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In Time of Pandemic Praise for the UN

3 Apr

 

IN TIIME OF PANDEMIC PRAISE FOR THE UN:

The UN Secretary General Promotes Global and Human interests

(Diirector General of WHO Guides Us)

 

Points of Departure

In recent years, the UN has seemed weak, almost irrelevant to many of the most disturbing global developments. It failed to stop genocide in Rwanda (1994) and Myanmar (2017-19), it has failed over several decades to end Israeli apartheid that is victimizing the Palestinian people and find peace for Israelis and Palestinians, it authorized a limited humanitarian protective use of force in Libya that immediately turned into an unauthorized and unlawful regime-changing intervention by NATO in Libya that brought ongoing chaos to the country, it has unacceptably stayed on the sidelines throughout Syrian and Yemeni ordeals as strife, massive civilian displacement, intervention, along with repeated crimes against humanity, were making a mockery of international humanitarian law, and it watched while disastrous fires burned out of control in the Amazon rainforest and Australia.

 

The UN is not an autonomous organization, and cannot be faulted for its failures, but its members can. The UN is essentially a political club run for the almost exclusive benefit of its member sovereign states, themselves largely controlled by its most powerful members. This control is exercised by way of funding, voting procedures, and informal modes of exerting influence within the Organization. The UN Charter provides a constitutional framework, which if it could engender compliance, would produce major, desirable, and fundamental global reforms, but the Charter says one thing, while international relations continue to operate according to the logic of militarism and geopolitics.  As well, there are some internal tensions written into the Charter, which contains unworkable procedures for taking account of changes in international life, including amending the text. This has given the UN a partially frozen image responsive to the realities of 1945, but increasing out of sync with the world of today.

 

During the Cold War the inability of the UN to fulfill its promises with respect to peace and security were largely explained by reference to paralyzing encounters between ‘the free world’ and ‘the Soviet bloc.’ Yet, after the collapse of the Soviet Union when a new consensus emerged among Permanent Members of the Security (P-5) not much changed. Many governments showed that they wanted to uphold sovereignty rights rather than be held internationally accountable according to standards set by human rights treaties or by reference to international law. The United States, in particular, insisted on freedom of geopolitical maneuver for itself and its allies, while pushing hard for accountability when dealing with adversaries. It became clear that a weak UN was consistent with the political priorities of almost all of its members, some sovereignty-oriented, a few geopolitically-oriented. At the same multilateralism, based on mutual benefit and global bargains gave the UN a useful role in facilitating global cooperation for the first fifty or so years of it existence, yet surprisingly not in the last 25 years up to the present.

 

These structural explanations of UN weakness were reinforced by cyclical political changes in the governing style of many important states. The rise of ultra-nationalist reactions to the failures of neoliberal globalization as post-Cold War and post-industrial capitalism revealed its predatory characteristics if not somewhat tamed by countervailing forces accentuated the state-centric framework of international relations that was implicitly hostile to any sources of authority external to the national political order. The kind of political leaders that were elected in dominant countries (U.S., UK, Brazil, India, Japan) exemplified this inward autocratic turn that was particularly opposed to global governance that accorded prominence to the United Nations. It reinforced autocratic trends in middle power democracies (Philippines, Turkey), as well as the embrace of ultra-nationalism by important non-democratic autocracies (Russia, China, Saudi Arabia, Egypt).

 

 

The UN Speaks for the Peoples of the World

 

Against such a background, it might come as a surprise that the UN has played an important role since a crisis awareness unfolded as the COVID-19 challenge became global in scope and severe in depth. The first sign of UN significance was the extent to which governments, the media, and the public looked to and depended upon the World Health Organization (WHO) for information and guidance. Although the WHO was not one of the political organs whose work is generally regarded as indicative of the success or failure of the UN as a world organization, it was ‘a specialized agency’ within the UN System that long had gathered and disseminated information about health issues, and performing vital roles for countries that lacked sophisticated national health services of their own.

 

What the COVID-19 experience made clear was the importance of information to virtually every person and governmental body on the planet, and the degree to which the WHO and its Director General were quickly established as a valued source of reliable and trustworthy information. The geopolitical rivalry between the U.S. and China, as well as a variety of conspiracy theories explaining the outbreak of the disease cloud our understanding of origins and nature of threat, and what to do about it. This sense of confusion is heightened by lots of huckstering claims being made on behalf of exotic products that purport to strengthen immune systems and resistance to the disease, as well as calls to adopt untested preventive tactics and unconventional treatments. Given such considerations, establishing public trust and informational reliability become paramount goals, and WHO and Tedros Adhanan Grebreyerus, its Director General, have risen to the occasion, gaining media credibility and worldwide respect.

 

The dramatic highpoint of WHO came on March 11th when this expert UN body officially declared that the Coronavirus disease causing a worldwide health crisis was a pandemic. Such a declaration was quickly adopted by governments, media, and publics around the world, escalating preventive efforts in the form of lockdowns, travel restrictions, self-isolation, and social distancing overnight. It was a tribute to the quasi-authoritative status on such matters that WHO achieved along with the recognition that no other comparable source of guidance or pronouncement existed in the world. What is more, the WHO determination came after a persuasive show of reluctance to alarm the world prematurely by invoking the incendiary word ‘pandemic.’ In retrospect, it is obvious that pandemic is to health what genocide is to human rights. Where the language of pandemic is appropriate, it is crucial to have such conditions authoritatively identified, and where conditions do not warrant arousing global alarm it is as important to refrain from inflammatory language. Also, relevant is that despite the diversity of perspectives in the world, no serious effort has been made to challenge the WHO’s pronouncement. This is an impressive defiance of the ultra-nationalist mood that has previously dominated policymaking in the last five or so years, and exhibited distrust and disrespect for the UN and its pronouncements.

 

A second reason that the UN has achieved an enhanced reputation during this period is that the voice of António Guterres, the UN Secretary General, has seemed to articulate proposals that transcend statist and geopolitical orientations, and take their cue from ideas about the wellbeing of humanity, as well as in support of global interests, rather than put manifest nationalistic approaches involving exclusions, walls, and militarized boundaries. So far national and geopolitical leaders have responded to the Guterres call for the suspension of economic sanctions or even more radically, for ‘a global ceasefire’ with silence. Geopolitical actors, especially the U.S. are unwlling to acknowledge the inappropriateness of maintaining sanctions and coercive diplomacy during the pandemic, but neither are such governments likely to criticize the Secretary General openly for speaking out, although arguably his reselection for a second term may have been placed in doubt. In this sense, Guterres has given renewed credibility to the idea that the head of the UN is the world’s leading moral authority figure, a position previously probably most widely accorded to Pope Francis, but with less global outreach as speaking on behalf of the Catholic Church.

 

What this pandemic has already made clear to many persons is the need for a normative global discourse when it comes to health, which as suggested here, means trust, reliability, and comprehensive and useful information, as well as moral leadership that is not being provided by either states or geopolitical actors. The UN stepped forward to fill this discursive gap in a manner that has already had an impact. Of course, whether a health crisis of pandemic proportions is a stepping stone to normative globalism on other issues can be hoped for, but is far from assured. In fact, there are reasons to be skeptical. Despite the magnitude of the pandemic crisis, the most geopolitical tinged organ of the UN, the Security Council, has not even spoken out to date, much less responsibly performed its cardinal role as guardian of the peace and security of the peoples of the world. If global governance reflected rationality and humane values, rather than hegemonic and nationalistic values, this Coronavirus authoritative discourse at the UN should be directly transferable to climate change, the overall ecological agenda, and fashioning a humane response to migrations flows. Such UN learning and adaptations outside the health domain seems doubtful at this point as doing so would amount to mounting successful challenges to the geopolitical discourse that has controlled the UN since its inception.

 

 If for Health, Why Not Climate Cnage, Biodiversity, Migration?

It had been previously evident that global cooperation was needed to address climate change and related ecological issues, and the UN did provide auspices for the Paris Climate Change Agreement in 2015, which has lagged subsequently, being a casualty of ultra-nationalist dismissal of global policy priorities and Trump’s withdrawal of the United States from further participation in the agreement, the leading per capita source of carbon emissions. There is no doubt that the pandemic has demonstrated the pragmatic benefits of a cooperative approach, as opposed to reliance on competitive national interest approaches to addressing problems causing serious harm and threats of truly global scope. The same benefits of cooperation evident in relation to a pandemic exist with respect to climate change and biodiversity, and to some extent more dramatically, as the dangers of such scientifically established trends are more knowable and menacing, while becoming less reversible than are singular events such as an outbreak of the COVID-19 disease.

 

Despite this, health is more amenable to a global approach than climate change or biodiversity even though the latter concerns possess a global reach that is beyond reasonable doubt. Perhaps the most salient difference relates to time/space characteristics. The pandemic is here and now, with people dying the world over on a daily basis digitally portrayed in real time, while the impacts of climate change and biodiversity, although certainly having present impacts, are perceived as being largely situated in the future or in mostly geographically remote and limited locales, thus remaining abstract and without mobilizing capability to aarouse the general public, and for this reason tend to become controversial, scorned and rejected by those whose material interests or religious outlook might suffer from timely adjustment. Perhaps, even more explanatory than reference to the interests at stake, is the related issue of the psychological relevance of concreteness. A Coronavirus infection threatens with lethal immediacy the body of every individual inhabiting the planet, and by now most persons know someone who has suffered from the disease. COVID-19 is not a matter of a dispersed threat such as arises from global warming or the seemingly remote threat that arises from the destruction of rainforests or a lessening of biodiversity. Finally, the authority of the UN with respect to health does not encroach upon traditional spheres of territorial sovereignty as is the case with peace and security and with the regulation of private and public sector activity that does harm to the environment. Even the Paris Agreement did not attempt to regulate military causes of carbon dissemination or impose remedies for non-compliance with national pledges to reduce carbon emissions.

 

Concluding Observations

In conclusion, there is much to learn from the pandemic even at this early stage, and possibly, as time passes a more impressive learning curve will become evident in reaction to the spread and prolonged character of this health crisis. There is little doubt that many governments will learn the lessons of the last war, and be better prepared with respect to the availability of adequate medical facilities to address future large-scale epidemics, including pandemics. And maybe, if civil society activism is alert to the opportunity, some spillover effects will occur leading to a renewed readiness of governments to cooperate for the sake of promoting global interests and protecting global public goods, and in the process reinvigorating the UN as a necessary site of authority, information, cooperation, and institutional legitimacy. It is also quite possible that the UN will be quickly remarginalized as private sector and governmental energies are focused on economy recovery in forms that benefit big constellations of capital and finance.

 

One additional cautionary observation seems appropriate. What the WHO and the SG of the UN have so far done during the health crisis, while worthy of headlines, posed no direct challenge to sovereignty or geopolitics. It is discursive with no behavioral or direct policy claims, although investing the crisis with the stature of a pandemic did have distinct, and perhaps profound effects, on national responses and public awareness. The grounds for low expectations is strengthened by the failure of the Security Council to step forward with initiatives or even commentary. The Security Council’s discursive silence is rather startling under the circumstances, failing even to encourage recourse to global mechanisms fostering regional and global cooperative responses. The fact that this most statist dimension of the UN had nothing to offer in the face of a global emergency of unprecedented globality and severity offer a guide to what the UN can and cannot do. Such a failure is less that of the UN as an institutional matrix than it is of the nature of geopolitically managed global governance, which has used the Security Council as a subsidiary instrument of control. Furthermore, health has an apolitical essence that is associated with the widespread belief in the sacredness of life, and thus offers resistance to the kind of cost/benefit thinking that is much weaker when the concerns are about economic activity or the sovereignty and security priorities of militarized states.     

Investigating Israeli Criminality at the International Criminal Court (ICC)

31 Mar

Investigating Israeli Criminality at the International Criminal Court (ICC)

 

[Prefatory Note: What is posted below is an Amicus Brief submitted to the International Criminal Court in The Hague on 16 March 2020 in the jurisdictional phase of a proceeding in which to initiate such a legal proceeding and whether the ICC has jurisdiction, that is, legal authority to investigate and possibly prosecute such alleged. As the Prosecutor indicated, the facts at her disposal indicate a basis for accepting Palestine’s request forPearce  an investigation of alleged Israeli criminal conduct on three clusters of issues: (1) military operations in Gaza in 2014, (2) unlawful aspects of Israeli settlements, aand (3) use of excessive force against protesters at the Gaza border in The Great March of Return. The focus of this procedural phase is whether Palestine is ‘a State’ in relation also suggest evidence of criminal behavior by Hamas that she believes within her jurisdictional orbit. The ICC has deferred further proceedings in view of the COVIS-19 pandemic, which has led to protests from concerned NGO groups and activists. The brief was prepared with major research assistance from Pearce Clancy and Susan Power of Al Haq for which I am extremely grateful. In the background is the undisguised and bitter hostility of the Government of Israel and its political leaders to Palestine for seeking an international assessment of their contention of Israeli criminality almost as if a legal challenge to Israeli impunity is itself immoral. The United States vents its fury and threats in an analogous manner at the ICC because it had the temerity to agree to investigate charges of U.S, war crimes in Afghanistan. There will be no global rule of law so long as geopolitical actors are made the beneficiaries of double standards in the application and implementation of international law. Earlier the ICC was almost solely preoccupied with allegations involving Africa, and there was an understandable African complaint that its countries were being singled out, while criminality of the West was not even investigated. While this turn by the ICC angering Israel and the United States delegitimizes the ICC for the hegemonic West, it lends the ICC much needed legitimacy among many non-Western States and most human rights NGOs.]   

 

 

Original: English

No.: ICC-01/18
Date: 16 March 2020

Before:

Judge Péter Kovács, Presiding Judge
Judge Marc Perrin de Brichambaut
Judge Reine Adélaïde Sophie Alapini-Gansou

SITUATION IN THE STATE OF PALESTINE

Professor Richard Falk

PRE-TRIAL CHAMBER I

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Public
Amicus Curiae Submissions Pursuant to Rule 103

Source:

No. ICC-01/18 1/29 16 March 2020

Document to be notified in accordance with regulation 31 of the Regulations of the Court to:

The Office of the Prosecutor

Ms Fatou Bensoua, Prosecutor
Mr James Stewart, Deputy Prosecutor

Legal Representatives of the Victims

Unrepresented Victims

The Office of Public Counsel for Victims

Paolina Massida

States’ Representatives

The competent authorities of the State of Palestine

REGISTRY

Counsel for the Defence

Legal Representatives of the Applicants

Unrepresented Applicants (Participation/Reparation)

The Office of Public Counsel for the Defence

Amicus Curiae

  • ·
  • ·
  • ···
  • ····
  • ·

Professor John Quigley
Guernica 37 International Justice Chambers
The European Centre for Law and Justice
Professor Hatem Bazian
The Touro Institute on Human Rights and the Holocaust
The Czech Republic
The Israel Bar Association
Professor Richard Falk
The Organization of Islamic Cooperation
The Lawfare Project, the Institute for NGO Research, Palestinian Media Watch, and the Jerusalem Center for Public Affairs
MyAQSA Foundation
Professor Eyal Benvenisti
The Federal Republic of Germany Australia
UK Lawyers for Israel, B’nai B’rith UK, the International Legal Forum, the Jerusalem Initiative and the Simon Wiesenthal Centre
The Palestinian Bar Association
Prof. Laurie Blank, Dr. Matthijs de Blois, Prof. Geoffrey Corn, Dr. Daphné Richemond- Barak, Prof.

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No. ICC-01/18

2/29

16 March 2020

Gregory Rose, Prof. Robbie Sabel, Prof. Gil Troy and Mr. Andrew Tucker The International Association of Jewish Lawyers and Jurists

Professor Asem Khalil and Assistant Professor Halla Shoaibi
Shurat Hadin – Israel Law Center Todd F. Buchwald and Stephen J. Rapp

Intellectum Scientific Society
The International Commission of Jurists
Dr. Robert Heinsch and Dr. Giulia Pinzauti
The Republic of Austria
The International Association of Democratic Lawyers
The Office of Public Counsel for the Defence
The Honourable Professor Robert Badinter, the Honourable Professor Irwin Cotler, Professor David Crane, Professor Jean-François Gaudreault- DesBiens, Lord David Pannick and Professor Guglielmo Verdirame
The Palestinian Center for Human Rights, Al-Haq Law in the Service of Mankind, Al- Mezan Center for Human Rights and Aldameer Association for Human Rights
The Federative Republic of Brazil Professor Malcolm N Shaw
Hungary
Ambassador Dennis Ross
The International Federation for Human Rights, No Peace Without Justice, Women’s Initiatives for Gender Justice and REDRESS Professor William Schabas International-Lawyers.org
The League of Arab States
Me Yael Vias Gvirsman
The Popular Conference for Palestinians Abroad
The Israel Forever Foundation
Dr. Frank Romano
Dr. Uri Weiss
The Republic of Uganda

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No. ICC-01/18 3/29

16 March 2020

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Registrar Counsel Support Section

Peter Lewis

Victims and Witnesses Unit Detention Section

Victims Participation and Reparations Other Section
Philipp Ambach

No. ICC-01/18 4/29 16 March 2020

  1. Introduction
  1. Following the submission of an application for leave to submit as part of the present proceedings,1 and its subsequent acceptance by this Chamber,2 this amicus curiae submission will address the question directed to the Chamber, namely that of the territorial jurisdiction of the Court in a future investigation into the Situation in Palestine.3
  2. Mindful of the fact that a pronouncement by the Chamber on the question of jurisdiction at this stage is controversial,4 this amicus argues that should a ruling be made at this stage, it must recognise the jurisdiction of the State of Palestine as pertaining to the entirety of the occupied Palestinian territory, comprising the West Bank, including East Jerusalem, and the Gaza Strip. The legal argument will be presented in two stages. Section II will deal with the underlying question of Palestinian statehood under international law, noted as a prerequisite for invoking the jurisdiction of this Court by the State of Palestine, arguing that the Court should be satisfied that Palestine’s status as a State for the purposes of the Court’s statutory framework allows exercise of such authority, and that the principles of interpretation by which the Court operates mandates such a conclusion. Section III will regard the question of statehood as resolved, and address the territorial jurisdiction of each component of

1 Richard Falk, Request for Leave to File Submission Pursuant to Rule 103 of the Rules of Procedure and Evidence (13 February 2020) ICC-01/18-24.

2 ICC, Decision on Applications for Leave to File Observations Pursuant to Rule 103 of the Rules of Procedure and Evidence (20 February 2020) ICC-01/18, para 55, 56.

3 See ICC, Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine (22 January 2020) ICC-1/18-12 (henceforth the “Request”) at para 220.

4 ICC, Request Under Regulation 46(3) of the Regulations of the Court: Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute (6 September 2018) ICC-RoC46(3)-01/18, para 27; ICC, Partially Dissenting Opinion of Judge Marc Perrin de Brichambaut (6 September 2018) ICC- RoC46(3)-01/18-37-Anx; see, however, Anthony Abato, ‘False Positives, False Negatives, and Prosecutorial Discretion regarding the Jurisdiction of the ICC (9 March 2020), available at: https://www.ejiltalk.org/false- positives-false-negatives-and-prosecutorial-discretion-regarding-the-jurisdiction-of-the-icc/: “When faced with difficult jurisdictional questions, such as those in the Situation in the State of Palestine, the PTC should not shy away. It now has the opportunity to conduct an open, participatory proceeding capable of providing legal certainty to those involved. Ultimately, if the PTC finds in favour of the Prosecutor, its ruling will remove the perceived arbitrariness that may otherwise unduly cast a shadow over the Prosecutor’s decision to investigate.”

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occupied Palestinian territory, arguing that the Court’s jurisdiction extends to the West Bank, East Jerusalem, and the Gaza Strip.

  1. The Issue of Statehood
  1. While recognising the scope set by the Pre-Trial Chamber (PTC) within which amici curiae have been requested to abide, I concur with the recognition by the Prosecutor that the Court’s territorial jurisdiction over the territory belonging to the State of Palestine is contingent upon the legitimacy of that State’s claim to statehood.5 Accordingly, and as outlined in the Request for Leave pursuant to Rule 103 of the Rules of Procedure and Evidence,6 this section will provide a brief analysis of the question of Palestinian statehood within the framework of the Rome Statute.7
  2. It is submitted that as a matter of substantive international law, Palestinian statehood has been resolved. While not indicative of statehood in and of itself,8 the recognition thereof by the United Nations (UN) General Assembly in Resolution 67/19 of 4 December 20129 is indicative of widespread academic opinion and State practice.10 Also highly relevant, the

5 Request at para 7; see also Article 12, Rome Statute of the International Criminal Court (adopted 17 July 1998, entry into force 1 July 2002) 2187 UNTS 3 (henceforth the “Rome Statute”).

6 ICC, Rules of Evidence and Procedure (2nd edn, 2013).
7 See Richard Falk, Request for Leave to File Submission Pursuant to Rule 103 of the Rules of Procedure and

Evidence (13 February 2020) ICC-01/18-24, at para 4.

8 Valentina Azarov and Chantal Meloni, ‘Disentangling the Knots: A comment on Ambos’ ‘Palestine, ‘Non- Member Observer’ Status and ICC Jurisdiction’’ (27 May 2014) EJIL:Talk!, available at: https://www.ejiltalk.org/disentangling-the-knots-a-comment-on-ambos-palestine-non-member-observer-status- and-icc-jurisdiction/#more-10954; it has been compellingly argued that the modern Palestinian State long pre- dates recognition by the General Assembly, see, inter alia, Victor Kattan, ‘Muddying the Waters: A Reply to Kay and Kern on the Statehood of Palestine and the ICC – Part I’ (9 August 2019) Opinio Juris, available at: https://opiniojuris.org/2019/08/09/muddying-the-waters-a-reply-to-kay-and-kern-on-the-statehood-of-palestine- and-the-icc-part-i/; Victor Kattan, ‘Muddying the Waters Still Further: A Response to Steven Kay and Joshua Kern’ (20 August 2019) Opinio Juris, available at: https://opiniojuris.org/2019/08/20/muddying-the-waters-still- further-a-response-to-steven-kay-and-joshua-kern/.

9 UN General Assembly Resolution 67/19 (4 December 2012) UN Doc. A/RES/67/19 at para 2: “[d]ecides to accord to Palestine non-member observer State status” (emphasis added).

10 See, inter alia, John Quigley, ‘ICC and Palestine Symposium: General Assembly Resolution 67/19 and Palestine as a State before the ICC’ (5 February 2020) Opinio Juris, available at: https://opiniojuris.org/2020/02/05/icc-and-palestine-symposium-general-assembly-resolution-67-19-and- palestine-as-a-state-before-the-icc/, arguing that Resolution 67/19 was conclusive; also John Quigley, ‘Palestine is a State so the Consent Declaration is a Valid Basis for Investigation by the ICC’ in Richard H Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Bril Nijhoff, 2016).

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State of Palestine has been diplomatically recognised by a reported 140 States,11 has been afforded full membership of the UN Educational, Scientific and Cultural Organization (UNESCO),12 inducted into the Court’s Assembly of States Parties (ASP),13 recognised and been reviewed by UN human rights treaty bodies, including the UN Committee on the Elimination of Discrimination against Women (CEDAW) in July 201814, the UN Committee for the Elimination of Racial Discrimination (CERD) in August 201915, the UN Committee on the Rights of the Child (CRC) in January 202016, and soon the UN Committee Against Torture (CAT)17, as being capable of conferring jurisdiction under the relevant international human rights treaties, while it has further acceded to myriad international

11 As reported in UN General Assembly, Report of the Committee on the Exercise of the Inalienable Rights of the Palestinian People (4 August 2019) UN Doc A/74/35, para 17.

12 UNESCO, General Conference admits Palestine as UNESCO Member (31 October 2011), available at:

http://www.unesco.org/new/en/media-services/single- view/news/general_conference_admits_palestine_as_unesco_member/; UNESCO, Records of the General Conference, 36th session (25 October-10 November 2011) VI General Resolutions, at para 76; note also that considerable weigh has been put on Palestine’s status as a UNESCO member, see Jure Vidmar, ‘Palestine v United States: Why the ICJ does not need to decide whether Palestine is a state’ (22 November 2018) available at: https://www.ejiltalk.org/palestine-v-united-states-why-the-icj-does-not-need-to-decide-whether-palestine-is- a-state/; William Schabas, ‘Relevant Depositary Practice of the Secretary-General and its Bearing on Palestinian Accession to the Rome Statute’ (3 November 2011) PhD studies in human rights, available at: http://humanrightsdoctorate.blogspot.com/2011/11/relevant-depositary-practice-of.html; Michael Kearney, ‘The Situation in Palestine’ (5 April 2012) Opinio Juris, available at: http://opiniojuris.org/2012/04/05/the-situation- in-palestine/.

13 ICC, Welcoming ceremony for a new State Party: State of Palestine (1 April 2015).

14 See Article 25, Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entry into force 3 September 1981) 1249 UNTS 13: “The present Convention shall be open for signature by all States”; see also CEDAW, Concluding Observations: State of Palestine (25 July 2018) UN Doc CEDAW/C/PSE/CO/1.

15 See Article 17(1), International Convention on the Elimination of All Forms of Racial Discrimination (adopted 7 March 1966, entry into force 4 January 1969) 660 UNTS 195 (henceforth “ICERD”): “This Convention is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to this Convention”; CERD, Concluding Observations: State of Palestine (20 September 2019) UN Doc CERD/C/PSE/CO/1-2; see also decision at CERD, Inter-State communication submitted by the State of Palestine against Israel (12 December 2019) UN Doc CERD/C/100/5 (henceforth the “CERD Decision”).

16 See Article 46, Convention on the Rights of the Child (adopted 20 November 1989, entry into force 2 September 1990) 1577 UNTS 3: “The present Convention shall be open for signature by all States”; see also CRC, Concluding Observations: State of Palestine (6 March 2020) UN Doc CRC/C/PSE/CO/1.

17 Article 25, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entry into force 26 June 1987) 1465 UNTS 85: “This Convention is open for signature by all States”; see also Palestine’s State Report: State of Palestine, Initial report submitted by the State of Palestine under article 19 of the Convention, due in 2015(26 August 2019) UN Doc CAT/C/PSE/1.

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treaties and human rights instruments, including the Apartheid Convention18, Rome Statute,

the four Geneva Conventions and their Additional Protocols.19

  1. Nonetheless, an analysis as to statehood appears to be necessary, given the prerequisite

found in Article 12, as well as the corpus of argumentation outlined in amici applications in preparation of the current proceedings. That said, it is submitted that the PTC is bound to consider this issue as a matter of procedural, as opposed to substantive law. I agree with the Prosecutor in her opinion that the determination to be made by the Court is not whether Palestine constitutes a State as a matter of general international law, but solely for the purposes of the Court’s jurisdiction under the Rome Statute.20

  1. The PTC therefore need not consider what have been dubbed the “Montevideo Criteria”21 of statehood.22 Instead, the PTC need only consider whether the referral submitted by the State of Palestine23 is consistent with the terms of Article 12(2)(a) of the Rome Statute, having reference to the accepted rules of interpretation outlined in the Vienna Convention

18 International Convention on the Suppression and Punishment of the Crime of Apartheid (adopted 30 November 1973, entry into force 18 July 1976) UN General Assembly Resolution A/RES/3068(XXVIII).

19 Request, para 127; note also Victor Kattan, ‘The Implications of Joining the ICC after Operation Protective Edge’ (2014) 44(1) Journal of Palestine Studies 63: “The ability to sign, ratify, and accede to treaties is important because it is considered to be one of the essential attributes of statehood.”

20 Request, para 42, 111; Alain Pellet, ‘The Effects of Palestine’s Recognition of the International Criminal Court’s Jurisdiction’ (2010) 6, available at: https://iccforum.com/media/background/gaza/2010-02-18_Pellet- Memo_(English_Translation).pdf.

21 Article 1, Montevideo Convention on the Rights and Duties of States (adopted 26 December 1933, entry into force 26 December 1934): “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states.”

22 In any case, the Montevideo Criteria should not be viewed as a rigid yardstick with which to judge statehood, on this, and the context in which the Convention was drafted, see Quigley op cit (2020); see also James Crawford, The Creation of States in International Law (2nd edn, Oxford University Press, 2007) at 437: “… the formula represented in the Montevideo Convention is considered to a certain extent insufficient and outdated, even hackneyed.”

23 State of Palestine, Referral by the State of Palestine Pursuant to Articles 13(a) and 14 of the Rome Statute (15 May 2018).

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on the Law of Treaties,24 and the object and purpose of the Rome Statute, namely to end

impunity for international crimes.25

  1. As the Prosecutor has compellingly argued, the status of a “State” within the context of

Articles 12(1), 12(2), and 125(3) of the Rome Statute, being consistent throughout, has been concretely achieved by the deposit of Palestine’s instrument of accession with the UN Secretary-General.26 The so-called “all States” formula embedded in the framework of the Rome Statute27 necessarily links the eligibility criteria for accession to determinations of the General Assembly.28 Thus, accession to the Rome Statute contains an implicit “statehood check”, whereby the Secretary-General confirms whether the entity attempting to accede constitutes a State under international law. While deference to the pronouncements of the General Assembly is controversial to some observers, it must be stressed that this approach is consistent with previous Court practice regarding Palestine,29 and is desirable to avoid a situation in which the final pronouncement on statehood for the purposes of a given instrument falls entirely on the Secretary-General.30

  1. The question, therefore, is not whether Palestine constitutes a State as such, but whether, through its accession to the Rome Statute, as well as other instruments and fora, it has

24 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entry into force 27 January 1980) 1155 UNTS 331 (henceforth the “VCLT”).

25 Request, para 29: “to end impunity and ensure that the Court’s jurisdiction is triggered responsibly and lawfully”; ICC, Separate Opinion of Judge Péter Kovács (27 January 2016) ICC-01/15-12-Anx-Corr, para 65: “a policy running against the basic philosophy of the ICC, namely to end impunity”; Preamble, Rome Statute: “the most serious crimes of concern to the international community as a whole must not go unpunished”; Michail Vagias, The Territorial Jurisdiction of the International Criminal Court (Cambridge University Press, 2014) 77: “… its role is also geared towards preventing or deterring future atrocities”; interestingly it is worth noting Vidmar’s contention, op cit, in the context of the International Court of Justice: “… regulating an entity’s legal status is clearly not the object and purpose of the treaty” (emphasis added).

26 Request, para 103.
27 Article 125(3), Rome Statute.

28 See Treaty Section, UN Office of Legal Affairs, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties (1999) UN Doc. ST/LEG/7/Rev.1, paras 81-83.

29 While the former Prosecutor refrained from opening an investigation due to concerns of jurisdiction, his analysis suggests that his Office’s position would have been different had the General Assembly passed Resolution 67/19 by that time, see Office of the Prosecutor, Situation in Palestine (3 April 2012) at paras 5, 7, available at: https://www.icc-cpi.int/NR/rdonlyres/9B651B80-EC43-4945-BF5A- FAFF5F334B92/284387/SituationinPalestine030412ENG.pdf.

30 Request, para 109.

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9.

attained the full suite of rights and obligations found therein; here, the answer should be in the affirmative, given Palestine’s acceptance as both a State Party and functional member of the international community. This approach, referred to as the “functionalist approach” has a strong basis elsewhere in the field of international law,31 and has been widely endorsed, explicitly or otherwise, by commentators as the appropriate lens for the Court.32 This was appreciated recently by CERD in its jurisdictional finding on the Inter-State Complaint submitted by Palestine, which did find it necessary to extend its analysis beyond Palestine’s status, and functional capacity to act, as a State Party to ICERD.33

Moreover, it should be stressed that this approach is not merely consistent with the object and purpose of the Rome Statute, but is arguably mandated by the “General Rule” of interpretation.34 As previously affirmed by the Court, this judicial body is not permitted to decline to draw on a particular element of the “General Rule”,35 and should interpret all sources of law in light of the object and purpose of the Rome Statute,36 while doing what is necessary to avoid results that are unreasonable, or produce absurdities and unjust results.37 The Rome Statute thus requires its interpretation to be carried out in light of internationally

31 While not directly applicable to the Rome Statute framework, the best example of this is the so-called “Vienna Formula”, stemming from Article 81, VCLT, see: Schabas op cit; on the prevalence of functionalism elsewhere, see Pellet op cit, para 9.

32 See, inter alia: Valentina Azarova and Triestino Mariniello, ‘Why the ICC Needs a ‘Palestine Situation’ (More than Palestine Needs the ICC): On the Court’s Potential Role(s) in the Israeli-Palestinian Context’ (2017) 11(1) Diritti Umani e Diritto Internazionale (Human Rights and International Law) 152-154; Pellet op cit; Kai Ambos, ‘Palestine, UN Non-Member Observer Status and ICC Jurisdiction’ (6 May 2014) EJIL:Talk!, available at: https://www.ejiltalk.org/palestine-un-non-member-observer-status-and-icc-jurisdiction/; Michael Kearney, ‘Palestine and the International Criminal Court: Asking the Right Question’ in Richard H Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Bril Nijhoff, 2016) 31-35; Yuval Shany, ‘In Defence of Functional Interpretation of Article 12(3) of the Rome Statute: A Response to Yaël Ronen’ (2010) 8 Journal of International Criminal Justice 329; Al-Haq, Position paper on issues arising from the PA submission of a Declaration to the Prosecutor of the ICC under Article 12(3) of the Rome Statute (14 December 2009).

33 CERD Decision, para 3.9. 34 Article 31(1), VCLT.

35 ICC, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v Germain Katanga: Judgement pursuant to article 74 of the Statute (7 March 2014) ICC-01/04-01/07, para 44.

36 Ibid., 47.
37 ICC, Situation in the Central African Republic in the Case of the Prosecutor v Jean-Pierre Bemba Gombo (21

March 2016) ICC-01/05-01/18, paras 80-81.

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recognised human rights norms,38 which must necessarily include the long recognised right of the Palestinian people to self-determination, a jus cogens norm,39 which gives rise to obligations erga omnes, binding on all States.40 As certain acts by the State of Israel in the occupied Palestinian territory create obligations of such a character,41 this must be considered in the PTC’s interpretative calculus. The Prosecutor alludes to this in her Request, wherein she notes that “[i]t would appear contrary to the principle of effectiveness42 and good faith to allow an entity to join the ICC but then to deny the rights and obligations of accession … the Statute does not provide for or regulate the implications of a negative determination of statehood by the Court.”43

  1. It is useful to dwell on the implications of a negative determination of Palestine’s standing as a State Party before the Court: “[w]ould a referral and the deposit of the instrument of accession … be deemed invalid? Would that State Party be expelled from the Court? Or would it become a sui generis State Party which can still participate and vote in the ASP … even though the Court may not have jurisdiction over such a State?”44 If such a perverse approach were adopted, Palestine would be rendered as akin to a “legal black hole”, despite its accession.45

38 Article 21(3), Rome Statute.

39 Antonio Cassese, International Law (2nd edn, Oxford University Press, 2005) 65; Malcolm N Shaw, International Law (6th edn, Cambridge University Press, 2008) 808; James Crawford, ‘Opinion: Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories’ (25 January 2012) para 26, available at: https://www.tuc.org.uk/sites/default/files/tucfiles/LegalOpinionIsraeliSettlements.pdf.

40 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia [South West Africa] Notwithstanding Security Council Resolution 276 (Advisory Opinion) (1971) para 29 (henceforth the “Namibia Opinion”).

41 ICJ, Legal Consequences of the Construction of a Wall (Advisory Opinion) (2004) para 155-156 (henceforth the “Wall Opinion”).

42 Defined in ICC, Joint Concurring Opinion of Judges Eboe-Osuji,Morrison, Hofmanski and Bossa (6 May 2019) ICC-02/05-01/09-397-Anx1 at para 419: “a principle which gives preference to that interpretation of a treaty which best promotes its major purposes”, quoting Myers McDougal and Richard Gardner, ‘The Veto and the Charter: An Interpretation for Survival’ (1951) 60 Yale Law Journal 261.

43 Request, para 114. 44 Ibid.
45 Shany, op cit, 337.

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  1. It would therefore appear that, in any event, a negative determination by the PTC at this stage would be manifestly incompatible with the object and purpose of the Rome Statute and the inclusive goals of the Court. As such, attempting to deviate from the functionalist approach, outlined above and adopted by CERD, and to apply the so-called “Montevideo criteria”, would seem an ultra vires act by the Court, as well as being an overly rigid and ill-advised step inconsistent with “the basic philosophy” of the Court which “might result in an increase in the impunity gap.”46

III. The Issue of Territorial Jurisdiction

  1. The issue of statehood so resolved, the amicus observations now turn to the territorial scope of a potential future investigation.47 It is submitted that the same principles and rules of interpretation that guide the Chamber in its determination on the issue of Palestinian statehood should also apply here. With due regard for the “General Rule”, the principle of effectiveness, and due regard for internationally recognised norms of human rights, particularly the collective right of self-determination, it is clear that to provide a meaningful method with which to end impunity for international crimes, the scope of a future investigation by the Prosecutor should encompass the entirety of the occupied Palestinian territory, namely the West Bank, including East Jerusalem, and the Gaza Strip. Moreover, as noted by the Prosecutor, it is appropriate to stress that a determination as to jurisdictional scope here should not be conflated with a delineation of the Palestinian territorial claim as such.48
  2. While an extended analysis of the events leading to the beginning of the occupation of the occupied Palestinian territory in 1967 does not require reiterating here,49 and will

46 Kovács, op cit, para 65.

47 See Request, para 190.

48 Ibid., 192.

49 For helpful narration, see Ardi Imseis, ‘On the Fourth Geneva Convention and the Occupied Palestinian Territory’ (2003) 44(1) Harvard International Law Journal 69-85; for events prior to 1948, see also Victor

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doubtlessly be provided in detail by other amici, it is useful at this stage to recall the status of the occupied Palestinian territory as occupied since 1967, as it represents the current Palestinian State’s territorial claim.50 This claim has been bolstered51 by the territorial nature of the Palestinian right to self-determination, including permanent sovereignty over natural wealth and resources, as repeatedly recognised by, inter alia, the UN General Assembly,52 the Human Rights Council,53 and the ICJ.54 Accordingly, just as the Chamber is bound to consider this right in its interpretation on the issue of statehood, it should be considered during its analysis as to the extent of its jurisdiction.

  1. Moreover, the legal importance of the maintenance of the character of the occupied Palestinian territory, encompassing the West Bank, including East Jerusalem, and the Gaza Strip, as a single territorial unit, has been repeatedly recognised by the international community, including by the UN Security Council,55 and General Assembly.56 It is further

Kattan, From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict, 1891- 1949 (Pluto Press, 2009).

50 See ICJ, Written Statement Submitted by Palestine (30 January 2004) para 547; State of Palestine, Referral by the State of Palestine Pursuant to Articles 13(a) and 14 of the Rome Statute (15 Mary 2018), fn 4.

51 On this see Request, para 194, fn. 612, quoting Robert Jennings and Arthur Watts, Oppenheim’s International Law Vol. 1, Peace: Parts 2 to 4 (Longman, 1996) para 274: “[i]t is clear that the injection of a legal principle of self-determination into the law about acquisition and loss of territorial sovereignty is both important and innovative. State and territory are, in the traditional law, complementary terms. Normally only a state can possess a territory, yet that possession of a territory is the essence of the definition of state. The infusion of the concept of the rights of a ‘people’ into this legal scheme is therefore a change which is more fundamental than at first appears”; see also Crawford op cit, para 29: “In light of the principle of self-determination, sovereignty and title in an occupied territory are not vested in the occupying power but remain with the population under occupation. As such, Israel does not acquire a legal right to or interest in land in the West Bank purely on the basis of its status as an occupier.”

52 See, inter alia, UN General Assembly Resolutions: 2649 (XXV) (30 November 1970) para 5; 67/19 (4 December 2012) UN Doc A/RES/67/19, para 1,4; 70/15 (4 December 2015) UN Doc A/RES/70/15, para 21(b); 71/23 (15 December 2016) UN Doc A/RES/71/23, para 22(b); 72/14 (7 December 2017) UN Doc A/RES/72/14, para 24(b); 793/96 (18 December 2018), preamble; 73/19 (5 December 2018) UN Doc A/RES/73/19, para 22(b); 73/255 (15 January 2019) UN Doc A/RES/73/255 para 1; 73/158 (9 January 2019) UN Doc A/RES/73/158.

53 Most recently, UN Human Rights Council Resolution 40/24 (17 April 2019) UN Doc A/HRC/RES/40/24. 54 Wall Opinion, para 122.

55 The Security Council declared any attempts to alter the “physical character, demographic composition, institutional structure, or status” of the oPt as being of “no legal validity” and “a flagrant violation of the Fourth Geneva Convention … and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace”, UN Security Council Resolution 465 (1 March 1980) UN Doc S/RES/465, para 5; see also Resolution 2334 (23 December 2016) UN Doc S/RES/2334, para 3.

56 UN General Assembly Resolutions: 70/15 (4 December 2015) UN Doc A/RES/70/15, para 11; 71/23 (15 December 2016) UN Doc A/RES/71/23 para 12; 72/14 (7 December 2017) UN Doc A/RES/72/14 para 13; 73/19 (5 December 2018) UN Doc A/RES/73/19 para 13; 74/11 (9 December 2019) UN Doc A/RES/74/11, para 8.

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necessary to clarify that Palestine’s claim to its territory, or indeed that of any State, is not contingent on having “defined and settled boundaries”57 or the exclusive authority to exercise jurisdiction, of any kind, therein.

  1. Nonetheless, due to the idiosyncratic legal complexities imposed by Israel upon each of the three geographic domains of the occupied Palestinian territory (the West Bank, including East Jerusalem, and the Gaza Strip), as part of the former’s campaign of strategic fragmentation imposed upon the Palestinian people as a whole,58 it is worth considering each territorial domain so as to clarify their specific relationship to the overall territorial claims of the State of Palestine, and as such to the scope of the Court’s jurisdiction.
  2. West Bank
  3. As noted above, the West Bank has been under belligerent Israeli military occupation since the 1967 War,59 which triggered the applicability of the Fourth Geneva Convention60 and Hague Regulations61 throughout the occupied Palestinian territory. Later, in 1993, a process began whereby the Palestine Liberation Organisation (PLO) and the State of Israel produced what became known as the Oslo Accords, which divided the West Bank into Areas A, B, and C.62 For the purposes of this analysis, it should be noted that a core aspect of these

57 Shaw, quoted in Request, fn. 608.

58 On this, see throughout UN ESCWA, Israeli Practices towards the Palestinian People and the Question of Apartheid, Palestine and the Israeli Occupation, Issue No. 1, (2017) UN Doc E/ESCWA/ECRI/2017/1; see also, Al-Haq, et al, Joint Parallel Report to the United Nations Committee on the Elimination of Racial Discrimination on Israel’s Seventeenth to Nineteenth Periodic Reports (10 November 2019), available at: http://www.alhaq.org/cached_uploads/download/2019/11/12/joint-parallel-report-to-cerd-on-israel-s-17th-19th- periodic-reports-10-november-2019-final-1573563352.pdf.

59 Wall Opinion, para 73, 101.
60 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949,

entry into force 21 October 1950) 75 UNTS 287 (henceforth the “Fourth Geneva Convention”).

61 Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land) (adopted 18 October 1907, entry into force 26 January 1910) (henceforth the “Hague Regulations”).

62 See Request, para 68.
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agreements is the exclusion of all Israelis in the occupied Palestinian territory from

Palestinian criminal jurisdiction.63

  1. A key component of the occupation’s machinery has been the construction and maintenance

of illegal Israeli settlements in the West Bank, including East Jerusalem.64 These settlements have largely been constructed on appropriated Palestinian land, which is typically seized under the pretext of “military necessity”, or through its designation, by the Israeli occupying authorities, as “State” or abandoned land65, and are predominantly located in Area C, which the Oslo Accords identify as being subject to Israeli jurisdictional control.

  1. It is submitted, in line with the analysis put forward by the Prosecutor, that the Oslo process, constitutive of “Oslo I” and “Oslo II”, does not create a legal barrier or challenge to the territorial jurisdiction of the State of Palestine, and therefore the Court.66 First, the Oslo Accords constitute a “special agreement” for the purposes of the Fourth Geneva Convention, and as such cannot deprive the Palestinian people of their inalienable rights and protections under international law and the Fourth Geneva Convention.67 Accordingly, the fact that the PLO has entered into such agreements with the State of Israel may not be interpreted as having relinquished the right of self-determination and permanent sovereignty over natural resources inherent to the Palestinian people, nor can it be interpreted as constituting a renunciation of any other rights conferred upon the protected population.

63 Ibid., para 70.

64 For a timeline of the Israeli settler enterprise, see UN Human Rights Council, Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East-Jerusalem (7 February 2013) UN Doc A/HRC/22/63, para 24-30.

65 Ibid., 20.
66 See Request, para 183.

67 Articles 7, Fourth Geneva Convention; Request, para 186; see also Basheer AlZoughbi, ‘The Operation of the Oslo Treaties and the Pacific Mechanisms of Conflict Resolution under Public International Law’ (2013) 45(2) Peace Research 39-40: “The transfer of power that was introduced in the aftermath of the Oslo Accords as a result of the agreements concluded between the PLO and Israel changed neither the status of the Occupied Palestinian Territory nor that of protected persons who were being deprived of the benefits of the 1949 Fourth Geneva Convention on a continuous basis … Thus, according to the Fourth Geneva Convention, Israel has legal obligations to honour the rights and ensure the welfare of those under occupation.”

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  1. Moreover, as also recognised by the Prosecutor, the provisions of Oslo II regarding the regulation of the jurisdiction of the Palestinian National Authority (PNA) relates solely to enforcement, as opposed to prescriptive jurisdiction, i.e. the ability to enforce, as opposed to create, law.68 Stahn, referenced extensively by the Prosecutor,69 draws this distinction most clearly: noting the separation of jurisdiction into these two categories, he contends that “[a]ny other conception would have detrimental consequences for international law. It would imply that a state that is unable to exercise jurisdiction over specific parts of its territory would lose its ability to investigate or prosecute offenders or to seize an international jurisdiction with the power to try offenders. This would create significant accountability gaps” (emphasis added).70 Crucially, the ability to confer jurisdiction on the Court is a matter of prescriptive jurisdiction.71

20.Stahn further observes that “[b]ilateral immunity agreements that award exclusive jurisdiction over specific categories of persons to another state do not extinguish the general capacity of the contracting state to allocate jurisdiction to another entity. If anything, such agreements demonstrate the inherent or pre-existing competence of the State to exercise such jurisdiction.”72 As such, the inability of the PNA to punish, prosecute, or otherwise enforce its laws against Israelis does not preclude the Court from investigating, charging,

68 Request, para 184; see also Ambos op cit: “Oslo II did not, indeed could not, take from Palestine the (prescriptive) jurisdiction over its territory but only limited the exercise of this jurisdiction”.

69 See, in particular, Request, fn. 581-582.

70 Carsten Stahn, ‘Response: The ICC: Pre-Existing Jurisdictional Treaty Regimes, and the Limits of the Neo Dat Quod Non Habet Doctrine – A Reply to Michael Newton’ (2016) 49(2) Vanderbilt Journal of Transnational Law 450.

71 Ambos op cit: “… pursuant to Oslo II, the PNA must not exercise jurisdiction over Israelis but it may delegate this jurisdiction to an international court. Otherwise, Oslo II would operate as a bar to the international prosecution of possible international crimes by Israeli soldiers in the West Bank, a result hardly compatible with the ICC’s mission and the underlying duty to prosecute international core crimes.”

72 Stahn op cit, 451, also 451-452: “If a state has conferred jurisdiction to the ICC, despite a previous bilateral treaty arrangement limiting domestic jurisdiction, the resolution of conflicting obligations becomes an issue of complementarity and cooperation. The ICC is not bound by the agreement of the State Party. It does therefore not have to apply the rule lex specialis derrogat lex generalis. It will instead have to assess whether there are any domestic investigations or not. In case of inaction, the ICC is generally competent to proceed with its own investigations and prosecution.”

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or prosecuting such individuals for international crimes committed within the occupied

Palestinian territory, including in Area C in the occupied West Bank.

  1. Alternatively, Al-Haq, a Palestinian human rights organisation, outlines the argument73 that grave breaches of international humanitarian law, such as the construction and maintenance of Israeli settlements, which have been recognised by the ICJ as amounting to violations of jus cogens norms giving rise to obligations erga omnes,74 create obligations on all States to take positive action to try or extradite those suspected of grave breaches of the Geneva Conventions.75 This obligation, it is argued, has been recognised as binding the PNA, without prejudice to the existence, or supposed non-existence, of a State of Palestine. As such, the purported inability of the PNA to fulfil this duty as a result of a strict interpretation of Oslo II, whether through the Court or otherwise, would amount to undermining recognised principles of international law; “[b]y this reckoning there is broad consensus that Palestine, at least when it comes to the application and enforcement of international

humanitarian law, is on a par with proper states.”76

  1. Regardless of which approach the Court finds most compelling, Kearney is doubtless

correct in stressing that similar restrictions imposed by the Oslo Accords, such as the capacity to engage in international relations,77 are not reflected in State practice, by either third States or Palestine itself, nor is it conducive to the experience of international organisations and human rights bodies.78 The UN Commission of Inquiry addressing the 2018 protests in the occupied Palestinian territory (Commission of Inquiry) affirmatively

73 Originating in Al-Haq, Position Paper on Issues Arising from the Palestinian Authority’s Submission of a Declaration to the Prosecutor of the International Criminal Court under Article 12(3) of the Rome Statute (14 December 2009).

74 Wall Opinion, 88, 156.

75 See Article 146(2), Fourth Geneva Convention.

76 See Kearney op cit, 34-35.

77 See Request, para 71.

78 Kearney op cit: “It is clear that international practice is to overlook the Oslo restrictions for the benefit of the Palestinian people”.

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found that the PNA has obligations, under both international human rights and humanitarian law,79 applicable to “the entire OPT” (emphasis added),80 without distinction as to the Areas delineated in the Oslo Accords. This is further corroborated by, inter alia, CEDAW81, CERD82, and the CRC.83 As such, the Oslo Accords should not be deemed to be a barrier to the full exertion of the Court’s jurisdiction over the occupied West Bank as a whole.

  1. Finally, it has been argued that the Court’s jurisdiction may not be extended to, or would be of questionable authority, with respect to illegal Israeli settlements in the occupied West Bank.84 It is respectfully submitted that this argument represents the perfect opportunity to illustrate why Article 21(3) should be applied in interpreting the Court’s jurisdiction in Palestine. The construction and maintenance of illegal Israeli settlements in the West Bank, as well as East Jerusalem, has been well established to be in violation of internationally recognised principles of human rights law,85 including jus cogens norms, which give rise to obligations erga omnes. Accordingly, interpreting the Court’s, and indirectly the Prosecutor’s, jurisdiction as limited due to the presence of the settlements would be fundamentally incompatible with the Chamber’s obligation to interpret the relevant law in light of principles of human rights.
  2. East Jerusalem

79 UN Human Rights Council, Report of the independent international commission of inquiry on the protests in the Occupied Palestinian Territory (25 February 2019) UN Doc A/HRC/40/74, para 708 (henceforth “Commission of Inquiry Report”).

80 Ibid., para 759.
81 CEDAW, Concluding Observations: State of Palestine (25 July 2018) UN Doc CEDAW/C/PSE/CO/1, PARA

82 CERD, Concluding Observations: State of Palestine (20 September 2019) UN Doc CERD/C/PSE/CO/1-2, para 3.

83 CRC, Concluding Observations: State of Palestine (13 February 2020) UN Doc CRC/C/PSE/CO/1, para 4.

84 For this argument, see Stephen Kay and Joshua Kern, ‘The Statehood of Palestine and Its Effect on the Exercise of ICC Jurisdiction’ (5 July 2019) Opinio Juris, available at: https://opiniojuris.org/2019/07/05/the- statehood-of-palestine-and-its-effect-on-the-exercise-of-icc-jurisdiction%EF%BB%BF/.

85 See throughout, Human Rights Council op cit (7 February 2013); see also Committee for Economic, Social and Cultural Rights, Concluding Observations: Israel (12 November 2019) UN Doc E/C.12/ISR/CO/4, para 11, 16, 46.

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  1. East Jerusalem, or those portions of the city which lie beyond the Green Line, has been repeatedly affirmed and reaffirmed to be a part of the occupied Palestinian territory in countless UN General Assembly,86 Security Council,87 and Human Rights Council88 resolutions, as well as in the Wall Opinion issued by the ICJ.89 Moreover, actions which “purport to have altered the character, status or demographic composition of the Holy City of Jerusalem” have been deemed by the international community to “have no legal effect, are null and void and must be rescinded in compliance with relevant resolutions of the Security Council”.90 While many proposals relating to the status of Jerusalem have been suggested,91 including the so-called corpus separatum proposed in the UN partition plan92, the territorial claim of Palestine to Jerusalem has never been refuted; tellingly, the importance of determining this issue with respect to the right of the Palestinian people to self-determination, including permanent sovereignty, was reiterated on the occasion of Israel’s induction into the UN.93
  2. While it is respectfully submitted that this should be sufficient to satisfy the Court as to its jurisdiction over East Jerusalem, given the importance of the city, both spiritually and as an

86 See, inter alia, UN General Assembly Resolutions: 36/120(D) (10 December 1981), para 5; 36/120(F) (10 December 1981), para 2; 72/15 (7 December 2017) UN Doc A/RES/72/15, preamble; 74/11 (9 December 2019) UN Doc A/RES/74/11, para 8, 12.

87 UN Security Council Resolutions: 465 (1 March 1980) UN Doc S/RES/465, para 5; 476 (30 June 1980) UN Doc S/RES/476, para 1; 478 (20 August 1980) UN Doc S/RES/478, para 3.

88 Most recently in UN Human Rights Council Resolution 40/23 (22 March 2019) UN Doc A/RES/40/23, para 15.

89 See, Wall Opinion para 119: “… the wall’s sinuous route has been traced in such a way as to include within that area the great majority of the Israeli settlements in the occupied Palestinian Territory (including East Jerusalem)”, also para 120: “The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.”

90 UN General Assembly Resolution ES-10/19 (22 December 2017) UN Doc A/RES/ES-10/19, para 1, see also UN Security Council Resolutions: 252 (21 May 1968) UN Doc S/RES/252, para 2; 267 (3 July 1969) UN Doc S/RES/267, para 4; 298 (25 September 1971) UN Doc S/RES/1971, para 3.

91 See, for example, John V Whitbeck, ‘The Road to Peace Starts in Jerusalem: The “Condominium” Solution’ (1996) 45(3) Catholic University Law Review 781.

92 See Part III, UN General Assembly Resolution 181(II) (29 November 1947) UN Doc A/RES/181(II).
93 UN General Assembly Resolution 273(III) (11 May 1949) UN Doc A/RES/273(III), preamble, “[r]ecalling its

resolutions of 29 November 1947 and 11 December 1948”.

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integral component of the territory of Palestine, its status as occupied territory94, as well as the gravity of the situation on the ground, this section will provide further analysis as to the sovereignty and right to self-determination of the Palestinian people in the city, and its continuity ever since the British Mandate was established.

  1. During the British Mandate period, which commenced after the fall of the Ottoman Empire as a result of the peace diplomacy at Versailles, Palestine was categorised, under British rule, as a “Class A” mandate, along with others such as Iraq, Syria, and Lebanon. The ICJ declared that “international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them” as a “sacred trust” that pre-existed the creation of the Mandate system, and “continued to apply to League of Nations mandated territories”.95 Thus, the Palestinian people were recognised as having an inherent right to self-determination, even while under Mandate rule.96 The continuity of this right, which encompassed Jerusalem, the capital of Palestine during the Mandate, remained unbroken, including through the 1948 War. The Jewish Agency declared the establishment of the State of Israel following the seizure of the western part of the city of Jerusalem, and after a protracted campaign of ethnic cleansing directed towards the indigenous Palestinian people,97 the newly-established State of Israel immediately declared Jerusalem to be “Israel-occupied territory.”98 Nonetheless, a few

94 Wall Opinion, para 78.
95 Namibia Opinion, para 52; see also ICJ, International Status of South West Africa (Advisory Opinion) (11 July

1950).

96 On this, see Al-Haq, ‘Al-Haq Briefing Paper – 70 Years On: Palestinians Retain Sovereignty Over East and West Jerusalem’ (2018), available at: http://www.alhaq.org/cached_uploads/download/alhaq_files/images/stories/PDF/Jerusalem_20%20Oct_final.pdf ; see also John Quigley, ‘Sovereignty in Jerusalem’ (1996) 45(3) Catholic University Law Review 778: Palestinians “had a right to sovereignty based on its connection to the territory, and on the principle of self- determination”.

97 See Henry Cattan, Jerusalem (St Martins’ Press, 1981) 48; also, generally, Ilan Pappe, ‘The 1948 Ethnic Cleansing of Palestine’ (2006) 36(1) Journal of Palestine Studies 6; Ilan Pappe, The Ethnic Cleansing of Palestine (One World, 2006).

98 Israel Ministry of Foreign Affairs, 2 Jerusalem Declared Israel-Occupied City- Government Proclamation, available at: https://mfa.gov.il/mfa/foreignpolicy/mfadocuments/yearbook1/pages/2%20jerusalem%20declared%20israel- occupied%20city-%20governm.aspx.

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months later, in February 1949, Israel abolished military rule and instituted its own civil

administration in the city, amounting to de facto annexation.99
27. East Jerusalem was among the Palestinian territories occupied by Israel during the 1967

War. As noted by the UN Secretary-General in 1967, “[t]he Israel authorities … stated … that the municipality of West Jerusalem began operations in East Jerusalem the day after the fighting ceased. In the beginning it acted as the agent of the Military Government, but from 29 June municipal processes started to function according to Israel law.”100 The extension of annexation from the western to the eastern part of the city, as well as neighbouring Palestinian villages101, made it clear that “Israel was taking every step to place under its sovereignty those parts of the city which were not controlled by Israel before 1967.”102 The annexationist extension of Israeli authority over East Jerusalem and the surrounding area through the shifting and redrawing of municipal boundaries adheres to the so-called “Jerusalem 2020 Master Plan”, designed to achieve “spatial segregation”103 within the city, instituted with the ultimate aim of the strategic fragmentation of the Palestinian people104, and the demographic manipulation of the city, restricting the Palestinian presence to 30 percent of the population.105

99 Israel Ministry of Foreign Affairs, 4 Jerusalem-s Military Government Abolished- Government Proclamation, available at: http://www.israel.org/MFA/ForeignPolicy/MFADocuments/Yearbook1/Pages/4%20Jerusalem- s%20Military%20Government%20Abolished-%20Gover.aspx.

100 UN Security Council, Report of the Secretary-General under General Assembly Resolution 2254 (ES-V) Relating to Jerusalem (12 September 1967) UN Doc S/8146, para 28.

101 See B’Tselem, East Jerusalem (11 November 2017, last updated 27 January 2019), available at: https://www.btselem.org/jerusalem.

102 Ibid., para 33.

103 Jerusalem Municipality, Local Outline Plan Jerusalem 2000: Report No. 4 (August 2004), section 7: “… spatial segregation of the various populations groups in the city is a real advantage … It is appropriate, therefore, to direct a planning policy that encourages the continuation of spatial segregation with a substantial amount of tolerance and consideration”, available at: http://www.alhaq.org/cached_uploads/download/alhaq_files/en/wp- content/uploads/2018/03/LocalOutlinePlanJerusalem2000.pdf.

104 See UN Human Rights Council, Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk (13 January 2014) UN Doc A/HRC/25/67, para 23.

105 Jerusalem Municipality, op cit, section 7: “Demographic Balance ‘According to Governmental Decisions’ – This goal, as presented by the municipality and adopted in governmental discussions regarding the matter, seeks to maintain a ratio of 70% Jews and 30% Arabs.”

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  1. The annexation of East Jerusalem, made effective in 1967, was formalised in Israeli law in 1980 with the passing of the “Basic Law: Jerusalem, Capital of Israel,” of constitutional status, envisaging “Jerusalem, complete and united [as] the capital of Israel.”106 This formalisation was condemned as “null and void” by the UN Security Council.107 The culmination of Israel’s annexationist policies to alter the demographic character of the city occurred with the erection of the Annexation Wall, which cemented Israel’s acquisition,108 and illegal annexation,109 of Jerusalem by military force and the coercive displacement of the indigenous Palestinian population, in direct contravention of international law110. As the acquisition of territory by force, as extended by occupation or annexation, cannot vest sovereignty in a belligerent or occupier, the actions taken by Israel in 1948, 1967, and 1980 are ineffectual in vesting Israel with sovereignty over Jerusalem, in particular occupied East Jerusalem.
  2. It is pertinent to give consideration to the Palestinian residents of East Jerusalem, who are not treated in accordance with human dignity, but rather as a demographic challenge by the Israeli authorities. While the State of Palestine is unable to confer citizenship upon residents, Israel refuses to extend similar rights upon Palestinian East Jerusalemites, and instead subjects them to a precarious “permanent residency” status, which may be revoked at any time.111 Moreover, such status may be, and often is, revoked punitively, as part of

106 Knesset, Basic Law: Jerusalem, Capital of Israel, translation available at: https://www.knesset.gov.il/laws/special/eng/basic10_eng.htm.

107 UN Security Council Resolution 478 (20 August 1980) UN Doc S/RES/478.

108 Article 2(4), Charter of the United Nations (adopted 24 October 1945) 1 UNTS XVI.; see also Wall Opinion, para 1; UN Security Council Resolution 2334 (23 December 2014) UN Doc S/RES/2334, preamble.

109 Article 47, Fourth Geneva Convention.

110 See Wall Opinion, para 122: “…the route chosen for the wall gives expression in loco to the illegal measures taken by Israel with regard to Jerusalem and the settlements, as deplored by the Security Council … There is also a risk of further alterations to the demographic composition of the Occupied Palestinian Territory resulting from the construction of the wall inasmuch as it is contributing … to the departure of Palestinian populations from certain areas.”

111 This was introduced by Knesset, Entry into Israel Law (5710/1950), available at: https://www.adalah.org/uploads/oldfiles/Public/files/Discriminatory-Laws-Database/English/40-Entry-into- Israel-Law-1952.pdf.

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unlawful campaigns of collective punishment, under the vague pretext of a “breach of

allegiance” to the State of Israel.112

  1. Israel’s framework of control over East Jerusalem does not, in any way, provide for the

Palestinian pursuit of political, social, and cultural development, nor the vindication of their inalienable rights under international law, and thus is incompatible with their inherent right of self-determination.113 This manifest and prolonged breach of the collective right of Palestinian East Jerusalemites must be used as a basis, in line with Article 21(3) of the Rome Statute, in interpreting the extent of ICC jurisdiction; it is the Israeli authorities who exercise control over the annexed city and are responsible for the ongoing campaign of rights violations and alleged international crimes. Any move to exclude East Jerusalem from Palestinian jurisdiction would improperly contribute to unending Israeli impunity.

  1. Thus, although the State of Palestine is prohibited from physically exercising its authority over the city, this does not compromise its de jure sovereignty or its jurisdiction over the territory.
  1. The Gaza Strip
  2. As noted above, the Gaza Strip has been internationally recognised as an integral part of occupied Palestinian territory, and therefore is part of the overall Palestinian territorial unit.114 However, the PNA, and thus the State of Palestine, does not exercise effective, de facto control over Gaza. That, however, has not extinguished its de jure jurisdiction and

112 See Al-Haq, Punitive Residency Revocation: the Most Recent Tool of Forcible Transfer (17 March 2018), available at: http://www.alhaq.org/advocacy/6257.html.

113 Reference re: Secession of Quebec [1998] 2 R.C.S, at para 126.

114 See The Israeli-Palestinian Interim Agreement (Oslo II) (28 September 1995), available at: http://www.acpr.org.il/publications/books/44-Zero-isr-pal-interim-agreement.pdf, Article XI(1): “The two sides view the West Bank and the Gaza Strip as a single territorial unit”, and Article XVII(1): “In accordance with the DOP, the jurisdiction will cover West Bank and Gaza Strip territory as a single territorial unit …”; see also UN Security Council Resolution 1860 (8 January 2009) UN Doc S/RES/1860, preamble: “Stressing that the Gaza Strip constitutes an integral part of the territory occupied in 1967 and will be a part of the Palestinian state”.

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claim, nor has it suspended obligations under international law to uphold the human rights

of Palestinians in Gaza.
33. The lack of control directly enjoyed by the PNA in Gaza has been well documented by the

Prosecutor,115 and while Israel argues that Gaza is no longer occupied, or has attained a sui generis status,116 the prevailing expert and UN view is that the territory remains occupied by Israel, despite the so-called removal of its illegal settlements from the Strip in 2005.117 As noted by Professor John Dugard in 2007, during his tenure as the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, “[s]tatements by the Government of Israel that the withdrawal ended the occupation of Gaza are grossly inaccurate … In effect, following Israel’s withdrawal, Gaza became a sealed off, imprisoned and occupied territory.”118 Thus, the ability of the PNA to control Gaza is hampered in part by the ongoing closure and measures of collective punishment imposed by Israel with the ultimate goal of rendering Gaza uninhabitable119; as noted by Darcy and Reynolds, “[w]hile events in Gaza have departed from traditional conceptions of warfare and occupation … sufficient clarity is retained when it comes to the effective control exercised by Israel over the Gaza Strip in order to categorize the territory as occupied.”120 As such, it is incorrect to view Gaza as unoccupied territory; the so-called ‘disengagement’ by Israeli forces in 2005 facilitated a new means of Israel’s domination and control,

115 See Request, para 80.
116 See, for example, Elizabeth Samson, ‘Is Gaza Occupied?: Redefining the Status of Gaza under International

Law’ (2010) 25(5) American University Law Review 915.

117 George E Bisharat et al, ‘Israel’s Invasion of Gaza in International Law’ (2009) 38(1) Denver Journal of International Law & Policy 47-51; Shane Darcy and John Reynolds, ‘An Enduring Occupation: The Status of the Gaza Strip from the Perspective of International Humanitarian Law’ (2010) 15(2) Journal of Conflict & Security Law 223-242; Yoram Dinstein, The International Law of Belligerent Occupation (2nd edn, Cambridge University Press, 2009) 851-862.

118 UN Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967 (29 January 2007) UN Doc A/HRC/4/17, para 6.

119 See UN, Gaza “Unliveable”, UN Special Rapporteur for the Situation of Human Rights in the OPT Tells Third Committee (24 October 2018), available at: https://www.un.org/unispal/document/gaza-unliveable-un- special-rapporteur-for-the-situation-of-human-rights-in-the-opt-tells-third-committee-press-release-excerpts/.

120 Darcy and Reynolds, op cit, 243.
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effectively amounting to a “reployment” of military capabilities exercising control of land

borders, airspace, and naval frontiers.121
34. It must be stressed that the partial control, hampered by continued Israeli occupation,

exercised by Hamas within Gaza does not produce a sui generis, quasi-state status; Hamas itself views Gaza as integral to Palestine,122 and rejects any suggestion that its administrative role in Gaza compromises Palestinian territorial integrity. Moreover, regardless of de facto control by Hamas, the PLO has been treated as the “sole legitimate representatives” of the Palestinian people by the League of Arab States,123 Israel,124 the UN General Assembly,125 and a United States federal appeals court.126 This may be observed in practice through the accepted claim by the PNA, controlled by the PLO, over Gaza’s territorial waters, in line with the Convention on the Law of the Sea127, asserting sovereignty over the “territorial sea, its airspace, and its bed and subsoil”.128 Thus, the link between the sovereign claim by the State of Palestine in the West Bank, including East Jerusalem, is fundamentally linked and congruent to that of the Gaza Strip.

121 Bisharat, op cit, 49.
122 See Hamas, Hamas warns against holding Palestinian elections separately (23 October 2019), available at:

https://hamas.ps/en/post/2382/hamas-warns-against-holding-palestinian-elections-separately.

123 League of Arab States, PLO sole legitimate representative of the Palestinian people – LAS Rabat Summit (28 October 1974), available on UN website at: https://www.un.org/unispal/document/auto-insert-194621/; see also Issa Al-Shuaibi, ‘The Development of Palestinian Entity-Consciousness: Part III’ (1980) 9(3) Journal of Palestine Studies 100.

124 Israel Ministry of Foreign Affairs, Israel-PLO Recognition: Exchange of Letters between PM Rabin and Chairman Arafat, available at: https://mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/israel- plo%20recognition%20-%20exchange%20of%20letters%20betwe.aspx.

125 The Assembly altered the designation of “Palestine Liberation Organization” given to the PLO to simply “Palestine”, thereby essentially conflating the two, see UN General Assembly Resolution 43/177 (15 December 1988) UN Doc A/RES.43/177, para 3; note, however, that this does not indicate that the PLO has become synonymous with Palestine as such, but rather is its internationally recognised conduit, see Azarov and Meloni op cit.

126 Universal Cable Productions LLC v Atlantic Speciality Insurance Company (12 July 2019) 9th Circuit, at 29: “Here, the Palestinian Authority is the de jure government”, available at: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/12/17-56672.pdf.

127 Convention on the Law of the Sea (adopted 10 December 1982, entry into force 16 November 1994).

128 State of Palestine Ministry of Foreign Affairs and Expatriates, Declaration of the State of Palestine regarding its maritime boundaries in accordance with the United Nations Convention on Law of the Sea, available at: https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/PSE_Deposit_09-2019.pdf.

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  1. The PNA’s de jure jurisdictional claim over the Gaza Strip is further strengthened by the direct applicability of international human rights treaties acceded to by the State of Palestine therein. This has been affirmed by the Commission of Inquiry,129 and was seemingly taken as self-evident by CERD in its December 2019 jurisdictional decision.130 This has been further confirmed by other bodies such as CEDAW131 and CRC132. Indeed, the Commission of Inquiry “consider[ed] Hamas to be obligated to respect, protect and fulfil human rights” based on the accessions to various treaties by the State of Palestine,133 indicating that Hamas, as the de facto authorities in Gaza, are bound by obligations of the State of Palestine. Thus, there does not appear to be any general bar to the imposition of international statutory obligations upon either the Gaza Strip, or Hamas; instead, the State of Palestine is demonstrably capable of imposing such obligations.
  2. Moreover, within the specific framework of the Rome Statute, there does not appear to be any prohibition on the extension of the Court’s jurisdiction to the Gaza Strip, despite de facto control by Hamas. In the context of the occupied Georgian territory, referred to as South Ossetia, the PTC ruled that regardless of the lack of effective control by Georgia over that territory, “South Ossetia is to be considered as part of Georgia, as it is generally not considered an independent State.”134 In light of this decision, in a context wherein a separate State, although its legitimacy is questionable, had been declared, it would be inconsistent for the Court to deny the applicability of its jurisdictional reach due to the lack of de facto control over Gaza by the State of Palestine. Gaza is not the subject of an adverse separatist

129 See Commission of Inquiry Report, para 759, 768. 130 See throughout, CERD Decision.
131 CEDAW, op cit, para 9.
132 CRC, op cit, para 4.

133 Commission of Inquiry Report, para 759.

134 ICC, Situation in Georgia: Decision on the Prosecutor’s request for authorization of an investigation (27 January 2016) ICC-01/15, para 6.

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claim, but rather functions and has been recognised as an integral component of the

occupied Palestinian territory.
37. Similarly, as the Court has previously made implicit designations on the competing claims

to legitimacy of opposing authorities,135 it is respectfully submitted that the Court should be satisfied with the State of Palestine’s internationally recognised de jure status as the competent authority over the entirety of the occupied Palestinian territory, and should not be deterred by its lack of de facto control. The Court’s sole consideration vis-à-vis the competency of Palestinian authorities to submit jurisdiction to the Court begins and ends with positions “clearly designated by the [de jure] State.”136 The implications of an alternative ruling would be a consolidation of the fragmentation of the Palestinian people; should the Gaza Strip be excluded from the remit of the Prosecutor’s investigation, the Court would further entrench the arbitrary fragmentation, imposed by Israel’s occupation machinery137, facilitating the creation and maintenance of a regime of impunity shielding accountability for the commission of international crimes.

  1. Conclusion
  2. Should the Court deem it necessary to make a jurisdictional ruling, under the auspices of Article 19(3), at this stage, it is respectfully submitted that it should rule that the entirety of the occupied Palestinian territory constitutes the legitimate territory of the State of Palestine, and is subject to the Court’s jurisdiction. While I am mindful of the importance and sensitivity of the issues presently before the Court to the objections of a sovereign State, however in this instance it has become abundantly clear that the broader legal considerations of extending legal accountability for international crimes should be given priority.

135 See ICC, Situation in Libya in the Case of the Prosecutor v Said Al-Islam Gaddafi: Decision on the Prosecutor’s “Request for an order directing the Registrar to transmit the request for arrest and surrender to Mr al-‘Ajami AL-ATIRI, Commander of the Abu0Bakr Al Siddiq Battalion in Zintan, Libya” (21 November 2016) ICC-01/11-1/11, para 15.

136 Ibid., para 16.
137 See Richard Falk, ‘Israel’s Politics of Fragmentation’ (10 October 2010) Global Justice in the 21st Century,

available at: https://richardfalk.wordpress.com/2013/10/10/israels-politics-of-fragmentation/.
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  1. Once more, it is necessary to stress that the presence of disputed borders, or portions of the occupied Palestinian territory wherein the State of Palestine does not exercise effective control, does not preclude Palestine, nor the Court, from exercising full jurisdiction therein. Moreover, as outlined above, there is no valid legal or factual barrier that precludes such a finding of jurisdiction; indeed, it is submitted that the object and purpose of the Rome Statute, the underlying goals of the Court, internationally recognised human rights principles and norms, and the promotion of global justice necessitate that an investigation be immediately opened, encompassing the entirety of the occupied Palestinian territory.
  2. The Court is not bound, nor does it enjoy the authority, to make a substantive ruling as to the statehood of Palestine; such a ruling, it is submitted, would be ultra vires and outside of the Court’s role with respect to international criminal justice. Instead, the Court should recognise what is widely accepted since Palestine acceded to the Rome Statute, and was recognised as a non-Member State by the UN General Assembly: Palestine, if nothing else, is a full and valid State Party of the Rome Statute, and as such is entitled, and fully bound by the instrument. In this regard, the substantive statehood of Palestine, which has been affirmed and reaffirmed, as outlined above, is ancillary.
  3. If the Court deems it necessary to provide a ruling on jurisdiction at this stage, therefore, it is submitted that this is the decision the Court must reach. As rightly noted by Professor John Quigley in his amicus curiae submission, dated 3 March 2020, “[t]he issue of Palestine statehood is a legal matter unrelated to political considerations. To say that Palestine is a state is to take no position on the equities of the Israel-Palestine situation. It implies no position on how the two parties should resolve their differences.”138 The issue before the Court is a legal one, and as such must be considered in light of established legal principles, which clearly indicate that the State of Palestine enjoys the status of a State within the

138 John Quigley, Situation in the State of Palestine: Submissions Pursuant to Rule 103 (John Quigley) (3 March 2020) ICC-01/18, para 59.

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context of the Rome Statute, and has the authority and competence to provide the Court with jurisdiction over the entirety of its territory, defined as the West Bank, including East Jerusalem, and the Gaza Strip, in line with the provisions of Article 12(3).

Professor Richard Falk

Dated this 16th day of March, 2020 At Istanbul, Turkey

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A 21st Century Worldview: Interviewing Ahmet Davutoğlu

28 Mar

A 21st Century Worldview: Interviewing Ahmet Davutoğlu

[Prefatory Note: Below is an interview that I conducted with the former Turkish Prime Minister and Foreign Minister, Ahmet Davutoğlu, published in Middle East Monitor on March 23-24, 2020. His responses to questions 18-20 concern the impacts of the COVID-19 crisis on the world. The interview is long, yet a worthwhile overview how the most important intellectual political figure in Turkey views global and national reality given the shape of recent developments. It was framed to touch upon the main themes of his pathbreaking contribution to the scholarly literature, Systemic Earthquake and the Struggle for World Order, published in 2020 by Cambridge University Press, available via Amazon. (disclosure: I wrote the foreword)  

Davutoğlu has recently formed the Future Party to work in opposition to the AKP led government headed by President Erdoğan, with an intention to mount an electoral challenge in coming years. The main programmatic feature of the Future Party is its advocacy of pluralist & inclusive democracy as distinct from the contentions of majoritarian democracy.]

  1. You were a prominent figure in academic circles before you entered political life. What prompted you to become a politician?

Whatever field we work in, the unavoidable fact is that we live in a certain space and flow of history. Our existence is defined and limited by the dimensions of time and space. If you are an academic in the social sciences, especially international relations, the influence of these space and time dimensions are felt even more deeply. In a sense, they form an existential framework for your own test tube.[i] Theoretical academic studies beyond the test tube draw one into the reality that exists within it; the conclusions one reaches within this reality start influencing one’s academic work’s theoretical perspective.

This intellectual dialectic between academic theory and socio-political reality also applies to me. My journey between these two fields has been a dynamic process rather than a single, sudden decision. I presented my doctoral dissertation in comparative political theory, later published as Alternative Paradigms[ii] in June 1990, two months before Saddam Hussein’s invasion of Kuwait in the year the Cold War ended. History’s rate of flow has accelerated here in the Middle East. In a sense, the time/space dimension of our ontological existence has been reshaped.

 

It was in this context that I wrote articles criticising the End of History hypothesis that claimed that far from gaining pace, the flow of history, when it came to ideas, had actually slowed to a virtual halt; a theory that gained popularity at that time and found adherents in Turkey as well. In these articles I stressed that we should not be fooled by overly optimistic visions as the Cold War came to an end; on the contrary, we were in a far more intense philosophical-political crisis in which decision-makers in Turkey, a country that lay at the centre of all these shifts, needed to be prepared for all kinds of surprises and alternative scenarios. People took a closer look at my views in the wake of developments in Bosnia, which gave Turkey and the world a psycho-political shock. I rejected offers to enter Turkish politics in the 1995, 1999 and 2002 general elections – offers that came during the establishment of new political parties as well. I said I would remain in academic life with a view to pursuing academic studies, seeking to make sense of all these processes and would only be able to offer theoretical advice.

 

However, it sometimes happens that a person’s own work has a transformative impact on that person’s own life as well. Within a short time of its publication in June 2001, my book Strategic Depth, which analysed regional and global post-Cold War developments and specified Turkey’s strategic position in this new historical context, made a widespread impact in universities and military academies. This led me to accept an invitation to act as chief advisor to the then-prime minister, Abdullah Gül, and later Recep Tayyip Erdoğan. This invitation reflected the change of government in 2002. At the time, Turkey faced three huge issues that would determine its strategic future: the Iraq War, the EU accession process and the Cyprus negotiations.

 

For seven and a half years I served as chief advisor. This period involved me in a large number of policy processes responsive to these three overall challenges, a few noteworthy examples of which are mentioned in the book Systemic Earthquake. For Turkey and for me, it represented a transition from theory to practice, as well as from scholarship and teaching to politics. Because of my determination to get back to academic life, I respectfully turned down Prime Minister Erdoğan’s suggestion that I be included as a parliamentary candidate with a possible ministerial post after the 2007 elections. The reason I gave for declining was that I intended to return to academic life soon after the elections.

The main factor behind my decision to finally enter into politics was the closure case brought against the AK Party (the Justice and Development Party). The case was initiated about eight months after the party’s overwhelming victory with 46.6 per cent of the votes in the July 2007 general elections – a result that was impressive in the Turkish multiparty context. I regarded this case as a declaration of war against democracy in my country, which amounted to a virtual coup attempt. At that point, I went to see Prime Minister Erdoğan and told him that I would not hesitate to take part in politics at a time when our democracy was under threat, and that I was ready to assume any duty to protect democracy. In response, I was appointed as foreign minister in May 2009 and prime minister in August 2014.

In a nutshell, two principal motives prompted my longer-term involvement in political life: the moral untenability of staying aloof from the practical side of the history, of which I was trying to make theoretical sense, and a sense of democratic responsibility to my country and people as they found themselves at the centre of a turbulent historical process that was gaining ever-increasing momentum, and was challenging the leadership of the country to minimise risks and take advantage of opportunities.

  1. This makes me wonder: even with such strong motivational factors, was it difficult for you to make the transition from the academy to the government, having resisted the call for so long? Abandoning teaching and scholarship? Making political compromises in the course of shaping policies and reaching decisions?

Being an academic is not just a profession, but a way of life. You can adapt to changes in your life, but you cannot totally abandon an intellectual calling. Taking on political decision-making roles may limit academia’s field of operation, but cannot erase its nature as something integrated into one’s personality. This limitation is related to the fact that these two areas call for different psychologies and methods, with respect to ethical and professional qualities. The academic life requires pure freedom. The moment one starts self-censoring, one’s freedom of thought evaporates. Yet the diplomatic/political field consists mostly of process management, a process that requires tact, discretion and a certain amount of secrecy. If one discloses one’s views and assessments to the public with an academic’s degree of freedom, one will eventually lose the ability to manage these processes, as well as the confidence of colleagues in government.

This difference in method led me to stop publishing and media activities, including works that were ready for publication, when I assumed duties as chief advisor and ambassador, and started getting involved in diplomatic processes. After continuing my university lectures for about two years, I stopped my teaching activities as well. It seemed to me that my frequent absences abroad in connection with Turkey’s European Union (EU) accession negotiations were imposing unfair burdens on my students.

None of these adjustments meant that I entirely abandoned my identity as an academic, which was very much part and parcel of my personality. There were times when I turned diplomatic/political meetings and even mass campaign rallies into lectures, without being aware of doing so. There were also times when I took refuge from the pressures of diplomatic/political activities by writing and reading. In this context I also took great pleasure in intellectual discourse with counterparts who shared an intellectual/academic background that went beyond the normal diplomatic process. I would also make a point of visiting bookstores in the cities where I found myself, taking full advantage of gaps that allowed me some free time during even the most critical diplomatic talks. Knowing of my proclivities, ambassadorial colleagues involved in our overseas trips would locate the best bookstores in the cities we were visiting, and then make arrangements sensitive to the fact that I might pop out from meetings at any moment to satisfy this book-craving impulse of mine.

All this gave me a deeper understanding of the reason why Ottoman rulers became proficient in some area of handicrafts or fine arts: Süleyman the Magnificent, like his father, in the art of jewellery making, Abdul Hamid in carpentry, Selim III in music, and almost all of them in writing poetry. After intense all-day diplomatic/political activities, it is almost impossible to fall asleep as the issues being discussed agitated my mind to such a degree that sleep became impossible, or it even happened that my dreams would often continue the discussions of the previous day. In such circumstances, the best way to relax is to take refuge in a favourite habit or hobby that will divert you from an intense daily rhythm. So, I would often make a late-night visit to my library before going to bed, or spread books out over my desk after getting the required briefings on long-haul flights and after everyone had gone to sleep, resting my mind and soul by reading and writing. I wrote Civilizations and Cities, published a month after I left the prime ministry, in these intervals during my many long flights.

But no matter how much effort I devoted to making up for what was lacking, I still missed teaching and scholarship. In time, I saw more closely that there are no more loyal friends than books and no more valuable investment in the future than students. When I became foreign minister, diplomats who had worked with me in my capacity as an academic and chief advisor carried on calling me “Professor-Hodja” instead of “Minister” out of habit, which acted as pleasant reminders of the life I had partially left behind. When they apologised for their apparent faux pas, I told them that all posts and positions are transient, but teaching and academic work endures. And today, after I have left my government experiences behind, I would like to reiterate the fact that for those who love it and do it justice, academic work, which is a quest for truth, endures and is invaluable.

 

Politics is ultimately a process of rational negotiation that, by its nature, requires certain compromises. Nevertheless, it remains vital that these political imperatives should not contradict your fundamental beliefs and/or encroach upon your personal integrity. In a sense, politics is the art of being able to adapt ideals to reality, values to interests and principles to solutions. As a scholar who attaches importance to personal integrity, I have faced some severe tests in this regard during my public life. When I found that this process of adaptation was in general no longer possible, I chose to leave the prime ministry, rather than compromise my personal integrity. In light of this personal experience, I advocate more strongly than ever an understanding and a practice of politics that accords priority to personal integrity. I have never swayed from this approach to politics or the lure of political life, and never shall.

  1. I understand that returning to a scholarly life may not have been such a wrench. Nonetheless, do you miss the experience of exercising political influence? You have recently established a new party, Future Party. How do you now envision your future in Turkish politics?

The first thing to say is that my decision to leave the prime ministry did not follow an election defeat or the end of a term limit. On the contrary, it was taken about six months after winning the most overwhelming election victory (49.5 per cent) in the history of Turkish democracy. My decision reflected my principal focus – to prevent differences of view over principles within the party, and the administration of the state to rupture political stability in the country. I also wanted to avoid conflicts of authority between offices of the state over the proper shape of the constitutional order, from turning into a crisis of state. You can imagine how tormented I was in the process of making this decision.

There are two main reasons, to do with my perspective on political and academic life, why the onset of such a sudden and disheartening process did not have a traumatic impact on me. The first, is that I have never seen politics as a career field; on the contrary, I see it as a field of accumulated experience and mission unfolding on the basis of the authority granted by the people. In other words, I have always seen government service and leadership not as permanent property, but as something temporarily entrusted to politicians in the name of public order, to be terminated in the event that the public interest so requires.

The observations I have made during my political life have truly shown me that for those who aim to gain status, money and prestige after becoming a politician, politics begins to take on the characteristics of an ontological field that must on no account be abandoned. Autocratic tendencies develop on just such a psycho-cultural connection between ontology and politics. Seeing the beginning and end of politics as the ultimate career brings about the permanence and sovereignty not of values, but of a status. In a sense, this is to see the concept of glory, which was an inherent value in Roman political culture, as a human condition that has been cleansed of this value.

 

Secondly, I already had a field of mental and intellectual activity that I loved and that made politics meaningful to me. This is why I have had no adjustment problems, in spite of having made an unplanned and unforeseen return to academic life in the wake of a distressing process. The day I announced my resignation I went back to my natural habitat – my library. I focused on half-completed projects and published a book within a month. I published six more books within two and a half years of my resignation, and participated in several national and international conferences.

There was no contradiction in carrying on my publication and conference activities while my political activities continued, even after my resignation. I took care to do my best in both areas, which required two different psychologies. As I stated at a press conference, announcing my decision not to participate in the 24 June parliamentary elections had two distinct and complementary meanings for me – although I was now focusing on my academic work, I had not left politics.

I continued to follow developments in the political domain closely with regular daily briefings. Just as in academic life, certain habits gained in political life persist. You feel responsibility whenever you see negative developments in your country. I, as a former prime minister and former chairman of the party, expressed my concerns and opinions to relevant authorities on different occasions behind closed doors – whenever I had deep concerns regarding the rising populism and polarisation in our society, limitations imposed on democratic rights, stagflation in the economy, spread of corruption and extensive mistrust to judicial system. When these sincere observations and suggestions were not taken into consideration, I prepared and issued a manifesto after the local elections on 31 March 2019, on the need for extensive reforms in the party and state administration. The party administration decided to expel me and my five other colleagues from the party, rather than to understand our concerns and suggestions. There was no other choice for us, but to establish a new party. The main philosophy and objective of the Future Party is to implement inclusive democracy as set forth as my core political vision in the Systemic Earthquake and the Struggle for the World Order: Exclusive Populism versus Inclusive Democracy. The founders’ board of the party composed of 152 leading personalities, represents all ethnic, sectarian and religious segments of the society. For instance, for the first time ever in Turkish politics, representatives of religious minorities (Armenian, Greek and Assyrian citizens) became members of the founders’ board of a party.

 

My most important realisation in all these endeavours, is that I have felt no change in my sense of duty to my country and people. I feel this not only as an academician and politician, but as a citizen. I have consistently regarded this obligatory feeling not as a question of office or position, but as one of principle and morality. What is important for me is to try my hardest to fulfil the needs of each moment.

Moreover, one cannot split a person’s identity according to the activity in which they are currently most involved. The principles, feelings and objectives that have guided me as an academician or a politician are the same. In personal transitions of this kind, those who look at life on the basis of a “divided self” psychology may encounter adjustment problems. In contrast, there is no question of such psychological tension for those who see their areas of work as reflections of the same “self” situated in a different time-space dimension.

  1. In writing Systemic Earthquake, did you benefit from your own earlier scholarship, particularly Strategic Depth, as well as from your recent political experience?

 

Absolutely. Systemic Earthquake is posited on a unique synthesis of these two experiential legacies – one mainly theoretical, the other practical. With respect to historical background and global culture, the perspective of comparative civilisational analysis that I used in Alternative Paradigms, is reflected in this work as well. However, the initial theoretical work on which Systemic Earthquake is directly based, is a paper entitled Civilisational Transformation and Political Consequences that I presented at an International Studies Association congress in March 1991, in the immediate aftermath of the Gulf War, and published in 1994 as a book. In this paper, I argued that contrary to the claims of the End of History hypothesis, the ongoing process going forward was not the end of history, but a comprehensive civilisational transformation in which fresh elements introduced by globalisation were shaking the basis of conventional modern philosophy, and the revival of traditional civilisational basins that would change the Eurocentric concept of world order. Working from these premises, I foresaw that first of all tensions would arise from the reawakening of historical factors as a natural consequence of this transformational process. From this perspective, I anticipated there would be a transition from a unipolar world, to a balance of powers system that itself preceded humankind, finally entering a new phase through the birth pangs of change in the axis of civilisation. Refreshed with new elements, the theoretical framework I depicted at that time also played a role in my subsequent works.

 

In Strategic Depth, published ten years after this paper in 2001, I attempted to examine the geopolitical elements of the comprehensive transformation, then under way in relation to the previous ten years of political developments, and thus define Turkey’s strategic position within these new global and regional configurations. Looked at from the perspective of the framework in Systemic EarthquakeStrategic Depth was written with a view to analysing the 1991 geopolitical earthquake. Systemic Earthquake maintains this theoretical line of interpretation through its analysis of the security (2001), economic (2008) and structural (2011) earthquakes. In this sense, the book was reflective of my academic identity and accumulation of knowledge and experience.

Strategic Depth came from the pen of an academician without any diplomatic experience, Systemic Earthquake reflects the intensive diplomatic and political experiences of someone who had served for seven and a half years as chief advisor to the prime minister, five years as foreign minister and two years as prime minister. In this context, Systemic Earthquake reflects a method and style that includes both these sources of accumulated experience. From this perspective, the inclusion of intensive historical and theoretical analyses in the same framing as political/diplomatic experiences, may challenge the reader with respect to the proper alignment of theory and practice.

  1. Which political leaders have influenced you the most? Are these the ones you most admire?

 

In fact, the life of every leader who has combined historical processes with their own personal quests offers a very serious transfer of experience for anyone keen to draw its lessons. Looking at the lives of great leaders from this perspective, I have found unique instructive qualities in each of them, in terms of human nature, philosophical/intellectual background, historical process and social networks. During my academic life, I designed two courses for particular student groups with this background in mind: first, the intellectual/historical relationship between great intellectual movements that had an impact on humankind and comprehensive political transformations establishing a new order, and secondly, the relationship between intellectual and political leaders who had played a role in the development of national strategies.

It is not right to reduce leaders to a single category in terms of the factors that gave them an enduring place in history, or to evaluate them as individual personalities separate from one another. Leaders in different categories attracted my attention for various reasons, and I tried to learn from their varied experiences and particular talents. The most fundamental lesson to be drawn from the lives of leaders who have pioneered a new order by forging a link between the general flow of human history and the social/historical context in which they live, is the transformative and order-forming power of visionary leadership that recognises and accepts no limits or obstacles. Such leaders include Alexander the Great, who unified almost all of the ancient civilisational basins around a single order; Caesar, who made Rome the centre of a world order by leading to assume a role and reality beyond being a Mediterranean state; Caliph ‘Umar, who, together with a pioneering society without any great experience of governance, led a new order by rapidly spreading a new faith to all the ancient civilisational basins from Iran to Egypt; Mehmed the Conqueror, who established a new order by uniting state traditions drawn from the depths of Asia with the Roman tradition of political governance; and Napoleon, who, through his victories and defeats, had such a profound impact on a Europe being reshaped in every aspect around the system of values, given historical force by the French Revolution.

On the other hand, the most important lesson taught to us by leaders who had an order-restoring impact in periods of major transformation, is the need to establish harmony between the vision being pursued and the actual historical reality in critical transformative processes. In this leadership group I would include Marcus Aurelius, who restored the Roman order in a cosmopolitan context around Stoic thought against Germanic attacks; King Alfred the Great, who led the unification of Anglo-Saxons fragmented by Viking attacks, thereby achieving an English identity; Saladin, who achieved a crucial act of consolidation by uniting many elements of the East, whose order had been deeply challenged by the Crusades; Cardinal Richelieu, who laid the grounds for the era of Louis XIV by uniting France, at that time undergoing a process of ethnic and sectarian disintegration, around a common language and idea of national identity, in spite of the fact that both he and the country were Roman Catholic and therefore owed a form of allegiance to an authority other than the French King (i.e. to the Pope); Bismarck, who pioneered the unification of Germany on the basis of the identity of a modern nation-state, managing in the process to transcend the fragmenting impact of the Thirty Years War that had endured for some two centuries; Lincoln, who ensured the emergence of a United States of America united around shared values from the wreckage of the American Civil War; and Atatürk, who founded the Republic of Turkey by leading anticolonial independence movements after the First World War that destroyed traditional empires.

European Union flags [File photo]

Leaders such as Konrad Adenauer, Winston Churchill, Robert Schuman, Jean Monnet, Paul Henri Spaak, Alcide De Gasperi and Johan Beyen – all of whom pioneered the post-war “new Europe” idea that would later evolve into the EU, a series of developments arising from the ashes of the bitter experiences of the Second World War, the bloodiest conflict in history – are fine examples of the collective rational leadership, the need for which is so keenly felt during and after major crises.

The lives of three twentieth-century leaders with different civilisational and religious identities (Gandhi, Mandela and Alija Izetbegović) provide us with serious lessons and experiences in terms of their forbearance through all the challenging tests they underwent, especially the tensions between ideals and reality, values and power. They never shirked such tests, although often paying the price of confinement or even death.

In summary, whether you support them or not, and whether partisan or foe, the life journey of every figure who has left a mark on history is replete with valuable lessons. It is crucial that we learn from these lessons in light of our shared humanity, and to transfer this learning as sources of guidance in life and reality.

  1. What writers and scholars exerted the greatest influence on your intellectual development, and which were most relevant and important to you in the preparation of this manuscript?

Intellectual development is not a process that emerges in a linear fashion and through specific influences; rather, it is a cumulative work in progress that develops through interaction and internalises itself by reproducing itself at every stage. Therefore, specific, selective and micro-influences may be incomplete.

That said, I would like to list particular names in various fields that I have read with admiration and from whom I have benefited from since the earliest stage of my academic life, to the present day. Among many others, these include paradigm-founders such as Plato, Aristotle, Abu Hamid Al-Ghazālī, Kant and Hegel, who had an influence on intellectual currents carrying their names such as Platonic, Aristotelian, post-Ghazālī, Kantian, Hegelian, etc. Thinkers who played a significant role in the civilisational interaction such as Al-Fārābī, Ibn Rushd and Ibn Sīnā. Thinker-statesmen such as Cicero, Seneca, Nizām Al-Mulk, Thomas Moore, Ahmed Cevdet Pasha, Khayr Al-Dīn Tūnusī Pasha and Sa‘īd Halim Pasha, who endeavoured to establish a sound relationship between intellectual theory and political practice, experienced the tension inherent in this struggle, and in most cases paid a heavy price for it. Leaders like Marcus Aurelius, Winston Churchill and Alija Izetbegović, who produced substantial intellectual works in addition to leading their countries. Historians like Ibn Khaldūn, Arnold Toynbee, Fernand Braudel, Marshall Hodgson, Fuad Köprülü, Halil İnalcık and Kemal Karpat, who used inclusive methodologies while adopting a holistic approach to human history. Political philosophers such as Machiavelli, Hobbes and Jean-Jacques Rousseau, whose writings so brilliantly reflected the characteristics of the political culture in which they lived and who had a profound impact on later periods. Modern philosophers/ theoreticians such as Edmund Husserl, Max Weber, Hannah Arendt and Eric Voegelin, who exhibited horizon-expanding approaches in modern thought in their development of conceptual frameworks; and intellectuals/academicians who adopted multidimensional approaches so as to contribute to civilisational interaction, by transcending settled exclusionary molds such as Muhammad Iqbal, Lewis Mumford, Malik bin Nebi, Edward Said, Ernest Gellner, Ali Mazrui, Immanuel Wallerstein, Şerif Mardin, Fred Dallmayr, Richard Falk and Johan Galtung.

Systemic Earthquake is the product of blending the theoretical knowledge I have accumulated through a process of filtering the intellectual works I have studied in the fields of comparative civilisation studies, political history, political sociology, international relations and international political economy.

  1. In general, do you learn more from scholars with whom you agree or from those with whom you disagree? Can you give any examples?

 

In fact, the objective and simultaneous recognition of opposites facilitates learning and correct reasoning. Understanding is a prerequisite for developing an interpretative framework. Even if you end up disagreeing with a person or an idea, you must first understand it correctly. In a sense, understanding something requires an accurate grasp of its opposite. In the words of an old Turkish proverb, “things exist through their opposites.” This is the dialectic of existence. One cannot meaningfully adopt or defend any idea or viewpoint without a proper understanding its opposite. Thinkers with whom I disagree have thus contributed to my accumulation of knowledge as much as those with whom I agree.

I can give an example from the time I was writing my doctoral dissertation in the field of comparative political thought. I was undertaking a comparative study between Niccolò Machiavelli and two thinkers, one who lived in the same historical/cultural basin as Machiavelli (1469–1527) but at a different time, the other who lived around the same time but in a different historical/cultural basin. The first was Rome’s Stoic emperor Marcus Aurelius (121–180) to whom Machiavelli makes reference, the other was Kinalizāde ‘Alī (1510–1572), whose lifespan overlapped with Machiavelli’s and who wrote a book dedicated to an Ottoman Pasha (Semiz ‘Alī Pasha, during the rule of the Süleyman the Magnificent) on the relationship between politics and morality.

Reading Machiavelli’s The Prince, which places power at the center of things and links moral principles to power, Marcus Aurelius’s Meditations, which deals with state governance in relation to the moral teachings of Stoic philosophy, and Kinalizāde ‘Alī’s Akhlāḳ-ı ‘Alāī, which puts the principles of affection, morality, and justice at the center of politics, together, made it possible for me to better understand all three of them.

 

When it came to the relationship between morals and politics, I always felt closer to Marcus Aurelius, whose use of power was seen by Machiavelli as an exception in the relationship between the use of power and morality,[iii] and Kinalizāde ‘Alī than to Machiavelli. However, this did not lead me to conclude that Machiavelli was entirely wrong. My opposition to Machiavelli was over the issue of what kind of a future a person might expect in a world where every leader’s approach made morality subservient to power. However, in terms of the aspect of power that is related to human nature, my better understanding of Machiavelli also provided me with a more realistic context for power-oriented political relationships. In addition, a deep reading of Machiavelli gave me a clearer vision of how psychological factors related to human nature could produce moral deviations, which helped me to develop a kind of warning reflex when engaged in the practice of politics.

 

I still feel an affinity with Marcus Aurelius and Kinalizāde ‘Alī, who were trying intellectually to create the moral basis for expansive imperial orders in political terms, and I have learned a great deal from them. However, I have learned as much from Machiavelli’s work, which consists of advice given to the eponymous Prince with a view to consolidating his power in a fragmented Italy, even though I cannot on principle espouse his views, because learning is not about agreeing but understanding. Everything that allows one to understand is of value as an object of learning.

  1. In a world of sovereign states, is it possible to have a moral foreign policy? What role should respect for international law and the authority of the UN play in developing national policy, especially with respect to security concerns?

 

We may talk of three different types and areas of relationship in assessing the reciprocal actions of nation-states: shared destiny, common interests, and conflicting interests. The area of shared destiny, especially with respect to ecological issues, transcends territorial boundaries. Countries that share the same ecological destiny in the same geography are expected to cooperate on ecological issues even if they are in dispute over most other issues. In this sense, national security becomes a subcomponent of ecological security because, as the book emphasizes, one cannot possibly achieve national security in the absence of existential security. Nation-states that come into conflict over short-term interests or matters of prestige in these kinds of long-term matters over our shared destiny lay the ground for a shared catastrophe that will negatively impact everyone.

The area of common interests between nation-states relates to the existence of a sustainable peace and order that will enable them to coexist. In this sense, there is a direct relationship between national, regional, and global order on the one hand, and peace and order on the other. Respect for borders envisioned under international law and the development of common policies against terrorism and nuclear proliferation may be appraised in this context.

However, conflicts of interest between nation-states are an intrinsic aspect of international relations in spite of areas of shared destiny and common interests. And when a serious conflict of interest arises, the fundamental issue is the existence or lack of rational crisis management, as well as sophisticated diplomatic knowhow.

If the concerned parties behave with reference to the entirety of common normative principles in these kinds of relationships and areas, it means the suitable basis for the implementation of a moral foreign policy exists. In this context, the principal duty of international law and the UN is to consolidate this normative basis and keep nation-states adhering to this common ground as much as possible. In the event that the UN does not perform this function and international law is con- ducted on the basis of interpreting distinct national interests rather than by reference to common normative principles, the basis of shared destiny is weakened, areas of common interests are narrowed, areas of conflicting interests become more apparent, and crisis management becomes harder. In such situations, the basis of foreign policy shifts from ethics to raw power.

The logic of raw power is more and more becoming the organizing principle of major international powers in the conduct of international affairs. This is rather new, because both during the imperial era and ideological competition between socialism and capitalism (liberal democracy), power was accompanied by moral claims. Irrespective of whether these claims were genuine or not, the imperial powers predicated their scramble for power and authority on moral justifications. Likewise, both socialism and capitalism laid claim to legitimacy based on their contention that their ideological programs better fit the humanity’s needs and progress than did that of their ideological rival.

In recent years, there is a decoupling between power and moral claim. Trump represents the crystallization of this trend – power for the sake of power. Unless it is reversed, this trend will leave many fundamental questions of humanity unanswered. A question that this trend will face is whether it is tenable to have universal organizations without universally agreed-upon principles and values underpinning it? Unfortunately, decoupling of power and values and power and principles bodes ill for the course of human progress.

In the event that the UN performs its mission for international order within the framework of international legal norms and the practitioners of international law inspire confidence on the question of treating nation- states equally in terms of their shared destiny and common interests, it becomes less likely that nation- states will come into severe conflict while pursuing their individual interests. The current tendency of tensions between nation-states rapidly to morph into crises and wars stems from the international order’s failure to inspire successful forms of peaceful settlement of disputes.

  1. Do you think that the world map will look very different in a hundred years?

History reflects the dialectic of change and the sustainable order reflects the harmony of the continuity. The future is shaped through the inter- action of elements of change and continuity. Those who defend the order by reference to the permanence of the status quo based on conjunctural maps cannot predict or anticipate the dialectic of historical change; those who get lost in the volatility of geopolitical maps shaken

by ongoing earthquakes fall into the trap of chaos while imagining they are directing, or at least, controlling change.

While the change in the geopolitical map created by a geopolitical earthquake that struck approximately thirty years ago has still not achieved legally grounded stability, claiming that the same map will still be relevant a hundred years from now detaches history from the dynamic of change. The question is not whether there will be change or not, but how it will be directed. An unprincipled and opportunist approach that provokes change in line with its own interests will pave the way for new destructive processes. These will also likely engulf the advocates of such an approach, while a principle-based, visionary approach in managing the birth pangs of change will lead to a new order with far better prospects of viability.

In addition, the head-spinning pace of human mobility and technological innovation is likely to lead to the replacement of a territorial and space-dependent perception of the current world map with the shaping of a space-transcendent perception of the world map, especially when we appreciate the fact that this momentum is set to accelerate even further in the coming century. In such a process of paradigmatic change, non-conventional maps such as demographic maps, ecological maps, and cyber-communication maps will be as influential as territorial political maps of the world; it is a virtual certainty that world order will be dynamically reshaped on this multidimensional basis, but in what patterns cannot be yet discerned.

  1. In addition to law and international public opinion, should ethical principles shape policies? How to balance military necessity against civilian innocence in combat situations?

It is essential that ethical principles shape policies. An understanding of politics that is free of ethical principles ultimately gives rise to an environment in which the rule of the jungle prevails in national and international relations, leaving humankind to face an undesirable future. The alignment of ethical principles and policies is critically important, especially in relation to international humanitarian law.

The exponential increase in the destructive capacity of weapons technology has enormously amplified the imbalance between military capacities, military objectives, and civilian losses unrelated to the object- ives of combat. When it comes to destructive capacity, human history has gone through three stages with respect to types of weapons as underlying technology-based conflict and now stands on the threshold of the fourth.

The first stage was pitched battles in which the destructiveness of war was limited to the soldiers located in the battlefield itself; enemy sides stood face to face and tried to liquidate one another. The second stage saw the introduction of air forces and long-range artillery and, with that, the exposure of troops and civilian targets far beyond the battle lines to the destructiveness of war. Destructiveness thus gained a supraspatial quality and ethical control became considerably more challenging to maintain. With the use of the atom bomb against Nagasaki and Hiroshima, the third stage saw destructiveness becoming supratemporal and impacting future generations. In this case the moral responsibility for the political decision to drop the atom bomb took on a transgenerational dimension.

The fourth stage, at the threshold of which we now stand, involves a destructive capacity that is both supraspatial and supratemporal in such a way as to risk the eradication of the future of all humankind. Albert Einstein’s well-known statement that “I do not know with what weapons World War III will be fought, but World War IV will be fought with sticks and stones,” a prediction that is used to demonstrate the level that this destructive capacity has reached, indicates the total destruction inherent in a mechanism of war detached from ethical control. As I stressed in the book I wrote immediately after the Cold War,4 the ethico-material imbalance that most strikingly manifests itself in the destructiveness of war technology constitutes one of the most critical dimensions of the comprehensive civilizational crisis that we are going through. Since then, the concept of the ethico-material imbalance that I employed to show the gaps between political mechanisms and moral values has grown wider in almost every field.

In addition, the advent of remote-controlled drones in conflicts and robots developed without moral responsibility and accountability has produced serious issues of ethical control even in conventional wars and limited military operations. In this context, there is now a pressing need for a reconsideration of international conventions on these issues.

 

 

  1. You propose “inclusive democracy” as a desirable political goal. How does this differ from “electoral democracy”? Should the values and procedures of inclusive democracy also inform the structures and practices of global governance?

One of the most fundamental areas of tension in thinking about democracy today lies in this very critical difference between inclusive and electoral democracy. And the source of the threat to Europe, which is seen as the cradle of democracy, by extreme-right and racist currents that use electoral democracy as a base from which to impose an exclusionist political agenda after winning an election through all kinds of populist rhetoric, also reflects this dilemma. The fact that Marine Le Pen got through to the second round in the French elections and that racist parties are on the rise in Holland and Germany makes it clear that if these political currents win an election, even by a small margin, the entire concept of citizenship in constitutional societies will be eroded and fall victim to a polarization based on a binary division. Drawing a distinction between “real” French, German, British, Dutch, Italian, etc. people and “newcomers” or “strangers” means the destruction of inclusive democracy by electoral democracy. An electoral democracy that eradicates inclusive democracy will lead to the revival of the historical experiences of extremism undergone in Europe between the two World Wars.

The only way to overcome this tension is to view electoral democracy and inclusive democracy not as alternatives but as complementary to one another. The process of electoral democracy takes precedence over the principles of inclusive democracy. As a process, electoral democracy is a sine qua non for a real democracy, a real imperative. A lack of respect for the national will expressed in an election means the eradication of the principal gains of democratic history. But inclusive democracy is an absolute prerequisite in terms of enabling the grounding of a real, self-regenerating democracy. Otherwise, as happened in the period between the two World Wars, when a government formed on the basis of the unqualified nature of the one-time results of electoral democracy breaks away from inclusive democracy, electoral democracy is likely to be rendered meaningless, and totally undermined.

In this context, electoral democracy constitutes the infrastructure of a real democracy; inclusive democracy its load-bearing pillars. Without electoral democracy inclusive democracy cannot be realized; without inclusive democracy, electoral democracy degenerates, and cannot flourish through self-regeneration. Electoral democracy makes up the mechanics of democracy, inclusive democracy its organic structure. In other words, electoral democracy is hardware, inclusive democracy is software.

A constitution based on the human rights and human dignity serves to guarantee the complementary relationship between electoral democracy and inclusive democracy. In societies where constitutional consensus and conventions are in crisis, the risk is that inclusive democracy gets hollowed out by coups or populist ideologies, and that electoral democracy becomes a mechanical legitimating instrument of government. The coupism in Turkey and Egypt, which disregards the results of electoral democracy, and the rising extremist trends in Europe to use electoral democracy to destroy the most fundamental elements of inclusive democracy, threaten the future in equal measure.

These principles also apply to global democracy and governance. A UNSC system that fixes five permanent members in place without any electoral process while revolving non-permanent members are selected by means of elections involving the other 188 member states has minimal inclusivity while its electoral attributes reflect an ineffective oligarchic concept of governance. There is also a manifest need for new conventions to protect the rights of countries and indeed all humankind.

To sum up, and as emphasized in various sections of the book, the most pressing condition for a new world order today is the emergence of a new philosophical and implementable set of principles for inclusive national, regional, and global governance.

A protest calling for climate change on 1 June 2017 in Paris, France [kellybdc/Flickr]

  1. World order continues to be state-centric in its fundamental character – that is, with respect to the formation and implementation of policies on matters of global concern – yet the problems (climate change, nuclear weaponry) seem global in scope. How can the pursuit of national interests be reconciled with the realisation of global interests?

It is normal that the international system is state-centric. I think the problem here isn’t that the international order is state-centric. The real problem lies in the definition of sovereignty. Because the division of labour at multiple levels – local, domestic, regional, and global – requires a new understanding of sovereignty backed up by the political will of leaders. Given the hyper-interdependency of the international system and human destiny, the state can’t operate on the basis of the traditional Westphalian conception of the nineteenth- and even early twentieth-century understanding of the sovereignty. The concept and institution of sovereignty is in dire need of redefinition. In a revisionist understanding of sovereignty, the national level shouldn’t be set against the global level. They should be framed in ways that complement each other. In this respect, we should contemplate a new form of sovereignty, which is multi-layered, inclusive, and driven by commitments to the collective good.

From such a perspective, the nation-state is not a competitor of the international order but its building block. What is important is that these building blocks have a strong basis of legitimacy within themselves and that they have the flexibility and dynamism to accommodate the diverse concerns of the international system’s nation-states. When I spoke at international platforms about matters of universal concern like climate change and nuclear weapons, I always mentioned the need to develop first a global awareness and only then to posit this awareness in an international normative framework and convention. On the question of awareness, it is an absolute condition that issues related to the ontological existence of humankind supercede all kinds of concepts of individual state interests, because (and I emphasize this in the book) the political existence of nation-states is impossible without ontological existence. Ignoring the threat to humankind’s common security posed by the excessive pursuit of individual national security presupposes an Armageddon psychology and apocalyptic scenarios.

The most effective method to eliminate such scenarios is the application of legal norms developed in this context, without exception. For example, the inconsistency of certain countries who regard nuclear weapons as a threat but ignore the nuclear armament of other countries in the same region shakes trust and confidence in the international system as a whole and paves the way for every country to take its own measures to arm itself regardless of the threat to collective wellbeing, even survival. It is impossible to overcome individual conflicts of interest in an environment where the interests and concerns of certain nation-states are regarded as more important than those of others.

In this context, it is essential to establish a strong and consistent connection between consciousness of humanity and of citizenship. This can only be achieved through the spread of communications between global civil society and national civil societies and can be realized by the emergence of psychological spheres of influence that transcend the outlook of nation-states. It should not be forgotten that threats such as climate change and nuclear arms whose destructive impact cannot be restricted to the legal and spatial boundaries of nation-states cannot be resolved only by negotiations limited to nation-states.

  1. In this conversation you have talked about how your career has made the shift from academic to political, then back to academic life and now back again to the political domain after establishing a new party. Do you consider this to be your final professional destination? Or would you welcome a future rhythm that involved alternating periods of government service and scholarly life? In this sense, would you describe your present state of mind to be best described as “post-political” or “pre-political,” or some combination?

A person making his or her own decision about personal final destination is like the “end of history” claim for humankind, a claim that I have opposed in this book and on every possible occasion. As Demetrius strikingly said, “An easy existence untroubled by the attacks of Fortune is a Dead Sea.”

If one’s final destination were known, the excitement and energy of life would be lost. Perhaps the most important thing that makes a person happy, even when they cannot know it, is their own final destination. The only thing I know at this point is that neither my personal future nor that of humankind is going to be “an easy existence.” This doesn’t mean I have a pessimistic view about the future. Quite the reverse, the new challenges brought by those “attacks of Fortune” also require fresh paradigmatic initiatives. With the dynamism engendered by these challenges, it is certain that neither my personal future nor the general future of humankind is going to be that “Dead Sea;” the challenge is to find key wavelengths and frequencies able to surf successfully through the continuously rising flow of history, and thereby reach their target. The “future rhythm” you refer to in your question will also to some extent be the work and challenge of this surfing exercise.

I have always approached post- and pre-conceptualization with caution. Every post-situation harbours its own pre-situation. In other words, in the process of history every post-situation is shaped in the womb of a pre-situation. As Wordsworth said, “The child is father of the man.” Could the conditions of the post-Cold War period have been formed without the process of change that occurred in the final years of the Cold War?

This also applies to personal journeys and quests. The academic work Strategic Depth that I wrote in the pre-political period of my life defined my behaviour in the political phase of my life, while my post-political academic works have been shaped by the experiences derived from that same political phase.

When I left the prime ministry, I never said I had left politics behind. In any case, after such a high-profile past in politics, one can’t really remain outside of political debate even if one says “I’m out.” Although I have tried to avoid political polemics in this period, I have remained on the political agenda with both positive and negative comments. So, there is a clear difference between becoming post-governmental and post-political. Regardless of official titles I was and will always be political.

At the early stage of writing Systemic Earthquake in 2017, I was a parliamentarian of my previous party, when the book was published in January 2020 I became Chairman of a new party, Future Party. As I have underlined in my books, history continues to flow personally, nationally, and globally. I do not think there will be a pre- or post-era in my life. But, there will be a difference compared to my previous experiences. Unlike my decision not to write when having an official position which I followed faithfully during my public services as Chief Advisor, Foreign Minister and PM from 2002 until 2016, I am planning to continue my academic publications in the future despite resuming the work of being an active politician.

All these challenges are inherent to politics. But just as one’s personality cannot be divided, nor can one’s life. The key thing is to live an unfragmented life with an undivided integrative personality. One can do this by taking the right steps that bring together the needs of the moment with one’s own conscience. The difference I made in politics came to a large extent from my scholarly past. On the other hand, what is distinctive about my post-political academic works will undoubtedly be fed and influenced by my political experiences. Therefore, I can say that my present state of mind is a combination of both.

As an academician I never underestimated the significance of being a politician, and when I became a politician I tried never to forget my identity as an academician. The first stopped me from getting detached from the reality of the flow of history, while the second kept me from getting imprisoned in constructed conjunctural reality.

  1. In contemplating Turkey’s future in a time of systemic earthquake, what sorts of response would you hope to be forthcoming from political leadership and from civil society?

No scholar can ignore the time–space dimension they encounter within themselves and the experiences they have gained as they generate and develop ideas. In that spirit I naturally drew upon the case of Turkey throughout the book and especially in the chapter entitled “Inclusive National Governance.” I believe that the five main principles I considered with reference to the recommended approach to deal with the systemic earthquake are primarily applicable to my own country. In fact, Turkey constitutes perhaps one of the most striking examples with respect to these principles.

A Daesh sign at the entrance of the city of Al-Qaim, in Iraq’s western Anbar province near the Syrian border, seen on November 3, 2017 [AHMAD AL-RUBAYE/AFP/Getty Images]

If we take a summary view of Turkey in terms of these principles, an inclusive sense of belonging and citizenship is a priority prerequisite for the country’s internal order, because Turkey, with its Ottoman legacy, includes within its borders almost every ethnic and sectarian element of the Balkans, Middle East, Caucasus, and Central Asia. The country’s political leaders and civil society must act in cognizance of this reality and exhibit a stance that does not exclude any ethnic or sectarian identity. People want to see those who govern and represent them by their side at critical periods. During our struggle with terror organisations such as Daesh, the PKK, and (DHKP-C), whose terror activities escalated in 2015 on account of developments in Iraq and Syria, I would spend every weekend with people in the most affected districts, addressing some mass meetings in Kurdish as best I could. I was the first Prime Minister in the history of the Republic to take part in an Alevi gathering at a djemevi (cemevi) and as a minister I paid visits to all the non-Muslim religious centers including the Greek and Armenian Patriarchates and the Chief Rabbinate. These experiences convinced me that the strongest link between political leaders and the people is a shared sense of belonging. Over time, political leaders and civil society groups who neglect this lose not only their administrative but also their representative effectiveness, and of course, diminish their legitimacy.

Secondly, Turkey is a remarkable case when it comes to a nation-state’s geopolitical basis, because apart from the one with Iran, none of the country’s borders rest on sound geopolitical ground. The border with Syria cuts through residential districts, the border with Iraq through mountains, and its Aegean border skirts islets and rocks. The risk of suddenly erupting tensions is always present. The main reason for my advocacy of the “zero problems with neighbouring countries” principle from 2002 onwards was the potential that existed to derive an order from these geopolitical abnormalities. Successfully pursued up until the structural earthquakes that occurred in surrounding countries in 2011, this policy saw the establishment of high-level cooperation mechanisms with Russia, Greece, Iraq, Syria, Bulgaria, Azerbaijan, Georgia, Ukraine, and Romania, and the development of relations between peoples through mechanisms such as visa waiver and free-trade agreements that were developed with neighbouring countries. Our 2004 negotiations with Greek Cyprus, and the protocols signed with Armenia in 2009[i] showed our determination to achieve normalization (we did not have diplomatic relations with either state before). Today, one of Turkey’s top priorities is the achievement of stability and peace all along its geopolitically sensitive borders.

Thirdly, the freedom–security balance that forms the basis of political legitimacy needs to be painstakingly maintained. It is crucial that a country like Turkey, which has passed the test of being a democratic country in a high-risk geopolitical environment, does not lurch between freedom and security preferences. The fact that in the face of the global security earthquake in the post-9/11 period that shook the world and tended to detach countries from human rights, Turkey made significant strides with respect to the implementation of human rights and freedoms, which are the fundamental elements of inclusivity, and backed this up with a multidimensional foreign policy, enabled the country to make a regional and global difference in those years.

Fourthly, its young and dynamic demography is both a major advantage and a serious challenge for Turkey. Educating and preparing this young and dynamic population for the future requires a policy of sustainable economic development and fair income distribution. It is crucially important that political leaders, the business world, and civil society generally agree on this issue on the basis of shared, rational objectives.

The fifth point is that Turkey is going through an absolutely critical process with regard to the institutional structure of national order. With institutions developed within a deeply rooted state tradition, Turkey faces the need to rebuild its state architecture as a result of the recent constitutional referendum. In this context, the balance between institutional continuity and institutional restructuring needs to be carefully developed to safeguard democratic expectations.

In summary, Turkey’s geography requires multidimensionality, its history inclusivity. If Turkey takes both these elements into account, the ongoing systemic earthquake will present not only risks but opportunities. Turkey needs to find its own distinctive path at a time when the systemic earthquake has encouraged a global trend towards exclusionary autocracy. The course of historical change is determined not by those who act in line with the general trend on the basis of herd mentality but by those who make a distinctive difference. Even if this difference is not sufficiently appreciated in the heated midst of the process, its influence will make itself felt over time. This is how to ensure national legitimacy and international prestige.

  1. Since completing Systemic Earthquake there has been a continuing trend toward demagogic political leadership, coupled with polarized patterns of governance, in many of the most important countries in the world. Does this trend disturb you? Do you expect it to continue?

The most frequently overlooked element in efforts to establish national, regional and global order is the psychological factor. In a psychological atmosphere in which feeling, emotion, and sentiment overwhelms rational thought, rhetorical radicalism subsumes any shared or common view, tactical steps subsume strategy, and impulses subsume principles. While building sustainable order is all about a set of principles generated by a common mindset and the strategic issues based on them, acquiring and keeping hold of conjunctural power is a tactical question based on impulsive and rhetorical radicalism. The growing trend to demagogic political leadership is the psycho-political reflection of rhetorical radicalism; a polarizing and exclusionary understanding of politics, a reflection of its impulsive radicalism. Like everyone with a worldview that envisions a future for humankind based on equality and human dignity, I am seriously concerned about this development. A number of large-scale wars in the past were triggered by reciprocally impulsive reactions that had emerged from such a psycho-political atmosphere.

However, it is impossible to overcome this disturbing development by getting caught up in a psychology of helplessness in the face of such a wave, or turning a blind eye to the conditions that have led to the wave in the first place. What is needed is an accurate analysis of the psychological grounds that have been thrown up by it and the promotion of a vision of order based on humankind’s shared legacy of experiences with the capacity to generate the global momentum required to create a counter-wave.

US President Donald Trump delivers remarks at ‘Keep America Great Rally’ on January 30, 2020 in Des Moines, IA, United States [Kyle Mazza / Anadolu Agency]

  1. The Trump presidency has epitomised this trend, which has also led to an ultra-nationalist foreign policy, which exhibits hostility to international law, the UN, human rights, and cooperative approaches to global problems. Does the world suffer from the loss of a more internationalist style of global leadership associated with pre-Trump American foreign policy?

To use the conceptualisation I have proposed in the book, we might say that Trump represents the most extreme slide into strategic discontinuity in US foreign policy that has been experienced with any post-Cold War change of presidency. In every period changes in the international system have necessitated a paradigmatic renewal in US strategy. As the eighteenth century gave way to the nineteenth, and however much the young United States of America appeared to have been excluded from the international Eurocentric colonialist power struggle, the Monroe Doctrine published in 1823 in line with the new state of affairs in the wake of the Congress of Vienna helped to lay the ground for an internal consolidation around republican principles as well as an American continent-oriented consolidation of power far from the influence of monarchical restoration in Europe. Through the nineteenth century, this founding paradigmatic principle, which was enunciated by the fifth US President James Monroe, recognized as the last of the United States’ founding fathers, constituted a strategic basis unaffected by whichever political party the president happened to be affiliated.

As the nineteenth century gave way to the twentieth, the United States, whose economic prowess had turned the country into a leading actor in international economic-political balances, became an international naval power in the context of the Roosevelt Corollary’s more assertive interpretation of the Monroe Doctrine, after which the beginning of the country’s assertion of influence within the international system through the principles laid out in President Wilson’s Fourteen Points indicated a continuum of change in the US strategic paradigm. The fact that Theodore Roosevelt was a Republican, and Wilson a Democrat, never caused any strategic discontinuity in terms of the United States’ status as a leading actor. The proactive strategy of Franklin Roosevelt (a Democrat, unlike his Republican cousin Theodore) in the Second World War put the United States center stage in the post war international system. Even in this paradigmatic transformation, the “American Century” was one of consensus and continuity in terms of twentieth-century economic-political, geopolitical, and geo-cultural balances in the strategy’s principal elements.

However, as the world moved into the twenty-first century, and in spite of having emerged as the victor of the Cold War, the United States’ strategic paradigm proved unable to forge a coherent and consistent whole. George H. W. Bush’s “new world order,” Bill Clinton’s “humanitarian interventionism,” George W. Bush’s “pre-emptive strike,” Barack Obama’s “multilateralism,” and Trump’s “America First”-oriented conceptualisations contained elements of incoherence and discontinuity as well as being in part reactions to their predecessors’ policies.

In a nutshell, while the nineteenth century was the European, and the twentieth century the American century, the twenty-first, a “Global Century” shaped by the dynamic elements associated with globalization, has a complexity that is hard to comprehend, disentangle, and resolve by reference to just one geographical location. While a multi-dimensional, multi-actor period such as this (in the book we call it the “multiple balance of powers system”) requires a far more sophisticated approach, the US slide towards a one-dimensional, self-centric approach characterized by Trump’s “America First” slogan, with its disregard for international law and norms, is not sustainable either in terms of the functioning and operation of the international system or of US interests.

  1. The rise of China represents the most dramatic geopolitical development in the twenty-first century. Do you think that the rise of China is on balance beneficial or detrimental to the future of world order? Do you believe China can fill the global leadership vacuum created by the Trump withdrawal of the leadership role that the United States played since 1945? Could you envision a more multi-polar global leadership emerging in the future? Or possibly a post-Trump US/China joint leadership? Or is a new Cold War more likely with the United States on one side and either China or Russia, or some combination, on the other?

In the post-Cold War era, especially after the 2008 global crisis, China’s attainment of a leading position in the world economy was a new state of affairs that represented a test for China itself as much as for the world and the other major powers. During its classical periods, China saw itself as the “civilized center of the world,” even “the world itself”; it possessed a strategic paradigm based on protecting itself from potential threats from the world outside, rather than taking any interest in the external world. The Great Wall of China constitutes the most striking manifestation of this strategic mindset paradigm, which was the product of China’s effort to protect its own world from the that which lay beyond. In this context, except for the Hui-origin Muslim Chinese Admiral Zheng He’s overseas expeditions at the beginning of the fifteenth century, China had no concept of a common order, or working to establish contacts with the non-Chinese world. The Opium Wars, which forced China’s strategic culture to change in the mid-nineteenth century, were essentially waged with a view to discontinuing this strategic resistance. Once again China’s confrontation with modernity took place through the inward-looking Maoist methods identified with the Cultural Revolution.

In the post-Cold War period, China’s ever more rapid integration into the international economy along reformist lines pushed China to change its aloof approach towards the outside world that it had adopted in the traditional and modern periods. Indeed, it would be impossible for a global power with an economic structure integrated into the world economy either to remain outside the world political system or to remain indifferent to developments within it. In this sense, Chinese President Xi’s The Belt and Road Initiative project is not just a sign of economic interdependence. It will also reflect China’s inevitable and growing interest in the field of international politics, including the security of the transport corridors that it naturally requires.

In this framework, the main question is what tools and methods are going to be applied by China to further its interests. From the perspective of China’s traditional stance as well as today’s economic-political balances, a scenario in which China gains the status of guarantor of the global order by itself, by filling the vacuum left by the United States in the wake of Trump’s policies, appears unlikely. The scenario in which China assumes a leadership role in conjunction with the United States risks creating a polarization that could bring actors such as the EU, Russia, Japan, and India together in such a way that this kind of quest for balance would frustrate any such joint-leadership project. The move towards the conditions for a new Cold War with the United States at one pole and China at the other is not a burden that an increasingly complex network of economic relations can carry. It should not be forgotten that the previous Cold War did not take place within the same economic model but only ever between blocs of countries with different economic models. It would be very hard to forge an enduring Cold War in a world where the same or similar economic models are interacting in a global economy. In this context, the most likely scenario is a “multiple balance of powers” system with growing Chinese economic-political influence but in which the thematic, sectoral, and geopolitical basis of international relations may be dynamically determined at any moment.

Yet it would be wrong to restrict China’s distinctive and distinguishing features to the realm of economic-political balances in this new period. Every change that occurs in China, home to one-quarter of the world’s population, will also be decisive in the cultural order that includes the scientific and technological elements of the international system. China’s growing influence in the restructuring of the global cultural order will be accompanied by the transformation of the modern, mainly Eurocentric, cultural order. Therefore, this “multiple balance of powers” system’s soft (cultural) aspects need to be taken very seriously and all multinational platforms, especially the UN system, need to have a genuinely peace-promoting and inclusive character. As is emphasized in the text of the book, Pax Universale does not need global Caesars followed by self-centric Neros, but rather Marcus Aureliuses from different cultural basins.

Young boys wear medical masks as a precaution to protect themselves from coronavirus in Kirkuk, Iraq on February 25, 2020 [Ali Makram Ghareeb/Anadolu Agency]

  1. Your book Systemic Earthquakewrites about ruptures that change the international atmosphere in dramatic and unexpected ways. Do you consider the global spread of COVID-19 virus is or could become such a rupture?

Since we are still living through this pandemic, it is hard to make a definitive judgment that it will lead to a global rupture. However, it is at least clear that COVID-19 is set to be a precursor and test bed for probable global-scale ruptures.

Precursor, because COVID-19 has strikingly shown once again that human destiny flows along a single common river that does not allow for the separation of one continent from another or one religious or ethnic community from another. It is both natural and inevitable that with the acceleration of growing global interaction we shall soon see stronger waves and ruptures that will impact our common future.

Test bed, because the stance taken on COVID-19 will determine the course of subsequent ruptures. Broadly speaking, when it comes to this stance there are two options. The first is that just like quarantining people during the pandemic, societies and countries will tend to quarantine themselves on a long-term basis through inward looking policies designed to avoid being affected by global ruptures. It is extremely hard for this introspective attitude, which I define in the book as a cynical reaction against globalization, to deliver a lasting solution with respect to the impact of global rupture. It should not be forgotten that quarantine is a temporary measure; making it permanent means the end of societal life. Likewise, the long-term nature of the restrictive measures taken by countries to mitigate the impact of the epidemic serves to minimize the positive interaction gains of globalization.

The second possible stance is to move forward once again with a shared global-scale ontological consciousness based on a common concern for the existential future of humanity in the face of this global rupture. This shared ontological consciousness will not have the capacity to develop enduring responses to global ruptures unless it transcends the political and economic interests developed individually by political actors and countries. As we underline in the book, where there is no ontological existence, political existence loses its presence and meaning.

  1. This health challenge arises in a historical circumstance in which the world is experiencing trends toward the embrace of ultra-nationalist ideologies and the rise of democratically elected autocrats. Against this background, does the COVID-19 challenge underscore the importance of global cooperation under the auspices of the United Nations?

Absolutely. In order to be able to transform this shared ontological consciousness into a set of global policies, the only tool available to us is the UN, whatever its troubles. Yet if the UN is to be able to carry out this duty, the privileged status it affords to certain countries in terms of their capacity to determine the destiny of humankind needs to be reformed. Having said that humankind needs to move forward with a single and shared ontological consciousness, the current UN structure, based on granting five countries ultimate decision-making status with respect to the political manifestations of this destiny, of its essence runs contrary to this consciousness.

In particular, in the event of ultra-nationalist and autocratic leaders who prioritize their own short-term personal and national interests coming to the fore in these five countries, the UN ceases to be a solution-producing body and turns into a source of problems. In the context of a state of affairs in which these five countries pursue their disparate interests and display mutually polarizing attitudes, it becomes difficult for the UN to mobilize a shared ontological consciousness. The tendency of the US and China to exchange accusations during the COVID-19 crisis has been a cautionary tale. Approaches such as this serve to block the existing UN system and undermine the idea that the UN is the shared mechanism of humanity. Right now, the urgent need is to achieve an inclusive, democratic and participatory United Nations, and to enhance its effectiveness.

  1. In a deeper sense, the COVID-19 eruption suggests the limits of our understanding of what the future will bring to humanity. Does this uncertainty about the future make it more essential than ever to govern societies in accord with ‘the precautionary principle’? Does the ecological fragility of world order, combined with its vulnerability to previously unknown viruses, suggest the need for more flexible democracies or does it portend a post-political future for all levels of social and political order?

Yes, ‘the precautionary principle’ can be an important reference point in overcoming the global vulnerabilities and uncertainties associated with rapid technological development and globalization. However, the success of this principle in practice depends on its unconditional and blanket acceptance and implementation by all parties. Otherwise, non-compliant parties may gain a scientific / technological / economic advantage over their compliant counterparts. In the framework of this principle, the manner in which the United States’ failure to ratify the Kyoto Protocol and Canada’s withdrawal from it prevented the World Charter for Nature adopted by the UN in 1982 and enshrined in the preamble of the 1987 Montreal Protocol from achieving its desired effect, is clear. When ‘the precautionary principle’ framework is correctly defined and implemented without exception, it can prevent or at least limit this kind of vulnerability. And for this to happen, an institutional body and mechanism that is not wrapped up in political concerns but motivated by universal principles needs to be established.

The most effective solution to the ecological vulnerability further exposed by the emergence of viruses previously unknown to the world order is the concept of an inclusive and participatory flexible democracy. This concept of democracy must bring with it a fresh political mindset. Perhaps these developments can be seen as a precursory phase towards a new political understanding, rather than a post-political phase. At the beginning of human history too, human beings basically transitioned to the phase of forming a political society by removing the security risks associated with natural life in the most primitive fashion. This time, humanity will have to develop a new global-scale concept of political societal order in order to bring the ecological risks created by humankind’s own hand under control. Although this concept of order appears post-political from the modern political perspective, from the perspective of a political order based on global governance, it could well take the form of a harbinger.

In any case, all these developments show that we are pushing against the limits of current understandings of political order. Humankind will either turn to a new humanity-oriented concept of global governance, or rupture from human values on the wheels of autocratic structures seeking to exploit all these vulnerabilities. Our primary duty today is to strive to forge the intellectual infrastructure of a new humanity-oriented order of global governance.

Indeed, this is the fundamental purpose of this book, Systemic Earthquake.

[i] For an assessment of these negotiations from a third perspective see Hillary Rodham Clinton, Hard Choices, New York: Simon & Schuster, 2014, s. 218-220.

 

 

 

 

 

 

 

Explaining the ‘Asian Miracle’

20 Mar

[Prefatory Note: The posted essay is a modified version of an interpretative review of an outstanding book that initially appeared in Challenge, an online publication, a few weeks ago. A timely aspect of Nayyar’s book is the emphasis he places on the importance of effective state/society relations in explaining the remarkable growth experience of Asia. Such an insight seems relevant to the degree to which various governments are effectively managing responses to the challenge of the Coronavirus pandemic. It would seem at this stage that well-managed autocracies do better than most democracies, and much better than poorly managed democracies that embody capitalist structures, priorities, and values..]

 

 

The Economic Resurgence of Asia: Reaping the Benefits of Decolonization. By Deepak Nayyar, Oxford University Press, 2002

 

The distinguished Indian economist, Deepak Nayyar, has written a fascinating and illuminating account of the economic rise to ascendancy of Asia over the course of the past 50 years, entitled Resurgent Asia: Diversity in Development, (Oxford University Press, 2019). Its rigor, lucidity, statistical evidence, and reasoned analysis enable this book to stake a claim of being the definitive account of the extraordinary Asian rise that has reconfigured the world economy since the collapse of European colonialism in the two decades after World War II. Nayyar tells us near the beginning that “The object of this book is to analyze the phenomenal transformation of Asia, which would have been difficult to imagine, let alone predict, fifty years ago.”[4] It would indeed seemed so absurd to have been upbeat about the Asian economic future as late as 1960, a case of “imagination running wild” according to Nayyar.[2] To drive home this striking point he looks back at The Asian Drama (1968), the classic three-volume work of the celebrated Swedish economist, Gunnar Myrdal, who despite a magisterial effort to marshal all available information at the time, turned out to be totally wrong in his central pessimistic prognoses of the economic future of Asia. His book was treated as an authoritative confirmation of the conventional wisdom of the time that relegated Asia to a permanent condition of impoverished underdevelopment.

 

Nayyar helps us understand why Myrdal was so wrong, and if I get correctly the force of his well-honed argument, the foreboding prognosis resulted from the gross underestimation of Asian human capital (skilled and high performing labor, education), governmental capabilities, and legacies from formidable pre-colonial economic stature and achievements. Furthermore, Asian states emerged from colonial governance and imperialist exploitation much less shattered than did their African or Latin American counterparts, and were endowed with governing processes that were better able to steer their economies in ways that produced sustained developmental success. A major theme of Nayyar’s groundbreaking study of what he labels ‘Asian resurgence’ is the critical importance of rational guidance and management of development by a strong and autonomous state that can operate in a constructive and intelligent manner when it comes to formulating its pro-active managerial approaches to economic and social development. As a result, Asian governments did not need to defer to the status quo orientations and stultifying special interests of traditional elites while implementing polices designed to promote rapid industrialization, education, health, social and economic rights, and technological innovation, and maybe most important of all, the governing elites of most Asian countries exhibited flexibility with respect to policy, being not hamstrung by ideological dogma of either capitalist or communist hue.

 

A distinctive feature of Nayyar’s ambitious approach is to broaden inquiry beyond the rise of China, or at most China and India, by examining the economic experience of no less than 14 Asian economies over the half century, beginning in 1970. This comparative methodology enables a search for clues as to why some countries in Asia did far better than others when it comes to GNP growth per annum and per capita without losing the other part of the story, which tells of the startling progress achieved by Asia as a region. In effect, some Asian countries did perform better than others, and some did better in certain intervals than at other times, accounting for two dimensions of diversity. Yet this deconstructive insight should not divert attention from the central assertion: that Asia as a region did spectacularly better than was expected, especially after 1970, and from economistic perspectives far better than could have been responsibly predicted. It is obvious that Africa and Latin America did not fare nearly as well as Asia, which is a part of the puzzle that Nayyar takes note of, but does not try to solve beyond a casual observation that their state formation lagged, their human capital was of poorer quality, and these countries did have nearly as robust pre-colonial economies as did several Asian countries with their impressive manufacturing and governance capabilities.

 

In one sense, the most startling finding, given this comparative approach, is that ideological orientation meant far less than the effectiveness of state intervention in the economy by its pursuit of industrial policies designed to promote growth, especially via export promotion and an opening of the national economy to trade and investment potentials arising from profits, savings, and transnational capital flows. In other words, competent and pro-active government, superior human capital facilitated by education and health, and reinforced by a cultural work ethic, as well as the effective assertion of national sovereignty seemed to be the key explanations of the most spectacular success stories among the Asian 14, with China leading the way. What Nayyar concludes is that “The state and the market are complements rather than substitutes and the two institutions must adapt to each other in cooperative manner over time.”[226] He does suggest that China and Vietnam are special due to their “strong, one-party communist governments, with clear objectives, that could co-ordinate and implement policies” in a manner that cannot be “ that could not be replicated elsewhere in Asia.[226]

 

This enlightened outlook that was initially implemented with excellent economistic results by the Asian Tigers (South Korea, Taiwan, Hong Kong, and Singapore), then emulated on a grander scale by China, and lately more unevenly pursued by India. These success stories contradicted economic dogma in the West, which favored either a supervisory relationship between state and market as in the social democracies of Europe or a more deferential approach by the state to the market as in the United States where the tyranny of Wall Street and the ceaseless budgetary demands of the Pentagon has often impaired effective governmental activism with respect to markets except through various subsidies, tax breaks, and crisis-induced bailouts. Although not explicitly articulated, Nayyar seems to be suggesting that the genius of Asia was to escape from the Cold War poles of economic ideology, and figure out practical ways of making make the state a useful guide and facilitator of economic policy rather than a passive spectator or an omnipotent overseer. The Asian success was to find various pragmatic national formulas for coordinating state and market on the basis of synergies that were dedicated to overall success in achieving sustainable development at high rates of growth, and that displayed talents for adapting to the challenges of changing global and regional economic conditions.

 

One dimension of this hyperbolic economic growth in Asia involved the effective management of complex transitions from an economic concentration on the export of primary goods and resources to a much-increased reliance on manufacturing, and from there moving the center of economic gravity to a more and more sophisticated stress on the provision of services. Nayyar takes due note that during this process of growth and expansion, it is of utmost importance to take maximum advantage of technological innovations to ensure that increases in productivity offset rising wages, which enables a continual rise in living standards without sacrificing the savings and profits needed for continuous investment, which alone can sustain aggregated momentum on the level of macro-economic policy.

 

Perhaps, as significant as the prodigious demonstration of the diversity of the 14 Asian national trajectories amid the unity achieved in the form of sustained economic growth, is Nayyar’s methodological mastery of the complex statistical material presented in the form of data, charts, and graphs. Writing in a manner that exhibits great economistic sophistication, Nayyar yet somehow has produced a book that is understandable by non-economists with a storyline that provides real insight into the dramatic restructuring of world order in the aftermath of colonialism and economic imperialism (significantly, not all of the non-West was colonized, but it was all, including of course China exploited by the West). Indeed, Nayyar shows that while India was a British colony and China never lost its formal independence as a sovereign state, their economic decline in the colonial period was roughly equivalent, with both emerging after World War II as highly problematic broken economies with respect to their future prospects, making this regional climb to ascendancy that much more remarkable.

 

Yet that does not mean that Nayyar overlooks the damage done to Asian countries by the colonial system as it operated between 1820 to 1962. On the contrary. He faults Myrdal for failing to take account of the pre-colonial past when Asia was so much more prominent in the world economy, which Nayyar believes partially explains why this great Swedish economist did not adequately foresee the Asian potential to achieve post-colonial affluence. The economic fall of Asia during colonial period was very sharp—“Between 1820 and 1962, the share of ‘the West’ in world income almost doubled from 37 per cent to 73 per cent, and the share of ‘the rest’ more than halved from 63 per cent to 27 per cent, of which the share of Asia plummeted from 57 per cent to 15 per cent.”[9] The dynamic that caused this to happen was rapid European industrialization that enabled the West to reshape  by coercion the international division of labor in its favor. In Nayyar’s words this new international economic order was “shaped by colonialism and imperialism through the development of mines and plantations.’[16] This dramatic shift resulted in the drastic ‘deindustrialization’ of Asia, which meant reversing the growth expectations of development, epitomized by a retreat from manufacturing to primary goods in the context of production and international trade.

 

Nayyar grounds his book by a look back in two distinct illuminating ways. First, he considers the standing of China and India, along with the rest of Asia, in the world economy through a period of two centuries, putting forth a dazzling array of statistics that probably will produce some major surprises for most readers, as they did for me, and especially for those who have not studied Asian economic history. In Nayyar’s words, “Until 1750, Asia accounted for almost three-fifths of the world population and world income, while China and India together accounted for about one-half of world population and world income. These two Asian giants also contributed 57 per cent of manufacturing production, and an even larger proportion of manufactured exports in the world.” [2] The most intriguing aspect of this critical assessment of Asian economic experience is that the result of the amazing economic surge is in one rather secondary sense unremarkable. For Asia in this past 50 years did nothing more than recover by 2016 or so its earlier relative global position with respect to population, shares of the world economy, and per capita living standard of its peoples. It is with this central reality in mind that explains Nayyar’s use of the word ‘resurgence’ rather than, say, ‘rise’ or ‘rise to ascendancy.’ At the same time, the differences between economic conditions in 1820, or for that matter, 1960, and the present are so dramatic for Asia in terms of experiencing the actual conditions of modernity, its technological advances and the great heightening of living standards, as to make it no exaggeration to consider the transformation of life in Asia from what it was to what it is as ‘the Asian miracle.’ Although much is left to be done throughout Asian-14, including dealing with large pockets of extreme poverty, especially in India, never have so many millions been lifted from the harsh clutches of extreme poverty in a few generations.

 

This rise of Asia has been accentuated by coinciding with the relative and absolute decline of the West. This puts Asia in a position to become the leading regional force shaping world politics for the next 20-25 years, taking over for the United States, which had taken over from Europe. It would be illuminating to have a study roughly parallel to this great book that looked at the collective experience of the West in a framework that also tracked the experience of a group of Western states, not necessarily 14, but a sufficient number to illustrate diversity amid unity.

 

One consequence of Nayyar’s regional approach is to lessen attention given to the impacts of these economic trends on the structure of geopolitics, and the character of geopolitical rivalry at the start of the colonial era, in the course of the 20th century, at present, and in the near future. What becomes evident is that in the 1800s the main geopolitical rivals were also the main colonial powers of Western Europe, especially after the Industrial Revolution gave European countries the military instruments to extend their economic reach over most of the rest of the planet. The only notable exception to this pattern, as Nayyar observes, was Japan that benefitted its generally successful resistance to colonialism and later from the modernization thrust of the Meiji Restoration of 1868. These developments allowed Japan to catch up with the West much earlier than the rest of Asia, a dynamic tragically reversed by the Japanese turn toward regional imperialism coupled with a disastrous challenge to Western geopolitical dominance in its region. Nayyar takes note of the fact that Japan pursued its own version of the Western path of combining industrialization at home with an imperialist foreign policy in Asia. Nayyar does not, however, go on to contrast the soft power dynamics of the contemporary Asian global outreach, which places an emphasis on win/win approaches to non-Western countries in Africa and Latin America coupled with non-reliance on the Western addictive dependence on coercive diplomacy, intervention, and military superiority. In this sense, Asian geopolitics are post-colonial in character, although as of 2020 beginning to mount tensions and even some pushback as nationalist outlooks show resentment toward soft power penetrations of sovereign space.

 

Of course, the regional framework is somewhat misleading if the focus shifts from development to geopolitics. Although Nayyar’s conjecture of rising Asian geopolitical leadership is couched in regional language, the real geopolitical rivalry is between the United States and China. It is here that the most notable feature of U.S. pre-Trump decline is the American squandering of its resources and reputation on a hard power approach to geopolitical leadership that involved a series of costly military misadventures (Vietnam, Afghanistan, Iraq, Iran), which in effect, represented a dysfunctional continuation of a colonial mentality, somewhat disguised by shows of formal respect for political independence and national sovereignty of other countries, yet confirmed by U.S. reliance on threats, sanctions, and covert and overt military interventions. By contrast, how many such misadventures can one identify in Chinese foreign policy? This is not to suggest that China is pacifist in spirit or substance. Its fierce border wars with Vietnam and India, its investment in defensive and deterrent military capabilities, as well as its repression of dissent at home and in Hong Kong, suggest that Beijing places values on military and other coercive capabilities to meet some challenges to its goals. Yet when it comes to its pursuit of ambitious geopolitical goals, reliance on military capabilities has played almost no role. China’s immensely ambitious ‘Road and Belt Project’ is emblematic of its approach that is at once expansionist and pacific.

 

What was true in pre-Trump geopolitics has become more pronounced during the Trump presidency. Trump has deliberately disengaged from cooperative international arrangements, weakened alliance leadership, invested heavily in American military dominance, and worried leaders throughout the world by his unsteady, impulsive, and high-risk diplomatic style. At the same time, there is a certain Trumpist geopolitical realignment taking place due to the rise of right-wing leaders in many important countries throughout the world. As a result, while the world is more interconnected than ever before and can only solve problems associated with climate change, digital crime, migration, and management of nuclear weaponry by geopolitical coordination and cooperative solutions, it lacks the capacity to do so. In effect, the U.S. has substantially relinquished its global leadership role, while China, which alone would have the credibility to take over, has not attempted to do so, at least not yet. World order without geopolitical leadership, a weak UN, and beset by a series of fundamental challenges of global scope is in crisis. There is no obvious solution at present. Nayyar’s economistic master work does not attempt to address this dimension of Asian ascendancy, and what he does is itself a. most impressive achievement. At the same time, such a foreshortening of analysis may account for what struck me as an overly optimistic reading of the Asian future even before the Coronavirus shakedown of conventional wisdom. By his definitive portrayal of the Asian development story Nayyar plausibly projects a relative trouble-free future for Asia, reinforced by expectations of continued Western decline, but he excludes from consideration the negative impacts almost sure to be felt in Asia if climate change is not properly addressed or if a major war between China and the United States occurs without even alluding to the current woes arising from the COVID-19 outbreak, which were not on the horizon of anybody’s consciousness before the pandemic unfolded long after his authorial role ended more than a year ago. I wonder if Nayyar will stick with his confidently projected future in an updated edition as described in the book’s final paragraph: “There can be little doubt that, circa 2050, a century after the end of colonial rule, Asia will account for more than one-half of world income, and home to more than one-half the people on earth. It will thus have a political and economic significance that it would have been difficult to imagine fifty years ago..” [234] My simplistic commentary: maybe, maybe not. I disagree with the historical or Asian regional judgment that “[o]n the whole, there is more reason for optimism than pessimism.” [233] I wonder here whether Nayyar is making the reverse of the mistake he persuasively attributes to Myrdal in explaining why his dark vision of Asia’s future turned out to be so wrong.

 

In illuminating contrast, the Western international relations literature is not very much interested in Asian development per se as it is in sorting out the countries by whether they seem friends or enemies, and most of all whether the rise of China will produce a heightened rivalry with the United States, generating a second Cold War, and risking a hot war. Samuel Huntington in his controversial Clash of Civilizations and the Remaking of World Order (2011), shifted his inter-civilizational emphasis from Islam to China, in the course of predicting such a war fought to establish global supremacy. More recently Graham Allison has generated debate and concern about what he names as the ‘Thucydides Trap’ in his Destined For War: Can America and China Escape the Thucydides Trap (2017). Allison argues that war has occurred on 12 of 16 occasions since 1500 in situations where a geopolitical leader perceives being overtaken by a rival, which is what currently seems to be happening in the relations between China and the United States. In Allison’s strong words, “The defining question about global order in the coming decades will be: can China and the United States escape the ‘Thucydides trap’?”

 

Nayyar writes as an expert economist with a masterful control of his chosen subject-matter. In this sense, his statistical underpinning is that of an analytically skilled professional economic historian, interpreting trends on the basis of measurable indicators. He avoids the more qualitative assessments of the rise of China with respect to peace and security in Asia associated with what might be roughly called ‘political economy’ approaches to economic growth and its political consequences. In this regard, while celebrating what Deepak Nayyar has achieved in Resurgent Asia it is also important to retain an awareness of the limitations of this approach, and the need for more politically focused assessments to get the full picture of this extraordinary Asian story.

 

A haunting question is whether the disappointing record of the Asian-14 with respect to political and civil rights is in any way necessarily linked to the extraordinary achievements in economic and social rights. A complementary question could be posed in relation to the more market-oriented Western countries as to whether a better performance with regard to social and economic rights could be achieved without impinging upon political rights. In this regard, as in many others, the Scandinavian and north European countries stand out for their high degree of achievement across the entire spectrum of human rights. A further issue, somewhat outside the orbit of human rights, relates to stewardship of the environment, given the scientific consensus on the growing menace of climate change.

 

Since the publication of Asian Resurgence the world has become preoccupied with COVIS-19 pandemic in ways that cast a variety of shadows across the economic future of the world. It is too soon to assess the impact of this pandemic, although not too early to understand that the spread of deadly diseases strongly confirms the benefits of a cooperative world order, and the harms resulting from transactional approaches to international relations that conceive of gains and losses from pragmatic nationalist perspectives with no deference to global concerns, whether functional as in responding to climate change and the Coronavirus or normative as in dealing with refugee and migrant flows or prolonged strife and oppressive governance. Whether we learn that the politics of global solidarity is the politics of species survival remains unknown, but the failure to do so will sooner or later doom the project of modernity of which the Asian ascent was one of its most notable moments of triumph.

 

It is also not to early to conclude that the eruption of the pandemic caused far higher harm because of failures of preparation, crisis management, and governmental oversight, strongly

supporting approaching vulnerabilities to uncertainties by a much more robust adherence to the Precautionary Principle. Leading modern governments to devote major resources so as to be prepared for the onset of wars, but little else, creating dangerous societal and global vulnerabilities to systemic challenges to health, wellbeing, decency, and ecological balance.

 

 

 

COVID-19: Present, Past, and Future

17 Mar

COVID-19: Present, Past, and Future

 

A few days ago when WHO officially declared the COVID-19 a ‘pandemic’ a Rubicon of consciousness and global governance was crossed. Hundreds of millions of individuals around the world are coping physically and mentally with what that word never before used in my lifetime means for themselves and those they care most about. The mental dimensions of self-isolation may turn out to be a big challenge almost as big as the disease itself. For once, government officials seem to be heeding the warning of health specialists rather than dutifully than scurrying about to address market signals of distress with public funds. At least this is the public face we see on our TV screens, although in Trump’s case even the appearances are mismanaged, considering the corporate smirk at his Rose Garden press conference when several CEOs pf prominent companies received better free PR that not even their most energetic publicist ever imagined attainable. There is a silver lining: if the American elections are actually held in November, we should see the fall of Trump, and as importantly, the end of Trumpism, that is, unless there is a quicker return to normalcy than now seems possible. Although one thing we might learn from how our lives changed overnight is to stop trying to outguess the future. Economists and future studies consultants may have their super-sophisticated models and graphs, but some of the most significant surges of history have a will of their own that often makes the most mathematically advanced computer models seem out of touch with transformative social forces that remain hidden until a shockingly unexpected eruption occurs.

 

If nothing else, COVID-19 reminds us of the perils and possible promise of radical uncertainty. As this mysterious deadly mutation of the Coronavirus suggests, our powers of anticipation are not much more impressive than those of our brothers and sisters in the jungle, and I am referring mainly not to tribal peoples looking up at the sky for signs of what is to come, but also of elephants and lions roaming freely on the savannas and grasslands of the world, yet suffering mass killings when wild fires rage out of control. What this uncertainty mandates above all else is preparedness and the acceptance as a matter of urgency of the Precautionary Principle as the long overdue Eleventh Commandment of our civilization. The Precautionary Principle should guide us to take steps to avoid known thresholds of irreversibility or curves of rising risks. The message is this.  Don’t wait until the predictable crisis is at hand, and don’t build on or near the known fault lines of the planet.

 

COVID-19 also suggests something else that is both instructive and worrisome. We as a species react to crises when their impact is immediate and lethal, and sometimes compensate for earlier complacency by over-reacting when widespread fear spirals out of control to produce panic, and in the process lurid memories of past failures are dredged from the depths of collective consciousness. The Spanish Flu Epidemic of 1918-19 is a current example of a past event I never heard discussed during my childhood, or throughout my adult life, but now is on the lips of many. While still a child this earlier flu pandemic was almost as recent then as the 9/11 attacks are now. We forget quickly past urgencies until replaced by new urgencies.

 

Another lesson here is that we cannot afford to treat climate change as we are treating this pandemic. Once the concreteness of climate change is revealed so that none can plausibly deny, or escape, or turn away from what happens at a distance, or be explained away as an anomaly of nature, or a danger that technology will address before the great collapse will occur, it will be probably too late to halt the downward trend.  For now, despite the fires, floods, and droughts the sky above remains as blue as ever in most places, the stock market showed no abiding concern about global warming, and the whole societal ecosystem lurches forward, producing the latest digital device and AI advance, without blinking. Even Brazil and Australia, scenes of catastrophic fires, seem to view these occurrences as one-time events that should not in the first instance interfere with neither sovereign rights nor with profit-making deforestation and cattle ranching, and in the second, with expanding coal production and exports. The short-termism of how we live our ordinary lives and how political leaders and corporate moguls are judged, makes it difficult to combine democracy and accommodating the global and the long-term, especially if its destructive impact can be imagined as always occurring to others far away or in the distant future. When we read of the ordeal of those living in prolonged subsistence confinement in Gaza or in the misery of refugee camps and border assaults, we may lament the news, and even sign petitions and make donations, but our nighttime sleep is rarely interrupted the way it would be if a next door neighbor or a loved one was so severely infected by the virus as to be carried off to a hospital, hopefully one with enough beds and ventilators, which in a matter of weeks might itself become a vain hope for many older infected people.

 

COVID-19 also further tears at the fabric of democratic governance. Israel reveals that it has elaborate secret files for the surveillance of all mobile phone users in the country, supposedly to help with counterterrorist efforts, but now to be used in identifying, locating, and confining those believed to be infected or having had recent contact with carriers of the disease. When Orwell imagined a tormenting Big Brother, it was read as an indictment of totalitarian systems of governance, specifically the Soviet Union, or at most a warning of a world in the making, an imagined dystopia that would hopefully never become actual. What the imagination could only worry about the technologists have now achieved. Are we safer, more secure and content when all of us have become suspects and our lives transparencies subject to the discretion of unaccountable bureaucrats?

 

As with the delusions of the militarist, excessive investments in weapons brings insecurity, not enhanced security. America is the best example in all of history. While our military arsenals grow, we shackle ourselves with more and more restrictions on our freedoms, which has been translated by our minder into electronic monitoring, long lines, and countless hidden cameras. Instead of improving lives by investing in social betterment through health, education, culture, parks and natural preserves, we spend public monies collecting meta-data and insist on a military capability that is dominant globally, able to strike catastrophic blows anywhere on the face of the earth from land, air, and sea platforms, and even from space. China, with all its imperfections, demonstrates to the world that the way to gain power, prestige, and influence is to manage clever fusions of state and market, taking advantage of soft power opportunities wherever they are found. By way of contrast, America is demonstrating that the way to lose power, prestige, and influence is to rely on geopolitical muscle through threat and coercive diplomacy, sanctions, and intervention. The result has been repeated frustration by striking its blows in dead end misadventures, yet learning nothing from each failure because the whole edifice is militarized, paralyzing the moral and political imagination, and the high-priced gurus offer tactical adjustments that misinterpret past failures, and thus prepare the way for new failures..

 

The democratic fabric of many countries was fraying badly long before COVID-19 added to the wear and tear. The end of the Cold War brought with it the expectation that the material and political benefits of democratic forms of governance would become so obvious to everyone as to produce a global tsunami of democratization, and to some extent it did during the 1990s. Bill Clinton spoke of ‘enlargement’ by which he meant that more capitalist democracies would emerge, and that this would be good for both economic prosperity and world peace as democracies do not make war on one another, especially when trade and investment are robust. Then came 9/11, the counterrevolutionary moves after the Arab Spring that caused severe civil strife and mass displacement, refugees and asylum seekers, ultra-nationalist reactions to neoliberalism, and now COVID-19 comes along. A mixture of alienation, scapegoating, and identity politics gave rise to the still bewildering phenomenon of societies freely electing, and even reelecting, autocratic demagogues that take away basic liberties without disguising their acts or intentions. A leader as regressive from the perspective of democratic values as Rodrigo Duterte enjoys an 80% approval rating in The Phillippines despite being responsible for as many as 20,000 extra-judicial executions, as well as numerous flagrant violations of human rights standards and disregard  of constitutional limitations on the exercise of state power. Modi remains popular in India despite his crude and cruel encroachment on the autonomy of Kashmir coupled with inflaming attitudes toward the large Muslim minority.

 

It is to be expected that there are no real democracies during wartime or in the midst of crises that give governments, regardless of ideology, a free hand to do whatever they proclaim as helpful in the name of national security, and now public health. During World War II the United States Government interned its West Coast Japanese minority without the slightest attempt to proceed in accord with the rule of law or even due process, and yet a majority of the U.S. Supreme Court had no trouble upholding this repressive undertaking as a reasonable security precaution given wartime apprehensions of disloyalty among Japanese citizens and residents. At least, the decision was controversial at the time, and there were dissenting opinions in the high court. Later on official apologies followed, especially 25 years after the end of the war when wartime fevers had dissipated. Now the U.S. government seeks to expel rather than intern, to keep the poor and unwanted out whether by erecting walls or imposing anti-Muslim bans and the like. Instead of global democratization, the recent international experience has been one of the previously unforeseen popularity of radical forms of de-democratization, proliferating ultra-nationalist outlooks, and the erosion of respect for the UN, international law, and global cooperation when such instruments of good order are more needed than ever. Also present in this anti-democratic ‘perfect storm’ is the penchant for undermining independent journalism and academic freedom, banishing free expression of ideas to private conversations among dissidents.

 

The cumulative effect of these political tendencies to weaken trust, and even draw the possibility of truth into question, making governance into a series of opportunistic fabrications. When scientifically backed opinions and unwelcome evidence can be dismissed as ‘hoaxes’ and ‘fake news,’ we no longer know what to believe, and most of all view skeptically what the government and its leaders tell us. Democracies depend for their legitimacy and effectiveness on trust as well as an atmosphere of normalcy, and when neither exists, there is confusion and chaos, and demagogues comes forth with self-confident and often malicious propaganda that is swallowed whole by large sectors of the population, however divorced from reality is the promise of rescue. One transcription of the message is this: making America ‘great’ again is being achieved at the price of inducing planetary collapse. This is the dark logic of our time that needs to be countered by a dialectic of resistance and transformation.

 

Interestingly, COVID has temporarily restored the stature and influence of the expert, at least for this current state of emergency. Can you imagine a future Trump press conference on climate change featuring the head of the Sierra Club, Environmental Defense Fund, and having Greta Thunberg share the platform with the experts. However absurd such a. musing, this  seems more or less how the American president seeks now  to reassure the public that despite some early stumbles, citizens can now have confidence that everything recommended by the best experts is being done to minimize the harm resulting from the global virus. Trump no longer appears in front of the TV cameras and assembled journalists as the preeminent know-everything leader. Instead he is flanked by health experts, corporate managers, and cabinet member to whom he regularly defers whenever a question by a journalist raises a technical issue. In this ironic turn, the supreme leader has become the novice, and hopefully will soon receive a pink slip of the kind he so gleefully issued while weekly performing on The Apprentice.

 

Of course, experts have their limits as well, and relying on the authority of the measurable is not a humane path to the future. Ethical sensitivity, especially empathy, is more important than following the evidence as interpreted by many experts, who are often hiding their own questionable policy agendas or career ambitions behind a flurry of numbers and graphs. So somewhere between banishing reality as fake news and worshipping the dapper expert as our supreme guide we need to find the courage, wisdom, and humility to reach difficult decisions that move humanity forward. Yet we are a long way from generating the political choices that include such constructive voices. So far what opposes the entrenched autocrat seems an improvement worth supporting, but It doesn’t even pretend to transform the system.

 

Without overdoing it, the real lessons to be learned are well depicted in a fine essay by Bruce Franklin, an admired friend and long one of the most perceptive and humane interpreters of the political scene, whose virtues have unfortunately automatically relegated him to the outer margins of public awareness. His piece, https://www.counterpunch.org/2020/03/13/what-is-covid-19-trying-to-teach-us/  stresses the idea that continuing to rely on state-centric world order and transactional geopolitics is to choose a doomsday destiny not only for country, but for the human species. If we cannot learn from the COVID-19 experience of our dependence on global cooperation, and a win/win approach to global problem-solving, the human species is far along on bio-ecological death march. As Franklin makes clear, in responding positively to a pandemic we help ourselves by helping other, and we hurt ourselves when we refuse to do so. His crucial point is that climate change, extreme poverty, biodiversity, global migration, nuclear disarmament, demilitarization are essentially the same: challenges of global scope that will not be resolved except by global win/win responses on a comparable scale.

 

 

Cruelty or Humanity?

12 Mar

[Prefatory Note: Posted below is my foreword to Stuart Rees’ exceedingly important study of the role of cruelty to in politics, a mystifying dimension of human experience, which is illuminated by integrating the insights and reflections of poets with the narration of political poliices. This fusion gives this book a quality of originality as well of practical relevance.]

 

 

Richard Falk, Foreword, Stuart Rees, Cruelty or Humanity: Challenges, Opportunities and Responsibilities, Bristol, UK: Policy Press, forthcoming 2020.

 

 

We are living in an anguishing historical period. From one direction come dire warnings about  human future if the challenges posed by climate change and ecological instability are not addressed within a rather tiny window of less than twelve years. From another direction come depressing indications that peoples around the world are choosing by their own free will, extremist autocrats, even demagogues, who are extinguishing fires of freedom, building walls to keep the unwanted out, and stigmatizing the stranger. In such an atmosphere, human rights are in retreat, empathy for the suffering of others is repudiated, international law is all but forgotten in the annals of diplomacy, and the United Nations is often reduced to the bickering of irresponsible governments seeking nothing grander than maximum national advantage, and in the process, let the common public good of humanity be damned. Facing such reality with eyes wide open is a challenge that few acknowledge, and even fewer have the stamina, insight, compassion, wisdom, and imagination needed to discern a brighter alternative future for humanity.

 

Stuart Rees is such an exception. His Cruelty or Humanity has the courage to portray reality in all its degrading ugliness without taking refuge in some specious bromide. His book addresses the range of cruelties that befall those most vulnerable among us in myriad specific circumstances. With an astonishing command over the global and historical landscapes of cruelty, Rees leads us through the wilderness of the most evil happenings, which have been enacted individually and collectively. And yet through it all he manages to guide us toward the light of hope without indulging sentimentality or embracing false optimism.

 

What gives this perilous journey its defining originality is the degree to which Rees brings to bear the knowledge and timeless wisdom of poets both to depict the intensities of the darkness but also to instruct readers that the disciplined and lyrical insight of a poet can better than the rest of us find shafts of light that illuminate paths leading to empowerment, transcendence, and liberation. Rees has actually written two parallel interacting texts brought together in a single fully coherent book: on one side, a fearless and comprehensive reportage of the facts and figures of human cruelty in many distinct settings of place and circumstance, stressing the plight of those most victimized, ranging from asylum-seekers to indigenous peoples tortured in their homelands, and extending to the horrifying torments endured by animals and a variety of thoughtless encroachments on our natural surroundings; on the other side, this depressing litany of cruelties inflicted on masses of people is simultaneously refracted through prisms of light offered by a multitude of poets who share the agony while intoning the most vital truth of all, that hope is not futile, that human society has dreams, aspirations, and untested anthropological potentialities. Rees shares with readers extracts from dozens of world famous, and relatively unknown poets, in this parallel form of narrative that interacts with the gory reportage of cruelty to offer a creative tension between entrenched evil and its transcendence.

 

Rees’ undisguised autobiographical engagement with this inquiry gives Cruelty or Humanity a quality of urgency and sincerity that it would not possess if confined to the scholarly canons of ethical and political detachment. The fact that Rees cares so deeply about choosing humanity over cruelty is evident on almost every page. He conveys his concerns without ever diluting the profound difficulties of overcoming the evil being done by humans, mainly men, to others stigmatized and rendered inferior, punitively instrumentalized to serve ambitions, manipulate fears, and satisfy sadistic urges of those in power.

 

In personalizing his immersion in this difficult subject-matter Rees’ residence in Australia becomes evident in the manner he treats the severe cruelties over centuries inflicted on the original natives of the land, and currently reproduced in the manner that Australian asylum-seekers have been sequestered in an isolated island and often driven to suicidal desperation, a horror show that is mostly hidden from the world, but shocking when disclosed in all its ferocity. It casts doubt on the ritualized apologies that some liberal Australian politicians offer to the aboriginal people and their forebears for past wrongdoing. As a leader of Palestinian solidarity efforts in Australia, the cruelties of Israel toward the Palestinian people receive deserved attention from Rees in depicting the cartography of cruelty.

 

Rees advances a strong case for the positive side of the human condition, resting on the rock of shared humanity. He quotes these arresting lines from Maya Angelou, which really captures the essence of his ethical message:

                                    “In minor ways we differ

                                      In major ways we’re the same.”

The political implication of this affirmation is a strong embrace of the spirit and substance of equality, which implies a rejection of hierarchy, as well as making positive use of the interplay between the unity of humanity and the many differences evident in the way individuals and collectivities choose to live. Another poet, William Stafford, is quoted approvingly in words intended to repudiate hierarchy and its companion, stigmatization of ‘the other’ deemed inferior:

                                    “I can’t eat that bread.”

 

In the end, Rees manages to nurture hope, which he rests on what might be best identified as ‘the transformation-to-come.’ This radical departure from the present will be recognizable only when political leaders begin to articulate their programs and policies in what Rees calls ‘the language of common humanity.’ Of course, a humanistic worldview naturally follows such a linguistic trope. It draws its normative direction from existing traditions of international human rights, international law, and a rising respect for nature. Whether such an axial moment, if and when it comes, can be operationalized in the form of humane patterns of governance will be the ultimate test of whether equality can become a way of life for the human species as well as an uplifting slogan.

 

In the end, we should be thankful to Stuart Rees for providing us with such an inspiring reading experience, which contains within it a roadmap that could help humanity escape from the species eco-ethical slide toward extinction. This will only happen if enough of us are responsive enough to Rees’ damning diagnosis of the present and then heed his liberating prescriptions for the future.

 

 

Richard Falk

Santa Barbara, California  

Dumping Sanders: A Provocation

6 Mar

Dumping Sanders: A Provocation

 

I suppose it was all over after the Biden blowout victory in South Carolina, inducing the leading remaining ‘never Sanders’ moderates, Buttigieg and Klobuchar, to drop out of the race for the Democratic Party nomination. Biden’s dominance on Super Tuesday sealed the deal, and adding one more to his extravagant array of futile gestures, Bloomberg could withdraw with satisfaction as his anti-Sanders dirty work had been completed by others. It now seems like there will be no brokered Democrat Convention in Milwaukee, as Biden is almost certain to earn majority support well before the opening gavel is pounded, avoiding the embarrassment of handing the Sanders’ assassination dagger to the superdelegates. Wall Street emitted a giant sigh of relief registering a gain of more than 800 points on the Dow, and even forgetting about COVID-19, at least, for an interval of 24 hours.

 

The evasive rationalization by many faux moderates is that the swing toward Biden was based on electability, and as Bloomberg explained, Biden had ‘the best shot’ to beat Trump. Never a word about those polls that gave Sanders the nod in the November faceoff. For those more sophisticated, who realized that the electability issue was cloudy and that Biden seemed at best the winner of a race to the bottom, stress a shift to governability concerns, that is, even if Sanders were to push Trump off his throne, he would be stymied once he arrived at the White House, never able to get anything done for the American people, as he supposedly would remain an alien outsider even for Democrats. Ultra-establishment stalwarts like Tom Friedman, whose unsurprising first choice for the nomination was the stop-and-frisk billionaire, painted a grotesque picture of Sanders being so slaughtered by a Trump landslide that all branches of government, including both houses of Congress, would be under the thumb of a reelected Trump, which while not as bad for such ‘thinkers’ as the prospect of a Sanders’ presidency, is to be avoided if at all possible. If that is not enough, Americans were reminded over and over again that the last time the Democrats nominated as an outsider, George McGovern, he was crushed by a consummate insider, Richard Nixon, who unlike Trump slid off the impeachment block by resigning, not trusting a more conscientious Senate to let him stay in the Oval Office he did so much to discredit.

 

Sanders is a threat, not only to portfolio (stocks & bonds) Democrats, but also to the super-glue that has manged this three-pillar foreign policy consensus that has held up through many international twists and turns ever since 1945. To the surprise of many insiders it did not lose much ground during four years of Trump’s disruptive and narcissistic style of leadership, and with Sanders all but beaten, its adherents in and out of government can again breathe easily regardless of who wins in November. Trump was barely tolerated at first but became tolerable in the end, including to most denizens of the deep state, because in his own idiosyncratic tweeting style he upheld the three pillars. Indeed, if considered closely, Trump even added to their ideological hegemony and policy realization: he celebrated and strengthened the military without wasting lives and trillions in failed wars; his policies propelled the stock market to record highs, while keeping employment high while lowering taxes on the rich; and he pushed Israel’s maximal agenda to a point that probably exceeded Sheldon Adelson’s wildest dreams, confronting Palestinians with a surrender ultimatum, while giving Netanyahu at least as much as he sought on a series of sensitive issues. What worry about Trump lingers along the corridors of power is no longer about ideology, but about fears that his personality disorders might one day erupt with catastrophic fury. There are genuine secondary concerns about Trump held especially by more traditional Republicans, including his dog whistles to white racists, contempt for NATO, loving embraces of brutal autocrats, Iran warmongering, wall-building, cutting to the bone benefits to the poor, along with the most wretched Supreme Court appointments of all time. This is what makes portfolio Democrats more or less comfortable with Biden as an alternative to Trump. Most such Democrats, along with the Party establishment, sincerely believe it crucial to rid of Trump as his craziness might any day turn apocalyptic. While Trump represents the worst of America, he turns out for a plurality of the citizenry to be not as bad after all as Sanders confirming that class and portfolio issues are the bottom line with electorate, with a bit of demagoguery thrown in to please the alienated underclass.

 And what of Sanders who wants health care and education to be treated as public goods, who favors cuts in the military budget, and might create programs that would produce inflation, deficits, and higher taxes for the rich? Is the progressive populist base strong and disciplined enough to get the job done? It doesn’t seem so, although for most Americans Sanders’ policies would be highly beneficial, and well worth operationalizing, although it would somewhat weaken each of the three pillars. If today’s view holds, as now seems a near certainty, darkness will descend even assuming, what is far from assured, that Biden will win on Election Day. Even Biden’s most reluctant supporters do not feel that way. They are mostly cheered by the fact that Biden is not Trump. Beyond this, many feel confident Biden can steer the American ship of state toward calmer waters while making them comfortable by reenchanting the bipartisan worldview that Trump also affirmed, but without his diversionary and unconstitutional pyrotechnics. And if Biden should fall to Trump next November, there will be regrets and there will be many moans and tears among portfolio Democrats, but no tears will be shed on behalf of Sanders even if the evidence demonstrates that he would likel have been a stronger candidate than Biden. Quite the contrary. Blame for Biden’s defeat will angrily focus on die hard Sanders supporters who stayed home rather than vote or had the banal audacity to exercise their democratic prerogative by voting for a third party candidate.

 

The media labels for the various candidates accentuate the distorted mainstream dialogue. The Democratic primary struggle was not really between moderates and progressives, at least when it comes to foreign policy. There is no moderation among the ‘moderates,’ and Sanders was the only true moderate. His positions while threatening to the guardians of the three pillars really advocated rather mild reforms—small cuts in the military, modest tax increases on the richest among us, and some small moves toward balancing partisanship on Israel/Palestine with calls for accountability by Israel and empathy for Palestine. This is not the stuff of revolution. It strikes me as a truly moderate reformist agenda, and even Sanders’ domestic agenda, which is indeed progressive, is in the spirit of Scandinavian democratic socialism, light years away from the Soviet model of socialism, much less a communist state.

 

And as for Trump, he does project as immoderate worldview, but more as a matter of style than substance. His domestic policies seem mean-spirited and divisive, while his foreign policy seems somewhat innovative, casting China in the role that Bidenites would assign mainly to Russia. Both Biden and Trump seem to see the world through a geopolitical lens that stresses hard power rivalries among principal states, putting the 9/11 counterterrorist preoccupation to one side, although this could change quickly with one large incident. Biden might be slightly more internationalist that Trump, but I would be astounded if he would do anything as provocative (and appropriate) as moving the American Embassy now in Jerusalem back to Tel Aviv, an act that would show both policy discontinuity with the Trump presidency and respect for the UN consensus.  

 

Those critics who bemoan living in a choiceless democracy, best conceived as a plutocracy, will feel vindicated, while pragmatic liberals who are either content with the three pillars or only give attention to the domestic agenda will also feel encouraged if Biden prevails although possibly expressing slight disappointment that Sanders and Warren were so abruptly swept aside. I will be surprised if there is solidarity on the more progressive side, which would have meant an earlier withdrawal by Warren coupled with a strong endorsement of Sanders. Given what has happened in recent days, I expect Warren to play her remaining cards astutely, which would mean withholding any endorsement of Biden while campaigning hard against Trump and treating Sanders as a lost cause by not endorsing his candidacy, and thereby keeping her future options open by signaling a willingness to accommodate the DNC and the Democratic Party Establishment.