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Rogue States Sanction the International Criminal Court  

26 Jun

[Prefatory Note: This post is a slightly modified version of an editorial contribution to TMS (Transcend Media Service), June 22-28, 2020).]

 

Sanctioning the International Criminal Court

 

Even Orwell would be at a loss to make sense of some of the recent anticsof leading governments. We would expect Orwell to be out-satirized by the American actions to impose penalties and sanctions on officials of the International Criminal Court, not because they are accused of acting improperly or seem guilty of some kind of corruption or malfeasance, but because they were doing their appointed jobs carefully, yet fearlessly and in accord with their proper role. Their supposed wrongdoing was to accept the request for an investigation into allegations of war crimes committed in Afghanistan by military personnel and intelligence experts of the U.S. armed forces, the Taliban, and the Afghan military. It seemed beyond reasonable doubt that frequent war crimes and crimes against humanity have occurred in Afghanistan ever since the U.S.-led regime-changing attack in 2002, followed by many years of occupation and continuous combat amid a hostile population.

 

It should be noted that Israel is equally infuriated that the ICC has affirmed the authority of its Prosecutor, Fatou Bensouda, to investigate allegations by Palestine of war crimes and crimes against humanity committed in the Occupied Palestinian Territories (OPT) of the West Bank, East Jerusalem, and Gaza. These allegations include the unlawful transfer of Israeli civilians to establish settlements in the OPT as well as administrative structures and practices that constitute violations of the criminal prohibition on apartheid. Netanyahu, like his Washington sibling, has called for the ICC to be subject to sanctions for staging this ‘full frontal attack’ on Israeli democracy and  on ‘the Jewish people’s right to live in Israel,’ a ridiculous contention on its face. The Israeli Prime Minister seems to be contending that Israel as a sovereign state has the right to defend itself as it wishes, and should not be impeded by any obligation to respect international criminal law, or for that matter, any external source of authority, including the United Nations. Such a defiant claim, and the abusive practices and policies that have followed over many years, amounts to a crass affirmation of what I have elsewhere called ‘gangster geopolitics.’

 

Of course, Israel or the United States would be given broad latitude to make arguments in support of their innocence or their jurisdictional claims that the ICC lacked authority to prosecute, but these U.S. and Israel objections are not complaining about encroachments by the ICC on their right to mount legal defenses, but rather on the far more radical idea involving a total denial of international legal accountability. These two  rogue states refuse to accept even the authority of the ICC to determine whether or not it has jurisdiction to consider the criminal charges. This kind of repudiation of an international institution that has been acting responsibly, well within their legal framework set forth in the Rome Statute, an international treaty, represents an unprecedented and extreme expression of anti-internationalism.

 

The angry American pushback did not bother contesting the substantive allegations, but denied only the jurisdictional authority of the ICC, and attacked the audacity of this international entity for supposing that it could investigate, much less prosecute and punish the representatives of such a mighty state that, by implication, should never, no matter what, be held internationally accountable. When the ICC was investigating, and indicting, only African leaders few Western eyebrows were raised, but recently when the Court dared ever so gingerly to treat equals equally in accord with its own legal framework—the Rome Statute of 2000—it had in Washington’s and Tel Aviv’s eyes so overstepped its unspoken limits as to itself become a wrongdoer, and by this outlandish logic, making the institution and its officials legitimate targets for sanctions. What this kind of unprecedented punitive pushback against ICC officials amounts to is a notable rejection of the global rule of law when it comes to international crime and a crude geopolitical reminder to international institutions that ‘impunity’ and ‘double standards’ remain an operational principal norm of world order.

 

Speaking for the U.S. Government the response of the American Secretary of State, Mike Pompeo, stunningly exhibited the hubris that became the American global brand well before Donald Trump disgraced the country and harmed the peoples of the world during his tenure as president. Pompeo’s reaction to the unanimous approval of the Prosecutor’s request to investigate war crimes in Afghanistan was little other than seizing the occasion to insult the ICC by describing it as “little more than a political tool employed by unaccountable international elites.” Such a statement crosses the borders of absurdity given the abundant documentation of numerous U.S. crimes in Afghanistan (the subject-matter of Chelsea Manning’s WikiLeaks 2010 disclosures that landed her in jail) and in view of the several ‘black sites’ in European countries where foreign suspects are routinely tortured, and subject to rape. Contra Pompeo, it is not the ‘international elites’ that are unaccountable but the national elites running the U.S. and Israeli governments.

 

The Pompeo dismissal of the ICC initiative was a prelude to the issuance by Trump on June 11th of an Executive Order that extended the prior denial of a U.S. visa to Bensouda, and threatened a variety of sanctioning moves directed at anyone connected with the ICC and its undertakings, including freezing assets and withholding visas, not only of ICC employees, but also of their families, on the laughable pretext that the prospective ICC investigation was creating for the United States a ‘national emergency’ in the form of an “unusual and extraordinary threat to the national security and foreign policy of the United States.” Long before the present crisis, Trump had told the UN in a 2018 speech at the General Assembly that “..the ICC has no jurisdiction, no legitimacy, and no authority..We will never surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy.”

 

As crude as are the words and deeds of the Trump crowd, there were almost equally defiant precursors, especially during the presidency of George W. Bush, an anti-ICC campaign led by none other than John Bolton who was to become Trump’s notorious National Security Advisor, and has suddenly become his antagonist-in-chief as a result of his book depicting Trump’s array of impeachable offenses. Remember that it was Bush who ‘un-signed’ the Rome Statute that Bill Clinton had signed on behalf of the U.S. on the last day of his presidency, but even he did so with the proviso that the treaty should not be submitted to the Senate for ratification and hence not be applicable, until the ICC had proved itself a responsible actor in Washington’s judgmental and biased eyes. Congress and the State Department stepped in to make sure that American military personnel would not be charged with international crimes both by threatening preventive action and entering into over 100 agreements with other countries to ensure immunity of American soldiers and officials from ICC jurisdiction, coupled with a threat to withhold aid if a government refused to agree to such a law-defying arrangement. Hillary Clinton also put her oar in the bloody water some years ago, insisting that since the U.S. was more of a global presence than other countries, it was important to be sure that its military personnel would never be brought before the ICC, no matter what their alleged offenses. The global military reach of the U.S. by way of hundreds of overseas bases, special forces covert operations, and naval patrols around the globe should enjoy immunity on a individual level, as impunity on a collective level of state responsibility. The impulse is understandable given the degree to which U.S. global security activities are so often conducted in ways that violate the most basic prohibitions of international criminal law.

 

In other words, non-accountability and double standards have deeper political roots in the bipartisan soil of American security politics than the extreme anti-internationalism of Trump. These tactics of self-exemption from legal accountability can be usefully traced back at least as far as the ‘victors’ justice’ approach to war crimes during the second world war where only the crimes of the defeated countries were subjected to accountability at Nuremberg and Tokyo, a step hailed in the West as a great advance despite its flaws. It was deeply flawed considering that arguably the most horrifying and least forgivable act during the four years of hostilities were the atomic bombs dropped on Japanese cities. Is there any serious doubt that if Germany or Japan had struck cities of the Allies with the bomb, and yet lost the war, those responsible for the decisions would have been held accountable, and harshly punished?

 

In some ways as bad from a law angle was the U.S. orchestrated trial of Saddam Hussein and his closest advisors for their state crimes, although the 2003 Iraq War arose from acts of aggression by the United States and UK, and subsequent crimes during the prolonged occupation of Iraq. In other words, the idea of unconditional impunity for the crimes of the United States is complemented by self-righteous accountability for those leaders of countries defeated in war by the United States. Such ‘exceptionalism’ affront the conscience of anyone who shares the view that ideas of fairness and equality should be affirmed as core values in the application of international criminal law.   

 

As might be expected, mainstream NGOs and liberal Democrats are not happy with such an insulting and gratuitous slap in the face of international institutions that have previously proved mainly useful in going after the wrongdoing of non-Western leaders, especially in Africa. It should be remembered that African countries and their leaders were the almost exclusive targets of ICC initiatives during its first ten years, and it was from Africa that one formerly heard complaints and threats of withdrawal from the treaty, but I doubt that ideas of sanctioning the ICC ever entered the imaginary of the understandable African displeasure at an implicit ethos of ‘white crimes don’t matter’!

 

David Sheffer, the American diplomat who headed the U.S. delegation that negotiated the Rome Statute on behalf of the Clinton presidency, but who was careful to preserve American geopolitical interests in the process, expressed the liberal opposition to Trump’s arrogant style of pushback with these words: “The [Trump] Executive Order will go down in history as a shameful act of fear and retreat from the rule of law.” There is an element of hypocrisy present in such a denunciation due to withholding the pre-Trump record of one-sided imposition of international criminal law.  True enough, it was the prior Republican president that had locked horns with the ICC some years ago, but the ambivalence of Congress and the Clintons is part of a consistent American insistence of what I would label as ‘negative exceptionalism,’ that is, the right to act internationally without accountability while taking a hard line on holding others accountable; impunity for the powerful, accountability for the weak. It used to be that American exceptionalism was associated with a commitment to decency, human rights, the rule of law, and a visionary approach to world order that was missing elsewhere, and could serve as a catalyst for peace and justice in the world. Such self-glorification, which was never deserved or appropriate, has long since been forfeited at the altar of global geopolitics, whose players make up the rules as they go along, while showing contempt for the legal constraints that are deemed suitable for the regulation of their adversaries.

 

Finally, it should be appreciated that while geopolitical actors can get away with murder, their rogue behavior is a precedent for all states, and weakens and undermines what fragile procedures exist to uphold the most basic norms of international law.

 

 

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Gangster Geopolitics in the Global Jungle: Annexation Tops Israel’s Macabre Dance Card

16 May

[Prefatory Note: Republication of opinion piece published in Al Jazeera English on May 13, 2020. Link is https://www.aljazeera.com/indepth/opinion/gangster-geopolitics-israel-annexation-plans-200511154825347.html. The published AJE text has been slightly modified.]

 

 

Gangster Geopolitics in the Global Jungle: Annexation Tops Israel’s Macabre Dance Card

 

 

Annexation Foreplay

 

These are the strangest of times. On this almost everyone will agree.

Lives all over the planet are being torn apart either by COVIS-19 or as a result of its devastating social and economic dislocations. In such a moment, it is hardly surprising that the best and worst of humanity is being showcased.

 

Yet what seems worse beyond even these forebodings is the persistence of gangster geopolitics in its various manifestations.

Intensifying U.S. sanctions in the midst of the health crisis on already

deeply afflicted societies and suffering populations such as Iran and Venezuela is one striking example. This display of the primacy of geopolitics is highlighted by its rejections of numerous high profile

humanitarian appeals for the suspension of sanctions, at least for the duration of the pandemic. Instead of suspension and empathy, we find tone deaf Washington almost gleefully upping its ‘maximum pressure’ policy, perversely grabbing the opportunity to rachet up the pain level.

 

Another dark tale is the macabre Israeli dance around the disruptive lawlessness of the annexation pledge that Netanyahu has promised to implement as early as July, having the assent of his power-sharing rival, Benny Gantz, to proceed without the need to gain the assent of his coalition co-leader. It is not even controversial to insist that any annexation of occupied Palestinian territory directly violates fundamental norms of international law. Maybe because of this, Israel is poised to annex without even attempting to offer legal justifications for overriding the widely endorsed and rigidly interpreted rule that a sovereign state is not allowed to annex foreign territory acquired by force.

 

This instance of annexation additionally involves an extreme repudiation of international humanitarian law as embodied in the Fourth Geneva Convention. It amounts to a unilateral move by Israel to change the status of land in the West Bank from that of occupier, since 1967) to that of its sovereign territorial authority. It also disregards the legal pledge in Oslo II (1995) to transfer to Palestine by stages jurisdiction over Area C in the post-Oslo administrative mapping of the West Bank. And further, such contemplated annexation directly challenges the authority of the UN, which by an overwhelming continuous consensus regards Israel’s presence in the West Bank, East Jerusalem, and Gaza as solely based on force and occupation, making any modification dependent on a prior authoritative expression of Palestinian consent, which is even hard to imagine ever being given. Not only is annexation unlawful, but has the potential to be regionally disruptive, agitating neighbors, especially Jordan, possibly Egypt, and directly challenges the continuing European zombie attachment to a two-state solution.

 

What has generally been overlooked in the extensive commentary on the annexation prospect is that it not only ignores the Palestinian self-determination, it also ‘forgets’ that the UN has unfulfilled promise and responsibility to find a just solution for Palestine that it inherited from the United Kingdom that had been administering the territory between the two world wars. What had been even in the days of the League ‘a sacred trust’ becomes in the era of post-colonial gangster geopolitics ‘wanton disregard.’

 

 

Israelis Insist Annexation is About ‘Security’

 

For all these reasons it is not surprising that even Israeli heavyweights, including former heads of Mossad and Shin Bet, as well as retired IDF security officers are sounding an alarm. Some militant Zionists oppose annexation at this point because it will expose the delusion that Israel is a democracy as well as a State of the Jewish people as worries mount that absorbing Palestinians in the West Bank will in due course threaten Jewish ethnic hegemony. Of course, none of this Israeli/Zionist ‘second thoughts debate’ objects to annexation because it violates international law, sidesteps and undermines UN or EU authority, and ignores Palestinian inalienable rights. All the objections to annexation from within Israel or among Zionist militants are couched by exclusive reference to a variety of concerns about alleged negative impacts on Israeli security. In particular, these critics from within Israel’s national security establishment are worried about disturbing Arab neighbors and further alienating world public opinion, especially in Europe, and to some extent worry about the reactions of ‘liberal Zionists,’ and thus weakening solidarity bonds of overseas Jews with Israel in the U.S. and Europe.

 

The pro-annexation side of the Israeli policy debate also mentions security considerations, especially with respect to the Jordan Valley and the settlements, but much less so. Unlike the critics, the more ardent proponents of annexation are land claimants. They invoke a Jewish biblical entitlement to Judea and Samaria (known internationally as the ‘West Bank’). This entitlement is reinforced by referencing Jewish deep cultural traditions and centuries of historical connections between a small Jewish presence as being continuous and this land being treated as a self-created sacred guardianship. As with Israeli critics of annexation, supporters feel no need to explain, or even notice, the disregard of Palestinian grievances and rights. Annexationist don’t dare put forward an argument that the Jewish claims are more deserving of recognition than are the competing national claims of Palestinians, undoubtedly because their case is so weak in terms of uncontested modern ideas of law, as well as the ethics of territorial entitlement.

 

As has been case throughout the Zionist narrative, Palestinian grievances, aspirations, and even the existence of a Palestinian people is not part of the Zionist imaginary except as political obstacles and demographic impediments. At the same time, all long Zionism has been tactically opportunistic about disclosing the full extent of its project, instead acting in public as if what it could gain under a given set of circumstances was all that it wanted and expected at some future point to acquire. When one considers the evolution of the main drift of Zionism since its inception, the longer-term aspiration of marginalizing Palestinians in a single dominant Jewish state that encompassed the whole of Israel’s ‘promised land’ has never been forsaken. In this sense the UN partition plan while accepted as a solution at the time by the Zionist leadership, is better interpreted as a stepping stone to recovering as much of the promised land as possible. In the course of the last hundred years, from a Zionist perspective utopia became reality, while for the Palestinians reality became dystopia.

 

 

The Macabre Dance

 

How the prelude to annexation is being addressed by Israel and the United States is as dismaying as is the underlying erasure of the Palestinians, except possibly as a restive population to be kept fragmented and as disunited as possible so that their resistance and

objections can be efficiently muted. Israel has already privileged annexation in the Gantz/Netanyahu unity government, making a proposal for annexation to be submitted to the Knesset any time after July 1st. The only precondition accepted by agreement establishing the Netanyahu/Gantz unity government was conforming the contours of the annexation to the territorial allocations embodied in the notoriously one-sided Trump/Kushner ‘From Peace to Prosperity’ proposal, which seems reasonable to treat as tantamount to an outright stamp of approval by the U.S. Government. Even without the disclosure of the Trump peace plan, U.S. approval was hardly ever in doubt. It follows from Trump’s endorsement of Israel’s annexation of the Golan Heights in occupied Syrian territory a few months ago.

 

As could be expected, Trump’s America is creating no friction, not even whispering to Netanyahu at least to offer legal justifications or explain away the negative effects of annexation on Palestinian peace prospects. Instead, the American Secretary of State, Mike Pompeo, has given a green light to West Bank annexation even before Israel formalized its claim, declaring provocatively that annexation is a matter for the Israelis to determine on their own (as if neither Palestinians nor international law had any relevance). He added that the U.S. will convey its opinions privately to the government of Israel.

 

Perhaps, this is a wily move by Washington. In effect, leaving it to Israel to handle any regional or UN blowback resulting from carrying out this controversial annexation. If an international pushback of any consequence occurs, the Israeli government would have to take responsibility for handling the outcry. In this sense, perhaps the Trump administration is learning the game, by this time seeking to avoid, or at least deflect, the angry reactions directed at the U.S. in the UN and elsewhere after announcing in December 2017 its intention to move the American embassy from Tel Aviv to Jerusalem.

 

 

Gangster Geopoliticss

 

In the undisclosed background, the calloussness of the annexation initiative seems designed to neuter the UN and blunt international criticism of Israel. It is expected that annexation will be greeted by strong rhetoric of denunciation from several European leaders and possibly candidate Biden, but unaccompanied by any serious push for an international campaign to reverse this taking of Palestinian land. On the basis of past experience, it seems likely that after a few days of media coverage concerns will subside, and the world will move on. Even the Palestinians discouraged by years of fruitless waiting, seem to be suffering, at least temporarily, from a combination of resistance fatigue and ineffectual solidarity initiatives. Such an assessment, is best understood as one more sign that Israel/U.S. relations are being managed in accord with ‘gangster geopolitics,’ and without paying heed to international law or UN authority. Such a pejorative label intends to condemn any annexation such as this one that sweeps law and morality aside while political space is forcibly cleared for land theft.

 

While gangster geopolitics may be extinguishing the last remnant of Palestinian hopes for political compromise and a diplomacy based on a genuine commitment to equity and equality, there are voices of resistance struggling to be heard. I highlight my dissent to annexation by describing this critical response as ‘gangsta geopolitics’ borrowing from pop culture’s ‘gangsta rap’ that fights back from the streets of the world on behalf of the people suffering from racist

police tactics. Of course, this is a metaphor, yet it illuminates an incredible pattern of official behavior that is hard to believe is acknowledged in Israeli public discourse.

 

First, there is the defiant nature of the Israeli annexation claim. Secondly, there is the single qualification that Israel must obtain

a geopolitical stamp of approval from the U.S. Government before going forward with annexation. Thirdly, that the U.S. Government seems to throw the ball back to Israel by saying the decision to annex is Israel’s to make, yet it will give Israel’s the benefit of its private opinion on the matter, presumably on the tactics of timing and presentation, without any consideration of matters of principle.

 

There is a ghostly melody accompanying this macabre dance. Israel tames its unilateralism by a gesture of geopolitical deference, and by this posturing, acts as if the approval of the United States matters as

something more than a political show of support. The U.S. doesn’t question the Israeli logic, yet it doesn’t want to accept responsibility

for a public show of approval, leaving Israel free to act as it wishes although withholding, at least for now, any expression of approval or disapproval with respect to annexation.

 

This leaves unattended the awkward gap between the

Israeli unity government agreement with its requirement to obtain U.S. approval and Pompeo’s demurrer. Whether this will cause any problems as the July date approaches is unlikely, especially as Israel will present annexation as a partial implementation of the Trump proposals. I suspect that the U.S. private message will be one of discreet approval, which Netanyahu will undoubtedly treat as satisfying the agreement with Gantz.

 

What stands out here is the arrogance of the politics of annexation. Not only are the rules and procedures of the world public order cast aside, but the internal discourse on the transfer of rights is carried on as if the people most affected are irrelevant, a kind of ‘internal Orientalism.’ Let’s hope that we who resort to gangsta rap to put these developments in the perspective they deserve, can do more at the time when the annexation move is formalized than gnash our teeth in frustration while observing this lamentable spectacle unfold.

 

 

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 U.S. Policy Toward Israel/Palestine in a Deglobalizing World: A Pre-Pandemic Perspective

7 May

[Prefatory Note: The text below is drawn from my presentation at the TRT World Forum, 21-22 October 2019. The conference theme was ‘Globalisation in Retreat: Risks and Opportunities.’ What strikes me now is how different the world seems only six months later due to the surreal impacts of the Coronavirus Pandemic on all aspects of perception and assessment, the totality of dislocating developments, and the heightening of an existential appreciation of the precariousness of individual and collective experience and of the radical uncertainty cloudinour expectations of the future. Surely my paper would read radically differently if rewritten in ways that took fuller account of intervening developments (the Trump/Kushner Plan) as well as the pandemic]

 

 U.S. Policy Toward Israel/Palestine in a Deglobalizing World

 

Points of Departure

 This paper considers some impacts of the retreat from globalization on the evolution of Israel/Palestine relations, giving special attention to the regressive character U.S. policy toward the unresolved conflict. This retreat is a complex ongoing phenomenon, generating both risks and opportunities, which are changing through time, and the present character of these threats and opportunities will be explored here. A central feature of world order in the course of this retreat from globalization is the rise of ultra-nationalist political leadership in many important countries that has resulted in a generalized withdrawal of support from cooperative responses to global problem-solving, relying instead on transactional bargains between governments as shaped by geopolitical disparities rather than by deference to considerations of international law, diplomatic compromise, and global justice.

 

Despite these recent negative developments, the politics, culture, and economics of globalization should not be romanticized (Falk, 1999), or more specifically not viewed as achieving positive results in relation to the century of struggle by the Palestinian people to address their legitimate grievances. Above all, the Palestinians have endured the denial of their inalienable right of national self-determination and been victimized by the imposition  of apartheid structures of control on the Palestinian people as a whole, that is, whether living under occupation or otherwise. (Falk & Tilley, 2017). The Palestinian people have been victimized by the primacy of geopolitics for more than a century, ever since the issuance of the Balfour Declaration in 1917, which has illustrated the limits of normative (legal and moral) globalization. The retreat from globalization seems to have accentuated the disregard of international law and the authority of the United Nations, highlighted in relation to Israel/Palestine by the release of the Trump/Kushner plan with the absurd claim to offer ‘the deal of the century.’(U.S. Government, 2020). Such a trend if allowed to continue does amount to a severe setback for Palestinian legitimate aspirations, but such a bleak prospect is being challenged by parallel developments.

 

Whether this retreat from globalization is cyclical, soon to be reversed, or a longer-term linear trend is difficult to discern at this time. Its trajectory is highly contingent on the impingement from unforeseeable political, economic, and ecological developments. It may depend on the outcome of such currently unpredictable developments as to whether the Democratic candidate selected to oppose Donald Trump will go on to win the November 2020 elections, and whether the COVID-19 virus can be contained without producing a global economic collapse. As well, it is important to interpret the depth and breadth of this retreat. It certainly reflects a populist reaction of angry frustration against various forms of inequality that led many people to feel disadvantaged by ‘neoliberal globalization,’ and a turn toward demagogic leaders who denounce such developments and point fingers at the imagined culprits, real and imagined. It has also given rise to an affirmation of nationalism as the most existentially relevant political and ideological alternative to globalism. This economistic mood of grassroots alienation also reflects hostile attitudes and disruptive adjustments that pertain to such historically conditioned challenges as global migration flows and trade tensions. Also relevant for achieving an understanding of these recent developments is whether the apparent re-bonding of peoples on the basis of nationalist, and even racist and civilizational conceptions of the outer limits of political community, is integral to the retreat or just a temporary shift in focus away from the global.

 

We need to keep in mind that despite these evident patterns of retreat, the world in many respects continues to be more interconnected and networked than at any time in human history, and these dynamics are continuing, perhaps even accelerating as technology advances, a largely unacknowledged new interconnections in this digitally driven form of ‘globalization-from-below.’ (Slaughter, 2004, 2019) As well, on ecological and health frontiers, climate change and the global spread of lethal disease, remind us that we cannot hope to address effectively the challenges of the contemporary world without strengthening mechanisms of global cooperation. The behavior of the United States Government in leading the retreat, withdrawing from the Paris Agreement on Climate Change and the Nuclear Program Agreement with Iran (JCPOA, 2015) help us to appreciate how dysfunctional from a world order standpoint is a generalized retreat from globalization, and more concretely, what the loss of U.S. leadership in many global policy domains has meant. Such an endorsement of globalization should not, for instance, be understood as the approval of neoliberal globalization as it unfolded after the end of the Cold War. Indeed, this largely under regulated market driven approach to economic globalization greatly contributed to various types of inequality and alienation that led many peoples throughout the world to be receptive to the appeals advanced in favor of ultra-nationalism. In other words, the ultra-nationalism of the present should not be separated from a variety of disappointments brought about by predatory capitalism (Falk, 1999).

 

U.S. Retreat and Israel/Palestine

The reality of retreat bears crucially on the particular conflict between Israel and Palestine as reflected in the shift of the U.S. approach from its earlier pre-Trump role as partisan intermediary to its hyperbolic identity during the Trump presidency as super-partisan deal maker. Such a shift is fully in keeping with the broader pattern of retreat from globalization, but it has some additional distinguishing features. Above all, the personality and style of Trump, as reinforced by the influence of extreme Zionists donors and Evangelical Christians who constitute powerful elements of his political base. Translated into foreign policy this has meant that undisguised pro-Israeli unilateralism has replaced the earlier American diplomatic public stance of peacemaker, which uneasily coincided with the undisguised ‘special relationship’ with Israel. This special relationship meant concretely unconditional support in all security domains, although tempered by occasional murmurs of disapproval as by calling Israel’s periodic moves to accelerate the expansion of its unlawful settlements as ‘unhelpful.’ By way of contrast, in relation to the settlement movement, which struck an Israeli dagger into the heart of the two-states approach, the presidency of George W. Bush and continued under Barack Obama, Trump’s Secretary of State, agreed to close his eyes on their unlawfulness, but only in the context of an agree peace arrangement. Mike Pompeo, abandons altogether the view that the establishment of settlements violates international law without the precondition of reaching an overall agreement(Pompeo, 2020). Beyond this, even before the release of the Trump/Kushner plan, U.S. foreign policy toward Israel after Trump assumed the presidency in early 2017 exhibited a blatant form of one-sided unilateralism with regard to previously unresolved issues: appointing as his principal advisors on Israel and Middle East policy only Zionist extremists (Kushner, Friedman, Greenblatt), moving the American embassy to Jerusalem, recognizing Israeli sovereignty over the Golan Heights that were widely assumed to be occupied Syrian territory, cutting U.S. funding for UN humanitarian relief efforts in Gaza, and openly embracing Netanyahu’s racist leadership of Israel while turning his back on his Palestinian counterparts and their concerns.

 

Such a pattern of unilateralism is illustrative of the retreat hypothesis because it so directly undercuts not only the earlier somewhat more internationalist American approach, but also so bluntly departs from the global consensus at the UN that favored a negotiated solution that upheld Israel as a legitimate state but based its vision of peace on an agreed establishment of an independent and sovereign Palestinian state that would then be accepted as a full member of the UN. A major component of this consensus was the view that diplomacy would be relied upon to resolve the future of Jerusalem, settlements, the treatment of Palestinian refugees, the fixing of borders, and the overall arrangement of security guarantees. On all counts, Israel has recently moved with the apparent approval of Washington to resolve these issues on its own by completing its expansionist agenda. This coordinated Israel/U.S. provocative postures was dramatized by the movement of the American Embassy to Jerusalem in early 2019, an initiative overwhelmingly condemned to no avail by the UN General Assembly (UNGA Res., 2019). The Jerusalem provocation, in particular, was a direct assault on the earlier global consensus and strong Islamic that had insisted that such issues, and especially the status of Jerusalem, be settled by compromises achieved in a negotiating process so as to give both sides the sense of win/win outcomes.

 

In important respects, what this Trump turn represented beyond its affinity with other expressions of anti-globalization, was an assessment that the Oslo diplomacy had been tried and failed, and that it was an opportune time to make a shift toward a more muscular, less consensual, geopolitics.

 

Daniel Pipes, long a Zionist proponent best articulated this approach on his website, Middle East Forum, months before its adoption is slightly less crude form by Trump/Kushner (Pipes, 2017). Pipes insisted that diplomacy had been tried in good faith as the means to resolve the Israel/Palestine conflict, but had failed, and it was time to try a different approach. In his view, conflicts of this sort that prove difficult to resolve by diplomacy are shown by history to be ended only through the victory of one side that then dictates the terms of peace, with the losing side being compelled to surrender its political objectives. Without a glimmer of surprise, it was Pipes’ view that objective analysis identified Israel as the winner, Palestine the loser.  Yet despite this, the conflict dragged on because the Palestinian leadership with its head in the clouds refused to accept this reality. The task of Israel, with U.S. backing, was to intensify coercion until Palestine sees the light and surrenders, and a new normal can be established. Trump/Kushner use a twisted language of ‘peace’ rather than the transparency ofa ‘victory’ to set forth their conception of the end-game in the long struggle. The substance of the plan legitimizes Israel’s territorial and security ambitions and offers the Palestinians what is called ‘a state,’ but is in fact ‘a statelet’ that is nothing more than ‘a Bantustan,’ a shorthand reference to South African way of setting up totally subordinates political entities subject to the rigors of its apartheid structures of control. To encourage the Palestinians to swallow the Kool Aid of the deal of the century, the Palestinians are threatened with unnamed dire consequences if they reject, and enticed with sugar-coated offers of economic development assistance if they accept.

 

It is too early to gauge whether Palestine’s immediate rejection of the Trump/Kushner/Netanyahu victory approach will prevail. This undoubtedly depends on whether such an outcome is endorsed by the Israeli and American election results in 2020, especially the latter. If Netanyahu and Trump both win, then the Palestinian Authority will likely  experience coercive pressures to give up their political ambitions, and opt for a more normalized economic and social life as the best result they can hope for. What is striking from the perspective of the globalization hypothesis is the willingness of the U.S. to depart so unconditionally from the global consensus to support Israel in a manner that seems not only anti-internationalist, but also in all likelihood works against its broader and longer term strategic national interests in the Middle East, which cannot count on the indefinite repression of fiercely pro-Palestinian sentiments among Arab populations. As such, this path to ‘peace’ compounds the retreat from globalization with a costly challenge to stability in the region. This imprudent posture is domestically driven by narrowly parochial interests as epitomized by AIPAC lobbying leverage and Zionist donor pressures on the American political process (Mearcheimer & Walt, 2003). Although these features of the American political scene antedated Trump, his presidency has accentuated their relevance.

 

With respect to the U.S. approach to Israel/Palestine it might not have assumed such an extreme form without the specificity of the Trump election. In other words, retreat from globalization would likely have been present whoever was the Republican nominee in 2016 and even likely, in the event that Hillary Clinton had been elected. Yet the anticipated retreat would have taken place in those circumstances of new American political leadership without breaking the continuity of approach to Israel and the conflict in the radical manner adopted by Trump. The American retreat might have emphasized anti-migrant, economic nationalism, and confrontation with Russia to a greater extent, and possibly less drastic withdrawals from globalist engagements in the security domain. That is even with American leaders other than Trump accepting the politics of retreat, it seems rather likely that policy toward Israel and Palestine would have displayed only minor changes from the Bush/Obama years, probably becoming even more reluctant to  criticize Israel on settlement expansion than was Obama’s willingness to break with his own practice by allowing the 2016 criticism of Israel by the Security Council to reach a decision, abstaining rather than as on prior occasions, using its veto to shield Israel from formal censure even if it stood alone in doing so. It is never possible to be very confident about ‘what if’ conjectures, but nevertheless it seems highly unlikely that had a different president been voted into office in 2016 the approach to Palestinian grievances would have abandoned diplomacy and opted so openly for coercion and unilateralism. (Falk, 2017)

  

What likely would have occurred with the Republican alternatives to Trump in 2016 but not so if Clinton had won is a retreat from what might be called ‘normative globalization,’ which is the most obvious common anti-globalization stance being taken across the globe. What this normative dimension of retreat entails is a general lessening of confidence in and respect for the UN and international law, and a declining reliance on global approaches to problem-solving, whether the subject-matter is trade relations, human rights, migrant flow, or climate change.

 

In such a transactional atmosphere, problem-solving with respect to international conflict resolution relies heavily on coercive diplomacy among states and the geopolitical priorities of dominant states. The effect could be to sharpen geopolitical tensions between the U.S. and China, U.S. and Russia, and possibly give rise to a new Cold War, with regional military confrontations and dangerous escalation dangers. In this set of circumstances, the emergence of autocratic and ultra-nationalist leadership would lead to more pragmatic relationships reflecting geopolitical priorities rather than normative affinities based on shared values and world order commitments.

 

Risks Associated with Trump’s Version of Retreat from Globalization

Superficially, and in the short run, Israel has been a beneficiary of this U.S. shift in diplomatic posture, but there are secondary effects and contingencies that may yet turn out to be favorable to the Palestinian struggle. More concretely, this means that the United States no longer seeks to act in general accord with the international consensus that has been shaped over the decades at the UN and elsewhere, which although reflecting a pro-Israel bias, endorsed the view that this conflict could only be resolved by some sort of negotiated accommodation between Israelis and Palestinians that set the terms and established a process for achieving a sustainable peace.

 

Of course, this shift in U.S. policy reflected several converging factors that resulted in the Trump presidency of which a retreat from the UN consensus and rule-governed global diplomacy was only one element. Other factors included the influence exerted by Zionist donors in American domestic politics and by Trump family members, the softening of the attitudes of Arab governments toward Israel, the reduced Western dependence on Middle Eastern oil, and the heightening of tensions with Iran. Yet the retreat from globalization is of the greatest importance as explaining the disregard of the international consensus exhibited at the UN that had somewhat constrained earlier U.S. policy, yet these limits should not be overstated as they did not prevent the continuous erosion of Palestinian rights and expectations as measured by the rules and principles of international law. That is, despite U.S. global leadership, and endorsement of globalization, in relation to Israel/Palestine an incremental coercive diplomacy that favored Israel was what led to a steady deterioration of the Palestinian position. In this respect the super-partisanship of the Trump presidency removed the pretenses and inconsistencies of normative globalization that had not materially helped the Palestinian side, while covering up the one-sided support of Israel’s political zero-sum agenda. Does this greater clarity give Palestinians new opportunities as well as pose more severe challenges?

 

The United States has for more than 25 years claimed the role of indispensable intermediary in working toward a negotiated peace arrangement between Israel and Palestine. Such a role reflected its global leadership status that was without challenge after the Cold War ended in the early 1990s, as well as Israel’s insistence that if negotiations were ever to occur, they had to be conducted within a framework presided over by the United States. The U.S. status as global leader also corresponded with a renewed emphasis on the Middle East (and East Asia) given the altered historical circumstance. This meant replacing Europe as the strategic site of geopolitical struggle in a globalizing world. The importance of the Middle East for the United States reflected four interrelated concerns: access to the regional oil reserves at affordable prices; ensuring Israeli security; containing the spread of political Islam in the aftermath of the Iranian Revolution (1979); avoiding any further proliferation of nuclear weapons in the region.

 

Given these realities there existed a strong diplomatic incentive on the part of the United States to find a solution to the Palestinian struggle that would alleviate pro-Palestinian pressures without appearing to weaken the ideological and strategic special relationship between the United States and Israel. After years of frustration on the diplomatic terrain, the Oslo Framework of Principles, agreed upon in 1993, seemed to provide a credible path to compromise and peace, consisting of the regional normalization of Israel as a legitimate state within agreed borders and the establishment of a Palestinian state based on 1967 borders, with Jerusalem as the joint capital of the two states, the satisfaction of Israeli security concerns, some kind of compensation as a substitute for the repatriation of Palestinian refugees, and the legalization of most of Israel unlawful encroachments (separation wall, settlements, road network, security zones) on formerly occupied Palestine. This peace dynamic, although sharply favorable to Israel, was viewed as the most realistic political compromise that could be achieved. Its adoption by the most affected parties also silenced  most opposition in international arenas. This new dynamic was celebrated as a major breakthrough, launched with theatrical fanfare by the dramatic handshake on the White House lawn. The famous 1993 picture of the Israeli leader, Yitzhak Rabin, shaking hands with the PLO leader, Yasir Arafat, and a smiling U.S. President, Bill Clinton standing in between, was the iconic climax of choosing this delusionary path to peace. These delusions were challenged two years later by the assassination of Rabin, and even more by the rightward drift of Israeli politics and the growing influence of the settler movement, but the diplomacy dragged on and on, and even the Palestinians seemed lulled to inaction as the diplomacy continued wending its way through a labyrinth without an exit.  

 

What is most relevant to the focus adopted here is that this diplomatic approach under U.S. auspices was superficially respectful toward the international consensus on how to address the conflict—that is, by diplomacy that was framed as negotiations between the parties, and was understood to seek compromises on the main issues in contention (territory, settlements, refugees, Jerusalem, security).  This outlook, supported by bipartisanship in the United States, meaning overwhelming Congressional support and a continuity of approach whether the president was a Democrat or Republican. This Oslo peace process seemed consistent with American foreign policy of ‘liberal internationalism’ that persisted throughout the Cold War, and endured until 9/11 occurred, and being finally discarded by Trump. The Trump orientation may be described as militarist geopolitics and ultra-nationalist illiberalism. As applied to Israel/Palestine this means the Pipes victory scenario presented as diktat with scant interest in enticing Palestinian acceptance. As such, with irony, this most pro-Israeli of all American presidents has ironically fractured Jewish support for Israel, alienating not only progressive Jews but also many liberal Zionists who believed in a negotiated two-state peace agreement (Bishara, 2020).

 

However, to gain a proper attitude toward the Trump stance, it is necessary to avoid an unjustified embrace of this prior American peace diplomacy. it is crucial to identify the weaknesses of an approach that claimed fairness to the Palestinians while strongly slanting the process and its intended outcome toward Israel. As with Pipes, yet skillfully disguised as a compromise, Oslo diplomacy when deconstructed reveals a weaker version of an Israeli victory scenario (Baake & Omer, 20–). By failing to mention a Palestinian right of self-determination or affirm the equality of the two sides, the Oslo framework of principles set in motion a one-sided diplomacy that gave weight to power disparities, a bias further reinforced by having an overtly partisan intermediary. This imbalance was further accentuated by the insistence that Palestinian negotiators swallow all objections to Israeli violations of international law until the so-called ‘final status’ negotiations at the last stage of the process. Palestinians were told that objecting in the present context would jeopardize the negotiations. Israel never ceased building and expanding its network of unlawful settlements and further encroaching on the Palestinian territorial remnant by securitizing the settlements, including connections to Israel, which truly undercut the credibility of negotiations. Beyond this, what were called ‘negotiations’ were basically occasions for Israel to put forward self-serving proposals for conflict resolution on a take it or leave it basis, realizing Israeli goals and neglecting Palestinian priorities, and undoubtedly expecting the Palestinian side to reject. In this period, the two sides also sought agreement in direct secret negotiations that were similarly, yet more explicitly, weighted in Israel’s favor, and indicated that despite the willingness of the PLO to give Israel most of what it wanted by way of keeping its settlements and meeting its security concerns the their Israeli counterparts showed little interest (Palestine Papers, 2—). Even if the two sides somehow had signed such a one-sided peace agreement it might not have produced anything more substantial than a pause in the struggle, in effect, one more periodic ceasefire, and quite likely rejected by both the Israeli and Palestinian publics. Succeeding generations of Palestinians would not be likely to accept the validity such permanent subjugation in what purports to be a post-colonial world order. The wild fires of the ethics of nationalism and the politics of self-determination would almost certainly have doomed an arrangement that left Palestinians languishing in an entity called a state, but lacking in the most elemental aspect of sovereignty, control over its own security.   

 

Even on the Israeli side, the Oslo slant may not have satisfied the implicit Zionist agenda of recovering the whole of the promised land, the biblical entitlement on which Israel’s claims rest, but was temporarily and tactically acceptable as it improved overall prospects to reach such a goal. This helps explain Israeli contentment despite a diplomatic process that seemed a bridge to nowhere, and never acknowledged Jewish biblical entitlement. For Israel the Oslo process was a bridge to somewhere, allowing the country to accumulate many facts on the ground, while further structuring the kind of apartheid state needed to check Palestinian resistance, thereby ensuring the stability of an ethnically based hegemonic social, economic, and political order. For Palestine, Oslo diplomacy proved to be a political disaster despite its initial gift wrapping, as the noose of victimization tightened to the point that Palestinians became virtual strangers, or even captives, in their own homeland, slowly recognizing that when the wrappings were removed the package within was an empty box. Such a dual process of Israel’s gain and Palestine’s loss occurred while the globalization fever remained high, and this one-sided dynamic achieved its momentum years before deglobalization trends became evident.

 

When Trump arrived on the political scene in 2017, the de facto reality of an Israeli one-state solution coexisted with defunct governmental and UN continued adherence to a de jure vision of a two-state outcome. What Trump sought by dropping the pretense of negotiating the future for Israel and Palestine was a changed formula for ending the struggle over the sequel to the British Mandate. Even Trump did not overtly affirm the major Zionist premise of biblical entitlement, using the accepted international terminology of ‘the West Bank’ rather than the promised land language of ‘Judea and Samaria.’ The Trump/Kushner approach legitimized facts on the ground as of 2020, suspending all scrutiny of the lawlessness by which the facts were accumulated. Kushner expressed this outlook clearly in an interview the day after the White House finally released its peace plan: “I’m not looking at the world as it existed in 1967. I’m looking at the world as it exists in 2020.” As well, Trump/Kushner’s deal avoided an explicit endorsement of the analysis of Pipes based on using force to induce the Palestinian leadership to surrender its political goals and accept Israel’s victory in the long struggle between these two peoples to control the identity of the homeland in what had been a Palestinian entity during the Ottoman Empire and the British Mandate.

 

The other distinctive feature of the Trump approach was the explicit disregard of Palestinian rights under international law. The American Secretary of State in language rather parallel to the sentiments expressed by Kushner articulated the view that it was time to abandon the earlier U.S. official stance of regarding Israeli settlements on occupied Palestinian territory as unlawful. In Mike Pompeo’s words of explanation, “..arguments about who is right and wrong in international law will not bring peace.” On behalf of the PLO, Hanan Ashrawi articulated anger and frustration in a tone of understandable exasperation: “We cannot express horror and shock because this is a pattern, but that doesn’t make it any less horrific..total disregard of international law, what is right and just, and for peace.” Although Ashrawi’s words resonate with attitudes toward international law pre-Trump and pre-retreat, the discontinuity is not as great as liberal internationalists contend (ICJ, 2004). All through the post-1967 period of occupation, while the settlement process and related encroachments on Palestinian rights and aspirations occurred, the Palestinians were counseled to withhold their international law objections so that the peace process might go forward, and the Israelis were lightly scolded as their expansionist dreams became building projects. In this spirit violating international law was ‘unhelpful,’ but if sustained, could gain legal acceptance as they did in 2004 when the Bush/Sharon exchange of letters (Bush/Sharon, 2004) declared that the settlement blocs would become part of Israel’s sovereign territory in any future peace arrangement.

 

Rhetoric matters, and this overt show of disregard for international law is an integral aspect of this broader retreat from globalization.  Respect for and confidence in international law and procedures is a vital precondition for encouraging globally cooperative approaches to problems that affect the world as a whole. The proudest achievements of liberal internationalism along these lines were based on lawmaking treaties governing such disparate matters as the public order of the oceans, the development of Antarctica, and some aspects of military competition in the nuclear age. With the rise of ultra-nationalism and the decline of global leadership by the United States, world order is again reliant on the pre-1945 state-centric style of geopolitical rivalry, but facing the severe diverse challenges of global scope that threaten the world with catastrophe in the 2020s and beyond.

 

The main risks attributable to this interplay between the retreat from globalization and the super-partisanship of American policy toward Israel/Palestine can be summarized as follows:

–stabilizing Israel’s apartheid state, while denying the Palestinian people basic human rights, particularly, the right of self-determination;

–weakening respect for international law, the UN, and the authority of diplomatic resolution of international disputes;

–expressing the transition in the American global and regional leadership roles from a liberal internationalist perspective to that of rogue superpower;

–lending support to an outcome of the long struggle based on power rather than law or ethic, thereby establishing a very unfortunate precedent for conflict resolution in the 21st century.

 

 

Opportunities Resulting from the New Realities of Retreat and U.S. Hyper-Partisanship

At first glance, the situation following the release of the Trump/Kushner seems totally discouraging. It affirms the form and substance of Israel’s right-wing leadership, whether Likud or Blue/White, and reflects the dominant Zionist agenda reflecting ‘biblical entitlement’ to the whole of the promised land, either by direct or indirect sovereign control. As such it rejects a political compromise. It seems to confront Palestinians with the unhappy alternatives of political surrender or forcible resistance. Paths promising a political compromise, sovereign equality, and resting on international diplomacy seem indefinitely closed. Beyond this, the important Arab governments are silently siding with Israel, and Palestinians are without any realistic prospect of unified leadership. Given the recognition of this situation, it is difficult not to succumb to despair.

 

And yet, the Palestinians show no sign of regarding their struggle as ‘a lost cause.’ Resistance activity remains robust, and no element of the Palestinian leadership seems ready to sign on to the U.S. proposals, despite the temptations afforded by the offers of economic relief, which must be difficult to dismiss given the desperate plight of the 2 million Palestinians living in Gaza and the diminishing sense of national territory in the West Bank, given Israeli accelerating encroachments and Washington bright green light given expansionist ambitions and cruel, coercive tactics.

 

Such an unfavorable context is reinforced by the retreat from globalization. This retreat as complemented by ultra-nationalism has resulted in reduced respect for the authority of the UN, as well as weakened pressures for a genuine two-state compromise at the UN, which is itself supplemented by less willingness to challenge Israeli defiance of international humanitarian law. The utter disregard of Israeli continual reliance on excessive violence at the Gaza border is emblematic of both disregard by the media, UN, and EU for Palestinian rights and Israeli lawlessness.

 

Yet these developments, as paradoxical as it may sound, also have the potential to improve Palestinian prospects. There are two broad explanations. First, the earlier posture in international society had not been helpful to the Palestinian struggle for basic rights. As earlier suggested, Israel acted to undermine the core element in what was regarded as the international consensus, namely, the establishment of a viable sovereign Palestinian state with East Jerusalem as its capital. By allowing the settlement movement to go forward with subsidized government assistance and encouragement the Israeli government signaled its intention to never let go of control over ‘the promised land.’ Even if forced by geopolitical pressures to accept some kind of demilitarized Palestinian state, the obstacles involved in reversing the settlement dynamic in the West Bank and Jerusalem became more formidable with each passing month. Almost as tellingly, the internal Israeli reference points of ‘Judea and Samaria’ of the West Bank along with the unification and formal annexation of Jerusalem as the eternal capital of the Jewish people underscored the Zionist sense of biblical entitlement as the non-negotiable foundation of its claim rather than the mixture of legal, moral, and political considerations that formed the vision of both the consensus at the UN and the outlook project by ‘liberal Zionists’ in the Jewish diaspora (Khalidi, Brokers, 200-).

 

Secondly, the combinaton of releasing the Trump/Kushner plan and its embrace not only by Netanyahu, and the Likud Party, but by Gantz and Blue and White, clarifies two aspect of the overall situation that had been previously somewhat obscure: (1) present prospects of any form of political compromise to resolve the conflict by diplomacy between the parties are dead for the foreseeable future; (2) advancing the Palestinian struggle at this stage depends on sustaining the legitimacy war that uses all means available to react against Israeli lawlessness and immorality, including international judicial tribunals and the UN Human Rights Council and General Assembly (Falk, 2017), continuing various forms of Palestinian resistance to demonstrate that the struggle lives on within Palestinian society, and building momentum in global civil society by soft power means, currently most effectively expressed by the BDS Campaign.

 

In effect, the Palestinian struggle has shifted its center of gravity from its intergovernmental axes to that of the resistance and solidarity. In other words, the role of governments and international institutions, once dominant, is now discredited and subordinated. At some later stage of the conflict, if a balance more favorable to the protection of Palestinian rights is achieved or there is some kind of change of outlook in the United States and/or Israel, then there might again emerge a greater willingness to allow a diplomatic framework to help fashion a mutually acceptable political compromise, but with a major difference. The new diplomacy to have any chance of success in producing a sustainable peace arrangement, must proceed on the basis of the formal and existential equality of the parties, either relying on direct inter-governmental negotiations or by selecting a credibly neutral mediating framework.

 

This alternative more positive framework for conflict resolution not only depends on delegitimation, resistance, and solidarity, it also depends critically on a prior Israeli decision to dismantle the apartheid features of its state structures that now subordinate and victimize the Palestine people as a whole (including refugees, exiles, minority in pre-1967 Israel) on the basis of racial criteria (Falk & Tilley, 2017). Considering the similarities and dissimilarities with the South African experience is also illuminating. The changed balance achieved with respect to South African apartheid was largely achieved by resistance and solidarity initiatives, although unlike the Israel/Palestine conflict, aided by a globalized anti-apartheid campaign. It was a soft power triumph in the end, although that the threat and reality of armed struggle was never eliminated. In the end, the white leadership made a calculated decision that their interest would be better served by accepting what a decade earlier seemed a utopian impossibility—that is, a transition to a multiracial constitutional democracy, which the demographics made clear, would means that the long victimized African majority would control the political destiny of the country. The bargain, a kind of ‘genuine deal of the century’ was a tribute to the skills of Nelson Mandela and the leadership of de Klierk, that made the white minority take their chances based on guarantees of their economic and social rights. Mandela has been criticized for allowing the white to retain their privileged economic position and social status, but without such flexibility, any transition to post-apartheid South Africa would have been violent and bloody.

 

Although Israeli Zionists have genuine demographic concerns given the relative size and fertility rates of the two peoples, their prospects in a secular constitutional democracy for a large share of control over the institutions of governance would remain much more favorable to Jews, provided Jews would not abandon such a post-apartheid state and Palestinians would uphold the rights of the Jews if they were to gain control over the governing process. Undoubtedly, the situation would reflect the context, including geopolitical factors and the motivations, wisdom, and skills of the leadership on both sides.

 

What seems clear, whether the retreat from globalization deepens or is reversed, is that the preconditions of ending Israeli apartheid and accepting commitments to the substance and spirit of equality on both sides is essential to overcoming the present approach premised on a victory scenario combined with the spirit and substance of inequality, which will add to Palestinian suffering without achieving Israeli peace and security. In these circumstances, unlikely to be altered in the near future, the present pattern of control and encroachment will continue.

 

A Concluding Comment

The preceding analysis leads to the conclusion that the retreat from globalization is one factor in altering the nature of the Palestinian struggle, but may not in the end affect the outcome. In the immediate setting, it seems like a major setback for the Palestinians as the Israelis have unambiguous geopolitical support for their most extravagant claims, and there is no meaning countervailing power at either the regional or global levels. Yet in the post-colonial period, a long subjugated people do not give up their dreams of political independence and their grievances of rights denied, especially in the Palestinian as long endorsed by the UN and international public opinion. One development favoring the Palestinians, and evidently worrying the Israelis, is the increasing acceptance of the view that Israel maintains an apartheid structure of control over the Palestinian people and that the Israel needs to be perceived as the last remaining significant settler colonial state. This chance of discourse has been countered by branding activists and critics as ‘anti-Semites’ although their opposition to Israel is nonviolent and unrelated to hostility to Jews as a people, but to the Israeli state as depriving the majority resident population of its rights of self-determination and its overall human rights.

 

Each struggle has its own features, and this is particularly true in the case of Israel/Palestine. A crucial such distinguishing feature is that Israel managed to impose its political will on Palestine with the help of British colonial support, yet able to come to independence as a powerful manifestation of anti-colonial struggle by coercing not only the Palestinians, but making life untenable for the British (Kaplan, 2019). Of course, the last stage of the struggle to establish Israel in the face of Palestinian and Arab opposition were a series of developments in Europe favorable to the Zionist project, especially the moral sympathy arising from Nazi genocidal behavior and the liberal guilt of Europe and North America arising from their failure to challenge German murderous racism. These factors led to the premature legitimation of Israel in 1948, reaching its climax by admission to the United Nations without first resolving Palestinian grievances in a satisfactory manner. Such an attempt might not have succeeded in any event as the Palestinian side refused the idea of partitioning its homeland, and the Zionist side, although outwardly ready to strike a pragmatic bargain never gave up its vision of restoring sovereignty over the biblical homeland of the Jewish people.

 

Finally, the retreat from globalization is too new and contingent, to serve as a basis for anticipating the future as it impacts on the Israel/Palestine struggle. As suggested, present realities suggest that the situation seems to favor Israeli ambitions, but some factors could strengthen the Palestinian position overnight, such as the rejection of Trump in the 2020 American elections, the true unification of Palestinian leadership, or the shift toward democratic populism in the Arab world as foreshadowed by the 2011 uprisings. In the event of a restored spirit of globalization an early undertaking might be renewed attention to Palestinian grievances, and a resolve to take action to complete the policy agenda of decolonization and racial equality that dominated the last decades of the prior century .   

 

 

References

 

Abunimah, A.(2014) The Battle for Justice in Palestine. Chicago,Il: Haymarket Books.

 

Bauck, P. & Omer, M. (eds) (2013)  The Oslo Accords: A Critical Assessment 1993-2013. Cairo, Egypt, American University in Cairo Press

 

Bishara, M. (2020) “U.S. and Israel Vote: Two ‘Racist’ Incumbents and Two Proud Jews,” https://www.aljazeera.com/indepth/opinion/israel-vote-racist-incumbents-proud-jews-200302062307608.html

 

 

“Exchange of Letters between PM Sharon and President Bush” (2004) <mfa.gov.il>

 

 

Falk, R.A. (1999) Predatory Globalization: A Critique. Cambridge, UK, Polity Press

 Falk, R. A. (2014) Humanitarian Intervention and Legitimacy Wars: Seeking Peace and Justice in the 21st Century. London, UK: Routledge

 

Falk. R.A. & Tilley, V.Q. 2017. “Israeli Practices and the Question of Apartheid.” Beiirut, Lebanon, Economic and Social Council for West Asia (ESCWA

 

Falk, R.A. (2017)  Palestine Horizon: Toward a Just Peace. London,UK: Pluto Press.

 

Falk, R. Blog on Security Council 2016 decision on settlements

 

“Legal Consequences of Constructing a Wall on Occupied Palestinian Territory,” International Court of Justice, Advisory Opinion, 8 July 2004

 

Kaplan, A. (2018) Our American Israel: The Story of an Entangled Alliance. Cambridge, MA: Harvard University Press. )

 

Kattan, V. (2003) From Coexistence to Conquest: The Origins of the Arab-Israeli Conflict, 1871-1949. London, UK: Pluto Press.

 

Khalidi, R. (2013) Brokers of Deceit: How the U.S. Undermined Peace in the Middle East. Boston, MA: Beacon Press

 

Mearsheimer, J & S. Walt (2002) The Israeli Lobby and U.S. Foreign Policy. New York: Farrar, Straus, and Giroux.

 

Olson, P. (2011) Fast Times in Palestine: A Love Affair with a Homeless Homeland. Seal Press.

 

Pipes, D. (2018) “Achieving Peace Through Israeli Victory.” <www.danielpipes.org>

 

Said, E. W. (2000) The End of the Peace Process: Oslo and After. New York: Pantheon.

 

Slaughter, A-M. (2004) The New World Order. Princeton, NJ: Princeton University Press.

 

Slaughter, A-M. (2017) The Chessboard and the Web: Strategies of Connection in a Networked World. New Haven, CT: Yale University Press.

 

Swisher, C.E. (2011) The Palestine Papers The End of the Road. Chatham, UK: Hesperus Press.

 

UN General Assembly, Res. ES-10/L.22.  (2017) On Moving American Embassy in Israel to Jerusalem.

 

(2016)“Israel Settlements Without Legal Validity,” UN Security Council Res. 2334,

 

(2020) “Peace to Prosperity: A Vision to Improve the Lives of the Palestinian and Israeli People.” Washington, D.C.: White House.

     

  

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Investigating Israeli Criminality at the International Criminal Court (ICC)

31 Mar

Investigating Israeli Criminality at the International Criminal Court (ICC)

 

[Prefatory Note: What is posted below is an Amicus Brief submitted to the International Criminal Court in The Hague on 16 March 2020 in the jurisdictional phase of a proceeding in which to initiate such a legal proceeding and whether the ICC has jurisdiction, that is, legal authority to investigate and possibly prosecute such alleged. As the Prosecutor indicated, the facts at her disposal indicate a basis for accepting Palestine’s request forPearce  an investigation of alleged Israeli criminal conduct on three clusters of issues: (1) military operations in Gaza in 2014, (2) unlawful aspects of Israeli settlements, aand (3) use of excessive force against protesters at the Gaza border in The Great March of Return. The focus of this procedural phase is whether Palestine is ‘a State’ in relation also suggest evidence of criminal behavior by Hamas that she believes within her jurisdictional orbit. The ICC has deferred further proceedings in view of the COVIS-19 pandemic, which has led to protests from concerned NGO groups and activists. The brief was prepared with major research assistance from Pearce Clancy and Susan Power of Al Haq for which I am extremely grateful. In the background is the undisguised and bitter hostility of the Government of Israel and its political leaders to Palestine for seeking an international assessment of their contention of Israeli criminality almost as if a legal challenge to Israeli impunity is itself immoral. The United States vents its fury and threats in an analogous manner at the ICC because it had the temerity to agree to investigate charges of U.S, war crimes in Afghanistan. There will be no global rule of law so long as geopolitical actors are made the beneficiaries of double standards in the application and implementation of international law. Earlier the ICC was almost solely preoccupied with allegations involving Africa, and there was an understandable African complaint that its countries were being singled out, while criminality of the West was not even investigated. While this turn by the ICC angering Israel and the United States delegitimizes the ICC for the hegemonic West, it lends the ICC much needed legitimacy among many non-Western States and most human rights NGOs.]   

 

 

Original: English

No.: ICC-01/18
Date: 16 March 2020

Before:

Judge Péter Kovács, Presiding Judge
Judge Marc Perrin de Brichambaut
Judge Reine Adélaïde Sophie Alapini-Gansou

SITUATION IN THE STATE OF PALESTINE

Professor Richard Falk

PRE-TRIAL CHAMBER I

ICC-01/18-77 16-03-2020 1/29 NM PT

Public
Amicus Curiae Submissions Pursuant to Rule 103

Source:

No. ICC-01/18 1/29 16 March 2020

Document to be notified in accordance with regulation 31 of the Regulations of the Court to:

The Office of the Prosecutor

Ms Fatou Bensoua, Prosecutor
Mr James Stewart, Deputy Prosecutor

Legal Representatives of the Victims

Unrepresented Victims

The Office of Public Counsel for Victims

Paolina Massida

States’ Representatives

The competent authorities of the State of Palestine

REGISTRY

Counsel for the Defence

Legal Representatives of the Applicants

Unrepresented Applicants (Participation/Reparation)

The Office of Public Counsel for the Defence

Amicus Curiae

  • ·
  • ·
  • ···
  • ····
  • ·

Professor John Quigley
Guernica 37 International Justice Chambers
The European Centre for Law and Justice
Professor Hatem Bazian
The Touro Institute on Human Rights and the Holocaust
The Czech Republic
The Israel Bar Association
Professor Richard Falk
The Organization of Islamic Cooperation
The Lawfare Project, the Institute for NGO Research, Palestinian Media Watch, and the Jerusalem Center for Public Affairs
MyAQSA Foundation
Professor Eyal Benvenisti
The Federal Republic of Germany Australia
UK Lawyers for Israel, B’nai B’rith UK, the International Legal Forum, the Jerusalem Initiative and the Simon Wiesenthal Centre
The Palestinian Bar Association
Prof. Laurie Blank, Dr. Matthijs de Blois, Prof. Geoffrey Corn, Dr. Daphné Richemond- Barak, Prof.

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16 March 2020

Gregory Rose, Prof. Robbie Sabel, Prof. Gil Troy and Mr. Andrew Tucker The International Association of Jewish Lawyers and Jurists

Professor Asem Khalil and Assistant Professor Halla Shoaibi
Shurat Hadin – Israel Law Center Todd F. Buchwald and Stephen J. Rapp

Intellectum Scientific Society
The International Commission of Jurists
Dr. Robert Heinsch and Dr. Giulia Pinzauti
The Republic of Austria
The International Association of Democratic Lawyers
The Office of Public Counsel for the Defence
The Honourable Professor Robert Badinter, the Honourable Professor Irwin Cotler, Professor David Crane, Professor Jean-François Gaudreault- DesBiens, Lord David Pannick and Professor Guglielmo Verdirame
The Palestinian Center for Human Rights, Al-Haq Law in the Service of Mankind, Al- Mezan Center for Human Rights and Aldameer Association for Human Rights
The Federative Republic of Brazil Professor Malcolm N Shaw
Hungary
Ambassador Dennis Ross
The International Federation for Human Rights, No Peace Without Justice, Women’s Initiatives for Gender Justice and REDRESS Professor William Schabas International-Lawyers.org
The League of Arab States
Me Yael Vias Gvirsman
The Popular Conference for Palestinians Abroad
The Israel Forever Foundation
Dr. Frank Romano
Dr. Uri Weiss
The Republic of Uganda

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16 March 2020

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Registrar Counsel Support Section

Peter Lewis

Victims and Witnesses Unit Detention Section

Victims Participation and Reparations Other Section
Philipp Ambach

No. ICC-01/18 4/29 16 March 2020

  1. Introduction
  1. Following the submission of an application for leave to submit as part of the present proceedings,1 and its subsequent acceptance by this Chamber,2 this amicus curiae submission will address the question directed to the Chamber, namely that of the territorial jurisdiction of the Court in a future investigation into the Situation in Palestine.3
  2. Mindful of the fact that a pronouncement by the Chamber on the question of jurisdiction at this stage is controversial,4 this amicus argues that should a ruling be made at this stage, it must recognise the jurisdiction of the State of Palestine as pertaining to the entirety of the occupied Palestinian territory, comprising the West Bank, including East Jerusalem, and the Gaza Strip. The legal argument will be presented in two stages. Section II will deal with the underlying question of Palestinian statehood under international law, noted as a prerequisite for invoking the jurisdiction of this Court by the State of Palestine, arguing that the Court should be satisfied that Palestine’s status as a State for the purposes of the Court’s statutory framework allows exercise of such authority, and that the principles of interpretation by which the Court operates mandates such a conclusion. Section III will regard the question of statehood as resolved, and address the territorial jurisdiction of each component of

1 Richard Falk, Request for Leave to File Submission Pursuant to Rule 103 of the Rules of Procedure and Evidence (13 February 2020) ICC-01/18-24.

2 ICC, Decision on Applications for Leave to File Observations Pursuant to Rule 103 of the Rules of Procedure and Evidence (20 February 2020) ICC-01/18, para 55, 56.

3 See ICC, Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine (22 January 2020) ICC-1/18-12 (henceforth the “Request”) at para 220.

4 ICC, Request Under Regulation 46(3) of the Regulations of the Court: Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute (6 September 2018) ICC-RoC46(3)-01/18, para 27; ICC, Partially Dissenting Opinion of Judge Marc Perrin de Brichambaut (6 September 2018) ICC- RoC46(3)-01/18-37-Anx; see, however, Anthony Abato, ‘False Positives, False Negatives, and Prosecutorial Discretion regarding the Jurisdiction of the ICC (9 March 2020), available at: https://www.ejiltalk.org/false- positives-false-negatives-and-prosecutorial-discretion-regarding-the-jurisdiction-of-the-icc/: “When faced with difficult jurisdictional questions, such as those in the Situation in the State of Palestine, the PTC should not shy away. It now has the opportunity to conduct an open, participatory proceeding capable of providing legal certainty to those involved. Ultimately, if the PTC finds in favour of the Prosecutor, its ruling will remove the perceived arbitrariness that may otherwise unduly cast a shadow over the Prosecutor’s decision to investigate.”

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occupied Palestinian territory, arguing that the Court’s jurisdiction extends to the West Bank, East Jerusalem, and the Gaza Strip.

  1. The Issue of Statehood
  1. While recognising the scope set by the Pre-Trial Chamber (PTC) within which amici curiae have been requested to abide, I concur with the recognition by the Prosecutor that the Court’s territorial jurisdiction over the territory belonging to the State of Palestine is contingent upon the legitimacy of that State’s claim to statehood.5 Accordingly, and as outlined in the Request for Leave pursuant to Rule 103 of the Rules of Procedure and Evidence,6 this section will provide a brief analysis of the question of Palestinian statehood within the framework of the Rome Statute.7
  2. It is submitted that as a matter of substantive international law, Palestinian statehood has been resolved. While not indicative of statehood in and of itself,8 the recognition thereof by the United Nations (UN) General Assembly in Resolution 67/19 of 4 December 20129 is indicative of widespread academic opinion and State practice.10 Also highly relevant, the

5 Request at para 7; see also Article 12, Rome Statute of the International Criminal Court (adopted 17 July 1998, entry into force 1 July 2002) 2187 UNTS 3 (henceforth the “Rome Statute”).

6 ICC, Rules of Evidence and Procedure (2nd edn, 2013).
7 See Richard Falk, Request for Leave to File Submission Pursuant to Rule 103 of the Rules of Procedure and

Evidence (13 February 2020) ICC-01/18-24, at para 4.

8 Valentina Azarov and Chantal Meloni, ‘Disentangling the Knots: A comment on Ambos’ ‘Palestine, ‘Non- Member Observer’ Status and ICC Jurisdiction’’ (27 May 2014) EJIL:Talk!, available at: https://www.ejiltalk.org/disentangling-the-knots-a-comment-on-ambos-palestine-non-member-observer-status- and-icc-jurisdiction/#more-10954; it has been compellingly argued that the modern Palestinian State long pre- dates recognition by the General Assembly, see, inter alia, Victor Kattan, ‘Muddying the Waters: A Reply to Kay and Kern on the Statehood of Palestine and the ICC – Part I’ (9 August 2019) Opinio Juris, available at: https://opiniojuris.org/2019/08/09/muddying-the-waters-a-reply-to-kay-and-kern-on-the-statehood-of-palestine- and-the-icc-part-i/; Victor Kattan, ‘Muddying the Waters Still Further: A Response to Steven Kay and Joshua Kern’ (20 August 2019) Opinio Juris, available at: https://opiniojuris.org/2019/08/20/muddying-the-waters-still- further-a-response-to-steven-kay-and-joshua-kern/.

9 UN General Assembly Resolution 67/19 (4 December 2012) UN Doc. A/RES/67/19 at para 2: “[d]ecides to accord to Palestine non-member observer State status” (emphasis added).

10 See, inter alia, John Quigley, ‘ICC and Palestine Symposium: General Assembly Resolution 67/19 and Palestine as a State before the ICC’ (5 February 2020) Opinio Juris, available at: https://opiniojuris.org/2020/02/05/icc-and-palestine-symposium-general-assembly-resolution-67-19-and- palestine-as-a-state-before-the-icc/, arguing that Resolution 67/19 was conclusive; also John Quigley, ‘Palestine is a State so the Consent Declaration is a Valid Basis for Investigation by the ICC’ in Richard H Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Bril Nijhoff, 2016).

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State of Palestine has been diplomatically recognised by a reported 140 States,11 has been afforded full membership of the UN Educational, Scientific and Cultural Organization (UNESCO),12 inducted into the Court’s Assembly of States Parties (ASP),13 recognised and been reviewed by UN human rights treaty bodies, including the UN Committee on the Elimination of Discrimination against Women (CEDAW) in July 201814, the UN Committee for the Elimination of Racial Discrimination (CERD) in August 201915, the UN Committee on the Rights of the Child (CRC) in January 202016, and soon the UN Committee Against Torture (CAT)17, as being capable of conferring jurisdiction under the relevant international human rights treaties, while it has further acceded to myriad international

11 As reported in UN General Assembly, Report of the Committee on the Exercise of the Inalienable Rights of the Palestinian People (4 August 2019) UN Doc A/74/35, para 17.

12 UNESCO, General Conference admits Palestine as UNESCO Member (31 October 2011), available at:

http://www.unesco.org/new/en/media-services/single- view/news/general_conference_admits_palestine_as_unesco_member/; UNESCO, Records of the General Conference, 36th session (25 October-10 November 2011) VI General Resolutions, at para 76; note also that considerable weigh has been put on Palestine’s status as a UNESCO member, see Jure Vidmar, ‘Palestine v United States: Why the ICJ does not need to decide whether Palestine is a state’ (22 November 2018) available at: https://www.ejiltalk.org/palestine-v-united-states-why-the-icj-does-not-need-to-decide-whether-palestine-is- a-state/; William Schabas, ‘Relevant Depositary Practice of the Secretary-General and its Bearing on Palestinian Accession to the Rome Statute’ (3 November 2011) PhD studies in human rights, available at: http://humanrightsdoctorate.blogspot.com/2011/11/relevant-depositary-practice-of.html; Michael Kearney, ‘The Situation in Palestine’ (5 April 2012) Opinio Juris, available at: http://opiniojuris.org/2012/04/05/the-situation- in-palestine/.

13 ICC, Welcoming ceremony for a new State Party: State of Palestine (1 April 2015).

14 See Article 25, Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entry into force 3 September 1981) 1249 UNTS 13: “The present Convention shall be open for signature by all States”; see also CEDAW, Concluding Observations: State of Palestine (25 July 2018) UN Doc CEDAW/C/PSE/CO/1.

15 See Article 17(1), International Convention on the Elimination of All Forms of Racial Discrimination (adopted 7 March 1966, entry into force 4 January 1969) 660 UNTS 195 (henceforth “ICERD”): “This Convention is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to this Convention”; CERD, Concluding Observations: State of Palestine (20 September 2019) UN Doc CERD/C/PSE/CO/1-2; see also decision at CERD, Inter-State communication submitted by the State of Palestine against Israel (12 December 2019) UN Doc CERD/C/100/5 (henceforth the “CERD Decision”).

16 See Article 46, Convention on the Rights of the Child (adopted 20 November 1989, entry into force 2 September 1990) 1577 UNTS 3: “The present Convention shall be open for signature by all States”; see also CRC, Concluding Observations: State of Palestine (6 March 2020) UN Doc CRC/C/PSE/CO/1.

17 Article 25, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entry into force 26 June 1987) 1465 UNTS 85: “This Convention is open for signature by all States”; see also Palestine’s State Report: State of Palestine, Initial report submitted by the State of Palestine under article 19 of the Convention, due in 2015(26 August 2019) UN Doc CAT/C/PSE/1.

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treaties and human rights instruments, including the Apartheid Convention18, Rome Statute,

the four Geneva Conventions and their Additional Protocols.19

  1. Nonetheless, an analysis as to statehood appears to be necessary, given the prerequisite

found in Article 12, as well as the corpus of argumentation outlined in amici applications in preparation of the current proceedings. That said, it is submitted that the PTC is bound to consider this issue as a matter of procedural, as opposed to substantive law. I agree with the Prosecutor in her opinion that the determination to be made by the Court is not whether Palestine constitutes a State as a matter of general international law, but solely for the purposes of the Court’s jurisdiction under the Rome Statute.20

  1. The PTC therefore need not consider what have been dubbed the “Montevideo Criteria”21 of statehood.22 Instead, the PTC need only consider whether the referral submitted by the State of Palestine23 is consistent with the terms of Article 12(2)(a) of the Rome Statute, having reference to the accepted rules of interpretation outlined in the Vienna Convention

18 International Convention on the Suppression and Punishment of the Crime of Apartheid (adopted 30 November 1973, entry into force 18 July 1976) UN General Assembly Resolution A/RES/3068(XXVIII).

19 Request, para 127; note also Victor Kattan, ‘The Implications of Joining the ICC after Operation Protective Edge’ (2014) 44(1) Journal of Palestine Studies 63: “The ability to sign, ratify, and accede to treaties is important because it is considered to be one of the essential attributes of statehood.”

20 Request, para 42, 111; Alain Pellet, ‘The Effects of Palestine’s Recognition of the International Criminal Court’s Jurisdiction’ (2010) 6, available at: https://iccforum.com/media/background/gaza/2010-02-18_Pellet- Memo_(English_Translation).pdf.

21 Article 1, Montevideo Convention on the Rights and Duties of States (adopted 26 December 1933, entry into force 26 December 1934): “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states.”

22 In any case, the Montevideo Criteria should not be viewed as a rigid yardstick with which to judge statehood, on this, and the context in which the Convention was drafted, see Quigley op cit (2020); see also James Crawford, The Creation of States in International Law (2nd edn, Oxford University Press, 2007) at 437: “… the formula represented in the Montevideo Convention is considered to a certain extent insufficient and outdated, even hackneyed.”

23 State of Palestine, Referral by the State of Palestine Pursuant to Articles 13(a) and 14 of the Rome Statute (15 May 2018).

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on the Law of Treaties,24 and the object and purpose of the Rome Statute, namely to end

impunity for international crimes.25

  1. As the Prosecutor has compellingly argued, the status of a “State” within the context of

Articles 12(1), 12(2), and 125(3) of the Rome Statute, being consistent throughout, has been concretely achieved by the deposit of Palestine’s instrument of accession with the UN Secretary-General.26 The so-called “all States” formula embedded in the framework of the Rome Statute27 necessarily links the eligibility criteria for accession to determinations of the General Assembly.28 Thus, accession to the Rome Statute contains an implicit “statehood check”, whereby the Secretary-General confirms whether the entity attempting to accede constitutes a State under international law. While deference to the pronouncements of the General Assembly is controversial to some observers, it must be stressed that this approach is consistent with previous Court practice regarding Palestine,29 and is desirable to avoid a situation in which the final pronouncement on statehood for the purposes of a given instrument falls entirely on the Secretary-General.30

  1. The question, therefore, is not whether Palestine constitutes a State as such, but whether, through its accession to the Rome Statute, as well as other instruments and fora, it has

24 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entry into force 27 January 1980) 1155 UNTS 331 (henceforth the “VCLT”).

25 Request, para 29: “to end impunity and ensure that the Court’s jurisdiction is triggered responsibly and lawfully”; ICC, Separate Opinion of Judge Péter Kovács (27 January 2016) ICC-01/15-12-Anx-Corr, para 65: “a policy running against the basic philosophy of the ICC, namely to end impunity”; Preamble, Rome Statute: “the most serious crimes of concern to the international community as a whole must not go unpunished”; Michail Vagias, The Territorial Jurisdiction of the International Criminal Court (Cambridge University Press, 2014) 77: “… its role is also geared towards preventing or deterring future atrocities”; interestingly it is worth noting Vidmar’s contention, op cit, in the context of the International Court of Justice: “… regulating an entity’s legal status is clearly not the object and purpose of the treaty” (emphasis added).

26 Request, para 103.
27 Article 125(3), Rome Statute.

28 See Treaty Section, UN Office of Legal Affairs, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties (1999) UN Doc. ST/LEG/7/Rev.1, paras 81-83.

29 While the former Prosecutor refrained from opening an investigation due to concerns of jurisdiction, his analysis suggests that his Office’s position would have been different had the General Assembly passed Resolution 67/19 by that time, see Office of the Prosecutor, Situation in Palestine (3 April 2012) at paras 5, 7, available at: https://www.icc-cpi.int/NR/rdonlyres/9B651B80-EC43-4945-BF5A- FAFF5F334B92/284387/SituationinPalestine030412ENG.pdf.

30 Request, para 109.

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9.

attained the full suite of rights and obligations found therein; here, the answer should be in the affirmative, given Palestine’s acceptance as both a State Party and functional member of the international community. This approach, referred to as the “functionalist approach” has a strong basis elsewhere in the field of international law,31 and has been widely endorsed, explicitly or otherwise, by commentators as the appropriate lens for the Court.32 This was appreciated recently by CERD in its jurisdictional finding on the Inter-State Complaint submitted by Palestine, which did find it necessary to extend its analysis beyond Palestine’s status, and functional capacity to act, as a State Party to ICERD.33

Moreover, it should be stressed that this approach is not merely consistent with the object and purpose of the Rome Statute, but is arguably mandated by the “General Rule” of interpretation.34 As previously affirmed by the Court, this judicial body is not permitted to decline to draw on a particular element of the “General Rule”,35 and should interpret all sources of law in light of the object and purpose of the Rome Statute,36 while doing what is necessary to avoid results that are unreasonable, or produce absurdities and unjust results.37 The Rome Statute thus requires its interpretation to be carried out in light of internationally

31 While not directly applicable to the Rome Statute framework, the best example of this is the so-called “Vienna Formula”, stemming from Article 81, VCLT, see: Schabas op cit; on the prevalence of functionalism elsewhere, see Pellet op cit, para 9.

32 See, inter alia: Valentina Azarova and Triestino Mariniello, ‘Why the ICC Needs a ‘Palestine Situation’ (More than Palestine Needs the ICC): On the Court’s Potential Role(s) in the Israeli-Palestinian Context’ (2017) 11(1) Diritti Umani e Diritto Internazionale (Human Rights and International Law) 152-154; Pellet op cit; Kai Ambos, ‘Palestine, UN Non-Member Observer Status and ICC Jurisdiction’ (6 May 2014) EJIL:Talk!, available at: https://www.ejiltalk.org/palestine-un-non-member-observer-status-and-icc-jurisdiction/; Michael Kearney, ‘Palestine and the International Criminal Court: Asking the Right Question’ in Richard H Steinberg (ed), Contemporary Issues Facing the International Criminal Court (Bril Nijhoff, 2016) 31-35; Yuval Shany, ‘In Defence of Functional Interpretation of Article 12(3) of the Rome Statute: A Response to Yaël Ronen’ (2010) 8 Journal of International Criminal Justice 329; Al-Haq, Position paper on issues arising from the PA submission of a Declaration to the Prosecutor of the ICC under Article 12(3) of the Rome Statute (14 December 2009).

33 CERD Decision, para 3.9. 34 Article 31(1), VCLT.

35 ICC, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v Germain Katanga: Judgement pursuant to article 74 of the Statute (7 March 2014) ICC-01/04-01/07, para 44.

36 Ibid., 47.
37 ICC, Situation in the Central African Republic in the Case of the Prosecutor v Jean-Pierre Bemba Gombo (21

March 2016) ICC-01/05-01/18, paras 80-81.

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recognised human rights norms,38 which must necessarily include the long recognised right of the Palestinian people to self-determination, a jus cogens norm,39 which gives rise to obligations erga omnes, binding on all States.40 As certain acts by the State of Israel in the occupied Palestinian territory create obligations of such a character,41 this must be considered in the PTC’s interpretative calculus. The Prosecutor alludes to this in her Request, wherein she notes that “[i]t would appear contrary to the principle of effectiveness42 and good faith to allow an entity to join the ICC but then to deny the rights and obligations of accession … the Statute does not provide for or regulate the implications of a negative determination of statehood by the Court.”43

  1. It is useful to dwell on the implications of a negative determination of Palestine’s standing as a State Party before the Court: “[w]ould a referral and the deposit of the instrument of accession … be deemed invalid? Would that State Party be expelled from the Court? Or would it become a sui generis State Party which can still participate and vote in the ASP … even though the Court may not have jurisdiction over such a State?”44 If such a perverse approach were adopted, Palestine would be rendered as akin to a “legal black hole”, despite its accession.45

38 Article 21(3), Rome Statute.

39 Antonio Cassese, International Law (2nd edn, Oxford University Press, 2005) 65; Malcolm N Shaw, International Law (6th edn, Cambridge University Press, 2008) 808; James Crawford, ‘Opinion: Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories’ (25 January 2012) para 26, available at: https://www.tuc.org.uk/sites/default/files/tucfiles/LegalOpinionIsraeliSettlements.pdf.

40 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia [South West Africa] Notwithstanding Security Council Resolution 276 (Advisory Opinion) (1971) para 29 (henceforth the “Namibia Opinion”).

41 ICJ, Legal Consequences of the Construction of a Wall (Advisory Opinion) (2004) para 155-156 (henceforth the “Wall Opinion”).

42 Defined in ICC, Joint Concurring Opinion of Judges Eboe-Osuji,Morrison, Hofmanski and Bossa (6 May 2019) ICC-02/05-01/09-397-Anx1 at para 419: “a principle which gives preference to that interpretation of a treaty which best promotes its major purposes”, quoting Myers McDougal and Richard Gardner, ‘The Veto and the Charter: An Interpretation for Survival’ (1951) 60 Yale Law Journal 261.

43 Request, para 114. 44 Ibid.
45 Shany, op cit, 337.

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  1. It would therefore appear that, in any event, a negative determination by the PTC at this stage would be manifestly incompatible with the object and purpose of the Rome Statute and the inclusive goals of the Court. As such, attempting to deviate from the functionalist approach, outlined above and adopted by CERD, and to apply the so-called “Montevideo criteria”, would seem an ultra vires act by the Court, as well as being an overly rigid and ill-advised step inconsistent with “the basic philosophy” of the Court which “might result in an increase in the impunity gap.”46

III. The Issue of Territorial Jurisdiction

  1. The issue of statehood so resolved, the amicus observations now turn to the territorial scope of a potential future investigation.47 It is submitted that the same principles and rules of interpretation that guide the Chamber in its determination on the issue of Palestinian statehood should also apply here. With due regard for the “General Rule”, the principle of effectiveness, and due regard for internationally recognised norms of human rights, particularly the collective right of self-determination, it is clear that to provide a meaningful method with which to end impunity for international crimes, the scope of a future investigation by the Prosecutor should encompass the entirety of the occupied Palestinian territory, namely the West Bank, including East Jerusalem, and the Gaza Strip. Moreover, as noted by the Prosecutor, it is appropriate to stress that a determination as to jurisdictional scope here should not be conflated with a delineation of the Palestinian territorial claim as such.48
  2. While an extended analysis of the events leading to the beginning of the occupation of the occupied Palestinian territory in 1967 does not require reiterating here,49 and will

46 Kovács, op cit, para 65.

47 See Request, para 190.

48 Ibid., 192.

49 For helpful narration, see Ardi Imseis, ‘On the Fourth Geneva Convention and the Occupied Palestinian Territory’ (2003) 44(1) Harvard International Law Journal 69-85; for events prior to 1948, see also Victor

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doubtlessly be provided in detail by other amici, it is useful at this stage to recall the status of the occupied Palestinian territory as occupied since 1967, as it represents the current Palestinian State’s territorial claim.50 This claim has been bolstered51 by the territorial nature of the Palestinian right to self-determination, including permanent sovereignty over natural wealth and resources, as repeatedly recognised by, inter alia, the UN General Assembly,52 the Human Rights Council,53 and the ICJ.54 Accordingly, just as the Chamber is bound to consider this right in its interpretation on the issue of statehood, it should be considered during its analysis as to the extent of its jurisdiction.

  1. Moreover, the legal importance of the maintenance of the character of the occupied Palestinian territory, encompassing the West Bank, including East Jerusalem, and the Gaza Strip, as a single territorial unit, has been repeatedly recognised by the international community, including by the UN Security Council,55 and General Assembly.56 It is further

Kattan, From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict, 1891- 1949 (Pluto Press, 2009).

50 See ICJ, Written Statement Submitted by Palestine (30 January 2004) para 547; State of Palestine, Referral by the State of Palestine Pursuant to Articles 13(a) and 14 of the Rome Statute (15 Mary 2018), fn 4.

51 On this see Request, para 194, fn. 612, quoting Robert Jennings and Arthur Watts, Oppenheim’s International Law Vol. 1, Peace: Parts 2 to 4 (Longman, 1996) para 274: “[i]t is clear that the injection of a legal principle of self-determination into the law about acquisition and loss of territorial sovereignty is both important and innovative. State and territory are, in the traditional law, complementary terms. Normally only a state can possess a territory, yet that possession of a territory is the essence of the definition of state. The infusion of the concept of the rights of a ‘people’ into this legal scheme is therefore a change which is more fundamental than at first appears”; see also Crawford op cit, para 29: “In light of the principle of self-determination, sovereignty and title in an occupied territory are not vested in the occupying power but remain with the population under occupation. As such, Israel does not acquire a legal right to or interest in land in the West Bank purely on the basis of its status as an occupier.”

52 See, inter alia, UN General Assembly Resolutions: 2649 (XXV) (30 November 1970) para 5; 67/19 (4 December 2012) UN Doc A/RES/67/19, para 1,4; 70/15 (4 December 2015) UN Doc A/RES/70/15, para 21(b); 71/23 (15 December 2016) UN Doc A/RES/71/23, para 22(b); 72/14 (7 December 2017) UN Doc A/RES/72/14, para 24(b); 793/96 (18 December 2018), preamble; 73/19 (5 December 2018) UN Doc A/RES/73/19, para 22(b); 73/255 (15 January 2019) UN Doc A/RES/73/255 para 1; 73/158 (9 January 2019) UN Doc A/RES/73/158.

53 Most recently, UN Human Rights Council Resolution 40/24 (17 April 2019) UN Doc A/HRC/RES/40/24. 54 Wall Opinion, para 122.

55 The Security Council declared any attempts to alter the “physical character, demographic composition, institutional structure, or status” of the oPt as being of “no legal validity” and “a flagrant violation of the Fourth Geneva Convention … and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace”, UN Security Council Resolution 465 (1 March 1980) UN Doc S/RES/465, para 5; see also Resolution 2334 (23 December 2016) UN Doc S/RES/2334, para 3.

56 UN General Assembly Resolutions: 70/15 (4 December 2015) UN Doc A/RES/70/15, para 11; 71/23 (15 December 2016) UN Doc A/RES/71/23 para 12; 72/14 (7 December 2017) UN Doc A/RES/72/14 para 13; 73/19 (5 December 2018) UN Doc A/RES/73/19 para 13; 74/11 (9 December 2019) UN Doc A/RES/74/11, para 8.

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necessary to clarify that Palestine’s claim to its territory, or indeed that of any State, is not contingent on having “defined and settled boundaries”57 or the exclusive authority to exercise jurisdiction, of any kind, therein.

  1. Nonetheless, due to the idiosyncratic legal complexities imposed by Israel upon each of the three geographic domains of the occupied Palestinian territory (the West Bank, including East Jerusalem, and the Gaza Strip), as part of the former’s campaign of strategic fragmentation imposed upon the Palestinian people as a whole,58 it is worth considering each territorial domain so as to clarify their specific relationship to the overall territorial claims of the State of Palestine, and as such to the scope of the Court’s jurisdiction.
  2. West Bank
  3. As noted above, the West Bank has been under belligerent Israeli military occupation since the 1967 War,59 which triggered the applicability of the Fourth Geneva Convention60 and Hague Regulations61 throughout the occupied Palestinian territory. Later, in 1993, a process began whereby the Palestine Liberation Organisation (PLO) and the State of Israel produced what became known as the Oslo Accords, which divided the West Bank into Areas A, B, and C.62 For the purposes of this analysis, it should be noted that a core aspect of these

57 Shaw, quoted in Request, fn. 608.

58 On this, see throughout UN ESCWA, Israeli Practices towards the Palestinian People and the Question of Apartheid, Palestine and the Israeli Occupation, Issue No. 1, (2017) UN Doc E/ESCWA/ECRI/2017/1; see also, Al-Haq, et al, Joint Parallel Report to the United Nations Committee on the Elimination of Racial Discrimination on Israel’s Seventeenth to Nineteenth Periodic Reports (10 November 2019), available at: http://www.alhaq.org/cached_uploads/download/2019/11/12/joint-parallel-report-to-cerd-on-israel-s-17th-19th- periodic-reports-10-november-2019-final-1573563352.pdf.

59 Wall Opinion, para 73, 101.
60 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949,

entry into force 21 October 1950) 75 UNTS 287 (henceforth the “Fourth Geneva Convention”).

61 Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land) (adopted 18 October 1907, entry into force 26 January 1910) (henceforth the “Hague Regulations”).

62 See Request, para 68.
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agreements is the exclusion of all Israelis in the occupied Palestinian territory from

Palestinian criminal jurisdiction.63

  1. A key component of the occupation’s machinery has been the construction and maintenance

of illegal Israeli settlements in the West Bank, including East Jerusalem.64 These settlements have largely been constructed on appropriated Palestinian land, which is typically seized under the pretext of “military necessity”, or through its designation, by the Israeli occupying authorities, as “State” or abandoned land65, and are predominantly located in Area C, which the Oslo Accords identify as being subject to Israeli jurisdictional control.

  1. It is submitted, in line with the analysis put forward by the Prosecutor, that the Oslo process, constitutive of “Oslo I” and “Oslo II”, does not create a legal barrier or challenge to the territorial jurisdiction of the State of Palestine, and therefore the Court.66 First, the Oslo Accords constitute a “special agreement” for the purposes of the Fourth Geneva Convention, and as such cannot deprive the Palestinian people of their inalienable rights and protections under international law and the Fourth Geneva Convention.67 Accordingly, the fact that the PLO has entered into such agreements with the State of Israel may not be interpreted as having relinquished the right of self-determination and permanent sovereignty over natural resources inherent to the Palestinian people, nor can it be interpreted as constituting a renunciation of any other rights conferred upon the protected population.

63 Ibid., para 70.

64 For a timeline of the Israeli settler enterprise, see UN Human Rights Council, Report of the independent international fact-finding mission to investigate the implications of the Israeli settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the Occupied Palestinian Territory, including East-Jerusalem (7 February 2013) UN Doc A/HRC/22/63, para 24-30.

65 Ibid., 20.
66 See Request, para 183.

67 Articles 7, Fourth Geneva Convention; Request, para 186; see also Basheer AlZoughbi, ‘The Operation of the Oslo Treaties and the Pacific Mechanisms of Conflict Resolution under Public International Law’ (2013) 45(2) Peace Research 39-40: “The transfer of power that was introduced in the aftermath of the Oslo Accords as a result of the agreements concluded between the PLO and Israel changed neither the status of the Occupied Palestinian Territory nor that of protected persons who were being deprived of the benefits of the 1949 Fourth Geneva Convention on a continuous basis … Thus, according to the Fourth Geneva Convention, Israel has legal obligations to honour the rights and ensure the welfare of those under occupation.”

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  1. Moreover, as also recognised by the Prosecutor, the provisions of Oslo II regarding the regulation of the jurisdiction of the Palestinian National Authority (PNA) relates solely to enforcement, as opposed to prescriptive jurisdiction, i.e. the ability to enforce, as opposed to create, law.68 Stahn, referenced extensively by the Prosecutor,69 draws this distinction most clearly: noting the separation of jurisdiction into these two categories, he contends that “[a]ny other conception would have detrimental consequences for international law. It would imply that a state that is unable to exercise jurisdiction over specific parts of its territory would lose its ability to investigate or prosecute offenders or to seize an international jurisdiction with the power to try offenders. This would create significant accountability gaps” (emphasis added).70 Crucially, the ability to confer jurisdiction on the Court is a matter of prescriptive jurisdiction.71

20.Stahn further observes that “[b]ilateral immunity agreements that award exclusive jurisdiction over specific categories of persons to another state do not extinguish the general capacity of the contracting state to allocate jurisdiction to another entity. If anything, such agreements demonstrate the inherent or pre-existing competence of the State to exercise such jurisdiction.”72 As such, the inability of the PNA to punish, prosecute, or otherwise enforce its laws against Israelis does not preclude the Court from investigating, charging,

68 Request, para 184; see also Ambos op cit: “Oslo II did not, indeed could not, take from Palestine the (prescriptive) jurisdiction over its territory but only limited the exercise of this jurisdiction”.

69 See, in particular, Request, fn. 581-582.

70 Carsten Stahn, ‘Response: The ICC: Pre-Existing Jurisdictional Treaty Regimes, and the Limits of the Neo Dat Quod Non Habet Doctrine – A Reply to Michael Newton’ (2016) 49(2) Vanderbilt Journal of Transnational Law 450.

71 Ambos op cit: “… pursuant to Oslo II, the PNA must not exercise jurisdiction over Israelis but it may delegate this jurisdiction to an international court. Otherwise, Oslo II would operate as a bar to the international prosecution of possible international crimes by Israeli soldiers in the West Bank, a result hardly compatible with the ICC’s mission and the underlying duty to prosecute international core crimes.”

72 Stahn op cit, 451, also 451-452: “If a state has conferred jurisdiction to the ICC, despite a previous bilateral treaty arrangement limiting domestic jurisdiction, the resolution of conflicting obligations becomes an issue of complementarity and cooperation. The ICC is not bound by the agreement of the State Party. It does therefore not have to apply the rule lex specialis derrogat lex generalis. It will instead have to assess whether there are any domestic investigations or not. In case of inaction, the ICC is generally competent to proceed with its own investigations and prosecution.”

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or prosecuting such individuals for international crimes committed within the occupied

Palestinian territory, including in Area C in the occupied West Bank.

  1. Alternatively, Al-Haq, a Palestinian human rights organisation, outlines the argument73 that grave breaches of international humanitarian law, such as the construction and maintenance of Israeli settlements, which have been recognised by the ICJ as amounting to violations of jus cogens norms giving rise to obligations erga omnes,74 create obligations on all States to take positive action to try or extradite those suspected of grave breaches of the Geneva Conventions.75 This obligation, it is argued, has been recognised as binding the PNA, without prejudice to the existence, or supposed non-existence, of a State of Palestine. As such, the purported inability of the PNA to fulfil this duty as a result of a strict interpretation of Oslo II, whether through the Court or otherwise, would amount to undermining recognised principles of international law; “[b]y this reckoning there is broad consensus that Palestine, at least when it comes to the application and enforcement of international

humanitarian law, is on a par with proper states.”76

  1. Regardless of which approach the Court finds most compelling, Kearney is doubtless

correct in stressing that similar restrictions imposed by the Oslo Accords, such as the capacity to engage in international relations,77 are not reflected in State practice, by either third States or Palestine itself, nor is it conducive to the experience of international organisations and human rights bodies.78 The UN Commission of Inquiry addressing the 2018 protests in the occupied Palestinian territory (Commission of Inquiry) affirmatively

73 Originating in Al-Haq, Position Paper on Issues Arising from the Palestinian Authority’s Submission of a Declaration to the Prosecutor of the International Criminal Court under Article 12(3) of the Rome Statute (14 December 2009).

74 Wall Opinion, 88, 156.

75 See Article 146(2), Fourth Geneva Convention.

76 See Kearney op cit, 34-35.

77 See Request, para 71.

78 Kearney op cit: “It is clear that international practice is to overlook the Oslo restrictions for the benefit of the Palestinian people”.

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found that the PNA has obligations, under both international human rights and humanitarian law,79 applicable to “the entire OPT” (emphasis added),80 without distinction as to the Areas delineated in the Oslo Accords. This is further corroborated by, inter alia, CEDAW81, CERD82, and the CRC.83 As such, the Oslo Accords should not be deemed to be a barrier to the full exertion of the Court’s jurisdiction over the occupied West Bank as a whole.

  1. Finally, it has been argued that the Court’s jurisdiction may not be extended to, or would be of questionable authority, with respect to illegal Israeli settlements in the occupied West Bank.84 It is respectfully submitted that this argument represents the perfect opportunity to illustrate why Article 21(3) should be applied in interpreting the Court’s jurisdiction in Palestine. The construction and maintenance of illegal Israeli settlements in the West Bank, as well as East Jerusalem, has been well established to be in violation of internationally recognised principles of human rights law,85 including jus cogens norms, which give rise to obligations erga omnes. Accordingly, interpreting the Court’s, and indirectly the Prosecutor’s, jurisdiction as limited due to the presence of the settlements would be fundamentally incompatible with the Chamber’s obligation to interpret the relevant law in light of principles of human rights.
  2. East Jerusalem

79 UN Human Rights Council, Report of the independent international commission of inquiry on the protests in the Occupied Palestinian Territory (25 February 2019) UN Doc A/HRC/40/74, para 708 (henceforth “Commission of Inquiry Report”).

80 Ibid., para 759.
81 CEDAW, Concluding Observations: State of Palestine (25 July 2018) UN Doc CEDAW/C/PSE/CO/1, PARA

82 CERD, Concluding Observations: State of Palestine (20 September 2019) UN Doc CERD/C/PSE/CO/1-2, para 3.

83 CRC, Concluding Observations: State of Palestine (13 February 2020) UN Doc CRC/C/PSE/CO/1, para 4.

84 For this argument, see Stephen Kay and Joshua Kern, ‘The Statehood of Palestine and Its Effect on the Exercise of ICC Jurisdiction’ (5 July 2019) Opinio Juris, available at: https://opiniojuris.org/2019/07/05/the- statehood-of-palestine-and-its-effect-on-the-exercise-of-icc-jurisdiction%EF%BB%BF/.

85 See throughout, Human Rights Council op cit (7 February 2013); see also Committee for Economic, Social and Cultural Rights, Concluding Observations: Israel (12 November 2019) UN Doc E/C.12/ISR/CO/4, para 11, 16, 46.

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  1. East Jerusalem, or those portions of the city which lie beyond the Green Line, has been repeatedly affirmed and reaffirmed to be a part of the occupied Palestinian territory in countless UN General Assembly,86 Security Council,87 and Human Rights Council88 resolutions, as well as in the Wall Opinion issued by the ICJ.89 Moreover, actions which “purport to have altered the character, status or demographic composition of the Holy City of Jerusalem” have been deemed by the international community to “have no legal effect, are null and void and must be rescinded in compliance with relevant resolutions of the Security Council”.90 While many proposals relating to the status of Jerusalem have been suggested,91 including the so-called corpus separatum proposed in the UN partition plan92, the territorial claim of Palestine to Jerusalem has never been refuted; tellingly, the importance of determining this issue with respect to the right of the Palestinian people to self-determination, including permanent sovereignty, was reiterated on the occasion of Israel’s induction into the UN.93
  2. While it is respectfully submitted that this should be sufficient to satisfy the Court as to its jurisdiction over East Jerusalem, given the importance of the city, both spiritually and as an

86 See, inter alia, UN General Assembly Resolutions: 36/120(D) (10 December 1981), para 5; 36/120(F) (10 December 1981), para 2; 72/15 (7 December 2017) UN Doc A/RES/72/15, preamble; 74/11 (9 December 2019) UN Doc A/RES/74/11, para 8, 12.

87 UN Security Council Resolutions: 465 (1 March 1980) UN Doc S/RES/465, para 5; 476 (30 June 1980) UN Doc S/RES/476, para 1; 478 (20 August 1980) UN Doc S/RES/478, para 3.

88 Most recently in UN Human Rights Council Resolution 40/23 (22 March 2019) UN Doc A/RES/40/23, para 15.

89 See, Wall Opinion para 119: “… the wall’s sinuous route has been traced in such a way as to include within that area the great majority of the Israeli settlements in the occupied Palestinian Territory (including East Jerusalem)”, also para 120: “The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.”

90 UN General Assembly Resolution ES-10/19 (22 December 2017) UN Doc A/RES/ES-10/19, para 1, see also UN Security Council Resolutions: 252 (21 May 1968) UN Doc S/RES/252, para 2; 267 (3 July 1969) UN Doc S/RES/267, para 4; 298 (25 September 1971) UN Doc S/RES/1971, para 3.

91 See, for example, John V Whitbeck, ‘The Road to Peace Starts in Jerusalem: The “Condominium” Solution’ (1996) 45(3) Catholic University Law Review 781.

92 See Part III, UN General Assembly Resolution 181(II) (29 November 1947) UN Doc A/RES/181(II).
93 UN General Assembly Resolution 273(III) (11 May 1949) UN Doc A/RES/273(III), preamble, “[r]ecalling its

resolutions of 29 November 1947 and 11 December 1948”.

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integral component of the territory of Palestine, its status as occupied territory94, as well as the gravity of the situation on the ground, this section will provide further analysis as to the sovereignty and right to self-determination of the Palestinian people in the city, and its continuity ever since the British Mandate was established.

  1. During the British Mandate period, which commenced after the fall of the Ottoman Empire as a result of the peace diplomacy at Versailles, Palestine was categorised, under British rule, as a “Class A” mandate, along with others such as Iraq, Syria, and Lebanon. The ICJ declared that “international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them” as a “sacred trust” that pre-existed the creation of the Mandate system, and “continued to apply to League of Nations mandated territories”.95 Thus, the Palestinian people were recognised as having an inherent right to self-determination, even while under Mandate rule.96 The continuity of this right, which encompassed Jerusalem, the capital of Palestine during the Mandate, remained unbroken, including through the 1948 War. The Jewish Agency declared the establishment of the State of Israel following the seizure of the western part of the city of Jerusalem, and after a protracted campaign of ethnic cleansing directed towards the indigenous Palestinian people,97 the newly-established State of Israel immediately declared Jerusalem to be “Israel-occupied territory.”98 Nonetheless, a few

94 Wall Opinion, para 78.
95 Namibia Opinion, para 52; see also ICJ, International Status of South West Africa (Advisory Opinion) (11 July

1950).

96 On this, see Al-Haq, ‘Al-Haq Briefing Paper – 70 Years On: Palestinians Retain Sovereignty Over East and West Jerusalem’ (2018), available at: http://www.alhaq.org/cached_uploads/download/alhaq_files/images/stories/PDF/Jerusalem_20%20Oct_final.pdf ; see also John Quigley, ‘Sovereignty in Jerusalem’ (1996) 45(3) Catholic University Law Review 778: Palestinians “had a right to sovereignty based on its connection to the territory, and on the principle of self- determination”.

97 See Henry Cattan, Jerusalem (St Martins’ Press, 1981) 48; also, generally, Ilan Pappe, ‘The 1948 Ethnic Cleansing of Palestine’ (2006) 36(1) Journal of Palestine Studies 6; Ilan Pappe, The Ethnic Cleansing of Palestine (One World, 2006).

98 Israel Ministry of Foreign Affairs, 2 Jerusalem Declared Israel-Occupied City- Government Proclamation, available at: https://mfa.gov.il/mfa/foreignpolicy/mfadocuments/yearbook1/pages/2%20jerusalem%20declared%20israel- occupied%20city-%20governm.aspx.

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months later, in February 1949, Israel abolished military rule and instituted its own civil

administration in the city, amounting to de facto annexation.99
27. East Jerusalem was among the Palestinian territories occupied by Israel during the 1967

War. As noted by the UN Secretary-General in 1967, “[t]he Israel authorities … stated … that the municipality of West Jerusalem began operations in East Jerusalem the day after the fighting ceased. In the beginning it acted as the agent of the Military Government, but from 29 June municipal processes started to function according to Israel law.”100 The extension of annexation from the western to the eastern part of the city, as well as neighbouring Palestinian villages101, made it clear that “Israel was taking every step to place under its sovereignty those parts of the city which were not controlled by Israel before 1967.”102 The annexationist extension of Israeli authority over East Jerusalem and the surrounding area through the shifting and redrawing of municipal boundaries adheres to the so-called “Jerusalem 2020 Master Plan”, designed to achieve “spatial segregation”103 within the city, instituted with the ultimate aim of the strategic fragmentation of the Palestinian people104, and the demographic manipulation of the city, restricting the Palestinian presence to 30 percent of the population.105

99 Israel Ministry of Foreign Affairs, 4 Jerusalem-s Military Government Abolished- Government Proclamation, available at: http://www.israel.org/MFA/ForeignPolicy/MFADocuments/Yearbook1/Pages/4%20Jerusalem- s%20Military%20Government%20Abolished-%20Gover.aspx.

100 UN Security Council, Report of the Secretary-General under General Assembly Resolution 2254 (ES-V) Relating to Jerusalem (12 September 1967) UN Doc S/8146, para 28.

101 See B’Tselem, East Jerusalem (11 November 2017, last updated 27 January 2019), available at: https://www.btselem.org/jerusalem.

102 Ibid., para 33.

103 Jerusalem Municipality, Local Outline Plan Jerusalem 2000: Report No. 4 (August 2004), section 7: “… spatial segregation of the various populations groups in the city is a real advantage … It is appropriate, therefore, to direct a planning policy that encourages the continuation of spatial segregation with a substantial amount of tolerance and consideration”, available at: http://www.alhaq.org/cached_uploads/download/alhaq_files/en/wp- content/uploads/2018/03/LocalOutlinePlanJerusalem2000.pdf.

104 See UN Human Rights Council, Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk (13 January 2014) UN Doc A/HRC/25/67, para 23.

105 Jerusalem Municipality, op cit, section 7: “Demographic Balance ‘According to Governmental Decisions’ – This goal, as presented by the municipality and adopted in governmental discussions regarding the matter, seeks to maintain a ratio of 70% Jews and 30% Arabs.”

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  1. The annexation of East Jerusalem, made effective in 1967, was formalised in Israeli law in 1980 with the passing of the “Basic Law: Jerusalem, Capital of Israel,” of constitutional status, envisaging “Jerusalem, complete and united [as] the capital of Israel.”106 This formalisation was condemned as “null and void” by the UN Security Council.107 The culmination of Israel’s annexationist policies to alter the demographic character of the city occurred with the erection of the Annexation Wall, which cemented Israel’s acquisition,108 and illegal annexation,109 of Jerusalem by military force and the coercive displacement of the indigenous Palestinian population, in direct contravention of international law110. As the acquisition of territory by force, as extended by occupation or annexation, cannot vest sovereignty in a belligerent or occupier, the actions taken by Israel in 1948, 1967, and 1980 are ineffectual in vesting Israel with sovereignty over Jerusalem, in particular occupied East Jerusalem.
  2. It is pertinent to give consideration to the Palestinian residents of East Jerusalem, who are not treated in accordance with human dignity, but rather as a demographic challenge by the Israeli authorities. While the State of Palestine is unable to confer citizenship upon residents, Israel refuses to extend similar rights upon Palestinian East Jerusalemites, and instead subjects them to a precarious “permanent residency” status, which may be revoked at any time.111 Moreover, such status may be, and often is, revoked punitively, as part of

106 Knesset, Basic Law: Jerusalem, Capital of Israel, translation available at: https://www.knesset.gov.il/laws/special/eng/basic10_eng.htm.

107 UN Security Council Resolution 478 (20 August 1980) UN Doc S/RES/478.

108 Article 2(4), Charter of the United Nations (adopted 24 October 1945) 1 UNTS XVI.; see also Wall Opinion, para 1; UN Security Council Resolution 2334 (23 December 2014) UN Doc S/RES/2334, preamble.

109 Article 47, Fourth Geneva Convention.

110 See Wall Opinion, para 122: “…the route chosen for the wall gives expression in loco to the illegal measures taken by Israel with regard to Jerusalem and the settlements, as deplored by the Security Council … There is also a risk of further alterations to the demographic composition of the Occupied Palestinian Territory resulting from the construction of the wall inasmuch as it is contributing … to the departure of Palestinian populations from certain areas.”

111 This was introduced by Knesset, Entry into Israel Law (5710/1950), available at: https://www.adalah.org/uploads/oldfiles/Public/files/Discriminatory-Laws-Database/English/40-Entry-into- Israel-Law-1952.pdf.

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unlawful campaigns of collective punishment, under the vague pretext of a “breach of

allegiance” to the State of Israel.112

  1. Israel’s framework of control over East Jerusalem does not, in any way, provide for the

Palestinian pursuit of political, social, and cultural development, nor the vindication of their inalienable rights under international law, and thus is incompatible with their inherent right of self-determination.113 This manifest and prolonged breach of the collective right of Palestinian East Jerusalemites must be used as a basis, in line with Article 21(3) of the Rome Statute, in interpreting the extent of ICC jurisdiction; it is the Israeli authorities who exercise control over the annexed city and are responsible for the ongoing campaign of rights violations and alleged international crimes. Any move to exclude East Jerusalem from Palestinian jurisdiction would improperly contribute to unending Israeli impunity.

  1. Thus, although the State of Palestine is prohibited from physically exercising its authority over the city, this does not compromise its de jure sovereignty or its jurisdiction over the territory.
  1. The Gaza Strip
  2. As noted above, the Gaza Strip has been internationally recognised as an integral part of occupied Palestinian territory, and therefore is part of the overall Palestinian territorial unit.114 However, the PNA, and thus the State of Palestine, does not exercise effective, de facto control over Gaza. That, however, has not extinguished its de jure jurisdiction and

112 See Al-Haq, Punitive Residency Revocation: the Most Recent Tool of Forcible Transfer (17 March 2018), available at: http://www.alhaq.org/advocacy/6257.html.

113 Reference re: Secession of Quebec [1998] 2 R.C.S, at para 126.

114 See The Israeli-Palestinian Interim Agreement (Oslo II) (28 September 1995), available at: http://www.acpr.org.il/publications/books/44-Zero-isr-pal-interim-agreement.pdf, Article XI(1): “The two sides view the West Bank and the Gaza Strip as a single territorial unit”, and Article XVII(1): “In accordance with the DOP, the jurisdiction will cover West Bank and Gaza Strip territory as a single territorial unit …”; see also UN Security Council Resolution 1860 (8 January 2009) UN Doc S/RES/1860, preamble: “Stressing that the Gaza Strip constitutes an integral part of the territory occupied in 1967 and will be a part of the Palestinian state”.

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claim, nor has it suspended obligations under international law to uphold the human rights

of Palestinians in Gaza.
33. The lack of control directly enjoyed by the PNA in Gaza has been well documented by the

Prosecutor,115 and while Israel argues that Gaza is no longer occupied, or has attained a sui generis status,116 the prevailing expert and UN view is that the territory remains occupied by Israel, despite the so-called removal of its illegal settlements from the Strip in 2005.117 As noted by Professor John Dugard in 2007, during his tenure as the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, “[s]tatements by the Government of Israel that the withdrawal ended the occupation of Gaza are grossly inaccurate … In effect, following Israel’s withdrawal, Gaza became a sealed off, imprisoned and occupied territory.”118 Thus, the ability of the PNA to control Gaza is hampered in part by the ongoing closure and measures of collective punishment imposed by Israel with the ultimate goal of rendering Gaza uninhabitable119; as noted by Darcy and Reynolds, “[w]hile events in Gaza have departed from traditional conceptions of warfare and occupation … sufficient clarity is retained when it comes to the effective control exercised by Israel over the Gaza Strip in order to categorize the territory as occupied.”120 As such, it is incorrect to view Gaza as unoccupied territory; the so-called ‘disengagement’ by Israeli forces in 2005 facilitated a new means of Israel’s domination and control,

115 See Request, para 80.
116 See, for example, Elizabeth Samson, ‘Is Gaza Occupied?: Redefining the Status of Gaza under International

Law’ (2010) 25(5) American University Law Review 915.

117 George E Bisharat et al, ‘Israel’s Invasion of Gaza in International Law’ (2009) 38(1) Denver Journal of International Law & Policy 47-51; Shane Darcy and John Reynolds, ‘An Enduring Occupation: The Status of the Gaza Strip from the Perspective of International Humanitarian Law’ (2010) 15(2) Journal of Conflict & Security Law 223-242; Yoram Dinstein, The International Law of Belligerent Occupation (2nd edn, Cambridge University Press, 2009) 851-862.

118 UN Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967 (29 January 2007) UN Doc A/HRC/4/17, para 6.

119 See UN, Gaza “Unliveable”, UN Special Rapporteur for the Situation of Human Rights in the OPT Tells Third Committee (24 October 2018), available at: https://www.un.org/unispal/document/gaza-unliveable-un- special-rapporteur-for-the-situation-of-human-rights-in-the-opt-tells-third-committee-press-release-excerpts/.

120 Darcy and Reynolds, op cit, 243.
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effectively amounting to a “reployment” of military capabilities exercising control of land

borders, airspace, and naval frontiers.121
34. It must be stressed that the partial control, hampered by continued Israeli occupation,

exercised by Hamas within Gaza does not produce a sui generis, quasi-state status; Hamas itself views Gaza as integral to Palestine,122 and rejects any suggestion that its administrative role in Gaza compromises Palestinian territorial integrity. Moreover, regardless of de facto control by Hamas, the PLO has been treated as the “sole legitimate representatives” of the Palestinian people by the League of Arab States,123 Israel,124 the UN General Assembly,125 and a United States federal appeals court.126 This may be observed in practice through the accepted claim by the PNA, controlled by the PLO, over Gaza’s territorial waters, in line with the Convention on the Law of the Sea127, asserting sovereignty over the “territorial sea, its airspace, and its bed and subsoil”.128 Thus, the link between the sovereign claim by the State of Palestine in the West Bank, including East Jerusalem, is fundamentally linked and congruent to that of the Gaza Strip.

121 Bisharat, op cit, 49.
122 See Hamas, Hamas warns against holding Palestinian elections separately (23 October 2019), available at:

https://hamas.ps/en/post/2382/hamas-warns-against-holding-palestinian-elections-separately.

123 League of Arab States, PLO sole legitimate representative of the Palestinian people – LAS Rabat Summit (28 October 1974), available on UN website at: https://www.un.org/unispal/document/auto-insert-194621/; see also Issa Al-Shuaibi, ‘The Development of Palestinian Entity-Consciousness: Part III’ (1980) 9(3) Journal of Palestine Studies 100.

124 Israel Ministry of Foreign Affairs, Israel-PLO Recognition: Exchange of Letters between PM Rabin and Chairman Arafat, available at: https://mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/israel- plo%20recognition%20-%20exchange%20of%20letters%20betwe.aspx.

125 The Assembly altered the designation of “Palestine Liberation Organization” given to the PLO to simply “Palestine”, thereby essentially conflating the two, see UN General Assembly Resolution 43/177 (15 December 1988) UN Doc A/RES.43/177, para 3; note, however, that this does not indicate that the PLO has become synonymous with Palestine as such, but rather is its internationally recognised conduit, see Azarov and Meloni op cit.

126 Universal Cable Productions LLC v Atlantic Speciality Insurance Company (12 July 2019) 9th Circuit, at 29: “Here, the Palestinian Authority is the de jure government”, available at: http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/12/17-56672.pdf.

127 Convention on the Law of the Sea (adopted 10 December 1982, entry into force 16 November 1994).

128 State of Palestine Ministry of Foreign Affairs and Expatriates, Declaration of the State of Palestine regarding its maritime boundaries in accordance with the United Nations Convention on Law of the Sea, available at: https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/PSE_Deposit_09-2019.pdf.

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  1. The PNA’s de jure jurisdictional claim over the Gaza Strip is further strengthened by the direct applicability of international human rights treaties acceded to by the State of Palestine therein. This has been affirmed by the Commission of Inquiry,129 and was seemingly taken as self-evident by CERD in its December 2019 jurisdictional decision.130 This has been further confirmed by other bodies such as CEDAW131 and CRC132. Indeed, the Commission of Inquiry “consider[ed] Hamas to be obligated to respect, protect and fulfil human rights” based on the accessions to various treaties by the State of Palestine,133 indicating that Hamas, as the de facto authorities in Gaza, are bound by obligations of the State of Palestine. Thus, there does not appear to be any general bar to the imposition of international statutory obligations upon either the Gaza Strip, or Hamas; instead, the State of Palestine is demonstrably capable of imposing such obligations.
  2. Moreover, within the specific framework of the Rome Statute, there does not appear to be any prohibition on the extension of the Court’s jurisdiction to the Gaza Strip, despite de facto control by Hamas. In the context of the occupied Georgian territory, referred to as South Ossetia, the PTC ruled that regardless of the lack of effective control by Georgia over that territory, “South Ossetia is to be considered as part of Georgia, as it is generally not considered an independent State.”134 In light of this decision, in a context wherein a separate State, although its legitimacy is questionable, had been declared, it would be inconsistent for the Court to deny the applicability of its jurisdictional reach due to the lack of de facto control over Gaza by the State of Palestine. Gaza is not the subject of an adverse separatist

129 See Commission of Inquiry Report, para 759, 768. 130 See throughout, CERD Decision.
131 CEDAW, op cit, para 9.
132 CRC, op cit, para 4.

133 Commission of Inquiry Report, para 759.

134 ICC, Situation in Georgia: Decision on the Prosecutor’s request for authorization of an investigation (27 January 2016) ICC-01/15, para 6.

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claim, but rather functions and has been recognised as an integral component of the

occupied Palestinian territory.
37. Similarly, as the Court has previously made implicit designations on the competing claims

to legitimacy of opposing authorities,135 it is respectfully submitted that the Court should be satisfied with the State of Palestine’s internationally recognised de jure status as the competent authority over the entirety of the occupied Palestinian territory, and should not be deterred by its lack of de facto control. The Court’s sole consideration vis-à-vis the competency of Palestinian authorities to submit jurisdiction to the Court begins and ends with positions “clearly designated by the [de jure] State.”136 The implications of an alternative ruling would be a consolidation of the fragmentation of the Palestinian people; should the Gaza Strip be excluded from the remit of the Prosecutor’s investigation, the Court would further entrench the arbitrary fragmentation, imposed by Israel’s occupation machinery137, facilitating the creation and maintenance of a regime of impunity shielding accountability for the commission of international crimes.

  1. Conclusion
  2. Should the Court deem it necessary to make a jurisdictional ruling, under the auspices of Article 19(3), at this stage, it is respectfully submitted that it should rule that the entirety of the occupied Palestinian territory constitutes the legitimate territory of the State of Palestine, and is subject to the Court’s jurisdiction. While I am mindful of the importance and sensitivity of the issues presently before the Court to the objections of a sovereign State, however in this instance it has become abundantly clear that the broader legal considerations of extending legal accountability for international crimes should be given priority.

135 See ICC, Situation in Libya in the Case of the Prosecutor v Said Al-Islam Gaddafi: Decision on the Prosecutor’s “Request for an order directing the Registrar to transmit the request for arrest and surrender to Mr al-‘Ajami AL-ATIRI, Commander of the Abu0Bakr Al Siddiq Battalion in Zintan, Libya” (21 November 2016) ICC-01/11-1/11, para 15.

136 Ibid., para 16.
137 See Richard Falk, ‘Israel’s Politics of Fragmentation’ (10 October 2010) Global Justice in the 21st Century,

available at: https://richardfalk.wordpress.com/2013/10/10/israels-politics-of-fragmentation/.
No. ICC-01/18 27/29 16 March 2020

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  1. Once more, it is necessary to stress that the presence of disputed borders, or portions of the occupied Palestinian territory wherein the State of Palestine does not exercise effective control, does not preclude Palestine, nor the Court, from exercising full jurisdiction therein. Moreover, as outlined above, there is no valid legal or factual barrier that precludes such a finding of jurisdiction; indeed, it is submitted that the object and purpose of the Rome Statute, the underlying goals of the Court, internationally recognised human rights principles and norms, and the promotion of global justice necessitate that an investigation be immediately opened, encompassing the entirety of the occupied Palestinian territory.
  2. The Court is not bound, nor does it enjoy the authority, to make a substantive ruling as to the statehood of Palestine; such a ruling, it is submitted, would be ultra vires and outside of the Court’s role with respect to international criminal justice. Instead, the Court should recognise what is widely accepted since Palestine acceded to the Rome Statute, and was recognised as a non-Member State by the UN General Assembly: Palestine, if nothing else, is a full and valid State Party of the Rome Statute, and as such is entitled, and fully bound by the instrument. In this regard, the substantive statehood of Palestine, which has been affirmed and reaffirmed, as outlined above, is ancillary.
  3. If the Court deems it necessary to provide a ruling on jurisdiction at this stage, therefore, it is submitted that this is the decision the Court must reach. As rightly noted by Professor John Quigley in his amicus curiae submission, dated 3 March 2020, “[t]he issue of Palestine statehood is a legal matter unrelated to political considerations. To say that Palestine is a state is to take no position on the equities of the Israel-Palestine situation. It implies no position on how the two parties should resolve their differences.”138 The issue before the Court is a legal one, and as such must be considered in light of established legal principles, which clearly indicate that the State of Palestine enjoys the status of a State within the

138 John Quigley, Situation in the State of Palestine: Submissions Pursuant to Rule 103 (John Quigley) (3 March 2020) ICC-01/18, para 59.

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No. ICC-01/18 28/29 16 March 2020

context of the Rome Statute, and has the authority and competence to provide the Court with jurisdiction over the entirety of its territory, defined as the West Bank, including East Jerusalem, and the Gaza Strip, in line with the provisions of Article 12(3).

Professor Richard Falk

Dated this 16th day of March, 2020 At Istanbul, Turkey

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No. ICC-01/18 29/29 16 March 2020

 

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Respecting International Law: A Practical Argument

20 Feb

[Prefatory Note: International law, as so much else of value, has fallen on hard times,

violated and ignored, where applicable and needed. Although this is a deplorable state of affairs as the planet burns and vulnerable people suffer from ecological hazards and predatory geopolitics, it is the time to heighten struggle, and not sit home in despair. This essay in a slightly modified form was written at the request of Fikir Turu, an online source of commentary operating from Turkey, and published in Turkish. An English version was also published in Transcend Media Service, TMS, 17 February 2020.] 

 

Respecting International Law: A Practical Argument

International law disappoints in so many ways, making it easy to overlook why, despite its flaws, it remains valuable and indeed vital for human wellbeing. I put here to one side its usefulness for managing the touristic, trade and investment, maritime, and networking dimensions of international and transnational life, which most of us take for granted until something goes wrong. And I also take note of the inability of international law to fulfill the hopes of idealists who suppose that law on its own can banish war or ensure that international disputes are resolved by applying law rather than through power leveraging. If we are attentive to current events, as the media reports war/peace issues we would quickly conclude that invoking international law in these high profile settings is to be out of touch with how sovereign states go about pursuing their most important economic and political interests, which in areas touching on security is by trusting their military capabilities and alliance relations, and not by believing that as long as their actions and policies stay on the right side of the law, they have nothing to worry about.

 

Against such a background, my assessment suggests that international law is more relevant even in war/peace settings than what the men who still make most of the big foreign policy decisions realize. A major point here is a reflection of the global turn toward governments led by anti-democratic political figures who gained power by winning free elections. The voting public in many leading countries seems ready to support governments that do away with civil liberties, the protection of basic human rights, and even move to subvert the independence of the judiciary and legislative branches of government. Some of the policies of such autocratic leaders violate fundamental norms of international law as when a minority is persecuted by ethnic cleansing or genocidal policies, or in more limited ways by denying rights of free expression to dissenting voices in the media, among opposition leaders in and out of government, and at universities.

 

In such circumstances, it remains useful for supporters of true freedom to be able to appeal to international law as an authoritative yardstick by which to assess the government behavior alleged as being abusive. In this regard, the recourse of Gambia to the International Court of Justice to challenge the genocide of the Rohingya by the government of Myanmar. Similarly, the current effort of Palestine to persuade the International Criminal Court to investigate alleged crimes against humanity committed by Israel against the Palestinian people is illustrative of the political significance of international law even if unable to regulate the offending behavior. These are both high profile instances of apparent international crimes that could otherwise be hidden behind the heavy curtain of national sovereignty. The guidelines of international law are crucial in raising the voices of public opinion and even some government on such issues of moral salience in an effective manner, and essential to gain access to international institutions in some circumstances of state crime so as to challenge, and at least document, criminality in an influential manner.

 

By pointing out such options, it is not meant to suggest that the leadership in Myanmar or Israel will necessarily repudiate their past policies, or alter their abusive behavior. What is achieved is some lessening of legitimacy, and this may matter enough to moderate and deter, if not transform behavior. More liberally inclined governments may be less likely to enter favorable relationships or agree to participate in cultural or sporting events with gross offenders of human rights and basic legal norms. These kinds of subtle acknowledgements of wrongdoing do have an impact, although rarely acknowledged, until some momentous change unexpectedly takes place, as for example when South African apartheid submitted to international pressure and dismantled apartheid. An interesting legal example occurred back in the 1980s when the United States was mining the harbors of Nicaragua to exert unlawful pressures on a Marxist-oriented government in control of this tiny country. The Nicaraguan Government could not hope to challenge by force American policies that seemed to violate the rule of international law that condemned all uses of international force other than in carefully defined instances of self-defense, but it did have recourse to the International Court of Justice due to an obscure treaty that conferred such an option if a dispute between the two governments could not be settled by direct negotiations. The U.S. refused to participate in such a judicial proceeding, but despite this, the World Court in The Hague accepted the case, and a majority of its judges agreed that Nicaragua had a convincing legal grievance, and so declared. The U.S. judge on the highest UN judicial tribunal defended the American policies, and Washington denounced the decision. And yet, a few months later the U.S. stopped mining Nicaragua’s harbors, and in effect, covertly complied with the decision upholding the applicability of international law.

 

Even Myanmar mounts its strongest possible defense by hiring a team of Western international law experts to present its case. Israeli strategists and think tanks warn the government that attacks on the legitimacy of Israel, that is undertakings complaining about its flagrant lawlessness, are bigger threats to Israeli security than is the Palestinian armed struggle. Having law and morality on one’s side has proved a bigger overall asset in violent political conflicts since 1945 than dominating the battlefield. The United States lost the war in Vietnam during the 1960s despite controlling the conventional military dimensions of the conflict, as did the Soviet Union when it intervened more than a decade later in Afghanistan. The major governments in the world are slow to learn from this kind of failure because militarism is embedded in their governing DNA. This reflects the outmoded faith in military superiority as the principal engine of history as well as the bedrock of national security. What is overlooked is that ever since World War II, people not armies have won the characteristic conflicts of the last 75 years, and their highest aspirations for self-determination and independent political statehood have been aligned with international law. In this sense, large states, as well as small and medium states, would themselves be much better off if their policies in the war/peace and security areas adhered to international law guidelines rather than followed the discretionary dictates and spending priorities of hard power realists. To the extent this assessment of the changed role of power in international relations is correct, China stands out as comprehending the benefits of embracing soft power realism, by way of trade, investment, and clever diplomacy is the manner to expand influence and raise stature in the 21st century. In this fundamental sense, international law, which can be conceived of as aa soft power calculus in relation to the use of force, has an untested potential to guide governments and their citizens toward a peaceful, prosperous, and ecologically sustainable future, but only if militarist myths and military/industrial/media complexes are discarded.

 

International law also provides the weak and vulnerable with a means to build support for their struggles against abusive uses of state power, including finding law-related ways to resist autocratic leaders who rely on regressive ‘lawfare’ to stifle political dissent and suppress freedom of expression. For instance, those victimized can appeal their cases to special rapporteurs of the UN Human Rights Council who can give political visibility, moral/legal credibility, and sometimes exert effective pressure on governments alleged to be violating basic rights. The elected autocrat of the Philippines, Rodrigo Duterte, uses his manipulation of the legislative and judicial branches of government to frame and imprison political opponents and dissenters, while solidarity initiatives respond by invoking international law standards and procedures to challenge such unlawful behavior, in effect, recourse to progressive lawfare tactics.

 

Finally, civil society activism formulates its agendas, and builds its support, by illuminating the lawlessness of governments, especially in relation to geopolitical actors that enjoy effective impunity under international law. There are many such uses of international law, going back to the tribunals on the Vietnam War organized in the late 1960s with the backing of Bertrand Russell, passing legal judgment on the violations of Vietnamese sovereignty by American-led military intervention. Another notable example was the Iraq War Tribunal of 2005 held in Istanbul, bringing together legal experts and moral/cultural personalities to pass judgment on the spurious claims that the U.S./UK military attack and occupation of Iraq were consistent with fundamental norms of international criminal law. Such a legal proceeding did not end the occupation but it strengthened the political will of those who opposed such policies as well as providing a documentary record of geopolitical lawlessness that could not be compiled if an international legal framework did not exist and enjoy the formal endorsement of those states whose behavior was being judged.

 

In the end, we can and should still lament the shortcomings of international law, but if we seek an international order that respects rights and is more peaceful, it is vital to appreciate the present and potential role of international law. It can offer constructive policy guidelines for policymakers and leaders, better aligning foreign policy with national interests given the increasing limits on the utility of military force under contemporary condition. It also allows civil society activism to ground their solidarity initiatives on a foundation of international law rather than on mere political passion, and can serve to deter some governments from pursuing policies that violate international human standards and would likely weaken their reputation as responsible members of world society. The work of some international NGOs, such as Amnesty International and Human Rights Watch, not only depends on the existence of legal standards, but shows that many powerful governments care enough about their reputations at home and abroad to curb their lawlessness if confronted by prospects of exposure. Of course, it would be wrong to expect too much from a reliance on international law in this period when even those states that claim the legitimacy of political democracy are choosing leaderships and adopting policies that defy such values and practices. Many of us are discovering that procedural democracy, as principally expressed by free elections and independent political parties, offers little assurance that the political winners will adhere to the rule of law, that is, the norms and institutional arrangements of substantive democracy, when in positions of political authority. Such disillusionment is accentuated by the growing evidence that such leaders retain their popularity with the citizenry even when they are unscrupulous lawbreakers. And, of course, less political and moral friction is present when the laws being twisted or broken pertain to foreign policy. International law is not reinforced at this point by strong populist expectations of compliance, although rule of law considerations may be invoked when a state is targeted for intervention or sanctions.

 

 

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On the Eve of the Release of Trump’s ‘Deal of the Century

27 Jan

On the Eve of the Release of Trump’s ‘Deal of the Century

 

[ Based on CORREIO BRAZILIENSE, Jan. 28, 2020, Interview by Rodrigo Craveiro on Trump’s ‘Deal of the Century’]

1– Why are Palestinian leaders rejecting to talk with president Trump about this new peace plan?

Trump made so many important controversial and major concessions to Israel on issues that prior pro-Israeli US presidents refused to do. These unilateral giveaways included moving the US Embassy to Jerusalem in defiance of UN agreement to resolve this issue by negotiations between the parties; assert that the establishment of settlements on Occupied Palestine were legal despite the near universal agreement that all settlements are unlawful if established on Occupied Palestine; recognize Israeli sovereignty over the Golan Heights, which Israel acquired by force in the 1967 War and by unanimous  Security Council Resolution 242 was ordered to withdraw from. In effect, it became obvious to even the most weak Palestinian leadership that such a one-sided approach to resolving the conflict was totally unacceptable to the Palestinian people, and had no credible claim to be seeking a genuine compromise. What was known through leaks prior to the release of Trump’s plan confirms this impression, and explains why even the Palestinian Authority is reluctant to give any credibility whatsoever to this diplomatic charade being orchestrated by the White House..

2– Do you believe the peace plan has failed on delivery? Why?

For the reasons given, the peace plan is substantially an imposed Israeli victory, not in any reasonable way the basis for reaching a political compromise. In this regard, it is  manifestly unacceptable to the Palestinian people even if economic incentives for political surrender are being offered. If such a plan were to be imposed by force it would not bring peace, but harden the existing harsh, apartheid regime by which Israel controls Palestinian resistance activity and collectively punishes the Palestinian people as a whole. To call such a plan ‘a deal,’ much less ‘the deal of the century’ is outrageous. Better to be known as ‘the farce of the century.

 

3– What are the main criticism by you of this new peace plan?

It is unfair to the Palestinian people and completely ignores their fundamental rights, and overlooks the historical reality of Palestine having been a predominantly Arab country for centuries. As explained, what is offered is one-sided, and promises the Palestinian people a better life materially in exchange for abandoning their political agenda, and legal entitlements. Instead it is asking the Palestinians to accept a position of permanent victimization on a larger, but similar scale to the realities faced by the people of Gaza since the Israeli ‘disengagement’ plan of 2005 was implemented. That Sharon plan for Gaza involved complete border control and total vulnerability to Israel’s frequent uses of force. The Trump proposed deal amount to the Gazaization of all of Occupied Palestine, and that is not an acceptable vision of Palestine’s future.

4– Do you think this new peace plan was built to make concessions to israeli instead of Palestinian people?

 

There seems to me to be no doubt that inducing the Palestinians to reject the Trump initiative should have been anticipated, but whether that was the idea from the outset, is hard to tell. If the Israelis accept the Trump Plan as the basis for negotiations, the Palestinian refusal would be portrayed as rejecting an opportunity for peace, and an opting for war and terrorism. Along this line of reasoning the whole diplomatic fuss is nothing more than a public relations scheme to help Israel gain respect in international public opinion.

 

The Trump plan seems designed to declare a victory disguised as a diplomatic accommodation, trading Palestinian political defeat for some promised promise of improved living standards. Having struggled for more than a century to keep their Palestinian homeland from being completely taken over by Israel, there is no reason that their defeat can be ratified by accepting such a humiliating outcome to their long struggle. The Trump plan will fail, and deserves this fate. It is unjust and wrongly neglects Palestinian rights under international law.

 

A final observation—in the post-colonial era a mobilized people will not give up their insistence on exercising their right of self-determination, which can be argued to create a legal foundation for Palestinian claims of statehood without any need for negotiations. If Israel is viewed, despite the historical complexity of its background and the Jewish claim of biblical entitlement, as a settler colonial state, then a Palestinian right of secession exists at least with respect to that part of Palestine occupied since 1967.

 

 

 

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Facing the Global Crisis

16 Jan

[Prefatory Note: The post below is a somewhat amplified version of an interview with C. J. Polychroniou, journalist and professor of political economy at West Chester University, which was published on January 7, 2020 in the online journal, Global Policy. As the interview was conducted in December 2019, it fails to address the various disruptive consequences of the assassination of Qasem Soleimani, including the violation of Iraqi sovereignty, Baghdad being the site of the drone attack, as well as the risks of war arising from an escalating tit-for-tat cycle of actions and reactions. Given growing tensions between the interconnectedness of the world and the state-centric character of international law, including contradictions between totalizing and disregarding territorial sovereignty, state-centric world order is being increasingly marginalized by geopolitical behavior that both generates and suppresses transnational political violence. A normative crisis with structural implications exists, and is not even being widely appreciated much less adequately addressed. The continuing disregard of this crisis adds to grave risks of aa catastrophic future for humanity, with severe spillover to the natural surroundings shared with non-human species.]

 

Facing the Global Crisis

 Q1. I want to start this interview on the state of global affairs near the end of the second decade of the 21st century by moving from the abstract to the concrete. To begin with, it’s regarded as axiomatic that the postwar international liberal order is fracturing and that we are at the same time in the midst of a geopolitical transition where the most prominent characteristic seems to be the decline of the United States as a global superpower. With that in mind, can you offer us a panoramic perspective on the contemporary state of global affairs? What do you consider to be the primary changes under way, and the emerging challenges and threats to global peace and stability?

 Response: There are many crosscutting tendencies now evident at the global level. At the very time when globalizing challenges are intensifying, the mechanisms available for regional and global cooperation are becoming dangerously less effective. The failure to address climate change, so clearly in the global public interest, is emblematic of a dysfunctional world order system. This failure can be further delineated by reference to two distinct, yet interrelated developments. The first characterized by a vacuum in global leadership, which reflects both the overall decline of the United States as well as its explicit renunciation of such a role by the Trump presidency. Trump proudly proclaims that his political agenda is exclusively dedicated to the promotion of American national interests, declaring defiantly he was elected president of the United States, and not of the world. The second broader development is the rise of autocrats in almost every important sovereign state, whether by popular will or through imposed rule, resulting in the affirmation of ultra-nationalist approaches to foreign policy, given ideological intensity by chauvinistic and ethnic hostility toward migrants and internal minorities. This kind of exclusionary statism contributes to the emergence of what might be called ‘global Trumpism’ further obstructing global problem-solving, shared solutions to common problems, and global expressions of empathy for human suffering. A discernable effect of these two dimensions of world order is to diminish the relevance and authority of the United Nations and of international law, as well as exhibiting a decline in respect for standards of international human rights and a disturbing indifference to global warming and other global scale challenges, including toward maintaining biodiversity and upholding the stability of major global rainforests.

 

Overall, what has been emerging globally is a reinvigoration of the seventeenth century Westphalian regional system of sovereign states that arose in Europe after more than a century of devastating religious wars, but under vastly different conditions of connectivity that now pose dire threats to maintaining minimum world order and to the wellbeing of peoples throughout the world. Among these differences are the dependence upon responsible internal behavior by governing processes at all levels of social interaction in an era of growing ecological interdependence. The tolerance of fires in the Amazon rainforest by the Brazilian government, supposedly for the sake of economic growth, by indulging the interests of agrobusiness and logging, endangers a vital global source of biodiversity as well as depletes essential carbon capturing capabilities of this vast forest area, yet there is no way under existing international norms to challenge Brazil’s sovereign prerogative to set its own policy agenda, however irresponsible with respect to its own ecological future, as well as that of its region and the world.  

 

At the same time, there has emerged doctrine and technology that defies territorial constraints, and gives rise to contradictory pressures that subvert the traditional capabilities of states to uphold national security on the basis of territorial defense. On the one side, transnational extremism and criminality exposes the symbolic and material vulnerability of the most militarily powerful states as the United States discovered on 9/11 when the World Trade Center and Pentagon were allegedly attacked by a small group of unarmed individuals. Added to this are threats to all people from hacking and surveillance technologies that are not subject to territorial regulation. Responses by way of retaliatory strikes or covert operations directed at the supposed extraterritorial source of these attacks and threats, according to a global mandate associated with counterterrorist warfare and transnational law enforcement generate new patterns of lawlessness in the conduct of international relations. Technological and doctrinal innovations associated with the use of precision guided missiles, cyberspace, and pilotless drones, as well as satellite surveillance are producing new conceptions and experiences of boundaryless war zones. The world is becoming a battlefield for both geopolitical actors and a variety of non-state actors in a series of unresolved transnational struggles and undertakings. Additionally, there are opening new uncertain frontiers for 21st century warfare involving cyber assaults of various kinds, evidently already tested and used by the U.S. and Israel in their efforts to destabilize Iran, as well as new initiatives by a few states to militarize space in ways that seem capable of threatening any society on the face of the planet with instant and total devastation. One salient feature of these developments is the unacknowledged significance of neither adversary being a Westphalian sovereign state as generally understood by international relations theory and practice, while ‘political realism,’ which remains largely unchallenged, is more and more out of touch with these political realities subverting statst world order.

 

Under analogous pressures, the world economy is also fragmenting and seeking a reterritorialization of trade and investment, not only behaviorally but doctrinally. Trump’s transactional mode of operations challenges the rule-governed global system established after World War II, which relied on the Bretton Woods institutions and the World Trade Organization. The economic dimensions of resurgent nationalism also give rise to trade tensions, with real prospects of major trade wars, reminding expert observers of the ‘beggar-thy-neighbor’ atmosphere in the early 1930s that gave rise to the Great Depression. Underneath this reterritorialized approach to political economy seems to be what amounts to a mostly silent revolt against neoliberal globalization, and its encouragement of transnational trade and investments based on market-based opportunities, as guided by the transnational efficiency of capital and openness of national markets rather than the wellbeing of people, including environmental protection. A major source of dissatisfaction with traditional politics in democratic societies seems associated with increasing economic inequality, causing stagnation, or worse, of middle and lower class living standards, while producing incredible accumulations of wealth at the very apex of society. These trends have unleashed an enraged populist assault on establishment institutions, including traditional political parties, being blamed for enriching upper elites while suppressing the wellbeing of almost entire societies, with an astonishing 99% being left behind. In the American setting, the left/right expression of this new classism is reflected in the Trump proto-fascist base and the Sanders mobilization among youth and disaffected constituencies.

 

In this downward global spiral, additional negative factors are associated with poor management of ending the Cold War, and the accompanying collapse of the Soviet Union. I would point to three principal negative impacts: (1) the failure of the United States as triumphant global leader to seize the opportunity during the 1990s to move the world toward greater peace, justice, and prosperity by strengthening the UN, by reallocating resources from defense to civilian infrastructure, and by initiating denuclearization and demilitarizing policies regionally and worldwide; (2) the degree to which the Soviet collapse led to a world economic order without ideological choices for political actors (‘there is no alternative’ mentality). This pushed the logic of capitalism toward the kind of inhumane extremes that had existed in the early stages of the Industrial Revolution. As long as socialism was associated with Soviet leadership it offered an ideological alternative to alienated segments of society, which created strong political incentives in the West to exhibit ethical concerns for human wellbeing, and social protection frameworks moderating the cruelty of minimally regulated market forces; in effect, for its own sake capitalism needed the rivalry with socialism to maintain an ethically acceptable ideological composure; (3) the sudden withdrawal of Soviet balancing influence in several regions of the world, especially the Middle East, led to order-maintaining cycles of oppressive patterns of governance, U.S. regime changing interventions, and political turmoil and prolonged strife causing massive suffering, famine, and devastation.

 

This combination of domestic authoritarianism, transnational conflict configuratons, and state-centric foreign policy is inclining the world toward ecological catastrophe and geopolitical uncertainty, even chaos. This pattern is accentuated by world economic orientations that are oblivious to human and global interests, while slanting national interests toward the ultra-rich. In effect, the political future for formerly leading democratic states is now more accurately described as a mixture of autocracy and plutocracy with fascist overtones of the strong leader and the stereotyping of ‘the other’ as an enemy to be excluded or destroyed.

 

One symptom of these implosive developments is to call attention to the altered role of the United States in this overall conjuncture of historical forces. On the one side, is the reality of U.S. decline, accentuated by the behavior of Trump since 2016 and the rise of China, which reflects the impact of this impulsive and anti-globalist leader and national mood, but also exhibits some longer deeper trends that transcend his demagogic impact. The most important of these is the failure to learn from the reduced effectiveness of military force with respect to the pursuit of foreign policy goals, given changes in the nature of political power and international status, especially in relations between the West and non-West. Costly interventions in Vietnam, Afghanistan, and Iraq have all ended in political failure, despite U.S. military and battlefield dominance and a strong political commitment to the mission. The U.S. reaction has been to reframe tactics rather than to appreciate the enhanced capabilities in the post-colonial world of militarily vulnerable countries to mobilize prolonged and eventually effective resistance to interventions from the West. Such reframing has led to the repetition of failed interventions in new contexts. In this narrow regard, Trump’s seeming repudiation of regime-changing wars was and is more realistic than the Pentagon’s tendency to return to the drawing counterinsurgency and counterterrorist drawing boards to figure out how to do the job better next time.

 

Yet Trump’s militarism is evident in other forms, including seeking to extend military frontiers to outer space, by boasts about investing in producing the most powerful military machine in human history, and by the reckless war-mongering diplomacy toward Iran. In this respect, the U.S. not only is increasing risks of global catastrophe, but also inadvertently helping its international rivals to gain relative economic and diplomatic advantages. A crucial explanation of America’s likely continuing decline results from two refusals: first, a recognition of the neutralization of military power among major states by the mutually destructive character of warfare and secondly, an appreciation of the nature of asymmetric conflicts resulting from the rising capabilities of national resistance frustrating, and generally defeating, what had once been relatively routine and cost-effective colonial and imperial operations.

 

Another source of decline is that the kind of confrontations that existed during the Cold War no longer seems to exert nearly as much influence on security dimensions of world order as previously. Most European states feel less need for the American nuclear umbrella and the safety afforded by close alliance relations, which translates into reduced U.S. influence. This shift can be observed by the degree to which most states currently entrust their defensive security needs to national capabilities, somewhat marginalizing alliances that had been formally identified with U.S. leadership. In this regard, the bipolar and unipolar conceptions of world order have been superseded by both multipolarity and statism in the dynamic restructuring of world order since the collapse of the Soviet Union and the rise of China.

 

The profile of American decline, with respect to the international policy agenda could be rather abruptly altered, if not reversed, by an internationalist post-Trump foreign policy. This would be particularly evident, in all likelihood, with respect to reaffirming cooperative efforts regarding climate change, reviving the 2015 Paris Agreement, and calling for a more obligatory approach to international regulatory arrangements. Of course, a revived American bid for global leadership would be further exhibited by certain foreign policy moves such as seeking balance in addressing Israel/Palestine relations, lifting economic sanctions from such countries as Cuba, Venezuela, and Zimbabwe, renewing adherence to the JCPOA (Nuclear Agreement) with Iran, and urgent calls for strengthening the role and relevance of the United Nations and respect for a global rule of law reconfigured to take account of the transnational features of the digital age with its connectivities and networks joining non-state actors.

 

In a sense, the assessment and contours of American decline, reflective of so many factors, will become clearer after the 2020 elections. If Trump prevails, the decline thesis will be confirmed. If a centrist Democrat, say Biden, prevails, it will likely create a sense of relief internationally, along with a temporary suspension of doubt about the reality of U.S. decline, but will not end the credibility of the longer run decline hypothesis as a Democratic Party president, such as Biden, will not challenge the Pentagon budget or the militarism that underpins American policy for the past 75 years. If, as now seems highly unlikely, the Democrats nominate a progressive candidate, say Sanders or Warren, and (s)he is able to gain enough support in Congress, the trends pointing to further decline might not only be suspended, but possibly reversed. Addressing inequality arising from the plutocratic allocation of benefits resulting from neoliberal globalization and undoing the excessive reliance on military approaches to foreign policy are the only two paths leading to a sustainable renewal of American global leadership and prospects for a benevolent national future.     

 

 

 

Q2. Do you detect any similarities between the current global geopolitical condition and that of the era of imperial rivalries prior to the outbreak of World War I?

 Response: The imperial rivalries, at the root of the stumble into major warfare, were much more overt in the period preceding World War I than is the case today. Now imperial strategies are more disguised by soft power expansionism as is the case with China or geopolitical security arrangements and normative claims as is the American approach, but the possibility of an unwanted escalation in areas of strategic interaction are present, especially in areas surrounding China. Confrontations and crises can be anticipated in coming years, and without skillful diplomacy a war could result that could be more destructive and transformative of world order than was World War I.

 

There is also the possibility of hegemonic rivalry producing a major war in the Middle East, as between Saudi Arabia, Israel, and the United States on one side and Iran and Russia on the other side. The Syrian War prefigured on a national scale such hegemonic rivalry that could now recur on a regional scale. A more optimistic interpretation of developments in the Middle East is to suggest that the stability of the Cold War era might soon reemerge in light of Russian reengagement, which could restore the balance imposed earlier, and seems preferable to the turmoil and confrontations of the last 25 years. It would be prudent to take note of the World War I context to remind political leaders that they risk unwanted sequences of events if promoting aggressive challenges to the established order in regional or global settings. Yet the killing of General Qasem Soleimani in early January 2020 came close to setting off a chain reaction of escalating violent incidents that could have ended in a major war between Iran and the United States of intensity and indefinite scope.

 

Of course, triggering conditions prior to World War I were concentrated in Europe, whereas now it could be argued that the most dangerous situations are either geographically concentrated in the Middle East or in a variety of regional circumstances where coercive diplomacy could trigger an unintended war either  on the Korean Peninsula or in relation to China where interests and ambitions collide in the Western Pacific and South China Sea.

 

Graham Allison has written a widely discussed book, Destined for War: Can America and China Escape the Thucydides Trap?(2017), which argues that throughout history when the dominance of a state is challenged by a rising power a major war has frequently resulted to establish geopolitical ranking. Of course, circumstances have changed drastically since the time of Thucydides, due to the possession of nuclear weapons on both sides, a fact that is likely to encourage geopolitical caution as risks of mutual catastrophe are quite evident. At the same time complacency is not warranted as governments have not changed their reliance on threats and bluffs to achieve their goals, and the possibility of miscalculation is present as antagonisms climb escalation ladders.

 

More broadly, the existence of nuclear weapons, their deployment, and doctrines leading to their use in certain situations create conditions that are very different than what existed in Europe more than a century ago. Yet there is one rather frightening similarity. Threat diplomacy tends to produce conflict spirals that can produce wars based on misperception and miscalculation, as well as accident, rogue behavior, and pathological leadership. In other words, the world as now  constituted, as occurred in 1914, stumble into an unwanted war, and this time with casualties, devastation, and unanticipated side effects occurring on a far greater scale.

 

Finally, there were no serious ecological issues confronting the world in 1914 as there are at present. Any war fought with nuclear weapons can alter the weather for up to ten years in disastrous ways. There is the fear validated by careful scholarly study that ‘a nuclear famine’ could be produced by stagnant clouds of smoke that would deprive the earth of the sunlight needed for agriculture for a period of years. In other words, the consequences of a major war are so much more serious that its avoidance should be a top priority of any responsible leader. Yet, with so many irresponsible leaders, typified by Donald Trump, the rationality of caution and that would seem to prevent large scale war may not be sufficient to avoid its occurrence. Also, the mobilization of resources and the focus of attention on an ongoing war, or even its threat, would be so occupying as almost certainly to preclude efforts, however urgent, to address global warming and other ecological challenges.

 

Q3. Given that the historical conditions and factors that gave rise to Cold War policies and institutions have vanished, what purpose does NATO serve today?

 

Response: Although the conditions that explained the formation and persistence of NATO were overcome by the collapse of the Berlin Wall in 1989, and of the Soviet Union a few years later, NATO remained useful to some of its members for several reasons. For the United States, it kept the U.S. engaged in Europe, and sustained its role as alliance leader. For the major European powers, it represented a security guaranty in the event of a revived Russian threat, and lessened internal pressures to develop expensive European military capabilities that did not depend on American participation. The Kosovo War in 1999 displayed a European consensus to transform NATO into an intra-European peace force, while the Libyan War of 2011 displayed a misleading willingness to manipulate the UN into authorizing NATO to engage in a regime-changing out of area military intervention that not only weakened the legitimacy of the post-Cold War UN and harmed Libya, but also understandably eroded trust in UN procedures on the part of Russia and China that had been persuaded not to oppose a decision at the Security Council for a strictly limited humanitarian intervention but not for NATO sponsored regime change.

 

The NATO alliance should be disbanded in the interest of world peace and stability. Its only real function since 1989 has been to further the geopolitical goals of the United States, and to a lesser extent, France and the UK. The persistence of NATO after its Cold War rationalization was undercut exemplifies the refusal of the West to make the structural adjustments that could have expressed an intention to make a transition from a pre-war environment of strategic confrontation that characterized the Cold War to a post-war atmosphere of dealignment and demilitarization. Had such a transition occurred, or even been attempted, we would now most likely be living in more positive historical circumstances with attention to the real economic, political, and ecological challenges to human wellbeing now and in the future being addressed. We would not need the awakening alarms being set off by a 16 year old Swedish girl!   

 

Q4. Trump’s foreign policy towards the Middle East is unabashedly pro-Israel, while also supportive of Erdogan’s grand vision for Turkey and the Arab world. Can you explain for us this apparent anomaly?

 

Response: It may be intellectually satisfying to give a coherent spin to Trump’s seemingly antagonistic policies in the Middle East, but I feel it conveys a false sense of plan and strategy beyond the play of personality and ad hoc circumstance. The most that can be claimed it that there is a kind of hierarchy in arranging American foreign policies priorities, yet overall, lacking any sense of regional grand strategy. At the top of the Trump policy pyramid seem to be upholding the two ‘special relationships’ with Israel, first, and Saudi Arabia, second. Turkey is somewhat supported because of the seeming personal rapport between Erdogan and Trump, and partly also for reasons of continuity of alignment and economic trade relations. Iran is a perfect regional enemy for the United States, which helps us understand why it have been demonized and subjected to crippling sanctions and war threats for the past 40 years. Iran is antagonistic to Saudi ambitions to assert its regional hegemony and to Israel because of its pro-Palestinian, anti-Zionist stance, and not a trading partner or strategic ally with the United States ever since the revolutionary overthrow of the Shah in 1979. Besides, Iran as the leading Shi’a state in the region is a sectarian foil for the Gulf/Egyptian Sunni affinities. Besides, Trump’s insistence on repudiating Obama’s initiatives in the region led to the American withdrawal from the Nuclear Program Agreement negotiated in 2015 (JCPOA, that is, Joint Comprehensive Program of Action), has led to the collapse of an agreement that seemed a breakthrough for peace at the time. This anti-Iran agenda is being carried forward at considerable risk and expense, as well as producing mass hardship for the Iranian people over a period of many decades.

 

Although Trump campaigned on a pledge of disengagement from senseless regime-changing interventions of the past in the Middle East, especially the attack on and occupation of Iraq since 2003, it has been a difficult policy to implement, especially in relation to Iran, and to some extent Syria. This seems to reflect\ American deep state resistance to all demilitarizing moves in the Middle East for strategic reasons, as well as Trump’s quixotic and ambivalent style of diplomacy.

 

As far as Turkey is concerned, there seems to be some continuity in Erdogan’s foreign policy, which is to support the Palestinian national struggle and to favor democratizing movements from below, especially the Muslim Brotherhood, but to avoid entanglements of the sort that led to a major foreign policy failure in Syria after 2011, and recently, an announced willingness to support the Libyan government against insurgency. Also Turkey has under Erdogan’s leadership supported major institutional reform at the UN by questioning the hold of the permanent members of the Security Council on UN decision-making, typified by the slogan ‘the world is greater than five.’).

 

  Q5. Do you see China as emerging any time in the near future as a global superpower?

 Response: I think China is already a global superpower in some fundamental respects, although not a global leader in the manner of the United States in the period between 1945-2016. Whether it has the political will to play a geopolitical role beyond its East and South Asian nearby regions is difficult to predict. The top Chinese officials seem to sense a dangerous vacuum and inviting opportunity resulting from the withdrawal of the United States from its leadership position. At the same time, the Chinese themselves seem aware of their lack of experience beyond the Asian context outside of the economic sector, are preoccupied with domestic challenges, and are aware that Chinese is not a global language nor the renminbi a global currency. For these reasons, I expect China to stay largely passive, or at most defensive, when it comes to the global geopolitical agenda, and use its considerable leverage to promote multipolarity and restraint in most international venues.

 

At the same time, China’s superpower status can be affirmed in two different fundamental respects: as the only credible adversary of the United States in a major war and as a soft power giant when it comes to spreading its influence beyond its territorial limits by a variety of non-military means, most spectacularly by its Road and Belt Initiative, the largest investment in an integrative undertaking in the world. If soft power status is the best measure of influence in a post-political world order, then China may have already achieved global leadership if history is at the dawn of a new period in which the role of military power and conquest as the principal agent of change is morphing toward obsolescence. Arguably the most telling symptom of American decline is its gross over-investment in military capabilities despite enduring a series of political setbacks in situations where it dominated the battlefield, which when coupled with the failure to address the decaying domestic infrastructure and refusing to fill the gaps of social protection. Perhaps, the Vietnam War is the clearest instance of total military superiority resulting in the loss of a war, but there are other notable instances (Afghanistan, Iraq).

 

 

Q6. If you were asked to provide a radical vision of the world order in the 21st cedntury, what would it look like?

 

Response:This is a difficult assignment. I would offer two sets of response, but with a realization of the radical uncertainty associated with any conjectures about the future of world order. My responses depend on some separation between considerations of policy and of structure. I respond on the basis of my tentative diagnosis of the present reality as posing the first bio-ethical-ecological crisis in world history.

 

With respect to policy, I would emphasize the systemic nature of distinctive present challenges, global in scale and scope. The most severe of these challenges relate to the advent of nuclear weapons, and the related geopolitical policy consensus that has opted for a nonproliferation regime rather than a denuclearizing disarmament alternative. Such a regime contradicts the fundamental principle of world order based on the equality of states, large or small, when it comes to rights and duties under international law. It does, however, reflect adherence to the fundamental norm of geopolitics that is itself embedded in the UN Charter, which acknowledges inequality with respect to rights and duties, evident in other spheres of international life, including accountability for international crimes, as acknowledged by the demeaning phrase, ‘victors’ justice.’

 

To address the challenges to world order that threaten the peoples of the world does not require overcoming political inequality altogether, but it does require attaining two goals that involve radical changes in political behavior: 1) respect for and adherence to international law and the UN Charter by all states, especially the most powerful, which would at least entail national self-discipline and the elimination of the right of veto at the UN, but not necessarily permanent membership in the Security Council; 2) the strengthening of the autonomy of the United Nations in relation to the peace and security agenda by creating an independent funding arrangement based on imposing taxes on transnational travel, military expenditures, and luxury items. The objectives would be to move toward a global organization that was dedicated to the global and human interest as well as to the promotion of national  interests as is now the case, which would depend on vesting implementing authority in the UN Secretary General as well as the acceptance of a degree of demilitarization by current geopolitical actors, with the proclamation of shared goals of making national security unambiguously defensive, and globally regulated in accord with international law.

 

In effect, the policy priorities to be served by such a radical reordering of global relations, shifting authority and power from its present geopolitical nexus to a multiplicity of hubs of influence that sought global justice and ecological sustainability, and were more institutionally situated in global networks and arrangements. In the scheme depicted above it would mean a rather dramatic shift from geopolitical autonomy to a more law-governed world order with the establishment of effective mechanisms to serve the whole of humanity rather than being focused on the wellbeing of its distinct territorial parts. In the process, accompanying social democratic arrangements for trade, investment, and development would need to be adjusted to serve the attainment of basic economic and social rights as implemented by monitoring and regulatory transnational procedures that were also sensitive to ecological sustainability.

 

It hard to imagine such policy and structural modifications taking place without a renewed confidence in democratic, ethically grounded, and generally progressive styles of governance at the national level, protective of vulnerable people, accountable to future generations, as well as acting without total deference to short-term electoral cycles. In other words, the behavioral tendencies and values that are now dominating most political arenas by dangerously myopic approaches to policy and structures of accountability would have to be transformed on the basis of ecological consciousness, respect for human rights and international law, and an international institutional structure oriented around the protection of human and global interests in addition to national rights.

 

There is no plausible political path visible to such a future at present, although there is a growing sense of panic, especially among youth, as recently epitomized by the charismatic impact and impressive insight of Greta Thunberg. What is altogether missing from the present setting are credible sources of revolutionary energy guided by such a vision of a necessary and desirable future, which would entail the rejection of autocratic governance of sovereign states and of apartheid geopolitical regimes (as with nuclear weapons, accountability to international criminal law, and double standards). In effect, a drastic shift from a zero-sum world of destructive rivalry, exploitation, intervention, and political egoism to a win/win world based on the emergence of a sense of global community and ecological unity accompanied by the mechanisms and structures to convert policy directives into behavioral conformity.

 

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Casting Doubt: Trusting Whistleblowers More Than International Institutions–Syrian CW Attack on Douma

27 Oct

Courage Foundation Panel Challenges International Finding of Syrian Reponsibility

For the 2018 Attack on Douma  

 

 

An independent British civil society organization, Courage Foundation, convened a panel of persons with diverse professional backgrounds relevant to the assessment of a challenge directed at the reliability of a respected international institution—the Organisation for the Prohibition of Chemical Weapons (OPCW). The statement below, carefully drafted by the collective efforts of the panel reflects an acceptance of the lengthy presentation of the case against the reliability of allegations that the Syrian Government was guilty of a lethal chemical weapons attack on the Damascus suburb town of Douma (East Ghouta) on April 7, 2018 that was relied upon by the U.S. Government to justify a retaliatory strike against Syrian targets. The panel statement and process was greatly strengthened by the participation of Jose Bustani, former and initial Director General of OPCW, who while not physically present at the Brussels meeting was fully briefed by the whistleblower in Brazil, and took part in the preparation and endorsement of the final statement.

 

The panel, of which I was a member, met in Brussels on October 14, 2019, examined documents, reports, and listened to testimony. It drafted the statement printed below after discussion, which was subsequently modified and edited by email exchanges among the panelists. The Courage Foundation has its offices in Great Britain and is an organization dedicated to support for whistleblowing activities. It did not interfere with or exert influence upon the deliberations of the panel, which occurred in closed executive sessions with no Foundation personnel present. The statement issued by the panel is printed below. It can also be found at the link provided by the Courage Foundation:
https://www.couragefound.org/2019/10/opcw-panel-statement

 

 

In my view this inquiry into the authenticity of the allegations against the Syrian Government is important for its own sake, and beyond this, for the serious implications of the conclusion that despite its reputation, OPCW, is not a trustworthy organization in carrying out its assigned role of impartially investigating and validating or invalidating charges of violations of the International Chemical Weapons Convention (CWC). Not only did the panel find that OPCW tampered with the evidence to produce an outcome desired by the geopolitical actors involved in this instance, it tried to silence its own senior civil servants to such an extent as to produce what I would call ‘a reluctant but extremely credible whistleblower,’ a senior inspector with 17 years of experience with OPCW, and a member of the team that carried out the on-site investigations of the Douma allegations.  

Once again, as with Daniel Ellsberg, Edward Snowden, Julian Assange, and Chelsea Manning, as well as those still anonymous individuals exposing the wrongdoings of the Trump presidency, whistleblowing, and its protection and insulation from punitive actions has become an indispensable dimension of sustainable democracies. Not only is there a lack of transparency and accountability with respect to the undertakings of major national governments, but there is a deliberate manipulation of evidence and obstruction of procedures designed to protect the citizenry against abuses of state, and in the case of major states, especially the United States, to protect the public interest. If you believe in substantive democracy, you will hail whistleblowers as heroes of our time, and exert a maximum effort to oppose the efforts of governments to punish, prohibit, and demonize this crucial means of bearing witness and truth-telling.

 

Finally, it should be observed that the retaliatory strike following the allegations preceded the OPCW investigation, and involved an extremely legally doubtful use of international force in any event. Of course, such issues are outside the mandate of the OPCW, whose functions are limited to monitoring compliance with the provisions of the international treaty. According to the UN Charter, such an international use of force is only legally justified as an act of self-defense against a prior armed attack or as a result of formal authorization by the Security Council. There is nothing in the CWC itself that allows parties to act as international vigilantes entitled to take unilateral punitive steps against violators. In the course of Syrian civil strife since 2011, it has been treated as an issue of international vigilantism to regard ‘the red line’ related to the use of chemical weapons was crossed, to identify the perpetrator, and to justify a retaliatory use of force. The United States has claimed the authority to act in this manner, including determining on its own the scope, targeting, and scale of any retaliatory undertaking.  

 

 

 

Panel Criticizes ‘Unacceptable Practices’ in the OPCW’s investigation of the Alleged Chemical Attack in Douma, Syria on April 7th 2018

Posted on October 23, 2019

The Courage Foundation convened a panel of concerned individuals from the fields of disarmament, international law, journalism, military operations, medicine and intelligence in Brussels on October 15th. The panel met with a member of the investigation team from the Organisation for the Prohibition of Chemical Weapons (OPCW), the international chemical watchdog. On this basis the panel issued the following statement:

Based on the whistleblower’s extensive presentation, including internal emails, text exchanges and suppressed draft reports, we are unanimous in expressing our alarm over unacceptable practices in the investigation of the alleged chemical attack in Douma, near the Syrian capital of Damascus on 7 April 2018.  We became convinced by the testimony that key information about chemical analyses, toxicology consultations, ballistics studies, and witness testimonies was suppressed, ostensibly to favor a preordained conclusion.

We have learned of disquieting efforts to exclude some inspectors from the investigation whilst thwarting their attempts to raise legitimate concerns, highlight irregular practices or even to express their differing observations and assessments —a right explicitly conferred on inspectors in the Chemical Weapons Convention, evidently with the intention of ensuring the independence and authoritativeness of inspection reports.

However belatedly, we therefore call on the OPCW to permit all inspectors who took part in the Douma investigation to come forward and report their differing observations in an appropriate forum of the States Parties to the Chemical Weapons Convention, in fulfillment of the spirit of the Convention. They should be allowed to do this without fear of reprisal or even censure.

The panel advances these criticisms with the expectation that the OPCW will revisit its investigation of the Douma incident, with the purpose of clarifying what actually happened. This would help to restore the credibility of the OPCW and work towards demonstrating its legally mandated commitment to transparency, impartiality and independence. It is of utmost importance to restore trust in the verification procedures relied upon to implement the prohibitions of the CWC.

Panel members:

José Bustani, Ambassador of Brazil, first Director General of the OPCW and former Ambassador to the United Kingdom and France,

Richard Falk, Professor of International Law, Emeritus, Princeton University; Visiting Professor, Istinye University, Istanbul

Kristinn Hrafnsson, editor-in-chief, Wikileaks

John Holmes, Maj Gen (retd), DSO OBE MC

Dr. Helmut Lohrer, MD, Board member of International Physicians for the Prevention of Nuclear War (IPPNW) and International Councilor of its German Affiliate

Prof. Dr. Guenter Meyer, Centre for Research on the Arab World (CERAW) at the University of Mainz

Elizabeth Murray, former Deputy National Intelligence Officer for the Near East, National Intelligence (retd); member, Veteran Intelligence Professionals for Sanity and Sam Adams Associates for Integrity in Intelligence (www.samadamsaward.ch)

 

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Burning Amazonia, Denying Climate Change, Devastating Syria, Starving Yemen, Ignoring Kashmir

5 Sep

Burning Amazonia, Denying Climate Change, Devastating Syria, Starving Yemen, Ignoring Kashmir

 

The World Order Backdrop

 

Arguably, even before the atom bomb was dropped on Hiroshima, there was a widespread sense that a state-centric form of world order was morally and functionally deficient in certain fundamental respects. Political actors were indifferent to the outbreaks of war, disease, and famine outside of their sovereign territory absent serious extraterritorial reverberations. At the same time lesser states were vulnerable to the manipulations and territorial/imperial ambitions of leading states that generated colonialism, interventions, and sustained an exploitative Europeanization of world order. World War I with massive casualties, closely followed by the Russian Revolution, which posed a normative challenge to the capitalist/market driven organization of national societies, led to some groping toward a new global order taking the institutional form of the League of Nations. It became soon obvious that the League, a project of idealists, was not endowed with the capabilities, independence, and authority needed for success, and its failure to bring peace to the world did not surprise the political leaders of major countries and even less, their realist advisors.

 

Then came World War II with estimated casualties of 60 million and the future gravely menaced by the advent of the nuclear age, and the recognition became more widespread, including among political classes, that global reform was indispensable if catastrophe was to be avoided. The United Nations emerged in this atmosphere of urgency, conceived to correct the shortcomings of the League while recognizing and incorporating the geopolitical realities of inequalities among states when it comes to political and economic power and diplomatic influence. The predominant Western understanding in 1945 was that to make the UN operationally relevant it would be necessary to connect geopolitics to statism in a mutually acceptable manner. This rather incoherent dualistic goal was operationalized by giving the right of veto to the five permanent members of the Security Council and in the Charter and General Assembly affirming the juridical equality of all Members, whether small or large sovereign states. There were also parallel worries n 1945 as serious as the impulse to achieve war prevention. It was widely believed in the West that effective global mechanisms were needed to avoid a new worldwide economic depression, which was translated into political reality through the establishment of the World Bank, IMF, and later, the World Trade Organization that also had a dual mission of regulating and promoting global market forces.

 

The UN lacked sufficient financial independence and political autonomy to fulfill the promise of the idealistic vision of the Preamble to the UN Charter. This vision of war prevention was blocked geopolitically by the political behavior of states enjoying a right of veto and juridically by the primacy accorded nationalinterests of all Members. The result, as evidenced by the failure to remove threats of nuclear weapons, climate change, and global migration, demonstrated the UN’s inability to protect either globalor human(that is, species) interests. In such an atmosphere, the drift toward catastrophe continues, hastened by hyper-nationalism, escapism, denialism, and short-termism. This drift is currently accelerated by the hyper-nationalism of leading states, including the United States, that earlier offered some incidental support for global and human interests, expressive of its hybrid approach to global leadership, which featured both selfish and benevolent motivations. This meant combining the pursuit of self-aggrandizing goals with the pursuit of a somewhat enlightened and pragmatic view of its global leadership role, sometimes called ‘liberal internationalism.’ Such an approach favored mutually beneficial forms of international cooperation, human rights, environmentalism, and disaster relief, while simultaneously accommodating geopolitical goals as achieved by intervention and a selective instrumentalization of international law and the UN, which meant using law and the UN when supportive of foreign policy, while ignoring or opposing when obstructive.

 

In effect, the sovereign territoriality of all states prevailed in the organization of international life so long as the strategic, ideological, corporate, and financial interests of geopolitical actors were not serious threatened adversely affected by internal developments. The UN Charter recognized this in Article 2(7) by prohibiting the Organization from intervening in matters ‘essentially within the domestic jurisdiction’ of Member states unless international peace and security were affected. In this spirit, environmental issues have never been seen as providing sufficient grounds for intervention by the UN or geopolitical actors. As a matter of international law intervention by states is prohibited by contemporary international law, although opportunistic exceptions exist, and violations and geopolitical interpretatons of the norm occur.

 

There exists a doctrine of ‘humanitarian intervention’ and a norm mandating ‘a right to protect’ (R2P), but no claim or practice associated with ‘environmental’ or ‘ecological’ transnatonal intervention, and no norm formulated in light of a ‘right to protect humanity.’ And so the fires in Brazil (and Africa) continue to burn, a rhetoric of widespread disapproval reaches the stars, but no coercive action is even proposed beyond some expressions of reluctance to cooperate economically or halfhearted recommendatios to boycott of certain agricultural exports. The Brazilian response has produced exclamations of ‘national sovereignty’ and some cosmetic reassurances that matters are under control, despite the continuing billowing of clouds of smoke so dark as to obscure the sun as far 1,700 miles away in the huge city of Sao Paulo. Finally, nominally bowing to international pressures, Bolsonaro finally dispatched 700 troops to help with firefighting in the Amazon, but such a move seemed nominal and too belated to undo the damage being daily done by the raging fires in the forest areas.

 

 

Amazonia, Syria, Yemen, and Kashmir

 

What these issues have in common is the inability of the global system of authority to save these national populations from experiencing prolonged tragedy as a result of the criminal behavior of the territorial government and, in some instances, its insurgent adversaries. It is a central deficiency of world order as a system of political control as assessed from a humanistic perspective, and is reinforced by the geopolitical maneuvers of leading states. The political will to act effectively is shaped by nationalist motivations and by more material concerns involving territory, markets, resources, and population identities, with the concern for the avoidance of mass suffering pretty much confined to angry or pleading rhetoric. In effect, principles of international law and the authority UN are ineffectual unless backed by political will or activated by a robust political movement. For Syria, Yemen, these tragic happenings impact upon the society of people, while for Kashmir, the Indian repudiation of Kashmiri autonomy threatens a war between two nuclear weapons states, as well as gives rise to severe state/society tensions.

 

The 2127 fires ablaze in the Amazon are different. Burning Amazonia affects the world by endangering the world’s largest rain forest. It is the latest manifestation of ecological insensitivity by leaders of important countries, in this case, Brazil. Such an extreme degree of insensitivity is not only responsible for massive human suffering by way of displacement and disruption, it also weakens the carbon cycle and lessens biodiversity. The increased concerns about these fires are linked to the 278% in deforestation over the prior year, and to a Brazilian political leadership that makes no secret of its hostility to environmentalism, blaming its critics for drawing attention to these occurrences to discredit the Bolsonaro government, a way of discrediting Brazil’s supposedly justifiable emphasis on economic development and investment opportunity.

 

The Environmental Minister of Brazil, Ricardo Selles sought to deflect criticism, attributing the surge in fires to weather, wind, and heat, that is, as arising from natural causes rather than government policies. He pointed out, correctly, that many of the fires were annual efforts by cattle ranchers, farmers, and loggers to clear their land, a routine agricultural practice. Bolsonaro went so far as to suggest that environmental NGOs might have deliberately set the fires to bring disrepute to the government, and he angrily resisted attempts by the French president, Emmanuel Macron, to internationalize the Amazon fires. There may be an element of truth in these defensive assertions, but they fail to address the real ecological done by those fires in the forest areas of the Amazon that have been deliberately set to make way for soy crops, cattle, and more profitable logging.

 

Despite ‘the fog of ecocide,’ this much is clear. The rainforests of the Amazonia, sub-Sahraran Africa, and Borneo/Indonesia are indispensable ecological resources of the planet whose managerial control should not be left entirely to national discretion as exercised by governments, often on the basis of economistic and short-term policy goals, which is currently almost invariably the case. This statist sovereignty approach not only puts at risk the planet’s largest carbon sink and most valued source of biodiversity, as well as disrupting and imperiling the lives of 20 million or more people, mostly indigenous communities, living in Amazonia. Forest experts warn that once a rainforest is degraded beyond a certain point, a tipping point is reached, and the degrading will continue of its own accord until what was once a flourishing rainforest becomes a huge area savannah grasslands. Even before tipping points are reached it takes decades to restore forest ecosystems, including precious biodiversity resources. This dynamic of disastrous mismanagement is accentuated with respect to Amazonia by the Brazilian leadership that ignores pleas from indigenous and riverine communities, as well as environmental groups in Brazil, and the UN and the EU at a time when the planet’s eco-stability depends on planting billions of trees annually, and is further jeopardized by large scale deforestation that cuts deeply into the population of carbon-absorbing trees. Of course, ecological irresponsibility has become for the autocrats who now rule the world their perverse norm of political correctness, led by the climate deniers in Washington that are setting retrograde standards for American environmental policy during the Trump presidency. If the richest country in the world is so irresponsible as to embrace climate change denialism, withdraw from negotiated international arrangements, and make national policy on this basis, what can we reasonably expect from poorer more economically challenged developmentally preoccupied countries? The world order crisis is real, severe, intensifying, and unprecedented in scale and scope.

 

 

Legalistic Exercises in Futility

 

One of the most progressive and persuasive contemporary advocates of a law-based approach to world order and U.S. foreign policy has been that of Marjorie Cohn, a friend and more than that, a comrade. She has responded to the fires in the Amazon in a well-sourced opinion piece whose thesis is conveyed by its title “The UN Could Save the Amazon With One Simple Move,” [Truthdig,  Sept. 1, 2019] She points out that the UN Security Council can declare that the Amazon fires are a threat to international peace and security, and that Brazil should be the target of economic punitive measures to coerce responsible environmental policies, pointing out that the UN did this with good effect as part of the global anti-apartheid movement [See Security Council Resolution 585, 586, 587, 1985] Cohn also calls attention to Articles 25 and 49 of the UN Charter which commits Member states to implement Security Council decisions. Such an analysis is completely valid as far as it goes. A coherent legal framework exists within the UN System that could be used to exert unlimited pressure on Brazil to act in an ecologically responsible manner with respect to Amazonia, but there is one vital element missing—the political will of the main geopolitical actors.

 

It is often overlooked that the UN never was never intended to offer the world an unconditional endorsement of a global rule of law. By its constitutional character, it was established as an institution that was expected to juggle the requirements of global law and order with geopolitical priorities. Such was the clear function of the right of veto given to the five permanent members of the Security Council. It was hoped by those of idealistic disposition that the wartime anti-fascist alliance would persist in a peaceful world, especially as the special status within the Organization was given only to the five states regarded as the victors in World War II. But it was the realists who shaped the will of the geopolitical actors, then and now, and they never for a moment endorsed a global security system resting on law and Charter principles. Indeed, they derided it. The realist consensus, associated with such policy-oriented intellectuals as Dean Acheson, George Kennan, Henry Kissinger, and Zbigniew Brzezinski knew better, believing that national and global security rested, as supposedly always had and always will on balance of power mechanisms, military capabilities, pragmatic leadership, and calculations of national interests. With the partial exception of Kennan none of those figures inhabiting the realist pantheon had the slightest interest in or respect for those who encouraged a framing of global policy by reference to human wellbeing, global justice, or ecological sustainability. In the present global mix, it is only France, a geopolitical lightweight that has dared to raise its voice above the level of a whisper to urge that the extraterritorial repercussions of the Amazon fires justify a global response, but even Macron is quite timid, relying on diplomatic discourse, offers of economic assistance, and the policy venues of the European Community and the G-7. He is too tied to the realist camp to encourage reliance on international law or the UN, and gives not even a hint that the French government would favor punitive action. Even this small French gesture of concern is too much for Donald Trump who complains that Bolsonaro was not being properly consulted while Brazilian internal policy is under consideration.

 

It is perhaps true that the UN could save Amazonia if the political will to do so existed, but it doesn’t, which sadly means that the UN is irrelevant, which is even more true than in the past, given the ultra-national mood now prevailing among geopolitical actors. We might ask what would Obama or Carter have done differently. Probably, not much without a robust global civil society movement that was itself advocating change and drastic measures. It should be remembered that the UN joined, rather than initiated, the anti-apartheid campaign in the 1980s, and that the geopolitical actors in the West went reluctantly along, not because of their antipathy to racism, but because of grassroots agitation in their own societies. In this connection it should be remembered that the U.S. and Britain vetoed UN calls for mandatoryeconomic measures to be lifted only when South Africa agreed to abandon apartheid, and abstained on other resolutions. [See NY Times, July 27, 1945]

  

 

 

What is the Question?

 

In my view, the crisis of Amazonia Burning, makes us more aware of the structural deficiencies of world order that existed ever since sovereign states claimed authority over the entire land mass of the planet as allocated to governmental authorities through the device of internationally recognized boundaries, yet the environmental and ecological issues raised were largely containable within national, regional, and even global frameworks (including world wars). This approach to the territorial allocation of authority and responsibility is supplemented by a highly permissive approach to the world’s oceans by way of freedom of all states to make almost unrestricted use, including naval operations, with minimal procedures for accountability in the absence of specific agreements (as exist, for instance, in the form of prohibitions on most whaling, and many other matters of common concern). Perhaps, the most untenable use of the oceans occurred in the decades after World War II when massive nuclear explosives designed to become warheads on weapons were extensively tested on the high seas, causing radiation to cause disease and death, especially to nearby islanders. And yet, aside from civil society protests, nothing was done by the UN or elsewhere, undoubtedly in part because the main culprit was the leading geopolitical actor. Only after a worldwide civil society protest did governments respond by negotiating the Limited Test Ban, which itself was never fully implemented.

 

With the use of atomic bombs in 1945, and their later development and spread, the core stability of statist world order—also, known as Westphalian world order—began to fray. With the buildup of greenhouse gasses and the decline of biodiversity that process has taken on a momentum of its own, which if not resisted and reversed, spells doom for the human species and much of its natural habitat.

 

We know that this bio-ethical ecological crisis cannot be overcome by appeals to international law and an ethos of international responsibility. We know also that the UN and regional organizations lack the capability or authority to override the sovereign resolve of states dedicated to maximizing national interests, being especially inhibited by the geopolitical actors who have the authority to block decisions in the Security Council. We also have become aware that these essentially structural features of world order exert additional negative influences as a result of failures of global leadership to mitigate world order deficiencies by acting to some extent in the global interest or to react empathetically to the peoples victimized by internal oppression. In an earlier period, this supplemental structural element associated with global leadership helped generate such beneficial arrangements as the public order of the oceans and of Antarctica and more recently the 2015 Paris Agreement on Global Warming and the Iran Nuclear Agreement. It would be a mistake to exaggerate the contribution of global leadership, or overlook its negative impacts, which always accorded geopolitical concerns the highest priority, failing to rid the world of nuclear weaponry and colonialism and failing to set a positive example by shows of respect for international law and the UN.

 

Efforts to overcome these deficiencies have been a characteristic of reformist initiatives and transformative proposals ever since the end of World War II. A dramatic initiative took place with the formation of the Non-Aligned Movement as an outgrowth of the Bandung Conference in 19  . Reflecting developmental priorities and a post-colonial naïve sense of global ethical consciousness, the Third World configuration of non-Western state actors put forward a broad platform under the rubric of The New International Economic Order. And more recently, the UN International Convention on the Prohibition of Nuclear Weapons highlighted both the concerns of non-nuclear weapons states and the dismaying irresponsible offsetting pushback by geopolitical Western actors determined to retain nuclearism. In effect, overcoming the deficiencies of world order have failed when undertaken by governments or under the auspices of the UN. Reformist initiatives supported by geopolitical actors have done somewhat better due to their policymaking leverage, but do not seek changes that are inconsistent with their short-termgeopolitical interests. Hence, the failure to realize the vision of a world without nuclear weaponry, to achieve environmental regulations as a level responsive to the consensus among climate scientists, and to address a long list of extraterritorial problems that would be treated differently if approached from perspectives of global rather than national interests.

 

What is suggested, is the dependence of human wellbeing on the emergence of a transnational activist movement that demands major structural reforms of world order that

seek a favorable resolution of the bio-ethical crisis. If this seems utopian, you are

quite right to react as if there is no plausible path leading from here to there. Yet I believe it is more illuminating to insist that activating the utopian imagination is the only source of a transformed realism that is sensitive to the distinctive challenges and opportunities of the 21stcentury. Adhering the premises of 20thcentury realism is increasingly a recipe for disaster as the tragedy of Amazonia Burning illustrates, a metaphor for the losing struggle to save life, health, and sanity on planet earth. And while Yemen, Syria, and Kashmir do not threaten the planet’s material viability, the failure to address these massive assaults on human dignity and human rights exhibit the spiritual impoverishment of world order.

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Context Matters Except for the Palestinians

2 Aug

Context Matters Except for the Palestinians

 

Just imagine the Israeli reaction to a peace plan put forth by a future U.S. president elected to pursue the agenda of ‘the squad,’*[*]appointing Noam Chomsky, the head of CAIR, and Medea Benjamin on assuming office to lead its moves toward peace in the Middle East. Imagine further that prior to disclosing President Alexandria Ocasio-Cortez’s revolutionary peace initiative, Washington’s new leadership took the following unilateral steps: tabling a Security Council Resolution calling for the dismantling of the Israeli separation wall in accord with the 2004 Advisory Opinion of the World Court, insisting on Israeli adherence to Article 49(6) of the Fourth Geneva Conventions while calling for the prompt re-settlement of all Israeli settlers behind the 1967 Green Line, and informing Congress of its intention to discontinue further annual economic and military assistance to Israel. In addition to these ‘provocations,’ the U.S. energetically pursued a regional diplomacy with Arab neighbors designed to exert the greatest possible pressure on Israel to go along with whatever Washington proposes or suffer severe adverse consequences.

 

I know this would strike even most pro-Palestinians as an absurd way to seek sustainable and just peace arrangements, but this is precisely the road taken by the White House in its multiple acrobatic moves designed to build leverage for the Trump/Kushner ‘deal of the century.’ Even Obama’s feeble attempts to balance the scales ever so slightly brought fury to the lips of most Israelis, including its leaders. We can hardly imagine the Israeli response to a peace initiative launched by the squad along the above lines, which for all of its seeming radical character would actually be reasonable from the perspective of international law and morality even as it was causing collective apoplexy in Tel Aviv. The absurdity of this inverted ‘peace’ scenario should help us understand how extreme has been the pro-Israeli brand of extremism of the Trump White House. The fact that this has to be demonstrated rather than taken for granted underscores how victimized the Palestinian national struggle has become in the eyes of many of us in the West.

 

Equally worth observing is the discourse on the Trump diplomacy adopted by Zionist apologists, and even some anti-Trump liberals and Israeli peace activists such as Gershon Baskin. Their bad faith message to the Palestinians is along three parallel lines: “Don’t repeat past mistakes by simply rejecting Trump’s peace proposals,” “Under the circumstances, what Trump offers is the best Palestine can hope for given altered conditions on the ground and in the region,” and “Don’t reject in advance, participate, listen attentively, responding favorably to any positive elements, and project an image of constructive engagement.” Revealingly, this advice to the Palestinians is set forth without any consideration of the extreme anti-Palestinian contextcreated by a series of deliberate moves by Trump from the moment he was elected. Can you even imagine giving Israeli leadership this kind of advice if the political realities were ever to be reversed?

 

It hardly requires a vivid imagination to conjure up the expletives that would undoubtedly lend color to the most probable Israeli responses to being told what to do in comparable circumstances. The Palestinians, in contrast, are being chastised for not being receptive and refusing to come to the table with an open mind. True, the Palestinian Authority has not shown much finesse in handling the situation, relying on the sufficiency of its skeptical mumbling and an ambivalent public ‘NO.’ Better would have been an explanation along these lines, “Given the hostility toward Palestinian concerns that have been a trademark of the Trump presidency since its beginning, how can anyone in their right mind expect us to be so foolish as to pretend that there exists any basis for exploring the Trump/Kushner proposals as if they might offer a fair resolution of our long struggle for the most basic rights of the Palestinian people?” Sitting down in such a tilted diplomatic atmosphere would be the height of folly for the Palestinians, making them seem without dignity or understanding, mere puppets assembled so that their enemies could manipulate the strings.

 

Palestinians could and should have done better in setting forth their own vision of peace.  The extreme one-sidedness of the Trump approach handed Palestinians a golden opportunity to declare as convincingly as possible the urgent and immediate need for a new peace intermediary that was a facilitator, and not a partisan as past American presidents, or worse, an imposer as this one seems to be. The United States had long overplayed its hand as ‘honest broker,’ but now it had gone so far as to make any further Palestinian acceptance of the American role a source of humiliation, if not a sign of political senility.

 

It is worth noticing always, how the background of pro-Israeli objectionable behavior is treated by international commentary. When the context of justification is overlooked or repressed it usually signals an intention to persuade the audience by excluding complicating considerations, in this instance, the multiple signs that the United States has destroyed all reasonable expectations on the part of the Palestinians of fairness or objectivity in a proposed peace process. The Oslo framework as set forth in 1993 was deficient from these points of view but the deal of the century/peace from prosperity framework is so much worse, and yet it stands unrepudiated. When the context is put forward, it represents a genuine attempt to discover whether there are reasonable grounds for moving forward, and in this case there are none.

 

In the end, there is an underlying misinterpretation that has further distorted most commentary. What is being sought by Trump’s ‘peace diplomacy’ is not a political compromise that takes accounts of the basic rights of the two peoples, but a victory of one side over the other. It is an approach lightly theorized by Daniel Pipes and his confederates at the Middle East Forum, seeking to justify and advocate an increase of coercive U.S. and Israeli moves that will induce the Palestinians to acknowledge political defeat and submit to conditions at the behest of the Israeli victor. Thus, the success of the Trump/Netanyahu approach is not a matter of finding common ground between the two sides to form an agreement, but turning the screws of oppression so tight that the Palestinians will surrender. The approach has relied upon unilateral punitive actions supplemented by regional and global geopolitical leverage, but little direct violence beyond the endorsement of Israeli excessive force in dealing with the Great March of Return over the course of the last 68 Fridays.

 

Against this background, there exists an opportunity for responsible Palestinian leaders to do more than sit sullenly on their hands. In addition to explaining why Trump’s moves makes the traditional U.S. role unacceptable for purposes of negotiation, the Palestinians of all factions should do their utmost to set aside their disagreements, and achieve a unity of purpose, at least for the duration of their national struggle. Even more important might be, seizing the diplomatic initiative by making public a document that develops a comprehensive peace proposal that stakes out in general terms the contours of a political compromise on Jerusalem, settlements, statehood, borders, refugees, water, offshore resources, economic cooperation, security, and whatever else seems relevant. Even if only in the form of a declaration of principles, with explanatory commentary, it would manifest an intention to do more than refuse the paltry offerings that Kushner, Inc. is peddling throughout the region.  Such a positive initiative articulated by the Palestinian side is long overdue, would be of help to the Palestinians in the continuous ‘public relations war’ that may in the end be as relevant to the political struggle as the diplomatic tug of war or even resistance struggles. At this stage, nothing would give greater weight to Palestinian demands than its backing of an approach to peace that would seem so much reasonable and responsible than what is now being promoted by the Trump White House.

 

The basic point lingers. Context matters, and when it is eliminated, assessments of behavioral reasonableness are bound to be distorted and extremely misleading, especially if what is at stake is highly contested. This is particularly true for the Trump/Kushner unabashedly cruel approach to peace that can only be properly understood as placing a thin veil of deception over a concerted push to achieve an Israeli ‘victory’ while pretending to seek peace on the basis of political compromise. This emperor has no clothes! Those who care about justice must not let this happen!  

 

 

[*]‘The Squad’ is the name given to a group of four progressive Congress persons elected in 2016, and challenging the bipartisan precepts of American foreign policy. Their names are Ilhan Omar, Rashida Tlaib, Ayanna Pressley, and best known, Alexandria Ortiz-Cortiz.

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