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Stalking Netanyahu’s Victory: Palestine and Iran

21 Mar

 

 

(Prefatory Note: This is a much modified version of an article published online by Al Jazeera America on March 19, 2015; its ambition is to grasp the dual significance of the Likud victory for strengthening the role of civil society activism in the Palestinian struggle and with respect to the ongoing diplomacy associated with Iran nuclear program.)

 

 For Palestine:

My immediate reaction to the outcome of the Israeli elections is that for Palestinian solidarity purposes, it was desirable for Netanyahu to receive this electoral mandate. It exhibits as clearly as possible that the long discredited Oslo ‘peace process’ is truly discredited. But don’t believe that the call for bilateral talks will not be revived within the ranks of the so-called liberal Zionists. Already Israeli commentators, including Likud operatives, are saying that Israel would welcome a resumption of direct negotiations. In the words of the Likud Deputy Foreign Minister, Tzachi Hanegbi, “[w]e would be delighted to renew the negotiations..[i]t is to the benefit of both parties.” Really! Why wouldn’t they? How have the Palestinians benefitted during the past 22 years from these negotiations during which the Israel has been relentless in accomplishing the creeping annexation of the West Bank and the ethnic cleansing of East Jerusalem past the point of return? As Jeff Halper points out the only question about the future is whether Israel’s state will be secular and Democratic or Zionist with an apartheid apparatus of discrimination and exploitation.

 

And as for the embarrassment of Netanyahu’s pledge never to establish a Palestinian state in the closing days of his campaign, it can be put aside as we all know that Bibi is ‘a pragmatist’ who knows the difference between campaigning and governing. As a prominent Israeli think tank personality, Grin Grinstein, put it, Netanyahu now that he is securely elected can shift attention to his legacy, and will want to avoid Israel’s international isolation: “I would not rule out his going back to the two-state solution.” Neither would I, at least rhetorically and opportunistically. It should have long been obvious that there has never been an Israeli willingness to endorse a viable Palestinian state based on the equality of the two peoples, the sina qua non of a sustainable peace based on implementing the two-state consensus. The only way to understand this long afterlife of the two-state solution is that provided governments and decent people to hold onto a belief that a just solution to the conflict remained within reached, and that its attainment depended on ‘painful concessions’ made by both sides. Such a contrived myopia enabled liberal Zionists to pretend that Israel could remain democratic and Zionist, while not permanently dispossessing and subjugating the Palestinian people.

 

The cynically obvious conclusion is that when Netanyahu craves votes from the ultra-right in Israel he reassures Israelis that there will never be a Palestinian state so long as he remains the leader. When the election season is finished, then it is time to reassure Washington and Europe that he remains as committed as ever to the two-state mantra, with the unspoken clause, “so long as it remains a mantra.” What should disturb us most is the willingness of so many in the United States and elsewhere to embrace such tactics that consign the Palestinian people to the cruelty of their various circumstances (under occupation, in refugee camps, in exile, subject to blockade). Whether this last phase of disclosure associated with Netanyahu successful campaign strategy will offend the Obama presidency sufficiently to alter American foreign policy in the Middle East is uncertain at this point.

 

If the Zionist Union coalition of Isaac Herzog and Tzipi Livni had been elected on March 17th, liberal Zionists would undoubtedly have had a field day, proclaiming a new dawn, restoring good will and inter-governmental harmony in relations between Washington and Tel Aviv. Even now a leading liberal Zionist, the NY Times columnist, Roger Cohen, throws his support behind the idea of a ‘national unity government’ that would supposedly rein in the extremist tendencies of Netanyahu. It is also reported that Reuven Rivlin, Israel’s president and Likud member who is an avowed Zionist maximalist (that is, one Jewish state in all of historic Palestine) and unilateralist (‘peace’ by Israeli fiat without the bother of negotiations and diplomacy) is seeking to form such a unity government on the basis of the election results. Despite these views, Rivlin, unlike Netanyahu, is an advocate of human rights and equality for Palestinians living within whatever boundaries Israel achieves, a position almost as incapable of realization as the old delusionary embrace of the Oslo framework as something other than a device to allow Israel to consolidate its hold over the West Bank and East Jerusalem.

 

Principled liberal Zionists, such as Rabbi Michael Lerner and even more the admirable Haaretz columnist Gideon Levy, view Netanyahu’s reelection as an unconditional disaster both for what it means for Israel’s governing policies and even more so for what it tells us about the prevailing political culture of racism and militarism within Israel. In contrast, an ideological liberal Zionist of the Thomas Friedman variety laments the emergent picture is such a way as to distribute an equal portion of blame to the Palestinians, both Hamas and the Palestinian Authority. Ponder these slanted words: “It would be wrong to put all of this [blame] on Netanyahu. The insane, worthless war that Hamas started last summer that brought rockets to the edge of Israel’s main international airport and the Palestinians’ spurning of two-state offers of Israeli prime minister (Ehud Barak and Edud Olmert) built Netanyahu’s base as much as he did.” [NY Times, March 18, 2015] This pattern of distributing responsibility for the continuing oppression of the Palestinian people and the denial of their most fundamental rights to both sides equally is the most authentic signature of ideological liberal Zionists, purporting to be objective and balanced in assessing responsibilities while effectively supporting Israeli expansionism. Any reasonable assessment of the massive Protective Edge attack launched by Israel last July would acknowledge the Netanyahu provocations that started with the manipulation of the June kidnapping incident resulting in the murder of three young West Bank settlers and the anti-Hamas rampage that followed, as part of the timeline, not to mention Israel’s furious reaction to the unity agreement reached between the Palestinian Authority and Hamas some weeks earlier. As well, for Friedman to present the proposals of Barak and Olmert as offering the Palestinians equality and a viable state coupled with a recognition of the rights of Palestinian refugees, is to serve as a reckless purveyor of Israeli propaganda.

 

It is on the basis of repudiating such reasoning that the most credible advocates of Palestinian justice, otherwise as far apart as Ali Abunimah and Gilad Atzmon, agree that it is better that Netanyahu and the Likud won the election rather than their supposedly centrist opponents. These more upbeat commentaries on Netanyahu’s triumph believe that this heightened transparency relating to Israel’s true intentions will lead to a long overdue burial of Oslo-generated delusions about a diplomatic settlement of the conflict and that this will, in turn, awaken more of Western public opinion to the true nature of Israeli ambitions, and strengthen the BDS approach to peace with justice. This development should help people throughout the world understand that a positive outcome for the Palestinian national movement is utterly dependent on struggle and that diplomacy has nothing to offer at this time, nor does the revival of armed struggle.

 

From these perspectives, a positive future is dependent upon Palestinians waging and winning a Legitimacy War directed at realizing Palestinian rights under international law. This is the central argument of my recently published Palestine: The Legitimacy of Hope (Just World Books, 2015); see also to the same effect, Ali Abunimah, The Battle for Justice in Palestine (Haymarket Books, 2014). This reliance on civil society activism implies growing support in the court of public opinion being reinforced by a worldwide militant nonviolent solidarity movement that challenges Israel by way of such tactics as the BDS Campaign and Freedom Flotillas. It should be clear that such a movement from below is not seeking the delegitimation of Israel as such, but of its policies and practices that are precluding a just peace, which as of now presuppose the formation of a single democratic secular state with equal economic, political, social, and cultural rights for all residents regardless of ethnicity and religious identity.

 

On Iran Diplomacy:

 Unfortunately, in my view, this is not the whole story of the Israeli elections. The Netanyahu victory cannot be assessed exclusively through a Palestinian optic. The dangerous implications for broader regional issues of a Netanyahu controlled foreign security policy cannot be overlooked, nor the grave danger of coordination between the militarist approach to the Islamic world of the Likud Party in Israel and the Republican Party in the United States, or less dramatically, of a restored cooperative regional strategic partnership between the two countries. These concerns most obviously pertain to the prospects for a stable termination of the dangerous encounter with Iran. The Netanyahu/Republican approach is likely to have at least two harmful effects: shifting the internal Iranian balance toward a harder line and creating pressures in Iran and elsewhere in the Middle East to move closer to the acquisition of nuclear weaponry, which will likely cause a regional arms race, including the proliferation or near proliferation of nuclear weapons and/or be the proximate cause of one more devastating war within the region, which regardless of outcome is almost certain to strengthen ISIS and other extremist non-state actors throughout the Middle East.

 

Of course, the Netanyahu Republicans see this core conflict differently, more in the spirit of poker (than chess), supposing that raising the stakes in the game still higher will prompt Iran to fold. This does not seem plausible. If Iran’s efforts to accommodate the West (including Israel) by accepting an unprecedented level of regulation and foregoing a nuclear option despite Israel’s arsenal and threatening posture, would make additional constraints on Tehran depend on the willingness of a more hard line Iranian leadership to give way further than its moderate predecessors.

 

From this vantage point, the Lerner view of the Netanyahu victory as a major disaster for Israel and the world seems the most sensible interpretation, even if never fully consummated by the transformation of bluffs into policies, and not nearly as threatening as it will become if a Republican wins the presidential election in 2016. Even if Hilary Clinton rises to the occasion and is elected the next American president I would not invest much hopes that she will challenge the Netanyahu approach toward Iran except possibly in matters of style and at the margins. Even supposing, as now seems unlikely, that Rivlin convinces Likud to go along with his preference for a unity government it is almost certain to be dominated, especially in relation to security policy, by Netanyahu. Beyond this, even as Netanyahu shows his readiness to rehabilitate his never credible endorsement of a two-state solution for Palestine, confident that it will lead no further than in has over the decades, he is almost certainly not going to budge on Iran.

 

Why? It is entirely possible that Netanyahu has swallowed his own propaganda, and honestly believes that Iran poses a real threat to Israel’s security, and possibly survival, rather than seeing the calculus of fear the other way around. In actuality, it is Iran that is threatened, Israel that poses the existential threat. Beyond this, the Iran card has proved exceedingly helpful to Netanyahu, allowing him both to play on Israeli fears to build support at home and to divert international attention from Israel’s refusal to act reasonably and lawfully with respect to Palestine. In light of this combination of adverse circumstances, I am not sure what I would advise the Iranian government to do at this point other than to bide its time. If Netanyahu had been soundly defeated, then it would have made sense to do everything possible to reach an agreement while Obama is still in office. But now to invite a repudiation of whatever is agreed upon is to choose what would likely turn out to be the worst alternative available.

 

For these reasons, as helpful as Netanyahu’s electoral victory seems from the viewpoint of building a stronger Palestinian national movement, this political result in Israel is a definite setback from the perspective of resolving the conflict with Iran. Is there any way to separate these two concerns, taking advantage of Netanyahu’s victory in the Palestinian context while seeking at the same time to mobilize a movement favoring denuclearization of the Middle East as a vital ingredient of a peaceful future for the Middle East. This seems to be the challenge facing civil society activism that seeks justice for the Palestinians, peace for both peoples, and an end to fear-mongering and saber-rattling in relation to Iran.

 

Netanyahu: The Day After (Revised)

4 Mar

Netanyahu: The Day After

 

My reaction to Netanyahu’s theatrical performance yesterday in Congress led me to recall that the deepest thinkers turned against democracy in ancient Greece because of the susceptibility of the Athenian citizenry to demagogic oratory from opportunistic politicians. Plato, Aristotle, Thucydides all became sensitive to the degree to which the rhetoric of demagogues contributed to the decline, and eventual downfall, of ancient Athens. They did this by convincing Athens to embark on superfluous and self-destructive war making.  Yet even in the worst last days of Athens the demagogues who performed so destructively were at least homegrown! It would have been inconceivable anywhere else than the United States for a controversial foreign leader to be welcomed before the legislative chamber with the express purpose of attacking the ongoing delicate diplomacy of the elected head of state on an issue of utmost importance for the peace and security of the world. It is not merely a matter of the niceties of governmental protocol as to whether the Speaker of the House was delinquent by not coordinating the invitation with the White House so as to agree on a date not so embarrassingly tied to Netanyahu’s bid for reelection on March 17, although even such issues are not trivial. More substantial, however, is what it tells us about this self-destructive embrace of a foreign leader that is unabashedly seeking to derail a critical foreign policy initiative clearly in the interest of the United States, the Middle East, and the world, and even Israel (although presumably not from Netanyahu’s and Likud’s inflamed and inflammatory worldview).

 

Such concerns about the vulnerabilities of democracy also underpinned the republican ethos of James Madison and other architects of the U.S. Constitution that explain why America’s founders opted for a republic rather than a democracy. They sought to rein in ‘the tyranny of the majority’ by a series of measures that willingly sacrificed efficiency for restraint. Such republican sentiments have been trashed in recent years, especially by Republicans who have been ironically particularly willing to give the President essentially unlimited discretion to wage war while foregoing the specifics of authorization and the requirements of a ‘declaration of war.’ In fairness, the Democrats are not without blame for this constitutional complacency, which is suggestive of the insidious effects of compulsive bipartisanship in recent American foreign policy, and no where more insidiously than in relation to Israel and a disastrous militarist approach to peace and security throughout the Middle East.

 

Stripped of its Baroque flourishes, what Netanyahu was telling Congress is that it should be sure to impose such unreasonably strict requirements on any future deal with respect to Iran’s nuclear program as to make any proposed arrangement non-negotiable. As it is, what Obama seems to be demanding of the Iranians is a set of assurances that extend far beyond what has been ever expected of any other non-nuclear state despite several others (including Germany and Japan) edging far closer to the nuclear weapons threshold than Iran. These impositions on Iran’s nuclear program include restrictions on enriching capabilities, removals of existing stockpiles of enriched uranium, and a program of periodic rigorous inspections, scheduled and unannounced.

There already exists an unreflective consensus in the United States that any effort by Iran to cross the nuclear threshold would provides ample justification for launching an aggressive war against Iran. The liberal center of the current American political debate, dominated by soft Zionist perspectives, seems mindless or clueless about why such a posture is so unjustified. It never makes mention of the litany of unlawful military threats made by the United States, and even more so by a nuclear armed Israel over the years, directed at Iran. Most commentators do not acknowledge that threatening a non-defensive military attack is as unlawful as is an actual use of force (the UN Charter uses the language of ‘threat or use of force,’ making no legal distinctions, and does so knowingly in light of the effects of such military threats on peaceful relations and on sovereign rights). This threat diplomacy has been reinforced by an array of provocative and unlawful covert interventions disregarding Iran’s rights as a sovereign state, including the assassination of nuclear scientists in Iran and cyber warfare waged against its nuclear program (in 2010 it became clear that the United States and Israel had jointly developed a computer worm known at Stuxnet that was being used to destroy Iranian centrifuge capabilities at their Natanz facility and maybe elsewhere). Against such a background, Iran’s willingness to negotiate in light of this background, not to mention its willingness to overlook Israel’s retention of a nuclear weapons monopoly in the region, can only be understood in relation to the hardship imposed on the country by the international sanctions regime established largely at the behest of Washington and Tel Aviv, as well as the drastic fall in world price of oil. Additionally, the leadership of the Iranian government seems inclined to establish more normal relations with the United States and the West after decades of confrontation.

 

Against this background, we can begin to appreciate how deeply irresponsible it was for Netanyahu to be given this Congressional platform from which to deliver his fear-mongering and war-provoking speech that quite obviously had one overriding purpose and effect—to defeat, and at least deeply complicate, the already complicated diplomacy of reaching an agreement with Iran acceptable to both sides. Its secondary motives, equally obviously, was to help Netanyahu win electoral approval in Israel and to show the American people that for the sake of Israel, they are far better off in the future with a Republican in the White House.

 

If this gloomy assessment is correct it will almost certainly lead in two main directions: giving the hardliners in Iran the upper hand, who have contended all along that an encounter with the West is inevitable and in accord with Islamic destiny. In effect, a collision course culminating in war would appear increasingly inevitable. And such a collision would have devastating effects in the region, including a substantial risk of a far wider regional war. It would also take a huge step in the direction of making the Huntington prophesy of ‘a clash of civilizations’ a tragic reality.

 

For a global state such as the United States, the pursuit of national interests is often destructive of the interests of others, but given that the alternative here of the adoption of the Netanyahu’s prescriptions, it should be a no brainer that the Obama approach is to be greatly preferred. As argued, even Obama is being far too deferential to Israel’s view of Iran, but at least it is far less destructive of national and human interests than where Netanyahu’s path leads. This is one situation in which ‘leading from behind’ (that is, following Israel) will not do. The world needs a responsible United States Government on the global stage, but this can only happen if the umbilical cord tying the country to Israel is cut, and this will only become feasible when many more of the American people awaken to their own interests and the betrayal of their most cherished values.

 

A final observation—we should not forget while this dark Netanyahu melodrama unfolds, the ordeal of the Palestinian people is completely ignored except by the Palestinians and by activist supporters around the world. Quite relevantly, the supposedly moderate Israeli opposition to Netanyahu has also kept mum about what they might do to bring about a just peace, apparently being either content with the status quo or fearing that any talk of making peace would alienate even anti-Netanyahu voters. In effect, one more cost of the Netanyahu visit is to preclude any mainstream attention being given to the intolerable realities so long endured by Palestinians living under occupation and in refugee camps.

Commentary on Netanyahu’s Visit to the United States

2 Mar

Pondering the Netanyahu Visit

 

It is far too simple to be merely outraged by the arrogant presumptuousness of tomorrow’s speech by the Israeli Prime Minister to a joint session of Congress two weeks prior to national elections in Israel. The Netanyahu visit has encouraged various forms of wishful thinking. Perhaps, the most common one is to suppose that bump in the road of U.S./Israeli relations will lead to a foreign policy reset that is more in accord with American national interests (in the spirit of the Mearsheimer/Walt critique of the baneful influence of the Israeli lobby) or that it signifies the death knell of AIPAC or the permanent alienation of the Democratic Party from its knee jerk support for Israel. In my view, none of these developments will happen in the wake of Netanyahu visit, no matter how obnoxious or divisive or inappropriate as his presence appears to be.

 

First of all, it is important to separate three main dimensions of the Netanyahu speech to Congress: (1) its impact on efforts to reach a diplomatic solution in relation to Iran; (2) its impact on U.S./Israel relations; (3) its effects on the Israeli elections scheduled for March 17th. In my view, the biggest damage is likely to result from (1), with few lasting consequences arising from (2) and (3), although on (3) there is a serious possibility that the speech, contrary to Netanyahu’s apparent intentions, will weaken his reelection prospects because Israelis will worry (needlessly) that there will be permanent negative fallout with respect to the Israel-United States relationship if Netanyahu remains as the head of the Israeli government.

 

There is a fourth dimension, even more speculative than the others, yet probably of significance: (4) the impact of the speech on the rising tide of anti-Semitism. Here, we need to be careful to distinguish allegations of anti-Semitism that are used to stifle criticism of Israel and what I would call genuine anti-Semitism that exhibits and stems from hatred of Jews. It is a sad commentary on the current situation that these two contradictory realities are merged in toxic ways by current Zionist discourses on anti-Semitism, playing on Jewish post-Holocaust fears to shield Israel from justifiable criticism for its abusive behavior toward the Palestinian people and the related neglect of Palestinian fundamental rights.

 

My greatest worry is that the Netanyahu speech will stiffen still further the anti-Obama will of the Republican members of Congress, as abetted by the most diehard Israel supporters among the Democratic lawmakers, as to put a impassable roadblock in the path of mutually beneficial negotiations with Iran that are now at a critical make or break stage. To some extent this roadblock is likely to be somewhat disguised by taking the form of retaining strong sanctions (never justified) until Iran demonstrates its good faith for several years by adhering to all the limitations on its nuclear program, including free access for international monitoring. If diplomacy fails, it will have at least two detrimental effects: first, it will definitely tilt the domestic balance in Iran toward the hardliners, and likely make Iran more repressive internally and more belligerent externally; and secondly, it will increase regional tensions, and if Iran proceeds with its nuclear program, as it most probably would, this would greatly heighten the prospect of a military confrontation.

 

In such a setting, the Netanyahu speech is a dangerous wild card that would never have been played by responsible political actors, although threatening to deliver such a speech might have achieved a comparable harmful result without the backlash. But no one has ever claimed subtlety to be a Netanyahu virtue. Yet let suppose that Netanyahu had given in to pressure to cancel the speech with the side effect of psycho-political gratitude from most sectors of influential opinion in the United States. At that point Netanyahu could have exacted more than a pound or two of flesh from a foolishly grateful and supine Obama White House. We should not forget that in the context of nuclear weapons policy in the Middle East there is a surrealistic element present: Israel mounts its objections to a remote possibility of Iran acquiring nuclear weapons while avoiding any objections to the retention of its own nuclear arsenal, secretly developed. Such a diplomatic asymmetry should not be allowed to pass unnoticed. Indeed, it should not be allowed!

 

When it comes to weakening support among Democrats or Jewish voters, the news of Israel’s demise, to invoke the authority of Mark Twain, is greatly exaggerated. Democrats will explain their absence from the speech as a reaction limited to the Speaker John Boehner irresponsible and partisan rupture of Congressional protocol and to Netanyahu’s untimely presence. At the same time, they will do as other American political leaders, such as John Kerry are doing, seize the occasion to reaffirm their support for the unbreakable nature of the Israel/U.S. partnership. Already we hear strident reassurances to Israel of the underlying American commitment to the security and wellbeing of Israel as understood by the Israeli government. As for Jewish voters and funders, they may possibly be conscience stricken, and even annoyed, for the moment, but it is highly probable that even if Netanyahu wins the election in two weeks their fundamental allegiances will be reaffirmed. I believe this is especially true in the wake of the Charlie Hebdo and Copenhagen synagogue incidents and the regional rise of ISIS.

 

Such a prediction should not be interpreted as a sign that the rise of solidarity with the Palestinian struggle will lose its impressive recent momentum within universities, churches, and labor unions. In this sense, I expect the disconnect between Washington and the rest of the country will widen after the Netanyahu visit—mending fences in Washington while mounting new challenges to Israeli policies and practices throughout civil society. This will be expressed by further victories for divestment initiatives on American campuses and robust growth for the BDS campaign.

 

As far as the Israeli elections are concerned, it seems a black box. What is so notable, as authoritatively observed by Uri Avnery, is the deliberate unwillingness of the centrist anti-Likud coalition led by Isaac Herzog to dwell on the need for ‘peace’ or for a just solution to the conflict. The electoral debate seems to have evoked little interest in Israel, and what disagreement there is, concerns bread and butter issues relating to economic policy. There is one misperception that it is important to counter, the idea that persists, despite all evidence to the contrary, that the outlook for a just peace would greatly improve if Netanyahu and Likud are defeated. There is not a shred of support for this kind of mindless optimism that remains so prevalent in the ranks of liberal Zionism, which hangs on to the vain belief that a two-state solution is still feasible and has any appeal for the Israeli electorate. It should have been clear years ago that a tacit consensus exists in Israel, and is not opposed by Washington, that Oslo diplomacy has reached a dead end. The only requirement for the sake of public opinion is to keep aloft the banner of false consciousness that with tough concessions on both sides a sustainable peace can still be achieved, and only by such means.

 

The issue of anti-Semitism is not likely to disappear. As mentioned, it will continue to be used to blunt and divert criticism of Israel. As well, the continued frustration of Palestinians and other Arab victims of Israeli policies and Islamophobia are likely to commit hate crimes (although to a far lesser extent than to be the target of such crimes). There is no doubt that the deft playing of the anti-Semitic card by Zionist forces has encroached upon academic freedom throughout the world, targeting critics and civil society peace and humanitarian activists. Troublesome as this is, more disturbing is the extent to which such tactics are reinforced by academic administrators and politicians who are either complicit or craven, scared by the disproportionate influence of Zionist advocacy in the media, government, and among the wealthy. For elaboration see the fine March 1, 2015 analysis and commentary by Philip Weiss in Mondoweiss online news service: http://mondoweiss.net/2015/03/netanyahus-speech-israel

 

What we can hope for in the wake of this latest Netanyahu experience is some greater appreciation of what is at stake in the Iranian diplomacy and the realization that the Palestinian ordeal is the defining human rights issue of our time, but don’t look to Washington for this to happen anytime soon. I expect that even Obama will swallow hard, and then do his best to resume relations as if nothing had ever happened, perhaps harboring secret fantasies of a devastating defeat for Netanyahu and his Likud Party on March 17th.

‘Lawfare’ and Liberation

23 Feb

Positive and Negative Forms of ‘Lawfare’

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

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

a more systematic reality.

 

 

 

 

 

 

 

 

When a Terrorist Is Not a Terrorist

20 Feb

 

 

What the Chapel Hill police in North Carolina initially pitched to the world as ‘a parking dispute’ was the deliberate killing of three young and devout Muslim American students by an ideologically driven ‘new atheist’ killer named Craig Stephen Hicks. What the The Economist unhesitatingly calls ‘terrorism in Copenhagen’ involved the attempted shooting of a Danish cartoonist who repeatedly mocks the Prophet and Islamic beliefs as well as the lethal shooting of a Jewish security guard outside a synagogue. A friend understandably poses a serious question on Twitter that might have been dismissed as rhetorical overkill just a few years ago: “Are only Muslims capable of terrorism?”

 

I find it deeply disturbing that while the Chapel Hill tragedy is given marginal media attention except among groups previously worried about Islamophobia and racism, The Economist considers that important principles of Western liberal democracy are at stake apparently only in the European context. In the words of Zanny Minton Beddoes, the new editor of the magazine: “Jacob Mchangama, a lawyer and founder of a human-rights think-tank called Justitia, told me it would be a disaster if his country were to grow faint-hearted in its defense of free speech. ‘There can be no truce in the struggle between secular democracy and extremism,’ he says. Above all, politicians should avoid the trap of saying or implying that violence was really the fault of provocateurs, or that religious insult was to be equated with physical injury. Giving in to that sort of relativism would be letting down those followers of Islam who were brave enough to stand up for free speech, and indulging in a sort of “bigotry of low expectations”, said Mr Mchangama, whose paternal forebears were Muslims from the Comoros Islands. A good point.”

 

I am quite sure that this is not a good point, at least as phrased by Mr. Mchangama. Of course, governments should take action to protect all who are violently threatened, but to refuse to regard Islamophobic messaging as a species of hate speech while so regarding anti-Semitiic slurs or Holocaust denial is to combine two things that are both unacceptable: ignoring the root causes of political extremism and pathological violence; and prohibiting and punishing anti-Semitic utterances as hate speech while treating anti-Islamic or Islamophobic speech as requiring protection from the perspective of ‘freedom of expression.’ Admittedly, these outer bondaries are difficult to draw. Should the views of professional historians that cast doubt on the magnitude of the Holocaust be forbidden? Should critical literary and satiric treatments of Mohammed and the Koran be suppressed for the sake of public order? In the former case we have the experience of the French historian, Robert Faurisson, while in the latter case, that of Salman Rushdie. In my view, the writings of both should be regarded as forms of protected speech, and if a government is unable or unwilling to do this, it compromises its own claims to legitimacy. And what it certainly should not do, is defend Rushdie on freedom of expression grounds while punishing Faurisson on the basis of defamation or collective hate laws.

 

Another trope along a similar trajectory is the push toward acknowledging ‘war’ between the West and Islam, an embrace of the infamous Huntington thesis of ‘the clash of civilizations.’ Roger Cohen, an ethically oriented regular contributor to the opinion page of the New York Times, in a column headlined as “Islam and the West at War” [Feb. 17, 2015] criticizes the Danish prime minister, Helle Thorning-Schmidt, as well as Barack Obama, for describing the adversary as a ‘dark ideology’ and as ‘violent extremists.’ Cohen insists that such terms are euphemisms that evade the central reality of our time, namely, that the West is confronting Islamic movements and governments throughout the world, and even argues that Islam is ‘fair game’ because it “has spawned multifaceted political movements whose goal is power.”

 

The article also observes that young Muslims feel alienated and are drawn toward ISIS and other radical Islamic movements. Cohen asks the central question “Who or what is to blame?” and then suggests that there are two opposing sets of responses. His descriptions are worth quoting in full: “For the first, it is the West that is to blame through its support for Israel (seen as the latest iteration of Western imperialism in the Levant); its wars (Iraq); its brutality (Gunatanamo, Abu Ghraib); its killings of civilians (drones); its oil-driven hypocrisy (a Jihadi-funding Saudi ally).”

 

And then comes the second type of response: “… it is rather the abject failure of the Arab world, its blocked societies where dictators face off against political Islam, its repression, its feeble institutions, its sectarianism precluding the practice of participatory citizenship, its wild conspiracy theories, its inability to provide jobs or hope for its youth, that gives the Islamic state its appeal.”

 

I find several serious flaws in this way of presenting the issue. It should be obvious to any objective commentator that both sets of issues are interwoven, and cannot be separated except for polemical purposes. Furthermore, the failures of the Arab world are presented as detached realities, implying that the Western colonial legacies endured by the Arab world are irrelevant. We need to recall that following World War I, almost one hundred years ago, the European colonial powers effectively insinuated their national ambitions into the diplomatic process that produced the Middle East as we know it today. Such moves undermined Woodrow Wilson’s advocacy of self-determination for the peoples comprising the collapsed Ottoman Empire as well as the promises of a unified country made to enlist Arab support for the war against Germany and the Ottomans.

 

These historical antecedents certainly contributed to the authoritarianism of the region as the only basis for sustaining a coherent order in the artificial political communities with which the region experienced the transition to political independence. And the sectarianism that Cohen laments was clearly inflamed by American occupation policy in Iraq, as well as providing the most palatable way for Saudi Arabia to justify its hostility to Iran, deflecting attention from corruption and gender cruelty of its dynastic rule.

 

Overlooking this legacy of colonialism also ignores the effects of the Balfour Declaration, which gave the imperial blessings of British Foreign Office to the Zionist project for Jewish homeland in historic Palestine that were later endorsed by the League of Nation and the UN. It is debatable as to how much of the turmoil and violence in the region is attributable to the open wounds caused by the dispossession and occupation of the Palesinian people, but it is certainly part of the sad regional story that has unfolded in the last several decades.

 

 

Not surprisingly, Cohen finds the second series of explanations “more persuasive” and especially so in light of “the failure of the Arab Spring,” which he believe is partly a consequence of Obama’s refusal to do more to promote and sustain democratic outcomes in the Middle East by way of intervention. Somewhat mysteriously he blames the Syrian tragedy on American ‘nonintervention’ without bothering to consider the prolonged national disasters that have followed from such interventions as the sustained ones in Iraq and Afghanistan, or the more limited one under NATO auspices in Libya. In each instance the aftermath of intervention was not democracy, or even stability, but chaos, strife, and a worsening of human security.

 

Cohen never ventures to suggest that in light of the colonial legacies in the region, abetted by the oil lust of the West, the least bad arrangement at this point that can be fashioned is a less corrupt and more responsible authoritarianism. As deficient as Saddam Hussein and Muamar Qaddafi were from the perspective of human rights and democracy, they did maintain order within their borders and their countries were rated rather highly by the Human Development Indicators (HDI) of the UNDP. If the United States is to be blamed for its diplomacy during the recent past, it would seem much more convincing to hold the Bush Administration responsible for the downward spiral of politics in the region than to point a critical finger at Obama. It was after all during the Bush presidency that an American interventionary resolve was linked to and justified as ‘democracy promotion.’ If we focus on the alienation of Arab youth, it would seem to be much more the result of these military and political interventions than a consequence of the Obama reluctance to engage the United States in yet another war with a Muslim country. Indeed, Obama can be faulted for being too quick to authorize drone and other air strikes, while pursuing an unimaginative diplomacy that remains the best hope for achieving sustainable peace in the region.

 

Cohen’s diagnosis and allocation of responsibility is a telling expression of the liberal mind-set as it addresses the interlinked agendas of anti-terrorism and Middle East politics. Liberals both minimize Western and American responsibility for what has gone wrong in the spirit of Bernard Lewis and make the partisan United States relationship to Israel seem almost irrelevant to the troubles of the region, thereby overlooking the high costs of the policy. For instance, many knowledgeable observers agree that regional stability would be dramatically enhanced by the establishment of a nuclear weapons free zone in the Middle East. Yet such a policy option was never even considered in diplomatic settings, apparently because it would exert too much pressure on Israel to give up its arsenal of nuclear weaponry, which has given Israel a monopoly on nuclear weapons in the region that insists on preserving at all costs, including risking a disastrous war with Iran.

 

At this stage there are no easy answers as to allocating responsibility or producing causal explanations for terrible realities being endured by the peoples of the region. Quite clearly there are no good military answers to the various unresolved disasters in the region, although that is where the sort of ‘war thinking’ that Cohen affirms continues to place its bets.

 

In contrast, I would contend that a more imaginative diplomacy responsive to international law remains the only way forward. Such an orientation would look with favor on Iran’s active participation, especially in relation to Syria and to the possible negotiation of a regional security framework. It would also presuppose the relevance of a just and sustainable resolution of the Israel-Palestine conflict, which it turn depends upon the adoption of a normal approach by the U.S. Government to its relationship to Israel. Until such a reorientation on the part of Washington policymakers occurs, the path of least resistance is to engage in one air war after another, and mindlessly lend aid and comfort to Sisi’s harsh oppression in Egypt and the dismaying blend of autocracy and theocracy in Saudi Arabia.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

as

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

16 Feb

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

 

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

 

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

 

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

 

 

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

 

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

 

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

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

 

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

 

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

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

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

 

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

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

 

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

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

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

 

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

 

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

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

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

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

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

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

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

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

 

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

 

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

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

 

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

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

 

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

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

 

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

 

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

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

The Irrelevance of Liberal Zionism

4 Jan

 

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

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