[Prefatory Note: The following post is a modified version of a text published in TMS (Transcend Media Service) on 5 October 2021. It assesses the record of the UN over the decades on the basis of its constitutional design, its operational experience, and the gap between UN capabilities and the global need for dramatically enhanced human solidarity mechanisms.]
Worthy, Worthless, and Harmful
I was recently a guest on a TV show that had as its theme “UN: Worthy or Worthless?” It struck me as a misleading question as the UN for its first 75 years was in different settings worthy and worthless, or actually worse than worthless. It was worthless, or almost so, if the appraisal if based either on the war prevention/prohibition of aggression master norm of the UN Charter or the stirring familiar words of commitment at the beginning of the Charter Preamble: “We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.” Such a pledge could be called almost worthless, especially its apparent grant of agency to ‘peoples’ on such grave matters of state as recourse to war, as well as by purporting to have substituted a global rule of law for war as a social institution and to have displaced the primacy of geopolitics. The implication that the strong as well as the weak were to held accountable for a peaceful resolution of conflicts or for transgressions of fundamental legal norms was pure dream talk as became obvious even by only reading beyond the Preamble to the Charter text. Yet this pretense of reaching for the stars is far from the whole UN story.
To begin with, the UN didn’t ever seriously aim as high as the words of the Preamble would lead one to believe. The UN was primarily hoped to become a lasting presence on the global stage, and this it has accomplished. The Organization managed to induce nearly every country on the planet to join, and afterwards value its membership sufficiently to stay involved during the decades of Cold War high tension that produced deep splits in world politics. It is impossible to assess whether establishing and maintaining this arena providing many venues for diplomatic contact between adversaries had a significant moderating effect on conflict that helped save humanity from a catastrophic third world war that likely would have been fought with nuclear weapons. But unlike the League of Nations the fate of UN was not decided before it was even tested by aggression and war. The original champion of the League, the United States, refused to join. This stuck a heavy blow to the birthing process of the League, whose reputation was further seriously undermined by the subsequent withdrawals of such important member states as Germany and Japan, with many others following for a variety of reasons.
By contrast, the UN has achieved and maintained a universality of participation that confirms the beliefs prevailing even among the most cynical political leaderships among national governments that it is more advantageous to be active within the UN than to rely on going it alone. Understanding why this has become so, even among detractors of internationalism as is the case with virtually the entire political class of foreign policy advisors in P-5 states who continue see global issues through the anachronistic optic of ‘political realism.’ Such realists see the UN as a useful enough foreign policy tool to retain, so long as it does not encroach on the domain of vital national interests. The UN’s survival and usefulness is a partly a result of Members and high-level UN civil servants understanding and respecting the strong constaints on its effective authority.
Framing Faustian Bargains
This mild, but indispensable governmental backing of the UN probably occurred because the Organization was deliberately designed by its founders to entail an unconditional surrender to the machinations of geopolitics. First, and foremost, by constitutional design the UN gave the winners in World War II permanent membership and a right of veto in the Security Council the only organ of the UN with authority to reach obligatory decisions. In effect, this was an acknowledgement that the UN had neither the authority nor the intention of overriding the political will of these five permanent members, and would have to live with or without their discretionary adherence to Charter norms and procedures, especially in the domain of international peace and security, and behavioral patterns based on self-restraint and prudence. Such hopes of voluntary compliance were not entirely in vain, but often seemed so, particularly at times of geopolitical confrontation, perhaps most memorably during the Cuban Missile Crisis( 1962). Catastrophic adversity was avoided throughout the Cold War mostly by good luck, although some would give credit to doctrines of mutual deterrence and the related fear factor arising from rival arsenals of nuclear weapons poised to launch missiles if attacked. The UN was usually on the sidelines anxiously watching international crises unfold, reconciled to its role as a virtual spectator, or at most, a helpless commentator. [See definitive exploration of this assertion in Martin Sherwin, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis, (2021)] In other words, the UN by its constitutional framework and its operational reality defers to the most dangerous states in the world as signified by hard power capabilities. This affinity between hard power capabilities and P-5 status was reinforced by the fact that the five permanent members of the Security Council were also the first five countries to acquire nuclear weapons.
The second rationale for this hierarchy of membership in 1945 was to make a maximum effort to avoid a repetition of the League experience. From this perspective it was imperative to keep major states involved as active participants even if discontented with what the UN was doing in specific contexts. In practical effect, this meant mostly persuading the Soviet Union that it was in its interest to belong as in the early UN experience the Soviet Union was consistently outvoted on central peace and security issues. Franklin Roosevelt most notably was of the opinion that the UN would fare better than the League if geopolitical ambitions and rivalry were given recognition and free space within the Organization rather than being carried on by non-Members acting on their own in the unruly jungle of world politics. FDR also naively believed that the anti-fascist alliance that held firm throughout World War II would stay together to assure the peace.
The Soviet Union came to a dramatic appreciation of the importance of maintaining participation when its absence from the Security Council in 1950 due to a temporary protest against the refusal of the UN to recognize the Chinese Peoples Republic as representing China meant that it lost the opportunity to veto the Council decision to condemn North Korean aggression and give its blessing to the action by Western governments to join in the operations of collective self-defense on behalf of South Korea. The Soviets reacted by immediately reoccupying their seat in the Security Council and never again made such a tactical mistake. It is significant that what they didn’t do was to threaten or actually withdraw.
In a sense, this deference to geopolitics involved a pair of Faustian Bargains. In both instances, the UN refrained from its inception to make any serious attempt to impose its authority on geopolitical actors, which introduced a gaping right of exception into all Security Council proceedings. It is mostly the operational reality of this concession to hard power that leads many in the public and media to the perception that the UN is worthless as it is seen as playing no role in wars that involve the participation of P-5 members. This perception has been reinforced by patterns of unlawful behavior on the part of these five states, each of which has conducted military operations that flagrantly violated international law as well as the more specific normative architecture of the UN’s own Charter. We cannot know what would have ensued after 1945 if there had been no permanent membership and no veto in the Security Council, but we can make a good guess. The UN might have turned into a Western anti-Soviet alliance or would have completely lost its relevance as a result of political paralysis, debilitating withdrawals, and uses of force in manifest violation of the UN Charter. Another line of conjecture would seek to imagine the likely UN evolution if the FDR image of keeping the East/West alliance vibrant with a new priority assignment of keeping the peace in the dawn of the nuclear age.
Achievements of The UN System
When we turn to the case for worthiness, the argument is on one level obvious and on anther is somewhat subtle and elusive. The obvious part is that the resources and energies of the UN System are concerned with much more than the peace and security agenda, providing guidance and valuable assistance in such varied areas as development, human rights, economic and social policy, environment, health, culture, and education. Beyond these substantive domains the UN provides indispensable auspices for the management of complex interdependence for many mutually beneficial transnational undertakings. Among the most important UN contributions is host a variety of cooperative activities comprising multilateral diplomacy of global scope. The UN has a strong record of offering its facilities and backing for lawmaking treaties covering a diverse range of global concerns including the public order of the oceans, peaceful uses of outer space, protection of endangered animal species, world trade.
The subtler case regarding the UN as a worthy contributor to a better world is its role in the domain of symbolic politics, which can be understood by regarding the UN as ‘a soft power superpower.’ The UN Secretary General is almost alone as a globally respected voice of reason and empathy on the gravest issues facing humanity, but also on occasion as a gentle critic of geopolitical excess and as a trustworthy alarmist with respect to climate change and the COVID pandemic. The periodically elected administrative leader of the UN exert some influence on world public opinion through their statements of concern, but rarely challenge directly geopolitical behavior.
More relevant is the capacity of the UN, primarily in the General Assembly, but throughout the UN System to shape perceptions of legitimacy and illegitimacy in ways that exert important influences throughout civil society. The reality of such a perception can be most easily captured by the degree to which states struggle to achieve UN approval and to avoid having the UN pass critical judgment on their behavior. The UN endorsement of the anti-apartheid campaign is one of the factors that both mobilized activism in civil society and eventually led the leadership of the South African apartheid regime to reverse course. The frantic pushback by Israel to UN-backed allegations of racism and criminality, and more recently, of apartheid is further confirmation that what the UN does symbolically matters, and sometimes deeply.
Although Currently Worthy, a Stronger UN is Possible and Necessary, although it seems Unlikely
The COVID experience exposed the essential weakness of the UN when it came to promote and protect human interests in a health crisis of global scope. The ethos that prevailed was both an exhibition of the non-accountability of the geopolitical actors, and more broadly, the prioritizing of national interests and shared civilizational values in a politically fragmented world order. The imperative of global solidarity was too weak to prevent the scandalous hoarding of vaccines, which made descriptive such pejorative labels as ‘vaccine apartheid’ or ‘vaccine diplomacy.’ This experience is disturbing beyond COVID as it offers a metaphor for the global persistence of statist world order, which is partially enacted by marginalizing the UN in the face of an acute crisis of global scale. The record of response is only slightly better when it comes to fashioning a collective response to the dire expert consensus on what needs to be done about climate change. [See Sixth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) (2021)]
We are left with the haunting question of whether pressures toward unity and global public goods can replace geopolitical rivalry and ambition in the years ahead, and translate such awakening into a movement capable of achieving a UN oriented and empowered to serve, at least selectively, the human interest rather than as in the past, the interplay of national interests or the prorities of geopolitics.
Global Justice in the 21st Century 
Is Israel an Apartheid State?
26 Mar[Prefatory Note: This post was originally published on March 22, 2017 by The Nation under the title “The Inside Story of Our UN Report Calling Israel an Apartheid State,” the text of which can be found at this link: https://www.thenation.com/article/the-inside-story-on-our-un-report-calling-israel-an-apartheid-state/ What is below is somewhat modified.]
Is Israel an Apartheid State?
Six months ago, the UN’s Economic and Social Commission for West Asia (ESCWA) asked Virginia Tilley and me to write a study examining the applicability of the international criminal law concept of apartheid to Israel’s policies and practices toward the Palestinian people. We were glad to accept the assignment, and conceived of our role as engaging in an academic undertaking. ESCWA, one of several UN regional commissions, requested the study as a result of an uncontested motion adopted by its 18 Arab member governments.
Almost within hours of its release on March 15, our report [bearing the title “Israel’s Practices Toward the Palestinian People and the Question of Apartheid”] was greeted by what can only be described as hysteria and derision. The newly appointed US ambassador to the UN, Nikki Haley, denounced the report and demanded that the UN repudiate it. The newly elected Secretary General, Antonió Guterres, quickly and publicly called for ESCWA to withdraw the report from its website, and when Rima Khalaf, the head of the commission, resisted, Guterres insisted. Rather than comply, Khalaf resigned, explaining her reasons in a gracious, principled letter to the Secretary General, an eloquent expression of public conscience that is itself extremely rare in UN experience and worthy of the most favorable notice and commentary. [for text of letter see Soon thereafter, the report was withdrawn from the commission’s website, despite containing a very clear disclaimer at its outset noting that the report represents the views of its authors and not necessarily that of ESCWA or the UN.
What is striking about this pattern of action and reaction, which resembles in many respects the US government response to the Goldstone Report (the UN Fact-Finding Mission on the Gaza Conflict of 2008-9), is the degree to which Israel’s officials and supporters, in response to criticism, have sought to discredit and wound the messenger rather than address the message by offering a detailed substantive explanation and defense. Each time such a technique succeeds in this mission of discrediting, wounding, and diverting attention the role of the UN as a promoter of the public good is weakened, and the Organization becomes rather an instrument by which dominant geopolitical forces assert their will at the expense of truth, reason, and human wellbeing.
Virginia Tilley, a professor of political science at Southern Illinois University Carbondale and a leading world expert on apartheid, and I, as well as ESCWA, would welcome substantive discussion and critical feedback, and we had hoped that our analysis and conclusions would provide the basis for debate, dialogue, and further consideration of the recommendations appended at the end. ESCWA, for its part, took steps to ensure that the report lived up to scholarly standards, submitting the draft text to three prominent international jurists, who had been anonymously solicited to offer objective vetting. Each submitted a strong positive appraisal along with suggestions for revision, which we gratefully incorporated before the final text was released. Against this background, it is irresponsible for government officials and others to dismiss our report as a biased polemic, and to do so damages the authority of the UN and respect for international law.
It is also misleading to do what the American and Israeli diplomats did, as well as the media– treating this study as if a report officially endorsed by the UN. Such treatment overlooks the disclaimer on the opening page of the report, which clearly states that the analysis and interpretations presented are those of the authors alone, and are not to be attributed to the UN. In effect, it is a document initiated by a UN agency, appraised for quality by reference to scholarly standards, but not adopted nor even endorsed at this point, although this might happen in the future, a step we as authors would welcome.
During my tenure as the UN’s Special Rapporteur on human rights in the occupied Palestinian territories (2008-14), I witnessed how defenders of Israel attempted to discredit critics. My reports in that post often included sharp criticisms of Israel and other actors, ranging across various topics including defiance of international law, unlawful expansion of settlements, excessive use of force, and complicity of international corporations and banks that do business for profit with the settlements, and others. To my surprise, I never received substantive pushback regarding these specific allegations, but I did have the unpleasant experience of having my words on completely unrelated issues torn out of context, and brought to the attention of UN high officials and important diplomats representing member states. Among my harshest critics were not only the usual ultra-Zionist NGOs, but also Barack Obama’s diplomats at the UN, including Susan Rice and Samantha Power, as well as then-Secretary General Ban Ki-moon. I mention this personal experience only to note that it falls into a longstanding pattern of diversionary rebuttal that prefers to smear rather than engage in reasoned debate about the important issues of law and justice at stake.
The international crime of apartheid was authoritatively specified in the 1973 Convention on the Suppression and Punishment of the Crime of Apartheid. The main elements of the crime consist of deliberate and systematic acts of racial discrimination with the purpose of maintaining unlawful structures of racial domination, that is, a dominant race subjugating another race. Our report also considered whether, in the context of inquiring into the presence of apartheid, it was appropriate to consider Jews and Palestinians as distinct races; we found that there were abundant grounds for doing so. As our report shows, “race” in this legal context is treated as a socially and politically constructed category developed to identify a distinct people. It has no necessary correlation with biogenetic realities, which in this case actually shows an overlap between Jews and Palestinians.
Even Palestinian citizens of Israel, who can vote and form political parties, are subject to many discriminatory laws that impair security and the quality of life. The report also proceeds from the proposition that whether apartheid exists or not depends on the overall treatment of the Palestinian people as a whole, and not by accepting the fragmentation that has been imposed by Israel. Adopting what we believe to be an innovative methodology, we approached this challenge by dividing the Palestinians into four domains that correspond to the manner in which Israel has exercises its authority over the course of many decades, although the specific tactics of control vary through time. In the past, a thorough study by international law scholars found that Israel’s practices in the occupied Palestinian territories are consistent with apartheid [See Virginia Tilley, ed., Beyond Occupation: apartheid, colonialism and international law in the occupied Palestinian territories [Pluto: London, 2012]. It called attention to the discriminatory treatment of Palestinians, who are subject to military administration as compared to the Jewish settler population, which enjoys the full benefit of the rule of law as it is observed in Israel in relation to Jewish nationals. That study found that “settler-only roads,” dual legal systems, and the draconian separation of the two populations into regions on the basis of race hallmarks of apartheid. Repressive practices that have made the lives of ordinary Palestinians a daily ordeal are a core dimension of this racially organized system of control. It should be also noted that according to preferred readings of international law, penalizing and criminalizing nonviolent forms of resistance to apartheid itself constitutes the crime of apartheid.
A second domain investigated in the report involves Palestinians who are residents of Jerusalem. Here the apartheid character of Israeli rule is exhibited in the way the government of Israel severely undermines the human security of Palestinians living in Jerusalem, manipulating their rights of residence as well as imposing a variety of discriminatory practices, ranging from fiscal measures, demolitions, to the arbitrary withholding of building permits.
The third domain deals with the Palestinian minority living in Israel, perhaps the most problematic component in terms of establishing a definition of apartheid that encompasses the entire Palestinian population. In this category are some 1.7 million citizens of Israel, who are allowed to form political parties and vote in elections. But this minority, which makes up about 20 percent of the overall Israeli population, is prohibited by law from challenging the proclaimed Jewish character of the state and is subject to a wide range of discriminatory nationality laws as well as administrative practices that severely restrict their rights, with effects on land acquisition, property, immigration, family reunification, and marital freedom.
International law has detached apartheid from its South African origins; it’s now a stand-alone crime against humanity that does not stand or fall by whether it contains similar features to those that constituted the apartheid regime in South Africa.
A fourth domain, and the one affecting the largest demographic segment, is made up of Palestinians registered as refugees by UN procedures or living under conditions of involuntary exile. In the background is Israel’s rejection of UN General Assembly Resolution 194 (1948), which confirms that Palestinians dispossessed or displaced by Israel in 1948 enjoy a right of return. General Assembly Resolution 3236 declares this right of return or repatriation to be an “inalienable right,” which thus presumably incorporates those additional several hundred thousand Palestinians later displaced by the 1967 war. As far as is known, no Palestinian displaced since the establishment of Israel in 1948 has been granted a right of return to resume residence.
The report argues that the crime of apartheid has been detached from its historical origins in South Africa. Neither the 1973 Convention nor the 1998 Rome Statute underlying the International Criminal Court ties apartheid to South Africa, but rather treats its practice as a stand-alone crime against humanity. Thus, there are important differences between the way apartheid operated in South Africa and the way it is currently being imposed on the Palestinians, but these differences are not relevant to the question of whether it fairly and accurately applies to Israel. One notable difference is that in South Africa the Afrikaner leadership forthrightly proclaimed apartheid as a reflection of its ideological belief in the separation of races, whereas for Israel such a structure of separation on the basis of race is denied and repudiated, and its attribution is treated as an inflammatory insult. There are other differences as well, relating to degrees of labor dependence and the demographic ratio between Jews and Palestinians.
This quasi-permanent structure of domination cannot be justified or explained by reference to Israel’s legitimate security needs.
Our report concludes that Israel has deliberately fragmented the Palestinian people in relation to these four demographic domains, relying on systematic discrimination, including “inhuman acts,” primarily to maintain its control and render resistance more difficult, while continuing to expand territorially at the expense of prospects for Palestinian self-determination. On the basis of these findings—backed up by detailed presentations of empirical data, including reliance on Israeli official sources—we conclude that the allegation of apartheid as applied to the Palestinian people is well founded and descriptive of the present situation, more so than the terminology of occupation.
As earlier suggested, we are keenly aware that our report is the work of academic investigators and does not represent an authoritative finding of apartheid by a formal judicial or governmental institution. As mentioned—contrary to media coverage and diplomatic denunciations—the report has never been endorsed or accepted by the UN, or even ESCWA. We do recommend such an endorsement, and we urge the UN, national governments, and civil society to take measures designed to encourage Israel to dismantle its apartheid regime and treat the Palestinian people in accord with the dictates of international law and human rights, as well as elementary morality.
The broader setting associated with our contention that Israel has become an apartheid state draws on the reality that there is no peaceful resolution to the conflict on the diplomatic horizon, and thus no foreseeable prospect for ending the discriminatory regime and the attendant suffering of the Palestinian people. This quasi-permanent structure of domination cannot be justified indefinitely by invoking Israeli security needs, which are themselves partly created by the unwillingness of Israel to respect Palestinian rights under international law. A people cannot be permanently repressed in by military force and administrative coercion ways without viewing the structure that has emerged as an apartheid regime. Indeed, part of the reason for not awaiting a more formal assessment of these charges of apartheid is our sense of urgency in ending a set of arrangements that have for so long been responsible for so much suffering and denial of basic rights, above all the right of self-determination.
It remains our central hope, one shared with ESCWA, that the widespread availability of this report will lead to a clearer understanding of the Palestinian plight and encourage more effective responses by the UN, by governments, and by civil society. Beyond this, it is our continuing wish that people of good will throughout the world, especially within Israel, will work toward a political solution that will finally allow Jews and Palestinians to live together in peace, with justice.
Tags: apartheid, Apartheid Convention, ESCWA, Gutteres, international crime, Israel, Palestinian people, racism, Rima Khalaf, South Africa