Author: Richard Falk

Assessing the United Nations After the Lebanon War of 2006

Of course, we all breathe a bit easier with the news of a ceasefire in Lebanon even if its prospects for stemming the violence altogether are not favorable at this time. And after dithering for 34 days while the bombs dropped and the rockets flew we need to acknowledge that the United Nations, for all of its weaknesses, plays indispensable roles in a wide array of international conflict situations. It is notable in this instance that despite Israel’s discomfort with UN authority, and the reluctance of the United States to accept any UN interference with its foreign policy priorities, as in Iraq, both countries were forced to turn to the UN when Israel’s war against Lebanon ran up against the unexpectedly strong Hezbollah resistance. At the same time this is certainly not a moment to celebrate the UN for fulfilling its intended role as dedicated to war-prevention and the defense of states victimized by aggression. Perhaps, it is an occasion to take stock of what to expect from the UN in the early part of the twenty-first century, concluding that the Organization can be regarded neither as a failure nor as a success, but something inbetween that is complicated and puzzling.

After World War II a mood of relief that the war was over was mingled with satisfaction (that the German and Italian fascism and Japanese militarism were defeated) and worry (that a future major war might well be fought with nuclear weapons, and even if not, that military technology was making wars more and more devastating for civilian society). One hopeful response was the establishment of the United Nations on the basis of a core agreement that recourse to force by a state, except in cases of strict self-defense was unconditionally prohibited. This norm was supposed to be supplemented by machinery for collective security intended to protect victims of aggression, but this undertaking although written into the UN Charter has never been implemented.

The victorious countries in World War II plus China were designated as Permanent Members of the UN Security Council and given the right to veto any decision. The intention here was to acknowledge that the UN could not hope to ensure compliance with international law by these dominant states, and to avoid raising expectations too high it was better to acknowledge this deference of ‘law’ to ‘power’ restricted the role of the UN. But what was not anticipated in 1945, and has now again damaged the reputation of the UN, was the realization that the Organization could serve as an instrument for geopolitics in such a way as to override the most basic restraints on war making built into the UN Charter, but this is exactly what happened in the context of Israel’s war on Lebanon.

The UNSC stood by in silence in the face of Israel’s decision to use the pretext of the July 12th border incitement by Hezbollah, involving only a small number of Israeli military personnel, to launch all out war on an essentially defenseless Lebanon. A month of mercilesxs Israeli air attacks on Lebanese villages and cities has taken place, while the UN refused even to demand an immediate and total ceasefire to the obvious dismay of the UN Secretary General, Kofi Annan. And even this benchmark is indicative of just how low expectations have fallen with respect to UNSC action when there exists any serious friction between the UN Charter and the policy priorities of the United States as the controlling member of the Organization. It should be recalled that it was the US Government that declared the UN ‘irrelevant’ in 2003 when the Security Council at least stood firm, and refused to authorize an unlawful invasion of Iraq. With Iraq, too, the experience, more than anything else, underscored the fallen expectations associated with the UNSC. It was then applauded for not mandating aggression against Iraq, but when the invasion went ahead anyway in March 2003, the UNSC was complicit with aggression by way of silence, and went even further later on, acting as a junior partner in the American-led occupation of Iraq. The point being stressed is that the UN is unable to prevent its Permanent Members from violating the Charter, but worse, it collaborates with such violations in support of its most powerful member. The UN has become in these situations, sadly, more of a geopolitical instrument than an instrument for the enforcement of international law. This regression betrays the vision that guided the architects of the UN back in 1945, chief among whom were American diplomats.

It should be also recalled that when German and Japanese surviving leaders were criminally punished after World War II for waging aggressive war at the Nuremberg and Tokyo trials the prosecutors promised that the principles of law applied to judge the defendants associated with the defeated countries would in the future we applicable to assess the behavior of the victorious power then sitting in judgment. This Nuremberg Promise has been long since forgotten by governments, but it should not be ignored by public opinion and citizens of conscience everywhere.

Nothing illustrates this fallen condition of the UN better than the one-sided UNSC Res. 1701 ceasefire resolution finally approved by unanimous vote on Aug. 11th. This resolution, although in some respects a compromise that reflects the inconclusive battlefield outcome, is tilted in many of its particulars to favor the country that both wrongfully escalated the border incident and carried out massive combat operations against civilian targets in flagrant violation of the law of war: Res. 1701 blames Hezbollah for starting the conflict; it refrains from making any critical comment on Israeli bombing and artillery campaign directed at the entire country of Lebanon; it imposes an obligation to disarm Hezbollah without placing any restrictions on Israeli military capabilities or policies; it places peacekeeping forces only on Lebanese territory, and is vague about requiring the withdrawal of Israeli armed forces; it still fails to censure Israel for expanding the scope of its ground presence in Lebanon by 300% to beat the ceasefire deadline, and it calls for the prohibition of ‘all’ attacks by Hezbollah while requiring Israel only to stop ‘offensive military operations,’ leaving the definition of what is offensive in the hands of policymakers in Tel Aviv and Washington.

We learn some important things about the United Nations from this experience. First, it is incapable of protecting any state, whatever the circumstances, that is the victim of an aggressive war initiated by the United States or its close allies. This incapacity extends even to proposing resolutions of censure. Secondly, the UNSC, while not actually supporting such claims of aggressive war, will collaborate with the aggressor in the post-conflict situation to ratify the effects of the aggression. This combination means effectively that the Charter prohibition directed at non-defensive wars applies only to enemies of the United States. Any legal order that achieves respect treats equals equally. The UN is guilty of treating equals unequally, and thus constantly undermines its own authority.

There is another disturbing element that concerns the manner in which states aligned with the United States are using force against non-state actors. Such states, of which Israel is a leading example, engage in what a law commentator, Ali Khan, has called ‘punitive self-defense.’ UN Charter Article 51 deliberately tried to restrict this option to claim self-defense by requiring ‘a prior armed attack,’ which was definitely understood, as being of a much more sustained and severe initiation of violent conflict than an incident of violence due to an isolated attack or a border skirmish. More concretely, the events on the borders of Gaza and Lebanon that gave rise to sustained Israeli war making did not give Israel the legal right to act in self-defense, although it did authorize Israel to defend itself by retaliating in a proportionate manner. This distinction is crucial to the Charter conception of legitimate uses of international force.

What punitive self-defense means is a deliberate policy of over-reaction such that there is created a gross disproportion between the violence inflicted by the non-state actor, in the Lebanese instance, Hezbollah, and the response of the state actor Israel. It also means, contrary to the UN Charter and international law, that every violent provocation by a non-state actor can be treated as an occasion for claiming a right to wage a full war based on ‘self-defense.’ This punitive approach to non-state adversaries completely negates a cardinal principle of both international law and the just war tradition by validating disproportionate uses of retaliatory force.

This discouraging interpretation of what to expect from the United Nations in war/peace situations should not lead to a cynical dismissal of the Organization. We need the UN to step in, as in Lebanon, when the arbiters of geopolitics give the signal, and help with the post-conflict process of recovery and reconstruction. But we should be under no illusions that this role adequately carries out the vision of the UN contained in its own Charter or upholds the most basic norms of international law.

How can this situation be improved? There are three areas of effort that are worthy of attention:

–perhaps, most important, is the recognition by major states that war is almost always a dysfunctional means of pursuing their security interests, especially with respecte to addressing challenges posed by non-state actors; in this regard, odd as it may seem, adherence to the limits imposed by international law may serve national interests better than relying on military superiority to override the restrictions on force associated with the UN Charter; note that the United States would have avoided the worst foreign policy disasters in its history if it had not ignored these restrictions in the Vietnam War and the Iraq War; in their essence, limiting war to true instances of self-defense is a practical restriction on state sovereignty agreed upon by experienced political leaders;

–of secondary importance is for the members of the United Nations to take more seriously their own obligations to uphold the Charter; it may be appropriate in this spirit to revive attention to the so-called Uniting for Peace Resolution 337A that confers a residual responsibility on the General Assembly to act when the Security Council fails to do so; this 1950 resolution was drafted in the setting of the cold war, with an intention to circumvent a Soviet veto, but its use was suspended by the West in the wake of decolonization, which was perceived as making the General Assembly less supportive of Western interests than had been the case in the early years of the UN; in present circumstances, the General Assembly could be reempowered to supplement the efforts of the Security Council where an urgent crisis involving peace and security is not being addressed in a manner consistent with the UN Charter; along similar lines, would be an increased reliance on seeking legal guidance from the International Court of Justice when issues of the sort raised by the Israeli escalation occurred;

–and finally, given these disappointments associated with the preeminence of geopolitics within the UN, it is important for individuals and citizen organizations to act with vigilance. The World Tribunal on Iraq, taking place in Istanbul in June 2005, passed ‘legal’ judgment on the Iraq War and those responsible for its initiation and conduct. It made the sort of legal case that the UN was unable to make because of geopolitical considerations. It provided a comprehensive examination of the policies and their effects, and issues a judgment with recommendations drafted by a jury of conscience presided over by the renowned Indian writer and activist, Arundhati Roy. Such pronouncements by representatives of civil society cannot obviously stop the Iraq War, but they do have two positive effects: first, they provide media and public with a comprehensive analysis of the relevance of international law and the UN Charter to a controversial ongoing war; secondly, by doing so, they highlight the shortcomings of official institutions, including the United Nations in protecting the wellbeing of the peoples of the world.

Richard Falk is chair of the Nuclear Age Peace Foundation board and Professor Emeritus of International Law and Practice at Princeton University and Distinguished Visiting Professor at the University of California at Santa Barbara

August 16, 2006
Lurching Toward Regional War in the Middle East

Israeli moves toward all out war in Gaza and Lebanon seem linked to wider dangers of a regional war with severe global consequences. By interpreting these wider dangers it is not meant to minimize the human suffering and regressive political effects of current carnage in these two long tormented war zones. Looking at this bigger picture is crucial for its own sake, but also helps us understand the immediate crises more fully than if as officially presented by Israel, and unfortunately echoed by many governments around the world.

Whatever else, this outbreak of major two-front violence is not about Israel’s right to defend it against an enemy that is seriously threatening its territorial integrity or political independence, the only grounds for justifiable war. To treat border incidents, involving a few casualties from rockets and the abduction of a single Israeli soldier by a Gazan militia and two by Hezbollah in south Lebanon, as if it were an occasion of war is a gross distortion of well-accepted international law and state practice. To justify legally a claim of self-defense requires a full-scale armed attack across Israeli borders. If every violent border incident or terrorist provocation were to be so regarded as an act of war, the world would be aflame. If India had responded to the recent Mumbai train explosions that killed some 200 Indian civilians as a Pakistani act of war, the result would have been a devastating regional war, quite possibly fought with nuclear weapons. There are many other flashpoints around the world that might justify police methods in reaction to provocations, and in extreme instances, specific military responses across borders. If such occasions were viewed as acts of war the consistent result would be catastrophe. Recent Hamas/Hezbollah provocations, even if interpreted through a self-serving Israeli lens, were not of a scale or threat that warranted large-scale military actions that are directed at a wide array of targets unrelated to the specific incidents and causing severe damage to civilians and the entire civilian infrastructure of society (water, electricity, roads, bridges).

The exaggerated Israeli response, together with circumstantial evidence, suggests that Israel used the Hamas/Hezbollah incidents as pretexts to pursue a much wider and long-planned security agenda directed at Palestine and Lebanon and, beyond this, as an opportunity for a political restructuring of the entire region in partnership with the United States. In this regard, as George W. Bush’s comments at the St. Petersburg G-8 summit emphasized, the real responsibility for the anti-Israeli incidents should be associated with Syria and Iran given their support of Hamas and Hezbollah. It does require a deep reading of international relations to recall that both right wing Israeli opinion and the neoconservative worldview that has dominated American foreign policy during the Bush presidency advances a vision of world order based upon a comprehensive political restructuring of the Middle East, starting with “regime change” in Iraq.

What Israel is undertaking is a change of tactics with respect to the pursuit of this regional vision. The initial plan seems to have been based on a decisive military and political victory in Iraq followed by an essentially diplomatic campaign to exert major pressure on other problematic governments in the region, relying on The Greater Middle East Project of “democratization” to do the heavy lifting without further military action. Instead, what has occurred has been failure and frustration in Iraq, which has turned into an American quagmire, but more seriously, a consistent set of electoral outcomes throughout the region that have discredited a political approach to the regional vision embraced by Washington and Tel Aviv with the goal of achieving compliant Arab governments that are passive with respect to Palestinian aspirations and accepting of American hegemony. These geopolitical disappointments began to be revealed in the Iraqi sequence of elections, which even under conditions of the American occupation and a hostile resistance, produced clear victories for Islamic political forces and stinging repudiations of the sort of compliant secularists that Washington backed. Similar outcomes, with less dramatic results, were evident in elections held in Egypt and Saudi Arabia, which together with the election of Mahmoud Ahmedinejad as President of Iran, apparently sent a clear message that the more democratic the political process, the more likely it was to produce an anti-American, anti-Israeli leadership. The Hamas victory in the January elections in the Palestinian Territories culminated this disillusionment with the democratic path to security, as envisioned by Israel and the United States, for the region.

But rather than abandon geopolitical ambitions, it appears from recent developments that Israel is testing the waters for all out regional war, either with covert encouragement from the US Government, or at the very least, a green light from Washington to ignite a bonfire. Of course, there are other factors at work. The Israeli leadership, especially its military commanders, never accepted being pushed out of southern Lebanon by Hezbollah, and the politicians appear to hold the Palestinian people responsible for the election of a “terrorist” leadership and, thus, deserving of punishment. Furthermore, the anti-Syrian Lebanese response to the assassination of Hariri on February 14, 2005 was hoped to result in a more robust Lebanese political leadership that would effectively disarm Hezbollah and, thereby, enhance Israeli security. When this did not happen, but rather Hezbollah acquired more potent weaponry, as well as a place in the Lebanese cabinet, it was obvious that the soft Israeli option had failed. Even such a prominent mainstream supporter of Israel as Shlomo Aveneri observes that the real objective of the Israeli attacks on Lebanon is to install a Quisling government in Beirut, which was after all the main objective of the 1982 Sharon-led invasion of the country.

In relation to the Palestinian conflict, Israel has set for itself a unilateralist course ever since the collapse of the Camp David process in 2000. The Sharon approach, based on Gaza disengagement, the illegal security wall, and the annexation of substantial Palestinian territories to incorporate the main Israeli settlements was always based on moving toward a “solution” without the agreement of the Palestinian leadership. But to move in such a direction in a politically palatable manner required the absence of a Palestinian negotiating partner. First, Arafat was humiliated by direct military attacks on his headquarters and confined as to virtual house arrest; then Abbas was marginalized as too weak to carry weight; and now Hamas has been repudiated as unfit to govern the Palestinians or represent their interests. Against this background, Sharon/Olmert unilateralism appears to be the only option, a worrisome conclusion as it is sure to keep the conflict at boiling point for the indefinite future.

A further factor is the confrontation with Iran over its nuclear program. Here again Israel and the United States are at the forefront of an insistence that Iran not pursue its legal right to possess a complete nuclear fuel cycle under its sovereign control, although subject to inspection by the International Atomic Energy Agency to ensure that enriched uranium and plutonium are not diverted for military purposes. Whether this unfolding crisis, abetted by the inflammatory language of Ahmedinejad, is part of a deliberate strategy of regional tension devised by Washington and Tel Aviv cannot be determined at this point. What is clear is the selective enforcement of the nonproliferation regime. Several parties to the Non-Proliferation Treaty (Germany, Japan) have complete nuclear fuel cycles under national control; India is being assisted in developing its nuclear technology despite its nuclear weapons program and refusal to become a party to the treaty; Israel itself disallows a nuclear weapons option to other states in the region while maintaining and developing its own arsenal of these weapons; and, of course, the United States throws its nuclear weight around, including developing new categories of nuclear weapons (“bunker-busters” and “mini-nukes”) that are apparently being integrated into battle plans for possible future use.

This adds up to a confusing picture, but with clear threats of a regional war spiraling out of the present situation, given the Israeli/American vision of security, and the degree to which the control of this region is vital for the energy future of the world as well as decisive in the struggle to withstand the challenge of political Islam.

There are some factors that are working against such a dismal future: the political/military failure in Iraq, the devastating economic effects of engaging Iran in a war, the rising oil prices, and the opposition of European and Arab countries. But can we be reassured at this point? I think not. Israel tends to view its security ambitions in unconditional terms that are oblivious to wider detrimental consequences. The United States leadership remains wedded to its grand strategy of regional restructuring, and is not encountering political opposition at home or even media criticism as a result of either its support of the Israeli offensives in Gaza and Lebanon or of its efforts to widen the arc of conflict by pulling Syria and Iran into the fray. I fear that what we are witnessing is an extremely risky set of moves to shift the joint Israeli/American regional game plan in an overtly military direction. It always had a military centerpiece associated with the Iraq War, but the basic strategy was based on an easy show of force against a weakened Iraq followed by falling political dominoes elsewhere in the Middle East. Neither the UN, world public opinion, nor regional opposition seem likely to halt this slide toward regional war. We can only hope that prudence somehow remains a restraining force, at least in Washington.

In concluding, it is obvious that there are wider implications for other countries in the region, especially those faced with ethnic conflict and transnational armed struggle. As tempting as it might be to follow Israel’s lead, the prudent course, especially in light of these dangers of regional war, is to be extremely cautious about undertaking cross-border military operations. The Israeli policies have already backfired to a significant extent, strengthening the political stature of Hezbollah with Lebanon and causing Lebanese public opinion to unite around criticism of Israel’s behavior.

Richard Falk is the Board Chair of the Nuclear Age Peace Foundation, and professor emeritus of Princeton University.

July 18, 2006
An Alternative to Iraq Delusions

The American public needs to force its leaders to act before the Iraq war becomes even more a replica of the Vietnam tragedy.

When United States Congressman John Murtha made his passionate speech on 17 November calling for the withdrawal of US forces from Iraq within six months, it seemed for an instant as though the public mood had swung so strongly against the Iraq policies of the Bush administration that to hope for a change of course wasn’t unrealistic.

A month on, any such hopeful prospect of addressing the realities of Iraqi failure has now vanished beneath a presidential sky beclouded by tired reiterations of an utterly unconvincing “plan for victory”. Indeed the rededication to “complete victory” recalls the May 2003 delusion of “mission accomplished” proclaimed on a banner draped in the background while Bush delivered his notoriously premature speech of celebration on the deck of the USS Lincoln.

Murtha’s ideas were the reflections of a foreign-policy hawk that had the integrity and prudence to cut American losses in Iraq, and thereby diminish the prospects of a deeper tragedy. The timetable of his basic proposal could be faulted, but not the principle. I think a year makes more sense, to give time to the main Iraqi political forces to take account of the US departure and strike a deal based on compromise and reconciliation. As long as American forces remain, the imbalances between the main groupings in Iraq — especially the privileged positions of the Kurds and Shi’a — virtually guarantee a prolonging, and even an escalation, of the violent civil strife.

A time of radical uncertainty

Present indicators of violence suggest a rising curve of death and devastation, not, as the White House and Pentagon constantly claim, an increase in domestic security. The more reliable polls also suggest that average Iraqis are desperate above all for security in their daily lives, and feel overwhelmingly that their situation would improve if American forces were to leave the country.

Such an outlook makes sense. Without the protection of an occupying army the Kurds and Shi’a would likely succumb to the insurgency, but if the foreign military presence were to be gradually removed, the incentives for those now benefiting from the occupation to strike a political/economic bargain would rise dramatically. As it would for the Sunni as well, if their alternatives were a fair share of authority and a secular governing process versus a civil war that might result in either a stalemate or an Iranian intervention, and possibly in a combination of the two.

American policy prospects are also enhanced by an unconditional military departure. It would be widely regarded in Europe and the Middle East as a constructive, if belated, move that gave both peace and diplomacy a chance, and clearly renounced imperial goals relating to oil and bases, which are widely believed overseas to be the main rationale for “staying the course”.

If Iraqi political tendencies can deliver a sustainable compromise, it would save lives, money, and reputations. If the Iraqi domestic situation should further degenerate as US forces withdraw — which cannot be ruled out — it is likely to produce a return to secular, authoritarian rule under Sunni leadership (most likely without the Tikrit entourage of Saddam Hussein), which would likely keep Iraq unified and stable, though certainly not democratic. This outcome can be anticipated if negotiation and compromise fail, as there is little reason to believe that either the Kurds or Shi’a can prevail against an insurgency that draws on the superior experience and weaponry of the Ba’ath-led military forces of the Saddam era.

There is no way to avoid the radical uncertainty of the situation. It was after all Donald Rumsfeld (characteristically assimilating Iraq into a wider frame of reference and thus failing to register the particularity of its conflict) who acknowledged in October 2003 that the US government “(lacks) metrics to know if we are winning or losing the global war on terror”. Not surprisingly, such a revealing acknowledgement was made in a secret internal Pentagon memo, and conflicted rather sharply with Rumsfeld’s public posturing portraying a rosy picture in Iraq after the invasion marred only by the nuisance of mopping up what he once called “the dead-enders”. What remains true and crucial to admit on all sides is that offering recommendations and speculating about Iraq’s future is afflicted by this condition of radical uncertainty: we simply do not know what will happen in the future in Iraq, and can only make reasonable conjectures based on the circumstances understood as objectively as possible.

It is here where the Bush administration is again failing the American and Iraqi people – and in a sense, itself. Leaving aside the pre-invasion manipulation of evidence in the mobilisation of support for the war, what seems now inexcusable is to falsify the current situation on the ground. To pretend that the occupation is succeeding, that the majority of the public in Iraq is satisfied with the rate of progress in achieving stability and reconstruction, and that democracy is taking hold in the country is to become enmeshed in a net of delusion that rigidifies policy, and precludes adjustments, except those made below the radar of media awareness.

For instance, a gradual transfer of security roles to Iraqi military and police forces without an appreciation of the virtual certainty that these forces will lack the will and capabilities to deal effectively with a resistance movement that a major US military presence and engagement could not defeat. Even worse would be efforts to reduce American combat fatalities by relying more and more on airpower, which in urban settings is a blunt and illegal instrument that is sure to kill mainly civilians and would further turn Iraqi public opinion against the US presence.

We know that Bush/Cheney seem incapable of admitting errors and changing course. Bush seems to be proceeding apolitically, buoyed by his apparent underlying belief that his victory plan for Iraq is divinely ordained. We also know that the Pentagon has been planting disinformation in the Iraqi press by paying Iraqi journalists and newspapers to print US propaganda (we in the United States can only wonder whether we are not being fed similar falsehoods manipulations at home, presumably by more sophisticated techniques.)

The echo of Vietnam

In such a public atmosphere of distrust — what was called “a credibility gap” during the last stages of the Vietnam war — wildly contradictory views get a hearing. For instance, Nixon’s Secretary of Defence, Melvin R Laird believed that the United States lost the Vietnam war only because it did not appreciate the success of its tactics of Vietnamization and counterinsurgency, and risks repeating the same mistake in Iraq. Such a reconstruction of historical memory amounts to resurrection of the credibility gap, a retelling of the story of Vietnam, where victory was always a horizon away, and required only perseverance and added troop strength (see “Iraq: Learning the Lessons of Vietnam”, Foreign Affairs, November-December 2005).

Dangling the prospect of victory before the American public after the Tet offensive of January-February 1968 prolonged the Vietnam war for as many as seven blood-soaked years after most US policymakers privately understood that the war was lost. We should act now in order to avoid repeating in Iraq the Vietnam-era mistake of waiting year after year for a leadership willing to acknowledge defeat.

There is no assured path toward peace and stability for Iraq. But there is accumulating evidence that the occupation is not succeeding in producing a viable Iraqi state, and is now resting its prospects for a democratic Iraq on a highly regressive constitution that among other things sets things back for women far below what it was during Saddam’s brutal rule. It is also clear that the daily incidents of violence are adding to casualty totals in an environment where a favorable political outcome under American occupying auspices is even less plausible than it was a year or so ago. Whatever else, under these overall circumstances it is obscene to continue the killing and dying.

Richard Falk, chair of the board of the Nuclear Age Peace Foundation, is the author of Religion and Humane Global Governance (Palgrave), The Great Terror War (Olive Branch), and most recently, The Declining World Order (Routledge). Since 2002 he has been Distinguished Visiting Professor of Global Studies at UC Santa Barbara.

December 17, 2005
Ending the Iraq War
The American debate on the Iraq War has entered a dramatic new phase. For the first time, a prominent Democrat, Congressman John Murtha, has called for a withdrawal of American forces from the country. Murtha’s words have had a major impact because he was a former supporter of the war, and has had a career distinguished by his consistently pro-military profile. His argument is based on the inability to complete the American military mission in Iraq, making inexcusable the continued killing and loss of life. He also refers to the adverse effects of the unpopular and flawed occupation of Iraq on the wider goals of opposing global terrorism and to the failure of American reconstruction efforts. Murtha’s critique is widely shared by a majority of Americans at this point, and helps explain the declining popularity of the Bush presidency.

But there is no sign that these developments, even in the face of a rising crescendo of violent incidents and high casualties, will bring a rapid end to the Iraq War. President Bush keeps reiterating his resolve ‘to stay the course,’ to do whatever is necessary to prevail in Iraq. A Republican-controlled Congress, although increasingly restive about the war, is not yet likely to break with the president, and withhold appropriations or mandate an exit strategy that calls for a definite end to the war. Unlike Vietnam, which looks more and more like a precursor to Iraq, the strategic stakes are high. The efforts to pretend that the outcome of Vietnam was strategically important because of ‘falling dominos’ in the region was never convincing, and the only strong argument for American forces remaining was the alleged prospect of a bloodbath in the aftermath of an American departure, a nightmare scenario that never materialized. But in Iraq there are major strategic stakes: oil, non-proliferation, the impact on Turkey and Iran, the containment of radical Islam, anti-terrorism, the security of Israel, regional security politics.

And so the puzzle posed is how to end the Iraq War without further and too seriously jeopardizing these strategic concerns. The solutions being proposed in the American political mainstream are not convincing: wait until the Iraq military can bring stability to the country, which seems like waiting for Godot; transfer the foreign security role to NATO in the manner of the Kosovo War, which reduces the American role by no more than a tiny percentage; reduce the American presence, but sustain the mission. These supposed solutions are disguised recipes for prolonging the futility of the war, and invitations for terminal disaster. It should be remembered that years after the American leadership realized that the Vietnam War was lost, the dying and killing continued, because the US Government insisted that it could find victory by political maneuver after acknowledging privately its inability to pacify the country by military occupation. As we know, when withdrawal finally came in 1975, it was humiliating, with a total exhibition of defeat, epitomized by helicopters lifting former Vietnamese collaborators with the occupation from the roof of the American Embassy. There is no way to transform the military defeat in the occupation phase of the Iraq War into a political victory. No way, and the sooner the illusion of magic rabbit is recognized for what it is the better the prospects for an effective end to the Iraq War before all room for diplomacy disappears.

Earlier in Iraq, the US Government had confused military victory with a political victory. Bush’s famous speech on the American aircraft carrier, USS Abraham Lincoln, of May 1, 2003, with the banner behind his podium reading ‘mission accomplished,’ was the extreme version of this miscalculation. Again as the Vietnam experience should have made clear, when confronting a nationalist adversary, battlefield victories are difficult, if not impossible to translate into favorable political outcomes. The bloody occupation of Iraq has confirmed this lesson, dramatizing the limits of military superiority in wars associated with foreign occupation, especially of a country previously colonized.

Understanding what has failed in the past and is unlikely to succeed in the present, is not enough. Without a positive alternative the blame game leads no where. In my view such an alternative does exist, although it contains big risks and like every proposed line of future policy in Iraq is enmeshed in uncertainty. We cannot know the risks of alternative lines of policy with any precision, but we can do what seems right under the circumstances, and appears to have the best prospect of stopping the bodies from piling up. In a key respect, Rumsfeld was right when a couple of years ago he wrote in an internal Pentagon memo that we lack ‘a metric’ for determining whether we are winning or losing the war against terror inside Iraq or in the world as a whole. Such an acknowledgement should suggest humility on all sides, but especially on those who in the face of such doubts, go on with a war that has had such disastrous human and political results. In law, morality, and politics we should all endorse a strong presumption against war as an instrument of policy.

I would propose several steps that together constitute a plan, or at least an approach, that moves toward hope for the future; in important respects what I am suggesting reinforces the Murtha resolution that is now before Congress:
- a clear statement by the US Government that it intends to withdraw completely from Iraq and renounces all plans to build permanent military bases;
- a timetable for withdrawal of US forces that calls for the complete phasing out of the American (and coalition) presence within one year;
- a defensive military posture adopted immediately; American forces in Iraq will only attack if attacked from now on;
- private and public encouragement of Iraqi forces to pursue a diplomacy of compromise and reconciliation as an alternative to prolonged civil war;
- diversify the effort at economic and social reconstruction to the extent possible, including seeking a new role for the United Nations acting with full independence of the American occupation;
- encourage regional initiatives that include Turkey, Iran, as well as Arab countries, that explore peacekeeping and political contributions to the post-occupation transition;
- affirm an American and British commitment to the unity of Iraq;
- exert greater pressure to end the Israeli occupation of Palestinian territories, and move toward a solution of the conflict that recognizes the legal rights of the Palestinian people and the necessity of peace based on equality and mutual respect.
In the end, this approach has no chance of becoming operative without a major mobilization of anti-war opinion in the United States, reinforced by the expression of similar sentiments throughout the world, and on the part of regional leaders in the Middle East. Without a great heightening of anti-war activism, the war will drag on until a hasty terminal process is adopted in a spirit of desperation. What I am advocating is a comprehensive rethinking of American regional goals and behavior, with a fair chance that the results are likely to be more positive than can be realistically anticipated. My reason for guarded optimism is the sense that when the American protective shield is unmistakenably removed, Kurds and Shi’ia will find themselves under great pressure to reconcile with Sunni elements in Iraq, or face a continuing insurgency, possibly a full-scale civil war, that they would almost certainly lose. On the Sunni side, as well, the incentive of avoiding such prolonged civil strife would create important pressure to reconcile as Sunnis too would be confronted by dissident nationalisms that can no longer be squashed in the post-Saddam era. As long as the US occupation persists, the elements in Iraq that are benefited have no reason to compromise in a manner that is acceptable to the Sunnis. Of course, the ethnic composition of Iraq is more complex than this, and the faultlines of conflict are not only identified by reference to Kurds, Shi’ites, and Sunnis, but these divisions have a definite geographic foundation, and have been deepened by the faulty politics of the American occupation.

The situation in Iraq has deteriorated to a point that there is no assured exit strategy that is not beset by dangers, but at least these dangers raise hopes that a different path can be taken. By remaining on the Iraq War path, now so suddenly discredited, all we know is that the bodies will keep piling up!

Richard Falk, chair of the board of the Nuclear Age Peace Foundation, is the author of Religion and Humane Global Governance (Palgrave) and, most recently, The Great Terror War (Olive Branch). He is currently visiting professor of global studies at UC Santa Barbara.
November 15, 2005
The Abandonment of International Law After 9/11

Presentation to the Congressional Black Caucus Annual Legislative Conference 2005, Washington Convention Center, 801 Mt. Vernon Place, Washington D.C., September 21-24, 2005.

The US Government has long adopted double standards when it comes to respecting international law, especially in the setting of national security issues. It promotes a generalized respect for the Rule of Law in world politics, is outraged by violations of international law by its enemies, and chooses selectively when to comply and when to violate. This pattern goes far back in American history, but it is convenient to take note of American violations of international law in the setting of the Vietnam War, as well as periodic interventions in Central and South America. I would argue that this pattern has long harmed America’s global reputation and capacity for leadership, as well as worked against its own national interest.

It seems clear that the United States, and the American people, would have benefited over the years from a foreign policy carried out subject to the discipline of international law. If the US Government had abided by international law, the dreadful experience of the Vietnam War would not have occurred. More recently, an observation that will be discussed further below, upholding international law would have avoided the fiasco of the Iraq War. Contrary to popular belief, respecting the restraints of international law better serves the national interest than does an attitude, so prevalent since 9/11, that international law poses inconvenient obstacles on the path toward national security.

It is important to understand that the restraints of international law have been voluntarily developed by sovereign states to protect their interests and values. Their intent is practical. It reflects the wisdom of centuries of diplomacy. International law is of particular importance in relation to uses of force in the course of foreign policy, and more generally issues relating to security, especially war and peace. The US Constitution declares in Article VI(2) that duly ratified treaties are ”the supreme law of the land.” This puts the key rules and principles of international law on a par with Congressional acts. The Supreme Court has ruled that in the event of an unavoidable clash between these two sources of legal authority, the last in time should prevail.

Let me make the general point more strongly. In a globalizing world of great complexity it is in the interest of all states, large and small, that their relations be reliably regulated by international law. This observation underpins the daily operations of the world economy and many other aspects of international behavior, including maritime safety, environmental protection, tourism, immigration, disease control. The stability of international life depends on a closely woven fabric of law as the basis for almost all activity beyond the borders of a sovereign state.

What is a cause for deepest current worry is that the United States has seemed to abandon this understanding of the relevance of law to the establishment of world order. This concern is not entirely new. It runs throughout the entire course of American history, but it has taken a serious turn for the worse during the Bush presidency, especially in the aftermath of the 9/11 attacks. Even prior to the attacks, the foreign policy of the Bush administration disclosed its disdain for widely respected international treaties. The Bush White House contended that existing and pending treaties limited its military and political options. In the early months of the Bush presidency it announced its opposition to the Comprehensive Test Ban Treaty prohibiting nuclear weapons testing, its unwillingness to submit the Kyoto Protocol regulating greenhouse gas emissions, defiantly withdrawing its signature from the Rome Treaty seeking the establishment of the International Criminal Court, and its intention to withdraw from the Anti-Ballistic Missile Treaty. Such a pattern of unilateralist hostility to international treaties and multilateral cooperation was unprecedented in American history. It led to a strong negative reaction at home and abroad. Normally friendly governments were clearly alarmed by this internationally disruptive behavior of the new American president. The repudiation of widely endorsed multilateral treaty arrangements that were generally viewed as important contributions to a peaceful world seemed contrary to common sense, as well as to the general wellbeing of the peoples of the world. These expressions of unilateralist approach did not involve violating existing international law, but rather expressed the ultra neoconservative attitude that multilateral cooperation in the security area was undesirable, limiting the capacity of America to take advantage of its status as the sole remaining superpower in the aftermath of the Cold War.

Congress is also not exempt from blame on these counts. It was in Congress even before George W. Bush came to Washington that militarist pressures were brought to bear in such a way as to oppose beneficial multilateral treaty constraints on United States policy. The Senate refused to ratify the Comprehensive Test Ban in the Clinton years, as well as being so strongly opposed to the ICC and Kyoto Protocol that there was no prospect for such treaties to be approved by the required 2/3s vote if submitted for ratification. What mainly distinguished the Bush approach to international law from that of its predecessors were two developments: its alignment of the Executive Branch with an anti-internationalist set of policies that seemed oblivious to the benefits of international cooperation; and its avowedly ideological and emphatic repudiation of treaty instruments and the restraints of international law in order to express its own approach to foreign policy premised on military dominance and interventionary diplomacy. It was this posture by the Bush leadership that frightened world public opinion. Before 9/11 a rising crescendo of domestic and international opposition to the Bush policies led to mounting criticism, especially given Bush’s dubious electoral mandate in 2000.

This concern and opposition has dramatically intensified outside the United States since 9/11 because the Bush White House has moved from its earlier hostility to multilateralism to its unwillingness to abide by fundamental international legal rules and standards that this country, along with other constitutional democracies, had previously accepted as a matter of course. These rules include humane treatment of prisoners taken during armed combat, unconditional prohibitions on torture and assassination of political opponents, and the duty to protect civilians in any foreign territory under occupation. The most important of all these legal restrictions on foreign policy is the rule of international law prohibiting non-defensive uses of force without a mandate from the UN Security Council. In his 2004 State of the Union Address President Bush told the Congress that the United States would never seek ‘a permission slip’ in matters bearing on its security. But it is precisely a permission slip that international law, and the UN Charter, requires. Such a requirement was written into the Charter largely at the behest of the US Government after World War II, seeking to bind the states of the world to a legal framework that forbade wars of aggression, what more fashionably has been recently called ‘wars of choice.’ German and Japanese leaders were sentenced to death at war crimes tribunals because they had recourse to aggressive wars, and acted without a permission slip.

The Iraq War is a notorious example of a war of choice that violates this fundamental rule of international law. As such, according to the Nuremberg Principles embodied in general international law after the conviction of German leaders for their criminal conduct, constitutes a Crime Against Peace. The American prosecutor at Nuremberg, Justice Robert Jackson, famously said to the tribunal, “..let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn, aggression by other nations, including those which sit here now in judgment.”

This pattern of illegality continues to shock the conscience of humanity. American officials have strained to redefine ‘torture’ so as to permit what the rest of the world, and common sense, understand to be ‘torture.’ The abuse of prisoners detained in Guantanamo, Abu Ghraib, and elsewhere has severely damaged America’s reputation in the world, as well as undermined its struggle against those extremist enemies engaged in terrorism. Government lawyers and their supporters in society have argued in favored of assassinating suspects in foreign countries, and justified under the terminology of ‘rendition’ handing over suspects to foreign governments notorious for their reliance on torture as their preferred mode of interrogation. The detrimental impact of such American lawlessness on the protection of human rights has been documented in great detail by such respected organizations as the American Civil Liberties Union, Amnesty International, and Human Rights Watch.

This record of abuse has badly tarnished America’s reputation as world leaders and limited the capacity of the government to get support for and cooperation with its anti-terrorist policies.

It is notable to observe that the events of 9/11 produced a patriotic surge that has endowed the Bush administration with the freedom to embark on a foreign policy aimed at ‘geopolitical preeminence,’ and only incidentally concerned with the defeat of Al Qaeda and transnational terrorism. Such a priority was stated clearly before 9/11 in the report of the Project for a New American Century. And it was acknowledged subsequent to 9/11 in the important White House document entitled “The National Security Strategy of the United States of America.” (2002) In other words, violating international law, especially embarking on wars of aggression, has been integral to the realization of preexisting American global ambitions that were politically non-viable before 9/11. To sustain a climate of acquiescence within the United States it has been necessary to rely upon a manipulative politics of fear that has largely led to a suspension of criticism, including from the US Congress. In this crucial respect, the Congress is failing in its constitutional duties by not seeking to exert pressure on the Executive to uphold the Rule of Law by insisting on compliance with international law. Perhaps, the public outrage associated with the derelictions of governmental duty in the setting of Hurricane Katrina have finally opened a space for challenging the legitimacy of the present government, and holding the leaders to account. If the political will can be mobilized in Washington the blank check on government policy issued after 9/11 can at last be voided.

But the neoconservatives in and around the White House seem unchastened. Despite the ongoing draining experience of the Iraq occupation, these foreign policy super-hawks are making belligerent noises that suggest the possibilities of further military adventures in the Middle East, targeting Syria first, and then menacing Iran. It is a sign of untamed and lawless militarism that the rightist columnist, Max Boot, writing in the LA Times on September 21, 2005, can argue that it is only targeting difficulties that make it impractical to strike at North Korea’s nuclear facilities from the air. Boot writes as if there are no legal or moral inhibitions on such aggressive uses of force at the whim of American leaders. If other governments were to adopt such a logic the world would quickly become an inferno of violence and extremism.

It is and should be a requirement of a constitutional democracy in the 21st century that a government’s foreign policy, as well as its domestic behavior, be made subject to the discipline of law. In a globalized world the extension of law to international activity is in the national interest. It keeps our leaders from embarking on geopolitical ventures that are not supported by the citizenry if fully informed. American failures to abide by international law gives others a reciprocal right to violate their legal obligations, including in relation to Americans detained abroad as prisoners. What we see instead during the Bush presidency is a refusal to uphold the most fundamental obligations of international law that are binding on all sovereign states. We also believe that the willingness of American lawmakers and media to tolerate such illegality and criminality is a byproduct of the atmosphere that has followed from the 9/11 attacks. Because these attacks enabled the White House and Pentagon to pursue policies that their leadership favored before 9/11, but could not implement due to political obstacles, it becomes of immense practical importance to determine the authenticity of the official version of the 9/11 attacks and response. The readiness to plan the Iraq War as early as September 12, 2001 and the availability of the legislative draft that was to become the Patriot Act give every right for a vigilant citizenry to be suspicious. As suggested, in the aftermath of Katrina, and given the continuing ferocity of the Iraqi resistance to the American occupation, new political possibilities exist to challenge the Bush White House, and revamp American foreign and domestic policy, attending to the needs of the people, especially those who suffer in poverty while those around them wallow in obscene wealth.

Finally, adherence to international law in matters of war and peace is in the interest of the American peoples and the peoples of the world. There may be humanitarian emergencies or dangerous threats of attack that might justify recourse to war as the UN Secretary General and the UN High-level Panel on Threats, Challenges and Change both conclude, but recourse to war is only legally valid if it is authorized by the Security Council. America and the world will be better off when non-defensive warfare requires in every instance ‘a permission slip.’

Let hope that American lawmakers can learn from Iraq and Katrina to work for the security and wellbeing of the citizenry and of the world, to reassess priorities, and to reaffirm the importance of adhering to international law and of respecting the human rights of all persons, both citizens and non-citizens, whether in detention within the country or beyond its sovereign borders.

Richard Falk, chair of the board of the Nuclear Age Peace Foundation, is the author of Religion and Humane Global Governance (Palgrave) and, most recently, The Great Terror War (Olive Branch). He is currently visiting professor of global studies at UC Santa Barbara.

September 21, 2005
The World Speaks on Iraq

The World Tribunal on Iraq (WTI) held its culminating session in Istanbul June 24-27, the last and most elaborate of sixteen condemnations of the Iraq War held worldwide in the past two years, in Barcelona, Tokyo, Brussels, Seoul, New York, London, Mumbai and other cities. The Istanbul session used the verdicts and some of the testimony from the earlier sessions; the cumulative nature of the sessions built interest among peace activists, resulting in this final session having by far the strongest international flavor. The cumulative process, described by organizers as “the tribunal movement,” is unique in history: Never before has a war aroused this level of protest on a global scale–first to prevent it (the huge February 15, 2003, demonstrations in eighty countries) and then to condemn its inception and conduct. The WTI expresses the opposition of global civil society to the Iraq War, a project perhaps best described as a form of “moral globalization.”

The WTI generated intense interest in Turkey, Europe, the Arab world and on the Internet but was ignored by the American mainstream media. Here in Istanbul, the WTI was treated for days as the number-one news story. There are several explanations for this, starting with near-unanimous opposition to the Iraq War in Turkey. More relevant were the vivid connections between Turkey and the war: physical proximity, an array of adverse effects and, more dramatic, a contradictory government posture–the refusal of the Turkish parliament in 2003 to give in to US pressure to authorize an invasion of Iraq from Turkish territory, while the Prime Minister allowed the continuing use of the huge US air base at Incirlik for strategic operations during and after the war.

The WTI was loosely inspired by the Bertrand Russell tribunal held in Copenhagen and Stockholm in 1967 to protest the Vietnam War, which documented with extensive testimony the allegations of criminality associated with the American role in Vietnam. The Russell tribunal featured the participation of Jean-Paul Sartre, Simone de Beauvoir and other notable European left intellectuals. It relied on international law and morality to condemn the war but made no pretension of being a legal body, and its jury contained no international law experts.

Of course, a tribunal of this sort is immediately criticized on one hand as a kangaroo court that ignores the other sides of the legal and political argument and, on the other, is treated as a meaningless use of a courtroom format since there is neither an adversary process nor enforcement powers. In my view, these criticisms reveal a misunderstanding of the undertaking. To be sure, the WTI is not an organ of the state and cannot count on its judgments being implemented by such state institutions as police or prisons. Rather, the WTI is self-consciously an organ of civil society, with its own potential enforcement by way of economic boycotts, civil disobedience and political campaigns. And on the substantive issues of legality, it is designed to confirm the truth of the widely held allegations about the Iraq War, not to discover the truth by way of political, legal and moral inquiry and debate. It proceeds from a presumption that the allegations of illegality and criminality are valid and that its job is to reinforce that conclusion as persuasively and vividly as possible.

The motivations of citizens to organize such a tribunal do not arise from uncertainty about issues of legality and morality but from a conviction that the institutions of the state, including the UN, have failed to act to protect a vulnerable people against such Nuremberg crimes as aggression, violations of the laws of war and crimes against humanity. It is only because of such institutional failures in the face of ongoing suffering and abuse in Iraq that individuals and institutions made the immense organizational effort to put together this kind of transnational civic tribunal. We should also recall that the Nuremberg Tribunal’s enduring contribution was not finding out whether the Nazi regime had committed the crimes alleged but documenting its criminality.

The decision of the WTI was rendered by a fifteen-member Jury of Conscience, chaired by Indian novelist Arundhati Roy and including two Americans, David Krieger, president of the Nuclear Age Peace Foundation, and Eve Ensler of Vagina Monologues fame. A Panel of Advocates–coordinated by Turgut Tarhanli, dean of the Bilgi Law School in Istanbul, and myself–organized the fifty-four presentations. The advocates came from diverse backgrounds, and the presentations included some incisive analyses of international-law issues by such respected world experts as Christine Chinkin of the London School of Economics; two former UN assistant secretaries general, Denis Halliday and Hans von Sponek, both of whom had resigned in the 1990s to protest the UN’s role in Iraq; several seemingly credible eyewitnesses who had held important nongovernment jobs in pre-invasion Iraq, who gave accounts of the devastation and cruelty of the occupation; Tim Goodrich, a former American soldier and co-founder of Iraq Veterans Against the War, who gave a moving presentation of why he turned against the war; and overall assessments of how the war fits into American ambitions for global empire, by such renowned intellectuals as Samir Amin, Johan Galtung and Walden Bello. Their presentations combined an acute explanation of the strains on world order arising from predatory forms of economic globalization with the view that the US response to 9/11 was mainly motivated by regional and global strategic aims and only incidentally, if at all, by antiterrorism.

After compromise and debate, the jury reached a unanimous verdict that combined findings with recommendations for action. Its core conclusion condemned the Iraq War as a war of aggression in violation of the UN Charter and international law, and determined that those responsible for planning and waging it should be held criminally responsible. George W. Bush, Tony Blair, Donald Rumsfeld, Dick Cheney, Colin Powell and Paul Wolfowitz were listed in the verdict by name. Less predictable was that the UN was faulted for failing to fulfill its responsibilities to protect member states against aggression. One recommendation supported the rights of the Iraqi people to resist an illegal occupation, as authorized by international law. Further recommendations specified that US media be held responsible for contributing to the war of aggression, that American products associated with corporations doing business in Iraq–like Halliburton, Coca-Cola, Bechtel and Boeing–be boycotted and that peace movement activists around the world urge the withdrawal of all foreign forces from Iraq. The verdict was framed as a moral and political assessment of the Iraq War, and relied on the guidelines of international law to lend weight to its conclusions. The jury’s view of international law accords with a virtually unanimous consensus of international-law experts outside the United States and Britain.

Arundhati Roy imparted the prevailing spirit of civic dedication and moral leadership in a public statement at the culminating session. Her words summarize the experience for many of us: “The World Tribunal on Iraq places its faith in the consciences of millions of people across the world who do not wish to stand by and watch while the people of Iraq are being slaughtered, subjugated and humiliated.”

Richard Falk, chair of the board of the Nuclear Age Peace Foundation, is the author of Religion and Humane Global Governance (Palgrave) and, most recently, The Great Terror War (Olive Branch). He is currently visiting professor of global studies at UC Santa Barbara.

Originally published in the August 1, 2005 edition of The Nation.

July 14, 2005
Opening Speech at the World Tribunal on Iraq

Let me express at the outset, on behalf of the Panel of Advocates our profound gratitude to the convenors of this Istanbul session of the World Tribunal on Iraq (WTI) for their exceptional effort, and at the same time acknowledge the extraordinary contributions of the twenty earlier sessions of the WTI that have produced invaluable testimony and results that have increased awareness the world over of the criminality of the Iraq War. This unprecedented process of truth-telling about an ongoing war has produced what can best be described as ‘a tribunal movement’ of which this Istanbul session is the culminating phase to date of this process.

The World Tribunal on Iraq (WTI) is remarkable for two principal reasons: WTI bears witness to the depth and persistence of the popular mobilization of people throughout the world in opposition to the Iraq War. Such a mobilization against a particular war has never occurred before on such a scale. It started with the massive street demonstrations before the war on Feb. 15, 2003 in which some 11 million people took part in 80 countries and more than 600 urban communities. The WTI gives a continuing legal, moral, and political expression to this anti-war opposition which itself has entered a new phase: an insurgent war of liberation being waged in resistance to the illegal occupation of the country by the greatest military power in the history of the world. In this struggle, the Iraqi people are being denied their fundamental rights of self-determination, first by aggression and then by a cruel and criminal dynamic occupation.

The second reason for claiming historical significance on behalf of WTI relates to this initiative of, by, and for citizens to hold leaders accountable for severe violations of international law, especially in relation to matters of war and peace. It is not that this is an entirely new idea. The first such effort was inspired by the eminent British philosopher, Bertrand Russell, who convened such a tribunal back in 1967 to assess the legal responsibility of the United States and its leaders for the Vietnam War. It gathered testimony and documented the massive abuses of Vietnamese sovereignty by a devastating war that took millions of innocent Vietnamese lives. Above all, this citizens’ tribunal was a cry of anguish intended to break the wall of silence behind which the crimes associated with the Vietnam War were daily committed. The Russell Tribunal in turn led to the formation of the Permanent Peoples Tribunal, located in Rome, operating since 1976 to reinforce the claims of international law by filling in the gaps where governments and even the United Nations are unable and unwilling to act, or even to speak. The WTI continues and extends this tradition of refusing to be silent or to be silenced. It accepts as a responsibility of democracy the obligation of citizens to insist on the relevance and applicability of international law to every use of force. This insistence includes a demand for criminal accountability, whenever a government disavows its commitment to respect international law. It is primarily to honor this commitment to uphold international law that this tribunal has been organized, and its mission is to confirm the truth of the allegation directed at the United States and the United Kingdom, while also extending to all governments that support directly or indirectly the Iraq War.

We should be aware that such a commitment by the WTI is part of a longer journey of international law that has evolved by stages that can be identified.

The initial stage was to create in some authoritative way the norms of law, morality, and politics associated with the prohibition of wars of aggression. The legal culmination of this process occurred in 1928 when leading states, including the United States and the UK, ratified without qualification the General Treaty for the Renunciation of War as an instrument of National Policy, also known as the Kellogg-Brand Pact;

This was followed by a second stage that attached criminal consequences to the violation of this norm prohibiting aggressive war through establishing accountability. The criminal trial of German and Japanese leaders after World War II, the Nuremberg Judgment issued in 1945 was a milestone in this process. The Judgment declared: “To initiate a war of aggression…is not only an international crime, it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole,” and although Nuremberg was flawed by being an example of “victors’ justice,” the American prosecutor, Justice Robert Jackson, made what has been described as the Nuremberg Promise in his closing statement: “If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us” This promise has been broken, but such behavior is not acceptable, and we are gathered in part to insist even now that the promise that every state will pay the consequences if it wages a war of aggression.

This treaty pledge to renounce aggressive war informed the United Nations Charter. The Charter imposes a core obligation on Members to refrain from the use of force in international relations except in circumstances of self-defense strictly defined and under the authority of the Security Council. It also, in a spirit relevant to the WTI, confirmed in its opening words that it is the peoples of the world and not the governments or even the UN that have been entrusted with the ultimate responsibility for upholding this renunciation of war: “We the peoples of the United Nations determined to save succeeding generations from the scourge of war…” that set forth the duties of states in the UN Charter. This tribunal is dedicated to precisely this undertaking as a matter of law, as an imperative of morality and human rights, and as an engagement with the politics of global justice.

Of course, this tribunal does not pretend to be a normal court of law with powers of enforcement. At the same time, it is acting on behalf of the peoples of the world to uphold respect for international law. When governments and the UN are silent, and fail to protect victims of aggression, tribunals of concerned citizens possess a law-making authority. Their unique contribution is to tell the truth as powerfully and fully as possible, and by such truthfulness to activate the conscience of humanity to resist. The US Government told a pack of lies in its feeble attempt to find a legal justification for the invasion of Iraq. The WTI will expose these lies by presenting evidence and testimony. The task of exposing lies and confirming truth has become easier as a result of the release of the Downing Street memos. These official documents show that British and American officials understood fully that the Iraq War was unlawful, and not only did they go ahead, but they fabricated evidence to build a completely dishonest legal case. Neither governments, nor the UN, nor most of the media will tell this story of deception, destruction, and criminality. It is the mission of the WTI, building on the efforts of the 20 or so earlier citizens’ tribunals, to tell this story and to appeal to the peoples of the world to join with the people of Iraq in opposing aggression against Iraq. The tribunal is formed on the basis of a Panel of Advocates and a Jury of Conscience. The Panel will present the evidence and the Jury will draw legal, moral, and political conclusions and offer recommendations. The pledge of advocates and jurors is to act in an honest, non-partisan, independent, and objective spirit to follow the evidence wherever it leads.

This tribunal differs from a normal court of law in the following main respects:

–it is an organ of civil society, not of the state;

–its essential purpose is to confirm the truth, not to discover it;

–its jurors are dedicated, informed, and committed citizens of the world, not neutral and indifferent individuals of the community;

–its advocates are knowledgeable, wise and decent, but not legally trained specialists;

–its trust for the future is not based on violence and police, but on conscience, political struggle, and public opinion.

Nevertheless, we claim for this tribunal the authority to declare the law and to impose its judgment and to hope — hope that a demonstration of this criminality will not fall on deaf ears, but will awaken and exercise the peoples of the world to intensify their resistance to America’s plans for world domination and stand in solidarity with the Iraqi people.

We need to realize that the Iraq war is the eye of a larger global storm. The storm expresses the fury of this American project to dominate the world by force of arms, to exploit the peoples of the world through the medium of economic globalization, and to administer its idea of security from its Washington headquarters. This project of World Empire hides its true colors beneath the banner of anti-terrorism. It justifies every abuse by pointing to the September 11 attacks. These attacks, even if they are what is claimed, do not justify aggression against states or the torture of individuals. We should remember that the imperial brain trust said before September 11 that only “a new Pearl Harbor” would produce the political climate needed to achieve global hegemony. And they got a new Pearl Harbor, or did they? Read David Griffin’s The New Pearl Harbor and you will never be able to take 9/11 at face value in the future. The convenors of the WTI are mindful of this wider context of the Iraq War.

It should also be observed that Turkey is an appropriate site for this culminating session of the WTI, remembering that earlier sessions of the WTI in all regions of the world have gathered evidence of the illegality of the Iraq War and the criminal policies and practices that have been associated with its conduct. To begin with, Turkey stands at the crossroads between the old European geopolitical core and the Third World periphery. Earlier Russell, PPT initiatives were European. Now the moral, political, and legal platform is moving away from the Christian West. It was Turkey’s proudest moment when its parliament refused the request of the US Government to mount the invasion of Iraq from Turkish territory; this represented an expression of an increasingly robust democratic process here in Turkey. Turkey is also a natural site for the tribunal because it is an important neighbor of Iraq, and suffers a variety of bad consequences from the war and the turmoil in the region that has resulted. And further, the Turkish government has been complicit with the Iraq war, as well as with the preceding period of sanctions, by allowing its territory to be used for a strategic base that has been extensively used for the bombing of Iraq ever since 1990. It is a purpose of this tribunal to show that such complicity engages legal responsibility for Turkey, and for other governments in the region that support directly or indirectly such aggressive war making.

A special concern of the WTI is to take sharp issue with American claims of exception whether based on an alleged freedom to wage war anywhere on the planet as a result of the 9/11 attacks or securing an exemption for itself in relation to the basic obligation to uphold international law. The pernicious American exceptionalism contradicts completely the role played by the United States in seeking to promote the Rule of Law, the Nuremberg approach, and the UN Charter after 1945. The claim of exception moves in two directions: it operates, first of all, as an explicit effort to exempt Anerican leaders from individual accountability for violating international law, specifically in relation to the recently established International Criminal Court; and secondly, in relation to the lawless barbarism of the detention of alleged terrorist and insurgency suspects being held in such notorious outposts of torture and official evil as Abu Ghraib Prison in Iraq and Camp X-Ray at Guantanamo. This tribunal stands against such outrageous claims of exception, and operates beneath the jurisprudential principle that no government or leader is above the law and that every government and leader is criminally accountable for failures to uphold international law. If governments and the UN are unwilling to pass judgment, it is up to initiatives by citizens of the world to perform this scared duty. The WTI has been formed against the background of these essential beliefs.

It should also be understood that the WTI views the Iraq War as part of this wider assault by the United States, and the UK, against wider prospects for a just world order. These prospects depend upon respecting the sovereign rights of all states, of working to achieve human rights, including economic, social, and cultural rights for all peoples, and to struggle on behalf of a humane world order, including a far more equitable world economy that is indispensable for achieving a sustainable world peace.

There was a tart in this direction made during the 1990s, although amid an array of contradictions. But it is worth noting these progressive moves that have been stymied by the wars of aggression launched by the United States by relying upon the pretext of a war against terrorism. It is worth observing because it is important to revive these moves toward humane global governance based on the principles of global justice:

–the spread of democracy, and especially the rise of global civil society and of global social movements in the area of environment, human rights, women, and peace;

–the increased support for human rights by civil society actors and governments around the world;

–the attention given to the remembrance and partial erasure of historic grievances toward indigenous peoples on all continents, toward the victims of forced labor, including so-called “comfort women” during World War II, toward the descendants of slavery;

–and most of all, to the revival of Nuremberg ideas about criminal accountability, challenging impunity – the Chilean dictator Pinochet was indicted by Spain and detained by Britain; the UN established tribunals to prosecute those responsible for ethnic cleansing and crimes against humanity in former Yugoslavia and for genocide in Rwanda; and over the objections of the leading states, the ICC was brought into existence due to the active coalition of hundreds of NGOs working together with dozens of governments dedicated to establish a framework for applying international criminal law.

Such positive steps have been derailed, at least temporarily, by the firestorm released in the world by the US Government since the September 11 attacks. This tribunal hopes that truth-telling with respect to Iraq will also revive the emergent normative revolution of the 1990s, making us move again in the Puerto Alegre direction of insisting that “another world is possible,” and adding, “if possible, it is necessary,” and with this affirmation, the WTI will not only stimulate resistance to appression and solidarity with victims, but will revive the vision of the 1990s that can be best summarized as the cause of “moral globalization.”

June 24, 2005

Statement of Richard Falk at Press Conference for World Tribunal

The World Tribunal on Iraq (WTI) is a worldwide civil society undertaking to reclaim justice. The project consists of commissions of inquiry and sessions held around the world investigating various issues related to the war on Iraq, such as the legality of the war, the role of the United Nations, war crimes and the role of the media. On June 23rd to the 27th 2005, at the start of the third year of the occupation of Iraq, the culminating session took place in Istanbul, Turkey. Richard Falk, Chair of the Nuclear Age Peace Foundation’s Board of Directors, delivered the opening remarks to the tribunal. Below is Falk’s statement at the WTI press conference. For more information, visit their website at www.worldtribunal.org.

The World Tribunal on Iraq is an undertaking of historic importance. It is the culmination of a process of tribunal sessions on the legal dimensions of the Iraq War that have been held in all parts of the world. This kind of spontaneous initiative of concerned people around the world has never taken place before. It represents an expression of what might be called “moral globalization,” acting on the belief that no state and no leader is above the law when it comes to matters of war and peace. And it expresses the overwhelming sentiments of peoples throughout the world that the Iraq War was against international law and morality. This initiative here in Istanbul has a quality of urgency as people are dying and suffering every day in Iraq as we speak. This is not an academic gathering of experts to find out the relevance of law. It is primarily an expression of popular democracy, of ethical conscience about what is right and wrong in world politics, and an expression of resistance to what is understood around the world as an American project to achieve world domination. The Iraq War is the eye of the storm at the moment. But the wider concern of the WTI is with America’s hegemonic global ambitions that is bringing danger, violence, and exploitation to many parts of the world at present.

The idea of a tribunal to judge legal responsibility of a state and its leaders for war is not new. After World War II the victorious governments convened tribunals at Nuremberg and Tokyo, and held the German and Japanese leaders responsible. The Nuremberg Judgment, a celebrated document, called aggressive war, that is, Crimes Against Peace, as the greatest of all crimes. The UN Charter has carried forward the idea that all wars that are not fought in self-defense or with the approval of the UN Security Council are illegal wars, and hence a Crime Against Peace. The WTI has been initiated by citizens of many countries who share the belief that the Iraq War is such an illegal war, and that the leaders of the USA and United Kingdom are individually and criminally responsible for its initiation and for the violations of the Law of War that have accompanied the occupation of Iraq.

The work of the Tribunal is divided into a Panel of Advocates and a Jury of Conscience. The role of the Panel of Advocates is to document these charges through analysis and witnesses in a persuasive manner, and to appeal to a Jury of Conscience, composed of distinguished moral authority personalities from around the world, to pass judgment on the actors and their actions from the perspective of international law. We understand that the WTI is not a court of law with powers of enforcement. It is rather an informed inquiry by concerned, independent, non-partisan, and honest persons into the relevance of international law that is designed to discredit any claims by the governments who have supported the Iraq War that their action is somehow legal and morally and politically acceptable. It is designed to tell the truth as clearly and powerfully as possible with respect to all aspects of the Iraq War. In the end if democracy is to be the true basis of political authority, then leaders must be made accountable, especially if they fail to uphold the Rule of Law in the area of war and peace. If governments and the United Nations are unable and unwilling to discharge this responsibility, then citizens acting on behalf of civil society have the duty to challenge and oppose an illegal war and practices that violate international humanitarian law. It is after all, in the famous words of the UN Charter, “We the peoples of the world” who are “determined to save succeeding generations from the scourge of war.”

The WTI takes these words seriously as a call to action. We who are participating in this Tribunal are speaking here in Turkey as ‘citizens of the world’ who are part of a global movement to oppose aggressive wars and to resist the wider ambitions of the United States Government to override the sovereignty and independence of states. And we of the WTI are calling on others in every country who seek global peace and justice, including the protection of human rights, to join us in doing this vital work. It is time to understand that aggressive war has become something more than a struggle between particular states. It is an assault on the well being of people everywhere, and must be opposed everywhere. Aggressive war is not only a Crime Against Peace, it has also become the greatest Crime Against Humanity.

The WTI is opposing aggressive war, war crimes, and crimes against humanity. It is not opposing the governments or the United Nations. Indeed it hopes to create pressure from below that will encourage law-abiding governments and the UN to do their proper job of protecting weaker countries and their populations against such illegalities. And beyond this protection we are promoting a world movement of peoples and governments to realize a humane form of globalization that is equitable with respect to the world economy, legitimate in upholding the human rights of all, and dedicated above all else to creating the conditions for sustainable peace based on justice for every nation on earth.

June 23, 2005

Support for Wall Mocks International Law

What is most remarkable about the International Court of Justice decision on Israel’s ”security barrier” in the West Bank is the strength of the consensus behind it. By a vote of 14-1, the 15 distinguished jurists who make up the highest judicial body on the planet found that the barrier is illegal under international law and that Israel must dismantle it, as well as compensate Palestinians for damage to their property resulting from the barrier’s construction.

The International Court of Justice has very rarely reached this degree of unanimity in big cases. The July 9 decision was even supported by the generally conservative British judge Rosalyn Higgins, whose intellectual force is widely admired in the United States.

One might expect the government of Ariel Sharon to wave off this notable consensus as an ”immoral and dangerous opinion.” But one might expect the United States — even as it backed its ally Israel — at least to take account of the court’s reasoning in its criticisms. Instead, both the Bush administration and leading Democrats, including Senators John Kerry and Hillary Clinton, mindlessly rejected the decision.

Even the American justice in The Hague, Thomas Buergenthal, was careful in his lone dissent. He argued that the court did not fully explore Israel’s contention that the wall-and-fence complex is necessary for its security before arriving at its sweeping legal conclusions. But Judge Buergenthal also indicated that Israel was bound to adhere to international humanitarian law, that the Palestinians were entitled to exercise their right of self-determination and, insofar as the wall was built to protect Israeli settlements in the West Bank and East Jerusalem, that he had “serious doubt that the wall would. . .satisfy the proportionality requirement to qualify as legitimate self-defense.”

The nuance in Buergenthal’s narrow dissent contrasts sharply with, for instance, Kerry’s categorical statement that Israel’s barrier “is not a matter for the ICJ.”

To the contrary, Israel’s construction of the wall in the West Bank has flagrantly violated clear standards in international law. The clarity of the violations accounts for the willingness of the U.N. General Assembly to request an advisory opinion on the wall from the court, a right it has never previously exercised in relation to the Israeli-Palestinian conflict. The clarity also helps to explain Israel’s refusal to participate in the ICJ proceedings — not even to present its claim that the barrier under construction has already reduced the incidence of suicide bombing by as much as 90 percent.

Significantly, the court confirms that Israel is entitled to build a wall to defend itself from threats emanating from the Palestinian territories if it builds the barrier on its own territory. The justices based their objection to the wall on its location within occupied Palestinian territories, as well as the consequent suffering visited upon affected Palestinians.

If Israel had erected the wall on its side of the boundary of Israel prior to the 1967 war, then it would not have encroached on Palestinian legal rights. The court’s logic assumes the unconditional applicability of international humanitarian law, including the Fourth Geneva Convention, to Israel’s administration of the West Bank and Gaza (a principle affirmed by Judge Buergenthal). That body of law obliges Israel to respect the property rights of Palestinians without qualification, and to avoid altering the character of the territory, including by population transfer.

The decision creates a clear mandate. The ICJ decision, by a vote of 13-2, imposes upon all states an obligation not to recognize ”the illegal situation” created by the construction of the wall. This is supplemented by a 14-1 vote urging the General Assembly and Security Council to “consider what further action is required to bring an end to the illegal situation.”

Such a plain-spoken ruling from the characteristically cautious International Court of Justice will test the respect accorded international law, including U.S. willingness to support international law despite a ruling against its ally. The invasion of Iraq and the continuing scandals have already tarnished the reputation of the United States as a law-abiding member of the international community. When U.S. officials dismiss the nearly unanimous ICJ decision without even bothering to engage its arguments, America’s reputation suffers further. In fact, elsewhere in the world, U.S. repudiation of this decision can only entrench existing views of America as an international outlaw.

Richard Falk is a Distinguished Visiting Professor at the University of California at Santa Barbara, Albert G. Milbank Professor Emeritus of International Law and Practice at Princeton University, and is chair of the Nuclear Age Peace Foundation.

July 20, 2004
What is a Nation? What is a State? Exploring Minority Rights and their Limits

(April 9-10, City College of Santa Barbara, “Tribes, Sects, Cultures, & Sovereign States: Group/Minority Rights or Individual Rights, of Both?”)

I welcome this opportunity to participate in a conference devoted to what has become one of the two most tormented arenas of political violence in the world today. The two arenas are significantly interrelated. Our focus during these two days on the dynamics of various forms of fragmentation internal to the sovereign state, can be understood as a fundamental challenge to the normative program of establishing an effective human rights regime applicable to all persons. The resulting tension is generating multiple crises of identity, authority, and loyalty that can often not be resolved peacefully. Of course, the second arena of challenge is associated with issues posed by 9/11 and the American recourse to a “Great Terror War” as an inevitable response, the chief characteristics of which is to define “terror” to encompass all anti-state political violence and to include a strategy of regime change to promote the project of global domination under the anti-terrorist banner.

The Iraq War dramatically highlights the interaction between domestic fragmentation in the aftermath of authoritarian rule with the political impossibilities of imposed democracy as the solution for nation and state in Iraq as a member of international society. With deep irony, the American project of regime change in Iraq has turned a previously Draconian Iraqi state into a scene of multiple terrorism, associated with religious extremism, national resistance, and the state terrorism of the occupiers. The most likely futures for Iraq under these circumstances are the resumption in some form of Sunni authoritarianism, the outbreak of civil war, the emergence of a Shi’ia Islamic Republic, or a prolonged and bloody American occupation that is likely to exert unpredictable shocks here in the United States, making the tumult of the Vietnam Era seem mild by comparison. In other words, this conference is addressing issues that are already shaking the foundations of world order in a manner that I would argue are more profound than anything that has happened for several hundred years (with the possible exception of the advent of nuclear weaponry). We lack an appropriate political language to understand and a political leadership with the capacity for creative and constructive response. We confront a dire set of circumstances in Iraq that do not contain credible positive options for a favorable end game at present.

But even before this lethal brew arising out of 9/11 and its misguided plunge into a cycle of perpetual warfare, the issues associated with the conference were made highly relevant by several prominent developments in the 1990s: the ending of the cold war, which gave rise to a new surge of nationalism that had been previously largely concealed within the sinews of authoritarian states. This was especially the case in the former Soviet Union and Yugoslavia. In the Soviet instance, the collapse of Soviet control over its internal empire of republics containing a variety of minority peoples was essentially unopposed, but political violence erupted at the next lower level of political organization, and persists in a variety of settings, including Georgia, Azerbaijan, Uzbekistan, and elsewhere in Central Asia. In the Yugoslav instance, the tension between a normative order premised on the territorial unity of the state and an emergent set of normative claims associated with the application of the right of self-determination in non-colonial settings produced a series of severe ethnic wars during the 1990s with extensive killing fields, mixed outcomes, persisting turmoil.

The normative debate surrounding Kosovo discloses some of the larger issues at stake, as well as suggesting the elusiveness of solutions dependent on outside intervention and subsequent occupation under international auspices. In this instance, under the combined authority of the NATO KFOR peacekeeping presence and the United Nations post-conflict administrative control over political and economic reconstruction of a Kosovo, producing a continuously tense condition of de facto independence. It will be recalled that back in 1999 the justification for the Kosovo War, conducted without any proper prior authorization by the UNSC, was the protection of the Albanian majority population from oppressive Serbian domination, which included a variety of allegation of serious human rights abuses, and the expectation that far worse was in the offing, designed at the very least to induce coercively a proportion of the Albanian population to flee the country.

There were many ambiguities associated with this NATO undertaking, especially the irony of embracing the KLA, which in the subsequent Bush/Sharon period would qualify without doubt as a “terrorist organization.” But there were other disturbing aspects of recourse to war in Kosovo: deep suspicions that the US Government was not interested in achieving a diplomatic solution, indications of mixed motives in Washington, including finding a role for NATO in the period after the cold war, and assurances that the US would stay involved in European affairs. Beyond this, the conduct of the Kosovo War by its reliance on high-altitude bombing, the extension of the target list to include civilian targets in Belgrade, the provocative bombing of the Chinese Embassy, the use of depleted uranium ordinance, the absence of any combat casualties on the NATO side were among the elements that cast a long dark shadow across the humanitarian pretensions of the operation.

Since the end of the active hostilities, there have been a series of difficulties, but most relevant for our purposes, has been a pattern of what has been called “reverse ethnic cleansing” in which the new category of victims have become the remnants of the Serb minority that continues to live in Kosovo, and were ethnically identified with the former perpetrators. The persistence of de facto independence for Kosovo also seems to violate an earlier UN pledge that its engagement with Kosovo would not challenge the sovereign unity of Serbia, which had been the lead republic in the former federated state of Yugoslavia. Kosovo is an example of third-order self-determination claims, considering movements against alien or colonial rule as first-order claims, independence for the autonomous units in a federal state as second-order claims, and positing sovereignty claims by indigenous peoples as fourth-order claims. Although it is dangerous to be dogmatic, and not sensitive to context, third-order self-determination claims seem to be fraught with difficulties, especially if the proposed independent territorial community includes an important minority that is ethnically or religiously associated with the former sovereign state.

The conceptual issue can be understood as follows: when does ‘a minority’ qualify as ‘a nation’ or ‘a people’ (the language used to designate the holder of the right of self-determination in international law) and when should ‘a nation’ be entitled to form ‘a state’ even at the cost of fragmenting a former state? And there is the related issue posed relating to humanitarian intervention or, as the International Commission on Intervention and State Sovereignty, phrased it, an exercise of “The Responsibility to Protect” by the organized international community, that is, the United Nations? Kosovo illuminates the dilemmas

associated with this theme of nationhood verse statehood as the basis of political community. If a minority feels beleaguered and discriminated against, and does not succumb to assimilation, it will often tend to form a defensive nationalism as a mode of cultural survival. This is especially true if the minority is geographically distinct, speaks a separate language, adheres to a different religion, and has sufficient numbers to consider itself capable of becoming a viable independent political entity. Under these circumstances, the unity of the state is likely to be drawn into question, and the dominant elites will be inclined to tighten their control over such a restive minority, which in turn radicalizes still further separatist tendencies. As a result, quite often armed struggles occur, which can produce prolonged political violence with much suffering and bloodshed. Looking around the world at places such as Sudan, Kashmir, Sri Lanka, Colombia, parts of Indonesia, to mention a few of the more prominent instances, it is obvious that this tension between national consciousness and state unity is one of the great divisive forces active in the world with no happy ending in sight.

Whether the engagement of the international community is a plus or minus depends on the circumstances. There seems to be little doubt that from an Albanian perspective, the NATO intervention was welcome, ending the Serb oppressive rule, attracting back almost all of the hundreds of thousands of Albania refugees who had fled the country, producing a UN presence that created space in Kosovo for a potential economic recovery and the possible construction of a political democracy. To date, these hopes have not been realized. Further, even if the record in Kosovo after the intervention had been more encouraging we need to pose a decisive question from the perspective of shaping global policy: did the Kosovo War produce a precedent that can give rise, with adjustments for circumstances, to a principled framework that would operate in other roughly comparable settings?

This past week was the tenth anniversary of the terrible genocide that took as many as 800,000 mainly Tutsi lives in Rwanda while an authorized UN protective presence stood by paralyzed and unaugmented, despite strong advance warnings of what was being contemplated by the Hutu rulers. It is well-documented that the great champions of humanitarian intervention earlier in the Balkans and more recently in Iraq, Great Britain and the United States, used the full extent of their political leverage to inhibit a UN protective role in Rwanda as the genocidal pattern started to unfold back in 1994. In this respect, the Rwandan case stands out as the clearest case where there existed an international responsibility to protect, a duty to respond to imminent humanitarian emergencies, if at all possible, on the basis of a proper mandate from the UN Security Council. As a practical matter, to avoid the Kosovo dilemma, it would be a beneficial reform in such situations in the future, if the Permanent Members of the UN Security Council, would formally, or at least informally, waive their right of veto in circumstances of humanitarian emergency. Of course, there is an inevitable gray area. Opponents of the Kosovo intervention argue to this day that no such humanitarian emergency existed at the time, that the allegations of atrocity were partially fabricated, and that diplomatic options had not been tried with due diligence by the US Government, which evidence shows was hell bent on war.

It is also important to mention the case of Somalia, where a humanitarian undertaking, with UN backing, was quickly terminated in 1993 when a firefight in Mogadishu cost 18 American lives. In that instance, the American-led peacekeepers had initially been welcomed by the people of the country when it appeared that the UN mission was to bring food and medicine to a suffering population in what was then described as “a failed state.” Failed or not, when the Clinton presidency expanded the original mission undertaken two years earlier by Bush, Sr. to include state-building, which meant choosing political leaders. The unresolved struggle for power in Somalia among the ethnic factions that suddenly felt marginalized and threatened quickly morphed into a frenzy of opposition against the international presence recast as “intruders.” At the time, American officials tried to invalidate this opposition by calling the resistance to the US-led presence as the work of corrupt and greedy “war lords,” which seemed a way of denying the people of Somalia first-order self-determination in the face of chaotic circumstances. Interestingly, in the setting of Iraq we seek increasingly to invalidate the growing resistance by describing its partisans as “remnants of the Baathist regime,” “dead-enders,” “thugs and criminals,” and whatever other delegitimizing labels our leaders can conjure up to justify the persistence of an occupation that is more and more deeply resented by all sectors of Iraqi society, with the possible exception of the Kurds.

It is not plausible to discuss this range of concerns without a few comments on the Israel/Palestine conflict, whose persistence has for so longer challenged the conscience of humanity. From the perspective of the conceptual concerns of this essay the conflict passed through a series of phases, omitting any discussion of its deeper historical roots that stretch back to biblical times, yet give resonance to conflicting present expectations of the right to the contested land. The present shape of the struggle evolved out of a period following World War I when Palestine was a Mandate of the League of Nations, administered as a unified territory under British administrative control in their role as Mandatory authority. Within the mandate, there lived a Palestinian nation and a rather small Jewish minority, aspiring to become a ‘homeland’ for world Jewry in accordance with the promise given by the Balfour Declaration to the world Zionist movement in 1917. In 1948, amid growing tensions between the two peoples, greatly aggravated by the spillover into Palestine of the wider effects of The Holocaust, the United Nations decreed a partition of Palestine that would have provided two states for the two nations. This plan was repudiated by the Arab governments that launched a war designed to resist Israeli statehood, but leading to an Israeli victory and the expulsion from a large part of the Palestinian territory of its Palestinian residents, producing a huge refugee population. In this period, the Palestinians lived in the area of the West Bank under Jordanian administrative control, in effect, a captive nation, with a residual number of Palestinians living as a minority in Israel.

Since 1967, the Palestinian nation in the West Bank and Gaza has been living under harsh conditions of a prolonged occupation, agitated by the two intifadas and the Israeli repressive responses. From time to time a “peace process” has been initiated, most notably for seven years during the 1990s, with the aim of producing, or in effect, resurrecting the two-state solution proposed decades earlier by the UN, but now confining the Palestinian state to some 22% of the original mandatory territory, restricting drastically the rights of Palestinian refugees, and sustaining the great majority of Israeli settlements established in occupied Palestine in violation of international humanitarian law. In these circumstances, a two-state solution does not offer the Palestinians a fair solution. The alternative that has been discussed at various points has been the establishment of a single, secular bi-national state covering the entire territory of Palestine as it existed under the mandate. Israel refuses to consider such an outcome, both because it would mean the end of the Zionist conception of a Jewish state, and because it would cede too much authority to the Palestinians, especially in view of their demographic majority.

The outside role of the United States has been decisive, but not helpful from the perspective of finding a sustainable peace. The US approach, rooted as much in domestic ethnic politics as in grand strategy, has accentuated the disparity in power between the two parties, and has made it seem unnecessary for Israel to base peace on the ‘rights’ of the Palestinians under international law rather than on ‘the facts on the ground’ and their military superiority and diplomatic leverage. The ordeal of this unresolved conflict underscores the dependence of global justice on geopolitical circumstances.
What stands out from a review of these instances is precisely the primacy of geopolitics, by which is meant the way in which the particular struggle relates to the strategic designs of major political actors. In a unipolar world, geopolitics has become virtually indistinguishable from US foreign policy. Somalia was of marginal or no strategic interest, and the intervention was hence very shallow, and easily reversed in the face of national resistance. Rwanda, even more so, was not viewed as strategically relevant, and against the background of the Somalia experience of a year earlier, all the incentives were to turn aside the humanitarian emergency. Kosovo was, as earlier suggested, a mixed case, with strategic incentives sufficient to provide a realist underpinning to what was proclaimed to be a humanitarian intervention. At the time, a critic such as Noam Chomsky voiced his dissent by repudiating the humanitarian rationale, calling the operation “military humanism,” arguing that if the humanitarian motivations were genuine then the US would have flexed its muscles with respect to the embattled Kurdish minority in Turkey, and elsewhere.

I think an assessment of this pattern of action and inaction is more complicated than Chomsky would have us believe. I would differ from Chomsky on Kosovo, regarding the factual circumstances in Kosovo that existed in 1999, especially against the background of the Bosnian experience culminating in the Srebrenica massacre of 1995, as presenting the international community with a genuine humanitarian emergency. I would further argue, which is admittedly controversial, that the mixed motives associated with American strategic interests in keeping NATO alive and Europe stable, made it more likely that the interventionary undertaking would not be as shallow and fragile as in Somalia and elsewhere in subSaharan Africa, and therefore it had a reasonable prospect of being effective.

Applying this reasoning to Iraq, we notice, first of all, that there was no current humanitarian emergency, and that the humanitarian rationale was almost entirely a post-hoc effort to divert attention from the false security claims associated with alleged Iraqi possession of illicit stockpiles of WMD. But we further notice that the strategic stakes for the United States in Iraq are huge, and that however formidable the resistance to the American-led occupation has become, it is dismissed as irrelevant to the American engagement. The United States is suffering increasingly heavily casualties, but we have yet to hear a single mainstream voice utter a word in support of a Somalian exit strategy, or even a Vietnam exit strategy based on some sort of negotiated phased withdrawal.

The aftermath of the Iraq War has brought to the turbulent surface the various tensions that I have been describing and commenting upon. It illustrates the degree to which nationalism under siege from alien sources can produce a strong unifying effect even in the face of deep religious and ethnic cleavages, at least temporarily, among internal groupings that had previously viewed each other as implacable and hostile adversaries. A cartoon in the LA Times by Mike Keefe makes this point rather vividly. The visual parts of the cartoon shows Sunnis and Shiites fighting together against the American occupiers. The caption reads: “Hey, Mission Accomplished..We’ve unified Iraq!” A primary lesson of the Vietnam War, apparently unlearned so far in the Iraq setting, is that whenever a national resistance becomes unified and resolved, it will over time prevail over even a militarily superior and determined intervening great power. Of course, the strategic motives were always suspect in Vietnam, causing leading realists of the day such as Hans Morgenthau and George Kennan to oppose the war from the outset. With respect to Iraq, too, there was a chorus of realist opposition in the period leading up to the Iraq War, but because the strategic consequences are so large, there is a far greater uncertainty at least at this stage as to what to do next. And also, with Vietnam, there was a coherent alternative to the American presence. In Iraq there has been an assumption that any hasty removal of the American presence would lead to a bloody struggle for power that would produce dangerous regional effects.

In another important respect, the Iraq conflict increasingly illustrates the confusing reality of “nationalism.” If we look at Turkey, we can easily posit the 12 million Kurdish minority as “a captive nation” (especially, the six million or so Kurds living in eastern Anatolia); that is, a nationalism that is suppressed by the state. This reality is somewhat disguised by the misleading juridical claim that the Turkish state confers a Turkish nationalist identity on the entire population regardless of their preferred nationalist and ethnic identity. The great Turkish nation-builder, Kemal Ataturk, insisted in this vein that the Kurds were “mountain Turks,” and should be assimilated into the general population without any deference to autonomy claims or even cultural rights associated with language and traditions. There is thus a tension between nationalist aspirations of minorities and the statist aspirations of Turkish Kemalism. There is some prospect that the current less statist leadership in Turkey, the soft Islamic Ak Party, can revive the Ottoman practices of internal tolerances toward minorities, allowing Kurdish cultural rights to flourish and granting a strong measure of regional autonomy and self-administration in eastern Anatolia where at least half of the Kurdish minority is geographically concentrated.

But if we now look back at Iraq one last time, we can take some account of the various religious and ethnic factions that supposedly divide the country. Under Saddam Hussein, Iraq was governed as an authoritarian state that oppressed both its Shi’ia majority and its Kurdish and Turkaman minorities. There was surely a Kurdish nationalist tendency seeking a separate political reality or, at minimum, internal self-determination based on an autonomous status, but these aspirations were opposed not only by Baghdad, but by regional forces threatened by Kurdish independence movements. Nationalism as a psycho-political reality was at odds with juridical nationalism handed down from above at the level of the state. Oddly, at this point, in the face of the American occupation, there is the possibility that juridical nationalism will command the loyalties of the entire Iraqi population, with the probable notable exception of the Kurds, and create in Iraq that previously unimaginable stabilizing fusion between the state and the nation at least for as long as the interventionary presence of the United States remains the defining preoccupation of the Iraqi people and their most influential leaders.

If this fusion should occur, it will convert the Iraq War from its notorious status of last May of “mission accomplished” to a new tragic circumstance from a Washington perspective of “mission impossible.” Whether and how soon the United States discovers the reservoirs of moral and political imagination to extricate itself from this mission impossible remains to be seen. It may in the end depend on the oppositional prudence of the American citizenry rather than upon their elected representatives, who continue to act as sheep, not as responsible upholder of American interests, custodians of constitutional obligations, and promoters of the public good at home and abroad.

In summary, I would like to offer several briefly stated conclusions:

(1) It is important to acknowledge that the national aspirations of abused minorities (or in some instances of majorities) will not be realized by the benefits of juridical nationalism conferred on all citizens by the legal fiat of the territorial government;

(2) The emergence of human rights as a focus of international concern poses a subversive challenge to the territorial supremacy of sovereign states;

(3) The option of humanitarian intervention on behalf of abused minorities is unlikely to be effectively undertaken in the absence of accompanying strategic interests, and should be endorsed by the United Nations and world public opinion only in extreme cases;

(4) The main justification for such protective international action should be premised on a condition of a current humanitarian emergency, which is not established by a record of past abuses, even if severe, or by the present fact of dictatorial rule;

(5) In the absence of such a humanitarian emergency, interventions that claim humanitarian goals are likely to clash with nationalist goals, even those at the level of the state, and provoke nationalist resistance;

(6) Nationalist resistance, especially if unified and coherently led, is not susceptible to military defeat, although the resisters and the civilian population may endure huge casualties and prolonged suffering;

(7) The future of democracy and the promotion of individual and collective human rights should depend on the internal political processes of sovereign states, encouraged by educational ‘intervention’ in support of the values of human dignity for the foreseeable future;

(8) Adherence to the norm of non-intervention, including by regional international institutions and the United Nations, seems desirable outside of the exceptional circumstances of a humanitarian emergency.

April 19, 2004