This post is a corrected and modified version of my earlier text with the same title; this version is published in AJE today, 1 May 2012
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From all that we know Charles Taylor deserves to be held criminally accountable for his role in the atrocities committed in Sierra Leone during the period 1998-2002. Taylor was then President of Liberia, and did his best to encourage violent uprisings against the governments in neighboring countries so as to finance his own bloody schemes and extend his regional influence. It was in Sierra Leone that ‘blood diamonds,’ later more judiciously called ‘conflict diamonds’ were to be found in such abundance as to enter into the lucrative world trade, with many of these diamonds finding their way eventually onto the shelves of such signature jewelry stores as Cartier, Bulgari, and Harry Winston, and thereby circumventing some rather weak international initiatives designed to protect what was then considered the legitimate diamond trade.
It is fine that Charles Taylor was convicted of 11 counts of aiding and abetting war crimes and crimes against humanity of the rebel militias that committed atrocities of an unspeakable nature, and that he will be sentenced in early May. And it may further impress liberal commentators that fair legal procedures and diligent judicial oversight led to Taylor’s acquittal with respect to the more serious charges of ‘command responsibility’ or ‘joint criminal enterprise.’ Surely, the circumstantial evidence sufficiently implicated Taylor in a knowing micromanaging of the crimes that it would have seemed reasonable to hold him criminally responsible for the acts performed, and not just for aiding and abetting in their commission. I share the view that it is desirable to lean over backwards to establish a reputation of fairness in dealing with accusations under international criminal law. It is better not to convict defendants involving crimes of state when strong evidence is absent to uphold specific charges beyond any reasonable doubt. In this respect, the Taylor conviction seems restrained, professional, and not vindictive or politically motivated.
But as Christine Cheng has shown in a perceptive article published online in Al Jazeera (27 April 2012) there are some elements of this conviction that feed the suspicion that the West is up to its old hypocritical tricks of seizing the high moral ground while pursuing its own exploitative economic and geopolitical goals that obstruct the political independence and sovereignty of countries that were once their colonies. As Cheng points out the financing of the Special Court on Sierra Leone was almost totally handled by the United States, United Kingdom, the Netherlands, and Canada. In addition, there were pragmatic reasons to make sure that Taylor was never allowed to return to Liberia where he retained a strong following. It was feared that if Taylor was back in Liberia he would likely again foment trouble in the Liberian sub-region, and this would make it impossible to restore stability, and begin ‘legitimate’ mining operations, which is what the West apparently wanted to have happen in Sierra Leone.
What is dramatically ironic about the whole picture is that the United States is the number one advocate of international criminal justice for others. President Obama has even taken the unprecedented step on 23 April 2012 of establishing an Atrocity Prevention Board under the authority of the National Security Council, and headed by Samantha Power a prominent human rights activist that has been serving in his administration. In his speech of 23 April at the U.S. Holocaust Memorial Museum announcing the formation of the Board Obama said that atrocity prevention and response was a ‘core national interest of and core moral responsibility’ of the United States. It is hard to fault such an initiative in light of the faltering American (and UN) response to recent allegations of mass atrocity in Syria and Sudan, and against the background of refusing to be more pro-active back in 1994 as a grotesque and preventable genocide unfolded in Rwanda. At the same time, there is an impression, the essence of the liberal mentality, of Uncle Sam surveying the world with a blinkered vision, seeing all that is horrible while overlooking his own deeds and those of such friends as Israel or Bahrain.
Heeding the sound of one hand clapping it might be well to remember that the United States more than any country in the world holds itself self-righteously aloof from accountability on the main ground that any international judicial process might be tainted by politicized motivations! Congress has even threatened that it would use military force to rescue any Americans that were somehow called to account by the International Criminal Court in The Hague, and has signed agreements with over 100 governments pledging them not to hand over American citizens to the ICC. And yet it is American international criminal lawyers and human rights NGOs that have been most loudly applauding the outcome in the Taylor case, without even a whimper of acknowledgement that there may be some issues relating to double standards. If international criminal adjudication is so benevolent when prominent Africans are convicted, why does the same not hold for Americans? Given the structure of influence in the world there exists more reason for Africans to be suspicious of such procedures than Americans who fund such efforts, and are so influential behind the scenes.
If aiding and abetting is what the evidence demonstrates, then should there not be at least discussion of whether international diamond merchants and jewelry retailers making huge profits by selling these tainted diamonds should not have investigated, and even prosecuted? There was a voluntary, self-regulating certification procedure was established, the Kimberly Process (2001) named after the city in South Africa where the meeting of concerned governments, corporate leaders, and civil society representatives took place. This joint initiative was especially pushed by large diamond sellers, such as the notorious De Beers cartel of South Africa, that were distressed by the downward effect on world prices by the availability of blood diamonds. A British NGO, Global Witness, reports that almost none of the prominent diamond retailers took any notice of this cooperative effort to restrict the flow of blood diamonds, and seemingly purchased diamonds at the lowest price without inquiring too much as to their origins or complying with the certification requirement established by the Kimberly Process. The latter process was partly developed to avoid a civil society backlash protesting this indirect support of atrocities, as well as protect the market shares and control of the established international companies that had long dominated the lucrative trade in diamonds. But isn’t revealing that Western corporations are asked to act in a morally responsible manner by way of a voluntary undertaking while political leaders of sovereign states in Africa are subject to the draconian rigor of international criminal law?
These issues are absent from the Western public discourse. Take the self-satisfied editorial appearing in the Financial Times (April 27, 2012). It starts with words affirming the larger meaning of Taylor’s conviction: “A strong message was sent to tyrants and warlords around the world yesterday. International law may be slow, but even those in the higher ranks of power can be held to account for atrocities committed against the innocent.” And the editorially ends even more triumphantly, and without noticing the elephant standing in the middle of the room, that leaders “..in states weak and strong—now know that there can be no impunity for national leaders when it comes to human rights.” Such language needs to be decoded to convey its real message as follows: “national leaders of non-Western countries should realize that if their operations henceforth stand interfere with geopolitical priorities, they might well be held criminally responsible.”
There are several observations that follow: (1) if non-Western leaders are supportive of Western interests, their atrocities will be overlooked, but if there is a direct confrontation, then the liberal establishment will be encouraged to start ‘war crimes talk’ (thus Milosevic, Saddam Hussein, and Qaddafi (with the latter killed before proceedings couild be initiated) were charged with crimes, while the crimes of those governing Bahrain, Saudi Arabia, and Israel[1] were ignored); (2) the great majority of cases dealing with international crimes have been up to this point are associated with events and alleged criminality in sub-Saharan Africa, confirming the extent to which this region has been devastated by bitter conflicts, many of which are attributable to the remnants of colonialism (divide and rule; slave trade; arbitrary boundaries separating tribal and ethnic communities; apartheid; continuing quest for valuable mineral resources by international business interests); (3) the Western mind is trained not to notice, much less acknowledge, either the historical responsibility of the colonial powers or the unwillingness of the West to submit to the same accountability procedures that are being relied upon to impose criminal responsibility on those who are perceived to be blocking Western economic and political interests.
The United States is particularly vulnerable from these perspectives. When we hear the names of Guantanamo Bay and Abu Ghraib the immediate association is with American war crimes. When American leaders openly endorse reliance on interrogation techniques that are generally condemned as ‘torture’ we should be commenting harshly on the wide chasm separating ‘law’ from its consistent implementation. When a soldier, such as Bradley Manning, exposes the atrocities of the Iraq and Afghanistan wars he is held in humiliating prison circumstances and prosecuted for breaching secrecy, with suggestions that his intent was ‘treasonous,’ that is, intended to help enemies. At least, if there was a measure of good faith in Washington, it should have been possible to move forward on parallel paths: hold Manning nominally responsible for releasing classified materials, mitigated by his motives and absence of private gain, but vigorously repudiate and investigate the horrible crimes being committed against civilians in Iraq and Afghanistan, as well as the battlefield practices and training programs that give rise to such atrocities.
The Western powers have gone significantly further in sculpting international law to their liking. They have excluded ‘aggressive war’ from the list of international crimes contained in the Rome Treaty that governs the scope of ICC jurisdiction. When the defendants were the losers in World War II, aggressive war was treated at Nuremberg (and Tokyo) as the supreme war crime as it was declared to encompass the others, war crimes and crimes against humanity. The UN Charter was drafted to reflect this outlook by unconditionally prohibiting any recourse to force by a state except in self-defense narrowly defined as a response to a prior armed attack. But in the decades that followed each of the countries that sat in judgment at Nuremberg engaged in aggressive war and made non-defensive uses of force, and so the concept became too contested by practice to be any longer codified as law. This reversal and regression exemplifies the Janus face of geopolitics when it comes to criminal accountability: when the application of international criminal law serves the cause of the powerful, it will be invoked, extended, celebrated, even institutionalized, but only so long as it is not turned against the powerful. One face of Janus is that of international justice and the rule of law, the other is one of a martial look that glorifies the rule of power on behalf of the war gods.
Where does this line of reasoning end? Should we be hypocrites and punish those whose crimes offend the geopolitical gatekeepers? Or should we insist that law to be law must be applied consistently? At least these questions should be asked, inviting a spirit of humility to emerge, especially among liberals in the West.
[1] Of course, Israel is only geographically non-Western, and its leadership enjoys the same kind of impunity available to American leaders and those of allied countries.


The Nakba: 2012
17 MayThe recent parallel hunger strikes in Israeli prisons reignited the political imagination of Palestinians around the world, strengthening bonds of ‘solidarity’ and reinforcing the trend toward grassroots reliance on nonviolent resistance Israeli abuses. The crisis produced by these strikes made this year’s observance of Nakba Day a moral imperative for all those concerned with attaining justice and peace for the long oppressed Palestinian people whether they be living under occupation or in exile. The Palestinian mood on this May 14th, inflamed by abuse and frustration, but also inspired by and justly proud of exemplary expressions of courage, discipline, and nonviolent resistance on the part of imprisoned Palestinians who are mounting the greatest challenge of organized resistance that Israel has faced since the Second Intifada.
The agreements ending the strikes were reached as a result of Israeli concessions, pledges to reduce reliance on administrative detention, abandon solitary confinement, and allow family visits, including from Gaza. Whether these pledges will be honored remains to be seen. Past Israeli behavior whether with respect to Israeli settlement activity or with respect to softening the impact of the blockade on Gaza that has been maintained for five years suggest that only careful monitoring will determine whether Israel abides by its commitments. The experience of Hana Shalabi is not encouraging. In an agreement that ended her hunger strike after 43 days in exchange for her release from administrative detention, she was not allowed to return to her West Bank home but sent to Gaza and ordered to remain there for three years.
Whether she was told about this condition at the time of her release has not been satisfactorily clarified, but it does strongly suggest that it is important to
Remember that there are two devils: one hangs out in the details, the other in the degree to which behavior corresponds with the pledges.
As of now, the outcome of these hunger strikes have been justly celebrated as a victory for Palestinian resistance, and a further demonstration that at this stage the political struggle against Israeli occupation depends on the will and creativity of the people, and not on the diplomatic skill of the leadership. Inter-governmental diplomacy of the sort associated with ‘the Oslo peace process’ and ‘the Quartet’s road map’ have provided a smokescreen to divert attention from Israeli expansionist ambitions for the past twenty years without moving the two sides one inch closer to a sustainable and just peace.
Perhaps, the other good news for the Palestinians is the further decline of Israel’s global reputation. According to a BBC poll only Iran and Pakistan are viewed more unfavorably than Israel among the 22 countries ranked, suggesting the utter failure of the expensive Israeli propaganda campaign. Even if Europe the unfavorable ratings associated with Israel are strikingly high: 74% Spain, 65%, France, 69% Germany, 68% Britain. What calls for explanation is why these European governments and the European Union ignore such a mandate from their own citizens, and continue to pursue policies that are unconditionally pro-Israeli.
There are other signals of a shift in the diplomatic balance of forces. According to another new poll 61% of Egyptians want to cancel the 1979 Treaty with Israel. This is reinforced by the resentment of Egyptians toward the United States’ role in their country in the Middle East generally. 79% of the 1000 Egyptians interviewed expressed their unfavorable view of the United States.
Where are the Israeli ‘realists’ hiding? Instead of loose talk about attacking Iran isn’t time to give weight to such recent developments? The writing is on the wall. Military superiority and political violence do not ensure security in the early 21st century. Legality and legitimacy matter more than ever. It is Turkey that exerts regional influence, not because it throws its weight around, but because it has, despite some serious flaws, pursued a path that has brought greater prosperity at home, acted independently and effectively in fashioning its foreign policy, and achieved a governing style reflective of its cultural identity. These achievements generate a Turkish Model that is attractive, overlooking unresolved acute problems with minorities and a clumsy kind of unwillingness to respect dissenting voices.
Reverting to the Palestinian epic hunger strikes that continue to deserve our attention and admiration. It all started when a lone prisoner, Khader Adnan initiated a hunger strike to protest his abusive arrest and administrative detention on December 17th, which happens to be the exact anniversary of the day that the Tunisian vendor, Mohammed Bouazizi, set himself on fire, his death leading directly to a wave of uprisings across the region that became known throughout the world as the Arab Spring. Adnan gave up his strike after 66 days when Israel relented somewhat on his terms of detention, and this was the same length of time that Bobby Sands maintained his hunger strike unto death so as to dramatize IRA prison grievances in North Ireland. It is not surprising that the survivors of the 1981 Irish protest should now be sending bonding messages of empathy and solidarity to their Palestinian brothers locked up in Israeli jails.
What Adnan did prompted other Palestinians to take a similar stand. Hana Shalabi, like Adnan a few weeks later experienced a horrible arrest experience that included sexual harassment and was sent to prison without charges or trial four months after she had been ‘released’ in the Shalit prisoner exchange in October 2011. She too seemed ready to die rather than endure further humiliation, and was also eventually released, but punitively, being ‘deported’ to Gaza away from her West Bank village and family for a period of three years. Others hunger strikes followed, and now two types of hunger strike under way, each influenced by the other.
The longer of the strike involves six protesting Palestinians who are in critical condition, with their lives at risk for at least the past week. Bilal Diab and Thaer Halahleh who have now refused food for an incredible 76 days, a sacrificial form of nonviolent resistance that can only be properly appreciated as a scream of anguish and despair on behalf of those who have been suffering so unjustly and mutely for far too long. It is a sign of Western indifference that even these screams seem to have fallen on deaf ears.
The second closely related hunger strike that has lasted almost a month is an equally an extraordinary display of disciplined nonviolence, initiated on April 17th Palestinian Prisoners Day. By now there are reported to be as many as 2000 prisoners who are refusing all food until a set of grievances associated with deplorable prison conditions are satisfactorily. The two strikes are linked because the longer hunger strike inspired the mass strike, and the remaining several thousand non-striking Palestinian prisoners in Israel jails are already pledged to join the strike if there are any deaths among the strikers. This heightened prisoner consciousness has already been effective in mobilizing the wider community of Palestinians living under occupation, and beyond.
This heroic activism gives an edge to the 2012 Nakba observance, and contrasts with the apparent futility of traditional diplomacy. The Quartet tasked with providing a roadmap to achieve a peaceful resolution of the Israel/Palestine conflict seems completely at a loss, and has long been irrelevant to the quest for a sustainable peace, let alone the realization of Palestinian rights. The much publicized efforts of a year ago to put forward a statehood bid at the United Nations seems stalled indefinitely due to the crafty backroom maneuvers of the United States. Even the widely supported and reasonable recommendations of the Goldstone Report to seek accountability for Israeli leaders who seemed guilty of war crimes associated with the three weeks of attacks on Gaza at the end of 2008 has been permanently consigned to limbo. And actually the situation is even worse for the Palestinians than this summary depiction suggest. While nothing happens on the diplomatic level other clocks are ticking at a fast pace. Several developments adverse to Palestinian interests and aspirations are taking place at an accelerating pace: 40,000 additional settlers are living in the West Bank since the temporary freeze on settlement expansion ended in September 2010, bringing the overall West Bank settler population to about 365,000, and well over 500,000 if East Jerusalem settlers are added on.
Is it any wonder then that Palestinians increasingly view the Nakba not as an event frozen in time back in 1947 when as many as 700,000 fled from their homeland, but as descriptive of an historical process that has been going on ever since Palestinians began being displaced by Israeli immigration and victimized by the ambitions and tactics of the Zionist Project? It is this understanding of the Nakba as a living reality with deep historical roots that gives the hunger strikes such value. Nothing may be happening when it comes to the peace process, but at least, with heightened irony, it is possible to say that a lot is happening in Israeli jails. And the resolve of these hunger strikers is so great as to convey to anyone that is attentive that the Palestinians will not be disappeared from history. And merely by saying this there is a renewed sense of engagement on the part of Palestinians the world over and of their growing number of friends and comrades, that this Palestinian courage and sacrifice and fearlessness will bring eventual success and, in contrast, it is the governmental search for deals and bargains built to reflect power relations not claims of rights that seems so irrelevant that its disappearance would hardly be noticed.
By and large, the Western media, especially in the United States, has taken virtually no notice of these hunger strikes, as if there was no news angle until the possibility of martyrdom for the strikers began at last to stir fears in Israeli hearts and minds of a Palestinian backlash and a public relations setback on the international level. Then and only then has there been speculation that maybe Israel could and should make some concessions, promising to improve prison conditions and limit reliance on administrative detention to situations where a credible security threat existed. Beyond this frantic quest by Israel to find a last minute pragmatic escape from this volatile situation posed by both hunger strikers on the brink of death and a massive show of solidarity by the larger prison population, is this sense that the real message of the Nakba is to underscore the imperative of self-reliance and nonviolence and ongoing struggle. The Palestinian future will be shaped by the people of Palestine or nothing. And it is up to us in the world, whether Palestinian or not, to join in their struggle to achieve justice from below, sufficiently shaking the foundations of oppressive structures of occupation and the exclusions of exile to create tremors of doubt in the Israeli colonial mindset. And as doubts grow, new possibilities suddenly emerge.
For this reason, the Nakba should become important for all persons of good will, whether Palestinian or not, whether in Israel or outside, as an occasion for displays of solidarity. This might mean a global sympathy hunger strike as is being urged for May 17th or an added commitment to the BDS Campaign (Boycott, Divestment, and Sanctions) or signing up to join the next voyage of the Freedom Flotilla. Certainly the Nakba is a time of remembrance for the historic tragedy of expulsion, but it is equally a time of reflection on what might be done to stop the bleeding and to acknowledge and celebrate those who are brave enough to say “this far, and no further.”
Tags: European Union, Gaza, Israel, Middle East, Palestinian people, Second Intifada, United States, West Bank