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Required Reading: Noura Erakat on Palestine and Law

17 Jul

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

25 Jun

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

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

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

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

 

 

 

AN AMERICAN ATTACK ON IRAN WOULD BE

AN UNMITIGATED DISASTER FOR THE US, IRAN AND THE WORLD

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Signed (partial list, as of June 21),

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

ACTING BEYOND THE STATE: TOWARD A COSMOPOLITAN AWAKENING?

20 Jun

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

 

ACTING BEYOND THE STATE: TOWARD A COSMOPOLITAN AWAKENING?

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

 

]

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

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

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

2 Jun

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

 

 

 

 

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

1 Aug

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

 

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

 

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

 

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

 

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

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

 

 

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

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

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

The Great March of Return: The Gaza Sniper Massacre  

10 Jun

The Great March of Return: The Gaza Sniper Massacre

 

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

NIKKI HALEY, U.S. Ambassador to the UN

 

 

 

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

 

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

 

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

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

 

 

 

 

 

 

(1) The Free Gaza Movement

 

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

 

Quds News Network·

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

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

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

 

 

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

 

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

 

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

 

 

 

Greta Berlin, Co-Founder, the Free Gaza movement

 

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(2) Jonathan COOK ‘LETTER FROM NAZARETH”

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

27 May 2018

The National – 27 May 2018

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

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

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

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

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

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

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

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

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

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

But public self-immolation is associated with protest.

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

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

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

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

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

But Harb undoubtedly had a larger audience in mind too.

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

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

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

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

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

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

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

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

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

None of this can have passed Harb by.

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

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

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

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

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

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

 

 

 

(3) The Israel Massacre Forces

 

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

 

Gideon Levy

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

 

 

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

 

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

 

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

 

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

 

 

 

 

 

 

 

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

 

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

 

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

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

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

 

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

 

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

 

By Jim KavanaghOn June 4, 2018

 

 

Photo by Jordi Bernabeu Farrús | CC BY 2.0

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

 

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

 

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

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

 

Dis/Ingenuity

 

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

 

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

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

 

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

 

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

 

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

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

 

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

 

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

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

 

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

 

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

 

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

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

 

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

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

 

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

 

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

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

 

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

 

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

 

Does the vulgarity of it shock you?

 

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

This is a “human shield”:

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

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

 

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

 

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

 

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

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

–But for what purpose?”

Call it publicity.

Publicity?

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

More Zionist tough love.

 

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

 

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

 

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

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

 

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

 

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

 

What’s Right Is Wrong

 

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

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

 

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

 

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

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

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

 

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

 

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

 

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

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

 

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

 

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

 

The Nakba Is Now

 

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

 

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

 

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

 

 

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

 

 

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

 

 

Stage Left

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

 

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

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

 

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

 

 

 

Mondoweiss7 June 2018 by Jonathan Ofir –

 

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

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

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Attacking Syria

18 Apr

Attacking Syria

 

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

 

 

Preliminary Reflections

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

Doubting the Facts

 

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

 

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

 

 

Remnants of Colonialism

 

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

 

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

 

 

 

Violating International Law, Undermining the UN

 

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

 

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

 

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

 

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

 

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

 

 

The Charter Framework is Not Obsolete

 

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

 

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

 

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

 

 

Fudging Constitutional Authorization

 

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

 

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

 

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

 

 

Where Does This Leave Us?

 

There are several levels of response:

 

–with respect to Syria, nothing has changed.

 

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

 

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

 

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