Tag Archives: Nuremberg

Connecting the Dots 77 Years Later: Hiroshima and Nuremberg

14 Aug

[Prefatory Note: ‘Can ‘Victors’ Justice be Just?’ was the rhetorical question I asked myself as I first read the Nuremberg Judgment as a law student in the 1950s, and even more so as a young law teacher I stumbled across the later Tokyo Judgment a few years later, which contained the famous (in Japan) long dissent of the Indian judge, Radhabinod Pal. The back story intrigued me explaining why those who constructed the Japanese war crimes tribunal at least made the panel of judges appear less like a victors’ show trial than what took place in Germany, and yet outside of Japan evoked less interest because of Justice Pal’s heresy, fidelity to the integrity of the rule of law in the aftermath of a major war.]  

At first glance, it may seem perverse to link Hiroshima and Nuremberg, not as flowing from opposite impulses dominant among the victors in World War II, but as emerging from the same amoral cast of political sensibility. Yet after the passage of 77 years, it seems more relevant to insist that dropping atomic bombs on cities filled with ordinary people coupled with the moral hubris involved in granting impunity to such acts on the very days that these weapons of indiscriminate mass destruction were exploded offers insight into the way in which the weaponry has been almost ‘normalized’ for the winners and a few others ever since.

Would we be prudently trembling now if in 1945 the winners had displayed at least moral sensitivity to the irony of prosecuting the losers on the very days during which the winners perpetrated the worst and most consequential international crime of the entire war?

“If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.” so said Robert H. Jackson, Chief U.S. Prosecutor at Nuremberg. Such noble words have had no echo in the corridors of power, wearily recited for decades by those of us committed to the emergence of a world in which these weapons have been forever abolished. As it is, we have every reason to believe that those with the authority would repeat the double move of exempting themselves from accountability while self-righteously punishing those experiencing the unleashed fury of nuclearism. The marked differences between 1945 and 202? being the planetary magnitude of the harm done by the use of such weapons and the probable post-war inability to identify ‘a winner.’ The question left open is whether the losers in such a struggle would go on fighting to win the most pyric victory ever or might at last, even if too late, seek the survival of the human species treated as a collective unity. I describe below my own belated reckoning with this disturbing, unacknowledged linkage.

It was only recently that I realized that the 1945 signing of the London Agreement by the U.S., Soviet Union, France, and the UK arranging the  establishment of a tribunal in Nuremberg charged with prosecuting  major Nazi war criminals occurred on August 8, 1945, that is, wedged in between the days when the atomic bombs were dropped. A parallel tribunal in Tokyo was set up to try Japanese war crimes some months later. It has been often observed by independent commentators, especially in recent years, that these initiatives were so one-sided as to stretch the meaning of criminal law beyond recognition. The most telling sign of a legitimate legal process is the equal treatment of equals. Yet inequality pervaded the structure, procedures, and outcomes of these self-righteous tribunals, from the selection of the judges to impunity for those guilty of war crimes on the winning side. Despite such fundamental inequalities there are few who would doubt that the evidence presented at Nuremberg and Tokyo clearly documented despicable forms of criminality were carefully shown to be work of the indicted Germans and Japanese defendants. What became somewhat controversial about the trials at the time was the failure to inquire into the violations of international criminal law by the winning side, which is why these tribunals, however conscientious their work, have been derided over the years as glaring instances of ‘victors’ justice.’

My interest in the connections between Hiroshima and Nuremberg is somewhat different than mounting another critique. I find the insensitivity of such a high profile signing of this agreement on August 8th establishing the Nuremberg Tribunal is appalling. It occurred during the very days of the atomic bombings, arguably the worst crime of World War II at least on a par with the Holocaust. It is more than insensitivity, it is moral numbness of such depth as to prepare political actors, whether states, empire, leaders, or simply ‘realists’ to embrace past crimes and commit future crimes. It best explains such features of evolving world order as a geopolitical right of exception at the UN by way of the veto and impunity with respect to accountability procedures. In effect, the UN is designed quite literally to give assurances that the most dangerous states, as of 1945, are jurisprudentially protected forever from any adverse Security Council decision as to criminal acts, at least within the UN System.

What is this slightly disguised feature of legality and legitimacy conveying to a curious observer? That law and accountability are relevant for propaganda and punishment against Great Power adversaries, that the wrongs of victors in major wars are beyond scrutiny while the same level of wrongdoing by the losers will be punished harshly. In effect, the vanquished and weak are to be judged in what amounts to ‘show trials’ because of the core failure to treat equals equally, purging geopolitics from the annals of international criminal justice.

There is yet something else to reflect upon. If August 8th had been a different day of infamy because an English or American city had been targeted by a German atomic bomb and yet Germany still lost the war, the act and the weapon would have been criminalized at Nuremberg and by subsequent international actions. We might not be still living under the storm clouds cast by this weaponry if the perpetrators of those dreadful events of August 6th and 9th had been the losers in World War II, which makes the rightly celebrated defeat of fascism on balance a somewhat questionable long-term victory for humanity.

77 years later it seems worth pondering the costs of continuing to allow this long repressed relationship between Hiroshima and Nuremberg to color our understanding of good and evil in global settings. The recent irresponsible heightening of geopolitical tensions with Russia and China should alert us to the relevance of this still unacknowledged legacy of how the end of World War II was manipulated to assure that the most powerful states would go on preparing for ever more destructive wars

until the end of time, or more likely, the end of the human species.

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Colin Powell: In Life and Death

22 Oct

[Prefatory Note: The post below is a slightly modified text of an interview published under a different title in CounterPunch on October 22, 2021. The interview was conducted by an increasingly influential independent journalist, Daniel Falcone.]

OCTOBER 22, 2021

Photograph Source: Chairman of the Joint Chiefs of Staff – CC BY 2.0

Colin Powell died on Monday at the age of 84. Born in New York City in 1937, he attended City College where he studied geology. Over the course of his high-ranking military and government career he formulated the Powell Doctrine and later became known for justifying the illegal Iraq War in 2003. In this interview, international relations scholar Richard Falk reflects on Powell’s life and the US reaction to his passing: including the relevance of identity politics, the question of moderation, his contribution to the horrors of Vietnam and Iraq, and US governmental hypocrisy in the wake of its January 2020 assassination of the comparable Iranian general, Qasem Soleimani.  

Daniel Falcone: As the US media mourns the death of Colin Powell and regrets the passing of a “memorable and principled statesman,” can you comment on how the actual history competes with this memory and knowledge construction of this notable figure?

Richard Falk: The legacy of Colin Powell is a complex one that will take time to sort out. There is no doubt that he projected the public image of an African American who was moderate and genuine in his commitment to national military and diplomatic service, and a patriot in the traditional sense of supporting his country, ‘right or wrong.’ He had a notable career in both the armed forces and diplomacy, becoming the first African American to be Chairman of the Joint Chiefs of Staff and Secretary of State. These achievements set Powell on a high pedestal, a role model for persons of color, long excluded from the pinnacles of power and influence.

At the same time, for an African American in the last half of the 20th Century to identify with the Republican Party seemed to many problematic, even taking account of Powell’s chosen professional identity as a rising military officer. Born and growing up in liberal New York City makes this embrace of American conservatism even stranger and made one wonder whether he was a career opportunist, or someone alienated from his racial identity.

Such negative suspicions were generally overcome of his post-political life when Powell exhibited a different posture. He abandoned his Republicanism, and endorsed successive Democratic presidential candidates: Barack Obama, Hillary Clinton, and Joe Biden. Powell called Trump ‘a national disgrace’ and openly supported his
impeachment. This turn toward the Democrats strengthens the view that Powell’s essential identity was linked to a sense of what he believed it meant to be an American of moderate persuasion and maybe some feeling late in his life that led him to emphasize racial solidarity with Obama, who had strong credentials as an anti-racist moderate. Then with the advent of Trump and Trumpism Powell seemed unhesitant about denouncing Republican extremism, I suspect as viewing it a deviation from his idea of what the Republican Party stood for, as well as his conception of ‘the American way.’ Powell also added to his positive image by engaging actively in charitable work for disadvantaged persons after his retirement.

At the same time, throughout his professional career stayed in his lane so far as anti-racism, national politics, and a globally aggressive U.S. foreign policy was concerned. It is not surprising that with such a profile, extravagant bipartisan praise was immediately forthcoming from stalwarts of both political parties with the announcement of his death. It was important for the American establishment to show the country and the world, especially at this time, that whatever the accusations of Black Lives Matter or the fallout from the police murder of George Floyd, that the American political class was not racist and would celebrate an individual of color for what he accomplished.

Yet, from the perspective of his role as a major international figure in the implementation of American foreign policy, particularly in the Middle East, where he lent prominent justification for, and leadership of the policies enacted in Iraq after 1990. Powell’s low point came when he provided the highest profile justification of the invasion and occupation of Iraq by way of testimony before the UN Security Council on February 5, 2003. Powell later admitted that his presentation had been misleading and mistaken as to its allegations that Iraq possessed prohibited biological weapons and was intent on developing nuclear weapons. Powell made the official case for the Bush presidency for the Iraq War on a large global stage. The Iraq War commenced six weeks later and proved a humanitarian disaster for the Iraqi people and an expensive and revealing political failure for the United States, which had the unwanted effect of shifting regional influence towards Iran when its main geopolitical goal was to minimize and at worst, contain it.

Powell had been admired in the post-Vietnam period for his insistence that the U.S. should not engage in international uses of force unless its national interests were significantly involved, and it was prepared to devote sufficient military forces to ensure success without enduring major American casualties. What was dubbed ‘the Powell Doctrine’ earned Powell the moniker of ‘reluctant warrior,’ but in retrospect he was not nearly reluctant enough. Although he was reportedly skeptical about the case for invading Iraq in 2003, he went along with the Bush/Cheney resolve to remove Saddam Hussein from power and afterwards to engage in state-building and democracy promotion in the course of a prolonged occupation.

Although Powell accepted responsibility for arguing a false case as to weapons of destruction before the UN Security Council during which he described Saddam Hussein as posing ‘an imminent danger to the world,’ he refrained from opposing the war. In fact, Powell would later comment, “I think we had a lot of successes in Iraq. Iraq’s terrible dictator is gone.” But so are hundreds of thousands of innocent civilians gone, and the country plunged into ongoing chaos. This reality is rarely acknowledged, and when Madelaine Albright notoriously did so in a ‘60 Minutes’ interview, she tried hard to walk it back with all sorts of evasive explanations that showed no disposition to accept responsibility for the criminal character of the sanctions imposed during the 1990s or the devastation and chaos after 2003.

A second stain on Powell’s record came earlier, when as a major in the U.S. Army serving in Vietnam, he was assigned to investigate the My Lai massacre of March 16, 1968. This was a terrible war crime when at least 300 Vietnamese civilians who lived in a small rural village were shot dead in cold blood by U.S. military personnel acting on orders. In his report, Powell seemed to be exonerating the culprits of this atrocity, incredibly concluding that “relations between American soldiers and the Vietnamese people are excellent.” The report did admit that unfortunate incidents of this kind occur in wars, but there was no attribution of guilt for what was viewed around the world as a grotesque atrocity.

With Powell, it will be up to respected historians to draw a line between Powell as adhering to the ethics of a professional soldier and diplomat and Powell as faithful executor of the criminal aspects of American foreign policy in the period that he served as Chairman of the Chairman of the Joint Chiefs of Staff, 1989-1993, and as Secretary of State, 2001-2005. In this regard, it should not be forgotten that the Nuremberg Judgment concluded that carrying out ‘superior orders’ or acting in the line of duty was no defense in the war crimes prosecutions of surviving high ranking military and civilian Nazi officials.  

Provisionally, what stands out in the aftermath of his death is that Colin Powell was a breakthrough national political figure who undoubtedly helped create new opportunities for black leadership and prominence, and subsequently refused to go along with the Republican Party’s embrace of reactionary extremism after 2016. A more balanced and nuanced evaluation of his role and degree of responsibility will have to wait. Powell was comfortable as a lead member of the American political class during the heyday of neoconservatism, which encouraged a diplomacy of intervention and overseas militarism in the years after the Soviet collapse. At the same time, Powell was never himself perceived as a neocon, and during his time as Secretary of Defense was seen as an opponent of the rashest neocon policies.

Daniel Falcone: Do you think that the US, from the Democrats’ perspective, see this as a special loss regarding their consistent efforts to rebrand their party and their credibility within the concept of “law and order?”

Richard Falk: I think by the time of his death Colin Powell had lost most of his relevance to the politics of the country. He might have seemed to some the perfect embodiment of the Biden determination to restore an atmosphere of bipartisan consensus that prevailed during the Cold War and the early years of reaction to the 9/11 attacks. To some extent the Biden approach has succeeded in mobilizing the country for confrontational geopolitics directed at China. Internally however it does not seem as though bipartisanship could be restored, despite reflecting Powell’s preferences for moderation along the entire political spectrum.

Quite the contrary, with Trunp’s cheerleading from the sidelines, toxic polarization remains prevalent within national context.

Daniel Falcone: Can you talk about the career of Powell and the Iranian general, Qasem Soleimani (a person killed by the US) and draw any comparisons to the reactions and contextual framing of each?

Richard Falk: It is in many ways an apt, intriguing, and revealing comparison. Both military figures were admired professionally within their countries and enjoyed respect and the affection within their respective societies. As reflects the national style and the global power hierarchy, Soleimani was assassinated through a CIA-led operation while Powell died a natural death. Powell was undoubtedly perceived by U.S. governmental adversaries as complicit in the implementation of American foreign policy, including its aspects that seemed to violate international law, including the UN Charter, but geopolitical primacy ensures de facto impunity for its principal political and military figures.

In this sense, Powell was an efficient military commander who was closely associated with post-colonial American foreign policy, which had a particularly destructive impact on the Middle East. Soleimani, similarly, was portrayed as responsible for leading Iran’s armed resistance to the American occupation of Iraq and the extension of its influence elsewhere in the region (in addition to Iraq, Syria, Yemen, Gaza, and Lebanon). Soleimani was described by U.S. Government as engaged in ‘terrorism’ while Powell was viewed in many foreign circles as an agent of unlawful American interventions and encroachments on national sovereignty. It remains for us to think about the implications of geopolitical realities resulting in the assassination of sub-altern leading figures while impunity unto natural death is enjoyed by their hegemonic opponents. The people of Iran and of the United States looked upon these two quite different military figures as fallen heroes.

Will history and historians judged them differently?

Daniel Falcone: What does it say about the organized left, that progressives and Democratic Socialists within the US government are waxing nostalgic about Powell? Has the spectrum shifted so far right in your view?

Richard Falk: Powell is a somewhat ambiguous political figure from a progressive perspective (and to some extent, for opposite reasons, from a current Republican perspective). He seems to have ascended the heights of American life as a person of color, deriving from a humble background. In My American Journey Powell describes his ascent in these words, “Mine is the story of a black kid of no early promise from an immigrant family of limited means who was raised in the South Bronx.”

That such a personal narrative should evoke widespread meta-political approval should no surprise, indeed it is the fulfillment of the American dream, extended to a representative of a racial category that had been generally excluded from dreams that included ascending to the upper reaches of leadership in the armed forces and foreign policy. Celebration of these achievements were solidified by Powell’s non-abrasive personality and style, as well as by his record of professional competence.

I think that Powell would have received great praise in any era, but perhaps his non-confrontational manner and overall moderation are especially appreciated by a broad spectrum of public opinion when Trumpism has taken over control of the Republican Party. To affirm Powell is partly to exhibit nostalgia for the pre-Trump politics of comparative moderation, although the excesses of the Reagan and two Bush presidencies make this affirmation of the American past somewhat sentimental, and a matter of degree.

In sum, I believe, American liberals, and even many progressives, want to present themselves as part of the anti-Communist, pro-Israeli, and pro-law and order mainstream. Of course, thankfully there were some notable exceptions, although too few, including Noam Chomsky, Howard Zinn, Edward Said, Daniel Berrigan, Medea Benjamin, and Daniel Ellsberg. Like Colin Powell, these exceptions are mostly male, and unlike him, are all white. So it goes!

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Rogue States Sanction the International Criminal Court  

26 Jun

[Prefatory Note: This post is a slightly modified version of an editorial contribution to TMS (Transcend Media Service), June 22-28, 2020).]

 

Sanctioning the International Criminal Court

 

Even Orwell would be at a loss to make sense of some of the recent anticsof leading governments. We would expect Orwell to be out-satirized by the American actions to impose penalties and sanctions on officials of the International Criminal Court, not because they are accused of acting improperly or seem guilty of some kind of corruption or malfeasance, but because they were doing their appointed jobs carefully, yet fearlessly and in accord with their proper role. Their supposed wrongdoing was to accept the request for an investigation into allegations of war crimes committed in Afghanistan by military personnel and intelligence experts of the U.S. armed forces, the Taliban, and the Afghan military. It seemed beyond reasonable doubt that frequent war crimes and crimes against humanity have occurred in Afghanistan ever since the U.S.-led regime-changing attack in 2002, followed by many years of occupation and continuous combat amid a hostile population.

 

It should be noted that Israel is equally infuriated that the ICC has affirmed the authority of its Prosecutor, Fatou Bensouda, to investigate allegations by Palestine of war crimes and crimes against humanity committed in the Occupied Palestinian Territories (OPT) of the West Bank, East Jerusalem, and Gaza. These allegations include the unlawful transfer of Israeli civilians to establish settlements in the OPT as well as administrative structures and practices that constitute violations of the criminal prohibition on apartheid. Netanyahu, like his Washington sibling, has called for the ICC to be subject to sanctions for staging this ‘full frontal attack’ on Israeli democracy and  on ‘the Jewish people’s right to live in Israel,’ a ridiculous contention on its face. The Israeli Prime Minister seems to be contending that Israel as a sovereign state has the right to defend itself as it wishes, and should not be impeded by any obligation to respect international criminal law, or for that matter, any external source of authority, including the United Nations. Such a defiant claim, and the abusive practices and policies that have followed over many years, amounts to a crass affirmation of what I have elsewhere called ‘gangster geopolitics.’

 

Of course, Israel or the United States would be given broad latitude to make arguments in support of their innocence or their jurisdictional claims that the ICC lacked authority to prosecute, but these U.S. and Israel objections are not complaining about encroachments by the ICC on their right to mount legal defenses, but rather on the far more radical idea involving a total denial of international legal accountability. These two  rogue states refuse to accept even the authority of the ICC to determine whether or not it has jurisdiction to consider the criminal charges. This kind of repudiation of an international institution that has been acting responsibly, well within their legal framework set forth in the Rome Statute, an international treaty, represents an unprecedented and extreme expression of anti-internationalism.

 

The angry American pushback did not bother contesting the substantive allegations, but denied only the jurisdictional authority of the ICC, and attacked the audacity of this international entity for supposing that it could investigate, much less prosecute and punish the representatives of such a mighty state that, by implication, should never, no matter what, be held internationally accountable. When the ICC was investigating, and indicting, only African leaders few Western eyebrows were raised, but recently when the Court dared ever so gingerly to treat equals equally in accord with its own legal framework—the Rome Statute of 2000—it had in Washington’s and Tel Aviv’s eyes so overstepped its unspoken limits as to itself become a wrongdoer, and by this outlandish logic, making the institution and its officials legitimate targets for sanctions. What this kind of unprecedented punitive pushback against ICC officials amounts to is a notable rejection of the global rule of law when it comes to international crime and a crude geopolitical reminder to international institutions that ‘impunity’ and ‘double standards’ remain an operational principal norm of world order.

 

Speaking for the U.S. Government the response of the American Secretary of State, Mike Pompeo, stunningly exhibited the hubris that became the American global brand well before Donald Trump disgraced the country and harmed the peoples of the world during his tenure as president. Pompeo’s reaction to the unanimous approval of the Prosecutor’s request to investigate war crimes in Afghanistan was little other than seizing the occasion to insult the ICC by describing it as “little more than a political tool employed by unaccountable international elites.” Such a statement crosses the borders of absurdity given the abundant documentation of numerous U.S. crimes in Afghanistan (the subject-matter of Chelsea Manning’s WikiLeaks 2010 disclosures that landed her in jail) and in view of the several ‘black sites’ in European countries where foreign suspects are routinely tortured, and subject to rape. Contra Pompeo, it is not the ‘international elites’ that are unaccountable but the national elites running the U.S. and Israeli governments.

 

The Pompeo dismissal of the ICC initiative was a prelude to the issuance by Trump on June 11th of an Executive Order that extended the prior denial of a U.S. visa to Bensouda, and threatened a variety of sanctioning moves directed at anyone connected with the ICC and its undertakings, including freezing assets and withholding visas, not only of ICC employees, but also of their families, on the laughable pretext that the prospective ICC investigation was creating for the United States a ‘national emergency’ in the form of an “unusual and extraordinary threat to the national security and foreign policy of the United States.” Long before the present crisis, Trump had told the UN in a 2018 speech at the General Assembly that “..the ICC has no jurisdiction, no legitimacy, and no authority..We will never surrender America’s sovereignty to an unelected, unaccountable, global bureaucracy.”

 

As crude as are the words and deeds of the Trump crowd, there were almost equally defiant precursors, especially during the presidency of George W. Bush, an anti-ICC campaign led by none other than John Bolton who was to become Trump’s notorious National Security Advisor, and has suddenly become his antagonist-in-chief as a result of his book depicting Trump’s array of impeachable offenses. Remember that it was Bush who ‘un-signed’ the Rome Statute that Bill Clinton had signed on behalf of the U.S. on the last day of his presidency, but even he did so with the proviso that the treaty should not be submitted to the Senate for ratification and hence not be applicable, until the ICC had proved itself a responsible actor in Washington’s judgmental and biased eyes. Congress and the State Department stepped in to make sure that American military personnel would not be charged with international crimes both by threatening preventive action and entering into over 100 agreements with other countries to ensure immunity of American soldiers and officials from ICC jurisdiction, coupled with a threat to withhold aid if a government refused to agree to such a law-defying arrangement. Hillary Clinton also put her oar in the bloody water some years ago, insisting that since the U.S. was more of a global presence than other countries, it was important to be sure that its military personnel would never be brought before the ICC, no matter what their alleged offenses. The global military reach of the U.S. by way of hundreds of overseas bases, special forces covert operations, and naval patrols around the globe should enjoy immunity on a individual level, as impunity on a collective level of state responsibility. The impulse is understandable given the degree to which U.S. global security activities are so often conducted in ways that violate the most basic prohibitions of international criminal law.

 

In other words, non-accountability and double standards have deeper political roots in the bipartisan soil of American security politics than the extreme anti-internationalism of Trump. These tactics of self-exemption from legal accountability can be usefully traced back at least as far as the ‘victors’ justice’ approach to war crimes during the second world war where only the crimes of the defeated countries were subjected to accountability at Nuremberg and Tokyo, a step hailed in the West as a great advance despite its flaws. It was deeply flawed considering that arguably the most horrifying and least forgivable act during the four years of hostilities were the atomic bombs dropped on Japanese cities. Is there any serious doubt that if Germany or Japan had struck cities of the Allies with the bomb, and yet lost the war, those responsible for the decisions would have been held accountable, and harshly punished?

 

In some ways as bad from a law angle was the U.S. orchestrated trial of Saddam Hussein and his closest advisors for their state crimes, although the 2003 Iraq War arose from acts of aggression by the United States and UK, and subsequent crimes during the prolonged occupation of Iraq. In other words, the idea of unconditional impunity for the crimes of the United States is complemented by self-righteous accountability for those leaders of countries defeated in war by the United States. Such ‘exceptionalism’ affront the conscience of anyone who shares the view that ideas of fairness and equality should be affirmed as core values in the application of international criminal law.   

 

As might be expected, mainstream NGOs and liberal Democrats are not happy with such an insulting and gratuitous slap in the face of international institutions that have previously proved mainly useful in going after the wrongdoing of non-Western leaders, especially in Africa. It should be remembered that African countries and their leaders were the almost exclusive targets of ICC initiatives during its first ten years, and it was from Africa that one formerly heard complaints and threats of withdrawal from the treaty, but I doubt that ideas of sanctioning the ICC ever entered the imaginary of the understandable African displeasure at an implicit ethos of ‘white crimes don’t matter’!

 

David Sheffer, the American diplomat who headed the U.S. delegation that negotiated the Rome Statute on behalf of the Clinton presidency, but who was careful to preserve American geopolitical interests in the process, expressed the liberal opposition to Trump’s arrogant style of pushback with these words: “The [Trump] Executive Order will go down in history as a shameful act of fear and retreat from the rule of law.” There is an element of hypocrisy present in such a denunciation due to withholding the pre-Trump record of one-sided imposition of international criminal law.  True enough, it was the prior Republican president that had locked horns with the ICC some years ago, but the ambivalence of Congress and the Clintons is part of a consistent American insistence of what I would label as ‘negative exceptionalism,’ that is, the right to act internationally without accountability while taking a hard line on holding others accountable; impunity for the powerful, accountability for the weak. It used to be that American exceptionalism was associated with a commitment to decency, human rights, the rule of law, and a visionary approach to world order that was missing elsewhere, and could serve as a catalyst for peace and justice in the world. Such self-glorification, which was never deserved or appropriate, has long since been forfeited at the altar of global geopolitics, whose players make up the rules as they go along, while showing contempt for the legal constraints that are deemed suitable for the regulation of their adversaries.

 

Finally, it should be appreciated that while geopolitical actors can get away with murder, their rogue behavior is a precedent for all states, and weakens and undermines what fragile procedures exist to uphold the most basic norms of international law.

 

 

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Visiting Nuremberg, Reflecting on the Ambiguous Legacies of Nuremberg

2 Oct

 

I spent two days at Nuremberg to attend the Nuremberg International Human Rights Award ceremony on September 22, 2017. The reason we were in Nuremberg was that my wife had been a member of an international jury that selects an awardee every second year. The recipient in 2017 was the ‘Caesar Group,’ the undercover work of an official Syrian police photographer, who had managed to smuggle out of Syria a hard drive with 28,000 photographs of 6,000 prisoners of Bashar al-Assad’s detention centers in Damascus. These extraordinary images of tortured and dead bodies were truly horrifying in ways that statistics or even first-hand stories told by victims and their families, rarely are. The name Caeser is a pseudonym for this brave Syrian photographer who is living incognito in Britain, understandably fearing for his life. The Nuremberg award honors not only Caesar, but those who helped in the complex work of archiving the photographs and doing whatever possible to disseminate them to the world. The Caeser Group also performed the grim task of giving several family members a morbid closure about the whereabouts of their loved ones who had disappeared without a trace into the dreaded Syrian prison archipelago, and were now identified as among the victims of the brutal Damascus regime.

 

At the very moving ceremony held in the grand Nuremberg Opera House some excellent orchestral music of a contemporary Syrian-American composer, Kareem Routom, and a powerful address by a French journalist, Garance Le Caisne, who accepted the award on Caeser’s behalf, expressing strong sentiments of admiration for his courage, the importance of such documentation, as well as reminding the audience that other political actors in the complex Syrian descent into Hell these past six years were also responsible for atrocities against the civilian population of Syria, although there seems to be agreement among specialists that the Assad regime is responsible for upwards of 90% of civilian casualties.

 

There were also well-crafted speeches by Kenneth Roth, head of Human Rights Watch, which had convincingly documented the authenticity of Caesar’s photographs, and Stephen Rapp, a former American ambassador, who had been a chief prosecutor at the international criminal trials held in the aftermath of the Rwanda genocide and at the Special Court constituted to address crimes committed in the Ivory Coast.

 

The speeches of Roth and Rapp focused on the desirability of bringing Bashar al-Assad to trial as a war criminal, and the formidable obstacles to doing so. This naturally led me to think about the legacy of the Nuremberg Trials held nearby in this city in 1945. The Nuremberg Judgment found all but three of the 22 Nazi leaders being prosecuted as guilty of war crimes, with twelve sentence to death, three to life imprisonment, four to long-term imprisonment, while three were actually acquitted. Ever since the Nuremberg trials and verdict have been memorialized as not only punishing those guilty of the most evil imaginable behavior but also for establishing the legal principle that those who act on behalf of a sovereign state, even at its highest levels of political leadership and military command, remain subject to accountability for severe violations of international criminal law. The overall significance of this experience was given an authoritative formulation in the Nuremberg Principles adopted by the UN General Assembly on the recommendation of the International Law Commission in 1947 [GA Res. 177(II)]. The trial was also praised at the time for providing the defendants with due process of law, which was reflected in the sentences that distinguished degrees of individual guilt and variations in the quality of incriminating evidence in the minds of the judges.

 

There was also a certain moral and political ambiguity that created dark clouds in the skies above the Nuremberg Proceedings in 1945 that most commentators at the time refrained from noticing lest the party be spoiled. The defendants were not allowed to excuse their actions or even make reference to war crimes of the victorious nations in the war, which engaged in a variety of tactics, especially strategic indiscriminate bombings intended to terrorize and demoralize the civilian populations of Germany. Such tactics cannot be reconciled with international law or international morality.

 

This impunity of the accusers became more difficult to obscure in the companion Tokyo War Crimes Trials held against surviving Japanese leaders, especially in view of the use of atomic bombs against Hiroshima and Nagasaki despite indications that Japan was at the time prepared negotiate terms of surrender similar to what was agreed upon following the atomic attacks. There is little doubt that if either the Germans or Japanese had used atomic bombs against Allied cities, and then later lost the war, such acts would have been criminalized in a confident and convincing manner. It not surprising that within Japan, in particular, critics described the war crimes trials as ‘victors’ justice.’ As well, there was a long dissent and finding of ‘not guilty’ by the Indian judge on the Tokyo War Crimes Tribunal stressing the inclusiveness of evidence charging the Japanese defendants with aggression (‘Crimes Against Peace’) in view of the pre-war policies of economic strangulation pursued by the United States. Unlike Nuremberg, the Tokyo tribunal included judges other than those drawn from the ranks of the four main victorious Allied powers in the European theater of combat. For many years it was almost impossible to find Judge Radhabinod Pal’s lengthy opinion in even the best American libraries. In Japan Pal is honored to this day, including a statue to his memory in the notorious Yasukuni Shrine honoring Japan’s war dead and serving recently as a rallying cry for the rebirth of a version of Japanese militarized nationalism.

 

There were several notable attempts to find a middle ground to address this moral and legal deficiency at the heart of what was achieved at Nuremberg. The chief American prosecutor at Nuremberg, Robert Jackson (previously a member of the U.S. Supreme Court) indicated in his historic closing statement that the validity of the Nuremberg results would be tested in the future by whether the countries that pass judgment against these Nazi defendants abide by the same framework of accountability relevant to their future behavior. The eminent German philosopher, Karl Jaspers, argued in a similar vein that the punishments inflicted on these German defendants will be regarded as justified if and only if those governments that imposed the punishments uphold similar standards with respect to the future behavior of their own political and military leaders.

 

We all should know that the loophole of victors’ justice has not been closed. Quite the contrary, the United States and Russia, the two main victors in World War II, have done their best to obstruct any development of international criminal law that might hamper their freedom of maneuver, and refused all efforts at accountability that might apply to their own leaders or those of their allies, while still self-righteously pressing the case for imposing criminal responsibility on adversaries.

 

Syria and the Nuremberg ceremony fit into this ambiguous legacy, suggesting the relevance of this concern. The Roth/Rapp speeches were exclusively directed at ‘the enemy,’ without even considering whether there should be criminal responsibility imposed on other actors, including the United States. It has always been the case that the Western liberal temperament, especially as orchestrated by Washington, pushes ahead with the implementation of international criminal law without ever compromising the geopolitical structure that imposes responsibility selectively while invoking the authority of law with great moral pretension. Such a dynamic confuses law with power, and somehow turns a blind eye to the uncomfortable realization that law is not fully law that treats equals unequally.

 

It can be argued that so long as the law is applied in accordance with due process against those that have committed severe crimes it is reasonable to claim that justice is being served. Surely, we should not shed tears for Bashar al-Assad should he ever be hauled into court to defend against his documented record of bloody atrocities committed over and over again against his own people. Not tears, but still concerns that such proceedings give the high moral and legal ground to the most dangerous and powerful political actors whose behavior remains outside the law. Besides the misleading jurisprudential character of geopolitically grounded impunity, there is the impression created that the West remains the guardian of civilized values although it has been more responsible during the last several centuries for far more massive human suffering than those being solemnly apprehended.

 

One final observation: this gap in the implementation of international criminal law has been challenged by civil society initiatives, starting with the Bertrand Russell Tribunal organized during the Vietnam War. This symbolic

contribution to the idea of international criminal responsibility has been carried forward over the years, above all, by the Permanent Peoples Tribunal established in 1976 under the inspirational leadership of the Italian jurist, Lelio Basso. A variety of independent initiatives along these lines have occurred over the years at times when neither governments nor the UN would respond to either war crimes or severe violations of human rights. As important as these events have been in keeping the flame of global justice burning, there is no capacity to make these judgments enforceable or otherwise challenge the discretionary prerogatives of geopolitical actors and repressive governmental regimes. The gap remains. The human costs remain.

 

In Nuremberg it is unavoidable to reflect upon the distinctive history of the city. This history weighs heavily not only on the minds of visitors but more tellingly on the city’s citizens in several notable respects. First, and above all, is the association of the city with the Nuremberg Rallies held each year on the vast parade grounds and surrounding park. Secondly, there are the notorious Nuremberg Laws that first formalized the anti-Semitic persecution directed at Jews. Thirdly, is the keen awareness, especially on the part of older residents, that 90% of the old city of Nuremberg was destroyed by the Allied bombing campaign. Thirdly, in the early years after 1945 there was a serious tension between those who wanted to forget the Nazi past of the city and those who insisted on remembrance, remorse, and the extensive documentation of the horrors. Fourthly, what prevailed in the end was the view that the symbolic role Nuremberg played in the rise and practice of Nazism and Hitler throughout Germany should be fully exhibited, but accompanied by the careful avoidance of any glorification of Nazi pageantry. For instance, the museum dedicated to the Nazi experience is called ‘a documentation center,’ and its architecture is intended to convey a sense of violation and menace. There is also a reluctance to show Leni Riefenstahl’s extraordinary propaganda film, “The Triumph of the Will” for an acknowledged fear that it might stimulate feelings of nostalgia rather than remorse. Finally, for those willing to probe a bit more deeply into the Nuremberg story in bygone centuries one encounters a disquieting series of pre-modern incidents of anti-Semitic persecution of Jews, common throughout Europe at the time, but still inevitably part of the history of this now vibrant and seemingly normal city.

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Honoring Henry Kissinger at Oslo

8 Dec

On December 10-11, the Nobel Peace Prize Forum Oslo will be launched, featuring Henry Kissinger and Zbigniew Brzezinski addressing the theme, “The U.S. and World Peace after the Presidential Election.” The Forum is intended to become an annual event closely linked to the celebrations surrounding the Nobel Peace Prize.

 

As many will remember, Kissinger, along with Le Duc Tho, was awarded the Nobel Peace Prize in 1973, perhaps the most controversial award in the long history of this most coveted prize. The prize in 1973 was given to the two men who negotiated the peace agreement that finally brought the war in Vietnam to a close. While the negotiations were in their most pivotal phase, the U.S. Government introduced the notorious ‘Christmas Bombing’ terrorist tactic to increase its diplomatic leverage over Hanoi, which also served to reassure its corrupt allies in Saigon that they were not being abandoned by Washington. Le Duc Tho, to his credit, citing this infamous background, refused the prize, while Kissinger accepted although he did not attend the ceremony.

 

What is difficult to grasp, is the thinking of the organizers of Nobel Peace Prize Forum, which led them to such infamous war-oriented political and intellectual figures as Kissinger and Brzezinski. Of course, the guardians of the Nobel are not alone. Among the many depressing features of the recent American presidential campaign was the distressing news that both Hillary Clinton and Donald Trump paid homage to Kissinger by publicizing foreign policy briefing visits with this most shaky pillar of the Washington establishment, but neither Clinton nor Trump aspire to the ideals of world peace that are supposed to animate the Nobel Peace Prize.

 

Kissinger’s involvement, direct and indirect, with the criminality of foreign governments that cruelly repress their own populations has been abundantly documented, set forth in a non-technical format by Christopher Hitchens in The Trial of Henry Kissinger (Verso, 2001), and in a more legal format in declassified government documents. This record establishes a strong case for investigation and likely prosecution for a long list of international crimes, including especially crimes against humanity. An NGO founded and led by the world renowned peace intellectual Fredrik Heffermehl, The Nobel Peace Prize Watch, has urged the Director of Public Prosecutions in Norway to take appropriate action with the view toward holding Kissinger criminally accountable.

 

Whether Norwegian law allows its courts to proceed in such a case depends on whether universal jurisdiction is considered available to address the alleged crimes (committed outside of Norway) of Kissinger. Because of the constraints surrounding the activity of the International Criminal Court, especially in dealing with the criminality of Western states, it is particularly important that national courts act as enforcement agents of the world community and end the impunity enjoyed by those who have so frequently and fragrantly violated international criminal law. In light of the adoption by the General Assembly of the Nuremberg Principles there seems to be an adequate foundation in international customary law for national courts to accept this responsibility to raise the level of accountability in international society. The physical presence of Kissinger in Norway offers an opportunity that were we living in a world where the global rule of law prevailed would not be missed. Sadly, we are aware that in the global setting providing the backdrop for his crimes geopolitics rather than the rule of law sets the tone, and it is highly unlikely that Kissinger will be formally apprehended when he visits Norway, although popular demonstrations are certain to occur. This tension between governmental refusal to adhere to the global rule of law and societal initiatives to impose accountability explain the international pervasiveness of double standards with regard to the implementation of international criminal law: accountability for the weak, impunity for the strong.

 

What is equally distressing is the Orwellian insensitivity of the Nobel authorities to the inappropriateness of treating Kissinger as though he is a highly trusted source of guidance and wisdom with respect to world peace. Kissinger has applauded the worst excesses of dictators, especially in Latin America, and backed the most immoral geopolitical policies throughout his long career. He has never even pretended to be interested in promoting a more peaceful world, and has viewed the United Nations with cynical indifference unless it can be deployed to promote U.S. geopolitical goals. Indeed, Kissinger has often argued in his writings that those who pursue peace as a value or goal are those most likely to induce war. While Secretary of State, Kissinger also admits being annoyed by aides urging greater attentiveness to the relevance of international law and morality.

 

Even pragmatically, Kissinger is hardly a helpful guide. As a warmonger, he has generally supported the long list of failed American interventions, including Vietnam. What is uncanny about the Kissinger brand is that his repeated errors of judgment have not tarnished his reputation, nor have his distasteful moral postures lowered the level of mainstream respect. In an article recently appearing in The New Yorker (Aug. 20, 2016) Jon Lee Anderson uses declassified materials to show how Kissinger lauded the Argentinian rulers for ridding their country of terrorism in the course of the despicable ‘dirty war,’ overlooking reliance on the vile tactics of torture and ‘disappearances’ systematically used against nonviolent activists and progressives.

 

It is the saddest of commentaries on the mainstream approach to peace, justice, and security that Kissinger should be singled out for honors or as a source of guidance at an event in Norway, a country with one of the strongest reputations for morally oriented internationalism. Such an impression is reinforced by Nobel sponsorship. It stretches the moral imagination to its breaking point once it is realized that those in Norway who have been entrusted with carrying out the wishes of Alfred Nobel should now be adding their weighty imprimatur to such a willfully distorted conception of world peace.

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Armenian Grievances, Turkey, United States and 1915

26 Apr

 

 

            On April 10 by a vote of 12-5, with one abstention, the U.S. Senate Foreign Relations Committee gave its approval to Resolution 410 calling upon Turkey to acknowledge that the massacres of Armenians in 1915, and subsequently, constituted ‘genocide.’ It also asks President Obama to adjust American foreign policy by advocating an “equitable, constructive, stable and durable Armenian-Turkish relationship including full acknowledgement of ‘the Armenian genocide.’” So far, Obama since becoming president has refrained from uttering the g-word, although he has acknowledged the historical wrongs done to the Armenian people in the strongest possible language of condemnation.

 

            Such resolutions, although widely understood to be symbolic and recommendatory, reflect the efforts of the Armenian diaspora to raise awareness of the true nature of what the Armenians endured in 1915, and especially to induce the Turkish government to acknowledge these events as ‘genocide,’ or else suffer the reputational consequences of embracing what is being called ‘denialism.’ The resolution is the latest move to build a strong international consensus in support of the Armenian sense of grievance, and in so doing generate pressures on the accused Turkish government to admit the full enormity of the crimes against the Armenian people by admitting that it was genocide. Further there may also be present an intention to reinforce an appropriate apology, should it be forthcoming, with such tangible steps as restoring stolen property and possibly even establishing a reparations fund.

 

            The Armenian campaign also makes the wider claim that this process of redress for a horrendous historic grievance will also act as a deterrent to the commission in the future of similar crimes. The Senate resolution, however, make a minimal contribution to these goals. It is little more than a gesture of good will explicitly associated with commemorating the 99th anniversary of the 2015 events. As the April 24th day of commemoration has passed without the resolution being put on the action agenda of the full Senate prior to its Easter recess the resolution becomes consigned to the permanent twilight of a recommendation that is never even consummated by the relevant legislative body. Such an interplay of action and inaction manifests an underlying governmental ambivalence as to how this issue should be formally addressed by the United States at official levels of government. Why? Because the expression criticism of the Turkish government for the manner it is addressing the Armenian demands for redress inevitably engages American foreign policy.

 

            The Turkish Foreign Minister has already indicated his displeasure with such initiatives, insisting that respected historians should investigate the claim of genocide, that it is not appropriate for third countries to meddle in such matters, and that such an initiative, if it were formally endorsed at higher levels in Washington, will have a negative influence on the search for some kind of mutually acceptable resolution of these persisting tensions. The Turkish narrative on 1915, which has been softening its oppositional stance during the past decade, still argues that there were atrocities and suffering for Turks as well as Armenians, including a considerable number of Turkish casualties. Further, that the massacres of Armenians were less expressions of ethnic hatred than expressive of a reliance on excessive and undisciplined force to suppress an Armenian revolt against Ottoman rule at a time when Armenians were siding with invading Russian armies in the midst of World War I.

 

What is at Stake

 

            There are two important, intertwined concerns present. First, the whole issue of inter-temporal justice, how to address events that took place one hundred years ago in a manner that is as fair as possible to the victims yet takes account of the passage of time in assessing responsibility for such long past events. Secondly, the degree to which such an issue should be resolved by the parties themselves within the frame of the country where the events took place, or within the framework of the United Nations, rather than be addressed in the domestic politics of third countries whose governments are likely swayed by the presence or absence of aggrieved minorities.

 

            My impression is that the current leadership in Turkey is less seriously committed to upholding the Turkish narrative than in the past, but neither is it willing to subscribe to the Armenian narrative in some of its key elements, especially the insistence that what took place in 1915 must be described as genocide if it is to be properly acknowledged. It is not only the inflammatory nature of the word itself, but also a reasonable apprehension in Ankara of ‘the Pandora’s Box’ aspects of such a process, which once opened would likely move from the word genocide to such delicate embedded questions as reparations and the restoration of stolen property. Especially in recent months, the Turkish political scene has been rather chaotic, and undoubtedly there is a present reluctance by Turkish leaders to stir the hot embers of its nationalist political culture by acceding to the Armenian agenda relating to resolving the conflict. Yet with the 100th anniversary of 1915 around the corner, Turkey has its own strong incentives for being pro-active in developing a forthcoming posture in relation to Armenia and the Armenians.

 

            Against such a background, it seems important to ask what it is that the Armenian demand for the redress of historic grievances is seeking. Is it the belated satisfaction of having Turkey formally declare and admit that what took place in 1915 was ‘genocide,’ or is it more than this? Is there embedded this further demand that Turkey honor the memory of these events by some sort of annual observance, perhaps coupled with the establishment of an Armenian Genocide Museum? Or as signaled already that Turkey is expected to establish a fund and reparations procedures that will allow descendants of the victims to put forward economic claims for the harms endured? In effect, is the full range of Armenian expectations apparent at this stage or merely somewhat clouded? As the experience with the Holocaust suggests, there is no single event that can permanently shut the doors of history or dry the tears of extreme remorse. At most, acknowledgement, apology, and even tangible steps initiate a process that will never completely end, nor bring a satisfying closure to those who identify with the victims of such an unforgivable stream of past occurrences.

            As well, parallel to the genocidal and 1915 Armenian agenda, is a long festering inter-governmental dispute between Turkey and the sovereign state of Armenia over control of Nagorno-Karabakh region in the middle of Azerbaijan that has closed the border between the two countries since 1993. The Acting Armenian Foreign Minister, Edward Nabandian, added fuel to this diplomatic fire by welcoming the Senate resolution as “an important step” toward establishing “historical truth and prevention of crimes against humanity.” By so doing, the international dispute over Nagorno-Karabakh is joined at the hip to the historical controversy about the events of 1915. In an unusual way, the Armenian campaign is mainly conducted under the direction of the Armenian diaspora, and has only been given a secondary emphasis by Armenia itself, which has generally seemed more concerned about economic relations, and especially the territorial dispute in Azerbaijan, when dealing with its Turkish neighbor.

 

            What is one to do about a course of events that occurred under distinct national and international conditions expressive of different structures and legal norms that prevailed a century earlier? I was similarly challenged recently after giving a lecture on moral responsibility in international political life. The question was posed by a native American in the audience who angrily asked me why I had failed to advocate the restoration of the land seized in earlier centuries from the indigenous peoples who then inhabited North America, implying that my silence about such matters was an implicit endorsement of genocide. Such a reaction is understandable on the part of those who identify with a victimized community, but cannot be prescriptive in relation to 21st century realities. Certainly it was genocidal in willing that distinct ethnic groups become extinct or endure forcible dispossession, but there was at the time no legal prohibition on such behavior, and whatever moral interdiction existed was inconclusive, despite the manifest cruelty of the colonizing behavior. At this point, the clock cannot be rolled back to apply contemporary standards of justice to past wrongdoings, although ethical sensitivity and empathy is fully warranted. And what is totally unacceptable are any present efforts to rationalize or even glorify past barbarisms. For instance, the disgusting revisionist view of American slavery recently articulated by the right-wing libertarian rancher, Cliven Bundy, who absurdly asserts that slaves were probably happier than freed African Americans because they enjoyed the satisfactions of family life. As Charles Blow observes in an opinion piece, “Slaves dishonored in life must not have their memories disfigured by revisionist history.” {Blow, “A Rancher’s Romantic Revisionism,” NY Times, April 26, 2014]

 

            We must begin from where we are (but not end there), seeking as humane and transparent a response to these historic injustices as seems possible given both the intervening developments and the relevant balance of forces now and then. True, the anti-colonial movements of the last half of the 20th century did undo earlier injustices because of their capacity to mobilize effective movements of popular resistance. Indigenous people do not have this capacity, and are confined to what legal remedies are voluntarily conferred, and to what degree documenting the past creates sufficient public sympathy to support initiatives seeking some fractional measure of moral and material rectification.

 

            To some extent, accurate documentation is itself a form of historic redress, as was the case with the post-dictatorial ‘truth and reconciliation’ processes that tried in Latin American and South Africa to reconcile peace and justice during a transition to constitutional democracy, yet never brought anything approaching satisfaction or even closure to the victim communities that had earlier experienced unforgiveable criminality. We should also learne from Nelson Mandela’s willingness to overlook the structural injustices associated with economic and social apartheid in achieving the ‘political miracle’ of a peaceful dissolution of political apartheid. Also relevant are some of the late reflections of Edward Said on how to address the Palestine/Israel struggle given the realities that existed fifty years after the establishment of Israel. In effect, Said was of the opinion that despite the legally and morally unacceptable dispossession of the Palestinian people from their homes and homeland in 1948, it was now both futile and wrong to challenge any longer the existence of Israel. To resolve the conflict, in his view, required an acknowledgement of past injustices, especially the nakba, and mutually agreed arrangements that allowed the two peoples to live and co-exist in peace under conditions of equality, security, and dignity.

 

Was it Genocide?

 

            Is there a single historical truth that must be affirmed by all those of good will, and is it what the Armenian movement and U.S. Senate resolution contends? Can Turkey only express its good faith by subscribing literally to the main features of the Armenian narrative? Until it makes such a willingness clear it is unlikely to deflect the accusatory agenda of those demanding redress. In effect, is the litmus test of Turkish sincerity and remorse dependent upon a formal acknowledgement that what took place in 1915 was unequivocally ‘genocide’? I believe the historical truth is quite unequivocal from a factual and moral perspective, namely, that there was a systematic and deliberate effort to eliminate the Armenian minority from Turkey stemming from government orders and plans, and although occurring in the midst of war, political instability, and national upheaval, the ethnic violence was so one-sided and comprehensive as to undermine the credibility of the central contention of the Turkish narrative that World War I brought about an inter-ethnic experience of shared suffering replete with atrocities, but the blame cannot be exclusively attributed to Turkey, nor can the suffering be exclusively assigned to the Armenian community. This historical truth of predominant Turkish responsibility, however, is far more equivocal in relation to the further Armenian insistence that these genocidal events constitute the crime of genocide as embodied in the 1948 Genocide Convention, which came into force in 1951.

 

            Criminal law is not retroactive. Even the Nuremberg Judgment, which endorsed such innovations as ‘crimes against the peace’ and ‘crimes against humanity’ avoided any attempt to hold the Nazi leaders being prosecuted responsible for genocide despite the magnitude of the Holocaust and the abundance documented evidence of the deliberate and planned elimination of the Jewish people. What exactly, then, is the crime of ‘genocide’? Can it be said to pre-exist the entry into force of the Genocide Convention, considering the wording of its first article, but if so, why was genocide ignored in the prosecution of these Nazis? The wording of Article 1 of the Genocide Convention lends an aura of ambiguity to such queries: “The contracting parties confirm that genocide whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” (emphasis added). The word ‘confirm’ in Article 1 seems supportive of the view that the crime depicted in the treaty somehow preexisted the adoption of the Convention, and that only the usage of the word is retroactive. Yet the concept of genocide was not conceived to be a legal category until the crime was proposed in 1944 by Raphael Lemkin. I would suppose that had Lemkin persuaded the political community to adopt the Genocide Convention a decade earlier the Nuremberg indictments would have included the crime, and possibly the decision would have given guidance as to whether the crime came into being with treaty or antedated its ratification.

 

            Controversy is present as soon as the idea is to compel Turkey to admit that the massacres of 1915 are massive commissions of the crime of genocide, and as such, have an array of legal implications. More flexible, by far, would be a process of inquiry by an international commission of independent experts, which included well respected international lawyers, that would likely conclude that the events in question were clearly ‘genocidal’ in character, and if they had occurred after the Genocide Convention was adopted in 1950, they would constitute ‘genocide.’

            The World Court in responding to the Bosnia complaint alleging Serbian genocide concluded that a high evidentiary bar exists to establish the crime of genocide even with the benefit of the Convention, but it did find that the 1995 massacre in Srebrenica was ‘genocide.’ The majority decision of the highest judicial body in the UN System indirectly highlights the crucial differences between the crime of genocide and the psycho/political/sociological realities of genocidal behavior.

 

Is U.S. Government Involvement Constructive?

 

            The question of whether the United States should be involved in shaping international public opinion is less significant than the substantive dispute about the events, but far from trivial. The questionable political opportunism that connects the responsiveness of Congress to a well-organized Armenian lobby in the United States does seem to make reasonable the official Turkish response that it is never helpful for a foreign government to take the anti-government side in an unresolved controversy of this sort. It is bound to harm bilateral relations between the two countries. In effect, the mutual respect for sovereignty requires governments to refrain from such meddling under almost all circumstances. One can easily imagine the furor in the United States if the Turkish Parliament passed a resolution insisting that Washington finally acknowledge that native American tribal communities were victims of genocide or that descendants of slaves are entitled to reparations. However sincere and morally plausible, in a world where legality and legitimacy are almost always matters for territorial sovereigns to resolve, the foreign source of such sentiments are deeply resented, and are more likely to produce an angry backlash than to induce an accommodating retreat.

 

Finding a Solution

            From the Armenian perspective seeking redress, is this show of American governmental support helpful or not? I suspect that a more discreet effort would produce less defensiveness on the Turkish side, and more willingness to seek a mutually satisfactory outcome. Mobilizing the American Congress and French legislative bodies is somewhat similar to looking beneath the lamppost for a watch dropped in the darkness of the night. Admittedly, if the purpose is to raise awareness and mobilize support from the Armenians such a public relations campaign may be effective even if it stiffens Turkish resistance in the short run.

             A second important concern is how to address the genocide issue given the passage of time, and the interplay of preoccupations on both sides. My preference would be for both Turkish and Armenian representative to agree that it is permissible to use the word genocide with reference to the Armenian ordeal of 1915, but with a shared understanding that the use of the word in relation to the massacres of Armenians is without legal effect. The concept of genocide is inherently ambiguous as it simultaneously puts forward an empirical description of a set of events that offers a political, psychological, sociological, and ethical evaluation of those events, while also advancing the possible legal evaluation of such events as constituting the crime of genocide, which would also mean sustaining a heavy burden of proof as required to establish specific intent, which is a vital element of the crime.

 

            What does not help internationally, it would seem, is posturing by the U.S. Congress. It will probably necessitate some quiet fence-mending by the Obama presidency to maintain good Turkish-American relations, a key strategic priority. At the same time, the Turkish government should not sit still. It should do more than angrily push aside this American initiative and the related Armenian campaign, and show a more forthcoming attitude toward finding common ground to heal gaping Armenian wounds that remain open after a century. Mounting pressure due to the worldwide Armenia is definitely raising the level of awareness, but only wisdom, empathy, and good will on both sides can overcome such an embittered past. In some respects, there is something tragic about this standoff between those who have reason to want the past to be a matter of historical reflection and those who insist that the past is forever present.

 

            The Turkish government has reiterated its offer to establish a joint commission composed of Armenian, Turkish and international historians to establish an authoritative narrative. Besides the likelihood that existing disagreements would be reproduced in the working of this type of commission, the idea that core concern is ‘historical’ misses a main point that such a traumatic series of events need to be interpreted from multiple perspectives, including that in this instance of international criminal law. Establishing the factual reality, which strongly favors Armenian empirical claims, does not resolve the question of what would qualify as an appropriate acknowledgement by the Turkish government, nor does it address the lurking concern as to whether acknowledgement is sufficient, and if not, what further steps must be taken by Turkey if it is to satisfy the Armenian campaign.

 

 

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Toward A Jurisprudence of Conscience

26 Nov

Ever since German and Japanese surviving leaders were prosecuted after World War II at Nuremberg and Tokyo, there has been a wide abyss separating the drive for criminal accountability on the part of those who commit crimes against peace, crimes against humanity, war crimes from the realities of world politics. The law is supposed to push toward consistency of application, with the greatest importance attached to holding accountable those with the greatest power and wealth. The realities of world politics move in the opposite direction, exempting from criminal accountability those political actors that play dominant roles. In a sense the pattern was encoded in the seminal undertakings at Nuremberg and Tokyo that assumed the partially discrediting form of ‘victors’ justice.’ Surely the indiscriminate bombings of German and Japanese cities by Allied bomber fleets and the dropping of atomic bombs on Hiroshima and Nagasaki were ‘crimes’ that should have been investigated and punished if the tribunals had been fully ‘legal’ in their operations. It was the case, especially in Tokyo, that the tribunal allowed defendants to be represented by competent lawyers and that the judges assessed fairly the evidence alleging criminality, producing dissenting opinions in the Japanese proceedings and there was an acquittal at Nuremberg. In effect, there was a measure of procedural fairness in these trials. Without doubt those who were accused of crimes did engage in activity that was legally permissible and important for the future of world order to criminalize through findings of guilt and impositions of punishment, but this outcome was flawed to the extent that victors were not subject to comparable standards of accountability.

There was a second message arising from these trials: that winning side by conducting trials of this kind takes advantage of the opportunity to reinforce claims as to the justice of historical verdicts by pronouncing on the criminality of losers while overlooking the criminality of victors.  There was also a third message that tries to overcome the flaw of double standards. It has been called ‘the Nuremberg promise,’ and involves a commitment by the victors in the future to abide by the norms and procedures used to punish the German and Japanese surviving military and political leaders. In effect, to correct this flaw associated with victors’ justice by making criminal accountability in the future a matter of law applicable to all rather than a consequence of the outcome of wars or a reflection of geopolitical hierarchy.

The Chief Prosecutor at Nuremberg, Justice Robert Jackson (excused temporarily from serving as a member of the U.S. Supreme Court), gave this promise an enduring relevance in his official statement to the court: “If certain acts and violations of treaties are crimes, they are crimes whether the United  States does them or whether Germany does them. We are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.” These words are repeatedly quoted by peace activists, yet ignored by political leaders who took no notice of either the original flaw at Nuremberg or the obligation to remove it. Since 1945 crimes by the victors in conflict have continued to be overlooked by international criminal law, while prosecutions reflecting geopolitical leverage have kept happening without any concerted intergovernmental or UN effort to correct the imbalance. Since the end of the Cold War implementation of criminal responsibility has been increasingly imposed on losers in world politics, including such leaders as Slobadan Milosevic, Saddam Hussein, and Muammar Qaddafi each of whom were deposed by Western military force, and either summarily executed or prosecuted.

This dual pattern of criminal accountability that cannot be fully reconciled with law or legitimacy has given rise to several reformist efforts. Civil society and some governments have favored a less imperfect legalization of criminal accountability, and raised liberal hopes by unexpectedly achieving the establishment of the International Criminal Court in 2002 through the extraordinary efforts of a global coalition of NGOs and the commitment of a group of middle powers. Fearful of losing their impunity geopolitical heavyweights such as the United States, China, India, and Russia have refused to sign on to the ICC. Yet this and other formal initiatives have not yet seriously impinged on the hierarchal realities of world politics, which continue to exhibit an embrace of the Melian ethos when it comes to criminal accountability: “the strong do what they will, the weak do what they must.” Such an ethos marked, for Thucydides, unmistakeable evidence of Athenian decline, but for contemporary realists a different reading has been prevalent, underpinning political realism, contending that hard power calls the shots in history, and the losers have no choice but to cope as best they can. Double standards persist: the evildoers in Africa are targets of prosecutors, but those in the West that wage aggressive war or mandate torture as national policies continue to enjoy impunity as far as formal legal proceedings are concerned.

The existence of double standards is part of the deep structure of world politics. It was even given constitutional status by being written into the Charter of the United Nations that permits the five permanent members of the UN Security Council, that is the winners in 1945, to exercise a veto over any decision affecting the peace and security of the world, thereby exempting the world’s most dangerous states, being the most militarily powerful and expansionist, from any obligation to uphold international law. Such a veto power, while sounding the death knell for the UN in its core role of war prevention based on law rather than geopolitics, is probably responsible for keeping the Organization together through times of intense geopolitical conflict. Without the veto, undoubtedly the West would

have managed to push the Soviet Union and China out the door during the Cold War years, and the UN would have disintegrated in the manner of the League of Nations, which after the end of World War I converted Woodrow Wilson’s dream into a nightmare.  Beyond this, even seen through a geopolitical optic, the anachronistic character of the West-centric Security Council is a remnant of the colonial era. 2011 is not 1945, but the difficulty of achieving constitutional reform means that India, Brazil, Turkey, Indonesia, and South Africa seem destined to remain permanent ladies in waiting as the UN goes about its serious male business. What this means for UN authority, including its sponsorship of the politics of individual criminal accountability, is that all that is ‘legal’ is not necessarily ‘legitimate.’

My argument seeks to make two main points: first, double standards pervade the application of international criminal law eroding its authority and legitimacy; and secondly, those geopolitical hierarchies that are embedded in the UN framework lose their authority and legitimacy by not adapting to changing times and conditions, especially the collapse of the colonial order and the rise of non-Western centers of soft and hard power.

There are different kinds of efforts to close this gap between the legal and the legitimate in relation to the criminality of political leaders and military commanders. One move is at the level of the sovereign state, which is to encourage the domestic criminal law to extend its reach to cover international crimes. Such authority is known as Universal Jurisdiction (UJ), a hallowed effort by states to overcome the enforcement weaknesses of international law, initially developed to deal with the crime of piracy, interpreted as a crime against the whole world. Many liberal democracies in particular have regarded themselves as agents of the international legal order, endowing their judicial system with the authority to apprehend and prosecute those viewed as criminally responsible for crimes of state. The legislating of UJ represented a strong tendency during the latter half of the twentieth century in the liberal democracies, especially in Western Europe. This development reached public awareness in relation to the dramatic 1998 detention in Britain of Augusto Pinochet, former ruler of Chile, in response to an extradition request from Spain where criminal charges had been judicially approved. The ambit of UJ is wider than its formal implementation as its mere threat is intimidating, leading those prominent individuals who might be detained and charged to avoid visits to countries where such claims might be plausibly made. As might be expected, UJ gave rise to a vigorous geopolitical campaign of pushback, especially by the governments of the United States and Israel reacted with most fear to this prospect of criminal apprehension by foreign national courts. As a result of intense pressures, several of the European UJ states have rolled back their legislation so as to calm the worries of travelers with tainted records of public service!

There is another approach to spreading the net of criminal accountability that has been taken, remains controversial, and yet seems responsive to the current global atmosphere of populist discontent. It involves claims by civil society, by the peoples of the world, to establish institutions and procedures designed to close the gap between law and legitimacy in relation to the application of international criminal law. Such initiatives are appropriately traced back to the 1966-67 establishment of the Bertrand Russell International Criminal Tribunal that examined charges of aggression and war crimes associated with the American role in the Vietnam War. The charges were weighed by a distinguished jury composed of moral and cultural authority figures chaired by Jean-Paul Sartre. The Russell Tribunal was derided at the time as a ‘kangeroo court’ or a ‘circus’ because its conclusions could be accurately anticipated in advance, its authority was self-proclaimed and without governmental approval, it had no control over those accused, and its capabilities fell far short of enforcement. What was overlooked in such criticism was the degree to which this dismissal of the Russell experiment reflected the monopolistic and self-serving claims of the state and state system to control the administration of law, ignoring the contrary claims of society to have law administered fairly in accord with justice, at least symbolically. Also ignored by critics was the fact that only such initiatives could overcome the blackout of truth achieved by the geopolitics of impunity. The Russell Tribunal may not have been ‘legal’ as understood from conventional governmental perspectives, but it was ‘legitimate’ in responding to double standards, by calling attention to massive crimes and dangerous criminals who otherwise enjoy a free pass, and by providing a reliable and comprehensive narrative account of criminal patterns of wrongdoing that destroy or disrupt the lives of entire societies and millions of people. As it happens, these societal initiatives require a great effort, and only occur where the criminality seems severe and extreme, and where a geopolitical mobilization precludes inquiry by established institutions of criminal law.

It is against this background that we understand a steady stream of initiatives that build upon the Russell experience. Starting in 1979, the Basso Foundation in Rome sponsored a series of such proceedings under the rubric of the Permanent Peoples Tribunal that explored a wide variety of unattended criminal wrongs, including dispossession of indigenous peoples, the Marcos dictatorship, Armenian massacres, self-determination claims of oppressed peoples.  In 2005 the Istanbul World Tribunal on Iraq inquired into the claims of aggression, crimes against humanity, and war crimes associated with the U.S./UK invasion and occupation of Iraq, commencing in 2003, causing as many as one million Iraqis to lose their lives, and several million to be permanently displaced from home and country. In the last several weeks the Russell Tribunal on Palestine, a direct institutional descendant of the original undertaking, held a session in South Africa to investigate charges of apartheid, as a crime against humanity, being made against Israel. In a few days, the Kuala Lumpur War Crimes Tribunal will launch an inquiry into charges of criminality made against George W. Bush and Tony Blair for their roles in planning, initiating, and prosecuting the Iraq War, to be followed a year later by a subsequent inquiry into torture charges made against Dick Cheney, Donald Rumsfeld, and Alberto Gonzales. I intend to write subsequently about each of these proceedings.

Without doubt such societal efforts to bring at large war criminals to symbolic justice should become a feature of the growing demand around the world for real democracy sustained by a rule of law that does not exempt from responsibility the rich and powerful whether they are acting internally or internationally.

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