Does International Law Have a Future? – An Analysis (9/11/10)

I. The Usual Suspects

Back on August 23, 2010 Israel’s most prestigious human rights organization, B’Tselem released a short report on the condition of water supplies in the Gaza Strip. Referencing the United Nations Environment Program as well as the Palestine Water Authority, B’Tselem reported that the Strip’s underground water system is in such bad repair that, even if rehabilitation was begun immediately, it would take twenty years for it to be restructured as a modern system. This is compounded by the dilapidated state of the Gaza wastewater-system which is also antiquated. As a result it is estimated that “40% of the incidence of disease in Gaza is related to polluted drinking water.” B’Tselem blames this shocking situation on the Israeli government. “Since it began its siege on the Gaza Strip, in June 2007, Israel has forbidden the entry of equipment and materials needed to rehabilitate the water and wastewater-treatment systems there.” The blockade of these materials remains in place to this day. Finally, during its “Operation Cast Lead” invasion of the Gaza Strip, Israel targeted the water networks, treatment plants, wells, and even home water tanks.

 Israel’s great power patron is the United States. This arrangement entails American protection of the Zionist state from the legal consequences that should result due to its purposeful harming of civilians. The United States, sitting as a permanent member of the UN Security Council has, in recent years, cast some forty vetoes so as to shield its ally from accusations of violations of international law. Actually this action by the United States is entirely logical. Why so? Because both the U.S. and Israel are practicing the exact same tactics against civilian populations. Back in September 2001 George Washington University professor Thomas Nagy revealed the existence of Defense Intelligence Agency documents “proving beyond a doubt that, contrary to the Geneva Convention, the U.S. government intentionally used sanctions against Iraq to degrade the country’s water supply after the Gulf War. The United States knew the cost that civilian Iraqis, mostly children, would pay, and it went ahead anyway.” On May 12, 1996 some of the horrible consequences of this policy were revealed when the CBS news program 60 Minutes reported that roughly half million Iraqi children had died as a consequence of U.S. imposed sanctions. This led to Secretary of State Madeleine Albright’s infamous answer to the question, “is the price worth it?” Her reply was yes “we think the price is worth it.” Albright later apologized, not for the murderous policy for which she was partially responsible, but rather for the fact that her answer to the above question had “aggravated our public relations problems” in the Middle East. As to domestic reaction, her comment “went unremarked in the U.S.” Subsequently, in 2003, the U.S. invaded Iraq using the strategy of “rapid dominance” (more popularly known as “shock and awe”). The object of this strategy was to “paralyze” the enemy’s “will to carry on” through the disruption of “means of communication, transportation, food production, water supply, and other aspects of infrastructure.” One of the targets of the bombing campaign that led off the invasion was Iraq’s electrical grid. That directly impacted the country’s ability to process clean water.
II. Resulting Criminal Status
Neither American nor Israeli behavior is legal under international law. It is all a violation of Article 54 of Protocol I, Part IV, of the Geneva Conventions (1977). The law reads, “It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as …drinking water installations and supplies…whatever the motive whether in order to starve out the civilian population, to cause them to move away, or for any other motive.” What this means is that the political leaders of the United States and Israel (among other countries) who have devised and implemented this, and similar strategies, are indictable as war criminals. Further, they almost certainly know this to be so. That is why they must dismiss international law as “obsolete” as did Attorney General Alberto Gonzales and his minions in 2004. As to “motives” for purposely destroying the civilian infrastructures of whole nations, it would seem that in both cases, that of the United States in Iraq and Israel in Gaza, the aggressors sought to induce the civilian population to either just give up out of exhaustion or turn against the regimes ruling over them.

The assumption that such a strategy will achieve such results is remarkably naive. Historically, it has almost never happened. For instance, despite the massive conventional bombing of British, Japanese and German cities during World War II, the populations rallied around their flags! And so, one can conclude that our present leaders and strategists who pursue such an end through these means simply know no history. This is a good example of a case where ignorance, here leading to massive death and destruction, is a de facto criminal state of mind.
III. The Issue of Double Standards

This state of affairs raises the seminal question of what will be the fate of international law as it applies to the protection of civilian populations? Today, the most we can say is that enforcement is selective and, in a certain odd way, “class based.” In other words if you are the leader of a small state lacking a great power patron you are indeed subject to this sort of international law.  For example, if you are the leader of Serbia, Sudan, Chile, Rwanda, Congo, etc. and persecute civilian populations you have a rather good chance of being brought before a tribunal such as the
International Criminal Court. If, however, you are an American, Israeli, Russian, Chinese or British leader, etc. you have almost zero risk. You know the statue of Justice standing blindfolded holding up a scale? Well, she is peeking.

However, there is an interesting loop hole that can lead us around the problem of double standards. Since the 1990s the concept of universal jurisdiction has gained popularity. This is the legal notion that ordinary people in one country can seek to bring to trial those who allegedly violated public international law in an altogether different country. It is under this law that General Ernesto Pinochet of Chile was detained in England in 1998. Of course, the aged general, who was responsible for the deaths of tens of thousands of his countrymen, was relatively “lower class.” That is, he was the ex-dictator of a country that has no real influence in the international arena and no great power patron. So, he was vulnerable.

What happens when such a law is applied to Americans or Israelis? Well, in 2003 U.S. Defense Secretary Donald Rumsfeld, in what can only be described as an act of imperial blackmail, threatened to remove NATO’s headquarters from the city of Brussels unless “Belgium revoked legislation giving its courts the power to prosecute foreigners for alleged war crimes committed anywhere in the world.” Rumsfeld was reacting against a move by Belgian human rights lawyers seeking the indictment of General Tommy Franks, then commander of U.S. troops in Iraq, for the illegal use of cluster bombs against civilian populations. The Belgian government quickly amended their universal jurisdiction law to meet American demands. Then in May 2010 Israel’s opposition leader Tzipi Livni found that it was inadvisable to visit England because there was an arrest warrant waiting for her. The charge was war crimes associated with the Israeli invasion of Gaza. This attack took place while she was Foreign Minister. Livni was not Pinochet. For one thing she had a great power patron in Washington, and secondly the U.K. itself has a powerful Zionist lobby. The British government quickly announced that it would seek to rewrite the country’s law on universal jurisdiction.
IV. Conclusion
The rules produced by our legislatures, by the United Nations Charter and by our ratified treaties are not supra-human. We make them for our own benefit so that we may live in communities with congenial standards of behavior and thus pass our days productively and in relative security. And, since we make them we can unmake them. That is exactly what too many of our leaders are now trying to do in terms of public international law. They have contrived such double standards that the laws against the wanton slaughter of civilians simply do not apply if committed by the strong. It is only the weak who are to be held accountable for their crimes.

If those in civil society do not like this arrangement they will have to fight hard against it. And here in the West it is our own state institutions and their leaders that we must fight against, for it is they who are the most ardent hypocrites when it comes to international law. It is they who demand immunity for the slaying of the innocent (who they conveniently dehumanize as “collateral damage”). They refuse to go after their criminal predecessors lest they too be held responsible for similar crimes (as in the case of President Obama). Where necessary they bully others into turning a blind eye to their crimes (as with Defense Secretary Rumsfeld). And, if we in civil society, press them hard they will simply seek to change the law to suit their dehumanizing policies. We might here repeat a question once asked, some 94 years ago by a Russian legislator who stood appalled by the bloody slaughter brought on by his government’s strategy during World War I. He asked, “is this stupidity or is it treason?” I will leave the reader to seek his own answer.

 There are so many battles to be fought that one can easily get frustrated and discouraged. In truth, however, they are really all just parts of a larger struggle. They add up to the struggle for humane rules, their universal application, and no double standards. The law must cease to be “class based.” Only then can one approach a less unjust society than our present one. It is really a battle for the type of world we want to live in – our world or theirs.

Palestine and the Fate of the United Nations (An Analysis 12 November 2010)

The United Nations celebrated its 65th birthday (1945 to 2010) on 24 October 2010. At 65 the world body has lasted 27 years longer than its predecessor, the League of Nations (1919 to 1946). Will the UN go another 65 years? To help answer that question a quick look at what did in the League of Nations is in order.
The League of Nations was certainly not a perfect organization, infected as it was with the colonialist notions of its European founders. We can see that aspect of the organization in its mandate system which served as a cover for imperialism. But ultimately the mandate system is not what brought the League low. The fatal flaw was its inability to achieve its primary goal of preventing war by transcending the power of nationalism and compelling all states to end their quarrels through negotiation or arbitration. What success the League did have in this effort was restricted to a category of relatively weak states. For instance, it successfully brought an end to disputes between Columbia and Peru, Greece and Yugoslavia, Finland and Sweden, and even, in 1921, Poland and a very weak Germany. However, when disputes involved aggressive “great” powers, as they did in the 1930s, the League failed utterly. It was ultimately destroyed by its inability to project authority and influence, as well as punishment, on countries like belligerent Italy and resurgent Nazi Germany. As Mussolini observed while, with impunity, using poison gas on the Ethiopians, “the League is very good when sparrows shout, but no good at all when eagles fall out.” He thought of Italy as an eagle.
As the League was founded in response to the First World War, so the United Nations was founded as a response to the Second World War. Where once there was the horror of the trenches, now there was the horror of the Holocaust. Where once there was mustard gas, now there was something much worse, nuclear weaponry. Thus the prevention of war still formed the central and urgent mission of the United Nations. This time around it should have been easier for the new world body. Where the First World War spurred on imperialism, carving up the Ottoman Empire and introducing the facade of mandates, the Second World saw the dismantlement of empires and, finally, the fulfillment of Woodrow Wilson’s promise of self-determination for most of the non-European world. Most, but not everywhere. For at the end of World War II, as the United Nations Charter was ratified and the Universal Declaration of Human Rights proclaimed, the members of the United Nations were coerced into committing a fatal mistake. Under heavy pressure from the United States, the General Assembly gave its blessing to an angement whereby the sin of European and American antisemitism was to be paid for by the Palestinians, a people who had nothing at all to do with Europe’s death camps or America’s death dealing immigration policy. The United Nations blessed the creation of Israel. By doing so it went a long way to assuring its own demise.
It is this background that makes so important, and depressing, the statement made before the General Assembly by Richard Falk on October 20, 2010. Falk is ending his tenure as Special Rapporteur for Human Rights in Palestine. Here are some of the points he made in his address:
1. Throughout his tenure the Government of Israel has been consistently uncooperative, even to the point of refusing him entrance into Israel and the Occupied Territories.
2. The United Nations itself has failed to respond strongly to this challenge to its authority thereby encouraging the view that the world body has not the political will to uphold international law and the principles of its Charter when it comes to the ally of a Great Power.
3. The response of the international community has also been “disappointing.”
4. Falk concludes as follows, “The United Nations will be judged now and in the future by realization of the Palestinian right of selfdetermination, and thereby brings a just peace to both [Israeli and Palestinian] peoples.”

Dr. Saeb Erakat, chief negotiator for the Palestinian Liberation Organization, also spoke about this dilemma in his remarks on the UN’s 65th birthday. He observed that “Israel has undermined the efficacy of and derogated the UN system, the very authority through which it was created.” He then went on to list some of the sources of international law in which Palestinian rights are grounded. These include UN General Assembly resolutions, UN Security Council resolutions, and the Fourth Geneva Convention. All of which Israel has been allowed to violate.

Both Erakat and Falk know that there is virtually no chance that the United Nations can or will even try to force Israel to abide by international law. Whatever its Charter might say, its decision making structure is designed to prevent any challenge to the great powers that have permanent seats on the Security Council. The United States is the great power patron of Israel and has, and will continue, to block efforts to sanction its ally. Thus, like the League of Nations, the UN can deal only with sparrows and but not eagles. It can go after the leaders of Sudan, Serbia and Rwanda, but not those of the United States for its crimes in Iraq, Not China for its crimes in Tibet, not Russia for its crimes in Chechnya, and not Israel for its crimes against the Palestinians or its near fatal corruption of an ancient world religion. It would seem that Israel flies with Mussolini’s eagles.
It is unlikely that the UN will end its days abruptly as did the League of Nations. While Israel does encourage war and mayhem in the Middle East, liking nothing better than to push the United States into a war with Iran, it is unlikely to spark World War III. Thus, it is probable that the United Nations’ fate is to go out with a whimper and not a bang. It will linger on for many decades to come, a tool of the great powers to be used to shoot at sparrows when appropriate.  Ironically, this means the final legacy of the United Nations will be the opposite of its original ideal. Ideally meant to keep the peace and hold all nations to the rule of law, it will stand emasculated as an symbol of the ultimate supremacy of power in the world.

Power has been supreme for a very long time. In the 5th century BC the city state of Athens (alleged birthplace of Western democracy) was fighting the Peloponnesian War. Its naval forces came to the neutral city of Melos and demanded its surrender. The historian Thucydides recounts the ensuing debate in which the Athenians told the Melosians “…we both alike know that in the discussion of human affairs the question of justice only enters where there is equal power to enforce it, and that the powerful exact what they can, and the weak grant what they must.” In our modern day such Machiavellian honesty has fallen out of favor. We need to manage our ruthlessness so as to keep our consciences clear. And that is what the United Nations is for. It will run after the sparrows so that the eagles can feel they have some modicum of justice to point to as they “exact what they can” from those they do treat unjustly. The United Nations has become a cover for great power hypocrisy.
Such is the way of international politics. Do we have to put up with this evil? The answer is no we do not. But we cannot look to any of the great powers for justice, fairness, equity or the like, for theirs is the world of Realpolitik and raison d’etat. Hope, such as it is, lies with civil society. The fortunes of justice, fairness, equity are a function of the ability of citizens worldwide to organize themselves for a specific cause, and the great precedent here is the struggle that brought down apartheid South Africa. This strategy, born of mass communications and the ethical potential of individual consciences, knows no national boundaries and thus has enormous potential. It is presently focused on the condemnable behavior of Israel toward the Palestinians. If, in the next quarter century (for it is likely to take that long), the power of mobilized civil society can bring justice to the Palestinians it will create the possibility for a more humane world in practice and not just in theory. It is an intoxicating prospect. And it is one that has a chance of realization.

Your Reality or Mine? – An Analysis (11 December 2010)

Part I
There is a postmodern position that states “reality is a social construct.” In other words, individuals and groups have their own realities and, according to the postmodernists, one reality is as true as another. Certainly there is more than one way to interpret things. It is because individuals see the world differently and, at least in the American cultural milieu, have such trouble reconciling those views, that U.S. divorce rates run at about 50%. Then there is the inescapable fact that nation states and rival ethnic communities periodically slaughter each other in an effort to disprove the postmodernist assertion that all realities are equal. Thus we see the competition among groups to assert the reality of the powerful as triumphantly more real than all rivals. It is hard to argue with the notion that there are many social, cultural and political “constructs,” each a product of its place and time. However, the notion that all realities are equal can quickly take us into a kind of theater of the absurd. If you want to see what this looks like just take a close look at present day American politics.
Take the issue of climate change. John Shimkus is a Republican member of the House of Representatives from Illinois. He is presently campaigning for the chairmanship of the House Committee for Energy and Commerce. Last year, during a congressional hearing, he asserted that there is no need to be concerned about global warming because after the biblical flood God promised Noah that he would “never again…curse the ground because of man…” Shimkus sees this as “the infallible word of God, and that is the way it’s going to be for his creation.” Well, this is an opinion for sure, but it is also John Shimkus’s “reality.” As such is it the equal to the reality posited by the present scientific consultants of the Environmental Protection Agency? How about the world of John Barton, a House member from Texas who has it in his head that carbon dioxide emissions are not impacting the climate? If someday this gas does have an effect on the environment, Barton tells us not to worry. We will find a way to live with it. After all, according to Barton, man is able to adapt to just about any environment. Again, what is the worth of Barton’s “reality”? Is it equal to the one posited by those scientists keeping track of greenhouse gases? Finally, there is Darrell Issa, a Republican House member from California who soon will be the Chairman of the House Oversight and Government Reform Committee. Issa’s obsession is climate data which, he is sure, has been manipulated by environmentalists seeking the ruin of capitalism. And, he is determined to use his committee’s subpoena power to foil this plot. Representative Issa has his own “reality.” But, beyond his own head,just how real is it?
It is not only with issues such as climate change that American politicians are riding the wave of postmodernism. Foreign policy is also an arena of alternate realities.Texas Republican representative Louie Gohmert took the floor in the House of Representatives last month and stated the following, “I’ve been greatly concerned with the hypocrisy of this [Obama] administration telling Israel ‘just let Palestinians build illegal settlements and take over areas that are not theirs. Just let’em take over.” Mr. Gohmert has his world, his “reality,” but I think we can
say definitively that it is less real to that of a new born Palestinian babe in Hebron.
Then there are all those U.S. politicians whose “reality” includes Iran’s drive for an atomic bomb, and the reality of all U.S. intelligence agency experts who say Iran is doing no such thing. Are they equal? Americans are not the only ones subject to impaired or wholly false “realities.” A recent report prepared for NATO by The International Council on Security and Development revealed that most Afghans in two hotly contested provinces, Helmand and Kandahar, “are completely unaware of the September 11 attacks on the United States and don’t know they precipitated the foreign intervention now in its 10th year.” The report concludes, “the lack of awareness of why we are there contributes to the high levels of negativity toward NATO military operations….” These particular Afghan citizens live in a remote and technologically poor region of the world. This remoteness makes their outlook more understandable than that of all those “modern” Americans cited above. But what about the world inside the heads of the people who prepared the NATO report? If we assume that their conclusions are an accurate picture of how they see reality in this case, we can only conclude that they too, like the Afghans, are suffering from an impaired worldview. It would seem that somehow they have forgotten, or suppressed, the fact that when, after September 11, 2001, “President George W. Bush demanded that Mullah Omar…turn over Osama bin Laden and his lieutenants or face the full brunt of U.S. military might, Mullah Omar asked to negotiate, and Bush refused. Instead, the United States invaded Afghanistan….” The Taliban leader had asked the Bush administration for proof of bin Laden’s involvement in the 9/11 attack and those in the White House, aided by the Pakistanis, could have probably supplied it. However, America’s leaders did not bother. This also is part of the picture that should be given the remote peoples of Afghanistan so as to make their notion of what is real more complete. Thus, the reality of the Afghans of Halmand and Kandahar is different than that of the NATO commanders and their consultants. Are they equal? And, are either truly real?
Part II
The above examples are from our immediate past, but there are similar ones in our immediate future. For instance, we can look forward to a new Israeli “advocacy campaign” scheduled for western Europe early in 2011. The Israeli Foreign Ministry under the leadership of the Avigdor Lieberman, a man whose notion of reality is quite openly racist, has instructed Israeli embassies in all major western European capitals to hire “professional advocacy and public relations experts” as well as to recruit up to one thousand local Zionists per country to promote Israel’s official view of “reality” in the Middle East. This comes after a relatively successful effort by both Israel and the United States to suppress the picture of reality put forth in the UN’s Goldstone report. The Israeli picture of Middle East reality, and its role therein, has been eroding in the minds of many Westerners. That is why this effort is being made. The source of the erosion is the demonstrable difference between Israeli behavior and Israel’s publically promoted image of reality. As long as the gap between these two is a yawning one, the Israeli effort to restructure reality for the citizens of Europe is likely to be no more than a rear guard action. On the other hand, one should not underestimate the impact of such efforts. Public relations campaigns, advertising, and the like obviously do work. They are capable making you passionate about new cars and new clothes, and they are capable of making you a supporter of the invasion of Iraq because you are convinced Iraqi WMDs are real.
Part III
We all live lives that are relatively local and in terms of an understanding of outside (foreign) events we rely on the reports of others. That means, except for our immediate experience, our realities are heavily influenced by our media environment. That environment might entail serious and objective research or it may consist of daily doses of Fox TV. In either case that, in part, is how the universe inside our heads comes about and it, in turn, motivates our behavior. The whole process can bring us down to earth or send us into the realm of fantasy. In the end we are confronted with two problems. One is that there are people who do occasionally attain power whose private realities are fantasy driven. As noted above, the House of Representatives seems to have an increasing number of such people. The second problem is that, unlike the postmodernist claim that we are all living in equally valid private realities, most individual realities are not private at all. They are instead the artificial creations of a manipulated information environment brought to us by way of the government and its allied media. And both of these problems are sure to lead to on-going tragedy.