Tag Archives: Nuremberg Judgment

Visiting Nuremberg, Reflecting on the Ambiguous Legacies of Nuremberg

2 Oct

 

I spent two days at Nuremberg to attend the Nuremberg International Human Rights Award ceremony on September 22, 2017. The reason we were in Nuremberg was that my wife had been a member of an international jury that selects an awardee every second year. The recipient in 2017 was the ‘Caesar Group,’ the undercover work of an official Syrian police photographer, who had managed to smuggle out of Syria a hard drive with 28,000 photographs of 6,000 prisoners of Bashar al-Assad’s detention centers in Damascus. These extraordinary images of tortured and dead bodies were truly horrifying in ways that statistics or even first-hand stories told by victims and their families, rarely are. The name Caeser is a pseudonym for this brave Syrian photographer who is living incognito in Britain, understandably fearing for his life. The Nuremberg award honors not only Caesar, but those who helped in the complex work of archiving the photographs and doing whatever possible to disseminate them to the world. The Caeser Group also performed the grim task of giving several family members a morbid closure about the whereabouts of their loved ones who had disappeared without a trace into the dreaded Syrian prison archipelago, and were now identified as among the victims of the brutal Damascus regime.

 

At the very moving ceremony held in the grand Nuremberg Opera House some excellent orchestral music of a contemporary Syrian-American composer, Kareem Routom, and a powerful address by a French journalist, Garance Le Caisne, who accepted the award on Caeser’s behalf, expressing strong sentiments of admiration for his courage, the importance of such documentation, as well as reminding the audience that other political actors in the complex Syrian descent into Hell these past six years were also responsible for atrocities against the civilian population of Syria, although there seems to be agreement among specialists that the Assad regime is responsible for upwards of 90% of civilian casualties.

 

There were also well-crafted speeches by Kenneth Roth, head of Human Rights Watch, which had convincingly documented the authenticity of Caesar’s photographs, and Stephen Rapp, a former American ambassador, who had been a chief prosecutor at the international criminal trials held in the aftermath of the Rwanda genocide and at the Special Court constituted to address crimes committed in the Ivory Coast.

 

The speeches of Roth and Rapp focused on the desirability of bringing Bashar al-Assad to trial as a war criminal, and the formidable obstacles to doing so. This naturally led me to think about the legacy of the Nuremberg Trials held nearby in this city in 1945. The Nuremberg Judgment found all but three of the 22 Nazi leaders being prosecuted as guilty of war crimes, with twelve sentence to death, three to life imprisonment, four to long-term imprisonment, while three were actually acquitted. Ever since the Nuremberg trials and verdict have been memorialized as not only punishing those guilty of the most evil imaginable behavior but also for establishing the legal principle that those who act on behalf of a sovereign state, even at its highest levels of political leadership and military command, remain subject to accountability for severe violations of international criminal law. The overall significance of this experience was given an authoritative formulation in the Nuremberg Principles adopted by the UN General Assembly on the recommendation of the International Law Commission in 1947 [GA Res. 177(II)]. The trial was also praised at the time for providing the defendants with due process of law, which was reflected in the sentences that distinguished degrees of individual guilt and variations in the quality of incriminating evidence in the minds of the judges.

 

There was also a certain moral and political ambiguity that created dark clouds in the skies above the Nuremberg Proceedings in 1945 that most commentators at the time refrained from noticing lest the party be spoiled. The defendants were not allowed to excuse their actions or even make reference to war crimes of the victorious nations in the war, which engaged in a variety of tactics, especially strategic indiscriminate bombings intended to terrorize and demoralize the civilian populations of Germany. Such tactics cannot be reconciled with international law or international morality.

 

This impunity of the accusers became more difficult to obscure in the companion Tokyo War Crimes Trials held against surviving Japanese leaders, especially in view of the use of atomic bombs against Hiroshima and Nagasaki despite indications that Japan was at the time prepared negotiate terms of surrender similar to what was agreed upon following the atomic attacks. There is little doubt that if either the Germans or Japanese had used atomic bombs against Allied cities, and then later lost the war, such acts would have been criminalized in a confident and convincing manner. It not surprising that within Japan, in particular, critics described the war crimes trials as ‘victors’ justice.’ As well, there was a long dissent and finding of ‘not guilty’ by the Indian judge on the Tokyo War Crimes Tribunal stressing the inclusiveness of evidence charging the Japanese defendants with aggression (‘Crimes Against Peace’) in view of the pre-war policies of economic strangulation pursued by the United States. Unlike Nuremberg, the Tokyo tribunal included judges other than those drawn from the ranks of the four main victorious Allied powers in the European theater of combat. For many years it was almost impossible to find Judge Radhabinod Pal’s lengthy opinion in even the best American libraries. In Japan Pal is honored to this day, including a statue to his memory in the notorious Yasukuni Shrine honoring Japan’s war dead and serving recently as a rallying cry for the rebirth of a version of Japanese militarized nationalism.

 

There were several notable attempts to find a middle ground to address this moral and legal deficiency at the heart of what was achieved at Nuremberg. The chief American prosecutor at Nuremberg, Robert Jackson (previously a member of the U.S. Supreme Court) indicated in his historic closing statement that the validity of the Nuremberg results would be tested in the future by whether the countries that pass judgment against these Nazi defendants abide by the same framework of accountability relevant to their future behavior. The eminent German philosopher, Karl Jaspers, argued in a similar vein that the punishments inflicted on these German defendants will be regarded as justified if and only if those governments that imposed the punishments uphold similar standards with respect to the future behavior of their own political and military leaders.

 

We all should know that the loophole of victors’ justice has not been closed. Quite the contrary, the United States and Russia, the two main victors in World War II, have done their best to obstruct any development of international criminal law that might hamper their freedom of maneuver, and refused all efforts at accountability that might apply to their own leaders or those of their allies, while still self-righteously pressing the case for imposing criminal responsibility on adversaries.

 

Syria and the Nuremberg ceremony fit into this ambiguous legacy, suggesting the relevance of this concern. The Roth/Rapp speeches were exclusively directed at ‘the enemy,’ without even considering whether there should be criminal responsibility imposed on other actors, including the United States. It has always been the case that the Western liberal temperament, especially as orchestrated by Washington, pushes ahead with the implementation of international criminal law without ever compromising the geopolitical structure that imposes responsibility selectively while invoking the authority of law with great moral pretension. Such a dynamic confuses law with power, and somehow turns a blind eye to the uncomfortable realization that law is not fully law that treats equals unequally.

 

It can be argued that so long as the law is applied in accordance with due process against those that have committed severe crimes it is reasonable to claim that justice is being served. Surely, we should not shed tears for Bashar al-Assad should he ever be hauled into court to defend against his documented record of bloody atrocities committed over and over again against his own people. Not tears, but still concerns that such proceedings give the high moral and legal ground to the most dangerous and powerful political actors whose behavior remains outside the law. Besides the misleading jurisprudential character of geopolitically grounded impunity, there is the impression created that the West remains the guardian of civilized values although it has been more responsible during the last several centuries for far more massive human suffering than those being solemnly apprehended.

 

One final observation: this gap in the implementation of international criminal law has been challenged by civil society initiatives, starting with the Bertrand Russell Tribunal organized during the Vietnam War. This symbolic

contribution to the idea of international criminal responsibility has been carried forward over the years, above all, by the Permanent Peoples Tribunal established in 1976 under the inspirational leadership of the Italian jurist, Lelio Basso. A variety of independent initiatives along these lines have occurred over the years at times when neither governments nor the UN would respond to either war crimes or severe violations of human rights. As important as these events have been in keeping the flame of global justice burning, there is no capacity to make these judgments enforceable or otherwise challenge the discretionary prerogatives of geopolitical actors and repressive governmental regimes. The gap remains. The human costs remain.

 

In Nuremberg it is unavoidable to reflect upon the distinctive history of the city. This history weighs heavily not only on the minds of visitors but more tellingly on the city’s citizens in several notable respects. First, and above all, is the association of the city with the Nuremberg Rallies held each year on the vast parade grounds and surrounding park. Secondly, there are the notorious Nuremberg Laws that first formalized the anti-Semitic persecution directed at Jews. Thirdly, is the keen awareness, especially on the part of older residents, that 90% of the old city of Nuremberg was destroyed by the Allied bombing campaign. Thirdly, in the early years after 1945 there was a serious tension between those who wanted to forget the Nazi past of the city and those who insisted on remembrance, remorse, and the extensive documentation of the horrors. Fourthly, what prevailed in the end was the view that the symbolic role Nuremberg played in the rise and practice of Nazism and Hitler throughout Germany should be fully exhibited, but accompanied by the careful avoidance of any glorification of Nazi pageantry. For instance, the museum dedicated to the Nazi experience is called ‘a documentation center,’ and its architecture is intended to convey a sense of violation and menace. There is also a reluctance to show Leni Riefenstahl’s extraordinary propaganda film, “The Triumph of the Will” for an acknowledged fear that it might stimulate feelings of nostalgia rather than remorse. Finally, for those willing to probe a bit more deeply into the Nuremberg story in bygone centuries one encounters a disquieting series of pre-modern incidents of anti-Semitic persecution of Jews, common throughout Europe at the time, but still inevitably part of the history of this now vibrant and seemingly normal city.

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Is Genocide a Controversial International Crime?

30 Jul

Why ‘Genocide’ is still a Controversial Crime?

 

In this strikingly original, strange, and brilliant book, Philippe Sands raises a haunting question among a tangle of other intriguing issues discussed throughout East-West Street: On the Origins of Genocide and Crimes against Humanity (New York: Knopf, 2016). It is at once a plural biography (with a bit of autobiography thrown in), a jurisprudential fairy tale, and a searing account of the horrifying impact that vicious Nazi policies had on the lives of the author’s family members as well on those of his human rights heroes. The haunting question is this: was it a wise and practical decision to keep the crime of genocide from being part of the international criminal law framework used to assess the individual accountability of surviving Nazi political and military leaders, and then subsequently in dealing with past and present mass atrocities?

 

Reflecting my own interest over the years in the use and misuse of the language of genocide, I found this to be the most provocative and enduring dimension of this multiply fascinating book in which Sands exhibits his versatility as jurist, legal practitioner, investigative journalist, and amateur historian of the Holocaust as it victimized one small region in contemporary Poland that happened to be the birthplace of his grandfather as well as two of the most renowned contributors to the development of international criminal law of the past century. The book’s title is obscure until we readers discover that East-West Street runs the length of the small town in contemporary Poland where these three families originated, and resided, until the momentous events of the 1930s forced them to seek refuge by moving Westwards.

 

East-West Street can be read from many different angles, divided into no less than 158 short chapters besides a prologue that explains how such an unusual literary/intellectual journey got its accidental start with a lecture invitation to the author and an epilogue that attempts to summarize the juridical interplay between the two prime architects of core international crimes (Sir Hersch Lauterpacht and Rafael Lemkin) and the crimes themselves (crimes against humanity and genocide). What creates the dramatic tension in Sands’ treatment of this interplay is the contrast between a jurisprudential logic that focuses on crimes committed against individuals as contrasted with a competing logic that emphasizes crimes against groups. Also at play for Sands are the contrasting personalities and legal approaches of Lauterpacht, the cool, pragmatic, revered professorial insider, and Lemkin, the emotionally driven, obsessive outsider who dedicated his adult life to lobbying governments to support genocide as a crime, and somehow managed to get results.

 

In the background of this titanic struggle of ideas, were the personal stories of the individuals involved, which, in effect, provided the private motivations for such influential public acts. An extraordinary coincidence that Sands puts to excellent literary use arises from the simple fact that both Lauterpacht and Lemkin were connected in their early lives and studies with a small town, variously named, that changed hands eight times between 1914 and 1945, being governed at different times by Germany, Poland, and the Soviet Union. Its most durable name during the period covered in the book is Lemberg, although it is today known by its Polish name, Lviv. What strains credibility almost to the breaking point is that Sands’ own grandfather, Leon Bucholz, also was born in Lemberg, and it is around the lives of these three men of the law that Sands weaves a complex narrative structure that is surprisingly readable. Much of the book is devoted, with passionate attention to the minutest detail, to how their personal lives and sensibilities were shaped by their departure from the Lemberg before it fell under Nazi occupation, and by the pain associated with the wrenching reality of losing contact with their families left behind. Only belatedly, years later did they each discover the ghastly experiences of lethal victimization experienced by family members after the Nazis took over what had then been Polish sovereign territory. It was striking that only silence could accord dignity to occurrences that were evidently experienced as unspeakable, paralyzing a sensitive moral imagination.

 

Against such a background it is to be expected that the book examines closely the person and behavior of Hans Frank, one of the 21 Nazis prosecuted at Nuremberg, who served as the cruel and devoted Governor General of Poland during the war years when the country fell under German occupation, and became the most notorious killing field of the Nazi era. It is also highly relevant that the three men whose lives and careers are the focal point of the narrative, given further reality by interspersed family pictures and documents, were Jewish, although none with any pronounced religious commitment. Yet their lives and careers were multiply determined by this Jewish identity, and what this meant during a period of unprecedented mass persecution and extermination. This interest in Frank is reinforced by Sands’ extraordinary collaboration with Franks’ son, Niklas, with whom he visits the Nuremberg courtroom where 68 years earlier a death sentence had been imposed on his father. Not to be content with the involvement of Niklas, Sands’ also persuades Horst, son of Otto von Wächter, who administered for Nazi rulers an area that included Lemberg, and had earlier been a classmate of Lauterpacht in the law school of the local university, to assist in the reconstruction of the events. These intergenerational connections led Sands to write the screenplay and perform in a documentary film, My Nazi Legacy: What Our Fathers Did, which had its 2015 premiere at the Tribeca Film Festival, and won recognition and awards.

 

Such an attempt at reliving of these historical events illustrates the contrasting adjustments to the present, with Niklas feeling that his father fully deserved the punishment he received at Nuremberg, while Horst exhibits a morbid pride, remembering his father’s prominence without any sign of shame or even regrets about his father’s role in carrying out the evil policies of the Nazi occupiers. Philippe Sands positions himself both within and without this apocalyptic past, trying to pull the pieces together in a coherent multi-dimensional account without losing contact with his own personal engagement in this overwhelming family tragedy.

 

Putting to one side the intriguing biographical and autobiographical levels of Sands’ construction of these various lives, I wish to concentrate my observations on the legal legacies associated with Lauterpacht and Lemkin,

depicted with such vividness throughout the book, reaching their climax at Nuremberg. As Sands observes, crimes against humanity (CAH) and genocide were both radical and innovative juridical ideas seeking to criminalize Nazi atrocities. CAH focused on protecting the individual against the criminality of any state including one’s own, while genocide was conceived to criminalize the mass killing of identifiably distinct ethnic or religious groups. Lauterpacht more or less invented CAH with the intention of repudiating the impunity that traditionally attached to wrongdoing by a sovereign government against individuals subject to its territorial jurisdiction and thus insulating those who acted on behalf of the state from any kind of personal accountability. CAH mounted a legal challenge directed at unconditional territorial sovereignty and the prevalence of absolute monarchy, which had long dominated the state-centric world order established in Europe by the Peace of Westphalia in 1648. Such impunity continued to be a feature of nationalist ideology despite the French Revolution and the emergence of democratic constitutionalism. The numerous subsequent efforts to make governments internally accountable for their acts through law and a variety of constitutional procedures, including elections, did not extend to external behavior. What made CAH such a radical step forward was this insistence on some measure of external or international accountability by means of law.

 

Lemkin, on his side, invented the crime of genocide, including even the word, almost all by himself. He was guided by the unwavering belief that criminalizing the kind of racialist policies put into practice by Nazi Germany was urgently necessary to save civilization from the recurrence of barbarism. It seems that Lemkin was initially disposed to criminalize such behavior by his shocked reaction to the mass killing in Turkey of Armenians in 1915, and the absence of any punitive international response embedded in international law. He believed fervently that the deadly political virus giving rise to such collective behavior was a distinct form of criminality that should never be conflated with a series of separate criminal acts, however severe, that were directed at individuals.

 

I would have thought that there was every reason to support both forms of criminality in reaction to the Nazi experience, and to a certain extent, so does Sands. The main technical obstacle, only superficially discussed by Sands, to the prosecution of these crimes at Nuremberg was the prohibition against retroactive applications of criminal laws. In fact, the Nuremberg Judgment devoted considerable energy to demonstrate its respect for the prohibition, endorsing CAH only if the acts in question could be connected with the onset of the war in 1939; in other words, from 1933 to 1939, the early years of the Nazi regime, the wrongdoing of those acting on behalf of the German government continued to be internationally shielded by impunity. Subsequently, the adoption by the UN General Assembly of the Nuremberg Principles, ratified now by more than a half century of state practice gives CAH the status of obligatory norms under customary international law, no longer necessarily linked to aggressive war. More than this, these Principles have come to be regarded as ‘peremptory norms’ or simply jus cogens, that cannot be altered by governmental action, and can be changed only through their replacement by another peremptory norm.

 

Genocide has had a somewhat similar intellectual voyage after being sidelined at Nuremberg to Lemkin’s great disappointment. His personal crusade to achieve the inclusion of genocide among the crimes charged against the Nazis failed. Undeterred by this setback, Lemkin’s unwavering perseverance after Nuremberg was soon rewarded. The Genocide Convention came into force in 1950, and as Sands observes, almost instantly genocide became the ‘crime of crimes,’ the most stigmatizing form of criminality whose commission results in a permanent tainting of the national character of a sovereign state found to have been guilty of genocide. There have been various allegations of genocide over the decades, with Cambodia, Bosnia, and Rwanda being among the most notorious instances.

 

Sands situates himself not quite equidistant in relation to these two jurisprudential giants. His own academic life and personal associations disposed him to side with Lauterpacht, celebrating his success in introducing CAH into the fabric of the Nuremberg experience and from there, to become a critical norm in the emergence of international criminal law, and a featured crime embedded in the Rome Statute that creates the legal framework for the International Criminal Court. Sands is unabashedly appreciative, even awed, believinging that Lauterpacht was recognized as “the outstanding legal mind of the twentieth century, and a father of the modern human rights movement.” [loc. 254] Lauterpacht, as an influential Cambridge professor later elected to the International Court of Justice became a member of the British establishment, and was professionally admired for his prodigious output as a scholar that showcased his committed, yet cautious approach to the development of international law. For Lauterpacht this development to be authentic had to arise from the practice of sovereign states. He had a keen appreciation of the limits of what was politically feasible and legally appropriate, and was respectful toward patterns of statecraft, possibly reflecting his exposure while a student to the great Austrian formalist and positivist, Hans Kelsen. In a book built around the organic links between the personal and public, it is hardly surprising that Sands turns out to have been a student at Cambridge and that Eli Lauterpacht, the jurist son of Hersch, was his teacher and a collaborating source of information about his famous father. This contributes one more instance of Sands’ interest in fathers and sons. Unfortunately, for his scheme of things, Lemkin never married and had no sons.

 

The older Lauterpacht was openly skeptical of genocide, viewing it as ‘impractical,’ even an impediment to the realistic development of international law. Sands is never fully clear as to why a crime that seemed to depict the very essence of the Nazi victimization of Jews and others, should have been put aside on grounds of practicality in the lead up to the Nuremberg proceedings. He does mention in passing American and British reluctance to put such a crime into the indictment at Nuremberg was related to the rattle of skeletons in their respective historical closets: the systematic decimation of native Americans and a variety of British colonial practices. According to Sands, “Lauterpacht never embraced the idea of genocide. To the end of his life, he was dismissive, both of the subject, and more politely, of the man who concocted it, even if he recognized the aspirational quality.” [loc.6700] Sands does refer to the problematic aspects of genocide in various places—especially a lawyer’s difficulty of finding strong enough evidence of the appropriate criminal intent to convince a court of law, considering that those engaged in genocide rarely leave a paper trail that satisfies those sitting in judgment and aware that to obtain a guilty verdict in responses to genocide is an indirect punishment of a nation and its people as well as of the individuals charged.

 

In this regard, despite the crime of genocide not being part of the formal proceedings at Nuremberg, Germany has been convicted of ‘genocide’ in the court of public opinion, and Germans whatever their relationship to the Nazi experience seem destined to live perpetually under this dark cloud. As many have observed, and I have experienced, this deep German consciousness of historic guilt explains an excessive deference to the policies of the state of Israel and the related fear that any criticism of Israeli behavior, however justified, will be perceived as anti-Semitism. In this respect, there is a real objection to the formal and informal allegations of genocide because it imposes guilt not only on individuals who acted for the state but on the nation as a whole. There is a related issue, not raised by Sands, of the degree of complicity with Nazism that it is fair to attribute to the German people as a whole, and whether this complicity should cast its shadow over future generations.

 

I have had an interest in the embittered standoff between the Armenian diaspora and Turkey over the redress of historic grievances relating to the tragic events of 2015. To resolve this standoff depends exclusively on the willingness of Turkey to issue a formal acknowledgement that the wrongs endured more than a century ago by the Armenian people constituted genocide. No lesser form of apology by Turkey even if accompanied by initiatives that keep historical memories alive via a museum, educational materials, and commemorative events will overcome this Armenian insistence, supported by many Western governments, that Turkey admit genocide. Sands appears sympathetic with the difficulty posed by this apparent fetishization of genocide, writing, “[i]t was no surprise that an editorial in a leading newspaper, on the occasion of the centenary against Armenians, suggested that the word ‘genocide’ may be unhelpful, because it ‘stirs up national outrage rather than the sort of ruthless examination of the record the country needs.’” [loc. 6618]

 

Questioning the Armenian insistence on genocide has become political incorrect even though the crime was unknown in 1915 when the offending behavior took place and the modern state of Turkey did not then exist as it only came into existence in 1923. Of course, such legalistic considerations will never resolve the controversy as what is deeply at stake is the way historical memories should be inscribed on political consciousness of both victim and perpetrator societies, as well as in authoritative public accounts. It is plausible to admit that what happened a hundred years would have qualified as the crime of genocide if it took place after 1950. The case is further complicated because many Turks continue to subscribe to a historical narrative that claims that the massacres resulted from excessive uses of force in a wartime situation in which Armenians were seen to be a subversive presence siding with the Russian adversaries of the Ottoman Empire in World War I and included occasions on which Turks were also slaughtered. This counter-narrative complicates any acknowledgement by the Turkish government of genocide as it would agitate the volatile ultra-nationalist sentiments that dominate the extreme right in the country.  

 

It is understandable from Armenian perspectives that only an admission of ‘genocide’ is capable of encompassing the magnitude of the wrongs suffered by the Armenian people. There is no other word with comparable stigmatizing power. It was this stigmatizing power that led to Bill Clinton in 1994, while president of the United States, to issue his notorious order that the word ‘genocide’ should not be used by government employees with reference to the massive killing taking place in Rwanda. Clinton evidently feared that the mobilizing effect of labeling these events as genocide would exert unwanted pressure on the United States to intervene to stop the killing.

 

This is the meeting point of the genius of Lemkin, and the worldliness of Lautherpacht, with Sands sensitive to the virtues and limitations of both viewpoints although leaning toward the Lauterpacht approach. Of course, the German guilt is quite different in its essentials from the Turkish reality. A Turkish admission of genocide, should it ever be made, would not be internalized in the manner forced upon Germany by the denazification program implemented by the victors after World War II. It is relevant to realize that Armenian genocide did not emanate from an extremist racialism that was so closely connected with Hitler’s rise to power based on virulent anti-Semitism.

 

In one sense Lemkin has been too successful. In his insistence that what the Nazis were doing to Jews, and other peoples, was a crime against the group, he unwittingly succeeded in elevating genocide above crimes against humanity, and thereby weakened Lauterpacht’s interest in promoting international accountability for crimes without undermining peace among states. There are other concerns. If genocide if read backward into history, as in the Armenian case, it opens a Pandora’s Box that intensifies numerous bitter memories of the past, reopens wounds, and seems to unduly burden present generations with a legacy of criminality that was the work of those no longer alive. What is worse, the Holocaust as the context in which the crime was formalized operates as a standard of comparison, the crime of crimes that lies behind the legal conceptualization, which discourages its acknowledgement by political entities that might be ready to issue an apology but not to suggest that in their national past is an experience that deserves to be treated as comparably reprehensible to what Jews, and not only Jews, suffered at the hands of the Nazis.

 

Given a world of states, maybe Lauterpacht after all adopted the more tenable position. Perhaps the most that can be hoped for is an international criminal law framework that prosecutes, as appropriate, individuals, and leaves the chronicling of group crime to historians, novelists, and filmmakers. Even here there are problems not faced by Lauterpacht or Sands that relate to the hierarchical character of world order that makes any serious application of international criminal law more a creature of geopolitics than an expression of the rule of law or a tenet of global justice.

 

Sands while right to be proud of his own role as revered litigator of international crimes adopts a more questionable position by downplaying the relevance of geopolitics. In a notable passage about the objection to Nuremberg as ‘victors’ justice’ he writes, “[y]es, there was a strong whiff of ‘victor’s [sic] justice,’ [at Nuremberg] but there was no doubting that the case was catalytic, opening the possibility that the leaders of a country could be put on trial before an international court, something that had never happened before. [loc. 288] A whiff! [for those unfamiliar with ‘whiff’ its dictionary definition is this: “a brief passing odor in the air as in ‘a whiff of perfume’ or “a very small trace as in ‘a whiff of self-pity in her remarks’] Looking at the impunity conferred by the Nuremberg framework on the indiscriminate, terror bombing of German cities [recall Kurt Vonnegut’s Slaughterhouse Five], not to mention the fire bombing of Tokyo and the atomic bombs dropped on Hiroshima and Nagasaki, the victors’ dimension could not be convincingly marginalized from the overall legal proceedings. It was certainly more consequential than even ‘a strong whiff’! Even the American prosecutor, Robert Jackson, who is portrayed by Sands quite reasonably as the most influential presence at Nuremberg, understood that the moral validity of the decision rendered was precarious, and needed future vindication by being integrated into an international law framework that bound all states, winners and losers, strong and weak. That this never happened deserves commentary that Sands fails to provide.

 

Instead, Sands reminds us that there has been much follow up to Nuremberg that supports his assessment of its catalytic impact. He cites his own extensive experience with both categories of criminality in cases involving Serbia, Croatia, Libya, United States, Rwanda, Argentina, Chile, Israel and Palestine, United Kingdom, Yemen, Iran, Iran, Iran, Iraq, and Syria as if the mere listing proves his point. [loc. 6607] I believe Sands’ impressive legal activism only shifts the focus. True, there has been a robust development of human rights and international criminal law, especially after the end of the Cold War, but this has obscured rather than overcome this fundamental flaw. The integrity of the rule of law as an operative global system, depends crucially on treating equals equally, and this has never happened, nor will it happen without a sea change in world politics. As African countries have been pointing out with plausibility, criminal accountability for both CAH and genocide is limited to weak states and losing sides in wars, and impunity remains for the strong and winners. We will long be waiting for the likes of George W. Bush or Tony Blair being called to account for their role in embarking on a disastrous aggressive war against Iraq in 2003.

 

True, introducing these categories of criminality into the legal vocabulary gave a valuable normative tool to civil society, first effectively utilized by the much maligned Russell Tribunal in the midst of the Vietnam War and more recently by the Iraq War Tribunal of 2005 that addressed crimes associated with the Iraq War. Yet civil society has only public opinion at its disposal, and even here, is hampered by the statist orientation of most media outlets that demean such civil society initiatives as illegitimate intrusions on the public sphere reserved exclusively for governments representing sovereign states. At best, these civil society tribunals that pass judgment on the behavior of geopolitical actors are expressions of a moral consciousness that acts as if these norms of international criminal law should be universally regulative rather than selectively applied.

 

Sands, along with Lauterpacht and Lemkin, share the liberal conviction that law is an autonomous force for the good in human affairs (unless deformed in its application as by the Nazis). Their sense of practicalities appears to be a willingness to overlook geopolitical constraints, and to take what incremental steps are made available by circumstances with the hope and expectation that over time the growth of law and legal institutions will overcome the present arbitrariness of practice. In the meantime, the liberal test of validity is a matter of procedural assurances that trials are fair and that those who are convicted are guilty of heinous acts that deserve to be punished. The related fact that some are too powerful to be accountable is a fact of life that it is best not to think too much about. Along with far more notable public intellectuals (e.g. Russell, Sartre, Chomsky, Edward Said) I dissent from this liberal optimism/opportunism, believing that the conscience of engaged citizens is an indispensable challenge to all political systems, (talking truth to power) rather than limiting constructive contributions by acting within it. At the same time, I would not judge liberal icons, such as Sands and Lauterpacht, who have made a political choice opposite to mine.

 

In the course of this essay I have ignored other significant publications by Sands, most particularly his prior relevant and important book, Lawless World: America and the Making and Breaking of Global Rules (2005), a well-reasoned and documented critique of the approach to international law taken by the neoconservative presidency of George W. Bush, especially with respect to the Iraq War, but also in reaction to the 9/11 attacks. Although valuing this contribution to the policy debate that occurred during that period, it is fully consistent with the liberal orientation, which is often to oppose American and British foreign policy undertakings, especially if they happen to be unsuccessful and are peripheral to national or strategic interests, and depend upon unilateral aggressive uses of force not authorized by the UN Security Council. In this vein the recently released massive Chilcot Report evaluating British involvement in the Iraq War follows a parallel liberal line, condemning any decision to go to war except on the basis of adequate advance planning and the buildup of public support, but sidestepping the question of whether it was also mandatory on Britain to comply with international law and the UN Charter. Despite the 2.3 million words of the report there is no where a hint about Blair’s potential personal responsibility if international criminal law were to be properly applied.

 

As expressed at the beginning, despite these differences, I greatly admire the author, and applaud Sands’ dazzling performance. Among other qualities, Sands displays an incredible willingness to go to great lengths to get the details correct. He tracks down addresses, relatives, obscure documents and pictures to piece together a riveting narrative of these three lives, and their families, coping with one of the most extreme collective traumas of all time. As said, this book can and should be widely read from many perspectives, and the psycho-politics of the jurisprudence it imparts is the one that happens to interest me most, but it is only one of several strands in this exceptionally rich tapestry, and each one deserves similar detailed commentary.

Looking Back on World War I One Hundred Years Later: Four Mixed Messages

10 Nov

[Prefatory Note: A few days ago I gave a lecture in that was the second annual occasion honoring the memory of a beloved New Zealand peace activist, Dorothy Brown. My host for the occasion was the National Centre of Peace and International Studies, University of Otago, Dunedin, NZ, where two days later I gave another lecture, “Obstacles to Peace in the Middle East.”]

 

 

Looking Back on World War I One Hundred Years Later: Four Mixed Messages

(Dorothy Brown Memorial Lecture, Auckland, New Zealand, November 8, 2014)

 

Identity Politics a Century Later

 

I admit to surprise that a place as distant from Europe as New Zealand would have had such a strong interest in World War I until I looked a bit deeper into its relationship to that war and to the country’s place sense of imperial duty or citizenship at that time. Discovering that more that 100,000 New Zealanders participated in the Great War as either soldiers or nurses in a population of just over a million exhibited the extraordinary bonds prevailing between the people and government of NZ and Great Britain, a monarchy acenter of a global empire that still was widely accepted as the mother country, exercising control over its foreign dominions that were neither fully colonies nor yet completely independent states. Such an appreciation of the bond is further strengthened by the realization that of those New Zealanders who went to war 16,697 died and another 41,317 were wounded resulting in an astounding casualty rate of 58%, which was considerably higher than either Canada or Australia. In view of such losses it is hardly surprising that Auckland built an imposing war memorial museum honoring the memory of those who fought in World War I.

 

New Zealand also participated in World War II in a similar spirit of Commonwealth solidarity despite the formal loosening of the imperial ties as a result of the 1931 Statute of Westminster. It may have been relevant that the Pacific dimension of the war made the prospect of a Japanese victory appear dangerous for the security of New Zealand, and hence posed the kind of direct threat to both New Zealand and Australia that was not present in 1914. This security dimension validated New Zealand’s involvement in World War II from a realist perspective of state interests, reinforcing the psychological identification of the interests of the two countries. I wonder what New Zealand would do if Britain become engaged in a future major war. It raises questions of whether national values, sentimental memories, and current identity has moved away from what might call ‘the settler colonial stage’ to an outlook weighing national interests, which is the more typical approach of sovereign states confronting the momentous choice of assessing its security interests in wartime situations. It is a deep challenge for democratic societies, especially when account that any such an engagement in non-defensive wars is a call upon citizens to risk their life and limb on behalf of the nation, sometimes for might seem to many a remote, and even dubious, political cause. I cannot help but wonder whether New Zealand continues to possess this mentality of unquestioning solidarity and deference that in the past has so automatically linked its national destiny with that of Britain considering differences in national consciousness and threat perceptions, as well as the changed status of war in international law? Or is there a divided consciousness present in the country between conservatives who continue to give great weight to the empire rechristened as ‘the Commonwealth’ years ago and more liberal or progressively minded New Zealanders who think either more nationally or even may be beginning to view themselves as global citizens.

 

It occurs to me as an outsider that a comparison of national identity in 1914 and 2014 must be quite illuminating in relation to such issues of shifts in prevailing national identity as would such a comparison be for my country where the shift from isolationism to globalism has been so dramatic, and in many respects, disastrous. It seems also that the enduring impact of the Cold War has been to move both Australia and New Zealand a bit further from Britain and closer to America, illustrating a sense of increased dependence on American military prowess should New Zealand’s security ever become directly threatened.

 

I think also of the orientation of American foreign policy that continues to give some weight to Anglo-American traditions of solidarity that developed over the course of the last century, but mainly conditions its involvements in war on the basis of self-interested realist calculations of national interest combined with strategic concerns associated with geopolitical ambition. It should be remembered that unlike New Zealand, in the world of 1914, the United States had to overcome its break with Britain in its war of independence as well as its strong traditional stance of noninvolvement in European wars. The U.S. did not enter the war until towards the end of 1917 and then when provoked, in part, by unrestricted German submarine warfare, as well as being disturbed by the ideological consequences of a German victory. Of course, in this cross-Atlantic relationship, it has for decades become Britain that subordinated its normalcy as a state to what became in Britain an unpopular willingness to follow wherever the United States leads, as in the disastrous Iraq War during which the British Prime Minister, Tony Blair, was often derided as ‘Bush’s poodle.’ It is also relevant to recall that back in 2013, the House of Commons refused to back Prime Minister Cameron’s call for air strikes in Syria in response to an alleged major use of chemical weapons by the Assad regime, and just recently has again annoyed Washington by calling on the British Government to recognize Palestinian statehood.

 

I raise these preliminary questions mainly in the spirit of curiosity as to how those living in this country now view their past history in relation to the imperatives national and human security in the present global context. In my visit to the country more 30 years ago, I became involved in the then controversial policy of disallowing American naval vessels suspected of carrying nuclear weapons to make use of NZ ports, and recall that the debate centered on an interplay of benefits and detriments to NZ as a member of ANZUS, the Pacific alliance that was part of an American-led network of alliances, as well as the status under international law and morality of this weaponry of mass destruction. It is worth contemplating whether in this century alliance geopolitics and regional trade and investment relations has gradually come to overwhelm the more ethnically and historically valued multi-state frameworks of the Commonwealth. Now that New Zealand has been recently elected to the UN Security Council, which is itself a notable achievement for a small state in a hotly contested competition, might not the stage be set for a move toward a more cosmopolitan worldview to take hold here in the country? Such a posture would be widely appreciated in other parts of the world, especially if New Zealand began to act as a global voice of conscience that was as concerned with promoting the human interest as it is with protecting its national interest.

 

Learning from the First World War

 

Let me make a confession of sorts. When I was first told that the subject of this talk should be a set of reflections on memories of the First World War I had a mild panic attack, realizing that my historical knowledge of the period was grossly inadequate to fulfill such an assignment. I conveyed my anxiety to the conveners who thankfully took pity, allowing me to consider the legacies of the First World War rather than to reflect on how we now remember these momentous events of a century ago. I found this altered challenge more to my likely. I came to realize that the enduring reverberations of World War I tell us far more about present trials and tribulations in world politics than most of us appreciate. I was struck in this regard by a passage in Hannah Arendt’s great book The Origins of Totalitarianism: “The days before and the days after the first World War are separated not like the end of an old and beginning of a new period, but like the day before and the day after an explosion. Yet this figure of speech is as inaccurate as are all others, because the quiet which settles down after a catastrophe has never come to pass. The first explosion set off a chain reaction in which we have been caught ever since and which nobody seems able to stop. The first World War exploded the European comity of nations beyond repair, something which no other war had ever done.” [267] This is an extraordinary statement that seems an exaggeration when we first take account of its grandiose claims, but as I will try to show, this assessment remains essentially accurate more than fifty years after Arendt’s book was published. For most of us the impacts of World War I are still grossly under-appreciated. So much has changed in the world that such a a distant war is mainly regarded as one more historical occasion buried in the realities of its time. In my view such a perception should be corrected. As I will argue, for instance, the terrifying turmoil now going on in the Middle East can be traced back to some fundamentally wrong decisions made in the peace diplomacy that followed the war, and cannot be properly understood or addressed without appreciating its World War I roots.

 

There is one misleading dimension of Arendt’s words, the implied Euro-centric character of world order as an enduring reality. In important respects, Europe since losing her colonies after World War II has become marginalized as a major participant in shaping world history. This assertion is not meant to deny that Europe was clearly responsible for setting in motion the events that shook the foundations that existed a hundred years ago, and then and now pose obstacles in the search for peace, justice, and even stability. Such global developments as the world hegemonic role of the United States, the rise of China, neoliberal globalization, the emergence of the BRICS makes any projection of a Euro-centric world as simplistic and not very relevant in 2014. Despite this it remains crucially relevant to grasp even if belatedly, the 1914 reverberations that persist. Achieving a better understanding of these reverberations may help to make our world a bit more secure, more just, and less prone to violence.

 

In this spirit, I have chosen four sets of developments that owe their origins and unfolding to the disruptive impacts of World War I. In part, these developments arose because of various efforts to vindicate the immense suffering and sense of loss resulting from the war. Both idealists and realists strained to make the peoples of Europe and their allies feel that the sacrifices made in the war would be justified by the gains associated with the peace. For some this involved enjoying the spoils of victory as measured mainly be extending the colonial reach. For others, a pattern also present following the Second World War, but revealingly not after the Cold War, to build a future world order that would discourage, if not prevent, the recurrence of major wars in the future.

 

Political Extremism. First of all, was the recognition that World War I and its aftermath had profoundly dislocating effects on societal coherence and political authority throughout Europe. The war is widely believe to be responsible for unleashing polarizing social forces dedicated to overturning the established order, pointing in the opposite political directions of revolutionary change from below and totalitarian rule from above. These strong political demands exhibited the extreme and complex alienation of contending social classes in several of the countries experiencing the traumas of war. What eventuated were a lethal mixture of domestic and international ideological orientations associated with a variety of fascist and communist political movements, most dramatically producing both the Russian Revolution and the rise in Germany of National Socialism. The messianic militarism of fascism (and Japanese imperialism) produced confrontations with the liberal democracies and with Soviet communism that reached a climax with the outbreak of World War II. This rise of extremisms created as its dialectical legacy a political resolve by the victors, aside from the Soviet Union, to do their best to avoid embittering the defeated nations. The Western allies went further by making a strong effort to restore these devastated countries to economic and political normalcy as soon as possible. In this regard the occupations of Germany and Japan, absorbing the lessons associated with some of the mistakes made in the aftermath of World War I exerted their influence in such a way as to nurture political moderation and hostility toward extremism in the defeated countries. With sensitivity to the culture of these defeated countries, making such moves as retaining the emperor system in Japan, the enemies of yesterday quickly and willingly became friends and allies in the conflict patterns taking shape after 1945. Such a reversal was prompted by the second phase of the struggle of moderate governments against political extremism, this time taking the form of the long Cold War, whose conduct managed to avoid the curse of a third world war that would likely have been fought with nuclear weapons. With the collapse of Communism and the disintegration of the Communist bloc in Eastern Europe, and the accompanying triumph of Liberalism, there occurred in the West a brief exultant mood of triumphalism captured best by Francis Fukuyama’s striking image of ‘the end of history.’ Such a West-centric Hegelian interpretation of the outcome of the Cold War enjoyed a bit of added plausibility when China’s drive toward modernization under Deng Chau Ping bought this gigantic country into the neoliberal world order, which the Brizilian leader Fernando Henrique Cardozo acknowledged to be ‘the only game in town.” That is, the victory over Communism was understood as facilitating a globalized world economy that was guided by a market-driven ideology that is most commonly identified as ‘neo-liberal.’

 

Leaving aside the anti-Western extremisms that came to the surface in the Islamic Revolution in Iran, a cost of this complacent celebration of Western liberalism was to foster an intolerant attitude toward visionary politics, whether of a radical or utopian variety. The politically influential classes endorsed the belief that only incremental change is constructive and feasible, and that any greater political ambition necessarily plunges society, if not the world, into a descending spiral that inevitably produces terrorism and extremism. This reading of history goes back to the French Revolution as well as forward to an account of the Soviet experience, referencing Nazism along the way. Over-learning this initial lesson of the First World War is very disempowering in the present global setting where it is only ‘a necessary utopianism’ that might meet the challenges of nuclear weapons and climate change.

 

Unlike the rise of extremisms in the aftermath of World War I there was no comparable experience after World II. This undoubtedly partly a reflection of the reality that a large proportion of public in the occupied countries felt that their extremist leaders had brought destruction upon the country by the embrace of morally unacceptable and politically imprudent policies. It is also partly resulted from success of the United States as the prime victor quickly recasting itself in the role of principal protector against the unfinished agenda of defeating expansionist extremism. On the basis of such a feeling the Soviet Union after World War II was quickly seen to be a surviving extremism with values and goals that were antithetical to Western liberal individualism, a reality supposedly confirmed by the Soviet moves to exert permanent control over Eastern Europe. Left European intellectuals themselves later turned against the excesses Stalinism, a collection of essays by prominent personalities, and published under the intriguing title, The God that Failed.

In an important respect, the Cold War can be viewed as the final stage of an ongoing global war of being waged by moderates and capitalists against socialists and extremists, or liberals against totalitarians, that began with the assassination of Archduke Ferdinand in Sarajevo and ended with the breaking of the Berlin Wall.

 

 

Flawed Accountability. A second somewhat ambiguous reverberation from First World War were ideas about imposing some kind of accountability for violations of international law by those acting in the name of the state. The seemingly progressive idea was that there needed to be a law that overrode sovereign claims of being only accountable internally, especially in the context of aggressive war.

 

The impulse was confused and controversial from the outset as the insistence on accountability became intertwined with the eagerness of the winner to demonstrate that it deserve to win. In its initial expression, which seemed dubious given the origins and character of the First World War, was the idea that losers in a major war should be held collectively responsible for causing the damage and suffering and that, correspondingly, the behavior winners should not be scrutinized. The victorious governments should be at liberty to determine the punishment to be imposed. In the Versailles arrangements this took the form of requiring Germany to pay significant reparations to offset the damage its war machine had caused and to accept strict limitations on the form of military capabilities that it would be allowed to develop and possess in the future. Such a punitive peace as embodied in the Versailles Peace Treaty definitely accelerated the German descent into a struggle between extremisms, and created a national mentality of defiance and wounded pride. Such a German reaction seemed understandable as it was difficult to draw a sharp moral line between the military behavior of victors and vanquished other than by reference to the way the conflict was resolved on the battlefield, which seemed quite detached from questions of moral and legal responsibility for the war and its conduct. As a result, Germans felt bitterly betrayed by emergent political order that seemed to reject that principle of comity among sovereign states that Arendt referred, which had in the European setting treated losing states in war as no more morally reprehensible or politically dangerous than the winner.

 

Yet this idea that there was a moral and legal dimension to warfare that must be factored into post-war arrangements survived to live another day. It surfaced in the war crimes trials held in Germany and Japan after the Second World War, most spectacularly in the prosecution of the surviving leaders of the two countries in the much studied Nuremberg and Tokyo trials. The Nuremberg approach was generally vindicated by the consensus view that the Nazi experience was such an unprecedented assault on European values, first by so overtly launching a major aggressive warf and then by the commission of numerous atrocities in its course, especially genocide against Jews and other minorities. The Tokyo trials were far more controversial as the onset of the Pacific theater of warfare was as prompted by the deliberate encirclement and squeezing of the Japanese economy as it was by the surprise attack in 1941 on Pearl Harbor. This moral and political ambiguity is heightened as soon as one takes into consideration the failure to impose any accountability on the victors for the use of atomic bombs on Hiroshima and Nagasaki or for the fire-bombing of Tokyo. The cry of ‘victors’ justice,’ the title of a book by the historian Richard Minear, seemed understandable, if not justifiable. In the German case the American prosecutor, Robert Jackson, tried to soften the one-sided approach toward individual criminal responsibility taken after World War II by declaring a Nuremberg Promise, namely that in all future wars those governments sitting in judgment in relation to the Germans would submit themselves to the same discipline of international criminal law. This Nuremberg Promise was broken by each of the victors, none of whom have ever accepted the application of a procedure of criminal accountability being applied to themselves, and have opted out to the extent possible from the activities of the International Criminal Court. The United States and Europe continue to make a political use of international criminal law by staging prosecutions of their recent enemies, including Slobadan Milosevic, Saddam Hussein, and Muamar Qadaffi, and finance the ICC in its focus upon the criminal wrongdoing of sub-Saharan African leaders while granting de facto impunity to the West.

 

In effect, the idea of criminality associated with war could have taken either of two forms, as an emergent branch of the rule of law that would apply the same standard of accountability and judgment to the victors as to the vanquished or it could accept the double standards of imposing accountability on the defeated and granting impunity to the victor. Robert Frost’s poem, “The Road Not Taken,” expresses such a choice in more personal and universalistic language:

 

“Two roads diverged in a wood, and
I took the one less traveled by,
And that has made all the difference.”

 

 

Unlike the poet, the statesmen of the world have chosen the more traveled road of political realism and geopolitics, which had long been accustomed to the amoral dualism of one law for the strong, another for the weak. This realist was concisely set forth long ago by Thucydides in the Melian Dialogue in his History of the Peloponesian Wars: “The strong do what they will, the weak what they must.” What World War I initiated was a moral/legal translation of this political tendency that liberals viewed as a step forward, conservatives generally regarded as a risky departure from realism, and progressives viewed as an hypocritical and misleading effort to seize the high moral and legal ground. The impulse was renewed after World War II, but individualized by way of war crimes trials thus abandoning the war-provoking practice of World War I that consisted of imposing onerous burdens on a defeated country at the very time when its population was struggling with the urgencies of survival in the ravaged conditions of post-war realities. It is regrettable that this idea of a punitive peace was revived in dealing with Iraq after the Gulf War of 1991 as if the lesson of World War I’s misbegotten breach of comity was irrelevant when dealing with the global South that never had enjoyed the benefits of comity.

Global Institutions. Thirdly, the horrors of warfare that caused millions of casualties and destroyed economies in the period 1914-1918, gave rise to a vibrant peace movement, and to the willingness of the peoples of Europe to look with favor toward a fundamental revision of world order based on the institutionalization of peace and security at a global level. The establishment of the League of Nations was the result, but hampered from the outset by the sovereignty oriented statesmen who dominated diplomacy, as well as by an American leadership that was ambivalent about giving up America’s traditional non-involvement in European conflicts and its related posture of isolationism based on the insulating presence of oceans on either coast. Of course, there was more to the American position as it combined this non-interference in Europe with a determination to resist European interference anywhere in the Western Hemisphere. The enunciation of the Monroe Doctrine in 1823 gave tangible expression to this two-sided American diplomacy.

 

After every major war in Europe there have been attempts to learn from the experience and avoid the recurrence of such a traumatizing and dislocating experience that had given rise to such massive suffering. This tendency was evident in every major post-war instance of diplomacy since the birth of the modern European state system in 1648. In part this was a reaction to the tendency of political leaders to fail to anticipate the true costs and harmful societal impacts of war, whatever its outcome, inducing to a concerted effort to insulate Europe from future mistakes of the same kind.

 

The Thirty Years War led to the Westphalian framework based on territorial sovereignty in 1648, later reinforced by legally acknowledging the right of the sovereign to determine the religion of the state. The Napoleonic Wars led to the Concert of Europe in 1815, which attempted to create collective mechanisms for resolving disputes by diplomatic negotiation rather than war and through a consensus as to the nature of legitimate government that would act collectively against the sort of revolutionary challenges posed by Napoleon. World War I produced the League of Nations and World II the UN, the Bretton Woods institutions, and encouraged the establishment of collective mechanism for mutual cooperation that evolved into the European Union.

 

In contrast, the Cold War produced nothing at all, perhaps demonstrating that since it was never really a war, there were no mistakes to be overcome. In retrospect this seems like a tragic failure to use the atmosphere of relief and liberation to achieve nuclear disarmament and a stronger UN. What was revealed, instead, was a geopolitical complacency and a preoccupation with taking advantage of the globalization of the world economy in line with neoliberal capitalism. The political leadership in the United States lacked imagination and the public lacked motivation. There may be a species destiny contained in this regressive learning curve. At present, the world system seems incapable of meeting any formidable global challenges to human wellbeing except during that brief window of opportunity that is opened in the immediate aftermath of a major hot war. We notice that despite widespread scientific and public agreement on the dangers posed by nuclear weaponry and climate change, the problem-solving mechanisms available in the world have not been responsive, and show no signs of being able to surmount the peaceful obstacles posed by vested bureaucratic and private sector interests. We must ask ourselves whether it would require yet another war of global proportions to shake off this disabling lethargy that is literally endangering the very survival of the human species. And given the weaponry with which such a war would likely be fought, and its dire environmental impact, whether the human race confronts the unprecedented dilemma of being unable to act effectively without a war and likely being too devastated if such a war should occur to act reconstructively.

 

Returning to our focus on the legacies of World War I it is certainly appropriate to note that for the first time in history the impetus to form a global institutional mechanism with the overriding mission of preventing future wars entered the mainstream, at least rhetorically. The extraordinary suffering, devastation, and societal dislocation of a long war that accomplished very little that could be called positive led to social demands to ensure that less destructive means of achieving international peace and security could be developed. As well, the missionary vision of Woodrow Wilson that called for organizing the peace in durable ways captured the imagination of the European public in ways that helped make the establishment of the League of Nations a realistic project. The concrete implementation of such a vision was obstructed by the thinly disguised colonial ambitions of Britain and France, abetted by the secret machinations of diplomats and also by the Bolshevik Revolution in Russia that threatened the European established order to such an extent that a counter-revolutionary intervention was organized to reverse the outcome. Globalist impulses were also captive to American ambivalence that could not decide whether to abandon the tradition of avoiding entangling alliances, especially centered in Europe, and assert itself internationally as a global leader in peacetime as well as during large wars. The U.S. failure to join the League was certainly a blow to the hopes of those who believed that peace and security could only be preserved in the future by establishing alternatives to balance of power geopolitics, and was a deficiency corrected after World War II, but with the debilitating concession of a veto to the victorious powers who were self-anointed as the peace enforcers, except against each other, which meant that the step forward from the view of participation was nullified by the step backward in relation to political effectiveness.

 

Mark Mazower in his perceptive book Governing the World confirms the view that the birth of the League was “abrupt” and that war served as its “midwife.” [v] For Mazower who does not discuss the prior contributions of post-war statecraft to global reform, poses as the central question for those planning the peace after World War I, how to explain the birth of a new political idea. He considers the critical question to be why the dominance of statist views of world order seemed to give way with so little opposition to the sort of internationalism embodied in the League concept. He wants to know “why, in other words, some of the most powerful states in the world threw their weight behind the construction of a permanent peacetime world security organization and built the League of Nations.” [117] Perhaps, as Mazower doesn’t consider, the embrace of the League project was facilitated by the realization that such a feeble form of institutionalization was nothing more than window dressing that would neither inhibit colonialist diplomacy or confuse realist political leaders.

 

In the background were ideological issues that pointed in both directions. The League as established was at once perceived as a threat to sovereignty oriented nationalists and as too weak to carry out its mission of preserving the peace if a strong state emerged with a serious set of grievances about the status quo together with the means and will to mount a challenge by force of arms. As we all know both Germany and Italy in Europe and Japan in Asia did emerge with a revisionist agenda that could only be met by countervailing power, which underscored what was already known, that the League was useless when it came to containing aggressor states. The real test was posed by Fascism, especially as it manifested itself in the Nazi rise to power in Germany.

 

 

 

Destabilizing the Middle East. Fourthly, and least commonly acknowledged, was the degree to which the ‘peace’ concluded after the First World War contributed over the decades to ‘war’ in the Middle East region. This outcome resulted from the unwillingness of the European colonial powers to abide by their promise made during the war of independence for Arab peoples in exchange for their support of the Allied war effort by rising up and fighting against the Ottoman Empire. Instead, Britain and France through secret diplomacy, highlighted by the Sykes-Picot Agreement of 1916, plotted behind the scenes to achieve a distribution of Ottoman lands between themselves without regard either to their earlier commitment or to the dynamics of self-determination. This diplomatic process was responsible for the emergence of a series of particularly artificial states with borders drawn to reflect colonial ambitions relating to the location of oil and other strategic interests such as protecting navigational security in the Suez Canal. This approach to the Middle East has been responsible for successive waves of instability and suppression of minorities, as well as perceptions of illegitimacy by those affected and intense conflict.

Among the most anguishing legacies of the First World War is the current acute turmoil that afflicts almost the entire Middle East. Of course there are many intervening developments during the past hundred years that are relevant to explain the specific patterns of conflict that are present in the region. Nevertheless, as the perceptive regional expert, Mohammed Ayoob argues, it is the colonialist aftermath of the collapse of the Ottoman Empire that constitutes “the primary factor” in accounting for “the mayhem and anarchy” in the region. [158] Ayoob is critical of those who are content to attribute these regional torments to Islamic radicalism and sectarian tensions between Sunni and Shi’ia believers. He believes that this substitution of proximate for the more illuminating root causes leads to a faulty understanding of the underlying situation and what must be done about it. An earlier line of explanation associated with Bernard Lewis attributed the problems of the region to Islamic cultural resistance to a transition to Western style modernity. Of course, the importance of Middle Eastern oil to keep the world stable is a central part of the regional drama, and linked closely to such other concerns as American interventions in the region, preoccupation with the spread of radical Islam, the avoidance of the spread of nuclear weapons, and the destabilizing Israeli claims to uphold its security by periodic aggression and disproportionate reliance on force. In one way or another each of these issues can be traced back to the difficulties associated with the collapse of Ottoman rule as the occasion for the arrangements put in place after World War I.

 

The diplomacy of World War I was rather confusing and contradictory when it came to the Middle East. As mentioned, particularly Britain encouraged Arab leaders to revolt against Ottoman rule, promising postwar independence in the form of a regional Arab state. At the same time Woodrow Wilson was advocating a quite different approach, proposing the establishment of a series of successor states to the Ottoman control of the region based on the principle of nationality as the means to realize his overriding goal, the self-determination of peoples. In opposition to this the British and French were secretly plotting to divide up the region without regard to such considerations, but rather to satisfy their overriding interest in gaining control over territories that contained oil and satisfied certain strategic interests. The British were preoccupied with safeguarding the Suez Canal, staking claims for countries nearby including Jordan, Palestine, while the French wanted to be near the old Silk road to facilitate trade with Asia by overland routes, and were eager to create a distinct Christian state that would satisfy Maronite aspirations. However, there were also some relevant anti-colonial influences at work in the Versailles peace negotiations associated with American influence, yielding a compromise taking the form of the mandates system. This upheld the British/French ideas about post-Ottoman territorial delimitations, but instead of giving colonial title, these two governments were given unrestricted administrative control over these territories as ‘a sacred trust of civilization’ that included a vague commitment to grant independence at a future time. Without the impact of World War II on the colonial system it is doubtful that political independence would have been achieved without greater struggles against British and French tutelary administrative regimes throughout the region.

 

As Ayoob persuasively points out, the legacy of these arrangements was the creation of a series of artificial states that experienced great difficulty in governing effectively. Ayoob identifies what followed as ‘state failures’ that have generated the extremism and sectarianism that continues to afflict the region, not the reverse. It seems correct that when sovereign states are not natural political communities severe inner tension and instability inevitably results. The denial to the Kurds of a state of their own has created very disruptive issues of minority and self-determination challenges to state legitimacy that constitute one dimension of persisting problems in Iraq, Syria, with spillovers to Turkey and Iran. What has recently become evident is the capacity of non-state actors to ‘outgovern’ the formal governance institutions of the state. This extraordinary development has been recently acknowledged in relation to the extensive areas under the undeniably harsh and brutal control of the IS, and also in Afghanistan where from the perspective of human security of the people, the Taliban is doing a better job of meeting the daily health and security needs in Afghanistan than is the heavily subsidized government in Kabul. [See “Pakistan’s parallel justice system proves Taliban are ‘out-governing’ the state,”] This radical form of state failure has given well-organized and dedicated Islamic civil society actors a political base that includes a reputation for getting things done without corruption, and contrasts with governmental practice that is perceived as being both corrupt and incompetent.

The other source of fundamental difficulty in the region is associated with the Israel-Palestine conflict that also emanated from a colonial gesture during the final stages of World War I. In 1917 Lord Balfour made an initially secret commitment to the Zionist Movement that Britain would look with favor at the establishment of a Jewish homeland in historic Palestine. The population of Palestine was never consulted, and much conflict has resulted with no present end in sight. Understandably many Arab scholars are outraged by this colonialist intrusion on the political development of the Middle East. Walid Khalidi, the noted Arabist, recently called the Balfour Declaration “..the single most destructive document in the twentieth century.” This may be hyperbole, but there is no doubt that the unresolved Palestinian quest for self-determination has caused frequent wars, as well as inflicted on the Palestinian people both the catastrophic dispossession of 1948, the nakba, and a brutal occupation that has continued since 1967, increasingly assuming an apartheid structure of military administration. The United States has assumed the role earlier played by Britain in protecting Israel’s interests in what has been a hostile environment regardless of Israel’s frequent violation of international law and elemental morality, above all, its unwillingness to cooperate in reaching agreement with Palestinians based on equality of rights as the foundation for a sustainable and just peace.

 

Conclusion

 For several reasons it seems correct to view World War I as the biggest rupture in global history since the French Revolution, and more revolutionary in its impact than subsequent major wars. Perhaps, most notable is the degree to which World War I exhibited interconnections between mobilizing the resources and enthusiasm of national societies for engaging in war and the decline of the capacity to rely on diplomatic compromises to bring wars to an end in a manner that minimizes the suffering experienced and the dislocation caused. As Raymond Aron expresses this idea, “..it was peculiarly difficult to end by negotiation in the traditional way a war that had become a war of peoples and of ideas.” [The Century of Total War, 27] The public had to believe in the war, which fed the claims that the issues in contention were of fundamental importance and that the enemy was pursuing evil ends, and this is what Arendt meant by the end of European comity.

 In line with this observation are the elaborate commentary of Gabriel Kolko set forth in his important study, Century of War. Kolko insisted that the World War I initiated a process of war making in which the leaders and citizens anticipate and plan for a short war, and instead experience a long and far more destructive, alienating, and costly war that brings vast human suffering, creating serious societal dislocations. Kolko writes of both the specific deforming impacts of the conflict and its patterning of the successive major wars that have subsequently taken. He writes, “..it is so desperately imperative that we escape from the present uneven yet steady descent along the path of war on which the mankind has been locked since 1914.” [453] He indicts political leaders for their “ignorance that has cost humanity a price in suffering beyond

 

Any measure.” [454] In effect, World War I initiated a modern tendency for what Kolko calls “the consummate irresponsibility” of leaders who are “playing with the lives of anonymous people..who are sent off to die” without any appreciation of or concern about the societal costs that will be incurred.

We in America remember the anger aroused caused by the Bush presidency promising that the Iraq War would be a cakewalk in which the American occupiers would be welcomed as liberators. It was an arduous decade long campaign that ended in failure and there was no welcome in Iraq despite widespread opposition in the country to the autocratic regime of Saddam Hussein.

 

In effect, the kind of war making that occurred in World War I and took new technological forms in World War II is a virus that continues to lie dormant in the body politic. It is exhibited by the refusal to seek the abolition of nuclear weaponry or the globalizing of the rule of law, and by the insistence that our side in every war is essentially innocent and good and our adversary is evil, even barbaric.

 

The current global war on terror is inscribed in public consciousness in accordance with the kind of moralizing self-assurance that guided the peacemakers at Versailles almost a century ago. Unfortunately, the imperative lesson involving the dysfunctionality of war has not yet been learned by either the leaders of the most important sovereign states or their publics. The only useful thing that has been learned about war is the importance of exercising caution in the nuclear age whenever a crisis in international relations occurs. We must pause and ask ourselves what seems to be a decisive moral and political question, which may also be an ultimate survival question: ‘is caution enough?’ And if not, ‘What must be done?’ We certainly do not want people coming together one hundred years hence to lament the persistence of war as the defining feature of world history.