Tag Archives: United Nations Security Council

Responding to The Syrian Challenge

27 May

 

 

            The issue facing the U.S. Government at this stage is not one of whether or not to intervene, but to what extent, with what objectives, and with what likely effects. More precisely, it is a matter of deciding whether to increase the level and overtness of the intervention, as well as taking account of what others are doing and not doing on the Assad regime side of the conflict. Roughly speaking, there have been interventions by the Turkey, the United States, Qatar, Saudi Arabia, Israel, and the EU on the insurgent side, and by Russia, Iran, Hezbollah on the regime side, with a variety of non-Syrian ‘volunteers’ from all over being part of the lethal mix.

 

            From an international law perspective the issues are blurred and controversial, both factually and jurisprudentially. The Assad government remains the government of Syria from most international perspectives, despite having repeatedly perpetrated the most despicable crimes against humanity. Such behavior has eroded Syria’s status as a sovereign state whose territorial integrity, political independence, and governmental authority should be respected by outside actors including the UN. Under most circumstances the UN Charter obligates the Organization to refrain from intervening in matters internal to states, including civil wars, unless there is a clear impact on international peace and security.  Such an impact certainly seems to exist here, given the large-scale regional proxy involvement in the conflict. Given the pull and push of the current situation in Syria, the UN Security Council could, if a political consensus existed among its permanent member, authorize a limited or even a regime changing intervention under a UN banner. For better or worse such a consensus does not exist, and never has, since the outbreak of violence usually dated as commencing on March 15, 2011 with the violent suppression of previously peaceful anti-government demonstrations in the cities of Aleppo, Damascus, and especially Daraa, often known as ‘the cradle of the revolution.’ The situation is further clouded by bad geopolitical memories, especially the Security Council authorization to use force in Libya to protect the civilian population of Benghazi in March 2011. On that occasion, Russia and China, as well as Germany, Brazil, and India, put aside their anti-interventionist convictions, and allowed an intervention under NATO auspices to go forward by abstaining rather than voting against the authorization of force.  But what happened in Libya thereafter was deeply disturbing to the abstainers—instead of a limited authorization to establish a no-fly zone around Benghazi, a full-fledged air campaign with regime-changing objective in mind went forward without any effort by the intervenors to expand their mission or even to explain why the limits accepted in the Security Council debate and resolution were so blatantly put to one side. After such a deception trust was broken, and the difficulties of obtaining UN approval to act under the norm of ‘responsibility to protect’ were greatly magnified.

 

            Should it not be argued that the people of Syria should not be sacrificed because of this betrayal of trust in relation to Libya, and besides, Western leaders contend is not Libya and the world better off with Qaddafi gone. If this outlook is persuasive, and China and Russia continue to thwart a rescue of the Syrian people by threatening to veto any call for action, would it not be justifiable for a group of states to act without UN authorization, claiming Kosovo-like legitimacy. Yet there are major costs involved when the restraining ropes of law are loosening for the sake of moral and political expediency.  To cast aside the Charter regime is a move toward restoring the discretion of states when it comes to waging war, which was the main rationale for establishing the UN in the first place.

 

            This prohibition on non-defensive force holds legally even if a strong humanitarian justification for intervention can be made. The Kosovo precedent suggests that in the face of an imminent humanitarian catastrophe, an intervention will be widely endorsed as legitimate by the organized international community even if it is clearly unlawful. If such an undertaking is reasonably successful in ending the violence and saving lives, there is likely to be an ex post facto endorsement of what was done, especially if seems to most respected observer that humanitarian objectives were not invoked by the interveners to obscure the pursuit of strategic goals. This is what happened after the NATO War to remove the Serbian presence from Kosovo. The UN watched from the sidelines without condemning the unlawful use of force, and has played a central role in the post-conflict reconstruction of Kosovo. More surprisingly, the UN, to its regret, even attempted to play such a role after the flagrantly unlawful and illegitimate attack upon and occupation of Iraq, despite having earlier rebuffed the concerted American effort to win the approval of the Security Council prior to the war. It should not have come as a great surprise that the Iraqi resistance forces targeted the UN Headquarters in Baghdad, apparently regarding the UN as having becoming an arm of the occupying and invading foreign forces. Unlike Kosovo where the Serbs were driven out, in Iraq despite a massive displacement of civilians, resistance forces stayed in the country to fight against the occupiers and on behalf of their vision of a post-occupation Iraq.

 

            There are important world order issues present aside from the questions of legality and legitimacy. There are also pragmatic and prudential dimensions of any decision about what to do in response to Syria’s descent into chaos and horrific violence, with no early end in sight. Although the sovereign state is not an absolute ground of political community, it is the basic unit comprising world order, and the logic of self-determination should be allowed to prevail in most situations even when the results are disappointing. The practical alternative to the logic of self-determination is the hegemonic logic of hard power, and its record is not a happy one if viewed from the standpoint of people and justice. Sovereign equality has been the weave of the juridical order ever since the Peace of Westphalia in 1648, although the existential inequality of states has offered a counterpoint that as given rise to a variety of geopolitical regimes, e.g. the European colonial period, the bipolarity of the Cold War, the unipolarity of the 1990s, and perhaps, the emerging multipolarity of the early 21st century.

 

            When crimes against humanity cross a certain threshold of severity,  which is itself necessarily a subjective judgment, or where genocide is credibly threatened or actually taking place or credibly threatened, the normally desirable and applicable norm of non-intervention and its internal complement of self-determination, gives way to claims of ‘humanitarian intervention,’ a practice somewhat sanitized recently by being accorded normative authority in the form of a ‘responsibility to protect.’ National primacy gives ground to the primacy of the human in such exceptional circumstances, and the human interest can justify a full-scale intervention provided prudential and pragmatic factors seem likely to allow intervention to succeed at acceptable costs, and to be procedurally endorsed in some secondary way.  Of course, there is also the question of disentangling strategic motives for intervention from the humanitarian justification. There is no easy formula for distinguishing between acceptable and unacceptable blends of the strategic and the moral, but as Noam Chomsky warned during the Kosove intervention, ‘military humanism’ is not believable because double standards are so rampant. Why are the Kosovars protected but not the besieged population of Gaza? Why the Libyans but not the Syrians? The presence of double standards is not the end of the story. Without some strategic incentive it is unlikely that the political will is strong enough to succeed with a military undertaking that is purely a rescue operation. Recall how quickly the United States backed away from its involvement in Somalia after Black Hawk Down incident in 1993. In that sense, the presence of oil, maritime shipping lanes, pipeline routes is a strategic interest that will offset the costs of war for a considerable number of years as the Iraq invasion of more than ten years ago illustrated, but even in Iraq an eventual acknowledgement of the inability to achieve the strategic objectives led to a conclusion to give in and get out, time ran out. A democratic public does not accept the human and economic costs of a non-defensive war indefinitely, no matter how much the media plays along with the official line. That is the lesson that is imperfectly learned by politicians in a long list of encounters, most prominently, Vietnam, Iraq, and now Afghanistan.

 

            Arguably, in 1999 what happened in Kosovo was a positive scenario for interventionary diplomacy. NATO intervened without a green light from the UN, and yet managed, although without achieving complete success, to provide the great majority of the Kosovar population not only with security but with support for their claim of self-determination. Before the intervention, most of the Kosovo population was living under oppressive conditions, and faced a severe threat of worse to come. As many as a million people, almost half of the population, sought temporary refuge in nearby Macedonia, but ratified the intervention by returning to their homeland as soon as NATO had forced their Serbian oppressors to leave. There are complexities beyond the debate about the use of force. Who would settle the question of competing sovereign claims mounted by Belgrade and Pristina? It appears that the resolution of this dispute will be resolved for the foreseeable future by the de facto realities, which is to say in favor of Kosovar claims of political independence and in opposition to Serbian claims of historic sovereign title.

 

            Such a positive outcome didn’t occur in Iraq, which was attacked in 2003 without UN authorization, and in the absence of a humanitarian emergency, and the effects of the undertaking were horrendous in terms of level of devastation and loss of life, agitating sectarian conflict, with no stability or decent government put in place or in sight. A ruthless dictator who brought stability to Iraq was replaced by an authoritarian regime beset by enemies from within, including even the loss of control of the northern regions run by the Kurdish majority as a virtually of a state within the state. Such an intervention was neither legitimate nor lawful. The Libyan intervention of 2011 seems an intermediate case, if evaluated either from the perspective of just cause or overall consequences. The dust has certainly not settled in Libya, and at this point it is difficult to tell whether the future will resemble more the strife of Iraq or the relative calm of, say, Bosnia.

 

            How does Syria fit into this picture based on recent experience with large-scale interventions? The situation in Syria qualifies for intervention on behalf of a beleaguered population that have endured great suffering already, and in this respect, even absent UN authorization, the legitimacy rationale of Kosovo would seem sufficient. According to a variety of reports there have been at least 80,000 killed in the Syrian conflict, with an incredible 4 million Syrians internally displaced, with an additional 1.5 million Syrian refugees in neighboring countries, especially, Turkey, Lebanon, and Jordan.  This massive spillover is giving rise to severe destabilizing tensions in these countries, and creating a rising risk that the internationalized civil war in Syria will further engage other countries directly in combat operations. Israel has already three times struck at targets in Syria that were allegedly connected with weapons shipments to Hezbollah in Lebanon, and there are reports that Beirut has been hit by a rocket sent from Syrian rebel forces. Also relevant is the line in the sand drawn by Obama in relation to the use of chemical weapons by Damascus, or the depots used to store these weapons falling into hostile hands, and the Assad threats of retaliation, and some signs of violence on the border separating Syria from the Israeli occupied Golan Heights. And finally, the allegations by Israel and some right wing member of the U.S. Congress urging more aggressive moves in relation to Iran, with Netanyahu contending that Iran is seeking to become a ‘nuclear superpower’ with a program larger than that of either North Korea and Pakistan, both already members of the nuclear weapons club.

 

            The dangers of widening the war zone in a disastrous manner and of acting in behalf of the questionable agendas of states other than Syria greatly complicates the response to the Syrian internal crisis. It also gives a heavy weight to the question: how to take account of prudential considerations that relate to probable costs and effects of various alternative courses of action? Here there is much less prospect that sufficient force could and would be used to tip the conflict in favor of the disunited rebel groups in the direction of an acceptable outcome, or even that a sustainable ceasefire could be achieved. The more likely result of any further escalation of external intervention is to magnify the conflict still further, and this would likely include encouraging counter-moves by the powerful foreign friends of the Assad government. It needs to be realized that outsiders are engaged heavily on both sides, and each can credibly blame the other, although it does seem to be widely agreed that by far the greatest share of responsibility for the commission of atrocities belongs to the governing authorities operating out of Damascus. There is something strange about the alignments, with the conservative Arab governments in Qatar and Saudi Arabia, as well as the United States and Western Europe, backing the revolutionary insurgency, despite it being increasingly dominated by radical Islamic participation, especially Jilhat al-Nusra. On the other side, Iran’s religiously oriented government finds itself aligned to the secular Ba’athist leadership in Damascus. 

 

            Against this background only a diplomacy of compromise seems both justifiable as the best among an array of bad option and prudent in having the best hope of ending the violence and putting Syria on a trail that could lead to political normalcy. But a diplomacy of compromise accepts the stalemate on the battlefield as its necessary starting point, and does not set preconditions, such as the removal of Bashar al-Assad from his position as head of state and the demand for a post-Assad transitional government in Damascus. Nor in like measure can a diplomacy of compromise expect the opposition to trust the government or to lay down their arms if the Assad regime is left in control of the governance structures in the country. Such a process can only hope to be effective if the two sides, at least subjectively, realize that they are trapped in an endless and irreversible downward spiral, and act accordingly, although not needing to admit such an unsatisfactory outcome in their public utterances. There are pitfalls. A ceasefire, even if bolstered by a major peacekeeping presence and some devolution of political authority that takes account of which side controls which city and region.

 

            The Syrian situation is further bedeviled by the absence of a unified insurgent leadership, making it unclear who can speak authoritatively on behalf of insurgent forces. Just a week ago some of the opposition forces met in Istanbul under the auspices of the National Coalition for Syrian Revolutionary and Opposition Forces, issuing a 16 point proposal that called for the departure of Assad from the country, the establishment of a coalition government to manage the transition, with the inclusion of some members of the Assad leadership, and impunity for all allegations of criminality associated with the strife. Such a proposal seemed to arouse controversy even at the coalition meeting, and seems without great support in Syria if the views of the various opposition groupings are all taken into consideration. In the meantime, the United States is acting strenuously to convene a second conference in Geneva during the month of June to exert pressure on the Assad government to negotiate an end to the war on the basis of the removal of Assad as president and the establishment of a pluralist transitional government tasked with organizing elections. The American Secretary of State, John Kerry, is energetically pushing this plan, which is linked to a threat—either negotiate along the lines we propose, or the arms embargo will be lifted, and the rebel militias will receive arms. Although the language being used by the United States and others in UN Action Group for Syria and the Friends of Syria is respectful of the role of the Syrian people in shaping the future of the country, there is a coercive aura surrounding this surge of diplomatic initiative that is dysfunctional to the extent that it seems based on the insurgency having the upper hand rather than there being a stalemate. Under the conditions prevailing in Syria, by far the role for external actors is to assume a facilitative mode that is fully supportive of a framework for negotiations based on a diplomacy of compromise. The litmus test for a diplomacy of compromise is the mutual realization that a battlefield stalemate cannot be broken by acceptable means. When and if this realization takes hold negotiations can proceed in a serious manner and a ceasefire is more likely to hold. What this would mean concretely is difficult to discern, and would undoubtedly be difficult for the parties to agree upon. An urgent preliminary step would be to invite trusted international envoys from non-geopolitically activist governments to talk with the entire spectrum of political actors to ascertain whether such a diplomacy of compromise has any traction at the present time, and if not, why not.

 

            Suppose such an initiative fails, and cannot it be said that this approach has already been tried under UN and Arab League auspices, designating such respected global figures as Kofi Annan and Lakhdar Brahimi to undertake a similar mission? Perhaps, such initiatives preceded the recognition by the Syrian antagonists that the military path is blocked and bloody, and that now the timing is better, although maybe not good enough. It could be that such an appreciation led Moscow and Washington to agree on convening a conference of interested governments in Geneva next month that is expected to include the government of Syria.  Such an international effort suggests that outsiders might be able to find enough common interests to put their geopolitical weight behind a diplomacy of compromise, but they should not attempt to do anything more by way of imposing conditions. An effective and legitimate diplomacy of compromise must be seen as coming from within, and not a maneuver that is executed from without. Of course, such restraint is not inconsistent with upgrading efforts to soften the hardships of Syrian refugees and those internally displaced, nor upgrading efforts to meet uregent relief needs in Syria, which probably calls for allowing reliable NGOs to take over the bulk of the humanitarian challenge, but again in a manner faithful to the ethos of compromise, which includes suspending disbelief as to who is right and who wrong.

 

            But what of the Jalhat al-Nusra extremists in the insurgent ranks, credited with doing the most arduous recent fighting on the insurgent side? And what about the war criminals running the government in Damascus? Or their Hezbollah allies also given major combat roles in the last several weeks? Can these realities be wished away, and if not how to respond? Radical uncertainty prompts caution with respect to every alternative course of action, including throwing up one’s hands in despair. Obviously a diplomacy of compromise is not a panacea, and likely is a non-starter, but in such a desperate situation it seems worth trying, provided it does not become a different kind of battlefield in which the goals sought by violence are being pursued by statecraft, doing nothing more than instituting an intermission between periods of unrestrained violence for the weary combatants. My essential argument is that until the parties engaged in hostilities on both sides recognize their inability to achieve a political victory by way of the battlefield, and external actors acquiesce in this recognition, there can only take place an unproductive and wrongheaded coercive diplomacy of partisanship, supporting the claims of the anti-Assad side. It should have become clear after more than two years of bloodshed and atrocities that no amount of geopolitical arm-twisting will lead Damascus and their own constituencies to place the destiny of Syria on this kind of diplomatic chopping block. 

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On Syria: What to Do in 2013

19 Jan

 

            I took part last week in an illuminating conference on Syria sponsored by the new Center of Middle East Studies that is part of the Josef Korbel School of International Studies at the University of Denver. A video of the keynote panel featuring Michael Inatieff, Ken Roth, and Rafif Jouejeti can be found at http://www.youtube.com/watch?v=95Ku-7SgzKg. This Center has been recently established, and operates under the excellent leadership of Nader Hashemi and Danny Postel, who previously together edited the best collection of readings on the Green Revolution in Iran published under the title THE PEOPLE RELOADED: THE GREEN MOVEMENT AND THE STRUGGLE FOR IRAN’S FUTURE ( a valuable resource not only on the Green Movement itself, but in relation to movement politics in a setting of oppressive governance; obtain the book: http://www.mhpbooks.com/books/the-people-reloaded/).

 

            The conference brought together a mixture of Syrian specialists, Syrian activists, and several of us with a more general concern about conflict in the region, as well as with human rights and as participants in the heated debates of recent years about the virtues and vices of ‘humanitarian intervention’, what is now being called ‘Responsibility to Protect’ of ‘R2P’ in UN circles and among liberals. I came to the gathering with a rather strong disposition to present myself as a confirmed R2P skeptic, regarding it as a cynical geopolitical euphemism for what Noam Chomsky labeled as ‘military humanism’ in the context of the controversial NATO Kosovo War of 1999. Ever since the Vietnam War I have viewed all Western claims to use force in the post-colonial non-West with suspicion. I support presumptions in favor of non-intervention and self-determination, both fundamental norms of international law. But I left the conference dissatisfied with my position that nothing more could or should be done at the international level to help end the violence in Syria or to assist the struggle of the Syrian people. I became convinced that human solidarity with the ordeal of the Syrian people was being deeply compromised by the advocacy of passivity in the face of the criminality of the Damascus government, although what to do that is genuinely helpful remains extremely difficult to discern.

 

            In the immediate background of the debate on Syrian policy are the bad memories of stealth diplomacy used by the United States and several European partners in March 2011 to gain UN Security Council backing for the establishment of a No Fly Zone to protect the beleaguered and endangered population of the Libyan city of Benghazi. What ensued from the outset of the UN authorized mission in Libya was a blatant disregard of the limited mandate to protect the population of a city from a threatened massacre. In its place, the NATO undertaking embarked on a concerted regime-changing NATO mission that ended with the unseemly execution of the Libyan dictator. What NATO purported to do was not only oblivious to Libya’s sovereignty, it was unmistakably a deliberate and dramatic extension of the authorized mission that understandably infuriated the autocrats in Moscow. A case could certainly have been made that in order to protect the Libyan people it was necessary to rid the country of the Qaddafi regime, but such an argument was never developed in the Security Council debate, and would never have been accepted. Against such a background, the wide gap between what was approved by the UN Security Council vote and what was done in breach of the mandate was perceived as a betrayal of trust in the setting of the Security Council, particularly by those five governments opposed to issuing a broader writ for the intervention, governments that had been deceptively induced to abstain on the ground that the UN authorization of force was limited to a single one-off protective, emergency mission.

 

            Global diplomacy being what it is and was, there should be no surprise, and certainly no condescending self-righteous lectures delivered by Western diplomats, in reaction to the rejectionist postures adopted by Russia and China throughout the Syrian crisis. Of course, two wrongs hardly ever make a right, and do not here. NATO’s flagrant abuse of the UN mandate for Libya should certainly not be redressed at the expense of the Syrian people. In this respect, it is lamentable that those who shape policy in Moscow and Beijing are displaying indifference to the severity of massive crimes of humanity, principally perpetrated by the Assad government, as well as to the catastrophic national and regional effects of a continuing large-scale civil war in Syria. The unfolding Syrian tragedy, already resulting in more than 60,000 confirmed deaths, one million refugees, as many as 3 million internally displaced, a raging famine and daily hardships and hazards for most of the population, and widespread urban devastation, seems almost certain to continue in coming months. There exists even a distinct possibility of an intensification of violence as a deciding battle for control of Damascus gets underway in a major way.  Minimally responsible behavior by every leading governments at the UN would under such circumstances entail at the very least a shared and credible willingness to forego geopolitical posturing, and exert all possible pressure to bring the violence to an end.

 

            Some suggest that an effect of this geopolitical gridlock at the UN is causing many Syrians to sacrifice their lives and put the very existence of their country in jeopardy.  This kind of ‘compensation’ for NATO’s ultra virus behavior in Libya is morally unacceptable and politically imprudent. At the same time it is hardly reasonable to assume that the UN could have ended the Syrian strife in an appropriate way if the Security Council had been able to speak with one voice. It both overestimates the capabilities of the UN and under appreciates the complexity of the Syrian struggle. Under these circumstances it is also diversionary to offload the frustrations associated with not being able to do anything effective to help the rebel forces win quickly or to impose a ceasefire and political process on the stubborn insistence by Russia and China that a solution for Syria must not be based on throwing Assad under the bus.

 

            The Syrian conflict seems best interpreted as a matter of life or death not only for the ruling regime, but for the entire Alawite community (estimated to be 12% of the Syrian population of about 23 million), along with their support among Syria’s other large minorities (Christian 10%, Druze 3%), and a sizable chunk of the urban business world that fears more what is likely to follow Assad than Assad himself. Given these conditions there is little reason to assume that a unified posture among the permanent members of the Security Council would at any stage in the violent months have had any realistic prospect of bringing the Syrian parties to drop their weapons and agree to risk a compromise. The origins of the crossover from militant anti-regime demonstrations to armed insurgency is most convincingly traced back to the use of live ammunition by the governing authorities and the armed forces against demonstrators in the city of Daraa from March 15, 2012 onwards, resulting in several deaths. Many in the streets of Daraa were arrested, with confirmed reports of torture and summary execution, and from this point forward there has been no credible turning away from violence by either side. Kofi Annan, who resigned as Special Envoy for the UN/Arab League

In late January 2013 indicated his displeasure with both external actors, criticizing Washington for its insistence that any political transition in Syria must be preceded by the removal of Bashar al-Assad from power, a precondition that seems predicated on an insurgent victory rather than working for a negotiated solution.  

           

            Without greater diplomatic pressure from both geopolitical proxies, the war in Syria is likely to go on and one with disastrous results. There has never been a serious willingness to solve the problems of Syria by an American-led attack in the style of Iraq 2003. For one thing, an effective intervention and occupation in a country the size of Syria, especially if both sides have significant levels of support as they continue to have, would be costly in lives and resources, uncertain in its overall effects on the internal balance of forces, and involve an international commitment that might last more than a decade. Especially in light of Western experiences in Iraq and Afghanistan, neither Washington nor Europe, has the political will to undertake such an open ended mission, especially when the perceived strategic interests are ambiguous and the political outcome is in doubt. Besides, 9/11 has receded in relevance, although still insufficiently, and the Obama foreign policy, while being far too militaristic, is much less so than during the presidency of George W. Bush.

           

            Another approach would be to press harder for an insurgent victory by tightening sanctions on Syria or combining a weapons embargo on the regime with the supply of weapons to the opposition. This also seems difficult to pull off, and highly unlikely to bring about a positive outcome even if feasible. It is difficult to manage such an orchestration of the conflict in a manner that is effective, especially when there are strong proxy supporters on each side. Furthermore, despite much external political encouragement, especially by Turkey, the anti-Assad forces have been unable to generate any kind of leadership that is widely acknowledged either internally or externally, nor has the opposition been able to project a shared vision of a post-Assad Syria. The opposition is clearly split between secular and Islamist orientations, and this heightens the sense of not knowing what to expect what is being called ‘the day after.’ We have no reliable way of knowing whether escalating assistance to the rebels would be effective, and if so, what sort of governing process would emerge in Syria, and to what extent it would be abusive toward those who directly and indirectly sided with the government during the struggle.

 

            Under such circumstances seeking a ceasefire and negotiations between the parties still seems like the most sensible alternative among an array of bad options. This kind of emphasis has guided the diplomatic efforts of the UN/Arab League Special Envoys, first Kofi Annan, and now Lakhdar Brahimi, but so far producing only disillusionment. Neither side seems ready to abandon the battlefield, partly because of enmity and distrust, and partly because it still is unwilling to settle for anything less than victory. For diplomacy to have any chance of success would appear require both sides to entertain seriously the belief that a further continuation of the struggle is more threatening than ending it. Such a point has not been reached, and is not in sight.

 

           Despite the logic behind these failed efforts, to continue to pin hopes on this passive diplomacy under UN auspices seems problematic.  It grants the governing Assad regime time and space to continue to use means at its disposal to destroy its internal enemy, relying on high technology weaponry and indiscriminate tactics on a vast scale that are killing and terrifying far more civilians than combatants. Bombarding residential neighborhoods in Syrian cities with modern aircraft and artillery makes the survival of the regime appear far more significant for the rulers than is any commitment to the security and wellbeing of the Syrian people and even the survival of the country as a viable whole. It is deeply delegitimizing, and is generating a growing chorus of demands for indicting the Assad leadership for international crimes even while the civil war rages on. This criminal behavior expresses such an acute collective alienation on the part of the Damascus leadership as to forfeit the normal rights enjoyed by a territorial sovereign. These normal rights include the option of using force in accord with international humanitarian law to suppress an internal uprising or insurgency, but such rights do not extend to the commission of genocidal crimes of the sort attributable to the Assad regime in recent months. Although it must be admitted that the picture is complicated by the realization that not all of the criminal wrongdoing is on the regime side, yet the great preponderance is. The rebel forces, to be sure, are guilty of several disturbing atrocities. This is sad and unfortunate, as well as politically confusing so far as taking sides is concerned.  Overall, it adds to the victimization of the people of Syria that is reaching catastrophic proportions because it makes more difficult the mobilization of international support for concerted action.

 

           

            Essentially, the world shamelessly watches the Syrian debacle in stunned silence, but it is fair to ask what could be done that is not being done? So far no credible pro-active international scenario has emerged. There are sensible suggestions for establishing local ceasefires in the considerable areas in the countryside under the control of rebel forces, for supplying food and medical supplies to the population by means of protected ‘humanitarian corridors,’ and for taking steps to improve the woeful lot of Syrian refugees currently facing inadequate accommodations and unacceptable hardships in Lebanon and Jordan. Such steps should be taken, but are unlikely to hasten or alter outcome of the conflict. Can more be done?

 

            I would further recommend a broad policy of support for civil society activists within Syria and outside who are dedicated to a democratic inclusive governing process that affirms human rights for all, and promises constitutional arrangements that will privilege no one ethnic or religious identity and will give priority to the protection of minorities. There are encouraging efforts underway by networks of Syrian activists, working mainly from Washington and Istanbul, to project such a vision as a program in the form of a Freedom Charter that aspires to establish a common platform for a future beneficial for all of Syria’s people. The odds of success for this endeavor of politics from below seem remote at present for these activist undertakings, but they deserve our support and confidence. As often is the case when normal politics are paralyzed, the only solution for a tragic encounter appears to be utopian until it somehow materializes and becomes history. This dynamic was illustrated by the benign unraveling of South African apartheid in the early 1990s against all odds, and in opposition to a consensus among experts that expected emancipation of the victims of apartheid to come, if at all, only through success in a long and bloody war.

 

            Another initiative that could be taken, with great positive potential, but against the grain of current of Western, especially American, geopolitics, would be to take the Iran war option off the table.  Such a step would almost certainly have major tension-reducing effects in relation to regional diplomacy, and would be a desirable initiative to take quite independent of the Syrian conflict. The best way to do this would be to join with other governments in the region, including Iran, to sponsor a comprehensive security framework for the Middle East that features a nuclear weapons free zone, with an insistence that Israel join in the process. Of course, for the United States to advocate such moves would be to shake the foundations of its unconditional endorsement of whatever Israel favors and does, and yet it would seem over time even to be of greater benefit to Israeli security than an engagement in a permanent struggle to maintain Israeli military dominance in the region while denying the right of self-determination to the Palestinian people. If American leaders could finally bring themselves to serve the national interest of the United States by acting as if the peace and security of Israel can only be achieved if the rights of the Palestinian people under international law are finally realized it would have many likely positive effects for the Middle East and beyond.  As matters now stand, the dismal situation in the region is underscored by the degree to which such prudent proposals remain in the domain of the unthinkable, and are kept outside the disciplined boundaries of ‘responsible debate.’

 

            If the imagination of the political is limited to the ‘art of the possible’ then constructive responses to the Syrian tragedy seem all but foreclosed.  Only what appears to be currently implausible has any prospect of providing the Syrian people and their nation with a hopeful future, and we need the moral fortitude to engage with what we believe is right even if we cannot demonstrate that it will prevail in the end.

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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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UNESCO Membership and Palestinian Self-Determination

3 Nov


 It may not ease the daily pain of occupation and blockade or the endless anguish of refugee status and exile or the continual humiliations of discrimination and second class citizenship, but the admission of Palestine to membership in UNESCO is for so many reasons a step forward in the long march of the Palestinian people toward the dignity of sunlight! This notable event in Paris illuminates one path that leads to self-determination, but also brings into the open some of the most formidable obstacles that must be cleared away if further progress is to be made.

 

The simple arithmetic of the UNESCO vote, 107 in favor, 14 opposed, 52 abstentions, and 21 absent fails to tell the story of how one sidedness of the vote. Toting up the for and against votes obscures the wicked arm twisting, otherwise known as geopolitics, that induced such marginal political entities as Samoa, Solomon Islands, Palau, and Vanuatu to stand against the weight of global opinion and international morality by making a meaningless gesture of opposition to the Palestinian application for admission as member to UNESCO. This is not meant as an insult to such small states, but is intended to lament their vulnerability to powerful American pressures hoping to distort the perception of world public opinion by making the admission issue seem more contested than it is.

 

Such a distortion makes a minor mockery of the prevailing pretension that governments are able to offer adequate representation to the peoples of the world. It also illustrates the degree to which formal political independence may obscure a condition of de facto dependence as well as makes plain that voting patterns within the United Nations System should never be confused with aspirations to establish at some future time a functioning global democracy in substance as well as procedure. As an aside, geopolitical maneuvers consistently compromise the electoral process within the UN System, especially in the Security Council, and to a lesser extent, in the General Assembly and other UN institutional arenas. This actuality of the UN as a political actor demonstrates the urgency and desirability of establishing a global peoples parliament that would at least provide a second voice whenever a UN policy debate touches on issues of human concern.

 

What may be the most impressive aspect of the UNESCO vote is that despite a vigorous U.S. diplomacy of threat and intimidation, the Palestinian application for membership easily carried the day. There was enough adherence to principle by enough states to provide the necessary 2/3rds vote even in the face of this craven American diplomatic effort to please Israel, an effort reinforced by punitive action in the form of refusing further financial support for UNESCO, which amounts to some $60 million for the current year, and in the future, 22% of the organization’s annual budget of $643 million in 2010-11 (which is projected as $653 million for 2011-12). Actually this withholding of funds is an American policy embedded in ambiguous legislation that derives from the early 1990s, and so for once a preposterously the pro-Israeli action cannot be blamed on the present Congress, although it seems obvious that Congress would have taken the same steps or worse if given the chance. The leaders of both parties have made no secret of their desire to make the most of this new opportunity to draw fresh UN blood. Indeed rabid pro-Israel members of Congress are already showboating their readiness to do far more  than the law requires so as to manifest the extreme character of their devotion to Israel.  This unseemly punishment of UNESCO (and indirectly, the peoples of the world) for taking a principled stand expresses a more sinister attitude than merely the pique of being a poor loser. The American defunding move, taken without even a few words of regret, amounts to a totally irresponsible willingness to damage the indispensable work of cultural and societal cooperation on international levels just to make the childish point that there will be a price tag attached whenever the wishes of Israel suffer a setback at the UN, with the United States ready always to serve as the dutiful enforcement agent.

 

This sorry train of events gives governments of other states an excellent opportunity to demonstrate their commitment to human wellbeing and greater independence in global policy arenas by quickly acting to restore confidence in the UN. One way to do this is to overcome this unanticipated UNESCO budget deficit with a series of voluntary contributions to the UNESCO budget. What would deliver an instructive message to Washington and Tel Aviv would be a special funding campaign on behalf of UNESCO that generated more money than is being withheld. It seems an appropriate time to demonstrate once and for all that such strong arm fiscal tactics are no longer acceptable and often backfire in the post-colonial world. Such an outcome would also confirm that the geopolitical tectonic plates of world order have shifted in such a way as to give increasing prominence to such countries as China, India, Russia, Brazil, and South Africa all of whom voted to admit Palestine to UNESCO. At least for the moment in this limited setting we might get a glimpse of a genuine ‘new world order’! The Security Council has proved unable and unwilling so far to change its two-tier structure to accommodate these shifts in the geopolitical landscape, but these countries still kept on the sidelines of UN activities can reinvent world politics by becoming more active and autonomous players on the global stage. It is not necessary to wait any longer for France and Britain to read the tea leaves of their decline accurately enough to acknowledge that their role on the global stage has permanently diminished, and if these governments want an effective UN it is past time for them to step aside and let the rising non-West states run the show for a while, starting with giving up their claim to permanent seats at the UNSC. Admittedly, I am indulging some wishful thinking. I have no illusion that these ex-colonial powers will act responsibly. International history instructs us that most states would rather see world order collapse than to defuse a governance crisis by giving up entrenched, yet outmoded, privileges.

 

Perhaps, more enduring than the UNESCO vote itself is the reinforced image of the wildly inappropriate role given to the United States to act as intermediary and peacemaker in seeking to resolve the underlying conflict and ensure the realization of Palestinian rights that have been so cruelly denied for more than six decades. Observers as diverse as Michel Rocard, the former Socialist Party Prime Minister of France, and Mouin Rabbani, a widely respected Palestinian analyst of the conflict, each reach a common conclusion that this discordant American campaign to thwart an elemental Palestinian quest for legal recognition and political participation, establishes beyond all reasonable doubt, although such a reality should long have been apparent to even the most casual serious observer of the conflict, that the time has come to remove the United States from its presiding role with respect to the resolution of this conflict. It has always verged on the absurd to expect justice, or even fairness, to flow from a diplomatic framework in which the avowed and extremely partisan ally of the dominant party puts itself forward as ‘the honest broker’ in negotiations in a setting where the weaker side is subject to military rule, exile, and the continuous violation of its basic rights. To have given credibility to this tripartite charade for so many years is itself a commentary on the weakness of the Palestinian position, and the importance at this stage that Palestinian representative insist henceforth on a balanced international framework as a precondition for any future negotiations. Without such balance there is not the slightest prospect of producing a sustainable and just peace through diplomacy. Regrettably the PLO and the Palestinian Authority have yet to repudiate the Oslo era of phony peace negotiations, and astonishingly seem even now to be ready to resume talks if only Israel announces a temporary and partial freeze on settlement expansion. It is disappointing that the Palestinian Authority/PLO still is willing to endow this negotiating process with potential credibilit.

 Yet to find a new framework does not mean following the incredibly Orientalist prescription proposed by Rocard: “The Americans have lost their moral right to leadership in resolving the Israel-Palestine conflict. It is time for Europe to step into the fray.”  As if Europe had recently demonstrated its capacity for rendering justice because it carried out the NATO intervention in Libya! As if the colonial heritage had been suddenly rebranded as a positive credential! As if the Americans ever had a ‘moral right’ to resolve this conflict that was only now lost in the UNESCO voting chamber! It is not clear how a new diplomacy for the conflict that is finally responsive to the situation of the parties, the region, and the world should be structured, but it must reflect at the very least the new realities of an emergent multipolarity skewed toward the non-West. To be provocative for once, maybe Turkey, Brazil, Egypt, and India should now constitute themselves as a more legitimate quartet than that horribly discredited quartet composed of the United States, the EU, Russia, and the UN, and assisted by its Special Envoy, the talented Mr. Blair.

 

Returning to the UNESCO controversy, it is worth noting the words of denunciation used by Victoria Nuland, the designated State Department spokesperson. She described the vote as “regrettable, premature” contending that it “undermines our shared goal of a comprehensive, just and lasting peace in the Middle East.” Even Orwell might be dazed by such an archly diversionary formulation. Why we may ask was the vote regrettable and premature, and not the reverse: welcome and overdue? After all to work for the preservation of religious and other world heritage sites within the halls of UNESCO or to promote safe sanitation and clean drinking water for the poorest countries is hardly subversive of global stability by any sane reckoning. After enduring occupation for more than 44 years, it qualifies as comedic to insist that Palestine must not yet come in from the cold because such an entry would be ‘premature.’ And how can it be claimed that Palestine participation within the UN System ‘undermines’ the ‘shared goal’ of regional peace in the Middle East? The only answer that makes any sense of the American position is say that whatever Israel says is so is so, and the United States will act accordingly, that is, do whatever Israel wants it to do in the global arena. Such kneejerk geopolitics is not only contrary to elementary considerations of law and justice, it is also monumentally irrational and self-defeating from the perspective of the national wellbeing of the United States and future peace in the region and beyond. It also sets a horrible precedent by the absence of any ‘decent respect for the opinions of mankind.’

 

What in the end may be most troubling about this incident is the degree that it confirms a growing impression that both the United States and Israel have lost the capacity to serve their own security interests and rationally promote the wellbeing of their own people. This is serious enough with respect to the damage done to their societies by such maladroit behavior, but recognizing that these two military heavyweights who both possess arsenals of nuclear weaponry are well on their way to becoming rogue states is frightening to contemplate. These are two of the few governments in the current world that continue to rest their future security almost exclusively on an outmoded reliance on hard power investments in military capabilities and accompanying aggressive ideas about the effectiveness of military solutions. The implications of this approach are potentially catastrophic for the region and the world. When Israel alienates Turkey, its only surviving friend in the Middle East, and then refuses to take the minimal steps to heal the wounds caused by its recklessly violent behavior, one has to conclude that the Israeli sense of reality has fallen on hard times! And when Israel pushes the United States to lose this much social capital on the global stage by standing up for its defiance of international law as in relation to rejecting the recommendations of the Goldstone Report or refusing to censure the expansion of its unlawful settlements or the collective punishment of Gaza, there is no longer much doubt that Israeli foreign policy is driven by domestic extremism that then successfully solicits Washington for ill-advised implementation. And now, this furious beating of war drums in relation to Iran provides tangible confirmation that these severe indictments of American and Israeli behavior need to be taken seriously before it is too late!  

 

The situation in the United States is parallel. Many excuse, or at least explain, America’s unconditionally irrational support for Israel as produced by the fearsome leverage exerted by AIPAC over electoral politics in the country as associated with the political activities of the Congress and rationalized by conservative think tanks. But what this explanation says is that the United States Government, like Israel, has also lost the capacity to pursue a sensible foreign policy in a crucial region of the world that reflects its own national interests, much less provide leadership based on a wider commitment to a stable and just Middle East. The Arab Spring offered the United States a second chance so to speak to overcome its long embrace of vicious autocratic rule in the region, but this opportunity is being senselessly squandered on the altar of subservience to the vindictive whims, expansionist visions, and paranoid fears of the Netanyahu/Lieberman governing coalition in Israel.

 

Welcoming Palestine to UNESCO is a day of celebration and vindication for the Palestinian people, and a political victory for PA/PLO leadership, but it is also a day when all of us should reflect upon the wider Palestinian tragedy and struggle, and encourage further steps forward, including membership in such other components of the international system as the World Health Organization, the International Criminal Court, UNICEF and the International Court of Justice. If the U.S. Government were to continue its defunding tactic as Palestine gained admission after admission, its influence and reputation in the region and the global stage would certainly take a nosedive. Yet the United States is likely to be rescued not by intelligently backing off, but by the degree to which the PA/PLO seems ready to settle for UNESCO, and save other initiatives for some future season, apparently unwilling or unable to cope with further defunding as complemented by Israel’s withholding from Ramallah tax revenues needed to pay the salaries of its West Bank bureaucracy. 

 

UNESCO has given a momentary respite to those who were completely disillusioned by what to expect from the UN or the system of states when it comes to Palestinian aspirations (remember all those unimplemented resolutions passed by overwhelming majorities in the General Assembly and then never acted upon), and instead put their hope and efforts into the initiatives of global civil society, especially the growing BDS campaign and efforts to break open the Gaza blockade by continuing to send ships carrying humanitarian goods to the Gazans. Now is certainly not the time to shift attention away from such grassroots initiatives, but it does suggest that there are many symbolic battlefields in the ongoing legitimacy war being waged for Palestinian self-determination, and several of the more promising opportunities are situated within the network of institutions comprising the United Nations. Of course, becoming a member of UNESCO is the beginning, not the end, of making use of these institutional affiliations to advance the struggle of Palestine to realize the rights of all of its people, those under occupation, those in refugee camps in neighboring countries, and those in the Palestinian diaspora. But it is likely to be also the temporary end, given PA/PLO timidity and the financial blackmail to which it is being subjected.

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Libya After Muammar el-Qaddafi’s Execution

30 Oct

 

The death of the despised despot who ruled Libya for forty-two years naturally produced celebrations throughout the country. Muammar el-Qaddafi’s end was bloody and vindictive, but we should remember that his rants against his own people—and his violent repression of what was initially a peaceful uprising—invited a harsh popular response. Recalling W.H. Auden’s famous line, “Those to whom evil is done/do evil in return,” it is almost inevitable in the absence of strong moral and political discipline, which was not present, that when a leader refers to his opponents as “rats” and pledges to hunt them down house by house, the stage is set for the unacceptable kind of retribution that played out recently in Sirte where NATO air strikes leveled the city and anti-Qaddafi forces executed at least 53 Qaddafi loyalists. It is an ominous warning sign for the future that this massacre at Sirte along with the execution and burial of Qaddafi should have exhibited such vengeful and undisciplined behavior, raising renewed doubts about the character and approach of Transitional National Council leadership, although there still exist possibilities for redeeming this loss of confidence.

 

These unfortunate happenings make overall accountability for war crimes an early test of whether the TNC will yet prove capable of managing the formation of a political and morally acceptable governmental structure. Will the TNC undertake investigations of the alleged wrongdoings of its own forces in a manner that corresponds with international standards, or will such inquiry be avoided because such an international confidence-raising process would clearly internal factionalism in which any finger-pointing will seem like an encouragement of ethnic and tribal conflict? Will the TNC cooperate with the International Criminal Court to ensure that those charged with war crimes in the service of the Qaddafi regime will receive a fair trial? At the same time there is reason to view with a cynical eye the demands of self-righteous NGOs in the West that seem to expect from Libya what the liberal democratic regimes of the West refuse to do. It should be appreciated in this regard that the United States

goes to extraordinary lengths to exempt its soldiers and leaders from potential criminal accountability while it pushes hard to have its enemies subject to the harsh severity of international criminal law. Double standards pervade. As with so much that involves North Africa after the glories of the Arab Awakening, all roads to the future seem destined to have many twists and turns, as well as treacherous potholes.

 

 

The leadership vacuum in Libya is not likely to be filled anytime

soon. We don’t know whether tribal or regional loyalties will emerge as primary political identities now that the great unifier—hostility to

the Qaddafi regime—can no longer suppress antagonistic goals and ambitions. The TNC lent international credibility to the anti-Qaddafi forces, but much of the fighting in the last stages of the struggle was under the control of semiautonomous militia commanders that seemed a law unto themselves. We will soon learn whether the TNC can sufficiently represent the collective will of Libyans during the interim process that is needed before establishing an elected government able to draft a new constitution. Its first attempt to establish a new unity was premised on a call to implement political Islam. The Chairman of the TNC, Mustafa Adbel-Jalil, made the following strong assertion along these lines at the victory celebration in Benghazi: “We are an Islamic country. We take the Islamic religion

as the core of our new government. The constitution will be based on our Islamic religion.”

 

Some pessimists have contended that Libya’s future is prefigured by

the chaotic violence that befell Somalia after the overthrow of

dictator Mohamed Siad Barre in 1991, a tragic set of national circumstances that have persisted ever since. But on a more hopeful note, it is worth observing that the fall of Qaddafi—unlike that of Hosni Mubarak, whose overthrow has not yet altered

the power structure in Egypt—gives the victorious Libyan opposition a

seemingly clean slate that could be more receptive to genuine democratic nation-building if such a political will emerges. Libyans have given themselves this opportunity that rarely comes along in history to achieve a real revolutionary transformation of their political, economic and cultural life. Thus, it could turn out paradoxically to be helpful, rather than an impediment, to observe that Qaddafi left no institutional infrastructure behind upon which to construct a modern state. What has happened in Libya, unlike Egypt, is for better or worse a total regime change.

 

Libya starts out on this new path with some additional major advantages, most obviously oil and a relatively

small population. An important test in the months ahead will be the

extent to which the new leadership restores normalcy to the economy without mortgaging the national wealth to foreign predators, corporate, financial, and governmental. Of course, in the background is the sense that NATO was integral to the overthrow of Qaddafi and may expect more than a thank-you note. Already there are media murmurs about great business opportunities for the West in the new Libya, including the challenge of rebuilding what NATO destroyed, which seems like a disturbing vindication of Naomi Klein’s groundbreaking book, The Shock Docrtrine, a devastating critique of the contemporary logic of the neoliberal world economy.

 

Considering Libyan experience from an international perspective raises several additional concerns. The public appraisal of NATO’s intervention will be mainly shaped by whether Libya emerges as a stable, democratic, and equitable nation. This will not be knowable for years, but aspects of the intervention already make Libya a troubling precedent no matter what the future of the country. The UN Security Council, which authorized the use of force by way of an application of the recently affirmed principle known as “responsibility to protect” or R2P. The five abstaining states were either duped or complacent,

and likely both. The authorizing Security Council Resolution 1973 was broadly framed by reference to establishing a no-fly zone by all necessary means, with the justification for force at the time associated with protecting the population of Benghazi from an imminent massacre. Yet this restricted mandate was disregarded almost from the outset. NATO forces were obviously far less committed to their assigned protective role than to making sure that the balance of forces in the struggle for the future of Libya would be tipped in the direction of the insurrection. If this intention had been clear at the outset, it is almost certain that Russia and China would have vetoed the UN resolution. During the debate these two states expressed their grave misgivings and suspicions about encroaching on Libya’s sovereignty, and were joined in the expression of such doubts by India, Brazil and Germany who also came to abstaining when it came to voting in the Security Council. If NATO’s broader intention was manifest Chinese and Russian vetoes were a virtual certainty.

 

Of course, there was a dilemma present. If NATO had disclosed its goals there would have been no UNSC authorization, and the Benghazi massacre would have appeared to be a humanitarian catastrophe invited by UN inaction. If NATO had circumscribed its intervention in the manner agreed upon, then a lengthy civil war might have followed, and also brought about a humanitarian disaster for the people of Libya. The perils of intervention have to be balanced against the perils of noninternvention in each instance, but if some tasks of global governance entrusted to the United Nations are to evolve in a constitutionally responsible way, then the minimum to expect is an honest disclosure of intent by member states pushing for intervention, a vigilant monitoring by the authorizing UN organ of any use of force, and a scrupulous regard by implementing actors for the limits imposed on a mandate to use force.

 

From these perspectives, it is extremely disturbing that a restricted UN mandate was totally ignored, and that the Security Council did not even bother reconsider the original mandate or censure NATO for unilaterally expanding the scope and nature of its military role. By ignoring the UN’s limits, NATO may have diminished the prospects for future legitimate uses of the R2P principle, and whether this is good or bad is difficult to say in the abstract.

 

There are several dimensions of this concern. To begin with, the UN Charter was drafted to minimize the legitimate role of force in world politics, making war a last resort, and then only in strict circumstances of self-defense. To this is added the secondary undertaking of the Charter, which is to assure that the UN itself is bound by Article 2(7) to refrain from intervening in matters essentially within the domestic jurisdiction of states unless under exceptional conditions it is decided as necessary to maintain international peace and security. The NATO intervention seems impossible to reconcile with either of these two core principles of the UN Charter, which is the constitutional framework that is supposed to guide the behavior of the UN. It is true that these principles have been eroded by practice since their enactment in 1945. Human rights has become such a strong dimension of world order as to take precedence over sovereign rights in certain situations of extreme abuse, which helps explain the rise of the R2P norm over the last decade, especially in the aftermath of the controversial NATO Kosovo War of 1999. Despite these developments the Charter still provides the operative guidelines for uses of force. In this regard, it might have been legally and morally acceptable, given the circumstance prevailing in Libya when the authorizing resolution was adopted on March 17, 2011, to mount a narrowly conceived protective mission—although it is worth noting that even at the moment of approval, there was widespread skepticism at the UN, either because some members distrusted the pro-interventionist reassurances of the United States and its European partners or anticipated that pressures on the ground would likely produce mission creep as the locus of the violence shifted beyond Benghazi.

 

The Libya experience raises deeper questions about reliance on the R2P norm as a basis of principled UN action on behalf of a vulnerable people endangered by abusive behavior of their own government. Some doubts already existed about the selectivity of the Libyan application of the norm, especially given the UN’s failure to lift a finger on behalf of the beleaguered civilian population of Gaza, which has suffered under a long and punitive Israeli blockade, with the UN even supporting the Israeli position when the blockade was being challenged by civil society activists seeking to deliver humanitarian assistance directly to the people of Gaza. But aside from this glaring example of double standards, there is also the widespread sense that in Libya, R2P was quickly, and without serious debate, transformed into an opportunity to destroy and oust, with an as yet undetermined array of harmful consequences.

 

If such protective undertakings are to achieve credibility in the

future, they must become detached from geopolitics and operationalized according to a robust regime of law that treats equals equally. Perhaps the most practical mechanism for reaching these presently unattainable goals would be the establishment of a UN Emergency Force that could only be activated by a two-thirds vote in either the Security Council or General Assembly, and not ever be subject to veto. Such a force would need to be funded independently of national governments, possibly by imposing a tax on international air flights or currency transactions. However sensible, such an arrangement will not be easy to bring into being, precisely because its existence would threaten current geopolitical prerogatives that depend on self-interested motivations of leading states. And even this recommended UNEF framework could be manipulated. But at least if it existed there would be a greater prospect that authorizing guidelines for humanitarian uses of force under UN auspices would be respected, that compliance would be supervised, and that more consistent practice would replace the current brand of humanitarian diplomacy that is deformed by the prevalence of double standards.

 

Against such a background, we can only wish that the Libyans will defy pessimistic expectations, and manage to establish a viable and independent democratic state that is respectful of human rights and energetic in its efforts at reconstruction, without becoming overly

hospitable to foreign investors and companies. After such a

devastating air campaign of some 20,000 sorties, the NATO countries should have the decency to stand aside and respect the Libyans’ inalienable right of self-determination. It is a sad commentary on the global setting that to set forth these hopes for the future of Libya and its long suffering population seems like an utopian indulgence!

 

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Preliminary Libyan Scorecard: Acting Beyond the UN Mandate

6 Sep


            In Western circles of influential opinion, the outcome of the NATO intervention in Libya has already been pronounced ‘a victory’ from several points of view: as a military success that achieved its main goals set at acceptable costs, as a moral success that averted a humanitarian catastrophe, and as political success the creation of an opportunity for freedoom and constitutionalism on behalf of a long oppressed people. This is one of those rare results in an international conflict situation that seems to please both conservatives and liberals. Conservatives because it was a show of force that reaffirmed Western primacy based on military power. Liberals because force was used with UN backing in accordance with international law and in furtherance of human rights and liberal values.

 

Qaddafi and his loyalists are apparently a spent force, and the future of Libya now becomes a work in progress without any clear understanding of who will call the shots from now on. Will it be the Libyan victors in the war now battling among themselves for the control of the country? Will it be their NATO minders hiding behind the scenes? Will it be the NATO representatives doing the bidding of the oil companies and the various corporate and financial interests that make no secret of seeking a robust profit-making stake in Libya’s future? Or will it be some combination of these influences, more or less harmoniously collaborating? And most relevant of all, will this process be seen as having the claimed liberating impact on the lives and destinies of the Libyan people? It is far too early to pronounce on such momentous issues, although sitting on the sidelines one can only hope and pray for the best for a country substantially destroyed by external forces. Even before the dust of the original conflict settles it is not too soon to raise some skeptical questions about the unconditional enthusiasm in mainstream Western circles for what has been done and what it portends for the future of UN peacekeeping.

 

            What has transpired since March when the UN Security Council gave its go ahead for the use of force to protect civilians in Libya should never have become an occasion for cheering despite the military and political outcome of the intervention. This unfortunate triumphal spirit was clearly voiced by the normally critically sensitive Roger Cohen. Writing in the New York Times Cohen insists that the Libyan intervention should be viewed as a historically momentous discharge of the global moral responsibility that somehow rests on the shoulders of post-colonial pro-active leaders in the West:  “..the idea that the West must at times be prepared to fight for its values against barbarism is the best hope for a 21sr century less cruel than the 20th .” This rather extraordinary claim cannot be tested by reference to Libya alone, although even narrowly conceived the grounds for such confidence in Western uses of force in the global south seems stunningly ahistorical. But if the net is enlarged, as it must be, to encompass the spectrum of recent interventions under Western auspices that include Vietnam, Iraq, and Afghanistan the self-absorbed gaze of Cohen seems like a dangerously misguided form of advocacy relating to the use of force in international relations. Looking at this broader experience of Western intervention makes one squirm uncomfortably in reaction to the grandiose claim that the willingness of leading Western countries to police the world is humanity’s ‘best hope’ for the future. Cohen is not timid about insisting that the Libya operation up to this point provides a positive model for the future : “The intervention has been done right—with the legality of strong backing, full support of America’s European allies, and quiet arming of the rebels.” A contrast with Iraq is drawn, presumably, in contrast, an intervention ‘done wrong.’

 

            There is a heavy dose of implicit paternalism, condescension, and passé consciousness, not to mention wishful thinking, present if the West is to be identified as the best hope for the future just because it managed to pull off this Libyan intervention, that is, even assuming that the post-Qaddafi experience in the country is not too disillusioning in this one set of circumstances. What about putting the failed interventions into the balance, and then deciding whether it is helpful or not to encourage the West, which means mainly the United States, to take on this protective role for the rest of the world? I seem to remember not that long ago such self-empowering phrases as ‘white man’s burden’ and ‘civilizing mission’ being used by colonial apologists with a straight face. The West has quite a record of barbarism of its own, both within its geographic confines and in its encounters with others.  It seems arbitrary and contentious to situate barbarism geographically, and it certainly seems strange to think that the long exploited and abused non-West generates a new breed of barbarians at the gates.

 

            And let us not be to quick to heap praise on this Libyan model? It is certainly premature to conclude that it has been a success before acquiring a better sense of whether the winners can avoid a new cycle of strife and bloodshed, and stick together in a Libya without the benefit of Qaddafi as the common enemy. Or if they do, can they embark upon a development path that benefits the Libyan people and not primarily the oil companies and foreign construction firms. Any credible assessment of the Libyan intervention must at least wait and see if the new leaders are able to avoid the authoritarian temptation to secure their power and privilege within the inflamed political atmosphere of the country. The majority of the Libyan people undoubtedly have strong expectations that their human rights will now be upheld and that an equitable economic order will soon be established that benefits the population as a whole, and not the tiny elite that sits on the top of the national pyramid. These are expectations that have yet to be satisfied anywhere in the region. The challenge is immense, and perhaps is beyond even the imagination and aspirations of the new leaders, posing a challenge that exceeds their capabilities and will.

 

            Yet such worries are not just about the uncertain future of Libya. Even if, against the odds, Libya turns out to be the success story already proclaimed, there are still many reasons to be concerned about the Libyan intervention serving as a precedent for the future. These concerns relating to international law, to the proper role for the UN, and to the shaping of a just world order have been largely ignored in the public discussion of the Libyan intervention. In effect, once NATO helped the rebels enough to get rid of the Qaddafi regime, it has been treated as irrelevant to complain about aspects of the undertaking and such issues have been completely ignored by the media. In the rest of this blog I will try to explain why the Libyan intervention is far from providing future diplomats with an ideal model. I believe we should learn from the Libyan experience, and reject it as a precedent.

 

            As the World Court made clear in the Nicaragua decision of 1986, modern international law does not allow states to have recourse to force except when acting in self-defense against a substantial prior armed attack across its borders, and then only until the Security Council acts. The United Nations, normally the Security Council, but residually the General Assembly, has the authority to mandate the use of force under Chapter VII of the UN Charter on behalf of peace and security, including on the basis of UN evolving practice, for humanitarian ends under extreme circumstances of the sort that arguably existed in Libya during the latter stages of Qaddafi’s rule. This humanitarian extension of UN authority has been challenged as opening a loophole of indefinite dimensions that can be used to carry out a post-colonial imperialist agenda. Even granting that humanitarian ends should now be understood to have been legally incorporated into prevailing ideas of ‘international peace and security,’ a crucial further question exists as to whether the force used by NATO remained within the confines of what was authorized by the Security Council.

 

            The Security Council debate on authorization indicated some deep concerns on the part of important members at the time, including China, Russia, Brazil, India, and Germany, that formed the background of SC Resolution 1973, which in March 2011 set forth the guidelines for the intervention.This extensive resolution articulated the mission being authorized as that of protecting threatened Libyan civilians against violent atrocities that were allegedly being massively threatened by the Qaddafi government, with special reference at the time to an alleged imminent massacre of civilians trapped in the then besieged city of Benghazi. The debate emphasized the application of the norm of Responsibility to Protect (R2P) endorsed by the Security Council a few years ago that sought to allay fears about interventions by the West in the non-West by refraining from relying on the distrusted language of ‘humanitarian intervention’ and substituting a blander way of describing the undertaking as less of a challenge directed at the territorial supremacy of sovereign states and more in the nature of a protective undertaking reflecting human solidarity. The R2P norm relies on a rationale of protecting vulnerable peoples from rulers that violated basic human rights in a severe and systematic fashion.

 

            But once underway, the NATO operation unilaterally expanded and qualitatively shifted the mission as authorized, and almost immediately acted to help the rebels win the war and to make non-negotiable the dismantling of the Qaddafi regime. NATO made these moves without even attempting to explain that it was somehow still acting primarily to protect Libyan civilians. This was not just another instance of ‘mission creep’ as had occurred previously in UN peacekeeping operations (for instance, the Gulf War of 1991), but rather mission creep on steroids! It would have been possible during the Security Council debate to explain in a forthright manner what obviously must have been the real intentions all along of NATO. It would have been possible and respectful of the integrity of UN discourse to have made the attempt to convince the members of the Security Council that the only way the Libyan people could be protected was to help the rebels win the civil war and to be sure that Qaddafi was taken out of the picture. Presumably such forthrightness was avoided by the pro-interventionist states because it would almost certainly have turned several of the already reluctant abstaining five countries into negative votes, including in all likelihood, those of China and Russia that are permanent members whose votes have a veto effect, which in this case would have prevented the Security Council from reaching a decision. So the pro-interventionists admittedly faced a genuine dilemma: either dissemble as to the ends being pursued and obtain the legitimacy of limited advance authorization from the UN or reveal the real goals of the operation and be blocked by a veto from acting under UN auspices. If so blocked, then the further issue arises as to whether to intervene in the absence of a UN mandate.

 

A similar dilemma faced the intervening governments prior to the 1999 NATO’s Kosovo War. It was resolved by ignoring the legalities altogether, with NATO acting without any UNSC authorization. It was also a controversial precedent, and some blamed the Kosovo reliance on ‘a coalition of the willing’ or on a military alliance as providing a sufficient authorization, for the later claim of de facto authority to carry out the Iraq invasion without gaining prior UN approval. In both Kosovo and Iraq circumventing the UN’s legally prescribed role of deciding when to authorize non-defensive force on behalf of international peace and security was criticized, but the unlawfulness of the action led to no clear repudiation of either intervention after the fact, and rather highlighted the weakness of the UN. In both cases the UN after the fact acted to ratify the results of uses of force that clearly violated the UN Charter’s unconditional prohibition imposed on all uses of non-defensive force by member states. The rogue recourse to force was especially disturbing in Iraq as the attack legally amounted to a war of aggression, a crime against the peace in the language of the Nuremberg Judgment rendered in 1945 against surviving Nazi leaders after World War II.

 

            With regard to Libya, the culprits are not just the states that participated in this runaway operation, but the members of the Security Council  that abstained from supporting Resolution 1973 and the Secretary General of the United Nations have a special duty to make sure that the limits of authorization were being respected throughout the undertaking. It would seem to be a matter of constitutional responsibility for all members of the Security Council to ensure respect for the Charter’s core effort to prevent wars and seek peaceful resolution of conflicts. When exceptions are made to this generalized Charter prohibition on the use or threat of force it should always be strictly formulated, and then continuously monitored and interpreted, and if limits are exceeded, then the supervisory authority and responsibility of the Security Council should kick in as a matter of course, and in a spirit of upholding the autonomy and legitimacy of the United Nations. The Secretary General also has secondary responsibility to take appropriate steps to call the attention of the membership to such blatant departures from an authorizing resolution as an essential aspect of his role as custodian of the integrity of UN procedures and as the UN’s de facto ombudsman in relation to ensuring fidelity to the Charter. This allocation of responsibility seems more important when it is realized that the actions of the Security Council are not subject to judicial review. This controversial doctrine of judicial self-restraint within the UN System was ironically decided by the World Court in the 1992 Lockerbie case involving sanctions imposed on Libya in apparent violation of relevant treaty law. The majority of the judges concluded that whatever the Security Council decided needed to be treated as authoritative even if it went against international law, that the Security Council always had the last word in shaping UN policy even when it was acting unwisely or irresponsibly.

 

            Against this background, the abstaining states were also derelict at the outset by allowing a resolution of the Security Council involving the use of force to go forward considered that it contained such ambiguous and vague language as to raise a red flag as to the scope of the proposed authorization. Although Security Council Resolution 1973 did seem reasonably to anticipate mainly the establishment of a No Fly Zone and ancillary steps to make sure it would be effective, the proposed language of the resolution should have signaled the possibility that action beyond what was being mandated was contemplated by the NATO countries and would likely be undertaken. The notorious phrase ‘all necessary measures’ was present in the resolution, which was justified at the time as providing the enforcers with a desirable margin of flexibility in making sure that the No Fly Zone would render the needed protection to Libyan civilian.  Almost immediately once NATO launched its operations it became obvious that an entirely new and controversial mission was underway than what was acknowledged during the debate that preceded the adoption of 1973. The U.S. Supreme Court has often invalidated Congressional action as ‘void for vagueness,’ and this is something in the UN setting that Security Council members should have been prepared to do on their own in their role as final guardians of constitutional integrity in relation to war making under UN auspices. Given the Charter emphasis on war prevention and peaceful settlement of disputes, it should be standard practice that exceptional mandates to use force would be interpreted strictly to limit the departure from Charter goals and norms, but the UN record even before Libya has been disappointing, with geopolitics giving states a virtually unlimited discretion that international law purports to withhold.

 

            There is a further related issue internal to best practices within the United Nations itself. The Security Council acts in the area of peace and security on behalf of the entire international community and with representational authority for the whole membership of the Organization. The 177 countries not members of the Security Council should have confidence that this body will respect Charter guidelines and that there will be a close correspondence between what was authorized and what was done especially when force is authorized and sovereign rights are encroached upon. This correspondence was not present in the Libyan intervention, and this abuse of authority seems to have barely noticed in any official way, although acknowledged and even lamented in the corridors and delegates lounge of UN Headquarters in New York City.

 

This interpretative issue is not just a playground for international law specialists interested in jousting about technical matters of little real world relevance. Here the life and death of the peoples inhabiting the planet are directly at stake, as well as their political independence, the territorial integrity, and economic autonomy of their country. If the governments will not act to uphold agreed and fundamental limits on state violence, especially directed at vulnerable countries and peoples, then as citizens of the world, ‘we the peoples of the United Nations,’ as proclaimed by the Preamble to the Charter need to raise our voices. We have the residual responsibility to act on behalf of international law and morality when the UN falters or when states act beyond the law. Of course, this imperative does not imply a whitewash for tyrannical rule.

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Libya without Qaddafi: Decoding an Uncertain Future

26 Aug

 

            There is so much spin surrounding the Transitional National Council victory in Libya that it is difficult to interpret the outcome, and perhaps premature to do so at this point considering that the fighting continues and the African Union has withheld diplomatic recognition on principled grounds.  Almost everything about the future of Libya has been left unresolved, beyond the victory of the rebel forces as massively assisted by NATO air strikes as well as a variety of forms of covert assistance given to the anti-regime Libyans on the battlefield. Of course, in the foreground is the overthrow of a hated and abusive dictator who seemed more the outgrowth of the surrealist imagination than a normal political leader who managed to rule his country for more than 42 years, and raised the material standards of the Libyan people beyond that of other societies in the region.  

 

It does seem that the great majority of the Libyan people shared with others in the region a thirst for political freedom. The initial uprising seems definitely inspired by the Arab Spring.  But unlike the other populist challenges to authoritarian Arab states, in Libya the anti-regime forces abandoned nonviolent tactics at early stage and became an armed uprising. This raised some doubts and widespread fears about the onset of a civil war in  the country, but it also brought forth a variety of explanations about the murderous behavior of the regime that left its opponents no alternative.

 

Now with Qaddafi gone as leader, if not yet captured or killed, a new central concern emerges. What will the morning after bring to Libya? At the moment it is a matter of wildly divergent speculation as the unknowns are so predominant. There are a few observations that clarify the main alternatives. More favorably than in Egypt or Tunisia, this populist uprising possesses a revolutionary potential. It has seems poised to dismantle the old order altogether and start the work of building new structures of governance from the ground up. The fact that the TNC resisted many calls for reaching an accommodation or compromise with the Qaddafi regime gives the new leadership what appears to be a clean slate with which to enact a reform agenda that will be shaped to benefit the people of the country rather than foreign patrons. This opportunity contrasts with the messy morning after in Egypt and Tunisia where the remnants of the old order remain in place. In Cairo numerous demonstrators were sent to jail, and reportedly tortured, after new demonstrations were held in Tahrir Square led by those fearful that their political aspirations were being destroyed by the same old bureaucracy that had provided Mubarak with his oppressive structures of authority that made the country safe for neoliberal exploitation and unsafe for constitutional democracy.  Let’s hope that the TNC can sustain Libyan unity and commit itself to the building of a democratic constitutional order and an equitable economy step by step. It will not be easy as Libya has no constitutional experience with citizen participation, an independent judiciary, or the rule of law. Beyond this, political parties, non-state controlled media, and civil society were absent from Libya during the Qaddafi era.

 

And then there is the big possible problem of NATO’s undefined post-Qaddafi role. The air war inflicted widespread damage throughout the country, and already NATO entrepreneurial interests are staking their claims, and TNC spokespersons have indicated that those who lent their cause support will be rewarded in appreciation. Fortunately, NATO does not purport to be an occupying force, but the United States and the principal European countries that took part in the war are pulling strings to release billions of dollars of assets of the Libyan state that were frozen in compliance with Security Council Resolution 1973 and various national directives, and may well be playing a major advising role behind the scenes. Will this dynamic of enabling the new leadership to achieve a finance recovery and reconstruction in Libya come as part of a package containing undisclosed political conditions and economic expectations?  There are signs that oil companies and their government sponsors are scrambling to get an inside track in the current fluid situation. It does not require paranoia about imperialist geopolitics to take note of the fact that the two major military interventions in the Arab world within the last decade were both situated in significant oil producing countries whose leadership rejected integration into a world order in which global energy policy was under the firm control of the market interests of international capital. And, oh yes, the other likely target of major Western military action is Iran, and it too ‘happens’ to be a major oil producer. Let us recall that the UN failed to respond in oil-free Rwanda in 1994 when a small expansion of a peacekeeping presence already in the country might have saved hundred of thousands from an unfolding genocidal onslaught. In the realm of world politics, it may be worth observing, coincidences rarely happen.

 

There are also significant unresolved issues associated with the precedent set by the UN in authorizing a limited protective intervention that when acted upon ignored the guidelines set forth by the drafters of the Security Council resolution. The actual scope and ill-disguised purpose of the intervention shortly after it became an operational reality in Libya was to tip the balance in a civil war and achieve regime change. Such goals were never acknowledged by the pro-intervening governments in the course of the extensive and sharp Security Council debate, and had they been, it is almost certain that two permanent members, China and Russia, given their reluctance to approve of any use of force in the Libyan situation, would have blocked UN action by casting a veto. The UN is confronted by a dilemma. Either it refuses to succumb to geopolitical pressures as was the case when it withheld approval from the United States plan to attack Iraq in 2003, and steps aside while a so-called ‘coalition of the willing’ is hastily formed to carry out an attack, or they grant some kind of limited authority that is cynically overridden by the far more expansive goals of the intervening governments as has been the case in Libya. Either way respect for the authority of the UN is eroded, and the historical agency of geopolitics is confirmed.

 

In the Libyan case, the evaluation of the UN role is likely to depend on what happens in the country during the weeks and months ahead. If a humane and orderly transition takes place in the country, and national resources are used to benefit the people of Libya and not foreign economic interests, the intervention will be effectively marketed as a victory for humane governance and a demonstration that the international community can engage in humanitarian intervention in an effective and principled manner. If the country descends into chaos as the Libyan victors fight among themselves for the political and economic spoils or take revenge on those associated with the Qaddafi regime, the intervention will be retrospectively discredited. This will happen also if the country becomes one more neoliberal fiefdom in which the majority of the population struggles to subsist while tiny elites sitting in Tripoli and Benghazi collaborate with foreign financial and corporate interests while skimming billions off the top for themselves.

 

This assessment of the intervention as a precedent is based on considering only its consequences. As such, it does not take into account the importance of maintaining as a matter of principle, the integrity of UN authorizations of military force both in relation to the UN Charter and with respect to confining the military undertaking to the strict limits of what was authorized. I will consider in a companion essay this issue of sustaining constitutionalism and the rule of law when the Security Council authorizes military action.

 

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Can Humanitarian Intervention ever be Humanitarian?

4 Aug


             Not since the debate about the Kosovo War of 1999 has there been such widespread discussion of humanitarian intervention, including the semantics of coupling ‘humanitarian’ with the word ‘intervention.’ At one extreme of this debate about language stands Gareth Evans, former Foreign Minister of Australia, who is a staunch advocate of displacing the discourse on ‘humanitarian intervention’ by relying on concept of ‘responsibility to protect’ (known as R2P). Evans was, in fact, co-chair of the International Commission on Intervention and State Sovereignty that came up a decade ago with the idea of R2P. This approach to intervention was skillfully marketed it to the international community, including the United Nations. Arguing the conceptual case for R2P, Evans writes, “[b]y changing the focus from the ‘right’ to ‘responsibility,’ and from ‘intervene’ to ‘protect,’ by making clear that there needed to be at much attention paid to prevention as to reaction and non-coercive measures, and by emphasizing that military coercion—which needed to be mandated by the UN Security Council—was an absolute last resort in civilian protection cases.’ [Evans, “Humanitarian intervention is only justified when…” Global Brief, Summer 2011, 60.]

 

Insisting that the coercive actions in the Ivory Coast and Libya show the benefits of this approach, as contrasted with the supposed failures of the 1990s to take action in Rwanda, Bosnia, and Kosovo, Evans feels so vindicated by recent events as to make the following plea: “So let us please lay ‘humanitarian intervention’ language to rest once and for all.” This raises three questions: should we? will we? does it really matter? My answer to the first two is ‘no,’ and to the third, ‘not much.’ My basic problem with the R2P approach is that it downplays the role of geopolitics in the diplomacy of both decisions to intervene and to not intervene. By hiding this fundamental element in the decision process behind a screen of moralizing language talking of R2P rather than humanitarian intervention invites misunderstanding, as well as encourages imperial ambitions. 

 

            At the other semantic extreme is Michael Walzer, who writing in Foreign Affairs, insists that the idea of humanitarianism has become a central feature of world politics in the early 21st century. He starts his article with some hyperbolic language to this effect: “Humanitarianism is probably the most important ‘ism’ in the world today, given the collapse of communism, the discrediting of neoliberalism, and general distrust of large-scale ideologies.” [“On Humanitarianism,” Foreign Affairs 90(No.4): 69-80.] I find such a sentiment to be so exaggerated as to defy reasoned discussion. One wonders has how such an incredible sentence escaped the scrutiny of the eagle-eyed editors of Foreign Affairs. Walzer appears to be suggesting that humanitarianism now eclipses realism and nationalism as an influential global force in the world of ideas and statecraft, which is not only farfetched and wrong, but especially surprising considering that Walzer is without question one of the world’s most respected and influential thinkers on the ethical dimensions of relations among sovereign states. His overall effort in the article is to demonstrate that this humanitarian impulse is a matter of duty for governments, and should not be treated as a species of charity, a potentially valuable distinction that becomes clear when he comes to discuss humanitarian intervention without even mentioning the R2P approach, presumably because it obscures rather than illuminates the underlying issues of choice.

 

            Walzer looks behind the semantics of intervention to appraise the responses to situations where populations are genuinely at risk. He faults the UN Security Council as having a dismal record in the past due to its failures “to rescue those in need of rescuing,” giving Rwanda  and Bosnia as examples. Walzer goes on to conclude that the “UN Security Council rarely acts effectively in crises, not only because of the veto power of its leading members but also because its members do not a strong sense of responsibility for global security, for the survival of minority peoples, for public health and environmental safety, or for general well-being. They pursue their own national interests while the world burns.” [75] This passage sounds to me like an old-fashioned reaffirmation, after all, of realism and nationalism, and is far more descriptively credible than Walzer’s assertion that humanitarianism is the recently emergent dominant ideology.

 

            Coming to specifics, Walzer understandably turns his attention to Libya

as having generated a new debate about humanitarian intervention. He summarily dismisses leftist suspicions about Western recourse to hard power solutions to international conflict situations, but also acknowledges that this NATO intervention does not seem to be succeeding in making good on its initial humanitarian claim. Nevertheless, he gives the intervenors a surprising clean bill of health as far as their intentions are concerned: “Their motives were and are humanitarian, but not sufficiently shaped by considerations of prudence and justice.” [77] Walzer is alive to the complexity of international political life that makes him skeptical about endorsing generalized solutions to such general problems as what to do about a menaced civilian population.  Instead he advocates a situational approach to gross civilian vulnerability. He argues that any state can serve as a humanitarian agent even without necessarily receiving permission from the international community for a use of non-defensive force. In Walzer’s words, “[t]here is no established procedure that will tell us the proper name of the agent.” He gives approval to several non-Western examples of humanitarian intervention: Vietnam in 1978 contra the Khmer Rouge in Cambodia, India in 1971 contra Pakistan in what was then East Pakistan and is now Bangladesh, and Tanzania in 1979 contra the bloody tyranny of Idi Amin in Uganda. These uses of force are endorsed as serving humanitarian ends even though they failed to receive any mandate to act from the Security Council and although in each instance, despite rescuing a vulnerable population, the predominant motivation to intervene seemed clearly non-humanitarian in character. In contrast, Walzer pushing to the outer limit his central thesis as to the rise of  humanitarian diplomacy writes “In these circumstances, decisions about intervention and aid will often have to be made unilaterally…The governing principle is, Whoever can, should,” [79] which is the second extraordinary statement made in his article.

 

Such a volitional framework governing interventionary initiatives negates, without even an explanatory comment, the essential effort of contemporary international law to prohibit all international uses of force that are neither instances of self-defense (as defined by the UN Charter in Article 51) nor authorized by the UN Security Council. In this respect, Walzer seems to be endorsing a kind of ethical anarchism as the best available means for achieving global justice in these situations. At this point he veers back to his confidence in the purity of geopolitical motives by contending that ‘what drives’ these uses of force “is not only humanitarian benevolence but also a strong sense of what justice requires.” [79] This is written as if imperial ambitions even if packaged as ‘grand strategy’ should not be a concern. What about the protection of vulnerable states that are victimized by geopolitical maneuvers associated with resources, markets, and congenial ideology? It might be well to recall that it was a notorious tactic of Hitler’s expansionist foreign policy to intervene or threaten to do so for the sake of protecting German minorities being allegedly abused in neighboring countries.

 

            Returning to a comparison of perspectives, Evans sets forth a series of guidelines that he believes will make it more likely that uses of force in these interventionary settings will be respectful of international law while at the same time recognizing the sensitivities in the post-colonial world about giving approval to military encroachments upon sovereign space, which are invariably of a North/South character if acted upon by the United Nations, that is, the North as agent of intervention, the South as the site where force is used. His five criteria are law-oriented, and deferential to the authority vested in the Security Council: (1) seriousness of the risk; (2) purposeful and discriminate use of force to end threat of harm; (3) force as a last resort; (4) proportionality of military means authorized with respect to the humanitarian goals of the mission; (5) the likely benefit of the contemplated use of force for those being protected. Since Evans, unlike Walzer’s willingness to live with unilateralism, seeks a consensual foundation for such uses of force, he insists that the final mandate for an R2P operation must be shaped within the five-part framework set forth and based on a formal Security Council authorization. Walzer argues more opportunistically, geopolitically naively, that states should be empowered to act even without proper authorization if they have the will and means to do so. His examples  of humanitarian interventions by non-Western states (Vietnam, India, Tanzania)were all neighbors of the target state, and at the time contested to varying degrees due to the play of geopolitical forces, not as a reflection of different levels of humanitarian urgency. In this regard, the strongest humanitarian argument was undoubtedly present in support of the Vietnam intervention in Cambodia to stop a massive genocide, but also the most controversial as it contravened the American policy at the time of placating China so as to increase pressure on the Soviet Union.  Acting under the umbrella of R2P is most likely to generate intense controversy when the United States acts with or without European backing (Iraq, Afghanistan, Kosovo, Libya), especially if the humanitarian claim seems marginal or as a cloak hiding strategic and imperial goals. Only in the Libyan debate did R2P figure prominently, and maybe led several of the members of the Security Council, including China and Russia, to abstain rather than to vote against SC Resolution that gave NATO the green light to commence its military campaign.

In this sense, Evans’ claims need to be taken seriously, but not because they represent a step forward, but rather because they weaken the overall effort of the UN and international law to minimize war and military options in international political life.

 

            What makes these discussions serious is their bearing on life and death issues for vulnerable peoples and their supposed benefactors. On the one side, Noam Chomsky is right to worry about ‘military humanism,’ which he depicts as the grand strategy of hegemonic political actors being cleverly disguised as global public works projects. In effect, humanitarianism is the pathetic fig leaf selected to hide the emperor’s nudity. Chomsky points to ‘double standards’ as proof positive that whatever the explanation given for a particular intervention by the United States or NATO, the claimed humanitarian motivation is window dressing, and not the primary consideration. He treats Western silence about decades of brutal Turkish suppression of the Kurdish movement for human rights as an illuminating example of geopolitical blinkering whenever it seems inconvenient to take action on behalf of a victimized minority. In my view, the most extreme instance of double standards involves the failure of the UN System or ‘a coalition of the willing’ to take any action protective of the Palestinian population enduring an oppressive occupation for more than forty-four years,

despite the direct UN and colonialist responsibility for the Palestinian ordeal.  

 

On the other side of this debate among progressives is Mary Kaldor who worries that without the intervention option dreadful atrocities would take place with even greater frequency. She supported intervention to protect the endangered Albanian population of Kosovo, fearing that otherwise the genocidal horrors of Bosnia would likely have been repeated, including even the risk of reenacting the grisly massacre of Srebrenica. At the same time, Kaldor was not indifferent to the risks of great power abuse, and tried, in the manner of Gareth Evan, to condition her endorsement of intervention with a framework of guidelines that if followed would make the restraints of international humanitarian law applicable and minimize the exploitative opportunities of intervening powers. This framework was embodied in the report of the Independent International Commission on Kosovo on which Kaldo was an influential member. That report also took account of the inability of the intervenors to win UN Security Council approval (in this instance, because of the expectation of Russian and Chinese vetoes). The report took the position that in situations of imminent humanitarian catastrophe it would be legitimate to intervene if the capabilities were available to exercise effective proportionate force, although unlawful given the UN Charter prohibition on all non-defensive claims to use force. It is, of course, not generally desirable to create exceptions to restraints that enjoy the status of fundamental rules of international law, but it can seem even more discrediting for the role of law in world affairs to be paralyzed in humanitarian emergencies by rigid rules and procedures that produce inaction, and expose vulnerable peoples to the ultimate abuse of genocide or severe crimes against humanity.

 

There is no right and wrong in such a debate. Both orientations are in touch with relevant realities, and there is no principled way to choose between such contradictory concerns beyond an assessment of risks, costs, and likely effects of intervention or inaction in each instance depending on its overall properties. Judgment here is necessarily operating in a domain of radical uncertainty, that is, nobody knows! This raises the crucial question, what to do when nobody knows? It is this unavoidable responsibility for a decision when the consequences are great and available knowledge is of only limited help that points to the difficulties of the human condition even putting to one side the distorting effects of greed, ambition, civilizational bias, and the maneuvers of geopolitics. The late great French philosophical presence, Jacque Derrida, explored this dilemma in many discourses that related freedom to responsibility, with some collateral damage to Enlightenment confidence in the role of reason in human affairs. For Derrida, making such decisions is an unavoidable ordeal that is embedded in what it means to be human, combining helplessness with urgency.

 

            I would suggest two lines of response. First, there are degrees of uncertainty, making some decisions more prudent and principled, although inevitably with the unclear contours with respect to envisioning outcomes given ‘the fog of war.’ In this regard everything is guesswork when it comes to composing a balance sheet of horrors. Still, it seems plausible to insist that Rwanda in 1994 was a lost opportunity spare many lives taken in a genocidal onslaught, a claim strengthened now and later by the preexisting presence of a UN peacekeeping force in the country, and the informed judgment of both the UN commander on the ground and many observers. General Roméo Dallaire indicated at the start of the crisis that 5,000 additional troops plus a protective mandate to act from the UN could have prevented most of the killings, estimated to be over 800,000. (Dallaire commanded the UN Assistance Mission for Rwanda; see also Linda Malvern, Conspiracy to Murder: The Rwandan Genocide, Verso, 1994.). From the perspective of prudence, the fate of minorities trapped in major states is almost always an unattractive option, although non-military initiatives of support and censure may have positive effects in some instances. It is unattractive because the costs would be high, the target state has major capabilities, the scale of an effective intervention would exceed the political will to protect a threatened minority, and most important, there would be a high risk of starting a general war.

 

The Libyan intervention in 2011 was falsely labeled and the mission authorized was light years away from the operational goals of the NATO operation. In effect, this amounts to a disguised form of an unlawful use of force, but coupled with a dereliction of duty on the part of the Security Council to ensure that the gap between its mandate and the actual operation was closed. Besides, those who are being protected, or more accurately, being helped in a struggle for control of the country, were a shadowy organization thrown together on the spot, lacking in cohesion, and almost from the outset having recourse to violence in a manner that violated the spirit and character of the inspiring Arab Spring popular movements in neighboring Tunisia and Egypt. At the same time, there was a humanitarian challenge, as the dictatorial leader, Col. Muammar Qaddafi, was delivering bloody rants and the civilian population, under siege in Benghazi, was definitely in a situation of imminent risk. Under these circumstances, a carefully delineated protective move under UN auspices could have been justified, but it would have depended on placing NATO troops in situations of potential danger. The kind of air campaign that has been waged by inflating and exceeding the actual UN mandate depicted in Security Council Resolution 1973 has been discrediting for UN peacekeeping and authority. It has been ineffectual in stopping the violence in Libya, and likely responsible for its spread. At the same time, so far the intervention has resulted in not a single NATO casualty (while causing a rather large number of Libyan civilian deaths). Whether the stalemate in the conflict will produce a negotiated compromise remains uncertain, but the shaping and execution of the intervention is suggestive of the inadequacy of either allowing the decisions and policies relating to humanitarian catastrophe to be made by governments on the basis of their own calculus or through reliance on a UN framework that is susceptible to major geopolitical manipulation.

 

There is a preferable, although imperfect, alternative that has been around for several years: the establishment of a UN Emergency Peace Force (UNEPF) capable of being activated through the joint authority of the Secretary-General and a super-majority of two-thirds of the membership of the UN Security Council in reaction to either a humanitarian catastrophe arising from political policies or conflict, or a natural disaster that exceeds the response capabilities of the national government. The UNEPF should ideally be funded through some kind of small global tax imposed on the sale of luxury goods, international travel, currency transactions in financial markets, or some combination. If this proves to be impractical, then voluntary contributions by non-permanent members of the UN Security Council would be acceptable. The whole idea would be, to the extent possible, to break the present links between ‘humanitarian interventions’ and geopolitics. The only means to do this would be through the creation of a maximally independent international agency for such undertakings that would engender confidence in its good faith and through its prudent tactics and effective operations. Unlike such delegated interventions as the Gulf War of 1991, the Kosovo War of 1999, and the Libyan War of 2011, UNEF would rely on tactics that were geared toward minimizing risks for a threatened population and would operate under the strict supervision of the mandating authorities while carrying out an interventionary or relief mission. UNEPF capabilities would be constructed from the ground up, with separate recruitment, training, doctrine, and command structure.

 

            This seems like such a sensible innovation for the benefit of humanity that it may seem puzzling why it has never gained significant political support from UN members, but it should not be. For decades global reformers have been advocating a UN tax (often named a ‘Tobin Tax’ after James Tobin, an Nobel economist who first floated such a proposal) and the kind of UNEPF recommended above (for instance, carefully outlined in a proposal developed by Robert Johansen in collaboration with other scholars, a prominent political scientist who has for years been associated with the Kroc Institute of International Peace Studies at Notre Dame). Such a practical solution to this daunting challenge is not on the table because it would weaken the leverage of geopolitical actors over the resolution of conflict situations. Reverting to the earlier discussion of Walzer, it is precisely because humanitarianism is marginal to the conduct of world politics that makes the UNEPF proposal seem utopian. In relation to Evans, geopolitical forces can accommodate his framework, which is probably well-intended, but provides intervening states with a rationalization for their desired uses of force without significantly interfering with the discretion to intervene and not to intervene. As the Libyan debate and decision confirms, geopolitics remains in control despite recourse to the framing of action by reference to R2P. If we want more principled and effective action in the future, it will require a great deal of pressure from global civil society in collaboration with middle powers, the sort of coalition that led to the surprising establishment of the International Criminal Court in 2002 over the opposition of such international stalwarts as the United States, China, Russia, and India.

 

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Is the Arab Spring a Black Swan?

6 May

             Understanding the Western response to the Arab Spring, a colorful designation of the democratizing movements of varying character that have rocked the foundations of the Arab world, is an ongoing process.  These movements are also seen as posing possibly serious threats to the structure of economic and strategic interests associated with long standing American and European influence in the region.  On the surface after some obvious hesitation, even ambivalence, the liberal democratic governments of the West, headed by the United States, declared their support for the Arab Spring, and even mounted a ‘humanitarian intervention’ (disguised as a No Fly Zone to protect the Libyan civilian population so as to discourage Russian and Chinese vetoes in the UN Security Council) to help the rebels prevail in their civil war against the Qaddafi regime. Everywhere in the region the political outcome of these unfinished uprisings remain shrouded in multiple doubts.

 

Having just visited Egypt for a week I came away with this dual sense that the revolutionary dynamics have produced remarkable results that form a glorious chapter of Egyptian history, but also that there are a variety of dark forces that are working under the radar to contain if not reverse this exhilirating democratizing momentum. In the foreground was the widespread acknowledgement by all sectors of public opinion in Cairo that the more reflective governing policy is of popular sentiments the more likely is a definite adjustment of diplomatic stance with regard to the Israel/Palestine conflict. This stance is already evident in the opening of the Rafah Crossing and in the robust Egyptian encouragement of Palestine Authority/Hamas reconciliation.

 

Looking from outside, I encountered one brief insight into real American thinking about the Arab Spring that was for me particularly revealing. It was published in the comment section of the May/June 2011 online website of Foreign Affairs, the most influential voice on foreign policy in the United States. It was written by Nassim Nicholas Taleb and Mark Blyth, and opened with this rather startling sentence: “The upheavals in the Middle East had much in common with the recent financial crisis: both were plausible worst-case scenarios whose probability was dramatically underestimated.” What an odd comparison! The equivalence was premised on the negative character of both occurrences, which led the authors to identify the emancipatory movements in the Middle East with the perjorative label of “upheavals,” thereby ignoring the manifest revolutionary and reformist challenges being directed at the established repressive political order. At their worst, these movements could be downgraded to ‘uprisings,’ rather than the image of ‘upheavals’ that mainly suggests purposeless disorder.

 

The most remarkable aspect, by far, of the Taleb/Blyth comment was to treat these Middle Eastern events as illustrative of unanticipated “worst-case scenarios.” Worst-case? Such a perception only makes sense if it unintentionally reflects the undisclosed underlying strategic consensus that the Arab Winter was far better for the West than the Arab Spring. In effect, that authoritarian government in the region was a necessary correlate of Western grand strategy long built around petropolitics, and more recently extended to the containment of political Islam and sustaining Israeli

regional security goals. Netanyahu and other political leaders in Israel acknowledged as much by their outspoken admission that they were sorry to see the Mubarak regime collapse.

 

             Nissam Nicholas Taleb is a financial risk analyst who made a wider stir when he published his book Black Swan  a couple of years ago. It has as its central and compelling thesis that there is a pervasive tendency for history to be shaped by unpredicted events, and especially by occurrences that have not taken place in the past. His vivid central metaphor is the assumption that all swans are white because no other color had been seen until the black swan variety was discovered in Australia. This is an interesting alternative approach to what I have been calling ‘the politics of impossibility,’ a phrase meant to suggest that the impossible repeatedly happens, making future studies based on past trends and statistical projections almost certain to be wrong.

 

            I am not contesting the idea that implausible happenings should be taken into far greater account when contemplating the future. What I am remarking critically upon is the bland classification of the Arab Spring as ‘a worst-case scenario,’ and the fact that such a comment could survive scrutiny from the normally very adept gatekeepers at Foreign Affairs. Is it to be explained as an accidental political oversight or more darkly as a revelation of the mindset so ingrained within the American foreign policy establishment as to be unnoticeable? If the latter, then, it is not surprising that such a phrasing would not even be noticed because it was accurately expressive of the private discourse among foreign policy elites on the impact of these developments. Supportive of this latter interpretation is the fact that this Black Swan comment has remained featured on the Foreign Affairs website.

 

            It is possible that I am exaggerating a flourish that is nothing more than a slip of the pen! At the very least, however, it should serve as a reminder, if not a warning, that there is not only pro-democracy cheering going on in the Washington situation rooms that shape the foreign policy of Western countries, especially the United States, with respect to what to hope for in the Middle East. As the Chinese supposedly believe: “two persons sleep in the same bed but they have different dreams.”


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Will We Ever Learn? Kicking the Intervention Habit

7 Mar

Will We Ever Learn? Kicking the Intervention Habit


What is immediately striking about the bipartisan call in Washington for a no-fly zone and air strikes designed to help rebel forces in Libya is the absence of any concern with the relevance of international law or the authority of the United Nations. None in authority take the trouble to construct some kind of legal rationalization. The ‘realists’ in command, and echoed by the mainstream media, do not feel any need to provide even a legal fig leaf before embarking on aggressive warfare.


It should be obvious that a no-fly zone in Libyan airspace is an act of war, as would be, of course, contemplated air strikes on fortifications of the Qadaffi forces. The core legal obligation of the UN Charter requires member states to refrain from any use of force unless it can be justified as self-defense after a cross-border armed attack or mandated by a decision of the UN Security Council. Neither of these conditions authorizing a legal use of force is remotely present, and yet the discussion proceeds in the media and Washington circles as if the only questions worth discussing pertain to feasibility, costs, risks, and a possible backlash in the Arab world. The imperial mentality is not inclined to discuss the question of legality, much less show behavioral respect for the constraints embedded in international law.

Cannot it not be argued that in situations of humanitarian emergency ‘a state of exception’ exists allowing an intervention to be carried out by a coalition of the willing provided it doesn’t make the situation worse? Was not this the essential moral/political rationale for NATO’s Kosovo War in 1999, and didn’t that probably spare the majority Albanian population in Kosovo from a bloody episode of ethnic cleansing at the hands of the embattled Serb occupiers? Hard cases make bad precedents, as is well known. But even bad precedents need to find a justification in the circumstances of a new claimed situation of claimed exception, or else there would a strong reinforcement for the public impression that the powerful act as they will without even pausing to make a principled argument for a proposed departure from the normal legal regime of restraint.


With respect to Libya, we need to take account of the fact that the Qaddafi government, however distasteful on humanitarian grounds, remains the lawful diplomatic representative of a sovereign state, and any international use of force even by the UN, much less a state or group of states, would constitute an unlawful intervention in the internal affairs of a sovereign state, prohibited by Article 2(7) of the UN Charter unless expressly authorized by the Security Council as essential for the sake of international peace and security. Beyond this, there is no assurance that an intervention, if undertaken, would lessen the suffering of the Libyan people or bring to power a regime more respectful of human rights and dedicated to democratic participation.

The record of military intervention during the last several decades is one of almost unbroken failure if either the human costs or political outcomes are taken into proper account. Such interventionary experience in the Islamic world during the last fifty years makes it impossible to sustain the burden of persuasion that would be needed to justify an anti-regime intervention in Libya in some ethically and legally persuasive way.


 

 

 

 

 

There are also serious credibility concerns. As has been widely noted in recent weeks, the United States has had no second thoughts about supporting oppressive regimes throughout the region for decades, and is widely resented for this role by the various anti-regime movements. Qadaffi’s crimes against humanity were never a secret, and certainly widely known by European and American intelligence services. Even high profile liberal intellectuals in Britain and the United States welcomed invitations to Tripoli during the last several years, apparently without a blink of conscience, accepting consulting fees and shamelessly writing positive assessments that praised the softening authoritarianism in Libya. Perhaps, that is what Joseph Nye, one of the most prominent of these recent good will visitors to Tripoli, would call a private use of ‘smart power,’ commending Qadaffi for renouncing his anti-West posture, for making deals for oil and weapons, and most of all for abandoning what some now say was at most a phantom nuclear weapons program.

Some Beltway pundits are insisting on talk shows that the interventionists after faltering in the region want to get on the right side of history before it is too late. But what is the right side of history in Libya seems quite different than it is in Bahrain or Jordan, and for that matter throughout the region. History seems to flow according to the same river currents as does oil! Elsewhere, the effort is to restore stability with minimal concessions to the reformist demands, hoping to get away with a political touch up that is designed to convert the insurrectionists of yesterday into the bureaucrats of tomorrow.

Mahmoud Mamdani has taught us to distinguish ‘good Muslims’ from ‘bad Muslims,’ now we are being instructed to distinguish ‘good autocrats’ from ‘bad autocrats.’ By this definition, only the pro-regime elements in Libya and Iran qualify as bad autocrats, and their structures of must at least be shaken if they cannot be broken. What distinguishes these regimes? It does not seem to be that their degree of oppressiveness is more pervasive and severe than is the case for the others. Other considerations give more insight: access and pricing of oil, arms sales, security of Israel, relationship to the neoliberal world economy.

What I find most disturbing is that despite the failures of counterinsurgency thinking and practice, American foreign policy gurus continue to contemplate intervention in post-colonial societies without scruples or the slightest show of sensitivity to historical experience, not even the recognition that national resistance in the post-colonial world has consistently neutralized the advantages of superior hard power deployed by the intervening power. The most that has been heard is a whispered expression of concern by the relatively circumspect Secretary of Defense, Robert Gates, that it may not be prudent at this time for the United States to intervene in yet another Islamic country. The absence of any learning from Vietnam, Afghanistan, and Iraq is startling, underscored by the glorification of General David Petraeus who rose to military stardom soon after he was credited with refurbishing the army’s approach to counterinsurgency, which is the Pentagon jargon for pro-regime intervention. Major current illustrations are Afghanistan, Iraq, and several other places in the Middle East. Technically speaking, the proposed intervention in Libya is not an instance of counterinsurgency, but is rather a pro-insurgency intervention, as has also been the case with the covert destabilization efforts that continue in Iran.

It is easier to understand the professional resistance to learning from past failure on the part of military commanders as it is their life work, but the civilian politicians deserve not a whit of sympathy. Among the most ardent advocates of intervention in Libya are the last Republican presidential candidate, John McCain, the supposedly independent Joe Lieberman, and the Obama Democrat John Kerry. It seems that many of the Republicans focused on the deficit although cutting public expenditures punishes the poor at a time of widespread unemployment and home foreclosures would not mind ponying up countless billions to finance acts of war in Libya. There exists a worrying readiness to throw money and weapons at an overseas conflict, seemingly as to show that imperial geopolitics is not yet dead despite the growing evidence of American decline.

In the end, I suppose we have to hope that those more cautious imperial voices that base their opposition to intervention on feasibility concerns carry the day!

What I am mainly decrying here in the Libyan debate are three kinds of policy failure:

(1) the exclusion of international law and the United Nations from relevance to national debates about international uses of force;

(2) the absence of respect for the dynamics of self-determination in societies of the South;

(3) the refusal to heed the ethics and politics appropriate for a post-colonial world order that is being de-Westernized and is becoming increasingly multi-polar.


III.7.2011

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