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Armenians 1915: The Genocide Controversy

19 Apr

Armenia: The Genocide Controversy

 

Of the many current concerns associated with historic wrongs, none is more salient these days than the long simmering tensions between modern Turkey and the Armenian diaspora (and the state of Armenia). And none so convincingly validates the assertion of the great American novelist, William Faulkner: “The past is never dead. It’s not even past.” This year being the centenary of the contested events of 1915 makes it understandable that was simmering through the decades has come to a boil, with the anniversary day of April 24th likely to be the climax of this latest phase of the unresolved drama.

 

The Armenian red line for any move toward reconciliation has been for many years a formal acknowledgement by the Turkish government that the killings that occurred in 1915 should be regarded as ‘genocide,’ and that an official apology to the descendants of the Armenian victims should be issued by the top political leaders in Turkey. It is not clear whether once that red line is crossed, a second exists, this one involving Armenian expectations of reparations in some form or even restorations of property and territory. For now the battleground is over the significance of granting or withholding the G word from these momentous happenings. The utterance of this word, alone, seems the only key capable of unlocking the portals leading to conflict resolution, but it is a key that Turks across the political spectrum refuse to use.

 

What has recently raised the temperature on both sides is the clear alignment of Pope Francis with the Armenian demands. At a solemn mass in St. Peter’s Basilica in Rome on April 12th that was devoted to the centenary of the Ottoman killings of Armenian Christians Francis quoted with approval from the 2001 joint declaration of Pope John Paul II and the Armenian religious leader Karenkin II to the effect that these massacres in 1915 were “widely considered the first genocide of the 20th century.” The pope’s reliance upon an earlier declaration by a predecessor pontiff was interpreted by some Vatican watchers as a subtle indication of ‘restraint,’ showing a continuity of view in the Catholic Church rather than the enunciation of a provocative new position. Others equally reliable commentators felt that situating the label of genocide within a solemn mass gave it more authority than the earlier declaration with the 1.1 billion Catholics around the world, with likely more public impact. The unusual stature enjoyed by this pope who is widely admired the world over as possessing the most influential voice of moral authority, exerting a powerful impact even on non-Catholics, lends added significance to his pronouncements on sensitive policy issues. There are some in the Catholic community, to be sure, who are critical of this latest foray into this conflict about the application of the word genocide at a delicate time. For instance, the respected Vatican expert, Marco Politi, said that Pope Francis’s comment were typical of this pope who “uses language without excessive diplomatic care.”

 

For these very reasons of salience, one supposes, the Turkish response has been strident, involving some retreat from the more forthcoming statements made just a year ago by the then Prime Minister Recep Tayyip Erdoğan. In an apologetic and conciliatory speech addressed directly to the Armenian community Erdoğan in 2014 said: “May Armenians who lost their lives in the early twentieth century rest in peace, we convey our condolences to their grandchildren.” His language in 2015 reverts to a much harsher tone, in a pushback to Francis declaring that religious leaders make a ‘mistake’ when they try to resolve historical controversies. In an effort to constructive, Erdoğan restates the long standing Turkish proposal to open the Ottoman archives and allow a joint international commission of historians to settle the issue as to how the events of 1915 should most accurately be described, and specifically whether the term genocide is appropriate. Both Erdoğan and the current prime minister, Ahmet Davutoğlu, continue to regard the core issue to be a historical matter of establishing the factual reality. The Turkish position is that there were terrible killings of the Armenians, but at a level far below the 1.5 million claimed by Armenian and most international sources, and mainly as an incident of ongoing warfare and civil strife in which many Turks also lost their lives, and hence it was an experience of mutual loss, and not ‘genocide.’

 

The almost internationally uncontested historical narrative is that the essential factual questions have settled: the Ottoman political leaders embarked on a deliberate policy of mass killings of the Armenians living in what is now modern Turkey. From this international consensus, the Armenians claim that it follows that Armenian victimization in 1915 was ‘genocide,’ the position endorsed and supported by Pope Francis, the European Parliament, and about 20 countries, including France and Russia. As might have been expected the NY Times jumped on the bandwagon by publishing a lead editorial with the headline, “Turkey’s Willful Amnesia,” as if was a matter of Ankara forgetting or a dynamic of denial, rather than is the case of selective perception, nationalism, and fears about the fragility of domestic political balance that explain Turkey’s seemingly stubborn adherence to a discredited narrative.

 

Yet there are weighty problems here, as well. The conclusion of ‘genocide’ is ambiguous. Not only did no such crime, labeled as such, exist in 1915, but there was not even the concept crystallyzed in this manner. Indeed the word was not coined until 1944 by Rafael Lemkin in his book Axis Rule in Occupied Europe, written in reaction to the crimes of the Nazis. Lemkin’s text does indirectly lend support to the Armenian insistence that only by acknowledging these events as genocide is their true reality comprehended. Consider this often quoted passage from Lemkin’s book: “I became interested in genocide because it happened so many times in history. It happened to the Armenians, then after the Armenians, Hitler took action.”

 

From a Turkish perspective, it is notable that the Nuremberg Judgment assessing Nazi criminality avoids characterizing the Holocaust as genocide, limiting itself to crimes against peace and crimes against humanity. If in 1945 there was no legal foundation for charging surviving Nazi leaders with genocide, how can the crime be attributed to the Ottoman Turks, and how can the Turkish government be reasonably expected to acknowledge it. Also in the Nuremberg Judgment there is a clear statement to the effect that criminal law can never be validly applied retroactively (nulla poena sine lege). This principle is also embedded in contemporary international criminal law. That is, if genocide was not a crime in 1915, it cannot be treated as a crime in 2015. Yet from an Armenian perspective, this issue of criminality is tangential, and is not the ground on which the Turkish narrative rests. Both sides seem to agree that what is at stake is whether or not to characterize the events as ‘genocide,’ regardless of whether genocide was a distinct crime in 1915.

 

But here ambiguity abounds on this issue of criminality. The preamble of the Genocide Convention (1950) includes language compatible with the wider import of Armenian contentions: “Recognized in all periods of history that genocide has inflicted great losses on humanity.” In effect, that the reality of genocide long preceded the conclusion of the treaty. And even the premise of prior criminality is reinforced by Article 1: “The Contracting Parties confirm that genocide, whether committed in time of peace, or time of war, is a crime under international law which they undertake to prevent and punish.” By using the word ‘confirm’ it would appear that the crime of genocide preexisted the use of the word ‘genocide’ invented to describe the phenomenon, and thus no persuasive jurisprudential reason is present to oppose redescribing the events of 1915 as an instance of genocide.

 

Such a discussion of the pros and cons of the legalities is far from the end of the debate. The pressure to call what happened to the Armenians as genocide is best understood as a pycho-political campaign to achieve an acknowledgement and apology that is commensurate with the magnitude of the historical wrong, and possibly to set the stage for a subsequent demand of reparations. The insistence on the label ‘genocide’ seeks to capture total control of the moral high ground in relation to the events by authoritatively associating the tragic experience of the Armenians with the most horrendous events experienced by others, and most particularly by the Jewish victims of Nazism. In this sense, although Nazis were not indicted at Nuremberg for genocide, the whole political effort to criminalize genocide as a crime was in reaction to the Holocaust, lending an initial credibility to the ‘never again’ pledge. In other words, only by calling the events of 1915 genocide can the issues of guilt and responsibility be resolved in accord with the Armenian narrative with sufficient gravitas. The Armenian claim is thus not to be understood as primarily expressive of a criminal law perspective, but reflects the key contention that what took place resembled what is prohibited by the Genocide Convention, and thus in this extra-legal sense is appropriately called ‘genocide,’ which functions as a way of concluding that the Armenians were victimized by the worst possible type of human behavior. And further, that no other word conveys this assessment as definitively as does ‘genocide,’ and hence the Armenian insistence is non-negotiable. Any step back from this posture would be interpreted as a further humiliation, thereby dishonoring the memory of those who suffered and opening the wounds of the past still further.

 

At present, both sides are locked into these contradictory positions. No way forward is apparent at present. Each side is hardening their positions, partly in retaliation for what they perceive to be the provocation of their adversary in the controversy. Erdoğan’s relatively conciliatory tone of 2014 has been replaced on the Turkish side by a relapse into defensiveness and denial, and the revival of the largely discredited nationalist version of the events in 2015 as a mutual ordeal. The Armenian campaign, in turn, has intensified, taking advantage of the centenary mood, and now given the strongest possible encouragement by Pope Francis. In this setting, it is to be expected that Armenians will mount further pressure on the U.S. Government, considered a key player by both parties, to abandon its NATO-oriented reluctance to antagonize Turkey by officially endorsing the view that what happened in 1915 should be acknowledged by Turkey as genocide. Barack Obama had assured the Armenian community during his presidential campaign that he believed that Armenians were victims of genocide in 1915 but has to date refrained from reiterating this position in his role as president.

 

The contextualization of this tension associated with the redress of a historical grievance is also an element in the unfolding story. There appears to be an Israeli role in deflecting Turkish harsh criticism of its behavior in Gaza by a show of strong support for the Armenian campaign. Then there is the peril in the region especially faced by Christians, the Yazidis (an ancient syncretist religion drawing on Zoroastrianism, Judaism, Nestorian Christianity and Islam, and believed by many Iraqi to be devil-worshipers) and non-Muslims, especially at risk from ISIS and other extremist groups seeking to ‘purify’ areas under their control in the Middle East. In this picture also is the rise of Islamophobia in Europe, as well as the moral panic created by the Charlie Hebdo incident and other post-9/11 signs that religiously induced violence is continuing to spread Westwards. When Pope Francis visited Turkey last November there was reported an agreement reached with Erdoğan that the Vatican would combat Islamophobia in Europe while Turkey would oppose any persecution of Christian minorities in the Middle East.

 

I have known well prominent personalities on both sides of this Armenian/Turkish divide. More than twenty years ago I endorsed the Armenian position in talks and some writings. In more recent years, partly as a result of spending several months in Turkey each year I have become more sympathetic with Turkish reluctance to apologize and accept responsibility for ‘genocide.’ Among other concerns is the credible anxiety that any acknowledgement of genocide by Turkish leaders would unleash a furious right-wing backlash in the country imperiling social order and political stability. Aside from such prudential inhibitions there are on both sides of the divide deep and genuine issues of selective perception and identity politics that help maintain gridlock through the years, with no breakthrough in sight. Augmenting pressure on Turkey as is presently occurring is likely to be counter-productive, making the Turkish hard line both more mainstream and inflexible. Indicative of this is the stand of the main opposition leader, Kemal Kiliçdaroğlu (head of the CHP) who seldom loses an opportunity to oppose the governing party on almost every issue, when it comes to the Armenian question is in lockstep solidarity with Erdoğan.

 

I see no way out of this debilitating impasse without finding a way to change the discourse. It serves neither the Armenians nor the Turks to continue this public encounter on its present path. The Turkish proposal for a historical joint commission is a bridge to nowhere as either it would reinforce the existing consensus and be unacceptable or the gridlock and be unacceptable. What might be more promising would be a council of ‘wise persons’ drawn from both ethno/religious backgrounds, and perhaps including some third parties as well, that would meet privately in search of shared understanding and common ground. A Turkish columnist, writing in this same spirit, proposes renewing the Erdoğan approach of 2014 by moving beyond sharing the pain to making an apology, coupled with offers of Turkish citizenship to the descendants of Armenians who were killed or diplaced in 1915.[See Verda Özer, “Beyond the Genocide Debate,” Hürriet Daily News, April 17, 2015] One possible formula that might have some traction is to agree that if what was done in 1915 were to occur now it would clearly qualify as ‘genocide,’ and that was done one hundred years ago was clearly genocidal in scale and intent. Perhaps, with good will and a realization that both sides would gain in self-esteem by a win/win outcome, progress could be made. At least it seems worth trying to use the resources of the moral imagination to work through with all possible good will a tangle of issues that has so long seemed intractable.

Weakening and Discrediting the UN: The Mission of Israeli QGOs

17 Apr

Weakening and Discrediting the UN: The Mission of Israeli QGOs

 

[Prefatory Note: This post is the full text of my presentation at an excellent conference “The Israeli Lobby: Is it good for US? Is it Good for Israel?” National Press Club, Washington, D.C., April 10, 2015; the conference was sponsored and organized by the editorial leadership of the magazine Washington Report on Middle East Affairs, which brings together some of the best writing on the Israel/Palestine struggle, as well as covering other regional issues. I encourage readers of this blog to look at the full conference either at the YouTube website or the audio recording at http://www.israellobbyus.org Although there were many illuminating presentations during the day, and I would call particular attention to the memorable remarks of two highly informed Israelis, Gideon Levy and Miko Peled. The tacit conspiracy of media silence has been well described in a release prepared by Washington Report <http://www.wrmea.org/action-alert-archives/did-media-make-itself-irrelevant-boycotting-the-israel-lobby-conference.html&gt;]

 

 

 

There are no better texts for assessing the damage done to the role and reputation of the UN by the Israeli Lobby than to consider Secretary of State John Kerry’s recent statements boasting about the U.S. success in protecting Israel from criticisms arising from its non-fulfillment of responsibilities under international law and as a member of the United Nations. It should be understood that the lobby does not act in a vacuum, and its leverage is greatly enhanced in global settings to the considerable extent that its priorities overlap with the strategic and economic interests of the United States in the Middle East.

 

Despite the tensions with the White House associated with Netanyahu’s March speech to Congress, Kerry proudly informed an ABC TV news boradcast: “We have intervened on Israel’s behalf..a couple of hundred times in over 75 different fora.” [“This Week,” Feb. 28, 2015]. And then when addressing the Human Rights Council Kerry included a statement that could just as well been drafted by AIPAC or Israel’s ambassador to the UN: “It must be said that the HRC’s obsession with Israel actually risks undermining the credibility of the entire organization.” And further, “we will oppose any effort by any group or participant in the UN system to arbitrarily and regularly delegitimize or isolate Israel, not just in the HRC but wherever it occurs.” [Remarks, Palais des Nations, Geneva, March 2, 2015] What is striking about these kinds of statements by our highest ranking government officials dealing with foreign policy is the disconnect between these reassurances of unconditional support and Israel’s record of persistent disregard of its obligation under international law and with respect to the authority of the UN. In addressing an AIPAC gathering a few weeks ago, Representative Lindsay Graham curried favor by telling the audience that as chair of the Senate Appropriations Committee, “I’m gonna put the UN on notice” that he would go after its funding if the Organization takes any steps to ‘marginalize’ Israel.

 

 

During my six years as UN Special Rapporteur for Occupied Palestine I had the opportunity to observe the manner in which a group of international and national so-called NGOs (non-governmental organizations) that are closely aligned with Israel give priority to deflecting criticisms of Israel and discrediting with the temerity to offer critical assessments of Israel’s conduct. I say ‘so-called’ because it is more revealing and accurate to regard these political actors as ‘quasi-government orgnaizations’ rather than NGOs. These covertly aligned entities now hide behind the NGO label to claim a civil society identity for themselves, but in practice they devote their energies and secure their funding because of their singleminded dedication and dogged defense of a particular government’s interests, in this instance those of Israel.

 

There were two features of the campaigns waged within the UN by these quasi-government organizations (QGOs]: attacks directed at discrediting critics of Israel and attacks directed at the UN as such, generally focused on particular organs of the Organization.

           

–with regard to personal attacks, a reliance on repeated defamatory attacks on a particular person being targeted, as biased and even anti-Semitic whenever such a person is addressing some aspect of Israeli policy or is sympathetically reporting on Palestinian grievances. Coupled with this kind of personal attack is an avoidance of the substantive aspects with respect to whether the criticisms or grievances are well grounded in international law and human rights law. The content of these toxic attacks, at least in my case, focused on a distorted presentation of my views on a variety of issues that were made in settings other than the UN and generally did not even pertain to the Israel-Palestine conflict. The intended effect was to shift attention from the message containing the issues about which the UN has a responsibility to consider upon to a controversy about whether the messenger is tainted. With incredible persistence, UN Watch the most aggressive of the QGOs, exclusively used the opportunity of ‘interactive dialogue’ in Geneva sessions of the HRC to give voice to their denunciation of my character and activities. Afterwards UN Watch circulated in the form of an organizational letter these defamatory attacks to prominent international personalities, including high-ranking civil servants in the UN itself, such as the UN Secretary General, the High Commissioner for Human Rights, and a variety of ambassadors of countries friendly to Israel. Characteristically, the letter ended with a demand that I be dismissed from my post as Special Rapporteur.

 

It was particularly disturbing to me that these defamatory attacks were treated as credible on their face by supposedly responsible prominent UN officials and government representative without the slightest effort to conduct an independent investigation or the minimal courtesy of checking either with me or with the sources that were being relied upon to put forward these defamatory assertions. Instead, their endorsement by supposedly responsible public figures was damaging to my reputation, and helped to divert attention from fashioning appropriate responses to the substantive grievances of the Palestinian people, and hence also indirectly damaged the reputation and effectiveness of the UN. As might be expected the Fox News network took such attacks at face value as useful material in relation to their hostile coverage of the UN.

 

On more than one occasion the UN SG Ban Ki-Moon denounced me without making the slightest attempt to assess the accuracy of the views attributed to me in such UN Watch letters that referred in discrediting and misleading ways to material from my blog where I discussed in some detail the 9/11 attacks and the international context of the 2013 bombing at the Boston Marathon. After the first of these attacks by the UN SG I tried to find out why as someone working without salary on behalf of the UN was not given the opportunity to at least explain my views. When I tried to probe the matter by seeking an explanation, I was told somewhat apologetically by a close associate of the SG that the failure to take account of my actual views was due to the fact that ‘we didn’t do due diligence.’ He added that at the time the UN felt ‘under pressure from the U.S. Congress to show that the Organization were not hostile to Israel.’ It was a sensitive moment as Ban Ki-Moon was seeking U.S. support for reappointment to a second term. In a similar vein, the U.S. Ambassador Susan Rice, and later Samantha Power, denounced me as biased, and deserving dismissal. When I sought some explanation from Ambassador Rice my overly polite letter remains unanswered. This experience of mine is important as it illustrates the readiness of public officials in this country and at high levels of the UN to condemn persons accused of bias toward Israel without bothering to find out whether the complaint against the is justified. The Israel Lobby’s basic premise is that any criticism of Israel at the UN is on its face evidence of bias and anti-Semitism, and this is exactly the approach taken by these officials connected with the UN and representing the U.S. Government. The QGOs serve as gatekeepers, signaling to those associated with global policy that it is time to act in support of Israel.

 

What I am trying to explain by reference to my experience is the degree to which these pro-Israeli QGOs stir up trouble for those who are doing their best to document Israel’s flagrant violations of international humanitarian law and international human rights standards. A major purpose of these tactics in response to well-evidenced documentation of Israeli state crime is to mobilize opposition on the part of government officials, especially in the U.S., but also Canada, UK, and Australia, and induce the pro-Israeli media to focus on controversies involving critics, rather than the criticisms, emanating from UN activities. One result of these repeated personal attacks along these lines is, by their mere repetition, useful in making the UN generally, and the Human Rights Council in particular, seem to be arenas dominated by individuals biased against Israel, and even anti-Semitic.

 

I can report that in my experience at the UN, including the Human Rights Council, the Organization has consistently leaned over backward to give Israel the benefit of the doubt. The official reports that I prepared on Israel’s occupation of Palestine over my term were based on essentially uncontested documentation of allegations of severe violations of international humanitarian law, as embodied in the Fourth Geneva Convention and on other authoritative norms. In my opinion, anyone possessing professional integrity could hardly arriving at the same, or similar, conclusions to mine with respect to the legal implications of the continuing occupation of Palestine. What is worth noticing is that this pushback by Israeli lobbying organizations reflects their apparent judgment that it is best to avoid engaging in any form of substantive debate. Undoubtedly, character assassination is proving more persuasive and effective.

 

It is also relevant to point out that my predecessor, John Dugard, a distinguished South African jurist and globally respected scholar, was also subjected to similar defamatory attacks during his period in the HRC as Special Rapporteur on Palestine. This style of defamatory QGO behavior has arguably weakened the role of the Special Rapporteur, which provides the Palestinian people with their only truly independent and potentially influential voice within the UN. My successor was explicitly chosen in 2014 to be Special Rapporteur for Palestine on the perverse rationale that he was more qualified than other candidates because he had no expert knowledge of the subject-matter and was not even shortlisted by the consultative committee of ambassadors that is charged with advising the President of the Human Rights Council on the qualifications of the candidates (it is amusing, although sad in its effects, that lack of qualifications became a crucial qualification in the UN selection process). The person chosen further demonstrated his suitability for the job by expressing a willingness in advance to make every effort to get along with Israel while discharging his office. The results of making this appointment have so far been much less attention to the grievances of the Palestinian people. Even with this corrupting process Israel has still not been willing to cooperate with the UN so as enabling the HRC to carry out the mandate. At present, the Special Rapporteur on Occupied Palestine continues to be denied entry to Palestine, a situation that has existed ever since I was expelled in 2008. Even in the face of this refusal to allow the Special Rapporteur access to Palestine, the UN is sufficiently intimidated by Israel and the U.S., that it makes only pro forma protests.

 

I should also point out that the experience of Special Rapporteurs for Palestine is not a departure from a broader pattern of defamation of UN initiatives perceived as critical of Israel. When Richard Goldstone, a lifelong Zionist, prominent in Israel, and a respected international civil servant, submitted a report on behalf of a fact-finding inquiry into the Cast Lead 2008-09 attacks on Gaza, he was so savagely attacked by these QGOs, as well as by the top Israeli leaders, that he was induced to back down and retract the most serious allegations concerning Israel’s behavior in Gaza, a reformulation that none of the other three distinguished members of the inquiry group supported. It should be noted that Goldstone, as in the case of Dugard and myself, undertake these UN roles as unpaid volunteers, which does allow us independence and allows us to be sharply criticized without being dismissed.

I can also report that I was privately frequently complimented for the objectivity and persuasiveness of my reports by important UN officials, but were on the defensive in public because the Organization is deemed dependent on U.S. support.

These tactics of seeking to destroy the reputation of the UN as an arena is illustrated by an article prominently published in the NY Times a week ago written by the Israeli ambassador to the UN, Ron Prosor, bearing the provocative title “The U.N. War on Israel.” [April 1, 2015] Ambassador Prosor contends “this once great global body had been overrun by the repressive regimes that violate human rights and undermine international security.” He argues that this pernicious influence is made plainly evident by the extent to which Israel is singled out for harsh criticism. He relied in his speech on UN Watch, which he blandly identify as “the Geneva-based monitoring group” to mount his diatribe, singling out the appointment of William Schabas a few months ago to head a commission of inquiry into the Israeli 2014 onslaught against Gaza as indicative of a disqualifying bias. Schabas resigned his post under a barrage of unfair criticism directed at the fact that he had once prepared a short technical report as a legal professional as to whether Palestine was qualified to be a party to the Rome Treaty governing the International Criminal Court. The fact that Proser’s inflammatory article was published in the NY Times, a venue respected for its objectivity and balance is itself reflective of the unhealthy degree of leverage wielded by Israeli lobbying groups.

 

In my experience, the UN rather than being subject to what Proser calls “the tide of hatred aimed at Israel” is a result of American influence within the Oraganization, is increasingly unable to play a constructive role in relation to Israel or by rendering protection to the Palestinian people who have been denied their most fundamental rights for far too long. It is relevant to remember that the ordeal of the Palestinians people, unlike that of any of the other terrible situations afflicting people throughout the world, is one for which the UN has a significant share of past and present responsibility. The UN took over the role played by colonial Britain that had administered Palestine since the end of World War I, after colonial Britain and the League of Nations had encouraged Zionist hopes in 1917 by issuing the Balfour Declaration that looked with favor on the establishment of “a national home for the Jewish people.” We need to recall in this connection that the initial partition proposals for historic Palestine in 1947 came from the UN in GA Resolution 181 without any effort to consult the wishes of the then resident population of Palestine, and thus in direct denial of the right of self-determination and against the tide of invalidating colonialist claims. It needs to be remembered that the much of the Palestinian tragedy is a direct result of this UN abandonment of the principle of self-determination in relation to Palestine as aggravated by the long record of Israeli defiance associated with its obligations under international law.

 

Rather than the UN reflecting the supposed hostility of oppressive regimes to Israel, the UN has increasingly been neutralized in any effort to produce after more than 68 years a sustainable and just peace for these two peoples, and the realities on the ground have moved relentlessly in defiance of international law in the direction of an outcome that denies elemental rights to the Palestinian people. It is notable, yet hardly surprising, that Proser makes no attempt to address the substantive charges of human rights and international humanitarian law abuses attributed to Israel, and does not even deny their accuracy. The fault of the UN, according to the lobby and its compromised diplomats, is with the UN as a prejudiced arena, and whatever the crimes of Israel may be, they should be treated as unworthy distractions from this overarching truth.

 

Palestine may be winning the Legitimacy War being waged throughout the world and at the UN to obtain popular support for the Palestinian cause with the peoples of the world, but it is losing the parallel Geopolitical War. Both wars view the UN as a strategic battlefield. The recommendations of the Goldstone Report were never implemented. If indeed the new fact finding commission on Gaza appointed to investigate Protective Edge delivers an appropriately strong report in June 2014 that condemns Israel’s tactics in its military operation of last summer, it is almost certain that its findings and any recommendations will be buried in the bowels of the UN bureaucracy. Israel, with strong U.S. backing, has persuaded the UN to hold a conference later in the year on the dangers of anti-Semitism, which seems almost certain to make the kind of arguments made by UN Watch and NGO Monitor that justifiable criticism of Israel should be dismissed without further consideration as a virulent form of anti-Semitism because it delegitimizes the state of Israel.

 

 

From an Israeli perspective these tactics of deflection makes sense as anyone familiar with the facts and law would certainly hold views that are critical of Israel’s policies and practices, and the UN endorsement of such a conclusion clearly adds weight to the global solidarity movement that is influenced by persuasive findings that confirm the illegitimacy of Israel’s policies and practices in relation to the Palestinian people. The Israeli settlement project has been almost universally condemned, the separation wall built on Occupied Palestine has been declared unlawful by 14 of 15 judges of the International Court of Justice, the severe and continuing collective punishment of the people of Gaza is unconditionally prohibited by Article 33 of the Fourth Geneva Convention, the annexation of a unilaterally enlarged Jerusalem defies the international legal consensus to name just a few of the salient issues of substance that Israel wants the world, and especially the UN, to ignore, while with the help of the United States, shifting as much attention as possible to issues of bias and anti-Semitism in relation to the UN and those who represent it.

 

In conclusion, I would say that the QGOs along with Israeli and American diplomats have managed to intimidate and neutralize the UN as a foundation of support for the justifiable grievances of the Palestinian people. In so doing, rather than overdoing its emphasis on Israeli violations of human rights and international law, the UN has increasingly allowed itself to be used by geopolitical actors to shield Israel from criticism and to deflect such stronger initiatives as sanctions designed to produce a just and sustainable peace for the two peoples. Israel on its side has adopted a pragmatic dual approach to the UN, complaining in public settings about bias and disproportionate emphasis, and behind the scenes using its direct and indirect leverage to influence the selection of personnel bearing on its interests and to push the agenda in directions that correspond with its worldview.

 

The Geopolitical Right of Exception at the United Nations

13 Apr

 

The notorious, yet influential, German jurist, Carl Schmitt famously insisted that ‘a right of exception’ was the core reality of national sovereignty. By this he meant that internal law could be put aside by ‘the sovereign,’ inhering as the crux of the relationship between state and society. In this regard international law has no overriding claim of authority with respect to sovereign states, at least from the perspective of statist jurisprudence. This discretion to ignore or violate law is distinct from submission to law as a realistic adaptation by weak states to political realities or compliance undertaken voluntarily for pragmatic reasons of convenience and mutual benefit.

 

When the UN was established, it was configured, to appeal both to realist minds who were eager to show that they had learned the lesson of Munich and to those architects of international cooperation that did not want the folly of the League of Nations, seen as a politically irrelevant sanctuary for utopians and dreamers to be repeated in this newly created organization. To achieve these ends the UN Charter vested only the UN Security Council with the power of decision (as distinct from recommendations), and limited its membership originally to nine states of which the five designated winners of World War II were given both permanent membership, and more importantly, a right of veto. In effect, the right of veto was a constitutional right of exception embedded in the UN Charter. It formulated the master procedural rule of the Charter as one that allowed permanent members of the Security Council to block any decision that was perceived to be sufficiently against their national interests or those of its friends. Just as Woodrow Wilson falsely misled the world with his pledge after World War I of ‘making the world safe for democracy’ the UN was more effectively manipulated into the actuality of ‘making the world safe for geopolitics.’

 

In effect, the UN was set up on the basis that it would never be strong enough to challenge these five major states, and that its effectiveness would rest on two possibilities: sustaining the voluntary cooperation that had worked successfully during World War II to thwart European fascism and Japanese imperialism or cooperating on issues of secondary concern in the peace and security area on which the permanent members could agree and persuade enough non-permanent term members to lend support. As was discovered several decades ago, these permanent members could only agree on what to do in the Security Council on the rarest of occasions, and that decisions relating to secondary issues, although often useful, left the really dangerous conflicts beyond the reach of the UN. The UN also committed itself to respect territorial sovereignty of its members, and by virtue of Article 2(7) of the Charter, placed all forms of civil strife beyond its writ unless the Security Council agreed that there were present substantial threats to international peace and security.

 

This constitutional right of exception to some extent contradicts the basic imperative of the Organization “to save succeeding generations from the scourge of war” that is set forth in the Preamble to the Charter. To the extent that major wars have been avoided during the lifetime of the UN it is not due to the efforts of the Organization. It is rather a consequence of deterrence, and geopolitical self-restraint and prudence, which were greatly encouraged by the awareness that any war fought with nuclear weapons would be a catastrophe regardless of which side prevailed. Major wars were prevented by a reliance on traditional notions of balance, containment, and countervailing power fine tuned for the realities of the nuclear age. These were realist instruments of statecraft associated with the European state system as adapted to the distinctive contemporary challenges. In the over 400 pages of his 2014 book, World Order, Henry Kissinger, the realist par excellence of this era, hardly mentions the UN, and accords it no significant role in shaping or even misshaping the ‘world order’ in the 21st century. The UN is simply seen as a diplomatic sideshow. He sees the present world order need to be primarily concerned with incorporating the non-Western major states, especially China, in an enlarged conception of a state system that is based on European ideas. For this process of incorporation to occur smoothly it will be essential that Westphalian logic of statism be newly perceived as reflecting the values and worldview of these diverse civilizations, and no longer be understood as an integral aspect of the Western world domination project.

 

Although the UN is a disappointment when it comes to ‘war prevention’ or the encouragement of a global rule of law, it has managed to achieve universality of membership. Unlike the League that failed to induce the United States to join and lost along the way several important members, the UN has neither expelled countries from its ranks nor have states withdrawn. The Organization has proved sufficiently useful as a site of diplomatic interaction and contestation that every government regardless of ideology or outlook finds it useful to participate in its activities. Even Israel that consistently complains loudly about the flawed and biased character of the UN, still tries with all its diplomatic ingenuity to influence its various activities in directions consistent with its foreign policy.

 

What has received too little attention so far is what I would call ‘the geopolitical right of exception’ that is quite distinct from the constitutional veto, but at least as pernicious from the perspective of enabling the UN to promote the human interest in its actions throughout the world. The geopolitical right of exception reflects the ability of one or more political actor in the world to promote or undermine policies that express its particular interest. In UN contexts the geopolitical right of exception allows a state to prevent the implementation of behavior that has been otherwise given formal approval. For instance, in the UN Human Rights Council there is no operative constitutional right of exception, and this allows certain steps to

be taken on the basis of majority approval. Yet when it comes to implementation or enforcement, acting behind the scenes, threatening funding cuts and actions for and against a high official, the political will of the Organization is effectively resisted and controlled. For instance, Israel despite ignoring strongly backed UN General Assembly resolutions dealing with such matters as refugees, Jerusalem, the separation wall, has been able to be defiant over the course of decades without experiencing any inter-governmental adverse consequences, and this is because it is protected by the United States exercise of its geopolitical right of exception on its behalf. The availability of such a geopolitical right is in direct proportion to the perceived hierarchy of hard and soft power in the world, which has meant that since World War II, the United States far more than any other political actor has enjoyed a geopolitical right of exception within the UN.

 

The existence of this geopolitical right of exception undermines the legitimacy and effectiveness of the UN. It is integral to regimes of double standards, and cuts directly against the grain of global justice that seeks to treat equals as equally as possible. It also implicitly endorses backroom strong arm tactics and procedural manipulation, as well as modifies and distorts the rights and duties of membership in the UN.

 

Overcoming the geopolitical right of exception would require its repudiation by the United States, in particular, through a recognition that its exercise is incompatible with the search for a peaceful, just, sustainable, and more participatory form of world order. Because it is often exercised invisibly, this geopolitical right is also a vehicle of influence relied upon by private sector corporate and financial interests that are contrary to the global public interest. At present, it seems hopelessly out of touch to expect any moves by the American and other powerful governments to forego the benefits of the geopolitical right of veto. Because its exercise is neither claimed nor acknowledged, there can be no accountability, thus operating in a manner that is contrary to the democratic spirit. The constitutional veto has the benefit of discourse and debate as various political actors try to offer convincing reasons for casting a veto to block a Security Council decision. For this very reason the geopolitical right of exception is often a more desirable option than the constitutional right if the policy or position being promoted is unpopular with public opinion and other governments. The U.S. Government struggles often behind the scenes at the UN to provide effective support for Israel in ways that get the job done without having to achieve such an unpopular result by a seemingly arbitrary reliance on its veto.

 

Unless a full-fledged world government were to be established, which seems slightly less likely than awarding the Nobel Peace Prize to Vladamir Putin, there is no prospect of any renunciation of the geopolitical right of exception at the UN in the foreseeable future. The best that can be hoped for is a recognition of its existence and role, some sort of greater self-restraint exhibited in its exercise, and critical commentary by those who conceive of their political identity as that of ‘citizen pilgrims.’

Opposing Impunity for Geopolitical Criminality

5 Apr

 

 

Responding to intense pressure from the usual sources William Schabas, a prominent and respected expert on international criminal law, recently resigned as Chair of the UN expert commission of inquiry into war crimes allegations arising from the massive Israeli military operations in Gaza during July and August of 2014. These issues relating to international criminal accountability have also received recent prominence due to Palestine’s adherence to the Rome Treaty making it a party to the International Criminal Court, an initiative that generated an enraged punitive reaction on the part of Israel as well as an angry denunciation by Washington. On display in these instances is the struggle between extending the rule of law to international state crimes and the geopolitical resistance to such an effort whenever accountability to law is in tension with the pursuit of strategic interests.

Imposing international criminal responsibility upon political leaders and military commanders that occur in the aftermath of wars possesses a dual character from a geopolitical perspective: to vindicate major military undertakings of liberal democratic states and to ensure impunity for the leaders of these same states in the event that their behavior or that of their allies are alleged to be international crimes. These efforts at vindication are associated with strengthening the global rule of law and validating the established order, while impunity is invoked to insulate powerful individuals and their governments from criminal accountability. The resulting pattern in international life is one of double standards at the level of implementation and hypocritical rhetoric about the importance of a global rule of law based on its universal applicability.

 

Contemporary experience with these issues is grounded in the aftermath of World War II. In 1945 with great fanfare after World War II, especially at Nuremberg in the legal prosecution of surviving Nazi leaders, as well as at Toyko where a series of prominent Japanese personalities who had headed the imperial government and commanded its military forces were accused and convicted of international crimes. These sophisticated ‘show trials’ were generally endorsed in the West as a civilized alternative to the favored Soviet and British approaches, which would have been to arrange summary mass executions of all Germans deemed responsible for international crimes without making any effort to assess the gravity or accuracy of the charges directed at specific individuals. What was done at Nuremberg in 1945 was for prosecutors to prepare carefully evidence of alleged wrongdoing of each defendant under indictment as well as developing arguments about the legal relevance of the international crimes at stake while giving those accused an almost free hand to offer legal defenses and mitigating evidence as prepared by competent lawyers appointed to render them assistance.

 

In most respects, Nuremberg in particular continues to be viewed as a landmark success in the annals of the progressive development of international law. It is also significant that the outcomes of parallel Tokyo prosecutions of Japanese leaders are virtually unknown except in Japan where they are decried as ‘victors’ justice’ and throughout the world among a few specialists in international criminal law.

 

There are several reasons for the prominence of Nuremberg. First of all, the disclosures of the Holocaust at Nuremberg were so ghastly that some sort of punishment of those responsible seemed to be a moral imperative at the time.

Although the crime of genocide did not yet exist in law, the revelations of the Nuremberg proceedings documented as never before the systematic extermination of Jews and others in Europe. Beyond this, the war was widely believed to have been a just and necessary response to the menace of Naziism and Japanese imperialism, and their embrace of aggressive war. The Allied victory was viewed as decisive in overcoming the fascist challenge to liberal democracy, with the Nuremberg Judgment providing an authoritative rationale for waging a defensive war so costly in lives, devastation, and resources. Finally, the claim to be establishing a structure of legal accountability that took precedence over national law seemed integral to the postwar resolve to keep the peace in the future and deter aggression by reminding all leaders of the possibility of criminal accountability for initiating a war or abusing people under their control. The advent of nuclear weaponry reinforced the moral and political conviction that major wars must now be prevented by all available means, including this warning to leaders and military commanders that their actions could become the subject of criminal prosecution.

 

At the same time, this Nuremberg/Tokyo experiment was tainted from the outset. It was clearly victors’ justice that incorporated double standards. The evident crimes of the winners in the war were not even investigated, including the atomic bombings of two Japanese cities, which were viewed around the world as perhaps the worst single acts of wrongdoing throughout the course of the entire war, and only the Nazi death camps were in some way equivalent in relation to legality and morality. There were official statements made at Nuremberg that those who sat in judgment of the Germans would in the future be subject to similar procedures of accountability if they committed acts that seemed to be crimes under international law implying that the rule of law would replace victors’ justice. In effect, the claim made on behalf of moral credibility and political fairness was that this Nuremberg/Tokyo approach would assume the attributes of the rule of law by treating equals equally in future conflicts. Such expectations, if scrutinized, seemed to reflect the hopes of ‘liberal legalists’ in universal legal standards, but were never realistic goals given the structure and nature of world politics.

 

In effect, this Nuremberg promise could not be kept because geopolitical primacy continues to set the limits of legal accountability. Although there has existed an International Criminal Court since 2002, and ample grounds for believing that some major sovereign states have committed international crimes, there have zero prosecutions directed at dominant political actors, and not even investigations into possible criminality have been launched. Such a pattern results from a normative gap in world order that is not likely to be closed soon. It is a gap that is most visibly expressed by reference to the right of veto possessed as a matter of law by the five permanent members of the UN Security Council. This right of veto amounts to an institutional grant of exemption from the legal obligation to comply with the UN Charter on matters of peace and security. For these five states and their friends and allies, compliance is discretionary, and non-compliance is in effect ‘a right.’ In this regard, the UN Charter is itself a product of what might be called ‘geopolitical realism,’ which takes precedence over the apolitical aspirations of ‘liberal legalists.’

 

And yet, the impulse to hold accountable those who commit crimes against the peace, war crimes, and crimes against humanity remains strong among moderate democratic governments and in some sectors of global civil society. As a result there is some further development of the Nuremberg idea, although the fundamental tensions between hard power and establishing a credible rule of law with general applicability remains. During the 1990s the UN Security Council established ad hoc international tribunals to assess criminal responsibility associated with the breakup of former Yugoslavia and in relation to the genocidal massacres in Rwanda. In these North/South settings, there was more willingness to allow all sides to bring forth their arguments about the criminal behavior of their adversary since there were no allegations directed at geopolitical heavyweights. That is, the approach of liberal legalists became practical in these situations where no high profile geopolitical actor is being accused of an international crime.

 

The International Criminal Court was itself brought into being in 2002 by an unusual coalition of forces, joining governments with a great many NGOs drawn from around the world in a joint project. What came into being is an international institution with a mandate to investigate and prosecute, but lacking the participation and support of the dominant states, and operating within a framework that up to now has been deferential to the sensitivities of sovereign states in the West. Operating in such a limited way has led the ICC in its first decade to focus its attention almost entirely on African leaders, while looking the other way with respect to geopolitical actors. Liberals conceive of this as progress, doing what can be done, and beneficial to the extent that it apprehends some persons who have been responsible for atrocities and crimes against humanity. Critics of the ICC view it as another venue for the administration of ‘victors’ justice’ and an inscription of Western moral hegemony that entails a cynical expression of double standards. Both interpretations are plausible. The ICC is currently facing an identity test as to whether it will undertake investigations of alleged Israeli criminality made at the request of Palestine. Its institutional weight is being demonstrated by the degree to which the Israeli leadership reacts with fury, punitive policies, and intense anger directed at the Palestinian Authority for raising such a possibility. It should surprise few that Israel’s backlash against the ICC is supported by the United States.

 

For centuries there has been recognized the capacity of national courts to act as agents of law enforcement in relation to international wrongdoing. Such a judicial role was long exercised in Western countries in relation to international piracy, which was viewed as a crime against the whole world and hence could be prosecuted anywhere. Such an extension of international criminal law is based on ideas of ‘universal jurisdiction,’ strengthening the capacity of international society to address serious crimes of state. This kind of approach receive great attention in relation to allegations of torture made against the former Chilean dictator, Augusto Pinochet, after he was detained by Britain in response to a 1998 request for extradition by Spain where a court stood ready to prosecute on the basis of indictments already made. After a series of legal proceedings in Britain the House of Lords acting as the country’s highest judicial body decided that Pinochet should be extradited, but only for torture charges relating to a period after torture became an international crime within Britain. In theory, national courts could become much more active in relation to universal jurisdiction if so empowered by parliamentary mandate, but again doing so without challenging geopolitical red lines. When Belgian courts threatened to proceed against Donald Rumsfeld because of his alleged authorization of torture in Iraq, political pressures were mounted by Washington, including even threats to move NATO. In the end, Belgium backed down by revising its national criminal code so as to make it much more difficult to prosecute international crimes that occurred outside of Belgium and for which Belgians were not victims or perpetrators.

 

Civil society has also acted to close the normative gap created by patterns of geopolitical impunity. In the midst of the Vietnam War, motivated by a sense of moral outrage and the paralysis of official institutions when it came to challenging American behavior, Bertrand Russell organized a symbolic legal proceeding that investigated charges of criminality in 1966 and 1967. Prominent intellectuals from around the world were invited to serve as a jury of conscience, heard evidence, issuing their opinion as to law and facts at the end. Inspired by this Russell Tribunal experience, the Permanent Peoples Tribunal was established a decade later by citizens, operating out of Rome, holding sessions on issues where there existed moral outrage, legal prohibitions, and institutional paralysis, symbolically challenging geopolitical impunity. In 2005 there was organized in Istanbul by a dedicated group of female activists an independent tribunal to investigate war crimes charges against British and American political and military leaders, as well as corporate actors associated with the Iraq War. The Iraq War Tribunal relied upon a jury of conscience chaired by Arundhati Roy to pronounce upon the evidence. Of course, such a tribunal can only challenge impunity symbolically by influencing public opinion, and possibly through encouraging boycotts and other moves that delegitimize the claimants of power and possibly alter the political climate. Nevertheless, it plays a role in the legitimacy war dimensions of international conflicts, providing an alternative narrative to the discourse

disseminated by geopolitical forces and giving encouragement to civil society activism by providing a convincing rationale for concluding that contested behavior violates fundamental norms of international law and morality.

 

In summary, it is still accurate to observe that geopolitical primacy inhibits the implementation of international criminal law from the perspective of a global rule of law regime that treats equals equally. At the same time, ever since Nuremberg there have been efforts to end the impunity of those guilty of international crimes in war/peace situations and national settings of oppressive rule. These efforts have taken several main forms: (1) the establishment by the UN of ad hoc tribunals with a specific mandate as with former Yugoslavia and Rwanda; (2) the establishment of a treaty based international institution, the International Criminal Court, with limited participation and disappointing results to date; (3) reliance on universal jurisdiction to activate national courts to act as agents on behalf of international society with respect to enforcing international criminal law; (4) the formation of civil society tribunals to assess criminal responsibility of

leaders in situations of moral outrage and global settings that render unavailable either inter-governmental or governmental procedures of accountability. (1)-(3) are projects of liberal legality, while (4) draws on more progressive jurisprudential energies outside the statist paradigm.

 

In the end, there is posed a choice. One possibility is go along with the one-eyed efforts of liberal legalists, most notably mainstream NGOs such as Human Rights Watch, silently acknowledging that the rule of law cannot be expected to function in relation to many serious international crimes due to the hierarchical and hegemonic structure of international society. The other possibility is to insist there can be no international justice so long as there exists a regime of ‘geopolitical impunity.’ In both instances, the contributions of civil society tribunals are needed, both for the sake of symbolic indictment and documentation of wrongdoing, and to acknowledge civil society as the moral and legal conscience of humanity. It must be admitted that only among liberal democracies are such self-critical initiatives of civil society tolerated, although such undertakings are derided and marginalized by mainstream media as the work of a ‘kangaroo court.’ Obama’s refusal to look back at the international crimes alleged against leading members of the Bush presidency is one awkward admission of the limits on legal accountability; such reasoning if generalized would invalidate any concern with all forms of past behavior, and hence any notion of accountability for all crimes. In such a dysutopia criminal law might exist, but by habit and expectation it would never be implemented, however severe the crime and dangerous the criminal. In the world we inhabit, without kangaroo courts international criminal law would continue with its limited writ, and there would no tribunals whatsoever to assess the criminality of the most powerful political actors on the world stage that menace many vulnerable peoples in the world.

 

 

 

 

The Mistakes of the Global Imperial State and the Mistakes of Others  

29 Mar

 

It was pointed out to me that the oddities of reconciliation without truth that I encountered in the Philippines with respect to the persisting prominence of the Marcos family despite the widespread discrediting of his period of ruler ship (1965-1986) is not as strange as I made it appear. After all, Jeb Bush has recently announced his intention to seek the presidency of the United States in 2016, and George W. Bush despite his deplorable presidency, is regarded as a political asset, and is actively campaigning and raising funds on behalf of his younger brother. In the Philippines, unlike the United States, there was a political rupture brought about by the People Power Movement that drove the Marcos clan from power and led directly to Corey Aquino becoming president, widow of Benigno Aquino Jr., the slain Marcos opponent. Even now this populist triumph is celebrated as a day of national pride for the country, and Benigno ‘Noynoy’ Aquino III sits in the Malacañang Palace as the elected leader of the country. Yet the political realities in the Philippines, as with America, are more notable for their continuities with their discredited past than by changes that repudiate and overcome it.

 

Barack Obama was acting in an admittedly different political setting in the United States when he put aside well grounded allegations of criminality directed at the leadership during the Bush presidency, prudently contending that the country should look forward not backward when it comes to criminal accountability of its former political leaders. Of course, this is the opposite of what was done with surviving German and Japanese leaders after World War II at the widely heralded Nuremberg and Tokyo trials, nor can such prudence ever become the norm in the United States in relation to the crimes of ordinary people, even the laudable whistleblowing crimes of the sort attributed to Chelsea Manning, Julian Assange, and Edward Snowden. Such selective impunity seems to be the price that imperial democracies pay for avoiding civil strife at home, and preferable to the unity associated with authoritarian forms of governance.

 

For this reason alone, Obama’s morally regressive approach to accountability is politically understandable and prudent. America is polarized, and the most alienated and angry segment of the citizenry embraces the gun culture and likely remains ardently supportive of the sort of militarism and patriotic fervor that had been so strongly in evidence during the Bush presidency.

 

Thoughts along these lines led me a broader set of reflections. The mistakes that the Philippines makes, however horrifying from the perspectives of human rights, are at least largely confined to the territorial limits of the country and victimize its own citizenry. By way of comparison, the foreign policy mistakes that the United States mainly vicitimize others, although they often do at the same time impose heavy costs on the most marginal and vulnerable of Americans. As a society, many regret the impacts of the Vietnam War or the Iraq War on the serenity and self-esteem of American society, but as Americans we rarely, if ever, pause to lament the immense losses inflicted on societal experience of those living within such distant battlefields of geopolitical ambition. These victim societies are passive recipients of this destructive experience, rarely possessing the capability or even the political will to strike back. Such is the one-sidedness of imperial relationships.

 

An estimated 1.6 to 3.8 million Vietnamese died during the Vietnam War as compared to 58, 000 Americans, and similar casualty ratios are present in the Afghanistan and Iraq wars, without even considering the disruption and devastation experienced. In Iraq since 2003 it is estimated that between 600,000 and 1 million Iraqis were killed, and over 2 million were internally displaced and another 500,000 Iraqis became refugees as a result of the war, while the United States lost in the vicinity of 4,500 combat personnel. Battlefield statistics should not blind us to the absoluteness of each death from the perspective of loved ones, but they do reveal a central dimension of the distribution of the relative human costs of war as between an intervening government and the target society. This calculus of combat death does begin to tell the story of the devastation of a foreign society, or the residual dangers that can materialize in death and maiming injuries long after the guns are silent from lethal unexploded ordinance that litters the countryside for generations, soil contamination by Agent Orange, and warheads containing depleted uranium, as well as a legacy of trauma and many daily reminders of war memories in the shape of devastated landscapes and destroyed landmarks of cultural heritage.

 

From almost any ethical standpoint it would seem that some conception of international responsibility should restrain the use of force in situations other than those authorized by international law. But that’s not the way the world works. The mistakes and wrongdoing that takes place in a distant foreign war is rarely acknowledged, and never punished or restitution offered. Perversely, it is only the territorial leaders that are held to account (e.g. Saddam Hussein, Slobodan Milosevic, and Muammar Qaddafi). The United States Government, specifically the Pentagon, makes it a point to tell the world that it does not collect data on civilian casualties associated with its international military operations. In part, there is an attitude of denial, minimizing the ordeals inflicted on foreign countries, and in part there is the salve of an underlying official insistence that the U.S. makes every effort to avoid civilian casualties. In the context of drone warfare, Washington insists that there are very few civilian victims, as measured by the number of deaths, but never admits that a far larger number of civilians huddle in continuous acute fear that they may be targeted or unintentionally struck dead by an errant missile.

 

Given the statist and imperial structures of world order, it is not surprising that there is so little attention to such issues. The mistakes of an imperial global state have material reverberations far beyond their borders while the mistakes of normal state resound inwardly as in an echo chamber. The wrongs of those who act for the imperial global state are shielded from scrutiny by realistic notions of impunity, while the wrongs of those who act for a normal state are increasingly subject to international procedures of accountability. When this happened after World War II it was called ‘victors’ justice; when it happens now, especially with the one-eyed jurisprudence of ‘liberal legality’ it is explained by reference to prudence and realism, being practical, doing what it is possible, accepting limits, giving a fair trial to those who are accused, deterring some patterns of evil deeds.

 

This will not change unless either of two things come to pass: a global capability to interpret and implement international criminal law comes into being or the political consciousness of imperial global states is dramatically altered by the internalization of an ethos of responsibility toward foreign societies and their inhabitants. Any description of such advances in law and justice should make us aware of how utopian such expectations remain.

 

At present, there is only one global imperial state, the United States of America. Some suggest that China’s economic prowess creates a rival center of power and influence that should be acknowledged as a second global imperial state. This seems misleading. China may be more resilient, and is certainly less militarist in its conception of security and pursuit of its interests, but it is not global, nor does it fight wars distant from its homeland. Furthermore, Chinese language, currency, and culture do not enjoy the global reach of English, the U.S. dollar, and franchise capitalism. Undoubtedly, China is currently is arguably the most significant state in the world, but its reality is in keeping with core Westphalian ideas of territorial sovereignty, while the United States operates globally in all regions to solidify its status as the only global imperial state, indeed the first such state in the history of the world.

CHANGE VERSUS CONTINUITY IN THE PHILIPPINES

26 Mar

 

CHANGE VERSUS CONTINUITY IN THE PHILIPPINES

 

After more than 30 years I recently spent a week in the Philippines, giving a few arranged talks at universities, meeting with NGOs, and old friends who shared their understanding of this fascinating fast growing country of approximately 105 million people living on an archipelago that consists of more than 7,107 islands. Additionally, of course, Manila is a mega-city that exhibits traffic at its worst, colorful jeepneys by the hundreds that are a distinctive national mode of urban transportation, a kind of customized bus service in smaller vehicles colorfully adorned, and now almost as many malls as churches epitomizing the economic and social intrusion of neoliberalism in the guise of globalization. Probably because of the large number of affluent expats living in the Makati neighborhood of Manila, the malls in the vicinity of my hotel offered visitors a wide range of world cuisines in numerous restaurants, cafes, bistros, and of course, a large Starbucks, staying open late into the night. As well, there were housed in these malls the same upper end array of global stores (e.g. Gucci, Coach, Cartier, Burberry, Zara, and so on).

 

My visit coincided with two preoccupations in the country: the celebration of the 29th anniversary of the overthrow of the Marcos dictatorship by the People Power Revolution in 1986 and the current obsessive national debate about how to understand and react to the bungled counterterrorist operation in the Mindanao community of Mamapasano located in Manguindanao province that took place in late January of this year. Each of these occurrences offered a politically attuned visitor a finely honed optic by which to grasp the central tensions currently gripping the country.

 

There is little doubt that the people power movement of the mid-1980s remains a source of national pride for many Filipinos, although its overall results are not nearly as emancipatory as were the original hopes and aspirations. Procedural democracy seems to have become firmly established, and the fact that the president of the country is the son of Benigno and Cory Aquino. Benigno Aquino who had been assassinated as he stepped on the tarmac in 1983 is an important symbolic expression of a reformed political order. Marcos denied the crime, and there have been two inconclusive trials of military officers alleged to be responsible for planning and carrying out the assassination, but the event has not been authoritatively explained to date. Yet despite the momentous changes brought about by this populist rising, the political economy of the country remains as enmeshed as earlier in a web of entanglements with predatory globalization, making income and wealth disparities ever larger while massive degrading poverty persists. The oligarchic structures of land tenure have been tweaked by mild reformism without loosening their chokehold on the nation’s vital arteries.

 

The Philippines have long been beset by insurgent challenges, which also seem likely to continue indefinitely. After decades of struggle the New Peoples Army founded in 1969 and operating on Maoist principles of ‘peoples war’ remains in control of a number of remote communities in several of the important islands, clashes with government forces are reported in the media from time to time, and negotiations with the government with the goal of ending the conflict have been undertaken from time to time. This persevering movement appears to remain under the ideological leadership of Jose Maria Sison, who has been living as an exile in Utrecht for decades.

 

Given far more recent attention for both internal and international reasons are the several violent movements seeking autonomy and other goals in the largely Muslim island of Mindanao. There had been lengthy negotiations with the Moro Islamic Liberation Front that agreed finally on a resolution of this conflict through the autonomy arrangement embedded in the Bangsamoro Basic Law that seemed on the verge of enactment until the Mamapasano incident of January 25th put off adoption at least until June, and possibly forever. Opponents are now raising Islamophobic fears that Mindanao would become a platform for political extremism if the agreement reached with such difficulty goes into effect.

 

What for me was particularly strange was this deeply ingrained national experience of successfully challenging intolerable aspects of the established order without being able to follow through in some way that achieves the goals being sought. In one way it is a rather impressive sign of reconciliation to realize that the son of Fernand Marcos Jr. is an influential senator, and is even contemplating a run for the presidency in 2016 despite never repudiating the policies and practices of his father, which are movingly on display in a small museum dedicated to the crimes committed by the Marcos regime during the period of martial law (1972-1981). Additionally, Imee, the oldest Marcos daughter is the governor of the Ilocos Norte province, their home province, and even Imelda Marcos has been forgiven her excesses, shoes and otherwise, and serves as a popular member of the House of Representatives since being elected in 2010 by a plurality of over 80%. This is a remarkable type of rehabilitation of a family dictatorship believed responsible for siphoning off public monies in the billions and suppressing its opponents by reliance on torture, brutality, and assassination. The Marcos clan has never recanted or expressed remorse, but explains that whatever wrongs occurred during that time as either ‘mistakes’ of subordinates or the unproven allegations of opposition forces.

 

When I asked how was it possible that the Marcos past has been so cleanly erased from the contemporary blackboard of Filipino awareness, I received various answers: “They have lots of money” “They never lost popularity in their home province where lots of development took place while Marcos governed ” “The past no longer matters; it is the present that counts” “the oligarchy still rules the country and includes all leading families regardless of their political affiliations.”

 

There are attractive aspects of this experience of ‘reconciliation without truth,’ that is, without some formal process of reckoning and accountability, at least the palliative of a truth and reconciliation commission. Such a spirit of resigned moderation is in some respects the opposite of the sort of polarization that afflicts so many countries at present. It is not only that the Marcos’s have been allowed to participate prominently in the political system without being compromised by their past, but also those on the left who in the Marcos period were ‘underground’ and enemies of the state are now to be found in the Congress or even in the cabinet of the president. Perhaps, the Philippines is quietly experimenting in the practice of ‘pluralist democracy,’ while ignoring the more radical features of ‘substantive and restorative democracy.’

 

A similar pattern of ‘conscious forgetfulness’ is evident in relation to the colonial past for both its Spanish and American versions. There is no bitterness despite the cruelties and harshness of the Spanish colonial legacy. Catholicism is still firmly rooted in the country as it was when it was a willing partner of the Spanish rulers in the oppressive past, and continues to flourish in a manner that has not occurred in any other post-colonial Asian country. When Pope Francis visited the country in January it was the largest celebratory event in the country’s history. This status of Catholicism is also remarkable considering the Church’s persistent opposition to birth control for poor families that are continuing to have large families that they unable to support; over 30% of Filipino children are reported to be stunted due to the effect of malnutrition and hunger.

 

The bloody counterinsurgency war fought by the United States in the aftermath of the Spanish-American War of 1898 crushed the Philippines expectations of national independence that had been promised by Americans as part of their own anti-colonial identity. Most absurdly, the American president at the time William McKinley, actually justified administering the Philippines as part of its responsibility to Christianize this most Christian of countries. The decision to break the American promise of independence made to anti-Spanish nationalist leaders in the Philippines was articulated in the brazen spirit of Manifest Destiny, putting a moral ad religious face on America’s first flirtation with undisguised colonialism. McKinley’s words are memorably revealing: “..there was nothing left for us to do but to take them all, and to educate the Filipinos, and uplift and civilize and Christianize them, and by God’s grace do the very best we could by them..”

 

My initial contact with the Philippines was as a supporter of the ‘Anti-Bases Coalition,’ which in the 1980s was seeking the removal of the two huge American military bases at Subic Bay and Clark Air Force Base. This has been a struggle with strong nationalist overtones, and engaging leading political figures in the country. The bases were eventually closed, but consistent with the tendency to exhibit the truth of the French adage ‘plus ça change, plus c’est la même chose ‘ [the more things change, the more they remain the same] the strategic relationship with the United States was sustained, even deepened, and certainly continued. There were American special forces units operating rather freely in the country as part of the global war on terror, and there were intimations that the role of the United States in the Mamapasano incident was responsible for the bloodshed that generated a political crisis in the country.

 

Of course, there are explanations for this seeming contradiction between getting rid of American military bases and maintaining military cooperation. The government in Manila was benefitted by the assistance of the United States in dealing effectively with its domestic insurgent challenges from the left. Beyond this, the Philippines turned out to be one of the anti-Islamic battlefields in the post-9/11 ‘war on terror,’ and the United States exerted pressures on the government in Manila to give its consent to counter-terrorist operations within its borders. In the background, but not very far removed from political consciousness, were the flaring island disputes with China and the overall security concerns associated with the regional rise of China. In this geopolitical setting, the United States was seen as a necessary friend to offset the more immediate and direct existential threats posed by China. In important respects, these patterns can be understood as the post-Cold War securitization of Asian relations in the shadow of the transformative impacts of the 9/11 attacks.

 

The Mamapasano incident is emblematic of these realities. Under apparent pressure from the United States to capture or kill a much wanted terrorist known as Marwan, the Filipino elite special forces units were persuaded to carry out the operation. In the process 42 of these highly trained troops were killed, along with Marwan, and there were many repercussions. The United States role was at first disguised, but investigations revealed involvement, including a drone watching and maybe guiding the operation, along with the allegation that the Filipino soldiers were ‘sacrificed’ to spare American lives in a situation where heavy armed resistance should have been anticipated. Some blamed the president, and there were demonstrations during my days in the country demanding his resignation, despite his popularity remaining quite high. It is not clear what will be the outcome, whether there will be a downgrading of cooperation with the United States and some accountability imposed on those who are alleged to have bungled the operation. Yet if the past is any guide, the crisis will pass, and continuity of U.S./Filipino relations will prevail in the security domain.

 

The Mamapasano incident is a clear instance of the new global security paradigm: the centrality of non-state actors, the role of covert operations by foreign special forces, the transnational dimensions of political conflict, the erosion of territorial sovereignty, the primacy of information and surveillance, and the hierarchical relationship between the United States and most governments in the global south. To make this last point evident, it is inconceivable that Filipino special forces would participate in an operation to capture persons residing in the United States suspected of affiliation with insurgent movements in the Philippines.

 

There is a complex redesign of world order underway, with one set of developments reshaping the political economy of globalization by way of the BRICs [but see acute skeptical analysis in William I Robinson, “The transnational state and the BRICS: a global capitalist perspective,” Third World Quarterly, 36(NO.1): 1-21 (2015)] and the Chinese initiative with respect to investment banking, [Asian Infrastructure Initiative Bank]; another set of developments concerned with securitization, ranging from the global surveillance apparatus disclosed by Edward Snowden to the incredible American global presence featuring over 700 foreign military bases and special forces units active in over 150 countries; and still another, is preoccupied with the rise of religion and civilizational identity as a political force, and what this means for stability and governance.

 

We still lack a language to assess this emergent world order, and possess no regulatory or normative framework within which to distinguish what is legitimate, prudent, and permissible from what is illegitimate, imprudent, and impermissible. Neither international law nor the UN have been able to adapt to the contemporary global agenda, and show few signs of an ability to do so. While this fluidity and normative uncertainty persists global warming worsens, the risks of nuclear war increase, and leading states shape their policies without accountability. It is not a time for complacency. Such a state of affairs is dangerous, and likely unsustainable. And yet what can be done remains elusive.

Stalking Netanyahu’s Victory: Palestine and Iran

21 Mar

 

 

(Prefatory Note: This is a much modified version of an article published online by Al Jazeera America on March 19, 2015; its ambition is to grasp the dual significance of the Likud victory for strengthening the role of civil society activism in the Palestinian struggle and with respect to the ongoing diplomacy associated with Iran nuclear program.)

 

 For Palestine:

My immediate reaction to the outcome of the Israeli elections is that for Palestinian solidarity purposes, it was desirable for Netanyahu to receive this electoral mandate. It exhibits as clearly as possible that the long discredited Oslo ‘peace process’ is truly discredited. But don’t believe that the call for bilateral talks will not be revived within the ranks of the so-called liberal Zionists. Already Israeli commentators, including Likud operatives, are saying that Israel would welcome a resumption of direct negotiations. In the words of the Likud Deputy Foreign Minister, Tzachi Hanegbi, “[w]e would be delighted to renew the negotiations..[i]t is to the benefit of both parties.” Really! Why wouldn’t they? How have the Palestinians benefitted during the past 22 years from these negotiations during which the Israel has been relentless in accomplishing the creeping annexation of the West Bank and the ethnic cleansing of East Jerusalem past the point of return? As Jeff Halper points out the only question about the future is whether Israel’s state will be secular and Democratic or Zionist with an apartheid apparatus of discrimination and exploitation.

 

And as for the embarrassment of Netanyahu’s pledge never to establish a Palestinian state in the closing days of his campaign, it can be put aside as we all know that Bibi is ‘a pragmatist’ who knows the difference between campaigning and governing. As a prominent Israeli think tank personality, Grin Grinstein, put it, Netanyahu now that he is securely elected can shift attention to his legacy, and will want to avoid Israel’s international isolation: “I would not rule out his going back to the two-state solution.” Neither would I, at least rhetorically and opportunistically. It should have long been obvious that there has never been an Israeli willingness to endorse a viable Palestinian state based on the equality of the two peoples, the sina qua non of a sustainable peace based on implementing the two-state consensus. The only way to understand this long afterlife of the two-state solution is that provided governments and decent people to hold onto a belief that a just solution to the conflict remained within reached, and that its attainment depended on ‘painful concessions’ made by both sides. Such a contrived myopia enabled liberal Zionists to pretend that Israel could remain democratic and Zionist, while not permanently dispossessing and subjugating the Palestinian people.

 

The cynically obvious conclusion is that when Netanyahu craves votes from the ultra-right in Israel he reassures Israelis that there will never be a Palestinian state so long as he remains the leader. When the election season is finished, then it is time to reassure Washington and Europe that he remains as committed as ever to the two-state mantra, with the unspoken clause, “so long as it remains a mantra.” What should disturb us most is the willingness of so many in the United States and elsewhere to embrace such tactics that consign the Palestinian people to the cruelty of their various circumstances (under occupation, in refugee camps, in exile, subject to blockade). Whether this last phase of disclosure associated with Netanyahu successful campaign strategy will offend the Obama presidency sufficiently to alter American foreign policy in the Middle East is uncertain at this point.

 

If the Zionist Union coalition of Isaac Herzog and Tzipi Livni had been elected on March 17th, liberal Zionists would undoubtedly have had a field day, proclaiming a new dawn, restoring good will and inter-governmental harmony in relations between Washington and Tel Aviv. Even now a leading liberal Zionist, the NY Times columnist, Roger Cohen, throws his support behind the idea of a ‘national unity government’ that would supposedly rein in the extremist tendencies of Netanyahu. It is also reported that Reuven Rivlin, Israel’s president and Likud member who is an avowed Zionist maximalist (that is, one Jewish state in all of historic Palestine) and unilateralist (‘peace’ by Israeli fiat without the bother of negotiations and diplomacy) is seeking to form such a unity government on the basis of the election results. Despite these views, Rivlin, unlike Netanyahu, is an advocate of human rights and equality for Palestinians living within whatever boundaries Israel achieves, a position almost as incapable of realization as the old delusionary embrace of the Oslo framework as something other than a device to allow Israel to consolidate its hold over the West Bank and East Jerusalem.

 

Principled liberal Zionists, such as Rabbi Michael Lerner and even more the admirable Haaretz columnist Gideon Levy, view Netanyahu’s reelection as an unconditional disaster both for what it means for Israel’s governing policies and even more so for what it tells us about the prevailing political culture of racism and militarism within Israel. In contrast, an ideological liberal Zionist of the Thomas Friedman variety laments the emergent picture is such a way as to distribute an equal portion of blame to the Palestinians, both Hamas and the Palestinian Authority. Ponder these slanted words: “It would be wrong to put all of this [blame] on Netanyahu. The insane, worthless war that Hamas started last summer that brought rockets to the edge of Israel’s main international airport and the Palestinians’ spurning of two-state offers of Israeli prime minister (Ehud Barak and Edud Olmert) built Netanyahu’s base as much as he did.” [NY Times, March 18, 2015] This pattern of distributing responsibility for the continuing oppression of the Palestinian people and the denial of their most fundamental rights to both sides equally is the most authentic signature of ideological liberal Zionists, purporting to be objective and balanced in assessing responsibilities while effectively supporting Israeli expansionism. Any reasonable assessment of the massive Protective Edge attack launched by Israel last July would acknowledge the Netanyahu provocations that started with the manipulation of the June kidnapping incident resulting in the murder of three young West Bank settlers and the anti-Hamas rampage that followed, as part of the timeline, not to mention Israel’s furious reaction to the unity agreement reached between the Palestinian Authority and Hamas some weeks earlier. As well, for Friedman to present the proposals of Barak and Olmert as offering the Palestinians equality and a viable state coupled with a recognition of the rights of Palestinian refugees, is to serve as a reckless purveyor of Israeli propaganda.

 

It is on the basis of repudiating such reasoning that the most credible advocates of Palestinian justice, otherwise as far apart as Ali Abunimah and Gilad Atzmon, agree that it is better that Netanyahu and the Likud won the election rather than their supposedly centrist opponents. These more upbeat commentaries on Netanyahu’s triumph believe that this heightened transparency relating to Israel’s true intentions will lead to a long overdue burial of Oslo-generated delusions about a diplomatic settlement of the conflict and that this will, in turn, awaken more of Western public opinion to the true nature of Israeli ambitions, and strengthen the BDS approach to peace with justice. This development should help people throughout the world understand that a positive outcome for the Palestinian national movement is utterly dependent on struggle and that diplomacy has nothing to offer at this time, nor does the revival of armed struggle.

 

From these perspectives, a positive future is dependent upon Palestinians waging and winning a Legitimacy War directed at realizing Palestinian rights under international law. This is the central argument of my recently published Palestine: The Legitimacy of Hope (Just World Books, 2015); see also to the same effect, Ali Abunimah, The Battle for Justice in Palestine (Haymarket Books, 2014). This reliance on civil society activism implies growing support in the court of public opinion being reinforced by a worldwide militant nonviolent solidarity movement that challenges Israel by way of such tactics as the BDS Campaign and Freedom Flotillas. It should be clear that such a movement from below is not seeking the delegitimation of Israel as such, but of its policies and practices that are precluding a just peace, which as of now presuppose the formation of a single democratic secular state with equal economic, political, social, and cultural rights for all residents regardless of ethnicity and religious identity.

 

On Iran Diplomacy:

 Unfortunately, in my view, this is not the whole story of the Israeli elections. The Netanyahu victory cannot be assessed exclusively through a Palestinian optic. The dangerous implications for broader regional issues of a Netanyahu controlled foreign security policy cannot be overlooked, nor the grave danger of coordination between the militarist approach to the Islamic world of the Likud Party in Israel and the Republican Party in the United States, or less dramatically, of a restored cooperative regional strategic partnership between the two countries. These concerns most obviously pertain to the prospects for a stable termination of the dangerous encounter with Iran. The Netanyahu/Republican approach is likely to have at least two harmful effects: shifting the internal Iranian balance toward a harder line and creating pressures in Iran and elsewhere in the Middle East to move closer to the acquisition of nuclear weaponry, which will likely cause a regional arms race, including the proliferation or near proliferation of nuclear weapons and/or be the proximate cause of one more devastating war within the region, which regardless of outcome is almost certain to strengthen ISIS and other extremist non-state actors throughout the Middle East.

 

Of course, the Netanyahu Republicans see this core conflict differently, more in the spirit of poker (than chess), supposing that raising the stakes in the game still higher will prompt Iran to fold. This does not seem plausible. If Iran’s efforts to accommodate the West (including Israel) by accepting an unprecedented level of regulation and foregoing a nuclear option despite Israel’s arsenal and threatening posture, would make additional constraints on Tehran depend on the willingness of a more hard line Iranian leadership to give way further than its moderate predecessors.

 

From this vantage point, the Lerner view of the Netanyahu victory as a major disaster for Israel and the world seems the most sensible interpretation, even if never fully consummated by the transformation of bluffs into policies, and not nearly as threatening as it will become if a Republican wins the presidential election in 2016. Even if Hilary Clinton rises to the occasion and is elected the next American president I would not invest much hopes that she will challenge the Netanyahu approach toward Iran except possibly in matters of style and at the margins. Even supposing, as now seems unlikely, that Rivlin convinces Likud to go along with his preference for a unity government it is almost certain to be dominated, especially in relation to security policy, by Netanyahu. Beyond this, even as Netanyahu shows his readiness to rehabilitate his never credible endorsement of a two-state solution for Palestine, confident that it will lead no further than in has over the decades, he is almost certainly not going to budge on Iran.

 

Why? It is entirely possible that Netanyahu has swallowed his own propaganda, and honestly believes that Iran poses a real threat to Israel’s security, and possibly survival, rather than seeing the calculus of fear the other way around. In actuality, it is Iran that is threatened, Israel that poses the existential threat. Beyond this, the Iran card has proved exceedingly helpful to Netanyahu, allowing him both to play on Israeli fears to build support at home and to divert international attention from Israel’s refusal to act reasonably and lawfully with respect to Palestine. In light of this combination of adverse circumstances, I am not sure what I would advise the Iranian government to do at this point other than to bide its time. If Netanyahu had been soundly defeated, then it would have made sense to do everything possible to reach an agreement while Obama is still in office. But now to invite a repudiation of whatever is agreed upon is to choose what would likely turn out to be the worst alternative available.

 

For these reasons, as helpful as Netanyahu’s electoral victory seems from the viewpoint of building a stronger Palestinian national movement, this political result in Israel is a definite setback from the perspective of resolving the conflict with Iran. Is there any way to separate these two concerns, taking advantage of Netanyahu’s victory in the Palestinian context while seeking at the same time to mobilize a movement favoring denuclearization of the Middle East as a vital ingredient of a peaceful future for the Middle East. This seems to be the challenge facing civil society activism that seeks justice for the Palestinians, peace for both peoples, and an end to fear-mongering and saber-rattling in relation to Iran.

 

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