Tag Archives: international law

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.    

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Jurisprudential Notes Toward Empowering and Liberating International Law and the United Nations

2 Jun

Jurisprudential Notes Toward Empowering and Liberating International Law and the United Nations

 

  1. Two recent exceptional books, Justice for Some: Law and the Question of Palestine (2019) by Noura Erakat and For the Love of Humanity: The World Tribunal on Iraq (2018) by Ayça Çubukçu both reject the liberal trope of assuming international law is an ally with respect to their passion for justice. Law as such is a neutral instrument, historically invented to serve the purposes of the strong, and more recently seen as useful for the weak in certain settings. When law is aligned with injustice it gives rise to resistance, which historically is associated with the hallowed tradition of civil disobedience, influential with Tolstoy, Gandhi, and more recently, Martin Luther King, Jr.. In these contexts civil disobedience can involve the nonviolent transgression of any legal norm that calls attention to the specific injustice. For instance, a refusal to pay taxes or trespass on a military base are illustrative. Armed struggle may also achieve law-generating legitimacy as was the case in the decades after World War II for anti-colonial wars or wars of national liberation. So far, there is no traditional of internationalor globalcivil disobedience. In a globalizing world, transnational activism needs such a means to protest injustice. Perhaps, the purported criminalization of the BDS Campaign directed at Israel in some Western countries gives this option to activists

 

  1. David Kennedy earlier developed the argument, if I read him correctly, that a principal value of international law in war/peace contexts is to provide a familiar and accepted discoursethat facilitates communication between representatives of governments, diplomats, and other actors. This assertion is more innovative than it appears at first glance. Most of us believe the main function and test of law’s effectiveness is whether it achieves restraints on behavior on the basis of legal prohibitions. Kennedy is skeptical of the ability of international law to shape the behavior of sovereign states in war/peace contexts, yet affirms the relevance of international law to the conduct of international relations. Instead of stressing the regulation of behavior of sovereign states, Kennedy believes that international law is primarily useful for purposes of intra-governmental and inter-governmental communication, helping policymakers determine how policy should be framed and justified. The challenge for most moderate governments is to exercise their discretion in ways responsive to a range of concerns, including humanitarian, security, and strategic. For overall discussion see Kennedy, Of War and Law (2006). There is a further point. In effect, language being inherently malleable, it is always possible to interpret the law to conform to preferred policy options reflecting societal roles and normative background. For this reason, in matters that challenge major state interests law serves mainly to communicate and clarify, but lacks the political traction to restrain. Law does allow the strong to vindicate their claims of belligerent rights as in war crimes trials of the leader(s) of defeated countries. A recent instance is the trial and execution of Saddam Hussein orchestrated by the victorious law-violating aggressor.

 

  1. By contrast, in Revisiting the Vietnam War (2018) I contend that American policies in Vietnam after 1954 were unlawful in various ways, with a special stress on the U.S. extension of the combat zone in South Vietnam to North Vietnam after 1964. In effect, international law, as well as the UN Charter, sought to be regulative with respect to behavior, as well as the incidental benefit of offering a framework for discourse among diplomats. Further, that regulative intentions giving rise to such legal norms were seeking to restrict recourse to international force to situations of self-defense strictly defined. The overriding goal of the. UN Charter is war prevention. The Nicaragua Casedecided by the World Court in 1986 confirmed the view that international law governing recourse to force was regulated in a manner entirely consistent with the UN Charter core concepts of unconditional prohibition (Article 2(4)), coupled with an exception for validclaims of self-defense made dependent on the existence of “a prior armed attack” across an international boundary. (Article 51). History is relevant. When the grief and tragedy of war remained an active memory restraint followed, not only because the law so decreed but as a reflection of the psychological anti-war mood that then briefly prevailed. 

 

  1. Such a regulative view of international law rests on a premise that there are correct and incorrect (or better and worse) modes of interpretation with respect to theapplicationof legal norms. This premise does not entail a positivist approach that restricts the meaning attributed to legal norms to the language used in formal texts or customary rules. A more appropriate interpretative approach can be adopted, enlarged to take account of context, including ethical, sociological, and historical considerations. When a country has recourse to force, claimint to act in accord with its right of self-defense or contends that its uses of force are proportional and discriminate a regulative approach can disagree by offering contrary factual and interpretative evidence. The absence of authoritative interpreters of international law make theses assessments rest to a greater degree on supposedly neutral scholarly or expert opinion, which is deemed more trustworthy as not forthcoming from a partisan source. Of course, scholars disagree just as judges disagree. For this reason the selection of judges or the appraisal of scholarly merit is crucial and often determinative of ‘the law.’ The significant differences between Brett Kavanaugh and Ruth Bader Ginsberg are not vocational or analytical as much as they are normative and subjective.

 

  1. Myres McDougal in collaboration with Harold Lasswell addressed this issue of ‘normative ambiguity.’ They attempted. to resolve the challenge of authoritativeness by reference to ‘reasonable expectations’ as assessed by reference to the values at stake in a free society. As their work was rooted in the global setting of the Cold War their inclinations were to find that American foreign policy was in most instances compatible with international law as it was assumed guided by a commitment to promote free world values and by reliance on capabilities able to bring effective power to bear on the behavior of political actors. See McDougal & Florentino Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion(1961); see also McDougal & Harold D. Lasswell, “The Identification and Appraisal of Diverse Systems of World Order,” American Journal of International Law53:1 (1959). Such a jurisprudential perspective regards international law as a geopolitical instrument evaluated as good or bad by reference to the normative credentials and material capabilities of political actors. These credentials are given concrete significance by assessing the degree of adherence of a domestic public order system to the values of a free society. The West, from this point of view supposedly adhered to such values, while the Soviet bloc did not. Such a framework was deeply ideological as in contested situations, for instance, Vietnam, where the differences between the Soviet and American forms of government should not have affected the legal assessment of violations of the sovereign rights of Vietnam.

 

  1. Çubukçu explores the relevance of international law in the informal setting of a people’s tribunal established to assess the legality of the Iraq War, including the subsequent occupation of Iraq. The tribunal was charged with determining whether political leaders, military commanders, and corporate officers should be held personally accountable under international criminal law. Admittedly, this is a somewhat misleading way to conceive of the central mission of the Iraq War Tribunal. This appropriation of law by those acting on behalf of civil society are doing so on the basis of already formed judgments that reflect moral convictions. Such a peoples’ tribunal is tasked with documentingviolations of international law and international crimes, and is expected to justify conclusions of criminality, which were presumed, and motivated the effort to create such a tribunal. Such a ‘judicial’ undertaking is not motivated by a search for the proper mode of interpretation. The Tribunal’s ‘jury of conscience’ did not rest its authority on the basis of having legal experts pass judgment, although it was permissible to have such individuals participate, but only to the extent that their politics are right and their reputation as exemplary citizens is high. Putting the point differently, these kinds of civic initiatives are undertaken because of anti-war sentiments being considered applicable to the judgment of belligerent behavior being challenged and the failure of formal institutions, including the United Nations, to protect a sovereign nation, in this case Iraq, from military attack and occupation. It is not an inquiry as generally understood, but a gathering of evidence and interpretative argument to mount a challenge directed at a controversial policy of a government, usually a government that enjoys impunity with respect to its wrongdoing. The conclusions of such a tribunal is ultimately an appeal to international public opinion, but usually falls short of its goals because of limits on funding available to disseminate results and antipathy of mainstream media to these activities. These tribunals are portrayed by the media as usurping the role of formal institutions and are constituted without any acceptable constitutional mandate. The underlying question is whether civil society has any lawmaking authority deserving respect. As such tribunals challenge the new political norms of post-truth society, some view their role as benevolent, others as irrelevant if not malevolent. There is no doubt that civil society exerts an influence on public opinion with respect to issues of war/peace, including accountability for war crimes. Such influence tends to be more evident in democratic societies. Yet modern democratic states rely on extensive claims of secrecy, nationalist ideology, money, and militarism to marginalize those citizens who seek to engage more fully and critically with public policy, especially the war/peace agenda, than by voting periodically. Tribunals established by citizens is a dissident mode of participatory democracy, and more important for this reason than as a contribution to upholding the rule of law.   

 

  1. Academic international law specialists rarely acknowledge any legal, moral, and political relevance to civil society initiatives that claim a residual authority to act when governments and the UN fail to do so. In this sense, the Nuremberg and Tokyo trials after World War II also proceeded on the basis of predetermined results, but because constituted by sovereign states as represented by governments, their undertaking was generally viewed as deserving of respect. The documentation of criminality was widely regarded as an invaluable form of political education. What little criticism of these legal initiatives by academic specialists did occur focused on the fact that the crimes of the victors, including the atomic bombing of Japanese cities, were excluded even from inquiry, much less accountability. In other words, since international law is treated as subject to the statist framework of world order, non-statist initiatives to pronounce on the wrongdoing of states are dismissed as without legal relevance.

 

  1. We are confronting various kinds of partisan scholarship, some overt, some hidden. Çubukçu and Erakat are notable because they make their partisanship explicit, whereas the mainstream jurisprudential traditions, whether positivist, realist, or sociological, claim an objective approach premised on the mystique of ‘the majesty of the law.’ Or as in recent debates about the Trump presidency, rhetorical flourishes such as ‘no one is above the law’ are common yet non-operational. Even before the banner of ‘fake news’ was waved so defiantly, it was obvious that law and legal order depend more on the political and ethical outlook of the interpreter than on legal training and analytical skills or even on the aura of legitimacy surrounding governmental institutions. It is usually more helpful to know the viewpoints of the judges on the U.S. Supreme Court than knowing all about the substantive ins and outs of a legal controversy being addressed.

 

  1. Shall we also admit that the law in the books will not necessarily matter unless it is accompanied by a sufficient political willto seek and achieve implementation? In international life this political will depend heavily on the attitudes of leading geopolitical actors. In domestic society the political will is shaped by what the 20thcentury Austrian sociologist of law, Eugen Erlich, called ‘the living law,’ the values and expectations of the people as the crucial indicator of effective law.For routine matters such as tourism, diplomatic representation, maritime safety governments comply because it is convenient for them to do so, or reciprocity creates mutual benefits. When war/peace is at stake, then law tends to be sidelined by geopolitics, invoked when it serves interests, evaded or refuted when it contradicts interests. The hope after the devastating war that ended in 1945 and generated a well-founded fear that a future war would involve nuclear devastation was that it would incline the most powerful state to abandon war as an instrument of policy as a matter of law reinforced by political will. Instead geopolitical actors, above all the United States and the Soviet Union opted more for prudence than prevention, continuing to advance their interests by investing heavily in military capabilities and by pragmatic recourses to international force. This post-nuclear militarism was tempered by strong efforts to limit the scale and stakes of conflict to avoid a major war that could lead to the use of nuclear weaponry.

 

  1. The substantive context matters. The state, if corruption and incompetence can be minimized, can be relied upon to act lawfully if the subject-matter is What is treated as routine shifts with time, and reflects to some extent the ebb and flow of political outlook, but generally coincides with behavior that reflects reciprocal interests as is the case with diplomatic immunity, maritime safety, and often even treatment of prisoners of war. Geopolitical actors generally have a strong interest in stability for purposes of trade, investment, travel, and communications that depends on reliable international legal frameworks. Law collapses when there is absent a political will to implement the legal norms as is the case with respect to economic and social rights. Such norms come into existence because of widely shared moral aspirations, but lack political traction to challenge entrenched private sector interests that benefit from non-compliance as with the ‘right to food’ or the ‘right to health.’ Beyond this, the absence of an international community dedicated to human interestsas distinct from national interests makes it evident that despite economic and social rights anchored in treaty law, any sense of meaningful internationalresponsibility is almost non-existent. What international relief is forthcoming in response to famine and natural disasters is invariably voluntary, a matter of good will, rather than an expression of an obligatoryresponse.

 

11.Where asymmetries of power exist, as in competing claims of sovereign rights, with respect to the delimitation of territorial boundaries or upholding the right of self-determination, law validates grievances, motivates resistance, but cannot shape political outcomes. Asymmetries of power are conventionally associated with relative military capabilities, but this has been demonstrated to be misleading in post-1945 international relations. A major recent prominent example is the overall success of the anti-colonial movement. In case after case a mobilized popular resistance of the nation overcame the superior military capabilities of the colonial power. The exceptions to this pattern involve settler colonial societies in which the native population was exterminated or marginalized as in North America, Australia, New Zealand, or somewhat assimilated as in most of Latin America. Relative military power is still highly relevant in conflicts between states, but not in their subsequent occupation. In the instances of aggression against Afghanistan and Iraq, the military superiority of the United States prevailed in the attack phase of warfare, yet during the subsequent occupation phase it endured a political defeatthat basically nullified the military victory. In the post-colonial world, popular sovereignty when effectively mobilized as resistance can often challenge geopolitical maneuvers, upholding basic rights, but at great human cost. Legitimating resistance through law as occurred in the course of the great anti-colonial struggles of the last half of the 20thcentury may have been the greatest contribution of the United Nations to peace and justice.   

 

 

12.I will end where I began, celebrating the publication of the recent books by Çubukçu and Erakat. Çubukçu helps us better understand the complex interplay of law and war from the perspective of movement politics; the geopolitical state is the target of disapproval for its behavior—trampling on the sovereign rights of the Iraqi people by waging an unprovoked war. Erakat, in contrast, explores how law has been twisted by governments to serve geopolitical interests at the expense of basic Palestinian rights, and yet normative discourse nevertheless currently serves the struggle of the Palestinian people and strengthens the political will of transnational civil society to challenge Israel.  

 

 

 

 

 

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Why Vote on Tuesday: The Menacing Challenges of Trump and Trumpism

4 Nov

World Order in the Age of Trump and Trumpism 

[Prefatory Note: This piece has been published in two online publications in recent days, Rozenberg Quarterly and Z-Net, in slightly modified form. It is based on a lecture given at West Chester University in Pennsylvania on October 24, 2018 at the invitation of C.J. Polychroniou. Although I have no great expectations about improvements in American foreign policy of Congress if it is fully or partially controlled by Democratic majorities after the November 6thmidterm elections. Nevertheless, I share the widely held anti-fascist view that any show of opposition to Trump and Trumpism at this time deserves priority on an urgent basis.]

 

On Trumpism

 

This title requires a few words of explanation. By the ‘Age of Trump,’ I mean not only the current American president. The phrase is meant to encompass elected leaders like him around the world. I have a friend in India who refers to Narendra Modi as ‘our Trump’ and the newspapers have been full of commentary to the effect that the new leader of Brazil, Jair Bolsonaro, amounts to ‘a Brazilian Donald Trump,’ although some familiar with Bolsonaro’s worldview insist that ‘a Brazilian Joseph Goebbels’ is more accurate. This extension of Trump to Trumpism is meant to make us aware that Trump is not just an American abnormality. He reflects a structural conditions that seem global in character, although with significant variations from nation to nation, and makes reference to Trump’s proto-fascist ‘base’ in the U.S..

 

By referring to ‘Trumpism’ my intention to highlight several issues other than decrying Trump as a particular instance of this new autocratic brand of a supposedly ‘democratic’ leader: (1) To associate ‘Trumpism’ with a deliberate U.S. withdrawal from political and neoliberal globalization, without significantly challenging, perhaps even augmenting military globalism, enhancing capabilities to project destructive power anywhere on the planet, while weakening alliance commitments and multilateral trade frameworks; (2) Trumpism also refers to the populist base of support for a global array of strong leaders, and their accompanying right-wing social, economic, and cultural policies, with the threat of ‘fascism’ and fascist tendencies being increasingly feared and perceived, even in centrist discourse; (3) Trumpism also involves a shift of preferred worldview from globalist to nationalist centers of political gravity, with a loss of normative support for human rights, democracy, and multilateral diplomacy and cooperative forms of multilateral problem-solving and treaty making; and (4) in the American setting, this phenomenon of Trumpism is not tied solely to the person of Trump; it could survive Trump if one or more of several scenarios unfold—for instance, in the 2018 and 2020 national elections the Republican Congress is reelected, even if Trump should be defeated or compelled to resign—in effect, the Republican Party has been effectively taken over by the ideas, values, and approach of Trump, and vice versa; it is difficult to disentangle ideological cause and effect as between party and leader.

 

The Kavanagh confirmation hearings were one kind of straw in the wind, considering the iron party discipline manifested. With this appointment to the U.S. Supreme Court it is likely that the American judiciary will be Trumpist for many years even if Trump is soundly defeated in 2020. Trump’s judicial appointments are setting the judicial tone for years, if not decades, were the Democratic Party to take control of the Senate as early as November.

 

 

On Trump: Personality and Policy

 

There is one important confusion surround the global approach of Trump, which arises from the perception of Trump as incoherent, impulsive, and dishonest, and nothing more than an opportunistic narcissist. I think this confusion can be reduced by distinguishing between Trump as tactician and Trump as strategist. It is as if it is necessary to approach the identity of Trump as an either/or question: either Trump is completely ad hoc and opportunistic or he knows what he is doing, and has been effective in carrying out his plan. My view is that Trump is both an erratic personality and a right-wing ideologue.

 

To simply a rather complex set of questions let me suggest that when Trump acts tactically, or in dealing with the media, he is inconsistent, often lies, bobs and weaves like a professional boxer.  He seems capable of being starkly contradictory without blinking, and above all, adopt positions that are both tasteless and detached from reality, as well as being supremely opportunistic, especially if he feels cornered by breaking news or is intent on capturing the news cycle. In such contexts, Trump seems ready to keep changing his story, retract compromises, defame the opposition, inflame his base by uttering deliberate exaggerations, and steer the ship of state with wild abandon without the steadying presence of a rudder. 

 

However, when Trump acts strategically he seems quite a different person, above all, rather coherent, and methodical, almost pragmatic, in advancing an ideological agenda. His grand strategy is consistently reactionary in the sense of being ultra-nationalist, anti-immigrant, anti-globalist, militarist, business friendly, and contemptuous of international law, the UN, human rights, constitutionalism, the rule of law, climate change, and environmental protection. Trump continues to be an avowed climate changer denier in the face of massive scientific evidence to the contrary and despite a series of daunting extreme weather events here in the United States. ‘America, First’ is Trump’s signature slogan. For once, it is not ‘fake news,’ although it strikes many of us as imprudent and unacceptable in shaping American public policy. This kind of egocentric nationalism and unfettered capitalism is dangerously ill-adapted to serve as a geopolitical and economic compass for successfully navigating the 21stcentury.

 

To obtain a more complete picture of Trump’s political style, it seems illuminating to make an assessment by combining perceptions from three different angles: as a trickster and con man when tweeting or dealing with the media; as a demagoguewhen he performs at his political rallies; and as an ideologuewhen it comes to policy decisions and influence peddling. It is this composite that makes Trump such a confounding and dangerous political figure. It also makes the past political experience of American presidents irrelevant. It is not an overstatement to observe that there has never before been an American president who handles the office in such a maverick fashion.

 

 

Normative  Decline

 

As someone who has long associated his work with the critical tradition of International Relations (IR) theorizing, I am particularly sensitive to an observable normative decline in  international behavior that can be partially attributed to Trump and Trumpism. For one thing, the US has acted as global leader, including as advocate of public goods, ever since 1945. Admittedly its recordand practicehas been mixed when it comes to international law and respect for the UN and its Charter. Nevertheless, the pre-Trump leadership role was vital in several key sectors of global policy, including climate change, nuclear arms control, development assistance, world poverty, and global migration. The United States Government was also a vital promoter of several less visible concerns such as negotiating a modern  public order of the oceans, an international regime for Antarctica, and an international framework of rules, procedures, and institutions for trade and investment. There is no doubt that the U.S. carried out its leadership role so as to gain advantages for itself, but this was generally accepted by most other states because the U.S. contributed to policy results that were widely believed to be upholding the common interests of humanity. Without this American role, there has emerged a leadership vacuum at the very time that the world order challenges can be met only with a strong and constructive exertion of leadership on global issues. The UN is incapable of providing such leadership. World order remains state-centric and is as dependent as ever on global leadership by dominant sovereign states. It is quite possible that some post-American form of collective leadership will emerge, and provide the world with an inter-governmental alternative to global governance under the watchful eye of Washington.

 

What Trump has done, and Trumpism endorsed, is to repudiate these normative horizons in global settings in a variety of contexts in which their relevance should be treated as greater than ever. Such behavior increases risks of catastrophic ecological and geopolitical events, ranging from accelerated global warming to a war with Iran. It also exhibits a kind of escapist evasion of the real challenges to national and global wellbeing that will grow more serious and impose ever higher costs on the future to the extent that they are being currently ignored. Furthermore, leaving these issues to simmer, accentuates the existential suffering of persons subject to cruel and oppressive conditions of strife and control, while consigning future generations to a dark destiny and heightened risks of catastrophic events.

 

 

Preparing for Trump: the Failures of Pre-Trump Leadership

           

By indicting the role of Trump and Trumpism I do not want leave the impression of a rosy picture of pre-Trump world order. In actuality, Trump has so far when acting internationally, except for global economic policy, mainly departed from the pre-Trump policy framework discursivelevel. To date the behavioraldiscontinuities are not clearly evident.  Trump has definitely made moves to dismantle the international political economy, or what is referred to as ‘the liberal world order’ shaped after 1945, with its deference to the approaches taken by the Bretton Woods Institutions of the World Bank and IMF. Yet the Trump approach does not want to regulate capital flows beyond protecting the domestic American market. It has no trouble with an outlook that favors returns on capital over effects on people.

 

On other issues, as well, it is well to look back so as to gain insight into what has changed, and what has remained essentially the same. Pre-Trump foreign policy was steadfastly pro-Israeli all along, its idea of national security all along aspired to achieve global military and economic dominance, and Washington’s approach to the UN, international law, and human rights was always highly selective, and often subordinated to the pursuit of strategic goals. This was especially true after the end of the Cold War. During this period of 25 years pre-Trump leaders completely missed golden opportunities to improve the quality of world order by strengthening the UN, by seeking nuclear disarmament, by pursuing ecological stability, and by promoting global economic reforms that would ensure a more equitable societal sharing of the benefits of economic growth. It did none of these things, thus paving the way for the rise of Trump and Trumpism, which has to be sure intensified these regressive tendencies that preceded its occupancy of the White House. In this sense, it is a mistake of mainstream critics not to place significant levels of blame for Trump and Trumpism on the myopic priorities of pre-Trump global leadership. [See Stephen Gill, ed.,Global Crises and the Crisis of Global Leadership(2012)] It is a reasonable conjecture that had the pre-Trump leaders taken advantage of the situation after the end of the Cold War to promote an ambitious program of global reform, there might never have been an ‘Age of Trump,’ but of course we will never know.

 

The claimed reality of normative decline can be better understood by looking at three illustrative instances both to understand and appraise the claim.

 

  • Ignoring Palestinian Rights. One of the clearest instances of Trump’s approach in action concerns the approach to the Palestinian struggle for national rights. Trump’s one-sided moves over the past two years are indicative: appointing extreme Zionists to shape his policies toward Israel and Palestine, and even the region; Trump’s break with the international consensus by moving the American embassy in Israel to Jerusalem; a blind eye toward unlawful Israel settlement expansion and its repeated use of excessive force and collective punishment; the defunding of UNRWA assistance to administer occupied Palestinian territories accentuating the ordeal endured by the civilian populations, especially in Gaza; and the attempts to deny refugee status to several million Palestinian refugees born in refugee camps.

 

These provocative policy initiatives appear to be part of a coherent endorsement of a ‘one-state Israeli solution,’ a feature of which is to deny completely Palestinian fundamental rights, including above all the right of self-determination. Along the way Trump and his minions bashes the UN for its supposedly anti-Israel bias and go so far as to threaten UN member states and the Organization with funding consequences if American policy demands are being ignored. It should be understood that Israel and the United States are complaining about UN criticisms of Israeli policies that are flagrant violations of international humanitarian law and international criminal law.[†]

 

Such geopolitical bullying at the UN is a total repudiation of the potential for creating a cooperative international order, which would alone be capable of serving the shared interests of the entire world. These interests include those challenges of global scope that no sovereign state, no matter how rich and powerful can hope to solve on its own. These bullying moves by the U.S. are also a shocking response to efforts at the UN to hold Israel accountable for flagrant violations of international law.

 

This in turn has enabled Israel to proceed ruthlessly with the last phases of the Zionist Project in its maximal form, which is to establish an exclusive Jewish state on the entirety of what had long been an essentially non-Jewish society. It is helpful to recall that at the time in 1917 when this Zionist Project received its first major international blessing in the form of the Balfour Declaration the Jewish population of Palestine was less than 6%. The repression and dispossession of non-Jewish residents that has followed for more than a century rips away the veil of deception surrounding the claim that Israel was the only democratic state in the Middle East. It gave a measure of plausibility to allegations of the apartheid nature of Israeli domination of the Palestinian people.  This allegation has now been made less controversial due to the recent adoption in Israel of a new Basic Law known as “The Nation Staten Law of the Jewish people.” Despite the realities of the subjugation of Palestinians, prior to the Basic Law, the United States had joined Israel in insisting at the UN that an academic report concluding that the patterns and practices relied upon by Israel qualified as  apartheid was nothing other than a crude attempt to slander Israel via an anti-Semitic trope.[‡]

 

My point here is to take account of a clear and prominent international situation in which American political partisanship is allowed to push aside normative considerations. To do this in such a high-profile setting, further diminishes respect for the rights of a dispossessed and oppressed people and for international law and the UN generally.

 

 

  • The Qatar Crisis. The Qatar Crisis, which began in 2017, illustrates the tactical side of Trump as ill-informed and mercurial when it comes to American foreign policy and is again confirmatory of the irrelevance of international law if its application is inconvenient in geopolitical crisis situations. In the immediate aftermath of Trump’s 2017 May visit to Saudi Arabia, with its purpose of strengthening of the Saudi/Israel/US resolve to confront Iran, the Mohammed ben Salmon leadership in Riyadh chose the moment to confront the tiny state of Qatar with 13 Demands, coupled with a variety of threats as a prelude to coercive diplomacy in the form of a blockade, an embargo, and expulsion of Qatari nationals from residence and employment throughout the Gulf region.

 

The central charge against Qatar was its alleged support for terrorists and terrorism in the region. This was a perverse charge because the Gulf Coalition making the allegations was far more indictable for supporting international terrorism and promoting jihadism than was Qatar. The real motivation of the anti-Qatar coalition was to shut down Al Jazeera and the policies of asylum that Qatar extended to political figures seeking refuge, initiatives well within Qatar’s sovereign rights, and steps that were actually supportive of internationally protected human rights and political pluralism.

 

In actuality, these countries seeking to overwhelm Qatar were more worried about democratictendencies than they were about terrorism. Their Sunni governments are extremely hostile to all Muslim oriented political tendencies  in the region in ways that are regarded as more threatening to their stability than is the Shi’ia sectarian rivalry. This form of threat perception was made clear by the counterrevolutionary support given by the Gulf monarchies to the military coup against the democratically elected Muslim Brotherhood government in Egypt back in 2013. The hostility toward Shi’ism is less theological than geopolitical, a cover for its competition with Iran for regional hegemony.

 

At first, Trump conveyed unreserved U.S. support for these moves against Qater designed to intimate this tiny country. However it became soon clear that Trump had no idea about what he was doing.  Upon returning to the U.S. Trump quickly discovered that the largest American air base in the region was located inside Qatar housing as many as 10,000 American troops. In an unexplained turnaround Trump dropped support for confronting Qatar and urged the parties to resolve the Gulf Crisis as soon as possible by negotiations, a position supported strongly by the Secretaries of State and Defense. After some months, when this shift of Washington tactics didn’t succeed, Trump shifted again this time asserting that the U.S. does not interfere in such crises, and left it up to the parties to find their own solution. I suspect that this second shift occurred because the Trump presidency didn’t want to be associated with a position that appeared to exert no influence on the parties to the conflict.

 

My central point is that what didn’t matter at all in such a tactical situation was the striking fact that Qatar, as with Palestine, had international law totally on its side with respect to all of the issues in contention. Even the international community and the UN failed to lend symbolic support to Qatar in reaction to the unlawful bullying tactics pursued by Saudi Arabia and its coalition partners. Qatar has seemed reluctant to insist on its rights under international law as its pragmatic response to the crisis was to seek a mediated compromise rather than an acknowledgement of wrongdoing  by the Gulf Coalition. Perhaps such a posture was, and remains, a reflection of the power disparities, which meant that Qatar’s only hope to end the crisis peacefully. Expecting the Gulf Coalition to admit its wrongdoing was evidently assumed to be unrealistic given its hard power dominance of the Gulf.

 

  • The Khashoggi Murder. As has been widely suggested, the grotesque murder of the leading Saudi journalist, Kamal Khashoggi, shocked humanity in ways that tens of thousand of dead civilians in Yemen and Syria have not. There are various interpretations and piously phrased prescriptions about what must be done. Should the Saudi perpetrators be held responsible? And if so how? Should lucrative arms deals benefitting the American arms industry be cancelled costing American jobs and profits? Should the alliance with Saudi Arabia by the US and Israel go forward with its central plan of confronting Iran, while abandoning the Palestinians? What such a litany of questions ignores is the total neglect of the relevance of the most fundamental of human rights, the right to life, as well as the abuse of diplomatic immunity of consulates located in a foreign territory.

 

When contemplating the proper course of action the main consideration seems to be ‘how to preserve national interests in light of such a grisley murder?’ As long as possible, Trump and the Israeli leadership sought to explain away the Khashoggi murder by shamelessly advancing a series of scenarios that invoked ‘alternative facts’ to avoid pointing a finger of accusation in the direction of Riyadh—first, it didn’t happen, and if it happened it was an accident, and then finally, if it wasn’t accident it  was not premeditated, and should be treated as a rogue operation of Saudi security people going beyond their orders. If some Saudi official are punished this is enough to absolve Mohamed ben Salmon from guilt, regional geopolitics after a pause can be resumed as if the murder didn’t happen, and the United States can deliver the arms sold with a clear conscience as if nothing happened that should raise questions about continuing to treat Saudi Arabia as a valued ally. Not just the Khashoggi murder, but the broader record of human rights abuse, the malicious and inhumane Yemen War,  and the major funding of Islamic militancy around the world should have caused severe doubt. Does not political realism have any outer moral limits? The alliance with Saudi Arabia carries cynicism about ethical decency to an extreme.

 

 

Taking World Order Seriously

 

Leaders like Trump or Netanyahu whose global outlook are antagonistic to the values of the UN Charter and some form of humane global governance. Yet even they appear to value the UN as a prime time arena within which to articulate their preferred futures and aspirations, ironically including attacking the UN because it does behave as they would wish. In this sense, the priorities and values of leaders, especially those of authoritarian disposition, are often displayed in the annual series of speeches given at the UN. The media pays little attention to such presentations except to gain clues about immediate policy concerns, and this preoccupation with hot button issues overlooks their value as expressive of the worldview professed by current national leaders. This is not to suggest that such UN statements ignore immediate policy choices. The point is rather that it is more valuable to treat these annual statements as meaningful disclosures of underlying ideas about the nature and dynamics of world order.

 

Donald Trump’s second UN speech was somewhat less belligerent than his 2017 speech, except with reference to Iran, which was threatening, misleading, and in violation of spirit and letter of UN Charter. Trump disturbingly conveyed a clear sense that recourse to war, at least for the US was discretionary, and need not necessarily be justified by advancing a credible claim of self-defense or even a reasoned justification. As such, without using negating language toward the relevance of international law, Trump is repudiating in form as well as practice the core undertaking of the UN to prohibit all aggressive threats and uses of force in international relations.

 

In articulating this conception of the world according to Trump a few quotations underscore the tone and substance of his outlook, especially his insistence on subordinating global concerns to national interests narrowly conceived. On all questions, Trump accords priority to sovereign political will, thus repudiating the central efforts after World War II to promote a global rule of law and impose standards of criminal accountability on those who act on behalf of sovereign states. He also rejects the role of the UN Charter and international law as the rightful arbiter of when a state is authorized to use force internationally in situations other than responses to armed attacks.

 

A few representative quotes convey the tone and substance of Trump’s 2018 speech to the General Assembly.

 

On Anti-Globalism:

“America will always choose independence and cooperation over global governance, control and dominance.”

 

On Affirming Capitalism as the only legitimate path:

“America is governed by Americans. We reject the ideology of globalism, and we embrace the doctrine of patriotism.”

“All nations around the world should resist socialism and the misery that it brings.”

 

On UN Reform:

Denying the  legitimacy to both HRC and ICC:

“We will never surrender America’s sovereignty to      an unelected, unaccountable global bureaucracy.”

 

 

On a World of Sovereign States:

“Sovereign and independent nations are the only vehicle where freedom has ever survived, democracy, has ever endured or peace has ever prospered. And we must protect our sovereignty and our cherished independence above all,”

“So let us choose a future of patriotism, prosperity, and pride…We have a policy of principled realism rooted in shared goals, interests, and values.”

 

Dr. Mahathir Mohamed, the 93 year old leader of Malaysia gave the UN General Assembly an entirely different view of both the national interests of his country and his view of the global setting. This view reaffirmed the balance struck between the global and the national in the post-1945 initiatives as enacted by establishing the UN and holding the Nuremberg war crimes trials. Mahathir also recognized the gravity of the challenges that are presently confronting humanity. In my view, Mahathir’s responsible statesmanship contrasts with Trump’s anachronistic ideas of international order and American national interests.

 

As with Trump, a few representative quotes from Mahathir’s speech convey his overall approach.

 

On Malaysian national interest and values:

“Malaysians want a new Malaysia that upholds the principles of fairness, good governance, integrity and the rule of law. They want a Malaysia that is a friend to all and enemy of none. A Malaysia that remains neutral and non-aligned. A Malaysia that detests and abhors wars and violence. They also want a Malaysia that will speak its mind on what is right and wrong, without fear or favour. A new Malaysia that believes in co-operation based on mutual respect, for mutual gain. The new Malaysia that offers a partnership based on our philosophy of ‘prosper-thy-neighbour’. We believe in the goodness of cooperation, that a prosperous and stable neighbour would contribute to our own prosperity and stability.”

 

On respect for UN principles:

“These include the principles of truth, human rights, the rule of law, justice, fairness, responsibility and accountability, as well as sustainability.”

 

Toward a nonviolent geopolitics:

“There is something wrong with our way of thinking, with our value system. Kill one man, it is murder, kill a million and you become a hero. And so we still believe that conflict between nations can be resolved with war.”

 

On UN Reform:

“Malaysia lauds the UN in its endeavours to end poverty, protect our planet and try to ensure everyone enjoys peace and prosperity. But I would like to refer to the need for reform in the organisation. Five countries on the basis of their victories 70 over years ago cannot claim to have a right to hold the world to ransom forever. They cannot take the moral high ground, preaching democracy and regime change in the countries of the world when they deny democracy in this organisation.”

 

These two opposing worldviews should not be viewed as symmetrical. Trump adopts an extreme version of state-centric world order that might have been seen as appropriate for a dominant state in the nineteenth century. In contrast, Mahathir has views that take responsible account of twenty-first century realities, and a more globalized cluster of challenges and opportunities. In this regard, it seems appropriate to regard Trump and Trumpism as dangerously anachronistic, while Mahathir providing an illuminating example of what might be described as ‘the new political realism’ sensitive to the urgencies of the present.

 

 

Seven Conclusions

 

  • It is instructive to distinguish Donald Trump the person from Trumpism a global political phenomenon of right-wing populism and a structural reaction to neoliberal globalization;
  • It is also clarifying to distinguish Trump the gifted tactical trickster from Trump the right-wing ideologue;
  • There has occurred a normative decline rendering irrelevant in most war/peace settings international law, the UN, and human rights; this decline began before the Trump presidency but has been accelerated by Trump;
  • It would be misleading to overlook pre-Trump failings of American global leadership, especially in the period between the end of the Cold War and the 9/11 attacks; the pre-Trump continuities are more fundamental than discontinuities, especially in view of the bipartisan response to 9/11;
  • Two lines of criticism of Trump’s world order approach should be taken into account: I. blame by the established interests and the deep state for dismantling the liberal international order, damaging Western solidarity, retreating from hegemonic leadership; II. blame by political realists for abandoning the U.S. role as benevolent hegemon; such realist hold Trump responsible for his failure to do more to shape global policy along pragmatic and sustainable lines;
  • War-mongering toward Iran;
  • It would be in the human interest to be attentive to Mahathir’s alternative worldview, which articulates a perspective sensitive to the claims of small states and responsive to the claims of planetary realism; such an outlook necessarily rejects regressive embraces of ultra-nationalism that are occurring in several key countries at the present time.

 

  

 

[*]Based on lecture given at West Chester University, October 24, 2018.

[†]It is always important to appreciate that the problems of the Palestinian people are a direct result of the failure of the UN to find a formula for peace that upholds Palestinian basic rights. No other situation in the world is so directly related to UN unrealized initiatives.

[‡]This study titled “Israeli Policies and Practices Towards the Palestinian People: The Question of Apartheid,” was commissioned by the UN Economic and Social Council for West Asia (ESCWA), released March 15, 2017, and written by Virginia Tilley and myself.

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On Qatar and Gulf Geopolitics

3 Sep

Prefatory Note: The post below in the slightly modified text of an interview by the Tunisian journalist Awatef Ben Ali on behalf of the Qatar newspaper, Al Sharq, August 26, 2018.)

 

 

 

Q 1: From the perspective of international law, is the blockade on the State of Qatar and the 13 demands of the countries of the blockade legal and respecting international sovereignty?

 

A: The 13 demands of the Gulf Coalition plus Egypt, as well as the blockade of Qatar, are unlawful, violating Qatari sovereignty by using diplomatic and economic coercion to interfere with activities that are within the discretion of a sovereign state. It is a regional geopolitical tactic that tries to leverage superior power in ways that induce weaker and smaller states to sacrifice their rights under international law. The allegations of support for terrorism are without any factual foundation and are not supported by any credible evidence, and can be leveled at Qatar’s accusers with more justification than the allegation being made against Qatar. Not only are the 13 demands violations of international law, they are also disruptive of proper and customary diplomatic protocol, an assessment reinforced by Qatar membership in good standing of the GCC and its repeated calls for a negotiated end to the crisis.

 

 

Q 2: The State of Qatar resorted to the International Court of Justice in The Hague to prove the attacks on the rights of its citizens? How do you view these advocates as a legal perspective?

 

A: Recourse to the ICJ is appropriate in situations in which an international legal dispute exists, and cannot be resolved by normal diplomacy. Since the outset of the crisis in 2017 Qatar has repeatedly expressed its willingness to accept third party mediation of the dispute, and to do its part to reach a mutually acceptable political compromise. In contrast, the Coalition merely reiterated its demands and showed no willingness to end the crisis by peaceful negotiation. Qatar has every right to make use of its legal remedies under international law, and if it has a treaty right to resolve disputes with other Gulf states by recourse to the ICJ then this is a constructive step that represents a constructive approach to bring the crisis to a peaceful end in accordance with international law and in the interests of justice. Individuals harmed by this unlawful series of coercive steps should receive relief commensurate to the harm experienced, as well as being relieved of any burdens imposed by the Coalition’s policies.

 

 

Q 3: Qataris were deprived of Hajj. How does the law and the international community view this Saudi abuse?

 

A: As far as I know there is no international legal obligation that compels Saudi Arabia to allow Qataris to enter their country to complete the Hajj. There may be religious commitments and diplomatic traditions that have long been accepted by Saudi Arabia in upholding in good faith its role as custodian of the most holy of Muslim sacred sites. Such diplomatic traditions, as exhibited by patterns of practice over the course of many years, have created expectations that such entry to Saudi Arabia for such a religious purpose will be facilitated. Whether a regional or international legal duty should be established should be considered and discussed. It would seem reasonable to impose such a legal obligation for entry and security on Saudi Arabia because Muslims are obligated by their religion to do the Hajj at least once in their life, and this religious undertaking should not be obstructed by political interference. The translation of such a religious duty into a legal right is something that deserves careful consideration, perhaps in the context of expanding the right of religious freedom that is a legally protected international human right that may require more direct protection in view of these recent interferences with Muslim entry to carry out the Hajj.

 

 

Q 4: The Gulf crisis has reached a stage of stagnation. How do you see the efforts of the Gulf, American and European mediation?

 

A: As mentioned earlier, Qatar is ready to submit the crisis to mediation or any reasonable third party procedure, while the Gulf Coalition is adamant in its refusal.  As your question suggests there are plenty of willing mediators or third parties from the region and from Europe or the United States. The UN Charter underscores the duty of states to seek a peaceful solution of disputes that threaten international peace and security. Given the turmoil in the Middle East, the Gulf Crisis creates one additional flashpoint that could erupt at any time in dangerous and unpredictable ways. The idea of mediation is a means to give both sides a way of resolving the crisis without either side having to acknowledge defeat or endure some kind of diplomatic humiliation. It seem mandatory, in the spirit of the peaceful settlement of dispute, for the leaders of the Gulf Coalition to accept offers of mediation with a sense of urgency, and not prolong this regionally detrimental crisis that also causes harm to many individuals forced to sever their ties with Qatar, or have their relations with other Gulf countries disrupted in ways that result in unfair, arbitrary, and often heavy burdens.

 

Q 5: The State of Qatar plays a pivotal strategic role as a regional negotiator through its strong relationship with a number of major countries and its support to a number of countries, most recently Turkey. How do you evaluate this role?

 

A: An irony of the crisis is that Qatar has in recent years played a consistently moderating role in relation to several regional conflicts, and has engaged in relations beyond the Arab World that have produced economic, security, and diplomatic benefits for the region. Indeed, Qatar has used its wealth and influence in largely imaginative ways to establish mutually beneficial regional and international relationships. In this regard Qatar can be viewed as a small country that has played a diplomatic role beyond its size and capabilities, and could serve as a model of how to be effective as a sovereign state through reliance on the instrumentalities of ‘soft power.’

 

 

Q 6: How do you see the problematic developments between Saudi Arabia and Canada? And how do you to evaluate Saudi foreign policy. (The siege of Qatar, the war of Yemen, the Canadian crisis)?

 

A: Saudi Arabia behavior toward Canada expresses the same effort to bully foreign governments by threats and intimidating moves whenever its leadership feels that its policies have been criticized or its motives challenged. Canada’s criticism of Saudi behavior is quite appropriate given the international character of human rights standards, especially where, as here, legitimate Canadian interests are at stake.  The Saudi response to Canada is consistent with their belligerent behavior with respect to Qatar, as well as their outrageous tactics of warfare in Yemen, which include repeated bombing of civilian sites and interferences with the delivery of food and medicine in a country where there exists a strong internationally verified likelihood of mass starvation and where the population is suffering from a series of dire health challenges. The Saudi Arabian attack upon and intervention in Qatar is a moral and legal scandal that as with Syria displays the inability of either the United Nations or geopolitical actors to protect the peace and security of small countries that become targets of aggressive warfare.

 

 

Q 7: How do you see the role of Abu Dhabi and its quest to dominate the Gulf region?

 

A: I am not an expert on the behavior of the UAE in the region, but from recent appearances, their behavior resembles and reinforces the hegemonic ambitions of Saudi Arabia, and threatens to cause wider regional warfare by its support of policies of confrontation with Iran. It is important for peace, security, and sustainability that this kind of hegemonic diplomacy by UAE should be abandoned. Among other concerns, the region is very vulnerable to the hazards of global warming, and these aggressive moves cause political preoccupations that divert energies and resources from challenges that are present and need to be addressed before it is too late.

 

Q 8: How would ‘the Deal of the century’ affect Saudi Arabia and the UAE. How do you interpret this deal and its impact on the Palestinian cause and the Arab world?

 

A: Of course, in one respect it is premature to comment on ‘the deal’ as its contents have not been formally disclosed, and are the subject of rather divergent lines of interpretation.

 

It is a serious political mistake to attribute great importance to Trump’s uninformed boast to make ‘the deal of the century.’ All indications is that this is a deal that will never achieve the status of a serious conflict-ending proposal that is balanced and takes the rights of both peoples into account. From all indications, what Trump/Kushner have in mind seems to presuppose the surrender of Palestinian politicalrights, including the right of self-determination and the right of return, receiving in return ‘a bowl of porridge.’ Such a deal is and should be a non-starter in the post-colonial age, and will be rejected by every important Palestinian voice, including those living in foreign countries or in refugee camps in the region. It will be a costly diplomatic mistake for Saudi Arabia and the UAE to be seen as encouraging such a flawed approach to the Palestinian national struggle, an approach that would almost certainly include considering Jerusalem to be under the exclusive sovereign control of Israel. Trump has already indicated that moving the American Embassy to Jerusalem has removed the issue from any future peace negotiations. Israel has revealed and confirmed itself as an apartheid state by recently passing the Nation-State Law of the Jewish People denying equal rights to non-Jews as a matter of law. If Saudi Arabia and the UAE side with the Trump diplomacy that seeks to achieve a final betrayal of Palestinian rights, they will find themselves on the wrong side of history as well as antagonizing Arabs, Muslims, and partisans of human rights and justice throughout the world. Instead of the deal of the century that is a formula for the declaration of an Israeli victory and Palestinian defeat, the governments of the region should be demanding a peaceful solution based on dismantling apartheid structures, ending the blockade of Gaza, and acknowledging the rights of the Palestinian people.  From all appearances this will not be remembered as ‘the deal of the century’ but cast aside as ‘the most fraudulent bargain ever put forward in the century.’

 

 

Q: What is your international low opinion about the latest news published by New York Times describing the electronic spying operations of Israel and Emirites, including the targeting of the Emir of Doha and a lot of political leaders?

 

 

These spyware developments are serious but hardly new in what they seek to achieve. Throughout the history of international relations governments pay money and use a changing variety of methods to gain access to the secrets and private communications of their adversaries. What makes this issue surface as in these recent allegations of the use of spyware against private communications of the leaders of Qatar, including the Emir and his family, is the growing sophistication of the technology and its ability to penetrate what had previously considered to be secure channels of communication, evidently including surveillance of cell phone conversations. Another striking feature of the present atmosphere is the role of private sector profit motives either reinforcing or challenging broader foreign policy positions. For instance, the UAE has no formal relations with Israel, but it happily purchases spyware from an Israeli company, NSO, exhibiting a relationship that could not exist without the knowledge and likely the approval of the Government of Israel.

 

From the perspective of international law, espionage has always had a double reality. On the one side, it is an unlawful form of interference with the sovereignty of a foreign country, which the target government criminalizes with punishments inflicted at its discretion, while the government responsible for the espionage glorifies its agents, or falsely denies their dirty deeds. On the other side, its practice is so common, and taken for granted, that it is difficult to regard allegations of espionage or surveillance as other than propaganda, with the government complaining, pretending to be outraged while itself relying on similar mechanisms to carry out espionage for its own security or to advance its policies.

 

The only sensible approach at this time is to ask whether the spyware being developed so radically alters the privacy of leaders and the security of states as supporting an argument to negotiate a new treaty of prohibition, similar to the prohibition of certain weapons of warfare such as biological and chemical weapons. This is the issue that should be discussed and debated to discover whether there is a

practical way to regulate and implement any prohibition of unacceptably intrusive espionage that can be agreed upon. A novel feature of digital spyware is that can penetrate deeply into the most secret recesses of foreign societies without requiring any physicalintrusion, and therefor it is spyware without spies, and resembles drones on the rather frightening frontiers of warfare where the human presence is eliminated, and the battlefield populated by machines capable of causing devastation of the most severe character.

 

As the Edward Snowden disclosures demonstrated a few years ago, governments are also using this technology to establish elaborate surveillance networks directed at their own citizenry, undermining trust and freedom in democratic societies. Thus the issues raised by the new types of spyware extend beyond espionage as practiced in international relation, and touch upon the nature of constitutional democracy in the 21stcentury.

 

These are important issues for our time that need to be faced as openly as possible, but without a misleading exhibition of legalism and moralism, which thinly veils propaganda designed to blame others for behavior that is common to all international participants.

 

 

 

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Transforming World Order?

20 May

 

[Prefatory Note:  This post is my review of an important critical study of the deplorable conditions of law and politics in the current global setting. The author grounds his diagnosis and proposals on a philosophical interpretation of this subject-matter, but the radical vision although appealing gives little attention to how such a vision can become a political project, and so this learned text creates an impression of apolitical utopianism. This review will be shortly published in the American Journal of International Law.]

 

 

 

TRANSFORMING WORLD ORDER?

 

Eutopia: New Philosophy and New Law for a Troubled World.By Philip Allott. Cheltenham: Edward Elgar, 2016, Pp. xi, 368. Index. $135.

 

Grasping Allott’s Ambitious Undertaking

 

It is not by chance that Philip Allott, professor emeritus of international public law and fellow of Trinity College, University of Cambridge, UK,offers unusual guidance to readers in the opening sentence of the Preface to Eutopia: “The reader may want to read this book more than once, and to read it with unusual care” (p. vi). If anything, this advice is understated. Allott has written a learned, conceptually intense, and wildly ambitious book that demands the most dedicated attention taxing the perseverance of even the most diligent of readers. Allott challenges us on every page, really on each of its paragraphs given a systematic inflection by being numbered as if elements of a mathematical proof. Putting the bar of comprehension so high raises preliminary awkward questions—is the immense burden imposed on the reader sufficiently rewarded by the contribution that Allott makes to our understanding of the human condition? There is a second subsidiary question—is Allott’s distinctive methodology an effective and necessary means by which to raise and resolve such fundamental issues? and for what audience is this undertaking intended? I will return to these matters at the end of my attempt to assess Allott’s undertaking, which by any measure is extraordinary. It is nothing less than a philosophically coherent depiction of a comprehensive and desirable future for humanity designed to do nothing less than achieve the totality of human potentiality if properly enacted.

Allott attributes his sense of profound concern with the way the world was organized to his experience decades ago as a legal advisor in the British Foreign Office (1960–1973). It was there that he became aware of “all significant aspects of international government” leading him to the “settled moral conviction—that the nature of so-called international relations must be changed fundamentally and, with it, the nature of international law.”[1]Although the argument put forward is expressed abstractly, without civilizational specificity or very much by way of policy critique and example, there is no doubt that Allott is deeply offended and worried by his various encounters with political realism while serving the British crown. In a strong passage Allott vigorously rejects the major premise of the nuclear age, which he decries as “the development of the grotesquely named strategic nuclear weapons, as if mass murder and mass destruction could be strategies adopted by rational human beings.”[2]Such strong language suggests Allott’s repudiation of conventional wisdom in the world that he inhabits, which stands in stark contrast to the world that he believes can be brought into being by new thinking responsive to the overriding moral and political imperative of seeking a new world order in which all human beings can flourish, and find happiness, as well as address the formidable challenges of global scope that threaten the survival of the human species and much of its natural habitat.[3]

To begin with, it is important to realize that Eutopiais a sequel to an equally challenging and ambitious earlier work, Eunomia: New Order for a New World, published in 1990.[4]In a long Preface written especially for the 2001 publication of a paperback version, Allott gives readers important clues to what led his thinking in such radical directions, including his disdainful treatment of incremental global reform steps advocated by liberal internationalists that he believes irrelevant, given the magnitude of the challenges facing humanity. Allott is convinced that only a revolutionaryprocess can generate the capacity needed to enable humanity to produce a positive future for itself. Clarifying this orientation, Allott writes,

 

We are people with a permanent revolutionary possibility, the power to make a revolution, not in the streets but in the mind. And the long journey of revolutionary change begins with a single revolutionary step. We can, if we wish, choose the human future. We, the people, can say what the human future will be, and what it will not be.[5]

 

This appears to be affirming a radical form of political agency vested in the people, that is, change from below, although this is never asserted in this form or as an ingredient of democracy or transformative populism.

This crucial matter of orientation and perspective, with its Hegelian confidence in the power of ideas to transform and regulate behavior, leads Allott to distance himself from those who insist that “practicality” in the domain of politics is the only responsible approach to the advocacy of change and reform. Allott rejects the mainstream consensus that constrains debate within the confines of feasibility as interpreted by the powers that be: “To disprove a claim that a set of ideas is merely Utopian, it is useful simply to recall that those ideas contain a future which is not only possible but also necessary, and that the human future is always an imaginary potentiality until it becomes a present actuality.”[6]As Allott puts it elsewhere, “We make the human world, including human institutions, through the power of the human mind. What we have made by thinking we can make new by new thinking.”[7]This theme pervades Allott’s entire undertaking, but such an unconditional statement of benign mental potency seems to be oblivious to the darker forces of the unconscious that drive human behavior in destructive and self-destructive directions. The dominance of these darker forces has, in my view, entrapped the political imagination in an iron cage, accounting for the widespread feelings of despair on the part of those who confront the future with eyes wide open.[8]Allott is fully aware of this, shares this foreboding, but offers us the redemptive possibility of this mental revolution.

Allott writes in the Preface to his present book,

 

Since Eunomia was published, the globalising of human social and mental existence has proceeded at a pace and in ways that could not have been predicted then, and with ever more troubling consequences, and ever more serious threats and challenges. Chaotic globalizing is even negating humanity’s tentative unity-in-diversity. (P. viii)

 

We should appreciate that Eunomiaand Eutopiaasserted this dramatic diagnosis well before Donald Trump’s “America First” approach has aggravated the world order situation by a series of dramatic withdrawals of America’s engagement in cooperative forms of globalization with respect to such crucial policy contexts as climate change, international trade, global migration, and arms control (currently most pointedly, the decertification of the 2015 5+1 Agreement on Iran’s Nuclear Program). I think it is safe to assume that Allott’s worldview as of 2018 would move closer to moral panic, given Trump’s intensifications of “chaotic globalizing.” In the Foreword to Eutopia,Allott contrasts his earlier effort as one of meeting a “global socialchallenge” with the more momentous current undertaking in the book under review of overcoming “a universal humanchallenge” (p. ix). Putting this progression of perspective in relation to knowledge systems, Allott has shifted his outlook from that of social and jurisprudential engineer to that of global anthropologist or planetary ethnographer.

In Allott’s work the reader encounters a perplexing blend of pessimism about the existing human condition and of optimism about the limitless potentiality of the human species. In stirring words, “We are a species with unlimited potentiality that is failing in crucial aspects of its self-evolving and self-perfecting” (p. ix). What gives direction to Allott’s radical way of thinking is a post-Enlightenment belief in thought, reason, and knowledge as guiding action, best exemplified by the great philosophical traditions in the West that have been appraising the human condition for centuries. In this spirit he laments, as he rejects, the contemporary Anglo-American philosophic turn against its own tradition, uselessly shifting its energies to arcane language puzzles and esoteric logical quirks while abandoning reflections on and prescriptions for the desirable unfolding of humanity in light of its surrounding human circumstances.

In a short Afterword, Allott makes plain his oppositional stance to the hegemony of science and engineering modes of thought in the public domain where governments act and citizens form their policy preferences. Allott categorizes his own work as exhibited in a private domain and premised on what he calls “humanist thinking” (p. 341), that is shaped by values, wisdom, and erudition. At the same time, he asserts a positive role for such thought against the grain, needed in his view, to enable “the human mind . . . to imagine a better human future” and to activate “the human will” so as to “mak[e] a better future happen” (id.). He follows this with the haunting exposure of his own foreboding about the human future, ending the book with these words: “For how much longer?” (id.). As a reader I would say that the main message left behind here by Allott is the urgency associated with a revival of humanist thinking as a necessary precondition for meeting the challenges of our historical circumstance as a profoundly threatened species.

 

Sources of Inspiration

 

Allott is forthright about acknowledging three inspirational points of departure for Eutopia. Allott roots his extraordinary exploration of prospects for radical change in the utopian tradition of Thomas More who “enabled his readers to see their own social life with new eyes, and to judge it, and to imagine other ways of life” (p. vii). In effect, this kind of utopianism creatively provides a stimulus for critical reflections on the world as it is, as well as unleashing imaginative efforts to project on the screen of human expectations more satisfying and uplifting alternatives as potentially attainable.

Francis Bacon is his second inspirational spark, by way of his foundational anticipation of the degree to which scientific and technological innovation—in effect, “revolutions”—would open the doors of human understanding in dramatic new ways that led in the past to drastic forms of societal restructuring. Bacon “saw that a revolution in our understanding of the human mind could produce every other kind of revolution. He saw that the human mind can transform the human world. We are his beneficiaries to this day” (pp. vii–viii). Allott definitely follows Bacon in believing that altering authoritative templates of human subjectivity has the potential for unleashing transformative forces, and given his severe indictment of how human coexistence is currently (mis)managed on all levels of social interactions, he leaves the reader with this urgent sense of “revolution or doom.” The French philosopher, Jacques Derrida, raises comparable questions, yet without any prospect of revolutionary closure with a focus on what “living together well” might mean and what “democracy to come” could achieve.[9]Allott comes close to Derrida’s approach in a chapter entitled “New Society: Living the Good Life Together.”

Allott’s undertaking bears comparison with the World Order Models Project (WOMP), which proceeded from a comparable diagnosis to prescribe a series of “relevant utopias” or “preferred worlds” as necessary, desirable, and achievable.[10]It grounds its hope for the human future on the emergence of what might be called ethical universality(shared values associated with minimizing collective violence, social and economic well-being, humane governance, and ecological sustainability) that could foster collaborative undertakings of sufficient scope and depth.[11]By so doing it would become possible to overcome both the political fragmentation of state-centric world order and the civilizational diversity of post-colonial identity patterns. Such a relevant utopia depends more humbly than Allott’s revolution in the mind on a retuning of the rational mind and the sharpening of normative sensibilities to take account of the globalizing pressures being exerted by nuclearism, neoliberalism, and digitized networks.

The third source of inspiration affirmed by Allott is the canon of Western philosophy as a response to “a miasma of nihilism and despair, unable to comprehend or to redeem terrible real-world events that the human mind itself had caused” (p. ix). Only by turning to philosophizing in the classic tradition can there be any hope for “the necessary and urgent revolution in the human mind” (p. ix). Allott invests philosophical inquiry with an incredible capacity of human empowerment: “Without philosophy, we have little or no control over the making and the remaking of a better human future. Without philosophy, now and hereafter, the human species may not survive” (p. ix). He underscores this rather dismaying observation with the assertion that Eutopiais designed with no less an objective than bringing “the great and ancient existential debate back to life, before it is too late . . . the permanent possibility of making the human world into ‘a place of happiness’” (p. ix). I wonder whether this is a proper reading of the philosophic canon in which the warnings and admonitions of St. Augustine, Machiavelli, Nietzsche, and Schopenhauer unaccompanied by the view that history can be reshaped by a revolution in the precincts of the human mind. At the same time each of these thinkers, except Schopenhauer, did at least endorse a vision of a better human future, but not as an achievement of the creativity and normative capabilities of the rational mind.

 

Allott’s Distinctive Methodology

 

It should be understood that unlike Eunomia, which drew on Allott’s professional experience and academic specialty (international public law), Eutopia is a remarkable achievement of amateurship, that is, an immersion in philosophic thought for which the author had neither evident training nor prior publications, but great love and intimacy. In this regard it is informed by the philosophic canon of the West, especially as developed by British philosophers, but with its own rather peculiar and somewhat questionable methodology. In clusters of chapters entitled “The Human Condition,” “Human Power,” and “Human Will,” Allott sets forth the grounds and components of his belief in the potency of the human mind. Each chapter is, in turn, divided in two parts, with the first part consisting of numbered paragraphs containing in logical sequence, fundamental elements of the human mind such as memory, imagination, knowledge, and emotions. The second part of each chapter consists of a series of quotes from a wide spectrum of thinkers, mainly philosophers, from Plato and Aristotle to Marx, Lenin, and Karl Popper, and many, many others. Despite impressions of inclusiveness, there are some surprising names missing. For instance, for me none of three twentieth century philosophers who shed the most light on the human condition are even mentioned once: Hannah Arendt, Jacques Derrida, and Martin Heidegger. As well, non-Western thought is touched on very lightly both in the text and the complement of philosophical quotations: The Buddha and Gandhi are never mentioned, Confucius once.

I have no doubt that Allott is a learned student of philosophy who has developed more or less on his own, without specific debts in the course of his argument to earlier thinkers, a coherent cartography of the human mind as possessed of great agency. At the same time, this dualist methodology of putting the argument one place and the philosophic sources in an entirely separate place without any explicit effort to establish a linkage between the two seems questionable to me, and neither rationalized nor explained by Allott. Either the section of quotations is to be read as conveying somewhat randomly the spirit of philosophical conjecture with regard to a theme covered by the argumentative text, or the reader is left to do the immense work of finding for herself connections between an individual quoted passage and the argument of the text, which I can report in my case to have been a daunting, time-consuming, and not very rewarding, challenge.

There are other issues raised by this methodology. Allott does not explain his reasons for inclusion and exclusion. Also, his conception of philosophy is very capacious, extending to literary figures (Shakespeare, Tolstoy, Goethe, and T.S. Eliot), social and natural scientists (Durkheim, Max Weber, Harold Lasswell, and E.O. Wilson), and even cultural and political critics (Marshall McLuhan, Ruskin, and Thomas Paine). If each of these quotes was tied to passages in Allott’s text even as footnotes, or given a distinct commentary that explicated their linkage, I would likely applaud the approach. Left alone as distinct items to be read in sequence following the chapter text, seems either without redeeming value or requiring too much of an effort for the reward. In Eunomiawhere Allott is on much firmer ground in terms of professional competence, the methodology is more conventional, and although demanding because of the abstractness and systematic quality of the thought, and more effective in conveying a distinct critique and way forward. In this earlier book Allott’s chapters contain only the numbered paragraphs of argument with no second part that gives sources.

 

The Essential Role of Law

 

Allott’s vision is very much influenced by his appreciation of law as a fundamental ordering device with respect to all that transpires in the universe. In this regard “the laws of nature” and “scientific laws” are seen as achieving results that human-created law can only aspire to produce, especially with respect to international law. What underlies this emphasis on law is the fact that all activities in the cosmos exhibit for Allott a tendency to exhibit orderas a fundamental reaction to the alternative of chaos.In Allott’s view order is the result of law governed behavior.

In EunomiaAllott makes clear that the two modern theorists of international law who make contributions along the lines of a systemic reworking of law as constitutive of world order are Hans Kelsen and Myres McDougal.[12]What they have done to merit this affirmation is “to elevate international law on to a plane appropriate to a true legal system.” In Kelsen’s case, it involved detaching law from its social and political infrastructure so as to create an autonomous legal order of encompassing generality, with international law a derivative subsystem. While in McDougal’s case, the effort was almost opposite to that of Kelsen, integrating and connecting international law with the underlying social, economic, and political processes, and disciplining its operations by reference to what Allott calls “value-processing,” a phenomenon that is present in all forms of social activity.[13]

Allott calls McDougal “ahead of his time,” especially by undertaking the prophetic task of “preaching a new dispensation to a recalcitrant group of human beings who were almost beyond redemption, the participants in international relations” (p. IX). It is clear from a broader exposure to Allott’s thinking that he is referring to the hard power realists who exclude values from international relations, and thus marginalize international law, and whose operating procedures can perhaps be most easily comprehended by reference to Henry Kissinger’s theory and practice of international relations.[14]Allott concludes that neither Kelson nor McDougal reshaped the manner with which international relations, with its race to the bottom of human endeavor, was being conducted.

Nevertheless, Allott regards the challenge confronting him is to integrate a philosophically coherent and grounded legal order in the manner of Kelsen with a normatively driven legal order geared to the most general features of international life in the spirit of McDougal, and considered his earlier book as having such a purpose by proposing “a general theory of society and law which is potentially universal” (p. IX). He faults McDougal as rooting his approach too parochially in the distinctively Western democratic experience to be universally acceptable. These ideas about law are carried forward in Eutopia, but under the North Star of fear and trembling about the human future.

For Allott, “[l]aw is the primary social system serving the survival and flourishing of the human species” (p. 210). In a somewhat grandiose assertion he writes, “[b]y means of the idea of law we human being have taken power over everything, not least power over ourselves” (p. 209). In this era of seeming powerlessness against the pushbacks of nature or the eruption of irrational politics among publics and leaders, it becomes difficult to comprehend such celebrations of the role of law in regulating the human condition. So as to align lawmaking and rule of law with the present, Allott insists “[i]t is time for human beings to become a kind of philosopher” (p. 210). Presumably, such a sentiment should be read as his kind of philosopher who would tie the rule of law, constitutionalism, and international law to human survival and flourishing, the normative goals affirmed throughout as vital within our historical situation.

In a comprehensive chapter on law as a generic dimension of the human condition Allott gives his ideas about the functioning of law and order, as well as law and custom, law and power, law as a system, and law and value (pp. 210–31). With respect to international law discussed as a distinct system, “a primary purpose of the present volume,” Allott argues that it is necessary to promote “a fundamental reconstituting of international society, including the reimagining and remaking of the international legal system,” giving special attention to the relations between law and power (p. 215).

After reviewing the existing theories of law as applied to the international situation Allott is convinced that international law must be fundamentally changed so that it can serve the goals of human survival and flourishing, but how, and by whom? Allott calls for new law that is based on the primacy of these goals, reaffirming human agency in controlling the role of law, contending that we are the makers of law as “the supreme judges of the common good” (p. 232). In some tautological sense, yes, but as an existential matter of politics, psychology, history, and social structure, I would say, no to such an outpouring of anthropomorphic enthusiasm.

 

Conclusion

 

For anyone seeking a comprehensive world order vision of what exists and what might be, this book is definitely worth the effort, even if the result, as in my case, is to feel that its value is mainly the focus on the centrality of the law phenomenon rather than on depicting a plausible path to a desirable human future. I find Allott’s call for a revolution of the human mind as itself the means for asserting benign control over the human condition now so imperiled to be “whistling in the dark.” The structures of power and wealth are entrenched in support of the worst features of “lawlessness.” We are in the midst of a regressive era in which we, as a species, are losing the ecological, geopolitical, and ethical struggles for a benign human future.

There has been much discussion in scientific circles as to whether it is appropriate to label our age as that of the “anthropocene,” given the impact that human activity has on the sustainability of life on planet earth. Allott converts this acknowledgement into a hyperbolic version of anthropomorphism in which the human mind is crowned as supreme ruler over all that transpires on earth. I find this points our worried sensibilities in the wrong direction.

Although agreeing with Allott on the dangers of state-centricism and political realism, as well as on the goals of species survival and flourishing, I disagree on the dynamics of collective awakening. I would urge “humility” and “compassion” as the guiding values in any constructive reappropriation of the human future motivated by the desire to ensure survival and promote goals of living together happily as a species.

In the end, we can thank Allott for providing us with a vision that is rich in conceptual content and moral energy, a philosophic manual for the job that needs to be done. But even after a close reading, the roadmap is missing, and we are left with the imperative of providing one as a civilizational priority. We can agree with Allott that a new international law that is guided by human well-being rather than the old international law catering to the power/wealth lusts of powerful states is essential, but to identify such a need is far removed from its satisfaction.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1]Philip Allot, Eunomia: New Order for a New World, at xli (2001).

[2]Id.at lii.

[3]Allott sets forth his purpose in writingEutopiaalong these lines at several points (pp. 215, 260, 269, 296, 312–13).

[4]Indeed, it is not possible to ignore the first book in approaching the even more elaborate framework of Eutopia.

[5]Allott, Eunomia,supra note 1, at xxxiv.

[6]Id.at xxvii.

[7]Id.

[8]My formulation of the human non-responsiveness to these darker forces that currently pose such formidable challenges of global scope is set forth in an essay, Richard Falk, Does the Human Species Wish to Survive?,inRichard Falk, Power Shift: On the New Global Order253–62 (2016).

[9]See discussions of Derrida’s focus on living together in Living Together: Jacques Derrida’s Communities of Violence and Peace(Elisabeth Weber ed., 2012); also Fred Dallmayr, Democracy to Come: Politics as Relational Praxis(2017).

[10]SeeSaul H. Mendlovitz, On the Creation of a Just World Order: Preferred Worlds for the 1990s(1975);Richard Falk, A Study of Future Worlds(1975).

[11]SeeHans Küng. A Global Ethic for a Global Politics and Economics(1998).

[12]SeeAllott, Eunomia, supranote 1, at xlvii.

[13]All references in this and succeeding paragraphs are to id.at xlviii.

[14]SeeHenry Kissinger, World Order(2014). For critique, see Richard Falk, Henry Kissinger: Hero of Our Time, 40 Millennium155–64 (July 6, 2015).

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Attacking Syria

18 Apr

Attacking Syria

 

[Prefatory Note: This post is an assessment of the recent Syrian missile attack by the armed forces of the U.S., UK, and France from a variety of perspectives. It is a modified and expanded version of a text earlier published in The Wire  (Delhi) and Il Manifesto(Rome). I intend to write two further posts suggested by the controversy generated by the airstrikes of April 14, 2018 against sites associated with Syria’s alleged chemical weapons capabilities. These strikes raise questions of international law, domestic constitutional authorization for international uses of force, strategic logic, and moral imperatives and rationalizations. Each of these issues is capable of multiple interpretations raising further concerns about the appropriate location of the authority to decide given the nature of world order in the 21stcentury.]

 

 

Preliminary Reflections

 

At this stage it seems reasonable to wonder whether Syria was attacked because it didn’tuse chemical weapons rather than because it did. That may seem strange until we remember rather weighty suspicions surrounding the main accusers, especially the White Helmets with their long standing links to the U.S. Government, and past skepticism about their inflammatory accusations that critics claim reflect fabricated evidence conveniently available at crisis moments.

 

A second irreverent puzzle is whether the dominant motive for the attack was not really about what was happening in Syria, but rather what was nothappening in the domestic politics of the attacking countries. Every student of world politics knows that when the leadership of strong states feel stressed or cornered, they look outside their borders for enemies to blame and slay, counting on transcendent feelings of national pride and patriotic unity associated with international displays of military prowess to distract the discontented folks at home, at least for awhile. All three leaders of the attacking coalition were beset by rather severe tremors of domestic discontent, making attractive the occasion for a cheap shot at Syria at the expense of international law and the UN, just to strike a responsive populist chord with their own citizenry—above all, to show the world that the West remains willing and able to strike violently at Islamic countries without fearing retaliation. Beleaguered Trump, unpopular Macron, and post-Brexit May all have low approval ratings among their own voters, and seem in free fall as leaders making them particularly dangerous internationally.

 

Of course, this last point requires clarification, and some qualification to explain the strictly limited nature of the military strike. Although the attackers wanted to claim the high moral ground as defenders of civilized limits on military actions in wartime, itself an oxymoron, they wanted even more crucially (and sensibly) to avoid escalation, carrying risks of a dangerous military encounter with Russia, and possibly Iran. As Syrian pro-interventionists have angrily pointed out in their disappointment, the attack was more in the nature of a gesture than a credible effort to influence the future behavior of the Bashar al-Assad government, much less tip the balance in the Syrian struggle against the government. As such, it strengthens the argument of those who interpret the attack as more about domestic crises of legitimacy unfolding in these illiberal democraciesthan it is about any reshaping of the Syrian ordeal, or a commitment to upholding the Chemical Weapons Convention.

 

A third line of interpretation insisting that what was said in public by the leaders and representatives of the three attacking Western powers was not the real reason that the attack was undertaken. In this optic, it is pressure from Israel to mute President Trump’s feared slide toward disengagement from Syria as a prelude to a wider strategic withdrawal from the Middle East as a whole, a region that Trump in his speech justifying the attack calls ‘troubled’ beyond the capacity of the United States to fix. At least temporarily, from Israel’s point of view, the air strikes sent a signal to Moscow that the United States was not ready to accept Syria becoming a geopolitical pawn of Russia and Iran. Supposedly, the Netanyahu entourage, although pleased by the Jerusalem move, the challenge to the Iran Nuclear Agreement, and silence about the IDF lethal responses to the Gaza Great Return March, have new worries that when it comes to regional belligerence and overall military engagement, Trump will be no more help than Obama, who quite irrationally became their nightmare American president.

 

And if that is not enough to ponder, consider that Iraq was savagely attacked in 2003 by a U.S./UK coalition under similar circumstances, that is, without either an international law justification or authorization by the UN Security Council, the only two ways that international force can be lawfully employed, and even then only as a last resort after sanctions and diplomatic avenues have been tried and failed. It turned out that the political rationale for recourse to aggressive war against Iraq, its alleged possession of weapons of mass destruction was totally false, either building the case for war on the elaborately orchestrated presentation of false evidence or more generously, as awkwardly victimized by a hugely embarrassing intelligence lapse.

 

To be fair, this Syrian military caper could have turned out far worse from the perspective of world peace and regional security. The 105 missile attack war over in 3 minutes, no civilian casualties have been reported, and thankfully, any challenge to the Russian and Iranian military presence in Syria was deliberately excluded from the targeting plan, or to the Syrian government, thus taking precautions to avoidT setting in motion the rightly feared retaliation and escalation cycle. This was not an idle worry. More than at any time since the end of the Cold War sober concerns abounded preceding the attack that a clash of political wills or an accidental targeting mistake could cause geopolitical stumbles culminating in World War III.

 

Historically minded observers pointed out alarming parallels with the confusions and exaggerated responses that led directly to the prolonged horror of World War I. The relevant restraint of the April 14thmissile attacks seems to be the work of the Pentagon, and certainly not the hawk-infested White House. Military planners designed the attack to minimize risks of escalation, and possibly even reaching behind the scenes an undisclosed negotiated understanding with the Russians. In effect, Trump’s red line on chemical weapons was supposedly defended, and redrawn at the UN as a warning to Damascus, but as suggested above this was the public face of the attack, not its principal motivations, which remain unacknowledged.

 

 

Doubting the Facts

 

Yet can we be sure at this stage that at least the factual basis of this aggressive move accurately portrayed Syria as having launched a lethal chlorine and likely nerve gas attack on the people of Douma, killing at least 40? On the basis of available evidence, the facts have not yet been established beyond reasonable doubt. We have been fooled too often in the past by the confident claims of the intelligence services working for these same countries that sent this last wave of missiles to Syria. International maneuvering for instant support of a punitive response to Douma seemed a rush to judgment amid an array of strident, yet credible, voices of doubt, including from UN sources. The most cynical observers are suggesting that the timing of the attack, if not its real purpose other than the vindication of Trump’s red line, is to destroy evidence that might incriminate others than the Syrian government as the responsible party. Such suspicions are fueled by the refusal to wait until the factual claims could be validated. As matters stand, the airstrike seem hastened to make sure that the respected Organization for the Prohibition of Chemical Weapons (OPCW), when finally carrying out its fact finding mission would have nothing to find.

 

To allay reactions that these are ideologically driven criticisms, it is notable that the Wall Street Journal, never a voice for peace and moderation, put forward its view that it was not “clear who carried out the attack” on Douma, a view shared by several mainstream media outlets including the Associated Press. Blaming Syria, much less attacking, was definitely premature, and quite possibly altogether false, undermining the essential factual foundation of the coalition claim without even reaching the formidable doubts associated with issues of the unlawfulness and illegitimacy of an international use of non-defensive force without authorization by the United Nations.

 

 

Remnants of Colonialism

 

Less noticed, but starkly relevant, is the intriguing reality that the identity of the three states responsible for this aggressive act share strong colonialist credentials that expose the deep roots of the turmoil afflicting in different ways the entire Middle East. It is relevant to recall that it was British and French colonial ambitions in 1916 that established the blueprint for carving up the collapsed Ottoman Empire, imposing artificial political communities with borders reflecting European priorities not natural affinities, and taking no account of the preferences of the resident population. This colonial plot foiled Woodrow Wilson’s more positive proposal to implement self-determination based on affinities of ethnicity, tradition, and religion of those formerly living under Ottoman rule.

 

The United States fully supplanted this colonial duopoly as the colonial sun was setting around the world, especially after the Europeans faltered in the 1956 Suez Crisis. At the same time the U.S. quickly made its own heavy footprint known, feared, and resented throughout the region with an updated imperial agenda featuring Soviet containment, oil geopolitics, and untethered support for Israel. Even earlier in 1953 the Truman Doctrine and CIA support for the overthrow of the democratically elected and nationalist government of Mohammad Mosaddegh disclosed the extent of U.S. involvement in the region.  These strategic priorities were later supplemented by worries after 1979 about the spread of Islam and fears after 2001 that nuclear weaponry could fall into the wrong political hands. After a century of exploitation, intervention, and betrayal by the West, it should come as no surprise that anti-Western extremist movements have surfaced throughout the Arab World, and engendered some populist sympathies despite their barbaric tactics.

 

 

 

Violating International Law, Undermining the UN

 

It is helpful to recall the Kosovo War (1999) and the Libyan War (2011), both managed as NATO operations carried out in defiance of international law and the UN Charter. Because of an anticipated Russian veto, NATO, with strong regional backing in Europe launched a punishing air attack that drove Serbia out of Kosovo. Despite the presence of a strong case for humanitarian intervention within the Kosovo context it set a dangerous precedent, which advocates of a regime-changing intervention in Iraq found convenient to invoke a few years later. In effect the U.S. found itself backed into insisting on an absurd position, to the effect, that the veto should be respected without any questioning when the West uses it, most arbitrarily and frequently to protect Israel from much more trivial, yet justifiable, challenges than what this missile attack on the basic sovereign rights of the internationally legitimate government of Syria signifies.

 

American diplomats do not try to justify, or even explain, their inconsistent attitudes toward the authority of the UN veto, despite the starkness of the contradiction. Perhaps, it is a textbook example of what psychologists call cognitive dissonance. More accessibly, it is a prime instance of a continued reliance on the benefits of American exceptionalism. As the self-anointed guarantor of virtue and perpetual innocence in world politics the United States is not bound by the rules and standards by which its leaders judge the conduct of others, especially adversaries.

 

As a personal aside, with some apologies owed, I was the main author of the section of the report in my role as a member of the Independent International Commission on Kosovo, which put forth the rationale of ‘illegal but legitimate’ with respect to the Kosovo intervention. I had misgivings at the time, but was swayed by the shadow of Srebrenica and the difficulties of finding a consensus among the members of the Commission to put forth this line of argument, qualified to an extent in the text of the report, by invoking the exceptional facts and expressing what turned out to be the vain hope that the UNSC would itself create greater flexibility in responding to humanitarian crises of this kind and overcome what seemed at the time giving credibility to a pattern of justification for war making that could in the future be twisted out of shape by geopolitical opportunism. My fears have been realized, and I would now be very reluctant to endorse my own formulations that seemed, on balance the right way to go back in the year 2000. Now I lose sleep whenever I recall that I was responsible for what has become an insidious conceptual innovation, ‘illegal but legitimate,’ which in unscrupulous geopolitical hands operates as an ‘open Sesame’ rendering irrelevant Charter constraints.

 

The Libyan precedent is also relevant, although in a different way, to the marginalization of the UN and international law to which this latest Syrian action is a grim addition. Because the people of the Libyan city of Benghazi truly faced an imminent humanitarian emergency in March of 2011 the argument for lending UN protection seemed strong. Russia and China, permanent members of the UNSC, and other skeptical members, were persuaded to suspend their suspicions about Western motives and abstained from a resolution specifically authorizing the establishment of a No Fly Zone to protect Benghazi. It didn’t take long to disabuse Russia and China, mocking their trust in assurances by the NATO states that their objective were limited and strictly humanitarian. They were quickly shocked into the realization that actual NATO mission in Libya was regime change, not humanitarian relief. In other words, these same Western powers who are currently claiming at the UN that international law is on their side with regard to Syria, have themselves a terrible record of flouting and manipulating UN authority whenever convenient and insisting on their full panoply of obstructive rights under the Charter when Israel’s wrongdoing is under review.

 

Ambassador Nikki Haley, Trump’s flamethrower at the UN, arrogantly reminded members of the Security Council that the U.S. would carry out a military strike against Syria whether or not  it was permitted by the Organization. In effect, even the veto as a shield is not sufficient to quench Washington’s geopolitical thirst. It also claims the disruptive option of the sword of American exceptionalism to circumvent the veto when it anticipates being blocked by the veto of an adversary. Such duplicity with respect to legal procedures at the UN puts the world back on square one when it comes to restraining the international use of force by geopolitical actors. Imagine the indignation that the U.S. would muster if Russia or China proposed at the Security Council a long overdue peacekeeping (R2P) mission to protect the multiply abused population of Gaza. And if these countries went further, and had the geopolitical gall to act outside the UN because of an expected veto by NATO members of the Security Council and the urgency of the humanitarian justification, the world would almost certainly experience the bitter taste of apocalyptic warfare.

 

 

The Charter Framework is Not Obsolete

 

The Charter framework makes as much sense, or more, than when crafted in 1945. Recourse to force is only permissible as an act of self-defense against a prior armed attack, and then only until the Security Council has time to act. In non-defensive situations, such as the Syrian case, the Charter makes clear beyond reasonable doubt that the Security Council alone possesses the authority to mandate the use of force, including even in response to an ongoing humanitarian emergency. The breakthrough idea in the Charter is to limit as much as language can, discretion by states to decide on their own when to have recourse to acts of war. Syria is the latest indication that this hopeful idea has been crudely cast in the geopolitical wastebasket.

 

It will be up to the multitudes to challenge these developments, and use their mobilized influence to reverse the decline of international law and the authority of the UN. Most members of the UN are themselves so beholden to the realist premises of the system that they will never do more than squawk from time to time.

 

Ending Trump’s boastful tweet about the Syrian airstrike with the words ‘mission accomplished’ unwittingly reminds us of the time in 2003 when the same phrase was on a banner behind George W. Bush as he spoke of victory in Iraq from the deck of an aircraft carrier with the sun setting behind him. Those words soon came back to haunt Bush, and if Trump were capable of irony, he might have realized that he is likely to endure an even more humbling fate, while lacking Bush’s willingness to later acknowledge his laughable mistake.

 

 

Fudging Constitutional Authorization

 

Each of the attacking countries claims impeccable democratic credentials, except when their effect is to impede war lust. Each purports to give its legislative branch the option of withholding approval for any contemplated recourse to military action, except in the case that the homeland is under attack. Yet here, where there was no attack by Syria and no imminent security threat of any kind each of these governments joined in an internationallyunlawful attack without even bothering to seek domesticlegislative approval, claiming only that the undertaking served the national interest of their governments by enforcing the norms of prohibition contained in the Chemical Weapons Convention.

 

The American attempts to supply flimsy domestic justifications are decisively refuted by two widely respected international jurists, including one, Jack Goldsmith, who was a leading neoconservative legal advisor in the early years of the George W. Bush presidency. [Jack Goldsmith & Oona Hathaway, “Bad Legal Arguments for the Syria Airstrikes,” Lawfare website, Aprile 14, 2018]  Their article rejects arguments based on theAuthorization for the Use of Military Force, which in 2001 gave broad authority to use military force in response to the 9/11 attacks, but has no bearing here as Syria has never been accused of any link. The other legal claim that has been brought forward argues that the airstrikes are expressions of the president’s authority under Article II of the Constitution to serve as Commander in Chief, but any freshman law student knows, or should know, that this authority is available only if the use of force has been previously validated by Congress or is in response to an attack or a plausible argument of the perceived imminence of such an attack. Revealingly, the internal justification for Trump’s authority has not been disclosed as yet, and has been heavily classified, showing once again that government secrets in wartime are not primarily kept to prevent adversaries from finding things out, but as with the Pentagon Papers, are useful mainly to keep Americans in the dark about policies that affect their wellbeing and possibly their survival. It also gives the leadership more space for deception and outright lies.

 

It has been reliably reported that the Trump White House preferred to act without seeking Congressional approval, presumably to uphold the trend toward establishing an ‘executive presidency’ when it comes to war/peace issues, thereby effectively negating a principal objective of the U.S. Constitution to apply the separation of powers doctrine to any recourse to war. This also marginalizes the War Powers Act enacted into law in the aftermath of the Vietnam War in the vain attempt to restore the Constitutional arrangement after a period during which the President arrogated power to wage war and the policy acted upon produced the worst foreign policy failure in all of American history.

 

 

Where Does This Leave Us?

 

There are several levels of response:

 

–with respect to Syria, nothing has changed.

 

–with respect to the UN and international law, a damaging blow was struck.

 

–with respect to constitutionalism, a further move away from respect for separation of powers, thus marginalizing the legislative branch with respect to war/peace policies.

 

–with respect to oppositional politics, citizen protest, and media reactions, an apathetic atmosphere of acquiescence, with debate shifting to questions of purpose and effectiveness without virtually no reference to legality, and quite little, even to legitimacy (that is, moral and political justifications).

 

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The Gulf Crisis Reassessed

12 Mar

[Prefatory Note: The dysfunctionality of the Gulf Crisis, pitting a coalition of four countries, Saudi Arabia, UAE, Bahrain, and Egypt against tiny Qatar, is emblematic of the descent into multi-dimensional chaos, conflict, and coercion that afflicts much of the Middle East. Qatar may be tiny, but it is wealthy and has chosen for itself a somewhat independent path, and for this reason has experienced the wrath of the more reactionary forces operative in the region and world. At the center of the dysfunction is the manipulation of the political discourse on terrorism, pointing accusing fingers without any regard for evidence or fabrication.

 My text below seeks to put forward a dispassionate and objective analysis from the perspective of international law and diplomatic protocol of the so-called ’13 Demands’ (appended as an annex) directed at Qatar by the coalition almost a year ago. Despite having its own internal problems and challenges, Qatar has provided a relatively open political space compared to the rest of the region, encouraging media and educational diversity, giving asylum to political exiles and refugees, and showing sympathy, although inconsistently, for the aspirations of the Arab masses. This makes the Gulf Crisis a further setback for those seeking regional empowerment, sustainable development, and social, political, economic, cultural, and climate justice for the region as a whole. The intrusion of Trumpian geopolitics, especially the escalating confrontation with Iran, aggravates the disorders and dangers posed by the conflict patterns and irresponsible allegations with regard to terrorism now playing out in the region. I believe that by reflecting on the unreasonableness of the 13 Demands of the coalition it is possible to understand better the maladies affecting the entire region.]

 

 

A Normative Evaluation of the Gulf Crisis

 

The Gulf Crisis erupted on June 5 2017 when a Saudi Arabian led coalition of

four countries broke diplomatic relations with Qatar and Saudi Arabia closed its sole land border to Saudi Arabia and refused to allow their national air spaces to be used by flights from or to Qatar.[1] The imposition of a blockade is generally regarded as an act of war in contemporary international law, which is also a violation of the UN Charter’s prohibition of recourse to international force except in cases of self-defense against a prior armed attack. (UN Charter, Article 2(4), 51) These unilateral moves were then given a more concrete form on June 22 in the shape of ’13 Demands’ that instructed Qatar to comply within ten days, or face indefinite isolation. There followed failed attempts by Kuwait to mediate. From the start the leadership of Qatar expressed its immediate willingness for dialogue as the correct way to resolve the Gulf Crisis; as well, the United States and several principal countries in Europe urged a diplomatic resolution of the dispute as being in the interest of the Gulf region and the Middle East generally.

 

In this paper the 13 Demands of the Saudi coalition (Saudi Arabia, United Arab Emirates, Bahrain, and Egypt) are considered from the perspective of international law (including the UN Charter), the protocols of international diplomacy, and the framework of cooperation associated with the GCC framework. The paper analyzes these normative dimensions of international relations with special attention to the specific context associated with Qatar and the Coalition. This analysis is supplemented by a consideration of whether there are grounds for making some adjustments in Qatari policy based on its affinities with other states that are member of the GCC, including a large number of shared policy goals. From the outset, it seemed as if all sides in the conflict, at least outwardly, favored a prompt resolution of the crisis, but how this could be achieved given the sovereignty concerns of Qatar remains elusive 8 months later. The formidable obstacles to normalization are evident from the nature of the 13 demands of the Coalition and Qatar’s unshakable resolve to defend its independence and uphold its sovereign rights.

 

Attention is also given as to whether Coalition grievances have some policy merit if treated as a matter of ‘reasonableness’ within the GCC framework even if the 13 demands do not make the case that Qatar should change its behavior because its policies have been violating international law. Are there ways for the government of Qatar to alter its policies to satisfy the Coalition without sacrificing its fundamental identity as a fully sovereign state and member of the United Nations in good standing? In this regard, the internal values and expectations of the GCC with respect to the degree to which diversity of public order internal to the state is permissible and the extent to which domestic and foreign policy of a GCC member state needs to avoid causing impacts on the security of other GCC members are relevant considerations.

 

 

The 2014 Gulf Crisis

 

It seems important to realize that tensions between GCC members and Qatar have been present since the time of the GCC’s formation, but for reasons of internal cohesion these disagreements were for years kept below the surface. However, as these underlying tensions greatly intensified after the Arab Spring of 2011 it became increasingly difficult to maintain confidentiality as to policy differences. These differences climaxed as a result of the regional growth of influence of the Muslim Brotherhood, which was regarded as a serious threat by the Coalition states while being viewed rather more favorably by Qatar. It was hardly a secret that this rise of the Brotherhood was perceived as a hostile and potentially dangerous development by several GCC countries, and especially UAE and Saudi Arabia, as well as Bahrain.

 

In this regard, Qatar’s sympathy for the Arab uprisings and its relatively positive relationship with the Muslim Brotherhood struck a raw nerve in relations within the GCC, raising serious questions about the workability of the GCC as a collaborative alliance in the future. This discord broke into the open in March 2014 when Bahrain, Saudi Arabia, and UAE withdrew their ambassadors from Doha in an obviously coordinated move. In response, Qatar sought dialogue and reconciliation, and decided to leave its ambassadors in place rather than engage in reciprocal withdrawal. The Emir, Sheik Tamim, took a diplomatic initiative by seeking reconciliation in the course of several meetings with King Abdullah in Riyadh.

 

The Qatar position in response was articulated at the time by the then Minister of Foreign Affairs, Khaled bin Mohammed Al-Attiyah, who stressed early in the 2014 crisis that Qatar would not compromise with respect to its insistence on ‘independence’ for itself and other GCC members and in relation to showing support for peoples in the region seeking ‘self-determination, justice, and freedom.’ [Interview, Al-Arabiya, 5 March 2014] Such a position, especially after the MB did better than expected in elections, especially in Egypt, sharpened the tensions, with the Saudi-led Gulf monarchies being determined to do all in their power to promote counter-revolution in the region to the extent of criminalizing the MB as a terrorist organization. Qatar’s refusal to go along with such aggressive moves prompted the rupture in relations, but only temporarily.

 

With the encouragement of the non-aligned GCC members, Kuwait and Oman, there took place a GCC Summit in November 2014 that agreed to the Riyadh Supplemental Agreement that reaffirmed the GCC norms of non-interference and avoidance of behavior that poses a threat to the political stability of other members. GCC diplomatic relations were restored, and this first Gulf Crisis unrealistically viewed as having been resolved. The GCC was widely praised for surmounting its internal differences, and recognizing the strength of its fraternal bonds. Some optimistic commentators viewed this closing of ranks as a sign that the GCC had attained ‘maturity,’ but in retrospect the conflict was not overcome or compromised, but swept under the rug for the moment. The Riyadh Supplemental Agreement, although not a public document, apparently contains contradictory principles that allow both sides to find support for their positions. The Coalition can take heart from the commitment of participating governments not to adopt policies and engage in behavior that threatens other GCC members. Qatar can feel vindicated by the recognition and affirmation of the sovereign rights of GCC members.

 

Despite the formal resolution of the 2014 crisis it was evident even at the time that UAE, in particular, continued to be deeply opposed to what it regarded as Qatar’s positive relations with and public support for the MB. It was this rift as filtered through later developments, especially the sectarian and regional geopolitical opposition of the Coalition to Iran even in the face of difference of policy nuance among Coaltion member. The Coalition is not monolithic.. Nevertheless, certain tendencies are evident. Post-2014 Iran replaced the MB as the main adversary of the Coalition, while Qatar for entirely different reasons found itself in an economic and political position that demanded a level of cooperation with Iran, centered on the world’s largest natural gas field being shared by the two countries.

 

 

 

The Onset of the 2017 Crisis

 

While the American president, Donald Trump, was in Saudi Arabia for a formal state visit in May 2017, there were strong accusations directed at Qatar as funder and supporter of terrorism, not doing its part in the struggle against terrorism in the Middle East, views that were blandly endorsed by Trump without any plausible grounding in evidence. Following Trump’s departure, the Coalition hostile to Qatar was formed with the same GCC alignment of Bahrain, Saudi Arabia, and the UAE as antagonists and Kuwait and Oman as non-aligned. A major difference from 2014 was that the GCC initiative this time included the participation of Sisi’s Egypt, the new leader who had in 2013 overthrown the MB elected government and

who received major economic assistance from GCC governments.

 

On 6 June 2017 the anti-Qatar coalition announced intention to confront Qatar because of alleged support of terrorism throughout the Middle East. This declaration included the announcement that diplomatic relations would be suspended and Qatar’s land border with Saudi Arabia would be closed, air space blocked; in addition, 19,000 Qatari individuals given two weeks to leave Coalition countries, and 11,300 Coalitional nationals living in Qatar were ordered to return home or face serious penalties, an unusual example of ‘forced repatriation.’ Unlike 2014, Qatar withdrew its ambassadors from the three coalition members plus Egypt.

 

These actions met with strong Qatari objections, although coupled with an offer of dialogue and advocacy of a political solution. Qatar’s initiative did not lead to a favorable response from the Coalition membership. In fact, the Gulf Crisis was actually aggravated when the Coalition tabled its 13 Demands with an ultimatum demanding compliance within ten days.

 

It should be pointed out that this unilateralism by the Coalition, especially on the part of countries with many shared interests, common undertakings, and overlapping relationships, is directly opposed to the letter and spirit of Article 2(3) of the United Nations Charter: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” Here, the Coalition made no effort whatsoever to resolve the crisis peacefully, either by way of a call for diplomacy prior to taking coercive steps or through agreeing to mediation in the immediate aftermath of the crisis. Instead, these Coalition’s coercive moves caused harm to both the public interest of the state of Qatar and to private citizens of Qatar whose professional and personal lives were disrupted in serious ways that constituted violations of international human rights standards.

 

 

’13 Demands’ of Bahrain, Saudi Arabia, and UAE

 

The explicit focus of the 2017 crisis shifted its main attention to the campaign against terrorism, with a background allegation that Qatar had been funding and supporting terrorism in the Arab world for many years, and was thus an outlier in the GCC context. There were two dubious major assumptions accompanying the Coalition demands: (1) that the MB is correctly identified as a ‘terrorist organization;’ (2) that the members of the GCC Coalition, despite their own extensive funding of radical madrassas throughout the Muslim world, were less guilty than Qatar, of nurturing the terrorist threat in the Gulf and throughout the Middle East. In this respect, playing ‘the terrorist card’ by the Coalition obscured the extent to which the real explanation of the crisis had little to do with suppressing terrorism and much to do with confronting Iran, and thus disciplining Qatar in reaction to its disproportionate influence in the region, and controlling the terrorist discourse in a manner that corresponded with their strategy of considering as ‘terrorist’ any political movement that challenged in any way the legitimacy of Islamic dynastic rule. It is highly relevant that Qatar also is governed by dynastic monarchy, but in a manner that is far more consonant with international law than are its Coalition neighbors. Qatar is also more tolerant of diversity and dissent internally than other Coaltion members, but faces serious human rights challenges with respect to its non-Qatari residents who comprise the majority of the population.

 

The 13 Demands are set forth in a document released on June 6, 2017, giving a formal character to the Coalition’s disregard of international law and diplomatic protocol in its undertaking to control Qatar’s domestic and foreign policy. These demands can be examined from the perspective of international law and international human rights standards. It should be observed that the 13 demands are not presented in a reasoned way or with any attempt to be reconciled with either international law or diplomatic relations between sovereign states, especially here, where the relations are especially close given the juridical and practical collaborative activities of members of the GCC. As earlier comments make clear, there were clear tensions associated with Qatar’s perceived support for the MB, especially in Egypt, and its relative openness on issues of freedom of expression, which included criticism of Coalition countries.

 

What follows is brief commentary from the perspectives of international law and international diplomacy on each of the 13 demands:

 

  1. Curb diplomatic ties with Iranand close its diplomatic missions there. Expel members of Iran’s Revolutionary Guards and cut off any joint military cooperation with Iran. Only trade and commerce with Iran that complies with US and international sanctions will be permitted.

This primary demand may be the most important political item on the list of 13, but it has no foundation in international law. Qatar as a sovereign state has complete freedom to establish whatever relationship it chooses to have with Iran.

From a diplomatic perspective this ‘demand’ can be interpreted as a request from the closely aligned states that constitute the Coalition, but if so construed, it is an occasion for discussion, and policy coordination, not coercive threats and actions.

As for the obligations associated with sanctions, there is no legal reason for Qatar to implement U.S. sanctions imposed on Iran. Qatar does have a limited obligation to uphold UN sanctions, but the Coalition has no standing, except possibly within a UN setting, to raise such an issue.

 

  1. Sever all ties to “terrorist organisations”, specifically the Muslim Brotherhood, Islamic State, al-Qaida and Lebanon’s Hezbollah. Formally declare those entities as terrorist groups.

Formulating this request in the form of a ‘demand’ seems an inappropriate intrusion on a matter within the sovereign discretion of Qatar. As with the first demand, the call for severance of ties with the MB and Hezbollah are of great importance to the Coalition, but this is a political matter to be discussed either within the GCC or some other forum. For the Islamic State and al-Qaida there is little disagreement about there character as a ‘terrorist organization,’ but for the MB and Hezbollah the assessment is more contested, and thus a demand that they be “formally declared” as a terrorist organization is inappropriate from perspectives of international law and international diplomacy.

 

  1. Shut down al-Jazeeraand its affiliate stations.

Such a demand is in flagrant violation of the right of freedom of expression as embodied in authoritative international law treaties and part of customary international law relating to human rights. In effect, Qatar is put under pressure to commit such a violation. It is especially objectionable as al-Jazeera and its affiliates conform to high standards of journalistic professionalism, and do not open their media outlets to hostile propaganda or hate speech. Demand (3) contravenes Articles 18 & 19 of the Universal Declaration of Human Rights.

 

  1. Shut down news outlets that Qatar funds, directly and indirectly, including Arabi21, Rassd, Al-Araby Al-Jadeed and Middle East Eye.

The same legal rationale applies as set forth in response to Demand (3). Further, here there is an attempted interference with Qatar’s support for high quality media elsewhere that is a public good, giving the peoples of the Middle East and elsewhere exposure to alternative viewpoints on the main public issues of the day.

 

  1. Immediately terminate the Turkish military presencein Qatar and end any joint military cooperation with Turkey inside Qatar.

This demand attempt to intervene in the internal security arrangements of Qatar, and as such challenges its sovereign rights on a matter of prime national concern. It is an attempted violation of the central norms of peaceful relations, as set forth in the influential Declaration on Principles of International Law Concerning Friendly Relation and Co-Operation Among States in Accordance with the Charter of the United Nations, GA Resolution 2625, 1970, especially principles b-e, stressing sovereignty and non-intervention.

If Turkey was somehow posing an existential threat to Coalition countries, then a diplomatic appeal to a fellow GCC member might be a reasonable initiative. As matters now stand Turkey has a diplomatic presence in all Coalition members, except Egypt where relations are kept at the level of Charges d’Affiares. There is some friction between Turkey and the UAE on various issues, and so tensions exist, including in relation to resolving the Gulf Crisis. On its face, Demand (5) is entirely unreasonable from both the perspective of international law and normal diplomacy.

 

  1. Stop all means of funding for individuals, groups or organisations that have been designated as terroristsby Saudi Arabia, the UAE, Egypt, Bahrain, the US and other countries.

This may be the most extraordinarily inappropriate demand of all for two reasons. First, it removes from Qatar’s discretion the designation of “individuals, groups or organisations” that are deemed to be “terrorists.” This is an unacceptable intrusion on Qatar’s sovereign rights. And by including the United States it moves the source of Coalition grievance outside the framework of both the GCC and the Coalition. Egypt is also not a member of the GCC but at least a member of the Coalition.

It seems obvious that the effort here is to brand as terrorists those individuals and organizations associated with the MB and Hezbollah as directly targeted in Demand (2).

 

  1. Hand over “terrorist figures”and wanted individuals from Saudi Arabia, the UAE, Egypt and Bahrain to their countries of origin. Freeze their assets, and provide any desired information about their residency, movements and finances.

Demand (7) suffers from the same deficiencies as (6) plus the added indignity of such vague and inflammatory designations as “‘terrorist figures’ and ‘wanted individuals.’” Such a demand could be formulated in acceptable diplomatic language as pertaining to those who had been convicted of crimes by courts in Coalition, and were subject to extradition following formal requests made to the Government of Qatar. Extradition would not be available if the person requested was convicted of ‘political crimes’ or if the trial process was not in accord with international standards, or if no extradition treaty or practice exists.

 

  1. End interference in sovereign countries’ internal affairs. Stop granting citizenship to wanted nationals from Saudi Arabia, the UAE, Egypt and Bahrain. Revoke Qatari citizenship for existing nationals where such citizenship violates those countries’ laws.

 

Again as in Demand (7), the demanded action is a clear interference with core sovereign rights pertaining to the grant and withdrawal of citizenship of the State of Qatar, and as such an attempted violation of the norm prohibiting intervention. It seeks such a crude disregard of Qatari sovereignty as to constitute a grave diplomatic insult, which is a breach of protocol, especially inappropriate for countries supposedly collaborating on the basis of shared interests and common values within the GCC framework.

 

  1. Stop all contacts with the political opposition in Saudi Arabia, the UAE, Egypt and Bahrain. Hand over all files detailing Qatar’s prior contacts with and support for those opposition groups.

As with Demand (8) to make such a demand public is to breach diplomatic protocol, as well as to express in this context of threat and insult issues that are within the sphere of Qatar’s internal security policies and practices. If the context were different, it might be that Coalition could make confidential requests to Doha institutions and officials for cooperation with respect to specific individuals deemed dangerous to one or more GCC member states, and even to Egypt. It might also be observed that reliable reports by the BBC and elsewhere that the UAE was holding a Qatari prince captive as a possible replacement for the Emir of Qatar. Such reports make this demand particularly objectionable and hypocritical.

 

  1. Pay reparations and compensation for loss of life and other, financial losses caused by Qatar’s policiesin recent years. The sum will be determined in coordination with Qatar.

Demand (10) is on its face vague and unacceptable from the perspectives of international law and diplomacy. It is formulated as if “Qatar’s policies in recent yIears” can be assumed to be wrong and unlawful to such an extent as to justify a demand for “reparations and compensation.” This is not only an unlawful demand, it is irresponsibly asserted in a manner that any government would find to be insulting and totally unacceptable.

  1. Consent to monthly audits for the first yearafter agreeing to the demands, then once per quarter during the second year. For the following 10 years, Qatar would be monitored annually for compliance.

As with the prior demand, Demand (11) seems such a departure from the canons of public diplomacy as to be inserted as a deliberate provocation on a fundamental matter of Qatar sovereign rights. In effect, Demand (11) is seeking a humiliating public surrender of Qatar’s sovereignty, and a basic repudiation of the most fundamental standard of international diplomacy—the equality of sovereign states. Under no conditions, short of terms imposed on a defeated government after a war can such a requirement of “monthly audits” for a period of ten years be deemed reasonable or acceptable.

 

  1. Align itself with the other Gulf and Arab countries militarily, politically, socially and economically, as well as on economic matters, in line with an agreement reached with Saudi Arabia in 2014.

Unlike other demands, especially Demands (9)-(11), Demand (12) on its face seems relatively unobjectionable, and can be understood as a mere call for greater collaboration. It can also be read as unacceptably putting Qatar in a subordinate position of ‘aligning itself’ on policy matters with Coalition and unspecified other “Arab countries” rather than seeking policy coordination on the basis of sovereign equality and mutual respect. To the extent that it uses coercive language, it is diplomatically unacceptable.

 

  1. Agree to all the demands within 10 days Agree to all the demands within 10 daysof it being submitted to Qatar, or the list becomes invalid.

Such an ultimatum is an unlawful challenge to the sovereign rights of Qatar and a serious breach of diplomatic protocol in relations between sovereign states, accentuated by common membership in the GCC. There is no rationale or justification given for this kind of hegemonic language or attempted control of Qatar’s lawful and discretionary policies and practices. Although rendered invalid by its language if not accepted within ten days, its renewed assertion by the Coalition makes Demand (13) incoherent, and of ambiguous relevance to efforts to resolve the Gulf Crisis.

 

Conclusion:

The analysis and appraisal of the 13 Demands from the perspective of international law and diplomatic protocol reaches the conclusion that not one of the demands is reasonable, in accord with respect for the sovereignty of Qatar, and respectful of the proper canons of diplomacy governing relations among sovereign states that are based on equality and mutual respect. In summary, the 13 Demands are incompatible with the principles set forth in GA Res. 2625, referenced above, that sets forth the principles for lawful and friendly relations among sovereign states, as well as with Article 2 of the UN Charter. Take as a whole, the demands seem so incompatible with respect for Qatar as a sovereign state as to appear intended to isolate the country or even create an atmosphere that prepared the way for regime-changing coup. Such a scenario, even if not executed, is incompatible with international law and the norms of friendly relations among states, especially, as here, among aligned states.

It might be useful at some point to make public use of this point-by- point analysis of the 13 Demands to underscore Qatar’s strong and unassailable position in refusing to accede to these demands. The fact that the Coalition has recently affirmed their insistence that Qatar accept the 13 Demands as the precondition for resolving the Gulf Crisis suggests the importance of a convincing set of explanations for Qatar’s refusal to respond favorable to the 13 Demands either singly or collectively.

This seeming effort to compel Qatar to except external pressures, including a demand of compliance with U.S. sanctions imposed on Iran sets a precedent that could work against the sovereignty of other GCC members in the future. The diplomatic posture with respect to Qatar seems t0 assert a collective right of GCC members to intervene in internal affairs of another member to a far greater extent that present supernational actors have ever in the past claimed.

It seems doubtful that the 13 Demands have any constructive role to play in a diplomacy of reconciliation among Gulf countries. Indeed, it would seem that a necessary first step toward the initiation of a diplomacy of reconciliation would be for the Coalition to abandon any further reference to the 13 Demands as possessing any relevance whatsoever in shaping future relations between Qatar and the GCC and Coalition.

*****************************************************************

 

Annex: The 13 Demands

  1. Curb diplomatic ties with Iranand close its diplomatic missions there. Expel members of Iran’s Revolutionary Guards and cut off any joint military cooperation with Iran. Only trade and commerce with Iran that complies with US and international sanctions will be permitted.
  2. Sever all ties to “terrorist organisations”, specifically the Muslim Brotherhood, Islamic State, al-Qaida and Lebanon’s Hezbollah. Formally declare those entities as terrorist groups.
  3. Shut down al-Jazeeraand its affiliate stations.
  4. Shut down news outlets that Qatar funds, directly and indirectly, including Arabi21, Rassd, Al-Araby Al-Jadeed and Middle East Eye.
  5. Immediately terminate the Turkish military presencein Qatar and end any joint military cooperation with Turkey inside Qatar.
  6. Stop all means of funding for individuals, groups or organisations that have been designated as terroristsby Saudi Arabia, the UAE, Egypt, Bahrain, the US and other countries.
  7. Hand over “terrorist figures”and wanted individuals from Saudi Arabia, the UAE, Egypt and Bahrain to their countries of origin. Freeze their assets, and provide any desired information about their residency, movements and finances.
  8. End interference in sovereign countries’ internal affairs. Stop granting citizenship to wanted nationals from Saudi Arabia, the UAE, Egypt and Bahrain. Revoke Qatari citizenship for existing nationals where such citizenship violates those countries’ laws.
  9. Stop all contacts with the political opposition in Saudi Arabia, the UAE, Egypt and Bahrain. Hand over all files detailing Qatar’s prior contacts with and support for those opposition groups.
  10. Pay reparations and compensation for loss of life and other, financial losses caused by Qatar’s policiesin recent years. The sum will be determined in coordination with Qatar.
  11. Consent to monthly audits for the first yearafter agreeing to the demands, then once per quarter during the second year. For the following 10 years, Qatar would be monitored annually for compliance.
  12. Align itself with the other Gulf and Arab countries militarily, politically, socially and economically, as well as on economic matters, in line with an agreement reached with Saudi Arabia in 2014.
  13. Agree to all the demands within 10 daysof it being Agree to all the demands within 10 daysof it being submitted to Qatar, or the list becomes invalid.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] The Gulf countries, in addition to Saudi Arabia, were the UAE and Bahrain; the fourth member of the Coalition was Egypt. This group of four is referred to as ‘the Coalition’ in this text.

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Book Launch: Revisiting the Vietnam War: The Views and Interpretations of Richard Falk, edited by Stefan Andersson

2 Mar

Book Launch: Revisiting the Vietnam War: The Views and Interpretations of Richard Falk, edited by Stefan Andersson, Cambridge University Press, 2017.

 

 

Why the Legal and Political Debate on the Vietnam War Still Matters

 

 

[Prefatory Note: There has been recently a revival of interest in the Vietnam War, perhaps most notably as a result of the quite extraordinary Ken Burns & Lynn Novick’s ten-part, eighteen hour documentary film as aired on PBS, which although somewhat ideologically slanted toward an American audience has much illuminating footage, especially bearing on various Vietnamese perceptions of the war experience. I would also call attention to a series of articles by Matthew Stevenson describing his recent visit to Vietnam, which combines acute journalistic observation with impressive commentary on the war experience and the problematics of contemporary Vietnam. Stevenson’s valuable contributions are being serially published in Counterpunch, so far two of a promised eight.

 

I visited Vietnam in November of 2017 for ten days, and met with some Vietnamese officials I had known during the war, as well as with journalists and friends, seeking, especially, to understand whether the present generally harsh criticisms of suppression of dissent and authoritarian governance were justified, and came to mixed conclusions.

 

On human rights my suspicions of Western bias seemed entirely vindicated, that is, by reducing the effective scope of international human rights criteria to civil and political rights, and completely ignoring successes or failures in social and economic rights. Vietnam is illustrative of this pattern of claiming the high moral ground for the West in the post-colonial era by pointing to their human rights failings, completely overlooking Vietnam’s remarkable achievements of poverty reduction resulting from the pursuit of a needs based development strategy up to this point. With tens of millions of Americans and Europeans enduring varying degrees of material deprivation relating to food, health care, shelter, and jobs, their boastfulness about human rights has an increasingly hollow, even macabre, sound. Indeed, given the wealth of these societies and the scandalous disparities between rich and poor, it would be more reasonable to single out these countries for censure as notable laggards when it comes to human rights provided that economic and social rights are included in the mix. I am not minimizing the importance of civil and political rights, but for the majority of the population these rights pale in day to day significance if compared to failings in the domain of economic and social rights.

 

These comments introduce an online launch my own book, Revisiting the Vietnam War: The Views and Interpretations of Richard Falk, published by Cambridge University Press at the end of 2017. In fact, it is not really my book, but as much or more the work of my friend and colleague, Stefan Andersson who edited the text, supervised the production process, arranged for the blurbs, and above all, overcame my own lethargy. I add the newly written preface that I contributed to this collection of my past writings. After the post the back cover containing blurbs is shamelessly included to induce readers to rush to order the book from Amazon or your bookseller of choice.

 

The preface essentially expresses my view that the wrong lessons have been learned by the United States from its failure in Vietnam, and thus the cycle of regressive violence continues to torment vulnerable peoples in the non-Western world. This geopolitical and normative learning disability is at its core an effort to particularize the Vietnam experience, and allowing policy planners and think tank analysts to propose a series of tactical adjustments that will ensure that future Vietnams result in successful outcomes. Such a (mis) reading of Vietnam has contributed to the more recent counterinsurgency failures as in Afghanistan and Iraq, confirming the my central assessment that the real lessons of post-colonial world order are resisted because their proper interpretation would substantially discredit American reliance on global militarism as the foundation of its grand strategy around the world. Perhaps, most troubling to me, especially in light of this commentary on the evasion of international law throughout the Vietnam War, is the new more drastic set of evasions of international law that have followed ‘the war on terror’ initiated in response to the 9/11 attacks on the World Trade Center and the Pentagon.

 

In any event, my book, as well as the current flurry of interest in Vietnam, seeks to encourage citizens pilgrims throughout the world to remember Vietnam as a culmination of the anti-colonial wars and as the basis for a revisionist view of the agency of hard power in the 21st century. I ask indulgence for my miserable attempt to add a photo of the cover below, which is an injustice to the talented Canadian artist, Julianne Allmand. who created it under the title, ‘Sticky Fire.’ I am painfully aware that I could have done far better as a photographer had I entered the digital age twenty years earlier.]

 

 

 

 

 

 

The Harmful Legacy of Lawlessness in Vietnam

 

More than 40 years after the defeat of the United States in Vietnam the central lessons of that war remain unlearned. Even worse, the mistakes made and crimes committed in Vietnam have been repeated at great human, material, and strategic cost in several subsequent national settings. The central unlearned lesson in Vietnam is that the collapse of the European colonial order fundamentally changed the effective balance of power in a variety of North/South conflict situations that reduce the agency of military superiority in a variety of ways.[1]

What makes this change elusive is that it reflected developments that fall outside the policy parameters influential in the leadership circles of most governments for a cluster of reasons. Most fundamentally, governmental geopolitical calculations relating to world order continue to be based on attributing a decisive causal influence to relative military capabilities, an understanding at the core of ‘realist’ thinking and behavior. Within this paradigm military superiority is regarded as the main driver of conflict resolution, and the winners in wars are thought to reflect the advantages of hard power differentials. The efficiency and rewards of military conquest in the colonial era vindicated this kind of realist thinking. Europe with its dominant military technology was able to control the political life and exploit the resources of populous countries throughout Asia, Africa, and Latin America with a minimum of expenditure and casualties, encountering manageable resistance, while reaping the rewards of empire. The outcomes of World War I and II further vindicated the wider orbit of the realist way of thinking and acting, with military superiority based on technological innovation, quantitative measures, and doctrinal adaptation to new circumstances of conflict receiving most of the credit for achieving political victories.

The Vietnam War was a dramatic and radical challenge to the realist consensus on how the world works, continuing a pattern already evident in nationalist victories in several earlier colonial wars, which were won against earlier expectations by anti-colonial forces. Despite these illuminating results of colonial wars after World War II the American defeat in Vietnam came as a shock. The candid acknowledgement of this defeat has been twisted out of recognition to this day by the interpretive spins placed upon the Vietnam experience by the American political establishment. The main motive of such partisan thinking was to avoid discrediting reliance on military power in the conduct of American foreign policy and to overcome political reluctance in the American public to fund high levels of military spending. Until the deceptive military victory in the First Gulf War of 1991, the policy community in the United States bemoaned what it described as ‘the Vietnam Syndrome,’ which was a shorthand designation for the supposedly unfortunate antipathy among the American citizenry to uses of hard power by the United States to uphold American geopolitical primacy throughout the world.

The quick and decisive desert victory against the imprudently exposed Iraqi armed forces massed on the desert frontier compelled Iraq to withdraw from Kuwait, which it had recently conquered and annexed. This result of war making was construed to vindicate and thus restore realist confidence in American war making as a crucial instrument of world order. On closer examination, this enthusiasm for war generated by the almost costless victory in the desert terrain of the First Gulf War involved a category mistake on the part of American leaders, or so it seems. It confused the continuing relevance of military capabilities in conventional war encounters between sovereign states with the declining utility of military supremacy in wars of intervention or counterinsurgency wars, that is, violent conflicts between a foreign adversary and a national resistance movement. It should have been clear to expert commentators that the Vietnam War was an example of a massive foreign intervention being defeated by a skillfully mobilized and efficiently led national movement, and in this respect totally different from First Gulf War with respect to terrain of battle and what was at stake politically for the two sides.

Comprehending why the United States mishandled not only the war in Vietnam but misconstrued its result, is associated with earlier unlearned lessons that involved a misinterpretation of the lost colonial wars, most relevantly, the French defeat in the Indochina War despite the long and deep French presence. In retrospect it was evident to all that the French had failed to grasp the extraordinary resolve that informed the nationalist motivations of the Vietnamese and more than compensated for their military weaknesses, empowering Vietnamese society to endure severe and prolonged suffering to achieve eventual political independence and national sovereignty, and the accompanying collective sense of national pride. Under the inspirational leadership of Gandhi, India achieved independence and recovered sovereignty through a militant nonviolent struggle that by heroic perseverance overcame the grim and unscrupulous determination of 10 Downing Street to retain ‘the jewel’ in the crown of the British Empire whatever the costs of doing so might turn out to be. Whether articulated as the rise of ‘soft power’ or explained by reference to the imbalance between imperial commitments and nationalist perseverance and local knowledge, the story line is the same. The intervening foreign or alien power has lower stakes in such struggles than does an indigenous population effectively mobilized as a movement of national resistance. Colonial powers were slow to recognize that moral and political resistance to their presence was growing more formidable as the ideology of nationalism spread around the world. Resistance become more credible, and withstood a series of prodigious colonial efforts to retain control over colonized peoples, but as these struggles proceeded the former colonial overlords were at varying stages forced to recalculate their interests, and mostly decided that it was better to give up their colonial claims and withdraw militarily than further commit to what had become a lost cause.

We can also interpret this historical turn as reflecting the disparities between the political will of a people fighting for self-determination and a foreign government linked to private sector interests that are trying to retain the benefits of control over a distant country for the sake of resources, prestige, settler pressures, geopolitical rivalry, or a combination of these factors. From the end of World War II onwards, this imbalance of political wills seems to offer the best predictor of the outcome of colonial wars or military interventions in counterinsurgency struggles. In this regard, the French defeat in Indochina should have delivered a cautionary message to the Americans. In fairness, it should be pointed out that the French themselves didn’t learn much from their Indochina defeat, going on to wage and lose an even more damaging colonial war in Algeria eight years later. The noted French journalist, Bernard Fall tried hard to warn the Americans of the great difficulty of achieving a reversal of the French experience in its Indochina War.[2] The French had higher than normal stakes in Indochina. It was to a significant extent ‘a settler colonial’ state, meaning that the French human and cultural presence had sunk deep roots that raised the stakes of withdrawal for France, an experience repeated on a larger scale in Algeria, but producing the same outcome but only after inflicting massive suffering on the native population. The American intervention in Vietnam was primarily motivated by the ideological rivalry of the Cold War, and did not have the high level of material and human interests that led the French to fight so hard to crush the Vietnamese and Algerian challenges to their colonial rule.

The ‘settler colonial’ situation of Algeria, and even more so, South Africa and Israel, complicate the overall analysis. In the event of settler control of the colonial state, the issue of foreign or alien rule becomes blurred, and the question of the identity of ‘the nation’ is itself contested in ways that are very different from the situation of a colonial administration governing on behalf of a European home country or metropole without any pretension of belonging to the occupied nation as if it was one’s own. Each situation has its own originality. For Jews in Israel who claim a biblical and ancestral mandate, and lacking a default homeland option in a distinct territory possess an intense political will to preserve their control of Palestine. The indigenous Arab population of Palestine also has a near absolute will to resist dispossession from their native lands, and are unwelcome elsewhere in the region, having experienced vulnerability to changes in local circumstances and discrimination in neighboring Arab countries. For this reason, as reinforced by the special relationship of Israel with the United States, the Palestinians are waging an uphill battle in which their supposedly inalienable rights of self-determination have been for decades squeezed almost beyond recognition.[3]

Against this background, American reasoning about the Vietnam War displayed what later would be called ‘the arrogance of power,’ that is, the blind faith in the efficacy of its hard power superiority in conflict situations, whether nuclear, conventional, or counterinsurgent.[4] The United States emerged from World War II as the dominant geopolitical actor in the world, having turned the tide of battle against Germany and Japan, as well as developing and using its monopoly over the ultimate weapon against Japan at the end the Pacific war by dropping atomic bombs on Japanese cities. If Germany and Japan could not resist the American juggernaut, who could expect a country that Lyndon Johnson and Henry Kissinger called ‘a fourth rate Asian power’ to resist and repel the American military machine? In the end, it was the greater Vietnamese will to persevere and their cultural resilience that overcame American firepower, as well as the unsurpassed anti-colonial legitimacy of the Vietnamese struggle, which contributed to the rise of a robust worldwide anti-war movement of solidarity, including within the United States. By the mid-1960s it had become increasingly evident that the side that won the legitimacy war would prevail politically even if compelled to endure devastating losses on the battlefield and throughout the country.[5]

The most serious blind spot of the realist paradigm is its inability to take account of its weaknesses with respect to legitimacy as a dimension of political life. This became manifest in the Vietnam setting. The American claims with respect to its presence in Vietnam were essentially ideological and geopolitical, the importance of avoiding the spread of Communism and thus containing the expansionist challenge being allegedly mounted by the Soviet Union and China. In opposition to such reasoning were the historically more influential claims in support of nationalism and the right of self-determination, especially in contexts involving struggles of a colonized people against their colonial masters. Vietnamese legitimacy claims with respect to the United States were further validated by the flagrant disregard of international law constraints and the impact of this disregard on world public opinion, which contributed to mounting American domestic opposition to continuing the war.[6]

This collection of essays written in support of the relevance of international law to the shaping of American foreign policy during the Vietnam Era remains instructive as the 21st century unfolds. The United States has continued to pursue a dubious diplomacy punctuated by military interventions in distant countries, fighting a series of losing counterinsurgency wars after Vietnam, remaining unresponsive to the constraints on recourse to war and war fighting embodied in international law and the UN Charter. The realist consensus, regarding law and morality as dispensable and marginal impediments to sustaining geopolitical effectiveness in world politics, continues to govern the policymaking entourage that shapes war/peace decisions, and has produced a string of costly defeats (especially, Afghanistan and Iraq) as well as badly damaged America’s reputation as a global leader, which in the end depends far more on its legitimacy credentials than on its battlefield prowess, but suffers most when it both loses on the battlefield and should lose if law and morality are taken into account. It is the contention of these essays that adherence to international law is vital for world peace and in the national interest of all countries on all occasions, and this includes the United States.

So-called ‘American exceptionalism’ operates as a free pass in Washington to disregard the rules applicable to other sovereign states, but as the recent history of international conflicts reveal, it does no favors to the United States or its people, although it may further the careers of diplomats and enhance the profits of special interests. Further, it seems evident that the continuing exercise of discretion to ignore legal constraints on the use of international force will be accompanied by repeated disappointments in the conduct of foreign policy for this most mighty country in all of world history and will also continue to erode its legitimacy credentials.

 

The 9/11 attacks gave the United States a chance to start over, undertaking a response to mega-terrorism within the framework of the rule of law that would have been a great contribution to building up the global rule of law and charting a new path toward sustainable global governance. Instead, a ‘war on terror’ was immediately launched that amounted to a declaration of permanent warfare, undermining the authority of international law and the UN, and perversely leading to the spread and intensification of terrorist activities. The defaming scandals of Guantanamo, Abu Ghraib, and ‘enhanced interrogation’ together with the failure to prosecute those responsible for authorizing and perpetrating ‘torture’ during the presidency of George W. Bush confirm the deeply entrenched refusal of the U.S. Government to self-enforce minimum standards of international criminal accountability, and its obvious endorsement of a flawed international criminal law regime that currently rests on the major premise of geopolitical impunity as interpreted by way of American exceptionalism. The emergence of ISIS, as had been prefigured in Afghanistan by the rise of Al Qaeda and occasioned by American occupation policies in Iraq, is the ultimate blowback experience betokening an erroneous hard power opportunism in Washington misleadingly chosen as the best approach to national and global security.

The essays in the volume also explore the failure to abide by the experience after World War II, which included imposing criminal accountability on those surviving German and Japanese military and political leaders responsible for the commission of state crime centering on the recourse to and prosecution of aggressive warfare, as well as the mass atrocities epitomized by the death camps. By now it is confirmed that the Nuremberg and Tokyo Judgments although respectful of defendants’ rights and substantively justified were in a larger sense ‘victors’ justice’ by exempting the crimes of the winners from legal scrutiny.[7] The principles of law applied to the losers at Nuremberg and Tokyo were never intended to be applied to the winners, or to those who would after 1945 control the geopolitical dimensions of world politics and dominate its various episodes of warfare.[8] Criminal accountability in relation to warfare was cynically applied to the losers and those in subordinate positions of state power throughout the world, and still is.

Into this normative vacuum stepped the rising activism of civil society, and this became initially disclosed as part of the rising opposition to the Vietnam War. The great British philosopher and political activist, Bertrand Russell, convened a tribunal of conscience composed of moral and cultural authority figures with international stature to gather the best evidence available of American criminality in the ongoing Vietnam War. This bold initative filled the institutional vacuum created by the lack of political will among governments or at the UN to carry forward the Nuremberg impulse with respect to accountability of individuals.[9] In effect, the project of imposing criminal accountability on the strong has become an exclusive undertaking of global civil society, although with some collaboration from moderate governments that do not enjoy the status of being geopolitical actors. It was this transnational collaboration between governments and civil society actors that generated the momentum leading to the unexpected establishment of the International Criminal Court in 2002, but as yet this new institution has given little indication that it possesses the capacity and even the mandate to extend the logic of accountability to geopolitical actors, above all the United States and its closest friends.

Reviewing the international law debates that took place during the Vietnam War remains critically relevant to any reform of American foreign policy relating to these war/peace issues. As in Vietnam, adherence to international law would have been consistently beneficial normatively (upholding law, protecting the vulnerable, avoiding casualties), geopolitically (respecting support for the ethos of self-determination and human rights as evidenced by the flow of history since 1945), and ideologically (recognizing that ‘terrorism’ is a law enforcement issue, not an occasion for war making; realizing that nationalist ideology does not translate into neighbors becoming ‘falling dominos’).

The lesson that most needed to be learned in the Vietnam Era, and remains unlearned 40 years after the ending of war, is the practical and principled desirability of adherence to international law in war/peace situations. Systemic violations of international law lead to geopolitical disappointment, human suffering, societal devastation, and a nihilistic atmosphere of international lawlessness. In contrast, habits and policies of adherence to international law, especially with respect to war/peace issues and matters of national and global security, privileges an emphasis on diplomacy, international cooperation, law enforcement, UN authority, as well as generates the self-confidence of political communities to be respectful of prudent restraint and develop greater reliance in pursuit of national goals on international procedures, norms, and institutions. Such a shift away from lawlessness is, of course, by no means a guaranty of peace and justice, but it provides the crucial foundation for creating better prospects for human wellbeing in the 21st Century.

In my preoccupation during the years between 1963 and 1975 I became obsessed with the Vietnam War, and how I might act as a scholar and citizen to bring this imprudent, unlawful, and immoral war to an end. My writing in this period reflects a process of deepening engagement, and an evolving shift of focus and orientation. In my initial articles on the war I was seeking to demonstrate the unlawfulness of the underlying intervention in Vietnam, with a special emphasis on the American expansion of the war from a struggle for control of the state in what was then treated as ‘South Vietnam’ to a conflict that included then ‘North Vietnam,’ which altered the nature of the war from an internal war in the South to a war between the two political communities that comprised Vietnam after the French defeat in 1954, and persisted until the American defeat in 1975. In the early selections represented here, the international law arguments were underpinned by a realist assessment that rested on the informed belief that this was an ill-considered commitment of U.S. military forces for the sake of a very dubious conception of national interests, which centered on an imprudent opposition to the anti-colonial and pro-nationalist flow of history.

My attitudes toward the war, while never losing the central conviction that the United States was engaged in Vietnam in a manner that violated the most fundamental norms of international law, shifted in the direction of viewing the tactical conduct of the war as increasingly raising questions of international criminal accountability. This shift is reflected in the later selections from my writing that emphasize the relevance of the Nuremberg Principles to the American involvement in Vietnam.[10] I became convinced that a one-sided war in which high technology weaponry was deployed against a totally vulnerable peasant society was an intrinsically criminal enterprise, and additionally almost inevitably gave rise to battlefield atrocities as mythified through treating the My Lai massacre as a singular event.[11] I was also struck by the degree to which the geopolitical status of the United States marginalized the United Nations and limited the relevance of international law to a domestic debate within the United States between the government and its critics in Congress and throughout American society.

One enduring effect of this debate was to give the American anti-war movement the confidence to challenge government policy despite the inhibitions of the Cold War that made any seeming sympathy for the Communist side in the Vietnamese struggle grounds for suspicion and media hostility, particularly in the early years of the war. It is only toward the end of the Vietnam War when the government lost the trust of a large portion of the citizenry and split the foreign policy establishment, as well as becoming clear that the sacrifice of young American lives was not going to end in a military victory, that the prudential arguments against continuing the war began to outweigh the ideological case for its prosecution. This development also had the effect of pushing public opinion in an anti-war direction.[12]

 

 

 

 

 

 

 

 

 

 

 

[1] In the midst of the Vietnam War I edited a four volume series on the relevance of international law to the policies guiding decision makers and policy advocates on both sides of the debate that raged throughout the war.

[2] See Bernard Fall, Street Without Joy: The French Debacle in Indochina (Mechanicsburg, PA: Stackpole Books, 1961).

[3] For a range of views see Jeremy R. Hammond, Obstacle to Peace: The U.S. Role in the Israeli-Palestinian Conflict (Worldview Publications, forthcoming 2015); Rashid Khalidi, Brokers of Deceit: How the U.S. Has Undermined Peace in the Middle East (Boston: Beacon Press, 2013); Peter Bauck & Mohammed Omer, eds., The Oslo Accords, 1993-2013 (Cairo, Egypt: American University in Cairo Press, 2013); For the U.S. /Israeli spin on the peace process see Dennis Ross, The Missing Peace: The Inside Story of the Fight for Middle East Peace (New York: Farrar, Strauss & Giroux, 2004).

[4] J. William Fulbright, The Arrogance of Power (New York: Random House, 1966).

 

[5] As argued in Richard Falk, Palestine: The Legitimacy of Hope (Washington, D.C.: Just World Books, 2014).

 

[6] In the Name of America (New York: Clergy & Laity Concerned About Vietnam, 1968).

[7] An important early account along these lines in the Japanese context is Richard H. Minear, Victors’ Justice: The Tokyo War Crimes Tribunal (Princeton, NJ: Princeton University Press, 1971).

[8] Justice Robert Jackson, the American prosecutor, did argue to the tribunal in Nuremberg that the legitimacy of the judgment against the German defendants depended upon the victors in the future accepting the same framework of accountability, but such words fell on deaf ears in the capitals of the world powers.

[9]The proceedings of the Russell Tribunal can be found in John Duffett, ed., Against the Crime of Silence: Proceedings of the Russell International War Crimes Tribunal, Stockholm-Copenhagen (New York: Bertrand Russell Peace Foundation, 1968).

[10] These issues were fully explored in Richard Falk, Gabriel Kolko, and Robert Jay Lifton, eds., Crimes of War: A legal, political-documentary, and psychological inquiry into the responsibility of leaders, citizens, and soldiers (New York: Random House, 1971).

 

[11] For the initial expose see Seymour M. Hersh, My Lai 4: A Report on the Massacre and its Aftermath (New York: Random House, 1970). See also Kendrick Oliver, The My Lai Massacre in American history and memory, (Manchester: Manchester University Press, 2006).

 

[12] The release of the Pentagon Papers was a milestone along the path that led from a pro-war consensus to a rising tide of opposition. See interpretation by Daniel Ellsberg, Secrets: A Memoir of Vietnam and the Pentagon Papers (New York: Penguin Books, 2002).

 

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Peace and Justice for the Palestinian People: a Conversation

4 Feb

[Prefatory Note: The post below is a modified text of an interview conversation with Khourosh Ziabari, initially published on the website of the Organization for Defending Victims of Violence on February 4, 2018, <info@odvv.org>] </info@odvv.org>

 

 

Peace and Justice for the Palestinian People: a conversation

 

Khourosh Ziabari: Humanitarian crisis in Gaza has entered its 11th year as the crippling siege by Israel is making the living conditions of Palestinians more complicated with time. The blockade in what is popularly referred to as the world’s “largest open-air prison” means growing unemployment, people having intermittent access to pure water, the economy is almost dysfunctional and poor infrastructure and lack of funding make the two-million population vulnerable to heavy rains and extreme weather. The former United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories believes Israel is not doing enough to make the living conditions of Gaza Palestinians better, and the United States is also failing to play a constructive role.

 

Richard Falk is a professor emeritus of international law at Princeton University, who has published and co-edited some 40 books on human rights, international humanitarian law and the Israeli-Palestinian conflict.

In an interview with the Organization for Defending Victims of Violence, Prof Falk shared his views on the recent controversy surrounding President Trump’s proposal to move the U.S. Embassy to Jerusalem and the ongoing humanitarian emergency in the Palestinian territories.

 

Q: In a piece recently published on Foreign Policy Journal, you talked of Palestine as being a hugely discriminated against nation, which in the recent decades has undergone major hardships due to the inability or reluctance of the United Nations to take steps to balance the needs of the Palestinian people against the political leverage of Israel and its allies. The improvement of the living conditions of the Palestinians depends on a logical and justifiable way out being found to end the conflict. Is the international community really unable to come up with a sustainable and all-encompassing solution?

 

A: The failure of the international community with respect to the Palestinian people and their legitimate grievances is due to several special circumstances; most importantly, the underlying determination of the Zionist movement to control most of Palestine as delimited by the British mandate. In this respect, assertions by Israeli leaders of their desire for a political compromise should never been accepted at face value, and are patently insincere, public relations gestures seeking to influence international public opinion, and convey the false impression that Israel is seeking a political compromise with Palestine.

 

Secondly, this Zionist ambition is now strongly supported by the United States despite not being clearly articulated by the government of Israel. This obscurity, essentially a deception, allows the international community to act as if a peace process is capable of producing a solution for the conflict even though Israel’s actions on the ground point ever more clearly toward an imposed unilateral outcome, which essentially is a unilateral insistence that the conflict has been resolved in favor of Israel.

 

Thirdly, the ‘special relationship’ between Israel and the U.S. translates into a geopolitical protection arrangement encompassing security issues and even extending to insulating Israel from censure at the UN, especially by the Security Council, and making sanctions impossible to impose. In such a setting, the Israelis are able to pursue their goals, while ignoring Palestinian grievances, which results in tragedy and suffering for the Palestinian people. Given the balance of forces, there is no end in sight that might end the conflict in a fair way.

 

Q: President Donald Trump’s recognition of Jerusalem as the capital of Israel and his plan to move the U.S. embassy to this city met a big resistance at the United Nations, both on the General Assembly and Security Council levels. Why do you think the international community and even the major U.S. allies didn’t say yes to this proposal?

 

A: Trump’s initiative on Jerusalem ruptured whatever fragile basis existed for seeking a diplomatic solution for relations between Israel and Palestine. There had been a clear understanding, respected by prior American leaders, that the disposition of Jerusalem was a matter that was to be settled only through negotiations between the parties. This understanding was broken by the Trump initiative for no apparent reasons beyond pleasing Netanyahu and some wealthy Zionist donors in the U.S. Beyond this, for Trump to side with Israel on such a sensitive issue, which deeply matters symbolically and substantively, not only for Palestinians, but for Muslims everywhere, and even for Christians, damaged beyond repair the credibility of the United States to act an acceptable intermediary in any future peace process.

 

American credibility was at a low level anyway, but this latest step relating to Jerusalem, removed, at least for the foreseeable future, any doubt about the American partisan approach, and more dramatically, made it evident that diplomacy based on the two-state solution had reached a point of no return.

 

In one respect, the Trump move on Jerusalem lifted the scales from the eyes of the world. It should have been clear for some years that the size of the settlement phenomenon and the influence of the settlers, now numbering about 800,000, had made it impractical to contemplate the establishment of a genuinely independent and viable Palestinian state. As well, the U.S. had long ceased to be an honest broker in the diplomatic settings that were described by reference to ‘the peace process,’ and probably never was partisan from the outset of the international search for an outcome that was a genuine political compromise. If there is to be an effective diplomacy with respect to the relations between the two peoples, it must, in any event, be preceded by dismantling the apartheid structures that were developed by Israel over the decades to subjugate the Palestinian people as a whole and the United States must be replaced by a credible third party intermediary. Israel feels no pressure to accept such changes, and so there is no current alternative to exerting pressure on this untenable status quo through support for militant nonviolent forms of Palestinian resistance and the global solidarity movement, with a special recognition of the contributions of the BDS campaign. It may be relevant to note that the BDS Campaign has been nominated to receive the Nobel Peace Prize in 2018.

 

Q: In the recent years, many resolutions and statements have been issued in condemnation of the expansion of Israel’s settlements in the Palestinian territories occupied following the Six-Day War in 1967 by the UN General Assembly and its affiliated human rights bodies. Even the UNSC Resolution 2334 (2016) declares Israel’s settlement activity a “flagrant violation” of international law. Is the publication of statements and condemning a state, while the state itself doesn’t recognize the demands and considers them invalid, a viable solution? If the international community is convinced that Israel should stop the illegal settlements, then how is it possible to make it happen?

 

A: The continued expansion of the settlements despite their flagrant violation of Article 49(6) of the Fourth Geneva Convention is both an expression of Israel’s contempt for international law and for world public opinion. It also reveals the impotence of the UN to do anything effective to impose its will that is any more consequential than the issuance of complaints. When geopolitical realities shield the behavior of a state from international pressures, the UN is helpless to implement its resolutions, and international law is put to one side. The UN is an organization of states, and limited in its capacity to shape behavior, especially by the veto power of the five permanent members of the Security Council. As such, the UN was never expected to have the constitutional capacity to overcome the strongly held views and commitments of the five states given permanent membership and the right of veto in the Security Council in the UN Charter. The Security Council is the only organ of the UN System with clear authority to reach and implement decisions, as distinct from advisory opinions and recommendations. The Israel/Palestine conflict is an extreme version of the Faustian Bargain struck between the geopolitical power structure and global justice, which was written into the UN Charter and the constitutional framework of the UN, as well as exhibited in UN practice over the years.

 

Q: News reports and figures show that the living standards and the economic conditions in the Gaza Strip are getting worse as time goes by. The unemployment rate has climbed to 46%. Research organizations and local media say 65% of the population is grappling with poverty and the food insecurity rate is roughly 50%. How do you think the perturbing humanitarian crisis in Gaza can be alleviated?

 

A: It is difficult to comprehend accurately the Israeli approach to Gaza as its motivations are very different from its stated justifications. Israeli policy often appears cruel and vindictive, with security rationales sounding more like pretexts than explanations. Excessive force has been repeatedly used by Israel in Gaza, and little effort to achieve some kind of tolerable stability has been made.

 

Israel has rejected a series of proposals for long-term ceasefires put forward by Hamas during the past decade. Israel has periodically attacked Gaza, inflicting heavy damage on a helpless and impoverished civilian society in 2008-09, 2012, and 2014 while the international community condemned these excessive uses of force. Now that the economic squeeze is pushing Gaza once again toward the brink of a humanitarian disaster the ordeal of the nearly two million Palestinians entrapped and utterly vulnerable. The situation in Gaza is once again a matter of grave concern, with humanitarian alarms being sounded by those with knowledge of the precarious health and subsistence crisis facing the population.

 

It is unclear what Israel actually wants to have happen in Gaza. Unlike the West Bank and Jerusalem, Gaza is not part of the Zionist territorial game plan, and is not considered part of biblical Israel. To the extent that Israel is pursuing a one-state solution imposed on the Palestinians, Gaza would be likely excluded as adding its population to that of Israel would risk exploding ‘the demographic bomb’ that has for so long worried Israelis because of endangering the artificially generated Jewish majority population, and supposed ‘democratic’ control of this ethnocratic polity.

 

The Zionist project has long resorted to extreme measures to achieve and then sustain the democratic pretension of its governing process, initially dispossessing as many as 700,000 Palestinians from the territory that became Israel in 1948. This coerced dispossession during combat was combined with a post-conflict refusal to allow those who left their homes and villages during wartime any right of return. Such ethnic cleansing was reinforce by completely destroying hundreds of Palestinian villages with bulldozers. This pattern of controlling the population ratio between Jews and non-Jews has been a persistent issue ever since the Balfour Declaration was issued in 1917 when the Jewish population of Palestine was about 5%. In the early period, the Zionist effort was focused on overcoming the Jewish demographic minority status by stimulating and subsidizing Jewish immigration. Yet even after the surge in immigration prompted by the rise of Nazism and European anti-Semitism, the Jewish population of Palestine was only about 30% at the start of the 1947-48 War.

 

Israel would probably like to have Gaza disappear. If that is not going to happen, then the second best solution is to entrust Jordan or Egypt with administrative control, security responsibility, and sovereign authority. So far neither Arab government wants to assume control over Gaza. With these considerations in mind, Israel seems determined to maintain instense pressure on Gaza, allowing the population to hover around the subsistence threshold, and to signal Israeli aggressiveness to the rest of the region, asserting a military presence from time to time that seems both punitive and designed to remind Gazans that resistance on their part would be met with overwhelming lethal force causing devastation and heavy casualties, including imposing a condition of enduring despair on the civilian population.

 

 

 

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The Jerusalem Votes at the UN

23 Dec

 

 

What struck me as the most significant dimension of the Jerusalem votes in the Security Council and General Assembly has been oddly overlooked by most commentary in the media. The public discourse has, of course, been correct to identify the isolation of the United States with respect to the rest of the world as well as regarding the majority position as a defiant rejection of Trump’s leadership and bullying tactics. Although as some have noted, without the bullying by Ambassador Haley (including, I will report yes votes to the president; those that vote for the resolution will not receive economic assistance in the future; we are watching; “America will remember this day;” “the vote will make a difference on how Americans look at the UN.”), there might been as many as 150 positive votes for the resolution instead of 128, with fewer abstentions (35) and fewer absences from the vote (21).

 

Nevertheless, 128-9 is a clear expression of an overwhelming moral and legal sentiment, and deserves to be respected by any government that values the role of the General Assembly as the arbiter of legitimacy with respect to sensitive global issues. Although far weaker and more subject to geopolitical manipulation than is desirable, these main political organs of the UN provide the best guide that currently exists as to what global policy should be if the global and human interest is to be protected, and not merely an array of national interests and their multilateral aggregation to achieve cooperative results.

 

What this discussion glosses over in this instance without stopping to observe its significance is the degree to which issues of substance prevailed over matters of geopolitical alignment. Not one of America’s closest allies (UK, France, Germany, and Japan) heeded the fervent arguments and pleas of Haley and Trump. Beyond this, every important country in the world backed the General Assembly Resolution on December 21, 2017 regardless of geography or political orientation (China, Russia, India, Brazil, Turkey, India, Pakistan, Saudi Arabia, Iran). This unanimity enhances the quality of the consensus supportive of the resolution repudiating Trump’s arrogant decision to recognize Jerusalem as Israel’s capital as ‘null and void.’ Such an impression is strengthened by listing the nine governments that voted against the resolution (Guatemala, Honduras, Marshall Islands, Israel, Miscronesia, Nauru, Palau, Togo, and the U.S.).

 

Should these striking results be interpreted as the demise, or at least twilight, of geopolitics? Any such speculation would be wildly premature. What seems to have swayed many governments in this case is the negative fallout expected to follow from Trump’s unilateralism that disregards decades of international practice and agreement about the status and treatment of Jerusalem, as well as the gratuitous neglect of Palestinian rights and aspirations by taking such an initiative without even pretending to take account of Palestinian grievances. In this regard, Trump’s poor international reputation as a result of pulling out of the Paris Climate Change Agreement, decertification of the Nuclear Agreement with Iran, and withdrawal from negotiations to fashion an agreed approach to the global migration crisis undoubtedly help tip the scales on the Jerusalem resolution, especially among European governments. Trump’s unpopular implementation of his diplomacy of ‘America, First’ is arguably morphing into the disturbing perception of ‘America, Last’ or the United States as ‘rogue superpower.’ Consciously or not, the UN vote was a distress signal directed at Washington by friends and adversaries alike, but as near as can be told, it will be disregarded or angrily rebuffed by the White House and its spokespersons unless they decide to pass over these happenings in silence.

 

As has been observed, the Jerusalem decision was not part of a carefully crafted international approach to the Israel/Palestine struggle. It seemed mainly to be a payoff to domestic support groups of Trump’s presidential campaign in the United States (large pro-Israeli donors and Christian Evangelists wedded to a (mis)reading of the Book of Revelations), as well as a further display of post-Obama affection for Bibi Netanyahu. Apparently, for Trump being adored in Tel Aviv seems worth being discredited with allies and leading states throughout the rest of the world. As for the threatened major aid recipients (Afghanistan, Egypt, Pakistan, Nigeria, Ethiopia, Tanzania, and South Africa; Kenya was absent during the vote); it was impressive that all of these states ignored the threat and voted for the resolution. If Washington follows through on withholding aid it will certainly not serve America’s strategic interests as previously understood, particularly in the Middle East, but also in Africa. Yet if it fails to carry its threat, its diplomatic posture will be seen as that of a novice poker player whose untimely bluff has been called.

 

There is also the question of ‘what next?’ Will the Jerusalem resolution be remembered as a moment in time to be superseded by contrary behavioral trends? In this regard, the U.S. now has its own chance to exhibit defiance and disrespect by quickly and ostentatiously moving its embassy to Jerusalem, which will of course give rise to further anger. The Turkish president, Recep Tayyip Erdoğan has already seized the occasion to reassert its prominence in the Muslim world, first by co-sponsoring (with Yemen) the resolution, and then by explicitly calling on the U.S. Government to rescind its decision to recognize Jerusalem as the capital of Israel. I would darkly imagine that the Trump presidency would opt for World War III before it backed down on Jerusalem.

 

As widely reported, the Jerusalem resolution is symbolic in nature, and yet it does have serious political consequences for all relevant political actors. Does it clear a political space for the European Union to play a central role in seeking to revive a diplomatic approach on a more balanced basis than what could have been expected from Washington? How does the U.S. Government negotiate the fine line between disregarding the resolution and harming its foreign policy objectives in the Middle East? How unyielding should the Palestinian Authority be about insisting on a parallel recognition of East Jerusalem as the capital of Palestine before it agrees to participate in negotiations with Israel? Will Turkey seek further steps at the UN and elsewhere to back up the resolution, including possibly fashioning realignments throughout the Middle East? Will the second tier of officials in the Trump Administration create pressure to create a foreign policy that more closely reflects U.S. national interests by taking better account of the many dimensions (digital, economic, security) of global integration?

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