This is an unscripted commentary about the abysmal and cowardly draft resolution circulated by Aotearoa/New Zealand at the UNSC. The resolution purports to encourage and to bring closer a “two-state solution” to the occupation of Palestine.
This resolution is founded on delusions and lies that can no longer be excused.
Apologies for the uneven audio quality in the first 10 minutes
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 Žižek describes 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.
The ICC is nothing but bad news for Palestinians.
“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.”
After 10 years as a business reporter, Anthony Reuben is now the BBC News inaugural “Head of Statistics”. True to the spirit of 1984 he seems to take his role as being to remind people of such numerical truths as “2 + 2 = 5 fanatical Islamist terrorist Hamas militants”. In a report on what the statistics tell us about the recent fatalities in Gaza, he highlights the fact that a disproportionate number of young men are being killed. Another BBC report on Gaza casualties is quite shocking, but its impact is diminished by a link to Reuben’s article with the words “If the Israeli attacks have been ‘indiscriminate’, as the UN Human Rights Council says, it is hard to work out why they have killed so many more civilian men than women”
Someone else has already written an email to Reuben which is posted at the Media Lens message board. It covers some of the territory that I have, but I felt that I needed to add a few things in a missive of my own. I got a little bit carried away, but the result is heartfelt…
To Anthony Reuben,
I have to ask, just what sort of statistician are you? Surely one of the fundamental tenets in statistical thought is that correlation does not imply causation, yet without the implicit unsupported claim that a gender imbalance in fatalities indicates IDF discrimination, your article has no purpose.
When I write “no purpose” I really mean “no legitimate purpose”. It is a great propaganda point for Israel to use the deaths of “military aged males” to imply military legitimacy in their violence. Your work certainly goes a long way to helping the IDF promote its narrative. This means that you are helping them, and I hope you realise that you are therefore complicit in their actions.
Need I remind you that Srebrenica was primarily a massacre of “military-aged males” and that those who committed that genocidal act used the same excuse as the IDF? By itself that destroys the tacit premise of your article unless you also consider Srebrenica to be a legitimate military action. The fact is that it is normal that adult male civilians are targeted and murdered at far higher rates than women and children. There are a number of reasons why this is the case, including the psychology of those committing the murders. Military personnel find it easier to kill adult male civilians than others. Additionally, apologists such as yourself find it easier to muddy the waters over war crimes.
You breezily dismiss the issue of gender disparity in war casualties from other conflicts: “There has been some research suggesting that men in general are more likely to die in conflict than women, although no typical ratio is given.” With a flourish of misdirection, which seems to come naturally to the hack and the junk-merchant, you induce the reader to think that nothing of relevance is contained in the paper which you link to. You let people know that you have read it, but it really has nothing to illuminate the issue. However, the paper does establish that although there is a great deal of variation between conflicts, there is undeniable precedent for far greater numbers of male than female civilians being killed directly in conflicts. In other words, if you were half the statistician you claim, you would recognise that a disproportionate death rate amongst Gazan men is no evidence that more armed militants have been killed than Hamas claims, is not evidence that the IDF is practicing discrimination, and is not evidence that the IDF does not target civilians.
Moreover, the paper you cite is in itself too narrow in scope for the purposes of your article. There is relevant historical evidence which is denied by no one. Not one person who knows anything about the subject denies that there is a long standing practice of killing adult male civilians. It seems to be as old as human mass violence, and it is certainly as old as the phenomena we understand as war and genocide. It is a practice which falls under the category now given as “gendercide”. Like mass rape, the tactic of the mass killing of men is not merely aimed at the immediate victims, but is a genocidal tactic aimed at social cohesion. In a patriarchal society and/or one with high numbers of dependent children, the impact of killing a “military age male” – which is to say a “working age male” – is multiplied.
But perhaps the most important propaganda role you are playing is to access that moral and emotional numbness with which we have all been induced to view violence against young men. I have read many accounts of violence, and I will admit that the images that haunt me are those of violence against children. Yet I can also say that those who are close to the violent deaths of men do not view it with the equanimity that our public discourse accords the subject. These are human beings who love and are loved. They feel as much fear, pain, grief and guilt as anyone other human being in their last moments, whether they carry a gun or not. We project on to these dying men a sense that they are agents in their own deaths, as if war were some sort of shoot-out at high noon where every male carries a sixgun. The emphasis on “women and children” is an impulse of armchair humanitarianism by the insipid and the self-righteous.
Perhaps, to understand my point, you could watch and rewatch the video posted here of a young man being murdered by an Israeli sniper. Watch it and ask yourself, “what does my article say about this man’s death”? This is the death of a 20-29 year-old male, so if your article isn’t about this, then what on Earth is it about? I mean that seriously. Your holier-than-thou detached statistical conceits actually say nothing at all about the horrible death of this man except to suggest that somehow it doesn’t really count.
You are also making a big straw man out of the UN accusation of indiscriminate and disproportionate use of force. The real question is the systematic targeting of non-combatants. To date, Israel has targeted 7 UN schools being used as shelters. Fleeing civilians have also been targeted, as have rescue workers and UN personnel. This is based on 3rd party evidence and, quite frankly, only an idiot would give any credence to the IDF’s response to these accusations unless they were subject to cross-examination or were able to provide substantive evidence to back their claims.
But not only do you give unwarranted credence to IDF distortions, you are too lazy, stupid or evil to even check on the veracity of blatant lies. You quote an IDF spokesperson on the subject of Operation Cast Lead: “Hamas and Gaza-based organisations claimed that only 50 combatants were killed, admitting years later the number was between 600-700, a figure nearly identical to the figure claimed by the IDF.” This is a double lie. Firstly, I wouldn’t think it would be too much to expect a BBC reporter to look up what the BBC itself reported about claimed casualties after OCL: “Hamas has said 48 of its fighters were killed. The Popular Resistance Committee says 34 died and Islamic Jihad said it lost 38 men.” Hamas not claiming only 50 combatants killed, it is claiming that only 50 of its combatants were killed. Lie number two, just as easy to sort out by an internet search, is that Hamas or “Gaza-based organisations” have “admitted” to a figure of 600-700. No they haven’t. You are either wilfully being played for a fool, or you are deliberately deceiving your readers.
You also repeat that Israeli claim given exposure by your colleague back in 2009 – that “when militants are brought to hospitals, they are brought in civilian clothing, obscuring terrorist affiliations”. I love this one because you have to be a moron to believe it, but also at least a bit of a racist. There are really two options here, one is that when combat breaks out Gazan militants change into civvies on the rather Pythonesque logic that they will make the evil Zionists pay by seeking matyrdom in mufti [sic]. The other possibility is that these hate-filled fanatic terrorists are so rabid, so irrationally rational, so innately cunning and conniving, that when their comrades are wounded or killed their first response is to give them a change of clothing – presumably remembering to tear, incise and or burn the clothing so that it matches the flesh beneath. Hamas probably has special units of crack combat-tailors giving makeovers to the dead and dying. While they are working I imagine that the legions of Pallywood specialists are digitally altering stock footage and stills so that every rabid mass-murdering terrorist arrives at the morgue with pictures and video of their tender family life of caring for young children and sickly elders.
Your fatuous hypothesis is that the disproportionate fatalities of young males suggests that Israel is only accidentally killing civilians in the legitimate pursuit of “terrorists”, and that the IDF, in fact, is practicing discrimination. This is based on four things – ignorance, stupidity, self-satisfied arrogance and the blatant lies of an IDF spokesperson. By privileging statistical evidence as being of a higher order than mere anecdote you manage to suggest that the evidence of our eyes themselves is somehow suspect. This is vulgar scientism. The fact is that a single anecdote can sometimes destroy a statistical hypothesis. The different sorts of evidence provide different sorts of information, one is not inherently better at revealing an objective truth. Statistical methods are frequently abused to create distorted pictures. Statistics provided by belligerents about their own actions are more or less worthless anyway, but sometimes it is perfectly valid to dismiss a statistical account on the basis that it diverges far too much from the collected reliable anecdotes. For example, US figures on civilian deaths in the second assault on Fallujah are risible. Anyone who actually followed the eyewitness accounts of what was occurring at the time knows that these “statistics” are worthless. We know from accounts of US personnel that dead civilians were simply labelled “insurgents”. It is an old practice, perhaps best known from Indochina where it was referred to as the “mere gook rule”.
The “mere gook rule” was elucidated as being “if it’s Vietnamese and dead, then its VC”. The reasons for this were many and varied. People often cleave to the cliché vision of ambitious officers trying to outdo each other by claiming everything conceivable as a kill. Behind that, however, were far more important systemic causes. We do not talk about such things in polite society, but the fact is that the US war machine systematically targeted civilians on the basis that being in a certain location made you a legitimate target deserving of death. They overtly wanted to attack the civilian population in NLF controlled areas on the basis that they were VC “infrastructure”. But to do so they actually redefined them as being combatants. Hence William Westmoreland, that charming man, was able to confidently proclaim that no civilian had ever been killed in a free-fire zone, because he had defined free-fire zones as places where no people were civilians. So when William Calley described his reason for killing women as being because they had “about a thousand little VC” in them, he was actually just expressing official US doctrine.
I feel that I must point out here, in case there is any confusion, that contrary to what seems to be broadly taken as true at the BBC, powerful officials do not actually define reality. I know that this is hard for you to understand, but just because a US General says that the victims of bombing and shelling were all combatants, including the children, it does not make it true. There is a legal definition of “combatant” and international humanitarian law doesn’t actually rely on an honour system where the perpetrator owns up for any acts of naughtiness (and that includes Israel’s activities in Gaza). The Nuremburg Trials, for example, did not consist of a series of cleverly posed questions designed to trap German leaders into admitting that they had started a war and killed civilians. But while we are on that subject, it is always important to remember that every act of mass violence by the Germans was defined by them as an act of war against the “enemy” who were sometimes defined as being a “terrorist population”.
If a normal conscientious human being wrote an article about the gender and age characteristics of fatalities in Gaza, they might at least mention the very prominent fact that the US is now applying a gender and age specific version of the “mere gook rule”. Perhaps you have been sequestered under a rock for the last few years, but there has been significant mention in the news that the US automatically defines anyone killed in their targeted killings who is a military age male as being a “militant” until proven otherwise. “Militant” is such a great word as well because it gives people the impression of legitimacy, but it does not actually specify that the targets were combatants. A study of Israeli targeted killings some years ago found not only that they killed four times as many bystanders as targets, but also that 50% of the “militants” they targeted weren’t actually part of any armed activities. These militants were community organisers, political organisers and union organisers – you know, “infrastructure”.
To recap, then: a military aged male is not necessarily a combatant, but they are frequently targeted as such. This is known as gendercide. Targeting civilians in this way is often accompanied with official semantic approaches which seek to legitimate the targeting of civilians, but by nature any repudiation of legal definitions is in itself a war crime constituted necessarily of the systematic targeting of civilians.
Given everything we see of IDF personnel murdering helpless civilians, what seem to be targeted attacks on medical and aid workers – including UN personnel – and what seem to be deliberate attacks on UN facilities being used as shelters by displaced people, only an Orwellian freak could possibly go along with the idea that the UNHRC’s accusation of indiscriminate use of force is the real issue. Nor is the systematic targeting of civilians even the worst crime on evidence here. Israel is quite blatantly committing genocide as it is defined in law in the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (UNCG), and under the UN Charter it is guilty of criminal aggression. Genocide is considered an “aggravated crime against humanity” which parties to the UNCG are obliged to act to end, whilst aggression was defined at Nuremburg as the “supreme crime”.
I bet you think you know what the word “genocide” means. I bet that deep down in your guts you know that it was never meant to describe the way Israel treats Palestinians. You probably can’t exactly say what genocide means, but you understand its essence and you know that it is offensive and obscene to cheapen the memory of the dead by debasing the coinage with such politicised accusations. Save your indignant spluttering. The legal definition of genocide is quite clear and taking actions aimed at destroying “in whole or in part” the Palestinian people is genocide by definition. The expectation that genocide should always be manifested as a discreet orgy of violence is a vulgar misapprehension. Genocide is frequently a long process of sporadic, chronic violence in the midst of ongoing persecution. In fact, the slow nature of the Israeli genocide is what makes it so much less ambiguous or uncertain than most other genocides. The rhetoric, the strategic imperatives, the tactic, the doctrines and the policies in this case all align to make this an open-and-shut case with none of the usual difficult issues of intentionality. The Kuala Lumpur War Crimes Tribunal not only found Israel guilty of the crime of genocide, but also found several named living Israeli officials guilty of genocide.
I know what you are thinking – you are thinking that the KLWCT is “political” and is motivated by “politics”. Let’s deconstruct that, shall we? In your twisted little world there is nothing “political” about the ICC which is an official body that just happens to spend almost all of its time prosecuting sub-Saharan African leaders who have angered the the US. Are these the worst war criminals in the world? No. Are they the worst war criminals in sub-Saharan Africa? No, not that either, certainly not on the basis of the numbers of victims killed. Apart from one token M-23 guy thrown to the dogs for the sake of appearances, the real crime of these people was that of defying Washington. The ICC, however, is “official”. In your grubby little corner of Oceania this means that it is not “political”. In the same idiom the US is an “honest broker” and John Kerry is a “credible authority”. In the real world, however, despite the involvement of Malaysian political figures, the KLWCT is constituted of independent scholarly and legal experts whose collective interest in the matter of Palestine is purely that of human beings who seek an end to injustice and suffering.
(Have you ever wondered about that? The way in which the pompous organs of the media reverse reality to say that the people who don’t have a vested interest are the suspect “political” voices, but the people who have immense power and money riding on the outcomes of events are considered at least respectable if not authoritative?)
The law may not be perfect, but often the fact that it is a codified standard which can be applied equally to each party is highly illuminating. Admittedly, by the time it reaches a court, international law is generally a selective disproportionate application of what amounts to victor’s justice. But we can independently examine issues in a legal light to get a good view of ethical dimensions of a situation. The question is this, in this instance who is the aggressor and who has the right of self-defence?
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.
I know that it is heretical to even think such thoughts, but what if we spent as much time talking about Palestinian rights to self-defence as we do about the non-existent Israeli right to self-defence? When you actually apply international law, Palestinians have every right to use the arms that are available to them in resistance. They are the ones subject to occupation. Israel and its allies have used the statelessness of Palestinians to obfuscate their right to self-defence, but in law you cannot deny rights to individuals on the basis of statelessness which means that they have “the inherent right of individual or collective self-defence” until such time as the UNSC restores peace.
That brings me to something that I find almost as upsetting as seeing the bodies of children killed by “the most moral army in the world”. Those who take up arms against Israel are not legally or morally deserving of death. Most of them will have lost loved ones to Israeli violence. Every one of them suffers under the illegal oppression of the occupation. Deciding to fight back with arms is not some irrational fanatical decision. Yet in our media these men are treated as violent irrational ciphers in a way which both draws on and perpetuates a racist conception of Arab men. Nobody ever puts a human face on these fighters. They are tarred with the brush of Islamism, with its heavy freight of misogynistic savagery, but many of them aren’t even Islamists and those that are have not committed the sort of atrocities which Westerners claim come naturally to Islamists. We should at least remember who is and who isn’t killing babies here – that is not too much to ask is it? It is the IDF who are committing atrocities, and those who take up arms against them have the legal right to do so. They also have the right to life. They don’t enjoy dying, as the British used to claim about Arab tribesmen. They don’t eagerly seek martyrdom. Like isn’t “cheap” to them, as Westmoreland said of “Asiatics”. Those tropes are the worst kind of vicious racism. These fighters are human beings, and their deaths are legally and morally acts of murder.
Surely this doesn’t mean that Hamas can just fire thousands of rockets into Israel killing civilians, does it? Well, actually it does. Killing civilians is illegal, but the responsibility and culpability belongs with Israel’s leadership under the current circumstances. At Nuremburg it was adjudicated that Russian partisans could not be criminally responsible for atrocities carried out because they were in turn responding to the war crimes of the aggressor. Some argue that this Nuremburg precedent seems to give carte blanche to members of any attacked group. Perhaps jus in bello law must be equally applied to all parties no matter what, as a principle of equality under the law. But even if you take that position, was Kenneth Roth of HRW right to assiduously condemn Hamas’s indiscriminate rocket fire when he recently discussed war crimes in Gaza? No. Roth is just being a scumbag. He is either acting as a propaganda agent to deliberately build a false equivalence, or he cares more about pandering and sounding “credible” than he cares for truth and justice.
Let me put this into some sort of perspective. It is, quite frankly ridiculous and wildly disproportionate to even suggest that we need to take steps over the supposed illegality of using insufficiently discriminating arms by factions in a besieged population when the harm to civilians is so much less that that caused to the civilians of the besieged population. Gaza’s rockets and mortars have killed 28 civilians in the last 13 years. [And don’t give me any crap about the wondrous “Iron Dome” – it didn’t even exist for most of that time and Theodor Postol has calculated that it does not work. It is a horrendously expensive PR ploy to maintain the deception that there is some sort of parity between Israeli and Palestinian violence.] Not only would it be a de facto abrogation of the Palestinian right to self-defence to restrict the weapons allowed to those that can only reach the enemy when the enemy chooses to come within range. Moreover, it is another point of law that you cannot accuse someone of a crime when you are also guilty of that crime. If Palestinian rockets and mortars are illegal then so are Israeli rockets and mortars – which kill more people. They share exactly the same properties of being inherently indiscriminate, as do air and ground artillery munitions. There is no qualitative difference between these inaccurate primitive rockets and any other explosives used around civilian populations except that they are a lot less deadly than most. This twisted and sick idea shared between Israel an the US that they can effectively exculpate themselves by saying – “yes, we kill more civilians, but we do it more accurately” is appalling.
The point is, though, not to say that Israel can’t accuse militants in Gaza of war crimes, but to say that none of us can. How can we, in countries that have shelled and bombed and killed so many, accuse Palestinian militants of anything? How could anyone from the US claim that Palestinian munitions are insufficiently precise and discriminating when their own government uses depleted uranium, cluster munitions, napalm, fuel-air bombs, white phosphorous, etc., etc., etc., ad nauseam. The very idea that any Westerner can level war crimes accusations at an desperately poor and ill-armed besieged people for using the only primitive weapons with which they can reach their attacker is sickening and obscene.
I don’t like the rocket attacks. I don’t think Israeli civilians deserve death. But as Osama Hamdan pointed out, when they stop firing rockets, it doesn’t stop Israel from killing and blockading their people. How long do you sit doing nothing while people are killed and while the land, the little strip of a prison, gets ever closer to becoming irreversibly uninhabitable. (There is the Zionist genocidal intent – a realist’s Eretz Israel with a non-citizen Palestinian helots living in controlled West Bank enclaves, while Gaza is a post-apocalyptic pile of polluted rubble.)
If you have actually read this far, you might be marshalling answers with your little weasel brain. Please don’t bother. To put it politely, this letter is in the spirit of a condemnatory open letter. To put it more honestly, I don’t care what a toxic freak like you has to say in his defence. For forty years the dissident voices of our society have taken on this crippling notion that we should “engage” people in “dialogue”, as if our goal is to show people like you the error of your ways. But even engaging someone like you is to give validity to your insane world-view. What sort of callous freak actually goes out of their way to throw condemnations of IDF actions in Gaza into question? Do you wake up in the morning and think, “I know what the world needs, it needs more geeky smug reasons for not having to feel compassion and the desire to end suffering”?
So, frankly, I don’t care what you have to say for yourself. I just want you to know that you are hated. A person half a world away, who is very well educated about the issues involved, hates you for the simple reason that you are the enemy of humanity and your work promotes the suffering of innocents.
All the best for you and your hack friends in your future self-congratulatory endeavours,
Kieran Kelly
Putting the US on trial for genocide against the peoples of Korea, Laos, Viet Nam, Cambodia, Iraq and elsewhere.
The United States of America was built on a foundation of genocide against the indigenous peoples of North America. In fact, all successful settler colonial societies are founded in genocide. The process is one of dispossession – the erasure of one group identity and the imposition of another on the people and/or on the land. But genocide is not merely the foundation of the US nation state, it is also the foundation of the US empire. The US habit of genocide has not died, but has transformed. The US has become a serial perpetrator of genocide with the blood of many millions of innocents spilled in pursuit of imperial hegemony.
There is a fight going on for the very meaning of the term “genocide”. Western powers assert their right to accuse enemies of committing genocide using the broadest possible definitions whilst also touting a twisted undefined sense of “genocide” which can never, ever be applied to their own actions. New Zealand Prime Minister John Key, apparently taking his cue from the US, is currently pushing for reform of the UN Security Council such that the veto power would be unavailable in cases of “genocide”. The UNSC is a political body and “genocide” will simply become a political term cited by powerful states to rationalise aggression against the weak.
Key notoriously said that his country was “missing in action” because it did not invade Iraq in 2003, reminding Kiwis that “blood is thicker than water”. If his desired reforms existed now, the US would probably have a UN Security Council resolution authorising the use of force against Syria on the grounds of “genocide”.
John Key – Prime Minister of Aotearoa (NZ); former Merill-Lynch Currency Trader
All of those who oppose Western aggression justified as humanitarian intervention under the “responsibility to protect” must stop burying their heads in the sand over this matter. This is a very real fight for the future of humanity. We can either learn and propagate the understanding that US imperial interventions are, by nature, genocidal. Or we can just pretend the word has no meaning; indulge our childish moral impulses and the lazy fatuousness of our scholars and pundits; and let Western mass-murderers use this Orwellian buzzword (for that is what “genocide” currently is) to commit heinous acts of horrific violence which ensure the continued domination of the world’s masses by a tiny imperial elite.
(An aside: apparently people like a pragmatic focus to accompany a call to action. So, am I making the most obvious appeal – that US officials be tried for committing genocide? No I am not. They can be tried for war crimes if people really think that “holding people accountable” is more important than preventing suffering and protecting the vulnerable. But it has been a terrible mistake to construct genocide as being an aggravated crime against humanity committed by individuals, as if it were simply a vicious felony writ large. This has played completely into the hands of those propagandists for whom every new enemy of the West is the new Hitler. The means by which genocides are perpetrated are the crimes of individuals – war crimes, for example – but genocide itself is the crime of a state or para-state regime. That is the proper target of inquisition and censure. Though the attempt was tragically abortive, the Kuala Lumpur War Crimes Tribunal recently began hearing charges of genocide against Israel. We need this sort of process to hear charges of genocide against the US. I fully support such efforts, but my real call to action is a call for thought, for clarity and for self-discipline. People are drawn to using woolly thinking over genocide, wishing to use it as the ultimate condemnation of mass violence without reference to any actual meaning of the term. We must not tolerate it in ourselves or others. We are a hair’s breadth away from the point where “genocide prevention” will be used by major Western powers to justify genocidal mass violence)
US “Wars” are Actually Genocides
Every major military action by the US since World War II has first and foremost been an act of genocide. I do not state this as a moral condemnation. If I were seeking to condemn I would try to convey the enormous scale of suffering, death, loss and misery caused by US mass violence. My purpose instead is to correct a terrible misconception of US actions – their nature, their meaning and their strategic utility. This understanding which I am trying to convey is a very dangerous notion with an inescapable moral dimension because the US has always maintained that the suffering, death and destruction it causes are incidental to military purposes – they are instances of “collateral damage”. But, with all due respect to the fact that US personnel may face real dangers, these are not real wars. These are genocides and it is the military aspect that is incidental. In fact, it is straining credulity to continue believing in a string of military defeats being sustained by the most powerful military in the history of the world at the hands of impoverished 3rd World combatants. The US hasn’t really been defeated in any real sense. They committed genocide in Indochina, increasing the level of killing as much as possible right through to the clearly foreseen inevitable conclusion which was a cessation of direct mass violence, not a defeat. The US signed a peace agreement which they completely ignored. The Vietnamese did not occupy US territory and force the US to disarm and pay crippling reparations.
There is no question that the US has committed actions which fit the description of genocide. Genocide does not mean the successful extermination of a defined group (there is no such thing as “attempted genocide”). It was never conceived that way, but rather as any systematic attack on “a national, ethnical, racial or religious group, as such.” Those who deny US genocides usually only deny that there is any intent to commit genocide. The UN definition of genocide (recognised by 142 states) is:
“…any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.”
The US has committed these acts many times over and in many different countries. Some people object that this is some watered down version of genocide that risks diluting the significance of this “ultimate crime”. However, bear in mind that the victims of US armed violence are not usually combatants and even if they are they are not engaged in some sort of contested combat that gives them some ability to defend themselves or to kill or be killed. They are helpless as they die of incineration, asphyxiation, dismemberment, cancer, starvation, disease. People of all ages die in terror unable to protect themselves from the machinery of death. Make no mistake, that is what it is: a large complex co-ordinated machinery of mass killing. There is nothing watered down about the horrors of the genocides committed by the US, and their victims number many millions. The violence is mostly impersonal, implacable, arbitrary and industrial.
There are at least three specific times at which US mass violence has taken lives in the millions through direct killing: the Korean War, the Vietnam War, and the wars and sanctions against Iraq in combination with the occupation of Iraq. I refer to them as the Korea Genocide (which was against both South and North Koreans), the Indochina Genocide (against Laotians, Cambodians, and Vietnamese), and the Iraq Genocide (which took place over at least a 20 year period).
There are many ways to show that the US committed genocides in these cases. On one level the case is straightforward. For example, if the US commits acts of “strategic bombing” which systematically kill civilians by the hundreds of thousands, and it turns out that not only is there no rational proportionate military reason, but that US military and intelligence analysis is clear that these are in fact militarily counter-productive acts of gratuitous mass-murder, then by any reasonable definition these must be acts of genocide. The logic is simple and inescapable. I have written lengthy pieces showing in detail that these were large scale systematic and intentional genocides which you can read here, and here, and here, and here, and here, and here, and here.
For a long time I have tried to think of ways in which I condense this in a readable form. The problem in many respects lies with the necessity of overcoming misapprehensions. Genocide is an emotive topic, whilst people are very reluctant to read that those who rule in their name (with whom they sometimes actively identify) are in the moral vicinity of the Nazi leaders of Germany. Permeating every level of the discourse is the constant position (whether as the unspoken assumption or as the active assertion) that the US has never acted with genocidal intent. Intentionality is a topic in its own right, but to be brief I will point out that intent does not require that “genocide” be its own motive. If I kill someone because I want their watch, I can’t turn around and say it isn’t murder because I didn’t intend to kill them because I was really just intending to take their watch. It may seem a ridiculous example, but the discourse of genocide is so twisted that it is the norm even amongst genocide scholars. We keep looking for the people, the bloodthirsty psychopathic monsters, who kill people just for the fun of it and grab their watch afterwards as an afterthought. Unsurprisingly, we find those people among the leaders of those countries who oppose Western political power. Now that includes Syria’s Bashar al-Assad.
The best way of demonstrating US intentionality is to demonstrate the consistency of their approach in different times and places. However, this is a necessarily exhaustive approach, so I have decided to take a different tack here. I wish to sketch a fragment of autobiography here – an outline of the process by which I came to my current understanding of the topic. I want readers to understand that I didn’t seek these conclusions out. I have had it made clear to me, by rather comfortably embedded scholars, that they think that I am being provocative out of ambition. It is a testament to the self-satisfaction of such people that they somehow think that being provocative is some advantage. Academia thrives on the journal-filling peer-reviewed “controversies” of rival schools and scholars, but they aren’t really keen on anything that might actually be of any interest to anyone else. The fact is that I didn’t seek this out and it certainly has not endeared me to anyone that I can think of. On the other, hand I have had people act as if I had smeared my own faeces all over myself for using the g-word with respect to Iraq, and I have had many metaphorical doors slammed in my face. As I hope the following will indicate, at least partially, I cannot but characterise US genocides as such and I cannot but view the subject of absolute urgent fundamental importance.
Coming to Understand
The Vietnam War loomed large in my childhood. I was five when it ended. I watched the critical documentary series Vietnam: The 10,000 Day War when I was ten or eleven years old. During the 1980s Vietnam War movie craze I was sucked into that powerful quagmire of pathos and adrenaline – not to mention the evocative music. But even then, as a teen, I could not abide the apologism and the way in which American lives and American suffering were privileged. The US personnel were portrayed as the victims, even in films which showed US atrocities. I knew far too much about things such as the nature of the atrocities carried out by the Contras to find that sort of propaganda palatable. For one thing, I had read William Blum’s The CIA: A Forgotten History. This book (now titled Killing Hope and still available) doesn’t leave the reader much room for illusions about the US role in international politics. Perhaps if I had been a little older I might have been “educated” enough to be blind to the obvious, but I wasn’t. While most people managed to avoid facing the facts, I knew from this book and others like it that although the atrocities of the Soviet Bloc were substantial, they were dwarfed by those of the US and its closest clients. If Cuba, for example, has been repressive, then what words remain to describe the US installed regimes in the Dominican Republic, Haiti, El Salvador, or Chile?
How could one characterise a state that backed and created death squad regimes that massacred entire villages, that tortured children to death in front of parents? How does one describe a militarised country whose meticulously planned and executed bombing raids systematically visited untold death and suffering on innocents as an intended purpose. Any informed person who had an objective proportionate viewpoint could only conclude, as Martin Luther King Jr. had already concluded, that the US government and the wider US corporate state were “the greatest purveyor of violence in the world today.” Fred Branfman, who saw the results of US bombing first-hand in Laos, has more recently concluded that the executive branch of the US government is “the world’s most evil and lawless institution”.
So that is where I was coming from. On moral terms I could not have been more condemnatory of the US government. I considered the US government and military-corporate-intelligence complex to be the worst thing in the world since the demise of the Third Reich. I believed this on the basis that they had demonstrably brought about more suffering, death and destruction than anyone else. If someone had tried to claim that it was for “freedom” I would have laughed bitterly, thinking of the brutally crushed democracies and popular movements that were victims of the US. But if someone had said to me that the US had committed genocide in Korea and Indochina I would have most likely dismissed the claim as emotive overstatement. I didn’t actually know what the word genocide meant precisely, but I would still have seen its use as being a form of exaggeration. Implicitly that means that I took the word “genocide” to be a form of subjective moral condemnation as if it were an inchoate scream rather than a word that might have a consistent meaning. (You can’t exaggerate by calling something “arson”, for example. It is either a lie or it is the truth. Genocide is the same). However, “genocide”, as a word, has been subjected to the ideological processes (described so well by Orwell in Nineteen Eighty-Four) which destroy the meaning of words. Here is how I put it in an academic piece:
Certain words are so highly politicised in their usage that, in Orwellian fashion, they are stripped of all meaning and become merely signals designed to provoke in impassioned unreasoning involuntary response. In this fashion ‘democracy’ means ‘double-plus good’ and the Party members1 respond with cheers and tears of joy. Equally, ‘terrorism’ means ‘double-plus bad’ provoking among Party members, ‘[a] hideous ecstasy of fear and vindictiveness, a desire to kill, to torture, to smash faces in with a sledge-hammer….’2 Genocide plays a starring role in an entire discourse shaped in such a way as to not only excuse but to facilitate the perpetration of war crimes and crimes against humanity. Stripped of any actual meaning but given the significance of being the ‘ultimate crime’ it becomes a tool by which powerful Western states are able to threaten or carry out attacks against weaker states – attacks which are in themselves criminal and which in some instances are actually genocidal. The emotive misuse of the term genocide has become a powerful political tool. As Jeremy Scahill reveals after accusations of genocide by Arabs against black Africans, “even at antiwar rallies, scores of protesters held signs reading, ‘Out of Iraq, into Darfur.’” Scahill adds that, ‘[a] quick survey of Sudan’s vast natural resources dispels any notion that U.S./corporate desires to move into Sudan derive from purely humanitarian motives.’3
What brought me around to using the term genocide was realising that there was no other word to describe what the US did in South Viet Nam. I had been aware that the vast majority of victims of the US military were civilians. It was commonplace to say that 90% of casualties were civilian. (Tellingly Western commentators, including those in the peace movement, would vouch that the figure of 90% civilian casualties was proof of how cruel and deadly “modern war” had become – as if US practices were some sort of universal standard and as if the fact that other belligerents did not produce such high rates of civilian death was not of any interest whatsoever.)
So, US violence mostly caused civilian deaths and the vast majority of those civilians were, in fact, subjects of the US installed puppet [sic] regime in Saigon. They were killing their own supposed allies. I have read all of the rationalisations for why the US thought it was a good idea to kill the civilians of their own client state, and they are all completely insane. I don’t even believe that killing the civilian populations of enemy countries is militarily effective and in that belief I am supported by the strategic analyses of the US itself going back to 1944. Killing the civilian population of an allied state makes no military sense whatsoever. Often killing civilians was rationalised in terms of counterinsurgency (usually crudely reversing Maoist doctrine about the relationship between the guerrilla and the rural population) despite the fact that it was recognised from very early on that the civilian deaths were recruiting and strengthening the enemy.
That was the other striking thing about US activities in Indochina – they were systematically killing civilians without apparent purpose, but they were also undermining their own political and military efforts. This happened at all levels. As I was reading and coming to grips with this aspect of history, it seemed that exactly the same thing was playing out in Iraq. In 2003, as invasion loomed, I had initially expected that the US would conduct a fast vicious campaign particularly aimed at inflicting maximum damage to economic infrastructure. They would then leave, crowing about their surgical use of force and minuscule US fatalities. The US would continue to enhance the perceived legitimacy of its acts of aggression and would be able to use economic blackmail to exert neocolonial control. However, I was woefully naïve for believing that. In contrast, Paul Wolfowitz was absolutely clear on this point – you cannot use normal neocolonial power on Iraq: “…[W]e just had no choice in Iraq. The country swims on a sea of oil.” Instead, the US invaded, occupied and then acted repeatedly and systematically in ways which would very predictably cause armed resistance, just as they had in Indochina. But without that resistance they could not have justified a major military presence and the proconsular rule of the occupation imposed on Iraq.
In 2006 I was able to devote quite a lot of time to the subject of genocide in Indochina as it was the topic of my Honours research paper. My initial understanding of genocide was pretty thin and one-dimensional, but it was sound in the given context. The most important aspect for me was that genocide matched means with ends. War is always a matter of uncertain outcome. To wage war is to wager (the words are cognates). Indeed that is why we use such terms as “wage” and “adventure” for military action. If memory serves, Carl von Clausewitz himself even wrote that a belligerent will never be able to attain their intended war aims because the war they pursue will itself change matters and impose its own realities. In that sense war is a gamble which will always be lost. Genocide is not a gamble.
I saw genocide as being an attack on the peoples of Indochina which avoided the uncertainties of waging military war. The maximal aim of the genocide was the eventual neocolonial domination of Indochina. It worked. In Viet Nam the war and subsequent US economic sanctions were devastating. By 1990 the per capita GDP was only $114.4 Under doi moi liberalisation, Viet Nam has achieved much greater formal economic activity (GDP), but only by submitting to the “Washington Consensus”, which means no price supports for staples such as rice, which in turn means that the real income of the poorest urban dwellers has dropped 5 Former US military commander in Vietnam Gen. Westmoreland characterised doi moi as proof of US victory.6 The point is, though, that genocide doesn’t need an end goal such as such as submitting to neoliberal WTO regulations and IMF conditions. Chomsky called Vietnamese poverty “a vivid refutation of the claim that the US lost,”7 Similar stories could be related with regard to Laos and Cambodia. Whether these nation states are considered enemies or vanquished vassals or friends is of no relevance, the weakness of their populations is a gain in relative power for the US empire, and empires intrinsically function on relative gains.
This is what I wrote in 2006:
…[A]clever strategist, where possible, matches means and ends, thus making results more predictable. In a situation where there is a stated end and a given means are employed and continue to be employed despite continued demonstrable “failure” and are then employed elsewhere under the same rationale with the same results – in such a situation it is possibly worth considering that the “means” are themselves the end. In the case of the Second Indochina War, I will argue the means were widespread general destruction, employed on as many of the people and as much of the societal fabric or infrastructure as was physically and politically feasible. If those were the means, I will suggest, they were also the end. The results are predictable. The dead stay dead.
As I would later discover, when he first coined the word “genocide”, Raphaël Lemkin wrote that “genocide is a new technique of occupation aimed at winning the peace even though the war itself is lost.” He also wrote: “Genocide is the antithesis of the … doctrine [which] holds that war is directed against sovereigns and armies, not against subjects and civilians. In its modern application in civilized society, the doctrine means that war is conducted against states and armed forces and not against populations. … [T]he Germans prepared, waged, and continued a war not merely against states and their armies but against peoples. For the German occupying authorities war thus appears to offer the most appropriate occasion for carrying out their policy of genocide.”
(At this point I would like to urge people to read what Lemkin actually wrote when trying to describe genocide. It is not a time consuming task. You can find the chapter here.)
What I had found was that the US was maintaining the “war”. It helped to recruit its enemies, to arm them, finance them, and to supply them. Just as I was researching this, a book by David Keen was published about the “War on Terror” which claimed that it was a self-perpetuating endless “war system”. It focussed on clearly “counterproductive” actions undertaken by the US, belying its stated aims:
When it comes to war in other words, winning is not everything; it may be the taking part that counts. Indeed, as Orwell saw in his novel Nineteen Eighty-Four, certain kinds of regimes may thrive off energies and perpetual war. The irrationality of counterproductive tactics, in short, may be more apparent than real, and even an endless war may not be endless in the sense of lacking aims or functions.8
Keen never mentioned Indochina. The precedents he cited of were civil wars in Africa. However it was as if the idea of a war system was, in a sense, on the tip of people’s tongues towards the end of the US involevment in Indochina, as if they knew deep-down that the US was not trying to win the war. It seems almost the implicit subtext of Magnum photographer Philip Jones Griffiths’ book Vietnam Inc. which by its title alone suggests an enterprise quite differently conceived than war. Even the orthodox political discourse (with talk of quagmires and a “stab in the back” story of brave soldiers hamstrung by politicians) hints at a war system. What the US did in Indochina was an absolute textbook example of what Keen was describing.
As I found this way of understanding the past, I was also viewing events in Iraq with the same apprehension. What was occurring on a daily basis was very clearly indicating a parallel process. Captured weapons were dumped unsecured in the countryside. Efforts to secure borders (to at least impede the flow of weapons, resistance fighters and money) were systematically undermined. Just as in Viet Nam, diverted cash sloshed through networks of corruption and was available to resistance groups. People were driven into the arms of the resistance by the random brutality of US personnel, the murderous use of indiscriminate ordnance, and the systematic degradation of the civilian economic sphere. On top of this, the US fomented a civil war.
It is a pity that Keen did not know of the Indochina precedent, because what we know of it goes much deeper and reaches much higher than the what we know of the “War on Terror” (which Keen takes to include Iraq and Afghanistan interventions). Keen discusses various tactics and policies which are counterproductive. But it is not just the counterproductive things which sustain US enemies, it is the ways in which US leaders ensure that they cannot ever achieve a victory. This is what I wrote:
Numerous people, including Jeffrey Record9 and Harry Summers,10 have in effect suggested that the US lacked any winning strategy. In fact, what they had were three no-win strategies – strategies which did not, even in theory, have an end point at which a military victory would be obtained. These were the fire-power/attrition, the graduated response and the enclave strategies. The only strategy by which the US could have attained its stated objective was the pacification strategy, but this too was no threat because the pacification strategy was only weakly implemented while being misapplied, subverted, sabotaged and contravened – not least by the more vigorous application of the fire-power/attrition and graduated response strategies.
You can read all about thatstuffin detail if you want, otherwise you’ll just have to take my word for it. The US systematically ensured that it could never achieve “victory” in Indochina. Perhaps the most blatant example was the brutal genocide unleashed on Cambodia from 1970 until 1975. Not the “genocide” or “autogenocide” of the Khmer Rouge, but the genocide before that, without which there would never have been a Khmer Rouge takeover. Here’s a long excerpt from my Honours piece:
When the the US generated a war in Cambodia they had already had a great deal of experience in Viet Nam and Laos, and what occurred in Cambodia is, in many ways, a naked exposure of the logic behind the genocidal war system, less obfuscated because, ironically, Cambodia was a “sideshow” where it was not the details but the whole war which was kept obscure from the public.
Within a year of Lon Nol’s coup, as mentioned, the economy of Cambodia was virtually destroyed, not only by bombing, but also by US aid. Aid was channelled to the import of commodities and surplus US agricultural goods. It also underwrote the Cambodian government and armed forces: “By the end of 1970, the government was spending five times its revenue and earning nothing abroad.”11 Most of the population became reliant on US aid to eat, and rice supplies were kept at the minimum level needed to prevent food riots. By 1975, malnutrition was widespread and many children starved to death.12
Less than two months after the coup that brought Lon Nol to power, the US invaded Cambodia, along with ARVN forces. They did not bother to forewarn Lon Nol who found out after Richard Nixon had announced the invasion publicly.13 This invasion along US and RVN bombing and the civil war made refugees of around half of the Cambodian population.14 Lon Nol was outraged by the invasion and when later briefed by Alexander Haig (then military assistant to Kissinger) about US intentions he wept with frustration. According to Shawcross, “He wished that the Americans had blocked the communists’ escape route before attacking, instead of spreading them across Cambodia. … The Cambodian leader told Haig that there was no way his small force could stop them. … [Haig] informed Lon Nol that President Nixon intended to limit the involvement of American forces…. They would be withdrawn at the end of June. The the President hoped to introduce a program of restricted military and economic aid. As the implications of Haig’s words for the future of Cambodia became clear to Lon Nol, he began to weep. Cambodia, he said, could never defend itself.”15
As has been detailed, US actions, particularly in bombing, were directly responsible for creating the communist enemy which overthrew Lon Nol. The bombing between 1969 and 1973 took up to 150,000 lives.16 If averaged out, over 33 tons of ordnance were used to kill each Khmer Rouge insurgent.17 Despite the fact that Vietnamese pilots bombed any Cambodian they could, which aided only the Khmer Rouge, Lon Nol acceded to a US demand that he request an increase in VNAF bombing in 1971.18
By May 1972, the Lon Nol regime had control of perhaps 10 per cent of the country and continued to lose territory which was thereafter fragmented into ever smaller enclaves.19 The result was by that stage foregone, and yet the war dragged on for three years with the greater part of the 1 million casualties occurring after that point.
In 1970, when Henry Kissinger briefed Jonathan “Fred” Ladd, who was slated to conduct the war in Cambodia, he told him: “Don’t even think of victory; just keep it alive.”20
When the US Congress finally blocked aid to Cambodia and South Viet Nam, it was with the belated realisation that such aid would not give any hope of victory or improve a bargaining position. Senator Mike Mansfield spoke out, “Ultimately Cambodia cannot survive…. Additional aid means more killing, more fighting. This has got to stop sometime.”21
It was pretty clear that the US was maintaining the situation of armed conflict in order to commit genocide. This was a comprehensive act of genocide which did not merely involve the systematic killing of the target populations, it also involved every other “technique of genocide” described by Lemkin. There was systematic economic, social, cultural, political, and religious destruction. There was the systematic and deliberate ecocidal poisoning of the land and people with defoliants. There was very raw brutality. People were slaughtered by bombs, but there was also murder, rape and torture on a scale beyond imagining. In one book co-written by Nick Turse he finds that when he sets out to find the site of a massacre in Vietnam it becomes like trying to find a needle in a haystack of massacre sites.22 In his next book Kill Anything that Moves Turse tries to show that haystack for what it is. The results would be hard to believe if they were not so well documented. I cannot reduce its contents here, I can only recommend that people acquire and read the book. It is a litany of slaughter that seems almost endless and through it all the command structure and the political structure provide the framework for the personnel to commit atrocities.
This is not just about the choice of tactics – it is also about “grand tactics”, strategy, doctrine, and indoctrination. Psychiatrist and author Robert Jay Lifton famously discussed “atrocity producing situations” as a driving factor behind US war crimes, and I believe we can now conclude these situations were deliberately created, not just because we have other evidence that atrocities were tacitly encouraged, but because the US went to great lengths to replicate these these “atrocity producing situations” in Iraq.
Why Genocide and Not War?
By the end of my honours thesis I was convinced that both the 2nd Indochina War and the “Iraq War” were “genocidal war systems”. Since then I have learnt a great deal more, and my thinking has developed a great deal more. I won’t bore you with the detail, but I came to realise the the “war system” appellation was largely redundant. Genocides are “war systems” by nature. Almost every perpetrator of genocide explains their violence as fighting war.
Genocide was a key means by which the US secured global hegemony in the post-WWII era. I learnt that Korea was also a case of US genocide. US actions there were as shocking, as deadly and as militarily nonsensical as they were in Indochina. Hundreds of thousands were massacred and hundreds of thousands incinerated. 25% of the entire population of North Korea was killed and we should not forget that many hundreds of thousands of the ostensibly allied South Koreans died at US hands or those of US commanded troops. The whole war became widely recognised as a pointless killing machine (described as “the meatgrinder”) while the US needlessly sabotaged and prolonged armistice negotiations.
I can’t explain in this space why Korea, Vietnam and Iraq posed such great threats to US imperial hegemony, but they did and the US successfully dealt with those dangers by committing genocide. These are successful uses of genocide to establish, deepen and maintain imperial hegemony, but we have wilfully blinded ourselves to their nature. Critics of US interventions have evidently been scared to entertain the notion that there was some successfully applied rationale to US behaviour. They have joined with the lovers of war, the nationalists, the racists and the fanatics in declaring over and over and over again the wrong-headedness and failures of US military endeavours. The victims of US genocide quite understandably prefer to see themselves as the plucky Davids that beat the Pentagon Goliath. These are all lies.
US forces storm into one house after another, claiming to be trying to kill flies with sledgehammers. Given that they have entirely demolished several houses and severely damaged many others; and given that they have been caught red-handed releasing flies into targeted houses; and given that they forcibly try to make people buy very expensive fly “insurance”; maybe it is time we consider that neither they, nor their sledgehammers, are concerned in any way with flies (except as a pretext).
Where people might once have been terrified that to suggest any cogent purpose to US actions for fear of giving credit to warmongers, we need not be so worried now. It is very clear that the US does not exert imperial hegemony for the sake of peace and stability, or even for the sake of the enrichment of the US and its people. They never protected us from the nefarious threat of communism and they don’t protect us from the nefarious threat of Islam. A very narrow group of imperialists who share a cohesive long-term hegemonic programme have successfully concentrated power and wealth levels of disparity akin to those in slavery-based economies. They have also created a neofeudal framework of privatised regnal rights. No doubt many of these people have noble intentions, believing that only by such ruthless action can they exert enough control to save humanity from its self-destructive impulses. Many elitists will openly express such opinions and we can certainly understand having concern over the future of the planet. But such people are, in fact, completely insane and they should be taken out of circulation and treated exactly like any other dangerous megalomaniac who believes that they are the new Napoleon. It is not the masses that are threatening the planet. It is not the masses who bring about wars. And though communal violence seems almost the epitome of the mob in action, I know of no genocide that did not result from the actions of a narrow elite.
The reason that we must view US genocides as being genocides and not wars is that we cannot ever understand the logic of their actions in any other way. People shy away from the term genocide and people react violently to what they perceive as its misuse. That indicates just how important it is. I mentioned Nick Turse’s Kill Anything that Moves which is an entire book devoted primarily to the systematic killing of non-combatants. He never uses the term “genocide”. In a work based on veteran testimony, Chris Hedges and Laila al-Arian explain that the very nature of the Iraq occupation is that of an atrocity producing situation and that US personnel have gone “from killing – the shooting of someone who [can] harm you – to murder. The war in Iraq is primarily about murder. There is very little killing.”23 They are talking about the systematic murder of civilians in small increments multiplied many times over, but they never use the term “genocide”. This despite the fact that US actions in Indochina have widely been adjudged genocidal and despite the fact that it was very strongly argued that the US and UK controlled sanctions against Iraq were genocidal. Ask yourself this: if someone was documenting the same thing being perpetrated by Sudan, or by Zimbabwe do you think the word “genocide” would be left out of such works?
Above all we must end the continuing fatuous nonsense spouted by security geeks (including high ranking military and civilian personnel) who seem to believe every exaggerated claim about threats from the Cubans, the Iranians, the Soviets, Al Qaeda in the Falklands (AQIF) or whomever. The morons with their clichés about “fighting the last war” will never ever tire of telling us how the US just doesn’t know how to do counterinsurgency. Really? The question must be, then how did they manage to remain so bad at counterinsurgency when they have spent more person hours on counterinsurgency and counter-guerilla warfare that all other states throughout the entirety of humanity added together? (I could list a few examples here starting with the Indian Wars, mentioning 200 years of interventions in the Western hemisphere, Cuba, Philippines, Pacific War, Korea and Indochina. Then there is also the institutional knowledge built and disseminated by “security co-operation”. Moreover, the US is trains many of the rest of the world’s military leaders to conduct counterinsurgency at Fort Benning).
The point is that you can’t understand what the US does through the lens of war. It is very satisfying, no doubt, for young liberal reporters to outsmart generals (who clearly have no idea how to fight wars because they are just stupid Republicans), but it is seriously delusional. There is an instant exculpation given when these genocides are misrepresented as wars. It is very, very important for perpetrators of aggression or genocide (or both) to conceal their intentionality. The UK government and Tony Blair, in particular, showed far more concern with convincing people that they themselves believed in their fictitious casus belli, than with convincing people that Iraq really did have pose a threat. All of the British media seemed to echo the mantra that you might not agree with Blair but, “no one can doubt his sincerity”. So for moral reasons, in order to end the impunity of the worlds worst war criminals, as well as for intellectual reasons we must grasp the nettle and begin using the term genocide.
Textbook Cases
There are many problematic areas in the subject of genocide. Sometimes it is hard to tell when war ends and genocide begins. It can be hard to tell where state repression becomes persecution and when persecution becomes genocide. Were not the Nuremburg Laws an epitome of what we now call apartheid? Is apartheid a form of slow genocide? Is there structural genocide? Should something only be called genocide if there are mass fatalities?
These are all important considerations and questions, but none of them are relevant here. The genocides I have referenced are absolute textbook cases of genocide. It is impossible to create a coherent and rational definition of the term “genocide” which does not include these genocides.
These genocides were more demonstrably genocidal in nature than the Armenian Holocaust. We should always remember that for the Turkish government, and for most Turks, there was no such thing as a genocide of Armenians. In their own eyes they were fighting a war against Armenian insurgents. Sound familiar?
1In Orwell’s allegory the ‘Party’ represented the ‘educated’ sector of society – people such as the central character Winston Smith, who worked as a journalist.
2George Orwell, Nineteen Eighty-Four. London: Penguin, 1983.
3Jeremy Scahill, Blackwater: The Rise of the World’s Most Powerful Mercenary Army, London: Serpent’s Tail, 2007, p 350.
4Hy V. Luong, ‘Postwar Vietnamese Society: An Overview of Transformational Dynamic’ in Hy V. Luong (ed.), Postwar Vietnam: Dynamics of a Transforming Society. Oxford: Rowman and Littlefield, 2003, pp 12, 14.
5Nicholas Minot; Francesco Goletti, ‘Export Liberalization and Household Welfare: The Case of Rice in Vietnam’ in American Journal of Agricultural Economics, Vol. 80, No. 4. (Nov., 1998), p 743. Minot and Goletti actually (to their own evident surprise) projected a slight overall drop in poverty, but they do so on the basis of changes in real income which do not take into account that rural persons are better able to acquire food without income expenditure. They also slightly underestimate the level of urbanisation – they use the 1990 figure of 20 per cent, when by the time of their writing the figure was over 23 per cent (Michael DiGregorio, A. Terry Rambo, Masayuki Yanagisawa, ‘Clean, Green, and Beautiful: Environment and Development under the Renovation Economy’ in Hy V. Luong (ed.), Postwar Vietnam: Dynamics of a Transforming Society. Oxford: Rowman and Littlefield, 2003, p 189.) and do not account for future urbanisation. Michel Chossudovsky suggests that the Vietnamese did, in the actual event, become considerably poorer (Michel Chossudovsky, The Globalisation of Poverty and the New World Order. Shanty Bay, Ontario: Global Outlook, 2003, p 168).
6Marc Jason Gilbert, “Introduction”, in Marc Jason Gilbert (ed), Why the North Won the Vietnam War. New York: Palgrave, 2002, p 26.
7Rethinking Camelot: JFK, the Vietnam War, and US Political Culture. Boston: South End Press, 1993, p 30.
8David Keen, Endless War? Hidden functions of the ‘War on Terror’. London, Ann Arbor: Pluto Press, 2006, p 51.
9Record, “How America’s Military Performance…”, in Gilbert (ed.), Why the North Won the Vietnam War, p 117.
10Harry G. Summers Jr., On Strategy: A critical analysis of the Vietnam War. New York: Presidio Press, 1995 (1982), p 103.
11William Shawcross, Sideshow: Kissinger, Nixon and the Destruction of Cambodia. London: Fontana, 1980 (1979), p 220.
12Ibid, pp 317-9.
13Ibid, p 149.
14Sorpong Peou, Intervention & Change in Cambodia: Towards Democracy? Singapore: Institute of Southeast Asian Studies, 2000, p 127.
15Shawcross, Sideshow, p 163.
16Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge. New Haven and London: Yale University Press, 1996, p 24.
17Ibid, p 19.
18Shawcross, Sideshow, p 186.
19Ibid, pp 254-5.
20Ibid, p 169.
21Nigel Cawthorne, Vietnam: A War Lost and Won. London: Arcturus Publishing, 2003, p 213; Westmoreland, ‘A Look Back’.
22Deborah Nelson, The War Behind Me: Vietnam Veterans Confront the Truth about U.S. War Crimes, New York: Basic Books, 2008, p 127.
23Chris Hedges and Laila Al-Arian, Collateral Damage: America’s War against Iraqi Civilians, New York: Nation Books, 2008, p xiii.
On Genocide 