Iran’s Nuclear Program: Diplomacy, War, and (In)Security in the Nuclear Age

17 Mar

 

Perhaps, Netanyahu deserves some words of appreciation, at least from the Israeli hard right, for the temporary erasure of the Palestinian ordeal from national, regional, and global policy agendas. Many are distracted by the Republican recriminations directed at Obama’s diplomatic initiative to close a deal that exchanges a loosening of sanctions imposed on Iran for an agreement by Tehran to accept intrusive inspections of their nuclear program and strict limits on the amount of enriched uranium of weapons grade that can be produced or retained.

 

We can only wonder about the stability and future prospects of the United States if 47 Republican senators can irresponsibly further jeopardize the peace of the Middle East and the world by writing an outrageous Open Letter to the leadership of Iran. In this reckless political maneuver the government of Iran is provocatively reminded that whatever agreement may be reached by the two governments will in all likelihood be disowned if a Republican is elected president in 2016, or short of that, by nullifying actions taken by a Republican-controlled Congress. Mr. Netanyahu must be smiling whenever he looks at a mirror, astonished by his own ability to get the better of reason and self-interest in America, by his pyrotechnic display of ill-informed belligerence in his March 2nd address to Congress. Surely, political theater of sorts, but unlike a performance artist, Netanyahu is a political player whose past antics have brought death and destruction and now mindlessly and bombastically risk far worse in the future.

 

What interests and disturbs me even more than the fallout from Netanyahu’s partisan speech, are several unexamined presuppositions that falsely and misleadingly frame the wider debate on Iran policy. Even the most respected news sites in the West, including such influential outlets as the NY Times or The Economist, frame the discourse by taking three propositions for granted in ways that severely bias our understanding:

                        –that punitive sanctions on Iran remain an appropriate way to prevent further proliferation of nuclear weapons in the Middle East, and enjoyed the backing of the United Nations;

                        –that Iran must not only renounce the intention to acquire nuclear weapons, but their renunciation must be frequently monitored and verified, while nothing at all is done about Israel’s arsenal of nuclear weapons;

                        –that there is nothing intrinsically wrong about Irael’s threats to attack Iran if it believes that this would strengthen its security either in relation to a possible nuclear attack or in relation to Iran’s support for Hezbollah and Hamas.

 

 

 

 

SANCTIONS

 

Sanctions are a form of coercion expressly imposed in this case to exert pressure on Iran to negotiate an agreement that would provide reassurance that it was not seeking to acquire nuclear weaponry. Supposedly, Iran’s behavior made such a reinforcement of the nonproliferation treaty regime a reasonable precaution. Such measures had never been adopted or even proposed in relation to either Germany and Japan, the two main defeated countries in World War II, who have long possessed the technical and material means to acquire nuclear weapons in a matter of months. Iran has repeatedly given assurances that its nuclear program is peacefully aimed at producing energy and for medical applications, not weapons, and has accepted a willingness to have its nuclear program more regulated than is the case for any other country in the world.

 

It should be appreciated that Iran has not been guilty of waging an aggressive war for over 275 year. Not only has it refrained in recent years from launching attacks across its borders, although it has itself been severely victimized by major interventions and aggressions. Most spectacularly, the CIA-facilitated coup in 1953 that restored the Shah to power and overthrew a democratically elected government imposed a dictatorial regime on the country for over 25 years. And in 1980 Iraq invaded Iran with strong encouragement of the United States. Additionally, Iran has been subject over the years to a variety of Western covert operations designed to destabilize its government and disrupt its nuclear program.

 

Despite their UN backing, the case for sanctions seems to be an unfortunate instance of double standards, accentuated by the averted gaze of the international community over the years with respect to Israel’s process of acquisition, possession, and development of nuclear weaponry. This is especially irresponsible, given Israel’s behavior that has repeatedly exhibited a defiant attitude toward international law and world public opinion. I would conclude that Iran the imposition of harsh sanctions on Iran is discriminatory, more likely to intensify that resolve conflict. The proper use of international sanctions is to avert war or implement international law, and not as here to serve as a geopolitical instrument of hard power that seeks to sustain a hierarchical nuclear status quo in the region and beyond.

 

NUCLEAR WEAPONS OPTION

 

Iran is expected not only to forego the option to acquire nuclear weapons, but to agree to a framework of intrusive inspection if it wants to be treated as a ‘normal’ state after it proves itself worthy. As indicated, this approach seems discriminatory and hypocritical in the extreme. It would be more to the point to acknowledge the relative reasonableness of Iran’s quest for a deterrent capability given the extent to which its security and sovereignty have threatened and encroached upon by the United States and Israel.

It is relevant to note that the Obama presidency, although opting for a diplomatic resolution of the dispute about its nuclear program, nevertheless repeatedly refuses to remove the military option from the negotiating table. Israel does little to hide its efforts to build support for a coercive approach that threatens a preemptive military strike. Such an unlawful imprudent approach is justified by Israel’s belief that Iran poses an emerging existential threat to its survival if it should acquire weapons of mass destruction. Israel bases this assessment on past statements by Iranian leaders that Israel should not or will not exist, but such inflammatory rhetoric has never been tied to any statement of intention to wage war against Israel. To assert an existential threat as a pretext for war is irresponsible and dangerous.

 

From Iran’s perspective acquiring a nuclear weapons capability would seem a reasonable response to its security situation. If deterrence is deemed a security necessity for the United States and Israel, given their military dominance in conventional weaponry, it should be even more so for Iran that is truly faced with a genuine, credible, and dangerous existential threat. Few countries would become safer and more secure if in possession of nuclear weapons but Iran is one state that likely would be. Again what is at stake most fundamentally is the challenge to the nuclear oligopoly that has been maintained since the early stages of the Cold War when the Soviet Union broke the American nuclear monopoly. More immediately threatened if Iran were to acquire nuclear weapons at some future point is Israel’s regional nuclear weapons monopoly that serves both as a deterrent to others and helps clear political space for Israel’s expansionist moves in the region. I would not argue that Iran should acquire nuclear weapons, but rather that it has the strongest case among sovereign states to do so, and it is a surreal twist of realities to act as if Iran is the outlier or rogue state rather than the nuclear weapons states that refuse to honor their obligation set forth in Article VI of the NPT to seek nuclear disarmament in good faith at a time. The most urgent threat to the future in this period arises from the increasing risk that nuclear weapons will be used at some point to resolve an international conflict, and thus it should be a global policy imperative to demand efforts to achieve nuclear disarmament rather than use geopolitical leverage to sustain the existing hierarchy of states with respect to nuclear weaponry.

 

MILITARY THREATS

 

Israel’s military threats directed at Iran clearly violate the international law prohibition contained in Article 2(4) of the UN Charter that prohibit “threats or uses” of force except for self-defense against a prior armed attack or with an authorization by the Security Council. Despite this threat to international peace in an already turbulent Middle East, there is a widespread international acceptance of Israel’s behavior, and in fact, the most persuasive argument in favor of the sanctions regime is that it allays the concerns of the Israeli government and thus reduces the prospect of a unilateral military strike on Iran.

 

Conclusion

 

Overall, this opportunistic treatment of Iran’s nuclear program is less indicative of a commitment to nonproliferation than it is a shortsighted expression of geopolitical priorities. If peace and stability were the true motivations of the international community, then we would at least expect to hear strident calls for a nuclear free Middle East tied to a regional security framework. Until such a call is made, there is a cynical game being played with the complicity of the mainstream media. To expose this game we need to realize how greatly the three presuppositions discussed above misshape perceptions and discourse.  

 

 

 

 

 

 

Netanyahu: The Day After (Revised)

4 Mar

Netanyahu: The Day After

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

Commentary on Netanyahu’s Visit to the United States

2 Mar

Pondering the Netanyahu Visit

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

‘Lawfare’ and Liberation

23 Feb

Positive and Negative Forms of ‘Lawfare’

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

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

a more systematic reality.

 

 

 

 

 

 

 

 

When a Terrorist Is Not a Terrorist

20 Feb

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

as

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

16 Feb

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

 

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

 

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

 

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

 

 

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

 

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

 

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

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

 

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

 

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

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

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

 

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

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

 

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

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

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

 

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

 

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

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

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

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

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

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

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

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

 

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

 

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

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

 

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

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

 

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

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

 

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

 

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

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

On the North Carolina Killings

14 Feb

[Prefatory Note: a short interview on how to interpret the ghastly murder of three young Muslims living in the North Carolina university town of Chapel Hill. Should such a grisly event be viewed as a tragic response of a deranged neighbor whose emotions took a violent turn after a dispute over parking in their common residential community or is it better understood as one more indication of the toxic realities associated with the interplay of gun culture and Islamophobia? My responses seek to give reasons for adopting this wider understanding of why such incidents, although horrible on their own, are also bringing death to canaries in the mines of American society. As such the embrace of the movie American Sniper can be seen as another dimension of how ‘the long war’ unleashed after 9/11 to satisfy a range of global ambitions is increasingly casting its dark shadow across the domestic life of the country. We are, indeed, living in a globalizing world where the wrongs done without will be in due course superseded by the wrongs done within. I thank Dan Falcone for his questions that gave me the opportunity to offer these responses.]

 

 

 

Dan Falcone: In light of the recent shooting of Muslims in North Carolina, Russian Television was pondering if the killings would have received a quicker, more widespread and more responsive media reaction had the perpetrator been a Muslim, instead of victims, as seen in this case. My thought is that this question is beyond the hypothetical. What are your thoughts?

 

Response: I think there is every reason to believe that the identity of the perpetrator influences the media response and approach taken by the public. If the actors are Muslim, whether linked or not to a political network, there is an aura of suspicion surrounding the crimes committed. In contrast, if the perpetrator is white, and Christian, he will be considered a lone actor suffering a severe mental disorder even if he is shown to have links to wider extremist communities as was the case with Timothy McVeigh and Andrew Breivik who engaged in terrorist acts in Oklahoma City (1995) and Norway (2011). The Islamophobic cultural mood predisposes the media and public to incline toward worst case interpretation of Muslim perpetrators and best case scenarios of Christian perpetrators, especially when the victims are Muslim as is the case for the murder of the three young Muslims in North Carolina (Daele Shaddy Barakat, Yusor Mohammed, and Razan Mohammed Abu-Sahla) being partially trivialized as a ‘parking’ dispute among neighbors.

 

 

 

 

 

 

 

DF: Electronic Intifada and The New Republic reported on the case relative to what they call, “New Atheism,” a social and political secular movement that tends to use classical liberal views to masquerade the advance of reactionary behaviors. Furthermore, when coupled with neo-conservatism, new atheism cherry picks which socio-political groups are targeted in the name of freedom. Do you see this as an attempt in double-speak to intentionally cloud the issue?

 

Response: There may be an element of insight into some particular cases on this basis, but by and large this kind of discourse obscures the far greater relevance of the Islamophobic atmosphere prevailing in the United States and Europe, and also removes from consideration the linkage between overseas American militarism directed at Muslim societies and recourse to extremist behavior by Muslims. Both the views of the Tsarnaev brothers who exploded the bombs at the Boston Marathon and the Dzhokhar brothers who carried out the recent Charlie Hebdo killings in Paris seemed shaped by the wars in Afghanistan and Iraq, and by the Abu Ghraib pictures confirming the torture and humiliation of Muslim prisoners.

 

DF: I noticed many educated readers and citizens and the popular press exhausting ways to explain how the killing of Muslims might not be a hate crime, whereas in the coverage of many killings around the world, there seems to be an automatic subtext anticipated in the first hour of reporting: “No word yet if terrorism played a role.” Does this type of thinking remind you of Edward Said’s work in Unveiling Islam?

 

Response: Yes, definitely. The journalistic tropes used to describe incidents of this sort, especially the initial take when little has been firmly established, are revealing of underlying cultural biases and self-serving governmental ways of processing sensationalist news. To ignore the Muslim identity of the victims, and explain the behavior of the killer as an exaggerated reaction to a dispute over parking is illustrative of this effort to avoid treating Muslim victimization as an expression of ‘hate.’

 

The insertion of a terrorist possibility is immediate and reflexive if the persons accused are Muslim, and avoided if not even when involving the mass killing of innocent civilians. Why was the Sandy Hook less of a display of a terrorist mind set than that of those who acted in Boston or Oslo?

 

 

DF: New atheism seems to suggest that hate crimes are symmetrical and are both color and religiously blind. Given the fact that all three victims had a Palestinian origin or background will this motivate the United States and take say, Israel to discuss the issue with the most minimal amount of complications? And do you think this tragedy provides the Palestinian community a chance to foster additional solidarity?

 

Response: I do feel that what is being described as the ‘new atheism’ is bound up with the recent popularity in some circles of the secularist idea that most of the evil in our midst can be blamed on religious belief that fuels fanaticism. Authors such as Sam Harris, Christopher Hitchens, and media impresario Bill Maher all feed such views by adopting reductive views of religion that end up associating religious belief with sociopathic extremism. In one respect, such secular thinking is itself fundamentalist in ways that can result in violent behavior on the part of disturbed individuals. It is worth noticing that Craig Stephen Hicks, the North Carolina killer, was self-described as ‘a gun-toting liberal’ (former auto parts dealer now studying to be a paralegal professional) proclaiming his hostile attitudes toward religion on his Facebook page, making the fact that two of the victims wore headscarves possibly an element that heightened his lethal anger to the point of uncontrollable rage. That such a person, whose previous erratic was widely known, should be authorized to possess and wield guns in an intimidating fashion is itself a severe indictment of what ‘the right to bear arms’ has come to mean here in America.

 

I do not think stressing the links between atheism and extremist violence is helpful as it minimizes attention to the cultural and religious prisms through which political behavior is being predominantly shaped, especially with respect to foreign policy. It is likely that there will be a temporary surge of sympathy with those who share an Islamic identity with these victims, and a realization that such politically and cultural tainted crimes are a serious threat to the moral order of the country, including the maintenance of a sense of political community. I doubt that it will translate in any meaningful way into sympathy for Palestinian victimization, which as far as I have been aware is not given much attention in the mainstream reporting of the incident. It is true that the pro-Palestinian boycott groups associated with the BDS campaign have seized upon these events to indicate their solidarity with the victims of the North Carolina crime, as they did earlier with African American victimization in relation to the recent police killings in Ferguson (Michael Brown) and Staten Island ( Eric Garner).

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