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

6 Jul

 

 

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

 

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

 

Balance amid Imbalance

 

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

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

 

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

 

 

 

 

Civilian Focus

 

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

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

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

 

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

 

Context

 

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

 

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

 

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

 

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

 

Recommendations

 

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

 

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

 

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

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

 

 

 

Conclusion

 

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

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

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

 

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

 

 

 

Apartheid and the Palestinian National Struggle

28 Apr

Apartheid and the Palestinian National Struggle

 

Preliminary Observations

 

In this period when the centenary of the genocidal victimization of the Armenian people in 1915 is being so widely observed and discussed, it seems especially appropriate to call attention to the comparable victimization of the Palestinian people. This second story of prolonged collective victimization also received its jump start almost a century ago with the issuance by the British Foreign Office of the Balfour Declaration supporting the Zionist movement project of establishing a Jewish national home in historic Palestine. The most striking difference between these two experiences of severe historical wrongs is that the Armenian people are seeking acknowledgement and apology for what was done to their ancestors a century ago, and possibly seeking reparations, while the Palestinian people may sometime in the future have the opportunity to seek similar redress for the past but now their urgent focus is upon liberation from present daily structures of acute oppression. This Palestinian situation is tragic, in part, because there is no clear path to liberation, and the devastation of oppressive circumstances have gone on decade after decade with no end in view.

 

The political puzzle of the Israel/Palestine conflict continues to frustrate American policymakers despite their lengthy diplomatic engagement in the search for a peaceful future that satisfies both peoples. There are significant changes, of course, that have occurred as time unwinds. Perhaps, the most crucial change has involved the gradual extension of Israeli control over virtually the whole of historic Palestine with American acquiescence. This coincides with a growing and more vivid awareness around the world of how much suffering and humiliation the Palestinian people have endured over the course of the last century, and the degree to which this frozen situation can be blamed on the unlimited willingness of the United States to deploy its geopolitical muscle on Israel’s behalf.

 

My approach to the Palestinian struggle reflects four points of departure: first, regarding the long suffering of the Palestinian people as having become the primary international moral challenge of our time, which does not deny that there are other equally serious moral challenges, but none is so implicated in wider global patterns of past injustice or as salient in the political consciousness of the peoples of the world; secondly, believing that international law and morality should be allowed to provide essential guidance in determining the contours of a just and sustainable peace between these two long embattled peoples; thirdly, emphasizing the decisive liberating role of nonviolent civil society militancy in finding a solution for the conflict, achieving liberation from below by the mobilization of people, not the action governments as offering the most promising present scenario for ending the Palestinian ordeal; and fourthly, approaching the struggle for Palestine as matter of human wellbeing without privileging a particular ethnicity, nationality, and religion, that is, from a sense of shared humanity rather than from adversary perspectives of Jewish and Palestinian exclusivity.  

 

The Palestinian struggle is about far more than the ‘end to occupation,’ although the concreteness of the Israeli occupation of Palestine lends itself to visualization, as would Israeli withdrawal, and this partly explains why so many liberal activists equate peace with ending the occupation. Yet conceiving the conflict in this territorial manner is profoundly misleading. It ignores the depth and complexity of what is at stake for both Jews and Palestinians, but especially for Palestinians. I consider the Palestinian national struggle within its broader scope and less distinct parameters as a persisting struggle to achieve the right of self-determination. Self-determination is the solemn promise of common Article 1 in the two international human rights covenants made to all peoples in the world, in effect, a legal, moral, cultural, and frequently a political entitlement to determine collective destiny so long as the equal right of other peoples is not encroached upon. These 1966 covenants set forth the content of international human rights law in their most authoritative treaty form. The extended inability to realize this right is the core tragedy of the Palestinian people, informing the hardships and humiliations of daily life.

 

In some respects, even describing the Palestinian goal in the language of self-determination is too restrictive, and by itself, not very clarifying. Ultimately the preconditions and contours of a just and sustainable peace is what should concern us most. It is an outcome that controversially also addresses the overlapping and conflicting right of self-determination enjoyed by those of Jewish identity who are now long enough resident in Israel to possess their own legitimate basis for claiming self-determination. The key strategy of accommodation is to find the best formula for reconciling these basic competing claims of self-determination, and to reject as unacceptable contentions of their fundamental incompatibility or their resolution by force of arms. It is important at this stage to recognize that Israeli unilateralism and Zionist maximalism are making it increasingly difficult for the affected parties to find such a formula, much less give it life.

 

When considering the content of this underlying right of self-determination additional substantive concerns are disclosed, above all the fate of the several million Palestinian refugees many living for more than 50 years in miserable refugee camps in Jordan, Syria, and Lebanon. If Palestinian goals or the requirements of peace are confined to the territorial language of ending the occupation, the plight of Palestinian refugees tends to be left in limbo or at best consigned to the periphery of peacemaking that implicitly denies any right of repatriation and leaves the refugee communities without adequate representation.

 

There are other challenges facing peacemakers, as well. Edward Said, and other sensitive commentators on the interminable Palestinian ordeal have repeatedly observed that one catastrophic dispossession, that of the Palestinians in 1948, in no way justifies seeking a second dispossession, this time of Jews. In effect, the illegitimacies of the past that have victimized the Palestinians and produced the present intolerable state of affairs, must be put to one side in peacemaking contexts, and the future framed by reference to how Palestinians and Jews can best live together when account is taken of all the circumstances of past and present, including the allocation of rights by the application of international law. This injunction of mutuality should not be interpreted as a readiness to forget the past, or to minimize its relevance. Rather it is an insistence that replicating past wrongs by superimposing on all of historic Palestine a new power structure that excludes or subjugates Jews is not ethically acceptable or politically feasible as goals of conceiving Palestinian empowerment. Said did insist, however, that grave past injustices endured by the Palestinians, especially the massive dispossessions of 1948 and again in 1967, must be confronted and acknowledged by Israel before any sustainable progress toward peace and reconciliation is possible. Similarly, there is no way of reconciling the contending claims of self-determination if Zionism clings to its demand of ‘a Jewish state’ and an exclusive unlimited right of return for Jews only.

 

The contention that Israel has become an apartheid state is highly relevant to grasping the fate endured by the Palestinian people over the course of the last hundred years. Most poignantly, if the quest for Palestinian self-determination continues to fail, the outcome of the unresolved struggle will almost certainly result in the further entrenchment of existing systematic structures of ethnic discrimination. Such structures possess the key elements of the international crime of apartheid. If this is so, it means that the very arrangement relied upon to sustain public order in Palestine and Israel is itself an ongoing international crime of utmost gravity. Apartheid is designated as a crime against humanity in the Rome Statute of 2002, the treaty that regulates the operations of the International Criminal Court.

 

In other words, the present and the future of the Israel/Palestine relationship cannot be understood in neutral, symmetrical, and static terms of both sides more or less equally thwarting the path leading to conflict resolution and enduring the same consequences if that path remains blocked. Unfortunately, this has long been the official American rebuke to both parties. John Kerry, the American Secretary of State, and President Barack Obama, never tire of telling Israel and Palestine that each must make ‘painful concessions’ if the deadlock is to be broken and peace to be attained. Such language conveys a fundamentally distorted image of the present reality because it refuses to take account of the essential and vital difference between the situation of the oppressor and the oppressed, a difference that becomes unmistakable if you experience directly the many dimensions of everyday inequality between the two peoples. [this point is often made by Edward Said. See for instance his last interview: “My Right of Return,” (with Ari Shavit), in Gauri Viswanathan, ed., Power, Politics, and Culture: Interviews with Edward W. Said (Pantheon, 2001, 443-458, esp. 445-449.]

 

The imagery of deadlock and equal responsibility for the unsatisfactory present reality also falsely implies a static situation that would seem detrimental to both sides. This is a false image because with the passage of time Palestine loses, and Israel gains. This is so territorially, but also to live as the oppressor is consistent in most respects with living well, while living under conditions of oppression or as refugees in to varying degrees living badly. Of course, power shifts are common, and roles can be reversed, although this does not seem likely anytime soon.

 

The existing Israel and Palestine interplay is constantly evolving. This understanding leads me to have a quite different overview of the present situation that I will express in a deliberately provocative way–either the future will witness a further entrenching of the Israeli apartheid state or Israel will abandon and dismantle current apartheid structures and accept a Palestinian call for peace in accord with international human rights law, and more generally, agree on steps that need to be taken to realize the Palestinian right of self-determination. As previously stated such a Palestinian realization of self-determination must not be exercised at the expense of a complementary Jewish right of self-determination. This is not meant as an indirect endorsement of Zionist goals as articulated by currently dominant Israeli forces. It is obviously difficult to adjudicate between these overlapping claims of self-determination, and doing so most likely requires help from genuinely detached third parties. Putting this more concretely, a spiritual homeland for the Jewish people in ancient Palestine would could be maintained, but not the current Jewish state with its preferential ethnically framed nationality laws, making Israel what the Jewish leader Henry Siegman perceptively identifies as an ‘ethnocracy’ rather than a ‘democracy.’

 

Let me acknowledge, without delving into the matter, that the Palestinian Authority (PA) and the Palestinian Liberation Organization, the formal representatives of the Palestinian people in international venues, has been partly responsible for the confusion about these fundamental points by seeming to go along with both a territorial definition of the conflict and a solution based on the Oslo process despite it being tainted by the United States acting in the role of intermediary. The PA posits its primary goal to be the establishment of some kind of Palestinian state on the currently occupied territory of the West Bank, and indeed claims that such a state already exists, a position affirmed by the General Assembly in a resolution adopted on November 29, 2012. This also allows Israel and the United States to continue treating ‘the peace process’ as necessitating direct negotiations between the parties despite Israel’s multiple efforts to de facto annex portions of the West Bank at Palestine’s expense ever since the early 1990s. By now it should be evident that these direct negotiations have given the Palestinians zero benefits for the last 20+ years while bestowing on Israel a golden opportunity to pursue its expansionist agenda in violation of international law. The fact that Israel continues to lend rhetorical support to such a peace process sustains for many the illusion that its government favors a genuine effort to solve the conflict through diplomatic compromise. Washington does its part, going sheepishly along not only because it habitually defers to Israel, but because playing this particular diplomatic game enables the United States to continue portraying itself as patron of a process dedicated to producing peace.

 

 

 

Understanding Israel’s Recourse to Apartheid

 

At a conference at the National Press Club on April 10, 2015 in Washington devoted to assessing and depicting the Israel Lobby as it operates in the United States, the influential Haaretz columnist, Gideon Levy, painted a picture of the current Palestinian ordeal concisely with a few verbal brush strokes. He emphatically told the audience what every follower of this ‘peace process’ should have understood long ago: “The two state solution is dead!” What does that mean? According to Levy, neither Israeli motivation nor any practical possibility of moving toward Palestinian self-determination is present, even in that constricted and inadequate sense of territorial empowerment with respect to currently occupied Palestine. Israel’s main policies have long been subversive of the establishment of an independent and sovereign Palestine, the major presupposition of the ‘two state solution.’ The centerpiece of this subversion is, of course, the settlement phenomenon—the establishment and continuous expansion of 121 settlements authorized by Israel (along with 102 so-called ‘settlement outposts’ that are formally unauthorized but are nevertheless officially supported and subsidized) that now provide unlawful homes for between 700,000-750,000 Israeli settlers. This massive encroachment on any future independent Palestine has been abetted by the multi-billion dollar construction of a network of settler only roads, and by building a separation barrier of several hundred miles many segments of which cut deep into occupied Palestinian territory. This notorious wall was authoritatively declared illegal by 14 of 15 judges of the International Court of Justice back in an advisory opinion issued in 2004, endorsed by the General Assembly, and summarily rejected by Israel.

 

Although Levy didn’t explain exactly what he meant by using the word ‘dead,’ it can be interpreted in two distinct ways: first, as Benjamin Netanyahu himself proclaimed in the recent Israeli electoral campaign, as long as he and the Likud Party control the government, Israel will never allow the formation of a Palestinian state in historic Palestine. This also seems to express the real views of a majority of Israeli citizens, and thus the utterance of views to the contrary by Netanyahu and other Israeli leaders for international consumption should be disregarded as a cynical move to placate public opinion; and secondly, even if the words were to be treated as sincere, the settlements, roads, and wall make a viable sovereign Palestinian state incapable of establishment even if Israel some day possesses the political will to bring it into being.

 

The two-state solution has long been what the NY Times columnist Paul Krugman calls a ‘Zombie Idea’, that is, a discredited idea that continues to be accepted as the way to solve a problem because it upholds the self-interest of some powerful political actors, thereby diverting attention from alternative solutions that could be burdensome for those who benefit from freezing the status quo; it is a zombie, as in being a ghost, which lives on beyond its natural death causing torment to those it haunts. In ghostly respect the two sate solution continues to be treated as the only solution for the convenience of the parties, including the United States, Europe, and the UN, despite their private awareness of its irrelevance. During my period as UN Special Rapporteur I was often privy to corridor conversations that acknowledged the absence of any hope for a two state solution, but in public it was business as usual with these same individuals expressing their fervent hopes that talks would soon resume and finally find common ground.

 

 

In the contrasting theater of ‘reality politics’ the prospects are for further Israeli unilateralism. This impression has been reinforced by the selection by the Knesset two years ago of Reuven (Ruvi) Rivlin as President of Israel. Rivlin is a rightest Likud figure long known for his unapologetic embrace of a one state solution that envisions the Israeli incorporation of the whole of occupied Palestine. Netanyahu, a wily politician, differs from Rivlin in fundamental respects, and despite both men belonging to the same political party, they disagree on key issues and are personal antagonists: Netanyahu has previously given lip service internationally to a diplomatic process built around bilateral negotiations, as well as expressing his provisional support on behalf of Israel to a two-state solution; somewhat surprisingly Rivlin, unlike Netanyahu, strongly opposes an apartheid approach to internal Israeli security. In its place, Rivlin offers the Palestinians a Faustian Bargain, if Palestinians agree to live in an orderly manner while foregoing self-determination they deserve to be treated as fully equal citizens within a Jewish state comprising Greater Israel, including a guaranty of unrestricted political participation that might even include a Palestinian victory someday in national elections. [elaborated in by David Remnick, “The One-State Reality,” The New Yorker, Nov. 17, 2014.] To obtain this equality of treatment, the Palestinians would be expected to accept this consummation of the Zionist Project in a form that was originally proposed by Ze’ev Jabotinsky the Zionist visionary who inspired the founding of the Likud Party!

 

It should be obvious that the Palestinians will never agree to such an outcome of their national struggle, which would amount to the acceptance of a humiliating political surrender. In the unlikely event that the Ramallah leadership of the PA ever dared to accept such a deal, perhaps disguised in its presentation by granting Palestinians some community and local rights of self-government, the Palestinian people are almost certain to reject it. Such an arrangement would not bring peace, but at most it would be seen as nothing other than one more ceasefire to be broken by a further cycle of renewed resistance.

 

In effect, combining the physical encroachment on any Palestinian expectations of a viable sovereign state of their own with the rightward drift of internal Israeli politics, makes the apartheid solution a near certainty whether in the form of a perpetuation of the present condition of irresolution or by adopting a version of the Israeli one-state outcome within which discriminatory structures will have to be maintained to uphold public order. In light of such futures, robust Palestinian resistance can be anticipated, and for Israel to contain and suppress it will require police and paramilitary structures of control at least as strong as has has long been operative in the West Bank, and in different modalities in Gaza, ever since occupation commenced in 1967.

 

Again referring to Levy’s Washington talk, he regards the cumulative impact of the occupation as having produced the “systematic dehumanization of the Palestinians.” Collective dehumanization is an almost sure sign of the presence of apartheid when those experiencing abuse are ethnically and territorially distinct, and have a sufficient demographic weight as to consider themselves as ‘a people’ rather than a victimized minority.

My own experience with Palestinians has certainly confirmed this dynamic of dehumanization, but it has also been coupled with shining instances of Palestinian humanization despite everything as well as with Israeli dehumanization associated with forcing its will by brute force on a totally vulnerable people being denied their most elemental rights.

 

At this point, a glance at history helps us appreciate the perversity of this emergence of apartheid in Palestine. It needs to be remembered that the Zionist project received its first decisive international endorsement in a strictly colonialist form, by way of an assurance in 1917 given by the British Foreign Secretary, Lord Alfred Balfour, to Lord Rothschild, the head of the Zionist Movement in Britain, that the British government would “view with favor the establishment in Palestine of a national home for the Jewish people.” At this initial stage, a Jewish state, as distinct from a national home, was neither endorsed in the text nor envisioned as an overt goal, although Zionist leaders seemed to have had this in mind from the beginnings of the movement in the late 19th century. Even the limited idea of a Jewish homeland was qualified by the clause “it being clearly understood that nothing shall be done to prejudice the civil and religious rights of existing non-Jewish communities in Palestine.”

 

The Balfour promise of a Jewish national home was intended to be fused with the British plan to govern the whole of Palestine primarily in pursuit of its strategic goals of safeguarding trade routes to India, and especially the Suez Canal. Britain resorted to its habitual colonial tactic of ‘divide and rule’ with respect to its administration of relations between Jews and Arabs. But as the peace diplomacy unfolded after World War I, the British were forced by the United States to roll back their overt colonial ambitions, and operate within the mandate system that entailed an international commitment to grant Palestine eventual national independence as a single independent state but also contained the Balfour promise of a Jewish national home. In actual fact, the British governed Palestine as a de facto colony during the mandatory period from 1920-1948, but their divide and rule approach backfired as the Jewish presence disproportionately increased and as Zionist statist ambitions became evident they began colliding with British policy. In the end Zionist extremists resorted to systematic terrorism with the goal of inducing the British to abandon Palestine. Palestine became ungovernable, and the British shifted from their divide and rule tactics to the advocacy of a partition plan that would divide Palestine into two national entities, one for Palestinians, the other for Jews.

 

After World War II, when Britain could no longer handle the burdens of administering Palestine, the UN was given the job of addressing these conflicting claims, and in GA Resolution 181 influenced by the British approach, a partition plan for Palestine was approved over the objection of Arab countries. In the UN plan, 55% of historic Palestine was awarded to the Jewish claimants, and the remaining 45% to the Palestinians. Jerusalem was given to neither side nor split, but was designated as a corpus separatum to be administered as an international enclave by the UN with the Trusteeship Council given the assignment.

 

There was no attempt by the UN to implement, or even consider, self-determination by consulting the will of the resident population in Palestine, which was then overwhelmingly opposed to partition. Partition was a paternalistic initiative of the international community that in effect ratified the settler colonialist approach of the Zionist movement as initially facilitated by Britain and later greatly strengthened due to developments in Europe, especially Germany. Not surprisingly partition was at the time rejected by the Palestinian majority population and accepted by the Zionists, resulting in the 1948 War, decisively won by the Jewish side. This battlefield outcome shrank the Palestinian remnant from 55% to 22% of the land, and also de-internationalized the city of Jerusalem, putting West Jerusalem under the control of Israel and East Jerusalem under the administrative authority of Jordan ; in the course of the 1948 war, there occurred the forcible dispossession of an estimated 750,000 Palestinians accompanied by the destruction and depopulation of as many as 531 Palestinian villages. The Palestinians recall and observe these events as the nakba, or catastrophe, a narration of national tragedy that combines the politics of dispossession with the tactics of massive ethnic cleansing.

 

Subsequent consequences, associated with refugee camps in neighboring countries, the 1967 War that resulted in Israel’s occupation of the rest of Palestine, and intensifying hostility toward Gaza, especially after 2006, are viewed by Palestinians as a continuation of the nakba, conceived now more adequately as a process through time rather than as a circumscribed event.

 

If we consider the sweep of developments over the course of the century a pattern emerges that continues into the present. Put simply: ever since the Balfour Declaration of 1917, the Palestinians have survived within a steadily diminished horizon of expectations, while the Zionist Movement was continuously widening its horizons. The unfolding of this dual process can be crudely expressed by reference to three periods: the first, lasting from 1917 to 1947, the mandate period during which the demographic balance of Palestine started shifting due to Jewish immigration, a dynamic accelerated by the emergence of Nazism that also increased international attention to and support for a Jewish homeland, and later, Israeli statehood; secondly, from 1948 to 1967 during a state-building period in Israel, with the West Bank and East Jerusalem administered as occupied territory in the aftermath of the 1948 War by Jordan and Gaza by Egypt; thirdly, from 1967 to the present when these Palestinian territories (as well as the Syrian Golan Heights) were shifted from Arab occupation to Israeli occupation, during which de facto annexation of portions of the West Bank, East Jerusalem, and Golan Heights took place. Gaza was first occupied and settled, with Israel ‘disengaging’ in 2005, but continuing to exert effective control over Gaza through its total regulation of borders, air space, and shoreline.

 

The UN is typically criticized for devoting too much attention to Palestinian grievances while overlooking other issues where the humanitarian urgency is as great or greater. This criticism that is frequently invoked by political leaders in Israel and the U.S. completely overlooks the degree to which the UN, and the League before it, have a special responsibility for the failure to resolve the conflict over Palestine. No where else in the world can such a humanitarian fiasco be laid so directly at the feet of the UN making it seem more appropriate to blame the Organization for doing too little or doing what it did ineptly, rather than blaming it for being obsessively focused on Israel’s wrongdoing with respect to Palestine and Palestinians.

 

 

 

 

The Politics and Ethics of Naming

 

Calling the Israeli domination of Palestinians within the various governmental zones of Israeli domination apartheid is one facet of the wider controversy. For ardent defenders of Israel the mere allegation of apartheid is inflammatory and viewed as so totally inaccurate as to suggest that anyone calling Israel an apartheid state is an anti-Semite. Israel defends its policies toward Palestinians in Israel and under occupation by invoking the democratic character of Israel in which Palestinians vote, form political parties, and enjoy membership in the Knesset. For Palestinians who live outside of Israel under occupation in the West Bank or Gaza, Israel justifies its policies by security considerations. And for the Palestinian refugees, Israel shifts blame to the Arab countries in which they are resident.

 

As the accusation of Israeli apartheid has become more and more mainstream pro-Israeli responses have become harsher. Even revered and eminent figures such as Jimmy Carter and Archbishop Desmond Tutu after expressing their opinion as to the actual and potential apartheid character of Israel have been defamed. Despite this effort to intimidate the use of the terminology of apartheid to describe not only the occupation of the West Bank but also the discriminatory regimes operative in Israel itself and East Jerusalem, as well as the oppressive securitization of Gaza, is increasing. Apartheid as the descriptive label of Israeli policy toward the Palestinian people has been gaining acceptability throughout the world, including within the UN. It has also captured the imagination of many campus groups in the West that organize Palestinian solidarity efforts and justify the BDS campaign under the banner of ‘Israel Apartheid Week,’ believing that the idea of apartheid now better expresses the essential character of Israel’s policies toward the Palestinian people than any other descriptive language. In retaliation, Israel and its NGO global network of support are seeking to criminalize civil society initiatives that flow from the apartheid analysis.

 

It is important to distinguish the political use of the terminology of apartheid in expressive and impressionistic modes from its legal usage in international law, although the two types of usage overlap. The legal conception of apartheid has evolved via the International Convention on the Suppression and Punishment of the Crime of Apartheid adopted in 1973. This treaty criminalized apartheid and made clear that the essence of the crime involved maintaining systematic regimes of extreme discrimination based on race or ethnicity, and although derived from the South African experience the crime was not limited to that particular type of discriminatory separation. The Rome Statute of 2002 that underpins the operations of the International Criminal Court categorizes the crime of apartheid within its broader classification of crimes against humanity in Article 7(1)(j). Article 7 provides a clear definition of apartheid as an: “..institutionalized regime of systematic oppression and domination of one racial group over any other racial group or groups and committed with the intention of managing that regime.” It is understood that ‘race’ is used here in a broad sense to encompass diverse ‘ethnicities’ or ‘religions.’

 

The political use of apartheid in relation to Israel does not attempt to pass legal judgment. It is rather an assessment based on the systematic character of structures of domination and discrimination that cannot be convincingly rationalized as either non-discriminatory or by reference to the reasonable requirements of Israeli security. In the background of the apartheid debate is the overarching idea of international humanitarian law as mainly set forth in the Fourth Geneva Convention to the effect that an occupying power has as its primary obligation the protection of civilians living in a society under occupation, subject only to the right of the occupier to adopt measures necessary to uphold security. The apartheid perception with respect to Palestinians is diverse and fragmented. This corresponds to the sub-regimes of control that Israel has established to deal with different segments of the Palestinian resident population.

 

The most clearly delineated apartheid structures are maintained in the West Bank where there is a pervasive subjugation of the Palestinian population by a regime of rightlessness as administered by Israeli military authorities, and to some extent since 1993 delegated to the Palestinian Authority. This regime gives rise to contrasts between the Palestinian experiences of everyday abuse and uplifting Israeli experiences of the rule of law and the stable life circumstances enjoyed by unlawful settlers. This bright line of discrimination is reinforced by the checkpoints, house demolitions, settler only roads, an intrusive separation wall, settler violence, and epitomized by the grossly unequal allocation of Palestinian water resources.

 

The 1.8 million Palestinians living in Gaza, especially since the Israeli ‘disengagement’ of 2005 followed by the Hamas electoral victory in 2006, have been subjected to the most severe sub-regime of discriminatory domination. The Gazan civilian population has been locked within the borders of Gaza and subject to periodic military attacks, chillingly described in Israel as ‘mowing the lawn.’ Jerusalem and pre-1967 Israel are administered by the government of Israel, and here discriminatory laws are based on nationality and administrative rulings limiting Palestinian rights and stability of residence, denying family unification, restricting employment and education opportunities, and imposing the domination of a Jewish state, creating a situation of pervasive human insecurity for the Palestinian minority. There are also about 1.6 million Palestinians living behind the Green Line within Israel’s 1967 borders as Israeli citizens, while being denied real equality due to this wide variety of nationality laws that blatantly privilege Jewish nationality.

 

In its totality, the Israeli apartheid system can be compared to the colonial governance approach of the British. The British derived security by ‘divide and rule’ tactics while the Israel approach can be summarized as ‘divide, dominate, and discriminate.’ In the first case, we have the traditional format of a colonial power, while in the second, the most obvious label is that of ‘settler colonialism,’ yet it must be particularized in relation to Palestine to be fully understood.

 

 

 

The Palestinian National Movement

 

The Palestinian struggle has gone through a series of overlapping stages during the course of almost a century. There was an early period of a building internal resistance by the native population to continuing Jewish immigration during the mandate period coupled with growing Zionist influence and militancy in Palestine. The British colonialist approach tended to support this buildup of the Jewish presence in Palestine, initially feeling more kinship with Jews as mainly fellow Europeans. This widening cleavage eventually led the British and then the UN to seek stability and conflict resolution via partition, dividing the two peoples territorially, with the hope of creating separate polities. The British reached the conclusion, which was endorsed by the UN, that Jews and Palestinians would never peacefully live together, and that separation was the only viable approach. This idea of partition, eventually accepted as a goal by many world leaders, including those representing the Palestinian people, has since the 1990s morphed into ‘the two state solution.’ Among its original flaws, aside from the arrogance of imposing a solution from without and above, was the dispersion of the native Palestinian population throughout all of Palestine, whereas the Jewish population was confined to certain portions of the country. This meant that even with dispossession many Palestinians would find themselves captive in the incipient Jewish state, and consigned to the status of a subjugated minority in what had been their homeland for countless generations.

 

The failure of partition led to a phase of Arab belligerency in relation to the Palestinian struggle. In wars waged in 1948, 1956, 1967, and 1973, it was the goal of neighboring Arab countries to liberate Palestine and Jerusalem by joint military action. These efforts were unsuccessful, resulting in a series of Israeli military victories, coupled with territorial expansion, and belligerent occupation.

 

The failure of such liberation from without was followed by a period of resistance from within, the formation of the Palestinian Liberation Organization under the leadership of Yasir Arafat. This rise of national resistance activity was especially pronounced in the years following the 1967 War, a period of nationalist resurgence by the Palestinian people. It was in this period that Palestinian armed resistance activity began being portrayed in the West as ‘terrorism’ and its suppression by Israel was welcomed, especially in reaction to internationalizing the Palestinian struggle through the staging of shocking violent incidents at the Munich Olympics, hijacking, exploding planes, attacking airports and passenger ships.

 

Armed struggle by Palestinians also was discredited and defeated by Israel’ effective counter-terrorist tactics and by its ability to tilt in its favor the media treatment of the conflict. In a spontaneous show of civil society activism, the Intifada of 1987 created a new previously unexpected challenge to Israeli dominance. In a show of populist unity and courage, ‘the war of the stones’ was defiantly waged by the Palestinian people. It communicated to the world the dramatic refusal of the Palestinian people to allow the occupation to be normalized. The inequalities in weaponry and suffering between the two sides began to shift the balance in the war of ideas and images, especially giving enhanced credibility to Palestinian narratives of victimization.

 

In response, the conflict once again became internationalized. The United States playing a leading role, culminating in the formulation of the Oslo Framework of Principles solemnized by Itzaak Rabin and Yasir Arafat with a historic handshake on the White House Lawn in 1993. Oslo diplomacy reflected the power disparity that exists between Israel and Palestine, and the naively bewildering trust of the Palestinian leadership in the good offices of the U.S. Government to deliver a decent agreement. It should not have been surprising that the diplomacy over these many years was of a one-sided variety that relied on fruitless periodic negotiations between the parties, with the United States serving as intermediary and wrongly assigning blame for failures to find an agreed solution to the inflexibility of the Palestinians.

 

The unwillingness of Israel even to stop settlement expansion during the negotiating sessions both exhibited the one-sidedness of the process and the underlying absence of political will in Israel to reach a fair settlement. Of course, there is an element of subjectivity with respect to the content of ‘fair,’ but international law could have offered guidelines had it been allowed to be relevant. And what is objectively clear was translating Israel’s unlawful ‘facts on the ground’ into new negotiating positions that continuously diminished Palestinian prospects. In retrospect, the Oslo diplomacy was based on the relative bargaining power of the two sides, combined with the intensity of their respective political will. It was also shaped by the American deference to Israel’s policy priorities, above all, its refusal to give ground on the right of return of dispossessed Palestinian refugees or to accept shared governmental authority in Jerusalem.

 

The intifada was the basis for what later became the legitimacy war strategy of struggle. The energy of Palestinian resistance shifted from top down to bottom-up, that is, to the agency of civil society. The formal authority or top-down Palestinian leadership is being bypassed. There is a rejection under existing conditions of both armed struggle and inter-governmental diplomacy, including via the UN. Major mobilization efforts are directed at delegitimizing Israeli policies and practices, as well as stimulating militant forms of nonviolent coercive support for Palestinian empowerment and liberation. This Palestinian version of a legitimacy war has been deeply influenced by the successful anti-apartheid campaign in South Africa, and has centered its actions in relation to a comparable BDS Campaign that responded to an appeal from a coalition of Palestinians NGOs in 2004, and has been gaining global momentum, including within the United States, especially, in the aftermath of the massive military onslaughts carried out against Gaza in 2008-09, 2012, and 2014.

 

Many sympathetic commentators believe that the Palestinians are winning this Legitimacy War, including the important Palestinian founder of the Electronic Intifada, Ali Abunimah. It is also the thesis of my book Palestine: The Legitimacy of Hope. I take note of the international experience since the end of World War II in which the side that prevailed in a Legitimacy War generally controlled the political outcome of conflicts, despite being militarily inferior. Recourse to a Legitimacy War strategy usually reflects two kinds of developments: a societal sense of moral outrage that combines with the refusal of governments and international institutions to promote a just solution.

 

This unfolding of the legitimacy discourse has definitely moved in a direction favorable to Palestinian hopes. In the years following World War II, Israel was seen as the David battling the Arab Goliath, with Israel scoring unexpected military victory after military victory against hostile larger neighbors accused of seeking to throw the Jewish people into the sea. The Palestinians were portrayed as ‘rejectionists’ that defied the UN’s plan widely deemed at the time in the West to be a reasonable compromise. This negative image of Palestinian political behavior was further strengthened by the portrayal of Palestinian resistance as ‘terrorism.’ This violence was widely perceived as unacceptably threatening the Jewish people, and reminded the world of the Holocaust and the fate of Jews during the Nazi period. Such a link between Jewish victimization in the Holocaust and the Palestinian/Arab struggle was strongly promoted through intense Israeli propaganda efforts. (hasbara)

 

This image, which remains strong in the West, and certainly is powerful in the United States where Israel is viewed not only as the most admirable and dynamic country in the region, but also as the most important strategic partner Washington possesses and a recipient of intense support in Christian evangelical circles. This strategic bonding was greatly facilitated by Israel’s military prowess as revealed in its victorious wars, especially the 1967 War, and given additional reinforcement through its long experience of counter-terrorism that was treated as a major Israeli contribution to American security policies in the aftermath of the 9/11 attacks.

 

Concluding Comments

 

The basic drift of my argument is as follows:

            –UN authority was not able to obtain a solution;

            –armed struggle and international statecraft were tried, but both failed to resolve the conflict or improve the Palestinian position;

            –what this leaves is either Israeli unilateralism, carrying out the Zionist endgame of incorporating the whole of Jerusalem and the West Bank into Israel, and claiming to be the state of the entire Jewish people, or a Legitimacy War victory by the Palestinian people that induces a cycle of ‘new diplomacy’ on a level playing field;

            –in the interim, any further attempts to revive the Oslo diplomacy, even enjoying should they enjoy the cynical of the Netanyahu government should be resisted as a dead end that is more harmful to the Palestinian struggle than is facing the realities of Israeli expansionism.

 

Given this understanding of the conflict, and considering the extraordinary record of military assistance given to Israel by the United States government, the American people have an increasingly dishonorable connection to the conflict. The American indulgence of Israeli exceptionalism includes issuing a free pass to Israel when it secretly became a nuclear weapons state. American citizens have a special responsibility for the long ordeal of the Palestinian people. The Jewish philosopher, Abraham Heschel observed “[f]ew are guilty, but all are responsible.” The Legitimacy War scenario gives each of us ample opportunities to exercise our individual responsibility. We owe the Palestinian people and ourselves nothing less.

 

Opposing Impunity for Geopolitical Criminality

5 Apr

 

 

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

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

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

 

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

 

 

 

 

‘Lawfare’ and Liberation

23 Feb

Positive and Negative Forms of ‘Lawfare’

 

Issues of law and ‘lawfare’ are recurrent features of foreign policy debates in the United States. On the side, are efforts by peace activists and others to condition the behavior of all states, and especially the United States, by reference to authoritative limits on national discretion as encoded in the UN Charter, a binding treaty. In opposition to a law-oriented foreign policy for the United States are a variety of arguments that rely either directly or indirectly on a version of ‘American exceptionalism.’ Such arguments do not repudiate international law, but condition its applicability to American behavior and that of American allies, and insist on the implementation of international law in relation to the alleged unlawful conduct of adversaries (e.g. Russia involvement in eastern Ukraine)

 

On the other side of this discourse is the various forms of ‘lawfare’ as an instrumental use of law to achieve valued ends, positive or negative. In these roles international law can mobilize public opinion and government policy to support or oppose particular undertakings. In this limited sense it is appropriate to conceive of ‘lawfare’ as ‘soft power goepolitics’ or as a form of ‘asymmetric warfare’ waged by political actors deficient in hard power.

 

It was during the presidency of George W. Bush that the neocons decided that recourse to international law was a weapon of the weak that interfered with the grand strategy of the United States, especially in the Middle East. The terminology of lawfare was adopted by both advocates of reliance on international law as constraints on American (and Israeli) policy and by those who sought to denigrate invocations of international law as obstructive tactics that interfered with the protection of security in a post-9/11 world. In reaction to the Goldstone Report (2009) there was launched a notorious ‘Lawfare Project’ that viewed reliance on international law within the UN setting in a manner highly critical of Israel was a new form of ‘asymmetric warfare’ that needed to be countered to avoid the delegitimizing of Israel as a democratic sovereign state. This kind of interpretation dominated a conference at Columbia Law School, featuring the participation of the Dean, David Schizer, that denounced the Goldstone Report and human rights NGOs and was organized by a coalition of pro-Israeli organizations.

 

I regard lawfare as the use of the rules and procedures of law more neutrally, as instrumental uses of law to achieve or block policy outcomes. My focus is on international law, but the same dynamics apply to internal uses of law. The website, ‘LAWFARE,’ affiliated with the Washington think tank, The Brookings Institution, and bolstered by the active participation of some Harvard Law School conservative faculty, uses lawfare in this neutral, instrumental way, although its government oriented biases dominates its commentary.

 

There is a problematic side to international law that reflects its crafting and evolution over the centuries. International law definitely was developed to rationalize the interests and projects of the dominant political actors in the West. International law proved useful in giving a legal cover to colonial rule, unequal and imposed treaties, and to stabilize the expropriation of the natural resources of countries in the global South. At the same time, counter-hegemonic efforts were made to give international law quite different impacts, especially in Latin American settings. The effort was to put forward international law doctrines to strengthen the sovereign rights of weaker countries, especially in the context of economic relations.

 

Beyond the law on the books, there are the ambiguities created by state practice, especially with regard to peace and security, given the absence of any central governing authority or legislative institution on a global level to pronounce upon disputes about interpretation or to agree upon changes in governing rules. As a result, many ‘violations’ of international law serve as ‘precedents’ for the establishment of new norms; power generates law, and its interpretation, whether or not it serves the cause of justice. Further, with the veto in the UN Security Council giving the permanent members, and also indirectly their friends, a ‘legal’ right of exception with respect to compliance with international law. Such an interface between power and law offers an additional reason to be skeptical about any present claims of a global rule of law.

Against this background, I find it clarifying to distinguish between positive and negative uses of lawfare. I identify positive uses to be efforts to insist that international law be upheld to the extent that it serves values of peace, justice, and human dignity, and that its guidelines and conceptions of right, be generally treated as authoritative in diplomatic arenas concerned with the peaceful resolution of conflicts or initiatives designed to implement international criminal law, including making use of procedures to impose accountability on leaders of sovereign states. In these positive uses, there is an overall compatibility between lawfare and the pursuit of justice, although to express this conclusion inevitably reflects subjective perceptions and outlook. Other commentators on international law can and do have different views on such matters.

 

I identify negative uses of lawfare to be efforts to denigrate reliance on the procedures and norms of international law in seeking to pursue rights or hold individuals accountable for violations of international criminal law. The neocons were clear about their refusal to bind the pursuit of American foreign policy goals by shows of respect for international law. Their visions of American grand strategy regarded it as naïve and unhelpful to introduce international law dimensions into policy debates about the use of force. In this vein, thinking mainly about uses of force in defiance of the UN Charter and international law, several prominent neocons, including Douglas Feith and Paul Wolfowitz, showed their contempt of international law as nothing more than ‘a weapon of the weak’ that should not be allowed to alter the behavior of the strong, and in effect, justify the disregard of such legal objections to hegemonic policies as mere tactics of the outgunned side in an asymmetric war.

 

By way of illustration, the exclusion of international law from the Oslo Framework for resolving the Israel-Palestine conflict was clearly an effective instance of negative lawfare, denying for many years the Palestinians the benefit of claiming their rights by reference to international law. An example along the same lines were the punitive responses made by Israel and the United States to initiatives of the Palestinian Authority to seek statehood within the UN System and then on that basis to become a party to international treaties, including most controversially the Rome Treaty, which facilitates access to the International Criminal Court. The essence of this important example of negative lawfare centers on blocking, retaliating against, and denigrating attempts by political actors to make use of available procedures and legal norms to uphold their rights against those who rely on hard power to sustain oppressive structures. .

 

Lawfare can operate negatively or positively on any level of social interaction. When activists seek to encourage divestment of holding in companies doing business associated with seeking commercial gain from transactions or projects with unlawful Israeli settlements this is positive lawfare, with unlawfulness serving as an indicator of illegitimate behavior. When such initiatives are blocked by a legal technicality to frustrate efforts to encourage or demand divestment, invoking law becomes negative lawfare. This happened recently at the University of California at Davis. Interestingly, as in this divestment context, what is being called ‘law’ are organizational rules operative with a university setting, and not associated with legal rules generated by governmental institutions.

 

There is no way to simplify or generalize the role of law in human affairs. Its proper assessment depends on taking into account the structural circumstances (for instance, law as administered by Israel as the occupying power in the West Bank imposes unjust and coercive policies and practices) and on context (for instance, Palestinian reliance on their claims of right based on international law with respect to the right of return of Palestinian refugees, Israeli settlements, status of Jerusalem, control of water). Legal discourse disputes these rights in a variety of ways. Palestinians invoke the authority of the UN General Assembly to vindicate their claims, while Israel claims the authority to put forward its own ideas about insisting that occupied Palestine is a territory of ‘disputed sovereignty’ and as such outside the domain of international humanitarian law.

 

As long as complex societies exist and actors have their own agendas and priorities, rules and procedures will be manipulated for the benefit of one or

another actor. This inheres in social process. What has happened recently calls for further reflection. Law has been used as an instrument to seek justice and law has been used as a means to gain and secure positions of strategic advantage. ‘Lawfare’ merely makes this tug of war between those that want to invoke international law and those that believes it unduly burdens statecraft

a more systematic reality.

 

 

 

 

 

 

 

 

Interview with William Schabas, former Chair, UN Commission of Inquiry for 2014 Israeli Attack on Gaza

16 Feb

[Prefatory Note: I am posting an interview conducted by email in recent days with Professor William Schabas in the immediate aftermath of his resignation as Chair and Member of the three person Commission of Inquiry appointed by the UN Human Rights Council last August to investigate allegations of violations of international human rights and international humanitarian law, as well as state crimes associated with Israel’s military attack on Gaza (code named by Israel as Operation Protective Edge) of July-August 2014. The depleted commission now consists of the remaining two members (Mary McGowan Davis of the United States as the newly designated Chair, and Doudou Diène of Senegal) and is due to submit its final report to the HRC in March; Professor Schabas, a distinguished specialist in international criminal law with a worldwide reputation is on the faculty of Middlesex University in London, had participated fully in planning the inquiry, the gathering of evidence, listening to witnesses. His exclusion from the drafting of the report deprives the Commission, and hence the HRC and the international community, of the member with the greatest professional credibility and reputation for no acceptable reason.

 

As has so often been the case when Israel faces the prospect of criticism it mounts an array of charges of bias directed at both prominent individuals and their institutional sponsors. This was my experience as Special Rapporteur for Occupied Palestine during the entire period of 2008-2014 in which I was subject to continuous defamatory attacks, spearheaded by UN Watch, a notorious NGO that avoids the message while mounting a furious attack on the messenger, seeking to blacken my reputation by writing letters of personal denunciation to a variety of prominent persons, who took such tactics far more seriously than they deserved. Israel officially charged me with bias at the time of my appointment, including issuing a Foreign Ministry declaration of non-cooperation, implemented in December 2008 when I tried to enter Israel on a HRC mission on behalf of the UN and was expelled after being held in a detention cell overnight.

 

In September 2009 when the Goldstone Report was issued after an inquiry similar to the one that Scshabas was chairing, prompted by the 2008-09 Israeli attack on Gaza (Operation Cast Lead). Richard Goldstone, a prominent liberal figure at the time but also a dedicated Zionist with close personal and professional connections to Israel, was put under pressure from the outset to decline the appointment, and Israel as in this case refused to allow the UN to enter Israel to carry out its fact finding mission in the most efficient manner. Although the Goldstone Report was fair and balanced, it was viciously attacked from the first moment of its presentation as ‘a blood libel’ against the Jewish people, and Goldstone personally was vilified by Israel’s most prominent political leaders, including the Prime Minister and President. This relentless pressure led Goldstone to retract on his own a crucial finding of the report as to the deliberate use of force by the IDF against Palestinian civilians, an action mainly discrediting of Goldstone himself, as the finding of the report continued to enjoy the support of the other three distinguished members of the inquiry group, including by Christine Chinkin of LSE, one of the world’s leading experts on international humanitarian law.

 

William Schabas’ resignation has its own disturbing specific context, although it bears the imprint of Israel’s determination and skill in mounting campaigns of bias to discredit whoever has had the professional willingness to present unpopular truths concerning allegations of state crimes by Israel arising out of its controversial uses of force in Gaza and overall unlawful occupation administration. As explained in the interview, Schabas was responding to Israeli charges of bias from the outset of his appointment, but with a recent emphasis on the fact that he had some years ago prepared as a modestly paid consultant a short technical report for the Palestinian Liberation Organization on the international law questions associated with a possible Palestinian application for membership in the International Criminal Court. Schabas’ attackers had gained enough traction in recent weeks to induce the President of the HRC to propose referring the question of Schabas’ bias to the UN Legal Affairs Office for resolution. Rather than see the work of the COI diverted and delayed by this side issue, Schabas chose to resign. As is usual in these cases, when a person who stands forth in public for truth and principle as Schabas has done since the beginning, there follows a flow of hate mail and death threats that appear to be the work of pro-Israeli extremists who consider critics of Israel as ‘Jew-haters’ or worse. It is important that those of us who seek a sustainable and just peace for the region stand in solidarity with William Schabas who knowingly stepped into this toxic environment because of his lifelong commitment to strengthening the role of international criminal law in protecting the innocent and punishing the guilty. It is a shameful reality that Israel has been so successful in mounting these campaigns within the United Nations against its more visible critics, and by so doing divert needed attention from its own persistent and flagrant wrongdoing from the perspective of international law. ]

 

 

Interview with William Schabas, recently resigned under pressure as Chair of the Commission of Inquiry appointed by the UN Human Rights Council in Geneva to Investigate Allegations of State Crimes associated with Israel’s military attack on Gaza, code named Operation Protective Edge

 

  1. When you accepted the position of Chair of this Commission of Inquiry into allegations of criminality directed at Israel and Hamas in relation to Israel’s military operations in Gaza during July and August 2014, what were your hopes and worries? Were these borne out by your actual experience?

 

This was not the first time I have been asked to do something by the High Commissioner for Human Rights. I have never said no when asked. I am a loyal and enthusiastic supporter both of the High Commissioner and of the Human Rights Council. Thus, when initially requested by the High Commissioner if I would agree to have my name submitted as a candidate for the Commission and then by the President of the Human Rights Council if I would agree to be a member of the Commission I did not hesitate. I considered it an honour that both of them thought I could do this challenging job of participating in the Commission. I should add that I was never asked whether I would be the Chairman and only learned that I had been selected for that job when the announcement was made.

This was not the first such Commission. In particular, in a sense it follows in the footsteps of the Goldstone Commission. But there have been other inquiries since Goldstone and a huge amount of work conducted by special procedures of the Human Rights Council and by other UN institutions over the decades. When the most recent Commission of Inquiry was established, I think I believed that we would be a small piece in this much bigger mosaic of initiatives. I hoped the Commission would contribute both to justice and peace but my expectations were modest. On more than one occasion, I said that the difference between this Commission and its predecessors was that this time the International Criminal Court was standing in the wings. The State of Palestine had already begun ratifying international treaties. It acknowledged that accession to the Rome Statute was on its agenda.

 

  1. How did the work of COI proceed? Were you pleased with the workings of the undertaking as a whole? Do you expect that your resignation will have effects on the conclusions of the report, the reception of its findings, and their likely implementation?

 

I need to be very careful here because the Commission has not been very public in its activities. It has gathered a huge amount of material. It has also met with many individuals – victims, experts, human rights activists, UN officials, representatives of governments, diplomats – but these ‘hearings’ were not open to the public. Some of those who met with the Commission, in particular a delegation of Israelis that travelled to Geneva in January 2015, publicized their meetings with the Commission. But as a general rule, the identity of those who met with the Commission has not been divulged.

I regret not being able to contribute to the drafting of the report. That job was only beginning at the time of my resignation. I am confident that the professional staff of the Commission, consisting of a dozen specialists, and the two Commissioners will produce a fair and effective report.

Although Netanyahu has called my departure a victory, my own sense is that he has shot himself in the foot or, as they say on this side of the Atlantic, scored an own goal. His strategy seems to be based on the idea that he will be able to prevent the report from appearing. But I think he is very wrong here. Instead of keeping his powder dry, he has fired one of his best pieces of ammunition in order to eliminate me. Now, it is harder for him to attack the Commission and its report.

 

  1. Can you explain your rationale for resignation more fully? Were you influenced by the experience of Richard Goldstone and the Goldstone Report?

Were you not aware when you were approached that these issues of supposed ‘conflict of interest’ would be used to challenge your credibility in a defamatory manner? Was the decisive factor the unanticipated response of the President of the Human Rights Council to the contention about your consultancy with the PLO on Palestinian statehood?

 

There had been calls for me to resign from the moment I accepted the mandate in early August 2014. I did not ignore them but I concluded that they were not substantial. I do not think that I was biased or that there was a reasonable apprehension of bias. The allegation about the legal opinion I delivered to the PLO in October 2012 only emerged in late January. It seems the Israeli ambassador raised this informally with the President of the Human Rights Council who then drew it to my attention and asked me to explain, which I did. Subsequently, Israel made a formal complaint. The President proposed that legal advice from the United Nations in New York be requested in order to determine the procedure to follow in examining the complaint. The five-member Bureau of the Council agreed to this. Within minutes of its decision, I submitted my resignation.

I think that when there is an inquiry or investigation into the impartiality of a member of a tribunal or similar body, it is problematic for that body to proceed with other matters until the issue of impartiality is resolved. It was my own assessment that it would be difficult for the Commission to continue to work until my status had been determined. That was likely to take weeks. At best, it would distract the Commission from its important work at a crucial phase. At worst, it would prevent the Commission from completing its report by the March session, as it was required to do. Although I would have preferred to fight and defend myself from the unfair charges of conflict of interest, I considered that I had become an obstacle to the Commission completing its mandate. The least bad solution was for me to get out of the way.

Your question seems to imply that I should have seen all of this coming and extricated myself from the business much earlier. I cannot say I did not consider this in August when I saw how brutal and vicious the attacks on me had become. An important difficulty then was that already one of the three members who had been appointed had taken the step of withdrawing. Amal Clooney had initially been named along with myself and Doudou Diene. It seems there was some kind of misunderstanding. Within a few hours of the announcement of her appointment, she said that she could not serve. For me to withdraw subsequently would, I thought at the time, have been disastrous for the Human Rights Council. Bear in mind that the conflict in Gaza was still raging at the time. I decided that I would tough it out. I did not accept the charges of bias. It is easy today to second guess this. I should add that despite the nasty attacks from predictable directions, there was great support for the Commission of Inquiry. In September, the President of the Council reported to the plenary Human Rights Council. UN Watch and its friends howled about the composition of the Commission but there was no reaction from the members of the Council. In particular, on various occasions the European member states, who had abstained in the resolution establishing the Commission, reassured the three Commissioners of their support for its work and its activities.

 

  1. In retrospect, do you find any substance to the charges of bias or conflict of interest? How can one be both an expert on this subject-matter and not have some pre-existing opinions? Should not the proper test be one of professionalism and objectivity with respect to the evidence and applicable law? For instance, would a person who had been critical of Nazism or apartheid be rendered unfit to investigate allegations of crimes against humanity or racism?

 

The word ‘bias’ gets thrown around a lot in this discussion. My attackers constantly claimed that I was ‘biased’. All that they meant was that I had an opinion different from their own. When one talks about bias in the context of judicial independence and impartiality, the issue is not whether the individual in question has opinions that have been expressed in the past. Everyone has opinions. Some conceal them. Others, like myself, wear them on their sleeve. But bias only occurs when an individual charged with a task requiring fairness and impartiality is unable to set his or her opinions aside. There is absolutely no evidence to support such a charge against me on this basis.

Lawyers often talk about ‘perception of bias’ or ‘fear of bias’. This is more subjective. It will occur when someone has a close personal relationship with a litigant or when financial interests are involved. There is reasonable concern that someone placed in such circumstances would have difficulty being impartial. But again, there is nothing of the sort in my situation.

Until the issue of the legal opinion that I provided in 2012 for the PLO arose, the only serious charges against me concerned a couple of statements I had made about Netanyahu. They were presented out of context to suggest that I had some kind of obsession with the man. In one case I was reacting to Netanyahu’s attack on Richard Goldstone. Netanyahu had said that Goldstone was one of the greatest threats to the survival of Israel. I said that I thought Netanyahu was the greatest threat to Israel’s survival. In the other I was talking about double standards at the International Criminal Court. I cited Desmond Tutu, who had criticised the African focus of the Court and said that he wanted to see Tony Blair brought before it. I said that my choice would be Netanyahu. Otherwise, I had not really thought much about the man. I of course stand by what I said. I have never said that I regretted making those remarks. I have never retracted them. I had a right to say them.

Could the UN have found someone who would be qualified to work on a Commission of Inquiry who did not have opinions about Israel and Palestine? Perhaps. Is there a thoughtful, well-informed individual on the planet who does not have an opinion on this?

The Israeli complaint about the legal opinion I had done for the PLO precipitated the chain of events that led to my resignation. Israeli called it a blatant conflict of interest. That is simply wrong. I did the opinion about two years before my appointment. It concerned Palestinian accession to the Rome Statute. I’ve done this for other governments too, helping them to address the legal issues involved in joining the International Criminal Court. I’ll gladly do it for others too, including Israel and the United States, if they ask me. The legal opinion for the PLO was the work of a recognised expert in the field. Although the PLO later acceded to the Rome Statute, it seems it was unimpressed with my legal advice because it did not accede in 2012. But that’s the nature of a legal opinion. Political leaders respond to other imperatives, which is quite understandable. I was not giving the PLO political advice. I was not their advocate or lawyer. I was simply providing a technical service. From beginning to end the whole matter lasted a couple of weeks. I received the request by e-mail and delivered the opinion by e-mail. I was paid a modest amount for my work. This is not a conflict of interest.

I have been struck by the failure of those who have challenged my presence on the Commission to engage with the legal authorities. For example, in 2004 Israel applied to have Judge Elaraby removed from the International Court of Justice in the advisory opinion on the Wall. The application was dismissed almost unanimously by the Court. Judge Elaraby had been a senior diplomat in Egypt and had frequently expressed views about Israel and Palestine. Judge Elaraby had been legal advisor to Egypt for part of his career. He certainly gave legal opinions to Egypt about the conflict over the years.

An Israeli academic friend of mine has drawn my attention to Hersch Lauterpacht, who was a strong supporter of Israel. He even wrote a draft of the declaration of independence, and provided advice to the Zionist movement and the State of Israel at various times. He was elected a judge of the International Court of Justice. Lauterpacht sat in the Israel v. Bulgaria case, which was dismissed at a preliminary stage but with Lauterpacht in dissent. Israel didn’t object that time.

Your reference to a person with views on Nazism is of interest because this was precisely the argument raised by Eichmann against the Israeli judges. There was never any suggestion that the three judges, all of them German Jews, did not have strong views about the Holocaust. It was assumed that they did. How could that not be the case? The Supreme Court of Israel ruled that professional judges would set aside their opinions and judge in an impartial manner.

 

  1. On the basis of this experience, would you accept future assignments from the HRC or OHCHR? Were you a victim of a campaign of defamation waged by UN Watch, NGO Monitor, etc.?

 

Of course I will continue to serve the Human Rights Council and the Office of the High Commissioner for Human Rights. These two institutions are central to the international protection of human rights.

The charges of bias against me were nothing more than a witch-hunt, something reminiscent of McCarthyism. Shortly after I was appointed, Rabbi Shmuley Boteach published full-page ads in the New York Times, the Wall Street Journal and the Washington Post attacking my appointment. These were full of vicious lies. They dealt with matters that had nothing whatsoever to do with the mandate of the Commission. For example, I was described as a ‘friend of Iran and its genocidal former President Mahmoud Ahmadinejad’. This is simply a lie. In 2012, I was a member of the Iran Truth Commission that condemned the Iranian regime for gross violations of human rights. In 2011, I accompanied filmmaker Sandra Schulberg to Tehran in order to show her film Nuremberg, Its Lesson for Today. I spoke there about the Holocaust to young Iranians, confronting denialism and anti-Semitism in the lion’s den, so to speak.

 

  1. Overall, what did you learn from this experience that bears on the role and limitations of the UN? Is the Israel/Palestine conflict a special case? What can be

done to depoliticize the process of such fact finding and policy making undertakings? Did the approach of the Canadian Government of not backing its own citizens play a role in making you more vulnerable to the Israeli pushback?

 

I think that Israel and Palestine is indeed a special case in UN activity because of the highly politicized context. Fact finding commissions dealing with Syria, Libya and North Korea simply do not confront the hysteria associated with Israel and Palestine. Israel argues that it is a victim of double standards at the Human Rights Council. But it is a beneficiary of double standards at the other Council. This is a nasty, toxic matter. But the job must be done. I hope that those who will be called upon to pursue these issues within the United Nations will not be intimidated by stories of the intense and vicious attacks to which I was subjected, including death threats and unceasing abuse on the internet, much of it quite vile, violent and even racist. The language employed by Israel’s leaders contributes to this terrible atmosphere and, at least indirectly, incites the more fanatical participants. Last week, Foreign Minister Liberman likened me to Cain, a man who murdered his own brother. I must confess to having punched my brothers a few times, when I was much younger, but I have never murdered anyone! The Israeli representative to the UN described me as ‘Dracula’. But such analogies only contribute to the violent tone of the discussions.

Canada’s foreign minister, John Baird, denounced my appointment. I’m a Canadian citizen who has served his country in a variety of ways. I am an Officer in the Order of Canada, one of the country’s highest honours. The current government of Canada is run by a nasty, right-wing bunch who have greatly tarnished the country’s once rather noble position in the field of human rights. Their reactionary positions are well known within the Human Rights Council and, more generally, the United Nations. It would have been an embarrassment if Baird had approved of my appointment.

 

  1. On balance, how would you compare this COI with that chaired by Goldstone? My impression is that with Goldstone, there was a posture of noncooperation, but no public campaign until the report was issued, and then an ugly multi-level campaign took shape, and led to his partial retraction and total discrediting (especially as he acted without the support of the other three members with whom he apparently did not even consult). How should such COIs be structured in the future? (you may know that my successor as SR had no prior knowledge, and has made the position almost invisible, which may have been the intention).

 

I wish I had a good answer to your question. It is tempting to say that in the future, the UN should vet appointees in the way that US government officials vet judicial nominees and similar appointments. As you know, there is no shortage of judges in the US who get through congressional approval because they don’t seem to have ever had an opinion about abortion or capital punishment and similar issues. Maybe the UN can identify a similar cohort of human rights experts who have never had opinions on important issues. Given that the nature of human rights work involves participating in various forms of activism, that may prove more difficult than similar exercises in the US judiciary. And it is also likely to eliminate some of the best qualified candidates from the pool.

What I would like to see is more pushback on these wrong and unfair charges of bias and conflict of interest. Some clarification on what is and what is not acceptable would make things clearer. I would like to see some UN guidelines that spell out the fact that the mere fact of having expressed opinions about a situation or a crisis does not disqualify someone from being a member of a Commission of Inquiry or serving in some similar function. It could also be made clear that providing a legal opinion in the past on a matter not directly related to the subject-matter of a commission is not a conflict of interest. The charge of bias seems far too easy to throw around. When it gets before courts, as it did in the International Court of Justice and the Supreme Court of Israel, it doesn’t get much traction, however. Let us get more clarity on this within the UN so that demagogic charges of bias can be knocked out early.

The Irrelevance of Liberal Zionism

4 Jan

 

 

Frustrated by Israeli settlement expansion, excessive violence, AIPAC maximalism, Netanyahu’s arrogance, Israel’s defiant disregard of international law, various Jewish responses claim to seek a middle ground. Israel is criticized by this loyal opposition, sometimes harshly, although so is the Palestinian Authority, Hamas, and activists around the world. Both sides are deemed responsible in equal measure for the failure to end the conflict. With such a stance liberal Zionists seek to occupy the high moral ground without ceding political relevance. In contrast, those who believe as I do that Israel poses the main obstacle to achieving a sustainable peace are dismissed by liberal Zionists as either obstructive or unrealistic, and at worst, as anti-Israeli or even anti-Semitic.

 

Listen to the funding appeals of J Street or read such columnists in the NY Times as Roger Cohen and Thomas Friedman to grasp the approach of liberal Zionism. These views are made to appear reasonable, and even just, by being set off against such maximalist support for Israel as associated with AIPAC and the U.S. Congress, or in the NY Times context by comparison with the more conservative views of David Brooks (whose son currently serves in the IDF) who published a recent ‘balanced’ column lionizing Netanyahu, “The Age of Bibi” [Jan. 2, 2014]. Of all the deformed reasoning contained in the column, perhaps the most scandalous was comparing Netanyahu to Churchill, and to suggest that his story has the grandeur that bears a resemblance to Shakespeare’s MacBeth, an observation that many would find unflattering. Of all Netanyahu’s qualities remarked upon, Brooks astoundingly finds that “his caution is the most fascinating.” According to Brooks, Netanyahu deserves to be regarded as cautious because he has refrained from attacking Iran despite threatening to do so with bellicose rhetoric. I would have thought that Netanyahu’s inflammatory threats directed at Iran, especially as combined with covert acts including inserting viruses to disable its nuclear program and assassinating Iranian scientists, would seem reckless enough for most observers. Since Brooks fails to mention the murderous attacks on Gaza, there is no need to reconcile such aggressive behavior with this overall assessment of caution.

 

At the core of liberal Zionism is the indictment of the Palestinian leadership for “never missing an opportunity to miss an opportunity” to recall the self-serving quip of the Israeli diplomat, Abba Eban. Roger Cohen would have us believe that prior to the collapse of the April negotiations the U.S. Government had presented a framework agreement, acceptable to Tel Aviv, that the Palestinian Authority irresponsibly and unreasonably rejected. And not only rejected, but the PA behaved in a manner that was provocative, signed some international agreements as if it already was a state. [“Why Israeli-Palestinian Peace Failed,” Dec. 23, 2014] This spin comes from Netanyahu’s chief negotiator, Tzipi Livni, who is presented by Cohen as the voice of moderation, as the self-proclaimed champion of ‘two states for two peoples.’

Livni who is the leader of a small party called Hatnua, which is joined in coalition with a revamped Labor Party headed by Isaac Herzog, contesting Likud and Netanyahu. Cohen never inquires as to what sort of state she would wish upon the Palestinians, which on the basis of her past, would be thoroughly subjugated to Israeli security demands as well as accommodating the bulk of settlements and settlers while rejecting the rights under international law of Palestinians in relations to refugees.

 

When Livni was asked by Cohen whether she would suspend Israeli settlement expansion so as to get direct negotiations started once more, she indicated that she would “at least outside the major blocs.” Cohen calls her party ‘centrist,’ which is one way of acknowledging how far Israeli politics have drifted to the right in recent years. A reading of the leaked documents of the secret negotiations between the Palestinian Authority and Israel represented by Livni showed how disinterested Israel seemed to be in two states for two peoples at that time of far less extensive settlement encroachment, as well as her overt rejection of the relevance of international law to the diplomatic process. [For a collection of the leaked documents showing Livni’s role see Clayton E. Swisher, ed., Palestine Papers: The End of the Road (2011)]

 

This expresses a second element of liberal Zionism, that despite everything the two state solution is confirmed over and over again as the only path to peace. As such, it should be endlessly activated in accordance with the Oslo formula that keeps the United States in the absurd role of intermediary and continue to insist that any Palestinian reference to rights under international law is an obstacle to peace. After more than 47 years of occupation and over 20 years of submission to the Oslo approach it would seem that it is past time to issue a certificate of futility, and the failure to do so, is for me a sure sign of either bad faith or extreme denial.

 

What is baffling is that those like Friedman and Cohen who surely know better play this game that never even raises the concrete question of how to reverse a settlement process that now includes as many as 600,000 settlers many of whom are militantly opposed to any kind of solution to the conflict that challenges their present situation. Conveniently, also, this liberal advocacy finesses the claims of the four million or so Palestinian refugees, including almost two million that have been confined to miserable refugee camps for decades, some since 1948. How can one possibly imagine a sustainable and just peace emerging from such a blinkered outlook!

 

Liberal Zionists also oppose as irresponsible and unhelpful all efforts to challenge this framework, especially any call for holding Israel to account under international humanitarian law for its excessive violence. Alternative futures based on the equality of the two peoples, such as some kind of living together within a single political community are dismissed out of hand, either because of colliding with Zionist expectations of a Jewish state or because after decades of hatred any effort at social integration would be bound to fail. Intriguingly, my experience of many conversations with both Palestinian refugees and Gazans is far more hopeful about peaceful coexistence within shared political space than are the Israelis despite their prosperity, prowess, and far greater security.

 

In a similar vein, liberal Zionists almost always oppose as counterproductive, activist initiatives taken under the auspice of the BDS Campaign. Their argument is that Israel will never make ‘painful sacrifices’ when put under pressure deemed hostile, and without these, no peace is possible. What these painful sacrifices might be on the Israeli side are never spelled out, but presumably would include disbanding the isolated settlements and maybe the separation wall, both of which were in any event unlawful. The real sacrifice for Israelis would be to give up the completion of the maximal version of the Zionist project, that of so-called Greater Israel that encompasses the entirety of the alleged biblical entitlement to Palestine. For the Palestinians in contrast their sacrifice would necessitate renouncing a series of entitlements conferred by international law, pertaining to settlements, refugees, borders, self-determination, sovereignty. In effect, Israel would sacrifice part of its unlawful dominion, while Palestine would relinquish its lawful claims, and the end result would be one of the inequality of the two peoples, not a recipe for a lasting peace.

 

A final feature of liberal Zionism is to make concessions to the Greater Israel outlook along the following lines—Israel should be allowed to control the unlawfully established settlement blocs; Israeli security concerns should be met, including by stationing military forces within the West Bank for many ears, while any Palestinian security concerns are treated as irrelevant; Palestinian refugees would be denied the right to return to their pre-1967 places of residence; Jerusalem would remain essentially under Israel’s control; no provision would be made to ensure non-discrimination against the 20% Palestine minority living within pre-1967 Israel; no acknowledgement would be made of the past injustices flowing from the 1948 dispossession of hundreds of thousands of Palestinians from their place of residence and the destruction of hundreds of Palestinian villages, the catastrophe that befell the Palestinian people, the nakba, nor the recognition that the nakba is a process that has continued to afflict Palestinians to this very moment.

 

Despite its claim of reasonableness and practicality, the liberal Zionist approach is an increasingly irrelevant presence on the Israeli political horizon, paralleling the decline of the Labor Party and the peace movement in the country, as well as the ascendancy of the Likud and the politics of the extreme right. The Israeli end game is now overwhelmingly based on unilateralism, either imposing a highly subordinated and circumscribed Palestinian state confined to parts of the West Bank or establishing Greater Israel and giving up any pretense of implementing the formula of two states for two peoples. The fact that liberal Zionism and the diplomacy of the West largely plays along with the discarded scenario of two states for two peoples is nothing more than subservience to a cruel variant of ‘the politics of delusion.’

The denigration of liberal Zionism is not meant to belittle the effort of Jews as Jews to find a just and sustainable solution for both peoples. I strongly support such organizations as Jewish Voices for Peace and Middle East Children’s Alliance, and hail the contributions of Noam Chomsky, Norman Finkelstein, Ilan Pappe, and many others to the struggle for Palestinian empowerment and emancipation. 

 

Fortunately, Palestinian resistance will likely stymie the two variants of the Israeli end game mentioned above, but much suffering is almost certain to ensue before sufficient momentum builds within Israel and throughout the world for living together on the basis of equality and even solidarity, accompanied by the necessary acknowledgement of past injustices via some kind of truth commission mechanism. After such knowledge, anything will be possible!

Looking Back on World War I One Hundred Years Later: Four Mixed Messages

10 Nov

[Prefatory Note: A few days ago I gave a lecture in that was the second annual occasion honoring the memory of a beloved New Zealand peace activist, Dorothy Brown. My host for the occasion was the National Centre of Peace and International Studies, University of Otago, Dunedin, NZ, where two days later I gave another lecture, “Obstacles to Peace in the Middle East.”]

 

 

Looking Back on World War I One Hundred Years Later: Four Mixed Messages

(Dorothy Brown Memorial Lecture, Auckland, New Zealand, November 8, 2014)

 

Identity Politics a Century Later

 

I admit to surprise that a place as distant from Europe as New Zealand would have had such a strong interest in World War I until I looked a bit deeper into its relationship to that war and to the country’s place sense of imperial duty or citizenship at that time. Discovering that more that 100,000 New Zealanders participated in the Great War as either soldiers or nurses in a population of just over a million exhibited the extraordinary bonds prevailing between the people and government of NZ and Great Britain, a monarchy acenter of a global empire that still was widely accepted as the mother country, exercising control over its foreign dominions that were neither fully colonies nor yet completely independent states. Such an appreciation of the bond is further strengthened by the realization that of those New Zealanders who went to war 16,697 died and another 41,317 were wounded resulting in an astounding casualty rate of 58%, which was considerably higher than either Canada or Australia. In view of such losses it is hardly surprising that Auckland built an imposing war memorial museum honoring the memory of those who fought in World War I.

 

New Zealand also participated in World War II in a similar spirit of Commonwealth solidarity despite the formal loosening of the imperial ties as a result of the 1931 Statute of Westminster. It may have been relevant that the Pacific dimension of the war made the prospect of a Japanese victory appear dangerous for the security of New Zealand, and hence posed the kind of direct threat to both New Zealand and Australia that was not present in 1914. This security dimension validated New Zealand’s involvement in World War II from a realist perspective of state interests, reinforcing the psychological identification of the interests of the two countries. I wonder what New Zealand would do if Britain become engaged in a future major war. It raises questions of whether national values, sentimental memories, and current identity has moved away from what might call ‘the settler colonial stage’ to an outlook weighing national interests, which is the more typical approach of sovereign states confronting the momentous choice of assessing its security interests in wartime situations. It is a deep challenge for democratic societies, especially when account that any such an engagement in non-defensive wars is a call upon citizens to risk their life and limb on behalf of the nation, sometimes for might seem to many a remote, and even dubious, political cause. I cannot help but wonder whether New Zealand continues to possess this mentality of unquestioning solidarity and deference that in the past has so automatically linked its national destiny with that of Britain considering differences in national consciousness and threat perceptions, as well as the changed status of war in international law? Or is there a divided consciousness present in the country between conservatives who continue to give great weight to the empire rechristened as ‘the Commonwealth’ years ago and more liberal or progressively minded New Zealanders who think either more nationally or even may be beginning to view themselves as global citizens.

 

It occurs to me as an outsider that a comparison of national identity in 1914 and 2014 must be quite illuminating in relation to such issues of shifts in prevailing national identity as would such a comparison be for my country where the shift from isolationism to globalism has been so dramatic, and in many respects, disastrous. It seems also that the enduring impact of the Cold War has been to move both Australia and New Zealand a bit further from Britain and closer to America, illustrating a sense of increased dependence on American military prowess should New Zealand’s security ever become directly threatened.

 

I think also of the orientation of American foreign policy that continues to give some weight to Anglo-American traditions of solidarity that developed over the course of the last century, but mainly conditions its involvements in war on the basis of self-interested realist calculations of national interest combined with strategic concerns associated with geopolitical ambition. It should be remembered that unlike New Zealand, in the world of 1914, the United States had to overcome its break with Britain in its war of independence as well as its strong traditional stance of noninvolvement in European wars. The U.S. did not enter the war until towards the end of 1917 and then when provoked, in part, by unrestricted German submarine warfare, as well as being disturbed by the ideological consequences of a German victory. Of course, in this cross-Atlantic relationship, it has for decades become Britain that subordinated its normalcy as a state to what became in Britain an unpopular willingness to follow wherever the United States leads, as in the disastrous Iraq War during which the British Prime Minister, Tony Blair, was often derided as ‘Bush’s poodle.’ It is also relevant to recall that back in 2013, the House of Commons refused to back Prime Minister Cameron’s call for air strikes in Syria in response to an alleged major use of chemical weapons by the Assad regime, and just recently has again annoyed Washington by calling on the British Government to recognize Palestinian statehood.

 

I raise these preliminary questions mainly in the spirit of curiosity as to how those living in this country now view their past history in relation to the imperatives national and human security in the present global context. In my visit to the country more 30 years ago, I became involved in the then controversial policy of disallowing American naval vessels suspected of carrying nuclear weapons to make use of NZ ports, and recall that the debate centered on an interplay of benefits and detriments to NZ as a member of ANZUS, the Pacific alliance that was part of an American-led network of alliances, as well as the status under international law and morality of this weaponry of mass destruction. It is worth contemplating whether in this century alliance geopolitics and regional trade and investment relations has gradually come to overwhelm the more ethnically and historically valued multi-state frameworks of the Commonwealth. Now that New Zealand has been recently elected to the UN Security Council, which is itself a notable achievement for a small state in a hotly contested competition, might not the stage be set for a move toward a more cosmopolitan worldview to take hold here in the country? Such a posture would be widely appreciated in other parts of the world, especially if New Zealand began to act as a global voice of conscience that was as concerned with promoting the human interest as it is with protecting its national interest.

 

Learning from the First World War

 

Let me make a confession of sorts. When I was first told that the subject of this talk should be a set of reflections on memories of the First World War I had a mild panic attack, realizing that my historical knowledge of the period was grossly inadequate to fulfill such an assignment. I conveyed my anxiety to the conveners who thankfully took pity, allowing me to consider the legacies of the First World War rather than to reflect on how we now remember these momentous events of a century ago. I found this altered challenge more to my likely. I came to realize that the enduring reverberations of World War I tell us far more about present trials and tribulations in world politics than most of us appreciate. I was struck in this regard by a passage in Hannah Arendt’s great book The Origins of Totalitarianism: “The days before and the days after the first World War are separated not like the end of an old and beginning of a new period, but like the day before and the day after an explosion. Yet this figure of speech is as inaccurate as are all others, because the quiet which settles down after a catastrophe has never come to pass. The first explosion set off a chain reaction in which we have been caught ever since and which nobody seems able to stop. The first World War exploded the European comity of nations beyond repair, something which no other war had ever done.” [267] This is an extraordinary statement that seems an exaggeration when we first take account of its grandiose claims, but as I will try to show, this assessment remains essentially accurate more than fifty years after Arendt’s book was published. For most of us the impacts of World War I are still grossly under-appreciated. So much has changed in the world that such a a distant war is mainly regarded as one more historical occasion buried in the realities of its time. In my view such a perception should be corrected. As I will argue, for instance, the terrifying turmoil now going on in the Middle East can be traced back to some fundamentally wrong decisions made in the peace diplomacy that followed the war, and cannot be properly understood or addressed without appreciating its World War I roots.

 

There is one misleading dimension of Arendt’s words, the implied Euro-centric character of world order as an enduring reality. In important respects, Europe since losing her colonies after World War II has become marginalized as a major participant in shaping world history. This assertion is not meant to deny that Europe was clearly responsible for setting in motion the events that shook the foundations that existed a hundred years ago, and then and now pose obstacles in the search for peace, justice, and even stability. Such global developments as the world hegemonic role of the United States, the rise of China, neoliberal globalization, the emergence of the BRICS makes any projection of a Euro-centric world as simplistic and not very relevant in 2014. Despite this it remains crucially relevant to grasp even if belatedly, the 1914 reverberations that persist. Achieving a better understanding of these reverberations may help to make our world a bit more secure, more just, and less prone to violence.

 

In this spirit, I have chosen four sets of developments that owe their origins and unfolding to the disruptive impacts of World War I. In part, these developments arose because of various efforts to vindicate the immense suffering and sense of loss resulting from the war. Both idealists and realists strained to make the peoples of Europe and their allies feel that the sacrifices made in the war would be justified by the gains associated with the peace. For some this involved enjoying the spoils of victory as measured mainly be extending the colonial reach. For others, a pattern also present following the Second World War, but revealingly not after the Cold War, to build a future world order that would discourage, if not prevent, the recurrence of major wars in the future.

 

Political Extremism. First of all, was the recognition that World War I and its aftermath had profoundly dislocating effects on societal coherence and political authority throughout Europe. The war is widely believe to be responsible for unleashing polarizing social forces dedicated to overturning the established order, pointing in the opposite political directions of revolutionary change from below and totalitarian rule from above. These strong political demands exhibited the extreme and complex alienation of contending social classes in several of the countries experiencing the traumas of war. What eventuated were a lethal mixture of domestic and international ideological orientations associated with a variety of fascist and communist political movements, most dramatically producing both the Russian Revolution and the rise in Germany of National Socialism. The messianic militarism of fascism (and Japanese imperialism) produced confrontations with the liberal democracies and with Soviet communism that reached a climax with the outbreak of World War II. This rise of extremisms created as its dialectical legacy a political resolve by the victors, aside from the Soviet Union, to do their best to avoid embittering the defeated nations. The Western allies went further by making a strong effort to restore these devastated countries to economic and political normalcy as soon as possible. In this regard the occupations of Germany and Japan, absorbing the lessons associated with some of the mistakes made in the aftermath of World War I exerted their influence in such a way as to nurture political moderation and hostility toward extremism in the defeated countries. With sensitivity to the culture of these defeated countries, making such moves as retaining the emperor system in Japan, the enemies of yesterday quickly and willingly became friends and allies in the conflict patterns taking shape after 1945. Such a reversal was prompted by the second phase of the struggle of moderate governments against political extremism, this time taking the form of the long Cold War, whose conduct managed to avoid the curse of a third world war that would likely have been fought with nuclear weapons. With the collapse of Communism and the disintegration of the Communist bloc in Eastern Europe, and the accompanying triumph of Liberalism, there occurred in the West a brief exultant mood of triumphalism captured best by Francis Fukuyama’s striking image of ‘the end of history.’ Such a West-centric Hegelian interpretation of the outcome of the Cold War enjoyed a bit of added plausibility when China’s drive toward modernization under Deng Chau Ping bought this gigantic country into the neoliberal world order, which the Brizilian leader Fernando Henrique Cardozo acknowledged to be ‘the only game in town.” That is, the victory over Communism was understood as facilitating a globalized world economy that was guided by a market-driven ideology that is most commonly identified as ‘neo-liberal.’

 

Leaving aside the anti-Western extremisms that came to the surface in the Islamic Revolution in Iran, a cost of this complacent celebration of Western liberalism was to foster an intolerant attitude toward visionary politics, whether of a radical or utopian variety. The politically influential classes endorsed the belief that only incremental change is constructive and feasible, and that any greater political ambition necessarily plunges society, if not the world, into a descending spiral that inevitably produces terrorism and extremism. This reading of history goes back to the French Revolution as well as forward to an account of the Soviet experience, referencing Nazism along the way. Over-learning this initial lesson of the First World War is very disempowering in the present global setting where it is only ‘a necessary utopianism’ that might meet the challenges of nuclear weapons and climate change.

 

Unlike the rise of extremisms in the aftermath of World War I there was no comparable experience after World II. This undoubtedly partly a reflection of the reality that a large proportion of public in the occupied countries felt that their extremist leaders had brought destruction upon the country by the embrace of morally unacceptable and politically imprudent policies. It is also partly resulted from success of the United States as the prime victor quickly recasting itself in the role of principal protector against the unfinished agenda of defeating expansionist extremism. On the basis of such a feeling the Soviet Union after World War II was quickly seen to be a surviving extremism with values and goals that were antithetical to Western liberal individualism, a reality supposedly confirmed by the Soviet moves to exert permanent control over Eastern Europe. Left European intellectuals themselves later turned against the excesses Stalinism, a collection of essays by prominent personalities, and published under the intriguing title, The God that Failed.

In an important respect, the Cold War can be viewed as the final stage of an ongoing global war of being waged by moderates and capitalists against socialists and extremists, or liberals against totalitarians, that began with the assassination of Archduke Ferdinand in Sarajevo and ended with the breaking of the Berlin Wall.

 

 

Flawed Accountability. A second somewhat ambiguous reverberation from First World War were ideas about imposing some kind of accountability for violations of international law by those acting in the name of the state. The seemingly progressive idea was that there needed to be a law that overrode sovereign claims of being only accountable internally, especially in the context of aggressive war.

 

The impulse was confused and controversial from the outset as the insistence on accountability became intertwined with the eagerness of the winner to demonstrate that it deserve to win. In its initial expression, which seemed dubious given the origins and character of the First World War, was the idea that losers in a major war should be held collectively responsible for causing the damage and suffering and that, correspondingly, the behavior winners should not be scrutinized. The victorious governments should be at liberty to determine the punishment to be imposed. In the Versailles arrangements this took the form of requiring Germany to pay significant reparations to offset the damage its war machine had caused and to accept strict limitations on the form of military capabilities that it would be allowed to develop and possess in the future. Such a punitive peace as embodied in the Versailles Peace Treaty definitely accelerated the German descent into a struggle between extremisms, and created a national mentality of defiance and wounded pride. Such a German reaction seemed understandable as it was difficult to draw a sharp moral line between the military behavior of victors and vanquished other than by reference to the way the conflict was resolved on the battlefield, which seemed quite detached from questions of moral and legal responsibility for the war and its conduct. As a result, Germans felt bitterly betrayed by emergent political order that seemed to reject that principle of comity among sovereign states that Arendt referred, which had in the European setting treated losing states in war as no more morally reprehensible or politically dangerous than the winner.

 

Yet this idea that there was a moral and legal dimension to warfare that must be factored into post-war arrangements survived to live another day. It surfaced in the war crimes trials held in Germany and Japan after the Second World War, most spectacularly in the prosecution of the surviving leaders of the two countries in the much studied Nuremberg and Tokyo trials. The Nuremberg approach was generally vindicated by the consensus view that the Nazi experience was such an unprecedented assault on European values, first by so overtly launching a major aggressive warf and then by the commission of numerous atrocities in its course, especially genocide against Jews and other minorities. The Tokyo trials were far more controversial as the onset of the Pacific theater of warfare was as prompted by the deliberate encirclement and squeezing of the Japanese economy as it was by the surprise attack in 1941 on Pearl Harbor. This moral and political ambiguity is heightened as soon as one takes into consideration the failure to impose any accountability on the victors for the use of atomic bombs on Hiroshima and Nagasaki or for the fire-bombing of Tokyo. The cry of ‘victors’ justice,’ the title of a book by the historian Richard Minear, seemed understandable, if not justifiable. In the German case the American prosecutor, Robert Jackson, tried to soften the one-sided approach toward individual criminal responsibility taken after World War II by declaring a Nuremberg Promise, namely that in all future wars those governments sitting in judgment in relation to the Germans would submit themselves to the same discipline of international criminal law. This Nuremberg Promise was broken by each of the victors, none of whom have ever accepted the application of a procedure of criminal accountability being applied to themselves, and have opted out to the extent possible from the activities of the International Criminal Court. The United States and Europe continue to make a political use of international criminal law by staging prosecutions of their recent enemies, including Slobadan Milosevic, Saddam Hussein, and Muamar Qadaffi, and finance the ICC in its focus upon the criminal wrongdoing of sub-Saharan African leaders while granting de facto impunity to the West.

 

In effect, the idea of criminality associated with war could have taken either of two forms, as an emergent branch of the rule of law that would apply the same standard of accountability and judgment to the victors as to the vanquished or it could accept the double standards of imposing accountability on the defeated and granting impunity to the victor. Robert Frost’s poem, “The Road Not Taken,” expresses such a choice in more personal and universalistic language:

 

“Two roads diverged in a wood, and
I took the one less traveled by,
And that has made all the difference.”

 

 

Unlike the poet, the statesmen of the world have chosen the more traveled road of political realism and geopolitics, which had long been accustomed to the amoral dualism of one law for the strong, another for the weak. This realist was concisely set forth long ago by Thucydides in the Melian Dialogue in his History of the Peloponesian Wars: “The strong do what they will, the weak what they must.” What World War I initiated was a moral/legal translation of this political tendency that liberals viewed as a step forward, conservatives generally regarded as a risky departure from realism, and progressives viewed as an hypocritical and misleading effort to seize the high moral and legal ground. The impulse was renewed after World War II, but individualized by way of war crimes trials thus abandoning the war-provoking practice of World War I that consisted of imposing onerous burdens on a defeated country at the very time when its population was struggling with the urgencies of survival in the ravaged conditions of post-war realities. It is regrettable that this idea of a punitive peace was revived in dealing with Iraq after the Gulf War of 1991 as if the lesson of World War I’s misbegotten breach of comity was irrelevant when dealing with the global South that never had enjoyed the benefits of comity.

Global Institutions. Thirdly, the horrors of warfare that caused millions of casualties and destroyed economies in the period 1914-1918, gave rise to a vibrant peace movement, and to the willingness of the peoples of Europe to look with favor toward a fundamental revision of world order based on the institutionalization of peace and security at a global level. The establishment of the League of Nations was the result, but hampered from the outset by the sovereignty oriented statesmen who dominated diplomacy, as well as by an American leadership that was ambivalent about giving up America’s traditional non-involvement in European conflicts and its related posture of isolationism based on the insulating presence of oceans on either coast. Of course, there was more to the American position as it combined this non-interference in Europe with a determination to resist European interference anywhere in the Western Hemisphere. The enunciation of the Monroe Doctrine in 1823 gave tangible expression to this two-sided American diplomacy.

 

After every major war in Europe there have been attempts to learn from the experience and avoid the recurrence of such a traumatizing and dislocating experience that had given rise to such massive suffering. This tendency was evident in every major post-war instance of diplomacy since the birth of the modern European state system in 1648. In part this was a reaction to the tendency of political leaders to fail to anticipate the true costs and harmful societal impacts of war, whatever its outcome, inducing to a concerted effort to insulate Europe from future mistakes of the same kind.

 

The Thirty Years War led to the Westphalian framework based on territorial sovereignty in 1648, later reinforced by legally acknowledging the right of the sovereign to determine the religion of the state. The Napoleonic Wars led to the Concert of Europe in 1815, which attempted to create collective mechanisms for resolving disputes by diplomatic negotiation rather than war and through a consensus as to the nature of legitimate government that would act collectively against the sort of revolutionary challenges posed by Napoleon. World War I produced the League of Nations and World II the UN, the Bretton Woods institutions, and encouraged the establishment of collective mechanism for mutual cooperation that evolved into the European Union.

 

In contrast, the Cold War produced nothing at all, perhaps demonstrating that since it was never really a war, there were no mistakes to be overcome. In retrospect this seems like a tragic failure to use the atmosphere of relief and liberation to achieve nuclear disarmament and a stronger UN. What was revealed, instead, was a geopolitical complacency and a preoccupation with taking advantage of the globalization of the world economy in line with neoliberal capitalism. The political leadership in the United States lacked imagination and the public lacked motivation. There may be a species destiny contained in this regressive learning curve. At present, the world system seems incapable of meeting any formidable global challenges to human wellbeing except during that brief window of opportunity that is opened in the immediate aftermath of a major hot war. We notice that despite widespread scientific and public agreement on the dangers posed by nuclear weaponry and climate change, the problem-solving mechanisms available in the world have not been responsive, and show no signs of being able to surmount the peaceful obstacles posed by vested bureaucratic and private sector interests. We must ask ourselves whether it would require yet another war of global proportions to shake off this disabling lethargy that is literally endangering the very survival of the human species. And given the weaponry with which such a war would likely be fought, and its dire environmental impact, whether the human race confronts the unprecedented dilemma of being unable to act effectively without a war and likely being too devastated if such a war should occur to act reconstructively.

 

Returning to our focus on the legacies of World War I it is certainly appropriate to note that for the first time in history the impetus to form a global institutional mechanism with the overriding mission of preventing future wars entered the mainstream, at least rhetorically. The extraordinary suffering, devastation, and societal dislocation of a long war that accomplished very little that could be called positive led to social demands to ensure that less destructive means of achieving international peace and security could be developed. As well, the missionary vision of Woodrow Wilson that called for organizing the peace in durable ways captured the imagination of the European public in ways that helped make the establishment of the League of Nations a realistic project. The concrete implementation of such a vision was obstructed by the thinly disguised colonial ambitions of Britain and France, abetted by the secret machinations of diplomats and also by the Bolshevik Revolution in Russia that threatened the European established order to such an extent that a counter-revolutionary intervention was organized to reverse the outcome. Globalist impulses were also captive to American ambivalence that could not decide whether to abandon the tradition of avoiding entangling alliances, especially centered in Europe, and assert itself internationally as a global leader in peacetime as well as during large wars. The U.S. failure to join the League was certainly a blow to the hopes of those who believed that peace and security could only be preserved in the future by establishing alternatives to balance of power geopolitics, and was a deficiency corrected after World War II, but with the debilitating concession of a veto to the victorious powers who were self-anointed as the peace enforcers, except against each other, which meant that the step forward from the view of participation was nullified by the step backward in relation to political effectiveness.

 

Mark Mazower in his perceptive book Governing the World confirms the view that the birth of the League was “abrupt” and that war served as its “midwife.” [v] For Mazower who does not discuss the prior contributions of post-war statecraft to global reform, poses as the central question for those planning the peace after World War I, how to explain the birth of a new political idea. He considers the critical question to be why the dominance of statist views of world order seemed to give way with so little opposition to the sort of internationalism embodied in the League concept. He wants to know “why, in other words, some of the most powerful states in the world threw their weight behind the construction of a permanent peacetime world security organization and built the League of Nations.” [117] Perhaps, as Mazower doesn’t consider, the embrace of the League project was facilitated by the realization that such a feeble form of institutionalization was nothing more than window dressing that would neither inhibit colonialist diplomacy or confuse realist political leaders.

 

In the background were ideological issues that pointed in both directions. The League as established was at once perceived as a threat to sovereignty oriented nationalists and as too weak to carry out its mission of preserving the peace if a strong state emerged with a serious set of grievances about the status quo together with the means and will to mount a challenge by force of arms. As we all know both Germany and Italy in Europe and Japan in Asia did emerge with a revisionist agenda that could only be met by countervailing power, which underscored what was already known, that the League was useless when it came to containing aggressor states. The real test was posed by Fascism, especially as it manifested itself in the Nazi rise to power in Germany.

 

 

 

Destabilizing the Middle East. Fourthly, and least commonly acknowledged, was the degree to which the ‘peace’ concluded after the First World War contributed over the decades to ‘war’ in the Middle East region. This outcome resulted from the unwillingness of the European colonial powers to abide by their promise made during the war of independence for Arab peoples in exchange for their support of the Allied war effort by rising up and fighting against the Ottoman Empire. Instead, Britain and France through secret diplomacy, highlighted by the Sykes-Picot Agreement of 1916, plotted behind the scenes to achieve a distribution of Ottoman lands between themselves without regard either to their earlier commitment or to the dynamics of self-determination. This diplomatic process was responsible for the emergence of a series of particularly artificial states with borders drawn to reflect colonial ambitions relating to the location of oil and other strategic interests such as protecting navigational security in the Suez Canal. This approach to the Middle East has been responsible for successive waves of instability and suppression of minorities, as well as perceptions of illegitimacy by those affected and intense conflict.

Among the most anguishing legacies of the First World War is the current acute turmoil that afflicts almost the entire Middle East. Of course there are many intervening developments during the past hundred years that are relevant to explain the specific patterns of conflict that are present in the region. Nevertheless, as the perceptive regional expert, Mohammed Ayoob argues, it is the colonialist aftermath of the collapse of the Ottoman Empire that constitutes “the primary factor” in accounting for “the mayhem and anarchy” in the region. [158] Ayoob is critical of those who are content to attribute these regional torments to Islamic radicalism and sectarian tensions between Sunni and Shi’ia believers. He believes that this substitution of proximate for the more illuminating root causes leads to a faulty understanding of the underlying situation and what must be done about it. An earlier line of explanation associated with Bernard Lewis attributed the problems of the region to Islamic cultural resistance to a transition to Western style modernity. Of course, the importance of Middle Eastern oil to keep the world stable is a central part of the regional drama, and linked closely to such other concerns as American interventions in the region, preoccupation with the spread of radical Islam, the avoidance of the spread of nuclear weapons, and the destabilizing Israeli claims to uphold its security by periodic aggression and disproportionate reliance on force. In one way or another each of these issues can be traced back to the difficulties associated with the collapse of Ottoman rule as the occasion for the arrangements put in place after World War I.

 

The diplomacy of World War I was rather confusing and contradictory when it came to the Middle East. As mentioned, particularly Britain encouraged Arab leaders to revolt against Ottoman rule, promising postwar independence in the form of a regional Arab state. At the same time Woodrow Wilson was advocating a quite different approach, proposing the establishment of a series of successor states to the Ottoman control of the region based on the principle of nationality as the means to realize his overriding goal, the self-determination of peoples. In opposition to this the British and French were secretly plotting to divide up the region without regard to such considerations, but rather to satisfy their overriding interest in gaining control over territories that contained oil and satisfied certain strategic interests. The British were preoccupied with safeguarding the Suez Canal, staking claims for countries nearby including Jordan, Palestine, while the French wanted to be near the old Silk road to facilitate trade with Asia by overland routes, and were eager to create a distinct Christian state that would satisfy Maronite aspirations. However, there were also some relevant anti-colonial influences at work in the Versailles peace negotiations associated with American influence, yielding a compromise taking the form of the mandates system. This upheld the British/French ideas about post-Ottoman territorial delimitations, but instead of giving colonial title, these two governments were given unrestricted administrative control over these territories as ‘a sacred trust of civilization’ that included a vague commitment to grant independence at a future time. Without the impact of World War II on the colonial system it is doubtful that political independence would have been achieved without greater struggles against British and French tutelary administrative regimes throughout the region.

 

As Ayoob persuasively points out, the legacy of these arrangements was the creation of a series of artificial states that experienced great difficulty in governing effectively. Ayoob identifies what followed as ‘state failures’ that have generated the extremism and sectarianism that continues to afflict the region, not the reverse. It seems correct that when sovereign states are not natural political communities severe inner tension and instability inevitably results. The denial to the Kurds of a state of their own has created very disruptive issues of minority and self-determination challenges to state legitimacy that constitute one dimension of persisting problems in Iraq, Syria, with spillovers to Turkey and Iran. What has recently become evident is the capacity of non-state actors to ‘outgovern’ the formal governance institutions of the state. This extraordinary development has been recently acknowledged in relation to the extensive areas under the undeniably harsh and brutal control of the IS, and also in Afghanistan where from the perspective of human security of the people, the Taliban is doing a better job of meeting the daily health and security needs in Afghanistan than is the heavily subsidized government in Kabul. [See “Pakistan’s parallel justice system proves Taliban are ‘out-governing’ the state,”] This radical form of state failure has given well-organized and dedicated Islamic civil society actors a political base that includes a reputation for getting things done without corruption, and contrasts with governmental practice that is perceived as being both corrupt and incompetent.

The other source of fundamental difficulty in the region is associated with the Israel-Palestine conflict that also emanated from a colonial gesture during the final stages of World War I. In 1917 Lord Balfour made an initially secret commitment to the Zionist Movement that Britain would look with favor at the establishment of a Jewish homeland in historic Palestine. The population of Palestine was never consulted, and much conflict has resulted with no present end in sight. Understandably many Arab scholars are outraged by this colonialist intrusion on the political development of the Middle East. Walid Khalidi, the noted Arabist, recently called the Balfour Declaration “..the single most destructive document in the twentieth century.” This may be hyperbole, but there is no doubt that the unresolved Palestinian quest for self-determination has caused frequent wars, as well as inflicted on the Palestinian people both the catastrophic dispossession of 1948, the nakba, and a brutal occupation that has continued since 1967, increasingly assuming an apartheid structure of military administration. The United States has assumed the role earlier played by Britain in protecting Israel’s interests in what has been a hostile environment regardless of Israel’s frequent violation of international law and elemental morality, above all, its unwillingness to cooperate in reaching agreement with Palestinians based on equality of rights as the foundation for a sustainable and just peace.

 

Conclusion

 For several reasons it seems correct to view World War I as the biggest rupture in global history since the French Revolution, and more revolutionary in its impact than subsequent major wars. Perhaps, most notable is the degree to which World War I exhibited interconnections between mobilizing the resources and enthusiasm of national societies for engaging in war and the decline of the capacity to rely on diplomatic compromises to bring wars to an end in a manner that minimizes the suffering experienced and the dislocation caused. As Raymond Aron expresses this idea, “..it was peculiarly difficult to end by negotiation in the traditional way a war that had become a war of peoples and of ideas.” [The Century of Total War, 27] The public had to believe in the war, which fed the claims that the issues in contention were of fundamental importance and that the enemy was pursuing evil ends, and this is what Arendt meant by the end of European comity.

 In line with this observation are the elaborate commentary of Gabriel Kolko set forth in his important study, Century of War. Kolko insisted that the World War I initiated a process of war making in which the leaders and citizens anticipate and plan for a short war, and instead experience a long and far more destructive, alienating, and costly war that brings vast human suffering, creating serious societal dislocations. Kolko writes of both the specific deforming impacts of the conflict and its patterning of the successive major wars that have subsequently taken. He writes, “..it is so desperately imperative that we escape from the present uneven yet steady descent along the path of war on which the mankind has been locked since 1914.” [453] He indicts political leaders for their “ignorance that has cost humanity a price in suffering beyond

 

Any measure.” [454] In effect, World War I initiated a modern tendency for what Kolko calls “the consummate irresponsibility” of leaders who are “playing with the lives of anonymous people..who are sent off to die” without any appreciation of or concern about the societal costs that will be incurred.

We in America remember the anger aroused caused by the Bush presidency promising that the Iraq War would be a cakewalk in which the American occupiers would be welcomed as liberators. It was an arduous decade long campaign that ended in failure and there was no welcome in Iraq despite widespread opposition in the country to the autocratic regime of Saddam Hussein.

 

In effect, the kind of war making that occurred in World War I and took new technological forms in World War II is a virus that continues to lie dormant in the body politic. It is exhibited by the refusal to seek the abolition of nuclear weaponry or the globalizing of the rule of law, and by the insistence that our side in every war is essentially innocent and good and our adversary is evil, even barbaric.

 

The current global war on terror is inscribed in public consciousness in accordance with the kind of moralizing self-assurance that guided the peacemakers at Versailles almost a century ago. Unfortunately, the imperative lesson involving the dysfunctionality of war has not yet been learned by either the leaders of the most important sovereign states or their publics. The only useful thing that has been learned about war is the importance of exercising caution in the nuclear age whenever a crisis in international relations occurs. We must pause and ask ourselves what seems to be a decisive moral and political question, which may also be an ultimate survival question: ‘is caution enough?’ And if not, ‘What must be done?’ We certainly do not want people coming together one hundred years hence to lament the persistence of war as the defining feature of world history.

 

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