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Law & War: A Comparison of Vietam and Indochina

[Prefatory Note: The post below in the text of my foreword to an exceptionally valuable comparison of conflicts: Vietnam and Arab-Israeli. These two regions have preoccupied me throughout my professional career and in the course of my life as an engaged citizen. The book, just published by Michigan University Press, is the source of insight, as well, to the evolution of international law relative to such conflicts.]

Making Endless War: The Vietnam and Arab-Israeli Conflicts in the History of International Law

Brian Cuddy and Victor Kattan, Editors, 2023.

How International Law Evolves: Norms, Precedents, and Geopolitics

Prologue

We should understand that this volume devoted to the relevance of international law to these two geographically distinct war zones in the Middle East and Southeast Asia in the period after World War II is a very distinctive undertaking. I am not familiar with any similar search for comparisons and connections, either in relation to the Indochina or Arab-Israeli conflicts, with respect to lawmaking interactions and potentialities. What is notable about this inquiry is that it considers the interaction between regional scale conflicts to be both a source of new norms of international law and occasions for evasions and justifications of existing norms.

My point of departure is to take note of the motivation of the lead political actors in both conflict configurations to evade the constraints on the use of force imposed by the UN Charter, a constitutional framework for international law drafted under the primary influence of World War II, achieving a special urgency after the use of atomic bombs against Japanese cities. This influence expressed itself by the adoption of a war prevention rationale powerfully set forth in the opening words of the Charter Preamble, “…to save succeeding generations from the scourge of war.” This language was a response not only to the devastation associated with the thus concluded war with its 60 million deaths, but to the fear that a future war of similar or greater proportions would bring even more catastrophic results for the entire world. The Charter norms on the use of force were designed to be very constraining, suggesting that recourse to force by states was to be legal only if undertaken in self-defense against a prior armed attack [Articles 2(4), 51 of the UN Charter] or in response to a decision authorizing the use of force by the Security Council. As the editors’ introduction to the volume suggests, the Charter carried forward the transformational ambitions to prohibit international war-making and coercive diplomacy by constraining legally mandated recourses to international uses of force as comprehensibly as possible. It should be understood that these ambitions were always tied to the self-restraint of and harmony among the five permanent members of the Security Council who enjoyed a right of veto, which effectively exempted them from an obligatory connection to the international legal norms governing force set forth in the Charter. Even if the General Assembly attempted to fill this gap between international law and this disturbing geopolitical privilege its authority was constitutionally limited to making ‘recommendations,’ lacking in obligatory force.

The geopolitical condition of fragile and always partial harmony that prevailed in 1945 as a result of the recent victory over fascism achieved by the Allied Powers did not last very long. The UN was established with some hope, although contested by political realists from its inception, that the combination of these restraining norms and the collective security mechanisms of the Security Council could ensure a peaceful world. Such idealistic expectations were challenged by events. First came the Korean War (1950-53) and then by the 1956 Suez Crisis and Operation, and above all by the outbreak of the Cold War that ruptured forever the pious hope a wartime alliance could be transformed into a peacemaking coalition. Nevertheless, until the decade of the 1960s there remained a superficial attachment by the geopolitical antagonists to the UN Charter framework constraining aggressive war-making as the focus continued to be on the avoidance of a third world war or any disregard of the taboo prohibiting recourse to nuclear weaponry.

This changed in the decade of the 1960s. It became clear that the victors in World War II were faced with significant geopolitical challenges and possessed strategic ambitions that could not be satisfied by adhering to the Charter norms. This was made apparent in the Indochina War, especially its Vietnam central arena. The Charter notion of self-defense was not applicable nor would the American extension of the war to North Vietnam in 1965 have enabled the Security Council to restore peace due to the veto power possessed by the geopolitical antagonists, the Soviet Union, China, and the United States. For these reasons the Indochina War, despite its scale and level of destruction, was undertaken without heeding or seriously engaging the UN framework or contemporary international law.[1] The U.S. Government, in particular, issued elaborate documentary justifications for the forcible actions undertaken by invoking international law. Its legal rationalizations were partisan in nature and one-sided, and as such unconvincing to the scholarly community of international jurists.

As well, both in Indochina and the Middle East the warfare that resulted was not between political entities of symmetric technological capabilities and tactics. International law had been evolved to address wars fought between sovereign states of roughly equivalent technological capabilities, and was concerned with limiting and regulating war rather than outlawing it. The experience of World War II convinced the victors that there was a gap in the legal framework concerning the protection of civilians living under military occupation, captured prisoners of war, and the treatment of wounded soldiers on the battlefield. This realization resulted in the negotiation of the four Geneva Conventions of 1949, a new corpus of law that became known as ‘international humanitarian law.’

Yet these Geneva Conventions were still preoccupied with wars between sovereign states. What was shown by the Indochina and Middle East wars of the 1960s was the importance of extending international humanitarian law (IHL) to conditions of sustained warfare within sovereign states, especially when magnified in intensity by external interventions, proxy wars, and geopolitical alignments. Acknowledging the prevalence of this new type of violent conflict gave rise to the two 1977 Geneva Protocols that were deemed supplemental to the 1949 treaties. In particular, Protocol I dealing with the Protection of Victims in International Conflicts was a tricky area for international law as it challenged the sovereign rights of the territorial government, and even trickier for the United States as it explicitly extended the protection of international humanitarian law (IHL) to armed conflicts in which a people are fighting against colonial domination, alien occupation or racist regimes.[2] This meant that Protocol I applied to foreign interventions in domestic armed conflicts that were struggles over the control of the state. Protocol II was somewhat less controversial as it extended IHL to non-international conflicts and did not have any bearing on interventionary diplomacy, although it did seek IHL accountability for purely internal wars, purporting to put legal limits on previously unlimited territorial sovereign rights.

By considering such conflicts as entitled to international protection it was perceived as weakening the sovereign authority of states to deal with insurgent opposition movements without being subject to international legal accountability. This resistance to the internationalization of anti-colonial struggles pertains directly to the Vietnam and Palestinian experiences. Indeed, the diplomacy producing the Protocol was prompted by the tactics and experience of the Vietnam War, which exhibited gaps in the coverage of international humanitarian law as specified by the four Geneva Conventions of 1949.[3] The importance of exempting such armed conflicts from IHL is part of the geopolitical effort to retain freedom of geopolitical maneuver, as Cuddy and Kattan explain, in the momentous international shift from the earlier international law focus on total war to the new realities of endless limited, yet devastating, wars. Protecting civilian populations in this new epoch of post-colonial warfare, as in Syria, Yemen, Afghanistan, Iraq, Libya, and Ukraine are suggestive of the need for further renovation and effective implementation of IHL, and indeed the overall law of war framework. A merit of this volume is to frame this transition by reference to the Vietnam and Middle East experiences, with particular reference to the unresolved Palestinian struggle. This struggle has taken on a new relevance in the last five years as a result of an emergent civil society consensus that Israel apartheid policies and practices are blocking the realization of the long denied basic rights of the Palestinian people.

In assessing these legal developments two features of international political society are paramount, and need to be kept in mind when discussing the two geographically and psycho-politically distinct war zones:

–the primacy of geopolitics vis-a-vis international law;

–the primacy of military necessity in combat situations.

These two realities, given the absence of centralized governmental institutions on a global level, have accentuated the marginality of international law in war/peace situations, both with respect to recourse to force and the behavior of the parties in the course of warfare.

Acknowledging these two definitive constraints on the role of international law in relation to war should not lead us to cynical conclusions that ‘law is irrelevant with respect to war’ or that ‘international law does not matter.’ International law is relevant and matters for several reasons: it empowers civil society activism; it provides a channel for domestic dissent from war making in democratic societies in both government circles and civil society; it moderates behavior of belligerent states to the extent that reciprocal interests support compliance with international legal norms (e.g. treatment of prisoners of war).

During the Vietnam War, the U.S. Government was more eager than subsequently, to retain its liberal image as a champion of a law-governed international order, and so went to great lengths to argue that its policies and practices in Vietnam accorded with international law and the UN Charter. Such motivations also legitimated anti-war activism that could invoke international law to challenge Washington’s behavior in Vietnam. It also emboldened critics in Congress to mount objections framed in legal and constitutional language, and allowed international law scholars like myself to be invited to testify before Congressional committees or have opinion pieces published in mainstream media venues.[4]

Unfortunately, with the rightest drift in American politics and the lobbying leverage of AIPAC and other Zionist groups, the authority of international law and the UN have experienced sharp declines. The U.S. no longer invests diplomatic energy in upholding a liberal image, and increasingly relies on coercive threats and militarism to pursue its foreign policy goals, especially in the Middle East. The reliance on unlawful threats of military attack has been at the core of U.S./Israeli/Saudi confrontational diplomacy directed at Iran for several decades. This trend has reached a symbolic climax of sorts by its imposition of sanctions on the Prosecutor of the International Criminal Court for recommending an investigation of U.S. war crimes in Afghanistan. Israel, also, has responded with a furious denunciation of this international institution for daring to propose a limited investigation of its crimes in Occupied Palestine. Although the U.S. government after a change in presidential leadership terminated its sanctions imposed on ICC officials, it refused to accept the extension of ICC authority to investigate allegations against itself or Israel. Since the Ukrainian Crisis of 2022 the U.S. Government has displayed a mixture of hypocrisy and opportunism by urging ICC investigation of Russian war crimes in Ukraine, and the indictment of Putin.

The fury of these reactions suggests two opposite interpretations. The first, and most obvious, is the refusal of leading states to defer to international law in settings where national security issues or geopolitical alignments are paramount. And the second, that the fury of the reactions to legally framed allegations suggest how deeply sensitive the governments and leaders of such states become when accused of serious violations of international law by credible procedures. In response, such governments do not try to defend their behavior, but move to discredit and weaken international procedures of accountability, in part, as a form of damage control to avoid any worsening of their international reputations. Even if the ICC were to prosecute and convict, there is almost no prospect that its judgments would be enforced, and so the whole pushback is about safeguarding legitimacy and opposing impingements by the deployment of symbolic politics as causative influences in traditional spheres of geopolitical and sovereign autonomy.

A Brief Comment on the Two War Zones

For the United States in Vietnam the Charter norms were perceived as inconsistent with the mission to prevent a Communist victory in South Vietnam and a subsequent unification of Vietnam under the control of Hanoi. It was believed in Washington that it was militarily necessary to extend the war zone beyond the boundaries of South Vietnam to punish North Vietnam for supplying the anti-regime insurgency led by the NLF. Similarly, the extensions of the war to Laos and Cambodia were prompted by calculations associated with disrupting the support of the war in the South of Vietnam by keeping a base area in and maintaining supply chains that passed through Cambodia. Similar reasoning produced sustained U.S. air attacks on Laos, unlawfully abusing diplomatic privileges by orchestrating this military campaign from within the American Embassy in the Laotian capital city of Vientiane. In other words, the Cold War priorities prevailed over efforts to constrain recourse to war and tactics in war. On the other side, the priorities of national liberation and anti-colonial legitimacy also prevailed over legal constraints.

In the Middle East there were similar factors at work, although tempered by some balancing considerations. The United States was still in the 1960s seeking to balance, at least in public, its commitment to Israel with its vital strategic interests in retaining favorable access to regional oil supplies at affordable prices situated in Arab countries. In this respect, contrary to Israel’s wishes at the time, the U.S., along with European countries, sought to affirm international law with respect to the acquisition of territory by force, the major premise of the unanimous UN Security Resolution 242 adopted after the 1967 War. Yet even then there was insufficient political will to implement the rhetoric, by an insistence on a timely Israeli withdrawal.

Of even greater relevance to the focus of the volume is the degree to which antagonists in the Middle East with respect to Israel/Palestine evaded the Charter norm on recourse to war. Israel in 1967 and Egypt in 1973 both sought to gain military advantage by striking first, and thus apparently violating the requirement of a prior armed attack contained in Article 51, although there are respectable legal counter-arguments in each setting.[5] Both governments defended their actions by claiming security imperatives as providing a convincing ‘legal’ rationale for preemption.

As far as interconnections are concerned, both war zones produced conflicts that ignored the fundamental framework of international law and institutional accountability that was the hallmark of the war prevention efforts after World War II. The asymmetric nature of the wars also strained the law of war during combat, especially in Indochina, but also in the Middle East to the extent that warfare after 1967 temporarily shifted to Palestinian efforts to pursue an armed struggle strategy that was designated as ‘terrorism’ by Israel and its supporters.[6] During its various military attacks on occupied Gaza Israel exhibite a disregard for international law constraints, and did no without suffering any adverse consequences. This counter-terrorist rationale had been used by the U.S. in Vietnam, but with less impact due to the outcome of the struggle and the absence of widespread support for the war in the West, including even in the U.S. in its last stages.

International Law Evolves

Against this background it becomes possible to get a better appreciation of how international law evolves. It is important to realize that in some sense all of international law is ‘soft law’ because of the absence of regular procedures of authoritative interpretation and enforcement, not to mention ‘the geopolitical exemption’ of the winners of World War II implicit in the right of veto conferred by the Charter.

Added to this, international law in relation to peace and security issues suffers from the special issues previously mentioned—essentially, the primacy of geopolitics and of military necessity. Geopolitics manipulates the law governing recourse to force, while military necessity by its priority under combat circumstances is constantly reshaping the law involving the use of force.

A major interconnection between Indochina and the Middle East is illustrative. In Indochina the United States created a strong precedent for disregarding the Charter conceptions governing the law governing recourse to force. It put forward some legal justifications to the effect that North Vietnam was guilty of ‘indirect aggression’ by its support of the insurgency in the South, creating a legal foundation for extending the war beyond the artificial boundary delimiting South Vietnam. After the 1964 Gulf of Tonkin alleged attack on American naval vessels in international waters and the February 1965 NLF attack on a U.S. military camp near Pleiku, the U.S. Government shifted its legal rationale to one of collective self-defense against a prior armed attack.[7] It also contended that Cambodia and Laos violated the laws of war governing neutrality by allowing their territories to be used for hostile purposes associated with North Vietnam’s belligerent activities.

Although Israel in 1967 and Egypt in 1973 did not specifically invoke the American precedents set in the Vietnam War, their conduct was shielded from critical scrutiny by the combination of a weakening of the geopolitical commitment to the Charter conception of permissible recourse to force, and by the sense that these specific recourses to force were within their context ‘reasonable.’ Because of the geopolitical alignment with Israel, the Egyptian surprise attack on Israel was legally condemned by Western countries, but in a manner that made it appear to be more an expression of alliance diplomacy than a pronouncement of allegiance to international law. Such a view gains weight from the pattern of practice in years subsequent to 1973.

It was also evident that the West controlled international legal discourse on permissible and impermissible uses of force. In this way the violence of non-state actors and liberation movements was demonized as ‘terrorism’ while state violence even if directed at civilian targets was treated under rubrics of security and self-defense rather than delimited as ‘state terror.’ Such a discourse gained wider impacts after the 9/11 attacks on the U.S., and through the launch of the so-called ‘War on Terror.’ It has impacted strongly in the Middle East contexts, especially allowing Israel to validate its excessive force and collective punishment as security measures or as the exercise of the right of every sovereign state to defend itself. To some extent, especially in recent years, the UN has challenged this discourse by issuing many reports on Israeli violations of the Geneva Conventions and international humanitarian law more generally. This tension between the geopolitical discourse and the UN discourse is what leads the U.S. and Israel, in particular, to make accusations about UN bias when it comes to violations of international law. It is this tension, however, that encourages civil society initiatives to claim the legitimacy of international law, as is the case with support for the BDS Campaign or by mounting challenges to Israeli apartheid.

It should be noted, in passing, that when Western interests are engaged, as by Russia’s recent aggression against Ukraine, the Charter framework is again invoked as if it is as authoritative and constraining as when adopted in 1945. In other words, the fate of norms is tied to the control of the international normative discourse, and especially in relation to the geopolitics of propaganda. For partisans it highlights the relevance of international law, while for objective jurists it suggests the manipulation of law as a self-serving policy instrument aptly invoking criticisms of double standards.

Conclusion

The main conclusion reached is that the Charter framework established in 1945 was greatly weakened, if not altogether rendered somewhat anachronistic, by the combined impact of geopolitical opportunism and military circumstances in the wars taking place in Indochina and the Middle East in the decades after World War II. To some extent, it can be asserted that the Charter framework was always unrealistic given the character of a state-centric world order system that included hegemonic actors recognized as such by their right of veto in the UN Security Council, a disempowering reality that became fully evident onlly after the onset of the Cold War. The nature of the conflicts, which consisted of nationalist movements was also not anticipated by the kind of legal order envisioned for the post-World War II, and not able to cope with the normative challenges of asymmetric warfare or wars of national liberation.

There is also an important tension with regard to the orientation toward normative discourse. The West seeks a statist discourse with unrestricted discretion for geopolitical actors, excepting of course, its rivals who are to be held fully accountable by reference to the UN Charter framework. The South, and at the UN General Assembly, is generally favorable to the claims of nationalist movements and anti-colonialist struggles, especially if directed toward liberation from European or Western control. In this regard, this subaltern discourse is supportive of the situation of the Vietnamese and Palestinian national liberation struggles, given concreteness in international law by the wide consensus supporting the inalienable right of self-determination as enshrined in Article 1 of both International Covenants on Human Rights, and more broadly reaffirmed in the influential Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations.[8]

[1] Indeed, the flaunting of international law was so notorious and the failure of the UN to respond so pronounced that the celebrated British philosopher, Bertrand Russell, convened a civil society tribunal charged with assessing unlawful conduct and international crimes. The tribunal was composed of leading public intellectuals, presided over by Jean-Paul Sartre, and producing a full documented set of conclusions relating to U.S. violations of the laws of war. See John Duffett, ed., Against the Crime of Silence: Proceedings of the Russell International War Crimes Tribunal, (1968). See also Tor Krever’s chapter in this volume for a more detailed discussion of the Russell Tribunal.

[2] On the reasons for the US refusal to ratify the Additional Protocols see the chapter by Victor Kattan in this volume.

[3] On the influence of the Vietnam and Arab-Israeli conflicts on the drafting of Additional Protocol 1 see the chapters by Amanda Alexander and Ihab Shalbak and Jessica Whyte in this volume.

[4] On the significance of international law for civil society activism and domestic dissent during the Vietnam War, see the chapter by Madelaine Chiam and Brian Cuddy in this volume.

[5] See John Quigley’s chapter in this volume for a differing legal characterization of responsibility for initiating the 1973 War. See also, John B. Quigley, The Six-Day War and Israeli Self-Defense: Questioning the Legal Basis for Preventive War (Cambridge University Press 2013).

[6] On the development of ‘operational law’ in the U.S. and Israel, which appears to have been developed partly in response to the conflict conditions in Vietnam and the Middle East as well as the new IHL rules of the 1977 Additional Protocols, see the chapter by Craig Jones in this volume.

[7] For further analysis see Brian Cuddy’s chapter in this volume. Both the Gulf of Tonkin and Pleiku attacks were used to justify plans to expand the combat zone in Vietnam to the north of the country, across the international boundary.

[8] General Assembly Resolution 2625, 24 October 1970, A/Res/2625.

Tags: international law, Israel/Palestine Wars, UN, UN Security Council, Vietnam War

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Categories international law, Israel Palestine, Vietnam War

Westphalian Logic and Geopolitical Prudence in the Nuclear Age

24 May

[Prefatory Note: The following post was published in a somewhat modified form in COUTERPUNCH, May 20, 2022. Its main theme is the contrasting normative logics derived from law (Westphalian logic) on one side, and power politics (geopolitical logic) on the other side. The regulatory guidance of law derives from agreement and interpretation, and that of power politics, from what the Quincy Institute calls ‘responsible statecraft’ and I refer to as ‘responsible statecraft’ that under contemporary circumstances should involve voluntary compliance with international law, that is, in the nuclear age law and geopolitics often converge in their commitments to regulatory rationality.]

Westphalian Logic and Geopolitical Prudence in the Nuclear Age

The Ukraine War, its complexities and global spillover effects, have not been adequately

depicted by either political leaders or the more influential media. Most commonly, the Ukraine War has been narrowly and reductively depicted as a simple matter of defending Ukraine against Russian aggression. Sometimes this standard portrayal is somewhat enlarged by demonizing Putin as criminally committed to the grandiose project of restoring the full spectrum of Soviet boundaries of post-1994 Russia by force as necessary. What tends to be excluded from almost all presentations of the Ukrainian struggle is the rather distinct U.S. Government policy agenda of inflicting a humiliating defeat on Russia which purports to be related to the defense and in the interests of Ukraine yet is unfolding in a quite separate manner that seems to depart from the best interest of Ukraine and the wellbeing of its people.

This geopolitical agenda replicates Cold War confrontations, and in the global setting, seeks to remind China as well as Russia, that only the United States possesses the will, authority, and capabilities to act as the guardian of global security with respect to the maintenance or modification of international boundaries of sovereign states anywhere on the planet. Illustratively, Israel has been given a tacit green light by Washington to annex the Golan Heights, an integral part of Syria until the 1967 War, while Russia remains sanctioned for its annexation of Crimea and its current claims to incorporate parts of the Dombas region of Ukraine have been met with harsh punitive sanctions and allegations of war crimes by the U.S. president, Joe Biden. Additionally, Biden has officially and publicly committed the United States to the military defense of Taiwan in the event of an attack by China.

The most influential Western media platforms, including CNN, BBC, NY Times, The Economist, with few exceptions, have largely supported one-dimensional governmental narrative accounts of the Ukraine War, which leaves the misleading impression that U.S./NATO involvement is strictly responsive to the Russian attack on Ukraine with no broader policy objective in play. The views of progressive and anti-war critics of the manner that American foreign policy has handled the Ukraine crisis are almost totally unrepresented. At the same time, some elements of the extremist right is castigated for daring to oppose the national consensus as if only the only dissenters are conspiracy inclined fascists or those motivated by treasonous sentiments. Almost no attention given by these powerful media outlets to understanding either the buildup of tensions relating to Ukraine in the years preceding the Russian attack or the wider security rationale that could partially explain (although not justify) Putin’s resolve to reassert its former authority in the Ukraine. Similarly, there was virtually no mainstream discussion of or support for ceasefire/diplomatic options, favored by many peace and religious groups, that sought to give priority to ending the killing, coupled with a search for possible reconciling formulas that combined Ukrainian sovereign entitlements with some adjustments taking account of Russian security concerns.

The most trusted and influential media in the West functioned largely as a war-mongering propaganda machine that was only slightly more nuanced in its support for the official line of the government than what one would expect from unambiguously autocratic regimes. Coverage highlighted visual portrayals of the daily brutalities of the war coupled with a steady stream of condemnations of Russian behavior, detailed reportage on the devastation and civilian suffering endured by Ukrainians in the combat zone, and a tactical overview of how the fighting was proceeding in various parts of the country. These bellicose narratives were repeatedly reinforced by expert commentary from retired generals and intelligence officials, and never subjected to challenge from peace advocates, much less political dissenters and critics. I have yet to hear the voice or read texts on these mainstream media platforms from the most celebrated public intellectuals, Noam Chomsky or Daniel Ellsberg, or even from independent minded high-level former diplomats like Chas Freeman. Of course, these individuals are talking and writing but to learn their views you generally have

to navigate the internet in search of such online websites as COUNTERPUNCH and Common Dreams.

The fog of war has been replaced by a war fever while making the transition from helping Ukraine defend itself against aggression to pursuing a victory over Russia increasingly heedless of nuclear dangers and worldwide economic dislocations that threatened many millions with famine, acute insecurity, and destitution. The shrill assured voices of generals and think tank security gurus dominated commentary, while pleas for peace from the UN Secretary General, the Dalai Lama, and Pope Francis, if reported ed at all, were confined to the outer margins of public awareness.

This unfortunate absence of reasoned and responsible debate was further distorted by dangerously misleading statements made by the highest public official responsible for the formation and explanation of American foreign policy, the Secretary of State, Antony Blinken. Whether out of ignorance or the convenience of the moment, Secretary Blinken has been widely quoted as explaining to the public here and abroad in prime time that the U.S. does not recognize ‘spheres of influence,’ an idea “that should have been retired after World War II.” Really! Without mutual respect for spheres of influence throughout the Cold War it is probable that World War III would have been ignited by Soviet interventions in East Europe, most notoriously in Hungary (1956) and Czechoslovakia (1968). Similar deference was exhibited by Moscow. U.S. interferences in Western Europe as well as the Soviet Bloc defection of Yugoslavia were tolerated by the Kremlin. Some of the most dangerous armed confrontations occurred during the Cold War Era were revealingly located in the three divided country of Germany, Korea, and Vietnam where norms of self-determination exerted continuous pressures on boundaries artificially imposed on these countries for reasons of geopolitical convenience.

Since the end of the Cold War, Blinken should be embarrassed about telling the peoples of Cuba, Nicaragua, and Venezuela that the idea of spheres of influence is no longer descriptive of how the U.S. shapes its policy in the Western Hemisphere. Decades age Octavio Paz, the Mexican author found vivid words to express the reality of such spheres: “The tragedy of Mexico is to be so far from God and so near to the United States.” As has been observed, the Russian assertion of a traditional spheres of influence has more continuity with the past than does respect for territorial sovereignty of the countries that have regained statehood within such spheres after the Soviet collapse. This recognition is not meant to express approval of such spheres, serving only as a realization of geopolitical practice that has persisted through the whole of modernity and a further sense that mounting a challenge in light of this practice is almost certain to produce friction and heighten risks of major warfare., which in relations among states armed with nuclear weapons should induce extreme caution on the part of prudent actors. To pretend that spheres of influence are a thing of the past, as Blinken seems to be doing in relation to Ukraine, is doubly unfortunate—it is mindless about the relevance of geopolitical prudence in the nuclear age and it either ignorantly or maliciously condemns behavior of others while overlooking the analogous behavior of his own country, thereby adopting a U.S. posture of geopolitical hubris ill-suited to human survival in the nuclear age.

In the months before it became politically convenient to throw spheres of influence into the dustbin of history, Blinken was lecturing the Chinese about adhering to a ‘rule-governed’ international order that he contended was descriptive of U.S. behavior. Such an invidious comparison was a cover for confronting the quite different Chinese challenge to unipolarity being mounted as a result of China’s growing competitive edge in economic and diplomatic influence and technological breakthroughs. A puzzle for Washington arose because it could not complain that the Chinese ascent was due to posing a security threat due to its military capabilities and its aggressive uses of force (except, interestingly, within its traditional coastal and territorial spheres of influence). And so, the claim centered on the rather original allegation that China was not playing the game of power with respect to intellectual property rights by the ‘rules,’ but what are these rules and where does their authority derive from? Blinken was careful in his complaints about Chinese violations not to identify the rules with international law or decisions of the United Nations. Wherefrom then? Most probably Blinken has in mind a self-serving interpretation of the Breton Woods neoliberal framework associated with the operations of the World Bank and IMF, but refrained from saying so.

There is, to be sure, a subtle complexity about rules of order in international relations, especially on matters bearing on the use of force in international relations. A normative dividing line can be identified as 1928 when many leading governments, including the U.S., signed on to the Pact of Paris outlawing war as an instrument of national policy, [see Oona A. Hathaway & Scott Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2017)]. This ambitious norm, was then turned into the formulation of a Crime Against Peace in the London Agreement of 1945 by the victorious powers in World War II that set forth the War Crimes Charter that provided the jurisprudential foundation for the Nuremberg and Tokyo criminal prosecutions of surviving German and Japanese political leaders and military commanders. These legal innovations, although treated as major milestones in the development of international law, were never meant to constitute new rules of order and accountability that would bind sovereign states enjoying geopolitical stature as made plain in the UN Charter. Probably that should have been evident given the supreme irony of the London Agreement being formally signed by these governments on August 8, 1945, two days after the first atomic bomb was dropped on the city of Hiroshima and one day prior to the second atomic bomb was dropped on Nagasaki.

Otherwise, how could one explain the conferral of a right of veto on the five permanent members of the UN Security Council, which can only be viewed as a geopolitical right of exception, at the very least within the UN context. Apologists for this seeming repudiation of a law-oriented approach when it came to the most dangerous states at the time point to the need to give the Soviet Union assurances that it would not be outvoted by the West, or otherwise it would be unwilling to participate in the UN, and the Organization would wither on the vine in the manner of the League of Nations. But if this was truly the dominant reason for the veto, a less obtrusive could have been chosen as the way of providing reassurance, such as requiring decisions of the Security Council opposed by the Soviet Union to be supported by all non-permanent members. There would be no comparable need to give the four other states the veto unless there was an overriding motive to entrench in the UN Charter the prerogatives of geopolitical leverage as measured by being on the winning side in World War II.

Such an observation makes us aware that there exists more than one source of normative authority in the sphere of international relations. and at least two. There is the fundamental idea deriving from the origins of the modern states system identified with the Peace of Westphalia in 1648, which accorded equality to sovereign states. And then there is a second source of largely unwritten and rarely spoken about normative authority that regulates those few states that are freed from the constraints of international law and enjoy impunity for their actions. These are the states given the veto power, and among these states are those that seek the added discretion of being non-accountable for their acts. This deference to power and national supremacy, undermines fidelity to law where it seems most needed, and has long been a fundamental deficiency of sustaining peace in a nuclear-armed world. Yet geopolitics, like international law itself, possesses a normative order that is designed to impose certain limits on these geopolitical actors that if responsibly applied serves the public good. The Quincy Institute recognizes this vital feature of international relations by its positive emphasis on ‘responsible statecraft,’ which is roughly equivalent to my call for ‘geopolitical prudence.’

A crucial geopolitical prescription along these lines was the appreciation of spheres of influence as delimiting extraterritorial zones of exclusive influence, which might include ‘unlawful’ interventions and exploitations of weaker states (e.g. ‘banana republics’). As abusive as the diplomacy of spheres has been for targeted societies it has also been a way of discouraging competitive interventions that might otherwise lead to intensive wars between the Great Powers, and as mentioned, plays an indispensable role in reducing the prospect of dangerous escalations in the nuclear age. How Blinken can be so myopic in addressing this essential feature of world order is stunning, and is paralleled by the failure of the media to expose such dangerous and self-serving nonsense.

To be sure international law is itself subject to geopolitical influence in the formation and interpretation of its rules and their unequal implementation, and is far from serving justice or even public order in many critical circumstances, including its validation of settler colonialism. [See Noura Erakat, Justice for Some: Law and the Question of Palestine(2019)] Yet when it comes to upholding the prohibition on non-defensive uses of force and accountability for war crimes, it has sought to uphold the norms unless violated by major geopolitical actors and their special friends. The ad hoc International Criminal Tribunal for Former Yugoslavia, established by the UN, did not distinguish between winners and losers in the manner of the Nuremberg and Tokyo Tribunals or for that matter the Supreme Iraqi Criminal Tribunal (2005-06), which imposed a death sentence on Saddam Hussein while ignoring the U.S./UK crimes of aggression in the Iraq War of 2003.

In conclusion, it is important to recognize the interplay of international law and the geopolitical normative order. The former rests on agreement of juridically equal states as to norms and customary practice. International law also increasingly rests on voluntary compliance as illustrated by the World Court being confined in its law-declaring role to issuing ‘Advisory Opinion’ that states and international institution are permitted to disregard. Or more substantively, in relation to compliance with carbon emission pledges of parties to the Paris Climate Change Agreement of 2015.

The geopolitical normative order depends on prudence along the lines of the precautionary principle, its norms being self-interpreted, best guided by past experience, tradition, mutuality, and common sense. It should be understood that geopolitical status of the Permanent Members of the Security Council is not reflective of their de facto role in international relations. At present, only the United States, China, and Russia enjoy an existential geopolitical status; France and the UK do not, and perhaps, India, Nigeria/South Africa, Brazil possess some de facto geopolitical attributes, but lack a corresponding de jure recognition.

In the context of the Ukraine War Russia is to be faulted for its flagrant violation of the prohibition of aggressive war and its war crimes in Ukrainian combat zones, and for intimating

a willingness to have recourse to nuclear weapons if its vital interests are threatened. The United States is to be faulted for irresponsible statecraft or imprudent geopolitics by its replacement of a defensive role of support for Ukrainian resistance by more recently pushing for the defeat of Russia through the massive increases of aid, encouragement of enlarged Ukrainian goals, supplying offensive weaponry, continuation of demonizing Putin, absence of advocacy of ceasefire and peace diplomacy, inattentiveness to escalation risks especially in relation to nuclear dangers, and overall manipulation of Ukraine Crisis as part of its strategic commitment to the sort of unipolar geopolitics that has emerged during the aftermath of the Cold War. Unipolarity entails a repudiation of Chinese and Russian efforts to achieve a multipolar management of global governance. It is this latter tension that if not addressed points to a second Cold War more dangerous than its predecessor, feverish arms races, periodic crises, and the diversion of resources and energies from such urgent global challenges as climate change, food security, and humane migration policies.

Tags: geopolitics, international law, Russia, Ukraine, UN Charter, Unipolarity, United States

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Categories geopolitics, Ukraine, Ukraine War, Ukraine Wars, Unipolarity

A Ukraine Peoples Tribunal?

7 May

[Prefatory Note: A somewhat modified version of this pose was published online in CounterPunch on May 6, 2022 under the title “Toward a Ukraine Wars Peoples Tribunal. The most important change is the insistence that the Geopolitical War taking place under the rubric of the Ukraine War is different and farmore dangerous than what is being described as a ‘proxy war.’ Also important is the growingevidence that the inflammatory nature of Biden’s tactics in the Geopolitical War, especially the endorsement of ‘a victory scenario’ compounds the dangers, including heightening the risk that nuclear weapons will be used. What is needed is for civil society to frame with a sense of urgency ‘a peace scenario’ with as many specifications of its character as possible. I consider the proposal to form a civil society tribunal a step in this direction.]

Toward a Peoples Ukraine Wars Tribunal

The deepening current Ukraine Crisis is properly linked to the Russian aggression that commenced with a massive military attack against Ukraine on February 24, 2022, although it should not cover up the provocative developments of preceding years that prepared the way for what has erupted. The Russian attack has continued to ravage the country since, including inducing a refugee flow numbering several million. There is a broad consensus around the world that such aggression is a criminal violation of international law, and while noting the irresponsible nature of NATO provocations, it is widely agreed, fail to provide Russia with a legally, morally, or even politically persuasive rationale with respect to accountability for such a violent encroachment on Ukrainian sovereign rights and territorial integrity. At the same time, from the outset of these events there was much more limited international support for the American led punitive response by NATO featuring harsh comprehensive sanctions amounting to ‘economic warfare,’ shipment of weaponry to the beleaguered country, dehumanization of Putin and Russo-phobic propaganda, along with silence about recourse to a diplomacy directed at stopping the killing and devastation. In the background of the two-level war was the related internal struggle within Ukraine between dominant indigenous forces in the Western part of the country and the Russian-speaking Ukrainians who are the majority in the industrial heartland of the country in the Dombas East.

As Russian military operations proceeded, perceptions of the core conflict began to change. What seemed at first a simple war of aggression, to be followed by belligerent operation, became by successive phases a geopolitical war between the United States and Russia, with strategic goals quite apart from the outcome of events in Ukraine, as well as heightening costs of the encounter for the entire world, including the people of Ukraine and especially the extreme poor everywhere. And while Washington bears the main responsibility for this shift, the Russian response was also irresponsible– not compromising war goals and recourse to veiled threats of nuclear warfare emanating from Moscow and Putin. Yet the essential character in this elevation of the war strategy to a geopolitical level of engagement is the rather explicit American shift in its policy entailing less of an emphasis upon bolstering Ukrainian resistance to Russian aggression and far more about inflicting a stunning geopolitical defeat on Russia and at the same time revitalizing post-Cold War transatlantic unity through a reaffirmation of the benefits of the NATO alliance in a global text where Russia is once more cast as the enemy of Western democracy.

It is important to understand that this Geopolitical War raises the stakes in Ukraine much higher than the prevailing tendency to view the second level war between the U.S. and Russia as a ‘proxy war.’ A proxy war conceives of the strategic stakes in terms of the outcome of the conflict on the ground, whose overt antagonists are Russia and Ukraine. Conceiving of this confrontation as a geopolitical war calls attention to the much larger strategic consequences and risks because what is at stake is the structure of power on a global scale, specifically this Geopolitical War will influence the struggle between the U.S., Russia, and China as to whether the global security will reflect unipolarity or multipolarity. It is easier for a country to accept defeat in a proxy war than in a geopolitical war, and herein lies embedded grave dangers of escalation.

Given such developments, the time has come for civil society initiatives to counter the disastrous global confrontation that is now endangering the world, and indeed even species survival prospects, in the pursuit of these geopolitical goals by the United States disguised somewhat by media complicity that continues to convey the impression that the Ukraine War is still only about the defense of Ukrainian sovereignty and territorial integrity, the daily war crimes attributable to the Russians, and the heroic and increasingly successful efforts of the Zelensky leadership and the courageous national unity of the Ukrainian people. I believe this is a basically deceptive and potentially dangerous image, including for Ukraine, and even for the main disseminator of hostile geopolitical propaganda, the U.S. Government and consequently, the American people. Perhaps, it comes as a disturbing surprise that only the political extremes of right and left are interpreting the Ukraine War as producing a global disaster that begun to spill across the borders of Ukraine, with far worse to come without even taking full account of the growing nuclear dangers. What has also become evident is the helplessness of peace-oriented approaches. Such voices are being shut out by mainstream media platforms, which is reinforced by the inability of the UN to act independently of a geopolitical consensus, and by inter-governmental impotence to safeguard human interest in face of the menacing moves by the most powerful states motivated by strong contradictory geopolitical goals.

In light of this line of interpretation, I am proposing the establishment of a civil society tribunal along the lines of the Russell Tribunal that brought independent critical voices to the fore during the Vietnam War, which has become the principal combat theater of the Cold War in 1966-67. Although the tribunal was controversial at the time and of questionable relevance to ending that war, the Russell undertaking inspired many notable efforts along the same lines, most notably organized under the sponsorship of the Lelio Basso Foundation in Rome. Perhaps, most notable was the elaborate series of such initiatives in response to U.S. aggression against Iraq in 2003 culminating in the very significant Iraq War Tribunal of 2005. The proceedings of that event, appropriately held in Istanbul, can be beneficially studies to cast light on the policy dilemmas of the Ukraine Crisis. This self-funded event in Istanbul orchestrated brilliantly by a group of Turkish progressive women citizens brought together internationally prominent jurists and moral authority figures including Arundhati Roy who served as the chair of the jury of conscience that sat in judgment, and rendered an opinion of lasting significance, especially for anti-war world tendencies.

It is my belief that such a tribunal devoted to passing judgment of the Ukraine Wars, constituted as a matter of urgency, is more important than any of these previous comparable civic events because the stakes for humanity are higher. The use of the plural for what is happening in Ukraine is not a typo, but reflects the view explained in my prior articles that the Ukraine Crisis can only be properly understood if interpreted as three interrelated wars with contradictory features: Level 1: Russia vs. Ukraine; Level: 2: U.S. vs. Russia; Level 3: Western Ukraine vs. Dombas. It is for this reason that I am proposing here that the tribunal named Peoples Tribunal on the Ukraine Wars, despite its awkwardness.

The case for such an initiative is not only to give expression to views of the Ukraine Crisis that take international law, geopolitical crime, and nuclear dangers seriously, but also in view of the political incapacity of the UN to act effectively and responsibly when geopolitical actors get heavily embroiled in such a violent conflict which threatens world peace generally and causes massive suffering throughout the world, especially in the least developed countries or in societies dependent on import of basic foodstuffs and energy for reliable supplies at affordable prices. Most of the people vulnerable to such a mega-crisis live in states that have hardly any influence in the formation of global policy, but often bear the heaviest weight of its shortcomings. At present a normative vacuum exists in response to the Ukraine Crisis. This leaves transnational civil society as the last, best hope to exert a responsibility to act, and indeed seize the opportunity to goad the formal political actors on the global stage to operationalize a peace scenario before it is too late

Clarifying the Background

First, when it comes to war/peace issues there exist two operational sets of norms with respect to international relations: (1) International Law, binding of all sovereign states; (2) Geopolitics that privileges a few powerful states. The identity of geopolitical actors is not as clearly identified as is that of sovereign states, which is rather clearly signified by internationally recognized territorial boundaries and access to membership in the UN, now numbering 193, that is, virtually all. The most influential, yet still misleading, guideline as to geopolitical stature is contained in the UN Charter, taking the form of the right of veto conferred on the five Permanent Members of the Security Council (also known as the P-5) who happened to be the winners in World War II and also the five countries first to acquire nuclear weapons. As the composition of the P-5 has remained frozen in time for more than 77 years it is no longer descriptive of the geopolitical landscape, and never was. For this reason alone geopolitical identity is currently more blurred and problematic than earlier. Some P-5 members have declined in both hard and soft power since 1945, such as the UK and France, and seem to lack the capabilities and stature to qualify any longer as first tier geopolitical actors. In contrast, countries such as India, Japan, Germany, Brazil, Nigeria, Indonesia, South Africa have increased their capabilities and raised their stature in such ways as to seem existentially entitled to the status of ‘geopolitical actors’ at least regionally, and in some instances, globally.

From a normative point of view the distinction between international law and geopolitics is fundamental, and again is made clear by the significance of P-5 status within the UN framework which was designed to keep the peace after World War II. International law is applicable to every state, but is explicitly not obligatory for the P-5, which is what has made the UN so limited in its operational ability to provide humanity with a globally supervised war prevention system based on compliance with international law. Giving the Western states a veto was tantamount to acknowledging, as had been true for international relations in prior centuries, that the UN could not be expected to implement its own Charter norms if they collided with strategic interests of the P-5, but that compliance with these norms, if forthcoming at all would depend on geopolitical self-restraint or the counterforce of adversary geopolitical actors exerted outside the UN. A similar pattern of obstruction existed when Russia was the Soviet Union, yet its participation that was seen as vital in 1945 if the UN was to enjoy global legitimacy premised on universal membership. Granting the USSR a right of veto was also a matter of protecting the country against its understandable anxiety about facing a Western majority on vital issues. As the decades have shown, the U.S. in particular has used the veto (e.g. to shield Israel) or avoided the UN (as in the Vietnam War, NATO Kosovo War, and Iraq War of 2003) when it thought its proposed plan of action would be vetoed, or otherwise not supported. The UN was deliberately disempowered from any legal attempt to implement compliance with the UN Charter in relation to geopolitical actors, and the existential reality was not dissimilar from the pre-UN Westphalian structure of and experience with world order since the mid-17^th century. Regulation of the use of force by the Great Powers, as they were formerly called, depended on a mixture of their self-restraint and what came to be known as ‘the balance of power,’ redesigned in the nuclear age as ‘deterrence.’ These nuclear dimensions are under challenge from many non-geopolitical states and world public opinion, most recently in the form of the 2021 Treaty on the Prohibition of Nuclear Weapons (TCNP). This initiative is so far limited in its impacts due to the distressing non-participation of any of the nine nuclear states, as well as their allies staking their security on the reliability of the ‘the nuclear prrotectorate’ provided by geopolitical actors.

A second set of related considerations can be identified as the ‘Nuremberg Exception,’ which can be interpreted as follows: a geopolitical actor loses its impunity with respect to international law if it is defeated in a major war. This attitude is evident in the course of the unfolding two-level war in Ukraine. The U.S. at the highest level of its government has been condemning the Russian attack as a war crime that should engage criminal accountability of Putin, and others, if the International Criminal Court acts to fulfill its mandate. This can be viewed from one angle as a kind of ‘winner takes all’ feature of geopolitical order, or from another as gross hypocrisy by recourse to one-sided (in)justice beneath the banner of ‘Victors’ Justice.’ Nuremberg would enjoy somewhat increased jurisprudential credibility if the U.S. had demonstrated post-Nuremberg its own willingness to be held accountable under the frameworks of international criminal law or the codified version of the Nuremberg Principles, which do not acknowledge that a Nuremberg Exception exists, despite its persisting reality.

Thirdly, what is missing in this recital of the jurisprudential realities of international relations is the availability of a venue capable of a legitimate normative assessment of the behavior of geopolitical actors whether they are on the winning or losing side in a major war. It is evident that the UN lacks the constitutional mandate and political independence to undertake such a challenge without a thorough overhaul in its authority structure. Such reforms would require the approval of the very actors whose behavior would then become subject to international law, and these actors show no readiness to curtail their discretion. It is for this reason that the only way to close the accountability gap is to rely on civil society activism as a legitimate source of normative authority. One such responsive effort, used in the past, has been to convene a tribunal based on the authority of ordinary people as representatives of society to uphold international law in the event of the failure of the UN or governments to do so. In the setting of the Ukraine Crisis such a tribunal could be entrusted with investigating the three levels of the war from the perspective of international law, with the addition of an aspirational norm that extends the reach of the tribunal to the geopolitical domain.

At present, inter-governmentally generated international law not surprisingly fails to criminalize geopolitical wrongdoing. It is not surprising because throughout modern history geopolitical actors have been the principal architects of international law and vigilant about protecting their freedom of action along with their national interest more generally. I believe it has become desirable to posit the existence of a residual civil society legislative capacity somewhat analogous to the residual role of the General Assembly of the UN if at an impasse is present in the Security Council with respect to a serious threat to international peace and security. On this basis a civil society endorsement of the concept of ‘geopolitical crime’ is justified to bring the US/Russia Geopolitical War within the ambit of the authority of The Ukraine Wars Tribunal.

There are two obvious weaknesses of this line of thinking that should be acknowledged. First, the Tribunal lacks any formal enforcement capability, although it could call for civil society boycotts and divestments that were effective in exerting transformative pressure on South Africa’s apartheid regime. Secondly, the activist impulses that fund and make operational The Ukrainian Wars Tribunal are themselves self-consciously partisan or reflect the outlook of social movement, which is of course not qualitative different than the deep biases intergovernmental institutions. Such partisanship of this radical civic action will be subject to criticism from start to finish, which may yield a helpful debate about war, law, and accountability.

It is evident that this proposal is principally an undertaking whose effectiveness will in the first instance registered symbolically rather than substantively in the sense that nothing immediate will change behaviorally in the prosecution and conduct of the three Ukrainian wars. Symbolic impacts should not be underestimated. The political outcomes in the most salient wars since 1945, including the epic struggles against colonialism, were politically controlled, often after many years of devastating warfare, by the weaker side if measured by material, especially military capabilities. I recall hearing the American president, Lyndon Johnson, in the mid-1960s boast that there was no way the United States could lose the war to Vietnam, ‘a tenth-rate Asian power.’ Symbolic venues shift power balances due to the commitments of people, and even alter the impacts of material interests over time. The struggles against slavery, racism, and patriarchy each manifest this dynamic. What at first seemed futile somehow became history!

In concluding, I hope some readers throughout the world will feel motivated enough to make the Peoples Ukraine Wars Tribunal a reality! It should be thought about as contributing to the imperative of framing A Peace Scenario that challenges the now ascendant Victory Scenario.

Tags: 3-level war, Civil Society Tribunal, Geopolitical War, international law, Proxy War, Ukraine Wars

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Categories civil society, Geopolitical War, Peace Scenario, Ukraine Wars

‘Rules-Based-International-Order’: A New Metaphor for U.S. Geopolitical Primacy

1 Jun

[Prefatory Note: This post interrogates Biden’s Secretary of State’s frequent claims that the United States and its allies adhere to a ‘rules-based-international-order’ while our adversaries somehow do not. Yet Antony Blinken does not clarify what is the behavioral substance of this dual track behavior. Do Blinken’s rules validate impunity for close allies such as Israel or Saudi Arabia? Are U.S. ‘black sites’ for interrogating suspects overseas in ways prohibited by U.S. and international law? For destabilizing policies and coercive measures directed at Iran? For imposing sanctions on Cuba, Venezuela, Zimbabwe, others, and refusing to suspend these sanctions during the COVID pandemic despite WHO appeals? And what about all those regime-changing interventions? and interferences in foreign elections? It raises two sets of issues: WHAT RULES? FOR WHOM? Others around the world have few doubts about how to answer these questions. Blinken’s rules are a way of force-feeding the insatiable American appetite for the food of innocence, however toxic, perhaps the new language of ‘American exceptionalism.’]

‘Rules-Based-International-Order’: A New Metaphor for U.S. Geopolitical Primacy

Is the U.S. Leading a Geopolitical Alliance or a Coalition of Governments Committed to Democracy and Human Rights?

Biden’s Secretary of State, Antony Blinken, has made U.S. adherence to a ‘rules-based-international-order’ the core of American foreign policy. It is being used as a sword against China, Russia, and some other countries that have antagonized Washington for a variety of reasons. It seems to be as aspect of what Biden must has in mind when he speaks about ‘building back better.’ Of course, part of this new wave of American ‘liberal internationalism’ is to get out from under the dark legach of chauvinistic nationalism and transactional relations with foreign governments that Trump presidency left behind.

Biden wants in contrast to reaffirm U.S. claims to be a benevolent global leader almost as if he is living in the years after World War II. Trump was as confrontational toward China as Biden/Blinken but he validated his hostile and bombastic diplomacy by exclusive efforts to advance the U.S. policy agenda of self-serving national interests. Implicitly, he was telling American Cold War allies, including the European democracies, that they would have to pay their fair share if they wanted the American NATO alliance to continue providing for their security. The Biden approach seems willing to buy back global leadership by investing whatever it costs to maintain the American global security system of 800 based around the world, navies in all oceans, and an edge in the distinctive weaponry resulting from innovations in cyber technology, robotics, and AI.

There is some foreign policy overlap between two presidencies, Biden like Trump has conceded that regime-changing interventions and prolonged occupation of a hostile society in the global South has compiled a record of costly failures. Biden’s withdrawal from Afghanistan in a few months, overriding Pentagon warnings, was a sign that there would be fewer ‘forever wars’ in the next few years. A second convergence with the Trumpism is to maintain an inflated military budget and to push foreign arms sales, thus ensuring retaining the dubious distinction of being by far the world’s leading annual spender on military preparedness and the dominant player in the lucrative global market place for weaponry.

Where Biden/Blinken diverge most strikingly from Trump/Pompeo is with respect to ideological and normative claims, relating to solidarity with democracies and a robust commitment to human rights. Even before Biden moved into the White House he made clear that his primary motivation in foreign policy would be to lead the democratically oriented governments in an ideological against the autocrats of the world, a division that promised to be divisive and to risk the second coming of the Cold War division of the world into friends and enemies. Worse than the rivalry with the Soviets, this new conflict patterning risks hot wars and diverts resources and energies at a time when other urgent needs, above all, climate change, deserve to be the focus of security concerns. In this important sense, Biden is living dangerously in a long gone past.

Furthermore, when the signifiers of democracy and human rights are examined critically, it turns out that in practice they are more about hostile propaganda than expressive of coherent commitments to democratic forms of governance or respect for human rights. The distinguishing criterion of diplomatic affinity for Biden is the willingness to be a compliant alliance partner, nothing more, nothing less.

In light of this what are we to make of this diplomatic language that sounds so idealistic? If it is carefully considered even from a sympathetic perspective, it nothing more than a way of calling attention to normative bipolarity. It draws an imaginary line between democrats and autocrats, with the U.S. and its NATO allies leading the democracies and China and Russia leading the autocracies. In existential terms there are some full-fledged autocrats that are welcomed into the democratic tent despite their autocratic resume—for instance, Modi, Mohammed bin Salmon, Sisi, Bolsonaro, and for that matter Netanyahu.

When Israel flagrantly defied the rule of law in its recent military operation against Gaza the United States used its leverage to block calls for a ceasefire at the UN Security Council and blandly told the world that Israel ‘had the right to defend itself’ overlooking its provocative acts (evictions of Palestinian families from the Sheikh Jarrar neighborhood, right-wing settlers marches protect by Israeli police shouting ‘Death to the Arabs,’ and interference with al-Aqsa worshippers at the height of Ramadan), which seemed intended to incite Hamas to attack with its primitive rockets, which would provide Israel with just enough legal cover to launch a massive military operation that caused 20 times the number of civilian deaths in Gazaa than were Israelis killed by the Hamas rockets.. It has credibly conjectured that the domestically embattled Netanyahu sought the crisis with the Palestinians as a way to remain in power as the Israeli public has always backed the leadership if Israel was military engaged.

Living in a ‘Rule-Governed International Order’?

Against this background, one would have expected Biden and Blinken at least to couple their enthusiasm for alliance diplomacy with language that indicated respect for international law and support for a stronger United Nations. This is such an obvious oversight that it must be assumed to be deliberate. And it leads us to wonder further what sort of alternative ‘rules-governed international order’ was being put forward. One hypothesis is that Blinken was guilty of a repeated slip of the tongue, and what was intended all along was ‘a ruler governed world’ by ‘guess who?’Diplomatic practice in this early period of the Biden diplomacy makes this reformulation more than a semantic joke.

When it comes to China or Belarus their behavior justifies an opportunistic sounding the alarm due to their alleged failures to abide by the rules of international law. True, China declared an adverse judgment of the Permanent Court of Arbitration a few years with respect to its island resource disputes with the Philippines in the South China Seas. Rather than making China an outlier, such a show of contempt for the decision of an international tribunal makes it seem like it has learned to behave like other members of the geopolitical club. The United States recently flaunted international institutions when it officially repudiated a decision by the International Criminal Court that claimed the legal authority to investigate well-evidenced allegations of U.S. international crimes against humanity in Afghanistan. The reason to emphasize inconsistency in the Blinken claim that they play is to show that the commitment to a rule-based international order is based on moral hypocrisy, and should be perceived for what it is, hostile propaganda.

This pattern of seeing with one eye is even more blatant when it comes to human rights—when the silences scream and the screams are contrived to mobilize hostility. Do we hear from Washington about Duterte’s gangster tactics of governance in the Philippines or the denial of rights to Muslims in India, especially Kashmir? In contrast, the far lesser grievances of the population of Hong Kong or Tibet becomes a major concern of Washington, and the treatment of the Uyghurs in Xinjiang are inflammatorily portrayed as ‘genocide.’ The compliant Western mainstream media dutifully followed the unwritten guidelines as to erasures and trumpets, while Pentagon planners and think tank militarists urge Congress to increase arms expenditures, and seem to relish prospects of a confrontations in the waters surrounding the Chinese mainland, especially highlighting Chinese threats to the security of Taiwan and U.S. resolve to engage militarily in response. This war-mongering ethos is evident in the call for weapons rather than

a plea for avoiding incidents that could lead to uses of force by establishing joint crisis management schemes.

Concluding Remark

This emphasis on a ‘rules-governed’ world implicitly makes the polemical claim that the United States play by the rules whereas our adversaries do not. But what can this mean? The United States has projected more deadly force outside its borders than has any state in the course of the last 75 years. It has also intervened repeatedly over the years in disrupting democracies and using its geopolitical prerogatives to block and sanction democratic forms of governance if they refuse U.S. tutelage or display proclivities that can be castigated as ‘socialist.’ The Snowden revelations suggest that the United States has invested more heavily than any government on the planet in developing intrusive surveillance capabilities. The U.S. record of manipulating foreign elections is notorious, and has long been a well-known part of the CIA’s portfolio.

Several conclusions emerge:

–Blinken’s stress on the virtues of a rules-governed world should not be confused with making a U.S. commitment to conduct its foreign policy in accord with international law:

–When this rule-governed language is used to criticize the behavior of others, the misleading claim is implied that the U.S. plays by rules applicable to others, but its adversaries don’t;

–Blinken should be pressed to clarify the concept and to explain why he refrains from references to international law and the UN Charter when describing U.S. foreign policy; I suspect that ‘American exceptionalism’ is in play when it comes to exploring Blinken’s normative consciousness. Why else would the US refrain from becoming a party to the International Criminal Court?

–It should be emphasized by foreign diplomats and international jurists that the only legitimate rules-governed international order is international law, even when critical account is taken of its hegemonic record and its selective enforcement. And more progressive civil society initiatives should use international law, where possible, as a counter-hegemonic tool on behalf of global justice.

Tags: American exceptionalism, Antony Blinken, international law, Rules-Based-International-Order

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Categories Antony Blinken, international law, Rules-Based-International-Order

Pompeo’s Diabolical Diplomacy

29 Nov

[Prefatory Note: The following interview devoted to Pompeo’s three day visit to Israel and Occupied Palestine conducted by Eshrat Mardi, was published in the Tehran TimesInterview Nov. 28, 2020.]

1: On November 19, Mike Pompeo toured the West Bank and the Golan Heights. How do you analyze the visits to these two occupied lands in terms of international law?

Given the timing of Pompeo visit, so shortly followed by the shocking assassination of the leading nuclear scientific figure, Mohsen Fakhrizadeh, makes one wonder whether the real strategic purpose of the visit was either to be told about the planned attack or to encourage it. We have no way of knowing beyond the circumstantial evidence suggesting some level of linkage between Pompeo’s visit and this high-profile assassination.

As far as the secondary goals of the Pompeo visit are concerned, I would suggest an effort on his part to solidify the pro-Israeli legacy of the Trump presidency with the added goal of inhibiting any attempts on Biden’s presidency to disavow U.S. support for this series of unlawful territorial expansionist moves made by Israel since 2016. It also seems that Pompeo seeks to be the Republican nominee for president in 2024, and apparently supposes that acquiring credentials as the most ardent champion of Israel will attract Zionist money and backing in the U.S, in the years ahead.

2: Pompeo said the boycott, divestment, and sanctions (BDS) movement against Israel, which is only aimed at pressuring Israel to stop settlements of Palestinian lands, as “anti-Semitic” and as “cancer”. How do you interpret these remarks?

Such unacceptable efforts to brand BDS as anti-Semitic is a further effort by Pompeo to appease the most militant Zionist elements in the United States, and should be understood in the context of my response to the prior question. During the BDS Campaign directed at South African apartheid 30 years ago there was some controversy about whether this form of global solidarity was helpful to the anti-apartheid struggle, but there was never any suggestion that the advocacy of BDS was other than a constitutionally protected form of nonviolent protest. To make BDS in the context of Israel a type of hate speech or even a crime is a means to discourage a rising tide of solidarity, including in the United. States and by Jews, with the Palestinian struggle for basic rights, including the right of self-determination.

3: Pompeo also called settlements “part of Israel” and “a recognition of the reality”. While in the Golan Heights, Pompeo also said, “This is a part of Israel and a central part of Israel.” What is the ulterior motives behind such remarks?

Such language, which overlooks and defies the contrary UN consensus concerning the settlements and Syrian territory, is a further expression of the unconditional support of the Trump presidency for these most controversial encroachments on Palestinian aand Syrian territorial rights. Prior American leaders have more cautiously adopted similar kinds of positions by speaking approvingly of recognizing ‘the facts on the ground’ but refrained from distorting international law by claiming that these settlements were established in a manner consistent with international law, which is the salient feature of the Pompeo declarations.

4: Don’t you think that Pompeo’s remarks about the occupied Palestinian and Syrian lands are an example of a Machiavellian approach toward issues?

Such affirmations of territorial aggression by Israel are a reversion to the worst readings of cynical realism attributed to Machiavelli’s The Prince, and in a context where intervening legal and moral developments since his time have made respect for the sovereign rights of both a foreign country (Syria) and of an Occupied Nation and its people (Palestine) foundational principles of peace and security in our world of the 21^st Century. Such remarks should be viewed as indictable expressions by Pompeo of complicity with the commission of Israeli international crimes.

5: What is your opinion of his statement that “settlements can be done in a way that are lawful and appropriate and proper?”

This kind of opinion on Israeli settlements presupposes and necessitates Palestinian consent by a political body legitimately and authentically representing the Palestinian people. Whether the Palestinian Authority is such a body is not a fully settled issue. Overall, it is difficult to imagine such consent being validly given unless there is established one democratic state for both peoples on the basis of complete equality between Jews and Palestinians (including Christians, Druse, Bedouin minorities), a reality that would require the abandonment of the core feature of the 19^th century Zionist project to establish ‘a Jewish state.’

6: Some view Pompeo as the ideologist who manipulates Trump and shapes his approach toward international issues such as the occupied lands, the Paris climate accord or the 2015 Iran nuclear accord. What do you think?

It may be that Pompeo is entrusted with the implementation of the Trump approach to the Middle East, but I am not aware of any evidence that he exerts the kind of influence that his son in law, Jared Kushner, exerted on Trump during recent years. Pompeo is a bureaucrat with his own ambitions, and an outlook, especially on Israel, that resembles that of Trump, and quite likely is more deeply rooted in his real beliefs. In this sense he may be somewhat less opportunistic than Trump. In this connection we should keep in mind that Pompeo is a devout member of the Christian evangelist movement that has been fanatically pro-Israeli and pro-Trump.

7: Are not Pompeo’s visits to the occupied lands viewed as a revitalization of colonialism?

To the extent that Israel is itself properly perceived as a product of late settler colonialism, which has been long delegitimized, Pompeo’s visit and show of support are an anachronistic endorsement of colonialism. I would regard Israel as a remnant of colonialism rather than part of any wider political process of ‘revitalization.’ The remarkable achievement of the Zionist movement was to establish and legitimize, with crucial geopolitical help from the West, a colonial state at a historical time when colonialism was in its death throes elsewhere, that is, an achievement contrary to the flow of history and to contemporary standards of law and morality. Zionist success partly reflected the weight of historical circumstances, above all, the Holocaust, but such an explanation provides no justification for the denial of Palestinian basic rights. I believe that we are living in a post-colonial world order, and this struggle around the future of Israel and Palestine is the last major battlefield, which is not meant to imply that the associated challenges of imperialist geopolitics has been met.

8: Some believe that an inaction by the international community emboldened the Trump administration to go ahead with manipulation of facts and replace international law with violation of international law. What is your view?

There is no doubt in my mind that the weak responses to such prior unlawful Trump pro-Israeli initiatives as moving the American Embassy to Jerusalem, validating Israeli sovereign rights to the Golan Heights, and greenlighting the annexation of portions of the West Bank gave Netanyahu the backing he wanted to go further and further in enacting in internationally unacceptable conduct, including in this connection the recent assassination of Mr. Fakhrizadeh, which is an outrageous act of state terrorism. This act should be viewed given the context of Trump’s last days as president, as a provocation of sufficient magnitude, to push tensions with Iran toward a regional war. There may well be the belief in Israel that Netanyahu should take advantage of these last days of the Trump presidency as he may not enjoy the same level of geopolitical support from Washington during the Biden presidency.

9: Don’t you think that Trump’s and Pompeo’s records have been a great blow to the Republicans?

I wish that I could answer in the affirmative. Unfortunately, not if the reference of your question is to the Middle East where Trump and to a lesser extent Pompeo are appreciated by both political parties in the U.S. for achieving normalization agreements with several Arab states, thereby weakening the long prior effort to isolate Israel diplomatically and economically in the region until a genuine peace with the Palestinians is reached. Many Republicans, mostly privately, are critical of Trump for his mismanagement of domestic issues, especially the COVID pandemic, and for his unwillingness to concede defeat in the recent election, which has posed a serious constitutional crisis and created a dangerous precedent for the future. There is also some muted concerns about stumbling into an unwanted war with Iran, but for most Republicans the bipartisan consensus favorable to Israel remains unquestioned and non-controversial national policy.

10: Such things are being done in 2020. The way the Trump administration treats the occupied lands reminds us of colonialist era. How do the current and next generations will look into such illegal acts?

I believe more and more people in the West are viewing Israeli behavior as a toxic combination of settler colonialism and apartheid racism, and within that frame of reference are becoming more aware that Israel is setting a dangerous example of the persistence of colonial excesses, which have produced decades of suffering for the Palestinian people dispossessed from or victimized in their own society. Europe, too, has been complicit, less actively engaged than the U.S., but still complacent in not accepting their responsibility for leaving this legacy of colonialism insufficiently attended.

Tags: international law, New Anti-Semitism, Pompeo, Settlements, Trump Zionism

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Categories 'New Anti-Semitism', Commentary, Pompeo

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

16 May

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

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

Annexation Foreplay

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

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

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

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

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

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

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

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

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

Israelis Insist Annexation is About ‘Security’

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

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

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

The Macabre Dance

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

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

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

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

Gangster Geopoliticss

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

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

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

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

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

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

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

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

This leaves unattended the awkward gap between the

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

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

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

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

Respecting International Law: A Practical Argument

20 Feb

[Prefatory Note: International law, as so much else of value, has fallen on hard times,

violated and ignored, where applicable and needed. Although this is a deplorable state of affairs as the planet burns and vulnerable people suffer from ecological hazards and predatory geopolitics, it is the time to heighten struggle, and not sit home in despair. This essay in a slightly modified form was written at the request of Fikir Turu, an online source of commentary operating from Turkey, and published in Turkish. An English version was also published in Transcend Media Service, TMS, 17 February 2020.]

Respecting International Law: A Practical Argument

International law disappoints in so many ways, making it easy to overlook why, despite its flaws, it remains valuable and indeed vital for human wellbeing. I put here to one side its usefulness for managing the touristic, trade and investment, maritime, and networking dimensions of international and transnational life, which most of us take for granted until something goes wrong. And I also take note of the inability of international law to fulfill the hopes of idealists who suppose that law on its own can banish war or ensure that international disputes are resolved by applying law rather than through power leveraging. If we are attentive to current events, as the media reports war/peace issues we would quickly conclude that invoking international law in these high profile settings is to be out of touch with how sovereign states go about pursuing their most important economic and political interests, which in areas touching on security is by trusting their military capabilities and alliance relations, and not by believing that as long as their actions and policies stay on the right side of the law, they have nothing to worry about.

Against such a background, my assessment suggests that international law is more relevant even in war/peace settings than what the men who still make most of the big foreign policy decisions realize. A major point here is a reflection of the global turn toward governments led by anti-democratic political figures who gained power by winning free elections. The voting public in many leading countries seems ready to support governments that do away with civil liberties, the protection of basic human rights, and even move to subvert the independence of the judiciary and legislative branches of government. Some of the policies of such autocratic leaders violate fundamental norms of international law as when a minority is persecuted by ethnic cleansing or genocidal policies, or in more limited ways by denying rights of free expression to dissenting voices in the media, among opposition leaders in and out of government, and at universities.

In such circumstances, it remains useful for supporters of true freedom to be able to appeal to international law as an authoritative yardstick by which to assess the government behavior alleged as being abusive. In this regard, the recourse of Gambia to the International Court of Justice to challenge the genocide of the Rohingya by the government of Myanmar. Similarly, the current effort of Palestine to persuade the International Criminal Court to investigate alleged crimes against humanity committed by Israel against the Palestinian people is illustrative of the political significance of international law even if unable to regulate the offending behavior. These are both high profile instances of apparent international crimes that could otherwise be hidden behind the heavy curtain of national sovereignty. The guidelines of international law are crucial in raising the voices of public opinion and even some government on such issues of moral salience in an effective manner, and essential to gain access to international institutions in some circumstances of state crime so as to challenge, and at least document, criminality in an influential manner.

By pointing out such options, it is not meant to suggest that the leadership in Myanmar or Israel will necessarily repudiate their past policies, or alter their abusive behavior. What is achieved is some lessening of legitimacy, and this may matter enough to moderate and deter, if not transform behavior. More liberally inclined governments may be less likely to enter favorable relationships or agree to participate in cultural or sporting events with gross offenders of human rights and basic legal norms. These kinds of subtle acknowledgements of wrongdoing do have an impact, although rarely acknowledged, until some momentous change unexpectedly takes place, as for example when South African apartheid submitted to international pressure and dismantled apartheid. An interesting legal example occurred back in the 1980s when the United States was mining the harbors of Nicaragua to exert unlawful pressures on a Marxist-oriented government in control of this tiny country. The Nicaraguan Government could not hope to challenge by force American policies that seemed to violate the rule of international law that condemned all uses of international force other than in carefully defined instances of self-defense, but it did have recourse to the International Court of Justice due to an obscure treaty that conferred such an option if a dispute between the two governments could not be settled by direct negotiations. The U.S. refused to participate in such a judicial proceeding, but despite this, the World Court in The Hague accepted the case, and a majority of its judges agreed that Nicaragua had a convincing legal grievance, and so declared. The U.S. judge on the highest UN judicial tribunal defended the American policies, and Washington denounced the decision. And yet, a few months later the U.S. stopped mining Nicaragua’s harbors, and in effect, covertly complied with the decision upholding the applicability of international law.

Even Myanmar mounts its strongest possible defense by hiring a team of Western international law experts to present its case. Israeli strategists and think tanks warn the government that attacks on the legitimacy of Israel, that is undertakings complaining about its flagrant lawlessness, are bigger threats to Israeli security than is the Palestinian armed struggle. Having law and morality on one’s side has proved a bigger overall asset in violent political conflicts since 1945 than dominating the battlefield. The United States lost the war in Vietnam during the 1960s despite controlling the conventional military dimensions of the conflict, as did the Soviet Union when it intervened more than a decade later in Afghanistan. The major governments in the world are slow to learn from this kind of failure because militarism is embedded in their governing DNA. This reflects the outmoded faith in military superiority as the principal engine of history as well as the bedrock of national security. What is overlooked is that ever since World War II, people not armies have won the characteristic conflicts of the last 75 years, and their highest aspirations for self-determination and independent political statehood have been aligned with international law. In this sense, large states, as well as small and medium states, would themselves be much better off if their policies in the war/peace and security areas adhered to international law guidelines rather than followed the discretionary dictates and spending priorities of hard power realists. To the extent this assessment of the changed role of power in international relations is correct, China stands out as comprehending the benefits of embracing soft power realism, by way of trade, investment, and clever diplomacy is the manner to expand influence and raise stature in the 21^st century. In this fundamental sense, international law, which can be conceived of as aa soft power calculus in relation to the use of force, has an untested potential to guide governments and their citizens toward a peaceful, prosperous, and ecologically sustainable future, but only if militarist myths and military/industrial/media complexes are discarded.

International law also provides the weak and vulnerable with a means to build support for their struggles against abusive uses of state power, including finding law-related ways to resist autocratic leaders who rely on regressive ‘lawfare’ to stifle political dissent and suppress freedom of expression. For instance, those victimized can appeal their cases to special rapporteurs of the UN Human Rights Council who can give political visibility, moral/legal credibility, and sometimes exert effective pressure on governments alleged to be violating basic rights. The elected autocrat of the Philippines, Rodrigo Duterte, uses his manipulation of the legislative and judicial branches of government to frame and imprison political opponents and dissenters, while solidarity initiatives respond by invoking international law standards and procedures to challenge such unlawful behavior, in effect, recourse to progressive lawfare tactics.

Finally, civil society activism formulates its agendas, and builds its support, by illuminating the lawlessness of governments, especially in relation to geopolitical actors that enjoy effective impunity under international law. There are many such uses of international law, going back to the tribunals on the Vietnam War organized in the late 1960s with the backing of Bertrand Russell, passing legal judgment on the violations of Vietnamese sovereignty by American-led military intervention. Another notable example was the Iraq War Tribunal of 2005 held in Istanbul, bringing together legal experts and moral/cultural personalities to pass judgment on the spurious claims that the U.S./UK military attack and occupation of Iraq were consistent with fundamental norms of international criminal law. Such a legal proceeding did not end the occupation but it strengthened the political will of those who opposed such policies as well as providing a documentary record of geopolitical lawlessness that could not be compiled if an international legal framework did not exist and enjoy the formal endorsement of those states whose behavior was being judged.

In the end, we can and should still lament the shortcomings of international law, but if we seek an international order that respects rights and is more peaceful, it is vital to appreciate the present and potential role of international law. It can offer constructive policy guidelines for policymakers and leaders, better aligning foreign policy with national interests given the increasing limits on the utility of military force under contemporary condition. It also allows civil society activism to ground their solidarity initiatives on a foundation of international law rather than on mere political passion, and can serve to deter some governments from pursuing policies that violate international human standards and would likely weaken their reputation as responsible members of world society. The work of some international NGOs, such as Amnesty International and Human Rights Watch, not only depends on the existence of legal standards, but shows that many powerful governments care enough about their reputations at home and abroad to curb their lawlessness if confronted by prospects of exposure. Of course, it would be wrong to expect too much from a reliance on international law in this period when even those states that claim the legitimacy of political democracy are choosing leaderships and adopting policies that defy such values and practices. Many of us are discovering that procedural democracy, as principally expressed by free elections and independent political parties, offers little assurance that the political winners will adhere to the rule of law, that is, the norms and institutional arrangements of substantive democracy, when in positions of political authority. Such disillusionment is accentuated by the growing evidence that such leaders retain their popularity with the citizenry even when they are unscrupulous lawbreakers. And, of course, less political and moral friction is present when the laws being twisted or broken pertain to foreign policy. International law is not reinforced at this point by strong populist expectations of compliance, although rule of law considerations may be invoked when a state is targeted for intervention or sanctions.

Tags: Decline of International Law, geopolitical actors, international law, practical guidelines, rise of autocrats, rule of law

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Categories Commentary, Decline of, Duterte, International & Global Law, Myanmar genocide, Reflections

The Decline of International Law: Reflections of a True Believer

27 Jan

[Prefatory Note: This post was initially published on January 27, 2020 in a Turkish online publication, Fikir Turu, and is slightly modified below.]

The Decline of International Law

There is widespread agreement that international law is experiencing a sharp decline in

relevance when it comes to foreign policy, especially in the eye of the public. At first glance,

this seems surprising. The digital age and economic globalization require more than ever a reliable regulatory framework to enable international transactions of many types. The growing complexity and networked style of international relations would lead most observers to anticipate an increased role for international law, and in many spheres of transnational activity, this has happened. In this respect, the public is somewhat misled when it generalizesits impression of decline to the whole of international.

The impression of decline derives from high profile issues of governments acting without regard for international law, especially in the area of peace and security. A recent such example is the drone killing of a leading Iranian general, Qasem Soleimani, while on an apparent diplomatic visit to Baghdad at the invitation of the Iraqi Prime Minister. More revealing, perhaps, is the seeming international disregard of flagrant war crimes by the Assad Government during the civil strife that has brought such mass suffering to the Syrian people since 2011. Also, the genocidal massacres of the Rohingya people in Myanmar or the military coup staged by General Sisi in 2013 against the elected Egyptian government of Mohamed Morsi raised few cries of official protest about such flagrantly unlawful behavior. Even the gruesome murder of Kamal Khashoggi in the Saudi Consulate in Istanbul last year, while bringing tears to the eyes of many, brought no meaningful international response to such an outlandish state crime.

The Trump presidency has reinforced this impression of decline, bordering on irrelevance, by its unilateralism in foreign policy—the 2018 move of the U.S. Embassy to Jerusalem in violation of the UN consensus that the future of the city be determined by negotiations; the legalization of Israeli settlements in the West Bank despite their clear violation of Article 49(6) of the Fourth Geneva Convention and prior Washington policy, the disruptive withdrawal from the from the 2015 Iran Nuclear Agreement (JCPOA) and the Paris Climate Agreement finalized the following year. Overall, global issues that are reported on by the media strengthens this impression that international law is not respected by many governments, and nothing adverse happens to them as a consequence.

Yet there is more to international law than this negative impression leads us to believe. The entire fabric of the modern world is dependent on a generally respected international law framework. Without this framework every standard activity from tourism to diplomacy to trade and communications, as well as maritime and commercial air safety, would produce chaos on a grand scale. The reality is that we take most of the international law dimensions of the modern world for granted, never think about it, or if we do, we are grateful for bringing this kind of order into our everyday activities. On a larger scale governments and businesses plan many large-scale long-term operations on the assumption that international law guidelines can be relied upon. In other words, in many spheres of international life, international law is dependable, and is mutually beneficial both for ordinary people and for powerful actors.

Yet, the impression of decline is real when it comes to peace and security, human rights, and cooperative global problem-solving for such challenges as climate change and migration. It was not always quite this way. The United States, in particular, but many important countries believed in extending the rule of law as far as possible in international arenas. There was a widespread belief about World War II that a law-governed world order was essential to avoid the disastrous recurrence of major warfare and another economic collapse of the magnitude that brought on the Great Depression of the 1930s. Unregulated nationalism was seen as a severe threat to a peaceful and prosperous future for humanity, including those states with a geopolitical agenda. Even the development of a human rights architecture within the UN embodied the liberal faith that adherence to a common set of legally grounded values, as qualified by civilizational diversity, would be of benefit to the whole of humanity.

Yet, there were always major limitations to what could be achieved by a law-oriented approach to world order. Even the UN was framed in such a way that it exempted the most powerful, and generally the most dangerous states, from an obligation to comply with international law, including even the UN Charter. This exemption was signaled to the world by making the five dominant governments in 1945 permanent members of the UN Security Council, and more consequential, conferring on them a right of veto, which was a way of making international law inapplicablewhenever it was really needed to curb the behavior of these large states and their smaller friends who could always be shielded from legal obligations. Such shielding has been long done most spectacularly by the United States in relation to Israel. The best takeaway is that for geopolitical political actors, international law is a matter of convenience, not obligation.

There are also issues bearing on the effectiveness of international law that arise from the decentralized nature of world order. States even in the aftermath of a great war that caused widespread forebodings about the future were never willing to entrust the UN with enforcement capabilities. What enforcement occurred was the work of geopolitics, the willingness of large states to intervene for the sake of preventing severe criminality, itself usually instances of dubious legality. Arguably, this was what happened in 1999 when NATO acted to prevent Serbian criminality in Kosovo or when international sanctions were imposed by various countries on South Africa to bring apartheid to an end can be used as examples of extending international law in the face of state sovereignty and through circumventing a geopolitical veto. Yet depending on geopolitics to uphold international law is generally not a good idea. Geopolitical motivations are self-interested, strategically contoured, and ideologically driven, with the language of international law, democracy, and human rights often used as a cover to soften criticism. Over the decades, American sanctions were imposed on Cuba because of its Marxist orientation toward governance while countries with far worse human rights records, such as Guatemala or Chile under Pinochet, were not punished because they were allies. In other contexts, such as the struggle of the people of Tibet, Chechnya, and Kashmir, the costs of confronting China, Russia, and India were deemed impractical, with costs far too high to justify intervention, and to the extent concerns were expressed, it was done by way of hostile propaganda in which the moral message was submerged beneath clouds of partisanship.

Yet these structural problems of world order are also not the whole story. World history, which seemed in the struggles against fascism and colonialism and, later, in the collapse of the Soviet Union, to be heading toward greater reliance on international law, the UN, human rights, and the belief that only constitutional democracies were legitimate, but something happened to reverse these trends. What has happened in the 21^st century is the rise of authoritarian leadership in virtually every important country on the planet, often by anti-democratic governing processes, but more surprisingly, by electoral choices in functioning constitutional systems such as India, Brazil, Philippines, and the United States, among others. The trend is global, which suggests structural dimensions, but each national narrative reflects particular conditions. Some explanations have stressed populist backlashes against neoliberal globalization and the impact of many dimensions of inequality it has brought about or the related effort to strengthen feelings of national identity and community in the face of migrants or the homogenizing impacts of transnational franchise capitalism. The cumulative effect of these developments is to elevate even the most arbitrary authority of the national leadership beyond any notion of accountability to international rules and institutions, making the perception of decline real, alarming, fostering a nihilistic mood at the very historic moment when constructive cooperative action is desperately needed. Added to these negative features of the present reality, current prospects for reversing this decline are not favorable seem virtually non-existent.

Yet we can take a small comfort in the radical uncertainly of the future in which what is anticipated rarely happens. Less visible contradictory forces are present, mostly below the surface, making despair inappropriate, and calling on all of us to act on and struggle for the future we seek. It is this uncertainty that alone allows us, even mandates us, to be hopeful about the future, and to act as citizen pilgrims seeking a better future for humanity.

Tags: 'Voluntary' International Law, citizen pilgrim, geopolitical exceptionalism, international law, regulatory imperatives, transnational legality

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Categories Commentary, Decline of International Law, Geopolitical Veto, Reflections

Facing the Global Crisis

16 Jan

[Prefatory Note: The post below is a somewhat amplified version of an interview with C. J. Polychroniou, journalist and professor of political economy at West Chester University, which was published on January 7, 2020 in the online journal, Global Policy. As the interview was conducted in December 2019, it fails to address the various disruptive consequences of the assassination of Qasem Soleimani, including the violation of Iraqi sovereignty, Baghdad being the site of the drone attack, as well as the risks of war arising from an escalating tit-for-tat cycle of actions and reactions. Given growing tensions between the interconnectedness of the world and the state-centric character of international law, including contradictions between totalizing and disregarding territorial sovereignty, state-centric world order is being increasingly marginalized by geopolitical behavior that both generates and suppresses transnational political violence. A normative crisis with structural implications exists, and is not even being widely appreciated much less adequately addressed. The continuing disregard of this crisis adds to grave risks of aa catastrophic future for humanity, with severe spillover to the natural surroundings shared with non-human species.]

Facing the Global Crisis

Q1. I want to start this interview on the state of global affairs near the end of the second decade of the 21st century by moving from the abstract to the concrete. To begin with, it’s regarded as axiomatic that the postwar international liberal order is fracturing and that we are at the same time in the midst of a geopolitical transition where the most prominent characteristic seems to be the decline of the United States as a global superpower. With that in mind, can you offer us a panoramic perspective on the contemporary state of global affairs? What do you consider to be the primary changes under way, and the emerging challenges and threats to global peace and stability?

Response: There are many crosscutting tendencies now evident at the global level. At the very time when globalizing challenges are intensifying, the mechanisms available for regional and global cooperation are becoming dangerously less effective. The failure to address climate change, so clearly in the global public interest, is emblematic of a dysfunctional world order system. This failure can be further delineated by reference to two distinct, yet interrelated developments. The first characterized by a vacuum in global leadership, which reflects both the overall decline of the United States as well as its explicit renunciation of such a role by the Trump presidency. Trump proudly proclaims that his political agenda is exclusively dedicated to the promotion of American national interests, declaring defiantly he was elected president of the United States, and not of the world. The second broader development is the rise of autocrats in almost every important sovereign state, whether by popular will or through imposed rule, resulting in the affirmation of ultra-nationalist approaches to foreign policy, given ideological intensity by chauvinistic and ethnic hostility toward migrants and internal minorities. This kind of exclusionary statism contributes to the emergence of what might be called ‘global Trumpism’ further obstructing global problem-solving, shared solutions to common problems, and global expressions of empathy for human suffering. A discernable effect of these two dimensions of world order is to diminish the relevance and authority of the United Nations and of international law, as well as exhibiting a decline in respect for standards of international human rights and a disturbing indifference to global warming and other global scale challenges, including toward maintaining biodiversity and upholding the stability of major global rainforests.

Overall, what has been emerging globally is a reinvigoration of the seventeenth century Westphalian regional system of sovereign states that arose in Europe after more than a century of devastating religious wars, but under vastly different conditions of connectivity that now pose dire threats to maintaining minimum world order and to the wellbeing of peoples throughout the world. Among these differences are the dependence upon responsible internal behavior by governing processes at all levels of social interaction in an era of growing ecological interdependence. The tolerance of fires in the Amazon rainforest by the Brazilian government, supposedly for the sake of economic growth, by indulging the interests of agrobusiness and logging, endangers a vital global source of biodiversity as well as depletes essential carbon capturing capabilities of this vast forest area, yet there is no way under existing international norms to challenge Brazil’s sovereign prerogative to set its own policy agenda, however irresponsible with respect to its own ecological future, as well as that of its region and the world.

At the same time, there has emerged doctrine and technology that defies territorial constraints, and gives rise to contradictory pressures that subvert the traditional capabilities of states to uphold national security on the basis of territorial defense. On the one side, transnational extremism and criminality exposes the symbolic and material vulnerability of the most militarily powerful states as the United States discovered on 9/11 when the World Trade Center and Pentagon were allegedly attacked by a small group of unarmed individuals. Added to this are threats to all people from hacking and surveillance technologies that are not subject to territorial regulation. Responses by way of retaliatory strikes or covert operations directed at the supposed extraterritorial source of these attacks and threats, according to a global mandate associated with counterterrorist warfare and transnational law enforcement generate new patterns of lawlessness in the conduct of international relations. Technological and doctrinal innovations associated with the use of precision guided missiles, cyberspace, and pilotless drones, as well as satellite surveillance are producing new conceptions and experiences of boundaryless war zones. The world is becoming a battlefield for both geopolitical actors and a variety of non-state actors in a series of unresolved transnational struggles and undertakings. Additionally, there are opening new uncertain frontiers for 21^st century warfare involving cyber assaults of various kinds, evidently already tested and used by the U.S. and Israel in their efforts to destabilize Iran, as well as new initiatives by a few states to militarize space in ways that seem capable of threatening any society on the face of the planet with instant and total devastation. One salient feature of these developments is the unacknowledged significance of neither adversary being a Westphalian sovereign state as generally understood by international relations theory and practice, while ‘political realism,’ which remains largely unchallenged, is more and more out of touch with these political realities subverting statst world order.

Under analogous pressures, the world economy is also fragmenting and seeking a reterritorialization of trade and investment, not only behaviorally but doctrinally. Trump’s transactional mode of operations challenges the rule-governed global system established after World War II, which relied on the Bretton Woods institutions and the World Trade Organization. The economic dimensions of resurgent nationalism also give rise to trade tensions, with real prospects of major trade wars, reminding expert observers of the ‘beggar-thy-neighbor’ atmosphere in the early 1930s that gave rise to the Great Depression. Underneath this reterritorialized approach to political economy seems to be what amounts to a mostly silent revolt against neoliberal globalization, and its encouragement of transnational trade and investments based on market-based opportunities, as guided by the transnational efficiency of capital and openness of national markets rather than the wellbeing of people, including environmental protection. A major source of dissatisfaction with traditional politics in democratic societies seems associated with increasing economic inequality, causing stagnation, or worse, of middle and lower class living standards, while producing incredible accumulations of wealth at the very apex of society. These trends have unleashed an enraged populist assault on establishment institutions, including traditional political parties, being blamed for enriching upper elites while suppressing the wellbeing of almost entire societies, with an astonishing 99% being left behind. In the American setting, the left/right expression of this new classism is reflected in the Trump proto-fascist base and the Sanders mobilization among youth and disaffected constituencies.

In this downward global spiral, additional negative factors are associated with poor management of ending the Cold War, and the accompanying collapse of the Soviet Union. I would point to three principal negative impacts: (1) the failure of the United States as triumphant global leader to seize the opportunity during the 1990s to move the world toward greater peace, justice, and prosperity by strengthening the UN, by reallocating resources from defense to civilian infrastructure, and by initiating denuclearization and demilitarizing policies regionally and worldwide; (2) the degree to which the Soviet collapse led to a world economic order without ideological choices for political actors (‘there is no alternative’ mentality). This pushed the logic of capitalism toward the kind of inhumane extremes that had existed in the early stages of the Industrial Revolution. As long as socialism was associated with Soviet leadership it offered an ideological alternative to alienated segments of society, which created strong political incentives in the West to exhibit ethical concerns for human wellbeing, and social protection frameworks moderating the cruelty of minimally regulated market forces; in effect, for its own sake capitalism needed the rivalry with socialism to maintain an ethically acceptable ideological composure; (3) the sudden withdrawal of Soviet balancing influence in several regions of the world, especially the Middle East, led to order-maintaining cycles of oppressive patterns of governance, U.S. regime changing interventions, and political turmoil and prolonged strife causing massive suffering, famine, and devastation.

This combination of domestic authoritarianism, transnational conflict configuratons, and state-centric foreign policy is inclining the world toward ecological catastrophe and geopolitical uncertainty, even chaos. This pattern is accentuated by world economic orientations that are oblivious to human and global interests, while slanting national interests toward the ultra-rich. In effect, the political future for formerly leading democratic states is now more accurately described as a mixture of autocracy and plutocracy with fascist overtones of the strong leader and the stereotyping of ‘the other’ as an enemy to be excluded or destroyed.

One symptom of these implosive developments is to call attention to the altered role of the United States in this overall conjuncture of historical forces. On the one side, is the reality of U.S. decline, accentuated by the behavior of Trump since 2016 and the rise of China, which reflects the impact of this impulsive and anti-globalist leader and national mood, but also exhibits some longer deeper trends that transcend his demagogic impact. The most important of these is the failure to learn from the reduced effectiveness of military force with respect to the pursuit of foreign policy goals, given changes in the nature of political power and international status, especially in relations between the West and non-West. Costly interventions in Vietnam, Afghanistan, and Iraq have all ended in political failure, despite U.S. military and battlefield dominance and a strong political commitment to the mission. The U.S. reaction has been to reframe tactics rather than to appreciate the enhanced capabilities in the post-colonial world of militarily vulnerable countries to mobilize prolonged and eventually effective resistance to interventions from the West. Such reframing has led to the repetition of failed interventions in new contexts. In this narrow regard, Trump’s seeming repudiation of regime-changing wars was and is more realistic than the Pentagon’s tendency to return to the drawing counterinsurgency and counterterrorist drawing boards to figure out how to do the job better next time.

Yet Trump’s militarism is evident in other forms, including seeking to extend military frontiers to outer space, by boasts about investing in producing the most powerful military machine in human history, and by the reckless war-mongering diplomacy toward Iran. In this respect, the U.S. not only is increasing risks of global catastrophe, but also inadvertently helping its international rivals to gain relative economic and diplomatic advantages. A crucial explanation of America’s likely continuing decline results from two refusals: first, a recognition of the neutralization of military power among major states by the mutually destructive character of warfare and secondly, an appreciation of the nature of asymmetric conflicts resulting from the rising capabilities of national resistance frustrating, and generally defeating, what had once been relatively routine and cost-effective colonial and imperial operations.

Another source of decline is that the kind of confrontations that existed during the Cold War no longer seems to exert nearly as much influence on security dimensions of world order as previously. Most European states feel less need for the American nuclear umbrella and the safety afforded by close alliance relations, which translates into reduced U.S. influence. This shift can be observed by the degree to which most states currently entrust their defensive security needs to national capabilities, somewhat marginalizing alliances that had been formally identified with U.S. leadership. In this regard, the bipolar and unipolar conceptions of world order have been superseded by both multipolarity and statism in the dynamic restructuring of world order since the collapse of the Soviet Union and the rise of China.

The profile of American decline, with respect to the international policy agenda could be rather abruptly altered, if not reversed, by an internationalist post-Trump foreign policy. This would be particularly evident, in all likelihood, with respect to reaffirming cooperative efforts regarding climate change, reviving the 2015 Paris Agreement, and calling for a more obligatory approach to international regulatory arrangements. Of course, a revived American bid for global leadership would be further exhibited by certain foreign policy moves such as seeking balance in addressing Israel/Palestine relations, lifting economic sanctions from such countries as Cuba, Venezuela, and Zimbabwe, renewing adherence to the JCPOA (Nuclear Agreement) with Iran, and urgent calls for strengthening the role and relevance of the United Nations and respect for a global rule of law reconfigured to take account of the transnational features of the digital age with its connectivities and networks joining non-state actors.

In a sense, the assessment and contours of American decline, reflective of so many factors, will become clearer after the 2020 elections. If Trump prevails, the decline thesis will be confirmed. If a centrist Democrat, say Biden, prevails, it will likely create a sense of relief internationally, along with a temporary suspension of doubt about the reality of U.S. decline, but will not end the credibility of the longer run decline hypothesis as a Democratic Party president, such as Biden, will not challenge the Pentagon budget or the militarism that underpins American policy for the past 75 years. If, as now seems highly unlikely, the Democrats nominate a progressive candidate, say Sanders or Warren, and (s)he is able to gain enough support in Congress, the trends pointing to further decline might not only be suspended, but possibly reversed. Addressing inequality arising from the plutocratic allocation of benefits resulting from neoliberal globalization and undoing the excessive reliance on military approaches to foreign policy are the only two paths leading to a sustainable renewal of American global leadership and prospects for a benevolent national future.

Q2. Do you detect any similarities between the current global geopolitical condition and that of the era of imperial rivalries prior to the outbreak of World War I?

Response: The imperial rivalries, at the root of the stumble into major warfare, were much more overt in the period preceding World War I than is the case today. Now imperial strategies are more disguised by soft power expansionism as is the case with China or geopolitical security arrangements and normative claims as is the American approach, but the possibility of an unwanted escalation in areas of strategic interaction are present, especially in areas surrounding China. Confrontations and crises can be anticipated in coming years, and without skillful diplomacy a war could result that could be more destructive and transformative of world order than was World War I.

There is also the possibility of hegemonic rivalry producing a major war in the Middle East, as between Saudi Arabia, Israel, and the United States on one side and Iran and Russia on the other side. The Syrian War prefigured on a national scale such hegemonic rivalry that could now recur on a regional scale. A more optimistic interpretation of developments in the Middle East is to suggest that the stability of the Cold War era might soon reemerge in light of Russian reengagement, which could restore the balance imposed earlier, and seems preferable to the turmoil and confrontations of the last 25 years. It would be prudent to take note of the World War I context to remind political leaders that they risk unwanted sequences of events if promoting aggressive challenges to the established order in regional or global settings. Yet the killing of General Qasem Soleimani in early January 2020 came close to setting off a chain reaction of escalating violent incidents that could have ended in a major war between Iran and the United States of intensity and indefinite scope.

Of course, triggering conditions prior to World War I were concentrated in Europe, whereas now it could be argued that the most dangerous situations are either geographically concentrated in the Middle East or in a variety of regional circumstances where coercive diplomacy could trigger an unintended war either on the Korean Peninsula or in relation to China where interests and ambitions collide in the Western Pacific and South China Sea.

Graham Allison has written a widely discussed book, Destined for War: Can America and China Escape the Thucydides Trap?(2017), which argues that throughout history when the dominance of a state is challenged by a rising power a major war has frequently resulted to establish geopolitical ranking. Of course, circumstances have changed drastically since the time of Thucydides, due to the possession of nuclear weapons on both sides, a fact that is likely to encourage geopolitical caution as risks of mutual catastrophe are quite evident. At the same time complacency is not warranted as governments have not changed their reliance on threats and bluffs to achieve their goals, and the possibility of miscalculation is present as antagonisms climb escalation ladders.

More broadly, the existence of nuclear weapons, their deployment, and doctrines leading to their use in certain situations create conditions that are very different than what existed in Europe more than a century ago. Yet there is one rather frightening similarity. Threat diplomacy tends to produce conflict spirals that can produce wars based on misperception and miscalculation, as well as accident, rogue behavior, and pathological leadership. In other words, the world as now constituted, as occurred in 1914, stumble into an unwanted war, and this time with casualties, devastation, and unanticipated side effects occurring on a far greater scale.

Finally, there were no serious ecological issues confronting the world in 1914 as there are at present. Any war fought with nuclear weapons can alter the weather for up to ten years in disastrous ways. There is the fear validated by careful scholarly study that ‘a nuclear famine’ could be produced by stagnant clouds of smoke that would deprive the earth of the sunlight needed for agriculture for a period of years. In other words, the consequences of a major war are so much more serious that its avoidance should be a top priority of any responsible leader. Yet, with so many irresponsible leaders, typified by Donald Trump, the rationality of caution and that would seem to prevent large scale war may not be sufficient to avoid its occurrence. Also, the mobilization of resources and the focus of attention on an ongoing war, or even its threat, would be so occupying as almost certainly to preclude efforts, however urgent, to address global warming and other ecological challenges.

Q3. Given that the historical conditions and factors that gave rise to Cold War policies and institutions have vanished, what purpose does NATO serve today?

Response: Although the conditions that explained the formation and persistence of NATO were overcome by the collapse of the Berlin Wall in 1989, and of the Soviet Union a few years later, NATO remained useful to some of its members for several reasons. For the United States, it kept the U.S. engaged in Europe, and sustained its role as alliance leader. For the major European powers, it represented a security guaranty in the event of a revived Russian threat, and lessened internal pressures to develop expensive European military capabilities that did not depend on American participation. The Kosovo War in 1999 displayed a European consensus to transform NATO into an intra-European peace force, while the Libyan War of 2011 displayed a misleading willingness to manipulate the UN into authorizing NATO to engage in a regime-changing out of area military intervention that not only weakened the legitimacy of the post-Cold War UN and harmed Libya, but also understandably eroded trust in UN procedures on the part of Russia and China that had been persuaded not to oppose a decision at the Security Council for a strictly limited humanitarian intervention but not for NATO sponsored regime change.

The NATO alliance should be disbanded in the interest of world peace and stability. Its only real function since 1989 has been to further the geopolitical goals of the United States, and to a lesser extent, France and the UK. The persistence of NATO after its Cold War rationalization was undercut exemplifies the refusal of the West to make the structural adjustments that could have expressed an intention to make a transition from a pre-war environment of strategic confrontation that characterized the Cold War to a post-war atmosphere of dealignment and demilitarization. Had such a transition occurred, or even been attempted, we would now most likely be living in more positive historical circumstances with attention to the real economic, political, and ecological challenges to human wellbeing now and in the future being addressed. We would not need the awakening alarms being set off by a 16 year old Swedish girl!

Q4. Trump’s foreign policy towards the Middle East is unabashedly pro-Israel, while also supportive of Erdogan’s grand vision for Turkey and the Arab world. Can you explain for us this apparent anomaly?

Response: It may be intellectually satisfying to give a coherent spin to Trump’s seemingly antagonistic policies in the Middle East, but I feel it conveys a false sense of plan and strategy beyond the play of personality and ad hoc circumstance. The most that can be claimed it that there is a kind of hierarchy in arranging American foreign policies priorities, yet overall, lacking any sense of regional grand strategy. At the top of the Trump policy pyramid seem to be upholding the two ‘special relationships’ with Israel, first, and Saudi Arabia, second. Turkey is somewhat supported because of the seeming personal rapport between Erdogan and Trump, and partly also for reasons of continuity of alignment and economic trade relations. Iran is a perfect regional enemy for the United States, which helps us understand why it have been demonized and subjected to crippling sanctions and war threats for the past 40 years. Iran is antagonistic to Saudi ambitions to assert its regional hegemony and to Israel because of its pro-Palestinian, anti-Zionist stance, and not a trading partner or strategic ally with the United States ever since the revolutionary overthrow of the Shah in 1979. Besides, Iran as the leading Shi’a state in the region is a sectarian foil for the Gulf/Egyptian Sunni affinities. Besides, Trump’s insistence on repudiating Obama’s initiatives in the region led to the American withdrawal from the Nuclear Program Agreement negotiated in 2015 (JCPOA, that is, Joint Comprehensive Program of Action), has led to the collapse of an agreement that seemed a breakthrough for peace at the time. This anti-Iran agenda is being carried forward at considerable risk and expense, as well as producing mass hardship for the Iranian people over a period of many decades.

Although Trump campaigned on a pledge of disengagement from senseless regime-changing interventions of the past in the Middle East, especially the attack on and occupation of Iraq since 2003, it has been a difficult policy to implement, especially in relation to Iran, and to some extent Syria. This seems to reflect\ American deep state resistance to all demilitarizing moves in the Middle East for strategic reasons, as well as Trump’s quixotic and ambivalent style of diplomacy.

As far as Turkey is concerned, there seems to be some continuity in Erdogan’s foreign policy, which is to support the Palestinian national struggle and to favor democratizing movements from below, especially the Muslim Brotherhood, but to avoid entanglements of the sort that led to a major foreign policy failure in Syria after 2011, and recently, an announced willingness to support the Libyan government against insurgency. Also Turkey has under Erdogan’s leadership supported major institutional reform at the UN by questioning the hold of the permanent members of the Security Council on UN decision-making, typified by the slogan ‘the world is greater than five.’).

Q5. Do you see China as emerging any time in the near future as a global superpower?

Response: I think China is already a global superpower in some fundamental respects, although not a global leader in the manner of the United States in the period between 1945-2016. Whether it has the political will to play a geopolitical role beyond its East and South Asian nearby regions is difficult to predict. The top Chinese officials seem to sense a dangerous vacuum and inviting opportunity resulting from the withdrawal of the United States from its leadership position. At the same time, the Chinese themselves seem aware of their lack of experience beyond the Asian context outside of the economic sector, are preoccupied with domestic challenges, and are aware that Chinese is not a global language nor the renminbi a global currency. For these reasons, I expect China to stay largely passive, or at most defensive, when it comes to the global geopolitical agenda, and use its considerable leverage to promote multipolarity and restraint in most international venues.

At the same time, China’s superpower status can be affirmed in two different fundamental respects: as the only credible adversary of the United States in a major war and as a soft power giant when it comes to spreading its influence beyond its territorial limits by a variety of non-military means, most spectacularly by its Road and Belt Initiative, the largest investment in an integrative undertaking in the world. If soft power status is the best measure of influence in a post-political world order, then China may have already achieved global leadership if history is at the dawn of a new period in which the role of military power and conquest as the principal agent of change is morphing toward obsolescence. Arguably the most telling symptom of American decline is its gross over-investment in military capabilities despite enduring a series of political setbacks in situations where it dominated the battlefield, which when coupled with the failure to address the decaying domestic infrastructure and refusing to fill the gaps of social protection. Perhaps, the Vietnam War is the clearest instance of total military superiority resulting in the loss of a war, but there are other notable instances (Afghanistan, Iraq).

Q6. If you were asked to provide a radical vision of the world order in the 21st cedntury, what would it look like?

Response:This is a difficult assignment. I would offer two sets of response, but with a realization of the radical uncertainty associated with any conjectures about the future of world order. My responses depend on some separation between considerations of policy and of structure. I respond on the basis of my tentative diagnosis of the present reality as posing the first bio-ethical-ecological crisis in world history.

With respect to policy, I would emphasize the systemic nature of distinctive present challenges, global in scale and scope. The most severe of these challenges relate to the advent of nuclear weapons, and the related geopolitical policy consensus that has opted for a nonproliferation regime rather than a denuclearizing disarmament alternative. Such a regime contradicts the fundamental principle of world order based on the equality of states, large or small, when it comes to rights and duties under international law. It does, however, reflect adherence to the fundamental norm of geopolitics that is itself embedded in the UN Charter, which acknowledges inequality with respect to rights and duties, evident in other spheres of international life, including accountability for international crimes, as acknowledged by the demeaning phrase, ‘victors’ justice.’

To address the challenges to world order that threaten the peoples of the world does not require overcoming political inequality altogether, but it does require attaining two goals that involve radical changes in political behavior: 1) respect for and adherence to international law and the UN Charter by all states, especially the most powerful, which would at least entail national self-discipline and the elimination of the right of veto at the UN, but not necessarily permanent membership in the Security Council; 2) the strengthening of the autonomy of the United Nations in relation to the peace and security agenda by creating an independent funding arrangement based on imposing taxes on transnational travel, military expenditures, and luxury items. The objectives would be to move toward a global organization that was dedicated to the global and human interest as well as to the promotion of national interests as is now the case, which would depend on vesting implementing authority in the UN Secretary General as well as the acceptance of a degree of demilitarization by current geopolitical actors, with the proclamation of shared goals of making national security unambiguously defensive, and globally regulated in accord with international law.

In effect, the policy priorities to be served by such a radical reordering of global relations, shifting authority and power from its present geopolitical nexus to a multiplicity of hubs of influence that sought global justice and ecological sustainability, and were more institutionally situated in global networks and arrangements. In the scheme depicted above it would mean a rather dramatic shift from geopolitical autonomy to a more law-governed world order with the establishment of effective mechanisms to serve the whole of humanity rather than being focused on the wellbeing of its distinct territorial parts. In the process, accompanying social democratic arrangements for trade, investment, and development would need to be adjusted to serve the attainment of basic economic and social rights as implemented by monitoring and regulatory transnational procedures that were also sensitive to ecological sustainability.

It hard to imagine such policy and structural modifications taking place without a renewed confidence in democratic, ethically grounded, and generally progressive styles of governance at the national level, protective of vulnerable people, accountable to future generations, as well as acting without total deference to short-term electoral cycles. In other words, the behavioral tendencies and values that are now dominating most political arenas by dangerously myopic approaches to policy and structures of accountability would have to be transformed on the basis of ecological consciousness, respect for human rights and international law, and an international institutional structure oriented around the protection of human and global interests in addition to national rights.

There is no plausible political path visible to such a future at present, although there is a growing sense of panic, especially among youth, as recently epitomized by the charismatic impact and impressive insight of Greta Thunberg. What is altogether missing from the present setting are credible sources of revolutionary energy guided by such a vision of a necessary and desirable future, which would entail the rejection of autocratic governance of sovereign states and of apartheid geopolitical regimes (as with nuclear weapons, accountability to international criminal law, and double standards). In effect, a drastic shift from a zero-sum world of destructive rivalry, exploitation, intervention, and political egoism to a win/win world based on the emergence of a sense of global community and ecological unity accompanied by the mechanisms and structures to convert policy directives into behavioral conformity.

Tags: Ecological Challenges, geopolitics, Global Crisis, global reform, international law, Territoriality, UN

Comments 6 Comments
Categories Commentary, Global Governance, International & Global Law, Reflections, State-Centricism, World Politics

Remembering the World Court Advisory Opinion on Israel’s Separation Wall After 15 Years

10 Jul

Remembering the World Court Advisory Opinion on Israel’s Separation Wall After 15 Years

On July 9, 2004 the International Court of Justice (ICJ) in The Hague issued an Advisory Opinion by a vote of 14-1, with the American judge the lone dissenter, as if there would have been any doubt about such identity even if not disclosed. The decision rendered in response to a question put to it by a General Assembly resolution declared the separation wall unlawful, and that compliance with international law would require it to be dismantled and Palestinian communities and individuals compensated for harm incurred. As with the identity of the dissenting judge, the failure of Israel to comply with the decision was as predictable as the time of tomorrow’s sunrise.

Only slightly less anticipated was the American government response, which adopted its customary hegemonic tone, to instruct the parties that such issues should be resolved by politicalnegotiation, which even if heeded would end up as Israel wished, given the hierarchical relationship between Israel as occupier and Palestine as occupied. It doesn’t require a legal education to dismiss the American argument as fatuous at best, cynical at worst. The question put to the ICJ was quintessentially legal, that is, whether the construction of the separation wall on occupied Palestinian territory was or was not consistent with the Fourth Geneva Convention governing belligerent occupation.

Although the decision is labeled as an ‘advisory opinion’ it has the authoritative backing of a fully reasoned and documented consensus of the world’s most distinguished jurists as to the requirements of international law in relation to the construction of this 700km wall, 85% of which is situated on occupied Palestinian territory. The degree of authoritativeness of the legal analysis is enhanced by the one-sidedness of the decision. It is rare for a legal controversy before the ICJ to produce such near unanimity given the diversity of legal systems of the 15 judges and considering the civilizational and ideological differences that haunt world order generally.

This legaloutcome in The Hague was overwhelmingly endorsed politicallyby the General Assembly mandating Israeli compliance. It is disappointing that Israeli defiance of both the ICJ, the world’s highest judicial tribunal, and the General Assembly, the organ of the UN most representative of the peoples of the world, should have occasioned so little adverse commentary over the years. It is not only a further confirmation that the UN System and international law lacks the capacity to deliver even minimal justice to the Palestinian people but that such institutional authority is subject to a geopolitical veto, that is, international law without the backing of relevant power becomes paralyzed with respect to implementation.

When considering the constitutional right of veto given to the five permanent members of the Security Council as augmented by the informal geopolitical veto enabling dominant states to shield their friends as well as themselves from the constraints of international law, the dependence of law on the priorities of power becomes obvious, painfully so. It helps us grasp the perverse ways the world is currently organized. It is truly pathetic that only the weak and vulnerable are subject to the constraints of law, while the strong and those shielded by the strong are the lawless overlords of this unruly planet.

The wall a notorious international symbol of coercive and exploitative separation, as epitomized by the apartheid security structures imposed on the Palestinian people as a whole has a grotesque pattern of implementation. Its ugly structures slice through and fragment Palestinian communities and neighborhoods, separating farmers from their farms, and creating a constant and an inescapable reminder of the nature of Israeli oppression.

It may put the issue of the separation wall in historical perspective to recall features of the Berlin Wall. During the Cold War it came to epitomize oppression in East Germany, and more generally in Eastern Europe. If the East German government had dared extend the wall even a few feet into West Berlin it would have meant war, and quite possibly World War III. And finally, when the wall came down it was an occasion of joyous celebration and a decisive moment in the historical dynamic that let the world know that the Cold War was over. It is helpful to appreciate that the Berlin Wall was designed to keep people in, while the Israeli Wall is supposed to keep people out.

There is also the question of motivation. As many have pointed out, the wall remains unfinished more than 15 years after it was declared necessary for Israeli security, which tends to support those critics that pointed out that if security was the true motive, it would have been finished long ago. Even if the claim is sincerely, in part, motivated by

security, it illustrates the unjust impacts of ‘the security dilemma’: small increments of Israeli security are achieved by creating much larger increments of insecurity for the Palestinians. Beyond security, it is obvious that this is one more land-grabbing tactic of the Israelis that is part of the wider Israeli strategy of treating ‘occupation,’ especially of the West Bank, as an occasion for ‘annexation.’ Even more insidiously, is the apparent Israeli intention to make Palestinian life near the wall so unendurable, that Palestinians relinquish their place of residence, ‘ethnic cleansing’ by any other name.

What messages does this anniversary occasion deliver to the Palestinian people and the world? It is a grim reminder that the Palestinian people cannot hope to achieve justice or realize their rights by peaceful means. Such a reminder is particularly instructive as it comes at a time when intergovernmental efforts to find a political compromise between Israeli expectations and Palestinian aspirations has been pronounced a failure. This failure, again not surprisingly, has meant a dramatic shift in approaching ‘peace’ and ‘a solution’ from diplomacy to geopolitics, from the Oslo flawed diplomatic framework to the Trump ‘deal of the century’ or as Kushner has rephrased it, ‘peace to prosperity.’ Or more transparently phrased, it is ‘the victory caucus’ that Daniel Pipes and the Middle East Forum that he presides over has promoted so successfully in recent months, in effect, advocating a final betrayal of the rights of the Palestinian people, an approach that has evidently found a receptive audience in both the U.S. Congress/White House and the Israeli Knesset.

This geopolitical strategy is a thinly disguised attempt to satisfy Israel’s expectations as to borders, refugees, settlements, water, and Jerusalem while repudiating Palestinian rights under international law, including their most fundamental right of self-determination, supposedly a legal entitlement of all peoples in the post-colonial era.

The question that remains is ‘how much longer can the Zionist Project swim against the strong historical current of anti-colonialism?’

The answer in my view depends on whether the global solidarity movement, together with Palestinian resistance, can reach a tipping point that leads Israeli leadership to reconsider its ‘security’ and its future. Such a point was reached in South Africa, admittedly under quite different conditions, but with an analogous sense that the Afrikaner leadership would never give up control without being defeated in a bloody struggle for power.

Tags: Advisory Opinion, Berlin Wall, Daniel Pipes, ICJ, international law, Kushner, Separation Wall, UN authority, Victory Caucus

Comments 45 Comments
Categories Advisory Opinion, Berlin Wall, Commentary, Gemeva Convention IV, Israel/Palestine, Reflections, Separation Wall

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Pompeo’s Diabolical Diplomacy

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

Respecting International Law: A Practical Argument

The Decline of International Law: Reflections of a True Believer

Facing the Global Crisis

Remembering the World Court Advisory Opinion on Israel’s Separation Wall After 15 Years

Richard Falk

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