[Prefatory Note: The essay below is a modified version of the 2018 Annual Lecture of the International State Crime Initiative (ISCI) of Queen Mary’s University London, given on March 22 of that year. Its original title was “Geopolitical Crimes: A Preliminary Jurisprudential Proposal.” The text of the lecture has been further revised since publication in the Spring 2019 issue of the Journal of State Crime. Its major premise is that international criminal law has developed a framework for judging the criminal conduct of states with respect to armed conflict and in the relations of state/society relations, but is silent about even the most severe crimes of diplomacy. It is these ‘geopolitical crimes’ that are more responsible for inflicting mass suffering on civilian populations than are most of the forms of international behavior currently criminalized. I am aware that criminalizing acts of diplomacy is a revolutionary idea, but no less for that, deserving of commentary and debate.]
GEOPOLITICAL CRIMES: A REVOLUTIONARY PROPOSAL
Points of Departure
When we think about international relations in a general way we typically presuppose a state-centric world order. I find this misleading. Actually, there are two intersecting and overlapping systems of rules and diplomatic protocols that are operative in international relations: a juridicalsystem linking sovereign states on the basis of equality before the law; and a geopoliticalsystem linking dominant states regionally and globally with other states on the basis of inequalities in power, scale, wealth and status. It is convenient to consider the juridical system as horizontal and the geopolitical system as vertical so long as this distinction is understood as a metaphor to distinguish hierarchical from non-hierarchical relations that are operative in international politics.
The United Nations (UN) embodies this structural dualism that pervades world order, and is hierarchical: the subordinate horizontal organizational axis based on juridical equality as exhibited by membership procedures and by the recommendatory authority of the General Assembly. This compares to the supervening vertical axis as embodied in the Security Council in which the permanent membership of the five states considered victors in World War II enjoy a right of veto, and possess an exclusive authority vested in the Security Council to make decisions that are theoretically enforceable.
My purpose in these remarks is to extend the notion of international state crime from its familiar horizontal axis, and suggest the significance of state crime on the vertical axis, which I will call “Geopolitical Crime”. I believe that this category of criminality has been “overlooked” in international criminal law (ICL) despite its responsibility for massive human suffering, and directly linked to some of the most serious deficiencies and unresolved turmoil in contemporary world order. Perhaps, overlooked is not the best word to describe the malign neglect. Maybe “blocked” is more accurate, as consistent with successful efforts of geopolitical actors through the centuries to evade all forms of accountability under international law for state crime unless adversary leaders are. targeted by the winners in major wars.
Of course, I am mindful of the fact that Geopolitical Crimes have not yet been formally or conceptually delimited, and are not even conceptually delimited in aspirational language at the present time, and are likely to never be accepted by the current breed of juridical gatekeepers as a valid legal category. Nevertheless, I believe that the identification and articulation of Geopolitical Crime is of pedagogical value in understanding the causal antecedents of some of the worst features of global politics, as well as of normative value in identifying what kinds of behavior in certain diplomatic settings are likely to produce future harm and by so identifying, encourage more mindful statecraft in the future.
At the outset it needs to be appreciated that international criminal law (ICL) as part of the horizontal/vertical normative mix is currently a very flawed system of law: in such crucial areas as humanitarian intervention, criminal accountability, human rights and the International Criminal Court (ICC), the application of ICL exhibits double standards, which has been producing a pattern of increasing accountability for the weak and vulnerable, and almost total impunity for the rich and geopolitically powerful and politically insulated. The result is a form of “liberal legality” that is structure blind when it comes to holding geopolitical actors to the same standards of criminal accountability as other sovereign states.
My intention is to put forward in an exploratory and tentative spirit a somewhat comprehensive proposal to imagine and delimit two closely related behavior patterns that deserve to be properly classified as Crimes Against Humanity, but are not now so treated. I am provisionally calling these “crimes” “Geopolitical Crimes of War” and “Geopolitical Crimes of Peace”.
My purpose is to identify patterns of deliberate behavior by leading governments in global or regional contexts that inflict severe harm on the individual and collective wellbeing of people, and do so knowingly, willfully, or with extreme negligence, especially in the contexts of war and post-war “peace diplomacy”. Actually, I would be receptive to suggestions of a more suitable label for these patterns of behavior than “Geopolitical Crime”, but for now will stick with this terminology. These proposed “crimes” have yet to be acknowledged as such, much less formally prohibited by treaty or practice. In this sense, this proposal for their inclusion in a jurisprudence fit for humanity is ‘revolutionary.’
On one level, I realize that I may be casting myself in the role of a latter day Don Quixote tilting at the windmills of an ideal legal order rather as did the erstwhile nobleman of La Mancha as he yearned for the gallantry of knights of old. I am sensitive to the fact that delimiting the behavior of leading states as a Geopolitical Crime may strike many persons as a wildly romantic or utopian non-starter, if not seen more destructively, as an effort to subvert the authority of liberal legality by highlighting its jurisprudential deficiencies.
My central critique of ICL is its grant of a free pass or exemption to geopolitical actors and their close allies, which has caused so much harm in the past, continuing into the present, and threatens to do even greater harm in the future. It can be argued that even if this is the case, why call attention to the weakness of ICL by proposing a form of criminalization that is unlikely to ever happen, and if it does, will never be implemented. The experience of the ICC makes these low expectations seem realistic. Nevertheless, while aware of these concerns, I believe there are several reasons that make it worthwhile to delimit Geopolitical Crimes.
First of all, to discuss what I propose to identify as “Geopolitical Crimes” by pointing to historical examples helps us consider why many things have gone so badly wrong in international relations over the course of the last hundred years at the cost of millions of lives. I am well aware that counterfactual narratives of history are inevitably problematic as we can never know what might have happened had we chosen “the road not taken” to recall the motif of Robert Frost’s famous poem.
Secondly, aspirational norms of ICL can become meaningful for civil society actors, even if ignored or rejected by the diplomacy of geopolitical actors (e.g. BAN Treaty – UN Treaty on the Prohibition of Nuclear Weapons, New York, United Nations General Assembly 2017). Delimiting Geopolitical Crimes seeks to fill serious world order and international law gaps created by destructive and intentional policies and practices of geopolitical actors. Raising an awareness of such gaps also helps us understand the degree to which the UN, including its subsidiary organs, is similarly constrained when seeking to fulfil its substantive undertakings as set forth in the Preamble to the UN Charter.
Indeed, civil society tribunals, ever since the Russell Tribunal (International War Crimes Tribunal, Stockholm/Roskilde, 1967) have examined allegations of unacknowledged war crimes of geopolitical actors, including Crimes Against Humanity, by the U.S. in Vietnam, back in 1966 to 1967. Such an undertaking was dismissed and denigrated at the time by mainstream thinking as an absurdly misguided challenge to the behavior of a geopolitical giant in the midst of an aggressive war. In fact, the Vietnam War was the kind of war that international criminal law in the aftermath of World War II had no trouble classifying as a Crime Against Peace at the Nuremberg Tribunal when addressing the behavior of a defeated Axis power.
Despite these efforts to discredit the Russell Tribunal its inquiries and testimonies produced valuable commentaries on the Vietnam War that would not otherwise be available to us. In this regard, in a manner similar to the government-organized war crimes tribunals after World War II, the main value of such civil society initiatives is to narrate on the basis of substantial evidence the wrongdoings of the defendants, whose punishment is of secondary importance, despite these individuals having done terrible things on behalf of a particular state.
I was involved in the Iraq War Tribunal that in 2005 brought to Istanbul before a jury composed of internationally known. moral authority figures, Iraqi testimonies of combat experiences and an array of international experts to record the violations of international law and of the UN Charter on the part of the United States and United Kingdom. In the end, in a manner no other institutional actor could do, this civil society initiative documented and supplied moral and legal reasoning as to why this war should be regarded as a criminal enterprise.
Part of my argument here is that the failure to delimit “Geopolitical Crimes” deprives us of a truer understanding of what went wrong and was wrong, particularly in the course of and the aftermath of World War I and II, and more recently in the responses to the 9/11 attacks on the United States. The wrongfulness in these instances arises from the manner in which the war and peace diplomacy was used to demonize the adversary and exonerate the victor, or in the 9/11 instance, to embolden a wounded and traumatized superpower to take steps previously treated as prohibited by international law. Considering Geopolitical Crimes is also a matter of attentiveness to the historical antecedents of conflict and political extremism that are habitually misrepresented by propaganda and one-sided interpretations, if treated at all.
The third justification for this line of prescriptive thinking is essentially pedagogical to influence normative discourse in relation to war and peace, suggesting that to ignore geopolitical wrongdoing is to overlook one of the major causes of conflict, chaos, injustice and extremism in the world order experience of the last hundred or more years. Jurisprudential innovations of the kind recommended here has taken place in the past. Raphael Lemkin is often heralded as the person who single-handedly invented the word “genocide” in 1944, and finally produced its acceptance by the powers that be, leading to its incorporation in the authoritative Convention on the Prevention and Punishment of the Crime of Genocide in New York (United Nations General Assembly 1951).
In the course of the Vietnam War, in response to the conduct of environmental warfare, a biologist at Yale, Arthur Galston, came up with the term “ecocide”, an analogue to genocide, but in relation to natural surroundings. I later drafted a proposed Ecocide Convention that I hoped at the time could and should become part of international criminal law (see Falk 1973). Unfortunately, unlike genocide, ecocide has not yet been incorporated into ICL, at least never at the inter-governmental level, although civil society actors are active in promoting ecocide as an international crime that should be implemented by enforcement. In this regard, the idea of ecocide as a crime has been widely accepted in several influential civil society settings, and has become part of the progressive public discourse relating human activity to environmental harm.
And fourth and finally, the articulation of geopolitical crimes, as crimes, might induce greater care on the part of some policy planners and governmental leaders in avoiding harmful practices in the future, even if such decision makers continue to deny any legal obligation to do so. The nuclear taboo is an example of a tradition of non-use of nuclear weapons that in part stems from the horrific realization of the atomic antecedent of these weapons in the closing days of World War II. The normative discourse reinforced this taboo, most notably by General Assembly Resolutions (United Nations General Assembly 1946), the Shimoda Case decided by a (Tokyo District Court 1962) and by a 1996 Advisory Opinion of the International Court of Justice (International Criminal Court 1996). We might describe such a taboo as “informal law” that if backed by practical wisdom can lead to impressive levels of compliance, sometimes higher than what is achieved by formal law, even in a treaty form, especially if compliance is geopolitically inconvenient (Article VI, United Nations Treaty on the Non-Proliferation of Nuclear Weapons, New York, United Nations 1968). Beyond this, if such taboos are violated, the perpetrators might appropriately be deemed responsible for criminal behavior if what is done is widely regarded as Geopolitical Crimes, which might have the effect of expanding the jurisprudential and pedagogical influence of civil society tribunals.
Delimiting “Geopolitical Crimes”: Jurisprudential Clarifications and Historical Illustrations
It is appropriate to consider Geopolitical Crimes from a jurisprudential perspective, and then provide illustrative cases. I will choose the impact Geopolical Crimes on the practices and policies imposed on the Middle East in the peace diplomacy of the victors after World War I. I will also make brief reference to the Geopolitical Crimes of War and of Peace associated with the conduct of World War II and the conditions of peace established subsequent to the war, especially the ambiguous legacies of the Nuremberg and Tokyo War Crimes Trials. I would also point to early initiatives of the United Nations, which bears serious unacknowledged responsibility for the ordeals of the Palestinian people and the failure over the course of decades to find a sustainable peace based on the respective rights of these two long embattled peoples.
These various historical circumstances present complicated and controversial contexts, and as I am suggesting, my commentaries at this point are more intended as a means to initiate discussion than a claim to achieve an authoritative interpretation of such multiply contested and layered historical events.
An alternative illustrative situation that qualifies as geopolitical criminality could have been provided by offering a critical account of punitive restrictions imposed on German sovereignty by the Versailles Treaty in the form of reparations and demilitarization. It is arguable that this diplomacy constituted Geopolitical Crimes of gross negligence contributing to the rise of Hitler and Nazism. It is significant, suggesting an informal learning process, that peace diplomacy after World War II deliberately avoided the imposition of a punitive peace upon the defeated Axis Powers, although these defeated states and their leaders were guilty of a far worse path of criminality than what the countries defeated in World War I had done.
More recently, in the context of the First Gulf War in 1992, the victorious coalition again imposed a punitive peace on Iraq in the form of economic sanctions that pro- duced catastrophic predictable losses of civilian lives, including among children (see Beres 1992). Why these punitive and indiscriminate sanctions were imposed remains not entirely clear. Partly it reflected a substitute or compensatory course of action for the failure of the victorious coalition to pursue all out political victory of the sort that ended both world wars. The post-war sanctions imposed on Iraq can be thought of as compromise between pushing for regime change in Baghdad and the grudging acceptance of the government of Saddam Hussein as legitimate. The Geopolitical Crime arises from the failure to take steps to avoid causing suffering to the civilian population of Iraq. To target civilians is an instance of state terror that should be treated as an international crime.
Let me first try to describe more adequately what I mean by “Geopolitical Crimes”. My reference is to deliberate or grossly negligent undertakings by leading governments representing sovereign states or international institutions that violate core norms of international law, diplomatic customary practices and the protocols of international relations, and fundamental principles of international ethics. Often, the most serious harm done by these violations results from longer term dislocations that should reasonably have been foreseen. If this is so, it provides a rationale for imposing legal responsibility as reasonable and appropriate, especially with an eye towards inhibiting the repetition of comparable behavior in the future. It could be thought of as ‘a precautionary principle’ for diplomats. For example, if the imposition of “punitive peace” had been rendered unlawful in light of the World War I experience it might have exerted some deterrent impact on imposed harsh conditions on Iraq in 1992.
Historically, there is a tendency for the victors in major wars to have opportunities to alter international relations according to their values, interests and fears. This was certainly true of the outcomes of the major wars involving Europe (see Beres 1992). However, this is not always the case. Sometimes Geopolitical Crimes have immediate, intended and foreseeable effects. Two obvious recent examples: the 2017 blockade and related steps coercively imposed on Qatar in response to its failure to meet the 13 Demands made by a coalition of members of the Gulf Cooperation Council plus Egypt (see Falk 2018). The Geopolitical Crime present centers on the unlawful intrusion on Qatari sovereignty, with intended harm to public and private sector activities, as associated with the impact of the 13 unreasonable demands as reinforced by administrative decrees and blockades.
My second example is President Trump’s thrashing (Borger et al. 2018) and subsequent repudiation of the P5 + 1 Agreement on Iran’s Nuclear Program (Joint Comprehensive Plan of Action 2015), a course of action that makes a destructive and unlawful war in the Middle East far more likely, and its threat, a certainty.
It is, of course, entirely reasonable to argue that some alleged “Geopolitical Crimes” produced bad outcomes that could not have been reasonably anticipated or that the political actors involved had been motivated at the time by good faith, conventional wisdom and political realism. One important context for geopolitical criminality, as earlier suggested, is in post-conflict peace diplomacy where the victor calls the shots.
For instance, at the Nuremberg and Tokyo trials of surviving German and Japanese military and political leaders, the criminal activities of the victors were exempted from scrutiny, and could not be mentioned by the defense, however serious and relevant. In partial deference to such a constraint on prosecution, German and Japanese defendants were not charged with crimes that the Allied countries had committed. This selectivity was extensively critiqued as “Victors’ Justice” (see Minear 1971). More specifically, in light of the Allied “saturation” bombing of German cities, the German, Italian and Japanese bombing of civilian populations was not among the crimes alleged. Such forbearance in the manner of victors’ justice not only exempted the practice from accountability in the war crimes tribunals, it unwittingly normalized for the future saturation bombing as beyond the reach of international law.
This double effect was particularly striking in light of the pre-war denunciations of
Germany, Italy, and Japan for the “inhuman barbarism” of the bombing of cities in their military operations, which of course were far smaller. It led Franklin Delano Roosevelt to address an “urgent appeal to every Government which may be in hostilities to publicly affirm its determination that its armed forces shall in no event, and under no circumstances, under- take the bombardment from the air of civilian populations” (quoted in Franklin 2018; reactions to German bombing of Guernica in Spain, Japan in Manchuria, Italy in Ethiopia. No effort to condemn at Nuremberg & Tokyo in view of Allied practice, also McNamara’s acknowledgement to LeMay in The Fog of War, [2003], that if war lost, they would likely be prosecuted as war criminals.). What seemed “inhuman barbarism” when done by the enemy became a matter of “military necessity” when done by the victorious side in the course of the war, despite being done on a far larger and more destructive scale. Such an exemption from legal accountability offered the West de facto justifications for recourse to massive bombing tactics in the Korean War (1950– 1952) and the Vietnam War (1962–1975) that cost several million civilian lives.
In partial acknowledgement of this failure to hold the strong responsible for compliance with international law in a manner equivalent to those formally charged, the American prosecutor at Nuremberg, Justice Jackson, famously declared in his closing statement, “We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.” Robert H. Jackson’s (1945) belief that Nuremberg would generate new standards of international behavior applicable to the victors quickly turned out to be wishful thinking. It is of the essence of being a geopolitical actor to refuse as a matter of principle, the discipline of legal or moral restraint. Each of the states that pre- vailed in World War II subsequently committed acts violating the Nuremberg findings without incurring any serious normative backlash, but worse than this, their wrongdoing in this prior war established precedents that so normalized the behavior as to place outside the orbit of legal accountability.
Often, the complexities, subtleties and secrecy surrounding diplomacy make it virtually impossible to establish the mental state of mind of the perpetrators of Geopolitical Crimes. One notable exception is an exchange on the U.S. news pro- gram, “60 Minutes”, between Lesley Stahl, TV journalist, and Madeline Albright, on 12 May 1996, then the U.S. Secretary of State, on the impact of harsh sanctions imposed on Iraq after the Gulf War. Lesley Stahl asked the American official, “(w)e have heard that half a million children have died. I mean, that’s more children than died in Hiroshima. And, you know, is the price worth it?” and Albright replied “we think the price is worth it.” Although this chilling response was later partially retracted by Albright, it offers a striking example of a high government official endorsing the indiscriminate targeting of civilians by way of a sanctions policy framed to punish the Iraqi regime for its Kuwait attack and as a warning to Iraq and others to remain within its borders in the future of face the geopolitical fury of the United States.
There are, then, two complementary tendencies that bear on my inquiry into the interplay of state crime and world order: the first, is to obscure crimes of state by manipulating the public discourse in misleading ways; Israel has been very effectively done this with respect to the victimization of the Palestinian people in the course of implementing the Zionist project; e.g. persuading the U.S. Government to describe the unlawful Israeli settlements in Occupied Palestine as “unhelpful” rather than “criminal”; the second, is to treat as “crimes” morally and politically distasteful past acts, which were not crimes at the time of their commission, which is my main theme in these remarks, that is, retrospectively criminalizing past behavior. In the first case, the crimes of state are denied or obscured, while in the second instance past governmental wrongdoing is irresponsibly criminalized.
A similar issue is presented by the frequent assertion that indigenous peoples in various settings in the Western Hemisphere and elsewhere were victims of genocide perpetrated by settler communities, generally backed by colonial powers. Again, there is an inevitable normative ambiguity present – the behavior can be properly castigated as “genocide” if this is understood to be a moral and political condemnation, but the implication that such past behavior was also “a crime” in a legal sense is misleading absent an acceptance of natural law thinking based on notions of intrinsic wrong. This would itself be a rather strange jurisprudential move in a modern context where valid international law is based on the consent, or secondarily on the pronouncement of respected civil society organizations..
Nuremberg never directly addressed the criminality of the Holocaust as the most systematic and massive form of genocide out of this respect for “legalism”. It should be remembered that Stalin and Churchill favored summarily executing Nazi war criminals without the ritual of a trial, enabling the moral and political condemnation to be clear and absolute, as well as focused on the core evil without the distracting irrelevance of a long trial. The American view prevailed but at the previously discussed heavy jurisprudential cost of legalizing and normalizing civilian bombing, which had previously been viewed as falling outside the scope of acceptable behavior (see Bruce 2018),
There was a notable progression from strategic bombing to saturation bombing as Allied tactics against Germany intensified in the latter stages of the European theatre of combat. In relation to Japan’s case, this refusal to apply legal standards of accountability to both sides in the war had the momentous side effect of legalizing the atomic bomb for the future, which set the stage for the legalization of nuclear weaponry. (Nuclear weapons are geopolitically legal, while being considered juridically unlawful, at least under most circumstances. (See International Court of Justice, Advisory Opinion, 1996.) This unfortunate byproduct of the war crimes approach was further distorted by the NPT approach, which allows nuclear weapons states to possess, deploy, threaten, and use, while denying even pre-acquisition development options to other sovereign states. (After waiting for disarmament over the course of decades the patience of non-nuclear states and civil society has begun to run out; (See United Nations Treaty on the Prohibition of Nuclear Weapons, 2017, and International Campaign to Abolish Nuclear Weapons [ICAN] Nobel Peace Prize 2017 counter-moves; Geopolitical Crimes of World War II). In this sense, the NPT approach, as supplemented by a geopolitical regime of implementation currently threatening to unleash a war with a Iran, has given geopolitical support to a highly dangerous feature of world order as currently operationalized.
Geopolitical Crimes Arising from World War I’s Peace Diplomacy
As suggested, the Geopolitical Crimes of World War I and II are specified as including an extended conception of war as encompassing “peace diplomacy”, that is, the arrangements imposed on the defeated side after active combat ended. The basic contention is that diplomacy that was deliberately wrongful should be held subject to accountable procedures if responsible for inflicting massive suffering on innocent people and their societies. More specifically, the argument set forth suggest the desirability of adding Geopolitical Crimes to the list of Crimes against Humanity set forth in Article 7 of the Rome Statute (United Nations General Assembly 1998) governing the activities of the ICC.
It seems relevant to ignore chronology and mention the most obvious Geopolitical Crimes of World War II before turning to World War I. As earlier suggested, the most consequential Geopolitical Crime involved the normalization of bombing of civilian populations and cities as exemplified by post-1945 patterns of warfare in Korea, Vietnam and more recently in Iraq, Syria and Yemen; this normalization covered atomic bombs, which without comment also extended the cover of legal- ity to nuclear weapons under the positivist precept that whatever is not explicitly forbidden is permitted; imposed “partition” arrangements for Korea, Vietnam and Germany, disrupting natural and traditional political communities of these countries giving rise to warfare and war-threatening tensions that lasted for decades, and reflecting geopolitical arrangements of convenience that under later Cold War conditions could have led to the outbreak of World War III, Korean War
and Vietnam War. These divided country arrangements were implemented with- out consulting the people affected and ignored what became known as “the inalienable right of self-determination” in the decolonization period.
Turning to the peace diplomacy that followed the ending of World War I, it too created by design severe problems that would haunt the affected populations for generations. Although mindlessly indifferent, given the failure to prohibit such behavior, it is admittedly not responsible to suggest after such a lapse of time that this peace diplomacy was a Geopolitical Crime in any plausible legal sense. However, it is in my view quite reasonable to suggest, even retroactively, that the Allied powers were politically and ethically responsible for the commission of grave Geopolitical Crimes. A similar logic seems applicable to Armenian contentions that Ottoman Turkey was guilty of “genocide” due to its responsibility for the organized massacres of hundreds of thousands of Armenians in 1915. A genocide occurred, as noted by Hitler and the world did nothing to stop it. This distinction between what is unlawful and what is political and ethically wrong is important. In 1915, the word genocide had not yet been invented and no norm of prohibition was formally adopted prior to 1951, making any attempted legal application retroactive in violation of the fundamental principle of criminal justice “no punishment without a prior law”.
And so unlike Albright’s assertion, which is contemporaneous with the events, the World War I allegations are of a political and ethical nature, but with the encouragement that such negative diplomacy be stigmatized by being criminalized. In the context of World War I’s peace diplomacy I would call attention to three major initiatives each of which contributed to the current regional landscape of turmoil, extremism and violence causing massive suffering: the Sykes-Picot Agreement (1916), the Balfour Declaration (1917) and the abolition of the Islamic Caliphate (1924). The first two of these initiatives occurred prior to the ending of World War I but were explicitly incorporated into the peace arrangement imposed on the Middle East. These two colonialist initiatives embedded in the peace diplomacy, did not as such violate prevailing legal norms, nor directly contradict Western political and ethical standards, but seemed imprudent in view of nationalist challenges emanating from the non-West and the wholly disruptive nature of the Zionist project (creating a Jewish state, temporarily disguised as a Jewish “homeland” in a non-Jewish society; at the time of Balfour the Jewish population in Palestine was in the vicinity of 8%).
Kemal Ataturk decreed the abolition of the Caliphate in 1924 as part of his central project of making Turkey a Europeanized secular state along the specific lines of France. Although such an undertaking would have negative reverberations later in Turkey, it would not be reasonable to expect a political leader to anticipate this, and in fact, the secularization of Turkey was consistent with the modernization
norms that prevailed politically and ethically in the West. In actuality, however, Ataturk’s modernization project had a dislocating effect in Turkey that bears comparison with the Zionist impact on Palestine: it represented an attempt from above to impose a secular Europeanized state on a religiously oriented and non-Western multiethnic society that had long existed in Turkey. The Shah of Iran attempted the same sort of social engineering transformation of Iran that also produced a drastic backlash.
In my view the basic Geopolitical Crime committed with respect to the Ottoman Empire involved the imposition of European territorial states on a region that had been previously governed in a loose and largely non-territorial manner. More concretely, the region had for centuries been under the rule of the Ottoman Empire that divided the Arab world into “millets” vested with responsibility for local self- government, based on distinct units reflecting ethnic and religious identities. This system of governance was long largely accepted by inhabitants as “natural” or legitimate political communities, with identities that were local and tribal as well as civilizational and religious, and essentially non-territorial in the sense of the modern state system based on the central juridical idea of territorial sovereignty.
What Sykes-Picot attempted to do was to satisfy the colonial ambitions of Britain and France substituting territorial colonies within fixed international boundaries for Ottoman millets. This meant overriding the preceding natural and established communities by imposing borders and authority structures responsive to colonial priorities (e.g. Britain wanted to secure Palestine so as to be in a better position to protect the Suez Canal and trade routes to India; France wanted to establish Lebanon within borders that would ensure the presence of a Christian majority state in the region subject to its control).
I find it significant that the most influential and stark critiques of this extension of the European state system to the Middle East emphasize the illegitimacy of this element of territoriality. For instance, Ayatollah Khomeini expressed the view that neither territorial European style states nor dynastic monarchies were legitimate forms of political community. He contended that the revolution in Iran was “Islamic” (that is, non-territorial) and not “Iranian” (that is, territorial). Osama Bin Laden in explaining the ethos of his movement challenging the status quo in the Arab world pointed to 80 years of humiliation for Muslims due to the abolition of the Islamic Caliphate. The first slogan after ISIS established its ill-fated caliphate in 2014 was “the end of Sykes-Picot”, exhibiting a historical consciousness hostile to territoriality. It is possible to discount such statements as the voice of Islamic extremists that are not representative of the region, and cannot validly claim to be the voice of the people, which is more accepting of modernity, secularism and territoriality, and the accompaniment of territorial states. At the same time, one notices that these states have not succeeded in establishing any kind of voluntary or natural political community, have confronted recurrent chaos, geopolitical interventions, a series of governing authorities relying on brute force to establish and maintain order. The region has experienced a century of violent conflict, punctuated by periodic regional wars and a series of large-scale military operations, and leading to the expulsion of several hundred thousand Palestinians from their homeland.
One of the worst Geopolitical Crimes involved the coercive fragmentation and victimization of the Palestinian people as a whole. It is little wonder that in the era of decolonization, the establishment of Israel would occasion cycles of resistance and repression with still no end in sight. Surely, Balfour, despite the colonial arrogance of the declaration, could not be held responsible for foreseeing what would unfold, and colonial ambitions were later somewhat moderated by being forced into the mandates system that promised, although vaguely, eventual political independence. As with the Armenian case, what we can learn by looking back a century is that if the Balfour Declaration and its subsequent implementation had been undertaken in today’s post-colonial world it would qualify without question in the sense used here as a Geopolitical Crime, although not from the perspective of ICL.
Similarly, with the third initiative which was a spillover from World War I although distinct from its formal diplomacy. Turkey achieved independence by force of arms under the leadership of Kemal Ataturk, a visionary leader who deter- mined to take Turkey down the path of modernization, which meant secularism, nationalism, industrialization, and statism. This led Ataturk to shift course, and in 1924 abolish the Islamic caliphate that had its administrative center in Istanbul, once again reinforcing the trend away from statelessness in the Ottoman Middle East and towards a statist region organized around the somewhat alien European model of territorial sovereignty.
I am suggesting that these three initiatives constitute the deep roots of the tragedy we currently witness in the Middle East undoubtedly aggravated by the presence of abundant oil reserves vital for the functioning of the world economy. This is not meant to diminish the relevance of more proximate realities that help up grasp the more immediate con- text of the present awful conjuncture of forces in the region. The Cold War, starting with the Truman Doctrine, led to rigidity and confrontation that also produced regime-changing interventions, as in Iran in 1953, protecting foreign investment in the oil industry and also ensuring ideological alignment with the West. These realities underlay the later inducements of geopolitical actors to intervene in the region to protect their access to the vast oil reserves of the Gulf, the concern of the West to stem the tide of political Islam that flowed from the Iranian experience in 1979, and to act in ways that bolstered Israel’s security. The 9/11 attacks, an outgrowth of these earlier developments, further aggravated by internal and external engagements that sought to shape the political future of the region. The Arab Spring of 2011 followed by counterrevolutionary responses have led to the chaos and violence evident in Syria, Yemen, Libya, and Iraq, as well as the kind of repressive regime brought about by the 2013 military coup in Egypt.
Conclusion
I think that so me Geopolitical Crimes are ongoing and others are being initiated to reflect current realities. In. my judgment, the democratic citizenries of the world have strong incentives to oppose their commission. To illustrate this contemporary dimension, I would regard the withdrawal by Trump from the Paris Agreement on Climate Change (2016) or his decertification of the Iran Nuclear Program Agreement (2015) as blatant Geopolitical Crimes that should be so understood and in a more humane world order, would be prohibited, if possible prevented, and if necessary, accordingly punished.
Telford Taylor, one of the American prosecutors at Nuremberg, ends his book comparing Nuremberg with Vietnam with this provocative quote from the French statesman, Georges Clemenceau: “It was worse than a crime it was a mistake.” (Taylor, Nuremberg and Vietnam: An American Tragedy, 1970). What I have been suggesting is that we should criminalize geopolitical mistakes of grave magnitude. In this more normative sense, crimes are far worse than mistakes.
We can no longer afford the occurrence of deliberate choices by representatives of leading governments that should be foreseen as producing grave harm to the human interest in achieving humane societies and a sustainable future for the species. In effect, the vertical dimension of world order needs to become subject to the discipline of international criminal law for the sake of human wellbeing, species survival, and ICL needs to be expanded to include Geopolitical Crimes.
References
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Tags: Balfour Declaration, Crimes against Humanity, Geopolitical Crimes, international criminal law, Peace Diplomacy, Versailles
Global Justice in the 21st Century 
GEOPOLITICAL CRIMES: A REVOLUTIONARY PROPOSAL
23 Jul[Prefatory Note: The essay below is a modified version of the 2018 Annual Lecture of the International State Crime Initiative (ISCI) of Queen Mary’s University London, given on March 22 of that year. Its original title was “Geopolitical Crimes: A Preliminary Jurisprudential Proposal.” The text of the lecture has been further revised since publication in the Spring 2019 issue of the Journal of State Crime. Its major premise is that international criminal law has developed a framework for judging the criminal conduct of states with respect to armed conflict and in the relations of state/society relations, but is silent about even the most severe crimes of diplomacy. It is these ‘geopolitical crimes’ that are more responsible for inflicting mass suffering on civilian populations than are most of the forms of international behavior currently criminalized. I am aware that criminalizing acts of diplomacy is a revolutionary idea, but no less for that, deserving of commentary and debate.]
GEOPOLITICAL CRIMES: A REVOLUTIONARY PROPOSAL
Points of Departure
When we think about international relations in a general way we typically presuppose a state-centric world order. I find this misleading. Actually, there are two intersecting and overlapping systems of rules and diplomatic protocols that are operative in international relations: a juridicalsystem linking sovereign states on the basis of equality before the law; and a geopoliticalsystem linking dominant states regionally and globally with other states on the basis of inequalities in power, scale, wealth and status. It is convenient to consider the juridical system as horizontal and the geopolitical system as vertical so long as this distinction is understood as a metaphor to distinguish hierarchical from non-hierarchical relations that are operative in international politics.
The United Nations (UN) embodies this structural dualism that pervades world order, and is hierarchical: the subordinate horizontal organizational axis based on juridical equality as exhibited by membership procedures and by the recommendatory authority of the General Assembly. This compares to the supervening vertical axis as embodied in the Security Council in which the permanent membership of the five states considered victors in World War II enjoy a right of veto, and possess an exclusive authority vested in the Security Council to make decisions that are theoretically enforceable.
My purpose in these remarks is to extend the notion of international state crime from its familiar horizontal axis, and suggest the significance of state crime on the vertical axis, which I will call “Geopolitical Crime”. I believe that this category of criminality has been “overlooked” in international criminal law (ICL) despite its responsibility for massive human suffering, and directly linked to some of the most serious deficiencies and unresolved turmoil in contemporary world order. Perhaps, overlooked is not the best word to describe the malign neglect. Maybe “blocked” is more accurate, as consistent with successful efforts of geopolitical actors through the centuries to evade all forms of accountability under international law for state crime unless adversary leaders are. targeted by the winners in major wars.
Of course, I am mindful of the fact that Geopolitical Crimes have not yet been formally or conceptually delimited, and are not even conceptually delimited in aspirational language at the present time, and are likely to never be accepted by the current breed of juridical gatekeepers as a valid legal category. Nevertheless, I believe that the identification and articulation of Geopolitical Crime is of pedagogical value in understanding the causal antecedents of some of the worst features of global politics, as well as of normative value in identifying what kinds of behavior in certain diplomatic settings are likely to produce future harm and by so identifying, encourage more mindful statecraft in the future.
At the outset it needs to be appreciated that international criminal law (ICL) as part of the horizontal/vertical normative mix is currently a very flawed system of law: in such crucial areas as humanitarian intervention, criminal accountability, human rights and the International Criminal Court (ICC), the application of ICL exhibits double standards, which has been producing a pattern of increasing accountability for the weak and vulnerable, and almost total impunity for the rich and geopolitically powerful and politically insulated. The result is a form of “liberal legality” that is structure blind when it comes to holding geopolitical actors to the same standards of criminal accountability as other sovereign states.
My intention is to put forward in an exploratory and tentative spirit a somewhat comprehensive proposal to imagine and delimit two closely related behavior patterns that deserve to be properly classified as Crimes Against Humanity, but are not now so treated. I am provisionally calling these “crimes” “Geopolitical Crimes of War” and “Geopolitical Crimes of Peace”.
My purpose is to identify patterns of deliberate behavior by leading governments in global or regional contexts that inflict severe harm on the individual and collective wellbeing of people, and do so knowingly, willfully, or with extreme negligence, especially in the contexts of war and post-war “peace diplomacy”. Actually, I would be receptive to suggestions of a more suitable label for these patterns of behavior than “Geopolitical Crime”, but for now will stick with this terminology. These proposed “crimes” have yet to be acknowledged as such, much less formally prohibited by treaty or practice. In this sense, this proposal for their inclusion in a jurisprudence fit for humanity is ‘revolutionary.’
On one level, I realize that I may be casting myself in the role of a latter day Don Quixote tilting at the windmills of an ideal legal order rather as did the erstwhile nobleman of La Mancha as he yearned for the gallantry of knights of old. I am sensitive to the fact that delimiting the behavior of leading states as a Geopolitical Crime may strike many persons as a wildly romantic or utopian non-starter, if not seen more destructively, as an effort to subvert the authority of liberal legality by highlighting its jurisprudential deficiencies.
My central critique of ICL is its grant of a free pass or exemption to geopolitical actors and their close allies, which has caused so much harm in the past, continuing into the present, and threatens to do even greater harm in the future. It can be argued that even if this is the case, why call attention to the weakness of ICL by proposing a form of criminalization that is unlikely to ever happen, and if it does, will never be implemented. The experience of the ICC makes these low expectations seem realistic. Nevertheless, while aware of these concerns, I believe there are several reasons that make it worthwhile to delimit Geopolitical Crimes.
First of all, to discuss what I propose to identify as “Geopolitical Crimes” by pointing to historical examples helps us consider why many things have gone so badly wrong in international relations over the course of the last hundred years at the cost of millions of lives. I am well aware that counterfactual narratives of history are inevitably problematic as we can never know what might have happened had we chosen “the road not taken” to recall the motif of Robert Frost’s famous poem.
Secondly, aspirational norms of ICL can become meaningful for civil society actors, even if ignored or rejected by the diplomacy of geopolitical actors (e.g. BAN Treaty – UN Treaty on the Prohibition of Nuclear Weapons, New York, United Nations General Assembly 2017). Delimiting Geopolitical Crimes seeks to fill serious world order and international law gaps created by destructive and intentional policies and practices of geopolitical actors. Raising an awareness of such gaps also helps us understand the degree to which the UN, including its subsidiary organs, is similarly constrained when seeking to fulfil its substantive undertakings as set forth in the Preamble to the UN Charter.
Indeed, civil society tribunals, ever since the Russell Tribunal (International War Crimes Tribunal, Stockholm/Roskilde, 1967) have examined allegations of unacknowledged war crimes of geopolitical actors, including Crimes Against Humanity, by the U.S. in Vietnam, back in 1966 to 1967. Such an undertaking was dismissed and denigrated at the time by mainstream thinking as an absurdly misguided challenge to the behavior of a geopolitical giant in the midst of an aggressive war. In fact, the Vietnam War was the kind of war that international criminal law in the aftermath of World War II had no trouble classifying as a Crime Against Peace at the Nuremberg Tribunal when addressing the behavior of a defeated Axis power.
Despite these efforts to discredit the Russell Tribunal its inquiries and testimonies produced valuable commentaries on the Vietnam War that would not otherwise be available to us. In this regard, in a manner similar to the government-organized war crimes tribunals after World War II, the main value of such civil society initiatives is to narrate on the basis of substantial evidence the wrongdoings of the defendants, whose punishment is of secondary importance, despite these individuals having done terrible things on behalf of a particular state.
I was involved in the Iraq War Tribunal that in 2005 brought to Istanbul before a jury composed of internationally known. moral authority figures, Iraqi testimonies of combat experiences and an array of international experts to record the violations of international law and of the UN Charter on the part of the United States and United Kingdom. In the end, in a manner no other institutional actor could do, this civil society initiative documented and supplied moral and legal reasoning as to why this war should be regarded as a criminal enterprise.
Part of my argument here is that the failure to delimit “Geopolitical Crimes” deprives us of a truer understanding of what went wrong and was wrong, particularly in the course of and the aftermath of World War I and II, and more recently in the responses to the 9/11 attacks on the United States. The wrongfulness in these instances arises from the manner in which the war and peace diplomacy was used to demonize the adversary and exonerate the victor, or in the 9/11 instance, to embolden a wounded and traumatized superpower to take steps previously treated as prohibited by international law. Considering Geopolitical Crimes is also a matter of attentiveness to the historical antecedents of conflict and political extremism that are habitually misrepresented by propaganda and one-sided interpretations, if treated at all.
The third justification for this line of prescriptive thinking is essentially pedagogical to influence normative discourse in relation to war and peace, suggesting that to ignore geopolitical wrongdoing is to overlook one of the major causes of conflict, chaos, injustice and extremism in the world order experience of the last hundred or more years. Jurisprudential innovations of the kind recommended here has taken place in the past. Raphael Lemkin is often heralded as the person who single-handedly invented the word “genocide” in 1944, and finally produced its acceptance by the powers that be, leading to its incorporation in the authoritative Convention on the Prevention and Punishment of the Crime of Genocide in New York (United Nations General Assembly 1951).
In the course of the Vietnam War, in response to the conduct of environmental warfare, a biologist at Yale, Arthur Galston, came up with the term “ecocide”, an analogue to genocide, but in relation to natural surroundings. I later drafted a proposed Ecocide Convention that I hoped at the time could and should become part of international criminal law (see Falk 1973). Unfortunately, unlike genocide, ecocide has not yet been incorporated into ICL, at least never at the inter-governmental level, although civil society actors are active in promoting ecocide as an international crime that should be implemented by enforcement. In this regard, the idea of ecocide as a crime has been widely accepted in several influential civil society settings, and has become part of the progressive public discourse relating human activity to environmental harm.
And fourth and finally, the articulation of geopolitical crimes, as crimes, might induce greater care on the part of some policy planners and governmental leaders in avoiding harmful practices in the future, even if such decision makers continue to deny any legal obligation to do so. The nuclear taboo is an example of a tradition of non-use of nuclear weapons that in part stems from the horrific realization of the atomic antecedent of these weapons in the closing days of World War II. The normative discourse reinforced this taboo, most notably by General Assembly Resolutions (United Nations General Assembly 1946), the Shimoda Case decided by a (Tokyo District Court 1962) and by a 1996 Advisory Opinion of the International Court of Justice (International Criminal Court 1996). We might describe such a taboo as “informal law” that if backed by practical wisdom can lead to impressive levels of compliance, sometimes higher than what is achieved by formal law, even in a treaty form, especially if compliance is geopolitically inconvenient (Article VI, United Nations Treaty on the Non-Proliferation of Nuclear Weapons, New York, United Nations 1968). Beyond this, if such taboos are violated, the perpetrators might appropriately be deemed responsible for criminal behavior if what is done is widely regarded as Geopolitical Crimes, which might have the effect of expanding the jurisprudential and pedagogical influence of civil society tribunals.
Delimiting “Geopolitical Crimes”: Jurisprudential Clarifications and Historical Illustrations
It is appropriate to consider Geopolitical Crimes from a jurisprudential perspective, and then provide illustrative cases. I will choose the impact Geopolical Crimes on the practices and policies imposed on the Middle East in the peace diplomacy of the victors after World War I. I will also make brief reference to the Geopolitical Crimes of War and of Peace associated with the conduct of World War II and the conditions of peace established subsequent to the war, especially the ambiguous legacies of the Nuremberg and Tokyo War Crimes Trials. I would also point to early initiatives of the United Nations, which bears serious unacknowledged responsibility for the ordeals of the Palestinian people and the failure over the course of decades to find a sustainable peace based on the respective rights of these two long embattled peoples.
These various historical circumstances present complicated and controversial contexts, and as I am suggesting, my commentaries at this point are more intended as a means to initiate discussion than a claim to achieve an authoritative interpretation of such multiply contested and layered historical events.
An alternative illustrative situation that qualifies as geopolitical criminality could have been provided by offering a critical account of punitive restrictions imposed on German sovereignty by the Versailles Treaty in the form of reparations and demilitarization. It is arguable that this diplomacy constituted Geopolitical Crimes of gross negligence contributing to the rise of Hitler and Nazism. It is significant, suggesting an informal learning process, that peace diplomacy after World War II deliberately avoided the imposition of a punitive peace upon the defeated Axis Powers, although these defeated states and their leaders were guilty of a far worse path of criminality than what the countries defeated in World War I had done.
More recently, in the context of the First Gulf War in 1992, the victorious coalition again imposed a punitive peace on Iraq in the form of economic sanctions that pro- duced catastrophic predictable losses of civilian lives, including among children (see Beres 1992). Why these punitive and indiscriminate sanctions were imposed remains not entirely clear. Partly it reflected a substitute or compensatory course of action for the failure of the victorious coalition to pursue all out political victory of the sort that ended both world wars. The post-war sanctions imposed on Iraq can be thought of as compromise between pushing for regime change in Baghdad and the grudging acceptance of the government of Saddam Hussein as legitimate. The Geopolitical Crime arises from the failure to take steps to avoid causing suffering to the civilian population of Iraq. To target civilians is an instance of state terror that should be treated as an international crime.
Let me first try to describe more adequately what I mean by “Geopolitical Crimes”. My reference is to deliberate or grossly negligent undertakings by leading governments representing sovereign states or international institutions that violate core norms of international law, diplomatic customary practices and the protocols of international relations, and fundamental principles of international ethics. Often, the most serious harm done by these violations results from longer term dislocations that should reasonably have been foreseen. If this is so, it provides a rationale for imposing legal responsibility as reasonable and appropriate, especially with an eye towards inhibiting the repetition of comparable behavior in the future. It could be thought of as ‘a precautionary principle’ for diplomats. For example, if the imposition of “punitive peace” had been rendered unlawful in light of the World War I experience it might have exerted some deterrent impact on imposed harsh conditions on Iraq in 1992.
Historically, there is a tendency for the victors in major wars to have opportunities to alter international relations according to their values, interests and fears. This was certainly true of the outcomes of the major wars involving Europe (see Beres 1992). However, this is not always the case. Sometimes Geopolitical Crimes have immediate, intended and foreseeable effects. Two obvious recent examples: the 2017 blockade and related steps coercively imposed on Qatar in response to its failure to meet the 13 Demands made by a coalition of members of the Gulf Cooperation Council plus Egypt (see Falk 2018). The Geopolitical Crime present centers on the unlawful intrusion on Qatari sovereignty, with intended harm to public and private sector activities, as associated with the impact of the 13 unreasonable demands as reinforced by administrative decrees and blockades.
My second example is President Trump’s thrashing (Borger et al. 2018) and subsequent repudiation of the P5 + 1 Agreement on Iran’s Nuclear Program (Joint Comprehensive Plan of Action 2015), a course of action that makes a destructive and unlawful war in the Middle East far more likely, and its threat, a certainty.
It is, of course, entirely reasonable to argue that some alleged “Geopolitical Crimes” produced bad outcomes that could not have been reasonably anticipated or that the political actors involved had been motivated at the time by good faith, conventional wisdom and political realism. One important context for geopolitical criminality, as earlier suggested, is in post-conflict peace diplomacy where the victor calls the shots.
For instance, at the Nuremberg and Tokyo trials of surviving German and Japanese military and political leaders, the criminal activities of the victors were exempted from scrutiny, and could not be mentioned by the defense, however serious and relevant. In partial deference to such a constraint on prosecution, German and Japanese defendants were not charged with crimes that the Allied countries had committed. This selectivity was extensively critiqued as “Victors’ Justice” (see Minear 1971). More specifically, in light of the Allied “saturation” bombing of German cities, the German, Italian and Japanese bombing of civilian populations was not among the crimes alleged. Such forbearance in the manner of victors’ justice not only exempted the practice from accountability in the war crimes tribunals, it unwittingly normalized for the future saturation bombing as beyond the reach of international law.
This double effect was particularly striking in light of the pre-war denunciations of
Germany, Italy, and Japan for the “inhuman barbarism” of the bombing of cities in their military operations, which of course were far smaller. It led Franklin Delano Roosevelt to address an “urgent appeal to every Government which may be in hostilities to publicly affirm its determination that its armed forces shall in no event, and under no circumstances, under- take the bombardment from the air of civilian populations” (quoted in Franklin 2018; reactions to German bombing of Guernica in Spain, Japan in Manchuria, Italy in Ethiopia. No effort to condemn at Nuremberg & Tokyo in view of Allied practice, also McNamara’s acknowledgement to LeMay in The Fog of War, [2003], that if war lost, they would likely be prosecuted as war criminals.). What seemed “inhuman barbarism” when done by the enemy became a matter of “military necessity” when done by the victorious side in the course of the war, despite being done on a far larger and more destructive scale. Such an exemption from legal accountability offered the West de facto justifications for recourse to massive bombing tactics in the Korean War (1950– 1952) and the Vietnam War (1962–1975) that cost several million civilian lives.
In partial acknowledgement of this failure to hold the strong responsible for compliance with international law in a manner equivalent to those formally charged, the American prosecutor at Nuremberg, Justice Jackson, famously declared in his closing statement, “We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.” Robert H. Jackson’s (1945) belief that Nuremberg would generate new standards of international behavior applicable to the victors quickly turned out to be wishful thinking. It is of the essence of being a geopolitical actor to refuse as a matter of principle, the discipline of legal or moral restraint. Each of the states that pre- vailed in World War II subsequently committed acts violating the Nuremberg findings without incurring any serious normative backlash, but worse than this, their wrongdoing in this prior war established precedents that so normalized the behavior as to place outside the orbit of legal accountability.
Often, the complexities, subtleties and secrecy surrounding diplomacy make it virtually impossible to establish the mental state of mind of the perpetrators of Geopolitical Crimes. One notable exception is an exchange on the U.S. news pro- gram, “60 Minutes”, between Lesley Stahl, TV journalist, and Madeline Albright, on 12 May 1996, then the U.S. Secretary of State, on the impact of harsh sanctions imposed on Iraq after the Gulf War. Lesley Stahl asked the American official, “(w)e have heard that half a million children have died. I mean, that’s more children than died in Hiroshima. And, you know, is the price worth it?” and Albright replied “we think the price is worth it.” Although this chilling response was later partially retracted by Albright, it offers a striking example of a high government official endorsing the indiscriminate targeting of civilians by way of a sanctions policy framed to punish the Iraqi regime for its Kuwait attack and as a warning to Iraq and others to remain within its borders in the future of face the geopolitical fury of the United States.
There are, then, two complementary tendencies that bear on my inquiry into the interplay of state crime and world order: the first, is to obscure crimes of state by manipulating the public discourse in misleading ways; Israel has been very effectively done this with respect to the victimization of the Palestinian people in the course of implementing the Zionist project; e.g. persuading the U.S. Government to describe the unlawful Israeli settlements in Occupied Palestine as “unhelpful” rather than “criminal”; the second, is to treat as “crimes” morally and politically distasteful past acts, which were not crimes at the time of their commission, which is my main theme in these remarks, that is, retrospectively criminalizing past behavior. In the first case, the crimes of state are denied or obscured, while in the second instance past governmental wrongdoing is irresponsibly criminalized.
A similar issue is presented by the frequent assertion that indigenous peoples in various settings in the Western Hemisphere and elsewhere were victims of genocide perpetrated by settler communities, generally backed by colonial powers. Again, there is an inevitable normative ambiguity present – the behavior can be properly castigated as “genocide” if this is understood to be a moral and political condemnation, but the implication that such past behavior was also “a crime” in a legal sense is misleading absent an acceptance of natural law thinking based on notions of intrinsic wrong. This would itself be a rather strange jurisprudential move in a modern context where valid international law is based on the consent, or secondarily on the pronouncement of respected civil society organizations..
Nuremberg never directly addressed the criminality of the Holocaust as the most systematic and massive form of genocide out of this respect for “legalism”. It should be remembered that Stalin and Churchill favored summarily executing Nazi war criminals without the ritual of a trial, enabling the moral and political condemnation to be clear and absolute, as well as focused on the core evil without the distracting irrelevance of a long trial. The American view prevailed but at the previously discussed heavy jurisprudential cost of legalizing and normalizing civilian bombing, which had previously been viewed as falling outside the scope of acceptable behavior (see Bruce 2018),
There was a notable progression from strategic bombing to saturation bombing as Allied tactics against Germany intensified in the latter stages of the European theatre of combat. In relation to Japan’s case, this refusal to apply legal standards of accountability to both sides in the war had the momentous side effect of legalizing the atomic bomb for the future, which set the stage for the legalization of nuclear weaponry. (Nuclear weapons are geopolitically legal, while being considered juridically unlawful, at least under most circumstances. (See International Court of Justice, Advisory Opinion, 1996.) This unfortunate byproduct of the war crimes approach was further distorted by the NPT approach, which allows nuclear weapons states to possess, deploy, threaten, and use, while denying even pre-acquisition development options to other sovereign states. (After waiting for disarmament over the course of decades the patience of non-nuclear states and civil society has begun to run out; (See United Nations Treaty on the Prohibition of Nuclear Weapons, 2017, and International Campaign to Abolish Nuclear Weapons [ICAN] Nobel Peace Prize 2017 counter-moves; Geopolitical Crimes of World War II). In this sense, the NPT approach, as supplemented by a geopolitical regime of implementation currently threatening to unleash a war with a Iran, has given geopolitical support to a highly dangerous feature of world order as currently operationalized.
Geopolitical Crimes Arising from World War I’s Peace Diplomacy
As suggested, the Geopolitical Crimes of World War I and II are specified as including an extended conception of war as encompassing “peace diplomacy”, that is, the arrangements imposed on the defeated side after active combat ended. The basic contention is that diplomacy that was deliberately wrongful should be held subject to accountable procedures if responsible for inflicting massive suffering on innocent people and their societies. More specifically, the argument set forth suggest the desirability of adding Geopolitical Crimes to the list of Crimes against Humanity set forth in Article 7 of the Rome Statute (United Nations General Assembly 1998) governing the activities of the ICC.
It seems relevant to ignore chronology and mention the most obvious Geopolitical Crimes of World War II before turning to World War I. As earlier suggested, the most consequential Geopolitical Crime involved the normalization of bombing of civilian populations and cities as exemplified by post-1945 patterns of warfare in Korea, Vietnam and more recently in Iraq, Syria and Yemen; this normalization covered atomic bombs, which without comment also extended the cover of legal- ity to nuclear weapons under the positivist precept that whatever is not explicitly forbidden is permitted; imposed “partition” arrangements for Korea, Vietnam and Germany, disrupting natural and traditional political communities of these countries giving rise to warfare and war-threatening tensions that lasted for decades, and reflecting geopolitical arrangements of convenience that under later Cold War conditions could have led to the outbreak of World War III, Korean War
and Vietnam War. These divided country arrangements were implemented with- out consulting the people affected and ignored what became known as “the inalienable right of self-determination” in the decolonization period.
Turning to the peace diplomacy that followed the ending of World War I, it too created by design severe problems that would haunt the affected populations for generations. Although mindlessly indifferent, given the failure to prohibit such behavior, it is admittedly not responsible to suggest after such a lapse of time that this peace diplomacy was a Geopolitical Crime in any plausible legal sense. However, it is in my view quite reasonable to suggest, even retroactively, that the Allied powers were politically and ethically responsible for the commission of grave Geopolitical Crimes. A similar logic seems applicable to Armenian contentions that Ottoman Turkey was guilty of “genocide” due to its responsibility for the organized massacres of hundreds of thousands of Armenians in 1915. A genocide occurred, as noted by Hitler and the world did nothing to stop it. This distinction between what is unlawful and what is political and ethically wrong is important. In 1915, the word genocide had not yet been invented and no norm of prohibition was formally adopted prior to 1951, making any attempted legal application retroactive in violation of the fundamental principle of criminal justice “no punishment without a prior law”.
And so unlike Albright’s assertion, which is contemporaneous with the events, the World War I allegations are of a political and ethical nature, but with the encouragement that such negative diplomacy be stigmatized by being criminalized. In the context of World War I’s peace diplomacy I would call attention to three major initiatives each of which contributed to the current regional landscape of turmoil, extremism and violence causing massive suffering: the Sykes-Picot Agreement (1916), the Balfour Declaration (1917) and the abolition of the Islamic Caliphate (1924). The first two of these initiatives occurred prior to the ending of World War I but were explicitly incorporated into the peace arrangement imposed on the Middle East. These two colonialist initiatives embedded in the peace diplomacy, did not as such violate prevailing legal norms, nor directly contradict Western political and ethical standards, but seemed imprudent in view of nationalist challenges emanating from the non-West and the wholly disruptive nature of the Zionist project (creating a Jewish state, temporarily disguised as a Jewish “homeland” in a non-Jewish society; at the time of Balfour the Jewish population in Palestine was in the vicinity of 8%).
Kemal Ataturk decreed the abolition of the Caliphate in 1924 as part of his central project of making Turkey a Europeanized secular state along the specific lines of France. Although such an undertaking would have negative reverberations later in Turkey, it would not be reasonable to expect a political leader to anticipate this, and in fact, the secularization of Turkey was consistent with the modernization
norms that prevailed politically and ethically in the West. In actuality, however, Ataturk’s modernization project had a dislocating effect in Turkey that bears comparison with the Zionist impact on Palestine: it represented an attempt from above to impose a secular Europeanized state on a religiously oriented and non-Western multiethnic society that had long existed in Turkey. The Shah of Iran attempted the same sort of social engineering transformation of Iran that also produced a drastic backlash.
In my view the basic Geopolitical Crime committed with respect to the Ottoman Empire involved the imposition of European territorial states on a region that had been previously governed in a loose and largely non-territorial manner. More concretely, the region had for centuries been under the rule of the Ottoman Empire that divided the Arab world into “millets” vested with responsibility for local self- government, based on distinct units reflecting ethnic and religious identities. This system of governance was long largely accepted by inhabitants as “natural” or legitimate political communities, with identities that were local and tribal as well as civilizational and religious, and essentially non-territorial in the sense of the modern state system based on the central juridical idea of territorial sovereignty.
What Sykes-Picot attempted to do was to satisfy the colonial ambitions of Britain and France substituting territorial colonies within fixed international boundaries for Ottoman millets. This meant overriding the preceding natural and established communities by imposing borders and authority structures responsive to colonial priorities (e.g. Britain wanted to secure Palestine so as to be in a better position to protect the Suez Canal and trade routes to India; France wanted to establish Lebanon within borders that would ensure the presence of a Christian majority state in the region subject to its control).
I find it significant that the most influential and stark critiques of this extension of the European state system to the Middle East emphasize the illegitimacy of this element of territoriality. For instance, Ayatollah Khomeini expressed the view that neither territorial European style states nor dynastic monarchies were legitimate forms of political community. He contended that the revolution in Iran was “Islamic” (that is, non-territorial) and not “Iranian” (that is, territorial). Osama Bin Laden in explaining the ethos of his movement challenging the status quo in the Arab world pointed to 80 years of humiliation for Muslims due to the abolition of the Islamic Caliphate. The first slogan after ISIS established its ill-fated caliphate in 2014 was “the end of Sykes-Picot”, exhibiting a historical consciousness hostile to territoriality. It is possible to discount such statements as the voice of Islamic extremists that are not representative of the region, and cannot validly claim to be the voice of the people, which is more accepting of modernity, secularism and territoriality, and the accompaniment of territorial states. At the same time, one notices that these states have not succeeded in establishing any kind of voluntary or natural political community, have confronted recurrent chaos, geopolitical interventions, a series of governing authorities relying on brute force to establish and maintain order. The region has experienced a century of violent conflict, punctuated by periodic regional wars and a series of large-scale military operations, and leading to the expulsion of several hundred thousand Palestinians from their homeland.
One of the worst Geopolitical Crimes involved the coercive fragmentation and victimization of the Palestinian people as a whole. It is little wonder that in the era of decolonization, the establishment of Israel would occasion cycles of resistance and repression with still no end in sight. Surely, Balfour, despite the colonial arrogance of the declaration, could not be held responsible for foreseeing what would unfold, and colonial ambitions were later somewhat moderated by being forced into the mandates system that promised, although vaguely, eventual political independence. As with the Armenian case, what we can learn by looking back a century is that if the Balfour Declaration and its subsequent implementation had been undertaken in today’s post-colonial world it would qualify without question in the sense used here as a Geopolitical Crime, although not from the perspective of ICL.
Similarly, with the third initiative which was a spillover from World War I although distinct from its formal diplomacy. Turkey achieved independence by force of arms under the leadership of Kemal Ataturk, a visionary leader who deter- mined to take Turkey down the path of modernization, which meant secularism, nationalism, industrialization, and statism. This led Ataturk to shift course, and in 1924 abolish the Islamic caliphate that had its administrative center in Istanbul, once again reinforcing the trend away from statelessness in the Ottoman Middle East and towards a statist region organized around the somewhat alien European model of territorial sovereignty.
I am suggesting that these three initiatives constitute the deep roots of the tragedy we currently witness in the Middle East undoubtedly aggravated by the presence of abundant oil reserves vital for the functioning of the world economy. This is not meant to diminish the relevance of more proximate realities that help up grasp the more immediate con- text of the present awful conjuncture of forces in the region. The Cold War, starting with the Truman Doctrine, led to rigidity and confrontation that also produced regime-changing interventions, as in Iran in 1953, protecting foreign investment in the oil industry and also ensuring ideological alignment with the West. These realities underlay the later inducements of geopolitical actors to intervene in the region to protect their access to the vast oil reserves of the Gulf, the concern of the West to stem the tide of political Islam that flowed from the Iranian experience in 1979, and to act in ways that bolstered Israel’s security. The 9/11 attacks, an outgrowth of these earlier developments, further aggravated by internal and external engagements that sought to shape the political future of the region. The Arab Spring of 2011 followed by counterrevolutionary responses have led to the chaos and violence evident in Syria, Yemen, Libya, and Iraq, as well as the kind of repressive regime brought about by the 2013 military coup in Egypt.
Conclusion
I think that so me Geopolitical Crimes are ongoing and others are being initiated to reflect current realities. In. my judgment, the democratic citizenries of the world have strong incentives to oppose their commission. To illustrate this contemporary dimension, I would regard the withdrawal by Trump from the Paris Agreement on Climate Change (2016) or his decertification of the Iran Nuclear Program Agreement (2015) as blatant Geopolitical Crimes that should be so understood and in a more humane world order, would be prohibited, if possible prevented, and if necessary, accordingly punished.
Telford Taylor, one of the American prosecutors at Nuremberg, ends his book comparing Nuremberg with Vietnam with this provocative quote from the French statesman, Georges Clemenceau: “It was worse than a crime it was a mistake.” (Taylor, Nuremberg and Vietnam: An American Tragedy, 1970). What I have been suggesting is that we should criminalize geopolitical mistakes of grave magnitude. In this more normative sense, crimes are far worse than mistakes.
We can no longer afford the occurrence of deliberate choices by representatives of leading governments that should be foreseen as producing grave harm to the human interest in achieving humane societies and a sustainable future for the species. In effect, the vertical dimension of world order needs to become subject to the discipline of international criminal law for the sake of human wellbeing, species survival, and ICL needs to be expanded to include Geopolitical Crimes.
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Tags: Balfour Declaration, Crimes against Humanity, Geopolitical Crimes, international criminal law, Peace Diplomacy, Versailles