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Healing Wounds: Seeking Closure for the 1915 Armenian Massacres

12 Jan

 

Richard Falk & Hilal Elver

 

            Recently the National Assembly, France’s lower legislative chamber, voted to criminalize the denial of the Armenian genocide in 1915, imposing a potential prison sentence of up to one year as well as a maximum fine of 45, 000 Euros. The timing of this controversial initiative seemed to represent a rather blatant Sarkhozy bid for the votes of the 500,000 French citizens of Armenian descent in the upcoming presidential election. It follows similar pre-election initiatives in 2001 when the French Parliament officially declared that the massacres of Armenians in 1915 were an instance of genocide and in 2006 when the Assembly first voted to criminalize Armenian genocide denial, an initiative that never became law because the French Senate failed to give its assent. And this hopefully may happen again with respect to this recent Assembly move.

 

            Predictably, the French action was perceived by Turkey as a hostile provocation. The Turkish government, which has so far refused to describe the 1915 events as ‘genocide,’ immediately reacted, warning France of adverse economic consequences if this initiative went forward, and has reacted by withdrawing its ambassador and freezing inter-governmental economic relations. The Turkish Prime Minister, Recip Teyyip Erdogan, denounced the action of the French Assembly that had been initiated by a prominent member of Sarkhozy’s party. Erdogan, known for his forthrightness, advised the French Government that instead of criminalizing the Turkish unwillingness to acknowledge the 1915 events as genocide, France should busy itself with determining whether its harsh tactics used during the 1950s in Algeria, and supposedly responsible for up to a million Algerian deaths during the long French campaign to hold onto to its north African colony constituted genocide.

 

            There are many issues raised by this turn for the worse in French-Turkish relations, and its embittering dialogue about historic events. Perhaps, the most important, is whether it is ever justifiable to criminalize the expression of an opinion about a set of past occurrences that goes against a societal consensus. It is true that genocide or Holocaust denial can be hurtful to those who are survivors or descendants of survivors, and identify with the victims of such severe wrongdoing, and its attendant suffering, but whether the sensitivities of these communities should ever be protected by the criminal law seems doubtful, conflicting with freedom of expression and censuring inquiries into historical events that are unpopular and controversial, but occasionally illuminating enough to challenge conventional wisdom. It would seem that informed agreement and social pressure should be sufficient to deter all but the most extremist instances of denial if a genuine and sufficient consensus exists as to the locus of responsibility and the character of the events. In this instance, such criminalization is especially unfortunate as even if the facts of the 1915 events are reasonably well established, the relevance of genocide is certainly ambiguous and somewhat problematic, especially from a legal perspective.

 

            Against this background, where Turkey has not yet been willing to describe the events of 1915 as ‘genocide’ the criminalization of the denial is more likely to raise tensions that encourage a long overdue accommodation. Of course, there are related irritants to the Turkish-Armenian relationship, especially the unresolved conflict over the future of the Nagorno-Karabakh enclave in Azerbaijan. Among thoughtful Turks there continues to be some questioning of the character of the World War I events in question, not about their tragic character or even a willingness to condemn Ottoman wrongdoing, but there remains a Turkish governmental and societal reluctance to pin the label of genocide on these occurrences. It is well known that the Armenian diaspora has long been seeking to induce key governments around the world to make formal declarations to the effect that what happened in 1915 was genocide, and some 25 governments have done so, as have many lesser political entities such as sub-divisions of the state or cities. Such efforts to legalize historical truth, as distinct from mourning historical events, is itself

a political gimmick to circumvent diplomacy and accommodation. But to criminalize genocidal denial represents a still further escalation of Armenian efforts to resolve the controversy over this potent g-word through branding of denial as a crime. We would insist that rather than resolving the conflict, such steps make a politics of reconciliation that much more difficult for both parties.

 

            The discourse on genocide has always been confusing, multi-layered, and often toxic. The word ‘genocide’ is weighted down by its implications, explaining both why there is such a strong impulse to invoke it and an equally intense effort to deny its applicability.  We need to distinguish genocide as a crime in international law from the political assessment of historic events as genocide due to a clear pattern of deliberate killing of an ethnic or religious group. And such a political assessment needs to be further distinguished from a moral condemnation of a pattern designed to destroy systematically a beleaguered minority that might properly be described as ‘genocidal,’ or what has been more recently described as ‘ethnic cleansing’ in the setting of Bosnia, which is distinct from the judicially certified ‘genocide’ that shook the foundations of Rwanda in 1994.

 

            From a legal perspective it is not plausible to call these events in 1915 as genocide. After all, the word did not exist until coined by Rafael Lemkin in 1943, and the crime was not so delimited until the Genocide Convention came into force in 1951. Beyond this, and more telling than this technical observation, is the fact that the indictments at Nuremberg did not charge the surviving Nazi leaders with genocide, but convicted these Germans of ‘crimes against humanity’ for their connection with genocidal conduct, and even here only if the alleged criminal acts were associated with World War II, found by the tribunal to be an unlawful war, and thus a ‘crime against peace.’ If the Holocaust perpetrated against Jews and others did not seem to the Nuremberg tribunal to be a distinct crime, then it seems untenable to regard the Armenian tragedy as embodying the crime of genocide. When the UN expert body, the International Law Commission, put into words what was done at Nuremberg it explicitly affirmed the Roman dictum prohibiting retroactivity: no crime without law (nulla crimen sine lege).  Such a dictum touches on a fundamental component of justice to the effect that behavior, however detestable from moral and political points of view, is not a ‘crime’ until so designated in advance of the acts in question by a competent judicial body. This principle has never been contested, and it pertains to the genocide debate whenever attached to pre-1951 events, whether the Armenian experience or to the destruction of a variety of indigenous peoples in various parts of the world or to the barbarous institution of slavery.

 

            At the same time, if what took place in 1915 were to have occurred anytime after the Genocide Convention became effective, it would seem beyond any reasonable doubt to qualify as genocide. The International Court of Justice in the course of examining the Bosnian allegations of genocide, put the bar high by requiring written or documentary evidence of a clear intent by Serbian governmental leaders to commit the crime of genocide that was not available (except the particular incident involving the horrific massacre of several thousand Bosnian males at Srbrenica in 1995 was declared to be genocide). While such evidence was difficult to provide to the satisfaction of the World Court in relation to this notorious Bosnian experience of the 1990s partly as a result of a questionable arrangement with the ad hoc International Criminal Tribunal for former Yugoslavia not to release documentary evidence tying the Belgrade regime to the anti-Muslim cleansing operations in Bosnia, the situation with respect to Armenia is different. Unlike Bosnia, documentary evidence from the ruling Ottoman authorities does exist in sufficient quantity and quality to make a persuasive argument to the effect that ‘genocide’ took place in 1915, but because the events occurred 36 years before genocide formally became a crime such a showing is legally irrelevant.

 

            If this reasoning is accepted, it has important implications, including establishing some political space for bringing closure to the issue: Turkey could formally declare that if what happened to the Armenians in 1915 took place in the 1960s it would have been genocide, while those on the Armenian side could accept the idea that the 1915 massacres were not then genocide, but that their extent, character, and evidence would constitute genocide if taking place now, or anytime after 1951. The French move, if indeed it becomes law, is irresponsible in the extreme as it disallows the explorations of constructive ways that the violence and suffering of the past might be mitigated. As post-apartheid South Africa has illustrated, it might sometimes be politically and morally preferable for a victimized people to opt for ‘truth and reconciliation’ than to insist on the criminalization of past wrongs however heinous.

 

            It seems to me that such an approach would have mutual benefits. It would bring a conflict that has endured for decades nearer to closure. It would allow Armenians to regard their victimization as genocide from a political and moral perspective, while enabling Turkey to make such a concession without fearing such legal implications as Armenian demands for reparations and the recovery of lost property. Turkish good faith and remorse could be further expressed by appropriating funds for the establishment of a major museum of Armenian History and Culture in Ankara, by recognizing April 24th as a day of Armenian remembrance, and by encouraging honest historical inquiry into these horrific occurrences.

 

            Of course, such a politics of reconciliation can only have any hope of succeeding if there is a large display of good will and a sincere search by Turkish and Armenian leaders for positive relations between the two peoples. It is to be expected that extremists on both sides would strenuously object to such an accommodation. Admittedly, there would not be complete satisfaction even among that largely silent majority of Armenians and Turks who might welcome a pacifying development. What would be created is valuable– a new opening that would allow a more benevolent future to unfold for both peoples that could include a joint cathartic reexamination of the past. Such a development might add to the solemnity and dignity of the expected worldwide observances in 2015 of the 100th anniversary of these events and avoid these occasions from being little more than sad remembrances and shrill recriminations.  

 

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Remembering the Best and Worst of 2011

3 Jan


             2011 was an exciting and pivotal year in many respects, although its main outcomes will remain inconclusive for years to come.  We will learn in 2012 whether we are moving closer to fulfilling our hopes, dreams, and goals or are trying to interpret and overcome a recurrence of disappointment and demoralization with respect to progressive change in world affairs. The stakes for some societies, and for humanity, have rarely been higher.

 

             Undoubtedly, the most dramatic moments of the prior year were associated with those many remarkable happenings that collectively became known as the Arab Spring, a complex, varied, and even contradictory phenomenon that did not occur in an historical vacuum. There were many antecedent events, as well as prior heroes and victims, known and unknown, and numerous identified and unidentified villains. Mohamed Bouazizi’s extraordinary self-immolation on December 17, 2010 in the interior Tunisian city of Sidi Bouzid provided a catalyzing experience that will never be forgotten by those longing for justice and change.  This suicide achieved much more than highlight personal tragedy, although this sad ending of a young besieged life was itself a most sorrowful occurrence. Bouazizi’s death awakened the Tunisian public to an intolerable set of national conditions that pertained to the whole society. With explosive spontaneity Bouazizi’s tragic death generated Tunisian uprisings throughout the country that led quickly and surprisingly to the fall of the dictatorial and corrupt 23 year old regime of Zine El Abidine Ben Ali a mere five weeks later, a startling course of events that provided a spark for volcanic action in Egypt, and indeed the entire region.

 

            The brave and transformative Egyptian demonstrations of January 2011, centered in Tahrir Square, contributed to the world many images of populist energy and courage associated with a political awakening of vivid and massive proportions. The fall of Mubarak in Egypt inspired people throughout the region and eventually the world. What was achieved in Tunisia and Egypt reestablished the agency of a mobilized populace that nonviolently challenges an entrenched regime of an oppressive and corrupt character that had endured for some 30 long years.  More than surprising developments in Tunisia and Egypt, regimes regarded as ultra-stable by their Western backers, was the exposure of several distortions embedded in prevalent Orientalist teachings to the effect that Arabs had a slave mentality. In effect, oppressed Arabs were consigned to their unhappy fates because they lacked the will or capacity to embark upon political undertakings to challenge unjust political structures, were reconciled to their subservience, and had no social imaginary that insisted on the dignity of ordinary people and demanded justice for society. In the sharpest contrast, the Tahrir political spectacle exhibited an Arab population prepared to risk death and harsh imprisonment so as to achieve freedom, human rights, democracy, as well as an equitable economic order.

 

            These were inspiring uprisings that achieved unbelievably successful results, toppling tyrants long entrenched at the pinnacles of state power. Many participants and commentators believed that these extraordinary uprisings were accomplishing revolutionary results by toppling the old regimes and thereby transforming the political setting. Unfortunately, such enthusiasm was a disheartening exaggeration, and definitely remains premature. A revolutionary process implies radically transforming the political, economic, and social structures so as to produce just and democratic societies.  Such work has yet to be done anywhere in the Arab world, and it will not be easy, or accomplished without overcoming formidable and desperate resistance from beleaguered governmental, societal, and international elites that had long benefitted from the old regime, and would stand lose from genuine political reform.

 

            Tunisia seems to be moving forward toward the realization of its revolutionary promise, although even progress on its road of political reconstruction is slow, uncertain, and replete with twists and turns. Tunisia has not yet experienced what could be fairly called a revolutionary outcome, although it is so far free from a counter-revolutionary backlash. At this time the overall outlook for Tunisia remains exciting and positive. The same cannot now be said for Egypt, which is gripped by a series of deadly unresolved struggles that leaves its future very much in doubt, and makes us wonder whether 2012 will suggest an Egyptian outcome that is, at best, outwardly reformist, while remaining inwardly regressive. It would be a mistake to ignore counter-revolutionary maneuvers and horizons, abetted by external actors that never privately welcomed the Arab Spring and would welcome restoration of the old regimes, if possible with new faces and a political style that was more superficially congenial with democratic procedures.

 

            And yet many Egyptians continue to struggle on behalf of a revolutionary future. Despite the violence of the Cairo regime without Mubarak they returned in late 2011 to Tahrir Square for a second cycle of demonstrations. The show of unrestrained state violence and cruelty used to crush this renewal of popular demands for democracy, civilian governance, and justice was a reminder that the ouster of Mubarak was the beginning, not the end, of a long and difficult struggle to shape the political future of the country. The Egyptian army that last January seemed almost to greet the fall of Mubarak with a sigh of relief, now seems to be showing its hand as intensely anti-democratic and hostile to fundamental social and economic reforms that might threaten their privileges, but are urgently needed if Egyptian democracy is to become more than a discredited slogan. Also, the domestic situation is complicated by growing tensions between secularists and Islamists as to what sort of role Islam should play in Egypt that are susceptible to manipulation by malevolent outsiders. Although each country in the region is experiencing the Arab Spring in its own way, the form of the Egyptian unfolding, for better or worse, is the one that is most likely to exert a significant influence beyond its borders.

 

            It must also be admitted that the Arab Spring has already produced its share of extremely disappointing results: Uprisings generated an escalation of oppression in Bahrain, a despondent resignation in Saudi Arabia and Algeria, a destructive and very violent NATO intervention in Libya,  a situation of unresolved chaos and violence in Yemen, and a series of inconclusive bloody encounters in Syria.

 

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            Among the most extraordinary of extra-regional impacts of the events in the Arab world was the totally unanticipated Occupy Movement, starting in Wall Street, but spreading with the speed of an uncontrollable wild fire to cities throughout the United States, and then around the world. The word Occupy was given a radically transformed meaning through this movable feast of radical reclaimings of political space through nonviolent tactics that were confrontational toward the established order, including especially a display of anger about the excesses of capitalism and financial institutions. The movement was indistinct in its contours and goals, seemingly dedicated to the realization of democratic values on a global scale, particularly with respect to the global economy, but without any confidence that desirable ends could be reached by way of conventional politics: elections, political parties, institutional lawmaking, and governmental policies.

 

            The creativity of the movement was embodied in its radical reliance on pure democracy to manage its own collective behavior, giving equality of participation the highest priority. So far, the Occupy Movements have lacked a clear agenda of substantive initiatives and demands, remained leaderless, and operating without a program or even a consistent spokesperson, but in varying ways deferring to the daily needs and wishes of its militants camped out in dozens of city squares and parks. Whether this kind of politics represents the first stage of a new revolutionary politics capable of both challenging the modern capitalist state and of transforming neoliberal globalization into a robust realization of global democracy is most uncertain at present, but may become clearer throughout 2012.  At the very least, the political imagination of resisters in the West to injustice has been temporarily lifted from the doldrums of passivity and despair. The idea that popular discontent need not await the outcome of normal politics is again credible. Such politics can move to occupy and maybe, just maybe, stay around long enough to mount a political challenge that shakes the foundations of what was triumphantly dubbed ‘market-oriented constitutionalism’ at the end of the Cold War.  We should begin to ask ourselves whether we are witnessing the birthpangs of what I have called ‘anarchism without anarchism.’  Or is this just a political dance that will continue only so long as the music plays?

 

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            There were many other important happenings in 2011, some encouraging, some foreboding, and some ambiguous. Only a few can be mentioned.

 

            First of all, the speech given by Mohamed Abbas, President of the Palestinian Authority (PA) to the UN General Assembly on September 25, putting forward a clear official argument for the first time calling for an acceptance of Palestinian statehood and sovereignty by the United Nations. The forcefulness of the language used by President Abbas exceeded expectations, and was especially impressive in light of the intense campaign of intimidation mounted by Israeli officials and their American counterparts to warn the Palestinians of dire consequences if they persisted with this political initiative. The speech also was political theater at its best, displaying the solidarity of most governments with the Palestinian effort to escape the ordeals of occupation, refugee status, and pervasive exploitation. Abbas’ words were greeted with explosive applause that no other head of state received at last year’s session of the General Assembly.

 

            As might be expected given the varied conditions of deprivation, not every Palestinian welcomed the PA initiative. There were some well grounded anxieties that any establishment of Palestinian statehood at this time would involve a tacit acceptance of Israeli ‘facts on the ground,’ including settlements, apartheid, and ethnic cleansing, and in such a process sacrifice inalienable Palestinian rights. Some Palestinians also worried that such an international acceptance of the PA would inevitable sideline the parent representative body, the PLO, serving as a prelude to bargaining away the rights of Palestinian refugees and exiles, as well as excluding Hamas from any representational role, which would effectively deny the people of Gaza any opportunity to participate in the diplomacy designed to control their future.

 

            Encouragingly, in October the PA followed up the bold Abbas speech by seeking and gaining membership as a state in UNESCO by an overwhelming  vote of 107-14 despite a barrage of punitive threats and responses by Washington and Tel Aviv (U.S. is committed to withholding 22% of the UNESCO budget for the coming year).  On December 13th the Palestinian flag was raised at UNESCO Headquarters in Paris as Palestine became the 195th  member of the organization. This play of forces at UNESCO is a microcosm of worldwide political sentiments favorable to the Palestinian struggle.

 

            Despite this victory, it now appears that the PA has again lost its nerve, and is retreating to Ramallah. It seems that the PA will make no further effort to gain recognition as a state by the Security Council or General Assembly or attempt to be accepted as a member of other UN institutions, such as the International Criminal Court and the International Court of Justice. If this retreat materializes, it will encourage the Palestinian people to believe that only politics from below can hope to achieve emancipatory results.

 

            We must also not lose sight of existential Palestinian hardships and suffering that is something that the people living under occupation or confined in Gaza or refugee camps experience day by day, hour by hour. These miserable conditions experienced by Palestinians living in the West Bank, East Jerusalem, and Gaza have persisted for decades, and there is no end in sight. Israel continues to expand its settlements in defiance of international law and world public opinion and goes on insisting on its acceptance as ‘a Jewish state’ despite claiming to be the only democratic country in the region, and the only government that treats its citizens on a non-discriminatory basis. This misleading Israeli propaganda hides policies and patterns of governmental conduct that have long been multiply abusive toward the non-Jewish Palestinian minority in Israel that numbers about 1.4 million or about 20% of the total population.

 

            What the Palestinian people endured in 2011 was mainly experienced as a dismal confirmation of continuity. Perhaps, the Abbas abortive effort at the UN will seem in 2012 to have sounded the deathknell of diplomacy from above as the way forward for the Palestinian people. In its place will grow an increasing reliance on various forms of borderless and nonviolent politics from below. At present, the ever strengthening global solidarity movement encourages such a shift in emphasis. The Boycott, Divestment, and Sanctions Campaign (BDS) is presently the clearest and most encouraging expression of this Palestinian move away from inter-governmental frameworks of conflict solution.  And for BDS maybe 2012 will be the year that sanctions come to reinforce the stunning successes already achieved with respect to boycotts and divestment.

 

 

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            In 2011, the climate change clock continued to tick. Greenhouse gas emissions keep rising far above safe levels, despite the scientific community’s warnings that the failure to regulate emissions is causing present harm of a severe sort and threatening much worse in the years and decades ahead. By the time such warnings are likely to be heeded because the damage has become so widespread and manifest, it may well be too late, as the effects of a carbon buildup cannot be reversed after certain thresholds are crossed. Already extreme weather in the form of storms, tornados, floods, and droughts have brought devastation and suffering to many societies in the world, especially those most vulnerable due to their geography or poverty. The early effects of global warning have been most severely experienced in sub-Saharan Africa where 33 of the 48 least developed countries are situated. The annual UN conferences on climate change have run up against a stonewall of geopolitical irresponsibility, led by the U.S. refusal to allow any framework of regulation to come into being that imposes obligations on states, burdens the private sector, and questions the cult of consumerism. The EU seems ready to offer the world a more constructive approach to climate change, but whether it can rally enough political support to impose controls on the principal emitters of carbon dioxide remains doubtful. It is crucial that those seeking a just future for humanity do not neglect the challenge of climate change, which is less tangible and immediate in its harmful impact than other concerns, but no less deadly. Without adjustments prior to catastrophic events, ecological and civilizational collapse could make a nightmare of the near future for all peoples living on the planet.

 

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            The meltdown and damage at the Daichi Fukushima nuclear reactor complex initiated by the earthquake and tsunami of March 11, 2011 are a foretaste of what can happen anywhere in the world. For Japan to experience ‘a second Hiroshima’ both deepens the tragedy and is testimony to a sad irony of history. It also challenges Japan and the world to find safer alternatives to nuclear energy to meet the demands of society, and raises questions about the sustainability of consumer-based modernity with its high per capita energy demand. For other countries, especially the United States, the unmonitored huge energy requirements needed to maintain 21st century military establishments is a further aggravating circumstance, with many secondary harmful effects, including accident-prone deep sea oil drilling and the attempted conversion of environmentally devastating tar sands into usable forms of energy. Fukushima exhibited the dire consequences of natural catastrophe abetted by human error and wrongdoing in the form of corporate mendacity relied upon to hide risks from the public and governmental complicity in issuing false reassurances about the extent of the damage and the degree of exposure of the Japanese population to lethal doses of radioactivity in water, food, and air.

 

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            Disturbing, also, were unacceptably belligerent moves by Israel and the United States threatening to wage war against Iran. This appetite for waging war against Muslim countries is making the projected clash of civilizations a self-fulfilling prophesy as it becomes established as an undeniable historical reality. In the first decade of this century the West has already intervened militarily in Afghanistan, Iraq, Libya, as well as gearing up for war against Iran, and even threatening to use force in Syria and mounting deadly drone attacks in Pakistan. In all these post-9/11 encounters there was no serious claim of self-defense and no UN mandate except in Libya where a limited protective authority to use force was approved by the UN Security Council, and later improperly converted by NATO into an instrument to sway the internal play of forces in an internal struggle within Libya. These were each unlawful wars that inflicted devastation, heavy casualties, and massive displacement on the target societies. Each was in its essence an imperial war fought far from the imperial homelands, and each represented a strategic failure by the imperial power, a definite signal to the world of imperial decline, further confirmed by economic troubles at home and the rise of extremist oppositional parties with highly irresponsible agendas and ‘solutions.’ For instance, all of the Republican Party presidential candidates are ‘climate skeptics’ who defy the scientific consensus, which should be understood as a turning away from evidence and reason, in effect, a flight from reality.

 

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            All in all, 2011 will be remembered as a seminal year, principally due to innovative political uprisings that shook the foundations of established orders. More subtly, also, 2011 dramatizded a series of challenges that will not be resolved for a long time as to the sustainability of development and the global maintenance of stable ecological and economic conditions. These challenges seem to exceed the capacity of a world of sovereign states to address in acceptable forms. Two major effects are observable: first, a widespread politics of denial to divert attention from the ticking bombs of worsening conditions associated with these unmet challenges; and secondly, the exhilarating realization that toppling oppressive structures of government in the Arab world has already moved beyond the realm of the possible, having achieved more than could have been dreamed of in 2010, and producing some hope that a politics of impossibility may lead to an as yet unimaginable global dawn.

 

What is Shame?

22 Dec

 


 

            ‘Shame’ is a disturbing, much admired, Steve McQueen film that has been misleadingly reviewed, but deserves our serious attention. Let me put my reasoning in provocative language: ‘Shame’ depicts with chilling realism the degeneracy of high-end capitalist life style in the urban landscape of Sodom on the Hudson, otherwise known as ‘The Big Apple,’ that is, New York City. This sterile glitter of clubs and bars, loveless sexuality, acute alienation, and shady business operations is a city within the city that somehow co-exists with the world’s most innovative, abundant, and world class cultural life that continues to contain in its midst many enclaves of normalcy, humanism, and personal fulfillment. There is a central confusion in the film, perhaps deliberate: the city is portrayed as if it can be reduced to this skyscraper reality of nefarious business ventures and the flashy life it offers its operatives.

 

            Most reviews focus on the torments of the main character, brilliantly enacted by Michael Fassbender in the role of Brandon Sullivan, a mid-level employee in an unidentified hugely successful money making enterprise where profitable deals are celebrated in a soulless atmosphere of total indifference to what goes on beyond the glass walls enclosing this outpost of digitized finance capitalism. Is it any wonder that Brandon suffers from an amputated imagination, leaving him in lonely pursuit of sexual gratification? His own inextinguishable decency is disclosed when he withdraws from making love to Marianne, an office mate and the one person in the film who retains her dignity despite the corrupting environment. Brandon understands at that moment, and only then, that sexuality is one thing and love and intimacy quite another. It is worth observing that Marianne, well portrayed by Nicole Beharle, is the only African American presence in the film, possibly suggesting that this whole capitalist escapade is a white racist self-willed implosion posing apocalyptic dangers for the human future. In my political and moral imagination, what is depicted by ‘Shame’ is not to be sharply distinguished from the militarist willingness of Beltway strategists to plan wars to preserve privileged access to oil reserves for the West.

 

            Of course, the film works as ‘entertainment’ because of its narrative and our engagement with its characters, either pro or con. The interaction of Brandon with his younger sister, Sissy (beautifully rendered by Carey Mulligan), is a study in converging contrasts. In a sense Sissy seeks access to the dubious world of her brother by succeeding as a club singer, highlighted by a deeply sad and drawn out interpretation of the signature song, ‘New York, New York.’ Brandon in the audience fights back tears, apparently realizing in some sense that this city, or at least his experience of the city, has robbed him of his soul, and that his sister grasps this reality in the song with depth that is both personally rending and suggestive of the Faustian Bargains that alone will open doors to the lavish joys of the city. In fact, the song is sung with such a display of understanding and authenticity that it seem inevitable that suicidal behavior becomes Sissy’s only unlocked door as she is incapable of enduring a future without genuine love and a sustaining emotional community. Sissy’s hysteria is the counterpart to Brandon’s hyper-alienated sex addiction. There is a mysterious keynote assertion by Sissy seemingly meant to comprehend their messed up lives: “We are not bad people. We just come from a bad place.” Perhaps, it would be more illuminating if the script had read, “We just came to a bad place, or tried to.” As it is, we are never informed about the character of the bad place in their past, and the line has resonance without imparting meaning.

 

            One of the most erotic moments in the film is an attempted subway stalking by Brandon of an attractive woman with whom he exchanges enticing glances. He follows her to the exit, but loses her in the crowd after

a chase that exhibits his desperation and amorality (as the camera let us know earlier that the woman was wearing a wedding ring). The film ends with a similar encounter, although this time the same woman more explicitly encourages contact, which Brandon keenly observes, but chooses to ignore by not following her. Perhaps, this suggests the overcoming of shame by Brandon, shame as understood in its dictionary sense of ‘a painful feeling of humiliation or distress caused by the consciousness of wrong or foolish behavior.’ (Oxford English Dictionary) Brandon seems to have learned enough during this narrative to transcend his shamefulness for at least this revealing instant. Whether Brandon’s momentary epiphany expresses an enduring transformative resolve or is merely a transitory gesture is not resolved by the film, but appropriately consigned by the director to the realm of our imaginative speculation. If transformative, it would require Brandon to seek other work outside the city within the city, and move to a modest hangout in Brooklyn or somewhere far away.

           

            Dwelling on the personal suggests to me that McQueen fails to understand the savage cultural critique that represents the core trans-personal meaning and significance of the film, and what makes it worthy of commentary. Or put more ironically, does this insistence on emphasizing the personal tell us that a commercially acceptable film must be about people not the system if it wants the imprimatur of Hollywood and the reviewing cognoscenti? It is notable that the most thoughtful reviews that I have found all devote their attention to the foreground of these personal struggles and all but ignore the setting that disposes, if not determines, the options available to individuals caught in such a maelstrom that is both exploitative of others and destructive of their better selves.

 

            An admirable feature of the film is its effort to capture the real time experience, allowing the camera to linger and giving the viewing audience space to reflect on what is happening. This is a liberty rarely taken by a director who seeks financial viability as a continuing assurance that there will be support for future projects. I assume that McQueen’s eminence as a famous filmmaker frees him from such anxieties, but it should not be forgotten that Hollywood is as tied to Wall Street as Brandon is connected to his lovely, lost sister. I would hope that the Occupy polemics directed at Wall Street are soon extended to express a measure of empathy to the winners, that benighted 1%, as well as to the victimized 99%, so as to achieve the spiritual coherence that respects the Gandhi /Tahrir legacy so often invoked by those inhabiting the tent cities around the world. Whether intended or not, ‘Shame’ helps us complete this circle of victimization, by illuminating the fallen lives of those who seem to prosper by gaming the system.  For me the real source of ‘shame’ is not this personal humiliation of the characters, but the shamefulness of their constructed societal environments that seems calculated to achieve an acute alienation that suspends ethical judgment, a goal greatly facilitated by the insidious blending of the wonders of cyberspace with the secretarial skills of gifted entrepreneurs.    

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Christopher Hitchens: RIP

20 Dec

 

            I knew Christopher Hitchens casually, envied his rhetorical fluency, abhorred his interventionist cheerleading, and was offended by his arrogantly dismissive manner toward those he deemed his inferiors in debate or discussion. Perhaps, his sociopathic arrogance is epitomized by the kind of explanation he often gave of why he was such a heavy drinker, as for instance,  “..because it makes other people less boring. I have a great terror of being bored.” I confess that someone who needs to drink hard liquor to bear the company of others likely to be a bore, if not a boor!  Presumably as result of his profligate life style, Hitchens surprisingly graduated from Oxford with rather paltry third class honors.  If some non-academic institution of appraisal were available to offset Hitchens’ undeniable gifts of the mind with his deficiencies of character and heart, the Oxford grade would seem deserved even if Hitchens had been a dutiful student.

 

            I was particularly appalled one time when we were on a panel together by the way he insulted a member of the audience for putting a question awkwardly. There was something so chilling about this revelation of character as to cancel out for me his brilliance of expression reinforced by an astonishing erudition. It coheres with his willingness to forgo second thoughts about his advocacy of launching an unlawful aggressive war against Iraq, despite the false pretenses and bloody ordeal that the Iraqi people endured, and continue to endure.

 

            There is no doubt that Hitchens faced his own difficult death bravely, without succumbing to deathbed retreats, whether from stubbornness or authenticity it is hard to say.  He apparently made many people happy with his dogmatic embrace of atheism during a time of religious revival in this country and elsewhere. He had the courage to express his convictions, but not much empathy, and certainly no humility, for those among us who take religion and spirituality seriously.

 

            For reasons never made persuasive, Hitchens, as disappointed Trotskyites often do, lurched to the right in the early 1990s, and for a while even seemed to join the neoconservative dance. He resigned in 2002 as a columnist for The Nation on ideological grounds, and was clearly more comfortable in the slicker, sicker world of Vanity Fair, and also where his work was far more acclaimed.

 

            Hitchens is for me a hard case when it comes to deciding what to remember and what to forget. As indicated, I found his demeanor generally unpleasant in that Oxonian highbrow sense and his late politics reactionary and essentially mindless in the sense of indifference to the relevance of law, truth, and, most of all, the rights of others to shape their own destinies in the spirit of self-determination. At the same time, someone who unabashedly depicted the criminality of Kissinger’s embrace of Pinochet’s torture and crimes against humanity, deserves some sort of post-mortem salute.  As well, like Hitchens disillusioned by the American two party system, I voted for Ralph Nader in the 2000 elections, and although it did not contribute to the Bush victory, I came to reconsider my view that the choice between Bush and Gore was of no consequence. I do retain the view that Nader discussed issues that needed to be confronted, especially relating to the excesses of finance and globalized capitalism that neither party has yet to face, and only recently with the Occupy Movement have such questions started to light up the political sky. In the end it is Hitchens erudite and often illuminating essays and articles on political literature, past and present, which will continue to merit attentive reading and will likely be gratefully cherished for a long time to come. Yet even with respect to his intellectual virtuosity, Hitchens lack of a generosity of spirit darkens all horizons of expectation.

 

            In the end, we need to suspend moral and political judgment, and celebrate those rare human beings whose life and ideas exhibited memorable vividness. Hitchens was one of those: Christopher Hitchens RIP  (Requiescat in Pace)

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Israel and Apartheid? Reflections on the Russell Tribunal on Palestine Session in South Africa

6 Dec

This post is a modified and expanded version of an article published by Al Jazeera a few days ago, and it also a continuation of a series of posts on the general theme of a jurisprudence of conscience.

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            An allegation of apartheid, like genocide, stands for something evil in the public mind, and is associated with the kind of institutionalized racism that owes its name to the governing process of South Africa under white rule. But the crime of apartheid was generalized on the basis of this historical background, and has the status of an international crime. Directing such an allegation at Israel for its overall treatment of the Palestinians is a provocative accusation, but one that increasingly reflects a consensus among objective observers. But it is also the kind of issue that is evaded by established international institutions, including the International Criminal Court (ICC), for at least two reasons: Israel is part of the West, and the West in general enjoys a de facto exemption from accountability under international criminal law; Israel is geopolitically insulated from formal procedures of accountability by the United States and some of its European allies.

 

            For the above reasons if the crime of apartheid associated with Israeli oppression of the Palestinians is to be exposed in a convincing manner, it will depend on an extraordinary procedure of inquiry, one that is constituted outside of the formal operations of the state system, which includes the United Nations and ICC. For this reason, it is entirely appropriate that a tribunal established by free citizens should examine this question under auspices that may not have normal ‘judicial’ credibility and capabilities, but do possess ‘moral’ and ‘political’ credibility. The Russell Tribunal on Palestine (RToP), in my judgment, possesses this moral and political credibility, and thereby makes a courageous and necessary contribution in the struggle to achieve global justice, and close somewhat the law-defying loopholes granted to the cruel purveyors of geopolitics.

 

            Against such a background it is my belief that the recent finding of the Russell RToP that the state of Israel is guilty of the crime of apartheid in relation to the Palestine people should be taken with the utmost seriousness by all those who affirm human solidarity and care about making visible the long ordeal of a suffering and vulnerable people. This finding, and the conditions that give rise to it, are conspicuously ignored by Israel and the United States and Europe, as well as by most media and by the United Nations. Such neglect is partly a result of Israel’s geopolitical weight and partly the widely shared opinion that if a decision on law and rights is rendered by a procedure that is not constituted by governments or international institutions it deserves no respect even if it is the most reliable available means to reveal some ‘inconvenient truths.’

 

            I firmly believe that the Russell Tribunal has credibility as a venue for truth telling despite being established and funded by citizens whose concern about the denial of Palestinian rights and Israeli defiance of international law was not a secret. RToP makes no pretense of being ‘a court’ with enforcement powers, but it does deny allegations of ‘cooking the books’ because its organizers were undoubtedly confident that a verdict of guilt would be rendered, given the fact that most of those sitting in judgment were already on record as critics of Israeli treatment of Palestinians and denial of Palestinian rights under international law. Indeed it is this knowledge in advance, based on abundant and uncontested evidence, which best explains the motivations for mounting the extraordinary organizational effort to raise the funds and handle the logistics required to organize a proceeding of this type without relying on an established bureaucracy. This tribunal made no attempt to discover the truth, although representatives of those accused were formally invited to present their defense, but rather it considers its role to be one of documenting the truth. Israel has made no secret of the policies, laws, and practices that were presented to the panel of jurors in Cape Town, although it characterizes them differently, hides and obscures their application, and insists on a different set of conclusions.

 

            It should be understood that RToP is an ambitious undertaking that has already convened sessions in Barcelona and London, and plans a fourth and final session in New York City during the coming year. This third session in Cape Town is notable for its focus on allegations of apartheid, while the earlier sessions had emphasized the Palestinian core right of self-determination and the criminal accountability of corporate involvement in Israeli violations of international law in their treatment of the Palestinian people.

 

Bertrand Russell’s Historic Initiative     

     

            It was the celebrated British philosopher, Bertrand Russell who suggests in his autobiography that he felt that the world of the mid-1960s needed to know about the Vietnam War in a manner free from self-serving slant and Cold War propaganda, and so he invited leading moral authority figures of global stature to take part in an unrestricted inquiry into the alleged criminality associated with the American role in Vietnam. In Russell’s opening statement at the International War Crimes Tribunal convened in 1966 to investigate the atrocities by the United States in Vietnam, he declared that the initiative had no clear precedent but that such openness was helpful as it allowed the tribunal “to conduct a solemn and historic investigation, uncompelled by reasons of State or other such obligations.”

 

            Russell ended these remarks by making clear the distinctive objective of the undertaking: “May this Tribunal prevent the crime of silence.” In effect, the narration of the criminality is undertaken not primarily to speak truth to power, which is generally deaf to voices from below, at least until they mount a revolutionary challenge, but to speak truth to people, awakening public opinion from its apathy to the responsibilities of being human (concern for the victimized other) and duties as citizens of a free society to ensure that a government acting in its name upholds the law and is not guilty of or complicit in international criminality. Russell expressed this orientation as embodying very grand, some would say grandiose, expectations: “our task is to make mankind bear witness to these crimes and to unite humanity on the side of justice in Vietnam.”

 

            Actually, the outcome of the original Russell Tribunal was virtually unreported at the time (except derisively), and later its work was known only to small coteries of anti-war activists and intellectuals, and even they were often confused at the time about whether such a seemingly one-sided unauthorized event was helpful to the general cause of peace and justice in the world. With the passage of time, the Russell experience has gained in influence and reputation, but it remains an exaggeration to claim, as Marvyn Bennum does in an otherwise excellent article, “Understanding the rational, logic and procedures of the Russell Tribunal,” Cape Argus, 31 Oct 2011] that the Russell tribunals had “a profound impact on world opinion,’ although this historic initiative provided the charismatic example in most respects for subsequent enactments of such an approach, including the RToP.

 

            Unfortunately, although Russell’s words are often invoked as the core justifying claim, the reality after some 45 years is that such undertakings, and there have many since this first one, are rendered almost mute by a media that mostly thinks and feels like a state, which is especially so when the allegations are directed at the United States, a constitutional democracy that sits firmly at the pinnacle of geopolitical power and influence, and although declining at a rapid rate, remains the leader of the last hurrah of the West centric world order. The wall of silence erected by the West does not crumble easily if sustained by the combined corporate and military muscle at the disposal of Washington and its various collaborators in Europe and around the world.

 

            As Russell said in 1967 at the second session of the Vietnam Tribunal, “[w]e are not judges. We are witnesses.” This witnessing is meant to be more politically effective than mere pronouncements of injustice and criminality, and has gradually in recent years become more so. As the state system has itself moved to criminalize certain forms of conduct, and even to establish an International Criminal Court, it seems more plausible for representatives of civil society to demand that the law should be applied to the strong as well as the weak, and to take action of its own in the event of a failure to do so. This makes the type of initiative associated with RToP less of a usurpation of governmental functions. It is an expression of global democratic entitlement and transnational human responsibility: persons acting on their own to do and say what institutions of the state are failing to do and say, that is, assess charges of criminal guilt.

 

            It may seem to be the case that the Vietnam War Crimes Tribunal gave the game away at the outset by putting the words “investigate the atrocities by the United States in Vietnam.” Such provocative language makes us think more carefully about the nature of the game, and how it should be played. To deal with the impunity of the powerful in their abuse of the weak, the supposed uncertainty of outcome in a governmental trial (where some version of the myth of ‘innocent until proven guilty beyond a reasonable doubt’ is in force) is not present in this kind of setting. The very premise of the Russell Tribunal, and the many subsequent reenactments, is that it is the presence of such certainty that generates a sufficiency of moral outrage and political incentive to give rise to the inquiry. Frank Barat, the main organizer of RToP put the issue slightly differently, by observing “[o]ur intention has never been to find out if Israel were guilty or not, nor to start a debate about it. This work has already been done by UN bodies, human rights organizations, aid organizations and countless violated UN Security Council resolutions.” And further, “[i]t is our duty to stand with the oppressed in its quest for justice.”

 

            In this respect those civil society tribunals that try to imitate to enhance their credibility by mimicking a judicial model of inquiry and decision risk generating confusion. They make it more reasonable for critics to point out that if the tribunal purports to be trying to ascertain guilt rather than denounce it on the basis of a preexisting legal consensus, then a pretense of ‘judicial process’ does make itself subject to criticism as a hypocritical fraud. To some extent the recently concluded Kuala Lumpur War Crimes Tribunal, while impressive in many respects, fell into this trap by emphasizing the legal credentials of its ‘judges’ who were almost all exclusively jurists who were only locally known and by putting forward a token defense on behalf of Bush and Blair who were being primarily charged with crimes against the peace in connection with initiating a war of aggression against Iraq in 2003. The Russell Vietnam Tribunal, in contrast, had clearly signaled its rejection of this vocational model of law (that is, law as the exclusive province of those trained and credentialed in law) by using the word ‘atrocities’ in naming itself, by not seeking to appoint individuals with a law background to serve on its panel of judges, and by not mounting any defense on behalf of those accused (although a ritualized invitation was issued to the then American president, Lyndon B Johnson, to do so).  

 

            Obviously this issue raises a question for the future of such civil society efforts to document international criminality. Is it better to mimic the state-centric model of judicial process in a criminal case to the degree possible or is it preferable to produce a morality pageant in which a true story is told with as much passion, reasoning, and proof as available? Of course, international law can be invoked in the pageant model as explained by Barat when he writes that the RToP “by using international law as its basis, proposes a no-nonsense way forward. The law is on the side of the Palestinians, so let’s make good use of it. The Tribunal intends to assist the people working on a just peace for all with the legal means they have crucially been lacking for too long.” [Frank Barat, “What is the point of the Russell Tribunal on Palestine?”  http://www.newint.org/blog/2011/12/01/russell-tribunal-on-palestine/] The pro-Palestinian claim as to international law here seems to correspond with a fair reading of relevant international law on all crucial dividing issues: settlements, Jerusalem, refugees, occupation, land, water, and the utmost issue, self-determination. So stacked it reinforces the moral condemnation. Incidentally, Israel seems to share this assessment as it has used all of its ingenuity and political skill to ensure that peace negotiations are carried on in a perverse atmosphere that excludes the relevance of claims of right with respect to international law. It is such an exclusion in these phony negotiations that allows Israel to rely on ‘facts on the ground’ to overcome

the usual view that unlawful acts cannot generate legal rights. It is true that a genuine ‘peace process’ that considered rights rather than hard power as the basis of compromise and reconciliation would suddenly swing the balance ofequities sharply in favor of Palestinian claims.

 

Goldstone’s Charm

            Realizing that the objective is to overcome ‘silence,’ the RToP was greatly helped by the publication of a slanderous attack on the prospective undertaking in the pages of the New York Times by the notable South African public figure Richard Goldstone. [Goldstone, “Israel and the Apartheid Slander,” NY Times, 31 Oct 2011] Never before in the more than four decades of such proceedings had an influential media venue in the West stooped to take notice of such happenings prior to their occurrence. Not only did Goldstone call global attention to RToP but he created a platform in the most august media outlet in the West for response that was used to advantage by John Dugard, another South African jurist of global stature with special expert credentials as to conditions in Palestine as well as to the experience of apartheid in South Africa. The Goldstone attack suggests that it sometimes better to have enemies than friends!

 

            In the article almost ludicrously Goldstone declared “In Israel, there is no apartheid. Nothing there comes close to the definition of apartheid under the 1998 Rome Statute. ‘Inhumane acts..committed in the context of an institutionalized regigme of systematic oppression and discrimination..’” Really! The list of discriminatory laws, the dual administration of settlements and Palestinians, the checkpoint treatment of Palestinians, the settler only roads, the non-protection of Palestinians living under occupation, the midnight abusive arrests of children certainly suggests a pattern of inhuman acts even to uninformed minds!

 

            Without naming the panel of assessors, among whom were a death camp survivor and French diplomat, Stephane Hessel, a former member of Mandela’s cabinet—Ronald Kasrils—a Nobel Peace Prize Laureate from Northern Ireland, Mairead Maguire, — a world renowned author, Alice Walker — a distinguished English barrister, Michael Mansfield, QC– and a former American congresswoman—Cynthia McKinney. Goldstone simply dismisses these distinguished personalities as  ‘critics whose harsh views of Israel are well known.” The question, of course, is not whether these outstanding personalities have strong opinions on the matter at issue, but whether they deserve our trust based on their reputation for bearing witness truthfully and effectively. [For insightful interviews by Hanan Chehata with these leading RToP participants see the Middle East Monitor website <http://www.middleeastmonitor.org.uk/media-review/event-review/3053-the-russell-tribunal-on-palestine-cape-town&gt;

 

RToP in South Africa: Why? Why not? 

            The RToP chose South Africa as the site for this session on apartheidquite obviously to claim continuity with the universally condemned racist regime that governed the country until 1994. This continuity with the past was strongly reinforced by having Archbishop Emeritus Desmond Tutu, renowned opponent of apartheid in South Africa and someone who early on had compared Israeli treatment of Palestinians with apartheid South Africa, deliver an opening address at the session in Cape Town. This lineage was further reinforced by the presence of the former South Aftican cabinet member Ronald Kastrils, a Jewish member of the RToP panel, as well as receiving testimony from John Dugard, the world respected South African expert familiar with the both realities who had been a prominent opponent of apartheid at home as well as UN HRC Special Rapporteur for Occupied Palestine in which role he pronounced upon the occupation as an instance of the international crime of apartheid.

 

            But there was also some cost paid for emphasizing this link to South Africa, which was the only real basis for Goldstone’s rant directed at RToP. Goldstone called the comparison “an unfair and inaccurate slander against Israel, calculated to retard rather than advance peace negotiations.” In effect, it allows the misleading argument to be made that since there are significant dissimilarities between Israeli treatment of the Palestinians and the South African racist regime the allegation against Israel would seem to rest on the credibility of the comparison. As should be understood by people of good will by now, the apartheid experience in South Africa gave rise to the formulation of an international crime of apartheid as specified in the 1973 International Convention and included in the 2002 Rome Treaty establishing the International Criminal Court, but it does not delimit future occurrences of the crime of apartheid. In this latter legal instrument, apartheid is set forth as one of eleven types of ‘crimes against humanity’ in Article 7(1)(j) of the treaty without any reference to the South African antecedent set of conditions.

 

The Crime of Apartheid

             The most controversial, and at the same time far reaching feature, of the RToP finding was to conclude that Israeli responsibility for establishing an apartheid regime applied not only to Palestinians living under occupation, but also to the Palestinians minority living with discriminatory regulations in Israel and to the Palestinian diaspora consisting of 4-5 million refugees and exiles. Seen in isolation it seems like an unconvincing extension of the meaning of apartheid, even if separated from its South African connection, to consider Palestinian citizens of Israel, even if victims of severe and humbling discrimination, as living under an apartheid regime or even more so to view diaspora Palestinians in this manner. But there is moral and psychopolitical weight to the unanimous view of the RToP jurors that the core right of self-determination applies to the Palestinian people as a whole, including those not living under direct Israeli military control.  It challenges various Israeli efforts to split the Palestinian people, once a unity prior to the establishment of Israel, into a series of fragmentary realities, pitting against one another.The radical fragmentation of the West Bank, with its hundreds of checkpoints and restrictions on mobility and access, is a metaphor for this wider Israelipolicy of undermining Palestinian identity as a sequel to Palestinian dispossession associated with the nakba, conceived of as an ongoing process rather than an event frozen in time.

 

            The RToP divides its rationale for finding guilty of committing the crime of apartheid into three main parts: (1) race as defining identity in Israel/Palestine relations (tribunal agrees that race in the international definition of the crime should be interpreted broadly to include ethnic and national character); (2) inhuman acts (specified in relation to Israeli treatment of Palestinians, as integral to the crime, particularly “colonization and appropriation of Palestinian land” and coercive fragmentation of the Palestinian community in “different physical spaces;” (3) a systematic and institutionalized regime as pervading the subjugation of the Palestinian people (preferential treatment of Jews, dual legal arrangements, restrictions on residence and mobility, deportations and house demolitions are elements

in what the tribunal calls “Israel’s institutionalized regime of domination.”

[See Victor Kattan’s excellent detailed analysis of  the RToP finding of apartheid in his “The Russell Tribunal on Palestine and the Question of Palestine,” al-shabaka brief, 23 Nov 2011, http://al-shabaka.org/policy-brief/russell-tribunal-palestine-and-question-apartheid]

 

Assessing RToP

 

            The importance of the RToP session is to strengthen the civil society case against the Israeli treatment of the Palestinian people. As such, it adds a certain quality of gravitas to such international initiatives as the Freedom Flotilla and the BDS (boycott, divestment, and sanctions) campaign. Thanks to Goldstone, and to the organizational skills of the tribunal, there has also been a certain media visibility for RToP that has been absent in most comparable undertakings including the Kuala Lumpur proceedings against George W. Bush and Tony Blair discussed earlier. In this sense, the crime of silence that disturbed Bertrand Russell during the Vietnam War is still being committed, but it has been to a degree mitigated by the legacy he continues to inspire.

 

            Indirectly, also, the very existence of RToP should encourage states to be more active in exerting their own authority to implement individual accountability under international criminal law via reliance on universal jurisdiction. At present, the impulse to reassert such national agency to supplement weak international enforcement mechanisms has been weakened by a geopolitical backlash led by the United States in the aftermath of the Spanish indictment and British detention of Augusto Pinochet a little more than a decade ago. This struggle between the vitalization of international criminal law and geopolitical actors demanding impunity will help determine whether global governance is primarily a regime of power or becomes over time due to the struggles of the peoples of the world, a regime of just law.

            Finally, we notice that the jurisprudence of conscience, that is, applications of law without punitive capacity in relation to alleged violators, is maturing in two parallel directions. The first illustrated by the Russell legacy, including at the RToP inquiry into Israeli apartheid, rests its methodology on law established by testimony of legal experts and findings of individuals whose credibility depends primarily on their moral authority and cultural stature, a jury of conscience that deserves out trust and respect. The second illustrated to a degree by the Kuala Lumpur proceedings, seeking to replicate the behavior of courts under the informal auspices of civil society, and seeks to base its credibility on a pervasive legal framework, including the makeup of the panel making findings and recommendations and extending to providing a defense on behalf of the government and individuals charged with criminal behavior. Hopefully, the fourth and final session of RToP, to be held in 2012 in the United States, will in addition to providing an overview of the allegations against Israel, also offer guidance to those who see a continuing need for a jurisprudence of conscience as a critical arena of struggle in the ongoing quest for humane global governance.

  

Kuala Lumpur War Crimes Tribunal: Bush and Blair Guilty

29 Nov

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

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Criminal Justice in Kuala Lumpur

 

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

 

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

 

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

 

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

 

The Anti-War Campaign of Mahathir Mohamed

 

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

 

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

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

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

 

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

 

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

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

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

reflect both the populist foundations of a jurisprudence of conscience.

 

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

 

 

Universal Jurisdiction

 

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

 

 

The Move to Civil Society Tribunals

 

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

 

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

 

Justifying Tribunals of Popular Justice and Public Conscience

 

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

 

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

 

The Legalism of the KLWCT

 

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

 

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

 

Tribunals of ‘Conscience’ or of ‘Law’?

 

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

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

 

             

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Toward A Jurisprudence of Conscience

26 Nov

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

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

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

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

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

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

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

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

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

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

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

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Reflections on Two Occupations

23 Nov

 

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

*********

 

 

Reflections on Two Occupations

 

To live             to love

                                                is to occupy           

                                                to be

                                                            occupied

 

By whom             with whom           

Occupy/ing

                        Tahrir Square

                        Wall Street

                        St Paul’s Cathedral

                                                            the world

 

To hope to dream

                                    to act

                                                is

                                                to

                                                            occupy

 

By whom            for whom

To fear to hide

                        to resist

                                                is to be

                                                                        (pre)occupied

            from within

            from without

 

It was once your land

I entered your land

                        picking olives

                                                settling there

Buying occupying

 

Above all remembering

                                                another distant tale

Filled with tears and dying

                                                                       

                                                                        my land

                                                                                    my law                       

                                                            my birthright

 

And now ours to keep:

                        history forgives

                                                what is stolen if time passes quietly

                                   

 

Long ago now

I did ask you to leave

            in a polite voice

                        then a raised voice

                                    then a scream

                                                            then no voice at all

                                    to go             get out

 

All I wanted then was for birds

                                    to sing some old songs

All I wanted was for flowers

                                                to bend toward home

 

And now I declare

            to myself to you

                                    to the world

                                                this occupation will end:

 

The graves

                        already full

 

            as dawn

                                    splits

                                                            the Jerusalem sky in two

 

What is occupied with love lives

What is occupied with force kills

                                                            before it dies and lives again           

                                                                                                            elsewhere

 

I never wanted this earth scorched

                                                            moist with

                                                                        native blood

 

amid the ruins

                        I fight              resist    pray           

 

 

XI/22/2011

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Language, Law, and Truth

21 Nov

 

“The language marches in step with the executioners.

  Therefore we must get a new language.” 

                       Tomas Tranströmer, Night Duty

 

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

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

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

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

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

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

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

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

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

 

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

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

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

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

18 Nov

 

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

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

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

 

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

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

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