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The Great March of Return: The Gaza Sniper Massacre  

10 Jun

The Great March of Return: The Gaza Sniper Massacre

 

“No country would act with greater restraint than Israel.”

NIKKI HALEY, U.S. Ambassador to the UN

 

 

 

[Prefatory Note: The Gaza Sniper Massacre in response to the Great Return March is one more  milestone in Palestinian resistance and yet another frightening episode in the Israeli apartheid narrative of cruel and excessive violence, a shameful sequel of crimes for which there exists no adjudicative tribunal available to the victimized party to pursue justice. The post that follows consists of juxtaposing news items, a searing opinion piece by the courageously uncompromising Israeli journalist Gideon Levy and a wide-ranging brilliant commentary by my friend, Jim Kavanaugh. The post and is dedicated to the memory of Razan al-Najjar, the brave 21year old paramedic mortally shot while tending Palestinian demonstrators wounded at or near the Gaza fence. This young woman epitomized the purity of nonviolent yet heroic resistance, an identity given historical depth by her joy for life and her supreme sacrifice imposed by sniper brutality.

 

The Israeli political leadership and military commanders must be presumed to have chosen such a display of excessive and vindictive violence for a clear political objective, which will remain undisclosed. It would seem to be taking advantage of having unlimited support from the Trump presidency and the most favorable regional political situation of their history, but we may still ask ‘to what end?’ My best guess is that the effort was designed to convince the people of Gaza, more than Hamas, that resistance, and especially unarmed resistance was futile. Without a diplomatic path and with the annexationist path wide open, Israel would benefit from a Palestinian acknowledgement that the struggle is over, and they have lost. The Great March of Return was a defiant refusal to concede defeat, no doubt angering Israel, and inflicting a major defeat in the other war—the Legitimacy War being fought for hearts and minds on the basis of seizing the high moral and political ground.

 

Finally, we need to understand that the problem of winning the Legitimacy War is mostly a struggle to have the truth heard, to have it understood on all the major issues in dispute, law and morality are aligned with the Palestinian demands, but this has so far proved politically irrelevant as geopolitics and military capabilities strongly lean in an Israeli direction. Can Palestinian resistance as reinforced by a growing global solidarity movement overcome these Israeli

advantages? Time will tell. So far the corporatized media has sided with Israel, which is a battlefield in the Legitimacy War where the Palestinians have mainly fared badly.]

 

 

 

 

 

 

(1) The Free Gaza Movement

 

Please share this news with everyone you can think of. The only way we have a hope that these brave sailors will be safe is if the news gets out. There has been very little coverage so far. This is what we have found in the past day.

 

Quds News Network·

For the first time, #Gaza will attempt to break the 12-year-long siege by sea

On Tuesday morning, ships will set sail with a number of injured Gazans and patients abroad, carrying the hopes and dreams of the Palestinian people for freedom.

Tuesday’s Gaza flotilla will coincide with the 8th anniversary of an Israeli attack on the Turkish “Mavi Marmara” flotilla, in which nine Turkish activists were killed when the Israeli navy attacked the vessel in international waters. A tenth activist died nearly four years later, succumbing to injuries sustained during the raid.

 

 

https://www.middleeastmonitor.com/20180527-gaza-boats-will-attempt-to-break-israel-navy-siege-on-tuesday/

 

https://www.reuters.com/article/us-israel-palestinians-violence/israeli-air-strikes-target-boat-moored-in-gaza-residents-idUSKCN1IO06T

 

https://www.aljazeera.com/news/2018/05/boats-carrying-gaza-patients-set-bid-break-israel-blockade-180527150238689.html

 

 

 

Greta Berlin, Co-Founder, the Free Gaza movement

 

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(2) Jonathan COOK ‘LETTER FROM NAZARETH”

The flames that killed Fathi Harb should make us all burn with guilt and shame

27 May 2018

The National – 27 May 2018

Fathi Harb should have had something to live for, not least the imminent arrival of a new baby. But last week the 21-year-old extinguished his life in an inferno of flames in central Gaza.

It is believed to be the first example of a public act of self-immolation in the enclave. Harb doused himself in petrol and set himself alight on a street in Gaza City shortly before dawn prayers during the holy month of Ramadan.

In part, Harb was driven to this terrible act of self-destruction out of despair.

After a savage, decade-long Israeli blockade by land, sea and air, Gaza is like a car running on fumes. The United Nations has repeatedly warned that the enclave will be uninhabitable within a few years.

Over that same decade, Israel has intermittently pounded Gaza into ruins, in line with the Israeli army’s Dahiya doctrine. The goal is to decimate the targeted area, turning life back to the Stone Age so that the population is too preoccupied with making ends meet to care about the struggle for freedom.

Both of these kinds of assault have had a devastating impact on inhabitants’ psychological health.

Harb would have barely remembered a time before Gaza was an open-air prison and one where a 1,000kg Israeli bomb might land near his home.

In an enclave where two-thirds of young men are unemployed, he had no hope of finding work. He could not afford a home for his young family and he was about to have another mouth to feed.

Doubtless, all of this contributed to his decision to burn himself to death.

But self-immolation is more than suicide. That can be done quietly, out of sight, less gruesomely. In fact, figures suggest that suicide rates in Gaza have rocketed in recent years.

But public self-immolation is associated with protest.

A Buddhist monk famously turned himself into a human fireball in Vietnam in 1963 in protest at the persecution of his co-religionists. Tibetans have used self-immolation to highlight Chinese oppression, Indians to decry the caste system, and Poles, Ukrainians and Czechs once used it to protest Soviet rule.

But more likely for Harb, the model was Mohamed Bouazizi, the Tunisian street vendor who set himself on fire in late 2010 after officials humiliated him once too often. His public death triggered a wave of protests across the Middle East that became the Arab Spring.

Bouazizi’s self-immolation suggests its power to set our consciences on fire. It is the ultimate act of individual self-sacrifice, one that is entirely non-violent except to the victim himself, performed altruistically in a greater, collective cause.

Who did Harb hope to speak to with his shocking act?

In part, according to his family, he was angry with the Palestinian leadership. His family was trapped in the unresolved feud between Gaza’s rulers, Hamas, and the Palestinian Authority (PA) in the West Bank. That dispute has led the PA to cut the salaries of its workers in Gaza, including Harb’s father.

But Harb undoubtedly had a larger audience in mind too.

Until a few years ago, Hamas regularly fired rockets out of the enclave in a struggle both to end Israel’s continuing colonisation of Palestinian land and to liberate the people of Gaza from their Israeli-made prison.

But the world rejected the Palestinians’ right to resist violently and condemned Hamas as “terrorists”. Israel’s series of military rampages in Gaza to silence Hamas were meekly criticised in the West as “disproportionate”.

The Palestinians of the West Bank and East Jerusalem, where there is still direct contact with Israeli Jews, usually as settlers or soldiers, watched as Gaza’s armed resistance failed to prick the world’s conscience.

So some took up the struggle as individuals, targeting Israelis or soldiers at checkpoints. They grabbed a kitchen knife to attack Israelis or soldiers at checkpoints, or rammed them with a car, bus or bulldozer.

Again, the world sided with Israel. Resistance was not only futile, it was denounced as illegitimate.

Since late March, the struggle for liberation has shifted back to Gaza. Tens of thousands of unarmed Palestinians have massed weekly close to Israel’s fence encaging them.

The protests are intended as confrontational civil disobedience, a cry to the world for help and a reminder that Palestinians are being slowly choked to death.

Israel has responded repeatedly by spraying the demonstrators with live ammunition, seriously wounding many thousands and killing more than 100. Yet again, the world has remained largely impassive.

In fact, worse still, the demonstrators have been cast as Hamas stooges. The United States ambassador to the UN, Nikki Haley, blamed the victims under occupation, saying Israel had a right to “defend its border”, while the British government claimed the protests were “hijacked by terrorists”.

None of this can have passed Harb by.

When Palestinians are told they can “protest peacefully”, western governments mean quietly, in ways that Israel can ignore, in ways that will not trouble consciences or require any action.

In Gaza, the Israeli army is renewing the Dahiya doctrine, this time by shattering thousands of Palestinian bodies rather than infrastructure.

Harb understood only too well the West’s hypocrisy in denying Palestinians any right to meaningfully resist Israel’s campaign of destruction.

The flames that engulfed him were intended also to consume us with guilt and shame. And doubtless more in Gaza will follow his example.

Will Harb be proved right? Can the West be shamed into action?

Or will we continue blaming the victims to excuse our complicity in seven decades of outrages committed against the Palestinian people?

 

 

 

(3) The Israel Massacre Forces

 

The shooting on the Gaza border shows once again that the killing of Palestinians is accepted in Israel more lightly than the killing of mosquitoes

 

Gideon Levy

https://www.haaretz.com/opinion/.premium-the-israel-massacre-forces-1.5962852

 

 

The death counter ticked away wildly. One death every 30 minutes. Again. Another one. One more. Israel was busy preparing for the seder night. TV stations continued broadcasting their nonsense.

 

It’s not hard to imagine what would have happened if a settler had been stabbed – on-site broadcasts, throw open the studios. But in Gaza the Israel Defense Forces continued to massacre mercilessly, with a horrific rhythm, as Israel celebrated Passover.

 

If there was any concern, it was because soldiers couldn’t celebrate the seder. By nightfallthe body count had reached at least 15, all of them by live fire, with more than 750 wounded. Tanks and sharpshooters against unarmed civilians. That’s called a massacre. There’s no other word for it.

 

Comic relief was provided by the army spokesman, who announced in the evening: “A shooting attack was foiled. Two terrorists approached the fence and fired at our soldiers.” This came after the 12th Palestinian fatality and who knows how many wounded.

 

 

 

 

 

 

 

Sharpshooters fired at hundreds of civilians but two Palestinians who dared return fire at the soldiers who were massacring them are “terrorists,” their actions labeled “terror attacks” and their sentence – death. The lack of self-awareness has never sunk to such depths in the IDF.

 

As usual, the media lent its appalling support. After 15 deaths Or Heller on Channel 10 News declared that the most serious incident of the day had been the firing by the two Palestinians. Dan Margalit “saluted” the army. Israel was brainwashed again and sat down to a festive meal in a spirit of self-satisfaction. And then people recited “Pour out Thy wrath upon the nations that know Thee not,” impressed by the spread of plagues and enthusing at the mass murder of babies (the killing of the first-born Egyptians, the 10th plague).

 

Christian Good Friday and the Jewish seder night became a day of blood for the Palestinians in Gaza. You can’t even call it a war crime because there was no war there.

The test by which the IDF and the pathological indifference of public opinion should be judged is the following: What would happen if Jewish Israeli demonstrators, ultra-Orthodox or others, threatened to invade the Knesset? Would such insane live fire by tanks or sharpshooters be understood by the public? Would the murder of 15 Jewish demonstrators pass with silence? And if several dozen Palestinians managed to enter Israel, would that justify a massacre? The killing of Palestinians is accepted in Israel more lightly than the killing ofmosquitoes. There’s nothing cheaper in Israel than Palestinian blood.If there were a hundred or even a thousand deaths Israel would still “salute” the IDF. This is the army whose commander, the good and moderate Gadi Eisenkot, is received with such pride by Israelis. Of course, in the holiday media interviews, no one asked him about the anticipated massacre and no one will ask him now either.

But an army that prides itself on shooting a farmer on his land, showing the video on its website in order to intimidate Gazans; an army that pits tanks against civilians and boasts of one hundred snipers waiting for the demonstrators is an army that has lost all restraint. As if there weren’t other measures. As if the IDF had the authority or right to prevent demonstrations in Gaza, threatening bus drivers not to transport protesters in territory where the occupation has long ended, as everyone knows.

 

Despairing young men sneak in from Gaza, armed with ridiculous weapons, marching dozens of kilometers without hurting anyone, only waiting to be caught so as to escape Gaza’s poverty in an Israeli jail. This doesn’t touch anyone’s conscience either. The main thing is that the IDF proudly presents its catch. Palestinian President Mahmous Abbasis responsible for the situation in Gaza. And Hamas, of course. And Egypt. And the Arab world and the whole world. Just not Israel. It left Gaza and Israeli soldiers never commit massacres. The names were published in the evening. One man was rising from his prayers, another was shot while fleeing. The names won’t move anyone. Mohammed al-Najar, Omar Abu Samur, Ahmed Odeh, Sari Odeh, Bader al-Sabag. This space is too small, to our horror, to list all their names.

 

(4)Sacrificing Gaza: The Great March of Zionist Hypocrisy

 

By Jim KavanaghOn June 4, 2018

 

 

Photo by Jordi Bernabeu Farrús | CC BY 2.0

The Great March of Return is a startling, powerful expression of Palestinian identity and resistance. Thousands of Palestinians have come out, bravely and unapologetically, to say: “We refuse to remain invisible. We reject any attempt to assign us to the discard pile of history. We will exercise our fundamental right to go home.” They have done this unarmed, in the face of Israel’s use of deadly armed force against targets (children, press, medics) deliberately chosen to demonstrate the Jewish state’s unapologetic determination to force them back into submissive exile by any means necessary. By doing this repeatedly over the last few weeks, these incredibly brave men, women, and children have done more than decades of essays and books to strip the aura of virtue from Zionism that’s befogged Western liberals’ eyes for 70 years.

 

What the Israelis have done over the past few weeks—killingat least 112and wounding over 13,000people (332 with life-threatening injuries and 27 requiring amputation)—is a historical crime that stands alongside the Sharpeville Massacre(69 killed), Bloody Sunday(14 killed), and the Birmingham Fire Hoses and Police Dog Repressionas a defining moment in an ongoing struggle for justice and freedom. Like those events, this month’s slaughter may become a turning point for what John Pilger correctly calls“the longest occupation and resistance in modern times”—the continuing, unfinished subjugation of the Palestinian people, which, like apartheid and Jim Crow, requires constant armed repression and at least occasional episodes of extermination.

 

The American government, political parties, and media, which support and make possible this crime are disgraceful, criminal accomplices. American politicians, media, and people, who feel all aglow about professing their back-in-the-day support (actual, for some; retrospectively-imagined, for most) of the Civil-Rights movement in the American South and the anti-apartheid struggle in South Africa but continue to ignore the Palestinian struggle for justice against Zionism, because saying peep one about it might cost them some discomfort, are disgraceful, cowardly hypocrites.

You know, the millions of ant-racist #Resistors who are waiting for a quorum of Natalie Portmans and cool elite, preferably Jewish, personalities to make criticism of Israel acceptable before finding the courage to express the solidarity with the Palestinian people they’ve always had in their hearts. Back in the day, they’d be waiting for Elvis to denounce Jim Crow before deciding that it’s the right time to side with MLK, Malcolm, and Fred Hampton against Bull Connor, George Wallace, and William F. Buckley.

 

Dis/Ingenuity

 

The bankruptcy of purportedly anti-racist and humanitarian liberal-Zionist ideology and ideological institutions reached an apogee with the eruption of various apologia for Israel in the wake of this crime, not-so-subtly embedded in mealy-mouthed “regret the tragic loss of life” bleats across the mediascape. All the usual rhetorical subjects were rounded up and thrown into ideological battle: “Israel has every right to defend its borders” (NYT Editorial Board);  the “misogynists and homophobes of Hamas” orchestrated the whole thing (Bret Stephens); the protestors are either Hamas “terrorists” or Hamas-manipulated robots, to be considered “nominal civilians” (WaPo). And, of course, the recurring pièce de résistance: Human Shields!

 

Somewhere in his or her discourse, virtually every American pundit is dutifully echoing the Israeli talking pointlaid down by Benjamin Netanyahu during the Israeli attack on Gaza in 2014: that Hamas uses the “telegenically dead” to further “their cause.” The whole March of Return action is “reckless endangerment, bottomlessly cynical” (Stephens). Women and children were “dispatched” to “lead the charges” although they had been “amply forewarned…of the mortal risk.” It’s a “politics of human sacrifice” (Jonathan S. Tobinand Tom Friedman), staged by Hamas, “the terrorist group that controls [Gazans’] lives,” to “get people killed on camera.” (Matt Friedman, NYT Op-Ed). The White House, via spokesman, Raj Shah, adopts this line as its official response“The responsibility for these tragic deaths rests squarely with Hamas,” which “intentionally and cynically provoke[ed] this response” in “a gruesome… propaganda attempt.”

Shmuel Rosner takes this “human shields” trope to its ultimate “no apologies” conclusion in his notorious op-edin the NYT, “Israel Needs to Protect Its Borders. By Whatever Means Necessary.” Feeling “no need to engage in ingénue mourning,” Rosner forthrightly asserts that “Guarding the border [or whatever it is] was more important than avoiding killing.” They want human sacrifice, we’ll give ‘em human sacrifice!

 

He acknowledges that Gazans “marched because they are desperate and frustrated. Because living in Gaza is not much better than living in hell,” and that “the people of Gaza … deserve sympathy and pity.” But the Palestinians were seeking“to violate [Israel’s] territorial integrity,”so “Israel had no choice” but to “draw a line that cannot be crossed,” and kill people trying to leave that hell. It was “the only way to ultimately persuade the Palestinians to abandon the futile battle for things they cannot get (“return,” control of Jerusalem, the elimination of Israel).”The alternative ismore demonstrations — and therefore more bloodshed, mostly Palestinian.”

 

Though he acknowledges that “the interests of Palestinians are [not] at the top of the list of my priorities,” Shmuel nonetheless feels comfortable speaking on their behalf. He sincerely “believe[s] Israel’s current policy toward Gaza ultimately benefits not only Israel but also the Palestinians.”Following the wisdom of “the Jewish sages” (featuring Nick Lowe?) he opines: “Those who are kind to the cruel end up being cruel to the kind.”

 

Fear not, Shmuel, for the pitiable people of Gaza: Knesset member Avi Dichter reassuresus that the Israeli army has enough bullets for everyone. If every man, woman and child in Gaza gathers at the gate, in other words, there is a bullet for every one of them. They can all be killed, no problem.”For their ultimate benefit. Zionist tough love.

There is nothing new here. Israel has always understood the ghetto it created in Gaza. In 2004, Arnon Soffer, a Haifa University demographer and advisor to Ariel Sharon, said: “when 2.5 million people live in a closed-off Gaza, it’s going to be a human catastrophe. … The pressure at the border will be awful. … So, if we want to remain alive, we will have to kill and kill and kill. All day, every day….If we don’t kill, we will cease to exist.” And when challenged again in 2007about “Israel’s willingness to do what he prescribes… – i.e., put a bullet in the head of anyone who tries to climb over the security fence,” Soffer replied with a shrug:. “If we don’t, we’ll cease to exist.”

 

Soffer’s only plaint: “The only thing that concerns me is how to ensure that the boys and men who are going to have to do the killing will be able to return home to their families and be normal human beings.” A reprise of Golda Meir’s “shooting and crying” lament; “We can never forgive [the Arabs] for forcing us to kill their children.” Ingénue mourning, anyone?

 

We can point out the factual errors and concrete cruelties that all these apologias rely on.

We can point out that Hamas did not “orchestrate” these demonstrations, and that the thousands of Gazans who are risking their lives are not instruments. “You people always looked down at us,” one Gazan toldAmira Hass, “so it’s hard for you to understand that no one demonstrates in anyone else’s name.”

 

We can point out that the fence the Israelis are defending is not a “border” (What country are the Gazans in?), but the boundary of a ghetto, what Conservative British PM David Cameron calleda giant “prison camp” and Israeli scholar Baruch Kimmerling called“the largest concentration camp ever to exist.” It’s a camp that tens of thousands of Palestinians were forced into by the Zionist army. The right of those families (80% of Gaza’s population) to leave that confinement and go home is a basic human right and black-letter international law.

 

We can point out that Gazans aren’t just trying to cross a line in the sand, they are trying to break a siege,and that: “The blockade is by definition an act of war, imposed and enforced through armed violence. Never in history have blockade and peace existed side by side. …There is no difference in civil law between murdering a man by slow strangulation or killing him by a shot in the head.” Those were, after all, thewords ofIsraeli Foreign Minister Abba Eban, when he was justifying Israel’s attack on Egypt in 1967. And they are confirmed today by New York judge Mary McGowan Davis, who says: “The blockade of Gaza has to be lifted immediately and unconditionally.”

 

We can point out that there can be no excuse in terms of modern international law or human rights principles for Israel’s weeks-long “calculated, unlawful” (HRW) mass killing and crippling or unarmed protestors who were standing quietly, kneeling and praying, walking away, and tending to the wounded hundreds of meters from any “fence”—shootings carried out not in any “fog of war” confusion, but with precise, targeted sniper fire (which, per standard military practice, would be from two-manteams).

As the IDF bragged, in a quickly deleted tweet:  “Nothing was carried out uncontrolled; everything was accurate and measured, and we know where every bullet landed.” Indeed, as Human Rights Watch reports, senior Israeli officialsorderedsnipers to shoot demonstrators who posed no imminent threat to life, and many demonstrators were shot hundreds of meters, and walking away, from the fence.

 

We can point out that the IDF’s quick deletion of that tweet indicates its consciousness of guilt awareness, in the face of proliferating images of gruesome, unsupportable casualties, of how bad a Rosner-like “no apology, no regrets” discourse sounds. After all, it’s hard, since they “know where every bullet landed,” not to conclude the Israelis deliberately targeted journalists and medical personnel, who were never threatening to “violate [Israel’s] territorial integrity.” There have been at least 66 journalists wounded and 2 killedwearing clearly marked blue “PRESS” flak jackets. And everyone should see the powerful interviewwith Canadian doctor, Tarek Loubani, who was shot in the leg, describing how, after six weeks with no paramedic casualties, suddenly:

“in one day, 19 paramedics—18 wounded plus one killed—and myself were all injured, so—or were all shot with live ammunition. We were all… away during a lull, without smoke, without any chaos at all, and we were targeted…So, it’s very, very hard to believe that the Israelis who shot me and the Israelis who shot my other colleagues… It’s very hard to believe that they didn’t know who we were, they didn’t know what we were doing, and that they were aiming at anything else.”

 

It was on another day that this 21-year-old “nominal civilian” nurse, Razan al-Najjar, was killedby an Israeli sniper while tending to the wounded.

 

Of course, pointing all this out won’t mean anything to these apologists or to those who give them a platform. Everybody knows the ethico-political double standard at work here. No other country in the world would get away with such blatant crimes against humanity without suffering a torrent of criticism from Western politicians and media pundits, including every liberal and conservative Zionist apologist cited above. Razan’s face would be shining from every page and screen of every Western media outlet, day after day, for weeks. Even an “allied” nation would get at least a public statement or diplomatic protest; any disfavored countries would face calls for punishment ranging from economic sanctions to “humanitarian intervention.” Israel gets unconditional praisefrom America’s UN Ambassador.

Indeed, if the American government “defended” its own actual international border in this way, liberal Zionists would be on the highest of moral saddles excoriating the Trump administration for its crime against humanity. And—forgetting, as is obligatory, the thousands of heavily-armed Jewish Zionists who regularly force their way across actual international borders with impunity—if  some Arab country’s snipers killed hundreds and wounded tens of thousands of similarly unarmed Jewish Zionist men, women, children, and paraplegics who were demonstrating at an actual international border for the right to return to their biblical homeland, we all know the howling and gnashing of morally outraged teeth that would ensue from every corner of the Western political and media universe. No “Guarding the border was more important than avoiding killing” would be published in the NYT,or tolerated in polite company, for that scenario.

 

Nathan J. Robinson got to the bottom line in his wonderful shreddingof Rosner’s argument, it comes down to: “Any amount of Palestinian death, however large, was justified to prevent any amount of risk to Israelis, however small.” Western governments and media have fashioned, and are doing their utmost to sustain, an ethico-political universe where Israel canlay siege to a million people, ‘bomb them occasionally,’ and then kill them when they show up at the wall to throw rocks.”

 

Is there a way anymore of not seeing the racism of Zionism? Can we just say, once and for all, that the interests of Palestinians—not as pitiable creatures but as active, fully, enfranchised human beings—are not anywhere on the list of Soffer’s or Dichter’s or Rosner’s (or the Western media’s or governments’) priorities, and refuse any of their pitifully disingenuous expressions of concern for the Palestinians’ benefit? Nobody gets to put “For your own benefit,” in front of “Surrender or I’ll put a bullet in your head.” The onlyconcern any of these commentators have for the people of Gaza is that they submissively accept their forced displacement and imprisonment in “the largest concentration camp ever to exist.”

 

Does the vulgarity of it shock you?

 

The “human shields, human sacrifice” trope, which all these apologias hang on, is particularly mendacious and hypocritical as used by Zionists. It’s also a classic example of projection.

This is a “human shield”:

It is Israel which has repeatedly used the specific, prohibitedtactic of using children as “human shields” to protect its military forces. According tothe U.N. Committee on the Rights of the Child, Israel is guilty of the “continuous use of Palestinian children as human shields and informants.” Besides this namby-pamby UN Committee that no red-blooded American/Zionist would pay any attention to, the High Court of Justice in Israel identified and denounced the “human shield” procedures the IDF acknowledged and defended using 1,200 times. These include “the ‘neighbor procedure,’ whereby neighbors of wanted Palestinians are forced to go into the wanted man’s house ahead of troops, in case it is booby-trapped,” andIsraeli “soldiers forcibly position[ing] members of [a] family, including the children, at the windows of [a] home and proceed[ing] to fire from behind them.”

So, when Zionists use a “human shields” argument as a moral cudgel against unarmed civilian protestors, and a moral justification for a powerful army, which brazenly uses children to shield its own soldiers, killing scores of those protestors by the day—well, it’s not a stretch to see this charge is a projection of Zionists’ own pattern of thought and behavior.

 

Besides being an ongoing tactic of today’s Israeli army, “human shields” and the “human sacrifice” they imply were an integral element of the Zionist narrative—expressly articulated and embraced, with no apology, as a necessity for the establishment of a Jewish State.

 

Take a look at what Edward Said in 2001 called: “the main narrative model that [still] dominates American thinking” about Israel, and David Ben-Gurion called“as a piece of propaganda, the best thing ever written about Israel.” It’s the “’Zionist epic’…identified by many commentators as having been enormously influential in stimulating Zionismand support for Israelin the United States.” In this piece of iconic American culture, an American cultural icon—more sympathetically liberal than whom there is not—explains why he, as a Zionist, is not bluffing in his threat to blow up his ship and its 600 Jewish refugees if they are not allowed to enter the territory they want:

 

–You mean you’d still set it [200 lbs. of dynamite] off, knowing you’ve lost?…Without any regard for the lives you’d be destroying?…

Every person on this ship is a soldier. The only weapon we have to fight with is our willingness to die.

–But for what purpose?”

Call it publicity.

Publicity?

Yes, publicity. A stunt to attract attention….Does the vulgarity of it shock you?

More Zionist tough love.

 

In the face of the scurrilous “human shield” accusation against Palestinians now being used to denigrate the killed, maimed, and still-fighting protestors in Gaza, we would do well to recall Paul Newman’s Zionist-warrior, “no apology,” argument for 600 telegenically deadJewish men, women, and children as a publicity stunt to gain the sympathy of the world.

 

Lest we dismiss this as a fiction, remember that Paul Newman’s fictional boat, Exodus, is based on a real ship, the SS Patria. In 1940, the Patriawas carrying 1800 Jewish refugees from Nazi-occupied Europe whom the British authorities refused entry into Palestine. While the Patria was in the port of Haifa, it was blown up and sunk by Munya Mardoron the orders of the Haganah, which did not want Jewish refugees going anywhere but Palestine. At least 267 people were killed. The Haganah put out the story that the passengers had blown up the ship themselves – a story that lasted 17 years, nourishing the imagination of Leon Uris, author of the Exodus fiction. This wasn’t a commander or leading organization urging people to knowingly take a deadly risk in confronting a powerful enemy; it was “their” self-proclaimed army blowing its people up with no warning—and then falsely claiming they did it to themselves! Nobody who wouldn’t use “bottomlessly cynical” to denigrate the Haganah should be using it to denigrate Gazans.

 

At a crucial moment in history, it was Zionists who practiced a foundational “human shield” strategy, holding the victims of Nazism “hostage” to the Zionist “statehood” project – as none other than the publisher of the New York Times, Arthur Hays Sulzberger, recognized and criticized:

I cannot rid myself of the feeling that the unfortunate Jews of Europe’s D. P. [Displaced Persons] camps are helpless hostages for whom statehood has been made the only ransom. …[W]hy in God’s name should the fate of all these unhappy people be subordinated to the single cry of Statehood?

 

The Exodus/Patria/Paul Newman/Haganah willingness to blow up hundreds of Jewish refugees in order to force their way into a desired territory was an attitude endemic to the Zionist movement, and enunciated quite clearly by its leader, David Ben-Gurion, as early as 1938: “If I knew it was possible to save all [Jewish] children of Germany by their transfer to England and only half of them by transferring them to Eretz-Yisrael, I would choose the latter.” You want human sacrifice?…

 

(Sulzberger, by the way, “opposed political Zionism not solely because of the fate of Jewish refugees because he disliked the ‘coercive methods’ of Zionists in this country who use economic means to silence those with differing views.” Yes, the NYT!  So change is possible.)

 

What’s Right Is Wrong

 

And here’s the thing: You want to call what the Gazans did—coming out unarmed by the thousands, knowing many of them would be killed by a heavily-armed adversary determined to put them down by whatever means necessary—a “politics of human sacrifice”? You are right.

Just as you’d be right to say that of the Zionist movement, when it was weak and faced with much stronger adversaries. And just as you’d be right to say it of the unarmed, non-violent Civil Rights Movement, when it faced the rageful determination of the immensely more powerful American South, to preserve the century-old Jim Crow apartheid that wasits identity, by whatever means necessary.

 

Princeon Professor Eddie Glaude, Jr. nailed it when, to the visible discomfort of his MSNBC co-panelists, he respondedto the invocation of the White House line that it’s “all Hamas’ fault and that they’re using them as tools for propaganda,” with: “That’s like saying to the children in the Children’s March of Birmingham it was their fault that Bull Connor attacked them.”

 

Civil-rights activists did put children on the front lines, and put their own and those children’s lives in danger to fight and defeat Jim Crow. They knew there were a lot of people armed and willing to kill them. And children, as well as activists, were killed. And those actions weresupported (but by no means “orchestrated”) by “extremist” organizations—i.e., the Communist Party. At the time, conservatives attacked Freedom Riders with the same arguments that Zionists are now using to attack Gaza Return Marchers.

All unarmed, non-violent but disruptive, Gandhian strategies to eliminate entrenched systems of colonial-apartheid rule will knowingly sacrifice many lives to attain their victory. Call it a politics of human sacrifice if you want. I won’t make any ingénue objections. But it’s not a sign of the subjugated people’s cynicism; it’s a result of their predicament.

“Human sacrifice” defines the kind of choices a desperate and subjugated people are forced to make in the face of armed power they cannot yet overcome. A militarily-weak insurgent/liberation movement must use an effectively self-sacrificing strategy of moral suasion. That is now a standard and powerful weapon in political struggle. (Though moral suasion alone will not win their rights. Never has. Never will.)

 

For Gazans, it’s the choice between living in a hell of frustration, misery, insult, confinement, and slow death, or resisting and taking the high risk of instant death. It’s the choice faced by people whose “dreams are killed” by Israel’s siege and forced expulsion, and who are willing to risk their lives  “for the world’s attention.” Young men like Saber al-Gerim, for whom, “It doesn’t matter to me if they shoot me or not. Death or life — it’s the same thing.” Or the one who told Amira Hass: “We die anyway, so let it be in front of the cameras.” Or 21-year-old Fathi Harb, who burned himself to death last Sunday. Or Jihadi al-Najjar, who had to make the choice between continuing to care for his blind father (“He was my sight. He helped me in everything, from going to the bathroom to taking a shower to providing for me…I saw life through Jihadi’s eyes.”) or being killed by an Israeli sniper while, as his mother Tahani says “defending the rights of his family and his people.”

 

Tough choices, to get the world’s attention. This is the kind of choice imposed on the untermenschen of colonial-apartheid regimes. The only weapon they have is their willingness to die. But Gazans won’t get the sympathetically-anguished Paul Newman treatment. Just “bottomlessly cynical.”

 

Paul’s choice, Sophie’s choice, is now Saber’s and Jihad’s and Fathi’s, and it’s all bad. Maybe some people—comrades and allies in their struggle—have a right to say something about how to deal with that choice. But the one who doesn’t, the one who has no place to say or judge anything about that choice, is the one who is forcing it. Those who are trying to fight their way out of a living hell are not to be lectured to by the devil and his minions.

So, yes, in a very real sense, for the Palestinians, it is a politics of human sacrifice—to American liberals, the gods who control their fate.

 

By choosing unarmed, death-defying resistance, Palestinians are sacrificing their lives to assuage the faux-pacifist conscience of Americans and Europeans (particularly, I think, liberals), who have decreed from their Olympian moral heights that any other kind of resistance by these people will be struck down with devastating lightning and thunder.

 

Funny, that these are the same gods the Zionists appealed to to seize their desired homeland, and the same gods the civil-rights activists appealed to to wrest their freedom from local demons of lesser strength. Because, in their need to feel “sympathy and pity,” the sacrifice of human lives seems the only offering to which these gods might respond.

 

The Nakba Is Now

 

The Israelis and their defenders are right about something else: They cannot allow a single Gazan to cross the boundary. They know it would be a fatal blow to their colonial-supremacist hubris, and the beginning of the end of Zionism—just as Southern segregationists knew that allowing a single black child into the school was going to be the beginning of the end of Jim Crow. Palestinians gaining their basic human rights means Israeli Jews losing their special colonial privileges.

 

As Ali Abunimah points out, Arnon Soffer was right, when he said: “If we don’t kill, we will cease to exist,” and Rosner, when he said the Gazans threatened the “elimination of Israel.” To continue to exist as the colonial-apartheid polity it is, Israel must maintain strict exclusionist, “noright of return,” policies. Per Abunimah: “the price of a ‘Jewish state’ is the permanent and irrevocable violation of Palestinians’ rights…If you support Israel’s “right to exist as a Jewish state” in a country whose indigenous Palestinian people today form half the population, then you… must come to terms with the inevitability of massacres.”

 

What’s happening in Gaza is not only, as Abunimahsays, a “reminder… of the original sin of the ethnic cleansing of Palestine and the creation of a so-called Jewish state,” it is a continuation of that unfinished work of the devil. The Nakba is now.

 

 

I’m all for everybody on both sides of the issue to be aware of the stakes and risks in this struggle, without any disingenuous denials.

 

 

Whether you sympathize with, or denigrate, the choices of people who put their own, their comrades’, and even their children’s, lives at risk is not determined by whether some tactical choices can be characterized as “human shields, human sacrifice”; it’s determined by what they’re fighting for, and what and whom they are fighting against, anwhere your solidarity lies.

 

 

Stage Left

 

Here’s the core of the disagreement about Gaza (and Palestine in general): There are those—they call themselves Zionists—who think the Palestinians deserve to have been put in that concentration camp, and who stand in solidarity with the soldiers who, by whatever means necessary, are forcing them to stay there. And there are those—the growing numbers who reject Zionism—who stand in solidarity with every human being trying to get out of that camp by whatever means necessary.

 

There’s a fight—between those breaking out of the prison and those keeping them in; between those seeking equality and those enforcing ethno-religious supremacism; between the colonized and the colonizer. Pick a side. Bret Stephens, Shmuel Rosner, and Tom Friedman have. The New York Times, The Washington Post, and Breitbart have. ABC, CBS, (MS)NBC, and Fox have. The Democrats and Republicans and the Congress and the White House have. And they are not shy about it.

 

It’s past time for American progressives to clearly and unequivocally decide and declare which side they are on. It’s time for professedly humanitarian, egalitarian, pro-human rights, anti-racist, and free-speech progressives to express their support of the Palestinian struggle—on social media, in real-life conversation, and on the street.

 

It’s time to firmly reject the hypocritical discourse of those who would have been belittling any expression ofsorrow and outrage over Emmet Till, Chaney, Schwerner and Goodman, and the four black schoolgirls killed in Birmingham, while “ingénue mourning” the terrible moral quandary in which those disrupters had put Bull Connor’s boys. Don’t shrink from it, talk back to it—every time.Make them ashamed to be defending colonialism and apartheid with such patently phony arguments.

 

Politically? At a minimum, demand of any politician who seeks your vote: End the blockade of Gaza, immediately and unconditionally. Support BDS. Refuse any attempt to criminalize BDS and anti-Zionism. Stop blocking UN and ICC actions against Israeli crimes. Restrict arms sales to Israel. Reject the hypocritical Zionist apologetics. Refuse any attempt to censor or restrict the internet. (This last is very important. Nothing has threatened Zionist impunity more than the information available on the internet, and nothing is driving the demand to censor the internet more than the Zionists’ need to shut that off.)

 

This is a real, concrete, important resistance. What’ll it cost? Some social discomfort? It’s not sniper fire. Not human sacrifice. Not Saber’s choice.

 

Are we at a turning point? Some people think this year’s massacre in Gaza will finally attract a sympathetic gaze from the gods and goddesses of the Imperial City. Deliberately and methodically killing, maiming, and wounding thousands of unarmed people over weeks—well, the cruelty, the injustice, the colonialism is just too obvious to ignore any longer. And I hope that turns out to be so. And I know, Natalie Portman and Roger Waters and Shakira, and—the most serious and hopeful—the young American Jews in groups like Students for Justice in Palestine and IfNotNow. There are harbingers of change, and we must try.

I also know there is nothing new here. Thirty years ago, a doctor in Gaza said: “We will sacrifice one or two kids to the struggle — every family. What can we do? This is a generation of struggle.” It was obvious thirty years ago, and forty years before that. TheNakbawas then. The Nakbais now. Was it ever not too obvious to ignore?

My mother was an actress on Broadway, who once came to Princeton University to share the stage, and her professional skills, with Jimmy Stewart and other amateur thespians. She played the ingénue. Me, I’m not so good at that.

By all means, regarding Palestine-Israel and the sacrifices and solidarity demanded: No more ingénue politics.

 

Article printed from http://www.counterpunch.org: ‪https://www.counterpunch.org

URL to article: ‪https://www.counterpunch.org/2018/06/04/sacrificing-gaza-the-great-march-of-zionist-hypocrisy/

 

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(5) Israeli army frames slain medic Razan al-Najjar as ‘Hamas human shield’

 

 

 

Mondoweiss7 June 2018 by Jonathan Ofir –

 

Just when you thought Israel couldn’t get any lower… The Israeli army has just released an incitement video, titled “Hamas’ use of human shields must stop”, in which it frames the slain medic Razan al-Najjar as a “Hamas human shield”– a day after it claimed she was killed by accident. This is more than adding insult to injury. This is adding malice to crime. The propaganda effort is based on twisting al-Najjar’s own words. I have consulted with three Arabic experts, who have looked at the original Arabic interview from which the IDF took the “human shield” text, and it is clear to them beyond a doubt that the IDF was knowingly and cynically manipulating Razan’s words to mean something other than what she said. Bear with me, this requires close analysis: First the video features Razan throwing away a gas grenade in the field.  Obviously, this is one of the tear gas grenades fired by the Israeli army, which she is taking up and throwing to a safe distance. By this visual, the IDF is trying to create the impression that Razan is a kind of ‘combatant’. Then comes the short clip from an interview. The original interview has been found to be from Al Mayadeen News, a channel based in Beirut. The IDF video runs subtitles, saying: “I am Razan al-Najjar, I am here on the frontlines and I act as a human shield…” That’s all the IDF needs. Now, with the ominous music in the background, the IDF text states: “Hamas uses paramedics as human shields”. But the IDF cut out a very significant part of the sentence. Razan actually says: “I the Paramedic Razan al-Najjar, I am here on the Front Line acting as a human shield of safety to protect the injured at the Front Line. No one encouraged me on being a Paramedic, I encouraged myself. I wanted to take chances and help people…” (my emphasis)….

http://mondoweiss.net/2018/06/israeli-frames-najjar/

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Attacking Syria

18 Apr

Attacking Syria

 

[Prefatory Note: This post is an assessment of the recent Syrian missile attack by the armed forces of the U.S., UK, and France from a variety of perspectives. It is a modified and expanded version of a text earlier published in The Wire  (Delhi) and Il Manifesto(Rome). I intend to write two further posts suggested by the controversy generated by the airstrikes of April 14, 2018 against sites associated with Syria’s alleged chemical weapons capabilities. These strikes raise questions of international law, domestic constitutional authorization for international uses of force, strategic logic, and moral imperatives and rationalizations. Each of these issues is capable of multiple interpretations raising further concerns about the appropriate location of the authority to decide given the nature of world order in the 21stcentury.]

 

 

Preliminary Reflections

 

At this stage it seems reasonable to wonder whether Syria was attacked because it didn’tuse chemical weapons rather than because it did. That may seem strange until we remember rather weighty suspicions surrounding the main accusers, especially the White Helmets with their long standing links to the U.S. Government, and past skepticism about their inflammatory accusations that critics claim reflect fabricated evidence conveniently available at crisis moments.

 

A second irreverent puzzle is whether the dominant motive for the attack was not really about what was happening in Syria, but rather what was nothappening in the domestic politics of the attacking countries. Every student of world politics knows that when the leadership of strong states feel stressed or cornered, they look outside their borders for enemies to blame and slay, counting on transcendent feelings of national pride and patriotic unity associated with international displays of military prowess to distract the discontented folks at home, at least for awhile. All three leaders of the attacking coalition were beset by rather severe tremors of domestic discontent, making attractive the occasion for a cheap shot at Syria at the expense of international law and the UN, just to strike a responsive populist chord with their own citizenry—above all, to show the world that the West remains willing and able to strike violently at Islamic countries without fearing retaliation. Beleaguered Trump, unpopular Macron, and post-Brexit May all have low approval ratings among their own voters, and seem in free fall as leaders making them particularly dangerous internationally.

 

Of course, this last point requires clarification, and some qualification to explain the strictly limited nature of the military strike. Although the attackers wanted to claim the high moral ground as defenders of civilized limits on military actions in wartime, itself an oxymoron, they wanted even more crucially (and sensibly) to avoid escalation, carrying risks of a dangerous military encounter with Russia, and possibly Iran. As Syrian pro-interventionists have angrily pointed out in their disappointment, the attack was more in the nature of a gesture than a credible effort to influence the future behavior of the Bashar al-Assad government, much less tip the balance in the Syrian struggle against the government. As such, it strengthens the argument of those who interpret the attack as more about domestic crises of legitimacy unfolding in these illiberal democraciesthan it is about any reshaping of the Syrian ordeal, or a commitment to upholding the Chemical Weapons Convention.

 

A third line of interpretation insisting that what was said in public by the leaders and representatives of the three attacking Western powers was not the real reason that the attack was undertaken. In this optic, it is pressure from Israel to mute President Trump’s feared slide toward disengagement from Syria as a prelude to a wider strategic withdrawal from the Middle East as a whole, a region that Trump in his speech justifying the attack calls ‘troubled’ beyond the capacity of the United States to fix. At least temporarily, from Israel’s point of view, the air strikes sent a signal to Moscow that the United States was not ready to accept Syria becoming a geopolitical pawn of Russia and Iran. Supposedly, the Netanyahu entourage, although pleased by the Jerusalem move, the challenge to the Iran Nuclear Agreement, and silence about the IDF lethal responses to the Gaza Great Return March, have new worries that when it comes to regional belligerence and overall military engagement, Trump will be no more help than Obama, who quite irrationally became their nightmare American president.

 

And if that is not enough to ponder, consider that Iraq was savagely attacked in 2003 by a U.S./UK coalition under similar circumstances, that is, without either an international law justification or authorization by the UN Security Council, the only two ways that international force can be lawfully employed, and even then only as a last resort after sanctions and diplomatic avenues have been tried and failed. It turned out that the political rationale for recourse to aggressive war against Iraq, its alleged possession of weapons of mass destruction was totally false, either building the case for war on the elaborately orchestrated presentation of false evidence or more generously, as awkwardly victimized by a hugely embarrassing intelligence lapse.

 

To be fair, this Syrian military caper could have turned out far worse from the perspective of world peace and regional security. The 105 missile attack war over in 3 minutes, no civilian casualties have been reported, and thankfully, any challenge to the Russian and Iranian military presence in Syria was deliberately excluded from the targeting plan, or to the Syrian government, thus taking precautions to avoidT setting in motion the rightly feared retaliation and escalation cycle. This was not an idle worry. More than at any time since the end of the Cold War sober concerns abounded preceding the attack that a clash of political wills or an accidental targeting mistake could cause geopolitical stumbles culminating in World War III.

 

Historically minded observers pointed out alarming parallels with the confusions and exaggerated responses that led directly to the prolonged horror of World War I. The relevant restraint of the April 14thmissile attacks seems to be the work of the Pentagon, and certainly not the hawk-infested White House. Military planners designed the attack to minimize risks of escalation, and possibly even reaching behind the scenes an undisclosed negotiated understanding with the Russians. In effect, Trump’s red line on chemical weapons was supposedly defended, and redrawn at the UN as a warning to Damascus, but as suggested above this was the public face of the attack, not its principal motivations, which remain unacknowledged.

 

 

Doubting the Facts

 

Yet can we be sure at this stage that at least the factual basis of this aggressive move accurately portrayed Syria as having launched a lethal chlorine and likely nerve gas attack on the people of Douma, killing at least 40? On the basis of available evidence, the facts have not yet been established beyond reasonable doubt. We have been fooled too often in the past by the confident claims of the intelligence services working for these same countries that sent this last wave of missiles to Syria. International maneuvering for instant support of a punitive response to Douma seemed a rush to judgment amid an array of strident, yet credible, voices of doubt, including from UN sources. The most cynical observers are suggesting that the timing of the attack, if not its real purpose other than the vindication of Trump’s red line, is to destroy evidence that might incriminate others than the Syrian government as the responsible party. Such suspicions are fueled by the refusal to wait until the factual claims could be validated. As matters stand, the airstrike seem hastened to make sure that the respected Organization for the Prohibition of Chemical Weapons (OPCW), when finally carrying out its fact finding mission would have nothing to find.

 

To allay reactions that these are ideologically driven criticisms, it is notable that the Wall Street Journal, never a voice for peace and moderation, put forward its view that it was not “clear who carried out the attack” on Douma, a view shared by several mainstream media outlets including the Associated Press. Blaming Syria, much less attacking, was definitely premature, and quite possibly altogether false, undermining the essential factual foundation of the coalition claim without even reaching the formidable doubts associated with issues of the unlawfulness and illegitimacy of an international use of non-defensive force without authorization by the United Nations.

 

 

Remnants of Colonialism

 

Less noticed, but starkly relevant, is the intriguing reality that the identity of the three states responsible for this aggressive act share strong colonialist credentials that expose the deep roots of the turmoil afflicting in different ways the entire Middle East. It is relevant to recall that it was British and French colonial ambitions in 1916 that established the blueprint for carving up the collapsed Ottoman Empire, imposing artificial political communities with borders reflecting European priorities not natural affinities, and taking no account of the preferences of the resident population. This colonial plot foiled Woodrow Wilson’s more positive proposal to implement self-determination based on affinities of ethnicity, tradition, and religion of those formerly living under Ottoman rule.

 

The United States fully supplanted this colonial duopoly as the colonial sun was setting around the world, especially after the Europeans faltered in the 1956 Suez Crisis. At the same time the U.S. quickly made its own heavy footprint known, feared, and resented throughout the region with an updated imperial agenda featuring Soviet containment, oil geopolitics, and untethered support for Israel. Even earlier in 1953 the Truman Doctrine and CIA support for the overthrow of the democratically elected and nationalist government of Mohammad Mosaddegh disclosed the extent of U.S. involvement in the region.  These strategic priorities were later supplemented by worries after 1979 about the spread of Islam and fears after 2001 that nuclear weaponry could fall into the wrong political hands. After a century of exploitation, intervention, and betrayal by the West, it should come as no surprise that anti-Western extremist movements have surfaced throughout the Arab World, and engendered some populist sympathies despite their barbaric tactics.

 

 

 

Violating International Law, Undermining the UN

 

It is helpful to recall the Kosovo War (1999) and the Libyan War (2011), both managed as NATO operations carried out in defiance of international law and the UN Charter. Because of an anticipated Russian veto, NATO, with strong regional backing in Europe launched a punishing air attack that drove Serbia out of Kosovo. Despite the presence of a strong case for humanitarian intervention within the Kosovo context it set a dangerous precedent, which advocates of a regime-changing intervention in Iraq found convenient to invoke a few years later. In effect the U.S. found itself backed into insisting on an absurd position, to the effect, that the veto should be respected without any questioning when the West uses it, most arbitrarily and frequently to protect Israel from much more trivial, yet justifiable, challenges than what this missile attack on the basic sovereign rights of the internationally legitimate government of Syria signifies.

 

American diplomats do not try to justify, or even explain, their inconsistent attitudes toward the authority of the UN veto, despite the starkness of the contradiction. Perhaps, it is a textbook example of what psychologists call cognitive dissonance. More accessibly, it is a prime instance of a continued reliance on the benefits of American exceptionalism. As the self-anointed guarantor of virtue and perpetual innocence in world politics the United States is not bound by the rules and standards by which its leaders judge the conduct of others, especially adversaries.

 

As a personal aside, with some apologies owed, I was the main author of the section of the report in my role as a member of the Independent International Commission on Kosovo, which put forth the rationale of ‘illegal but legitimate’ with respect to the Kosovo intervention. I had misgivings at the time, but was swayed by the shadow of Srebrenica and the difficulties of finding a consensus among the members of the Commission to put forth this line of argument, qualified to an extent in the text of the report, by invoking the exceptional facts and expressing what turned out to be the vain hope that the UNSC would itself create greater flexibility in responding to humanitarian crises of this kind and overcome what seemed at the time giving credibility to a pattern of justification for war making that could in the future be twisted out of shape by geopolitical opportunism. My fears have been realized, and I would now be very reluctant to endorse my own formulations that seemed, on balance the right way to go back in the year 2000. Now I lose sleep whenever I recall that I was responsible for what has become an insidious conceptual innovation, ‘illegal but legitimate,’ which in unscrupulous geopolitical hands operates as an ‘open Sesame’ rendering irrelevant Charter constraints.

 

The Libyan precedent is also relevant, although in a different way, to the marginalization of the UN and international law to which this latest Syrian action is a grim addition. Because the people of the Libyan city of Benghazi truly faced an imminent humanitarian emergency in March of 2011 the argument for lending UN protection seemed strong. Russia and China, permanent members of the UNSC, and other skeptical members, were persuaded to suspend their suspicions about Western motives and abstained from a resolution specifically authorizing the establishment of a No Fly Zone to protect Benghazi. It didn’t take long to disabuse Russia and China, mocking their trust in assurances by the NATO states that their objective were limited and strictly humanitarian. They were quickly shocked into the realization that actual NATO mission in Libya was regime change, not humanitarian relief. In other words, these same Western powers who are currently claiming at the UN that international law is on their side with regard to Syria, have themselves a terrible record of flouting and manipulating UN authority whenever convenient and insisting on their full panoply of obstructive rights under the Charter when Israel’s wrongdoing is under review.

 

Ambassador Nikki Haley, Trump’s flamethrower at the UN, arrogantly reminded members of the Security Council that the U.S. would carry out a military strike against Syria whether or not  it was permitted by the Organization. In effect, even the veto as a shield is not sufficient to quench Washington’s geopolitical thirst. It also claims the disruptive option of the sword of American exceptionalism to circumvent the veto when it anticipates being blocked by the veto of an adversary. Such duplicity with respect to legal procedures at the UN puts the world back on square one when it comes to restraining the international use of force by geopolitical actors. Imagine the indignation that the U.S. would muster if Russia or China proposed at the Security Council a long overdue peacekeeping (R2P) mission to protect the multiply abused population of Gaza. And if these countries went further, and had the geopolitical gall to act outside the UN because of an expected veto by NATO members of the Security Council and the urgency of the humanitarian justification, the world would almost certainly experience the bitter taste of apocalyptic warfare.

 

 

The Charter Framework is Not Obsolete

 

The Charter framework makes as much sense, or more, than when crafted in 1945. Recourse to force is only permissible as an act of self-defense against a prior armed attack, and then only until the Security Council has time to act. In non-defensive situations, such as the Syrian case, the Charter makes clear beyond reasonable doubt that the Security Council alone possesses the authority to mandate the use of force, including even in response to an ongoing humanitarian emergency. The breakthrough idea in the Charter is to limit as much as language can, discretion by states to decide on their own when to have recourse to acts of war. Syria is the latest indication that this hopeful idea has been crudely cast in the geopolitical wastebasket.

 

It will be up to the multitudes to challenge these developments, and use their mobilized influence to reverse the decline of international law and the authority of the UN. Most members of the UN are themselves so beholden to the realist premises of the system that they will never do more than squawk from time to time.

 

Ending Trump’s boastful tweet about the Syrian airstrike with the words ‘mission accomplished’ unwittingly reminds us of the time in 2003 when the same phrase was on a banner behind George W. Bush as he spoke of victory in Iraq from the deck of an aircraft carrier with the sun setting behind him. Those words soon came back to haunt Bush, and if Trump were capable of irony, he might have realized that he is likely to endure an even more humbling fate, while lacking Bush’s willingness to later acknowledge his laughable mistake.

 

 

Fudging Constitutional Authorization

 

Each of the attacking countries claims impeccable democratic credentials, except when their effect is to impede war lust. Each purports to give its legislative branch the option of withholding approval for any contemplated recourse to military action, except in the case that the homeland is under attack. Yet here, where there was no attack by Syria and no imminent security threat of any kind each of these governments joined in an internationallyunlawful attack without even bothering to seek domesticlegislative approval, claiming only that the undertaking served the national interest of their governments by enforcing the norms of prohibition contained in the Chemical Weapons Convention.

 

The American attempts to supply flimsy domestic justifications are decisively refuted by two widely respected international jurists, including one, Jack Goldsmith, who was a leading neoconservative legal advisor in the early years of the George W. Bush presidency. [Jack Goldsmith & Oona Hathaway, “Bad Legal Arguments for the Syria Airstrikes,” Lawfare website, Aprile 14, 2018]  Their article rejects arguments based on theAuthorization for the Use of Military Force, which in 2001 gave broad authority to use military force in response to the 9/11 attacks, but has no bearing here as Syria has never been accused of any link. The other legal claim that has been brought forward argues that the airstrikes are expressions of the president’s authority under Article II of the Constitution to serve as Commander in Chief, but any freshman law student knows, or should know, that this authority is available only if the use of force has been previously validated by Congress or is in response to an attack or a plausible argument of the perceived imminence of such an attack. Revealingly, the internal justification for Trump’s authority has not been disclosed as yet, and has been heavily classified, showing once again that government secrets in wartime are not primarily kept to prevent adversaries from finding things out, but as with the Pentagon Papers, are useful mainly to keep Americans in the dark about policies that affect their wellbeing and possibly their survival. It also gives the leadership more space for deception and outright lies.

 

It has been reliably reported that the Trump White House preferred to act without seeking Congressional approval, presumably to uphold the trend toward establishing an ‘executive presidency’ when it comes to war/peace issues, thereby effectively negating a principal objective of the U.S. Constitution to apply the separation of powers doctrine to any recourse to war. This also marginalizes the War Powers Act enacted into law in the aftermath of the Vietnam War in the vain attempt to restore the Constitutional arrangement after a period during which the President arrogated power to wage war and the policy acted upon produced the worst foreign policy failure in all of American history.

 

 

Where Does This Leave Us?

 

There are several levels of response:

 

–with respect to Syria, nothing has changed.

 

–with respect to the UN and international law, a damaging blow was struck.

 

–with respect to constitutionalism, a further move away from respect for separation of powers, thus marginalizing the legislative branch with respect to war/peace policies.

 

–with respect to oppositional politics, citizen protest, and media reactions, an apathetic atmosphere of acquiescence, with debate shifting to questions of purpose and effectiveness without virtually no reference to legality, and quite little, even to legitimacy (that is, moral and political justifications).

 

Jerusalem Is (Is Not) the Capital of Israel

10 Dec

[Prefatory Note: This post is a slightly modified version of an article published in the global edition of the Italian newspaper, Il Manifesto, on December 8, 2017.]

 Jerusalem Is (Is Not) the Capital of Israel

 Those who speak on behalf of Israel like to defend Donald Trump’s provocative decision of December 6th to recognize Jerusalem as the capital of Israel with this contention: “Israel is the only state in the world that is not allowed to locate its capital in a national city of its choice.” It seems like an innocent enough proclamation, and even accurate pushback against global double standards, until one considers the political, moral, and legal dimensions of the actual situation.

 

With the benefit of just a moment’s reflection, a more thoughtful formulation of the issue would be: “Israel is the only state in the world whose government dares to locate its capital in a city located beyond its sovereign borders and subject to superior competing claims.” Granted, Israel has declined to date to define its borders for purposes of international law, presumably to leave room for its own further territorial expansion until the whole of the promised land as understood to comprise biblical Israel is effectively made subject to Israeli sovereign control. At stake, in particular, is the West Bank, which is known within Israel by its biblical names of Judea and Samaria, signifying Israel’s outlier belief that the ethnic and religious heritage of the Jewish people takes precedence over modern international law.

 

Further reflection casts additional doubt on this Trump/Netanyahu approach to the status of Jerusalem. It is helpful to go back at least 70 years to the controversial UN partition proposals set forth in General Assembly Resolution 181. Israel over the years has often congratulated itself on its acceptance of 181, which it contrasts with the Palestinian rejection. Palestinians suffered massive dispossession and expulsion in the war that ensued in 1947, known as the Nakba among Palestinians. Israel has argued over the years that its acceptance of 181 overrides the grievances attributable to the Nakba, including the denial to Palestinians of any right to return to their homes or place of habitation however deep and authentic their connections with the land and regardless of how persuasive their claims of Palestinian identity happen to be. What Israelis want the world to forget in the present setting is the UN treatment of Jerusalem that was integral to the 181 approach. Instead, Israel has sold the false story to the world that 181 was exclusively about the division of territory, and thus the bits about Jerusalem contained in the resolution can be ignored without comment, and deserve to be long forgotten.

 

What the UN actually proposed in GA Res. 181, and what Israel ‘accepted’ in 1947 was that the city of Jerusalem, in deference to its connections with Palestinians and Jewish national identity, should not be under the sovereign control of either people, but internationalized and subject to UN administration. Beyond the difficulty of reconciling Jewish and Palestinian claims to the city, the symbolic and religious significance of Jerusalem to the three monotheistic religions provided a parallel strong rationale for internationalization that has, if anything, further vindicated with the passage of time.

 

It can be argued by proponents of Trump’s recognition that even the Palestinians and the Arab World (by virtue of the 2002 Arab Peace Initiative) have silently replaced the internationalization of Jerusalem with the so-called ‘two-state solution’ in which the common assumption of both sides is that Jerusalem would be shared in ways that allowed both Israel and Palestine to establish their respective capital within the city limits. Most two-state plans called for the Palestinian capital to be located in East Jerusalem, which Israel has occupied for the past 50 years, that is, ever since the 1967 War. The clarity of this conviction is what explains the view that the thorny question of the relationship of both Israel and Palestine to the disposition of Jerusalem should be addressed at the last stage of peace negotiations. But suppose that the prospect of genuine peace negotiations is postponed indefinitely, then what? The geopolitical effort to fill this vacuum is undertaken at the expense of UN authority, as well as international law and international morality.

 

Here again we encounter an awkward split between what Israel claims (as reinforced by U.S. foreign policy) and what international law allows. Israel after the war ended in 1967 immediately asserted that the whole of Jerusalem was ‘the eternal capital’ of the Jewish people. Tel Aviv went even further. It expanded by Israeli legal decree the area encompassed by the city of Jerusalem, almost doubling its size and incorporating a series of Palestinian communities in the process. Israel acted unilaterally and unlawfully, against unified opposition within the UN, in defiance of world public opinion, and even in the face of rebuke by such a widely respected moral authority figure as Pope Francis.

 

East Jerusalem, at least, is ‘Occupied Territory’ according to international humanitarian law, and as such is subject to the Geneva Conventions. The Fourth Geneva Convention governs ‘belligerent occupation,’ and rests on the basic legal norm that an Occupying Power should take no steps, other than those justified by imperative security considerations, to diminish the rights and prospects of a civilian population living under occupation. In this regard, it is hardly surprising that Israel’s actions designed to obliterate East Jerusalem as a distinct ‘occupied’ territory have met with universal legal and political condemnation within the UN. For Trump to depart from this international consensus is not only striking heavy blows against the U.S. role as intermediary in any future peace process, but also mindlessly scrapping the two-state approach as the agreed basis of peace without offering an alternative, leaving the impression that whatever reality Israel imposes the United States will accept, giving scant attention to international concerns or Palestinian rights.

 

Returning to the burning question as to why Israel should be denied the right to locate its capital wherever it wishes, as other states do, it is clarifying to reformulate the Israeli claim: “Does any state have the right to establish its capital in a city that is ‘occupied’ rather than under the exclusive sovereign authority of the territorial government?” This is especially relevant in this instance, given the general agreement within the international community that the Palestinian right of self-determination includes the right to have its national capital both within its territory and in Jerusalem.

 

Trump’s initiative tries to ease the pain by the confusing accompanying assertion that the final disposition of Jerusalem’s borders is something for the parties to decide as part of final status negotiations, that is, at the end of the diplomatic endgame. Aside from Israel’s belief that it need not make further concessions for the sake of peace, a geopolitical assertion of support for Israel’s approach to Jerusalem, especially without the backing of the Arab League, the UN, and the European Union is worse than an empty gesture. It uses an iron fist on behalf of the stronger party, where a minimal respect for law, morality, and justice would counsel giving support for the well-grounded claims of the weaker side, or at least staying neutral.

 

The harm done by the Trump initiative on recognizing Jerusalem as the capital of Israel, and declared intention to start the process of moving the embassy is impossible to assess fully at this time. Whether there will be an upsurge in resistance violence, political extremism, anti-American terrorism, and wider warfare is now essentially unknowable, although the stage has been recklessly arranged so that these developments seem more likely to occur than earlier, and if they do, will be treated as outcomes of Trump’s faulty diplomacy.

 

What is already evident on the basis of the decision itself is the severe damage done to the global and regional leadership reputation of the United States. As well, the authority of the United Nations has been shown to be no match for geopolitical resolve, and international law and world public opinion have been pushed aside. For the Trump presidency the special relationship with Israel has been enlarged beyond previous outer limits and the part of the Trump base that wanted these policies has been appeased for the moment. Prospects for a diplomacy based on the equality of rights of Palestinians and Israelis have been reduced to zero, and thus no just end of the Palestinian ordeal can be foreseen. Overall, it is not a pleasant balance sheet of gains and losses if evaluated from the perspective of American grand strategy in the Middle East, and if the wider regional setting of Iran’s spreading influence is taken into account, the situation looks even worse.

The Spiritual Sources of Legal Creativity: The Legacy of Father Miguel d

31 Oct

 

[Preliminary Remarks: What follows is the modified transcript of a talk given at Fordham University School of Law honoring the memory of the recently deceased Maryknoll priest, Father Miguel d’Escoto, who had been both the Foreign Minister of Sandinista Nicaragua and President of the UN General Assembly, as well as pastor to the poor in the spirit of Pope Francis, an extraordinary person who fused a practical engagement in the world with a deeply spiritual nature that affected all who were privileged to know and work with him.]

 

THE INAUGURAL FR. MIGUEL D’ESCOTO

MEMORIAL LECTURE: “THE SPIRITUAL SOURCES OF LEGAL CREATIVITY”

October 24, 2017

Program

Fordham University School of Law

150 West 62nd Street Room 3-03

 

Chair:

Kevin M. Cahill, M.D.

University Professor, IIHA, Fordham University

Lecturer:

Richard A. Falk

Professor Emeritus, Princeton University School of Law

 

Discussant:

Martin S. Flaherty

Leitner Family Professor of Law, Fordham Law School

 

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

 

It is a humbling honor to speak at this gathering of remembrance dedicated to a truly great human being who inspired and touched the lives and activities of so many of us in this room. Kevin Cahill is among those here who had such an intimate and sustained friendship with Father Miguel. Kevin is also a person with his own abundant inspirational gifts, and I remain deeply grateful to him for originally bringing me into contact with Miguel.

 

Others here today could assuredly speak more knowingly about the person. I will only offer this personal observation: Miguel exhibited a remarkable quality of moral radiance that was immediately apparent to all those fortunate enough to cross his path. The only person in my experience who possessed a comparable depth of ethical being was Nelson Mandela with whom I had a single and brief, yet memorable, encounter.

 

The title given to my remarks is something I admit imposing upon myself, and now at this moment of delivery strikes me now as far too ambitious. I chose such a theme because it does reflect the most enduring and empowering dimension of my association with Miguel, and seemed appropriate to reflect upon in the venerable academic venue of the Fordham School of Law.

 

My point of departure is this: if we believe, which many do not, that justice is the proper end of law, then we must struggle to overcome the calculative or transactional mentality that dominates our legal culture, restricting our attitudes and endeavors involving law to the domain of the feasible. I am fully aware that I am endorsing an unconventional outlook by elevating the moral imagination and what I would call ‘utopian realism.’ This kind of formulation disregards the conventional understanding of law as essentially offering a suite of techniques for problem-solving that presupposes a view of politics as ‘the art of the possible.’

 

It is this kind of ethical radicalism that made the life of Father Miguel so exemplary, and in the best sense, ‘revolutionary,’ for all those whose lives he affected whether in ministering to the poor or challenging the high and mighty, whether acting in a pastoral capacity or as a man of the world. It is important to appreciate that Miguel was both an ardent Nicaraguan nationalist and a passionate citizen of the world, what I call a ‘citizen pilgrim,’ embarked on a pilgrimage to a global future that embodies peace with justice.

Let me preface this inquiry into the spiritual sources of legal creativity with a general remark that pertains particularly to international law. I may be almost alone among law professors in believing that that international law is the field of law that is most relevant to the ultimate survival of the human species. The sad reality is that international law continues to struggle for survival as a field of study, being often denigrated, evaded, and violated by the most powerful governments on the planet whenever law is seen as blocking a preferred policy and there are always many apologists among the ranks of legal experts and diplomats ready to offer a comforting rationalization.

 

And yet viewed from a perspective other than war/peace and security, international law in relation to trade and investment has basically served to protect the interests of the rich and powerful, while shackling the poor and vulnerable. In other words, international law has this dual face: it bends to the geopolitical will of the militarily powerful while often cruelly imposing accountability on the weak. At the founding of the UN a Mexican diplomat caustically observed that ‘we have created an organization that regulates the mice while the tigers roam freely.’ And so it is.

 

It is against this background that Miguel d’Escoto’s spiritual wisdom creates a contrast with business as usual in the world of real politik. Even for most global reformers, the criterion for constructive action is a realistic appreciation of achievable limits, what I would identify as horizons of feasibility. We are living increasingly in a world in which there are growing gaps between what is feasible and what is necessary, what I identify as horizons of necessity. Adapting to climate change in the Age of Trump underscores this menacing gap between feasibility and necessity. As a diplomat Father Miguel was almost unconcerned with feasibility as conventionally understood if it stood in the way of necessity or desirability. He was deeply sensitive to the imperatives of necessity, and even more so to the moral and spiritual imperatives of doing what is right under a particular set of circumstances, and for this reason alone he was most responsive to what I identify here as horizons of spirituality.

 

He was motivated by a belief, undoubtedly reflecting his religious faith, in the potency of right reason, and on this basis conceived of international law as a crucial vehicle for realizing such a vision, embracing with moral enthusiasm a kind of ‘politics of impossibility’ in which considerations of justice outweighed calculations of feasibility or the obstacles associated with geopolitics. It is with an awareness of the trials and tribulation of Nicaragua and its long suffering population that Father Miguel turned to law as an imaginative means of empowerment.

 

Let me illustrate by reference to the historic case that Nicaragua brought against the United States in the early 1980s at the International Court of Justice in The Hague. It was a daring legal flight of moral fancy to suppose that tiny and beleaguered Nicaragua could shift its struggle from the bloody battlefields of U.S. armed intervention and a mercenary insurgency against the Sandinista Government of which he was then Foreign Minister to the lofty legal terrain that itself had been originally crafted to reflect the values and interests of dominant states, the geopolitical players on the global stage. But more than this it was a brilliant leap of political imagination to envision the soft power of law neutralizing the hard power of high tech weaponry in a high stakes ideological struggle being waged in the midst of the Cold War.

 

Such an attempt to shift the balance of forces in an ongoing conflict by recourse to international law and the World Court had never before been made in any serious way. It was a David and Goliath challenge that the World Court as the highest judicial institution in the UN System had yet to face in a war/peace context, and it turned out to be a test of the integrity of the institution.

 

Let me recall the situation in Nicaragua briefly. The United States was supporting a right-wing insurgency, the counterrevolutionary remnant of the Somoza dictatorship, a single family that had cruelly and corruptly ruled Nicaragua between 1936 and 1974 on behalf of corporate America (the era of ‘banana republics’), leaving the country in impoverished ruins when the Somoza dynasty finally collapsed. The Somoza-oriented insurgents were known as the Contras, and were called ‘freedom fighters’ by their American sponsors and paymaster because they were opposing the Sandinista Government that had won a war of national liberation in 1979, but was accused by its detractors of leftist tendencies and Soviet sympathies, which was the right-wing ideological way of obscuring the true affinity of the Sandinista leadership with the teachings of Liberation Theology rather than with the secular dogmatics of Marxism. It was a way of depriving the people of Nicaragua of their inalienable right of self-determination. The United States Government via the CIA was training and equipping the Contras, and quite overtly committing acts of war by mining and blockading Managua, Nicaragua’s main harbor and its lifeline to the world.

 

It was these interventionary undertakings that flouted the authority of international law and the UN Charter. Father Miguel’s addressed the UN General Assembly in his capacity as Nicaragua’s acting Foreign Minister, vividly describing the conflict with some well-chosen provocative words: “It is obvious that the war to which Nicaragua is being subjected is a U.S. war, and the so-called Contras are merely hired hands serving the diabolical objectives of the Reagan Administration.” Later in the same speech he condemned the U.S. Government for recently appropriating an additional $100 million “to finance genocide against our people.” [Address to UNGA, Nov. 3, 1986]

 

I quote this robust language partly to show that Father Miguel’s spiritual nature did not always mean a gentle demeanor or denote the absence of a fighting spirit. As here, when deemed appropriate to the situation, Miguel readily relied on undiplomatic candor to get his point across. He was also insistent on using such occasions to talk truth to power and to lay blame and responsibility for the torment of the Nicaraguan people where it belonged, however impolitic it was to do so.

 

Without going into the details of the case, it was possible for Nicaragua to lodge such a complaint against the United States because the U.S. Government had earlier agreed to accept the authority of the ICJ if the other side in an international conflict had been similarly committed. With this awareness, Father Miguel in his role as Foreign Minister (1979-90) realized two things: that the sovereign rights of Nicaragua were being overridden in a manner in flagrant violation of international law and that the World Court was supposed to provide countries with a nonviolent option of resolving international legal disputes, seen as an important contribution to maintaining world peace that the U.S. had itself strongly championed throughout most of the 20th century.

 

It may not seem so unusual for a small country to take advantage of a potential judicial remedy, but in fact it had never happened—no small state had ever gone to the World Court to protect itself against such military intervention, and to do so on behalf of a progressive government in the Third World in the midst of the Cold War seemed to many at the time like a waste of time and money that Nicaragua could ill afford.

 

It is here where one begins to grasp this potentially revolutionary idea of relying upon the spiritual sources of legal creativity. Father Miguel was convinced that what the United States Government was doing was legally and morally wrong, and that it was an opportune time for the mice to fight back against the predator tiger. It was an apt occasion to act by reference to horizons of spirituality.

 

Yet this did not mean that Miguel would ignore the pragmatic dimensions of effectiveness. Nicaragua managed to persuade Harvard law professor, Abram Chayes, to act on their behalf as head legal counsel. This was a brilliant tactical move that I applauded at the time (even though it meant that as Nicaragua’s second choice I lost out). Aside from being a first-class international lawyer with a high global profile, Chayes had previously served as John F. Kennedy’s Legal Advisor and close confidant at the time of the Cuban Missile Crisis. The symbolism could not have been more pointed, underlining the fact that Chayes was committed to upholding international law rather than being a combatant in the ideological sideshow carried on throughout the Cold War. Not surprisingly, the Wall Street Journal audaciously described Chayes as ‘a traitor’ for accepting such a role.

 

I had the opportunity to work with Chayes and Father Miguel in the American Irish Historical Society here in Manhattan that was operating under the benign tutelage of none other than Dr. Kevin Cahill. We worked hard for several days as a team developing the arguments both as to the authority of the ICJ to adjudicate, what we lawyers call ‘jurisdiction,’ to be decided in a separate preliminary decision, as well as on the substance of Nicaragua’s allegations, which constituted the second phase of the litigation. What was so impressive to me then, and even now, almost 40 years later, is that this effort to combine a somewhat utopian motivated legal undertaking with a practical mastery of the technical dimensions of the case illustrated for me the extraordinary blending of spiritually grounded, yet worldly wisdom with the down to earth skills of legal craft.

 

The outcome of the Nicaragua narrative is too complicated to describe properly, but in short—counsel for Nicaragua persuaded the Court that it had jurisdictional authority, at which point the United States petulantly, yet not unexpectedly, withdrew from the proceedings correctly realizing that if it could not prevail at this jurisdictional phase it had virtually no chance to have its legal arguments accepted at the merits phase of the case. Further, the U.S. Government was so displeased with the ICJ that it seized the occasion to renounce its earlier formal acceptance of what is technically referred to as ‘compulsory jurisdiction,’ which meant that no state could commence such an action against the USG in the future, and that the U.S. was itself permanently foreclosed from proceeding against a state against which it had legal grievances unless that state gave its consent.

 

This retreat from adjudicating international legal disputes has been an unintended and unfortunate lasting effect of the Nicaragua case. The American stance of viewing international law as only viable when it supports its geopolitical tactics has sent a damaging message to the world. It has definitely weakened the role and potential of the ICJ and of international judicial authority generally. In one sense, the US withdrawal was understandable for those who are driven to shape foreign policy by feasibility calculations rather than by certain abiding values such as, here, adhering to the rule of law. It hardly required a legal genius in the State Department to anticipate that if the Court upheld its legal authority to pronounce upon the controversy, then it would almost certainly rule in favor of Nicaragua on the substantive issues. Despite some technical issues involving the selection of the applicable legal authority, given the sweeping prohibitions of international law and the UN Charter against uses of force except in situations of self-defense against a prior armed attack, the pro-Nicaragua outcome was entirely predictable.

 

What was rather intriguing from a jurisprudential point of view was that despite its much hyped boycott of the proceedings and accompanying denunciation of the jurisdictional finding, the U.S. in the end quietly complied with the principal finding in The Hague, namely, that the naval blockade of Nicaragua’s harbors was unlawful. As would be expected, the USG never acknowledged that it was complying, nor did Nicaragua dance in the streets of Managua, but the cause/effect relationship between the judicial decision and compliant behavior was clear to any close observer.

 

There was then some reality to the expression ‘the force of law,’ and the USG, even during the Reagan presidency, did not want to stand before the world as openly defying the law, even international law. Such an assessment may have reflected the fact that the U.S. Government was in the midst of a struggle to win the legitimacy war being waged against the Soviet Union, which partly hinged on the relative reputation of these two dueling superpowers in relation to respect for international law and human rights, signature issues of ‘the free world.’

 

For me this Nicaragua experience was a compelling example of Father Miguel’s achievements that followed directly from his deep commitment to the horizons of spirituality and decency. It was far from the only instance. Let me mention two others very quickly. One of my other connections with Father Miguel was to serve as one of his Special Advisors during his year as President of the UN General Assembly thoughout its 63rd session, 2008-09. As continues to be the case, life could become difficult for any leading UN official who openly opposed Israel. Father Miguel was deeply aware of the Palestinian ordeal and unabashedly supportive of my contested role as Special Rapporteur for Occupied Palestine on behalf of the Human Rights Council in Geneva. When I was detained in an Israeli prison and then expelled from Israel at the end of 2008, Father Miguel wanted to organize a press conference in NYC to give me an opportunity to explain what had happened and defend my position. I declined his initiative, perhaps unadvisedly, as I didn’t want to place Miguel in the line of fire sure to follow.

 

At the end of 2008 Israel launched a massive attack against Gaza, known as Cast Lead, and Father Miguel sought to have the General Assembly condemn the attack and call for an immediate ceasefire and Israeli withdrawal. It was a difficult moment for Father Miguel, feeling certain that this was the legally and morally the right thing to do. Yet as events proceeded and diplomatic positions were disclosed, Miguel was forced to recognize that the logic of geopolitics worked differently, in fact so starkly differently that even the diplomat representing the Palestinian Authority at the UN intervened to support a milder reaction than what Miguel deemed appropriate. Unlike his Nicaraguan experience, here the backers of feasibility prevailed, but in a manner that Father Miguel could never reconcile himself to accept.

 

I met many diplomats at UN Headquarters here in NY who said that no one had ever occupied a high position at the UN with Father Miguel’s manifest quality as someone so passionately dedicated to righteous principle. Pondering this, it occurred to me that one possible exception was Dag Hammarskjöld, an early outstanding UN Secretary General, who died in a plane crash, apparently assassinated in 1961 for his principled, yet geopolitically inconvenient, dedication to peace and justice. From his private writings we know that Hammarskjöld’s UN efforts also sprung from wellsprings of spirituality.

 

Most GA presidents take the post as an honorific feather in their cap, the symbolic culmination of a public sector career, and spend the year presiding over numerous tedious meetings and hosting an endless series of afternoon receptions, but never make any effort to influence, much less enhance, the role of the General Assembly or otherwise strengthen the UN as an institution of potential global governance. Miguel, in contrast worked tirelessly to make the UN more effective, more respectful of law, more democratic, and above all, more sensitive to claims reflective of global justice.

 

Miguel took full advantage of his term as president of the General Assembly to provide venues within the Organization that offered humane alternatives to neoliberal economic globalization. He sponsored and organized meetings at the UN designed to overcome current patterns of economic and ecological injustice, making use of the presence in New York City of such non-mainstream economists as Jeffrey Sachs and Joseph Stiglitz, and the prominent Canadian activist author, Maude Barlow. Here again Father Miguel demonstrated his grounded spirituality by once more combining the visionary with the practical.

 

I had the opportunity to work with Father Miguel on several proposals to raise the profile and role of the General Assembly as the most representative and democratic organ of the UN. This initiative was rather strategic and partly meant to counter the US-led campaign to concentrate UN authority in Security Council so that Third World aspirations and demands could be effectively thwarted, and the primacy of geopolitics reestablished after the assault mounted in the 1970s by the then ascendant Nonaligned Movement.

 

What I have tried to describe is this deep bond in the life and work of Father Miguel between the spirituality of his character and motivations and the practicality of his involvement in what the German philosopher, Habermas, calls ‘the lifeworld.’ I find it indicative of Father Miguel’s deep spiritual identity that he suffered a punitive response to his life’s work from the institution he loved and dedicated his life to serving, being suspended in 1985 by Pope John Paul II from the priesthood because of his involvement in the Nicaraguan Revolution. Miguel was reinstated 29 years later by Pope Francis, who many view as a kindred spirit to Miguel.

 

There is an object lesson here for all of us: in a political crisis the moral imperative of service to people and ideals deserves precedence over blind obedience to even a cherished and hallowed institution. This would undoubtedly almost always pose a difficult and painful choice, but it was one that defined Father Miguel d’Escoto at the core of his being, which he expressed over and over by doing the right thing in a spirit of love and humility, but also in a manner that left no one doubting his firmness, his affinities and commitments, as well as his unwavering and abiding convictions.

 

As I suggested at the outset, the daring and creativity that Father Miguel brought to the law and to his work at the UN sprung from spiritual roots that were deeply grounded in both religious tradition and in an unshakable solidarity with those among us who are poor, vulnerable, oppressed, and victimized. For Miguel spirituality did not primarily equate with peace, but rather with justice and an accompanying uncompromising and lifelong struggle on behalf of what was right and righteous in every social context, whether personal or global.

 

 

There is no assurance that this way of believing and acting will control every development in the world or even control the ultimate destiny of the human species. Humanity retains the freedom to fail, which could mean extinction in the foreseeable future.The happy ending of the Nicaragua case needs to be balanced against the prolonged and tragic ordeal of the Palestinian people for which there is still no end in sight. Beyond wins and losses, what I think should be clear is that unless many more of us become attentive to the horizons of spirituality and necessity the outlook for the human future is presently bleak. Father Miguel d’Escoto’s disavowal of the domain of the feasible is assuredly not the only way to serve humanity, but it is a most inspiring way, and points us all in a direction that is underrepresented in the operations of governments and other public institutions, not to mention during the speculative frenzies on Wall Street and the backrooms of hedge fund offices.

 

In my language, Father Miguel d’Escoto was one of the great citizen pilgrims of our time. His life was a continuous journey toward what St. Paul called ‘a better city, a heavenly city’ to manage and shape the totality of life on Planet Earth.

 

 

 

 

 

Nobel Peace Prize 2017: International Campaign to Abolish Nuclear Weapons (ICAN)

8 Oct

 

Finally, the committee in Oslo that picks a winner of the Nobel Peace Prize each year selected in 2017 an awardee that is a true embodiment of the intended legacy of Alfred Nobel when he established the prize more than a century ago. It is also a long overdue acknowledgement of the extraordinary dedication of anti-nuclear activists around the planet who for decades have done all in their power to rid the world of this infernal weaponry before it inflicts catastrophe upon all living beings even more unspeakable that what befell the cities of Hiroshima and Nagasaki on two infamous days in August 1945. Such a prize result was actually anticipated days before the announcement by Fredrik Heffermehl, a crusading Norwegian critic of past departures from Nobel’s vision by the prize committee. In making the prediction that the 2017 prize would be given in recognition of anti-nuclear activism Heffermehl prophetically relied on the outlook of the current chair of the Nobel selection committee, a distinguished Norwegian lawyer, Berit Reiss-Andersen, who has publicly affirmed her belief in the correlation between adherence to international law and world peace.

 

 

The recipient of the prize is ICAN, International Campaign to Abolish Nuclear Weapons, a coalition of more than 450 civil society groups around the world that is justly credited with spreading an awareness of the dire humanitarian impacts of nuclear weapons and of making the heroic effort to generate grassroots pressure sufficient to allow for the adoption of the UN Treaty on the Prohibition of Nuclear Weapons by 122 UN members on 7 July 2017 (known as the ‘BAN Treaty’). The treaty was officially signed by 53 governments of UN member states this September, and will come into force when 50 instruments of ratifications have been deposited at UN Headquarters, which suggests its legal status will soon be realized as signature is almost always followed by ratification.

 

The core provision of the BAN Treaty sets forth an unconditional legal prohibition of the weaponry that is notable for its comprehensiveness—the prohibition extends to “the developing, testing, producing, manufacturing, possessing, stockpiling and deploying nuclear weapons, transferring or receiving them from others, using or threatening to use them, or allowing any stationing or deployment of nuclear weapons on national territories of signatories, and assisting, encouraging, or inducing any of these prohibited acts.” Each signatory state is obligated to develop “legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress” activities prohibited by the treaty. It should be understood that the prohibition contributes to the further delegitimation of nuclear weapons, but it does nothing directly by way of disarmament.

The BAN Treaty no where claims to mandate disarmament except by an extension of the reasoning that if something is prohibited, then it should certainly not be possessed, and the conscientious move would be to seek a prudent way to get rid of the weaponry step by step. In this regard it is notable that none of the nuclear weapons states are expected to be parties to the BAN Treaty, and therefore are under no immediate legal obligation to respect the prohibition or implement its purpose by seeking a disarmament arrangement. A next step for the ICAN coalition might be to have the BAN prohibition declared by the UN General Assembly and other institutions around the world (from cities to the UN System) to be binding on all political actors (whether parties to the treaty or not), an expression of what international lawyers call ‘peremptory norms,’ those that are binding and authoritative without treaty membership and cannot be changed by the action of sovereign states.

 

Standing in opposition to the BAN Treaty are all of the present nuclear weapons states, led by the United States. Indeed, all five permanent members (P-5) of the UN Security Council and their allies refused to join in this legal prohibition of nuclear weapons, and to a disturbing degree, seem addicted sustainers of the war system in its most horrific dimensions. Their rationale for such a posture can be reduced to the proposition that deterrence is more congenial than disarmament. Yet the nuclearism is a deeply discrediting contention that the P-5 provide the foundations of responsible global leadership, and therefore have accorded favorable status.

 

What the BAN Treaty makes clear is the cleavage between those who want to get rid of the weaponry, and regard international law as a crucial step in this process, and those who prefer to take their chances by retaining and even further developing this omnicidal weaponry and then hoping for the best. Leaders like Donald Trump and Kim Jung-un make us aware of how irresponsible it is to hope to avoid the use of nuclear weapons over time when such unstable and impulsive individuals are only an arm’s reach away from decreeing a nuclear Armageddon. What the Cuban Missile Crisis of 1962 should have taught the world, but didn’t, is that even highly rational governments of the world’s most powerful states can come within a hair’s breath of launching a nuclear war merely to avoid an appearance of geopolitical weakness (the U.S. initial refusal to remove nuclear missiles deployed in Turkey even though they were already scheduled for removal because obsolete as it feared that such a step would be taken as a sign of weakness in its rivalry with the Soviet Union). Further, we know that it was only the unusual and unexpected willingness of an unheralded Soviet submarine officer to disobey a rogue order to fire off a nuclear missile that then saved the world from a terrifying chain of events.

 

The nuclear weapons states, governed by political realists, basically have no trust in law or morality when it comes to national security, but base their faith in the hyper-rationality of destructive military power, which in the nuclear age is expressed in the arcane idiom of deterrence, an idea more transparently known in the Cold War Era as Mutually Assured Destruction (or MAD!!). It is impossible to grasp the essential links between geopolitical ambition and security without understanding the complementary relationship of deterrence and the nonproliferation regime (its geopolitical implementation to avoid the disarmament obligation of Article VI).

 

In essence, the grandest Faustian Bargain of all times is contained within the confines of the Nonproliferation Regime, which is a geopolitical instrument of control by permanently dividing the world between those that have the bomb and decide who else should be allowed to develop the capability and those who are without the bomb but also without any way to secure a world in which no political actor possesses a nuclear weapons option. In a central respect, the issue between the militarized leadership of the nuclear weapons states and the peoples of the world is a question of trust—that is, a matter of geopolitics as practiced versus international law if reliably implemented.

 

Everything in the human domain is contingent, including even species survival. This makes it rational to be prudent, especially in relation to risks that have no upper limit, and could produce massive suffering and devastation far beyond tragedies of the past. Of course, there are also risks with a world legally committed to prohibit the possession, threat, and use of nuclear weapons, although if nuclear disarmament were to carry forward the overriding intent of the BAN Treaty, a disarming process would seek with the greatest possible diligence to minimize these risks. A world without nuclear weapons would almost certainly be a safer, saner, more humane world than the one we now inhabit.

 

Beyond that it would move national and international policy away from the gross immorality of a security system premised on mass destruction of civilian life along with assorted secondary effects of ‘nuclear famine’ caused by dense smoke blockage of the sun, potentially imperiling the wellbeing of all inhabitants of the planet. The dissemination of toxic radiation as far as winds will carry is an inevitable side effect with disastrous consequences even for future generations. Such an ecocidal gamble is not only a throw of the dice with respect to the human future but also in relation to the habitability of the planet by every living species. As such, it profiles an aggravated form of Crimes Against Nature, which while not codified, epitomize the peak of anthropogenic hubris.

 

It with these considerations in mind that one reads with consternation the cynical, flippant, and condescending response of The Economist: “This year’s Nobel peace prize rewards a nice but pointless idea.” Such a choice of words, ‘nice,’ ‘pointless’ tells it all. What is being expressed is the elite mainstream consensus that it is the height of futility to challenge conventional realist wisdom, that is, the Faustian Bargain mentioned earlier. The challenge is declared futile without even considering the dubious record of geopolitics over the centuries of war upon war, which in the process has deprived humanity of untold resources wasted on generations of deadly weaponry that have inflicted massive suffering and could have been put to many far better and necessary uses.

 

Of course, the BAN Treaty as an expression of faith in the path of international law and morality radically diverges conceptually and behaviorally from the political path of nuclearism, hard power, and political realism. It will require nothing less than a passionate and determined mobilization of peoples throughout the world to get rid of nuclear weapons, and its accompanying deep ideology of nuclearism. This is a far preferable alternative than passively waiting for the occurrence of a traumatizing sequence of events that so jolt political consciousness as to topple the power structures that now shape security policy throughout the world.

 

What the BAN Treaty achieves, and the Nobel Prize recognizes, is that the cleavage is now clear between international law and geopolitics with respect to nuclear weapons. The BAN Treaty provides likeminded governments and animated citizen pilgrim throughout the world with a roadmap for closing the gap from the side of law and morality. It will be an epic struggle, but now at least there are some reasons to be hopeful, which should itself strengthen the political will of the global community of anti-nuclear militants. It is helpful to appreciate that this BAN Treaty was achieved despite the strenuous opposition of the geopolitical forces that run the world order system. Just as Nehru read the outcome of the Russo-Japanese War of 1904-05 as a decisive sign that European colonialism was vulnerable to national resistance, despite military inferiority, so let us believe and act as if this occasion of the Nobel Peace Prize is another tipping point in the balance between morality/legality on one side and violent geopolitics on the other.

 

Apartheid and the Future of Israel/Palestine

20 Sep

 

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

 

 

 

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

 

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

 

2) What are the conclusions of the ESCWA Report?

 

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

 

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

 

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

 

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

 

 

 

3) WHAT WAS THE REACTIONS?

 

We experienced two contradictory sets of reactions.

 

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

 

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

 

4) WHAT HAPPENED NOW WITH THE REPORT?

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

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

 

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

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

 

 

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

21 Aug

 

 

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

 

 

The Relevance of History

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

The Politics of Effective Control

 

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