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After 70 Years: The UN Falls Short, and Yet..

8 Oct

(Prefatory Note: A shorter somewhat modified version of this post was published in Al Jazeera Turka, but only in Turkish translation. The thesis set forth is that the UN has disappointed the expectations of those who took seriously its original promise of war prevention, but that it has over its lifetime done many things that need doing in the world. It also provided a meeting place for all governments, and has developed the best networking sites for all those concerned with the state of the world and what can be done by way of improvement. The UN System faces an important test in the upcoming UN Climate Change Conference to be held in Paris at the end of November. The event is billed as the make or break session for the governments of the world to agree finally to serve the human interest by establishing a strong enough framework of constraint governing the release of greenhouse gasses that will satisfy the scientific consensus that global warming will not eventuate in human disaster. If Paris is generally regarded as successful, the UN stock will rise steeply, but if it should fail, then its stature and role of the Organization could become even more marginalized. Either way, it is important to appreciate that the UN as of 2015 is a very different kind of political actor than when it was founded in 1945, disappointing to those who hoped for permanent peace and some justice, while pleasing to those who sought from the outset a wider global agenda for the Organization and felt that its best contributions would likely be in a wide range of practical concerns where the interests of major political actors more or less overlap.]



After 70 Years: The UN Falls Short, and Yet..

When the UN was established in the aftermath of the Second World War hopes were high that this new world organization would be a major force in world politics, and fulfill its Preamble pledge to prevent future wars. Seventy years later the UN disappoints many, and bores even more, appearing to be nothing more that a gathering place for the politically powerful. I think such a negative image has taken hold because the UN these days seems more than ever like a spectator than a political actor in the several crises that dominate the current agenda of global politics. This impression of paralysis and impotence has risen to new heights in recent years.


When we consider the waves of migrants fleeing war torn countries in the Middle East and Africa or four years of devastating civil war in Syria or 68 years of failure to find a solution for the Israel/Palestine conflict or the inability to shape a treaty to rid the world of nuclear weapons, and on and on, it becomes clear that the UN is not living up to the expectations created by its own Charter and the fervent hopes of people around the world yearning for peace and justice.


The UN itself seems unreformable, unable to adapt its structures and operations to changes in the global setting. The Security Council’s five permanent members are still the five winners in World War II, taking no account of the rise of India, Brazil, Indonesia, Nigeria or even the European Union. Despite globalization and the transnational rise of civil society, states and only states are eligible for UN membership and meaningful participation in the multifold operations of the Organization.


How can we explain this disappointment? We must at the outset acknowledge that the high hopes attached to the UN early on were never realistic. After all, the Charter itself acknowledged the geopolitical major premise, which is the radical inequality of sovereign states when it comes to power and wealth. Five permanent seats in the Security Council were set aside for these actors that seemed dominant in 1945. More importantly, they were given an unrestricted right to veto any decision that went against their interests or values, or those of its allies and friends. In effect, the constitution of the Organization endowed the potentially most dangerous states in the world, at least as measured by war making capabilities, with the option of being exempt from UN authority and international law.


Such an architectural feature of the UN was not a quixotic oversight of the founders. It was a deliberate step taken to overcome what perceived to be a weakness of the League of Nations established after World War I, which did look upon the equality of sovereign states as the unchallengeable constitutional foundation of an organization dedicated to preserving international peace. The experience of the League was interpreted as discouraging the most powerful states from meaningful participation (and in the case of the United States, from any participation at all) precisely because their geopolitical role was not taken into account.


In practice over the life of the UN, the veto has had a crippling political effect as it has meant that the UN cannot make any strong response unless the permanent five (P5) agree, which as we have learned during the Cold War and even since, is not very often. There is little doubt that without the veto possessed by Russia the UN would have been far more assertive in relation to the Syrian catastrophe, and not found itself confined to offering its good offices to a regime in Damascus that never seemed sincere about ending the violence or finding a political solution except on its own harsh terms of all out defeat of its adversaries.


Of course, the General Assembly, which brings all 194 member states together, supposedly has the authority to make recommendations, and act when the Security Council is blocked. It has not worked out that way. After the General Assembly flexed its muscles in the early 1970s emboldened by the outcome of the main colonial wars geopolitics took over. The GA became a venue controlled by the non-aligned movement, and in 1974 when it found backing for the Declaration of a New International Economic Order the writing was on the wall. The larger capitalist states fought back, and were able to pull enough strings to ensure that almost all authority to take action became concentrated in the Security Council. The Soviet Union went along, worried about political majorities against its interests, and comfortable with the availability of the veto as needed. The General Assembly has been since mainly relegated to serving the world as a talk shop, and is hardly noticed when it comes to crisis management or lawmaking. Despite this development the GA is still relevant to the formation of world public opinion. Its Autumn session provides the leaders of the world with the most influential lectern at which to express their worldview and recommendations for the future. Even Pope Francis took advantage of such an influential platform on which to articulate his concerns, hopes, and prescriptions.


There is an additional fundamental explanation of why the UN cannot do more in response to the global crises that are bringing such widespread human suffering to many peoples in the world. The UN was constructed on the basis of mutual and legally unconditional respect for the territorial sovereignty of its members. The Charter itself in Article 2(7) prohibits the UN from intervening in matters that are essentially internal to a state, such as strife, insurgency, abridgement of human rights, and even civil war. Such an insulation of domestic strife runs counter to the practice of intervention by geopolitical actors, and in this respect gives the UN framework a legalistic character that is not descriptive of the manner in which world politics operates.  


True, when the political winds blow strongly in certain threatening directions as was the case in relation to Serbian behavior in Kosovo that seemed to be on the verge of repeating the Srebrenica massacre of 1995, NATO effectively intervened but without the blessings of the UN, and hence in violation of international law. Then again in Libya the Security Council actually gave its approval for a limited intervention in the form of a no-fly-zone to avoid a humanitarian catastrophe befalling the besieged inhabitants of Benghazi. In that setting, the SC relying on the new norm of ‘responsibility-to-protect’ or R2P to justify its use of force. When NATO immediately converted this limited UN mandate into a regime-changing intervention that led to the execution of Qaddafi and the replacement of the Libyan government it was clear that the R2P argument acted as little more than a pretext to pursue a more ambitious, yet legally dubious and politically unacceptable, Western agenda in the country. R2P diplomacy has been further discredited by the failure to offer UN protection in the extreme circumstances of Palestine, Syria, and now Yemen.


Not surprisingly, Russia and China that had been persuaded by Western powers in 2011 to go along with the establishment of a no-fly-zone to protect Benghazi felt deceived and manipulated. These governments lost their trust in the capacity of the Security Council to set limits that would be respected once a decision was reached. This is part of the story of why the UN has been gridlocked when it came to Syria, and why R2P has been kept on the diplomatic shelf. The Security Council to be able to overcome the veto depends upon trust among the P5 sufficient to achieve a consensus, which was badly betrayed by what NATO did in Libya. Human rights advocates have long put forward the idea that the P5 agree informally or by formal resolution to forego the use of the veto in devising responses to mass atrocities, but so far, there has been little resonance. Similarly, sensible proposals to establish an UN Peace Force that could respond quickly to natural and humanitarian catastrophes on the originating initiative of the UN Secretary General have also not found much political resonance over the years. It would seem that the P5 are unwilling to relax their grip on the geopolitical reins on UN authority established in the very different world situation that existed in 1945.


Kosovo showed that, at times, humanitarian pressures (when reinforcing dominant geopolitical interests) induce states to act outside the UN framework, while Libya illustrates the long term weakening of UN capacity and legitimacy by manipulating the debate to gain support of skeptical states for intervention in an immediate war/peace and human rights situation. The hypocrisy of the R2P diplomacy by the failure to make a protective response of any kind to the acute vulnerability of such abused minorities as the Uighurs in Xinjiang Province of China, the Rohingya in Rankhine State of Myanmar, and of course the Palestinians of Palestine. There are, of course, many other victimized groups whose rights are trampled upon by the state apparatus of control that for UN purposes is treated as their sole and unreviewable legal protector.


In the end, what this pattern adds up to is a clear demonstration of the persisting primacy of geopolitics within the UN. When the P5 agree, the UN can generally do whatever the consensus mandates, although it technically requires additional support from non-permanent members of the SC. If there is no agreement, then the UN is paralyzed when it comes to action, and geopolitical actors have a political option of acting unlawfully, that is, without obtaining prior authority from the Security Council and in contravention of international law. This happened in 2003 when the U.S. Government failed to gain support from the SC for its proposed military attack upon Iraq, and went ahead anyway, with disastrous results for itself, and even more so for the Iraqi people.


It is helpful to appreciate that disappointment with the role of the UN is usually less the fault of the Organization than of the behavior of the geopolitical heavyweights. If we want a stronger UN then it will be necessary to constrain geopolitics, and make all states, including the P5 subject to the restraints of international law and sensitive to moral imperatives.


Another kind of UN reform that should have been achieved decades ago is to make the P5 into the P8 or P9 by enlarging permanent membership to include a member from Asia (additional to China), Africa, and Latin America. This would give the Security Council and the UN more legitimacy in a post-colonial world where shifts in the global balance are still suppressed.


Along with the above explanation of public disappointment, there are also many reasons to be grateful for the existence of the UN and to be thankful that despite the many conflicts in the world during its lifetime every state in the world has wanted to become a member, and none have exhibited their displeasure with UN policies to leave the Organization. Given the intensity of conflict in the world, sustaining this universality is itself a remarkable achievement. It perhaps expresses the unanticipated significance of the UN as the most influential and versatile hub for global communications.


There are other major UN contributions to human wellbeing. The UN has been principally responsible for the rise of human rights and environmental protection, and has done much to improve global health, preserve cultural heritage, protect children, and inform us about the hazards of ignoring climate change.


We could live better with a stronger UN, but we would be far worse off if the UN didn’t exist or collapsed. The only constructive approach is to do our best in the years ahead to make the UN more effective, less victimized by geopolitical maneuvering, and more attuned to achieving humane global governance.

The Yemen Catastrophe: Beset by Contradictions of Will and Intellect

28 Sep

[Prefatory Note: This post modifies an article published in Middle East Eye on September 21, 2015, with title, “Yemen pays the price for Saudis’ sectarian paranoia.” Whether the Saudis are being paranoid about political developments in their neighbors (Egypt, Bahrain, Yemen) or prudent in view of regional threats to the stability of the Kingdom is difficult to ascertain. However this issue is resolved, portraying what has gone wrong as a consequence of sectarianism or an expansionist Iran, evades the real challenges being posed in Yemen, in Syria, and elsewhere in the region. Only in Iraq, where American occupation policy injected

a self-defeating sectarianism as the centerpiece of its post-Saddam Hussein state-building project, does this optic misused when applied to Middle East conflict seem to explain the course of developments, including the alignment of Iraq’s current leaders with Iran rather than with their supposed liberators from the West!]




Yemen Catastrophe: Beset by Contradictions of Will and Intellect


Any attempt to provide a coherent account of the political strife afflicting Yemen is bound to fail. The country is crucible of contradictions that defy normal categories of rational analysis. If we look beyond the political fog that envelops the conflict the tragic circumstances of acute suffering imposed on the civilian population do emerge with stark clarity. Long before the outbreak of civil warfare, Yemen was known to be the poorest country in the region, faced with looming food and water scarcities. The UN estimates 80% of the population is in urgent need of humanitarian assistance, 40% live on less than $2 per day. Further there are high risks of mass famine and epidemic outbreaks of disease will occur, while continuing chaos is a near certainty, with the prospect of yet another wave of desperate migrants swept ashore in Europe.


Against this background, the UN Security Council seems shockingly supportive of a major Saudi military intervention via sustained air attacks that started in March 2015, severely aggravating the overall situation by unanimously adopting a one-sided anti-Houthi Resolution 2216. This Saudi use of force is contrary to international law, violates the core principle of the UN Charter, and magnifies the violent disruption of Yemeni society. The success of the Houthi insurgency from the north that swept the Yemeni leadership from power, taking over the capital city of Sanaa, was perversely treated by the Security Council as a military coup somehow justifying the intervention by a Saudi led coalition of Gulf countries pledged to restore the ‘legitimate’ government to power. To grasp the geopolitics at play it is clarifying to recall that the 2013 blatant military coup in Egypt, with much bloodier reprisals against the displaced elected rulers, aroused not a murmur of protest in the halls of the UN. Once more the primacy of geopolitics is showcased in the Middle East. It’s not what you do, but who does it, that matters when it comes to a UN response.


What makes it even more difficult to make sense of developments in Yemen is the geopolitical tendency, as abetted by the media, to reduce incredibly complex national histories and the interplay of multiple contending forces to a simplistic story of Sunni versus Shia rivalry for the control of the country. Such a prism of interpretation, above all, allows Saudi Arabia to portray once again the strife in Yemen as another theater of the wider region proxy war pitting Saudi Arabia and its Gulf allies against Iran, which is a guaranteed way of securing U.S. and Israeli backing. The same rationale has served the Kingdom well (and the world badly) in explaining why it supports anti-Assad forces in Syria during the last several years. It also was the pretext for intervening in Bahrain in 2011 to crush a popular pro-democracy uprising. If considered more objectively we begin to understand that this sectarian optic obscures more than it reveals, and not accidentally.


For instance, when it came to Egypt, however, the sectarian template was completely discarded, and the Saudis immediately used their financial muscle to help the anti-Muslim Brotherhood coup in 2012 led by General Sisi to consolidate its control over the country. Even when Israel attacked Gaza a year ago, seeking to destroy Hamas, a Sunni Islamic version of the Brotherhood, Saudi Arabia made no secret of the startling fact that it gave Tel Aviv a green light. What emerges, then, is not a regional politics based on sectarian priorities, but rather a pathological preoccupation with regime stability in the Saudi monarchy, with anxieties arising whenever political tendencies emerge in the region that elude its control, and are perceived as threatening. Part of the truer explanation of Saudi pattern of behavior also has to do with the Faustian Bargain struck with the powerful Wahabi establishment, which has allowed the Saud royal clan to flourish at home while spending billions to spread the most repressive version of Islam far and wide to madrassas throughout Asia. The fact that the application of Wahabism at home, including more than 100 beheadings already this year and confinement of women to an extent that makes the Islamic Republic of Iran appear liberal by comparison, is a further sign that international clamor of human rights is selective to put it mildly.


The people of Yemen are paying a huge price for this brand of Saudi violent security politics. Whether it is paranoia at work or a healthy respect for the mass unpopularity of its policies, or some mixture, is difficult to assess. Yet what seems clear is that much of the world is lulled to sleep, not taking the trouble to peer below this sectarian cover story. Only scant account taken of the fact that the real threats to regional order in Yemen do not come from a reasonable Houthi insistence on power-sharing political arrangements, but mainly arise from the presence in Yemen of Al Qaeda of the Arabian Peninsula (AQAP) and ISIS that have been long targeted by American drones as part of the war of the terror ever since 2007. So while the West supports the Saudi fight against the Shia Houthis at the same time it does its best to weaken their most formidable domestic opposition, and in the process further alienates the Yemeni civilian population by its military tactics, which recruits more extremists committed to fighting against this second form of external intervention that finds no basis in international law and enjoys the tacit support of the UN Security Council.


If this was not enough to make the Yemeni crystal ball opaque, there is the internal alignment of forces. On the one side, the 2012 successor regime to the corrupt dictatorial rule of Ali Abdullah Saleh that is headed by its equally corrupt former vice president, Abd Rabbaah Mansour Hadi, now apparently ‘governing’ from exile, although rumored to be seeking a return to Aden. On the anti-regime side, in addition to the Houthis, are the main military and police forces that still respond to the authority of the ousted leader, Saleh, who has returned to the Yemen struggle to oppose the Saudi intervention and have helped turn the tide of battle on the ground against the Hadi-led government. Despite this adverse battlefield reality, the Saudi ambassador to the U.S., Adel al-Jubeir, was quoted as saying “We will do whatever it takes to protect the legitimate government of Yemen from falling.” Tragically, what this seems to mean, is reducing the country to a shambles that brings starvation and disease to the population, and possibly escalating at some future point of frustration by the launch of a ground offensive. There are confirmed reports of a massing of Saudi troops close to the Yemen border.


At this point, it is difficult to know what would bring some kind of peace and stability to Yemen. What we do know is that both the sectarian optic, Saudi intervention, and American drone warfare are dead end options. The beginning of a constructive approach is to take root causes of the current conflict into account. Several need to be considered. There is a long experience of division in the country between the north and the south, and this means that any unity government for the whole of Yemen can only be sustained by an iron-fisted dictator like Saleh or through a genuine power-sharing federalist kind of arrangement based on decentralized autonomy and a weak central governmental structure. Beyond this, the country bears the scars of Ottoman rule intermixed with a British presence in Aden and the surrounding area, vital to earlier colonial priorities of controlling the Suez and the trade routes to the East.


Additionally, and often forgotten and ignored, Yemen remains a composite of tribes that still command the major loyalty of people and reign supreme in many locales. The modern European insistence on sovereign states in the Middle East never succeeded in overcoming the primacy of Yemeni tribal identities. Any possibility of political stability requires subsidizing and respecting Yemen’s tribes as Saudi Arabia did during Saleh’s dictatorship (1990-2012) or creating a multi-colored quilt of autonomous tribal polities. When the background of the north/south split and persisting tribalism are taken into account recourse to the Shia/Sunni divide or the Riyadh/Tehran rivalry as an explanation of Yemen’s strife-ridden country is more than a simplistic evasion of a far more complicated reality. It is a cruel and futile fantasy.


What should be done, given this overall situation? One potential key to achieving some kind of peace in Yemen is held by policymakers in Washington. So long as the U.S. Government remains beholden to the rulers in Saudi monarchy, to the extremists running Israel, and insistent on striking at AQAP targets with drone missiles, this key is unusable. This combination of factors is what makes the wider political turmoil in the Middle East stuck on a lethal fast moving treadmill. How to get off the treadmill, that is the question for which there answers, but as yet no relevant political will.


There are two obvious moves, neither ideal, but with the modest goal of a first step in creating a new political order: first, negotiate a ceasefire that includes an end to the Saudi intervention; secondly, establish a more credible revival of the National Dialogue Conference that two years ago made a failed attempt at Gulf initiative in Sanaa to find a power-sharing arrangement. It did not help matters then that two successive Houthi representatives at the diplomatic discussions were assassinated on their way to participate. What is needed is establishing a political transition sensitive both to the north/south split and the strength of Yemeni tribes coupled with massive economic assistance from outside, as well as the establishment of a UN peacekeeping presence tasked with implementation and the termination of all forms of external armed intervention. Nothing less has any chance of working.


Such a rational path is currently blocked, especially by the intense militancy of the aggressive Saudi leadership of King Salman bin Abdul Aziz Al-Saud, and his son, Prince Mohammed bin Salman, Secretary of Defense, the apparent champion of military intervention. The United States, with its special relationship to Israel, its strong ties to Saudi Arabia, and faith in drone led counterterrorism seems to be swallowing the central contradiction between opposing both its real adversaries, AQAP and ISIS, and its implicit ally, the Houthis. Instead of treating the enemy of their enemy as a friend, Washington has reversed the proverb. This Gordian Knot is strangling the people of Yemen. Cutting it will require a drastic break with current policy. The way forward is evident, but how to get there is not, in the meantime the bodies pile up in what has long been considered the poorest country in the region severely stressed by the prospect of severe water scarcities.


A Gaza Centric History of Palestine: Past, Present, and Future

24 Sep



[Prefatory Note: The review below was initially published in the Journal of the Contemporary Thought and the Islamicate World (SCITIW REVIEW). It is one of three remarkable books dealing with Gaza that I read this past summer. The other two are Mohammed Omer’s Shell Shocked: On the Ground Under Israel’s Gaza Assault (2015) (see my July 8, 2015 post, “Wartime Journalism: Mohammed Omer on Gaza”) and Max Blumenthal’s The 51 Day War: Ruin and Resistance in Gaza (2015). Both of these books are accounts of the 2014 Israeli attack on Gaza by normatively engaged journalists. Omer giving an insider account that stresses the day by day experience of those exposed to such an onslaught that allows one to almost feel the excruciating pain, fear, and loss that Gazans felt during the attacks. Blumenthal also gives readers the benefit of his presence in Gaza and exposure to its courageous population, but he also includes valuable interpretative material. Their normative engagement is evident from their empathy with the Gaza ordeal of the Palestinians and understandable antipathy to Israel’s tactics and overall behavior. While discarding the liberal posture of neutrality, this high quality journalism under the most difficult and dangerous conditions in the sense of conveying the unfolding reality of important events in ways that deepen awareness and understanding beyond what mainstream media reports.

What makes Filiu’s book so important, beyond its extraordinary historical depth that allows readers to better grasp the tragedy that has befallen the Gazan people, is its persuasive insistence of the centrality played by Gaza throughout the experience of Palestinian resistance to Israeli dispossession and annexation, including the originality of the uprising known as the first intifada in 1987, and even more so an insistence that the Gaza holds the key to any kind of sustainable peace between Israel and Palestine. This is a striking view, given the extent to which both Israel and the world treat Ramallah and the Palestinian Authority as central, and Gaza as marginal if not altogether dispensable in the context of diplomatic negotiations and the outcome of the conflict.]

A Gaza-Centric View of the Palestine National Movement


Jean-Pierre Filiu, Gaza: A History, trans. John King, Oxford University Press, 2014, 440 pp., $29.95 US (hbk), ISBN 9780190201890.

The distinguished French historian, Jean-Pierre Filiu has produced a magisterial overview that recounts the ebb and flow of Gaza’s fortunes from ancient times up through the present. Although a member of the faculty of Sciences Po in Paris, Filiu is not a typical academic historian, having earlier served as a diplomat in Jordan, Syria, and Tunisia, published two novels, and even written popular songs, including one devoted to Gaza. Filiu’s pedigree training and scholarly contribution have earned him a deserved reputation as one of the world’s leading Arabists, and someone particularly expert on political trends in contemporary Islam. He has published several well-regarded books on the Middle East including The Arab Revolution: Ten Lessons from the Democratic Uprising (2011) and From Deep State to Islamic State: The Arab Counter-Revolution and its Jihadist Legacy (2015). The latter book poses the haunting question as to whether the political destiny of the peoples in the Middle East is to remain entrapped in the ongoing struggle between tyrannical leaders and Muslim fanatics. More than most commentators on the regional developments, Filiu perceptively realized that the democratizing hopes of the “Arab Spring” in 2011 would be short lived, and likely would be soon overwhelmed by a variety of counterrevolutionary forces intent on restoring an authoritarian status quo ante, however high the costs of doing so. The main motive of these counterrevolutionary elites was to avoid the twin fates of secular democracy and radical Islam.

Filiu’s authoritative treatment of Gaza starts with a useful background summary of its role as a trading center in the ancient world of the Middle East with a past traced back to the Hyksos people of the eighteenth century BCE. Readers are helpfully informed that Gaza, situated between Sinai and Negev Deserts and the Mediterranean Sea, became a major site of struggle for warring neighbors over the long arc of history, including Egyptian pharaohs, Persian kings, Greeks, Romans, Arabs, Fatimids, Mamluks, Crusaders, and Ottomans. Filiu emphasizes the rivalry between Baghdad and Cairo with respect to Gaza as contributing to the frequent changes of fortune confronted by the city and region. A second chapter is informative about the generally unappreciated relationship of Gaza to hallowed figures in Islamic tradition. For instance, one principal mosque in Gaza is built to honor the memory of the great grandfather of the Prophet and another is dedicated to one of Muhammad’s close followers who accompanied him on his sacred journey from Mecca to Medina. Both of these men were prosperous traders who brought caravans of goods from Arabia for sale in

September 22, 2015


the markets of Gaza. After presenting this early history, Filiu devotes the remainder of Gaza to Gaza’s experience in the continuing struggle over Palestine’s future that began in a serious way with the Balfour Declaration of 1917 and the British Mandate established after World War I under the auspices of the League of Nations lasting until 1947 when Britain turned over responsibility for Gaza’s future to the United Nations.

The remaining fifteen chapters of Gaza narrate the tortured and tormented experience of Gaza, the scene of many dreams of liberation and peace, but also a place of frequent carnage and a continuing ordeal of massive suffering. Gaza, which covers 140 square miles, the size of several middle sized American cities, still plays a central role in the unfolding Israel/Palestine conflict. In this fundamental respect, Gaza is a detailed historical narrative of past and present, which also underscores the totally unresolved future of Palestine as a whole, leaving readers free to contemplate Gaza’s future through the sophisticated optic that Filiu provides.

Filiu has produced, in a manner that I find extraordinary, a study of Gaza’s history over this incredible sweep of time that manages to exhibit at each phase of the narrative an astonishing mastery of detail. Filiu presents us with the dizzying interplay of dominant personalities interweaved with accurate depictions of the many defining incidents that give substance to the complex history and experience of Gaza. Such a tours de force of scholarly achievement does not make for easy reading given the density of the material. As a whole, Gaza is somewhat overwhelming in its cumulative impact as a result of its long succession of unfamiliar names and recitation of one detail after another that are difficult for a normal reader to keep in mind. At the same time, beyond the weight of Filiu’s facticity is a wealth of interpretative knowledge that imparts an unprecedented understanding of the contemporary experience of Gaza and the part it has played for both Israelis and Palestinians in the unfolding conflict.

Despite this challenge posed by this seeming surfeit of names and events, a kind of pre- digital example of information overload, Filiu facilitates comprehension of the main narrative motifs by framing his central interpretative analysis through reference to illuminating conceptual themes. He proceeds chronologically assessing the unfolding Palestinian ordeal in three clusters of four chapters each: “1947-1967: The Generation of Mourning,” “1967-1987: The Generation of Dispossession,” “1987-2007: The Generation of the Intifadas.” The book concludes with a final chapter entitled “The Generation of the Impasse?” as if the currently blocked situation in the underlying conflict between Israel and Palestine that has dominated the lives of the Gazan people for several generations seems likely to continue to be their fate for the indefinite future. Filiu ever so slightly lightens this gloomy prospect by putting a question mark at the end of the chapter title, perhaps acknowledging that not even a master historian should pretend to foretell Gaza’s future with confidence or indicate with confidence hopes and fears that the impasse will be broken at some point.

With this framework Filiu brilliantly portrays the Palestinian ordeal as it has tragically played out during the 67 plus years since Israel came into existence as a sovereign state. There is no attempt by Filiu to write this contemporary history of Gaza from a detached point of view, that is, by suspending empathetic feelings and ethical judgments. The tone of the narrative and the spirit of Filiu’s personal engagement with the Palestinian tragedy is clearly conveyed on the dedication page: “To the memory of the thousands of anonymous who died in Gaza before their time though they had a life to live en famille and in peace.” In effect, without sparing Palestinians and their leaders harsh criticism for failures of competence in the course of his narrative, including their embrace of brutality and

corruption, Filiu laments Palestinian victimization and decries Israeli oppression. With such a perspective it is not surprising that Filiu is generally sympathetic with Palestinian resistance activities over the years.

In discussing partition, the plan proposed by the UN General Assembly to overcome the tensions between Jews and Arabs in Palestine, Filiu makes clear that the Zionist movement was pushing the British hard to endorse such a division during the latter stages of the mandatory period. For Zionist leaders partition seemed at the time the only available path leading to the establishment of a Jewish homeland in Palestine, thereby achieving the basic Zionist project in accord with the Balfour undertaking. In angry contrast, the most representative Arab voices in Palestine were early united in their fervent opposition to partition ever since it began to be seriously considered by the British government, increasingly aware of rising tensions between the resident Arab population of Palestine and the successive waves of Jewish immigration. Already in 1937 Fahmi al-Husseini, the mayor of Gaza, warned British authorities against partition and any related attempt to promote the emergence of Jewish statehood. Filiu quotes al-Husseini to illustrate this depth of opposition: “It would be better for the British government to consign the inhabitants of Palestine to death and destruction, or even to envelop them in poison gas, than to inflict upon them any such plan” (46). As we know, such Palestinian wishes were ignored not only by the British, but also by the organized international community acting under the auspices of the United Nations. In response to the mounting tension in Palestine between Jews and Arabs, Britain went ahead and proposed partition, which was consistent with their typical colonial endgame and legacy in many other parts of their collapsing empire (for instance, Ireland, India, Malaya, and Cyprus). When the UN in 1947 did finally propose partition in General Assembly Resolution 181, the British surprisingly abstained, perhaps feeling that there was nothing to be gained at that point by further antagonizing the Arab world, especially given the persistence of British interests in the region, epitomized by the retention of the Suez Canal.

The focus on the complex dialectics of victimization and resistance in Gaza is at the core of Filiu’s interpretative standpoint. This emphasis likely represents the most enduring contribution of the book to our appreciation of both the scholarship and policy relevance of the Gaza Strip to the overall story of the Israel/Palestine struggle. What Filiu does convincingly is to challenge the mainstream view that Gaza is but an ugly sideshow of the main Palestinian dramas, generally regarded by both sides to be the West Bank and Jerusalem. Of course, the centrality of Gaza’s victimization has become internationally recognized, especially after the imposition of a blockade in 2007 when Hamas took over the government in Gaza and during the last seven years when Israel launched savage attacks in 2008-2009, 2012, and 2014 that eroded the carefully orchestrated public image of Israel as a benevolent political actor. What Filiu significantly adds to this image of Gazan victimization is the understanding that the broader movement of Palestinian national resistance has been centered in Gaza since the onset of the conflict with the Zionist project, and that this pattern of resistance continues in Gaza more than elsewhere in Palestine despite the severe and prolonged forms of collective punishment imposed by Israel on the Strip over the course of decades.

Even more challenging is Filiu’s controversial insistence that a sustainable peace between Israel and Palestine can only be achieved if Gaza will be accorded a decisive role in the process. Filiu underscores this belief in his drastic revision of thinking surrounding the peace process in the closing sentences of Gaza: “It is in Gaza that the foundations of a durable peace should be laid…The Gaza Strip, the womb of the fedayin and the cradle of the



intifada, lies at the heart of the nation-building of contemporary Palestine. It is vain to imagine that a territory so replete with foundational experiences can be ignored or marginalized. Peace between Israel and Palestine can assume neither meaning nor substance except in Gaza, which will be both the foundation and the keystone” (340).

Filiu’s view of a peaceful solution challenges the view of most Israelis that Gaza, without figuring in Israeli biblical claims, and containing 1.8 million Palestinians hostile to Israel’s very existence, has no place in Israel’s conception of its own final borders or of an acceptable outcome of the conflict. Israelis generally regard Gaza as nothing more than a bargaining chip in any future peace negotiations. From Israel’s perspective Gaza is the one unwanted part of occupied Palestine (in sharp contrast, with Jerusalem and the West Bank), an assessment provisionally expressed by Israel’s “disengagement” from Gaza in 2005, which involved the withdrawal of IDF forces and the removal of Israeli settlers in a plan conceived and implemented by the Israeli hardline leader Ariel Sharon. Gaza continues to be viewed as a threat to Israeli security if ever allowed to become consolidated with the West Bank in a future Palestinian state and is viewed as a threat to Israel’s ethnocratic and democratic claims if incorporated into a single Israeli state encompassing the whole of historic Palestine.

With respect to Gaza, Israelis seem now to prefer either retaining control over a subjugated and devastated Gaza or inducing Egypt to resume responsibility for administering Gaza. The Egyptian government has made clear its unwillingness to accept responsibility for governing Gaza, which makes the unfortunate present situation the most likely scenario for the foreseeable future. In this sense, the whole burden of Filiu’s assessment is at odds with the manner in which Washington framed the “peace process,” which, as might be expected, seems based on an acceptance of Israel’s view of the marginality of Gaza with respect to the final resolution of the conflict.

Filiu’s mode of highlighting Gaza also challenges the views of the Palestinian Authority, with its capital in Ramallah, that gives its highest priority to ending Israel’s occupation of the West Bank, getting rid of as many Israeli settlements as possible. The Palestinian Authority seems to care little about the fate of Gaza, especially since Gaza fell under the control of Hamas in 2007, although its formal position continues to include Gaza as an integral part of a Palestinian state.

In this respect, Filiu’s Gaza-centric interpretation of the conflict between Israel and Palestine is by far the most original and controversial part of his historical account. It rests on a carefully documented narrative of Gaza’s role as the true center of Palestinian resistance and resilience throughout more than six decades of struggle. As Filiu mentions, the most perceptive of Israeli leaders, notably David Ben-Gurion, were nervous about the developing situation in Gaza from the earliest period of Israel’s existence, especially as Gaza became the default option for many Palestinians displaced during the nakba, the occasions of massive expulsion and dispossession that caused so many Palestinians to be driven from their homes, and to seek sanctuary in Gaza, the West Bank, and neighboring Arab countries. In Filiu’s view, throughout the war that produced the establishment of Israel as a sovereign state, “…Israeli units were systematically driving the Arab population out of the combat zone even when their villages offered no resistance to the advance of the Zionists” (62). The sadness and desolation of dispossession resulted in Gaza becoming early in the conflict dominated and radicalized by refugees and their profoundly alienating experiences. In the late 1940s Palestinian refugees amounted to more than 75% of Gaza’s total population.

The large refugee camps spread throughout tiny Gaza became focal points of ferment and eventually resistance, taking the initial form of the fedayin insurgent activities from the

1950s on. It was the fedayin fighters that found ways to penetrate Israel and inflict casualties particularly on soldiers and police, and later, on Israeli settlers in Gaza. This type of armed struggle inevitably prompted Israeli reprisal raids that were from their outset deliberately disproportionate. As Filiu observes, “[i]t was in Gaza that the fedayin were moulded, and the Hebrew State would soon make Gaza pay for it dearly” (94). This prediction was fulfilled in 1956, Egypt being displaced from Gaza, and Israel occupying the Strip for four months as an aspect of the Suez War, with accompanying massacres of Palestinian civilians being carried out by the Israeli military prior to a UN protective force being inserted to monitor the border. Filiu asks this provocative question: “Is there any doubt that the history of Gaza would have taken a different turn had a Palestinian entity been established there, under UN protection, in defiance of Israel, while maintaining special ties with Egypt” (105-106)? Although Filiu seems to have meant the question to be rhetorical, I am skeptical of any supposition that Gaza might have been spared Israeli fury even if the UN had agreed to sponsor and protect Gazan self-determination and sovereignty within the less crystalized climate of opinion in 1956. The political will to confront Israel has never existed on a global level or within the United Nations except to the extent of adopting a public discourse sharply challenging Israel’s policies and practices that is reinforced by periodic censure moves that were generally softened or opposed by the West.

As dramatic as the fedayin phenomenon, the outbreak of the intifada in 1987 that witnessed an unexpected mobilization of Palestinian civil society in Gaza, later spreading to the West Bank, challenged Israel’s capacity to maintain order in occupied Palestine. As Filiu persuasively argues, it was the fedayin and intifada that finally lent credibility and inspiration to the Palestinian national struggle, somewhat overcoming the humiliating failure of the pathetic international efforts by neighboring Arab states to challenge the existence of Israel. The failure of these several regional wars, culminating in the disastrous Arab defeat in the 1967 War, which greatly expanded Israel’s territorial identity, resulted in a second and permanent occupation of Gaza, with the war having the geopolitical effect of transforming Israel in American strategic thinking from being a heavy burden on U.S. foreign policy in the Middle East to becoming a major strategic asset. Unfortunately for the Palestinians, “the rest is history.”

Filiu gives a fascinating portrayal of the rise of Islamism in Gaza, including a depiction of the charismatic leader, Sheikh Ahmed Yassin, who was assassinated by an Israeli missile in 2004. What Filiu’s discussion shows it that the early Islamic efforts in Gaza, inspired by and derivative of Egypt’s Muslim Brotherhood, were devoted on principle to resistance activities within the law, focusing on a long range view of liberation by way of family values and education. It was only as a result of Israeli oppression in Gaza and a growing rivalry for popular allegiance with the secular coalition, the Palestine Liberation Organization under the leadership of Yasser Arafat, that led to the formation of the militant Hamas, and with this development, to extreme violence, highlighted by suicide bombing attacks within Israel in the late 1990s, often directed at the civilian population. Israel, at first, actually encouraged the political emergence of Islam, supposing that it would weaken what was perceived to be its principal adversary, the PLO, but as time passed, and Hamas tactics shifted to suicidal violence, Israel treated Hamas as a terrorist organization, and remains unwilling to back off such a view despite Hamas’ effort to pursue a political track for reaching its national goals since it took part in Palestinian elections in 2006.

Arafat is duly presented as the leading Palestinian liberation figure and international diplomat, but also deeply criticized by Filiu for the political innocence of his deferential approach to the United States and accompanying naïve hopes that Washington would deliver



a just peace to the Palestinians after the Oslo Framework of Principles had been agreed upon in 1993. Filiu draws our attention to Arafat’s reaction to the 1995 assassination of Yitzhak Rabin, which brought tears to his eyes and the tormenting cry “It’s over, it’s over” (234)—meaning the prospect of a negotiated peace died with Rabin. Although Filiu does not evaluate Arafat’s reaction, it seems exaggerated, given Rabin’s acquiescence in expanding the settlement movement in the West Bank and Jerusalem and his “iron fist” policies in reaction to the first intifada.

One of the several virtues of Filiu’s historical approach is his willingness to employ evaluative language to describe Palestinian experience of victimization and Israeli tactics of oppression. He repeatedly refers to Israeli practices as imposing “collective punishment,” and as resulting in “massacres” of innocent Gazans, and of the experience endured by Gaza’s population as trauma, including “collective trauma.” At the same time, despite being highly critical of Israel’s approach, Filiu avoids any condemnations based on international humanitarian law or international criminal law. Filiu does not, unlike Ilan Pappé and other critics of Israel’s behavior in Gaza, speak of “genocide” or even “crimes against humanity.” In general, I conclude that Filiu’s sense of critical history with respect to Gaza does not accord significant relevance to international law.

In conclusion, Filiu provides a reader with a wealth of information, an historical perspective that greatly deepens our appreciation of the importance achieved by Gaza in the past, and above all, depicts the brutality of Israel’s behavior toward the people of Gaza and its failure to quell the spirit of Palestinian resistance. At the center of Filiu’s argument, beyond his assessment that the present period is best characterized as one of “impasse,” is the claim that Gaza remains the keystone for a sustainable peace between Israelis and Palestinians, a view shared by neither the formal Palestinian leadership nor by any influential Israeli, American, or European leaders, past or present. However this issue is resolved, Filiu is highly successful in making a reader appreciate Gaza’s illustrious past and the crucial role that recent generations of its people have played in keeping the fires of Palestinian resistance burning even in the face of Israel’s cruel, domineering, and oppressive behavior.

A few final comments on Filiu’s historiography. First of all, I wonder whether it was necessary to provide so much factual detail in narrating the history of Gaza; it seems to me that the main interpretative lines of assessment could have been developed as authoritatively, and with a gentler reading experience. Secondly, I think that the ethical forthrightness of Filiu’s approach lent added clarity to his interpretive perspectives, and was valuable as a matter of “full disclosure” of author to reader. If hidden from view, it would have raised questions about integrity and trust. And thirdly, the inclusion of prescriptive ideas in a work of contemporary history gives greater practical relevance to the understanding of the past being set forth. Policymakers on all sides would gain much from Filiu’s deeply considered argument for the centrality of Gaza to the Palestinian national struggle and to hopes for a sustainable peace that protects the rights of both peoples on the basis of equality.


The Horrifying Syrian Dilemma Persists

15 Sep



[Prefatory Note: This post is a somewhat modified version of the text published on the Middle East Eye website on September 9, 2015, and here by prior arrangement.]


On its surface Syria offers seems an ideal case for humanitarian intervention. An incredible half of the 23 million Syrians are either internally displaced or refugees living in dire circumstances, aggravating the migrant crisis currently overwhelming Europe. What is worse, mass atrocities have continued under the authority of the Damascus regime since March 2011, and to some degree by actions of the opposition. Further, for more than a year ISIS has emerged as a principal opposition force in Syria, and is responsible for unprecedented barbarism in large areas of the country under its control.


Beyond this, a diplomatic resolution of the conflict has so far failed miserably. The UN has appointed several distinguished Special Envoys who have resigned in disgust unable to rely on ceasefire reassurances from Bashar el-Assad. The two Geneva inter-governmental conferences that were convened with great effort ended in utter frustration. The United States is far from blameless, seemingly avoiding Russian compromises early on because it believed that the insurgency was on the verge of victory, and diminishing prospects later by insisting that Iran be excluded from the diplomatic process because of Israeli and Saudi sensitivities.


To complete this depressing picture, the parties to the conflict seem badly stuck, neither having a path to victory nor displaying any willingness to work toward a credible compromise. The opposition to the Assad government remains incoherent and disunited, and certainly seems incapable of offering Syria a workable alternative.


Not surprisingly given this overall situation, especially the spectacle of persisting civilian suffering, with its regional spillover effects destabilizing Lebanon, Iraq, and Turkey, is prompting a renewed call for humanitarian intervention, most influentially, in the form of a no fly zone (NFZ). It is contended that a well implemented NFZ could protect Syrians from the ravages being wrought by notorious barrel bombs. These terrible weapons are mainly used by Damascus to make civilian governance impossible in rebel held areas of the country. Proponents of intervention argue that once a NFZ is established it will ease civilian suffering, and might in due course exert sufficient pressure on the Syrian leadership to produce a political climate in which an acceptable diplomatic solution is finally attainable and this dreadful war brought to an end, a result that might even have at this point the benefit of a nudge from Iran and Russia.


Responsibility to Protect


The UN recently held a self-congratulatory session celebrating the 10th anniversary of the R2P (or responsibility to protect) norm, while acknowledging that there was work to be done considering the existence of ongoing killing fields as Syria, Iraq, South Sudan, Central African Republic, and North Korea. Notably absent from the list, a supreme instance of diplomatic tact at its hypocritical worst, was Gaza, and more generally, occupied Palestine, which since 2012 is after all a ‘state’ in the eyes of the General Assembly. Such other geopolitical touchy places as Kashmir, Rakhine, Xinjiang were also conveniently ignored in this effort to assess the record of R2P’s first decade. Leaving these awkward silences aside, at least the question should be asked: ‘Why has the R2P norm not been applied to Syria?’ The answer illuminates what is wrong with the cynical way world order operates in a post-Cold War setting, being more protective of trade and finance than it is of people, more motivated by oil than by a genuine humanitarian rescue mission.


The superficial obstacle to a R2P operation in Syria is the geopolitical standoff between states continuing to back the Assad regime and those supporting the opposition. This means that approval of an NFZ as a tactic compatible with the UN Charter is unavailable because of an anticipated Russian veto. Thus any use of force, such as establishing a NFZ, in either the north or south of Syria, or both, would neither have the backing of the UN Security Council nor qualify as self-defense under international law. This means that such an undertaking would violate the Charter on its key principle of prohibiting recourse to non-defensive international force without authorization from the Security Council, thereby disregarding the requirement of UN approval that is a critical feature of the R2P approach.


Proceeding outside the UN would further undermine the authority of international law with respect to war/peace issues. A less legalistic and constitutionalist explanation of this blockage arises from the dark side of the R2P precedent set in Libya back in 2011 when Russia and China and other SC members, despite their reluctance, were persuaded to allow a proposed humanitarian NFZ in Libya to be established only to find that the UN debate was a notorious instance of bait-and-switch. It was obvious that NATO’s intentions from the outset were far more expansive than the authorizing resolution in the Security Council, and once the military operation began immediately employed tactics seeking regime change in Tripoli rather than civilian protection for Benghazi. What seemed to skeptics of the R2P approach as an outright deception in its first test of R2P left a bad taste that has definitely discouraged a cooperative approach to Syria that engaged Russia. The Libyan precedent is not the whole story of relative passivity of the international community by any means. Syria’s antiaircraft capabilities also inhibited coercive action by making it more problematic to suppose that air power could shift the balance quickly and at moderate costs against the Assad regime.





Kosovo—A Poor Precedent


Then there is the earlier Kosovo precedent in which a humanitarian intervention was controversially carried out without UN approval, under the authority of NATO before the R2P norm existed and in the face of strong Russian opposition. Arguably, the operation was a success, Serbian oppressive rule ended, Kosovo and its people saved from an impending episode of ethnic cleansing similar to the Srebrenica massacre of Bosnian males (1995), and despite being ignored in the undertaking, the UN willingly entered the post-conflict scene in a big way to help Kosovo achieve transition to political independence. One influential appraisal of Kosovo pronounced the NATO intervention to be unlawful, yet legitimate, because it effectively removed a credible threat of imminent threat of mass atrocity at a moderate cost.

Several problems arise if relying on Kosovo to justify establishing a NFZ in Syria. First of all, Syria is a much larger country within which a civil war has been raging for more than four years causing an estimated 300,000 deaths, the Syrian government is reported to have sophisticated antiaircraft capabilities. Secondly, Europe was unified with regard to an anti-Serb intervention in Kosovo, with the partial exception of Greece, whereas the Middle East is so deeply divided with respect to Syria as to be engaged on opposite sides of a proxy war with sharp sectarian dimensions. Thirdly, the opponents of NFZ, unless persuaded to change their position, are more deeply involved, and have the capabilities to offset the impact of such an operation against their ally in Damascus.


Fourthly, assuming that a Syrian NFZ would be effective, the elimination of Syrian air power might actually work to the advantage of ISIS, which operates exclusively on the ground. Fourthly, unlike Kosovo where the U.S. was eager to demonstrate that NATO still had a role in the post-Cold War world, the geopolitical motivation in Syria remains confused and weak, being uncertain despite the passage of time. Also, the U.S. has had bad experiences with its recent interventions in the region, especially Iraq and Afghanistan, and wants to avoid being drawn into yet another war in a predominantly Muslim country. And fifthly, the present scene in Libya and Iraq show that handling the effects of even a militarily successful intervention can lead to prolonged chaos and militia governance. Such experiences of sustained chaos are not viewed by most of the affected population as improvements over the old authoritarian orders held together by the brutality of Qaddafi and Saddam Hussein, or Assad. When the alternatives are chaos or order, populist sentiments generally opt for order. This pattern has been evident throughout the region, especially in the aftermath of the short-lived Arab Spring.


Further in the background are considerations associated with state-centric world order in a post-colonial setting, which in the Middle East has left many bad memories of the harm the European colonial powers did to the region after the collapse of the Ottoman Empire in 1918. To override the sovereignty of a state, and its capacity for national resistance, ignores the experience of the world in the period since 1945 where almost every Western intervention has ended in political failure.


The West’s Dilemma


So here is the dilemma: to stand by doing nothing while mass atrocities occur year after year in Syria with no end in sight is an intolerable international failure of moral responsibility for human suffering of this innocent civilian population. Yet to do something that will actually improve the situation is far from obvious, and the record of NFZs in the kind of situation that exists in Syria is not encouraging, nor are other coercive alternatives. General Martin Dempsey, the American Chairman of the Joint Chiefs of Staff, recently warned against establishing a NFZ in Syria, pointing out that the government’s antiaircraft capabilities are at least five times greater than what Libya possessed, including some high end systems capable of shooting down high altitude planes.



There are some alternatives that try to find tactics that do something without making the situation worse. One sort proposal is to propose a more assertive approach by the United States, comprehensively advocated in a recent report of the International Crisis Group, believes that a series of non-military and covert initiatives could make a difference. It argues that this approach should start with what is logistically easier, a focus on the South of the country where moderate anti-regime forces are in greater control, and then if successful, extending such tactics to the more contested Northwest where Syrian antiaircraft pose a greater obstacle and ISIS has its strongholds.


All in all, the West cannot stand one more failed intervention in the Middle East, nor can it leave unattended a deep humanitarian crisis that spilling over Syrian borders. The burden in such a tragic situation should be placed on pro-interventionists to show convincingly how a NFZ can be established and maintained in the face of expected resistance from within and opposition from without. So far this burden has not been sustained. There are other ways to help alleviate civilian suffering and to exert greater pressure on Damascus that do not rely on such a blunt and unreliable instrument as a NFZ. In the background is the steadfast refusal of the United States or its European allies to be willing to contemplate an occupation of Syria via a ground attack, not because of legal or moral inhibitions, but due to the lack of political support for any military operation likely to result in significant casualties for the intervenor.


There exists a more drastic diplomatic approach that should have been tried long ago, and still seems worth the effort: bringing Iran and Russia into a peace process as major players, overriding objections by Saudi Arabia and Israel. Such a diplomatic atmosphere might at last create the war-ending conditions for compromise and cooperation that include putting pressure on Damascus. In such an altered setting, either a NFZ, or an equivalent proposal could find support within the Security Council or such a measure would no longer be needed. This diplomatic initiative is admittedly a long shot, but better than the alternatives of doing nothing or acting outside the framework of the UN and international law with scant prospects of success and big chances that things would go badly wrong. There are reliable reports circulating that the U.S. Government rejected a Russian backed initiative 2012 that would have included Assad being removed from power because Washington was then so convinced that the Damascus government was about to collapse in any event, and no diplomatic compromise was needed. At least, there is now a more realistic understanding of the balance of forces in Syria, and what form of compromise has any chance of being sustained. Unfortunately, however, with the emergence in the meantime of the al-Nusra Front and ISIS, difficult questions arise as to whether in the situation that prevails at present any compromise is sustainable unless externally maintained by a major international presence, which itself seems politically unattainable. 

What this prolonged dilemma in the face of mass atrocity shows is the deficiency of state-centric world order if appraised from the perspective of human wellbeing rather than national interests. The failures in Syria are not just the shortcomings of diplomacy and manipulations of geopolitics, but also a severe mismatch between structures and capabilities of global authority and the vulnerabilities of the peoples of the world. Until these structures are transformed on the basis of the human and global interests Syrian dilemmas in one form or another are bound to recur.

OUTLOOK INDIA Interview on ‘Digital India’ & PM Narendra Modi

14 Sep

[Prefatory Note: I am posting here an interview with the magazine OUTLOOK INDIA associated with an open letter that was signed by more than 100 Indian scholars and intellectuals, as well as those such as myself with a long research and human interest in India, expressing concern about the forthcoming visit of Prime Minister Narendra Modi to Silicon Valley to promote his vision of ‘Digital India.’ I feel strongly about these issues, especially in light of the Snowden disclosures and the general use of digital capabilities to encroach upon personal freedom and a climate of liberty in post-9/11 America. The link to the original text is <;  The quoted remark at the beginning of several questions are taken from the text of the letter, which is referred to in the interview as ‘a petition.’ FYI, the full text of the letter and a partial list of signatories is appended after the interview.]



[Editorial Preface of OUTLOOK]: Prime Minister Narendra Modi will visit Silicon Valley later this month. But over 137 US-based academics and intellectuals have already filed a petition to the Silicon Valley Enterprises expressing concern about Modi and his ‘Digital India’ campaign. It is not surprising that Richard A. Falk is one of the petitioners. The professor emeritus of law at Princeton University, a highly respected academic, has always been an outspoken critic of governments and policies that violate human rights and civil liberties. At 84, he has authored and co-edited more than 40 books and is a well-known commentator on his own. As former UN rapporteur on Palestine, Falk is also one of the few Jews who was denied a visa by Israel for his outspoken views about Israeli atrocities and occupation of Palestinian territory. He tells Pranay Sharma why he’s a signatory to the petition against Modi.] 

Q: What is the prime concern you have against Narendra Modi’s ‘Digital India’ campaign?

I and others on the list have questions about Narendra Modi’s record on religious tolerance, freedom of religion, and freedom of expression. Some of those who signed the letter have also been subject to a campaign of harassment from Hindu nationalist followers, which raises particular worries about academic freedom. “Digital India” as an initiative has enormous potential to affect positive social change, but it simultaneously poses dangers for abuse under the Modi administration that can make use of digitalization to target members of minority communities or those who are critical of its policies. It is my impression that the Modi government has been particularly sensitive to criticism and unfriendly to critics, making our concern more credible.

Q: Does this fear stem from the individual-Narendra Modi in this case -or the proposed campaign itself?

It’s not too clear at this stage exactly what “Digital India” will become programmatically, and this is precisely why we wrote to register our concerns-to influence the course the debate will take. Most of the media treatment that I and my colleagues have seen is so far more concerned with branding the campaign rather than focusing on its substance, The plan as outlined on the Government of India website, is appropriately ambitious, and commendably has the “empowerment of citizens” at its core. But the potential for disempowerment is also present as the gap widens between those who have access to internet technology and those in India who still lack water and electricity. I believe that some of my colleagues have reasonable grounds to worry that the planned heavy investment in digital infrastructure will widen this gap, and along with it, socio-economic disparities.. There is no present indications that the Indian government is implementing policies designed to reduce, if not eliminate, the gap. And with respect to your underlying question it is impossible to disentangle the Modi Government or Modi as a political personality from the Digital India Campaign.

Q: Are there real reasons for such apprehensions given the fact that much of the proposed programme was actually undertaken by Modi’s predecessor, Manmohan Singh? “Digital India has great potential, but under the Modi government it poses dangers for abuse.”

Some of the same concerns would have surfaced in all likelihood under any Indian government.These concerns are magnified given Modi’s record on freedom of expression leading me and my colleagues to have apprehensions about a process of digital consolidation that can lead to further breaches not only of privacy but of individual security. A realization that the previous government in India has been working toward e-governance, and that these issues are ones faced by other governments in the world does not in any way make it irrelevant to raise issues associated with Modi’s specific record. As an American, with a deep commitment to the wellbeing and positive development of India, I have joined with Indian colleagues because I have seen what digital age abuses have occurred in my own country. The Snowden disclosures should serve as a reminder that citizens of all countries need to exert unprecedented vigilance in the defense of freedom and in support of societal equity given the contemporary interface between totalizing governmental security and technological capabilities.
Modi was a three-time elected chief minister of Gujarat and in 2014 successfully won an impressive mandate to become India’s Prime Minister. How do you see the obvious support he has among a sizeable section of Indians?

The fact that a policy or programme is popular or even that the majority of people at any moment in time is in favor does not make it right or suggest the inappropriateness of constructive criticism. We have witnessed this tension between what is popular and what is right numerous times in recent history, and speaking personally, perhaps most vividly with respect to the implementation of U.S. foreign policy on a global scale. We can recall with remorse a lone American Congress woman, Barbara Lee, who held out as the sole dissenting voice against authorizing the US president to go to war against Afghanistan-a policy that the entire US Congress and the rest of the country favored at the time, but produced disastrous consequences. Modi’s support appears to rest on several factors, but he and his administration have at times disturbingly invoked Hindu nationalist rhetoric to gain the enthusiastic backing of the Hindu majority in the country raising insecurities among minorities.

Q: Do you think democratic institutions in India have been weakened or seriously threatened since Modi became the Prime Minister?

My response to this question is shaped by the opinion of Indian colleagues and trusted friends, so I will not comment too much on internal dynamics. At the same time, we are living in a borderless world, not least because of the impact of the digital dimensions of modern life, and so as concerned citizens of the world we cannot shut our eyes to threatening developments even in distant countries, while at the same time being respectful of norms of non-intervention and of rights of self-determination. From this perspective, I have come to believe that democratic institutions have been weakened under Modi’s administration. It’s true that some of these anti-democratic tendencies were already evident in the behavior of prior Indian governments, but it is also the case that the last administration brought out the “Right to Information” package of reforms that has greatly increased government transparency and empowered people to hold the Indian government accountable. It’s not clear at this point whether “Digital India” in Modi’s hands will lead to increased transparency. The background of his record as the Chief Minister of Gujarat, and the experience of his first year as Prime Minister gives rise to a legitimate concern that the future of India as a democratic country is at sufficient risk to justify a petition raising questions that need to be discussed.

Q: The petition mentions Modi’s alleged role in the Gujarat riots. But given the fact that large number of world leaders including President, Barack Obama, now engage with him, do you think these charges are still relevant? “Modi’s background as CM and his first year as PM raises concern that India’s democracy is at risk.”

Yes, they are still relevant even legally: there is currently an undecided appeal in the Gujarat judicial system that raises serious questions about whether Modi took adequate steps to control the Gujurat violence in 2002, and whether he was actively implicated in its unfolding. Whether or not this unfinished legal process produces an adverse assessment of his conduct, Modi’s speeches at the time were themselves sufficient by themselves to validate continuing worries. They were inflammatory, and made no effort to restore calm and avoid violence. Such behavior signals the reasonableness of seeking clarifications and reassuring procedures. The fact that Obama and other world leaders engage Modi diplomatically is to be expected, especially when it is considered that he is the head of the world’s largest democracy and important actor in the world economy. We have seen many examples in history in which leaders lead people in a terrible direction, and yet are treated as normal and legitimate for purposes of international relations. The legacy of George W. Bush is a painful instance of a leader who did the US and the world a great deal of harm without undermining his legitimacy. Ariel Sharon when acting on behalf of Israel committed what many regarded as crimes against humanity, but when he was democratically elected in 2000 the world dealt with him without looking back. It is up to people of conscience to look back. When wrongs are done to people whether internationally or at home they do not fade from view with the passage of time. If there is to be democracy based on the rule of law then citizens and persons of conscience must treat equals equally, whether it be the poorest citizen or the most powerful politician. We are aware that there are many in India who are critical of Modi’s policies and whose right of dissent is being challenged, and their voices silenced or intimidated. Modi may be speaking on behalf of some kind of majority in India, but that does not invalidate opposition, even strenuous opposition. One crucial test of a true democracy is whether it protects the rights of minorities, especially when in tension with governing authorities. This is so whether the tension be with political minorities, religious minorities, ethnic minorities, or sexual minorities. A democracy only flourishes when divergent voices can be freely heard without fear of an official or populist backlash.

Q: You also mention the Silicon Valley Enterprises have a code of responsibility that they should be mindful of not being violated by Modi. Could you specify what this code of responsibility is?

I do not claim any special knowledge about this code of responsibility. Silicon Valley Enterprises have a great deal of influence and wealth, perhaps now in some respects greater than that possessed by any government. The New York Times Magazine did stories recently about Chinese factories making Apple products that were run as a sweat shops. Does Apple have the right or strength to insist on at least monitoring working conditions for those who make its products? The Saipan Sweat Shop case resulted in a settlement that required several clothing manufacturers to end the most egregious forms of labor abuse. Outsourcing labor is very convenient for many corporations, and not just for Silicon Valley Enterprises, but it is a prominent feature of Silicon Valley operations. So some of the questions we have about the “Digital India” initiative involve anticipated impacts on basic labor conditions in India that are presently poor and often abusive, but that do make labor costs of doing any kind of business in India more profitable. It is important that “Digital India” evolves in tandem with the protection and advancement of fundamental rights of all workers.

Q: How successful have these Silicon Valley Enterprises been so far in safeguarding their code of conduct while dealing with various governments?

So far, voluntary codes of conduct with respect to business practices, as has been promoted within the United Nations, have elicited pledges from corporations eager to uphold their reputations but the record of compliance ranges from mixed to poor.

Q: The US in general and the Obama administration in particular, have been accused of spying and abusing personal information of individuals by leaders and people of different countries. What has been your reaction to that? 

The pursuit of reasonable levels of state security has become indistinguishable with the Orwellian state.

This is a confusing area of governmental operations, not only for the United States, but for all countries. On the one side, especially given the current agenda of security threats, all governments engage in spying and espionage. On the other side, all states criminalize these activities that target its state’s secrets. This creates a situation of ethical and political confusion, making it difficult to distinguish heroes from villains. The United States as the world’s first global state with interests and involvements throughout the planet has the most extensive, sophisticated, and intrusive system of surveillance and espionage in all of history. As mentioned, the Snowden and Wikileaks disclosures, while viewed as criminal acts in the United States, divulged such excessive abuses that the U.S. Congress took some steps to curtail some of these intelligence operations. One of the reasons to be concerned about “Digital India” or “Digital America” is that the borderline between the pursuit of reasonable levels of state security has become almost indistinguishable from the Orwellian nightmare state of permanent war and total control over people. It is up to citizens within their own country and those with concern for the future of their region and the world to insist on scrutiny of intelligence operations to avoid their encroachment on individual and group rights.My colleagues who co-signed this petition are extremely concerned about this, and some of the signatories to the letter have expertise in this area. In criticizing India, we are not saying, nor do we believe, that the US record must not be scrutinized, protested, and reformed. Modi’s visit to the US provides an occasion for some of these shared issues to be discussed in a more global forum. But a focus on the severe dangers of US practices in the collection and use of digital information should never be interpreted to mean that scrutiny should be lessened in relation to what is, or may happen under Modi’s governmental authority.

Q: Most governments in the world today are committed to fight the “menace of terrorism.” In such a scenario do you think individual privacy and their fundamental rights are bound to be curtailed?

I think the evidence to date the answer worldwide is a resounding ‘yes.’ Partly this is the nature of threats posed by non-state actors that have no territorial address making everyone everywhere a potential suspect, which seems to serve as a rationalization for the expanded intelligence activities undertaken in the name of fighting against terrorism. This challenge of identifying and removing the threat before it materializes, also creates pressure for racial and ethnic profiling that gets translated in practice into arbitrary and discriminatory treatment of minorities, especially if perceived as anti-regime minorities.

A second level of explanation is associated with technological innovations that make the collection of meta-date feasible and economical. These capabilities are also enhanced by the development of drones and various forms of robotic activity, with even greater capabilities and intrusiveness on the technological horizon.

Because this transformed security and technological atmosphere endows the state with dangerous totalizing powers, it is more important than ever that the peoples of the world uphold freedom for themselves and others. It is only through the challenges of a petition such as ours that some hope exists for establishing a dynamic balance between state and society in the digital age. It is in this spirit that I joined with my Indian and other colleagues and friends as a signatory.



Here is the full statement issued by the academicians, and a partial list of signatories:

Prime Minister Narendra Modi’s visit to Silicon Valley highlights the role of a country that has contributed much to the growth and development of Silicon Valley industries, and builds on this legacy in extending American business collaboration and partnerships with India. However Indian entrepreneurial success also brings with it key responsibilities and obligations with regard to the forms of e-governance envisioned by ‘Digital India’.

We are concerned that the project’s potential for increased transparency in bureaucratic dealings with people is threatened by its lack of safeguards about privacy of information, and thus its potential for abuse. As it stands, ‘Digital India’ seems to ignore key questions raised in India by critics concerned about the collection of personal information and the near certainty that such digital systems will be used to enhance surveillance and repress the constitutionally-protected rights of citizens. These issues are being discussed energetically in public in India and abroad. Those who live and work in Silicon Valley have a particular responsibility to demand that the government of India factor these critical concerns into its planning for digital futures.

We acknowledge that Narendra Modi, as Prime Minister of a country that has contributed much to the growth and development of Silicon Valley industries, has the right to visit the United States, and to seek American business collaboration and partnerships with India. However, as educators who pay particular attention to history, we remind Mr. Modi’s audiences of the powerful reasons for him being denied the right to enter the US from 2005-2014, for there is still an active case in Indian courts that questions his role in the Gujarat violence of 2002 when 1,000 died. Modi’s first year in office as the Prime Minister of India includes well-publicized episodes of censorship and harassment of those critical of his policies, bans and restrictions on NGOs leading to a constriction of the space of civic engagement, ongoing violations of religious freedom, and a steady impingement on the independence of the judiciary.

Under Mr Modi’s tenure as prime minister, academic freedom is also at risk: foreign scholars have been denied entry to India to attend international conferences, there has been interference with the governance of top Indian universities and academic institutions such as the Tata Institute of Fundamental Research, the Indian Institutes of Technology and Nalanda University; as well as underqualified or incompetent key appointments made to the Indian Council of Historical Research, the Film and Television Institute of India, and the National Book Trust. A proposed bill to bring the Indian Institutes of Management under direct control of government is also worrisome. These alarming trends require that we, as educators, remain vigilant not only about modes of e-governance in India but about the political future of the country.

We urge those who lead Silicon Valley technology enterprises to be mindful of not violating their own codes of corporate responsibility when conducting business with a government which has, on several occasions already, demonstrated its disregard for human rights and civil liberties, as well as the autonomy of educational and cultural institutions.


Meena Alexander, Distinguished Professor of English, Hunter College and the Graduate Center, City University of New York

Arjun Appadurai, Paulette Goddard Professor of Media, Culture, and Communication, New York University

Anjali Arondekar, Associate Professor of Women’s Studies, UC Santa Cruz

Fredrick Asher, Professor of Art History and South Asian Studies, University of Minnesota

Paola Bacchetta, Associate Professor of Gender and Women’s Studies University of California, Berkeley

Sarada Balagopalan, Associate Professor of Childhood Studies, Rutgers University, Camden

Radhika Balakrishnan, Prof of Women’s and Gender Studies, Rutgers University

Shahzad Bashir, Professor of Religious Studies, Stanford University

Manu Bhagavan, Professor of History and Human Rights, Hunter College and the Graduate Center, The City University of New York

Mona Bhan Associate Professor of Sociology and Anthropology DePauw University

Srimati Basu, Professor of Gender and Women’s Studies, University of Kentucky

Prashant Bharadwaj, Associate Professor of Economics, University of California, San Diego

Nilanjana Bhattacharjya, Faculty Fellow, Barrett Honors College, Arizona State University

Nandini Bhattacharya, Professor of English, Texas A &M University, College- Station

Tithi Bhattacharya, Associate Professor of South Asian History, Purdue University

Amit R Baishya, Assistant Professor of English, University of Oklahoma

Akeel Bilgrami, Sidney Morgenbesser Professor of Philosophy and Director, South Asian Institute, Columbia University

Purnima Bose, Associate Professor, English and International Studies, Indiana University-Bloomington

Christopher Candland, Associate Professor of Political Science, Wellesley College

Paula Chakravartty, Associate Professor, Gallatin School, & Department of Media, Culture and Communication, New York University

Shefali Chandra, Associate Professor of South Asian History Washington University, St. Louis

S Charusheela, Associate Professor, School of Interdisciplinary Arts and Sciences, University of Washington, Bothell

Partha Chatterjee, Professor of Anthropology and South Asian Studies, Columbia University

Indrani Chatterjee Professor of History and South Asian Studies, University of Texas, Austin

Swati Chattopadhyay Professor History of Art and Architecture, University of California, Santa Barbara

Marty Chen, School of Public Policy, Harvard Kennedy School and Affiliated Professor, Harvard Graduate School of Design

Rohit Chopra, Associate Professor of Communication, Santa Clara University

Elora Chowdhury Associate Professor & Chair, Women’s and Gender Studies, University of Massachusetts, Boston

E Valentine Daniel, Professor of Anthropology, Colombia University

Monisha Das Gupta, Associate Professor of Ethnic Studies and Women’s Studies, University of Hawaii, Manoa

Jigna Desai, Professor of Gender, Women, and Sexuality Studies, University of Minnesota

Pawan Dhingra, Professor of Sociology, Tufts University

Wendy Doniger, Professor of the History of Religions, University of Chicago

Richard Falk, Professor of International Law Emeritus, Princeton University

Bishnupriya Ghosh, Professor of English University of California, Santa Barbara

Huma Ahmed-Ghosh, Professor and Chair of Women’s Studies, San Diego State University

Durba Ghosh, Associate Professor of History, Cornell University

Sumanth Gopinath, Associate Professor of Music Theory, School of Music, University of Minnesota

Nitin Govil, Associate Professor of Cinema & Media Studies, University of Southern California

Paul Greenough, Professor of History and Community and Behavioral Health and Director, South Asian Studies Program, University of Iowa

Inderpal Grewal, Professor of South Asian Studies, Yale University

Sumit Guha, Frances Higginbotham Nalle Centennial Professor of History, University of Texas, Austin

Thomas Blom Hansen, Professor of Anthropology and Director of the Center for South Asia, Stanford University

Syed Akbar Hyder, Associate Professor of South Asian Studies, University of Texas, Austin

Nalini Iyer, Professor of English, Seattle University

Priya Jaikumar, Associate Professor of Cinema and Media Studies, University of Southern California

Pranav Jani, Associate Professor of English, Ohio State University

Sheila Jasanoff, Professor of Science and Technology Studies, Harvard University, John F Kennedy School of Government

Arun W Jones, Associate Professor, Candler School of Theology, Emory University

May Joseph, Professor of Social Science, Pratt Institute

Priya Joshi, Associate Professor of English and Associate Director, Center for the Humanities, Temple University

Sampath Kannan, Henry Salvatore Professor of Computer and Information Science, University of Pennsylvania

Suvir Kaul, A M Rosenthal Professor of English, University of Pennsylvania Waqas Khwaja, Professor of English, Agnes Scott College

Naveeda Khan, Associate Professor of Anthropology, Johns Hopkins University

Nyla Ali Khan, Visiting Professor of Women’s Studies, University of Oklahoma, Norman

Satish Kolluri, Associate Professor of Communications, Pace University

Ruby Lal, Professor of Middle East and South Asian Studies, Emory University

Sarah Lamb, Professor of Anthropology and Head of the Division of Social Sciences, Brandeis University; Co-Chair of South Asian Studies

Karen Leonard, Professor of Anthropology, Emeritus, University of California, Irvine

David Lelyveld, Professor of History, Emeritus, William Paterson University

Jinee Lokaneeta, Associate Professor of Political Science and International Relations, Drew University

Ania Loomba, Catherine Bryson Professor of English, University of Pennsylvania

David Ludden, Professor of History, New York University

Ritty Lukose, Associate Professor of Anthropology, Gender and Sexuality Studies, and South Asian Studies, the Gallatin School, New York University

Sudhir Mahadevan Assistant Professor of Film Studies, Comparative Literature, Cinema and Media, University of Washington, Seattle

Tayyab Mahmud, Professor of Law and Director, Center for Global Justice Seattle University School of Law

Sunaina Maira, Professor of Asian American Studies, University of California, Davis

Bakirathi Mani, Associate Professor of English Literature, Swarthmore College

Rebecca J. Manring, Associate Professor of India Studies and Religious Studies Indiana University-Bloomington

Monika Mehta, Associate Professor, Department of English, Binghamton University

Jisha Menon, Assistant Professor of Theatre and Performance Studies, Stanford University

Kalyani Devaki Menon, Associate Professor of Religious Studies, DePaul University

Sally Engle Merry, Silver Professor of Anthropology, New York University

Raza Mir, Professor of Management, Cotsakos College of Business, William Paterson University

Deepti Misri, Associate Professor of Women and Gender Studies University of Colorado, Boulder

Chandra Talpade Mohanty, Chair and Distinguished Professor of Women’s & Gender Studies, and Dean’s Professor of Humanities, Syracuse University

Satya P Mohanty, Professor of English, Cornell University

Megan Moodie, Associate Professor of Anthropology, University of California, Santa Cruz

Projit B Mukharji, Martin Meyerson Assistant Professor in Interdisciplinary Studies, History & Sociology of Science, University of Pennsylvania

Madhavi Murty, Assistant Professor of Feminist Studies, University of California, Santa Cruz

Vijaya Nagarajan, Associate Professor of Theology & Religious Studies, Program in Environmental Studies, University of San Francisco

Gyanendra Pandey, Arts and Sciences Distinguished Professor of History, Emory University

Carla Petievich, Visiting Professor of South Asian Studies, University of Texas, Austin

Sheldon Pollock, Professor of South Asian Studies, Columbia University Kavita Philip, Associate Professor of History, University of California, Irvine

Vijay Prashad, George and Martha Kellner Chair of South Asian History, Trinity College

Jasbir K Puar, Associate Professor of Women’s and Gender Studies, Rutgers University

Balakrishnan Rajagopal, Professor of Law and Development, Department of Urban Studies and Planning, Massachusetts Institute of Technology

R Radhakrishnan, Chancellor’s Professor of English and Comparative Literature, University of California, Irvine

Gloria Raheja, Professor of Anthropology, University of Minnesota

Junaid Rana, Associate Professor of Asian American Studies, University of Illinois, Champaign-Urbana

Anupama Rao, Professor of Anthropology, Barnard College

Velcheru Narayana Rao, Distinguished Visiting Professor of Middle Eastern and South Asian Studies, Emory University

Kasturi Ray, Associate Professor of Women and Gender Studies/Co-Director, South Asian Studies, San Francisco State University

M V Ramana, Program on Science and Global Security, Princeton University Sumathi Ramaswamy, Professor of History, Duke University

Chandan Reddy, Associate Professor of English, University of Washington, Seattle

Gayatri Reddy, Associate Professor of Women’s Studies, University of Illinois, Chicago

Parama Roy, Professor of English, University of California, Davis

Sharmila Rudrappa, Associate Professor of Sociology, University of Texas at Austin

G S Sahota, Assistant Professor of Literature, University of California, Santa Cruz

Yasmin Saikia, Hardt-Nickachos Chair in Peace Studies & Professor of History, Center for the Study of Religion and Conflict, Arizona State University

Arun Saldanha, Associate Professor of Geography, Environment and Society University of Minnesota

Juned Shaikh, Assistant Professor of History, University of California, Santa Cruz

Nitasha Tamar Sharma, Charles Deering McCormick Professor of Teaching Excellence and Associate Professor of African American Studies and Asian American Studies, Northwestern University

Elora Shehabuddin, Associate Professor of Humanities and Political Science, Rice University

Bhaskar Sarkar, Associate Professor of Film and Media Studies, University of California, Santa Barbara

Priya Satia, Associate Professor of History, Stanford University

Aradhana Sharma, Associate Professor of Anthropology, Wesleyan University

Snehal Shinghavi, Associate Professor of English and South Asian Studies, University of Texas, Austin

Ajay Skaria, Professor of History, University of Minnesota

Shalini Shankar, Chair and Associate Professor of Asian American Studies, Northwestern University

S Shankar, Professor of English, University of Hawai’i at Mānoa Amritjit Singh, Langston Hughes Professor of English, Ohio University

Mytheli Sreenivas, Associate Professor of History and Women’s, Gender, and Sexuality Studies, Ohio State University

Rajini Srikanth, Professor, English, University of Massachusetts Boston Nidhi Srinivas, Associate Professor of Nonprofit Management, The New School

Ajantha Subramanian, Professor of Anthropology and South Asian Studies, Harvard University

Banu Subramaniam, Professor, Women, Gender, Sexuality Studies, University of Massachusetts, Amherst

Kaushik Sunder Rajan, Associate Professor of Anthropology, University of Chicago

Raja Swamy, Assistant Professor of Anthropology, University of Tennessee Tariq Thachil, Assistant Professor of Political Science, Yale University

Ashwini Tambe, Associate Professor of Women’s Studies, University of Maryland, College-Park

Vamsi Vakulabharanam, Associate Professor of Economics, University of Massachusetts, Amherst

Jyotnsa Vaid, Professor of Psychology, Texas A&M University

Sylvia Vatuk, Professor of Anthropology, Emeritus, University of Illinois, Chicago

Kamala Visweswaran, Professor of Ethnic Studies, University of California, San Diego

Kalindi Vora, Associate Professor of Ethnic Studies, University of California, San Diego

Bonnie Zare, Professor of Gender & Women’s Studies, University of Wyoming

The Nuclear Challenge (10): Seventy Years After Hiroshima & Nagasaki: Against Binaries

10 Sep

[Prefatory Note: This is the tenth, and mercifully the last, in this series of posts prompted by the 70th observance of the atomic attacks in 1945. The intention has been to explore several of the more important dimensions of what is called here ‘nuclearism,’ the securitization of nuclear weaponry in the face of international law, international morality, and simple common sense, and what can and should be done to achieve desecuritization of such weaponry of mass destruction, reviewing the stubborn adherence to nuclearism by the nuclear nine, the marginalization of the UN with respect to disarmament and denuclearization, and the rise and fall of antinuclear activism in civil society. Hopefully, the time will come when a less gloomy depiction of the nuclear challenge can be made by some future blog practitioner. This text is a slightly revised version of what was initially posted, written in grateful response to comments received.]


There have been a variety of philosophical assaults on either/or thinking, perhaps most notably flowing from the deconstructionist pen of Jacques Derrida. In more policy related contexts, the debate about dichotomizing gender has featured two sets of arguments: first the contention that it is important to distinguish lesbians, gays, bisexuals, and transgender people, hence the LGBT designation of sexual ‘otherness,’ which enriches the either/or-ness of the reigning male/female gender binary. Identifications of sexuality also cuts against the grain of the dominant heterosexual or straight template, and is further contested by ongoing debates surrounding the societal, legal, and conceptual legitimacy of ‘same sex marriages.’


The New York Times columnist, Charles Blow, pushes the sexual identity envelope further by developing the case for ‘fluidity’ of preferences, that is, neither purely this or that. He personalizes the issue, indicating that he generally is attracted to women, but on occasion might also be attracted to men, which because the feelings of attraction are greater for women than men, it is not accurate to define himself as ‘bisexual.’ Such a blurring of boundaries corresponds with the actuality of his feelings that even cut across supposedly liberating socially constructed categories as LGBT is meant to be. [Sept 7, 2015] The point being that the biopolitical reality of life often does not divide neatly into binary categories, and when we address the issue as one of upholding societal norms by enacting laws disciplining sexual limits, adverse social, political, and psychological self-alienation and arbitrary distinctions follow. This encroaches upon our freedoms in unfortunate, often unconscious, ways, leading many individuals to stay in the closet to hide their true feelings or be open and face subtle punitive consequences. Or, at best, individuals conclude that their failure to fit their feelings into a single box is somehow ‘abnormal.’ Relaxing traditional roles of state, church, and society in policing politically correct identities is one of the few areas in which freedom in American can be said to have expanded in the last couple of decades, and this, largely due to the transcendence of gender and sexual binaries thanks to robust civil society activism that cut against the grain of majority sentiment.



Perhaps, the most blatant of all binaries bearing on nuclear weapons is between ‘good’ and ‘evil’ nuclear weapons states, which immediately reminds us of Mahmood Mamdani’s devastating critique of the distinction between ‘good’ and ‘bad’ Muslims. [See Mamdani, Good Muslim, Bad Muslim: America, the Cold War, and the Roots of Terror (2005)] The United States and its allies regard themselves as ‘good’ nuclear weapons states that the world has no reason to worry about while Iran, North Korea, and Pakistan are ‘evil,’ or at best ‘irresponsible’ or ‘insecure’ states that should if at all possible be disallowed to acquire nuclear weapons. It is this primary binary that provides the moral/political disguised infrastructure of NPT treaty regime, which when established was confined to the P5 of the UN Security Council, which while not conceived of as ‘good’ by the West were at least not part of ‘the axis of evil’ depicted by George W. Bush during his presidency.


In this series on the nuclear challenge as of 2015, I have myself succumbed to the ‘binary temptation’ in at least two respects—distinguishing arms control from disarmament, and separating nuclear disarmament from conventional disarmament. Relying on binaries can contribute to a certain clarity of analysis, leading I believe to useful political discourse, but it is also misleading unless qualified and transcended. Dichotomizing choice and consequences in these ways can be especially useful in pointing out weaknesses and pitfalls in ‘politically correct’ methods of solving societal problems. In this spirit, I continue to believe it is illuminating to insist on the critical difference between complete nuclear disarmament as transformative of the security scene as now embedded in world order and arms control as a series of more or less helpful reformist moves that stabilize and manage the role of nuclear weaponry in contemporary security structures. These arms control moves are made without posing any challenge to the fundamental distribution of power and authority in the world, and tend to make such a challenge appear less urgent, and even of questionable benefit.

From this perspective, then, a critique of the NPT regime as the preeminent stabilizing structure in relation to nuclearism seems justified. It provides the basis for setting forth an argument that the NPT approach is antagonistic, rather than complementary to denuclearization and disarmament. This is contrary to the way the NPT regime is generally explained and affirmed, which is as step toward achieving nuclear disarmament, and an indispensable place holding measure to reduce the risks of nuclear war. It is true that inhibiting the spread of nuclear weaponry seems to be in the spirit of what might be described as horizontal denuclearization, although even this limited assertion is not without controversy. The recently deceased Kenneth Waltz with impeccable logical consistency seemed to believe so deeply in rational decision making as embedded in the doctrine of deterrence that he favored the spread of nuclear weapons to additional countries because it would tend to make governments more cautious, and hence nuclear war less likely. Others, including myself, are more ambivalent about such an out of the box position, worrying about any further spread of the bomb, but thinking that only when there is a sense of a loss of control in the capitals of the nuclear nine will there arise a sufficient interest in denuclearization as a genuine political project (as distinct from more or less sincere rhetorical posturing). Obama’s Prague speech in 2009 still seems sincere as of the time of its delivery, but we need to notice that it lived and died as rhetoric because it lacked legs, that is, the rhetoric was never converted into a political project. In contrast, the NPT is definitely a political project and enjoys strong geopolitical support.


The policy emphasis on horizontal denuclearization has the sometimes intended and sometimes unintended effect of shifting public attention away from the greater problematique of promoting vertical declearization, that is, inducing the nuclear weapons states to enter a diplomatic process that would finish with zero nuclear weapons in their military arsenals. Again such a distinction, while useful for some purposes, employs the artificial binary of horizontal and vertical, and misses the nuance actuality of hybridity and interactivity, or what Blow describes as ‘fluidity’ or others have been delimiting by dwelling on the fifty shades of gray positioned between the black and white of conventional thinking. Decuclearization for each of the nuclear nine raises different issues depending on the outlook of their leadership, the political context, and the ease of making alternative non-nuclear security arrangements, as well as their interaction with one another and with neighboring states.


Perhaps, the most salient false dichotomy of all is between ‘nuclear weapons states’ and ‘non-nuclear weapons states.’ When countries have the enrichment facilities and materials, as well as the technical knowhow, they possess a breakout capacity that could materialize in a matter of months, or maybe already exists as a result of a secret program (as was the case with Israel). Yet without acquiring and exploding a bomb such states retain their status as non-nuclear. Israel is treated as belonging to the nuclear nine because its possession of the weaponry has been documented convincingly, although it has never officially admitted its possession of the weaponry, and keeps vindictively punishing Mordechai Vanunu because he exposed the truth about Israel’s nuclear program. North Korea may not have assembled a bomb when it was charged with violating NPT constraints. Germany and Japan, and perhaps a few other countries, are latent or threshold nuclear states, although their overt posture is one of being ‘non-nuclear.’ The fluidity of reality makes the binary classification, at best, a first approximation. At worst, it creates a deceptive distance between states that have nuclear weapons and those that do not presently possess the weaponry, but could do so in a short time. Or between those that pretend not to have the weapon but actually have it and those that pretend to have it but do not have it. The binary classification ignores the many differences with respect to nuclear weapons and doctrines surrounding use of the nuclear nine, but also the many nuances of technical and political proximity to nuclearism of non-nuclear states. Some states have allowed deployments of nuclear weapons on their territory, others have prohibited ships carrying nuclear weapons from entering their ports for even a short visit.



The situation becomes even more complicated if inquiry is extended to secondary political effects. It has been argued that vertical denuclearization undertaken by the United States would likely lead to horizontal nuclearization on the part of Japan and South Korea. Contrariwise, it is reasoned in strategic circles that the nuclearization of countries in Asia and the Middle East could induce vertical denuclearization on a systemic basis to avoid the instabilities and raised risks of a growing number of hands on the nuclear trigger, and to clear the way for regional securitization based on American conventional military dominance. Worries about continued proliferation combined with the realization that American military power would become more usable and effective in a world without nuclear weapons even led such realist mainstays as George Shultz, Henry Kissinger, William Perry, and Sam Nunn to support nuclear disarmament in the normally militarist pages of the Wall Street Journal. [“A World Free of Nuclear Weapons,” Wall Street Journal, Jan 4, 2007.]


A similar line of reasoning applies to the relationship between nuclear disarmament and conventional disarmament. Focusing on nuclear disarmament as a distinct undertaking avoids difficult issues of whether disarmament rests on a premise of pacifism and thus would be imprudent in view of centuries of political consciousness supporting the right and practical necessity of political communities acting in self-defense to uphold their security against external threats. This logic of a collective right to bear arms underlies the modern system of state-centric world order that conceives of security within bounded territorial entities as integrally linked to the war system.


At the same time, as discussed in relation to Gorbachev’s vision of nuclear disarmament discussed in The Nuclear Challenge (3), it is unrealistic to think of deep disarmament without introducing demilitarization into the process. Otherwise as Gorbachev points out, governments will be reluctant to take the last steps in a denuclearizing process if they understand that at the zero point for nuclear weapons, the world will be confronted by American military dominance, already prefigured by the U.S. government spending almost as much to maintain and develop its military machine as the entire rest of the world. For meaningful commentary it is necessary to view different types of disarmament as complements rather than as alternatives, and not to ignore different levels of interactivity. Although both Gorbachev and the Shultz group advocate nuclear disarmament, their geopolitical agendas are at opposite ends of the political spectrum. Gorbachev seeks a demilitarized world of equally secure sovereign states whereas the Shultz group favors stabilizing American military hegemony.


One of the most frequently identified binary is that between nuclear weapons and nuclear energy or power. This binary is built into the NPT regime, giving non-nuclear states reassurances in Article IV that by foregoing the bomb they will not be denied the supposed benefits of nuclear energy, and that they can look forward to a denuclearized world as the nuclear weapons states accepted a legal duty to negotiate disarmament in Article VI. And then in Article X parties to the NPT are given a right to withdraw after giving three months notice in response to security imperatives, a right that can be overridden by the geopolitical insistence on non-acquisition of the weaponry as with Iran. The reality of the nuclear world subverts such a binary in a number of ways. If a nuclear energy program is established it creates conditions that makes it easier to cross the weapons threshold by having the capability to produce enriched uranium or plutonium and the technical knowhow to produce a nuclear warhead. Also, the kind of nuclear accidents that occurred at Chernobyl and Fukushima suggest that nuclear facilities are nuclear time bombs awaiting an igniting natural disaster or human error. Such nuclear power plants are also could be a priority target for unscrupulous political extremists. These nuclear facilities pose unknown risks of devastation that could terrorize millions of people, and spread intense fear across the globe following the release of large amounts of intense radiation. Vagaries of air currents might determine whether communities become afflicted or not.


And then there are issues of geopolitical fallout stemming from managing the NPT regime. Instead of the NPT contributing to stability, its maintenance can provide the rationale for recourse to threats and uses of aggressive force. The 2003 invasion and occupation of Iraq was mainly justified as a NPT enforcement operation as was the imposition of damaging international sanctions on Iran coupled with frequent reiterations of the military option by American and Israeli leaders. In effect, the alleged need to prevent certain instances of unwanted proliferation is providing political actors, especially the United States, with geopolitical justifications for costly unlawful wars that displace millions and disrupt existing political arrangements. Characterizing nuclear energy as ‘peaceful’ does not seem compatible with the spirit or substance of a fully denuclearized world.


There is an even deeper divide that needs to be bridged conceptually and practically. Can drastic forms of demilitarization reliably occur without also addressing poverty and gross disparities of individual and collective existence? And can such socio-economic issues be resolved without a combination of life style adjustments and the dismantling of neoliberal capitalism as the ideological linchpin of economic globalization? And are any of these radical changes worth contemplating without the inclusion on the policy agenda of global warming and threats to biodiversity? And on and on.


What I favor, in effect, is retaining binaries to clear up basic choices that can be better understood without the complexities and subtleties of fluidity, but also moving toward a second level of interpretation that is immersed in the existential realities of the lifeworld. On this level, evaluation would be contextual and configurative, and not be pre-judged or appraised by reference to a reductive binary. From such angles, the NPT would be seen as both helpful and harmful, making its assessment change with time and context. The NPT may have, on balance, been a constructive step in 1968 when it was possible to believe that inhibiting proliferation would give nuclear disarmament time and space to establish a more favorable climate for negotiations. By way of comparison, in 2015 the world possesses overwhelming evidence suggesting the disinclination of the nuclear weapons states to consider disarmament as a serious policy option. Such an understanding may shift the balance sufficiently to make it now more constructive to repudiate, or at least challenge the NPT regime. Such an altered approach seems quite reasonable in light of the militarist and unlawful tactics of implementation employed to victimize the peoples of Iraq and Iran.


The question of how to think about nuclear issues is itself daunting, yet crucial. One way to go about it is the recognition of distinct discourses with some sensitivity to overlaps between binary and contextual or configurative forms of analysis as discussed above. Among the substantive discourses that seem particularly useful for the promotion of denuclearization and disarmament the following can be commended: international relations; geopolitics; international law; international morality; denuclearization; demilitarization; securitization. Obviously, the path to nuclear zero is long with many twists and turns, and where it will lead remains unknown. What is known is that the struggle for nuclear disarmament, denuclearization, and demilitarization bears heavily on the destinies of the human species, and we each have a responsibility to become a participant rather than a spectator.

The Nuclear Challenge (9): Relying on International Law: Nuclear Zero Litigation

8 Sep


The Nuclear Challenge (9): 70 Years After Hiroshima and Nagasaki: Nuclear Zero Litigation


[Prefatory Note: Two prior posts, The Nuclear Challenge (1) & (2) address indirectly the efforts of international law and lawyers to highlight the clash between international law and nuclear weapons. In this post I combine a focus on international law with a continuation of the inquiry into the role of civil society activism that was the theme of The Nuclear Challenge (8). Here I attempt a more concrete gaze at the promise and limitations of international law as a policy instrument available to governments and citizens committed to the goal of a world without nuclear weapons. The Nuclear Zero Lawsuits filed by the Republic of the Marshall Islands on April 24, 2014 provide an occasion for such an appraisal. This litigation reflects opposed counter-currents. It is both an encounter with geopolitical nuclearism and a mode of global consciousness-raising at a time of dangerous complacency about the threats posed by the continuing possession and deployment of nuclear weaponry, as well as the warping of the security mind by supposing that human security can ever be ethically and effectively safeguarded by current strategic thinking surrounding the varying roles assigned to this weaponry by the military planners and political leaders of the nine nuclear weapons states. The text below contains some revisions and corrections of the original post, mainly reflecting my attempt to take account of constructive feedback.]


From the time of the atomic explosions at the end of World War II there have been two contradictory sets of tendencies at work: the repudiation of the weaponry and its contemplated uses as ultimate criminality and the secret feverish refinement of the weaponry to enhance its precision, destructive effects, battlefield capabilities, and delivery systems. To date, the latter tendency has prevailed, but so far, contrary to the worst fears, avoiding uses (but not without unlawful threats to use, think tank proposals for use, and high alert international crises containing unseemly dangers of nuclear war).


From the beginning international law was a tool relied upon by those who challenged the legitimacy of both the atomic attacks themselves and the later developments and doctrines associated with the weaponry and its central role in the superpower rivalry at the core of the Cold War. In the immediate aftermath of the atomic attacks on Japan, there were many governmental pronouncements in the West about nuclear disarmament as an imperative of human survival, and it was widely assumed in the public that international law through the medium of a negotiated treaty containing procedures to assure compliance by all parties was the correct approach to unconditional declearization and principled repudiation of the weaponry, and this remains the consensus view of pro-disarmers at present.


Especially the UN General Assembly from the outset of the nuclear age was a political venue within which the criminality of the weaponry was confirmed, although gradually the impact of nuclear geopolitics moved disarmament off-stage and shifted policy attention to the supposedly more realistic goals of managing the nonproliferation regime and minimizing the spread of the weaponry. As discussed in previous posts, whatever political energy for a world without nuclear weaponry existed has been transferred over time to a variety of civil society venues. During the Cold War, Europe was the most likely military theater for a nuclear confrontation, accounting for a variety of anti-nuclear movements and initiatives. The Campaign for Nuclear Disarmament (CND) in Britain being the best known, but also the German Green Party gained anti-nuclear prominence. Since the end of the Cold War the most activist anti-nuclearism has been associated with advocacy and educational efforts that were oriented around the presumed authoritativeness of international law as reinforced by political commitment and international morality in two major respects:

                        –the unconditional unlawfulness of the weaponry with respect to threat, use, deployment, possession, and development;

                        –a reliance on a treaty-making approach to achieve nuclear disarmament by carefully calibrated stages, and subject to monitoring, verification, compliance, and dispute settlement procedures, and containing robust response mechanisms in the event of non-compliance or cheating.

In other words, both the case against all facets of nuclearism as presently operative and the framework proposed for its elimination through a process of total denuclearization are both guided and governed by international law.


At the same time, there are difficulties with an uncritical acceptance of this centrality of international law. First, the evidence is strong that the nuclear weapons states, above all the United States, will not override its security policies as related to nuclear weapons or other vital concerns of foreign policy out of deference to international law. This official lawlessness exists even in the face of assessments of international law enjoying the strong backing of the International Court of Justice, the world’s highest judicial body. The 1996 Advisory Opinion of the ICJ reached two conclusions that should have led to operational adjustments in the announced doctrine and political behavior of governments possessing nuclear weapons: (1) nuclear weapons were only lawfully usable, if ever, when the survival of the state was credibly at issue; and (2) a unanimous views among the judges that the nuclear powers had a good faith obligation to negotiate both an end to the arms race and a disarmament plan, and what is more, and should not be overlooked, that these governments had “an bring to a conclusion negotiations leading to nuclear disarmament.”


True, this was an advisory opinion, not formally binding on the parties, leading to diverse views as to legal weight of the findings. Also it was the case that the ICJ judges were badly divided, with a slim majority (and even that resting on the President’s second casting vote to break a tie) favoring the view of conditional unlawfulness of the weaponry. Actually, the unlawfulness side was stronger than it seemed by looking only at the vote on the central finding of severely qualified legality as three of the ICJ judges were so committed to unconditional unlawfulness that they refused to support the majority conclusion, which was deliberately made consistent with a very narrowly construed deterrence doctrine. What is more notable is that the nuclear weapons states paid not the slightest operational attention to what these most distinguished judges from the world’s main legal system had determined in the only systematic international review of the arguments about legality that had gone on since the first atomic explosion in wartime (a persuasive national review was set by a Japanese court in the important Shimoda case) . This disdain for the relevance of international law was apparent even before the ICJ issued its advisory opinion, taking the form of the vigorous opposition led by the United States to the General Assembly referral of the question of legality to the World Court, insisting, in effect, that a judicial interpretation of international law was not relevant to the status of nuclear weapons. The substantive claim being made was that the U.S. Government was as it was doing all that it could reasonably do to reduce risks of nuclear war, through arms control, nonproliferation, and deployment policies. Any more foundational judgment was thus deemed inappropriate and misleading. Further, that the ICJ was a judicial body not equipped to evaluate security policy, and thus at best relying on ‘moral’ and ‘political’ considerations couched in legal language.


The same line of reasoning was relevant with respect to the second conclusion relating to the NPT obligation to negotiate in good faith and with an end in view. What was already being done supposedly fulfilled the Article VI obligation of the nuclear weapons states, and the Court had neither the information or the expert competence to pronounce otherwise, although the judges unanimously acted as if they did have the needed knowledge, and hence an institutional responsibility to pronounce their views as to the legality of nuclear weaponry and the requirements of compliance with the NPT.


I think a clear picture evolves. The nuclear weapons states accord primacy to geopolitical policies when in tension with international law, especially on crucial issues bearing on the conduct of warfare and the shaping of peacetime security policies. The geopolitical consensus accepted by all nine weapons states is to disregard or sideline the purported relevance of international law. In reaction to this consensus there is some huffing and puffing by nonnuclear governments, but no political will to mount a challenge on even such a tangential issue as non-compliance with the Article VI obligation, a clear material breach of the NPT. This combination of geopolitical nuclearism and passivity by the members of international society other than ‘the nuclear nine’ has meant that it is up to each of this latter group of states, as a matter of sovereign discretion, to determine what its policies on deployment, threat, and use will be, and whether it will agree or not to specific arms control measures. And because government security policies are treated as the most carefully guarded of all state secrets, there is no meaningful democratic participation, including even by most elected or appointed government officials, and neither knowledge nor leverage by the citizenry. Every government possessing nuclear weapons is authoritarian, with only the head of state having the non-reviewable and unaccountable authority to decide whether and when to use nuclear weaponry against which targets and with what magnitudes of destructive power.


Left to carry on the campaign to rid humanity of the nuclear menace are the disparate and somewhat incoherent forces of civil society as receiving varying degrees of encouragement from non-nuclear states. At times of global crisis, as occurred periodically during the Cold War, these forces from below can be aroused to sound a loud alarm that has some resonance at the political center, but mainly this kind of societal pressure demands prudence and restraint rather than compliance with international law, and gains satisfaction from tiny incremental moves taken to step back from the nuclear precipice. With the decline of anxieties about possible confrontations between major nuclear weapons states after the end of the Cold War, there is mostly evident a mainstream law emphasis on the ‘enforcement’ of the NPT directed at non-nuclear states perceived as seeking to acquire nuclear weapons.


Behind these developments, off to one side, are persevering efforts to insist on the unlawfulness of the weaponry and on gaining support for using the existing legal machinery of states and world society to push harder on the arguments of illegality. As has been pointed out, such efforts even if successful, are unlikely to make the steep climb up the geopolitical mountains on top of which are located the nuclear weapons arsenals. Yet that does not make the struggle to empower law with respect to nuclear weaponry without meaning or irrelevant to a survivable future. The outcome of the ICJ Advisory Opinion on legality, despite the unwelcome outcome of being defiantly deflected by the nuclear weapons states, did have the positive effects of strengthening the political will and morale of anti-nuclear activists and their organizations throughout the world, and even making non-nuclear governments more aware that the nuclear nine were not fulfilling their part of the NPT bargain.


One notable expression of this heightened political will was the initiation of litigation in ICJ and American federal courts by the Republic of the Marshall Islands (RMI) based on the alleged treaty failure to implement Article VI of the NPT by the nuclear weapons states that are parties to the treaty, and by customary international law for India, Pakistan, Israel, and North Korea (having withdrawn from the treaty in 2003) that are not. Such litigation was grounded in the unanimous conclusion of the ICJ that good faith obligation to negotiate a nuclear disarmament arrangement that needed to be brought to a conclusion. In the 19 years since the Advisory Opinion there have been persuasive confirmations that the nuclear nine were not at all disposed to seek nuclear disarmament, making it highly reasonable for any non-nuclear party to the NPT to mount such a legal argument based on non-compliance, and indeed material breach of treat obligations.


And what country, other than Japan, had a greater moral and political entitlement to do so than the Marshall Islands? RMI lacks a legal entitlement due to Compact of Free Association, and that creates a certain awkwardness in putting forward the allegations of non-compliance with the disarmament obligations of Article VI as the real motivation arising from the legacy, harm, and memories of the nuclear testing cannot be relied upon it putting forward its legal arguments. In an important respect the past matters less than the future, and the only reason to invoke RMI vicitimization as a result of the testing is to create a stronger atmosphere of receptivity in the International Court of Justice in deliberating on the subtleties of the jurisdictional controversy and to pay a deserved homage to those from RMI who paid such heavy costs due to the harm inflicted by the tests.


This archipelago of 1156 islands and islets occupying 750,000 square miles of ocean space in the Pacific was taken over from Japan by the United States after World War II, and formally given the status of Trust Territory of the Pacific Islands (a political entity that included several other Pacific island groups) by the United Nations in 1947. The tiny population of 68,480 lives on 29 coral atolls. In a most dramatic betrayal of trust imaginable the United States used the Marshall Islands as the principal test site without consulting the indigenous population or seeking their consent. 67 atmospheric nuclear tests were conducted between 1946 and 1958. The largest was code named Castle Bravo and had an explosive magnitude of 15 megatons, which is 1000 times the force of the bomb was dropped on Hiroshima. As a result of this nuclear testing the people of the Marshall Islands have endured a variety of severe harms, ranging from forced evacuation and displacement, radiation sickness that continues to be prevalent, and environmental damage that appears to be permanent. There is a mechanism that has allowed Marshall Islanders to gain compensation from the United States for harm that can be persuasively attributed to the nuclear tests, but at the cost of waiving the pursuit of claims elsewhere as a result of the Compact of Free Association linking RMI to the United States. This mechanism continues to operate as a consequence of the fact that the effects of exposure to high doses of radiation may now result in cancer or genetic defects for many years.


The legal theory behind the case rests on the legal proposition that the Marshall Islands in common with all other parties to the NPT have a legal right to insist on compliance with Article VI. This provides RMI with a basis for arguing that a legal dispute exists with the nuclear weapons states emanating from this alleged treaty breach. RMI contends also as with every state in the world that if a nuclear war occurs, it would be severely harmed as the detrimental effects would be global, impacting upon the security and wellbeing of the Marshall Islands, and indeed of all peoples living on the planet. For the case to be accepted for adjudication by the ICJ a majority of the 15 judges must agree that a ‘legal dispute’ exists between the complaining state and the states accused of being in breach. The wheels of international justice turn slowly, if at all, and it remains to be determined, and I can only hope that the legal team representing the RMI will convince enough of these judges sitting in The Hague to clear this high jurisdictional hurdle. Only then can the court proceed to hear arguments and render a judgment on the merits. This litigation before the ICJ if it goes forward will result in ‘a decision,’ which unlike the 1996 Advisory Opinion is obligatory, and can in theory be enforced by the Security Council acting under Article 94. Any enforcement attempt along these lines could be vetoed by one of the five permanent members, and almost certainly would be. The NPT gives states that are parties the legal option to bring a legal dispute before the ICJ, and every state in the world, including the four nuclear powers that are not parties to the NPT are allegedly also subject to its authority by way of customary international law, which may seem a stretch given the jurisprudential conservatism of the ICJ in the past. The legal reasoning supportive of this extension of customary international law is based on the proposition that the NPT has been so widely adhered to and so fundamental to world order that it has become binding whether or not a country is a party, that it is ‘a lawmaking treaty’ on matters vital to the wellbeing of humanity and that it is obligatory for the entire community of states.


This line of argument raises a complex jurisprudential issue for the ICJ as the legal reasoning goes against the earlier consensus that an attribute of national sovereignty is the option to remain outside of an international legal framework, and even to dissent from it. From the development of progressive international law, this litigation presents a great opportunity for the ICJ to align itself with the authority of international law in the area of war and peace, as well as with respect to  global security and human wellbeing in the nuclear age.


The companion case filed by the Marshall Islands in a Federal District Court resulted in a dismissal on February 3, 2015 resting on the highly questionable notion that the alleged damage to the Marshall Islands was too speculative to qualify as a legal interest that a court of law should adjudicate, and that the issue raised was, in any event, precluded by judicial review as a result of the Political Question Doctrine (PQD), which has led past courts to dismiss international law claims bearing on national security and foreign policy.


Such dismissals invoked separation of powers reasoning and regressively ignores the relevance of international law to the lawfulness of foreign policy, which occurred in stages since the initial formulations of PQD in a period when recourse to war was not covered by international law. Unfortunately, PQD has been interpreted by American courts to mean that such issues are not for the courts to decide, but are matters of foreign policy that should be resolved within the exclusive domain of the executive branch. Accordingly, the judiciary should not venture an assessment of this kind of challenge to security policy even if formulated by reference to a treaty obligation, which the U.S. Constitution explicitly avows as ‘the supreme law of the land.’ This dismissal of the RMI initiative has been appealed to the Court of Appeals of the Ninth Circuit in San Francisco for review and decision. The continuing invocation of PQD in cases of this kind is to restrict severely the prerogatives of the citizenry to ensure that their elected representatives uphold international law and accept the applicability of a global rule of law when it comes to foreign policy.


Whatever the eventual outcome of these parallel judicial initiatives, the cases have already had a significant civil society impact, which has been galvanized by the law suits, acting to raise public awareness of their potential importance. The Nuclear Age Peace Foundation has played a central role in this undertaking in the realm of public education. It has taken the lead in fashioning a consortium of more than 90 civil society organizations supportive of the litigation, and through its websites it has tracked the progress of the cases through the courts in a manner that is both educative and energizing. Whether this litigation can ignite the sort of transnational collaboration between governments and civil society organization in the manner that proved so successful in generating support for an anti-personnel land mines treaty and for the International Criminal Court remains to be seen. Such a positive outcome for an anti-nuclear grassroots and moderate government coalition can only be conjectured at this point, but such a result would be no more surprising than establishing the ICC over the objections of the world’s leading geopolitical actors. 


These law suits have also brought much wider and overdue attention to the nuclear exploitation of the Marshall Islanders, as well as admiration for the willingness of this tiny stressed and subordinated polity to put forward such a controversial legal argument, especially considering that their own security and economic viability is so linked to the good will of the United States embodied in a paternalistic ‘compact’ (Compact of Free Association with the United States) that entered into force as the trust status was superseded in 1988 when the Marshall Island became “a presidential republic in free association with the United States.” In tangible terms this has meant that the United States has accepted responsibility for the defense and protection of the Marshall Islands and for granting a range of economic subsidies, and in exchange retains use of a missile test site on Kwajalein Atoll, undoubtedly a reminder of the years when the island group was the principal site for developing new generations of nuclear weaponry.


It is pathetic that it has taken so many decades to mount this very limited legal challenge to nuclearism and that the challenge is being made by this small and vulnerable republic while the rest of the governments throughout the world continue to sit on their hands while nuclearism remains essentially unchallenged. To remove all doubts as to its future expectations, the U.S. Government has budgeted $1 trillion over the next thirty years to keep its superior nuclear capabilities up to date so as to ensure its continuing dominance of the outer frontiers of nuclear security strategy. We can only at this stage be thankful to the RMI for embarking on these nuclear lawsuits, and wish that the judicial bodies given this great opportunity to apply international law in a manner directly related to the wellbeing, and indeed the survival, of humanity, will respond appropriately.



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