AN AMERICAN ATTACK ON IRAN WOULD BE AN UNMITIGATED DISASTER FOR THE US, IRAN AND THE WORLD: Iran War Statement

25 Jun

[Prefatory Note: The following statement on US warmongering in relation to Iran was prepared by Mark LeVine, Professor of History, University of California, Irvine and myself. Some of the early signatories are among the leading scholars in the field of Middle East Studies. Their names are listed below.

It seeks to make two major arguments: first, that the unlawful threats and coercive moves made by the United States point toward a political disaster that would include the commission of the most serious of international crimes, that of aggression via threats and uses of force that do not constitute self-defense under international law; secondly, that it is essential to shift the relationship with Iran from one based on coercive to an approach resting on restorative diplomacy involving a deliberate reversal of American Foreign Policy with the overriding objective of normalization of relations between our two countries.

If you wish to add your name to the signatories of the statement, use the link below. As there  is no space for affiliation, I suggest putting your first and last name in the first blank space, and your affiliation in the space reserved for last name.]

https://secure.avaaz.org/en/community_petitions/President_Trump_An_American_Attack_on_Iran_Would_be_an_Unmitigated_Disaster_for_the_US_Iran_and_the_World/details/

 

 

 

AN AMERICAN ATTACK ON IRAN WOULD BE

AN UNMITIGATED DISASTER FOR THE US, IRAN AND THE WORLD

 

Statement by leading Middle East/Islamic studies scholars, June 22, 2019

We, the undersigned scholars of the Middle East and North Africa and broader Muslim world, call on President Trump immediately to pull back from the brink of a war with the Islamic Republic of Iran. It is clear to us that the human, diplomatic, legal, political, and economic costs to both countries, the Persian Gulf and larger Middle East, the global economy and the global system of international humanitarian law of a US attack would be even more devastating than was the US invasion of Iraq sixteen years ago. We call upon the political leadership of the country, with a sense of urgency, not only to refrain from any further threats and uses of force against Iran, but also to put forward a new American diplomacy that takes steps to achieve a sustainable peace between our two countries and within the larger region.

 

We bring to the public’s attention the following points:

 

– The US-led Iraqi invasion, whose financial toll has exceeded $2 trillion in the US and at least that much in its adverse economic impact on the affected countries, led to the deaths of over 600,000 Iraqis, largely destroyed the Iraqi state and much of the country’s infrastructure, produced devastating immediate and long-term impact on the health of Iraqis and the environment, directly contributed to the rise of the Islamic State and its conquest and occupation and destruction of a huge swath of Iraq and neighboring countries (especially Syria), and produced a series of governments in the region which, even when there is a veneer of democracy, are incredibly corrupt and unable effectively to govern fractured societies, while continuing routinely to commit large scale human rights violations against their citizens.

 

– Like the Iraqi invasion before it, an attack on Iran under the present circumstances would be a clear violation of international law–a crime against peace, which is an international crime of the highest order, and delineated as such in the Nuremberg Judgement. Indeed, absent a valid claim of self-defense any attack on Iran, never mind a full-scale invasion and occupation by the United States, would violate the core articles of the UN Charter (Articles 2(4), 33, 39 & 51) as well as the legal imperative to seek a peaceful settlement of all international disputes. Such “breaches of the peace” are the most serious violations of international law a country can commit, and the US doing so again less than a generation after the Iraqi invasion would situate it outside the community of nations, making it widely regarded as a dangerous and destabilizing rogue actor whose behavior is the very opposite of the self-understanding and justifications of the Trump Administration for its actions. In this regard the recent array of threats, sanctions, and provocations are themselves flagrant violations of international law even without any direct recourse to force; only self defense against a prior armed attack across as international border legally justifies a claim of self-defense. Absent this, all threats, as well as uses of force, are considered severe violations of international law.

 

Particularly in the context of the United States’ unilateral withdrawal from the 2015 Joint Comprehensive Plan of Action, which verifiably halted the potential for Iran to pursue a nuclear weapons program, and the imposition of crippling economic sanctions against the government and people of Iran without a UN Security Council mandate, the present policy of increasing pressure on Iran and irresponsibly raising risks violent confrontation that could quickly escalate to an all-out war, coupled with the inflammatory discourse of regime change championed by National Security Advisor John Bolton and Secretary of State Mike Pompeo, constitute clear interference with Iranian sovereignty rights as well as with the inalienable right of self-determination enjoyed by the Iranian people. As such, these policies are violations of international law and of the UN Charter, inherently destabilizing, and themselves pose unacceptable threat to peace.

 

Recent events have alarmed us, demonstrating how ill-defined policy goals, bellicose rhetoric, policies and brinkmanship, and operating outside the well-defined framework of international law can easily bring countries to the brink of mutual disaster. The ongoing global impact of the Iraqi invasion (from the rise of ISIS to the aborted Arab Spring, greater support for authoritarian rulers, and the civil wars in Libya, Syria and Yemen and the massive wave of refugees these dynamics have caused) reminds us that the Middle East, and the world at large, cannot afford another major war in the region. Such a conflict would undoubtedly lead to a horrific toll of dead and injured, major environmental destruction, large scale forced migration, world-wide recession, as well as producing other equally dangerous and unintended consequences.

 

Finally, we note here that the Trump Administration’s bellicose policies towards Iran are inseparable from its uncritical and unrestrained support of authoritarian and repressive policies across the region, from the ever-deepening Israeli occupation to the Saudi and UAE war in Yemen, the destruction of democracy in Egypt and the frustration of democratic aspirations of citizens across the Middle East and North Africa, all of which contribute to the immiseration and increasingly forced migration of millions of people across the region and the unjustified repression of their legitimate aspirations for freedom, justice, democracy and sustainable development.

 

We therefore call upon President Trump, first, to pull back from any thought of an unsanctioned attack; second, to rejoin and implement the 2015 nuclear agreement; third, to terminate the enhanced sanctions he continues to impose on Iran; and fourth, to enter into immediate and good faith negotiations towards a normalization of relations with the Islamic Republic. Along with these immediate steps, we call for an honest appraisal of the costs of historic and current American policies in the Middle East and North Africa, and their reorientation towards support for freedom and democracy.

 

In the absence of these steps, we call on the US Congress to act swiftly and decisively to prevent the President from leading the United States into war, and call on our fellow academics, policymakers, diplomats, military officials, elected representatives, and concerned citizens to assert whatever pressure necessary to prevent the Administration from engaging in any kind of attack on Iran, or any other country, outside the bounds of international law and without the clear and explicit authorization of the UN Security Council.

 

Signed (partial list, as of June 21),

 

Beth Baron, Distinguished Professor, Director, Middle East and Middle Eastern American Center, Graduate Center, City University of New York, past President of the Middle East Studies Association

 

Joel Beinin, Donald J. McLachlan Professor of History and Professor of Middle East History, Emeritus Stanford University, past President of the Middle East Studies Association

 

Laurie A. Brand, Robert Grandford Wright Professor of International Relations and Middle East Studies University of Southern California, past President of the Middle East Studies Association

 

Charles E. Butterworth, Emeritus Professor, Department of Government & Politics, University of Maryland

 

Juan R. Cole, Richard P. Mitchell Collegiate Professor of History at the University of Michigan, past President of Middle East Studies Association

 

John Esposito, University Professor, Professor of Religion & International Affairs and Islamic Studies, Georgetown University, past President of the Middle East Studies Association and American Academy of Religion

 

Richard Falk, Professor of International Law Emeritus, Princeton University, former, UN Special Rapporteur on Human Rights in the Occupied Territories

 

Nader Hashemi, Professor of Middle East and Islamic Politics, Josef Korbel School of International Studies, University of Denver, Director of the Center for Middle East Studies

 

Suad Joseph, Professor of Anthropology and Women and Gender Studies at the University of California, Davis, past President of the Middle East Studies Association

 

Mark LeVine, Professor of History, UC Irvine, Chair, Program in Global Middle East Studies

 

Zachary Lockman, Professor of Middle Eastern and Islamic Studies, and History, past President of the Middle East Studies Association

 

Valentine M. Moghadam, Professor of Sociology and International Affairs, Northeastern University, past President of the Middle East Studies Association

 

Ahmad Sadri, Gorter Chair of Islamic World Studies, Professor of Sociology, Lake Forest College

 

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ACTING BEYOND THE STATE: TOWARD A COSMOPOLITAN AWAKENING?

20 Jun

[Prefatory Note: The following review of Ayça Çubukçu’s For the Love of Humanityis scheduled to appear in a forthcoming issue of the London Review of International Law.]

 

ACTING BEYOND THE STATE: TOWARD A COSMOPOLITAN AWAKENING?

 

Ayça Çubukçu,For the Love of Humanity: The World Tribunal on Iraq, University of Pennsylvania Press, 2018.

 

 

Ayça Çubukçu’s For the Love of Humanity theorizes the global anti-war movement occasioned by the Iraq War of 2003 around her experience of involvement in an elaborate global initiative culminating in a tribunal established by ‘world citizens’ that held its final session in Istanbul. Beyond question, the Iraq War Tribunal (WTI) was an extraordinary undertaking from start to its finish, a worldwide non-hierarchical network of civil society activists that prior to the Istanbul finale in 2005 had organized separate tribunal sessions devoted to the Iraq War in major cities around the world including London, Seoul, Copenhagen, New York, Stockholm, several Japanese cities, Rome, Frankfurt, Genoa, Barcelona, Lisbon. Although there are many examples of prior citizen tribunalson a variety of controversial issues, none before achieved this global scale or were guided by such a grand visionary ambition.

 

The acknowledged inspirational origin of the WTI was the Bertrand Russell Tribunal organized in 1967 to document American criminality associated with its engagement in the Vietnam War. Relying on the prestige of the great British philosopher and his influential moral voice this innovative tribunal based its credibility on the participation of celebrity Western left intellectuals, with Jean-Paul Sartre serving as President.[1]What was most notable about the Russell Tribunal was the novel appropriation of a statist legal framework by private citizens for the purpose of conducting a comprehensive legal inquiry into the Vietnam War. The Tribunal secretariat gathered testimonies of witnesses and commentaries of experts, but based its authority to pass judgment largely on the reputation of its 24 prominent members, mostly men, including such iconic cultural figures as James Baldwin, Simone de Beauvoir, and Peter Weiss. Among its members was Lelio Basso, a prominent Italian jurist and legislative figure who later founded the Permanent Peoples Tribunal (PPT) in Rome on the basis of this experience, which has held many comparable sessions over the intervening years on a variety of issues that governments and the UN found too hot to handle.

 

As Ayça Çubukçushows so brilliantly, relying on an ethnographic approach, the WTI was shaped with this background in mind, but with much more organizational self-consciousness and sense of enduring purpose that any earlier civil society initiative of this kind. WTI also featured a populist, feminist, and activist organizing strategy that was very different in style and substance than all earlier tribunal initiatives that were the work of progressive elites as facilitated by a closely knit group of organizers. Çubukçurecounts, as integral to the process, the conceptual struggles among the organizers about how to address the challenge of claiming an authority to pass legal judgement not only on the behavior of powerful sovereign states but also on the criminal culpability of their leaders. The ‘law’ framing this populist venture involved a convergence of motives, chief among which is the claim that ultimate sovereignty is located in people as a belonging to nascent polity of humanity rather than the institutions of government, whether national or international. Additionally, a justification for WTI was the widely endorsed political assumption that geopolitical leverage had paralyzed international law and the UN, allowing the overriding of Iraq’s sovereign rights causing negative impacts on global justice, world peace, and the wellbeing of Iraqi people. Relying on unattributed direct quotations of the participants at a lengthy WTI organizing session, Çubukçumakes us appreciate the clarifying fact that the organizers shared an overall hostility to the Iraq War despite their realization that the US/UK intervention had toppled a cruel dictator, guilty of many crimes against humanity. In this way the mission adopted by the WTI was to accord priority to worldwide anti-war and anti-imperial goals even granting that there were some human rights benefits resulting from the invasion and occupation of Iraq.

 

This policy assessment was the backdrop for a broader, fundamental, essentially jurisprudential question about the nature of the WTI as an initiative with many of the legal trappings and pretensions of a judicial proceeding yet conducted without the presence of the defendants or any prospect of enforcement. Çubukçuis attentive to this crucial issue of how to endow the WTI with legitimacy given its lack of formal authority. The Russell Tribunal was dismissed in mainstream circles as an anti-war propaganda stunt, a kangaroo court that proceeded on the basis of pre-determined conclusions that were alleged to make a mockery of the tribunal format. At the same time, the law framing of the inquiry was believed necessary to give WTI a credibility with mainstream opponents of war and the media that it could not have achieved by way of a mere political condemnation. In effect, the WTI was claiming that its proceedings provided the public with correct interpretations of international criminal law. These interpretations filled the normative vacuum created by the political failure of the current world order system to overcome the impunity of geopoliticalwrongdoers.

 

Considering the issue more deeply, it is well to recall that the generally affirmed war crimes tribunals after World War II (at Nuremberg and Tokyo) also went forward on the basis of pre-determined results, although the defendants were present in the courtroom, accorded partial rights of defense, and the judgment reached was enforced and the defendants punished. These tribunals did receive criticism as ‘victor’s justice,’ but mainly because of impunity, that is, the crimes of the winners (e.g. strategic bombing, atomic attacks on Hiroshima, Nagasaki) were not subject to prosecution and could not even be invoked as defenses by those accused. Çubukçudiscusses in some detail the contrast between the parallel American organized trial of Iraqi leaders held under the auspices of the Iraqi High Tribunal in Baghdad and the subsequent execution of Saddam Hussein. Such a formalized judicial proceeding in Iraq was obviously intended to serve as a kind of vindicating ritual for the attack, yet compromised by impunity for the crimes of the US/UK attackers and occupiers, as well as by the bloody end game of the botched execution of Saddam Hussein. It was as much a show trial as anything done during the notorious Stalin period in the Soviet Union that also indulged in judicial escapades, and in terms of the quality of the legal assessment compared unfavorablyto the overall undertaking of the WTI.

 

What most interests Çubukçuis the challenge of using the legal scaffolding by WTI while not endowing international law with sanctity, given its historic role of upholding war and justifying imperial undertakings, including in the past European colonialism. She instructively compares the role of the Independent International Commission on Kosovo that gave a qualified endorsement to the Kosovo War with the WTI to make the point that the NATO War in 1999 set an unfortunate legal precedent for the Iraq War. In effect, international law enjoys, at best, an equivocal relationship to justice when it comes to restraining war making diplomacy of dominant states, and so should not be unconditionally affirmed.

 

In this sense, Cubukcu’s most provocative contribution is undoubtedly the quite original depiction of the driving force that animated the formation and operation of the WTI. In her striking formulation it was ‘the love of humanity.’ The thirst for legalism, a concern with justice per se, and building a global anti-war movement were all contributing factors, but as complements to the core motivation of ‘species love.’  This conclusion overrides, but does not invalidate the claims of the WTI to clarify the relevance of international law against geopolitical violators. The love of humanity encompasses the anti-war animus of a global movement that made use of a tribunal format so as continue activist opposition to the bellicose behavior of the United States that was hiding its imperial master plan behind a hypocritical commitment to protect human rights and promote democracy. In her view, the WTI, above and beyond all else was an expression of an emergent cosmopolitan ethos of species love that transcended national boundaries and could only be activated by the agency of the peoples of the world. It was this activation by the WTI that is for Çubukçuits greatest achievement, as well as constitutes the ultimate basis of its legitimacy.

 

The book ends somewhat enigmatically with a pronouncement that law and empire cannot be reliably disentangled, and for this reason law must be ‘interrogated and overturned’ in a similar progressive move that provided the stimulus to the WTI and the repudiation of the Iraq War. Instead of law, Çubukçuopts for a humanistic version of cosmopolitan populism, expressed by reference to species identity, and given a special twist by invoking the unexpected strong referent of ‘love.’ The book ends whimsically with these words: “Perhaps then, less violent and necessary may be acting for the love of humanity.” (157) We can only hope thatÇubukçu’s next ambitious book will be devoted to explicating this tantalizing sentence!

 

Part of what makes this book so impressive is that its radical vision is sustained and deepened by sophisticated reference to the ideas of many of the leading European political philosophers of the last hundred years and by a social science methodology that relies on an ethnographic record compiled by a participant-observer who doubles as author. This fine, memorable book possesses a theoretical and practical significance that extends well beyond the confines of the WTI experience.[2]Çubukçunot only observes, reports, philosophically comments, but she engages by taking sides. As such, she is part of a recent academic trend toward ‘partisan objectivity,’ disclosing openly the author’s point of view rather than pretending neutrality. For anyone concerned about political activism, transnational organizing, a new progressive agenda, international law, the ethics of resistance, and the post-colonial, post-Cold War world order this book is required reading.

 

 

 

 

]

[1]For  an account of the Russell Tribunal including a text of the proceedings see John Duffett, ed., Against the Crime of Silence (Flanders, NJ: O’Hare Books, 1968)

[2]For a comprehensive presentation of the WTI proceedings see Muge Gursoy Sokmen,World Tribunal of Iraq: Making the Case Against War(Olive Branch Press, 2008). 

Choosing a Candidate: Elizabeth Warren for President!

14 Jun

 

[Prefatory Note: I have had several second thoughts since posting ‘Are the Democrats in a Race to the Bottom’? I continue to worry about the disunity of anti-Trump America, and its danger of giving Americans, and indeed the world, four more years of cruel and dangerous governance almost certain to erode the quality of democracy for decades, but there are several major caveats that qualify this anti-Trump priority.

 

Above all, the realization that both parties have affirmed an unhealthy war-mongering approach to Middle East politics, including unconditional support for special relationship with Israel and Saudi Arabia that overlook, if not being complicit with the criminal wrongdoing of both governments. As well, the Democratic Party establishment still obsessively seeks to push the anti-Russian line in extremist directions that risk a second more volatile Cold War. Those who speak on behalf of the DNC (Democratic National Committee) also are clearly unready to repudiate the predatory capitalism of neoliberal globalization that flourished since the collapse of the Soviet Union. This predatory behavior since the end of the Cold War underscores the practical insight that capitalism grows extremely abusive and detached from human wellbeing when not challenged by a socialist alternative as endorsed by a sizable proportion of working people. Long before the political tragedy of Trumpism, the overwhelming majority of the American people were being exploited and politically pacified by the bipartisan embrace of Wall Street Economics, which is humanly as detrimental to the society as is the persisting bipartisan embrace of militarism. Unfortunately, the eight years of the Obama presidency, admirable in some ways, did little to challenge these two deadly pillars of the bipartisan consensus that emerged after 1945.

 

I seize the moment to praise Bernie Sanders’ speech at George Washington University calling for the establishment of a new Economic Bill of Rights with six levels of promised specific action under his chosen rubric of ‘democratic socialism.’ As Sanders rightly shows, there is a practice that goes back a century demonizing all steps forward on behalf of the American people as ‘socialism,’ which was used to block FDR’s New Deal reforms during the Great Depression. Sanders invokes the New Deal and the legacy of FDR to insist that this is the most authentic and progressive form of American political leadership, and its absence from recent governance trends is what has alienated, enraged, confused, and disempowered many American citizens contributing to the. vulnerability that brought us Trump and Trumpism in the United States, and even elsewhere.

 

Nevertheless, on reflection, despite my liking and endorsement of Sanders’ central message, I am changing my rank ordering of preferential candidates. mainly by now singling out Elizabeth Warren as my first choice, at least for now. She is showing herself to be an improved campaigner, consistent in values and outlook, setting forth a rich offering of progressive programs in key areas of voter concerns. She also is someone that has demonstrated the ability to get things done while serving in the Senate. Warren comes across as a voice of intelligent, trustworthy, and compassionate concern that avoids any superfluous ideologizing of her political agenda.

 

In light of this hard choice, I relegate Sanders to my second tier of preferred candidates, and add to that group Pete Buttigeig, an oversight on my part in the earlier post. He deserves to be there, more or less for the same reasons as Obama deserved to become president in 2008. He is intelligent, informed, fluent, youthfully sympathetic, and has already taken brave steps toward the kind of leadership America needs by presenting himself as a gay man happily married to another gay man. My revised second tier list now is Sanders, Buttigeig, O’Rourke, Harris, Gabbard, Bennet, and Inslee, with still a few days left for Sherrod Brown to enter the fray. This strikes me as a good list of viable candidates, although I expect the further stages of the campaign to select a nominee will highlight individual strengths and weaknesses not presently apparent. This will undoubtedly alter these rankings in both directions.

 

My other change of heart since the earlier post, is to worry less that Biden will somehow maintain his frontrunner status. Having observed Bidenin action, I have become more confident that he will self-destruct, or at least remove himself from the running. I share the view that the Biden of today, having suffered personal losses that enlarge moral sensibilities and having been pushed to reconsider some of his past policies, and even behavior, is a wiser, more humane person than the opportunistic politico of past years, and yet that does not make him qualified to be president of this complex country at its most perilous time since the American Civil War, maybe even more perilous because of the global setting.

 

In light of these considerations, I am reposting my earlier blog with a new title more responsive to the central issue. I have not done this before, but I think the issues are of sufficient importance to make an exception. I also underscore my rejection of the view that because there are serious concerns about the underpinnings of the Democratic Party, the outcome of the 2020 election is inconsequential, making it a waste of time even to vote. I believe electing a Democrat, anyone on the list, including unlisted third tier candidates would be a dramatic step in the right direction—on economic and social policy, climate change, appointment of Federal judges, women’s rights, public debate and relations with foreign governments.

 

 

We should not at this critical juncture give up on democracy even in the face of its seriously deficient functioning. As Europeans found out in the 1930s, fascism is far worse! Such a view does not invalidate the imperative need for radical restorative reforms if we want to make democracy a progressive reality with respect to the 21stCentury array of challenges, especially the blending of the economic and ecological spheres in sustainable and equitable local, national, regional, and global linkages. Let’s become aware that sustainability with justice is unsustainable.In my view the best way to move down this benevolent path at the moment is to nominate, and then elect, Elizabeth Warren as the next American president.]

 

 

Choosing a  Presidential Candidate: Elizabeth Warren for President!

 

I have had several recent conversations with friends about the 2020 election who preface their assessment with this liberal sentiment—‘I am in favor of whoever has the best chance of beating Trump.’ I respond meekly with a question, guessing in advance their likely response. My words: ‘Where does that lead you?’ and my guess is depressingly accurate. His or her words: ‘I think that Joe Biden is the only one who can beat Trump.’  Or in more pessimistic responses: ‘Biden has the best chance of winning.’

 

I feel depressed with this assessment, or at odds with it, for two reasons: first, I doubt that Biden is a stronger candidate than was Hillary Clinton in 2016, although he might do a bit better with disaffected Midwestern workers and older voters, but likely worse with others. My other reason for being a Biden doubter is more substantive. How can I in good faith and with any enthusiasm support a candidate with such an awful record when it comes to women’s rights, racism, Wall Street, and American militarism (including even support for the Iraq War in 2003). Although Biden has been tacking left and apologizing for some of this past in the last few weeks, one has to wonder what sort of national leader he would be other than not-Trump, to which I would ask, ‘have our expectations fallen this low?’

 

Already, happily, Biden’s frontrunner status is beginning to erode rapid. Name recognition is good to get a veteran politician out of the gate, but as the race itself commences, substance and political magnetism matter more and more. The Trump taunt ‘Sleepy Joe’ may be unkind or even unfair, but it catches something unnerving about the persona Biden projects. I do not envy Biden the challenge of debating Trump should he gain the nomination, and I would be surprised if he were successful. Trump has greater clarity in his delivery, and more punch and style in his swing. If I were a cagey Republican strategist I would do all in my power to exhibit fear of a Biden candidacy precisely because he would likely be a pushover.

 

There is something else about a Biden candidacy that will surely alienate the folks backing Sanders, and likely some of the others among the more progressive candidates. Selecting Biden would represent the DNC and the Democratic Party Establishment as again lining up behind a candidate that is an organization man rather than a political leader with progressive passions and consistent views. Biden, whether reasonably or not, will be perceived by the body politic as Clinton redux. Isn’t it time to let the American people decide, and not the donors with the deepest pockets or the bipartisan congeries of special interests? A Biden presidency would waste no time restoring the Cold War bipartisan consensus, which will probably mean confrontational geopolitics with Russia and China, as well as threatened and actual interventions in the Middle East.

 

In this sense, should we not be patient, allowing the candidates to achieve a rank ordering on the basis of their performance on the hustings? It is difficult to get a sufficient read on the whole field, but a few stand out in my mind, sufficiently for me to believe they could deal effectively with Trump and yet not be disillusioning to people like myself. I think mostly favorably of Sanders, Warren, O’Rourke, Bennet, Inslee, Gabbard, and maybe even Harris.

 

I do not dissent from the view that Democrats are much more likely to prevail in the elections If they find a unifying candidate. At present, despite the large field none of those seeking the nomination, including Biden, or Sanders or Warren for that matter, seems a credible unifier. For this reason, it may still yet be beneficial for Sherrod Brown to come in from the cold, reconsidering his decision not to run. I feel that Brown by his record and his outlook to have the potential to be that much needed unifier with the added bonus of coming from Ohio, a state that could quite possibly decide who will be the next president of this now troubled country.

 

I personally prefer Warren or Sanders because of their integrity and programs, but I recognize for a variety of reasons neither will be an anti-Trump unifier due to ideological reasons. Many rich and elite Democrats reject candidates who are strident in their attacks on Wall Street, inequality, free trade, and militarism, and seek the bromide of a Biden type candidate. Just because such an approach failed in 2016 is no reason for such folks, so it seems, not to try again. I felt this sentiment as informing the pro-Biden advocacy of some of my friends that I mentioned above, feelings disguised a bit by claiming that Biden had the best chance of dislodging Trump.

 

For now, I support Sanders and Warren, not as a joint ticket, but as alternatives for the top spot. Despite my deep disillusionment with the behavior of American democracy in this period, as evidenced by the

inexplicable loyalty of the Trump base or the implacable failure to protect our citizenry by the kind of gun control that exists in other comparable societies or the refusal of the Democratic leadership in Congress to begin impeachment proceedings or a hundred other causes of my discontent, I still feel that such principled candidates not only offer a brighter future for the society but that they would be probable winners. This forthcoming electoral struggle is almost certain to dominate the American political imagination in the year ahead, and determine whether as a nation we recover hope or flounder in despair.

 

And should these preferred candidates fall by the wayside, then I would place a long odds desperate bet on a resurrected Sherrod Brown, but this will not even be an option if the man offstage waits much longer before stepping forth.

 

If we do end up with Biden as Trump’s opponent, what then? I think we

should defer such an unpleasant conversation until the reality is upon us, which I am optimistic enough to believe will be never.  

 

Are the Democrats in a Race to the Bottom?

11 Jun

Are the Democrats in a Race to the Bottom?

 

I have had several recent conversations with friends about the 2020 election who preface their assessment with this liberal sentiment—‘I am in favor of whoever has the best chance of beating Trump.’ I respond meekly with a question, guessing in advance their likely response. My words: ‘Where does that lead you?’ and my guess is depressingly accurate. His or her words: ‘I think that Joe Biden is the only one who can beat Trump.’  Or in more pessimistic versions of the same response: ‘Biden has the best chance of winning.’

 

I feel depressed with this assessment, or at odds with it, for two reasons: first, I doubt that Biden is a stronger candidate than was Hillary Clinton in 2016, although he might do a bit better with disaffected Midwestern workers and older voters, but likely worse with others. My other reason for being a Biden doubter is more substantive. How can I in good faith and with any enthusiasm support a candidate with such an awful record when it comes to women’s rights, racism, Wall Street, and American militarism (including even support for the Iraq War in 2003). Although Biden has been tacking left and apologizing for some of this past in the last few weeks, one has to wonder what sort of national leader he would be other than not-Trump, to which I would ask, ‘have our expectations fallen this low?’

 

Already, happily, Biden’s frontrunner status is beginning to erode rapid. Name recognition is good to get a veteran politician out of the gate, but as the race itself commences, substance and political magnetism matter more and more. The Trump taunt ‘Sleepy Joe’ may be unkind or even unfair, but it catches something unnerving about the persona Biden projects. I do not envy Biden the challenge of debating Trump should he gain the nomination, and I would be surprised if he were successful. Trump has greater clarity in his delivery, and more punch and style in his swing. If I were a cagey Republican strategist I would do all in my power to exhibit fear of a Biden candidacy precisely because he would likely be a pushover.

 

There is something else about a Biden candidacy that will surely alienate the folks backing Sanders, and likely some of the others among the more progressive candidates. Selecting Biden would represent the DNC and the Democratic Party Establishment as again lining up behind a candidate that is an organization man rather than a political leader with progressive passions and consistent views. Biden, whether reasonably or not, will be perceived by the body politic as Clinton redux. Isn’t it time to let the American people decide, and not the donors with the deepest pockets or the bipartisan congeries of special interests? A Biden presidency would waste no time restoring the Cold War bipartisan consensus, which will probably mean confrontational geopolitics with Russia and China, as well as threatened and actual interventions in the  Middle East.

 

In this sense, should we not be patient, allowing the candidates to achieve a rank ordering on the basis of their performance on the hustings? It is difficult to get a sufficient read on the whole field, but a few stand out in my mind, sufficiently for me to believe they could deal effectively with Trump and yet not be disillusioning to people like myself. I think mostly favorably of Sanders, Warren, O’Rourke, Bennet, Inslee, Gabbard, and maybe even Harris.

 

I do not dissent from the view that Democrats are much more likely to prevail in the elections If they find a unifying candidate. At present, despite the large field none of those seeking the nomination, including Biden, or Sanders or Warren for that matter, seems a credible unifier. For this reason, it may still yet be beneficial for Sherrod Brown to come in from the cold, reconsidering his decision not to run. I feel that Brown by his record and his outlook to have the potential to be that much needed unifier with the added bonus of coming from Ohio, a state that could quite possibly decide who will be the next president of this now troubled country.

 

I personally prefer Warren or Sanders because of their integrity and programs, but I recognize for a variety of reasons neither will be an anti-Trump unifier due to ideological reasons. Many rich and elite Democrats reject candidates who are strident in their attacks on Wall Street, inequality, free trade, and militarism, and seek the bromide of a Biden type candidate. Just because such an approach failed in 2016 is no reason for such folks, so it seems, not to try again. I felt this sentiment as informing the pro-Biden advocacy of some of my friends that I mentioned above, feelings disguised a bit by claiming that Biden had the best chance of dislodging Trump.

 

For now, I support Sanders and Warren, not as a joint ticket, but as alternatives for the top spot. Despite my deep disillusionment with the behavior of American democracy in this period, as evidenced by the

inexplicable loyalty of the Trump base or the implacable failure to protect our citizenry by the kind of gun control that exists in other comparable societies or the refusal of the Democratic leadership in Congress to begin impeachment proceedings or a hundred other causes of my discontent, I still feel that such principled candidates not only offer a brighter future for the society but that they would be probable winners. This forthcoming electoral struggle is almost certain to dominate the American political imagination in the year ahead, and determine whether as a nation we recover hope or flounder in despair.

 

And should these preferred candidates fall by the wayside, then I would place a long odds desperate bet on a resurrected Sherrod Brown, but this will not even be an option if the man offstage waits much longer before stepping forth.

 

If we do end up with Biden as Trump’s opponent, what then? I think we

should defer such an unpleasant conversation until the reality is upon us, which I am optimistic enough to believe will be never.

 

Jurisprudential Notes Toward Empowering and Liberating International Law and the United Nations

2 Jun

Jurisprudential Notes Toward Empowering and Liberating International Law and the United Nations

 

  1. Two recent exceptional books, Justice for Some: Law and the Question of Palestine (2019) by Noura Erakat and For the Love of Humanity: The World Tribunal on Iraq (2018) by Ayça Çubukçboth reject the liberal trope of assuming international law is an ally with respect to their passion for justice. Law as such is a neutral instrument, historically invented to serve the purposes of the strong, and more recently seen as useful for the weak in certain settings. When law is aligned with injustice it gives rise to resistance, which historically is associated with the hallowed tradition of civil disobedience, influential with Tolstoy, Gandhi, and more recently, Martin Luther King, Jr.. In these contexts civil disobedience can involve the nonviolent transgression of any legal norm that calls attention to the specific injustice. For instance, a refusal to pay taxes or trespass on a military base are illustrative. Armed struggle may also achieve law-generating legitimacy as was the case in the decades after World War II for anti-colonial wars or wars of national liberation. So far, there is no traditional of internationalor globalcivil disobedience. In a globalizing world, transnational activism needs such a means to protest injustice. Perhaps, the purported criminalization of the BDS Campaign directed at Israel in some Western countries gives this option to activists

 

  1. David Kennedy earlier developed the argument, if I read him correctly, that a principal value of international law in war/peace contexts is to provide a familiar and accepted discoursethat facilitates communication between representatives of governments, diplomats, and other actors. This assertion is more innovative than it appears at first glance. Most of us believe the main function and test of law’s effectiveness is whether it achieves restraints on behavior on the basis of legal prohibitions. Kennedy is skeptical of the ability of international law to shape the behavior of sovereign states in war/peace contexts, yet affirms the relevance of international law to the conduct of international relations. Instead of stressing the regulation of behavior of sovereign states, Kennedy believes that international law is primarily useful for purposes of intra-governmental and inter-governmental communication, helping policymakers determine how policy should be framed and justified. The challenge for most moderate governments is to exercise their discretion in ways responsive to a range of concerns, including humanitarian, security, and strategic. For overall discussion see Kennedy, Of War and Law (2006). There is a further point. In effect, language being inherently malleable, it is always possible to interpret the law to conform to preferred policy options reflecting societal roles and normative background. For this reason, in matters that challenge major state interests law serves mainly to communicate and clarify, but lacks the political traction to restrain. Law does allow the strong to vindicate their claims of belligerent rights as in war crimes trials of the leader(s) of defeated countries. A recent instance is the trial and execution of Saddam Hussein orchestrated by the victorious law-violating aggressor.

 

  1. By contrast, in Revisiting the Vietnam War (2018) I contend that American policies in Vietnam after 1954 were unlawful in various ways, with a special stress on the U.S. extension of the combat zone in South Vietnam to North Vietnam after 1964. In effect, international law, as well as the UN Charter, sought to be regulative with respect to behavior, as well as the incidental benefit of offering a framework for discourse among diplomats. Further, that regulative intentions giving rise to such legal norms were seeking to restrict recourse to international force to situations of self-defense strictly defined. The overriding goal of the. UN Charter is war prevention. The Nicaragua Casedecided by the World Court in 1986 confirmed the view that international law governing recourse to force was regulated in a manner entirely consistent with the UN Charter core concepts of unconditional prohibition (Article 2(4)), coupled with an exception for validclaims of self-defense made dependent on the existence of “a prior armed attack” across an international boundary. (Article 51). History is relevant. When the grief and tragedy of war remained an active memory restraint followed, not only because the law so decreed but as a reflection of the psychological anti-war mood that then briefly prevailed. 

 

  1. Such a regulative view of international law rests on a premise that there are correct and incorrect (or better and worse) modes of interpretation with respect to theapplicationof legal norms. This premise does not entail a positivist approach that restricts the meaning attributed to legal norms to the language used in formal texts or customary rules. A more appropriate interpretative approach can be adopted, enlarged to take account of context, including ethical, sociological, and historical considerations. When a country has recourse to force, claimint to act in accord with its right of self-defense or contends that its uses of force are proportional and discriminate a regulative approach can disagree by offering contrary factual and interpretative evidence. The absence of authoritative interpreters of international law make theses assessments rest to a greater degree on supposedly neutral scholarly or expert opinion, which is deemed more trustworthy as not forthcoming from a partisan source. Of course, scholars disagree just as judges disagree. For this reason the selection of judges or the appraisal of scholarly merit is crucial and often determinative of ‘the law.’ The significant differences between Brett Kavanaugh and Ruth Bader Ginsberg are not vocational or analytical as much as they are normative and subjective.

 

  1. Myres McDougal in collaboration with Harold Lasswell addressed this issue of ‘normative ambiguity.’ They attempted. to resolve the challenge of authoritativeness by reference to ‘reasonable expectations’ as assessed by reference to the values at stake in a free society. As their work was rooted in the global setting of the Cold War their inclinations were to find that American foreign policy was in most instances compatible with international law as it was assumed guided by a commitment to promote free world values and by reliance on capabilities able to bring effective power to bear on the behavior of political actors. See McDougal & Florentino Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion(1961); see also McDougal & Harold D. Lasswell, “The Identification and Appraisal of Diverse Systems of World Order,” American Journal of International Law53:1 (1959). Such a jurisprudential perspective regards international law as a geopolitical instrument evaluated as good or bad by reference to the normative credentials and material capabilities of political actors. These credentials are given concrete significance by assessing the degree of adherence of a domestic public order system to the values of a free society. The West, from this point of view supposedly adhered to such values, while the Soviet bloc did not. Such a framework was deeply ideological as in contested situations, for instance, Vietnam, where the differences between the Soviet and American forms of government should not have affected the legal assessment of violations of the sovereign rights of Vietnam.

 

  1. Çubukçu explores the relevance of international law in the informal setting of a people’s tribunal established to assess the legality of the Iraq War, including the subsequent occupation of Iraq. The tribunal was charged with determining whether political leaders, military commanders, and corporate officers should be held personally accountable under international criminal law. Admittedly, this is a somewhat misleading way to conceive of the central mission of the Iraq War Tribunal. This appropriation of law by those acting on behalf of civil society are doing so on the basis of already formed judgments that reflect moral convictions. Such a peoples’ tribunal is tasked with documentingviolations of international law and international crimes, and is expected to justify conclusions of criminality, which were presumed, and motivated the effort to create such a tribunal. Such a ‘judicial’ undertaking is not motivated by a search for the proper mode of interpretation. The Tribunal’s ‘jury of conscience’ did not rest its authority on the basis of having legal experts pass judgment, although it was permissible to have such individuals participate, but only to the extent that their politics are right and their reputation as exemplary citizens is high. Putting the point differently, these kinds of civic initiatives are undertaken because of anti-war sentiments being considered applicable to the judgment of belligerent behavior being challenged and the failure of formal institutions, including the United Nations, to protect a sovereign nation, in this case Iraq, from military attack and occupation. It is not an inquiry as generally understood, but a gathering of evidence and interpretative argument to mount a challenge directed at a controversial policy of a government, usually a government that enjoys impunity with respect to its wrongdoing. The conclusions of such a tribunal is ultimately an appeal to international public opinion, but usually falls short of its goals because of limits on funding available to disseminate results and antipathy of mainstream media to these activities. These tribunals are portrayed by the media as usurping the role of formal institutions and are constituted without any acceptable constitutional mandate. The underlying question is whether civil society has any lawmaking authority deserving respect. As such tribunals challenge the new political norms of post-truth society, some view their role as benevolent, others as irrelevant if not malevolent. There is no doubt that civil society exerts an influence on public opinion with respect to issues of war/peace, including accountability for war crimes. Such influence tends to be more evident in democratic societies. Yet modern democratic states rely on extensive claims of secrecy, nationalist ideology, money, and militarism to marginalize those citizens who seek to engage more fully and critically with public policy, especially the war/peace agenda, than by voting periodically. Tribunals established by citizens is a dissident mode of participatory democracy, and more important for this reason than as a contribution to upholding the rule of law.   

 

  1. Academic international law specialists rarely acknowledge any legal, moral, and political relevance to civil society initiatives that claim a residual authority to act when governments and the UN fail to do so. In this sense, the Nuremberg and Tokyo trials after World War II also proceeded on the basis of predetermined results, but because constituted by sovereign states as represented by governments, their undertaking was generally viewed as deserving of respect. The documentation of criminality was widely regarded as an invaluable form of political education. What little criticism of these legal initiatives by academic specialists did occur focused on the fact that the crimes of the victors, including the atomic bombing of Japanese cities, were excluded even from inquiry, much less accountability. In other words, since international law is treated as subject to the statist framework of world order, non-statist initiatives to pronounce on the wrongdoing of states are dismissed as without legal relevance.

 

  1. We are confronting various kinds of partisan scholarship, some overt, some hidden. Çubukçu and Erakat are notable because they make their partisanship explicit, whereas the mainstream jurisprudential traditions, whether positivist, realist, or sociological, claim an objective approach premised on the mystique of ‘the majesty of the law.’ Or as in recent debates about the Trump presidency, rhetorical flourishes such as ‘no one is above the law’ are common yet non-operational. Even before the banner of ‘fake news’ was waved so defiantly, it was obvious that law and legal order depend more on the political and ethical outlook of the interpreter than on legal training and analytical skills or even on the aura of legitimacy surrounding governmental institutions. It is usually more helpful to know the viewpoints of the judges on the U.S. Supreme Court than knowing all about the substantive ins and outs of a legal controversy being addressed.

 

  1. Shall we also admit that the law in the books will not necessarily matter unless it is accompanied by a sufficient political willto seek and achieve implementation? In international life this political will depend heavily on the attitudes of leading geopolitical actors. In domestic society the political will is shaped by what the 20thcentury Austrian sociologist of law, Eugen Erlich, called ‘the living law,’ the values and expectations of the people as the crucial indicator of effective law.For routine matters such as tourism, diplomatic representation, maritime safety governments comply because it is convenient for them to do so, or reciprocity creates mutual benefits. When war/peace is at stake, then law tends to be sidelined by geopolitics, invoked when it serves interests, evaded or refuted when it contradicts interests. The hope after the devastating war that ended in 1945 and generated a well-founded fear that a future war would involve nuclear devastation was that it would incline the most powerful state to abandon war as an instrument of policy as a matter of law reinforced by political will. Instead geopolitical actors, above all the United States and the Soviet Union opted more for prudence than prevention, continuing to advance their interests by investing heavily in military capabilities and by pragmatic recourses to international force. This post-nuclear militarism was tempered by strong efforts to limit the scale and stakes of conflict to avoid a major war that could lead to the use of nuclear weaponry.

 

  1. The substantive context matters. The state, if corruption and incompetence can be minimized, can be relied upon to act lawfully if the subject-matter is What is treated as routine shifts with time, and reflects to some extent the ebb and flow of political outlook, but generally coincides with behavior that reflects reciprocal interests as is the case with diplomatic immunity, maritime safety, and often even treatment of prisoners of war. Geopolitical actors generally have a strong interest in stability for purposes of trade, investment, travel, and communications that depends on reliable international legal frameworks. Law collapses when there is absent a political will to implement the legal norms as is the case with respect to economic and social rights. Such norms come into existence because of widely shared moral aspirations, but lack political traction to challenge entrenched private sector interests that benefit from non-compliance as with the ‘right to food’ or the ‘right to health.’ Beyond this, the absence of an international community dedicated to human interestsas distinct from national interests makes it evident that despite economic and social rights anchored in treaty law, any sense of meaningful internationalresponsibility is almost non-existent. What international relief is forthcoming in response to famine and natural disasters is invariably voluntary, a matter of good will, rather than an expression of an obligatoryresponse.

 

11.Where asymmetries of power exist, as in competing claims of sovereign rights, with respect to the delimitation of territorial boundaries or upholding the right of self-determination, law validates grievances, motivates resistance, but cannot shape political outcomes. Asymmetries of power are conventionally associated with relative military capabilities, but this has been demonstrated to be misleading in post-1945 international relations. A major recent prominent example is the overall success of the anti-colonial movement. In case after case a mobilized popular resistance of the nation overcame the superior military capabilities of the colonial power. The exceptions to this pattern involve settler colonial societies in which the native population was exterminated or marginalized as in North America, Australia, New Zealand, or somewhat assimilated as in most of Latin America. Relative military power is still highly relevant in conflicts between states, but not in their subsequent occupation. In the instances of aggression against Afghanistan and Iraq, the military superiority of the United States prevailed in the attack phase of warfare, yet during the subsequent occupation phase it endured a political defeatthat basically nullified the military victory. In the post-colonial world, popular sovereignty when effectively mobilized as resistance can often challenge geopolitical maneuvers, upholding basic rights, but at great human cost. Legitimating resistance through law as occurred in the course of the great anti-colonial struggles of the last half of the 20thcentury may have been the greatest contribution of the United Nations to peace and justice.   

 

 

12.I will end where I began, celebrating the publication of the recent books by Çubukçu and Erakat. Çubukçu helps us better understand the complex interplay of law and war from the perspective of movement politics; the geopolitical state is the target of disapproval for its behavior—trampling on the sovereign rights of the Iraqi people by waging an unprovoked war. Erakat, in contrast, explores how law has been twisted by governments to serve geopolitical interests at the expense of basic Palestinian rights, and yet normative discourse nevertheless currently serves the struggle of the Palestinian people and strengthens the political will of transnational civil society to challenge Israel.  

 

 

 

 

 

R2P and the Palestinian Ordeal: Humiliating the UN

23 May

[Prefatory Note: The posted text below will be one of the contributions in the forthcoming virtual roundtable The Responsibility to Protect and Palestine, orchestrated and editedby Coralie Pison Hindawi (AUB), that will appear soon on the Beirut Forum website, http://www.thebeirutforum.com/. The roundtable will feature additional essays by Ghassan Abu-Sittah (AUB), Irene Gendzier (Boston emeritus), Siba Grovogui (Cornell), David Palumbo-Liu (Stanford), Ilan Pappe (Exeter), Vijay Prashad (Tricontinental Institute), Mazin Qumsiyeh (Betlehem) and Chiara Redaelli (Harvard). The fact that Gaza has not even been discussed at the UN, despite the prolonged, intense victimization of its vulnerable and impoverished civilian population is one more indication of the primacy of geopolitics and the marginalization of international law and morality. Only civil society activism can keep the torch of justice burning in this global climate.]

 

 

R2P and the Palestinian Ordeal: Humuiliating the UN

 

The Emergence of R2P

At the UN World Summit in 2005 the norm of Responsibility to Protect (R2P) was formally endorsed by the participating governments with considerable fanfare. The gathering of diplomatic representatives of sovereign states also declared their intention to implement this assertion of collective responsibility on behalf of international society, as institutionally embodied in the UN. The following strong language was officially used: “In paragraphs 138 and 139 of the 2005 World Summit Outcome Document (A/RES/60/1) Heads of State and Government affirmed their responsibility to protect their own populations from genocide, war crimes, ethnic cleansing and crimes against humanity and accepted a collective responsibility to encourage and help each other uphold this commitment.”

The impetus, and even some of the language of R2P, derived from the analysis and recommendations of the International Commission on Intervention and State Sovereignty (ICISS) [See Report of the commission, ‘The Responsibility to Protect’] in response to widespread calls for creating a post-colonial normative framework to address situations such as existed in Kosovo prior to the NATO War of 1999, which rested on a humanitarian rationale but lacked UN authorization. The central idea of R2P as set forth in the ICISS Report was the rendering of protection to a people suffering severe harm due to ‘internal war, insurgency, repression or state failure.” It was not directly tied to the underlying presence of the four crimes listed in Outcome Document as triggering possible application of R2P. There is confusion resulting from two parallel framings associated with the R2P norm. The first framing relates to R2P as a response to the occurrence of the four specified crimes. The second framing is more general relating to severe civilian harm resulting from a breakdown and rupture of the internal social order. With respect to the invocation of R2P forcoerciveintervention, the UN understanding seems to be a required Security Council decision, which means the applicability of the veto and that this engages both geopolitical factors and principled objections to overriding of territorial sovereignty.

 

 

Applicability of R2P to Palestinian National Struggle

Without doubt, it would seem that the Palestinian ordeal was a perfect fit for the application of the emergent international norm associated with R2P. It is well established by now that the Palestinian people as a whole have been victimized over many years by an apartheid regime imposed by Israel for the purpose of maintaining a Jewish State, which is one instance of a crime against humanity enumerated in Article 7 of the Rome Statute that provides the constitutional framework governing the operations of the International Criminal Court. The coercive dispossession during the 1948 War of more than 700,000 Arabs who had been living in Palestine often for generations, as combined with Israel’s denial of any right of return for Palestinian who fled or were forced out, possess all the elements of the crime of ethnic cleansing. The persistent collective punishment imposed on the civilian population of Gaza not only flagrantly violates Article 33 of the Fourth Geneva Convention, and in addition is treated by international criminal law as either a crime against humanity or a war crime. In effect, it would seem that Israel has persistently and flagrantly committed three of the four crimes specified in the Outcome Document as triggers for the application of R2P.

Beyond this, however, it is made clear that the primary obligation imposed on member states of the UN is to prevent the commission of these crimes on their own sovereign territory. Other states are expected according to the Outcome Document to help states fulfill this “responsibility to protect their own populations.” In other words, Israel was responsible as a state to prevent Palestinian victimization by adopting policies and practices that were consistent with prohibitions on crimes against humanity, ethnic cleansing, and war crimes. Not only did Israel fail to do this for prolonged periods, but they affirmed a willingness to rely on such international crimes to sustain their overriding commitment to impose at all costs a Jewish state on a predominantly non-Jewish society, at least if national identity is assessed demographically. Such intentions were boldly asserted in the Basic Law of the Jewish Nation-State (2018), which reserved the right of self-determination in historic Palestine exclusivelyto the Jewish people. It is the priority of the Zionist project that explains why such international crimes of fragmentation and control are a necessary and central feature of Israeli governance. These structural and ideological dimensions  establish the basis for favoring reliance on R2P as essential to overcome the suffering and victimization of the Palestinian people. 

The logic of Israeli international crime and the relevance of R2P is compelling from objective legal, moral, and political perspectives. It rests on the existential primacy of nationalism, as reflecting the preferences of the demographic majority, as the foundation of the right of self-determination over the last century. In the case of Palestine, when the Balfour Declaration was issued in 1917, the Jewish population of Palestine was estimated to be between 5-8%, which increased as a result of Jewish immigration to around 30% at the time of the partition resolution (GA Res. 181) in 1947. In an era of decolonization it was no longer acceptable to achieve minority control via a settler colonial strategy, and it only became practical in Israel’s case by relying on elaborate oppressive structures to control national resistance as reinforced by solidarity initiatives of a decolonizing non-Western world. The Zionist movement also pledged a commitment to establish ‘democracy’ in Israel in addition to establishing a Jewish state, which meant that the Palestinian demographic presence must be kept permanently as small as possible. Such a combination of ethnic and political goals led to a continuous process of ethnic cleansing, as supplemented by a refusal to repatriate Palestinian refugees and allow the return of exiles. To meet the challenge of Palestinian resistance led to an almost inevitable reliance by Israel on the establishment of an apartheid regime alone able to ensure the security and ambitions of a Jewish state. [For clarification and amplification see UN ESCWA Report, “Israeli Practices Toward the Palestinian People and the Question of Apartheid,”March 15, 2017] Such a reliance on such racially delimited structures had the same objective as South African apartheid, that of keeping one ethnicity or race in control of territorial sovereignty by subjugating another race, although the nature of the apartheid structures and the socio-economic settings of the two countries was very different.

It seems self-evident that from legalistic and ethical perspectives R2P should have been invoked and applied to alleviate and terminate Palestinian victimization resulting from Israeli reliance on policies and practices that are the precise crimes that are supposed to engage this responsibility to accord international protection. This assessment is bolstered by the Israeli refusals to take measures on their own to govern the country in a manner consistent with international law. How, then, do we interpret the silence surrounding R2P when it comes to its application with respect to Israel?

 

The Primacy of Geopolitics at the UN: Legalistically and Politically 

The primary explanation is political and geopolitical. From a political perspective the political consensus underlying the endorsement of R2P never anticipated that the norm would be applied in its coercive modes without the approval, or at least the acquiescence, of the five permanent members of the Security Council. In effect the norm was subject to a geopolitical veto, which was a crucial self-limitation, at least if conceived as an extension of UN responsibility to internal state/society issues. Less abstractly, it was apparent that any attempt to invoke R2P with respect to Israel would be blocked by the United States, in all likelihood, supported by France and the United Kingdom, and even possibly by China and Russia. The Western powers would block R2P because of their ‘special relationships’ with Israel while China and Russia would be wary of any attempt to create a precedent validating forcible intervention in the internal affairs of sovereign states. These two states learned a lesson when they allowed the application of R2P in Libya in 2011 by abstaining from the Security Council initiative (SC Res. 1973) of Western countries to mount an emergency humanitarian undertaking to protect through a no-fly zone the civilian population of Benghazi against approaching Libyan armies. The military operation mounted by NATO supposedly to implement the resolution almost immediately became a regime-changing intervention of greatly expanded scope. The intervention reached its climax with the brutal execution of the head of the Libyan state, Muammar Qaddafi. The two sides of R2P diplomacy become evident by comparing the cases of Palestine and Libya. With respect to Palestine invocation of the norm is precluded by geopolitics, while with respect to Libya the use of force was legitimized by a R2P justification, which was then undermined by an ultra virus expansion of the scope of UNSC authorization required to reach Western geopolitical goals. In both instances, the hypothesis of the primacy of geopolitics is sustained. 

 

A Concluding Comment

It should be evident that despite the universalist language, the application of R2P was deliberately limited to extremely rare instances where a geopolitical consensus existed, and additionally, to situations where the capabilities needed to address the challenge of effective protection was available to the UN. If the intention was to find a way to address the kind of situation that led NATO to act outside the UN framework to protect the people of Kosovo in 1999, the R2P approach is little short of delusional. Russia, and likely China, would certainly have vetoed the invocation of R2P in a situation that contained the political implications of Kosovo even if there had been no Libyan disillusioning experience with respect to authorizing humanitarian claims to apply R2P. The primacy of geopolitics poses three sets of obstacles to the use of R2P as a means of protecting people from the four categories of specified criminality in Summit Outcome Document: (1) the legalistic right of veto available to the five permanent members of the Security Council; (2) the politically amorphous pattern of alignments that are given precedence over impulses to apply and enforce international criminal law; (3) the world order reluctance by several leading states to encroach upon the internal territorial supremacy of sovereign states.

For these reasons, it is evident that short of unforeseeable changes in the global setting, R2P is unlikely to be invoked, and if invoked, almost certain to be blocked in application with respect to the criminal victimization of the Palestinian people. This is a sad demonstration of the unwillingness and inability of the UN to accept existential responsibility for the protection of peoples being severely victimized by the specified crimes in situations where the territorial sovereign government is itself the culprit or supportive of the alleged criminality. As international experience since 2005 shows, R2P as a UN innovation functions primarily as a geopolitical instrument, and does not in any way overcome the kind of Kosovo challenge that it was designed to address or to create a normative alternative to ‘humanitarian intervention’ in the post-colonial world.

If there is a lesson for the Palestinian struggle it is this. Do not look for relief to any future application of R2P, or for that matter, to inter-governmental diplomacy or the UN. The only path to ending current patterns of criminal victimization is by a combination of Palestinian national resistance and global solidarity initiatives. One such initiative is the BDS Campaign that would reach a tipping point if and when geopolitical factors and Israeli national self-interest are recalculated due to pressures from within and without Israel/Palestine. At such a point substituting a democratic form of peaceful coexistence for current apartheid structures would be then perceived as a matter of self-interest as became the case in South Africa after the Afrikaaner governing elite concluded that the white population would be better off in a constitutional multi-racila democracy than by living with sanctions and illegitimacy as an apartheid state.                                                                                                                                                                                                                       

Required Reading on Palestine

13 May

Andrew Ross’s Stone Men: The Palestinians Who Built Israel (Verso; 2019)

 

On May 10thAndrew Ross came to University of California, Santa Barbara for a discussion of his extraordinaryBook, Stone Men, offering the audience a lively presentation enlivened by a PowerPoint array of informative pictures. I took part in a conversation with Andrew that was held prior to giving the small, yet intense, audience an opportunity to participate with questions. And. comments. Andrew expressed the most startling aspect of Stone Men in these words:“..it would be no exaggeration to say that the ‘stone men’ of Palestine have built every state in the region except their own.” (3) His very readable text mainly adopts a somewhat narrower focus, concentrating its efforts on the particular role of Palestinian workers and the rich stone quarries of Palestine in the physical evolution of the Israeli state, not only establishing its architectural identity, but also shaping relations between Arab and Jewish workers and labor unions, but also the contradictions that emerged between the market drive for profits by the Israeli private sector and the Zionist willingness to sacrifice profits and construction quality to achieve racial purity, which meant maximal Jewishness.

 

Reading Andrew’s book was for me quite a humbling encounter. Despite having immersed myself in the literature and politics of the Palestinian struggle for the past two decades I was almost totally unaware of how revealingly relevant to the underlying struggle was this story of the. physical building of urban Israel. This focus provides a parallel and persuasive confirmation of my contention that the ‘original sin’ of Zionism is to establish a Jewish state in a non-Jewish society. It is the original sin because it leads from the earliest Zionist conceptions more than a century ago of a Jewish homeland to the ethnic cleansing of the Nakba, the resistance of the Palestinian people, their repression, the dependence on apartheid methods and structures to control resistance and establish Israeli security. Andrew’s explorations of the way that this reality is concretely expressed in the building of Israel with Palestinian stones (the most valuable resource of the country aside from water) and Palestinian labor skilled over generations in the craft of stone masonry is not only a grim tale of exploitation and domination characteristic of settler colonialism, but in this case more than most colonial ventures, explicates the Zionist effort to displace the indigenous identity of the country with their own imported brand of coercive displacement or ethnic cleansing and biblical entitlement.  In other words, just as Palestinian stone and water no longer belong to the Palestinian people neither does even the history nor identity of the place.

 

This interaction of displacement and resistance was accentuated and made especially severe due to four linked characteristics: first, Zionism was swimming against the anti-colonial tide of twentieth century history by their project to impose a democratic Jewish state on a non-Jewish societal reality; secondly, such political background also stimulated and sustained Palestinian resistance as an ongoing battleground of anti-colonialism, reinforced by the. global legitimacy of its nationalist aspirations; thirdly, such legitimate resistance, especially in the face of Israeli apartheid and crimes against humanity, has given rise to a global solidarity movement; and fourthly, this entire dynamic is deformed by the continued geopolitical reinforcement of the Zionist Project, especially by the United States, carried to a surrealistic extreme by the Trump presidency.

 

I especially appreciated Andrew’s avoidance of the tendency of American liberals to treat the two sides in a language of false symmetry. Obama was a master of such rhetoric, characteristically declaring that both sides share blame for the failure to find a peaceful solution and that real peace will depend on painful concessions by both sides. This kind of languages falsifies and deliberately ignores the essential asymmetry of the relationship between Israeli Jews and Palestinians, which as indicated, is an apartheid state premised on inequality and the subjugation of the Palestinian people as a whole. It follows from this that the fundamental first step toward a sustainable peace must come from Israel, which in this instance would require the renunciation of apartheid and the dismantling of its structures. Only on the basis of the existential equality of the two peoples does a sustainable peace based on diplomacy and negotiations become a plausible possibility. This is what happened in South Africa, and incidentally, in a manner that was unexpected by both the experts and the citizenry of the country.

 

I was also impressed by the refreshing transparencyof Andrew’s scholarly profile, a quality that is in short supply in the academic literature. Such transparency assumes the properties of what I would label as ‘partisan objectivity.’ This contrasts with standard academic writing that hides the author’s point of view behind a veil of detached rhetoric. Andrew makes clear his solidarity with the Palestinian struggle for peace-with-justice as dependent upon the establishment of a democratic secular state, which is a controversial observational standpoint. Such a standpoint implicitly means the end of the Zionist insistence on the identity of post-mandate of Palestine as a Jewish state, which according to the Basic Law enacted by the Knesset in 2018 reserves the right of self-determination exclusivelyfor the Jewish people. This enactment not only reinforces the contention that Israel is guilty of the international crime of apartheid, and as well pushes the logic of Palestinian displacement (Nakba)a step closer to its outer limit. In presenting this narrative of how Israel was built over the decades Andrew presents a range of Palestinian and Israeli voices that give an objective account of perceptions and experience with the author largely limiting his role to recording, listening,  and describing. but this author is also a knowing and feeling subject, and this reality is acknowledged, not suppressed. I regard this as a significant achievement, and a model for the rest of us to follow.

 

Among the most moving aspects of the book is the exposure of the deep personal and interpersonal conflicts faced by virtually all Palestinians. To earn a living many Palestinians work in the settlements or obtain work permits to take construction jobs across the green line. Such individuals feel fortunate to have these opportunities to earn a living wage, yet this good fortune creates severe tensions within self, family, and community. To survive materially, Palestinian males must often be complicit in Israeli expansionism and apartheid policies. Such a situation confronts individuals with a terrible dilemma of choosing between complicity and criminality, either giving priority to day to day imperatives of survival or to direct participation in resistance. Several Palestinian interviewees relate their own experience of throwing stones as a youngster only to later becoming a  worker at an Israeli settlement so as to fulfill responsibilities as a family provider,. This is never an easy path for a Palestinian, given the humiliation and acute insecurities that inevitably arise.  Some Palestinians. Interviewed in the book convey their adjustment to the realities of the occupation as in constant flux, being compliant for the sake of paid work, and being oppositional when opportunities arise.

 

It is against this background that I recommend Stone Men so highly. Not only is the argument, the abundant photos, and the evidence gathered impressive and interesting, but the methodology is an exemplary instance of ethnographic studies, relying on copious empirical observation and numerous interviews with Palestinians and Israelis to explain the realities in their own voices. Ross has a gift for quotation that further conveys his underlying, irrefutable message. In this sense the book practices what it preaches—empowerment of people, the inalienable entitlement of a rooted presence in national space, the fabric of injustice as described by those most victimized, and the anti-colonial mentality that can be repressed but not extinguished.

 

My final assessment: no matter how much you think you know about Palestine, you do not know enough until you have read this book.