Archive | August, 2023

Niger’s Ordeal of Forever Colonialism

27 Aug

[Prefatory Note: The original interview on the coup in Niger with Zahra Mizrafarjouyan of Mehr Agency in Tehran was published on Aug. 14, 2023. A lot has happened since then that affects Niger, and how we understand its relation to that country, to West Africa’s Sahel region, to Africa generally, and to the geopolitical war of position that puts the U.S. rivalry with Russia and China in the foreground. I have taken ‘liberties’ with my interview answers to address this awareness of the broader context]  

  1. What was the destructive colonial role of France in West African countries?

As elsewhere, but perhaps more crudely and more deeply, France dominated the post-colonial experience of West Africa that commenced in 1960, politically controlling and ruthlessly exploiting these countries economically whose populations were impoverished despite being resource rich. France more than other European colonial powers sought to replace the indigenous culture, including its language and cuisine, with what it claimed to be superior, which was of course, French culture. In Africa in particular France also created a set of conditions that made the society incapable of stable and equitable governance after formal independence was gained. As a result, a heavier residue of colonialism remained after independent statehood was achieved than in most other countries. Niger’s impoverishment, with an extreme poverty rate of over 40%, is a textbook case of ‘colonialism after colonialism.’ The differences between pre-independence colonialism and its post-independence sequel should be more than a matter of changing the flags and changing the racial features of the ruler, but even in the best of circumstances it is far less for decades than the exercise of the full right of self-determination for reasons long ago provided by Franz Fanon. The post-independence voluntary acceptance of Western military bases is indicative of the governance deficiencies of the native leadership capabilities when it comes to national security. In the case, of encroaching jihadist movements with their own territorial ambitions that have been encroaching on Sahel countries during the last twelve years. Analogous weaknesses, including capabilities, corruption and cooption, help explain the one-sided agreements on the production and marketing of resources is imprudently entrusted to the good will of the former colonizers.

The role of collaborative and corrupted national elites becomes indispensable to make the system of governance enjoy a semblance of political legitimacy that facilitates imbalanced resource related agreements that deprive the home country of its fair share. In the context of Niger, these foreign, non-African actors build further their case for interventions in such countries as Niger by pointing to the virtue of protecting democratically elected leaders against extra-legal coups of the sort that occurred on July 26th. The hypocrisy of the West is revealed when democratic elections produce a political mandate for radically nationalist leaders as with Chavez in Venezuela, or earlier Castro in Cuba and Allende in Chile. As with human rights, such enthusiasm for elected leaders is a selective policy instrument entrenching double standard, not a principled commitment to the rule of law, discrediting ideals that deserve more consistent respect if the peace and justice of the peoples of the world are to be served.

Niger, as with the earlier somewhat similar coups in Mali and Burkina Faso suggest, an important difference that distinguishes the two types of colonialism. It is that the post-colonial state, however beholden it remains in relation to its prior colonial master, has a strong sense of nationalist entitlement among non-collaborationist elites that is often shared with the armed forces and influential sectors of the population, and over time leads to a second anti-colonialism, an anti-colonialism after political independence. Such motivations seem present in the Niger coup leadership despite the fact that many of its members, including its apparent leader, General Abdurahman Tchiani, underwent extensive training by the U.S. armed forces, which usually produces compliant military leadership.

Besides personal ambition and a repudiation of ‘puppet’ leaders, the passage of time after independence leads portions of the elites and masses to grasp the connections between exploitation by the former colonial power and the poverty of the country that is giving away its potential prosperity. 

2- It seems that France has kept its colonial role in the regional countries even after these countries gained their independence. What are the tactics that Paris uses to keep its influence in these countries?

The colonial era refused to educate and train an indigenous elite capable of running these West African countries without French assistance in the security, technological sophisticated, and economic policy spheres. When independence was granted in 1960 the French negotiated a series of self-serving arrangements that kept its troops in the country and its favorable and highly profitable and predatory relationship to the natural resources of each of the West African countries that had been its former colonies. Internal conditions prevailed in these countries that resulted in a new unspoken realism that I call ‘colonialism after colonialism.’ It is a way of underscoring the point that the structures of control and exploitation have persisted long after independent statehood, yet in more subtle forms, was achieved in the early 1960s, but without the stigma of ‘colonialism.’ As earlier explained, this process is greatly facilitated by the cooption and corruption of local elites that give a nationalist veneer to this reality of ‘stunted decolonization,’ but if the inequities are too gross a new surge of resistance to foreign exploitation begins to form, and will produce some kind of radical nationalist backlash.

3- What is the political, economic and military importance of Niger for France? Do you think that France whether France will be able to return to the African country?

French interests, also reinforced by Western interests, particularly by the U.S., are especially important in Niger. To begin with, as a spillover from the NATO regime-changing intervention in Libya, an alleged jihadist presence in the country became a target in counterterrorist agenda of the Global North and a pretext for the deployment of Western military forces, and the construction and maintenance of expensive military bases. For France in particular, Niger was a major source of uranium for its nuclear power facilities. It also had gold mines and oil reserves, both controlled by foreign corporations made profitable by low labor costs and pricing well below market values. Niger is also seen as strategically important to ensure that African countries keep aligned to and dependent upon the West as part of its multi-dimensional struggle with Russia and China for geopolitical primacy in the world. Africa has evolved into becoming an arena of this unfolding rivalry that has risen to the surface of global awareness in the course of the Ukraine War of the nuclear dangers of confrontations in the Global North, and offers a semi-peripheral seemingly less dangerous terrain to carry on the new cold war.

4- Some African countries are ready to wage war against Niger in fact to the benefit of France despite the fact that they themselves have been suffering from France colonialism. Why?

On the basis of available information, it is difficult to respond convincingly, especially as various African countries have distinct national motivations in such a complex situation and belatedly faced the fact they lacked the capability to ensure their own territorial security much less take part in an intervention of a sister African country. At the same time seems that many African states have grown worried about their own stability, and do not want to create another precedent of a successful West African coup as occurred in Mali, Burkina Faso. In addition, corrupted elites are fearful of their own vulnerability resulting from the spread of these expressions of anti-Western national radicalism. Part of the reality of colonialism after colonialism are habits of dependence that are difficult to break, especially if intertwined with corrupting incentives and threats to collaborating national elites that act as bonding ties to the former colonial power.

There is also issues arising from non-African interventions by external actors if Africa does not act to reverse the outcome of the coup. There is a growing fear that Africa could become an battleground for the geopolitical rivalry involving the U.S., Russia, and China if a second cold war continues to unfold. As observed, Ukraine War has raised concerns in the Global North about dangers of nuclear war that seem to be giving rise to temptations to shift armed struggles to the Global South as was the case in the Cold War.

So far, various states have acted with caution, with Russia taking the lead in urging non-intervention. The United States seemed at first ready to condemn the coup and suspend economic aid, but later has been sending mixed messages, including refraining

from calling the July 26 takeover of the government a coup despite have the features of a coup. If declared a coup then by legislative mandate, economic assistance would be suspended until civilian government is restored. It raises the question, ‘when is a coup not a coup?’ The answer is simple, a coup is not a coup if strategic interests so dictate.

Such a moderation of pressures may also reflect the position of the new Nigerien leadership which has sent signals that it is receptive to diplomacy and wants a renegotiation not a rupture with France.

5- Do you think that war will be waged in the region?

It is hard to tell, and partly depends on the type of pressure exerted by the U.S. and Europe, and the flexibility of the new civilian leader of Niger, a former Finance Minister, Ali Mawawan Lamine Zeine and the junta. And partly about how worried other African governments are about the danger of coups in their own country or already threatened by extremist insurgencies. Neighboring Nigeria that has been leading the effort to reverse the outcome in Niger is key to whether a diplomatic compromise can be negotiated, or a war erupts.

A central issue is whether foreign troops will be allowed to remain in Niger. A major outcome of the earlier similar recent coups in Bukina Faso, Mali, and Guinea each development provoked by the presence of foreign troops of France and the U.S. Each of these coups resulted in the demands for the removal from the country. At present, there are French, U.S. and Italian bases and detachments of armed personnel in Niger. it may be seen as a victory for the national military that launched this latest coup if these foreign forces are removed, and a humiliating setback if they are allowed to stay, or it may not if national forces are unable to contain the extremist group already occupying national territory.

The deposed President of Niger, Mohamed Bazoumi, is lauded in the West as the first democratically elected president in the country and condemned by the coup leadership as massively corrupt and coopted. There is no doubt that a war in Niger would be a tragedy for the country and the region, given its already impoverished population and the overall low rankings for these Sahel West African countries on the Human Development Index.


5- In case of any war, what will be Russia’s reaction as you know many Russian Wagner forces are stationed there?

The Wagner Group’s role and response is part of the overall uncertainty, greatly accentuated by the death of its leader Prigozhin in a plane crash. So far Russia’s official position have in general supported the coup and opposed intervention from without. Whether the Wagner Group even with a mission of defending Niger possesses sufficient capabilities to alter the relation of forces in Niger or West Africa is unknown. There is a danger of a proxy war, which would prolong the combat and raise the stakes of winning and losing, with dire consequences for the people of Niger, and elsewhere in the region.

Whether the coup in Niger represents the last stage of decolonization or is just one more chapter in the under-narrated story of colonialism after colonialism remains to be seen.

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Law & War: A Comparison of Vietam and Indochina

26 Aug

[Prefatory Note: The post below in the text of my foreword to an exceptionally valuable comparison of conflicts: Vietnam and Arab-Israeli. These two regions have preoccupied me throughout my professional career and in the course of my life as an engaged citizen. The book, just published by Michigan University Press, is the source of insight, as well, to the evolution of international law relative to such conflicts.]

Making Endless War: The Vietnam and Arab-Israeli Conflicts in the History of International Law

Brian Cuddy and Victor Kattan, Editors, 2023.

How International Law Evolves: Norms, Precedents, and Geopolitics

Prologue

We should understand that this volume devoted to the relevance of international law to these two geographically distinct war zones in the Middle East and Southeast Asia in the period after World War II is a very distinctive undertaking. I am not familiar with any similar search for comparisons and connections, either in relation to the Indochina or Arab-Israeli conflicts, with respect to lawmaking interactions and potentialities. What is notable about this inquiry is that it considers the interaction between regional scale conflicts to be both a source of new norms of international law and occasions for evasions and justifications of existing norms.

My point of departure is to take note of the motivation of the lead political actors in both conflict configurations to evade the constraints on the use of force imposed by the UN Charter, a constitutional framework for international law drafted under the primary influence of World War II, achieving a special urgency after the use of atomic bombs against Japanese cities. This influence expressed itself by the adoption of a war prevention rationale powerfully set forth in the opening words of the Charter Preamble, “…to save succeeding generations from the scourge of war.” This language was a response not only to the devastation associated with the thus concluded war with its 60 million deaths, but to the fear that a future war of similar or greater proportions would bring even more catastrophic results for the entire world. The Charter norms on the use of force were designed to be very constraining, suggesting that recourse to force by states was to be legal only if undertaken in self-defense against a prior armed attack [Articles 2(4), 51 of the UN Charter] or in response to a decision authorizing the use of force by the Security Council. As the editors’ introduction to the volume suggests, the Charter carried forward the transformational ambitions to prohibit international war-making and coercive diplomacy by constraining legally mandated recourses to international uses of force as comprehensibly as possible. It should be understood that these ambitions were always tied to the self-restraint of and harmony among the five permanent members of the Security Council who enjoyed a right of veto, which effectively exempted them from an obligatory connection to the international legal norms governing force set forth in the Charter. Even if the General Assembly attempted to fill this gap between international law and this disturbing geopolitical privilege its authority was constitutionally limited to making ‘recommendations,’ lacking in obligatory force.

The geopolitical condition of fragile and always partial harmony that prevailed in 1945 as a result of the recent victory over fascism achieved by the Allied Powers did not last very long. The UN was established with some hope, although contested by political realists from its inception, that the combination of these restraining norms and the collective security mechanisms of the Security Council could ensure a peaceful world. Such idealistic expectations were challenged by events. First came the Korean War (1950-53) and then by the 1956 Suez Crisis and Operation, and above all by the outbreak of the Cold War that ruptured forever the pious hope a wartime alliance could be transformed into a peacemaking coalition. Nevertheless, until the decade of the 1960s there remained a superficial attachment by the geopolitical antagonists to the UN Charter framework constraining aggressive war-making as the focus continued to be on the avoidance of a third world war or any disregard of the taboo prohibiting recourse to nuclear weaponry.

This changed in the decade of the 1960s. It became clear that the victors in World War II were faced with significant geopolitical challenges and possessed strategic ambitions that could not be satisfied by adhering to the Charter norms. This was made apparent in the Indochina War, especially its Vietnam central arena. The Charter notion of self-defense was not applicable nor would the American extension of the war to North Vietnam in 1965 have enabled the Security Council to restore peace due to the veto power possessed by the geopolitical antagonists, the Soviet Union, China, and the United States. For these reasons the Indochina War, despite its scale and level of destruction, was undertaken without heeding or seriously engaging the UN framework or contemporary international law.[1] The U.S. Government, in particular, issued elaborate documentary justifications for the forcible actions undertaken by invoking international law. Its legal rationalizations were partisan in nature and one-sided, and as such unconvincing to the scholarly community of international jurists.

As well, both in Indochina and the Middle East the warfare that resulted was not between political entities of symmetric technological capabilities and tactics. International law had been evolved to address wars fought between sovereign states of roughly equivalent technological capabilities, and was concerned with limiting and regulating war rather than outlawing it. The experience of World War II convinced the victors that there was a gap in the legal framework concerning the protection of civilians living under military occupation, captured prisoners of war, and the treatment of wounded soldiers on the battlefield. This realization resulted in the negotiation of the four Geneva Conventions of 1949, a new corpus of law that became known as ‘international humanitarian law.’

Yet these Geneva Conventions were still preoccupied with wars between sovereign states. What was shown by the Indochina and Middle East wars of the 1960s was the importance of extending international humanitarian law (IHL) to conditions of sustained warfare within sovereign states, especially when magnified in intensity by external interventions, proxy wars, and geopolitical alignments. Acknowledging the prevalence of this new type of violent conflict gave rise to the two 1977 Geneva Protocols that were deemed supplemental to the 1949 treaties. In particular, Protocol I dealing with the Protection of Victims in International Conflicts was a tricky area for international law as it challenged the sovereign rights of the territorial government, and even trickier for the United States as it explicitly extended the protection of international humanitarian law (IHL) to armed conflicts in which a people are fighting against colonial domination, alien occupation or racist regimes.[2] This meant that Protocol I applied to foreign interventions in domestic armed conflicts that were struggles over the control of the state. Protocol II was somewhat less controversial as it extended IHL to non-international conflicts and did not have any bearing on interventionary diplomacy, although it did seek IHL accountability for purely internal wars, purporting to put legal limits on previously unlimited territorial sovereign rights.  

By considering such conflicts as entitled to international protection it was perceived as weakening the sovereign authority of states to deal with insurgent opposition movements without being subject to international legal accountability. This resistance to the internationalization of anti-colonial struggles pertains directly to the Vietnam and Palestinian experiences. Indeed, the diplomacy producing the Protocol was prompted by the tactics and experience of the Vietnam War, which exhibited gaps in the coverage of international humanitarian law as specified by the four Geneva Conventions of 1949.[3] The importance of exempting such armed conflicts from IHL is part of the geopolitical effort to retain freedom of geopolitical maneuver, as Cuddy and Kattan explain, in the momentous international shift from the earlier international law focus on total war to the new realities of endless limited, yet devastating, wars. Protecting civilian populations in this new epoch of post-colonial warfare, as in Syria, Yemen, Afghanistan, Iraq, Libya, and Ukraine are suggestive of the need for further renovation and effective implementation of IHL, and indeed the overall law of war framework. A merit of this volume is to frame this transition by reference to the Vietnam and Middle East experiences, with particular reference to the unresolved Palestinian struggle. This struggle has taken on a new relevance in the last five years as a result of an emergent civil society consensus that Israel apartheid policies and practices are blocking the realization of the long denied basic rights of the Palestinian people.  

In assessing these legal developments two features of international political society are paramount, and need to be kept in mind when discussing the two geographically and psycho-politically distinct war zones:

                        –the primacy of geopolitics vis-a-vis international law;

                        –the primacy of military necessity in combat situations.

These two realities, given the absence of centralized governmental institutions on a global level, have accentuated the marginality of international law in war/peace situations, both with respect to recourse to force and the behavior of the parties in the course of warfare.

Acknowledging these two definitive constraints on the role of international law in relation to war should not lead us to cynical conclusions that ‘law is irrelevant with respect to war’ or that ‘international law does not matter.’ International law is relevant and matters for several reasons: it empowers civil society activism; it provides a channel for domestic dissent from war making in democratic societies in both government circles and civil society; it moderates behavior of belligerent states to the extent that reciprocal interests support compliance with international legal norms (e.g. treatment of prisoners of war).

During the Vietnam War, the U.S. Government was more eager than subsequently, to retain its liberal image as a champion of a law-governed international order, and so went to great lengths to argue that its policies and practices in Vietnam accorded with international law and the UN Charter. Such motivations also legitimated anti-war activism that could invoke international law to challenge Washington’s behavior in Vietnam. It also emboldened critics in Congress to mount objections framed in legal and constitutional language, and allowed international law scholars like myself to be invited to testify before Congressional committees or have opinion pieces published in mainstream media venues.[4]

Unfortunately, with the rightest drift in American politics and the lobbying leverage of AIPAC and other Zionist groups, the authority of international law and the UN have experienced sharp declines. The U.S. no longer invests diplomatic energy in upholding a liberal image, and increasingly relies on coercive threats and militarism to pursue its foreign policy goals, especially in the Middle East. The reliance on unlawful threats of military attack has been at the core of U.S./Israeli/Saudi confrontational diplomacy directed at Iran for several decades. This trend has reached a symbolic climax of sorts by its imposition of sanctions on the Prosecutor of the International Criminal Court for recommending an investigation of U.S. war crimes in Afghanistan. Israel, also, has responded with a furious denunciation of this international institution for daring to propose a limited investigation of its crimes in Occupied Palestine. Although the U.S. government after a change in presidential leadership terminated its sanctions imposed on ICC officials, it refused to accept the extension of ICC authority to investigate allegations against itself or Israel. Since the Ukrainian Crisis of 2022 the U.S. Government has displayed a mixture of hypocrisy and opportunism by urging ICC investigation of Russian war crimes in Ukraine, and the indictment of Putin.

The fury of these reactions suggests two opposite interpretations. The first, and most obvious, is the refusal of leading states to defer to international law in settings where national security issues or geopolitical alignments are paramount. And the second, that the fury of the reactions to legally framed allegations suggest how deeply sensitive the governments and leaders of such states become when accused of serious violations of international law by credible procedures. In response, such governments do not try to defend their behavior, but move to discredit and weaken international procedures of accountability, in part, as a form of damage control to avoid any worsening of their international reputations. Even if the ICC were to prosecute and convict, there is almost no prospect that its judgments would be enforced, and so the whole pushback is about safeguarding legitimacy and opposing impingements by the deployment of symbolic politics as causative influences in traditional spheres of geopolitical and sovereign autonomy.

A Brief Comment on the Two War Zones

For the United States in Vietnam the Charter norms were perceived as inconsistent with the mission to prevent a Communist victory in South Vietnam and a subsequent unification of Vietnam under the control of Hanoi. It was believed in Washington that it was militarily necessary to extend the war zone beyond the boundaries of South Vietnam to punish North Vietnam for supplying the anti-regime insurgency led by the NLF. Similarly, the extensions of the war to Laos and Cambodia were prompted by calculations associated with disrupting the support of the war in the South of Vietnam by keeping a base area in and maintaining supply chains that passed through Cambodia. Similar reasoning produced sustained U.S. air attacks on Laos, unlawfully abusing diplomatic privileges by orchestrating this military campaign from within the American Embassy in the Laotian capital city of Vientiane. In other words, the Cold War priorities prevailed over efforts to constrain recourse to war and tactics in war.  On the other side, the priorities of national liberation and anti-colonial legitimacy also prevailed over legal constraints.

In the Middle East there were similar factors at work, although tempered by some balancing considerations. The United States was still in the 1960s seeking to balance, at least in public, its commitment to Israel with its vital strategic interests in retaining favorable access to regional oil supplies at affordable prices situated in Arab countries. In this respect, contrary to Israel’s wishes at the time, the U.S., along with European countries, sought to affirm international law with respect to the acquisition of territory by force, the major premise of the unanimous UN Security Resolution 242 adopted after the 1967 War. Yet even then there was insufficient political will to implement the rhetoric, by an insistence on a timely Israeli withdrawal.

Of even greater relevance to the focus of the volume is the degree to which antagonists in the Middle East with respect to Israel/Palestine evaded the Charter norm on recourse to war. Israel in 1967 and Egypt in 1973 both sought to gain military advantage by striking first, and thus apparently violating the requirement of a prior armed attack contained in Article 51, although there are respectable legal counter-arguments in each setting.[5] Both governments defended their actions by claiming security imperatives as providing a convincing ‘legal’ rationale for preemption.

As far as interconnections are concerned, both war zones produced conflicts that ignored the fundamental framework of international law and institutional accountability that was the hallmark of the war prevention efforts after World War II. The asymmetric nature of the wars also strained the law of war during combat, especially in Indochina, but also in the Middle East to the extent that warfare after 1967 temporarily shifted to Palestinian efforts to pursue an armed struggle strategy that was designated as ‘terrorism’ by Israel and its supporters.[6] During its various military attacks on occupied Gaza Israel exhibite a disregard for international law constraints, and did no without suffering any adverse consequences. This counter-terrorist rationale had been used by the U.S. in Vietnam, but with less impact due to the outcome of the struggle and the absence of widespread support for the war in the West, including even in the U.S. in its last stages.

International Law Evolves

Against this background it becomes possible to get a better appreciation of how international law evolves. It is important to realize that in some sense all of international law is ‘soft law’ because of the absence of regular procedures of authoritative interpretation and enforcement, not to mention ‘the geopolitical exemption’ of the winners of World War II implicit in the right of veto conferred by the Charter.

Added to this, international law in relation to peace and security issues suffers from the special issues previously mentioned—essentially, the primacy of geopolitics and of military necessity. Geopolitics manipulates the law governing recourse to force, while military necessity by its priority under combat circumstances is constantly reshaping the law involving the use of force.

A major interconnection between Indochina and the Middle East is illustrative. In Indochina the United States created a strong precedent for disregarding the Charter conceptions governing the law governing recourse to force. It put forward some legal justifications to the effect that North Vietnam was guilty of ‘indirect aggression’ by its support of the insurgency in the South, creating a legal foundation for extending the war beyond the artificial boundary delimiting South Vietnam. After the 1964 Gulf of Tonkin alleged attack on American naval vessels in international waters and the February 1965 NLF attack on a U.S. military camp near Pleiku, the U.S. Government shifted its legal rationale to one of collective self-defense against a prior armed attack.[7] It also contended that Cambodia and Laos violated the laws of war governing neutrality by allowing their territories to be used for hostile purposes associated with North Vietnam’s belligerent activities.

Although Israel in 1967 and Egypt in 1973 did not specifically invoke the American precedents set in the Vietnam War, their conduct was shielded from critical scrutiny by the combination of a weakening of the geopolitical commitment to the Charter conception of permissible recourse to force, and by the sense that these specific recourses to force were within their context ‘reasonable.’ Because of the geopolitical alignment with Israel, the Egyptian surprise attack on Israel was legally condemned by Western countries, but in a manner that made it appear to be more an expression of alliance diplomacy than a pronouncement of allegiance to international law. Such a view gains weight from the pattern of practice in years subsequent to 1973.

It was also evident that the West controlled international legal discourse on permissible and impermissible uses of force. In this way the violence of non-state actors and liberation movements was demonized as ‘terrorism’ while state violence even if directed at civilian targets was treated under rubrics of security and self-defense rather than delimited as ‘state terror.’ Such a discourse gained wider impacts after the 9/11 attacks on the U.S., and through the launch of the so-called ‘War on Terror.’ It has impacted strongly in the Middle East contexts, especially allowing Israel to validate its excessive force and collective punishment as security measures or as the exercise of the right of every sovereign state to defend itself. To some extent, especially in recent years, the UN has challenged this discourse by issuing many reports on Israeli violations of the Geneva Conventions and international humanitarian law more generally. This tension between the geopolitical discourse and the UN discourse is what leads the U.S. and Israel, in particular, to make accusations about UN bias when it comes to violations of international law. It is this tension, however, that encourages civil society initiatives to claim the legitimacy of international law, as is the case with support for the BDS Campaign or by mounting challenges to Israeli apartheid.

It should be noted, in passing, that when Western interests are engaged, as by Russia’s recent aggression against Ukraine, the Charter framework is again invoked as if it is as authoritative and constraining as when adopted in 1945. In other words, the fate of norms is tied to the control of the international normative discourse, and especially in relation to the geopolitics of propaganda. For partisans it highlights the relevance of international law, while for objective jurists it suggests the manipulation of law as a self-serving policy instrument aptly invoking criticisms of double standards.

Conclusion

The main conclusion reached is that the Charter framework established in 1945 was greatly weakened, if not altogether rendered somewhat anachronistic, by the combined impact of geopolitical opportunism and military circumstances in the wars taking place in Indochina and the Middle East in the decades after World War II. To some extent, it can be asserted that the Charter framework was always unrealistic given the character of a state-centric world order system that included hegemonic actors recognized as such by their right of veto in the UN Security Council, a disempowering reality that became fully evident onlly after the onset of the Cold War. The nature of the conflicts, which consisted of nationalist movements was also not anticipated by the kind of legal order envisioned for the post-World War II, and not able to cope with the normative challenges of asymmetric warfare or wars of national liberation.

There is also an important tension with regard to the orientation toward normative discourse. The West seeks a statist discourse with unrestricted discretion for geopolitical actors, excepting of course, its rivals who are to be held fully accountable by reference to the UN Charter framework. The South, and at the UN General Assembly, is generally favorable to the claims of nationalist movements and anti-colonialist struggles, especially if directed toward liberation from European or Western control. In this regard, this subaltern discourse is supportive of the situation of the Vietnamese and Palestinian national liberation struggles, given concreteness in international law by the wide consensus supporting the inalienable right of self-determination as enshrined in Article 1 of both International Covenants on Human Rights, and more broadly reaffirmed in the influential Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations.[8]

[1] Indeed, the flaunting of international law was so notorious and the failure of the UN to respond so pronounced that the celebrated British philosopher, Bertrand Russell, convened a civil society tribunal charged with assessing unlawful conduct and international crimes. The tribunal was composed of leading public intellectuals, presided over by Jean-Paul Sartre, and producing a full documented set of conclusions relating to U.S. violations of the laws of war. See John Duffett, ed., Against the Crime of Silence: Proceedings of the Russell International War Crimes Tribunal, (1968). See also Tor Krever’s chapter in this volume for a more detailed discussion of the Russell Tribunal.

[2] On the reasons for the US refusal to ratify the Additional Protocols see the chapter by Victor Kattan in this volume.

[3] On the influence of the Vietnam and Arab-Israeli conflicts on the drafting of Additional Protocol 1 see the chapters by Amanda Alexander and Ihab Shalbak and Jessica Whyte in this volume.

[4] On the significance of international law for civil society activism and domestic dissent during the Vietnam War, see the chapter by Madelaine Chiam and Brian Cuddy in this volume.

[5] See John Quigley’s chapter in this volume for a differing legal characterization of responsibility for initiating the 1973 War. See also, John B. Quigley, The Six-Day War and Israeli Self-Defense: Questioning the Legal Basis for Preventive War (Cambridge University Press 2013).

[6] On the development of ‘operational law’ in the U.S. and Israel, which appears to have been developed partly in response to the conflict conditions in Vietnam and the Middle East as well as the new IHL rules of the 1977 Additional Protocols, see the chapter by Craig Jones in this volume.

[7] For further analysis see Brian Cuddy’s chapter in this volume. Both the Gulf of Tonkin and Pleiku attacks were used to justify plans to expand the combat zone in Vietnam to the north of the country, across the international boundary.

[8] General Assembly Resolution 2625, 24 October 1970, A/Res/2625.  

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Quran Desecration and Freedom of Expression

17 Aug

[Prefatory Note: The following post is a revised version of responses to questions addressed to by Javad Arabshirazi, a journalist in Iran, on the issues raised by recent Quran Desecration incidents in Scandinavia. The link to the earlier online publication of this interview is below:https://iqna.ir/en/news/3484743/int%E2%80%99l-law-not-strong-enough-to-stop-affronts-to-holy-sanctities-ex-un-rapporteur ]

Q#1: As you know, over the past month, the Quran has been subject to acts of desecration multiple times in Sweden and Denmark. What is your take on these acts?

As a first line of response, I would interpret these acts of desecration as an aspect of the assault by right-wing extremists on secular democracy in Europe. The fact that Sweden was the principal site of these incidents involving the Quran are significant as Sweden was the previously viewed as the most progressive social democracy in Europe with a generally permissive atmosphere, but not a breeding ground of extremist political movements, although quite conformist in its skepticism about religion. The anti-migrant right (but not the desecrating extremists) have emerged from most recent national elections with great influence, although not currently governing the country.

A more proximate cause seems connected with a far-right reaction of anger and fear to the leverage displayed by the Muslim majority state of Turkey in relation to Sweden’s governmental effort to join NATO almost 75 years after the alliance was formed, an undertaking itself indicative of this Swedish swing to the right. The motivation for these desecration incidents from this perspective should be viewed as directed both at the Swedish Government for its apparent willingness to bargain with Turkey on the issue, tarnishing its right-wing credentials by doing so and at Islamist Turkey encroaching on European cultural space in the sensitive sphere of freedom of expression.

Of course, these explanatory remarks are highly conjectural on my part, but they do seem consistent with the behavioral patterns of these extremist fragments (the most prominent leader of these events was a Danish-Swedish lawyer and political extremist, Rasmus Paludan, head of the Danish Strum Kurs (hardline) political party, managed to win only 1.8% of vote in the last Danish election. This weak electoral showing was not enough to qualify the party for seats in Parliament. In response to his role in these embassy provocations, Turkey has issued an arrest warrant charging Paludan with responsibility for a desecration incident posing security threats to the Turkish Embassy in Stockholm earlier this year.

In general, anti-Islamic extremism is both an internal and international challenge to the European Union, which wants to ensure peace and stability within Europe without giving rise to blowback effects in

Muslim majority countries that take offense. For instance, Qatar, although not targeted in Sweden,  removed all Swedish products from its largest market, Souq Al Baladi, and a number of other states have withdrawn their ambassadors from Sweden as expressions of Islamic solidarity. The EU remains reluctant to challenge by recourse to law freedom of expression standards that prevail in several of its leading member states. Josep Borrell, the EU minister for foreign policy, summed up the official response accurately, although elliptically,  by saying on the subject of Quran desecration, ‘Not everything that is legal is ethical.’

A similar approach was evident in the July vote at the UN Human Rights Council of a resolution condemning the desecration of the Quran by the negative votes of the leading European states (UK, Germany, France, joined by the USA). Although these governments publicly deplored the Quran desecration they refused to support the HRC resolution, which was claimed to be an unbalanced text, endangering freedom of expression, and unacceptably close to prohibiting all forms of blasphemy. The overall vote on the resolution of the 47 HRC members was 28-12 (with 7 abstentions). Most HRC members from Africa, as well as China, supported the resolution. The HRC’s official release described the resolution this way: “The Human Rights Council July 12th adopted a resolution in which it condemned and strongly rejected any advocacy and manifestation of religious hatred, including the recent public and premedicated acts of desecration of the Holy Quran.” The body of the resolution called upon states to enact national laws reflecting these sentiments, but overall it seems unlikely to have the slightest effect on the 12 states voting against the resolution.

Q#2: How can we stop such acts and help promote interfaith respect and peaceful coexistence among followers of various faiths?

There is a paradox present: The harder efforts are made to stop this highly objectionable behavior by Islamophobic and right-wing extremists groups the greater is their temptation to persist in such action. In the short-term what these groups seek is public recognition and media attention, not power or authority. These are displays of symbolic politics at its worst as it champions ethno-religious supremacy as the alternative to coexistence with dark and evil forces. Quran desecration also serves as a recruiting strategy that attracts those deeply dissatisfied with their lives and receptive to blaming the Islamic other.

And then there is counter-pressures from dogmatic secularists not to alter behavior in response to outcries from foreign religious sources. Such secularists, whether openly or not, seek to insulate from governmental interference anti-religious speech and symbolic acts, however hurtful, even when coming from extremist sources. In the current historical setting of Europe, desecration acts especially those directed at theocratically governed states such as Iran, and more recently, Turkey, enjoy a high level of silent approval from a hostile populace. What is often criminalized and harshly punished as blasphemy in some Muslim majority states, for instance, Pakistan or Bangladesh, is celebrated as protected speech in the secular West.

Inter-faith dialogue if conducted at high enough levels at least promotes a better understanding of cultural and religious differences among countries and civilizations, but the root cause is ethnically and religiously driven extremism, which at its worst sets the stage for autocratic, and even fascist styles of governance, which happened in post-World War I Europe. A further step in moderating such tensions is to mount a major international effort to improve the material conditions in the least developed countries that would have an almost automatic effect of discouraging massive migratory flows now arising from impoverished societies, conflict zones, and climate disaster, disproportionately situated in sub-Saharan Africa, the Middle East, and Latin America. The political resonance of Quran burning is emotionally linked for many in the West to the backlash against these patterns of migrating peoples fleeing from alien cultural traditions for economic, political, and ecological reasons. We should appreciate that most people do not leave their homelands unless national living conditions become intolerable and more opportunities seem worth pursuing elsewhere.

With the planet challenged currently by ecological and geopolitical threats to species survival, only ways of acting on a global scale to improve procedures of conflict resolution and inter-governmental cooperation can have any chance of weakening incentives of extremists and those most acutely alienated to carry out attacks against scapegoated religious and ethnic minorities.      

Q#3: Who or what group do you think is behind the affronts? Or who or what group benefits from them?

 As suggested throughout, these affronts to Islam emanate from the extreme right by individuals drawn to fascist beliefs and practices as historically contextualized in relation to time and place. For Hitler and Naziism it was Jews as a people, in the United States those seeking to restore white supremacy it is African Americans, and after 9/11 attacks in 2001 it was Islam while for Donald Trump it has become migrants, especially those entering the country unlawfully.

Extremists tend to flourish in national settings where their acts, while superficially condemned, are congruent with the beliefs and biases of large parts of the population. I feel the danger in Europe arises from the extreme right gaining further political strength through such acts of demonization. The rise of secular populism and its autocratic leaders around the world has produced the suppression of religious freedoms and political participation of Muslims even in many countries within the Arab world, and most pronouncedly in Modi’s India with its drive to achieve Hindu supremacy and even in Myanmar where the military leadership in alliance with the Buddhist majority has ruthlessly suppressed Muslims in the federal state of Rakhine where the Muslim minority, the Rohingya people mostly live.

Q#4: Swedish and Danish officials have deplored the desecration of the Quran, saying, however, that they cannot prevent it under constitutional laws protecting freedom of speech. What are your thoughts on this as an international lawyer?         

Although there is some support for the view that desecration of the Quran and other holy books violate international law, and a July 25 UN General Assembly Resolution drafted by Morocco and adopted by consensus so declares, it is not regarded by most governments in the West as obligatory and would encounter strong resistance if implemented in national criminal codes and operational practices. The emphasis of the resolution is suggested by these words, deploring ”all acts of violence against persons on the basis of their religion or belief, as well as any such acts directed against their religious symbols, holy books, homes, businesses, properties, schools, cultural centers or places of worship, as well as all attacks on and in religious places, sites and shrines in violation of international law.”

There is an underlying jurisprudential problem that is rarely discussed. In the West, meaning in Western Europe and North America, the separation of church and state followed upon decades of religious warfare within Christianity. From the Peace of Westphalia in 1648 onwards until the present the dominant political tradition in various formats has embraced the separation of church and state, including seeking to make the legal order autonomous, that is, resistant to overt religious oversight and direct interference. To be sure, there have been inconsistencies on the level of practice, especially on such symbolic issues as the reproductive rights of women and the character of conscientious objection to obligatory military service. In contrast, it is my understanding that Islamic values reject such a separation, believeing strongly that the law should reflect the precepts of religious guidance or oversight.

In any meaningful sense, I do not think international law is strong enough in relation to these issues at the interface of human rights, sovereign rights, and the sanctity of religious values and practice to impact on behavior at the level of nation states. Perhaps, the struggles for species survival will build enough support for trans-civilizational unity on behalf of the global public good, which has been put forward by some, including myself, as a unique instance of ‘a necessary utopia.’ In the interim, there will be clashes of the sort embedded in diverse ways of handling the desecration of the Quran, the scriptures of other faiths, and holy sites and objects generally. In fashioning responses, we must be careful not to fuel the passions and dark ambitions of such extremists by giving them media feasts that promote their dark designs and feed their sense of self-importance..

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Quran Burning interview/article by Rabia Iclal Turan, Anadalou Agency, Turkey

8 Aug

 https://www.aa.com.tr/en/europe/quran-burnings-assertion-of-broader-bias-against-immigrants-in-europe-ex-un-rapporteur/2962817

EUROPE

2 DAYS AGO

Quran burnings point to broader anti-immigrant bias: former UN Rapporteur

A surge in Quran burnings by far-right extremists triggers concern over anti-immigrant sentiment and freedom of expression, with a former UN special rapporteur calling it ‘an assertion of a broader anti-immigrant, anti-non-European right-wing bias’.

There is a ‘strong case’ for prohibition of such acts that ‘serve no possible constructive purpose,’ says Richard Falk / Photo: Reuters Archive.
REUTERS ARCHIVEThere is a ‘strong case’ for prohibition of such acts that ‘serve no possible constructive purpose,’ says Richard Falk / Photo: Reuters Archive.

A recent wave of the desecrating of the Quran, Islam’s holiest book in Sweden and Denmark is “an assertion of a broader anti-immigrant, anti-non-European right-wing bias that has grown to be quite politically strong,” according to a former UN special rapporteur.

“There’s no legitimate purpose by allowing groups to burn the holy scriptures of another religious faith,” Richard Falk, a professor emeritus of international law at Princeton University, said in a video interview.

“It seems to me to serve…no possible constructive purpose. And I think there is a strong case for (such acts to be) prohibited.”

In recent months, far-right extremist groups have desecrated and burnt several copies of the Quran in Denmark and neighboring Sweden, drawing fierce condemnation from Muslims around the world and calls for measures to stop such acts.

The UN General Assembly adopted a resolution on July 25 that terms all acts of violence against holy books a violation of international law.

‘Is it hate speech?’

About the line between freedom of expression and actions that may be considered offensive to religious beliefs, Falk said they could fall under the umbrella of “free speech” but could be linked to a “formation of violent behaviour” in some cases.

On the question of limits to freedom of speech in cases where, for instance, it threatens security, he said: “Yes, it could be (limited) in certain contexts if it could be argued to be a threat to security”.

He said various European countries “have a less permissive view (than the US) of freedom of speech and are more concerned with prohibition of hate crime”.

“Therefore, this kind of act could be prohibited under the broad prohibition against hate speech, which exists, I know, in the UK and Germany, for instance,” he said, adding that the same may not be the case under Scandinavian laws.

Quran burnings could be “alleged to be hate speech,” said Falk, but it also depends on the precedent within a particular country or region.

Falk said that countries could pass laws to prevent attacks on holy books, emphasising that they “would have considerable international support at this point.”

“Because there is a recent UN resolution … that does say it’s contrary to international law, to burn or otherwise destroy,” he said. 

Threat of violence

Muslims around the world are concerned that these increasing attacks on the Quran could lead to more violence against the community itself.

With book burnings having been one of the main Nazi campaigns in the lead-up to the Holocaust, Falk warned that “democratic societies have to be vigilant against the repetition of this kind of genocidal behaviour because it obviously can be repeated.”

“It has, to a certain extent, been repeated recently in Myanmar, where the Muslim minority … was subjected to what many observers have defined as genocidal,” he said, referring to the plight of the Rohingya community.

Innovative Regional Dialogue: Iran, Iraq, and Six Gulf Countries

7 Aug

[Prefatory Note: The post below is a modified text of an August 2, 2023 interview by the Iranian journalist, Javad Heiran-Nia. The text containing my responses was published in the periodical, Tahrir Bazaar [link: < https://www.tahlilbazaar.com/news/235594/Professor-Falk-China-s-influence-in-the-Persian-Gulf-has-worried>] The focus is upon the regional dialogue scheduled for September 2023 between Iran and Iraq and the six members of the Gulf Cooperation Council (GCC), formed in 1981. It is a notable recent breakthrough by way of a new series of diplomatic initiatives to replace tensions with stability in the Middle East, and in the process gaining political independence from U.S./Israel hegemony. This development also reflects the increased involvement of China in the region, most strongly evident in promoting normalization of relations between Iran and Saudi Arabia and by creating the political space to give Saudi Arabia and OPEC the self-confidence needed to set oil production and pricing on the basis of national interests rather than in response to international pressures exerted by oil-importing countries.]    


1. It is planned to hold a meeting this September at the initiative of the Secretary General of the United Nations with the participation of the foreign ministers of eight countries of Iran and Iraq and GCC members. The Secretary General’s initiative for regional dialogue is included in UN Security Council Resolution 598, which led to the end of the Iran-Iraq war. What is your assessment of this meeting?

It is notable that SC Res. 598 adopted in 1987 has not yet been implemented more than 35 years later. In view of the intervening conflicts, especially the Gulf War in 1991 and the US/UK in 2003 attack on Iraq, which was undertaken without UN authorization and in violation of the UN Charter this long delay is hardly surprising. Violations included recourse to international sanctions, non-defensive force, ‘shock and awe’ tactics. regime-changing intervention, prolonged occupation, denial of sovereign rights, failed state-building, it is notable that this old conflict resolution and war prevention resolution is being revived in this new serious, seemingly stability-seeking spirit. At this stage it is difficult to anticipate what will result from the September meeting because of the diverse motivations of the direct participants and attitudes of such leading influential international actors as the U.S. and China have not been disclosed. The willingness of the eight participating states to agree to hold an exploratory regional dialogue that includes Iran and Iraq is itself an encouraging development, suggesting that Israel, as well as the United States’ has less regional leverage in 2023 than previously for several interrelated reasons.

It is worthy of comment that the forthcoming regional dialogue is structured in a way that brings Iran and Iraq into conversation with Gulf countries rather than the entire Arab Middle East or the region as a whole. Syria, Egypt, Lebanon, Palestine, Yemen have been excluded (along with Israel), and presumably were never invited. This diplomatic framework with its ad hoc sponsorship can also be understood as substituting the regional and sub-regional actors for the U.S. and even China as a preferred path to realizing a ‘comprehensive, just, honorable, and durable’ peace specified long ago in this Security Council initiative that was original a response to the long destructive war between Iraq and Iran. What lies behind such an extensive wording of peaceful relations in the contemporary setting has not been publicly disclosed at this point. It will become clearer in the course of the conference in September provided transcripts of the meetings are released or at least. a concluding Declaration is issued, the assembled foreign ministers meet with the media before and after the event, and most significantly agree to meet again or to keep meeting periodically.

The fact that it is a meeting of foreign ministers, and neither lower-level national representatives nor higher-level heads of state, suggests a rather strong commitment to the event by the participating governments. At the same time, there is no expectation that this single dialogue event,  no matter how successful the meeting and upbeat the Declaration, will itself produce immediate or spectacular results. It is best conceived as a promising beginning of a long overdue process of reconciliation and coexistence.

Iran stands to gain most from the event, and an ensuing process, as it is definitely a step toward reintegration into the normal politics and economics of the region and away from continued isolation. Saudi Arabia may also gain increased credibility for its recent efforts to pursue a more independent regional diplomacy, which at times has departed rather pointedly from the policies preferred by the U.S. Or maybe this event is favored because it somewhat balances and offsets Riyadh’s long rumored move toward a normalization of its relations with Israel. At this point, such conjectures should not be taken too seriously. The fact that the conference is taking place at all is a hopeful breakthrough considering the conflictual atmosphere of recent decades in the Middle East, particularly in interactions with Iran. A major unknown involves the extent to which non-participating regional and extra-regional actors will exert obstruct proceedings from behind the scenes.

2. After the improvement of the relationship between Iran and Saudi Arabia, improvement in the relations between Iran and other Arab countries can be seen. To what extent can creating a mechanism for regional dialogue be successful in such an atmosphere?

This UN sponsored conference seems definitely to parallel recent inter-governmental diplomacy that began normalizing Iran’s relationship with the Arab World after decades of tension and hostile engagement as in the course of the Syrian War that began in 2011. The September conference can also be contextualized in relation to declining U.S. hegemonic ambitions, capabilities, and strategic priorities in the region, and a slowly shifting geographic emphasis on attaining stability. A further consideration is the interplay between Israel’s search for diplomatic normalcy with Saudi Arabia and other Arab countries, and this Iran/Iraq/Gulf move toward normalization of relations as a foundation for achieving internal cohesion and stability.

Also relevant is the rise of other regional concerns on the part of the U.S. and others, including non-political challenges within the region encouraging replacing conflictual relations with. cooperative ones on a priority basis. Severe stresses are already being experienced throughout the Middle attributable to severe global warming, which has brought record heat impairing health and even threatening future livability within the region. Responsible statecraft of regional actors needs more than ever to focus its problem-solving capabilities on these new threats to wellbeing arising out of rising instabilities between modernizing economies and the natural habitat. In this sense, militarism and warfare become expensive distractions from too longed delayed efforts to achieve national and human security given the greatly altered ecological and political conditions in the contemporary world.

3. Following the reduction of America’s presence in the region, diplomacy in the region regarding important security issues for the countries of the region has increased. Do you evaluate this process as tactical or strategic?

It seems to me that caution is in order about present and near future regional roles of major non-Middle East actors. Not only are political differences being reexamined under present conditions, but also the prospect of achieving peaceful coexistence as between the Gulf monarchies and the Islamic Republic of Iran, despite their continued adherence to antagonistic traditions of Islamic theology and practice. Another uncertainty concerns whether recent American preoccupations elsewhere in the world, especially Ukraine and Taiwan, have given Saudi leaders the confidence needed to keep engaging with Iran and others beyond its borders giving priority to its national interests. Also relevant is whether prolonged suffering from regional hostility and an international sanctions regime has increased Iran’s interest in the potential benefits of dialogue, especially if it is allowed to be a stepping-stone toward reconciliation and relations based on common interests and mutual benefits. Both Iran and Saudi Arabia have likely been negatively affected by their antagonistic involvements in the political turmoil in Yemen, which may partly underlie their joint willingness to substitute stability for conflict as the cornerstone of their future national security.

4. China’s participation in the region – although it does not have a wide military and security aspect at the moment – what effect will it have on regional trends?

The increased diplomatic activism of China contrasts with the essentially militarized diplomacy practiced previously by the United States in the region often openly in support of Saudi and Israeli goals, as in Yemen or with respect to the Palestinian struggle for basic rights. I believe China’s surprisingly skillful effort to achieve a dialogue between Riyadh and Tehran has created confusion in Washington. Should the U.S. attempt to reassert its hegemonic ambitions through coercive diplomacy or should it pursue its own version of normalizing and stability-oriented diplomacy in the region? To what extent is China motivated by its concerns relating to energy security and assurances of access to Gulf oil? And to what extent is China sending the U.S. Government a message to the effect if it intrudes on the traditional Indo-Pacific preoccupations of China, then China will reciprocate by intruding in areas where there has been a strong U.S. presence.

As I consider the Ukraine War to be partly about geopolitical alignments after the end of the Cold War in the early 1990s, much will depend on whether global security maintains its unipolar structure that emerged after the Soviet implosion in 1992 or reverts to some new type of bipolarity (perhaps China/Russia v. NATO/India) or transitions to forms of multipolarity that seek a greater reliance on cooperative global problem-solving for the sake of national, and even more, human security.

5. To what extent can commercial relation and economic interdependency be used for regional dialogues?

I believe that robust commercial relations under most conditions produce positive forms of economic interdependency, which in turn strengthens processes of conflict-resolving dialogue. Such a momentum also builds the political foundations for increases in trade, investment, tourism, cultural exchanges in the common interest, yielding mutual benefits. And yet such economic dimensions cannot be assumed as necessarily having these positive effects. It depends on the perceive balancing of complex interests and often contradictory perceptions, as well as the presence or absence of geopolitical pressures. It is difficult to generalize about such matter, which always depend on contextual factors, which are constantly in flux.

For reasons suggested earlier, regional and global developments currently support stabilizing diplomacy and the expansion of mutually beneficial economic relations among countries that have spent the last half century or more in unproductive, costly, dangerous conflict. The impact of such developments on relations with Israel, especially considering that the current internal ferment in that country remains a great, yet relevant, unknown. If the extremist Netanyahu government manages to hold onto power it may try to distract attention from internal confrontations by restoring national unity by recourse to actions that deliberately increase regional tensions, especially with Iran, backed by inflammatory claims that Israel’s national security is at stake. It is questionable whether this old diversionary game will work under present conditions, but moves in that direction could be dangerous nevertheless. Also, dangerous and posing regional and extra-regional challenges would be the implementation of annexationist and one-state visions on the part of the apartheid, settler colonial, Jewish exclusionary state of Israel.  

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