Tag Archives: Tony Blair

The Failure of U.S. Foreign Policy in the Middle East

22 Nov

[Prefatory Note: What follows is a modified version of the Morton-Kenney annual public lecture given at the University of Southern Illinois in Carbondale on November 18, 2015 under the joint sponsorship of the Department of Political Science and the Paul Simon Public Policy Institute.]

 

The Failure of U.S. Foreign Policy in the Middle East

While focusing on the ‘failure’ of American foreign policy in the Middle East it is relevant to acknowledge that given the circumstances of the region failure to some degree was probably unavoidable. The argument put forward here is that the degree and form of failure reflected avoidable choices that could and should have been corrected, or at least mitigated over time, but by and large this has not happened and it is important to understand why. This analysis concludes with a consideration of three correctible mistakes of policy.

 

It is also true that the Middle East is a region of great complexity reflecting overlapping contradictory features at all levels of political organization, especially the interplay of ethnic, tribal, and religious tensions internal to states as intensified by regional and geopolitical actors pursuing antagonistic policy agendas. Additionally, of particular importance recently is the emergence of non-state actors and movements that accord priority to the establishment and control of non-territorial political communities, giving primary legitimacy to Islamic affinities while withdrawing legitimacy from the modern state as it took shape in Western Europe. Comprehending this complexity requires attention to historical and cultural background, societal context, and shifting grand strategies of geopolitical actors.

 

 

I

 

From many points of view American foreign policy in the Middle East has been worse than a disappointment. It has been an outright failure, especially in the period following the 9/11 attacks of 2001. Even such an ardent supporter and collaborator of the U.S. government as Tony Blair, the former Prime Minister of the United Kingdom, has acknowledged as much in a recent set of comments where he basically says that the West has tried everything, and whatever the tactics were relied upon, the outcome was one of frustration and failure. In Blair’s telling words:

“We have tried intervention and putting down troops in Iraq; we’ve tried intervention without putting in troops in Libya; and we’ve tried no intervention at all but demanding regime change in Syria. It’s not clear to me that, even if our policy did not work, subsequent policies would have worked better.” [as quoted in David Swanson, “Tony Blair is Sorry, a Little,” http://davidswanson.org/node/4960] In Blair’s either/or world the political imagination is militarized to the extent that the only viable alternatives are to intervene/or not to intervene, suggestive of that most celebrated of binaries, Hamlet’s ‘to be or not to be,’ an utterance relating to whether or not he should kill the usurping king, the presumed murderer of his father.

 

Several comments are worth observing: first, the scope of inquiry in Blair’s comment is limited to an assessment of military intervention as a tactic, without any consideration of diplomacy or respect for the dynamics of self-determination; secondly, the ‘we’ in his comments is the West, which mainly has meant the United States, rather than the UN or the wider international community; it is a geopolitical ‘we’; thirdly, the fact that intervention violates the UN Charter and international law is irrelevant for a post-colonial advocate of Western militarism, such as Blair. This comment is revealing in the same way that Sherlock Holmes famously perceived the nature of a crime by noticing that a dog was not barking in its habitual manner, that is, identifying what is omitted from Blair’s assessment is far more interesting and illuminating than what is acknowledged, which is the frustrations of interventionist statecraft in the Middle East; fourthly, it is a misrepresentation of Western policy toward the Syrian conflict to classify it as an instance of ‘nonintervention’ because there has been no concerted air campaign or ground forces mounted by external actors; fifthly, and perhaps most important of all, Blair’s focus on intervention as a Western instrument to control behavior in particular countries does not attempt to encompass the blowback or boomerang effects of intervention as being increasingly unconstrained by the territorial geography of the combat zone; this extra-regional extension of intervention is being most vividly experienced in the contradictory forms of the migration crisis and the horrifying Paris attacks; the point here being that the reverberations of Western intervention can no longer be reliably confined to non-Western battlefields as was the case during the colonial era.

 

Tom Mayer gives a more satisfactory gloss on this same range of experience. Mayer is a peace activist in Boulder Colorado who manages a very perceptive listserv with the name “Just Peace in the Middle East.” His assessment: “US military intervention has been a calamity in the Middle East. They have destroyed Iraq, destabilized Libya, fostered dictatorship in Egypt, accelerated civil war in Syria, and the destruction of Yemen, and helped squelch a pro-democracy movement in Bahrain.” [Oct. 25, 2015] The difference in outlook between Blair and Mayer is evident: Blair is exclusively concerned with whether Western policy attained its goals or not, while Mayer emphasizes the harmful effects on the society that is on the receiving end of intervention. Blair epitomizes what I regard as an obsolete yet dangerous form of ‘geopolitical thinking’ while Mayer focuses on the primacy of people and the suffering brought about by a misguided reliance on military solutions for conflicts in the Middle East. Mayer’s consequentialist thinking is also like Blair, not overtly sensitive to the relevance of restraints associated with the United Nations or international law but puts all his emphasis on the effects of these Middle Eastern uses of force. He also does not here mention the post-colonial globalization of conflict, the non-localization of Western political violence in the non-Western world, or more dramatically, the recourse by non-Western extremist forms of resistance to striking back at Western civilian or ‘soft’ targets. In my view, this last point is great significance signaling the end of a long era of one-sided violence in which non-Western resistance was confined to the territorial limits of the combat zone.

 

 

 

 

 

II

 

Before proceeding on the facile assumption of the ‘failure’ of American foreign policy in the Middle East, it is illuminating to consider alternative interpretations of recent developments.

 

There are important senses in which American foreign policy in the Middle East has not failed given certain assumptions about its character and priorities. If U.S. priorities are oil, Israel, non-proliferation, and the containment of political Islam, then American policy in the region, despite the collateral devastation and suffering entailed, has been surprisingly successful. For decades U.S. strategic relationships with the Gulf states have been successfully balanced with support for Israel. Oil has continued to keep the world economy going at affordable prices during a period when additional energy sources outside the region have been under development and exploration. After being a strategic burden during the early stages of its existence, Israel emerged as a valued strategic asset and partner with the United States in the region, especially since 1967. The U.S. together with Israel has successfully challenged all instances of the threatened proliferation of nuclear weapons in the region, while quite remarkably enabling Israel to maintain its regional monopoly of nuclear weapons in the Middle East, even to the extent of being insulated from criticism and pressure that should have been expected given such a blatant double standard as well as its process of covert acquisition. [Israel’s attack destroying Iraq’s Osirak nuclear reactor in 1981; Seymour Hersh, The Samson Option: Israel’s Nuclear Arsenal and American Foreign Policy (1991)]

 

Beyond these central points, it is relevant that both Israel and Saudi Arabia are also valued as major purchasers of American weaponry, and that Israel has field tested new tactics and weaponry in relation to the Palestinians that seem to have had a particular influence on Washington since the 9/11 attacks. Israel has joined with Washington in the development of counter-terrorism doctrine and tactic in all phases, including shared intelligence. In addition, Saudi Arabia has, despite its own fundamentalist orientation, operated as an unlikely counterweight in the region to the spread of Islamic radicalism, especially due to its bitter rivalry with Iran and hostility to the Muslim Brotherhood. Thus, by relying on the cool abstractions of geopolitics it is possible to make a strong case for concluding that U.S. foreign policy in the Middle East, given the priorities, has been a success, and the current devastation chaos, and oppressiveness in several of the countries is a diversionary sideshow that should not be understood as outweighing the benefits.

 

It must be acknowledged that this positive assessment is no very convincing given the inability to prevent the turbulence of the Middle East from spilling over to the West is taken into account. The migration crisis confronting Europe and the extra-regional terrorism of jihadism must now be included in any credible calculation of foreign policy success and failure. Put differently, those countries not militarily engaged in the region, including China and Brazil, have not yet experienced the lethal backlash of Middle East turbulence and the related jihadi backlash.

 

As indicated, much depends on whether the prevailing geopolitical outlook of dominant states in the West is the criterion of success or failure rather than the normative criteria of peace, human rights and justice in the region. I am far more inclined to rely on the latter evaluative approach as coupled with a revisionist interpretation of 21st Century geopolitics. I contend that given the realities of the contemporary world, a nonviolent geopolitics respectful of international law, the authority of the United Nations, and the primacy of the politics of self-determination, despite some difficulties, best serves the strategic interest of the United States. [See Jens David Ohlin, The Assault on International Law (2015)] In effect, the United States position in the Middle East and the world would have been much more successful if built around adherence to international law and respect for UN authority than it has been by the refusal to accept the dynamics of self-determination. In this primary sense there is no conflict between affirming normative priorities and geopolitics, that is, presupposing reliance on this revisionist version of geopolitics.

 

This refusal to accept the political verdicts of self-determination remains in my view the unlearned major lesson of the American defeat in the Vietnam War, a lesson reinforced by the outcome of a series of wars against European colonial powers and by the unhappy post-Vietnam experiences of the United States with military intervention, most notably in Afghanistan and Iraq. The only convincing reading of international history since the end of World War II is that military superiority does not produce political victories in struggles for national independence waged against foreign domination and generates a number of extra-geographical negative effects. These results are unlike the experience of earlier centuries when military superiority did largely shape the historical process. It is quite understandable that this decline in the agency of military policy is hard to difficult to integrate into the thinking and behavior of Western elites.

 

After the Vietnam War, a conversation between an American colonel who was a counterinsurgency specialist and his Vietnamese counterpart makes this essential point. The American declares, “You know that you never defeated us on the battlefield,” to which the Vietnamese colonel replies, “Yes that is true, but it is irrelevant.” From my perspective, the failures of American foreign policy in the Middle East, and elsewhere, is largely a consequence of the inability and unwillingness to comprehend this irrelevance. General David Petraeus, rose to the top of the military bureaucracy by reinventing counterinsurgency warfare in the late 1980s as part of the effort to overcome what American policymakers were derisively calling ‘the Vietnam Syndrome,’ that is, the post-Vietnam inhibition on the use of force due in the pursuit of international goals. I would argue that until the U.S. Government and its political leaders are ready to think outside this military box, we should expect more calls in the future for intervention, followed by new instances of frustration, failure, and non-territorial blowback. If you have watched the presidential debates there is no sign at all given by the candidates of either party of any understanding of the questionable role of military power in addressing characteristic 21st century conflicts. This understanding of the limited usefulness of military power has yet to penetrate the political consciousness of leaders and the public, and is rarely reflected in the media treatments of the Middle East. The consensus in Washington remains that it is military power that best correlates with American security and strategic interests in the Middle East and elsewhere. It had seemed for a while that the ex-colonial powers in Europe had learned this preeminently important lesson, and were successfully creating a culture of peace in Europe that included a reluctance to use force internationally except in self-defense as set forth in the UN Charter. Then the Libyan temptation came along in 2011, and spoiled this impression, which has now

all but disappeared given the challenges posed for Europe by mass migration and ISIS.

 

Against this background, it seems helpful to depict the historical depth of the present circumstances together with a discussion of events that have shaped the

challenge faced by American foreign policy in the region, and then reach for some partial explanations of what went wrong, followed by some thoughts as to what might be done by way of corrective. The distorting impact on American foreign policy of the two so-called special relationships that the United States maintains with Israel and Saudi Arabia deserves special attention. A critical attitude toward these special relationships is at the core of my revisionist approach to the regional turmoil and its extra-regional spillover. At the very point where grand strategists in the old realist tradition think American foreign policy has been most effective is where I think it has gone off the tracks if objectively appraised from the perspective of interests, policies, and values of the United States. In my view fixing these special relationships would initiate a long journey that will be needed if American foreign policy in the Middle East is to more effective and more consistent with international norms and proclaimed American values.

 

III.

 

I am fully aware that there is something arbitrary and opinionated about any insistence that certain lines of historical explanation should be labeled ‘root causes.’ My effort is to highlight some historically rather remote happenings that are not often enough mentioned when discussing policy options in the region. Also, as my focus is on the conceptual and normative failures of American foreign policy in the Middle East, I point to these early developments without any implication of a direct American responsibility, unlike the more recent proximate causes for which there exists a definite and direct American role. Indeed, here the responsibility that is asserted relates not to participation in misguided policies of past colonial actors but to the national failure of policymakers and leaders to make the effort to learn from the past.

 

Sykes-Picot Agreement of 1916. An initially secret agreement between Britain and France on how to divide up the Middle East in the aftermath of the collapse of the Ottoman Empire. The goal of the agreement was to extend European colonial rule to the region, thereby circumventing the self-determination aspirations of Woodrow Wilson and the United States as well as breaking promises to Arab leaders that assured sovereign independence. Russia had originally been party to this colonial diplomacy, but after the Russian Revolution, the agreement was made public by the new Soviet leadership with the intention of discrediting such diplomatic maneuvering.

 

What emerged were two developments that have significant relevance to the current turbulence and coercive ordering of the region: first, the establishment of artificial political communities with borders determined by colonial convenience rather than by historical and ethnic circumstances, completely neglecting the will of the relevant population or its prior experiences of community and culture. To give an example, Lebanon was carved out of Ottoman Syria to satisfy the French desire to have a Christian majority country in the region. In fact, all of the contemporary Middle Eastern territorial sovereign states were imposed from above and without, and lack indigenous legitimacy. Hence, when Osama Bin Laden, and more recently, ISIS, talk about the end of Sykes-Picot and the renewal of the Islamic caliphate, there is a cultural and historical resonance. The modern territorial sovereign state may seem like an inevitable choice given the character of world order and the persisting Orientalist mentality, but its legitimacy in the Middle East is fragile because the states failed to emerge as a consequence of the trials and errors of self-determination. From this perspective it is not so surprising that transnational non-state actors have emerged as the most formidable challengers of the established order in the Middle East, and no where else.

 

I encountered a similar non-territorial mindset when interviewing Ayatollah Khomeini in early 1979. On that occasion he made clear that the victory in Iran should not be grasped by reference to national or territorial parameters suggested by the label ‘the Iranian Revolution.’ He insisted on the primacy of community as religious conceived, that is as an ‘Islamic Revolution.’ In passing I would note that the state system is constitutive of world order, and that Iran as political actor has been challenged and responded since 1979 as a typical Westphalian state, especially given the Iran-Iraq War in the 1980s and the Israeli-American policy of aggressive containment of subsequent years.

 

Secondly, in such countries as Iraq, Libya, and Yemen the governance role of the state has been challenged from below. The idea of ‘the nation’ so vital to the coherence and success of the modern European state was relatively weak in the Middle East, and never succeeded in displacing the primacy of tribal loyalties in many countries and regions within countries, eroding the capacity of the state to maintain order and control except by highly coercive methods. Further, in many states a particular tribal or kinship group would gain control of the state, and privilege their own group while discriminating against and persecuting rival tribes.

 

Thirdly, the inability after World War I to implement the Sykes-Picot vision of the Middle East leading to a kind of compromise in the form of the mandate system that combined colonial paternalism with a sacred trust given to the organized international community that these peoples subject to administrative rule by the European colonial powers would when ‘ready’ be granted independence. In effect, this arrangement satisfied the substance of colonial ambition (trade routes, access to Suez Canal, resources) while ambiguously compromising its formal legitimacy. Without the weakening of Europe as a result of World War II, it is not clear that such independence would have been achieved, at least without lengthy wars of liberation of the sort fought in Indochina and North Africa.

 

Balfour Declaration 1917. Also initially secret, and equally colonialist, was the promise made by the British Foreign Secretary, Lord Alfred Balfour, to the World Zionist movement to look with favor on the establishment of a Jewish Homeland in

Palestine. Such an initiative was an enormous morale boost for the fledgling Zionist project, and can be seen as a decisive negative turning point for the Palestinian people. It was a pure colonialist gesture, both the form of the declaration and the complete disregard of the wishes of the indigenous population. What Balfour proposed was written into the mandate arrangement for Palestine administered by Britain, which leaned toward the Zionist side at first because there was more of a convergence of interest than with the native Arab population. In the end, when Zionism became more robust, and aimed for the establishment of a Jewish state, it turned against the British, relying on terrorist tactics to induce the British to abandon the mandate, and give responsibility for the future of Palestine to the UN, which as we know, carried forward the colonialist approach by proposing a partition plan that was adopted without the participation or agreement of the people living in Palestine, two-thirds of whom at the time were Palestinian Arabs, and about one-third Jews. Perhaps, the intentions underlying the UN proposal were benign, seeking some formula for peace and reconciliation, but the approach lacked the political will to implement the plan embodied in GA Resolution 181 and suffered from a process that was insensitive to the self-determination imperative.

 

Geopolitics also played a part in completing this Zionist project. The combination of the Holocaust and the guilty conscience of the liberal democracies led the international community to endow the state of Israel with immediate membership in the UN and left the Palestinian people in a permanent condition of limbo where they remain 68 years later. We hear frequent complaints from the U.S. Government and Israel that the UN pays disproportionate attention to Israel and Palestine, forgetting that unlike the other unresolved self-determination struggles in the world such as Kashmir, Western Sahara, Sri Lanka, the UN was from the outset directly implicated and responsible for the flawed approach to the post-Ottoman evolution of Palestine.

 

The Suez War of 1956. Without going into detail, the Suez War in which Britain, France, and Israel collaborated in waging war against Egypt in retaliation for the nationalization of the Suez Canal and the harassment of Israel by guerrilla fighters based in Egypt, had the major geopolitical impact of shifting the burden of protecting Western interests from Europe to the United States. At the time, it seemed like a benevolent sequel to the colonial era, but after the passage of 59 years it is not evident that this was helpful to the peoples of the region or for that matter to the United States. Put provocatively, the subsequent period might have had a different character if under the waning colonialism of a weak Europe rather than a strong and proactive United States (as complemented during the Cold War by a strong Soviet Union).

 

In conclusion, we cannot adequately grasp the depth of turmoil in the Middle East without looking back a century ago at the diplomacy associated with World War I.

The denial of Kurdish rights, the questionable legitimacy of the borders of the countries in the region, and the frustration of Palestinian self-determination are persisting unresolved issues that offer insight into present challenges, and the difficulties of response. The region, and even the world, is paying the deferred costs of these policies in the form of chaos, oppression, severe civil strife, and terrorist blowback.

 

 

 

III

 

By moving from root causes to proximate causes the methodological claim is being made that the present regional turmoil was significantly generated by several seismic happenings in recent decades. Again these events singled out should be understood as shorthand designations of turning points that have had a lasting impact on the political life of the region, and are themselves a product of the earlier root causes. Because they occurred after the enhanced American engagement in the Middle East after 1956 the United States was more of a participant, with more at stake.

 

The 1967 War. This war was a turning point in the strategic perception of Israel, changing its relationship to the United States rather dramatically from being a burden undertaken for moral and political reasons in defiance of realist calculations to becoming a strategic asset that could facilitate American hegemonic goals in the region. In this way the special relationship with Israel began to be perceived in terms of mutual benefits, and this was reinforced by the growth and influence of the Israel Lobby within the country. There is another more controversial view that the special relationship, at least as enacted, continued to distort American foreign policy, a position articulated by John Mearsheimer and Stephen Walt in their book. [The Israel Lobby and U.S. Foreign Policy (2007)] It can be illustrated by the added complexities of the relationship with Iran and its nuclear program due to the need to insulate Israel’s nuclear weapons monopoly in the region; similarly diplomacy to end the Syrian War has been definitely inhibited by giving in to Israel (and Saudi Arabia) on the role of Iran in seeking a negotiated end to the war.

 

Perhaps, the biggest detrimental effect of the special relationship in relation to the greatly expanded territorial expanse of Israel after the 1967 War was the U.S. unwillingness to exert effective pressure on Israel to withdraw to the ‘green line’ boundaries, which was the unanimously decreed directive of Security Council Resolution 242. I would imagine that if the withdrawal core of the resolution had been implemented, we would today have a two state solution rather than a single Israeli apartheid state that seems destined to sustain in one form or another its unilateral control over the whole of historic Palestine for the indefinite future. To give greater credence to this conjecture we should take into account both the 1988 PLO/PLC acceptance of the legitimacy of the Israeli presence within these 1967 green line borders on the basis of implementing 242 and the 2002 Arab Initiative along the same lines that offered Israel legitimacy and normalization. The United States has consistently affirmed this basis of Israel/Palestine peace, but it has been unwilling to use its geopolitical muscle to make it happen, and in fact has done the opposite, shielded Israel from criticism while the settlements expanded, and various steps were taken to make a viable Palestinian state incapable of realization. This double game of the United States that has bipartisan backing is to proclaim in public diplomacy its commitment to an independent Palestinian states and yet through the maneuverings of private diplomacy conspire with Israel’s increasingly evident resistance to the emergence of a Palestinian state.

 

The Islamic Revolution in Iran (1978-79). Without elaborating on this unexpected challenge to Western interests, the overthrow of the Shah and the establishment of the Islamic Republic of Iran had a profoundly unsettling effect on American behavior in the region. First of all, it reversed the apparent success of the 1953 geopolitical move that had returned the Shah to his throne with the help of the CIA; secondly, it led to the shocked realization that political Islam was becoming a greater threat to American interests in the Middle East than either Marxism or Soviet encroachment; thirdly, it introduced the notion of Islam as the natural political community in the Islamic world, with its ideas of a non-territorial caliphate and umma, which contrasted with the post-Ottoman imposition on the region of territorial sovereign states, which were not legitimate or natural even by Westphalian criteria.

 

The United States reacted hostilely to the popular movement that arose in Iran to displace its imperial ally in Tehran. Again, the root failure of American foreign policy was its unwillingness to respect the principle of self-determination if it seemed to go against its grand strategy in the region, which was then built around anti-Communism, oil, and Israel, soon supplemented by a strong commitment to oppose the spread of political Islam (unless serving Western interests as was the case with Saudi Arabia).

 

The Fall of the Berlin Wall (1989). The fall of the Berlin Wall, followed by the collapse of the Soviet empire, contributed dramatically to upgrading the American role in the Middle East. It removed the Soviet Union as rival and left the United States as the uncontested external political actor in the region. It also had the effect, given salience by Israeli strategic thinking coupled with the rise of neo-conservative foreign policy in Washington, of shifting the central venue of geopolitical significance from Europe to the Middle East. [See neocon report “Clean Break: A New Strategy for Securing the Realm,” Institute for Advanced Strategic and Political Studies (1996, 2006); also reports of Project for a New American Century] What followed were years of supposed unipolarity in which the United States was being criticized in conservative circles for its passivity in the aftermath of the 1991 Gulf War in which a dramatic military victory was not followed up by imposing a regime-changing political solution that removed Saddam Hussein from control over the Baghdad government. Such a shift has been somewhat diluted during the Obama presidency by the so-called ‘pivot to Asia,’ but the persistence of chaos, warfare, and sectarian rivalries continues the preoccupation with the Middle East of American foreign policy.

 

IV

 

The Al Qaeda 9/11 Attacks. The fact that the Al Qaeda attacks in 2001 were carried out by Middle Easterners (manly Saudis) and that Al Qaeda, as led by Osama Bin Laden, took responsibility sharpened the perception that the main strategic threat to the United States now emanated from religious extremism in the Middle East as materialized through the medium of a non-state and non-territorial actor. Such a traumatic event has had lasting impacts by way of focusing attention on counter-terrorism and global securitization of foreign policy, categorizing terrorism as a mode of warfare rather than as crime as in the past, and transforming warfare from a territorial encounter to engage with on a global battlefield. It also led to a further positive perception of the special relationship with Israel as counterterrorist mentor. Ariel Sharon’s remark that Yasir Arafat was Israel’s Osama Bin Laden summarized this sentiment of solidarity, which Netanyahu repeated in crude form after the 2015 Paris attack. This mentorship I believe encouraged drone warfare, targeted assassinations, and even led to extensive reliance on Israel to train American police forces in a paramilitary approach to opposition. President François Hollande of France has taken the same path, calling the Paris terrorist attacks as ‘an act of war’ by ISIS, adopting the disastrous Bush discourse of warfare, rather than elaborating upon the European counter-terrorist path of cooperative criminal law enforcement. [Philip Bobbitt, Terror and Consent: Wars for the Twenty-first Century (2008)]

 

In light of the foregoing, what may seem more surprising is the resilience of the special relationship with Saudi Arabia, given its connections with 9/11. Notable Saudis were alone allowed to leave the United States on 9/12, and more relevantly, the Saudi role in the worldwide financing of Wahabbist jihadism was publically ignored by American leaders, and implicitly tolerated, which seems a perverse contradiction with the securitization of American global policy based on a post-9/11 counterterrorist rationale. What seems shocking is that this tolerance persists even in the face of the terrorist spillovers beyond the Middle East.

 

The Iraq War and Occupation. (2003-2014). The main response to 9/11 was George W. Bush’s declaration of war on global terror, starting with the attack on Afghanistan, governed by harsh Taliban rule and offering Al Qaeda its base area for training and ideological leadership. In many ways this American shift from crime to war is most responsible for the severity and spread of the regional turmoil. This approach reached its climax with the attack on Iraq, which lacked a foundation in international law, and could not gain an endorsement at the UN Security Council. In this regard, the Iraq War of 2003, which was misleadingly principally justified by efforts to remove weapons of mass destruction from the country and to react to the false alleged complicity in the 9/11 attacks, was the occasion for bringing an American military presence into the center of the Middle East, and connecting this with safeguarding Israel and Saudi Arabia, confronting Iran, and establishing permanent military bases and assured access to the oil and natural gas reserves of the Gulf.

 

After a heavy expenditure of military personnel and resources, the outcome in Iraq after a decade of occupation and economic reconstruction aid, has been dismal. Instead of a partner with the West, there is a Shi’ia leadership in Iraq that is pledged to Iran, instead of constitutional democracy there is civil strife and chaos, instead of security there is ISIS control over a large portion of Iraqi territory, instead of some kind of regional collective security arrangement there is sectarian rivalry between Iran and Saudi Arabia. Under such circumstances is it any surprise that the United States policy planners dream of a second coming of Saddam Hussein? Once again American failure was mainly associated with trying to impose an external solution that defied the logic of self-determination.

 

The Arab Spring (20ll). It is impossible to overlook the impact of the Arab uprisings of 2011. What occurred was first an unexpected challenge from below to secular autocracies throughout the region. It caught the United States by surprise, and alarmed to various degrees the two beneficiaries of special relationships—Israel and Saudi Arabia—although for somewhat different reasons. After calling for democratization in the Middle East for many years, the actuality of democratic glimmerings was greeted in Washington with ambivalence, at best, and more accurately, as an occasion of tension as between democratic values and geopolitical goals. This tension rose to the surface in the counterrevolutionary aftermath in which the United States sided with suppression in Bahrain, intervention in Libya, looked the other way when the Egyptian armed forces staged a bloody coup to overthrow the first ever democratically elected leader in the country’s history, and seemed bewildered by what to do in Syria, even seeming to give tacit tactical backing to jihadist anti-regime forces and to Kurdish militant entities previously regarded as ‘terrorist organizations.’

 

V

 

Conclusion: What should be done to calm the situation is in sharp tension with the realistic assessment of what is politically possible. For example, the special relationships with Israel and Saudi Arabia should be abandoned, and replaced by normal relationships based on true mutuality and respect for human rights and international law. Pressure should be mounted to establish a just and sustainable peace that acknowledges rights of self-determination of both Israeli and Palestinians. Further, foreign policy in the Middle East should be carried out in accord with the guidelines of international law and with respect for the authority of the United Nations. Finally, self-determination of peoples in the Middle East offers the only hope for legitimating the state system within the region. It seems obvious that without a sea change in perceptions and behavior of the West there is no prospect for overcoming the failures of American foreign policy in the Middle East. These failures have contributed to the turmoil, oppressiveness, and migratory and terrorist spillovers from the region. At present, there seems no likelihood of such a sea change, and so we must expect more of the same sense of failure and frustration.

At least, the citizenry can begin to understand what is wrong with American foreign policy in the Middle East.

 

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Kuala Lumpur War Crimes Tribunal: Bush and Blair Guilty

29 Nov

This post is modified version of a text published by Al Jazeera a few days ago. It is a sequel to the piece entitled “Toward a Jurisprudence of Conscience,” and will be followed by an assessment of the Russell Tribunal on Palestine session in Cape Town, South Africa investigating the allegations that Israel is guilty of imposing apartheid on the Palestinian people, considered by the Rome Treaty framework of the International Criminal Court to be a crime against humanity.

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

 


Criminal Justice in Kuala Lumpur

 

            In Kuala Lumpur, after two years of investigation by the Kuala Lumpur War Crimes Commission (KLWCC), a tribunal (Kuala Lumpur War Crimes Tribunal or KLWCT) consisting of five judges with judicial and academic backgrounds reached a unanimous verdict that found George W. Bush and Tony Blair guilty of crimes against peace, crimes against humanity, and genocide as a result of initiating the Iraq War in 2003, and in the course of maintaining the subsequent occupation. The proceedings took place over a four day period from November 19-22, and included an opportunity for court appointed defense counsel to offer the tribunal arguments and evidence on behalf of the absent defendants who had been invited to offer their own defense or send a representative, but declined to do so. The prosecution team was headed by two prominent legal personalities with strong professional legal credentials: Gurdeal Singh Nijar and Francis Boyle. The verdict issued on November 22, 2011 happens to coincide with the 48th anniversary of the assassination of John F. Kennedy.

 

            The tribunal acknowledged that its verdict was not enforceable in a normal manner associated with a criminal court operating within a sovereign state or as constituted by international agreement as is the case with the International Criminal Court or by acts of the United Nations as occurred in the establishment of the ad hoc International Criminal Tribunal for former Yugoslavia. But the KLWCT by following a juridical procedure purported to be operating in a legally responsible manner, which would endow its findings and recommendations with a legal weight that seems expected to extend beyond a moral condemnation of the defendants, but in a manner that is not entirely evident.

 

            The KLWCT added two ‘Orders’ to its verdict that had been adopted in accordance with the charter of the KLWCC that controlled the operating framework of the tribunal: 1) Report the findings of guilt of the two accused former heads of state to the International Criminal Court in The Hague; 2) Enter the names of Bush and Blair in the Register of War Criminals maintained by the KLWCC.

 

            The tribunal these Orders by adding recommendations to its verdict: 1) Report findings in accord with Part VI (calling for future accountability) of the Nuremberg Judgment of 1945 addressing crimes of surviving political and military leaders of Nazi Germany; 2) File reports of genocide and crimes against humanity at the International Criminal Court in The Hague; 3) Approach the UN General Assembly to pass a resolution demanding that the United States end its occupation of Iraq; 4) Communicate the findings of the tribunal to all members of the Rome Statute (governing the International Criminal Court) and to all states asserting Universal Jurisdiction that allows for the prosecution of international crimes in national courts; 5) Urge the UN Security Council to take responsibility to ensure that full sovereign rights are vested in the people of Iraq and that the independence of its government be protected by a UN peacekeeping force.

 

The Anti-War Campaign of Mahathir Mohamed

 

            These civil society legal initiatives are an outgrowth of a longer term project undertaken by the controversial former Malaysian head of state, Mahathir Mohamed, to challenge American-led militarism and to mobilize the global south to mount an all out struggle against the war system.  This vision of a revitalized struggle against war and post-colonial imperialism was comprehensively set forth in Mahathir’s remarkable anti-war speech of February 24, 2003, while still Prime Minister, welcoming the Non-Aligned Movement to Kuala Lumpur for its XIIIth Summit. Included in his remarks on this occasion were the following assertions that prefigure the establishment of the KLWCC and KLWCT:  “War must be outlawed. That will have to be our struggle for now. We must struggle for justice and freedom from oppression, from economic hegemony. But we must remove the threat of war first. With this Sword of Democles hanging over our heads we can never succeed in advancing the interests of our countries.
War must therefore be made illegal. The enforcement of this must be by multilateral forces under the control of the United Nations. No single nation should be allowed to police the world, least of all to decide what action to take, [and] when.”
Mahathir stated clearly on that occasion that his intention in criminalizing the behavior of aggressive war making and crimes against humanity was to bring relief to victimized peoples with special reference to the Iraqis who were about to be attacked a few weeks later and the Palestinians who had long endured mass dispossession and an oppressive occupation. This dedication of Mahathir to a world without war was reaffirmed through the establishment of the Kuala Lumpur Foundation to Criminalize War, and his impassioned inaugural speech opening a Criminalizing War Conference on October 28, 2009.

 

            On February 13, 2007 Mahathir called on the KLWCC to prepare a case against Bush and Blair whom he held responsible for waging aggressive warfare against Iraq. Mahathir, an outspoken critic of the Iraq War and its aftermath, argued at the time that there existed a need for an alternative judicial forum to the ICC, which was unwilling to indict Western leaders, and he was in effect insisting that no leader should any longer be able to escape accountability for such crimes against nations and peoples. He acknowledged with savage irony the limits of his proposed initiative: “We cannot arrest them, we cannot detain them, and we cannot hang them the way they hanged Saddam Hussein.” Mahathir also contended that “The one punishment that most leaders are afraid of is to go down in history with a certain label attached to them..In history books they should be written down as war criminals and this is the kind of punishment we can make to them.” With this remark Mahathir prefigured the KLWCC register of war criminals that has inscribed the names of those convicted by the KLWCT. Will it matter?

Does such a listing have traction in our world? Will future leaders even know about such a stigmatizing procedure? I think civil society is challenged to

do its best to build ‘negative’ monuments in the public squares of global consciousness constructed with a deliberate intent to disgrace those guilty of crimes against peace and crimes against humanity. For too long our public squares have been adorned with heroes of war!

 

            In his 2007 statement Mahathir promised that a future KLWCT would not in his words be “like the ‘kangaroo court’ that tried Saddam.” Truly, the courtroom proceedings against Saddam Hussein was a sham trial excluding much relevant evidence, disallowing any meaningful defense, culminating in a grotesque and discrediting execution. Saddam Hussein was subject to prosecution for multiple crimes against humanity, as well crimes against the peace, but the formally ‘correct’ trappings of a trial could not obscure the fact that this was a disgraceful instance of ‘victors’ justice. Of course, the media, to the extent that it notices civil society initiatives at all condemns them in precisely the same rhetoric that Mahathir used to attack the Saddam trial, insisting that the KLWCT is ‘a kangaroo court,’ ‘a circus,’ a theater piece with pre-assigned roles.

 

            The KLWCT did I think make a mistake by establishing a defense team for Bush and Blair, and then failing to present their best possible arguments. Instead, a sheepish defense based on their acknowledging human failings for engaging in criminal conduct did create an impression that this ‘tribunal’ was not assessing the legal merits of the charges, but merely in reinforcing the preordained guilt of these particular individuals. In reporting on the defense effort, the following excerpt is illustrative of this self-discrediting as aspect of the approach taken by the KLWCT: “Lead Defense Counsel continued, ‘Had George W. Bush said  ‘we know who you are, we know what you did, and we forgive you,’ the world could have been a much different place.  But, instead, Afghanistan, Iraq, Guantanamo happened.  We are fallible human beings.  We make mistakes. And the Defense stated that the defense of Bush and Blair defense is that the accused ‘are human.’” Such a mock atonement, which does not correspond with the continuing effort of these former leaders to justify their Iraq War policy, was entirely inappropriate and erodes both the persuasiveness and credibility of the undertaking. It may be that an empty chair would have been the most suitable way to acknowledge the absence of the defendants from the courtroom, despite being given an opportunity to

present their best defense, or if it was decided to mount a defense on their behalf, then it should have done as skillfully and persuasively as possible.

The KLWCT has already announced a subsequent session devoted to the torture allegations directed at such American political leaders as former Vice President, Dick Cheney, and former Secretary of Defense, Donald Rumsfeld. Hopefully, the question of how to handle absent defendants will be handled in a better manner. The basic choice is whether to mount a genuine defense or to forego a defense on the belief that the purpose of the tribunal is to document the allegations and to pass judgment in overcome the refusal of governmental and inter-governmental judicial institutions to address such geopolitically sensitive issues. It is not clear whether the KLWCT effort to imitate the criminal procedures of tribunals constituted by the state system if the best model for these civil society initiatives. Perhaps, it is time to evolve a distinctive language, norms, institutions, and procedures that

reflect both the populist foundations of a jurisprudence of conscience.

 

            Although receiving extensive local coverage, Western media without exception has ignored this proceeding against Bush and Blair, presumably considering it as irrelevant and a travesty on the law, while giving considerable attention to the almost concurrent UN-backed Cambodia War Crimes Tribunal prosecuting surviving Khmer Rouge operatives accused of genocidal behavior in the 1970s. For the global media, the auspices make all the difference.

 

 

Universal Jurisdiction

 

            The KLWCT did not occur entirely in a jurisprudential vacuum. It has long been acknowledged that domestic criminal courts can exercise Universal Jurisdiction for crimes of state wherever these may occur, although usually only if the accused individuals are physically present in the court. In American law the Alien Tort Claims Act allows civil actions provided personal jurisdiction of the defendant is obtained for crimes such as torture committed outside of the United States. The most influential example was the 1980 Filartiga decision awarding damages to a victim of torture in autocratic Paraguay (Filartiga v. Peña 620 F2d 876). That is, there is a sense that national tribunals have the legal authority to prosecute individuals accused of war crimes wherever in the world the alleged criminality took place. The underlying legal theory is based on the recognition of the limited capacity of international criminal trials to impose accountability in a manner that is not entirely dictated by geopolitical priorities and reflective of a logic of impunity. In this regard, UJ has the potential to treat equals equally, and is very threatening to the Kissingers and Rumsfelds of this world, who have curtailed their travel schedules. The United States and Israel have used their diplomatic leverage to roll back UJ authority in Europe, especially the United Kingdom and Belgium.

 

 

The Move to Civil Society Tribunals

 

            To a certain extent, the KLWCT is taking a parallel path to criminal accountability. It does not purport to have the capacity to exert bodily punishment or impose a financial penalty, and rather stakes its claims to effectiveness on publicity, education, and symbolic justice. Such initiatives have been undertaken from time to time since the Russell Tribunal of 1966-67 to address criminal allegations arising out of the Vietnam War whenever there exists public outrage and an absence of an appropriate response by governments or the institutions of international society. The Lelio Basso Foundation in Rome established in 1976 a Permanent Peoples Tribunal (PPT) that generalized on the Russell experience. It was founded on the belief that there was an urgent need to fill the institutional gap in the administration of justice worldwide that resulted from geopolitical manipulation and resulting formal legal regimes of ‘double standards.’ Over the next several decades, the PPT addressed a series of issues ranging from allegations of American intervention in Central America and Soviet intervention in Afghanistan to contentions about the denial of human rights in the Marcos dictatorship in the Philippines, the dispossession of Indian communities in Amazonia, and the denial of the right of self-determination to the Puerto Rican people.

 

            The most direct precedent for KLWCT was World Tribunal on Iraq held in Istanbul (WTI) in 2005, culminating a worldwide series of hearings carried on between 2003-2005 on various aspects of the Iraq War. As with KLWCT it also focused on the alleged criminality of those who embarked on the Iraq War. WTI proceedings featured many expert witnesses, and produced a judgment that condemned Bush and Blair among others, and called for a variety of symbolic and societal implementation measures. The jury Declaration of Conscience included this general language: “The invasion and occupation of Iraq was and is illegal. The reasons given by the US and UK governments for the invasion and occupation of Iraq in March 2003 have proven to be false. Much evidence supports the conclusion that a major motive for the war was to control and dominate the Middle East and its vast reserves of oil as a part of the US drive for global hegemony… In pursuit of their agenda of empire, the Bush and Blair governments blatantly ignored the massive opposition to the war expressed by millions of people around the world. They embarked upon one of the most unjust, immoral, and cowardly wars in history.” Unlike KLWCT the tone and substance of the formal outcome of the Iraq War Tribunal was moral and political rather than strictly legal, despite the legal framing of the inquiry. For a full account see Muge Gursoy Sokmen, World Tribunal on Iraq: Making the Case Against War (2008).

 

Justifying Tribunals of Popular Justice and Public Conscience

 

            Two weeks before the KLWCT, a comparable initiative in South Africa was considering allegations of apartheid directed at Israel in relation to dispossession of Palestinians and the occupation of a portion of historic Palestine (Russell Tribunal on Palestine, South African Session, 5-7 November 2011). All these ‘juridical’ events had one thing in common: the world system of states and institutions was unwilling to look a particular set of facts in the eye, and respond effectively to what many qualified and concerned persons believed to be a gross historical and actual circumstance of injustice. In this regard there was an intense ethical and political motivation behind these civil society initiatives that invoked the authority of law. But do these initiatives really qualify as ‘law’? A response to such a question depends on whether the formal procedures of sovereign states, and their indirect progeny—international institutions—are given a monopoly over the legal administration of justice. I would side with those that believe that people are the ultimate source of legal authority, and have the right to act on their own when governmental procedures, as in these situations, are so inhibited by geopolitics that they fail to address severe violations of international law.

 

            Beyond this, we should not neglect the documentary record compiled by these civil society initiatives operating with meager resources. Their allegations are almost always exhibit an objective understanding of available evidence and applicable law, although unlike governmental procedures this assessment is effectively made prior to the initiation of the proceeding. It is this advance assurance of criminality that provides the motivation for making the formidable organizational and fundraising effort needed to bring such an initiative into play. But is this advance knowledge of the outcome so different from war crimes proceedings under governmental auspices? Indictments are made in high profile war crimes cases only when the evidence of guilt is overwhelming and decisive, and the outcome of adjudication is known as a matter of virtual certainty before the proceedings commence. In both instances the tribunal is not really trying to determine guilt or innocence, but rather is intent on providing the evidence and reasoning that validates and illuminates a verdict of guilt and resulting recommendations in one instance and criminal punishment in the other. It is of course impossible for civil society tribunals to enforce their outcomes in any conventional sense. Their challenge is rather to disseminate the judgment as widely and effectively as possible. A PPT publication in book form of its extensive testimony and evidence providing the ethical, factual, and legal rationale for its verdict proved sometimes to be surprisingly influential. This was reportedly the case in exposing and generating oppositional activism in the Philippines in the early 1980s during the latter years of the Marcos regime.

 

The Legalism of the KLWCT

 

            The KLWCT has its own distinctive identity. First of all, the imprint of an influential former head of state in the country where the tribunal was convened gave the whole undertaking a quasi-governmental character. It also took account of Mahathir’s wider campaign against war in general. Secondly, the assessing body of the tribunal was composed of five distinguished jurists, including judges, from Malaysia imparting an additional sense of professionalism. The Chief Judge was Abdel Kadir Salaiman, a former judge of Malaysia’s federal court. Two other persons who were announced as judges were recused at the outset of the proceedings, one because of supposed bias associated with prior involvement in a similar proceeding, and another due to illness. Thirdly, there was a competent defense team that presented arguments intended to exonerate the defendants Bush and Blair, although the quality of the legal arguments offered was not as cogent as the evidence allowed.

 

            Fourthly, the tribunal operated in rather strict accordance with a charter that had been earlier adopted by the KLWCC, and imparted a legalistic tone to the proceedings. It is this claim of legalism that is the most distinctive feature of the KLWCT in relation to comparable undertakings that rely more on an unprofessional and loose application of law by widely known moral authority personalities and culturally prominent figures who make no pretense of familiarities with the technicalities of legal procedure and the fine points of substantive law. In this respect the Iraq War Tribunal (IWT) held in Istanbul in 2005 was more characteristic, pronouncing on the law and offering recommendations on the basis of a politically and morally oriented assessment of evidence by a jury of conscience presided over by the acclaimed Indian writer and activist Arundhati Roy and composed of a range of persons with notable public achievements, but without claims to expert knowledge of the relevant law, although extensive testimony by experts in international law did give a persuasive backing to the allegations of criminality. Also unlike KLWCT, the IWT mad no pretense of offering a defense to the charges.

 

Tribunals of ‘Conscience’ or of ‘Law’?

 

            It raises the question for populist jurisprudence as to whether ‘conscience’ or ‘law’ is the preferred and more influential grounding for this kind of non-governmental initiative. In neither case, does the statist-oriented mainstream media pause to give attention, even critical attention. In this regard, only populist democratic forces with a cosmopolitan vision will find such outcomes as Kuala Lumpur notable moves toward the establishment of what Derrida called the ‘democracy to come.’ Whether such forces will become numerous and vocal enough remains uncertain. One possible road to greater influence would be to make more imaginative uses of social networking potentials to inform, explain, educate, and persuade.

This recent session of the Kuala Lumpur War Crimes Tribunal offers a devastating critique of the persisting failures of international criminal law mechanisms of accountability to administer justice justly, that is, without the filters of impunity provided by existing hierarchies of hard power. So whatever the shortcomings of the KLWCT it definitely moved to close the criminal justice gap that now protects what might be called ‘geopolitical criminals’ from accountability for their crimes against peace and crimes against humanity, and this is a move, however haltingly, toward global justice and the global rule of law.