Why ‘Genocide’ is still a Controversial Crime?
In this strikingly original, strange, and brilliant book, Philippe Sands raises a haunting question among a tangle of other intriguing issues discussed throughout East-West Street: On the Origins of Genocide and Crimes against Humanity (New York: Knopf, 2016). It is at once a plural biography (with a bit of autobiography thrown in), a jurisprudential fairy tale, and a searing account of the horrifying impact that vicious Nazi policies had on the lives of the author’s family members as well on those of his human rights heroes. The haunting question is this: was it a wise and practical decision to keep the crime of genocide from being part of the international criminal law framework used to assess the individual accountability of surviving Nazi political and military leaders, and then subsequently in dealing with past and present mass atrocities?
Reflecting my own interest over the years in the use and misuse of the language of genocide, I found this to be the most provocative and enduring dimension of this multiply fascinating book in which Sands exhibits his versatility as jurist, legal practitioner, investigative journalist, and amateur historian of the Holocaust as it victimized one small region in contemporary Poland that happened to be the birthplace of his grandfather as well as two of the most renowned contributors to the development of international criminal law of the past century. The book’s title is obscure until we readers discover that East-West Street runs the length of the small town in contemporary Poland where these three families originated, and resided, until the momentous events of the 1930s forced them to seek refuge by moving Westwards.
East-West Street can be read from many different angles, divided into no less than 158 short chapters besides a prologue that explains how such an unusual literary/intellectual journey got its accidental start with a lecture invitation to the author and an epilogue that attempts to summarize the juridical interplay between the two prime architects of core international crimes (Sir Hersch Lauterpacht and Rafael Lemkin) and the crimes themselves (crimes against humanity and genocide). What creates the dramatic tension in Sands’ treatment of this interplay is the contrast between a jurisprudential logic that focuses on crimes committed against individuals as contrasted with a competing logic that emphasizes crimes against groups. Also at play for Sands are the contrasting personalities and legal approaches of Lauterpacht, the cool, pragmatic, revered professorial insider, and Lemkin, the emotionally driven, obsessive outsider who dedicated his adult life to lobbying governments to support genocide as a crime, and somehow managed to get results.
In the background of this titanic struggle of ideas, were the personal stories of the individuals involved, which, in effect, provided the private motivations for such influential public acts. An extraordinary coincidence that Sands puts to excellent literary use arises from the simple fact that both Lauterpacht and Lemkin were connected in their early lives and studies with a small town, variously named, that changed hands eight times between 1914 and 1945, being governed at different times by Germany, Poland, and the Soviet Union. Its most durable name during the period covered in the book is Lemberg, although it is today known by its Polish name, Lviv. What strains credibility almost to the breaking point is that Sands’ own grandfather, Leon Bucholz, also was born in Lemberg, and it is around the lives of these three men of the law that Sands weaves a complex narrative structure that is surprisingly readable. Much of the book is devoted, with passionate attention to the minutest detail, to how their personal lives and sensibilities were shaped by their departure from the Lemberg before it fell under Nazi occupation, and by the pain associated with the wrenching reality of losing contact with their families left behind. Only belatedly, years later did they each discover the ghastly experiences of lethal victimization experienced by family members after the Nazis took over what had then been Polish sovereign territory. It was striking that only silence could accord dignity to occurrences that were evidently experienced as unspeakable, paralyzing a sensitive moral imagination.
Against such a background it is to be expected that the book examines closely the person and behavior of Hans Frank, one of the 21 Nazis prosecuted at Nuremberg, who served as the cruel and devoted Governor General of Poland during the war years when the country fell under German occupation, and became the most notorious killing field of the Nazi era. It is also highly relevant that the three men whose lives and careers are the focal point of the narrative, given further reality by interspersed family pictures and documents, were Jewish, although none with any pronounced religious commitment. Yet their lives and careers were multiply determined by this Jewish identity, and what this meant during a period of unprecedented mass persecution and extermination. This interest in Frank is reinforced by Sands’ extraordinary collaboration with Franks’ son, Niklas, with whom he visits the Nuremberg courtroom where 68 years earlier a death sentence had been imposed on his father. Not to be content with the involvement of Niklas, Sands’ also persuades Horst, son of Otto von Wächter, who administered for Nazi rulers an area that included Lemberg, and had earlier been a classmate of Lauterpacht in the law school of the local university, to assist in the reconstruction of the events. These intergenerational connections led Sands to write the screenplay and perform in a documentary film, My Nazi Legacy: What Our Fathers Did, which had its 2015 premiere at the Tribeca Film Festival, and won recognition and awards.
Such an attempt at reliving of these historical events illustrates the contrasting adjustments to the present, with Niklas feeling that his father fully deserved the punishment he received at Nuremberg, while Horst exhibits a morbid pride, remembering his father’s prominence without any sign of shame or even regrets about his father’s role in carrying out the evil policies of the Nazi occupiers. Philippe Sands positions himself both within and without this apocalyptic past, trying to pull the pieces together in a coherent multi-dimensional account without losing contact with his own personal engagement in this overwhelming family tragedy.
Putting to one side the intriguing biographical and autobiographical levels of Sands’ construction of these various lives, I wish to concentrate my observations on the legal legacies associated with Lauterpacht and Lemkin,
depicted with such vividness throughout the book, reaching their climax at Nuremberg. As Sands observes, crimes against humanity (CAH) and genocide were both radical and innovative juridical ideas seeking to criminalize Nazi atrocities. CAH focused on protecting the individual against the criminality of any state including one’s own, while genocide was conceived to criminalize the mass killing of identifiably distinct ethnic or religious groups. Lauterpacht more or less invented CAH with the intention of repudiating the impunity that traditionally attached to wrongdoing by a sovereign government against individuals subject to its territorial jurisdiction and thus insulating those who acted on behalf of the state from any kind of personal accountability. CAH mounted a legal challenge directed at unconditional territorial sovereignty and the prevalence of absolute monarchy, which had long dominated the state-centric world order established in Europe by the Peace of Westphalia in 1648. Such impunity continued to be a feature of nationalist ideology despite the French Revolution and the emergence of democratic constitutionalism. The numerous subsequent efforts to make governments internally accountable for their acts through law and a variety of constitutional procedures, including elections, did not extend to external behavior. What made CAH such a radical step forward was this insistence on some measure of external or international accountability by means of law.
Lemkin, on his side, invented the crime of genocide, including even the word, almost all by himself. He was guided by the unwavering belief that criminalizing the kind of racialist policies put into practice by Nazi Germany was urgently necessary to save civilization from the recurrence of barbarism. It seems that Lemkin was initially disposed to criminalize such behavior by his shocked reaction to the mass killing in Turkey of Armenians in 1915, and the absence of any punitive international response embedded in international law. He believed fervently that the deadly political virus giving rise to such collective behavior was a distinct form of criminality that should never be conflated with a series of separate criminal acts, however severe, that were directed at individuals.
I would have thought that there was every reason to support both forms of criminality in reaction to the Nazi experience, and to a certain extent, so does Sands. The main technical obstacle, only superficially discussed by Sands, to the prosecution of these crimes at Nuremberg was the prohibition against retroactive applications of criminal laws. In fact, the Nuremberg Judgment devoted considerable energy to demonstrate its respect for the prohibition, endorsing CAH only if the acts in question could be connected with the onset of the war in 1939; in other words, from 1933 to 1939, the early years of the Nazi regime, the wrongdoing of those acting on behalf of the German government continued to be internationally shielded by impunity. Subsequently, the adoption by the UN General Assembly of the Nuremberg Principles, ratified now by more than a half century of state practice gives CAH the status of obligatory norms under customary international law, no longer necessarily linked to aggressive war. More than this, these Principles have come to be regarded as ‘peremptory norms’ or simply jus cogens, that cannot be altered by governmental action, and can be changed only through their replacement by another peremptory norm.
Genocide has had a somewhat similar intellectual voyage after being sidelined at Nuremberg to Lemkin’s great disappointment. His personal crusade to achieve the inclusion of genocide among the crimes charged against the Nazis failed. Undeterred by this setback, Lemkin’s unwavering perseverance after Nuremberg was soon rewarded. The Genocide Convention came into force in 1950, and as Sands observes, almost instantly genocide became the ‘crime of crimes,’ the most stigmatizing form of criminality whose commission results in a permanent tainting of the national character of a sovereign state found to have been guilty of genocide. There have been various allegations of genocide over the decades, with Cambodia, Bosnia, and Rwanda being among the most notorious instances.
Sands situates himself not quite equidistant in relation to these two jurisprudential giants. His own academic life and personal associations disposed him to side with Lauterpacht, celebrating his success in introducing CAH into the fabric of the Nuremberg experience and from there, to become a critical norm in the emergence of international criminal law, and a featured crime embedded in the Rome Statute that creates the legal framework for the International Criminal Court. Sands is unabashedly appreciative, even awed, believinging that Lauterpacht was recognized as “the outstanding legal mind of the twentieth century, and a father of the modern human rights movement.” [loc. 254] Lauterpacht, as an influential Cambridge professor later elected to the International Court of Justice became a member of the British establishment, and was professionally admired for his prodigious output as a scholar that showcased his committed, yet cautious approach to the development of international law. For Lauterpacht this development to be authentic had to arise from the practice of sovereign states. He had a keen appreciation of the limits of what was politically feasible and legally appropriate, and was respectful toward patterns of statecraft, possibly reflecting his exposure while a student to the great Austrian formalist and positivist, Hans Kelsen. In a book built around the organic links between the personal and public, it is hardly surprising that Sands turns out to have been a student at Cambridge and that Eli Lauterpacht, the jurist son of Hersch, was his teacher and a collaborating source of information about his famous father. This contributes one more instance of Sands’ interest in fathers and sons. Unfortunately, for his scheme of things, Lemkin never married and had no sons.
The older Lauterpacht was openly skeptical of genocide, viewing it as ‘impractical,’ even an impediment to the realistic development of international law. Sands is never fully clear as to why a crime that seemed to depict the very essence of the Nazi victimization of Jews and others, should have been put aside on grounds of practicality in the lead up to the Nuremberg proceedings. He does mention in passing American and British reluctance to put such a crime into the indictment at Nuremberg was related to the rattle of skeletons in their respective historical closets: the systematic decimation of native Americans and a variety of British colonial practices. According to Sands, “Lauterpacht never embraced the idea of genocide. To the end of his life, he was dismissive, both of the subject, and more politely, of the man who concocted it, even if he recognized the aspirational quality.” [loc.6700] Sands does refer to the problematic aspects of genocide in various places—especially a lawyer’s difficulty of finding strong enough evidence of the appropriate criminal intent to convince a court of law, considering that those engaged in genocide rarely leave a paper trail that satisfies those sitting in judgment and aware that to obtain a guilty verdict in responses to genocide is an indirect punishment of a nation and its people as well as of the individuals charged.
In this regard, despite the crime of genocide not being part of the formal proceedings at Nuremberg, Germany has been convicted of ‘genocide’ in the court of public opinion, and Germans whatever their relationship to the Nazi experience seem destined to live perpetually under this dark cloud. As many have observed, and I have experienced, this deep German consciousness of historic guilt explains an excessive deference to the policies of the state of Israel and the related fear that any criticism of Israeli behavior, however justified, will be perceived as anti-Semitism. In this respect, there is a real objection to the formal and informal allegations of genocide because it imposes guilt not only on individuals who acted for the state but on the nation as a whole. There is a related issue, not raised by Sands, of the degree of complicity with Nazism that it is fair to attribute to the German people as a whole, and whether this complicity should cast its shadow over future generations.
I have had an interest in the embittered standoff between the Armenian diaspora and Turkey over the redress of historic grievances relating to the tragic events of 2015. To resolve this standoff depends exclusively on the willingness of Turkey to issue a formal acknowledgement that the wrongs endured more than a century ago by the Armenian people constituted genocide. No lesser form of apology by Turkey even if accompanied by initiatives that keep historical memories alive via a museum, educational materials, and commemorative events will overcome this Armenian insistence, supported by many Western governments, that Turkey admit genocide. Sands appears sympathetic with the difficulty posed by this apparent fetishization of genocide, writing, “[i]t was no surprise that an editorial in a leading newspaper, on the occasion of the centenary against Armenians, suggested that the word ‘genocide’ may be unhelpful, because it ‘stirs up national outrage rather than the sort of ruthless examination of the record the country needs.’” [loc. 6618]
Questioning the Armenian insistence on genocide has become political incorrect even though the crime was unknown in 1915 when the offending behavior took place and the modern state of Turkey did not then exist as it only came into existence in 1923. Of course, such legalistic considerations will never resolve the controversy as what is deeply at stake is the way historical memories should be inscribed on political consciousness of both victim and perpetrator societies, as well as in authoritative public accounts. It is plausible to admit that what happened a hundred years would have qualified as the crime of genocide if it took place after 1950. The case is further complicated because many Turks continue to subscribe to a historical narrative that claims that the massacres resulted from excessive uses of force in a wartime situation in which Armenians were seen to be a subversive presence siding with the Russian adversaries of the Ottoman Empire in World War I and included occasions on which Turks were also slaughtered. This counter-narrative complicates any acknowledgement by the Turkish government of genocide as it would agitate the volatile ultra-nationalist sentiments that dominate the extreme right in the country.
It is understandable from Armenian perspectives that only an admission of ‘genocide’ is capable of encompassing the magnitude of the wrongs suffered by the Armenian people. There is no other word with comparable stigmatizing power. It was this stigmatizing power that led to Bill Clinton in 1994, while president of the United States, to issue his notorious order that the word ‘genocide’ should not be used by government employees with reference to the massive killing taking place in Rwanda. Clinton evidently feared that the mobilizing effect of labeling these events as genocide would exert unwanted pressure on the United States to intervene to stop the killing.
This is the meeting point of the genius of Lemkin, and the worldliness of Lautherpacht, with Sands sensitive to the virtues and limitations of both viewpoints although leaning toward the Lauterpacht approach. Of course, the German guilt is quite different in its essentials from the Turkish reality. A Turkish admission of genocide, should it ever be made, would not be internalized in the manner forced upon Germany by the denazification program implemented by the victors after World War II. It is relevant to realize that Armenian genocide did not emanate from an extremist racialism that was so closely connected with Hitler’s rise to power based on virulent anti-Semitism.
In one sense Lemkin has been too successful. In his insistence that what the Nazis were doing to Jews, and other peoples, was a crime against the group, he unwittingly succeeded in elevating genocide above crimes against humanity, and thereby weakened Lauterpacht’s interest in promoting international accountability for crimes without undermining peace among states. There are other concerns. If genocide if read backward into history, as in the Armenian case, it opens a Pandora’s Box that intensifies numerous bitter memories of the past, reopens wounds, and seems to unduly burden present generations with a legacy of criminality that was the work of those no longer alive. What is worse, the Holocaust as the context in which the crime was formalized operates as a standard of comparison, the crime of crimes that lies behind the legal conceptualization, which discourages its acknowledgement by political entities that might be ready to issue an apology but not to suggest that in their national past is an experience that deserves to be treated as comparably reprehensible to what Jews, and not only Jews, suffered at the hands of the Nazis.
Given a world of states, maybe Lauterpacht after all adopted the more tenable position. Perhaps the most that can be hoped for is an international criminal law framework that prosecutes, as appropriate, individuals, and leaves the chronicling of group crime to historians, novelists, and filmmakers. Even here there are problems not faced by Lauterpacht or Sands that relate to the hierarchical character of world order that makes any serious application of international criminal law more a creature of geopolitics than an expression of the rule of law or a tenet of global justice.
Sands while right to be proud of his own role as revered litigator of international crimes adopts a more questionable position by downplaying the relevance of geopolitics. In a notable passage about the objection to Nuremberg as ‘victors’ justice’ he writes, “[y]es, there was a strong whiff of ‘victor’s [sic] justice,’ [at Nuremberg] but there was no doubting that the case was catalytic, opening the possibility that the leaders of a country could be put on trial before an international court, something that had never happened before. [loc. 288] A whiff! [for those unfamiliar with ‘whiff’ its dictionary definition is this: “a brief passing odor in the air as in ‘a whiff of perfume’ or “a very small trace as in ‘a whiff of self-pity in her remarks’] Looking at the impunity conferred by the Nuremberg framework on the indiscriminate, terror bombing of German cities [recall Kurt Vonnegut’s Slaughterhouse Five], not to mention the fire bombing of Tokyo and the atomic bombs dropped on Hiroshima and Nagasaki, the victors’ dimension could not be convincingly marginalized from the overall legal proceedings. It was certainly more consequential than even ‘a strong whiff’! Even the American prosecutor, Robert Jackson, who is portrayed by Sands quite reasonably as the most influential presence at Nuremberg, understood that the moral validity of the decision rendered was precarious, and needed future vindication by being integrated into an international law framework that bound all states, winners and losers, strong and weak. That this never happened deserves commentary that Sands fails to provide.
Instead, Sands reminds us that there has been much follow up to Nuremberg that supports his assessment of its catalytic impact. He cites his own extensive experience with both categories of criminality in cases involving Serbia, Croatia, Libya, United States, Rwanda, Argentina, Chile, Israel and Palestine, United Kingdom, Yemen, Iran, Iran, Iran, Iraq, and Syria as if the mere listing proves his point. [loc. 6607] I believe Sands’ impressive legal activism only shifts the focus. True, there has been a robust development of human rights and international criminal law, especially after the end of the Cold War, but this has obscured rather than overcome this fundamental flaw. The integrity of the rule of law as an operative global system, depends crucially on treating equals equally, and this has never happened, nor will it happen without a sea change in world politics. As African countries have been pointing out with plausibility, criminal accountability for both CAH and genocide is limited to weak states and losing sides in wars, and impunity remains for the strong and winners. We will long be waiting for the likes of George W. Bush or Tony Blair being called to account for their role in embarking on a disastrous aggressive war against Iraq in 2003.
True, introducing these categories of criminality into the legal vocabulary gave a valuable normative tool to civil society, first effectively utilized by the much maligned Russell Tribunal in the midst of the Vietnam War and more recently by the Iraq War Tribunal of 2005 that addressed crimes associated with the Iraq War. Yet civil society has only public opinion at its disposal, and even here, is hampered by the statist orientation of most media outlets that demean such civil society initiatives as illegitimate intrusions on the public sphere reserved exclusively for governments representing sovereign states. At best, these civil society tribunals that pass judgment on the behavior of geopolitical actors are expressions of a moral consciousness that acts as if these norms of international criminal law should be universally regulative rather than selectively applied.
Sands, along with Lauterpacht and Lemkin, share the liberal conviction that law is an autonomous force for the good in human affairs (unless deformed in its application as by the Nazis). Their sense of practicalities appears to be a willingness to overlook geopolitical constraints, and to take what incremental steps are made available by circumstances with the hope and expectation that over time the growth of law and legal institutions will overcome the present arbitrariness of practice. In the meantime, the liberal test of validity is a matter of procedural assurances that trials are fair and that those who are convicted are guilty of heinous acts that deserve to be punished. The related fact that some are too powerful to be accountable is a fact of life that it is best not to think too much about. Along with far more notable public intellectuals (e.g. Russell, Sartre, Chomsky, Edward Said) I dissent from this liberal optimism/opportunism, believing that the conscience of engaged citizens is an indispensable challenge to all political systems, (talking truth to power) rather than limiting constructive contributions by acting within it. At the same time, I would not judge liberal icons, such as Sands and Lauterpacht, who have made a political choice opposite to mine.
In the course of this essay I have ignored other significant publications by Sands, most particularly his prior relevant and important book, Lawless World: America and the Making and Breaking of Global Rules (2005), a well-reasoned and documented critique of the approach to international law taken by the neoconservative presidency of George W. Bush, especially with respect to the Iraq War, but also in reaction to the 9/11 attacks. Although valuing this contribution to the policy debate that occurred during that period, it is fully consistent with the liberal orientation, which is often to oppose American and British foreign policy undertakings, especially if they happen to be unsuccessful and are peripheral to national or strategic interests, and depend upon unilateral aggressive uses of force not authorized by the UN Security Council. In this vein the recently released massive Chilcot Report evaluating British involvement in the Iraq War follows a parallel liberal line, condemning any decision to go to war except on the basis of adequate advance planning and the buildup of public support, but sidestepping the question of whether it was also mandatory on Britain to comply with international law and the UN Charter. Despite the 2.3 million words of the report there is no where a hint about Blair’s potential personal responsibility if international criminal law were to be properly applied.
As expressed at the beginning, despite these differences, I greatly admire the author, and applaud Sands’ dazzling performance. Among other qualities, Sands displays an incredible willingness to go to great lengths to get the details correct. He tracks down addresses, relatives, obscure documents and pictures to piece together a riveting narrative of these three lives, and their families, coping with one of the most extreme collective traumas of all time. As said, this book can and should be widely read from many perspectives, and the psycho-politics of the jurisprudence it imparts is the one that happens to interest me most, but it is only one of several strands in this exceptionally rich tapestry, and each one deserves similar detailed commentary.
Tags: collective guilt, Crimes against Humanity, genocide, Hans Frank, Hersch Lauterbach, Lemberg, Lviv, Nazi Era, Nuremberg Judgment, Philippe Sands, Rafael Lemkin, Robert Jackson, rule of law, Victors' Justice
Global Justice in the 21st Century 
Aftermath of Political Ruptures: Iran, Egypt, Turkey
12 Aug[Prefatory Note: This post offers a commentary of recent dramatic developments within Turkey and the largely critical international media and diplomatic responses. It compares international reactions to political ruptures in Iran (1979) and Egypt (2011, 2013), and encourages greater public attention to the importance attached by the Turkish citizenry to the defeat of the coup attempt and more sympathy with the kind of political leadership provided by Recep Tayyip Erdoğan since the coup attempt of July 15th.]
Aftermath of Political Ruptures: Iran, Egypt, Turkey
A political rupture is a sequence of events affecting essential relations between state and society, and its occurrence is neither widely anticipated nor properly interpreted after its occurrence. After a rupture there occurs a revisioning of political reality that involves a recalibration of state/society relations in ways that remain occasions of enduring historic remembrance. Often these occasions are negative happenings, as Pearl Harbor and 9/11 are for the United States, but sometimes they epitomize points of light in the past as with July 4th commemorating the issuance of the Declaration of Independence.
9/11 was the most recent American experience of a political rupture. It resecuritized state/society relations within the country and transformed foreign policy. It marginalized debates about economic globalization and enlarged the war paradigm beyond conflicts between and within sovereign states. In so doing it highlighted new features of intrastate conflict, treated the entire world as a counterterrorist battlefield, and rewrote the international law of self-defense. Instead of responding to attacks, national self-defense, understood as policy rather than right was dramatically extended to encompass remote perceived threats and even latent potential capabilities.
Another innovative feature of major conflicts in the present global setting is the preeminence of non-state actors as principal antagonists. This preeminence takes the dual form of the United States as ‘global state’ and ISIS, Al Qaeda, and other as non- or at most quasi-territorial political actors, but surely not Westphalian states as understood by the membership rules of the UN. The United States in many of its roles and activities operates as a Westphalian state that accepts limits on its sovereign rights based on internationally recognized borders and the territory thereby enclosed and respects the sovereignty of other states. What makes the United States a post-Westphalian or global state is its projection of military capabilities throughout the entire world reinforced by non-territorial patterns of security claims along with extensive global networks of diplomatic, economic, and cultural influence.
What this all mean is complex, evolving, and controversial. It does signify that war has again, as before Paris Peace Pact of 1928, become a largely discretionary domain of policy, at least for geopolitical actors. We are experiencing, in the arresting phrasing of Mary Kaldor, an era of ‘new wars.’ The rewriting of international law is being done by way of authoritative and largely uncontested state practice, mainly that of the United States. At the margins, there persists a subordinate interpretation of international law of war that clings to what is written on the books, inscribed in the politically unrevisable UN Charter, and shaped by quite divergent authoritative practices that provides a useful summary of expectations with respect to uses of force. Jurists have yet to clarify, much less codify, these new realities in a reformulated jurisprudence that to be usefully descriptive must respond conceptually and normatively to the increasingly post-Westphalian character of world order.
There are also more contained political ruptures that have their primary focus on the internal nature of state/society relations, and seem to be territorial or regional occurrences that may have global repercussions, but do not challenge the preexisting frameworks of law and security that shape world order. I have a particular interest in, undoubtedly reflecting my experienced proximity to three political ruptures that have taken place in the Middle East: Iran, 1979; Egypt, 2011/2013; Turkey 2016. In each of these instances, the issues raised touched not only on the control and reform of state structures, but also on state/society balances pertaining to security and freedom, the relations of religion and politics, the contested agency of popular social forces, and the expansion or contraction of constitutional democracy. In each of these national settings, the controversial responsibility of the United States as influential actor introduces the often problematic role of a global state as a crucial actor in the interplay of contending national political forces.
Comparing these political ruptures is instructive with respect to grasping what works and what fails when it comes to transformative politics that are variously engineered from below, from above, from without, and from within to achieve or resist fundamental changes. In some instances, there are coalitions of forces that blur these distinctions, and the interaction is dialectic rather than collaborative or antagonistic. Especially, the imagined or demonstrated relevance of external involvement gives rise to conspiracy explanations, which are denied and hidden until the whistleblowing of Wikileaks and its various collaborators exposes more of the truth, although not necessarily a coherent or widely accepted counter-narrative. The formal diplomacy of world order is still largely premised on the autonomy and legitimacy of sovereign states, the major normative premise of the European invention of the state-centric Westphalian system, but this has always been qualified to varying degrees by geopolitical ambitions and realities, and despite the collapse of colonialism, this hierarchical ordering role remains a defining feature of the contemporary world, but it tends to have become more covert and difficult to establish on the basis of open sources. Unlike the imperial past when geopolitical hierarchies were overt and transparent, post-Westphalian patterns of intervention and extra-territorial governance are largely kept as hidden from public scrutiny as possible.
My intention is to mention very briefly the experiences of Iran and Egypt, and concentrate on the unfolding situation in Turkey after the failed coup attempt of July 15, 2016. Because these developments in Turkey have yet to assume a definitive or final shape, the fluidity of the situation is illustrative of the forces in contention, and the outcome will for better and worse influence the future of Turkish democracy as well as exerting a major impact on regional and global alignments.
Iran 1979: From the perspective of 2016, it is difficult to appreciate the intensity of the political rupture brought about by the extraordinary popular uprising in Iran that brought an end to the dynastic rule of the Pahlevi Dynasty by the abdication of the Shah. What was extraordinary beyond the display of the transformative impact of a mobilized people, prepared to risk death by confronting the violent guardians of state power, to express their opposition to the established order, was the role of Ayatollah (or Imam) Ruhollah Khomeini in leading the anti-Shah movement. In its failure to perceive the threat to the Shah until it was far too late, the United States was blindsided by the emergence of political Islam as a source of resistance to its grand strategy in the Middle East that was constructed around the ideological suppositions of the Cold War, that is, being anti-Soviet with respect to international alignments and anti-Marxist, pro-capitalist with regard to internal political llfe. Islam was treated either as irrelevant or as an important ally.
Iran was a major theater of contestation throughout the Cold War. It should be remembered that the United States has somewhat admitted the CIA role in the 1953 coup against the democratically elected government of Mohammed Mosaddegh. It was claimed that Mosaddegh was opening Iran to Soviet influence, but the moves against him seem mainly prompted by his strident form of economic nationalism, climaxing with the nationalization of the Anglo-Iranian Oil Company. It is notable that after the Shah was put back on his throne, an early initiative was to re-privatize the oil industry, dividing ownership between European and American oil giants, thereby supplanting British corporate dominance of Iranian oil production.
The 1979 rupture was notable in several respects: the emergence of political Islam as a formidable challenge to Western interests throughout the post-colonial Middle East; the revolutionary transformation of the Iranian state, establishing an Islamic Republic governing a theocratically reformed constitutional framework and an accompanying state structure; the identification of the United States, as ‘the great dragon,’ the principal enemy of Iran and Islam, a situation further aggravated by the hostage crisis following the occupation of the American Embassy in Tehran that lasted more than a year; the inflammatory impact of the failed American-led effort to achieve counter-revolutionary goals by encouraging the Iraqi attack in 1980 and by way of various covert operations designed to destabilize the country from within.
In its enduring effects, the political rupture of 1979 produced an Islamic theocratic state establishing a limited form of democratic governance, a prolonged encounter with the West as well as with regional rivals, especially Saudi Arabia and Israel; an ebb and flow between military threats, sanctions, and challenges directed at the leadership in Iran and diplomatic initiatives seeking some degree of normalization, most notably the Iran Nuclear Agreement of 2015.
Egypt 2011 & 2013: Without any direct acknowledgement to Iran, what took place in Egypt, following a similar rupture in Tunisia, was a successful uprising that led Hosni Mubarak, whose dictatorial presence had dominated Egyptian politics for 30 years, to relinquish political power. The enduring importance of the popular uprising was to exhibit the political agency of a mobilized populace in the Arab world, as well as demonstrate that social media could serve as a potent weapon of political resistance if properly used. Yet, in retrospect, the movement associated with Tahrir Square in 2011 lacked a political understanding either of the politics of Egypt or of the extent to which the established order encompassed the armed forces and was determined to retain control of the state after sacrificing its long term leader. The lack of awareness about the true balance of political forces in Egypt soon manifested itself by way of an electoral success of Islamic political parties, especially the party associated with the Muslim Brotherhood, far beyond what had been anticipated. The failure of the Tahrir Square militants to appreciate the counter-revolutionary danger was expressed especially by their willingness to leave the former governmental bureaucracy in tact and to view the armed forces as trustworthy executors of the popular will rather than as beholden to their affiliations with the old established political and economic order as it operated in the Mubarak era and by benefitting from its close professional and political links to the United States.
For all these reasons, the political developments in Egypt after the Muslim Brotherhood candidate, Mohamed Morsi, was elected president help us grasp the strength of counter-revolutuonary response that culminated in the coup led by General Abdul Fattah al-Sisi in 2013, with huge populist backing under the slogan ‘the armed forces and the people are one’ (or fingers of the same hand’). The result of the 2013 coup was the restoration of authoritarian rule, more bloody in its oppressive tactics than under Mubarak, a crackdown directed at peaceful demonstrators and extended to the elected Muslim Brotherhood leadership of the country, and significantly, an immediate smoothing of relations with the United States, European Union, and Israel, as well as being the recipient of a major infusion of economic assistance from several Gulf country governments.
What these Egyptian events disclose is the acute vulnerability of
an extra-legal challenge to the established order that fails to take control of key state institutions after succeeding in eliminating the dictatorial ruler. Further, that popular discontent can be turned against political reformism to turn back the clock of progress, especially if the armed forces remain responsive to relevant geopolitical priorities and the new leadership fails to deliver economic gains to the population, especially the urban poor. Perhaps, the most enduring effect of the combination of the 2011 and 2013 events is to overcome the earlier impression of the deeply entrenched passivity of the Arab masses, and the related insight that populism can work either for or against secularist or Islamic agendas depending on the domestic context, and its shifting balance of forces.
Turkey 2016: The coup attempt that came close to succeeding, but failed, on the night of July 15th, was immediately converted by the Turkish government into an instant holiday commemorating those who gave their lives to save the Turkish republic against its enemies. There is little doubt in Turkey, regardless of diverging views on other issues, that the Hizmet movement headed by Fetullah Gülen bears prime responsibility for the coup attempt. And there is again wide acceptance among Turks of the related perception that the United States Government aided and abetted both the coup attempt and had been deeply involved for many years in lending various measures of support to the Gülen movement. To what extent and to what end is much discussed, but with little hard evidence, but many suspicious links between the CIA and Fetullah Gülen have been exposed, including even sponsorship of Gülen’s green card residency in the United States by such CIA notables as Graham Fuller.
It is too early to sort out the facts sufficiently to put forward a clear account of the coup attempt, its peculiar timing, its botched execution, and its political intentions. What is clear at this point is that the failure of the coup is a political rupture unlike either the Iranian Revolution or the Egyptian uprising as reversed by a populist military coup. The reactions by the Erdoğan led Turkish government centered on seizing the occasion of the aftermath as an opportunity to forge unity and national reconciliation, and this has so far had impressive results in the principal form of creating a common front among the three leading political parties in the country, culminating in the Yenikapı rally that brought several million people together on August 7th in Istanbul to listen to speeches by the heads of the Government and the heads of the two leading opposition parties. As further signs of what is being called the Yenkapı Spirit were giant portraits of Erdoğan and Kemal Ataturk on the wall behind the podium used by the speakers, and as notable, a long quote from Ataturk in the midst of Erdoğan’s speech. This positive inclusion of Ataturk is a strong indication that the governing party is making a gesture of acceptance to Kemalists and other secular oppositionists who were viewed as the staunchest critics of Erdoğan’s style and substance, as well as providing reassurance that the Turkish state will not abandon its secularist orientation as it moves toward constitutional reform and the distinctive post-coup attempt challenge of eliminating Gülenist penetration from the institutions of state and society that had long nurtured subversive intentions in their secretive leadership cadres while pretending even to their faithful adherents to be promoting nonviolence, moderation, human rights, and a moderate, flexible Islam.
After such a long period of polarization the anti-Erdoğan secularists, although at least deeply grateful that the coup failed and intensely critical of the Gülenist plot as well as convinced of America’s dirty hands, remain wary and suspicious of Erdoğan’s motives. They point out that Ataturk’s portrait was only present and of the same size as Erdoğan’s because Kemal Kılıçdaroğlu, leader of the CHP (Peoples Republican Party), made it a condition of his participation and presence. They also note that Erdoğan in his speech referred to Ataturk as ‘Mustafa Kemal’ avoiding the honorific name conferred by the Turkish Parliament. Opponents of Erdoğan contend that he is using the atmosphere of heightened patriotism to carry out a government purge, detaining and purging thousands, declaring a state of emergency, whipping up popular support for restoring the death penalty, and pushing ahead with plans for a referendum that endorses his strong advocacy of constitutional reform featuring the establishment of an executive presidency with minimal checks and balances.
Tempering this skepticism of the anti-Erdoğan secularist are several considerations that lead to a more hopeful overall appraisal of the present situation. First, and foremost, Erdoğan has staked his politica future on an approach based on reconciliation that to work in the future entails a commitment to greater participatory and more inclusive democracy. This may seem expedient, but was far from predictable prior to July 15th. It would have been quite feasible in the inflamed post-coup atmosphere for Erdoğan to have strongly reaffirmed majoritarian democracy, claiming that he had received a mandate from the Turkish people to govern without constraint and to reconstruct the state along lines favored by the AKP. The reconciliation approach may not last, and depends on mutuality, but as long as it does, the stress on inclusive democracy implies a willingness to make compromises, including the reaffirmation of a secularist foundation of the proposed new constitution. True, Kılıçdaroğlu’s bargained to get Ataturk’s picture to hang at the rally, but the willingness of Erdoğan to give ground and exhibit flexibility is what gives ground for hope about the future.
As far as the mass suspensions are concerned, especially as involving journalists, the media, and educational institutions, there are reasons for concern. There are also contextual reasons to be
hesitant about voicing criticisms oblivious to the security threats that are still present and hard to assess and identify. After all, the Turkish state barely survived a coup arranged from within, and evidently reinforced by elaborate networks of Gũlen supporters that had infiltrated so widely as to make it virtually impossible to distinguish friend from foe. Part of the Gülen strategy was to gain and spread its influence through its extensive school system and the government-run military high schools. There are numerous seemingly reliable reports that entrance exam questions were given in advance to students later made subject to the cultic discipline of the Hizmet movement. What remains to be seen is whether a conscientious effort will be made to distinguish between innocence and guilt in accordance with due process and the rule of law. The state is entitled to take reasonable measures to protect itself, and this includes the declaration of a 90 day ‘state of emergency,’ but a claim of extraordinary authority is still a time to ascertain whether the rights of citizens are being respected and distinctions made between the guilty and the innocent. Again, if Erdoğan wants to sustain the Yenkapı Spirit, he has a strong incentive to avoid launching a witch hunt, and to roll back quickly excesses whenever detected.
The political rupture in Turkey, up to this point, concerns the core of state/society relations. The fact that the failure of the coup attempt is being mainly attributed to ‘the people’ is a recognition of the power and responsibility of the citizenry to defend an elected government when threatened by unlawful and violent seizures of power. As such it extends the democratic mandate beyond the ballot box, and explores a protective role for and responsibility of the Turkish populace. In the case of the populist role in Iran and Egypt, it was to mount opposition against the abuses of the state, while in Turkey it was quite opposite–the defense of the state against a hostile and unlawful enterprise of subversion led by Gülen operatives in the military.
As with the earlier ruptures in Iran and Egypt, the United States Government seems to have had a shadowy, as yet unproven, role in the events of July 15th, as well as in the buildup over the years of the vast networks of Gülen influence, not only in Turkey but by way of its educational presence in over 100 countries. The American relationship with Turkey is deeply at risk if it turns out that the CIA was actively intervening in an important NATO ally. Anger and suspicions resulted from the failure of the U.S. to show more support for the elected Turkish government as the coup events unfolded, contrasting unfavorably with an immediate response by Russia and Iran. The persistence of anti-Americanism is also dependent on how the United States handles Turkey’s formal extradition request. For technical legal reasons, as well as probable political embarrassment, it seems extremely doubtful that the request will be granted. As Erdoğan has already made clear, an American refusal to extradite, regardless of reasons given, will be viewed as unacceptable. In Turkey it will not lessen the anger if the decision is couched in standard legal reasoning (no prospect of fair trial; possible retroactive application of capital punishment; and accusation centered on non-extradictable political crime). Recall the United States refusal after 9/11 to accept the response of the Taliban-led Afghan government that it would be willing to deliver Osama Bin Laden, but only if it was given convincing evidence of his role in the attacks. Such a response was put to one side, and did not for an instant divert the Bush presidency from moving ahead with its regime-changing military intervention.
As with the Iran rupture, the developments in Turkey seem already to have had profound geopolitical effects, especially greatly strengthening Turkish moves toward establishing a close diplomatic and economic relationship with Russia, moving closer to Iran, and adopting a less zero-sum approach to the Syrian conflict. As yet neither Ankara nor Washington has mentioned these policy shifts as potential sources of tension. In fact, the U.S. Government has indicated its willingness to explore seriously the Turkish extradition request. Much is at stake, including the fight against ISIS being carried on from the major American Incirlik Airbase where 50 nuclear weapons are reportedly stored.
Post-rupture Turkey presents many uncertainties at this stage. Among the most important are the following:
–is there a continuing serious threat of a second coup attempt?
–will the current spirit of reconciliation based on participatory and inclusive democracy hold? Will it be broadened to include the pro-Kurdish political party (HDP)? Will Erdoğan revert to his earlier (2002-2009) style of moderate and pragmatic leadership, abandoning the kind of authoritarian ambitions that proved so divisive after 2010?
–what impact, if any, will Erdoğan’s Muslim devoutness have on the political future of Turkey?
–how will geopolitics be affected? A diplomacy of equi-distance as between Russia and the United States/Europe? Realignment by shifts toward Russia, Iran, maybe China and India?
How these various questions will be resolved cannot be foretold with any confidence, and depend on complex interactions within Turkey, in the region, and the world. It would encourage better future outcomes if the media in the West adopted a more evenhanded approach that empathized with the trauma generated by the coup attempt and the difficulties of restored confidence in the loyalty of public institutions, particularly the armed forces. Unfortunately, up to now, the positive aspects of the response to the Turkish rupture of July 15th have been largely ignored in Europe and North America and the problematic aspects stressed usually without even making due allowance for context.
Tags: Ataturk, CHP, Coup attempt, Egypt, Erdogan, inclusive democracy, Iran, reconciliation, secularism, Spirit of Yenkapi, Turkey, Yenkapi Rally