‘Voluntary’ International Law and the Paris Agreement

16 Jan

 

Now that the celebrations by the diplomats have ended, it is time to take a hard look at what was and was not accomplished by the Paris Agreement. No one can deny that it was impressive to obtain agreement from all 195 participating countries, an outcome many doubted. A further achievement was the acceptance of the scientific consensus that global warming was an unprecedentedly severe global challenge that needed to be addressed with a sense of urgency and commitment by the world as a whole. Further, it was important that the agreement set forth in its text the ambitious goal of 1.5C degrees as the prudent ceiling for tolerable warming, while seeking to avoid an increase of 2C degrees, even while being aware that this latter would still result in serious additional harm but would be far less likely to be catastrophic than if emissions are allowed to increase without a global cap.

 

Worrisome Concerns

 Closer examination reveals several worrisome concerns. It is widely understood that international law is often ineffective because it lacks adequate means of enforcement when it prescribes behavior that obligates the parties. That is, international law is inherently weak because unable to enforce what is agreed to, but Paris carried this weakness further, by raising serious question as to whether anything at all had even been agreed. The Paris Agreement went to great lengths to avoid obligating the parties, making compliance with pledged reductions in carbon emissions an unmistakably voluntary undertaking. This is the core cause for doubt about what was agreed upon, raising the haunting question as to what emerged from Paris is even worth the paper upon which it is written. Only time will tell.

 

Prior to the Paris Agreement there were two models of an agreement process to address climate change. Both of these are now viewed as failures. There was the Kyoto Protocol of 1997 in which a mandatory treaty framework was negotiated resting on a sharply delineated division between developed countries that were required to make enumerated reductions in carbon emissions and the rest of the world that was under no obligation because their right to unrestricted development was affirmed. Then there was the Copenhagen Accord contrived on an ad hoc basis in 2009 mainly at the behest of the United States, a loose agreement reflecting American post-Kyoto concerns that the only viable international response to the threat of global warming was by way of obtaining a series of unverified voluntary pledges from national governments.

 

It is evident that in its central endeavor the Paris Agreement seeks to improve upon the Copenhagen model while rejecting the Kyoto model. In effect, the stability of an obligatory framework has been exchanged for the benefits of an inclusive arrangement that involves all countries, that is, weak on substance, strong on participation. What makes Paris seem a success whereas Copenhagen was written off as a dismal failure is partly atmospherics, or put more concretely, the skillful French management of the proceedings so as to create an impression of genuine collaboration and transparency. Also helpful was the American adoption of a low profile, operating behind the scenes, exerting the kinds of influence that did not create the sort of resentment that so badly marred the Copenhagen outcome.

 

This repudiation of the Kyoto approach is disturbing in some respects, but understandable, and even laudable, in others. Kyoto, although legally authoritative, only managed to gain the participation of states accounting for 12% of total emissions. This tradeoff between the two agreement models parallels the experience of the League of Nations that respected the sovereign equality of states, contrasting with the United Nations that privileges the five states that prevailed in World War II. The more idealistic League was a total failure because several crucial states, including the United States, refused to join, while the UN, although disappointing in relation to its war prevention record, has managed throughout its entire existence to achieve near universal participation. Even alienated and isolated states have valued the benefits of their UN membership and refrained over the decades from opting out of the UN. This experience supports the significant generalization that international lawmaking often does better when it is procedurally ambitious than when it tries to override and constrain sovereign discretion to act in areas perceived as matters of vital national interest by leading states. In the climate change context this choice can be further rationalized by an acknowledgement that the US Congress has the capacity to block any legally binding agreement, and without the United States as a participant the whole effort is wasted. It should be appreciated that the US Congress may be the only governmental site of influence in the world where a majority of its members reject the scientific consensus on climate change and gives aid and comfort to the deniers.

 

Can International Law Effective When Adherence is Voluntary?

 Although this voluntariness is problematic, it may not doom the Paris Agreement. Some non-obligatory international norms have produced important results, managing to obtain voluntary compliance, and even exceeding the original expectations of their supporters. Among many examples in international law, upholding the diplomatic immunity of ambassadors is a clear example of where the norm is unenforceable yet diplomats from small countries have almost always received the same protection over the centuries as those from the largest and most powerful countries. Why? It better serves the interests of the powerful to sustain a reliable framework of diplomatic interaction than to diminish the status of diplomats from weak states. From a different domain of international concern, we can point to rules of the road on the ocean designed to promote maritime safety. International law tends to be effective whenever compliance is more or less automatic. This can happen either because there is no significant incentive to violate what has been agreed upon or there are reciprocal gains achieved by maintaining reliable standards.

 

There are additional settings where international law is effective. One of the most prominent instances, although controversial, is the selective implementation of international norms prohibiting the acquisition of nuclear weapons. The United States acts as a geopolitical enforcer, and has been relatively successful in preventing those governments that it distrusts or opposes from acquiring the weaponry. The nonproliferation regime is defective from a rule of law perspective to the extent it is not applied equally to all non-nuclear states. Israel’s secret acquisition of nuclear weapons has been overlooked, while Iran’a nuclear program has received unprecedented scrutiny with a commitment to enforce nonproliferation by recourse to war if necessary. Beyond this the NPT regime became negotiable in 1968 only because the nuclear weapons states formally committed themselves to seek in good faith nuclear disarmament. Their failure to do so should have undermined the treaty from an international law point of view, but so far this refusal of compliance has been rhetorically noticed by non-nuclear states, but without producing a challenge to the agreement itself.

 

Paris Vulnerabilities

 

Part of the reason to be skeptical about the Paris Agreement is that the United States is unable to play the role of being a credible enforcer, and this means that there is no robust informal extra-legal pressure to comply. This weakness of the Paris arrangement is accentuated by several other factors:

            –the challenge of global warming is truly global in scope, yet the agreement reflects the aggregation of national interests. Its voluntary nature reflects the ethos of the lowest common denominator. International society can often cooperate to solve transnational problems, but it falters when the problem is truly global, especially as here where the various states have vastly different policy priorities, material circumstances, and divergent perceptions as to how fairly to apportion national responsibility for emission reductions and financial transfers;

            –many governments are constrained by mass poverty and low levels of development and seem likely to give priority to jobs and economic growth if facing economic pressures, making them also susceptible to manipulation by the private sector and international financial pressures;

            –the Paris Agreement seems particularly vulnerable to ‘the free rider problem,’ creating incentives for states to make minimum contributions while benefitting from the contributions of others; this is especially true in the climate change context since the problems are not correlated with international boundaries and the causal connections between emissions and harm are notoriously difficult to establish. This means that a state will benefit from systemic responses even if it fails to do its agreed part, while being only marginally protected by its own emission curbs;

            –often the success of a negotiated complex agreement is a result of diplomatic leadership, which has been a role that the United States Government has played in the period since 1945. The elaborate treaty establishing the public order of the oceans, one of the great success stories of international law, came about only after a decade of negotiations that were shaped by American leverage, persuading groups of states to accept concessions in exchange for benefits. For instance, the territorial sea off the coast of countries was expanded, and an exclusive economic zone was established, in exchange for preserving the freedom of the high seas for naval vessels. Because of the unevenness of national circumstances in relation to climate change the need for this kind of leadership would undoubtedly have led to a more robust agreement. This was politically impossible because the US Congress is opposed to any US national commitment with respect to climate change that results in any economic burden or commitment relating to energy policy, and the Executive Branch, despite its acceptance of the scientific consensus as to the severity of the climate change challenge, could not ignore this weakness of domestic support without suffering a humiliating rebuff as happened after Kyoto that seems more damaging to regulatory efforts than giving up an insistence on binding legal obligations;

            –without enforcement or even an obligation to comply, there are some circumstances where ‘naming and shaming’ create pressures can induce a fairly high level of compliance. The Paris Agreement by emphasizing the transparency of commitment, the monitoring of pledge fulfillment, and the reset opportunities given at five-year intervals would seem to create a situation where naming and shaming could partially compensate for the absence of formal compliance mechanisms. Unfortunately, governments of sovereign states are normally very reluctant to criticize each other in public space, absent hostile relations. The UN also refrains except in extreme cases from voicing criticism of the behavior of its members that names and shames.

 

The Waiting Game

 

Against this background, it becomes evident that the Paris Agreement should neither be celebrated nor rejected. It is a process that is only scheduled to go into effect in 2020, with an assessment period of five years, meaning that there will be no official audit as to the adequacy of the pledging approach until 2025. Even should the pledges on record be upheld, which seems unlikely, the trajectory relating to climate change points toward an increase in global warming by over 3C by the end of the century, far above the 1.5C recommended by experts, and exceeding the 2C degree ceiling that the Paris Agreement sets forth as a goal. This gap needs to be made visible to the peoples of the world, and steps taken to raise pledging expectations to a level of problem-solving credibility.

 

There are two perspectives that are each useful in evaluating the Paris Agreement. First, there is the problem-solving perspective that views the essential issue as adjusting energy policies to global warming prospects through cuts in carbon emissions and increased reliance on renewable forms of energy. The discussion above, as well as the inter-governmental text emerging from Paris, viewed climate change as a problem to be solved, with success or failure measured by reference to the rising of global mean average temperatures throughout the planet.

 

Secondly, there is the climate justice perspective that focuses on the fairness of the negotiated arrangement from the distribution of burdens and benefits, and by reference to those who are most vulnerable to global warming. Those most vulnerable are societies and regions that seem likely to become hotter than the average or have low-lying, heavily populated coastlines and lack the financial resources and technical knowhow to prevent and react in ways that minimize the damage. It is also the case that the 350 million indigenous peoples were unrepresented in Paris, and for various reasons are particularly exposed to the harmful effects of climate change. Issues related to pre-2020 ambition involving financing and control of emissions are also mentioned in the Preamble. Also Finally, Paris did not make any serious effort to represent, worry about, and take account of the rights of future generations.

 

Due to pressures mounted by the governments of vulnerable states and by the civil society groups, climate justice concerns were not totally ignored, being enumerated as a laundry list in the Preamble. These concerns focusing on human rights are not addressed in the operational provisions that are the heart of the Paris undertaking. Their relevance is, however, acknowledged in the Preamble to the Paris Agreement. Normally, the language of the Preamble of an international agreement is window-dressing, without substantive relevance. Here it is different. NGOs can invoke the language of the Preamble to hold governments accountable.

 

In the end, the fate of the planet will be decided by people, and not by governments. It is only by populist mechanisms of mobilization that the human and global interest will be articulated and protected. Governments can cooperate to promote common or overlapping shared interests, but where these national interests are so diverse and often contradictory, the aggregation of national interests is not capable of generating an agreement that adequately serves the human and global interest. This limitation of state-centric world order is magnified in relation to climate change because of the numerous disconnects between the locus of emissions and the locus of harm; only a globally constituted framing of the climate change challenge could produce an outcome that was satisfactory from both problem-solving and climate justice perspectives, and this will never be achieved by way of a Paris style meeting.

 

A responsible and equitable response to climate change after Paris depends on militant civil society activism that builds a transnational movement that both monitors the harms and the behavior of governments, but also focuses attention on the root causes of global warming: the capitalist drive for consumption, the militarist drive for dominance, and modernist drive toward

Technological solutions. Beyond this what is at stake is the recovery of the humane wisdom and spiritual consciousness of indigenous peoples that survival and happiness depended on respect for the natural surroundings. Of course, we should not romanticize the pre-modern or demonize the modern. What we need and should seek is a moral epistemology that reconnects knowledge with human values configured so as to achieve justice, sustainability, and the pleasures of ‘a good life’ (community, material needs, humane governance, spiritual alertness, opportunity and enlightenment). Such is the knowledge background needed to launch the revolution of our time.

 

On Ghada Ageel’s edited ISRAELI APARTHEID IN PALESTINE

11 Jan

 

(Prefatory Note: Ghada Ageel’s expertly edited Israeli Apartheid in Palestine: Hard Laws and Harder Experiences has just been published by the University of Albert Press. It is an important contribution to Palestinian studies with an especially welcome linking of activism, scholarly analysis, and experiential narrative, each a vital perspective represented by excellent chapter writers. Publishing information can be found at the following:

http://www.uap.ualberta.ca/titles/415-9781772120820-apartheid-in-palestine

I publish below my foreword to the volume as a further indication of why I encourage all those with an interest in this subject-matter to obtain the book]

 

 

Foreword (by Richard Falk)

 

From many points of view, the struggle between Jews and Arabs over historic Palestine that has gone on for almost a century, is at a critical juncture. For more than twenty years most hopes for a peaceful resolution of the conflict depended on a diplomatic framework agreed upon in Oslo and solemnized by the infamous 1993 White House handshake between Yitzhak Rabin and Yasser Arafat with a smiling Bill Clinton standing tall between these embattled leaders. More than a year has elapsed since the end of expectations that Oslo diplomacy is the solution given the collapse in April 2014 of the American attempt to induce the parties to negotiate directly that Secretary of John Kerry had dramatically declared to be ‘the last chance’ to realize the two-state solution.

 

This Oslo framework was so one-sided from the outset as to seem structurally incapable of ever producing a fair outcome, given the bisecting of Occupied Palestine, splitting the West Bank from Gaza, entrusting partisan United States with the honest broker role, failing even to affirm a Palestinian right of self-determination, and the exclusion of international law from the negotiations. This latter may have been most damaging bias of all, allowing the Israelis to continue their unlawful land grabbing encroachment on post-1967 Palestine (expanding settlements; building the separation barrier, and constructing a network of settler only roads) , with the U.S. using its geopolitical muscle to insulate Israel from any adverse consequences through the years.

 

So with Oslo in shambles, new tendencies on both sides are becoming evident.

Israeli internal politics that have been drifting further and further to the right, and seems on the verge of producing a consensus favoring a unilaterally imposed solution that will leave the Palestinians squeezed either into barren bantustans on the West Bank or incorporated into an Israeli one-state solution in which the best that they can hope for is to be treated decently as second-class citizens in a self-proclaimed Israeli ethnocracy. Beyond this, even these diminished democratic elements in the Israeli reality would be threatened by the prospects of a Palestinian majority, leading many prominent Israelis to throw their democratic pretensions under the bus of ethnic privilege. The Knesset signaled the adoption of such an approach when it elected Reuven Rivlin as President of Israel, a fierce advocate of a single Israeli state encompassing the entirety of Palestine. To be sure, liberal minded Israeli Zionists, among them Amos Oz, are worried by these developments, warning that however belatedly, Israel’s only hope for real peace is to accept

a viable Palestinian sovereign state on its borders, but it seems as if such concerns are politically irrelevant voices in the wilderness.

 

On the Palestinian side the relevant discussions are more in the realm of aspirations, pinning hopes on a renewed cycle of intensifying resistance by an array of nonviolent tactics and bolstered by a growing global solidarity movement that follows the tactics and guidance of Palestinian civil society leaders. If such an assessment is correct it represents something quite new, shifting the locus of expectations from the level of governments to that of people and popular mobilization. In these respects, the formal governmental actors have become marginalized, with the Palestinian Authority compromised due to its partially collaborative and dependent relationship with Israel and the United States and Hamas limited in its capacity to provide international leadership, although its leaders have repeatedly expressed their readiness for long-term peaceful coexistence with Israel. The question is whether such a globally based and populist Palestinian national movement can exert sufficient pressure on the Israeli established order to force a recalculation of interests in Tel Aviv, a process comparable to what occurred so dramatically in South Africa two decades ago, a drastic change by the governing white elite that was signaled there by the utterly surprising release from prison of Nelson Mandela, up until then alleged to be South Africa’s number one terrorist.

 

There are other post-Oslo developments of relevance as well. The European governments have been breaking ranks by announcing in different ways their recognition of Palestinian statehood and the desirability of admitting Palestine to full membership in the United Nations. Such steps, although entirely symbolic and likely unable to alter policies, are challenges to the notion that only the United States can speak to the conflict. These European initiatives contain some ambiguities, as well, because they still seem yoked to some variant of the Oslo two-state mantra, and even seem to call for resumed

direct negotiations. I can only ask ‘to what end?’ given past futility and Israel’s

undisguised moves toward imposing a unilaterally satisfying outcome without worrying as to whether the Palestinians like it or not. The Palestinian Authority has taken these steps in a different direction by urging the UN Security Council to adopt a resolution requiring Israeli withdrawal to 1967 borders by November 2016.

 

It is with these various considerations in mind that Ghada Ageel’s edited volume should be positively received as a timely and welcome addition to the vast literature addressing various facets of the Israel-Palestine unfolding reality. Its most striking feature is how well calibrated the various chapters that compose the whole are to this latest phase of struggle as depicted above. The book is built around the central organizing principle that there are three vital perspectives that enable an understanding and appreciation of both the suffering endured in the past by the Palestinian people and their moral, political, and legal entitlements when contemplating the future.

 

By distinguishing between those Palestinians whose life story is dominated by the traumatizing experience of a lost homeland, those whose engagement with the Palestinian struggle for justice is a matter of core political identity, and those who are scholars and activists that seek to interpret the conflict from the academic perspectives of international law and international relations Ageel has woven for readers a rich fabric of understanding. This understanding focuses on dispossession and displacement as the essential outcome of the nakba of 1948, the catastrophe that drove as many as 800,000 Palestinians from their cherished homeland, a story long at the core of the Palestinian experience, but only recently told to non-Palestinians in a persuasive manner as the Israeli Holocaust narrative of victimization had dominated public spheres of perception. The activists and scholars represented in this book are not neutral purveyors of knowledge, but individuals of diverse backgrounds who believe that peace will come to these two people if and only if justice is rendered by reference to Palestinian rights, which have been denied and encroached upon for so long.

 

What is worth noticing about this way of framing inquiry is that it gives scant attention to the conventional empowerment strategies of either armed struggle or diplomacy. The section reporting the lived memories of Palestinians are moving narratives about the past that give existential credibility to what it meant to uproot the Palestinian people, especially those from villages, from their homes and communities.

 

The section devoted to the tactics, strategies, and engagement of activists seeks to discern effective tactics to challenge an untenable status quo that the organized international community lacks the will and capability to overcome even though the whole tragedy of Palestine can be traced to colonialist policies (the Balfour Declaration and the League of Nations Mandate) after World War I and the attempted imposed UN partition plan after World War II.

 

The final section on morality, politics, and law reinforces the cries of anguish of the Palestinian witnesses and validates the work of the activists by providing well-documented and reasoned support for the main Palestinian grievances. Together, then, this volume without saying so directly speaks percetively to the new realities of the Palestinian national struggle.

 

There is no attempt made by editor or contributors to assess the current stage of Zionist thinking and that of the Israeli leadership. In one respect Ari Shavit’s book of two years ago, My Promised Land: The Triumph and Tragedy of Israel makes the best case for Israeli behavior, acknowledging the cruelty and violence of Palestinian dispossession, and its ugly sequels, but strains to justify everything done to the Palestinian people as ‘necessary,’ part of an ‘us’ or ‘them’ either/or reality. This kind of Israeli thinking is prevalent in several forms, being especially split on whether an Israeli imposed solution should seek to be humane in its treatment of the subjugated Palestinians or will need to continue to rely on an iron fist approach. If one puts aside propaganda disseminated for external consumption, Israel’s present conception of peace is preoccupied with fears, security requirements, and territorial ambitions, leaving no room for any serious attention given to Palestinian rights or what might make peace sustainable and just for both peoples.

 

In the end, I commend Ghada Ageel for so bravely sharing her own story while guiding us on a comprehensive journey that takes us up to the present historical moment. We cannot read these various contributions, each excellent on its own, without being both moved and instructed. What we come away with is a sense of both the victimization and empowering agency of the Palestinians as a people, with less interest and expectations associated with either the formal leadership representing Palestine in diplomatic venues or the relevance of either governmental diplomacy or the UN to move the conflict toward an acceptable outcome at this time.

 

Of course, if we are to hopeful in line with the vision encapsulated in this volume, then we need to get beyond the conventional thinking of political realism. This kind of thinking is bound to be defeatist at this time given the disparity in military capabilities and the degree to which Israel’s hard power seems to be calling the shots. Yet in the period since 1945 this kind of realism has consistently produced failed policies and surprising outcomes. From the great victory of Gandhi’s India over the British Empire to the unlikely defeat of the United States in the Vietnam War, almost all struggles involving political destiny of a country have been eventually won by the side that perseveres and gains control of world public opinion by winning the legitimacy struggle involving justice, law, and morality. There is little doubt that since the Lebanon War of 2006 the Palestinians have been winning this legitimacy struggle as a result of the intensely negative perceptions throughout the world in reaction to the merciless military operations carried out by Israel in Gaza in 2008-09, 2012, and 2014, as well as the 2010 attack on the Turkish led flotilla of humanitarian ships seeking to break the blockade of Gaza that has been punishing the entrapped civilian population for years.

 

In effect, quietly yet powerfully, Ghada Ageel and her band of collaborators, are telling us to reimagine the Palestinian national struggle, and even to relate to it in an effective and knowledgeable manner. This book gives us the pedagogic and activist tools we need to participate meaningfully and usefully in the greatest of all unresolved colonial era struggles. It should be of interest to anyone concerned with overcoming oppression, seeking justice, and exploring the outer limits of nonviolent struggle by a brave people who have

endured generations of collective suffering.

 

Wibisono’s Resignation as UN Special Rapporteur on Occupied Palestine

6 Jan

th

Commentary on the Resignation of Makarim Wibisono

 

(Prefatory Note: This post appeared on January 5th under a different title in the Electronic Intifada. It is published here in a slightly modified and extended form).

 

Makarim Wibisono announced his resignation as UN Special Rapporteur on Occupied Palestine, to take effect on March 31, 2016. This is position I held for six years, completing my second term in June 2014.

 

The prominent Indonesian diplomat says that he could not fulfill his mandate because Israel has adamantly refused to give him access to the Palestinian people living under its military occupation in the West Bank and Gaza Strip.

“Unfortunately, my efforts to help improve the lives of Palestinian victims of violations under the Israeli occupation have been frustrated every step of the way,” Wibisono explains.

 

His resignation reminds me in a strange way of Richard Goldstone’s retraction a few years ago of the main finding in the UN-commissioned Goldstone report, that Israel intentionally targeted civilians in the course of Operation Cast Lead, its massive attack on Gaza at the end of 2008.

At the time I responded to media inquiries by saying that I was shocked, but not surprised. Shocked because the evidence was overwhelming and the other three distinguished members of the UN fact-finding commission stuck by the finding. Yet I was not surprised because I knew Goldstone – a former judge of the South African constitutional court – to be a man of strong ambition and weak character, a terrible mix for public figures who wander into controversial territory.

 

In Wibisono’s case I am surprised, but not shocked. Surprised because he should have known from the outset that he was faced with a dilemma between doing the job properly of reporting on Israel’s crimes and human rights abuses and gaining Israel’s cooperation in the course of gathering this evidence. Not shocked, indeed grateful, as it illuminates the difficulty confronting anyone charged with truthful reporting on the Palestinian ordeal under occupation, and by his principled resignation Wibisono doesn’t allow Israel to get away with neutering the position of special rapporteur.

 

It is worth recalling that when Wibisono was selected as my successor, several more qualified candidates were passed over. Although the selection guidelines stress expert knowledge of the subject matter of the mandate, Wibisono apparently gained the upper hand along with the acquiescence of Israel and the United States precisely because of his lack of any relevant background.

 

I can only hope that now the UN Human Rights Council (HRC) will redeem its mistake by reviving the candidacies of Professor Christine Chinkin and Phyllis Bennis, both of whom possess the credentials, motivation and strength of character to become an effective special rapporteur.

 

The Palestinians deserve nothing less.

 

Honesty

 

When I met with Makarim Wibisono in Geneva shortly after his appointment as Special Rapporteur was announced, he told me confidently that he had been assured that if he accepted the appointment the Israeli government would allow him entry, a reassurance that he repeated in his resignation announcement. On his side, he pledged objectivity and balance, and an absence of preconceptions.

 

I warned him then that even someone who leaned far to the Israeli side politically would find it impossible to avoid reaching the conclusion that Israel was guilty of severe violations of international humanitarian law and of human rights standards, and this kind of honesty was sure to anger the Israelis.

 

I also told him that he was making a big mistake if he thought he could please both sides, given the reality of prolonged denial of fundamental Palestinian rights. At the time he smiled, apparently feeling confident that his diplomatic skills would allow him to please the Israelis even while he was compiling reports detailing their criminality. He told me that he was seeking to do what I did but to do so more effectively by securing Israel’s cooperation, and thus short circuiting their objections. It was then my turn to smile.

 

It is correct that the mandate itself is vulnerable to criticism as it does not include an assessment of the responsibility of Palestinian administering authorities for violations of human rights, and only looks at Israeli violations. I tried to persuade the HRC unsuccessfully to have the mandate enlarged to encompass wrongdoing by the Palestinian Authority and Hamas. The arguments against doing so was that it had been difficult to get agreement to establish the mandate, and opening up the issue of its scope was risky, and also, that the overwhelming evidence of Palestinian victimization resulting from the occupation resulted from Israel’s policies and practices. Hence, it was argued by several delegations at the HRC that attention to the Palestinian violations would be diversionary, and give Israel a way to deflect criticism directed at the occupation.

 

Facing the heat

 

What I discovered during my six years as special rapporteur is that you can make a difference, but only if you are willing to put up with the heat.

 

You can make a difference in several ways. Above all, by giving foreign ministries around the world the most authoritative account available of the daily realities facing the Palestinian people. Also important is the ability to shift the discourse in more illuminating directions, instead of limiting discussion to ‘the occupation,’ address issues of de facto annexation, ethnic cleansing, and apartheid, as well as give some support within the UN for such civil society initiatives as BDS and the Freedom Flotilla. By so doing you have to expect ultra-Zionist organizations and those managing the ‘special relationship’ between Israel and the United States to react harshly, including by launching a continuous defamatory campaign that seeks by all means to discredit your voice and will mount inflammatory accusations of anti-Semitism and, in my case, of being a “self-hating Jew.”

 

What both shocked and surprised me was the willingness of both the UN Secretary General and US diplomatic representatives (Susan Rice, Samantha Power) at the UN to bend in Israel’s direction and join the chorus making these irresponsible denunciations focused on a demand for my resignation.

 

Although periodically tempted to resign, I am glad that I didn’t. Given the pro-Israel bias of the mainstream media in the United States and Europe, it is particularly important, however embattled the position, to preserve this source of truth telling, and not to give in to the pressures mounted.

My hope is that the Human Rights Council will learn from the Wibisono experience and appoint someone who can both stand the heat and report the realities for what they are. It is hampering the performance of a Special Rapporteur to be denied Israeli cooperation with official UN functions, which is itself a violation of Israel’s obligations as a member of the UN. At the same time, Israel’s behavior that flaunts international law is so manifest and reliable information easily available that I found it possible to compile reports that covered the main elements of the Palestinian ordeal. Of course, direct contact with people living under occupation would have added a dimension of validation and witnessing, as well as giving some tangible expression of UN concern for the abuses being committed under conditions of an untenably prolonged occupation with no end in sight.

 

Until the day that Palestinian self-determination arrives, the least that UN can do is to keep open this window of observation and appraisal. After all, it is the UN that undertook back in 1947 to find a solution to the Israel/Palestinian struggle that acknowledged the equal claims of both peoples. Although such an approach was colonialist and interventionist in 1947, it has plausibility in 2016 given the developments in the intervening years. The UN may not be guilty in relation to what went wrong, but it certainly has failed to discharge its responsibilities with regard to Palestinian fundamental rights. Until these rights are realized, the UN should give this remnant of the colonial era as much attention as possible.

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Further Reflection on Blog Etiquette

5 Jan

A Message of Partial Concession

 

After the past week of comments on the blog I am a loss as to how to be a constructive filter. Constructive in the core sense of disallowing insult and injury clearly meant to discredit adversaries in debate. What I have found is that there is a tendency by both Israel’s defenders and critics to have such a deeply rooted distaste for each other as to make it almost impossible to disentangle substance from ad hominem invective.

 

Of course, as should be obvious I do not regard the critics and the apologists as equally justified in giving vent to their frustrations. There is a reality to be reckoned with, and for me that reality must begin with an acknowledgement of the intrinsic inequities of the oppresser/oppressed structure as a precondition for any valid discussion of the Israel/Palestine struggle. The master who whips and lynches should never be equated with the slave who resists abuse by whatever means are at his or her disposal. Such a relationship is wrongly conceived as a ‘conflict,’ which implies some sort of equality of status. For the Palestinians the issue is increasingly best understood as a choice between resistance and surrender, while for the Israelis the issue increasingly presents a choice between weaponry and tactics to suppress and respond with the earlier claim of a choice between peace and war being superseded long ago.

 

I recognize that there is a difference of opinion among blog regulars as to whether it is preferable to have open unrestricted debate however uncivil as against seeking through monitoring comments a more sanitized dialogue that confronts issues, not the persons who take those positions. As I have often pointed out I welcome good faith disagreement, and find that I learn more from those who express their differences in well-reasoned and principled prose than from those who are in agreement.

 

These consideration lead to modify the position adopted in my ‘Note on Blog Etiquette’ that has itself generated a flurry of responses. Instead of seeking to exclude all comments that contain insults and innuendo, I will limit my filtering effort to those comments that combine an angry tone with a focus on the personal. I will allow incidental invective to pass through my filter. This is my compromise, and I will see how it works.

 

Perhaps, better than a filter is an appeal to those who value the blog conversations that I aspire to nurture that civility is almost always more edifying than vilifying exchanges that inevitably degenerate into dialogues of the deaf.

 

Part of the issue here, I believe, is similar to the problems I encountered while serving the UN as Special Rapporteur for Occupied Palestine. Those that sought to defame and discredit were completely disinterested in the substance of the issues being discussed in the official reports, and participated only to rally support for my dismissal, and beyond this, for the end of any role on the part of the UN Human Rights Council in monitoring and appraising the Palestinian ordeal by reference to international law and human rights standards. In the blog context, those inveterate detractors are seeking to defame and discredit me, but beyond this, to darken the reputation of the blog and of those that support my posts.

I am sure that many followers of this blog find these reflections on blog etiquette tedious, even superfluous. To some extent I do myself. I feel, however, that social media in the digital age engenders new forms of social responsibility, and my attempt here is both to act responsibly and to make beneficial use of this platform for the expression and exchange of ideas. Nothing less, nothing more.

As 2016 Begins: A Message on Blog Etiquette

1 Jan

As 2016 Begins: A Message to Blog Comment Writers

 

I want to thank those of you who have written comments, whether critical or complimentary. Their presence gives the blog a dialogic identity that I find valuable. I do my best to listen, and if possible respond, but at timers feel overwhelmed by agreeing to do more than I can manage.

 

I do not welcome comments that framed by invective, comments that seek to insult others with whom they disagree, and exhibit rage and arrogance. Although the blog touches on a wide range of subjects I find that impulse toward defamatory comments is almost exclusively limited to those who seek to support Israel and discredit its critics, questioning their motives, information, and character whether outright or through innuendo.

 

As I have declared previously, I will block in 2016 any further comments that cross lines of courtesy and civility. As we learned in the case of Stephen Salaita, freedom of speech should be protected whether civil or not when it assaults conventional orthodoxies, but I consider this website to have become a kind of digital home where the purpose is to nourish thought, reflection, and even community. From this perspective in a manner parallel to Gresham’s Law ‘bad speech drives out good.’

 

I don’t doubt that are good faith differences as what is bad speech and what is good speech, and do not pretend to be objective, although I try to be fair. I realize that in the past when I have reacted similarly, I have not always followed through consistently, but in the spirit of new year’s resolutions, I will try harder. On the basis of past experience, I know that authors of past defamatory comments will fuss and fume, but I hope others who take time to read my posts will take advantage of what I hope will be a more nurturing atmosphere for conversation. 

 

Also, to avoid wasting anyone’s time do not waste your energy attacking this message intending to establish at the start of the new year guidelines for the future. It is my intention to block uncivil attacks on the sentiments expressed in this message if contrary to the canons of digital etiquette appropriate for this website.

Despair and Hope for the New Year

30 Dec

 

W.H. Auden wrote these suggestive lines in the poem ‘Lament for a Lawgiver’ that can be found in his Age of Anxiety:

 ‘The gods are wringing their great worn hands

for their watchman is away, their world engine

Creaking and cracking…’

 

If we pause to look about the world, we will observe many signs of creaking and cracking. Among the most alarming forms of creaking and cracking is the appalling failure of political leadership. Where are the Roosevelts, DeGaulles, Chou En-Lais, Sukarnos, Titos, and Nehrus? Is the dumbing down of political leadership a consequence of the reordering of the world economy in ways that constrain and corrupt the role of governments? Or has the technology of control, surveillance, and destruction become so overwhelming as to make the moral and political imagination seem irrelevant, giving exclusive historical agency to those who propose doing nothing while the fires ravaging the earth burn out of control? Or even propose pouring more and more oil on the fires? In this respect, should we not regard the ‘climate denier’ as the true hero of our time, he that worships that which destroys, and so distresses the wearying gods.

 

Or should we blame the structures that have evolved to constitute modernity, especially the fragmenting impact of the sovereignty of states as reinforced by the passions of tribalizing nationalisms? This optic of the national tribalized self that controls our visionary capability has so far been virtually paralyzed when confronted by the advent of nuclear weaponry, global warming, and waves of desperate migrants seeking sanctuary. Instead of generating policies and practices responsive to human and global imperatives of collective and species survival, the feeble responses that were forthcoming depended on the aggregation of what little states would agree upon to satisfy their collective interests. The hierarchy among states is also responsible for the infernal spiral by so awkwardly imposing itself on the principle of juridical equality. It has contrived such devices as claiming a right of veto in the UN Security Council on behalf of the permanent five (P5) and by invalidating the acquisition rather than possession and use of nuclear weaponry.

 

Or maybe we should pause long enough to contemplate the religious resurgence that can be understood from many angles: As a revolt against the spiritual aridity of modernity, that is, the failures of instrumental rationality and a false consciousness that equates technological innovation with progress, and material gain with happiness. We find ourselves haunted by the prospect of perpetual war fought with ever more extraordinary technological prowess, but giving rise to apocalyptic phantasies of wars between good and evil, the self and the other, drained of empathy and drenched with displays of hyper-violence. Is it any wonder that it is ‘Star Wars’ that best entertains and diverts while the greatest human gift of the imagination prolongs its hibernation despite a growing realization that this is a time of unprecedented species danger?

 

Or did the gods grow weary, fatigued by such a record of shattered hopes? When the Soviet experiment became totalitarian criminality rather than an emancipatory process of collective liberation, many lost their confidence in revolutionary change. Utopian landscapes of the future were derisively put to one side, and the market and the moderate ‘selfie’ state were accepted as the outer limits of healthy human aspiration. We have lost that bit of biblical wisdom recognizing that a society without vision perishes. We as a nation and our citizens as members of a species need badly to recover ‘horizons of desire.’ At present, we find ourselves trapped, gradually becoming aware that ‘horizons of feasibility’ (what politics as the art of the possible deems feasible) is disastrously separated from ‘horizons of necessity (what science, morality, and common sense deem as necessary). When this gap between feasibility and necessity becomes understood, it seeks refuge in denial, escapism, and extremism. That is, the gap is either ignored or a simplistic alternative narrative of what is wrong is seized upon, a quack remedy with a terrible taste—the sort of vacuum that Trump seems to be filling for those many Americans who want enemies to blame and lethal promises to keep.

 

Consider the failure to rid the world of nuclear weaponry or the refusal to deal with climate change in a manner that heeds the consensus among climate experts. Or consider the Syrian babies washed ashore on Turkish beaches and Greek islands as an ultimate metaphor of a species that endlessly moralizes yet behaves with spectacular inhospitality and insensitivity in the face of even the most horrific suffering by fellow humans. The opposite of cosmopolitan ethics is the psychologically dominant template of tribal and communitarian loyalties, combining with the othering of those whose presence among us poses a challenge of some sort. The post-Holocaust pledge of ‘never again’ has a hollow ring, if even recalled.

 

Or maybe we should worry most about the collective forms of ecological alienation that are daily ravaging our planet. We have become a species that destroys its own habitat, forgetting the evolutionary reality of an ultimate dependence of all living beings on its natural surroundings. We have lost these elemental moorings that seemed self-evident to pre-modern peoples who understood the need to live with nature, not as domineering exploiters but as stewards and partners, sensitive to such abstractions as ‘carrying capacity’ and ‘sustainability,’ but also to the exotic wonders of biodiversity and the natural beauty of our extraordinary planet.

 

We should not overlook the salience of racially driven police brutality and the several failures of the justice system to impose some appropriate measure of accountability. We can be grateful for the emergence of Black Lives Matter dedicated to bringing this kind of governmental racism to an end. Laws are not enough if public consciousness is not committed to their implementation,

without which the application of law seems synonymous with injustice. Let us pause as the new year begins to remember the shocking deaths of Trayvon Martin, Freddie Gray, Eric Garner, Sandra Bland, Tamir Rice, Quintonio LeGrier, Bettie Jones among many other African American lives destroyed, and then recall the series of distressing acquittals, especially the impunity legally accorded to the police killer of Michael Brown shot dead multiple times in Ferguson, Missouri on August 9, 2014. It is time to realize that it is up to each of us to make black lives matter applicable in our own lives, our own experience. To grasp the complexity of what this means I recommend three extraordinary books: Claudia Rankine, Citizen: An American Lyric, Robin Coste Lewis, Voyage of the Sable Venus, and Ta-Nehisi, Between the World and Me. To understand the menace of police violence as expressing the persistence of racism in the sort of plutocracy that the United States has become, I urge all to read Gerry Spence’s extraordinarily timely Police State: How American Cops Get Away with Murder.

 

As always, I feel an especial bond of solidarity with all those resisting Israeli oppression and seeking justice for the millions of Palestinians trapped in Gaza, oppressed in the West Bank, cleansed in East Jerusalem, victimized in refugee camps, and languishing in exile. I would also wish that pressures from within and without might prompt, however belatedly, Israeli soul searching and with it, the realization that it is never too late to walk the path of peace and justice

  

 

Yet we should not greet the arrival of 2016 without words of consolation and hope. My friend, Robert Lifton, many years ago usefully quoted Theodore Roethke who poetically observed “in the dark the eye begins to see.” The future is unknowable, and history teaches us that both disasters and miracles happen unexpectedly, and that what we do and don’t do makes a difference even if the outcome of our dedication to a humane future cannot be known to be worthwhile in advance. It makes a difference to engage in such a struggle even aside from whether it is vindicated by achieving the goals that animate such a quest. Pursuing a humane future is a process, a journey or pilgrimage that alone can elevate our strivings to correspond with our values, dreams, and hopes, leaving the eventual outcome at the mercy of the gods.

 

Those caught in despair believe we are living on borrowed time, amid the dusk of the species. Those clinging to hope consider ourselves enduring the morbid symptoms of transition (Gramsci’s illuminating comment that the old has not yet died while the new has yet to be born), and that emerging forces are shaping a cosmic consciousness that will overcome ecological alienation and all varieties of racism, allowing us to think, feel, and above all discover that we belong to the only species assigned by the gods this sacred vocation to serve as the guardian angel of planetary wellbeing that includes racial just, and in so doing clip the wings of avenging angels. Pope Francis seems to have best grasped this ultimate form of human responsibility, and one can only hope that more of us act within the circle of his vision before it is too late. Most needed in these dark times is to hold tight to what we believe with an unruly embrace of faith, patience, and urgency. This is my most fervent New Year’s wish for 2016. 

A Christmas Message in Dark Times

24 Dec

 

 

Here in the United States, I react against the avoidance of the word ‘Christmas’ during this holiday season. I would undoubtedly feel differently if I were living in Turkey or India. The legions of ‘the politically correct’ determined to avoid offending those, especially Jews, who are not Christians, will carefully express their good wishes with such phrases as ‘happy holidays!’ This is okay except it obliterates the vibrant symbolism of Christmas as a seminal occasion that has over the centuries transcended for most of us its specific religious roots and meanings. It has an ecumenical resonance that calls for bright lights, ornamented trees, celebration, and wishes for peace on earth and good will toward all, bringing together those of diverse faith or no faith at all. When I was growing up in New York City Christmas was ‘Christmas’ regardless of whether one was Christian or not, and implied no religious dedication whatsoever.

 

As time has passed, ethnic and religious sensitivities have grown as identities have become more tribal. I do partly associate this trend in my experience with the greater ethnic assertiveness of Jews over the years, especially in response to the ascent of Israel and the rise of Zionist loyalties. America’s ‘special relationship’ with Israel represents a governmental recognition that Israel can do no wrong in the eyes of Washington. This is another unfortunate manifestation of excessive deference, in this instance what might be called ‘geopolitical correctness,’ and has had many detrimental effects on American foreign policy in the region. Another kind of harm is associated with the inhibiting State Department formal adoption of a definition of anti-Semitism that conflates strong criticism of Israel with hatred of Jews.

 

Yet to decry such forms of political correctness as a posture is not to condone insensitivity to those among us who have suffered or are suffering from deep historical abuses. I do believe we need to do all we can avoid hurtful language and subtle slights when dealing with the situation of African Americans or Muslims. Donald Trump disgraces America because he embraces the kind of militant Islamophobia that is not only incendiary in the American political climate, but unwittingly is a tacit reinforcement of jihadist extremism. There is a vast difference between opportunistic deference to the ‘politically correct’ and moral sensitivity to those who have been or are being victimized in American society. Of course, Trump has achieved such prominence by his zealous willingness to be politically incorrect in all sorts of vulgar and hurtful ways, which sadly uncovers an angry and afraid constituency among the American citizenry, with its appetite for simplistic answers that shift the blame to the hateful other.

 

Do not such reflections also suggest the propriety of sensitivity to the long Jewish experience of persecution, climaxing with the Holocaust? To some extent, moral sensitivity is historical and geographical. It points to a difference in tone and content in Germany as compared to here in America. More concretely, it seems natural to exercise greater care in Germany not to offend, and not even to seem callous toward Jewish identity given the proximity of the Holocaust. I would affirm this kind of moral prudence and forebearance, but even this type of restraint can be carried too far. Germans and the German government obsessively avoid any semblance of criticism of Israel because of an apparent worry that such views would be treated as evidence that anti-Semitism continues to flourish in Germany. In this regard memories of the Holocaust are no longer a good reason, if it was ever the case, for suspending criticism of Zionism as a political project or Israel as a normal state as accountable to upholding international law, UN authority, and principles of morality as any other state.  

 

It is entirely inappropriate for anyone to ignore the brutal dispossession of the Palestinian people, the prolonged denial of the Palestinian right of self-determination, and the horrific daily ordeal of living, as millions of Palestinians do, under occupation, in refugee camps, and in involuntary exile decade after decade. Bad memories of victimization are never a sufficient reason to overlook crimes being committed in the present.

 

As a Jew in America I feel the tensions of conflicting identities. I believe, above all, that while exhibiting empathy to all those have been victimized by tribally imposed norms, we need to rise above such provincialism (whether ethnic or nationalistic) and interrogate our own tribal and ‘patriotic’ roots. In this time of deep ecological alienation, when the very fate of the species has become precarious, we need to think, act, and feel as humans and more than this, as empathetic humans responsible for the failed stewardship of the planet. It is here that God or ‘the force’ can provide a revolutionary comfort zone in which we reach out beyond ourselves to touch all that is ‘other,’ whether such otherness is religious, ethnic, or gendered, and learning from Buddhism, reach out beyond the human to exhibit protective compassion toward non-human animate dimensions of our wider experience and reality. It is this kind of radical reworking of identity and worldview that captures what ‘the Christmas spirit’ means to me beyond the enjoyment of holiday cheer.

 

From this vantage point, the birth of Jesus can be narrated with this universalizing voice. The star of Bethlehem as an ultimate source of guidance and the three wise kings, the Maji, who traveled far to pay homage to this sacred child can in our time bestow the wisdom of pilgrimage, renewal, and transformation that will alone enable the human future to grasp the radical wisdom of St. Augustine’s transformative: “Love one another and do what thou wilt.” Put presciently in a poem by W.H. Auden, “We must love one another or die.”

 

I suppose I am making a plea, or is it a dreamy affirmation? A utopian wish, to be sure, but nothing less has relevance in these dark times.

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