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Koran Burning in Afghanistan: Mistake, Crime, and Metaphor

9 Mar


 

On February 20, 2012 several American soldiers, five having been identified as responsible at this point, took some Islamic writings including several copies of the Koran to a landfill on Bagram Air Base in Afghanistan where they were burned. As soon as Afghan workers on the scene realized that Korans were being burned, they recognized what was happening as an act of desecration, and launched an immediate protest. The protest spread rapidly throughout the country, and turned violent, producing at least 30 Afghan deaths, as well as five dead American soldiers that also produced many non-lethal casualties. The incident is under formal investigation by three distinct boards of inquiry: a U.S. military investigation with authority to recommend disciplinary action against the soldiers; a joint U.S./Afghan undertaking; and an Afghan investigation leading to recommendations by a council of religious figures.

 

The American governmental response has been apologetic in tone, but unconvincingly so. President Obama sent a letter of formal apology to the Afghan president, Hamid Karzai, expressing regret and explaining that the incident occurred due to carelessness rather than as a deliberate expression of Islamophobic desecration. Refusing to adopt even a mildly apologetic posture, a reactionary American backlash powerfully surfaced, complaining about Obama’s stance by an insistence that it was the Afghan government that owed the United States an apology given the loss of American lives and an outburst of violence that was totally inappropriate given the accidental nature of the provocation. The reactionary presidential candidate, Rick Santorum, expressed the more or less typical Republican reaction to the incident:  “I think the response need to be apologized for, by Mr. Karzai and the Afghan people, for attacking our men and women in uniform and reacting to this inadvertent mistake.” He added, “This is the real crime, not what our soldiers did.”

 

Obama, as usual in such situations seemed caught in the headlights of controversy, publicly justifying the apology as necessary “to save lives..and to make sure that our troops who are there right now are not placed in further danger.” Such a backhanded rationale leads to an ironic query: when does an ‘apology’ cease being an apology? Obama obviously wants to appease foreign anger while at the same time affirming his patriotic credentials. He is addressing contradictory audiences, and can only hope that Afghans are not listening when he offers his pragmatic reasons for sending the letter to Karzai. Yet to claim that an apology was necessary to save American lives is hardly a genuine way to express regret, which was the least that should have been done, and could have been properly joined with sentiments of bereavement associated with the American soldiers who were also victims of a misguided military intervention and occupation. In my view Obama needlessly lost ground with all constituencies. Maybe Hilary Clinton had a point during the 2008 campaign for the presidential nomination when she famously taunted Obama: “if you can’t stand the heat get out of the kitchen.”

 

What is baffling is Washington’s unlearning evident, which flies in the face of its claim that it had redesigned counterinsurgency warfare after the Vietnam experience, above all else, to exhibit sensitivity to a foreign culture that is the site of armed struggle for political ascendancy. Here the cultural insensitivity was monumental, especially if proper account is taken of earlier similar incidents. There were earlier fully publicized desecrations of the Koran that vividly demonstrated how intense a reaction would likely result from a repetition of such behavior. There was a huge outcry following disclosure that a Koran had flushed down a toilet at the Guantánamo Bay prison a few years ago. Somewhat later an American soldier in Iraq was found to have used a Koran for target practice, which provoked a storm of angry denunciations of the American role in the country.

 

And then there was the shocking spectacle of Rev. Terry Jones of the Dove World Outreach Center in Gainesville, Florida announcing to his tiny congregation that he would burn 200 Korans on the anniversary of 9/11 in 2010, an outrage despite its non-governmental character, which was finally successfully discouraged, at least temporarily. But on March 20, 2011 the determined Rev. Jones held a ‘trial of the Koran’ and found it guilty of crimes against humanity, and burned a Koran in the church sanctuary. The result in the Afghan city of Mazar-i-Sharif was an attack on the UN Assistance Mission, killing at least 30, including 7 UN workers, and injuring 150. Our man in Kabul, Hamid Karzai, called for the arrest of Jones, but such a request was ignored as perhaps it had to be under American law; the conduct of Rev. Jones was explained (away) as an expression of American freedom of religion that did not reflect official views.

One would have supposed that a halfway vigilant imperialism would have understood that any show of disrespect toward the Koran, whether public or private, and especially by occupying American soldiers, would strike a severe blow against the American role in Afghanistan. At least with American troops, such experience would have led to introducing the most rigorous means to train and discipline occupation forces accordingly. It is not an exaggeration to say that such displays of disrespect for the Koran are more serious setbacks for Washington than would be even dramatic defeats on the battlefield. Why? Because it so clearly discredits the American claim to be present in the country as a humanitarian benefactor respectful of Afghan cultural and religious values.

 

There is something deeply disturbing, and revealing, about this compulsive inability to show respect for the most sacred artifacts of a foreign civilization. The Koran is the holiest of scripture not only for Islam as the dominant religion of the country but also underpins the unity embedded in the wider cultural identity of the Afghan people. It is a far more potent symbol of Afghan unity than is the national flag or constitution of this otherwise most fragmented of countries, and possibly it is the only source of unity other than opposition to foreign occupation. Americans would themselves react furiously, and likely violently, were the Bible to be burned by foreign military personnel somehow present on national territory, but the truth is that the imperial mindset is utterly incapable of comprehending such a logic of reciprocity, or its ethical analogue, the golden rule. The opposed imperial logic has a different ethic: the wrongs that we do to others we occasionally will excuse as accidental, while being incapable of even imagining that others might dare to do them to us, and if they were stupid enough to do so, a righteous fury of vengeance would be appropriately unleashed.

 

Tom Friedman, whose arrogance is as boundless as the globalization he blandly celebrates, mimics Republicans by telling his readers that Afghan political and religious leaders have made themselves primarily at fault for their failure to protest strongly against “the killing of innocent Americans,” especially given the accidental nature of the Koran desecration and Obama apology. The liberal interpretation of the incident is only softer in tone than is the Santorum reactionary rant, and suggests an uncritical American consensus that is ready to fight war after war in distant countries without having the slightest pang of conscience or the wisdom to stand quietly before mirrors of self-criticism.

 

In an important sense, these American soldiers, including those who participated in this unfortunate incident, were fundamentally ‘innocent.’ They are themselves both participants and victims of an occupation of a foreign country that they and their leaders do not understand, a military mission that never have been attempted, and is proving as futile as those many previous Western attempts to domesticate Afghanistan by force of arms, a sorry story expertly chronicled in Deepak Tripathi’s illuminating book, Breeding Ground: Afghanistan and the Origins of Islamist Terrorism (Washington, DC; Potomac). Those who are most responsible for this crime, in my judgment, are those who initially mandated such a war a decade ago and now perpetuate it, and this includes the president and those who favored the war policies that have misguidedly led to a ten year military occupation of Afghanistan with little result except this upsurge of vitriolic anti-American sentiment and a severely torn country. The best that United States policy planners can hope for after inflicting such an ordeal is reaching a power-sharing deal negotiated with the Taliban, the original mortal enemy, which portends a political future for Afghanistan not at all to Washington’s liking, nor consoling to the majority of Afghans. After all those billions spent, lives lost, sacrificed, and misshaped, and devastation wrought there is nothing at the end but the slim hope of learning from defeat after the fact not to go abroad in search of foreign monsters. With the Iran war drums beating loudly, it seems like an idle fancy to suppose that the American political elite will seek the intensive rehab it needs to have any chance of recovering from this addictive militarism that brings suffering to others and defeat and decline to itself.

 

Of course, unleashing violence in response to desecration does make for a sorry spectacle, and reflects badly on the quality of religious leadership in Afghanistan. At the same time the call of the Afghan clerical leadership for an end to the American nighttime raids on Afghan homes and the insistence that Americans turn over the administration of prisons to the Afghan government seem like reasonable demands long overdue. They touch the raw nerve of the American occupation, and its undisguised contempt for the self-determination of the Afghan people. In light of this, such reasonable demands will not be fully accommodated, but maybe partially accepted as the price of retaining the authority of a foreign occupier.  In this vein, there are reports that the American prison authorities will turn over Afghan prisoners, but retain a veto to deny some transfers.

 

These American tactics of counterinsurgency are consistently perceived by the Afghan people to be principal sources of ‘occupation terror.’ The American response to these demands sounds as though lifted from a colonial handbook: raids in the middle of the night are effective operations and that the Afghan judicial system is not capable of the handling the legal issues associated with dangerous Afghan detainees. Such a response unintentionally poses an awkward question: ‘who is entitled to govern Afghanistan at this time?’ It has long been the awkward truth that the limits of Karzai’s mandate are not set in Kabul, but by distant Pentagon and White House officials, a reality that makes a mockery of American claims of respect for Afghan rights of self-determination.

 

This inflammable incident touches on the essence of military intervention and foreign occupation, much more so than the secondary question of whether to treat Koran burning as a mistake or crime. The act of burning is of course from differing perspectives both a mistake and a crime, but more than this burning the Koran is a telling metaphor of all the many instances of flawed Western diplomacy consisting of military intervention and foreign occupation. Such diplomacy flies in the face of the collapse of colonialism and the rise of non-West religion and culture, and produces one costly geopolitical failure after another.  To burn the most holy scripture of a culture, whether by inadvertence or calculation, is the most delegitimizing acknowledgement of bad motives and intentions that it is possible to imagine, as well as a dismaying display of cultural insensitivity.

 

In this regard Koran burning may be as provocative in its assault on Afghan political culture as was the self-immolation of Mohamed Bouazizi with respect to the authoritarian cruelty of the Tunisian regime presided over by the tyrannical rule of Zine El Alindine Ben Ali, who was driven from power as a direct result. The failure of the United States Government even now to appreciate the seriousness of what has happened , despite the several earlier intimations of the great popular significance attached to any show of disrespect toward Islam throughout the Muslim world, altogether discrediting to its claims of benevolence and undermining of its claims to be quelling the global threat of anti-Western terrorism. When the culture screams it is time to leave!

Reciprocity, Lawfare, and Self-Defense: Targeted Killing

6 Mar


 

This post is a modified, revised, and expanded text of a contribution to a six-part Jadaliyya roundtable on targeted killing, edited by Noura Erakat, and posted on the Jadaliyya website, March 5, 2012; the roundtable responds to an important article by Lisa Hajjar referred to in the opening paragraph.

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There is an emergent Israeli/American controversy on the lawfulness of targeted killing. Although the policy has not yet attained the status of being a national debate, there are signs that it may be about to happen, especially in light of the Attorney General, Eric Holder’s Northwestern Law School speech on March 5, 2012 outlining the Obama’s administration’s controversial approach to targeted killing in some detail. Lisa Hajjar convincingly narrates how the “legalization” of targeted killing has evolved over the course of the last twenty years. [Hajjar, “Lawfare and Targeted Killing:Developments in the Israeli and U.S. Contexts,” Jadaliyya, Jan. 15, 2012] She there calls attention to the analogy to the torture debate that, in many ways, defined the political and moral identity of the Bush presidency in the aftermath of the 9/11 attacks, and even caused moral and legal fissures to develop that divided the American people unto this day.

Hajjar shows that it was Israel that first crossed the threshold of legality in response to a wave of suicide bombings that traumatized Israeli society in the 1990s. In other words, targeted killing became a tactic of choice for both the Israel and the United States as part of the preventive logic of counter-terrorism, that is, placing a premium on eliminating threats before harm is inflicted rather than the reactive logic of striking back and retaliating. The upsurge in targeted killing seems responsive to the belief that neither defensive strategies nor deterrence, nor massive retaliation are appropriate or effective against a terrorist adversary, especially if the violence might accompanied by the readiness of a perpetrator to die while carrying out a mission.

By so doing, it gives up on the struggle to restrict the discretion of states to claim self-defense as an open ended justification for the use of force. This is a major setback for war prevention efforts resting on international law that can be traced back at least to the Kellogg-Briand Pact of 1928 that outlawed recourse to war, and was later reinforced and elaborated at the Nuremberg trials and in the core provisions, Articles 2(4) and 51, of the UN Charter. In other words, from an international law perspective the stakes are higher than they might seem in the context of authorizing target killing by invoking the alleged security necessities of the ‘war’ occasioned by the 9/11 attacks. Holder framed his defense of the tactics, including targeted killing, relied upon by the Obama presidency in the terms initially laid down by George W. Bush in his September 20, 2001 speech to a joint session of Congress: “We are a nation at war.” How different might the last decade have been, and likely for the better, if Bush had opted back then in that feverish atmosphere for a policy of enhanced law enforcement, not a global war on terror. And one can only wonder, and question the failure of Obama to take advantage of the changed climate in 2009 when he moved into the White House, or after the execution of Osama Bin Laden, to indicate that the war was at an end, and from now on the guidelines of law enforcement would prevail. Earlier terrorist organizations operating in Europe poses much greater threats to the security of societies than is posed by the remnants of Al Qaeda, and never insisted on the governmental prerogatives of warmaking.

In considering the victims of targeted killing we are dealing with one aspect of the plight of rightless Palestinians and alleged American enemies scattered around the world, with an inevitable skepticism about the degree to which this unaccountable authority to kill individuals is exercised in a responsible manner as claimed by its apologists, most recently by Eric Holder. Looking at the Israel record with respect to Palestinian prisons or the American treatment of its detainees at Abu Ghraib or Gunatánamo Bay there is every reason to doubt whether the claims of great care exercised in the approval of targets are to be trusted at all. Certainly, those selected for torture were often persons without information and sometimes without any real involvement with terrorist activities. In important respects, target killing is worse than torture due both to its finality which deprives the target of any opportunity to tell his or her story, and because of the collateral damage inflicted on those unlucky innocents who happen to be in the killing zone—or are mistakenly targeted.

        Lawfare: Hajjar draws an instructive distinction between those who regard reliance on law and courts as a positive dimension of political democracy and those who view recourse to law as a means to delegitimize states and their security policies. I would develop this distinction by viewing civil society’s recourse to litigation and legal arguments as “constructive lawfare,” while viewing the denigration of law’s role by governments, specifically, Israel and the US, as nihilistic or regressive, and an effort to free themselves from all forms of legal accountability that they cannot fully control. Such efforts to deplore recourse to law and international standards of legitimacy aim to insulate state security policy from procedures and discipline of accountability, and deprive society of an absolutely necessary check on the abuse of state power undertaken in secrecy and insulated from even post-facto investigation. Constructive lawfare is one of the few means available in a democratic society to redress the new imbalance between state and society in the post-9/11 world, and in relation to the acute vulnerability experienced daily by a people living under occupation for decades.

Instead of seeking to invalidate ‘lawfare,’ governments that took seriously their own insistence on the importance of living according to cherished values would move to allow citizens to have greater access to courts to raise questions of international and constitutional law flowing from governmental security policies.

More specifically, it would be a meaningful gesture in this direction if the U.S. Government were to foreswear procedural copouts from accountability by renouncing the political questions doctrine, executive privilege, and sovereign immunity. Holder quotes Obama several times to the effect that adhering to the rule of law is the right thing to do, but also because it is more effective in upholding security interests. As Obama expressed it as the National Archives in 2009: “[w]e uphold our most cherished values not only because doing so is right, but because it strengthens our country and it keeps it safe. Time and again, our values have been our best national security asset.” If that were genuinely believed, then a different approach would have been long ago adopted both in relation to targeted killing, and more generally, to security: less secrecy, more accountability, and more readiness to recognize and address the legitimate grievances of foreign adversaries.

            Reciprocity: David Cole makes the following cogent observation on his New York Review of Books blog (19 September 2011): “In international law, where reciprocity governs, what is lawful for the goose is lawful for the gander.” He goes further in questioning the approach taken to targeted killing by the Obama administration as being unmindful of setting a precedent that is a prelude to future regret: if we “continue to justify such practices in only the vaguest of terms, we should expect other countries to take them up—and almost certainly in ways we will not find to our liking.” In effect, he is adopting the view that Obama embraces, which is the convenient convergence of virtue and practical benefit.

It is true that international law in many substantive domains, from diplomatic exchange to commerce, substitutes reciprocity for enforcement, and so what is claimed for oneself is granted to others. However, in the domains of national security, the use of armed force, and criminal accountability for gross crime, international law operates more characteristically according to an imperial logic, or at best a hegemonic logic, in which equals are not treated equally. It is obvious that losers in wars with the West and leaders of some Global South countries are being held more and more accountable for crimes against humanity, especially since the establishment of the International Criminal Court a decade ago. But it is equally obvious that leaders of Western countries, including Israel, enjoy de facto impunity despite their evident involvement in crimes against humanity.

The one exception, which irritates geopolitical actors clinging to impunity, is the haphazard efforts to detain and prosecute state officials and agents under the controversial rubric of universal jurisdiction. Hajjar’s article gives a helpful summary of the pull and push pressures associated with attempts to rely on universal jurisdiction in relation to Israeli military and political leaders whose travel carries them to countries in Western Europe that have laws on their books permitting the use of domestic courts to pursue accountability for crimes of state committed beyond normal territorial sovereignty.  What is most notable is that these attempts to extend the reach of international criminal law beyond what is possible at a global level are furiously resisted by the United States and Israel, claiming the potential disruption of diplomatic interaction. True, the imposition of law can be disruptive, but the refusal to apply law is also disruptive in a different way by discrediting fundamental claims about animating values.

Whether the targeted killing precedents being set by the US and Israel will come to haunt these countries is highly uncertain, and they will do what they can to persuade public opinion that such claims made by hostile states are undisguised terrorism. Israel can assassinate Iranian nuclear scientists with impunity, while an alleged Iranian threat to kill a Saudi Arabian diplomat, which never materialized, is treated as a heinous instance of international terrorism is never questioned in the mainstream media. In other words, the language of law will be used in contradictory ways to deal with our acts and theirs’.

The US used atomic bombs against Japanese cities at the end of World War II, escaped any kind of accountability as war crimes prosecutions were limited to the wrongdoing of the Germans and Japanese, the losers in the war, which led critics of such double standards to deride the outcomes at Nuremberg and Tokyo as “victors’ justice.” In the current era, practices of targeted killing are certain to spread. Fifty countries have drones, and some deploy them for surveillance and reconnaissance missions. For example, Turkey, in fighting against Kurdish insurgents, made use of drones to carry out recent cross-border raids against PKK base areas in northern Iraq. The future will almost surely witness a strong effort by the United States to impose geopolitical discipline on attack uses of drone aircraft. Whether such an effort will be successful is uncertain as the relative high accessibility of drone technology as compared to nuclear weaponry may make it impossible to implement a non-proliferation approach.

Surely, Iran would have strong grounds to emulate Israeli and American practice with regard to targeted killing, particularly in view of the alleged Israeli targeting and assassinating of Iranian nuclear scientists in recent years, as well as mounting repeated overt threats of launching an attack designed to disable Iran’s nuclear program. Such threats would appear to be direct violations of Article 2(4) of the UN Charter that categorically prohibits “the threat or use of force” except in situations of self-defense against a prior armed attack (Article 51) or as mandated by a decision of the UN Security Council. But if Iran was to avail itself of the targeted killing precedent to assassinate individuals in Israel or the United States that it deemed to be threatening or responsible for a prior attack on its citizens, such violence would be denounced as “terrorism,” and devastating forms of retaliation would almost certainly follow.

In other words, reciprocity is not likely to shape the future of targeted killing, but rather a regime of double standards tailored to the specific realities of the spread and use of drone weaponry. If such a one sided regime is established it would have the effect of giving a new meaning to military superiority in the 21st century, and widen the opportunities for geopolitical management of international conflict. It is hard to imagine that China or Russia, and perhaps others, would acquiesce in this event, and new dangerous, costly, and unstable rivalries among leading sovereign states might likely ensue.

Human Rights: It is important to introduce the perspectives of human rights into the legal debate on targeting killing, and not limit inquiry to the applicability of international humanitarian law as set forth in the Geneva Conventions of 1949 and the Geneva Protocols of 1977. Targeted killing of a non-combatant involves a challenge to the right to life, as well as constitutes a flagrant form of extra-judicial execution. UN Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions Philip Alston, in his influential 2010 report to the UN Human Rights Council, legally condemns targeted killing by drones on these bases, especially those taking place outside the combat zone, or as the Obama presidency puts it, far from “the hot battlefield.”

These human rights objections to targeted killing take on added force when extended to individuals who are suspected of inciting terrorist acts, as was the case with Anwar al-Awlaki, but without any disclosure of evidence of either the case against the target or a credible demonstration that such an individual posed an imminent security threat and could not be captured. As Hajjar points out, the difficulties posed by detention constraints and questionable evidence that would hold up in court exert pressure to avoid these complexities by killing the person in question.

Self-defense: The most serious encroachment on relatively settled conceptions of the self-defense exception to the international law prohibition on the use of force is the US reliance on a unilaterally expanded definition of self-defense to validate targeted killing in countries remote from existing combat zones. This expansion of the right to use force is a virtual abandonment without legal and political argument of the animating undertaking of the UN Charter to set forth a legal framework that delimits as carefully as language can, the legal discretion by states to use force without a Security Council mandate. Even conceding some flexibility in construing the right of self-defense with respect to the red lines of Article 51, this kind of globalization of the option to kill terrorist suspects, and by so doing often spread terror in societies that are geographically unrelated to active battlefields, stretches self-defense beyond the breaking point in a manner resembling Yoo/Gonzales insistence that water boarding was not a form of torture. Implicit in Holder’s approach is the uncomfortable question of whether there are any limits on hegemonic lawmaking left in the 21st century? The question is not really deflected by Holder’s bland and meaningless assurance: “Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force.” (that is, necessity, discrimination, proportionality, humanity). These abstract guidelines, legal descendants of the Just War Doctrine are meaningless without being coupled to some mechanism of accountability, and here where the evidence surrounding a targeted killing is shrouded in secrecy it is not even possible to mount an informal argument of abuse.

To view the execution of individuals in Yemen or Somalia on the ground that their activities are to be assimilated to the claim of self-defense associated with a continuing urgent response to the al-Qaeda 9/11 attacks is to unilaterally expand the option of recourse to international force beyond what international law had attempted to impose on states after 1945. True, over the years state practice has nibbled away at the red lines written into Article 51, sometimes reasonably, sometimes not, especially weakened in the name of flexibility has been the insistence that a valid claim of self-defense could only be made in response to a prior armed attack, but the Obama administration’s legal rationale for targeted killing cuts the use of force off from any testable legal mooring, including the procedural requirement in the Charter that a claimant state must submit its use of force to the Security Council for review. What becomes clear, and without any indication of forethought, is the abandonment of that effort memorialized in the words of the Preamble to the UN Charter “to save succeeding generations from the scourge of war.”  Additionally, Obama has done nothing to restore the constitutional balance when it comes to war, failing to seek a declaration of war before its involvement in the NATO War against Libya. The Legal Advisor, Harold Koh, sought to justify this failure by claiming that the hostilities didn’t rise to the level of war mainly because there was little prospect of American casualties or troops on the ground. Apparently, the devastation wrought by thousands of bombing sorties does not count in Koh’s thinking as ‘war.’ Whether such a sensibility should be described as Orwellian or imperialist is mainly a matter of taste.

The most comprehensive legal justifications for targeted killing have been made by Eric Holder and John Brennan, Obama’s official chief counterterrorist advisor, in his speech at the Harvard Law School a few months ago. For devastating critique of the due process issues raised by targeted killing as rationalized by Holder see David Cole’s blog post
http://www.nybooks.com/blogs/nyrblog/2012/mar/06/targeted-killings-holder-speech/ The irony here is that, just as John Yoo shocked the conscience of liberal America by insisting that practices long assumed to be torture (most notably water boarding) were not torture (i.e., flagrantly illegal) when employed by the US government, now the Obama administration asserts a similar position that America loves the rule of law, except of course when it might inhibit recourse to a preferred tactic. If such a bump in the road, then the lawyers are sent in with their shovels to remove any appearance of an obstacle, making it clear to the world that whatever America wants to do is “legal” so are as its leading legal technicians are concerned even when the policy in question flaunts generally accepted understandings of a rule of international law. In this instance, self-defense is stretched way beyond the accepted consensus among international law specialists as most authoritatively expressed by the majority of the International Court of Justice in its Nicaragua decision of 1986. Claiming that self-defense entitles the United States to convert the entire world into a global battlefield is certainly bad law, but it is also likely to be bad policy, generating support for extremist expressions of anti-Americanism and creating tensions with such other states as China and Russia, and maybe Brazil, India, and Turkey. And it is scant consolation for Mr. Holder, Mr. Brennan and other Obama officials to reassure the public that this broad legal authority is being used prudently and sparingly, and with a maximum effort to avoid harm to others than those targeted. Unfortunately, the facts as more impartially assessed do not lend credence to such self-serving packaging of targeted killing without even taking considerationthe spread of terror to communities that might be struck day or night by a drone missile aimed at a suspect. This indiscriminate form of state terrorism embedded in targeted killing does not even get the benefit of an acknowledgement.

 A Word in Conclusion

We now have the materials we need to launch a much overdue debate on targeted killing. Unlike torture, which has vividness and immediacy that existentially assaults our sense of decency and dignity, the relative novelty and remoteness of targeted killing, a technologically facilitated innovation in the tactics of state violence, seems more abstract and numbing, and less in conflict with civilizational values. In some respects, this distinction identifies some real differences. Most legal commentators do not challenge targeted killing if confined to the combat zone, say Afghanistan, but focus their criticisms on its cross-border uses, which in the US case, can be anywhere in the non-Western world. In this regard, while torture is primarily of concern as a crime against humanity, targeted killing raises the most fundamental issues of world order, sovereignty, the scope of warfare, the crime of aggression, and extra-judicial executions.

When is an ‘NGO’ not an NGO? Twists and Turns Beneath the Cairo Skies

14 Feb


             A confusing controversy between the United States and Egypt is unfolding. It has already raised tensions in the relationship between the two countries to a level that has not existed for decades. It results from moves by the military government in Cairo to go forward with the criminal prosecution of 43 foreigners, including 19 Americans, for unlawfully carrying on the work of unlicensed public interest organizations that improperly, according to Egyptian law, depend for their budget on foreign funding. Much has been made in American press coverage that one of the Americans charged happens to be Sam LaHood, son of the present American Secretary of Transportation, adopting a tone that seems to imply that at least one connected by blood to an important government official deserves immunity from prosecution.

           

            Washington has responded with high minded and high profile expressions of consternation, including a warning from Hilary Clinton that the annual aid package for Egypt of $1.5 billion (of which $1.3 billion goes to the military) is in jeopardy unless the case against these NGO workers is dropped and their challenged organizations are allowed to carry on with their work of promoting democracy in Egypt. And indeed the U.S. Congress may yet refuse to authorize the release of these funds unless the State Department is willing to certify that Egypt is progressing toward greater democratization. President Obama has indicated his intention to continue with the aid at past levels, given the importance of Egypt in relation to American Middle Eastern interests, but as in so many other instances, he may give way if the pressure mounts. The outcome is not yet clear as an ultra-nationalistic Congress may yet thwart Obama’s seemingly more sensible response to what should have been treated as a tempest in a teapot, but for reasons to be discussed, has instead become a cause celebre.

 

            The Americans charged are on the payroll of three organizations: International Republican Institute (IRI), Democratic National Institute (DNI), and Freedom House. The first two organizations get all of their funding from the U.S. Government, and were originally founded in 1983 after Ronald Reagan’s speech to the British Parliament in which he urged that help be given to build the democratic infrastructure of newly independent countries in the non-Western world put forward as a Cold War counter-measure to the continuing appeal of Marxist ideologies. From the moment of their founding IRI and DNI were abundantly funded by annual multi-million grants from Congress, either directly or by way of such governmental entities as the U.S. Assistance for International Development  (USAID) and the National Endowment for Democracy. IRI and DNI claim to be non-partisan yet both are explicitly affiliated with each of the two political parties dominant in the United States, with boards, staffs, and consultants drawn overwhelmingly from former government workers and officials who are associated with these two American political parties. The ideological and governmental character of the two organizations is epitomized by the nature of their leadership. Madeline Albright, Secretary of State during the Clinton presidency, is chair of the DNI Board, while former Republican presidential candidate and currently a prominent senator, John McCain, holds the same position in the IRI. Freedom House, the third main organization that is the target of the Egyptian crackdown also depends for more than 80% of its funding from the National Endowment for Democracy and is similarly rooted in American party politics. It was founded in 1941 as a bipartisan initiative during the Cold War by two stalwarts of their respective political parties, Wendell Wilkie and Eleanor Roosevelt.

 

            Against this background the protests from Washington and the media assessments of the controversy seem willfully misleading. Since when does Washington become so agitated on behalf of NGOs under attack in a foreign country? Even mainstream eyebrows should have been raised sky high when Martin Demsey, currently the Chairman of the Joint Chiefs, while visiting Cairo was reported to have interceded with his military counterparts on behalf of these Americans made subject to a travel ban and faced with the threat of prosecution. When was the last time you can recall an American military commander interceding on behalf of a genuine NGO? To paraphrase Bob Dylan, ‘the answer my friends, is never.’ So even the most naïve among us should be asking ‘what is really going on here?’

 

            The spokespersons for the organizations treat the allegations as a simple case of interference with the activities of apolitical and benevolent NGOs innocently engaged in helping Egyptians receive needed training and guidance with respect to democratic practices, especially those relating to elections and the rule of law. Substantively such claims seem more or less true at present, at least here in Egypt. Sometimes these entities are even referred to by the media as ‘civil society institutions,’ which reflects, at best, a woeful state of unknowing, or worse, deliberate deception. Whatever one thinks of the activities of these actors, it is simply false to conceive of them as ‘nongovernmental’ or as emanations of civil society. It would be more responsive to their nature if such entities were described as ‘informal governmental organizations.’ (IGOs)

 

            It is hardly surprising that a more honest label is avoided as its use would call attention to the problematic character of the undertakings: namely, disguised intrusions by a foreign government in the internal politics of a foreign country with fragile domestic institutions of government by way of behavior that poses at the very least a potential threat to its political independence. With such an altered interpretation of the controversy assumes a different character. It becomes quite understandable for the Egyptian government seeking to move beyond its authoritarian past to feel the need to tame these Trojan Horses outfitted by Washington. It would seem sensible and prudent for Egypt to insist that such organizations, and especially those associated with the U.S. Government, be registered and properly licensed in Egypt as a minimum precondition for receiving permission to carry on their activities in the country, especially on matters as sensitive as are elections, political parties, and the shaping of the legal system. Surely the United States, despite its long uninterrupted stable record of constitutional governance, would not even consider allowing such ‘assistance’ from abroad.  If it had been proposed by, say, Sweden, an offer of help with democracy would have been immediately rebuffed, and rudely dismissed as an insult to the sovereignty of the United States  despite Sweden being a geopolitical midget and U.S. being the gorilla on the global stage.

 

            And these Washington shrieks of wounded innocence, as if Cairo had no grounds whatsoever for concern, are either the memory lapses of a senile bureaucracy or totally disingenuous. In the past it has been well documented that IRI and DNI were active in promoting the destabilization of foreign governments that were deemed to be hostile to the then American foreign policy agenda. The Reagan presidency made no secret of its commitment to lend all means of support to political movements dedicated to the overthrow of left-leaning governments in Latin America and Asia. The most notorious instances involving the use of IRI to destabilize a foreign government is well known among students of American interventionist diplomacy. For instance IRI funds were extensively distributes to anti-regime forces to get rid of the Aristide government in Haiti, part of a dynamic that did lead to a coup in 2004 that brought to power reactionary political forces that were welcomed and seemed far more congenial to Washington’s ideas of ‘good governance’ at the time. IRI was openly self-congratulatory about its role in engineering a successful effort to strengthen ‘center and center/right’ political parties in Poland several years ago, which amounts to a virtual confession of interference with the dynamics of Polish self-determination.

 

            Although spokespersons for these organizations piously claim in their responses to these recent Egyptian moves against them to respect the sovereignty of the countries within which they operate, and especially so in Egypt. Even if these claims are generally true, ample grounds remain for suspicion and regulation, if not exclusion, on the part of a territorial government. An insistence upon proper regulation seems entirely reasonable if due account is taken of the numerous instances of covert and overt intervention by the United States in the political life of non-Western countries.

 

            Against such a background, several conclusions follow: first, the individuals being charged by Egypt are not working for genuine NGOs or civil society institutions, but are acting on behalf of informal government organizations or IGOs; secondly, the specific organizations being targeted, especially the DNI and IRI are overtly ideological in their makeup, funding base, and orientation; and thirdly, there exist compelling grounds for a non-Western government to regulate or exclude such political actors when due account is taken of a long American record of interventionary diplomacy. Thus the Washington posture of outrage seems entirely inappropriate once the actions of the Egyptian government are contextually interpreted.

 

            Yet the full story is not so simple or one-sided. It needs to be remembered that the Egyptian governing process in the year since the uprising that led to the collapse of the Mubarak regime has been controlled by the Supreme Council of the Armed Forces (SCAP), which is widely believed by the Egyptian public to be responsible for a wave of repressive violence associated with its fears that some democratic demands are threatening their position and interests in the country. A variety of severe abuses of civilian society have been convincingly attributed to the military.  As well the military is responsible for a series of harsh moves against dissenters who blog or otherwise act in a manner deemed critical of military rule. In effect, the Egyptian government, although admittedly long concerned about these spurious NGOs operating within its territory even during the period of Mubarak rule, is itself seemingly disingenuous, using the licensing and funding technicalities as a pretext for a wholesale crackdown on dissent and human rights so as to discipline and intimidate a resurgent civil society and a radical opposition movement that remains committed to realizing the democratic promise of the Arab Spring.

 

            There is another seemingly strange part of the puzzle. Would we not expect the United States to side the Egyptian military with which it worked in close harmony during the Mubarak period. Why would Washington not welcome this apparent slide toward Mubarakism without Mubarak? Was this not America’s preferred outcome in Egypt all along, being the only outcome that would allow Washington to be confident that the new Egypt would not rock the Israeli boat or otherwise disturb American interests in the region. There is no disclosure of U.S. motives at this time for its present seemingly pro-democracy approach, but there are grounds for thinking Washington may be reacting to the success of the Muslim Brotherhood and the Nour (Salafi) Party in the Egyptian parliamentary elections and even more so to the apparent collaboration between these parties and the SCAF in planning Egypt’s immediate political future. In such a setting it seems plausible that sharpening state/society tensions in Egypt by siding with the democratic opposition would keep alive the possibility of a secular governing process less threatening to U.S./Israeli interests, as well as inducing Egypt itself to adopt a cautious approach to democratic reform. Maybe there are different explanations more hidden from view, but what seems clear is that both governmental in this kafuffle have dirty hands and are fencing in the dark at this point, that is, mounting arguments and counter-arguments that obscure rather than reveal their true motivations.

 

            In the end, Egypt, along with other countries, is likely to be far better off if it prohibits American IGOs from operating freely within its national territorial space, especially if their supposed mandate is to promote democracy as defined and funded by Washington. This is not to say that Egyptians would not be far better off if the SCAF allowed civilian rule to emerge in the country and acted in a manner respectful of human rights and democratic values. In other words what is at stake in this seemingly trivial controversy lies hidden by the smokescreens relied upon by both sides in the dispute: weighty matters of governance and democracy that could determine whether the remarkable glories of the Arab Spring mutate in the direction of a dreary Egyptian Autumn, or even Winter. 

The Menace of Present & Future Drone Warfare

12 Feb


 

            After the atomic bombs were dropped on Hiroshima and Nagasaki, and the colossal scale of devastation disclosed, there was a momentary embrace of sanity and rationality by world leaders and cultural commentators. There was a realization that living with such weaponry was at best a precarious journey into the future, and far more likely, an appointment with unprecedented human catastrophe if not apocalypse. This dark mood of foreboding did produce some gestures toward nuclear disarmament tabled initially by the U.S. Government, but in a form that reasonably struck others at the time, especially the Soviet Union, as a bad bargain—the U.S. was proposing getting rid of the weapons for the present, but retaining the materials, the technology, and the experience needed to win handily any nuclear rearmament race. In other words, the United States offered the world a Faustian Bargain that rested on bestowing trust upon the dominant geopolitical actor on the global stage, and depended crucially on Soviet willingness to go along on such a basis, an option that never seriously tempted the Stalinist approach to world order.

 

            It should not seem surprising then or now that given the political consciousness of those running the strongest and richest modern states, that this kind of one-sided deal was not an attractive response to nuclear weaponry. Even the governments most closely allied with the United States in World War II, the United Kingdom and France, were unwilling to forego the status and claimed security benefits of becoming second tier nuclear weapons state. And of course, America’s rivals, first, the Soviet Union and later China, never hesitated to develop their own nuclear weapons capability, interpreting security and global stature through the universal geopolitical optic of countervailing hard power, that is, maximizing military capabilities to defend and attack. Thus disarmament faded into the obscurity of wishful thinking, and in its place a costly and unstable nuclear arms race ensued during the whole of the Cold War, with an array of situations that came close to subjecting humanity to the specter of a nuclear war. That this worst of all nightmares never materialized provides little reassurance about the future, especially if public and elite complacency about the risk of nuclear warfare persists.

 

            What is less appreciated than this failure to eliminate the weaponry in the immediate aftermath of World War II was the adoption and implementation of a Plan B.  The United States pushed hard for the negotiations that led in 1968 to the Nuclear Nonproliferation Treaty, which was successfully marketed to most states in the world. The NPT represented a one-sided bargain in which non-weapons states agreed to give up their weapons option in exchange for two commitments by nuclear weapons states: to share fully the non-military benefits of nuclear technology, especially relating to producing energy that was early on expected to be both clean and cheap; and to undertake in good faith efforts to achieve nuclear disarmament as the earliest possible time, and even to go further, and to work toward the negotiation of general and complete disarmament. This nonproliferation agreement over the years, although a success in Western realist circles, has experienced a number of discrediting setbacks: a few countries with nuclear weapons ambitions stayed outside the treaty and managed to acquire the weaponry without adverse consequences to themselves (India, Pakistan, Israel), while others (Iraq, Iran) have been attacked or threatened because they were suspected of seeking nuclear weapons; there has been a virtual failure of will to seek nuclear disarmament despite a unanimous World Court reaffirmation of the NPT obligations in its 1996 Advisory Opinion on The Legality of Nuclear Weapons; and there has been a discriminatory pattern of geopolitical management of the NPT, most notably ignoring Israel’s nuclear weapons program while treating Iran’s alleged pursuit of a breakout capability as justifying recourse to war.

 

            This nonproliferation approach has been accompanying by three massive forms of deception that continues to mislead public opinion and discourage serious debate about the benefits of nuclear disarmament even at this late stage: First, the fallacious implication that the states that do not possess nuclear weapons are currently more dangerous for world peace than the states that possess, develop, and deploy these weapons of mass destruction, and have used them in the past; secondly, that periodic managerial moves among nuclear weapons states, in the name of arms control, are steps in the direction of nuclear disarmament—nothing could be further from the truth as arms control aims to save money and stabilize reliance on nuclear weaponry by way of deterrence, and is generally averse to getting rid of the weaponry; thirdly, the phony claim, endorsed by Barack Obama in his Prague speech of 2009 on the theme, that obtaining a world without nuclear weapons is to be sure an ‘ultimate’ goal to be affirmed, but that it is not a political project that can be achieved in real time by way of a phased and verified nuclear disarmament treaty. In actuality, there is no genuine obstacle to prudently phasing out these weapons over the course of a decade or so. What blocks the elimination of nuclear weapons is only the dysfunctional refusal of the nine nuclear weapons states to give up the weaponry.

 

            It should be appreciated that this two-tier approach to nuclear weaponry is a departure from the approach taken to other weapons of mass destruction—that is, either prohibiting a weapon altogether or allowing its use in a manner consistent with the principles of customary international law bearing on the conduct of war (proportionality, discrimination, necessity, and humanity). Regimes of unconditional prohibition exist with respect to biological and chemical weapons, and are respected, at least outwardly, by the main global geopolitical actors. Why the difference? The atom bombs dropped on Japan were to a degree, despite the havoc, legitimized because used by the prevailing side in what was claimed to be military necessity and perceived as a just war. The contrast with the prohibition of chemical weapons widely used by the German losing side in World War I illustrates the lawmaking role of geopolitically dominant political actors that impose their will on the evolution of international law, especially in the security domain.

 

            The U.S. reliance on attack drones to engage in targeted killing, especially in third countries (Yemen, Somalia, Ethiopia, Pakistan) has raised controversial international law issues of sovereign rights in interaction with lethal acts of war, especially those far removed from the zone of live combat. The increasing reliance on drones during the Obama presidency has produced unintended deaths, civilians in the vicinity of the target and attacks directed at the wrong personnel, as with the NATO helicopter attack that killed 24 Pakistani soldiers who had been deployed near the Afghan border on November 25, 2011, provoking a major international incident (although not a drone attack, it was linked by angered Palistani officials to similar mis-targeting by drones). There are also unconfirmed reports of drone follow up raids at sites of targeted killing that seem directed at those who mount rescue operations or arrange funerals for prior victims. As with the Bush torture debate the political leadership in Washington has turned for justifications to government lawyers who have responded by developing drone legal briefs that seem somewhat analogous to the notorious Yoo ‘torture memos.’ There are, however, some differences in the two contexts that work against equating the two controversies about post-9/11 war making.

 

            For one thing, torture has a long history, having been practiced by governments for centuries, and its relatively recent prohibition is embedded in a clear norm criminalizing torture that is contained in the International Torture Convention of 1984. Torture is also enumerated as one of the Crimes Against Humanity in the statute of the International Criminal Court. Drone technology adapted to serve as a battlefield weapon is, in contrast, of extremely recent origin. Nothing in international law exists that is comparably specific with respect to drone attacks to the legal repudiation of torture. There is some resemblance between efforts by Obama law officials to stretch the conception of self-defense beyond previously understood limits to justify targeted killing and the Bush lawyers who claimed that water boarding was not torture. Expanding the prior understanding of the legal right of self-defense represents a self-serving reinterpretation of this core international legal norm by the U.S. Government. It seems opportunistic and unpersuasive and seems unlikely to be generally accepted as a reframing of the right of self-defense under international law.

 

            Perhaps, the most important difference between the torture and drone debates has to do with future implications. Although there are some loopholes involving extraordinary rendition and secret CIA operated overseas black sites, torture has been credibly prohibited by President Obama. Beyond this, the repudiation of torture has been understood in a manner that conforms to the general international consensus rather than the narrowed conception insisted upon by the Bush-era legalists. In contrast, drones seem destined to be central to operational planning for future military undertakings of the United States, with sharply escalating appropriations to support both the purchase of increasing numbers and varieties of drone. The government is  engaging in a major research program designed to make drones available for an expanding range of military missions and to serve as the foundation of a revolutionary transformation of the way America will fight future wars. Some of these revolutionary features are already evident: casualty-free military missions; subversion of territorial sovereignty; absence of transparency and accountability; further weakening of political constraints on recourse to war.

 

            Future war scenarios involve attacks by drones swarms, interactive squadrons of drones re-targeting while in a combat zone without human participation, and covert attacks using mini-drones. A further serious concern is the almost certain access to drone technology by private sectors actors. These musings are not science fiction, but well financed undertakings at  or beyond the development stage. It is in these settings of fhere, especially, where the analogy to nuclear weapons seems most pertinent, and discouraging. Given the amount invested and the anticipated profitability and utility of drones, it may already be too late to interrupt their development, deployment, and expanding sphere of use. Unlike nuclear weaponry, already some 50 countries reportedly possess drones, mainly adapted to surveillance. As with nuclear weaponry, the United States, and other leading political actors, will not agree to comprehensive prohibitions on the use of drones for lethal purposes.

 

            If this line of reasoning is generally correct, there are two likely futures for attack drones: an unregulated dispersion of the weaponry to public and private actors with likely strategic roles undermining traditional international law limits on war making and public order; or a new non-proliferation regime for drones that permits all states to possess and use surveillance drones within sovereign space and allows some states to make discretionary use of drones globally and for attack purposes until a set on constraining regulations can be agreed upon by a list of designated states. That is, drone military technology will perpetuate the two-tier concept of world order that has taken shape in relation to nuclear weapons, and reflects the consensus that both nuclear disarmament and unrestricted proliferation of nuclear weaponry are unacceptable. In this regard, a counter-proliferation regime for drones is a lesser evil, but still an evil.

 

            The technological momentum that has built up in relation to drones is probably too strong to be challenged politically. The military applications are too attractive, the technology is of a cutting edge fantasy quality, the political appeal of war fighting that involves minimum human risk is too great. At the same time, for much of the world this kind of unfolding future delivers a somber message of a terrifying unfolding vulnerability. At present, there seems to be no way to insulate societies from either intrusive and perpetual surveillance or the prospect of targeted killing and devastation conducted from a remote location. It may be contended that such an indictment of drones exaggerates their novelty. Has not the world lived for decades with weapons of mass destruction possessed by a small number of non-accountable governments and deliverable anywhere on the planet in a matter of minutes? This is superficially true, and frightening enough, but the catastrophic quality of nuclear weaponry and its release of atmospheric radioactivity operates as an inhibitor of uncertain reliability, while with drone their comparative inexpensiveness and non-apocalyptic character makes it much easier to drift mindlessly until an unanticipated day of reckoning occurs by which time all possibilities of control will have been long lost.

 

            As with nuclear weaponry, climate change, and respect for the carrying capacity of the earth, we who are alive at present may be the last who have even the possibility of upholding the life prospects of future generations. It seems late, but still not too late to act responsibly, but we will not be able to make such claims very much longer. Part of the challenge is undoubtedly structural. For most purposes, global governance depends on cooperation among sovereign states, but in matters of war and peace the world order system remains resolutely vertical and under the control of geopolitical actors, perhaps as few as one, who are unwilling to restrict their military activities to the confines of territorial boundaries, but insist on their prerogative to manage coercively the planet as a whole. When it comes to drones the fate of humanity is squeezed between the impotence of state-centric logic and the grandiose schemes of the geopolitical mentality. 

Remembering the Best and Worst of 2011

3 Jan


             2011 was an exciting and pivotal year in many respects, although its main outcomes will remain inconclusive for years to come.  We will learn in 2012 whether we are moving closer to fulfilling our hopes, dreams, and goals or are trying to interpret and overcome a recurrence of disappointment and demoralization with respect to progressive change in world affairs. The stakes for some societies, and for humanity, have rarely been higher.

 

             Undoubtedly, the most dramatic moments of the prior year were associated with those many remarkable happenings that collectively became known as the Arab Spring, a complex, varied, and even contradictory phenomenon that did not occur in an historical vacuum. There were many antecedent events, as well as prior heroes and victims, known and unknown, and numerous identified and unidentified villains. Mohamed Bouazizi’s extraordinary self-immolation on December 17, 2010 in the interior Tunisian city of Sidi Bouzid provided a catalyzing experience that will never be forgotten by those longing for justice and change.  This suicide achieved much more than highlight personal tragedy, although this sad ending of a young besieged life was itself a most sorrowful occurrence. Bouazizi’s death awakened the Tunisian public to an intolerable set of national conditions that pertained to the whole society. With explosive spontaneity Bouazizi’s tragic death generated Tunisian uprisings throughout the country that led quickly and surprisingly to the fall of the dictatorial and corrupt 23 year old regime of Zine El Abidine Ben Ali a mere five weeks later, a startling course of events that provided a spark for volcanic action in Egypt, and indeed the entire region.

 

            The brave and transformative Egyptian demonstrations of January 2011, centered in Tahrir Square, contributed to the world many images of populist energy and courage associated with a political awakening of vivid and massive proportions. The fall of Mubarak in Egypt inspired people throughout the region and eventually the world. What was achieved in Tunisia and Egypt reestablished the agency of a mobilized populace that nonviolently challenges an entrenched regime of an oppressive and corrupt character that had endured for some 30 long years.  More than surprising developments in Tunisia and Egypt, regimes regarded as ultra-stable by their Western backers, was the exposure of several distortions embedded in prevalent Orientalist teachings to the effect that Arabs had a slave mentality. In effect, oppressed Arabs were consigned to their unhappy fates because they lacked the will or capacity to embark upon political undertakings to challenge unjust political structures, were reconciled to their subservience, and had no social imaginary that insisted on the dignity of ordinary people and demanded justice for society. In the sharpest contrast, the Tahrir political spectacle exhibited an Arab population prepared to risk death and harsh imprisonment so as to achieve freedom, human rights, democracy, as well as an equitable economic order.

 

            These were inspiring uprisings that achieved unbelievably successful results, toppling tyrants long entrenched at the pinnacles of state power. Many participants and commentators believed that these extraordinary uprisings were accomplishing revolutionary results by toppling the old regimes and thereby transforming the political setting. Unfortunately, such enthusiasm was a disheartening exaggeration, and definitely remains premature. A revolutionary process implies radically transforming the political, economic, and social structures so as to produce just and democratic societies.  Such work has yet to be done anywhere in the Arab world, and it will not be easy, or accomplished without overcoming formidable and desperate resistance from beleaguered governmental, societal, and international elites that had long benefitted from the old regime, and would stand lose from genuine political reform.

 

            Tunisia seems to be moving forward toward the realization of its revolutionary promise, although even progress on its road of political reconstruction is slow, uncertain, and replete with twists and turns. Tunisia has not yet experienced what could be fairly called a revolutionary outcome, although it is so far free from a counter-revolutionary backlash. At this time the overall outlook for Tunisia remains exciting and positive. The same cannot now be said for Egypt, which is gripped by a series of deadly unresolved struggles that leaves its future very much in doubt, and makes us wonder whether 2012 will suggest an Egyptian outcome that is, at best, outwardly reformist, while remaining inwardly regressive. It would be a mistake to ignore counter-revolutionary maneuvers and horizons, abetted by external actors that never privately welcomed the Arab Spring and would welcome restoration of the old regimes, if possible with new faces and a political style that was more superficially congenial with democratic procedures.

 

            And yet many Egyptians continue to struggle on behalf of a revolutionary future. Despite the violence of the Cairo regime without Mubarak they returned in late 2011 to Tahrir Square for a second cycle of demonstrations. The show of unrestrained state violence and cruelty used to crush this renewal of popular demands for democracy, civilian governance, and justice was a reminder that the ouster of Mubarak was the beginning, not the end, of a long and difficult struggle to shape the political future of the country. The Egyptian army that last January seemed almost to greet the fall of Mubarak with a sigh of relief, now seems to be showing its hand as intensely anti-democratic and hostile to fundamental social and economic reforms that might threaten their privileges, but are urgently needed if Egyptian democracy is to become more than a discredited slogan. Also, the domestic situation is complicated by growing tensions between secularists and Islamists as to what sort of role Islam should play in Egypt that are susceptible to manipulation by malevolent outsiders. Although each country in the region is experiencing the Arab Spring in its own way, the form of the Egyptian unfolding, for better or worse, is the one that is most likely to exert a significant influence beyond its borders.

 

            It must also be admitted that the Arab Spring has already produced its share of extremely disappointing results: Uprisings generated an escalation of oppression in Bahrain, a despondent resignation in Saudi Arabia and Algeria, a destructive and very violent NATO intervention in Libya,  a situation of unresolved chaos and violence in Yemen, and a series of inconclusive bloody encounters in Syria.

 

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            Among the most extraordinary of extra-regional impacts of the events in the Arab world was the totally unanticipated Occupy Movement, starting in Wall Street, but spreading with the speed of an uncontrollable wild fire to cities throughout the United States, and then around the world. The word Occupy was given a radically transformed meaning through this movable feast of radical reclaimings of political space through nonviolent tactics that were confrontational toward the established order, including especially a display of anger about the excesses of capitalism and financial institutions. The movement was indistinct in its contours and goals, seemingly dedicated to the realization of democratic values on a global scale, particularly with respect to the global economy, but without any confidence that desirable ends could be reached by way of conventional politics: elections, political parties, institutional lawmaking, and governmental policies.

 

            The creativity of the movement was embodied in its radical reliance on pure democracy to manage its own collective behavior, giving equality of participation the highest priority. So far, the Occupy Movements have lacked a clear agenda of substantive initiatives and demands, remained leaderless, and operating without a program or even a consistent spokesperson, but in varying ways deferring to the daily needs and wishes of its militants camped out in dozens of city squares and parks. Whether this kind of politics represents the first stage of a new revolutionary politics capable of both challenging the modern capitalist state and of transforming neoliberal globalization into a robust realization of global democracy is most uncertain at present, but may become clearer throughout 2012.  At the very least, the political imagination of resisters in the West to injustice has been temporarily lifted from the doldrums of passivity and despair. The idea that popular discontent need not await the outcome of normal politics is again credible. Such politics can move to occupy and maybe, just maybe, stay around long enough to mount a political challenge that shakes the foundations of what was triumphantly dubbed ‘market-oriented constitutionalism’ at the end of the Cold War.  We should begin to ask ourselves whether we are witnessing the birthpangs of what I have called ‘anarchism without anarchism.’  Or is this just a political dance that will continue only so long as the music plays?

 

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            There were many other important happenings in 2011, some encouraging, some foreboding, and some ambiguous. Only a few can be mentioned.

 

            First of all, the speech given by Mohamed Abbas, President of the Palestinian Authority (PA) to the UN General Assembly on September 25, putting forward a clear official argument for the first time calling for an acceptance of Palestinian statehood and sovereignty by the United Nations. The forcefulness of the language used by President Abbas exceeded expectations, and was especially impressive in light of the intense campaign of intimidation mounted by Israeli officials and their American counterparts to warn the Palestinians of dire consequences if they persisted with this political initiative. The speech also was political theater at its best, displaying the solidarity of most governments with the Palestinian effort to escape the ordeals of occupation, refugee status, and pervasive exploitation. Abbas’ words were greeted with explosive applause that no other head of state received at last year’s session of the General Assembly.

 

            As might be expected given the varied conditions of deprivation, not every Palestinian welcomed the PA initiative. There were some well grounded anxieties that any establishment of Palestinian statehood at this time would involve a tacit acceptance of Israeli ‘facts on the ground,’ including settlements, apartheid, and ethnic cleansing, and in such a process sacrifice inalienable Palestinian rights. Some Palestinians also worried that such an international acceptance of the PA would inevitable sideline the parent representative body, the PLO, serving as a prelude to bargaining away the rights of Palestinian refugees and exiles, as well as excluding Hamas from any representational role, which would effectively deny the people of Gaza any opportunity to participate in the diplomacy designed to control their future.

 

            Encouragingly, in October the PA followed up the bold Abbas speech by seeking and gaining membership as a state in UNESCO by an overwhelming  vote of 107-14 despite a barrage of punitive threats and responses by Washington and Tel Aviv (U.S. is committed to withholding 22% of the UNESCO budget for the coming year).  On December 13th the Palestinian flag was raised at UNESCO Headquarters in Paris as Palestine became the 195th  member of the organization. This play of forces at UNESCO is a microcosm of worldwide political sentiments favorable to the Palestinian struggle.

 

            Despite this victory, it now appears that the PA has again lost its nerve, and is retreating to Ramallah. It seems that the PA will make no further effort to gain recognition as a state by the Security Council or General Assembly or attempt to be accepted as a member of other UN institutions, such as the International Criminal Court and the International Court of Justice. If this retreat materializes, it will encourage the Palestinian people to believe that only politics from below can hope to achieve emancipatory results.

 

            We must also not lose sight of existential Palestinian hardships and suffering that is something that the people living under occupation or confined in Gaza or refugee camps experience day by day, hour by hour. These miserable conditions experienced by Palestinians living in the West Bank, East Jerusalem, and Gaza have persisted for decades, and there is no end in sight. Israel continues to expand its settlements in defiance of international law and world public opinion and goes on insisting on its acceptance as ‘a Jewish state’ despite claiming to be the only democratic country in the region, and the only government that treats its citizens on a non-discriminatory basis. This misleading Israeli propaganda hides policies and patterns of governmental conduct that have long been multiply abusive toward the non-Jewish Palestinian minority in Israel that numbers about 1.4 million or about 20% of the total population.

 

            What the Palestinian people endured in 2011 was mainly experienced as a dismal confirmation of continuity. Perhaps, the Abbas abortive effort at the UN will seem in 2012 to have sounded the deathknell of diplomacy from above as the way forward for the Palestinian people. In its place will grow an increasing reliance on various forms of borderless and nonviolent politics from below. At present, the ever strengthening global solidarity movement encourages such a shift in emphasis. The Boycott, Divestment, and Sanctions Campaign (BDS) is presently the clearest and most encouraging expression of this Palestinian move away from inter-governmental frameworks of conflict solution.  And for BDS maybe 2012 will be the year that sanctions come to reinforce the stunning successes already achieved with respect to boycotts and divestment.

 

 

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            In 2011, the climate change clock continued to tick. Greenhouse gas emissions keep rising far above safe levels, despite the scientific community’s warnings that the failure to regulate emissions is causing present harm of a severe sort and threatening much worse in the years and decades ahead. By the time such warnings are likely to be heeded because the damage has become so widespread and manifest, it may well be too late, as the effects of a carbon buildup cannot be reversed after certain thresholds are crossed. Already extreme weather in the form of storms, tornados, floods, and droughts have brought devastation and suffering to many societies in the world, especially those most vulnerable due to their geography or poverty. The early effects of global warning have been most severely experienced in sub-Saharan Africa where 33 of the 48 least developed countries are situated. The annual UN conferences on climate change have run up against a stonewall of geopolitical irresponsibility, led by the U.S. refusal to allow any framework of regulation to come into being that imposes obligations on states, burdens the private sector, and questions the cult of consumerism. The EU seems ready to offer the world a more constructive approach to climate change, but whether it can rally enough political support to impose controls on the principal emitters of carbon dioxide remains doubtful. It is crucial that those seeking a just future for humanity do not neglect the challenge of climate change, which is less tangible and immediate in its harmful impact than other concerns, but no less deadly. Without adjustments prior to catastrophic events, ecological and civilizational collapse could make a nightmare of the near future for all peoples living on the planet.

 

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            The meltdown and damage at the Daichi Fukushima nuclear reactor complex initiated by the earthquake and tsunami of March 11, 2011 are a foretaste of what can happen anywhere in the world. For Japan to experience ‘a second Hiroshima’ both deepens the tragedy and is testimony to a sad irony of history. It also challenges Japan and the world to find safer alternatives to nuclear energy to meet the demands of society, and raises questions about the sustainability of consumer-based modernity with its high per capita energy demand. For other countries, especially the United States, the unmonitored huge energy requirements needed to maintain 21st century military establishments is a further aggravating circumstance, with many secondary harmful effects, including accident-prone deep sea oil drilling and the attempted conversion of environmentally devastating tar sands into usable forms of energy. Fukushima exhibited the dire consequences of natural catastrophe abetted by human error and wrongdoing in the form of corporate mendacity relied upon to hide risks from the public and governmental complicity in issuing false reassurances about the extent of the damage and the degree of exposure of the Japanese population to lethal doses of radioactivity in water, food, and air.

 

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            Disturbing, also, were unacceptably belligerent moves by Israel and the United States threatening to wage war against Iran. This appetite for waging war against Muslim countries is making the projected clash of civilizations a self-fulfilling prophesy as it becomes established as an undeniable historical reality. In the first decade of this century the West has already intervened militarily in Afghanistan, Iraq, Libya, as well as gearing up for war against Iran, and even threatening to use force in Syria and mounting deadly drone attacks in Pakistan. In all these post-9/11 encounters there was no serious claim of self-defense and no UN mandate except in Libya where a limited protective authority to use force was approved by the UN Security Council, and later improperly converted by NATO into an instrument to sway the internal play of forces in an internal struggle within Libya. These were each unlawful wars that inflicted devastation, heavy casualties, and massive displacement on the target societies. Each was in its essence an imperial war fought far from the imperial homelands, and each represented a strategic failure by the imperial power, a definite signal to the world of imperial decline, further confirmed by economic troubles at home and the rise of extremist oppositional parties with highly irresponsible agendas and ‘solutions.’ For instance, all of the Republican Party presidential candidates are ‘climate skeptics’ who defy the scientific consensus, which should be understood as a turning away from evidence and reason, in effect, a flight from reality.

 

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            All in all, 2011 will be remembered as a seminal year, principally due to innovative political uprisings that shook the foundations of established orders. More subtly, also, 2011 dramatizded a series of challenges that will not be resolved for a long time as to the sustainability of development and the global maintenance of stable ecological and economic conditions. These challenges seem to exceed the capacity of a world of sovereign states to address in acceptable forms. Two major effects are observable: first, a widespread politics of denial to divert attention from the ticking bombs of worsening conditions associated with these unmet challenges; and secondly, the exhilarating realization that toppling oppressive structures of government in the Arab world has already moved beyond the realm of the possible, having achieved more than could have been dreamed of in 2010, and producing some hope that a politics of impossibility may lead to an as yet unimaginable global dawn.

 

Kuala Lumpur War Crimes Tribunal: Bush and Blair Guilty

29 Nov

This post is modified version of a text published by Al Jazeera a few days ago. It is a sequel to the piece entitled “Toward a Jurisprudence of Conscience,” and will be followed by an assessment of the Russell Tribunal on Palestine session in Cape Town, South Africa investigating the allegations that Israel is guilty of imposing apartheid on the Palestinian people, considered by the Rome Treaty framework of the International Criminal Court to be a crime against humanity.

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Criminal Justice in Kuala Lumpur

 

            In Kuala Lumpur, after two years of investigation by the Kuala Lumpur War Crimes Commission (KLWCC), a tribunal (Kuala Lumpur War Crimes Tribunal or KLWCT) consisting of five judges with judicial and academic backgrounds reached a unanimous verdict that found George W. Bush and Tony Blair guilty of crimes against peace, crimes against humanity, and genocide as a result of initiating the Iraq War in 2003, and in the course of maintaining the subsequent occupation. The proceedings took place over a four day period from November 19-22, and included an opportunity for court appointed defense counsel to offer the tribunal arguments and evidence on behalf of the absent defendants who had been invited to offer their own defense or send a representative, but declined to do so. The prosecution team was headed by two prominent legal personalities with strong professional legal credentials: Gurdeal Singh Nijar and Francis Boyle. The verdict issued on November 22, 2011 happens to coincide with the 48th anniversary of the assassination of John F. Kennedy.

 

            The tribunal acknowledged that its verdict was not enforceable in a normal manner associated with a criminal court operating within a sovereign state or as constituted by international agreement as is the case with the International Criminal Court or by acts of the United Nations as occurred in the establishment of the ad hoc International Criminal Tribunal for former Yugoslavia. But the KLWCT by following a juridical procedure purported to be operating in a legally responsible manner, which would endow its findings and recommendations with a legal weight that seems expected to extend beyond a moral condemnation of the defendants, but in a manner that is not entirely evident.

 

            The KLWCT added two ‘Orders’ to its verdict that had been adopted in accordance with the charter of the KLWCC that controlled the operating framework of the tribunal: 1) Report the findings of guilt of the two accused former heads of state to the International Criminal Court in The Hague; 2) Enter the names of Bush and Blair in the Register of War Criminals maintained by the KLWCC.

 

            The tribunal these Orders by adding recommendations to its verdict: 1) Report findings in accord with Part VI (calling for future accountability) of the Nuremberg Judgment of 1945 addressing crimes of surviving political and military leaders of Nazi Germany; 2) File reports of genocide and crimes against humanity at the International Criminal Court in The Hague; 3) Approach the UN General Assembly to pass a resolution demanding that the United States end its occupation of Iraq; 4) Communicate the findings of the tribunal to all members of the Rome Statute (governing the International Criminal Court) and to all states asserting Universal Jurisdiction that allows for the prosecution of international crimes in national courts; 5) Urge the UN Security Council to take responsibility to ensure that full sovereign rights are vested in the people of Iraq and that the independence of its government be protected by a UN peacekeeping force.

 

The Anti-War Campaign of Mahathir Mohamed

 

            These civil society legal initiatives are an outgrowth of a longer term project undertaken by the controversial former Malaysian head of state, Mahathir Mohamed, to challenge American-led militarism and to mobilize the global south to mount an all out struggle against the war system.  This vision of a revitalized struggle against war and post-colonial imperialism was comprehensively set forth in Mahathir’s remarkable anti-war speech of February 24, 2003, while still Prime Minister, welcoming the Non-Aligned Movement to Kuala Lumpur for its XIIIth Summit. Included in his remarks on this occasion were the following assertions that prefigure the establishment of the KLWCC and KLWCT:  “War must be outlawed. That will have to be our struggle for now. We must struggle for justice and freedom from oppression, from economic hegemony. But we must remove the threat of war first. With this Sword of Democles hanging over our heads we can never succeed in advancing the interests of our countries.
War must therefore be made illegal. The enforcement of this must be by multilateral forces under the control of the United Nations. No single nation should be allowed to police the world, least of all to decide what action to take, [and] when.”
Mahathir stated clearly on that occasion that his intention in criminalizing the behavior of aggressive war making and crimes against humanity was to bring relief to victimized peoples with special reference to the Iraqis who were about to be attacked a few weeks later and the Palestinians who had long endured mass dispossession and an oppressive occupation. This dedication of Mahathir to a world without war was reaffirmed through the establishment of the Kuala Lumpur Foundation to Criminalize War, and his impassioned inaugural speech opening a Criminalizing War Conference on October 28, 2009.

 

            On February 13, 2007 Mahathir called on the KLWCC to prepare a case against Bush and Blair whom he held responsible for waging aggressive warfare against Iraq. Mahathir, an outspoken critic of the Iraq War and its aftermath, argued at the time that there existed a need for an alternative judicial forum to the ICC, which was unwilling to indict Western leaders, and he was in effect insisting that no leader should any longer be able to escape accountability for such crimes against nations and peoples. He acknowledged with savage irony the limits of his proposed initiative: “We cannot arrest them, we cannot detain them, and we cannot hang them the way they hanged Saddam Hussein.” Mahathir also contended that “The one punishment that most leaders are afraid of is to go down in history with a certain label attached to them..In history books they should be written down as war criminals and this is the kind of punishment we can make to them.” With this remark Mahathir prefigured the KLWCC register of war criminals that has inscribed the names of those convicted by the KLWCT. Will it matter?

Does such a listing have traction in our world? Will future leaders even know about such a stigmatizing procedure? I think civil society is challenged to

do its best to build ‘negative’ monuments in the public squares of global consciousness constructed with a deliberate intent to disgrace those guilty of crimes against peace and crimes against humanity. For too long our public squares have been adorned with heroes of war!

 

            In his 2007 statement Mahathir promised that a future KLWCT would not in his words be “like the ‘kangaroo court’ that tried Saddam.” Truly, the courtroom proceedings against Saddam Hussein was a sham trial excluding much relevant evidence, disallowing any meaningful defense, culminating in a grotesque and discrediting execution. Saddam Hussein was subject to prosecution for multiple crimes against humanity, as well crimes against the peace, but the formally ‘correct’ trappings of a trial could not obscure the fact that this was a disgraceful instance of ‘victors’ justice. Of course, the media, to the extent that it notices civil society initiatives at all condemns them in precisely the same rhetoric that Mahathir used to attack the Saddam trial, insisting that the KLWCT is ‘a kangaroo court,’ ‘a circus,’ a theater piece with pre-assigned roles.

 

            The KLWCT did I think make a mistake by establishing a defense team for Bush and Blair, and then failing to present their best possible arguments. Instead, a sheepish defense based on their acknowledging human failings for engaging in criminal conduct did create an impression that this ‘tribunal’ was not assessing the legal merits of the charges, but merely in reinforcing the preordained guilt of these particular individuals. In reporting on the defense effort, the following excerpt is illustrative of this self-discrediting as aspect of the approach taken by the KLWCT: “Lead Defense Counsel continued, ‘Had George W. Bush said  ‘we know who you are, we know what you did, and we forgive you,’ the world could have been a much different place.  But, instead, Afghanistan, Iraq, Guantanamo happened.  We are fallible human beings.  We make mistakes. And the Defense stated that the defense of Bush and Blair defense is that the accused ‘are human.’” Such a mock atonement, which does not correspond with the continuing effort of these former leaders to justify their Iraq War policy, was entirely inappropriate and erodes both the persuasiveness and credibility of the undertaking. It may be that an empty chair would have been the most suitable way to acknowledge the absence of the defendants from the courtroom, despite being given an opportunity to

present their best defense, or if it was decided to mount a defense on their behalf, then it should have done as skillfully and persuasively as possible.

The KLWCT has already announced a subsequent session devoted to the torture allegations directed at such American political leaders as former Vice President, Dick Cheney, and former Secretary of Defense, Donald Rumsfeld. Hopefully, the question of how to handle absent defendants will be handled in a better manner. The basic choice is whether to mount a genuine defense or to forego a defense on the belief that the purpose of the tribunal is to document the allegations and to pass judgment in overcome the refusal of governmental and inter-governmental judicial institutions to address such geopolitically sensitive issues. It is not clear whether the KLWCT effort to imitate the criminal procedures of tribunals constituted by the state system if the best model for these civil society initiatives. Perhaps, it is time to evolve a distinctive language, norms, institutions, and procedures that

reflect both the populist foundations of a jurisprudence of conscience.

 

            Although receiving extensive local coverage, Western media without exception has ignored this proceeding against Bush and Blair, presumably considering it as irrelevant and a travesty on the law, while giving considerable attention to the almost concurrent UN-backed Cambodia War Crimes Tribunal prosecuting surviving Khmer Rouge operatives accused of genocidal behavior in the 1970s. For the global media, the auspices make all the difference.

 

 

Universal Jurisdiction

 

            The KLWCT did not occur entirely in a jurisprudential vacuum. It has long been acknowledged that domestic criminal courts can exercise Universal Jurisdiction for crimes of state wherever these may occur, although usually only if the accused individuals are physically present in the court. In American law the Alien Tort Claims Act allows civil actions provided personal jurisdiction of the defendant is obtained for crimes such as torture committed outside of the United States. The most influential example was the 1980 Filartiga decision awarding damages to a victim of torture in autocratic Paraguay (Filartiga v. Peña 620 F2d 876). That is, there is a sense that national tribunals have the legal authority to prosecute individuals accused of war crimes wherever in the world the alleged criminality took place. The underlying legal theory is based on the recognition of the limited capacity of international criminal trials to impose accountability in a manner that is not entirely dictated by geopolitical priorities and reflective of a logic of impunity. In this regard, UJ has the potential to treat equals equally, and is very threatening to the Kissingers and Rumsfelds of this world, who have curtailed their travel schedules. The United States and Israel have used their diplomatic leverage to roll back UJ authority in Europe, especially the United Kingdom and Belgium.

 

 

The Move to Civil Society Tribunals

 

            To a certain extent, the KLWCT is taking a parallel path to criminal accountability. It does not purport to have the capacity to exert bodily punishment or impose a financial penalty, and rather stakes its claims to effectiveness on publicity, education, and symbolic justice. Such initiatives have been undertaken from time to time since the Russell Tribunal of 1966-67 to address criminal allegations arising out of the Vietnam War whenever there exists public outrage and an absence of an appropriate response by governments or the institutions of international society. The Lelio Basso Foundation in Rome established in 1976 a Permanent Peoples Tribunal (PPT) that generalized on the Russell experience. It was founded on the belief that there was an urgent need to fill the institutional gap in the administration of justice worldwide that resulted from geopolitical manipulation and resulting formal legal regimes of ‘double standards.’ Over the next several decades, the PPT addressed a series of issues ranging from allegations of American intervention in Central America and Soviet intervention in Afghanistan to contentions about the denial of human rights in the Marcos dictatorship in the Philippines, the dispossession of Indian communities in Amazonia, and the denial of the right of self-determination to the Puerto Rican people.

 

            The most direct precedent for KLWCT was World Tribunal on Iraq held in Istanbul (WTI) in 2005, culminating a worldwide series of hearings carried on between 2003-2005 on various aspects of the Iraq War. As with KLWCT it also focused on the alleged criminality of those who embarked on the Iraq War. WTI proceedings featured many expert witnesses, and produced a judgment that condemned Bush and Blair among others, and called for a variety of symbolic and societal implementation measures. The jury Declaration of Conscience included this general language: “The invasion and occupation of Iraq was and is illegal. The reasons given by the US and UK governments for the invasion and occupation of Iraq in March 2003 have proven to be false. Much evidence supports the conclusion that a major motive for the war was to control and dominate the Middle East and its vast reserves of oil as a part of the US drive for global hegemony… In pursuit of their agenda of empire, the Bush and Blair governments blatantly ignored the massive opposition to the war expressed by millions of people around the world. They embarked upon one of the most unjust, immoral, and cowardly wars in history.” Unlike KLWCT the tone and substance of the formal outcome of the Iraq War Tribunal was moral and political rather than strictly legal, despite the legal framing of the inquiry. For a full account see Muge Gursoy Sokmen, World Tribunal on Iraq: Making the Case Against War (2008).

 

Justifying Tribunals of Popular Justice and Public Conscience

 

            Two weeks before the KLWCT, a comparable initiative in South Africa was considering allegations of apartheid directed at Israel in relation to dispossession of Palestinians and the occupation of a portion of historic Palestine (Russell Tribunal on Palestine, South African Session, 5-7 November 2011). All these ‘juridical’ events had one thing in common: the world system of states and institutions was unwilling to look a particular set of facts in the eye, and respond effectively to what many qualified and concerned persons believed to be a gross historical and actual circumstance of injustice. In this regard there was an intense ethical and political motivation behind these civil society initiatives that invoked the authority of law. But do these initiatives really qualify as ‘law’? A response to such a question depends on whether the formal procedures of sovereign states, and their indirect progeny—international institutions—are given a monopoly over the legal administration of justice. I would side with those that believe that people are the ultimate source of legal authority, and have the right to act on their own when governmental procedures, as in these situations, are so inhibited by geopolitics that they fail to address severe violations of international law.

 

            Beyond this, we should not neglect the documentary record compiled by these civil society initiatives operating with meager resources. Their allegations are almost always exhibit an objective understanding of available evidence and applicable law, although unlike governmental procedures this assessment is effectively made prior to the initiation of the proceeding. It is this advance assurance of criminality that provides the motivation for making the formidable organizational and fundraising effort needed to bring such an initiative into play. But is this advance knowledge of the outcome so different from war crimes proceedings under governmental auspices? Indictments are made in high profile war crimes cases only when the evidence of guilt is overwhelming and decisive, and the outcome of adjudication is known as a matter of virtual certainty before the proceedings commence. In both instances the tribunal is not really trying to determine guilt or innocence, but rather is intent on providing the evidence and reasoning that validates and illuminates a verdict of guilt and resulting recommendations in one instance and criminal punishment in the other. It is of course impossible for civil society tribunals to enforce their outcomes in any conventional sense. Their challenge is rather to disseminate the judgment as widely and effectively as possible. A PPT publication in book form of its extensive testimony and evidence providing the ethical, factual, and legal rationale for its verdict proved sometimes to be surprisingly influential. This was reportedly the case in exposing and generating oppositional activism in the Philippines in the early 1980s during the latter years of the Marcos regime.

 

The Legalism of the KLWCT

 

            The KLWCT has its own distinctive identity. First of all, the imprint of an influential former head of state in the country where the tribunal was convened gave the whole undertaking a quasi-governmental character. It also took account of Mahathir’s wider campaign against war in general. Secondly, the assessing body of the tribunal was composed of five distinguished jurists, including judges, from Malaysia imparting an additional sense of professionalism. The Chief Judge was Abdel Kadir Salaiman, a former judge of Malaysia’s federal court. Two other persons who were announced as judges were recused at the outset of the proceedings, one because of supposed bias associated with prior involvement in a similar proceeding, and another due to illness. Thirdly, there was a competent defense team that presented arguments intended to exonerate the defendants Bush and Blair, although the quality of the legal arguments offered was not as cogent as the evidence allowed.

 

            Fourthly, the tribunal operated in rather strict accordance with a charter that had been earlier adopted by the KLWCC, and imparted a legalistic tone to the proceedings. It is this claim of legalism that is the most distinctive feature of the KLWCT in relation to comparable undertakings that rely more on an unprofessional and loose application of law by widely known moral authority personalities and culturally prominent figures who make no pretense of familiarities with the technicalities of legal procedure and the fine points of substantive law. In this respect the Iraq War Tribunal (IWT) held in Istanbul in 2005 was more characteristic, pronouncing on the law and offering recommendations on the basis of a politically and morally oriented assessment of evidence by a jury of conscience presided over by the acclaimed Indian writer and activist Arundhati Roy and composed of a range of persons with notable public achievements, but without claims to expert knowledge of the relevant law, although extensive testimony by experts in international law did give a persuasive backing to the allegations of criminality. Also unlike KLWCT, the IWT mad no pretense of offering a defense to the charges.

 

Tribunals of ‘Conscience’ or of ‘Law’?

 

            It raises the question for populist jurisprudence as to whether ‘conscience’ or ‘law’ is the preferred and more influential grounding for this kind of non-governmental initiative. In neither case, does the statist-oriented mainstream media pause to give attention, even critical attention. In this regard, only populist democratic forces with a cosmopolitan vision will find such outcomes as Kuala Lumpur notable moves toward the establishment of what Derrida called the ‘democracy to come.’ Whether such forces will become numerous and vocal enough remains uncertain. One possible road to greater influence would be to make more imaginative uses of social networking potentials to inform, explain, educate, and persuade.

This recent session of the Kuala Lumpur War Crimes Tribunal offers a devastating critique of the persisting failures of international criminal law mechanisms of accountability to administer justice justly, that is, without the filters of impunity provided by existing hierarchies of hard power. So whatever the shortcomings of the KLWCT it definitely moved to close the criminal justice gap that now protects what might be called ‘geopolitical criminals’ from accountability for their crimes against peace and crimes against humanity, and this is a move, however haltingly, toward global justice and the global rule of law.

 

             

Toward A Jurisprudence of Conscience

26 Nov

Ever since German and Japanese surviving leaders were prosecuted after World War II at Nuremberg and Tokyo, there has been a wide abyss separating the drive for criminal accountability on the part of those who commit crimes against peace, crimes against humanity, war crimes from the realities of world politics. The law is supposed to push toward consistency of application, with the greatest importance attached to holding accountable those with the greatest power and wealth. The realities of world politics move in the opposite direction, exempting from criminal accountability those political actors that play dominant roles. In a sense the pattern was encoded in the seminal undertakings at Nuremberg and Tokyo that assumed the partially discrediting form of ‘victors’ justice.’ Surely the indiscriminate bombings of German and Japanese cities by Allied bomber fleets and the dropping of atomic bombs on Hiroshima and Nagasaki were ‘crimes’ that should have been investigated and punished if the tribunals had been fully ‘legal’ in their operations. It was the case, especially in Tokyo, that the tribunal allowed defendants to be represented by competent lawyers and that the judges assessed fairly the evidence alleging criminality, producing dissenting opinions in the Japanese proceedings and there was an acquittal at Nuremberg. In effect, there was a measure of procedural fairness in these trials. Without doubt those who were accused of crimes did engage in activity that was legally permissible and important for the future of world order to criminalize through findings of guilt and impositions of punishment, but this outcome was flawed to the extent that victors were not subject to comparable standards of accountability.

There was a second message arising from these trials: that winning side by conducting trials of this kind takes advantage of the opportunity to reinforce claims as to the justice of historical verdicts by pronouncing on the criminality of losers while overlooking the criminality of victors.  There was also a third message that tries to overcome the flaw of double standards. It has been called ‘the Nuremberg promise,’ and involves a commitment by the victors in the future to abide by the norms and procedures used to punish the German and Japanese surviving military and political leaders. In effect, to correct this flaw associated with victors’ justice by making criminal accountability in the future a matter of law applicable to all rather than a consequence of the outcome of wars or a reflection of geopolitical hierarchy.

The Chief Prosecutor at Nuremberg, Justice Robert Jackson (excused temporarily from serving as a member of the U.S. Supreme Court), gave this promise an enduring relevance in his official statement to the court: “If certain acts and violations of treaties are crimes, they are crimes whether the United  States does them or whether Germany does them. We are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.” These words are repeatedly quoted by peace activists, yet ignored by political leaders who took no notice of either the original flaw at Nuremberg or the obligation to remove it. Since 1945 crimes by the victors in conflict have continued to be overlooked by international criminal law, while prosecutions reflecting geopolitical leverage have kept happening without any concerted intergovernmental or UN effort to correct the imbalance. Since the end of the Cold War implementation of criminal responsibility has been increasingly imposed on losers in world politics, including such leaders as Slobadan Milosevic, Saddam Hussein, and Muammar Qaddafi each of whom were deposed by Western military force, and either summarily executed or prosecuted.

This dual pattern of criminal accountability that cannot be fully reconciled with law or legitimacy has given rise to several reformist efforts. Civil society and some governments have favored a less imperfect legalization of criminal accountability, and raised liberal hopes by unexpectedly achieving the establishment of the International Criminal Court in 2002 through the extraordinary efforts of a global coalition of NGOs and the commitment of a group of middle powers. Fearful of losing their impunity geopolitical heavyweights such as the United States, China, India, and Russia have refused to sign on to the ICC. Yet this and other formal initiatives have not yet seriously impinged on the hierarchal realities of world politics, which continue to exhibit an embrace of the Melian ethos when it comes to criminal accountability: “the strong do what they will, the weak do what they must.” Such an ethos marked, for Thucydides, unmistakeable evidence of Athenian decline, but for contemporary realists a different reading has been prevalent, underpinning political realism, contending that hard power calls the shots in history, and the losers have no choice but to cope as best they can. Double standards persist: the evildoers in Africa are targets of prosecutors, but those in the West that wage aggressive war or mandate torture as national policies continue to enjoy impunity as far as formal legal proceedings are concerned.

The existence of double standards is part of the deep structure of world politics. It was even given constitutional status by being written into the Charter of the United Nations that permits the five permanent members of the UN Security Council, that is the winners in 1945, to exercise a veto over any decision affecting the peace and security of the world, thereby exempting the world’s most dangerous states, being the most militarily powerful and expansionist, from any obligation to uphold international law. Such a veto power, while sounding the death knell for the UN in its core role of war prevention based on law rather than geopolitics, is probably responsible for keeping the Organization together through times of intense geopolitical conflict. Without the veto, undoubtedly the West would

have managed to push the Soviet Union and China out the door during the Cold War years, and the UN would have disintegrated in the manner of the League of Nations, which after the end of World War I converted Woodrow Wilson’s dream into a nightmare.  Beyond this, even seen through a geopolitical optic, the anachronistic character of the West-centric Security Council is a remnant of the colonial era. 2011 is not 1945, but the difficulty of achieving constitutional reform means that India, Brazil, Turkey, Indonesia, and South Africa seem destined to remain permanent ladies in waiting as the UN goes about its serious male business. What this means for UN authority, including its sponsorship of the politics of individual criminal accountability, is that all that is ‘legal’ is not necessarily ‘legitimate.’

My argument seeks to make two main points: first, double standards pervade the application of international criminal law eroding its authority and legitimacy; and secondly, those geopolitical hierarchies that are embedded in the UN framework lose their authority and legitimacy by not adapting to changing times and conditions, especially the collapse of the colonial order and the rise of non-Western centers of soft and hard power.

There are different kinds of efforts to close this gap between the legal and the legitimate in relation to the criminality of political leaders and military commanders. One move is at the level of the sovereign state, which is to encourage the domestic criminal law to extend its reach to cover international crimes. Such authority is known as Universal Jurisdiction (UJ), a hallowed effort by states to overcome the enforcement weaknesses of international law, initially developed to deal with the crime of piracy, interpreted as a crime against the whole world. Many liberal democracies in particular have regarded themselves as agents of the international legal order, endowing their judicial system with the authority to apprehend and prosecute those viewed as criminally responsible for crimes of state. The legislating of UJ represented a strong tendency during the latter half of the twentieth century in the liberal democracies, especially in Western Europe. This development reached public awareness in relation to the dramatic 1998 detention in Britain of Augusto Pinochet, former ruler of Chile, in response to an extradition request from Spain where criminal charges had been judicially approved. The ambit of UJ is wider than its formal implementation as its mere threat is intimidating, leading those prominent individuals who might be detained and charged to avoid visits to countries where such claims might be plausibly made. As might be expected, UJ gave rise to a vigorous geopolitical campaign of pushback, especially by the governments of the United States and Israel reacted with most fear to this prospect of criminal apprehension by foreign national courts. As a result of intense pressures, several of the European UJ states have rolled back their legislation so as to calm the worries of travelers with tainted records of public service!

There is another approach to spreading the net of criminal accountability that has been taken, remains controversial, and yet seems responsive to the current global atmosphere of populist discontent. It involves claims by civil society, by the peoples of the world, to establish institutions and procedures designed to close the gap between law and legitimacy in relation to the application of international criminal law. Such initiatives are appropriately traced back to the 1966-67 establishment of the Bertrand Russell International Criminal Tribunal that examined charges of aggression and war crimes associated with the American role in the Vietnam War. The charges were weighed by a distinguished jury composed of moral and cultural authority figures chaired by Jean-Paul Sartre. The Russell Tribunal was derided at the time as a ‘kangeroo court’ or a ‘circus’ because its conclusions could be accurately anticipated in advance, its authority was self-proclaimed and without governmental approval, it had no control over those accused, and its capabilities fell far short of enforcement. What was overlooked in such criticism was the degree to which this dismissal of the Russell experiment reflected the monopolistic and self-serving claims of the state and state system to control the administration of law, ignoring the contrary claims of society to have law administered fairly in accord with justice, at least symbolically. Also ignored by critics was the fact that only such initiatives could overcome the blackout of truth achieved by the geopolitics of impunity. The Russell Tribunal may not have been ‘legal’ as understood from conventional governmental perspectives, but it was ‘legitimate’ in responding to double standards, by calling attention to massive crimes and dangerous criminals who otherwise enjoy a free pass, and by providing a reliable and comprehensive narrative account of criminal patterns of wrongdoing that destroy or disrupt the lives of entire societies and millions of people. As it happens, these societal initiatives require a great effort, and only occur where the criminality seems severe and extreme, and where a geopolitical mobilization precludes inquiry by established institutions of criminal law.

It is against this background that we understand a steady stream of initiatives that build upon the Russell experience. Starting in 1979, the Basso Foundation in Rome sponsored a series of such proceedings under the rubric of the Permanent Peoples Tribunal that explored a wide variety of unattended criminal wrongs, including dispossession of indigenous peoples, the Marcos dictatorship, Armenian massacres, self-determination claims of oppressed peoples.  In 2005 the Istanbul World Tribunal on Iraq inquired into the claims of aggression, crimes against humanity, and war crimes associated with the U.S./UK invasion and occupation of Iraq, commencing in 2003, causing as many as one million Iraqis to lose their lives, and several million to be permanently displaced from home and country. In the last several weeks the Russell Tribunal on Palestine, a direct institutional descendant of the original undertaking, held a session in South Africa to investigate charges of apartheid, as a crime against humanity, being made against Israel. In a few days, the Kuala Lumpur War Crimes Tribunal will launch an inquiry into charges of criminality made against George W. Bush and Tony Blair for their roles in planning, initiating, and prosecuting the Iraq War, to be followed a year later by a subsequent inquiry into torture charges made against Dick Cheney, Donald Rumsfeld, and Alberto Gonzales. I intend to write subsequently about each of these proceedings.

Without doubt such societal efforts to bring at large war criminals to symbolic justice should become a feature of the growing demand around the world for real democracy sustained by a rule of law that does not exempt from responsibility the rich and powerful whether they are acting internally or internationally.

Language, Law, and Truth

21 Nov

 

“The language marches in step with the executioners.

  Therefore we must get a new language.” 

                       Tomas Tranströmer, Night Duty

 

            Marjorie Cohn, a respected progressive commentator on the use and abuse of international law during the past decade, notes with justifiable horror the willingness of Republican candidates for president to endorse torture as an acceptable instrument of counterterrorism. [Cohn, “US Presidential Elections: GOP Candidates Advocate Torture,” Nov. 19, 2011] Rick Perry, one leading Republican presidential contender who is now governor of Texas, put his support for torture in typically crude language: “This is war. That’s what happens in war.” The most direct endorsement was made by Herb Cain, a businessman who repeatedly demonstrates his scant knowledge of foreign policy issues, said with sprightly ignorance of waterboarding during a recent TV debate among the Republican candidates, “I don’t see it as torture. I see it as enhanced interrogation technique.” Not to be left behind in this rather alarming Republican horserace for the presidential nomination, Michelle Bachmann, attempted to give a pragmatic twist to the discussion by claiming (contrary to the evidence that torture often turns up information that is misleading and generally less useful than permissible forms of interrogation) that waterboarding is an effective means to gain information, and that as a patriot she would not hesitate to use such a technique to protect the country against its enemies. The lead candidate in opposition to Barrack Obama at this time in the November 2012 presidential election, Mitt Romney, also let it be slyly known that he shares the view that waterboarding is not torture: “Enhanced interrogation techniques have to be used. Not torture, but enhanced interrogation, yes.”

            Here we have direct examples of the dirty language games being played at great costs to the moral standing of the nation, its people, and its government. Torture is not torture if it is not called torture! Of course, in the background standing tall are George W. Bush, Dick Cheney, Donald Rumsfeld, John Yoo, and others who during the Bush presidency invented this trick designed to make torturers and their minders sleep well at night. For these unindicted war criminals, it was enough to give an unacceptably narrow definition of the legal crime of ‘torture,’ which allowed them to retain their innocence and at the same time brag about using waterboarding to save American lives, sometimes done over 100 times to a particular detainee. This Republican revival of a pro-torture argument is particularly discouraging because it seems to rest on an extremely distressing assessment of American public opinion as favorably impressed by the brutality and lawlessness of a continuing reliance on waterboarding and other forms of ‘enhance interrogation.’ If this assessment is correct it confirms the impression widespread in the world that not only has America lost its way, but has also mortgaged its soul!

            As Professor Cohn tells us, President Obama reaffirmed that waterboarding is torture, an opinion proclaimed ever since his presidential campaign in 2008, and bolstered by an insistence that since in office he has  unconditionally repudiated torture as conventionally understood. His language is instructive, but in its own way misleading: “Waterboarding is torture. Anybody that has actually read about it and understands the practice of waterboarding would say that it is torture—and that’s not something we do, period.” This renewed repudiation of waterboarding is welcome, as is the insistence on not distorting the language so as to allow those acting on behalf of the government to abuse physically and mentally persons held in detention, and even to do so with a relatively good conscience.

            But if waterboarding is torture, and Mr. Obama is true to his wider pledge to implement the rule of law during his presidency, why does he not allow investigations of the criminality on the part of his predecessors in office who acknowledged (‘confessed’) to the crime? In effect, a serious crime was repeatedly committed by the highest elected officials, damaging badly the reputation of the United States, and yet the political will to uphold the law is evidently not a feature of the Obama presidency, which early on asserted that it wanted to look forward not backward when it came to implementing law. To put it mildly, this is a peculiar ‘enforcement’ strategy that seems indistinguishable from non-enforcement! Imagine if a similar impunity was granted to common criminals for past murders and rapes! Imagine the Republican outrage! What is worse, as the comments of Republican candidates vividly reveals, this spirit of non-implementation keeps the virus of torture alive in the American body politic.

            In the good old days of the Cold War there also occurred a distressing reliance on torture and assassination, often entrusted to the CIA section on covert operations carried out overseas, well-documented and analyzed by Alfred McCoy in his book Question of Torture: CIA Interrogations, from the Cold War to the War on Terror (2006), but this behavior was kept secret, partly because it was known to be indecent and unlawful. Such a use of secrecy does not immunize the practice of torture from legal accountability had the political will and capability existed, which it did not, but it at least manifests a concern that such behavior if revealed would generate opposition and moral disgust. In the post-9/11 world, at least here in the United States, that concern and disgust while still present among urban liberals are much attenuated, which means the barriers to secret wrongdoing are likely to be virtually non-existent. And if one of these Republican torture advocates should be elected next November then it would seem likely to initiate an open season for a new round of torture undertaken beneath the feel good banner of ‘enhanced interrogation.’ At least, we can take some tiny comfort from the fact that even torture advocates still rely on this canopy of language to disguise the nature of their behavior. 

            Of course, it is easy for me to pontificate self-righteously when not faced with the dilemmas of governance. It was undoubtedly true that any attempt to impose standards of accountability on the Bush presidency would have led to an acrimonious national debate, or worse, and produced a deepening of the polarities already hamstringing the formation of public policy in the country. Yet for those who seek justice and truth in politics, such a law-oriented course of action would have been exhibited a genuine commitment to American values, and have gone a long way to demonstrate that the discontinuities between the Bush and Obama presidencies were more than halfway gestures.If a law-based democracy is ever to approximate reality, we the citizens must insist that the political risks of truth-telling be taken, that torture in our name, whether present, past, or future is totally unacceptable and will be punished no matter who turns out to be the culprit.                        

            In his speech accepting the Nobel Peace Prize in 2009 President Obama said strikingly: “Those who claim to respect international law cannot avert their eyes when those laws are flouted..The same principle applies to those who violate international law by brutalizing their own people.” But is not this precisely what Obama has been doing by averting his eyes from the crime of torture committed by his predecessors in office? This evasion of the solemn responsibility to implement international criminal law as it pertains to torture, even to investigate allegations of criminality, is accentuated by taking other backward steps suggesting ambivalence at best. Obama refused to authorize the formation a truth and reconciliation commission with a mandate to investigate past reliance on torture, which might have produced clarity, if not closure, on the issue.  As well, the Justice Department has shockingly intervened in judicial settings to prevent civil law suits by former Guantanamo detainees seeking damages from the abuse they endured on the flimsy, and morally unacceptable, grounds that as aliens they lacked clear constitutional rights, as aliens, not to be tortured. [For detailed indictment of the Obama approach to torture see Eric Lewis, “Torture’s Future,” NY Times, Nov. 21, 2011]

            In the same Nobel speech Obama explained his outlook on the relevance of law to warfare: “Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct. And even as we confront a vicious adversary that abides by no rules, I believe that the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength. That is why I prohibited torture. That is why I ordered the prison at Guantanamo Bay closed. And that is why I have reaffirmed America’s commitment to abide by the Geneva Conventions. We lose ourselves when we compromise the very ideals that we fight to defend. And we honor those ideals by upholding them not just when it is easy, but when it is hard.” Again, performance trumps rhetoric, and from this perspective Obama seems both hypocritical and cynical, not just in relation to torture, but more generally with respect to international law. 

            For the Obama presidency, the debate about the escalated use of attack drones to target suspected terrorists wherever they might be located in the world occupies a comparable space to that of torture during the Bush presidency. And what is revealing, is the similarity of manner by which the Obama people bring law to bear on this controversial use of force that has such broad implications for the future of warfare. More than their Bush counterparts, such luminaries as Harold Koh, Legal Advisor to the Secretary of State, and John Brennan, the top counterterrorist advisor to the president, emphasize the degree to which adherence to the rule of law in the conduct of American security policy is a priority that guides behavior because it reflects American values, and also works out better in the combat zones because it builds unity at home, strengthens cooperation abroad, and conveys the differences between ‘us’ (law-abiding on principled grounds) and ‘them’ (engaging in deliberate violence against civilians).

 

            But then this major premise of adherence to law is immediately contradicted by the minor premise: doing what is militarily desirable and possible to counter alleged terrorist threats associated with al Qaeda and the 9/11 experience, and this means targeted assassinations in foreign countries far from the hot battlefield, understating of civilian casualties, ignoring the frightening wider effects of drone attacks on the overall sense of societal security in a target zone, broadly defining who constitutes a threat, and a refusal to lift the veil of secrecy from drone operations to determine whether intelligence was reliable as to target and supposed threat. It is lethal behavior by the United States carried on in foreign countries, with ‘consent’ publicly denied or absent, generally undertaken by a CIA civilian operative sitting in an air conditioned office, converting ‘war’ into a risk-free process that for the drone-minder resembles a video game, and since there is no public accountability, there is also no burden of responsibility for negligence or even malice. Does not this represent an extreme stretching of the international law with respect to the right of self-defense? It also is a blatant denial of  ‘the right to life,’ an imposition of extra-judicial capital punishment, and as such, an affront to legal standards associated with international human rights.  As well it entails an utter lack of respect for the sovereign rights of other states, and in its totality, a contorted ‘legality’ put forth by government legal experts on behalf of drone warfare in a manner unnervingly similar to what the Bush legal operatives sought to do with regard to torture.

            It may be time to acknowledge that governmental lawlessness in foreign policy has become a bipartisan reality for the United States Government, and that the face in the White House or the political party in control, while not yet irrelevant, is a matter of secondary interest, at least to those who are drone targets or torture victims. 

            It may be past time to say that such a stretching of the language of law is an insult to our intelligence and a subversion of our morality as a people and nation. When ‘law’ becomes a synonym for ‘crime’ we know that power corrupts all the way to the top of the governmental pyramid!

Criminalizing Diplomacy: Fanning the Flames of the Iran War Option

11 Nov

 

            How many times have we heard in recent weeks either outright threats to attack Iran mainly emanating from Israel or the more muted posture adopted by the United States that leaves ‘all options’ on the table including ‘the military option’? What has Iran done to justify this frantic war-mongering in a strategic region that is sorting out the contradictory effects of the long Arab Spring and is the contested site of energy geopolitics that has replaced territory and minerals as the core issue of world politics?

 

            As a matter of historical context, it is worth observing that the Western military interventions of recent years, Iraq and Libya, were both in oil-producing countries, devastating the country to achieve regime change, which remains the central tenet of the neocon/Netanyahu vision for a reconfiguration of power in the Middle East. It follows that Iran remains the only oil producer in the region that refuses to play nicely with West, and has been sanctioned to some degree ever since it achieved an anti-Western regime change back in 1979. In this setting of pre-war hysteria—pouring the fuel of rumor and threat on the fire of belligerent diplomacy—I have no intention of discounting the grievances of those who bravely opposed the theocratic regime from within after the fraudulent elections of June 2009 in the shape of the repressed Green Movement, but it is beside the point in the present debate.

 

            Why talk of oil if the war momentum is explicitly preoccupied with the alleged effort by Iran to obtain nuclear weapons? Let the facts speak for themselves. Where there is oil and an anti-Western government in power, recourse to the military option follows, or at least an insistence on sanctions that aim to be crippling and regime-changing. Just as in Iraq, the smokescreen in 2003 were its stockpile of weapons of mass destruction, and when that war justifying scenario was discredited, democracy and human rights abruptly took over as the strategic rationale. Not to be overlooked, of course, was backroom Israeli pressures to destroy the Baghdad regime of Saddam Hussein,  as well as the oil, involving both favorable access to the oil fields and some leverage over pricing. We all need to be reminded over and over again that Western prosperity rested on cheap oil, and its future prospects crucially depend on reliable supplies of oil at moderate prices. We need to be reminded because as Donald Rumsfeld once reassured the world, ‘America doesn’t do empire.’ Really! Concerns about oil security in the future are the real unacknowlegeable threats to the security of the West!

 

            Such illicit interventionary diplomacy should be unmasked. For once we can look to Moscow for a benign clarification. The Russian Deputy Foreign Minister, Gennady Galitov, was quoted as follows: “The world community will see additional sanctions against Iran as an instrument of regime change in Tehran. We cannot accept this approach.” The plausibility of this interpretation is given further credibility by Iranian exile voices calling for targeting Iran’s central bank and currency with the avowed intention of bringing such hardship to the people of Iran as to mount destabilizing pressures from below on the Tehran government. The leader of the Green Movement, Mir Hossein Mousavi, has repeatedly spoken against international sanctions, insisting that they hurt the people of Iran and strengthen the hold of the government on the population. The struggle for Iranian self-determination must be waged by the Iranian people, not their self-interested patrons from without. Such patrons heeded in the Iraq case, and recently influential in the Libyan case as well, contribute to a war making process that leaves their country in shambles. True, the West is at first ready, but not able, to pick up the pieces. The result is continuous unresolved violent conflict, acute and widespread human insecurity, followed by eventual abandonment of the post-war reconstructive commitment. Iraq is tragically illustrative.

 

            As has been pointed out by some opponents of this war fever, Iran has not attacked another country in 200 years. As President Ahmadinejad recently informed Iranians in the city of Shahr-e Kord: “The Iranian nation is wise. It won’t build two bombs against the 20,000 you have.” The former heads of Israel’s Mossad, Meir Dagan and Efraim Halevy, confirm the view that Israel would not be seriously threatened even if it should turn out that Iran does come to possess a few nuclear weapons in the future. Their contention would be that such a nuclear capability would only pose a threat for Iran’s Sunni rivals, especially Saudi Arabia and Bahrain, as Israel would retain an overwhelming deterrent even without American backing. Of course, it is true that the Western alliance does not want any regional developments to destabilize its regional friends, no matter how autocratic and repressive. So much for the supposed Western embrace of the democratizing spirit of the Arab Spring! For hypocritical William Hague, the pro-Israeli Foreign Secretary of Great Britain to say that Iran’s nuclear program is threatening ‘to undermine’ the Arab Spring by ‘bringing about a nuclear arms race in the Middle East of the risk of conflict’ is obviously to point his finger in the wrong direction. There are also murmurs in the background, perhaps to shift attention away from Israeli war-mongering, to the effect that the real danger associated with Iranian acquisition of nuclear weapons is that Turkey and Saudi Arabia would follow suit.

 

            If these were the serious concerns of this kind there are other far better ways to proceed. Why is there no mention of Israel’s nuclear weapons arsenal, of Western unlawful assistance in helping Israel to cross the nuclear threshold covertly, of Israel being one of three important states in the world that has refused to become a party to the Nonproliferation Treaty, and of Israel’s refusal to discuss even the idea of a nuclear free zone in the Middle East that Iran has announced its readiness to join? If oil is the foremost reality of which we must not speak, then Israeli nuclearism is a close second. We understand that the Obama presidency has been reduced to silence, but why are no regional and global voices speaking on behalf of nuclear sanity?  Is Israel’s status as a nuclear weapons state as untouchable a feature of a dysfunctional system of global governance as the retention of Britain and France as two of five permanent members of the UN Security Council? Such sacred cows of an entrenched world order are dooming the 99% as much as the demons of Wall Street!

 

            And then there is a third reality of this deepening crisis of which we are blinkered by a compliant media not to notice: the total disregard in the public policy debate of international law that prohibits all non-defensive uses of force, including threats to do so. This core norm of the UN Charter set forth in the language of Article 2(4), reinforced by the International Court of Justice in the Nicaragua case in 1986, was built into the idea of Crimes Against Peace that served as the basis for indicting and convicting surviving German and Japanese leaders at the Nuremberg and Tokyo trials after World War II. There is not even a lawyerlike attempt to argue that Bush’s discredited doctrine of preemptive war applies to Iran, there is instead a presumed total irrelevance of international law to the policy debate. To discuss the military option as if not circumscribed by solemn legal commitments, while building the case that Iran is subject to attack because it has violated its NPT obligations as a state pledged not to acquire nuclear weapons, is double think emblazoned on the sky of hard power geopolitics. Accountability for the weak and vulnerable, discretion for the strong and mighty. It is this woeful message of street geopolitics that is being transmitted to the peoples of the world in this crisis-building moment.

 

            There is one final point. If ever there was an argument for the acquisition of nuclear weapons by Iran, the diplomacy of Israel and the West has fashioned it in a strong form. After all Iran is being constantly threatened with attack by states for more powerful than itself, and although it possesses retaliatory capacity, it is vulnerable to devastating attacks from sea, air, and land. Can we imagine a better set of conditions for acquiring nuclear weapons so as to deter an attack? If deterrence legitimates nuclear weapons for the West, why not for Iran? Would Iraq have been attacked in 2003 if it had a stockpile of nuclear weapons accompanied by delivery capacities? These questions point in two directions: the unacceptable two-tier structure of governance with respect to nuclear weaponry that the world has endured since the atomic bombs were dropped on Hiroshima and Nagasaki in 1945 and the imperative urgency of rejecting nuclear hegemony and oligarchy, and moving toward a negotiated nuclear disarmament treaty. There is no morally and legally acceptable or politically viable alternative to the abolition of all nuclear weapons as a global policy priority of utmost urgency.

Two Occupations

6 Nov

Two Occupations

 

            As someone who has witnessed the humiliations daily endured by Palestinians living decade after decade under ‘occupation’ the word occupation was for me an inalterably dirty word. I was especially conscious of occupation, especially prolonged occupation of the sort that Israel has imposed on Palestine as synonymous with ‘abuse’ and ‘oppression,’ having just completed intense discussions between leading Israeli and Palestinian voices for peace at an LSE workshop presided over by Mary Kaldor and Lakhdar Brahimi that seemed to have a single Archimedean point of consensus: ‘End the Occupation.’ Personally, I was not so content with such an outcome as it tended to narrow the Palestinian agenda to a kind of ‘land for peace’ formula, ignoring the plight of five million or so territorially dispossessed Palestinians living as refugees or exile, often enduring intolerable situations of vulnerability and deprivation that has continued for generations.

 

And then yesterday I visited ‘OCCUPY LONDON’ at the monumentally beautiful St. Paul’s Cathedral (#OccupyLSX) with some of the extraordinary young people who are making it happen, and quite possibly inventing a better future that seemed to be being enacted before my eyes. Ten days earlier I had a similar experience of exhilaration and hope after visiting Zuccotti Park (#OccupyWallSt) in New York City, witnessing a seemingly chaotic array of innovative synergies finding their common ground in nonviolently opposing what seems wrong in our society, economy, and state and envisioning and insisting upon what might be better, indeed much better. And what I took away is different from what I came with: I left these convivial spaces with an experience of joyful occupation. Of course, the joyful does not cancel out the dismal with respect to occupations, but it shows us that language is alive, grows with experience, and that parallel meanings can coexist even if the realities evoke contradictory ethical and political responses.

 

But also I had the further awakening through a conversation in one of the hospitality tents just outside St. Paul’s with a radiant young Indian woman. She was excited by what was happening around her, but was also worried that the goals of emancipation could not be achieved without new words clearly expressive of the vision of those gathered at these occupation sites. She was particularly concerned about the use of ‘democracy,’ which she felt had been spoiled by the shallowness and unrepresentative nature of her lived experience in democratic societies, and her disillusionment with political parties, campaigns, and elections, which remain the pillars of ‘democratic’ legitimacy. Even though the activists in the tents and on the steps of the cathedral tried to make clear their commitment to revolutionary change by speaking of ‘real democracy’ as gauged by accountability, transparency, participation, equality, justice, and human security in public arenas of decisions. As we spoke I wondered to myself, ‘was she asking too much?’ And then I thought, ‘without asking for the impossible there is no prospect of achieving the possible.’

 

During the conversation I tried my best to be responsive, although the assignment she gave me far exceeded my capabilities. To keep the conversation moving I asked timidly at one point ‘would you be more comfortable with livable politics?’ She smiled softly, obviously unconvinced, and so I tried again, ‘what about convivial politics?’ She liked this suggestion a bit better, or so it seemed, maybe appreciating my effort, but these words still did not capture for her the originality of what she was experiencing and desiring. Even though I disappointed her, I felt that we parted as friends for life. Such is the convivial atmosphere of magnetic energy that fills these occupied spaces with a contagious immediacy of hope.

 

My friend, Shimri, a core participant of the London movement, a vibrant personality of proven commitment, having spent two years in Israeli jails because he refused to serve in the Israeli Defense Forces, is totally preoccupied with what he labels as ‘global democracy,’ and was both my guide at London Occupy site, but also one of three lead organizers of the LSE workshops. He hopes to democratize the United Nations, while helping to light bonfires of expectation in all 900 tent cities around the world, and with his infectious energy he imparts a sense of plausibility to even the most distant horizons of desire. Shimri explains to me the process at work at St. Paul’s as total democracy: daily assembly meetings, no leaders, everyone present can veto any decision, volunteer for any task that is to done, all are entitled to speak, and a Wikipedia spirit of taking a variety of steps without any central guidance that give those participants food to eat, books to read (there is a donated lending library in one of the tents), lectures to attend. There is no hierarchy, no ego, no blueprint. It is a radical atmosphere that suggests what the inner reality of the Paris Commune might have been like, or differently, the optimism of the early counterculture in America during the 1960s. But things are different in 2011: above all, these occupations borrow extensively from the heroics of Tahrir Square, and more generally are a sequel to the Arab Spring, and there is more sense of unmanageable challenge associated with the failures of existing crisis managers (it happened that the disastrous G-20 meeting in Cannes was happening over this very weekend). This debt to Egypt is overtly acknowledged in different ways in London. For instance, Shimri has a big sign in front of his tent with the words ‘Global Mubarak,’ and across from the cathedral is a London street sign that looks like the real thing,

with the words ‘Tahrir Square.’ And in its way, it was the real thing. This was Tahrir Square! At least for now! In important respects Occupy London LSK also spreace across the ocean from #OccupyWallSt, and in substance resembles the greater preoccupation of the EuroAmerican protests with the failures of the economy rather than the oppressive burdens on the populace associated with autocratic rule. In this regard it is helpful not to think too literally about the Global Mubarak metaphor. Whatever else it makes the transnational link, and defers to a flow of influence from South to North, which is itself evidence of a decolonizaing of the colonial mind, a process that still has a long way to go!  

 

I came away with many reflections, but above all the fervent conviction that almost all of us would be far better off if these young people filling the squares around the world were put in charge of our collective future. I for one would rather live in their world than in the current G-20 world. For sure, there would be an end to war and militarism, the human footprint on the planet would be lightened, consumerism repudiated and defetishized, poverty would be overcome, voting would be done without taking national boundaries too seriously, accountability would be determined by a rule of law that treated equals equally. I also realized that this brave confrontation with the established order might yet be ruthlessly crushed if our current angels of entropy become threatened, and decide to turned loose their hooligan legions., recalling the bloody end of the Paris Commune or the sad fate of the idealistic Soviets that ironically were among the first victims of the Russian Revolution. But this look back at dashed hopes in the past was my momentary daytime nightmare that vanished from consciousness as soon as I awoke and looked around me at the bright eyes of those standing close by.

 

I will save some other commentary for a later time, and only write now that part of what was happening in these civic zones of engagement was the revalidation of the utopian imagination, a necessary ingredient of any transformative politics. If we are to find ‘solutions’ we all need quickly to liberate our imaginations from the tyranny of ‘the feasible.’ The ‘realists’ presently holding the reins of power are unknowingly inhabiting realms of fantasy while the train of history approaches the station named DOOM. The young people are coming to admit this grim realization, and for this the rest of us can be thankful, enough so to allow ourselves the momentary privilege of hope.

 

Also, it is important that this first global dispersed expression did not start in the West. Even after the collapse of colonialism, the West has run the world. This is beginning to change with America’s decline and Europe’s muddle. That the Arab popular movements should awaken the underclasses, the 99%, in the West is one of the strangest geopolitical occurrences of the last hundred years.

Almost anywhere else on the planet would have seemed a more plausible staging ground for the reinvention of transformative politics in a global setting. It also illustrated the irrelevance of 9/11 and Islamophobia to the priorities and tactics of globalization-from-below, or what might be called ‘moral globalization.’

 

 



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