Global Justice in the 21st Century

Planetary Transformations: A Progressive Quest

[Prefatory Note: Below are three texts: a paper by the widely respected writer and progressive

scholar, Val Moghadam, that describes what it might mean to have a left transformative movement of planetary scope; followed by a short explanatory essay by Paul Raskin, who exercises intellectual leadership of the Great Transition Network (GTN), a project of the Tellus Institute, that has been supporting the general idea that the existing system of organizing the planet is outmoded and dangerous, and the social creativity should be encouraged to envision preferred alternatives, not in the spirit of utopian speculation, but as political projects to be realized by a dynamic mix of commitment, imagination, and struggle; the third text is my comment on Moghadam’s paper. A sampling of the stimulating array of invited comments canbe found at this link–https://greattransition.org/gti-forum/planetize-the-movement. ]

Planetary Transformations: A Progressive Quest

PLANETIZE THE MOVEMENT!
Valentine M. Moghadam

The Historical Conjuncture

In January 2020, as I was writing this essay, Americans celebrated the life and legacy of Dr. Martin Luther King, Jr., whose message of social equality, economic justice, and peace is as relevant today as ever—arguably more so. That month, the US and Iran (the country of my birth) seemed to be on the brink of war. Australia was experiencing climate change-related disaster, the opioid crisis continued to devastate communities and families across the US, and refugees and migrants still faced exclusion and disdain. Income inequality in the US and in many other countries grew ever wider, as the power of capital over labor remained strong. Across the globe, the rightward march of populist politics continued apace.

This is only a small list of the world’s problems, some of which are common to humanity and some specific to nation-states and communities. To echo Lenin, what is to be done? For an answer, we can echo Dr. King: “planetize our movement.” [1] But what is “the movement,” and how can it be planetized?

The World Social Forum, launched in 2001 to assert that a “another world is possible,” attracted civil society organizations and social movements from across the globe, many of them associated with what scholars called the global justice movement, or “the movement of movements.” [2] Then came the global financial crisis, followed by the Arab Spring demanding the fall of authoritarian and corrupt regimes, the European summer of anti-austerity protests, and Occupy Wall Street (OWS), with its rallying cry against the privileged 1%.

A decade later, we face a weakened and increasingly irrelevant WSF, the modest harvest of the Arab Spring along with failed states, the demise of OWS, entrenched neoliberalism, and unabated militarism. These developments have wreaked havoc on communities in the Global South, generating the refugee and migrant waves that resulted in the right-wing populist backlash. Meanwhile, right-wing populist leaders have appropriated some of the grievances and even language of the Left—especially the very early critiques of neoliberal capitalist globalization, as well as the unions’ despair over labor’s displacement and stagnating wages—to win over citizens in country after country.

From a world-historical perspective, we are living in a period similar to the early twentieth century, during which the British Empire was losing its global hegemony. [3] That period led to inter-imperialist rivalries, the Great War, the expansion of socialism and communism, the fascist reaction, and the Second World War. Today, US hegemony is similarly in decline, and the transition and chaos we experience include growing powers challenging that hegemony (China, Russia, Iran); military adventures and the destabilization of states by the US and its allies (e.g., Afghanistan 2001, Iraq 2003, Honduras 2009, Libya 2011, Syria since 2011, Yemen since 2015); right-wing populist political parties and governments; and the ecological crisis.

The moment is ripe for an alternative. Labor unrest has grown around the world, encompassing industrial workers, teachers, health workers, janitors, and others across the Middle East and North Africa, in Latin America, and even in the US. Indeed, we may be nearing a classic Leninist “revolutionary situation,” which could be the culmination of “the world revolution of 20xx.” [4] If so, the Global Left should be better prepared to meet the challenge.

The good news is that there is a “new Global Left” that enjoys a multitude of emerging movements, including climate justice groups led by young people. [5] The rich array of activist groups and the dynamism and passion they display excite a sense of possibility. However, the very diversity of movements and their weak interconnection could constrain the Global Left’s ability to achieve meaningful change. [6] Without consensus around a common agenda, how are we to make the great transition from an entrenched global system based on capitalist profit, top-down decision-making, war, and environmental degradation to a world where people and the planet take center stage in politics and policy? Surely we need not only resistance on a multiplicity of grounds, but also agreement on a clear, coherent, and feasible alternative to the unjust, undemocratic, and unsustainable status quo.

A Missing Global Actor

The socialist and communist movements and parties of the nineteenth and twentieth centuries pinned their hopes on the capacity of a united working class, defined as a largely male industrial laboring class (“the proletariat”), to tame and challenge capitalism. In the latter part of the twentieth century and into the twenty-first, the nature of that class changed, now encompassing a broader spectrum of working people, such as those in public and private services (including care workers) who labor under the supervision of highly paid managers and administrators, along with the precariat and gig economy workers. On the Left, however, many do not regard that more inclusive working class as a central actor, despite its composition spanning race, ethnicity, religion, national origin, and gender. [7]

Instead, today’s movements—certainly in the US—seem to define actors based on particular identities and interests. Rather than the singular actor of yore (the working class), today there is a multiplicity of actors across numerous movements. The question arises as to whether such a multiplicity of actors can generate the necessary coordination and craft a strategy to challenge the powers-that-be—economic and political elites situated in national governments; in the financial, corporate, and military sectors; and in institutions of global governance. If those elites are so well connected, why is it so difficult for our numerous movements to coalesce around a shared identity and agenda?

In my estimation, the Left has lost sight of the proverbial forest for the proverbial trees. It has gotten far too caught up in culture wars and battles over identity, forgetting the centrality of political economy to the hidden injuries not only of class, but also of race and ethnicity, women’s subordination, the destruction of the commons, and inter- and intra-state rivalries, violence, and war. This strategic shift away from political economy has removed the Left’s traditional constituency—the working class in all its breadth and diversity—from a meaningful role. The shift also has confused the Left’s priorities. For instance, we cannot truly address the problems of racism and discrimination without giving urgent attention to the systemic problems of class: low-income communities devastated by precarious employment, the loss of public investment, dirty air and water, poor-quality schooling, and bad health.

The politics of class cannot be divorced from those of race and of sex, because class is imbued with race and sex, and race and sex are themselves imbued with class. Under patriarchal and racist capitalism, there is no class exploitation without racial and sexual oppression. The separation of the three intersecting dimensions across unconnected movements—often lacking in understanding of and solidarity with each other—is among the unfortunate outcomes of our times, caused to some degree by partial, segmented internal politics, but largely by the relentless and effective political, cultural, and ideological campaigns of the ruling elites.

Catalytic Action Now

In the wake of the global financial crisis, it became clear that the world needed a new economic system. Change did not come about, however. To offer a viable alternative to financialization and runaway “shareholderism,” movements need to stand for workplace democracy and shared management, and for long-term rational and people-oriented planning over short-term profit. Although breaking up huge corporations should be the goal, taxing them adequately and using the revenue for societal needs and rights, not for continued militarism, can steer society in the right direction in the interim.

At the same time, we also need to think bigger. Contrary to the conventional wisdom that socialist and communist experiments all ended in failure, I believe that there is a lot we can learn from them. Indeed, this “failure literature” lacks balance and historical accuracy. The great socialist, communist, and liberation movements of the past may not have accomplished all that they could have or intended to, but they were very effective providing education and culture for the poor and imparting the legacy of equality, economic justice, and women’s advancement. The Communist movement had its shortcomings, but it promoted women’s equality and racial equality, supported numerous liberation movements, and checked capitalist and imperialist expansion.

In contrast, our recent movements have failed even in the short run. They may have changed the subject—certainly OWS highlighted the problem of income inequalities and helped reintroduce capitalism and its flaws into the national conversation in the US—but they could not compel change of the system itself, much less dislodge its major actors and beneficiaries. Unlike the progressive movements of the late nineteenth century and much of the twentieth century that gave us socialism and social democracy, an end to British colonialism, Third World development, and the demise of authoritarianism in southern Europe, the movements of the twenty-first century have not been able to make headway in structural or systemic terms. Instead, the collapse of world communism—celebrated across the globe—actually generated new crises and chaos.

One response to the crisis has been the new municipalism, which aims to implement localized democratic practices and people-oriented resource allocation. In one promising example, the administration of the Communist mayor of Santiago, Chile, has created a “people’s pharmacy,” offered cheap eye-care and glasses, increased public housing, and embraced leftist approaches to community safety, among other progressive people-oriented initiatives. [8] But localism is not enough, as many of our problems are global in nature. The recklessness of the financial sector has had ripple effects across borders; the obsession with economic growth and capital accumulation has generated a massive, global environmental crisis. That brilliant experiment in radical democratic feminist municipalism—Rojava in northern Syria—was overturned in October 2019 by a brutal Turkish invasion facilitated by the Trump administration. Thus, we must heed Dr. King’s message to “take the nonviolent movement international” and to planetize it.

The Global Left and its infrastructure remain fragmented and disconnected, except for periodic mass rallies against the most egregious actions of global capitalism and imperial states. But it wasn’t always so. Once, vibrant Internationals were organized to guide and promote a worldwide movement. The influential First International, initially called the International Workingmen’s Association, was formed in 1864, but contention between the anarchist and socialist wings led to its demise in the late 1870s. Its successor, the Second International, had great success, but fractured in the run-up to World War I. The Third International formed after the Russian revolution to unite socialist and communist groups from across Europe and Asia, but later, under Stalin, became corrupted into the highly centralized Comintern. [9]

Both the successes and the failures of these internationals offer vital lessons: a powerful worldwide movement could be premised on both a global political organization with a union UGET and the many young supporters of the Front Populaire call for planning and a strong welfare state. Around the world, women have come together around a more inclusive, transformative vision of feminism, which some call “feminism for the 99%.” [10] The “left nationalism” of Scotland, Northern Ireland, and the Kurds is also part of the new Global Left and could help constitute a global movement against capitalism, militarism, and oligarchic states. strategy for change and the strength of plural and diverse movements that call the status quo into question. To move forward, we need to look back at the old Internationals and, at the same time, not give up on the World Social Forum. The crises and injustices of our times call for both a coordinated “united front” and a loosely aligned “popular front.”

Some say the language of the past—socialism, communism, planning—is outmoded and unlikely to resonate. And yet, many young people embrace the term socialism; in the US, they rallied around Bernie Sanders’s call for “democratic socialism,” and in the UK, they coalesced around the Labour Party’s left-wing faction, Momentum, and its leader, Jeremy Corbyn. In Tunisia, where young people are losing hope in capitalist democracy because of high unemployment and other economic difficulties, the left-wing student

The world’s injustices as well as new possibilities for alliance have inspired calls for coordinated forms of organizing. The deceased Egyptian Marxist economist Samir Amin, for instance, called for a Fifth International. [11] But to balance the complementary needs of global coordination and plural autonomy, as Moghaman two internationals may be needed, one that remains horizontally based—the movement of movements—and the other vertically organized, drawing inspiration and lessons from the old Internationals.

What might this mean in practical, strategic terms? To start, we should revitalize the World Social Forum. [12] It encompasses diverse grievances, identities, and interests; it remains the site for dialogic discussion and the cultivation of solidarity across movements; and it has resisted the authoritarian impulses and practices of capital and the state. It can remain an open space for dialogue among place-based and identity-expressive movements. Building up the Global Left and helping advance a Great Transition, however, requires a global political organization to do the necessary cross-movement “translation” work and deliver a plan for structural change at national, regional, and global levels. Accomplishing this will be an arduous task, but we can’t afford to wait.

Whether it is called the Fifth International, the United Front, the Progressive International, or the World Party, such an organization would be vertically organized, along the lines of the earlier Internationals but with the involvement of anti-imperialist feminist groups such as Code Pink, the Women’s International League for Peace and Freedom, Marche Mondiale des Femmes, and the new Feminist Foreign Policy Project. This planetized formation would encompass progressive parties, anti-neoliberal unions, and anti-war movements across the globe. It would practice democratic decision-making and offer a clear vision and mission of an alternative system of production, social reproduction, trade, and international relations. It would revive the 2011 Arab Spring call, “The people want the fall of the regime,” and create a powerful message demanding a re-enactment of what occurred in 1989/1990, but in reverse: “The people want the fall of the ruling capitalist elites.”

Such a plan calls for a renewed emphasis on the working class, expansively defined and represented. Unions could organize the unorganized, carry out the necessary political education work among their members, and create broad coalitions with progressive political parties and unions across borders. [13] It is worth noting that unions of teachers and nurses have been taking to the streets and making demands in Morocco, Iran, Iraq, Tunisia, Chile, and France, as well as in the US. Such parallel developments are ripe for cross-fertilization and coordination.

We should take the best from the past—planning, coordinating, internationalism, and action—and move forward with a common agenda for systemic transformation. To move forward with an International, veterans of past, more centralized movements and organizations might take the lead in organizing an initial meeting, to convene in a country that has felt the devastating effects of neoliberalism, such as Argentina or Greece. Another venue could be Tunisia—now the only genuinely democratic country in the Middle East/North Africa region. Our movements need to coalesce to make the present moment of populism and hegemonic decline an advantageous one for a Great Transition—this time toward a global socialist-feminist democracy built through the synergy of a new International and a revitalized WSF.

[1] Martin Luther King, Jr., The Trumpet of Conscience (New York: Harper and Rowe, 1968), 34.

[2] See the GTI forum on the World Social Forum: https://greattransition.org/gti-forum/farewell-to-the-wsf . See also Donatella della Porta, ed., The Global Justice Movement: Cross-National and Transnational Perspectives (Boulder, CO: Paradigm Publishers, 2007); Jackie Smith, Marina Karides, et al., The World Social Forums and the Challenge of Global Democracy (Boulder, CO: Paradigm, 2008); Valentine M. Moghadam, Globalization and Social Movements: Islamism, Feminism, and the Global Justice Movement, 2nd ed. (Lanham, MD: Rowman & Littlefield, 2013).

[3] Giovanni Arrighi and Beverly Silver, Chaos and Governance in the Modern World-System (Minneapolis: University of Minnesota Press, 1999).

[4] Christopher Chase-Dunn and Sandor Nagy, “Global Social Movements and World Revolutions in the 21st Century,” in The Palgrave Handbook of Social Movements, Revolutions, and Social Transformation, ed. Berch Berberoglu (London: Palgrave Macmillan, 2019): 427–446; Beverly Silver, Forces of Labor: Workers’ Movements and Globalization since 1870 (New York: Cambridge University Press, 2003).

[5] Christopher Chase-Dunn, Richard Niemeyer, Preeta Saxena, Matheu Kaneshiro, James Love, and Amanda Spears, “The New Global Left: Movements and Regimes,” IROWS Working Paper 50 (2009), University of California–Riverside, Institute for Research on World-Systems, https://irows.ucr.edu/papers/irows50/irows50.htm .

[6] Valentine M. Moghadam, “The Movements of Movements: A Critical Review Essay,” Socialism and Democracy 33, no. 1 (2019): 19–27, https://doi.org/10.1080/08854300.2019.1653730 .

[7] Marxist theorist Goran Therborn has written despairingly of labor’s prospects: “Class in the 21st Century,” New Left Review 78 (2012): 5–29. For an alternative view, see Victor Wallis, Red-Green Revolution: The Politics and Technology of Ecosocialism (Toronto: Political Animal Press, 2018), esp. ch. 8: “Intersectionality’s Binding Agent: The Political Primacy of Class.”

[8] Daniel Denvir, “A Communist Major in Chile Explains How to Govern Locally from the Left,” interview with mayor Daniel Jadue, Jacobin, April 26, 2019, https://www.jacobinmag.com/2019/04/communist-party-chile-left-governance-recoleta . Thanks to Silvia Dominguez for bringing this to my attention.

[9] Although the Comintern ended in 1943, communist parties remained in close contact until the late 1980s, providing support and solidarity for progressive organizations and movements.

[10] Cinzia Arruzza, Tithi Bhattacharya, and Nancy Fraser, Feminism for the 99%: A Manifesto (New York: Verso, 2019).

[11] Samir Amin, “Toward a Fifth International?,” in The Movements of Movements: Rethinking Our Dance, ed. Jai Sen (New Delhi and Oakland: OpenWord and PM Press), 465–483 (originally written in 2005), and “It is Imperative to Reconstruct the International of Workers and Peoples,” International Development Economic Associates (July 3, 2018), available at www.networkideas.org/featured-articles/2018/07/it-is-imperative-to-reconstruct-the-internationale-of-workers-and-peoples/ .

[12] Valentine M. Moghadam, “Feminism and the Future of Revolution,” Socialism and Democracy 32, no. 1 (Summer 2018): 31–53; and “What is Revolution in the 21st Century? Toward a Socialist-Feminist World Revolution,” Millennium: Journal of International Studies 47 (2019).

[13] Although Ronaldo Munck dismisses both the Internationals of the past and the WSF as relevant models, he does call for a central role for labor and unions, in “Workers of the World Unite (At Last),” Great Transition Initiative (April 2019), https://greattransition.org/publication/workers-of-the-world-unite . See also Stephanie Luce, Labor Movements: Global Perspectives (Cambridge, UK: Polity Press, 2014).

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Monday, March 2, 2020

Dear GTN,

Our March discussion bookends a long GTN series on movement streams that kicked off in November 2017 with a framing discussion on “the problem of action.” That initial discussion was introduced by my How Do We Get There? The Problem of Action , which I encourage you to review along with the rich GTN commentary it generated. Now, we return to the overarching question of how to envision and catalyze a coherent global movement matched to the task of Great Transition.

The title for the March discussion—PLANETIZE THE MOVEMENT!—is from Martin Luther King, who understood the need for systemic solidarity for systemic change. Val Moghadam, a global movement scholar, starts us off with an opening essay (soon to arrive by email as well). Val counsels us to draw lessons and inspiration from left history as we fashion a uniquely twenty-first century strategy, intriguingly calling for “two Internationals.” Her essay sets the structure for our discussion:

The Historical Conjuncture
The character of our fraught globalized moment and the systemic change agents it spawns

A Missing Global Actor
Movement fragmentation, the basis for common cause, and the contours of a unified movement

Catalytic Action Now
Strategies for building a global movement and specific initiatives for getting the show on the road

I look forward to your comments, brief or extended (but less than 1,200 words), through April 1. Then Val will respond, and, as usual, we will assemble a public GTI Forum sampling the internal GTN discussion.

Over to you,
Paul

Richard Falk

I found Val Moghadam’s “Planetize the Movement!” a masterful effort to demonstrate the continued diagnostic and prescriptive relevance of Left traditions of thought and practice in responding to the urgent systemic challenges currently confronting humanity. She also offers perceptive comments on the emergence of distinct social movements seeking a better future in distinct spheres of activity, citing especially ecologically oriented activism, feminism in various forms, progressive anti-globalization initiatives, and forms of radical opposition to income and wealth inequalities. Without minimizing obstacles and adverse trends, Moghadam usefully anchors her hopes for the future on two central propositions: first, in her words, “the moment is ripe for an alternative;” and second, planetizing the movement depends on a political economy critique of neoliberal globalization coupled with the advocacy of a new progressive vision that draws heavily on socialist and communist experience and thought of the twentieth century.

I find this a stimulating overall point of departure, and accept the relevance of her innovative formulation of “two internationals,” a horizontal network of progressive social activist initiatives, which I have characterized as “globalization-from-below,” and a vertical mechanism that builds on the experience of the four internationals periodically established over the past 150 years, as well as acknowledging Samir Amin’s proposal of a Fifth International to allow leftist influence to resume its vital presence in the aftermath of the Cold War. [1] While Moghadam is sensitive to the argument that reviving Marxist and neo-Marxist interpretations of her call to action has been widely criticized as passé, she remains confident of its catalytic relevance to the present historical conjuncture, citing the responsiveness of American youth to the overtly socialist message of Bernie Sanders. I am not sure about this: while fully agreeing that a movement for the planet must relate centrally to political economy, I am more skeptical about supposing that we can achieve the understanding we now need from the old left class and labor-oriented revolutionary rhetoric and worldviews. For one thing, the digital networking that underpins globalization and creates new potentialities, dangers, and risks is not easily accommodated, and however hard one tries, the realities of a post-industrial labor market are increasingly as deeply threatened by automation and artificial intelligence as by exploitative elites. This suggests to me a qualitative change that requires a new vocabulary to describe the plight of many individuals, being threatened not only on the level of material livelihood, but also by dehumanization in relation to a meaningful life experience.

Moreover, I am not convinced that the mainstream left traditions are very mobilizing with respect to planetizing ambitions regarding the unprecedented bio-ecological-species challenge. This challenge exposes a missing dimension in most versions of leftist thinking that is as vital as the reintegration of political economy preoccupations into progressive thought and action. It is worth noticing in this regard that it is the admonishing voice of Greta Thunberg indicting the established order for its failure to do what is needed to address climate change before it is too late that has had the most pronounced impact on public consciousness in this century. Her declaration of an ecological emergency that dooms the future unless drastic action is taken, including of course against the excesses of capitalism, is oriented far more toward an Enlightenment insistence on heeding the scientific consensus than on rekindling class warfare. Her essential plea is to be guided by facts and evidence, and not by narcissistic material interests of the beneficiaries of the established order.

Because of its focus on class conflict and economistic commentary, I believe that most left thinking fails to attribute enough responsibility for the evils of our world to “modernity” in addition to damage wrought by capitalism, or for that matter socialism. It is due to the modernity paradigm that we have long enthroned ideas of national sovereignty, tribal nationalism, and state-centric world order, which fosters militarism, imperial geopolitics, and prolonged civil strife. The modernity mindset is more responsible for these features of world order than even the rapacious private sector fondness for bloated military budgets, arms trade, and arms races. In the West, particularly, it is from the individualist ideologies of modernity that we derive this confusion of endowing economic growth and technological innovation with limitless horizons of progress and the bestowal of high degrees of personal contentment, while almost forgetting the lost achievements of premodernity with respect to collective identities and cohesive community. It is notable that even the canonical formulation of human decency in the Universal Declaration of Human Rights (1950) was expressed as rights of the individual, and complementary obligations of responsibility were ignored altogether. Political economy is crucial, yet also insufficient unless coupled with comprehensive ethical and cultural reframing of the societal norms associated with the modernity paradigm. For instance, the acceptance of limits, so crucial to constituting a balanced habitat connecting human activities with their natural surroundings, is as absent from traditional left thinking as it is from mainstream secularism and modernist rationalism.

Finally, I have some thoughts about Moghadam’s proposed two internationals. While directly responsive to the central theme of planetizing the movement, such a framing seems to neglect the importance of the global normative order, particularly international law and the United Nations, as a primary element of a world transformed in accordance with a progressive worldview. Given global-scale challenges, the need for humane structures of global governance is obvious, which implies regulatory and coordinating mechanisms based on a logic of equality rather than as at present, reflecting the geopolitical realities of inequality. The UN and international law currently exhibit the deficiencies of the established system of world order, especially double standards, victor’s justice, and geopolitical governance. Only the five winners in World War II (75 years ago) have impunity when it comes to upholding international law and respecting the UN Charter, only the losers or weak states are held accountable for adhering to international criminal law, and only the leading political actors retain discretion to engage in coercive diplomacy by way of threat, sanctions, and intervention, which, if countered at all, depends on war endangering countervailing geopolitical encounters. To place these remarks in the setting of Moghadam’s approach, I would insist that there is a need either for a broadened conceptualization of her “second international” or the addition of a “third international” assigned the mission of establishing a more democratized and autonomous United Nations and an international legal order based on the fundamental principle of treating equals equally, whether the unit of concern is a state, a group, or an individual. Such a transformative emphasis on the normative order of regulation, rules, and institutions serving human and global interests as transcending the claims of national interests seems to me to be an integral part of a progressive planetary movement.

[1] Richard Falk, Predatory Globalization: A Critique, Cambridge, UK, 1999.

Tags: Great Transition Network, GTN, Martin Luther King, movement politics, Planetize the Movement, World Social Forum. world capitalism

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Categories Great Transition Network (GTN), planetary movement, Progressive politics

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

16 May

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

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

Annexation Foreplay

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

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

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

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

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

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

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

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

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

Israelis Insist Annexation is About ‘Security’

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

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

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

The Macabre Dance

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

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

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

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

Gangster Geopoliticss

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

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

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

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

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

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

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

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

This leaves unattended the awkward gap between the

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

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

Tags: annexation, Area C, international law, Israeli/Zionist Debate, Liberal Zionism, Pompeo, UN Responsibility, West Bank

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Categories annexation, Commentary, Crimes of State, International & Global Law, Israel/Palestine, Pompeo, Reflections, UN Responsibility

The Coronavirus Pandemic, Sanctions on Iran, and the Maladies of World Order

12 May

The Coronavirus Pandemic, Sanctions on Iran, and the Maladies of World Order

[Prefatory Note: This post consists of my responses to three recent interviews with the Iranian journalist, Javad Herian-Nia, and published previously in Iran over the course of the last month. The text of my responses has been modified by subsequent developments and further reflections on my part.]

1-What will be effects of coronavirus on the current world order?

At this point, in the middle of the pandemic, any response is highly speculative. When speculating it seems helpful to distinguish between what we regard as probable outcomes as distinct from what would be desirable effects beneficial for humanity and sensitive to ecological concerns.

With respect to probable effects, I am aware of two broad sets of influential perspectives emerging, which admittedly somewhat confuse what is likely to happen with what we wish would happen. As near as I can tell from listening to preliminary American post-pandemic conjectures, private and public sector leaders are preoccupied with taking steps to restore the pre-pandemic dynamics, especially with regard to the economy, without substantial modifications beyond the recognition that governments should invest more resources in preparing national health systems for the lingering persistence and possible recurrence of the COVID-19 outbreak, as well as other outbreaks of contagious disease.

It is important to appreciate that previously in this century there were several lethal epidemics (SARS, Ebola, avian flu), although this COVID-19 experience has a far greater human and societal impact for two main reasons: first, the WHO officially declared COVID-19 to be a ‘pandemic,’ which automatically focuses attention on the severity of the challenge; and secondly, the crisis has seriously afflicted countries in the West, which heightens world media and public attention, and ensures more effort to assess the experience from a world order perspective. This latter observation is particularly true for the United States, and possibly China, as both have become ‘global states,’ that is, States with an array of major political, economic, and social engagements that creates ‘presences’ far beyond national boundaries. The reality of ‘global states’ in the post-colonial era has not yet attracted the notice it deserves as altering the structure of state-centric world order.

What restoring pre-pandemic world order will mean is not entirely clear, and is somewhat contested, as to what were its essential features prior to this deeply dislocating experience. Most obviously, restoration would mean facilitating the rapid revival of transnational trade and capital flows, a renewed effort to reduce economic tensions that were rising to the level of ‘trade wars’ before the onset of the pandemic. Such a preferred model of a restored world overlooks the likely resistance of ultra-nationalist and protectionist trends in major States that include a deliberate retreat from neoliberal globalization. Such nationalistic repositioning was reinforced by negative reactions in many Western countries to the influx of refugees from combat zones and migrants seeking to raise their living standards above subsistence levels. The lockdowns during the health crisis also provided pretexts for relying on surveillance technologies, and generally led to greater social tolerance for authoritarian policies and practices, governance habits quite likely to persist after the pandemic phase of the disease has subsided, which has been the historical pattern of past pandemics so well depicted in Frank M. Snowden’s Epidemics and Society: From the Black Death to the Present (2019).

These obstacles to reviving the ‘old normal’ will also be challenged by the widespread belief that many of the jobs lost during the pandemic will not become available to workers in a post-pandemic atmosphere as economies will take advantage of automation due to developments in Artificial Intelligence (AI) and robotics. Particularly in capitalist countries, past economic crises have been occasions for a streamlining of the labor force on the basis of more rigorous standards of worker efficiency. In so doing, profits margins are regained, even increased, while jobs are lost and high unemployment, especially at middle income levels, haunts the recovery process. There is little reason to doubt that this pattern will be repeated in the present circumstances, which included such drastic socio-economic dislocations, and more likely with take on more extreme characteristics.

A more prescriptive effort to restore the old world order based on stability and economic growth places emphasis on recreating the conditions that produced what is again embraced as past success worth reviving. Henry Kissinger, writing in the conservative Wall Street Journal, recommended an imitation of the strategies relied upon by the U.S. Government after the end of World War II, especially assertive American global leadership, a mobilization of resources to restore market vitality in the countries of the West. Such an approach would involve a new Atlanticism for countries in Europe most adversely affected by the pandemic, and a strengthened health system as integral to future national, global, and regional security. This kind of assessment blends the probable with the desirable, but it also swims against the pre-pandemic tide of ultra-nationalism that placed stress on transactional bargains rather than inter-governmental cooperative problem-solving, which acknowledges global interests as a main component of national interests, given the realities of digital globalization, or the complexities of interconnectedness. Insofar as directed at Washington, any serious prospect of strong American global leadership along Kissingerian lines depends on replacing Trump with someone more responsive to the global scale challenges facing humanity and more capable in managing the public relations global diplomacy.

From my perspective, a desirable post-pandemic approach would definitely seek ‘a new normal’ that modify world order as we knew it. Primary attention would be given to meeting the pre-pandemic challenges of global inequality, climate change, extreme poverty, migration and asylum, and the myriad other policy concerns that were not being adequately addressed by the procedures of state-centric world order. The various failures of global leadership by the United States and the predatory excesses of post-Cold War capitalism make adjustments in light of eco-stability, human rights, and economic and social justice vital. Such a reorientation of international political behavior would also require the repudiation of militarist geopolitics and the abandonment of coercive diplomacy (including punitive sanctions), and their replacement by behavior exhibiting respect for international law and the authority of the United Nations, and greater reliance on procedures for peaceful conflict resolution. Such a reorientation would achieve a better balance in foreign policy between the sovereign rights of States and the global responsibility of the UN System to secure compliance with individual and collective rights, as well as encouraging ecological stewardship and climate justice. Such a visionary approach will strike many observers as utopian, but from another perspective such advocacy can be regarded as embodying a necessary ethical, security, and ecological response framework to the realities and threats, and opportunities, of the contemporary world, which if not addressed in a timely and equitable fashion will result in a tragic destiny for future generations.

2-Current world order is mostly based on neoliberalism and to some extent on political realist policymaking. What are the deficiencies of these approaches as revealed by coronavirus?

I would add a structural element to your way of summarizing current world order. It is the statist character of world order that has evolved over time from the 1648 Peace of Westphalia that ended the Religious Wars in Europe, and gave rise to the primacy of the territorial sovereign state as the main building block of world order. This state-centric system of world order, originally a European regional arrangement, became gradually universalized as the dialectic between colonialism and anti-colonialism in the non-Western world unfolded in the twentieth century. This process established a strong consensus among governments that only States were eligible to become fully accredited participants in formal international politics. This criterion regulating status and participation in international political life also explains limiting membership in the United Nations to entities that qualify as States under international law, although there has been advocates of more inclusive participation, which would include regional actors and representative civil society actors. Colonialism imposed statist networks in the Middle East and sub-Saharan Africa with little attention to the antecedent experience of empire and colonial rule, thereby overlooking the reality of ethnic and traditional contours of natural political communities for the affected peoples. This has led these regions to endure continuous strife in the post-colonial world that has so far only been overcome by imposing authoritarian rule that achieves order by repressing resisting elements in the society, often supplemented by gross corruption at the apex of the governance pyramid.

A further aspect of this kind of Westphalian world order is the role of geopolitics, which here refers to the discretionary behavior of leading States that refuse to accept restraints on their freedom of maneuver externally, and reject any kind of accountability with regard to abuses occurring within their own country, thereby absolutizing territorial sovereignty. The global legalization of such rogue behavior is embedded in the UN Charter, most openly expressed by vesting a right of veto in the five permanent members of the Security Council, the only organ within the UN System with the authority to reach binding decisions. In effect, the UN Charter rather shockingly acknowledges the uncontrollability of the five political actors, although these are the states that most endanger international peace and security. Turkey has for a decade been challenging this kind of hegemonic arrangement by calling for global reform along constitutional lines, adopting the slogan ‘the world is greater than five’ to highlight its campaign to diminish the influence of geopolitics within the workings of the UN System.

As your question suggests, neoliberalism and political realism have played influential roles in giving shape to international life, but in both cases, at considerable cost from the perspective of human wellbeing, justice, and ecological stability. As earlier indicated, neoliberalism privileges the efficiency of capital over the wellbeing of people, accentuating ecological harm on one side, and inducing extremes of inequality on the other side (26 individuals control more than half of the world’s wealth). The effect of this ideological shaping of behavior is to accentuate poverty, alienation, class conflict, while inclining governance at the level of the State toward autocratic, and often corrupt, leadership. Political realism, although coming in many forms, is imbued with the essential idea of promoting national interests, narrowly and selfishly conceived as excluding both global concerns and values related to peace and justice, as well as deference to international ethical and legal norms. Realists are in agreement that such a calculation of national interests in only reliable basis for the formation of foreign policy, reflecting an understanding that history is made by wars, giving pride of place to military capabilities. In this sense, prevailing forms of realism have become unrealistic to varying degrees spanning the political spectrum from the hard right to the internationalist liberal center. In our times we need to develop strong mechanisms of global problem-solving and robust methods of conflict resolution to meet such challenges as global warming, migration pressures, declining biodiversity, ecocide, and genocide. Political realism as diversely practiced remains anchored in seventeenth century conditions where autonomous territorial communities didn’t require or acknowledge any framework of restraint external to their realm of territorial authority, and changes did result mainly from militarism. Under twenty-first century conditions such realism has become dangerously out of touch with the severe and accumulating existential threats of the twenty-first century, as well as the mixed record of militarily driven foreign policies of geopolitical actors. The United States despite having the greatest war machine of all history has endured a disappointing record of political defeat in armed conflict since 1945. The European colonial powers and the Soviet Union did not fare any better when relying on military superiority. China after some border confrontations with neighboring countries, has pioneered new modes of imperial expansion not dependent on projecting military power overseas, except to some extent in island controversies in South Asian waters.

3- Although Corona has drawn the attention of countries to the realist approach and the principle of “self-help”, on the other hand, it has led to the inefficiency of the realist approach to security, which is based on “state security” and prioritizes It defines “the security of the ruling elite” and sees the issue of security as purely military. On the other hand, the outbreak of the virus has shown that militaristic economies do not provide public security(human security), and that governments should pay more attention to “human security” in the post-Coronavirus world, which confirms that the overlapping of “state security” and “human security” is greater than ever. What do you think about this?

I would again call attention to my distinction between probable and desirable outcomes once the crisis atmosphere subsides. There is no doubt in my mind that a human security approach to ‘security’ would be a desirable way to incorporate the lessons of the COVID-19 ordeal. Yet I believe this to be a highly improbable outcome other than some strengthening of national preparedness for facing future epidemiological challenges, and possibly endowing the WHO with an early warning responsibility and additional capabilities. Even this focus is less a matter of upholding human security than it is a realization that governmental legitimacy depends on keeping the economy functioning to the extent possible when struck by epidemics. Efforts to minimize the impacts of disabling health challenges, which unlike climate change have an immediate concrete life-threatening and economic dislocating potential impact on every person on the planet, make the case for effective warning and mitigating capabilities irrefutable. Health disasters of the COVID-19 scale are current, and cannot be long evaded by politicians, at least after the bodies begin to pile up. Although the complacency of some governments in the West with regard to ignoring warnings and waiting too long to impose societal constraints suggests that many politicians seek to defer rational responses as much as possible.

Nevertheless, it is more important than ever for public intellectuals to insist upon a human security framework both to challenge the war system, including its enormous unproductive diversion of energies and resources, and to endow a human rights culture with political potency so as to ensure that state/society relations develop ethical standards implemented by the rule of law.

We live at a time when what seems necessary seems politically out of reach, which suggests that we should reach further, and admit that struggle for a better future is worthwhile because good surprises, as well as bad ones (for instance, the pandemic) can happen. In a sense, to meet the threats confronting the world we need to realize that our basic condition is radical uncertainty about what the future will bring. A fatalistic passivity that waits for the apocalypse to end it all is no more reasonable than is irresponsible reassurances that there is nothing to worry about because on the average people are living longer and better.

An important reflection on the reaction to the pandemic was the willingness of political elites of major countries to abandon austerity economics and free trillions to ensure the recovery of major private sector business operations like airlines and fossil fuel companies. In other words, complaints recently directed at progressive agendas, such as were advanced by Bernie Sanders and Elizabeth Warren that had been greeted derisively with the dismissive ‘how will you pay for this (universal health care, eliminating student debt)?’ would be less easy to reject by appeals to fiscal discipline. This could make a big difference in future political campaigns if such a lesson of the pandemic is learned and vigorously invoked by progressive movements for change. There is as little reason to follow the guidance of Wall Street billionaires and hedge fund stewards of capital as there is to heed the belligerent guidance of Beltway thinktank gurus or Pentagon pleas for yet more funding.

4-If we accept that the post-Corona world order will be different from the existing one, will the changes be structural and fundamental ones? Which new meanings will be experienced as fundamental changes?

I think it is impossible to identify at this point what will be the post-Corona effects on global structures and the fundamental characteristics of world order. I believe that there is unlikely to be any significant effects on world order without prior seismic-scale challenges to the established order coming from political movements in major countries of the world. Neither the U.S. nor China, the former asserting itself via an outmoded reliance on military capabilities and the forcible penetration of foreign political spaces and the latter expanding its influence mainly by way of positive economic inducements, seem inclined to alter world order in ways that are structural and fundamental, but this perception might be mistaken. The U.S. seems somewhat open to a movement from below for drastic change aspiring for power, and shifting the policy focus of government closer to a human security agenda. The Sanders campaign for the Democratic Party presidential nomination arguably came close to gaining enough influence to mount such an effort, and it has pledged to continue pursing these goals by further augmenting its influence as a social and political movement. China has become a formidable global state by relying on ‘soft power,’ expansion of trade, economic growth, foreign economic assistance, and non-coercive diplomatic activism at the UN and elsewhere, although its success is starting to encounter a variety of pushbacks. Hard power geopolitics heavily depends on military capabilities for leverage and as a policy instrument, while soft power avoids political violence to the extent possible, without rejecting it on principle, conserving its resources for more productive applications, including global cooperation and human security. At the same time, with respect to internal politics, the U.S. ‘soft’ authoritarianism is more amenable to reformist changes and more adaptable to certain aspects of human security than is China ‘hard‘ variant of authoritarianism. From this perspective, the main energy for human security in the West is likely to come, if at all, from movements of people whereas in China and other deeply rooted authoritarian systems such energy for change would almost certainly have to start with some fracturing within governing elites.

Interview Questions from Javad Heiran-Nia (April 26, 2020) on

Humanitarian Aspects of Sanctions as Applied to Iran

US officials have always stated that Iran’s humanitarian goods are exempted from sanctions. However, due to the sanctions and the change in the label of some of Iran’s sanctions on the nuclear issue and the placement of terrorism or weapons of mass destruction by the United States, their trade has been disrupted and foreign parties are reluctant to export humanitarian goods to Iran. How effective do you think changing the label of sanctions has been?

I believe it is hard to assess the connections between the relabeling of humanitarian supplies (food, medicine, medical equipment) in ways that lead them to be treated as encompassed by ‘sanctions’ that are being maintained despite pressures on state and society resulting from emergency challenges in Iran arising from the high level of cases (more than 80,000) and deaths (over 5,000) resulting from the Coronavirus Pandemic. In effect, this relabeling or reclassification is a means to deny humanitarian relief to Iran at a time that finds the national health system on the verge of being overwhelmed. It is a cruel practice that should be abandoned.

In an recent interview with the Los Angeles Times, Iranian sanctions planner “Richard Nephew” said complex rules were in place and that companies violating sanctions would face serious penalties. However, are companies interested in humanitarian trade with Iran?

The reality is that banks and many corporations are reluctant to engage in trade involving humanitarian exceptions to the sanctions regime because the commercial

gains of doing are relatively minor. Incentives to do so are generally far outweighed by a fear that the U.S. Government might respond in ways that could be costly to the wide spectrum of more profitable operations of an international company. The official tone of Treasury Department regulatory oversight seems deliberately intended to discourage humanitarian economic activities despite its mixed message of claiming that humanitarian goods sent to Iran are not subject to sanctions and suppliers will not be penalized: “Compliance with all of the conditions of a general license is required to qualify for the authorization. Without perfect compliance, a U.S. person would be conducting a prohibited transaction. Even an innocent or accidental transgression may subject a U.S. person to civil penalties such as fines.”

Medical equipment companies find easier ways to make a profit, especially when the world is facing a pervasive disease. On the other hand, the transfer of humanitarian aid does not bring much benefit to most international banks, shipping companies and insurance companies, which they want to ignore the risk of sanctions. What is your opinion on this and how effective do you think sanctions are in disrupting the treatment of coronavirus in Iran?

It is difficult for an outsider to evaluate the effect of imposing bureaucratic burdens and potential penalties on doing business with Iran that consists of the sale of medical equipment.

I cannot say whether the shortages of ventilators and other equipment in Iraanian hospitals can be attributed to the indirect impact of sanctions, but it seems to follow from the ‘maximum pressure’ approach that Pompeo and Trump have reaffirmed in the midst of the pandemic, receiving criticism from more liberal media outlets, human rights organizations, and several of the more progressive members of Congress. In sum, Pompeo/Trump seek to condition sanctions relief on Iran’s willingness to surrender its political goals by altering its foreign policy in the Middle East, which is a clear interference with the sovereignty of Iran. In the background, it should be appreciated that sanctions even absent the pandemic are a form of economic warfare inconsistent with the spirit and substance of contemporary international law that outlaws aggression in all its forms. If world order was more shaped by law, and less by geopolitics, sanctions would be imposed on the U.S., and humanitarian relief would be sought by Washington to cope with the demands of the pandemic.

Interview Qs from Javad Nia-Herian (March 15, 2020)

What are the most important reasons for the rise of right-wing politics and extreme nationalists in Europe and America?

Many speculations exist as to why these unexpected developments have occurred over the course of recent years. There is no doubt that a core explanation is the widespread alienation arising from the effects of neoliberal globalization, which has distributed the benefits of economic activity and technological innovation unfairly, making the very rich even richer while leaving the great majority of people in society worse off. Such a pattern seems systemic as it happening in so many countries, although the mix of reasons vary depending on national circumstances. A second set of explanations arises from the refugee and migrant flows that have arisen in the course of the long civil strife in Syria, Yemen, and Iraq, which are perceived to challenge the social and ethnic cohesion of many European societies. Closely related to ‘conflict migrants’ are ‘climate refugees’ who seek to achieve a tolerable life by moving to more affluent countries, which reinforce resistance in these countries based on labor pressures to retain jobs and keep wages at higher levels, as well as concerns about breaching civilizational identity. Against this background, an increasing segment of the public in Europe and North America is ready to support leaders that promise to protect the interests of the territorial citizenry and blame economic globalization for lost jobs and income inequalities due to its policies of privileging the flow and efficiency of capital over protecting the wellbeing of people. In this sense, large portions of the public in these societies seem responsive to explanations of their distress by leaders with highly nationalistic viewpoints, and seem ready to give up democratic values by supporting autocratic and chauvinistic leaders that violate human rights. This pattern is not only visible in the West, but also in other parts of the world, including India, Brazil, Philippines.

One of the most important issues related to the developments in the Middle East was the announcement of the US withdrawal from the region. But in practice this has not happened. Do you think the US really intends to pull its troops out of the region? And if so, why?

It does seem that military disengagement from the region was a genuine policy objective of Trump at the beginning of his presidency and a main campaign promise in 2016, but there is friction coming from the main forces that have controlled American foreign policy ever since 1945, what I call ‘the three pillars’: Wall St., Pentagon, and a bit later, Israel, more or less in this order. How this friction will affect the timing and rate of withdrawal probably depends on many factors, including the further unfolding of the current overarching health crisis, and whether signals of confrontation or accommodation come from Iran. Israel’s opposition to American military disengagement in the region is also influential. It is difficult to predict at this point, but unless there are unexpected regional flareups military disengagement should proceed if Trump remains president, and the upcoming U.S. presidential elections may hasten the process. The redeployment of American troops from three bases in Iraq after recent rocket attacks, while not an instance of withdrawal, did seem to move in the direction of disengagement. Ironically, Biden’s election as president is likely to produce a revival of ‘liberal internationalism’ as the marker of U.S. global leadership, and could be accompanied by an increased military engagement in the Middle East/

One of the major problems facing the US now and in the future is China. Various Western security documents, including a statement from the Munich Security Conference with China, have been cited as a threat. How will America be able to contain China? Will the containment policy work?

The future of U.S./China relations is the most challenging geopolitical issue of our time. It matches two global states from distinct civilizational outlooks. The U.S. and China are both what I call ‘global states,’ whose contours and even presence, cannot be assessed by territorial borders. Both have a global non-territorial reach that no other political actor possesses, but there the similarity ends. The U.S. depends primarily on its military capabilities to punish and coerce those states that it regards as hostile to its global ambitions. Iran (and Venezuela) is the current leading example, as victimized by ‘the maximum pressure’ approach based on threats and punitive sanctions. In contrast, China has brilliantly extended its influence and increased its prosperity by reliance mainly on non-military instruments of expansion, including trade, investment, and foreign assistance. The two global states exemplify an encounter between hard and soft power foreign policies, giving rise to a unique rivalry in the history of international relations.

This rivalry does pose risks of a new cold war or even war in the sense of armed combat, especially in relation to the disputed sovereignty of South Asian seas. When an ascending power threatens the previously dominant political actor, as China is now threatening to overtake the U.S., there are many instances in history, where war has resulted, most frequently by the leading state seeking to defeat the challenger while it still seems to have the upper hand. Of course, the prospect of a war fought with nuclear weapons leads to greater caution on the part of leaders than in the past, but it does not give us confidence that current leaders will act prudently and rationally under pressure in a crisis, or if perceiving a threat. The risks of stumbling into war by miscalculation are considerable, given how unwanted wars started in the past.

I am not sure whether ‘containment’ is relevant to fashioning a Western response to the Chinese challenge. Containment was a doctrine developed to deter military expansion, initially of the Soviet Union. It was in a geopolitical context in which two hard power leading states were in competition, economically and ideologically throughout the world. Containing a soft power global state such as China is already taking the form of trade wars and efforts to curtail Chinese penetration of foreign markets. To an alarming extent, this kind of confrontation has accelerated during the Trump presidency, fueled by the adoption of a nationalistic and transactional policy agenda, blame game tactics in the midst of the pandemic that display a willingness by Trump to raise international risks of conflict for the sake of avoiding responsibility for not handling the COVID-19 experience in a responsible manner.

The outbreak of the Coronavirus points out that there are threats that are more easily resolved through cooperation among countries. Will the international community learn from the damage caused by the spread of the virus, and will we see increased international cooperation to address global threats?

The incentivizing of global cooperation may become the silver lining of the COVID-19 challenge. It has become obvious to even the most nationalist viewpoints that we help ourselves by helping others, and hurt ourselves by hurting others. Only by cooperating in good faith can constructive responses to the spread of this virus be achieved. What is true in relation to the Coronavirus Pandemic is also true for other issues of global scope: extreme poverty, climate change, global migration, biodiversity, militarism and nuclear weaponry. In these latter instances, the benefits of cooperation are less obvious, especially for the rich and powerful.

For thiss reason, extending the experience in relation to health policy to other policy domains may not be so easy. The transfer to these other areas is rendered difficult, or impossible, if the benefits of cooperation are uneven, less immediate, and more abstract. Also, governmental resistance is likely to occur whenever there are special interests embedded in bureaucratic structures and the private sector. This resistance arises, in part, from continuing to regard international relations as a zero-sum, win/lose contest rather than an arena in which seeking win/win outcomes bring the more enduring gains for all.

What will be the economic impacts of the Coronavirus on the world economy? How will this affect the upcoming US presidential election?

It is too soon to tell what the economic impacts will be, but it seems as if these impacts will be severe and long lasting, both for the world economy and all national economies, especially hitting hard the economically most vulnerable parts of the population, which usually include the disfavored minorities. There will be variations from state to state depending on their resources, the discipline of different societies, and the skill of government officials. It appears at present as though the world economy will experience a collapse comparable to the situation that produced the Great Depression of the 1930s, and contributed to the rise of Fascism and the onset of World War II. This current Coronavirus challenge is unfolding in unprecedented ways, and our assessments must be tentative and frequently updated as it proceeds on uncharted territory.

The same cautionary attitude shapes my response to the effects on the November elections in the United States. As of now, the pandemic would seem to hurt Trump’s chances of reelection because the leader at the time of downturn is held responsible by many voters for results. If the economy is doing well, the incumbent president reaps the benefits, whether deservedly on not, while if it is doing badly, existing leaders are held responsible whether or not at fault. In addition, this interpretation is reinforced by the fact that many Americans, including some Republicans, felt that Trump handled the challenge badly, especially at its crucial early stages, belittling the seriousness of the spread of such a lethal disease, and thereby postponing self-isolating steps to slow the spread of the disease. This negligent slowness of response increased the number of cases and fatalities. But there are many unknowns between now and the elections. If the situation does not improve, or worsens, it is easy to imagine a situation where the elections are postponed in accord with the state of emergency, while if the situation unexpectedly improves, Trump might easily win reelection, especially if opposed by such a weak candidate as Joe Biden.

What do you know about the most important international developments in Europe, America, Asia and the Middle East over the past year?

Such a question is so broad that it is difficult to answer briefly, but I will try. Without doubt, as my earlier responses suggest, the Coronavirus Pandemic overshadows all other recent developments both by the magnitude of its health challenges and by the gravity of its non-health impacts. Other international developments of note are the continuing ordeal of vulnerable minorities, including the Rohingya in Myanmar, Kashmiris in India, and the Palestinian people, who additionally are likely to be the least protected against the ravages wrought by the virus. In addition, the struggles in several Middle East countries exhibit continuing chaos, massive displacement, and ongoing violence. Syria, Yemen, and Libya continue to experience chaos and strife without any serious capacity to restore peace and normalcy. As well, in the same Middle East region there has been a second wave of popular challenges to the established order in Lebanon, Iraq, Iran, and Algeria, as well as nearby Sudan that suggest that the conditions that led to the Arab Spring a decade earlier continues to produce social unrest and political protest. A final set of developments can be associated with the disappointing failures to move forward with respect to the threats associated with climate change despite fires of savage intensity in the Amazon rainforest in Brazil and across huge tracts of land in Australia. These threats highlighted the urgency of a cooperative approach to issues of ecological balance, while the behavior of important states seemed to produce a regressive, head-in-the-sand trend toward the embrace of ultra-nationalist foreign policies and transactional geopolitics, thoroughly dysfunctional from a global problem-solving perspective. The relative impotence of the UN, due to the geopolitical impasse between the U.S. and China, aggravated by Trump’s ‘America First’ orientation, missed a rare opportunity to build renewed confidence in the UN as an actor capable to some extent of upholding human interests of the planet as a whole.

Tags: After COVID-19, COVID-19, Economic Depression, geopolitics, global reform, health system, Iran Sanctions, UN, WHO, world order

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Categories 'New' Normal, Commentary, global cooperation, Global Governance, Post-Pandemic World Order, Reflections

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

7 May

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

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

Points of Departure

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

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

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

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

U.S. Retreat and Israel/Palestine

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

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

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

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

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

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

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

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

Risks Associated with Trump’s Version of Retreat from Globalization

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Concluding Comment

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

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

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

References

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tags: After Globalization, Daniel Piper, Netanyahu, Trump/Kushner Plan, Victory Scenario

Comments 2 Comments
Categories Commentary, International & Global Law, Israel/Palestine, Reflections, Retreat from Globalization

Acknowledging Disorientation After COVID-19: Beyond Horizons of Fear and Doubt

3 May

Acknowledging Disorientation After COVID-19: Beyond Horizons of Fear and Doubt

More than earlier crises of my lifetime, including the Great Depression, World War II, 9/11, the COVID-19 pandemic illuminates as never before, how precarious and uncertain is the future wellbeing, and possibly survival, of the human species. The concreteness, immediacy, and haunting uncertainties of the pandemic is quite terrifying on its own, but its heuristic pedagogy seems applicable to a range of potentially catastrophic threats of global scope, most obviously climate change, biodiversity, nuclear weaponry. What we should now be able to realize even while asleep is that when the under-preparedness of governance and political leadership is based on ignoring a scientific consensus is combined with radical uncertainty and myopic nationalism the stage is set for planetary and species disaster, and not only personal grief and national emergency. These signature traits of the 21^st century heighten our fears and feelings of utter helplessness that gives way to a dizzying disorientation of beliefs and expectations, a fertile breeding ground for political extremism, scapegoating, and the darkest flights of fancy.

As much as the horrifying spectacle of hospitals without beds for critically ill patients and too many dead bodies to find room in city morgues or funeral homes is this sense that the lethality of COVID-19 could have been significantly mitigated if political leaders of important countries had heeded two types of advance warnings from reliable sources. There was a foreboding prediction during the past five years by epidemiologists and other health experts that conditions existed around the world that made a viral pandemic a near certainty in coming years. It was just a matter of time. For governments of affluent countries to ignore such warnings from respected experts, and in a few cases even reduce the funding of their national health systems in recent years, as the U.S. and UK are reported to have done, should be regarded as a Crime Against Humanity, malign behavior worse than gross negligence or administrative incompetence.

In addition, there were a series of authoritative disclosures of the actual COVID-19 outbreak weeks before many governments undertook suitable preparations with regard to testing kits, masks, and personal protective equipment (PPE). Instead of rational and prudent preparations, the views of qualified experts either never reached the ears of leaders and their advisors or were thrown by leaders into the nearest waste basket as alarmist rubbish, at best distractions from the only real job of peacetime government—promoting markets and pro-rich growth. Politicians like Trump, Bolsonaro, Modi, Johnson, and others did even worse, actively denying, denigrating, and dismissing concerns until the spread of the disease became undeniable with several national health systems in leading countries reacting in emergency modes on the brink of been overwhelmed. If prudent and rational, this grave peril would never have happened, especially in countries with adequate health infrastructures.

The most elementary lesson from the pandemic so far is that adoption of the Precautionary Principle should become mandatory for organs of government and political officials at every level of social organization from the municipality to the UN, and especially at the level of governments of sovereign states. The wellbeing, security, and defense of national populations is widely assumed to be the prime duty of political leaders in a still state-centric system of world order. Such vigilance by leaders should be treated as more important than living up to the oath of office, and the failure to do so regarded as a flagrant violation of public trust, warranting a punitive removal from office. Basically, the Precautionary Principle decrees that expert warnings about impending public dangers should shape governance policies, even when available evidence does not produce conclusive results as to the extent and imminence of the risk. The precautionary approach insists on paying the costs of anticipatory prudence as over against reliance on reactive crisis management, especially under circumstances that pose substantial risks of severe future harm. The Precautionary Principle, informally long practiced and advocated with respect to health, was first internationally articulated and proposed with respect to expert warning about potentially catastrophic future environmental damage if corrective steps are not taken. The recent focus of precautionary thought and advocacy has been seeking that proper account be taken of the dire warnings derived from global warning projections. An influential formulation of the Precautionary Principle is set forth in Principle 15 of the Final Declaration of the Rio Earth Summit of 1992: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

The concreteness of COVID-19 disease, as immediate, life-threatening, personal, planetary, and undeniable contrasts with other threats that are presently less visible, often more distant, and not as vividly or convincingly intruding on the security of everyday life. Yet the pattern is the same: prudent anticipation is cheaper, safer, more effective, and humane than are reactive measures, especially in view of the disproportionate vulnerability of marginalized ethnic minorities, prisons and retirement homes, and impoverished communities and crowded urban settings. In this sense, a difficult part of the post-pandemic challenge is not only to renovate the health system so as to be adequately prepared, but to transfer this elementary knowledge about dealing with global health threats to other policy domains while acknowledging the diversity of risks and distinctive types of likely harm. An existing scientific consensus projects with reasonable assurance the high probability of increasingly more dangerous levels of future global warming and of diminishing biodiversity if the dissemination of greenhouse gasses is not drastically reduced. Society lacks comparable capabilities to make such high confidence predictions with respect to the advent of nuclear war or the danger of a large meteor striking the earth. In other words, fidelity to the Precautionary Principle depends on intelligent calibration to particularities of risk that pertain to each issue of concern, but with a similar resolve to apply prudently the anticipatory knowledge available.

In this fundamental sense, what is true for COVID-19 is also true for climate change and biodiversity, and likely even more so. Current levels of information suggest that even a dysfunctional delayed response will in due course contain the pandemic although with a needlessly large number of fatalities, as well as high degrees of economic and social dislocation. Yet despite the massive scale of disruption, a pandemic is expected to subside, although accompanied by some new risks of recurrence, permitting at least a prudently regulated return to normalcy. In contrast, once global warming crosses unknowable thresholds or biodiversity declines beyond a certain point, there may be no turning back, the ecological balance could become beyond the reach of alteration by human action or could only be achieved by very austere or expensive downward adjustments in standards of living and life style. This would incur much human suffering and political unrest along the way, especially if the adjustment process favors the rich and powerful, and victimizes the poor and vulnerable, which seems inevitable at this point given the way policy is formed and life circumstances structured.

The second obvious ‘teaching moment’ that has emerged during the health crisis is the globality of the challenge as contrasted with the statist fragmentation of the divisive response structures. Imposing geopolitically motivated sanctions on a state that weakens its societal capability to contain the spread and treatment of the virus virtually ensures that contagion will cross borders in greater numbers, and give rise to prolonging the pandemic and increasing the number of infections elsewhere, including quite possibly in the sanctioning countries. The sanctions currently weakening the coping capabilities of such countries such as Iran and Venezuela create a lose/lose series of antagonistic relationships between the targeted states and the rest of the world, and should be also considered as ‘geopolitical crimes’ or Crimes Against Humanity rather than as discretionary aspects of normal diplomacy. As well, maintaining such sanctions during the pandemic works against operationalizing the insight of global solidarity—‘we are all in this together’—rather than thinking of a riven world in neo-fascist terms of ‘friends and enemies.’

The Trump presidency, oblivious to the pragmatic argument of mutuality against maintaining sanctions during the COVID-19 pandemic is even more tone deaf when it comes to humanitarian normative arguments based on law and morality resting on the unacceptability and unlawfulness of international uses of force that have a primary impact on civilian populations. It is helpful to recall the notorious remark of Madeleine Albright, then U.S. Secretary of State, when asked by Leslie Stahl in the course of a ’60 Minutes’ interview whether an estimated 500,000 deaths of children attributed to the punitive sanctions imposed on Iraq after the First Gulf War five years earlier in 1991 were worth such a high human cost of innocent young live. Stahl’s question to Albright, “We have heard that half a million children have died. I mean, that is more children than died in Hiroshima. And, you know, is the price worth it?” And Albright’s memorable response: “I think that is a very hard choice, but the price, we think, the price is worth it.” Although Albright later expressed remorse about her own phraseology, suggesting that she should have put the blame on Iraq’s leader Saddam Hussein for withholding food from civilians rather than admitting that the deaths resulted from the sanctions. Actually, her spontaneous response was more truthful than her later attempt to shift blame for their inhumane impacts. Why would sanctions be maintained if not felt to be worthwhile from a geopolitical perspective? Beyond this, evidence shows that the Iraqi government behaved responsibly, establishing a food rationing arrangement that made every effort to protect Iraqi civilians from starvation. Trump, and his lead foreign policy spokesperson, Mike Pompeo seem to go further than Albright’s insensitive remark, by intensifying sanctions during the pandemic, grotesquely seeking to exploit the added vulnerability of these targeted societies while meeting the demands of the health crisis.

Trump defies globality in a further scandalous manner by blaming China for the COVID-19 outbreak, again opting for antagonistic tensions rather than affirming human solidarity and mutually beneficial cooperation. Trump also chose the time of this pandemic to defame and defund the WHO because of its supposed complicity with China’s failure to disclose sooner the COVID-19 outbreak in Wuhan. There is no reasonable evidence supporting such inflammatory charges against China or the WHO, and even if the allegations were to some extent accurate, it would not justify antagonizing China or weakening the WHO capabilities at a time when it is playing a crucial role in providing information and guidance to the many countries in the global South that do not have sufficient national health capabilities to depend on national or even regional capabilities. It should be beyond argument that a pandemic threat of this magnitude and lethality needs to be addressed by counseling maximum cooperation among states and through bolstering the resources and capabilities of global coordinating mechanisms. Instead of defaming and defunding the WHO at this time, the responsible approach would be to express gratitude for its existence by pledges of greater funding support. To repeat, such a litany that is true for COVID-19 is as true or truer for other serious present and impending problems of global scope and potentially severe magnitude. The so-called retreat from globalization that partly results from some negative structural consequences of neoliberalism, which has given rise to resurgent nationalisms, seems understandable with respect to the relation of states to the world economy. Nevertheless, it is a disaster if this enhanced statism is extended, as seems to be the case, to ecological and ethical contexts that give substance to nationalist standpoints. Interconnectedness and widely diverse material circumstances are manageable under contemporary conditions only if the behavior of sovereign states accord far greater weight than now to policy coordination and collaboration by way of internationalism, as well as exhibit concrete appreciation of the practical and principled benefits of honoring the imperatives of empathy, hospitality, and human solidarity.

Decades ago, the American poet, Robert Frost, put his prophetic gift to work on what has now become a planetary truism for those who ponder the future of the human experience. In a poem, ‘One Step Backward Taken’ these words of Frost shine:

“I felt my standpoint shaken

In the universal crisis.”

Although I was conscious of the degree to which modern history featured a series of surprises that eluded experts, I was nevertheless surprised by the ferocity and rapid planetization of the Coronavirus assault on human health, and lifechanging, and likely permanent, ramifications for economic and social normalcy. It was not only a revelation of the precariousness of our individual and collective existence, but a stark reminder of the relevance of a sphere of life not previously given the societal and global attention and resources that were warranted. One question that will not be answered for some years is whether the aftermath of the pandemic will generate ‘a new world order,’ and if so, will it be an improvement on what existed before COVID-19. From past experiences, there is little reason to be hopeful unless a revolutionary movement below unexpectedly, effectively, and creatively challenges the established order.

The rhetoric of new world order was initially fashionable as a call for global reform at the dawn of the post-colonial age with its calls in the 1970s for ‘a new international economic order’ and ‘a new international information order,’ emanating from expectations that fairness was attainable if sufficient pressure from what was then known as ‘the Third World’ was mounted. These hopes were crushed by the political and economic forces aligned with capitalist geopolitics in the North dominating the existing world order at the time.

Almost twenty years later came George H. W. Bush’s mobilization of a response to Iraq’s conquest, occupation, and annexation of Kuwait in 1990 by suggesting that ‘a new world order’ was in the making by which he meant that the UN could function to prevent ‘aggression’ in the post-Cold War atmosphere as was originally intended when the UN was established in 1945. After Kuwaiti sovereignty was restored in the First Gulf War, the U.S. Government rushed to shrink expectations about a UN-centric world security system, fearing the responsibilities of being designated as the global peacekeeper. In the words of a leading Washington official at the time this idea of a new world order reliant on the UN ‘was put back on the shelf,’ that is, it was an idea that had served its purpose with respect to Kuwait but should not be counted upon to provide guidance for the future, especially tying American foreign policy and geopolitical discretion to a prior UN authorizations. In an unpublicized talk at Princeton James Baker, the influential U.S. Secretary of State at the time, gave a different spin. In essence Baker said, “Bush was wrong to associate the new world order with the centrality of the UN with regard to peace and security. He should have identified the new world order with the triumph of the American way of life in the Cold War, accompanied by glowing references to market economies and constitutionalism, which provided the contours of what became known during the 1990s as ‘the Washington consensus’ or ‘neoliberal globalization.’

We now can ask whether today’s politicians will think differently about the prospects for a new world order after the pandemic comes under control, and the crisis mood dissipates even if doesn’t fully disappear? It seems more likely that two clashing tendencies will dominate the pandemic aftermath. The first tendency will seek to restore the pre-pandemic dynamic of economic and political order, with modifications limited to augmenting the health sector, and taking advantage of the earlier dislocations to replace workers with machines. The second worrisome tendency is for political leaders to take advantage of the emergency prerogatives of government during the pandemic to institutionalize technologies of surveillance and control, while hardening their borders against immigrants and asylum seekers.

If actualized, neither of these two tendencies will give greater weight to global cooperation, human solidarity, UN authority, empathy, hospitality, and adherence to the Precautionary Principles in dealing with menacing threats clearly visible on the horizon of near future expectations. This further intensification of an already overly politically fragmented world order may be dramatic enough to lead critics to call attention to its defects by again applying the label of ‘new world order.’

If a benign new order built on the principles of stability and justice mentioned above, it will depend on pressures from a transnational movement rooted in civil society, and probably first arising in the Asian context, where several regional government displayed their superior problem-solving skills in the course of containing the COVID-19 challenge. Such a scenario could be endorsed, and even led, by China, the country more than any other with the stature and political imagination to take over global leadership from the United States, which has by its own will and dysfunctional behavior forfeited its prior role, at least temporarily. Of course, it is possible that a post-Trump America will heed Kissinger’s plea for a resumption of U.S. global leadership in ways that take inspiration from its successful restoration of a generally peaceful phase of world order after World War II. Or alternatively, possibly join with China in establishing a collaborative geopolitical framework to address more holistically and cooperatively the currently unsatisfactory responses to ecological, social, and economic global challenges. If this scenario emerges in either form, the label of new world order may yet come to be regarded as a sign of progress and hope, yet its realization will not happen without transnational activism of unprecedented depth and perseverance.

Only then can we recover a standpoint that upholds expectations for a humane and functional response to the universal crisis, which then would allow us to speak hopefully and responsibly about a new world order.

Tags: Global Solidarity, internationalism, nationalism, New World Order, pandemic, Precautionary Principle, Robert Frost

Comments 8 Comments
Categories Commentary, Global Governance, Precautionary Principle, Reflections

Triple Jeopardy: Refugees/Migrants/Palestinian Prisoners

25 Apr

Triple Jeopardy: Refugees/Migrants/Palestinian Prisoners

[Prefatory Note: This post was published in a somewhat altered form in Transcend MediaService on April 20, 2020 under the title “Triple Jeopardy and the Plight of Palestinian Prisoners.]

Double Jeopardy for Refugees/Migrants

Recently reflecting on the plight of refugees fleeing war zones in the Middle East and migrants from sub-Saharan Africa and Central America I was struck by the analogy to ‘double jeopardy.’ As widely understood, double jeopardy is a procedural rule of criminal law that prohibits prosecution by a state of an individual more than once for the same crime. It is deservedly treated as a human right that protects persons from being harassed after judicial acquittal by repeated allegations of the same alleged crime. The International Covenant on Civil and Political Rights (1966) in Article 14(7) defines double jeopardy: “No one shall be liable to be tried or punished again for an offense for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” (There are exceptions for acquittals tainted by fraud, confessions by the accused, and the wording of the rule should be corrected for its gender bias implying that it is only ‘men’ who could be victimized by vindictive re-prosecution).

For some years, the images of violent border security associated with keeping masses of needy refugees or migrants from crossing international boundaries to reach more peaceful or affluent countries in Europe or North America is what prompted me to sense an analogy to the kind of ordeal that exists when someone wins an acquittal after a long, emotionally and economically costly trial, and is then confronted by a new indictment for essentially the same supposed criminal offense. In a well-administered democracy, the double jeopardy rule is taken for granted, and prevents such injustices from happening. But what of the world of refugees and migrants?

What made the double jeopardy comparison apt for me were these haunting images of doubling down on punishment of those who were not only innocent, but already victimized by circumstances beyond their control, and then again punished for acts that deserve empathy and accommodation, not punishment, if humanitarian values were extended to refugees/migrants. My existential premise, borne out by some experience, is that persons almost never leave their place of birth and family residence without overwhelming provocation, and are especially hesitant to use their small saving and meager borrowings to embark on a voyage to a distant land with a different language and culture. Most of us, even if dissatisfied with conditions in our native land or our personal circumstances will still not voluntarily depart from the familiarities of family and friends, and of language, traditions, and nationality. Only circumstances of grave danger such as presented by ravaged combat zones or resulting from grinding poverty found in societies that confront residents and entire communities with gray horizons of hopelessness that offer neither safety nor security, can induce most persons to so uproot themselves. In other words, the motivation underlying the emotional reality of the overwhelming majority of refugees and migrants is one of desperation, of grasping at straws and escaping doom. Of course, the small nomadic elites of adventurers, exiles, and expatriates are examples of persons leaving their home countries not from necessity, but in pursuit of the exotic and the paradisiac.

This sad depiction of the decision to flee to safety or to search for economic security is then generally accompanied by a treacherous and harrowing journey that often drains the traveler of his or her small savings. Many trips end with death and illness for many in the group, or perilous trips across stormy seas or barren deserts, only to be confronted by a coercive ‘no’ in the form of barbed wire, walls, detention centers, and even live ammunition if and when the destination is reached. To be placed in detention centers with long waits may be the best that can be hoped for by such forsaken souls, often including young children, that experience the depths of insecurity in their homeland, and also along the way that reaches a negative climax when and if the national goal is ever reached.

I am not suggesting that this refugee/migrant experience is double jeopardy in a legal sense, but it seems to possess the same ingredients of the unjust repetition of indictment and prosecution, itself punitive, that is prohibited as a part of civilized behavior in a society responsive to the rule of law, and protective of human rights. It is a kind of morally grounded, culturally and spiritually debasing, and often life-threatening duplication of criminal prosecution without any account being taken of human dignity and fundamental innocence of those being victimized, or the ordeal of struggling against a criminal allegation.

And yet, moral outrage or a call for compassion does not acknowledge the complexity of the issues raised. Unlike the individuals accused of the same crime a second time, the refugee/migrant does not, as such, pose real threats to the countries that are being expected to act as benign hosts or to extend hospitality to strangers in need. This is notto say that a country does not have the right to deny entry to those with criminal records or contagious diseases, provided due process is accorded, and similarly have authority to insist that those who enter do legally.

We live in a state-centric world where international boundaries define the outer limits of community, which has not changed fundamentally no matter how much we hear cosmopolitan sermonizing and ecologically persuasive calls for planetary identity. In such a framework, the citizenry of a country feel threatened in various ways by the influx of large numbers of strangers, especially if their racial and cultural characteristics clash with that of the country asked to show hospitality or grant asylum. The reality of this resistance is producing extremisms of scapegoating and xenophobia, which make moderates search for compromises in the form of requiring lawful entry, quotas, job training, and language and civilizational educational resources. Given the scale of the challenge, and the unlikely emergence of greater receptivity, the main line of an effective and humane response structure should be a large investment in overcoming the conditions in foreign countries that give rise to massive displacement and large numbers of persons desperate to find more sustainable life conditions. Overcoming double jeopardy in these settings depends on a self-interested globalization of responsibility for achieving peace and security, as well as lifting the curse of poverty, and this requires the drastic reform of the way the benefits of neoliberal globalization are distributed much more equitably than in the past.

Triple Jeopardy for Palestinian Prisoners at a Time of Pandemic

This metaphor for layers of unjust suffering initially occurred to me while preparing a ZOOM presentation on the abuse of Palestinian prisoners in the context of the health dangers associated with the COVID-19 challenge. Such dangers were present for Palestinians under pre-pandemic conditions, but greatly aggravated by Israeli failures to mitigate the additional and aggravated risks that come from keeping around 5,000 Palestinian prisoners in overcrowded prisons where some of the guards and security personnel were reported as testing positive for the virus yet continued to interact with prisoners without prescribed personal protective gear (PPE), and where insufficient hospital and medical capabilities existed in the event that the disease started to spread. This overall sub-par situation was further accentuated in relation to an. estimated 172 child prisoners, many elderly and disabled prisoners, and almost all inmates incarcerated for nonviolent security offenses that should never have been criminalized because of falling within the scope of a right of resistance possessed by persons living under an apartheid regime, which is itself a serious violation of international criminal law. The right to resist Israeli apartheid, at least within the limits of international law regulating violence by reference to choice of targets and other considerations. Israel has not accepted WHO guidelines or a variety of humanitarian appeals by respected NGOs to release at least ‘low-risk’ prisoners as well as those with ‘underlying conditions,’ children, and the elderly.

Taking these considerations into account the ‘triple jeopardy’ framing seems justified to underscore the layers of injustice endured by Palestinian prisoners at this time. As the Palestinian writer, Ramzy Baroud, writes, “..all of Palestine has been in a state of ‘lockdown’ since the late 1940s when Israel became a state and the Palestinian homeland was erased by Zionist colonialists with the support of Western benefactors.” To drive the point home, Baroud adds, “In Palestine, we don’t call our imprisonment a lockdown, but a ‘military occupation’ and apartheid.” [See Baroud, “A Palestinian Guide to Surviving a Quarantine: On Faith, Humour, and ‘Dutch Candy,’” Middle East Monitor, April 5, 2020]. In effect, Baroud is insisting that all Palestinians are enduring an unjust ‘imprisonment’ that has lasted for more than 71 years with no signs of abatement, and is itself a punishment of individuals of a certain ethnicity for the ‘crime’ of existing.

On this basis, the criminalization of resistance, including nonviolent and symbolic forms, extending even to poem and poets (for example, Dareen Tatour, and her crime, the poem “Resist, my people, resist them”), has resulted in harsh confinement in Israeli prisons, including reliance on such legally dubious mechanisms as ‘administrative detention’ (imprisoning without charges or any due process for extended periods) and the unlawful transfer of prisoners from detention in Occupied Palestine to prisons in Israel [behind the green line], andd out of reach of family members). In effect, the imprisoning of any Palestinian in Israeli jails is Double Jeopardy because it puts Palestinians already punishment by lockdown, displacement, and dispossession behind bars because they dared to assert their right of resistance.

The allegation of Triple Jeopardy arises from the failure to suspend or mitigate prison condition in light of the Coronavirus Pandemic, and the related failure to take responsible steps to protect those so confined from contracting a highly contagious and potentially lethal disease. A virtual death sentence hangs over every single Palestinian prisoner for as long as the pandemic lasts, and poses especially acute risks with respect to particularly vulnerable categories of Palestinians living in prisons.

Toward Solutions?

It is not possible to set forth detailed proposals to overcome double and triple jeopardy as depicted. I will only indicate the vectors that point in a direction sensitive to practical and normative aspects of the challenge.

For Double Jeopardy: seek to accommodate an ethos of hospitality and empathy with a major commitment at the UN and by national governments to take steps to remove the conditions of mass desperation prompting large numbers to leave their homelands, an undertaking ideally funded by a globally administered tax on luxury goods, financial transactions, fossil fuels, and transnational air travel.

For Triple Jeopardy: release all Palestinian political prisoners immediately, with a sense of urgency, and commit to ending apartheid as the essential step toward a sustainable and just peace based on the equality of rights of Jews and Palestinians.

Tags: apartheid, COVID-19. refugee/migrants, double jeopardy, Israeli prisons, right of resistance, unjust punishment

Comments 8 Comments
Categories Commentary, double jeopardy, Israel/Palestine, political prisoners, Reflections, refugees/migrantss, Resistance

World Order and Covid-19 Pandemic

19 Apr

[PREFATORY NOTE: THE POST BELOW IS A SLIGHTLY MODIFIED TEXT OF AN INTERVIEW CONDUCTED BY DANIEL FALCONE, AND PUBLISHED ON APRIL. 17, 2020 IN COUTERPUNCH.]

World Order and the Sars-Co2-Virus

Daniel Falcone: Carlos Delclós, a sociologist based in Barcelona has highlighted the need for bottom up responses for social solidarity in Spain when compared to the unity declarations put forth by the monarchy. Further, journalist Ben Ehrenreich cites that while there are severe problems with the government, remnants of a democratic spirit and mutual aid keep optimism and hope alive within their system of universalized healthcare. Can you comment on the greater European response to pandemic?

Richard Falk: I am aware of the greater strength and role of cooperative movements in European countries, a residue of the socialist movements of the prior century, that give rise to more spontaneous approaches on local levels to immediate threats to well-being, exhibiting both less trust and less dependence on governmental undertakings.

Furthermore, European health systems are more evolved, fewer people left out, and more sense of public responsibility, although some deficiencies also emerged. Italy and Spain lacked sufficient governmental capabilities to cope humanely with the challenge of a pandemic, although the epicenter was initially in Lombardy, the richest part of the country.

Given the urbanization and social complexity accompanying modernity, the need for intelligent, imaginative, and humane governance is a necessity in times of societal crisis, and its absence magnifies suffering.

Daniel Falcone: The World Bank is reporting that Sub-Saharan Africa is experiencing a drastic economic downturn and the first in more than a couple of decades. Can you explain the unfolding in this region, which is fairly under reported by western democracies?

Richard Falk: Sub-Saharan Africa is still heavily dependent on the exports of resources rather than on the provision of services and high-end manufacturing, and as a result is exceedingly vulnerable to changes in the adverse terms of trade that arise whenever “deglobalization” trends are present. It would seem that the rise of ultra-nationalism, as highlighted by “Trumpist” economic nationalism, have negative impacts on sub-Saharan African development prospects.

Daniel Falcone: Recently, I spoke with John Feffer of Foreign Policy in Focus and he explained how the pandemic has impacted globalization in regards to a “slowbalization.” He has commented on additional dimensions of this elsewhere. Could you elaborate on the anti-globalization and ultra-nationalist worldview wave that autocrats around the world are riding currently? This looks as dangerous as the pandemic.

Richard Falk: There is no little doubt a rise of autocrats, elected and non-elected, in what seemed entrenched democracies (U.S., UK, India, Brazil), in faux democracies (Russia, Hungary, Egypt), and monarchies (Saudi Arabia, UAE, Morocco). This authoritarian surge, which came initially as a surprise to most of us, superseded expectations associated with the end of the Cold War that were triumphantly interpreted as an ideological victory for the West and its values, and especially for the American political economy.

George H.W. Bush, president at the time of the Soviet collapse, proclaimed ‘a new world order’ in which the geopolitical hegemony of the U.S. now was unopposed, and would no longer be challenged in global arenas. This meant that the UN could function as intended on the basis of consensus in a world without ideological rivalry, which allowed the UN to sponsor the Iraq War of 1992 designed to restore Kuwaiti sovereignty by compelling Iraq to abandon conquest and annexation.

Then Bill Clinton came along promoting a foreign policy based on a doctrine of ‘enlargement,’ shorthand for predicting and promoting the spread of democracies. It was accompanied by the optimistic belief that an era of peace and prosperity would follow the further spread of democratically governed states. It was widely believed that democracies do not go to war against one another and capitalism is the best engine of growth the world has ever known. From such perspectives the post-Cold War world was envisioned as becoming increasingly both peaceful and prosperous.

Such a worldview was supportive of regime-changing interventions, especially in the Middle East, to get rid of the more strategically troublesome remnants of autocratic regimes and reflected the prevailing enthusiasm about the growth potential of neoliberal globalization, an approach long championed by the neoconservative movement.

To become operational such a policy outlook needed both the 9/11 attacks to re-securitize American foreign policy and the neoconservative presidency of George W. Bush. The decisive test of this proactive outlook occurred in the Iraq War of 2003. Expressing this jubilant mood, Bush II introduced a government report on national security in 2002 with an assertion of faith in the singularity and superiority of the American form of governance that went largely unchallenged at the time. He contended that market-oriented constitutionalism (as exemplified by the USA) had demonstrated to the world that its form of democracy (elections plus capitalism) was the only legitimate way to organize the political life of a sovereign state in the new century.

So, the haunting question remains, ‘what went wrong’? The most obvious explanation rests on the alienating impacts of neoliberal globalization that seemed to heap its rewards on the very, very rich while leading to stagnation or worse for the multitudes.

This structural explanation of the rise of autocracy is certainly a large part of the story as predatory capitalism in this period gave rise to gross inequality on all levels of social order, symbolized by the 26 richest individuals controlling more than half of the world’s wealth. Another part of this story, less frequently acknowledged, is that the socialist alternative to capitalism was successfully discredited by falsely representing the Soviet political and economic failure as a decisive and sufficient test case of the viability of a socialist alternative.

This ideological supremacy of neoliberal capitalism facilitated two regressive developments: first, leading neoliberal globalization to privilege capital over people, or put differently, to choose economic efficiency over human well-being. Secondly, creating a political consciousness that fed the illusion that there were no tenable alternatives to the existing mode of political economy, completely ignoring the kind of autocratic state capitalism that flourished so remarkably in China in an ideological atmosphere that presented itself as fulfilling the hopes and dreams of socialism, experiencing a remarkable modernizing facelift under the leadership of Deng Xiaoping that had did not rest its claims on the virtues of democracy.

For most of the world, the Chinese phenomenon, while mesmerizing, was seen as not generalizable beyond China, or at least not beyond Asia. In such a setting there was a very unhealthy political situation—the dominant practices and policies of neoliberal globalization were not delivering material benefits to most people living in democratic societies, and the excesses of this stage of capitalism were left unchallenged, and hence unmitigated, by socialist challenges that had since Marx led the most adept masters of capital to seek accommodation with the laboring classes and create an image of an ethical capitalism that was inclusive of the great majority of people in their respective national societies.

With that humanistic imperative of ideological rivalry pushed aside, the path was cleared for the emergence of demagogues, and those who found scapegoats to blame for the widespread distress among the public, especially foreigners. This new kind of political appeal produces a blind kind of trust in the leader, however misleading the diagnosis, and feeds a nationalist frenzy at the very time that the world needs recognition of a cooperative global order to address such challenges as climate change. It is not without irony, that the U.S., which had long lectured the world on the many virtues of democracy, should voluntarily succumb to the autocratic ‘charms’ of Donald Trump.

It is notable to take account of the existence of some dissenters from ‘slowbalization,’ the most prominent is Richard Haass, former government official and currently President of the Council of Foreign Relations. He anticipates a recovery process that involves an ‘acceleration’ of pre-pandemic trends, including a concerted effort to restore the neoliberal world order with especial emphasis on its orientation toward limitless growth based on technological innovation and capital efficiency, but revamped in the precarious context of continuing American decline, which includes an absence of the kind leadership required to address global problems through multilateralism.

In the background of the Haass view of the post-pandemic world is an intensifying geopolitical rivalry producing conflict and increasing dangers of strategic warfare, presumably featuring a standoff between the U.S. and China.

Henry Kissinger, a stalwart of the triumphalist outlook that followed the Soviet collapse, is more hopeful than Haass, projecting the period after the pandemic subsides as a call for the reassertion of robust American leadership on the global policy stage. He believes that the openness of trade and the transnational mobility of people depend on the renewal of confidence in the neoliberal world order that proved so successful after World War II, and was constructed on the basis of Enlightenment values emphasizing the fusion of political stability, confidence in science and technology, and market-driven economic growth

In the background of the restoration of the pre-pandemic ‘normal’ is the ecological illiteracy of supposing that maximizing economic growth via globalization, or otherwise, can proceed without respect for the limits on carrying capacity of the earth. Frank Snowden, the widely respected expert on epidemiology in an illuminating interview (Il Manifesto, Global Edition, April 11, 2020) suggesting that COVID-19 virus and earlier flu epidemics (SARS, MERS, Ebola, avian flu) can all be traced to zoonotic transfers of the virus from animals to humans, expressing spillovers that he argues are bound to occur when animal habitats are encroached upon by spreading urbanization and industrialization.

A more reconstructive post-pandemic approach would strive for ‘a new normal,’ which combined the health imperative of sensible preparedness and universal coverage with an ecological sophistication that sought to mitigate inequalities among peoples and societies by addressing poverty as a health issue, including the recognition that diseases are more lethal in relation to vulnerable peoples, who suffer as victims and victimize others by becoming agents of contagion.

Daniel Falcone: After the dust settles from the pandemic, if it does, can you attempt a forecast of how global powers will align or realign?

‘Dealignment’ is more likely than ‘realignment.’ I am assuming here that either that the nationalist retreat from neoliberal globalization will continue or there will be strong moves, hard to forecast, in the direction of regional and global cooperation in key sectors of policy, with international institutions given important coordinating roles. In either alternative alliance, diplomacy seems not likely to reemerge in any manner comparable to what it was in the prior century. Trump has already significantly weakened the Western alliance structure, and except for the forays of “coercive diplomacy” contra Iran (in concert with Saudi Arabia, Israel), seems to have adopted a unilateralist foreign policy course supplemented by transactional bilateralism in which the interaction seeks win/lose outcomes based on hard power disparities.

Reverting to Haass and Kisssinger, it is worth noting that the pessimistic assessments of Haass are explicitly linked to his anticipation of the post-pandemic world order as resembling what happened in the decades after World War I, that is, the Great Depression, the rise of fascism, and a second world war. Kissinger, although habitually associated with a fatalistic view of the international scene, somehow strikes more hopeful notes by advocating and somewhat anticipating a post-pandemic recovery that resembles the dynamics of world order following World War II with the U.S. playing its former leadership role by recognizing the opportunities and needs for a more cooperative approach to global problems.

Daniel Falcone: Are there any chances for United States reform at a local or even an institutional level that can offset the political capital maintained by autocrats both here and around the world? Are we in fact, a “failed state?”

You raise an interesting question. A response must start with the disappointing observation that the 2020 election is between Trump and Biden, a familiar political figure who shaped his career around the bipartisan Cold War consensus of militarism, neoliberalism, and pro-Israeli absolutism. This orientation is what I have called elsewhere ‘the three pillars of American foreign policy’ that only Sanders dared challenge (and paid the price) as one sees what was done to his frontrunner status by the guardians of the established order. Sanders’ response that he lost the primary campaign, but his movement will go on fighting, is suggestive of the gap between the establishment world of political parties and his movement consisting of various societal domains of people that seems openly hostile to the bipartisan consensus, the deep state, and the special interest lobbies that continue to dominate not only the governing process, but also the electoral process

What is worth noticing is that even Trump despite his bombastic claims during the 2016 presidential campaign has as president paid his dues to the bipartisanship in foreign policy with his enlarged military budget, tax cuts for the richest and rollback of regulatory interferences with predatory capitalism, and the greenest light ever given to Israeli expansionism and one-statism. His only halfhearted departure from bipartisanship has been the downplaying of Euro-American alliance geopolitics.

Possibly, the autocratic edge of American politics would be dulled by a Biden presidency by more moderate judicial appointments and some effort to address gross inequalities, student debt, infrastructure, and an improved health system that encompasses the whole society. Yet, it would seem absurd to expect more from Biden, given that his principal message is ideational, a promise to restore national unity by reaching out so far as to include so-called ‘moderate’ Romney Republicans, who have never struck me as moderate except in comparison to their alt-right Republican leadership of the Trump era.

Biden’s unity message is also code language for restoring the bipartisan consensus in an overt form that would counter some of the ultra-nationalist retreat from globalization. In foreign policy we could expect a shift in tone from ‘America First’ to ‘NATO First’ as a way of differentiating his approach from that of Trump and of reaffirming faith in the Western alliance as once again the centerpiece of American foreign policy. It would be foolhardy to expect Biden after a centrist lifetime political career to pursue a progressive social and ecological agenda, yet without such an agenda we can be thankful to Biden for ending the reign of Trump while renewing our severe worries about the social and ecological shortcomings of the American governance experience given 21^st century urgencies.

Tags: Biden, bipartisanship, Cold War, globalization, Haass, Kissinger, pandemic, Sars-CoV-2, Trump

Comments 4 Comments
Categories Biden, Commentary, Demagogues, Global Governance, Reflections

A Prayer in the Time of Pandemic

8 Apr

A Prayer in the Time of Pandemic

Affirming spirituality as the power over life and death I aspire to achieve

this spirituality that is nothing other than the blending of love and mystery

cherishing wonder at a precarious precipice, respecting knowledge

prayer seemed a weakening of spirit, a reaching out to the void, pretending

that there was someone there ready to respond, a metaphysical crutch in times of need

evading the loneliness of being when that other in our dreams is silent when and if we awake

we need not, must not, give up hope against hope, as nadezdha mandelstam never did

we need not, must not, cling to promises that can’t be kept, pretending as paul did when

praising abraham as he “believed against hope in hope” taking the greatest risk

put more simply, still falsely, in hebrews 11:1-“Now faith is the assurance of things hoped for, the conviction of things

not seen,” the assurance invented to banish uncertainty burglarizes

truth, demeaning faith as mere submission to authority, as refusal to live life fully, as refusal of the enchantments of

uncertainty, instead of continuing up mountains to heights where justice dwells, climbing as the air thins, sustained by

love by starlight truly certain and real

yet we can lean to see and understand anew, pushed by the crisis of the earth to open eyes more widely, prayer will be

loosened from moorings of church and state, only then becoming truly sacred: so realized, prayer becomes fervent

hope, not needing to be uttered as if a cry of desperation no longer needing assurances or false promises, prayer

becomes love and attentiveness a stone thrown from land far out falling beyond sight in an ocean of uncertainty

yet not lacking courage to stare at bodies piling up in churches, morgues overflowing, funerals on hold, statistics

replacing stories so that suffering stays abstract, leaders standing stiffly almost at a loss for words for the first time

ever, yet uttering prime time moonshine language as addressing sheep, confusing optimism with hope, curbing

science and scientists, treating misinformation, market-driven and gut-generated as knowledge, even wisdom

yet we go on listening restlessly waiting for a few words exhibiting love uncertainty, losing patience with what we hear

nightly we turn inward for knowledge for wisdom for love and outward for love for friendship invisible communities all

over the planet bonded by these fervent hopes are gathering the strength to be ready for whatever comes tomorrow

and stand by this prayer

Tags: COVIS-19, Hope, pandemic, prayer, Uncertainty

Comments 11 Comments
Categories Commentary, COVIS-19, prayer, Reflections

In Time of Pandemic Praise for the UN

3 Apr

IN TIIME OF PANDEMIC PRAISE FOR THE UN:

The UN Secretary General Promotes Global and Human interests

(Diirector General of WHO Guides Us)

Points of Departure

In recent years, the UN has seemed weak, almost irrelevant to many of the most disturbing global developments. It failed to stop genocide in Rwanda (1994) and Myanmar (2017-19), it has failed over several decades to end Israeli apartheid that is victimizing the Palestinian people and find peace for Israelis and Palestinians, it authorized a limited humanitarian protective use of force in Libya that immediately turned into an unauthorized and unlawful regime-changing intervention by NATO in Libya that brought ongoing chaos to the country, it has unacceptably stayed on the sidelines throughout Syrian and Yemeni ordeals as strife, massive civilian displacement, intervention, along with repeated crimes against humanity, were making a mockery of international humanitarian law, and it watched while disastrous fires burned out of control in the Amazon rainforest and Australia.

The UN is not an autonomous organization, and cannot be faulted for its failures, but its members can. The UN is essentially a political club run for the almost exclusive benefit of its member sovereign states, themselves largely controlled by its most powerful members. This control is exercised by way of funding, voting procedures, and informal modes of exerting influence within the Organization. The UN Charter provides a constitutional framework, which if it could engender compliance, would produce major, desirable, and fundamental global reforms, but the Charter says one thing, while international relations continue to operate according to the logic of militarism and geopolitics. As well, there are some internal tensions written into the Charter, which contains unworkable procedures for taking account of changes in international life, including amending the text. This has given the UN a partially frozen image responsive to the realities of 1945, but increasing out of sync with the world of today.

During the Cold War the inability of the UN to fulfill its promises with respect to peace and security were largely explained by reference to paralyzing encounters between ‘the free world’ and ‘the Soviet bloc.’ Yet, after the collapse of the Soviet Union when a new consensus emerged among Permanent Members of the Security (P-5) not much changed. Many governments showed that they wanted to uphold sovereignty rights rather than be held internationally accountable according to standards set by human rights treaties or by reference to international law. The United States, in particular, insisted on freedom of geopolitical maneuver for itself and its allies, while pushing hard for accountability when dealing with adversaries. It became clear that a weak UN was consistent with the political priorities of almost all of its members, some sovereignty-oriented, a few geopolitically-oriented. At the same multilateralism, based on mutual benefit and global bargains gave the UN a useful role in facilitating global cooperation for the first fifty or so years of it existence, yet surprisingly not in the last 25 years up to the present.

These structural explanations of UN weakness were reinforced by cyclical political changes in the governing style of many important states. The rise of ultra-nationalist reactions to the failures of neoliberal globalization as post-Cold War and post-industrial capitalism revealed its predatory characteristics if not somewhat tamed by countervailing forces accentuated the state-centric framework of international relations that was implicitly hostile to any sources of authority external to the national political order. The kind of political leaders that were elected in dominant countries (U.S., UK, Brazil, India, Japan) exemplified this inward autocratic turn that was particularly opposed to global governance that accorded prominence to the United Nations. It reinforced autocratic trends in middle power democracies (Philippines, Turkey), as well as the embrace of ultra-nationalism by important non-democratic autocracies (Russia, China, Saudi Arabia, Egypt).

The UN Speaks for the Peoples of the World

Against such a background, it might come as a surprise that the UN has played an important role since a crisis awareness unfolded as the COVID-19 challenge became global in scope and severe in depth. The first sign of UN significance was the extent to which governments, the media, and the public looked to and depended upon the World Health Organization (WHO) for information and guidance. Although the WHO was not one of the political organs whose work is generally regarded as indicative of the success or failure of the UN as a world organization, it was ‘a specialized agency’ within the UN System that long had gathered and disseminated information about health issues, and performing vital roles for countries that lacked sophisticated national health services of their own.

What the COVID-19 experience made clear was the importance of information to virtually every person and governmental body on the planet, and the degree to which the WHO and its Director General were quickly established as a valued source of reliable and trustworthy information. The geopolitical rivalry between the U.S. and China, as well as a variety of conspiracy theories explaining the outbreak of the disease cloud our understanding of origins and nature of threat, and what to do about it. This sense of confusion is heightened by lots of huckstering claims being made on behalf of exotic products that purport to strengthen immune systems and resistance to the disease, as well as calls to adopt untested preventive tactics and unconventional treatments. Given such considerations, establishing public trust and informational reliability become paramount goals, and WHO and Tedros Adhanan Grebreyerus, its Director General, have risen to the occasion, gaining media credibility and worldwide respect.

The dramatic highpoint of WHO came on March 11^th when this expert UN body officially declared that the Coronavirus disease causing a worldwide health crisis was a pandemic. Such a declaration was quickly adopted by governments, media, and publics around the world, escalating preventive efforts in the form of lockdowns, travel restrictions, self-isolation, and social distancing overnight. It was a tribute to the quasi-authoritative status on such matters that WHO achieved along with the recognition that no other comparable source of guidance or pronouncement existed in the world. What is more, the WHO determination came after a persuasive show of reluctance to alarm the world prematurely by invoking the incendiary word ‘pandemic.’ In retrospect, it is obvious that pandemic is to health what genocide is to human rights. Where the language of pandemic is appropriate, it is crucial to have such conditions authoritatively identified, and where conditions do not warrant arousing global alarm it is as important to refrain from inflammatory language. Also, relevant is that despite the diversity of perspectives in the world, no serious effort has been made to challenge the WHO’s pronouncement. This is an impressive defiance of the ultra-nationalist mood that has previously dominated policymaking in the last five or so years, and exhibited distrust and disrespect for the UN and its pronouncements.

A second reason that the UN has achieved an enhanced reputation during this period is that the voice of António Guterres, the UN Secretary General, has seemed to articulate proposals that transcend statist and geopolitical orientations, and take their cue from ideas about the wellbeing of humanity, as well as in support of global interests, rather than put manifest nationalistic approaches involving exclusions, walls, and militarized boundaries. So far national and geopolitical leaders have responded to the Guterres call for the suspension of economic sanctions or even more radically, for ‘a global ceasefire’ with silence. Geopolitical actors, especially the U.S. are unwlling to acknowledge the inappropriateness of maintaining sanctions and coercive diplomacy during the pandemic, but neither are such governments likely to criticize the Secretary General openly for speaking out, although arguably his reselection for a second term may have been placed in doubt. In this sense, Guterres has given renewed credibility to the idea that the head of the UN is the world’s leading moral authority figure, a position previously probably most widely accorded to Pope Francis, but with less global outreach as speaking on behalf of the Catholic Church.

What this pandemic has already made clear to many persons is the need for a normative global discourse when it comes to health, which as suggested here, means trust, reliability, and comprehensive and useful information, as well as moral leadership that is not being provided by either states or geopolitical actors. The UN stepped forward to fill this discursive gap in a manner that has already had an impact. Of course, whether a health crisis of pandemic proportions is a stepping stone to normative globalism on other issues can be hoped for, but is far from assured. In fact, there are reasons to be skeptical. Despite the magnitude of the pandemic crisis, the most geopolitical tinged organ of the UN, the Security Council, has not even spoken out to date, much less responsibly performed its cardinal role as guardian of the peace and security of the peoples of the world. If global governance reflected rationality and humane values, rather than hegemonic and nationalistic values, this Coronavirus authoritative discourse at the UN should be directly transferable to climate change, the overall ecological agenda, and fashioning a humane response to migrations flows. Such UN learning and adaptations outside the health domain seems doubtful at this point as doing so would amount to mounting successful challenges to the geopolitical discourse that has controlled the UN since its inception.

If for Health, Why Not Climate Cnage, Biodiversity, Migration?

It had been previously evident that global cooperation was needed to address climate change and related ecological issues, and the UN did provide auspices for the Paris Climate Change Agreement in 2015, which has lagged subsequently, being a casualty of ultra-nationalist dismissal of global policy priorities and Trump’s withdrawal of the United States from further participation in the agreement, the leading per capita source of carbon emissions. There is no doubt that the pandemic has demonstrated the pragmatic benefits of a cooperative approach, as opposed to reliance on competitive national interest approaches to addressing problems causing serious harm and threats of truly global scope. The same benefits of cooperation evident in relation to a pandemic exist with respect to climate change and biodiversity, and to some extent more dramatically, as the dangers of such scientifically established trends are more knowable and menacing, while becoming less reversible than are singular events such as an outbreak of the COVID-19 disease.

Despite this, health is more amenable to a global approach than climate change or biodiversity even though the latter concerns possess a global reach that is beyond reasonable doubt. Perhaps the most salient difference relates to time/space characteristics. The pandemic is here and now, with people dying the world over on a daily basis digitally portrayed in real time, while the impacts of climate change and biodiversity, although certainly having present impacts, are perceived as being largely situated in the future or in mostly geographically remote and limited locales, thus remaining abstract and without mobilizing capability to aarouse the general public, and for this reason tend to become controversial, scorned and rejected by those whose material interests or religious outlook might suffer from timely adjustment. Perhaps, even more explanatory than reference to the interests at stake, is the related issue of the psychological relevance of concreteness. A Coronavirus infection threatens with lethal immediacy the body of every individual inhabiting the planet, and by now most persons know someone who has suffered from the disease. COVID-19 is not a matter of a dispersed threat such as arises from global warming or the seemingly remote threat that arises from the destruction of rainforests or a lessening of biodiversity. Finally, the authority of the UN with respect to health does not encroach upon traditional spheres of territorial sovereignty as is the case with peace and security and with the regulation of private and public sector activity that does harm to the environment. Even the Paris Agreement did not attempt to regulate military causes of carbon dissemination or impose remedies for non-compliance with national pledges to reduce carbon emissions.

Concluding Observations

In conclusion, there is much to learn from the pandemic even at this early stage, and possibly, as time passes a more impressive learning curve will become evident in reaction to the spread and prolonged character of this health crisis. There is little doubt that many governments will learn the lessons of the last war, and be better prepared with respect to the availability of adequate medical facilities to address future large-scale epidemics, including pandemics. And maybe, if civil society activism is alert to the opportunity, some spillover effects will occur leading to a renewed readiness of governments to cooperate for the sake of promoting global interests and protecting global public goods, and in the process reinvigorating the UN as a necessary site of authority, information, cooperation, and institutional legitimacy. It is also quite possible that the UN will be quickly remarginalized as private sector and governmental energies are focused on economy recovery in forms that benefit big constellations of capital and finance.

One additional cautionary observation seems appropriate. What the WHO and the SG of the UN have so far done during the health crisis, while worthy of headlines, posed no direct challenge to sovereignty or geopolitics. It is discursive with no behavioral or direct policy claims, although investing the crisis with the stature of a pandemic did have distinct, and perhaps profound effects, on national responses and public awareness. The grounds for low expectations is strengthened by the failure of the Security Council to step forward with initiatives or even commentary. The Security Council’s discursive silence is rather startling under the circumstances, failing even to encourage recourse to global mechanisms fostering regional and global cooperative responses. The fact that this most statist dimension of the UN had nothing to offer in the face of a global emergency of unprecedented globality and severity offer a guide to what the UN can and cannot do. Such a failure is less that of the UN as an institutional matrix than it is of the nature of geopolitically managed global governance, which has used the Security Council as a subsidiary instrument of control. Furthermore, health has an apolitical essence that is associated with the widespread belief in the sacredness of life, and thus offers resistance to the kind of cost/benefit thinking that is much weaker when the concerns are about economic activity or the sovereignty and security priorities of militarized states.

Tags: Coronavirus, global ceasefire, global cooperation, pandemic, Secretary General, Ultra-Naationalism, UN, WHO

Comments 10 Comments
Categories Antonio Guterres, Commentary, Global Governance, Reflections, Tedros Adhanan Grebreyerus, Uncategorized, WHO

Investigating Israeli Criminality at the International Criminal Court (ICC)

31 Mar

Investigating Israeli Criminality at the International Criminal Court (ICC)

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

Original: English

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

Before:

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

SITUATION IN THE STATE OF PALESTINE

Professor Richard Falk

PRE-TRIAL CHAMBER I

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

Public
Amicus Curiae Submissions Pursuant to Rule 103

Source:

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

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

The Office of the Prosecutor

Ms Fatou Bensoua, Prosecutor
Mr James Stewart, Deputy Prosecutor

Legal Representatives of the Victims

Unrepresented Victims

The Office of Public Counsel for Victims

Paolina Massida

States’ Representatives

The competent authorities of the State of Palestine

REGISTRY

Counsel for the Defence

Legal Representatives of the Applicants

Unrepresented Applicants (Participation/Reparation)

The Office of Public Counsel for the Defence

Amicus Curiae

·
·
···
····
·

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

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2/29

16 March 2020

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

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

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

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16 March 2020

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Registrar Counsel Support Section

Peter Lewis

Victims and Witnesses Unit Detention Section

Victims Participation and Reparations Other Section
Philipp Ambach

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Introduction

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

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

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

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

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

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

The Issue of Statehood

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the four Geneva Conventions and their Additional Protocols.19

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

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

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

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

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

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

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

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

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

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

impunity for international crimes.25

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

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

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

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

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

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

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

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

30 Request, para 109.

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

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

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

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

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

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

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

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

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

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

38 Article 21(3), Rome Statute.

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

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

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

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

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

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

III. The Issue of Territorial Jurisdiction

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

46 Kovács, op cit, para 65.

47 See Request, para 190.

48 Ibid., 192.

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

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

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

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

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

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

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

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

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

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

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

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

57 Shaw, quoted in Request, fn. 608.

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

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

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

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

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

Palestinian criminal jurisdiction.63

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

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

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

63 Ibid., para 70.

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

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

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

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

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

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

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

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

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

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

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or prosecuting such individuals for international crimes committed within the occupied

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

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

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

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

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

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

74 Wall Opinion, 88, 156.

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

76 See Kearney op cit, 34-35.

77 See Request, para 71.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

resolutions of 29 November 1947 and 11 December 1948”.

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

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

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

1950).

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

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

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

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

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

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

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

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

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

102 Ibid., para 33.

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

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

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

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

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

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

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

109 Article 47, Fourth Geneva Convention.

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

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

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

allegiance” to the State of Israel.112

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

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

Thus, although the State of Palestine is prohibited from physically exercising its authority over the city, this does not compromise its de jure sovereignty or its jurisdiction over the territory.

The Gaza Strip
As noted above, the Gaza Strip has been internationally recognised as an integral part of occupied Palestinian territory, and therefore is part of the overall Palestinian territorial unit.114 However, the PNA, and thus the State of Palestine, does not exercise effective, de facto control over Gaza. That, however, has not extinguished its de jure jurisdiction and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

133 Commission of Inquiry Report, para 759.

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

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

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

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

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

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

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

available at: https://richardfalk.wordpress.com/2013/10/10/israels-politics-of-fragmentation/.
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Once more, it is necessary to stress that the presence of disputed borders, or portions of the occupied Palestinian territory wherein the State of Palestine does not exercise effective control, does not preclude Palestine, nor the Court, from exercising full jurisdiction therein. Moreover, as outlined above, there is no valid legal or factual barrier that precludes such a finding of jurisdiction; indeed, it is submitted that the object and purpose of the Rome Statute, the underlying goals of the Court, internationally recognised human rights principles and norms, and the promotion of global justice necessitate that an investigation be immediately opened, encompassing the entirety of the occupied Palestinian territory.
The Court is not bound, nor does it enjoy the authority, to make a substantive ruling as to the statehood of Palestine; such a ruling, it is submitted, would be ultra vires and outside of the Court’s role with respect to international criminal justice. Instead, the Court should recognise what is widely accepted since Palestine acceded to the Rome Statute, and was recognised as a non-Member State by the UN General Assembly: Palestine, if nothing else, is a full and valid State Party of the Rome Statute, and as such is entitled, and fully bound by the instrument. In this regard, the substantive statehood of Palestine, which has been affirmed and reaffirmed, as outlined above, is ancillary.
If the Court deems it necessary to provide a ruling on jurisdiction at this stage, therefore, it is submitted that this is the decision the Court must reach. As rightly noted by Professor John Quigley in his amicus curiae submission, dated 3 March 2020, “[t]he issue of Palestine statehood is a legal matter unrelated to political considerations. To say that Palestine is a state is to take no position on the equities of the Israel-Palestine situation. It implies no position on how the two parties should resolve their differences.”138 The issue before the Court is a legal one, and as such must be considered in light of established legal principles, which clearly indicate that the State of Palestine enjoys the status of a State within the

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

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

Professor Richard Falk

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

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Tags: Bensouda, Criminal Allegations, Global Rule of Law, ICC, Israel

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Categories Commentary, Crimes of State, Fatou Bennssouda, International & Global Law, Reflections

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