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UN Report on War Crimes during Israel’s 51 Day Assault on Gaza

6 Jul

 

 

Exactly a year ago, for 51 days between July 7 and August 26 Israel carried out its third major military assault (2008-09; 2012; 2014) on Gaza in the past six years. This last one, code named Operation Protective Edge by Israeli Defense Forces, was the most vicious, killing 2,251 Palestinians, of which 1,462 were civilians, and included 299 women and 551 children, as well as injuring 11,231, a number that includes 3,436 children, 10% of whom have permanent disabilities, and another 1,500 have been orphaned. Israel also suffered casualties: 73 killed of whom 67 were military personnel, and 1,600 injured. Additional to the human casualties, 18,000 Palestinian housing units were destroyed, along with substantial damage to Gaza’s electricity and sanitation systems, 500, 000 Palestinians (almost 1/3 of Gaza’s population) were forcibly displaced during the military operations and 100,000 remain so a year later, and 73 medical facilities and ambulances were destroyed or damaged. Due to the Israeli blockade, the aftermath of this onslaught has prevented a normal recovery, extending the period of suffering endured by the entire Gazan population. The magnitude of the Palestinian losses, as well as the comparison with Israeli losses, and the comparative ratio of civilians to military killed on the two sides, by itself suggests that the essential character of this Israeli undertaking is best understood as ‘state terror’ directed at Gaza’s population as a whole. Such conclusions are reinforced by Israel’s provocations during the month prior to the launch of the attack and by the refusal of its government even to consider frequent proposals by Hamas to establish long-term internationally supervised ceasefire proposals.

 

This one-sided impression of the events is not conveyed by the much anticipated UN Report of the Commission of Inquiry (COI) set up by the Human Rights Council to investigate violations of international human rights and international humanitarian law in July of 2014 that were occurring during Operation Protective Edge. The Commission was originally chaired by William Schabas, a leading world expert of international criminal law, but he resigned under pressure effectively mounted by Israel and the United States, centering on the discovery that Schabas has accepting a small consulting fee for some professional advice given to the Palestinian Liberation Organization a few years earlier. This unhappy development left the commission with only two members, Mary McGowan Davis from the United States and Doudou Déne from Senegal, with Judge McGowan being named as chair. Neither is considered expert in relation to the subject matter being investigated.

 

Balance amid Imbalance

 

The report strives for ‘balance’ carefully setting off violations by Israel against those of what it calls ‘Palestinian armed groups’ creating a profoundly false sense on the part readers as to equivalent responsibility for wrongful behavior by both Israel and Palestine. I agree with Ali Abunimah’s carefully formulated explanation for this misleading approach taken in the report and the deeper message being conveyed: “Despite the ‘balanced’ language that is now the habitual refuge of international officials hoping to avoid false accusations of anti-Israel bias, the evidence shows the scale and impact of Israel’s violence dwarfs anything allegedly done by Palestinians.” [See Ali Abunimah, “’Balance’ in UN Gaza Report can’t hide massive Israeli War Crimes,” Electronic Intifada, 22 June 2015] Or as the widely respected international NGO, BADIL, expresses a similar reaction: “In the language employed, there appears a desire to portray the adversaries as being on an equal footing, despite this being patently untrue, as revealed in the vast disparity in respective casualties and destructive capabilities…attempts to portray ‘balance’ where there is none is extremely problematic.” Typical of the imbalanced balance, the Report observes that “Palestinian and Israeli children were savagely affected by the events,” [§25] which is accurate in a literal sense, but a gross example of treating unequals equally, given the far greater severity of suffering endured by Palestinian children.

Looking for a glimmer of silver lining, some have endorsed this framing device of balance as justified to so as to persuade the mainstream media in the West, and especially the United States, to view the contents of the report more seriously as it cannot be dismissed simply by being called anti-Israeli, or worse, anti-Semitic.

 

As Abunimah emphasizes there is this strange mismatch between the strong evidence of Israeli disregard of legal constraints on military tactics that unduly imperil civilians and this rhetoric of balance, which in effect, assigns blame to both sides. This is not to argue that the criminality of resistance tactics employed by Hamas and associated military groups in Gaza should be entirely ignored, but rather that the primary human impact of Protective Edge was to leave Gaza bleeding and devastated, while Israel endured minimal damage and dramatically less destructive impacts on its societal order. Israeli damage was repaired almost immediately. In contrast, Israel’s refusal to allow ample reconstructions materials to enter has left substantial parts of Gaza in ruins, with many Gazans continuing to lack adequate shelter, remain homeless, displaced, and understandably traumatized.

 

 

 

 

Civilian Focus

 

Despite what might appear to be overly cautious language, a fair reading of the report supports three important conclusions:

  • that Israel’s supposed efforts to protect the civilian population of Gaza were grossly inadequate from the perspective of international humanitarian law, and probably constituted war crimes; and
  • that the military tactics employed by Israel on the battlefield were “reflective of broader policy, approved at least tacitly by decision-makers at the highest level of Government of Israel.”
  • that the focus was on the civilian victims rather than on a bland acceptance of arguments premised on ‘military necessity’ or ‘asymmetric warfare’: in the words of the report, “The commission considered that the victims and their human rights were at the core of its mandate.”

Such findings, coupled with the detailed evidence set forth in the body of the report, provide the International Criminal Court with a strong, if indirect, mandate to proceed further with its preliminary investigation of Israeli criminality in the Gaza War. Palestine is reinforcing this momentum by submitting its own body of evidence to back up allegations of Israeli criminality related to Protective Edge. The Commission makes clear that it is relying, as is customary for non-judicial inquiries of this sort, on a ‘reasonable grounds’ test of potential criminality [§11], which is not as rigorous as would be applied in an ICC trial of accused individuals where the test is often formulated “as guilty beyond reasonable doubt” or some wording to that effect.

 

The Report makes no pretension of making a professional determination as to whether criminal prosecution should follow from its findings, although in its Recommendations section it does urge both the ICC and national courts relying on Universal Jurisdiction to move forward with indictments and prosecutions if the apparent criminality of either side’s conduct is confirmed by further investigation. The ICC had already begun an investigation of its own in response to a Palestinian request after Palestine became a party to the Rome Treaty that provides the authoritative framework for addressing alleged international crimes at an international level. Whether the ICC can bring any perpetrators of Israel’s criminal policies to justice is extremely doubtful as Israel, a non-member, is certain to denounce the effort and the institution and refuse all forms of cooperation; it is relevant also to note that the ICC is not permitted to hold trials without the presence in the courtroom of those accused. Nevertheless, even the prospect of indictments and arrest warrants is itself a strong challenge to Israel’s approach to Gaza, and to the Palestinians generally, and it will further strengthen the BDS Campaign, as well as the wider global solidarity movement that rests on the delegitimizing of Israel’s policies and practices. It will also inhibit travel of Israeli political and military leaders to those countries that empower national courts to exercise universal jurisdiction in relation to well-evidenced allegations of violations of international criminal law.

 

Context

 

There are some definite positive elements in the Report beyond these general conclusions worth mentioning. Unlike prior assessments, including the Goldstone Report of 2009 dealing with Operation Cast Lead, the attack on Gaza that began on December 27, 2008, this new report specifies the context by referring to the Israeli blockade of Gaza as imposing “a continuing collective penalty against the population of Gaza,” [§15]. The Report fails to take the next logical step of identifying this penalty as a flagrant violation of Article 33 of the Fourth Geneva Convention that unconditionally prohibits any collective punishment, and hence is a continuing crime against humanity. Helpfully, though, the Report does say that “the impact of hostilities cannot be assessed separately from the blockade imposed by Israel.” This view is appropriately reinforced with the significant call for “a full and immediate lifting of the blockade,” [§24] although the relevance of the blockade is not stressed in the COI analysis of the combat tactics relied upon by both sides, which suffers from its resolve to appear ‘balanced.’

 

The Report also took innovative account of the fact that the Palestinians were suffering from ‘protracted occupation’ and that there was absent any prospect of peace between Israel and Palestine. [§14ff] Acknowledging that this defining reality has some bearing on the reasonableness of resistance tactics, and should be treated as relevant when assessing the severity of violations. In contrast, Israel as the occupier that has long not only failed to implement, but actively subverted, the unanimous Security Council injunction to withdraw from territory occupied in 1967, should be held to higher standards of compliance with international law by the UN. In the end, the incendiary question posed indirectly is “What are the Palestinians expected to do by way of resistance, considering that they lack precision weaponry and have long been victimized by a prolonged occupation that is oppressive and exploitative, and shows no sign of ending anytime soon?’

 

These contextual factors are also affected by a diplomatic context in which Israel insists on treating Hamas as a terrorist entity, despite the fact that Hamas has been offering long-term proposals for peaceful coexistence supervised by an international presence ever since it decided to pursue a political track to liberation when it participated successfully in 2006 elections in Gaza and the West Bank and effectively abandoned armed struggle, including suicide bombing, as its approach to liberation. Such a potential diplomatic path to Israeli security is not mentioned in the Report, or its legal correlative, that since World War II, recourse to war is legally valid only as a last resort even where legal claims of self-defense are well-grounded. In this regard, Israel’s refusal to explore a diplomatic alternative to war casts doubts on its claim to be acting in necessary self-defense. This diplomatic option for Israeli security should have been discussed in the Report even if it could not be definitively proven to exist. Also, not discussed, is whether given stage-setting Israeli anti-Hamas provocations in the West Bank, which are set forth in the Report, along with the absence of any substantial damage from Gaza rockets fired at Israel, the legal conditions for a claim of self-defense existed given the seeming absence of a prior armed attack as required by Article 51 of the UN Charter.

 

The Report relies on a methodology based on a reasonable interpretation of customary international law articulated by reference to three principles: of distinction (limiting attacks to discrete military targets) ; of proportionality (avoiding uses of force disproportionate to the value of the target); of precaution (taking reasonable measures to avoid civilian death and destruction). [§13] It is evident to the COI that Palestinian missiles, inaccurate and directed toward Israeli population centers, violate the principle of distinction even if they do little damage as do Israeli strikes directed at densely populated residential neighborhoods that inflict massive damage. For instance, the Report condemns the Israeli use of massive firepower against Rafah and Shuja’iya “in utter disregard of its devastating impact on the civilian population.” [§58] Although the Report finds that the use of human shields by either side is a violation of the laws of war, it fails to find sufficient evidence to reach any firm conclusion.

 

Recommendations

 

In the conclusions and recommendations of the Report there are various calls made for greater vigilance in following through, arguing that imposing accountability for violations of international criminal law is relevant to avoiding a repetition of the Protective Edge experience. In this spirit the Report indicates that the victims, in particular, stressed examining “the root causes of the conflict” as an essential step toward future. [§75] There was also a determined emphasis placed on overcoming impunity with respect to such crimes, and in particular, “Israel must break with its lamentable record in holding wrongdoers responsible.” [§76] There is also a specific call to support the work of the ICC, and for Israel to accede to the Rome Treaty that controls the operation of the ICC.[§86(e); 89(d)]

 

The recommendations that are most relevant are set forth in §86(d):

 

“To address structural issues that fuel the conflict and have a negative impact on a wide range of human rights, including the right to self-determination; in particular, to lift, immediately and unconditionally, the blockade on Gaza; to cease all settlement-related activity, including the transfer of Israel’s own population to the occupied territory; and to implement the advisory opinion rendered on 9 July 2004 by the International Court of Justice on the legal consequences of the construction of a wall in the Occupied Palestinian Territory.”

This enumeration is a departure from the tone and substance of balance, and calls upon Israel to bring its behaviour as Occupier into conformity with international humanitarian law. It refrains from mandating the dismantling of the unlawful settlements, but otherwise goes quite far in relation to human rights, including self-determination, settlement expansion, and the wall to address the most fundamental Palestinian grievances.

 

 

 

Conclusion

 

As might have been anticipated, despite the balance of the Report, it was attacked as biased even before being made public by Israel and the United States, and its presentation in an open debate at the Human Rights Council was boycotted. Israel went further, issued extensive report prepared under the aegis of the Israel Defense Forces that exonerated Israel on all counts. [Special Report, ‘Operation Protective Edge,’ Israel Defense Forces, June 2015; “The 2014 Gaza Conflict: Factual and Legal Aspects,” Israel’s Ministry of Foreign Affairs, June 2015] It also invited a group of ‘high-level’ military officers and diplomats to review the allegations, which also vindicated Israel’s claims in its consensus report. [“Key Preliminary Findings of the High Level International Military Group on the Gaza Conflict,” June 12, 2015, UN Watch home page] In effect, the familiar battle lines are drawn at inter-governmental levels, making it clear that nothing can be expected to flow from this Report beyond a further recognition that if the Palestinian struggle is to advance at this stage it will depend on the activism of civil society rather than on the policies of governments or the implementation of the Report’s recommendations by the United Nations.

At the same time, as with the earlier Goldstone Report, it is important that this COI fully documented the essential charges with elaborate evidence, and legitimates the coercive tactics of Palestinian resistance and the nonviolent militancy of the global solidarity movement. As the COI noted, Israel again refused cooperation with the investigative efforts from their outset. The political weight of the Report is augmented by the fact that its findings and recommendation were formally received with approval by a vote of 41-1 in the Human Rights Council.

As could be anticipated, the United States was the lone member of the HRC that refused support to the Report. Even Europe, voting as a unit, gave its positive endorsement. Human Rights Watch made the following observation: “The lack of support by the United States—the only state to vote against shows a disappointing unwillingness to challenge impunity for serious crimes during the Gaza conflict and to stand up for the victims of war crimes during the conflict.”

 

It is sad that despite the abusive attitudes exhibited by the Netanyahu government toward the Obama presidency there is no willingness on the part of Washington to back international criminal law in such circumstances of gross violation. When the United States Government, still the world’s most influential political actor, gives such precedence to the most cynical aspects of alliance politics it sends a powerful message that governments can freely abandon principled foreign policy whenever it conflicts with hard power calculations of geopolitics (and in this instance, more relevantly, with the soft power dynamics of American domestic politics).

 

 

 

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Opposing Impunity for Geopolitical Criminality

5 Apr

 

 

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

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

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

 

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

 

 

 

 

Prosecuting Syrians for War Crimes Now

5 Jun

 

 

            A major undertaking of the victorious powers in World War II was to impose individual criminal accountability upon political and military leaders for alleged crimes committed during wartime before a tribunal convened by the victors that gave those accused a fair opportunity to present a defense. This application of this idea of accountability to German and Japanese surviving leaders at trials held in Nuremberg and Tokyo was hailed at the time as a major step in the direction of a ‘just peace.’ International law was treated as binding upon sovereign states and those that represented the government, conceived to be a major step in the direction of a global rule of law. The final decisions of these tribunals also produced a narrative as to why World War II was a necessary and just war. Such an outcome was both a vindication of the victory on the battlefield and a punitive repudiation of those who fought and lost. Significantly, this criminal process was formally initiated only after the combat phase of the war had ended and Germany and Japan had surrendered.

 

            There were skeptics in 1945 that whispered ‘victors’ justice,’ and insisted that this ‘Nuremberg experience’ was a partisan exercise in truth-telling. Above the courtroom hung an invisible sign reading ‘only losers need enter here.’ The Nuremberg goddess of ‘war justice’ wore no blindfold, assessed with one eye the crimes of the losers and averted her other eye so as not to see the crimes of the winners. In the actual trials those whose criminality was being assessed were not accused of any crimes that resembled the practices of the winners, and were not allowed by the tribunal bring up in their defense any of their alleged crimes.

 

            Many wanted to overlook this flaw, and move on to create a justice system that would indeed operate on the basis of the nature of the act as criminal or not, and not make criminality depend on the identity of the actorBut moving toward the ideal of equality before the law has not been easy. It requires elevating international criminal law above the precepts of geopolitics. Yet the impulse to do so in form has surfaced strongly in the aftermath of the Cold War, but we have yet to see any corresponding substantive transformation that must occur if equals are to be treated equally in international criminal law.

 

            Against such a background, the attempts to hold individuals, whether acting on behalf of governments or insurgencies, individually accountable for war crimes is treated as a core element of global justice. Since the International Criminal Court (ICC) was established in 2002, an institutional mechanism exists on a global level by which to apply international criminal law in an objective and authoritative manner. Further there exists convincing proof that horrifying atrocities have been committed in the course of the Syrian civil war, principally by the government and armed forces of Syria, and to a far lesser extent by various factions among the fragmented opposing rebel forces. In these circumstances, it would certainly seem appropriate to charge both Syrian government officials, including military commanders, and members of the insurgent opposition, with such crimes.

 

            France presented a resolution to the UN Security Council on 22 May calling upon the ICC to investigate allegations of war crimes in Syria, and to proceed with prosecutions to the extent possible. The resolution was supported by a 13-2 vote, yet it failed to pass because the two dissenting votes were cast by Russia and China, countries enjoying a right of veto. As might be expected, there have been angry explanations of the result given by both sides. According to the Russian delegate, the French initiative was nothing more than ‘a publicity stunt’ that would hamper, or even preclude, the difficult search for a diplomatic end to the strife. The Western reaction, significantly endorsed by the UN Secretary General’s office, declared that such a use of the veto was ‘irresponsible,’ even ‘disgraceful.’ It amounted to a de facto grant of impunity to the worst perpetrators of state crime active on the planet at this time.

 

            I believe that both of these contrasting reactions are understandable, and can be given a qualified endorsement despite seeming to contradict one another. The Russian reaction reflects a view that the main motivations for such a resolution is to weaken the legitimacy of the Damascus regime in the midst of an unresolved struggle for control of the country, and in this sense is better interpreted geopolitically as an irresponsible propaganda move rather than as a genuine attempt to promote criminal justice. As well, it has been Moscow’s insistence all along that the only way to end the violence in Syria is by way of diplomatic compromise. Thus, any attempt to indict Syrian leaders as war criminals while the fighting persists weakens the already dim prospects of resolving the conflict by diplomacy. It gives Assad and other Syrian leaders, the circle of those that likely would have been indicted, strong incentives to rely on combat rather than take their chances with diplomacy.

 

            The French approach, strongly supported by the Western powers, especially the United States, focuses on the clear evidence of criminality attributable to the Damascus regime. Such behavior deserves to be formally criminalized, and the fact that the Assad regime remains in power enhances the urgency of doing so. There is no need to look beyond these facts, and taking such action may increase the pressure on the Syrian government to seek accommodation.

 

            Further along these lines, the argument that recourse to the ICC will end diplomatic efforts to end the violence is specious. Conventional diplomacy has been given many chances, and has failed. They claim that diplomacy has been repeatedly tried and failed, including reliance at the highest levels on the good offices of the UN and Arab League through the determined efforts by Special Envoys, first, Kofi Annan and the Lakhdar Brahimi. To act as if diplomacy might succeed in the future is mainly a diversionary tactic to discourage taking immediate steps that might bring the war to an end in ways that are helpful to the aspirations of the majority of Syrians. The supporters of the French resolution argue that activating the ICC will produce public indignation, swing support to the insurgent side, and produce a more politically and morally desirable end game to the conflict by discrediting the Damascus regime and empowering the opposition within Syria, the region, and the world. There are many uncertainties exposed by this debate. It is difficult to reach a clear conclusion as to which side is more persuasive, but there are a series of considerations that should be taken into account, and add weight to those who voice skepticism about the French initiative.

 

            Motivation. There are reasons to think that this effort at this time is mainly an expression of frustration and desperation, and as such a misuse of the ICC by Western powers. True, the crimes of the insurgent rebels as well as those of the Syrian government were included in the proposed resolution, but the motivation was to delegitimize the Damascus government. Yet the rationale for initiating a criminal investigation directed at the leadership of all participants in the midst of a civil war for the control of the country seems like a misdirected move that is made in the face of the failure of earlier Western efforts to intervene sufficiently on the insurgent side .to produce regime change

            Timing. To use the ICC in the midst of an ongoing civil war in Syria is to take sides, and thus interfere with an ongoing internal struggle for control of the state and society. Mentioned above, even the Allied Powers in World War II waited until the guns fell silent before initiating any criminal process. As such, acting in the present setting interferes with the right of self-determination enjoyed by the people of Syria. Yet since there has been already considerable interference through funding and material support, the preconditions for self-determination do not exist, making an end to the violence that has been so devastating for the population of the country a primary goal. This makes it seem that the most important question to ask is whether criminal indictments while the war rages is likely to hasten or delay an ending of the conflict. And since neither side has shown the ability to prevail, the Russians seem right in their insistence that despite disappointments with earlier efforts, diplomacy continues to be the only path forward, although it is admittedly narrow.

           

            Justice. Is justice served when the authority of the ICC is invoked as a political instrument to influence the outcome of a civil war? There are reasons to worry about the discrediting impact of double standards. Why was there never any initiative to pursue leaders of the United States and the United Kingdom during the course of the Iraq War, which also included many incidents that seemed to qualify as crimes against humanity? This question takes on greater weight when added to earlier criticisms of the profile of the ICC, which has pursued a variety of sub-Saharan African leaders, but few others. It is also relevant to recall that the Serbian leader, Slobodan Milosevic, was indicted in the midst of the Kosovo War in 1999 undertaken without UN authorization by NATO, again seemingly motivated by the urge to strengthen public support for the justness of a legally controversial military effort to end Serbian administration of Kosovo. Again in the NATO led military operation against the Libyan regime, the ICC issued arrest warrants for the Qaddafi leadership while NATO planes were bombing Tripoli. In effect, the allegation being made by critics of such war crimes prosecutions is that the whole undertaking has been politicized in ways that lead to a selective application of the law that seems inconsistent with claims of justice. In effect, the criticism of Nuremberg still applies—only losers and the weak are accountable. For the others, impunity.

 

            Feasibility. The unlikelihood of obtaining personal jurisdiction in relation to the principal perpetrators of war crimes in Syria, especially Bashar al-Assad and major political officials and military commanders, makes the claimed rationale for seeking indictments at this stage also suspect. Proceeding now seems to have as its main justification a means to add moral weight to the position of pro-insurgency governments that something more should be done to stop the criminality of the Assad-led government. Reinforcing this reasoning is a consensus that since military intervention is not feasible and diplomacy has failed, the only option left is to charge Syrian leaders with crimes against humanity. The ICC provides a venue to mobilize pressure for giving additional help to the rebels, and at the same time depriving the Damascus government of whatever is left of its legitimacy. The fact that the French resolution calls also for an investigation of possible crimes against humanity committed by the opposition, while not being frivolous, is nevertheless certain to receive far less attention in the event tha the UNSC had given the ICC a green light.

 

            There is a serious question as to whether it is appropriate to use the ICC to gather evidence and prepare an indictment in circumstances where prospects of prosecution are remote and an ongoing struggle for control of the Syrian state remains unresolved. Such limitations also would seem to reinforce concerns about the timing of this initiative. It makes recourse to ICC not only ineffectual as a means to pursue criminal justice, but damaging to the credibility of this fledgling international institution that was created, it should be remembered, to overcome the vagaries of geopolitics, not to serve as their instrument for engaging in maneuvers.

 

            Concluding Comment. There are two intertwined concerns: First, whether seeking criminal indictments of Syrians accused of crimes against humanity is on balance helpful or harmful in relation to the search for peace that has so far proved fruitless. This issue should be considered in relation to prospects for resolving the devastating conflict in Syria that has already lasted for more than three years.

 

            And secondly, whether such recourse to the ICC would strengthen or weaken this judicial institution, and its need to overcome the strong impression of operating on the basis of double standards in relation to criminal accountability. So far all efforts to use the ICC in response to crimes alleged against Western countries have been rebuffed, and Western leaders have enjoyed impunity and have minimized their own participation in the activities of the ICC except when it serves their interests in going after adversaries. A tiny opening is the recent indication that the ICC is formally investigating criminal charges relating to the abuse of Iraqi detainees by United Kingdom occupying forces in the years after 2003. Perhaps, the times are changing, after all!

 

Armenian Grievances, Turkey, United States and 1915

26 Apr

 

 

            On April 10 by a vote of 12-5, with one abstention, the U.S. Senate Foreign Relations Committee gave its approval to Resolution 410 calling upon Turkey to acknowledge that the massacres of Armenians in 1915, and subsequently, constituted ‘genocide.’ It also asks President Obama to adjust American foreign policy by advocating an “equitable, constructive, stable and durable Armenian-Turkish relationship including full acknowledgement of ‘the Armenian genocide.’” So far, Obama since becoming president has refrained from uttering the g-word, although he has acknowledged the historical wrongs done to the Armenian people in the strongest possible language of condemnation.

 

            Such resolutions, although widely understood to be symbolic and recommendatory, reflect the efforts of the Armenian diaspora to raise awareness of the true nature of what the Armenians endured in 1915, and especially to induce the Turkish government to acknowledge these events as ‘genocide,’ or else suffer the reputational consequences of embracing what is being called ‘denialism.’ The resolution is the latest move to build a strong international consensus in support of the Armenian sense of grievance, and in so doing generate pressures on the accused Turkish government to admit the full enormity of the crimes against the Armenian people by admitting that it was genocide. Further there may also be present an intention to reinforce an appropriate apology, should it be forthcoming, with such tangible steps as restoring stolen property and possibly even establishing a reparations fund.

 

            The Armenian campaign also makes the wider claim that this process of redress for a horrendous historic grievance will also act as a deterrent to the commission in the future of similar crimes. The Senate resolution, however, make a minimal contribution to these goals. It is little more than a gesture of good will explicitly associated with commemorating the 99th anniversary of the 2015 events. As the April 24th day of commemoration has passed without the resolution being put on the action agenda of the full Senate prior to its Easter recess the resolution becomes consigned to the permanent twilight of a recommendation that is never even consummated by the relevant legislative body. Such an interplay of action and inaction manifests an underlying governmental ambivalence as to how this issue should be formally addressed by the United States at official levels of government. Why? Because the expression criticism of the Turkish government for the manner it is addressing the Armenian demands for redress inevitably engages American foreign policy.

 

            The Turkish Foreign Minister has already indicated his displeasure with such initiatives, insisting that respected historians should investigate the claim of genocide, that it is not appropriate for third countries to meddle in such matters, and that such an initiative, if it were formally endorsed at higher levels in Washington, will have a negative influence on the search for some kind of mutually acceptable resolution of these persisting tensions. The Turkish narrative on 1915, which has been softening its oppositional stance during the past decade, still argues that there were atrocities and suffering for Turks as well as Armenians, including a considerable number of Turkish casualties. Further, that the massacres of Armenians were less expressions of ethnic hatred than expressive of a reliance on excessive and undisciplined force to suppress an Armenian revolt against Ottoman rule at a time when Armenians were siding with invading Russian armies in the midst of World War I.

 

What is at Stake

 

            There are two important, intertwined concerns present. First, the whole issue of inter-temporal justice, how to address events that took place one hundred years ago in a manner that is as fair as possible to the victims yet takes account of the passage of time in assessing responsibility for such long past events. Secondly, the degree to which such an issue should be resolved by the parties themselves within the frame of the country where the events took place, or within the framework of the United Nations, rather than be addressed in the domestic politics of third countries whose governments are likely swayed by the presence or absence of aggrieved minorities.

 

            My impression is that the current leadership in Turkey is less seriously committed to upholding the Turkish narrative than in the past, but neither is it willing to subscribe to the Armenian narrative in some of its key elements, especially the insistence that what took place in 1915 must be described as genocide if it is to be properly acknowledged. It is not only the inflammatory nature of the word itself, but also a reasonable apprehension in Ankara of ‘the Pandora’s Box’ aspects of such a process, which once opened would likely move from the word genocide to such delicate embedded questions as reparations and the restoration of stolen property. Especially in recent months, the Turkish political scene has been rather chaotic, and undoubtedly there is a present reluctance by Turkish leaders to stir the hot embers of its nationalist political culture by acceding to the Armenian agenda relating to resolving the conflict. Yet with the 100th anniversary of 1915 around the corner, Turkey has its own strong incentives for being pro-active in developing a forthcoming posture in relation to Armenia and the Armenians.

 

            Against such a background, it seems important to ask what it is that the Armenian demand for the redress of historic grievances is seeking. Is it the belated satisfaction of having Turkey formally declare and admit that what took place in 1915 was ‘genocide,’ or is it more than this? Is there embedded this further demand that Turkey honor the memory of these events by some sort of annual observance, perhaps coupled with the establishment of an Armenian Genocide Museum? Or as signaled already that Turkey is expected to establish a fund and reparations procedures that will allow descendants of the victims to put forward economic claims for the harms endured? In effect, is the full range of Armenian expectations apparent at this stage or merely somewhat clouded? As the experience with the Holocaust suggests, there is no single event that can permanently shut the doors of history or dry the tears of extreme remorse. At most, acknowledgement, apology, and even tangible steps initiate a process that will never completely end, nor bring a satisfying closure to those who identify with the victims of such an unforgivable stream of past occurrences.

            As well, parallel to the genocidal and 1915 Armenian agenda, is a long festering inter-governmental dispute between Turkey and the sovereign state of Armenia over control of Nagorno-Karabakh region in the middle of Azerbaijan that has closed the border between the two countries since 1993. The Acting Armenian Foreign Minister, Edward Nabandian, added fuel to this diplomatic fire by welcoming the Senate resolution as “an important step” toward establishing “historical truth and prevention of crimes against humanity.” By so doing, the international dispute over Nagorno-Karabakh is joined at the hip to the historical controversy about the events of 1915. In an unusual way, the Armenian campaign is mainly conducted under the direction of the Armenian diaspora, and has only been given a secondary emphasis by Armenia itself, which has generally seemed more concerned about economic relations, and especially the territorial dispute in Azerbaijan, when dealing with its Turkish neighbor.

 

            What is one to do about a course of events that occurred under distinct national and international conditions expressive of different structures and legal norms that prevailed a century earlier? I was similarly challenged recently after giving a lecture on moral responsibility in international political life. The question was posed by a native American in the audience who angrily asked me why I had failed to advocate the restoration of the land seized in earlier centuries from the indigenous peoples who then inhabited North America, implying that my silence about such matters was an implicit endorsement of genocide. Such a reaction is understandable on the part of those who identify with a victimized community, but cannot be prescriptive in relation to 21st century realities. Certainly it was genocidal in willing that distinct ethnic groups become extinct or endure forcible dispossession, but there was at the time no legal prohibition on such behavior, and whatever moral interdiction existed was inconclusive, despite the manifest cruelty of the colonizing behavior. At this point, the clock cannot be rolled back to apply contemporary standards of justice to past wrongdoings, although ethical sensitivity and empathy is fully warranted. And what is totally unacceptable are any present efforts to rationalize or even glorify past barbarisms. For instance, the disgusting revisionist view of American slavery recently articulated by the right-wing libertarian rancher, Cliven Bundy, who absurdly asserts that slaves were probably happier than freed African Americans because they enjoyed the satisfactions of family life. As Charles Blow observes in an opinion piece, “Slaves dishonored in life must not have their memories disfigured by revisionist history.” {Blow, “A Rancher’s Romantic Revisionism,” NY Times, April 26, 2014]

 

            We must begin from where we are (but not end there), seeking as humane and transparent a response to these historic injustices as seems possible given both the intervening developments and the relevant balance of forces now and then. True, the anti-colonial movements of the last half of the 20th century did undo earlier injustices because of their capacity to mobilize effective movements of popular resistance. Indigenous people do not have this capacity, and are confined to what legal remedies are voluntarily conferred, and to what degree documenting the past creates sufficient public sympathy to support initiatives seeking some fractional measure of moral and material rectification.

 

            To some extent, accurate documentation is itself a form of historic redress, as was the case with the post-dictatorial ‘truth and reconciliation’ processes that tried in Latin American and South Africa to reconcile peace and justice during a transition to constitutional democracy, yet never brought anything approaching satisfaction or even closure to the victim communities that had earlier experienced unforgiveable criminality. We should also learne from Nelson Mandela’s willingness to overlook the structural injustices associated with economic and social apartheid in achieving the ‘political miracle’ of a peaceful dissolution of political apartheid. Also relevant are some of the late reflections of Edward Said on how to address the Palestine/Israel struggle given the realities that existed fifty years after the establishment of Israel. In effect, Said was of the opinion that despite the legally and morally unacceptable dispossession of the Palestinian people from their homes and homeland in 1948, it was now both futile and wrong to challenge any longer the existence of Israel. To resolve the conflict, in his view, required an acknowledgement of past injustices, especially the nakba, and mutually agreed arrangements that allowed the two peoples to live and co-exist in peace under conditions of equality, security, and dignity.

 

Was it Genocide?

 

            Is there a single historical truth that must be affirmed by all those of good will, and is it what the Armenian movement and U.S. Senate resolution contends? Can Turkey only express its good faith by subscribing literally to the main features of the Armenian narrative? Until it makes such a willingness clear it is unlikely to deflect the accusatory agenda of those demanding redress. In effect, is the litmus test of Turkish sincerity and remorse dependent upon a formal acknowledgement that what took place in 1915 was unequivocally ‘genocide’? I believe the historical truth is quite unequivocal from a factual and moral perspective, namely, that there was a systematic and deliberate effort to eliminate the Armenian minority from Turkey stemming from government orders and plans, and although occurring in the midst of war, political instability, and national upheaval, the ethnic violence was so one-sided and comprehensive as to undermine the credibility of the central contention of the Turkish narrative that World War I brought about an inter-ethnic experience of shared suffering replete with atrocities, but the blame cannot be exclusively attributed to Turkey, nor can the suffering be exclusively assigned to the Armenian community. This historical truth of predominant Turkish responsibility, however, is far more equivocal in relation to the further Armenian insistence that these genocidal events constitute the crime of genocide as embodied in the 1948 Genocide Convention, which came into force in 1951.

 

            Criminal law is not retroactive. Even the Nuremberg Judgment, which endorsed such innovations as ‘crimes against the peace’ and ‘crimes against humanity’ avoided any attempt to hold the Nazi leaders being prosecuted responsible for genocide despite the magnitude of the Holocaust and the abundance documented evidence of the deliberate and planned elimination of the Jewish people. What exactly, then, is the crime of ‘genocide’? Can it be said to pre-exist the entry into force of the Genocide Convention, considering the wording of its first article, but if so, why was genocide ignored in the prosecution of these Nazis? The wording of Article 1 of the Genocide Convention lends an aura of ambiguity to such queries: “The contracting parties confirm that genocide whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” (emphasis added). The word ‘confirm’ in Article 1 seems supportive of the view that the crime depicted in the treaty somehow preexisted the adoption of the Convention, and that only the usage of the word is retroactive. Yet the concept of genocide was not conceived to be a legal category until the crime was proposed in 1944 by Raphael Lemkin. I would suppose that had Lemkin persuaded the political community to adopt the Genocide Convention a decade earlier the Nuremberg indictments would have included the crime, and possibly the decision would have given guidance as to whether the crime came into being with treaty or antedated its ratification.

 

            Controversy is present as soon as the idea is to compel Turkey to admit that the massacres of 1915 are massive commissions of the crime of genocide, and as such, have an array of legal implications. More flexible, by far, would be a process of inquiry by an international commission of independent experts, which included well respected international lawyers, that would likely conclude that the events in question were clearly ‘genocidal’ in character, and if they had occurred after the Genocide Convention was adopted in 1950, they would constitute ‘genocide.’

            The World Court in responding to the Bosnia complaint alleging Serbian genocide concluded that a high evidentiary bar exists to establish the crime of genocide even with the benefit of the Convention, but it did find that the 1995 massacre in Srebrenica was ‘genocide.’ The majority decision of the highest judicial body in the UN System indirectly highlights the crucial differences between the crime of genocide and the psycho/political/sociological realities of genocidal behavior.

 

Is U.S. Government Involvement Constructive?

 

            The question of whether the United States should be involved in shaping international public opinion is less significant than the substantive dispute about the events, but far from trivial. The questionable political opportunism that connects the responsiveness of Congress to a well-organized Armenian lobby in the United States does seem to make reasonable the official Turkish response that it is never helpful for a foreign government to take the anti-government side in an unresolved controversy of this sort. It is bound to harm bilateral relations between the two countries. In effect, the mutual respect for sovereignty requires governments to refrain from such meddling under almost all circumstances. One can easily imagine the furor in the United States if the Turkish Parliament passed a resolution insisting that Washington finally acknowledge that native American tribal communities were victims of genocide or that descendants of slaves are entitled to reparations. However sincere and morally plausible, in a world where legality and legitimacy are almost always matters for territorial sovereigns to resolve, the foreign source of such sentiments are deeply resented, and are more likely to produce an angry backlash than to induce an accommodating retreat.

 

Finding a Solution

            From the Armenian perspective seeking redress, is this show of American governmental support helpful or not? I suspect that a more discreet effort would produce less defensiveness on the Turkish side, and more willingness to seek a mutually satisfactory outcome. Mobilizing the American Congress and French legislative bodies is somewhat similar to looking beneath the lamppost for a watch dropped in the darkness of the night. Admittedly, if the purpose is to raise awareness and mobilize support from the Armenians such a public relations campaign may be effective even if it stiffens Turkish resistance in the short run.

             A second important concern is how to address the genocide issue given the passage of time, and the interplay of preoccupations on both sides. My preference would be for both Turkish and Armenian representative to agree that it is permissible to use the word genocide with reference to the Armenian ordeal of 1915, but with a shared understanding that the use of the word in relation to the massacres of Armenians is without legal effect. The concept of genocide is inherently ambiguous as it simultaneously puts forward an empirical description of a set of events that offers a political, psychological, sociological, and ethical evaluation of those events, while also advancing the possible legal evaluation of such events as constituting the crime of genocide, which would also mean sustaining a heavy burden of proof as required to establish specific intent, which is a vital element of the crime.

 

            What does not help internationally, it would seem, is posturing by the U.S. Congress. It will probably necessitate some quiet fence-mending by the Obama presidency to maintain good Turkish-American relations, a key strategic priority. At the same time, the Turkish government should not sit still. It should do more than angrily push aside this American initiative and the related Armenian campaign, and show a more forthcoming attitude toward finding common ground to heal gaping Armenian wounds that remain open after a century. Mounting pressure due to the worldwide Armenia is definitely raising the level of awareness, but only wisdom, empathy, and good will on both sides can overcome such an embittered past. In some respects, there is something tragic about this standoff between those who have reason to want the past to be a matter of historical reflection and those who insist that the past is forever present.

 

            The Turkish government has reiterated its offer to establish a joint commission composed of Armenian, Turkish and international historians to establish an authoritative narrative. Besides the likelihood that existing disagreements would be reproduced in the working of this type of commission, the idea that core concern is ‘historical’ misses a main point that such a traumatic series of events need to be interpreted from multiple perspectives, including that in this instance of international criminal law. Establishing the factual reality, which strongly favors Armenian empirical claims, does not resolve the question of what would qualify as an appropriate acknowledgement by the Turkish government, nor does it address the lurking concern as to whether acknowledgement is sufficient, and if not, what further steps must be taken by Turkey if it is to satisfy the Armenian campaign.