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Israel’s Likud Troika: Burying the Oslo ‘Peace Process’

12 Sep

 

 

[Prefatory Note: This is a slightly modified text of an article published in Middle East Eye on September 1, 2015, and republished on my blog with permission. http://www.middleeasteye.net/columns/israel-s-likud-troika-and-end-oslo-peace-process-1425103979]

 

 

Israel’s relentless accumulation of territorial facts on the ground some years ago doomed the peace process associated with the Oslo Framework of Principles adopted in 1993. It became increasingly difficult to envisage an Israeli willingness to dismantle settlements and road network or remove the separation barrier, and without such steps there could never be achieved an independent and viable Palestinian state. It should be kept in mind, without even raising the issue of the right of return of at least five million Palestinian refugees living outside of Palestine, that the whole premise of Palestinian statehood was based on the green line ceasefire borders that emerged from the 1967 borders. Even if Israel were persuaded to withdraw from the entirety of occupied Palestine, it would amount to only 22% of historic Palestine, less than half of what the UN recommended to a much smaller population by way of partition in 1947 (GA Res. 181). Yet even in those days of illusion when Israel was purporting to be receptive to the two-state approach it insisted on carving out a permanent security zone in the agriculturally rich Jordan Valley and maintaining a significant measure of border control.

 

For years Israel has played along with the diplomatic consensus constructed on basis of a two-state solution of the conflict as the only reasonable politically compromise. Israel had lots to gain from upholding this consensus, but quite a bit to lose by actually implementing it in a reasonable manner. Maintaining the diplomatic track satisfies its own citizenry and world public opinion that it is doing everything possible to reach a peaceful end of the conflict. In the course of such events, Israel gained the time it needed to expand the settlement phenomenon until it became so extensive as to negate any reasonable prospect for substantial reversal. And yet by relying on its sophisticated control of the media it could pin most of the blame on the Palestinian Authority for one round after another of failed bilateral negotiations. This in turn made it possible to mount propaganda campaigns around even the false claim that Israel lacked a Palestinian partner for peace negotiations.

 

While this diversionary process has continued for more than two decades, Israeli consolidated its influence in the U.S. Congress, which strengthened an already unprecedented ‘special relationship’ between the two countries. These dynamics made a mockery of Washington’s claim to be a neutral intermediary. And above all, the consensus pacified the international community, which repeatedly joining the public chorus calling for resumed negotiations. This became a cynical process with diplomats whispering in the corridors of UN buildings that the diplomatic effort to end the conflict was a sham while their governments kept restating their faith in the Oslo approach.

 

As argued here, the present futility of Oslo diplomacy has been indirectly acknowledged by Israel, and should be explicitly abandoned by the world community. Whether Israel’s was ever prepared to accept a Palestinian state remains in doubt. The fact that each prime minister since Oslo, and this includes Yitzhak Rabin, endorsed settlement expansion raises suspicions about Israel’s true intentions, but there were also indications that Tel Aviv earlier had looked with favor upon the diplomatic option provided that it could, with American backroom help, persuade the Palestinians to swallow a one-sided bargain that incorporated the settlement blocs and satisfied Israel’s security goals.

 

In the last couple of years the veil has been lifted, and it is overdue to declare Oslo diplomacy a failure that has been costly for the Palestinian people and their aspirations. We can reinforce this assessment by pointing to three connected developments at the pinnacle of Israeli state power, dominated in recent years by the right wing Likud Party. The first is the election by the Knesset in 2014 of Reuven Rivlin as the tenth Israeli president.

Rivlin is a complex political figure in Likud politics, a party rival of Netanyahu, a longtime advocate of a one-state solution that calls for the annexation of the West Bank, and an opponent of international diplomacy. The complexity arises because Rivlin’s vision is one of humane, democratic participation of the Palestinian population, conferring citizenship based on fully equality, and even envisioning an ethnic confederation of the two peoples to be achieved within Israel’s expanded sovereign borders.

 

The second development was the campaign promise made by Netanyahu on the eve of the March elections that a Palestinian state would never be established so long as he was prime minister. This startling break with the American posture was also a reversion to Netanyahu’s initial opposition to the Oslo Framework, and bitter denunciations of Rabin for embracing a process expected to result in Palestinian statehood. Netanyahu’s 2015 campaign pledge seemed closer to his true position all along if judged by his behavior although contradicting what his talk at Bar Ilan University back in 2009 when he declared support for Palestinian statehood as the only way for Israel to achieve peace with security. To slightly mend relations with Washington after his recent electoral victory, Netanyahu always crafty, again modified his position, by saying that in the heat of the elections he only meant that no Palestinian state could be established so long as jihadi turmoil in the region persisted. Given the extent of Israeli territorial encroachments on occupied Palestine I would trust Netanyahu’s electoral promise much more than his later clarification, a feeble attempt to restore confidence in the special relationship with the United States.

 

The third development, which should remove the last shred of ambiguity with respect to a diplomatic approach, is the designation of Danny Danon as Israel’s next ambassador at the UN. Danon is a notorious settlement hawk, long an outspoken advocate of West Bank annexation, arrogantly disdaining the arts of diplomacy needed to deflect the hostile UN atmosphere. If Israel felt that it had anything to gain by maintaining the Oslo illusion, then certainly Danon would not have been the UN pick. There are plenty of Israel diplomats skilled in massaging world public opinion that could have been sent to New York, but this was not the path chosen.

 

How shall we best understand this Israeli turn toward forthrightness? In the first instance, it reflects the primacy of domestic politics, and a corresponding attitude by Israel’s leaders that it has little need to appease world opinion or accommodate Washington’s insistence that diplomacy, while not now working, remains the only road leading to a peaceful solution.

Furthermore, the Likud troika seems to be converging on a unilateralist approach to the conflict with the Palestinians, while doing its best to distract the international attention by exaggerating the threat posed by Iran. This unilateralist approach can move in two directions: The Netanyahu direction, which is a shade more internationalist, and involves continuing the process of de facto annexation of occupied Palestine, reinforced by an apartheid structure of control over the Palestinian people; the Rivlin/Danon direction overtly incorporating the West Bank into Israel, and then either following the democratic and human rights path of treating the two peoples equally or hardening still further the oppressive regime of discriminatory control established during over 48 years of occupation.

 

While this Israeli scenario of conflict resolution unfolds most governments, not sensing an alternative, continue to proclaim their allegiance to a two-state solution despite its manifest disappointments and poor prospects. At present, there are a series of international gestures toward lifting the peace process from its deathbed. Sisi of Egypt hosts Mahmoud Abbas of the Palestinian Authority proclaiming a readiness to mediate bilateral negotiations, and even Netanyahu in the immediate aftermath of Israel’s inability to scuttle the Iran Nuclear Agreement has the temerity to indicate an interest in renewed peace talks. In effect, ‘Oslo is dead, long live Oslo.’ Put differently, the political death of Oslo is being disguised by a diplomatic afterlife. It will be shameful if the Ramallah leadership again enters this cynically set diplomatic trap. As the above analysis shows there is no evidence whatsoever that Israel is at all inclined to allow an independent sovereign Palestinian state to come into existence. Israel is even fought hard against allowing Palestine to fly national flag in front of the UN building. Of course, as in the past, Israel will for the sake of public relations, including rehabilitating its ‘special relationship’ with the United States, evidently again play this cruel game of charades. But why are the Palestinians willing to be partners to such a sham?

 

This see-no-evil posture of governments, and even the UN, ignores the emergence of two more promising alternatives: the gathering momentum of civil society activism exhibited via the BDS campaign and increasingly acknowledged by Israel as its most security threat, leading recently to the establishment of an official ‘Delegitimation Department’ assigned to do battle with the Palestinian solidarity movement.

 

And on a diplomatic level, pursued with some energy and imagination by the Palestinian Authority, is the use of international law and Palestinian statehood to engage the wider international community of states in support of its struggle. Several examples illustrate the approach: the 2012 General Assembly endorsement of Palestinian statehood; the adherence to prominent international law treaties and conventions; admission as member to UNESCO; adherence to the Rome Treaty framing the activities of the International Criminal Court; and just days ago, the GA approval of the wish of Palestine, although having the status of a non-member observer state, to fly its national flag alongside the flags of UN members at UN buildings. With the abandonment of armed struggle and the breakdown of bilateral diplomacy, Palestinian recourse to legitimacy tactics reinforces the civil society global solidarity network that has been exerting increasing pressure on Israel.

 

 

 

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The Nuclear Challenge (10): Seventy Years After Hiroshima & Nagasaki: Against Binaries

10 Sep

[Prefatory Note: This is the tenth, and mercifully the last, in this series of posts prompted by the 70th observance of the atomic attacks in 1945. The intention has been to explore several of the more important dimensions of what is called here ‘nuclearism,’ the securitization of nuclear weaponry in the face of international law, international morality, and simple common sense, and what can and should be done to achieve desecuritization of such weaponry of mass destruction, reviewing the stubborn adherence to nuclearism by the nuclear nine, the marginalization of the UN with respect to disarmament and denuclearization, and the rise and fall of antinuclear activism in civil society. Hopefully, the time will come when a less gloomy depiction of the nuclear challenge can be made by some future blog practitioner. This text is a slightly revised version of what was initially posted, written in grateful response to comments received.]

 

There have been a variety of philosophical assaults on either/or thinking, perhaps most notably flowing from the deconstructionist pen of Jacques Derrida. In more policy related contexts, the debate about dichotomizing gender has featured two sets of arguments: first the contention that it is important to distinguish lesbians, gays, bisexuals, and transgender people, hence the LGBT designation of sexual ‘otherness,’ which enriches the either/or-ness of the reigning male/female gender binary. Identifications of sexuality also cuts against the grain of the dominant heterosexual or straight template, and is further contested by ongoing debates surrounding the societal, legal, and conceptual legitimacy of ‘same sex marriages.’

 

The New York Times columnist, Charles Blow, pushes the sexual identity envelope further by developing the case for ‘fluidity’ of preferences, that is, neither purely this or that. He personalizes the issue, indicating that he generally is attracted to women, but on occasion might also be attracted to men, which because the feelings of attraction are greater for women than men, it is not accurate to define himself as ‘bisexual.’ Such a blurring of boundaries corresponds with the actuality of his feelings that even cut across supposedly liberating socially constructed categories as LGBT is meant to be. [Sept 7, 2015] The point being that the biopolitical reality of life often does not divide neatly into binary categories, and when we address the issue as one of upholding societal norms by enacting laws disciplining sexual limits, adverse social, political, and psychological self-alienation and arbitrary distinctions follow. This encroaches upon our freedoms in unfortunate, often unconscious, ways, leading many individuals to stay in the closet to hide their true feelings or be open and face subtle punitive consequences. Or, at best, individuals conclude that their failure to fit their feelings into a single box is somehow ‘abnormal.’ Relaxing traditional roles of state, church, and society in policing politically correct identities is one of the few areas in which freedom in American can be said to have expanded in the last couple of decades, and this, largely due to the transcendence of gender and sexual binaries thanks to robust civil society activism that cut against the grain of majority sentiment.

 

 

Perhaps, the most blatant of all binaries bearing on nuclear weapons is between ‘good’ and ‘evil’ nuclear weapons states, which immediately reminds us of Mahmood Mamdani’s devastating critique of the distinction between ‘good’ and ‘bad’ Muslims. [See Mamdani, Good Muslim, Bad Muslim: America, the Cold War, and the Roots of Terror (2005)] The United States and its allies regard themselves as ‘good’ nuclear weapons states that the world has no reason to worry about while Iran, North Korea, and Pakistan are ‘evil,’ or at best ‘irresponsible’ or ‘insecure’ states that should if at all possible be disallowed to acquire nuclear weapons. It is this primary binary that provides the moral/political disguised infrastructure of NPT treaty regime, which when established was confined to the P5 of the UN Security Council, which while not conceived of as ‘good’ by the West were at least not part of ‘the axis of evil’ depicted by George W. Bush during his presidency.

 

In this series on the nuclear challenge as of 2015, I have myself succumbed to the ‘binary temptation’ in at least two respects—distinguishing arms control from disarmament, and separating nuclear disarmament from conventional disarmament. Relying on binaries can contribute to a certain clarity of analysis, leading I believe to useful political discourse, but it is also misleading unless qualified and transcended. Dichotomizing choice and consequences in these ways can be especially useful in pointing out weaknesses and pitfalls in ‘politically correct’ methods of solving societal problems. In this spirit, I continue to believe it is illuminating to insist on the critical difference between complete nuclear disarmament as transformative of the security scene as now embedded in world order and arms control as a series of more or less helpful reformist moves that stabilize and manage the role of nuclear weaponry in contemporary security structures. These arms control moves are made without posing any challenge to the fundamental distribution of power and authority in the world, and tend to make such a challenge appear less urgent, and even of questionable benefit.

From this perspective, then, a critique of the NPT regime as the preeminent stabilizing structure in relation to nuclearism seems justified. It provides the basis for setting forth an argument that the NPT approach is antagonistic, rather than complementary to denuclearization and disarmament. This is contrary to the way the NPT regime is generally explained and affirmed, which is as step toward achieving nuclear disarmament, and an indispensable place holding measure to reduce the risks of nuclear war. It is true that inhibiting the spread of nuclear weaponry seems to be in the spirit of what might be described as horizontal denuclearization, although even this limited assertion is not without controversy. The recently deceased Kenneth Waltz with impeccable logical consistency seemed to believe so deeply in rational decision making as embedded in the doctrine of deterrence that he favored the spread of nuclear weapons to additional countries because it would tend to make governments more cautious, and hence nuclear war less likely. Others, including myself, are more ambivalent about such an out of the box position, worrying about any further spread of the bomb, but thinking that only when there is a sense of a loss of control in the capitals of the nuclear nine will there arise a sufficient interest in denuclearization as a genuine political project (as distinct from more or less sincere rhetorical posturing). Obama’s Prague speech in 2009 still seems sincere as of the time of its delivery, but we need to notice that it lived and died as rhetoric because it lacked legs, that is, the rhetoric was never converted into a political project. In contrast, the NPT is definitely a political project and enjoys strong geopolitical support.

 

The policy emphasis on horizontal denuclearization has the sometimes intended and sometimes unintended effect of shifting public attention away from the greater problematique of promoting vertical declearization, that is, inducing the nuclear weapons states to enter a diplomatic process that would finish with zero nuclear weapons in their military arsenals. Again such a distinction, while useful for some purposes, employs the artificial binary of horizontal and vertical, and misses the nuance actuality of hybridity and interactivity, or what Blow describes as ‘fluidity’ or others have been delimiting by dwelling on the fifty shades of gray positioned between the black and white of conventional thinking. Decuclearization for each of the nuclear nine raises different issues depending on the outlook of their leadership, the political context, and the ease of making alternative non-nuclear security arrangements, as well as their interaction with one another and with neighboring states.

 

Perhaps, the most salient false dichotomy of all is between ‘nuclear weapons states’ and ‘non-nuclear weapons states.’ When countries have the enrichment facilities and materials, as well as the technical knowhow, they possess a breakout capacity that could materialize in a matter of months, or maybe already exists as a result of a secret program (as was the case with Israel). Yet without acquiring and exploding a bomb such states retain their status as non-nuclear. Israel is treated as belonging to the nuclear nine because its possession of the weaponry has been documented convincingly, although it has never officially admitted its possession of the weaponry, and keeps vindictively punishing Mordechai Vanunu because he exposed the truth about Israel’s nuclear program. North Korea may not have assembled a bomb when it was charged with violating NPT constraints. Germany and Japan, and perhaps a few other countries, are latent or threshold nuclear states, although their overt posture is one of being ‘non-nuclear.’ The fluidity of reality makes the binary classification, at best, a first approximation. At worst, it creates a deceptive distance between states that have nuclear weapons and those that do not presently possess the weaponry, but could do so in a short time. Or between those that pretend not to have the weapon but actually have it and those that pretend to have it but do not have it. The binary classification ignores the many differences with respect to nuclear weapons and doctrines surrounding use of the nuclear nine, but also the many nuances of technical and political proximity to nuclearism of non-nuclear states. Some states have allowed deployments of nuclear weapons on their territory, others have prohibited ships carrying nuclear weapons from entering their ports for even a short visit.

 

 

The situation becomes even more complicated if inquiry is extended to secondary political effects. It has been argued that vertical denuclearization undertaken by the United States would likely lead to horizontal nuclearization on the part of Japan and South Korea. Contrariwise, it is reasoned in strategic circles that the nuclearization of countries in Asia and the Middle East could induce vertical denuclearization on a systemic basis to avoid the instabilities and raised risks of a growing number of hands on the nuclear trigger, and to clear the way for regional securitization based on American conventional military dominance. Worries about continued proliferation combined with the realization that American military power would become more usable and effective in a world without nuclear weapons even led such realist mainstays as George Shultz, Henry Kissinger, William Perry, and Sam Nunn to support nuclear disarmament in the normally militarist pages of the Wall Street Journal. [“A World Free of Nuclear Weapons,” Wall Street Journal, Jan 4, 2007.]

 

A similar line of reasoning applies to the relationship between nuclear disarmament and conventional disarmament. Focusing on nuclear disarmament as a distinct undertaking avoids difficult issues of whether disarmament rests on a premise of pacifism and thus would be imprudent in view of centuries of political consciousness supporting the right and practical necessity of political communities acting in self-defense to uphold their security against external threats. This logic of a collective right to bear arms underlies the modern system of state-centric world order that conceives of security within bounded territorial entities as integrally linked to the war system.

 

At the same time, as discussed in relation to Gorbachev’s vision of nuclear disarmament discussed in The Nuclear Challenge (3), it is unrealistic to think of deep disarmament without introducing demilitarization into the process. Otherwise as Gorbachev points out, governments will be reluctant to take the last steps in a denuclearizing process if they understand that at the zero point for nuclear weapons, the world will be confronted by American military dominance, already prefigured by the U.S. government spending almost as much to maintain and develop its military machine as the entire rest of the world. For meaningful commentary it is necessary to view different types of disarmament as complements rather than as alternatives, and not to ignore different levels of interactivity. Although both Gorbachev and the Shultz group advocate nuclear disarmament, their geopolitical agendas are at opposite ends of the political spectrum. Gorbachev seeks a demilitarized world of equally secure sovereign states whereas the Shultz group favors stabilizing American military hegemony.

 

One of the most frequently identified binary is that between nuclear weapons and nuclear energy or power. This binary is built into the NPT regime, giving non-nuclear states reassurances in Article IV that by foregoing the bomb they will not be denied the supposed benefits of nuclear energy, and that they can look forward to a denuclearized world as the nuclear weapons states accepted a legal duty to negotiate disarmament in Article VI. And then in Article X parties to the NPT are given a right to withdraw after giving three months notice in response to security imperatives, a right that can be overridden by the geopolitical insistence on non-acquisition of the weaponry as with Iran. The reality of the nuclear world subverts such a binary in a number of ways. If a nuclear energy program is established it creates conditions that makes it easier to cross the weapons threshold by having the capability to produce enriched uranium or plutonium and the technical knowhow to produce a nuclear warhead. Also, the kind of nuclear accidents that occurred at Chernobyl and Fukushima suggest that nuclear facilities are nuclear time bombs awaiting an igniting natural disaster or human error. Such nuclear power plants are also could be a priority target for unscrupulous political extremists. These nuclear facilities pose unknown risks of devastation that could terrorize millions of people, and spread intense fear across the globe following the release of large amounts of intense radiation. Vagaries of air currents might determine whether communities become afflicted or not.

 

And then there are issues of geopolitical fallout stemming from managing the NPT regime. Instead of the NPT contributing to stability, its maintenance can provide the rationale for recourse to threats and uses of aggressive force. The 2003 invasion and occupation of Iraq was mainly justified as a NPT enforcement operation as was the imposition of damaging international sanctions on Iran coupled with frequent reiterations of the military option by American and Israeli leaders. In effect, the alleged need to prevent certain instances of unwanted proliferation is providing political actors, especially the United States, with geopolitical justifications for costly unlawful wars that displace millions and disrupt existing political arrangements. Characterizing nuclear energy as ‘peaceful’ does not seem compatible with the spirit or substance of a fully denuclearized world.

 

There is an even deeper divide that needs to be bridged conceptually and practically. Can drastic forms of demilitarization reliably occur without also addressing poverty and gross disparities of individual and collective existence? And can such socio-economic issues be resolved without a combination of life style adjustments and the dismantling of neoliberal capitalism as the ideological linchpin of economic globalization? And are any of these radical changes worth contemplating without the inclusion on the policy agenda of global warming and threats to biodiversity? And on and on.

 

What I favor, in effect, is retaining binaries to clear up basic choices that can be better understood without the complexities and subtleties of fluidity, but also moving toward a second level of interpretation that is immersed in the existential realities of the lifeworld. On this level, evaluation would be contextual and configurative, and not be pre-judged or appraised by reference to a reductive binary. From such angles, the NPT would be seen as both helpful and harmful, making its assessment change with time and context. The NPT may have, on balance, been a constructive step in 1968 when it was possible to believe that inhibiting proliferation would give nuclear disarmament time and space to establish a more favorable climate for negotiations. By way of comparison, in 2015 the world possesses overwhelming evidence suggesting the disinclination of the nuclear weapons states to consider disarmament as a serious policy option. Such an understanding may shift the balance sufficiently to make it now more constructive to repudiate, or at least challenge the NPT regime. Such an altered approach seems quite reasonable in light of the militarist and unlawful tactics of implementation employed to victimize the peoples of Iraq and Iran.

 

The question of how to think about nuclear issues is itself daunting, yet crucial. One way to go about it is the recognition of distinct discourses with some sensitivity to overlaps between binary and contextual or configurative forms of analysis as discussed above. Among the substantive discourses that seem particularly useful for the promotion of denuclearization and disarmament the following can be commended: international relations; geopolitics; international law; international morality; denuclearization; demilitarization; securitization. Obviously, the path to nuclear zero is long with many twists and turns, and where it will lead remains unknown. What is known is that the struggle for nuclear disarmament, denuclearization, and demilitarization bears heavily on the destinies of the human species, and we each have a responsibility to become a participant rather than a spectator.

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The Nuclear Challenge (5): 70 Years After Hiroshima and Nagasaki: The Weird ‘Good Fortune’ of Tsutomu Yamaguchi

26 Aug

 

Over the years I have often thought about the political and moral consciousness associated with the atomic targeting of Japanese cities, as well as the absence of any expression of official remorse for the suffering caused and the precedent set. I was struck by the decision to bomb Hiroshima instead of Kyoto out of respect for Kyoto’s cultural heritage, and by giving the flight crew orders not to drop the second bomb on Nagasaki if weather conditions obscured the city center. It was the then Secretary of War, Henry L Stimson, who is credited with making the successful plea to the president to spare Kyoto. Stimson, an American patrician public servant, had visited Kyoto twice in the 1920s, and was impressed by the city as a tourist, and also was reported to have been concerned that America’s postwar reputation would suffer if it were to destroy such a place of cultural heritage. With Nagasaki, the crew despite its orders and the presence of cloud cover decided to launch the atomic attack, reportedly worrying that retaining the bomb would be too dangerous as the weapon because of its weight might detonate in the course of landing at its American airbase and no prior authorization had been given to drop the bomb into the sea.

 

In retrospect, we come to realize that the urban specifics of this most apocalyptic of decisions by the leadership of the American government and its military personnel could have turned out differently so far as the identity of the Japanese victims is concerned. This means that the tragic fate experienced by the residents of Hiroshima and Nagasaki was determined in its specificity by the arbitrariness, perhaps inevitably so, surrounding the logistics and politics of a target selection in a distant place of unknowing.

 

Of course, the criminality associated with the use of such a weapon of mass terror exists quite independently of whether this or that Japanese city had been subject to an atomic attack. It is this criminality that makes the absence of remorse a continuing blemish on the American way of conducting itself in World War II. In one sense, the American justification at the time based on considerations of ‘military necessity’ and the validity of all tactics associated with winning an ongoing war was consistent with the still prevailing militarized ethics of warfare. What might have set these atomic bombs apart

was their scale of destructivity and its accompanying radiation inflicting cruel

injury and sickness long after the guns of war fell silent, as well as setting a precedent favoring use under wartime pressures.

 

Viewed less as an operational matter of how and where, and more as a political question of why, we become sensitized to the apparent relevance of sinister geopolitical maneuvers that underlay the decision to use the bomb against Japanese cities rather than to rely on diplomacy to end the war or at least to make this radical innovation in destructiveness by way of an exhibition in an uninhabited part of the ocean. The U.S. Government at the time partly wanted to end the war with Japan as rapidly as possible so that it would not be necessary to include the Soviet Union in the negotiation of a Pacific peace in a manner similar to the Yalta and Potsdam diplomatic process among the victors in the war that produced a divided and quasi-occupied Europe in the aftermath of the German collapse. It also seemed to be the case that the American leaders, already looking ahead toward an impending rivalry with Moscow, were intent on exhibiting the full destructive capability of their super-weapon. It seemed irrelevant to mainstream political consciousness given the war atmosphere of limitless self-justification that such decisions behind closed doors translated into ten of thousands of crushed and radiated victims killed or left to die amid the ruins of these two Japanese cities, devastated beyond recognition by such geopolitical maneuvers that have still never been exposed to the sunlight of full disclosure. Instead, the spin masters of the day wove a diversionary tale of lives saved through the avoidance of a supposedly necessary invasion of Japan that was calculated to cause the death of at least a million Americans and Japanese. With unbounded cynicism, the decision to drop atomic bombs on Hiroshima and Nagasaki, while being aware that Japanese diplomats were sending peacemaking signals is another facet of this most shocking of horror stories associated with World War II. Such stories have yet to be fairly told or rescued from a continuing struggle between competing narratives of motives and context.

 

Yet Japan, although mercilessly victimized during the war, was far from innocent. Its militarism led to aggressive warfare and conquest throughout Asia, and inscribed memories of occupation cruelty that linger vividly even now in countries such as China, Korea, the Philippines, Indonesia. And of course, it was Japan’s surprise attack on Pearl Harbor that created the basis for America’s formal entry into the war against both Japan and Germany. At least, in the aftermath of the war Japan has acknowledged, although ambiguously at times, its own responsibilities for aggression that created the chain of events that led to the dropping of the atomic bombs, whatever its principal explanation, whether geopolitical, vindictive, or military. In the historic Shimoda case brought by atomic survivors in a Japanese court, seeking symbolic repudiation of the atomic attacks and only nominal damage for personal injury and suffering to underscore their anti-nuclear animus. The court invited expert testimony from distinguished international law experts in Japan, who concluded that the use of atomic bombs against Hiroshima and Nagasaki indeed violated legal prohibitions against indiscriminate, poisonous, and inhumane weaponry, and thus the attacks violated existing customary international law even absent any treaty explicitly prohibiting atomic weapons. What the Shimoda court did so impressively, aside from providing the world with its first and last judicial assessment of the bombings of Hiroshima and Nagasaki, was to offer their conclusions without moralistic posturing. This outlook of contrition was confirmed by issuing this decision condemning the use of atomic weapons on December 7th, the 22nd anniversary of the bombing of Pearl Harbor.

 

The experience of persons exposed to an atomic attack is easier to interpret than the public rationale due to the concreteness of individual experience, and the physicality of the harm. Nevertheless, there is a zone of ambiguity due to the uncertainty of the connections between exposure to the radiation generated by the bomb and the rise in underlying cancer rates. We can never explain with certitude many particular cases, especially if the symptoms are deferred to a time remote from the event. This may account for the term hibakusha used to set apart the survivors of Hiroshima and Nagasaki from the rest of the Japanese population. To qualify as a hibakusha (in literal Japanese translation, ‘explosion affected people’) a person had to prove that she or he was physically present in one of the two cities at the time of the blasts so as to be eligible for government compensation and assistance. It was definitely not socially desirable to be perceived as a hibakusha, and many survivors did their best to hide this identity to avoid severe discrimination against themselves and even their children, which took several forms, especially employment and marriage. This discrimination was rationalized by the widespread acceptance of the fallacious belief that those exposed to radiation were contagious or genetically affected so that future generations would be similarly afflicted. As of 2015, there are 185,519 hibakusha known to be alive, 1% of whom suffer from radiation sickness. Additionally, separate memorials to deceased hibakusha list over 297,000 in Hiroshima and just under 169,00 in Nagasaki. Among the cruel ironies associated with having been in one of these cities on those fateful days was the mystifying combination of survivor guilt and social ostracism that further burdened the strange destiny of what survival must meant to each hibakusha.

 

There were also some uncanny ironies associated with such a survival. Perhaps the most extreme irony was the strange fact that an estimated 165 persons experienced both attacks and qualified as what came to be called double hibakusha (a documentary film Twice Bombed: The Double Atomic Bombed of Hiroshima and Nagasaki (2006) depicts this grotesque phenomenon). And of these, the strangest case of all, at least that is somewhat publicized, is that of Tsutomu Yamaguchi.

 

Mr. Yamaguchi was in Hiroshima on August 6th as part of a business trip on behalf of his employer, Mitsubishi Heavy Industries, when the atom bomb exploded. He was at an office meeting 1.8 miles from ground zero, and suffered serious burn injuries on his left side, but not so serious that he could not return to his home in Nagasaki the next morning. What is somewhat startling is that Yamaguchi went to work in Nagasaki on the following day despite his condition, and on August 9th told his officemates about the amazing fact that a single bomb had destroyed the entire city of Hiroshima. His boss reacted by telling him he was crazy to believe such a ridiculous thing, and at that moment of vengeful irony the Nagasaki bomb was detonated, repeating the awful saga of Hiroshima, and validating Yamaguchi’s story greeted with such skepticism moments earlier.

 

Yamaguchi, a draftsman who designed tanker ships, survived both attacks despite sustaining injuries in each, and evidently “thought Japan should never start a war.” But he also is reported to have considered at some point killing his family with sleeping pills if Japan lost the war. Yamaguchi died of stomach cancer in 2010 at the age of 93, and his long life exemplifies the ironic nature of what strikes us decades later as a remarkable survival story posing an enduring question decades later to those of us detached from the immediacy of such calamities: was Yamaguchi supremely unlucky to have been in the only two cities ever attacked with atomic weapons or was he extraordinarily lucky to have survived both attacks and lived to the age of 93? Rarely have good and bad fortuitous experience been so intermixed, and perhaps the word ‘lucky’ is too casual given the epochal significance of this dreadful dawn of the nuclear age.

 

Not until 2009, a year before his death, did the Japanese government officially decide to recognize Tsutomu Yamaguchi as the first person certified to be a double hibakusha. Apparently even the authentication of atomic victimization became its own further ordeal thanks to the draconian workings of the Japanese state bureaucracy.

 

While hibakusha remain alive, we are movingly reminded that the tragedies endured in 1945 remain lived realities that should never be interred within a larger impersonal assessment of the military policies that ended the war. We are also reminded of the failure of the organized world community to take the necessary and possible steps to ensure that there are no future generations of hibakusha.

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The Nuclear Challenge (4): 70 Years After Hiroshima and Nagasaki-The Iran Agreement in Perspective

24 Aug

The Nuclear Challenge (4): 70 Years After Hiroshima and Nagasaki-The Iran Agreement in Perspective

 

Without question the P5 +1 nuclear agreement with Iran is a vital move toward peace and stability in the Middle East, a step back from the maelstrom of conflict that is roiling much of the region, and leaving what stability there is among sovereign states under the control of various absolutisms that repress and exploit their own populations.

 

At the same time before congratulating the negotiators and building a strong rationale for yet another Nobel Peace Prize given to architects of Western diplomacy, we should pause and peer behind the curtain of hegemonic confusion embellishing a more dubious statecraft by an ever compliant mainstream media. If we pull back the curtain, what do we see?

 

First of all, we should immediately recognize that the most sensible agreement for the region and the world would have included Israel’s nuclear weapons arsenal in the negotiating mix, and yielded a unanimous call for responding to nuclear anxieties with a Middle East Nuclear Weapons Free Zone. As far I know, every government but Israel in the region, and this includes Iran and Saudi Arabia, favors regional nuclear disarmament, and is decidely uncomfortable with Israel as the sole nuclear weapons state in the region.

 

Many may feel that I am dreaming when I raise this point, but without the clarifying impact of dreams, political reality remains an opaque spin chamber. In a decent world order that was built on a foundation of law and equality among sovereign states with respect to the challenge of nuclear weapons there would be no double standards and no discriminatory policies. When reflecting on the current emphasis on reaching an agreement with Iran there is a political unwillingness to widen the optic for discussion, much less for implementation, of the most rational and ethically coherent approach to denuclearization of the Middle East.

 

If we are so obtuse or arrogant to ask ‘why?’ this is so there are several explanations. Undoubtedly, the most illuminating response is to point out that to include Israel’s nuclear weaponry in denuclearization diplomacy would violate ‘the special relationship’ binding the United State to Israel, although not vice versa as the Netanyahu/AIPAC outrageous campaign to undermine the P5 +1 initiative unmistakably demonstrates. Obama’s refusal to go along with Israel’s insistence on far tighter restraints on Iran as a precondition for its acceptance of an agreement is straining the special relationship and weakening the overwhelming support it had previously enjoyed among Jews in the United States. These tensions also reveal that even this most special of special arrangements has its outer limits! Yet it seems evident that these have yet to be discovered by the majority of the U.S. Congress.

 

Secondly, Iran is targeted by the agreement as a pariah state that is being subjected to a more stringent regime of inspection and restraint than has ever been imposed on any other non-nuclear state. Yet what has Iran done internationally to deserve such harsh treatment? In the period since the Islamic Republic took control of the country in 1979, Iran was aggressively attacked by Saddam Hussein’s Iraq in 1980 with the encouragement and blessings of the United States Government, resulting in approximately one million battlefield deaths in the eight-year war to both sides. In the last decade or so, Iran has been the acknowledged target of destabilizing covert violent acts by the United States and Israel, including targeted assassinations of nuclear scientists and cyber efforts to disrupt Iran’s nuclear program. Additionally, Israel has made a series of unlawful threats of military attack and the United States has exhibits Martian solidarity by uttering somewhat more veiled assertions of its residual reliance on a military option, recently rearticulated by Obama as ‘war’ being the only alternative to the agreement should it be rejected by the United States.

 

We should not forget that Iran that is surrounded by belligerent adversaries openly talking about the feasibility of military attacks upon their country under present world conditions. From a purely realist perspective it is Iran that has one of the most credible security claims ever made to acquire nuclear weapons as a deterrent weapon in response to Israeli aggressiveness reinforced by American backing. After all, it has been reliably disclosed and documented that Israel on more than one occasion was on the verge of attacking Iraq, backing off at the last minute due only to splits within the Israeli cabinet over issues of feasibility and fears of adverse consequences.

 

This whole discourse on Iran’s nuclear program is notable for presuming that policy options can be selected by its adversaries without any consideration of the relevance of international law. Even supposing that Iran was, in fact, overtly seeking a nuclear weapon, and approaching a threshold of acquisition, this set of conditions would not validate recourse to force. There is no foundation whatsoever in international law for launching an attack to preempt another country from acquiring nuclear weapons. The U.S. relied on such a pretext to justify its attack on Iraq in 2003, but such an argument was rejected by the UN Security Council, and the American led attack and occupation were widely viewed as contrary to international law and the UN Charter. To launch a non-defensive attack on Iran would be a flagrant violation of Article 2(4) of the UN Charter and of the norm prohibiting recourse to aggressive war used to convict German and Japanese surviving leaders after World War II of state crime. It is well to acknowledge that Iran succumbed to a kind of geopolitical blackmail by accepting this one-sided agreement. It is hardly surprising that the logic of geopolitics triumphed over respect for international law, and yet the fact that the liberal media and world public opinion smile so gratefully, apparently not realizing what an unhealthy an atmosphere exists, is discouraging, and not a good omen for the future.

 

Maybe there could be a case for bending, or even breaking international law, if Iran was genuinely posing a plausible threat that could not be met through diplomacy and defensive capabilities. But the realities are quite different. Iran has been the target of unlawful threats and various forms of covert intervention, and has responded with responsible caution, if at all. To reinforce this one-sided experience of insecurity with this kind of agreement sets the unfortunate perverse precedent of treating the victim of an unlawful intervention as the culprit justifying international sanctions, and possibly a future military onslaught. This represents a perversion of justice, as well as exhibiting a fundamental disregard of international law.

 

This reasoning is not meant to exonerate Iran from severe criticism for its internal failures to uphold the human rights of its citizens or for its continued punitive action against the leaders of the Green Revolution. It is important to realize that regulating recourse to international uses of force has been deliberately separated in the UN Charter from interfering in state/society relations absent the commission of severe crimes against humanity or genocide, and a green light is given by the UN Security Council for what amounts to ‘humanitarian intervention,’ recently justified by reference to the emergent international norm of a ‘right to protect’ or R2P. Such a R2P justification was put forward and controversially enacted in Libya in 2011.

 

True, during the Ahmedinejad years irresponsible fiery and provocative language was used by Tehran with reference to Israel, including repeated calls for the abolition of the Zionist project. The language used by Ahmedinejad was given its most inflammatory twist by Israeli translations of the Farsi original. Read more objectively, it was not Jews as such that were the subject of the invective, or even Israel, but Zionism and its belligerent behavior in the region, especially its refusal over the course of decades to achieve a sustainable peace with the Palestinian people, and on the contrary, its policy of continual land grabbing in Palestine to make peace between the two peoples an increasingly distant prospect of diminishing relevance in the domains of practical diplomacy.

 

The principal point of this analysis is to show that this agreement reflects the primacy of geopolitics, the neglect of international law, the impact of the US/Israel special relationship, and yet despite these drawbacks, it is still the best that supporters of peace and stability can hope for under present conditions of world order. Such a reality is occluded by the presentation of the debate in the United States as mainly the exaggerated mini-dramas associated with pressuring key members of Congress to vote for or against the agreement and engaging in sophisticated discussions as to whether the constraints imposed by the agreement on Iran’s nuclear program, although the strongest ever imposed, are still as strong as Obama claims or as some uncertain Congress people demand. As argued here, support for the agreement is overwhelmingly in the national, global, regional, and human interest, but this assessment does not mean we should view world order through the distorting lens of heavily rose-tinted glasses.

 

This nuclear agreement reflects where we are in dealing with global crises, not where we should be. It is this distinction that is suppressed by the liberal media and government spokespersons that tout the agreement as an extraordinary achievement of international diplomacy. If we value international law, global justice, and indeed the future of the human species, then the distinction between the realm of the ‘feasible’ and the realm of the ‘desirable’ deserves energetic critical exposure by all of us who fancy ourselves as citizen pilgrims, that is, devotees of human and natural survival, as well as of global justice and human rights.

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Why Congress Must Support the Nuclear Agreement With Iran

22 Aug

 

[Prefatory Note: this post republishes an article appearing in the Huffinton Post on Aug. 21, 2015. It is jointly written with Akbar Ganji, an important human rights defender who spent several years for his efforts in an Iranian jail. Ganji is a leading commentator on Iranian affairs and world issues, and recipient of an International Press Association World Press Hero award. Our articles stresses the critical importance of obtaining American approval of the nuclear agreement.] 

 

 

Why Congress Must Support the Nuclear Agreement With Iran

 

Akbar Ganji & Richard Falk

 

What should have been an occasion of diplomatic rejoicing has turned into an ugly partisan struggle over whether or not the international agreement negotiated with Iran will or will not be approved by the United States Government. The extremely troublesome obstruction to the agreement is centered in the U.S. Congress where anti-Obama Republicans are teaming up with pro-Netanyahu Democrats to create uncertainty as to whether the arrangments negotiated with such persistence by the five permanent members of the UN Security Council together with Germany will be undermined by this unprecedented leverage being exerted by Israel on the internal governmental processes in America. It should be appreciated that the agreement has been unanimously endorsed by a positive vote of all 15 members of the Security Council, a rarity in UN politics for an issue of this geopolitical magnitude.

 

In the end this debate raises some fundamental questions about American domestic politics along with its leadership in the Middle East and indeed, the credibility of its global role. Here is an agreement, restricting Iran’s freedom of action with regard to its nuclear program beyond that imposed on any other country ever, clearly serving the national interest of the United States in Middle Eastern stability, an outcome of dedicated efforts by the President and Secretary of State to find a way to avoid both another war in the region and a dangerous nuclear arms race.

 

That such a diplomatic breakthrough is being so furiously opposed posts a warning that irrationality is mounting a serious challenge to common sense and self-interest. As Obama has noted on several occasions he knows of no other leader that interferes so directly in the national policy debates of a foreign country than deos Netanyahu( 1 and 2 ) . Britain’s Foreign Secretary Philip Hammond observed: “Israel wants a permanent state of stand-off and I don’t believe that’s in the interests of the region. I don’t believe it’s in our interest.”

 

Israel has used all the influence at its disposal to block approval, mobilizing rich ultra-Zionist donors in the U.S. to create a war chest of $20 milion and relying on AIPAC (American-Israel Public Affairs Committee) to twist enough legislative arms to override an expected Obama veto if the agreement is turned down by a majority in the two houses of Congress. This drive has been led by the ever belligerent Israeli Prime Minister, Benjamin Netanyahu, but it is disturbing to realize that all the leading political parties in Israel are united in their opposition to the agreement. This alone tells us the degree to which political attitudes in Israel are out of sinc with those prevailing in the rest of the Middle East, and indeed the world.

 

As such, there is a moment of truth for the relationship between the United States and Israel. A rejection of the agreement will raise serious questions about the capacity of this country to pursue a foreign policy that reflects its best interests and dominant values. It will also raise doubts about whether it is capable of constructive leadership in the Middle East and the world. If the agreement is approved, as we firmly believe it should be, it will not only confirm the autonomy of national institutions in the United States but show that the alliance relationship with Israel can withstand disagreement when vital issues are at stake.

 

The Iran Problem

 

The Islamic Republic of Iran is a religious dictatorship that systematically violates the rights of its citizens, and has demonstrated enmity toward the United States since the 1979 Revolution. Despite this, compared with other Islamic countries of the Middle East and North Africa, it is far better situated to realize democracy and respect human rights.

 

Iran is a stable nation that has not invaded another country for nearly 300 years. Its population has nearly more than doubled since the 1979 Revolution, but its number of university students has increased by a factor of 27, with more than 60 percent of them female. The most important international writings of Western liberal, feminist, and secular thinkers have been translated into Farsi, including the work of some of the most important Jewish thinkers. Iran has a large middle class, and is the only country in the region, aside from Turkey, that has the prerequisites for a transition to democracy despite problematic features of the relations between state and society.

 

For over 22 years Netanyahu has been “making” nuclear bombs for Iran, continuously claiming that Iran is only a short time away from having the bomb. The predictions have turned out to be false and inflammatory, but his desire and appetite for war with Iran seems only to have increased over time. The nuclear agreement with Iran, which has imposed severe restrictions on its peaceful nuclear program despite going well beyond what the 1968 Nonproliferation Treaty requires, has agitated Netanyahu and the political mainstream in Israel. There are several explanations of this irrational Israeli response to an agreement that help all in the region. Netanyahu has engaged in fear-mongering that has mobilized Israeli society. Beyond this, a focus on Iran’s nuclear program draws attention away from other difficult problems confronting Israel,, including the Palestinian problem and its own covertly acquired arsenal of nuclear weapons.

 

National interests of the United States or Netanyahu’s political interests?

 

As President Obama has repeatedly said, the only alternative to the nuclear agreement with Iran is war. But, this would be a war that Israel wants the United States to fight on its behalf. Military attacks on Iran will almost certainly produce an extremely strong reaction by Iran and other nations in that region, a process likely to set the entire Middle East on fire. Iran with its population of 78 million will likely degenerate into another Iraq and Syria, and extremists from throughout the world will stream across its borders to join the struggle. How can risking such an outcome possibly be in the interests of the United States?

 

Approving the nuclear agreement with Iran is by far the least costly solution to whatever problems can be associated with Iran’s nuclear program, and approval will also promote peace and stability in the Middle East. With this background in mind Congress should clearly approve the agreement, and it is also why the citizenry of the United States should welcome it. After approval,, the United States would find itself in an excellent position, perhaps in coopeation with other governments to help address other problems on the Middle East agenda by proposing an ambitious diplomatic package with the following essential elements:

 

Guaranteeing present national borders through resolutions backed by the United Nations Security Council

 

Elimination of all weapons of mass destruction from the region through the establishment of a nuclear free zone in the whole of the Middle East

 

Resolving the Palestinian problem encouraging two-state diplomacy premised on the right of the Palestinian people to form their own independent, viable and contiguous state on all territories occupied since 1967, and if diplomacy fails, then more coercive measures should be imposed by action of the United Nations

 

A collective security and mutual non-aggression treaty signed by all the Middle Eastern nations

Investment in the economic and political development of the region combined with the regulation of arms sales

Moving forward from the agreement it is important to appreciate that peace is a common value envisioned and shared by Jews, Muslims, and Christians:

“They will beat their swords into plowshares and their spears into pruning hooks. Nation will not take up sword against nation, nor will they train for war anymore” (Isaiah 2:4).

“Blessed are the peacemakers, for they will be called children of God”(Matthew 5:9).

“Making peace is the best” (an-Nissa 128) and “O, you who believe! Fulfill the promises and covenants made [by you]” (al-Maidah 1).

 

 

For too long these shared values, deeply embedded in the worldviews of these civilizational perspectives, have been ignored, even repudiated. The nuclear agreement with Iran creates the opportunity to move the flow of history in better directions. Such an opportunity must not be lost. If lost, the United States and Israel would be morally, politically, and legally responsible for whatever harm befalls the region and the world.

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Alliance Blackmail: Israel’s Opposition to the Iran Nuclear Agreement

26 Jul

 

The Vienna Agreement [formally labeled by diplospeak as the Joint Comprehensive Plan of Action (JCPOA)] reached by the P5 + 1 on July 14, 2015 has been aptly hailed as a political breakthrough, not only because it calms regional worries about Iran’s nuclear program, but more so because it has the potential to remove an ugly dimension of conflict from the regional turmoil in the Middle East. Such a diplomatic success, after so many years of frustration, chaos, and strife, should be an occasion for hope and celebration, and in many venues it is, although not in Israel or Saudi Arabia or among the neo-con kingpins in Washington think tanks and their numerous Republican allies in the U.S. Congress.

 

Which side will prevail in this dysfunctional encounter is presently obscure, which itself is an indication of the dismal conditions of political life in America. Many unanswered and unanswerable questions bedevil the process: Will this agreement limiting Iran’s nuclear program be approved, and then implemented, or will it be blocked or unacceptably revised before coming into operation, or later on? Will Iran become associated more openly with Western attempts to defeat ISIS and in the desperate need to bring peace and humane governance to Syria where the people of the country have endured such severe suffering since 2011? Will these developments allow Iran to be treated as a normal state within regional and global political settings, and if this reduced atmosphere of external tension occurs will it also have moderating impacts on the internal governing process in Iran? Or will Israel and its allies succeed in keeping Iran in ‘a terrorist cage’ reserved for pariah states, and continue to insist upon a military option to wage war against Iran? Will Israel receive ‘compensation’ in the form of enhanced military assistance from the United States to demonstrate Washington’s unwavering commitment to the alliance? Will Israel’s secretly acquired nuclear weapons capability be called into question in an effort to achieve denuclearization, which is more consistent with peace and morality than calling into question Iran’s threat of nuclear proliferation? Further afield, will this gap between the American/European and Israeli/Gulf approach lead over time to new geopolitical alignments that broaden beyond policy toward Iran’s nuclear program?

 

At the core these many concerns, is the nature and health of the United States/Israel relationship, and more broadly the appalling balance of forces that controls political life from the governmental hub in Washington. The alliance bonding between the two countries have been called ‘unconditional’ and even ‘eternal’ by Obama, words echoed by every American public figure with any credible mainstream political ambitions, currently including even the supposed radical presidential aspirant, Bernie Sanders. And yet that is not nearly good enough for AIPAC and the Adelson-led legions pro-Israeli fanatics, which periodically lambaste this strongly pro-Israeli president for alleged betrayals of Israel’s most vital security interests, and generally take derisive issue with the slightest sign of accommodationist diplomacy in the region.

The most illuminating discussion of these issues from Tel Aviv’s perspective is undoubtedly the recently published memoir of Israel’s American born ambassador to the United States, Michael B. Oren, who served in this key role during the period 2009-2013. Oren was elected to the Knesset earlier this year representing, Kulanu, a small centrist Israeli party focused on economic and social reform. Oren’s bestselling book, Ally: Managing the America/Israel Divide (Random House, 2015) succeeds in combining an intelligent insider’s account of the strained relations between the Netanyahu government and the Obama presidency with frequent vain and self-aggrandizing autobiographical reflections in the spirit of ‘Look Ma, I am dancing with the Queen,’ reinforced by analysis that justifies every aspect of Israel’s extreme right-wing and militarist approaches to security policy and diplomacy. To understand better the Israeli worldview that mixes genuine fears of its enemies with arrogant behavior toward its friends there is no more instructive book.

 

An American–born Jew, Oren conceived of himself both as a product of and an emissary to the Jewish diaspora in the United States, diplomat discharging his conventional government-to-government diplomatic role. Above all, Oren during his tenure in office (2009-2013) apparently did his best to keep political tensions between these two countries and their personally uncongenial leaders below the surface while unreservedly supporting the public claim that this special alliance relationship serves the interests and values of both countries. Oren ends his book with a dramatic assertion of this overlap: “Two countries, one dream.” Perhaps even more disturbing than the rationalization of all that is Zionist and Israeli throughout the book is the seeming sincerity of Oren’s sustained advocacy. A bit of cynicism here and there might have made Oren less of a self-anointed Manchurian candidate.

 

Given this posture of dedicated advocate, it is hardly surprising that Oren is a harsh opponent of those liberal groups that question AIPAC’s constructive influence on American policy debates or that he views initiatives critical of Israel, such as the Goldstone Report or the BDS campaign, as dangerous, disreputable, and damaging threats to Israel’s security and wellbeing. Even J-Street, harmless as it has turned out to be, was viewed as an anathema to Oren who turned down its invitations and regarded it as somehow exhibiting a leftist posture toward Israel. Only later when it became domesticated by denouncing the Goldstone Report and generally supportive of Israel’s use of force against Gaza did Oren feel it had joined what he calls ‘the mainstream’ of Beltway politics, which in his slanted vision is where he situates AIPAC and the U.S. Congress. Quite incredibly, even Martin Indyk, early in his career an AIPAC researcher and more recently the American ambassador to Israel, was viewed as a poor appointment as Special Envoy to the Kerry peace talks of 2013-2014 because he did not have a cordial enough relationship with Netanyahu. From my perspective, it was also a poor appointment, but for opposite reasons–an in-your-face display of pro-Israeli partisanship that undermined any credibility the United States claimed as a responsible intermediary at the resumed negotiations between Israel and the Palestinian Authority.

 

Central to Oren’s presentation of Israeli behavior is the one-way street that he treats as embedded in the word ‘ally,’ which for Oren expresses the peculiar and generally unacknowledged character of this ‘special relationship.’ It is well illustrated by Oren’s support for Israel’s effort led with undisguised bluntness by Netanyahu to undermine Obama capacity to negotiate a nuclear arrangement with Iran despite JCPOA being strongly endorsed as in the national interest of the United States, but also of France, United Kingdom, China, Russia, and Germany. The agreement also seems beneficial for the Middle East as a whole and indeed for the world. Such an encompassing consensus endorsing the elaborate arrangement negotiated was exhibited in a resolution of support adopted by the UN Security Council [SC Resolution 2231, 20 July 2015] by an unusual unanimous vote. Oren still complains bitterly that Israel’s rejectionist views toward an agreement with Iran were in the end circumvented, at least so far. At one point Oren even suggests that Israel was better off when the inflammatory Mahmoud Ahmadinejad was Iran’s president rather than the more measured Hassan Rouhani. In his view, Iran remains just as aggressively disposed toward Israel despite the more moderate language of the present leadership, but that the West has been falsely reassured to the point of being willing to ease gradually the sanctions previously imposed in this latest diplomatic initiative, thereby raising the level of threat faced by Israel and accounting for Netanyahu’s frantic opposition to the agreement.

 

In the end, despite siding with Israel at every turn with respect to tension with the U.S. Government, Oren recognizes that Obama has been on balance been a faithful ally. Although indicting the Obama presidency the United States for being a disloyal ‘ally’ when the Iran chips were on the diplomatic table. It is not presently clear whether Netanyahu’s insistence that the nuclear deal (JCPOA) is ‘a historic mistake’ will overcome rationality and self-interest in the American setting either in the immediate future of approving the (non-treaty) agreement, or over a longer period should the United States have the misfortune of electing a Republican president in 2016 who are presently stumbling over one another in their competition to denounce more decisively.

 

More generally, Oren outrageously proposes that this alliance between Israel and the United States, to live up to its potential, should have three dimensions that would make it unlike all others: ‘no daylight’ on common concerns, that is, no policy differences; ‘no suprises,’ that is, advance notification to the other government of any international policy initiatives bearing on the Middle East; and never a public display of disagreements when policy differences between the two governments emerge as happened with Iran. The justifications given by Oren emphasize the usual litany of two states sharing commitments to political democracy, anti-terrorism, and having common regional strategic and security goals.

 

What seems superficially astounding is that the world’s number one state seems frightened to step on the smallest Israeli toe, while Israel is ready to do whatever it needs to do to get its way on policy issues in the event of a dispute with its supposedly more powerful partner. After negotiating a far tougher deal (on enriched uranium and intrusive inspections) with Iran than the realities warrant, at least partly out of deference to Israeli concerns, Washington still feels it appropriate and apparently necessary to indicate a readiness to provide ‘compensation,’ that is, enlarged contributions beyond the current $3.1 billion, offers of weapons systems designed to bolster further Israel QME (Qualitative Military Edge) in the Middle East. The White House additionally sends its recently appointed Secretary of Defense, Ashton Carter, to Israel with hat in hand, evidently to reassure the Israeli leadership that nothing about the agreement is inconsistent with continuing support of Israel’s right to defend itself as it sees fit, which appears to be a writ of permission in violation of the UN Charter and international law by granting Israel assurance in advance of U.S. support should it at some future point launch an attack on Iran. It should be noted that no state in the world enjoys such inappropriate benefits from an alliance with the United States. The whole dubious logic of QME implies a continuing willingness to put Israeli security permanently on an unlawful pedestal in the region that places other states in a subordinate position that makes them susceptible to Israeli military threats and hegemonic demands. It is tantamount to providing Israel with assured capabilities to win any war, whatever the pretext, that should emerge in the future, and also means that Israel is the only state in the Middle East not deterred by concerns about retaliation by an adversary. For years Israel has been threatening Iran with a military attack in flagrant violation of Article 2(4) that unconditionally prohibits “any threat or use of force” except in situations of self-defense as strictly limited by Article 51.

 

Oren, of course, sees things much differently. He repeats without pausing to entertain the slightest doubt, that Israeli is the only democracy in the Middle East and joined at the hip to American foreign policy as a result of these shared interests and values. He insists that the UN is biased against Israel, and is thankful for American blanket opposition to all hostile initiatives, whether justified or not, that arise within the Organization. For Oren UN bias is clearly evident in the greater attention given to Israel’s alleged wrongs than those of much bloodier international situations and worse violators. He also faults Obama, as compared to George W. Bush, for being a weak ally, too ready to please the Palestinians and indeed the entire Islamic world, and supposedly causing an unspecified ‘tectonic shift’ in the alliance with Israel during his presidency. In this regard, the Iran Agreement is the last straw for Oren, and the most damaging example of a departure from the alleged alliance code of no daylight and no surprises (epitomized by recourse to secret diplomacy between Washington and Tehran that left Tel Aviv out of the loop for several months leading up to the agreement). Of course, Oren is unapologetic about Israel’s obstructionist behavior. He treats Netanyahu’s conception of Israel’s security as essentially correct, if at times unnecessarily confrontational. He believes that in this instance Israel’s worries are sufficiently vital and well-founded as to deserve putting aside diplomatic niceties. This was the case when the Israeli leader was invited by the Republican leadership in Congress to speak on Iran at a special joint session convened for this purpose in early 2015 without even informing the White House in advance of the invitation, a violation of political protocol.

 

Deconstructing the Oren view of alliance politics makes it clear that its operational code would be better observed if the Congress and not the President represented the United States in matters of foreign policy. Netanyahu and a majority of the U.S. Congress do seem to see eye to eye, including of course on whether the Iran Nuclear Agreement, as negotiated, should be approved. Across the board of foreign policy in the Middle East, Netanyahu and Congress are bellicose, inclined toward military solutions despite the dismal record of failure, and inclined to decide about friends and enemies on the basis of geopolitical alignment and religious orientation without the slightest concern about whether or not supportive of democracy, human rights, and decency.

 

Should a Republican with these views be elected president in 2016, then Oren’s dream of the alliance as based on ‘no daylight, no surprises, and no public discord’ would likely come true, illustrating the proposition that one person’s dream is another person’s nightmare. More carefully considered, it would seem probable that if Hilary Clinton gets the keys to the White House her approach to Israel will be closer to that of Congress than that of Obama even recalling that Obama backed away quickly from his early demand that Israel freeze settlement expansion and has significantly increased military assistance for Israel without exhibiting much concern about peace and justice in the region, or with regard to the Palestinian ordeal. U.S. response to the Sisi coup in Egypt is indicative of a strategic convergence of approach by the Obama White House and Netanyahu’s Likud led government.

 

Two realities are present as surfacing in response to the Iran Nuclear Agreement (JCPOA):

–-the presidency is on one side (along with Clinton) and Congress/Israel is on the other side;

–yet more broadly conceived, the alliance remains as unconditional and bipartisan as ever, defiant toward the UN and the constraints of international law whenever expedient.

 

A final point. JCPOA imposes more restrictions on Iranian enrichment capabilities and stockpiles, and on inspection and monitoring of compliance, than has been imposed on any country in the course of the entire nuclear era. Its regional justifications, aside from Israeli security, emphasize the avoidance of a nuclear arms race in the Middle East involving Saudi Arabia, Egypt, and Turkey. And left out of consideration altogether was the nuclear weapons arsenal of Israel acquired with Western complicity and by covert means, as well as through operations outside the Nonproliferation Treaty regime, which is used to tie Iran’s hands and feet. Such are the maneuvers of geopolitics, that underpin the alliance so strongly celebrated by Michael Oren.

 

 

 

 

 

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UN Report on War Crimes during Israel’s 51 Day Assault on Gaza

6 Jul

 

 

Exactly a year ago, for 51 days between July 7 and August 26 Israel carried out its third major military assault (2008-09; 2012; 2014) on Gaza in the past six years. This last one, code named Operation Protective Edge by Israeli Defense Forces, was the most vicious, killing 2,251 Palestinians, of which 1,462 were civilians, and included 299 women and 551 children, as well as injuring 11,231, a number that includes 3,436 children, 10% of whom have permanent disabilities, and another 1,500 have been orphaned. Israel also suffered casualties: 73 killed of whom 67 were military personnel, and 1,600 injured. Additional to the human casualties, 18,000 Palestinian housing units were destroyed, along with substantial damage to Gaza’s electricity and sanitation systems, 500, 000 Palestinians (almost 1/3 of Gaza’s population) were forcibly displaced during the military operations and 100,000 remain so a year later, and 73 medical facilities and ambulances were destroyed or damaged. Due to the Israeli blockade, the aftermath of this onslaught has prevented a normal recovery, extending the period of suffering endured by the entire Gazan population. The magnitude of the Palestinian losses, as well as the comparison with Israeli losses, and the comparative ratio of civilians to military killed on the two sides, by itself suggests that the essential character of this Israeli undertaking is best understood as ‘state terror’ directed at Gaza’s population as a whole. Such conclusions are reinforced by Israel’s provocations during the month prior to the launch of the attack and by the refusal of its government even to consider frequent proposals by Hamas to establish long-term internationally supervised ceasefire proposals.

 

This one-sided impression of the events is not conveyed by the much anticipated UN Report of the Commission of Inquiry (COI) set up by the Human Rights Council to investigate violations of international human rights and international humanitarian law in July of 2014 that were occurring during Operation Protective Edge. The Commission was originally chaired by William Schabas, a leading world expert of international criminal law, but he resigned under pressure effectively mounted by Israel and the United States, centering on the discovery that Schabas has accepting a small consulting fee for some professional advice given to the Palestinian Liberation Organization a few years earlier. This unhappy development left the commission with only two members, Mary McGowan Davis from the United States and Doudou Déne from Senegal, with Judge McGowan being named as chair. Neither is considered expert in relation to the subject matter being investigated.

 

Balance amid Imbalance

 

The report strives for ‘balance’ carefully setting off violations by Israel against those of what it calls ‘Palestinian armed groups’ creating a profoundly false sense on the part readers as to equivalent responsibility for wrongful behavior by both Israel and Palestine. I agree with Ali Abunimah’s carefully formulated explanation for this misleading approach taken in the report and the deeper message being conveyed: “Despite the ‘balanced’ language that is now the habitual refuge of international officials hoping to avoid false accusations of anti-Israel bias, the evidence shows the scale and impact of Israel’s violence dwarfs anything allegedly done by Palestinians.” [See Ali Abunimah, “’Balance’ in UN Gaza Report can’t hide massive Israeli War Crimes,” Electronic Intifada, 22 June 2015] Or as the widely respected international NGO, BADIL, expresses a similar reaction: “In the language employed, there appears a desire to portray the adversaries as being on an equal footing, despite this being patently untrue, as revealed in the vast disparity in respective casualties and destructive capabilities…attempts to portray ‘balance’ where there is none is extremely problematic.” Typical of the imbalanced balance, the Report observes that “Palestinian and Israeli children were savagely affected by the events,” [§25] which is accurate in a literal sense, but a gross example of treating unequals equally, given the far greater severity of suffering endured by Palestinian children.

Looking for a glimmer of silver lining, some have endorsed this framing device of balance as justified to so as to persuade the mainstream media in the West, and especially the United States, to view the contents of the report more seriously as it cannot be dismissed simply by being called anti-Israeli, or worse, anti-Semitic.

 

As Abunimah emphasizes there is this strange mismatch between the strong evidence of Israeli disregard of legal constraints on military tactics that unduly imperil civilians and this rhetoric of balance, which in effect, assigns blame to both sides. This is not to argue that the criminality of resistance tactics employed by Hamas and associated military groups in Gaza should be entirely ignored, but rather that the primary human impact of Protective Edge was to leave Gaza bleeding and devastated, while Israel endured minimal damage and dramatically less destructive impacts on its societal order. Israeli damage was repaired almost immediately. In contrast, Israel’s refusal to allow ample reconstructions materials to enter has left substantial parts of Gaza in ruins, with many Gazans continuing to lack adequate shelter, remain homeless, displaced, and understandably traumatized.

 

 

 

 

Civilian Focus

 

Despite what might appear to be overly cautious language, a fair reading of the report supports three important conclusions:

  • that Israel’s supposed efforts to protect the civilian population of Gaza were grossly inadequate from the perspective of international humanitarian law, and probably constituted war crimes; and
  • that the military tactics employed by Israel on the battlefield were “reflective of broader policy, approved at least tacitly by decision-makers at the highest level of Government of Israel.”
  • that the focus was on the civilian victims rather than on a bland acceptance of arguments premised on ‘military necessity’ or ‘asymmetric warfare’: in the words of the report, “The commission considered that the victims and their human rights were at the core of its mandate.”

Such findings, coupled with the detailed evidence set forth in the body of the report, provide the International Criminal Court with a strong, if indirect, mandate to proceed further with its preliminary investigation of Israeli criminality in the Gaza War. Palestine is reinforcing this momentum by submitting its own body of evidence to back up allegations of Israeli criminality related to Protective Edge. The Commission makes clear that it is relying, as is customary for non-judicial inquiries of this sort, on a ‘reasonable grounds’ test of potential criminality [§11], which is not as rigorous as would be applied in an ICC trial of accused individuals where the test is often formulated “as guilty beyond reasonable doubt” or some wording to that effect.

 

The Report makes no pretension of making a professional determination as to whether criminal prosecution should follow from its findings, although in its Recommendations section it does urge both the ICC and national courts relying on Universal Jurisdiction to move forward with indictments and prosecutions if the apparent criminality of either side’s conduct is confirmed by further investigation. The ICC had already begun an investigation of its own in response to a Palestinian request after Palestine became a party to the Rome Treaty that provides the authoritative framework for addressing alleged international crimes at an international level. Whether the ICC can bring any perpetrators of Israel’s criminal policies to justice is extremely doubtful as Israel, a non-member, is certain to denounce the effort and the institution and refuse all forms of cooperation; it is relevant also to note that the ICC is not permitted to hold trials without the presence in the courtroom of those accused. Nevertheless, even the prospect of indictments and arrest warrants is itself a strong challenge to Israel’s approach to Gaza, and to the Palestinians generally, and it will further strengthen the BDS Campaign, as well as the wider global solidarity movement that rests on the delegitimizing of Israel’s policies and practices. It will also inhibit travel of Israeli political and military leaders to those countries that empower national courts to exercise universal jurisdiction in relation to well-evidenced allegations of violations of international criminal law.

 

Context

 

There are some definite positive elements in the Report beyond these general conclusions worth mentioning. Unlike prior assessments, including the Goldstone Report of 2009 dealing with Operation Cast Lead, the attack on Gaza that began on December 27, 2008, this new report specifies the context by referring to the Israeli blockade of Gaza as imposing “a continuing collective penalty against the population of Gaza,” [§15]. The Report fails to take the next logical step of identifying this penalty as a flagrant violation of Article 33 of the Fourth Geneva Convention that unconditionally prohibits any collective punishment, and hence is a continuing crime against humanity. Helpfully, though, the Report does say that “the impact of hostilities cannot be assessed separately from the blockade imposed by Israel.” This view is appropriately reinforced with the significant call for “a full and immediate lifting of the blockade,” [§24] although the relevance of the blockade is not stressed in the COI analysis of the combat tactics relied upon by both sides, which suffers from its resolve to appear ‘balanced.’

 

The Report also took innovative account of the fact that the Palestinians were suffering from ‘protracted occupation’ and that there was absent any prospect of peace between Israel and Palestine. [§14ff] Acknowledging that this defining reality has some bearing on the reasonableness of resistance tactics, and should be treated as relevant when assessing the severity of violations. In contrast, Israel as the occupier that has long not only failed to implement, but actively subverted, the unanimous Security Council injunction to withdraw from territory occupied in 1967, should be held to higher standards of compliance with international law by the UN. In the end, the incendiary question posed indirectly is “What are the Palestinians expected to do by way of resistance, considering that they lack precision weaponry and have long been victimized by a prolonged occupation that is oppressive and exploitative, and shows no sign of ending anytime soon?’

 

These contextual factors are also affected by a diplomatic context in which Israel insists on treating Hamas as a terrorist entity, despite the fact that Hamas has been offering long-term proposals for peaceful coexistence supervised by an international presence ever since it decided to pursue a political track to liberation when it participated successfully in 2006 elections in Gaza and the West Bank and effectively abandoned armed struggle, including suicide bombing, as its approach to liberation. Such a potential diplomatic path to Israeli security is not mentioned in the Report, or its legal correlative, that since World War II, recourse to war is legally valid only as a last resort even where legal claims of self-defense are well-grounded. In this regard, Israel’s refusal to explore a diplomatic alternative to war casts doubts on its claim to be acting in necessary self-defense. This diplomatic option for Israeli security should have been discussed in the Report even if it could not be definitively proven to exist. Also, not discussed, is whether given stage-setting Israeli anti-Hamas provocations in the West Bank, which are set forth in the Report, along with the absence of any substantial damage from Gaza rockets fired at Israel, the legal conditions for a claim of self-defense existed given the seeming absence of a prior armed attack as required by Article 51 of the UN Charter.

 

The Report relies on a methodology based on a reasonable interpretation of customary international law articulated by reference to three principles: of distinction (limiting attacks to discrete military targets) ; of proportionality (avoiding uses of force disproportionate to the value of the target); of precaution (taking reasonable measures to avoid civilian death and destruction). [§13] It is evident to the COI that Palestinian missiles, inaccurate and directed toward Israeli population centers, violate the principle of distinction even if they do little damage as do Israeli strikes directed at densely populated residential neighborhoods that inflict massive damage. For instance, the Report condemns the Israeli use of massive firepower against Rafah and Shuja’iya “in utter disregard of its devastating impact on the civilian population.” [§58] Although the Report finds that the use of human shields by either side is a violation of the laws of war, it fails to find sufficient evidence to reach any firm conclusion.

 

Recommendations

 

In the conclusions and recommendations of the Report there are various calls made for greater vigilance in following through, arguing that imposing accountability for violations of international criminal law is relevant to avoiding a repetition of the Protective Edge experience. In this spirit the Report indicates that the victims, in particular, stressed examining “the root causes of the conflict” as an essential step toward future. [§75] There was also a determined emphasis placed on overcoming impunity with respect to such crimes, and in particular, “Israel must break with its lamentable record in holding wrongdoers responsible.” [§76] There is also a specific call to support the work of the ICC, and for Israel to accede to the Rome Treaty that controls the operation of the ICC.[§86(e); 89(d)]

 

The recommendations that are most relevant are set forth in §86(d):

 

“To address structural issues that fuel the conflict and have a negative impact on a wide range of human rights, including the right to self-determination; in particular, to lift, immediately and unconditionally, the blockade on Gaza; to cease all settlement-related activity, including the transfer of Israel’s own population to the occupied territory; and to implement the advisory opinion rendered on 9 July 2004 by the International Court of Justice on the legal consequences of the construction of a wall in the Occupied Palestinian Territory.”

This enumeration is a departure from the tone and substance of balance, and calls upon Israel to bring its behaviour as Occupier into conformity with international humanitarian law. It refrains from mandating the dismantling of the unlawful settlements, but otherwise goes quite far in relation to human rights, including self-determination, settlement expansion, and the wall to address the most fundamental Palestinian grievances.

 

 

 

Conclusion

 

As might have been anticipated, despite the balance of the Report, it was attacked as biased even before being made public by Israel and the United States, and its presentation in an open debate at the Human Rights Council was boycotted. Israel went further, issued extensive report prepared under the aegis of the Israel Defense Forces that exonerated Israel on all counts. [Special Report, ‘Operation Protective Edge,’ Israel Defense Forces, June 2015; “The 2014 Gaza Conflict: Factual and Legal Aspects,” Israel’s Ministry of Foreign Affairs, June 2015] It also invited a group of ‘high-level’ military officers and diplomats to review the allegations, which also vindicated Israel’s claims in its consensus report. [“Key Preliminary Findings of the High Level International Military Group on the Gaza Conflict,” June 12, 2015, UN Watch home page] In effect, the familiar battle lines are drawn at inter-governmental levels, making it clear that nothing can be expected to flow from this Report beyond a further recognition that if the Palestinian struggle is to advance at this stage it will depend on the activism of civil society rather than on the policies of governments or the implementation of the Report’s recommendations by the United Nations.

At the same time, as with the earlier Goldstone Report, it is important that this COI fully documented the essential charges with elaborate evidence, and legitimates the coercive tactics of Palestinian resistance and the nonviolent militancy of the global solidarity movement. As the COI noted, Israel again refused cooperation with the investigative efforts from their outset. The political weight of the Report is augmented by the fact that its findings and recommendation were formally received with approval by a vote of 41-1 in the Human Rights Council.

As could be anticipated, the United States was the lone member of the HRC that refused support to the Report. Even Europe, voting as a unit, gave its positive endorsement. Human Rights Watch made the following observation: “The lack of support by the United States—the only state to vote against shows a disappointing unwillingness to challenge impunity for serious crimes during the Gaza conflict and to stand up for the victims of war crimes during the conflict.”

 

It is sad that despite the abusive attitudes exhibited by the Netanyahu government toward the Obama presidency there is no willingness on the part of Washington to back international criminal law in such circumstances of gross violation. When the United States Government, still the world’s most influential political actor, gives such precedence to the most cynical aspects of alliance politics it sends a powerful message that governments can freely abandon principled foreign policy whenever it conflicts with hard power calculations of geopolitics (and in this instance, more relevantly, with the soft power dynamics of American domestic politics).

 

 

 

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Apartheid and the Palestinian National Struggle

28 Apr

Apartheid and the Palestinian National Struggle

 

Preliminary Observations

 

In this period when the centenary of the genocidal victimization of the Armenian people in 1915 is being so widely observed and discussed, it seems especially appropriate to call attention to the comparable victimization of the Palestinian people. This second story of prolonged collective victimization also received its jump start almost a century ago with the issuance by the British Foreign Office of the Balfour Declaration supporting the Zionist movement project of establishing a Jewish national home in historic Palestine. The most striking difference between these two experiences of severe historical wrongs is that the Armenian people are seeking acknowledgement and apology for what was done to their ancestors a century ago, and possibly seeking reparations, while the Palestinian people may sometime in the future have the opportunity to seek similar redress for the past but now their urgent focus is upon liberation from present daily structures of acute oppression. This Palestinian situation is tragic, in part, because there is no clear path to liberation, and the devastation of oppressive circumstances have gone on decade after decade with no end in view.

 

The political puzzle of the Israel/Palestine conflict continues to frustrate American policymakers despite their lengthy diplomatic engagement in the search for a peaceful future that satisfies both peoples. There are significant changes, of course, that have occurred as time unwinds. Perhaps, the most crucial change has involved the gradual extension of Israeli control over virtually the whole of historic Palestine with American acquiescence. This coincides with a growing and more vivid awareness around the world of how much suffering and humiliation the Palestinian people have endured over the course of the last century, and the degree to which this frozen situation can be blamed on the unlimited willingness of the United States to deploy its geopolitical muscle on Israel’s behalf.

 

My approach to the Palestinian struggle reflects four points of departure: first, regarding the long suffering of the Palestinian people as having become the primary international moral challenge of our time, which does not deny that there are other equally serious moral challenges, but none is so implicated in wider global patterns of past injustice or as salient in the political consciousness of the peoples of the world; secondly, believing that international law and morality should be allowed to provide essential guidance in determining the contours of a just and sustainable peace between these two long embattled peoples; thirdly, emphasizing the decisive liberating role of nonviolent civil society militancy in finding a solution for the conflict, achieving liberation from below by the mobilization of people, not the action governments as offering the most promising present scenario for ending the Palestinian ordeal; and fourthly, approaching the struggle for Palestine as matter of human wellbeing without privileging a particular ethnicity, nationality, and religion, that is, from a sense of shared humanity rather than from adversary perspectives of Jewish and Palestinian exclusivity.  

 

The Palestinian struggle is about far more than the ‘end to occupation,’ although the concreteness of the Israeli occupation of Palestine lends itself to visualization, as would Israeli withdrawal, and this partly explains why so many liberal activists equate peace with ending the occupation. Yet conceiving the conflict in this territorial manner is profoundly misleading. It ignores the depth and complexity of what is at stake for both Jews and Palestinians, but especially for Palestinians. I consider the Palestinian national struggle within its broader scope and less distinct parameters as a persisting struggle to achieve the right of self-determination. Self-determination is the solemn promise of common Article 1 in the two international human rights covenants made to all peoples in the world, in effect, a legal, moral, cultural, and frequently a political entitlement to determine collective destiny so long as the equal right of other peoples is not encroached upon. These 1966 covenants set forth the content of international human rights law in their most authoritative treaty form. The extended inability to realize this right is the core tragedy of the Palestinian people, informing the hardships and humiliations of daily life.

 

In some respects, even describing the Palestinian goal in the language of self-determination is too restrictive, and by itself, not very clarifying. Ultimately the preconditions and contours of a just and sustainable peace is what should concern us most. It is an outcome that controversially also addresses the overlapping and conflicting right of self-determination enjoyed by those of Jewish identity who are now long enough resident in Israel to possess their own legitimate basis for claiming self-determination. The key strategy of accommodation is to find the best formula for reconciling these basic competing claims of self-determination, and to reject as unacceptable contentions of their fundamental incompatibility or their resolution by force of arms. It is important at this stage to recognize that Israeli unilateralism and Zionist maximalism are making it increasingly difficult for the affected parties to find such a formula, much less give it life.

 

When considering the content of this underlying right of self-determination additional substantive concerns are disclosed, above all the fate of the several million Palestinian refugees many living for more than 50 years in miserable refugee camps in Jordan, Syria, and Lebanon. If Palestinian goals or the requirements of peace are confined to the territorial language of ending the occupation, the plight of Palestinian refugees tends to be left in limbo or at best consigned to the periphery of peacemaking that implicitly denies any right of repatriation and leaves the refugee communities without adequate representation.

 

There are other challenges facing peacemakers, as well. Edward Said, and other sensitive commentators on the interminable Palestinian ordeal have repeatedly observed that one catastrophic dispossession, that of the Palestinians in 1948, in no way justifies seeking a second dispossession, this time of Jews. In effect, the illegitimacies of the past that have victimized the Palestinians and produced the present intolerable state of affairs, must be put to one side in peacemaking contexts, and the future framed by reference to how Palestinians and Jews can best live together when account is taken of all the circumstances of past and present, including the allocation of rights by the application of international law. This injunction of mutuality should not be interpreted as a readiness to forget the past, or to minimize its relevance. Rather it is an insistence that replicating past wrongs by superimposing on all of historic Palestine a new power structure that excludes or subjugates Jews is not ethically acceptable or politically feasible as goals of conceiving Palestinian empowerment. Said did insist, however, that grave past injustices endured by the Palestinians, especially the massive dispossessions of 1948 and again in 1967, must be confronted and acknowledged by Israel before any sustainable progress toward peace and reconciliation is possible. Similarly, there is no way of reconciling the contending claims of self-determination if Zionism clings to its demand of ‘a Jewish state’ and an exclusive unlimited right of return for Jews only.

 

The contention that Israel has become an apartheid state is highly relevant to grasping the fate endured by the Palestinian people over the course of the last hundred years. Most poignantly, if the quest for Palestinian self-determination continues to fail, the outcome of the unresolved struggle will almost certainly result in the further entrenchment of existing systematic structures of ethnic discrimination. Such structures possess the key elements of the international crime of apartheid. If this is so, it means that the very arrangement relied upon to sustain public order in Palestine and Israel is itself an ongoing international crime of utmost gravity. Apartheid is designated as a crime against humanity in the Rome Statute of 2002, the treaty that regulates the operations of the International Criminal Court.

 

In other words, the present and the future of the Israel/Palestine relationship cannot be understood in neutral, symmetrical, and static terms of both sides more or less equally thwarting the path leading to conflict resolution and enduring the same consequences if that path remains blocked. Unfortunately, this has long been the official American rebuke to both parties. John Kerry, the American Secretary of State, and President Barack Obama, never tire of telling Israel and Palestine that each must make ‘painful concessions’ if the deadlock is to be broken and peace to be attained. Such language conveys a fundamentally distorted image of the present reality because it refuses to take account of the essential and vital difference between the situation of the oppressor and the oppressed, a difference that becomes unmistakable if you experience directly the many dimensions of everyday inequality between the two peoples. [this point is often made by Edward Said. See for instance his last interview: “My Right of Return,” (with Ari Shavit), in Gauri Viswanathan, ed., Power, Politics, and Culture: Interviews with Edward W. Said (Pantheon, 2001, 443-458, esp. 445-449.]

 

The imagery of deadlock and equal responsibility for the unsatisfactory present reality also falsely implies a static situation that would seem detrimental to both sides. This is a false image because with the passage of time Palestine loses, and Israel gains. This is so territorially, but also to live as the oppressor is consistent in most respects with living well, while living under conditions of oppression or as refugees in to varying degrees living badly. Of course, power shifts are common, and roles can be reversed, although this does not seem likely anytime soon.

 

The existing Israel and Palestine interplay is constantly evolving. This understanding leads me to have a quite different overview of the present situation that I will express in a deliberately provocative way–either the future will witness a further entrenching of the Israeli apartheid state or Israel will abandon and dismantle current apartheid structures and accept a Palestinian call for peace in accord with international human rights law, and more generally, agree on steps that need to be taken to realize the Palestinian right of self-determination. As previously stated such a Palestinian realization of self-determination must not be exercised at the expense of a complementary Jewish right of self-determination. This is not meant as an indirect endorsement of Zionist goals as articulated by currently dominant Israeli forces. It is obviously difficult to adjudicate between these overlapping claims of self-determination, and doing so most likely requires help from genuinely detached third parties. Putting this more concretely, a spiritual homeland for the Jewish people in ancient Palestine would could be maintained, but not the current Jewish state with its preferential ethnically framed nationality laws, making Israel what the Jewish leader Henry Siegman perceptively identifies as an ‘ethnocracy’ rather than a ‘democracy.’

 

Let me acknowledge, without delving into the matter, that the Palestinian Authority (PA) and the Palestinian Liberation Organization, the formal representatives of the Palestinian people in international venues, has been partly responsible for the confusion about these fundamental points by seeming to go along with both a territorial definition of the conflict and a solution based on the Oslo process despite it being tainted by the United States acting in the role of intermediary. The PA posits its primary goal to be the establishment of some kind of Palestinian state on the currently occupied territory of the West Bank, and indeed claims that such a state already exists, a position affirmed by the General Assembly in a resolution adopted on November 29, 2012. This also allows Israel and the United States to continue treating ‘the peace process’ as necessitating direct negotiations between the parties despite Israel’s multiple efforts to de facto annex portions of the West Bank at Palestine’s expense ever since the early 1990s. By now it should be evident that these direct negotiations have given the Palestinians zero benefits for the last 20+ years while bestowing on Israel a golden opportunity to pursue its expansionist agenda in violation of international law. The fact that Israel continues to lend rhetorical support to such a peace process sustains for many the illusion that its government favors a genuine effort to solve the conflict through diplomatic compromise. Washington does its part, going sheepishly along not only because it habitually defers to Israel, but because playing this particular diplomatic game enables the United States to continue portraying itself as patron of a process dedicated to producing peace.

 

 

 

Understanding Israel’s Recourse to Apartheid

 

At a conference at the National Press Club on April 10, 2015 in Washington devoted to assessing and depicting the Israel Lobby as it operates in the United States, the influential Haaretz columnist, Gideon Levy, painted a picture of the current Palestinian ordeal concisely with a few verbal brush strokes. He emphatically told the audience what every follower of this ‘peace process’ should have understood long ago: “The two state solution is dead!” What does that mean? According to Levy, neither Israeli motivation nor any practical possibility of moving toward Palestinian self-determination is present, even in that constricted and inadequate sense of territorial empowerment with respect to currently occupied Palestine. Israel’s main policies have long been subversive of the establishment of an independent and sovereign Palestine, the major presupposition of the ‘two state solution.’ The centerpiece of this subversion is, of course, the settlement phenomenon—the establishment and continuous expansion of 121 settlements authorized by Israel (along with 102 so-called ‘settlement outposts’ that are formally unauthorized but are nevertheless officially supported and subsidized) that now provide unlawful homes for between 700,000-750,000 Israeli settlers. This massive encroachment on any future independent Palestine has been abetted by the multi-billion dollar construction of a network of settler only roads, and by building a separation barrier of several hundred miles many segments of which cut deep into occupied Palestinian territory. This notorious wall was authoritatively declared illegal by 14 of 15 judges of the International Court of Justice back in an advisory opinion issued in 2004, endorsed by the General Assembly, and summarily rejected by Israel.

 

Although Levy didn’t explain exactly what he meant by using the word ‘dead,’ it can be interpreted in two distinct ways: first, as Benjamin Netanyahu himself proclaimed in the recent Israeli electoral campaign, as long as he and the Likud Party control the government, Israel will never allow the formation of a Palestinian state in historic Palestine. This also seems to express the real views of a majority of Israeli citizens, and thus the utterance of views to the contrary by Netanyahu and other Israeli leaders for international consumption should be disregarded as a cynical move to placate public opinion; and secondly, even if the words were to be treated as sincere, the settlements, roads, and wall make a viable sovereign Palestinian state incapable of establishment even if Israel some day possesses the political will to bring it into being.

 

The two-state solution has long been what the NY Times columnist Paul Krugman calls a ‘Zombie Idea’, that is, a discredited idea that continues to be accepted as the way to solve a problem because it upholds the self-interest of some powerful political actors, thereby diverting attention from alternative solutions that could be burdensome for those who benefit from freezing the status quo; it is a zombie, as in being a ghost, which lives on beyond its natural death causing torment to those it haunts. In ghostly respect the two sate solution continues to be treated as the only solution for the convenience of the parties, including the United States, Europe, and the UN, despite their private awareness of its irrelevance. During my period as UN Special Rapporteur I was often privy to corridor conversations that acknowledged the absence of any hope for a two state solution, but in public it was business as usual with these same individuals expressing their fervent hopes that talks would soon resume and finally find common ground.

 

 

In the contrasting theater of ‘reality politics’ the prospects are for further Israeli unilateralism. This impression has been reinforced by the selection by the Knesset two years ago of Reuven (Ruvi) Rivlin as President of Israel. Rivlin is a rightest Likud figure long known for his unapologetic embrace of a one state solution that envisions the Israeli incorporation of the whole of occupied Palestine. Netanyahu, a wily politician, differs from Rivlin in fundamental respects, and despite both men belonging to the same political party, they disagree on key issues and are personal antagonists: Netanyahu has previously given lip service internationally to a diplomatic process built around bilateral negotiations, as well as expressing his provisional support on behalf of Israel to a two-state solution; somewhat surprisingly Rivlin, unlike Netanyahu, strongly opposes an apartheid approach to internal Israeli security. In its place, Rivlin offers the Palestinians a Faustian Bargain, if Palestinians agree to live in an orderly manner while foregoing self-determination they deserve to be treated as fully equal citizens within a Jewish state comprising Greater Israel, including a guaranty of unrestricted political participation that might even include a Palestinian victory someday in national elections. [elaborated in by David Remnick, “The One-State Reality,” The New Yorker, Nov. 17, 2014.] To obtain this equality of treatment, the Palestinians would be expected to accept this consummation of the Zionist Project in a form that was originally proposed by Ze’ev Jabotinsky the Zionist visionary who inspired the founding of the Likud Party!

 

It should be obvious that the Palestinians will never agree to such an outcome of their national struggle, which would amount to the acceptance of a humiliating political surrender. In the unlikely event that the Ramallah leadership of the PA ever dared to accept such a deal, perhaps disguised in its presentation by granting Palestinians some community and local rights of self-government, the Palestinian people are almost certain to reject it. Such an arrangement would not bring peace, but at most it would be seen as nothing other than one more ceasefire to be broken by a further cycle of renewed resistance.

 

In effect, combining the physical encroachment on any Palestinian expectations of a viable sovereign state of their own with the rightward drift of internal Israeli politics, makes the apartheid solution a near certainty whether in the form of a perpetuation of the present condition of irresolution or by adopting a version of the Israeli one-state outcome within which discriminatory structures will have to be maintained to uphold public order. In light of such futures, robust Palestinian resistance can be anticipated, and for Israel to contain and suppress it will require police and paramilitary structures of control at least as strong as has has long been operative in the West Bank, and in different modalities in Gaza, ever since occupation commenced in 1967.

 

Again referring to Levy’s Washington talk, he regards the cumulative impact of the occupation as having produced the “systematic dehumanization of the Palestinians.” Collective dehumanization is an almost sure sign of the presence of apartheid when those experiencing abuse are ethnically and territorially distinct, and have a sufficient demographic weight as to consider themselves as ‘a people’ rather than a victimized minority.

My own experience with Palestinians has certainly confirmed this dynamic of dehumanization, but it has also been coupled with shining instances of Palestinian humanization despite everything as well as with Israeli dehumanization associated with forcing its will by brute force on a totally vulnerable people being denied their most elemental rights.

 

At this point, a glance at history helps us appreciate the perversity of this emergence of apartheid in Palestine. It needs to be remembered that the Zionist project received its first decisive international endorsement in a strictly colonialist form, by way of an assurance in 1917 given by the British Foreign Secretary, Lord Alfred Balfour, to Lord Rothschild, the head of the Zionist Movement in Britain, that the British government would “view with favor the establishment in Palestine of a national home for the Jewish people.” At this initial stage, a Jewish state, as distinct from a national home, was neither endorsed in the text nor envisioned as an overt goal, although Zionist leaders seemed to have had this in mind from the beginnings of the movement in the late 19th century. Even the limited idea of a Jewish homeland was qualified by the clause “it being clearly understood that nothing shall be done to prejudice the civil and religious rights of existing non-Jewish communities in Palestine.”

 

The Balfour promise of a Jewish national home was intended to be fused with the British plan to govern the whole of Palestine primarily in pursuit of its strategic goals of safeguarding trade routes to India, and especially the Suez Canal. Britain resorted to its habitual colonial tactic of ‘divide and rule’ with respect to its administration of relations between Jews and Arabs. But as the peace diplomacy unfolded after World War I, the British were forced by the United States to roll back their overt colonial ambitions, and operate within the mandate system that entailed an international commitment to grant Palestine eventual national independence as a single independent state but also contained the Balfour promise of a Jewish national home. In actual fact, the British governed Palestine as a de facto colony during the mandatory period from 1920-1948, but their divide and rule approach backfired as the Jewish presence disproportionately increased and as Zionist statist ambitions became evident they began colliding with British policy. In the end Zionist extremists resorted to systematic terrorism with the goal of inducing the British to abandon Palestine. Palestine became ungovernable, and the British shifted from their divide and rule tactics to the advocacy of a partition plan that would divide Palestine into two national entities, one for Palestinians, the other for Jews.

 

After World War II, when Britain could no longer handle the burdens of administering Palestine, the UN was given the job of addressing these conflicting claims, and in GA Resolution 181 influenced by the British approach, a partition plan for Palestine was approved over the objection of Arab countries. In the UN plan, 55% of historic Palestine was awarded to the Jewish claimants, and the remaining 45% to the Palestinians. Jerusalem was given to neither side nor split, but was designated as a corpus separatum to be administered as an international enclave by the UN with the Trusteeship Council given the assignment.

 

There was no attempt by the UN to implement, or even consider, self-determination by consulting the will of the resident population in Palestine, which was then overwhelmingly opposed to partition. Partition was a paternalistic initiative of the international community that in effect ratified the settler colonialist approach of the Zionist movement as initially facilitated by Britain and later greatly strengthened due to developments in Europe, especially Germany. Not surprisingly partition was at the time rejected by the Palestinian majority population and accepted by the Zionists, resulting in the 1948 War, decisively won by the Jewish side. This battlefield outcome shrank the Palestinian remnant from 55% to 22% of the land, and also de-internationalized the city of Jerusalem, putting West Jerusalem under the control of Israel and East Jerusalem under the administrative authority of Jordan ; in the course of the 1948 war, there occurred the forcible dispossession of an estimated 750,000 Palestinians accompanied by the destruction and depopulation of as many as 531 Palestinian villages. The Palestinians recall and observe these events as the nakba, or catastrophe, a narration of national tragedy that combines the politics of dispossession with the tactics of massive ethnic cleansing.

 

Subsequent consequences, associated with refugee camps in neighboring countries, the 1967 War that resulted in Israel’s occupation of the rest of Palestine, and intensifying hostility toward Gaza, especially after 2006, are viewed by Palestinians as a continuation of the nakba, conceived now more adequately as a process through time rather than as a circumscribed event.

 

If we consider the sweep of developments over the course of the century a pattern emerges that continues into the present. Put simply: ever since the Balfour Declaration of 1917, the Palestinians have survived within a steadily diminished horizon of expectations, while the Zionist Movement was continuously widening its horizons. The unfolding of this dual process can be crudely expressed by reference to three periods: the first, lasting from 1917 to 1947, the mandate period during which the demographic balance of Palestine started shifting due to Jewish immigration, a dynamic accelerated by the emergence of Nazism that also increased international attention to and support for a Jewish homeland, and later, Israeli statehood; secondly, from 1948 to 1967 during a state-building period in Israel, with the West Bank and East Jerusalem administered as occupied territory in the aftermath of the 1948 War by Jordan and Gaza by Egypt; thirdly, from 1967 to the present when these Palestinian territories (as well as the Syrian Golan Heights) were shifted from Arab occupation to Israeli occupation, during which de facto annexation of portions of the West Bank, East Jerusalem, and Golan Heights took place. Gaza was first occupied and settled, with Israel ‘disengaging’ in 2005, but continuing to exert effective control over Gaza through its total regulation of borders, air space, and shoreline.

 

The UN is typically criticized for devoting too much attention to Palestinian grievances while overlooking other issues where the humanitarian urgency is as great or greater. This criticism that is frequently invoked by political leaders in Israel and the U.S. completely overlooks the degree to which the UN, and the League before it, have a special responsibility for the failure to resolve the conflict over Palestine. No where else in the world can such a humanitarian fiasco be laid so directly at the feet of the UN making it seem more appropriate to blame the Organization for doing too little or doing what it did ineptly, rather than blaming it for being obsessively focused on Israel’s wrongdoing with respect to Palestine and Palestinians.

 

 

 

 

The Politics and Ethics of Naming

 

Calling the Israeli domination of Palestinians within the various governmental zones of Israeli domination apartheid is one facet of the wider controversy. For ardent defenders of Israel the mere allegation of apartheid is inflammatory and viewed as so totally inaccurate as to suggest that anyone calling Israel an apartheid state is an anti-Semite. Israel defends its policies toward Palestinians in Israel and under occupation by invoking the democratic character of Israel in which Palestinians vote, form political parties, and enjoy membership in the Knesset. For Palestinians who live outside of Israel under occupation in the West Bank or Gaza, Israel justifies its policies by security considerations. And for the Palestinian refugees, Israel shifts blame to the Arab countries in which they are resident.

 

As the accusation of Israeli apartheid has become more and more mainstream pro-Israeli responses have become harsher. Even revered and eminent figures such as Jimmy Carter and Archbishop Desmond Tutu after expressing their opinion as to the actual and potential apartheid character of Israel have been defamed. Despite this effort to intimidate the use of the terminology of apartheid to describe not only the occupation of the West Bank but also the discriminatory regimes operative in Israel itself and East Jerusalem, as well as the oppressive securitization of Gaza, is increasing. Apartheid as the descriptive label of Israeli policy toward the Palestinian people has been gaining acceptability throughout the world, including within the UN. It has also captured the imagination of many campus groups in the West that organize Palestinian solidarity efforts and justify the BDS campaign under the banner of ‘Israel Apartheid Week,’ believing that the idea of apartheid now better expresses the essential character of Israel’s policies toward the Palestinian people than any other descriptive language. In retaliation, Israel and its NGO global network of support are seeking to criminalize civil society initiatives that flow from the apartheid analysis.

 

It is important to distinguish the political use of the terminology of apartheid in expressive and impressionistic modes from its legal usage in international law, although the two types of usage overlap. The legal conception of apartheid has evolved via the International Convention on the Suppression and Punishment of the Crime of Apartheid adopted in 1973. This treaty criminalized apartheid and made clear that the essence of the crime involved maintaining systematic regimes of extreme discrimination based on race or ethnicity, and although derived from the South African experience the crime was not limited to that particular type of discriminatory separation. The Rome Statute of 2002 that underpins the operations of the International Criminal Court categorizes the crime of apartheid within its broader classification of crimes against humanity in Article 7(1)(j). Article 7 provides a clear definition of apartheid as an: “..institutionalized regime of systematic oppression and domination of one racial group over any other racial group or groups and committed with the intention of managing that regime.” It is understood that ‘race’ is used here in a broad sense to encompass diverse ‘ethnicities’ or ‘religions.’

 

The political use of apartheid in relation to Israel does not attempt to pass legal judgment. It is rather an assessment based on the systematic character of structures of domination and discrimination that cannot be convincingly rationalized as either non-discriminatory or by reference to the reasonable requirements of Israeli security. In the background of the apartheid debate is the overarching idea of international humanitarian law as mainly set forth in the Fourth Geneva Convention to the effect that an occupying power has as its primary obligation the protection of civilians living in a society under occupation, subject only to the right of the occupier to adopt measures necessary to uphold security. The apartheid perception with respect to Palestinians is diverse and fragmented. This corresponds to the sub-regimes of control that Israel has established to deal with different segments of the Palestinian resident population.

 

The most clearly delineated apartheid structures are maintained in the West Bank where there is a pervasive subjugation of the Palestinian population by a regime of rightlessness as administered by Israeli military authorities, and to some extent since 1993 delegated to the Palestinian Authority. This regime gives rise to contrasts between the Palestinian experiences of everyday abuse and uplifting Israeli experiences of the rule of law and the stable life circumstances enjoyed by unlawful settlers. This bright line of discrimination is reinforced by the checkpoints, house demolitions, settler only roads, an intrusive separation wall, settler violence, and epitomized by the grossly unequal allocation of Palestinian water resources.

 

The 1.8 million Palestinians living in Gaza, especially since the Israeli ‘disengagement’ of 2005 followed by the Hamas electoral victory in 2006, have been subjected to the most severe sub-regime of discriminatory domination. The Gazan civilian population has been locked within the borders of Gaza and subject to periodic military attacks, chillingly described in Israel as ‘mowing the lawn.’ Jerusalem and pre-1967 Israel are administered by the government of Israel, and here discriminatory laws are based on nationality and administrative rulings limiting Palestinian rights and stability of residence, denying family unification, restricting employment and education opportunities, and imposing the domination of a Jewish state, creating a situation of pervasive human insecurity for the Palestinian minority. There are also about 1.6 million Palestinians living behind the Green Line within Israel’s 1967 borders as Israeli citizens, while being denied real equality due to this wide variety of nationality laws that blatantly privilege Jewish nationality.

 

In its totality, the Israeli apartheid system can be compared to the colonial governance approach of the British. The British derived security by ‘divide and rule’ tactics while the Israel approach can be summarized as ‘divide, dominate, and discriminate.’ In the first case, we have the traditional format of a colonial power, while in the second, the most obvious label is that of ‘settler colonialism,’ yet it must be particularized in relation to Palestine to be fully understood.

 

 

 

The Palestinian National Movement

 

The Palestinian struggle has gone through a series of overlapping stages during the course of almost a century. There was an early period of a building internal resistance by the native population to continuing Jewish immigration during the mandate period coupled with growing Zionist influence and militancy in Palestine. The British colonialist approach tended to support this buildup of the Jewish presence in Palestine, initially feeling more kinship with Jews as mainly fellow Europeans. This widening cleavage eventually led the British and then the UN to seek stability and conflict resolution via partition, dividing the two peoples territorially, with the hope of creating separate polities. The British reached the conclusion, which was endorsed by the UN, that Jews and Palestinians would never peacefully live together, and that separation was the only viable approach. This idea of partition, eventually accepted as a goal by many world leaders, including those representing the Palestinian people, has since the 1990s morphed into ‘the two state solution.’ Among its original flaws, aside from the arrogance of imposing a solution from without and above, was the dispersion of the native Palestinian population throughout all of Palestine, whereas the Jewish population was confined to certain portions of the country. This meant that even with dispossession many Palestinians would find themselves captive in the incipient Jewish state, and consigned to the status of a subjugated minority in what had been their homeland for countless generations.

 

The failure of partition led to a phase of Arab belligerency in relation to the Palestinian struggle. In wars waged in 1948, 1956, 1967, and 1973, it was the goal of neighboring Arab countries to liberate Palestine and Jerusalem by joint military action. These efforts were unsuccessful, resulting in a series of Israeli military victories, coupled with territorial expansion, and belligerent occupation.

 

The failure of such liberation from without was followed by a period of resistance from within, the formation of the Palestinian Liberation Organization under the leadership of Yasir Arafat. This rise of national resistance activity was especially pronounced in the years following the 1967 War, a period of nationalist resurgence by the Palestinian people. It was in this period that Palestinian armed resistance activity began being portrayed in the West as ‘terrorism’ and its suppression by Israel was welcomed, especially in reaction to internationalizing the Palestinian struggle through the staging of shocking violent incidents at the Munich Olympics, hijacking, exploding planes, attacking airports and passenger ships.

 

Armed struggle by Palestinians also was discredited and defeated by Israel’ effective counter-terrorist tactics and by its ability to tilt in its favor the media treatment of the conflict. In a spontaneous show of civil society activism, the Intifada of 1987 created a new previously unexpected challenge to Israeli dominance. In a show of populist unity and courage, ‘the war of the stones’ was defiantly waged by the Palestinian people. It communicated to the world the dramatic refusal of the Palestinian people to allow the occupation to be normalized. The inequalities in weaponry and suffering between the two sides began to shift the balance in the war of ideas and images, especially giving enhanced credibility to Palestinian narratives of victimization.

 

In response, the conflict once again became internationalized. The United States playing a leading role, culminating in the formulation of the Oslo Framework of Principles solemnized by Itzaak Rabin and Yasir Arafat with a historic handshake on the White House Lawn in 1993. Oslo diplomacy reflected the power disparity that exists between Israel and Palestine, and the naively bewildering trust of the Palestinian leadership in the good offices of the U.S. Government to deliver a decent agreement. It should not have been surprising that the diplomacy over these many years was of a one-sided variety that relied on fruitless periodic negotiations between the parties, with the United States serving as intermediary and wrongly assigning blame for failures to find an agreed solution to the inflexibility of the Palestinians.

 

The unwillingness of Israel even to stop settlement expansion during the negotiating sessions both exhibited the one-sidedness of the process and the underlying absence of political will in Israel to reach a fair settlement. Of course, there is an element of subjectivity with respect to the content of ‘fair,’ but international law could have offered guidelines had it been allowed to be relevant. And what is objectively clear was translating Israel’s unlawful ‘facts on the ground’ into new negotiating positions that continuously diminished Palestinian prospects. In retrospect, the Oslo diplomacy was based on the relative bargaining power of the two sides, combined with the intensity of their respective political will. It was also shaped by the American deference to Israel’s policy priorities, above all, its refusal to give ground on the right of return of dispossessed Palestinian refugees or to accept shared governmental authority in Jerusalem.

 

The intifada was the basis for what later became the legitimacy war strategy of struggle. The energy of Palestinian resistance shifted from top down to bottom-up, that is, to the agency of civil society. The formal authority or top-down Palestinian leadership is being bypassed. There is a rejection under existing conditions of both armed struggle and inter-governmental diplomacy, including via the UN. Major mobilization efforts are directed at delegitimizing Israeli policies and practices, as well as stimulating militant forms of nonviolent coercive support for Palestinian empowerment and liberation. This Palestinian version of a legitimacy war has been deeply influenced by the successful anti-apartheid campaign in South Africa, and has centered its actions in relation to a comparable BDS Campaign that responded to an appeal from a coalition of Palestinians NGOs in 2004, and has been gaining global momentum, including within the United States, especially, in the aftermath of the massive military onslaughts carried out against Gaza in 2008-09, 2012, and 2014.

 

Many sympathetic commentators believe that the Palestinians are winning this Legitimacy War, including the important Palestinian founder of the Electronic Intifada, Ali Abunimah. It is also the thesis of my book Palestine: The Legitimacy of Hope. I take note of the international experience since the end of World War II in which the side that prevailed in a Legitimacy War generally controlled the political outcome of conflicts, despite being militarily inferior. Recourse to a Legitimacy War strategy usually reflects two kinds of developments: a societal sense of moral outrage that combines with the refusal of governments and international institutions to promote a just solution.

 

This unfolding of the legitimacy discourse has definitely moved in a direction favorable to Palestinian hopes. In the years following World War II, Israel was seen as the David battling the Arab Goliath, with Israel scoring unexpected military victory after military victory against hostile larger neighbors accused of seeking to throw the Jewish people into the sea. The Palestinians were portrayed as ‘rejectionists’ that defied the UN’s plan widely deemed at the time in the West to be a reasonable compromise. This negative image of Palestinian political behavior was further strengthened by the portrayal of Palestinian resistance as ‘terrorism.’ This violence was widely perceived as unacceptably threatening the Jewish people, and reminded the world of the Holocaust and the fate of Jews during the Nazi period. Such a link between Jewish victimization in the Holocaust and the Palestinian/Arab struggle was strongly promoted through intense Israeli propaganda efforts. (hasbara)

 

This image, which remains strong in the West, and certainly is powerful in the United States where Israel is viewed not only as the most admirable and dynamic country in the region, but also as the most important strategic partner Washington possesses and a recipient of intense support in Christian evangelical circles. This strategic bonding was greatly facilitated by Israel’s military prowess as revealed in its victorious wars, especially the 1967 War, and given additional reinforcement through its long experience of counter-terrorism that was treated as a major Israeli contribution to American security policies in the aftermath of the 9/11 attacks.

 

Concluding Comments

 

The basic drift of my argument is as follows:

            –UN authority was not able to obtain a solution;

            –armed struggle and international statecraft were tried, but both failed to resolve the conflict or improve the Palestinian position;

            –what this leaves is either Israeli unilateralism, carrying out the Zionist endgame of incorporating the whole of Jerusalem and the West Bank into Israel, and claiming to be the state of the entire Jewish people, or a Legitimacy War victory by the Palestinian people that induces a cycle of ‘new diplomacy’ on a level playing field;

            –in the interim, any further attempts to revive the Oslo diplomacy, even enjoying should they enjoy the cynical of the Netanyahu government should be resisted as a dead end that is more harmful to the Palestinian struggle than is facing the realities of Israeli expansionism.

 

Given this understanding of the conflict, and considering the extraordinary record of military assistance given to Israel by the United States government, the American people have an increasingly dishonorable connection to the conflict. The American indulgence of Israeli exceptionalism includes issuing a free pass to Israel when it secretly became a nuclear weapons state. American citizens have a special responsibility for the long ordeal of the Palestinian people. The Jewish philosopher, Abraham Heschel observed “[f]ew are guilty, but all are responsible.” The Legitimacy War scenario gives each of us ample opportunities to exercise our individual responsibility. We owe the Palestinian people and ourselves nothing less.

 

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Opposing Impunity for Geopolitical Criminality

5 Apr

 

 

Responding to intense pressure from the usual sources William Schabas, a prominent and respected expert on international criminal law, recently resigned as Chair of the UN expert commission of inquiry into war crimes allegations arising from the massive Israeli military operations in Gaza during July and August of 2014. These issues relating to international criminal accountability have also received recent prominence due to Palestine’s adherence to the Rome Treaty making it a party to the International Criminal Court, an initiative that generated an enraged punitive reaction on the part of Israel as well as an angry denunciation by Washington. On display in these instances is the struggle between extending the rule of law to international state crimes and the geopolitical resistance to such an effort whenever accountability to law is in tension with the pursuit of strategic interests.

Imposing international criminal responsibility upon political leaders and military commanders that occur in the aftermath of wars possesses a dual character from a geopolitical perspective: to vindicate major military undertakings of liberal democratic states and to ensure impunity for the leaders of these same states in the event that their behavior or that of their allies are alleged to be international crimes. These efforts at vindication are associated with strengthening the global rule of law and validating the established order, while impunity is invoked to insulate powerful individuals and their governments from criminal accountability. The resulting pattern in international life is one of double standards at the level of implementation and hypocritical rhetoric about the importance of a global rule of law based on its universal applicability.

 

Contemporary experience with these issues is grounded in the aftermath of World War II. In 1945 with great fanfare after World War II, especially at Nuremberg in the legal prosecution of surviving Nazi leaders, as well as at Toyko where a series of prominent Japanese personalities who had headed the imperial government and commanded its military forces were accused and convicted of international crimes. These sophisticated ‘show trials’ were generally endorsed in the West as a civilized alternative to the favored Soviet and British approaches, which would have been to arrange summary mass executions of all Germans deemed responsible for international crimes without making any effort to assess the gravity or accuracy of the charges directed at specific individuals. What was done at Nuremberg in 1945 was for prosecutors to prepare carefully evidence of alleged wrongdoing of each defendant under indictment as well as developing arguments about the legal relevance of the international crimes at stake while giving those accused an almost free hand to offer legal defenses and mitigating evidence as prepared by competent lawyers appointed to render them assistance.

 

In most respects, Nuremberg in particular continues to be viewed as a landmark success in the annals of the progressive development of international law. It is also significant that the outcomes of parallel Tokyo prosecutions of Japanese leaders are virtually unknown except in Japan where they are decried as ‘victors’ justice’ and throughout the world among a few specialists in international criminal law.

 

There are several reasons for the prominence of Nuremberg. First of all, the disclosures of the Holocaust at Nuremberg were so ghastly that some sort of punishment of those responsible seemed to be a moral imperative at the time.

Although the crime of genocide did not yet exist in law, the revelations of the Nuremberg proceedings documented as never before the systematic extermination of Jews and others in Europe. Beyond this, the war was widely believed to have been a just and necessary response to the menace of Naziism and Japanese imperialism, and their embrace of aggressive war. The Allied victory was viewed as decisive in overcoming the fascist challenge to liberal democracy, with the Nuremberg Judgment providing an authoritative rationale for waging a defensive war so costly in lives, devastation, and resources. Finally, the claim to be establishing a structure of legal accountability that took precedence over national law seemed integral to the postwar resolve to keep the peace in the future and deter aggression by reminding all leaders of the possibility of criminal accountability for initiating a war or abusing people under their control. The advent of nuclear weaponry reinforced the moral and political conviction that major wars must now be prevented by all available means, including this warning to leaders and military commanders that their actions could become the subject of criminal prosecution.

 

At the same time, this Nuremberg/Tokyo experiment was tainted from the outset. It was clearly victors’ justice that incorporated double standards. The evident crimes of the winners in the war were not even investigated, including the atomic bombings of two Japanese cities, which were viewed around the world as perhaps the worst single acts of wrongdoing throughout the course of the entire war, and only the Nazi death camps were in some way equivalent in relation to legality and morality. There were official statements made at Nuremberg that those who sat in judgment of the Germans would in the future be subject to similar procedures of accountability if they committed acts that seemed to be crimes under international law implying that the rule of law would replace victors’ justice. In effect, the claim made on behalf of moral credibility and political fairness was that this Nuremberg/Tokyo approach would assume the attributes of the rule of law by treating equals equally in future conflicts. Such expectations, if scrutinized, seemed to reflect the hopes of ‘liberal legalists’ in universal legal standards, but were never realistic goals given the structure and nature of world politics.

 

In effect, this Nuremberg promise could not be kept because geopolitical primacy continues to set the limits of legal accountability. Although there has existed an International Criminal Court since 2002, and ample grounds for believing that some major sovereign states have committed international crimes, there have zero prosecutions directed at dominant political actors, and not even investigations into possible criminality have been launched. Such a pattern results from a normative gap in world order that is not likely to be closed soon. It is a gap that is most visibly expressed by reference to the right of veto possessed as a matter of law by the five permanent members of the UN Security Council. This right of veto amounts to an institutional grant of exemption from the legal obligation to comply with the UN Charter on matters of peace and security. For these five states and their friends and allies, compliance is discretionary, and non-compliance is in effect ‘a right.’ In this regard, the UN Charter is itself a product of what might be called ‘geopolitical realism,’ which takes precedence over the apolitical aspirations of ‘liberal legalists.’

 

And yet, the impulse to hold accountable those who commit crimes against the peace, war crimes, and crimes against humanity remains strong among moderate democratic governments and in some sectors of global civil society. As a result there is some further development of the Nuremberg idea, although the fundamental tensions between hard power and establishing a credible rule of law with general applicability remains. During the 1990s the UN Security Council established ad hoc international tribunals to assess criminal responsibility associated with the breakup of former Yugoslavia and in relation to the genocidal massacres in Rwanda. In these North/South settings, there was more willingness to allow all sides to bring forth their arguments about the criminal behavior of their adversary since there were no allegations directed at geopolitical heavyweights. That is, the approach of liberal legalists became practical in these situations where no high profile geopolitical actor is being accused of an international crime.

 

The International Criminal Court was itself brought into being in 2002 by an unusual coalition of forces, joining governments with a great many NGOs drawn from around the world in a joint project. What came into being is an international institution with a mandate to investigate and prosecute, but lacking the participation and support of the dominant states, and operating within a framework that up to now has been deferential to the sensitivities of sovereign states in the West. Operating in such a limited way has led the ICC in its first decade to focus its attention almost entirely on African leaders, while looking the other way with respect to geopolitical actors. Liberals conceive of this as progress, doing what can be done, and beneficial to the extent that it apprehends some persons who have been responsible for atrocities and crimes against humanity. Critics of the ICC view it as another venue for the administration of ‘victors’ justice’ and an inscription of Western moral hegemony that entails a cynical expression of double standards. Both interpretations are plausible. The ICC is currently facing an identity test as to whether it will undertake investigations of alleged Israeli criminality made at the request of Palestine. Its institutional weight is being demonstrated by the degree to which the Israeli leadership reacts with fury, punitive policies, and intense anger directed at the Palestinian Authority for raising such a possibility. It should surprise few that Israel’s backlash against the ICC is supported by the United States.

 

For centuries there has been recognized the capacity of national courts to act as agents of law enforcement in relation to international wrongdoing. Such a judicial role was long exercised in Western countries in relation to international piracy, which was viewed as a crime against the whole world and hence could be prosecuted anywhere. Such an extension of international criminal law is based on ideas of ‘universal jurisdiction,’ strengthening the capacity of international society to address serious crimes of state. This kind of approach receive great attention in relation to allegations of torture made against the former Chilean dictator, Augusto Pinochet, after he was detained by Britain in response to a 1998 request for extradition by Spain where a court stood ready to prosecute on the basis of indictments already made. After a series of legal proceedings in Britain the House of Lords acting as the country’s highest judicial body decided that Pinochet should be extradited, but only for torture charges relating to a period after torture became an international crime within Britain. In theory, national courts could become much more active in relation to universal jurisdiction if so empowered by parliamentary mandate, but again doing so without challenging geopolitical red lines. When Belgian courts threatened to proceed against Donald Rumsfeld because of his alleged authorization of torture in Iraq, political pressures were mounted by Washington, including even threats to move NATO. In the end, Belgium backed down by revising its national criminal code so as to make it much more difficult to prosecute international crimes that occurred outside of Belgium and for which Belgians were not victims or perpetrators.

 

Civil society has also acted to close the normative gap created by patterns of geopolitical impunity. In the midst of the Vietnam War, motivated by a sense of moral outrage and the paralysis of official institutions when it came to challenging American behavior, Bertrand Russell organized a symbolic legal proceeding that investigated charges of criminality in 1966 and 1967. Prominent intellectuals from around the world were invited to serve as a jury of conscience, heard evidence, issuing their opinion as to law and facts at the end. Inspired by this Russell Tribunal experience, the Permanent Peoples Tribunal was established a decade later by citizens, operating out of Rome, holding sessions on issues where there existed moral outrage, legal prohibitions, and institutional paralysis, symbolically challenging geopolitical impunity. In 2005 there was organized in Istanbul by a dedicated group of female activists an independent tribunal to investigate war crimes charges against British and American political and military leaders, as well as corporate actors associated with the Iraq War. The Iraq War Tribunal relied upon a jury of conscience chaired by Arundhati Roy to pronounce upon the evidence. Of course, such a tribunal can only challenge impunity symbolically by influencing public opinion, and possibly through encouraging boycotts and other moves that delegitimize the claimants of power and possibly alter the political climate. Nevertheless, it plays a role in the legitimacy war dimensions of international conflicts, providing an alternative narrative to the discourse

disseminated by geopolitical forces and giving encouragement to civil society activism by providing a convincing rationale for concluding that contested behavior violates fundamental norms of international law and morality.

 

In summary, it is still accurate to observe that geopolitical primacy inhibits the implementation of international criminal law from the perspective of a global rule of law regime that treats equals equally. At the same time, ever since Nuremberg there have been efforts to end the impunity of those guilty of international crimes in war/peace situations and national settings of oppressive rule. These efforts have taken several main forms: (1) the establishment by the UN of ad hoc tribunals with a specific mandate as with former Yugoslavia and Rwanda; (2) the establishment of a treaty based international institution, the International Criminal Court, with limited participation and disappointing results to date; (3) reliance on universal jurisdiction to activate national courts to act as agents on behalf of international society with respect to enforcing international criminal law; (4) the formation of civil society tribunals to assess criminal responsibility of

leaders in situations of moral outrage and global settings that render unavailable either inter-governmental or governmental procedures of accountability. (1)-(3) are projects of liberal legality, while (4) draws on more progressive jurisprudential energies outside the statist paradigm.

 

In the end, there is posed a choice. One possibility is go along with the one-eyed efforts of liberal legalists, most notably mainstream NGOs such as Human Rights Watch, silently acknowledging that the rule of law cannot be expected to function in relation to many serious international crimes due to the hierarchical and hegemonic structure of international society. The other possibility is to insist there can be no international justice so long as there exists a regime of ‘geopolitical impunity.’ In both instances, the contributions of civil society tribunals are needed, both for the sake of symbolic indictment and documentation of wrongdoing, and to acknowledge civil society as the moral and legal conscience of humanity. It must be admitted that only among liberal democracies are such self-critical initiatives of civil society tolerated, although such undertakings are derided and marginalized by mainstream media as the work of a ‘kangaroo court.’ Obama’s refusal to look back at the international crimes alleged against leading members of the Bush presidency is one awkward admission of the limits on legal accountability; such reasoning if generalized would invalidate any concern with all forms of past behavior, and hence any notion of accountability for all crimes. In such a dysutopia criminal law might exist, but by habit and expectation it would never be implemented, however severe the crime and dangerous the criminal. In the world we inhabit, without kangaroo courts international criminal law would continue with its limited writ, and there would no tribunals whatsoever to assess the criminality of the most powerful political actors on the world stage that menace many vulnerable peoples in the world.

 

 

 

 

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‘Lawfare’ and Liberation

23 Feb

Positive and Negative Forms of ‘Lawfare’

 

Issues of law and ‘lawfare’ are recurrent features of foreign policy debates in the United States. On the side, are efforts by peace activists and others to condition the behavior of all states, and especially the United States, by reference to authoritative limits on national discretion as encoded in the UN Charter, a binding treaty. In opposition to a law-oriented foreign policy for the United States are a variety of arguments that rely either directly or indirectly on a version of ‘American exceptionalism.’ Such arguments do not repudiate international law, but condition its applicability to American behavior and that of American allies, and insist on the implementation of international law in relation to the alleged unlawful conduct of adversaries (e.g. Russia involvement in eastern Ukraine)

 

On the other side of this discourse is the various forms of ‘lawfare’ as an instrumental use of law to achieve valued ends, positive or negative. In these roles international law can mobilize public opinion and government policy to support or oppose particular undertakings. In this limited sense it is appropriate to conceive of ‘lawfare’ as ‘soft power goepolitics’ or as a form of ‘asymmetric warfare’ waged by political actors deficient in hard power.

 

It was during the presidency of George W. Bush that the neocons decided that recourse to international law was a weapon of the weak that interfered with the grand strategy of the United States, especially in the Middle East. The terminology of lawfare was adopted by both advocates of reliance on international law as constraints on American (and Israeli) policy and by those who sought to denigrate invocations of international law as obstructive tactics that interfered with the protection of security in a post-9/11 world. In reaction to the Goldstone Report (2009) there was launched a notorious ‘Lawfare Project’ that viewed reliance on international law within the UN setting in a manner highly critical of Israel was a new form of ‘asymmetric warfare’ that needed to be countered to avoid the delegitimizing of Israel as a democratic sovereign state. This kind of interpretation dominated a conference at Columbia Law School, featuring the participation of the Dean, David Schizer, that denounced the Goldstone Report and human rights NGOs and was organized by a coalition of pro-Israeli organizations.

 

I regard lawfare as the use of the rules and procedures of law more neutrally, as instrumental uses of law to achieve or block policy outcomes. My focus is on international law, but the same dynamics apply to internal uses of law. The website, ‘LAWFARE,’ affiliated with the Washington think tank, The Brookings Institution, and bolstered by the active participation of some Harvard Law School conservative faculty, uses lawfare in this neutral, instrumental way, although its government oriented biases dominates its commentary.

 

There is a problematic side to international law that reflects its crafting and evolution over the centuries. International law definitely was developed to rationalize the interests and projects of the dominant political actors in the West. International law proved useful in giving a legal cover to colonial rule, unequal and imposed treaties, and to stabilize the expropriation of the natural resources of countries in the global South. At the same time, counter-hegemonic efforts were made to give international law quite different impacts, especially in Latin American settings. The effort was to put forward international law doctrines to strengthen the sovereign rights of weaker countries, especially in the context of economic relations.

 

Beyond the law on the books, there are the ambiguities created by state practice, especially with regard to peace and security, given the absence of any central governing authority or legislative institution on a global level to pronounce upon disputes about interpretation or to agree upon changes in governing rules. As a result, many ‘violations’ of international law serve as ‘precedents’ for the establishment of new norms; power generates law, and its interpretation, whether or not it serves the cause of justice. Further, with the veto in the UN Security Council giving the permanent members, and also indirectly their friends, a ‘legal’ right of exception with respect to compliance with international law. Such an interface between power and law offers an additional reason to be skeptical about any present claims of a global rule of law.

Against this background, I find it clarifying to distinguish between positive and negative uses of lawfare. I identify positive uses to be efforts to insist that international law be upheld to the extent that it serves values of peace, justice, and human dignity, and that its guidelines and conceptions of right, be generally treated as authoritative in diplomatic arenas concerned with the peaceful resolution of conflicts or initiatives designed to implement international criminal law, including making use of procedures to impose accountability on leaders of sovereign states. In these positive uses, there is an overall compatibility between lawfare and the pursuit of justice, although to express this conclusion inevitably reflects subjective perceptions and outlook. Other commentators on international law can and do have different views on such matters.

 

I identify negative uses of lawfare to be efforts to denigrate reliance on the procedures and norms of international law in seeking to pursue rights or hold individuals accountable for violations of international criminal law. The neocons were clear about their refusal to bind the pursuit of American foreign policy goals by shows of respect for international law. Their visions of American grand strategy regarded it as naïve and unhelpful to introduce international law dimensions into policy debates about the use of force. In this vein, thinking mainly about uses of force in defiance of the UN Charter and international law, several prominent neocons, including Douglas Feith and Paul Wolfowitz, showed their contempt of international law as nothing more than ‘a weapon of the weak’ that should not be allowed to alter the behavior of the strong, and in effect, justify the disregard of such legal objections to hegemonic policies as mere tactics of the outgunned side in an asymmetric war.

 

By way of illustration, the exclusion of international law from the Oslo Framework for resolving the Israel-Palestine conflict was clearly an effective instance of negative lawfare, denying for many years the Palestinians the benefit of claiming their rights by reference to international law. An example along the same lines were the punitive responses made by Israel and the United States to initiatives of the Palestinian Authority to seek statehood within the UN System and then on that basis to become a party to international treaties, including most controversially the Rome Treaty, which facilitates access to the International Criminal Court. The essence of this important example of negative lawfare centers on blocking, retaliating against, and denigrating attempts by political actors to make use of available procedures and legal norms to uphold their rights against those who rely on hard power to sustain oppressive structures. .

 

Lawfare can operate negatively or positively on any level of social interaction. When activists seek to encourage divestment of holding in companies doing business associated with seeking commercial gain from transactions or projects with unlawful Israeli settlements this is positive lawfare, with unlawfulness serving as an indicator of illegitimate behavior. When such initiatives are blocked by a legal technicality to frustrate efforts to encourage or demand divestment, invoking law becomes negative lawfare. This happened recently at the University of California at Davis. Interestingly, as in this divestment context, what is being called ‘law’ are organizational rules operative with a university setting, and not associated with legal rules generated by governmental institutions.

 

There is no way to simplify or generalize the role of law in human affairs. Its proper assessment depends on taking into account the structural circumstances (for instance, law as administered by Israel as the occupying power in the West Bank imposes unjust and coercive policies and practices) and on context (for instance, Palestinian reliance on their claims of right based on international law with respect to the right of return of Palestinian refugees, Israeli settlements, status of Jerusalem, control of water). Legal discourse disputes these rights in a variety of ways. Palestinians invoke the authority of the UN General Assembly to vindicate their claims, while Israel claims the authority to put forward its own ideas about insisting that occupied Palestine is a territory of ‘disputed sovereignty’ and as such outside the domain of international humanitarian law.

 

As long as complex societies exist and actors have their own agendas and priorities, rules and procedures will be manipulated for the benefit of one or

another actor. This inheres in social process. What has happened recently calls for further reflection. Law has been used as an instrument to seek justice and law has been used as a means to gain and secure positions of strategic advantage. ‘Lawfare’ merely makes this tug of war between those that want to invoke international law and those that believes it unduly burdens statecraft

a more systematic reality.

 

 

 

 

 

 

 

 

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