[Below is a transcript which is about 95% complete and which contains links to some material that is cited in the commentary]
I ended Part 1 by castigating those who seek justice and redress from authorities like the ICC. This is not an era in which forward progress can be made through existing institutions. I am not against meaningful reform but working towards it has now become a form of rear-guard action in a war that the people are losing. Those who wield power in Western societies have become far too good at wielding power. They are not meaningfully opposed or moderated, and that means that they will continue down a path of social destruction, even at their own expense.
If it makes it easier to swallow, the point I am making is actually very closely linked to a point that Chris Hedges has been emphasising in the last few years. Actually it is more than one point, really, because Hedges is promoting revolt and he is saying that this age is one that needs rebels – true dissidents. He is fond of citing Václav Havel and sentiments he conveyed such as this: “The dissident does not operate in the realm of genuine power at all. He is not seeking power. He has no desire for office and does not gather votes. He does not attempt to charm the public, he offers nothing and promises nothing. He can offer, if anything, only his own skin — and he offers it solely because he has no other way of affirming the truth he stands for. His actions simply articulate his dignity as a citizen, regardless of the cost.” This resonates with the earlier quote from Dr Thiranagama cited in Part 1: “Objectivity, the pursuit of truth and critical, honest positions, is crucial for the community, but is a view that could cost many of us our lives.” Neither sentiment leaves room for sugar-coating the truth or leaving out parts of the truth on the grounds that they are confrontational, or may alienate potential allies. Moreover, they do not allow one to decide that others do not have the intellectual capacity to grasp the whole truth and must be spoon-fed half-truths and white lies calculated to bring support to the cause you think is righteous.
The other key thing about real dissidents is that they don’t think that they can convince the powerful of the error of their ways. It is actually quite disturbing that the voices we hear criticising power are dominated by a privileged tone that projects shared interests and innate benevolence onto people such as Clinton, Obama or Kerry. Whether people overtly state this belief or not, it is inherent in any discussion that suggests that if the powerful could only be brought to see things from our perspective they would end their harmful practices. It is the equivalent of an Auschwitz inmate trying to persuade a guard that the Nuremburg Laws were both immoral and against the interests of Germany. The guard is unlikely to want to hear what you are saying, but if you do manage to persuade them where does that leave you? Or him? It is also a type of fallacy.
To assume that our leaders act with the best intentions is generally treated as being more conservative and intellectually credible than to suggest otherwise. In fact, to do so is to impute motive. It is a bankrupt practice and it is automatically applied selectively in such a way that enemy regimes are assumed to act with ill-intent whilst our leaders are presumed to mean well at least for their own countries if not for humanity as a whole.
The most common argument used to deny that the US has committed genocide is that there was no intention to commit genocide because US leaders have no such intent. Those who use such arguments do not look for evidence of intentionality any more than they would look for evidence of unicorns, because they already know that that evidence doesn’t exist. If you confront them with the fact that there is, say, more evidence of US intent to commit genocide in Cambodia than there is of Khmer Rouge intent to commit genocide, they will be upset because they know that the words and acts that seem to indicate US intentionality are a misrepresentation of the actual inner processes of US officials, but the words and acts that suggest Khmer Rouge intentionality are revelations of their true nature.
In the final analysis, though, whether our leaders are monstrous psychopaths or normal people trapped within a monstrous system is irrelevant. In fact, this is a false dichotomy between agential individuals and mere cogs. Whether or not one considers Western leaders to be demonically evil they must accommodate to the degree to which the regimes in which they function are diseased and criminal. For example, a President of the United States, a US Secretary of Defense and a US Secretary of State must all commit war crimes in order to function within a system that requires it of them. The same can be said of the UK Prime Minister, Foreign Minister and Minister of Defence. Even should someone in that position have a change of heart, like Robert McNamara did, they could never be trusted to set things right because they cannot help but live in denial. Likewise, as Chris Hedges points out, there is no longer any point in putting faith in individuals or groups to work to reform the regime within its power structure. In a recent talk with Truthdig editor Robert Scheer, Hedges specifically references Elizabeth Warren and Bernie Sanders and says: “…we’ve got to stop placing our faith in particular individuals. That’s just not how power responds. Power responds when it feels threatened.”
Hedges points out that working within the system is not an avenue to change, and closing it may seem negative, but it is actually a source of hope. It is unfortunate that it takes severe crisis and dysfunction to bring this point about, but it is only once people stop placing faith in fantasies that they can act in their own interests. We have seen in the US that faith placed in Barack Obama was taken as unconditional, because there were no electoral alternatives for people who aren’t hateful or stupid. Depending on your viewpoint this has either freed or forced Obama into being a tool of elite vested interest while making enough rhetorical obeisance to public will to keep the shabby and translucent façade of democracy from collapsing into a pile of dust. This is why, paradoxically, our political elites would act with more humanity if we treated them as being baby-eating reptilian invaders from outer space because then they would feel constrained not to act like baby-eating reptilian invaders from outer space.
Just as we cannot elevate heroes to effect transformation it is also true that we cannot transform by debasing villains. Modern states with their Inquiries and Commissions and Committee Investigations have developed a huge amount of expertise in channelling justified outrage into ever-decreasing spirals of ever narrower objection. These processes end with the anticlimax of a drivelling pseudo-apology: “We’re sorry because we tried to bring too much freedom to the world and we messed up because we we’re too damned democratic and our vicious free press stabbed us in the back.” The model resembles the appalling Frost-Nixon interviews where David Frost went out of his way to systematically absolve Nixon of every one of his truly momentous crimes. But every porn production must have it’s cumshot, and after hours of this fellatio Nixon ejaculates: “I let the American people down”. And what a powerful confession that was! A little bit like John Wayne Gacy apologising for bringing disrepute to the amateur clown fraternity as if that was his only crime: “I let the clowns of this great land of America down”.
In this vein, when modern Western states do take actions against their own personnel they follow these rules:
Unless there is an inconvenient senior officer who could do with being taken down a peg, like Janis Karpinsky, ensure that you choose as few people as possible from as low in the hierarchy as possible.
Decontextualise and minimise the crimes. Maintain above all that they are aberrant isolated acts not linked to anything broader. Their isolation shows that they are the exception that proves the rule of our fundamentally benevolent nature.
Portray the accused as victims of the brutality generated by the savagery of their victims’ society.
Give as lenient a judgement as humanly possible.
Reverse the judgement with a pardon or reduction in sentence as soon as humanly possible.
Milk the proceedings as much as possible to provide “proof” that yours is a society of laws whilst tacitly or explicitly reiterating that the genesis of the crimes lay in the unwanted contact with the unlawful and brutal society of the victims.
But going back to the shell game of will-they won’t-they criminal proceedings, Israel has this procedure down to a fine art. And like all truly brilliant acts of public diplomacy, this practice exerts a disciplinary influence on both supporters and opponents of Israel’s foreign policy at home and abroad. Israel can keep Palestinian human rights activists running on a treadmill that they can’t justify leaving because there is always hope that a judicial process will provide some small relief from the greater tides of injustice. But it is some time since Israeli courts have done anything significant to constrain the Israeli occupation forces, which includes the courts themselves, and they barely do anything to constrain Israeli settlers either.
There is also a broader problem that is encouraged by Israel or the ICC dangling the prospect of criminal convictions in that it helps obscure the systematic criminality of the occupation. The recent news of the death of 18 month old Ali Dawabsha has highlighted what Ali Abunimah describes as a “hypocritical display… [of] crocodile tears”. By unreserved condemnation of a singular act, Israel’s leaders quite clearly intend to create a false image that acts to obscure the greater systematic violence. The problem is not just that Zionists use this technique, but that anti-Zionists end up being drawn into doing exactly the same thing in slightly different circumstances.
For example, Charlotte Silver of the Electronic Intifadahas reported that an Israeli, Lieutenant Colonel Nerya Yeshurun, was recorded ordering the shelling of a medical facility. Of course it must be reported when such evidence comes to light, but this tends to become what I would term “over-proving”. Not only did we already have eyewitness reports from Palestinians and international observers of such crimes, but Israeli personnel had already confessed such actions to Breaking the Silence.
As it stands, it is good that supporters of Palestinian human rights can point to this recording as being symptomatic because it shows that few Israelis consider it wrong to commit war crimes. On the other hand, if the focus becomes pursuing the punishment of Yeshurun on the grounds that he is a blatant war criminal and the prima facieevidence is impossible to ignore, then you get into very bad territory for the cause of Palestine.
Every erg of human energy that activists put into trying to get Yeshurun punished will be worse than a waste. Focussing on the one criminal risks entering an endless spiral of diminishing convolution. It will produce a discourse that combines screeching to the converted with a naïve belief that you can somehow shame your enemies into admitting that they are actually the bad guys. At the same time every bit of focus on Yeshurun’s blatant crime will devalue the clear testimony of Israeli whistle-blowers, of international observers and, above all, the voices of the Palestinian victims themselves. Perhaps even worse it will devalue the shared consensus experience. The media coverage of Operation Protective Edge in many countries was sufficient for most people to see that the narrative construction of a “conflict” is a farce. Despite the unusual number of Israeli casualties, what people saw and felt in their guts was a one-sided slaughter. Yet that comprehension is being eroded by a continuous miscontextualisation and the focus on individual crimes only furthers that diminishment of the greater truth.
And the odd thing is that the gut response of the uneducated layperson is a more sound legal opinion than than the mediated educated opinions of the mealy-mouthed weasels who function as international jurists. As long as Israel maintains its occupation and/or blockade of Gaza they cannot justify their actions under Article 51 of the UN Charter as being self-defence. That is true even if Gazan militants commit war crimes. That means that every single Palestinian killed by Israel outside of Israel’s borders, whether they are an armed militant or not, has been murdered. You can make a very good argument that even Palestinians who are killed inside Israel’s recognised borders are murder victims, because the Palestinians’ actions are still legitimate self-defence. This all means that by selecting certain individuals and prosecuting them you are inevitably suggesting that murder is legitimate if it is carried out in a certain manner, but not legitimate if it is committed while breaking other rules. You can see why I think that this is problematic. I am concentrating on the practical political realities here, but even in sentimental terms what does it mean to go after Yeshurun? What does it mean for the memories of those children murdered at the behest of Israeli officers and politicians who were careful enough not to be recorded ordering personnel to commit obvious war crimes? Where is their “justice”?
The mass murders committed by Israel are also part of a larger process of genocide. As with the Tamils a slow process of genocide will sometimes incline the perpetrators to commit acts of acute mass violence to weaken resistance to ongoing low-grade state violence and structural violence. Some Israelis, with a kind of schizophrenic and unnerving honesty, refer to this as “mowing the lawn”.
There are distinct genocidal similarities between Israel’s occupation of Palestine, Sri Lankan occupation policies, and US interventions in a number of countries both currently and in the past. However, the real reason that I bring up Israel here is the issue of the ICC, which bears some further attention still.
Earlier I posted a long condemnation of the ICC which was also a condemnation of those who are promoting an ICC investigation into Israel’s most recent crimes. I can’t really summarise the thousands of words I wrote on the issue of the ICC and Israel, but one key relevant point is that the “Rome Statute” states “a case is inadmissible where…[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” Immediately this places jurisdictional decisions in the realms of political judgement which inevitably favours the powerful over the weak. It is worth considering what that actually means in effect. It means that facts will exert one sort of influence in the form of a discourse of ideas and information, and it means that vested power will exert influence by shaping that discourse. If we view such a process as a contest between power and truth, the first thing we must take into account is the impact of “soft-power” on perception. This is used to ensure that public perception of the truth is muddled, uncertain and contested. When the powerful commit mass violence “soft-power” is used to minimise the perception of suffering caused, but the more crucial task is to conceal intentionality.
Once the manipulation of perception creates the widest possible room for debate in public, then in private the hard-power and the covert power are used to bribe, threaten, blackmail, subvert and co-opt both individual persons and institutions up to and including entire countries. Thereafter the powerful can be sure that officials will take the least action possible, which is quite likely to be no action at all. If a country like Sri Lanka or Israel wants to ensure that occurs it may choose to pursue its own prosecutions using the six rules I outlined above which will then enable the ICC to claim that the perpetrator country is rightfully exercising jurisdiction. Naturally this will be lapped up by journalists and bureaucrats alike, who so dearly love the tautological perfection of what is, to them, the best of all possible worlds. They will then convey this unto the public who will be split between the reassured and the nonplussed, whilst independent observers will rage ineffectually about the fact that we are drowning ourselves in our own smug bullshit.
I know that many people on reading this might think that this is all an extremist’s opinion on tactics, but that there are other equally valid opinions. To them, my opinion is likely to be seen as an expression of anti-authoritarian hatred or even the spiteful envy of one who is justly marginalised. But this is not a matter of opinion at all. The historical record is so clear that the only possible way one could advocate ICC involvement is through wilful ignorance to both the ICC’s record and the entire history of prosecutions for war crimes and crimes against humanity. Equally, to hold that an elite international judicial body will dispense “justice” that is not desirable to US and European imperial interests is almost laughably intellectually lazy. It is not a secret that rising within the hierarchies of international bodies is a highly political process combining both elements of diplomatic horse-trading for some positions with a need for high ambition and the requirement that personnel be the discreet and disciplined insider type. No one in their right mind should think that the selective processes and the situational factors which constrain the behaviour of personnel at the court would ever allow them to become worthy of any level of our trust. In fact they are worthy of contempt and condemnation because, whatever their self-righteous pretensions, they profit in material terms, and gain very high social status, by taking a key role in a monstrous imperial project that has visited mass violence and immiseration through structural violence on hundreds of millions of people.
It is vital that national and international functionaries be forced to confront the injustices that they perpetrate. That is the most important fight in the world today. Part of that fight is the fight to expose the suffering brought about and the fight to humanise victims. The other part, however, is the fight over contextualisation. Contextualisation is the most crucial issue. It is important to a degree that simply cannot be overstated, because miscontextualised human suffering becomes the fuel for ever more massive crimes of mass violence such as aggression and genocide.
Every atrocity that happens in the world today is being interpreted according to an updated version of the ancient chauvinistic binary categorisation of civilisation and barbarity. We are civilised which means that when barbarians kill other barbarians we must kill barbarians to save barbarians from their own barbarity. When we kill barbarians our intent, if not our actions, must be civilised because we are civilised. It can be true of any self-identified group, but it is most acute and most stoutly defended amongst Westerners who have deep reserves of chauvinism – a sense of exceptionalism that is almost impenetrable.
There are so many ideological components to Western chauvinism that it is hard to portray the entire phenomenon accurately. I propose that we think of it in terms of being a complicated, schizophrenic and contradictory form of “white” racism. I am, of course, acutely aware that African Americans, for example, can expound this racism and no one should downplay the fact that Barack Obama embodies this racism. Nevertheless, the concept of an entity called the West arose at the same time as the concept that there were people who were in some manner “white”. In practical terms the two are inextricable because no matter how imprecise our concept of what white people are, and no matter how expansive our notion of the West is, it will always be that of a hegemonically “white” culture. Because Western Europe experienced a technologically and culturally driven explosion of imperialism that saw them impose domination on people who on average were generally darker, sometime pronouncedly so, an idea of whiteness came about, even though it was very arbitrary in terms of actual pigmentation.
Western chauvinism actually came to combine ideas of progress, capitalism, Christianity, atheism, liberalism, democracy, freedom, humanism and humanitarianism among others, but I choose to emphasise racism because it is so easy to see due to the fact that it is literally constructed as a matter of black-and-white. For that reason it becomes possible to see that whenever we essentialise any notion about the West, such as the idea that it has liberal democratic norms, it is actually a dog-whistle racial reference.
To put it in simple terms, Eurocentrism and US exceptionalism are expressions of white supremacy. That means that they inherently propound the inferiority of non-white people. If we claim that the West embodies values or so-called “norms” of, say, “democracy”, we are of necessity saying the inverse of the non-Western world. Not only does this require a completely distorted reading of history, but it is inevitably racist. Because the concept of the West cannot be disentangled from a concept of whiteness, the implications of making such statements are to reinforce notions that white people are civilised and non-white people are barbaric.
Moreover, because of the need to selectively overlook the atrocious violence of Western imperialism, Western chauvinism (or “Eurocentrism”) is inescapably a form of racism that fuels double standards. It fuels doublethink, it fuels cognitive dissonance, it fuels the vicious contradictory fanaticism of the white-hatted mass murderer of indigenous peoples whose only explanation for such brutality is that he must have caught it like a contagion from the unnatural contact with savage peoples. And thus Westerners construct an ideology in which they themselves are the victims of their own acts of mass murder.
The struggle that must be undertaken, therefore, is to counter this massive agglomeration of ideology with the following understanding – the savagery is in the act, not the actor. Yet at every level in every society since the invention of agriculture, the powerful have always tried to ensure that they are not judged by their deeds, but rather by the good intentions that they assure others they have. From the boss of a small business, to the ruler of an empire we are always enjoined to see things from their perspective and to accept a priori their fundamentally benevolent motives.
[Below is a transcript which is about 95% complete and which contains links to some material that is cited in the commentary]
It would be a vast understatement to say that the word “genocide” is not well understood. In politics, in academia and in normal everyday communication the word is almost exclusively misused and abused.
You might believe that the normal everyday usage (or, sometimes the usage of those with the authority of knowledge) is definitive. What a word means is what meaning is given to it. In most cases I would agree. The usage by ordinary people of a word is where the word usually derives its meaning. Not, however, when that usage contradicts itself. Not when that usage can only misrepresent the actualities that it purports to describe. And not when it is completely divorced from its original meaning.
For example, a recent Buzzfeed article refers several times to the British “attempting” genocide against Aborigines. That makes no sense. Genocide isn’t a single act, like burglary. Genocide either happens, or it doesn’t. We don’t refer to the genocide of Jews in World War II as “attempted genocide”. We don’t even refer to an “attempted genocide” in Rwanda. People have a vague notion that genocide must somehow mean complete extermination, except that they are not consistent in that. Genocide is used in different ways according to political criteria,. This isn’t merely slippage, but it actually requires that people do not have an actual definition of the word. It is a word that has had its meaning suppressed because the concept that the word represents is a dangerous concept. It is a concept which cannot be held on an ideological leash. It will drag the holder into the brambles of radical unorthodoxy rather than let itself be led to the park to chase a frisbee.
Any limit to our vocabulary is a limit to our thinking. Our society, like all others, constrains our vocabularies so that some thoughts are unthinkable. We may live in a pluralistic multinational global culture that is in many ways organic and diverse, but the repression of thought to which I refer is systematic and purposive and it is in the service of power. All languages have words or phrases that others lack, but I am not suggesting that merely lacking the word for a concept is systematic repression. Instead, words like “genocide” or “terrorism” are stripped of stable rational meaning whilst being vested heavily with emotive affect. This is the process that creates an orthodox idiom – which is to say a systematically and coherently circumscribed mode of language and thought.
This meanings are, as I have said, suppressed rather than erased. It would be wrong to view these words simply as “empty signifiers” as if the arbitrary nature of language meant that one could exert one’s will over language with full control. That is a type of vulgar postmodernism – a megalomaniac fantasy such as Karl Rove was indulging when he said: “We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality—judiciously, as you will—we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out.”
Outside of Rove’s self-aggrandising fantasies, you cannot simply assign meanings to words at will. They must fit within a network of intelligibility that is grounded in a history of usage. Instead of simply redefining words what orthodox usage does is to load a word with emotion and political ideology whilst suppressing its basic and fundamental defining characteristics (which may be more or less broad, more or less faceted, and more or less mutable over time). This leads to an unstable and contradictory usage. That isn’t a problem to the orthodox ideologue but rather a great boon. It allows the word to be used differently according to need. Furthermore, because of the emotionality attached people will fight against any attempts to reinstate a stable and comparatively objective usage.
Genocide is exactly such a word. It first appeared in a work called Axis Rule in Occupied Europe, published in 1944. It’s original meaning cannot be erased because it is part of a network of inter-contextualised signifiers which exist in history. At the same time, though, that meaning is thoroughly obscured. People argue that something is genocide because it is really bad, while other people argue that you can’t call something genocide because it is not bad enough and to label it genocide would be an insult to victims of real genocide.
The meaning of “genocide” has not changed over time because the meaning was suppressed from the beginning. It was always a dangerous notion. People wrongly think that it was purely a response to the German atrocities that Winston Churchill referred to as “a crime without a name”. But Raphael Lemkin, who invented the term genocide, had long been thinking on this topic and what he described was a far broader and more historically significant phenomenon which didn’t merely describe acts of mass murder, but made sense of them. Unfortunately for Lemkin’s future career, once the logic of genocide is grasped it will reveal truths that are unpalatable and unacceptable. In the 1950s Lemkin devoted much of his attention to the genocides of indigenous people in the Americas, particularly North America. Lemkin established a clear intrinsic link between settler-colonialism and genocide and had he lived longer he would inevitably had to have recognised that the link between genocide and all forms of imperialism was nearly as inescapable.
Genocide is not, and never has been, something that you switch on and off. It is not a discrete act. It is not distinct from war and militarism, nor authoritarianism and political oppression. The institutions of genocide that a state creates will not end until they are eradicated. The German genocide in East Africa at the beginning of the 20th century created institutions which would later be instruments of genocide, but were also tools of repression used on political dissidents. Likewise, the institutions of genocide that are deployed in the Middle East and Africa are continuations of genocidal practices from Asia and Latin America, and are already imprinted in the nature of policing in the USA and in the authoritarian rhetoric and policies of David Cameron and the Conservative government in the UK.
Many contemporary thinkers from Sheldon Wolin and Giorgio Agamben to Jeff Halper and Chris Hedges are trying to grapple with the increasingly arbitrary nature of the state, its increasing hostility to humanity, and the increasing precarity of the people. (When I refer to the state here, I am referring to the nexus of governmental and “private” power which exercises effective sovereignty, not to the narrow concept of a governmental state power with formally recognised sovereignty). If we are to understand this situation in a way that will help to end its deadly progress, the greatest single step that we could take at this time is to reacquire the term “genocide”. Lemkin used it to describe the phenomenon that was the driving force behind German occupation policies in Europe. This inevitably also applied to Germany itself, though that was not Lemkin’s focus. For Lemkin the concentration camp was the defining institution of genocide. But Lemkin meant the term broadly. He considered Indian Reservations to be a form of concentration camp and would have most likely conceded that its is the power structure created by the barbed wire enclosures that is more important than the wire itself. For Giorgio Agamben the prevailing logic of the concentration camp is that of the “inclusive exclusion” and he has contended that that is the “biopolitical” paradigm of our age. The term “biopolitical” in its broader sense, refers to the way in which power exerts control over bodies, and I will argue that on a large scale the “biopolitical” becomes the “demostrategic”. At the large-scale demostrategic level, this paradigm of power may express itself in the very phenomenon of genocide that Lemkin first described.
In this series of articles I am going to draw threads together that show the need make appropriate usage of the term genocide as a way of revealing a pattern of destruction and mass violence that is interconnected. It is the millions of deaths in the Democratic Republic of the Congo; it is the permanent dysfunction and instability of Somalia and Libya; it is Plan Colombia; it is Iraq and Afghanistan; it is mass surveillance and it is the Trans-Pacific Partnership Agreement; it is Haiti and its is the political and drug related violence in Mexico; it is the “huge concentration camp” of Gaza and it is al-Sisi’s Egypt. This is the nature of US Rule on the Occupied Earth. It is all of a piece. It is all shaped by genocide. It is all becoming more genocidal.
Sadly, even the best intellectuals seem only to vaguely grasp that the term “genocide” has actual an definitional meaning. In contrast those who are more inclined to be opinionated or generally less inclined to to use cogent thinking are only too happy to forcefully tell people that their usage is not only wrong but offensive and dangerous. It is like the poem by Yeats, which, as it happens, foreshadowed the rise of Nazism,
“The best lack all conviction, while the worst
Are full of passionate intensity.”
Israel Shamir, for example, has let his anger at the misuse of the term genocide obliterate his mental faculties. He recently wrote that Lemkin coined the word genocide “in order to stress the difference between murdering Jews and killing lesser breeds. The word is quite meaningless otherwise.” He must know at some level that this is untrue, but he writes with thoughtless rage. The effect is to tell his readers not to even think about genocide – “It would be good to ban this word altogether.” That is not going to prevent the misuse of the word. In fact it plays into the hands of those who misuse the term in order the perpetrate aggression and genocide. The way to end the misuse is to treat the word genocide the way you would treat any other. When genocide is asserted we should expect that the usage is justified based on definitional criteria. As it is, telling a readership that already opposes imperialism and Zionism that the word “genocide” has no meaning only makes it easier to exploit the term for propaganda purposes.
“Genocide” is a word that itself exists in a state of exception. People will scream at you for suggesting that it can be weighed or compared in any way with anything else. Even some genocide scholars call it a “sui generis” phenomenon, meaning that they want to say that it cannot be defined, but they reserve the right to label some things as being genocide on the basis that they themselves know what it is when they see it. Moreover, there is a broad intellectual trend to treat genocide as a sacred word which only special experts may employ, because any improper usage would be hyperbole and damaging to one’s credibility.
Sadly this was the case on the radio programme Against the Grain, which is from broadcast Berkeley by KPFA(a storied non-profit radio station which also broadcasts the superb programme Flashpoints).
Against the Grainis aptly named. In a world of growing anti-intellectualism, interviewers and producers C. S. Soong and Sasha Lilley do their work with a depth that is hard to find elsewhere in political analysis. They interview intellectuals with the sole aim of facilitating the transmission of ideas and information. No words are wasted on flattery or extraneous personal detail. Above all, when Soong or Lilley conduct an interview they are very conversant with the material they are discussing. Most impressive to me, though, is that they never assume that the interviewee can’t explain something to the audience. They don’t try to avoid things on the grounds that they might bore or confuse us mere plebs, instead they chop them up with timely interjections so that they are digestible and so that the flow is maintained. In other words, they make it as easy for the audience as possible, but they don’t pander in any way.
Pandering is, of course, the one of the great intellectual plagues of our age. Ideas that came from the realms of marketing and mass entertainment have spread to infect all corners of society. The ideology of using a restricted vocabulary of words and ideas in order to never tax people’s brains by asking them to learn something new is an obvious recipe for disaster. You cannot learn if you are never presented with anything you do not already know. Pandering makes people stupider on the whole, but it also makes substantive change impossible. Pandering is not just about avoiding inflicting the pain of thought on people, it is also about not disturbing ideology. In political activism pandering is rife, and it is always represented as being “tactical” and “realistic”. That is why I appreciate a programme, like Against the Grain, that pulls no punches and tells it like it is.
However, if there is one thing on which people are guaranteed to pander in both intellectual and ideological terms it is the topic of genocide. People mystify it and misuse it. They sneer at the people who dare to suggest that the US or Israel or the UK is committing genocide, because they “know” that anyone making such an accusation is just engaging in political sloganeering. This is supposedly “debasing the coinage” in the words of the late Michael Mandel, showing that even the most admirable people can be very stupid when it comes to this topic.
Equally admirable people show that there is another face to this debased coin, using the term “genocide” to try to raise the alarm on the world’s horrors. A recent example of this was an interview with Professor David Isaacs on the plight of asylum seekers held on Nauru. What he reveals is an alarming and inhumanly cruel situation. It is a situation that cries out for action. But then he says that he is told “don’t use the g-word, the genocide word, … or people will think you are too extreme”. He is thinking exactly the same way that Mandel thinks, but from the other direction. In their construction “genocide” is a type of currency that is to expended when our subjective sense of alarm tells us that something is really really really bad.
For this reason, I was disappointed but not exactly surprised when the subject of the “g-word” was broached on Against the Grain and then treated as some special mystical term whose applicability could only be determined by the most authoritative authorities. This was towards the end of an otherwise excellent interview about the plight of Sri Lanka’s Tamils now, 6 years after the end of the 26 year-long civil war.
What was described by interviewee Anuradha Mittal is a textbook example of genocide. In genocide the killing of the victim population as such is not the end it is the means. When he first coined the term “genocide” Raphaël Lemkin wrote the following:
“Genocide has two phases: one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor. This imposition, in turn, may be made upon the oppressed population which is allowed to remain or upon the territory alone, after removal of the population and the colonization by the oppressor’s own nationals.”
In other words, the Sinhalisation of both the Tamil peoples and the land to which they belong is a defining genocidal characteristic. The direct violence of genocide arises because resistance is inevitable. The deprivation of social, cultural, religious, economic, and linguistic capital is itself a form of violence which victims cannot help but resist.
Mittal’s interview reveals that it was persecution and communal violence that initially drove some Tamils into an armed separatist movement. Now in the aftermath of the long bloody civil war she gives details of conditions based on a recently released report that she authored. Once you understand the concept of genocide, what she is describing in every aspect is symptomatic of genocide. Everything she talks about is characteristically genocidal, from the way the hegemonic victor tries to enforce a certain historical narrative through memorials, to the way the land is imprinted with a state, military, religious or linguistic character to alienate it from Tamils. In fact, the most salient and striking genocidal features are not the mass violence, but the unusual things such as having military run tourist resorts in occupied territory. That sort of behaviour only makes sense in the context of genocide.
At one point Mittal quotes Dr Rajani Thiranagama: “Objectivity, the pursuit of truth and critical, honest positions, is crucial for the community, but is a view that could cost many of us our lives. It is undertaken to revitalize a community sinking into a state of oblivion.” In that spirit, it is absolutely essential that genocide be understood for what it is. Without full and frank comprehension it will never end, even if the intensity of direct violence waxes and wanes.
Consider the persecution of Jews under the Reconquista, when Spain and Portugal were conquered by Christians 500 years ago. The persecution arose from a confluence of interests of state-building political elites, religious authorities seeking to increase power, and individuals looking to acquire land and other property sowed seeds of violence that would continue through the ages. The state sought to integrate Jews as “Conversos”, but the state also sought to repudiate that conversion in order to enforce uniformity, exercise religious authority and sieze property. In other words, the Converso’s became the “included exclusion” – the very circumstance to which concentration camp inmates are subjected. From that came the concept of “Crypto-Jews”, leading to the ideological linking of Judaism with occult conspiracy. Additionally the concept of ineradicable and heritable “blood guilt” was used. This not only fuelled future pogroms, but arguably formed a key ideological foundation of all modern racism. In the same manner, until the genocide of the Sri Lankan state is comprehended, exposed and repudiated by consensus, the ideological tools for future genocidal violence will remain intact. Tamil resistance, whether violent or not, will be delegitimised as “terrorism” and this will in turn be used to legitimate violent and deadly repression.
That is why my heart sank so low when the conversation on Against the Grain turned to genocide. There was a general tone shared by Soong and Mittal that was suggestive of the “ultimate crime” which the exchange portrayed as being beyond mere “war crimes”. Then Mittal said that the question of whether genocide had occurred should not be prejudged but should be decided by the “international community”. This makes me want to ask, what does that mean? Is it somehow above your pay grade to weigh the evidence? Is genocide something so controversial that only the high and mighty can pontificate on it? This is anti-intellectualism. Mittal is tacitly stating that we should not think about such things and that the thinking should be left to authorities. And what authorities are these? The term “international community” effectively means the US State Dept. or what Noam Chomsky has labelled as “IntCom”. This is true regardless of the intent of the speaker because if you promote the “international community” then those who control the usage of that term in political discourse get to decide what it entails and your original intent is meaningless.
Things took a turn for the worse when Mittal brought the ICC into the conversation. I don’t know what mania is gripping people at the moment, but every advocate for victims of persecution seems to think that the solution will be found by putting people in the dock at the Hague. I think that this is some sort of woefully misplaced yearning for a corrective patriarchal authority figure, and it poisons our discourse on genocide and on war crimes. People think that wrongs must be righted by the exercise of power in order to grant some psychologically satisfying sense of balance. This is quite divorced from practical realities including that of actually ending today’s atrocities, rather than fixating on a tiny percentage of those that occurred a generation ago. Does anyone actually look at the record of the ICC? There are some informed apologists for the ICC out there, but even they don’t defend it actions thus far as much as they claim that it will do better things in the future. Critics like David Hoile cannot be countered except with speculation about how wonderful the ICC will be at some future point. Hoile is an old Tory who may or may not be in the pay of Sudanese war criminals, but when he (a right-wing white man who was once photographed with a “Hang Nelson Mandela” sticker on his tie) debated the ICC in the pages of New Internationalist, he was far more convincing in suggesting that the ICC was institutionally racist than Angela Mudukuti, who argued that “attempting to undermine its legitimacy with allegations of racism will take the global international criminal justice project no further.” It is well worth looking up that debate for the sheer surrealism of the fact that the young bleeding-heart African woman effectively tells the old hairy white male Tory that he needs to be more trusting of the authorities or he will harm their efforts to run the world in an orderly manner. Whatever one thinks of Hoile, though, he has published a 600 page volume on the ICC which is full of substantive criticisms that stand regardless of his history or motives.
The fact is that if you don’t accept in advance that the ICC is both benevolent and a repository of expertise and authority, it is pretty difficult to see anything good in its patchy record of expensive and unacceptably lengthy proceedings all of which are against Africans. As an instrument of justice it is inefficient, dysfunctional and pathetic beyond belief; as an instrument of neocolonial domination it is very expensive, but probably considered worth the price by the European powers which bankroll its activities; as a propaganda instrument capable of making slaves scream out for more chains and whips, it is clearly priceless beyond measure.
The fact is that many national courts and international bodies can chose to exercise so-called “universal jurisdiction” over cases of genocide anywhere in the world. The ICC is a very silly place into which to channel one’s energies, but are prosecutions in general any better? There are two problems here. … Labelling genocide as a crime has become a very harmful distraction. It is this, more than anything, that has turned the term into one that is so misused for political ends. Genocide is represented as “an act” and the “crime of crimes” that exists in the world of black-and-white morality where its ultimate evil justifies acts of great violence, and makes people feel the glow of self-righteous anger.
People like to call for prosecutions because it is an instant source of gratification. The judicial system becomes a proxy instrument of violence either as combat or retribution. This is appealing to those who are in one way or another impotent. Prosecutors are symbolically taking the role of their antecedents, champions of weak who fought in trials by combat. Sometimes the most fervent advocates of this form of state violence are “pacifists”. The problem seems particularly acute in the US where the punitive impulse runs very deeply. It seems that US citizens are induced to feel acutely threatened and constrained by the domestic or foreign Other and are thus prone to support police, judicial or military state violence.
You might think that it is good that state violence be used against those found guilty of genocide and, to the extent necessary, those merely accused of the crime. That is fine if you call it what it is – retribution. If you consider that to be justice, then your concept of justice is retributive. I know that some would also argue that victims gain a sense satisfaction and closure, but since the vast majority of the victims of mass violence will never have access to this “satisfaction” it is a rather hollow and bitter virtue.
People talk about prosecutions as if they will have practical beneficial ramifications in ending violence. This flies in the face of the historical record. No one is ever prosecuted before they are in one manner or other defeated. In some cases they might be the sacrificial offering by a criminal grouping that consolidates itself by allowing one member to be culled, but more often it is simply a matter of victor’s justice. The accused is defeated by hard power means before they are ever detained. They might be very guilty of heinous crimes, but guilt is in fact incidental to a thoroughly political process.
Meanwhile, the ICC enthusiasts claim to be all about ending impunity. If you actually just step back for a second you will see that the application of international criminal justice in the ICC, ICTY, ICTR and in national courts does absolutely nothing to end impunity. Instead of viewing Charles Taylor and Slobadan Milosevic as villains who deserved punishment, imagine what message their prosecutions sent to the world. It is the same message sent by the deaths of Saddam Hussein and Muammer Ghaddafi, and that message is that the only hope for someone who is targeted by the US is to fight to the death. Making peace and going into exile is not an option. International criminal justice is only victor’s justice against the vanquished and a neocolonial weapon in fighting Third World nationalists.
The only other way that someone responsible for mass violence might be prosecuted is when the real war is won on their home turf. That real war is the intellectual and moral struggle – the fight to expose the means and ends of those who commit mass atrocities and, above all, the fight to vanquish apologetics. Jay Janson, who writes in Dissident Voiceand Counter Currents, castigates people like me for not constantly calling for prosecutions of US officials and for not condemning every single citizen of each and every Western state to be a war criminal. He is right though, to point out that we must never stop referring to the crimes of the US “hyper-empire” as crimes. But history shows that the crimes do not end until the regime itself is recognised as criminal. It is not enough to recognise individual acts as crimes or actors as criminals. A majority of US citizens once recognised US interventions in Indochina as war crimes, but it changed nothing because it was constructed as a failing and a failure, not as a success.
Fatuous pundits and lying politicians like to claim that the US relies on “international legitimacy” and that this makes military interventions failures, but if you examine the history of US war crimes and crimes against humanity you can see that they follow the Maoist principle that all power comes from the barrel of a gun. They coerce other countries, including close allies, into treating them as legitimate. The real problems for the US regime that arose from the aggressions against Indochina were a dispersed and pluralistic domestic insurrection, that might have consolidated into a revolution, and a mutinous military. Once they had those problems solved they went back to serial aggression and serial genocide and many millions have died as a result. Therefore, it is necessary to create a consensus that the political establishment is criminal as a whole. Once that fight is won you can choose to try and move forward with prosecutions, as in Argentina, or with a truth and reconciliation process, as in South Africa.
Prosecutions are not a road to change. You can’t expect the corrupt institutions of a corrupt society to take any action that does not make the problem worse. The best that a campaign calling for prosecutions can be is an awareness raising campaign. If you really think that if you mobilise people and push hard enough some top-down bureaucratic judicial body will make a positive difference, then you need to find out what time it really is. We don’t need to lock Bush and Blair in prison, we need to de-legitimise them, disempower them, disempower those who support them, and end the criminal regimes of which they are merely transient components. It is true that if George W. Bush were in prison he wouldn’t be able to charge $100,000 to give a speech for a charity raising money for amputee veterans. But as grotesque and freakish as that is, the Bushes, the Clintons and Tony Blair only get so much money because a whole stratum of society worships power. In a situation that is equally reminiscent of pre-revolutionary France and Nazi Germany, our elites simply do not have any functioning morals. Without coercion they will never even acknowledge a moral component to the exercise of power, but will fawn all the more over those that commit war crimes because that is an exercise of great power.
In Part 1 I discussed various things relating to the International Criminal Court. With all its humanitarian rhetoric, the actions of the ICC have consistently been a source of injustice and suffering. Moreover it has been the enemy of truth – perhaps the greatest crime because it can perpetuate suffering for generations to come.
Part 2 deals with, among other things, the undue deference paid to those who professionally don the mantle of humanitarian. These are not great humanitarians, quite the reverse. Just as hierarchies of “knowledge” can produce ignorance so can “humanitarian” hierarchies militate against humanitarianism. By analogy, if I want to hear a cogent perspective on US foreign policy I would almost be better off heading to the pub and looking for someone in the mood to be candid than I would be in heading to a foreign policy think-tank. Equally, once professional “humanitarians” have internalised the idea that they are inherently moral, it is pretty easy for them to neglect morality altogether.
I feel that it is constructive to cultivate contempt and anger at those who are more-than-comfortably well off because of their role within agencies of dysfunction and harm such as the ICC. At the same time I am aware that critics of people within institutions often personalise criticism – not as insults nor ad hominem critiques, but as a presumption that a mistaken intellectual stance must be the result of bad intent. Obviously, I am not saying that we should extend the benefit of doubt to Obama or Kissinger or Power. Sometimes, even if people believe that they are doing the right thing it is not relevant. Pol Pot thought he was doing the right thing, but so what? For people with less executive power, though, it is generally counterproductive to attack their motives.
My answer is to cultivate contempt for the collective, and respect for the individual. Self-satisfaction is destroying the intellects of people who succeed in many walks of life, and none of us plebs should continue to feed that.
Preventing Peace
When an accused criminal is the demonised leader of a Third World state, there can be no compromise according to the pundits. Only prosecution to the utmost extent of the law is acceptable, even if innocent people must die to achieve this.
When official villains, certified by the US State Department, are up for prosecution we enter Oppositeland. War is peace and the rule of law means lawlessness. The pundits enter a cop-show fantasy where law is not an imperfect instrument of ethics, but a tool of righteous justice. The rule of law doesn’t mean abiding by the law even when the results are not to your liking, but it now means breaking the rules to ensure that the bad guy is always punished. For example, in How America Gets Away with Murder, Michael Mandel pointed at the “absurdities” of Western newspapers touting the triumph of the “rule of law” after Slobadan Milosevic was illegally extradited from Serbia under extremely political circumstances.
The bloodlust and the self-righteousness can lead to a lot worse than subverting sovereignty and bringing the law into disrepute. Hard lines on “the end of impunity” are a potential enemy of peace both indirectly and directly. Take the case of Charles Taylor. He ended a civil war and left the country when he was offered exile in Nigeria. The US Congress soon voted to offer a $2 million bounty on Taylor. Richard Falk criticised his later capture, prosecution and conviction on the ground that it was selective prosecution serving US political ends: “…when the application of international criminal law serves the cause of the powerful, it will be invoked, extended, celebrated, even institutionalised, but only so long as it is not turned against the powerful. One face of Janus is that of international justice and the rule of law, the other is one of a martial look that glorifies the rule of power on behalf of the war gods.”
There is hypocrisy, and the direct intervention of neutralising enemies through the courts, and the implicit threat to other Third World leaders that if they do not run their country according to US wishes they may end their lives in a prison cell far from home. But in some ways, those things are not the worst of it. The worst thing is that the next Charles Taylor will look at his future and weigh whether to concede defeat in war and flee the country. Remembering Taylor, he or she will decide instead to fight to the death and thousands of others will die as well.
That is an indirect way of promoting conflict, but ICC indictments can be used to more immediate warmongering effect. Shortly before NATO started an air war against Libya in 2011, the UNSC instructed the ICC to investigate Libya (despite the fact that the US, Russia and China refuse to be subject to the ICC themselves). The probe centred on the killing of political prisoners in a prison in 1996. As Phillippe Sands pointed out at the time the very existence of the investigation made a negotiated settlement to the civil war in Libya less likely. Indictments for Muammer Ghadaffi, his son Saif al Islam and his brother-in-law came less than two months after NATO bombs killed another of Ghadaffi’s sons and three of his grandchildren. Both flight and negotiation became impossible. The indictment ensured that fighting would continue – meaning that people would continue to be killed and maimed.
Given the timing and the political nature of the decision to indict in the midst of war there are really only three possible reasons for the indictment. One is that US and European leaders wanted to make a salient demonstration to the world of what happens to leaders who they dislike and they don’t care how many Libyans are killed in order to make that demonstration. (In retrospect the Panama invasion of 1989 can be seen as such an operation, and the best estimates of Panamanians killed in “Operation Just Cause” are in the thousands.) The second possibility is that the same powers were actually desirous of conflict in Libya as a divide-and-control strategy whereby independent development is curtailed by ongoing destabilisation and ever-renewable civil strife. This would be entirely fitting within a pattern of interventions which has sown conflict and degraded central governance in dozens of countries. The third option is that both of the previous options are true in varying degrees.
Colonisation by NGO
Palestine is one of a number of societies rife with NGOs. Mandy Turner has shown that the “liberal peacebuilding” practiced by these NGOs is a colonial practice and a contemporary “mission civilatrice”. Israel’s colonial practices are “at the expense of Palestinian self-determination”, but Western-backed “peacebuilding” is “at the expense of a development strategy for national liberation”.
The “liberal peacebuilding” prescription of “neoliberal policies of open markets, privatization and fiscal restraint, and governance policies focused on enhancing instruments of state coercion, ‘capacity building’ and ‘good governance’” is simply neocolonialism. These are the practices developed by the British and imposed wherever possible on colonies, former colonies and parts of the formal empire. Once upon a time it was called “liberalism” now it tends to be called “neoliberalism”, but it amounts to the same thing – colonial control that ensures both dependency and impoverishment. The main difference here, and in other neocolonies, is that the former colonial power does not have an exclusive concession and the exploitation and expropriation (which may be of donor money rather than indigenous wealth) is a multinational Western project.
In short, while Palestinians are concentrated into fragmented reservations by Israel’s settler colonial project, within those patches an additional burden of neocolonial servitude suppresses independent development. But as Turner also indicates, part of the neocolonial NGO dominance is the delegitimisation of violent resistance: “…the ability to decide whether someone is or is not a ‘partner for peace’ and thus act on this decision is unequal. This phrase, therefore, made Israel’s attempts to control Palestinian political elites seem innocuous. It also allowed donors to believe that funding and working with Palestinian elites regarded by Israel as being ‘partners for peace’ would assist their mission of supporting the peace process. In its application this paradigm has variously meant Israel justifying cutting off revenue transfers to the PA, arresting and detaining democratically elected Palestinian politicians, extrajudicial executions and military violence. It has also been used by donors to justify cutting off aid, reverting to ‘bad governance’ practices, and supporting regime change. It has been, in effect, the discursive framework that has bound the two practices of control together and has given them common purpose.”
One Person’s Terrorist is Another Person’s Legally Elected Political Representative
Building on Turner’s work another legal scholar, Vicky Sentas, gave this talk on “peacebuilding as counterinsurgency”. Her focus is on the listing of the Kurdish PKK as a terrorist organisation, but the logic applies equally to Palestinian armed resistance formations given that they all have been or could be declared terrorists on the basis of their resistance activities. The terrorist listing is even worse than politically motivated accusations of war crimes or crimes against humanity because it prejudicially criminalises people on the basis of belonging to a designated terrorist entity. If you delegitimise resistance or insurgency on the basis of acts designated as “terrorism” than all personnel become “terrorists” regardless of their own actions.
Of course the main use of the term “terrorist” in the last 100 years has been as a way of delegitimising armed violence from non-state actors. Our elites work hard to avoid any suggestion that terrorism might actually refer to the intentional use of terror per se, because that would inevitably mean that the greatest terrorists are the most powerful states. Noam Chomsky’s famous assertion that we ignore the “wholesale” terrorism of militarised states and concentrate on the “retail” terrorism of armed non-state entities doesn’t really suffice. “Terrorists” means people with weapons or destructive implements who we don’t like and who we can get away with labelling as “terrorist”. Whether they actually practice the use of terror is not relevant. Anticolonial rebels were called terrorists; the resistance to German occupation in Europe were labelled “Bolshevist terrorists”; the Viet Minh and later the National Liberation Front were labelled “Communist terrorists” from which came “Charlie Tango” and hence “Charlie”. The only difference is that now we have an international regime, subject to US hegemony, which makes this political, and inherently oppressive, act into a internationally legalistic one.
The idea of terrorism itself is a way of implying that the organised armed violence or property destruction of a group is illegitimate as being criminal and outside of the behaviour of combatancy. The old-fashioned approach was to suggest that belligerent parties such as insurgents must be treated as combatants. After the cessation of hostilities the victor could legitimately label the defeated foes as traitors and deal with them as such. This is hardly perfect and does nothing to prevent victor’s justice and judicial massacres. On those grounds some might think that it is a pointless distinction to make. But there is a certain sense that if the belligerents were criminals en masse because terrorism is a crime, then they would properly be dealt with by the normal policing and judicial processes of the state in question. If the response to an organised challenge is military violence, paramilitary violence, counterinsurgency, “counter-terror”, political violence and or political terror, then you are in a situation of armed conflict and the enemy should be treated as a combatant, at least for the duration.
Anyone who has Followed the Thread of This Article to This Point…
… deserves a medal. But they also might be asking: “Hang on, surely joining the ICC will strengthen Palestinian claims to statehood and make their resistance more, not less, legitimate.” I wish it were so, but it is unfortunately more accurate to say that those countries that are subject to the ICC may find themselves in the same situation as Palestinians if they face aggression or occupation. They may find that politically determined accusations about the manner in which armed resistance is conducted or internal conflict is dealt with are used to delegitimise all resistance either informally or formally through the enforcement of terrorist listings.
Bear in mind, too, that entities like the US and Israel have a long-standing habit of conflating armed and unarmed resistance activities. In Viet Nam the US coined the term “Viet Cong Infrastructure” (VCI) to designate people who had sympathy for the National Liberation Front and the People’s Liberation Armed Forces (PLAF). The term Viet Cong had already conflated combatants and non-combatants who opposed the Saigon regime, now the VCI designation worked in the same way as a “terrorist” or “VC” designation, legitimising deadly violence as if the victims were combatants yet denying the rights accorded to combatants. VCI were the prime target of the notorious Phoenix Programme. Unlike actual NLF officials or PLAF personnel those fingered as VCI, often by tortured suspects, were easy to abduct or kill at their homes.
A similar mentality is even applied now domestically in the US, with the designation of “material support for terrorism”. This sounds like it could only mean substantive support for actual terrorism such as providing money or materiel to suicide bombers. In practice the case of the Holy Land Foundation 5 shows that it is political designation intended to conflate the crime of thinking the wrong thoughts with unlawful acts of violence. The victims of that judicial persecution are serving sentences of up to 65 years for sending money to charities allegedly controlled by Hamas. They were not accused of funding terrorist activities, but of sending funds to a terrorist entity.
The HLF5 defendants are claiming that they were entrapped because they tried to get a State Dept. list of approved charities, but were denied. The point of the exercise is to create a political language in which giving charity to orphans is “terrorism”. This accompanies an ongoing exercise to “rebrand” military violence, including killing civilians, as “humanitarian”. The most important thing to remember is that this has worked. If you put “holy land foundation trial” into a search engine that does not anticipate your desires (such as duckduckgo), you will find that their conviction was a victory against Jihadi terrorism and the plot to enforce Sharia in the United States of America.
This illustrates that we are really faced with two possible ways of dealing with the overall issue of armed mass violence. We can either accept the Nürnberg precedents and the UN Charter. This would mean that war is illegal, all people have a right to life and that the aggressor is culpable for all loss of life and suffering. The UNSC would be able to authorise legitimate military action, but it could only do so in accordance with the UN Charter, which can only mean acting as a collective defence against an aggressor. This is a highly imperfect system and many bad things can happen to people that this particular system does not act to prevent or discourage. On the other hand, this system outlined does not actively facilitate atrocities, while the alternative does.
The system that is favoured by the US, and ultimately promoted by the ICC, is one in which the armed violence is legitimate if carried out by lawful combatants in a lawful manner. Unlawful actions by lawful combatants are not legitimate, but they are a side-issue of individual criminality. In contrast, unlawful acts committed by unlawful combatants are the retrospective rationale for justifying unlawful status and all resistance by unlawful combatants is unlawful. In other words, might makes right. Lawfulness or unlawfulness depend entirely on the ability to control perceptions. The powerful are allowed to commit mass violence against the weak, and the resistance of the weak will make them the perpetrator and justify the acts of the powerful.
Israel’s Persecution Complex
The ICC’s significance is inevitably that of a public relations exercise. Even the “end of impunity” enthusiast must readily admit that the Court’s function is not to provide specific deterrence but to create general deterrence (supposedly by ending impunity). In fact, there is no evidence or concrete reasoning that would support that claim, but it has a veneer of rationality. This isn’t a matter of common ignorance, this is highbrow ignorance for superior idiots only, but even on these terms the putative general deterrent effect is the result of managing perceptions. Thus even the supporters know that ICC activities are a form of display, and their trial are inevitably show trials.
Because the ICC is one big politicised PR exercise, legalistic analyses of the ICC are less important than discursive analyses. I have concentrated on the ways in which the ICC is part of the ongoing process of creating an international political discourse of “good guys” and “bad guys” in which the powerful control the language, the conversation and thus, ultimately, the perception. This is a thought control process aimed largely at the intelligentsia. But in the case of Palestine, ICC membership will further another project of thought control – that of the Great Israeli Persecution Complex.
Historically Jews have suffered a great deal of persecution. In Europe during World War II this persecution became something that truly defies words. Even at a time when unspeakable acts and unimaginable suffering were the experience of many millions throughout the world, the fate of Europe’s Jews stand out. The German concentration camp, slave labour, and extermination camp systems, and the mobile civilian mass-murder systems, exceeded all historical precedents of cruelty. I do not write that lightly and I am not forgetting Potosí, nor the Atlantic slave trade, nor the victims of Japanese occupation, nor the Ukrainian Terror Famine, nor any of the other great obscenities of humanity. Jews were not the only victims, by any means, but in some respects they were the key and exemplary victims.
If Zionism had ever been purely a response to persecution, perhaps the lesson of the Shoah might have been commit to opposing all acts of genocide. It would be an anticolonial movement. But Zionism was never purely about an enduring escape from persecution. It has always accommodated a combination of nationalism, colonialism, racism, chauvinistic religious belief, and Imperial power politics. In addition we must account for the role that greed and love of power play in all political movements that provide outlets for them. Thus, inevitably, the response to the Shoah was not an organic response that would reject all genocidal cruelty, but an exploitative one by a existing system of power hierarchies whose human components seized on the emotional and political capital provided by the murder of millions.
The historical persecution of Jews and the Shoah actually have very little to do with the realities facing Israel. I am not saying that there has never been persecution of Jews in the Arab world, nor that anti-Judaism is no longer a matter of concern in Europe or elsewhere. These are complicated issues which I cannot get into here. I will confine myself to pointing out that when the Argentine junta was detaining Jews and sending them to camps where they were sometimes tortured in front of pictures of Hitler, and many were killed, the Israel’s government sided with the neo-Nazis, not against them.
But when it comes to the occupation of Palestine, the exploitation of past persecution is the gift that keeps on giving. The ICC will provide an ongoing opportunity for the Zionist regime to harp on about how the entire world hates Jews on a regular basis. It will be like the Goldstone Report on a loop track.
To refresh your memory, the Goldstone Report was slanted against Palestinians. Richard Goldstone, the lead author, is an avowed Zionist despite his history of opposing apartheid. This was a fact finding mission, not a judicial inquiry, but it should still have addressed the question of aggression. Instead it misleadingly affirmed Israel’s right to self-defence. Noam Chomsky characterised the report as being pro-Israel on those grounds. It was also disproportionate, devoting considerable wordage to Palestinian militant activities, when if weighted by deaths caused Palestinian activities would barely get a mention.
Goldstone had watered down some aspects of the report against the wishes of his co-authors, yet on its release the Israeli government lead a chorus of Zionists, neocons, white supremacists and Islamophobes around the world that shrieked like stuck pigs. They claimed that the whole thing was part of the giant world-wide conspiracy of the Jew-hating UN. Goldstone later strengthened these cries by undermining the report with his name on it. All three of his fellow authors issued their own contrary statement, but hardly anyone heard about that.
This is another one of those inversions of reality, this time in three steps rather than two. When Operation Cast Lead was occurring the raw images tended to show the truth – a helpless besieged people were being attacked in a one-sided slaughter. But if you try searching “goldstone report bias” in duckduckgo you have to scroll down a great deal to find anything that counters the notion that the report was biased against Israel, and I don’t even know how many hits you would get before the first one that suggested a pro-Israel bias.
Even anti-Zionist outlets like Electronic Intifada devote their attention to decrying Goldstone’s later betrayal and defending the Goldstone Report against accusations of anti-Israel bias and completely neglect to show the important ways in which the report was unreasonably and unfairly biased in Israel’s favour. That, far more than the report’s actual contents, is the contribution of the report to posterity and our understanding of Israel’s actions in Gaza. Expect more of the same.
Binyamin Netanyahu has just succeeded electorally by taking a “hard line” and playing on fear and racism. The Great Israeli Persecution Complex has become part of an ever-intensifying spiral of extremism where each new crime necessitates a more insane world view. The world increasingly sees the bare injustice of the genocidal project of Zionism in Palestine. The response within Israel and for their fanatical supporters, who are increasingly confined to the US, is the paranoiac vision of a world of savage “anti-Semites” who oppose Israel out of hatred for Jews.
In reality the international community and the UN greatly favour Israel at the expense of Palestinians, including the diaspora. The UN was Israel’s midwife (the father of the child, Britain, decided that it was not desirable to be present at the birth). The UN has acted to shield Israel from the consequences of realising the human rights of Palestinians. It is a complicated story which can be found by scrolling halfway down here or you could just watch Vera Gowland-Debbas here and here. In short, what it means is that every single member of the United Nations, meaning your government, has a specific moral and legal obligation to act to secure the long absent rights of the people of Palestine. They have failed to do so for 66 years and the only reason for not doing so is the potential negative impact on Israel. No country has any such obligation to Israel nor, especially, to the “Jewish state of Israel”. Individual Israelis have the same human rights as we all have, but the state of Israel has no rights which can override the human rights of millions of Palestinians.
They Walk Among Us!
And who will stand for Palestinian human rights? Our over-privileged and well-tailored liberal apparatchiks advocate that the world’s problems will be solved by meting out white-man’s justice from on high. Self-appointed as God’s gift to human rights, in reality these individuals act to reproduce the most cruel and destructive imperialist violence. They perpetuate the most deadly circumstances of direct mass violence and of structural violence. These are the clerics of Hernán Cortés (“Cortez the Killer”) singing hymns to the righteousness of his bloodletting. They share their apparently capacious catholic faith with overtly hawkish liberal interventionists and neocons, but in reality this is a narrow orthodoxy fitting the requirements of “ostensible diversity concealing actual uniformity”.
Many people have come to realise that “neconservatives” are just a subset of “liberal interventionists”. The fact that highly prominent liberals have always been part of the neoconservative movement, and the fact that they both have identical “moral” facets of foreign policy prescription should have made more people realise this earlier. Still, even now most people are blind to the fact. This is an understandable result of the manner in which these ideologies are presented to people as contending and the manner in which the ideologues criticise each other. The political “debates” between various foreign policy factions in the US are nothing but frenetic, and ultimately unbelievable, theatre. The rhetoric clashes, but the exceptionalist interventionism matches – as do the concrete deeds.
For me it is no stretch at all to see some prominent “humanitarians” as blood-drenched imperialists. As soon as I read Samantha Power’s A Problem From Hell I knew she was exactly as she now appears to us all. It doesn’t take a genius, it just takes actual thought. The neocons themselves considered her book a must read. And she is far from alone.
Human Rights Watch (HRW) has been described as having a “revolving door” relationship with the US State Dept. Amnesty International (AI), in addition to a long history of providing atrocity propaganda to support US interventions, has been implicated in helping a US regime change plot in Eritrea, along with HRW. The US State Dept in 2011 seems to have specifically funded a joint AI/HRW delegation to Eritrea as part of a destabilisation plan. Many of the people within these organisations are dedicated and well-meaning, but the seem oblivious to the malevolent nature of those running things. The clearest example is Save the Children, whose employees were shocked and appalled at the decision by their superiors to give Tony Blair a “global legacy award”.
What shocks me is that people are actually surprised to find that the folks who run big NGOs are power-loving elitist scumbags. I feel like I’m the guy in the movie They Live who has what Slavoj Žižekdescribes as “critique of ideology glasses”. When wearing the glasses he sees, among other things, that most rich and powerful people are hideous and foul creatures who are the enemies of humanity.
I am not suggesting here that all rich and powerful people are literally malevolent parasites from another species. What I am suggesting is that their humanity is irrelevant. It doesn’t matter if they are loving parents or kind to animals. It doesn’t matter if they spend at least 20 hours each week washing the feet of lepers. In our unequal society even charities are often dizzyingly steep hierarchies; the dynamics of power, and the group dynamics of elite psychology, mean that with some exceptions these people might just as well be bloodthirsty baby-eating reptiles from outer space.
People reflexively defer to the authority of these “successful” people, because they are programmed to believe that advancement within a hierarchy comes through merit, while at the same time they project their own disinterested humanitarian values on to these people. What I see is what I saw in Susan Power, Tony Blair and Barack Obama. These people are happy to take selfies with Bill Clinton, or share a stage with Henry Kissinger. When they debate a neocon like Robert Kagan it is in an atmosphere of mutual respect, if not admiration. The only powerful Westerners who they don’t love are those who actively play the vicious villain, like Donald Rumsfeld, and even then that is entirely contingent and will change as soon as that villain is reinvented by a PR firm and a couple of journalistic puff-pieces.
People like Susanne Nossel (head of PEN, former executive director of AI USA, and warmonger) should only provoke disgust and anger in anyone who really cares about human rights. It is completely irrelevant if they don’t understand why we hate them and if their precious feelings are hurt. They have drunk so deeply from the well of Western hypocrisy that the only thing that can remain true within them is the love of power. The political powers and functionaries that control the ICC are no different. Some may be perfectly well-meaning, particularly if their involvement has simply followed logically from their area of legal expertise, but most are liable to be slime in human form.
The idea that human rights are advanced by a political process of choosing individual designated criminals and punishing them with maximum possible fanfare is likely to appeal to the worst fake humanitarians. Imprisoning people is not a humanitarian pursuit. A true humanitarian is more concerned with emptying prisons than filling them. Moreover, someone who really cared about justice would want to see a stronger International Court of Justice – able to rectify interstate injustice, not spend billions of dollars on prosecuting a handful of cherry-picked expedient pre-fab demons.
I happen to think that many of the people involved in the ICC are most likely to be horrible self-righteous bastards, but even if many of them are deeply concerned humanitarians it does not change the institution. Hans von Sponeck recently said on Democracy Now!“There is a new chief prosecutor in The Hague. And we are now—in mid-April, on the 18th of April, in fact, the War Crimes Commission will meet yet again in Kuala Lumpur to prepare for the second, and hopefully last, draft submission of this documentation to the International Criminal Court.” Obviously there is no harm in handing reports to the ICC, but why bring up the new prosecutor? In the context which he gives the implication is that there is a prospect of the ICC indicting US officials. Does he believe this? Does he identify with the ICC officials and project his own benevolent intents on to them? Is he confused about the difference between the way people act in the real world and, say, the way they might present their desires at a social occasion?
That is why I hang my head in despair when I hear someone as admirable as Dr Francis Boyle discussing the ICC as if Palestinians have nothing to lose, as if the worst of their worries is simply that the ICC will be unable to act on their behalf. In his own words, Boyle “advised President Abbas to accept the jurisdiction of the International Criminal Court….” And, because I know that Boyle an intelligent and caring man, from my very bowels comes the unstoppable question: “Are you out of your fucking mind?”
Conclusion
Inevitably the ICC will do everything possible to seem as if it is responding to public pressure to prosecute Israeli crimes, but it will not prosecute Israelis. It will be biased in favour of Israel, but that will be represented as being even-handed and objective by some, and as being biased against Israel by others. Many supporters of Palestine will be sucked into defending the ICC against accusations of bias.
Palestinian leaders will be threatened with ICC prosecutions both publicly and in private. This will deepen the already profound constraints and controls imposed on them by Israel and the US. This may be enough to erode the ability to resist armed mass violence by Israel, such as the resistance to “Operation Protective Edge”. That conflict was once again a one-sided act of mass-murder, but armed resistance caused enough IDF fatalities that there must have been some deterrent effect. That deterrence will be eroded if Palestinians do not feel able to use armed resistance.
Already Palestinians are beaten with the stick of the Hamas terrorist designation. On the other hand Al Jazeera‘s “Palestine Papers” illustrate that Palestinian Authority leaders are compromised in other ways. I draw the inference that Israeli actions such arresting legislators or the 2002 siege of Yasser Arafat’s compound were ways of creating threats which are levers with which to control PA leaders. The PA leaders might not be traitors as much as they are responding to the political realities of the world that they live in. The ICC will provide more ways of threatening and controlling some Palestinian leaders while turning the other into outlaws. It is all bad news for Palestinians.
Meanwhile, the goodhearted people of the world will be drawn into a narrative of atrocity calculus. The criminality of all Palestinian resistance will be arranged alongside the criminality of a few Israeli bad apples. When all eyes see mounds of Palestinian dead, we will still have our thinking obfuscated. The victims will be made to seem the criminals. The ICC will turn up the volume of the conversation which avoids, at all costs, trying to examine the deep historical issues of justice, and instead yells stridently and chest-thumpingly about the criminality of the “bad guys”.
Meanwhile Israel’s leaders will exploit the empty threat of ICC prosecutions against them to deepen the sense of the whole world is hostile to Jews. Israelis and Western Zionists will be deafened to criticism of Israel’s crimes, slipping ever deeper into the lake of Kool-Aid beneath the mirror surface of which lies Oppositeland.
“I was bred and born in the briar patch, Brer Fox,” he called. “Born and bred in the briar patch.”
And Brer Rabbit skipped away as merry as a cricket while Brer Fox ground his teeth in rage and went home. – “Brer Rabbit and the Tar Baby” retold by S.E. Schlosser.
I had hoped to be writing of his legacy, but sadly Binyamin Netanyahu is here to stay. Nevertheless, one thing is clear even from the flip-flopping Israeli premier, and that is his strenuous objection to Palestinian accession to the Rome Statute – the treaty governing the International Criminal Court. But all is not as it seems. The ICC is no real threat to Israel, nor its occupation, nor its illegal settlements and creeping annexation, nor the slow genocide of the Palestinian people. Bibi is playing the role of Brer Rabbit – “Please don’t throw us in the ICC briar patch” – safe in the knowledge that the only people likely to be hurt by ICC thorns are the Palestinians.
A Move Against Israel?
Both Hamas and the Palestinian Authority have supported Palestine signing the Rome Statute – a treaty which will make Palestine subject to the International Criminal Court (ICC). This is part of a tactic to establish statehood for Palestine be the establishment of de facto state credentials within multilateral institutions.
I am unsure what sort of fantasy land people inhabit, but supporters of Palestine seem, on this issue, to have decided that black is white and up is down. Their positivity relies on the potential for the ICC to become something which it currently is not, and the potential for Palestine to make use of this future development in some way which would currently be symbolic but somehow maybe might someday be more than symbolic in some manner that we cannot yet foresee. On the negative side of the equation we have the immediate reality that Palestinians are now subject to prosecution by the ICC and Israelis are not.
Just to make sure you get that: becoming signatories to the ICC means that Palestinians are subject to prosecution, not Israelis.
Yet Netanyahu and the US State Department are acting as if Palestinian accession to the Rome Statute were a move against Israel. It can only mean that Israeli and US leaders are deliberately objecting to the Palestine ICC membership as a way of giving credibility to a move which might otherwise greatly alarm supporters of Palestine. Netanyahu is trying to make us all think the the ICC briar patch is his greatest fear, but the ICC is certain to work against Palestinian interests. As I will detail below, the ICC is a tool of neocolonial oppression by design; it will embed a double standard which favours the powerful over the powerless in general, and Israel over Palestine in particular; it will fuel Israel’s self-justifying claims of persecution; and will continue the ongoing imperialist work of undermining the sovereignty of all nations which defy Western domination.
The (New) Scramble for Africa
The ICC throughout its existence has been a political tool of neocolonial oppression aimed specifically at the former colonies in sub-Saharan Africa. 60% of its funding comes from Britain, France, Germany, Italy and Spain, the former colonial powers in Africa. Naturally this gives them considerable control over the Court, but it is also under the direction of the United Nations Security Council (UNSC). Of the 5 permanent UNSC members two have themselves signed and ratified the Rome statute – the UK and France. Between them the British and French empires once ruled half of Africa, with Britain additionally exerting informal hegemony over other areas such as the Belgian Congo.
Normally even critics of the ICC acknowledge the “noble” sentiments and hopes with which the ICC was launched in 2002. I believe that to be a load of crap. The people behind the ICC are not noble at all. Anyone can fall to ignorance or false hope, but those actually involved are highly privileged elitists whose self-deception is only exceeded by self-righteousness, self-regard and self-congratulatory selfies. That may seem harsh, but my condemnation is not gratuitous, as I will explain later.
All 36 indictments issued by the ICC have been against Africans. People act as if its record thus far is some unfortunate aberration which will be rectified, but the politicisation is systemic. David Hoile has written an large comprehensive volume (Justice Denied: The Reality of the International Criminal Court) detailing things that are wrong with the ICC. I cannot do justice – so to speak – to this work, but here is a small sample from the introduction:
The court has claimed to be “economical”, yet it has cost close to a billion euros to conclude one deeply flawed trial. … The court has claimed to bring “swift justice” but it took several years to bring the first accused to trial for allegedly using child soldiers. … The court claims to be fighting impunity, yet it has afforded de facto impunity to several serial abusers of human rights who happen to be friends of the EU and the USA, and granted de jure immunity to non-member states such as the USA.
In the ICC, one has a court whose judges are appointed not because they are the best legal minds in the world, but because of squalid vote trading. Some are appointed because it is a cosy retirement job; some are washed-up politicians; some are diplomats; some use the court as a waiting room before greater things; others are appointed because their governments pay the ICC a lot of money; and some don’t even bother to show up for work because something better came along. We have judges making critical rulings on very difficult issues of law who have never been lawyers, let alone judges. We have judges who have pressed for legal indictments on the basis of what they have seen on CNN. We have judges who cite classical Greek mythology to justify prolonging Africa’s civil wars rather than to put peace before selectively retributive European law. We have judges who are political activists with little practical experience beyond abstract sloganising. And we have judges who have taught law in classrooms without any courtroom experience whatsoever.
The ICC has produced witnesses in several trials who recanted their testimony when in the witness box, admitting that they were coached by non-governmental organisations as to what false statements to make. We have seen prosecutorial decisions that should have ended any fair trial because they compromised the integrity of any subsequent process. We have seen trials stopped because of judicial decisions to add new charges halfway through proceedings. And most telling of all, the court brought into being in 2002 to punish the most serious crimes in the world, the most grave of which being waging a war of aggression, has consciously avoided meaningfully addressing aggression – managing to postpone any action for at least another decade. It has turned a blind eye to the invasion and occupation of both Iraq and Afghanistan by Western military forces.
It certainly can be argued that there are plenty of indictable people in Africa, but indictability is not guilt. We tend to think that prosecutions of African “war criminals” are justified by the inevitability of their guilt, but these are political actors, and politics distorts narratives. What is more, evidence of guilt seems far less relevant to ICC decisions than political concerns. In global terms the cases pursued are not in any way the most urgent in terms of the gravity of the accusations nor the weight of evidence. For example, though it is difficult to summarise, the situation with regard to Kenya makes it very clear that ICC personnel are willing to act with shameless disregard for real issues of justice.
After elections in 2007 Kenya was wracked with communal violence. An estimate 1300 people were killed. The loser of the election was Raila Odinga. He disputed the election and violence followed. Most of the victims were supporters of his opponent. Raila Odinga is the most prominently pro-Western leader in Kenya – a supporter of neoliberalism and foreign investment. It was very clearly Raila’s claims of election fraud which triggered the violence, and I will repeat here most of the victims were supporters of Raila’s opponent. Despite this, the ICC has charged members of both sides as they were at the time. The indicted are charged with being indirect co-conspirators by having organised networks in advance which committed ethnic violence and retaliatory ethnic violence. Raila is not charged with anything.
The narrative that ICC prosecutors are trying to present, then, is that each side had conspired to bring about these acts of violence beforehand. So, for example, Uhuru Kenyatta is accused of having met with others to conspire to commit violence, but the violence was triggered by his political enemy, initiated by followers of his political enemy and was mostly carried out against those perceived as his political supporters. He is alleged to have paid and directed members of the Mau Mau inspired Mungiki – an organised criminal militia/gang which is normally a bitter and deadly enemy of the government – to commit retaliatory violence after the anti-Kikuyu violence begun by the election result. He is alleged to have coordinated police actions to give Mungiki the freedom to carry out the violence. When the a pre-trial Judge summarise the allegations in his dissenting opinion, they sounded rather far-fetched. According to David Hiole, the original key witness against Uhuru recanted, reportedly in early 2009, leaving only those who corroborate a story told by someone who no longer claims it is true. Nothing in the remaining testimony in any way indicates what Uhuru Kenyatta might have hoped to gain by organising mass murder, rape and ethnic cleansing.
You might ask why Uhuru Kenyatta doesn’t just let the case go to trial, if it is so thin. One reason is that since being indicted Uhuru has been elected President of Kenya. It seems that a lot of people in Kenya were of the opinion that the ICC indictments were a political attack against opponents of Western interests and enemies of pro-Western Raila Odinga. Hoile quotes a Chatham House report suggesting that people believe that even the indicted political allies of Raila were, in fact, more rivals than allies. One defected and became Uhuru’s running mate in 2013 despite the ICC allegation that they were engaged in opposing conspiracies of ethnic violence. Both Western interference and the political nature of the ICC charges were more or less confirmed by the reaction of the EU and the US to the growing popularity of Uhuru in as the 2013 elections approached. Individually a number of EU nations threatened diplomatic and economic consequences should Kenyatta be elected. More jaw-dropping, though, was the extremely unsubtle threat that US Ambassador Johnnie Carson made in public by repeatedly telling the Kenyan people they faced “consequences” depending on the way they chose to vote in the election. This is from the representative of a country that passed the American Service-Members’ Protection Act for the explicit purpose of preventing its own citizens from being held accountable for their incredibly large numbers of easily proven war crimes.
The other reason that Uhuru Kenyatta might want to avoid a trial is the legendary slow pace of the ICC. Jean-Pierre Bemba has been in custody for 7 years and he has still never been convicted. Now information has surfaced that members of his defence team have been harassed and interfered with.
Remember that a criminal court is supposed to either prove guilt beyond a reasonable doubt or acquit. The ICC is supposed to afford a presumption of innocence before conviction. In what universe, then, is it considered just to imprison an accused man for 7 years whilst trying to cobble together enough evidence to secure a conviction? Bemba may not actually be innocent, but justice requires that he either be convicted in reasonable time or be released.
To summarise, ICC proponents might see themselves as shining white knights, but everything that the ICC has done thus far has been squalid and foul. Whether or not the given accused are guilty, these are show trials made into grotesque parody by the fact that the lead actors are too stupid to understand the role they are playing. The ICC is the progeny of the equally execrable pantomimes of power that occurred at the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR). You can read more about that here.
Embedding Double Standards and Injustice
I used to work at a stall in a local market that was occasionally frequented by the former Prime Minister of my country, the Right Honourable Geoffrey Palmer QC, and I have often fantasised about what I might say to him in the entirely plausible event that I am able to address him. It is possible that I would use rude words because Palmer was the Chair of the 2010 inquiry by the UN into the Mavi Marmara incident.
The “Palmer Report” was a travesty. As Richard Falk explained, Palmer “was not particularly knowledgeable about either the international law of the sea or the law of war. And incredibly, the only other independent member of the Panel was Alvaro Uribe, the former President of Colombia, with no professional credentials relevant to the issues under consideration, and notorious both for his horrible human rights record while holding office and forging intimate ties with Israel by way of arms purchases and diplomatic cooperation that was acknowledged by ‘The Light Unto The Nations’ award given by the American Jewish Committee that should have been sufficient by itself to cast doubt on his suitability for this appointment. His presence on the panel compromised the integrity of the process, and made one wonder how could such an appointment can be explained, let alone justified.”
The Palmer Report found that Israel used excessive force, but that its blockade was legal. However, in point of fact it was not really an investigation but rather a PR exercise that was a predetermined endorsement of Israel’s blockade of Gaza in particular and its occupation of Palestine in general. The terms of reference excluded the overall legality of the occupation and thus made it inevitable that the blockade of Gaza, an intrinsic part of the occupation, would be deemed legal. By analogy, if a bank robber shot someone during a robbery you wouldn’t accept a plea of self-defence on the basis that the victim lunged and caused the robber genuine fear. You can’t refuse to examine the context of the greater crime and make reasonable judgements. The fact that the shooter is robbing the bank cannot be excluded from consideration.
Let us be quite clear, accepting Israel’s claimed right to intercept the Mavi Marmara is much more insane than accepting a self-defence plea from someone who murders a hostage in a bank robbery. For a start it would mean that Israeli officials had reasonable cause to believe that there were weapons aboard the vessel. But the flotilla of the Mavi Marmara was an extremely public action, not a weapons smuggling operation. Israel’s rationale for its blockade is self-defence, but it doesn’t show any way in which this is linked to the interception of the flotilla. Israel does make claims about small arms and “paramilitary equipment”, but they are less to justify the raid itself than to justify the deadly violence.
The fact is that Israel claimed that this was a deliberate provocation aiming at destroying the blockade, but if Israel’s justification of the blockade is self-defence it cannot claim the right to enforce the blockade against vessels which it does not suspect of carrying weapons shipments. As it happens Israel cannot even legally invoke self-defence until it has ended its occupation – another factor conveniently overlooked by top legal thinkers like Palmer. I have previously described the limits on self-defence claims:
Israel claims the right of self-defence, but what does Article 51 of the UN Charter actually authorise? “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” Well, the UNSC has indeed been apprised of this situation and has passed resolutions to restore international peace and security, but Israel will not comply with those resolutions. In order to claim the right of self-defence Israel would first have to relinquish all occupied territories, among other things. And that is a normal established understanding. An occupying force does not have a right to self-defence. Nor is it permissible to blockade a country and then “defend” against their armed resistance to that blockade. If these things were not true then you would have a situation where both sides can claim self-defence with each supposedly defending against the other’s defence.
The fact that Israel is using force to prevent humanitarian aid encapsulates the fact that the blockade is an illegitimate act of aggression which, in turn, gives legitimacy to armed resistance by Palestinians. You cannot judge the actions of any party in a conflict without examining the legal context of that conflict – or you end up spouting irrational victim-blaming nonsense like the Palmer Report.
Everything that applies to the Palmer Report in this regard also applies to the Goldstone Report. Law dealing with the legality of a conflict is called jus ad bellum, whilst law dealing with the legality of conduct during conflict is called jus in bello. By only dealing with jus in bello questions we end up in a morass of illogic, but we also inevitably privilege the most powerful party and the aggressor in any conflict as well as disadvantaging the party whose territory is the site of the conflict.
But jus ad bellum matters cannot be ignored. They are fundamental. People have a right to life and it does not just disappear because there is a war on. It is not legitimate to kill people in war, rather the illegitimacy and the criminal culpability are, all things being equal, located with the aggressor. The personnel that actually commit acts of violence are allowed to do so on two grounds, one is that there is reciprocal risk faced by belligerent personnel, and the other is that criminal responsibility for causing violent death and destruction lies with the aggressor.
This raises a side matter which is very relevant to the moral legitimacy of Israel’s state violence against Palestinians: Sebastian Kaempf argues that the moral legitimacy of the use of violence by combatants has been disintegrated by the asymmetry that exists in current warfare. The moral justification which allows a soldier to kill is based on reciprocal risk between belligerent personnel. One might argue that at least morally, and possibly legally, someone who is engaged in risk-free killing is not a “combatant” by any reasonable understanding of the term “combat”. A related legal question is whether UAV operators or even Special Forces personnel are entitled to “combatant privilege”, which is the legal basis for their violence and destruction. It was arguably stretched by powerful artillery and aircraft, but it is comprehensively broken by the one-sided and very low risk warfare engaged in by the US. This is especially so in the case of drones, but it is also true of helicopter gunships such as this one: or the Collateral Murder video; or the sequence at the end of Fallujah: The Hidden Massacre.
The technology allows US personnel to commit distant leisurely cold-blooded precision killing of people who have no chance of striking back and no chance of escape. Two of this videos show the deliberate murder of wounded people, but all of the victims here are effectively hors de combat. One might argue that these are war crimes on those grounds. Killing unarmed wounded people is definitely a war crime. Killing people on suspicion of being engaged in insurgent activity is murder in any respect. And when insurgents attempted to surrender to personnel in an Apache gunship, the crew were ordered to murder them an the ground that they were not allowed to surrender to airborne personnel – a crystal-clear example of a war crime.
Israel’s attacks on Palestinians fall into the same category. The moral justification for armed violence is destroyed by the disparity of risks, notwithstanding the number of fatalities sustained by the Israeli occupation forces. In addition the actual applications of force against alleged combatants become either arguably or inarguably criminal acts in and of themselves due to the incapacity of the victims. Also there is a prohibition on placing civilians at risk in order to reduce risk to your own personnel. We are aware of this with regard to the use of “human shields”, but it also applies to airstrikes which kill civilians in order to reduce risks to combatants.
Supreme Crime
The Nürnberg (Nuremberg) Tribunal ruled “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.” This suited the victorious Allies, of course, but it also means that the law relating to war can be reconciled with the fundamental right to life. Anything else would mean that when if anyone rich or powerful enough to start a war decides that their ends are best served by war, then ordinary people’s lives are simply forfeit – to be taken without any repercussions. Wars kill people therefore, unless you think that the powerful have the self-arrogated right to take lives “for reasons of state”, wars must be illegal.
People seem to think that war is somehow morally distanced from the individual acts of violence which occur in war. We seem to have forgotten the lessons learned from German aggression and we have slid back into voluntarily abdicating our morality in favour of allowing authorities to make such decisions for us. We just follow orders.
A case in point is the ruling by judge Anne Mactavish [sic] in Canada against the application for refugee status by US deserter Jeremy Hinzman. “An individual must be involved at the policy-making level to be culpable for a crime against peace … the ordinary foot soldier is not expected to make his or her own personal assessment as to the legality of a conflict,” Mactavish wrote in her 2006 decision. “Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper.” This is directly contrary to the spirit of two the Nuremberg principles. She is basically saying that she is happy if he is coerced into committing violent crimes because he himself will not be prosecuted.
If the war wasn’t clearly illegal Mactavish would probably have cited arguments for its legality rather than ruling that legality irrelevant. Iraqis have the legal right to resist aggression and occupation and those who do so have a right to life. Mactavish is revealing that she doesn’t really care about the deaths of Iraqi combatants. These combatants are innocent as much as any non-combatant is innocent. They are engaging in legally sanctioned armed resistance. They are human beings whose nervous systems transmit pain as much as a civilians; who feel the same fear and grief; and who will be mourned as deeply. As far as I can ascertain, at base the only reason Mactavish doesn’t take this view is that she is a disgusting racist who has embraced the dehumanisation of any Arab who resists Western power. You cannot think the way she does without being a racist bigot at some fundamental level.
Naturally, this all relates to the situation in Palestine. The UN Partition Plan of 1947 was of highly dubious legality under the UN Charter itself. The subsequent ethnic cleansing and confiscations of Palestinian property during the Nakba were crimes against humanity. The Israeli occupation of the remainder of Palestine in 1967 is very clearly illegal. UNSC resolutions 242, 338, 446 reaffirm the patent illegality. As mentioned above, under this circumstance Israel’s only legitimate form of self-defence, under UN Charter Art. 51, is to first comply with the UNSC resolutions and end the occupation. The continuing occupation involves continual armed violence as well as other acts which fit the category of acts of war – to the extent that the term still has meaning – or crimes against the peace.
What this means is that armed violence by Palestinian resistance fighters is legally legitimate. They have what is called “combatant privilege”. They are legally allowed to kill people within the limits of International Humanitarian Law (IHL). (This is the jus in bello component which makes it illegal for combatants to target non-combatants and other such things.) The “combatant privilege” allows combatants to legally kill – not because the lives of those they kill are not afforded any protection under the law, but because the criminal culpability for any killing lies with the aggressor, not the specific combatant who physically carries out the act of killing.
Combatant’s privilege, by the way, does not require that the combatant be a uniformed regular in a state military branch. The requirements are: “(1) operating under military command; (2) wearing a fixed distinctive sign (or uniform for regulars); (3) carrying arms openly; and most important, (4) conducting military operations consistently with the laws and customs of war.” State belligerents always deny the applicability of combatants privilege to non-state resistance forces. The German did for the “Resistance” in Western and Northern Europe as much as they did for the “Partisans” in Eastern and Southern Europe. The British denied combatant status to anti-colonial rebels like the“Mau Mau” and far too many others to mention. At the turn of the 20th century erstwhile allies of the US in Cuba and the Phillippines became unlawful combatants. So too did erstwhile allies in the fight against Fascism after the end of WWII in Greece, Viet Nam, Phillippines (again), Indonesia, Korea, and Malaya. More recently, of course, the US has famously declared many more of its enemies to be “unlawful combatants”.
Both in history and in our own times, the only reason to deny combatant status en masse is in order to commit war crimes. Those declared “unlawful combatants” are subject to torture and summary execution in every historical instance. For example, one might argue that ISIS/Daesh personnel are not legal combatants, but what would be the practical purpose? A robust moral stance would be to treat captives as prisoners of war until the cessation of hostilities. After hostilities have ended it would be possible to charge them as criminals using normal legal proceedings. The only other legitimate approach would be to treat each suspect as a criminal suspect from the outset and accord them rights, such as habeus corpus, on those grounds. The only reason for conflating the ideas of criminality and combatancy, as the US does, is as a way of denying and circumvention human rights in order to commit atrocities.
It is true that a combatant who deliberately disguises their combatant status by feigning non-combatancy forfeits combatant privilege as such, but that does not mean that one can simply deny the right of armed resistance to those who cannot form regular military units. If people have the right to self-defence from foreign aggression and occupation that means that they have the right to armed resistance. That cannot legitimately be restricted in such a way that prevents the victim of aggression from resisting because they do not have the material capacity to fulfill certain predetermined criteria.
The right for irregular guerrilla forces to be considered combatants has been established clearly and indisputably, albeit against the wishes of the late nineteenth century Western imperial “Great Powers”. The response by the “Great Powers” then or now is to accuse their weaker opponents of hiding behind civilians. Whether it was the Prussians accusing the franc-tireurs or colonial regimes such as the French in Alegria, such accusations serve a dual purpose. The first is to delegitimise the armed resistance in order to use judicial and extrajudicial acts of incarceration, torture, maiming and execution. The second is to legitimise their own attacks on civilians. This itself works on two levels: suggesting that military necessity (namely, legitimate attacks on armed targets) requires the targeting of civilians who become “collateral damage” in a legitimate military endeavour; but at the same time the second element is to produce a schizophrenic ideological discourse which destroys the distinction between combatant and non-combatant. This is a technique, or a symptom, of genocide. Violence is inflicted on the target population by blurring combatant and non-combatant status and creating in people’s minds the vision of a weaponised people. But don’t take my word for it, this is what Adolf Hitler said: “This partisan war has its advantages as well. It gives us the opportunity to stamp out everything that stands against us.”
Israel frequently claims that its enemies hide among civilians. This is an excuse for killing civilians, but they also know that they must continue at all costs maintaining the international consensus that armed actions by Palestinian formations (“militants”) do not have the foundational legitimacy of military operations. Ironically, however, it is powerful militarised states like Israel and the US whose personnel may not have legitimate combatant privilege. In a journal article that complements Sabastian Kaempf’s reasoning on reciprocity of risk, international law scholar Jens David Ohlin argues that whether uniformed or not both drone operators and special forces personnel do not meet the requirements of lawful combatancy. There is nothing that prevents this logic being applied to any personnel, including ordinary grunts, engaged in a mission which is not that of a lawful combatant. In refusing to treat enemies as combatants, powerful states are themselves increasingly embracing paradigms of violent force that are morally and legally equivalent to paramilitary death squad activity.
All of this is outside of the jurisdiction of the ICC. Aggression was one of the four types of crime outlined in the Rome Statute, but it was undefined and hence outside of consideration. An amendment addressing this will come into force in 2017, but it must be individually ratified by each state.
But even if they can prosecute the crime of aggression the entire setup will militate against justice and will always favour the powerful against the weak. Aggression will not now become the missing context, but will rather just be another potential crime for Third World citizens to be charged with. The very nature of this criminal court is to pluck certain selected villains from immense complex and multifariously criminal circumstances of mass violence and to charge them in isolation from the masses. Of necessity this will always be a political process, even more so than ad hoc tribunals. In theory ad hoc tribunals such as the ICTY or ICTR could treat all belligerent parties even-handedly. They don’t, of course, but the ICC cannot in any conception be even-handed in its approach.
With jurisdiction over nearly half of the world’s war crimes, crimes against humanity and genocides prosecutions by the ICC are inevitably political. These are show trials and they fuel the Hitler-of-the-Month-Club demonisation of Third World leaders that forms the backbone of Western interventionist propaganda. That is true of the entire process even if a case never goes to trial or if the defendant is acquitted.
Can you imagine how much mileage the US State Dept. and the Israeli hasbara (propaganda) agents would get out an ICC indictment for, say, Khaled Mashal from Hamas? They would milk it for all its worth and that would be to the detriment of every single Palestinian alive, even those who despise Mashal. The ICC will help Israel justify killing Palestinians because it will help replace the image of a people with the image of a single demon, and when you want to conduct a war against a people, which is to say genocide, it is very useful to convince your own people that you are fighting a single tyrant.
Israeli Impunity, Palestinian Punition
By practicing its pious “end of impunity” criminal prosecutions the ICC ignores the context questions such as which belligerent is the aggressor and who is a legal combatant. Instead, its real contextualisation comes from the politics of neocolonialism. Theoretically these questions should not have much impact on the question of guilt or innocence in war crimes. Jus in bello applies to all combatants, right?
Actually, not right. The Nürnberg Tribunal ruled that Russian partisans, as resistance to aggression, could not be tried for war crimes. This has been an issue right up until 2010 when Latvia successfully appealed a prior European Court of Human Rights ruling which had ruled against their conviction of a Soviet partisan for a 1944 war crime.
I am not going to argue that armies of “liberators” should be able to commit mass murder, mass rape and war crimes with impunity. The law must reflect basic principles such as legal equality – even to victims of “liberators”. International humanitarian law precedes the Nürnberg Tribunal and has been developed and elaborated since. As far as I am concerned the mass rapes committed by the Red Army in 1945 were war crimes and many of the “strategic bombing” missions undertaken by the Western Allies were acts of mass murder.
When you are dealing with forces of resistance not recognised as combatants by the aggressor/occupier, the moral situation changes. For one thing, to immunise them from war crimes prosecutions is not to grant them impunity. If they are adjudged unlawful combatants by the occupier, by nature the more powerful belligerent, they are subject to all of those judicial or extrajudicial hazards outlined above – incarceration, torture, maiming and death. They have no impunity and even their friends, family and community may be at risk from retaliation, collective punishment or the violent technologies employed in extrajudicial executions.
Failure to treat resistors as lawful combatants highlights a certain moral coherence to the idea that it is the aggressor/occupier that is culpable for their war crimes. Legitimate acts of resistance are treated as crimes by the occupier which effectively destroys the rule of law with regards to war crimes. That does not mean that they cannot be culpable for some criminal acts, but they did not create the circumstances which prompted them. A court cannot ethically judge them if it does not seek to prosecute those responsible for the aggression. In that sense the principle that aggression is the “supreme crime” makes considerable sense.
The culpability of the aggressor for the war crime committed by the resistor is actually morally greater than that of the resistor because it is unmitigated – the original act which created the circumstances of the resistors crime was itself a crime. Once again we can use the analogy of an armed bank robbery with hostages acting in lawful self-defence but committing acts which are themselves crimes. Deliberately killing the child of the hostage taker is a crime, but if the robber has already killed 10 hostages by that point, the circumstance have a considerable bearing. It would be completely wrong to charge a hostage with murder but refuse to charge the robbers or consider the circumstances in which the crime was committed as relevant.
In fact, it is possible to argue that killing a child was justified and a court would would then decide whether, in the circumstances, that was “reasonable”. (I personally don’t think that in the real world it is ever reasonable to kill a child, but if you want to find people who do think it is reasonable the best places to look are not where slavering terrorists strap bombs to little girls but places like the White House where killing children is routine practice and they simply state that “the price is worth it”.)
Not only are basic legal principles important, but there is at least one part of international law that is even more fundamental than IHL, and that is the UN Charter. The ICC relies on the UN Charter for its authority. So does the UNSC. The UN Charter is fundamental to the notion that there is a modern international state system in which there is international law. People have described it as the global “constitution”. This is of considerable relevance to Palestinians because the ICC process will not put alleged crimes in that context.
For example, if people have a right to self-defence, then they must practically be allowed to exercise that right. A case in point is rocket fire from Gaza. It is not so much argued as screeched by Israel and their supporters that the rockets fired by Gazan militants into Israel violate the principle of discrimination which requires that combatants distinguish between military and civilian targets.
I want to look at the rocket fire issue from a couple of angles, but first let me remind people that it is a real possibility that this alleged war crime might be the cause of prosecutions. In our Orwellian world where “freedom” quite literally means “slavery” – as in Operation Iraqi Freedom and Operation Enduring Freedom – “resistance” also means “aggression”. Everyone’s favourite Peace Prize-winning older and larger brother (Obama) said the following about rockets from Gaza: “…we strongly condemn the continuing rocket fire into Israel and the deliberate targeting of civilians by terrorist organizations in Gaza. No country can accept rocket fire aimed at civilians, and we support Israel’s right to defend itself against these vicious attacks.” He knows, of course, that the rockets from Gaza did not actually “target” civilians and that the real accusation is that they were not accurate enough to discriminate between targets as required by law.
Obama has used a simple two-step rhetorical technique to invert reality. First he turns allegedly indiscriminate rocket fire into “targeting civilians”, which provides a 90º angle. Second, he states that Israel has a “right to defend itself” which implies that it was Gazan militants who fired first (a lie) and obfuscates the nature of Israel’s actions over the long term. That provides another 90 degrees. Voilá, we have now turned 180 degrees to enter Oppositeland, where black is white and truth is lie. Obama can only do this because the news media are subservient vacuous apparatchiks, but it also shows that he and the US establishment are committed and implacable enemies of the Palestinian people. At a time when most of the world watched in horror as Gazans were mutilated and slaughtered by the hundreds, Obama chose to attack them. He gave arms to Israel in the middle of the slaughter so that they could kill more.
Take time to think about what that means. As children were being dismembered and incinerated every single day, this man, Obama, deliberately twists the facts in a calculated way to make the victims seem then perpetrators and the perpetrators seem as victims.
Meanwhile, in the UK David Cameron remained a staunch supporter of “oasis of freedom” Israel. He spouted exactly the same line as Obama even when members of his own caucus and cabinet objected. These are the most powerful Western leaders, and they are quite happily prepared to cold-bloodedly attack Palestinians during a time of intense suffering. They weren’t forced into it by the “Israel Lobby”; they are not scared of Netanyahu; they do not love Netanyahu. Nor does this have anything to do with party politics. Blair and Bush would have done the same, and they were from the putatively opposing parties. They do it because they are cold-blooded mass-murdering imperialists whose geostrategic ends are furthered by the deaths and suffering of Palestinians – just as they were furthered by the deaths of Salvadorans, Laotians, Indonesians, Koreans, Vietnamese, Guatemalans, Philipinos, Eritreans, Congolese and many many more.
Ask yourself what these Western leaders are going to do with the fact that Palestinians will be subject to ICC prosecution. What I foresee is that the next time Israel wishes to commit a genocidal slaughter in Gaza, Palestinian leaders will now “investigated” for their “crimes” no matter what they actually do or don’t do. The ICC brush will tar the entire Palestinian people and the Western public will be forced once again into a discussion which begins with the vehement declaration that Israel clearly must respond to the acts of militants. The result will be that the only allowable criticism of Israel will be to censure them for not making their attacks on the besieged overpopulated Gaza strip a bit less massacre-ish.
In summary, the most powerful Western leaders have shown that they will attack the Palestinians at every turn, even at the height of their suffering. The only thing that holds them back is the weight of public opinion, and the ICC will give them opportunities to shift sympathies away from Palestinians and to further obscure the basic rights and wrongs of the issue. The way Obama used and shamelessly twisted the issue of rocket fire illustrates the problem.
But what else could be learnt from the issue of Gazan militants firing what, by all accounts, were very basic rockets? What if I were to return to the bank robbery analogy? Gazan rocket fire is equivalent here to throwing paperweights in the direction of armed robber from behind a desk when children might be hurt. The robbers have already killed and can be expected to kill again. A moral or legal justification that this is a reasonable act of self-defence would require that the risk to innocents is outweighed, in the judgement of those throwing the paperweights, by the potential prevention of violence by the robbers.
One might argue that throwing paperweights in morally unacceptable because the throwers have no substantive grounds for believing that they will disable or deter the attacks but might just as easily aggravate them and increase their violence. That is a very nice argument against acts of violence that can hurt innocents, and it happens to be how I feel about rocket fire from Gaza. But no one, including the “end of impunity” bureautwats, can justify contemplating the morality and legality of the paperweight throwers until they have judged and punished the robbers for their crimes, which include murder.
Once again we are confronted with the fact that by isolating alleged war crimes from their context, ICC proceeding could promote injustice, enable crimes and embed impunity. We should ask, what sort of mad world is it when we judge the victim of an attack on the legality of their acts of self-defence, but we don’t judge the attacker? Gazans are imprisoned by two US client states, the number one and number two recipients of US military aid. Their lives are not as desperate as those of Warsaw Ghetto inmates, but the sickening comparison is impossible to avoid. If we interfere in any way with their ability to defend themselves, even with acts that would otherwise be criminal, we risk becoming the moral equivalents of those who deported Jewish refugees to Axis controlled Europe and near-certain death. An entrapped people are attacked by a superior power with weapons that kill, maim, traumatise, brutalise and immiserate. When we prevent defensive acts on the basis that they are prohibited in IHL, if we do not know for certain that our interference does not interfere with their ability to defend themselves then we risk becoming a party to acts of aggression. That is another reason that the idea, from the Nürnberg Tribunal, of making the aggressor culpable for the criminal acts of the collective victim actually makes sense in the overall scheme of things.
The Privilege of Power
Judging war crimes only by their conduct without the jus ad bellum context provides an obvious advantage to the aggressor. Usually the aggressor is the more powerful belligerent and they are more likely to retain the initiative, control the tempo of the conflict and be able to conduct operations away from their own territory, people and assets. The aggressor has all of the advantages and, all things being equal, for equivalent war aims they have a much greater ability to achieve their desires whilst constraining personnel within the letter of the law. In practice aggressors may commit many war crimes, but I am trying to point out that this is despite a real situational advantage. They commit prolific war crimes only because their war aims are more extreme and are often inherently brutal, criminal and genocidal.
But the ICC may choose to ignore war crimes altogether and yet still acts as a weapon against the people of Palestine. As we have seen when acting as a neocolonial tool against African countries like Kenya, the ICC has preferred charges of crimes against humanity. This too creates an inherent bias in favour of the powerful over the weak. The ICC is tasked with only taking on cases where the state in question is “unable or unwilling” to prosecute.
For those willing but “unable” to prosecute their own genocidaires, war criminals, or criminals against humanity, there is a mechanism called “self-referral”. Anyone who has studied the history of international relations would predict that no state ever would actually say that they have a criminal suspect who they would like to prosecute for crimes committed in their country but are so pathetic and useless we can’t actually hold our own trial and theye need better richer whiter people to do the job for them. Yet these “self-referrals” do occur. David Hoile explains the phenomenon thus:
“The myth of African self-referrals is just that. It is public knowledge that the ICC Prosecutor Luis Ocampo made the governments of Uganda and DR Congo an offer they could not refuse: refer your countries to the ICC and we will only investigate your rebels; refuse and we will indict you as well.”
If you are a strong enough country you can defy the ICC, but if you are an enemy of the West, that very defiance is a weapon to be used against you. But a strong state that is allied to the West like Israel? Quite aside from the fact that Israel has not only refused to ratify the Rome Statute but, like the US, has also repudiated the initial signing of the treaty. More than that, however, the US State Department is quite satisfied when Israel investigates its own alleged war crimes and apparently that is more important to global officialdom than either public opinion or mere facts.
For example, after Operation Cast Lead Israel convicted two low-ranking soldiers of using a child as a human shield. They received suspended sentences of three months. This should have provoked screams of outrage that this stage-managed ersatz justice was far worse that doing nothing. Instead, the media printed the “reasoned” and respectable criticisms of people like Sarit Michaeli of B’Tselem: “Although individual soldiers do bear responsibility if they have violated rules, this has to be accompanied by systematic examination of issues of policy – such as what constitutes a legitimate target, open fire regulations, types of weapons used and the targeting of public buildings. The main issues of concern that we have raised have not been dealt with.” In other words, forget slavering passionately about evil “war criminals” (as we do about African suspects) these soldiers have quite correctly been disciplined for having “violated rules”, but we should also tweak Israeli policy somewhat. An incoherent scream of rage is actually a more coherent response than that.
To criticise the manner in which Israel judges its own actions normalises the idea that Israel should be left to police its own war crimes. People also seem to accept the idea that it is right for the US and the UK to choose who, if anyone, will be held accountable even when the crimes are committed in other countries. These countries then use the selective prosecutions of low-ranking personnel to create a false image of lawfulness.
Worse still, Israel has used the fact that it went through a judicial sham and conducted some supposed investigations to further criticise Hamas because they haven’t conducted their own prosecutions. This is another two-step inversion of reality. First, you get people to accept the idea that there is some moral equivalence in the illicit acts of aggressor and resistance forces – twisting the first 90º – then you get them to accept that your abysmally deficient scapegoating of junior personnel is some sort of robust corrective. After these two simple steps you hand rotated into Oppositeland and you may now safely blame and demonise the victim of your mass murder.
And when we envision the future impact of the ICC regime on Palestine we must not, under any circumstance, fail to take into account the power of the political discourse which seeks to make enemy states into appendages of a near omnipotent villainous leader. Every crime committed by personnel from a state deemed inimical to the West is blamed directly on the leader of that country. Bashar al-Assad drops barrel bombs on civilians; Omar Bashir commits genocide; Muammer Ghadaffi even committed the massacre of political prisoners in one of his prisons. Theirs are the fingers on the triggers.
Ordinary people may likewise think that Donald Rumsfeld should been tried for torture, or Tony Blair for crimes against peace, or Ariel Sharon for mass murder, or Henry Kissinger for genocide. People in officialdom, however, claim to have a superior understanding of politics and power and are ever willing to concede limits to justice where powerful Westerners are concerned.
Convicting a couple of rather amateur torturers from Abu Ghraib and a few Blackwater murderers makes the US feel like it is superior, lawful, legitimate and civilised. US political and military leaders go free and the bureaupratts, security geeks and self-described “wonks” sneer at the inferiority of those who don’t accept a priori that Western leaders are untouchable. With regard to Third World enemy states it is the exact opposite. These same “wonks” now salivate with strident bloodlust. Justice is now an absolute and they can never compromise. The snide bespectacled weeds are now transformed into blood-drenched muscular Conan-esque warriors meting out righteous violence. They cheered when Osama bin Laden was supposedly killed: “We’re number One!” They howled in triumph when Ghaddafi died in the most grotesquely cruel manner and Clinton crowed: “We came. We Saw. He died.”
On Genocide 