Tag Archives: international law

Transforming World Order?

20 May

 

[Prefatory Note:  This post is my review of an important critical study of the deplorable conditions of law and politics in the current global setting. The author grounds his diagnosis and proposals on a philosophical interpretation of this subject-matter, but the radical vision although appealing gives little attention to how such a vision can become a political project, and so this learned text creates an impression of apolitical utopianism. This review will be shortly published in the American Journal of International Law.]

 

 

 

TRANSFORMING WORLD ORDER?

 

Eutopia: New Philosophy and New Law for a Troubled World.By Philip Allott. Cheltenham: Edward Elgar, 2016, Pp. xi, 368. Index. $135.

 

Grasping Allott’s Ambitious Undertaking

 

It is not by chance that Philip Allott, professor emeritus of international public law and fellow of Trinity College, University of Cambridge, UK,offers unusual guidance to readers in the opening sentence of the Preface to Eutopia: “The reader may want to read this book more than once, and to read it with unusual care” (p. vi). If anything, this advice is understated. Allott has written a learned, conceptually intense, and wildly ambitious book that demands the most dedicated attention taxing the perseverance of even the most diligent of readers. Allott challenges us on every page, really on each of its paragraphs given a systematic inflection by being numbered as if elements of a mathematical proof. Putting the bar of comprehension so high raises preliminary awkward questions—is the immense burden imposed on the reader sufficiently rewarded by the contribution that Allott makes to our understanding of the human condition? There is a second subsidiary question—is Allott’s distinctive methodology an effective and necessary means by which to raise and resolve such fundamental issues? and for what audience is this undertaking intended? I will return to these matters at the end of my attempt to assess Allott’s undertaking, which by any measure is extraordinary. It is nothing less than a philosophically coherent depiction of a comprehensive and desirable future for humanity designed to do nothing less than achieve the totality of human potentiality if properly enacted.

Allott attributes his sense of profound concern with the way the world was organized to his experience decades ago as a legal advisor in the British Foreign Office (1960–1973). It was there that he became aware of “all significant aspects of international government” leading him to the “settled moral conviction—that the nature of so-called international relations must be changed fundamentally and, with it, the nature of international law.”[1]Although the argument put forward is expressed abstractly, without civilizational specificity or very much by way of policy critique and example, there is no doubt that Allott is deeply offended and worried by his various encounters with political realism while serving the British crown. In a strong passage Allott vigorously rejects the major premise of the nuclear age, which he decries as “the development of the grotesquely named strategic nuclear weapons, as if mass murder and mass destruction could be strategies adopted by rational human beings.”[2]Such strong language suggests Allott’s repudiation of conventional wisdom in the world that he inhabits, which stands in stark contrast to the world that he believes can be brought into being by new thinking responsive to the overriding moral and political imperative of seeking a new world order in which all human beings can flourish, and find happiness, as well as address the formidable challenges of global scope that threaten the survival of the human species and much of its natural habitat.[3]

To begin with, it is important to realize that Eutopiais a sequel to an equally challenging and ambitious earlier work, Eunomia: New Order for a New World, published in 1990.[4]In a long Preface written especially for the 2001 publication of a paperback version, Allott gives readers important clues to what led his thinking in such radical directions, including his disdainful treatment of incremental global reform steps advocated by liberal internationalists that he believes irrelevant, given the magnitude of the challenges facing humanity. Allott is convinced that only a revolutionaryprocess can generate the capacity needed to enable humanity to produce a positive future for itself. Clarifying this orientation, Allott writes,

 

We are people with a permanent revolutionary possibility, the power to make a revolution, not in the streets but in the mind. And the long journey of revolutionary change begins with a single revolutionary step. We can, if we wish, choose the human future. We, the people, can say what the human future will be, and what it will not be.[5]

 

This appears to be affirming a radical form of political agency vested in the people, that is, change from below, although this is never asserted in this form or as an ingredient of democracy or transformative populism.

This crucial matter of orientation and perspective, with its Hegelian confidence in the power of ideas to transform and regulate behavior, leads Allott to distance himself from those who insist that “practicality” in the domain of politics is the only responsible approach to the advocacy of change and reform. Allott rejects the mainstream consensus that constrains debate within the confines of feasibility as interpreted by the powers that be: “To disprove a claim that a set of ideas is merely Utopian, it is useful simply to recall that those ideas contain a future which is not only possible but also necessary, and that the human future is always an imaginary potentiality until it becomes a present actuality.”[6]As Allott puts it elsewhere, “We make the human world, including human institutions, through the power of the human mind. What we have made by thinking we can make new by new thinking.”[7]This theme pervades Allott’s entire undertaking, but such an unconditional statement of benign mental potency seems to be oblivious to the darker forces of the unconscious that drive human behavior in destructive and self-destructive directions. The dominance of these darker forces has, in my view, entrapped the political imagination in an iron cage, accounting for the widespread feelings of despair on the part of those who confront the future with eyes wide open.[8]Allott is fully aware of this, shares this foreboding, but offers us the redemptive possibility of this mental revolution.

Allott writes in the Preface to his present book,

 

Since Eunomia was published, the globalising of human social and mental existence has proceeded at a pace and in ways that could not have been predicted then, and with ever more troubling consequences, and ever more serious threats and challenges. Chaotic globalizing is even negating humanity’s tentative unity-in-diversity. (P. viii)

 

We should appreciate that Eunomiaand Eutopiaasserted this dramatic diagnosis well before Donald Trump’s “America First” approach has aggravated the world order situation by a series of dramatic withdrawals of America’s engagement in cooperative forms of globalization with respect to such crucial policy contexts as climate change, international trade, global migration, and arms control (currently most pointedly, the decertification of the 2015 5+1 Agreement on Iran’s Nuclear Program). I think it is safe to assume that Allott’s worldview as of 2018 would move closer to moral panic, given Trump’s intensifications of “chaotic globalizing.” In the Foreword to Eutopia,Allott contrasts his earlier effort as one of meeting a “global socialchallenge” with the more momentous current undertaking in the book under review of overcoming “a universal humanchallenge” (p. ix). Putting this progression of perspective in relation to knowledge systems, Allott has shifted his outlook from that of social and jurisprudential engineer to that of global anthropologist or planetary ethnographer.

In Allott’s work the reader encounters a perplexing blend of pessimism about the existing human condition and of optimism about the limitless potentiality of the human species. In stirring words, “We are a species with unlimited potentiality that is failing in crucial aspects of its self-evolving and self-perfecting” (p. ix). What gives direction to Allott’s radical way of thinking is a post-Enlightenment belief in thought, reason, and knowledge as guiding action, best exemplified by the great philosophical traditions in the West that have been appraising the human condition for centuries. In this spirit he laments, as he rejects, the contemporary Anglo-American philosophic turn against its own tradition, uselessly shifting its energies to arcane language puzzles and esoteric logical quirks while abandoning reflections on and prescriptions for the desirable unfolding of humanity in light of its surrounding human circumstances.

In a short Afterword, Allott makes plain his oppositional stance to the hegemony of science and engineering modes of thought in the public domain where governments act and citizens form their policy preferences. Allott categorizes his own work as exhibited in a private domain and premised on what he calls “humanist thinking” (p. 341), that is shaped by values, wisdom, and erudition. At the same time, he asserts a positive role for such thought against the grain, needed in his view, to enable “the human mind . . . to imagine a better human future” and to activate “the human will” so as to “mak[e] a better future happen” (id.). He follows this with the haunting exposure of his own foreboding about the human future, ending the book with these words: “For how much longer?” (id.). As a reader I would say that the main message left behind here by Allott is the urgency associated with a revival of humanist thinking as a necessary precondition for meeting the challenges of our historical circumstance as a profoundly threatened species.

 

Sources of Inspiration

 

Allott is forthright about acknowledging three inspirational points of departure for Eutopia. Allott roots his extraordinary exploration of prospects for radical change in the utopian tradition of Thomas More who “enabled his readers to see their own social life with new eyes, and to judge it, and to imagine other ways of life” (p. vii). In effect, this kind of utopianism creatively provides a stimulus for critical reflections on the world as it is, as well as unleashing imaginative efforts to project on the screen of human expectations more satisfying and uplifting alternatives as potentially attainable.

Francis Bacon is his second inspirational spark, by way of his foundational anticipation of the degree to which scientific and technological innovation—in effect, “revolutions”—would open the doors of human understanding in dramatic new ways that led in the past to drastic forms of societal restructuring. Bacon “saw that a revolution in our understanding of the human mind could produce every other kind of revolution. He saw that the human mind can transform the human world. We are his beneficiaries to this day” (pp. vii–viii). Allott definitely follows Bacon in believing that altering authoritative templates of human subjectivity has the potential for unleashing transformative forces, and given his severe indictment of how human coexistence is currently (mis)managed on all levels of social interactions, he leaves the reader with this urgent sense of “revolution or doom.” The French philosopher, Jacques Derrida, raises comparable questions, yet without any prospect of revolutionary closure with a focus on what “living together well” might mean and what “democracy to come” could achieve.[9]Allott comes close to Derrida’s approach in a chapter entitled “New Society: Living the Good Life Together.”

Allott’s undertaking bears comparison with the World Order Models Project (WOMP), which proceeded from a comparable diagnosis to prescribe a series of “relevant utopias” or “preferred worlds” as necessary, desirable, and achievable.[10]It grounds its hope for the human future on the emergence of what might be called ethical universality(shared values associated with minimizing collective violence, social and economic well-being, humane governance, and ecological sustainability) that could foster collaborative undertakings of sufficient scope and depth.[11]By so doing it would become possible to overcome both the political fragmentation of state-centric world order and the civilizational diversity of post-colonial identity patterns. Such a relevant utopia depends more humbly than Allott’s revolution in the mind on a retuning of the rational mind and the sharpening of normative sensibilities to take account of the globalizing pressures being exerted by nuclearism, neoliberalism, and digitized networks.

The third source of inspiration affirmed by Allott is the canon of Western philosophy as a response to “a miasma of nihilism and despair, unable to comprehend or to redeem terrible real-world events that the human mind itself had caused” (p. ix). Only by turning to philosophizing in the classic tradition can there be any hope for “the necessary and urgent revolution in the human mind” (p. ix). Allott invests philosophical inquiry with an incredible capacity of human empowerment: “Without philosophy, we have little or no control over the making and the remaking of a better human future. Without philosophy, now and hereafter, the human species may not survive” (p. ix). He underscores this rather dismaying observation with the assertion that Eutopiais designed with no less an objective than bringing “the great and ancient existential debate back to life, before it is too late . . . the permanent possibility of making the human world into ‘a place of happiness’” (p. ix). I wonder whether this is a proper reading of the philosophic canon in which the warnings and admonitions of St. Augustine, Machiavelli, Nietzsche, and Schopenhauer unaccompanied by the view that history can be reshaped by a revolution in the precincts of the human mind. At the same time each of these thinkers, except Schopenhauer, did at least endorse a vision of a better human future, but not as an achievement of the creativity and normative capabilities of the rational mind.

 

Allott’s Distinctive Methodology

 

It should be understood that unlike Eunomia, which drew on Allott’s professional experience and academic specialty (international public law), Eutopia is a remarkable achievement of amateurship, that is, an immersion in philosophic thought for which the author had neither evident training nor prior publications, but great love and intimacy. In this regard it is informed by the philosophic canon of the West, especially as developed by British philosophers, but with its own rather peculiar and somewhat questionable methodology. In clusters of chapters entitled “The Human Condition,” “Human Power,” and “Human Will,” Allott sets forth the grounds and components of his belief in the potency of the human mind. Each chapter is, in turn, divided in two parts, with the first part consisting of numbered paragraphs containing in logical sequence, fundamental elements of the human mind such as memory, imagination, knowledge, and emotions. The second part of each chapter consists of a series of quotes from a wide spectrum of thinkers, mainly philosophers, from Plato and Aristotle to Marx, Lenin, and Karl Popper, and many, many others. Despite impressions of inclusiveness, there are some surprising names missing. For instance, for me none of three twentieth century philosophers who shed the most light on the human condition are even mentioned once: Hannah Arendt, Jacques Derrida, and Martin Heidegger. As well, non-Western thought is touched on very lightly both in the text and the complement of philosophical quotations: The Buddha and Gandhi are never mentioned, Confucius once.

I have no doubt that Allott is a learned student of philosophy who has developed more or less on his own, without specific debts in the course of his argument to earlier thinkers, a coherent cartography of the human mind as possessed of great agency. At the same time, this dualist methodology of putting the argument one place and the philosophic sources in an entirely separate place without any explicit effort to establish a linkage between the two seems questionable to me, and neither rationalized nor explained by Allott. Either the section of quotations is to be read as conveying somewhat randomly the spirit of philosophical conjecture with regard to a theme covered by the argumentative text, or the reader is left to do the immense work of finding for herself connections between an individual quoted passage and the argument of the text, which I can report in my case to have been a daunting, time-consuming, and not very rewarding, challenge.

There are other issues raised by this methodology. Allott does not explain his reasons for inclusion and exclusion. Also, his conception of philosophy is very capacious, extending to literary figures (Shakespeare, Tolstoy, Goethe, and T.S. Eliot), social and natural scientists (Durkheim, Max Weber, Harold Lasswell, and E.O. Wilson), and even cultural and political critics (Marshall McLuhan, Ruskin, and Thomas Paine). If each of these quotes was tied to passages in Allott’s text even as footnotes, or given a distinct commentary that explicated their linkage, I would likely applaud the approach. Left alone as distinct items to be read in sequence following the chapter text, seems either without redeeming value or requiring too much of an effort for the reward. In Eunomiawhere Allott is on much firmer ground in terms of professional competence, the methodology is more conventional, and although demanding because of the abstractness and systematic quality of the thought, and more effective in conveying a distinct critique and way forward. In this earlier book Allott’s chapters contain only the numbered paragraphs of argument with no second part that gives sources.

 

The Essential Role of Law

 

Allott’s vision is very much influenced by his appreciation of law as a fundamental ordering device with respect to all that transpires in the universe. In this regard “the laws of nature” and “scientific laws” are seen as achieving results that human-created law can only aspire to produce, especially with respect to international law. What underlies this emphasis on law is the fact that all activities in the cosmos exhibit for Allott a tendency to exhibit orderas a fundamental reaction to the alternative of chaos.In Allott’s view order is the result of law governed behavior.

In EunomiaAllott makes clear that the two modern theorists of international law who make contributions along the lines of a systemic reworking of law as constitutive of world order are Hans Kelsen and Myres McDougal.[12]What they have done to merit this affirmation is “to elevate international law on to a plane appropriate to a true legal system.” In Kelsen’s case, it involved detaching law from its social and political infrastructure so as to create an autonomous legal order of encompassing generality, with international law a derivative subsystem. While in McDougal’s case, the effort was almost opposite to that of Kelsen, integrating and connecting international law with the underlying social, economic, and political processes, and disciplining its operations by reference to what Allott calls “value-processing,” a phenomenon that is present in all forms of social activity.[13]

Allott calls McDougal “ahead of his time,” especially by undertaking the prophetic task of “preaching a new dispensation to a recalcitrant group of human beings who were almost beyond redemption, the participants in international relations” (p. IX). It is clear from a broader exposure to Allott’s thinking that he is referring to the hard power realists who exclude values from international relations, and thus marginalize international law, and whose operating procedures can perhaps be most easily comprehended by reference to Henry Kissinger’s theory and practice of international relations.[14]Allott concludes that neither Kelson nor McDougal reshaped the manner with which international relations, with its race to the bottom of human endeavor, was being conducted.

Nevertheless, Allott regards the challenge confronting him is to integrate a philosophically coherent and grounded legal order in the manner of Kelsen with a normatively driven legal order geared to the most general features of international life in the spirit of McDougal, and considered his earlier book as having such a purpose by proposing “a general theory of society and law which is potentially universal” (p. IX). He faults McDougal as rooting his approach too parochially in the distinctively Western democratic experience to be universally acceptable. These ideas about law are carried forward in Eutopia, but under the North Star of fear and trembling about the human future.

For Allott, “[l]aw is the primary social system serving the survival and flourishing of the human species” (p. 210). In a somewhat grandiose assertion he writes, “[b]y means of the idea of law we human being have taken power over everything, not least power over ourselves” (p. 209). In this era of seeming powerlessness against the pushbacks of nature or the eruption of irrational politics among publics and leaders, it becomes difficult to comprehend such celebrations of the role of law in regulating the human condition. So as to align lawmaking and rule of law with the present, Allott insists “[i]t is time for human beings to become a kind of philosopher” (p. 210). Presumably, such a sentiment should be read as his kind of philosopher who would tie the rule of law, constitutionalism, and international law to human survival and flourishing, the normative goals affirmed throughout as vital within our historical situation.

In a comprehensive chapter on law as a generic dimension of the human condition Allott gives his ideas about the functioning of law and order, as well as law and custom, law and power, law as a system, and law and value (pp. 210–31). With respect to international law discussed as a distinct system, “a primary purpose of the present volume,” Allott argues that it is necessary to promote “a fundamental reconstituting of international society, including the reimagining and remaking of the international legal system,” giving special attention to the relations between law and power (p. 215).

After reviewing the existing theories of law as applied to the international situation Allott is convinced that international law must be fundamentally changed so that it can serve the goals of human survival and flourishing, but how, and by whom? Allott calls for new law that is based on the primacy of these goals, reaffirming human agency in controlling the role of law, contending that we are the makers of law as “the supreme judges of the common good” (p. 232). In some tautological sense, yes, but as an existential matter of politics, psychology, history, and social structure, I would say, no to such an outpouring of anthropomorphic enthusiasm.

 

Conclusion

 

For anyone seeking a comprehensive world order vision of what exists and what might be, this book is definitely worth the effort, even if the result, as in my case, is to feel that its value is mainly the focus on the centrality of the law phenomenon rather than on depicting a plausible path to a desirable human future. I find Allott’s call for a revolution of the human mind as itself the means for asserting benign control over the human condition now so imperiled to be “whistling in the dark.” The structures of power and wealth are entrenched in support of the worst features of “lawlessness.” We are in the midst of a regressive era in which we, as a species, are losing the ecological, geopolitical, and ethical struggles for a benign human future.

There has been much discussion in scientific circles as to whether it is appropriate to label our age as that of the “anthropocene,” given the impact that human activity has on the sustainability of life on planet earth. Allott converts this acknowledgement into a hyperbolic version of anthropomorphism in which the human mind is crowned as supreme ruler over all that transpires on earth. I find this points our worried sensibilities in the wrong direction.

Although agreeing with Allott on the dangers of state-centricism and political realism, as well as on the goals of species survival and flourishing, I disagree on the dynamics of collective awakening. I would urge “humility” and “compassion” as the guiding values in any constructive reappropriation of the human future motivated by the desire to ensure survival and promote goals of living together happily as a species.

In the end, we can thank Allott for providing us with a vision that is rich in conceptual content and moral energy, a philosophic manual for the job that needs to be done. But even after a close reading, the roadmap is missing, and we are left with the imperative of providing one as a civilizational priority. We can agree with Allott that a new international law that is guided by human well-being rather than the old international law catering to the power/wealth lusts of powerful states is essential, but to identify such a need is far removed from its satisfaction.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1]Philip Allot, Eunomia: New Order for a New World, at xli (2001).

[2]Id.at lii.

[3]Allott sets forth his purpose in writingEutopiaalong these lines at several points (pp. 215, 260, 269, 296, 312–13).

[4]Indeed, it is not possible to ignore the first book in approaching the even more elaborate framework of Eutopia.

[5]Allott, Eunomia,supra note 1, at xxxiv.

[6]Id.at xxvii.

[7]Id.

[8]My formulation of the human non-responsiveness to these darker forces that currently pose such formidable challenges of global scope is set forth in an essay, Richard Falk, Does the Human Species Wish to Survive?,inRichard Falk, Power Shift: On the New Global Order253–62 (2016).

[9]See discussions of Derrida’s focus on living together in Living Together: Jacques Derrida’s Communities of Violence and Peace(Elisabeth Weber ed., 2012); also Fred Dallmayr, Democracy to Come: Politics as Relational Praxis(2017).

[10]SeeSaul H. Mendlovitz, On the Creation of a Just World Order: Preferred Worlds for the 1990s(1975);Richard Falk, A Study of Future Worlds(1975).

[11]SeeHans Küng. A Global Ethic for a Global Politics and Economics(1998).

[12]SeeAllott, Eunomia, supranote 1, at xlvii.

[13]All references in this and succeeding paragraphs are to id.at xlviii.

[14]SeeHenry Kissinger, World Order(2014). For critique, see Richard Falk, Henry Kissinger: Hero of Our Time, 40 Millennium155–64 (July 6, 2015).

Advertisements

Attacking Syria

18 Apr

Attacking Syria

 

[Prefatory Note: This post is an assessment of the recent Syrian missile attack by the armed forces of the U.S., UK, and France from a variety of perspectives. It is a modified and expanded version of a text earlier published in The Wire  (Delhi) and Il Manifesto(Rome). I intend to write two further posts suggested by the controversy generated by the airstrikes of April 14, 2018 against sites associated with Syria’s alleged chemical weapons capabilities. These strikes raise questions of international law, domestic constitutional authorization for international uses of force, strategic logic, and moral imperatives and rationalizations. Each of these issues is capable of multiple interpretations raising further concerns about the appropriate location of the authority to decide given the nature of world order in the 21stcentury.]

 

 

Preliminary Reflections

 

At this stage it seems reasonable to wonder whether Syria was attacked because it didn’tuse chemical weapons rather than because it did. That may seem strange until we remember rather weighty suspicions surrounding the main accusers, especially the White Helmets with their long standing links to the U.S. Government, and past skepticism about their inflammatory accusations that critics claim reflect fabricated evidence conveniently available at crisis moments.

 

A second irreverent puzzle is whether the dominant motive for the attack was not really about what was happening in Syria, but rather what was nothappening in the domestic politics of the attacking countries. Every student of world politics knows that when the leadership of strong states feel stressed or cornered, they look outside their borders for enemies to blame and slay, counting on transcendent feelings of national pride and patriotic unity associated with international displays of military prowess to distract the discontented folks at home, at least for awhile. All three leaders of the attacking coalition were beset by rather severe tremors of domestic discontent, making attractive the occasion for a cheap shot at Syria at the expense of international law and the UN, just to strike a responsive populist chord with their own citizenry—above all, to show the world that the West remains willing and able to strike violently at Islamic countries without fearing retaliation. Beleaguered Trump, unpopular Macron, and post-Brexit May all have low approval ratings among their own voters, and seem in free fall as leaders making them particularly dangerous internationally.

 

Of course, this last point requires clarification, and some qualification to explain the strictly limited nature of the military strike. Although the attackers wanted to claim the high moral ground as defenders of civilized limits on military actions in wartime, itself an oxymoron, they wanted even more crucially (and sensibly) to avoid escalation, carrying risks of a dangerous military encounter with Russia, and possibly Iran. As Syrian pro-interventionists have angrily pointed out in their disappointment, the attack was more in the nature of a gesture than a credible effort to influence the future behavior of the Bashar al-Assad government, much less tip the balance in the Syrian struggle against the government. As such, it strengthens the argument of those who interpret the attack as more about domestic crises of legitimacy unfolding in these illiberal democraciesthan it is about any reshaping of the Syrian ordeal, or a commitment to upholding the Chemical Weapons Convention.

 

A third line of interpretation insisting that what was said in public by the leaders and representatives of the three attacking Western powers was not the real reason that the attack was undertaken. In this optic, it is pressure from Israel to mute President Trump’s feared slide toward disengagement from Syria as a prelude to a wider strategic withdrawal from the Middle East as a whole, a region that Trump in his speech justifying the attack calls ‘troubled’ beyond the capacity of the United States to fix. At least temporarily, from Israel’s point of view, the air strikes sent a signal to Moscow that the United States was not ready to accept Syria becoming a geopolitical pawn of Russia and Iran. Supposedly, the Netanyahu entourage, although pleased by the Jerusalem move, the challenge to the Iran Nuclear Agreement, and silence about the IDF lethal responses to the Gaza Great Return March, have new worries that when it comes to regional belligerence and overall military engagement, Trump will be no more help than Obama, who quite irrationally became their nightmare American president.

 

And if that is not enough to ponder, consider that Iraq was savagely attacked in 2003 by a U.S./UK coalition under similar circumstances, that is, without either an international law justification or authorization by the UN Security Council, the only two ways that international force can be lawfully employed, and even then only as a last resort after sanctions and diplomatic avenues have been tried and failed. It turned out that the political rationale for recourse to aggressive war against Iraq, its alleged possession of weapons of mass destruction was totally false, either building the case for war on the elaborately orchestrated presentation of false evidence or more generously, as awkwardly victimized by a hugely embarrassing intelligence lapse.

 

To be fair, this Syrian military caper could have turned out far worse from the perspective of world peace and regional security. The 105 missile attack war over in 3 minutes, no civilian casualties have been reported, and thankfully, any challenge to the Russian and Iranian military presence in Syria was deliberately excluded from the targeting plan, or to the Syrian government, thus taking precautions to avoidT setting in motion the rightly feared retaliation and escalation cycle. This was not an idle worry. More than at any time since the end of the Cold War sober concerns abounded preceding the attack that a clash of political wills or an accidental targeting mistake could cause geopolitical stumbles culminating in World War III.

 

Historically minded observers pointed out alarming parallels with the confusions and exaggerated responses that led directly to the prolonged horror of World War I. The relevant restraint of the April 14thmissile attacks seems to be the work of the Pentagon, and certainly not the hawk-infested White House. Military planners designed the attack to minimize risks of escalation, and possibly even reaching behind the scenes an undisclosed negotiated understanding with the Russians. In effect, Trump’s red line on chemical weapons was supposedly defended, and redrawn at the UN as a warning to Damascus, but as suggested above this was the public face of the attack, not its principal motivations, which remain unacknowledged.

 

 

Doubting the Facts

 

Yet can we be sure at this stage that at least the factual basis of this aggressive move accurately portrayed Syria as having launched a lethal chlorine and likely nerve gas attack on the people of Douma, killing at least 40? On the basis of available evidence, the facts have not yet been established beyond reasonable doubt. We have been fooled too often in the past by the confident claims of the intelligence services working for these same countries that sent this last wave of missiles to Syria. International maneuvering for instant support of a punitive response to Douma seemed a rush to judgment amid an array of strident, yet credible, voices of doubt, including from UN sources. The most cynical observers are suggesting that the timing of the attack, if not its real purpose other than the vindication of Trump’s red line, is to destroy evidence that might incriminate others than the Syrian government as the responsible party. Such suspicions are fueled by the refusal to wait until the factual claims could be validated. As matters stand, the airstrike seem hastened to make sure that the respected Organization for the Prohibition of Chemical Weapons (OPCW), when finally carrying out its fact finding mission would have nothing to find.

 

To allay reactions that these are ideologically driven criticisms, it is notable that the Wall Street Journal, never a voice for peace and moderation, put forward its view that it was not “clear who carried out the attack” on Douma, a view shared by several mainstream media outlets including the Associated Press. Blaming Syria, much less attacking, was definitely premature, and quite possibly altogether false, undermining the essential factual foundation of the coalition claim without even reaching the formidable doubts associated with issues of the unlawfulness and illegitimacy of an international use of non-defensive force without authorization by the United Nations.

 

 

Remnants of Colonialism

 

Less noticed, but starkly relevant, is the intriguing reality that the identity of the three states responsible for this aggressive act share strong colonialist credentials that expose the deep roots of the turmoil afflicting in different ways the entire Middle East. It is relevant to recall that it was British and French colonial ambitions in 1916 that established the blueprint for carving up the collapsed Ottoman Empire, imposing artificial political communities with borders reflecting European priorities not natural affinities, and taking no account of the preferences of the resident population. This colonial plot foiled Woodrow Wilson’s more positive proposal to implement self-determination based on affinities of ethnicity, tradition, and religion of those formerly living under Ottoman rule.

 

The United States fully supplanted this colonial duopoly as the colonial sun was setting around the world, especially after the Europeans faltered in the 1956 Suez Crisis. At the same time the U.S. quickly made its own heavy footprint known, feared, and resented throughout the region with an updated imperial agenda featuring Soviet containment, oil geopolitics, and untethered support for Israel. Even earlier in 1953 the Truman Doctrine and CIA support for the overthrow of the democratically elected and nationalist government of Mohammad Mosaddegh disclosed the extent of U.S. involvement in the region.  These strategic priorities were later supplemented by worries after 1979 about the spread of Islam and fears after 2001 that nuclear weaponry could fall into the wrong political hands. After a century of exploitation, intervention, and betrayal by the West, it should come as no surprise that anti-Western extremist movements have surfaced throughout the Arab World, and engendered some populist sympathies despite their barbaric tactics.

 

 

 

Violating International Law, Undermining the UN

 

It is helpful to recall the Kosovo War (1999) and the Libyan War (2011), both managed as NATO operations carried out in defiance of international law and the UN Charter. Because of an anticipated Russian veto, NATO, with strong regional backing in Europe launched a punishing air attack that drove Serbia out of Kosovo. Despite the presence of a strong case for humanitarian intervention within the Kosovo context it set a dangerous precedent, which advocates of a regime-changing intervention in Iraq found convenient to invoke a few years later. In effect the U.S. found itself backed into insisting on an absurd position, to the effect, that the veto should be respected without any questioning when the West uses it, most arbitrarily and frequently to protect Israel from much more trivial, yet justifiable, challenges than what this missile attack on the basic sovereign rights of the internationally legitimate government of Syria signifies.

 

American diplomats do not try to justify, or even explain, their inconsistent attitudes toward the authority of the UN veto, despite the starkness of the contradiction. Perhaps, it is a textbook example of what psychologists call cognitive dissonance. More accessibly, it is a prime instance of a continued reliance on the benefits of American exceptionalism. As the self-anointed guarantor of virtue and perpetual innocence in world politics the United States is not bound by the rules and standards by which its leaders judge the conduct of others, especially adversaries.

 

As a personal aside, with some apologies owed, I was the main author of the section of the report in my role as a member of the Independent International Commission on Kosovo, which put forth the rationale of ‘illegal but legitimate’ with respect to the Kosovo intervention. I had misgivings at the time, but was swayed by the shadow of Srebrenica and the difficulties of finding a consensus among the members of the Commission to put forth this line of argument, qualified to an extent in the text of the report, by invoking the exceptional facts and expressing what turned out to be the vain hope that the UNSC would itself create greater flexibility in responding to humanitarian crises of this kind and overcome what seemed at the time giving credibility to a pattern of justification for war making that could in the future be twisted out of shape by geopolitical opportunism. My fears have been realized, and I would now be very reluctant to endorse my own formulations that seemed, on balance the right way to go back in the year 2000. Now I lose sleep whenever I recall that I was responsible for what has become an insidious conceptual innovation, ‘illegal but legitimate,’ which in unscrupulous geopolitical hands operates as an ‘open Sesame’ rendering irrelevant Charter constraints.

 

The Libyan precedent is also relevant, although in a different way, to the marginalization of the UN and international law to which this latest Syrian action is a grim addition. Because the people of the Libyan city of Benghazi truly faced an imminent humanitarian emergency in March of 2011 the argument for lending UN protection seemed strong. Russia and China, permanent members of the UNSC, and other skeptical members, were persuaded to suspend their suspicions about Western motives and abstained from a resolution specifically authorizing the establishment of a No Fly Zone to protect Benghazi. It didn’t take long to disabuse Russia and China, mocking their trust in assurances by the NATO states that their objective were limited and strictly humanitarian. They were quickly shocked into the realization that actual NATO mission in Libya was regime change, not humanitarian relief. In other words, these same Western powers who are currently claiming at the UN that international law is on their side with regard to Syria, have themselves a terrible record of flouting and manipulating UN authority whenever convenient and insisting on their full panoply of obstructive rights under the Charter when Israel’s wrongdoing is under review.

 

Ambassador Nikki Haley, Trump’s flamethrower at the UN, arrogantly reminded members of the Security Council that the U.S. would carry out a military strike against Syria whether or not  it was permitted by the Organization. In effect, even the veto as a shield is not sufficient to quench Washington’s geopolitical thirst. It also claims the disruptive option of the sword of American exceptionalism to circumvent the veto when it anticipates being blocked by the veto of an adversary. Such duplicity with respect to legal procedures at the UN puts the world back on square one when it comes to restraining the international use of force by geopolitical actors. Imagine the indignation that the U.S. would muster if Russia or China proposed at the Security Council a long overdue peacekeeping (R2P) mission to protect the multiply abused population of Gaza. And if these countries went further, and had the geopolitical gall to act outside the UN because of an expected veto by NATO members of the Security Council and the urgency of the humanitarian justification, the world would almost certainly experience the bitter taste of apocalyptic warfare.

 

 

The Charter Framework is Not Obsolete

 

The Charter framework makes as much sense, or more, than when crafted in 1945. Recourse to force is only permissible as an act of self-defense against a prior armed attack, and then only until the Security Council has time to act. In non-defensive situations, such as the Syrian case, the Charter makes clear beyond reasonable doubt that the Security Council alone possesses the authority to mandate the use of force, including even in response to an ongoing humanitarian emergency. The breakthrough idea in the Charter is to limit as much as language can, discretion by states to decide on their own when to have recourse to acts of war. Syria is the latest indication that this hopeful idea has been crudely cast in the geopolitical wastebasket.

 

It will be up to the multitudes to challenge these developments, and use their mobilized influence to reverse the decline of international law and the authority of the UN. Most members of the UN are themselves so beholden to the realist premises of the system that they will never do more than squawk from time to time.

 

Ending Trump’s boastful tweet about the Syrian airstrike with the words ‘mission accomplished’ unwittingly reminds us of the time in 2003 when the same phrase was on a banner behind George W. Bush as he spoke of victory in Iraq from the deck of an aircraft carrier with the sun setting behind him. Those words soon came back to haunt Bush, and if Trump were capable of irony, he might have realized that he is likely to endure an even more humbling fate, while lacking Bush’s willingness to later acknowledge his laughable mistake.

 

 

Fudging Constitutional Authorization

 

Each of the attacking countries claims impeccable democratic credentials, except when their effect is to impede war lust. Each purports to give its legislative branch the option of withholding approval for any contemplated recourse to military action, except in the case that the homeland is under attack. Yet here, where there was no attack by Syria and no imminent security threat of any kind each of these governments joined in an internationallyunlawful attack without even bothering to seek domesticlegislative approval, claiming only that the undertaking served the national interest of their governments by enforcing the norms of prohibition contained in the Chemical Weapons Convention.

 

The American attempts to supply flimsy domestic justifications are decisively refuted by two widely respected international jurists, including one, Jack Goldsmith, who was a leading neoconservative legal advisor in the early years of the George W. Bush presidency. [Jack Goldsmith & Oona Hathaway, “Bad Legal Arguments for the Syria Airstrikes,” Lawfare website, Aprile 14, 2018]  Their article rejects arguments based on theAuthorization for the Use of Military Force, which in 2001 gave broad authority to use military force in response to the 9/11 attacks, but has no bearing here as Syria has never been accused of any link. The other legal claim that has been brought forward argues that the airstrikes are expressions of the president’s authority under Article II of the Constitution to serve as Commander in Chief, but any freshman law student knows, or should know, that this authority is available only if the use of force has been previously validated by Congress or is in response to an attack or a plausible argument of the perceived imminence of such an attack. Revealingly, the internal justification for Trump’s authority has not been disclosed as yet, and has been heavily classified, showing once again that government secrets in wartime are not primarily kept to prevent adversaries from finding things out, but as with the Pentagon Papers, are useful mainly to keep Americans in the dark about policies that affect their wellbeing and possibly their survival. It also gives the leadership more space for deception and outright lies.

 

It has been reliably reported that the Trump White House preferred to act without seeking Congressional approval, presumably to uphold the trend toward establishing an ‘executive presidency’ when it comes to war/peace issues, thereby effectively negating a principal objective of the U.S. Constitution to apply the separation of powers doctrine to any recourse to war. This also marginalizes the War Powers Act enacted into law in the aftermath of the Vietnam War in the vain attempt to restore the Constitutional arrangement after a period during which the President arrogated power to wage war and the policy acted upon produced the worst foreign policy failure in all of American history.

 

 

Where Does This Leave Us?

 

There are several levels of response:

 

–with respect to Syria, nothing has changed.

 

–with respect to the UN and international law, a damaging blow was struck.

 

–with respect to constitutionalism, a further move away from respect for separation of powers, thus marginalizing the legislative branch with respect to war/peace policies.

 

–with respect to oppositional politics, citizen protest, and media reactions, an apathetic atmosphere of acquiescence, with debate shifting to questions of purpose and effectiveness without virtually no reference to legality, and quite little, even to legitimacy (that is, moral and political justifications).

 

The Gulf Crisis Reassessed

12 Mar

[Prefatory Note: The dysfunctionality of the Gulf Crisis, pitting a coalition of four countries, Saudi Arabia, UAE, Bahrain, and Egypt against tiny Qatar, is emblematic of the descent into multi-dimensional chaos, conflict, and coercion that afflicts much of the Middle East. Qatar may be tiny, but it is wealthy and has chosen for itself a somewhat independent path, and for this reason has experienced the wrath of the more reactionary forces operative in the region and world. At the center of the dysfunction is the manipulation of the political discourse on terrorism, pointing accusing fingers without any regard for evidence or fabrication.

 My text below seeks to put forward a dispassionate and objective analysis from the perspective of international law and diplomatic protocol of the so-called ’13 Demands’ (appended as an annex) directed at Qatar by the coalition almost a year ago. Despite having its own internal problems and challenges, Qatar has provided a relatively open political space compared to the rest of the region, encouraging media and educational diversity, giving asylum to political exiles and refugees, and showing sympathy, although inconsistently, for the aspirations of the Arab masses. This makes the Gulf Crisis a further setback for those seeking regional empowerment, sustainable development, and social, political, economic, cultural, and climate justice for the region as a whole. The intrusion of Trumpian geopolitics, especially the escalating confrontation with Iran, aggravates the disorders and dangers posed by the conflict patterns and irresponsible allegations with regard to terrorism now playing out in the region. I believe that by reflecting on the unreasonableness of the 13 Demands of the coalition it is possible to understand better the maladies affecting the entire region.]

 

 

A Normative Evaluation of the Gulf Crisis

 

The Gulf Crisis erupted on June 5 2017 when a Saudi Arabian led coalition of

four countries broke diplomatic relations with Qatar and Saudi Arabia closed its sole land border to Saudi Arabia and refused to allow their national air spaces to be used by flights from or to Qatar.[1] The imposition of a blockade is generally regarded as an act of war in contemporary international law, which is also a violation of the UN Charter’s prohibition of recourse to international force except in cases of self-defense against a prior armed attack. (UN Charter, Article 2(4), 51) These unilateral moves were then given a more concrete form on June 22 in the shape of ’13 Demands’ that instructed Qatar to comply within ten days, or face indefinite isolation. There followed failed attempts by Kuwait to mediate. From the start the leadership of Qatar expressed its immediate willingness for dialogue as the correct way to resolve the Gulf Crisis; as well, the United States and several principal countries in Europe urged a diplomatic resolution of the dispute as being in the interest of the Gulf region and the Middle East generally.

 

In this paper the 13 Demands of the Saudi coalition (Saudi Arabia, United Arab Emirates, Bahrain, and Egypt) are considered from the perspective of international law (including the UN Charter), the protocols of international diplomacy, and the framework of cooperation associated with the GCC framework. The paper analyzes these normative dimensions of international relations with special attention to the specific context associated with Qatar and the Coalition. This analysis is supplemented by a consideration of whether there are grounds for making some adjustments in Qatari policy based on its affinities with other states that are member of the GCC, including a large number of shared policy goals. From the outset, it seemed as if all sides in the conflict, at least outwardly, favored a prompt resolution of the crisis, but how this could be achieved given the sovereignty concerns of Qatar remains elusive 8 months later. The formidable obstacles to normalization are evident from the nature of the 13 demands of the Coalition and Qatar’s unshakable resolve to defend its independence and uphold its sovereign rights.

 

Attention is also given as to whether Coalition grievances have some policy merit if treated as a matter of ‘reasonableness’ within the GCC framework even if the 13 demands do not make the case that Qatar should change its behavior because its policies have been violating international law. Are there ways for the government of Qatar to alter its policies to satisfy the Coalition without sacrificing its fundamental identity as a fully sovereign state and member of the United Nations in good standing? In this regard, the internal values and expectations of the GCC with respect to the degree to which diversity of public order internal to the state is permissible and the extent to which domestic and foreign policy of a GCC member state needs to avoid causing impacts on the security of other GCC members are relevant considerations.

 

 

The 2014 Gulf Crisis

 

It seems important to realize that tensions between GCC members and Qatar have been present since the time of the GCC’s formation, but for reasons of internal cohesion these disagreements were for years kept below the surface. However, as these underlying tensions greatly intensified after the Arab Spring of 2011 it became increasingly difficult to maintain confidentiality as to policy differences. These differences climaxed as a result of the regional growth of influence of the Muslim Brotherhood, which was regarded as a serious threat by the Coalition states while being viewed rather more favorably by Qatar. It was hardly a secret that this rise of the Brotherhood was perceived as a hostile and potentially dangerous development by several GCC countries, and especially UAE and Saudi Arabia, as well as Bahrain.

 

In this regard, Qatar’s sympathy for the Arab uprisings and its relatively positive relationship with the Muslim Brotherhood struck a raw nerve in relations within the GCC, raising serious questions about the workability of the GCC as a collaborative alliance in the future. This discord broke into the open in March 2014 when Bahrain, Saudi Arabia, and UAE withdrew their ambassadors from Doha in an obviously coordinated move. In response, Qatar sought dialogue and reconciliation, and decided to leave its ambassadors in place rather than engage in reciprocal withdrawal. The Emir, Sheik Tamim, took a diplomatic initiative by seeking reconciliation in the course of several meetings with King Abdullah in Riyadh.

 

The Qatar position in response was articulated at the time by the then Minister of Foreign Affairs, Khaled bin Mohammed Al-Attiyah, who stressed early in the 2014 crisis that Qatar would not compromise with respect to its insistence on ‘independence’ for itself and other GCC members and in relation to showing support for peoples in the region seeking ‘self-determination, justice, and freedom.’ [Interview, Al-Arabiya, 5 March 2014] Such a position, especially after the MB did better than expected in elections, especially in Egypt, sharpened the tensions, with the Saudi-led Gulf monarchies being determined to do all in their power to promote counter-revolution in the region to the extent of criminalizing the MB as a terrorist organization. Qatar’s refusal to go along with such aggressive moves prompted the rupture in relations, but only temporarily.

 

With the encouragement of the non-aligned GCC members, Kuwait and Oman, there took place a GCC Summit in November 2014 that agreed to the Riyadh Supplemental Agreement that reaffirmed the GCC norms of non-interference and avoidance of behavior that poses a threat to the political stability of other members. GCC diplomatic relations were restored, and this first Gulf Crisis unrealistically viewed as having been resolved. The GCC was widely praised for surmounting its internal differences, and recognizing the strength of its fraternal bonds. Some optimistic commentators viewed this closing of ranks as a sign that the GCC had attained ‘maturity,’ but in retrospect the conflict was not overcome or compromised, but swept under the rug for the moment. The Riyadh Supplemental Agreement, although not a public document, apparently contains contradictory principles that allow both sides to find support for their positions. The Coalition can take heart from the commitment of participating governments not to adopt policies and engage in behavior that threatens other GCC members. Qatar can feel vindicated by the recognition and affirmation of the sovereign rights of GCC members.

 

Despite the formal resolution of the 2014 crisis it was evident even at the time that UAE, in particular, continued to be deeply opposed to what it regarded as Qatar’s positive relations with and public support for the MB. It was this rift as filtered through later developments, especially the sectarian and regional geopolitical opposition of the Coalition to Iran even in the face of difference of policy nuance among Coaltion member. The Coalition is not monolithic.. Nevertheless, certain tendencies are evident. Post-2014 Iran replaced the MB as the main adversary of the Coalition, while Qatar for entirely different reasons found itself in an economic and political position that demanded a level of cooperation with Iran, centered on the world’s largest natural gas field being shared by the two countries.

 

 

 

The Onset of the 2017 Crisis

 

While the American president, Donald Trump, was in Saudi Arabia for a formal state visit in May 2017, there were strong accusations directed at Qatar as funder and supporter of terrorism, not doing its part in the struggle against terrorism in the Middle East, views that were blandly endorsed by Trump without any plausible grounding in evidence. Following Trump’s departure, the Coalition hostile to Qatar was formed with the same GCC alignment of Bahrain, Saudi Arabia, and the UAE as antagonists and Kuwait and Oman as non-aligned. A major difference from 2014 was that the GCC initiative this time included the participation of Sisi’s Egypt, the new leader who had in 2013 overthrown the MB elected government and

who received major economic assistance from GCC governments.

 

On 6 June 2017 the anti-Qatar coalition announced intention to confront Qatar because of alleged support of terrorism throughout the Middle East. This declaration included the announcement that diplomatic relations would be suspended and Qatar’s land border with Saudi Arabia would be closed, air space blocked; in addition, 19,000 Qatari individuals given two weeks to leave Coalition countries, and 11,300 Coalitional nationals living in Qatar were ordered to return home or face serious penalties, an unusual example of ‘forced repatriation.’ Unlike 2014, Qatar withdrew its ambassadors from the three coalition members plus Egypt.

 

These actions met with strong Qatari objections, although coupled with an offer of dialogue and advocacy of a political solution. Qatar’s initiative did not lead to a favorable response from the Coalition membership. In fact, the Gulf Crisis was actually aggravated when the Coalition tabled its 13 Demands with an ultimatum demanding compliance within ten days.

 

It should be pointed out that this unilateralism by the Coalition, especially on the part of countries with many shared interests, common undertakings, and overlapping relationships, is directly opposed to the letter and spirit of Article 2(3) of the United Nations Charter: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” Here, the Coalition made no effort whatsoever to resolve the crisis peacefully, either by way of a call for diplomacy prior to taking coercive steps or through agreeing to mediation in the immediate aftermath of the crisis. Instead, these Coalition’s coercive moves caused harm to both the public interest of the state of Qatar and to private citizens of Qatar whose professional and personal lives were disrupted in serious ways that constituted violations of international human rights standards.

 

 

’13 Demands’ of Bahrain, Saudi Arabia, and UAE

 

The explicit focus of the 2017 crisis shifted its main attention to the campaign against terrorism, with a background allegation that Qatar had been funding and supporting terrorism in the Arab world for many years, and was thus an outlier in the GCC context. There were two dubious major assumptions accompanying the Coalition demands: (1) that the MB is correctly identified as a ‘terrorist organization;’ (2) that the members of the GCC Coalition, despite their own extensive funding of radical madrassas throughout the Muslim world, were less guilty than Qatar, of nurturing the terrorist threat in the Gulf and throughout the Middle East. In this respect, playing ‘the terrorist card’ by the Coalition obscured the extent to which the real explanation of the crisis had little to do with suppressing terrorism and much to do with confronting Iran, and thus disciplining Qatar in reaction to its disproportionate influence in the region, and controlling the terrorist discourse in a manner that corresponded with their strategy of considering as ‘terrorist’ any political movement that challenged in any way the legitimacy of Islamic dynastic rule. It is highly relevant that Qatar also is governed by dynastic monarchy, but in a manner that is far more consonant with international law than are its Coalition neighbors. Qatar is also more tolerant of diversity and dissent internally than other Coaltion members, but faces serious human rights challenges with respect to its non-Qatari residents who comprise the majority of the population.

 

The 13 Demands are set forth in a document released on June 6, 2017, giving a formal character to the Coalition’s disregard of international law and diplomatic protocol in its undertaking to control Qatar’s domestic and foreign policy. These demands can be examined from the perspective of international law and international human rights standards. It should be observed that the 13 demands are not presented in a reasoned way or with any attempt to be reconciled with either international law or diplomatic relations between sovereign states, especially here, where the relations are especially close given the juridical and practical collaborative activities of members of the GCC. As earlier comments make clear, there were clear tensions associated with Qatar’s perceived support for the MB, especially in Egypt, and its relative openness on issues of freedom of expression, which included criticism of Coalition countries.

 

What follows is brief commentary from the perspectives of international law and international diplomacy on each of the 13 demands:

 

  1. Curb diplomatic ties with Iranand close its diplomatic missions there. Expel members of Iran’s Revolutionary Guards and cut off any joint military cooperation with Iran. Only trade and commerce with Iran that complies with US and international sanctions will be permitted.

This primary demand may be the most important political item on the list of 13, but it has no foundation in international law. Qatar as a sovereign state has complete freedom to establish whatever relationship it chooses to have with Iran.

From a diplomatic perspective this ‘demand’ can be interpreted as a request from the closely aligned states that constitute the Coalition, but if so construed, it is an occasion for discussion, and policy coordination, not coercive threats and actions.

As for the obligations associated with sanctions, there is no legal reason for Qatar to implement U.S. sanctions imposed on Iran. Qatar does have a limited obligation to uphold UN sanctions, but the Coalition has no standing, except possibly within a UN setting, to raise such an issue.

 

  1. Sever all ties to “terrorist organisations”, specifically the Muslim Brotherhood, Islamic State, al-Qaida and Lebanon’s Hezbollah. Formally declare those entities as terrorist groups.

Formulating this request in the form of a ‘demand’ seems an inappropriate intrusion on a matter within the sovereign discretion of Qatar. As with the first demand, the call for severance of ties with the MB and Hezbollah are of great importance to the Coalition, but this is a political matter to be discussed either within the GCC or some other forum. For the Islamic State and al-Qaida there is little disagreement about there character as a ‘terrorist organization,’ but for the MB and Hezbollah the assessment is more contested, and thus a demand that they be “formally declared” as a terrorist organization is inappropriate from perspectives of international law and international diplomacy.

 

  1. Shut down al-Jazeeraand its affiliate stations.

Such a demand is in flagrant violation of the right of freedom of expression as embodied in authoritative international law treaties and part of customary international law relating to human rights. In effect, Qatar is put under pressure to commit such a violation. It is especially objectionable as al-Jazeera and its affiliates conform to high standards of journalistic professionalism, and do not open their media outlets to hostile propaganda or hate speech. Demand (3) contravenes Articles 18 & 19 of the Universal Declaration of Human Rights.

 

  1. Shut down news outlets that Qatar funds, directly and indirectly, including Arabi21, Rassd, Al-Araby Al-Jadeed and Middle East Eye.

The same legal rationale applies as set forth in response to Demand (3). Further, here there is an attempted interference with Qatar’s support for high quality media elsewhere that is a public good, giving the peoples of the Middle East and elsewhere exposure to alternative viewpoints on the main public issues of the day.

 

  1. Immediately terminate the Turkish military presencein Qatar and end any joint military cooperation with Turkey inside Qatar.

This demand attempt to intervene in the internal security arrangements of Qatar, and as such challenges its sovereign rights on a matter of prime national concern. It is an attempted violation of the central norms of peaceful relations, as set forth in the influential Declaration on Principles of International Law Concerning Friendly Relation and Co-Operation Among States in Accordance with the Charter of the United Nations, GA Resolution 2625, 1970, especially principles b-e, stressing sovereignty and non-intervention.

If Turkey was somehow posing an existential threat to Coalition countries, then a diplomatic appeal to a fellow GCC member might be a reasonable initiative. As matters now stand Turkey has a diplomatic presence in all Coalition members, except Egypt where relations are kept at the level of Charges d’Affiares. There is some friction between Turkey and the UAE on various issues, and so tensions exist, including in relation to resolving the Gulf Crisis. On its face, Demand (5) is entirely unreasonable from both the perspective of international law and normal diplomacy.

 

  1. Stop all means of funding for individuals, groups or organisations that have been designated as terroristsby Saudi Arabia, the UAE, Egypt, Bahrain, the US and other countries.

This may be the most extraordinarily inappropriate demand of all for two reasons. First, it removes from Qatar’s discretion the designation of “individuals, groups or organisations” that are deemed to be “terrorists.” This is an unacceptable intrusion on Qatar’s sovereign rights. And by including the United States it moves the source of Coalition grievance outside the framework of both the GCC and the Coalition. Egypt is also not a member of the GCC but at least a member of the Coalition.

It seems obvious that the effort here is to brand as terrorists those individuals and organizations associated with the MB and Hezbollah as directly targeted in Demand (2).

 

  1. Hand over “terrorist figures”and wanted individuals from Saudi Arabia, the UAE, Egypt and Bahrain to their countries of origin. Freeze their assets, and provide any desired information about their residency, movements and finances.

Demand (7) suffers from the same deficiencies as (6) plus the added indignity of such vague and inflammatory designations as “‘terrorist figures’ and ‘wanted individuals.’” Such a demand could be formulated in acceptable diplomatic language as pertaining to those who had been convicted of crimes by courts in Coalition, and were subject to extradition following formal requests made to the Government of Qatar. Extradition would not be available if the person requested was convicted of ‘political crimes’ or if the trial process was not in accord with international standards, or if no extradition treaty or practice exists.

 

  1. End interference in sovereign countries’ internal affairs. Stop granting citizenship to wanted nationals from Saudi Arabia, the UAE, Egypt and Bahrain. Revoke Qatari citizenship for existing nationals where such citizenship violates those countries’ laws.

 

Again as in Demand (7), the demanded action is a clear interference with core sovereign rights pertaining to the grant and withdrawal of citizenship of the State of Qatar, and as such an attempted violation of the norm prohibiting intervention. It seeks such a crude disregard of Qatari sovereignty as to constitute a grave diplomatic insult, which is a breach of protocol, especially inappropriate for countries supposedly collaborating on the basis of shared interests and common values within the GCC framework.

 

  1. Stop all contacts with the political opposition in Saudi Arabia, the UAE, Egypt and Bahrain. Hand over all files detailing Qatar’s prior contacts with and support for those opposition groups.

As with Demand (8) to make such a demand public is to breach diplomatic protocol, as well as to express in this context of threat and insult issues that are within the sphere of Qatar’s internal security policies and practices. If the context were different, it might be that Coalition could make confidential requests to Doha institutions and officials for cooperation with respect to specific individuals deemed dangerous to one or more GCC member states, and even to Egypt. It might also be observed that reliable reports by the BBC and elsewhere that the UAE was holding a Qatari prince captive as a possible replacement for the Emir of Qatar. Such reports make this demand particularly objectionable and hypocritical.

 

  1. Pay reparations and compensation for loss of life and other, financial losses caused by Qatar’s policiesin recent years. The sum will be determined in coordination with Qatar.

Demand (10) is on its face vague and unacceptable from the perspectives of international law and diplomacy. It is formulated as if “Qatar’s policies in recent yIears” can be assumed to be wrong and unlawful to such an extent as to justify a demand for “reparations and compensation.” This is not only an unlawful demand, it is irresponsibly asserted in a manner that any government would find to be insulting and totally unacceptable.

  1. Consent to monthly audits for the first yearafter agreeing to the demands, then once per quarter during the second year. For the following 10 years, Qatar would be monitored annually for compliance.

As with the prior demand, Demand (11) seems such a departure from the canons of public diplomacy as to be inserted as a deliberate provocation on a fundamental matter of Qatar sovereign rights. In effect, Demand (11) is seeking a humiliating public surrender of Qatar’s sovereignty, and a basic repudiation of the most fundamental standard of international diplomacy—the equality of sovereign states. Under no conditions, short of terms imposed on a defeated government after a war can such a requirement of “monthly audits” for a period of ten years be deemed reasonable or acceptable.

 

  1. Align itself with the other Gulf and Arab countries militarily, politically, socially and economically, as well as on economic matters, in line with an agreement reached with Saudi Arabia in 2014.

Unlike other demands, especially Demands (9)-(11), Demand (12) on its face seems relatively unobjectionable, and can be understood as a mere call for greater collaboration. It can also be read as unacceptably putting Qatar in a subordinate position of ‘aligning itself’ on policy matters with Coalition and unspecified other “Arab countries” rather than seeking policy coordination on the basis of sovereign equality and mutual respect. To the extent that it uses coercive language, it is diplomatically unacceptable.

 

  1. Agree to all the demands within 10 days Agree to all the demands within 10 daysof it being submitted to Qatar, or the list becomes invalid.

Such an ultimatum is an unlawful challenge to the sovereign rights of Qatar and a serious breach of diplomatic protocol in relations between sovereign states, accentuated by common membership in the GCC. There is no rationale or justification given for this kind of hegemonic language or attempted control of Qatar’s lawful and discretionary policies and practices. Although rendered invalid by its language if not accepted within ten days, its renewed assertion by the Coalition makes Demand (13) incoherent, and of ambiguous relevance to efforts to resolve the Gulf Crisis.

 

Conclusion:

The analysis and appraisal of the 13 Demands from the perspective of international law and diplomatic protocol reaches the conclusion that not one of the demands is reasonable, in accord with respect for the sovereignty of Qatar, and respectful of the proper canons of diplomacy governing relations among sovereign states that are based on equality and mutual respect. In summary, the 13 Demands are incompatible with the principles set forth in GA Res. 2625, referenced above, that sets forth the principles for lawful and friendly relations among sovereign states, as well as with Article 2 of the UN Charter. Take as a whole, the demands seem so incompatible with respect for Qatar as a sovereign state as to appear intended to isolate the country or even create an atmosphere that prepared the way for regime-changing coup. Such a scenario, even if not executed, is incompatible with international law and the norms of friendly relations among states, especially, as here, among aligned states.

It might be useful at some point to make public use of this point-by- point analysis of the 13 Demands to underscore Qatar’s strong and unassailable position in refusing to accede to these demands. The fact that the Coalition has recently affirmed their insistence that Qatar accept the 13 Demands as the precondition for resolving the Gulf Crisis suggests the importance of a convincing set of explanations for Qatar’s refusal to respond favorable to the 13 Demands either singly or collectively.

This seeming effort to compel Qatar to except external pressures, including a demand of compliance with U.S. sanctions imposed on Iran sets a precedent that could work against the sovereignty of other GCC members in the future. The diplomatic posture with respect to Qatar seems t0 assert a collective right of GCC members to intervene in internal affairs of another member to a far greater extent that present supernational actors have ever in the past claimed.

It seems doubtful that the 13 Demands have any constructive role to play in a diplomacy of reconciliation among Gulf countries. Indeed, it would seem that a necessary first step toward the initiation of a diplomacy of reconciliation would be for the Coalition to abandon any further reference to the 13 Demands as possessing any relevance whatsoever in shaping future relations between Qatar and the GCC and Coalition.

*****************************************************************

 

Annex: The 13 Demands

  1. Curb diplomatic ties with Iranand close its diplomatic missions there. Expel members of Iran’s Revolutionary Guards and cut off any joint military cooperation with Iran. Only trade and commerce with Iran that complies with US and international sanctions will be permitted.
  2. Sever all ties to “terrorist organisations”, specifically the Muslim Brotherhood, Islamic State, al-Qaida and Lebanon’s Hezbollah. Formally declare those entities as terrorist groups.
  3. Shut down al-Jazeeraand its affiliate stations.
  4. Shut down news outlets that Qatar funds, directly and indirectly, including Arabi21, Rassd, Al-Araby Al-Jadeed and Middle East Eye.
  5. Immediately terminate the Turkish military presencein Qatar and end any joint military cooperation with Turkey inside Qatar.
  6. Stop all means of funding for individuals, groups or organisations that have been designated as terroristsby Saudi Arabia, the UAE, Egypt, Bahrain, the US and other countries.
  7. Hand over “terrorist figures”and wanted individuals from Saudi Arabia, the UAE, Egypt and Bahrain to their countries of origin. Freeze their assets, and provide any desired information about their residency, movements and finances.
  8. End interference in sovereign countries’ internal affairs. Stop granting citizenship to wanted nationals from Saudi Arabia, the UAE, Egypt and Bahrain. Revoke Qatari citizenship for existing nationals where such citizenship violates those countries’ laws.
  9. Stop all contacts with the political opposition in Saudi Arabia, the UAE, Egypt and Bahrain. Hand over all files detailing Qatar’s prior contacts with and support for those opposition groups.
  10. Pay reparations and compensation for loss of life and other, financial losses caused by Qatar’s policiesin recent years. The sum will be determined in coordination with Qatar.
  11. Consent to monthly audits for the first yearafter agreeing to the demands, then once per quarter during the second year. For the following 10 years, Qatar would be monitored annually for compliance.
  12. Align itself with the other Gulf and Arab countries militarily, politically, socially and economically, as well as on economic matters, in line with an agreement reached with Saudi Arabia in 2014.
  13. Agree to all the demands within 10 daysof it being Agree to all the demands within 10 daysof it being submitted to Qatar, or the list becomes invalid.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] The Gulf countries, in addition to Saudi Arabia, were the UAE and Bahrain; the fourth member of the Coalition was Egypt. This group of four is referred to as ‘the Coalition’ in this text.

Book Launch: Revisiting the Vietnam War: The Views and Interpretations of Richard Falk, edited by Stefan Andersson

2 Mar

Book Launch: Revisiting the Vietnam War: The Views and Interpretations of Richard Falk, edited by Stefan Andersson, Cambridge University Press, 2017.

 

 

Why the Legal and Political Debate on the Vietnam War Still Matters

 

 

[Prefatory Note: There has been recently a revival of interest in the Vietnam War, perhaps most notably as a result of the quite extraordinary Ken Burns & Lynn Novick’s ten-part, eighteen hour documentary film as aired on PBS, which although somewhat ideologically slanted toward an American audience has much illuminating footage, especially bearing on various Vietnamese perceptions of the war experience. I would also call attention to a series of articles by Matthew Stevenson describing his recent visit to Vietnam, which combines acute journalistic observation with impressive commentary on the war experience and the problematics of contemporary Vietnam. Stevenson’s valuable contributions are being serially published in Counterpunch, so far two of a promised eight.

 

I visited Vietnam in November of 2017 for ten days, and met with some Vietnamese officials I had known during the war, as well as with journalists and friends, seeking, especially, to understand whether the present generally harsh criticisms of suppression of dissent and authoritarian governance were justified, and came to mixed conclusions.

 

On human rights my suspicions of Western bias seemed entirely vindicated, that is, by reducing the effective scope of international human rights criteria to civil and political rights, and completely ignoring successes or failures in social and economic rights. Vietnam is illustrative of this pattern of claiming the high moral ground for the West in the post-colonial era by pointing to their human rights failings, completely overlooking Vietnam’s remarkable achievements of poverty reduction resulting from the pursuit of a needs based development strategy up to this point. With tens of millions of Americans and Europeans enduring varying degrees of material deprivation relating to food, health care, shelter, and jobs, their boastfulness about human rights has an increasingly hollow, even macabre, sound. Indeed, given the wealth of these societies and the scandalous disparities between rich and poor, it would be more reasonable to single out these countries for censure as notable laggards when it comes to human rights provided that economic and social rights are included in the mix. I am not minimizing the importance of civil and political rights, but for the majority of the population these rights pale in day to day significance if compared to failings in the domain of economic and social rights.

 

These comments introduce an online launch my own book, Revisiting the Vietnam War: The Views and Interpretations of Richard Falk, published by Cambridge University Press at the end of 2017. In fact, it is not really my book, but as much or more the work of my friend and colleague, Stefan Andersson who edited the text, supervised the production process, arranged for the blurbs, and above all, overcame my own lethargy. I add the newly written preface that I contributed to this collection of my past writings. After the post the back cover containing blurbs is shamelessly included to induce readers to rush to order the book from Amazon or your bookseller of choice.

 

The preface essentially expresses my view that the wrong lessons have been learned by the United States from its failure in Vietnam, and thus the cycle of regressive violence continues to torment vulnerable peoples in the non-Western world. This geopolitical and normative learning disability is at its core an effort to particularize the Vietnam experience, and allowing policy planners and think tank analysts to propose a series of tactical adjustments that will ensure that future Vietnams result in successful outcomes. Such a (mis) reading of Vietnam has contributed to the more recent counterinsurgency failures as in Afghanistan and Iraq, confirming the my central assessment that the real lessons of post-colonial world order are resisted because their proper interpretation would substantially discredit American reliance on global militarism as the foundation of its grand strategy around the world. Perhaps, most troubling to me, especially in light of this commentary on the evasion of international law throughout the Vietnam War, is the new more drastic set of evasions of international law that have followed ‘the war on terror’ initiated in response to the 9/11 attacks on the World Trade Center and the Pentagon.

 

In any event, my book, as well as the current flurry of interest in Vietnam, seeks to encourage citizens pilgrims throughout the world to remember Vietnam as a culmination of the anti-colonial wars and as the basis for a revisionist view of the agency of hard power in the 21st century. I ask indulgence for my miserable attempt to add a photo of the cover below, which is an injustice to the talented Canadian artist, Julianne Allmand. who created it under the title, ‘Sticky Fire.’ I am painfully aware that I could have done far better as a photographer had I entered the digital age twenty years earlier.]

 

 

 

 

 

 

The Harmful Legacy of Lawlessness in Vietnam

 

More than 40 years after the defeat of the United States in Vietnam the central lessons of that war remain unlearned. Even worse, the mistakes made and crimes committed in Vietnam have been repeated at great human, material, and strategic cost in several subsequent national settings. The central unlearned lesson in Vietnam is that the collapse of the European colonial order fundamentally changed the effective balance of power in a variety of North/South conflict situations that reduce the agency of military superiority in a variety of ways.[1]

What makes this change elusive is that it reflected developments that fall outside the policy parameters influential in the leadership circles of most governments for a cluster of reasons. Most fundamentally, governmental geopolitical calculations relating to world order continue to be based on attributing a decisive causal influence to relative military capabilities, an understanding at the core of ‘realist’ thinking and behavior. Within this paradigm military superiority is regarded as the main driver of conflict resolution, and the winners in wars are thought to reflect the advantages of hard power differentials. The efficiency and rewards of military conquest in the colonial era vindicated this kind of realist thinking. Europe with its dominant military technology was able to control the political life and exploit the resources of populous countries throughout Asia, Africa, and Latin America with a minimum of expenditure and casualties, encountering manageable resistance, while reaping the rewards of empire. The outcomes of World War I and II further vindicated the wider orbit of the realist way of thinking and acting, with military superiority based on technological innovation, quantitative measures, and doctrinal adaptation to new circumstances of conflict receiving most of the credit for achieving political victories.

The Vietnam War was a dramatic and radical challenge to the realist consensus on how the world works, continuing a pattern already evident in nationalist victories in several earlier colonial wars, which were won against earlier expectations by anti-colonial forces. Despite these illuminating results of colonial wars after World War II the American defeat in Vietnam came as a shock. The candid acknowledgement of this defeat has been twisted out of recognition to this day by the interpretive spins placed upon the Vietnam experience by the American political establishment. The main motive of such partisan thinking was to avoid discrediting reliance on military power in the conduct of American foreign policy and to overcome political reluctance in the American public to fund high levels of military spending. Until the deceptive military victory in the First Gulf War of 1991, the policy community in the United States bemoaned what it described as ‘the Vietnam Syndrome,’ which was a shorthand designation for the supposedly unfortunate antipathy among the American citizenry to uses of hard power by the United States to uphold American geopolitical primacy throughout the world.

The quick and decisive desert victory against the imprudently exposed Iraqi armed forces massed on the desert frontier compelled Iraq to withdraw from Kuwait, which it had recently conquered and annexed. This result of war making was construed to vindicate and thus restore realist confidence in American war making as a crucial instrument of world order. On closer examination, this enthusiasm for war generated by the almost costless victory in the desert terrain of the First Gulf War involved a category mistake on the part of American leaders, or so it seems. It confused the continuing relevance of military capabilities in conventional war encounters between sovereign states with the declining utility of military supremacy in wars of intervention or counterinsurgency wars, that is, violent conflicts between a foreign adversary and a national resistance movement. It should have been clear to expert commentators that the Vietnam War was an example of a massive foreign intervention being defeated by a skillfully mobilized and efficiently led national movement, and in this respect totally different from First Gulf War with respect to terrain of battle and what was at stake politically for the two sides.

Comprehending why the United States mishandled not only the war in Vietnam but misconstrued its result, is associated with earlier unlearned lessons that involved a misinterpretation of the lost colonial wars, most relevantly, the French defeat in the Indochina War despite the long and deep French presence. In retrospect it was evident to all that the French had failed to grasp the extraordinary resolve that informed the nationalist motivations of the Vietnamese and more than compensated for their military weaknesses, empowering Vietnamese society to endure severe and prolonged suffering to achieve eventual political independence and national sovereignty, and the accompanying collective sense of national pride. Under the inspirational leadership of Gandhi, India achieved independence and recovered sovereignty through a militant nonviolent struggle that by heroic perseverance overcame the grim and unscrupulous determination of 10 Downing Street to retain ‘the jewel’ in the crown of the British Empire whatever the costs of doing so might turn out to be. Whether articulated as the rise of ‘soft power’ or explained by reference to the imbalance between imperial commitments and nationalist perseverance and local knowledge, the story line is the same. The intervening foreign or alien power has lower stakes in such struggles than does an indigenous population effectively mobilized as a movement of national resistance. Colonial powers were slow to recognize that moral and political resistance to their presence was growing more formidable as the ideology of nationalism spread around the world. Resistance become more credible, and withstood a series of prodigious colonial efforts to retain control over colonized peoples, but as these struggles proceeded the former colonial overlords were at varying stages forced to recalculate their interests, and mostly decided that it was better to give up their colonial claims and withdraw militarily than further commit to what had become a lost cause.

We can also interpret this historical turn as reflecting the disparities between the political will of a people fighting for self-determination and a foreign government linked to private sector interests that are trying to retain the benefits of control over a distant country for the sake of resources, prestige, settler pressures, geopolitical rivalry, or a combination of these factors. From the end of World War II onwards, this imbalance of political wills seems to offer the best predictor of the outcome of colonial wars or military interventions in counterinsurgency struggles. In this regard, the French defeat in Indochina should have delivered a cautionary message to the Americans. In fairness, it should be pointed out that the French themselves didn’t learn much from their Indochina defeat, going on to wage and lose an even more damaging colonial war in Algeria eight years later. The noted French journalist, Bernard Fall tried hard to warn the Americans of the great difficulty of achieving a reversal of the French experience in its Indochina War.[2] The French had higher than normal stakes in Indochina. It was to a significant extent ‘a settler colonial’ state, meaning that the French human and cultural presence had sunk deep roots that raised the stakes of withdrawal for France, an experience repeated on a larger scale in Algeria, but producing the same outcome but only after inflicting massive suffering on the native population. The American intervention in Vietnam was primarily motivated by the ideological rivalry of the Cold War, and did not have the high level of material and human interests that led the French to fight so hard to crush the Vietnamese and Algerian challenges to their colonial rule.

The ‘settler colonial’ situation of Algeria, and even more so, South Africa and Israel, complicate the overall analysis. In the event of settler control of the colonial state, the issue of foreign or alien rule becomes blurred, and the question of the identity of ‘the nation’ is itself contested in ways that are very different from the situation of a colonial administration governing on behalf of a European home country or metropole without any pretension of belonging to the occupied nation as if it was one’s own. Each situation has its own originality. For Jews in Israel who claim a biblical and ancestral mandate, and lacking a default homeland option in a distinct territory possess an intense political will to preserve their control of Palestine. The indigenous Arab population of Palestine also has a near absolute will to resist dispossession from their native lands, and are unwelcome elsewhere in the region, having experienced vulnerability to changes in local circumstances and discrimination in neighboring Arab countries. For this reason, as reinforced by the special relationship of Israel with the United States, the Palestinians are waging an uphill battle in which their supposedly inalienable rights of self-determination have been for decades squeezed almost beyond recognition.[3]

Against this background, American reasoning about the Vietnam War displayed what later would be called ‘the arrogance of power,’ that is, the blind faith in the efficacy of its hard power superiority in conflict situations, whether nuclear, conventional, or counterinsurgent.[4] The United States emerged from World War II as the dominant geopolitical actor in the world, having turned the tide of battle against Germany and Japan, as well as developing and using its monopoly over the ultimate weapon against Japan at the end the Pacific war by dropping atomic bombs on Japanese cities. If Germany and Japan could not resist the American juggernaut, who could expect a country that Lyndon Johnson and Henry Kissinger called ‘a fourth rate Asian power’ to resist and repel the American military machine? In the end, it was the greater Vietnamese will to persevere and their cultural resilience that overcame American firepower, as well as the unsurpassed anti-colonial legitimacy of the Vietnamese struggle, which contributed to the rise of a robust worldwide anti-war movement of solidarity, including within the United States. By the mid-1960s it had become increasingly evident that the side that won the legitimacy war would prevail politically even if compelled to endure devastating losses on the battlefield and throughout the country.[5]

The most serious blind spot of the realist paradigm is its inability to take account of its weaknesses with respect to legitimacy as a dimension of political life. This became manifest in the Vietnam setting. The American claims with respect to its presence in Vietnam were essentially ideological and geopolitical, the importance of avoiding the spread of Communism and thus containing the expansionist challenge being allegedly mounted by the Soviet Union and China. In opposition to such reasoning were the historically more influential claims in support of nationalism and the right of self-determination, especially in contexts involving struggles of a colonized people against their colonial masters. Vietnamese legitimacy claims with respect to the United States were further validated by the flagrant disregard of international law constraints and the impact of this disregard on world public opinion, which contributed to mounting American domestic opposition to continuing the war.[6]

This collection of essays written in support of the relevance of international law to the shaping of American foreign policy during the Vietnam Era remains instructive as the 21st century unfolds. The United States has continued to pursue a dubious diplomacy punctuated by military interventions in distant countries, fighting a series of losing counterinsurgency wars after Vietnam, remaining unresponsive to the constraints on recourse to war and war fighting embodied in international law and the UN Charter. The realist consensus, regarding law and morality as dispensable and marginal impediments to sustaining geopolitical effectiveness in world politics, continues to govern the policymaking entourage that shapes war/peace decisions, and has produced a string of costly defeats (especially, Afghanistan and Iraq) as well as badly damaged America’s reputation as a global leader, which in the end depends far more on its legitimacy credentials than on its battlefield prowess, but suffers most when it both loses on the battlefield and should lose if law and morality are taken into account. It is the contention of these essays that adherence to international law is vital for world peace and in the national interest of all countries on all occasions, and this includes the United States.

So-called ‘American exceptionalism’ operates as a free pass in Washington to disregard the rules applicable to other sovereign states, but as the recent history of international conflicts reveal, it does no favors to the United States or its people, although it may further the careers of diplomats and enhance the profits of special interests. Further, it seems evident that the continuing exercise of discretion to ignore legal constraints on the use of international force will be accompanied by repeated disappointments in the conduct of foreign policy for this most mighty country in all of world history and will also continue to erode its legitimacy credentials.

 

The 9/11 attacks gave the United States a chance to start over, undertaking a response to mega-terrorism within the framework of the rule of law that would have been a great contribution to building up the global rule of law and charting a new path toward sustainable global governance. Instead, a ‘war on terror’ was immediately launched that amounted to a declaration of permanent warfare, undermining the authority of international law and the UN, and perversely leading to the spread and intensification of terrorist activities. The defaming scandals of Guantanamo, Abu Ghraib, and ‘enhanced interrogation’ together with the failure to prosecute those responsible for authorizing and perpetrating ‘torture’ during the presidency of George W. Bush confirm the deeply entrenched refusal of the U.S. Government to self-enforce minimum standards of international criminal accountability, and its obvious endorsement of a flawed international criminal law regime that currently rests on the major premise of geopolitical impunity as interpreted by way of American exceptionalism. The emergence of ISIS, as had been prefigured in Afghanistan by the rise of Al Qaeda and occasioned by American occupation policies in Iraq, is the ultimate blowback experience betokening an erroneous hard power opportunism in Washington misleadingly chosen as the best approach to national and global security.

The essays in the volume also explore the failure to abide by the experience after World War II, which included imposing criminal accountability on those surviving German and Japanese military and political leaders responsible for the commission of state crime centering on the recourse to and prosecution of aggressive warfare, as well as the mass atrocities epitomized by the death camps. By now it is confirmed that the Nuremberg and Tokyo Judgments although respectful of defendants’ rights and substantively justified were in a larger sense ‘victors’ justice’ by exempting the crimes of the winners from legal scrutiny.[7] The principles of law applied to the losers at Nuremberg and Tokyo were never intended to be applied to the winners, or to those who would after 1945 control the geopolitical dimensions of world politics and dominate its various episodes of warfare.[8] Criminal accountability in relation to warfare was cynically applied to the losers and those in subordinate positions of state power throughout the world, and still is.

Into this normative vacuum stepped the rising activism of civil society, and this became initially disclosed as part of the rising opposition to the Vietnam War. The great British philosopher and political activist, Bertrand Russell, convened a tribunal of conscience composed of moral and cultural authority figures with international stature to gather the best evidence available of American criminality in the ongoing Vietnam War. This bold initative filled the institutional vacuum created by the lack of political will among governments or at the UN to carry forward the Nuremberg impulse with respect to accountability of individuals.[9] In effect, the project of imposing criminal accountability on the strong has become an exclusive undertaking of global civil society, although with some collaboration from moderate governments that do not enjoy the status of being geopolitical actors. It was this transnational collaboration between governments and civil society actors that generated the momentum leading to the unexpected establishment of the International Criminal Court in 2002, but as yet this new institution has given little indication that it possesses the capacity and even the mandate to extend the logic of accountability to geopolitical actors, above all the United States and its closest friends.

Reviewing the international law debates that took place during the Vietnam War remains critically relevant to any reform of American foreign policy relating to these war/peace issues. As in Vietnam, adherence to international law would have been consistently beneficial normatively (upholding law, protecting the vulnerable, avoiding casualties), geopolitically (respecting support for the ethos of self-determination and human rights as evidenced by the flow of history since 1945), and ideologically (recognizing that ‘terrorism’ is a law enforcement issue, not an occasion for war making; realizing that nationalist ideology does not translate into neighbors becoming ‘falling dominos’).

The lesson that most needed to be learned in the Vietnam Era, and remains unlearned 40 years after the ending of war, is the practical and principled desirability of adherence to international law in war/peace situations. Systemic violations of international law lead to geopolitical disappointment, human suffering, societal devastation, and a nihilistic atmosphere of international lawlessness. In contrast, habits and policies of adherence to international law, especially with respect to war/peace issues and matters of national and global security, privileges an emphasis on diplomacy, international cooperation, law enforcement, UN authority, as well as generates the self-confidence of political communities to be respectful of prudent restraint and develop greater reliance in pursuit of national goals on international procedures, norms, and institutions. Such a shift away from lawlessness is, of course, by no means a guaranty of peace and justice, but it provides the crucial foundation for creating better prospects for human wellbeing in the 21st Century.

In my preoccupation during the years between 1963 and 1975 I became obsessed with the Vietnam War, and how I might act as a scholar and citizen to bring this imprudent, unlawful, and immoral war to an end. My writing in this period reflects a process of deepening engagement, and an evolving shift of focus and orientation. In my initial articles on the war I was seeking to demonstrate the unlawfulness of the underlying intervention in Vietnam, with a special emphasis on the American expansion of the war from a struggle for control of the state in what was then treated as ‘South Vietnam’ to a conflict that included then ‘North Vietnam,’ which altered the nature of the war from an internal war in the South to a war between the two political communities that comprised Vietnam after the French defeat in 1954, and persisted until the American defeat in 1975. In the early selections represented here, the international law arguments were underpinned by a realist assessment that rested on the informed belief that this was an ill-considered commitment of U.S. military forces for the sake of a very dubious conception of national interests, which centered on an imprudent opposition to the anti-colonial and pro-nationalist flow of history.

My attitudes toward the war, while never losing the central conviction that the United States was engaged in Vietnam in a manner that violated the most fundamental norms of international law, shifted in the direction of viewing the tactical conduct of the war as increasingly raising questions of international criminal accountability. This shift is reflected in the later selections from my writing that emphasize the relevance of the Nuremberg Principles to the American involvement in Vietnam.[10] I became convinced that a one-sided war in which high technology weaponry was deployed against a totally vulnerable peasant society was an intrinsically criminal enterprise, and additionally almost inevitably gave rise to battlefield atrocities as mythified through treating the My Lai massacre as a singular event.[11] I was also struck by the degree to which the geopolitical status of the United States marginalized the United Nations and limited the relevance of international law to a domestic debate within the United States between the government and its critics in Congress and throughout American society.

One enduring effect of this debate was to give the American anti-war movement the confidence to challenge government policy despite the inhibitions of the Cold War that made any seeming sympathy for the Communist side in the Vietnamese struggle grounds for suspicion and media hostility, particularly in the early years of the war. It is only toward the end of the Vietnam War when the government lost the trust of a large portion of the citizenry and split the foreign policy establishment, as well as becoming clear that the sacrifice of young American lives was not going to end in a military victory, that the prudential arguments against continuing the war began to outweigh the ideological case for its prosecution. This development also had the effect of pushing public opinion in an anti-war direction.[12]

 

 

 

 

 

 

 

 

 

 

 

[1] In the midst of the Vietnam War I edited a four volume series on the relevance of international law to the policies guiding decision makers and policy advocates on both sides of the debate that raged throughout the war.

[2] See Bernard Fall, Street Without Joy: The French Debacle in Indochina (Mechanicsburg, PA: Stackpole Books, 1961).

[3] For a range of views see Jeremy R. Hammond, Obstacle to Peace: The U.S. Role in the Israeli-Palestinian Conflict (Worldview Publications, forthcoming 2015); Rashid Khalidi, Brokers of Deceit: How the U.S. Has Undermined Peace in the Middle East (Boston: Beacon Press, 2013); Peter Bauck & Mohammed Omer, eds., The Oslo Accords, 1993-2013 (Cairo, Egypt: American University in Cairo Press, 2013); For the U.S. /Israeli spin on the peace process see Dennis Ross, The Missing Peace: The Inside Story of the Fight for Middle East Peace (New York: Farrar, Strauss & Giroux, 2004).

[4] J. William Fulbright, The Arrogance of Power (New York: Random House, 1966).

 

[5] As argued in Richard Falk, Palestine: The Legitimacy of Hope (Washington, D.C.: Just World Books, 2014).

 

[6] In the Name of America (New York: Clergy & Laity Concerned About Vietnam, 1968).

[7] An important early account along these lines in the Japanese context is Richard H. Minear, Victors’ Justice: The Tokyo War Crimes Tribunal (Princeton, NJ: Princeton University Press, 1971).

[8] Justice Robert Jackson, the American prosecutor, did argue to the tribunal in Nuremberg that the legitimacy of the judgment against the German defendants depended upon the victors in the future accepting the same framework of accountability, but such words fell on deaf ears in the capitals of the world powers.

[9]The proceedings of the Russell Tribunal can be found in John Duffett, ed., Against the Crime of Silence: Proceedings of the Russell International War Crimes Tribunal, Stockholm-Copenhagen (New York: Bertrand Russell Peace Foundation, 1968).

[10] These issues were fully explored in Richard Falk, Gabriel Kolko, and Robert Jay Lifton, eds., Crimes of War: A legal, political-documentary, and psychological inquiry into the responsibility of leaders, citizens, and soldiers (New York: Random House, 1971).

 

[11] For the initial expose see Seymour M. Hersh, My Lai 4: A Report on the Massacre and its Aftermath (New York: Random House, 1970). See also Kendrick Oliver, The My Lai Massacre in American history and memory, (Manchester: Manchester University Press, 2006).

 

[12] The release of the Pentagon Papers was a milestone along the path that led from a pro-war consensus to a rising tide of opposition. See interpretation by Daniel Ellsberg, Secrets: A Memoir of Vietnam and the Pentagon Papers (New York: Penguin Books, 2002).

 

Peace and Justice for the Palestinian People: a Conversation

4 Feb

[Prefatory Note: The post below is a modified text of an interview conversation with Khourosh Ziabari, initially published on the website of the Organization for Defending Victims of Violence on February 4, 2018, <info@odvv.org>] </info@odvv.org>

 

 

Peace and Justice for the Palestinian People: a conversation

 

Khourosh Ziabari: Humanitarian crisis in Gaza has entered its 11th year as the crippling siege by Israel is making the living conditions of Palestinians more complicated with time. The blockade in what is popularly referred to as the world’s “largest open-air prison” means growing unemployment, people having intermittent access to pure water, the economy is almost dysfunctional and poor infrastructure and lack of funding make the two-million population vulnerable to heavy rains and extreme weather. The former United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories believes Israel is not doing enough to make the living conditions of Gaza Palestinians better, and the United States is also failing to play a constructive role.

 

Richard Falk is a professor emeritus of international law at Princeton University, who has published and co-edited some 40 books on human rights, international humanitarian law and the Israeli-Palestinian conflict.

In an interview with the Organization for Defending Victims of Violence, Prof Falk shared his views on the recent controversy surrounding President Trump’s proposal to move the U.S. Embassy to Jerusalem and the ongoing humanitarian emergency in the Palestinian territories.

 

Q: In a piece recently published on Foreign Policy Journal, you talked of Palestine as being a hugely discriminated against nation, which in the recent decades has undergone major hardships due to the inability or reluctance of the United Nations to take steps to balance the needs of the Palestinian people against the political leverage of Israel and its allies. The improvement of the living conditions of the Palestinians depends on a logical and justifiable way out being found to end the conflict. Is the international community really unable to come up with a sustainable and all-encompassing solution?

 

A: The failure of the international community with respect to the Palestinian people and their legitimate grievances is due to several special circumstances; most importantly, the underlying determination of the Zionist movement to control most of Palestine as delimited by the British mandate. In this respect, assertions by Israeli leaders of their desire for a political compromise should never been accepted at face value, and are patently insincere, public relations gestures seeking to influence international public opinion, and convey the false impression that Israel is seeking a political compromise with Palestine.

 

Secondly, this Zionist ambition is now strongly supported by the United States despite not being clearly articulated by the government of Israel. This obscurity, essentially a deception, allows the international community to act as if a peace process is capable of producing a solution for the conflict even though Israel’s actions on the ground point ever more clearly toward an imposed unilateral outcome, which essentially is a unilateral insistence that the conflict has been resolved in favor of Israel.

 

Thirdly, the ‘special relationship’ between Israel and the U.S. translates into a geopolitical protection arrangement encompassing security issues and even extending to insulating Israel from censure at the UN, especially by the Security Council, and making sanctions impossible to impose. In such a setting, the Israelis are able to pursue their goals, while ignoring Palestinian grievances, which results in tragedy and suffering for the Palestinian people. Given the balance of forces, there is no end in sight that might end the conflict in a fair way.

 

Q: President Donald Trump’s recognition of Jerusalem as the capital of Israel and his plan to move the U.S. embassy to this city met a big resistance at the United Nations, both on the General Assembly and Security Council levels. Why do you think the international community and even the major U.S. allies didn’t say yes to this proposal?

 

A: Trump’s initiative on Jerusalem ruptured whatever fragile basis existed for seeking a diplomatic solution for relations between Israel and Palestine. There had been a clear understanding, respected by prior American leaders, that the disposition of Jerusalem was a matter that was to be settled only through negotiations between the parties. This understanding was broken by the Trump initiative for no apparent reasons beyond pleasing Netanyahu and some wealthy Zionist donors in the U.S. Beyond this, for Trump to side with Israel on such a sensitive issue, which deeply matters symbolically and substantively, not only for Palestinians, but for Muslims everywhere, and even for Christians, damaged beyond repair the credibility of the United States to act an acceptable intermediary in any future peace process.

 

American credibility was at a low level anyway, but this latest step relating to Jerusalem, removed, at least for the foreseeable future, any doubt about the American partisan approach, and more dramatically, made it evident that diplomacy based on the two-state solution had reached a point of no return.

 

In one respect, the Trump move on Jerusalem lifted the scales from the eyes of the world. It should have been clear for some years that the size of the settlement phenomenon and the influence of the settlers, now numbering about 800,000, had made it impractical to contemplate the establishment of a genuinely independent and viable Palestinian state. As well, the U.S. had long ceased to be an honest broker in the diplomatic settings that were described by reference to ‘the peace process,’ and probably never was partisan from the outset of the international search for an outcome that was a genuine political compromise. If there is to be an effective diplomacy with respect to the relations between the two peoples, it must, in any event, be preceded by dismantling the apartheid structures that were developed by Israel over the decades to subjugate the Palestinian people as a whole and the United States must be replaced by a credible third party intermediary. Israel feels no pressure to accept such changes, and so there is no current alternative to exerting pressure on this untenable status quo through support for militant nonviolent forms of Palestinian resistance and the global solidarity movement, with a special recognition of the contributions of the BDS campaign. It may be relevant to note that the BDS Campaign has been nominated to receive the Nobel Peace Prize in 2018.

 

Q: In the recent years, many resolutions and statements have been issued in condemnation of the expansion of Israel’s settlements in the Palestinian territories occupied following the Six-Day War in 1967 by the UN General Assembly and its affiliated human rights bodies. Even the UNSC Resolution 2334 (2016) declares Israel’s settlement activity a “flagrant violation” of international law. Is the publication of statements and condemning a state, while the state itself doesn’t recognize the demands and considers them invalid, a viable solution? If the international community is convinced that Israel should stop the illegal settlements, then how is it possible to make it happen?

 

A: The continued expansion of the settlements despite their flagrant violation of Article 49(6) of the Fourth Geneva Convention is both an expression of Israel’s contempt for international law and for world public opinion. It also reveals the impotence of the UN to do anything effective to impose its will that is any more consequential than the issuance of complaints. When geopolitical realities shield the behavior of a state from international pressures, the UN is helpless to implement its resolutions, and international law is put to one side. The UN is an organization of states, and limited in its capacity to shape behavior, especially by the veto power of the five permanent members of the Security Council. As such, the UN was never expected to have the constitutional capacity to overcome the strongly held views and commitments of the five states given permanent membership and the right of veto in the Security Council in the UN Charter. The Security Council is the only organ of the UN System with clear authority to reach and implement decisions, as distinct from advisory opinions and recommendations. The Israel/Palestine conflict is an extreme version of the Faustian Bargain struck between the geopolitical power structure and global justice, which was written into the UN Charter and the constitutional framework of the UN, as well as exhibited in UN practice over the years.

 

Q: News reports and figures show that the living standards and the economic conditions in the Gaza Strip are getting worse as time goes by. The unemployment rate has climbed to 46%. Research organizations and local media say 65% of the population is grappling with poverty and the food insecurity rate is roughly 50%. How do you think the perturbing humanitarian crisis in Gaza can be alleviated?

 

A: It is difficult to comprehend accurately the Israeli approach to Gaza as its motivations are very different from its stated justifications. Israeli policy often appears cruel and vindictive, with security rationales sounding more like pretexts than explanations. Excessive force has been repeatedly used by Israel in Gaza, and little effort to achieve some kind of tolerable stability has been made.

 

Israel has rejected a series of proposals for long-term ceasefires put forward by Hamas during the past decade. Israel has periodically attacked Gaza, inflicting heavy damage on a helpless and impoverished civilian society in 2008-09, 2012, and 2014 while the international community condemned these excessive uses of force. Now that the economic squeeze is pushing Gaza once again toward the brink of a humanitarian disaster the ordeal of the nearly two million Palestinians entrapped and utterly vulnerable. The situation in Gaza is once again a matter of grave concern, with humanitarian alarms being sounded by those with knowledge of the precarious health and subsistence crisis facing the population.

 

It is unclear what Israel actually wants to have happen in Gaza. Unlike the West Bank and Jerusalem, Gaza is not part of the Zionist territorial game plan, and is not considered part of biblical Israel. To the extent that Israel is pursuing a one-state solution imposed on the Palestinians, Gaza would be likely excluded as adding its population to that of Israel would risk exploding ‘the demographic bomb’ that has for so long worried Israelis because of endangering the artificially generated Jewish majority population, and supposed ‘democratic’ control of this ethnocratic polity.

 

The Zionist project has long resorted to extreme measures to achieve and then sustain the democratic pretension of its governing process, initially dispossessing as many as 700,000 Palestinians from the territory that became Israel in 1948. This coerced dispossession during combat was combined with a post-conflict refusal to allow those who left their homes and villages during wartime any right of return. Such ethnic cleansing was reinforce by completely destroying hundreds of Palestinian villages with bulldozers. This pattern of controlling the population ratio between Jews and non-Jews has been a persistent issue ever since the Balfour Declaration was issued in 1917 when the Jewish population of Palestine was about 5%. In the early period, the Zionist effort was focused on overcoming the Jewish demographic minority status by stimulating and subsidizing Jewish immigration. Yet even after the surge in immigration prompted by the rise of Nazism and European anti-Semitism, the Jewish population of Palestine was only about 30% at the start of the 1947-48 War.

 

Israel would probably like to have Gaza disappear. If that is not going to happen, then the second best solution is to entrust Jordan or Egypt with administrative control, security responsibility, and sovereign authority. So far neither Arab government wants to assume control over Gaza. With these considerations in mind, Israel seems determined to maintain instense pressure on Gaza, allowing the population to hover around the subsistence threshold, and to signal Israeli aggressiveness to the rest of the region, asserting a military presence from time to time that seems both punitive and designed to remind Gazans that resistance on their part would be met with overwhelming lethal force causing devastation and heavy casualties, including imposing a condition of enduring despair on the civilian population.

 

 

 

The Jerusalem Votes at the UN

23 Dec

 

 

What struck me as the most significant dimension of the Jerusalem votes in the Security Council and General Assembly has been oddly overlooked by most commentary in the media. The public discourse has, of course, been correct to identify the isolation of the United States with respect to the rest of the world as well as regarding the majority position as a defiant rejection of Trump’s leadership and bullying tactics. Although as some have noted, without the bullying by Ambassador Haley (including, I will report yes votes to the president; those that vote for the resolution will not receive economic assistance in the future; we are watching; “America will remember this day;” “the vote will make a difference on how Americans look at the UN.”), there might been as many as 150 positive votes for the resolution instead of 128, with fewer abstentions (35) and fewer absences from the vote (21).

 

Nevertheless, 128-9 is a clear expression of an overwhelming moral and legal sentiment, and deserves to be respected by any government that values the role of the General Assembly as the arbiter of legitimacy with respect to sensitive global issues. Although far weaker and more subject to geopolitical manipulation than is desirable, these main political organs of the UN provide the best guide that currently exists as to what global policy should be if the global and human interest is to be protected, and not merely an array of national interests and their multilateral aggregation to achieve cooperative results.

 

What this discussion glosses over in this instance without stopping to observe its significance is the degree to which issues of substance prevailed over matters of geopolitical alignment. Not one of America’s closest allies (UK, France, Germany, and Japan) heeded the fervent arguments and pleas of Haley and Trump. Beyond this, every important country in the world backed the General Assembly Resolution on December 21, 2017 regardless of geography or political orientation (China, Russia, India, Brazil, Turkey, India, Pakistan, Saudi Arabia, Iran). This unanimity enhances the quality of the consensus supportive of the resolution repudiating Trump’s arrogant decision to recognize Jerusalem as Israel’s capital as ‘null and void.’ Such an impression is strengthened by listing the nine governments that voted against the resolution (Guatemala, Honduras, Marshall Islands, Israel, Miscronesia, Nauru, Palau, Togo, and the U.S.).

 

Should these striking results be interpreted as the demise, or at least twilight, of geopolitics? Any such speculation would be wildly premature. What seems to have swayed many governments in this case is the negative fallout expected to follow from Trump’s unilateralism that disregards decades of international practice and agreement about the status and treatment of Jerusalem, as well as the gratuitous neglect of Palestinian rights and aspirations by taking such an initiative without even pretending to take account of Palestinian grievances. In this regard, Trump’s poor international reputation as a result of pulling out of the Paris Climate Change Agreement, decertification of the Nuclear Agreement with Iran, and withdrawal from negotiations to fashion an agreed approach to the global migration crisis undoubtedly help tip the scales on the Jerusalem resolution, especially among European governments. Trump’s unpopular implementation of his diplomacy of ‘America, First’ is arguably morphing into the disturbing perception of ‘America, Last’ or the United States as ‘rogue superpower.’ Consciously or not, the UN vote was a distress signal directed at Washington by friends and adversaries alike, but as near as can be told, it will be disregarded or angrily rebuffed by the White House and its spokespersons unless they decide to pass over these happenings in silence.

 

As has been observed, the Jerusalem decision was not part of a carefully crafted international approach to the Israel/Palestine struggle. It seemed mainly to be a payoff to domestic support groups of Trump’s presidential campaign in the United States (large pro-Israeli donors and Christian Evangelists wedded to a (mis)reading of the Book of Revelations), as well as a further display of post-Obama affection for Bibi Netanyahu. Apparently, for Trump being adored in Tel Aviv seems worth being discredited with allies and leading states throughout the rest of the world. As for the threatened major aid recipients (Afghanistan, Egypt, Pakistan, Nigeria, Ethiopia, Tanzania, and South Africa; Kenya was absent during the vote); it was impressive that all of these states ignored the threat and voted for the resolution. If Washington follows through on withholding aid it will certainly not serve America’s strategic interests as previously understood, particularly in the Middle East, but also in Africa. Yet if it fails to carry its threat, its diplomatic posture will be seen as that of a novice poker player whose untimely bluff has been called.

 

There is also the question of ‘what next?’ Will the Jerusalem resolution be remembered as a moment in time to be superseded by contrary behavioral trends? In this regard, the U.S. now has its own chance to exhibit defiance and disrespect by quickly and ostentatiously moving its embassy to Jerusalem, which will of course give rise to further anger. The Turkish president, Recep Tayyip Erdoğan has already seized the occasion to reassert its prominence in the Muslim world, first by co-sponsoring (with Yemen) the resolution, and then by explicitly calling on the U.S. Government to rescind its decision to recognize Jerusalem as the capital of Israel. I would darkly imagine that the Trump presidency would opt for World War III before it backed down on Jerusalem.

 

As widely reported, the Jerusalem resolution is symbolic in nature, and yet it does have serious political consequences for all relevant political actors. Does it clear a political space for the European Union to play a central role in seeking to revive a diplomatic approach on a more balanced basis than what could have been expected from Washington? How does the U.S. Government negotiate the fine line between disregarding the resolution and harming its foreign policy objectives in the Middle East? How unyielding should the Palestinian Authority be about insisting on a parallel recognition of East Jerusalem as the capital of Palestine before it agrees to participate in negotiations with Israel? Will Turkey seek further steps at the UN and elsewhere to back up the resolution, including possibly fashioning realignments throughout the Middle East? Will the second tier of officials in the Trump Administration create pressure to create a foreign policy that more closely reflects U.S. national interests by taking better account of the many dimensions (digital, economic, security) of global integration?

Recognizing Jerusalem as Israel’s Capital

15 Dec

 

[Prefatory Note: The following post is a modified version of an article published on December 8th in Middle East Eye. It considers the normative and geopolitical sides of Trump’s unilateralism. Apologists claiming Trump finally acknowledged the operational reality that Jerusalem has been serving as the capital of Israel for the last 50 years, and the disruptive effects have been exaggerated as Saudi Arabia has not reacted in a strongly negative manner. Critics, including myself, regard the initiative as a gratuitous slap at the Palestinians and a further confirmation of Trump’s disregard of international law, international morality, and the authority of the United Nations. The status of Jerusalem serves as a focal point for the tension between the old geopolitics of hard power realism and the normative geopolitics of soft power new realism that is struggling through a birthing process in many settings. In my view the resolution of this tension will shape the trajectory of 21st century humanity. In other words, the stakes are high.]

 

Recognizing Jerusalem as Israel’s Capital

 

With the deftness of a bull in a china shop, Donald Trump has ignored the advice of several close advisors, disregarded the fervent pleas of several of Israel’s closest Arab neighbors, ignored warnings of America’s traditional allies in the Middle East and Europe, and ruptured a key element of an international consensus that had long prevailed at the UN, by going ahead to proclaim formally Washington’s view that Jerusalem is and will be the capital of Israel. Such a declaration serves also to rationalize the prior pledge to move the American Embassy from Tel Aviv, the city where every other country in the world insists on maintaining its government to government relationship with Israel, to the city of Jerusalem, sacred to all three of the monotheistic religions.

 

The most obvious question to pose is one of motivations: Why? Strange as it may seem to those living in the Middle East, the most persuasive explanation is that Trump saw this act of recognition as an opportunity to show his most fervent supporters at home that he was being true to his campaign promises. Trump has been frustrated during the first year of his presidency by his embarrassing inability to carry out the program that helped get him elected in 2016. It is true that by taking this further step toward relocating the American embassy Trump’s popularity in Israel spiked and as he has pointed out he is actually doing what his predecessors and Congress has long proposed.

 

In essence, Trump seems to have taken this internationally controversial step because he cares about pleasing the Christian Zionists and the Israeli Lobby in America more than he does about ruffling the feathers of UN diplomats, possibly inflaming the Arab masses, removing the last shred of doubt among Palestinians that the U.S. could ever be trusted to play the role of ‘honest broker,’ or even partisan intermediary, in the pursuit of a two-state solution, and perhaps most of all, connecting American foreign policy in the turbulent Middle East is some durable and coherent way with strategic national interests in regional stability.

 

From this perspective, Trump has once again demonstrated his extraordinary talent for choosing the worst possible alternative in delicate international situations where dire consequences could follow from the wrong policy turn, and the rewards of going it alone seem minimal and transient, at best.

This vivid instance of Jerusalem unilateralism parallels the geopolitical stupidity of withdrawing from the Paris Climate Change Agreement of 2015 a few months ago. There also the Trump approach to foreign policy seemed perversely designed to burnish its already secure reputation as the first rogue superpower of the nuclear age. This global spoiler role is also dangerously evident in the apocalyptic threat diplomacy adopted by Trump in the Korean Peninsula as a response to Kim Jong-un’s nuclear weapons program, which include provocative bluster, weapons developments, and grave risks of mutual miscalculation.  

 

Liberal opinion in the U.S. and abroad lamented the Trump initiative on Jerusalem for the wrong reasons. Especially prominent was the assertion in various forms that Trump had damaged, if not destroyed, the ‘peace process,’ and its special role as convening party. Such a concern presupposes that a peace process sufficiently existed to be susceptible to being destroyed. While promising ‘the deal of the century,’ Trump turned over his supposed peace offensive, to pro-Zionist extremists and settler fundamentalists (David M. Friedman, Jared Kushner, and Jason Greenblatt) whose obvious goal was not peace, but putting the finishing touches on what they regarded as an Israeli victory that only needed a face-saving exit arrangement for the Palestinian Authority to complete the job. Working in tandem with the Netanyahu leadership, the Trump effort has been so far focused on killing ‘the two-state solution,’ at least in its claim to satisfy reasonable Palestinian expectations of self-determination in the form of a viable and truly independent sovereign state with its capital in East Jerusalem. In its place, one supposes that the Trump ‘dream team’ will come up with a non-viable polity in what remains under Palestinian control in the West Bank, either tied to Gaza or separated in some enduring way, affronting reality by calling the plan a fulfillment of two-state expectations, and dismissing Palestinian objections as ‘rejectionism,’ a stubborn insistence on having it all, and in the end, a take it or leave it version of Hobson’s Choice.

 

As matters now stand, the status quo is also very unfavorable from the point of view of the Palestinian national struggle and the implementation of the international community’s version of a reasonable compromise. This status quo of occupation and dispossession facilitates the continuing conversion of the 1967 ‘occupation’ of Palestinian territory into a permanent reality that unlawfully blends the annexation of the West Bank and East Jerusalem with the maintenance of control over the Palestinian people by means of apartheid structures of subjugation. If this assessment is correct, then moving the American Embassy to Jerusalem can be seen as supportive of Netanyahu’s apparent conception of the end-game of this hundred year struggle between the national aspirations of these two embattled peoples. In this regard, the bluntness of the Trump approach exposes to the world an ugly reality that should have been obvious all along to anyone looking at Israeli behavior with a critical eye, or grasping the policy fallout from the ‘America First’ mantra.

What gives this regressive turn its plausibility, posing yet another challenge to the Palestinian movement, is the blind eye that the new look in Riyadh has turned toward even the Judaization of Jerusalem, which would seem to confirm the Saudi priority of geopolitical collaboration with the United States and Israel, even at the expense of fundamental Islamic concerns and the maintenance of solidarity in the Muslim world. In this sense, it is well to take some note of the declaration of the Organization of Islamic Cooperation (OIC), endorsed by all 57 of its member states (including Saudi Arabia), that Jerusalem is the capital of Palestine, denying Israel any right to a formal governing process in the city.

 

While this substantive analysis helps us grasp the geopolitical context that makes recognition of Jerusalem as Israel’s capital a kick in the groin of Palestinian delusions about a viable peace diplomacy while at the same time leading most Israelis to dance in the streets. It also underscores the hypocrisy of the international community’s call for reviving the peace process when it should long have been evident that Israeli settlement expansion as well as Tel Aviv’s approach to Jerusalem had passed the point of no return, and thus the occasion for abandoning an unworkable diplomacy, and facing with honesty the daunting question—‘What next?.’ Israel’s recent behavior makes it clear for all except hasbarists that the Israeli government has no current willingness whatsoever to end the conflict if this means creating an independent Palestinian state delimited by 1967 borders, thereby encompassing West Bank, Gaza, and East Jerusalem. For Israel the alternatives are perpetuating the apartheid status quo or allowing for the emergence of ‘Bantustan Palestine’ as the diplomatic price that the Netanyahu leadership is willing to pay for a certification of ‘peaceful solution.’

 

From the issuance of the Balfour Declaration in 1917 to this historic moment acknowledging Israel’s claims to Jerusalem, Zionism and since 1948, the state of Israel, have disseminated a double-coded message to the world. In its public utterances, Israel’s public posture is one of a readiness for compromise and peaceful coexistence with the Palestinians, while its practices and actual objectives, can only be understood as the step by step consistent pursuit of the visionary ideal of Greater Israel or Our Promised Land. The present Israeli ambassador to the U.S., Ron Dermer, in the course of thanking Trump for standing so strongly with Israel, told an American TV audience that Jerusalem has been truly the capital of the Jewish people for 3,000 years. No where has Israel’s double-coding been more evident than in relation to Jerusalem. It uses the grandiose claims of Jewish religion tradition when it can and the somewhat more constraining diplomacy of statecraft when it offers opportunities, and does its best to avoid altogether the precepts of international humanitarian law or the UN consensus.

 

On the public discourse side stands Israel’s public acceptance of the partition arrangements embodied in General Assembly Resolution 181, which included the internationalization of Jerusalem under UN administration. More critically viewed from a behavioral discourse perspective, Israel’s actual conduct flagrantly consistently defied international law by formally enlarging and annexing Jerusalem as ‘the eternal capital’ of the Jewish people and manipulating the demographics and cultural heritage of the city in ways that made it seem more credible to regard the whole of Jerusalem as a Jewish city.

 

It is difficult for even notorious Israeli apologists, such as Elliot Abrams or former American ambassadors to Israel to defend the actual Trump decision. Such apologists prefer to adopt a default position. Yes, the timing of the White House initiative was tactically questionable, but its international condemnation greatly exaggerates its importance and inappropriateness. They view criticisms and concerns as overblown, amounting to a display of ‘heavy breathing.’ In effect these apologists agree with Trump’s core contention that the acceptance of Israel’s claim to have its capital in Jerusalem, is an overdue recognition of reality, nothing more, nothing less, and that the rest of the world will have to learn to live with this recognition. Time will tell whether this downplaying of fears of renewed violence of resistance and anti-Americanism are anything other than a feeble attempt by apologists to reaffirm Israel’s legitimacy in the face of what should turn out to be a geopolitical fiasco.

 

What should dismay the region and the world the most about Trump’s Jerusalem policy is its peculiar mixture of ignoring law, morality, and the international consensus while so blatantly harming America’s more constructively conceived national interests and tradition of global leadership. This mixture becomes toxic with respect to Jerusalem because by humiliating the Palestinian national movement and ignoring the symbolic status of Jerusalem for Muslims and the Arab peoples, it makes violent extremism more likely while lending support to existing postures of anti-Americanism. How incoherent and self-defeating to proclaim the defeat of ISIS and political extremism as the top American priority and then making this Jerusalem move that is virtually certain to produce populist rage and an extremist backlash. No ISIS recruiter could have wished for more!