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Apartheid and the Future of Israel/Palestine

20 Sep

 

[Prefatory Note: There has been lots of discussion prompted by the release of a report jointly authored with Prof. Virginia Tilley, a study commissioned by the UN Economic and Social Commission for West Asia (ESCWA), and given by us the title, “Israeli Practices towards the Palestinian People and the Question of Apartheid.” The interview, associated with my current visit to Belgium and France to speak on various aspects of the analysis and implications of the report, brings up to date the controversy generated at the UN by its release a few months ago, and by the willingness of the UN Secretary General to bow to U.S. pressure and order the removal of the report from ESCWA website. The interview questions were posed by veteran Middle East correspondent, Pierre Barbancey, and published in l’Humanité, Sept. 6, 2017.]

 

 

 

1 YOU HAVE PUBLISHED A REPORT: WHO ASKS FOR THAT AND WHY?

 

The Report was commissioned by the UN Economic and Social Commission for West Asia in 2016 at the request of its Council, which has a membership of 18 Arab states. Professor Virginia Tilley and I were offered a contract to prepare a report on the applicability of the crime of apartheid to the manner in which Israeli policies and practices affected the Palestinian people as a whole, and not as in previous discussions of the applicability of apartheid, only to those Palestinians living since 1967 under Israeli occupation. The originality of the Report is to extend the notion of apartheid beyond the Occupied Palestinian Territories, and investigate its applicability to Palestinians living in refugee camps in neighboring countries, to those Palestinians enduring involuntary exile abroad, and to those existing as a discriminated minority in Israel.

 

2) What are the conclusions of the ESCWA Report?

 

The most important conclusion of the Report was that by careful consideration of the relevant evidence, Israel is guilty of the crime of apartheid as defined in the 1976 International Convention on the Suppression and Punishment of the Crime of Apartheid with regard to the Palestinian PEOPLE AS A WHOLE, that is, Palestinians living under occupation as refugee and in involuntary exile, and as a minority in Israel are all victimized by the overriding crime. The Report also found that Jews and Palestinians both qualify as a ‘race’ as the term is used in the Convention, and that Israel to sustain a Jewish state established by ‘inhuman acts’ a structure of oppressive and discriminatory domination by which the Palestinians were victimized as a people.

 

A second conclusion of importance is that the Rome Statute governing the International Criminal Court considers apartheid to be one type of ‘crime against humanity,’ which does not necessarily exhibit the same features as pertained to the apartheid regime in South Africa, the origin of the concept and crime, but not a template for its subsequent commission.

 

A third conclusion is that given the existence of apartheid, sustained to maintain a Jewish state in Palestine, all sovereign states, the UN, and civil society all have a legally grounded responsibility to take all reasonable steps of a nonviolent character to bring the commission of the crime to an end.

 

A fourth conclusion is that the Report is an academic study that draws conclusions and offers recommendation on the basis of a legal analysis, but it is not a duly constituted legal body empowered to make formal findings with respect to the allegations that Israel is guilty of apartheid.

 

 

 

3) WHAT WAS THE REACTIONS?

 

We experienced two contradictory sets of reactions.

 

From ESCWA the report was received with enthusiasm. We were told it was the most important report that ESCWA had ever published, with by far the largest number of requests for copies.

 

At the UN, the report and its authors were strongly attacked by the diplomatic representatives of the United States and Israel, with the demand the UN acted to repudiate the report. The Secretary General instructed the Director of ESCWA to remove the report from its website, and when she refusing, she tendered her principled resignation explained in an Open Letter to the Secretary General. It should be appreciated that this was an academic report of international law experts, and never claimed to be an official reflection of UN views. A disclaimer at the outset of the Report made this clear.

 

4) WHAT HAPPENED NOW WITH THE REPORT?

 

The status of the report within ESCWA is not clear. As far as I know the report itself has not been repudiated by ESCWA. In fact, it has been endorsed in a formal decision of the 18 foreign ministers of the ESCWA countries, including a recommendation to other organs of the UN System that the findings and recommendations of the Report be respected. Beyond this, the report has altered the discourse in civil society and to some extent, in diplomatic settings, making the terminology of ‘apartheid’ increasingly displace the emphasis on ‘occupation.’

 

 

5) ISRAEL SAYS THAT THE BDS MOVEMENT IS ANTI-SEMITIC. WHAT IS YOUR ANSWER?

 

This is an inappropriate and even absurd allegation. The BDS Campaign is directed against Israeli policies and practices that violate international law and cause great suffering to be inflicted on the Palestinian people. It has nothing whatsoever to do with hostility to Jews as persons or as a people. The allegation is clearly designed to discredit BDS and to discourage persons from lending it support or participating in its activities. It is an unfortunate and irresponsible use of the ‘anti-Semitic’ label designed to manipulate public opinion and government policy, and inhibit activism.

 

6) IN FRANCE YOU CAN BE PUT IN COURT IF YOU ACT FOR BDS, LIKE A CRIME. DO YOU HAVE ANY KNOWLEDGE OF SIMILAR SITUTIONS IN OTHER COUNTRIES?

 

I know there have been efforts in Europe and North America to criminalize support for BDS, but so far as I know, no formal laws have yet been brought into existence, and no indictments or prosecutions, outside of Israel and France, have taken place. I am not entire clear as to what has happened in Israel along these lines, although I know that Israel has been denying BDS supporters from abroad entry into the country.

 

7) WHAT IS YOUR EXPERIENCE AS SPECIAL REPORTEUR OF THE UNITED NATIONS IN THE PALESTINIAN TERRITORIES AND IN ISRAEL?

 

My experience as UN Special Rapporteur in Occupied Palestine on behalf of the Human Rights Council was both frustrating and fulfilling. It was frustrating because during my six years as SR the situation on the ground and diplomatically worsened for the Palestinian people despite the documented record of Israeli human rights abuses. It was fulfilling because it enabled a forthright presentation of Israeli violations of basic Palestinian rights, which had some influence on the discourse within the UN, building support for corporate responsibility in relation to commercial dealing with Israel’s unlawful settlements on the West Bank and East Jerusalem as well as shifted some of the discourse within the UN from ‘occupation’ to ‘settler colonialism’ and ‘apartheid.’

 

It was also something of a personal ordeal as I was constantly subject to defamatory attacks by UN Watch and other ultra Zionist NGOs and their supporters, also organizing efforts to have me dismissed from my UN position and barred from lecturing on university campuses around the world. Fortunately, these efforts failed by and large, but they did have the intended effect of shifting the conversation from substance to auspices, from the message to messenger.

7) 70 YEARS AFTER THE DIVISION OF PALESTINE BY THE UNITED NATIONS  HOW DO YOU SEE THAT DECISION?

 

The1947 partition resolution [GA Res. 181] was part of the exit strategy of the British colonial administration in the mandate period that controlled Palestine after the collapse of the Ottoman Empire at the conclusion of World War I. This approach was flawed in several basic respects: it neglected the will of the majority Arab and non-Jewish domestic population, and imposed a solution to the conflict without consulting the inhabitants; it also within its own terms failed to secure Palestinian rights or its sovereign political community, or even to uphold international humanitarian law. The UN never effectively implemented partition, and thus gave Israel the de facto discretion to impose its will on the entire territory of Palestine, including the expulsion of 750,000 Palestinians in the 1947 War, which overcame the demographic imbalance, and allowed itself to be branded to this day as ‘a democracy,’ even being hailed as ‘the only democracy in the Middle East.’ The US and Europe played a crucial geopolitical role in producing these developments, which rested on an Orientalist mentality lingering in the West.

8) IS THERE A SOLUTION FOR THE PALESTINIAN TO RECOVER THEIR RIGHTS AND TO LIVE IN THEIR OWN STATE?

 

It is difficult to envision the future at this stage, yet it is clear that the Palestinian national struggle is continuing both in the form of Palestinian resistance activities and by way of the international solidarity movement, of which the BDS Campaign is

by far the most important undertaking. In my judgment until there is exerted enough pressure on the Israeli government to change course drastically, signaled by a willingness to dismantle the laws and procedures associated with the current apartheid regime used to subjugate the Palestinian people, there is no genuine prospect for a political solution to the conflict. Such a change of course in South Africa occurred, against all expectations at home and abroad, and partly in response to pressures generated by this earlier version of an international BDS campaign. My hope is that as the Palestinian people continue to win the ongoing Legitimacy War, this pattern will eventually be repeated, leading after a prolonged struggle to a sustainable peace between these two peoples based on the cardinal principle of equality. This will not happen, tragically, until there is much suffering endured, especially by Palestinians living under occupation, in refugee camps and involuntary exile, and as a discriminated minority within Israel. This Palestinian ordeal has gone on far too long. Its origins can be traced back at least a century ago when in an undisguised colonial gesture of the British Foreign Office pledged its support for the establishment of a Jewish homeland in historic Palestine to the World Zionist Movement in the form of the Balfour Declaration (1917). The competing national narratives of what transpired over the subsequent century tell different stories, each with an authentic base of support in the relevant community, but only the Palestine narrative can gain present comfort from the guidelines of international law, above all, the inalienable right of self-determination

 

 

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Evolving International Law, Political Realism, and the Illusions of Diplomacy

21 Aug

 

 

International law is mainly supportive of Palestinian grievances with respect to Israel, as well as offering both Israelis and Palestinians a reliable marker as to how these two peoples could live normally together in the future if the appropriate political will existed on both sides to reach a sustainable peace. International law is also helpful in clarifying the evolution of the Palestinian struggle for self-determination over the course of the last hundred years. It is clarifying to realize how the law itself has evolved during this past century in ways that bear on our sense of right and wrong in the current phase of the struggle. Yet at the same time, as the Palestinians have painfully learned, to have international law clearly on your side is not the end of the story. The politics of effective control often cruelly override moral and legal norms that stand in its way, and this is what has happened over the course of the last hundred years with no end in sight.

 

 

The Relevance of History

 

2017 is the anniversary of three crucial milestones in this narrative: (1) the issuance of the Balfour Declaration by the British Foreign Secretary a hundred years ago pledging support to the World Zionist Movement in their campaign to establish a homeland for the Jewish people in Palestine; (2) the passage of UN General Assembly Resolution 181 seventy years ago proposing the partition of Palestine between the two peoples along with the internationalization of the city of Jerusalem as a proposed political compromise between Arabs and Jews; and (3) the Israel military occupation of the West Bank, East Jerusalem, and the Gaza Strip over fifty years ago after the 1967 War.

 

Each of these milestones represents a major development in the underlying struggle. Each combines an Israeli disregard of international law the result of which is to inflict major injustices on the Palestinian people. Without due regard for this past, it will not be possible to understand the present encounters between Israelis and Palestinians or to shape a future beneficial for both peoples that must take due account of the past without ignoring the realities of the present.

 

Israel is sophisticated about its use of international law, invoking it vigorously to support its claims to act in ways often motivated by territorial ambitions and national security goals, while readily evading or defying international law when the constraints of its rules interfere with the pursuit of high priority national goals, especially policies of continuous territorial encroachment at the expense of reasonable Palestinian expectations and related legally entrenched rights.

 

To gain perspective, history is crucial, but not without some unexpected features. An illuminating fact that demonstrates the assertion is that when the British foreign office issued the Balfour Declaration in 1917 the population of Palestine was approximately 93% Arab, 7% Jewish in a total population estimated to be about 600,000. Another historical element that should not be forgotten is that after World War I there were a series of tensions about what to do with the territories formerly governed by the Ottoman Empire. In the background was the British double cross of Arab nationalism, promising Arab leaders a single encompassing Arab state in the Ottoman territories if they joined in the fight against Germany and its allies in World War I, which they did. Palestine was one of these former Ottoman territories that should have received independence within a unified ‘Arabia,’ which almost certainly would have led to a different unfolding over the course of the last century in the region.

 

As European greedy colonial powers, Great Britain and France ignored commitments to contrary, and pursued ambitions to control the Middle East by dividing up these Ottoman imperial possessions, making them colonies of their own. These plans had to yield to friction that resulted from United States Government support of the ideas of Woodrow Wilson to grant independence to the Ottoman territories by applying the then innovative and limited idea of self-determination. It should be appreciated that Wilson was not opposed to colonialism per se, but only to the extension of European colonizing ambitions to fallen empires. In this same period, however, two other anti-colonial forces were simmering, the Leninist version of self-determination the core of which was anti-colonialism and the rise of movements of national resistance throughout Asia and Africa.

 

In the end, the diplomats at Versailles negotiated a slippery compromise in the form of the Mandate System. The European colonial powers were authorized to administer various Middle Eastern territories as they wished, not as colonial masters, but by assuming the role of trustee acting on behalf of the organized international community as represented by the League of Nations. Unlike such an arrangement in the contemporary world, the rejection of self-determination and the subjection of a foreign country to this form of mandatory tutelage was not then perceived to be a violation of international law, although it was widely criticized in progressive political circles as imprudent politically and questionable morally.

 

The British were particularly eager to govern Palestine, and eagerly accepted their role as mandatory authority. Their imperial interests revolved around the protection of the Suez Canal and overland trade routes to India. As was their colonial practice, Britain pursued a divide and rule strategy in Palestine despite its mandatory status. With this governing perspective in mind the British were eager at the outset of the mandate in the 1920s to increase the Jewish presence in Israel as quickly as possible so as to create a better balance with the native Arab majority population. This, of coincided with Zionist priorities, and led Britain to endorse strongly the Zionist project of encouraging Jewish immigration to Palestine. This dynamic greatly accelerated in the 1930s, especially after the Nazis took over the German government. In reaction to this influx of Jews, the Arab population in Palestine became increasingly restive, worried by and hostile to this rapid increase in the size of the Jewish and viewed with growing alarm increasingly manifest Zionist state-building aspirations, which gave rise to the so-called Arab Uprising of 1936-39. It should be understood that when it became clear that the Zionists wanted their homeland to be in the form of a Jewish state in Palestine it produced a qualitative escalation of friction between immigrant Jews and indigenous Arabs.

 

This circumstance led in two directions that illuminate the evolution of the conflict. First of all, the Palestinians felt threatened in their homeland in a period of their own rising nationalism, a process evident throughout the non-Western world, and sought political independence for themselves but lacked adequate leadership and a resistance movement with sufficient military skills to bring it about. Secondly, the Zionist movement in Israel by manifested its contrary ambitions to establish its own independent state in Palestine increasingly were in conflict with Britain, their earlier benefactor. To achieve their goals the Zionist movement, or more accurately, the more radical sections of the movement, launched a sustained and intensifying terrorist campaign that had the strategic goal of raising the costs of governance of Palestine past the tipping point. When this goal was achieved it led Britain to contemplate alternatives to a continuation of their role as administrator of the Mandate.

 

As is the British tendency whenever stymied by a large bump in the road, a royal commission is formed and given the job of devising a solution. The commission became known as the Peel Commission, in recognition of its Chair, Lord Earl Peel, which was appointed to assess the situation in 1937. As also was the British tendency after conducting a comprehensive inquiry, the principal and unsurprising recommendation of the commission was partition of Palestine. It is this idea of dividing up the people of Palestine on the basis of ethnic identity that continues to be the preferred solution of the international community, commonly known as ‘the two-state solution,’ and was eventually accepted by the Palestinian Liberation Organization in 1988, seemingly creating the essential common ground that could produce a territorial compromise acceptable to both peoples. It is helpful to realize that at some point in the 20th century such a solution dictated by an external actor lacked legitimacy even if sincerely seeking the wellbeing of the affected peoples, a presumption of good will that was not itself strong in the case of Britain given its past broken promises to Arab leaders. For partition to be legitimate by the time of World War II it would have required some formal expression of approval from the Palestinian population or its recognized representatives. Such approval would not have been forthcoming. Even at the end of World War II the Jewish population of Palestine was definitely a minority, and there is every indication that the non-Jewish majority population would have overwhelmingly opposed both partition and the establishment of a Jewish state. There was also present significant Jewish opposition to the Zionist project that is rarely acknowledged; its extent although non-trivial, is difficult to estimate with any reliability.

 

Nevertheless, with the notable exception of the Arab world, was the near universal acceptance of the two-state solution has it never materialized? There have been numerous diplomatic initiatives up until the present, and yet this two-state outcome has never come close to becoming a reality. Why is this? It is one among several seemingly mystifying dimensions of the Israel/Palestine encounter.

 

I would venture a central line of explanation. The main leaders of the Zionist movement before and after the establishment of the state of Israel in 1948 never subjectively accepted the two-state approach, at least with the parameters understood in Washington, the West, and among Palestinian leaders. Although Israeli political leaders blandly indicated their acceptance of a two-state approach if it meant real peace, the territorial dimensions and curtailed sovereignty of any Palestine state that was to be agreed upon were never set forth in terms that Palestinians could be expected to accept.

 

In this respect, it is necessary to appreciate that both the right of a people to self-determination had become incorporated into international law, most authoritatively in common Article 1 of the two human rights covenants adopted in1966, and that colonialist patterns of foreign rule and settlement had become unlawful in the decades following World War II. A central historical paradox is that Israel successfully established itself as independent state, almost immediately admitted to the UN, in the very historical period during which European colonialism was collapsing throughout the world, and losing any claim to political legitimacy.

 

Israel defied these transforming international developments in several concrete and unmistakable ways. Although at the time of the UN General Resolution 181 recommending partition of Palestine, the resident population was not consulted as to their wishes for the future despite the fact that the Jewish population in 1947, even with the post-Holocaust immigration surge, still numbered no more than 30% of the total. The ‘solution’ imposed by the UN, and ‘accepted’ by Israel as a tactical step on the path to control over all or most of Palestine and rejected by the Arab world and Palestinian leaders, amounted to an existential denial of inalienable Palestinian rights at the time. Undoubtedly moral factors played a decisive role, ranging from sympathy for Holocaust survivors to compensating for the failures of the liberal democracies to do more to prevent the Nazi genocide, but these powerful humanitarian considerations do not provide a legal justification for disregarding the rights of the Palestinian people protected by international law, or even a moral justification. After all, the harm inflicted upon Jews as a people was essentially a European phenomenon, so why should the Arabs of Palestine bear the burdens associated with creating a Jewish national sanctuary. Of course, the Zionist answer rests the claims to Palestine on its status as ‘the promised land’ of the Jewish people, an historical/religious claim that has no purchase in state-centric world order that allocates territorial claims on the basis of sovereign rights and effective control. From the perspective of political realism the strongest basis for Jewish territorial rights in Palestine has always rested on effective control established by successful military operations.

 

Nor did international law uphold the acceptance of the later outcome of the 1948 war in which Jewish forces increased their effective territorial sovereignty from the 55% proposed by the UN to 78% obtained by success in the war, which also resulted in the permanent dispossession of over 700,000 Palestinians and the deliberate destruction of as many as 531 Palestinian villages to ensure that coercive dynamic of ethnic cleansing was not later reversed. The armistice at the end of the 1948 War became internationally accepted, demarcating provisional borders between the two peoples, known as the ‘green line,’ and also separating the military forces at the end of the 1948 War. These provisional borders became the new negotiating baseline to be relied upon to establish agreed permanent boundaries. This enlargement of the territory assigned to Israel in 1948 directly violated one of the prime rules of contemporary international law, the non-acquisition of territory by conquest or use of force. In effect, the politics of effective control was to apply only intranationally, but not internationally.

 

The 1967 War resulted in Israel replacing Jordan as the administering authority in the West Bank and East Jerusalem, and Egypt in the Gaza Strip, as well as occupying the Syrian Golan Heights. At the UN Security Council unanimous Resolution 242 called upon Israel to withdraw from these territories, comprising 22% of the Palestine governed by Britain during the mandate period, and for a just resolution of the refugee problem. 242 carried forward the idea of ethnic separation contained in the UN partition solution, although without mentioning a Palestinian state. 242 also confirmed as authoritative the norm that territory could not be validly acquired under international law by forcible means. The resolution did envision a negotiated withdrawal and border adjustments to reflect Israeli security concerns, but it left the implementation up to the parties with no limits on reasonableness or duration. After 50 years, the various unlawful encroachments on what the UN calls Occupied Palestinian Territories, especially the annexation and enlargement of the entire city of Jerusalem and the establishment of an archipelago of Israel settlements and a related network of Israeli only roads, cast serious doubt on whether Israel ever had the intention to comply with the agreed core withdrawal provision of SC Resolution 242. With respect to Jerusalem Israel defiant unilateralism exhibited a rejection of the supposed compromise that was hoped by UN member would bring an end to the conflict. Israel has compounded its defiance by continuously undermining the stability of Palestinian residence in Jerusalem while engaging in a series of cleansing and settlement policies designed to give the city a higher Jewish demographic profile.

 

These three historical milestones call attention to two important aspects of the relevance of international law: first, what was acceptable under international law 100, 70, and 50 years ago is no longer acceptable in 2017; secondly, that Palestinian grievances with respect to international law need to be taken into account in any diplomatic solution of the conflict, above all the right of the Palestinian people to self-determination, which needs to realized in a context sensitive to the right of the Jewish people resident in historic Palestine. Although injustices and international law violations have shaped the unfolding of this contested country over the course of the last century, history can neither be ignored nor reversed. Giving proper effect to this double right of self-determination is the central challenge facing an authentic peace diplomacy. Thirdly, the entrenched presence of the Jewish population of Israel, and the state structures that have emerged, even if brought about by legally questionable means, are now part of the realistic status quo that needs to be addressed in a humane and politically sensitive manner.

 

 

The Politics of Effective Control

 

In this sense the historical wrongs endured by the Palestinian people, however tragic, do not predetermine the shape of a present outcome reflective of international law. A peaceful solution presupposes a diplomatic process that recognizes this right as inhering in the situation of both peoples. A mutually acceptable adjustment also does not imply either a two-state or one-state solution or something inbetween, or even an as yet unimagined alternative. Any legitimately agreed solution by the two peoples would be in accord with present day international law. How the historical experience is taken into account is up to the parties to determine, but unlike the Balfour Declaration or the UN partition proposal, in this post-colonial era it is unacceptable under international law for a solution to be imposed, whether by force or under the authority of the UN or by a third party intermediary such as the United States. Unfortunately, international law, and related considerations of justice, are not always determinative of political outcomes as effective control maintained over time generates a framework of control that becomes ‘legal’ if internationally recognized in an authoritative manner.

 

The U.S. Attack on al-Shayrat Airfield

8 Apr

 

 

In early morning darkness on April 7th the United States fired 59 Tomahawk cruise missiles at the Syrian al-Shayrat Airfield from two American destroyers stationed in the Eastern Mediterranean. It described the targets as Syrian fighter jets, radar, fuel facilities used for the aircraft. It asserted prior notification of Russian authorities, and offered the assurance that precautions were taken to avoid risks to Russian or Syrian military personnel. Pentagon spokespersons suggested that in addition to doing damage to the airfield, the attack had the intended effect of “reducing the Syrian government’s ability to deliver chemical weapons.”

 

President Donald Trump in a short public statement justified the attack as a proportionate response to the Syrian use of chemical weapons against the town of Khan Sheikhoun in the western Syrian province of Idlib a few days earlier, which killed an estimated 80 persons, wounding hundreds more. Although there were denials of Syrian responsibility for the attack from Damascus and Moscow, a strong international consensus supported the U.S. view that Bashar al-Assad had ordered the attack allegedly as a means of convincing opposition forces concentrated in Idlib that it was time to surrender.

 

In the background, is the conviction among the more militaristic policy advisors and political figures, including Trump, that President Barack Obama’s failure to enforce his 2012 ‘red line’ warning to Syria emboldened Assad to launch this latest attack with chemical weapons. Of course, this is all hawkish speculation that can be neither proven nor disproven, but it undoubtedly influenced the Trump entourage to suppose that it was presented with an opportunity to exhibit a greater readiness to use American military force in the Syrian conflict, incidentally, an outlook long advocated by Hillary Clinton and many of her advisors and foreign policy supporters. To do so, abandoned one of Trump’s signature pledges, to avoid military engagement in the conflicts raging throughout the Middle East, which he portrayed as a costly failure of prior American political leaders. Trump under pressure due to the growing evidence of ties with Russian political leaders during the 2016 presidential campaign may have welcomed an occasion on which to demonstrate his independence from Moscow and Putin. The departure from the Trump campaign agenda is particularly pointed as there were no American casualties resulting from the attack on Khan Sheikhoun 60 hours earlier than the Tomahawk response.

 

In Trump’s brief public rationale, the red line argument was not relied upon, but rather the combination of humanitarian outrage and grief with an assertion of the “national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons.” This geopolitical purpose was reinforced by a cursory appeal to international law and even the UN Security Council: “There can be no dispute that Syria used banned chemical weapons, violated its obligations under the Chemical Weapons Convention and ignored the urging of the U.N. Security Council.” Yet identifying Syria’s evident violation of international law should not be confused with an international law justification for the use of retaliatory force. In using this language Trump was evidently seeking to weaken the impression of an irresponsible unilateral American recourse to non-defensive force without bothering to seek an endorsement from the U.S. Congress or the UN. Not surprisingly Moscow and Damascus both condemned the attack as an act of ‘aggression’ and ‘a flagrant violation of international law.’

 

Trump used some additional words designed to draw attention away from the unilateral nature of the attack by contending that it fulfilled the common goals of “civilized nations” to deter Assad and defeat terrorism, thereby linking the American initiative to what he called ‘justice’ rather than basing legitimacy exclusively on an appeal to ‘law’ or ‘order.’ Trump expressed this sentiment as follows: “And we hope that as long as America stands for justice, that peace and harmony will in the end prevail.” This is very different in tone, substance, and policy from Trump’s campaign rhetoric, which stridently stressed ‘America first,’ clarified as a call to act with reinvigorated resolve to devote military capabilities exclusively to promoting U.S. material national interests, and to stop wasting resources and energy by trying to address the larger concerns of the world, especially in the Middle East. This abrupt affinity with an internationalist spirit is made explicit in Trump’s final words—“Good night, and God bless America and the entire world.” As far as I know, this ritualistic invocation of God so much associated with George W. Bush and mimicked by Barack Obama never was extended to include “the entire world,” which is such an unfamiliar wording as to suggest that it was deliberately inserted to stake a quite unexpected and renewed claim to American moral leadership in world affairs. As with the attack itself, it seems likely to be a one/off embrace of cosmopolitan sentiments, but it is still worth noting. After all, language matters.

 

As has been suggested, bombing a Syrian airfield is unlikely to help Syrian children exposed to the terrible ravages of this war, that is, unless it does create a new momentum for a sustainable ceasefire. Already, the Russian reaction signals a worsening of relations with the United States in Syria and generally, and may end up producing the kind of confrontation that had led Republicans in the national security establishment to abandon Trump during the presidential campaign a year ago. With the removal of Bannon from the National Security Council it may not be premature to suggest that the deep state has found ways to reestablish its influence on national security policy after all seemed lost due to Trump’s electoral victory and vindictive attitude toward ‘the intelligence community.’ It is far too early to say that bureaucratic wars are over, but there is at the very least clear movement evident toward the restoration of the pre-Trump established order in Washington.

 

The Khan Sheikhoun attack raises more fundamental questions that are neither raised nor resolved by Trump’s speech. Despite making a gesture in the direction of international law by reference to the Chemical Weapons Convention and Security Council directives, the strike against al-Shayrat Airfield was a non-defensive use of force by the United States that violates the core UN Charter prohibition unless carried out on the basis of an explicit Security Council authorization. It is precisely the sort of unilateralism that the Charter, and post-1945 international law, made unlawful. In this context there was no urgency or necessity to strike immediately that might have made the departure from Charter norms seem more reasonable. Of course, Security Council authorization would not have been forthcoming, given the near certainty that Russia would use its veto. In that sense, assuming the attribution of responsibility for the chemical weapons attack to the Assad regime holds up, which is by no means assured, there is a dilemma presented when the moral and political case for action is strong, but lacks an ample justification in international law.

 

Of course, international law has for more three decades given way to the dictates of counterterrorism policies, which have featured retaliatory strikes ordered by American presidents without international authorization. Has this pattern of essentially unchallenged practice by the U.S. Government done away with the legal constraints of the UN Charter? Some jurists suggest that state practice of this character creates new expectations about the scope of legality of international uses of force by states in addressing security threats posed by non-state actors or by internal threats of state/society atrocities as here and in the Kosovo War of 1999. In a decentralized world, lacking governmental authority at regional and global levels, it seems regressive to endorse this return to a state of affairs where warfare is discretionary, and international law and respect for the authority of the United Nations are reduced to considerations of convenience and self-interest, and thus, as here, when inconvenient, a powerful state can use force with unconditional impunity in pursuit of its foreign policy goals.

 

There are also accompanying prudential questions about recourse to a military response in this instance where the intended target is the internationally recognized government of a sovereign state that is engaged in a protracted civil war. Is this a further challenge to state-centric world order? Will the attack magnify the conflict still further rather than deter Assad and make a political compromise more likely? Will the antagonism of Russia and Iran make it more difficult to bring the conflict to an end by reliance on diplomacy? There is no way to answer such questions beyond the observation that where, as here, international law opposes recourse to force, the risks of further escalation are considerable, and the rise of geopolitical tensions inevitable, the presumption should be strongly against a military response.

 

Then there are domestic questions about whether it is okay for an American president to resort to an international use of force without some sort of Congressional debate and authorization (short of a Declaration of War). Again Trump has plenty of precedents for acting without a specific Congressional authorization from the presidencies of Ronald Reagan, Bill Clinton, and George W. Bush. Executive warmaking authority was definitely increased after the 9/11 attacks, and given a limited, although broad, legislative imprimatur in the Authorization for the Use of Military Force (AUMF) statute of 2001. AUMF is limited to those forces responsible for the 9/11 attacks and ‘associated forces,’ which the Obama presidency interpreted to extend to Al Qaeda wherever located, and without any time horizon. It seems beyond doubt that constitutionalism in the war/peace context has been severely weakened over the course of the last 70 years, and this latest episode just continues the trend. It would seem that where there is no necessity to act instantly and where there is no formal UN authorization, the underlying republican commitment to checks and balances to avoid abuses of power, should have led Trump to seek authorization from Congress, and in light of his failure to do so, a critical reaction from Congress.

 

There are two clusters of serious questions raised. Is this a new turn toward belligerent internationalism by the Trump presidency that will shape the near future of American foreign policy in the Middle East, and possibly elsewhere? Does the reversion to unilateralism with respect to international uses of force heighten the risks of geopolitical escalation and large-scale warfare, including possibly the threat or use of nuclear weapons?

 

 

 

 

Asking Foolish Questions About Serious Issues

7 Mar

 

 

When the Clinton campaign started complaining about Russia interfering in US elections by hacking into the DNC I was struck by their excesses of outrage and the virtual absence of any acknowledgement that the United States has been interfering in dozens of foreign elections for decades with no apparent second thoughts. CNN and other media brings one national security expert after another to mount various cases against Putin and the Kremlin, and to insist that Russia is up to similar mischief in relation to the upcoming French elections. And never do they dare discuss whether such interference is a rule of the game, similar to espionage, or whether what was alleged to have been done by the Russians might lead the US political leaders and its intelligence agencies to reconsider its own reliance on such tactics to help sway foreign elections.

 

Is this selective perception merely one more instance of American exceptionalism? We can hack away, but our elections and sovereign space are hallowed ground, which if encroached upon, should be resisted by all possible means. It is one thing to argue that democracy and political freedom are jeopardized by such interference as is being attributed to Moscow, and if their behavior influenced the outcome, it makes Russia responsible for a disaster not only in the United States but in the world. The disaster is named Trump. Assuming this Russian engagement by way of what they evidently call ‘active measures’ occurred is, first of all, an empirical matter of gathering evidence and reaching persuasive conclusions. Assuming the allegations are to some extent validated, it hardly matters whether by what means the interference was accomplished, whether done by cyber technology, electronic eavesdropping, dirty tricks, secret financial contributions, or otherwise.

 

What is diversionary and misleading is to foster the impression that the Russians breached solemn rules of international law by disrupting American democracy and doing their best to get Trump elected or weaken the Clinton presidency should she have been elected. The integrity of American democratic procedures may have been seriously compromised, and this is deeply regrettable and should be remedied to the extent possible, but whatever happened should not be greeted with shock and consternation as if some inviolate international red line had been provocatively crossed.

 

There are three appropriate questions to pose: (1) what can we do to increase cyber defenses to prevent future intrusions, and restore domestic confidence that elections in the United States reflect the unimpeded will of the citizenry and are not the result of machinations by outsiders? (2) do we possess the means to ascertain the impact of such intrusions on the outcome of the 2016 national elections, and if such investigation points beyond a reasonable doubt to the conclusion that without the intrusion Clinton would have won, should that void the result, and impose on Congress the duty to arrange for a new emergency electoral procedure for selecting a president free from taint (especially if the Trump campaign aided and abetted the Russian intrusion)? (3) are there ways to bolster norms against interventions in the internal affairs of sovereign states that offer protection against such interference? Note that giving convincing answers to these questions is not a simple matter, and requires serious reflection and debate.

 

To illustrate the moral and political complexity we can consider the core dilemma that is present for a government with a dog in the fight. Suppose the Kremlin had reason to believe that a Clinton presidency would lead to a new cold war, would it not have been reasonable, and even responsible, for Russians leaders to support Trump, and if the situation were reversed, shouldn’t the US do all it can do to avoid the election of a belligerent Russian leader? Wouldn’t millions of people have been thankful if Western interference in the German elections of 1933 were of sufficient magnitude to avoid the triumph of the National Socialist Party?

 

 

There are good and bad precedents arising from past international behavior, especially if established by important states by repeated action, that then empower others to act in a similar manner. Without governmental institutions to oversee political behavior, the development of international law proceeds by way of international practice. Thus when the United States claims the right to interfere and even engage in regime-changing interventions, we greatly weaken any objections when others do the same sort of thing. What is sauce for the goose is sauce for the gander. The logic of reciprocity contributes to a normative process that reflects international practice as much as it does international lawmaking treaties.

 

Some equally serious and worrisome parallel issues are raised by recent disclosures of serious cyber attacks by the US Government on the North Korean nuclear program. The American media and government officialdom treat the conduct of cyber warfare against North Korea’s nuclear program as something to be judged exclusively by its success or failure, not whether its right or wrong, prudent or reckless. We interfered with the North Korean nuclear program without seeking authorization from the UN, and certainly without any willingness to tolerate reciprocal behavior by others that disrupted any of our nuclear activities.

 

It can be plausibly argued that North Korea and its wily leader, Kim Jong-un, are dangerous, reprehensible, and irresponsible, and that it is intolerable for such a government to possess nuclear weapons and long-range missiles. That such a circumstance creates a ‘right of exception,’ suspending international law and considerations of reciprocity, would seem a far more responsible way to proceed, preserving a sense that the US is normally respectful of and accountable to international law, but North Korea poses such a dire threat to humanity as to make all means of interference acceptable. But apparently so intoxicated by geopolitical hubris the thought never occurs to either our leaders or the compliant mainstream media that puts out its own version of ‘fake news’ night after night. It is instructive to realize how bipartisan is this disregard of the relevance of international law to a sustainable world order. These new disclosures relating to North Korea assert that Trump ‘inherited’ an ongoing cyber war program from Obama, who had in earlier years been unabashedly complicit with Israel’s cyber efforts to disrupt Iran’s nuclear program.

 

Does it serve the interests of the United States to set the rules of the game in international relations with respect to nuclear policy, making little pretense of being bound by the standards imposed on other sovereign states, especially those non-nuclear states accused of taking steps to acquire the weaponry? The tigers control the mice, and the idea of a rule of law that treats equals equally is completely foreign to the American mindset in the 21st century when it comes to the role of hard power, security policy, and grand strategy in international life, but interestingly, but much less so in the context of trade and investment. This distinction is worth pondering.

 

In other words when it comes to security policy and grand strategy, there are two basic rules of contemporary geopolitics that contravene the golden rule of ethical behavior:

 

         Rule #1: Do not allow others to do unto you what you frequently do to others (the Russian hacking discourse);

 

         Rule #2: Do unto other what you would never accept others doing unto you (cyber attacks on Iran and North Korea).

 

It is arguable that this normative assymetry is the only way that world order can be sustained given the absence of world government, or even a strong enough UN to enact and implement common behavioral standards in these domains traditionally reserved for sovereign discretion. A golden rule governing the way states are expected to act toward one another with respect to war/peace issues is certainly currently situated in global dream space. If this is so or so believed, let us at least lift the fog of self-righteous rhetoric, plan to defend our political space as well as we can, and rethink the unintended consequences of interfering in foreign elections and engaging in regime-changing interventions.

 

At least, let us not deceive ourselves into believing that we are responsible custodians of peace and decency in the world. Do we really have grounds for believing that Donald Trump is less dangerous to the world than Kim Jong-un or the Supreme Guide of Iran? Even if their outlook on political engagement overlaps and their swagger is similar, the US is far more powerful, has alone used nuclear weapons against civilian targets and overthrown numerous foreign governments, including those elected in fair and free elections, and has its own house in a condition of disorder, although despite all this admittedly humanly far more desirable than the order experienced within totalitarian North Korea.

 

Is it not time for the peoples of the world to rise up and put some restraints on the strong as well as the weak? The UN veto power confers on the most powerful states a constitutional free ride when it comes to compliance with international law and the UN Charter. In effect, the UN back in 1945 institutionalized a topsy-turvy structure that curbs the weak, while granting impunity to the predatory behavior of the strong.

 

If we grant that this is the way things are and are likely to remain, can’t we at least look in the mirror, and no longer pretend to be that innocent damsel that can only be protected by slaying the dragons roaming the jungles of the world. Trump had his singular moment of truth when he responded on February 4th to Bill O’Reilly’s assertion that Putin was “a killer”: “There are a lot of killers. We’ve got a lot of killers. What do you think? Our country is so innocent.” And unlike Trump’s frequent journeys into dark thickets of falsehood that are dismissed by the injunction “let Trump be Trump,” when the man speaks truly for once, his words were scorched, and erased even from the influential media blackboards of the alt right.

Why Arms Control is the Enemy of Nuclear Disarmament

9 Jul

No First Use: Arms Control versus Disarmament Perspectives

 

I have long believed that it is important to disentangle the advocacy of nuclear disarmament from the prevailing arms control approach. The core difference in perspective can be summarized as follows: arms controllers seek to stabilize nuclearism, reserving nuclear weapons for use as deterrent weapons of last resort; nuclear disarmers seek to get rid of nuclear weapons as reliably as possible, and forever; disarmers regard their possession, development, and potential use as deeply immoral as well as dangerous from the perspective of long-term human security.

 

President Barack Obama ever since his 2009 speech at Prague projecting a vision of a world without nuclear weapons has confused public understanding by straddling the fence between these two incompatible perspectives. He often talks like a potential disarmer, as during his recent visit to Hiroshima, but acts like an arms controller, as in the appropriation of $1 trillion for the modernization of the existing nuclear weapons arsenal over the next 30 years or in NATO contexts of deployment.

 

There is a quite prevalent confusion among those constituencies that purport to favor nuclear disarmament of supposing that the adoption of arms control measures is not only consistent with, but actually advances toward the realization of their objectives. Such reasoning is deeply confused in my view. It is not just that most formulations of arms control regard nuclear disarmament, if at all, as an ‘ultimate’ goal, that is, as no goal at all falling outside the domain of policy feasibility.

Obama signaled his own confusion in two features of his Prague speech: first, indicating without giving any rationale (there is none) that achieving nuclear disarmament might not be achieved in his lifetime; secondly, avoiding any mention of the legal imperative of a good faith commitment to pursue nuclear disarmament that was unanimously endorsed by an otherwise divided court in the International Court of Justice historic Advisory Opinion of 1996.

 

Incidentally, the label ‘advisory’ is deeply misleading as this legal pronouncement by the highest judicial body in the UN System is the most authoritative interpretation attainable of relevant international law by distinguished jurists drawn from the main legal and cultural traditions active in the world. For such a diverse group to agree on the legal imperative of disarmament is notable, and for it to be ignored by a supposed advocate who is in a position to act is both revealing and irresponsible.

 

My view of the tension between the two perspectives can be briefly articulated: arms control measures unless tied to a disarmament scenario make the retention of nuclear weapons less prone to accident, inadvertent use, and unnecessary missions while reinforcing the logic of deterrence and indirectly expressing the view that a reliable nonproliferation regime is the best that can be hoped for ever since the nuclear genie escaped confinement. Such an approach makes the advocacy of nuclear disarmament

appear to be superfluous idealism, at best, and an imprudent

challenge to deterrence and realism, at worst. There is a coherent argument for such a posture, but it is not one that credible supporters of a nuclear zero or nuclear disarmament should feel comfortable with as it undercuts their supposed priority to eliminate the weaponry once and for all, although moving to zero by verified stages. This contrasts with the central undertaking of the arms control community to live with nuclear weapons as prudently as possible, which translates into nonproliferation, safety, prudent foreign

policy, non-provocative weapons development and deployment, and trustworthy crisis management.

 

Printed below is a recent editorial of the Arms Control Association proposing the American adoption of a no first use policy as a crucial declaratory step in advancing their agenda of nuclear prudence. Its line of argument well illustrates the overall nuclearist logic of the arms control establishment, which also tries to justify its proposal by showing that nuclear weapons are not needed to fulfill America’s worldwide geopolitical ambitions. These ambitions can be satisfied in all circumstances, it is alleged, except a nuclear attack by a nuclear weapons state, by relying on U.S. dominance in conventional weaponry.

 

Here is a further issue raised: for states that possess or contemplate the possession of nuclear weapons, yet are vulnerable to conventional weaponry of potential adversaries, the implicit rationale of the Arms Control Association editorial is that such states have strong

justifications for retaining, and even for developing such weaponry. In effect, countries such as Iran and North Korea can read this editorial as suggesting that they need nuclear weapons to deter surrounding countries with superior conventional weaponry from exerting undue influence via intervention or coercive diplomacy. In effect, the Arms Control Association no first use position, by treating that the U.S. Government and think tank policy community as its target audience, is undercutting the ethical and political rationale for nonproliferation as a rule of world order. As security is the acknowledged prime value in state-centric world order, an argument justifying nuclear weapons for the leading military power in the world is in effect providing non-nuclear states that feel threatened with a powerful

argument for acquiring a nuclear deterrent.

 

A final clarification: I have long favored the adoption of a no first use policy on its own merits, including at the height of the Cold War. It not only underscored the immorality and criminal unlawfulness of any initiating use, but if properly explained could be taken as a vital step in a disarming process. As long as no such posture was adopted even by the United States, with its formidable conventional military options, it meant that the potential use of nuclear weapons was never taken off the geopolitical table. This meant, as well, that the nuclear weapons labs were encouraged to envision potential roles for these weapons of mass destruction and design weaponry configured to carry out such missions.

 

In effect, a nuclear disarmament position also entails a repudiation of geopolitical ambitions to project worldwide military power as the United States has done ever since the end of World War II. This grandiose undertaking has weakened the UN, undermined respect for international law, and subverted democratic institutions within the United States and elsewhere, all while making the country more insecure than at any time in its history and its enemies more bold and aggressive. The common flaw of dominant political actors is to underestimate the will and capability of its militarily weaker adversaries to develop effective modes of resistance. Both the Vietnam experience and 9/11 should have imparted this basic message that the United States was endangering its future (and that of the world) by its posture of geopolitical hubris built on the false belief that the effective agent of change in the twenty-first century is military

dominance. The nuclear dimension of this hubris is particularly dangerous, and ultimately debilitating.

 

It is long overdue to distinguish arms control from disarmament. Arms controllers have made such a choice, purging genuine advocates of disarmament from their ranks as dreamers. The arms control voice is welcome in government even when their proposals are rejected because they collide with geopolitical goals. In contrast, the voice of disarmers is popular among the peoples of the world. Obama’s Prague speech made such a worldwide social impact, and continues to resonate, because it was widely heard (incorrectly) as putting the United States firmly on a disarmament path.

 

Unfortunately, after eight years of an Obama presidency it is as clear as ever that it is civil society alone that carried the disarmament torch during this period, somewhat backed by a series of non-nuclear governments that are not complicit beneficiaries of America’s nuclear umbrella (e.g. Japan, South Korea, Taiwan). In this spirit, although not always sufficiently clear about the policy implications of their nuclear disarmament agenda, the best vehicle for those favoring nuclear disarmament is the Nuclear Age Peace Foundation and such initiatives as Chain Reaction 2016 and the Lawyers Committee on Nuclear Policy.

 

*********************************************************************

 

Editorial Published on Arms Control Association (http://www.armscontrol.org); posted June 30, 2016

 

Take Nuclear First-Use Off the Table

The Cold War standoff that gave rise to tens of thousands of nuclear weapons ended a quarter century ago, and U.S. and Russian deployed arsenals have been slashed through verifiable arms control agreements.

Unfortunately, the risks of nuclear weapons use are still far too high, in part because the policies developed to justify their possession and potential use remain largely the same.

President Obama in 2009 at Hradčany Square Prague, Czech Republic (Photo: White House)

Early in his presidency, President Barack Obama made clear that he sought “to put an end to Cold War thinking” and pledged to “reduce the role of nuclear weapons in our national security strategy and urge others to do the same.”

On June 6, deputy national security adviser Ben Rhodes pledged that the president “will continue to review whether there are additional steps that can be taken to reduce the role of nuclear weapons in our own strategies and to reduce the risk of inadvertent use.”

One very important step would be for Obama to declare that the United States will not be the first to use nuclear weapons. Such a decision could unwind dangerous Cold War-era thinking and greatly strengthen U.S. and global security.

Limiting the circumstances under which the United States would use nuclear weapons was a goal laid out by the “Nuclear Posture Review Report” in 2010, which said the United States should pursue the objective of making deterrence against a nuclear attack the “sole purpose” of the nuclear arsenal.

Nevertheless, current policy still leaves several dangerous and destabilizing nuclear weapons-use options on the table, including the option to use nuclear weapons first in a conflict to pre-empt a real or suspected nuclear attack, to counter the possible use of chemical or biological weapons, or to halt a massive conventional military threat against U.S. forces or allies.

Today, the United States and Russia still deploy thousands of nuclear warheads on hundreds of bombers, missiles, and submarines. Current U.S. strategy requires that there are enough nuclear forces available to destroy nearly 1,000 enemy targets, many in urban areas, and that these weapons can be launched within minutes of a decision to do so.

Maintaining such a capability plays a large role in compelling Russia—and may soon help to lead China—to field a sizable portion of their nuclear forces in a launch-under-attack mode in order to avoid a disarming nuclear strike. This, in turn, increases the chance that nuclear weapons might be used or dispersed by U.S. adversaries in a crisis.

As Obama correctly said in 2008, the requirement for prompt launch is “a dangerous relic of the Cold War. Such policies increase the risk of catastrophic accidents or miscalculation.”

By adopting a no-first-use policy, the United States could positively influence the nuclear doctrines of other nuclear-armed states, particularly in Asia. Such a shift in U.S. declaratory policy could also alleviate concerns that U.S. ballistic missile defenses might be used to negate the retaliatory potential of China and Russia following a pre-emptive U.S. nuclear attack against their strategic forces.

Shifting to a no-first-use policy would not, in any way, undermine the U.S. ability to deter nuclear attack by another state. It is well established that U.S. nuclear forces and command-and-control systems could withstand even a massive attack, and given the size, accuracy, and diversity of U.S. forces, the remaining nuclear force would be more than sufficient to deliver a devastating blow to any nuclear aggressor.

Given the overwhelming U.S. conventional military edge, there is no plausible circumstance that could justify—legally, morally, or militarily—the use of nuclear weapons to deal with a non-nuclear threat. U.S. nuclear weapons are useless in deterring or responding to nuclear terrorism or to a potential chemical, biological, or cyberattack by state or nonstate actors.

A no-first-use policy would not undermine confidence in U.S. defense commitments to key allies. Even if there were to be a conventional military conflict with a nuclear-armed state, such as Russia in the Baltic Sea region or elsewhere, the employment of nuclear weapons would be counterproductive because it would trigger an uncontrollable and potentially suicidal escalation of nuclear weapons use. As a result, the threat of nuclear weapons first-use to counter non-nuclear attacks lacks credibility.

In remarks delivered in Hiroshima May 27, Obama declared that “among those nations like my own that hold nuclear stockpiles, we must have the courage to escape the logic of fear and pursue a world without them.” Yes, we must.

A U.S. no-first-use policy would reduce the risk of nuclear catastrophe, improve the prospects for further Russian nuclear cuts, and draw China into the nuclear risk reduction process. It would put a spotlight on the dangerous nuclear doctrines of Pakistan and North Korea, where the risk of nuclear weapons use is perhaps most severe, and challenge them to reconsider the first-use option.

By encouraging a new norm against first-use of nuclear weapons, Obama could help ensure, for this generation and those to come, that nuclear weapons are never used again.

 

 

Celebrating the Life and Legacy of Daniel Berrigan

10 May

Remembering Daniel Berrigan

 

I was privileged to know Daniel Berrigan in the last stages of the Vietnam War, not well, but well enough to appreciate his quality of moral radiance and to admire the spiritual dedication that he exhibited in opposing the Vietnam War, and later nuclearism. I also knew Dan’s brother, Phil, who shared these remarkable qualities, although Phil exuded an earthy embrace of life while Dan seem to keep his distance from quotidian pursuits by living a meditative life as a poet and devoted member of the Jesuit order, as well as being inspirational anti-war activist. In contrast, Phil gave up the priesthood to marry Elizabeth McAlister, herself a former nun and a deeply committed lifelong partner with respect to social and political engagement. Together they established Jonah House (community nonviolence center) in Baltimore that continues to serve the poor and stand for peace and justice in our society and in the world. Despite leaving the Church in a formal sense, Phil never departed from his religious vocation and Christian commitment, to help the poor and struggle against abuses of state power. As I recall when I was in contact with them, because of their parental and community responsibilities, Phil and Liz took turns engaging in the kind of political actions likely to land them in prison, both exhibiting this extraordinary willingness to sacrifice their freedom to exhibit the seriousness and depth of their engagement in the struggle against injustice and evil.

 

Actually, I knew Liz socially before she and Phil were publically together, finding her an astonishingly lively, warmly challenging, and playfully serious personality; Eqbal Ahmed was our close common cherished friend responsible for our initial meetings, and Eqbal and Liz were both Harrisburg defendants being accused of dreaming up the kidnapping caper, which was a fanciful caper that was taken seriously only by our paranoid government security services that had planted an informer in Phil’s prison cell and then proceeded to act as if phantasy was plot. At the same time, it was not so fanciful if international law was taken as seriously as it deserves to be, and the dangers of allowing Henry Kissinger to remain at large were as understood as they ought to be.

 

It is perverse how our government continues to prosecute as criminals those who are its most loyal patriots (for instance, Edward Snowden, Chelsea Manning) and rewards with the highest offices of the land and the greatest honors those who degrade the nation by rampant militarism responsible for massive suffering in distant lands.

 

My contact with Dan, Phil, and Liz, as well as other Catholic anti-war activists, resulted from my participation in several criminal trials, acting on their behalf as an expert witness. Two trials stand out in my mind—the Harrisburg 7 trial in 1971 held in Harrisburg Pennsylvania of seven defendants, including Phil and Liz (Dan was noted in the government complaint as an unindicted co-conspirator); and the Plowshares 8 case in the early 1980s that resulted from an action damaging the nose cones of the Mark 12A missile and pouring blood on documents while trespassing on the General Electric Nuclear Re-entry Division, located at King of Prussia, Pennsylvania. My main contribution was to visit Ramsey Clark in his Washington office, shortly after he had resigned at Attorney General, and persuade him to represent the Harrisburg defendants, which he did in an effective and deeply committed manner that changed him forever.

 

I also testified in both trials. My line of testimony was along two major lines: first, that it was reasonable to believe that the conduct of the Vietnam War and the development of nuclear weapons were contrary to international law; and secondly, since the Nuremberg Judgment against surviving Nazi leaders after World War II it was reasonable for individuals to believe that they had a right, and possibly, a duty, to act nonviolently in an effort to oppose internationally unlawful behavior on the part of the government.

 

It was apparent to me that the motivation for the actions undertaken by the Berrigans derived from their profound devotion to pre-Constantine Christian ethics, and was coupled with an ambivalence toward institutionalized Christianity. At the same time I felt that both Dan and Phil, in their separate styles, welcomed the legal reinforcement that my testimony attempted to provide. It overcame the widely voiced liberal objection that such disruptive behavior as burning draft cards or damaging potential nuclear weapons was unacceptable in a democratic society as it claimed the right to take the law into one’s own hands, and thus warranted indictment, prosecution, and punishment, and at best, represented ‘civil disobedience’ in the Thoreau sense of exposing the immorality of the law on the books but at the same time backing the governmental responsibility to uphold the law as it existed.

 

Reliance on international law and what I called ‘the Nuremberg obligation’ offered an objective platform upon which to rest such symbolic challenges to lawlessness on the part of the state. In effect, the defense rested on the necessity of such exceptional acts of obstruction as part of a wider effort to halt this lawlessness in view of the failure of governmental institutions to uphold what they believed the law required with respect to war and peace. In this regard, what the Berrigans did was more radical than civil obedience, contending that the government and political leaders were engaged in criminal activities that needed to be stopped by all possible nonviolent means. In this fundamental sense, what the Berrigans di should not be confused with the challenge to the morality of law mounted by Thoreau. The Nuremberg tradition provides a normative foundation for engaged citizenship, and claims that the sovereign state is itself constrained by law, which if it disobeys in matters of war and peace should politically empower citizens to act as enforcers of this higher law.

 

In a manner similar to whistleblowing, these kinds of anti-war actions undertaken by citizens should be appreciated as a populist check on war making and criminality by the state. We the people should support such defiance with gratitude and celebrate its occurrence as signs of democratic vitality and vigilance. This post-modern supplement to republican constitutionalism, distinguished by its reliance on checks and balances, seems currently more necessary than ever given the failure of Congress to fulfill its constitutional responsibility to agree upon a declaration of war as a prerequisite to lawful war making and even more so, given the regulation of recourse to war that is part of contemporary international law and is the core undertaking of the UN Charter, an international treaty, that by virtue of Article VI of the US Constitution is ‘the supreme law of the land.’ In this respect, what Dan and Phil believed with their whole being was the sacred importance of repudiating aggressive war making and reliance on weapons of mass destruction, and holding the state and its representatives, including in relation to their own country, fully accountable if they fail to uphold and respect obligations under international law. This is their moral, political, and legal legacy that should be reminding all of us that passivity in a constitutional democracy should be condemned as a form of lethal complicity in the nuclear age. That such a message seems ‘radical’ is itself a sign of democratic entropy and fatigue. The degree to which the citizenry of this country has been pacified at the very moment when it desperately needs to be awake and vigilant should alarm us all.

 

In these respects, honoring our remembrance of Daniel Berrigan, including being attentive to his poetry that was an organic dimension of his moral and spiritual witnessing, is both a gift and a challenge. What I find most enduring about the lives of the Berrigan brothers is its call to all of us to act as engaged citizens if we want to save our planet from depravities of war, injustice, and avoidable ecological collapse.

 

By highlighting the significance of Dan’s personal resistance to abuses of state power, I would not want to leave the impression that this signified all that made him special. Even aside from such public contributions, it was apparent to all whom Dan touched in the course of his long life that he was an exceptional human being, transparent in moral and spiritual coherence, mindful in his attentiveness to the suffering and wellbeing of others, a powerful and unforgettably vivid and loving presence, a challenge to our daily complacency. In the end, I will keep remembering Dan and Phil as an inspiration and as a challenge, as well as appreciating Liz for all that she continues to achieve by way of spiritual community.

Why Democratic Party Foreign Policy Fails and Will Continue to Fail

5 Mar

 

[Prefatory Note: An earlier version of this essay appeared on March 2, 2016 in The Progressive Magazine. It tries to explain the entrapment of liberal Democrats in an iron cage of militarism when it comes to international security policy. The explanation points in two directions: the militarized bureaucracy at home and the three pillars of credibility constraining elected political leaders—unquestioning support for high Pentagon budgets, opposition to stiff regulation of Wall Street abuses, and any expression of doubts about unconditional support of Israel.]

 

Why Democratic Party Foreign Policy Fails and Will Continue to Fail

For six years (2008-2014) I acted as UN Special Rapporteur for Occupied Palestine, and found myself routinely and personally attacked by the top UN diplomats representing the U.S. Government. Of course, I knew that America was in Israel’s corner no matter what the issue happened to be, whether complying with a near unanimous set findings by the World Court in the Hague or a report detailing Israeli crimes committed in the course of its periodic unlawful attacks on Gaza. Actually, the vitriol was greater from such prominent Democratic liberals as Susan Rice or Samantha Power than from the Republican neocon stalwart John Bolton who was the lamentable U.S. ambassador at the UN when I was appointed. I mention this personal background only because it seems so disappointingly emblematic of the failure of the Democratic Party to walk the walk of its rule of law and human rights talk.

 

From the moment Barack Obama stepped into the Oval Office he never tired of telling the country, indeed the world that we as a nation were different because we adhered to the rule of law and acted in accord with our values in foreign policy. But when it came down to concrete cases, ranging from drone warfare to the increasingly damaging special relationships with Israel and Saudi Arabia, the policies pursued seemed almost as congenial to a Kissinger realist as to an Obama visionary liberal. Of course, recently the Republicans from the comfort zone of oppositional irresponsibility chide the government led by a Democrat for its wimpy approach whether in response to Russia’s involvement in the Ukraine, China’s moves in the Pacific, and especially the emergence of ISIS. The Republicans out of office want more bombs and more wars in more places, and seem content to risk a slide into a Second Cold War however menacing such a reality would undoubtedly turn out to be.

 

How are we to explain this inability of Democrats to follow through on a foreign policy that is linked to law and ethics, as well as to show respect for the authority of the UN, World Court, Human Rights Council, and above all, the UN Charter? Such a question can be partly answered by noticing the gap between Obama the national campaigner and Obama the elected president expected to govern in the face of a hostile and reaction Congress and a corporatized media. In effect, it is the government bureaucracy and the special interest groups especially those linked to Wall Street, the Pentagon, guns, and Israel that call the shots in Washington, and it is expected that a politician once elected will forget the wellbeing of the American people as a whole on most issues, and especially with respect to controversial foreign policy positions, if he or she hopes to remain a credible public figure. The boundaries of credibility are monitored and disciplined by the mainstream media, as interpreted to reflect the interests of the militarized and intelligence sectors of the government and the economy.

 

Obama’s disappointing record is instructive because he initially made some gestures toward an innovative and independent approach. In early 2009 he went to Prague to announce a commitment to work toward a world without nuclear weapons, but there was no tangible steps taken toward implementation, and he kept quiet to the extent that his hopes were shattered. He will finish his presidency no nearer that goal than when he was elected, and in a backward move he has even committed the country to modernizing the existing arsenal of nuclear weapons at the hefty cost of $30 billion. The only reasonable conclusion is that the nuclear weapons establishment won out, and security policy of not only this country, but the world and future generations, remains subject to nuclearism, and what this implies about our unnecessarily precarious fate as a species.

 

Obama gave a second visionary speech in Cairo a few months later in which he promised a new openness to the Islamic world, and seemed to acknowledge that the Palestinians had suffered long enough and deserved an independent state and further, that it was reasonable to expect Israel to suspend unlawful settlement expansion to generate a positive negotiating atmosphere. When the Israel lobby responded by flexing its muscles and the Netanyahu leadership in Israel made it clear that they were in charge of the American approach to ‘the peace process,’ Obama sheepishly backed off, and what followed is a dismal story of collapsed diplomacy, accelerated Israeli settlement expansion, and renewed Palestinian despair and violent resistance. The result is to leave the prospect of a sustainable peace more distant than ever. It was clear that Zionist forces are able to mount such strong pressure in Congress, the media, and Beltway think tanks that no elected official can follow a balanced approach on core issues. Perhaps, the Democrats are even more vulnerable to such pressures as their funding and political base is more dependent on support of the Jewish communities in the big cities of America.

 

Occasionally, an issue comes along that is so clearly in the national interest that Israel’s opposition can be circumvented, at least temporarily and partially. This seems to have been the case with regard to the Iran Nuclear Agreement of a year ago that enjoyed the rare support of all five permanent members of the UN Security Council plus Germany. Yet even such a positive and sensible step toward restoring peace and stability in the tormented Middle East met with intense resistance at home, even being opposed by several prominent Democratic senators who acted as if they knew on which side their toast was buttered.

 

It seems pathetic that the White House in the aftermath of going against Israel’s rigid views on Iran found it necessary to patch things up by dispatching high level emissaries to reassure Israel that the U.S. remains as committed as ever to ‘the special relationship.’ To prove this point the Obama administration is even ready to increase military assistance to Israel from an already excessive $3 billion annual amount to a scandalous $5 billion, which is properly seen as compensation for going ahead with the Iran deal in the face of Israel opposition. Even the habitual $3 billion subsidy is in many ways outrageous given Israel’s regional military dominance, economic wellbeing, without even mentioning their refusal to take reasonable steps toward achieving a sustainable peace, which would greatly facilitate wider the pursuit of wider American goals in the Middle East. It is past time for American taxpayers to protest such misuses of government revenues, especially given the austerity budget at home, the decaying domestic infrastructure, and the anti-Americanism among the peoples of the Middle East that is partly a consequence of our long one-sided support for Israel and related insensitivity to the Palestinian ordeal.

 

True, the Democrats do push slightly harder to find diplomatic alternatives to war than Republicans, although Obama appointed hard liners to the key foreign policy positions. Hilary Clinton was made Secretary of State despite her pro-intervention views, or maybe because of them. Democrats seem to feel a habitual need to firm up their militarist credentials, and reassure the powerful ‘deep state’ in Washington of their readiness to use force in pursuit of American interests around the world. In contrast, Republicans are sitting pretty, being certified hawks on foreign policy without any need to prove repeatedly their toughness. Until George W. Bush came along it did seem that Democrats started the most serious war since 1945, and it took a Republican warmonger to end it, and even more daringly, finally to normalize relations with Communist China, a self-interested move long overdue and delayed for decades by anti-Communist ideological fervor and the once powerful ‘China Lobby.’

 

Looking ahead there is little reason to expect much departure if a Democrat is elected the next American president in 2016. Clinton has already tipped her hand in a recent speech to the Council on Foreign Relations, the self-anointed voice of the East Coast American establishment. She promised more air strikes and a no fly zone in Syria and a more aggressive approach toward ISIS. Such slippery slopes usually morph into major warfare, with devastating results for the country where the violence is situated and no greater likelihood of a positive political outcome as understood in Washington. If we consider the main theaters of American interventionary engagement in the 21st century, including Afghanistan, Iraq, and Libya we find the perplexing combination of battlefield dominance and political defeat. It is dismaying that neither Clinton nor lead foreign policy advisors are willing to examine critically this past record of frustration and defeat, and seem ready for more of the same, or as it now expressed, ‘doubling down.’ We should not forget that Clinton was the most ardent advocate of the disastrous intervention in Libya, and mainly unrepentant about her support of the Iraq War, which should shock even her most committed backers, considering that it was the most costly mistake and international crime since Vietnam.

 

Ever since the Vietnam War political leaders and military commanders have tried to overcome this record of failed interventionism, forever seeking new doctrines and weapons that will deliver victory to the United States when it fights wars against peoples living in distant lands of the Global South. Democrats along with Republicans have tried to overcome the dismal experience of intervention by opting for a professional army and total reliance on air tactics and special forces operations so as to reduce conditions giving rise to the sort of robust anti-war movement that dogged the diehard advocates of the Vietnam War in its latter stages. The government has also taken a number of steps to achieve a more supportive media through ‘embedding’ journalists with American forces in the fields of battle. These kinds of adjustment were supposed to address the extreme militarist complaint that the Vietnam War was not lost on the battlefields of combat, but on the TV screens in American living rooms who watched the coffins being unloaded when returned home.

 

Despite these adjustments it has not helped the U.S. reached its goals overseas. America still ends up frustrated and thwarted. This inability to learn from past mistakes really disguises an unwillingness that expresses a reluctance or inability to challenge the powers that be, especially in the area of war and peace. As a result not only is foreign policy stuck adhering to deficient policies with a near certainty of future failure, but democracy takes a big hit because the critical debate so essential in a truly free society is suppressed or so muted as to politically irrelevant. Since 9/11 this suppression has been reinforced by enhanced intrusions on the rights of the citizenry, a process supported as uncritically by Democrats as by the other party. Again it is evident that the unaccountable deep state wields a big stick!

 

This is the Rubicon that no Democrat, including even Bernie Sanders, has dared yet to cross: The acknowledgement that military intervention no longer works and should not be the first line of response to challenges emerging overseas, especially in the Middle East. The forces of national resistance in country after country in the South outlast their Northern interveners despite being militarily inferior. This is the major unlearned lesson of the wars waged against European colonialism, and then against the United States in Vietnam, and still later in Afghanistan, Iraq, and Libya. The balance of forces in the Global South has decisively shifted against a military reading of history that prior to the middle of the last century was the persuasive basis of defending the country against foreign enemies, as well as providing imperial ambitions with a cost efficient means to gain access to resources and market in underdeveloped parts of the world. National resistance movements have learned since 1945 that they are able to prevail, although sometimes at a great cost, because they have more patience and more at stake. As the Afghan saying goes, “You have the watches, we have the time.”

 

The intervening side shapes its foreign policy by a crude cost/benefit calculus, and at some point, the effort does not seem worth the cost in lives and resources, and is brought to an end. For the national resistance side the difference between winning and losing for a mobilized population is nearly absolute, and so the costs however high seem never too high. The most coherent intervention initiated by the Obama presidency in 2011 did succeed in driving a hostile dictatorship from power, but what resulted was the opposite of what was intended and expected by Washington: chaos and a country run by warring and murderous tribal militias. In other words, military intervention has become more destructive than ever, and yet its political goals of stability and a friendly atmosphere remain even more elusive than previously.

 

For Democrats to have an approach that learns from this experience in the period since the end of World War II would require leveling with American people on two main points: (1) military intervention generally does not reach its proclaimed goals unless mandated by the UN Security Council and carried out in a manner consistent with international law; and (2) the human concerns and national interests of the country are better protected in this century by deferring to the dynamics of self-determination even if the result are not always in keeping with American strategic goals and national values. Such a foreign policy reset would not always yield results that the leaders and public like, but it is preferable to the tried and tested alternatives that have failed so often with resulting heavy burdens. Adopting such a self-determination approach is likely to diminish violence, enhance the role of diplomacy, and reduce the massive displacement of persons that is responsible for the wrenching current humanitarian crises of migration and the ugly extremist violence that hits back at the Middle East interveners in a merciless and horrifying manner as was the case in the November 13th attacks in Paris.

 

Despite these assessments when, hopefully, a Democrat is elected in 2016, which on balance remains the preferable lesser of evils outcome, she has already announced her readiness to continue with the same failed policy, but even worse, to increase its intensity. Despite such a militarist resolve there is every reason to expect the same dismal results, both strategically and humanly. The unfortunate political reality is that even Democratic politicians find it easier to go along with such a discredited approach than risk the backlash that world occur if less military policies were advocated and embraced. We must not avoid an awareness that our governmental security dynamics is confined to an iron cage of militarism that is utterly incapable of adjusting to failure and its own wrongdoing.

 

We must ask ourselves why do liberal minded Democratic politicians, especially once in office follow blindly militarist policies that have failed in the past and give every indication of doing even worse in the future because the international resistance side is more extremist and becoming better organized. Dwight Eisenhower, incidentally a Republican, gave the most direct answer more than 50 years ago—what he called ‘the military-industrial complex,’ that lethal synergy between government and capital. Such a reality has become a toxic parasite that preys upon our democratic polity, and has been augmented over the years by intelligence services, the corporatization of the media and universities, public policy institutes, and lobbies that have turned Congress into a complicit issuer of rubber stamps as requested.

Under these conditions we have to ask ourselves ‘What would have to happen to enable a presidential candidate of the Democratic Party to depart from the foreign policy failures of the past? That is, to escape from the cage within which foreign policy is now imprisoned: Nothing less than a transforming of the governing process from below that would sweep away this parasitical burden that is ever

more deforming the republic and spreading suffering and resentment to all corners of the planet. American foreign policy is having these harmful effects at a time when decent people of all parties should be exerting their political imagination to the utmost to meet the unprecedented challenges mounted by the accumulating dangers of climate change and the moral disgrace of mounting extreme economic inequalities despite as many as 3 billion people living on less than $2.50 per day.

 

Not only is the Democratic Party failing the nation by its refusal to meet the modest first principle of Florence Nightingale—‘do no harm’—but it is not rising to the deeper and more dangerous threats to future wellbeing and sustainability directed at the nation and the ecological health of the planet, and also of menace to peoples everywhere. What the United States does and does not do reverberates across the globe. Political responsibility in the 21st century does not stop at the border, and certainly is not fulfilled by walls and drones. If political parties cannot protect us, then it is up to the people to mount the barricades, but this too looks farfetched when the most vital form of populism now seems to be of a proto-fascist variety activated so viciously by the candidacy of Donald Trump, and reinforced more politely by his main Republican rivals.