[Prefatory Note: The interview below conducted by my friend, journalist and author C.J. Polychroniou was initially published in the Global Policy Journal, on 11 September 2018, the 17thanniversary of the World Trade Center attacks and the 45thanniversary of the Pinochet coup in Chile that assassinated the elected president of the country Salvador Allende. Had I been asked, I might have commented on the fateful linkage between those two catastrophic events, both giving rise to massive suffering, with the earlier violent and sinister event enjoying the encouragement and possibly participation of the Washington deep state. The text printed below has been slightly modified for style]
Human Rights, State Sovereignty, and International Law: An Interview
We live in an era where virtually every government on the planet claims to pay allegiance to human rights and respect for international law. Yet, violations of human rights and plain human decency continue to occur with disturbing frequency in many parts of the world, including many allegedly “democratic” countries such as the United States, Russia, and Israel. Indeed, Donald Trump’s immigration policy, Putin’s systematic repression of dissidents, and Israel’s abominable treatment of Palestinians seem to make a mockery of the principle of human rights. Is this because of “faulty” forms of government or because of some Inherent tension between state sovereignty and human rights? And what about the international regime of human rights? How effective is it in protecting human rights?
- J. Polychroniou: Richard, you taught International Law and International Affairs at Princeton University for nearly half a century. How has international law changed from the time you started out as a young scholar to the present?
Richard Falk: You pose an interesting question that I have not previously thought about, yet just asking it makes me realize that this was a serious oversight on my part. When I started thinking on my own about the role and relevance of international law during my early teaching experience in the mid-1950s, I was naively optimistic about the future, and without being very self-aware, I now understand that I assumed a moral trajectory that made the future work out to be an improvement on the past and present, that there is ebb and flow, but overall a record of moral progress in collective behavior, including at the level of relations among sovereign states. I thought of the expanding role of international law as a major instrument for advancing progress toward a peaceful and equitable world, and endeavored in my writing to encourage the U.S. Government to align its foreign policy with international law, arguing, I suppose in a liberal vein, that such alignment would promote a better future for all while at the same time being beneficial for the United States, especially given the overriding interest in avoiding World War III.
My views gradually evolved in more critical and nuanced directions. As my interests turned toward the dynamics of decolonization, I came to appreciate that international law had been employed to legitimize European colonialism, including the exploitative economic arrangements that were imposed on many countries in the global south, whether or not they were colonies. I realized that the idealistic identification of international law with peace and justice was misleading, and at most only half of the story. International law was generated by powerful governments and economic elites to serve their overlapping interests, and was respected only so long as the vital interests of these dominant states were not being encroached upon.
The Vietnam War further influenced me to adopt a more cautious view of international law, and even more so, of the United Nations. I opposed the war at its outset from the perspective of international law, citing the most basic prohibitions on intervention in the internal affairs of sovereign states and the core prohibition of the UIN Charter against all recourses to aggressive or non-defensive force. I did find it useful to put the debate on Vietnam policy in a legal format as the country was then under the sway of liberal leadership supposedly responsive to such considerations, but even back then subject to the logic of Cold War geopolitics and its silent partner, global capitalism. The defenders of Vietnam policy, seemingly motivated by Cold War considerations, relied on legal apologetics as well as claims that it was important for world order to contain the expansion of Communist influence throughout Asia, and that the real adversary in Vietnam was China rather than North Vietnam. The legal debate to which I devoted energy for ten years convinced me that international law on war/peace issues was opportunistically subordinated to geopolitics, including by the Western democracies, and besides, legal counter-arguments were always available to governments eager to invoke law to disguise their reliance on geopolitical priorities, especially in the realm of war/peace. In comparison, international law remains useful, effective, and even necessary for many routine transnational activities of people and governments, stabilizing trade and investment relations, but often in ways that favor the rich and influential, meaning that issues pertaining to such questions as maritime safety, international communications, and global tourism exhibit a surprisingly consistent adherence to an international law framework.
The U.S. global leadership role is unique in this respect in the period since 1945. In the early postwar period the U.S. seemed to be the champion of a law-regulated world order responsive to the UN Charter framework. This was never an accurate portrayal of American foreign policy as the Cold War prompted a variety of unlawful interventions after World War II, including assassination plots against foreign leaders perceived as leftists. After the Vietnam War the United States Government gradually quietly seemed to recognize that its foreign policy goals could not be achieved by relying on an international law approach, a recognition that became especially clear in carrying out its unconditional political commitment to support Israel however defiant of international norms and UN authority. The moves away from liberal internationalism accelerated during the conservative and nationalistic presidency of Ronald Reagan who was instinctively opposed to adapting American policy to an international law framework.
It was during the presidency of George W. Bush that international law was been further marginalized by being put aside or crudely reinterpreted whenever seen as an obstacle to a preferred course of action. The United States started spiraling out of control after the 9/11 attacks in the direction of redefining itself an illiberal democracy, a process reaching new heights during the Trump presidency when even the democratic foundational principles of the republic were increasingly drawn into question. This dynamic of mindless lawlessness has been reinforced by the global rise of ultra-nationalist political movements led by demagogic figures that have gained control of important governments throughout the world. For these movements, nationalist goals are always be given precedence without a second thought about legal or moral consequences. From these rightest perspectives international law should not be allowed to interfere with fidelity to a nationalist agenda. At the same time, the pressures exerted by migratory flows stemming from war torn regions, especially the Middle East and Africa, and from ecologically challenged habitats, have weakened mainstream support for human rights, and especially for those who seek relief by claiming a status of refugee or asylum seeker. Despite neoliberal globalization, and in some respects, as a reaction to it, the state system has become more statist than ever, with a corresponding retreat in humanitarian efforts to protect the human rights of vulnerable peoples, especially if they are regarded as strangers to the ethnic and religious community of a particular nation state.
In making this negative assessment, it is important not to overlook the central relevance of international law and human rights to civil society movements for peace, justice, and ecological sustainability. These normative sources of authority give peoples a legitimated discourse by which to oppose oppressive tendencies of the state or international institutions, and to project images of alternative futures that are more benevolent from the perspective of promoting a more satisfying shared destiny for the peoples of the world, with a special emphasis on protecting those who are most vulnerable. It is civil society that has tried to keep the ‘human’side of human rights as integral to the protective mission of law, while governments are again limiting their view of rights to the ‘rights’side as, at most, an entitlement of a national citizenry, especially those who are native born, and even here there is notable slippage by way of surveillance and meta-data scrutiny directed at the internal population.
Q: Human rights are the cornerstone underpinning the rule of law, yet many governments throughout the world violate human rights with frightening frequency. Is there an inherent tension human rights and state sovereignty? Or, to phrase the question differently, do human rights challenge state sovereignty?
A: I believe the premise of your question is somewhat misleading. It may be appropriate to suggest that ‘human rights’should become the cornerstone of a global rule of law, and that it does function internally in this manner in a genuine democratic state. In international society the basis of an effective rule of law is mutual self-interest and reciprocity especially in the context of commercial and financial arrangemenst, maritime safety, and diplomatic relations. When the Universal Declaration of Human Rights (1948) (UDHR) was drafted, largely under the influence of Western liberal internationalist values, shortly after World War II it was looked upon as a largely aspirational document with non-existent expectations with respect to compliance or implementation. This was partly signaled by labeling the document as a ‘Declaration,’which meant that it was without obligatory force. It has been my view that the UDHR would not have won widespread support from leading government had it been negotiated as a lawmaking treaty with the effect of eroding sovereign rights. In this sense, compliance with the norms contained in the UDHR depends on what I have called in the past ‘voluntary international law.’In effect, international human rights standards were brought into being only because they were understood to be unenforceable, but this initial cynicism was challenged over time by a series of unanticipated developments.
Several factors altered these low expectations in ways that have given a weak obligatory status to some norms encompassed by the international law of human rights. For one thing, human rights NGOs emerged such as Amnesty International and Human Rights Watch. These civil society actors adopted as their mission campaigns to exert pressure by way of naming and shaming to induce compliance with human rights standards by governments. For another, the West found it useful to claim for itself democratic practices relating to human rights that were allegedly absent or deficient in the Soviet Union and East Europe, drawing a propaganda contrast between ‘the free world’and ‘the Soviet bloc’that was centered on degrees of adherence to human rights in the liberal sense of individual rights in the political domain. Thus human rights became a valuable propaganda tool to convey what distinguished Cold War adversaries from one another in a self-serving manner. The Soviet Union countered Western allegations by claiming that human rights should be conceived more collectively in relation to societies as a whole and with an awareness of class differences, and thus emphasized adherence to economic and social rights as beneficial for the entire citizenry. This ideological difference, combined with the push for obligatory standards in international law, led to the artificial division of human rights into two parts, and their formulation in two separate treaties: Convention on Civil and Political Rights (1966) and Convention of Economic, Social and Cultural Rights (1966). As might have been anticipated, the Western countries give their entire emphasis to civil and political rights, and deny any obligatory force to economic, social, and cultural rights, which are derided as unenforceable and inconsistent with the workings of market economies that sort out winners from losers without efforts to protect those who are victimized by market forces.
Against this background two important international developments lent practical political significance to these conceptual issues. First, the efforts of the countries in East Europe to gain freedom from Soviet rule, led to movements of resistance organized around demands for adherence to human rights by the institutions of the state. Secondly, the UN-backed Anti-Apartheid Campaign illustrated that human rights, if widely backed on a global level, can be a formidable instrument of soft power resistance to an oppressive regime of the sort that governed apartheid South Africa. In such contexts, international law and human rights played important roles in struggles by people against repressive conditions, and deserve appreciation by progressives who are otherwise dismissive of hypocritical legalism and moralism as the means by which the rich and powerful hide their reliance on naked power to achieve their selfish ends.
These developments suggest the emergence of human rights, but not yet its global acceptance as enforceable law. Particularly over the course of this century human rights have been under intense pressure from a number of sources. First came the American response to the 9/11 attacks in 2001 that produced a counterterrorist campaign that subjected suspects to torture and indefinite detention without charges or trial. Then came the migration and refugee crises that exerted pressures on various states to close their borders, despite the life-threatening denials of human rights entailed. Finally, came the rise of autocratic leaders who relied on scapegoats and fear-mongering to justify disregard of rights by governmental institutions, especially of all residents who lacked the panoply of credentials relevant to nationality and citizenship.
We can work toward a world in which there is a global rule of law that embodies human rights, but such a world does not now exist, and to be fair, never existed. Sovereignty based on territorial boundaries and international recognition, and given emotional content by nationalist and patrioteering ideologies, have all along tended to override human rights concerns whenever the two sources of authority clash. Despite the use of the word ‘human’the real perception of ‘human rights’remains dependent for implementation on national procedures of implementation, which has meant national bias and selectivity.
Q: How does Donald Trump’s immigration policy square with human rights and international law?
A: Trump’s behavior on immigration issues proceeds as if international humanitarian law doesn’t exist, or at least doesn’t count. His approach to Muslim potential immigrants or undocumented Hispanics living in the United States displays a monumental indifference and lack of empathy to whether such an identity should be respected and protected. Trump’s sole criterion claims to be whether or not it is good for America with a pragmatic and selective approach to law enforcement (useful with respect to undocumented immigrants) and a total disregard for the values and norms of human rights. Overall, Trump has exhibited contempt for international law treaties that were considered when negotiated as major breakthroughs contributing to peace, security, and a sustainable environment. Among his most notable repudiations of law-oriented approaches to difficult international issues were his withdrawal from 2014 Climate Change Agreement, repudiation of the 2015 Nuclear Program (5 +1) Agreement with Iran, and refusal to take part in international efforts to develop a humane and collective approach to problems arising from global migration and refugee flows. Trump’s ultra-nationalist and Islamophobic political agenda is self-consciously and deliberately insensitive to claims advanced on the basis of international law or simple morality. It is a view that accords preferences to geopolitical opportunism in all sectors of international life that give unreserved support to nationalist priorities while arrogantly refusing to take into account considerations of legality or of moral and political legitimacy.
Q: Ever since it’s creation as a nation-state, Israel has shown an absolutely brutal face towards the Palestinian people. Why is the so-called international community allowing Israel to continue with its inhumane stance towards the Palestinians?
A: I think the fundamental explanation for this long experience of Israeli oppressive practices and policies with respect to the Palestinian people flows directly from the essential nature of the Zionist project to establish an exclusivist Jewish state in a predominantly non-Jewish society, and to do so during the long twilight of European colonialism. This reality was further shaped by the Zionist insistence on seeking to be a legitimate modern secular state that respects human rights and formally operates as a constitutional democracy. Such Zionist goals meant that to be Jewish and to be democratic led directly to the forcible dispossession of as many as 750,000 non-Jewish residents of Palestine in 1947 in events differentially remembered by the Palestinians as the Nakba, or ‘great catastrophe,’and by the Israelis as the War of Independence. My point is that ethnic cleansing was embedded in the establishment of a majoritarian and exclusivist Jewish state from the moment that the Israel came into being as a sovereign state, which was dubiously admitted to the United Nations. This insistence on being an exclusivist Jewish state was always embedded in the Zionist Project, but it was not acknowledged nor revealed until the passage of the Israel Nation State Law of the Jewish People a few months ago. This law removes any ambiguity, converting the de facto realities of an apartheid state into a self-proclaimed de jure framework.
There is a further issue of great importance. The idea of self-determination gained prominence during the period after World War II, gaining momentum as a result of a series of anti-colonial struggles involving countries throughout Asia and Africa. The Palestinian people could not be expected to submit to the Zionist Project without doing all in their power by way of resistance, and archival research has conclusively demonstrated that Palestinian resistance was anticipated by early Zionist leaders. These prospects and realities of resistance generated Israeli responses designed not just to uphold security, but to crush Palestinian hopes and lead to Palestinian submission to an acceptance of what was made to appear to be ‘a lost cause.’
The supposed Trump ‘deal of the century’is a geopolitical reinforcement of Israeli efforts to compel the Palestinians to accept an Israeli victory, and to content themselves with some improvements in the economics of everyday life attainable only under Israel’s political and cultural domination. Again, the cycle of resistance and repression is mutually reinforcing, and can be expected to continue until Israel is forced by pressure to recalculate its interests so as to reach a political compromise capable of producing sustainable peace based on the equality of the two peoples. This is what happened in South Africa, coming upon the world as a great surprise. It came about as a result of mounting worldwide soft power pressures that led the political leadership to accept the dismantling of the apartheid regime in the country as a lesser of evils. Until Israel’s political leaders reach such a point, there will be escalating patterns of Palestinian resistance, reinforced by international solidarity initiatives, giving way to interludes of intensified Israeli repression, and on and on, a vicious cycle seemingly without end, but one that will at some point yield to Palestinian pressures.
Of course, in the background until recently, was the relevance of the Jewish diaspora as creating a geopolitical situation that shielded Israel from efforts to implement either UN majority views on how to resolve the conflict or to exert inter-governmental pressures on Israel by way of sanctions. Zionism is a non-territorial world movement with a territorial base in Israel since 1948. With Trump in the White House Israel is assured of unlimited political support for its policies of brutality against the Palestinian people as well as for the realization of its maximal territorial ambitions. This development is accentuated by the broader developments in the Middle East that have led to a convergence of primary interests of Arab governments with the regional policies of Israel, which has meant a weakening of regional and international governmentalsupport for the Palestinian national struggle. The failure of the Palestinian movement to achieve political unity contributes further to the current ordeal being daily experienced by the Palestinian people as the excessive Israeli violence at the Gaza border in response to a largely nonviolent protest movement has recently demonstrated so dramatically in weekly killings and massive casualties that has gone on for many months.
Q: Numerous artists withdrew recently their participation from a music festival in Israel, apparently under pressure from the Boycott, Divestment, and Sanctions (BDS) movement. Given that Israel is not facing the sort of international isolation that apartheid South Africa begun to face years before it’s collapse, is BDS of any concrete benefit to the Palestinian people, or merely a plain irritation for the Israeli government?
The growing impact of the BDS Campaign is a sign that global solidarity movement of support for the achievement of Palestinian basic rights is gaining political traction throughout the world. With the UN unable to implement its numerous resolutions based on upholding Palestinian rights under international law and the Oslo ‘peace diplomacy’abandoned after falling into a condition of disrepute, civil society has both the opportunity and responsibility to play a central role in creating the preconditions for a peaceful settlement of the conflict in a manner that recognizes the rights and equality of Jews and non-Jews. BDS is the spearhead of this form of coercive nonviolent efforts to obtain compliance with basic requirements of law and morality. It should be kept in mind that BDS was not an internationalist venture, but formed in response to a call for solidarity more than a decade ago by a large number of NGOs based in Palestinians and has continued to be led by Palestinians.
The frantic efforts of Israel and its supporters around the world to criminalize participation in BDS seems an over-reaction to the effectiveness of BDS as a tactic of opposition and a challenge to the legitimacy of Israel as an exclusivist or apartheid Jewish state. Such moves to defame BDS supporters and even to criminalize participation is posing a serious danger to free expression in the West, including at universities. It should be appreciated that BDS tactics are entirely nonviolent, although admittedly militant with a coercive intention, and based on transnational civil society ‘enforcement’initiatives in settings where the institutions and procedures of global governance are unable or unwilling to protect the rights of vulnerable peoples. If such forms of free expression are suppressed it is a huge setback for democratic governance, as well as creating a dangerous precedent for the future.
The pronounced efforts to brand BDS as ‘anti-Semitic’is particularly regressive and unfortunate. By this insistence in defining anti-Semitism as embracing harsh criticism of Israel it directly challenges freedom of expression and weakens the capacity of society to promote social and economic justice. Besides this, by conflating criticism of Israel with hatred of Jews, Zionist opportunism is confusing the nature of anti-Semitism in ways that obscure real threats of ethnic hatred, which is as unacceptable to BDS supporters as it is to BDS attackers. The definitions of what sometimes called ‘the new anti-Semitism’by the U.S. State Department and by the British Labour Party are illustrative of this unfortunate trend.
At the same time it is important to appreciate the potential leverage exerted by the BDS campaign. Roger Waters, co-founder of Pink Floyd, recently called cultural and sports boycotts of Israel by world class artists and celebrity athletes as ‘a game changer.’He had in mind at the time the singer Lana Del Ray who had just withdrawn from scheduled concert appearances in Israel and the star Argentinian footballer, Lionel Messi, who captained the national team that cancelled ‘a friendly’with Israel prior to the Moscow World Cup. Waters explains his animating motivation with these words tied to the wider struggle for human dignity:
“And as I say often on stage, when we all got together in 1948 in Paris, and the Universal Declaration of Human Rights was signed by the then-fledgling United Nations, it declares that all human beings all over the world, irrespective of their religion, ethnicity, or nationality, have a natural right to basic civil and human rights, and to the right of self-determination. And I believe that to be true. So this struggle is really only an attempt to implement those brave words from 1948.”
The long victimization of the Palestinian people is a stark reminder that the original undertaking to promote human rights in 1948 remains an almost invisible distant goal. In praising those who support boycotts Waters declared that it is simply “the right thing to do.” In so declaring he was explicitly invoking Archbishop Tutu’s influential remark that ‘neutrality in the face of injustice’ is morally unacceptable.
It is helpful to remember that most of the positive changes with respect to law and morality generally start on city streets with expression of outrage directed at prevailing policies. This was true of the civil rights movement in America, of the protests against Communist rule in Eastern Europe, of the Arab Spring, of the struggles for gay rights, and indeed it is descriptive of every notable positive development that has occurred during my lifetime. Yet one should not get carried away. We should not, however, uncritically glamorize movements from below. Fascism was responsive to populist frustrations giving rise to demagogues who stir crowds to frenzy with their demonic solutions to the ills of society, and most ominously, we such patterns presently gaining political ground in many countries.
Q: You served for many years as United Nations Special Rapporteur for Palestinian Human Rights. What has been the role of the UN towards the so-called Israeli-Palestinian conflict, and where does international law stand over this matter?
My experience at the UN as Special Rapporteur helped me understand why the UN is important, yet extremely limited in its capacity to affect behavior due to its lack of independent political capabilities needed to implement its recommendations. This gap between capabilities and expectations was particularly apparent in relation to the Palestinian issue. In both the Human Rights Council in Geneva and the General Assembly in New York, the Palestinian struggle to achieve their rights was supported rhetorically by an overwhelming majority of states, yet it was opposed by important geopolitical actors, especially the United States. In concrete terms this UN majority was able to insist on fact finding inquiries into allegations of Israeli wrongdoing and to release reports extremely critical of Israel’s behavior, but the Organization was blocked as soon as it tried to implement any recommendations that would challenge Israel’s policies and practices. Such outcomes on the level of behavior give rise to impressions of UN irrelevance that are as misleading as are excessive reliance on the UN, as now constituted, to serve as a reliable vehicle for achieving the values of peace, global justice, and ecological stability.
In a positive manner, the UN was a crucial authority with respect to validating Palestinian grievances, and helped Palestine in its effort to win the Legitimacy War with Israel, which is important. Legitimacy Wars are ‘fought’to get the upper hand with world public opinion by appealing to international law and international morality. In the early period of Israel’s existence, with the cloud of liberal guilt associated with the Holocaust still shaping political consciousness, the wrongs done to the Palestinian people were virtually erased from awareness in the West. In recent years, the soft power balance has been shifting in Palestine’s favor just as the hard power balance is more weighted in Israel’s favor than ever before. It should be appreciated that most political struggles relating to self-determination during the last century were won in the end by the side that won the Legitimacy War, and not the side with military superiority. This observation applies not only to the wars against European colonialism, but it also relates to many of the American regime-changing interventions as well as most graphically to the Vietnam War in which the U.S. exerted military dominance and yet lost the political struggle at the root of the conflict in the end. Explaining this apparent paradox would loosen the hold of militarism on the political imagination in this century.
Another aspect of my experience as a UN appointee, although not a UN civil servant as the position was voluntary and unpaid, was a bewildering mixture of independence and defamation. Even the Secretary General insulted me on more than one occasion but admitted that he lacked the authority to dismiss me. Only the Human Rights Council could do this if a majority of member states found that I exceeded my mandate. Throughout my tenure at the UN the HRC overwhelmingly supported my efforts as Special Rapporteur. At the same time, ultra-Zionist NGOs, UN Watch and NGO Monitor, were free to roam the halls, and release all sorts of defamatory material about me without losing their accreditation at the UN, and even having an unseemly leverage with several pro-Israeli governments, prompting diplomats representing the U.S., UK, and Canada to echo their attacks almost word for word.
My position at the UN was tricky in unexpected other respects, with pitfalls that I discovered only in the course of my experience. Perhaps, most significantly, I came to realize that the Palestinian Authority (PA), which represents Palestine at the UN and originally backed my appointment, pushed hard behind the scenes in my first years in the position to have me dismissed by the HRC, and further put me for awhile under rather intense pressure to resign. I only began to understand this when it became clear that the PA seemed to put greater stress on their rivalry with Hamas than with their struggle for Palestinian self-determination, and as well, were somewhat compromised by their quasi-collaborative relationship with Israel, especially with respect to West Bank security arrangements and access to international aid cash flows. What irritated the PA was my effort to present the role of Hamas fairly, especially as it related to developments in Gaza, and the initiatives taken by Hamas leaders to negotiate a long-term ceasefire with Israel. With the passage of time I did work out live and let live workable arrangements with the PA who were ably represented in Geneva and New York by Palestinian diplomats who were dedicated to achieving Palestinian self-determination but believed their effectiveness depended upon accepting UN constraints associated with an acceptance of the reality that it is the U.S. that calls the shots on many issues of concern to Palestine. In other words, I learned to be less judgmental without giving ground on my essential effort to discern and report the truth as I perceived it.
Finally, I was forced to accept the fact that although I did my best for six years to express the realities of the Palestinian situation, focusing on the denial of basic rights under international law, including the inescapable relevance of continuous unlawful Israeli encroachments on occupied Palestinian by settlements, the wall, disrupting mobility, and numerous other measures, the Palestinian situation on the ground got worse and worse with the passage of each year. Israel never adhered to international law treaty arrangements that obliged UN members to cooperate with the UN in the discharge of its official undertakings. When I tried to enter Israel at the end of 2008 on an official mission trip, I was expelled and detained in a prison cell for more than 16 hours. Despite this, the UN was itself timid and intimidated, unwilling to mount a public protest or to secure my access throughout my term.
What I did achieve as SR was to facilitate some shifts in the public discourse on the Palestinian struggle within the UN itself and in relation to the NGO community and the attentive media. It became more possible to speak of ‘settler colonialism’in relation to the Zionist Project of establishing a Jewish state with the blessings of British Foreign Office in 1917 although the Jewish population of Palestine at the time was less than 6% and to use ‘annexation’with reference to the expansion of the settlements established in violation of international humanitarian law governing belligerent occupation and even to refer to ‘apartheid’as the essential character of the manner in which Israel maintained control over the deliberately fragmented Palestinian people. It was these assessments that exerted enough influence to help explain the personal attacks on me as an anti-Semite and political extremist. It also led me to have very positive relations with many of the delegations representing countries supportive of Palestine and to receive private reassurances of support and even admiration from high-ranking UN staff members.
Q: If state sovereignty and international protection of human rights are incompatible, what is the way out of this conundrum?
A: There are two obvious paths to achieve greater degrees of compatibility. The first path would involve stronger regional and global mechanisms to promote compliance with fundamental human rights standards. In a UN context this would require a major reform unlikely to take place in the foreseeable future, the elimination of the right of veto enjoyed by the five permanent members of the UN Security Council or at least an agreed renunciation of the veto in situations involving human rights as distinct from peace and security. In effect, this would lead to a weakening of geopolitical leverage within the UN and a corresponding strengthening of the Rule of Law, and more generally, of international law. Since such developments, although morally desirable, are implausible given the present political realities of international life, the best current hope to promote compatibility from withoutmay be at the regional level where shared values and interests are greater and geopolitical interference less pronounced. This regional option seems more available, for example, in Latin America than East Asia, although in the face of the global rise of autocratic patterns of national governance, the prospects for regional implementation of human rights standards are also not currently very bright.
The second path to compatibility is via stronger efforts at national implementation. Such a possibility seemed more realistic at times when constitutional democracy seemed the wave of the future. Now with the tide turning in autocratic and ultra-nationalistic directions the resistance to any domestic imposition of international standards seems doubtful if they clash with national policies and practices. To the extent that national political systems embody human rights standards as a matter of national policy the issue of compatibility is minimized, and in such circumstances there are few real tensions associated with the assertion of sovereign rights and national autonomy. When security crises, as in the aftermath of the 9/11 attacks, push leaders to take expedient measures in the name of counterterrorism, then as was the case in the United States, even torture becomes ‘legalized’on the national level, and international treaty commitments to the contrary are ignored.
As the former High Commissioner for Human Rights, Prince Zeid Raad al Hussein declared in a speech at the observance of the 25thanniversary of the UN Conference on Human Rights and Development held in Vienna, human rights are experiencing a retreat across many fronts at the present time with few signs of any significant countervailing moves. The illiberal state, which almost everywhere is replacing the liberal state, no longer as a matter of course embraces humane values, with the weakening of a human rights as a result. To the extent that there continue to exist a robust constituency for human rights it is situated in civil society, and its transnational initiatives. In this regard, I would view the BDS Campaign in support of Palestinian grievances as essentially a popular movement dedicated to achieving basic human rights for a long oppressed people.
Global Justice in the 21st Century 
In Praise of Kamila Shamsie Home Fire
13 OctIn Praise of Kamila Shamsie’s Home Fire
It took the withdrawal of the Nelly Sachs Prize to make me familiar with the fine literary achievements and compassionate politics of Kamila Shamsie. Selfishly, I cannot thank the Dortmund City Council enough for its outrageous behavior, evidently canceling the award because a right-wing newspaper outed Shamsie as a supporter of the BDS Campaign. I can imagine Shamsie’s feeling of hurt as well as disappointment as this incident unfolded. In her novels, she has manifested an uncannny awareness, more so than any writer I have encountered, of the precarious existence of ethnic, gender, and civilizational outsiders, especially Muslims, if they happen to reside in the supposedly once more tolerant West. Her words of eloquent response to the Dortmund about face express both her magnetic literary personality and moral intelligence: “It is a matter of great sadness to me that a jury should bow to pressure and withdraw a prize from a writer who is exercising her freedom of conscience and freedom of expression; and it is a matter of outrage that the BDS movement (modelled on the South African boycott) that campaigns against the government of Israel for its acts of discrimination and brutality against Palestinians should be held up as something shameful and unjust.”
Germany seems particularly susceptible these days to Islamophobic tropes, especially those given traction at the expense of Muslims, Palestinians, and immigrants. It seems that even 75 years after the Holocaust the German political establishment is still attempting to convince themselves, as well as the State of Israel, that the Holocaust was a national anomaly. Seeking to prove the unprovable, Germany and Germans have chosen to fall in love with Israel precisely because it is the nation state of the Jewish people, and for this reason alone it can do no wrong as we all know that love is blind. In their vain effort to make such a surreal posture credible, Germany insists on going even further, as if to drive the point home to any doubters, by converting Israel’s critics into Germany’s adversaries, somehow forgetting that the locus of the anti-Semitic gene present in the German body politic is situated on its far right, and is definitely not to be found even among the most uncompromising supporters of the BDS Campaign. To suggest otherwise, as is the inescapable implication of the Dortmund action, is to slander a writer of exquisite moral sensitivity. Her actions as a citizen exhibits a strong bond between her sense of right and wrong that infuses her novels and her nonviolent engagements on the side of justice for the Palestinian people. Bonds of this nature are what keep democracy alive, and should be celebrated now more than ever, not condemned.
Evaluated from a more humanistic perspective, this incident confirms the impression that Germany as a nation has learned nothing from its past. To side with Israel is to side with an apartheid government that imposes a regime of daily victimization upon the Palestinian people (treating them as enemy aliens in what once Palestine!). To regard those who oppose this Israeli behavior as if they are the miscreants is to learn nothing from the rightly repudiated German past. It is to be complicit in its repetition.
Under these circumstances, my expression of personal gratitude to Dortmund may seem odd, yet it is quite easy to explain. If it had not been for the withdrawal of the prize, I would not have become an avid reader of Shamsie. The prize might have caught my wandering eye, as should earlier some of the dazzling reviews of Home Fire, but with a busy life along with an array of self-indulgent distractions, I would almost certainly not have taken such a drastic step as to acquire the novel, and then find myself so overwhelmed by its literary quality and brilliant commentaries on the human condition that I immediately obtained, and then read with uncharacteristic concentration, Burnt Shadows in two ten hour days of uninterrupted reading. Reflecting on this experience, which I wish is being replicated by others shocked into a similar response to mine, I became appreciative that, depending on circumstances, we sometimes become more intellectually and culturally indebted to acts of negation than to those of affirmation. It may be that those favoring the Dortmund jury reversal supposed that withdrawing the prize would have the valued added of lessening interest in Shamsie’s writing, and instead it seems to be spreading the word that she is a great writer!
Perhaps, if writers in Britain had not organized a joint letter of solidarity with Shamies to the London Review of Books, the abstraction of learning about a cancelled prize would not have overcome my habitual sloth, and I would have moved on. I was also drawn to look for myself at the work in question by Shameis’ unrepentant response, defending her BDS support as something she did as a citizen, which in any event should have had no bearing on whether her novel was more deserving of recognition than were the other short listed competitors for the prize. Until this happened, I would have thought the Nelly Sachs Prize honored literature, rather than kneeling at the altar of political correctness. From now on whenever Germany does something similar, I will do my best to make them pay, not only by joining the protest, but by embracing the work that they repudiated. Let these prizes remain noteworthy, but only if future cancellations serve more as magnets than as repellents. My fear is that foundations and selection groups that give such prizes will in the future become more wary, do their homework better, and bypass candidates whose sympathies with the Palestinian struggle might stir the waters of controversy. It is worth realizing that much of the evil in the world is what is done off camera, behind closed doors, and we who wish for other realities, never get wind of what is going on. Self-censorship may be more destructive of freedom of expression than censorship. Dortmond’s rationale for retraction can be discussed, rejected, overcome. If Home Fire had been quietly put aside by the jurors in their deliberations, it would have aroused no protest, enlisted no new circle of admirers, and no positive voices reminding us that BDS is dedicated to nonviolent liberation, nothing more, nothing less.
Yet before touching on the qualities that make me so admiring of Home Fire, I would comment a bit more on what seems like a panic attack. We need to ask what made the folks in Dortmund act so inappropriately as to make themselves appear both craven and foolish? At first glance, it seems that these days right-wing pressure works more often than it should, although ironically, it is the far right that is the incubator of real anti-Semitism. The true face of Jew hatred revealed itself in the very recent Halle incident in which a right-winger aimed to slaughter Jews at a German synagogue on the Yon Kippur holiday. Further, even granting the Zionist feverish campaign to brand BDS as expressive of the so-called ‘new anti-Semitism,’ to treat Shameis’ support of a cultural boycott as enough to induce the city of Dortmund to withdraw the prize seems to signal societal panic, maybe a reaction to the rise of the anti-immigrant, anti-Muslim AfD (Alternative for Germany). It is of more than passing interest that the AfD was not content as were the mainstream German parties in the Bundestag with calling BDS ‘anti-Semitic’ but wanted the non-violent movement formally banned altogether. The resolution adopted in May 2019 by a rare cross-alliance of political parties was itself a lamentable response to pressures being exerted by Zionist groups may have set the stage for the Dortmund retreat. It was followed shortly by a similar action in Aachen where an award was withdrawn from Walid Raad, an Lebanese innovative artist with a world reputation because he reportedly refused to denounce BDS, carrying the imperative of political correctness a menacing step further.
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Part of the dark charm of Home Fire is a tribute to Shameis’ ‘see it all eyes’ that illuminate the complexities of Islamic jihadism, how it appeals to those ‘out of place’ around the world, wounding and rupturing the flow of life for those burdened and blessed with a hybrid ethnic, religious, and class identity. Shamsie tells us that her narrative inspiration for Home Fire is the Greek play of Antigone where a heartbroken sister defies her uncle, Creon, the king of Thebes, by burying her rebellious brother who died on a field of battle, and thus declared a traitor by Creon; by law he was denied the right of burial and his body left to rot on the battlefield until he was restored to dignity by the defiant Antigone. Sophocles depicted this classic instance of overriding the law of the land by acting in obedience to the transcendent law of the human heart, given concreteness over the centuries by natural law jurisprudence and more recently, by the universal principles of human rights. Shamsei imparts her meaning by choosing a tag line from Sophocles that appears alone on a page preceding the novel: “The ones we love.. are enemies of the state.”
Reading Shamsei made me recall my experience 30 years ago when I read Toni Morrison’s Beloved. The novel made me realize, although growing up in the racially self-righteous, self-segregated liberal confines of Manhattan, that until I read Beloved, I had never grasped the existential horrors of post-slavery racism in the United States, especially throughout the South, and more subtly in the rest of the country. Similarly, until I read Home Fire I never thought empathetically about the intimate lives of terrorists and their loved ones, pitting love within a family against what the state decrees as the limit of acceptable conduct and the moral ambiguities arising from the dreadful harm done to innocent others by terrorist violence, whether by the state or its enemies. The perpetrators are also victims, and the victims can become perpetrators propelled by a vicious retaliatory logic that finds words to justify even beheadings; a jihadist in Home Fire says this: “..what you do to ours we will do to yours..” In other words, when we free ourselves from liberal forms of political indoctrination to experience the radical and reactive otherness that produces delicate negotiations between love and law the simple verities of moral truisms evaporate before our eyes. If we nurture our spiritual selves, a formidable challenge, those brave enough would almost always choose the path cleared by the heart rather than mechanically adhering to the cold logic of those who insist on observing the law however unjust. A signal achievement of Home Fire is to weave a credible tale of such nurturing through the selfless passions of Aneeka, a luminous being, compelled by sibling love to respond to her hapless terrorist twin brother, Pervais. The fact that Aneeka is studying in London to become a lawyer, while Pervais is enchanted by digital mysteries of recorded sounds, somehow heightens the tension between law and love, with a romanticized forgetfulness when it comes to prudence in a public domain of discriminatory vigilance in the world after the 9/11 attacks.
Shameis’ has produced a moral fable for our times. It is given novelistic and societal complexity by the apparent innocence of the twins, Pervais killed by a colleague in the course seeking to come home to Britain because after becoming disillusioned by his exposure to ISIS, and Aneeka herself defying a vindictive British law denying any right of return even to British citizens if officially declared to be terrorist suspects. With deep symbolic resonance, the corpse of Pervais was sent to his ‘ethnic home,’ Pakistan, where Aneeka traveled to perform her own version of a sacred burial ritual. We are told in a sprightly Note of Acknowledgement at the very end of the book, in case it did not earlier cross our minds, that Shameis’s work was foreshadowed by the exploration of these themes in Sophocles’ most memorable play, Antigone. Even though I studied Greek theater literature as a student some decades ago, I admit that I never on my own drew the connections between Home Fire and Antigone, and when instructed, I found it worth knowing, but quite irrelevant to my intense enjoyment of this extraordinary novel. The idea of loyalty to love by performing a proper burial may retain a certain symbolic relevance in our world, but it is less inscribed in the modern sensibility than it was in ancient times when such ritual matters were regarded as concerns of ultimate significance, although Shameis brings it to life because the characters and plot are so emotionally enveloping.
I found Shameis’s electric feel for language, including the radiance of the conversational dialogue and the creation of vivid and sympathetic characters interacting in the course of an ingenious plot that addressed several distinctive themes of this particular historical moment are some of the elements that make this novel so exciting as a de-Orientalizing work of fictive art. By reading Home Fire we learn what is excluded from reading newspapers or listening to politicians. Shameis has a special talent for conveying the wonderfully non-conformist dimensions of human lives struggling for meaning and love in our chaotic, confused, and violent world. Even the older sensible sister of the twins, Isma, burdened with parenting them from their childhood, gives principled prudence its due, and yet the book opens ironically with Isma’s own interrogation ordeal at Heathrow as she departs Britain to earn a graduate degree at an American university. Her extremely unpleasant exit experience results from nothing more incriminating than her racial and religious identity, and more plausibly, by her being marked for special attention at immigration portals due to their awareness that her abandoning father died an al Qaeda militant en route to Guantanamo.
This novel was for me an experience of adult education at its best as well as an absorbing artistic reading pleasure. What we learn, above all, is that judging and assessing others from their outside appearances and external criteria produces false impressions that often lead to tragic outcomes. We also learn that grief, forgiveness, and empathy are among the most powerful private emotions that contrast favorably with the cruel opportunism of those who hitch their wagon to the conventional wisdom of state power as intrusively enacted in ways that disrupt the lives of gentle people.
Dortmund was quite right to select Home Fire for a literary award, which also informs us deeply about the vulnerability and fragile live of those at the Muslim edge of Western societies, especially if they are unwilling or unable to compromise beliefs and identity. Kamila Shamsie teaches us by her artistry to understand better the worlds we so unknowingly inhabit. We should also pause long enough to notice her way of living, feeling, and acting as if humanity was her true native country.
Tags: AfD, anti-Semitism, BDS Campaign, Budestag BDS, Dortmund Germany, Halle, HOME FIRE, Israel, Kamila Shameis, Neely Sachs Award