Category Archives: Rule of Law

Ineffective Peace Treaty

MagnaCarta

Dan Jones, Magna Carta:

The Birth of Liberty 

 

            The Magna Carta, a document dating from 1215 — a mere 802 years ago – is now regarded as the foundation for some of the most enduring Anglo-American liberties, among them trial by jury; the right of habeas corpus; the principle of no taxation without representation; and the notion that the king is subject to and not above the law.  Grandiose terms such as “due process of law” and the “rule of law” are regularly traced to the Great Charter. Yet, when we look at the charter from the perspective of 1215, we see a markedly different instrument: an ineffective peace treaty designed to end civil war between a loathsome English king and rebellious barons that brought about almost no cessation of hostilities; and a compact that, within a few short weeks of its execution, was condemned by the Pope in the strongest terms, when he threatened both sides with excommunication from the Catholic Church if they sought to observe or enforce its terms.

            Dan Jones’ Magna Carta: The Birth of Liberty seeks to capture the perspective and spirit of 1215. In this compact, easy-to-read volume, Jones, a British historian and journalist who has published extensively on the Middle Ages, takes his readers back to the late 12th and 13th centuries to show the origins and immediate after effects of the Great Charter. To this story, fascinating in itself, Jones adds much rich detail about life in England and on the European continent during the Middle Ages — for kings and barons, to be sure, but also for everyday folks, those without titles of nobility. In Jones’ interpretation, the Magna Carta was the product of a struggle for control of the 13th century English feudal order between three institutions: the crown, the nobility, and the Catholic Church.

           The key characters in Jones’ story are King John I — “bad King John,” as I remember him described in school; approximately 200 barons, England’s’ most powerful nobles who, upon condition of pledging loyalty to the king, ruled over wide stretches of the realm like miniature kings; and Pope Innocent III, in Jones’ view one of the greatest medieval popes, a “reformer, a crusader, and a strict clerical authoritarian” (p.41) with an unbending belief in papal supremacy that was bound to clash with the expansive notions of royal prerogative which John entertained.  Yet, the two headstrong personalities enjoyed a brief period of collaboration that led directly to the Great Charter.

* * *

        Jones rejects recent attempts of historians to rehabilitate John’s reputation. “Bad King John” seems to summarize well who John was: a “cruel and unpleasant man, a second-rate soldier . . . slippery, faithless, interfering, [and] uninspiring . . . not a man who was considered fit for kingship” (p.28-29). Born in 1166, John was the youngest of five sons of the first of England’s Plantagenet kings, King Henry II, and Duchess Eleanor of Aquitaine. Of the five sons, only John and his brother Richard survived to adulthood. Richard, known as “Richard the Lionhearted” for his “peerless brilliance as a military leader” (p.24), succeeded his father as king in 1189.

        Neither Henry nor Richard spent much time in England. Both were busy fighting adversaries in France and acquiring lands in Brittany, Normandy, and Western France.  Richard was also involved both in the Third Crusade to the Holy Land and in wars elsewhere on the European continent. On his deathbed, Henry learned that his son John had joined some of his leading French adversaries in plotting against his father. John repeated his treachery during his brother Richard’s reign: he provoked conflict with Richard’s royal administrators while his brother was away, attempting to seize control of government for himself. Without children, Richard died in battle in France in 1199 and John inherited the English throne.

         John began his reign fighting wars on several fronts in France. Within five years of his accession, he had lost “virtually the whole Continental empire that had been so painstakingly assembled and defended by his father and his brother” (p.33) — not without reason was he known as “John Lackland.” But John “never gave up believing that he was obliged – perhaps even destined – to one day return to the lands he had lost and reclaim them” (p.38). As he devoted the better part of ten years to reclaiming lost French lands, John needed to raise huge revenues. Wars in those days, as in ours, were expensive undertakings.

         John was relentless in exploiting familiar sources of revenue and spotting new ones. He sold immunity from lawsuits and charged aristocratic widows vast sums to forego his right to subject such women to forced marriage. He expanded the lands deemed royal forests, and imposed substantial fines on those who sought to hunt or collect firewood on them. He levied punitive taxes on England’s Jews. None of these measures were wholesale innovations, Jones indicates. What made John different was the “sheer scale and relentlessness with which he bled his realm. Over the course of his reign his average annual income was . . . far higher than [what] either his father or his brother had ever achieved” (p.38).

       But John was most ruthless in imposing taxes and fees upon England’s 200 or so barons, who officially held their land at the pleasure of the king. Pledging loyalty to the king and paying taxes and fees to him permitted a baron to live, literally, like a king in a castle, surrounded by servants who worked in the castle, knights who pledged loyalty to the baron, and serfs who tilled nearby land. Beyond basic rent, the barons were subject to a wide range of additional payments to the king: inheritance taxes, fees for the king’s permission to marry, and payments to avoid sending a baron’s knights to fight in the royal army, known as “scutage,” one of the most contentious sources of friction between John and the barons. John “deliberately pushed numerous barons to the brink of bankruptcy, a state in which they became highly dependent on royal favor” (p.50).

            As tensions between king and barons mounted over John’s “pitilessly efficient legal and a financial administration” (p.53), John also challenged the authority of the Catholic Church, the “ultimate guarantor” in 13th century England of the “spiritual health of the realm” (p.45).  In 1206, John found himself in direct confrontation with the church’s head in Rome, Pope Innocent III.  John objected vehemently to Innocent’s appointment of Stephen Langton as Archbishop of Canterbury, an instance of an on-going struggle over ecclesiastical appointments, in which kings claimed the right to appoint bishops in their kingdoms and popes resisted acknowledging any such right. Langton’s potentially seditious ideas alarmed John. The pope’s nominee condemned the “avarice . . . of modern kings” and criticized those who “collect treasure not in order that they may sustain necessity, but to satiate their cupidity” (p.40-41).

            To impede Langton’s appointment, John seized lands belonging to the Archbishop of Canterbury.  Innocent retaliated by placing an interdict upon England, forbidding most church services, a severe sentence on all of John’s subjects, placing in peril England’s “collective soul” (p.45). Later, the Pope excommunicated John — the ultimate 13th century sanction that a pope could impose upon an earthly being, foreclosing heaven’s everlasting grace and exposing the hapless soul to eternal damnation.  The stalemate ended in 1213 when John, facing the threat of an invasion from France, agreed to accept Langton as Archbishop, pledged obedience to the Pope and the Catholic Church, and vowed to lead a crusade to the Holy Land. Through this “astonishing volte-face,” John could henceforth claim “special protection from all his enemies as a personal vassal of the pope” (p.57).  For his part, Innocent had shown “remarkable moral flexibility,” blending seamlessly the “Christian principle of forgiving one’s enemies with a willingness to consort with almost anyone who he thought could help him achieve his heartfelt desire to smite the Muslims of the Middle East” (p.89).

          Having made his peace with Rome, John pursued his quest to retake previously lost lands in France.  He suffered a humiliating loss  in 1214 at the town of Bouvines in Northern France to forces aligned with French King Phillip Augustus.  After this catastrophic debacle, and with his “foreign policy and military reputation now severely tarnished,” John returned to England to find the “chorus of baronial anger at his high-handed brand of kingship louder than ever” (p.63). A group of barons, but perhaps not a majority, formally renounced their fealty to John, thereby “declaring themselves free to make war upon him” (p.105). Having “unilaterally defied their lord and freed themselves from the feudal oath on which their relationship and the whole of the structure of society depended,” the barons were henceforth “outlaws, rebels, and enemies of the realm” (p.105).  John’s kingdom was “teetering dangerously on the brink of civil war. It was a war he could neither avoid nor afford to pursue” (p.63).

       In a mutinous spirit, the barons demanded that John confirm the Charter of Liberties, a proclamation issued by King Henry I more than a century earlier, in 1100, that had sought to bind the King to certain laws regarding the treatment of nobles, church officials, and individuals.   John’s response was to hold a council in London in January 1215 to discuss potential reforms with the barons. Both sides appealed for assistance to Pope Innocent III. John’s reconciliation with the pope two years earlier turned out to be a “political masterstroke” (p.58). The Pope squarely took John’s side in the dispute, providing him with a key bargaining edge.

          From late May into the early days of June 1215, messengers traveled back and forth between the king and the rebel barons. Slowly but surely they began to feel out the basis for an agreement, with Archbishop Langton playing a key role as mediator. By June 10, 1215, the outlines of an agreement had taken detailed form, and John was ready to meet his rebellious barons in person. The meeting took place at Runnymede, a meadow in Surrey on the River Thames, about 20 miles west of London, a traditional meeting point where opposing sides met to work out differences on neutral ground. General agreement was reached on June 15, 2015.  Four days later, the barons formally renewed their oaths of loyalty to John and official copies of the charter were issued.

* * *

         The bargain at Runnymede was essentially an exchange of peace to benefit the king, for which the barons gained confirmation of many long-desired liberties. The Runnymede charter was “much longer, more detailed, more comprehensive, and more sophisticated than any other statement of English law or custom that had ever been demanded from a King of England” (p.141). The written document was not initially termed “Magna Carta”; that would come two years later.  It consisted of 4.000 words, in continuous Latin text, without divisions. Subsequently the text was sub-divided into 63 clauses. “Read in sequence,” Jones writes, the 63 clauses “feel like a great jumble of issues and statements that at times barely follow one from the other.  Taken together, however, they form a critique of almost every aspect of Plantagenet kingship in general and the rule of John in particular” (p.133).

          Buried deep in the document were Clauses 39 and 40. Clause 39 declared: “No free man is to be arrested or imprisoned or disseized, or outlawed or exiled, or in any other way ruined, nor will we go or send against him, except by the legal judgment of his peers or by the law of the land” (p.138). Clause 40 stipulates: “to no one will we sell, to no one will we deny or delay right or justice” (p.138-39). More than any other portions of the charter, these two clauses constitute the reason why the Magna Carta remained consequential over the course of the following eight centuries. The two clauses enshrine, Jones states, the “basic idea that justice should always restrain the power of government” (p.139). They contain in embryo form the modern notions of due process of law and judgment by equals.

     But these clauses were far from priorities for either side. The charter’s first substantive clause affirmed that “the English Church shall be free” (p.134), a clause inserted at Archbishop Langton’s urging to limit the king from interfering in church appointments. Although the Magna Carta is “often thought to be a document concerned with the secular rights of subjects or citizens,” in 1215 its religious considerations were “given pride of place” (p.135).   Subsequent clauses restrained the king’s right to impose taxes upon the barons.

      The charter explicitly limited the authority of the Exchequer – the king’s treasury, the “most important institution of royal government” (p.14-15) – to impose inheritance taxes, so that it could no longer “extort, bully and ruin anyone whom the king happened merely to dislike” (p.136). Scutage, the tax exacted as an alternative to service in the king’s armies, was to be imposed only after taking the “common counsel of the realm” (p.136), foreshadowing the notion developed later in the 13th and 14th centuries that taxes could be imposed only after formal meetings between the king and his subjects.

        Clause 61, known as the “security clause,” was arguably of greatest importance to the barons. It established a panel of 25 specially elected barons empowered to hold John to his word. If John were to “transgress against any of the articles of peace” (p.140), the clause entitled the barons to renounce their loyalty to the king and take appropriate action, including taking the king’s castles, lands and possessions.  The security clause was the first mechanism in English history to allow the “community of the realm to override the king’s authority when that authority was abused” (p.140). More bluntly, if John were to backslide on his obligations under the charter, the clause explicitly “allowed for licensed civil war” (p.140).

        Other clauses in the charter regulated bridge building; banned fish traps; established uniform weights and measures for corn, cloth, and ale; and reversed the expansion of royal forests that had taken place during John’s reign. There was also, Jones writes, much in the Magna Carta that remained “vague, woolly, or fudged. In places the document feels like frustratingly unfinished business” (p.139). Yet, beneath the host of details and specificities of the charter, Jones sees two simple ideas. The first was that the English barons could conceive of themselves as a community of the realm – a group with “collective rights that pertained to them en masse rather than individually.” Even more fundamentally, although the king still made the law, he explicitly recognized in the charter that he had a duty to “obey [the law] as well” (p.141).

* * *

          The weeks that followed the breakup of the meeting at Runnymede were, as Jones puts it “messy and marked by increasing distrust” (p.143). In the immediate aftermath of the charter’s confirmation, John was flooded with demands that he return land and castles he had confiscated in previous years. Prior to the end of June 1215, John was forced to make fifty such restorations to rebel barons. Seeing little advantage to the peace treaty he had agreed to, John convoked another meeting with the barons in July at Oxford. There, he sought a supplementary charter in which the barons would acknowledge that they were “’bound by oath to defend him and his heirs ‘in life and limb’” (p.144). When the barons refused, John wrote to Pope Innocent III asking him to annul the Great Charter and release him from his oath to obey it.

           Writing back with the “righteous anger that he could summon better than any man in Europe”(p.144), Innocent more than complied with John’s request. In words that left little room for interpretation, Innocent declared the charter “null, and void of all validity forever” (p.145). Under threat of excommunication, Innocent enjoined John from observing the document and the barons from insisting upon its observance. By the end of September 1215, roughly 100 days after its execution, the Magna Carta was, Jones writes, “certifiably dead” (p.145).

* * *

          But the Great Charter did not remain dead.  Although civil war between John and the barons erupted anew in the autumn of 1215, the charter received new life with the deaths of the story’s two protagonists the following year: Innocent died in July 1216 and John in October of that year.   After John’s death, the charter evolved from a peace treaty imposed by the king’s enemies to an “offering by the king’s friends, designed to demonstrate voluntarily the commitment of the new regime to govern by principles on which the whole realm could agree” (p.184-85). For the rest of the thirteenth century, the Magna Carta was “reconfirmed and reissued at moments of political instability or crisis” (p.184-85). Even where its specific clauses grew irrelevant and obsolete, “much importance was still attached to the idea of the Magna Carta as a bargaining chip, particularly in relation to taxation” (p.186-87).   By the end of the 13th century, a peace treaty that lasted just a few weeks more than eight decades earlier had become the “founding stone of the whole system of English law and government” (p.189-190).

       Into this story of political intrigue and civil conflict, Jones weaves detailed descriptions of everyday life in early 13th century England: for example, what Christmas and Easter celebrations entailed; the tenuous lives of serfs; and how life in London, already England’s largest city, differed from that in the rest of the realm.   These passages enliven Jones’ study of the charter’s origins and immediate afterlife.

           In a final chapter, Jones fast forwards several centuries, discussing briefly the Great Charter’s long afterlife: its influence on the rebellion against the Stuart kings in 17th century England, culminating in the Glorious Revolution of 1688; how the charter underlay the rebellion of England’s American colonies during the following century; and its continued resonance in modern times.  The charter’s afterlife, Jones writes, is the story of its myth and symbolism becoming “almost wholly divorced from its original history” (p.5).  Jones’ lucid and engrossing work constitutes an invaluable elaboration of the charter’s original history, reminding us of the unpromising early 13th century environment from which it emerged to become one of the most enduring documents of liberal democracy.

Thomas H. Peebles

La Châtaigneraie, France

May 23, 2017

 

 

 

 

 

4 Comments

Filed under British History, English History, Rule of Law

Global Hubris

Hopgood

Stephen Hopgood, The Endtimes of Human Rights 

      In The Endtimes of Human Rights, Stephen Hopgood delivers a scathing critique of the practices and institutions associated with present day global human rights. Over the course of two introductory sections and five subsequent chapters, Hopgood argues forcefully that today’s global human rights machinery is unsustainable and on the verge of collapse, as the word “endtimes” in his title suggests.  Hopgood uses initial capital letters, “Human Rights,” to describe this broken system, which he contrasts with “human rights” without initial capital letters.

     Lower case human rights refer to ground level, indigenous movements to be free from human rights abuses, which Hopwood wholeheartedly endorses. The endtimes “can never come for this form of ’human rights,’” he argues, “in the same way that nothing can stop people banding together to demand their own freedom or justice in whatever language they prefer” (p.viii).  Upper case Human Rights, by contrast, consist of a “global structure of laws, courts, norms, and organizations that raise money, write reports, run international campaigns, open local offices, lobby governments, and claim to speak with singular authority in the name of humanity as a whole” (p.ix).

    For Hopgood, upper case Human Rights are based on an elitist, one-size-fits-all approach, “overambitious, unaccountable, alienated and largely ineffectual” (p.182).  In their hubris, Human Rights advocates have sought, and have largely succeeded, in arrogating to themselves and the institutions they represent the authority to define the fundamental global norms that are “applicable always, without discretion” (p.122).  The tension between Human Rights and human rights, he argues, is “exactly” the “tension between top-down fixed authority and bottom up (spontaneous, diverse, and multiple) authorities.” (p,x).  The forthcoming collapse of (upper case) Human Rights means that locally inspired (lower case) human rights movements will have space to flourish.

    Hopgood’s arguments against Human Rights focus primarily upon international criminal justice, the process which seeks to hold accountable those who violate international norms against, for example, torture and arbitrary arrests and killings, occurring in the context of what we often term mass atrocities, war crimes, genocide and crimes against humanity.  International criminal justice institutions of concern to Hopgood include the war crimes tribunals for Rwanda and the former Yugoslavia and, especially, the International Criminal Court (ICC) in The Hague, along with non-governmental organizations such as Amnesty International and Human Rights Watch, gatekeeper organizations dedicated to identifying and publicizing human rights abuses and advocating for accountability for abusers.  Human Rights also embraces humanitarianism — the treatment of military and civilian personnel in wartime and crisis situations — and, more recently, has included efforts to secure equal treatment for women and for lesbian, gay, bi-sexual and trans-gender (LGBT) individuals.  These strains of Human Rights, although mentioned in Endtimes, are of less concern to Hopgood, a professor of international relations at the University of London and the author of Keeper of the Flame, Understanding Amnesty International.

     Readers may be surprised to discover that very little of Hopgood’s work involves a direct critique of the day-to-day practices of Human Rights. Readers need to look elsewhere if, for example, their interest is whether hearsay evidence should be admissible before the ICC.  Hopgood addresses Human Rights from a far broader perspective.  His core argument is that although contemporary international criminal justice seeks to secure accountability for human rights abusers through what purports to be a judicial process, the process is almost entirely political.  Hopgood’s interest is in exposing the political underpinnings of this process. A crucial portion of his argument against contemporary Human Rights lies in his elaboration of its European origins.

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     Today’s Human Rights may be traced to what Hopgood terms 19th century European humanism, when progressive, middle class Europeans created a “secular replacement for the Christian god” (p.x) which borrowed heavily from Christian values and concepts, especially the need to alleviate suffering.  Of particular importance was the International Committee of the Red Cross, ICRC, the “first international church” of secular humanism (p.25). The ICRC, founded in 1863 in very Protestant Geneva, Switzerland, was a neutral organization dedicated to providing assistance to soldiers wounded in war.  The ICRC gave rise to the Geneva Convention of 1864, which established standards for the provision of relief in armed conflicts.

      A decade later, the Geneva-based Institut de Droit International (International Law Institute) came into being as a supplement to the ICRC. The institute, a standing council of international jurists charged with providing expert commentary on the laws of war, served as the first step toward international war crimes tribunals, Hopgood contends.  The League of Nations, created in the aftermath of World War I and also based in Geneva, constituted an “epiphany” for secular humanism, the “first truly international organization authorized explicitly by the idea of humanity, not the Christian god” (p.41).  The League was to be a “permanent, transnational, institutional, and secular regime for understanding and addressing the root causes of suffering” (p.41-42).

      This phase of global secular humanism “came crashing to the ground in 1939. The Holocaust and the Second World War destroyed the moral legitimacy and political power, if not the ideological ambition and cultural arrogance, of Europe” (p.xi).  But the Holocaust and World War II gave rise to a perceived need to create institutions better equipped to preserve and advance secular humanism across the globe.  The creation of new institutions began in 1945 with the United Nations and the Nuremberg war crimes tribunal, which served as a model for future war crimes tribunals.  The years 1945-49 were the “last time Europe held such a central place in the design of world order. It was a last moment to embed the humanist dream before the empires were gone” (p.49), Hopgood argues.  The Universal Declaration of Human Rights and the UN’s Anti-Genocide Convention, both dating from 1948, along with a revised 1949 Geneva Convention, were products of this era and remain key instruments of global Human Rights.

       Echoing a theme which Barbara Keys developed in Reclaiming American Virtue: The Human Rights Revolution of the 1970s, reviewed here in November 2015, Hopgood goes on to argue that Human Rights gained impetus in the 1970s when the United States began to prioritize human rights abroad as a key consideration in its foreign policy.  More than any other single factor, Hopgood argues, American power turned lower case human rights into upper case Human Rights, with the “secular religiosity” of European humanism giving way to a “more political, openly pro-democratic form of advocacy” that embraced the “logic of money as power” and “made explicit what had been implicit within international humanism: Human Rights and liberal capitalism were allies, not enemies” (p.12-13).  Human Rights thus became “intimately tied to the export of neo-liberal democracy using American state power” (p.xii).

     The apogee of Human Rights was from 1991 to 2008, the “unipolar moment” of American post-war dominance, with the fall of the Soviet Union and the creation of international tribunals to investigate and prosecute mass atrocities in the ex-Yugoslavia and Rwanda.  During this period, moreover, 120 countries approved the Rome Statute of 1998, the founding charter for the ICC, which Hopgood terms the “apex of international criminal justice” (p.129; the United States was one of just seven states to vote against the Rome statute, along with China, Iraq, Israel, Libya, Qatar and Yemen).  The ICC began hearing cases in 2002. The period also witnessed the emergence of an international “responsibility to protect” victims of human rights abuses, often shortened to R2P, now a recognized basis for humanitarian interventions authorized by the United Nations Security Council.

     But at the very moment when the notion of Human Rights was at its apogee, the “foundations of universal liberal norms and global governance [were] crumbling” (p.1), Hopgood argues.  The United States no longer retains the power it enjoyed after the fall of the Soviet Union in 1991 to foist its neo-liberal vision upon the rest of the world.  Nationalism and religious conviction have reasserted themselves throughout the world, and competing world powers, particularly China and Russia, are not proponents of liberal democracy.  Neither the United States nor any other entity is today capable of speaking and acting on behalf of the international community.

     Rather, we are entering what Hopgood terms a “neo-Westphalian world,” a reference to the 1648 peace treaties which ended Europe’s Thirty Years War and established a system of political order in Europe based on state sovereignty and non-interference in the internal affairs of other states.  The neo-Westphalian world is one of “renewed sovereignty, resurgent religion, globalized markets, and the stagnation or rollback of universal norms about human rights” (p.166).  The “core modernizing assumption” of Human Rights, Hopgood argues, that “history brings secularism, a sense of oneself as an individual rights holder, and the erosion of collective beliefs and loyalties” is “fracturing alongside the Western power that sustained it” (p.166). Neo-Westphalia means “more politics, less morality, and less Europe,” in which the notion of genuine global solidarity becomes little more than a “conceit of human rights advocates in Geneva, New York, and London” (p.177).

    Hopgood looks with favor at the forthcoming collapse of Human Rights, its “endtimes,” much as many Christians look forward to an eschatological endtimes that culminate with the second coming of Jesus.  As Human Rights declines with declining American power, “local interpretations of what rights are and which rights might be sustainable will be essential if human rights are to flourish” (p.xv).  Once lower case human rights replace upper case Human Rights “other alliances can grow” (p.22), with “more international funding and expertise in areas like public health, disease, communication, and mediation – the Médecins Sans Frontières approach—which is more conducive to longer-lasting and effective change than are the often symbolic efforts of large-scale global institutions” (p.21).

     In the endtimes, only “issues of security, natural resources, and trade will excite multilateral engagement” (p.20), along with “very practical but time-limited relief work in logistics, search and rescue, medicine, disease control, and food and shelter” (p.21).  International Human Rights organizations will “turn increasingly to self-promotion. They will be concerned more than ever with themselves” (p.20). The one area where Human Rights seems likely to retain some clout is sub-Saharan Africa, precisely because this is the globe’s single area where Europe retains at least limited influence. “Africa will remain a laboratory for European moral spectatorship, although given Europe’s’ relative global decline, self reliance and church support will likely be the future for the poor and the suffering south of the Sahara” (p.21).

     Despite his searing rhetorical assault on contemporary Human Rights, Hopgood’s specific criticisms of the ICC and, by extension, international criminal justice, are tepid and hardly unconventional: the ICC’s prosecutions have been primarily against lower level state actors, rather than heads of state; they have focused almost exclusively on Africans, with few actions against persons from other regions; and the United States, having refused to ratify the Rome convention, remains an “embarrassing outlier for claims about liberal global norms” (p.129). The “true tragedy” of the ICC is that it is a court that “cannot conceivably exercise political jurisdiction over great powers, creating a permanent two-tier justice system in which strong states use global institutions to discipline the weak” (p.167).

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     Hopgood’s polemical and passionately argued case against modern Human Rights is problematic in several respects.  He offers maddeningly few specifics to support his broad theme that international Human Rights elites, in their hubris, have foisted “universal” and “secular” norms upon unwilling local populations.  The scattered examples he provides are drawn from efforts to secure greater rights for women and LGBT individuals in certain non-Western cultures, difficult and delicate exercises to be sure but well removed from his primary focus on international criminal justice.  Further, it is facile to argue that “renewed sovereignty” threatens international criminal justice. Nationalism and state sovereignty have always been, and are likely always to be, challenges to the aspirations and objectives of international institutions and organizations across the board, not simply to those of international criminal justice — just ask the mavens in Brussels charged with trying to hold the European Union together.

     Hopgood stops short of explicitly recommending abolition of the ICC and other publicly financed international criminal justice institutions and organizations, but his arguments lead inescapably to this recommendation. His contention that the resources presently applied to these institutions and organizations should be redirected to humanitarian relief means that any process seeking accountability for human rights abusers will have to be locally driven.  Given the weak state of domestic justice systems in much of the world, this means still less accountability for those who commit war crimes and mass atrocities than is the case with today’s admittedly imperfect international criminal justice machinery.

Thomas H. Peebles
La Châtaigneraie, France
March 4, 2016

5 Comments

Filed under American Politics, Politics, Rule of Law

Introducing Doubt into Weak, Unstable Minds

spinoza

Steven Nadler, A Book Forged in Hell:
Spinoza’s Scandalous Treatise and the Birth of the Secular Age 

              17th century Amsterdam was known as a liberal and tolerant city, as it is today. But tolerance during what was sometimes called the Dutch Golden age had its limits and, in 1670, an anonymously-published Tractus Theologico-Politicus, or Theological-Political Treatise, crossed well over the line of what the city’s dominant Dutch Reformed Protestant authorities deemed appropriate. Over the next four years, those authorities sought to convince various local governing bodies within the United Provinces of the Netherlands, as it was then known, to ban the Treatise. During this time, the text’s author was somehow identified as one Baruch de Spinoza who, two decades previously, had been ignominiously ex-communicated from Amsterdam’s thriving Portuguese-Jewish community.

       In December 1673, the Treatise was published together with another work, Lodwjik Meijer’s Philosophy, Interpreter of Holy Scripture, in a single volume that bore the false title of a medical treatise. This ruse provided a sufficient basis for Holland’s highest court, the Hof, to enjoin dissemination of both. Describing the two as “harmful poison” which “overflow with blasphemies against God” and appeared designed to “introduce doubt into weak, unstable minds” (p.230), the court officially banned the two works throughout the United Provinces. Shortly thereafter, an implacable foe described the Treatise as having been “[f]orged in hell by the apostate Jew working together with the devil” (p.231).

             This description provides Steven Nadler with the title to his cogent and captivating analysis of the apostate Jew Spinoza’s heretical thinking, A Book Forged in Hell: Spinoza’s Scandalous Treatise and the Birth of the Secular Age. In a work which should appeal to general readers and specialists alike, Nadler also ably captures the 17th century Dutch Golden Age environment in which the Treatise and Meijer’s now largely forgotten work appeared and then officially disappeared. Nadler characterizes the Treatise as “one of the most important and influential books in the history of philosophy, in religious and political thought, and even in Bible studies” (p.240). Further, while often overlooked in books on the history of political thought, the Treatise also has a “proud and well-deserved place in the rise of democratic theory, civil liberties, and political liberalism. The ideas of the Treatise inspired republican revolutionaries in England, America and France” (p.240).

* * *

        It is not difficult to see why the Treatise’s pronouncements on religion and theology rankled Amsterdam’s ecclesiastical authorities. Spinoza’s work, as Nadler summarizes it, “denied the divinity of the Bible, ruled out the possibility of miracles, identified God’s providence with the laws of nature, deflated the revelations of the prophets, and reduced religion to a simple moral code” (p.222). For Spinoza, religion as practiced in the 17th century was “nothing more than organized superstition” (p.31). In the Treatise, Spinoza presented his case for what he considered “true religion,” which had “nothing to do with theology or elaborate church liturgy; it consists only in obeying the Golden Rule” (p.xii). Spinoza saw God not as the “providential, awe-inspiring deity of Abraham” but quite simply the “fundamental, eternal, infinite substance of reality and the first cause of all things” (p.13). It is “not what you believe but what you do that matters,” Spinoza argued in the Treatise. Religion requires us to “know and love God by pursuing the knowledge of nature and to love human beings as ourselves, by acting toward them with charity and justice . . . In short, the divine law commands only virtue” (p.156-57).

          More than any other work, the Treatise laid the foundation for modern critical and historical approaches to the Bible. Perhaps Spinoza’s “most influential, and (to his contemporaries) most shocking conclusion in the Treatise is that Holy Scripture is, in fact, a work of human literature” (p.32), Nadler contends. With “astonishing boldness” (p.131), Spinoza’s Treatise proposed a scientific approach to scripture, working methodically with textual and historical material. Spinoza thus “ushered in modern biblical source scholarship” (p.107). Spinoza’s attack on the belief in miracles also shocked 17th century sensibilities. For Spinoza, miracles were an “‘absurdity’ and the belief in them sheer ‘folly’” (p.83).

        Separating philosophy from religion was the “ultimate goal” (p.207) of the Treatise, Nadler argues, so that “philosophers might be free to pursue secular wisdom unimpeded by ecclesiastic authority” (p.65). The subtitle which Spinoza gave to his Treatise revealed his intention to demonstrate that “freedom to philosophize may not only be allowed without danger to piety and the stability of the republic, but that it cannot be refused without destroying the peace of the republic and piety itself” (p.207). The end of philosophy is truth and knowledge, whereas the end of religion is pious behavior and obedience. Philosophical truth and religious faith thus have “nothing in common with one another, and one must not serve as the rule of the other. Philosophy should not have to answer to religion, no more than religion should have to be consistent with any philosophical system” (p.65). Spinoza’s plea for the freedom of philosophizing became a political argument for a civil state almost unimaginable in the 17th century, in which sectarian religious authorities were tightly confined, with “no influence over public affairs, including intellectual and cultural matters” (p.187).

            In the Treatise’s chapters on governance, Spinoza’s appeal for the separation of philosophy from religion led him to an extended argument for freedom of thought and expression. Spinoza advanced the audacious argument for his day that state efforts to control belief and opinions should be regarded as “tyrannical” (p.208). Matters of opinion and belief belong to “individual right, which no man can surrender even if he should wish to” (p.208), Spinoza argued. He advocated freedom of opinion and belief on utilitarian grounds as “necessary for progress in the discovery of truth and the growth of creativity” (p.209). The state can pursue no safer course, Spinoza wrote in the penultimate paragraph of the Treatise, than to “regard piety and religion as consisting solely in the exercise of charity and just dealing, and that the right of the sovereign, both in religious and secular spheres, should be restricted to men’s actions, with everyone being allowed to think what he will and to say what he thinks” (p.213-14).

           Spinoza thus argued in the Treatise that the purposes of the state are best served by something closely resembling modern liberal democracy. Democracy, Spinoza wrote, represents the “most natural form of state, approaching most closely to that freedom which nature grants to every man. For in a democratic state nobody transfers his natural right to another so completely that thereafter he is not to be consulted; he transfers it to the majority of the entire community of which he is a part” (p.195). In Spinoza’s ideal commonwealth, the “right to determine what is in the common interest, issue laws, and enforce them is given to the people-at-large” (p.193). Under the auspices of the state, the people have the “opportunity to increase their freedom and virtue” (p.197).

           It is unclear how Spinoza was identified as the author of the Treatise. Once recognized, Spinoza was particularly disappointed that many of his closest associates and most liberal allies, those who had the most to gain in the campaign for religious tolerance in 17th century Holland and across Europe, sought to put distance between themselves and the Treatise. Rather than opening the door to greater liberty to philosophize, as he had hoped, Spinoza “seems mainly to have succeeded in mobilizing the entire world, including Dutch liberals, against himself” (p.240) and in bringing the Dutch Golden Age to a close, Nadler wryly observes.

* * *

         Surprisingly, Nadler indicates that until recently Spinoza has been largely ignored in the study of 17th century political philosophers. While it is very difficult to see how this could have been the case, today Spinoza is anything but underappreciated. Few of Nadler’s readers are likely to take issue with his portrayal of Spinoza as “certainly the most original, radical, and controversial figure of his time . . . [whose] philosophical, political, and religious ideas laid the foundation for much of what we now regard as ‘modern’” (p. xv). Nadler’s incisive dissection of the Treatise and his illuminating depiction of the 17th century environment in which it appeared should provide an added boost to the attention and respect accorded to Amsterdam’s apostate Jew.

Thomas H. Peebles
Silver Spring, Maryland
May 23, 2015

5 Comments

Filed under European History, Intellectual History, Political Theory, Religion, Rule of Law, Uncategorized

New Hearing

Image

Deborah Lipstadt, The Eichmann Trial

            The 1961 trial of Adolph Eichmann in Israel is often credited with refocusing world opinion on the horrors of the Holocaust, after years in which there seemed to be little interest in revisiting the details of Nazi Germany’s project to exterminate Europe’s Jewish population.  Eichmann, sometimes euphemistically described as a “transportation specialist,” was responsible for moving approximately 1.5 million Jews to Nazi death camps.  He was kidnapped by Israeli security forces in 1960 in Argentina and taken to Israel to face trial on genocide charges.  Eichmann was found guilty and executed in 1962, the only execution to be ordered by an Israeli civil court.  In “The Eichmann Trial,”  Deborah Lipstadt, among the most knowledgeable and respected contemporary scholars of the Holocaust, ranges widely and probes deeply, providing riveting detail to the events leading up to the trial, followed by incisive discussions of the trial itself and its reverberations.

            Lipstadt’s book could also be considered a series of six stand-alone essays.  The first is a two-page dedication to a police officer killed at the United States Holocaust Museum in Washington, D.C., followed by Lipstadt’s formal introduction, describing the civil defamation suit which Holocaust denier David Irving brought against her in Great Britain in 2000.  The third potential stand alone essay is a cloak-and-dagger, James Bond account of how Israeli operatives tracked Eichmann down in Argentina, abducted him and returned him to Israel to face trial.  Lipstadt then moves to the trial itself, the longest of the six essays.  She next turns to an even-handed discussion of Hannah Arendt’s controversial analysis of the trial for the New Yorker magazine, where Arendt coined the now-familiar term “banality of evil.”  Lipstadt concludes with her own thoughts on the significance of the Eichmann trial and aftershocks, more than 50 years later.  Here, she challenges the conventional notion of the trial as instrumental in refocusing world attention on the Holocaust.  Rather, she argues, the trial gave a “new hearing” to the Holocaust, principally through the poignant testimony of its victims, who rendered it more personal for Jews and non-Jews alike. 

 * * *

           Lipstadt begins her book with a moving dedication to Special Officer Stephen Tyrone Johns.  Johns was a security guard at the United States Holocaust Museum in Washington, D.C., where Lipstadt was a visiting scholar in 2009.  On June 10th of that year, Johns was killed while on duty by an eighty-eight year old racist, anti-Semite and Holocaust denier.  Johns’ murder is a stark and tragic reminder that there are still people willing to act on the violent hatreds that drove the Holocaust. 

 * * *

             In her formal introduction, Lipstadt explains how she became a defendant in Irving’s defamation suit after she had described Irving as a “Hitler partisan wearing blinkers” who, on some level, “seems to conceive himself as carrying on Hitler’s legacy” (p.xvi).  In Great Britain, truth is an absolute defense to defamation charges, as in the United States.  But unlike in the United States, the burden of proof in defamation cases in Britain is on the defendant to show that his or her words were not defamatory.  The British court found that Lipstadt had easily met this burden, terming Irving’s claims “misleading” and “reprehensible.”  Irving’s falsification of the historical record, the court noted, was deliberate and “motivated by a desire to present events in a manner consistent with his own ideological beliefs even if that involved distortion and manipulation of historical evidence” (p.xxii).  Irving’s case against Lipstadt was the second major court proceeding in which the Holocaust was in some sense on trial, after that of Eichmann.  But before she addresses Eichmann’s trial, Lipstadt provides a lively account of how Israel was able to bring Eichmann to Jerusalem to face charges.     

 * * *

           Eichmann had been arrested after World War II and imprisoned in an Allied POW camp, from which he escaped with the help of former SS officers.  After hiding in Germany, Eichmann fled to Argentina, known to be a welcoming venue for former Nazi officials.  He traveled to Argentina with a Red Cross passport under the name Ricardo Klement which, Lipstadt suggests, high level Vatican officials likely helped Eichmann obtain.   Eichmann arrived in Argentina in 1950, and worked during the 1950s in a metal factory, as a water engineer, and as a mechanic at the Mercedes-Benz plan in Buenos Aires. 

            An unlikely series of events led to Israeli identification of Eichmann in Argentina, followed by Israeli operatives’ covert entry into the country, using false documentation.  After Eichmann’s capture, he was escorted out of Argentina on an El Al plane in a manner which may remind readers of the final airport scene in the 2012 film “Argot.”  Lipstadt recounts this tale of stealth and what she terms “deering-do” (p.194) with obvious gusto.  Its swashbuckling zest stands in stark contrast to the ponderous themes she addresses in her discussion of the trial and the book’s two final sections. 

 * * *

           Argentina protested Eichmann’s capture in the United Nations as a violation of its sovereignty, but subsequently waived any claim it might have had for Eichmann’s return from Israel.  The two countries agreed to end their dispute with a joint statement that they had “decided to regard as closed the incident that arose out of the action taken by Israeli nationals which infringed the sovereignty of the State of Argentina.”  Lipstadt notes dourly that “Eichmann got an apology and Israel got Eichmann” (p.23).  But the idea of putting Eichmann on trial in Israel stirred worldwide controversy.  

            The American Jewish Committee, which arguably represented the Jewish establishment in the United States, feared that the trial would prompt questioning of American Jews’ loyalty to the United States.  Conservative commentator William F Buckley, Jr. found the trial symptomatic of a Jewish “refusal to forgive” which, he feared, could fan the “fires of anti-Germanism” and advance communist aims (p.25).  German Chancellor Konrad Adenauer worried that the Eichmann trial might “highlight that the German government was riddled with former Nazi officials” (p.27).  Israel rejected all objections and charged Eichmann with crimes against humanity, war crimes, and crimes against the Jewish people. 

            The trial took place in a Jerusalem cultural center, Beit Ha’am, the “house of the people,” because Jerusalem’s courtrooms were then not only small and shabby but also ill-equipped to handle an international media barrage.  The lead prosecutor was Gideon Hausner, Israel’s Attorney General with an accomplished background in commercial law but no expertise in criminal law or procedure and little courtroom experience.  A three judge panel heard the case, with Moshe Landau serving as presiding judge, flanked by Benjamin Halevi and Yitzhak Raveh, all three “German Jews who received their law degrees in Europe prior to immigration to Palestine” (p.41).  Much of Lipstadt’s account of the trial revolves around how Hausner’s theory of the case differed profoundly from what the three judges thought was at issue. 

           Hausner sought to draw a contrast with the Nurenberg trials, where the murder of Jews had been but another example of Nazi crimes against humanity.  Here, it would be the centerpiece of Nazi crimes.  But while Hausner’s objective was to tell the entire story of the Final Solution, the three-judge panel assigned to the case wanted a “narrowly constructed judicial proceeding that focused on Eichmann’s misdeeds” (p.121).  The judges’ primary objective, Lipstadt explains, was to “conduct a scrupulously fair legal proceeding that would win the respect of the world.”  In contrast, Hausner aimed to “tell the story of the Holocaust in all its details and, in so doing, to capture the imagination not just of Israel’s youth and world Jewry, but of the entire world” (p.21).    

            Hausner’s opening statement is among the best known passages of the trial.  Evoking “J’accuse,” Emile Zola’s impassioned plea for justice during France’s late 19th century trials of Captain Alfred Dreyfus, Hausner told the court that although he stood before them to lead the prosecution of Eichmann, he did not stand alone: 

 With me in this place and at this hour, stand six million accusers.  But they cannot rise to their feet and point an accusing finger towards the man who sits in the  glass dock and cry: “J’accuse.”  For their ashes were piled up in the hills of Auschwitz and in the fields of Treblinka, or washed away by the rivers of Poland; their graves are scattered over the length and breadth of Europe.  Their blood cries out, but their voices are not heard.  Therefore, it falls to me to be their spokesman and to unfold in their name the awesome indictment (p.61-62). 

 This statement marked a milestone for world Judiasm and the State of Israel, Lipstadt argues, with Hausner a “representative of the Jewish people speaking, not as a supplicant begging for help, but as a government official demanding long-delayed justice.”  For the first time, the Jewish people, who “during the war had looked this way and that for someone to speak on their behalf, had risen, not to implore others to save them but to prosecute” (p.62). 

            Hausner  was able to show that Eichmann was “proactive, energetic and a creative master of deception” who, working with dedicated subordinates, “arranged the deportations of a great portion of German Jews.”  He “pursued individual victims with the same zeal with which he deported multitudes – and sometimes even greater zeal” (p.65).  Hausner summoned a wide range of witnesses, many of whom had no direct link to Eichmann.  The witnesses told their stories in what Lipstadt describes as an:

 unprecedently concentrated fashion. . . testifying in the full meaning of the word. . . The retelling and the size and profile of those who would be listening would be entirely different.  Never before had they told their stories in front of such a broad international audience. . . never before had there been such consistently high level media coverage of this tragedy (p.66).  

           Eichmann’s main defense was that he was “exclusively a carrier out of orders” (p.43).  He contended that he “made absolutely sure to get instructions from my chief on even the most minor matters” (p.107).  He invoked memory loss when needed and contended that he was no anti-Semite but rather was working with Jews to extricate them from the problems they encountered.  This testimony broke the solemnity of the proceedings, as spectators greeted it with “derisive laughter” (p.108).  Equally risible was Eichmann’s contention that he too was a victim.  Having the misfortune to find himself in an “inferior position” during the Nazi era and unwilling to shirk his duty, Eichmann told the court that he was no general but rather a mere “tool in the hands of stronger powers and stronger forces, and of an inexorable fate” (p.115).     

           Although his focus was far broader than what the three-judge panel desired, Hausner presented an “overwhelming body of incriminating evidence to prove that Eichamann’s excuses were shams” (p.128).  Lipstadt characterizes Hausner’s closing argument as “impressive” and “sweeping” yet “wrong in many respects” (p.138).  Hausner accused Eichmann of many things he was not responsible for.  “Pushing past the evidence,” Hausner “painted the Holocaust as a well-organized top-down bureaucratic endeavor, though it had been a far more incremental and sometimes even haphazard operation” (p.138).  Linking Eichmann too closely to Hitler not only “turned Eichmann into a caricature” but also:

 diminished the culpability of Himmler, Müller, Heydrich, and many others, and put the onus on one man.  Unable to bring these higher-ranking Nazis to court, Hausner placed their guilt on Eichmann.  It may have served Hausner’s short-term historical goal, but it did not serve the cause of history (p.138).

           To no one’s surprise, the court found Eichmann guilty as charged.  The court nonetheless chastised Hausner for not focusing more narrowly on the specific acts that would have established Eichmann’s culpability, and for utilizing the court as a “forum for clarification of questions of great import” (p.141).  But it went on to find that Eichmann had not offered “truthful evidence. . . His entire testimony was nothing but one consistent attempt to deny the truth and to conceal his real share of responsibility” (p.144).  The panel imposed the death penalty, the first in Israel’s history, which was affirmed by Israel’s Supreme Court on May 29, 1962.  Although many leading Israeli scholars and intellectuals urged Israeli President Ben-Zevi to commute the death sentence, the President rejected all pleas for mercy and Eichmann was hanged on May 31, 1962, the second anniversary of his capture.  But, as Lipstadt writes, the debate about Eichmann and his trial was in no sense over.  Rather, it was “about to enter a new, far more vigorous, acerbic, and intellectually active phase, one that reverberates to this day” (p.147).     

 * * *

            The catalyst for the new and acerbic debate was Hannah Arendt and her famous analysis of the trial for the New Yorker magazine, which was later used for her book Eichmann in Jerusalem: A Report on the Banality of Evil.  Arendt’s  “perspectives on both perpetrators and victims continue to constitute the prism through which many people’s view of the Holocaust is refracted” (p.149), Lipstadt contends.  Arendt’s conclusion that “many of the perpetrators were not innately monsters or diabolical creatures but ‘ordinary’ people who did monstrous things not only seems accurate but is the accepted understanding among most scholars of the perpetrators” (p.169).  Yet, Lipstadt finds Arendt’s analysis of Eichmann “strangely out of touch with the reality of his historical record” (p.169). 

             Arendt gained notoriety for her emphasis upon Jewish leaders’ complicity in the Holocaust.  The “pathetic and sordid” behavior of Jewish governing councils was for Arendt the “darkest chapter” of the Holocaust – darker than the mass shootings and gas chambers because it “showed how the Germans could turn victim against victim” (p.151). Arendt wrote at another point that the “majority of Jews inevitably found themselves confronted with two enemies – the Nazi authorities and the Jewish authorities,” a statement which, Lipstadt reluctantly concludes, sustains Arendt’s critics who accused her of “closing the gap between perpetrator and victim” (p.162). 

             Although Lipstadt finds that Arendt overemphasized the role of Jewish complicity in the Holocaust, Arendt’s fundamental shortcoming was not rooting her analysis in centuries of European anti-Semitism.  Arendt was too vested in European culture, “torn between the particularism of her Jewish roots and the universalism of the intellectual world to which she was so wedded” (p.183), Lipstadt concludes.  Her analysis failed to grasp that Eichmann and his cohorts:

 did not randomly go from being ordinary men to being [murderers].  They traversed a path paved by centuries of anti-Semitism.  They “knew” this road and, given the society in which they lived, it seemed true and natural.  Arendt, so deeply and viscerally committed to the European culture that nurtured the animus, seemed unable to acknowledge this reality ( p. 183).

            Acknowledging that Arendt “spoke with many voices” (p.180), Lipstadt finds that she too often seemed “more interested in turning a good phrase than in understanding its effect.  She wanted to needle her readers to examine their assumptions” (p.184).  Unfortunately, Arendt “seamlessly elided the ideology that was at the heart of this genocide.  She related a version of the Holocaust in which anti-Semitism played a decidedly minor role” (p.187).  

 * * *

            In her final section – the book’s last essay — Lipstadt provides her view of how the Eichmann trial should fit into our attempt to understand the Holocaust.  The term “Holocaust,” although used prior to the trial, in some senses owes its modern usage to the proceedings in Jerusalem.  These proceedings “cemented” the term Holocaust  “into the lexicon of the non-Hebrew population” and “greatly accelerated” Holocaust studies as a recognized field of research and scholarship  (p.188).  The trial further “reinforced the notion that there is universal jurisdiction over genocide.  Even though legal scholars differ over whether Israel was justified in trying Eichmann, there is now a virtual consensus among democratic states that genocidal killers cannot take refuge behind claims of obedience to superior orders” (p.189).  The trial also strengthened Israeli conviction that “the nation had a legitimate right to represent world Jewish interests” (p.194). 

            But these outcomes might not have been possible without the new hearing which the trial afforded to Holocaust victims, generating or accelerating a process whereby the “private and very personal world of the survivor met the public world of commemoration” (p.201).  This hearing was the direct result of Attorney General Hausner’s broadly focused trial strategy, which so irritated the court.  “Hausner’s determination that this trial would be founded on the human story of the Jewish victims’ suffering stands, from a perspective of five decades, as the trial’s most significant legacy” (p.192), Lipstadt concludes.  Through the testimony of victims:

 what happened to European Jewry was transformed in the public’s consciousness.  The trial and the debate that followed inaugurated a slow process whereby the topic of the Holocaust became a matter of concern not only to the Jewish community but to a larger and broader realm of people (p.193)

             Lipstadt closes by linking an affecting description of a reunion between Rwandan genocide victims and Holocaust survivors with what might be considered her “bottom line” lesson of the Eichmann trial.  A young Rwandan man who had lost his entire family in his country’s genocide told her, “Future generations, those who were not there, must remember.  And we who were there, must tell them” (p.203).  This, Lipstadt concludes, may be the “most enduring legacy of what occurred in Jerusalem in 1961” (p.203).  With ever fewer Holocaust witnesses still living, Deborah Lipstadt seems eminently well placed to tell their story, as she demonstrates throughout her lucid, razor-sharp account of the Eichmann trial and its implications.   

 Thomas H. Peebles

Rockville, Maryland

October 20, 2013

8 Comments

Filed under German History, History, Politics, Rule of Law, Uncategorized

Criminals Without Borders

Glenny skinner

Misha Glenny, McMafia:
A Journey Through the Global Criminal Underworld

and

W. Benjamin Skinner, A Crime So Monstrous:
Face-to-Face With Modern Day Slavery

          Both Misha Glenny’s, “McMafia: A Journey Through the Global Criminal Underworld,” and W. Benjamin Skinner’s “A Crime So Monstrous: Face-to-Face With Modern Day Slavery” treat organized crime in the late 20th and 21st centuries. Unlike most of the books reviewed here, these two are directly related to my day job. I initially read both in 2009, while serving as the US Department of Justice representative in Bulgaria. I was there to assist the Bulgarians in strengthening their capacity to combat organized crime and especially one of its most virulent manifestations, trafficking in human beings. Glenny explains the globalization of organized crime networks since the collapse of the Soviet Union and Communist regimes in Eastern Europe, while Skinner delivers an impassioned exposure of the human trafficking phenomenon.

          The two authors intersperse vivid examples from around the world with general insights into the underlying causes for globalized organized crime and human trafficking, along with suggestions for combating these phenomena. Skinner concentrates on the evolution of American anti-trafficking policy, whereas Glenny’s main theme is that deliberate decisions of the governments of the United States and Great Britain in the 1980s not to regulate the international flow of money had a catastrophic effect when the Berlin Wall fell and the Soviet Union disappeared, spawning today’s worldwide network of organized crime groups. Glenny also underscores the close connection between high level public corruption and the new wave of organized crime, as well as the need for an independent judiciary and an objective legal system – what we sometimes refer to as the “rule of law” – to combat the new manifestations of organized crime.

          In addition to treating the subject matter of my professional work, each book starts “close to home” in another sense: the first of several new age gangsters described in Glenny’s book is Bulgarian Ilya Pavlov. Skinner begins with a description of human trafficking in Haiti, where I served in my first Department of Justice overseas assignment.

* * *

          Pavlov, a former Bulgarian wrestler who acquired American citizenship, was indisputably the godfather of Bulgaria’s many modern mafia godfathers, the head of Multi-Group, once the country’s most powerful criminal organization. Pavlov was killed in front of his octopus-like enterprise in Sofia in March 2003. Even today, Pavlov’s killing remains unsolved, along with about 100 other organized crime contract killings in Bulgaria (another on the unsolved list is Ivan “the Doctor” Todorov, a leading figure in the illegal cigarette trade who was gunned down in 2006 directly in front of my apartment in a quiet Sofia residential neighborhood on a weekday afternoon, a time when, fortunately, no family members were in the vicinity). Glenny goes on to describe several other leading figures in today’s increasingly inter-connected and interdependent world of transnational organized crime, not all of whom have (yet) met the fate of Pavlov.

          The organized crime groups that emerged in Bulgaria and elsewhere in Southeast Europe in the early 1990s began by trafficking narcotics, human beings, stolen vehicles, cigarettes, and arms, and a wide variety of other commodities. Organized crime in the Balkans satisfied demand in more affluent Western Europe, Glenny maintains, flourishing because:

ordinary West Europeans spent an ever-burgeoning amount of their spare time and money sleeping with prostitutes; smoking untaxed cigarettes; snorting coke through fifty-euro notes up their noses; employing illegal untaxed immigrant labor on subsistence wages; stuffing their gullets with caviar; admiring ivory and sitting on teak; and purchasing the liver and kidneys of the desperately poor in the developing world (p.41-42).

In Bulgaria, I observed first hand that criminal groups gradually expanded into legitimate businesses, such as insurance, hotels and tourism. It was difficult to avoid doing business with these organizations – they were everywhere! – and I often surmised that disabling them altogether would have a crippling effect on Bulgaria’s already shaky economy.

          But the internationalization of organized crime, Glenny argues, “would not have been possible without globalization—and one aspect in particular, the deregulation of international financial markets” in the 1980s (p.52), for which Glenny blames the United States and “its primary European ally, Britain” (p.xi). The collapse of the Soviet Union that followed the international financial deregulation of the ‘80s was the “single most important event prompting the exponential growth of organized crime around the world” (p.52), with a “no rules” style of capitalism replacing heavily controlled markets in Eastern Europe and the former Soviet Union. The “hopelessly weak” states that emerged in the early 1990s had:

no capacity to define what was “legal” and what was “illegal.” They had neither the money nor the experience to police the novelty of commercial exchange. Those who positioned themselves well in the first three years after the end of Communism were often in a position to make up the rules of their brave new world as they went along (p.15).

           With Russian President Boris Yeltsin enthusiastically bent on introducing capitalism in his country overnight, Russia quickly descended into a “surrealist anarchic capitalism, the Wild East” (p.56). The old Soviet bureaucrats who still administered the new state “did not understand how to monitor, regulate, or adjudicate the principles of commercial exchange” (p.58). Within a short time, the famous Russian oligarchs, a “group of several hundred fabulously wealthy men and women” emerged to enrich themselves in the “grandest larceny in history” (p.57). While the new Russia tried to appear as a responsible capitalist player in world markets, its “most powerful capitalists were raiding its commodities, trading these for dollars, then exporting the funds out of the country in the biggest single flight of capital the world has ever seen (p.57).” The oligarchs sent these huge sums to “obscure banks in every corner of the world, from Switzerland to the Pacific Island of Nauru, to be swallowed almost immediately in bafflingly complex money-laundering schemes” (p.58).

          The organized crime that resulted in the 1990s in Russia and Eastern Europe is intimately linked to public corruption, which spawns organized criminality “with a resolute determinism” (p.67; or, as we often said in Bulgaria, to succeed, a criminal organization needs to put at least one judge, one prosecutor, and one Parliamentarian on its payroll). Both organized crime and corruption flourish in “regions and countries where public trust in institutions is weak” (p.74).

          While the former Soviet Union and former Communist states of Eastern Europe are ground zero for the new wave of organized crime groups under Glenny’s analysis, his perspective is world-wide. He discusses the rise of organized syndicates in Asia, Latin America, Africa and the Middle East. One gripping example is Nigeria, the “Broadway of Crime,” home to the “most successful culture of financial fraud in history, which has assumed a global capacity since the early 1990s” (p.168).

           With an insidiously crafty use of another phenomenon of the 1990s, the internet, Nigerians perfected “advanced fee fraud,” in which victims are asked to send cash upfront in exchange for a promise of much larger sums subsequently. Such scams are familiar throughout the world: appeals in wealthy countries to “come to the aid of an impoverished African child; letters, faxes and e-mail beseeching Americans in particular for funds to erect a new church or bolster a congregation are frequent” (p.165). Another lucrative target are the “lovelorn, in particular middle-aged widows and divorcées who develop virtual relationships with West African boy toys who slowly leech them of their savings as an advance of a sexual congress that never happens” (p.168).

          Advance fee fraudsters rarely face prosecution in Nigeria’s culture of corruption. Nigeria’s problem, Glenny writes, is “possibly the largest single difficulty for the successful globalization of commerce – the absence of the rule of law” (p.178), particularly the “absence of an impartial judiciary and a disinterested legal system” (p.179). Using Nigeria as his example, Glenny argues that for globalization to work, the global market needs to be a level playing field. But this raises the “awkward question of global governance and standards that might be compatible across the world” (p.179). In providing assistance to developing countries, both Europe and the United States send mixed messages:

On the one hand, they encourage transparency and good governance in the developing world by applying a system of conditionality that includes both punishment and incentives; on the other hand, they are desperate to secure energy supplies from countries such as Nigeria and are prepared to bend the rules, especially when confronted by the competitive pressure of Chinese and Indian oil requirements (p.179).

Unless the world’s developed countries can construct an “adequate regulatory mechanism – that is, some form of global governance,” Glenny warns, organized crime and corruption will “combine with protectionism and chauvinism to engender a very unstable and very dangerous world” (p.341).

* * *

          Skinner’s title comes from American abolitionist William Lloyd Garrison, who described slavery as an act “so unnatural, a crime so monstrous, a sin so God-defying, that it throws into the shade all other distinctions known among mankind” (p.229). Skinner insists that the term “human trafficking” is a euphemism and that we should call the phenomena “slavery.” A slave is “someone who is forced to work, through fraud or threat of violence, for no pay beyond subsistence” (p.289; as a retrograde, I still prefer the term “human trafficking,” with most working in the field using the acronym “TIP,” trafficking in persons). Such trafficking is most frequently for the purpose of sexual or labor exploitation. Not surprisingly, as authoritarian communist regimes collapsed and organized crime became global in the 1990s, the trafficking phenomenon “metastasized . . . faster than any other form of slave-trading in history” (p.132). Human trafficking became the “second most lucrative commodity for crime syndicates of all sizes, netting around $10 billion annually (p.132).”

          Skinner’s book starts and end in Haiti, with the first and last episodes dealing with “restavèks,” young Haitian children who work and live with another family, without remuneration and often in appalling circumstances. Skinner was able to get a close-up look at human trafficking and its victims in several other locations throughout the world. In Romania, he befriended Tatiana, who had been trafficked to Amsterdam for sexual exploitation, and shadowed a vice squad in Bucharest to observe sexual trafficking upclose. In India, Skinner visited a labor site dedicated to crushing rock into sand for a variety of products, run by Ramesh Garg. The men, women and children were ostensibly at the site to pay Garg for family debts that spanned generations. Garg “made his money by administering terror and savagery to entire families whom he forced to work for no pay beyond alcohol, grain and bare subsidence expenses” (p.205). Skinner also visited Sudan, Turkey, Saudi Arabia, and Moldova, from which he provides additional graphic illustrations of modern day slavery.

          Interspersed with these examples is the story of the United States’ response to the rise of human trafficking throughout the world. The Clinton administration brought the issue to public attention through its support for the landmark 2000 Trafficking Victims Protection Act (TVPA) which, among other features, establishes a three-tier approach to grading countries around the world in their efforts to curtail human trafficking. Skinner contends that this three-tier approach is seriously flawed, in part because political considerations frequently influence a country’s ranking. Having seen close up how the United States ranks countries in Eastern Europe, I found his indictment against the system fully accurate.

           Most of my tour in Bulgaria was under the Bush administration. Going into this book, I was ready to give the administration high marks for its aggressive anti-trafficking efforts. Skinner, however, is less upbeat. He applauds the energy of John Miller, a Bush appointee as the first anti-trafficking Ambassador under the TVPA, who:

led a bold attack on a disgracefully overlooked crime against humanity. He personified an optimistic approach that abolition, real abolition, was possible. It was an attitude that stood in marked contrast to the cynicism of many international organizations. But he oversaw a policy that was defective before his arrival, and after his departure (p.289).

           The primary defect in Skinner’s view was the influence of right wing evangelicals within the Bush administration who undermined Miller by forcing him to focus almost exclusively on sex trafficking and prostitution, failing to see the extent of labor exploitation. Forced prostitutes, Skinner argues, were “usually the easiest to identify as slaves, particularly if they were underage,” whereas “factory slaves might appear simply to be underpaid sweatshop workers; farm slaves, fearing deportation, would rarely identify themselves; and neighbors might overlook domestic child slaves as merely chore-burdened adopted children” (p.283).

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          Glenny’s book, once a near best-seller, provides specificity to former President Clinton’s observation that the organized crime which arose in the 1990s is the dark underside of globalization. Although Skinner’s book has remained more obscure, notwithstanding a foreword note by the late Richard Holbrooke, Skinner deserves credit for a passionate exposure of one of globalization’s darkest sides. Both books provide eye-opening accounts of the challenges that policy makers and law enforcement officials across the globe face in today’s inter-connected world.

Thomas H. Peebles
Rockville, Maryland
April 24, 2013

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