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Reciprocity, Lawfare, and Self-Defense: Targeted Killing

6 Mar


 

This post is a modified, revised, and expanded text of a contribution to a six-part Jadaliyya roundtable on targeted killing, edited by Noura Erakat, and posted on the Jadaliyya website, March 5, 2012; the roundtable responds to an important article by Lisa Hajjar referred to in the opening paragraph.

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There is an emergent Israeli/American controversy on the lawfulness of targeted killing. Although the policy has not yet attained the status of being a national debate, there are signs that it may be about to happen, especially in light of the Attorney General, Eric Holder’s Northwestern Law School speech on March 5, 2012 outlining the Obama’s administration’s controversial approach to targeted killing in some detail. Lisa Hajjar convincingly narrates how the “legalization” of targeted killing has evolved over the course of the last twenty years. [Hajjar, “Lawfare and Targeted Killing:Developments in the Israeli and U.S. Contexts,” Jadaliyya, Jan. 15, 2012] She there calls attention to the analogy to the torture debate that, in many ways, defined the political and moral identity of the Bush presidency in the aftermath of the 9/11 attacks, and even caused moral and legal fissures to develop that divided the American people unto this day.

Hajjar shows that it was Israel that first crossed the threshold of legality in response to a wave of suicide bombings that traumatized Israeli society in the 1990s. In other words, targeted killing became a tactic of choice for both the Israel and the United States as part of the preventive logic of counter-terrorism, that is, placing a premium on eliminating threats before harm is inflicted rather than the reactive logic of striking back and retaliating. The upsurge in targeted killing seems responsive to the belief that neither defensive strategies nor deterrence, nor massive retaliation are appropriate or effective against a terrorist adversary, especially if the violence might accompanied by the readiness of a perpetrator to die while carrying out a mission.

By so doing, it gives up on the struggle to restrict the discretion of states to claim self-defense as an open ended justification for the use of force. This is a major setback for war prevention efforts resting on international law that can be traced back at least to the Kellogg-Briand Pact of 1928 that outlawed recourse to war, and was later reinforced and elaborated at the Nuremberg trials and in the core provisions, Articles 2(4) and 51, of the UN Charter. In other words, from an international law perspective the stakes are higher than they might seem in the context of authorizing target killing by invoking the alleged security necessities of the ‘war’ occasioned by the 9/11 attacks. Holder framed his defense of the tactics, including targeted killing, relied upon by the Obama presidency in the terms initially laid down by George W. Bush in his September 20, 2001 speech to a joint session of Congress: “We are a nation at war.” How different might the last decade have been, and likely for the better, if Bush had opted back then in that feverish atmosphere for a policy of enhanced law enforcement, not a global war on terror. And one can only wonder, and question the failure of Obama to take advantage of the changed climate in 2009 when he moved into the White House, or after the execution of Osama Bin Laden, to indicate that the war was at an end, and from now on the guidelines of law enforcement would prevail. Earlier terrorist organizations operating in Europe poses much greater threats to the security of societies than is posed by the remnants of Al Qaeda, and never insisted on the governmental prerogatives of warmaking.

In considering the victims of targeted killing we are dealing with one aspect of the plight of rightless Palestinians and alleged American enemies scattered around the world, with an inevitable skepticism about the degree to which this unaccountable authority to kill individuals is exercised in a responsible manner as claimed by its apologists, most recently by Eric Holder. Looking at the Israel record with respect to Palestinian prisons or the American treatment of its detainees at Abu Ghraib or Gunatánamo Bay there is every reason to doubt whether the claims of great care exercised in the approval of targets are to be trusted at all. Certainly, those selected for torture were often persons without information and sometimes without any real involvement with terrorist activities. In important respects, target killing is worse than torture due both to its finality which deprives the target of any opportunity to tell his or her story, and because of the collateral damage inflicted on those unlucky innocents who happen to be in the killing zone—or are mistakenly targeted.

        Lawfare: Hajjar draws an instructive distinction between those who regard reliance on law and courts as a positive dimension of political democracy and those who view recourse to law as a means to delegitimize states and their security policies. I would develop this distinction by viewing civil society’s recourse to litigation and legal arguments as “constructive lawfare,” while viewing the denigration of law’s role by governments, specifically, Israel and the US, as nihilistic or regressive, and an effort to free themselves from all forms of legal accountability that they cannot fully control. Such efforts to deplore recourse to law and international standards of legitimacy aim to insulate state security policy from procedures and discipline of accountability, and deprive society of an absolutely necessary check on the abuse of state power undertaken in secrecy and insulated from even post-facto investigation. Constructive lawfare is one of the few means available in a democratic society to redress the new imbalance between state and society in the post-9/11 world, and in relation to the acute vulnerability experienced daily by a people living under occupation for decades.

Instead of seeking to invalidate ‘lawfare,’ governments that took seriously their own insistence on the importance of living according to cherished values would move to allow citizens to have greater access to courts to raise questions of international and constitutional law flowing from governmental security policies.

More specifically, it would be a meaningful gesture in this direction if the U.S. Government were to foreswear procedural copouts from accountability by renouncing the political questions doctrine, executive privilege, and sovereign immunity. Holder quotes Obama several times to the effect that adhering to the rule of law is the right thing to do, but also because it is more effective in upholding security interests. As Obama expressed it as the National Archives in 2009: “[w]e uphold our most cherished values not only because doing so is right, but because it strengthens our country and it keeps it safe. Time and again, our values have been our best national security asset.” If that were genuinely believed, then a different approach would have been long ago adopted both in relation to targeted killing, and more generally, to security: less secrecy, more accountability, and more readiness to recognize and address the legitimate grievances of foreign adversaries.

            Reciprocity: David Cole makes the following cogent observation on his New York Review of Books blog (19 September 2011): “In international law, where reciprocity governs, what is lawful for the goose is lawful for the gander.” He goes further in questioning the approach taken to targeted killing by the Obama administration as being unmindful of setting a precedent that is a prelude to future regret: if we “continue to justify such practices in only the vaguest of terms, we should expect other countries to take them up—and almost certainly in ways we will not find to our liking.” In effect, he is adopting the view that Obama embraces, which is the convenient convergence of virtue and practical benefit.

It is true that international law in many substantive domains, from diplomatic exchange to commerce, substitutes reciprocity for enforcement, and so what is claimed for oneself is granted to others. However, in the domains of national security, the use of armed force, and criminal accountability for gross crime, international law operates more characteristically according to an imperial logic, or at best a hegemonic logic, in which equals are not treated equally. It is obvious that losers in wars with the West and leaders of some Global South countries are being held more and more accountable for crimes against humanity, especially since the establishment of the International Criminal Court a decade ago. But it is equally obvious that leaders of Western countries, including Israel, enjoy de facto impunity despite their evident involvement in crimes against humanity.

The one exception, which irritates geopolitical actors clinging to impunity, is the haphazard efforts to detain and prosecute state officials and agents under the controversial rubric of universal jurisdiction. Hajjar’s article gives a helpful summary of the pull and push pressures associated with attempts to rely on universal jurisdiction in relation to Israeli military and political leaders whose travel carries them to countries in Western Europe that have laws on their books permitting the use of domestic courts to pursue accountability for crimes of state committed beyond normal territorial sovereignty.  What is most notable is that these attempts to extend the reach of international criminal law beyond what is possible at a global level are furiously resisted by the United States and Israel, claiming the potential disruption of diplomatic interaction. True, the imposition of law can be disruptive, but the refusal to apply law is also disruptive in a different way by discrediting fundamental claims about animating values.

Whether the targeted killing precedents being set by the US and Israel will come to haunt these countries is highly uncertain, and they will do what they can to persuade public opinion that such claims made by hostile states are undisguised terrorism. Israel can assassinate Iranian nuclear scientists with impunity, while an alleged Iranian threat to kill a Saudi Arabian diplomat, which never materialized, is treated as a heinous instance of international terrorism is never questioned in the mainstream media. In other words, the language of law will be used in contradictory ways to deal with our acts and theirs’.

The US used atomic bombs against Japanese cities at the end of World War II, escaped any kind of accountability as war crimes prosecutions were limited to the wrongdoing of the Germans and Japanese, the losers in the war, which led critics of such double standards to deride the outcomes at Nuremberg and Tokyo as “victors’ justice.” In the current era, practices of targeted killing are certain to spread. Fifty countries have drones, and some deploy them for surveillance and reconnaissance missions. For example, Turkey, in fighting against Kurdish insurgents, made use of drones to carry out recent cross-border raids against PKK base areas in northern Iraq. The future will almost surely witness a strong effort by the United States to impose geopolitical discipline on attack uses of drone aircraft. Whether such an effort will be successful is uncertain as the relative high accessibility of drone technology as compared to nuclear weaponry may make it impossible to implement a non-proliferation approach.

Surely, Iran would have strong grounds to emulate Israeli and American practice with regard to targeted killing, particularly in view of the alleged Israeli targeting and assassinating of Iranian nuclear scientists in recent years, as well as mounting repeated overt threats of launching an attack designed to disable Iran’s nuclear program. Such threats would appear to be direct violations of Article 2(4) of the UN Charter that categorically prohibits “the threat or use of force” except in situations of self-defense against a prior armed attack (Article 51) or as mandated by a decision of the UN Security Council. But if Iran was to avail itself of the targeted killing precedent to assassinate individuals in Israel or the United States that it deemed to be threatening or responsible for a prior attack on its citizens, such violence would be denounced as “terrorism,” and devastating forms of retaliation would almost certainly follow.

In other words, reciprocity is not likely to shape the future of targeted killing, but rather a regime of double standards tailored to the specific realities of the spread and use of drone weaponry. If such a one sided regime is established it would have the effect of giving a new meaning to military superiority in the 21st century, and widen the opportunities for geopolitical management of international conflict. It is hard to imagine that China or Russia, and perhaps others, would acquiesce in this event, and new dangerous, costly, and unstable rivalries among leading sovereign states might likely ensue.

Human Rights: It is important to introduce the perspectives of human rights into the legal debate on targeting killing, and not limit inquiry to the applicability of international humanitarian law as set forth in the Geneva Conventions of 1949 and the Geneva Protocols of 1977. Targeted killing of a non-combatant involves a challenge to the right to life, as well as constitutes a flagrant form of extra-judicial execution. UN Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions Philip Alston, in his influential 2010 report to the UN Human Rights Council, legally condemns targeted killing by drones on these bases, especially those taking place outside the combat zone, or as the Obama presidency puts it, far from “the hot battlefield.”

These human rights objections to targeted killing take on added force when extended to individuals who are suspected of inciting terrorist acts, as was the case with Anwar al-Awlaki, but without any disclosure of evidence of either the case against the target or a credible demonstration that such an individual posed an imminent security threat and could not be captured. As Hajjar points out, the difficulties posed by detention constraints and questionable evidence that would hold up in court exert pressure to avoid these complexities by killing the person in question.

Self-defense: The most serious encroachment on relatively settled conceptions of the self-defense exception to the international law prohibition on the use of force is the US reliance on a unilaterally expanded definition of self-defense to validate targeted killing in countries remote from existing combat zones. This expansion of the right to use force is a virtual abandonment without legal and political argument of the animating undertaking of the UN Charter to set forth a legal framework that delimits as carefully as language can, the legal discretion by states to use force without a Security Council mandate. Even conceding some flexibility in construing the right of self-defense with respect to the red lines of Article 51, this kind of globalization of the option to kill terrorist suspects, and by so doing often spread terror in societies that are geographically unrelated to active battlefields, stretches self-defense beyond the breaking point in a manner resembling Yoo/Gonzales insistence that water boarding was not a form of torture. Implicit in Holder’s approach is the uncomfortable question of whether there are any limits on hegemonic lawmaking left in the 21st century? The question is not really deflected by Holder’s bland and meaningless assurance: “Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force.” (that is, necessity, discrimination, proportionality, humanity). These abstract guidelines, legal descendants of the Just War Doctrine are meaningless without being coupled to some mechanism of accountability, and here where the evidence surrounding a targeted killing is shrouded in secrecy it is not even possible to mount an informal argument of abuse.

To view the execution of individuals in Yemen or Somalia on the ground that their activities are to be assimilated to the claim of self-defense associated with a continuing urgent response to the al-Qaeda 9/11 attacks is to unilaterally expand the option of recourse to international force beyond what international law had attempted to impose on states after 1945. True, over the years state practice has nibbled away at the red lines written into Article 51, sometimes reasonably, sometimes not, especially weakened in the name of flexibility has been the insistence that a valid claim of self-defense could only be made in response to a prior armed attack, but the Obama administration’s legal rationale for targeted killing cuts the use of force off from any testable legal mooring, including the procedural requirement in the Charter that a claimant state must submit its use of force to the Security Council for review. What becomes clear, and without any indication of forethought, is the abandonment of that effort memorialized in the words of the Preamble to the UN Charter “to save succeeding generations from the scourge of war.”  Additionally, Obama has done nothing to restore the constitutional balance when it comes to war, failing to seek a declaration of war before its involvement in the NATO War against Libya. The Legal Advisor, Harold Koh, sought to justify this failure by claiming that the hostilities didn’t rise to the level of war mainly because there was little prospect of American casualties or troops on the ground. Apparently, the devastation wrought by thousands of bombing sorties does not count in Koh’s thinking as ‘war.’ Whether such a sensibility should be described as Orwellian or imperialist is mainly a matter of taste.

The most comprehensive legal justifications for targeted killing have been made by Eric Holder and John Brennan, Obama’s official chief counterterrorist advisor, in his speech at the Harvard Law School a few months ago. For devastating critique of the due process issues raised by targeted killing as rationalized by Holder see David Cole’s blog post
http://www.nybooks.com/blogs/nyrblog/2012/mar/06/targeted-killings-holder-speech/ The irony here is that, just as John Yoo shocked the conscience of liberal America by insisting that practices long assumed to be torture (most notably water boarding) were not torture (i.e., flagrantly illegal) when employed by the US government, now the Obama administration asserts a similar position that America loves the rule of law, except of course when it might inhibit recourse to a preferred tactic. If such a bump in the road, then the lawyers are sent in with their shovels to remove any appearance of an obstacle, making it clear to the world that whatever America wants to do is “legal” so are as its leading legal technicians are concerned even when the policy in question flaunts generally accepted understandings of a rule of international law. In this instance, self-defense is stretched way beyond the accepted consensus among international law specialists as most authoritatively expressed by the majority of the International Court of Justice in its Nicaragua decision of 1986. Claiming that self-defense entitles the United States to convert the entire world into a global battlefield is certainly bad law, but it is also likely to be bad policy, generating support for extremist expressions of anti-Americanism and creating tensions with such other states as China and Russia, and maybe Brazil, India, and Turkey. And it is scant consolation for Mr. Holder, Mr. Brennan and other Obama officials to reassure the public that this broad legal authority is being used prudently and sparingly, and with a maximum effort to avoid harm to others than those targeted. Unfortunately, the facts as more impartially assessed do not lend credence to such self-serving packaging of targeted killing without even taking considerationthe spread of terror to communities that might be struck day or night by a drone missile aimed at a suspect. This indiscriminate form of state terrorism embedded in targeted killing does not even get the benefit of an acknowledgement.

 A Word in Conclusion

We now have the materials we need to launch a much overdue debate on targeted killing. Unlike torture, which has vividness and immediacy that existentially assaults our sense of decency and dignity, the relative novelty and remoteness of targeted killing, a technologically facilitated innovation in the tactics of state violence, seems more abstract and numbing, and less in conflict with civilizational values. In some respects, this distinction identifies some real differences. Most legal commentators do not challenge targeted killing if confined to the combat zone, say Afghanistan, but focus their criticisms on its cross-border uses, which in the US case, can be anywhere in the non-Western world. In this regard, while torture is primarily of concern as a crime against humanity, targeted killing raises the most fundamental issues of world order, sovereignty, the scope of warfare, the crime of aggression, and extra-judicial executions.

Saving Khader Adnan’s Life and Legacy

21 Feb


 

            It is a great relief to those millions around the world who were moved to prayer and action by Khader Adnan’s extraordinary hunger strike of 66 days that has ended due to Israel’s agreement to release him on April 17. We who were inspired by such a heroic refusal to accept humiliation and arbitrary arrest can only hope that for the sake of his family, for the cause of Palestinian resistance, and for the struggle to achieve a just peace that Mr. Adnan will fully recover to resume his personal and political life. We can not take for granted that there will be a full recovery given Mr. Adnan’s critical condition confirmed by examining doctors, just prior to his decision on February 21 to resume eating in a normal manner.

 

            While it is appropriate to celebrate this ending of the strike as ‘a victory’ there are several disturbing features that deserve comment. To call an arrangement that saved someone’s life a ‘deal,’ as the media consistently put it, is itself demeaning, and reveals at the very least a failure to appreciate the gravity and deep dedication of purpose that is bound up with such a nonviolent form of resistance. Similarly, the carelessness of the initial reactions was notable, often referring to Mr. Adnan’s ‘release’ when in fact he will be still held in administrate detention for several more weeks, and could conceivably be confined much longer, should Israeli military authorities unilaterally decide that ‘substantial evidence’ against him emerges in this period immediately ahead.

 

            It should also be noted that on matters of policy and principle Israel did not retreat even an inch: in relation to Mr. Adnan, he will be remain in captivity and will be subject to the ‘legal’ possibility that his period of imprisonment could still be extended indefinitely; beyond this, Israeli authorities express no willingness whatsoever to review the cases of the 309 other Palestinians who are presently being held under the administrative detention procedure.

 

            These Palestinians being held include one prisoner detained for more than 5 years, and 17 others for periods of 2-4 years. Israel did not even agree to a review of their misapplications of this administrative procedure within their own frameworks of claims about addressing imminent security threats. The general justification of administrative procedures by governments that rely upon it is to insist that its use is reserved for true and credible emergency situations. But as Mustafa Barghouti points out in the New York Times (February 22, 2012) such a claim strains credulity past the breaking point in the Israeli case. Barghouti writes tellingly that it is worth observing “that among..[those] Palestinians now held in ‘administrative detention’ are 21 of the 120 elected members of the Palestinian Legislative Council, most of whom have  been held for years for no apparent crime other than being democratically elected in 2006, in an election universally regarded as free and fair, as candidates of the party which won a clear majority of seats but which Israel does not like.” In other words, the Israeli claims of exceptional circumstances taking precedence over due process protections do not exist in many of the evident political uses of administrative detention as a means of weakening all forms of Palestinian resistance, including nonviolent opposition politics.

 

            It should also be noted that Israeli commentary treated the arrangement ending the standoff produced by the hunger strike with measured cynicism if not disdain. Even those Israeli who supported the agreement justified it as a practical way of avoiding trouble down the road should Khader Adnan have died while held by Israelis, given the breadth and depth of support his extended hunger strike was receiving among Palestinians and sympathizers from around the world. Keeping Mr. Adnan alive was also seen by Israelis as a means to avoid a wider scrutiny of the institution and practice of administrative detention as it has been used by the Israeli military ‘justice’ system.

 

            Also the timing of the announcement of the arrangement is significant. It was made an hour before an emergency session of the Israeli Supreme Court that was scheduled to hear Mr. Adnan’s petition for release, and there is speculation that although this highest judicial body in Israel has in the past consistently supported the military position in such instances, the situation was so extreme that it might prove embarrassing for Israeli military authorities. There were even some worries on the Israeli side that the extremities of this case could produce an adverse result and even a repudiation of the manner in which Israeli authorities used administrative detention as a procedure allegedly for security, but seemingly for the harassment and intimidation of militant opponents of an oppressive occupation that has continued for 45 years and is aggravated by continuously appropriating Palestinian land and water for the benefit of settlement expansion while disrupting and cleansing long-term Palestinian residency.

 

            What was entirely absent from the Israeli public discourse was some expression of compassion, even if only for the family of Mr. Adnan, which consists of two daughters of four years or less and his articulate pregnant wife, Randa. There was not even the slightest show of respect for the dignity of Mr. Adnan’s long hunger strike or sympathy for the acute suffering that accompanies such a determined foregoing of food and speech for an extended period. Instead, the Israeli commentary that was supportive of the arrangement stressed only pragmatic considerations from the perspective of Israel’s interests. It was one more lost opportunity for Israelis of all shades of opinion to reach across the abyss of political conflict to affirm a common humanity.

 

            But in a contrary spirit, the spokesperson for the Netanyahu government, Mark Regev, seemed only interested in deflecting criticism directed at Israel. He parried criticism by cynically observing that other governments rely on administrative dentention in the name of security, including the United States, so why shouldn’t Israel. He also added that the legality of Israel’s use of administrative detention should not be questioned since it depended not on an Israeli law, but on a 1946 law enacted when Britain was controlling Palestine, unintentionally conceding that Israel was the ‘colonial’ successor to the British! If the legal veil is lifted from administrative detention its character is one of ‘internment,’ a standard practice of colonial powers in dealing with unruly natives.

 

            Of course, Israeli ultra hardliners went further in this direction, referring to Mr. Adnan as ‘a terrorist’ despite the vagueness of official allegations that didn’t ever make such a claim, but only mysteriously contended that he constituted what an official in Tel Aviv described as ‘a threat to regional security,’ whatever that might mean. As might be expected, the notorious Israeli Foreign Minister, Avigdor Lieberman, was characteristically forthright, calling his ‘release’ ‘a wrong decision’ yet accepting the outcome because it is ‘our duty to honor and respect every Supreme Court decision even when we don’t agree with it.” As we know, Mr. Adnan was not released nor did the Israeli Supreme Court make a decision.  This comedy of errors by a leading government official should raise questions about Lieberman’s competence, not to mention his questionable political judgment as to policy. Lieberman’s mean spiritedness extended to attacks on Arab members of the Knesset who visited Mr. Adnan as somehow an indication that  by so doing they were ‘representing terrorists.’ Similarly, MK Danny Danon ignored the context and scorned the agreement ending the hunger strike by calling it reprehensible, an instance of a ‘[capitulation] to terrorism.’

 

            The issues directly raised by this hunger strike are ones of human rights and humane treatment, as well as reliance on administrative detention, and are quite independent of whether or not we endorse Mr. Adnan’s past and present tactics of resistance, which are not at all clear. Some apologists for Israel have tried to deflect these ethical and legal concerns by emphasizing Mr. Adnan’s association with Islamic Jihad and its record of violent attacks and extremist politics. Israelis casually refer to Mr. Adnan as a ‘terrorist’ without charges or proof. He has, in fact, been most often described in recent years more neutrally by those knowledgeable about his role and activities as a spokesperson for Islamic Jihad, but not engaged beyond this. There is no indication in his past or present that he was directly involved in violence, although an undated and unverified YouTube video has surfaced somewhat suspiciously in which Mr. Adnan is depicted as advocating violent resistance and an active recruiter of suicide bombers. Although Islamic Jihad has been responsible in the past for suicide bombings it has seemingly abandoned the practice, which is in line with the repudiation of such forms of violent resistance by Hamas more than ten years ago. Mr. Adnan’s prior arrests  stemmed from militant peaceful demonstrations that landed him in Israeli jails seven times, a Palestinian Authority prison once, and induced him to undertake shorter hunger strikes on three previous occasions, one as recently as 2010.  From what is known, Mr. Adnan is definitely a committed activist who has associated himself with Islamic Jihad, but works on a daily basis as a village baker and maintains a strong family role and popular community presence in his small West Bank town of Arraba.

 

            It is important to pause long enough to take account of Khader Adnan’s achievement, symbolically, substantively, and with respect to future possibilities. We should note that Mr. Adnan’s hunger strike of 66 days is the exact length of Bobby Sands’ hunger strike in 1981 strengthening the bond between the two men, a bond that has been movingly confirmed by a number of Irish family members of their strikers. What is more, the date of Bobby Sands’ death, May 5, 1981, is generally viewed as the turning point in the Irish struggle, the time when the British Government finally started treating the IRA as a political actor with genuine grievances rather than as a terrorist organization that must be run into the ground and exterminated. We can only hope that Febuary 21, 2012 will live in history as a turning point in the Palestinian struggle. Only the future will reveal whether this is a pious wish on my part or becomes over time a historical reality.

 

            Substantively, it is crucial to support a campaign to free the other several hundred Palestinians currently being held in administrative detention and to exert enough pressure to end reliance on the practice altogether. Mr. Adnan’s brave stand will have been mostly without effect if his compelling exposure of the cruelty and arbitrariness of Israeli reliance on administrative detention is allowed to slip from view now that his strike is over. Instead, knowing what we have come to know, it is the responsibility of all of us to do all we can to discredit and force the abandonment of administrative detention by Israel, and as well, challenge its role in the United States and elsewhere. A fitting tribute to Mr. Adnan’s hunger strike would be to put opposition to administrative detention on the top of the human rights agenda throughout the world. We should begin by refusing to use the phrase ‘administrative detention,’ rechristening it as ‘administrative torture’ or ‘lawless captivity,’ and associate with past colonial and present authoritarian tendencies of ‘democratic’ governments.

 

            And finally, we will know the enduring significance of Mr. Adnan’s self-sacrifice by what takes place in the future. Will this event, possibly along with other influences, inspire a greater commitment to the Palestinian struggle for peace, justice, and liberation in occupied Palestine and throughout the world? Maybe ‘the regional threat’ that was being referred to by the Israeli official justifying Mr. Adnan’s detention was an indirect, and hopefully accurate reference to the growing impact of the positive sides of the Arab Spring, that is, as an occasion prompting a further awakening of self-empowerment among Palestinians both in relation to their struggle and in their renewed quest for unity among themselves. In effect, let us hope that Khader Adnan’s bravery becomes contagious and will be remembered as a charismatic event in the long narrative of the Palestinian struggle for self-determination.


           

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Saving Khader Adnan’s Life Saves Our Own Soul

18 Feb


             The world watches as tragedy unfolds beneath its gaze as Khader Asnan enters his 63rd day as a hunger striker in an Israeli prison being held under an administrative detention order without trial, without charges, and without any indication of the evidence against him. From the outset of his brutal arrest by scores of soldiers, featuring blindfolding, cuffing, and physical roughness in the middle of the night, a gratuitous ritual enacted the presence of his wife and young daughters Khader Adnan has been subject to the sort of inhumane and degrading treatment that is totally unlawful and inexcusable, and an assault on our moral justification. At present, approximately 300 other Palestinians are being held in administrative detention, and Mr. Adnan has indicated that his protest is also on their behalf, and indeed against the practice of administrative detention itself.

 

            The only plausible explanation of such Israeli behavior is to intimidate by terrifying all Palestinians who have lived for almost 45 years under the yoke of an oppressive occupation that continuously whittles away at Palestinian rights under international humanitarian law, especially their right to self-determination, which is encroached upon every time a new housing unit is added to the colonizing settlements that dot the hilltops surrounding Jerusalem and throughout the West Bank. While Palestinian prospects of a viable political future are continuously diminished by Israeli expansionism the world politely watches in stunned silence. Only resistance from within and solidarity worldwide can provide the Palestinians with hope about their future. They have been failed over and over again by the UN, by the EU, by their Arab neighbors, and above all by that global leader beholden to Israel whose capital is in Washinton, D.C.! It is only against this broader background that the importance of Khader Adnan’s resistance to the continuing struggle of Palestinians everywhere can begin to be appreciated as a political act as well as an insistence on the sacred dignity of the human person.

 

            The case of Khader Adnan is a revealing microcosm of the unbearable cruelty of prolonged occupation, and the contrast that is drawn in the West between the dignity of a single Israeli prisoner held in captivity and the steadfast refusal to be attentive to the abuse of thousands of Palestinians languishing in Israeli jails through court sentence or administrative order.  Mr. Adnan’s father poignantly highlighted this contrast a few days ago by reference to Gilad Shalit, the Israeli soldier held by Hamas in captivity for several years and recently released in good health: “Where are the mother and father of Gilad Shalit? Do they not feel for me in this humanitarian case? Where are they?” The comparison pointedly suggests that it is Mr. Adnan who is the more deserving of such a global outpouring of concern: “My son was arrested from his house, from among his wife and children, was taken prisoner. He was not carrying any weapon. Whereas Shalit was fighting against the people of Gaza, and destroying their homes, and firing upon, and Shalit was released.” In fact, Shalit has not been personally associated with violence against the Palestinians and their property, but he was operating as a member of the IDF that has been consistently engaged in such activity, frequently in stark violation of international humanitarian law. While Shalit was being held foreign authority figures, from the UN Secretary General on down, displayed their empathy not only for Shalit but for the intense anxiety experienced by Israelis concerned for the wellbeing of Shalit, but these same personalities are notably silent in the much more compelling ordeal taking place before our eyes in the form of Mr. Adnan’s captivity seemingly unto death. It should not be surprising that surviving family members of IRA hunger strikers should step forward to express solidarity with Mr. Adnan and the compare the Irish transforming acts of resistance in 1981 (ten hunger strikers died, and Britain shifted from counterterrorism to a politics of reconciliation) to that of the Palesinians, increasingly referring to Khader Adnan as the West Bank Bobby Sands.

 

            And who is Khader Adnan? We do not know very much about him except that he is a member of the Islamic Jihad Party, a 33-year old father of two young daughters, a baker by profession, and viewed with respect and affection by his neighbors. There are no accusations against him that implicate him in violence against civilians, although he has a history of imprisonment associated with his past activism. A fellow prisoner from an earlier period of confinement in Ashkelon Prison, Abu Maria, recalls Mr. Adnan’s normalcy, humanity, and academic demeanor while sharing a cell, emphasizing his passionate dedication to informing other imprisoned Palestinians about the history and nature of the conflict: “Prison was like a university in those times and he was one of the professors.” Commenting on his hunger strike that has brought him extreme pain, Abu Maria says he is convinced that Khader Asnan wants to live, but will not at the price of enduring humiliation for himself and others held in administrative detention: “He is showing his commitment and resistance in the only way he can right now, with his body.”

 

            Addameer, the respected Palestinian NGO concerned with prisoner issues, “holds Israel accountable for the life of Khader Adnan, whose health has entered an alarmingly critical stage that will now have irreversible consequences and could lead to his fatal collapse at any moment.” Physicians who have observed his current condition conclude that, at most, Mr. Adnan could live a few more days, saying that such a hunger strike cannot be sustained beyond 70 days in any event. Any attempt at this stage to keep Mr. Adnan alive by forced feeding would be widely viewed as a violation of his right to life and is generally regarded as a type of torture.

 

            Finally, the reliance by Israel on administrative detention in cases of this sort is totally unacceptable from the perspective of international law, including the Geneva Conventions, especially so with no disclosure of the exceptional circumstances or evidence that might warrant for reasons of imminent security the use of such an extra-legal form of imprisonment for a few days. Given the number of Palestinians being held in a manner similar to that of Mr. Adnan, it is no wonder that sympathy hunger strikes among many Palestinians in and out of Israeli jails are underway as expressions of solidarity. Have we not reached a stage in our appreciation of human rights that we should outlaw such barbarism by state authorities, which is cunningly shielded from critical scrutiny by the anonymity and bureaucratic neutrality of the term ‘administrative detention’? Let us hope and make sure that the awful experience of Khader Adnan does not end with his death, and let us hope and do everything in our power to encourage a worldwide protest against both administrative detention and prisoner abuse and by the government of Israel, and in due course elsewhere. The Palestinian people have suffered more than enough already, and passivity in the face of such state crimes is an appalling form of complicity. We should expect more from our governments, the UN, human rights NGOs, and ourselves!

 

            



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Help End the Hunger Strike of Khader Adnan

15 Feb

I am publishing here my press release of today expressing urgent concern about the fate of Khader Adnan, a Palestinian activist, who is near death resulting from his continuing hunger strike that expresses his refusal to accept the humiliating conditions of imprisonment without charges and accompanied by an Israeli court approved denial of visitation rights to his wife. Please do whatever you can to exert pressure to obtain the immediate release of Mr. Adnan, and to make the world aware that Israel is responsible for respecting his rights and protecting his wellbeing.  The text below is released under the auspices of the UN Office of the High Commissioner of Human Rights, and prepared in my role as Special Rapporteur for Occcupied Palestine of the Human Rights Council.

*****

> Israel: UN rights expert appeals for international help for a Palestinian
> prisoner on hunger strike
>
> CAIRO / GENEVA (15 February 2012) – The United Nations Special Rapporteur
> on the situation of human rights in the Palestinian territories occupied
> since 1967, Richard Falk, expressed his urgent and extreme concern
> regarding the situation of Palestinian prisoner Khader Adnan, and urged
> the international community to intervene on his behalf.
>
> “I call on the international community, especially States with close
> relations with Israel, to urge the Israeli Government to fulfill its
> responsibilities under international law, most urgently with regard to Mr.
> Adnan,” the human rights expert said. Mr. Adnan, whose life is reportedly
> in jeopardy, has maintained a hunger strike for 60 days in response to the
> humiliating circumstances of his imprisonment without charges by the
> Government of Israel.
>
> “In view of the emergency of his situation, the Government of Israel must
> take immediate and effective action to safeguard Mr. Adnan’s life, while
> upholding his rights,” stressed the Special Rapporteur, who is currently
> undertaking a fact-finding mission to the region.
>
> Mr. Falk also called on the Government of Israel to respect its legal
> obligations pertaining to the several thousand Palestinians it has
> imprisoned. “The improper treatment of thousands of Palestinian prisoners
> by the Government of Israel should be of great concern to the
> international community, and it is a problem that I am paying close
> attention to in the context of my ongoing visit to the region.”
>
> The Special Rapporteur will convene a press conference at the end of his
> regional visit, on 20 February in Amman, and will submit a full report on
> his mission to the Human Rights Council in June 2012.
>
> ENDS
>
> In 2008, the UN Human Rights Council designated Richard Falk (United
> States of America) as the fifth Special Rapporteur on the situation of
> human rights on Palestinian territories occupied since 1967. The mandate
> was originally established in 1993 by the UN Commission on Human Rights.
>
> Learn more about the mandate and work of the Special Rapporteur:
> http://www2.ohchr.org/english/countries/ps/mandate/index.htm
>
> OHCHR Country Page – Occupied Palestinian Territories:
> http://www.ohchr.org/EN/countries/MENARegion/Pages/PSIndex.aspx
>
> OHCHR Country Page – Israel:
> http://www.ohchr.org/EN/Countries/MENARegion/Pages/ILIndex.aspx
>
> For more information and media requests, please contact Kevin Turner (+41
> (0)79 509 0557 / kturner@ohchr.org) or write to sropt@ohchr.org.
>
> For media inquiries related to other UN independent experts:
> Xabier Celaya, OHCHR Media Unit (+ 41 22 917 9383 / xcelaya@ohchr.org)
>
> UN Human Rights, follow us on social media:
> Facebook: https://www.facebook.com/unitednationshumanrights
> Twitter: http://twitter.com/UNrightswire
> YouTube: http://www.youtube.com/UNOHCHR
>
> Check the Universal Human Rights Index: http://uhri.ohchr.org/en
>

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When is an ‘NGO’ not an NGO? Twists and Turns Beneath the Cairo Skies

14 Feb


             A confusing controversy between the United States and Egypt is unfolding. It has already raised tensions in the relationship between the two countries to a level that has not existed for decades. It results from moves by the military government in Cairo to go forward with the criminal prosecution of 43 foreigners, including 19 Americans, for unlawfully carrying on the work of unlicensed public interest organizations that improperly, according to Egyptian law, depend for their budget on foreign funding. Much has been made in American press coverage that one of the Americans charged happens to be Sam LaHood, son of the present American Secretary of Transportation, adopting a tone that seems to imply that at least one connected by blood to an important government official deserves immunity from prosecution.

           

            Washington has responded with high minded and high profile expressions of consternation, including a warning from Hilary Clinton that the annual aid package for Egypt of $1.5 billion (of which $1.3 billion goes to the military) is in jeopardy unless the case against these NGO workers is dropped and their challenged organizations are allowed to carry on with their work of promoting democracy in Egypt. And indeed the U.S. Congress may yet refuse to authorize the release of these funds unless the State Department is willing to certify that Egypt is progressing toward greater democratization. President Obama has indicated his intention to continue with the aid at past levels, given the importance of Egypt in relation to American Middle Eastern interests, but as in so many other instances, he may give way if the pressure mounts. The outcome is not yet clear as an ultra-nationalistic Congress may yet thwart Obama’s seemingly more sensible response to what should have been treated as a tempest in a teapot, but for reasons to be discussed, has instead become a cause celebre.

 

            The Americans charged are on the payroll of three organizations: International Republican Institute (IRI), Democratic National Institute (DNI), and Freedom House. The first two organizations get all of their funding from the U.S. Government, and were originally founded in 1983 after Ronald Reagan’s speech to the British Parliament in which he urged that help be given to build the democratic infrastructure of newly independent countries in the non-Western world put forward as a Cold War counter-measure to the continuing appeal of Marxist ideologies. From the moment of their founding IRI and DNI were abundantly funded by annual multi-million grants from Congress, either directly or by way of such governmental entities as the U.S. Assistance for International Development  (USAID) and the National Endowment for Democracy. IRI and DNI claim to be non-partisan yet both are explicitly affiliated with each of the two political parties dominant in the United States, with boards, staffs, and consultants drawn overwhelmingly from former government workers and officials who are associated with these two American political parties. The ideological and governmental character of the two organizations is epitomized by the nature of their leadership. Madeline Albright, Secretary of State during the Clinton presidency, is chair of the DNI Board, while former Republican presidential candidate and currently a prominent senator, John McCain, holds the same position in the IRI. Freedom House, the third main organization that is the target of the Egyptian crackdown also depends for more than 80% of its funding from the National Endowment for Democracy and is similarly rooted in American party politics. It was founded in 1941 as a bipartisan initiative during the Cold War by two stalwarts of their respective political parties, Wendell Wilkie and Eleanor Roosevelt.

 

            Against this background the protests from Washington and the media assessments of the controversy seem willfully misleading. Since when does Washington become so agitated on behalf of NGOs under attack in a foreign country? Even mainstream eyebrows should have been raised sky high when Martin Demsey, currently the Chairman of the Joint Chiefs, while visiting Cairo was reported to have interceded with his military counterparts on behalf of these Americans made subject to a travel ban and faced with the threat of prosecution. When was the last time you can recall an American military commander interceding on behalf of a genuine NGO? To paraphrase Bob Dylan, ‘the answer my friends, is never.’ So even the most naïve among us should be asking ‘what is really going on here?’

 

            The spokespersons for the organizations treat the allegations as a simple case of interference with the activities of apolitical and benevolent NGOs innocently engaged in helping Egyptians receive needed training and guidance with respect to democratic practices, especially those relating to elections and the rule of law. Substantively such claims seem more or less true at present, at least here in Egypt. Sometimes these entities are even referred to by the media as ‘civil society institutions,’ which reflects, at best, a woeful state of unknowing, or worse, deliberate deception. Whatever one thinks of the activities of these actors, it is simply false to conceive of them as ‘nongovernmental’ or as emanations of civil society. It would be more responsive to their nature if such entities were described as ‘informal governmental organizations.’ (IGOs)

 

            It is hardly surprising that a more honest label is avoided as its use would call attention to the problematic character of the undertakings: namely, disguised intrusions by a foreign government in the internal politics of a foreign country with fragile domestic institutions of government by way of behavior that poses at the very least a potential threat to its political independence. With such an altered interpretation of the controversy assumes a different character. It becomes quite understandable for the Egyptian government seeking to move beyond its authoritarian past to feel the need to tame these Trojan Horses outfitted by Washington. It would seem sensible and prudent for Egypt to insist that such organizations, and especially those associated with the U.S. Government, be registered and properly licensed in Egypt as a minimum precondition for receiving permission to carry on their activities in the country, especially on matters as sensitive as are elections, political parties, and the shaping of the legal system. Surely the United States, despite its long uninterrupted stable record of constitutional governance, would not even consider allowing such ‘assistance’ from abroad.  If it had been proposed by, say, Sweden, an offer of help with democracy would have been immediately rebuffed, and rudely dismissed as an insult to the sovereignty of the United States  despite Sweden being a geopolitical midget and U.S. being the gorilla on the global stage.

 

            And these Washington shrieks of wounded innocence, as if Cairo had no grounds whatsoever for concern, are either the memory lapses of a senile bureaucracy or totally disingenuous. In the past it has been well documented that IRI and DNI were active in promoting the destabilization of foreign governments that were deemed to be hostile to the then American foreign policy agenda. The Reagan presidency made no secret of its commitment to lend all means of support to political movements dedicated to the overthrow of left-leaning governments in Latin America and Asia. The most notorious instances involving the use of IRI to destabilize a foreign government is well known among students of American interventionist diplomacy. For instance IRI funds were extensively distributes to anti-regime forces to get rid of the Aristide government in Haiti, part of a dynamic that did lead to a coup in 2004 that brought to power reactionary political forces that were welcomed and seemed far more congenial to Washington’s ideas of ‘good governance’ at the time. IRI was openly self-congratulatory about its role in engineering a successful effort to strengthen ‘center and center/right’ political parties in Poland several years ago, which amounts to a virtual confession of interference with the dynamics of Polish self-determination.

 

            Although spokespersons for these organizations piously claim in their responses to these recent Egyptian moves against them to respect the sovereignty of the countries within which they operate, and especially so in Egypt. Even if these claims are generally true, ample grounds remain for suspicion and regulation, if not exclusion, on the part of a territorial government. An insistence upon proper regulation seems entirely reasonable if due account is taken of the numerous instances of covert and overt intervention by the United States in the political life of non-Western countries.

 

            Against such a background, several conclusions follow: first, the individuals being charged by Egypt are not working for genuine NGOs or civil society institutions, but are acting on behalf of informal government organizations or IGOs; secondly, the specific organizations being targeted, especially the DNI and IRI are overtly ideological in their makeup, funding base, and orientation; and thirdly, there exist compelling grounds for a non-Western government to regulate or exclude such political actors when due account is taken of a long American record of interventionary diplomacy. Thus the Washington posture of outrage seems entirely inappropriate once the actions of the Egyptian government are contextually interpreted.

 

            Yet the full story is not so simple or one-sided. It needs to be remembered that the Egyptian governing process in the year since the uprising that led to the collapse of the Mubarak regime has been controlled by the Supreme Council of the Armed Forces (SCAP), which is widely believed by the Egyptian public to be responsible for a wave of repressive violence associated with its fears that some democratic demands are threatening their position and interests in the country. A variety of severe abuses of civilian society have been convincingly attributed to the military.  As well the military is responsible for a series of harsh moves against dissenters who blog or otherwise act in a manner deemed critical of military rule. In effect, the Egyptian government, although admittedly long concerned about these spurious NGOs operating within its territory even during the period of Mubarak rule, is itself seemingly disingenuous, using the licensing and funding technicalities as a pretext for a wholesale crackdown on dissent and human rights so as to discipline and intimidate a resurgent civil society and a radical opposition movement that remains committed to realizing the democratic promise of the Arab Spring.

 

            There is another seemingly strange part of the puzzle. Would we not expect the United States to side the Egyptian military with which it worked in close harmony during the Mubarak period. Why would Washington not welcome this apparent slide toward Mubarakism without Mubarak? Was this not America’s preferred outcome in Egypt all along, being the only outcome that would allow Washington to be confident that the new Egypt would not rock the Israeli boat or otherwise disturb American interests in the region. There is no disclosure of U.S. motives at this time for its present seemingly pro-democracy approach, but there are grounds for thinking Washington may be reacting to the success of the Muslim Brotherhood and the Nour (Salafi) Party in the Egyptian parliamentary elections and even more so to the apparent collaboration between these parties and the SCAF in planning Egypt’s immediate political future. In such a setting it seems plausible that sharpening state/society tensions in Egypt by siding with the democratic opposition would keep alive the possibility of a secular governing process less threatening to U.S./Israeli interests, as well as inducing Egypt itself to adopt a cautious approach to democratic reform. Maybe there are different explanations more hidden from view, but what seems clear is that both governmental in this kafuffle have dirty hands and are fencing in the dark at this point, that is, mounting arguments and counter-arguments that obscure rather than reveal their true motivations.

 

            In the end, Egypt, along with other countries, is likely to be far better off if it prohibits American IGOs from operating freely within its national territorial space, especially if their supposed mandate is to promote democracy as defined and funded by Washington. This is not to say that Egyptians would not be far better off if the SCAF allowed civilian rule to emerge in the country and acted in a manner respectful of human rights and democratic values. In other words what is at stake in this seemingly trivial controversy lies hidden by the smokescreens relied upon by both sides in the dispute: weighty matters of governance and democracy that could determine whether the remarkable glories of the Arab Spring mutate in the direction of a dreary Egyptian Autumn, or even Winter. 

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The Menace of Present & Future Drone Warfare

12 Feb


 

            After the atomic bombs were dropped on Hiroshima and Nagasaki, and the colossal scale of devastation disclosed, there was a momentary embrace of sanity and rationality by world leaders and cultural commentators. There was a realization that living with such weaponry was at best a precarious journey into the future, and far more likely, an appointment with unprecedented human catastrophe if not apocalypse. This dark mood of foreboding did produce some gestures toward nuclear disarmament tabled initially by the U.S. Government, but in a form that reasonably struck others at the time, especially the Soviet Union, as a bad bargain—the U.S. was proposing getting rid of the weapons for the present, but retaining the materials, the technology, and the experience needed to win handily any nuclear rearmament race. In other words, the United States offered the world a Faustian Bargain that rested on bestowing trust upon the dominant geopolitical actor on the global stage, and depended crucially on Soviet willingness to go along on such a basis, an option that never seriously tempted the Stalinist approach to world order.

 

            It should not seem surprising then or now that given the political consciousness of those running the strongest and richest modern states, that this kind of one-sided deal was not an attractive response to nuclear weaponry. Even the governments most closely allied with the United States in World War II, the United Kingdom and France, were unwilling to forego the status and claimed security benefits of becoming second tier nuclear weapons state. And of course, America’s rivals, first, the Soviet Union and later China, never hesitated to develop their own nuclear weapons capability, interpreting security and global stature through the universal geopolitical optic of countervailing hard power, that is, maximizing military capabilities to defend and attack. Thus disarmament faded into the obscurity of wishful thinking, and in its place a costly and unstable nuclear arms race ensued during the whole of the Cold War, with an array of situations that came close to subjecting humanity to the specter of a nuclear war. That this worst of all nightmares never materialized provides little reassurance about the future, especially if public and elite complacency about the risk of nuclear warfare persists.

 

            What is less appreciated than this failure to eliminate the weaponry in the immediate aftermath of World War II was the adoption and implementation of a Plan B.  The United States pushed hard for the negotiations that led in 1968 to the Nuclear Nonproliferation Treaty, which was successfully marketed to most states in the world. The NPT represented a one-sided bargain in which non-weapons states agreed to give up their weapons option in exchange for two commitments by nuclear weapons states: to share fully the non-military benefits of nuclear technology, especially relating to producing energy that was early on expected to be both clean and cheap; and to undertake in good faith efforts to achieve nuclear disarmament as the earliest possible time, and even to go further, and to work toward the negotiation of general and complete disarmament. This nonproliferation agreement over the years, although a success in Western realist circles, has experienced a number of discrediting setbacks: a few countries with nuclear weapons ambitions stayed outside the treaty and managed to acquire the weaponry without adverse consequences to themselves (India, Pakistan, Israel), while others (Iraq, Iran) have been attacked or threatened because they were suspected of seeking nuclear weapons; there has been a virtual failure of will to seek nuclear disarmament despite a unanimous World Court reaffirmation of the NPT obligations in its 1996 Advisory Opinion on The Legality of Nuclear Weapons; and there has been a discriminatory pattern of geopolitical management of the NPT, most notably ignoring Israel’s nuclear weapons program while treating Iran’s alleged pursuit of a breakout capability as justifying recourse to war.

 

            This nonproliferation approach has been accompanying by three massive forms of deception that continues to mislead public opinion and discourage serious debate about the benefits of nuclear disarmament even at this late stage: First, the fallacious implication that the states that do not possess nuclear weapons are currently more dangerous for world peace than the states that possess, develop, and deploy these weapons of mass destruction, and have used them in the past; secondly, that periodic managerial moves among nuclear weapons states, in the name of arms control, are steps in the direction of nuclear disarmament—nothing could be further from the truth as arms control aims to save money and stabilize reliance on nuclear weaponry by way of deterrence, and is generally averse to getting rid of the weaponry; thirdly, the phony claim, endorsed by Barack Obama in his Prague speech of 2009 on the theme, that obtaining a world without nuclear weapons is to be sure an ‘ultimate’ goal to be affirmed, but that it is not a political project that can be achieved in real time by way of a phased and verified nuclear disarmament treaty. In actuality, there is no genuine obstacle to prudently phasing out these weapons over the course of a decade or so. What blocks the elimination of nuclear weapons is only the dysfunctional refusal of the nine nuclear weapons states to give up the weaponry.

 

            It should be appreciated that this two-tier approach to nuclear weaponry is a departure from the approach taken to other weapons of mass destruction—that is, either prohibiting a weapon altogether or allowing its use in a manner consistent with the principles of customary international law bearing on the conduct of war (proportionality, discrimination, necessity, and humanity). Regimes of unconditional prohibition exist with respect to biological and chemical weapons, and are respected, at least outwardly, by the main global geopolitical actors. Why the difference? The atom bombs dropped on Japan were to a degree, despite the havoc, legitimized because used by the prevailing side in what was claimed to be military necessity and perceived as a just war. The contrast with the prohibition of chemical weapons widely used by the German losing side in World War I illustrates the lawmaking role of geopolitically dominant political actors that impose their will on the evolution of international law, especially in the security domain.

 

            The U.S. reliance on attack drones to engage in targeted killing, especially in third countries (Yemen, Somalia, Ethiopia, Pakistan) has raised controversial international law issues of sovereign rights in interaction with lethal acts of war, especially those far removed from the zone of live combat. The increasing reliance on drones during the Obama presidency has produced unintended deaths, civilians in the vicinity of the target and attacks directed at the wrong personnel, as with the NATO helicopter attack that killed 24 Pakistani soldiers who had been deployed near the Afghan border on November 25, 2011, provoking a major international incident (although not a drone attack, it was linked by angered Palistani officials to similar mis-targeting by drones). There are also unconfirmed reports of drone follow up raids at sites of targeted killing that seem directed at those who mount rescue operations or arrange funerals for prior victims. As with the Bush torture debate the political leadership in Washington has turned for justifications to government lawyers who have responded by developing drone legal briefs that seem somewhat analogous to the notorious Yoo ‘torture memos.’ There are, however, some differences in the two contexts that work against equating the two controversies about post-9/11 war making.

 

            For one thing, torture has a long history, having been practiced by governments for centuries, and its relatively recent prohibition is embedded in a clear norm criminalizing torture that is contained in the International Torture Convention of 1984. Torture is also enumerated as one of the Crimes Against Humanity in the statute of the International Criminal Court. Drone technology adapted to serve as a battlefield weapon is, in contrast, of extremely recent origin. Nothing in international law exists that is comparably specific with respect to drone attacks to the legal repudiation of torture. There is some resemblance between efforts by Obama law officials to stretch the conception of self-defense beyond previously understood limits to justify targeted killing and the Bush lawyers who claimed that water boarding was not torture. Expanding the prior understanding of the legal right of self-defense represents a self-serving reinterpretation of this core international legal norm by the U.S. Government. It seems opportunistic and unpersuasive and seems unlikely to be generally accepted as a reframing of the right of self-defense under international law.

 

            Perhaps, the most important difference between the torture and drone debates has to do with future implications. Although there are some loopholes involving extraordinary rendition and secret CIA operated overseas black sites, torture has been credibly prohibited by President Obama. Beyond this, the repudiation of torture has been understood in a manner that conforms to the general international consensus rather than the narrowed conception insisted upon by the Bush-era legalists. In contrast, drones seem destined to be central to operational planning for future military undertakings of the United States, with sharply escalating appropriations to support both the purchase of increasing numbers and varieties of drone. The government is  engaging in a major research program designed to make drones available for an expanding range of military missions and to serve as the foundation of a revolutionary transformation of the way America will fight future wars. Some of these revolutionary features are already evident: casualty-free military missions; subversion of territorial sovereignty; absence of transparency and accountability; further weakening of political constraints on recourse to war.

 

            Future war scenarios involve attacks by drones swarms, interactive squadrons of drones re-targeting while in a combat zone without human participation, and covert attacks using mini-drones. A further serious concern is the almost certain access to drone technology by private sectors actors. These musings are not science fiction, but well financed undertakings at  or beyond the development stage. It is in these settings of fhere, especially, where the analogy to nuclear weapons seems most pertinent, and discouraging. Given the amount invested and the anticipated profitability and utility of drones, it may already be too late to interrupt their development, deployment, and expanding sphere of use. Unlike nuclear weaponry, already some 50 countries reportedly possess drones, mainly adapted to surveillance. As with nuclear weaponry, the United States, and other leading political actors, will not agree to comprehensive prohibitions on the use of drones for lethal purposes.

 

            If this line of reasoning is generally correct, there are two likely futures for attack drones: an unregulated dispersion of the weaponry to public and private actors with likely strategic roles undermining traditional international law limits on war making and public order; or a new non-proliferation regime for drones that permits all states to possess and use surveillance drones within sovereign space and allows some states to make discretionary use of drones globally and for attack purposes until a set on constraining regulations can be agreed upon by a list of designated states. That is, drone military technology will perpetuate the two-tier concept of world order that has taken shape in relation to nuclear weapons, and reflects the consensus that both nuclear disarmament and unrestricted proliferation of nuclear weaponry are unacceptable. In this regard, a counter-proliferation regime for drones is a lesser evil, but still an evil.

 

            The technological momentum that has built up in relation to drones is probably too strong to be challenged politically. The military applications are too attractive, the technology is of a cutting edge fantasy quality, the political appeal of war fighting that involves minimum human risk is too great. At the same time, for much of the world this kind of unfolding future delivers a somber message of a terrifying unfolding vulnerability. At present, there seems to be no way to insulate societies from either intrusive and perpetual surveillance or the prospect of targeted killing and devastation conducted from a remote location. It may be contended that such an indictment of drones exaggerates their novelty. Has not the world lived for decades with weapons of mass destruction possessed by a small number of non-accountable governments and deliverable anywhere on the planet in a matter of minutes? This is superficially true, and frightening enough, but the catastrophic quality of nuclear weaponry and its release of atmospheric radioactivity operates as an inhibitor of uncertain reliability, while with drone their comparative inexpensiveness and non-apocalyptic character makes it much easier to drift mindlessly until an unanticipated day of reckoning occurs by which time all possibilities of control will have been long lost.

 

            As with nuclear weaponry, climate change, and respect for the carrying capacity of the earth, we who are alive at present may be the last who have even the possibility of upholding the life prospects of future generations. It seems late, but still not too late to act responsibly, but we will not be able to make such claims very much longer. Part of the challenge is undoubtedly structural. For most purposes, global governance depends on cooperation among sovereign states, but in matters of war and peace the world order system remains resolutely vertical and under the control of geopolitical actors, perhaps as few as one, who are unwilling to restrict their military activities to the confines of territorial boundaries, but insist on their prerogative to manage coercively the planet as a whole. When it comes to drones the fate of humanity is squeezed between the impotence of state-centric logic and the grandiose schemes of the geopolitical mentality. 

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Turkey’s Foreign Policy: Zero Problems with Neighbors Revisited

8 Feb


            Pundits in Europe and North America in recent months have delighted in citing with a literary smirk ‘zero problems with neighbors,’ which has been the centerpiece of Ahmet Davutoglu’s foreign policy agenda since he became Foreign Minister on May 1, 2009. Mr. Davutoglu had previously served as Chief Advisor to both the Prime Minister and Foreign Minister ever since the AKP came to power in 2002, and was known in those years as the ‘architect’ behind the scenes. Critics of the zero problems approach point to the heightened Turkish tensions with Syria and Iraq, the persisting inability of Ankara to overcome the hostile fallout from Mavi Marmara incident with Israel, and even the revived salience of the long unresolved dispute with the Armenian diaspora sparked by a new French law that makes the denial of genocide associated with the 1915 massacres a crime and has led to a dramatic worsening of Turkish-French relations.

 

            Troubles to be sure, but should these be interpreted as ‘failures,’ and more precisely as ‘Turkish failures’? Perhaps, Davutoglu was insufficiently cautious, or alternatively too optimistic, when he articulated the zero problems diplomacy, but was it not at the time an accurate way of signaling a new dawn for Turkey’s approach to neighbors, especially its Arab neighbors, and actually, to the world as a whole. And Davutoglu implemented his lofty vision with a dizzying series of initiatives that opened long locked doors. He also made it clear that the neighborhood was not to be understood in a narrow geographical sense, but rather in as broad a sense as disclosed by cultural and historical affinities and mutual strategic interests. Davutoglu was eager not only to banish lingering bad memories associated with centuries of Ottoman rule over much of the Arab world, as well as to renew connections with countries that shared Turkic and Muslim identities.

 

            It should be recalled that Turkish foreign policy began charting this new course years before Davutoglu became Foreign Minister, and thus was a shift in worldview that was shared with Recip Tayyip Erdogan and Abudllah Gul, the two dominant political leaders during the past decade.  Indeed, both men deserve some of the credit, and a share of the responsibility, for steering the Turkish ship of state into such mainly uncharted waters of diplomatic initiative.

 

            In an important sense, the turning point came in 2003 when the Turkish government, after sending some mixed signals to Washington, finally refused to allow the United States to use its territory to stage an invasion of Iraq. At the time the anti-AKP domestic opposition challenged this unprecedented act of geopolitical insubordination by Ankara as the biggest mistake in the whole of Turkish republican history. In retrospect, this opting out of the invasion of Iraq constituted a transformational moment for Turkey that demonstrated to its neighbors and the world, and even to itself, that Turkey could and would think and act for itself when it comes to foreign policy, that the hierarchical alliances of the Cold War period were over, and that Washington should no longer take Ankara’s collaboration for granted. And yet this move did not mean, as some critics in both Turkey and the United States wrongly claimed, a turn toward Islam and away from the West or its continuing involvement in Western security arrangements. Even during the Iraq War Turkey allowed the Incirlik Air Base to be used by American combat aircraft, including for bombing missions. As recently shown, Turkey still values its NATO ties even to the extent of allowing radar stations to be deployed on its territory that is linked to a missile defense system that seems mainly intended to protect Europe, Israel, and the Gulf from Iran in the immediate future and possibly Russia in the long-term.

 

            By now it is almost forgotten that it was Turkey that encouraged peace talks between Syria and Israel to resolve their conflict that seemed to be headed for success until their abrupt breakdown, a development attributed at the time to the Israeli attacks on Gaza at the end of 2008, but in retrospect better understood as the unwillingness of Israel to give up its 1967 conquest and subsequent occupation of the Golan Heights. Turkey also sought to be a peacemaker further afield in the Balkans and Caucasus, doing the seemingly impossible, bringing Bosnia and Serbia together in a manner that moved these two antagonistic governments on a path leading to normalization and at least a cold peace. Even more ambitiously, in collaboration with Brazil, Turkey used its new stature as an independent regional player in May 2010 to persuade Tehran to accept an arrangement for the storage of a large portion of Iran’s enriched uranium in Turkey, thereby demonstrating the plausibility of a peaceful alternative to the United States/Israel posture of sanctions and warmongering.

 

            To be sure, the earlier sensible effort to have friendly relations with Syria has now badly backfired, but not until the regime in Damascus started the massive shooting of its citizens and refused to meet the demands of its people for far reaching reforms.  Arguably, the same reversal of outlook in Ankara occurred in relation to Libya after Qaddafi threatened to massacre his opposition, leading eventually to extending some Turkish humanitarian support for the UN-backed NATO intervention in Libya in 2011 that shaped the outcome of an ongoing internal struggle for control of the Libyan political future. Also, there is no doubt that the refusal of the European Union to shift its one-sided stance on Cyprus that is punitive toward Turkey has had some serious consequences. It has soured relations with Greece, producing a temporary deterioration that has taken place despite the Turkish show of reasonableness and exhibiting a spirit of compromise in relation to Cyprus. And, together with the recent Islamophobic surge in Europe, this perceived unfairness to Turkey with respect to Cyprus has reinforced the weakening of an earlier Turkish commitment to qualify for membership in the EU. 

 

            Even with Israel, despite the strong sympathies of the Turkish public with the struggle of the Palestinians, the AKP leadership has done its best to restore normalcy to the relationship between the two countries. After all, the May 31, 2010 attack by Israel’s navy in international waters on the Mavi Marmara carrying humanitarian activists and assistance to Gaza and challenging the Israeli blockade was not only a flagrant breach of international law but resulted in the death of nine Turkish passengers. Turkey has demanded an official apology and compensation for the families of the victims, a reasonable set of expectations that was apparently on the verge of acceptance by Tel Aviv, but collapsed at the last hour when challenged by the internal political opposition to Netanyahu led by the super-hawk foreign minister, Avigdor Liebermann, now under government investigation for fraud.

 

            What this brief overview argues is that Turkey has consistently tried to avert recourse to intervention and war in the Middle East and to promote diplomatic approaches that rely to the extent possible on soft power. It has, to be sure, experienced several geopolitical rebuffs, as in relation to its efforts to end the confrontation with Iran, impressively refusing to stay in line behind the bellicose leadership of the United States and Israel. Davutoglu has correctly affirmed Turkey’s resolve to act on the principled basis of its values and convictions, as well as strategic calculations of its interests, in the post-Cold War politics of the region, and not blindly follow directives from Washington. Iran is a striking case where the Turkish approach, although seemingly incapable of stemming the drift toward war being mounted by the West, is both wiser and more likely to achieve the goal of reassuring the world that Tehran means what it says when it insists that it does not intend to acquire nuclear weapons. As in every other foreign policy setting, Davutoglu is exhibiting his belief that in the 21st century persuasion works better than coercion when it comes to achieving political goals without even considering the costs of death, devastation, and displacement.

 

            In sum, the zero problems with neighbors as a touchstone to Turkish foreign policy in the Middle East and the world needs to be understood as an aspiration and strong preference rather than as an invariable and inflexible guide to practice. There are too many contradictions embedded in the political realities of the contemporary world to be slavishly tied to a rigid foreign policy doctrine that is incapable of taking account of context and shifting perceptions and interests. For instance, in Syria and Libya the Turkish government was forced to choose between siding with a regime slaughtering its own people and backing a disorganized opposition in its heroic if clouded efforts to democratize and humanize the governing process.  Of course, there are suspicions that Turkey’s support for the anti-Assad insurgency also reflects a disguised preference for a Sunni opposition that is anchored, if at all, in the Muslim Brotherhood as compared to the secular authoritianism of the Damascus regime. As well, there are speculations that in the ongoing regional struggle for ascendancy Turkey would rather in the end side with Saudi Arabia and Egypt, reinforced by the United States, than Iran and a newly engaged Russia.

 

Zero problems needs to be understood as a preferred framework for addressing the relations between countries, not just governments, and in situations of strife choices must be made. Arguably Turkey went too far when it backed NATO in Libya and the UN Security Council with respect to Syria or not far enough when it failed to show support for the Green Revolution in Iran after the stolen elections of June 2009. These are difficult interpretative choices upon which reasonable persons of good faith can disagree. Whatever the policies pursued in specific situations,  they do not necessarily invalidate the principled positions articulated by Davutoglu since he became Foreign Minister. Davutoglu has repeatedly affirmed these principles as being as important for him as are realist calculations in shaping foreign policy in complex situations. Possibly, if the Green Revolution had shown more persistence and promise or the Iranian regime had engaged in more widespread killing of its people Turkey would have made a ‘Syrian choice.’

 

            Davutoglu on more than one occasion has expressed enthusiastic support for the upheavals grouped together under the banner of ‘the Arab Spring.’ He calls these upheavals great historical transformations that are irreversible, and expressions of a thirst by young people in their respective countries for lives of dignity and democratic freedoms. There is nothing that Turkey has done to thwart these high ideals.

 

            In this respect, I think it is possible to reach an assessment of Turkish foreign policy as of early 2012. It has charted a course of action based to the extent feasible on soft power diplomacy, taking numerous initiatives to resolve its conflicts with neighbors but also to offer its good offices to mediate and unfreeze conflicts between states to which it is not a party. Its credibility has become so great that Istanbul has replaced European capitals as the preferred venue for conflict resolution whether in relation to Afghanistan or even Iran, and despite its much publicized diplomatic differences with Washington. It is notable that despite Western annoyance with Ankara regarding Iran or resulting from the simmering dispute with Israel, the U.S. Government seems to favor Istanbul as the most propitious site for any prospective negotiations with Iran concerning its nuclear program.

 

            At the same time, as the policy reversals with respect to Syria and Libya illustrate, it is not always possible to avoid taking sides in response to internal struggles, although Turkey has delayed doing so to give governments in power the opportunity to establish internal peace. In a globalizing world boundaries are not absolute, and sovereignty must give way if severe violations of human rights are being committed by the regime. Even in such extreme circumstances armed intervention should always be a last resort, and one only undertaken in extreme instances on behalf of known opposition forces and in a manner that has a reasonable prospect of cumulative benefits at acceptable costs for the targeted society. Such conditions almost never exist, and so intervention under present world conditions is rarely if ever, in my judgment, justified, although bloodshed, oppression, and crimes against humanity may generate strong public and governmental support for interventionary diplomacy.

 

            We can only hope that Turkey stays the Dautoglu course, pursuing every opening that enables positive mutual relations among countries and using its diplomatic stature to encourage peaceful conflict resolution wherever possible. Rather than viewing ‘zero problems’ as a failure, it should be a time to reaffirm the creativity of Turkish foreign policy in the course of the last decade that has shown the world the benefits of soft power diplomacy, and a pattern that other governments might learn from while adapting to their own realities. This diplomacy, as supplemented by Turkey’s economic success and political stability, helps us appreciate the deserved popularity of and respect for the Turkish Prime Minister, Recep Tayyip Erdogan, throughout the region and the world.

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Support for BDS National Conference at the University of Pennsylvania

3 Feb

Due to scheduling conflicts I was unable to accept an invitation to speak at the 2012 National BDS Conference that has been organized by Penn BDS, a recognized student organization at the University of Pennsylvania, which happens to be my undergraduate college. I did agree to submit the statement to the conference that I post below in hopes of reaching more people who seek peace and justice in the Middle East, and an end to the long ordeal endured by the Palestinian people. BDS is a worthy cause that deserves the widest possible support from all those of good will with a concern about both the Israel/Palestine conflict and the unacceptable role being played by the United States Government in relation to the struggle and the region.

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Solidarity Statement of Richard Falk supporting BDS National Conference at the University of Pennsylvania, February 4, 2012

 

Greetings:

 

It is a cause of deep regret that I am not able to participate in this groundbreaking conference. I commend the conveners for taking this initiative in the face of efforts to intimidate and confuse by those who systematically oppose debate and free inquiry concerning the various dimensions of the Israel/Palestine conflict and its bearing on American foreign policy.

 

I have long supported the BDS as a constructive and creative movement that  raises awareness and mobilizes support for the Palestinian struggle to achieve a sustainable peace based on international law and a sense of justice. The BDS movement was originated by grassroots Palestinian activism, enjoys wide and growing support among Palestinians, and is a shining symbol of the seismic shift in Palestinian tactics of struggle and resistance from violent tactics to nonviolent militancy, and from the territorial confines of occupied Palestine to the world as a whole.

 

Such a shift is both principled and pragmatic, and deserves our encouragement and engagement in tangible ways. The targeting of companies and institutions that profit from Israel’s unlawful policies and practices is a creative and appropriate way for people from around the world to express solidarity with the Palestinian search for peace with justice. To seek sanctions is a means of exerting diplomatic and material pressure on Israel is light of its defiant refusal to accord the Palestinian people their rights under international law.

 

The BDS movement is certainly inspired by the anti-apartheid global campaign waged so effectively against the racist regime in South Africa, but it also has its own originality. It is notable that Israel’s style of governance and occupation is increasingly perceived as a form of apartheid, which has been recognized in the Statute of the International Criminal Court as a Crime Against Humanity.

 

I wish this conference the greatest possible success in spreading the word about the importance and relevance of the BDS campaign. It offers all Americans an excellent opportunity to become engaged and responsible citizens of conscience and offset the wildly partisan and unjust policies of the U.S. Government toward the conflict and its proper resolution.  

 

II/3/2012

Nuclear Free Middle East: Desirable, Necessary, and Impossible

28 Jan

Nuclear Free Middle East: Desirable, Necessary, and Impossible

            Finally, there is some argumentation in the West supportive of a nuclear free zone for the Middle East. Such thinking is still treated as politically marginal, and hardly audible above the beat of the war drums. It also tends to be defensively and pragmatically phrased as in the NY Times article by Shibley Telhami and Steven Kull (I.15..2012) with full disclosure title, “Preventing a Nuclear Iran.” The article makes a prudential argument against attacking Iran based on prospects of a damaging Iranian retaliation and the inability of an attack to destroy Iran’s nuclear program at an acceptable cost. The most that could be achieved for would be a short delay in Iran’s acquisition of weaponry, and maybe not even that. An attack seems likely to create irresistible pressure in Iran to everything possible to obtain a nuclear option with a renewed sense of urgency.

            This argument is sensibly reinforced by pointing to respected public opinion surveys that show Israeli attitudes to be less war-inclined than had been generally assumed. According to a Israeli recent poll, only 43% of Israelis favoring a military strike, while 64% favored establishing a nuclear free zone (NFZ) in the region that included Israel. In effect, then, establishing a NFZ that includes Israel would seem politically feasible, although not a course of action that would be entertained by the current Tel Aviv governmental political climate. We can conclude that the silence of Washington with respect to such an alternative approach to the dispute with Iran confirms what is widely believed, namely, that the U.S. Government adheres to the official Israeli line, and is not particularly sensitive to the wishes of the Israeli public even to the extent of serving America’s own strong national interest in finding a peaceful solution to the conflict.

            A variant of NFZ thinking has recently been attributed to Saudi Prince Turki Al-Faisal, former Saudi ambassador to the United States and once the head of Saudi intelligence. He too argues that NFZ is a better alternative than the military option, which he contends should be removed from the table. Prince Turki insists that sanctions have not altered Iran’s behavior. His proposal is more complex than simply advocating a NFZ. He would favor sanctions against Iran is there is convincing evidence that it is seeking nuclear weapons, but he also supports sanctions imposed on Israel if it does not disclose openly the full extent of its nuclear weapons arsenal.  His approach has several additional features: extending the scope of the undertaking to all weapons of mass destruction (WMD), that is, including biological and chemical weapons; establishing a nuclear security umbrella for the region by the five permanent members of the UN Security Council; and seeking a resolution of outstanding conflicts in the region in accordance with the Mecca Arab proposals of 2002 that calls for Israeli withdrawal from Palestinian territories and the Golan Heights occupied in 1967, as well as the political and commercial normalization of relations between Israel and the Arab world.

            Prince Turki warns that if such an arrangement is not soon put in place, and Iran proceeds with its nuclear program, other countries in the region, including Turkey, are likely to be drawn into an expensive and destabilizing nuclear arms race. In effect, as with Telhami and Kull, Prince Turki’s approach is designed to avoid worst case scenarios, but is framed mainly in relation to the future of the region rather than confined to the Israel/Iran confrontation.  

It concretely urges establishing such a framework with or without Israeli support at a conference of parties to the Nuclear Nonproliferation Treaty scheduled for later in the year in Finland. Israel, not a party to the NPT, has not indicated its willingness to attend the conference at this point. As long ago as the 1995 NPT Review Conference the Arab countries put forward a proposal to establish in the Middle East a WMD free zone, but it has never been acted upon at any subsequent session. Israel, which is not a member of the NPT, has consistently taken the position over the years that a complete peace involving the region must precede any prohibition directed at the possession of nuclear weapons.

            The NFZ or WMDFZ initiatives need to be seen in the setting established by the NPT regime. An initial observation involves Israel’s failure to become a party to the NPT coupled with its covert nuclear program that resulted in the acquisition of the weaponry with the complicity of the West as documented in Seymour Hersh’s 1991 The Samson Option.  Such a pattern of behavior needs to be contrasted with that of Iran, a party to the NPT that has reported to and accepted, with some friction, inspections on its territory by the Western oriented International Atomic Energy Agency. Iran has consistently denied any ambition to acquire nuclear weapons, but has insisted on its rights under Article IV of the treaty to exercise “..its inalienable right..to develop research, production and use of nuclear energy for peaceful purposes without discrimination..” Iran has been under constant threat of an attack by Israel, the target for several years of Israel’s dirty low intensity war, the target of a Congressionally funded destabilization program of the United States reinforced by a diplomacy that constantly reaffirms the relevance of the military option, and operates in a political climate that excludes consideration of Israel’s nuclear arsenal. What is surprising under these circumstances is that Iran has not freed itself from NPT obligation by exercising its option to withdraw from the treaty as it entitled to do by Article X provided only that it gives notice to other treaty parties and an explanation of its reasons for withdrawing.

            Comparing these Israeli and Iran patterns of behavior with respect to nuclear weapons, it is difficult not to conclude that it is Israel, not Iran, that should be subjected to sanctions, and pressure to participate in denuclearizing negotiations. After all, Israel acquired the weaponry secretly, has not been willing to participate in the near universal discipline to the NPT, and has engaged in aggressive wars repeatedly against its neighbors resulting in long-term occupations. It can be argued that Israel was entitled to enhance its security by remaining outside the NPT, and thus is acting within its sovereign rights. This is a coherent legalistic position, but we should all realize by now that the NPT is more a geopolitical than a legal regime, and that Iran, for instance, would be immediately subject to a punitive response if it tried to withdraw from the treaty. In other words geopolitical priorities override legal rights in the NPT setting.

         The NPT is shaped by its geopolitical nature. This is best illustrated by the utter refusal of the nuclear weapons states, above all the United States, to fulfill its obligation under Article VI “to pursue negotiations in good faith on effective measures relating to the cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.” The International Court of Justice in its 1996 Advisory Opinion on The Legality of Nuclear Weapons unanimously affirmed in its findings the legal imperative embodied in Article VI: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament, and on a treaty on general and complete disarmament in all its aspects under strict international control.” This finding that has been completely ignored by the nuclear weapons states (who had earlier made a furious failed effort to dissuade the UN General Assembly from seeking guidance from the ICJ with respect to the legal status of nuclear weapons and the obligations of the NPT). The refusal to uphold these obligations of Article VI would certainly appear to be a material breach of the treaty that authorizes any party to regard the treaty as void. Again the international discourse on nuclear weapons is so distorted that it is a rarity to encounter criticism of its discriminatory application, its double standards as between nuclear and non-nuclear states, and its geopolitical style of selective enforcement. In this regard it should be appreciated that the threat of military attack directed at Iran resembles reliance on the so-called Bush Doctrine of preventive war that had been used to justify aggression against Iraq in 2003.

            In summary, it is of utmost importance to avoid a war in the Middle East arising from the unresolved dispute about Iran’s nuclear program. One way to do this is to seek a NFZ or a WMDFZ for the entire region that includes the participation of Israel. What has given this approach a renewed credibility for the West is that it seems the only way to avoid a lose/lose war option, that it possesses some prudential appeal to change minds in Tehran and Tel Aviv, and also to engage Washington in a less destructive and self-destructive course of action. Whether this prudential appeal is sufficiently strong to overcome the iron cage of militarism that guides policy choices in Israel and the United States remains doubtful. Thinking outside the militarist box remains a forbidden activity, partly reflecting the domestic lock on the political and moral imagination of these countries by their respective military industrial media think tank complexes.

            I would conclude this commentary with three pessimistic assessments that casts a dark shadow over the regional future:

(1)  an NFZ or WMDFZ for the Middle East is necessary and desirable, but it almost certainly will not placed on the political agenda of American-led diplomacy relating to the conflict;

(2)  moves toward nuclear disarmament negotiations that have been legally mandated and would be beneficial for the world, and for the nuclear weapons states and their peoples, will not be made in the current atmosphere that blocks all serious initiatives to abolish nuclear weapons;

(3)   the drift toward a devastating attack on Iran will only be stopped by an urgent mobilization of anti-war forces in civil society, which seems unlikely given other preoccupations.  

 

 

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Stop Warmongering in the Middle East

20 Jan

 

            The public discussion in the West addressing Iran’s nuclear program has mainly relied on threat diplomacy, articulated most clearly by Israeli officials, but enjoying the strong direct and indirect backing of Washington and leading Gulf states.  Israel has also engaged in covert warfare against Iran in recent years, somewhat supported by the United States, that has inflicted violent deaths on civilians in Iran. Many members of the UN Security Council support escalating sanctions against Iran, and have not blinked when Tel Aviv and Washington talk menacingly about leaving all options on the table, which is ‘diplospeak’ for their readiness to launch a military attack. At last, some signs of sanity are beginning to emerge to slow the march over the cliff. For instance, the Russian Foreign Minister, Sergei Lavrov, commented harshly on this militarist approach: “I have no doubt that it would pour fuel on a fire which is already smoldering, the hidden smoldering fire of Sunni-Shia confrontation, and beyond that [it would cause] a chain reaction. I don’t know where it would stop.” And a few days ago even the normally hawkish Israeli Minister of Defense, Ehud Barak, evidently fearful of international panic and a preemptive response by Tehran, declared that any decision to launch a military attack by Israel is ‘very far off,’ words that can be read in a variety of ways, mostly not genuinely reassuring.

 

            It is not only an American insistence, despite pretending from time to time an interest in a diplomatic solution, that only threats and force are relevant to resolve this long incubating political dispute with Iran, but more tellingly, it is the stubborn refusal by Washington to normalize relations with Iran, openly repudiate the Israeli war drums, and finally accept the verdict of history in Iran adverse to its strategic ambitions. The United States has shown no willingness despite the passage of more than 30 years to accept the outcome of Iran’s popular revolution of 1978-79 that nonviolently overthrew the oppressive regime of the Shah. We need also to remember that the Shah had been returned to power in 1953 thanks to the CIA in a coup against the constitutional and democratically elected government of Mohamed Mossadegh, whose main crime was to nationalize the Iranian oil industry. This prolonged unwillingness of Washington to have normal diplomatic contact with Iran has been a sure recipe for international tension and misunderstanding, especially taking into account this historical background of American intervention in Iran, as well as the thinly disguised interest in recovering access to Iran’s high quality oil fields confirmed by its willingness to go along with Israel’s militarist tactics and diplomacy.

 

            This conflict-oriented mentality is so strong in relation to Iran than when others try their best to smooth diplomatic waters, as Brazil and Turkey did in the May 2010, the United States angrily responds that such countries should mind their own business, which is an arrogant reprimand, considering that Turkey is Iran’s next door neighbor, and has the most to lose if a war results from the unresolved dispute involving Iran’s contested nuclear program. It should be recalled that in 2010 Iran formally agreed with leaders from Brazil and Turkey to store half or more of its then stockpile of low enriched uranium in Turkey, materials that would be needed for further enrichment if Iran was truly determined to possess a nuclear bomb as soon as possible. Instead of welcoming this constructive step back from the precipice Washington castigated the agreement as diversionary, contending that it interfered with the mobilization of support in the Security Council for ratcheting up sanctions intended to coerce Iran into giving up its right to a complete nuclear fuel cycle. Such criticism of Turkey and Brazil for its engagement with peace diplomacy contrasts with its tacit endorsement of Israeli recourse to terrorist tactics in its efforts to destabilize Iran, or possibly to provoke Iran to the point that it retaliates, giving Tel Aviv the pretext it seems to seek to begin open warfare.

 

Iran is being accused of moving toward a ‘breakout’ capability in relation to nuclear weapons, that is, possessing a combination of knowhow and enough properly enriched uranium to produce nuclear bombs within a matter of weeks, or at most months. Tehran has repeatedly denied any intention to become a nuclear weapons state, but has insisted all along that it has the same legal rights under the Nonproliferation Treaty as such other non-nuclear states as Germany and Japan, and this includes the right to have a complete nuclear fuel cycle, which entails enrichment capabilities and does imply a breakout capability. In the background, it should be realized that even the 1968 Treaty on the Nonproliferation of Nuclear Weapons contains a provision that allows a party to withdraw from the obligations under the treaty if it gives three months notice and ‘decides that extraordinary events..have jeopardized its supreme national interests.’(Article X) Such a provision, in effect, acknowledges the legal right of a country to determine its own security requirements in relation to nuclear weapons, a right that both the United States and Israel in different ways have implicitly exercised for decades with stunning irresponsibility that includes secrecy, a failure to pursue nuclear disarmament that is an obligation of the treaty, and a denial of all forms of international accountability. The real ‘threat’ posed by a hypothetical Iran bomb is to Israel’s regional monopoly over nuclear weapons. As three former Mossad chiefs have stated, even if Iran were to acquire a few nuclear bombs, Israel would still face no significant additional threat to its security or existence, as any attack would be manifestly suicidal, and Iran has shown no such disposition toward recklessness in its foreign policy.

 

            To be objective commentators we must ask ourselves whether Iran’s posture toward its nuclear program is unreasonable under these circumstances. Is not Iran a sovereign state with the same right as other states to uphold its security and political independence when facing threats from its enemies armed with nuclear weapons? When was the last time resorted to force against a hostile neighbor? The surprising answer is over 200 years ago! Can either of Iran’s antagonists claim a comparable record of living within its borders? Why does Iran not have the same right as other states to take full advantage of nuclear technology? And given Israeli hostility, terrorist assaults, and military capabilities that includes sophisticated nuclear warheads, delivery style, and a record of preemptive war making, would it not be reasonable for Iran to seek, and even obtain, a nuclear deterrent? True, the regime in Iran has been oppressive toward its domestic opposition and its president has expressed anti-Israeli views in inflammatory language (although exaggerated in the West), however unlike Israel, without ever threatening or resorting to military action. It should also be appreciated that Iran has consistently denied an intention to develop nuclear weaponry, and claims only an interest in using enriched uranium for medical research and nuclear energy. Even if there are grounds to be somewhat skeptical about such reassurances, given the grounds for suspicion that have been ambiguously and controversially validated by reports from International Atomic Energy Agency, this still does not justify sanctions, much less threats backed up by deployments, war games, projected attack scenarios, and a campaign of terrorist violence.

 

            So far no prominent advocates of confrontation with Iran have been willing to acknowledge the obvious relevance of Israel’s nuclear weapons arsenal. Is not the actuality of nuclear weaponry, not only an Iranian breakout potential but a substantial arsenal of Israeli weaponry secretly acquired (200-300 warheads), continuously upgraded, and coupled with the latest long distance delivery capabilities, the most troublesome threat to regional stability and peace? At minimum, are not Israel’s nuclear weapons stockpile highly relevant both to bring stability and for an appraisal of Iran’s behavior? The United States and Israel behave in the Middle East as if the golden rule of international politics is totally inapplicable, that you can do unto others, what you are unwilling to have them do unto you!

 

            We need, as well, to remember the lessons of recent history bearing on the counter-proliferation tactics relied upon in recent years by the United States. Iraq was attacked in 2003 partly because it did not have any nuclear weapons, while North Korea has been spared such a comparably horrific fate because it possesses a retaliatory capability that would likely be used if attacked, and has the capability to inflict severe harm on neighboring countries. If this experience relating to nuclear weapons is reasonably interpreted it could incline governments that have hostile relations to the West to opt for a nuclear weapons option as necessary step to discourage attacks and interventions. Surely putting such reasoning into practice would not be good for the region, possibly igniting a devastating war, and almost certainly leading to the spread of nuclear weapons to other Middle Eastern countries. Instead of moving to coerce, punish, and frighten Iran in ways that are almost certain to increase the incentives of Iran and others to possess nuclear weaponry, it would seem prudent and in the mutual interest of all to foster a diplomacy of de-escalation, a path that Iran has always signaled its willingness to pursue. And diplomatic alternatives to confrontation and war exist, but require the sort of political imagination that seems totally absent in the capitals of hard power geopolitics.  

 

            It should be obvious to all but the most dogmatic warmongers that the path to peace and greater stability in the region depends on taking two steps long overdue, and if not taken, at least widely debated in public: first, establishing a nuclear free Middle East by a negotiated and monitored agreement that includes all states in the region, including Israel and Iran; secondly, an initiative promoted by the United Nations and backed by a consensus of its leading members to outline a just solution for the Israel/Palestine conflict that is consistent with Palestinian rights under international law, including the Palestinian right of self-determination, which if not accepted by Israel (and endorsed by the Palestinian people) within twelve months would result in the imposition of severe sanctions. Not only would such initiatives promote peace and prosperity for the Middle East, but this turn to diplomacy and law would serve the cause of justice both by putting an end to the warmongering of recent years and to the intolerable denial of rights to the Palestinian people that goes back to at least 1947, and was later intensified by the oppressive occupation of East Jerusalem, West Bank, and Gaza that resulted from the outcome of the 1967 War.

 

            These manifestly beneficial alternatives to sanctions and war is neither selected, nor even considered in the most influential corridors of opinion-making. It is simple to explain why: world order continues to be largely shaped by the rule of power rather than the rule of law, or by recourse to the realm of rights, and no where more so than in the Middle East where the majority of the world’s oil reserves are located, and where an expansionist Israel refuses to make real peace with its neighbors while subjugating the Palestinian people to an unendurable ordeal. Unfortunately, a geopolitical logic prevails in world politics, which means that inequality, hierarchy, and hard power control the thought and action of powerful governments whenever toward strategic interests are at stake. Perhaps, a glance at recent history offers the most convincing demonstration of the validity of this assessment: Western military interventions in Iraq and Libya, as well as the intimidating threats of attacks on Iran, three states in the region with oil and regimes unfriendly to the West. Egypt and Tunisia, the first-born children of the Arab Spring, were undoubtedly politically advantaged by not being major oil producing states, although Egypt is not as lucky as Tunisia because Israel and the United States worry that a more democratic Egyptian government might abandon the 1978 Peace Treaty and show greater solidarity with the Palestinian struggle, and are doing what they can to prevent Cairo from moving in such directions.

 

            Fortunately, there is a growing, although still marginal, recognition that despite all the macho diplomacy of recent years, a military option is not really viable. It would not achieve its objective of destroying Iran’s nuclear capabilities, and it would in all likelihood confirm the opinions among Iranian hawkish factions that only the possession of nuclear weapons will keep their country from facing the catastrophe brought on by a military attack. Beyond this, attacking Iran would almost certainly unleash retaliatory responses, possibly blocking the Straits of Hormuz, which carry 20% of the world’s traded oil, and possibly leading to direct missile strikes directed at Israel and some of the Gulf countries. Given this prospect, there is beginning to be some indication that the West is at last beginning to consider alternatives to hot war in responding to Iran.

 

            But so far this realization is leading not to the peaceful initiatives mentioned earlier, but to a reliance on ‘war’ by other means. The long confrontation with Iran has developed its own momentum that makes any fundamental adjustment seem politically unacceptable to the United States and Israel, a sign of weakness and geopolitical defeat. And so as the prospect of a military attacked is temporarily deferred for reasons of prudence, as Barak confirmed, but in its place is put this intensified and escalating campaign of violent disruption, economic coercion, and outright terrorism. Such an ongoing effort to challenge Iran has produced a series of ugly and dangerous incidents that might at some point in the near future provoke a hostile Iranian reaction, generating a sequence of action and reaction that could plunge the region into a disastrous war and bring on a worldwide economic collapse.

 

            The main features of this disturbing pattern of covert warfare are becoming clear, and are even being endorsed in liberal circles because such a course of action is seen as less harmful to Western interests than an overt military attack, proceeding on the assumptions that are no better alternatives than confrontation in some form.  Israel, with apparent American collaboration, assassinates Iranian nuclear scientists, infects Iranian nuclear centrifuges used to enrich uranium with a disabling Stuxnet virus, and recruits Iranians to join Jundallah, an anti-regime terrorist organization in Iran, to commit acts of violence against civilian targets, such as the 2009 attack on the mosque in Zahedan that killed 25 worshippers and wounded many others. The New York Times in an editorial  (January 13, 2012) describes these tactics dispassionately without ever taking note of their objectionable moral or legal character: “An accelerating covert campaign of assassinations, bombings, cyber attacks and defections—carried out mainly by Israel, according to The Times—is slowing..[Iran’s nuclear] program, but whether that is enough is unclear.” The editorial observes that “a military strike would be a disaster,” yet this respected, supposedly moderate, editorial voice only questions whether such a pattern of covert warfare will get the necessary job done of preventing Iran from possessing a nuclear option sometime in the future.

 

            It should be obvious that if it was Iran that was engaging in similar tactics to disrupt Israeli military planning or to sabotage Israel’s nuclear establishment liberal opinion makers in the West would be screaming their denunciations of Iran’s barbaric lawlessness. Such violations of Israel sovereignty and international law would be certainly regarded by the West as unacceptable forms of provocation that would fully justify a major Israeli military response, and make the outbreak of war seem inevitable and unavoidable.

 

            And when Iran did recently react to the prospect of new international sanctions making its sale of oil far more difficult by threatening to block passage through the Straights of Hormuz, the United States reacted by sending additional naval vessels to the area and warning Tehran that any interference with international shipping would be ‘a red line’ leading to U.S. military action. It should be incredible to appreciate that assassinating nuclear scientists in Iran is okay with the arbiters of international behavior while interfering with the global oil market crosses a war-provoking red line. These self-serving distinctions illustrate the dirty work of geopolitics in the early 21st century.

 

            There are some lonely voices calling for a nuclear free Middle East and a just settlement of the Israeli/Palestine conflict, but even with credentials like long service in the CIA or U.S. State Department, these calls are almost totally absent in the mainstream discourse that controls debate in the United States and Israel. When some peaceful alternatives are entertained at all it is always within the framework of preventing Iran doing what it seems entitled to do from the perspectives of law and prudence. I am afraid that only when and if a yet non-existent Global Occupy Movement turns its attention to geopolitics will the peoples of the Middle East have some reason to hope for a peaceful and promising future for their region.    

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