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).
Global Justice in the 21st Century 
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:
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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Annex: The 13 Demands
[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.
Tags: Diplomacy and diplomatic protocol, Gulf Crisis, Gulf Crisis 2014, international law, Middle East, Qatar, Trumpian geopolitics