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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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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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Turkey’s Brilliant Statecraft: The Achievement of Ahmet Davutoglu

15 Nov

   This post is a significantly modified version of an article published by Al Jazeera English  a week ago.

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            By a happy quirk of personal destiny I happened to be in Istanbul recently when the Turkish Foreign Minister Ahmet Davutoglu gave a talk at the opening dinner session of the Istanbul Forum. His theme was the Arab Spring as a defining  historic moment of the post-Cold War era of world politics. In the past I have made no secret of my admiration for the thought and creativity of Mr. Davutoglu’s diplomacy. Since appointed as Turkish foreign minister on May 1, 2009 he has already made in this short period an indelible impact on regional and world affairs. I believe that his exceptional contributions to the statesmanship of our time flow directly from his academic studies carried out prior to his entry into government service, as well as the experience he gained during several years of prominent apprenticeship as Chief Advisor to both the Foreign Minister and Prime Minister. Rarely in my knowledge has a major country allowed its foreign policy to be shaped by a non-politician whose public stature and morally attuned sensibility are based on his intellectual accomplishments. Mr. Davutoglu’s authority rests on an impressive mastery and blending of history, politics, law, ethics, and culture as providing the necessary components for a coherent strategic outlook.

One struggles for contemporary comparisons, finding a few similarly qualified and constructive figures that served their country well by directing its foreign policy. Perhaps the most obvious comparison is with the great Chinese Communist Foreign Minister between 1949-1958, Chou En-lai, who was renowned for his learning and pragmatically sound insights into the foreign policy challenges facing his country at a difficult time of transition. Yet the comparison falters because Chou’s thought and action were derivative from a totalizing ideology, lacked freedom of maneuver in policy given Mao’s stern overall control of the Chinese state, and devoted most of his career to navigating with great skill a turbulent revolutionary struggle within China.

Another comparison that might be the intellectually formidable Dean Acheson who served as the American Secretary of State in the period immediately following World War II, and presided over the formation of efforts to respond both to its role as leader of the West and to the Soviet challenge. His was an articulate and generally sensible pragmatic leadership that deserves generally high praise, but it was anchored in a starkly realist worldview that rejected any mention of normative perspectives based on law, ethics, and justice when contemplating the future of world order. It is precisely this receptivity to the normative foundations of human identity that gives Davutoglu’s worldview its uplifting historical relevance. I would observe that without such an appreciation of law, ethics, and justice Davutoglu would be just one more intelligent realist who spent his time devising how best to manipulate the power configurations confronting his government. At the same time Davutoglu is not a dreamy legalist or moralist in the tradition of Woodrow Wilson; he has a firm grasp of the strategic dimensions of world politics, and his untranslated volume on ‘strategic depth’ is undoubtedly his greatest intellectual contribution up to this point.

 

Comparing Kissinger

In all probability the only recent political figure that possesses an influence and academic credentials comparable to Davutoglu is Henry Kissinger, but having proposed the comparison I need immediately to subvert it mainly for reasons just indicated. Before doing so, it needs to be acknowledged that Kissinger has at this point far exceeded Davutoglu both by his length of tenure at the pinnacles of state power, and by his historical impact, have served a government that possessed the role and status of being the global leader. In contrast, Davutoglu is a relative newcomer, and Turkey is a rising middle power on the global stage, although increasingly a dominant regional presence.

Yet still positive and negative comparisons with Kissinger seems useful. To begin with, Kissinger was a facilitator, not an architect or even an innovator. He was an adept amoral foreign policy entrepreneur who successfully sought and gained entry to the domains of the powerful, and while not a politician, always was prepared to make himself available to do the dirty work of politics. Both Kissinger and Davutoglu share an uncommon ability to think about and explain clearly the most complex international challenges, and both seem endowed with inexhaustible reserves of superhuman energy to implement almost singlehandedly a multi-faceted foreign policy, and neither exhibits great sophistication or appreciation of the economic dimensions of foreign policy, but here the recitation of similarities ends.

Kissinger is stained by his many prevarications and unprincipled approach: extending the war in Vietnam to Cambodia in a manner that allowed, almost coerced, the extremist Khmer Rouge to abandon the countryside, and take over the cities and then harshly impose its will on the entire country by perpetrating one of the worst genocides in history; in the course of diplomatic negotiations to end the Vietnam War, threatening the North Vietnamese with nuclear weapons if they did not give in to American demands in the course of what were supposed to be peace talks; encouraging the military coup in Chile, ironically carried out on 9/11 (although in 1973,) and then backing the notorious dictator, Pinochet, even endorsing Operation Condor, a pre-drone assassination program that inflicted torture and terror on the people of Chile, especially its most idealistic and dedicated youth. Despite his intellectual stature, formidable diplomatic skills, and public recognition, Kissinger is far too compromised ethically and legally to be regarded in a positive light. In this regard, the criticism of Kissinger goes beyond his arch embrace of political realism, and extends to his complicity in the commission of crimes against humanity and war crimes.

Davutoglu has served his government without making any such Faustian Bargains that would suggest that his foreign policy activities are part of an unacknowledged agenda of ambition, international opportunism, and political subservience rather than a reflection of prudence, wisdom, and above all, moral integrity. This quality of principled behavior is what sets Davutoglu permanently apart from the Kissingers of this world, and as unusual as it is for someone of such qualities to rise to such governmental heights, it is probably rarer still, for the presiding politicians in government to seek, welcome, and reward such principled guidance. In this respect, the citizens of Turkey, and really all of us of in the region and the world, should be grateful for the confidence and trust bestowed on Davutoglu by Prime Minister Erdogan and President Gul. It is they who have lifted him from relative academic obscurity to diplomatic eminence, and obviously shared, appreciated, and rewarded his growing number of contributions to Turkish security and influence, as well as to regional peace and justice. This principled consensus was dramatically displayed by the recent visit of the Turkish leadership to Somalia followed by major financial assistance to this most ravaged of African countries. Turkish acceptance of responsibility to lead UN policy toward the 49 Least Developed Countries, beginning with the UN mega-conference held in Istanbul this May is a further demonstration that Turkey’s identity as a principled global actor is more than a reflection of its foreign policy.  

The Republican Inheritance

Perhaps, in this case, the fusion of private religious devotion and public service are connected in ways unique to Turkey that create political space needed for this show of benevolence in government. And here, I think, but it is no more than a conjecture on my part, that some credit needs to be given to the republican legacy of Kemal Ataturk. I say this hesitantly, as an outsider peering inside Turkey through the narrow window slit of my limited knowledge and experience, but it does seem that Turkish secularism, despite its unfortunate excesses, has allowed (for men at least) an effective fusion of religion, morality, and politics at the highest level of the Turkish governing process. Such a fusion has not happened elsewhere in the region. For instance in Iran the Shah tried to mimic the West without establishing a sustainable republicanism. The Shah’s brand of authoritarian rule undermined the moral and religious traditions that derive from the great Persian heritage in the course of embracing a form of modernity that privileged only a small internationalized Iranian elite while consigning the mass of Iranians to seemingly permanent squalor. In the process the Shah left nothing behind by way of constitutionalism on which to build a better Iranian future. Of course, significant blame for Iran’s trials and tribulations is deservedly given to the British/CIA interventions, especially covert moves in 1953 that helped overthrow Iran’s most encouraging democratic movement led by Mohammed Mossadegh, a passionate nationalist. This intervention led to restoring the Iranian monarchy, which established an oppressive police state with the help of its foreign friends. Mossadegh’s sin had been to challenge Western interests by claiming the right to pursue an independent foreign policy, especially through asserting Iranian sovereignty over natural resources by way of the nationalization of the Anglo-Iranian Oil Company. To understand the pattern of Western interventions in the Middle East, follow the oil! Consider in this regard, the current war talk directed at Iran, but also the recent destructive wars fought in Libya and Iraq.

The Iranian Revolution of 1978-79 spun out of this moral and spiritual vacuum that resulted from the Shah’s rule, but without having the benefit of a secular tradition that was both populist and principled. Unfortunately, the new Iran went on to reproduce in theocratic form many of the deformities of power that had precipitated the downfall of the Pahlevi monarchy despite its extensive apparatus of oppressive political rule and its unconditional support in Washington. Kissinger for good reason praised the Shah of Iran in his memoir “as that rarest of things, an unconditional ally.” The concrete embodiments of this submissive Iranian role meant selling oil to apartheid South Africa, as well as opening up its national oil fields to mainly American energy companies and allowing a huge U.S. military presence in the country that included surveillance operations carried out in the Soviet Union from bases in Iran. These comments on Iran are intended to point up how different has been the evolution of modern Turkey, and why someone of Davutoglu’s outlook could not possibly have risen to a position of influence in post-1979 Iran, and if somehow given such an opportunity, would likely have quickly lost the backing of the political leaders of the country, and been forced to return to the sidelines of power.

Before the Arab Spring

The relevance of this detour is to underscore the likely inadequacy of a foreign policy that is either cast adrift from the traditions of a society or that insists on embodying those traditions in a rigid form that is not flexible and normative (respectful of law and morality) enough to address effectively the complexities of the modern world. What Davutoglu possesses as a result of his extraordinary combination of religious devotion and cosmopolitan education is a sophisticated capacity to navigate the waters of global society without getting drawn into power games at home and abroad that are by their nature cut off from principle. In this respect, Davutoglu will never receive or wish for Kissinger’s compliment of being an unconditional ally. A principled ally must always retain the option to act independently, even oppositionally, as the occasion requires. In fact, Davutoglu has been chastised by Big Brother and his think tank minions for taking Turkey out of ‘its lane’ or chided for designing a foreign policy that was premised on the durability of the established order in the Middle East that existed in the region prior to Tahrir Square.  In this respect, Davutoglu was evidently taken as much by surprise as the rest of us by the awakenings throughout the Arab world of this year, not only by their abruptness but also by their originality.

Davutoglu has also been criticized for allowing the relationship with Israel to move from friendship to hostility. If this deterioration is looked upon objectively it becomes clear that Israel was not willing to accommodate the new Turkey that was not just another poodle in the White House kennel. What Turkey did under Davutoglu’s influence, including while he was advising rather than devising Turkish foreign policy included trying to have Hamas after its electoral victory in 2006 treated as a political actor rather than as an ostracized ‘terrorist’ organization, criticized the attacks of Gaza at the end of 2008, and allowed a Turkish NGO to have a prominent role in the Freedom Flotilla that was so crudely attacked by Israeli naval forces in May 31, 2010. This latter attack that resulted in the death of nine Turkish citizens represented a shockingly provocative set of moves by Israel that included executing several of the Turkish humanitarian activists. In response, Turkey sought an apology and some compensation for the families of these victims, but Israel has been unwilling to do either. If Israel were to be capable of pursuing its interests, no more than in the manner of prudent realists, it would seize the olive branch that Turkey has been dangling before its eyes.

To be on occasion controversial in geopolitical circles is almost inevitable whenever a non-Western government seeks to forge its own path, to make its formal political independence into a foundation for the exercise of existential sovereignty. If a Turkish foreign minister were never being criticized in either the West or East he would not be doing his job for Turkey or the world, and should be regarded as inconsequential.

Without entering into a detailed examination of Turkish foreign policy in the Davutoglu years, it is essential to draw a line distinguishing a ‘before’ and ‘after’ in relation to the Arab Spring. Before it was obviously economically beneficial and politically stabilizing to pursue engagement with all countries in the Middle East. Such engagement was premised also on the importance attached to mutual respect for sovereignty, and ultimately, for self-determination, and presupposed what almost all informed observers believed, that the regimes in power were there to stay for the foreseeable future. In this period of ‘zero problems of neighbors’ Turkey raised its foreign policy profile in a positive manner that probably also reflected the heightened difficulties and frustration for Turkey that seemed to negate their strenuous efforts to gain entry to the European Union. The result of these policies seemed to promise over time a mutually beneficial regionalism that also sought to minimize disruptive conflicts. In this regard Turkey made itself available to negotiate peace between Israel and Syria, encouraged peaceful resolution of the Israel/Palestine conflict, attempted to calm the buildup of war threats directed at Iran, and experimented with peace building initiatives to the Balkans and in the Caucasus. Each attempt seemed worthwhile even in retrospect, was done with tact, and produced an inevitable mixture of successes and failures, although overall the economic gains in trade and investment and the diplomatic gains in conflict resolution remain valuable.

After the Arab Spring

Then in January 2011 came the Jasmine Revolution in Tunisia and the effective challenge to the Mubarak autocracy in Egypt. These were remarkable uprisings with still indeterminate revolutionary possibilities, but also containing grave counterrevolutionary risks. What happened in Tunisia and Egypt began happening elsewhere to varying degrees with very different responses: the fires of populist discontent burned brightly in Yemen, Bahrain, and then Syria, Libya, and less so in Morocco and Jordan. Turkish reactions were measured, and Ankara initially used its diplomatic leverage to encourage compromises shaped to avoid bloodshed, especially in Libya and Syria, but as it became clear that the regimes would not accommodate democratic demands, Turkey shifted sides, openly aligning its interests and hopes with the popular struggles. More specifically, this even led to Turkish support for the UN mandated NATO intervention in Libya and increasingly confrontational relations with Syria. As Davutoglu explained when a government shoots and kills its own unarmed citizens so as to retain power, then Turkey will side with such an opposition. In effect, at such a point Turkey’s respect for self-determination shifts its locus from the government to the people.

In my judgment these Turkish realignments were entirely appropriate so long as they did not crossed the line of military intervention. In this regard, I would endorse the Turkish response to Syria while criticizing its support for NATO’s regime-changing military intervention in Libya. These ‘hard choices’ involve difficult decisions of policy in settings of extreme uncertainty as to the effects of deciding to intervene or not to intervene. Put differently, non-intervention can be a form of intervention in some settings, and there is no escaping from a responsibility to act. I would not agree with Davutoglu’s approach in every instance of Turkish foreign policy in the confusing and differentiated national unfoldings after the Arab Spring, but I would strongly affirm the consistency of his principled approach based on this dramatic recalibration of foreign policy tactics and goals in response to the regional turmoil that upset the earlier diplomatic calculus highlighting the benefits of stability and interaction.

 

Redeeming Desire

12 Nov

 

            My digital friend, the respected author and journalist, Erik Wahlberg, sent me a message recently suggesting that I abandon the use of ‘horizons of desire’ as a way of framing human aspirations. He believed, with abundant justification, that desire is tied to consumerism, and the social construction of market demand for the luxurious, the wasteful, and the superfluous. Going further, borrowing from Noam Chomsky’s critique of ‘manufactured consent’ as expressive of mainstream media indoctrination in a liberal society, I would suggest that the term ‘manufactured desire’ might encompass Wahlberg’s appropriate concerns about the excesses of capitalism as promoted via advertizing, including ever more sophisticated techniques of subliminal manipulation. Let me go further, and suggest that due to growing pressures on food, water and energy security, prospects for future wellbeing and even civilizational survival depend on an ultimate repositioning of economic production and consumption around needs rather than wants, finding satisfaction and fulfillment through living in harmony with nature rather than, as now, as a predatory antagonist.

 

            Despite accepting this line of thinking, I am too fond of desire to consign it to ‘the enemy.’ For me desire expresses our spiritual wishes as much, or more so, than our material appetites, and of course, honors our sensuality as a source of love and sacred attachment. As with any virtuous quality, desire can become excessive or malevolent, and must always be realized within an ethical framework of affirmation of ‘the other’ as subject, and never an object. In other words, desire, like its sibling, freedom, must be joined at the hip to an overriding sense of responsibility that includes prudence. Almost all forms of addiction are instances of over-indulging desire, which if contained within an ethos of moderation, would be satisfying and even redemptive.

 

            Such a redemption of desire as a matter of ‘living well’ is distinct from the collective concerns of ‘living well together,’ to borrow again from another seminal thinker of our age, Jacques Derrida. For me, ‘horizons of desire’ supplements ‘horizons of necessity’ (what must be done for the sake of survival and sustainability) and ‘horizons of feasibility’ (what can be done given the constraints and inhibition of politics as usual, that is, politics conceived of as ‘the art of the possible’). What horizons of desire adds is the relevance of dreams, hopes, aspirations for a better, even an ideal, human future, a perfected ‘city of man’ to invoke the dualistic image of St. Augustine.

It is what the utopian imagination and visionary thought contribute to our engagement with the politics of a better tomorrow. It is what Goethe must have meant when he said in the patriarchic idiom of his day, “him who strives he we may save.” Or in my more secular terminology reacting against the closures associated with respecting horizons of feasibility, allow ourselves to be guided hereafter by ‘the politics of impossibility.’ To be more concrete, I believe that the existing gaps between what is necessary and what is possible can only be closed by enlisting desire in the enterprise.

 

            Let me illustrate these abstractions more concretely. On matters of global scope, nuclear weaponry and climate change are swords of Damocles dangling precariously above human destiny. Existing political mechanisms are paralyzed by the shortsightedness of the 1% and the passivity of the 99%, which means that the necessary adaptations are ignored as not feasible. In effect, the threats posed are hidden through an induced narcosis: ‘a psychosis of denial.’ Desire means an awakening, an activism, a readiness to occupy and resist removal.

 

            More narrowly conceived issues have the same structure, whether it is a just process of self-determination for Palestinians, Kashmiris, Kurds, and others or deferred historical justice for the many dispossessed indigenous peoples living in endangered enclaves of deprivation throughout the world or empathetic solidarity with the growing circle of victimization arising from the Fukushima disaster. It is only desire that gives teeth to the rhetoric of solidarity.

 

            For me, acknowledging desire is indistinguishable from the vocation of healing the many wounds of the planet. I believe desire bestows delight and is powerful whether as emotion or fantasy. It is passion unleashed for the sake of the good, the true, and the beautiful.

  

Global Revolution After Tahrir Square

9 Nov


            This history-making global Occupy Movement with a presence in over 900 cities would not have happened in form and substance without the revolutionary awakening of the world’s youth that resulted from the riveting events culminating in the triumphal achievement of driving Hosni Mubarak from the pinnacles of Egyptian state power. We need also to acknowledge that the courage exhibited by those gathered at Tahrir Square might not have been exhibited to the world if not for the earlier charismatic self-immolating martyrdom of an unlicenced street vendor of vegetables, Mohamed Bouazi, in the interior Tunisian city of  Sidi Bouzid on December 17, 2010. Perhaps, as well, the eruptions would have stopped at the Tunisian border were it not for the readiness of Egyptians to erupt after the Alexandria death of Khaled Said on June 6, 2010. This brutal police murder ignited the moral passion of Egyptians, best expressed and widely disseminated through a Facebook campaign, “We are all Khaled Said.” We also must not overlook the mobilizing talents and social networking of digitally minded younger urban Egyptians without whom the movement might never have taken off in the first place, or the later encouragement provided by TV portrayals of the encounters between gangs of Mubarak hooligans and the demonstrators.

 

            History is always over-determined when transformative events are analyzed in the aftermath of their occurrence and so it is, and will be, with Tahrir Square, which has quickly become a shorthand to signify the hopes, fears, and methodology of the 21st century’s first revolutionary moment, both narrowly conceived as an Egyptian happening or more broadly as the inspirational foundation of this revolutionary impulse that has expanded to be a phenomenon of genuine global scope.  What is beyond doubt is that the world Occupy Movement proudly and credibly claims an affinity with Tahrir Square, although not without celebrating their important particularities.  It is reasonable to believe that these numerous protest movements around the world would either not have occurred, or taken a different form without the overall inspiration provided by the several dramas encompassed beneath the banner of the Arab Spring, and not only by Tahrir Square understood in isolation from its regional setting.

 

            I want to stress the unique South-North character of this inspiration as the core of its originality, and relatedness to a broader realignment of the political firmament that is slowly taking account of the collapse of the Euro-centric imperial order that started happening more than half century ago with the collapse of the British rule in India. This decolonizing process still has a long way to go as recent military operations in Libya, threats to Iran, colonialist defiance of Israel to international law daily reminds us. The interventionary currents of transnational political violence continue to flow only in one direction North-South. After World War II the United States militarily replaced the European colonial powers as the principal global custodian of Western interests. This anachronistic West-centricism continues to dominate most international institutions, especially evident in the UN Security Council that constitutionally endows the Euro-American alliance with a veto power used to block many efforts to promote global justice and prevents such emergent political actors as India, Brazil, and Turkey from playing a role commensurate with their stature and influence.

 

            What is exciting, then, about this resonance of Tahrir Square is that the youth of the North looked Southward found inspiration when engaging in their incipient struggle for revolutionary renewal of the world economic and social order, as well as equity in their immediate circumstances. Not only because of its priority in time, but for its conception of how to practice democratic politics outside of governmental structures, this political learning process was evident in the various Occupy sites. The ethos of revolution in Tahrir Square, and elsewhere in the region, with the partial exception of Libya, was nonviolent, youth-dominated, populist, leaderless, without program, demanding drastic change of a democratizing character. On its surface such a revolutionary orientation seems extremely fragile, subject to fragmentation and dissolution once the negatively unifying hated ruler is induced to leave the stage of state power, and if the challenge from below turns out to be more durable, possibly vulnerable to a violent counter-revolutionary restoration of the old regime. The irony of ironies associated with the Arab Spring is that only in Libya does the old order seem gone forever, and there the uprising was tainted in its infancy by its dependence on thousands of NATO air strikes and its reliance on a leadership that seemed mainly contrived to please the West.  When in Egypt a few months ago, in the still exalted aftermath of what was achieved by the January 25th Movement, there was a self-aware and wide chasm between those optimists who spoke in the language of ‘revolution’ and those more cautious observers who claimed only to have been part of an ‘uprising.’ At this moment, these latter more pessimistic interpretations seem more in line with an Egyptian process that can be best described as ‘regime stabilization,’ at least for now.

 

            What happens with the Occupy Movement is of course radically uncertain at present. Is it a bubble that will burst as soon as the first cold wave hits the major cities of the North? Or will it endure long enough to worry the protectors of the established order so that state violence will be unleashed, as always, in the name of ‘law and order’? Are we witnessing the birth pangs of ‘global democracy’ or something else that has yet to be disclosed or lacks a name? We must wait and hope, and maybe pray, above all acting as best we can in solidarity, keeping our gaze fixed on horizons of desire. What is feasible will not do!

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Rejecting Neoliberalism, Renewing the Utopian Imagination

8 Nov


            When the Berlin Wall fell in 1989 two dismal consequences followed that have been rarely acknowledged:

                         –neoliberal orthodoxy became unchallenged and unchallengeable in the formation of global economic policy; the World Economic Forum, convening annually in Davos, became the true capital of world order after the ending of the Cold War. Global policy priorities were set at Davos as capitalist materialism infused what became known as ‘globalization,’ a predatory consumerist that was capital driven rather than people-oriented. The Occupy movement is seeking to reverse this ordering of priorities, insisting on an economy for the 99%, insisting on governance that is accountable, participatory, transparent, and ecologically and ethically responsible, insisting on ‘real democracy.’

 

                        –the utopian imagination was repudiated as inevitably leading to the sorts of demonic politics that was associated with Stalinist rule in the Soviet Union. Not only was utopian politics linked to Stalinism but also to any promise of social and economic justice premised on human equality, and specifically, of course, to the socialist tradition. Instead, what emerged as dominant was a new brand of realism that encouraged accommodation with injustice, a delegitimation of any politics of aspiration, and an extremely alienating and demoralizing political atmosphere that rewarded the ethics of the casino and punished the energies of the workplace. The Occupy movement, whether consciously or not, is restoring the utopian imagination to its rightful role as the patron goddess of desire, the essential spiritual core of any restorative planetary politics of sufficient gravitas. Such a goddess has contempt for what ‘realists’ call realism, and aligns herself with a militant politics of impossibility.

 

            This is not meant to be a lament for the end of the Cold War or the collapse of the Soviet internal and external empire. After the historical achievement of overcoming colonialism, the greatest advance in the struggle for a more humane world was ending Communist rule in Eastern Europe and freeing the various subjugated republics and nationalities that made up the Soviet Union. Two further positive legacies also can be connected with this ending of the Cold War: the lessening of the threat of a major nuclear war and the emergence of a new geopolitical landscape that was the scene of the gradual dismantling of the Western architecture of world order in the early years of the 21st century.

             Critique and reshuffling the relations among states and regions, while necessary is hardly sufficient. The adjustments that have been made are hemmed in by the statist preoccupation with horizons of feasibility that lack will and capacity to meet such globally constituted challenges as climate change, nuclear weapons, global disease and poverty, governmental criminality, and militarism. These fundamental deficiencies of our current circumstance are only perceived in their fullness of menace if we indulge the utopian imagination that alone is able to illuminate distant horizons of necessity and desire.

 

             

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Two Occupations

6 Nov

Two Occupations

 

            As someone who has witnessed the humiliations daily endured by Palestinians living decade after decade under ‘occupation’ the word occupation was for me an inalterably dirty word. I was especially conscious of occupation, especially prolonged occupation of the sort that Israel has imposed on Palestine as synonymous with ‘abuse’ and ‘oppression,’ having just completed intense discussions between leading Israeli and Palestinian voices for peace at an LSE workshop presided over by Mary Kaldor and Lakhdar Brahimi that seemed to have a single Archimedean point of consensus: ‘End the Occupation.’ Personally, I was not so content with such an outcome as it tended to narrow the Palestinian agenda to a kind of ‘land for peace’ formula, ignoring the plight of five million or so territorially dispossessed Palestinians living as refugees or exile, often enduring intolerable situations of vulnerability and deprivation that has continued for generations.

 

And then yesterday I visited ‘OCCUPY LONDON’ at the monumentally beautiful St. Paul’s Cathedral (#OccupyLSX) with some of the extraordinary young people who are making it happen, and quite possibly inventing a better future that seemed to be being enacted before my eyes. Ten days earlier I had a similar experience of exhilaration and hope after visiting Zuccotti Park (#OccupyWallSt) in New York City, witnessing a seemingly chaotic array of innovative synergies finding their common ground in nonviolently opposing what seems wrong in our society, economy, and state and envisioning and insisting upon what might be better, indeed much better. And what I took away is different from what I came with: I left these convivial spaces with an experience of joyful occupation. Of course, the joyful does not cancel out the dismal with respect to occupations, but it shows us that language is alive, grows with experience, and that parallel meanings can coexist even if the realities evoke contradictory ethical and political responses.

 

But also I had the further awakening through a conversation in one of the hospitality tents just outside St. Paul’s with a radiant young Indian woman. She was excited by what was happening around her, but was also worried that the goals of emancipation could not be achieved without new words clearly expressive of the vision of those gathered at these occupation sites. She was particularly concerned about the use of ‘democracy,’ which she felt had been spoiled by the shallowness and unrepresentative nature of her lived experience in democratic societies, and her disillusionment with political parties, campaigns, and elections, which remain the pillars of ‘democratic’ legitimacy. Even though the activists in the tents and on the steps of the cathedral tried to make clear their commitment to revolutionary change by speaking of ‘real democracy’ as gauged by accountability, transparency, participation, equality, justice, and human security in public arenas of decisions. As we spoke I wondered to myself, ‘was she asking too much?’ And then I thought, ‘without asking for the impossible there is no prospect of achieving the possible.’

 

During the conversation I tried my best to be responsive, although the assignment she gave me far exceeded my capabilities. To keep the conversation moving I asked timidly at one point ‘would you be more comfortable with livable politics?’ She smiled softly, obviously unconvinced, and so I tried again, ‘what about convivial politics?’ She liked this suggestion a bit better, or so it seemed, maybe appreciating my effort, but these words still did not capture for her the originality of what she was experiencing and desiring. Even though I disappointed her, I felt that we parted as friends for life. Such is the convivial atmosphere of magnetic energy that fills these occupied spaces with a contagious immediacy of hope.

 

My friend, Shimri, a core participant of the London movement, a vibrant personality of proven commitment, having spent two years in Israeli jails because he refused to serve in the Israeli Defense Forces, is totally preoccupied with what he labels as ‘global democracy,’ and was both my guide at London Occupy site, but also one of three lead organizers of the LSE workshops. He hopes to democratize the United Nations, while helping to light bonfires of expectation in all 900 tent cities around the world, and with his infectious energy he imparts a sense of plausibility to even the most distant horizons of desire. Shimri explains to me the process at work at St. Paul’s as total democracy: daily assembly meetings, no leaders, everyone present can veto any decision, volunteer for any task that is to done, all are entitled to speak, and a Wikipedia spirit of taking a variety of steps without any central guidance that give those participants food to eat, books to read (there is a donated lending library in one of the tents), lectures to attend. There is no hierarchy, no ego, no blueprint. It is a radical atmosphere that suggests what the inner reality of the Paris Commune might have been like, or differently, the optimism of the early counterculture in America during the 1960s. But things are different in 2011: above all, these occupations borrow extensively from the heroics of Tahrir Square, and more generally are a sequel to the Arab Spring, and there is more sense of unmanageable challenge associated with the failures of existing crisis managers (it happened that the disastrous G-20 meeting in Cannes was happening over this very weekend). This debt to Egypt is overtly acknowledged in different ways in London. For instance, Shimri has a big sign in front of his tent with the words ‘Global Mubarak,’ and across from the cathedral is a London street sign that looks like the real thing,

with the words ‘Tahrir Square.’ And in its way, it was the real thing. This was Tahrir Square! At least for now! In important respects Occupy London LSK also spreace across the ocean from #OccupyWallSt, and in substance resembles the greater preoccupation of the EuroAmerican protests with the failures of the economy rather than the oppressive burdens on the populace associated with autocratic rule. In this regard it is helpful not to think too literally about the Global Mubarak metaphor. Whatever else it makes the transnational link, and defers to a flow of influence from South to North, which is itself evidence of a decolonizaing of the colonial mind, a process that still has a long way to go!  

 

I came away with many reflections, but above all the fervent conviction that almost all of us would be far better off if these young people filling the squares around the world were put in charge of our collective future. I for one would rather live in their world than in the current G-20 world. For sure, there would be an end to war and militarism, the human footprint on the planet would be lightened, consumerism repudiated and defetishized, poverty would be overcome, voting would be done without taking national boundaries too seriously, accountability would be determined by a rule of law that treated equals equally. I also realized that this brave confrontation with the established order might yet be ruthlessly crushed if our current angels of entropy become threatened, and decide to turned loose their hooligan legions., recalling the bloody end of the Paris Commune or the sad fate of the idealistic Soviets that ironically were among the first victims of the Russian Revolution. But this look back at dashed hopes in the past was my momentary daytime nightmare that vanished from consciousness as soon as I awoke and looked around me at the bright eyes of those standing close by.

 

I will save some other commentary for a later time, and only write now that part of what was happening in these civic zones of engagement was the revalidation of the utopian imagination, a necessary ingredient of any transformative politics. If we are to find ‘solutions’ we all need quickly to liberate our imaginations from the tyranny of ‘the feasible.’ The ‘realists’ presently holding the reins of power are unknowingly inhabiting realms of fantasy while the train of history approaches the station named DOOM. The young people are coming to admit this grim realization, and for this the rest of us can be thankful, enough so to allow ourselves the momentary privilege of hope.

 

Also, it is important that this first global dispersed expression did not start in the West. Even after the collapse of colonialism, the West has run the world. This is beginning to change with America’s decline and Europe’s muddle. That the Arab popular movements should awaken the underclasses, the 99%, in the West is one of the strangest geopolitical occurrences of the last hundred years.

Almost anywhere else on the planet would have seemed a more plausible staging ground for the reinvention of transformative politics in a global setting. It also illustrated the irrelevance of 9/11 and Islamophobia to the priorities and tactics of globalization-from-below, or what might be called ‘moral globalization.’

 

 



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Goldstone’s Folly: Disappointing and Perverse

4 Nov

This post is a slightly revised version of an online article published yesterday by Al jazeera English.

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            Surely, the New York Times would not dare turn down a piece from the new Richard Goldstone who had already recast himself as the self-appointed guardian of Israel’s world reputation even as he had earlier been anointed as the distinguished jurist who admirably put aside his ethnic identity and personal affiliations when it came to carrying out his professional work as a specialist in international criminal law or in carrying out high profile investigative and factfinding missions in the international arena. Goldstone was even seemingly willing to confront the Zionist furies of Israel when criticized by one of their own adherents in chairing the UN panel appointed to consider allegations of Israeli war crimes during the Gaza War of 2008-09 .

 

A few months ago Goldstone took the unseemly step of unilaterally retracting a central conclusion of the ‘Goldstone Report’ during those attacks on Gaza. The former judge wrote, then in a column in the Washington Post, that the Goldstone Report would have been different if he had known then what he came to know now, an arrogant assertion considering that he was but one of four panel members designated by the UN Human Rights Council, and considering that the other three publicly reaffirmed their confidence in the original conclusion as presented in the report written and released months earlier. What should have been discrediting of this earlier Goldstone effort to restore his tarnished Zionist credentials was this failure to consult with other members of the team before rushing into print with his seemingly opportunistic change of heart. It is also of interest that he chooses to exhibit this new role on the pages of the newspapers of record in the United States, and reportedly escalated the tone and substance of his retraction after the Times rejected the original version of the piece supposedly because it was too bland. To get into print with this wobbly change of position, Goldstone went to these extraordinary lengths.

 

            Now on the eve of the third session of the Russell Tribunal on Palestine scheduled to be held in Cape Town between November 5-7 Goldstone has again come to the defense of Israel in a highly partisan manner that abandons any pretense of judicious respect for either the legal duties of those with power or the legal rights of those in vulnerable circumstances. Recourse to a quality tribunal of the people, in this instance constituted by and participated in by those with the highest moral authority and specialized knowledge, is a constructive and serious response to the failure of governments and international institutions to declare and implement international criminal law over the course of many years, and the unavailability of either the International Court of Justice or the International Criminal Court. Persons of good will should welcome these laudable efforts by the Russell NGO as overdue rather angrily dismiss them as Goldstone does because of their supposed interference with non-existent and long futile negotiations between the parties. Those who will sit as jurors to assess these charges of apartheid against Israel are world class moral authority figures whose response to the apartheid charge will be assisted by the testimony of experts on the conflict and by jurists of global stature. It should embarrass Goldstone to write derisively of such iconic South African personalities as Archbishop Emeritus Desmond Tutu and Ronnie Kasrils or internationally renowned figures such as the morally driven novelist Alice Walker, Nobel Peace Prize winner Mairead Maguire, former member of the U.S. Congress Cynthia McKinney, the 93 year old Holocaust survivor and French ambassador, Stephane Hessel, as well as several other person of high repute.

 

A further imprimatur of respectability is given to the Russell Tribunal by the participation in the event of Goldstone’s once close colleague, John Dugard, who is internationally regarded as South Africa’s most trusted voice whenever legal comparisons are made between apartheid as practiced in South Africa and alleged in Palestine. Professor Dugard will play a leading role in the Russell proceedings by offering expert testimony in support of the legal argument for charging Israel with the crime of apartheid. Professor Dugard, a widely esteemed international lawyer and global public figure, who was scrupulous in his efforts to report truthfully on the situation of occupied Palestine while acting for seven years as Special Rapporteur for the UN Human Rights Council, which led him already in that role, despite his cautious legal temperament, to allege the apartheid character of the occupation in his formal reports submitted to the United Nations several years ago.

 

Goldstone condemns the venture before it begins without acknowledging the participation of these distinguished participants, scorning this inquiry into the injustice and criminality of Israeli discriminatory practices associated with its prolonged occupation of Palestine by contending that it is intended as an “assault” on Israel with the “aim to isolate, demonize and delegitimize” the country.  In the most aggressive prosecutorial style, Goldstone demonizes these unnamed Russell jurors as biased individuals who hold “harsh views of Israel.” The new Goldstone adopts the standard Israel practice of denigrating the auspices and by condemning any critical voices, however qualified and honest they may be, without bothering to take a serious look at the plausibility of the apartheid allegations. The fact that those familiar with the Israeli policies are sharp critics does not invalidate their observations but raises substantive challenges that can only be met by producing convincing countervailing evidence. Unbalanced realities can only be accurately portrayed by a one-sided assessment if truthfulness is to be the guide to decide whether bias is present or not. If the message contains unpleasant news then it deserves respect precisely because delivered by a trustworthy messenger. It should be reflected upon with respect rather than summarily dismissed because this particular messenger has the credibility associated with an impeccable professional reputation, and strengthened in the context of the Russell Tribunal by a wealth of prior experience that predisposed and prepared her or him to compose a message with a particular slant.

 

The central Goldstone contention is that to charge Israel with the crime of apartheid is a form of “slander” that in his words is not only “false and malicious” but also “precludes, rather than promotes, peace and harmony.”

Of course, it is necessary to await the deliberations of the Russell Tribunal to determine whether allegations of apartheid are irresponsible accusations by hostile critics or are grounded, as I believe, in the reality of a systematic legal regime of discriminatory separation of privileged Israelis, especially several hundred thousand unlawful settlers, from rightless and often dispossessed Palestinians, who are indigenous to the land so long occupied by Israel. The Rome Statute of the International Criminal Court treats apartheid as one among several types of crime against humanity, and associates its commission with systematic and severe discrimination.

 

Although the crime derives its name from the South African experience that ended in 1994 it has now been generalized to refer to any condition that imposes an oppressive regime based on group identity and designed to benefit a dominating collectivity that coercively through its control of the legal system abuses a subjugated collectivity. It is true that ‘race’ is the basis for drawing the dividing line between the two collectivities, but the legal definition of race has been expanded to make it clear beyond reasonable doubt that the practice of apartheid can be properly associated with any form of group antagonism that is translated into a legal regime incorporating inequality as its core feature. This includes regimes that base their human classification of belonging to a group by reference to national and ethnic identity as is the case with regard to Israelis and Palestinians. The government of Israel has itself drawn attention to this ethno/religious divide by demanding that its Palestinian minority and the Palestinian Authority formally accept its character as ‘a Jewish state.’

 

The overwhelming evidence of systematic discrimination is impossible to overlook in any objective description of the Israel’s current occupation of the West Bank, and to a lesser degree, East Jerusalem. The pattern of establishing settlements for Israelis throughout the West Bank not only violates the prohibition in international humanitarian law against transferring members of the occupying population to an occupied territory. It also creates the operational rationalization by Israel for the establishment of a legal regime of separation and subjugation. From this settlement phenomenon follows an Israeli community protected by Israeli security forces, provided at great expense with a network of settler only roads, enjoying Israeli constitutional protection, and given direct unregulated access to Israel. What also follows is a Palestinian community subject to often abusive military administration without the protection of effective rights, living with great daily difficulty due to many burdensome restrictions on mobility, and subject to an array of humiliating and dangerous conditions that include frequent Israeli use of arbitrary and excessive force, house demolitions, nighttime arrests and detentions that subjects Palestinians as a whole to a lifetime ordeal of acute human insecurity. The contrast of these two sets of conditions, translated into operative legal regimes, for two peoples living side by side makes the allegations of apartheid seem persuasive, and if a slander is present then it attributed to those who like Goldstone seek to defame and discredit the Russell Tribunal’s heroic attempt to challenge the scandal of silence that has allowed Israel to perpetrate injustice without accountability.

 

Goldstone’s preemptive strike against the Russell Tribunal is hard to take seriously. It is formulated in such a way as to mislead and confuse a generally uninformed public. For instance, he devotes much space in the column to paint a generally rosy (and false) picture of recent conditions of life experienced by the Palestinian minority in Israel without even taking note of their historic experience of expulsion, the nakba. He dramatically understates the deplorable status of Palestinian Israelis who live as a discriminated minority despite enjoying some of the prerogatives of Israeli citizenship.  Goldstone’s main diversionary contention is that apartheid cannot be credibly alleged in such a constitutional setting where Palestinian are currently accorded citizenship rights, and he never dares to raise the question of what it means to ask Palestinian Muslims and Christians to pledge allegiance to ‘a Jewish state,’ by its nature as a fracturing of community based on racially based inequality. Few would argue that this pattern of unacceptable inequality adds up to an apartheid structure within Israel, and the Russell allegation does not so argue, and is likely to forego making the apartheid charge associated with the events surrounding the founding of Israel in the late 1940s because from an international law perspective they took place before apartheid was criminalized in the mid-1970s.

 

The Tribunal is focusing its attention on the situation existing in the West Bank that has been occupied since 1967. John Dugard has issued a statement to clear the air, indicating that his testimony will be devoted exclusively to the existence of conditions of apartheid obtaining in the occupied territories, which reflects his special competence. [See Statement of John Dugard, “Apartheid and the Occupation of Palestine,” Aljazeera, 4 Nov. 2011; ] That Dugard had to issue such a statement is a kind of backhanded tribute to the success of the Goldstone hasbara effort to divert and distort. For Goldstone to refute the apartheid contention by turning to the present situation within Israel itself, while at the same time virtually ignoring the allegation principally concerned with the occupation is a stunning display of bad faith. He knows better. Goldstone avoids any reference to the Israeli mass expulsion of Palestinians from their land in 1948 and the subsequent destruction of hundreds of Palestinian villages when he attempts to refute the apartheid allegation, which would likely be viewed as legally dubious because of its retroactivity.

 

With shameless abandon Goldstone relies in his diatribe on another debater’s trick by insisting that apartheid is a narrowly circumscribed racial crime of the exact sort that existed in South Africa is certainly disingenuous. Goldstone takes scant account of the explicit legal intent, as embodied in the authoritative Rome Statute and in the International Convention on the Crime of Apartheid, to understand race in a much broader sense that applies to the Israeli/Palestine interaction if its systematic and legally encoded discriminatory character can be convincingly established as I believe is the case.

 

The sad saga of Richard Goldstone’s descent from pinnacles of respect and trust to this shabby role as legal gladiator recklessly jousting on behalf of Israel is as unbecoming as it is unpersuasive. It is undoubtedly a process more personal and complex than caving in to Zionist pressures, which were even nastier and more overt than usual, as well as being clearly defamatory, but what exactly has led to his radical shift in position remains a mystery. As yet there is neither an autobiographical account nor a convincing third party interpretation. Goldstone himself has been silent on this score, seeming to want us to believe that he is now as much a man of the law as ever, but only persisting in his impartial and lifelong attempt to allow the chips to fall where they may.  Given his polemical manipulation of the facts and arguments makes us doubt any such self-serving explanation based on the alleged continuities of professionalism. It is my judgment that enough is now known to acknowledge Goldstone’s justifiable fall from grace, and for his own sake it is unfortunate that Goldstone did not choose a silent retreat from the fray rather than to reinvent himself as a prominent Israeli apologist.

 

Palestinian suffering and denial of legal rights is sufficiently grounded in reality that the defection of such an influential witness amounts to a further assault not only on Palestinian wellbeing but also on the wider struggle to achieve justice, peace, and security for both peoples. Contrary to Goldstone protestations about the Russell Tribunal striking a blow against hopes for resolving the conflict, it is the Goldstones of this world that are producing the smokescreens behind which the very possibility of a two-state solution has been deliberately destroyed by Israel’s tactics of delay while accelerating its policies of expansion and encroachment.

 

In the end if there is ever to emerge a just and sustainable peace it will be thanks to many forms of Palestinian resistance and a related campaign of global solidarity of which the Russell Tribunal promises to make a notable contribution. We should all remember that it is hard to render the truth until we render the truth however ugly it may turn out to be!   

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Missing the Point Twice: International Law as Empire’s Sunday Suit

15 Oct


 

            In a recent speech at the Harvard Law School, John Brennan, President Obama’s chief advisor on counterterrorism and homeland security, boldly declared: “I’ve developed a profound appreciation for the role that our values, especially the rule of law, play in keeping our country safe.”  The most notable feature of the remarks that followed was the legal rationalization put forth for targeting killing of civilian terrorist suspects distant from ‘the hot battlefield’ even if not engaged in activities that could be reasonably viewed as posing an imminent threat to security of the United States.

 

In effect, post-9/11 American ideas of self-defense incorporate by stealth the Bush Doctrine of preemptive war used to justify aggression against Iraq in 2003, which had seemed discredited in international until quietly revived by the Obama presidency. The entire world is treated as part of the operational battlefield in the so-called ‘long war,’ and civilians, such as the religious ideologue Anwar al-Awlaki, killed on September 30, 2011 in a remote region of Yemen as if he was a soldier at war. This purported legalization of drone attacks carried out in foreign countries represents a unilateral extension of international law, as well as establishes a precedent that would not be tolerated if claimed by any country hostile to the United States. Involved here is the de facto amendment of the right of self-defense in a manner inconsistent with both the understanding embedded in Articles 2(4) and 51 of the UN Charter and of contemporary international law as interpreted by a majority in the International Court of Justice in the Nicaragua case decided in 1986. The United States now sets the new rules that override the old rules, and then limits their availability to others by restrictions based on geopolitical criteria of ‘friend’ and ‘enemy.’

 

            All that Brennan offered in support of such an imperial claim was the assurance that the United States is careful in the execution of these attacks, seeking to minimize the risk of mistaken identity and taking steps to ensure that the attacks take place in situations where the risks of unintended ‘collateral damage’ are reduced to the minimum. The credibility of this reassurance is insulated from inquiry by secrecy, a total lack of transparency that is supposedly justified by the need to protect intelligence sources. There is also no independent post-attack independent inquiry as to whether the targeted individual might have captured rather than executed, whether there existed a sufficient threat of involvement in dangerous activities to warrant such at attack, whether the government of the country involved gave its consent voluntarily, and whether there is or should be accountability for errors. Such a procedure can only be understood as an effort to establish a system of imperial global governance in relation to the use of force.  If this constitutes the way American ‘values’ deploy ‘the rule of law’ it would seem to reflect the most cynical reliance on ‘law’ as propaganda, while at the same time discarding the proper role of law as a constraint on violence. It is also relevant that the unusual amount of attention given to the al-Awlaki execution results from his American citizenship, which implies the regressive understanding of law that there are no grounds for a serious American concern if the target is non-American regardless of the innocence of the person or the fact that he or she are being killed in their homeland and citizenship. Such a world we are making for ourselves and others.

 

            In March of 2011, in a spirited address to the American Society of International Law, Harold Koh, Legal Advisor to the Secretary of State, also spoke glowingly about the commitment of the United States during the Obama presidency of “living our values by respecting the role of law.” He went on to explain that this mean “following universal standards, not double standards.”

These legalist sentiments were deemed by Koh to be so central to his argument as to be printed in bold lettering for emphasis.

 

What should strike any reasonably objective person is the crude hypocrisy of an American government official rejecting double standards while simultaneously engaging in political gymnastics to avoid acknowledging the unlawfulness of Israel’s behavior: the United States stands practically alone in the world in refusing to condemn Israeli settlements in occupied Palestine, in denying Palestinian statehood at the UN, in endorsing the collective punishment inflicted on the civilian population of Gaza for more than four years; in repudiating the recommendations of the Goldstone Report. Indeed, U.S. foreign policy toward Israel is the most glaring and punitive instance of double standards with respect to international law that exists in the world today.  But it far from the only example. Other prominent instances exist in many crucial domains of global policy: as with the nuclear weapons states that maintain arsenals of weapons without accepting restrictions on their use and non-nuclear pariah states that under the geopolitically managed NPT regime are threatened with military attack for supposedly seeking such weapons; as with the identity of those political leaders and military commanders who are prosecuted for international crimes and those who enjoy a condition of de facto impunity; and as to states that could be invaded by reliance on the norm of ‘responsibility to protect’ and those against which such action is inconceivable however much the territorial population is confronted by dire threats to its wellbeing and survival.

 

I am less shocked by the behavior of the United States, which reflects its grand strategy, than by this insistence on stretching the meaning of the most fundamental legal rules and principles to satisfy foreign policy priorities.

For esteemed international law figures such as Harold Koh, formerly a distinguished human rights scholar and dean of the Yale Law School, to make such bold assertions about the post-9/11 law, validating drone warfare, without even bothering to acknowledge doubts as to the wisdom and acceptability of such a course is to embrace jurisprudential nihilism in two senses—first, by undermining the authority of international law by showing that it can always be extended unilaterally to serve the interests of the powerful, and operates otherwise to discipline weak states; and secondly, by creating a precedent that will not be honored as ‘law’ if invoked by others- witness the hysterical reaction to the shaky claim that Iran was plotting the assassination of the Saudi Arabian ambassador to the United States. What is sauce for the geopolitical goose seems to be poison for the pariah gander!

 

            There are respectable reasons to suggest that international law of war and peace that has evolved over the centuries to deal with conflict among states, and as such needs to be revised to take account of non-state actors and networks, as well as in response to the global horizoning of many interactions in the world of the 21st century. But there are no respectable reasons to contend that dominant states can exercise a military option wherever they choose, and then have the temerity to call this behavior ‘lawful.’

 

Michael Rosen, an ideological apologist for the executions of Osama Bin Laden and Al-Awlaki, writing in The American, the magazine published by the American Enterprise Institute (the right-wing think tank) put his support for drone military activity this way: “But in the civilized world..increasingly.. targeted by Islamist terror, we must continue to return fire by robustly targeting the terror masters.” At least such an assertion

does not pretend to provide an international law justification, although it does stretch the U.S. Congress’s 2001 Authorization of the Use of Military Force, designed to reach those involved in the 9/11 attacks, to validate the execution Al-Awlaki who has never been accused of having any relationship to 9/11. It also most unacceptably sets up this long repudiated moral contrast between ‘the civilized world’ and the rest that has so often in modern times been used to justify violence by the West against the non-West. I had hoped that the collapse of colonialism would have at least discouraged the use of such a tasteless rhetoric of comparison.

 

            There is a final point. Living in a region that is subject to drone attacks as in the tribal areas of Waziristan is terrifying for the population as a whole. This ill-defined vulnerability helps explain the severe hostility to the United States that exists among the Pakistani people and led to a unanimous resolution adopted on May 14, 2011 by the Pakistan parliament demanding that the executive branch uphold Pakistan’s sovereignty by disallowing any future drone strikes on its territory, and if they continue to cut off NATO supplies destined for the Afghanistan War. Supporters of the resolution have sought implementation through the courts, and a Lahore judge has ordered Pakistan foreign minister to submit detailed responses to issues raised. It is one thing to assess the reasonableness and proportionality of a targeted killing, including by reference to collateral damage by reference to the person(s) targeted, but such an appraisal fails to take any account of the more pervasive and inevitable collateral damage caused by producing intense insecurity on the part of an utterly defenseless civilian population as a whole.  As far as I have seen this latter dimension of state terror associated with these new modalities of surveillance, intelligence operations, and robotic militarism never considers the psychological harm being done to the people of the targeted country. This raises issues bearing on the right to life as a fundamental right of all persons under international human rights law.

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