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Burning Amazonia, Denying Climate Change, Devastating Syria, Starving Yemen, Ignoring Kashmir

5 Sep

Burning Amazonia, Denying Climate Change, Devastating Syria, Starving Yemen, Ignoring Kashmir

 

The World Order Backdrop

 

Arguably, even before the atom bomb was dropped on Hiroshima, there was a widespread sense that a state-centric form of world order was morally and functionally deficient in certain fundamental respects. Political actors were indifferent to the outbreaks of war, disease, and famine outside of their sovereign territory absent serious extraterritorial reverberations. At the same time lesser states were vulnerable to the manipulations and territorial/imperial ambitions of leading states that generated colonialism, interventions, and sustained an exploitative Europeanization of world order. World War I with massive casualties, closely followed by the Russian Revolution, which posed a normative challenge to the capitalist/market driven organization of national societies, led to some groping toward a new global order taking the institutional form of the League of Nations. It became soon obvious that the League, a project of idealists, was not endowed with the capabilities, independence, and authority needed for success, and its failure to bring peace to the world did not surprise the political leaders of major countries and even less, their realist advisors.

 

Then came World War II with estimated casualties of 60 million and the future gravely menaced by the advent of the nuclear age, and the recognition became more widespread, including among political classes, that global reform was indispensable if catastrophe was to be avoided. The United Nations emerged in this atmosphere of urgency, conceived to correct the shortcomings of the League while recognizing and incorporating the geopolitical realities of inequalities among states when it comes to political and economic power and diplomatic influence. The predominant Western understanding in 1945 was that to make the UN operationally relevant it would be necessary to connect geopolitics to statism in a mutually acceptable manner. This rather incoherent dualistic goal was operationalized by giving the right of veto to the five permanent members of the Security Council and in the Charter and General Assembly affirming the juridical equality of all Members, whether small or large sovereign states. There were also parallel worries n 1945 as serious as the impulse to achieve war prevention. It was widely believed in the West that effective global mechanisms were needed to avoid a new worldwide economic depression, which was translated into political reality through the establishment of the World Bank, IMF, and later, the World Trade Organization that also had a dual mission of regulating and promoting global market forces.

 

The UN lacked sufficient financial independence and political autonomy to fulfill the promise of the idealistic vision of the Preamble to the UN Charter. This vision of war prevention was blocked geopolitically by the political behavior of states enjoying a right of veto and juridically by the primacy accorded nationalinterests of all Members. The result, as evidenced by the failure to remove threats of nuclear weapons, climate change, and global migration, demonstrated the UN’s inability to protect either globalor human(that is, species) interests. In such an atmosphere, the drift toward catastrophe continues, hastened by hyper-nationalism, escapism, denialism, and short-termism. This drift is currently accelerated by the hyper-nationalism of leading states, including the United States, that earlier offered some incidental support for global and human interests, expressive of its hybrid approach to global leadership, which featured both selfish and benevolent motivations. This meant combining the pursuit of self-aggrandizing goals with the pursuit of a somewhat enlightened and pragmatic view of its global leadership role, sometimes called ‘liberal internationalism.’ Such an approach favored mutually beneficial forms of international cooperation, human rights, environmentalism, and disaster relief, while simultaneously accommodating geopolitical goals as achieved by intervention and a selective instrumentalization of international law and the UN, which meant using law and the UN when supportive of foreign policy, while ignoring or opposing when obstructive.

 

In effect, the sovereign territoriality of all states prevailed in the organization of international life so long as the strategic, ideological, corporate, and financial interests of geopolitical actors were not serious threatened adversely affected by internal developments. The UN Charter recognized this in Article 2(7) by prohibiting the Organization from intervening in matters ‘essentially within the domestic jurisdiction’ of Member states unless international peace and security were affected. In this spirit, environmental issues have never been seen as providing sufficient grounds for intervention by the UN or geopolitical actors. As a matter of international law intervention by states is prohibited by contemporary international law, although opportunistic exceptions exist, and violations and geopolitical interpretatons of the norm occur.

 

There exists a doctrine of ‘humanitarian intervention’ and a norm mandating ‘a right to protect’ (R2P), but no claim or practice associated with ‘environmental’ or ‘ecological’ transnatonal intervention, and no norm formulated in light of a ‘right to protect humanity.’ And so the fires in Brazil (and Africa) continue to burn, a rhetoric of widespread disapproval reaches the stars, but no coercive action is even proposed beyond some expressions of reluctance to cooperate economically or halfhearted recommendatios to boycott of certain agricultural exports. The Brazilian response has produced exclamations of ‘national sovereignty’ and some cosmetic reassurances that matters are under control, despite the continuing billowing of clouds of smoke so dark as to obscure the sun as far 1,700 miles away in the huge city of Sao Paulo. Finally, nominally bowing to international pressures, Bolsonaro finally dispatched 700 troops to help with firefighting in the Amazon, but such a move seemed nominal and too belated to undo the damage being daily done by the raging fires in the forest areas.

 

 

Amazonia, Syria, Yemen, and Kashmir

 

What these issues have in common is the inability of the global system of authority to save these national populations from experiencing prolonged tragedy as a result of the criminal behavior of the territorial government and, in some instances, its insurgent adversaries. It is a central deficiency of world order as a system of political control as assessed from a humanistic perspective, and is reinforced by the geopolitical maneuvers of leading states. The political will to act effectively is shaped by nationalist motivations and by more material concerns involving territory, markets, resources, and population identities, with the concern for the avoidance of mass suffering pretty much confined to angry or pleading rhetoric. In effect, principles of international law and the authority UN are ineffectual unless backed by political will or activated by a robust political movement. For Syria, Yemen, these tragic happenings impact upon the society of people, while for Kashmir, the Indian repudiation of Kashmiri autonomy threatens a war between two nuclear weapons states, as well as gives rise to severe state/society tensions.

 

The 2127 fires ablaze in the Amazon are different. Burning Amazonia affects the world by endangering the world’s largest rain forest. It is the latest manifestation of ecological insensitivity by leaders of important countries, in this case, Brazil. Such an extreme degree of insensitivity is not only responsible for massive human suffering by way of displacement and disruption, it also weakens the carbon cycle and lessens biodiversity. The increased concerns about these fires are linked to the 278% in deforestation over the prior year, and to a Brazilian political leadership that makes no secret of its hostility to environmentalism, blaming its critics for drawing attention to these occurrences to discredit the Bolsonaro government, a way of discrediting Brazil’s supposedly justifiable emphasis on economic development and investment opportunity.

 

The Environmental Minister of Brazil, Ricardo Selles sought to deflect criticism, attributing the surge in fires to weather, wind, and heat, that is, as arising from natural causes rather than government policies. He pointed out, correctly, that many of the fires were annual efforts by cattle ranchers, farmers, and loggers to clear their land, a routine agricultural practice. Bolsonaro went so far as to suggest that environmental NGOs might have deliberately set the fires to bring disrepute to the government, and he angrily resisted attempts by the French president, Emmanuel Macron, to internationalize the Amazon fires. There may be an element of truth in these defensive assertions, but they fail to address the real ecological done by those fires in the forest areas of the Amazon that have been deliberately set to make way for soy crops, cattle, and more profitable logging.

 

Despite ‘the fog of ecocide,’ this much is clear. The rainforests of the Amazonia, sub-Sahraran Africa, and Borneo/Indonesia are indispensable ecological resources of the planet whose managerial control should not be left entirely to national discretion as exercised by governments, often on the basis of economistic and short-term policy goals, which is currently almost invariably the case. This statist sovereignty approach not only puts at risk the planet’s largest carbon sink and most valued source of biodiversity, as well as disrupting and imperiling the lives of 20 million or more people, mostly indigenous communities, living in Amazonia. Forest experts warn that once a rainforest is degraded beyond a certain point, a tipping point is reached, and the degrading will continue of its own accord until what was once a flourishing rainforest becomes a huge area savannah grasslands. Even before tipping points are reached it takes decades to restore forest ecosystems, including precious biodiversity resources. This dynamic of disastrous mismanagement is accentuated with respect to Amazonia by the Brazilian leadership that ignores pleas from indigenous and riverine communities, as well as environmental groups in Brazil, and the UN and the EU at a time when the planet’s eco-stability depends on planting billions of trees annually, and is further jeopardized by large scale deforestation that cuts deeply into the population of carbon-absorbing trees. Of course, ecological irresponsibility has become for the autocrats who now rule the world their perverse norm of political correctness, led by the climate deniers in Washington that are setting retrograde standards for American environmental policy during the Trump presidency. If the richest country in the world is so irresponsible as to embrace climate change denialism, withdraw from negotiated international arrangements, and make national policy on this basis, what can we reasonably expect from poorer more economically challenged developmentally preoccupied countries? The world order crisis is real, severe, intensifying, and unprecedented in scale and scope.

 

 

Legalistic Exercises in Futility

 

One of the most progressive and persuasive contemporary advocates of a law-based approach to world order and U.S. foreign policy has been that of Marjorie Cohn, a friend and more than that, a comrade. She has responded to the fires in the Amazon in a well-sourced opinion piece whose thesis is conveyed by its title “The UN Could Save the Amazon With One Simple Move,” [Truthdig,  Sept. 1, 2019] She points out that the UN Security Council can declare that the Amazon fires are a threat to international peace and security, and that Brazil should be the target of economic punitive measures to coerce responsible environmental policies, pointing out that the UN did this with good effect as part of the global anti-apartheid movement [See Security Council Resolution 585, 586, 587, 1985] Cohn also calls attention to Articles 25 and 49 of the UN Charter which commits Member states to implement Security Council decisions. Such an analysis is completely valid as far as it goes. A coherent legal framework exists within the UN System that could be used to exert unlimited pressure on Brazil to act in an ecologically responsible manner with respect to Amazonia, but there is one vital element missing—the political will of the main geopolitical actors.

 

It is often overlooked that the UN never was never intended to offer the world an unconditional endorsement of a global rule of law. By its constitutional character, it was established as an institution that was expected to juggle the requirements of global law and order with geopolitical priorities. Such was the clear function of the right of veto given to the five permanent members of the Security Council. It was hoped by those of idealistic disposition that the wartime anti-fascist alliance would persist in a peaceful world, especially as the special status within the Organization was given only to the five states regarded as the victors in World War II. But it was the realists who shaped the will of the geopolitical actors, then and now, and they never for a moment endorsed a global security system resting on law and Charter principles. Indeed, they derided it. The realist consensus, associated with such policy-oriented intellectuals as Dean Acheson, George Kennan, Henry Kissinger, and Zbigniew Brzezinski knew better, believing that national and global security rested, as supposedly always had and always will on balance of power mechanisms, military capabilities, pragmatic leadership, and calculations of national interests. With the partial exception of Kennan none of those figures inhabiting the realist pantheon had the slightest interest in or respect for those who encouraged a framing of global policy by reference to human wellbeing, global justice, or ecological sustainability. In the present global mix, it is only France, a geopolitical lightweight that has dared to raise its voice above the level of a whisper to urge that the extraterritorial repercussions of the Amazon fires justify a global response, but even Macron is quite timid, relying on diplomatic discourse, offers of economic assistance, and the policy venues of the European Community and the G-7. He is too tied to the realist camp to encourage reliance on international law or the UN, and gives not even a hint that the French government would favor punitive action. Even this small French gesture of concern is too much for Donald Trump who complains that Bolsonaro was not being properly consulted while Brazilian internal policy is under consideration.

 

It is perhaps true that the UN could save Amazonia if the political will to do so existed, but it doesn’t, which sadly means that the UN is irrelevant, which is even more true than in the past, given the ultra-national mood now prevailing among geopolitical actors. We might ask what would Obama or Carter have done differently. Probably, not much without a robust global civil society movement that was itself advocating change and drastic measures. It should be remembered that the UN joined, rather than initiated, the anti-apartheid campaign in the 1980s, and that the geopolitical actors in the West went reluctantly along, not because of their antipathy to racism, but because of grassroots agitation in their own societies. In this connection it should be remembered that the U.S. and Britain vetoed UN calls for mandatoryeconomic measures to be lifted only when South Africa agreed to abandon apartheid, and abstained on other resolutions. [See NY Times, July 27, 1945]

  

 

 

What is the Question?

 

In my view, the crisis of Amazonia Burning, makes us more aware of the structural deficiencies of world order that existed ever since sovereign states claimed authority over the entire land mass of the planet as allocated to governmental authorities through the device of internationally recognized boundaries, yet the environmental and ecological issues raised were largely containable within national, regional, and even global frameworks (including world wars). This approach to the territorial allocation of authority and responsibility is supplemented by a highly permissive approach to the world’s oceans by way of freedom of all states to make almost unrestricted use, including naval operations, with minimal procedures for accountability in the absence of specific agreements (as exist, for instance, in the form of prohibitions on most whaling, and many other matters of common concern). Perhaps, the most untenable use of the oceans occurred in the decades after World War II when massive nuclear explosives designed to become warheads on weapons were extensively tested on the high seas, causing radiation to cause disease and death, especially to nearby islanders. And yet, aside from civil society protests, nothing was done by the UN or elsewhere, undoubtedly in part because the main culprit was the leading geopolitical actor. Only after a worldwide civil society protest did governments respond by negotiating the Limited Test Ban, which itself was never fully implemented.

 

With the use of atomic bombs in 1945, and their later development and spread, the core stability of statist world order—also, known as Westphalian world order—began to fray. With the buildup of greenhouse gasses and the decline of biodiversity that process has taken on a momentum of its own, which if not resisted and reversed, spells doom for the human species and much of its natural habitat.

 

We know that this bio-ethical ecological crisis cannot be overcome by appeals to international law and an ethos of international responsibility. We know also that the UN and regional organizations lack the capability or authority to override the sovereign resolve of states dedicated to maximizing national interests, being especially inhibited by the geopolitical actors who have the authority to block decisions in the Security Council. We also have become aware that these essentially structural features of world order exert additional negative influences as a result of failures of global leadership to mitigate world order deficiencies by acting to some extent in the global interest or to react empathetically to the peoples victimized by internal oppression. In an earlier period, this supplemental structural element associated with global leadership helped generate such beneficial arrangements as the public order of the oceans and of Antarctica and more recently the 2015 Paris Agreement on Global Warming and the Iran Nuclear Agreement. It would be a mistake to exaggerate the contribution of global leadership, or overlook its negative impacts, which always accorded geopolitical concerns the highest priority, failing to rid the world of nuclear weaponry and colonialism and failing to set a positive example by shows of respect for international law and the UN.

 

Efforts to overcome these deficiencies have been a characteristic of reformist initiatives and transformative proposals ever since the end of World War II. A dramatic initiative took place with the formation of the Non-Aligned Movement as an outgrowth of the Bandung Conference in 19  . Reflecting developmental priorities and a post-colonial naïve sense of global ethical consciousness, the Third World configuration of non-Western state actors put forward a broad platform under the rubric of The New International Economic Order. And more recently, the UN International Convention on the Prohibition of Nuclear Weapons highlighted both the concerns of non-nuclear weapons states and the dismaying irresponsible offsetting pushback by geopolitical Western actors determined to retain nuclearism. In effect, overcoming the deficiencies of world order have failed when undertaken by governments or under the auspices of the UN. Reformist initiatives supported by geopolitical actors have done somewhat better due to their policymaking leverage, but do not seek changes that are inconsistent with their short-termgeopolitical interests. Hence, the failure to realize the vision of a world without nuclear weaponry, to achieve environmental regulations as a level responsive to the consensus among climate scientists, and to address a long list of extraterritorial problems that would be treated differently if approached from perspectives of global rather than national interests.

 

What is suggested, is the dependence of human wellbeing on the emergence of a transnational activist movement that demands major structural reforms of world order that

seek a favorable resolution of the bio-ethical crisis. If this seems utopian, you are

quite right to react as if there is no plausible path leading from here to there. Yet I believe it is more illuminating to insist that activating the utopian imagination is the only source of a transformed realism that is sensitive to the distinctive challenges and opportunities of the 21stcentury. Adhering the premises of 20thcentury realism is increasingly a recipe for disaster as the tragedy of Amazonia Burning illustrates, a metaphor for the losing struggle to save life, health, and sanity on planet earth. And while Yemen, Syria, and Kashmir do not threaten the planet’s material viability, the failure to address these massive assaults on human dignity and human rights exhibit the spiritual impoverishment of world order.

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Context Matters Except for the Palestinians

2 Aug

Context Matters Except for the Palestinians

 

Just imagine the Israeli reaction to a peace plan put forth by a future U.S. president elected to pursue the agenda of ‘the squad,’*[*]appointing Noam Chomsky, the head of CAIR, and Medea Benjamin on assuming office to lead its moves toward peace in the Middle East. Imagine further that prior to disclosing President Alexandria Ocasio-Cortez’s revolutionary peace initiative, Washington’s new leadership took the following unilateral steps: tabling a Security Council Resolution calling for the dismantling of the Israeli separation wall in accord with the 2004 Advisory Opinion of the World Court, insisting on Israeli adherence to Article 49(6) of the Fourth Geneva Conventions while calling for the prompt re-settlement of all Israeli settlers behind the 1967 Green Line, and informing Congress of its intention to discontinue further annual economic and military assistance to Israel. In addition to these ‘provocations,’ the U.S. energetically pursued a regional diplomacy with Arab neighbors designed to exert the greatest possible pressure on Israel to go along with whatever Washington proposes or suffer severe adverse consequences.

 

I know this would strike even most pro-Palestinians as an absurd way to seek sustainable and just peace arrangements, but this is precisely the road taken by the White House in its multiple acrobatic moves designed to build leverage for the Trump/Kushner ‘deal of the century.’ Even Obama’s feeble attempts to balance the scales ever so slightly brought fury to the lips of most Israelis, including its leaders. We can hardly imagine the Israeli response to a peace initiative launched by the squad along the above lines, which for all of its seeming radical character would actually be reasonable from the perspective of international law and morality even as it was causing collective apoplexy in Tel Aviv. The absurdity of this inverted ‘peace’ scenario should help us understand how extreme has been the pro-Israeli brand of extremism of the Trump White House. The fact that this has to be demonstrated rather than taken for granted underscores how victimized the Palestinian national struggle has become in the eyes of many of us in the West.

 

Equally worth observing is the discourse on the Trump diplomacy adopted by Zionist apologists, and even some anti-Trump liberals and Israeli peace activists such as Gershon Baskin. Their bad faith message to the Palestinians is along three parallel lines: “Don’t repeat past mistakes by simply rejecting Trump’s peace proposals,” “Under the circumstances, what Trump offers is the best Palestine can hope for given altered conditions on the ground and in the region,” and “Don’t reject in advance, participate, listen attentively, responding favorably to any positive elements, and project an image of constructive engagement.” Revealingly, this advice to the Palestinians is set forth without any consideration of the extreme anti-Palestinian contextcreated by a series of deliberate moves by Trump from the moment he was elected. Can you even imagine giving Israeli leadership this kind of advice if the political realities were ever to be reversed?

 

It hardly requires a vivid imagination to conjure up the expletives that would undoubtedly lend color to the most probable Israeli responses to being told what to do in comparable circumstances. The Palestinians, in contrast, are being chastised for not being receptive and refusing to come to the table with an open mind. True, the Palestinian Authority has not shown much finesse in handling the situation, relying on the sufficiency of its skeptical mumbling and an ambivalent public ‘NO.’ Better would have been an explanation along these lines, “Given the hostility toward Palestinian concerns that have been a trademark of the Trump presidency since its beginning, how can anyone in their right mind expect us to be so foolish as to pretend that there exists any basis for exploring the Trump/Kushner proposals as if they might offer a fair resolution of our long struggle for the most basic rights of the Palestinian people?” Sitting down in such a tilted diplomatic atmosphere would be the height of folly for the Palestinians, making them seem without dignity or understanding, mere puppets assembled so that their enemies could manipulate the strings.

 

Palestinians could and should have done better in setting forth their own vision of peace.  The extreme one-sidedness of the Trump approach handed Palestinians a golden opportunity to declare as convincingly as possible the urgent and immediate need for a new peace intermediary that was a facilitator, and not a partisan as past American presidents, or worse, an imposer as this one seems to be. The United States had long overplayed its hand as ‘honest broker,’ but now it had gone so far as to make any further Palestinian acceptance of the American role a source of humiliation, if not a sign of political senility.

 

It is worth noticing always, how the background of pro-Israeli objectionable behavior is treated by international commentary. When the context of justification is overlooked or repressed it usually signals an intention to persuade the audience by excluding complicating considerations, in this instance, the multiple signs that the United States has destroyed all reasonable expectations on the part of the Palestinians of fairness or objectivity in a proposed peace process. The Oslo framework as set forth in 1993 was deficient from these points of view but the deal of the century/peace from prosperity framework is so much worse, and yet it stands unrepudiated. When the context is put forward, it represents a genuine attempt to discover whether there are reasonable grounds for moving forward, and in this case there are none.

 

In the end, there is an underlying misinterpretation that has further distorted most commentary. What is being sought by Trump’s ‘peace diplomacy’ is not a political compromise that takes accounts of the basic rights of the two peoples, but a victory of one side over the other. It is an approach lightly theorized by Daniel Pipes and his confederates at the Middle East Forum, seeking to justify and advocate an increase of coercive U.S. and Israeli moves that will induce the Palestinians to acknowledge political defeat and submit to conditions at the behest of the Israeli victor. Thus, the success of the Trump/Netanyahu approach is not a matter of finding common ground between the two sides to form an agreement, but turning the screws of oppression so tight that the Palestinians will surrender. The approach has relied upon unilateral punitive actions supplemented by regional and global geopolitical leverage, but little direct violence beyond the endorsement of Israeli excessive force in dealing with the Great March of Return over the course of the last 68 Fridays.

 

Against this background, there exists an opportunity for responsible Palestinian leaders to do more than sit sullenly on their hands. In addition to explaining why Trump’s moves makes the traditional U.S. role unacceptable for purposes of negotiation, the Palestinians of all factions should do their utmost to set aside their disagreements, and achieve a unity of purpose, at least for the duration of their national struggle. Even more important might be, seizing the diplomatic initiative by making public a document that develops a comprehensive peace proposal that stakes out in general terms the contours of a political compromise on Jerusalem, settlements, statehood, borders, refugees, water, offshore resources, economic cooperation, security, and whatever else seems relevant. Even if only in the form of a declaration of principles, with explanatory commentary, it would manifest an intention to do more than refuse the paltry offerings that Kushner, Inc. is peddling throughout the region.  Such a positive initiative articulated by the Palestinian side is long overdue, would be of help to the Palestinians in the continuous ‘public relations war’ that may in the end be as relevant to the political struggle as the diplomatic tug of war or even resistance struggles. At this stage, nothing would give greater weight to Palestinian demands than its backing of an approach to peace that would seem so much reasonable and responsible than what is now being promoted by the Trump White House.

 

The basic point lingers. Context matters, and when it is eliminated, assessments of behavioral reasonableness are bound to be distorted and extremely misleading, especially if what is at stake is highly contested. This is particularly true for the Trump/Kushner unabashedly cruel approach to peace that can only be properly understood as placing a thin veil of deception over a concerted push to achieve an Israeli ‘victory’ while pretending to seek peace on the basis of political compromise. This emperor has no clothes! Those who care about justice must not let this happen!  

 

 

[*]‘The Squad’ is the name given to a group of four progressive Congress persons elected in 2016, and challenging the bipartisan precepts of American foreign policy. Their names are Ilhan Omar, Rashida Tlaib, Ayanna Pressley, and best known, Alexandria Ortiz-Cortiz.

Required Reading: Noura Erakat on Palestine and Law

17 Jul

[Prefatory Note: The following review was also published today by Mondoweiss, an outstanding online news and opinion service addressing important international and domestic issues, with special attention to the following: the Palestinian national struggle; Israeli denial of basic Palestinian rights; U.S. foreign policy in the Middle East; and various efforts by Palestinians to promote global solidarity initiatives, and militant Zionists and the Israeli government to discredit, and even impose punitive policies on initiatives and even advocacy critical of Israeli policies and practices.]

 

Justice for Some: Law and the Question of Palestine. By Noura Erakat. Stanford University Press, 2019.

 

I make no claim to approach this book with an open mind. Making a fuller disclosure, I acknowledge with some pride that I have endorsed Justice for Some even before it was published, and my blurb appears on its back cover. Beyond this, two months ago I took part in a book launch at George Mason University where Noura Erakat is on the faculty. My effort in this review is not to make a calm appraisal of the book’s strengths and weaknesses, but rather to celebrate it as a major scholarly contribution to the critical literature devoted to resolving the Israel/Palestine struggle in line with the dictates of justice rather than by a continuing reliance on muscular weight of subjugation as augmented by geopolitics. And accordingly, to seize this opportunity to urge a careful reading of Justice for Some by all those interested in the Palestinian struggle as well as those curious about the way law works for and against human wellbeing as revealed by its use in a sequence of historical and societal circumstances.

 

Erakat focuses on the deformations of militarism and geopolitics that have been inflicted on the Palestinian people as a whole, making readers aware of how ‘law’ and injustice have all too often collaborated through the decades. Erakat brilliantly offers readers this illuminating critical jurisprudential exposition, but she does not stop there. Justice for Somealso partakes of a constructivist methodology in the following sense. While Israel has cleverly deployed law to oppress the Palestinian people, Erakat’s text also explains to readers how law can and is being used on behalf of justice, serving the cause of Palestinian empowerment as integral to the ongoing emancipatory struggle of the Palestinian people.

 

In a sense my own partisanship on behalf of the Palestinian struggle parallels that of Erakat who makes evident from the Preface that her intention is to depict Palestinian territorial and national victimization as transparently as possible through the optic of law and human rights and to deplore the Israeli use of legal regimes, procedures, and tactics to carry forward the Zionist project at the. cruel expense of the Palestinians.

 

Justice for Somerepresents an important trend in scholarship, which seeks to combinge academic objectivity with undisguised ethical and political engagement. Such a combination of goals might seem appropriate when dealing with a struggle as poignant as Israel/Palestine, but it has not been so treated. In mainstream scholarship. The academic canon on scholarly writing continues to favor the posture of neutrality or supposed objectivity as to policy implications, which is but a professional mask worn by naïve or cynical academicians unwilling to own up to their own subjectivities of perspective. Worse than this, the Zionist influence over scholarly and media discourse on this subject-matter is so great that forthright writing of the sort contained in Erakat’s book is censored, self-censored, and attacked as ‘biased.’ For the mainstream, Erakat’s originality and the persuasiveness of her analysis is ignored if she is lucky, and if not, demeaned. Such authors are often attacked as representatives of the so-called ‘New Anti-Semitism,’ that is, a label used to discredit writing and writers critical of Israel’s policies and practices by maliciously merging criticism with hatred of Jews. This deformed equation offers us a definition of hate speech that amounts to a death sentence for freedom of expression. It is a national disgrace that American legislative bodies at the state and federal level are swallowing this kool aid!

 

It is difficult to convey Erakat’s jurisprudential originality without extensive discussion, but I will try. Much springs from her bold assertion “I argue that law is politics.” (4) By this she means, put crudely, ‘the force of law’ depends on ‘the law of force,’ that is legal rights without the capability to implement the law to some degree is without effect or its insidious effect is to give legal cover to inhumane behavior.  Or as Erakat puts it metaphorically, politics provides the wind that a sail needs for the boat to move forward. At the same time Erakat when discussing Palestinian rights and tactics is insistent that the advocacy of ‘force’ does not imply a reliance on or a call for violence. Her tactical affirmation of nonviolence becomes explicit when she discusses approvingly the political relevance of the BDS campaign as well as in her emdorsement of various efforts to discredit Israel at the United Nations and elsewhere. Overall, Erakat reasons persuasively that Israel has been more adept than the Palestinians in making effective use of law, partly because the wind is at their back due to their linkages to geopolitics, especially the United States, but also because Israeli legal experts have done their ‘legal work’ better than have the Palestinians. Erakat’s book can be read as a stimulus to Palestinians to make better use of what she calls ‘principled legal opportunism.’ (19) In a larger sense, Israel due to geopolitical backing and discourse control has succeeded in having its most flagrant international crimes including the excessive use of force, collective punishment, and state terror ‘legalized’ under rubrics of ‘security’ and ‘self-defense,’ open ended legal prerogatives inherent in the very notion of a sovereign state. In contrast, Palestinians exercising an entirely justifiable right of resistance even if exercised against military targets is internationally criminalized and Palestinian behavior is characterized as ‘acts of terror.’ Israel’s most sinister ‘legal’ trick has been to defy  international law repeatedly and flagrantly without suffering any adverse consequences. This dynamic of defying the law can be illustrated by Israel’s dismissal of the World Court Advisory Opinion of 2004 despite the agreement of 14 of the 15 judges (does it surprise anyone, that the lone dissenter was the American judge?) that building the separation wall on occupied Palestinian territory violated the basic norms of international humanitarian law, including the Geneva Conventions (1977).

 

Erakat also deserves praise by maintaining a scholarly tone while not mincing her words or becoming entrapped in the often fuzzy language of law. The question of language is crucial to her understanding of the disjunctions between law and justice that have deprived the Palestinian people, and their nation, of the basic rights for more than a century. Erakat is straightforward in a manner of very few international law scholars that the issues at stake arise can be only properly evaluated if fully contextualized historically and ideologically.  Following Anthony Anghie, and several others, Erakat deems it essential to expose the roots of modern international law as reflective of a legal framing that served to legitimate European colonialism and its practices. She provocatively extends this generalization to Israel, identifying it as the last ‘settler colonial’ state to be established. I would add that Israel was established despite the powerful anti-colonial current of history that has flowed in one direction since 1945.

 

Erakat is equally prepared to identify the Israeli prolonged occupation of Palestine following the 1967 War as having become ‘annexation.’ She also affirms the view that Israel’s manner of controlling the Palestinian people through political fragmentation and the instrumentalities of law is a form of ‘apartheid.’ In critical and constructivist approaches the avoidance of legal euphemisms is central to the central undertaking of liberating legal mechanisms from the machinations of states. What truth-telling language does is to see through the legal masquerade so as to illuminate the moral issues at stake. This linguistic surgery is a prerequisite to elucidating the relationship of law to justice and injustice not only with respect to Palestine, but in relation to particular issues, whether involving international migrants, abused minorities, or peoples denied self-determination.

 

Justice for Somehelped me realize that this core sense of law as an inevitably politicized instrument of control and resistance can be at odds with the idea that I emphasized earlier in my own legal writing, that the true meaning of legal norms can only be discerned by their proper interpretation. I argued against the Vietnam War on this basis, contending that the American role entailed uses of force in violation of the UN Charter and international law governing uses of force, and that this argument was legallysuperior to the justifications being set forth by the U.S. Government and its apologists. This regulative (or hermeneutic) paradigm reflects the rhetoric of international law and the way lawyers habitually address controversy, including the modes of legal reasoning used by judges in tribunals, whether domestic or international, to explain and justify their decisions. It is especially applicable to the use of international law in statecraft to validate or invalidate contested behavior, indirectly reflecting both the intensity of the political winds filling the sails of the ship of state, but also the sophistication and motivations of whoever is doing the lawyering, and for whom.

 

Against the background of this understanding, what Erakat seeks and achieves is less about the emancipatory interpretation of legal norms and more about allowing us to grasp the manipulative nexus that underlies international legal discourse, and shapes political patterns of control and resistance. The regulative paradigm is complementary and backgrounded as Erakat’s overriding purpose is to develop a comprehensive rationale for a political and normative paradigm that fits the reality of the Palestinian and similar struggles for basic rights, especially that of self-determination, better than do traditional approaches. These paradigms do not necessarily contradict one another, but rest on differing functions of law and lawyers in various contexts, and from a jurisprudential perspective can be looked upon as complementary. Erakat’s undertaking is less concerned with understanding the way the world is, than how it ought to be. governed, and how law and lawyering can (on cannot) make this happen. In this sense, the defining spirit of Noura Erakat’s book calls to mind that famous remark of Karl Marx: “Philosophers have hitherto only interpreted the world in various ways; the point is to change it.” [Theses on Feuerbach.

AN AMERICAN ATTACK ON IRAN WOULD BE AN UNMITIGATED DISASTER FOR THE US, IRAN AND THE WORLD: Iran War Statement

25 Jun

[Prefatory Note: The following statement on US warmongering in relation to Iran was prepared by Mark LeVine, Professor of History, University of California, Irvine and myself. Some of the early signatories are among the leading scholars in the field of Middle East Studies. Their names are listed below.

It seeks to make two major arguments: first, that the unlawful threats and coercive moves made by the United States point toward a political disaster that would include the commission of the most serious of international crimes, that of aggression via threats and uses of force that do not constitute self-defense under international law; secondly, that it is essential to shift the relationship with Iran from one based on coercive to an approach resting on restorative diplomacy involving a deliberate reversal of American Foreign Policy with the overriding objective of normalization of relations between our two countries.

If you wish to add your name to the signatories of the statement, use the link below. As there  is no space for affiliation, I suggest putting your first and last name in the first blank space, and your affiliation in the space reserved for last name.]

https://secure.avaaz.org/en/community_petitions/President_Trump_An_American_Attack_on_Iran_Would_be_an_Unmitigated_Disaster_for_the_US_Iran_and_the_World/details/

 

 

 

AN AMERICAN ATTACK ON IRAN WOULD BE

AN UNMITIGATED DISASTER FOR THE US, IRAN AND THE WORLD

 

Statement by leading Middle East/Islamic studies scholars, June 22, 2019

We, the undersigned scholars of the Middle East and North Africa and broader Muslim world, call on President Trump immediately to pull back from the brink of a war with the Islamic Republic of Iran. It is clear to us that the human, diplomatic, legal, political, and economic costs to both countries, the Persian Gulf and larger Middle East, the global economy and the global system of international humanitarian law of a US attack would be even more devastating than was the US invasion of Iraq sixteen years ago. We call upon the political leadership of the country, with a sense of urgency, not only to refrain from any further threats and uses of force against Iran, but also to put forward a new American diplomacy that takes steps to achieve a sustainable peace between our two countries and within the larger region.

 

We bring to the public’s attention the following points:

 

– The US-led Iraqi invasion, whose financial toll has exceeded $2 trillion in the US and at least that much in its adverse economic impact on the affected countries, led to the deaths of over 600,000 Iraqis, largely destroyed the Iraqi state and much of the country’s infrastructure, produced devastating immediate and long-term impact on the health of Iraqis and the environment, directly contributed to the rise of the Islamic State and its conquest and occupation and destruction of a huge swath of Iraq and neighboring countries (especially Syria), and produced a series of governments in the region which, even when there is a veneer of democracy, are incredibly corrupt and unable effectively to govern fractured societies, while continuing routinely to commit large scale human rights violations against their citizens.

 

– Like the Iraqi invasion before it, an attack on Iran under the present circumstances would be a clear violation of international law–a crime against peace, which is an international crime of the highest order, and delineated as such in the Nuremberg Judgement. Indeed, absent a valid claim of self-defense any attack on Iran, never mind a full-scale invasion and occupation by the United States, would violate the core articles of the UN Charter (Articles 2(4), 33, 39 & 51) as well as the legal imperative to seek a peaceful settlement of all international disputes. Such “breaches of the peace” are the most serious violations of international law a country can commit, and the US doing so again less than a generation after the Iraqi invasion would situate it outside the community of nations, making it widely regarded as a dangerous and destabilizing rogue actor whose behavior is the very opposite of the self-understanding and justifications of the Trump Administration for its actions. In this regard the recent array of threats, sanctions, and provocations are themselves flagrant violations of international law even without any direct recourse to force; only self defense against a prior armed attack across as international border legally justifies a claim of self-defense. Absent this, all threats, as well as uses of force, are considered severe violations of international law.

 

Particularly in the context of the United States’ unilateral withdrawal from the 2015 Joint Comprehensive Plan of Action, which verifiably halted the potential for Iran to pursue a nuclear weapons program, and the imposition of crippling economic sanctions against the government and people of Iran without a UN Security Council mandate, the present policy of increasing pressure on Iran and irresponsibly raising risks violent confrontation that could quickly escalate to an all-out war, coupled with the inflammatory discourse of regime change championed by National Security Advisor John Bolton and Secretary of State Mike Pompeo, constitute clear interference with Iranian sovereignty rights as well as with the inalienable right of self-determination enjoyed by the Iranian people. As such, these policies are violations of international law and of the UN Charter, inherently destabilizing, and themselves pose unacceptable threat to peace.

 

Recent events have alarmed us, demonstrating how ill-defined policy goals, bellicose rhetoric, policies and brinkmanship, and operating outside the well-defined framework of international law can easily bring countries to the brink of mutual disaster. The ongoing global impact of the Iraqi invasion (from the rise of ISIS to the aborted Arab Spring, greater support for authoritarian rulers, and the civil wars in Libya, Syria and Yemen and the massive wave of refugees these dynamics have caused) reminds us that the Middle East, and the world at large, cannot afford another major war in the region. Such a conflict would undoubtedly lead to a horrific toll of dead and injured, major environmental destruction, large scale forced migration, world-wide recession, as well as producing other equally dangerous and unintended consequences.

 

Finally, we note here that the Trump Administration’s bellicose policies towards Iran are inseparable from its uncritical and unrestrained support of authoritarian and repressive policies across the region, from the ever-deepening Israeli occupation to the Saudi and UAE war in Yemen, the destruction of democracy in Egypt and the frustration of democratic aspirations of citizens across the Middle East and North Africa, all of which contribute to the immiseration and increasingly forced migration of millions of people across the region and the unjustified repression of their legitimate aspirations for freedom, justice, democracy and sustainable development.

 

We therefore call upon President Trump, first, to pull back from any thought of an unsanctioned attack; second, to rejoin and implement the 2015 nuclear agreement; third, to terminate the enhanced sanctions he continues to impose on Iran; and fourth, to enter into immediate and good faith negotiations towards a normalization of relations with the Islamic Republic. Along with these immediate steps, we call for an honest appraisal of the costs of historic and current American policies in the Middle East and North Africa, and their reorientation towards support for freedom and democracy.

 

In the absence of these steps, we call on the US Congress to act swiftly and decisively to prevent the President from leading the United States into war, and call on our fellow academics, policymakers, diplomats, military officials, elected representatives, and concerned citizens to assert whatever pressure necessary to prevent the Administration from engaging in any kind of attack on Iran, or any other country, outside the bounds of international law and without the clear and explicit authorization of the UN Security Council.

 

Signed (partial list, as of June 21),

 

Beth Baron, Distinguished Professor, Director, Middle East and Middle Eastern American Center, Graduate Center, City University of New York, past President of the Middle East Studies Association

 

Joel Beinin, Donald J. McLachlan Professor of History and Professor of Middle East History, Emeritus Stanford University, past President of the Middle East Studies Association

 

Laurie A. Brand, Robert Grandford Wright Professor of International Relations and Middle East Studies University of Southern California, past President of the Middle East Studies Association

 

Charles E. Butterworth, Emeritus Professor, Department of Government & Politics, University of Maryland

 

Juan R. Cole, Richard P. Mitchell Collegiate Professor of History at the University of Michigan, past President of Middle East Studies Association

 

John Esposito, University Professor, Professor of Religion & International Affairs and Islamic Studies, Georgetown University, past President of the Middle East Studies Association and American Academy of Religion

 

Richard Falk, Professor of International Law Emeritus, Princeton University, former, UN Special Rapporteur on Human Rights in the Occupied Territories

 

Nader Hashemi, Professor of Middle East and Islamic Politics, Josef Korbel School of International Studies, University of Denver, Director of the Center for Middle East Studies

 

Suad Joseph, Professor of Anthropology and Women and Gender Studies at the University of California, Davis, past President of the Middle East Studies Association

 

Mark LeVine, Professor of History, UC Irvine, Chair, Program in Global Middle East Studies

 

Zachary Lockman, Professor of Middle Eastern and Islamic Studies, and History, past President of the Middle East Studies Association

 

Valentine M. Moghadam, Professor of Sociology and International Affairs, Northeastern University, past President of the Middle East Studies Association

 

Ahmad Sadri, Gorter Chair of Islamic World Studies, Professor of Sociology, Lake Forest College

 

ACTING BEYOND THE STATE: TOWARD A COSMOPOLITAN AWAKENING?

20 Jun

[Prefatory Note: The following review of Ayça Çubukçu’s For the Love of Humanityis scheduled to appear in a forthcoming issue of the London Review of International Law.]

 

ACTING BEYOND THE STATE: TOWARD A COSMOPOLITAN AWAKENING?

 

Ayça Çubukçu,For the Love of Humanity: The World Tribunal on Iraq, University of Pennsylvania Press, 2018.

 

 

Ayça Çubukçu’s For the Love of Humanity theorizes the global anti-war movement occasioned by the Iraq War of 2003 around her experience of involvement in an elaborate global initiative culminating in a tribunal established by ‘world citizens’ that held its final session in Istanbul. Beyond question, the Iraq War Tribunal (WTI) was an extraordinary undertaking from start to its finish, a worldwide non-hierarchical network of civil society activists that prior to the Istanbul finale in 2005 had organized separate tribunal sessions devoted to the Iraq War in major cities around the world including London, Seoul, Copenhagen, New York, Stockholm, several Japanese cities, Rome, Frankfurt, Genoa, Barcelona, Lisbon. Although there are many examples of prior citizen tribunalson a variety of controversial issues, none before achieved this global scale or were guided by such a grand visionary ambition.

 

The acknowledged inspirational origin of the WTI was the Bertrand Russell Tribunal organized in 1967 to document American criminality associated with its engagement in the Vietnam War. Relying on the prestige of the great British philosopher and his influential moral voice this innovative tribunal based its credibility on the participation of celebrity Western left intellectuals, with Jean-Paul Sartre serving as President.[1]What was most notable about the Russell Tribunal was the novel appropriation of a statist legal framework by private citizens for the purpose of conducting a comprehensive legal inquiry into the Vietnam War. The Tribunal secretariat gathered testimonies of witnesses and commentaries of experts, but based its authority to pass judgment largely on the reputation of its 24 prominent members, mostly men, including such iconic cultural figures as James Baldwin, Simone de Beauvoir, and Peter Weiss. Among its members was Lelio Basso, a prominent Italian jurist and legislative figure who later founded the Permanent Peoples Tribunal (PPT) in Rome on the basis of this experience, which has held many comparable sessions over the intervening years on a variety of issues that governments and the UN found too hot to handle.

 

As Ayça Çubukçushows so brilliantly, relying on an ethnographic approach, the WTI was shaped with this background in mind, but with much more organizational self-consciousness and sense of enduring purpose that any earlier civil society initiative of this kind. WTI also featured a populist, feminist, and activist organizing strategy that was very different in style and substance than all earlier tribunal initiatives that were the work of progressive elites as facilitated by a closely knit group of organizers. Çubukçurecounts, as integral to the process, the conceptual struggles among the organizers about how to address the challenge of claiming an authority to pass legal judgement not only on the behavior of powerful sovereign states but also on the criminal culpability of their leaders. The ‘law’ framing this populist venture involved a convergence of motives, chief among which is the claim that ultimate sovereignty is located in people as a belonging to nascent polity of humanity rather than the institutions of government, whether national or international. Additionally, a justification for WTI was the widely endorsed political assumption that geopolitical leverage had paralyzed international law and the UN, allowing the overriding of Iraq’s sovereign rights causing negative impacts on global justice, world peace, and the wellbeing of Iraqi people. Relying on unattributed direct quotations of the participants at a lengthy WTI organizing session, Çubukçumakes us appreciate the clarifying fact that the organizers shared an overall hostility to the Iraq War despite their realization that the US/UK intervention had toppled a cruel dictator, guilty of many crimes against humanity. In this way the mission adopted by the WTI was to accord priority to worldwide anti-war and anti-imperial goals even granting that there were some human rights benefits resulting from the invasion and occupation of Iraq.

 

This policy assessment was the backdrop for a broader, fundamental, essentially jurisprudential question about the nature of the WTI as an initiative with many of the legal trappings and pretensions of a judicial proceeding yet conducted without the presence of the defendants or any prospect of enforcement. Çubukçuis attentive to this crucial issue of how to endow the WTI with legitimacy given its lack of formal authority. The Russell Tribunal was dismissed in mainstream circles as an anti-war propaganda stunt, a kangaroo court that proceeded on the basis of pre-determined conclusions that were alleged to make a mockery of the tribunal format. At the same time, the law framing of the inquiry was believed necessary to give WTI a credibility with mainstream opponents of war and the media that it could not have achieved by way of a mere political condemnation. In effect, the WTI was claiming that its proceedings provided the public with correct interpretations of international criminal law. These interpretations filled the normative vacuum created by the political failure of the current world order system to overcome the impunity of geopoliticalwrongdoers.

 

Considering the issue more deeply, it is well to recall that the generally affirmed war crimes tribunals after World War II (at Nuremberg and Tokyo) also went forward on the basis of pre-determined results, although the defendants were present in the courtroom, accorded partial rights of defense, and the judgment reached was enforced and the defendants punished. These tribunals did receive criticism as ‘victor’s justice,’ but mainly because of impunity, that is, the crimes of the winners (e.g. strategic bombing, atomic attacks on Hiroshima, Nagasaki) were not subject to prosecution and could not even be invoked as defenses by those accused. Çubukçudiscusses in some detail the contrast between the parallel American organized trial of Iraqi leaders held under the auspices of the Iraqi High Tribunal in Baghdad and the subsequent execution of Saddam Hussein. Such a formalized judicial proceeding in Iraq was obviously intended to serve as a kind of vindicating ritual for the attack, yet compromised by impunity for the crimes of the US/UK attackers and occupiers, as well as by the bloody end game of the botched execution of Saddam Hussein. It was as much a show trial as anything done during the notorious Stalin period in the Soviet Union that also indulged in judicial escapades, and in terms of the quality of the legal assessment compared unfavorablyto the overall undertaking of the WTI.

 

What most interests Çubukçuis the challenge of using the legal scaffolding by WTI while not endowing international law with sanctity, given its historic role of upholding war and justifying imperial undertakings, including in the past European colonialism. She instructively compares the role of the Independent International Commission on Kosovo that gave a qualified endorsement to the Kosovo War with the WTI to make the point that the NATO War in 1999 set an unfortunate legal precedent for the Iraq War. In effect, international law enjoys, at best, an equivocal relationship to justice when it comes to restraining war making diplomacy of dominant states, and so should not be unconditionally affirmed.

 

In this sense, Cubukcu’s most provocative contribution is undoubtedly the quite original depiction of the driving force that animated the formation and operation of the WTI. In her striking formulation it was ‘the love of humanity.’ The thirst for legalism, a concern with justice per se, and building a global anti-war movement were all contributing factors, but as complements to the core motivation of ‘species love.’  This conclusion overrides, but does not invalidate the claims of the WTI to clarify the relevance of international law against geopolitical violators. The love of humanity encompasses the anti-war animus of a global movement that made use of a tribunal format so as continue activist opposition to the bellicose behavior of the United States that was hiding its imperial master plan behind a hypocritical commitment to protect human rights and promote democracy. In her view, the WTI, above and beyond all else was an expression of an emergent cosmopolitan ethos of species love that transcended national boundaries and could only be activated by the agency of the peoples of the world. It was this activation by the WTI that is for Çubukçuits greatest achievement, as well as constitutes the ultimate basis of its legitimacy.

 

The book ends somewhat enigmatically with a pronouncement that law and empire cannot be reliably disentangled, and for this reason law must be ‘interrogated and overturned’ in a similar progressive move that provided the stimulus to the WTI and the repudiation of the Iraq War. Instead of law, Çubukçuopts for a humanistic version of cosmopolitan populism, expressed by reference to species identity, and given a special twist by invoking the unexpected strong referent of ‘love.’ The book ends whimsically with these words: “Perhaps then, less violent and necessary may be acting for the love of humanity.” (157) We can only hope thatÇubukçu’s next ambitious book will be devoted to explicating this tantalizing sentence!

 

Part of what makes this book so impressive is that its radical vision is sustained and deepened by sophisticated reference to the ideas of many of the leading European political philosophers of the last hundred years and by a social science methodology that relies on an ethnographic record compiled by a participant-observer who doubles as author. This fine, memorable book possesses a theoretical and practical significance that extends well beyond the confines of the WTI experience.[2]Çubukçunot only observes, reports, philosophically comments, but she engages by taking sides. As such, she is part of a recent academic trend toward ‘partisan objectivity,’ disclosing openly the author’s point of view rather than pretending neutrality. For anyone concerned about political activism, transnational organizing, a new progressive agenda, international law, the ethics of resistance, and the post-colonial, post-Cold War world order this book is required reading.

 

 

 

 

]

[1]For  an account of the Russell Tribunal including a text of the proceedings see John Duffett, ed., Against the Crime of Silence (Flanders, NJ: O’Hare Books, 1968)

[2]For a comprehensive presentation of the WTI proceedings see Muge Gursoy Sokmen,World Tribunal of Iraq: Making the Case Against War(Olive Branch Press, 2008). 

Jurisprudential Notes Toward Empowering and Liberating International Law and the United Nations

2 Jun

Jurisprudential Notes Toward Empowering and Liberating International Law and the United Nations

 

  1. Two recent exceptional books, Justice for Some: Law and the Question of Palestine (2019) by Noura Erakat and For the Love of Humanity: The World Tribunal on Iraq (2018) by Ayça Çubukçboth reject the liberal trope of assuming international law is an ally with respect to their passion for justice. Law as such is a neutral instrument, historically invented to serve the purposes of the strong, and more recently seen as useful for the weak in certain settings. When law is aligned with injustice it gives rise to resistance, which historically is associated with the hallowed tradition of civil disobedience, influential with Tolstoy, Gandhi, and more recently, Martin Luther King, Jr.. In these contexts civil disobedience can involve the nonviolent transgression of any legal norm that calls attention to the specific injustice. For instance, a refusal to pay taxes or trespass on a military base are illustrative. Armed struggle may also achieve law-generating legitimacy as was the case in the decades after World War II for anti-colonial wars or wars of national liberation. So far, there is no traditional of internationalor globalcivil disobedience. In a globalizing world, transnational activism needs such a means to protest injustice. Perhaps, the purported criminalization of the BDS Campaign directed at Israel in some Western countries gives this option to activists

 

  1. David Kennedy earlier developed the argument, if I read him correctly, that a principal value of international law in war/peace contexts is to provide a familiar and accepted discoursethat facilitates communication between representatives of governments, diplomats, and other actors. This assertion is more innovative than it appears at first glance. Most of us believe the main function and test of law’s effectiveness is whether it achieves restraints on behavior on the basis of legal prohibitions. Kennedy is skeptical of the ability of international law to shape the behavior of sovereign states in war/peace contexts, yet affirms the relevance of international law to the conduct of international relations. Instead of stressing the regulation of behavior of sovereign states, Kennedy believes that international law is primarily useful for purposes of intra-governmental and inter-governmental communication, helping policymakers determine how policy should be framed and justified. The challenge for most moderate governments is to exercise their discretion in ways responsive to a range of concerns, including humanitarian, security, and strategic. For overall discussion see Kennedy, Of War and Law (2006). There is a further point. In effect, language being inherently malleable, it is always possible to interpret the law to conform to preferred policy options reflecting societal roles and normative background. For this reason, in matters that challenge major state interests law serves mainly to communicate and clarify, but lacks the political traction to restrain. Law does allow the strong to vindicate their claims of belligerent rights as in war crimes trials of the leader(s) of defeated countries. A recent instance is the trial and execution of Saddam Hussein orchestrated by the victorious law-violating aggressor.

 

  1. By contrast, in Revisiting the Vietnam War (2018) I contend that American policies in Vietnam after 1954 were unlawful in various ways, with a special stress on the U.S. extension of the combat zone in South Vietnam to North Vietnam after 1964. In effect, international law, as well as the UN Charter, sought to be regulative with respect to behavior, as well as the incidental benefit of offering a framework for discourse among diplomats. Further, that regulative intentions giving rise to such legal norms were seeking to restrict recourse to international force to situations of self-defense strictly defined. The overriding goal of the. UN Charter is war prevention. The Nicaragua Casedecided by the World Court in 1986 confirmed the view that international law governing recourse to force was regulated in a manner entirely consistent with the UN Charter core concepts of unconditional prohibition (Article 2(4)), coupled with an exception for validclaims of self-defense made dependent on the existence of “a prior armed attack” across an international boundary. (Article 51). History is relevant. When the grief and tragedy of war remained an active memory restraint followed, not only because the law so decreed but as a reflection of the psychological anti-war mood that then briefly prevailed. 

 

  1. Such a regulative view of international law rests on a premise that there are correct and incorrect (or better and worse) modes of interpretation with respect to theapplicationof legal norms. This premise does not entail a positivist approach that restricts the meaning attributed to legal norms to the language used in formal texts or customary rules. A more appropriate interpretative approach can be adopted, enlarged to take account of context, including ethical, sociological, and historical considerations. When a country has recourse to force, claimint to act in accord with its right of self-defense or contends that its uses of force are proportional and discriminate a regulative approach can disagree by offering contrary factual and interpretative evidence. The absence of authoritative interpreters of international law make theses assessments rest to a greater degree on supposedly neutral scholarly or expert opinion, which is deemed more trustworthy as not forthcoming from a partisan source. Of course, scholars disagree just as judges disagree. For this reason the selection of judges or the appraisal of scholarly merit is crucial and often determinative of ‘the law.’ The significant differences between Brett Kavanaugh and Ruth Bader Ginsberg are not vocational or analytical as much as they are normative and subjective.

 

  1. Myres McDougal in collaboration with Harold Lasswell addressed this issue of ‘normative ambiguity.’ They attempted. to resolve the challenge of authoritativeness by reference to ‘reasonable expectations’ as assessed by reference to the values at stake in a free society. As their work was rooted in the global setting of the Cold War their inclinations were to find that American foreign policy was in most instances compatible with international law as it was assumed guided by a commitment to promote free world values and by reliance on capabilities able to bring effective power to bear on the behavior of political actors. See McDougal & Florentino Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion(1961); see also McDougal & Harold D. Lasswell, “The Identification and Appraisal of Diverse Systems of World Order,” American Journal of International Law53:1 (1959). Such a jurisprudential perspective regards international law as a geopolitical instrument evaluated as good or bad by reference to the normative credentials and material capabilities of political actors. These credentials are given concrete significance by assessing the degree of adherence of a domestic public order system to the values of a free society. The West, from this point of view supposedly adhered to such values, while the Soviet bloc did not. Such a framework was deeply ideological as in contested situations, for instance, Vietnam, where the differences between the Soviet and American forms of government should not have affected the legal assessment of violations of the sovereign rights of Vietnam.

 

  1. Çubukçu explores the relevance of international law in the informal setting of a people’s tribunal established to assess the legality of the Iraq War, including the subsequent occupation of Iraq. The tribunal was charged with determining whether political leaders, military commanders, and corporate officers should be held personally accountable under international criminal law. Admittedly, this is a somewhat misleading way to conceive of the central mission of the Iraq War Tribunal. This appropriation of law by those acting on behalf of civil society are doing so on the basis of already formed judgments that reflect moral convictions. Such a peoples’ tribunal is tasked with documentingviolations of international law and international crimes, and is expected to justify conclusions of criminality, which were presumed, and motivated the effort to create such a tribunal. Such a ‘judicial’ undertaking is not motivated by a search for the proper mode of interpretation. The Tribunal’s ‘jury of conscience’ did not rest its authority on the basis of having legal experts pass judgment, although it was permissible to have such individuals participate, but only to the extent that their politics are right and their reputation as exemplary citizens is high. Putting the point differently, these kinds of civic initiatives are undertaken because of anti-war sentiments being considered applicable to the judgment of belligerent behavior being challenged and the failure of formal institutions, including the United Nations, to protect a sovereign nation, in this case Iraq, from military attack and occupation. It is not an inquiry as generally understood, but a gathering of evidence and interpretative argument to mount a challenge directed at a controversial policy of a government, usually a government that enjoys impunity with respect to its wrongdoing. The conclusions of such a tribunal is ultimately an appeal to international public opinion, but usually falls short of its goals because of limits on funding available to disseminate results and antipathy of mainstream media to these activities. These tribunals are portrayed by the media as usurping the role of formal institutions and are constituted without any acceptable constitutional mandate. The underlying question is whether civil society has any lawmaking authority deserving respect. As such tribunals challenge the new political norms of post-truth society, some view their role as benevolent, others as irrelevant if not malevolent. There is no doubt that civil society exerts an influence on public opinion with respect to issues of war/peace, including accountability for war crimes. Such influence tends to be more evident in democratic societies. Yet modern democratic states rely on extensive claims of secrecy, nationalist ideology, money, and militarism to marginalize those citizens who seek to engage more fully and critically with public policy, especially the war/peace agenda, than by voting periodically. Tribunals established by citizens is a dissident mode of participatory democracy, and more important for this reason than as a contribution to upholding the rule of law.   

 

  1. Academic international law specialists rarely acknowledge any legal, moral, and political relevance to civil society initiatives that claim a residual authority to act when governments and the UN fail to do so. In this sense, the Nuremberg and Tokyo trials after World War II also proceeded on the basis of predetermined results, but because constituted by sovereign states as represented by governments, their undertaking was generally viewed as deserving of respect. The documentation of criminality was widely regarded as an invaluable form of political education. What little criticism of these legal initiatives by academic specialists did occur focused on the fact that the crimes of the victors, including the atomic bombing of Japanese cities, were excluded even from inquiry, much less accountability. In other words, since international law is treated as subject to the statist framework of world order, non-statist initiatives to pronounce on the wrongdoing of states are dismissed as without legal relevance.

 

  1. We are confronting various kinds of partisan scholarship, some overt, some hidden. Çubukçu and Erakat are notable because they make their partisanship explicit, whereas the mainstream jurisprudential traditions, whether positivist, realist, or sociological, claim an objective approach premised on the mystique of ‘the majesty of the law.’ Or as in recent debates about the Trump presidency, rhetorical flourishes such as ‘no one is above the law’ are common yet non-operational. Even before the banner of ‘fake news’ was waved so defiantly, it was obvious that law and legal order depend more on the political and ethical outlook of the interpreter than on legal training and analytical skills or even on the aura of legitimacy surrounding governmental institutions. It is usually more helpful to know the viewpoints of the judges on the U.S. Supreme Court than knowing all about the substantive ins and outs of a legal controversy being addressed.

 

  1. Shall we also admit that the law in the books will not necessarily matter unless it is accompanied by a sufficient political willto seek and achieve implementation? In international life this political will depend heavily on the attitudes of leading geopolitical actors. In domestic society the political will is shaped by what the 20thcentury Austrian sociologist of law, Eugen Erlich, called ‘the living law,’ the values and expectations of the people as the crucial indicator of effective law.For routine matters such as tourism, diplomatic representation, maritime safety governments comply because it is convenient for them to do so, or reciprocity creates mutual benefits. When war/peace is at stake, then law tends to be sidelined by geopolitics, invoked when it serves interests, evaded or refuted when it contradicts interests. The hope after the devastating war that ended in 1945 and generated a well-founded fear that a future war would involve nuclear devastation was that it would incline the most powerful state to abandon war as an instrument of policy as a matter of law reinforced by political will. Instead geopolitical actors, above all the United States and the Soviet Union opted more for prudence than prevention, continuing to advance their interests by investing heavily in military capabilities and by pragmatic recourses to international force. This post-nuclear militarism was tempered by strong efforts to limit the scale and stakes of conflict to avoid a major war that could lead to the use of nuclear weaponry.

 

  1. The substantive context matters. The state, if corruption and incompetence can be minimized, can be relied upon to act lawfully if the subject-matter is What is treated as routine shifts with time, and reflects to some extent the ebb and flow of political outlook, but generally coincides with behavior that reflects reciprocal interests as is the case with diplomatic immunity, maritime safety, and often even treatment of prisoners of war. Geopolitical actors generally have a strong interest in stability for purposes of trade, investment, travel, and communications that depends on reliable international legal frameworks. Law collapses when there is absent a political will to implement the legal norms as is the case with respect to economic and social rights. Such norms come into existence because of widely shared moral aspirations, but lack political traction to challenge entrenched private sector interests that benefit from non-compliance as with the ‘right to food’ or the ‘right to health.’ Beyond this, the absence of an international community dedicated to human interestsas distinct from national interests makes it evident that despite economic and social rights anchored in treaty law, any sense of meaningful internationalresponsibility is almost non-existent. What international relief is forthcoming in response to famine and natural disasters is invariably voluntary, a matter of good will, rather than an expression of an obligatoryresponse.

 

11.Where asymmetries of power exist, as in competing claims of sovereign rights, with respect to the delimitation of territorial boundaries or upholding the right of self-determination, law validates grievances, motivates resistance, but cannot shape political outcomes. Asymmetries of power are conventionally associated with relative military capabilities, but this has been demonstrated to be misleading in post-1945 international relations. A major recent prominent example is the overall success of the anti-colonial movement. In case after case a mobilized popular resistance of the nation overcame the superior military capabilities of the colonial power. The exceptions to this pattern involve settler colonial societies in which the native population was exterminated or marginalized as in North America, Australia, New Zealand, or somewhat assimilated as in most of Latin America. Relative military power is still highly relevant in conflicts between states, but not in their subsequent occupation. In the instances of aggression against Afghanistan and Iraq, the military superiority of the United States prevailed in the attack phase of warfare, yet during the subsequent occupation phase it endured a political defeatthat basically nullified the military victory. In the post-colonial world, popular sovereignty when effectively mobilized as resistance can often challenge geopolitical maneuvers, upholding basic rights, but at great human cost. Legitimating resistance through law as occurred in the course of the great anti-colonial struggles of the last half of the 20thcentury may have been the greatest contribution of the United Nations to peace and justice.   

 

 

12.I will end where I began, celebrating the publication of the recent books by Çubukçu and Erakat. Çubukçu helps us better understand the complex interplay of law and war from the perspective of movement politics; the geopolitical state is the target of disapproval for its behavior—trampling on the sovereign rights of the Iraqi people by waging an unprovoked war. Erakat, in contrast, explores how law has been twisted by governments to serve geopolitical interests at the expense of basic Palestinian rights, and yet normative discourse nevertheless currently serves the struggle of the Palestinian people and strengthens the political will of transnational civil society to challenge Israel.  

 

 

 

 

 

‘The Arab International Forum for Justice for Palestine’ (Beirut, 29 July 2018)

1 Aug

‘The Arab International Forum for Justice for Palestine’ (Beirut, 29 July 2018)

 

[Prefatory Note:I was invited to attend and speak at this Forum to be held for one day in Beirut on July 29, 2018. My initial impression after experiencing a 90 minute airport line for those carrying foreign passports to gain entry to Lebanon was that the conference was incredibly disorganized. There was no program available to the participants even after the Opening Ceremony began in a packed hotel auditorium with a crowded and passionate gathering of persons dedicated to justice for Palestine, hailing from many countries, from as far away as Mumbai and San Francisco, including diplomats, religious personalities dressed in traditional garb, and those who had kept faith over the years with the Palestinian struggle. Not surprisingly, the Irish participants stirred the crowd with their fiery eloquence, and shared experience of a somewhat similar prolonged struggle. The Forum was a microcosm of what Palestinian inclusiveness looks like. I was not really surprised that Ramsey Clark was the beloved Honorary Chair of the Conference, and learned that only a recently broken hip kept him away.

 

There were many moments of personal satisfaction during my longone day visit (that seemed like three), including a warm coffee chat with Rabi’ Bashour, recalling our ESCWA experiences, and discovering that his venerable father, Maan, was the heart and soul of the Forum, both as moderator of the event and throughout the entire process from its origins. The guiding idea of the Forum is to establish a platform that is wide enough to accommodate all tendencies in the Palestinian national movement provided there is evidence of dedication to justice for the Palestinian people. This meant Fatah and Hamas in the same room, religious figures and firmly secular persons, representatives of trade unions, student organizations, prisoner and detainee family members, women’s group, members of parties from the far left and the center (I didn’t sense any right wing participation). It was the central task of the Forum to keep this symbolic expression of Palestinian unity in robust good spirits, and only secondarily, to address matters of substance. The unspoken dream of the occasion was that the success of the Forum would lead the political leaders of the now deeply divided Palestinian movement to put aside their differences and achieve sustainable unity to pursue together the far greater convergence of goals at the core of their struggle.

 

There was a call from the podium at the outset for ‘practical proposals’ rather than just ‘speeches,’ but rhetorical style is almost impossible to discipline, and so there were an assortment of speeches mainly validated by frequent emotional flourishes throughout their delivery, yet in fairness there were several promising concrete suggestions for action initiatives.

 

I came to appreciate greatly the anarchistic style of hospitality, above all by Nabil Hallak, the guiding spirit with no observable capacity for conventional organization beyond a restless vitality that made us all feel welcome, appreciated, and well cared for. Once I relaxed about the chaotic logistics enough to go with the flow I enjoyed being in such a setting, and everything important worked out somehow. It turns out Nabil has a most gracious wife, has fought in Palestinian resistance, and as a result possesses a body that was pierced by nine Israeli bullets; nevertheless, Nabil is modest about his past, projects a joy-for-life espritand has an obvious intense dedication to the Forum as an ongoing political project. He is close to Tima Issa, a TV producer in Beirut with whom I had done a program a year ago, who extended the initial invitation and made the social dimension of my brief visit both enjoyable and memorable.]

  1. There was bright sunshine throughout the entire Forum thanks to the announcement that Ahed Tamimi and her mother were released on that very day, and boldly reaffirmed their abiding commitment to resistance. This teenage Palestinian icon from the West Bank village of Nabi Saleh had completed an eight month jail term for slapping an IDF soldier after her cousin had been shot in the face. Instead of exhibiting empathy for Ahed Tamimi, Israel exhibited its vindictive approach to the Palestinian reality by jailing such a sensitive young woman rather than acting in a civilized manner by exhibiting sympathy for the normalcy of her reactions, indeed their dignity, to being a witness of such brutality by an agent of the Israeli state.

 

 

The Tamimi family were prominent resisters before ‘the slap heard  around the world.’ It was evident by the frequent reference to Ahed by speakers at the Forum that her show of defiance and youthful exuberance was worth a thousand missiles, expressing not only sumud, but also the conviction that nonviolent resistance can become transformative if adapted to the realities of an oppressive situation. Of course, not a word in theNY Timesabout Ahed’s release, while papers in Lebanon wrote complementary feature stories with sympathetic pictures of this heroine, and in every Turkish paper I saw her release was a front page story. Ahed seems comfortable with the prominence of her role despite being so young. As far as the eye can see, Ahed seems completely unintimidated by the immediate shadows cast by the harshness of Israel’s response to this totally innocent gesture of resistance.

While celebrating Ahed’s release, we should also pause to remember Razan Al-Najjar, the heroic 21-year old medic tending the wounded at the Gaza Great March of Return fatally shot on June 1st by an IDF sniper in cold blood while well apart from the demonstrators, away from the fence, dressed in easily identifiable white medical clothing, working in the vicinity of Khan Yunis.

We should also salute Dareen Tatour, fine young Palestinian poet, author of the poem ‘Resist My People, Resist Them,’ sentenced to five months in prison just now for the sin of writing defiant poetry, having only recently been released from years of house arrest, denied access to the internet, and even to her own village community.

 

 

  1. There was one feature of the Forum that made me increasingly uncomfortable as I listened to speaker after speaker pour cold water on Trump’s promise, or was it a threat, to end the conflict with ‘the deal of the century.’ When it came my turn to speak I started by admitting that I was astonished that so much attention was given to this catchy phrase used by Trump. According so much attention gave the still undisclosed U.S. proposal a political weight it didn’t deserve, and could put the Palestinians in an unnecessarily awkward, defensive, and combative position. I pointed out that Trump’s erratic approach to the world since he became president had weakened greatly the U.S. global leadership role, and that his extreme partisanship with respect to the Palestinian struggle had reduced to zero American credibility as an impartial or constructive arbiter in relation to the future of the two peoples. U.S. credibility as a peacemaker had long ago been convincingly challenged, for instance, in the devastating book by Rashid Khalidi, Brokers of Deceit, and even more comprehensively by Jeremy Hammond in his important book, `Obstacle to Peace: The US Role in the Israeli/Palestinian Conflict (2016). It seemed to me that the words ‘the deal of the century’ had entranced and bewitched this Palestinian audience, leading to a fear that Trump had put them on a road leading to a political dead end for the Palestinian aspirations, crushing their struggle by being tricked into such a spiderweb of bombastic irrelevance.

 

What the U.S. seems ready to offer, what Israeli leaders have been talking about more and more openly, is that if the Palestinians abandon their rights along with their dreams, ‘peace’ becomes possible. This includes abandoning political goals associated with the right of self-determination. If the Palestinians are so foolish as to do this, then they can become hapless beneficiaries of ‘an economic peace’ courtesy of Israel’s generosity and charitable nature. The deal of the century reduced to substance is little other than ‘geopolitical bribery,’ exchanging some dollars for inalienable rights. In such a bargain the devil is NOT in the details, but is the essence of what is being proposed. Of course, there are almost certain also to be humiliating details involving various aspects of permanent submission by the Palestinians: acceptance of uncontested Israeli control of Jerusalem, a complete denial of any right of Palestinian refugees or exiles to return, and a series of master/servant economic arrangements. My pitch at the Forum was to put ‘the deal of the century’ in its proper perspective by ignoring it, or if it must be mentioned, then reframe all references to the deal that is less a deal that an attempted diktatby identifying it as an attempt to commit ‘the crime of the century!’

 

  1. I highlighted the second observation in my presentation by quoting the opening line of Charles Dickens’ A Tale of Two Cities: “It was the best of times, it was the worst of times.” I felt this kind of interface well depicted the current situation of the Palestinians. It was the worst of times because the alignments in the Arab world together with the geopolitical forces seemed to favor the Zionist Project to an unprecedented degree. The major Arab governments were moving toward postures of ‘normalization’ with Israel without any longer insisting on the precondition of reaching a sustainable peace with the Palestinians. This regional setback weakened Palestine diplomatically, and materially. At the same time the Trump presidency has made no secret of its endorsement of maximal Zionist goals, agreeing to whatever Israel (and Saudi Arabia) wanted. Above all this involved ramping up a confrontation with Iran. Europe was unhappy with these developments, but has so far lacked the energy, incentive, and leadership to play a more balanced role so as to keep alive its supposed commitment to keep burning the barely flickering flame of ‘a two-state solution.’ In other words, from the international community of states, the best that can be hoped for at this stage, is a renewed show of support for the two-state mantra, itself moribund.

 

In sum, if Palestinian prospects are interpreted through the prism of standard international relations, the outlook is dismal, and not by chance this is the line being pursued by the Middle East Forum, an ultra-Zionist NGO. Its chosen mechanism is a rather diabolical scheme labeled ‘the victory caucus,’ which is actively recruiting, with a disturbing degree of success, members of the U.S. Congress and the Knesset. It wants the world to understand that since international diplomacy is dead and with Trump in the White House the occasion offers Israel the opportunity of adopting more muscular tactics to make the Palestinians understand that their game of resistance is over, that to avoid collective suicide there is no alternative left to the Palestine other than political surrender. And if the Palestinians are wise enough to accept this line of thinking, then they could become beneficiary of some variant of economic peace as a sign of Israeli gratitude.

 

Fortunately, this is not the true or real, much less the whole, story. Several recent developments have created new and promising opportunities for the Palestinian national movement to move its own agenda forward. These developments involve a welcome shift of the center of gravity of the Palestinian movement from reliance on inter-governmental initiatives, including those pursued at the UN, to a phase of struggle that combines new modes of Palestinian resistance with a rapidly expanding global solidarity movement. This solidarity movement is receiving a great boost in credibility as a result of the militant support that BDS campaign is receiving in South Africa. In effect, on the basis of their experience of racism, South Africa is delivering this urgent message to the world: we alone know the full horror of an apartheid regime, and what Palestinians are daily experiencing is a form of apartheid that is even worse to what we endured, and finally overcame by a struggle that combined the brave resistance of our people with solidarity of the world; although the circumstances are far different, apartheid in Israel can be overcome by a similar shift in the balance of forces due to an intensifying popular struggle neutralizing the repressive capabilities of military and police domination.

 

I mentioned two developments of particular importance in the emergence of this altered scenario of struggle. First, the Israeli nation-state law of the Jewish people that by its bluntness in asserting the exclusivity of Jewish rights in Israel, including that of self-determination, amounted to a formal adoption of an apartheid ideology by Israel in all but name. In effect, this development vindicated the conclusions of the ESCWA report on Israeli apartheid prepared by Virginia Tilley and myself that was condemned so fiercely by the Israeli ambassador, and even more so by Nikki Haley, the American ambassador at the UN, when it was released in March 2017. As the discourse at the Forum and the mainstream media now illustrate, it is no longer controversial to attribute apartheid to the particular Israeli mode of dominance imposed on Palestinians. What makes the nation-state law so politically helpful in this respect is that the relation of the Israeli state to its Palestinian minority was, although discriminatory, far more benign than their behavior toward refugees or Palestinians living under occupation in the West Bank, Jerusalem, and Gaza. Thus to acknowledge apartheid as the modus operandiin Israel itself is like a signed voluntary confession as to the character of overall domination.

 

Such an interpretation of the nation-state law is important for mobilizing popular support for more militant forms of solidarity with respect to the Palestinian people. Apartheid is an international crime, one type of crime against humanity that is set forth in Article 7 of the Statute governing the operations of the International Criminal Court, and deprives Israel of the propaganda value of claiming to be the only democracy in the Middle East.

 

The second development that creates opportunities for advancing the Palestinian struggle is the exposure of the violent nature of Israel’s control mechanisms by its reliance on grossly excessive force in calculated response to the Great March of Return. These demonstrations at and around the Gaza fence are demands to implement the most fundamental of Palestinian rights as set forth by international law. Killing unarmed demonstrators with live ammunition exposes to the world the violent nature of Israel’s structures of domination. This use of lethal force at the Gaza border recalls vividly the Sharpeville Massacre in 1960, which many commentators identified as the point of no return for South African apartheid, revealing the true racist nature of its governing process to the world.  The Gaza massacre is actually far worse than Sharpeville, as the wilfull killing has now been repeated on a series of occasions. Further, the deliberate targeting of unarmed Palestinians has been documented, including the shooting of health workers attending those wounded in temporary facilities set up at a considerable distance from the Israeli border.

 

It is the extreme character of these two developments that provides this golden opportunity to civil society activists and their organizations to mobilize wider and deeper support for the Palestinian struggle. The BDS Campaign, already in its 13thyear, becomes more central in this effort to isolate Israel internationally and emphasize the criminal illegitimacy of Israeli apartheid. It is appropriate to mention that South Africa sought to demonize opposition to its racist policies by dubbing activists as ‘terrorists’ or ‘Communists.’ Israel uses a similar rhetorical tactic by branding its critics and activists as ‘anti-Semites.’ Although Israeli apartheid is different in many aspects from South African apartheid with regard to both internal and international contexts, both instances of apartheid involve structures of subjugation based on race with the overriding purpose of maintaining domination of one race, and the victimization of the other. South African apartheid proved vulnerable to resistance and solidarity initiatives. It is my belief that the opportunity now exists, more so than ever before, to establish a comparable vulnerability with respect to Israeli apartheid.

 

It should be appreciated that the great unlearned lesson of the last half century is that military superiority has lost much of its historical agency. The colonial wars were won by the weaker side militarily. The Vietnam War was lost by the United States despite its overwhelming military superiority. The side that control the heights of legal, moral, and political opinion most usually controls the political outcome. The Palestinians have been winning the legitimacy war to achieve such control, and so now is the time for soft power militancy to finish the job.

 

  1. Despite the implicit acknowledgement of apartheid by the adoption of the nation-state law as Basic Law of Israel, that is, as not subject to change except by enactment of another law with Basic Law status, it seem helpful to reassert the relevance of the ESCWA Report. That study, arousing great controversy at the time of release, is no longer as relevant or as needed for purpose of debating whether or not Israel is an apartheid state. Even before the Basic Law innovation, the evidence of Israeli practices shows, as the Report argues, that Israel is an apartheid state. The Report remains relevant, however, to obtain a better understanding of the distinctive and comprehensive nature of Israeli apartheid.

 

For one thing, the Report examines the allegation of apartheid from the perspective of international law as it is set forth in various authoritative places, especially the 1973 ‘International Convention on the Suppression and Punishment of the International Crime of Apartheid.’ Secondly, it argues on the basis of evidence that Israeli apartheid extends to the Palestinian people as a whole, not just to those living under the dual legal systems of the West Bank or as the discriminated minority in Israel. The apartheid regime developed by Israel applies also to the refugees confined to camps in neighboring countries and to those Palestinians living in Jerusalem, which is governed as if it is already wholly incorporated into the state of Israel. We reaffirm the central conclusion of the Report that the only valid path to a sustainable peace for both peoples requires the priorrejection of the ideologyand the dismantling of the structuresof apartheid. Any other purported peace process will produce, at most, a new ceasefire, most likely, with a very short life expectancy.  A secondary conclusion is that as a matter of law, all governments and international institutions, as well as corporations and banks, have a responsibility to do their utmost to suppress the crime of apartheid as being perpetrated by the leadership of the state of Israel. It also would follow that lending assistance to Israel either materially or diplomatically is now unlawful, aiding and abetting a criminal enterprise.

 

Conclusion: The time is ripe for civil society to represent the Palestinian people in their struggle against the Israeli apartheid regime. This struggle is just and the means being pursued are legitimate. Resistance and solidarity are the vital instruments by which to challenge apartheid, and its geopolitical support structure. This was the path that led to the collapse of South African apartheid, and a similar path is now available for the Palestinian struggle.