Category Archives: International Law

Before the Law

The limited formal and negative generality of law under liberalism not only makes possible capitalist calculability but also guarantees a minimum of liberty since formal liberty has two aspects and makes available at least legal chances to the weak. For this reason there develops a conflict between the law and the liberties based thereon on the one side, and the requirements of a monopolistic economy on the other side. Under monopolistic capitalism private property in the means of production as the characteristic institution of the entire bourgeois epoch is preserved but general law and contract disappear and are replaced by individual measures on the part of the sovereign.
— Franz Neumann, The Change in the Function of Law in Modern Society, 1937

Large Capitalist firms — banks as well as monopoly concerns — long ago ceased to depend on court proceedings to conduct their affairs with members of other social groups.
— Otto Kircheimer, State Structure and Law in the Third Reich, 1935 pamphlet

What is legalism? It is the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules.
— Judith N. Shklar, Legalism: Law, Morals, and Political Trials, Harvard University Press, 1964

Do not the bourgeois assert that the present-day distribution is ‘fair’? And is it not, in fact, the only ‘fair’ distribution on the basis of the present-day mode of production? Are economic relations regulated by legal conceptions or do not, on the contrary, legal relations arise from economic ones?
— Karl Marx, Critique of the Gotha Program

Watching the Kavanaugh circus the last few weeks I kept thinking about the way in which the general public now views law and justice. I suspect most Americans think of law and legality in terms they have learned from Hollywood TV. Perhaps there is no other area in which the general public relies so extensively on assumptions and cliche as the judicial system. But it also raises questions about the law that I suspect even relatively well educated people never ask themselves.

The entire narrative that is manufactured each time a justice is nominated to the Supreme Court is among the more overblown and hysterical versions of political theatre we are granted but also the most opaque. For the vast majority of people have no real legal knowledge, nor do they understand the intricacies of the entire appellate courts system. Like most things that pass for politics in America, the nomination is treated as a form of American Idol or a beauty pageant.

But there is another issue attached to the spectacle that accompanies Supreme Court nominations and that has to do with a more philosophical set of questions about both class, and about psychology. And the most obvious and most forgotten (and intentionally obscured) truth about the rule of law is that it is not impartial or in any way democratic.

Mass incarceration shows no sign of slowing down despite the very tireless and relentless work of prison critics and death penalty activists. ICE continues to round up people and separate children from their parents. All legal, of course. Children are sentenced as adults. Men are given life terms for drug offenses. The criminalization of life continues to expand. Criminal codes increase. And that increase and expansion mirrors the German criminal law system under National Socialism.

The first period after the downfall of the Weimar Republic was marked by the rise of authoritarian ideology. An authoritarian criminal theory mingled with elements of the old classical school, dominated the academic field. In the criminal courts the transition was immediately reflected by the imposition of harsher punishments, and by a weakening of the status of the defendant.
— Otto Kircheimer, Criminal Law in National Socialist Germany, 1939

The second shift Kircheimer notes was a shift from the objective facts of the case to the subjective. It was the Nietzschian theory being appropriated. The subjective took the form of a focus on intent, and served thereby to obscure the distinction between act and intention. I’d argue one sees a version of this logic today in the valorizing of remorse. It has become a singularly elevated component in evaluating the appropriate punishment, and more, in how to *feel* about the criminal. The unrepentant are the lowest rung on the ladder of guilt. Remorse and confession eclipse the actual commissioned criminal act. In the Germany of the thirties the law allowed for vagueness in the service of expansion. And in a sense today, victim’s rights and a new subjectivity of remorse and confession are in the service of widening the definition of crime itself. And all correctives (#metoo, for example) are quickly absorbed within a trend that strips away presumptions of innocence and the rights of the accused. For denying accusations sounds perilously close to unapologetic and lacking in the qualities of penitence.

Another instance of professional attitudes may be seen in the way in which such a citadel of conservative lawyerdom as the American Bar Association addresses itself to social issues. Matters are taken up one by one, in isolation from the social context and without discussion of the basic issue. Precisely because the A.B.A. regards itself as the official spokesman of the bar it must present its views in a formal manner that gives the appearance of being supra-political and almost without concrete content. It is the independence of the judiciary, the separation of powers, the preservation of fundamental rights, or just fairness, the policy of justice-never the specific social interests or purposes of policies-that is discussed.
— Judith Shklar, Legalism: Law, Morals, and Political Trials, Harvard University Press, 1964

Shklar wrote Legalism in 1964. She presciently articulated the front edges of that neo Nietzschian fascist sensibility at work in the intentional vagueness that allowed for its use in traversing any theoretical problems with mass warehousing of the poor, cruel and unusual punishments, torture, and executions.

The men who reach candidacy for appointments to positions of authority in the legal apparatus are, these days certainly, uniformly guided by a belief in retaining the status quo, and a devotion to the societal direction of control and oppressive social forms. There are no radicals available even if a President, in a fit of madness, wanted to appoint one.

On balance and over the span of American history, the court has, in fact, done far more to retard progress than to advance it. Most horribly, the court upheld in its decision in Dred Scott the sanctity of slavers’ property interest in other humans. The court likewise approved in its Korematsu decision the World War II–era imprisonment of Japanese Americans based on nothing more than fear and paranoia. The court recently claimed to overturn Korematsu, but in the context of the Trump v. Hawaii decision in which the court upheld the constitutionality of Trump’s Muslim travel ban. In the Citizens United case, meanwhile, the court turned back legislative efforts to rein in the corruption of our politics that follows inevitably from our First Amendment–sponsored orgy of special interest contributions.
— Christopher Jon Sprigman, “The Supreme Court is a Historically Regressive and Presently Expendable Institution“, October 11, 2018

In fact, through most of its history the Supreme Court has engaged in the wildest conservative judicial activism in defense of privileged groups. Right-wing judicial activism reached a frenzy point in George W. Bush v. Al Gore. In a 5-to-4 decision, the conservatives overruled the Florida Supreme Court’s order for a recount in the 2000 presidential election. The justices argued with breathtaking contrivance that since different Florida counties might use different modes of tabulating ballots, a hand recount would violate the equal protection clause of the Fourteenth Amendment. By preventing a recount, the Supreme Court gave the presidency to Bush.

In recent years these same conservative justices have held that the Fourteenth Amendment’s equal protection clause could not be used to stop violence against women, or provide a more equitable mode of property taxes, or a more equitable distribution of funds between rich and poor school districts.
— Michael Parenti, “Right-wing Judicial Activism”, Democracy for the Few, 2010, p. 266

Michael Mandel pointed out that When dealing in their writings with legality, Marx and Engels sought to discredit completely any notion of an autonomous or egalitarian legal realm capable of transcending or resolving the discord, unfulfillment and subjugation of everyday life or (most importantly) of restraining the oppressive social power of class society.” And it was Marx who formulated the concept of base/superstructure. For the total reality (base) of life is found in the total of its relations of production — on top of which a superstructure of political and legal institutions is built.

Here again, however, one sees the overall dumbing down of the American public. And I’m honestly not sure how much of a journey that was. The TV staple ‘lawyer show’ is almost always prosecutorial, and rarely about defense lawyers. There was one, The Divide, but it was cancelled after one season due to low ratings. This is the culture (and here I’m speaking of the white bourgeoisie) that thrives on and embraces racist rhetoric like ‘super predator’ and who fail to see the dogged xenophobia and racism of all lawyer shows. In fact, the single most predominant theme or plot is that of white saviour; the idealistic DA (sic) working to help the “good” black or hispanic kid from the clutches of gangs and drug dealers (the vast majority of the residents of the *ghetto*). White paternalism has always been a hallmark of Hollywood drama. But I digress.

These are difficulties which the man from the country has not expected to meet, the Law, he thinks, should be accessible to every man and at all times, but when he looks more closely at the doorkeeper in his furred robe, with his huge pointed nose and long, thin, Tartar beard, he decides that he had better wait until he gets permission to enter. The doorkeeper gives him a stool and lets him sit down at the side of the door. There he sits waiting for days and years.

— Franz Kafka, “Before the Law”, from The Trial

What is important to recognize is the hegemonic nature of the legal system, and of laws. There is a consensus which grows out of an atmosphere or backdrop that is society wide, and which is manufactured and presented by media and entertainment over and over again. And today these assumptions and consensus travel across various economic trans-national blocs. The paradox, if that is what it is, of a growing nationalist frenzy in Europe and the U.S. serves to mask the greater cooperation of these global economic blocs. And such blocs are also rather fluid, though not completely. And while cynical regarding Nationalistic interests, they also often fall prey themselves to such jingoism. This is the global reality and it shadows domestic institutions, and that most certainly includes the courts. For these economic blocs are immune to judicial or legal interference or sanction.

The idea that the law plays a central role in the American imagination and political imagination is well- trodden ground; noticed early on by Tocqueville and today provocatively framed by some as a form of religious observance for the foundational document that is the U.S. Constitution, the idea of law looms large in the American liberal imagination. One is hard pressed to find an account of liberalism — be it by its proponents or by its critics — that does not feature the rule of law as one of its main tenets, if not as its central normative feature.
— Tiphaine Dickson, “On the Poverty, Rise, and Demise of International Criminal Law“, (2016), Dissertations and Theses, Paper 2707, Portland State University

The courts are reflective, on several levels, of life in the U.S. It is racist firstly. Profoundly so. In death penalty cases, 97% of DA’s were white. And not just that…

[A]n investigation of all murder cases prosecuted . . . from 1973 to 1990 revealed that in cases involving the murder of a white person, prosecutors often met with the victim’s family and discussed whether to seek the death penalty. In a case involving the murder of the daughter of a prominent white contractor, the prosecutor contacted the contractor and asked him if he wanted to seek the death penalty. When the contractor replied in the affirmative, the prosecutor said that was all he needed to know. He obtained the death penalty at trial. He was rewarded with a contribution of $5,000 from the contractor when he successfully ran for judge in the next election. The contribution was the largest received by the District Attorney. There were other cases in which the District Attorney issued press releases announcing that he was seeking the death penalty after meeting with the family of a white victim. But prosecutors failed to meet with African-Americans whose family members had been murdered to determine what sentence they wanted. Most were not even notified that the case had been resolved. As a result of these practices, although African-Americans were the victims of 65% of the homicides in the Chattahoochee Judicial District, 85% of the capital cases were white victim cases.
— S. Bright, Santa Clara Law Review, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty, 1995

One could continue citing statistics for a few hundred pages. The courts express American intolerance and inequality as if under a magnifying glass. And remember that that religious adulation reserved for the *Founding Fathers* (sic) usually conveniently omits that most of them owned slaves. Judith Shklar wrote of the Supreme Court: “this is an institution obviously irreconcilable with democracy, but results from the conjunction of the three following facts: legal traditions inherited from the colonial and Revolutionary period, distrust of any government, and a democracy which had little confidence in itself”.

The courts are factories to process surplus humanity, in the eyes of the ruling class anyway.
— Antonio Gramsci, The Conquest of the State

So, returning to the Brett Kavanaugh circus. (side bar note: Brett boy is a Catholic, which may account for his deficiencies as a public weeper. Evangelicals are far superior at crying. See: Swaggert, Jimmy. Weber, Rep. Randy. Baker, Jim.) The fact is that Obama’s last nominee Merrick Garland was almost a cookie cutter cutout ideologically from Kavanaugh, and John Roberts seems of no interest to most liberals. And it again is a part of this ‘American Idolization’ of the political that no major media outlet ever addresses the fact that even Ginsburg, the erstwhile liberal on the court, is eons removed from William O. Douglas or Brennan. In fact, per the New York Times (circa 1997 it should be noted):

A recent survey by the libertarian Institute for Justice examined Supreme Court opinions between 1993 and 1996. The survey lamented the fact that the Justices least likely to strike down laws infringing civil and economic liberties were President Clinton’s appointees, Justices Ginsburg and Stephen Breyer, who voted to uphold Government power in two-thirds of the cases examined.

Ginsburg is also tight with Antonin Scalia. Go figure, huh.

So it is hard to muster much outrage over another uptight white guy becoming a supreme court justice. The higher courts are the expression of an illusory coherence and imaginary neutrality that it is alleged, stands above the merely political. But, in fact, it is at its core political. The courts adaptation of a rarified positivist grammar, one that carries with it a kind of scientific precision (and it is precise, if one allows it to frame itself. Precise and even beautiful) are, in fact, neither neutral nor precise. But this distance, this hermetic emotionless rationality is really in the service of removing social trauma and human suffering from the rulings, and to hide the class mediated selectivity at work.

In the arena of international law, the first problem has to do with tribunals created by members of the U.N. security council. For such tribunals (The ICTY, at the Hague and the ICTR at Arusha, et al) are trying individuals whose countries of origin are not members of the security council and hence cannot create ad hoc tribunals. Nor can these individuals refuse to participate. Milosevic, who was kidnapped by the U.S. and taken to the Hague, opened his defense by declaring the tribunal illegitimate. Of course, the trial went ahead and he died in custody. A decade later he was acquitted.

It is interesting to note that nobody involved in the killing of Osama bin Ladin was ever thought to be put on trial. Nor whatever drone pilot hit the sixteen year old American Anwar al-Awlaki. The father did bring a suit but it was dismissed out of hand. Or is it possible for the nation of Honduras to form an ad hoc tribunal to consider the role of the U.S. in the recent coup that unleashed massive violence. Could Venezuela form an ad hoc tribunal? No.

Tiphaine Dickson, in her remarkably comprehensive examination of the evolution of international criminal law, notes, the ascendency of human rights as a foreign policy principle took place as an arm of neoliberalism, and came out of a variety of factors that included corporatism, Vietnam and American shame, and in theory the failure of political utopias — this last was really the argument of Samuel Moyn. And failure is certainly a relative term.

By all accounts, human rights organizations made the conscious choice to scuttle socio-economic rights in order to streamline and mainstream their message; in today’s cynical marketing parlance, we would speak of clarifying their brand. This certainly contradicts the idea that these movements stood like deer in the headlights before an unexpected neoliberal ten-ton truck: they had already known it best to dash away to the safe-haven of the atrocity and the war crime.
— Tiphaine Dickson, “On the Poverty, Rise, and Demise of International Criminal Law“, (2016), Dissertations and Theses, Paper 2707, Portland State University

Moyn described the *spectacular atrocity as the organizational fulcrum* of international moral conscience. Now there was also a decided colonial flavor to this marketing parlance. And to its choices. The *dark continent* was the perfect backdrop for the association of primitive bestial violence. A violence that far exceeded what was possible in the advanced West. It is that super predator theme again. And it is again white paternalism. There was another factor in the rise of this specific human rights consciousness and that was what is termed “Holocaust Memory”. The Holocaust industry. So neoliberalism, inequality, and the Holocaust memory idea roughly came to prominence at the same time. And it is interesting, perhaps, to observe the rise of ‘victim’s rights’ in domestic criminal law and practice, a short while later. The role of American guilt, then, is tied into this, or at least the shaping of and control of how guilt is viewed and experienced.

After its defeat in Vietnam, and Richard Nixon’s normalization of relations with China, the United States engaged in a major ideological shift. In the early 1970s, the United States used the Conference on Security and Cooperation in Europe to redefine its enemy. Under the cover of détente with Moscow, this East-West conference agreed on measures supposedly designed to promote lasting peace. The Helsinki Final Act, signed in 1975, endorsed the inviolability of frontiers, territorial integrity of states, and non-intervention in internal affairs of other states (measures designed to reassure Moscow, still fearful of German revanchism). However, that last principle was subtly challenged by Washington’s new cherished “value”: respect for human rights. While seemingly affirming the status quo, this initiated a new phase of indirect U.S. interference in the internal affairs of other nations, no longer in the name of anti-communism, but rather as defense of human rights. In 1978, the Helsinki Watch group was founded to monitor human rights in Soviet bloc countries. Ten years later, Helsinki Watch evolved into Human Rights Watch, whose watchfulness continues to focus on countries where the United States is likely to favor regime change.
— Diana Johnstone, Monthly Review, 2017

I am writing an almost short hand simplified overview here of what is a complex history. But there is enough material, I think, to arrive at a few conclusions. The US court system is not going to ever do other than it always has. It is going to protect those who own the wealth and property of the country, and the Supreme Court is the final voice of the Imperialist ruling elite and its role is to tidy up matters in a way that protects the status quo.

Michael Mandel (in How America Gets Away with Murder) summarizes international criminal courts thus…

So here is the problem with international criminal law: it lets the Americans get away, not only with murder, but with the supreme international crime, and it punishes only the individual evils of the Americans’ enemies – even though these are but the inevitable result of this supreme crime that ‘contains within itself the accumulated evil of the whole.’ It does this so regularly that it cannot be regarded as some minor kink that has to be worked out of the system. Despite international criminal law’s banner commitment to ‘ending impunity,’ its operating principle is really one of ‘selective impunity.

The supreme international crime is, of course, a reference to Robert Jackson’s opening speech at Nuremberg, where he described aggressive war, not in self defense, as the supreme international crime. Which, by my reckoning, means the U.S. is guilty of that crime about 7 or 8 times in just the last twenty years

This is an era of massive organized disinformation, historical revisionism, and outright propaganda. Massive. One of the problems associated with pointing this out is that one is liable to be called a conspiracy theorist. It’s the definitive fear inducing appellation. And even when obvious campaigns of disinformation are being implemented, there is a reluctance on the part of many to point it out. Hollywood, let alone the media news giants and telecoms, are directly tied to the US government, to the Pentagon, CIA, and state department. In Hollywood today CIA advisors sit in on story meetings for any show or film that even indirectly touches on the subject of the military or government or law enforcement. The result has been twenty five years of direct propaganda. Most Americans learn of the court system from TV. Dick Wolf, as an example, as several hugely successful franchises that have legal and courtroom, or law enforcement backdrops and locations. In fact, his latest show is titled FBI. But there are a dozen other show runners and show creators who peddle the same kitsch versions of a cartoon legal world. Most Americans learn most everything from mass corporate entertainment and news. The normalizing of outright executions and coups is experienced as nothing out of the ordinary, and far away anyway. The public is told when to be outraged and when not to be. And they are instructed that class doesn’t exist and that military service is the most noble form or patriotism. And never ever is American exceptionalism to be questioned.

In the legal system there are only ‘individual’ stories, de-linked from social reality and from history. Liberal pieties about the ‘rule of law’ and the reactionaries devotion to morality (others, not their own) again speaks to parallels with National Socialism in the thirties. Kircheimer ends his essay on law under the Third Reich this way:

In effect it is difficult to see how the goal of improving public morality could be obtained by a state that not only operates at such a low level satisfaction of needs, but rests on a supervision and direction of all spheres of life by an oppressive political organization.

So, I’d say the Supreme Court is actually pretty much as it’s always been. Founded by slavers and the rich colonial proprietorial class, it has served the interests of the wealthy, of business and privilege, and has done it without interruption since its inception. There is the additional psychological conditioning today that encourages agreement, encourages consensus and a valorizing of the familiar. Words such as *revolutionary* or *dissent* are considered bad, lumped into an amorphous category labeled *fake news*. *Radical* is a bad word, too. And the business of the courts, all courts, really, is too conform to, and reinforce the values of, a class system and a privileged wealthy elite.

International Court of Justice: forum for Palestine’s dispute with the United States

On 28 September 2018, the State of Palestine filed a complaint against the United States before the International Court of Justice (the ICJ, the UN's Court). The State of Palestine is denouncing the US embassy's recent relocation to Jerusalem. The brief filed by the State of Palestine is based on UNGA Res 181 on The Partition of Palestine, adopted in 1947 . This partition plan provides that the city of Jerusalem, given its broadest definition, does not form part of the two Independent (...)

Canada’s First Principle of International Relations Should Be “First Do No Harm”

Many progressives call for Canada to “do more” around the world. The assumption is that this country is a force for good, a healer of humankind. But if we claim to be the “doctors without borders” of international relations, shouldn’t Canada swear to “first do no harm” like MDs before beginning practice? At a minimum shouldn’t the Left judge foreign policy decisions through the lens of the Hippocratic oath?

Libya illustrates the point. That North African nation looks set to miss a United Nations deadline to unify the country. An upsurge of militia violence in Tripoli and political wrangling makes it highly unlikely elections planned for December will take place.

Seven years after the foreign backed war Libya remains divided between two main political factions and hundreds of militias operate in the country of six million. Thousands have died in fighting since 2011.

The instability is not a surprise to Canadian military and political leaders who orchestrated Canada’s war on that country. Eight days before Canadian fighter jets began dropping bombs on Libya in 2011 military intelligence officers told Ottawa decision makers the country would likely descend into a lengthy civil war if foreign countries assisted rebels opposed to Muammar Gadhafi. An internal assessment obtained by the Ottawa Citizen noted:

There is the increasing possibility that the situation in Libya will transform into a long-term tribal/civil war… This is particularly probable if opposition forces received military assistance from foreign militaries.

A year and a half before the war a Canadian intelligence report described eastern Libya as an “epicentre of Islamist extremism” and said “extremist cells” operated in the anti-Gaddafi stronghold. In fact, during the bombing, notes Ottawa Citizen military reporter David Pugliese, Canadian air force members privately joked they were part of “al-Qaida’s  air force”. Lo and behold hardline Jihadists were the major beneficiaries of the war, taking control of significant portions of the country.

A Canadian general oversaw NATO’s 2011 war, seven CF-18s participated in bombing runs and two Royal Canadian Navy vessels patrolled Libya’s coast. Ottawa defied the UN Security Council resolution authorizing a no-fly zone to protect Libyan civilians by dispatching ground forces, delivering weaponry to the opposition and bombing in service of regime change. Additionally, Montréal-based private security firm GardaWorld aided the rebels in contravention of UN resolutions 1970 and 1973.

The NATO bombing campaign was justified based on exaggerations and outright lies about the Gaddafi regime’s human rights violations. Western media and politicians repeated the rebels’ outlandish (and racist) claims that sub-Saharan African mercenaries fuelled by Viagra given by Gaddafi, engaged in mass rape. Amnesty International’s senior crisis response adviser Donatella Rovera, who was in Libya for three months after the start of the uprising and Liesel Gerntholtz, head of women’s rights at Human Rights Watch, were unable to find any basis for these claims.

But, seduced by the need to “do something”, the NDP, Stephen Lewis, Walter Dorn and others associated with the Left supported the war on Libya. In my new book Left, Right: Marching to the Beat of Imperial Canada I question the “do more” mantra and borrow from healthcare to offer a simple foreign policy principle: First Do No Harm. As in the medical industry, responsible practitioners of foreign policy should be mindful that the “treatments” offered often include “side effects” that can cause serious harm or even kill.

Leftists should err on the side of caution when aligning with official/dominant media policy, particularly when NATO’s war drums are beating. Just because the politicians and dominant media say we have to “do something” doesn’t make it so. Libya and the Sahel region of Africa would almost certainly be better off had a “first do no harm” policy won over the interventionists in 2011.

While a “do more” ethos spans the political divide, a “first do no harm” foreign policy is rooted in international law. The concept of self-determination is a core principle of the UN Charter and International Covenant on Civil and Political Rights. Peoples’ inalienable right to shape their own destiny is based on the truism that they are best situated to run their own affairs.

Alongside the right to self-determination, the UN and Organization of American States prohibit interfering in the internal affairs of another state without consent. Article 2 (7) of the UN Charter states that “nothing should authorize intervention in matters essentially within the domestic jurisdiction of any state.”

A military intervention without UN approval is the “supreme international crime”. Created by the UN’s International Law Commission after World War II, the Nuremberg Principles describe aggression as the “supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” In other words, by committing an act of aggression against Libya in 2011 — notably bombing in service of regime change — Ottawa is responsible not only for rights violations it caused directly, but also those that flowed from its role in destabilizing that country and large swaths of Africa’s Sahel region.

If Canada is to truly be the “good doctor” of international relations it will be up to Left foreign policy practitioners to ensure that this country lives up to that part of the Hippocratic oath stating, “First do no harm”.

Palestinians Suffer as Trump Tears Up Rules-based Order

Washington’s decision to intensify swingeing aid cuts to the Palestinians – the latest targets include cancer patients and peace groups – reveals more than a simple determination to strong-arm the Palestinian leadership to the negotiating table.

Under cover of a supposed peace effort, or “deal of the century”, the Trump administration hopes to solve problems closer to home. It wants finally to shake off the burden of international humanitarian law, and the potential for war crimes trials, that have overshadowed US actions in Afghanistan, Iraq, Libya and Syria – and may yet prove treacherous in dealings with Iran.

The Palestinians have been thrust into the centre of this battle for good reason. They are the most troublesome legacy of a post-war, rules-based international order that the US is now committed to sweeping away. Amputate the Palestinian cause, an injustice festering for more than seven decades, and America’s hand will be freer elsewhere. Might will again be right.

An assault on the already fragile international order as it relates to the Palestinians began in earnest last month. The US stopped all aid to UNRWA, the United Nations refugee agency that helps more than five million Palestinians languishing in camps across the Middle East.

The pressure sharpened last week when $25m in aid was blocked to hospitals in East Jerusalem that provide a lifeline to Palestinians from Gaza and the West Bank, whose health services have withered under a belligerent Israeli occupation.

Then at the weekend, the US revealed it would no longer hand over $10m to peace groups fostering ties between Israelis and Palestinians.

The only significant transfer the US still makes is $60m annually to the Palestinian security services, which effectively enforce the occupation on Israel’s behalf. In short, that money benefits Israel, not the Palestinians.

At the same time, the Trump administration revoked the US visa of the Palestinian ambassador to Washington, Husam Zomlot, shortly after shuttering his diplomatic mission. The Palestinians have been cast fully out into the cold.

Most observers wrongly assume that the screws are simply being tightened to force the Palestinians to engage with Mr Trump’s peace plan, even though it is nowhere in sight. Like an unwanted tin can, it has been kicked ever further down the road over the past year. A reasonable presumption is that it will never be unveiled. While the US keeps everyone distracted with empty talk, Israel gets on with its unilateral solutions.

The world is watching, nonetheless. The Palestinian community of Khan Al Ahmar, outside Jerusalem, appears to be days away from demolition. Israel intends to ethnically cleanse its inhabitants to clear the way for more illegal Jewish settlements in a key area that would eradicate any hope of a Palestinian state.

Mr Trump’s recent punitive actions are designed to choke into submission the Palestinian Authority in the West Bank, just as Israel once secretly put Palestinians in Gaza on a starvation “diet” to make them more compliant. Israel’s long-standing collective punishment of Palestinians – constituting a war crime under the Fourth Geneva Convention – has now been supplemented by similar types of collective punishment by the US, against Palestinian refugees and cancer patients.

Jared Kushner, Mr Trump’s son-in-law and adviser, admitted as much at the weekend. He told the New York Times that the cuts in aid were punishment for the Palestinian leadership “vilifying the [US] administration”.

In an apparent coded reference to international law, Mr Kushner added that it was time to change “false realities”. However feeble international institutions have proved, the Trump administration, like Israel, prefers to be without them.

In particular, both detest the potential constraints imposed by the International Criminal Court at The Hague, which is empowered to prosecute war crimes. Although it was established only in 2002, it draws on a body of international law and notions of human rights that date back to the immediate period after the Second World War.

The crimes committed by Zionist leaders in establishing Israel on the ruins of the Palestinians’ homeland occurred in 1948, just as international law was being born. The Palestinians were among the first, and are still the most glaring, violation of that new rules-based global order.

Righting those historic wrongs is the biggest test of whether international law will ever amount to more than jailing the odd African dictator.

That the Palestinian cause continues to loom large was underscored this month by two challenges conducted in international forums.

Legislators from Israel’s large Palestinian minority have appealed to the United Nations to sanction Israel for recently passing the apartheid-like Nation-State Basic Law. It gives constitutional standing to institutionalised discrimination against the fifth of the population who are not Jewish.

And the Palestinian Authority has alerted the Hague court to the imminent destruction by Israel of Khan Al Ahmar. The ICC is already examining whether to bring a case against Israel over the settlements built on occupied land.

The US State Department has said the aid cuts and closure of the Palestinian embassy were prompted partly by “concerns” over the Hague referral. John Bolton, Mr Trump’s national security adviser, meanwhile, has vowed to shield Israel from any war crimes trials.

Sitting on the fence have been the Europeans. Last week the European parliament passed a resolution warning that Khan Al Ahmar’s destruction and the “forcible transfer” of its inhabitants would be a “grave breach” of international law. In an unusual move, it also threatened to demand compensation from Israel for any damage to infrastructure in Khan Al Ahmar funded by Europe.

Europe’s leading states anxiously wish to uphold the semblance of an international order they believe has prevented their region’s descent into a Third World War. Israel and the US, on the other hand, are determined to use Palestine as the test bed for dismantling these protections.

The Israeli bulldozers sent to Khan Al Ahmar will also launch an assault on Europe and its resolve to defend international law and the Palestinians. When push comes to shove, will Europe’s nerve hold?

• First published in The National

Doctrines of Impunity: John Bolton and the ICC

The Trump administration’s national security advisor John Bolton has never been a fan of international law, a concept he has found, at best, rubbery.  Any institution supposedly guided by its spirit was bound to draw the ire of both his temper and temperament.  Before members of the Federalist Society on Monday, Bolton took to the pulpit with a fury reserved for the unreflective patriot certain that his country, right or wrong, was above such matters.  “The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court.”

The wicked body, in this instance, is the International Criminal Court, established by the Rome Statute to try instances of genocide, war crimes and crimes against humanity, a “court of last resort” backed by 123 nations.

The instigation for such concern on Bolton’s part came from the ICC prosecutor Fatou Bensouda, who requested that the court investigate the commission of war crimes and crimes against humanity in Afghanistan from 2003 by forces including elements of the US military and intelligence services.  In doing so, she was moving the frame of reference beyond a continent that has featured all too readily in the court’s prosecutions: Africa.

Bolton was quick off the mark after the announcement in 2017, with a blistering observation in the Wall Street Journal:

The Trump administration should not respond to Ms. Bensouda in any way that acknowledges the ICC’s legitimacy.  Even merely contesting its jurisdiction risks drawing the US deeper into the quicksand.

Bolton has been consistent with such tirades.  In 2000, he contemplated the issue of whether there was such a thing as “law” in the matter of international affairs. His sustained attack in Transnational Law and Contemporary Problems remains salient to a parochial understanding of how such rules work.  For Bolton, the central defining issue was one of liberty: how such “law” might “affect individuals in the exercise of their individual freedom”.  Prior to the Second World War, international law was essentially a matter of nation states rather than individuals and groups.

Bolton wishes it remained there, a courtly, distant matter separate from the populace.  But “the logic of today’s international law proponents drives them toward more pervasive international command-and-control structures that will deeply affect the domestic policies and constitutions of all nations.”  Such law lacked notions of “popular sovereignty or public accountability through reasonably democratic popular controls over creation, interpretation, and enforcement of laws”.  It lacked clear sources and a mechanism to determine its change.  In short, and here, reflective of the sum of all his grievances against international law, such juridical phenomena were not of the US order of things, specifically the “United States Constitution and its system of government, exemplifying the kind of legal system acceptable to a free person.”

His address to the Federalist Society recapitulates his critique: the “supranational” and “unchecked” conspiracy of the ICC advanced by “‘global governance’ advocates” inimical to the Founders’ vision.  “Any day now, the ICC may announce the start of a formal investigation against these American patriots, who voluntarily signed on to go into harm’s way to protect our nation, our homes, and our families in the wake of the 9/11 attacks…. An unfounded, unjustifiable investigation.”

The efforts of the ICC was to be frustrated at every turn.  No assistance would be provided to its functions and its pursuits. “And, certainly, we will not join the ICC.  We will let the ICC die on its own.  After all, for all intents and purposes, the ICC is already dead to us.”

Bolton keeps interesting company in having such views.  The refusal by the US to ratify the ICC’s founding document in 2002 was joined by Israel, Saudi Arabia and China, fearing its “unacceptable consequences for our national sovereignty”.  Bolton subsequently led efforts as Under Secretary of State in the George W. Bush administration to broker some hundred bilateral deals preventing countries from surrendering US nationals to the ICC.  These remain, by his own admission, a proud achievement.

The ICC has had its fair share of bad press.  It groans under a bureaucracy that has led to accusations of justice delayed being justice denied.  It has conspicuously failed to deter the perpetration of atrocities in Syria, Yemen and Myanmar.  Its Africa-focus has also caused more than a flutter of dissent from states on that continent.  Early last year, the African Union passed a non-binding resolution for member states to withdraw from the court, or at the very least seek reforming it.  South Africa confirmed its desire to remove itself from the jurisdictional reach of the ICC, a decision that continues to shadow law makers.

Bolton’s resentment, in short, has fuel to fire.  President Donald Trump sees any international pact untouched by his influence to be deficient and contrary to the values of the imperium.  But the ICC still has legs, however plodding, and such efforts to despoil their function will not necessarily cripple, let alone kill it.

In contrast to Bolton’s view is another stream of US legal thought that sees international law and its enforcement as indispensable to peace.  That view is unduly rosy, and held, at times, disingenuously. But for the US Chief Prosecutor Robert H. Jackson, delivering his opening address in November 1945 to the judges of the International Military Tribunal at Nuremberg, such a body, far from being abstract, incoherent and spineless, supplied the animating legitimacy for an international court.

What fouled international law’s decent nest were those wars of imperialism waged during the eighteenth and nineteenth centuries, leaving the impression “that all wars are to be regarded as legitimate wars.”  Jackson’s point was that no one, not even the leaders of the United States, could always remain unaccountable, anathema to Bolton’s idea of impunity outside the US constitution.

There is a Deeper, Darker Agenda Afoot as the US cuts UNRWA Funding

The Trump administration’s decision to scrap all future aid payments to the main agency helping Palestinian refugees marks a new – and most likely disastrous – chapter in the Israeli-Palestinian conflict.

The US State Department said on Friday it would no longer continue its $360 million annual contributions to the United Nations Relief and Works Agency for Palestine Refugees (UNRWA), depriving it of a third of its budget. US officials described the organisation as “irredeemably flawed”.

The move follows an announcement last week that Washington had slashed $200 million from other aid programmes for the Palestinians.

About five million Palestinians – many languishing for decades in refugee camps across the Middle East – rely on the agency for essential food, healthcare and education.

Other states in the Middle East have reason to be fearful. Jordan’s foreign minster, Ayman Safadi, warned on Saturday that the denial of aid would “only consolidate an environment of despair that would ultimately create fertile grounds for further tension”.

Jordan, which hosts two million Palestinian refugees, has called a meeting at the UN later this month, along with Japan, the European Union, Sweden and Turkey, to “rally political and financial support” for UNRWA.

Traditional American and European backing for the UN agency could be viewed as reparations for their complicity in helping to create a Jewish state on the ruins of the Palestinians’ homeland. That act of dispossession turned the Palestinians into the world’s largest stateless population.

Except there are few signs of guilt.

The handouts provided via the UN have served more like “hush money”, designed to keep the Palestinians dependent and quiet as western states manage a crisis they apparently have no intention of solving.

That was why the European Union hurriedly promised to seek alternative funds for UNRWA. It noted that the agency was “vital for stability and security in the region” – a stability that has enabled Israel to disappear the Palestinians, uninterrupted, for seven decades.

The Trump administration, by contrast, is more brazen about the new way it wishes to weaponise aid.

US officials have not concealed the fact that they want leverage over the Palestinians to force them to submit to Donald Trump’s long-promised “deal of the century” peace plan.

But there is a deeper and darker agenda afoot than simply reviving failed negotiations or pandering to the Trump administration’s well-known antipathy towards international institutions.

Over the past 25 years, peace talks have provided cover for Israel’s incremental takeover of what was supposed to be a future Palestinian state. In the words of Palestinian lawyer Michael Tarazi, while Israel and the Palestinians were discussing how to divide the pizza, Israel ate it all.

So Mr Trump’s team has, in effect, reverse-engineered a “peace process” based on the reality on the ground Israel has created.

If Israel won’t compromise, Mr Trump will settle the final-status issues – borders, Jerusalem and the refugees – in the stronger party’s favour. The only hurdle is finding a way to bully the Palestinians into acceptance.

In an indication of how sychronised Washington and Israel’s approaches now are, Israeli prime minister Benjamin Netanyahu and the US ambassador to Israel, David Friedman, made almost identical speeches last week.

In an address to American Jewish leaders, Mr Friedman noted that a “different way of thinking” prevailed in the Middle East. “You can’t talk your way, you just have to be strong,” he said.

The next day, Mr Netanyahu reiterated that message. He tweeted: “The weak crumble, are slaughtered and are erased from history while the strong, for good or for ill, survive.”

That sounded uncomfortably like a prescription for the Palestinians’ future.

Israel has already carved out its borders through the ethnic cleansing campaigns of 1948 and 1967. Since then, it has mobilised the settlers and its military to take over almost all of the remnants of historic Palestine. A few slivers of territory in the West Bank and the tiny coastal ghetto of Gaza are all that is left for the Palestinians.

A nod from the White House and Israel will formalise this arrangement by gradually annexing the West Bank.

As far as Jerusalem is concerned, Mr Trump recognised it as Israel’s capital by moving the US embassy there in May. Now, even if it can be born, a Palestinian state will lack a meaningful capital and a viable economy.

The final loose end are the refugees.

Some time ago, Palestinian President Mahmoud Abbas surrendered their right – sanctioned in international law – to return to their former lands in what is now Israel.

Instead, the question was whether Israel would allow the refugees encamped in Lebanon, Syria and Jordan to move to the West Bank and Gaza and become citizens of a Palestinian state.

But if Israel refuses to concede a Palestinian state, even that minimal ambition is doomed.

Israel and the US have an alternative solution. They prefer to dismantle UNRWA and disappear the Palestinians in the swelling tide of refugees spawned by recent western interventions in Iraq, Syria, Libya and Afghanistan. On Sunday Mr Netanyahu welcomed what he called a US move to “abolish the refugee institution, to take the funds and really help rehabilitate the refugees”.

The US and Israel want the Palestinian refugees to fall under the responsibility of the UNHCR, the UN’s umbrella refugee agency – or better still, their host countries.

In a leaked email reported by Foreign Policy magazine this month, Jared Kushner, Mr Trump’s son-in-law and adviser, wrote that it was time to “disrupt UNRWA”. He added that “sometimes you have to strategically risk breaking things in order to get there”.

Central to that disruption is stripping millions of Palestinians of their status as refugees. The Trump administration is due to publish a report later this month, according to Israeli media, that will propose capping the Palestinian refugee population at 500,000 – a tenth of the current number.

Mr Kushner has reportedly been leaning on Jordan to revoke the status of its two million Palestinian refugees, presumably in return for US compensation.

When UNRWA’s mandate comes up for renewal in two years’ time, it seems assured Washington will block it.

If there is no UNRWA, there is no Palestinian refugee problem. And if there are no refugees, then there is no need for a right of return – and even less pressure for a Palestinian state.

Israel and the US are close to their goal: transforming a political conflict governed by international law that favours the Palestinians into an economic problem overseen by an array of donors that favours Israel.

• First published in The National

The First Thing We Do

We can do it the easy way or we can do it the hard way. Romania did it the hard way. Moarte criminalului, death to criminals: armed revolution, then a series of epic Mineriads, with a mild-mannered IMF gent on hand to suck them dry. I was there after the revolution, in the long hiatus between the fourth and fifth Mineriads, and I was starving until someone told us where the soccer stars dine out.

It turned out the way it was bound to, with all the world-standard requisites of responsible sovereignty: The International Bill of Human Rights, the Rome Statute, and the UN Charter. Most core human rights, in fact, and an opposition that demands individual accountability of officials and police. Constitutional change by referendum. A restive and demanding civil society that leaves and returns to their country at will and assembles in public without fear. Rights and freedoms that you can only dream of in your US police state.

It happens again and again like a series of echoes. Leon Rosselson dug up the Diggers: The club is all their law, stand up now. We had San Francisco diggers back then too. But the time was not ripe. The world had not worked out how to help struggling peoples claim their sovereignty.

Now in the burble and slosh of another impending puke, in the countercultural hinterlands of the US a former governor’s son makes a so-so whiskey called Shay’s Rebellion and sells it for a hundred dollars a fifth. He may regret reminding us of it, because it looks like we’re going to do it the hard way. The club is all their law to keep poor folk in awe, That they no vision saw to maintain such a law. At such times history crumples and new jacqueries can touch and draw strength from the many, many old ones. From Xiang Yu, Ankhmakis, the Red Eyebrows, the Yellow Turbans, the Gay Troop, the Circumcellions, the Shocho debtors, the Cudgel Warriors, the Taiping, the Red Spear Society, the Mau Mau, the Shining Path, die Wende, The Black Panther Party, the Allamuchy Tribe, or the Zapatistas…

Maybe even from Sierra Leone: the Kamajors, the RUF, the West Side Boys. Sobels, soldiers by day and rebels by night. The war set the country back 60 years. Years after the war’s end I got a thousand calories on a good day. That was my first brush with wasting, the only time I ever had a sixpack. I wouldn’t recommend it as a slimming regime or as a means of liberation. Once the diamond merchants got involved, the uprising produced a generation of child soldiers, mass dismemberment, and the old Israeli sport of cutting pregnant mothers open to bet on the sex of the fetus.1 By now the country has rejoined the world. The international community responds to armed struggle by imposing law to curb the state predation that caused it. The new law grounds human rights not in nature or in god but in our recourse to rebellion.

But Americans are mired in a brutish, backward corner of the world. Primitive legal and political doctrines hold them back. You can see it from a height on world maps, stark as the nighttime dark of North Korea viewed from orbit.

This map shows the government’s commitments to core human rights, the minimal standards of the civilized world. By this criterion, the US government is crusted at the bottom of the barrel, at about the level of Myanmar, Malaysia, or South Sudan.

This map shows whether the government lets you appeal its actions to independent international human rights experts. The US government forbids you any recourse to the outside world. Again, the US is in the cellar, sunk deep in the bottom ten per cent with North Korea, Iran, China, and some other cats and dogs.

This map is for reporting compliance. In the few cases where the US government has made a commitment, does it report as agreed in good faith? In this respect the US attains mediocrity — the middle of the pack, trailing Russia, China, Saudi Arabia, and Turkey, but more dutiful than North Korea or Iran. Solidly second-rate: under review by the Committee Against Torture, the government turned its report in five years late. This was while CIA was running their secret gulag of “black site” death camps, so they took extra time thinking how to put it nicely.

This map is pass/fail, and our government fails. The US government has failed to issue standing invitations to UN human rights experts reviewing compliance in country.

This map shows whether government meets the world standard for institutionalized human rights under independent expert supervision. Here again the US is floundering in the bottom tier, the international equivalent of Animal House. Even Myanmar can do better than that.

It looks even worse when you dig into specific issues and urgent derelictions. So to sum up, here’s your government’s report card:

Respecting your human rights: F
Giving you recourse to the outside world: F
Reporting on state human rights compliance: C-
Permitting independent human rights examination: F
Instituting independent protection of human rights: F

Apply the minimal standards of the civilized world: the US government doesn’t measure up.

If this were your kid, would you waste college money on him? Our rulers’ abject failure coexists with an odd baseless self-regard. They seem to think they’re paragons of statecraft. The example of countries that know what they’re doing seems not to be enough. Acculturation doesn’t sink in. Like any other hopeless failure, the US government needs to be expelled.

How did the US legal system spawn such a bunch of throwbacks?

Twentieth-century US legal scholars took their cues from Prussian realists of the Iron Chancellor’s day. Rudolph Von Ihering told them to subordinate individual good to social purpose, because everyone agrees, doch, freedom is craps. Our obvious, universally self-evident common purpose is what matters (those days, the Franco-Prussian war was in the back of everybody’s mind). There’s no point setting limits on the state (forget John Stuart Mill.) Ihering thought of law as Darwin in action, only a deterministic sort of Darwin that always makes the bugs turn out the same, just right (Darwin explained everything back then.) Ergo, whatever the law says is right. It all comes down to The Worthlessness of Jurisprudence as a Science, as propounded by J.H. Von Kirschmann.

US legal scholars took worthlessness to heart. They liked that Teutonic jawohling. John Chipman Gray said law is not laws, law is just what judges say. Jerome Frank said, who are we kidding, there are no rules, law’s a bunch of random verdicts. Karl Llewellyn came right out and admitted that all sorts of bureaucrats make law, not just judges. And even today we see the awkward truth of Llewellyn’s statement in the fact that any frightened cop can shoot you dead. US jurisprudence thinks your right to life is nothing but the history of timid assholes armed and dressed in jaunty blue police costumes. Hessel Yntema said that courts are merely pageants in a sort of cathartic mystery religion. To control the ill effects of sacerdotal whimsy, Yntema urged judges to strangle themselves in precedent, groping for the least common denominator of consistency in a degenerating system. We can watch this tendency erupt when US bureaucrats try to drown world-standard human rights law in every idiotic thing that any crooked judge has ever said.

American jurists facing the fundamental question — Is the state for me, or do I exist for the state? – made their choice. They decided you exist for the state. The idea that humanity is not to be used, that the state is a means to human ends and not the other way around, that’s beyond them. They expect you to be selfless in the sense that Arendt cited as the key to success for totalitarian states. Our preeminent mediocrities Benjamin Cardozo and Roscoe Pound remind you not to count on law for protection or for anything else. Law is always changing so naturally lawmakers do what they want, untrammeled by law of any sort. Especially, in practice, when law asserts your human rights. US legal theory is a conscious rejection of the free will underlying human rights. Postwar history is the story of that losing battle.

America’s absolutist furuncle came to a head whenever judges faced clandestine crime. In US v. Curtiss Wright Export Corp. (299 US 304 (1936)), the Supreme Court exempted presidents from the Tenth Amendment where “foreign or external affairs” are concerned. In upholding an indictment for clandestine gun-running in Bolivia, the court cleared the way for state secrets and covert state crime. Harding appointee George Sutherland garbled Justice Story’s nuanced concept of popular sovereignty to grant the president something called ‘complete’ sovereignty. The Supreme Court clearly appreciates the ambiguity of this hackwork, as state criminals can invoke it to silence witnesses to state crimes, keep Congress in the dark, or frame political enemies with secret evidence. Thanks to Sutherland’s slipshod logic, the illegal arms trade the case interdicted is one of CIA’s most lucrative lines of business.

Sutherland also blithely gutted Constitution Article II, Section 2, Clause 2. So much for advice and consent. If you want to cut the Senate out of treaty-making powers, just say your agreement’s not a treaty, it’s a compact. This is convenient when CIA wants to infiltrate terrorists into the US, like Andreas Strassmeir, Sivan Kurzberg, or the 200 other Israeli saboteurs of 9/11. CIA makes an eyes-only intelligence liaison agreement. It’s none of your business, it’s a compact.

Once CIA came into being, judicial groveling peaked. In deference to “intelligence services whose reports are not and ought not be published to the world,” defender of freedom Robert Jackson decided that “It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.” [333 U.S. 103 (1948)] Our courts have affirmed CIA’s impunity, its absolute life-and-death power, and its arbitrary rule.

The Supreme Court’s last gasp of resistance to state crime came during US aggression in Cambodia. The international community had established a Special Committee of 35 states to define aggression. The definition of aggression, UNGA (XXIX) Agenda Item 86, was set to become customary international law when Elizabeth Holtzman and Air Force dissidents asked the court to halt US bombardment of neutral Cambodia. The Supreme Court fractured with countermanding individual orders when Justice Douglas enjoined the bombing. A panicked quorum fobbed the question off onto the Second Circuit, which threw up its hands and called illegal war nonjusticiable.

In washing its hands of US aggression, the court had to stay one step ahead of their hapless forbears Josef Altstötter, et al. UNGA Resolution 2330 (XXII) was expediting work on defining aggression in light of “the present international situation.” By 1973, the situation was little Phan Thị Kim Phúc running naked screaming, “Too hot, too hot!” with burning napalm plastered to her back. The hot potato of judicial acquiescence naturally fell to Thurgood Marshall, one of America’s first black faces in the limousines. With the dignified authority of Prissy birthin’ babies, our ultimate judges held that the bombardment “may ultimately be adjudged to have been not only unwise but also unlawful.”

The court backpedaled furiously from that unnerving brush with adult responsibility. From the ensuing frenzy of judicial forelock-tugging, including United States v. Nixon, Snepp v. United States, and Haig v. Agee, CIA cherry-picked the precedent and seized on “utmost deference” as their magic words to dispel unwelcome scrutiny. Along the way Judge Robert Vance poked his nose into CIA drug trafficking and got himself blown up, and that was that.2 Now the courts know their place.

CIA’s contempt of court is now a hallowed institution. Our idea of a judge is Clarence Thomas, the comically bent speak-no-evil curio that DCI Bush placed on the bench. Prospective lawyers need someone else to look up to. More than any other US legal institution, Harvard Law School bears the burden of taking smart people and brainwashing the sense out of them. Harvard ossified the profession with the case method in the kleptocratic nadir of the Gilded Age. By the 1980s, thirty years of CIA impunity and international disgrace had made US law a laughingstock worldwide. Harvard’s dubious prestige did not protect it from the general rot. Everyone there knew Watergate hero Archibald Cox as the goon who turned a mob of unbadged cops loose on the antiwar occupiers of University Hall. It was harder to get people to perform Paper Chase pomposity. So it was probably unavoidable that Harvard slipped up and hired some smart-aleck teachers.

These were the adherents of Critical Legal Studies or CLS. They helped professors’ secretaries form unions. They called war in Grenada illegal. One of their sympathizers went so far as to sue the USA for war on Nicaragua, and not in a pliant American rubber-stamp court like the Supreme Court where you knew what would happen, but in the World Court. They helped all sorts of powerless people who got screwed by their predatory state. The ferment spawned an enemy within, a revolutionary cell of student pranksters that called itself the Counter-Hegemonic Front. Someone started a Human Rights Program at the law school, undermining frantic statist efforts to wall off human rights from US law. The CLS thinkers made mincemeat of the traditional plodders’ trade-school verities. They showed how legal slogans and nostrums make lawyers into earnest tools of a criminal state.

For youthful exuberance liberated from the soul-murdering tedium of legal regurgitation, what did the case method hacks have to offer? Nothing. While CLS partisans backed students fighting Apartheid, the old guard shooed them off to spread kumbaya coaching soccer at white Afrikaner schools. So the would-be Kingsfields did what they could. In dreary bureaucratic campaigns the old mediocrities made an example of a few of the smartest, mobbing them in meetings, writing 80-page memos of eye-glazing scholastic invidia, running to the president to get them fired in double-secret panels. Their adversaries countered by winning hearts and minds: CLS professors showed greedy student sellouts how their rigorous methods could be applied to the cynical sophistry of corporate law.

US lawyers’ indoctrination came to be policed by the Federalist Society, founded by influential legal crook Ed Meese. The society fought human rights with their thought-stopping shibboleth “treaty law.” An uneasy ideological equipoise returned as Harvard degenerated in lockstep with its statist culture. Now an unprecedented mass of undergraduate cheaters, half the class, has been admonished or sent down and let back in. The last of them have issued from their educational peristalsis, swirled in ignominy, and made it big, but now the prized foreign princelings who valued the Harvard brand as a status symbol increasingly prefer European universities, where societies are less violent and civil-law traditions are more compatible with world-standard principles of comity like human rights.3 Fewer outsiders need learn to prop up a criminal enterprise like the USA. Historian Johan Huizinga showed how the ethos of chivalry became more and more rigid in a parasitic class of knights, and a joke to everybody else. That’s happening now, worldwide, with the doctrinal absurdities of US government and law. The whole world knows your lawgivers are shitheads.

In the Human Rights Committee’s 2014 review of the US, the chair gave a remarkable summation.4 “The idea of the country being a nation of laws, not of men, is hard-wired into the state’s civic DNA.” The consummate diplomat complimented and qualified, sought common ground, then proceeded to give the US delegation a remedial lesson in basic legal reasoning and reading comprehension.

Acknowledging the US government’s “principled approach to the interpretation of treaties,” the chair said, “I hope I am not being accused of being ironic if I express difficulty in understanding what the principles are.” He then gave them basic instruction in the black-letter law of legal interpretation, introduced the relevant provisions of the Vienna Convention on the Law of Treaties, and showed them how to apply it step-by-step through “a perfectly ordinary grammatical reading,” and if confusion somehow persists, how it is to be disposed of in terms of the stated object and purpose of the treaty. What he found really troubling was the example the US set. He left implicit that if every country interpreted treaties so dishonestly, law would degenerate to nonsense.

The chair then addressed the problem of impunity for US government torturers. “One can imagine that they might not be easily prosecuted as a result of spurious legal memoranda” from officials who are themselves protected by the impunity program. “You wouldn’t have to do an international human rights law course maybe to think that such a, such legal, advice deserved some question.” His exasperation mounted as he spoke of the government’s reflex resort to its all-purpose ritual incantation, national security, and its senseless state sadism, a seeming raison d’être of “victimizing victims.” He finally confessed himself baffled: “many of my colleagues might find it as difficult as I do to even begin to comprehend.”

The US government makes a fetish of law but they don’t know what they’re talking about. They seem to think law’s some sort of Alice in Wonderland off-with-her-head arrangement. He asked them what we all want to know: You people can’t be that stupid, What’s wrong with you?

At Penn Law, with its faintly subversive milieu, they used to sell tee shirts printed with Dick the Butcher’s comprehensive program from Henry VI. His wisdom passed into US mass culture in the form of the traditional couplets known as jokes:

What do you call a thousand lawyers chained together at the bottom of the ocean?
A good start.

Indeed, we call that fat hairy corpse at Cibolo Creek Ranch a start.

c.f.5

  1. Israeli arms dealer Simon Yelnik and his ilk sent arms to Liberia. Charles Taylor paid for them with diamonds extracted from Sierra Leone. The Israel Diamond Exchange traded and exported diamonds from Taylor’s diggers. Internment camps like Mapeh functioned as a miners’ hiring hall. Other diggers were impressed as needed in the bush.
  2. When the designated bomber’s conviction collapsed in spectacular prosecutorial malfeasance, he was trundled off to Alabama’s death row for safekeeping. He was executed this past spring, preventing the sort of awkward appeals that make a nuisance of lone nuts Sirhan Sirhan and James Earl Ray.
  3. And the crucial check and balance of saisit le juge.
  4. Human Rights Committee, 110th Session: United States, Part 3, beginning at 2:28.
  5. What is the difference between a lawyer and a rooster?
    When a rooster wakes up in the morning, its primal urge is to cluck defiance.

    – anent legal whistleblowers like Coleen Rowley. The maxim applies equally to consultants. John Weed was a virtuosic nuclear effects modeler who would unwind shooting pumpkins with M1 machine guns. Salt of the earth, in short, a latter-day Wat Tyler, the best of Castle Langley’s restive peasants. He suffers from a sense of right and wrong. Transparency activist and human rights defender John Weed, we thank you for your service. You are the tip of the tip of the iceberg.

Israel Wreaks Terror on Another Harmless Mercy Ship

How revealing! How ironic!

It is Jeremy Corbyn’s misfortune to be surrounded by witless blabbermouths whose unbridled remarks are a gift to Israel lobby propagandists. And while mainstream media in the UK were, as usual, whipping up an anti-Semitism ruckus orchestrated against the Labour Party leader, Israel was busy committing yet another outrage on the high seas against a humanitarian aid vessel peacefully carrying urgently-needed medical supplies for the desperate citizens of blockaded Gaza.

SOSjustfuture4Palestine issued a statement saying:

The Israeli Occupation Forces violently attacked our Norwegian flagged boat Al Awda (‘The Return’) as she was in international waters…. Armed, masked soldiers boarded Al Awda without permission. They assaulted several unarmed participants by hitting them and using tasers.

Reuters (Oslo) reported that the Norwegian Foreign Affairs Ministry demanded the Israeli authorities clarify the circumstances around the seizure of the vessel and the legal basis for the intervention. Israel’s Foreign Ministry declined to comment.

Head of the International Committee of the Red Cross, Zaher Birawi, has said he’s holding Israel fully responsible for the safety of the activists, and stressed that Israel will be prosecuted for the “crime of kidnapping” the Freedom Flotilla ship and its activists, who did not impose a threat to Israel’s security.

British media and Government are deaf, blind and dumb to the enormity of the situation despite the fact that aboard the Al Awda were unarmed activists from 16 nations including 69 year-old British surgeon Dr Swee Ang who has helped medical teams in Gaza on many occasions. And it’s the duty of governments to protect their citizens wherever they may be, especially when they are attacked in international waters.

Early reports said there was blood on the decks and Dr Swee was hit and tasered by Israel’s military thugs. She is now back in the UK after 2 days in Girvon prison but many others are still locked up. Dr Swee has just sent this message:

I was deported from Israeli prison this morning and arrived back at London.

The Israeli Army have stolen my two mobile phones, my camera and most of my clothes and belonging so it is not possible to communicate by phone until I get a new one. But email is still working and I have just arrived home. I have made an audio of the events of 29 July onwards and how our unarmed boat with US$ 15,000 of gauze, wound dressings and antibiotics was abducted from International Waters while on our way to Gaza and taken by force to Ashdod in Israel by the Israeli Army where all 22 participants were subjected to multiple strip searches and then put in Givon prison. There are still participants in prison as I send this to you.

Meanwhile the British Government doesn’t seem in the least bothered by Israel’s breach of  the UN Convention on the Law of the Sea.

Of course, both Israel and the UK have ‘form’ and we’ve been here many times before. Nine years ago (July 2009) I found myself writing this:

Britain’s foreign secretary David Miliband – or rather, someone on his behalf – has written to me about the government’s response to Israel’s hijacking of the mercy ship Spirit of Humanity on the high seas and the outrageous treatment of six peace-loving British citizens (including the skipper), en route to Gaza not Israel, who had their gear stolen or damaged and were thrown into Israeli jails. The letter contains the usual meaningless expressions like ‘deplore’ and ‘press’ and ‘raise the issue’, which are the familiar hallmark of Foreign Office mentality.

Miliband’s spokesman says: “The Israeli Navy took control of the Spirit of Humanity on 30 June, diverting it to Ashdod port in Israel. All those on board, including six British nationals, were handed over to Israeli immigration officials. British consular officials had good access to the British detainees and established that they were treated well. The Israeli authorities deported the detainees on 6 July.”

Treated well? That’s not what the peaceful seafarers say. They were assaulted, put in fear of their lives and deprived of their liberty for fully a week – a long time in a stinking Israeli jail.

Miliband’s spokesman: “The Foreign Secretary said in the House of Commons on 30 June that it was ‘vital that all states respect international law, including the law of the sea. It is also important to say that we deplore the interference by the Israeli navy in the activities of Gazan fishermen.”

Such fine words. Where is the action to back them up?

Miliband’s spokesman: “When the Foreign Secretary spoke to the Israeli Foreign Minister, Avigdor Lieberman, on 1 July he raised the issue with him and asked for clarification about whether or not the Spirit of Humanity had been intercepted in international waters. We will continue to press the Israeli authorities for clarification.”

It’s well over a week and Lieberman hasn’t clarified anything. Was the Israeli ambassador in London summoned and given a dressing down? Has London demanded compensation for the Britishers’ losses and damage? Has the boat and its cargo been returned? Have arrangements been made for the aid to be delivered? Our Zionist-leaning government apparently takes pleasure in Britain’s repeated humiliation. Not long ago the British consul-general in Tel Aviv (a woman) was strip-searched by Israeli security perverts.

Miliband’s spokesman: “We regularly remind the Israeli government of its obligations under international law on a variety of issues, including with respect to humanitarian access to Gaza as well as Israel’s control of Gazan waters and the effect this has on Gaza’s fishing industry.”

Ever get the feeling they’ve switched off their collective hearing aid? What is the point of obligations if they never have to be met?

Miliband’s spokesman: “As I said on the phone, our Travel Advice makes clear that we advise against all travel to Gaza, including its offshore waters; that it is reckless to travel to Gaza at this time…. The UK has been unequivocal in its calls for Israel to lessen restrictions at the Gaza crossings, allowing the legitimate flow of humanitarian aid, trade and reconstruction goods and the movement of people. This is essential not only for the people of Gaza, but also for the wider stability of the region.”

“Unequivocal”? “Essential”? More splendid but empty words. The needs of the crushed and devastated and half-starved people of Gaza have been urgent for 3 years, ever since Britain ganged up with the Zionist axis to bring Gaza to its knees.

Miliband’s spokesman: “Recent events in Gaza are a tragic reminder of the importance of progress on the peace process.”

No kidding……. They are also a tragic reminder of the West’s perverse failure in its duty to enforce compliance with international law, human rights and UN resolutions.

Miliband’s spokesman: “The UK, with the support of our international allies, will continue to pursue vigorously a comprehensive peace based on a two-state solution, involving a secure Israel alongside a viable Palestinian state.”

But never vigorously enough. The world is still waiting….

That was 9 years ago. Why does London perpetuate the blockade of Gaza by colluding in Israel’s unlawful conduct? Where are the consequences and penalties for breaching international law and all codes of human decency?

Part of the problem is the Interim Agreement signed in 1995 that allowed the Israelis to weave a tangled web of security zoning in Gaza’s coastal waters leaving Israel in charge and dictating what happens off-shore and who comes and goes. It’s the sort of agreement no Palestinian would have signed unless under extreme duress.

Being ‘interim’ these restrictions were not expected to last beyond 1999. But they were still in force in 2009 and they are still in force in 2018. Why?

Gaza blockade illegal, illegal, illegal

Israel faces a real threat to its security from militant groups in Gaza. The naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law…  the flotilla acted recklessly in attempting to breach the naval blockade.

That was the conclusion of the UN’s Palmer inquiry under its then Secretary-General Ban Ki-Moon.

It is completely at odds with what other experts have said. The UN itself had already accepted that Israel’s blockade is illegal. One of its own fact-finding missions declared that it constituted collective punishment of the people living in the Gaza Strip and thus was illegal and contrary to Article 33 of the Fourth Geneva Convention. The action by Israel’s military in intercepting the aid ship Mavi Marmara on the high seas in 2010, an assault in which 10 crew and activists were killed, was “clearly unlawful” and couldn’t be justified even under Article 51 of the Charter of the United Nations [the right of self-defence].

No case can be made for the legality of the interception and the Mission therefore finds that the interception was illegal.

The Centre for Constitutional Rights also concluded that the Israeli blockade is illegal.

Due both to the legal nature of Israel’s relationship to Gaza – that of occupier – and the impact of the blockade on the civilian population, amounting to ‘collective punishment’, the blockade cannot be reconciled with the principles of international law, including international humanitarian law… The flotilla did not seek to travel to Israel, let alone ‘attack’ Israel… Israel could have diplomatically engaged Turkey, arranged for a third party to verify there were no weapons onboard and then peacefully guided the vessel to Gaza.

Craig Murray also knows a thing or two about such matters, having headed the Maritime Section of the Foreign and Commonwealth Office. He was responsible for giving political and legal clearance to Royal Navy boarding operations in the Persian Gulf following the Iraqi invasion of Kuwait, to enforce the UN authorised blockade against Iraqi weapons shipments. He commented:

Right of free passage is guaranteed by the UN Convention on the Law of the Seas… Israel has declared a blockade on Gaza and justified previous fatal attacks on neutral civilian vessels on the High Seas in terms of enforcing that embargo, under the legal cover given by the San Remo Manual of International Law Applicable to Armed Conflicts at Sea.

But, he explains, San Remo only applies to blockade in times of armed conflict.

Israel is not currently engaged in an armed conflict… San Remo does not confer any right to impose a permanent blockade outwith times of armed conflict, and in fact specifically excludes as illegal a general blockade on an entire population.

Furthermore, Security Council resolution 1860 (2009) emphasizes “the need to ensure sustained and regular flow of goods and people through the Gaza crossings” and calls for “the unimpeded provision and distribution throughout Gaza of humanitarian assistance, including of food, fuel and medical treatment”. Israel has imposed a land blockade for decades and still has a hand in keeping Gaza’s land crossing with Egypt closed. The 2005 Agreement on Movement and Access between the Palestinian Authority and Israel is also ignored. So the only sensible channel for “unimpeded provision and distribution” is by sea.

The Palmer inquiry was about as warped as it could get. The Terms of Reference said it was “required to obtain its information from the two nations primarily involved in its inquiry, Turkey and Israel, and other affected States…. The information for the Panel’s work came primarily through its interactions with the Points of Contact designated by Israel and Turkey.”

The 4-man panel included a representative each from the governments of Turkey and Israel, and was headed by Sir Geoffrey Palmer (Chair) and Alvaro Uribe, 58th president of Colombia. Palmer was the 33rd prime minister of New Zealand if that’s any consolation. Note the absence of anyone to represent the views of the party targeted by the blockade. Ban Ki-Moon didn’t think it necessary to invite someone from (horror of horrors) the government of Gaza.

Consequently the inquiry’s findings included this gem:

It would be illegal if its imposition [i.e. the blockade] was intended to starve or to collectively punish the civilian population. However, there is no material before the Panel that would permit a finding confirming the allegations that Israel had either of those intentions or that the naval blockade was imposed in retaliation for the take-over of Hamas in Gaza or otherwise. On the contrary, it is evident that Israel had a military objective. The stated primary objective of the naval blockade was for security. It was to prevent weapons, ammunition, military supplies and people from entering Gaza and to stop Hamas operatives sailing away from Gaza with vessels filled with explosives… The earliest maritime interception operations to prevent weapons smuggling to Gaza predated the 2007 take-over of Hamas in Gaza. The actual naval blockade was imposed more than one year after that event. These factors alone indicate it was not imposed to punish its citizens for the election of Hamas.

Palmer’s report oozes bias and makes sickening reading. For example, it refers to “the takeover of Gaza” by Hamas when Hamas, as everyone else knows, was democratically elected in 2006. And Israeli gunboats were already shelling Gaza and shooting up Gazan fishing boats when I was there in 2007.

Then this warning from Palmer…

Once a blockade has been lawfully established, it needs to be understood that the blockading power can attack any vessel breaching the blockade if after prior warning the vessel intentionally and clearly refuses to stop or intentionally and clearly resists visit, search or capture. There is no right within those rules to breach a lawful blockade as a right of protest. Breaching a blockade is therefore a serious step involving the risk of death or injury.

Given that risk, it is in the interests of the international community to actively discourage attempts to breach a lawfully imposed blockade.

So a green light to the rogue state to violently assault any humanitarian vessel approaching Gaza’s waters. What does this whitewash mean for the Palestinians’ bid for statehood? Must the newly fledged state begin its young life with a land and sea blockade in place because Palmer and Uribe say it’s all legal and above-board and Israel’s security comes first? Let us not forget that the West Bank and East Jerusalem are under blockade too.

As for Israel’s constant claim that the primary purpose of the blockade is security, a Wikileaks cable from 2008 reads:

As part of their overall embargo plan against Gaza, Israeli officials have confirmed to [U.S. embassy economic officers] on multiple occasions that they intend to keep the Gazan economy on the brink of collapse without quite pushing it over the edge.” Israel wanted it “functioning at the lowest level possible consistent with avoiding a humanitarian crisis”.

And according to documents released under a Freedom of Information petition by Gisha, an Israeli law centre, Israel operated “a policy of deliberate reduction” of basic goods in the Gaza Strip. Gisha’s director accused Israel of “paralyzing normal life in Gaza”. The documents confirmed that the siege was not for security reasons but aimed at keeping Gazans at near-starvation level. Since around half the population are growing children this act of collective punishment has meant that hundreds of thousands are undernourished.

And the civilised world stands idly by.

Iran brings an action against the United States before the International Court of Justice

On 16 July 2018, the Islamic Republic of Iran filed an action against the United States of America before the International Court of Justice. This court is the internal judicial organ of the UN and is tasked with settling disputes between UN member states. Teheran considers that the sanctions that Washington has taken against it after withdrawing from the 5+1 agreement (JCPoA) violate articles IV 1), VII 1), VIII 1), VIII 2), IX 2) and X 1) of the Bilateral Treaty on Friendship, Economic (...)

Israel is bulldozing Khan Al Ahmar and with it the Two-state Solution

Israel finally built an access road to the West Bank village of Khan Al Ahmar last week, after half a century of delays. But the only vehicles allowed along it are the bulldozers scheduled to sweep away its 200 inhabitants’ homes.

If one community has come to symbolise the demise of the two-state solution, it is Khan Al Ahmar.

It was for that reason that a posse of European diplomats left their air-conditioned offices late last week to trudge through the hot, dusty hills outside Jerusalem and witness for themselves the preparations for the village’s destruction. That included the Israeli police viciously beating residents and supporters as they tried to block the advance of heavy machinery.

Britain, France, Germany, Italy and Spain have submitted a formal protest. Their denunciations echoed those of more than 70 Democratic lawmakers in Washington in May – a rare example of US politicians showing solidarity with Palestinians.

It would be gratifying to believe that Western governments care about the inhabitants of Khan Al Ahmar – or the thousands of other Palestinians who are being incrementally cleansed by Israel from nearby lands but whose plight has drawn far less attention.

After all, the razing of Khan Al Ahmar and the forcible transfer of its population are war crimes.

But in truth Western politicians are more concerned about propping up the illusion of a peace process that expired many years ago than the long-running abuse of Palestinians under Israeli occupation.

Western capitals understand what is at stake. Israel wants Khan Al Ahmar gone so that Jewish settlements can be built in its place, on land it has designated as “E1”.

That would put the final piece in place for Israel to build a substantial bloc of new settler homes to sever the West Bank in two. Those same settlements would also seal off West Bank Palestinians from East Jerusalem, the expected capital of a future Palestinian state, making a mockery of any peace agreement.

The erasure of Khan Al Ahmar has not arrived out of nowhere. Israel has trampled on international law for decades, conducting a form of creeping annexation that has provoked little more than uncomfortable shifting in chairs from Western politicians.

Khan Al Ahmar’s Bedouin inhabitants, from the Jahalin tribe, have been ethnically cleansed twice before by Israel, but these war crimes went unnoticed.

The first time was in the 1950s, a few years after Israel’s creation, when 80 per cent of Palestinians had been driven from their homes to clear the path for the creation of a Jewish state.

Although they should have enjoyed the protection of Israeli citizenship, the Jahalin were forced out of the Negev and into the West Bank, then controlled by Jordan, to make way for new Jewish immigrants.

A generation later in 1967, when they had barely re-established themselves, the Jahalin were again under attack from Israeli soldiers occupying the West Bank. The grazing lands the Jahalin had relocated to with their goats and sheep were seized to build a settlement for Jews only, Kfar Adumim, in violation of the laws of war.

Ever since, the Jahalin have dwelt in a twilight zone of Israeli-defined “illegality”. Like other Palestinians in the 60 per cent of the West Bank declared under Israeli control by the Oslo peace process, they have been denied building permits, forcing three generations to live in tin shacks and tents.

Israel has also refused to connect the village to the water, electricity and sewage grids, in an attempt to make life so unbearable the Jahalin would opt to leave.

When an Italian charity helped in 2009 to establish Khan Al Ahmar’s first school – made from mud and tyres – Israel stepped up its legal battle to demolish the village.

Now, the Jahalin are about to be driven from their lands again. This time they are to be forcibly re-settled next to a waste dump by the Palestinian town of Abu Dis, hemmed in on all sides by Israeli walls and settlements.

In the new location they will be forced to abandon their pastoral way of life. As resident Ibrahim Abu Dawoud observed: “For us, leaving the desert is death.”

In another indication of the Palestinians’ dire predicament, the Trump administration is expected to propose in its long-awaited peace plan that the slum-like Abu Dis, rather than East Jerusalem, serve as the capital of a future pseudo-Palestinian state – if Israel ever chooses to recognise one.

Khan Al Ahmar’s destruction would be the first demolition of a complete Palestinian community since the 1990s, when Israel ostensibly committed to the Oslo process.

Now emboldened by Washington’s unstinting support, Benjamin Netanyahu’s government is racing ahead to realise its vision of a Greater Israel. It wants to annex the lands on which villages like Khan Al Ahmar stand and remove their Palestinian populations.

There is a minor hurdle. Last Thursday, the Israeli supreme court tried to calm the storm clouds gathering in Europe by issuing a temporary injunction on the demolition works.

The reprieve is likely to be short-lived. A few weeks ago the same court – in a panel dominated by judges identified with the settler movement – backed Khan Al Ahmar’s destruction.

The Supreme Court has also been moving towards accepting the Israeli government’s argument that decades of land grabs by settlers should be retroactively sanctioned – even though they violate Israeli and international law – if carried out in “good faith”.

Whatever the judges believe, there is nothing “good faith” about the behaviour of either the settlers or Israel’s government towards communities like Khan Al Ahmar.

Saeb Erekat, the Palestinians’ veteran peace negotiator, recently warned that Israel and the US were close to “liquidating” the project of Palestinian statehood.

Sounding more desperate than usual, the Europe Union reaffirmed this month its commitment to a two-state solution, while urging that the “obstacles” to its realisation be more clearly identifed.

The elephant in the room is Israel itself – and its enduring bad faith. As Khan Al Ahmar demonstrates all too clearly, there will be no end to the slow-motion erasure of Palestinian communities until western governments find the nerve to impose biting sanctions on Israel.

• First published in The National