The Mistakes of the Global Imperial State and the Mistakes of Others  

29 Mar

 

It was pointed out to me that the oddities of reconciliation without truth that I encountered in the Philippines with respect to the persisting prominence of the Marcos family despite the widespread discrediting of his period of ruler ship (1965-1986) is not as strange as I made it appear. After all, Jeb Bush has recently announced his intention to seek the presidency of the United States in 2016, and George W. Bush despite his deplorable presidency, is regarded as a political asset, and is actively campaigning and raising funds on behalf of his younger brother. In the Philippines, unlike the United States, there was a political rupture brought about by the People Power Movement that drove the Marcos clan from power and led directly to Corey Aquino becoming president, widow of Benigno Aquino Jr., the slain Marcos opponent. Even now this populist triumph is celebrated as a day of national pride for the country, and Benigno ‘Noynoy’ Aquino III sits in the Malacañang Palace as the elected leader of the country. Yet the political realities in the Philippines, as with America, are more notable for their continuities with their discredited past than by changes that repudiate and overcome it.

 

Barack Obama was acting in an admittedly different political setting in the United States when he put aside well grounded allegations of criminality directed at the leadership during the Bush presidency, prudently contending that the country should look forward not backward when it comes to criminal accountability of its former political leaders. Of course, this is the opposite of what was done with surviving German and Japanese leaders after World War II at the widely heralded Nuremberg and Tokyo trials, nor can such prudence ever become the norm in the United States in relation to the crimes of ordinary people, even the laudable whistleblowing crimes of the sort attributed to Chelsea Manning, Julian Assange, and Edward Snowden. Such selective impunity seems to be the price that imperial democracies pay for avoiding civil strife at home, and preferable to the unity associated with authoritarian forms of governance.

 

For this reason alone, Obama’s morally regressive approach to accountability is politically understandable and prudent. America is polarized, and the most alienated and angry segment of the citizenry embraces the gun culture and likely remains ardently supportive of the sort of militarism and patriotic fervor that had been so strongly in evidence during the Bush presidency.

 

Thoughts along these lines led me a broader set of reflections. The mistakes that the Philippines makes, however horrifying from the perspectives of human rights, are at least largely confined to the territorial limits of the country and victimize its own citizenry. By way of comparison, the foreign policy mistakes that the United States mainly vicitimize others, although they often do at the same time impose heavy costs on the most marginal and vulnerable of Americans. As a society, many regret the impacts of the Vietnam War or the Iraq War on the serenity and self-esteem of American society, but as Americans we rarely, if ever, pause to lament the immense losses inflicted on societal experience of those living within such distant battlefields of geopolitical ambition. These victim societies are passive recipients of this destructive experience, rarely possessing the capability or even the political will to strike back. Such is the one-sidedness of imperial relationships.

 

An estimated 1.6 to 3.8 million Vietnamese died during the Vietnam War as compared to 58, 000 Americans, and similar casualty ratios are present in the Afghanistan and Iraq wars, without even considering the disruption and devastation experienced. In Iraq since 2003 it is estimated that between 600,000 and 1 million Iraqis were killed, and over 2 million were internally displaced and another 500,000 Iraqis became refugees as a result of the war, while the United States lost in the vicinity of 4,500 combat personnel. Battlefield statistics should not blind us to the absoluteness of each death from the perspective of loved ones, but they do reveal a central dimension of the distribution of the relative human costs of war as between an intervening government and the target society. This calculus of combat death does begin to tell the story of the devastation of a foreign society, or the residual dangers that can materialize in death and maiming injuries long after the guns are silent from lethal unexploded ordinance that litters the countryside for generations, soil contamination by Agent Orange, and warheads containing depleted uranium, as well as a legacy of trauma and many daily reminders of war memories in the shape of devastated landscapes and destroyed landmarks of cultural heritage.

 

From almost any ethical standpoint it would seem that some conception of international responsibility should restrain the use of force in situations other than those authorized by international law. But that’s not the way the world works. The mistakes and wrongdoing that takes place in a distant foreign war is rarely acknowledged, and never punished or restitution offered. Perversely, it is only the territorial leaders that are held to account (e.g. Saddam Hussein, Slobodan Milosevic, and Muammar Qaddafi). The United States Government, specifically the Pentagon, makes it a point to tell the world that it does not collect data on civilian casualties associated with its international military operations. In part, there is an attitude of denial, minimizing the ordeals inflicted on foreign countries, and in part there is the salve of an underlying official insistence that the U.S. makes every effort to avoid civilian casualties. In the context of drone warfare, Washington insists that there are very few civilian victims, as measured by the number of deaths, but never admits that a far larger number of civilians huddle in continuous acute fear that they may be targeted or unintentionally struck dead by an errant missile.

 

Given the statist and imperial structures of world order, it is not surprising that there is so little attention to such issues. The mistakes of an imperial global state have material reverberations far beyond their borders while the mistakes of normal state resound inwardly as in an echo chamber. The wrongs of those who act for the imperial global state are shielded from scrutiny by realistic notions of impunity, while the wrongs of those who act for a normal state are increasingly subject to international procedures of accountability. When this happened after World War II it was called ‘victors’ justice; when it happens now, especially with the one-eyed jurisprudence of ‘liberal legality’ it is explained by reference to prudence and realism, being practical, doing what it is possible, accepting limits, giving a fair trial to those who are accused, deterring some patterns of evil deeds.

 

This will not change unless either of two things come to pass: a global capability to interpret and implement international criminal law comes into being or the political consciousness of imperial global states is dramatically altered by the internalization of an ethos of responsibility toward foreign societies and their inhabitants. Any description of such advances in law and justice should make us aware of how utopian such expectations remain.

 

At present, there is only one global imperial state, the United States of America. Some suggest that China’s economic prowess creates a rival center of power and influence that should be acknowledged as a second global imperial state. This seems misleading. China may be more resilient, and is certainly less militarist in its conception of security and pursuit of its interests, but it is not global, nor does it fight wars distant from its homeland. Furthermore, Chinese language, currency, and culture do not enjoy the global reach of English, the U.S. dollar, and franchise capitalism. Undoubtedly, China is currently is arguably the most significant state in the world, but its reality is in keeping with core Westphalian ideas of territorial sovereignty, while the United States operates globally in all regions to solidify its status as the only global imperial state, indeed the first such state in the history of the world.

CHANGE VERSUS CONTINUITY IN THE PHILIPPINES

26 Mar

 

CHANGE VERSUS CONTINUITY IN THE PHILIPPINES

 

After more than 30 years I recently spent a week in the Philippines, giving a few arranged talks at universities, meeting with NGOs, and old friends who shared their understanding of this fascinating fast growing country of approximately 105 million people living on an archipelago that consists of more than 7,107 islands. Additionally, of course, Manila is a mega-city that exhibits traffic at its worst, colorful jeepneys by the hundreds that are a distinctive national mode of urban transportation, a kind of customized bus service in smaller vehicles colorfully adorned, and now almost as many malls as churches epitomizing the economic and social intrusion of neoliberalism in the guise of globalization. Probably because of the large number of affluent expats living in the Makati neighborhood of Manila, the malls in the vicinity of my hotel offered visitors a wide range of world cuisines in numerous restaurants, cafes, bistros, and of course, a large Starbucks, staying open late into the night. As well, there were housed in these malls the same upper end array of global stores (e.g. Gucci, Coach, Cartier, Burberry, Zara, and so on).

 

My visit coincided with two preoccupations in the country: the celebration of the 29th anniversary of the overthrow of the Marcos dictatorship by the People Power Revolution in 1986 and the current obsessive national debate about how to understand and react to the bungled counterterrorist operation in the Mindanao community of Mamapasano located in Manguindanao province that took place in late January of this year. Each of these occurrences offered a politically attuned visitor a finely honed optic by which to grasp the central tensions currently gripping the country.

 

There is little doubt that the people power movement of the mid-1980s remains a source of national pride for many Filipinos, although its overall results are not nearly as emancipatory as were the original hopes and aspirations. Procedural democracy seems to have become firmly established, and the fact that the president of the country is the son of Benigno and Cory Aquino. Benigno Aquino who had been assassinated as he stepped on the tarmac in 1983 is an important symbolic expression of a reformed political order. Marcos denied the crime, and there have been two inconclusive trials of military officers alleged to be responsible for planning and carrying out the assassination, but the event has not been authoritatively explained to date. Yet despite the momentous changes brought about by this populist rising, the political economy of the country remains as enmeshed as earlier in a web of entanglements with predatory globalization, making income and wealth disparities ever larger while massive degrading poverty persists. The oligarchic structures of land tenure have been tweaked by mild reformism without loosening their chokehold on the nation’s vital arteries.

 

The Philippines have long been beset by insurgent challenges, which also seem likely to continue indefinitely. After decades of struggle the New Peoples Army founded in 1969 and operating on Maoist principles of ‘peoples war’ remains in control of a number of remote communities in several of the important islands, clashes with government forces are reported in the media from time to time, and negotiations with the government with the goal of ending the conflict have been undertaken from time to time. This persevering movement appears to remain under the ideological leadership of Jose Maria Sison, who has been living as an exile in Utrecht for decades.

 

Given far more recent attention for both internal and international reasons are the several violent movements seeking autonomy and other goals in the largely Muslim island of Mindanao. There had been lengthy negotiations with the Moro Islamic Liberation Front that agreed finally on a resolution of this conflict through the autonomy arrangement embedded in the Bangsamoro Basic Law that seemed on the verge of enactment until the Mamapasano incident of January 25th put off adoption at least until June, and possibly forever. Opponents are now raising Islamophobic fears that Mindanao would become a platform for political extremism if the agreement reached with such difficulty goes into effect.

 

What for me was particularly strange was this deeply ingrained national experience of successfully challenging intolerable aspects of the established order without being able to follow through in some way that achieves the goals being sought. In one way it is a rather impressive sign of reconciliation to realize that the son of Fernand Marcos Jr. is an influential senator, and is even contemplating a run for the presidency in 2016 despite never repudiating the policies and practices of his father, which are movingly on display in a small museum dedicated to the crimes committed by the Marcos regime during the period of martial law (1972-1981). Additionally, Imee, the oldest Marcos daughter is the governor of the Ilocos Norte province, their home province, and even Imelda Marcos has been forgiven her excesses, shoes and otherwise, and serves as a popular member of the House of Representatives since being elected in 2010 by a plurality of over 80%. This is a remarkable type of rehabilitation of a family dictatorship believed responsible for siphoning off public monies in the billions and suppressing its opponents by reliance on torture, brutality, and assassination. The Marcos clan has never recanted or expressed remorse, but explains that whatever wrongs occurred during that time as either ‘mistakes’ of subordinates or the unproven allegations of opposition forces.

 

When I asked how was it possible that the Marcos past has been so cleanly erased from the contemporary blackboard of Filipino awareness, I received various answers: “They have lots of money” “They never lost popularity in their home province where lots of development took place while Marcos governed ” “The past no longer matters; it is the present that counts” “the oligarchy still rules the country and includes all leading families regardless of their political affiliations.”

 

There are attractive aspects of this experience of ‘reconciliation without truth,’ that is, without some formal process of reckoning and accountability, at least the palliative of a truth and reconciliation commission. Such a spirit of resigned moderation is in some respects the opposite of the sort of polarization that afflicts so many countries at present. It is not only that the Marcos’s have been allowed to participate prominently in the political system without being compromised by their past, but also those on the left who in the Marcos period were ‘underground’ and enemies of the state are now to be found in the Congress or even in the cabinet of the president. Perhaps, the Philippines is quietly experimenting in the practice of ‘pluralist democracy,’ while ignoring the more radical features of ‘substantive and restorative democracy.’

 

A similar pattern of ‘conscious forgetfulness’ is evident in relation to the colonial past for both its Spanish and American versions. There is no bitterness despite the cruelties and harshness of the Spanish colonial legacy. Catholicism is still firmly rooted in the country as it was when it was a willing partner of the Spanish rulers in the oppressive past, and continues to flourish in a manner that has not occurred in any other post-colonial Asian country. When Pope Francis visited the country in January it was the largest celebratory event in the country’s history. This status of Catholicism is also remarkable considering the Church’s persistent opposition to birth control for poor families that are continuing to have large families that they unable to support; over 30% of Filipino children are reported to be stunted due to the effect of malnutrition and hunger.

 

The bloody counterinsurgency war fought by the United States in the aftermath of the Spanish-American War of 1898 crushed the Philippines expectations of national independence that had been promised by Americans as part of their own anti-colonial identity. Most absurdly, the American president at the time William McKinley, actually justified administering the Philippines as part of its responsibility to Christianize this most Christian of countries. The decision to break the American promise of independence made to anti-Spanish nationalist leaders in the Philippines was articulated in the brazen spirit of Manifest Destiny, putting a moral ad religious face on America’s first flirtation with undisguised colonialism. McKinley’s words are memorably revealing: “..there was nothing left for us to do but to take them all, and to educate the Filipinos, and uplift and civilize and Christianize them, and by God’s grace do the very best we could by them..”

 

My initial contact with the Philippines was as a supporter of the ‘Anti-Bases Coalition,’ which in the 1980s was seeking the removal of the two huge American military bases at Subic Bay and Clark Air Force Base. This has been a struggle with strong nationalist overtones, and engaging leading political figures in the country. The bases were eventually closed, but consistent with the tendency to exhibit the truth of the French adage ‘plus ça change, plus c’est la même chose ‘ [the more things change, the more they remain the same] the strategic relationship with the United States was sustained, even deepened, and certainly continued. There were American special forces units operating rather freely in the country as part of the global war on terror, and there were intimations that the role of the United States in the Mamapasano incident was responsible for the bloodshed that generated a political crisis in the country.

 

Of course, there are explanations for this seeming contradiction between getting rid of American military bases and maintaining military cooperation. The government in Manila was benefitted by the assistance of the United States in dealing effectively with its domestic insurgent challenges from the left. Beyond this, the Philippines turned out to be one of the anti-Islamic battlefields in the post-9/11 ‘war on terror,’ and the United States exerted pressures on the government in Manila to give its consent to counter-terrorist operations within its borders. In the background, but not very far removed from political consciousness, were the flaring island disputes with China and the overall security concerns associated with the regional rise of China. In this geopolitical setting, the United States was seen as a necessary friend to offset the more immediate and direct existential threats posed by China. In important respects, these patterns can be understood as the post-Cold War securitization of Asian relations in the shadow of the transformative impacts of the 9/11 attacks.

 

The Mamapasano incident is emblematic of these realities. Under apparent pressure from the United States to capture or kill a much wanted terrorist known as Marwan, the Filipino elite special forces units were persuaded to carry out the operation. In the process 42 of these highly trained troops were killed, along with Marwan, and there were many repercussions. The United States role was at first disguised, but investigations revealed involvement, including a drone watching and maybe guiding the operation, along with the allegation that the Filipino soldiers were ‘sacrificed’ to spare American lives in a situation where heavy armed resistance should have been anticipated. Some blamed the president, and there were demonstrations during my days in the country demanding his resignation, despite his popularity remaining quite high. It is not clear what will be the outcome, whether there will be a downgrading of cooperation with the United States and some accountability imposed on those who are alleged to have bungled the operation. Yet if the past is any guide, the crisis will pass, and continuity of U.S./Filipino relations will prevail in the security domain.

 

The Mamapasano incident is a clear instance of the new global security paradigm: the centrality of non-state actors, the role of covert operations by foreign special forces, the transnational dimensions of political conflict, the erosion of territorial sovereignty, the primacy of information and surveillance, and the hierarchical relationship between the United States and most governments in the global south. To make this last point evident, it is inconceivable that Filipino special forces would participate in an operation to capture persons residing in the United States suspected of affiliation with insurgent movements in the Philippines.

 

There is a complex redesign of world order underway, with one set of developments reshaping the political economy of globalization by way of the BRICs [but see acute skeptical analysis in William I Robinson, “The transnational state and the BRICS: a global capitalist perspective,” Third World Quarterly, 36(NO.1): 1-21 (2015)] and the Chinese initiative with respect to investment banking, [Asian Infrastructure Initiative Bank]; another set of developments concerned with securitization, ranging from the global surveillance apparatus disclosed by Edward Snowden to the incredible American global presence featuring over 700 foreign military bases and special forces units active in over 150 countries; and still another, is preoccupied with the rise of religion and civilizational identity as a political force, and what this means for stability and governance.

 

We still lack a language to assess this emergent world order, and possess no regulatory or normative framework within which to distinguish what is legitimate, prudent, and permissible from what is illegitimate, imprudent, and impermissible. Neither international law nor the UN have been able to adapt to the contemporary global agenda, and show few signs of an ability to do so. While this fluidity and normative uncertainty persists global warming worsens, the risks of nuclear war increase, and leading states shape their policies without accountability. It is not a time for complacency. Such a state of affairs is dangerous, and likely unsustainable. And yet what can be done remains elusive.

Stalking Netanyahu’s Victory: Palestine and Iran

21 Mar

 

 

(Prefatory Note: This is a much modified version of an article published online by Al Jazeera America on March 19, 2015; its ambition is to grasp the dual significance of the Likud victory for strengthening the role of civil society activism in the Palestinian struggle and with respect to the ongoing diplomacy associated with Iran nuclear program.)

 

 For Palestine:

My immediate reaction to the outcome of the Israeli elections is that for Palestinian solidarity purposes, it was desirable for Netanyahu to receive this electoral mandate. It exhibits as clearly as possible that the long discredited Oslo ‘peace process’ is truly discredited. But don’t believe that the call for bilateral talks will not be revived within the ranks of the so-called liberal Zionists. Already Israeli commentators, including Likud operatives, are saying that Israel would welcome a resumption of direct negotiations. In the words of the Likud Deputy Foreign Minister, Tzachi Hanegbi, “[w]e would be delighted to renew the negotiations..[i]t is to the benefit of both parties.” Really! Why wouldn’t they? How have the Palestinians benefitted during the past 22 years from these negotiations during which the Israel has been relentless in accomplishing the creeping annexation of the West Bank and the ethnic cleansing of East Jerusalem past the point of return? As Jeff Halper points out the only question about the future is whether Israel’s state will be secular and Democratic or Zionist with an apartheid apparatus of discrimination and exploitation.

 

And as for the embarrassment of Netanyahu’s pledge never to establish a Palestinian state in the closing days of his campaign, it can be put aside as we all know that Bibi is ‘a pragmatist’ who knows the difference between campaigning and governing. As a prominent Israeli think tank personality, Grin Grinstein, put it, Netanyahu now that he is securely elected can shift attention to his legacy, and will want to avoid Israel’s international isolation: “I would not rule out his going back to the two-state solution.” Neither would I, at least rhetorically and opportunistically. It should have long been obvious that there has never been an Israeli willingness to endorse a viable Palestinian state based on the equality of the two peoples, the sina qua non of a sustainable peace based on implementing the two-state consensus. The only way to understand this long afterlife of the two-state solution is that provided governments and decent people to hold onto a belief that a just solution to the conflict remained within reached, and that its attainment depended on ‘painful concessions’ made by both sides. Such a contrived myopia enabled liberal Zionists to pretend that Israel could remain democratic and Zionist, while not permanently dispossessing and subjugating the Palestinian people.

 

The cynically obvious conclusion is that when Netanyahu craves votes from the ultra-right in Israel he reassures Israelis that there will never be a Palestinian state so long as he remains the leader. When the election season is finished, then it is time to reassure Washington and Europe that he remains as committed as ever to the two-state mantra, with the unspoken clause, “so long as it remains a mantra.” What should disturb us most is the willingness of so many in the United States and elsewhere to embrace such tactics that consign the Palestinian people to the cruelty of their various circumstances (under occupation, in refugee camps, in exile, subject to blockade). Whether this last phase of disclosure associated with Netanyahu successful campaign strategy will offend the Obama presidency sufficiently to alter American foreign policy in the Middle East is uncertain at this point.

 

If the Zionist Union coalition of Isaac Herzog and Tzipi Livni had been elected on March 17th, liberal Zionists would undoubtedly have had a field day, proclaiming a new dawn, restoring good will and inter-governmental harmony in relations between Washington and Tel Aviv. Even now a leading liberal Zionist, the NY Times columnist, Roger Cohen, throws his support behind the idea of a ‘national unity government’ that would supposedly rein in the extremist tendencies of Netanyahu. It is also reported that Reuven Rivlin, Israel’s president and Likud member who is an avowed Zionist maximalist (that is, one Jewish state in all of historic Palestine) and unilateralist (‘peace’ by Israeli fiat without the bother of negotiations and diplomacy) is seeking to form such a unity government on the basis of the election results. Despite these views, Rivlin, unlike Netanyahu, is an advocate of human rights and equality for Palestinians living within whatever boundaries Israel achieves, a position almost as incapable of realization as the old delusionary embrace of the Oslo framework as something other than a device to allow Israel to consolidate its hold over the West Bank and East Jerusalem.

 

Principled liberal Zionists, such as Rabbi Michael Lerner and even more the admirable Haaretz columnist Gideon Levy, view Netanyahu’s reelection as an unconditional disaster both for what it means for Israel’s governing policies and even more so for what it tells us about the prevailing political culture of racism and militarism within Israel. In contrast, an ideological liberal Zionist of the Thomas Friedman variety laments the emergent picture is such a way as to distribute an equal portion of blame to the Palestinians, both Hamas and the Palestinian Authority. Ponder these slanted words: “It would be wrong to put all of this [blame] on Netanyahu. The insane, worthless war that Hamas started last summer that brought rockets to the edge of Israel’s main international airport and the Palestinians’ spurning of two-state offers of Israeli prime minister (Ehud Barak and Edud Olmert) built Netanyahu’s base as much as he did.” [NY Times, March 18, 2015] This pattern of distributing responsibility for the continuing oppression of the Palestinian people and the denial of their most fundamental rights to both sides equally is the most authentic signature of ideological liberal Zionists, purporting to be objective and balanced in assessing responsibilities while effectively supporting Israeli expansionism. Any reasonable assessment of the massive Protective Edge attack launched by Israel last July would acknowledge the Netanyahu provocations that started with the manipulation of the June kidnapping incident resulting in the murder of three young West Bank settlers and the anti-Hamas rampage that followed, as part of the timeline, not to mention Israel’s furious reaction to the unity agreement reached between the Palestinian Authority and Hamas some weeks earlier. As well, for Friedman to present the proposals of Barak and Olmert as offering the Palestinians equality and a viable state coupled with a recognition of the rights of Palestinian refugees, is to serve as a reckless purveyor of Israeli propaganda.

 

It is on the basis of repudiating such reasoning that the most credible advocates of Palestinian justice, otherwise as far apart as Ali Abunimah and Gilad Atzmon, agree that it is better that Netanyahu and the Likud won the election rather than their supposedly centrist opponents. These more upbeat commentaries on Netanyahu’s triumph believe that this heightened transparency relating to Israel’s true intentions will lead to a long overdue burial of Oslo-generated delusions about a diplomatic settlement of the conflict and that this will, in turn, awaken more of Western public opinion to the true nature of Israeli ambitions, and strengthen the BDS approach to peace with justice. This development should help people throughout the world understand that a positive outcome for the Palestinian national movement is utterly dependent on struggle and that diplomacy has nothing to offer at this time, nor does the revival of armed struggle.

 

From these perspectives, a positive future is dependent upon Palestinians waging and winning a Legitimacy War directed at realizing Palestinian rights under international law. This is the central argument of my recently published Palestine: The Legitimacy of Hope (Just World Books, 2015); see also to the same effect, Ali Abunimah, The Battle for Justice in Palestine (Haymarket Books, 2014). This reliance on civil society activism implies growing support in the court of public opinion being reinforced by a worldwide militant nonviolent solidarity movement that challenges Israel by way of such tactics as the BDS Campaign and Freedom Flotillas. It should be clear that such a movement from below is not seeking the delegitimation of Israel as such, but of its policies and practices that are precluding a just peace, which as of now presuppose the formation of a single democratic secular state with equal economic, political, social, and cultural rights for all residents regardless of ethnicity and religious identity.

 

On Iran Diplomacy:

 Unfortunately, in my view, this is not the whole story of the Israeli elections. The Netanyahu victory cannot be assessed exclusively through a Palestinian optic. The dangerous implications for broader regional issues of a Netanyahu controlled foreign security policy cannot be overlooked, nor the grave danger of coordination between the militarist approach to the Islamic world of the Likud Party in Israel and the Republican Party in the United States, or less dramatically, of a restored cooperative regional strategic partnership between the two countries. These concerns most obviously pertain to the prospects for a stable termination of the dangerous encounter with Iran. The Netanyahu/Republican approach is likely to have at least two harmful effects: shifting the internal Iranian balance toward a harder line and creating pressures in Iran and elsewhere in the Middle East to move closer to the acquisition of nuclear weaponry, which will likely cause a regional arms race, including the proliferation or near proliferation of nuclear weapons and/or be the proximate cause of one more devastating war within the region, which regardless of outcome is almost certain to strengthen ISIS and other extremist non-state actors throughout the Middle East.

 

Of course, the Netanyahu Republicans see this core conflict differently, more in the spirit of poker (than chess), supposing that raising the stakes in the game still higher will prompt Iran to fold. This does not seem plausible. If Iran’s efforts to accommodate the West (including Israel) by accepting an unprecedented level of regulation and foregoing a nuclear option despite Israel’s arsenal and threatening posture, would make additional constraints on Tehran depend on the willingness of a more hard line Iranian leadership to give way further than its moderate predecessors.

 

From this vantage point, the Lerner view of the Netanyahu victory as a major disaster for Israel and the world seems the most sensible interpretation, even if never fully consummated by the transformation of bluffs into policies, and not nearly as threatening as it will become if a Republican wins the presidential election in 2016. Even if Hilary Clinton rises to the occasion and is elected the next American president I would not invest much hopes that she will challenge the Netanyahu approach toward Iran except possibly in matters of style and at the margins. Even supposing, as now seems unlikely, that Rivlin convinces Likud to go along with his preference for a unity government it is almost certain to be dominated, especially in relation to security policy, by Netanyahu. Beyond this, even as Netanyahu shows his readiness to rehabilitate his never credible endorsement of a two-state solution for Palestine, confident that it will lead no further than in has over the decades, he is almost certainly not going to budge on Iran.

 

Why? It is entirely possible that Netanyahu has swallowed his own propaganda, and honestly believes that Iran poses a real threat to Israel’s security, and possibly survival, rather than seeing the calculus of fear the other way around. In actuality, it is Iran that is threatened, Israel that poses the existential threat. Beyond this, the Iran card has proved exceedingly helpful to Netanyahu, allowing him both to play on Israeli fears to build support at home and to divert international attention from Israel’s refusal to act reasonably and lawfully with respect to Palestine. In light of this combination of adverse circumstances, I am not sure what I would advise the Iranian government to do at this point other than to bide its time. If Netanyahu had been soundly defeated, then it would have made sense to do everything possible to reach an agreement while Obama is still in office. But now to invite a repudiation of whatever is agreed upon is to choose what would likely turn out to be the worst alternative available.

 

For these reasons, as helpful as Netanyahu’s electoral victory seems from the viewpoint of building a stronger Palestinian national movement, this political result in Israel is a definite setback from the perspective of resolving the conflict with Iran. Is there any way to separate these two concerns, taking advantage of Netanyahu’s victory in the Palestinian context while seeking at the same time to mobilize a movement favoring denuclearization of the Middle East as a vital ingredient of a peaceful future for the Middle East. This seems to be the challenge facing civil society activism that seeks justice for the Palestinians, peace for both peoples, and an end to fear-mongering and saber-rattling in relation to Iran.

 

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

17 Mar

 

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

 

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

 

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

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

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

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

 

 

 

 

SANCTIONS

 

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

 

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

 

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

 

NUCLEAR WEAPONS OPTION

 

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

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

 

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

 

MILITARY THREATS

 

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

 

Conclusion

 

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

 

 

 

 

 

 

Netanyahu: The Day After (Revised)

4 Mar

Netanyahu: The Day After

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

Commentary on Netanyahu’s Visit to the United States

2 Mar

Pondering the Netanyahu Visit

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

‘Lawfare’ and Liberation

23 Feb

Positive and Negative Forms of ‘Lawfare’

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

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

a more systematic reality.

 

 

 

 

 

 

 

 

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