[Prefatory Note: The essay below is a modified version of the 2018 Annual Lecture of the International State Crime Initiative (ISCI) of Queen Mary’s University London, given on March 22 of that year. Its original title was “Geopolitical Crimes: A Preliminary Jurisprudential Proposal.” The text of the lecture has been further revised since publication in the Spring 2019 issue of the Journal of State Crime. Its major premise is that international criminal law has developed a framework for judging the criminal conduct of states with respect to armed conflict and in the relations of state/society relations, but is silent about even the most severe crimes of diplomacy. It is these ‘geopolitical crimes’ that are more responsible for inflicting mass suffering on civilian populations than are most of the forms of international behavior currently criminalized. I am aware that criminalizing acts of diplomacy is a revolutionary idea, but no less for that, deserving of commentary and debate.]
GEOPOLITICAL CRIMES: A REVOLUTIONARY PROPOSAL
Points of Departure
When we think about international relations in a general way we typically presuppose a state-centric world order. I find this misleading. Actually, there are two intersecting and overlapping systems of rules and diplomatic protocols that are operative in international relations: a juridicalsystem linking sovereign states on the basis of equality before the law; and a geopoliticalsystem linking dominant states regionally and globally with other states on the basis of inequalities in power, scale, wealth and status. It is convenient to consider the juridical system as horizontal and the geopolitical system as vertical so long as this distinction is understood as a metaphor to distinguish hierarchical from non-hierarchical relations that are operative in international politics.
The United Nations (UN) embodies this structural dualism that pervades world order, and is hierarchical: the subordinate horizontal organizational axis based on juridical equality as exhibited by membership procedures and by the recommendatory authority of the General Assembly. This compares to the supervening vertical axis as embodied in the Security Council in which the permanent membership of the five states considered victors in World War II enjoy a right of veto, and possess an exclusive authority vested in the Security Council to make decisions that are theoretically enforceable.
My purpose in these remarks is to extend the notion of international state crime from its familiar horizontal axis, and suggest the significance of state crime on the vertical axis, which I will call “Geopolitical Crime”. I believe that this category of criminality has been “overlooked” in international criminal law (ICL) despite its responsibility for massive human suffering, and directly linked to some of the most serious deficiencies and unresolved turmoil in contemporary world order. Perhaps, overlooked is not the best word to describe the malign neglect. Maybe “blocked” is more accurate, as consistent with successful efforts of geopolitical actors through the centuries to evade all forms of accountability under international law for state crime unless adversary leaders are. targeted by the winners in major wars.
Of course, I am mindful of the fact that Geopolitical Crimes have not yet been formally or conceptually delimited, and are not even conceptually delimited in aspirational language at the present time, and are likely to never be accepted by the current breed of juridical gatekeepers as a valid legal category. Nevertheless, I believe that the identification and articulation of Geopolitical Crime is of pedagogical value in understanding the causal antecedents of some of the worst features of global politics, as well as of normative value in identifying what kinds of behavior in certain diplomatic settings are likely to produce future harm and by so identifying, encourage more mindful statecraft in the future.
At the outset it needs to be appreciated that international criminal law (ICL) as part of the horizontal/vertical normative mix is currently a very flawed system of law: in such crucial areas as humanitarian intervention, criminal accountability, human rights and the International Criminal Court (ICC), the application of ICL exhibits double standards, which has been producing a pattern of increasing accountability for the weak and vulnerable, and almost total impunity for the rich and geopolitically powerful and politically insulated. The result is a form of “liberal legality” that is structure blind when it comes to holding geopolitical actors to the same standards of criminal accountability as other sovereign states.
My intention is to put forward in an exploratory and tentative spirit a somewhat comprehensive proposal to imagine and delimit two closely related behavior patterns that deserve to be properly classified as Crimes Against Humanity, but are not now so treated. I am provisionally calling these “crimes” “Geopolitical Crimes of War” and “Geopolitical Crimes of Peace”.
My purpose is to identify patterns of deliberate behavior by leading governments in global or regional contexts that inflict severe harm on the individual and collective wellbeing of people, and do so knowingly, willfully, or with extreme negligence, especially in the contexts of war and post-war “peace diplomacy”. Actually, I would be receptive to suggestions of a more suitable label for these patterns of behavior than “Geopolitical Crime”, but for now will stick with this terminology. These proposed “crimes” have yet to be acknowledged as such, much less formally prohibited by treaty or practice. In this sense, this proposal for their inclusion in a jurisprudence fit for humanity is ‘revolutionary.’
On one level, I realize that I may be casting myself in the role of a latter day Don Quixote tilting at the windmills of an ideal legal order rather as did the erstwhile nobleman of La Mancha as he yearned for the gallantry of knights of old. I am sensitive to the fact that delimiting the behavior of leading states as a Geopolitical Crime may strike many persons as a wildly romantic or utopian non-starter, if not seen more destructively, as an effort to subvert the authority of liberal legality by highlighting its jurisprudential deficiencies.
My central critique of ICL is its grant of a free pass or exemption to geopolitical actors and their close allies, which has caused so much harm in the past, continuing into the present, and threatens to do even greater harm in the future. It can be argued that even if this is the case, why call attention to the weakness of ICL by proposing a form of criminalization that is unlikely to ever happen, and if it does, will never be implemented. The experience of the ICC makes these low expectations seem realistic. Nevertheless, while aware of these concerns, I believe there are several reasons that make it worthwhile to delimit Geopolitical Crimes.
First of all, to discuss what I propose to identify as “Geopolitical Crimes” by pointing to historical examples helps us consider why many things have gone so badly wrong in international relations over the course of the last hundred years at the cost of millions of lives. I am well aware that counterfactual narratives of history are inevitably problematic as we can never know what might have happened had we chosen “the road not taken” to recall the motif of Robert Frost’s famous poem.
Secondly, aspirational norms of ICL can become meaningful for civil society actors, even if ignored or rejected by the diplomacy of geopolitical actors (e.g. BAN Treaty – UN Treaty on the Prohibition of Nuclear Weapons, New York, United Nations General Assembly 2017). Delimiting Geopolitical Crimes seeks to fill serious world order and international law gaps created by destructive and intentional policies and practices of geopolitical actors. Raising an awareness of such gaps also helps us understand the degree to which the UN, including its subsidiary organs, is similarly constrained when seeking to fulfil its substantive undertakings as set forth in the Preamble to the UN Charter.
Indeed, civil society tribunals, ever since the Russell Tribunal (International War Crimes Tribunal, Stockholm/Roskilde, 1967) have examined allegations of unacknowledged war crimes of geopolitical actors, including Crimes Against Humanity, by the U.S. in Vietnam, back in 1966 to 1967. Such an undertaking was dismissed and denigrated at the time by mainstream thinking as an absurdly misguided challenge to the behavior of a geopolitical giant in the midst of an aggressive war. In fact, the Vietnam War was the kind of war that international criminal law in the aftermath of World War II had no trouble classifying as a Crime Against Peace at the Nuremberg Tribunal when addressing the behavior of a defeated Axis power.
Despite these efforts to discredit the Russell Tribunal its inquiries and testimonies produced valuable commentaries on the Vietnam War that would not otherwise be available to us. In this regard, in a manner similar to the government-organized war crimes tribunals after World War II, the main value of such civil society initiatives is to narrate on the basis of substantial evidence the wrongdoings of the defendants, whose punishment is of secondary importance, despite these individuals having done terrible things on behalf of a particular state.
I was involved in the Iraq War Tribunal that in 2005 brought to Istanbul before a jury composed of internationally known. moral authority figures, Iraqi testimonies of combat experiences and an array of international experts to record the violations of international law and of the UN Charter on the part of the United States and United Kingdom. In the end, in a manner no other institutional actor could do, this civil society initiative documented and supplied moral and legal reasoning as to why this war should be regarded as a criminal enterprise.
Part of my argument here is that the failure to delimit “Geopolitical Crimes” deprives us of a truer understanding of what went wrong and was wrong, particularly in the course of and the aftermath of World War I and II, and more recently in the responses to the 9/11 attacks on the United States. The wrongfulness in these instances arises from the manner in which the war and peace diplomacy was used to demonize the adversary and exonerate the victor, or in the 9/11 instance, to embolden a wounded and traumatized superpower to take steps previously treated as prohibited by international law. Considering Geopolitical Crimes is also a matter of attentiveness to the historical antecedents of conflict and political extremism that are habitually misrepresented by propaganda and one-sided interpretations, if treated at all.
The third justification for this line of prescriptive thinking is essentially pedagogical to influence normative discourse in relation to war and peace, suggesting that to ignore geopolitical wrongdoing is to overlook one of the major causes of conflict, chaos, injustice and extremism in the world order experience of the last hundred or more years. Jurisprudential innovations of the kind recommended here has taken place in the past. Raphael Lemkin is often heralded as the person who single-handedly invented the word “genocide” in 1944, and finally produced its acceptance by the powers that be, leading to its incorporation in the authoritative Convention on the Prevention and Punishment of the Crime of Genocide in New York (United Nations General Assembly 1951).
In the course of the Vietnam War, in response to the conduct of environmental warfare, a biologist at Yale, Arthur Galston, came up with the term “ecocide”, an analogue to genocide, but in relation to natural surroundings. I later drafted a proposed Ecocide Convention that I hoped at the time could and should become part of international criminal law (see Falk 1973). Unfortunately, unlike genocide, ecocide has not yet been incorporated into ICL, at least never at the inter-governmental level, although civil society actors are active in promoting ecocide as an international crime that should be implemented by enforcement. In this regard, the idea of ecocide as a crime has been widely accepted in several influential civil society settings, and has become part of the progressive public discourse relating human activity to environmental harm.
And fourth and finally, the articulation of geopolitical crimes, as crimes, might induce greater care on the part of some policy planners and governmental leaders in avoiding harmful practices in the future, even if such decision makers continue to deny any legal obligation to do so. The nuclear taboo is an example of a tradition of non-use of nuclear weapons that in part stems from the horrific realization of the atomic antecedent of these weapons in the closing days of World War II. The normative discourse reinforced this taboo, most notably by General Assembly Resolutions (United Nations General Assembly 1946), the Shimoda Case decided by a (Tokyo District Court 1962) and by a 1996 Advisory Opinion of the International Court of Justice (International Criminal Court 1996). We might describe such a taboo as “informal law” that if backed by practical wisdom can lead to impressive levels of compliance, sometimes higher than what is achieved by formal law, even in a treaty form, especially if compliance is geopolitically inconvenient (Article VI, United Nations Treaty on the Non-Proliferation of Nuclear Weapons, New York, United Nations 1968). Beyond this, if such taboos are violated, the perpetrators might appropriately be deemed responsible for criminal behavior if what is done is widely regarded as Geopolitical Crimes, which might have the effect of expanding the jurisprudential and pedagogical influence of civil society tribunals.
Delimiting “Geopolitical Crimes”: Jurisprudential Clarifications and Historical Illustrations
It is appropriate to consider Geopolitical Crimes from a jurisprudential perspective, and then provide illustrative cases. I will choose the impact Geopolical Crimes on the practices and policies imposed on the Middle East in the peace diplomacy of the victors after World War I. I will also make brief reference to the Geopolitical Crimes of War and of Peace associated with the conduct of World War II and the conditions of peace established subsequent to the war, especially the ambiguous legacies of the Nuremberg and Tokyo War Crimes Trials. I would also point to early initiatives of the United Nations, which bears serious unacknowledged responsibility for the ordeals of the Palestinian people and the failure over the course of decades to find a sustainable peace based on the respective rights of these two long embattled peoples.
These various historical circumstances present complicated and controversial contexts, and as I am suggesting, my commentaries at this point are more intended as a means to initiate discussion than a claim to achieve an authoritative interpretation of such multiply contested and layered historical events.
An alternative illustrative situation that qualifies as geopolitical criminality could have been provided by offering a critical account of punitive restrictions imposed on German sovereignty by the Versailles Treaty in the form of reparations and demilitarization. It is arguable that this diplomacy constituted Geopolitical Crimes of gross negligence contributing to the rise of Hitler and Nazism. It is significant, suggesting an informal learning process, that peace diplomacy after World War II deliberately avoided the imposition of a punitive peace upon the defeated Axis Powers, although these defeated states and their leaders were guilty of a far worse path of criminality than what the countries defeated in World War I had done.
More recently, in the context of the First Gulf War in 1992, the victorious coalition again imposed a punitive peace on Iraq in the form of economic sanctions that pro- duced catastrophic predictable losses of civilian lives, including among children (see Beres 1992). Why these punitive and indiscriminate sanctions were imposed remains not entirely clear. Partly it reflected a substitute or compensatory course of action for the failure of the victorious coalition to pursue all out political victory of the sort that ended both world wars. The post-war sanctions imposed on Iraq can be thought of as compromise between pushing for regime change in Baghdad and the grudging acceptance of the government of Saddam Hussein as legitimate. The Geopolitical Crime arises from the failure to take steps to avoid causing suffering to the civilian population of Iraq. To target civilians is an instance of state terror that should be treated as an international crime.
Let me first try to describe more adequately what I mean by “Geopolitical Crimes”. My reference is to deliberate or grossly negligent undertakings by leading governments representing sovereign states or international institutions that violate core norms of international law, diplomatic customary practices and the protocols of international relations, and fundamental principles of international ethics. Often, the most serious harm done by these violations results from longer term dislocations that should reasonably have been foreseen. If this is so, it provides a rationale for imposing legal responsibility as reasonable and appropriate, especially with an eye towards inhibiting the repetition of comparable behavior in the future. It could be thought of as ‘a precautionary principle’ for diplomats. For example, if the imposition of “punitive peace” had been rendered unlawful in light of the World War I experience it might have exerted some deterrent impact on imposed harsh conditions on Iraq in 1992.
Historically, there is a tendency for the victors in major wars to have opportunities to alter international relations according to their values, interests and fears. This was certainly true of the outcomes of the major wars involving Europe (see Beres 1992). However, this is not always the case. Sometimes Geopolitical Crimes have immediate, intended and foreseeable effects. Two obvious recent examples: the 2017 blockade and related steps coercively imposed on Qatar in response to its failure to meet the 13 Demands made by a coalition of members of the Gulf Cooperation Council plus Egypt (see Falk 2018). The Geopolitical Crime present centers on the unlawful intrusion on Qatari sovereignty, with intended harm to public and private sector activities, as associated with the impact of the 13 unreasonable demands as reinforced by administrative decrees and blockades.
My second example is President Trump’s thrashing (Borger et al. 2018) and subsequent repudiation of the P5 + 1 Agreement on Iran’s Nuclear Program (Joint Comprehensive Plan of Action 2015), a course of action that makes a destructive and unlawful war in the Middle East far more likely, and its threat, a certainty.
It is, of course, entirely reasonable to argue that some alleged “Geopolitical Crimes” produced bad outcomes that could not have been reasonably anticipated or that the political actors involved had been motivated at the time by good faith, conventional wisdom and political realism. One important context for geopolitical criminality, as earlier suggested, is in post-conflict peace diplomacy where the victor calls the shots.
For instance, at the Nuremberg and Tokyo trials of surviving German and Japanese military and political leaders, the criminal activities of the victors were exempted from scrutiny, and could not be mentioned by the defense, however serious and relevant. In partial deference to such a constraint on prosecution, German and Japanese defendants were not charged with crimes that the Allied countries had committed. This selectivity was extensively critiqued as “Victors’ Justice” (see Minear 1971). More specifically, in light of the Allied “saturation” bombing of German cities, the German, Italian and Japanese bombing of civilian populations was not among the crimes alleged. Such forbearance in the manner of victors’ justice not only exempted the practice from accountability in the war crimes tribunals, it unwittingly normalized for the future saturation bombing as beyond the reach of international law.
This double effect was particularly striking in light of the pre-war denunciations of
Germany, Italy, and Japan for the “inhuman barbarism” of the bombing of cities in their military operations, which of course were far smaller. It led Franklin Delano Roosevelt to address an “urgent appeal to every Government which may be in hostilities to publicly affirm its determination that its armed forces shall in no event, and under no circumstances, under- take the bombardment from the air of civilian populations” (quoted in Franklin 2018; reactions to German bombing of Guernica in Spain, Japan in Manchuria, Italy in Ethiopia. No effort to condemn at Nuremberg & Tokyo in view of Allied practice, also McNamara’s acknowledgement to LeMay in The Fog of War, [2003], that if war lost, they would likely be prosecuted as war criminals.). What seemed “inhuman barbarism” when done by the enemy became a matter of “military necessity” when done by the victorious side in the course of the war, despite being done on a far larger and more destructive scale. Such an exemption from legal accountability offered the West de facto justifications for recourse to massive bombing tactics in the Korean War (1950– 1952) and the Vietnam War (1962–1975) that cost several million civilian lives.
In partial acknowledgement of this failure to hold the strong responsible for compliance with international law in a manner equivalent to those formally charged, the American prosecutor at Nuremberg, Justice Jackson, famously declared in his closing statement, “We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.” Robert H. Jackson’s (1945) belief that Nuremberg would generate new standards of international behavior applicable to the victors quickly turned out to be wishful thinking. It is of the essence of being a geopolitical actor to refuse as a matter of principle, the discipline of legal or moral restraint. Each of the states that pre- vailed in World War II subsequently committed acts violating the Nuremberg findings without incurring any serious normative backlash, but worse than this, their wrongdoing in this prior war established precedents that so normalized the behavior as to place outside the orbit of legal accountability.
Often, the complexities, subtleties and secrecy surrounding diplomacy make it virtually impossible to establish the mental state of mind of the perpetrators of Geopolitical Crimes. One notable exception is an exchange on the U.S. news pro- gram, “60 Minutes”, between Lesley Stahl, TV journalist, and Madeline Albright, on 12 May 1996, then the U.S. Secretary of State, on the impact of harsh sanctions imposed on Iraq after the Gulf War. Lesley Stahl asked the American official, “(w)e have heard that half a million children have died. I mean, that’s more children than died in Hiroshima. And, you know, is the price worth it?” and Albright replied “we think the price is worth it.” Although this chilling response was later partially retracted by Albright, it offers a striking example of a high government official endorsing the indiscriminate targeting of civilians by way of a sanctions policy framed to punish the Iraqi regime for its Kuwait attack and as a warning to Iraq and others to remain within its borders in the future of face the geopolitical fury of the United States.
There are, then, two complementary tendencies that bear on my inquiry into the interplay of state crime and world order: the first, is to obscure crimes of state by manipulating the public discourse in misleading ways; Israel has been very effectively done this with respect to the victimization of the Palestinian people in the course of implementing the Zionist project; e.g. persuading the U.S. Government to describe the unlawful Israeli settlements in Occupied Palestine as “unhelpful” rather than “criminal”; the second, is to treat as “crimes” morally and politically distasteful past acts, which were not crimes at the time of their commission, which is my main theme in these remarks, that is, retrospectively criminalizing past behavior. In the first case, the crimes of state are denied or obscured, while in the second instance past governmental wrongdoing is irresponsibly criminalized.
A similar issue is presented by the frequent assertion that indigenous peoples in various settings in the Western Hemisphere and elsewhere were victims of genocide perpetrated by settler communities, generally backed by colonial powers. Again, there is an inevitable normative ambiguity present – the behavior can be properly castigated as “genocide” if this is understood to be a moral and political condemnation, but the implication that such past behavior was also “a crime” in a legal sense is misleading absent an acceptance of natural law thinking based on notions of intrinsic wrong. This would itself be a rather strange jurisprudential move in a modern context where valid international law is based on the consent, or secondarily on the pronouncement of respected civil society organizations..
Nuremberg never directly addressed the criminality of the Holocaust as the most systematic and massive form of genocide out of this respect for “legalism”. It should be remembered that Stalin and Churchill favored summarily executing Nazi war criminals without the ritual of a trial, enabling the moral and political condemnation to be clear and absolute, as well as focused on the core evil without the distracting irrelevance of a long trial. The American view prevailed but at the previously discussed heavy jurisprudential cost of legalizing and normalizing civilian bombing, which had previously been viewed as falling outside the scope of acceptable behavior (see Bruce 2018),
There was a notable progression from strategic bombing to saturation bombing as Allied tactics against Germany intensified in the latter stages of the European theatre of combat. In relation to Japan’s case, this refusal to apply legal standards of accountability to both sides in the war had the momentous side effect of legalizing the atomic bomb for the future, which set the stage for the legalization of nuclear weaponry. (Nuclear weapons are geopolitically legal, while being considered juridically unlawful, at least under most circumstances. (See International Court of Justice, Advisory Opinion, 1996.) This unfortunate byproduct of the war crimes approach was further distorted by the NPT approach, which allows nuclear weapons states to possess, deploy, threaten, and use, while denying even pre-acquisition development options to other sovereign states. (After waiting for disarmament over the course of decades the patience of non-nuclear states and civil society has begun to run out; (See United Nations Treaty on the Prohibition of Nuclear Weapons, 2017, and International Campaign to Abolish Nuclear Weapons [ICAN] Nobel Peace Prize 2017 counter-moves; Geopolitical Crimes of World War II). In this sense, the NPT approach, as supplemented by a geopolitical regime of implementation currently threatening to unleash a war with a Iran, has given geopolitical support to a highly dangerous feature of world order as currently operationalized.
Geopolitical Crimes Arising from World War I’s Peace Diplomacy
As suggested, the Geopolitical Crimes of World War I and II are specified as including an extended conception of war as encompassing “peace diplomacy”, that is, the arrangements imposed on the defeated side after active combat ended. The basic contention is that diplomacy that was deliberately wrongful should be held subject to accountable procedures if responsible for inflicting massive suffering on innocent people and their societies. More specifically, the argument set forth suggest the desirability of adding Geopolitical Crimes to the list of Crimes against Humanity set forth in Article 7 of the Rome Statute (United Nations General Assembly 1998) governing the activities of the ICC.
It seems relevant to ignore chronology and mention the most obvious Geopolitical Crimes of World War II before turning to World War I. As earlier suggested, the most consequential Geopolitical Crime involved the normalization of bombing of civilian populations and cities as exemplified by post-1945 patterns of warfare in Korea, Vietnam and more recently in Iraq, Syria and Yemen; this normalization covered atomic bombs, which without comment also extended the cover of legal- ity to nuclear weapons under the positivist precept that whatever is not explicitly forbidden is permitted; imposed “partition” arrangements for Korea, Vietnam and Germany, disrupting natural and traditional political communities of these countries giving rise to warfare and war-threatening tensions that lasted for decades, and reflecting geopolitical arrangements of convenience that under later Cold War conditions could have led to the outbreak of World War III, Korean War
and Vietnam War. These divided country arrangements were implemented with- out consulting the people affected and ignored what became known as “the inalienable right of self-determination” in the decolonization period.
Turning to the peace diplomacy that followed the ending of World War I, it too created by design severe problems that would haunt the affected populations for generations. Although mindlessly indifferent, given the failure to prohibit such behavior, it is admittedly not responsible to suggest after such a lapse of time that this peace diplomacy was a Geopolitical Crime in any plausible legal sense. However, it is in my view quite reasonable to suggest, even retroactively, that the Allied powers were politically and ethically responsible for the commission of grave Geopolitical Crimes. A similar logic seems applicable to Armenian contentions that Ottoman Turkey was guilty of “genocide” due to its responsibility for the organized massacres of hundreds of thousands of Armenians in 1915. A genocide occurred, as noted by Hitler and the world did nothing to stop it. This distinction between what is unlawful and what is political and ethically wrong is important. In 1915, the word genocide had not yet been invented and no norm of prohibition was formally adopted prior to 1951, making any attempted legal application retroactive in violation of the fundamental principle of criminal justice “no punishment without a prior law”.
And so unlike Albright’s assertion, which is contemporaneous with the events, the World War I allegations are of a political and ethical nature, but with the encouragement that such negative diplomacy be stigmatized by being criminalized. In the context of World War I’s peace diplomacy I would call attention to three major initiatives each of which contributed to the current regional landscape of turmoil, extremism and violence causing massive suffering: the Sykes-Picot Agreement (1916), the Balfour Declaration (1917) and the abolition of the Islamic Caliphate (1924). The first two of these initiatives occurred prior to the ending of World War I but were explicitly incorporated into the peace arrangement imposed on the Middle East. These two colonialist initiatives embedded in the peace diplomacy, did not as such violate prevailing legal norms, nor directly contradict Western political and ethical standards, but seemed imprudent in view of nationalist challenges emanating from the non-West and the wholly disruptive nature of the Zionist project (creating a Jewish state, temporarily disguised as a Jewish “homeland” in a non-Jewish society; at the time of Balfour the Jewish population in Palestine was in the vicinity of 8%).
Kemal Ataturk decreed the abolition of the Caliphate in 1924 as part of his central project of making Turkey a Europeanized secular state along the specific lines of France. Although such an undertaking would have negative reverberations later in Turkey, it would not be reasonable to expect a political leader to anticipate this, and in fact, the secularization of Turkey was consistent with the modernization
norms that prevailed politically and ethically in the West. In actuality, however, Ataturk’s modernization project had a dislocating effect in Turkey that bears comparison with the Zionist impact on Palestine: it represented an attempt from above to impose a secular Europeanized state on a religiously oriented and non-Western multiethnic society that had long existed in Turkey. The Shah of Iran attempted the same sort of social engineering transformation of Iran that also produced a drastic backlash.
In my view the basic Geopolitical Crime committed with respect to the Ottoman Empire involved the imposition of European territorial states on a region that had been previously governed in a loose and largely non-territorial manner. More concretely, the region had for centuries been under the rule of the Ottoman Empire that divided the Arab world into “millets” vested with responsibility for local self- government, based on distinct units reflecting ethnic and religious identities. This system of governance was long largely accepted by inhabitants as “natural” or legitimate political communities, with identities that were local and tribal as well as civilizational and religious, and essentially non-territorial in the sense of the modern state system based on the central juridical idea of territorial sovereignty.
What Sykes-Picot attempted to do was to satisfy the colonial ambitions of Britain and France substituting territorial colonies within fixed international boundaries for Ottoman millets. This meant overriding the preceding natural and established communities by imposing borders and authority structures responsive to colonial priorities (e.g. Britain wanted to secure Palestine so as to be in a better position to protect the Suez Canal and trade routes to India; France wanted to establish Lebanon within borders that would ensure the presence of a Christian majority state in the region subject to its control).
I find it significant that the most influential and stark critiques of this extension of the European state system to the Middle East emphasize the illegitimacy of this element of territoriality. For instance, Ayatollah Khomeini expressed the view that neither territorial European style states nor dynastic monarchies were legitimate forms of political community. He contended that the revolution in Iran was “Islamic” (that is, non-territorial) and not “Iranian” (that is, territorial). Osama Bin Laden in explaining the ethos of his movement challenging the status quo in the Arab world pointed to 80 years of humiliation for Muslims due to the abolition of the Islamic Caliphate. The first slogan after ISIS established its ill-fated caliphate in 2014 was “the end of Sykes-Picot”, exhibiting a historical consciousness hostile to territoriality. It is possible to discount such statements as the voice of Islamic extremists that are not representative of the region, and cannot validly claim to be the voice of the people, which is more accepting of modernity, secularism and territoriality, and the accompaniment of territorial states. At the same time, one notices that these states have not succeeded in establishing any kind of voluntary or natural political community, have confronted recurrent chaos, geopolitical interventions, a series of governing authorities relying on brute force to establish and maintain order. The region has experienced a century of violent conflict, punctuated by periodic regional wars and a series of large-scale military operations, and leading to the expulsion of several hundred thousand Palestinians from their homeland.
One of the worst Geopolitical Crimes involved the coercive fragmentation and victimization of the Palestinian people as a whole. It is little wonder that in the era of decolonization, the establishment of Israel would occasion cycles of resistance and repression with still no end in sight. Surely, Balfour, despite the colonial arrogance of the declaration, could not be held responsible for foreseeing what would unfold, and colonial ambitions were later somewhat moderated by being forced into the mandates system that promised, although vaguely, eventual political independence. As with the Armenian case, what we can learn by looking back a century is that if the Balfour Declaration and its subsequent implementation had been undertaken in today’s post-colonial world it would qualify without question in the sense used here as a Geopolitical Crime, although not from the perspective of ICL.
Similarly, with the third initiative which was a spillover from World War I although distinct from its formal diplomacy. Turkey achieved independence by force of arms under the leadership of Kemal Ataturk, a visionary leader who deter- mined to take Turkey down the path of modernization, which meant secularism, nationalism, industrialization, and statism. This led Ataturk to shift course, and in 1924 abolish the Islamic caliphate that had its administrative center in Istanbul, once again reinforcing the trend away from statelessness in the Ottoman Middle East and towards a statist region organized around the somewhat alien European model of territorial sovereignty.
I am suggesting that these three initiatives constitute the deep roots of the tragedy we currently witness in the Middle East undoubtedly aggravated by the presence of abundant oil reserves vital for the functioning of the world economy. This is not meant to diminish the relevance of more proximate realities that help up grasp the more immediate con- text of the present awful conjuncture of forces in the region. The Cold War, starting with the Truman Doctrine, led to rigidity and confrontation that also produced regime-changing interventions, as in Iran in 1953, protecting foreign investment in the oil industry and also ensuring ideological alignment with the West. These realities underlay the later inducements of geopolitical actors to intervene in the region to protect their access to the vast oil reserves of the Gulf, the concern of the West to stem the tide of political Islam that flowed from the Iranian experience in 1979, and to act in ways that bolstered Israel’s security. The 9/11 attacks, an outgrowth of these earlier developments, further aggravated by internal and external engagements that sought to shape the political future of the region. The Arab Spring of 2011 followed by counterrevolutionary responses have led to the chaos and violence evident in Syria, Yemen, Libya, and Iraq, as well as the kind of repressive regime brought about by the 2013 military coup in Egypt.
Conclusion
I think that so me Geopolitical Crimes are ongoing and others are being initiated to reflect current realities. In. my judgment, the democratic citizenries of the world have strong incentives to oppose their commission. To illustrate this contemporary dimension, I would regard the withdrawal by Trump from the Paris Agreement on Climate Change (2016) or his decertification of the Iran Nuclear Program Agreement (2015) as blatant Geopolitical Crimes that should be so understood and in a more humane world order, would be prohibited, if possible prevented, and if necessary, accordingly punished.
Telford Taylor, one of the American prosecutors at Nuremberg, ends his book comparing Nuremberg with Vietnam with this provocative quote from the French statesman, Georges Clemenceau: “It was worse than a crime it was a mistake.” (Taylor, Nuremberg and Vietnam: An American Tragedy, 1970). What I have been suggesting is that we should criminalize geopolitical mistakes of grave magnitude. In this more normative sense, crimes are far worse than mistakes.
We can no longer afford the occurrence of deliberate choices by representatives of leading governments that should be foreseen as producing grave harm to the human interest in achieving humane societies and a sustainable future for the species. In effect, the vertical dimension of world order needs to become subject to the discipline of international criminal law for the sake of human wellbeing, species survival, and ICL needs to be expanded to include Geopolitical Crimes.
References
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Tags: Balfour Declaration, Crimes against Humanity, Geopolitical Crimes, international criminal law, Peace Diplomacy, Versailles
Global Justice in the 21st Century 
Will Trump’s War-Mongering Lead to War with Iran
12 Aug[Prefatory Note: This post is an edited version of an interview on 11 August 2019 by an Iranian journalist, Nozhan Etezad, and published in Iran Newpaper. It addresses various aspects of the troubled recent relationship between Iran/U.S.]
Will Trump’s War-Mongering Lead to War with Iran
1-Why is there a contradiction in Trump’s policy towards Iran? On the
one hand, he says he wants to negotiate, and on the other, US
government is boycotting Zarif and the supreme leader of Iran. What do
think about this issue?
You are quite right to take note of this striking contradiction, but the world has cometo expect such inconsistencies in Trump’s diplomatic style between Trump’s forthcoming and forbidding sides. He is consistently unpredictable, and as such, is capable of moving without much warning in either belligerent or accommodating directions when it comes to decisions involving action. On balance, he seems to prefer negotiations to warfare. If so, it would seem sensible for top Iranian political leaders to make clear statements indicating their willingness to discuss any concerns with Trump, expressing their interest in a meeting and their commitment to the avoidance of further war endangering confrontations.
Two important unknowns should be read as qualifications to my response: how much effective pressure are outside actors putting on Trump to maintain an aggressive approach to Iran; how strong is the opposition in Tehran to any Iranian compromises or to displays of an unconditional willingness to engage in direct talks with the U.S. Government given Trump’s hostile behavior up until now. Would too great a show of eagerness for accommodation and normalization suggest Iranian weakness, including a readiness to offer concessions?
2-Some say Rouhani is not on the sanctions list of US Because Trump
want to meet him. what is your opinion? Is it possible to negotiate
with him in the current situatio? Even when Ayatollah Khamenei has
stated that neither war nor Iran will be negotiated?
There are two concerns here. First, would Trump be more receptive to Rouhanithan Zarif as a negotiating partner? Possibly, because Rouhani is the president of Iran, thus possessing an equal status in government as Trump. It might be worthwhile for Iranian leaders to explore this possible diplomatic opening, and the fact that it seems inconsistent with other aspects of U.S. behavior should not be taken too seriously as an obstacle if the initiative otherwise seems worth exploring.
The second concern is on the Iranian side. Would Ayatollah Khamenei or others in Iran block such a meeting or oppose following up should it achieve a positive outcome? I have no special opinion about this, but a lack of sufficient support on the Iranian side could have the effect of making the current situation between the two countries even more dangerous by making diplomacy appear to be a dead-end, and this could give warmongers in the U.S. Government additional influence on policy toward Iran.
3-How do you evaluate Iranian diplomacy as a means of countering Trump’s pressure?
Has Iran’s diplomacy been successful?
I think that Iranian diplomacy has so far exhibited composure and resolve, communicating to Washington a determination by Tehran not to be intimidated even by the ‘maximum pressures’ reportedly mounted by Trump. These signs of Iranian strength and political will may be over time improving the prospects for a diplomatic accommodation as it should now be clear that coercive moves by Trump short of war will not lead Iran to back down or surrender politically in response to sanctions or other hostile acts, and recourse to war, as dangerous as it would be, so far seems only to be. relevant as a default option, that is, occurring by miscalculation or accident.
4-Do you think it is possible in the current situation to create
Track II Diplomacy for behind-the-scenes negotiations between Iran and
the US? Is there any will in America for that? Do you think Iran is
interested?
These questions are all difficult to answer as Track II diplomacy to be effective must be undertaken and carried forward discreetly at its early stages without public disclosure or political comment. In my view, considering the difficulties of achieving a breakthrough by way of traditional diplomacy, it is worth giving consideration to a Track II approach. Whether either government has the will or capability to pursue such a course at this point is not evident. Finally, without proper authorization by political leaders, Track II initiatives have a risk of backfiring by being disowned through contentions that the initiative was improperly authorized or dealt with in bad faith.
5-Why was Zarif sanctioned in your opinion? Is Trump angry about his
diplomatic ability and his relations with the media and American
politicians? Will subtle sanctions make him unable to travel to New
York? Will the American media no longer interview him?
My response to these questions is necessarily highly speculative. Zarif has been quoted at one point saying that agreements with the U.S. are not worth the ink used to write them, and that might have been regarded by the White House as an unacceptable insult, although I regard it as a reasonable reaction to the U.S. withdrawal from the JCPOA (Joint Comprehensive Plan of Action, familiarly known as the 2015 Iranian Nuclear Agreement) and other unprovoked unfriendly and damaging policies pursued by the United States. Other motivations may arise from Zarif being seen as the architect of the repudiated agreement that Trump has rejected in such a defiant manner, making him disposed to be a difficult negotiator.
If Zarif comes to NYC on an official visit to represent Iran at the UN I would expect that he would be allowed to enter the US, but restricted in his movements beyond the city. While present on a UN mission, I do not think the media would be hesitant or precluded from talking with him.
.
6-Some believe that Iran is now launching a maximum countermeasures
campaign against the United States and exerting pressure on the EU. These counter-measures have so far taken the form of increased uranium enrichment and the seizure of several foreign oil tankers in the Persian. Gulf. Why has Iran taken such action? Is it in the interest of Iranian diplomacy? Can Iran use the leverage of these measures in a possible future negotiation with the US?
Both the incremental withdrawal of Iran from the obligations of the JCPOA and the tanker seizures in the Gulf seem designed to demonstrate both Iranian readiness to stand upfor their national interests and legal rights, and its pursuit of a policy of retaliatory response to provocative actions taken against its country by Trump. By so acting Iran has is sending a message to the effect that if the U.S. or others act strongly to imperil Iran’s wellbeing, then Iran will react with equivalent measures of hostility and displays of defiance.
Iran’s approach has risks but it also is the most promising alternative to a no-win strategy of passivity. In effect, I think Iran is making it clear that the coercion of the sort deployed will not work to weaken their political will or alter their policies, and that either there must be genuine moves by the U.S. toward normalization and respect for Iran’s sovereign rights or there could be a war that would have bad effects for many political actors. I am assuming that Iran is hoping that its adversaries realize that war would be devastating for all involved, and that in the end compromise and accommodation is the best approach for both sides. We cannot be sure about this, especially considering the various irresponsible influences at work, both seen and unseen. Given the alternatives, I believe Iran has adopted correct policies to uphold its sovereign rights in this vigorous manner given Trump’s provocations.
7-Do you find it possible to negotiate with Iran during the Trump era?
If there is a negotiation, what kind of cards does Iran have for
playing?
We cannot be sure about anything with regard to international negotiations in the Trump Era, but it is probably helpful to remember that Trump would politically gain immensely from walking back the crisis and achieving normalization with Iran, and lose dramatically if the crisis spins out of control, and a costly and chaotic war ensues. Remembering that presidential elections in the US are scheduled for November 2020, American domestic politics exert a huge and greater than usual impact on foreign policy. In this sense, Iran holds the cards that could give or withhold a huge political victory for Trump by whether or not it reaches an agreement.
It may be instructive to consider the approach adopted by Trump toward North Korea in somewhat parallel circumstances. His Korean diplomacy can be interpreted as a sign of the willingness of Trump to pursue a war-avoidance diplomacy with a long-term adversary of the United States even in the face of criticism from some advisors. The. Iranian situation is, of course, different, especially as it is closely linked to the U.S. relationship with Israel, and touches on other complexities of Middle East politics. On balance, Iran should be cautious about being too hopeful about normalization in the near future, but at the same time should remain sensitive to the emergence of potential opportunities for a diplomatic breakthrough.
8-Do you think that if Trump is reelected there will be a change in Iran’s approach to negotiations? What should the Iranian diplomacy team do if confronted by a reelected Trump?
It is almost impossible to predict what Trump would do with respect to foreign policy if reelected. On the optimistic side, he might want to simplify the challenges facing the. U.S. by resolving foreign policy concerns to the extent possible so as to focus on such domestic priorities as health and immigration. His presidency might also shift from popularity with voters concerns to legacy concerns, and whether in the end Trump wants to be remembered as a geopolitical warrior or as an innovative peacemaker. We can only hope that the latter possibility prevails if political misfortune befalls, and Trump is reelected. I would also suggest that at this point it is not more than 50% likely that Trump will be reelected. It depends on whether has Democratic opponent has unified support among Democrats and whether the American economy remains strong (employment, stock market).
With respect to Iran’s response to Trump’s reelection, it seems like to depend on intervening developments, and whether Trump seems combative in depicting American foreign policy toward Iran and the Middle East. I would recommend that the Iran diplomatic team assess the situation as it unfolds without endorsing expectations either of accommodation or intensifying confrontation. The most likely future is continuity, a small variation in either direction as compared to the present unsatisfactory situation.
9-Why did Trump abandon a military strike against Iran? Was it because of the
fear of Iran’s military response deterred or because of Iran’s diplomatic consultations?
The true motives for such a sudden policy reversal are rarely truthfully disclosed by governments, I suspect a combination of factors converged in this instance of which the most important was the sense that the conflict would dangerously escalate once military force was used, raising the risks of a foreign policy disaster to unacceptable levels. Besides, Trump had campaigned in the past against war making in the Middle East, and during his presidency while he has often irresponsibly bluffed and threatened, so far he has not acted militarily.
10-How successful has Iranian media diplomacy been in influencing
regional and global public opinion to counter Trump’s policies?
Does Trump Really Want Negotiation or War?
Iranian media diplomacy has been successful in conveying to the world the resolve of Iran to resist by all available means pressures from the U.S. and its regional adversaries. This has likely made regional actors advocate caution on the part of U.S. allies at least via confidential communications. There are few voices in the region that view a war with Iran as a viable option, and what Iran has shown by its strong recent responses to the repudiation of JCPOA and sanctions is that without war no political victory can be achieved merely by relying on threats and various forms of coercion. Also relevant as discouraging military action are the experiences of war in Iraq, Syria, and Yemen
11-How successful has Iran’s diplomacy been in persuading Europeans to
profit economically under a nuclear deal?
I am not an expert on this, but see little evidence that Iran has been able to work out significant beneficial arrangements with European countries, especially with respect to arranging oil sales. My impression is that while Europe is critical of the Trump path it is not prepared to risk worsening its economic and diplomatic relations with the US by rescuing Iran from the sanctions policy.
12-Some believe the US cannot make peace in Afghanistan without Iran’s
participation. Is it possible for Iran and the US to discuss an Afghanistan arrangement
during the Trump era? Some reports suggest that Russia will hold a
summit on Afghanistan soon. Do you think a meeting is possible
between Iranian and US officials on the sidelines in the course of such an event?
I think anything is possible along these lines with respect to finding a path to peace in Afghanistan, which seems a high priority of Trump, as well as of other political actors. It all depends on how priorities are weighed against one another by Washington and others. There is no requirement of overall consistency when it comes to policymaking. Iran might also resist constructive participation in Afghan negotiations favored by the West so long as Iran is targeted by sanctions and by threats/warnings.
Informal meetings on the sidelines are also quite possible as both sides may want to signal their willingness to find a mutually acceptable path to normalization and away from a slide toward war that would have catastrophic consequences for all involved.
14-Some people are saying that if US Senator Rand Paul’s meets with Zarif it could lead to improvements in Iran-US relations. What is your opinion? Others say appointing
a representative, such as Zalmay Khalilzad, would be a better idea to
negotiate with Iran because he had previously talked to Iranian
officials about Afghanistan. What is your opinion? If Trump wants to
deal with Iran might he indicate this by giving Paul a green light to go ahead?
I doubt that Rand Paul would be given any serious diplomatic role. He is looked upon in Washington as an eccentric and inexperienced outsider that is not trusted by the political mainstream, including by most members of his own political party. With Trump, nothing can be ruled out, and it is possible Paul would be used as an expendable triial balloon. In contrast, Khalilzad is an experienced and mainstream envoy whose appointment would signal an intention to give diplomacy a serious chance. But it might also require a commitment to diplomacy that Trump is not presently ready to make. If so, Paul could become a preferred option as there would not be strong expectations of success created by his appointment.
15-What will be the position of Trump as stand between Bolton and Pompeo and
the pursuit of his anti-war approach towards Iran?
How much diplomatically is it possible for Iran to convince the new
British government to come to an agreement with it? What is your
prediction? Will Boris Johnson be closely associated with Trump after Iran’s
election or will he pursue a more independent policy?
As far as the relationship of Boris Johnson’s leadership of Britain to Iran is concerned, I imagine that the most likely course is one openly supportive of Trump. Johnson will be preoccupied with minimizing the post-Brexit challenges facing Britain, and will be highly motivated to seek positive and enhanced trade and finance relations with the United States to offset an economic freefall some expect to follow quickly in the event of a no-deal departure from the EU. Under these conditions Johnson is almost certain not to allow any friction in relation to Iran to interfere with this overriding priority. At the same time, Johnson is ambitious, impulsive, and unpredictable, and might take the chance of adopting a more independent approach to Iran and the Middle East generally.
16-Finally, Could Trump risk making a military strike against Iran before
the 2020 election? What if he wins again? Do you think it will be
possible for the US or its allies to attack Iran after the election?
Anything is possible, but as my earlier responses suggest, it is most likely but far from certain that Trump will seek to avoid war with Iran and not follow the advice of such anti-Iranian hawkish advisors as Bolton and Pompeo. I think the inhibitions on recourse to military action against Iran will be somewhat stronger before the 2020 election than after a Trump political victory in the form or reelection. At such a point, I would still expect that Trump would seek to avoid war with Iran, and also that even Israel in the end would also not want an. actual war, which could cause Israel to experience massive devastation, and therefore, behind the scenes Israel can be expected to push either for a continuation of the present diplomacy of exerting pressure as at present or even might favor deescalating the conflict for fear that it could at some point unintentionally produce a mutually destructive war.
Tags: 'Maximum Pressures, Bolton-Pompeo, Coercive Diplomacy, JCPOA, Rouhani, Tanker Seizures, Trump's diplomacy, Zarif