Archive | November, 2011

Kuala Lumpur War Crimes Tribunal: Bush and Blair Guilty

29 Nov

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



Criminal Justice in Kuala Lumpur


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


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


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


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


The Anti-War Campaign of Mahathir Mohamed


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


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

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

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


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


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

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

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

reflect both the populist foundations of a jurisprudence of conscience.


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



Universal Jurisdiction


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



The Move to Civil Society Tribunals


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


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


Justifying Tribunals of Popular Justice and Public Conscience


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


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


The Legalism of the KLWCT


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


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


Tribunals of ‘Conscience’ or of ‘Law’?


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

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



Toward A Jurisprudence of Conscience

26 Nov

Ever since German and Japanese surviving leaders were prosecuted after World War II at Nuremberg and Tokyo, there has been a wide abyss separating the drive for criminal accountability on the part of those who commit crimes against peace, crimes against humanity, war crimes from the realities of world politics. The law is supposed to push toward consistency of application, with the greatest importance attached to holding accountable those with the greatest power and wealth. The realities of world politics move in the opposite direction, exempting from criminal accountability those political actors that play dominant roles. In a sense the pattern was encoded in the seminal undertakings at Nuremberg and Tokyo that assumed the partially discrediting form of ‘victors’ justice.’ Surely the indiscriminate bombings of German and Japanese cities by Allied bomber fleets and the dropping of atomic bombs on Hiroshima and Nagasaki were ‘crimes’ that should have been investigated and punished if the tribunals had been fully ‘legal’ in their operations. It was the case, especially in Tokyo, that the tribunal allowed defendants to be represented by competent lawyers and that the judges assessed fairly the evidence alleging criminality, producing dissenting opinions in the Japanese proceedings and there was an acquittal at Nuremberg. In effect, there was a measure of procedural fairness in these trials. Without doubt those who were accused of crimes did engage in activity that was legally permissible and important for the future of world order to criminalize through findings of guilt and impositions of punishment, but this outcome was flawed to the extent that victors were not subject to comparable standards of accountability.

There was a second message arising from these trials: that winning side by conducting trials of this kind takes advantage of the opportunity to reinforce claims as to the justice of historical verdicts by pronouncing on the criminality of losers while overlooking the criminality of victors.  There was also a third message that tries to overcome the flaw of double standards. It has been called ‘the Nuremberg promise,’ and involves a commitment by the victors in the future to abide by the norms and procedures used to punish the German and Japanese surviving military and political leaders. In effect, to correct this flaw associated with victors’ justice by making criminal accountability in the future a matter of law applicable to all rather than a consequence of the outcome of wars or a reflection of geopolitical hierarchy.

The Chief Prosecutor at Nuremberg, Justice Robert Jackson (excused temporarily from serving as a member of the U.S. Supreme Court), gave this promise an enduring relevance in his official statement to the court: “If certain acts and violations of treaties are crimes, they are crimes whether the United  States does them or whether Germany does them. We are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.” These words are repeatedly quoted by peace activists, yet ignored by political leaders who took no notice of either the original flaw at Nuremberg or the obligation to remove it. Since 1945 crimes by the victors in conflict have continued to be overlooked by international criminal law, while prosecutions reflecting geopolitical leverage have kept happening without any concerted intergovernmental or UN effort to correct the imbalance. Since the end of the Cold War implementation of criminal responsibility has been increasingly imposed on losers in world politics, including such leaders as Slobadan Milosevic, Saddam Hussein, and Muammar Qaddafi each of whom were deposed by Western military force, and either summarily executed or prosecuted.

This dual pattern of criminal accountability that cannot be fully reconciled with law or legitimacy has given rise to several reformist efforts. Civil society and some governments have favored a less imperfect legalization of criminal accountability, and raised liberal hopes by unexpectedly achieving the establishment of the International Criminal Court in 2002 through the extraordinary efforts of a global coalition of NGOs and the commitment of a group of middle powers. Fearful of losing their impunity geopolitical heavyweights such as the United States, China, India, and Russia have refused to sign on to the ICC. Yet this and other formal initiatives have not yet seriously impinged on the hierarchal realities of world politics, which continue to exhibit an embrace of the Melian ethos when it comes to criminal accountability: “the strong do what they will, the weak do what they must.” Such an ethos marked, for Thucydides, unmistakeable evidence of Athenian decline, but for contemporary realists a different reading has been prevalent, underpinning political realism, contending that hard power calls the shots in history, and the losers have no choice but to cope as best they can. Double standards persist: the evildoers in Africa are targets of prosecutors, but those in the West that wage aggressive war or mandate torture as national policies continue to enjoy impunity as far as formal legal proceedings are concerned.

The existence of double standards is part of the deep structure of world politics. It was even given constitutional status by being written into the Charter of the United Nations that permits the five permanent members of the UN Security Council, that is the winners in 1945, to exercise a veto over any decision affecting the peace and security of the world, thereby exempting the world’s most dangerous states, being the most militarily powerful and expansionist, from any obligation to uphold international law. Such a veto power, while sounding the death knell for the UN in its core role of war prevention based on law rather than geopolitics, is probably responsible for keeping the Organization together through times of intense geopolitical conflict. Without the veto, undoubtedly the West would

have managed to push the Soviet Union and China out the door during the Cold War years, and the UN would have disintegrated in the manner of the League of Nations, which after the end of World War I converted Woodrow Wilson’s dream into a nightmare.  Beyond this, even seen through a geopolitical optic, the anachronistic character of the West-centric Security Council is a remnant of the colonial era. 2011 is not 1945, but the difficulty of achieving constitutional reform means that India, Brazil, Turkey, Indonesia, and South Africa seem destined to remain permanent ladies in waiting as the UN goes about its serious male business. What this means for UN authority, including its sponsorship of the politics of individual criminal accountability, is that all that is ‘legal’ is not necessarily ‘legitimate.’

My argument seeks to make two main points: first, double standards pervade the application of international criminal law eroding its authority and legitimacy; and secondly, those geopolitical hierarchies that are embedded in the UN framework lose their authority and legitimacy by not adapting to changing times and conditions, especially the collapse of the colonial order and the rise of non-Western centers of soft and hard power.

There are different kinds of efforts to close this gap between the legal and the legitimate in relation to the criminality of political leaders and military commanders. One move is at the level of the sovereign state, which is to encourage the domestic criminal law to extend its reach to cover international crimes. Such authority is known as Universal Jurisdiction (UJ), a hallowed effort by states to overcome the enforcement weaknesses of international law, initially developed to deal with the crime of piracy, interpreted as a crime against the whole world. Many liberal democracies in particular have regarded themselves as agents of the international legal order, endowing their judicial system with the authority to apprehend and prosecute those viewed as criminally responsible for crimes of state. The legislating of UJ represented a strong tendency during the latter half of the twentieth century in the liberal democracies, especially in Western Europe. This development reached public awareness in relation to the dramatic 1998 detention in Britain of Augusto Pinochet, former ruler of Chile, in response to an extradition request from Spain where criminal charges had been judicially approved. The ambit of UJ is wider than its formal implementation as its mere threat is intimidating, leading those prominent individuals who might be detained and charged to avoid visits to countries where such claims might be plausibly made. As might be expected, UJ gave rise to a vigorous geopolitical campaign of pushback, especially by the governments of the United States and Israel reacted with most fear to this prospect of criminal apprehension by foreign national courts. As a result of intense pressures, several of the European UJ states have rolled back their legislation so as to calm the worries of travelers with tainted records of public service!

There is another approach to spreading the net of criminal accountability that has been taken, remains controversial, and yet seems responsive to the current global atmosphere of populist discontent. It involves claims by civil society, by the peoples of the world, to establish institutions and procedures designed to close the gap between law and legitimacy in relation to the application of international criminal law. Such initiatives are appropriately traced back to the 1966-67 establishment of the Bertrand Russell International Criminal Tribunal that examined charges of aggression and war crimes associated with the American role in the Vietnam War. The charges were weighed by a distinguished jury composed of moral and cultural authority figures chaired by Jean-Paul Sartre. The Russell Tribunal was derided at the time as a ‘kangeroo court’ or a ‘circus’ because its conclusions could be accurately anticipated in advance, its authority was self-proclaimed and without governmental approval, it had no control over those accused, and its capabilities fell far short of enforcement. What was overlooked in such criticism was the degree to which this dismissal of the Russell experiment reflected the monopolistic and self-serving claims of the state and state system to control the administration of law, ignoring the contrary claims of society to have law administered fairly in accord with justice, at least symbolically. Also ignored by critics was the fact that only such initiatives could overcome the blackout of truth achieved by the geopolitics of impunity. The Russell Tribunal may not have been ‘legal’ as understood from conventional governmental perspectives, but it was ‘legitimate’ in responding to double standards, by calling attention to massive crimes and dangerous criminals who otherwise enjoy a free pass, and by providing a reliable and comprehensive narrative account of criminal patterns of wrongdoing that destroy or disrupt the lives of entire societies and millions of people. As it happens, these societal initiatives require a great effort, and only occur where the criminality seems severe and extreme, and where a geopolitical mobilization precludes inquiry by established institutions of criminal law.

It is against this background that we understand a steady stream of initiatives that build upon the Russell experience. Starting in 1979, the Basso Foundation in Rome sponsored a series of such proceedings under the rubric of the Permanent Peoples Tribunal that explored a wide variety of unattended criminal wrongs, including dispossession of indigenous peoples, the Marcos dictatorship, Armenian massacres, self-determination claims of oppressed peoples.  In 2005 the Istanbul World Tribunal on Iraq inquired into the claims of aggression, crimes against humanity, and war crimes associated with the U.S./UK invasion and occupation of Iraq, commencing in 2003, causing as many as one million Iraqis to lose their lives, and several million to be permanently displaced from home and country. In the last several weeks the Russell Tribunal on Palestine, a direct institutional descendant of the original undertaking, held a session in South Africa to investigate charges of apartheid, as a crime against humanity, being made against Israel. In a few days, the Kuala Lumpur War Crimes Tribunal will launch an inquiry into charges of criminality made against George W. Bush and Tony Blair for their roles in planning, initiating, and prosecuting the Iraq War, to be followed a year later by a subsequent inquiry into torture charges made against Dick Cheney, Donald Rumsfeld, and Alberto Gonzales. I intend to write subsequently about each of these proceedings.

Without doubt such societal efforts to bring at large war criminals to symbolic justice should become a feature of the growing demand around the world for real democracy sustained by a rule of law that does not exempt from responsibility the rich and powerful whether they are acting internally or internationally.

Reflections on Two Occupations

23 Nov


Not long ago I took part in a workshop in London that was jointly organized by young Palestinians and Israeli, and discussed prospects for a just peace, emphasizing the imperative of ending ‘the occupation.’ At about the same time I experienced the radiant energy of the young occupiers at Wall Street and near St Paul’s Cathedral. Several months ago I was in Cairo not long after Mubarak left power, and visited Tahrir Square still alive with its memories of occupation by the protesters. Occupation became a word of many resonances, both favorable and heinous, and this poem tries to acknowledge this interplay of feelings of solidarity and alienation. Perhaps, it is too personal to be sharable.




Reflections on Two Occupations


To live             to love

                                                is to occupy           

                                                to be



By whom             with whom           


                        Tahrir Square

                        Wall Street

                        St Paul’s Cathedral

                                                            the world


To hope to dream

                                    to act





By whom            for whom

To fear to hide

                        to resist

                                                is to be


            from within

            from without


It was once your land

I entered your land

                        picking olives

                                                settling there

Buying occupying


Above all remembering

                                                another distant tale

Filled with tears and dying


                                                                        my land

                                                                                    my law                       

                                                            my birthright


And now ours to keep:

                        history forgives

                                                what is stolen if time passes quietly



Long ago now

I did ask you to leave

            in a polite voice

                        then a raised voice

                                    then a scream

                                                            then no voice at all

                                    to go             get out


All I wanted then was for birds

                                    to sing some old songs

All I wanted was for flowers

                                                to bend toward home


And now I declare

            to myself to you

                                    to the world

                                                this occupation will end:


The graves

                        already full


            as dawn


                                                            the Jerusalem sky in two


What is occupied with love lives

What is occupied with force kills

                                                            before it dies and lives again           



I never wanted this earth scorched

                                                            moist with

                                                                        native blood


amid the ruins

                        I fight              resist    pray           




Language, Law, and Truth

21 Nov


“The language marches in step with the executioners.

  Therefore we must get a new language.” 

                       Tomas Tranströmer, Night Duty


            Marjorie Cohn, a respected progressive commentator on the use and abuse of international law during the past decade, notes with justifiable horror the willingness of Republican candidates for president to endorse torture as an acceptable instrument of counterterrorism. [Cohn, “US Presidential Elections: GOP Candidates Advocate Torture,” Nov. 19, 2011] Rick Perry, one leading Republican presidential contender who is now governor of Texas, put his support for torture in typically crude language: “This is war. That’s what happens in war.” The most direct endorsement was made by Herb Cain, a businessman who repeatedly demonstrates his scant knowledge of foreign policy issues, said with sprightly ignorance of waterboarding during a recent TV debate among the Republican candidates, “I don’t see it as torture. I see it as enhanced interrogation technique.” Not to be left behind in this rather alarming Republican horserace for the presidential nomination, Michelle Bachmann, attempted to give a pragmatic twist to the discussion by claiming (contrary to the evidence that torture often turns up information that is misleading and generally less useful than permissible forms of interrogation) that waterboarding is an effective means to gain information, and that as a patriot she would not hesitate to use such a technique to protect the country against its enemies. The lead candidate in opposition to Barrack Obama at this time in the November 2012 presidential election, Mitt Romney, also let it be slyly known that he shares the view that waterboarding is not torture: “Enhanced interrogation techniques have to be used. Not torture, but enhanced interrogation, yes.”

            Here we have direct examples of the dirty language games being played at great costs to the moral standing of the nation, its people, and its government. Torture is not torture if it is not called torture! Of course, in the background standing tall are George W. Bush, Dick Cheney, Donald Rumsfeld, John Yoo, and others who during the Bush presidency invented this trick designed to make torturers and their minders sleep well at night. For these unindicted war criminals, it was enough to give an unacceptably narrow definition of the legal crime of ‘torture,’ which allowed them to retain their innocence and at the same time brag about using waterboarding to save American lives, sometimes done over 100 times to a particular detainee. This Republican revival of a pro-torture argument is particularly discouraging because it seems to rest on an extremely distressing assessment of American public opinion as favorably impressed by the brutality and lawlessness of a continuing reliance on waterboarding and other forms of ‘enhance interrogation.’ If this assessment is correct it confirms the impression widespread in the world that not only has America lost its way, but has also mortgaged its soul!

            As Professor Cohn tells us, President Obama reaffirmed that waterboarding is torture, an opinion proclaimed ever since his presidential campaign in 2008, and bolstered by an insistence that since in office he has  unconditionally repudiated torture as conventionally understood. His language is instructive, but in its own way misleading: “Waterboarding is torture. Anybody that has actually read about it and understands the practice of waterboarding would say that it is torture—and that’s not something we do, period.” This renewed repudiation of waterboarding is welcome, as is the insistence on not distorting the language so as to allow those acting on behalf of the government to abuse physically and mentally persons held in detention, and even to do so with a relatively good conscience.

            But if waterboarding is torture, and Mr. Obama is true to his wider pledge to implement the rule of law during his presidency, why does he not allow investigations of the criminality on the part of his predecessors in office who acknowledged (‘confessed’) to the crime? In effect, a serious crime was repeatedly committed by the highest elected officials, damaging badly the reputation of the United States, and yet the political will to uphold the law is evidently not a feature of the Obama presidency, which early on asserted that it wanted to look forward not backward when it came to implementing law. To put it mildly, this is a peculiar ‘enforcement’ strategy that seems indistinguishable from non-enforcement! Imagine if a similar impunity was granted to common criminals for past murders and rapes! Imagine the Republican outrage! What is worse, as the comments of Republican candidates vividly reveals, this spirit of non-implementation keeps the virus of torture alive in the American body politic.

            In the good old days of the Cold War there also occurred a distressing reliance on torture and assassination, often entrusted to the CIA section on covert operations carried out overseas, well-documented and analyzed by Alfred McCoy in his book Question of Torture: CIA Interrogations, from the Cold War to the War on Terror (2006), but this behavior was kept secret, partly because it was known to be indecent and unlawful. Such a use of secrecy does not immunize the practice of torture from legal accountability had the political will and capability existed, which it did not, but it at least manifests a concern that such behavior if revealed would generate opposition and moral disgust. In the post-9/11 world, at least here in the United States, that concern and disgust while still present among urban liberals are much attenuated, which means the barriers to secret wrongdoing are likely to be virtually non-existent. And if one of these Republican torture advocates should be elected next November then it would seem likely to initiate an open season for a new round of torture undertaken beneath the feel good banner of ‘enhanced interrogation.’ At least, we can take some tiny comfort from the fact that even torture advocates still rely on this canopy of language to disguise the nature of their behavior. 

            Of course, it is easy for me to pontificate self-righteously when not faced with the dilemmas of governance. It was undoubtedly true that any attempt to impose standards of accountability on the Bush presidency would have led to an acrimonious national debate, or worse, and produced a deepening of the polarities already hamstringing the formation of public policy in the country. Yet for those who seek justice and truth in politics, such a law-oriented course of action would have been exhibited a genuine commitment to American values, and have gone a long way to demonstrate that the discontinuities between the Bush and Obama presidencies were more than halfway gestures.If a law-based democracy is ever to approximate reality, we the citizens must insist that the political risks of truth-telling be taken, that torture in our name, whether present, past, or future is totally unacceptable and will be punished no matter who turns out to be the culprit.                        

            In his speech accepting the Nobel Peace Prize in 2009 President Obama said strikingly: “Those who claim to respect international law cannot avert their eyes when those laws are flouted..The same principle applies to those who violate international law by brutalizing their own people.” But is not this precisely what Obama has been doing by averting his eyes from the crime of torture committed by his predecessors in office? This evasion of the solemn responsibility to implement international criminal law as it pertains to torture, even to investigate allegations of criminality, is accentuated by taking other backward steps suggesting ambivalence at best. Obama refused to authorize the formation a truth and reconciliation commission with a mandate to investigate past reliance on torture, which might have produced clarity, if not closure, on the issue.  As well, the Justice Department has shockingly intervened in judicial settings to prevent civil law suits by former Guantanamo detainees seeking damages from the abuse they endured on the flimsy, and morally unacceptable, grounds that as aliens they lacked clear constitutional rights, as aliens, not to be tortured. [For detailed indictment of the Obama approach to torture see Eric Lewis, “Torture’s Future,” NY Times, Nov. 21, 2011]

            In the same Nobel speech Obama explained his outlook on the relevance of law to warfare: “Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct. And even as we confront a vicious adversary that abides by no rules, I believe that the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength. That is why I prohibited torture. That is why I ordered the prison at Guantanamo Bay closed. And that is why I have reaffirmed America’s commitment to abide by the Geneva Conventions. We lose ourselves when we compromise the very ideals that we fight to defend. And we honor those ideals by upholding them not just when it is easy, but when it is hard.” Again, performance trumps rhetoric, and from this perspective Obama seems both hypocritical and cynical, not just in relation to torture, but more generally with respect to international law. 

            For the Obama presidency, the debate about the escalated use of attack drones to target suspected terrorists wherever they might be located in the world occupies a comparable space to that of torture during the Bush presidency. And what is revealing, is the similarity of manner by which the Obama people bring law to bear on this controversial use of force that has such broad implications for the future of warfare. More than their Bush counterparts, such luminaries as Harold Koh, Legal Advisor to the Secretary of State, and John Brennan, the top counterterrorist advisor to the president, emphasize the degree to which adherence to the rule of law in the conduct of American security policy is a priority that guides behavior because it reflects American values, and also works out better in the combat zones because it builds unity at home, strengthens cooperation abroad, and conveys the differences between ‘us’ (law-abiding on principled grounds) and ‘them’ (engaging in deliberate violence against civilians).


            But then this major premise of adherence to law is immediately contradicted by the minor premise: doing what is militarily desirable and possible to counter alleged terrorist threats associated with al Qaeda and the 9/11 experience, and this means targeted assassinations in foreign countries far from the hot battlefield, understating of civilian casualties, ignoring the frightening wider effects of drone attacks on the overall sense of societal security in a target zone, broadly defining who constitutes a threat, and a refusal to lift the veil of secrecy from drone operations to determine whether intelligence was reliable as to target and supposed threat. It is lethal behavior by the United States carried on in foreign countries, with ‘consent’ publicly denied or absent, generally undertaken by a CIA civilian operative sitting in an air conditioned office, converting ‘war’ into a risk-free process that for the drone-minder resembles a video game, and since there is no public accountability, there is also no burden of responsibility for negligence or even malice. Does not this represent an extreme stretching of the international law with respect to the right of self-defense? It also is a blatant denial of  ‘the right to life,’ an imposition of extra-judicial capital punishment, and as such, an affront to legal standards associated with international human rights.  As well it entails an utter lack of respect for the sovereign rights of other states, and in its totality, a contorted ‘legality’ put forth by government legal experts on behalf of drone warfare in a manner unnervingly similar to what the Bush legal operatives sought to do with regard to torture.

            It may be time to acknowledge that governmental lawlessness in foreign policy has become a bipartisan reality for the United States Government, and that the face in the White House or the political party in control, while not yet irrelevant, is a matter of secondary interest, at least to those who are drone targets or torture victims. 

            It may be past time to say that such a stretching of the language of law is an insult to our intelligence and a subversion of our morality as a people and nation. When ‘law’ becomes a synonym for ‘crime’ we know that power corrupts all the way to the top of the governmental pyramid!

On (Im)Balance and Credibility in America: Israel/Palestine

18 Nov


            I could not begin to count the number of times friends, and adversaries, have give me the following general line of advice: your views on Israel/Palestine would gain a much wider hearing if they showed more sympathy for Israel’s position and concerns, that is, if they were more ‘balanced.’ Especially on this set of issues, I have always found such advice wildly off the mark for two main reasons. 

            First, if the concern is balance, I am not the place to begin, but the absurd pro-Israeli balance that pervades the response to the conflict in Washington, in the Congress, at the White House and State Department, among Beltway think tanks, as well as in the mainstream media. There is a serious problem of balance, or I would say distortion, that undermines diplomatic credibility. Such a toxic imbalance here in the United States makes the American claim to mediate the conflict and provide neutral auspices futile, if not ridiculous, or at best a reliance on geopolitical ‘justice’ in place of legal justice (based on rights). When the Goldstone Report is rejected before it has been read or the World Court’s near unanimous Advisory Opinion (14-1) condemning as unlawful the separation wall constructed in occupied Palestinian territory is repudiated without offering a serious critical argument, it is clear that bias controls reason, making the resulting imbalance a willing partner in crime. 

            But what of the imbalance that sides with the evidence, with the law, with the ‘facts on the ground’ to arrive at its findings and conclusions? What of the continuous expansion of settlements in the West Bank and East Jerusalem, the denial of Palestinian refugee rights of return, of the apartheid legal structure of occupation, of discrimination against the Palestinian minority living as Israeli citizens, of the appropriation of scarce Palestinian water reserves, of the abuse of prisoners and children, of the long siege imposed on the people of Gaza as a sustained collective punishment? What of the continuous defiance of international law by Israeli reliance on excessive and disproportionate uses of force in the name of security? In light of this record, is not such imbalance, particularly in the inflamed American atmosphere, the only possible way for truth to speak to power?  Or stated more strongly, is not a circumstance of imbalance written into the fabric of the conflict, and exhibited in the daily suffering and thralldom of the Palestinian people whether living under occupation, in refugee camps in neighboring countries, in exile, and as a subjugated minority?


           Finally, the idea of balance and symmetry should also ‘see’ the structures of life that describe the contrasting conditions of the two peoples: Israelis living in conditions of near normalcy, Palestinians enduring for an incredible period that stretches over six decades a variety of daily hardships and abuses that is cumulatively experiences as acute human insecurity. To be structurally blindfolded and blind is to adopt a common, yet deforming, appearance of ‘balance’ that perpetuates an unjust ‘imbalance’ between oppressor and oppressed.

             In relation to self-determination for Palestinians and Israelis I favor a stance of ‘constructive imbalance,’ which I believe is the only truthful manner of depicting this reality. Truth and accuracy is my litmus test of objectivity, and as such, knowingly defies that sinister god who encourages the substitution of balance for truth! 

Turkey’s Brilliant Statecraft: The Achievement of Ahmet Davutoglu

15 Nov

   This post is a significantly modified version of an article published by Al Jazeera English  a week ago.


            By a happy quirk of personal destiny I happened to be in Istanbul recently when the Turkish Foreign Minister Ahmet Davutoglu gave a talk at the opening dinner session of the Istanbul Forum. His theme was the Arab Spring as a defining  historic moment of the post-Cold War era of world politics. In the past I have made no secret of my admiration for the thought and creativity of Mr. Davutoglu’s diplomacy. Since appointed as Turkish foreign minister on May 1, 2009 he has already made in this short period an indelible impact on regional and world affairs. I believe that his exceptional contributions to the statesmanship of our time flow directly from his academic studies carried out prior to his entry into government service, as well as the experience he gained during several years of prominent apprenticeship as Chief Advisor to both the Foreign Minister and Prime Minister. Rarely in my knowledge has a major country allowed its foreign policy to be shaped by a non-politician whose public stature and morally attuned sensibility are based on his intellectual accomplishments. Mr. Davutoglu’s authority rests on an impressive mastery and blending of history, politics, law, ethics, and culture as providing the necessary components for a coherent strategic outlook.

One struggles for contemporary comparisons, finding a few similarly qualified and constructive figures that served their country well by directing its foreign policy. Perhaps the most obvious comparison is with the great Chinese Communist Foreign Minister between 1949-1958, Chou En-lai, who was renowned for his learning and pragmatically sound insights into the foreign policy challenges facing his country at a difficult time of transition. Yet the comparison falters because Chou’s thought and action were derivative from a totalizing ideology, lacked freedom of maneuver in policy given Mao’s stern overall control of the Chinese state, and devoted most of his career to navigating with great skill a turbulent revolutionary struggle within China.

Another comparison that might be the intellectually formidable Dean Acheson who served as the American Secretary of State in the period immediately following World War II, and presided over the formation of efforts to respond both to its role as leader of the West and to the Soviet challenge. His was an articulate and generally sensible pragmatic leadership that deserves generally high praise, but it was anchored in a starkly realist worldview that rejected any mention of normative perspectives based on law, ethics, and justice when contemplating the future of world order. It is precisely this receptivity to the normative foundations of human identity that gives Davutoglu’s worldview its uplifting historical relevance. I would observe that without such an appreciation of law, ethics, and justice Davutoglu would be just one more intelligent realist who spent his time devising how best to manipulate the power configurations confronting his government. At the same time Davutoglu is not a dreamy legalist or moralist in the tradition of Woodrow Wilson; he has a firm grasp of the strategic dimensions of world politics, and his untranslated volume on ‘strategic depth’ is undoubtedly his greatest intellectual contribution up to this point.


Comparing Kissinger

In all probability the only recent political figure that possesses an influence and academic credentials comparable to Davutoglu is Henry Kissinger, but having proposed the comparison I need immediately to subvert it mainly for reasons just indicated. Before doing so, it needs to be acknowledged that Kissinger has at this point far exceeded Davutoglu both by his length of tenure at the pinnacles of state power, and by his historical impact, have served a government that possessed the role and status of being the global leader. In contrast, Davutoglu is a relative newcomer, and Turkey is a rising middle power on the global stage, although increasingly a dominant regional presence.

Yet still positive and negative comparisons with Kissinger seems useful. To begin with, Kissinger was a facilitator, not an architect or even an innovator. He was an adept amoral foreign policy entrepreneur who successfully sought and gained entry to the domains of the powerful, and while not a politician, always was prepared to make himself available to do the dirty work of politics. Both Kissinger and Davutoglu share an uncommon ability to think about and explain clearly the most complex international challenges, and both seem endowed with inexhaustible reserves of superhuman energy to implement almost singlehandedly a multi-faceted foreign policy, and neither exhibits great sophistication or appreciation of the economic dimensions of foreign policy, but here the recitation of similarities ends.

Kissinger is stained by his many prevarications and unprincipled approach: extending the war in Vietnam to Cambodia in a manner that allowed, almost coerced, the extremist Khmer Rouge to abandon the countryside, and take over the cities and then harshly impose its will on the entire country by perpetrating one of the worst genocides in history; in the course of diplomatic negotiations to end the Vietnam War, threatening the North Vietnamese with nuclear weapons if they did not give in to American demands in the course of what were supposed to be peace talks; encouraging the military coup in Chile, ironically carried out on 9/11 (although in 1973,) and then backing the notorious dictator, Pinochet, even endorsing Operation Condor, a pre-drone assassination program that inflicted torture and terror on the people of Chile, especially its most idealistic and dedicated youth. Despite his intellectual stature, formidable diplomatic skills, and public recognition, Kissinger is far too compromised ethically and legally to be regarded in a positive light. In this regard, the criticism of Kissinger goes beyond his arch embrace of political realism, and extends to his complicity in the commission of crimes against humanity and war crimes.

Davutoglu has served his government without making any such Faustian Bargains that would suggest that his foreign policy activities are part of an unacknowledged agenda of ambition, international opportunism, and political subservience rather than a reflection of prudence, wisdom, and above all, moral integrity. This quality of principled behavior is what sets Davutoglu permanently apart from the Kissingers of this world, and as unusual as it is for someone of such qualities to rise to such governmental heights, it is probably rarer still, for the presiding politicians in government to seek, welcome, and reward such principled guidance. In this respect, the citizens of Turkey, and really all of us of in the region and the world, should be grateful for the confidence and trust bestowed on Davutoglu by Prime Minister Erdogan and President Gul. It is they who have lifted him from relative academic obscurity to diplomatic eminence, and obviously shared, appreciated, and rewarded his growing number of contributions to Turkish security and influence, as well as to regional peace and justice. This principled consensus was dramatically displayed by the recent visit of the Turkish leadership to Somalia followed by major financial assistance to this most ravaged of African countries. Turkish acceptance of responsibility to lead UN policy toward the 49 Least Developed Countries, beginning with the UN mega-conference held in Istanbul this May is a further demonstration that Turkey’s identity as a principled global actor is more than a reflection of its foreign policy.  

The Republican Inheritance

Perhaps, in this case, the fusion of private religious devotion and public service are connected in ways unique to Turkey that create political space needed for this show of benevolence in government. And here, I think, but it is no more than a conjecture on my part, that some credit needs to be given to the republican legacy of Kemal Ataturk. I say this hesitantly, as an outsider peering inside Turkey through the narrow window slit of my limited knowledge and experience, but it does seem that Turkish secularism, despite its unfortunate excesses, has allowed (for men at least) an effective fusion of religion, morality, and politics at the highest level of the Turkish governing process. Such a fusion has not happened elsewhere in the region. For instance in Iran the Shah tried to mimic the West without establishing a sustainable republicanism. The Shah’s brand of authoritarian rule undermined the moral and religious traditions that derive from the great Persian heritage in the course of embracing a form of modernity that privileged only a small internationalized Iranian elite while consigning the mass of Iranians to seemingly permanent squalor. In the process the Shah left nothing behind by way of constitutionalism on which to build a better Iranian future. Of course, significant blame for Iran’s trials and tribulations is deservedly given to the British/CIA interventions, especially covert moves in 1953 that helped overthrow Iran’s most encouraging democratic movement led by Mohammed Mossadegh, a passionate nationalist. This intervention led to restoring the Iranian monarchy, which established an oppressive police state with the help of its foreign friends. Mossadegh’s sin had been to challenge Western interests by claiming the right to pursue an independent foreign policy, especially through asserting Iranian sovereignty over natural resources by way of the nationalization of the Anglo-Iranian Oil Company. To understand the pattern of Western interventions in the Middle East, follow the oil! Consider in this regard, the current war talk directed at Iran, but also the recent destructive wars fought in Libya and Iraq.

The Iranian Revolution of 1978-79 spun out of this moral and spiritual vacuum that resulted from the Shah’s rule, but without having the benefit of a secular tradition that was both populist and principled. Unfortunately, the new Iran went on to reproduce in theocratic form many of the deformities of power that had precipitated the downfall of the Pahlevi monarchy despite its extensive apparatus of oppressive political rule and its unconditional support in Washington. Kissinger for good reason praised the Shah of Iran in his memoir “as that rarest of things, an unconditional ally.” The concrete embodiments of this submissive Iranian role meant selling oil to apartheid South Africa, as well as opening up its national oil fields to mainly American energy companies and allowing a huge U.S. military presence in the country that included surveillance operations carried out in the Soviet Union from bases in Iran. These comments on Iran are intended to point up how different has been the evolution of modern Turkey, and why someone of Davutoglu’s outlook could not possibly have risen to a position of influence in post-1979 Iran, and if somehow given such an opportunity, would likely have quickly lost the backing of the political leaders of the country, and been forced to return to the sidelines of power.

Before the Arab Spring

The relevance of this detour is to underscore the likely inadequacy of a foreign policy that is either cast adrift from the traditions of a society or that insists on embodying those traditions in a rigid form that is not flexible and normative (respectful of law and morality) enough to address effectively the complexities of the modern world. What Davutoglu possesses as a result of his extraordinary combination of religious devotion and cosmopolitan education is a sophisticated capacity to navigate the waters of global society without getting drawn into power games at home and abroad that are by their nature cut off from principle. In this respect, Davutoglu will never receive or wish for Kissinger’s compliment of being an unconditional ally. A principled ally must always retain the option to act independently, even oppositionally, as the occasion requires. In fact, Davutoglu has been chastised by Big Brother and his think tank minions for taking Turkey out of ‘its lane’ or chided for designing a foreign policy that was premised on the durability of the established order in the Middle East that existed in the region prior to Tahrir Square.  In this respect, Davutoglu was evidently taken as much by surprise as the rest of us by the awakenings throughout the Arab world of this year, not only by their abruptness but also by their originality.

Davutoglu has also been criticized for allowing the relationship with Israel to move from friendship to hostility. If this deterioration is looked upon objectively it becomes clear that Israel was not willing to accommodate the new Turkey that was not just another poodle in the White House kennel. What Turkey did under Davutoglu’s influence, including while he was advising rather than devising Turkish foreign policy included trying to have Hamas after its electoral victory in 2006 treated as a political actor rather than as an ostracized ‘terrorist’ organization, criticized the attacks of Gaza at the end of 2008, and allowed a Turkish NGO to have a prominent role in the Freedom Flotilla that was so crudely attacked by Israeli naval forces in May 31, 2010. This latter attack that resulted in the death of nine Turkish citizens represented a shockingly provocative set of moves by Israel that included executing several of the Turkish humanitarian activists. In response, Turkey sought an apology and some compensation for the families of these victims, but Israel has been unwilling to do either. If Israel were to be capable of pursuing its interests, no more than in the manner of prudent realists, it would seize the olive branch that Turkey has been dangling before its eyes.

To be on occasion controversial in geopolitical circles is almost inevitable whenever a non-Western government seeks to forge its own path, to make its formal political independence into a foundation for the exercise of existential sovereignty. If a Turkish foreign minister were never being criticized in either the West or East he would not be doing his job for Turkey or the world, and should be regarded as inconsequential.

Without entering into a detailed examination of Turkish foreign policy in the Davutoglu years, it is essential to draw a line distinguishing a ‘before’ and ‘after’ in relation to the Arab Spring. Before it was obviously economically beneficial and politically stabilizing to pursue engagement with all countries in the Middle East. Such engagement was premised also on the importance attached to mutual respect for sovereignty, and ultimately, for self-determination, and presupposed what almost all informed observers believed, that the regimes in power were there to stay for the foreseeable future. In this period of ‘zero problems of neighbors’ Turkey raised its foreign policy profile in a positive manner that probably also reflected the heightened difficulties and frustration for Turkey that seemed to negate their strenuous efforts to gain entry to the European Union. The result of these policies seemed to promise over time a mutually beneficial regionalism that also sought to minimize disruptive conflicts. In this regard Turkey made itself available to negotiate peace between Israel and Syria, encouraged peaceful resolution of the Israel/Palestine conflict, attempted to calm the buildup of war threats directed at Iran, and experimented with peace building initiatives to the Balkans and in the Caucasus. Each attempt seemed worthwhile even in retrospect, was done with tact, and produced an inevitable mixture of successes and failures, although overall the economic gains in trade and investment and the diplomatic gains in conflict resolution remain valuable.

After the Arab Spring

Then in January 2011 came the Jasmine Revolution in Tunisia and the effective challenge to the Mubarak autocracy in Egypt. These were remarkable uprisings with still indeterminate revolutionary possibilities, but also containing grave counterrevolutionary risks. What happened in Tunisia and Egypt began happening elsewhere to varying degrees with very different responses: the fires of populist discontent burned brightly in Yemen, Bahrain, and then Syria, Libya, and less so in Morocco and Jordan. Turkish reactions were measured, and Ankara initially used its diplomatic leverage to encourage compromises shaped to avoid bloodshed, especially in Libya and Syria, but as it became clear that the regimes would not accommodate democratic demands, Turkey shifted sides, openly aligning its interests and hopes with the popular struggles. More specifically, this even led to Turkish support for the UN mandated NATO intervention in Libya and increasingly confrontational relations with Syria. As Davutoglu explained when a government shoots and kills its own unarmed citizens so as to retain power, then Turkey will side with such an opposition. In effect, at such a point Turkey’s respect for self-determination shifts its locus from the government to the people.

In my judgment these Turkish realignments were entirely appropriate so long as they did not crossed the line of military intervention. In this regard, I would endorse the Turkish response to Syria while criticizing its support for NATO’s regime-changing military intervention in Libya. These ‘hard choices’ involve difficult decisions of policy in settings of extreme uncertainty as to the effects of deciding to intervene or not to intervene. Put differently, non-intervention can be a form of intervention in some settings, and there is no escaping from a responsibility to act. I would not agree with Davutoglu’s approach in every instance of Turkish foreign policy in the confusing and differentiated national unfoldings after the Arab Spring, but I would strongly affirm the consistency of his principled approach based on this dramatic recalibration of foreign policy tactics and goals in response to the regional turmoil that upset the earlier diplomatic calculus highlighting the benefits of stability and interaction.


Time’s Angel, or A Birthday Letter to Myself

13 Nov


            We live our public holidays by the Gregorian calendar, but what of our private holidays? I decided to create my own, happening to coincide with a birthday, but also an occasion to push the pause and reset buttons on this blog of mine that commenced about a year ago as a ‘gift’ from our daughter and her high-tech husband. I am grateful to them for sending me off on this new voyage of discovery and self-discovery, although at times of controversy I become aware that silence might have served me better, as I am grateful to my other wonderful children for teaching me so much about love and live. It has brought me into contact with tender, wise, and joyful persons from around the world.


            For those loyal folks who have followed my posts even periodically, they realized that the blog has sometimes also provoked anger and even venomous hostility, especially on the part of those who disapprove of my UN role as Special Rapporteur for Occupied Palestine, a role that has led me to be harshly critical of Israel’s policies and supportive of Palestinian struggles for their rights under international law. As someone reluctantly present in public spaces, this atmosphere of insult and injury has made me nostalgic for the serenity of the ivory tower life widely thought attainable in the groves of academe. I would like to retreat at this stage of my life, but it is unseemly to do so as a result of pressures mounted from without, while the Palestinian ordeal persists. Although tempted, I will not use this occasion for the dreary work of responding to my critics beyond saying that I have tried throughout my work at the UN and elsewhere to be truthful without hiding my affinities and identifications with those who are struggling to survive in dignity in the face of oppressive circumstances. In this regard, my debt to the Palestinians is far greater than theirs to me as I have so often been inspired by their courage and steadfastness, and benefitted by their warmth and good spirits.


            Overall, doing a blog reminds us of the art of amateurship (affirming the French root meaning of ‘lover of’), almost lost in our age caught between the mind of the specialist and the nihilistic effects of various cynical brands of postmodernism. The specialist impact on language exhibited by its impoverishment of the word ‘amateur’ to mean dabbler, or superficial idler who should never be taken seriously, and of the nihilist postmodern success in discrediting all forms of belief in a better tomorrow. I find great pleasure in exploring unfamiliar terrain, and feel an exhilarating permission to be foolish on occasion, something that is woefully lacking in universities where it is almost always prudent to be silent and sullen (except when endorsing the views of administrators or right-wing alumni) than to appear engaged and enthusiastic. So for me, when not commenting on the injustices that persist before my eyes, I feel that the blogosphere is basically an arena of exploration and community, especially when a flourishing friendship is bestowed as a form of cyber-grace, the digitized religiosity of this new century. Doing a blog regularly is somewhat akin to keeping a public journal of observations, opinions, and ideas, although for me not a substitute for a private and uninhibited enclave of recollected wrongs and satisfactions, attractions and repulsions, confessions and indictments.  


            Lifting my gaze from these essentially personal concerns, I find a vivid resonances at this moment of reflection in the great opening lines of Yeats’ poem The Second Coming:


                        Turning and turning in the widening gyre

                        The falcon cannot hear the falconer,

                        Things fall apart; the center cannot hold;

                        Mere anarchy is loosed upon the world,

                        The blood-dimmed tide is loosed, and everywhere

                        The ceremony of innocence is drowned;

                        The best lack all conviction, while the worst

                        Are full of passionate intensity.


I meant ‘resonance’ not ‘agreement,’ at least not altogether. I find that during this past year it has been ‘the best’ that have been ‘full of passionate intensity’ as in the Arab Spring and the Occupy Movement. These have been remarkable unanticipated challenges directed at overcoming the injustices and abuses of a variety of established orders, whether or not their still unsettled outcomes are successful in the worldly sense of bringing enduring gains for those involved. What matters now is this mass demonstration of a will to dignity exhibited in so courageously and admirably at Tahrir Square and in many, many other sites of struggle, a magnificent display of the resilient human spirit, which I view as partly expressed by its organic attachment to nonviolent struggle as being in Yeats’ sense the essence of an uplifting ‘ceremony of innocence.’ Yes, ‘the center cannot hold,’ but that might, if true, be welcomed rather than lamented as it is the center that is mainly responsible for ‘the blood-dimmed tide’ that has been ‘loosed upon the world.’ Instead of (re)constructing centers, especially governmental centers, more responsive to our needs and desires, maybe we should think more about revitalizing peripheries or finding ways to dispense with or at least all centers of hard power for a while.


            Dumbing down for a few self-indulgent lines, I never imagined that I could keep my blog afloat in the over-populated blogosphere, and maybe I can’t, and maybe I didn’t, but there was a steady enough stream of positive feedback to keep me going, to make me feel that sharing my reflections on the passing global scene was something more than a narcissistic diversion for an ageing academic who decided to keep working because unfit for the comforts of a rocking chair on the final porch of life. I was also too much of a logistical coward to explore national parks in a systematic way or book tedious ocean cruises to nowhere in particular. I did manage to initiate two satisfying diversions during the past twelve months: solitary I-Pad chess, especially on long overseas trips and nurturing neighborhood birds with good food and attentive adoration, and I continue my search for beautiful glass crystal balls, always seeking better ways to divine the future, always falling short. Of course, these trappings of ‘the good life’ are only satisfying if blessed by love and partnership. And I am so blessed! 


            Since I am claiming the right to ignore the normal cycle of the year’s end, it is an occasion for my ‘New Year’s’ resolutions, or at least pondering how I might challenge myself during the year ahead, beginning with this damnable blog! Should I lighten the burden of my life by its abandonment, or should I relax a bit, and confine its role to registering intemperate outbursts from time to time, hopefully for your sake not too often? Or should I soldier on, both pleasing Hilal and possibly accommodating my declining powers by aiming in the year ahead to produce no more than 50 instead of the insufferable 100 of 2010-11? Or should I just shut up, and let the muse decide on when and whether? I know that ‘resolutions’ are supposed to be commitments not questions, but this is the best that I can do for now as my muse is mute, perhaps in deference to my birthday. At least, it is this repeated sense of failure to live up to the resolve of resolutions that haunts most resolution-makers, but seems to exempt from self-criticism those that hide their weak will behind a façade of unanswered questions!


            My most abiding lifelong political commitment is to side emotionally and actively with the underdog in conflict situations without attention to ethnic, religious, and class differences. This has been so since childhood. I have no idea why. My loving father was inclined toward elites,

respecting and trusting them, and worrying about, distrusting, and opposing those who would make things better, somewhat in the manner of being a principled Burkean conservative. He was deeply opposed to Communism in all forms, including if diluted to become ‘social democracy,’ and disliked even the New Deal response to the Great Depression. I suppose I would have to admit to forming a contrarian streak while still a boy as on the particulars of politics I found myself on opposite side of the political fence from the person who I then loved and respected most in the world. Although he died in 1956 I still feel his stern views as a judgment passed on my own, although softened by his loving tenderness that was always the dominant color of our relationship. It is strange how we never manage to move much beyond the shadows cast by our parents, nor do we wish to end this dialogue that is not ever interrupted even by untimely death.


            More prosaically, living in Montreal for a few months without friends, a car, sports life, and books has made me appreciate the daily good fortune of living in Santa Barbara! Although there are some new discoveries that have accompanied this ‘deprived’ condition, the prospect of returning to the known of the Pacific West is satisfying. And one more observation on being a blogger: you never feel isolated or lonely, there are always present some feelings of connectedness although depending on their character, they may sometimes disturb more than they please, but such challenges do not age the soul!


            The truth is that I am not sure what to do in this rapidly unfolding future. I am most thankful for love, friendship, and health as gifts from heaven, and I will probably keep doing what I have been doing. It becomes harder at this age to contemplate serious alternatives, although little detours into the unknown are still possible and often bring fresh delight, as well as restorative energy. As with other stages of life, even this late one is only satisfying so long as it remains a learning experience that is receptive to surprise and novelty!


            I do wish that a year from now the lines from the Yeats poem will seem quaint and obsolescent so far as the surrounding world situation is concerned, and will be replaced in 2012 by a more life-affirming lyric that thanks time’s angel for spreading its joy to the world. Maybe by then we will think about people as much as we now dwell on the perils of the Euro! Of course, happily, life didn’t begin or end for me at 80, and so I can only become 81 in a state of expectant bemusement!





Redeeming Desire

12 Nov


            My digital friend, the respected author and journalist, Erik Wahlberg, sent me a message recently suggesting that I abandon the use of ‘horizons of desire’ as a way of framing human aspirations. He believed, with abundant justification, that desire is tied to consumerism, and the social construction of market demand for the luxurious, the wasteful, and the superfluous. Going further, borrowing from Noam Chomsky’s critique of ‘manufactured consent’ as expressive of mainstream media indoctrination in a liberal society, I would suggest that the term ‘manufactured desire’ might encompass Wahlberg’s appropriate concerns about the excesses of capitalism as promoted via advertizing, including ever more sophisticated techniques of subliminal manipulation. Let me go further, and suggest that due to growing pressures on food, water and energy security, prospects for future wellbeing and even civilizational survival depend on an ultimate repositioning of economic production and consumption around needs rather than wants, finding satisfaction and fulfillment through living in harmony with nature rather than, as now, as a predatory antagonist.


            Despite accepting this line of thinking, I am too fond of desire to consign it to ‘the enemy.’ For me desire expresses our spiritual wishes as much, or more so, than our material appetites, and of course, honors our sensuality as a source of love and sacred attachment. As with any virtuous quality, desire can become excessive or malevolent, and must always be realized within an ethical framework of affirmation of ‘the other’ as subject, and never an object. In other words, desire, like its sibling, freedom, must be joined at the hip to an overriding sense of responsibility that includes prudence. Almost all forms of addiction are instances of over-indulging desire, which if contained within an ethos of moderation, would be satisfying and even redemptive.


            Such a redemption of desire as a matter of ‘living well’ is distinct from the collective concerns of ‘living well together,’ to borrow again from another seminal thinker of our age, Jacques Derrida. For me, ‘horizons of desire’ supplements ‘horizons of necessity’ (what must be done for the sake of survival and sustainability) and ‘horizons of feasibility’ (what can be done given the constraints and inhibition of politics as usual, that is, politics conceived of as ‘the art of the possible’). What horizons of desire adds is the relevance of dreams, hopes, aspirations for a better, even an ideal, human future, a perfected ‘city of man’ to invoke the dualistic image of St. Augustine.

It is what the utopian imagination and visionary thought contribute to our engagement with the politics of a better tomorrow. It is what Goethe must have meant when he said in the patriarchic idiom of his day, “him who strives he we may save.” Or in my more secular terminology reacting against the closures associated with respecting horizons of feasibility, allow ourselves to be guided hereafter by ‘the politics of impossibility.’ To be more concrete, I believe that the existing gaps between what is necessary and what is possible can only be closed by enlisting desire in the enterprise.


            Let me illustrate these abstractions more concretely. On matters of global scope, nuclear weaponry and climate change are swords of Damocles dangling precariously above human destiny. Existing political mechanisms are paralyzed by the shortsightedness of the 1% and the passivity of the 99%, which means that the necessary adaptations are ignored as not feasible. In effect, the threats posed are hidden through an induced narcosis: ‘a psychosis of denial.’ Desire means an awakening, an activism, a readiness to occupy and resist removal.


            More narrowly conceived issues have the same structure, whether it is a just process of self-determination for Palestinians, Kashmiris, Kurds, and others or deferred historical justice for the many dispossessed indigenous peoples living in endangered enclaves of deprivation throughout the world or empathetic solidarity with the growing circle of victimization arising from the Fukushima disaster. It is only desire that gives teeth to the rhetoric of solidarity.


            For me, acknowledging desire is indistinguishable from the vocation of healing the many wounds of the planet. I believe desire bestows delight and is powerful whether as emotion or fantasy. It is passion unleashed for the sake of the good, the true, and the beautiful.


Criminalizing Diplomacy: Fanning the Flames of the Iran War Option

11 Nov


            How many times have we heard in recent weeks either outright threats to attack Iran mainly emanating from Israel or the more muted posture adopted by the United States that leaves ‘all options’ on the table including ‘the military option’? What has Iran done to justify this frantic war-mongering in a strategic region that is sorting out the contradictory effects of the long Arab Spring and is the contested site of energy geopolitics that has replaced territory and minerals as the core issue of world politics?


            As a matter of historical context, it is worth observing that the Western military interventions of recent years, Iraq and Libya, were both in oil-producing countries, devastating the country to achieve regime change, which remains the central tenet of the neocon/Netanyahu vision for a reconfiguration of power in the Middle East. It follows that Iran remains the only oil producer in the region that refuses to play nicely with West, and has been sanctioned to some degree ever since it achieved an anti-Western regime change back in 1979. In this setting of pre-war hysteria—pouring the fuel of rumor and threat on the fire of belligerent diplomacy—I have no intention of discounting the grievances of those who bravely opposed the theocratic regime from within after the fraudulent elections of June 2009 in the shape of the repressed Green Movement, but it is beside the point in the present debate.


            Why talk of oil if the war momentum is explicitly preoccupied with the alleged effort by Iran to obtain nuclear weapons? Let the facts speak for themselves. Where there is oil and an anti-Western government in power, recourse to the military option follows, or at least an insistence on sanctions that aim to be crippling and regime-changing. Just as in Iraq, the smokescreen in 2003 were its stockpile of weapons of mass destruction, and when that war justifying scenario was discredited, democracy and human rights abruptly took over as the strategic rationale. Not to be overlooked, of course, was backroom Israeli pressures to destroy the Baghdad regime of Saddam Hussein,  as well as the oil, involving both favorable access to the oil fields and some leverage over pricing. We all need to be reminded over and over again that Western prosperity rested on cheap oil, and its future prospects crucially depend on reliable supplies of oil at moderate prices. We need to be reminded because as Donald Rumsfeld once reassured the world, ‘America doesn’t do empire.’ Really! Concerns about oil security in the future are the real unacknowlegeable threats to the security of the West!


            Such illicit interventionary diplomacy should be unmasked. For once we can look to Moscow for a benign clarification. The Russian Deputy Foreign Minister, Gennady Galitov, was quoted as follows: “The world community will see additional sanctions against Iran as an instrument of regime change in Tehran. We cannot accept this approach.” The plausibility of this interpretation is given further credibility by Iranian exile voices calling for targeting Iran’s central bank and currency with the avowed intention of bringing such hardship to the people of Iran as to mount destabilizing pressures from below on the Tehran government. The leader of the Green Movement, Mir Hossein Mousavi, has repeatedly spoken against international sanctions, insisting that they hurt the people of Iran and strengthen the hold of the government on the population. The struggle for Iranian self-determination must be waged by the Iranian people, not their self-interested patrons from without. Such patrons heeded in the Iraq case, and recently influential in the Libyan case as well, contribute to a war making process that leaves their country in shambles. True, the West is at first ready, but not able, to pick up the pieces. The result is continuous unresolved violent conflict, acute and widespread human insecurity, followed by eventual abandonment of the post-war reconstructive commitment. Iraq is tragically illustrative.


            As has been pointed out by some opponents of this war fever, Iran has not attacked another country in 200 years. As President Ahmadinejad recently informed Iranians in the city of Shahr-e Kord: “The Iranian nation is wise. It won’t build two bombs against the 20,000 you have.” The former heads of Israel’s Mossad, Meir Dagan and Efraim Halevy, confirm the view that Israel would not be seriously threatened even if it should turn out that Iran does come to possess a few nuclear weapons in the future. Their contention would be that such a nuclear capability would only pose a threat for Iran’s Sunni rivals, especially Saudi Arabia and Bahrain, as Israel would retain an overwhelming deterrent even without American backing. Of course, it is true that the Western alliance does not want any regional developments to destabilize its regional friends, no matter how autocratic and repressive. So much for the supposed Western embrace of the democratizing spirit of the Arab Spring! For hypocritical William Hague, the pro-Israeli Foreign Secretary of Great Britain to say that Iran’s nuclear program is threatening ‘to undermine’ the Arab Spring by ‘bringing about a nuclear arms race in the Middle East of the risk of conflict’ is obviously to point his finger in the wrong direction. There are also murmurs in the background, perhaps to shift attention away from Israeli war-mongering, to the effect that the real danger associated with Iranian acquisition of nuclear weapons is that Turkey and Saudi Arabia would follow suit.


            If these were the serious concerns of this kind there are other far better ways to proceed. Why is there no mention of Israel’s nuclear weapons arsenal, of Western unlawful assistance in helping Israel to cross the nuclear threshold covertly, of Israel being one of three important states in the world that has refused to become a party to the Nonproliferation Treaty, and of Israel’s refusal to discuss even the idea of a nuclear free zone in the Middle East that Iran has announced its readiness to join? If oil is the foremost reality of which we must not speak, then Israeli nuclearism is a close second. We understand that the Obama presidency has been reduced to silence, but why are no regional and global voices speaking on behalf of nuclear sanity?  Is Israel’s status as a nuclear weapons state as untouchable a feature of a dysfunctional system of global governance as the retention of Britain and France as two of five permanent members of the UN Security Council? Such sacred cows of an entrenched world order are dooming the 99% as much as the demons of Wall Street!


            And then there is a third reality of this deepening crisis of which we are blinkered by a compliant media not to notice: the total disregard in the public policy debate of international law that prohibits all non-defensive uses of force, including threats to do so. This core norm of the UN Charter set forth in the language of Article 2(4), reinforced by the International Court of Justice in the Nicaragua case in 1986, was built into the idea of Crimes Against Peace that served as the basis for indicting and convicting surviving German and Japanese leaders at the Nuremberg and Tokyo trials after World War II. There is not even a lawyerlike attempt to argue that Bush’s discredited doctrine of preemptive war applies to Iran, there is instead a presumed total irrelevance of international law to the policy debate. To discuss the military option as if not circumscribed by solemn legal commitments, while building the case that Iran is subject to attack because it has violated its NPT obligations as a state pledged not to acquire nuclear weapons, is double think emblazoned on the sky of hard power geopolitics. Accountability for the weak and vulnerable, discretion for the strong and mighty. It is this woeful message of street geopolitics that is being transmitted to the peoples of the world in this crisis-building moment.


            There is one final point. If ever there was an argument for the acquisition of nuclear weapons by Iran, the diplomacy of Israel and the West has fashioned it in a strong form. After all Iran is being constantly threatened with attack by states for more powerful than itself, and although it possesses retaliatory capacity, it is vulnerable to devastating attacks from sea, air, and land. Can we imagine a better set of conditions for acquiring nuclear weapons so as to deter an attack? If deterrence legitimates nuclear weapons for the West, why not for Iran? Would Iraq have been attacked in 2003 if it had a stockpile of nuclear weapons accompanied by delivery capacities? These questions point in two directions: the unacceptable two-tier structure of governance with respect to nuclear weaponry that the world has endured since the atomic bombs were dropped on Hiroshima and Nagasaki in 1945 and the imperative urgency of rejecting nuclear hegemony and oligarchy, and moving toward a negotiated nuclear disarmament treaty. There is no morally and legally acceptable or politically viable alternative to the abolition of all nuclear weapons as a global policy priority of utmost urgency.

Saying No to Alan Dershowitz

10 Nov

On declining Alan Dershowitz’s challenge to debate my endorsement of Gilad Atzmon’s autobiographical The Wandering Who? (my few lines are an echo of a poem by ee cummings that I recall reading many years ago). Dershowitz’s defamatory polemic can be found in the Huffington Post, but why it was considered publishable remains for me a dark mystery. Gilad Atzmon’s response can be found on his blog for those sufficiently interested.








There is








            will not