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Why a civil society tribunal on Gaza Genocide is necessary.

15 Dec


[Prefatory Note: The questions and responses were made a month ago and now presented in a modified form. The original intention was to cooperate with Aida Naouel Kara Mohammed of The Interviews Office of Aljazeera.net based in Doha Qatar that was gathering  information for a report about the newly formed Gaza Tribunal.]

1-How and when the idea of making “Gaza Tribunal” came?

The idea of a peoples or civil society tribunal on the persisting genocidal assault on the entrapped and blockaded Palestinian civilian population has long been conceived of as a valuable initiative. Yet a specific proposal with adequate funding only came to our attention

when my wife, Hilal Elver, and I were approached in Turkey during May of 2024 by a group of concerned Turkish citizens associated with the Islamic Cooperation Youth Forum inviting  and encouraging us to embark on such a project and asked me to serve as president, and Hilal to act as chief coordinator. We carefully deliberated upon whether we should accept such a proposal given the time-consuming complexities of organizing and carrying out such a project, and considering the political complexities of dealing with an undertaking of this magnitude.

During negotiations we insisted upon a strict pledge of political independence from interference by sponsors and funders, and above all, and by the Turkish Government. As well as independence from all governments. We also made clear that we would only proceed if assured about the exclusion of active politicians or diplomats. Such assurances were given in a persuasive form, and in August 2024, as the genocide intensified and the UN and US seemed in the first case unable and in the second case unwilling to even establish a ceasefire, we accepted this invitation and have been planning the organization, structure, and activities ever since. A successful launch meeting of the Gaza Tribunal Project was held in London on October 31-November 1st with many prominent scholars and activists taking part, including giving great attention to the work of Palestinian civil society grassroots organizations working under harsh conditions prevailing throughout Occupied Palestine.

2-Many nongovernmental organizations participate in this initiative, how do they coordinate and cooperate with each or other?

As a civil society initiative oriented toward lending support to the Palestinian struggle for self-determination and other basic rights, we have sought participation from a wide range of Palestinian NGOs, and have been encouraged by their strongly positive response as evidenced by their participation. We have established a Palestinian Civil Society Working Group as well as Global Civil Society Advisory Council to ensure that there are clear channels for participation and influence. To date there has been excellent cooperation among participating Palestinian organizations and in relation to the global CSOs, and of course we hope this will continue and be reflected in the final

judgment of the Gaza Tribunal. The identity of the Gaza Tribunal is global in its orientation, aiming to mobilize support throughout the world for global solidarity initiatives.

3-What are some of the prominent active organizations?

To varying degrees representatives of many organizations are active and or influential in the work of the GT, including notable Palestinian civil society actors: Al Haq, Palestinian Center of Human Rights,  Addameer, and Al Mezan Center of Human Rights. We have a special working group in the project composed of representatives of Palestinian grassroots and solidarity organizations. We on the Steering Committee of the GTP will turn to them for guidance throughout the entire GT process. We also are responsive to the valuable contributions of such global civic society organizations Amnesty International, Human Rights Watch, Doctors Without Borders, and other civil society organizations and activists wherever situated, including in Israel. We also intend to involve journalists, observers, and experts with a clear knowledge and experience of the violence that has been directed both toward the people of Gaza, but also toward international health and humanitarian aid workers, and indeed any individual of conscience, including poets, novelists, and artists.

4-What are the main goals that the Gaza Tribunal aspires to achieve?

I think a consensus exists among the conveners and sponsors of the Gaza Tribunal Project that we hope to organize the tribunal in such a manner

that its final judgment gives primary emphasis to the particulars of the crime of genocide as perpetrated in Gaza by Israel delimited by international law and the Genocide Convention. It also seeks to complement the International Court of Justice (ICJ) by acting more quickly and by producing texts that are technically competent yet readable by any concerned person without the obstructions of the sort of obscure legalism and boundaries that tend to be characteristic of ICJ judgments. The GT will operate without the guard rails of normal national and international courts, especially those affecting jurisdiction to decide, the scope of criminality that is to be pronounced upon, and especially the professional discipline of giving equal opportunity to complainants and defendants. A peoples tribunal is activated only by a sense of widespread injustice that is not being adequately addressed by the intergovernmental structures of world and their institutional policy tools for implementation (as center in the UN System).

Additional to the text itself and wider than any proceeding before the tribunal is the overall goal of producing an accurate and comprehensive record of what has transpired in Gaza (and spillover combat regionally) since the Hamas attack of October 7, 2023, which itself should be contextualized in terms of prior Israeli provocations over the decades, intensified from the time the Netanyahu took control of Israeli governance at the start of 2023. It is a documentation of the criminal course of action free from jurisdictional restrictions on scope of inquire and from legalistic proceedings that impose boundaries on what kind of evidence and arguments are acceptable.

A further objective is to create a civil society template for a critical understanding and treatment of international law, including the world order significance of the GT experience for the development of an alternative pedagogical paradigm for the teaching and apprehension of international law that seeks to be critical of standard approaches and more dedicated to forging linkages between law and justice. As matters currently stand, the ICJ despite ‘justice’ being in its name veers sharply toward a strictly legalistic and positivist framing of issues it is called upon to resolve. Of course, in extreme circumstance such as Gaza legalistic and populist approaches to international law tend to converge, and the professionalism of the judges at the ICJ gives legitimacy and legal prestige to their rulings even if, as here, the obligatory features of their rulings are neither respected, nor observed, by Israel.

A further goal is to explain and justify a ‘judicial’ proceeding that does not accord due process to the defendant or adversary. Such partisan jurisprudence fills the gap created by the shortcomings of intergovernmental judicial processes even if operating free from geopolitical interference.  Again, if competently and objectively done, this mode of populist adjudication deserves respect, and implementation by private sector solidarity initiatives. For instance, BDS or cultural, sporting, and academic steps responsive to calls for populist modes of ‘enforcement.’ The effective of implementation depends on the degree to which a civil society undertaking has a mobilizing effect on people. The struggle against South African apartheid contains many reasons to believe that global expressions of solidarity strengthens the will and prospects on a national struggle for basic rights.

5-Do you think that your efforts will exert a meaningful inflience?

Yes, if the quality of performance at various stages of the GT live up to its diverse aspirations and potential. A civil society tribunal lacks any direct enforcement capabilities, but it can encourage solidarity initiatives that exert pressure. This seems to have been instrumental in the case of the anti-apartheid movement that differed from the Palestinian situation because the UN exerted an important delegitimizing influence, including by way of several Advisory Opinions of the ICJ. Also organized elements in civil society including faith-based groups, labor unions, and university protest movement supportive of divestment and boycott exerted pressure on the apartheid regime. As well, as with Occupied Palestine, an array of anti-racist pro-constitutional human rights actors were active and effective in delegitimizing apartheid South Africa.

One such established effort in the Palestinian struggle along these lines is the BDS Campaign which was initiated in 2005 by a coalition of Palestinian activists and grassroots organization. A strong judgment by GT, if widely distributed will add legitimacy to such civil society initiatives and give rise to other meaningful non-governmental undertaking including cultural and sports boycotts, and cooperative academic projects involving exchange programs and other interactions with Israel’s university.

The success or disappointment of our efforts will of course reflect the contextual situation, especially whether there continues to be widespread concern about the behavior of Israel toward Palestinian basic rights as well as whether Israel will continue under present or similar leadership. It is possible if Israel implements its increasing overt plans to annex the West Bank, Gaza in whole or in part, and deny any prospect of agreeing to the emergence of a Palestinian state of equivalent sovereignty, the impact of our GT Tribunal could be considerable even if indirect.

Also quite possible is a Zionist led pushback against the GT probably under its familiar tactic of weaponizing antisemitism. There exists a substantial prospect that a Trump presidency will encourage the demonization of the GT and those closely associated. So far, such dark prospects have not discouraged participation in its activities by those whose contributions we have solicited, which include persons prominent in the civic life of their respective country. The US as a geopolitical leader and the principal supporter of Israel despite the transparency in real time of the genocide is an important battleground in the Legitimacy War being waged effectively on behalf of the Palestinian struggle but at great costs if measured in terms of human suffering and traumatized alienation endured by the entire civilian population of Gaza. A recent report on the condition of the mental health of children in Gaza reached the conclusions that 96% of children believe that they will soon die, 49% have lost the will to live, and 100% of surviving children will need psychological help to restore their mental health. [Study and Report of Gaza Community Centre for Crisis Management, supported by the UK-based War-Child Alliance.]

6-Some believe that people have lost hope in such initiatives, what do you respond to them?

Such initiatives have always had to swim against the currents of geopolitical hard power and the mainstream media’s establishment alignments that were dismissive or hostile to such populist challenges. Such statist attitudes were present from the inception of civil society tribunals as a policy instrument of persons opposed to the behavior of states and their institutions. The serious development of this populist approach to law goes back to the formation  of the Russell Tribunal in the mid-1960s addressing the alleged crimes associated with the conduct of the Vietnam War. This first instance of a people’s tribunal did not have a discernable effect on the US conduct of the war, although it energized to some extent anti-war activism in the US and Europe, and pioneered a model of legitimacy challenges that has been emulated in numerous subsequent instances, including tribunal initiatives concerned with nuclear weapons, interventions in the Global South, gender equality, environmental protection, and corporate wrongdoing. In this sense, this civil society format has emerged as a pedagogical model of soft power resistance with variable educational, media, and activist impacts depending on the issue, overall political context, and the skills of the organizers in disseminating the outcome of their tribunal. 

The Palestinian struggle and Israel’s genocide is in many ways a special case, which makes its likely effects either less than hoped for or greater. For one thing Israel learned from apartheid South Africa to use major resources to shape effectively the public discourse relevant to its behavior, including resorting to ‘a politics of distraction’ to divert attention from substantive allegations and criticism by mounting defamatory attacks on the messenger to divert attention from the message.  In this respect Netanyahu and other Israeli leaders have consistently dismissed UN authority, including of the ICJ, with contrary-to-fact defamatory attacks irresponsibly charging UN antisemitism.

Further, the historical background- of Jewish victimization climaxing with the Holocaust continues to inhibit criticism or identification with the Palestinian struggle particularly in Germany but also in the Western democracies, especially the US, that emerged from World War II with a guilty conscience because these governments did so little to oppose Nazi antisemitism culminating in the Holocaust before and during the Second World War. This liberal guilt led to an Orientalist sequel in the postwar context in which Europe’s long history of extreme persecution of Jews were addressed at the expense of people resident in a Global South nation, making Palestinian Arabs themselves persecuted strangers in their own homeland. This is the deep roots of a process that culminated in genocide when Palestinian resistance persisted despite Israeli apartheid policies and practices. Such a pattern of recourse to genocide is embedded in the experience of settler colonialism that long preceded Israeli genocide. While eliminating or marginalizing the resistance of native peoples, settlers from Europe coupled their state-building operations with genocidal tactics in the breakaway British colonies of North America, Australia, and New Zealand in systematic processes. I have labeled this dynamic as ‘genocide before genocide,’ that is before the word ‘genocide’ was invented by Rafael Lemkin and widely adopted throughout the world in the post-Holocaust, written into international law in a widely ratified treaty, International Convention on the Prevention and Punishment of Genocide (1948).

Finally, we who are devoting time and mainstream reputations to the GT acknowledge the uncertainty as to its usefulness. In part, we make this major commitment in response to Michelle Obama’s pre-election imperative then directed at Democrats in the US 2024 pre-electoral setting: ‘Do Something!’ Also, even if a direct impact on Israel’s behavior fails, we are confident that there will be secondary impacts of a high-quality tribunal in relation to future legal education, especially in the Global South. The compilation of a historical record and archive is itself a contribution to a people-oriented approach to the study and application of international law in global security contexts.

I suspect that most of those ‘who lost hope’ never had much hope or belief in ‘such initiative.’

7- Why was the Gaza Tribunal Project launched it in London exactl

The principal reason for locating the November 1 launch in London was to signal and underscore our intention to be global rather than to appear Turkish or even Palestinian. The diverse background of the London participant in this initial meeting of the GT Advisory Council gave full expression to this issue of global identity. London was also logistically convenient. We plan future meetings in other national settings.

8- It’s known at the international level that such initiatives are symbolic, will be there any legal obligations to punish the perpetrators?

Whenever the obligations of international law clash with strong strategic interests of geopolitical actors, especially in relation to war/peace and global security issues, the impacts of even formal governmental or international institutions has been principally symbolic. Israel defies international law and the UN and there is no political will to counteract or even censure such behavior. At most, a non-judgmental call for a ceasefire and a concern about the humanitarian catastrophe being inflicted on the previously entrapped and abused civilian population of Gaza for over 14 months.

And yet, Israel is sufficiently sensitive to the impact of adverse judgments by the ICJ, International Criminal Court (ICC), and the General Assembly as to use all its influence to blunt the effects, including hyperbolic defamation as instanced by characterizing the UN as ‘a vile cesspool of antisemitism’ and trying to use backroom influence to cancel or otherwise nullify the ICC issuance of arrest warrants for Israeli leaders as recommended by the Chief Prosecutor, Karim Khan.  As the Israel historian Tom Segev writes, “Not every criticism against Israel is antisemitic…The moment you say it is antisemitic hate … you take away all legitimacy from the criticism and try to crush the debate.” This is exactly descriptive of the Netanyahu tactics at the UN repeatedly referring to this organization of the world peoples and their governments as an ‘Anti-Israel Flat Earth Society’ and calling the UN ‘a swamp of antisemitic bile.’ Indeed, the UN deserves criticism as weak and incapable of upholding its own Charter and exhibiting no capacity or will to challenge ‘the primacy of geopolitics.’ At least, the president of Turkey, Recep Tayyip Erdogan, has mounted muted criticism of the UN with his catchy slogan ‘the world is greater than five.’

In this sort of context of geopolitically supported lawlessness, the main path leading todd effectiveness for law is symbolic, but the symbolic effects of legitimate political actors, whether inter-governmental or not, are real as evidenced by targeted states doing everything in their power to prevent and discredit them. I have long believed that symbolic arenas of lawmaking should not be trivialized or derided as I argue most emphatically with respect to the existence and activities of the GT. It is always worth remember that the anti-colonial wars since 1945 have all been won by nationalist forces on the symbolic battlefields of legitimacy. In other words, victors in Legitimacy Wars have controlled political outcome in war while competing with militarily superior colonial armies. This is a prime lesson of history, which ‘political realists’ that dominate foreign policy circles and arms merchants wanted banned throughout the lifetime education of their citizenries.

If nothing else, the Gaza Tribunal Project can offer an alternative, TWAIL, or sub-altern pedagogical model of how the interplay of law, morality, and war should be configured and interpreted at this time of planetary danger.

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A Moral Revolution? Reflections on President Obama’s Visit to Hiroshima

5 Jun

There is no doubt that President Barack Obama’s visit to Hiroshima this May crossed some thresholds hitherto taboo. Above all the visit was properly heralded as the first time a sitting American president has dared such a pilgrimage, which has already been critically commented upon by patrioteers in America who still think that the Japanese deserved such a punishment for initiating the war or believed that only such ‘shock and awe’ could induce the Japenese to surrender without a costly invasion of the mainland. As well many in Asia believe that Obama by the visit is unwittingly letting Japan off the accountability hook for its seemingly unrepentant record of atrocities throughout Asia, especially given the perception that the current Prime Minister, Shinzo Abe, is doing his conservative best to reinvigorate Japanese nationalism, and even revive imperial ambitions.

 

Obama is a gifted orator who excels in finding the right words for the occasion, and in Hiroshima his rhetoric soared once more. There he noted “[t]echnological progress without an equivalent progress in human institutions can doom us. The scientific revolution that led to the splitting of the atom requires a moral revolution as well.” Such stirring words would seem to be a call to action, especially when reinforced by a direct challenge: “..among nations like my own that hold nuclear stockpiles, we must have the courage to escape the logic of fear and pursue a world without them.” Obama at Prague in 2009, shortly after being sworn in as president, set forth an inspiring vision along the same lines, yet the small print there and now makes us wonder whether his heart and head are truly aligned. The words flow with grace and even passion, but where are the deeds?

 

As in Prague, Obama expressed the cautionary sentiment in Hiroshima that “[w]e may not realize this goal in my lifetime.” At which point Obama associates himself with the stabilizing agenda of arms control, reducing the size of the stockpile, making the weapons less obtainable by ‘fanatics,’ and implementing nonproliferation goals. Apparently, neither Obama nor the media take note of the tension between eliminating the weaponry and these proposals designed to stabilize the nuclear weapons environment by making it more reliably subject to prudent and rational policies of control. Yet at the same time making proposals to eliminate the weaponry seem less needed, and even at risk of threatening the stability so carefully constructed over the course of decades.

 

The real reason for skepticism about Obama’s approach is his unexplained reasons to defer the abolition of nuclear weaponry to the distant future. When Obama declares that a world without nuclear weapons is not likely to happen in his lifetime without telling us why he is changing his role from an advocate of the needed ‘moral revolution’ so as to achieve the desired political transformation to that of being a subtle endorser of the nuclear status quo. Of course, Obama may be right that negotiating nuclear disarmament will not be easy or quick, but what is the argument against trying, why defer indefinitely?

 

The global setting seems as favorable as it is likely to get. We live at a time when there are no fundamental cleavages among leading sovereign states, all of whom seek to benefit from a robust world economy and to live together without international wars. It would seem to be an overall situation in which dramatic innovations of benefit to the entire world would seem politically attractive. In such an atmosphere why could not Obama have said at Hiroshima, or seven years earlier at Prague, “that during the Cold War people dreamed of a world without nuclear weapons, but the tensions, distrust, and rivalry precluded a reliable disarming process, but now conditions are different. There are no good reasons not to convert dreams of a world without nuclear weapons into a carefully monitored and verified disarmament process, and there are many important reasons to try to do so.” What holds Obama back? Why does he not table a proposal or work with other nuclear governments to produce a realistic timetable to reach nuclear zero?

 

Worse than the seeming absence of what the great theologian, Paul Tillich, called ‘the courage to be’ is the worrisome evidence of double dealing—eloquent words spoken to warn us of the menace of nuclearism coupled with deeds that actually strengthen the hold of nuclearism on the human future. How else should we interpret by plans of the U.S. Government to spend $1 trillion over the next 30 years for the modernization and further development of the existing nuclear weapons arsenal, including provocative plans to develop nuclear weapons with potential battlefield, as opposed to deterrent, missions? Such plans are provocative because they weaken inhibitions on use and tempt other governments to emulate the United States so as offset feared new vulnerabilities to threat and attack. What stands out is the concreteness of the deeds reinforcing the nuclear established order and the abstractness of the words challenging that same order.

 

Beyond this, while calling for a moral revolution, Obama seems at the same time to give his blessings to nuclear energy despite its profound moral shortcomings. Obama views nuclear energy as a contribution to reducing carbon emissions in relation to global warming concerns and as a way to sell nuclear technology abroad and at the same time satisfy the energy goals of countries, such as India, in the global South. What is not acknowledged by Obama is that this nuclear energy technology is extremely dangerous and on balance detrimental in many of the same ways as nuclear weapons, prone to accidents of the sort associated with the incidents at Chernobyl and Fukushima, subject to the hazards of accumulating and disposing of nuclear wastes, vulnerable to nuclear terrorism, and creating the technological capacity for the development of the weapons in a series of additional states.

 

Obama made a point of announcing before visiting Hiroshima that there would be no apology for the attacks by the United States. Clearly, Obama was unwilling to enter a domain that in America remains inflamed by antagonistic beliefs, interpretations, and priorities. There is a scholarly consensus that the war would have soon ended without an invasion or the atomic bomb, but this thesis continues to be challenged by veterans and others who think that the bomb saved American lives, or at minimum, ended the captivity of captured soldiers far sooner than would have been the case without the attacks.

 

In fairness, Obama did acknowledge the unspeakable tragedy for Japanese civilians that experienced the Hiroshima bomb, and he showed real empathy for survivors (hibakusha) who were there in the front rows when he spoke in Hiroshima Memorial Peace Park, but he held back from saying the use of the bomb was wrong, even the second bomb dropped on Nagasaki. Obama’s emphasis, instead, was on working together to make sure that it doesn’t happen again. In this sense, Obama was indirectly legitimating the impunity that was accorded to the victors after World War II, which contrasted with the punitive measures of accountability used to deal with the crimes committed by the surviving leaders of defeated Japan and Germany. The main value of an apology is to bring a degree of closure to those directly and indirectly victimized by those terrible, events that took place more than 70 years ago. By so doing the United States would have moved a bit closer to suspending its self-serving insistence on impunity and this would have withdrawn geopolitical legitimacy from the weaponry.

 

There is something disturbing about America’s unwillingness to live up to the full horror of its past actions even while making a never again pledge. In another recent development that is freighted with similar moral ambiguities, former Senator Bob Kerrey was named the first Chair of the Board of the new Fulbright Vietnam University, a laudable joint educational project of the two countries partly funded by the U.S. Congress, despite his apparent involvement in a shameful atrocity committed during the war. The incident occurred on February 25, 1969 in the village of Thang Phong where a unit of Navy SEALS was assigned the task of assassinating a Viet Cong leader believed to be in the vicinity. Instead of a military encounter, 20 civilians were killed, some brutally. 13 were children and one a pregnant woman.

 

Kerrey contends that the carnage was a result of mistakes, while both a fellow member of the SEALS squad and village residents say that the killing of the civilians was a result of deliberate actions, and not an accident in the darkness. Kerrey received a Bronze Star for the mission, which was reported falsely to his military superiors as resulted in killing 21 Viet Cong militants. What is almost worse, Kerrey kept silent about the incident for more than 30 years, and only spoke about it in public after learning there was about to be a published piece highly critical of his role. Kerrey now says “I have been haunted for 32 years” and explains, “It was not a military victory, it was a tragedy, and I had ordered it.” The weight of the evidence suggests that Kerrey participated as well as ordered the killings, and that although certainly a tragedy it is more properly acknowledged as a severe war crime amounting to an atrocity.

 

We can only imagine what would be the American or Chinese reaction if Japan sent to the United States or China a comparable person to provide an honorific link between the two countries. For instance, sending a Japanese officer to the U.S. who had cruelly administered a POW camp where Americans were held captive and tortured or sending to China a Japanese commander who had participated in some of the grisly happenings associated with ‘the rape of Nanking.’ It is good that Kerrey is finally contrite about his past role and appears to have been genuinely involved in promoting this goodwill encouragement of quality education in Vietnam, yet it seems unacceptably insensitive that he would be chosen to occupy such a position in an educational institution in Vietnam that is named after a prominent American senator who is particularly remembered for his efforts to bringing the Vietnam War to an end.

 

What connects these two seemingly distinct concerns is the steadfast refusal of the United States Government to take responsibility for its past crimes, which ensures that when future political pressures push toward immoral and unlawful behavior a similar disregard for minimal decency will be papered over. Obama’s refusal to consider accountability for the unabashed reliance on torture during the presidency of George W. Bush similarly whitewashes the past while unconvincingly promising to do better in the future. Such a pattern makes a mockery of claims made by Obama on behalf of the United States that unlike its adversaries this is a country that reveres the rule of law whenever it acts at home or abroad. From the pragmatic standpoint of governing America, in fairness, Obama never really had a choice. The political culture would have rebelled against holding the Bush administration accountable for its crime, which brings us closer to the truth of a double standard of suspending the applicability of international criminal law with respect to the policies and practices of the United States while championing individual legal responsibility for its adversaries as an expression of the evolution of moral standards in international life.

 

I believe that double standards has led Obama to put himself forward both as a visionary who seeks a transformed peaceful and just world and also as a geopolitical manager that accepts the job description of the presidency as upholding American global dominance by force as necessary. Now that Obama’s time in the White House is nearing its end we are better able to grasp the incompatibility of his embrace of these two roles, which sadly, and likely tragically, leads to the conclusion that the vision of a world without nuclear weapons was never meant to be more than empty words. What the peoples of the world need to discover over and over again is that the promising words flow easily from the lips of leaders have little significance unless supplemented by a robust movement from below that challenges those who are governing from above. As activists in the 1960s began to understand is that only when the body pushes against the machine will policies incline toward peace and justice, and we in the 21st century will have to rediscover this bit of political wisdom if hope for a nuclear free world is to become a genuine political project.

 

If more than rhetoric is attached to the call for a “moral revolution,” then the place to start would be to question, prior to abandoning, the mentality that is comfortable with double standards when it come to war making and criminal accountability. The whole idea of impunity for the victors and capital punishment for the losers is morally regressive. Both the Obama visit to Hiroshima, as significant as it was, and the Kerrey relationship to the Fulbright Vietnam University, show that American society, even at its best, is far from prepared to take part in the necessary moral revolution.

 

 

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Jeopardizing Japanese ‘Abnormality’: Rejoining the War System

23 Sep

[Prefatory Note: The following post was originally published as an opinion piece in the leading Japanese newspaper, Asahi Shimbun, and appears here with their permission. The link to the Japanese version: http://digital.asahi.com/articles/DA3S11975719.htmlThere are two converging dangers of a new Cold War—one is confronting Russia in the Middle East and Central Asia and the other is confronting China in the South China Sea and elsewhere with a containment mentality within their own immediate sphere of operations. Washington’s encouragement of Prime Minister Abe’s campaign for a ‘normal’ Japan represents a regressive move regionally and globally, and deserves critical attention from a wider geopolitical perspective as well as from the viewpoint of Japan. It may in the end do more to limit the flexibility of the American approach to China than to free Japan from Article 9 constraints, a post-1945 ‘abnormality.’]

 

 

 

Commenting on the Japanese National Security Debate

 

At its peril, most of the world is ignoring the intense Japanese debate that surrounds the passage by the Diet of national security legislation that fulfills Prime Minister Shinzo Abe’s vision of Japan’s proper role in the world of the 21st century. The core of the debate is about whether famous Article 9 of the Constitution can be interpreted to permit Japan to engage in collective defense arrangements around the world. Despite various prior tests of the outer limits of Article 9, and its seeming restriction of international force to territorial self-defense, the new legislation stakes out a far broader claim to engage militarily in a variety of situations around the world.

 

Most profoundly at issue is whether a changed national security environment resulting from issues involving nuclear weaponry, extremist non-state actors, and cyber warfare justify this more expansive approach to the use of force. Clearly, Abe’s belief that Japan’s national interests require an expanded role for force, and specifically the option to take part in overseas collective self-defense underlies the crafting of this new national security legislation.

 

There seems to be other issues at stake as well. The most salient of these is the continuing primacy of the United States in shaping of Japan’s security policy. It is ironic that it was U.S. occupation policy that initially demanded an anti-war clause in the new Japanese constitution, and even more ironic that the current prime minister announced his proposed policy reform with respect to collective self-defense on a state visit to the United States prior to informing the Japanese public. This posture long urged by the U.S. was welcomed by its Secretary of Defense as signaling a Japanese shift from a ‘local’ to a ‘global’ view of national security.

 

Most of the internal Japanese debate, pro and con, has been focused on the constitutional issues, especially on whether Article 9 can be interpreted in a manner that is compatible with collective self-defense and other features of the new security proposals. An informed consensus appears to be a resounding ‘no’ as expressed in expert testimony in the Diet and strong statements of opposition circulated among constitutional law professors in Japan. The effective LDP control of both houses of the Diet ensured from the outset that whatever the government proposed would be approved regardless of public opinion or constitutional objections. What seems clear is that legislative endorsement is only the first step in what is expected to be a lengthy battle in court to determine whether the ‘legalization’ of this contested interpretation of Article 9 survives judicial scrutiny.

 

There are more crucial issues at stake than raised by the legal controversy. Abe has previously argued that Article 9 was imposed on a defeated Japan when it was a helpless country without the capacity to form a national will of its own. In effect, his new approach, presented under the banner of making Japan a ‘Proactive Contributor to Peace’ is a bid to overcome the abnormal situation that existed in Japan after 1945. Flexibility for a sovereign government in defining its security priorities should not be, according to this kind of realist thinking, subject to arbitrary and rigid territorial restrictions that Article 9 has imposed. In effect, the new legislation is not militaristic at all, but a recovery of ‘normalcy,’ a restoration of full Japanese sovereignty in a manner enjoyed by other states.

 

This raises the deepest and most meaningful question: Was Japanese ‘abnormality’ a good or bad thing for the people of Japan and of the world? As someone with a commitment to peace and justice I long ago found the Article 9 approach taken by Japan inspirational, pointing the way toward making the international law of the UN Charter come to life, an example that could beneficially be followed by others, including in my wildest fantasies, by the United States itself. It is also encouraging that the Japanese public appears to agree with the positive contributions of Article 9, opinion polls indicating that a clear majority of the Japanese people oppose the new national security legislation and its implicit endorsement of collective self-defense. As is often the case, society is more peace-oriented than the elected leadership, and when party politics endows those in control of the government a capacity to defy the values and opinions of the citizenry, a crisis for democracy becomes embedded in what is put forward as a revision of security policy in light of changed circumstances.

 

The last question contained in such reflections is whether changed regional and international circumstances justify abandoning Article 9 and the peace mentality associated with it. Although Prime Minister Abe promises to carry forward Japan postwar tradition of ‘peace and prosperity’ this effort to normalize Japan is a deliberate policy rupture, especially when tied so indiscreetly to a more active geopolitical partnership with the United States. From my perspective, Japanese abnormality remains a most precious reality, a beacon pointing toward the kind of ‘new realism’ that the 21st century urgently requires.

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