Tag Archives: United States

Kissinger: A Hero of Our Time

20 Sep

[Prefatory Note: The essay on Henry Kissinger’s World Order (2014) below was initially published in Millennium: Journal of International Studies 2015, Vol. 44(1) 155–164. For me, Kissinger was the anti-hero, somehow available to justify the unjustifiable, and situate himself in a tradition of statecraft that celebrated the European invention of modern international relations in the 17th-19th centuries. This self-styled realist tradition marginalizes law and morality, posits a fatalistic sense of human destiny, and is dismissive of the pursuit of peace and justice. In Kissinger’s case he climbed to the pinnacles of American state power, and was far from the worst advocate of global primacy based on military superiority. The fact that he owed his prominence to setting forth an argument supporting the feasibility of limited nuclear war branded him with the mark of Cain while still making his way behind the ivy of Harvard University. At the same time, we should not neglect Kissinger’s worldview just because it is antipathetic, especially as he has some important observations about how China’s rise to prominence in world history contrasts with the way in which Europe gained ascendancy.]





Henry Kissinger: A Hero of Our Time


“A Hero of Our Time, my dear readers, is indeed a portrait, but not of one man. It is a portrait built up of all our generation’s vices in full bloom. You will again tell me that a human being cannot be so wicked, and I will reply that if you can believe in the existence of all the villains of tragedy and romance, why wouldn’t you believe that there was a Pechorin? If you could admire far more terrifying and repulsive types, why aren’t you more merciful to this character, even if it is fictitious? Isn’t it because there’s more truth in it than you might wish?”

Mikhail Lermontov, Preface, A Hero of our Time


Combining the features of savant and war criminal, as well as renowned the world over as master statesman, Henry Kissinger deserves the dubious accolade of being ‘a hero of our time’ in the fully ironic sense meant by the Russian novelist, Mikhail Lermontov. Kissinger seems indictable for a series of offenses that deserve accountability in a law-abiding world: deliberate killing of civilians in Indochina; overt complicity in relation to mass killing in Bangladesh; positive association with plan to assassinate a major official in Chile; involvement in conspiracy to kill the head of state in Cyprus; incitement to genocide in East Timor; and direct involvement in plans to kidnap and kill a journalist living in Washington DC.[1] That Kissinger remains not only at large, but the object of reverence the world over, tells us quite a bit about the degree to which geopolitical celebrity trumps accountability and justice when it comes to status and reputation on a global scale.


Additional to Kissinger’s apparent criminality associated with his role as a governmental official developing and implementing American foreign policy in a variety of crucial settings was his earlier assertions of influence as a policy oriented intellectual at a leading American university. Kissinger, as a Harvard professor of international relations, skillfully professed views that proved useful to men who coveted and exercised power on behalf of the United States. Even before he entered government as Richard Nixon’s expert on foreign policy, the Council on Foreign Relations, a gatekeeping venue for the highest echelons of government, otherwise known as ‘the establishment,’ had bestowed stardom on Kissinger in recognition of these contributions to the policy forming community. His initial notoriety rested on an early book arguing the case for accepting the prospect of limited nuclear war as a means of offsetting Soviet superiority in conventional warfare in Europe.[2]



Later when serving as National Security Advisor and Secretary of State, Kissinger exerted an enormous influence on the development of American foreign policy. He managed to surround his undertakings with an aura of the invincible maestro of realpolitik, a contemporary counterpart of his own illustrious mentors, Machiavelli and Richelieu.[3]


A weird part of Kissinger’s claim to heroic stature was his extraordinary capacity to be repeatedly wrong about almost every major foreign policy decision made by the United States Government over the course of the last half-century, and yet manage continually to enhance his reputation and influence as the nation’s wisest guide on how the country should shape its role and behavior overseas when facing the next crisis. Kissinger was a supporter of the Vietnam War from start to finish, he even favored the disastrous Iraq War, and of course, the Afghanistan War. To leave us in no doubt as to his deepest inclinations, Kissinger even goes out of his way in this book to laud the presidency of George W. Bush by affirming his “continuing respect and personal affection for President George W. Bush, who guided America with courage, dignity, and conviction in an unsteady time. His objectives and dedication honored his country even when in some cases they proved unattainable within the American political cycle.” [324-25]. Phrase by phrase this is a remarkable encomium considering the degree to which Bush’s core policies turned out to have been such a disaster by almost any measure, with the 2003 attack and subsequent occupation of Iraq being a major contributing cause to the regional turmoil that has brought such massive suffering and political chaos to the Arab world, as well as seriously compromising U.S. goals in the region. To give his blessings to such a failed presidency is mystifying unless one takes into account of Kissinger’s worshipful attitude toward the high and mighty in the conservative American political establishment, and his extraordinary Teflon protective coating that has inoculated him over the years against the normal consequence of policy failures and ugly misdeeds.


It is fair to wonder at this point why I should be writing a review Kissinger’s ideas if I regard him as a disreputable public figure. My answer centers upon an appreciation of the man as an emblematic representative of global leadership in our historical era, and hence of Kissinger as truly ‘a hero’ worthy of our attention. It is not that his ideas are sympathetic, compelling, or even innovative, but rather that despite his long record of wrongdoing, Kissinger’s words continue to be taken seriously as policy guides entitled to the utmost respect by opinion-makers around the world.[4] Beyond this, his comprehensive presentation of the contours of past, present, and possible future world orders, while pretentious and superficial, does provide a helpful commentary on policy choices of immense significance, offering readers a useful platform for dialogue as to the global political future. Despite my reservations, the World Order offers a good basis for seminar discussions in an international relations course or for a reading group of attentive citizens who gather on a monthly basis to ponder the state of the world.


Kissinger is something more than a public figure that has guided and advised some of America’s most influential world leaders. He is also a student of international relations with a rare combination of diplomatic experience at the highest level, a broad historical knowledge of the conceptual underpinnings of statecraft in the modern world, and a street smart talent for gaming the system to his personal advantage. In this respect, the book under consideration, World Order, is likely to be treated as the culminating expression of Kissinger’s worldview and intellectual legacy.[5] And while it is devoid of empathy for the vulnerable or an appreciation of the ecological dangers facing humanity, it does frame debate on global policy in this post-colonial, post-Cold War setting in some useful ways if account is taken of its limitations.


Kissinger’s diagnosis of the present historical situation poses an intriguing puzzle that adopts an unexpected outlook, given its source. For this sage who earlier believed that the European West had evolved a diplomacy that reflected the eternal verities of statecraft it is now surprising to find Kissinger at the start of this book issuing a dire warning to his readers: “Our age is insistently, at times almost desperately, in pursuit of a concept of world order.” Such a sentiment is followed by a haunting question that obviously worries Kissinger: “Are we facing a period in which forces beyond the restraints of any order determine the future?” (2) Kissinger can be read as saying that the dangers posed are a result of the failure of the major world political actors not to have on their own recognized and implemented the Westphalian logic within their own civilizational and religious spheres of influence. Such a lament is conditioned by the realization that in this post-colonial era a belated embrace of some kind of global Westphalian system of world order, while the best we can hope for, cannot happen without its spontaneous adoption by non-Western political actors doing what seems best to achieve their goals in ways that correspond with the deeply embedded cultural values.


What troubles Kissinger most is the disorder that exists in the post-colonial world where the West can no longer run the global show by itself. He believes that the present challenge is to blend “divergent historical experiences and values” into “a common order.” (10) In his view “[a] reconstruction of the international system is the ultimate challenge to statesmanship in our time.” (371) Without this challenge being met Kissinger envisions a “struggle between regions” that might turn out to “be more debilitating than the struggle between nations has been.” (371) He is also worried by the challenges associated with the rise of non-state political actors that do not fit within the template of the only world order that Kissinger knows, the one constituted by the interplay of territorial sovereign states.


In setting forth the nature of this defining quest Kissinger posits several requirements that he never reconciles. He insists that a new global order to be successfully established requires that its central rules and limit conditions are the result of a participatory, non-hegemonic process of relevant actors. Kissinger asserts that only by way of such an existential bonding process will a re-framing of world order have the legitimacy to engender commitment and adherence in a historical situation where the West has lost its dominion over the non-West. In Kissinger’s words: “Any system of order, to be sustainable, must be accepted as just—not only by the leaders but also by citizens. It must reflect two truths: order without freedom, even if sustained by momentary exaltation, eventually creates its own counterpoise; yet freedom cannot be secured or sustained without a framework of order to keep the peace.” (8) This passage is illustrative of the degree to which throughout this text the abstractions of language provide Kissinger with a useful comfort zone of obscurity. In over 400 pages we look in vain to find out what ‘freedom’ means beyond a vague affirmation of the American political experience. (e.g. 235-36).


The tone and message of World Order rests in the end on an affirmation of American exceptionalism as interpreted by Kissinger. The opening lines of the book describe a visit of homage made in 1961 to Harry Truman while Kissinger was a “young academic.” Truman was of course the former American president that took over from Franklin Roosevelt at the end of World War II and then did his part to launch the Cold War. Kissinger admiringly quotes Truman to disclose the distinctive essence of America’s political character: “That we totally defeated our enemies and then brought them back to the community of nations. I would like to think that only America would have done this.” (1)


With the blinkered vision of a true believer, Kissinger adds his own gloss: “All of Truman’s successors have followed some version of this narrative and have taken pride in similar attributes of the American experience.” (1) Such a portrayal of the American global role inflicts a notorious distortion on innocent readers. The truth is that United States has often been vindictive in the aftermath of wars and often not at all willing to help adversaries recover from devastating wartime experiences. For instance, in the lengthy negotiations ending the Vietnam War conducted on behalf of the United States by Kissinger, the reparations agreed upon were neither paid nor any subsequent effort made by Kissinger or the White House to have Congress uphold this clear diplomatic promise, which also was a recognition of a simple moral duty. In the aftermath of the First Gulf War (1991) the United States imposed a punitive peace on Iraq that included maintaining strict sanctions against a people that reportedly cost an additional several hundred thousand Iraqi civilian lives. And historically, the punitive peace imposed on Germany after World War I was undertaken with the deliberate intention of doing the opposite of what Truman claimed for American diplomacy after World War II. In part Truman’s postwar diplomacy represented his effort to avoid repeating the mistakes of Versailles that had earlier contributed to the rise of Hitler and the onset of a major war, as well as gave rise to a severe global economic depression. The disruption, oppression, and extremism that is now the tragic destiny of the Middle East can also be blamed on a ‘peace’ diplomacy one hundred years ago that distributed the spoils of war on the basis of colonial ambition rather than the wellbeing of peoples. How Kissinger, the purported student of history can overlook these features of the American role over its lifetime as a country, can be partly explained by his tendency to obtain historical impunity by invoking abstractions that have no discernible connection with the concrete realities that are supposedly encompassed by this overarching narrative of America’s global benevolence.


Kissinger associates the American goals in the world with the well-intentioned global projection of his idealized image of constitutional democracy as it functions in the United States. He clarifies this image as embodying “an American consensus—an inexorably expanding cooperative order of states observing common rules and norms, embracing liberal economic systems, foreswearing territorial conquest, respecting national sovereignty, and adopting participatory and democratic systems of governance.” (1) Where has this man been? He makes no effort to disentangle myth from performance as it has played out as the American global story has unfolded. Any casual student of history would know that the United States, almost from its birth, has been intervening throughout the Western Hemisphere, and since 1945 has intervened covertly and overtly in many parts of the world, and often with the purpose of dislodging democratically elected governments as it did

in Iran (1953), Guatemala (1954), and Chile (1973), the latter while Kissinger was making policy from his White House office.


It is true that Kissinger does fault the idealistic tendencies of American foreign policy, which he believes reached the peak of unknowing during the latter years of Woodrow Wilson’s presidency. In appraising American political leaders Kissinger contrasts those he most admires (Truman, Teddy Roosevelt, and Nixon) with those he finds dangerously naïve (especially Wilson, but also Carter, Clinton, Obama). Essentially, Kissinger affirms those political leaders that share his belief that hard power is the main agent of historical change, as well as the capstone of stability and ‘peace’ (understood minimally as the absence of major war), and in this regard, he finds the ideas that were launched in 1648 by the Peace of Westphalia as the only workable foundation for international order. This Westphalian worldview in Kissinger’s presentation rests on two organizing principles: respect for territorial sovereignty and reliance on countervailing power as necessary to deter potential aggression. As indicated, Kissinger recognizes that this statist framework was European in origin, and if it is to work in a post-colonial era of globalization it will have to be endorsed by civilizational experiences that are quite different from that of Europe and North America. This is the challenge, as Kissinger sees it, of making the logic of Westphalia sufficiently attractive to China, India, and the Islamic community, so as to induce their governments to choose such a blend of respect of others with cooperation for mutual benefit as the one basis of 21st century world order that might work.


There are several problems with this formulation of the contemporary world order problematique. For one thing, it overlooks the vertical dimension of the Westphalian experience that has all along relied for order on the managerial roles of hegemonic claims and structures. This has been especially so for relations between the West and non-West, making it difficult for many countries and some regions to create political communities except through brute force. For another, Kissinger seems mostly blind to the fundamental challenge posed by nuclear weaponry and climate change, and hence sees no important role for international law or the United Nations.[6] In fact, one would look in vain for any sustained discussion by Kissinger of whether a global rule of law and strong central institutions are needed to protect the global interest against the predatory behavior of a world of national governments led by officials with very uneven endowments and perceptions.[7] There is absent any consideration of how to create global governance without the commitment of political actors to uphold human interests on the basis of species identity. Even more striking is the failure to discuss the viability of capitalism as means to achieve the desired ends of world order based on the recognition that sustainable order presupposes legitimate order.[8] One wonders how this market-based system can be deemed even potentially legitimate given the persistence of mass poverty, gross inequalities, widespread corruption, the predatory plundering of the resources of the planet, and increasingly dire expectations of water scarcities and multiple forms of ecological decay.


Overcoming such obstacles presupposes that the values of the main competing centers of regional civilizational identity can be embodied in the new world order. In Kissinger’s view this would now entail combining power and legitimacy on a worldwide basis, and not just offering to organize the world along pre-European Union lines. In the prior historic periods, there were distinct regional forms of order of which central attention is given to that evolved by China and the Islamic world. These are also alternative conceptions of world order to that developed by the West, although challenged and encroached upon by colonialism. Kissinger makes clear that he is particularly drawn to the Chinese soft power foundations of its national greatness, which enjoys the capacity to overwhelm others essentially by reliance on its cultural superiority and the sheer density of its demographic and geographic reality.[9] According to Kissinger, China has succeeded in neutralizing those barbarian forces that have from time to time penetrated its borders by sheer patience, and although it has expressed a defensive mentality by the immense undertaking of the Great Wall, and yet unlike the West, conquest and missionary belligerence has not been its style.


In contrast, Islam has a totalizing vision that associates its domain with peace and righteousness (‘dar al-Islam’), and all else as the domain of infidels and war (‘dar al-harb’). With its religious sense of political community as bases on the umma, the extension of the Western state system to the Islamic world has been problematic and hence illegitimate, especially for those states that are products of colonial ambition as in the Middle East and parts of Africa. Whether such states can even retain their current territorial boundaries is one of the unanswered questions. If not, the likely near term reality is the reemergence of ethnically and religiously bounded communities that either exist autonomously within existing borders or break away to form their own states. In effect, without historical or philosophical depth, Kissinger depicts the Arab world, in particular, as a region of ‘failed states’ for which there is no solution other than military containment and intervention to prevent the disorder spilling over as with the 9/11 attacks.


In the end Kissinger seems to hope that a form of global Wesphalian world order will emerge because states everywhere seek to preserve as much of their autonomy as possible while cooperating to promote common interests in trade and investment. This duality exhibits both a recognition of the realities of economic globalization as conditioned by the non-viability of major warfare given the existence of nuclear weaponry. Kissinger is fully conscious of the extent to which the European invention and development of the state system in the middle of the 17th century responded to distinctively European circumstances, especially an interest in overcoming deadly religious wars and the formation of political communities that were large and stable enough to support efficient economic growth. This Westphalian innovation cannot be globalized despite the intensifying functional imperatives to do so unless the other main political actors on the world stage can agree that such an order serves their interests and is consistent with their values. It also must be perceived as a joint undertaking, not a plan hatched in the West or a byproduct of the American reality as the world’s only global state. World order of global scope in its architectural phases becomes an inter-civilizational soft power project that contrasts with the earlier hard power structures imposed by the global reach of European colonialism. However for Kissinger, seeming unperturbed by contradiction, this new undertaking still presupposes the stabilizing reinforcement of hard power diplomacy and warmaking capabilities, with the United States acting in a meta-regional managerial role.


Kissinger, not without reason, thinks that his world order scheme will only happen if China and the United States are able to make their relationship rest principally on the benefits of cooperation and partnership rather than rivalry and competition. In other words, not a second Cold War, but a new kind of geopolitical relationship that is sensitive to the importance of balancing and equilibrium, but without any ideological dimension of hostility toward the domestic public order system of the other. Kissinger is aware that wars often have broken out in the past when an emerging state seeks to revise the hierarchy of privilege and status that is encoded in the status quo or the hegemon threatened with displacement strikes before the challenger gets too strong. He wonders aloud whether the rising claims of China can be met without either ignoring their ambition or provoking a disastrous military confrontation.


Kissinger considers the United States, despite everything from Hiroshima to drones, as continuing to be the main benevolent force active in history over the course of the last hundred years, especially to the extent it is able to suppress its national proclivity to indulge idealistic temptations that ignore Westphalian parameters. Kissinger appears to believe still that only military capabilities can serve as the ultimate guardian of the public good. In this regard he sees the American leadership role as at once “indispensable” and “ambivalent,” caught between the unrealistic wishful thinking of Woodrow Wilson and the creative realism of Teddy Roosevelt or Richard Nixon, the poles of thought and action that characterize the American global role over the course of its existence as an independent state. Kissinger wants to reconcile these antagonistic energies, and above all he remains deeply opposed to any further American retreat from the responsibilities of global leadership—in contemplating the American role, he says “[w]hat is does not permit is withdrawal.” (370) Kissinger insists that in the interactive reality of the present global situation any renewal of American isolationism would be a self-destructive dead end, and more to the point, he argues that the world needs a globally engaged United States as an offshore balancer that alone can provide the countervailing force that is needed in all regions of the world as a check on dangerous types of expansionism.


In effect, what Kissinger would like to see emerge is a series of regionally based political orders in which the United States is involved as a balancing presence, including in China’s backyard of Asia. This kind of formula pretends to avoid any effort to establish regional hegemony in any part of the world, and disavows an American search for dominance. In this sense Kissinger is arguing for a Westphalian order anchored in the actuality of the United States as the first global state in world history. It is a global state by virtues of its already established military presence throughout the world, reinforced by the dollar as a global currency, English as a global language, and American popular culture and consumerism as influential behavioral constructs everywhere. What Kissinger is proposing with a good deal of commentary on the necessity of taking account of existing diversities linked to demands for participation in the construction of such a legitimate world order is a system of global scope that is neither centralized by law or power. In this way, he acknowledges the interplay between political decentralization and a variety of globalizing tendencies without succumbing to what he would regard as utopian or totalizing traps. Rather cunningly, there is no discussion of how, given its capabilities and assigned leadership role, the United States would be deterred or its ambitions neutralized, or even whether this is necessary. When surveying the terrain of American politics this is a disabling flaw as it is entirely plausible to imagine a militarist Republican president taking over in 2016 with a mandate for safeguarding the nation and the world by waging continuous wars.



[1] This enumeration follows the list of indictable crimes provided by Christopher Hitchens in the Preface to his important book, The Trial of Henry Kissinger (London, UK: Verso, 2001). Hitchens offers considerable evidence to back up these allegations, as well as a rationale for why such it is important to conduct this exercise in symbolic accountability, for the latter see especially p. xi.



[2] Nuclear Weapons and Foreign Policy (New York: Council on Foreign Relations by Harpers, 1957), appropriately written under the auspices of the Council on Foreign Relations, which was responsible for bringing Kissinger to the attention of the political elite in the United States. Kissinger with his Harvard credentials, conservative Cold War politics, and unsentimental approach to the pursuit of national interests on the basis of hard power was a valuable advisor for those of Republican Party persuasion who sought the highest political office in the country.

[3] There is a consensus that the most important scholarly contribution made by Kissinger was his initial book on the mechanisms of the balance of power as operative in 19th century Europe based on the interplay between military capabilities and dynastic legitimacy, as well as admiring portrayals of the statesmen who grasped the Hobbesian logic that made this system work to sustain the established order. A World Restored: Metternich, Castlereagh, and the Problem of Peace, 1812-22 (Boston, MA: Houghton Mifflin, 1957

[4] Illustrative of such influence is full page assessment of the controversial framework agreement tentatively reached in April 2015 with respect to the international regulation of Iran’s nuclear program. It is rare for the Wall Street Journal to devote its entire opinion section to a single article, and although George P. Shultz is listed as a co-author, the attention accorded to the article is a reflection of Kissinger’s unique stature as foreign policy guru. Kissinger & Shultz, “The Iran Deal and Its Consequences,” Wall Street Journal, April 8, 2015, A13.

[5] Such earlier books as Diplomacy (New York: Simon & Schuster, 1984) and On China (New York, Penguin Press, 2011) are part of his effort to write conceptual memoirs that argue the case for the rightness of his policies and even more so, for his understanding of how the world is organized and operates. All of Kissinger’s writing, carried on in tandem with his work as consultant to the rich and powerful throughout the world via his firm Kissinger Associates founded in 1982. These undertakings share a single minded devotion to self-serving efforts to nail down his reputation as the hero of the age. If mainstream media is to be trusted, which of course it is not, Kissinger has succeeded in becoming the iconic source of foreign policy wisdom for mainstream media audiences, his name being continuously invoked as the most authoritative commentator on foreign policy now alive.

[6] For nuclear weapons, Kissinger reduces the challenge to one of nonproliferation overlooking his own endorsement of abolition of such weaponry resulting from a perception that the nonproliferation regime is unlikely to be able to contain the spread of nuclear weapons in the future. (see 330-41). In an earlier article written in collaboration Kissinger does join in suggesting that the best way to stop further proliferation of nuclear weapons is to eliminate them altogether from military arsenals. See George P. Shultz, William J. Perry, Henry Kissinger, Sam Nunn, “A World Free of Nuclear Weapons,” Wall Street Journal, Jan. 4, 2007.

[7] Elsewhere Kissinger has been directly contemptuous of the role of international law and morality in the conduct of American foreign policy. See e.g. Diplomacy, note 5.

[8] For relevant discussion see Stephen Gill & A, Claire Cutler, eds., New Constitutionalism and World Order (Cambridge, UK: Cambridge University Press, 2014).

[9] Clearly Kissinger has through his own diplomatic experience and scholarly inquiry has developed a deep admiration of the achievement and durability of Chinese civilization as appraised from the perspective of world order. This discovery of Kissinger’s later life corrects his earlier insistence that Westphalian world order as the only game in town. See elaborations in his long book, On China, also discussion in chapters devoted to China(212-75).

The Horrifying Syrian Dilemma Persists

15 Sep



[Prefatory Note: This post is a somewhat modified version of the text published on the Middle East Eye website on September 9, 2015, and here by prior arrangement.]


On its surface Syria offers seems an ideal case for humanitarian intervention. An incredible half of the 23 million Syrians are either internally displaced or refugees living in dire circumstances, aggravating the migrant crisis currently overwhelming Europe. What is worse, mass atrocities have continued under the authority of the Damascus regime since March 2011, and to some degree by actions of the opposition. Further, for more than a year ISIS has emerged as a principal opposition force in Syria, and is responsible for unprecedented barbarism in large areas of the country under its control.


Beyond this, a diplomatic resolution of the conflict has so far failed miserably. The UN has appointed several distinguished Special Envoys who have resigned in disgust unable to rely on ceasefire reassurances from Bashar el-Assad. The two Geneva inter-governmental conferences that were convened with great effort ended in utter frustration. The United States is far from blameless, seemingly avoiding Russian compromises early on because it believed that the insurgency was on the verge of victory, and diminishing prospects later by insisting that Iran be excluded from the diplomatic process because of Israeli and Saudi sensitivities.


To complete this depressing picture, the parties to the conflict seem badly stuck, neither having a path to victory nor displaying any willingness to work toward a credible compromise. The opposition to the Assad government remains incoherent and disunited, and certainly seems incapable of offering Syria a workable alternative.


Not surprisingly given this overall situation, especially the spectacle of persisting civilian suffering, with its regional spillover effects destabilizing Lebanon, Iraq, and Turkey, is prompting a renewed call for humanitarian intervention, most influentially, in the form of a no fly zone (NFZ). It is contended that a well implemented NFZ could protect Syrians from the ravages being wrought by notorious barrel bombs. These terrible weapons are mainly used by Damascus to make civilian governance impossible in rebel held areas of the country. Proponents of intervention argue that once a NFZ is established it will ease civilian suffering, and might in due course exert sufficient pressure on the Syrian leadership to produce a political climate in which an acceptable diplomatic solution is finally attainable and this dreadful war brought to an end, a result that might even have at this point the benefit of a nudge from Iran and Russia.


Responsibility to Protect


The UN recently held a self-congratulatory session celebrating the 10th anniversary of the R2P (or responsibility to protect) norm, while acknowledging that there was work to be done considering the existence of ongoing killing fields as Syria, Iraq, South Sudan, Central African Republic, and North Korea. Notably absent from the list, a supreme instance of diplomatic tact at its hypocritical worst, was Gaza, and more generally, occupied Palestine, which since 2012 is after all a ‘state’ in the eyes of the General Assembly. Such other geopolitical touchy places as Kashmir, Rakhine, Xinjiang were also conveniently ignored in this effort to assess the record of R2P’s first decade. Leaving these awkward silences aside, at least the question should be asked: ‘Why has the R2P norm not been applied to Syria?’ The answer illuminates what is wrong with the cynical way world order operates in a post-Cold War setting, being more protective of trade and finance than it is of people, more motivated by oil than by a genuine humanitarian rescue mission.


The superficial obstacle to a R2P operation in Syria is the geopolitical standoff between states continuing to back the Assad regime and those supporting the opposition. This means that approval of an NFZ as a tactic compatible with the UN Charter is unavailable because of an anticipated Russian veto. Thus any use of force, such as establishing a NFZ, in either the north or south of Syria, or both, would neither have the backing of the UN Security Council nor qualify as self-defense under international law. This means that such an undertaking would violate the Charter on its key principle of prohibiting recourse to non-defensive international force without authorization from the Security Council, thereby disregarding the requirement of UN approval that is a critical feature of the R2P approach.


Proceeding outside the UN would further undermine the authority of international law with respect to war/peace issues. A less legalistic and constitutionalist explanation of this blockage arises from the dark side of the R2P precedent set in Libya back in 2011 when Russia and China and other SC members, despite their reluctance, were persuaded to allow a proposed humanitarian NFZ in Libya to be established only to find that the UN debate was a notorious instance of bait-and-switch. It was obvious that NATO’s intentions from the outset were far more expansive than the authorizing resolution in the Security Council, and once the military operation began immediately employed tactics seeking regime change in Tripoli rather than civilian protection for Benghazi. What seemed to skeptics of the R2P approach as an outright deception in its first test of R2P left a bad taste that has definitely discouraged a cooperative approach to Syria that engaged Russia. The Libyan precedent is not the whole story of relative passivity of the international community by any means. Syria’s antiaircraft capabilities also inhibited coercive action by making it more problematic to suppose that air power could shift the balance quickly and at moderate costs against the Assad regime.





Kosovo—A Poor Precedent


Then there is the earlier Kosovo precedent in which a humanitarian intervention was controversially carried out without UN approval, under the authority of NATO before the R2P norm existed and in the face of strong Russian opposition. Arguably, the operation was a success, Serbian oppressive rule ended, Kosovo and its people saved from an impending episode of ethnic cleansing similar to the Srebrenica massacre of Bosnian males (1995), and despite being ignored in the undertaking, the UN willingly entered the post-conflict scene in a big way to help Kosovo achieve transition to political independence. One influential appraisal of Kosovo pronounced the NATO intervention to be unlawful, yet legitimate, because it effectively removed a credible threat of imminent threat of mass atrocity at a moderate cost.

Several problems arise if relying on Kosovo to justify establishing a NFZ in Syria. First of all, Syria is a much larger country within which a civil war has been raging for more than four years causing an estimated 300,000 deaths, the Syrian government is reported to have sophisticated antiaircraft capabilities. Secondly, Europe was unified with regard to an anti-Serb intervention in Kosovo, with the partial exception of Greece, whereas the Middle East is so deeply divided with respect to Syria as to be engaged on opposite sides of a proxy war with sharp sectarian dimensions. Thirdly, the opponents of NFZ, unless persuaded to change their position, are more deeply involved, and have the capabilities to offset the impact of such an operation against their ally in Damascus.


Fourthly, assuming that a Syrian NFZ would be effective, the elimination of Syrian air power might actually work to the advantage of ISIS, which operates exclusively on the ground. Fourthly, unlike Kosovo where the U.S. was eager to demonstrate that NATO still had a role in the post-Cold War world, the geopolitical motivation in Syria remains confused and weak, being uncertain despite the passage of time. Also, the U.S. has had bad experiences with its recent interventions in the region, especially Iraq and Afghanistan, and wants to avoid being drawn into yet another war in a predominantly Muslim country. And fifthly, the present scene in Libya and Iraq show that handling the effects of even a militarily successful intervention can lead to prolonged chaos and militia governance. Such experiences of sustained chaos are not viewed by most of the affected population as improvements over the old authoritarian orders held together by the brutality of Qaddafi and Saddam Hussein, or Assad. When the alternatives are chaos or order, populist sentiments generally opt for order. This pattern has been evident throughout the region, especially in the aftermath of the short-lived Arab Spring.


Further in the background are considerations associated with state-centric world order in a post-colonial setting, which in the Middle East has left many bad memories of the harm the European colonial powers did to the region after the collapse of the Ottoman Empire in 1918. To override the sovereignty of a state, and its capacity for national resistance, ignores the experience of the world in the period since 1945 where almost every Western intervention has ended in political failure.


The West’s Dilemma


So here is the dilemma: to stand by doing nothing while mass atrocities occur year after year in Syria with no end in sight is an intolerable international failure of moral responsibility for human suffering of this innocent civilian population. Yet to do something that will actually improve the situation is far from obvious, and the record of NFZs in the kind of situation that exists in Syria is not encouraging, nor are other coercive alternatives. General Martin Dempsey, the American Chairman of the Joint Chiefs of Staff, recently warned against establishing a NFZ in Syria, pointing out that the government’s antiaircraft capabilities are at least five times greater than what Libya possessed, including some high end systems capable of shooting down high altitude planes.



There are some alternatives that try to find tactics that do something without making the situation worse. One sort proposal is to propose a more assertive approach by the United States, comprehensively advocated in a recent report of the International Crisis Group, believes that a series of non-military and covert initiatives could make a difference. It argues that this approach should start with what is logistically easier, a focus on the South of the country where moderate anti-regime forces are in greater control, and then if successful, extending such tactics to the more contested Northwest where Syrian antiaircraft pose a greater obstacle and ISIS has its strongholds.


All in all, the West cannot stand one more failed intervention in the Middle East, nor can it leave unattended a deep humanitarian crisis that spilling over Syrian borders. The burden in such a tragic situation should be placed on pro-interventionists to show convincingly how a NFZ can be established and maintained in the face of expected resistance from within and opposition from without. So far this burden has not been sustained. There are other ways to help alleviate civilian suffering and to exert greater pressure on Damascus that do not rely on such a blunt and unreliable instrument as a NFZ. In the background is the steadfast refusal of the United States or its European allies to be willing to contemplate an occupation of Syria via a ground attack, not because of legal or moral inhibitions, but due to the lack of political support for any military operation likely to result in significant casualties for the intervenor.


There exists a more drastic diplomatic approach that should have been tried long ago, and still seems worth the effort: bringing Iran and Russia into a peace process as major players, overriding objections by Saudi Arabia and Israel. Such a diplomatic atmosphere might at last create the war-ending conditions for compromise and cooperation that include putting pressure on Damascus. In such an altered setting, either a NFZ, or an equivalent proposal could find support within the Security Council or such a measure would no longer be needed. This diplomatic initiative is admittedly a long shot, but better than the alternatives of doing nothing or acting outside the framework of the UN and international law with scant prospects of success and big chances that things would go badly wrong. There are reliable reports circulating that the U.S. Government rejected a Russian backed initiative 2012 that would have included Assad being removed from power because Washington was then so convinced that the Damascus government was about to collapse in any event, and no diplomatic compromise was needed. At least, there is now a more realistic understanding of the balance of forces in Syria, and what form of compromise has any chance of being sustained. Unfortunately, however, with the emergence in the meantime of the al-Nusra Front and ISIS, difficult questions arise as to whether in the situation that prevails at present any compromise is sustainable unless externally maintained by a major international presence, which itself seems politically unattainable. 

What this prolonged dilemma in the face of mass atrocity shows is the deficiency of state-centric world order if appraised from the perspective of human wellbeing rather than national interests. The failures in Syria are not just the shortcomings of diplomacy and manipulations of geopolitics, but also a severe mismatch between structures and capabilities of global authority and the vulnerabilities of the peoples of the world. Until these structures are transformed on the basis of the human and global interests Syrian dilemmas in one form or another are bound to recur.

The Nuclear Challenge: 70 Years After Hiroshima and Nagasaki (2)

19 Aug

[Prefatory Note: What follows is a poem by David Krieger on what happened 70 years ago during those few fateful days in August that forever altered the human condition followed by the joint introduction that we contributed to Geoffrey Darnton’s Nuclear War and International Law, which was just published, and is available for purchase at the usual online outlets and via book store

Poetry is for David a seamless mode of expression that merges his life’s dedication to human wellbeing with his inner reflective consciousness, and bears a special relevance to his central mission of achieving a world without nuclear weapons. In my understanding, David’s poem that follows and others he has written dealing with other aspects of nuclearism enables him to enter what Thomas Merton and James Douglass identify as the domain of the unspeakable, and indeed virtually unimaginable. Most of us need poetry, film, and art to make authentic contact in those private and public situations where prose language and even an enlivened imagination cannot adequately express the extremities of experience. I think of the French film of Alain Resnais, ‘Hiroshima, Mon Amour’ (1959) and Picasso’s ‘Guernica’ as world class examples, but there are many.

Another form of authentic contact with the unspeakable is by way of pilgrimage to hallowed sites of desecration, and David has made such visits frequently, which often feature contact with hibakusha, survivors of the atomic attacks. As with the Holocaust, public atrocities of this enormity, constitute an inexhaustible occasion for mourning and reflections on the dark mysteries of evil, but unlike the memories associated with the Auschwitz experience, Hiroshima and Nagasaki have permanently and negatively affected the biopolitical contingency of the human species and its earthly habitat.

There is one further preliminary observation. Private atrocities, the death or terminal illness of one’s child or any deeply loved one, also gives rise to inexhaustible cascades of grief that can never be adequately expressed through reasoned narrative and never truly overcome. Such acute private losses because of their negative purity indirectly validate the reality of the absolute in human experience, and for closely related reasons helps us appreciate the extraordinary gravitational pull of the divine and sacred.

The special challenge of Hiroshima and Nagasaki is not merely to mourn and remember. It is rather a summons to devote our energies to rid the world of this curse that imperils human destiny for these past 70 years and as far ahead as we can discern. Denuclearization as a process of diminishing in all ways possible the threat posed by this weaponry and treating ‘getting to zero’ as the non-negotiable goal. This process and this goal can become attainable objectives if a sufficient political will is mobilized and becomes attached to a collective ambition to renounce nuclear weapons as an absolute prerequisite of human dignity.]









August 6th:

Dropped atomic bomb

On civilians

At Hiroshima.


August 8th:

Agreed to hold

War crimes trials

For Nazis.


August 9th:

Dropped atomic bomb

On civilians

At Nagasaki.



David Krieger




Foreword to New Edition of Decision of London Nuclear Warfare



Richard Falk & David Krieger


When the London Nuclear Warfare Tribunal was convened in 1985, the Cold War set the tone of international relations. Beyond this, Ronald Reagan was the most anti-Communist and belligerent American leader since the end of World War II. There was every reason to be worried that the risks of nuclear war had become unacceptable from the outlook of political prudence additional to their dubious moral and legal status. In this atmosphere the London Tribunal sought an authoritative assessment of the status of nuclear weapons and warfare under international law with the hope that this might move the political debate toward the embrace of nuclear disarmament.


Now 30 years later, the Cold War is over and Barack Obama, the current American leader declared in 2009 his resolve to work toward achieving a world without nuclear weapons. This message of hope and commitment was reinforced at the time by four prominent American political figures with strong realist credentials (Henry Kissinger, George Shultz, Sam Nunn, and William Perry) present the case for nuclear disarmament to avoid the further spread of nuclear weaponry. Yet as we reflect upon these issues in 2015 we note that there is not present among the nuclear weapons states the existence of a political will to place nuclear disarmament on the global policy agenda, much less evidence of a willingness by non-nuclear states to exert meaningful pressures.


Despite important shifts in conflict patterns, which make it more dangerous than ever that nuclear weapons will get into the hands of non-state political actors that would be inclined to disregard the horrifying consequences of use, there are no serious initiatives proposed by governments or through the United Nations to address this menacing challenge. What we find in 2015, instead of a sense of urgency, is a shared mood of complacency on the part of governments, international institutions, and international public opinion. Without the Cold War, and considering the absence of any use of such a weapon since 1945 at Nagasaki, there is a false sense of security, even as anxieties rise to fever pitch when contemplating the prospect of Iran armed with nuclear weapons. Indeed, the evident present priority of nuclear weapons states is to invest heavily in the modernization and further development of their existing arsenal of nuclear weapons, as well in the pseudo-stability of the nonproliferation regime.


And thus, even more so than in 1985, it would seem that it will be up to civil society activism to create the kind of climate of opinion that will force the hand of governmental actors. One step in this direction is to remind the people of the world that from the perspective of international law, nuclear weapons are unlawful, making their threat or use, crimes of utmost magnitude. In this regard, the material gathered in this volume is an invaluable resource for citizen activism on the basis of expecting governments in the 21st century to pursue security within the framework of the global rule of law. The clarity and authoritativeness of the conclusions of the London Tribunal are reinforced by the Advisory Opinion of the International Court of Justice rendered in 1996, and especially by the historic dissent of Judge Christopher Weeramantry that is also included in this volume.


In 1986 there were some 70,000 nuclear weapons in the world. Since then, the number has fallen to approximately 16,000. It is a dramatic quantitative drop, but remains far from the only safe number, which is zero. Over 90 percent of the weapons are in the arsenals of the US and Russia, and their negotiations for further reductions have stalled while they engage in military posturing, including nuclear posturing over the conflict in Ukraine. The US and Russia still maintain some 1,800 nuclear weapons between them on hair-trigger alert, ready to be fired within moments of an order to do so. Neither country has a commitment to No First Use of its nuclear arsenal, leaving open the threat of a preemptive attack, or other initiating use of the sort sometimes suggested as the best means to destroy Iran’s underground nuclear facilities.


The United States unilaterally withdrew from the Anti-Ballistic Missile Treaty in 2002 under Bush II, a treaty that was designed to limit the number of missile defense deployments in order to discourage defensive-offensive escalation cycles. This US withdrawal from the treaty coupled with the subsequent deployment of missile defense installations near the Russian borders has generated Russian anxiety about a possible US first strike, which increases tensions between the two countries and makes more nervous the fingers on the nuclear buttons.


In addition to the US and Russia, seven other countries possess nuclear weapons: the UK, France, China, Israel, India, Pakistan and North Korea. All of them have joined the US and Russia in modernizing their nuclear arsenals. Each of these arsenals is a source of nuclear danger, as are those of the US and Russia. Atmospheric scientists found through modelling studies that a relatively small nuclear exchange between India and Pakistan using 50 Hiroshima-size nuclear weapons each on the other side’s cities would put enough soot into the upper stratosphere to block warming sunlight from reaching the Earth, reduce temperatures on the planet to the lowest levels in 1,000 years, shorten growing seasons, cause crop failures and result in nuclear famine that could take two billion lives of the most vulnerable people on the planet. A larger exchange of nuclear weapons between the US and Russia could send the world tumbling into a new ice age, destroy civilization and annihilate the human species and most complex forms of life on the planet.


Article VI of the 1970 Nuclear Non-Proliferation Treaty obligates the parties to the NPT to negotiate in good faith on effective measures for a cessation of the nuclear arms race and an early date and for nuclear disarmament. These negotiations have never taken place, despite the unanimous legal support of the Article VI obligations in the 1996 ICJ Advisory Opinion: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”


In 2014, one of the smallest countries on the planet, the Republic of the Marshall Islands (RMI), took a bold action to enforce the Article VI obligations and the customary international law obligations that derive from them.   The RMI brought lawsuits against the nine nuclear-armed countries in the ICJ, seeking declaratory judgments that they are in breach of their nuclear disarmament obligations and injunctive relief ordering them to commence the required negotiations within one year.   Because only three of the nine nuclear-armed countries accept the compulsory jurisdiction of the ICJ, only the cases against the UK, Pakistan and India are currently going forward at the ICJ. The other six countries would have had to affirmatively accept the jurisdiction of the ICJ to have their cases go forward and none have chosen to do so.


The Marshall Islands also brought a separate lawsuit against the US in US federal court, due to the pivotal position of the US in terms of its leadership on nuclear issues. That case was dismissed by the lower court and is currently being appealed in the Ninth Circuit Court of Appeals. The cases are drawing interest throughout the world and currently over ninety civil society organizations, including the World Council of Churches, Greenpeace International and the Nobel Women’s Initiative, have joined a consortium headed by the Nuclear Age Peace Foundation in support of the RMI’s Nuclear Zero lawsuits (see www.nuclearzero.org).


The Marshall Islands acts with great moral authority, as their territory was used as a site of US nuclear testing in the early years of the Nuclear Age. The US conducted 67 nuclear tests in the RMI between 1946 and 1958, with the equivalent explosive power of having tested 1.6 nuclear Hiroshima bombs daily for 12 years. The Marshall Islanders suffered cancers, leukemia, stillbirths, birth defects and other radiation-induced illnesses. Some of their islands still remain uninhabitable, and they have never been adequately compensated for their pain, suffering, premature deaths and the loss of their lands.


In addition to the Nuclear Zero lawsuits by the Marshall Islands, one other positive initiative in relation to nuclear weapons is the series of inter-governmental conferences on the humanitarian impacts of nuclear weapons that have taken place in recent years in Oslo, Nayarit (Mexico), and Vienna. At the Vienna conference in December 2014, the Austrian government made an Austrian Pledge to work to close the legal gap to achieve the prohibition and elimination of nuclear weapons. Since then, over 100 other states have joined Austria in taking this pledge, now known as the Humanitarian Pledge. The hope is that one or more of these countries will convene a meeting of states to initiate a Nuclear Ban Treaty, similar to the Ottawa Conference that was convened to create a Landmine Ban Treaty. This can be done with or without the initial participation of the nuclear-armed countries.


This year (2015) marks the 70th anniversaries of the bombings of Hiroshima and Nagasaki. The survivors of those bombings, the hibakusha, have been outspoken in their calls to abolish nuclear weapons so that their past does not become someone else’s future. Every year, every day, that this advice is not heeded, increases the danger to the human future. This is a legal issue, as this book makes clear, but it is also a moral issue, a security issue and, ultimately, a spiritual issue. Humankind must step back from the nuclear abyss now, before it is too late.









































































The Geopolitical Right of Exception at the United Nations

13 Apr


The notorious, yet influential, German jurist, Carl Schmitt famously insisted that ‘a right of exception’ was the core reality of national sovereignty. By this he meant that internal law could be put aside by ‘the sovereign,’ inhering as the crux of the relationship between state and society. In this regard international law has no overriding claim of authority with respect to sovereign states, at least from the perspective of statist jurisprudence. This discretion to ignore or violate law is distinct from submission to law as a realistic adaptation by weak states to political realities or compliance undertaken voluntarily for pragmatic reasons of convenience and mutual benefit.


When the UN was established, it was configured, to appeal both to realist minds who were eager to show that they had learned the lesson of Munich and to those architects of international cooperation that did not want the folly of the League of Nations, seen as a politically irrelevant sanctuary for utopians and dreamers to be repeated in this newly created organization. To achieve these ends the UN Charter vested only the UN Security Council with the power of decision (as distinct from recommendations), and limited its membership originally to nine states of which the five designated winners of World War II were given both permanent membership, and more importantly, a right of veto. In effect, the right of veto was a constitutional right of exception embedded in the UN Charter. It formulated the master procedural rule of the Charter as one that allowed permanent members of the Security Council to block any decision that was perceived to be sufficiently against their national interests or those of its friends. Just as Woodrow Wilson falsely misled the world with his pledge after World War I of ‘making the world safe for democracy’ the UN was more effectively manipulated into the actuality of ‘making the world safe for geopolitics.’


In effect, the UN was set up on the basis that it would never be strong enough to challenge these five major states, and that its effectiveness would rest on two possibilities: sustaining the voluntary cooperation that had worked successfully during World War II to thwart European fascism and Japanese imperialism or cooperating on issues of secondary concern in the peace and security area on which the permanent members could agree and persuade enough non-permanent term members to lend support. As was discovered several decades ago, these permanent members could only agree on what to do in the Security Council on the rarest of occasions, and that decisions relating to secondary issues, although often useful, left the really dangerous conflicts beyond the reach of the UN. The UN also committed itself to respect territorial sovereignty of its members, and by virtue of Article 2(7) of the Charter, placed all forms of civil strife beyond its writ unless the Security Council agreed that there were present substantial threats to international peace and security.


This constitutional right of exception to some extent contradicts the basic imperative of the Organization “to save succeeding generations from the scourge of war” that is set forth in the Preamble to the Charter. To the extent that major wars have been avoided during the lifetime of the UN it is not due to the efforts of the Organization. It is rather a consequence of deterrence, and geopolitical self-restraint and prudence, which were greatly encouraged by the awareness that any war fought with nuclear weapons would be a catastrophe regardless of which side prevailed. Major wars were prevented by a reliance on traditional notions of balance, containment, and countervailing power fine tuned for the realities of the nuclear age. These were realist instruments of statecraft associated with the European state system as adapted to the distinctive contemporary challenges. In the over 400 pages of his 2014 book, World Order, Henry Kissinger, the realist par excellence of this era, hardly mentions the UN, and accords it no significant role in shaping or even misshaping the ‘world order’ in the 21st century. The UN is simply seen as a diplomatic sideshow. He sees the present world order need to be primarily concerned with incorporating the non-Western major states, especially China, in an enlarged conception of a state system that is based on European ideas. For this process of incorporation to occur smoothly it will be essential that Westphalian logic of statism be newly perceived as reflecting the values and worldview of these diverse civilizations, and no longer be understood as an integral aspect of the Western world domination project.


Although the UN is a disappointment when it comes to ‘war prevention’ or the encouragement of a global rule of law, it has managed to achieve universality of membership. Unlike the League that failed to induce the United States to join and lost along the way several important members, the UN has neither expelled countries from its ranks nor have states withdrawn. The Organization has proved sufficiently useful as a site of diplomatic interaction and contestation that every government regardless of ideology or outlook finds it useful to participate in its activities. Even Israel that consistently complains loudly about the flawed and biased character of the UN, still tries with all its diplomatic ingenuity to influence its various activities in directions consistent with its foreign policy.


What has received too little attention so far is what I would call ‘the geopolitical right of exception’ that is quite distinct from the constitutional veto, but at least as pernicious from the perspective of enabling the UN to promote the human interest in its actions throughout the world. The geopolitical right of exception reflects the ability of one or more political actor in the world to promote or undermine policies that express its particular interest. In UN contexts the geopolitical right of exception allows a state to prevent the implementation of behavior that has been otherwise given formal approval. For instance, in the UN Human Rights Council there is no operative constitutional right of exception, and this allows certain steps to

be taken on the basis of majority approval. Yet when it comes to implementation or enforcement, acting behind the scenes, threatening funding cuts and actions for and against a high official, the political will of the Organization is effectively resisted and controlled. For instance, Israel despite ignoring strongly backed UN General Assembly resolutions dealing with such matters as refugees, Jerusalem, the separation wall, has been able to be defiant over the course of decades without experiencing any inter-governmental adverse consequences, and this is because it is protected by the United States exercise of its geopolitical right of exception on its behalf. The availability of such a geopolitical right is in direct proportion to the perceived hierarchy of hard and soft power in the world, which has meant that since World War II, the United States far more than any other political actor has enjoyed a geopolitical right of exception within the UN.


The existence of this geopolitical right of exception undermines the legitimacy and effectiveness of the UN. It is integral to regimes of double standards, and cuts directly against the grain of global justice that seeks to treat equals as equally as possible. It also implicitly endorses backroom strong arm tactics and procedural manipulation, as well as modifies and distorts the rights and duties of membership in the UN.


Overcoming the geopolitical right of exception would require its repudiation by the United States, in particular, through a recognition that its exercise is incompatible with the search for a peaceful, just, sustainable, and more participatory form of world order. Because it is often exercised invisibly, this geopolitical right is also a vehicle of influence relied upon by private sector corporate and financial interests that are contrary to the global public interest. At present, it seems hopelessly out of touch to expect any moves by the American and other powerful governments to forego the benefits of the geopolitical right of veto. Because its exercise is neither claimed nor acknowledged, there can be no accountability, thus operating in a manner that is contrary to the democratic spirit. The constitutional veto has the benefit of discourse and debate as various political actors try to offer convincing reasons for casting a veto to block a Security Council decision. For this very reason the geopolitical right of exception is often a more desirable option than the constitutional right if the policy or position being promoted is unpopular with public opinion and other governments. The U.S. Government struggles often behind the scenes at the UN to provide effective support for Israel in ways that get the job done without having to achieve such an unpopular result by a seemingly arbitrary reliance on its veto.


Unless a full-fledged world government were to be established, which seems slightly less likely than awarding the Nobel Peace Prize to Vladamir Putin, there is no prospect of any renunciation of the geopolitical right of exception at the UN in the foreseeable future. The best that can be hoped for is a recognition of its existence and role, some sort of greater self-restraint exhibited in its exercise, and critical commentary by those who conceive of their political identity as that of ‘citizen pilgrims.’

Opposing Impunity for Geopolitical Criminality

5 Apr



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

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


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


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


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

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


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


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


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


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


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


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

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


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

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


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





The Mistakes of the Global Imperial State and the Mistakes of Others  

29 Mar


It was pointed out to me that the oddities of reconciliation without truth that I encountered in the Philippines with respect to the persisting prominence of the Marcos family despite the widespread discrediting of his period of ruler ship (1965-1986) is not as strange as I made it appear. After all, Jeb Bush has recently announced his intention to seek the presidency of the United States in 2016, and George W. Bush despite his deplorable presidency, is regarded as a political asset, and is actively campaigning and raising funds on behalf of his younger brother. In the Philippines, unlike the United States, there was a political rupture brought about by the People Power Movement that drove the Marcos clan from power and led directly to Corey Aquino becoming president, widow of Benigno Aquino Jr., the slain Marcos opponent. Even now this populist triumph is celebrated as a day of national pride for the country, and Benigno ‘Noynoy’ Aquino III sits in the Malacañang Palace as the elected leader of the country. Yet the political realities in the Philippines, as with America, are more notable for their continuities with their discredited past than by changes that repudiate and overcome it.


Barack Obama was acting in an admittedly different political setting in the United States when he put aside well grounded allegations of criminality directed at the leadership during the Bush presidency, prudently contending that the country should look forward not backward when it comes to criminal accountability of its former political leaders. Of course, this is the opposite of what was done with surviving German and Japanese leaders after World War II at the widely heralded Nuremberg and Tokyo trials, nor can such prudence ever become the norm in the United States in relation to the crimes of ordinary people, even the laudable whistleblowing crimes of the sort attributed to Chelsea Manning, Julian Assange, and Edward Snowden. Such selective impunity seems to be the price that imperial democracies pay for avoiding civil strife at home, and preferable to the unity associated with authoritarian forms of governance.


For this reason alone, Obama’s morally regressive approach to accountability is politically understandable and prudent. America is polarized, and the most alienated and angry segment of the citizenry embraces the gun culture and likely remains ardently supportive of the sort of militarism and patriotic fervor that had been so strongly in evidence during the Bush presidency.


Thoughts along these lines led me a broader set of reflections. The mistakes that the Philippines makes, however horrifying from the perspectives of human rights, are at least largely confined to the territorial limits of the country and victimize its own citizenry. By way of comparison, the foreign policy mistakes that the United States mainly vicitimize others, although they often do at the same time impose heavy costs on the most marginal and vulnerable of Americans. As a society, many regret the impacts of the Vietnam War or the Iraq War on the serenity and self-esteem of American society, but as Americans we rarely, if ever, pause to lament the immense losses inflicted on societal experience of those living within such distant battlefields of geopolitical ambition. These victim societies are passive recipients of this destructive experience, rarely possessing the capability or even the political will to strike back. Such is the one-sidedness of imperial relationships.


An estimated 1.6 to 3.8 million Vietnamese died during the Vietnam War as compared to 58, 000 Americans, and similar casualty ratios are present in the Afghanistan and Iraq wars, without even considering the disruption and devastation experienced. In Iraq since 2003 it is estimated that between 600,000 and 1 million Iraqis were killed, and over 2 million were internally displaced and another 500,000 Iraqis became refugees as a result of the war, while the United States lost in the vicinity of 4,500 combat personnel. Battlefield statistics should not blind us to the absoluteness of each death from the perspective of loved ones, but they do reveal a central dimension of the distribution of the relative human costs of war as between an intervening government and the target society. This calculus of combat death does begin to tell the story of the devastation of a foreign society, or the residual dangers that can materialize in death and maiming injuries long after the guns are silent from lethal unexploded ordinance that litters the countryside for generations, soil contamination by Agent Orange, and warheads containing depleted uranium, as well as a legacy of trauma and many daily reminders of war memories in the shape of devastated landscapes and destroyed landmarks of cultural heritage.


From almost any ethical standpoint it would seem that some conception of international responsibility should restrain the use of force in situations other than those authorized by international law. But that’s not the way the world works. The mistakes and wrongdoing that takes place in a distant foreign war is rarely acknowledged, and never punished or restitution offered. Perversely, it is only the territorial leaders that are held to account (e.g. Saddam Hussein, Slobodan Milosevic, and Muammar Qaddafi). The United States Government, specifically the Pentagon, makes it a point to tell the world that it does not collect data on civilian casualties associated with its international military operations. In part, there is an attitude of denial, minimizing the ordeals inflicted on foreign countries, and in part there is the salve of an underlying official insistence that the U.S. makes every effort to avoid civilian casualties. In the context of drone warfare, Washington insists that there are very few civilian victims, as measured by the number of deaths, but never admits that a far larger number of civilians huddle in continuous acute fear that they may be targeted or unintentionally struck dead by an errant missile.


Given the statist and imperial structures of world order, it is not surprising that there is so little attention to such issues. The mistakes of an imperial global state have material reverberations far beyond their borders while the mistakes of normal state resound inwardly as in an echo chamber. The wrongs of those who act for the imperial global state are shielded from scrutiny by realistic notions of impunity, while the wrongs of those who act for a normal state are increasingly subject to international procedures of accountability. When this happened after World War II it was called ‘victors’ justice; when it happens now, especially with the one-eyed jurisprudence of ‘liberal legality’ it is explained by reference to prudence and realism, being practical, doing what it is possible, accepting limits, giving a fair trial to those who are accused, deterring some patterns of evil deeds.


This will not change unless either of two things come to pass: a global capability to interpret and implement international criminal law comes into being or the political consciousness of imperial global states is dramatically altered by the internalization of an ethos of responsibility toward foreign societies and their inhabitants. Any description of such advances in law and justice should make us aware of how utopian such expectations remain.


At present, there is only one global imperial state, the United States of America. Some suggest that China’s economic prowess creates a rival center of power and influence that should be acknowledged as a second global imperial state. This seems misleading. China may be more resilient, and is certainly less militarist in its conception of security and pursuit of its interests, but it is not global, nor does it fight wars distant from its homeland. Furthermore, Chinese language, currency, and culture do not enjoy the global reach of English, the U.S. dollar, and franchise capitalism. Undoubtedly, China is currently is arguably the most significant state in the world, but its reality is in keeping with core Westphalian ideas of territorial sovereignty, while the United States operates globally in all regions to solidify its status as the only global imperial state, indeed the first such state in the history of the world.

‘Lawfare’ and Liberation

23 Feb

Positive and Negative Forms of ‘Lawfare’


Issues of law and ‘lawfare’ are recurrent features of foreign policy debates in the United States. On the side, are efforts by peace activists and others to condition the behavior of all states, and especially the United States, by reference to authoritative limits on national discretion as encoded in the UN Charter, a binding treaty. In opposition to a law-oriented foreign policy for the United States are a variety of arguments that rely either directly or indirectly on a version of ‘American exceptionalism.’ Such arguments do not repudiate international law, but condition its applicability to American behavior and that of American allies, and insist on the implementation of international law in relation to the alleged unlawful conduct of adversaries (e.g. Russia involvement in eastern Ukraine)


On the other side of this discourse is the various forms of ‘lawfare’ as an instrumental use of law to achieve valued ends, positive or negative. In these roles international law can mobilize public opinion and government policy to support or oppose particular undertakings. In this limited sense it is appropriate to conceive of ‘lawfare’ as ‘soft power goepolitics’ or as a form of ‘asymmetric warfare’ waged by political actors deficient in hard power.


It was during the presidency of George W. Bush that the neocons decided that recourse to international law was a weapon of the weak that interfered with the grand strategy of the United States, especially in the Middle East. The terminology of lawfare was adopted by both advocates of reliance on international law as constraints on American (and Israeli) policy and by those who sought to denigrate invocations of international law as obstructive tactics that interfered with the protection of security in a post-9/11 world. In reaction to the Goldstone Report (2009) there was launched a notorious ‘Lawfare Project’ that viewed reliance on international law within the UN setting in a manner highly critical of Israel was a new form of ‘asymmetric warfare’ that needed to be countered to avoid the delegitimizing of Israel as a democratic sovereign state. This kind of interpretation dominated a conference at Columbia Law School, featuring the participation of the Dean, David Schizer, that denounced the Goldstone Report and human rights NGOs and was organized by a coalition of pro-Israeli organizations.


I regard lawfare as the use of the rules and procedures of law more neutrally, as instrumental uses of law to achieve or block policy outcomes. My focus is on international law, but the same dynamics apply to internal uses of law. The website, ‘LAWFARE,’ affiliated with the Washington think tank, The Brookings Institution, and bolstered by the active participation of some Harvard Law School conservative faculty, uses lawfare in this neutral, instrumental way, although its government oriented biases dominates its commentary.


There is a problematic side to international law that reflects its crafting and evolution over the centuries. International law definitely was developed to rationalize the interests and projects of the dominant political actors in the West. International law proved useful in giving a legal cover to colonial rule, unequal and imposed treaties, and to stabilize the expropriation of the natural resources of countries in the global South. At the same time, counter-hegemonic efforts were made to give international law quite different impacts, especially in Latin American settings. The effort was to put forward international law doctrines to strengthen the sovereign rights of weaker countries, especially in the context of economic relations.


Beyond the law on the books, there are the ambiguities created by state practice, especially with regard to peace and security, given the absence of any central governing authority or legislative institution on a global level to pronounce upon disputes about interpretation or to agree upon changes in governing rules. As a result, many ‘violations’ of international law serve as ‘precedents’ for the establishment of new norms; power generates law, and its interpretation, whether or not it serves the cause of justice. Further, with the veto in the UN Security Council giving the permanent members, and also indirectly their friends, a ‘legal’ right of exception with respect to compliance with international law. Such an interface between power and law offers an additional reason to be skeptical about any present claims of a global rule of law.

Against this background, I find it clarifying to distinguish between positive and negative uses of lawfare. I identify positive uses to be efforts to insist that international law be upheld to the extent that it serves values of peace, justice, and human dignity, and that its guidelines and conceptions of right, be generally treated as authoritative in diplomatic arenas concerned with the peaceful resolution of conflicts or initiatives designed to implement international criminal law, including making use of procedures to impose accountability on leaders of sovereign states. In these positive uses, there is an overall compatibility between lawfare and the pursuit of justice, although to express this conclusion inevitably reflects subjective perceptions and outlook. Other commentators on international law can and do have different views on such matters.


I identify negative uses of lawfare to be efforts to denigrate reliance on the procedures and norms of international law in seeking to pursue rights or hold individuals accountable for violations of international criminal law. The neocons were clear about their refusal to bind the pursuit of American foreign policy goals by shows of respect for international law. Their visions of American grand strategy regarded it as naïve and unhelpful to introduce international law dimensions into policy debates about the use of force. In this vein, thinking mainly about uses of force in defiance of the UN Charter and international law, several prominent neocons, including Douglas Feith and Paul Wolfowitz, showed their contempt of international law as nothing more than ‘a weapon of the weak’ that should not be allowed to alter the behavior of the strong, and in effect, justify the disregard of such legal objections to hegemonic policies as mere tactics of the outgunned side in an asymmetric war.


By way of illustration, the exclusion of international law from the Oslo Framework for resolving the Israel-Palestine conflict was clearly an effective instance of negative lawfare, denying for many years the Palestinians the benefit of claiming their rights by reference to international law. An example along the same lines were the punitive responses made by Israel and the United States to initiatives of the Palestinian Authority to seek statehood within the UN System and then on that basis to become a party to international treaties, including most controversially the Rome Treaty, which facilitates access to the International Criminal Court. The essence of this important example of negative lawfare centers on blocking, retaliating against, and denigrating attempts by political actors to make use of available procedures and legal norms to uphold their rights against those who rely on hard power to sustain oppressive structures. .


Lawfare can operate negatively or positively on any level of social interaction. When activists seek to encourage divestment of holding in companies doing business associated with seeking commercial gain from transactions or projects with unlawful Israeli settlements this is positive lawfare, with unlawfulness serving as an indicator of illegitimate behavior. When such initiatives are blocked by a legal technicality to frustrate efforts to encourage or demand divestment, invoking law becomes negative lawfare. This happened recently at the University of California at Davis. Interestingly, as in this divestment context, what is being called ‘law’ are organizational rules operative with a university setting, and not associated with legal rules generated by governmental institutions.


There is no way to simplify or generalize the role of law in human affairs. Its proper assessment depends on taking into account the structural circumstances (for instance, law as administered by Israel as the occupying power in the West Bank imposes unjust and coercive policies and practices) and on context (for instance, Palestinian reliance on their claims of right based on international law with respect to the right of return of Palestinian refugees, Israeli settlements, status of Jerusalem, control of water). Legal discourse disputes these rights in a variety of ways. Palestinians invoke the authority of the UN General Assembly to vindicate their claims, while Israel claims the authority to put forward its own ideas about insisting that occupied Palestine is a territory of ‘disputed sovereignty’ and as such outside the domain of international humanitarian law.


As long as complex societies exist and actors have their own agendas and priorities, rules and procedures will be manipulated for the benefit of one or

another actor. This inheres in social process. What has happened recently calls for further reflection. Law has been used as an instrument to seek justice and law has been used as a means to gain and secure positions of strategic advantage. ‘Lawfare’ merely makes this tug of war between those that want to invoke international law and those that believes it unduly burdens statecraft

a more systematic reality.










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