Tag Archives: international criminal law

Julian Assange: Criminal or Benefactor?

14 Apr

Julian Assange: Criminal or Benefactor?

 

I suppose it is of interest that Donald Trump and Hillary Clinton have found something to agree about—the criminal indictment of Julian Assange.  Trump is acutely vulnerable to the exposure of truth and Clinton blames her electoral defeat in 2016 partly on what WikiLeaks disclosed about her improper use of a government computer to send private emails. Such are the perverse ways of the deeply unjust.

 

The liberal media is not happy with this indictment, although it also wants to distance itself from justifications for Assange’s claims of journalistic privilege, viewing him as a lone wolf with rogue traits. There are solemn assessments evaluating the narrowly framed government indictment charging cyber-crime, that is, publishing illicitly obtained classified documents from a digital source, apparently an apolitical everyday occurrence for government employees. What is apparently at legal issue is deciding whether or not Assange should be protected by reference to freedom of expression or prosecuted as a cyber-criminal without reference to his motivation.

 

A few commentators have noted that the main reason to go after Assange is to discourage whistleblowing of the sort most prominently associated with the disclosures of Daniel Ellsberg and Edward Snowden. Here Assange is accused of conspiring with another heroic American whistleblower, Chelsea Manning, in obtaining the documents that featured 800 Guantanamo Bay ‘detainee assessment briefs’ and more than 400,000 cables and documents relating to the wars in Afghanistan and Iraq. A particularly damaging document was a video showing deliberate bombing of civilians in Iraq by American pilots, clear evidence of a serious war crime.

 

WikiLeaks, co-founded by Julian Assange in 2006, has been dedicated all along to the ideal of transparency in state/society relations as promoted by civil society initiatives. As such, it can be viewed as a service institution of robust democracy, a needed contemporary check on gross misuses of governmental secrecy. We know from a reading of the Pentagon Papers that what made publication so provocative was the degree to which the truths about the Vietnam War were being hidden from the American people through the misuse of classification protocols. There was little in the original twelve volumes of the Pentagon Papers that the Vietnamese ‘enemy’ did not know already. The inflammatory message of the Papers was how and why the war in Vietnam was going badly while the government was disseminating to the world a rosy picture of how well things were proceeding, which had the political effect of extending an unlawful war by years at the cost of tens of thousands American and Vietnamese lives. I remember hearing George Ball speak off the record a few days after he resigned as LBJ’s Under Secretary of State for Economic and Agricultural Affairs in the late 1960s about why he dissented from the Vietnam policies. He started his talk by saying “I only began to understand the Vietnam War when I stopped reading the cables from Saigon.” In other words, the patterns of deception were withinthe government as well as betweenthe government and the public.

 

We are up against a basic challenge posed by the digital age where the government operates as a citadel of surveillance, collecting meta-data on its own citizenry as well as on masses of foreigners, threatening dissent, privacy, and theessence of freedom itself. It was these concerns that led Snowden to do what he did a few years ago, and yet be pursued around the world as if a dangerous criminal, and not at first by the Trumpist right, but by the moderate center that was in political control of the government during the Obama presidency.

 

The republican idea of governance, that is, the founding principles of the American system of constitutional governance, relied on ‘checks and balances’ and ‘separation of powers’ to restrain excesses and abuses of power by the state. Such governance was reinforced by the first ten amendments to the U.S. Constitution that conferred an array of rights on the citizenry both as protection against an overreaching state and as protection against various manifestations of ‘the tyranny of the majority.’

 

The WikiLeaks role is especially important in the war/peace context as war-mongering governments tend to exaggerate, if not lie, to mobilize public support. This vital dimension of republicanism, designed to distinguish the American political undertaking from monarchies where war was often regarded as ‘the sport of kings,’ was entrusted to Congress, the legislative branch of government most directly connected with the people. The modern security state has moved away from restraints on war making as Congress has virtually abandoned its initially vital constitutional role of authorizing recourse to war. To revitalize this kind of republican democracy requires new instruments of transparency and validation of truth telling public servants. Otherwise, as in the Trump era, democratic constitutionalism can succumb to pre-fascist demagoguery.

 

A reinforcing observation in the American context arises from the corporatization of the media, as well as an appreciation of the unseemly recent closeness of the media to the intelligence and security governmental establishment. This has definitely weakened the independent and watchman role of journalism, especially TV, as part of the checks and balances framework in relation to the war/peace agenda, including the most trusted media outlets. Listeners of CNN, let alone FOX, know too well how debate on controversial foreign policy issues is almost exclusively entrusted to ex-generals,  admirals, CIA officials, and think tank hawks. It is rare to have the opportunity to hear the views of a civil society progressive or an articulate critic of global militarism, American style.

 

In contrast, WikiLeaks is independent of corporations, media, and governments, and has since its inception been devoted to the publication of materials incriminating governments and their private sector allies. We need to affirm WikiLeaks and whistleblowing as part of the legitimate architecture of constitutional democracy in the digital age. By criminalizing anti-war or human rights whistleblowing the political system is ratifying the suicide of substantive democracy.

 

Admittedly, this generalized endorsement of such transparency assumes that the government or the private sector have no legitimate secrets. I think there should be protection of legitimate state secrets wherein the criminality of unauthorized disclosures would require the government to sustain a burden of truth beyond a reasonable doubt that the material released was not in the public interest. This is bound to be a controversial line to draw conceptually and in practice. In quite different circumstances the release of the full Mueller Report tests whether transparency will lose out to those anti-democratic forces trying to hide, or at least obscure by redaction, the extent of wrongdoing by the Trump administration.

 

In the background should be the realization that whistleblowers rarely, if ever, act without a deeply felt sense that information crucial for the public to know about is being wrongfully withheld. Even without legal repercussions there are often high costs incurred by whistleblowers in relation to career and reputation. You are forever feared as the opposite of ‘a team player,’ so important for the morale and standard operating procedures of almost all bureaucracies, but especially those of government. I know this the personal experience of friends. Dan Ellsberg and Tony Russo, the Pentagon Papers whistleblowers were forever non-legally tainted by their brave acts of true patriotism. They realized at the time that they were taking big risks of prison and would in any event pay a high price though informal dynamics of exclusion, and yet acted out of their profound feelings of loyalty to America’s professed values. And it is true that Ellsberg, in particular, has been ‘compensated’ by being lionized in civil society as an offset to being permanently invalidated as a high-level civil servant.

 

What is mainly forgotten in relation to these whistleblowing incidents is the truly incriminating content of the disclosures. In each of these prominent instances the material released there was exposed criminal conduct by the government of a kind that threatens millions of lives and confirms the most shocking suspicions about government conduct in war zones or through malicious encroachments on public liberty.

 

It seems apt to recall President Franklin Roosevelt’s 1944 message on German war crimes directed at the German people in the midst of World War II: “Hitler is committing war crimes in the name of the German people. I ask every German and every man everywhere under German domination to show the world by his action that in his heart he does not share these insane criminal desires. Let him hide the victims, help them to get over their borders, and do what they can to save them from the Nazi hangman. I ask him also to keep watch and to record the evidence that will one day be used to convict the guilty.” (emphasis added) Is this not precisely what Chelsea Manning and Julian Assange have been doing?

 

As the U.S. Chief Prosecutor at Nuremberg, Justice Robert H. Jackson, reminded the world in his opening statement at the trials, if prosecution,  conviction, and punishment of the defendants is “to serve a useful purpose” it must in the future condemn similar lawlessness by others “including those who sit in here in judgment.” In effect, if the rule of law is to govern human behavior with respect to war crimes and crimes against humanity, the sort of ‘victors’ justice’ applied to the German and Japanese losers must in the future be replaced by ‘justice,’ that is, the application of law to all who violate it. Of course, this Nuremberg Promise has been repaeatedly broken in spirit and substance, and most defiantly by the Trump/Bolton attacks on the very existence of the International Criminal Court.

 

The UN Membership unanimously affirmed that the Nuremberg Judgment was a desirable development of international law in General Assembly Resolution 95(I). In addition, the International Law Commission, the most authoritative body entrusted with the codification and development of international law formulated

The Nuremberg Principles in 1946 to formalize the impact of the trials on international criminal law. Of particular relevance is final Principle VII: “Complicity in the commission of a crime against the peace, a war

crime, or a crime against humanity..is a crime under international law.” Fairly read, this proposition would suggest that the U.S. Government moves to prosecute Assange are themselves crimes, while the acts of Assange are commendable efforts to prevent international crimes from continuing.

 

Such reasoning should also be relevant to the British judicial response to the formal American request for extradition. Of course, extradition should be denied because ‘political crimes’ are by treaty arrangement not extraditable, and if there ever was a political crime it is this apparently failed attempt by Assange to hack the password of a government computer so as to hide the identity of the whistleblower, Chelsea Manning.

 

In the context of antiwar activism during the Vietnam War I made the argument that there existed a ‘Nuremberg Obligation’ that had moral, if not legal authority. In effect, the Nuremberg Obligation in light of the material discussed above means that every person has the rightand is subject to the dutyto contribute to the exposure of violations of international criminal law in war/peace and human rights contexts. Additionally, this moral right/duty could be reasonably construed as a legal obligation.

 

Julian Assange should be judged against this background. This applies not only to the underlying criminal charge, but to withdrawal of asylum status by the government of Ecuador that led to Assange’s unseemly arrest London and to the judicial treatment of the extradition request by the British judiciary.

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UN Gaza Report Part II: Israel’s Counterinsuurgency Apologist: Colonel Richard Kemp

6 Jul

 

Retired British colonel, Richard Kemp, has been an ardent supporter of Israel’s three major military operations in Gaza conducted over the last six

years. He has collaborated on several occasions with the two notoriously pro-Israeli NGOs, UN Watch and NGO Monitor, serving on the Advisory Board of the latter and appearing as star witness under such auspices at the UN, most recently at a two-day side event at UN Headquarters in Geneva devoted to condemning the UN Commission of Inquiry Report on the Gaza War of 2014.

 

There is no doubt that Col. Kemp has the credentials to speak as a counterinsurgency specialist, having served as commander of British forces

in Afghanistan and elsewhere, where he acknowledges close cooperation with Mossad and the influence of Israeli tactics. In fairness, Kemp writes from such a militarist view with little effort to assess the relevance of international humanitarian law, treating ‘military effectiveness’ as determined by military commanders as the defining criterion of legality for a challenged battlefield practice. In his own words, “[i]t’s the dispassionate military perspective that I bring.” Of course, such an outlook ignores the relevance of international criminal law, which is to superimpose accountability as a constraining framework on this ‘military perspective.’ Actually, Kemp doesn’t so much ignore international criminal law as to (mis)interpret its rules so as to vindicate the tactics of the counterinsurgent side while condemning those of the insurgent.

 

On June 25, 2015 the New York Times published an opinion piece by Kemp assessing the UN Report. What I find scandalous and perverse on the part of this self-claiming authoritative media source, is to publish such a harsh and partisan dismissal of a prudent and overly balanced report without any kind of offsetting piece. I can only imagine the furor that would have been provoked if the NYT had published a piece by an expert in international criminal law, say William Schabas or John Dugard, calling for the indictment and prosecution of Israel’s political and military leaders on the basis of the Report. At least, if such a piece had been published alongside the Kemp article, NYT readers could have been exposed to the realities of controversy flowing from these UN allegations that Israel (and to a far lesser extent, Hamas) was guilty of war crimes.

 

Kemp begins his article with the claim that “..it pains me greatly to see words and actions from the UN that can only provoke further violence and loss of life.” As is ‘law’ imposed on the powerful and not their weaponry is responsible for violence and the loss of life in Gaza. We are not told exactly why reaches this perverse conclusion, but presumably Kemp believes that the condemnation of Israel’s use of indiscriminate and disproportionate force would embolden Hamas, and Palestinians generally, to continue to claim a right of resistance. What Kemp (and Israel) obviously seek is a circumstance in which whatever the dominant military forces do is validated by its effectiveness and what a population under domination does in opposition is condemned with the implication that resistance to Israel’s prolonged occupation is inherently unlawful.

 

Kemp’s puff piece is filled with bland endorsements of Israel’s most blatant propaganda. For instance, Kemp asserts, in complete disregard of the evidence, that Israel imposed the blockade on Gaza “only in response to attacks by Hamas.” While it is common knowledge, even in Israel, that the blockade has been maintained since 2007 as a ‘collective punishment’ imposed on the civilian population of Gaza, having little to do with security, which was mainly sustained by way of rigorous monitoring of all crossings to and from Gaza, and with Egypt’s cooperation at Rafah during the Mubarak era and since Sisi’s ascent. Kemp has nothing to say about Israel’s frequent lethal incursions into Gaza that have accompanied the occupation since it started in 1967, and he uncritically supports Israel’s distorted one-sided timeline that claims Israel only attacks in retaliation for missiles and mortar fire from Hamas, and never initiates violent interactions by on its own. Kemp also never refers to the ceasefires broken by Israel, as in the leadup to Operation Cast Lead at the end of 2008. Instead, as Kemp has written elsewhere of this earlier brutal attack on a vulnerable, cage population, “I can only say this: during Operation Cast Lead, the IDF did more to safeguard the rights of civilians in the combat zone than any other army in the history of warfare.”

 

Most disturbingly, Kemp writes in a condescending manner as follows: “The report is characterized by a lack of understanding of warfare,” as revealed by its failure to compare what Israel is doing with what the U.S. and Britain have done in Afghanistan, Iraq. In Kemp’s words, Israeli tactics are no different than those used extensively by American and British forces in similar circumstances.” What is most dangerous about this counterinsurgency worldview is its implicit reasoning that allows such conclusions to be set forth in good faith by professional soldiers. To begin with, Kemp is essentially correct that the counterinsurgency wars waged by the U.S. and Britain have relied on similar tactics, but does that make Israel’s pattern consistent with international law and morality? Most international law assessments of these uses of modern weaponry against densely populated civilian areas consider such tactics to be severe war crimes, not models to be invoked as validation.

Kemp’s state of play is revealed here: converting past crimes into authoritative precedents to justify present crimes, or to transform crimes into legitimate counterinsurgency tactics.

 

Beyond this, Israel’s tactics are worse in some instances than those of its predecessors. Whereas in Vietnam, the United States used its far less precise air power to inflict heavy casualties on the Vietnamese civilian population it refrained from attacking urban population centers as Israel did in the Gaza attack of 2014, as well as the earlier ones. Even in Falluja, the worst instance of American firepower directed at a city believed to be a center of insurgent opposition in Iraq to American occupation, the population was given ample time to vacate the city after warnings of impending attack. In contrast, except for the 800 Palestinians that held foreign passports who were allowed to leave Gaza, the remainder of the civilian population in Gaza was locked into the combat zone, losing even the desperate option of fleeing to safety by becoming a refugee. Col. Kemp, invoking his counterinsurgency experience and knowledge, never sees fit to mention such a damning ‘detail.’

Nor does he bother to point out that the whole of Gaza was a combat zone, and that civilians, including women and children, had no place of sanctuary and safety, other than to seek refuge in UN facilities and mosques, which then were turned into targets because of Israeli claims that weapons were stored in these places.

 

Parroting the worst elements of Israeli hasbara, Kemp sets forth this grotesque characterization of Hamas tactics: “Unable to inflict existential harm on Israel by military means, Hamas sought to cause large numbers of casualties among its own people in order to bring condemnation and unbearable diplomatic pressure against Israel.” To make such an extreme allegation without bothering to cite evidence is to portray Hamas as seeking the genocidal annihilation of its own people. This is an odd accusation in view of the evidence that Hamas became gained more popular support from the Gazan population after this Israeli attack than before, presumably because of its steadfastness under the most severe of pressures. Also, Kemp withholds comments on the repeated and strenuous efforts of Hamas to seek the renewal of the ceasefire prior to the initiation of the Israel onslaught in early July of 2014.

 

In effect, Kemp is appraising Israel’s behavior on the basis of the ‘new normal’ prevailing among counterinsurgency hawks that have led the West into war after war in its futile effort to defer the death of European colonialism, and its American sequel. What is done by the West is justified by military effectiveness (although without noticing that these wars have all been eventually lost), what is done by the forces of national resistance is criminalized if not demonized as ‘barbarism.’

 

 

It is not surprising that UN Watch and NGO Monitor organized an elaborate side event at the Palais des Nations in Geneva last week that featured Richard Kemp as its lead speakers, but included an array of other counterinsurgency specialists, with no attempt whatsoever to bring to bear the perspectives of international humanitarian law except in the spirit of Israeli apologetics. For description of this event held on June 29-30 see the home pages of either UN Watch or NGO Monitor. It is notable that unlike the response to the Goldstone Report in 2009 that featured denunciations of bias and personal attacks, the orchestrated reaction to COI report is more sophisticated, relying on a variety of substantive reports that set forth Israel’s claims of justification, a media blitz, along with major advocacy efforts by Israel’s well-trained NGO poodles.

 

A welcome contrasting vision, closer to law, morality, and reality is offered by Max Blumenthal in his new book, The 51 Day War: Ruin and Resistance in Gaza (2015). David Swanson, the noted anti-war activist, titles his review of Blumenthal’s book, “the 51-day Genocide” <http//davidswanson.org/node/4815> As Swanson puts it in his review of the book, “I can think of a few other words that characterized the 2014 assault on Gaza in addition to ‘war,’ among them, occupation, murder-spree, and genocide. Each serves a valuable purpose. Each is correct.”

 

Opposing Impunity for Geopolitical Criminality

5 Apr

 

 

Responding to intense pressure from the usual sources William Schabas, a prominent and respected expert on international criminal law, recently resigned as Chair of the UN expert commission of inquiry into war crimes allegations arising from the massive Israeli military operations in Gaza during July and August of 2014. These issues relating to international criminal accountability have also received recent prominence due to Palestine’s adherence to the Rome Treaty making it a party to the International Criminal Court, an initiative that generated an enraged punitive reaction on the part of Israel as well as an angry denunciation by Washington. On display in these instances is the struggle between extending the rule of law to international state crimes and the geopolitical resistance to such an effort whenever accountability to law is in tension with the pursuit of strategic interests.

Imposing international criminal responsibility upon political leaders and military commanders that occur in the aftermath of wars possesses a dual character from a geopolitical perspective: to vindicate major military undertakings of liberal democratic states and to ensure impunity for the leaders of these same states in the event that their behavior or that of their allies are alleged to be international crimes. These efforts at vindication are associated with strengthening the global rule of law and validating the established order, while impunity is invoked to insulate powerful individuals and their governments from criminal accountability. The resulting pattern in international life is one of double standards at the level of implementation and hypocritical rhetoric about the importance of a global rule of law based on its universal applicability.

 

Contemporary experience with these issues is grounded in the aftermath of World War II. In 1945 with great fanfare after World War II, especially at Nuremberg in the legal prosecution of surviving Nazi leaders, as well as at Toyko where a series of prominent Japanese personalities who had headed the imperial government and commanded its military forces were accused and convicted of international crimes. These sophisticated ‘show trials’ were generally endorsed in the West as a civilized alternative to the favored Soviet and British approaches, which would have been to arrange summary mass executions of all Germans deemed responsible for international crimes without making any effort to assess the gravity or accuracy of the charges directed at specific individuals. What was done at Nuremberg in 1945 was for prosecutors to prepare carefully evidence of alleged wrongdoing of each defendant under indictment as well as developing arguments about the legal relevance of the international crimes at stake while giving those accused an almost free hand to offer legal defenses and mitigating evidence as prepared by competent lawyers appointed to render them assistance.

 

In most respects, Nuremberg in particular continues to be viewed as a landmark success in the annals of the progressive development of international law. It is also significant that the outcomes of parallel Tokyo prosecutions of Japanese leaders are virtually unknown except in Japan where they are decried as ‘victors’ justice’ and throughout the world among a few specialists in international criminal law.

 

There are several reasons for the prominence of Nuremberg. First of all, the disclosures of the Holocaust at Nuremberg were so ghastly that some sort of punishment of those responsible seemed to be a moral imperative at the time.

Although the crime of genocide did not yet exist in law, the revelations of the Nuremberg proceedings documented as never before the systematic extermination of Jews and others in Europe. Beyond this, the war was widely believed to have been a just and necessary response to the menace of Naziism and Japanese imperialism, and their embrace of aggressive war. The Allied victory was viewed as decisive in overcoming the fascist challenge to liberal democracy, with the Nuremberg Judgment providing an authoritative rationale for waging a defensive war so costly in lives, devastation, and resources. Finally, the claim to be establishing a structure of legal accountability that took precedence over national law seemed integral to the postwar resolve to keep the peace in the future and deter aggression by reminding all leaders of the possibility of criminal accountability for initiating a war or abusing people under their control. The advent of nuclear weaponry reinforced the moral and political conviction that major wars must now be prevented by all available means, including this warning to leaders and military commanders that their actions could become the subject of criminal prosecution.

 

At the same time, this Nuremberg/Tokyo experiment was tainted from the outset. It was clearly victors’ justice that incorporated double standards. The evident crimes of the winners in the war were not even investigated, including the atomic bombings of two Japanese cities, which were viewed around the world as perhaps the worst single acts of wrongdoing throughout the course of the entire war, and only the Nazi death camps were in some way equivalent in relation to legality and morality. There were official statements made at Nuremberg that those who sat in judgment of the Germans would in the future be subject to similar procedures of accountability if they committed acts that seemed to be crimes under international law implying that the rule of law would replace victors’ justice. In effect, the claim made on behalf of moral credibility and political fairness was that this Nuremberg/Tokyo approach would assume the attributes of the rule of law by treating equals equally in future conflicts. Such expectations, if scrutinized, seemed to reflect the hopes of ‘liberal legalists’ in universal legal standards, but were never realistic goals given the structure and nature of world politics.

 

In effect, this Nuremberg promise could not be kept because geopolitical primacy continues to set the limits of legal accountability. Although there has existed an International Criminal Court since 2002, and ample grounds for believing that some major sovereign states have committed international crimes, there have zero prosecutions directed at dominant political actors, and not even investigations into possible criminality have been launched. Such a pattern results from a normative gap in world order that is not likely to be closed soon. It is a gap that is most visibly expressed by reference to the right of veto possessed as a matter of law by the five permanent members of the UN Security Council. This right of veto amounts to an institutional grant of exemption from the legal obligation to comply with the UN Charter on matters of peace and security. For these five states and their friends and allies, compliance is discretionary, and non-compliance is in effect ‘a right.’ In this regard, the UN Charter is itself a product of what might be called ‘geopolitical realism,’ which takes precedence over the apolitical aspirations of ‘liberal legalists.’

 

And yet, the impulse to hold accountable those who commit crimes against the peace, war crimes, and crimes against humanity remains strong among moderate democratic governments and in some sectors of global civil society. As a result there is some further development of the Nuremberg idea, although the fundamental tensions between hard power and establishing a credible rule of law with general applicability remains. During the 1990s the UN Security Council established ad hoc international tribunals to assess criminal responsibility associated with the breakup of former Yugoslavia and in relation to the genocidal massacres in Rwanda. In these North/South settings, there was more willingness to allow all sides to bring forth their arguments about the criminal behavior of their adversary since there were no allegations directed at geopolitical heavyweights. That is, the approach of liberal legalists became practical in these situations where no high profile geopolitical actor is being accused of an international crime.

 

The International Criminal Court was itself brought into being in 2002 by an unusual coalition of forces, joining governments with a great many NGOs drawn from around the world in a joint project. What came into being is an international institution with a mandate to investigate and prosecute, but lacking the participation and support of the dominant states, and operating within a framework that up to now has been deferential to the sensitivities of sovereign states in the West. Operating in such a limited way has led the ICC in its first decade to focus its attention almost entirely on African leaders, while looking the other way with respect to geopolitical actors. Liberals conceive of this as progress, doing what can be done, and beneficial to the extent that it apprehends some persons who have been responsible for atrocities and crimes against humanity. Critics of the ICC view it as another venue for the administration of ‘victors’ justice’ and an inscription of Western moral hegemony that entails a cynical expression of double standards. Both interpretations are plausible. The ICC is currently facing an identity test as to whether it will undertake investigations of alleged Israeli criminality made at the request of Palestine. Its institutional weight is being demonstrated by the degree to which the Israeli leadership reacts with fury, punitive policies, and intense anger directed at the Palestinian Authority for raising such a possibility. It should surprise few that Israel’s backlash against the ICC is supported by the United States.

 

For centuries there has been recognized the capacity of national courts to act as agents of law enforcement in relation to international wrongdoing. Such a judicial role was long exercised in Western countries in relation to international piracy, which was viewed as a crime against the whole world and hence could be prosecuted anywhere. Such an extension of international criminal law is based on ideas of ‘universal jurisdiction,’ strengthening the capacity of international society to address serious crimes of state. This kind of approach receive great attention in relation to allegations of torture made against the former Chilean dictator, Augusto Pinochet, after he was detained by Britain in response to a 1998 request for extradition by Spain where a court stood ready to prosecute on the basis of indictments already made. After a series of legal proceedings in Britain the House of Lords acting as the country’s highest judicial body decided that Pinochet should be extradited, but only for torture charges relating to a period after torture became an international crime within Britain. In theory, national courts could become much more active in relation to universal jurisdiction if so empowered by parliamentary mandate, but again doing so without challenging geopolitical red lines. When Belgian courts threatened to proceed against Donald Rumsfeld because of his alleged authorization of torture in Iraq, political pressures were mounted by Washington, including even threats to move NATO. In the end, Belgium backed down by revising its national criminal code so as to make it much more difficult to prosecute international crimes that occurred outside of Belgium and for which Belgians were not victims or perpetrators.

 

Civil society has also acted to close the normative gap created by patterns of geopolitical impunity. In the midst of the Vietnam War, motivated by a sense of moral outrage and the paralysis of official institutions when it came to challenging American behavior, Bertrand Russell organized a symbolic legal proceeding that investigated charges of criminality in 1966 and 1967. Prominent intellectuals from around the world were invited to serve as a jury of conscience, heard evidence, issuing their opinion as to law and facts at the end. Inspired by this Russell Tribunal experience, the Permanent Peoples Tribunal was established a decade later by citizens, operating out of Rome, holding sessions on issues where there existed moral outrage, legal prohibitions, and institutional paralysis, symbolically challenging geopolitical impunity. In 2005 there was organized in Istanbul by a dedicated group of female activists an independent tribunal to investigate war crimes charges against British and American political and military leaders, as well as corporate actors associated with the Iraq War. The Iraq War Tribunal relied upon a jury of conscience chaired by Arundhati Roy to pronounce upon the evidence. Of course, such a tribunal can only challenge impunity symbolically by influencing public opinion, and possibly through encouraging boycotts and other moves that delegitimize the claimants of power and possibly alter the political climate. Nevertheless, it plays a role in the legitimacy war dimensions of international conflicts, providing an alternative narrative to the discourse

disseminated by geopolitical forces and giving encouragement to civil society activism by providing a convincing rationale for concluding that contested behavior violates fundamental norms of international law and morality.

 

In summary, it is still accurate to observe that geopolitical primacy inhibits the implementation of international criminal law from the perspective of a global rule of law regime that treats equals equally. At the same time, ever since Nuremberg there have been efforts to end the impunity of those guilty of international crimes in war/peace situations and national settings of oppressive rule. These efforts have taken several main forms: (1) the establishment by the UN of ad hoc tribunals with a specific mandate as with former Yugoslavia and Rwanda; (2) the establishment of a treaty based international institution, the International Criminal Court, with limited participation and disappointing results to date; (3) reliance on universal jurisdiction to activate national courts to act as agents on behalf of international society with respect to enforcing international criminal law; (4) the formation of civil society tribunals to assess criminal responsibility of

leaders in situations of moral outrage and global settings that render unavailable either inter-governmental or governmental procedures of accountability. (1)-(3) are projects of liberal legality, while (4) draws on more progressive jurisprudential energies outside the statist paradigm.

 

In the end, there is posed a choice. One possibility is go along with the one-eyed efforts of liberal legalists, most notably mainstream NGOs such as Human Rights Watch, silently acknowledging that the rule of law cannot be expected to function in relation to many serious international crimes due to the hierarchical and hegemonic structure of international society. The other possibility is to insist there can be no international justice so long as there exists a regime of ‘geopolitical impunity.’ In both instances, the contributions of civil society tribunals are needed, both for the sake of symbolic indictment and documentation of wrongdoing, and to acknowledge civil society as the moral and legal conscience of humanity. It must be admitted that only among liberal democracies are such self-critical initiatives of civil society tolerated, although such undertakings are derided and marginalized by mainstream media as the work of a ‘kangaroo court.’ Obama’s refusal to look back at the international crimes alleged against leading members of the Bush presidency is one awkward admission of the limits on legal accountability; such reasoning if generalized would invalidate any concern with all forms of past behavior, and hence any notion of accountability for all crimes. In such a dysutopia criminal law might exist, but by habit and expectation it would never be implemented, however severe the crime and dangerous the criminal. In the world we inhabit, without kangaroo courts international criminal law would continue with its limited writ, and there would no tribunals whatsoever to assess the criminality of the most powerful political actors on the world stage that menace many vulnerable peoples in the world.

 

 

 

 

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.

Palestinian Recourse to the International Criminal Court: The Time has Come

21 Jul

[Prefatory Note: “Palestine’s Dilemma: To Go or Not to Go to the International Criminal Court” was published on July 13, 2014 on the website of Middle East Eye, a site I strong recommend to all those with an interest in Middle East issues; this post represents a somewhat revised text, but within the framework of the original; the political plausibility of invoking the Inteernational Criminal Court to investigate allegations of criminality directed at Israel increases with each passing day.)

 

 

 

Ever since this latest Israeli major military operation against Gaza started on July 8, there have been frequent suggestions that Israel is guilty of war crimes, and that Palestine should do its best to activate the International Criminal Court (ICC) on its behalf. The evidence overwhelmingly supports basic Palestinian allegations—Israel is guilty either of aggression in violation of the UN Charter or is in flagrant violation of its obligations as the Occupying Power under the Geneva Convention to protect the civilian population of an Occupied People; Israel seems guilty of using excessive and disproportionate force against a defenseless society in the Gaza Strip; and Israel, among an array of other offenses, seems guilty of committing Crimes Against Humanity in the form of imposing an apartheid regime in the West Bank and through the transfer of population to an occupied territory as it has proceeded with its massive settlement project.

 

Considering this background of apparent Israeli criminality it would seem a no brainer for the Palestinian Authority to seek the help of the ICC in waging its struggle to win over world public opinion to their side. After all, the Palestinians are without military or diplomatic capabilities to oppose Israel, and it is on law, global solidarity, and their own creative and brave resistance that the Palestinian people must rest their hopes for eventually realizing their rights, particularly the right of self-determination and the right of return. Palestinian demonstrators in the West Bank are demanding that their leaders in the Palestinian Authority adhere to the Rome Statute, and become members of the ICC without further delay. It has become part of the message of Palestinian street politics that the Palestinians are being criminally victimized, and that the Palestinian Authority if it wants to retain the slightest shred of respect as representatives of the Palestinian people must join in this understanding of the Palestinian plight and stop ‘playing nice’ with Israeli authorities.

 

Such reasoning from a Palestinian perspective is reinforced by the May 8th letter sent by 17 respected human rights NGOs to President Mahmoud Abbas urging Palestine to become a member of the ICC, and act to end Israel’s impunity. This was not a grandstanding gesture dreamed up on the irresponsible political margins of liberal Western society. Among the signatories were such human rights stalwarts as Human Rights Watch, Amnesty International, Al Haq, and the International Commission of Jurists, entities known for their temporizing prudence in relation to the powers that be.

 

Adding further credence to the idea that the ICC option should be explored was the intense opposition by Israel and United States, ominously threatening the PA with dire consequences if it tried to join the ICC, much less to seek justice through its activating its investigative procedures. The American ambassador to the UN, Samantha Power, herself long ago prominent as a human rights advocate, revealed Washington’s nervous hand when she confessed that the ICC “is something that really poses a profound threat to Israel.” I am not sure that Power would like to live with the idea that because Israel is so vulnerable to mounting a legal challenge that its impunity must be upheld whatever the embarrassment to Washington of doing so. France and Germany have been more circumspect, saying absurdly that recourse to the ICC by Palestine should be avoided because it would disrupt ‘the final status negotiations,’ as if this pseudo-diplomacy was ever of any of value, a chimera if there ever was one, in the elusive quest for a just peace.

 

In a better world, the PA would not hesitate to invoke the authority of the ICC, but in the world as it is, the decision is not so simple. To begin with, is the question of access, which is limited to states. Back in 2009, the PA tried to adhere to the Rome Statute, which is the treaty governing the ICC, and was rebuffed by the prosecutor who turned the issue over to the Security Council, claiming a lack of authority to determine whether the PA represented a ‘state.’ Subsequently, on November 29, 2012 the UN General Assembly overwhelmingly recognized Palestine as ‘a nonmember observer state.’ Luis Moreno–Ocampo who had acted in 2009 for the ICC, and now speaking as the former prosecutor, asserted that in his opinion Palestine would now in view of the General Assembly action qualify as a state enjoying the option of becoming an ICC member. Normally, ICC jurisdiction is limited to crimes committed after the state becomes a member, but there is a provision that enables a declaration to be made accepting jurisdiction for crimes committed at any date in its territory so long as it is after the ICC itself was established in 2002.

 

Is this enough? Israel has never become a party to the Rome Statute setting up the ICC, and would certainly refuse to cooperate with a prosecutor who sought to investigate war crimes charges with the possible intention of prosecution. In this regard, recourse to ICC might appear to be futile as even if arrest warrants were to be issued by the court, as was done in relation to Qaddafi and his son in 2011, there would be no prospect that the accused Israeli political and military figures would be handed over, and without the presence of such defendants in the court at The Hague, a criminal trial cannot go forward. This illustrates a basic problem with the enforcement of international criminal law. It has been effective only against the losers in wars fought against the interests of the West and, to some extent, against those whose crimes are in countries located in sub-Saharan Africa. This biased form of international criminal law implementation has been the pattern since the first major effort was made after World War II at Nuremberg and Tokyo. Surviving German and Japanese leaders were prosecuted for their crimes while exempting the winners, despite Allied responsibility for the systematic bombing of civilian populations by way of strategic bombing and the American responsibility for dropping atomic bombs on the heavily populated cities of Hiroshima and Nagasaki.

 

Unfortunately, up to this time the ICC has not been able to get rid of this legacy of ‘victors’ justice,’ which has harmed its credibility and reputation. All ICC cases so far have involved accused from sub-Saharan African countries. The refusal of the ICC to investigate allegations of war crimes of the aggressors in relation the Iraq War of 2003 is a dramatic confirmation that leading states, especially the United States, possess a geopolitical veto over what the ICC can do. The ICC failure to investigate the crimes of Bush and Blair, as well as their entourage of complicit top officials, vividly shows the operations of double standards. Perhaps, the climate of opinion has evolved to the point where there would be an impulse to investigate the charges against Israel even if procedural obstacles preventing the case from being carried to completion. Any serious attempt to investigate the criminal accountability of Israeli political and military leaders would add legitimacy to the Palestinian struggle, and might have a positive spillover effect on the global solidarity movement and the intensifying BDS campaign.

 

Yet there are other roadblocks. First of all, the PA would definitely have to be prepared to deal with the wrath of Israel, undoubtedly supported by the United States and more blandly by several European countries. The push back could go in either of two directions: Israel formally annexing most or all of the West Bank, which it seems determined to do in any event, or more likely in the short run, withholding the transfer of funds needed by the PA to support its governmental operations. The U.S. Congress would be certain to follow the lead of Tel Aviv even if the Obama presidency might be more inclined to limit its opposition to a diplomatic slap on the PA wrist as it did recently in reacting to the June formation of the interim unity government, an important step toward reconciling Fatah and Hamas, and overcoming the fragmentation that has hampered Palestinian representation in international venues in recent years.

 

A second potential obstacle concerns the jurisdictional authority of the ICC, which extends to all war crimes committed on the territory of a treaty member, which means that leaders of Hamas would also likely be investigated and indicted for their reliance on indiscriminate rockets aimed in the direction of Israeli civilian targets.There is even speculation that given the politics of the ICC such that crimes alleged against Hamas might be exclusively pursued.

 

If we assume that these obstacles have been considered, and Palestine still wants to go ahead with efforts to activate the investigation of war crimes in Gaza, but also in the rest of occupied Palestine, what then? And assume further, that the ICC reacts responsibly, and gives the bulk of its attention to the allegations directed against Israel, the political actor that controls most aspects of the relationship. There are several major crimes against humanity enumerated in Articles 5-9 of the Rome Statute for which there exists abundant evidence as to make indictment and conviction of Israeli leaders all but inevitable if Palestine uses its privilege to activate an investigation and somehow is able to produce the defendants to face trial: reliance on excessive force, imposing an apartheid regime, collective punishment, population transfers in relations to settlements, maintenance of the separation wall in Palestine.

 

The underlying criminality of the recent aggression associated with Protective Edge (Israel’s name for its 2014 attack on Gaza) cannot be investigated at this point by the ICC, and this seriously limits its authority. It was only in 2010 that an amendment was adopted by the required 2/3 majority of the 122 treaty members on an agreed definition of aggression, but it will not become operative until 2017. In this respect, there is a big hole in the coverage of war crimes currently under the authority of the ICC.

 

Despite all these problems, recourse to the ICC remains a valuable trump card in the thin PA deck, and playing it might begin to change the balance of forces bearing on the conflict that has for decades now denied the Palestinian people their basic rights under international law. If this should happen, it would also be a great challenge to and opportunity for the ICC finally to override the geopolitical veto that has so far kept criminal accountability within the tight circle of ‘victors’ justice’ and hence only accorded the peoples of the world a very power-laden and biased experience of justice.

Armenian Grievances, Turkey, United States and 1915

26 Apr

 

 

            On April 10 by a vote of 12-5, with one abstention, the U.S. Senate Foreign Relations Committee gave its approval to Resolution 410 calling upon Turkey to acknowledge that the massacres of Armenians in 1915, and subsequently, constituted ‘genocide.’ It also asks President Obama to adjust American foreign policy by advocating an “equitable, constructive, stable and durable Armenian-Turkish relationship including full acknowledgement of ‘the Armenian genocide.’” So far, Obama since becoming president has refrained from uttering the g-word, although he has acknowledged the historical wrongs done to the Armenian people in the strongest possible language of condemnation.

 

            Such resolutions, although widely understood to be symbolic and recommendatory, reflect the efforts of the Armenian diaspora to raise awareness of the true nature of what the Armenians endured in 1915, and especially to induce the Turkish government to acknowledge these events as ‘genocide,’ or else suffer the reputational consequences of embracing what is being called ‘denialism.’ The resolution is the latest move to build a strong international consensus in support of the Armenian sense of grievance, and in so doing generate pressures on the accused Turkish government to admit the full enormity of the crimes against the Armenian people by admitting that it was genocide. Further there may also be present an intention to reinforce an appropriate apology, should it be forthcoming, with such tangible steps as restoring stolen property and possibly even establishing a reparations fund.

 

            The Armenian campaign also makes the wider claim that this process of redress for a horrendous historic grievance will also act as a deterrent to the commission in the future of similar crimes. The Senate resolution, however, make a minimal contribution to these goals. It is little more than a gesture of good will explicitly associated with commemorating the 99th anniversary of the 2015 events. As the April 24th day of commemoration has passed without the resolution being put on the action agenda of the full Senate prior to its Easter recess the resolution becomes consigned to the permanent twilight of a recommendation that is never even consummated by the relevant legislative body. Such an interplay of action and inaction manifests an underlying governmental ambivalence as to how this issue should be formally addressed by the United States at official levels of government. Why? Because the expression criticism of the Turkish government for the manner it is addressing the Armenian demands for redress inevitably engages American foreign policy.

 

            The Turkish Foreign Minister has already indicated his displeasure with such initiatives, insisting that respected historians should investigate the claim of genocide, that it is not appropriate for third countries to meddle in such matters, and that such an initiative, if it were formally endorsed at higher levels in Washington, will have a negative influence on the search for some kind of mutually acceptable resolution of these persisting tensions. The Turkish narrative on 1915, which has been softening its oppositional stance during the past decade, still argues that there were atrocities and suffering for Turks as well as Armenians, including a considerable number of Turkish casualties. Further, that the massacres of Armenians were less expressions of ethnic hatred than expressive of a reliance on excessive and undisciplined force to suppress an Armenian revolt against Ottoman rule at a time when Armenians were siding with invading Russian armies in the midst of World War I.

 

What is at Stake

 

            There are two important, intertwined concerns present. First, the whole issue of inter-temporal justice, how to address events that took place one hundred years ago in a manner that is as fair as possible to the victims yet takes account of the passage of time in assessing responsibility for such long past events. Secondly, the degree to which such an issue should be resolved by the parties themselves within the frame of the country where the events took place, or within the framework of the United Nations, rather than be addressed in the domestic politics of third countries whose governments are likely swayed by the presence or absence of aggrieved minorities.

 

            My impression is that the current leadership in Turkey is less seriously committed to upholding the Turkish narrative than in the past, but neither is it willing to subscribe to the Armenian narrative in some of its key elements, especially the insistence that what took place in 1915 must be described as genocide if it is to be properly acknowledged. It is not only the inflammatory nature of the word itself, but also a reasonable apprehension in Ankara of ‘the Pandora’s Box’ aspects of such a process, which once opened would likely move from the word genocide to such delicate embedded questions as reparations and the restoration of stolen property. Especially in recent months, the Turkish political scene has been rather chaotic, and undoubtedly there is a present reluctance by Turkish leaders to stir the hot embers of its nationalist political culture by acceding to the Armenian agenda relating to resolving the conflict. Yet with the 100th anniversary of 1915 around the corner, Turkey has its own strong incentives for being pro-active in developing a forthcoming posture in relation to Armenia and the Armenians.

 

            Against such a background, it seems important to ask what it is that the Armenian demand for the redress of historic grievances is seeking. Is it the belated satisfaction of having Turkey formally declare and admit that what took place in 1915 was ‘genocide,’ or is it more than this? Is there embedded this further demand that Turkey honor the memory of these events by some sort of annual observance, perhaps coupled with the establishment of an Armenian Genocide Museum? Or as signaled already that Turkey is expected to establish a fund and reparations procedures that will allow descendants of the victims to put forward economic claims for the harms endured? In effect, is the full range of Armenian expectations apparent at this stage or merely somewhat clouded? As the experience with the Holocaust suggests, there is no single event that can permanently shut the doors of history or dry the tears of extreme remorse. At most, acknowledgement, apology, and even tangible steps initiate a process that will never completely end, nor bring a satisfying closure to those who identify with the victims of such an unforgivable stream of past occurrences.

            As well, parallel to the genocidal and 1915 Armenian agenda, is a long festering inter-governmental dispute between Turkey and the sovereign state of Armenia over control of Nagorno-Karabakh region in the middle of Azerbaijan that has closed the border between the two countries since 1993. The Acting Armenian Foreign Minister, Edward Nabandian, added fuel to this diplomatic fire by welcoming the Senate resolution as “an important step” toward establishing “historical truth and prevention of crimes against humanity.” By so doing, the international dispute over Nagorno-Karabakh is joined at the hip to the historical controversy about the events of 1915. In an unusual way, the Armenian campaign is mainly conducted under the direction of the Armenian diaspora, and has only been given a secondary emphasis by Armenia itself, which has generally seemed more concerned about economic relations, and especially the territorial dispute in Azerbaijan, when dealing with its Turkish neighbor.

 

            What is one to do about a course of events that occurred under distinct national and international conditions expressive of different structures and legal norms that prevailed a century earlier? I was similarly challenged recently after giving a lecture on moral responsibility in international political life. The question was posed by a native American in the audience who angrily asked me why I had failed to advocate the restoration of the land seized in earlier centuries from the indigenous peoples who then inhabited North America, implying that my silence about such matters was an implicit endorsement of genocide. Such a reaction is understandable on the part of those who identify with a victimized community, but cannot be prescriptive in relation to 21st century realities. Certainly it was genocidal in willing that distinct ethnic groups become extinct or endure forcible dispossession, but there was at the time no legal prohibition on such behavior, and whatever moral interdiction existed was inconclusive, despite the manifest cruelty of the colonizing behavior. At this point, the clock cannot be rolled back to apply contemporary standards of justice to past wrongdoings, although ethical sensitivity and empathy is fully warranted. And what is totally unacceptable are any present efforts to rationalize or even glorify past barbarisms. For instance, the disgusting revisionist view of American slavery recently articulated by the right-wing libertarian rancher, Cliven Bundy, who absurdly asserts that slaves were probably happier than freed African Americans because they enjoyed the satisfactions of family life. As Charles Blow observes in an opinion piece, “Slaves dishonored in life must not have their memories disfigured by revisionist history.” {Blow, “A Rancher’s Romantic Revisionism,” NY Times, April 26, 2014]

 

            We must begin from where we are (but not end there), seeking as humane and transparent a response to these historic injustices as seems possible given both the intervening developments and the relevant balance of forces now and then. True, the anti-colonial movements of the last half of the 20th century did undo earlier injustices because of their capacity to mobilize effective movements of popular resistance. Indigenous people do not have this capacity, and are confined to what legal remedies are voluntarily conferred, and to what degree documenting the past creates sufficient public sympathy to support initiatives seeking some fractional measure of moral and material rectification.

 

            To some extent, accurate documentation is itself a form of historic redress, as was the case with the post-dictatorial ‘truth and reconciliation’ processes that tried in Latin American and South Africa to reconcile peace and justice during a transition to constitutional democracy, yet never brought anything approaching satisfaction or even closure to the victim communities that had earlier experienced unforgiveable criminality. We should also learne from Nelson Mandela’s willingness to overlook the structural injustices associated with economic and social apartheid in achieving the ‘political miracle’ of a peaceful dissolution of political apartheid. Also relevant are some of the late reflections of Edward Said on how to address the Palestine/Israel struggle given the realities that existed fifty years after the establishment of Israel. In effect, Said was of the opinion that despite the legally and morally unacceptable dispossession of the Palestinian people from their homes and homeland in 1948, it was now both futile and wrong to challenge any longer the existence of Israel. To resolve the conflict, in his view, required an acknowledgement of past injustices, especially the nakba, and mutually agreed arrangements that allowed the two peoples to live and co-exist in peace under conditions of equality, security, and dignity.

 

Was it Genocide?

 

            Is there a single historical truth that must be affirmed by all those of good will, and is it what the Armenian movement and U.S. Senate resolution contends? Can Turkey only express its good faith by subscribing literally to the main features of the Armenian narrative? Until it makes such a willingness clear it is unlikely to deflect the accusatory agenda of those demanding redress. In effect, is the litmus test of Turkish sincerity and remorse dependent upon a formal acknowledgement that what took place in 1915 was unequivocally ‘genocide’? I believe the historical truth is quite unequivocal from a factual and moral perspective, namely, that there was a systematic and deliberate effort to eliminate the Armenian minority from Turkey stemming from government orders and plans, and although occurring in the midst of war, political instability, and national upheaval, the ethnic violence was so one-sided and comprehensive as to undermine the credibility of the central contention of the Turkish narrative that World War I brought about an inter-ethnic experience of shared suffering replete with atrocities, but the blame cannot be exclusively attributed to Turkey, nor can the suffering be exclusively assigned to the Armenian community. This historical truth of predominant Turkish responsibility, however, is far more equivocal in relation to the further Armenian insistence that these genocidal events constitute the crime of genocide as embodied in the 1948 Genocide Convention, which came into force in 1951.

 

            Criminal law is not retroactive. Even the Nuremberg Judgment, which endorsed such innovations as ‘crimes against the peace’ and ‘crimes against humanity’ avoided any attempt to hold the Nazi leaders being prosecuted responsible for genocide despite the magnitude of the Holocaust and the abundance documented evidence of the deliberate and planned elimination of the Jewish people. What exactly, then, is the crime of ‘genocide’? Can it be said to pre-exist the entry into force of the Genocide Convention, considering the wording of its first article, but if so, why was genocide ignored in the prosecution of these Nazis? The wording of Article 1 of the Genocide Convention lends an aura of ambiguity to such queries: “The contracting parties confirm that genocide whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” (emphasis added). The word ‘confirm’ in Article 1 seems supportive of the view that the crime depicted in the treaty somehow preexisted the adoption of the Convention, and that only the usage of the word is retroactive. Yet the concept of genocide was not conceived to be a legal category until the crime was proposed in 1944 by Raphael Lemkin. I would suppose that had Lemkin persuaded the political community to adopt the Genocide Convention a decade earlier the Nuremberg indictments would have included the crime, and possibly the decision would have given guidance as to whether the crime came into being with treaty or antedated its ratification.

 

            Controversy is present as soon as the idea is to compel Turkey to admit that the massacres of 1915 are massive commissions of the crime of genocide, and as such, have an array of legal implications. More flexible, by far, would be a process of inquiry by an international commission of independent experts, which included well respected international lawyers, that would likely conclude that the events in question were clearly ‘genocidal’ in character, and if they had occurred after the Genocide Convention was adopted in 1950, they would constitute ‘genocide.’

            The World Court in responding to the Bosnia complaint alleging Serbian genocide concluded that a high evidentiary bar exists to establish the crime of genocide even with the benefit of the Convention, but it did find that the 1995 massacre in Srebrenica was ‘genocide.’ The majority decision of the highest judicial body in the UN System indirectly highlights the crucial differences between the crime of genocide and the psycho/political/sociological realities of genocidal behavior.

 

Is U.S. Government Involvement Constructive?

 

            The question of whether the United States should be involved in shaping international public opinion is less significant than the substantive dispute about the events, but far from trivial. The questionable political opportunism that connects the responsiveness of Congress to a well-organized Armenian lobby in the United States does seem to make reasonable the official Turkish response that it is never helpful for a foreign government to take the anti-government side in an unresolved controversy of this sort. It is bound to harm bilateral relations between the two countries. In effect, the mutual respect for sovereignty requires governments to refrain from such meddling under almost all circumstances. One can easily imagine the furor in the United States if the Turkish Parliament passed a resolution insisting that Washington finally acknowledge that native American tribal communities were victims of genocide or that descendants of slaves are entitled to reparations. However sincere and morally plausible, in a world where legality and legitimacy are almost always matters for territorial sovereigns to resolve, the foreign source of such sentiments are deeply resented, and are more likely to produce an angry backlash than to induce an accommodating retreat.

 

Finding a Solution

            From the Armenian perspective seeking redress, is this show of American governmental support helpful or not? I suspect that a more discreet effort would produce less defensiveness on the Turkish side, and more willingness to seek a mutually satisfactory outcome. Mobilizing the American Congress and French legislative bodies is somewhat similar to looking beneath the lamppost for a watch dropped in the darkness of the night. Admittedly, if the purpose is to raise awareness and mobilize support from the Armenians such a public relations campaign may be effective even if it stiffens Turkish resistance in the short run.

             A second important concern is how to address the genocide issue given the passage of time, and the interplay of preoccupations on both sides. My preference would be for both Turkish and Armenian representative to agree that it is permissible to use the word genocide with reference to the Armenian ordeal of 1915, but with a shared understanding that the use of the word in relation to the massacres of Armenians is without legal effect. The concept of genocide is inherently ambiguous as it simultaneously puts forward an empirical description of a set of events that offers a political, psychological, sociological, and ethical evaluation of those events, while also advancing the possible legal evaluation of such events as constituting the crime of genocide, which would also mean sustaining a heavy burden of proof as required to establish specific intent, which is a vital element of the crime.

 

            What does not help internationally, it would seem, is posturing by the U.S. Congress. It will probably necessitate some quiet fence-mending by the Obama presidency to maintain good Turkish-American relations, a key strategic priority. At the same time, the Turkish government should not sit still. It should do more than angrily push aside this American initiative and the related Armenian campaign, and show a more forthcoming attitude toward finding common ground to heal gaping Armenian wounds that remain open after a century. Mounting pressure due to the worldwide Armenia is definitely raising the level of awareness, but only wisdom, empathy, and good will on both sides can overcome such an embittered past. In some respects, there is something tragic about this standoff between those who have reason to want the past to be a matter of historical reflection and those who insist that the past is forever present.

 

            The Turkish government has reiterated its offer to establish a joint commission composed of Armenian, Turkish and international historians to establish an authoritative narrative. Besides the likelihood that existing disagreements would be reproduced in the working of this type of commission, the idea that core concern is ‘historical’ misses a main point that such a traumatic series of events need to be interpreted from multiple perspectives, including that in this instance of international criminal law. Establishing the factual reality, which strongly favors Armenian empirical claims, does not resolve the question of what would qualify as an appropriate acknowledgement by the Turkish government, nor does it address the lurking concern as to whether acknowledgement is sufficient, and if not, what further steps must be taken by Turkey if it is to satisfy the Armenian campaign.