Rethinking Nuclearism

6 Oct

 

[Prefatory Note: This post is the writeup of a presentation in Lund, Sweden at a peace gathering organized and moderated by Stefan Andersson on Oct. 3, 2018.]

 

Rethinking Nuclearism: Thirty Years Later

 

 

More than thirty years ago I applied the term ‘nuclearism’ to the association between the hardware dimensions of the weaponry and their various software dimensions ranging from strategic doctrine to the infatuations of powerful men with their awesome destructive capabilities. This weaponry gave humanity limitless power, not only potentially destructive of a civilization or many civilizations, but threatening the future viability of human and non-human species alike. Such a capacity to wreak destruction had previously belonged in the province of apocalyptic myth and religious foreboding. So when actualized by the bomb dropped on Hiroshima, the results of breathtaking technological breakthroughs., the effects recast the very essence of human condition. Myth and religion lost much of their historical agency, with final agency over human destiny seemingly transferred from God (or the gods) to ordinary human beings.

 

Yet those atomic explosions also challenged the rationality of the modern world, which supposedly replaced superstition and faith as the foundation for action and security in the world. Why retain a weaponry with such irrational properties now, which would only get worse in the future? The early reaction to nuclear weapons was accompanied by this rational imperative, which at first was widely endorsed by many political leaders, as well as the public. The vision of a world without nuclear weapons was at first not a dream of global idealists but viewed as a rational necessity if the modern world was going to survive and flourish. Before long this mood of foreboding was overcome by realists who managed to build a rational edifice encompassing enough to house nuclear weaponry, initially against the geopolitical background of the emerging Cold War. This grand exercise in establishing the rationality of irrationality was given the name ‘deterrence,’ and despite many changes in the global setting has persisted in a variety of formulations until today.

 

At the same time, there needed to be ways to reduce the dangers of geopolitical challenges, expensive and risky extensions of nuclearism, and above all, a way found to curtail the spread of such equalizing power to other states. In effect, it was recognized early on that nuclearism, to be sustainable, needed to be managed.To achieve this goal required a Faustian Bargain was needed to induce the great majority of non-nuclear states to forego a nuclear option in a manner that did not compromise their rights as sovereign states. The silver bullet of constructing a management system was nonproliferation, formalized in the Nonproliferation Treaty (NPT) that entered into force in 1968.  The inducements for the non-nuclear states seemed substantial: unrestricted access to the benefits of what were called ‘peaceful uses’ of nuclear technology (Article IV) and a right to withdraw from the treaty on three months notice if ‘supreme interests’ reflecting the occurrence of ‘extraordinary events’ so dictated (Article X). The biggest inducement of all was a pledge by the nuclear weapons states, as a matter of urgency and good faith, to agree to pursue nuclear disarmament, and beyond this, general and complete disarmament (Article VI). It should be noted that the NPT fully respected the sovereign rights of non-nuclear states to pursue their security as a matter of national policy, including even the right to withdraw from the treaty, and provided no enforcement mechanisms for verifying non-compliance or providing enforcement in the event of serious violations by either taking steps to acquire the weaponry or through a refusal to negotiate disarmament in good faith.

 

What has happened since in the 50 years since the NPT was negotiated is both startling and almost totally overlooked even by the most severe critics of nuclearism. The NPT framework has been unilaterally supplemented by a geopolitical regimeof Western powers, headed by the United States. This regime undertakes to enforce the NPT against actual and potential violators, that is, exceeding the obligations accepted by the parties to the NPT. As the attack on Iraq in 2003, the coercive diplomacy directed at North Korea, and especially Iran, has shown, this geopolitical regime takes precedence over international law restraints on the use of force in international disputes, and overrides claims of sovereign rights. At the same time, the nuclear weapons states, without renouncing Article VI, have completely failed to fulfill their commitment to seek nuclear disarmament, a failure that the International Court of Justice identified in its 1996 Advisory Opinion. There is no clearer or more significant demonstration of the primacy of geopolitics in the current enactment of state-centric world order. This impression is reinforced by the refusal of the United States to allow parties to the NPT to exercise their legal right of withdrawal in accord with Article X of the treaty. Compliance with the NPT should be demanded and the geopolitical regime of selective enforcement should be abandoned.

 

These extremely serious unilateral modifications of the NPT bargain has met with relatively little formal opposition from the affected non-nuclear states and the peoples of the world. The nuclear weapons states have been successful in diverting attention from these modifications by introducing arms controlas a complement to deterrence,even presenting arms control arrangements as steps toward disarmament. Actually, the opposite is true. Arms control is dedicated to cutting risks and costs associated with nuclearism. Its core claim is ‘to make the world safe with nuclear weapons’ rather than the transformativeidea of ‘a world without nuclear weapons.’ These steps involve various international agreements designed to avoid unintended or accidental uses of nuclear weapons. Their dominant goal is to stabilize the managerial approach while treating transformative or abolitionist demands that the weapons be eliminated in a reliably supervised manner as utopian and imprudent.  

 

The confusion that arises from the failure to distinguish these two approaches has helped explain the neutralization of anti-nuclear forces over the decades, despite their enjoyment of overwhelming popular support. The anti-nuclear movement has been unable to mount and sustain a focused campaign against nuclearism. My view is that until this antagonism between management of nuclearism is understood and overcome, there will be no meaningful denuclearization of world politics. Until the managerial approach is directed challenged and repudiated, anti-nuclear forces will be frustrated, forever beating their heads against an iron wall of resistance by the politics of nuclearism. In other words, to move toward a world without nuclear weapons requires an initial conceptual clarity that has so far been lacking. It may, of course, continue to be prudent for intrinsic reasons to adopt certain arms control measures, but to do so now with eyes wide open, which means recognizing that such a step is likely to be a step awayfrom adopting a transformative approach to nuclearism.

 

What is wrong with this reliance on the managerial approach to regulating nuclearism based on the NPT, the NPT geopolitical regime, and arms control, especially given the apparent political unattainability of nuclear disarmament? I believe a series of strong critical assessments make the managerial approach ethical unacceptable and politically flawed:

 

–by adopting a geopolitical solution to nuclearism the reliance is placed on hierarchyor nuclear apartheid rather than on equalityamong states and norms that treat equals equally;

 

–by relying on deterrence, premised on assumptions of strategic infallibility and unconditional rationality the weight of human experience is ignored, which in contrast exhibits pervasive fallibility and sporadic irrationality;

 

–by prohibiting some states (e.g. Iran) while permitting other states (e.g. Israel) to acquire nuclear weapons the geopolitical regime also suffers from unprincipled discrimination;

 

–by claiming rights to enforce the NPT, the geopolitical regime violates the UN Charter, authorizes aggression, and specific Charter norms prohibiting non-defensive threats and uses of international force;

 

–by rejecting a reactive approach to violations of the NPT, the geopolitical enforcers adopt a preemptive war/preventive war rationale that is inconsistent with contemporary international law;

 

–by threatening massive retaliation and avoiding no first use commitments, nuclear weapons states violate prohibitions against disproportionate, indiscriminate, and inhumane uses of force as embodied in customary international law and international humanitarian law (Geneva Conventions of 1949 and Protocols of 1977);

 

–by relying on a managerial approach to nuclearism the NPT/AC approach as enhanced by the geopolitical regime evades the bioethical challenges associated with civilizational and survival threats directed at the human species as a whole;

 

–by overriding the explicit obligations of an international treaty through the imposition of a geopolitical regime, the approach taken diminishes respect for international agreements, political compromise, and the role of international norms of morality and law.

 

 

Concluding Concern. If transformational approach is unattainable and the managerial approach deeply flawed, what does that suggest about the current phase of the struggle of the peoples of the world and their governmental allies against nuclearism? It implies, first of all, clarity of analysis so that false hopes are not raised. Secondly, by exposing the serious flaws of the managerial approach there are many reasons to explore and revive support for a transformational approach. Thirdly, in responding to specific initiatives, their relationship to stabilizing the management of nuclearism should be taken into account. Fourthly, a group of BAN states should consider submitting a complaint to the International Court of Justice alleging violations of Articles VI and X of the NPT, as well as organizing in the General Assembly a request for an Advisory Opinion on whether the management of nuclearism is consistent with international law.

 

As has been the case ever since 1945 ‘living with nuclear weapons’ has been problematic, although the political context has varied over time.  The most effective tactics at the present time is to promote an educational understanding of why transformation is necessary and desirable, while management is unacceptable. Additionally, it is vital to mount sustained pressure by the governments of non-nuclear states and international civil society on nuclear weapons states to comply with all the material provisions of the NPT and abandon the geopolitical option of unlawful enforcement that is selective and discriminatory, besides being unlawful, dangerous, and a major cause of international tensions and warfare.

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Bolton’s Red Sky Worldview: ICC, International Law, and Iran

26 Sep

Bolton’s Game: Not Sovereignty, Not International Law—Clearing the Path for U.S., Geopolitical Primacy

 

To be sure, on September 10thJohn Bolton, Trump’s National Security Advisor, pushed all the thematic buttons that might beexpected of a luncheon speaker invitedto address the Federalist Society, long known asthe ideological home of rabid advocates of the so-called ‘new sovereignty.’ The hallmark of this pre-Trump neocon law bastion of Scalia worshippers was their role in the career nurturing of such jurisprudential embarrassments as John Yoo and Jack Goldsmith. Yoo the notorious author of the torture memos and Goldsmith the public servant usually give credit forcrafting an expert approval text validating ‘extreme rendition’ of CIA suspects to notorious ‘black sites,’ known around the world as safe havens for torture, surely acrude instance ofex parte criminal legalism. It should be noted that both of these individuals are senior faculty members at two of America’s finest law schools, UC Berkeley and Harvard, both of which exhibit institutional pride in the fact of treating legal ethics as integral part of professional education.

 

John Bolton was the safest of choices as a featured speaker, having earned his Federalist Society credentials many times over.  He seems perversely proud of leading the unprecedented effort on behalf of George W. Bush in 2002 to ‘unsign’ the Rome Statute, the treaty that brought the International Criminal Court (ICC) into force in 2002, and now has 123 sovereignstates as parties, including all NATO members except the U.S. and Turkey. At the talk, Bolton paused to boast of orchestrating this unusual move to highlight and underscore this repudiation of the ICC by the Bush presidency, and in the process, of the crusading success of a transnational civil society movement and a coalition of moderate governments around the world to institutionalize individual accountability of political leaders and military commanders for war crimes and crimes against humanity.  It should be humiliating that such a global undertaking to strengthen international criminal law enforcement is regarded as posing a direct threat to Americans and governmental policy. It puts a preemptivetwist on the previous reliance on ‘victors’ justice’ to ensure that none of the Allied crimes during World War II would be subjected to legal scrutiny while the crimes of German and Japanese political leaders and military commanders were being prosecuted.

 

Actually, even if Bush had not bothered to have the Clinton signature removed, the U.S. would never in this dark period of anti-internationalism have joined the ICC. To become a party to the treaty would have needed the additional step of ratification of the Rome Statute, and that would require an affirmative vote of 2/3rds of the U.S. Senate. A favorable outcome would have been even more unlikely than for Donald Trump to nominate Anita Hill or Robert Mueller as his next choices for the U.S. Supreme Court. In this sense, only the up tempo language of Bolton is notable for its willingness to denigrate and even smear the ICC.

 

Slick Willy Clinton had his own reservations about the treaty and never took the normal step following an official signature of a negotiated inter-governmental agreement of submitting it for ratification. Indeed, it is a technical violation of customary international law that imposes a good faith obligation on governments to seek formal adherence of signed treaties in accordance with constitutional procedures of the particular state. In other words, even the supposedly liberal side of American political life has opted out of its earlier tradition of supporting the institutional development of the Rule of Law on a global level as an aspect of its commitment to the role of law and institutions as essential ingredients of a peaceful and just world order.

 

Congress removed any doubt as to its hostility toward the ICC when in 2002 it passed the American Service-Members’ Protection Act, authorizing the President to use all necessary means, even force, to prevent prosecution at The Hague of Americans accused of war crimes or crimes against humanity. What is especially disturbing about such a slap at criminal accountability is the absence of slightest show of concern as to whether the allegations in a particular case were well grounded in evidence or not.  When Bolton alluded to this bit of ultra-nationalism he appropriately noted that the legislation enjoyed bipartisan support, which suggests that the American posture of claiming ‘lawless geopolitics’ for itself is a fixed feature of world order for the seeable future no matter who occupies the Oval Office. It is ironic that while criminality is ensured of impunity, the practice of impunity, a dubious encroachment on the logic of legality, is not only claimed but offered that most unusual feature of international enforcement.

 

Bolton implied that the problems of criminality in world affairs are associated with the leaders of the foreign adversaries of the United States, identifying such individuals as Saddam Hussein, Hitler, Stalin, and Qaddafi. His assertion implied that the good behavior of the United States and its allies was such as to be inherently benevolent and the bad behavior of its adversaries would require more than law to deter: “The hard men of history are not deterred by fantasies of international law such as the International Criminal Court.” We can only meekly ask, “Are the supposedly soft men  of history, such as Trump or G.W. Bush, any less undeterred?” “And why should we ever expect these hard men to be deterred if the ICC and international law are but ‘fantasies.’

 

Getting back to Bolton’s luncheon remarks, his own summary of his feverish assault on the audacity of the ICC to consider investigating Israel’s international crimes, and the alleged crimes of the Taliban and the United States in Afghanistan reads as follows:This administration will fight back to protect American constitutionalism, our sovereignty, and our citizens. No committee of foreign nations will tell us how to govern ourselves and defend our freedom. We will stand up for the US constitution abroad, just as we do at home. And, as always, in every decision we make, we will put the interests of the American people first.

 

These are predictable sentiments, given the occasion and taking into account Bolton’s long advocacy of a militarist foreign policy that disregards the restraints of law, morality, and political prudence. It isthe ethics and politics of this disregard that is Bolton’s realmessage. We should be attentive to this real message hidden within the fiery ‘sovereignty, first’ verbiage, which is that the geopolitical practices of the United States will not be subject to legal accountability no matter how flagrant the violation of fundamental norms might be in the future. Bolton may overstep the bounds of the liberal order when he attacks the ICC as an institution, which had not been previously treated as a threat to American foreign policy. Only recently did it dawn on Washington policymakers that the ICC might at some point actually challenge what the U.S. and its allies, most notably Israel, are doing in the world.

 

Previously, the U.S. was a supporter of criminal accountability of foreign leaders, especially if they were adversaries of the U.S.. It should be remembered that even during the Bush presidency, the government sent dozens of government lawyers to Iraq to help prepare a war crimes prosecution of Saddam Hussein and his entourage after their capture. This capture occurred in the course of a war of aggression initiated against Iraq in 2003 without any prior provocation. The U.S. attack, regime change, and long intrusive occupation took place, it should be recalled, despite the failure of the U.S. Government to secure the support of the UN Security Council despite a feverish attempt to gain authorization.

 

In other words, so far as even the Boltons of this world are concerned, there is nothing wrong with criminal accountability of leaders and military personnel so long as the indictments, prosecutions, and punishments are confined to enemies of the United States. Such a self-serving geopolitical appropriation of international criminal law should not be confused with legitimate law, which presupposes that the rules, norms, and procedures apply to all relevant actors, the strong as well as the weak, the victors as well as the defeated, geopolitical wrongdoers as well their adversaries.

 

What is sad about the Bolton worldview, and indeed the new sovereignty ideologues that shape the public image of the Federalist Society, aside from its influence in the Trump Era, is that it completely misunderstands the relevance of international law in this period of global interdependence and planetary challenge. State-centric world order as beset by geopolitical rivalries is a blueprint for civilizational collapse in the 21stcentury, and probably represents the worst possible way to uphold core sovereign rights and national interests over time.

 

What is still sadder is that the Bolton/Trump worldview, which seems so outlandish and anachronistic is not that extremist, compared to Democratic establishment approaches, when it comes to behavior. It represents a surreal rhetorical extension of the bipartisan consensus that is complacent about the failures of the neoliberal international order, including especially the destructive impacts of predatory globalization on democratic forms of governance, on safeguarding of social and economic rights, and on ecological sustainability.

 

As many have noted Hilary Clinton’s push toward a confrontation with Russia was more in keeping with Bolton’s preferred foreign policy than the more accommodationist proposals of Trump during his presidential campaign. It is against such a background that I reach the lamentable conclusion that when it comes world peace and global justice the Democratic Party establishment has little to offer when it comes to foreign policy, and may be more inclined to initiate wars and raise geopolitical tensions than even their reactionary and militarist Republican rivals. Bernie Sanders, although international affairs is not his strong suit, at least gestured toward a less militarist and dysfunctional  foreign policy. For the Democratic Party to generate enthusiasm upon American youth and the deeply discontented in the country it must reinvent itself by embracing progressive and forthcoming policies than in the recent past and positions that are more constructive and programmatic than even the Sanders foreign policy. Without such bold moves there will be a loud sigh of relief when Trump loses control of Congress in November, and even louder one when Trump leaves the White House, but the American ship of state will still resemble the maiden voyage of the Titantic.

 

As if to confirm the analysis above we should take account of Bolton past warmongering toward North Korea including advocating a preemptive strike, and recently articulating grossly unlawful threats of force directed at Iran. It should be appreciated that contemporary international law, as embodied in Article 2(4) of the UN Charter forbids threatsas well as uses of aggressive force.

Such a prohibition underlines the criminality of Bolton’s recent formulations of military threats directed at Iran: “I might imagine they [“the mullahs of Tehran”] would take me seriously when I assure them today: If you cross us, our allies, or our partners; if you harm our citizens; if you continue to lie, cheat and deceive, yes, there will indeed be hell to pay.” Such chilling words must be understood in the context of Bolton’s past advocacy of bombing Iran and of the Trump approach to the region that can be summarized in a few words: ‘do what Netanyahu wants.’

 

Even if war and aggression do not actually occur, and we must pray that they do not, this kind of geopolitical bullying by a leading official of a country that has up to one thousand military bases spread around the world should be criminalized, and not just criticized as intemperate.

 

 

Weaponizing the ‘New Anti-Semitism’

22 Sep

Prefatory Note: This post consists of an opinion piece developed by several members of California Scholars for Academic Freedom (cs4af) titled “Weaponizing the ‘New Antisemitism’”.  In addition to myself, those responsible for this short essay are Vida Samiian, Co-coordinator, California Scholars for Academic Freedom, Professor of Linguistics and Dean Emerita, California State University, Fresno and Lisa Rofel, Co-coordinator, California Scholars for Academic Freedom, Professor Emeritus of Anthropology, Co-Director, Center for Emerging Worlds, University of California, Santa Cruz, and David Lloyd, Professor of Literature, University of California, Riverside. The piece was initially published in The Abolition Journal, September 20, 2018, with this link https://abolitionjournal.org/weaponizing-the-new-antisemitism/

Let me add that I did not contribute to the parts of the response that describe my positive credentials. I do believe that such indirect smears are intimidating for younger more vulnerable members of the academic community, creating a public image of a controversial personality that could be harmful when career decisions are made behind closed doors. The direct effort to discredit Corbyn is also shameful, depriving the public of the opportunity to understand the views of an important political figure rather than to create diversionary attention to such irresponsible charges that cannot be left unanswered without leaving presumptions of doubt, or worse.]

Weaponizing the ‘New Antisemitism’

It was shocking to read on August 31, 2018 the following headline in the British tabloid, The Sun “Jeremy Corbyn paid tribute to a disgraced ex-UN official who ‘blamed Boston bombings on Israel.’”The “disgraced ex-UN official” referenced by The Sunis Professor Richard Falk1, a widely respected scholar of international law and a consistent advocate of human rights for all. The tabloid’s intent was to demonstrate that allegations of antisemitism directed at Corbyn were justified because he was praising a notorious ‘antisemite’.

Revealingly, the article raised, out of context, views Professor Falk had expressed about the blowback dimensions of the Boston Marathon and concerns about how the U.S. Government handled skeptical reactions to the official version of 9/11. It made much of the fact that Falk had commented that Israel’s outsized influence on the conduct of American foreign policy contributed to blowback effects, generating rage and frustration vented in violent extremism. However, a careful reading of Professor Falk’s body of work demonstrates that nowhere in his writings is any animus whatsoever against Jews as a people. His criticisms were directed at the U.S. government for refusing to pursue policies that genuinely promoted mutual respect and understanding. As a public intellectual, it is within Professor Falk’s expertise and right both to academic freedom and Frist Amendment protections to analyze and criticize US policy without fear of intimidation or slander.

This kind of attack tricks the mind by extending the discrediting label of antisemitism to any line of thought or action that is seen as critical of Israel. The old antisemitism was about the hatred of Jews; the new charge of antisemitism is about criticism of Israel, although it seeks to conflate criticism of Israel with hatred of Jews. Ironically, it also identifies all Jews with the state of Israel, an unheard-of and potentially racist denial to Jews of the right to criticize the state that pretends to represent them.

The California Scholars for Academic Freedom2, a group of over 200 California scholars who defend academic freedom of faculty and students in the academy and beyond, join Professor Richard Falk in voicing concern regarding the smear tactic used by ultra-Zionist defenders of Israel in defaming an internationally known academic and human rights leader. Beyond that, we are gravely concerned with the attempt to shut down debate by smearing opposition voices to prevent their message from being heard or heeded. Such tactics are intrinsically shameful as they try to evade substantive argument by recourse to character assassination.

In this instance, it shifts the conversation away from Corbyn’s programs, which are more difficult to discredit because they speak to the many ordinary people in Britain who have suffered for many years from neoliberal regimes of austerity. Blairites in the Labour Party who are allergic to Corbyn because of his supposedly socialist message seem quite content to hide behind this dirty campaign to paint Corbyn as an anti-Semite.  It is a perfect catch-22: he dare not ignore the charge or it will be taken as true, but by responding he is weakening his own message and political credibility as a future national leader.  Labour’s main constituencies in Britain want to determine whether his economic program is workable and likely to make their lives better than they are under a Tory government. They are deprived of this understanding by these demeaning taunts.

The attacks on Corbyn and Falk are all too familiar to any of us who have expressed our criticisms of Israel or on US policy in the Middle East. For those of us in academic life, ideas are as vital as oxygen, and when we are made to pay a price for telling the truth as we see it the outcome is not only chilling, but a direct attack on the freedom of thought and expression. It signals to many members of academic communities to shut up about Israel/Palestine or their careers will be in jeopardy.  Where successful, such censorship also raises the specter of wider efforts to curtail freedom of expression.

The issue is not entirely new. During the Cold War it could prove toxic for faculty members to be perceived as Marxists or even as intellectuals who thought that Marxist traditions of thought were important for their historical relevance to the ideological battles going on around the world. Professors at some leading universities were required to sign loyalty oaths, and if they refused, were expected to resign or were fired. This narrowed the experience of students and closed minds to alternatives to the ideology prevailing in the United States. If a democratic society is afraid of ideas, especially controversial ideas, then it forfeits much of the claim of being democratic and ends up cheering demagogues.

During the long campaign against South African apartheid within universities, churches, unions, and in a variety of other settings, there were criticisms made of demands that investments be divested or that athletes and cultural figures boycott South Africa. There were discussions about the limits of nonviolent activism, and again criticism was made of professors who were seen as encouraging militancy. Yet what was not done was to smear scholars and activists with epithets designed to portray opponents of apartheid as despicable human beings.

Why has this red flag of antisemitism has been waved so vigorously and irresponsibly in the last few years and not earlier? For decades, supporters of Israel would come to discussions where pro-Palestinian positions were being expressed armed with questions prepared in advance, and often delivered in an angry tone of voice. The purpose was to gain the upper hand substantively, or at least to join the issues in ways that would convince most of the audience that the issue was too complicated or controversial. But rarely if ever was the anger directed at the character of the speaker unless, as in the rarest of cases, the background of Israeli critics included membership in organizations or authorship of screeds expressing hatred of Jews, that is, genuine antisemitism.

With the appointment of Kenneth Marcus, a former Israel lobbyist, as the top civil rights enforcer of the US Department of Education, we are already witnessing a new level of aggression against any criticism of Israel’s illegal occupation of Palestinian territories and denial of human rights to Palestinians in the occupied territories. The request to reopen the Rutgers University case after four years is a case in point. Equally alarming is the British Labour Party’s adoption of the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism which conflates not only criticism of Israel but also anti-Zionism with antisemitism, in defiance of both logic and history, given the long tradition of Jewish anti-Zionism. These efforts are alarming attacks that shake the foundation of our first amendment rights protected under the Constitution.

The shift in tactics also reflects Israel’s awareness that its positions cannot be convincingly defended because they are so clearly at odds with elemental notions of law and morality. Unable to win debates where the facts are so damaging to their political messaging, they seek to silence the messenger by defamation. In consequence, reputable scholars lose academic appointments or are silently blacklisted and university institutions are increasingly reluctant to antagonize trustees or donors by hosting serious inquiries into the Palestinian national movement or events that view critically the evolution of the Zionist project. The resulting media feeding frenzy justifies its complicity by claiming that with so much smoke there must be fire somewhere.

In short, our political and academic freedoms are being hijacked by these defamatory tactics. Worst of all, the charges made under this ‘new antisemitism’ that confuses political criticism with racial hatred is harming the quality of political life in democratic societies and dangerously merging political controversy with ethnic prejudice.

1.  RICHARD FALKis Albert G. Milbank Professor Emeritus of International Law at Princeton University and has been a Visiting Distinguished Professor in Global and International Studies at the University of California, Santa Barbara, where he currently co-leads UCSB’s Orfalea Center Project on Global Climate Change, Human Security, and Democracy.  He taught international law and politics at Princeton University for 40 years. In 2001, he served on a three-person Human Rights Inquiry Commission for the Palestine Territories that was appointed by the United Nations, and previously on the Independent International Commission on Kosovo.  He acted as counsel to Ethiopia and Liberia in the Southwest Africa Case before the International Court of Justice. In 2008 Falk was appointed by the UN Human Rights Council to a six-year term as UN Special Rapporteur on “the situation of human rights in the Palestinian territories occupied since 1967.” He serves asChair of the Nuclear Age Peace Foundation’s Board of Directors and as honorary vice president of the American Society of Internal Law. He is the author of over twenty books and editor of another twenty and numerous journal articles. He received his BS from the Wharton School, University of Pennsylvania; LLB from Yale Law School; and JSD from Harvard University.

  1. CALIFORNIA SCHOLARS FOR ACADEMIC FREEDOM(cs4af) is a group of over 200 scholars who defend academic freedom, the right of shared governance, and the First Amendment rights of faculty and students in the academy and beyond. We recognize that violations of academic freedom anywhere are threats to academic freedom everywhere. California Scholars for Academic Freedom investigates legislative and administrative infringements on freedom of speech and assembly, and it raises the consciousness of politicians, university regents and administrators, faculty, students and the public at large through open letters, press releases, petitions, statements, and articles.

 

Human Rights, State Sovereignty, and International Law: An Interview

20 Sep

[Prefatory Note: The interview below conducted by my friend, journalist and author C.J. Polychroniou was initially published in the Global Policy Journal, on 11 September 2018, the 17thanniversary of the World Trade Center attacks and the 45thanniversary of the Pinochet coup in Chile that assassinated the elected president of the country Salvador Allende. Had I been asked, I might have commented on the fateful linkage between those two catastrophic events, both giving rise to massive suffering, with the earlier violent and sinister event enjoying the encouragement and possibly participation of the Washington deep state. The text printed below has been slightly modified for style]

 

 

Human Rights, State Sovereignty, and International Law: An Interview

We live in an era where virtually every government on the planet claims to pay allegiance to human rights and respect for international law. Yet, violations of human rights and plain human decency continue to occur with disturbing frequency in many parts of the world, including many allegedly “democratic” countries such as the United States, Russia, and Israel. Indeed, Donald Trump’s immigration policy, Putin’s systematic repression of dissidents, and Israel’s abominable treatment of Palestinians seem to make a mockery of the principle of human rights. Is this because of “faulty” forms of government or because of some Inherent tension between state sovereignty and human rights? And what about the international regime of human rights? How effective is it in protecting human rights?

  1. J. Polychroniou: Richard, you taught International Law and International Affairs at Princeton University for nearly half a century. How has international law changed from the time you started out as a young scholar to the present?

Richard Falk: You pose an interesting question that I have not previously thought about, yet just asking it makes me realize that this was a serious oversight on my part. When I started thinking on my own about the role and relevance of international law during my early teaching experience in the mid-1950s, I was naively optimistic about the future, and without being very self-aware, I now understand that I assumed a moral trajectory that made the future work out to be an improvement on the past and present, that there is ebb and flow, but overall a record of moral progress in collective behavior, including at the level of relations among sovereign states. I thought of the expanding role of international law as a major instrument for advancing progress toward a peaceful and equitable world, and endeavored in my writing to encourage the U.S. Government to align its foreign policy with international law, arguing, I suppose in a liberal vein, that such alignment would promote a better future for all while at the same time being beneficial for the United States, especially given the overriding interest in avoiding World War III.

 

My views gradually evolved in more critical and nuanced directions. As my interests turned toward the dynamics of decolonization, I came to appreciate that international law had been employed to legitimize European colonialism, including the exploitative economic arrangements that were imposed on many countries in the global south, whether or not they were colonies. I realized that the idealistic identification of international law with peace and justice was misleading, and at most only half of the story. International law was generated by powerful governments and economic elites to serve their overlapping interests, and was respected only so long as the vital interests of these dominant states were not being encroached upon.

 

The Vietnam War further influenced me to adopt a more cautious view of international law, and even more so, of the United Nations. I opposed the war at its outset from the perspective of international law, citing the most basic prohibitions on intervention in the internal affairs of sovereign states and the core prohibition of the UIN Charter against all recourses to aggressive or non-defensive force. I did find it useful to put the debate on Vietnam policy in a legal format as the country was then under the sway of liberal leadership supposedly responsive to such considerations, but even back then subject to the logic of Cold War geopolitics and its silent partner, global capitalism. The defenders of Vietnam policy, seemingly motivated by Cold War considerations, relied on legal apologetics as well as claims that it was important for world order to contain the expansion of Communist influence throughout Asia, and that the real adversary in Vietnam was China rather than North Vietnam. The legal debate to which I devoted energy for ten years convinced me that international law on war/peace issues was opportunistically subordinated to geopolitics, including by the Western democracies, and besides, legal counter-arguments were always available to governments eager to invoke law to disguise their reliance on geopolitical priorities, especially in the realm of war/peace. In comparison, international law remains useful, effective, and even necessary for many routine transnational activities of people and governments, stabilizing trade and investment relations, but often in ways that favor the rich and influential, meaning that issues pertaining to such questions as maritime safety, international communications, and global tourism exhibit a surprisingly consistent adherence to an international law framework.

 

The U.S. global leadership role is unique in this respect in the period since 1945. In the early postwar period the U.S. seemed to be the champion of a law-regulated world order responsive to the UN Charter framework. This was never an accurate portrayal of American foreign policy as the Cold War prompted a variety of unlawful interventions after World War II, including assassination plots against foreign leaders perceived as leftists. After the Vietnam War the United States Government gradually quietly seemed to recognize that its foreign policy goals could not be achieved by relying on an international law approach, a recognition that became especially clear in carrying out its unconditional political commitment to support Israel however defiant of international norms and UN authority. The moves away from liberal internationalism accelerated during the conservative and nationalistic presidency of Ronald Reagan who was instinctively opposed to adapting American policy to an international law framework.

 

It was during the presidency of George W. Bush that international law was been further marginalized by being put aside or crudely reinterpreted whenever seen as an obstacle to a preferred course of action. The United States started spiraling out of control after the 9/11 attacks in the direction of redefining itself an illiberal democracy, a process reaching new heights during the Trump presidency when even the democratic foundational principles of the republic were increasingly drawn into question. This dynamic of mindless lawlessness has been reinforced by the global rise of ultra-nationalist political movements led by demagogic figures that have gained control of important governments throughout the world. For these movements, nationalist goals are always be given precedence without a second thought about legal or moral consequences. From these rightest perspectives international law should not be allowed to interfere with fidelity to a nationalist agenda. At the same time, the pressures exerted by migratory flows stemming from war torn regions, especially the Middle East and Africa, and from ecologically challenged habitats, have weakened mainstream support for human rights, and especially for those who seek relief by claiming a status of refugee or asylum seeker. Despite neoliberal globalization, and in some respects, as a reaction to it, the state system has become more statist than ever, with a corresponding retreat in humanitarian efforts to protect the human rights of vulnerable peoples, especially if they are regarded as strangers to the ethnic and religious community of a particular nation state.

 

In making this negative assessment, it is important not to overlook the central relevance of international law and human rights to civil society movements for peace, justice, and ecological sustainability. These normative sources of authority give peoples a legitimated discourse by which to oppose oppressive tendencies of the state or international institutions, and to project images of alternative futures that are more benevolent from the perspective of promoting a more satisfying shared destiny for the peoples of the world, with a special emphasis on protecting those who are most vulnerable. It is civil society that has tried to keep the humanside of human rights as integral to the protective mission of law, while governments are again limiting their view of rights to the rightsside as, at most, an entitlement of a national citizenry, especially those who are native born, and even here there is notable slippage by way of surveillance and meta-data scrutiny directed at the internal population.         

 

Q: Human rights are the cornerstone underpinning the rule of law, yet many governments throughout the world violate human rights with frightening frequency. Is there an inherent tension human rights and state sovereignty? Or, to phrase the question differently, do human rights challenge state sovereignty?

A: I believe the premise of your question is somewhat misleading. It may be appropriate to suggest that human rightsshould become the cornerstone of a global rule of law, and that it does function internally in this manner in a genuine democratic state. In international society the basis of an effective rule of law is mutual self-interest and reciprocity especially in the context of commercial and financial arrangemenst, maritime safety, and diplomatic relations. When the Universal Declaration of Human Rights (1948) (UDHR) was drafted, largely under the influence of Western liberal internationalist values, shortly after World War II it was looked upon as a largely aspirational document with non-existent expectations with respect to compliance or implementation. This was partly signaled by labeling the document as a Declaration,which meant that it was without obligatory force. It has been my view that the UDHR would not have won widespread support from leading government had it been negotiated as a lawmaking treaty with the effect of eroding sovereign rights. In this sense, compliance with the norms contained in the UDHR depends on what I have called in the past voluntary international law.In effect, international human rights standards were brought into being only because they were understood to be unenforceable, but this initial cynicism was challenged over time by a series of unanticipated developments.

Several factors altered these low expectations in ways that have given a weak obligatory status to some norms encompassed by the international law of human rights. For one thing, human rights NGOs emerged such as Amnesty International and Human Rights Watch. These civil society actors adopted as their mission campaigns to exert pressure by way of naming and shaming to induce compliance with human rights standards by governments. For another, the West found it useful to claim for itself democratic practices relating to human rights that were allegedly absent or deficient in the Soviet Union and East Europe, drawing a propaganda contrast between the free worldand the Soviet blocthat was centered on degrees of adherence to human rights in the liberal sense of individual rights in the political domain. Thus human rights became a valuable propaganda tool to convey what distinguished Cold War adversaries from one another in a self-serving manner. The Soviet Union countered Western allegations by claiming that human rights should be conceived more collectively in relation to societies as a whole and with an awareness of class differences, and thus emphasized adherence to economic and social rights as beneficial for the entire citizenry. This ideological difference, combined with the push for obligatory standards in international law, led to the artificial division of human rights into two parts, and their formulation in two separate treaties: Convention on Civil and Political Rights (1966) and Convention of Economic, Social and Cultural Rights (1966). As might have been anticipated, the Western countries give their entire emphasis to civil and political rights, and deny any obligatory force to economic, social, and cultural rights, which are derided as unenforceable and inconsistent with the workings of market economies that sort out winners from losers without efforts to protect those who are victimized by market forces.

 

Against this background two important international developments lent practical political significance to these conceptual issues. First, the efforts of the countries in East Europe to gain freedom from Soviet rule, led to movements of resistance organized around demands for adherence to human rights by the institutions of the state. Secondly, the UN-backed Anti-Apartheid Campaign illustrated that human rights, if widely backed on a global level, can be a formidable instrument of soft power resistance to an oppressive regime of the sort that governed apartheid South Africa. In such contexts, international law and human rights played important roles in struggles by people against repressive conditions, and deserve appreciation by progressives who are otherwise dismissive of hypocritical legalism and moralism as the means by which the rich and powerful hide their reliance on naked power to achieve their selfish ends.

 

These developments suggest the emergence of human rights, but not yet its global acceptance as enforceable law. Particularly over the course of this century human rights have been under intense pressure from a number of sources. First came the American response to the 9/11 attacks in 2001 that produced a counterterrorist campaign that subjected suspects to torture and indefinite detention without charges or trial. Then came the migration and refugee crises that exerted pressures on various states to close their borders, despite the life-threatening denials of human rights entailed. Finally, came the rise of autocratic leaders who relied on scapegoats and fear-mongering to justify disregard of rights by governmental institutions, especially of all residents who lacked the panoply of credentials relevant to nationality and citizenship.

 

We can work toward a world in which there is a global rule of law that embodies human rights, but such a world does not now exist, and to be fair, never existed. Sovereignty based on territorial boundaries and international recognition, and given emotional content by nationalist and patrioteering ideologies, have all along tended to override human rights concerns whenever the two sources of authority clash. Despite the use of the word humanthe real perception of human rightsremains dependent for implementation on national procedures of implementation, which has meant national bias and selectivity.

 

Q: How does Donald Trump’s immigration policy square with human rights and international law?

A: Trumps behavior on immigration issues proceeds as if international humanitarian law doesnt exist, or at least doesnt count. His approach to Muslim potential immigrants or undocumented Hispanics living in the United States displays a monumental indifference and lack of empathy to whether such an identity should be respected and protected. Trumps sole criterion claims to be whether or not it is good for America with a pragmatic and selective approach to law enforcement (useful with respect to undocumented immigrants) and a total disregard for the values and norms of human rights. Overall, Trump has exhibited contempt for international law treaties that were considered when negotiated as major breakthroughs contributing to peace, security, and a sustainable environment. Among his most notable repudiations of law-oriented approaches to difficult international issues were his withdrawal from 2014 Climate Change Agreement, repudiation of the 2015 Nuclear Program (5 +1) Agreement with Iran, and refusal to take part in international efforts to develop a humane and collective approach to problems arising from global migration and refugee flows. Trumps ultra-nationalist and Islamophobic political agenda is self-consciously and deliberately insensitive to claims advanced on the basis of international law or simple morality. It is a view that accords preferences to geopolitical opportunism in all sectors of international life that give unreserved support to nationalist priorities while arrogantly refusing to take into account considerations of legality or of moral and political legitimacy.

 

Q: Ever since it’s creation as a nation-state, Israel has shown an absolutely brutal face towards the Palestinian people. Why is the so-called international community allowing Israel to continue with its inhumane stance towards the Palestinians?

A: I think the fundamental explanation for this long experience of Israeli oppressive practices and policies with respect to the Palestinian people flows directly from the essential nature of the Zionist project to establish an exclusivist Jewish state in a predominantly non-Jewish society, and to do so during the long twilight of European colonialism. This reality was further shaped by the Zionist insistence on seeking to be a legitimate modern secular state that respects human rights and formally operates as a constitutional democracy. Such Zionist goals meant that to be Jewish and to be democratic led directly to the forcible dispossession of as many as 750,000 non-Jewish residents of Palestine in 1947 in events differentially remembered by the Palestinians as the Nakba, or great catastrophe,and by the Israelis as the War of Independence. My point is that ethnic cleansing was embedded in the establishment of a majoritarian and exclusivist Jewish state from the moment that the  Israel came into being as a sovereign state, which was dubiously admitted to the United Nations. This insistence on being an exclusivist Jewish state was always embedded in the Zionist Project, but it was not acknowledged nor revealed until the passage of the Israel Nation State Law of the Jewish People a few months ago. This law removes any ambiguity, converting the de facto realities of an apartheid state into a self-proclaimed de jure framework.

 

There is a further issue of great importance. The idea of self-determination gained prominence during the period after World War II, gaining momentum as a result of a series of anti-colonial struggles involving countries throughout Asia and Africa. The Palestinian people could not be expected to submit to the Zionist Project without doing all in their power by way of resistance, and archival research has conclusively demonstrated that Palestinian resistance was anticipated by early Zionist leaders. These prospects and realities of resistance generated Israeli responses designed not just to uphold security, but to crush Palestinian hopes and lead to Palestinian submission to an acceptance of what was made to appear to be a lost cause.

The supposed Trump deal of the centuryis a geopolitical reinforcement of Israeli efforts to compel the Palestinians to accept an Israeli victory, and to content themselves with some improvements in the economics of everyday life attainable only under Israels political and cultural domination. Again, the cycle of resistance and repression is mutually reinforcing, and can be expected to continue until Israel is forced by pressure to recalculate its interests so as to reach a political compromise capable of producing sustainable peace based on the equality of the two peoples. This is what happened in South Africa, coming upon the world as a great surprise. It came about as a result of mounting worldwide soft power pressures that led the political leadership to accept the dismantling of the apartheid regime in the country as a lesser of evils. Until Israels political leaders reach such a point, there will be escalating patterns of Palestinian resistance, reinforced by international solidarity initiatives, giving way to interludes of intensified Israeli repression, and on and on, a vicious cycle seemingly without end, but one that will at some point yield to Palestinian pressures.

 

Of course, in the background until recently, was the relevance of the Jewish diaspora as creating a geopolitical situation that shielded Israel from efforts to implement either UN majority views on how to resolve the conflict or to exert inter-governmental pressures on Israel by way of sanctions. Zionism is a non-territorial world movement with a territorial base in Israel since 1948. With Trump in the White House Israel is assured of unlimited political support for its policies of brutality against the Palestinian people as well as for the realization of its maximal territorial ambitions. This development is accentuated by the broader developments in the Middle East that have led to a convergence of primary interests of Arab governments with the regional policies of Israel, which has meant a weakening of regional and international governmentalsupport for the Palestinian national struggle. The failure of the Palestinian movement to achieve political unity contributes further to the current ordeal being daily experienced by the Palestinian people as the excessive Israeli violence at the Gaza border in response to a largely nonviolent protest movement has recently demonstrated so dramatically in weekly killings and massive casualties that has gone on for many months.

 

 

Q: Numerous artists withdrew recently their participation from a music festival in Israel, apparently under pressure from the Boycott, Divestment, and Sanctions (BDS) movement. Given that Israel is not facing the sort of international isolation that apartheid South Africa begun to face years before it’s collapse, is BDS of any concrete benefit to the Palestinian people, or merely a plain irritation for the Israeli government?

 

The growing impact of the BDS Campaign is a sign that global solidarity movement of support for the achievement of Palestinian basic rights is gaining political traction throughout the world. With the UN unable to implement its numerous resolutions based on upholding Palestinian rights under international law and the Oslo peace diplomacyabandoned after falling into a condition of disrepute, civil society has both the opportunity and responsibility to play a central role in creating the preconditions for a peaceful settlement of the conflict in a manner that recognizes the rights and equality of Jews and non-Jews. BDS is the spearhead of this form of coercive nonviolent efforts to obtain compliance with basic requirements of law and morality. It should be kept in mind that BDS was not an internationalist venture, but formed in response to a call for solidarity more than a decade ago by a large number of NGOs based in Palestinians and has continued to be led by Palestinians.

The frantic efforts of Israel and its supporters around the world to criminalize participation in BDS seems an over-reaction to the effectiveness of BDS as a tactic of opposition and a challenge to the legitimacy of Israel as an exclusivist or apartheid Jewish state. Such moves to defame BDS supporters and even to criminalize participation is posing a serious danger to free expression in the West, including at universities. It should be appreciated that BDS tactics are entirely nonviolent, although admittedly militant with a coercive intention, and based on transnational civil society enforcementinitiatives in settings where the institutions and procedures of global governance are unable or unwilling to protect the rights of vulnerable peoples. If such forms of free expression are suppressed it is a huge setback for democratic governance, as well as creating a dangerous precedent for the future.

 

The pronounced efforts to brand BDS as anti-Semiticis particularly regressive and unfortunate. By this insistence in defining anti-Semitism as embracing harsh criticism of Israel it directly challenges freedom of expression and weakens the capacity of society to promote social and economic justice. Besides this, by conflating criticism of Israel with hatred of Jews, Zionist opportunism is confusing the nature of anti-Semitism in ways that obscure real threats of ethnic hatred, which is as unacceptable to BDS supporters as it is to BDS attackers. The definitions of what sometimes called the new anti-Semitismby the U.S. State Department and by the British Labour Party are illustrative of this unfortunate trend.

 

At the same time it is important to appreciate the potential leverage exerted by the BDS campaign. Roger Waters, co-founder of Pink Floyd, recently called cultural and sports boycotts of Israel by world class artists and celebrity athletes as a game changer.He had in mind at the time the singer Lana Del Ray who had just withdrawn from scheduled concert appearances in Israel and the star Argentinian footballer, Lionel Messi, who captained the national team that cancelled a friendlywith Israel prior to the Moscow World Cup. Waters explains his animating motivation with these words tied to the wider struggle for human dignity:

“And as I say often on stage, when we all got together in 1948 in Paris, and the Universal Declaration of Human Rights was signed by the then-fledgling United Nations, it declares that all human beings all over the world, irrespective of their religion, ethnicity, or nationality, have a natural right to basic civil and human rights, and to the right of self-determination. And I believe that to be true. So this struggle is really only an attempt to implement those brave words from 1948.”

 

The long victimization of the Palestinian people is a stark reminder that the original undertaking to promote human rights in 1948 remains an almost invisible distant goal. In praising those who support boycotts Waters declared that it is simply “the right thing to do.” In so declaring he was explicitly invoking Archbishop Tutu’s influential remark that ‘neutrality in the face of injustice’ is morally unacceptable.

 

It is helpful to remember that most of the positive changes with respect to law and morality generally start on city streets with expression of outrage directed at prevailing policies. This was true of the civil rights movement in America, of the protests against Communist rule in Eastern Europe, of the Arab Spring, of the struggles for gay rights, and indeed it is descriptive of every notable positive development that has occurred during my lifetime. Yet one should not get carried away. We should not, however, uncritically glamorize movements from below. Fascism was responsive to populist frustrations giving rise to demagogues who stir crowds to frenzy with their demonic solutions to the ills of society, and most ominously, we such patterns presently gaining political ground in many countries. 

 

 

Q: You served for many years as United Nations Special Rapporteur for Palestinian Human Rights. What has been the role of the UN towards the so-called Israeli-Palestinian conflict, and where does international law stand over this matter?

 

My experience at the UN as Special Rapporteur helped me understand why the UN is important, yet extremely limited in its capacity to affect behavior due to its lack of independent political capabilities needed to implement its recommendations. This gap between capabilities and expectations was particularly apparent in relation to the Palestinian issue. In both the Human Rights Council in Geneva and the General Assembly in New York, the Palestinian struggle to achieve their rights was supported rhetorically by an overwhelming majority of states, yet it was opposed by important geopolitical actors, especially the United States. In concrete terms this UN majority was able to insist on fact finding inquiries into allegations of Israeli wrongdoing and to release reports extremely critical of Israels behavior, but the Organization was blocked as soon as it tried to implement any recommendations that would challenge Israels policies and practices. Such outcomes on the level of behavior give rise to impressions of UN irrelevance that are as misleading as are excessive reliance on the UN, as now constituted, to serve as a reliable vehicle for achieving the values of peace, global justice, and ecological stability.

 

In a positive manner, the UN was a crucial authority with respect to validating Palestinian grievances, and helped Palestine in its effort to win the Legitimacy War with Israel, which is important. Legitimacy Wars are foughtto get the upper hand with world public opinion by appealing to international law and international morality. In the early period of Israels existence, with the cloud of liberal guilt associated with the Holocaust still shaping political consciousness, the wrongs done to the Palestinian people were virtually erased from awareness in the West. In recent years, the soft power balance has been shifting in Palestines favor just as the hard power balance is more weighted in Israels favor than ever before. It should be appreciated that most political struggles relating to self-determination during the last century were won in the end by the side that won the Legitimacy War, and not the side with military superiority. This observation applies not only to the wars against European colonialism, but it also relates to many of the American regime-changing interventions as well as most graphically to the Vietnam War in which the U.S. exerted military dominance and yet lost the political struggle at the root of the conflict in the end. Explaining this apparent paradox would loosen the hold of militarism on the political imagination in this century.

 

Another aspect of my experience as a UN appointee, although not a UN civil servant as the position was voluntary and unpaid, was a bewildering mixture of independence and defamation. Even the Secretary General insulted me on more than one occasion but admitted that he lacked the authority to dismiss me. Only the Human Rights Council could do this if a majority of member states found that I exceeded my mandate. Throughout my tenure at the UN the HRC overwhelmingly supported my efforts as Special Rapporteur. At the same time, ultra-Zionist NGOs, UN Watch and NGO Monitor, were free to roam the halls, and release all sorts of defamatory material about me without losing their accreditation at the UN, and even having an unseemly leverage with several pro-Israeli governments, prompting diplomats representing the U.S., UK, and Canada to echo their attacks almost word for word.

 

My position at the UN was tricky in unexpected other respects, with pitfalls that I discovered only in the course of my experience. Perhaps, most significantly, I came to realize that the Palestinian Authority (PA), which represents Palestine at the UN and originally backed my appointment, pushed hard behind the scenes in my first years in the position to have me dismissed by the HRC, and further put me for awhile under rather intense pressure to resign. I only began to understand this when it became clear that the PA seemed to put greater stress on their rivalry with Hamas than with their struggle for Palestinian self-determination, and as well, were somewhat compromised by their quasi-collaborative relationship with Israel, especially with respect to West Bank security arrangements and access to international aid cash flows. What irritated the PA was my effort to present the role of Hamas fairly, especially as it related to developments in Gaza, and the initiatives taken by Hamas leaders to negotiate a long-term ceasefire with Israel. With the passage of time I did work out live and let live workable arrangements with the PA who were ably represented in Geneva and New York by Palestinian diplomats who were dedicated to achieving Palestinian self-determination but believed their effectiveness depended upon accepting UN constraints associated with an acceptance of the reality that it is the U.S. that calls the shots on many issues of concern to Palestine. In other words, I learned to be less judgmental without giving ground on my essential effort to discern and report the truth as I perceived it.

 

Finally, I was forced to accept the fact that although I did my best for six years to express the realities of the Palestinian situation, focusing on the denial of basic rights under international law, including the inescapable relevance of continuous unlawful Israeli encroachments on occupied Palestinian by settlements, the wall, disrupting mobility, and numerous other measures, the Palestinian situation on the ground got worse and worse with the passage of each year. Israel never adhered to international law treaty arrangements that obliged UN members to cooperate with the UN in the discharge of its official undertakings. When I tried to enter Israel at the end of 2008 on an official mission trip, I was expelled and detained in a prison cell for more than 16 hours. Despite this, the UN was itself timid and intimidated,  unwilling to mount a public protest or to secure my access throughout my term.

 

What I did achieve as SR was to facilitate some shifts in the public discourse on the Palestinian struggle within the UN itself and in relation to the NGO community and the attentive media. It became more possible to speak of settler colonialismin relation to the Zionist Project of establishing a Jewish state with the blessings of British Foreign Office in 1917 although the Jewish population of Palestine at the time was less than 6% and to use annexationwith reference to the expansion of the settlements established in violation of international humanitarian law governing belligerent occupation and even to refer to apartheidas the essential character of the manner in which Israel maintained control over the deliberately fragmented Palestinian people. It was these assessments that exerted enough influence to help explain the personal attacks on me as an anti-Semite and political extremist. It also led me to have very positive relations with many of the delegations representing countries supportive of Palestine and to receive private reassurances of support and even admiration from high-ranking UN staff members.

 

Q: If state sovereignty and international protection of human rights are incompatible, what is the way out of this conundrum?

 A: There are two obvious paths to achieve greater degrees of compatibility. The first path would involve stronger regional and global mechanisms to promote compliance with fundamental human rights standards. In a UN context this would require a major reform unlikely to take place in the foreseeable future, the elimination of the right of veto enjoyed by the five permanent members of the UN Security Council or at least an agreed renunciation of the veto in situations involving human rights as distinct from peace and security. In effect, this would lead to a weakening of geopolitical leverage within the UN and a corresponding strengthening of the Rule of Law, and more generally, of international law. Since such developments, although morally desirable, are implausible given the present political realities of international life, the best current hope to promote compatibility from withoutmay be at the regional level where shared values and interests are greater and geopolitical interference less pronounced. This regional option seems more available, for example, in Latin America than East Asia, although in the face of the global rise of autocratic patterns of national governance, the prospects for regional implementation of human rights standards are also not currently very bright.

 

The second path to compatibility is via stronger efforts at national implementation. Such a possibility seemed more realistic at times when constitutional democracy seemed the wave of the future. Now with the tide turning in autocratic and ultra-nationalistic directions the resistance to any domestic imposition of international standards seems doubtful if they clash with national policies and practices. To the extent that national political systems embody human rights standards as a matter of national policy the issue of compatibility is minimized, and in such circumstances there are few real tensions associated with the assertion of sovereign rights and national autonomy. When security crises, as in the aftermath of the 9/11 attacks, push leaders to take expedient measures in the name of counterterrorism, then as was the case in the United States, even torture becomes legalizedon the national level, and international treaty commitments to the contrary are ignored.

As the former High Commissioner for Human Rights, Prince Zeid Raad al Hussein declared in a speech at the observance of the 25thanniversary of the UN Conference on Human Rights and Development held in Vienna, human rights are experiencing a retreat across many fronts at the present time with few signs of any significant countervailing moves. The illiberal state, which almost everywhere is replacing the liberal state, no longer as a matter of course embraces humane values, with the weakening of a human rights as a result. To the extent that there continue to exist a robust constituency for human rights it is situated in civil society, and its transnational initiatives. In this regard, I would view the BDS Campaign in support of Palestinian grievances as essentially a popular movement dedicated to achieving basic human rights for a long oppressed people.

 

 

In Praise of Serena Williams

13 Sep

In Praise of Serena Williams

 

Serena Williams is a wonder of our time, fantastic as an athlete, enthralling as a competitor, and above all, a shining example of what it is possible to achieve if raw talent and a caring, brave, and moral sensibility is nurtured toward greatness.

 

Such praise would have seemed superfluous before the final of U.S. Open some days ago, when Williams fought her best against a harsh referee and a super-gifted court challenge mounted by Naomi Osaka, a rising star who may someday realize that her victory over the greatest woman tennis player ever, still near the top of her game, was made more special rather than diminished by the drama and controversy stirred by her celebrity opponent.

 

It should also be given much greater attention that Serena’s fierce fighting spirit while on the court is complemented by her generosity to her opponent after the match ended, whether she wins or loses. She invariably finds the right gracious and tender words to celebrate her opponent, even as here when she was deeply upset by the experience of this particular defeat. Serena especially encourages young players who have achieved so much against the odds.

 

We need to remember that Serena, and her wonderful sister, Venus, rose to these heights from a background in the downtrodden Compton neighborhood of Los Angeles where crime and drugs clamp down on human development and make ambition seem to many of its residents to be a futile waste of energy. Surely, her determined, defiant, politically incorrect father, Richard Williams, deserves extraordinary recognition for bringing his daughters to such athletic and societal prominence, and the overall strength of the Williams’ family seems to have also had an amazing character-building effect. To round out this remarkable story, both Serena and Venus have always expressed love, gratitude, and loyalty for what their parents and siblings contributed to their success.  

We should not deny Serena the benefit of the doubt, which means appreciating that ‘the real Serena’ is her demeanor after the competitive drama has ended, and her emotional intensity is so quickly displaced by humility, grace, and empathy. It is this gift of competitive heroics that have so often turned defeat into victory over the years that have helped make her so beloved by the most ardent tennis fans over the years.

 

I was struck some years ago when Serena during the trophy ceremony after winning the French Open responded in French to the delight of the crowd. What has long impressed me about both sisters is that they live life fully, and in ways that express interests and concerns that reach beyond tennis is a variety of directions, which is unusual for star athletes who are consumed by the demands of their sport, at least during their prime years.

 

In this time of Trump and Trumpism, we should seize the opportunity to celebrate the luminous presence of Serena Williams in our midst: a champion, a warrior for women and against racism, a woman of great charm and warmth, and a beacon of decency.

Decoding the Pipes/Trump/Kushner  ‘Deal of the Century”

11 Sep

Decoding the Pipes/Trump/Kushner  ‘Deal of the Century”

 

You didn’t have to be a ‘never Trump’ loyalist to have qualms about proposing to bring peace to Palestinians and Jews by creating conditions that would produce ‘The Deal of the Century.’ And let’s be fair, if the game of nations is now played according to the rules of Madison Avenue, the phrase was a winner despite being a loser if evaluated from a problem-solving perspective. Even in the present degraded political atmosphere, to bet on an advertising slogan as a substitute for healing ideas may be a good formula for ensuring a large audience for a reality TV episode, but it is a cruel evasion when it comes to addressing the daily ordeal of the Palestinian people consigned to the victimization associated with living under the Israeli apartheid state.

 

What may be worse than Trump’s bombastic boasts is that here there seems to be a malevolent logic that underpins this mad proposal that springs from the ultra-Zionist imagination of Daniel Pipes. It was Pipes months ago, using the Middle East Forum as his ideational vehicle, issued a call for what he named ‘a victory caucus.’ Pipes, an intelligent and trained scholar, reasoned that the Oslo diplomatic track had failed badly as a means for ending the conflict via negotiations. He coupled this conclusion with the historical assertion that prolonged conflicts between ethnic antagonists rarely end by compromise or accommodation. They end with the victory on one side, and the acceptance of defeat by the other side.

 

So the trick, as Pipes came to believe, is to convince the Palestinians to accept the writing on the wall and acknowledge to themselves and the world that they have lost the battle to prevent the establishment of a Jewish state in Palestine or to bring into existence a sovereign state of their own. Pipes argues that an objective look at the diplomatic and military relation of forces in Palestine and the Middle East confirms this assessment of the political outcome even without factoring in the unwavering geopolitical support of the United States that provides unconditional support to Israel’s priorities with respect to the Palestinians.

 

With this understanding, the policy puzzle to solve for Pipes then becomes two-fold: how to convince the U.S. Government to shift from its failed promotional effort to negotiate a solution to one of helping Netanyahu’s Israel successfully impose one, and beyond this, how to exert enough additional pressure on the Palestinian situation on the ground and internationally so that their leaders will face reality and surrender their political claims once and for all, and be content with what would then be offered to them—a pledge of economic improvement in their circumstances.

 

On reflection, it does not seem so surprising that such extreme supporters of Israel as the trio of Kushner, Friedman, and Greenblatt are receptive to such an approach, and might have moved in a similar direction even without the Pipes contribution that provides a coherent rationalization. Consider the steps taken by the U.S. government over the course of the past eight months and a pattern emerges that seems to be only compressible as seeking the implementation of the Victory Caucus proposal:

Moving the American Embassy from Tel Aviv to Jerusalem, attacking the UN –including withdrawing from the Human Rights Council because of its anti-Israeli bias, freezing and then cutting off essential financial aid to the UNRWA operations in Gaza and the West Bank, closing the PLO office in Washington, turning a blind eye to Israel’s crimes against humanity committed in response to the Great March of Return at the Gaza fence, threatening the International Criminal Court, and giving tacit blessing to the accelerated expansion of unlawful Israeli settlements (already surpassing 600,000 settlers). There is no other way to read this series of provocative maneuvers other than as a series of signals to the Palestinian people, and most of all to their leaders, to grasp the futility of their suffering, which will intensify more and more if they do not act sensibly, and submit to whatever Israel proposes so as to complete the Zionist Project of dominating the whole of historic Palestine, the biblical rendering of ‘the promised land’ of Jewish entitlement.

 

To call this kind of coercive diplomacy on an already oppressed people ‘a deal’ is a linguistic travesty. It is more a bullying ploy than a deal, which implies the semblance of a meeting of minds. It is what I have called in this and other contexts a ‘geopolitical crime’ that deserves punishment and international condemnation, not careful consideration given to a serious effort to bring peace to the two peoples. In the future such an initiative is likely to be known as ‘the attempted ultimate crime of the century.’

 

Putting aside sentiments of distaste for the immorality and unlawfulness of this Pipes/Trump/Kushner approach, it is important to ask the awkward question, ‘will it work?’ Given the struggles and suffering endured by the Palestinian people over the course of more than a century, it seems that the Pipes Victory Caucus, like the Trump ‘deal,’ will face scornful repudiation, likely accompanied by dramatic renewals of Palestinian resistance as complement by more militant expressions of global solidarity activities. If we take account of the heroic persistence of the Great March at the Gaza border, despite the repeated atrocities committed by IDF defenders of Israel, and of the increasing worldwide support of the BDS Campaign, it seems reasonable to conclude that the deal of the century has been rejected even before it has been revealed with all its shabby window dressing, including ideas of redrawn boundaries with neighboring countries, permanently fragmenting the Palestinian people beyond the darkest imaginings. If, a big if, the Trump trio of ‘Israel, First’ advisors is at all smart this is a deal whose detailed nature will never be revealed for public scrutiny, and whose anticipated rejection will be hidden behind a PR avalanche of denunciations of Palestinian rejectionism as responsible of killing Trump’s plan for peace.

 

Underneath this attempt to make the Palestinians drink such a toxic brew is a flawed reading of the flow of history in our time. The sun has set on colonialism, and no matter how much geopolitical muscle is applied, this reality cannot be overcome. This kind of geopolitical crime will doubtless intensify Palestinian suffering while it also strengthens Palestinian resolve. In these kind of decolonizing struggles it is shifts in the soft powerbalances that most often produces change, and not the tilting of the geopolitical scales or dominance on the battlefield. People, not states and their armed forces, are the movers and shakers of our era, with governments left on the sidelines to weep over the outcome. The European colonial powers learned this the hard way in a series of bloody wars, which they lost despite their military superiority. The United States, despite its experiences in Vietnam, Iraq, and Afghanistan has yet to grasp the limits of military power in the post-colonial world, and so it keeps inventing weapons, tactics, and doctrine without learning this indispensable lesson in the shifting nature of power.

 

True, Oslo diplomacy was a failure that worked to the political benefit of Israel, and was rightly abandoned. But the Trump response to this failure amount to the criminalization of diplomacy that violates the most basic precepts of international law, as spelled out in the UN Charter. It amounts to waging an aggressive war against a vulnerable and helpless people. If the UN and the leading governments watch this dismal spectacle in stony silence it can only be fervently hoped that the peoples of the world will recognize the need for radical reform to avoid a catastrophic future, not just for the Palestinians, but for all of humanity.

 

 

 

 

  

On Qatar and Gulf Geopolitics

3 Sep

Prefatory Note: The post below in the slightly modified text of an interview by the Tunisian journalist Awatef Ben Ali on behalf of the Qatar newspaper, Al Sharq, August 26, 2018.)

 

 

 

Q 1: From the perspective of international law, is the blockade on the State of Qatar and the 13 demands of the countries of the blockade legal and respecting international sovereignty?

 

A: The 13 demands of the Gulf Coalition plus Egypt, as well as the blockade of Qatar, are unlawful, violating Qatari sovereignty by using diplomatic and economic coercion to interfere with activities that are within the discretion of a sovereign state. It is a regional geopolitical tactic that tries to leverage superior power in ways that induce weaker and smaller states to sacrifice their rights under international law. The allegations of support for terrorism are without any factual foundation and are not supported by any credible evidence, and can be leveled at Qatar’s accusers with more justification than the allegation being made against Qatar. Not only are the 13 demands violations of international law, they are also disruptive of proper and customary diplomatic protocol, an assessment reinforced by Qatar membership in good standing of the GCC and its repeated calls for a negotiated end to the crisis.

 

 

Q 2: The State of Qatar resorted to the International Court of Justice in The Hague to prove the attacks on the rights of its citizens? How do you view these advocates as a legal perspective?

 

A: Recourse to the ICJ is appropriate in situations in which an international legal dispute exists, and cannot be resolved by normal diplomacy. Since the outset of the crisis in 2017 Qatar has repeatedly expressed its willingness to accept third party mediation of the dispute, and to do its part to reach a mutually acceptable political compromise. In contrast, the Coalition merely reiterated its demands and showed no willingness to end the crisis by peaceful negotiation. Qatar has every right to make use of its legal remedies under international law, and if it has a treaty right to resolve disputes with other Gulf states by recourse to the ICJ then this is a constructive step that represents a constructive approach to bring the crisis to a peaceful end in accordance with international law and in the interests of justice. Individuals harmed by this unlawful series of coercive steps should receive relief commensurate to the harm experienced, as well as being relieved of any burdens imposed by the Coalition’s policies.

 

 

Q 3: Qataris were deprived of Hajj. How does the law and the international community view this Saudi abuse?

 

A: As far as I know there is no international legal obligation that compels Saudi Arabia to allow Qataris to enter their country to complete the Hajj. There may be religious commitments and diplomatic traditions that have long been accepted by Saudi Arabia in upholding in good faith its role as custodian of the most holy of Muslim sacred sites. Such diplomatic traditions, as exhibited by patterns of practice over the course of many years, have created expectations that such entry to Saudi Arabia for such a religious purpose will be facilitated. Whether a regional or international legal duty should be established should be considered and discussed. It would seem reasonable to impose such a legal obligation for entry and security on Saudi Arabia because Muslims are obligated by their religion to do the Hajj at least once in their life, and this religious undertaking should not be obstructed by political interference. The translation of such a religious duty into a legal right is something that deserves careful consideration, perhaps in the context of expanding the right of religious freedom that is a legally protected international human right that may require more direct protection in view of these recent interferences with Muslim entry to carry out the Hajj.

 

 

Q 4: The Gulf crisis has reached a stage of stagnation. How do you see the efforts of the Gulf, American and European mediation?

 

A: As mentioned earlier, Qatar is ready to submit the crisis to mediation or any reasonable third party procedure, while the Gulf Coalition is adamant in its refusal.  As your question suggests there are plenty of willing mediators or third parties from the region and from Europe or the United States. The UN Charter underscores the duty of states to seek a peaceful solution of disputes that threaten international peace and security. Given the turmoil in the Middle East, the Gulf Crisis creates one additional flashpoint that could erupt at any time in dangerous and unpredictable ways. The idea of mediation is a means to give both sides a way of resolving the crisis without either side having to acknowledge defeat or endure some kind of diplomatic humiliation. It seem mandatory, in the spirit of the peaceful settlement of dispute, for the leaders of the Gulf Coalition to accept offers of mediation with a sense of urgency, and not prolong this regionally detrimental crisis that also causes harm to many individuals forced to sever their ties with Qatar, or have their relations with other Gulf countries disrupted in ways that result in unfair, arbitrary, and often heavy burdens.

 

Q 5: The State of Qatar plays a pivotal strategic role as a regional negotiator through its strong relationship with a number of major countries and its support to a number of countries, most recently Turkey. How do you evaluate this role?

 

A: An irony of the crisis is that Qatar has in recent years played a consistently moderating role in relation to several regional conflicts, and has engaged in relations beyond the Arab World that have produced economic, security, and diplomatic benefits for the region. Indeed, Qatar has used its wealth and influence in largely imaginative ways to establish mutually beneficial regional and international relationships. In this regard Qatar can be viewed as a small country that has played a diplomatic role beyond its size and capabilities, and could serve as a model of how to be effective as a sovereign state through reliance on the instrumentalities of ‘soft power.’

 

 

Q 6: How do you see the problematic developments between Saudi Arabia and Canada? And how do you to evaluate Saudi foreign policy. (The siege of Qatar, the war of Yemen, the Canadian crisis)?

 

A: Saudi Arabia behavior toward Canada expresses the same effort to bully foreign governments by threats and intimidating moves whenever its leadership feels that its policies have been criticized or its motives challenged. Canada’s criticism of Saudi behavior is quite appropriate given the international character of human rights standards, especially where, as here, legitimate Canadian interests are at stake.  The Saudi response to Canada is consistent with their belligerent behavior with respect to Qatar, as well as their outrageous tactics of warfare in Yemen, which include repeated bombing of civilian sites and interferences with the delivery of food and medicine in a country where there exists a strong internationally verified likelihood of mass starvation and where the population is suffering from a series of dire health challenges. The Saudi Arabian attack upon and intervention in Qatar is a moral and legal scandal that as with Syria displays the inability of either the United Nations or geopolitical actors to protect the peace and security of small countries that become targets of aggressive warfare.

 

 

Q 7: How do you see the role of Abu Dhabi and its quest to dominate the Gulf region?

 

A: I am not an expert on the behavior of the UAE in the region, but from recent appearances, their behavior resembles and reinforces the hegemonic ambitions of Saudi Arabia, and threatens to cause wider regional warfare by its support of policies of confrontation with Iran. It is important for peace, security, and sustainability that this kind of hegemonic diplomacy by UAE should be abandoned. Among other concerns, the region is very vulnerable to the hazards of global warming, and these aggressive moves cause political preoccupations that divert energies and resources from challenges that are present and need to be addressed before it is too late.

 

Q 8: How would ‘the Deal of the century’ affect Saudi Arabia and the UAE. How do you interpret this deal and its impact on the Palestinian cause and the Arab world?

 

A: Of course, in one respect it is premature to comment on ‘the deal’ as its contents have not been formally disclosed, and are the subject of rather divergent lines of interpretation.

 

It is a serious political mistake to attribute great importance to Trump’s uninformed boast to make ‘the deal of the century.’ All indications is that this is a deal that will never achieve the status of a serious conflict-ending proposal that is balanced and takes the rights of both peoples into account. From all indications, what Trump/Kushner have in mind seems to presuppose the surrender of Palestinian politicalrights, including the right of self-determination and the right of return, receiving in return ‘a bowl of porridge.’ Such a deal is and should be a non-starter in the post-colonial age, and will be rejected by every important Palestinian voice, including those living in foreign countries or in refugee camps in the region. It will be a costly diplomatic mistake for Saudi Arabia and the UAE to be seen as encouraging such a flawed approach to the Palestinian national struggle, an approach that would almost certainly include considering Jerusalem to be under the exclusive sovereign control of Israel. Trump has already indicated that moving the American Embassy to Jerusalem has removed the issue from any future peace negotiations. Israel has revealed and confirmed itself as an apartheid state by recently passing the Nation-State Law of the Jewish People denying equal rights to non-Jews as a matter of law. If Saudi Arabia and the UAE side with the Trump diplomacy that seeks to achieve a final betrayal of Palestinian rights, they will find themselves on the wrong side of history as well as antagonizing Arabs, Muslims, and partisans of human rights and justice throughout the world. Instead of the deal of the century that is a formula for the declaration of an Israeli victory and Palestinian defeat, the governments of the region should be demanding a peaceful solution based on dismantling apartheid structures, ending the blockade of Gaza, and acknowledging the rights of the Palestinian people.  From all appearances this will not be remembered as ‘the deal of the century’ but cast aside as ‘the most fraudulent bargain ever put forward in the century.’

 

 

Q: What is your international low opinion about the latest news published by New York Times describing the electronic spying operations of Israel and Emirites, including the targeting of the Emir of Doha and a lot of political leaders?

 

 

These spyware developments are serious but hardly new in what they seek to achieve. Throughout the history of international relations governments pay money and use a changing variety of methods to gain access to the secrets and private communications of their adversaries. What makes this issue surface as in these recent allegations of the use of spyware against private communications of the leaders of Qatar, including the Emir and his family, is the growing sophistication of the technology and its ability to penetrate what had previously considered to be secure channels of communication, evidently including surveillance of cell phone conversations. Another striking feature of the present atmosphere is the role of private sector profit motives either reinforcing or challenging broader foreign policy positions. For instance, the UAE has no formal relations with Israel, but it happily purchases spyware from an Israeli company, NSO, exhibiting a relationship that could not exist without the knowledge and likely the approval of the Government of Israel.

 

From the perspective of international law, espionage has always had a double reality. On the one side, it is an unlawful form of interference with the sovereignty of a foreign country, which the target government criminalizes with punishments inflicted at its discretion, while the government responsible for the espionage glorifies its agents, or falsely denies their dirty deeds. On the other side, its practice is so common, and taken for granted, that it is difficult to regard allegations of espionage or surveillance as other than propaganda, with the government complaining, pretending to be outraged while itself relying on similar mechanisms to carry out espionage for its own security or to advance its policies.

 

The only sensible approach at this time is to ask whether the spyware being developed so radically alters the privacy of leaders and the security of states as supporting an argument to negotiate a new treaty of prohibition, similar to the prohibition of certain weapons of warfare such as biological and chemical weapons. This is the issue that should be discussed and debated to discover whether there is a

practical way to regulate and implement any prohibition of unacceptably intrusive espionage that can be agreed upon. A novel feature of digital spyware is that can penetrate deeply into the most secret recesses of foreign societies without requiring any physicalintrusion, and therefor it is spyware without spies, and resembles drones on the rather frightening frontiers of warfare where the human presence is eliminated, and the battlefield populated by machines capable of causing devastation of the most severe character.

 

As the Edward Snowden disclosures demonstrated a few years ago, governments are also using this technology to establish elaborate surveillance networks directed at their own citizenry, undermining trust and freedom in democratic societies. Thus the issues raised by the new types of spyware extend beyond espionage as practiced in international relation, and touch upon the nature of constitutional democracy in the 21stcentury.

 

These are important issues for our time that need to be faced as openly as possible, but without a misleading exhibition of legalism and moralism, which thinly veils propaganda designed to blame others for behavior that is common to all international participants.

 

 

 

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