the human and non-human future of living together on one earth in a benevolent fashion. In this sense, the Earth Charter and kindred expressions of ecological worldviews has established an overall ethical consensus. This consensus has affected public opinion, as reinforced by the increased frequency of such adverse experiences as extreme weather events, droughts, floods, fires, mass migration. Despite such developments, there still is an insufficient political will or atmosphere of urgency to address with resolve and fidelity to the precautionary principle. As a result, the root causes of these Anthropocene challenges are not being addressed in the spirit of the GTN ethos.

 

Depicting the ethical framework is useful, but what makes change happen on such a momentous scale has to be more transformative in spirit and substance, which depends on nothing less than what has sometimes been called ‘a second Axial Revolution.’ Perhaps, a better formulation is to speak of the need for ‘a civilizational rupture,’ the break with the expansionary vision of modernity, and its replacement by an ecologically crafted civilizational experience that is highly sensitive to the ecological limits and positive potentialities of the Anthropocene. Such an eco-political transformation of values postulates a radical civilizational future that is neither predictable, nor achievable by normal procedures of advocacy and political agitation. We know what needs doing, but not yet how to get it done. To exhibit urgency may catalyze a movement with transformative energy, and so all efforts to align with an earth-centered worldview can be considered as preparation for the hard work ahead to ensure species survival and a new ecological equilibrium. The Earth Charter as a political action document enjoys the status of being ‘a necessary utopia.’

 

 

 

Toward a Great Ethics Transition: The Earth Charter at Twenty

Brendan Mackey

 

Why a Common Ethical Framework

Seventy-two years ago, in 1948, the newly created United Nations General Assembly adopted the Universal Declaration of Human Rights. With a catastrophic war fresh in people’s memory, the recognition of the “inherent dignity and of the equal and inalienable rights of all members of the human family” augured a sound ethical foundation for a hopeful future. Although the subsequent decades saw the tension and tumult of the Cold War (and some hot ones), a new internationalism was also on the upswing.

 

Since then, a profusion of declarations and charters have sought to establish normative ethics based on universal values and principles presumed to be shared by all people, nations, and cultures. This includes, among others, the Stockholm Declaration (1972), the World Charter for Nature (1982), the Rio Declaration (1992), the Earth Charter (2000), the United Nations Declaration on the Rights of Indigenous Peoples (2007), the Draft Universal Declaration of the Rights of Mother Earth (2010), and the Principles of Climate Justice (2011).

 

The proposition that there are universal ethical values and principles shared among all the Peoples of the world remains contested and, in some respects, rightly so. Post-modernist critics warn us that a single idea universally applied can ignore local contexts and swallow up the diverse values that reside in the richly textured tapestry that is the hallmark of human society and our biocultural relationships. However, between the bookends of absolutism (where there is only one truth) and radical relativism (where everything is subjective) lies a pluralism that leaves open the question of which of our many choices are valid and justified.[i] From this perspective, normative ethics seeks principles to guide moral conduct when considering the right and wrong thing to do in specific contexts, and accepts that there are serious consequences from our actions (and inactions) that can be objectively assessed.

 

A universal ethical framework may seem like a distant hope given the growth of populist authoritarianism and a narrowing interpretation of national self-interest. However, the multiple global threats and pressures we collectively face demand global solutions and unprecedented levels of international cooperation among national governments, across all sectors and between all Peoples. Any such systemic transformation will require a roadmap guided by shared values about what we want the future to look like and an agreed set of normative ethical principles to provide the necessary moral guidance.

 

The Earth Charter Story

 

The Earth Charter, now nearing its twentieth anniversary, remains one of the most sweeping efforts to define such a global ethic. Its origins date back to the 1987 report of the World Commission on Environment and Development (or “Brundtland Commission”), entitled Our Common Future, which recommended the creation of a new international charter with principles to guide the transition to sustainable development. Maurice Strong, one of the report’s draftersand a former executive director of the UN Environment Program, followed through on this recommendation by putting the drafting of an Earth Charter on the agenda of the 1992 Rio Earth Summit, for which he was Secretary-General. The international community however, passed on this opportunity, instead supporting the package of “Rio Commitments.” Following the Earth Summit, Strong, together with Mikhail Gorbachev working through Green Cross International, and with support from the Dutch government, launched in 1995 a project to draft an Earth Charter as a civil society initiative.Extensive consultations on Earth Charter principles were conducted through 1995 and 1996, followed by the establishment of an Earth Charter Commission, comprised of respected sustainability leaders. In 1997, a drafting committee was formed, and the drafting process began. Importantly, the Earth Charter Commission retained control of the text of the Earth Charter and has never considered changing or adding to the text, nor has it established a procedure for doing this. Over the next four years, a growing network of national committees, civil society organizations, experts in various fields, and concerned and interested individuals weighed in via a series of global, regional, and national consultations.

 

The drafting process aimed to develop a text based on an analysis of existing international law and declarations, including those by civil society, and met with stakeholders across the globe to reach agreement on a document that reflected a global consensus on shared values and principles for a more just, sustainable, and peaceful world. In March 2000, the Commission met at the UNESCO headquarters in Paris to finalize the document, and the Earth Charter was formally launched in ceremonies at The Peace Palace in The Hague.[ii]  Earth Charter International (ECI) was subsequently established, comprising the ECI Secretariat, its Education Center, and the ECI Council, to carry the work forward. The ECI Secretariat, based at the United Nations-mandated University for Peace in Costa Rica, aims to promote the mission, vision, strategies, and policies adopted by the ECI Council. The Charter has been translated into over forty languages and endorsed by over 7,000 organizations, including UNESCO and the International Union for Conservation of Nature (IUCN).

 

The Earth Charter is a rich text, consisting of sixteen main principles and sixty-one supporting principles organized into the four themes: Respect and Care for the Community of Life; Ecological Integrity; Social and Economic Justice; and Democracy, Nonviolence, and Peace. These principles are bookended by a preamble and a concluding statement called “The Way Forward.”  The Earth Charter drafting processes aimed to articulate a world ethic that complements and builds on those ethical norms situated within specific cultural and geographical contexts. Although the final product was sweeping in scope, the drafting process did still draw boundaries, for example, by limiting the text to ethical values and principles for which there was evidence of a broad and diverse base of support either in civil society or in formal intergovernmental instruments. As a result, the Earth Charter remains a document of its time. While originally conceived as an ethical framework for national governments, as a Peoples’ Charter, the Earth Charter does not specify what particular responsibilities fall upon which actors and sectors of society. And, while outlining the major global challenges at the time, it does not identify the root causes of our crises.

 

The Earth Charter’s ethic reflects an ambitious effort to bring together ecological and social concerns within one framework, mindful of humanity’s special relationship with our planetary home and the greater community of life. The Earth Charter recognizes that achieving social and economic justice will require both ensuring ecological integrity as well as the rights to freedom of opinion, expression, peaceful assembly, association, and dissent—among other things. As a global ethic, the Earth Charter has the characteristics of what Nigel Dower calls a rooted and ecologically sensitive cosmopolitanism. It is a covenant that defines an overarching way of life and answers the question of how to construct our lives together such that all life flourishes. From this perspective, the Earth Charter can be seen as a voluntary, unconditional commitment to our relationships with other persons, nature, and those things recognized as embodying the goodness, rightness, and truth of our being, and the moral obligations required to maintain and fulfill these relationships in the midst of the inevitable uncertainties and contingencies we face.

 

The Next Twenty Years

The Earth Charter opens with the statement that “We stand at a critical moment in Earth’s history, a time when humanity must choose its future.”’ The urgency of this moment cannot be exaggerated: global warming, just one of many crises we face, is already causing systemic disruptions and heading past the 1.5 °C threshold necessary for a livable planet by 2040 and well beyond 3 °C by the end of this century. The integrity of our systems of governance is cracking, and current institutional arrangements are struggling to provide the necessary regulatory oversight.

 

Achieving sustainability will also require lifelong commitment by people of courage, acting individually and collectively in their communities and polity, to make judgments about what is right and wrong in human affairs and take the actions needed to advance that which is judged good and just. We cannot rely on the notion that good will inevitably prevail because it is divinely pre-ordained or inevitable given a rising tide of cosmic consciousness, notwithstanding the importance of each person’s spiritual development.

 

The Earth Charter, and its sister declarations of universal ethical values and principles, can be put to work in meeting our collective challenges. All political and economic decisions and policies, however apparently pragmatic such as matters of trade and defense, entail ethical considerations. We need to normalize the idea of calling out the ethical dimensions of public and vested interest responses to the urgent problems of our time, including the climate and biodiversity crises, and subjecting them to critical moral evaluation.

 

Global economics and its governance could be fruitfully aligned with Earth Charter principles. We need to build systems that are supportive of the greater community of life and the interdependence of people and nature. The scope of the problem suggests the need for a new World Environment Organization mandated with a trusteeship function over global public goals and common goods, with the Earth Charter articulating the ethical basis of these trusteeship duties. Although the idea of new international institutions swims against the prevailing current, we will not have the “green economy” we need without a new economic vision and the institutional means to regulate private abuse of the global commons and goods held in common. [iii]

 

In addition to new institutions, we also need ongoing dialogue about ethics. The Earth Charter recognized this, asserting, “We must deepen and expand the global dialogue that generated the Earth Charter, for we have much to learn from the ongoing collaborative search for truth and wisdom.” Much has happened in the two decades since the launch of the Earth Charter that has enriched and added to the global dialogue on ethics and sustainability, in both formal policy forums and in civil society deliberations. Furthermore, many problems, such as climate change, have grown in scale and urgency, and others, such as the disruptions caused by technological innovations, have arisen, straining political and economic systems. The lexicon of sustainability has expanded in response to these developments. One example is the influence of First Nations worldviews, values, and principles in national and international policy and law. The term “Mother Earth” has now received formal recognition through the UN General Assembly’s adoption of a resolution to designate April 22 as International Mother Earth Day, and Mother Earth is referred to in the Paris Agreement on climate change.  The Earth Charter’s section on ecological integrity is also in need of updating to incorporate more recent concepts that are now central to our understanding of global sustainability, such as “planetary boundaries” and the “Anthropocene.”

 

If the promise of the Earth Charter is to be realized, a platform is needed to facilitate ongoing dialogue around the ethical dimensions of the urgent global problems we face, the application to them of accepted ethical norms, as well as the search for new universal norms and principles to guide our responses. This undertaking raises a number of practical questions, such as who would lead the effort, and what organization has the credibility and is in a position to organize and conduct the kind of inclusive international dialogue that would be required? This would have to be much more than just an archiving exercise but a process of deliberative and engaged dialogue from which is forged ethical principles of a covenantal nature.

 

My call for enabling the Earth Charter to speak directly to critical contemporary events and policy issues and for continuing the global ethics dialogue that led to the Earth Charter is not alone: many persons who have played significant roles in the Earth Charter movement since its inception in the 1990s have likewise argued for its importance.[iv] There are thousands of citizens as well as experts in every country of the world who are eager to participate in a renewed global ethics dialogue, and with the potential to empower the Earth Charter and its vision for the great transition we so desperately need.[v] All that is lacking is a formal procedure by which this can take place, underwritten by a strong international institutional base, and the leadership that can assure its credibility and inspire worldwide participation.   

 

Twenty years ago. Kamla Chowdhry, one of the founding members of the Earth Charter Commission, asked, How can we ensure that ethical and spiritual values get a fair hearing with the economist, technologist, and the industrialist? How do we weld economics with ethics, and have a technology with a human face?[vi] Answering those questions remains central to our efforts today for a more just, sustainable and peaceful world.

           

 

[i] Phillip Selznik, The Moral Commonwealth: Social Theory and the Promise of Community (Oakland: University of California Press, 1992).

[ii] Steven Rockefeller led the drafting process. Earth Charter Commission members included Kamla Chowdry, Mohamed Sahnoun, Henriette Rasmussen, Mercedes Sosa, Erna Witoelar, Wangari Maathai, Pierre Calame, Leanardo Boff, Rudd Lubbers, and HRH Princess Basma Bint Talal.

[iii] Klaus Bosselmann, Peter G. Brown, and Brendan Mackey, “Enabling a Flourishing Earth: Challenges for the Green Economy, Opportunities for Global Governance,” Review of European Community & International Environmental Law 21 (2012): 23-39. Also see discussion in Klaus Bosselmann and J. Ronald Engel, eds., The Earth Charter: A Framework for Global Governance (Amsterdam: KIT Publishers, 2010).

[iv] Peter Burdon, Klaus Bosselmann, and Kirsten Engel, eds., The Crisis in Global Ethics and the Future of Global Governance: Fulfilling the Promise of the Earth Charter (Northampton, MA: Edward Elgar, 2019).

[v] J. Ronald Engel and Brendan Mackey, “The Earth Charter, Covenants and Earth Jurisprudence,” in Exploring Wild Law: The Philosophy of Earth Jurisprudence, ed. Peter Burdon. (Cambridge, MA: Wakefield Press, 2011), 313-323.

[vi] Kamla Chowdhry, Challenges of the 21st Century: Gandhi’s Moral Imperative (National Foundation for India, New Delhi, 1998).

HUMANITY 10:3–HUMAN RIGHTS AND GLOBAL INEQUALITY

4 Feb

 

Posted is a promotional flier for issue 10:3 of the journal Humanity that consists of a symposium focusing on questions of human right and global inequality.

 

Trump/Netanyahu Diplomacy: Orientalism by any Other Name

1 Feb

[Prefatory Note: Based on Javad Heiran-Nia’s Interview (1 Feb 2020) on ‘the deal of the century.’]

Trump/Netanyahu Diplomacy: Orientalism by Any Other Name

1-Trump announced at the unveiling of the Deal of the Century, insisting that these proposals are a just plan for peace. Do you think that this plan serves Palestinian interests?

 

This so-called contribution to ‘peace’ requires Palestine to give up its most fundamental rights, and accept a permanent condition of subjugation and victimization. It is framed in such a one-sided pro-Israel manner as if designed to ensure its instant and overwhelming rejection by Palestinian government representatives and by Palestinian public opinion. The plan is nothing other than a thinly disguised geopolitical power play as overseen by Netanyahu and Trump to promote their own political agendas and safeguard their leadership positions, which are currently under fire in both Israel and the United States.

The Trump Plan perpetuates, institutionalizes, deepens, and seeks to validate the current Israeli apartheid state, and also purports to extend legal protection by conferring Israeli sovereignty to land-grabs of those Palestinian territories that have languished under occupation and a variety of Israeli encroachments ever since 1967. The plan reduces Palestinian legitimate presence from the 22% under occupation after the 1967 War to a 15% remnant, essentially the urban Palestinian communities in the West Bank and some uninhabitable land in the western Negev.

 

 

2-One of Trump’s goals for unveiling the plan is to help Netanyahu get rid of his internal troubles. Does this help Netanyahu get into power in Israel, given his possible trial?

 

It seems to express the view, likely to be popular with some voters in Israel, that Netanyahu was able to twist Trump’s arm, as no other Israeli politician could have done, sufficiently to achieve almost everything that the Zionist Movement ever dreamed of achieving—a de facto one-state solution that permanently submits all of Palestine to the direct and indirect control of Israel, declared by the Israeli Basic Law in 2018 to be exclusively the nation-state of the Jewish people, obliterating the rights and equal standing of the non-Jewish minorities. What is called ‘a state’ in the plan’s text is not a state as understood in diplomacy, as it is denied the elemental rights of a sovereign state under international law, and commits the Palestinians living under occupation to permanent Gaza-like conditions and leaves the more than five million Palestinian refugees out in the cold, denying their right of return to wherever their former residences were located.

 

 

3-What should the Palestinians do to counter this plan?

Raise their voices at the UN and elsewhere to make clear that the plan is a farce and a fraud, and worse, an international crime; demonstrate with resolve and telling slogans, including shaming the Arab countries that showed support for the deal; encourage the BDS Campaign to exert maximum pressure; ask governments and the UN to impose sanctions; seek legal confirmation of Palestinian rights at the World Court in The Hague; insist upon a new diplomatic framework to address the Israel/Palestine conflict free from the distorted and absurdly biased leadership provided by the United States over many years, including the pre-Trump period. It is clearer than ever that Palestinian rights will only be achieved by determined struggle, by isolating Israel, by global solidarity pressures, and by holding the Israeli government and its leaders accountable for imposing criminal policies.

 

4-Why have Arab countries such as Saudi Arabia, UAE, Oman, Bahrain, Egypt agreed to this plan?

 

Two main reasons: 1) these Arab governments are threatened by any democratizing movement, especially among Arabs, and fear that the achievement of Palestinian self-determination will destabilize their own oppressive governing arrangements; 2) to ensure continuing support for their anti-Iranian and Sunni regional priorities from the Trump presidency.

 

Such agreement by governing elites is not at all a reflection of popular sentiments in these countries, whose peoples continue to be strongly supportive of the Palestinian struggle, but helpless to influence their autocratic governments.

 

 

  1. 5. This plan is in contradiction with UN resolutions and there has been no consultation with the Palestinian side. How is the US and Israel going to accept Palestine?

 

The Trump Plan not only ignores international law, it makes proposals that flagrantly and defiantly violate such basic provisions as the prohibition on acquiring territory by force reaffirmed in Security Council Resolution 242. Also, by institutionalizing an oppressive governing arrangement that relies on racial discrimination, the plan institutionalizes apartheid, which is defined as ‘a crime against humanity’ in Article 7(j) of the Rome Statute that controls the operations of the International Criminal Court.

 

Israel and the U.S. will first have to agree to dismantle the apartheid elements of the Israeli state as a vital precondition for diplomatic progress toward a sustainable and just peace that reflect a commitment to the equality of Jews and Arabs, of Israeli Jews and Palestinians. Without satisfying this precondition for a peace process, it is delusionary to expect an end to a conflict over land and rights that has gone on for more than a century.

 

 

  1. 6. While Trump calls the plan fair, it has violated the rights of the Palestinian people. Is this plan feasible?

 

It is a plan so manifestly unfair as to be best interpreted as designed to fail, an outcome already prefigured by near universal Palestinian rejection. As such, the Trump/Netanyahu approach apparently relies on its capacity to impose a solution on the Palestinian people, and label it ‘peace.’ Seen more realistically, the plan is a naked attempt to declare unilaterally an Israeli victory and to make the world believe that the Palestinian struggle has become a lost cause, hoping that a kind of bribery provision to the effect that if Palestinians will admit defeat and make a formal declaration of political surrender, their life will become better if measured by living standards. The arrangements offered to the Palestinians as a whole resemble what the people of Gaza have endured since 2007 and what was attempted by South African apartheid in his latter stages through the establishment of encircled, powerless bantustans in remote areas of the country where the African population was required to live in misery and humiliation. Such schemes in the post-colonial world are recipes for violent struggle, and should not be confused with genuine attempts to move by mutual agreement from war to peace or oppression to constitutional democracy. The ‘deal of the century’ turns out to be Orientalism on steroids!