Tag Archives: Libya

Exuberance That Failed to Last

Robert Worth, A Rage for Order: The Middle East in Turmoil,

From Tahrir Square to ISIS 

            The upheaval known as the Arab Spring began on December 17, 2010, when a Tunisian street fruit vendor, Muhammed Bouazizi, doused his body with gasoline and burned himself.  The 26-year old had been distraught over confiscation of his cart and scales by municipal authorities, ostensibly because he lacked a required work permit. Pro-democracy protests throughout Tunisia began almost immediately after Bouazizi’s self-immolation, aimed at Tunisia’s autocratic ruler Zine El Abidine Ben Ali.  Bouazizi died 18 days later, on January 4, 2011. On January 14, 2011, Ben Ali, who had fled to Saudi Arabia, resigned the office he had held since 1987.

          In less than two weeks, pro-democracy demonstrations against Hosni Mubarak, Egypt’s strongman president since 1981, took place on Cairo’s Tahrir Square.  On February 11, 2011, Mubarak too resigned his office. By that time, protests against ruling autocrats had broken out in Libya and Yemen. On March 14, 2011, similar protests began in Syria.  Before the end of the year, Yemen’s out-of-touch leader, Ali Abdullah Saleh, President of North Yemen since 1978 and of Yemen since the North’s merger with South Yemen in 1990, had been forced to resign; and Colonel Muammar Qaddafi, who had ruled Libya since 1969, was driven from office and shot by rebels. Of the region’s autocrats, only Syria’s Bashar al-Assad still clung to power, and his days too appeared numbered.

           The era of dictators and despots was over in the Middle East, or so it seemed. The stupefying departures in a single calendar year of four of the Arab world’s seemingly most firmly entrenched autocrats prompted many exuberant souls, myself included, to permit themselves to believe that finally, at last, democracy had broken through in the Middle East.  Some went so far as to compare 2011 to 1989, when the Berlin Wall fell and countries across Central and Eastern Europe were suddenly out from under Soviet domination.

          But, as we now know, 2011 was no 1989: the euphoria and giddiness of that year have turned to despair. Egypt’s democratically elected president, Muhammad Morsi, was deposed by a military coup and the current government seems as ruthlessly autocratic as that of Mubarak. Assad holds on to power in Syria amidst a ruinous civil war that has cost hundreds of thousands lives and shows few signs of abating.  Yemen and Libya appear to be ruled, if at all, by tribal militias and gangs. Only Tunisia offers cautious hope of an enduring democratic future. And hovering over the entire region is the threat of brutal terrorism, represented most terrifyingly by the self-styled Islamic State in Iraq and Syria, ISIS.

         For those wondering how such high initial hopes could have been so thoroughly dashed, and for those simply seeking to better their understanding of what happened, Robert Worth’s A Rage for Order: The Middle East in Turmoil, From Tahrir Square to ISIS, should be prescribed reading. A former Middle East correspondent for the New York Times, Worth takes his readers on a personally guided country-by-country tour of Tunisia, Egypt, Libya, Yemen and Syria, places that seemed so promising in early 2011, with roughly half the book devoted to Egypt.  As his title indicates, Worth also addresses the rise of ISIS to become what he terms the “great menace of a new age . . . capable of inspiring people as far away as France or even California to murder in the name of God” (p.231).

        Not least among the many virtues of Worth’s perspective upon the various iterations of the Arab Spring is that he does not seek to wrap them into a grandiose overall theory that would explain how the hopeful vision of 2011 unraveled. Although the early message of the Arab Spring now “appears to have been wholly reversed,” Worth writes, each country he treats “fell apart in its own way” (p.4).   Worth focuses on the indigenous forces that propelled the uprisings of 2011, rather than the “mostly secondary” (p.12) role of the United States and European powers. His book is not intended to be a comprehensive history of the Arab Spring but rather, as he puts it, a “much more selective effort to make sense of the fallout”(p.12). He argues that the Arab world had “never built a peaceful model for political succession” and that the pro-democracy activists of 2011 were “spectacularly unprepared for upheaval” (p.8).

      Worth’s perspective sustains its momentum through personal stories of  individuals who experienced the Arab Spring, in a manner reminiscent of Adam Hochschild’s account of the Spanish Civil War, Spain in Our Hearts, reviewed here last month. But unlike Hochschild, Worth portrays men and women he had met and worked with: his professional contacts, acquaintances and, in some cases, personal friends. Their stories humanize the regional upheaval, underscoring its complex and tragic character.

* * *

         Worth was present almost from the beginning of the January 2011 anti-Mubarak demonstrations on Cairo’s Tahrir Square, and he writes about them more as a participant than as a journalist observer. He recounts his experience through the eyes of Pierre Siaufi, a 49 year old, 300 pound “slacker and bohemian . . . a benevolent Arab version of Allen Ginsberg” (p.17-18). Siaufi turned his disheveled apartment near Tahrir Square into “ground zero,” the nerve center of the largely leaderless anti-Mubarak protests.  The demonstrators included groups and classes that had previously viewed one another with distrust: Facebook and social media savvy youth, middle class liberals and intellectuals, secularists, Christians and Muslims – including the long suppressed Muslim Brotherhood – even, Worth notes, street vendors from Cairo’s slums and some notorious soccer hooligans.

          For a short period, the unlikely grouping on Tahirir Square seemed almost impossibly united:

There was an emotion in the air that encompassed all of us, made us feel we’d shed our old skins and the past was irrelevant . . . [There was] a sudden shift in perspective, as if Earth had tilted on its axis, allowing you to miraculously see truths that had been hidden from you all along. The tyrant, once vast and august, was now revealed as a laughable old fool . . . Most of all, there was the passionate insistence that the revolution would triumph, that justice would replace injustice, that the country’s problems – its sectarian hatreds, its corruption, its terrorist gangs – were all artificial, trumped up, the cynical props of the old regime. All of it would fade away now that the people were empowered (p.19-20).

Yet Worth’s gut feeling was that this exuberance could not last. He summarizes in italics the views of those around him, which seem to be his own as well: “I know these things are not true. But perhaps, if we will them with enough conviction, they will come true someday” (p.20).

      Worth’s gut proved right. The heady moment on February 11, 2011, when Mubarak stepped aside, led to an Islamic ascendancy, resulting in the election and disastrous presidency of Muhammad Morsi.  Morsi represented Egypt’s infuriatingly complex Muslim Brotherhood, a “religious movement seeking democracy” but including a “more secretive element – with radical spin-offs – bent on implementing Islamic law” (p.132). Under Mubarak, the Brotherhood operated in a “legal shadowland” (p.132), subject to periodic mass arrests.

         After Mubarak’s resignation, the Brotherhood indicated that it would not proffer a candidate for president. But with unexpected success in parliamentary elections in late 2011, it reversed itself.  Morsi, a stubborn organization man with few political skills, was elected president in June 2012. Worth contrasts Morsi with Brotherhood member Muhammad Beltagy, a thoughtful medical doctor in Cairo’s slums, with skills at mediation and conciliation far exceeding those of Morsi.  Beltagy “always looked as if he’d been up all night negotiating a truce and emerged victorious at dawn” (p.128), Worth writes. He suggests that Beltagy might well have avoided the catastrophic consequences of the Morsi presidency had he been willing to serve.

          A decree which Morsi issued in November 2012, granting him broad powers above the courts as the “guardian of the revolution,” precipitated large scale protests and set the stage for the bloody military coup orchestrated by General Abdelfattah al Sisi that deposed Morsi in July 2013, with the support of many secularists and liberals who had previously joined with the Brotherhood in opposing Mubarak. Once in power, Sisi brutally suppressed pro-Islamist demonstrations and arrested most of the Brotherhood leadership.  Almost overnight, the Brotherhood went from the “summit of power to the status of a terrorist group” (p.167). Many Brotherhood members fled the country, with some joining ISIS to fight in Syria and Libya. Beltagy’s daughter was killed in one of the demonstrations and Beltagy found himself jailed and sentenced to death under the military regime.

        Worth places responsibility for the failure of Egypt’s democratically elected government squarely upon Morsi and his “pigheadedness” (p.152), which alienated even his own cabinet ministers.  When faced with organized opposition to his regime, Morsi “sounded as brittle and intransigent as any ancient regime tyrant. He blamed it all on a ‘fifth column’ and refused to give any ground. He wrapped himself in the flag just as Mubarak had, warning against hired thugs and saboteurs, never acknowledging the depth of the anger he had provoked” (p.147).

* * *

         By mid-2011, Tunisia, where the Arab Spring had begun, appeared to be heading in the same calamitous direction as Egypt. In the first parliamentary elections since the uprising, Ennahda, an Islamist party led by Rached Ghannouchi, won a plurality of seats. As in Egypt, the Islamist ascendancy in Tunisia caused alarm throughout the country. But Ghannouchi was the polar opposite of Egypt’s Morsi, a “philosopher-king” (p.207) within Tunisia’s Islamist movement who had lived abroad, spoke several languages, and was reluctant to demonize his political opponents.  In August 2013, Ghannouchi began meeting secretly in Paris with the primary opposition leader, Beji Caid Essebsi.

          Essebsi was Tunisia’s “ remaining elder statesman” (p.200), a rigorous secularist who had served as Interior Minister under Ben Ali’s predecessor, Tunisia’s post-World War II anti-colonialist leader Habib Bourguiba.  Worth provides an affecting fly-on-the-wall account of the discussions between Tunisia’s “two grand old men” (p.221) — Ghannouchi was then 72, Essebsi 86. Although from opposite ends of the social spectrum and opposite sides of Tunisia’s sectarian divide, Ghannouchi and Essebsi found common ground and a way forward. By September 2013, they agreed that Ennahda would cede power to a caretaker government, while a new constitution could be considered.

          In January 2014, Ennahada suffered major loses in parliamentary elections, with Essebsi’s secularist party winning a parliamentary majority. Essebsi was elected president and formed a coalition government with Ennahda. Two deadly terrorist attacks later in 2014 all but destroyed Tunisia’s critical tourist industry and threatened the coalition government, which bent but did not break. By mid-2015, the coalition government was “coalescing and planning reforms, albeit slowly. Most of the Islamists seemed to have come around to the belief in compromise and reconciliation. Leftists spoke optimistically about a working relationship with the people they’d once hoped to eradicate” (p.221).

          The legacy to be granted to Tunisia’s two grand old men, Ghannouchi and Essebsi, remains to be determined, Worth concludes: “The idea that they achieved a historic synthesis, a reweaving of the country’s Islamic and Western ancestries, is an appealing one. And in many ways, Tunisia did seem to have pulled back from the crater’s edge in mid-2015” (p.221). But, five years after Mohamed Bouazizi’s death had set the Arab Spring in motion, most Tunisians “still hoped that their small country could be a model, spreading its dream of reconciliation across a region troubled by war and tyranny. They also knew the same winds could blow in reverse and smash everything they had built” (p.221).

* * *

            Protests against Yemen’s leader, Ali Abdullah Saleh, began in the summer of 2010, but gained momentum after the events in Tunisia and Egypt in the winter of 2011.  Saleh was a ruler who, as Worth puts it, brought corruption and manipulation to a “whole new level of cynicism and mastery” (p.98). In the Arab world’s poorest country, he managed to “rake off tens of billions of dollars in public funds for himself and his family” (p.98), becoming richer than Hosni Mubarak. Elevating blackmail into a “tool of the state,” Saleh’s greatest talent was for “corrupting other people . . . He made sure that every potential opponent had dirty money or blood on his hands, or both” (p.98-99).

         By June 2011, anti-Saleh rebels had captured large portions of the country. When Saleh himself was injured in a bombing at a mosque, he fled to Saudi Arabia for treatment, leaving the country rudderless.  In November, he officially resigned his office in exchange for a diplomatically brokered agreement providing him with immunity from prosecution. But the agreement failed to end the fighting among tribal factions. Tribal warfare, “widely viewed as a proxy war between Saudi Arabia and Iran” (p.240), continues to this day. Worth tells the story of Yemen through the eyes of Saeed, a grizzled and battered activist who had been fighting the Yemeni regime for four decades and provides the book’s best single line quotation. “I don’t want an Islamic state, I don’t want a Socialist state, I don’t want a one-party state,” Saeed said. “I just want a modern state” — which Worth defines as a “state where citizenship meant something, where the rule of law was respected” (p.100).  Yemen is not there yet.

* * *

            Protests against Muammar Qaddafi in Libya began on February 15, 2011, four days after Mubarak’s fall. The protestors were “met with truncheons, and then with bullets; they picked up weapons almost at once” (p.38-39). Within days, the rebels had driven Qaddafi’s forces out and laid claim to almost half the country. By August 2011, Qaddafi was forced to flee Tripoli. He was captured and killed in October 2011. In a country where clan solidarity and the tradition of blood feuds run deep, Qaddafi left his countrymen with a void: “no army, no police, no unions, nothing to bring them together” (p.38).  ISIS filled part of the void, founding a mini-state in portions of the country, amidst a civil war between competing militias that Worth describes as “so fragmented and mercurial that it defied all efforts to distill a larger meaning” (p.226-27). Libya had become an “archipelago of feuding warlords” (p.38).

* * *

          With Saleh’s resignation and Quaddafi’s death, Syria’s Bashar Assad was — and remains to this day — the last tyrant still standing, with a shaky hold on power amidst a civil war that has destroyed his country and produced one of the 21st century’s most severe humanitarian crisis.  Anti-Assad demonstrations in Syria began after both Mubarak in Egypt and Ben Ali in Tunisia had been forced out of office, but was triggered by police mistreatment of teenagers arrested in the southern Syrian town of Daraa for writing antigovernment graffiti. Assad determined early on that he would not go down as easily as his Egyptian and Tunisian counterparts.

       Worth presents the sectarian underpinnings to Syria’s civil war through the pairing of two bright women, both in their 20s from opposite sides of the country’s sectarian divide: Naura Kanafani, a Sunni Muslim; and her long-time best friend Aliaa Ali, an Alawite, an offshoot of Shiite Islam, and supporter of fellow Alawite Assad.  Syria’s Sunni Muslim majority, approximately 70% of its population, looks down on the impoverished Alawais as heretics and crude mountain people, Worth explains. But Assad’s father, Alawi military officer Hafez al Assad, became Syria’s autocrat-in-charge in 1971. When Hafez died in 2000, his son Bashar, described by Worth as “tall and angular. . . with a birdlike watchfulness and an elongated neck and head that made him look as if he’d been painted by El Greco” (p.67), succeeded him.

          Bashar responded to the March 2011 protests by unleashing his “foot soldiers,” essentially Alawi thugs from the mountains, to counter the protesters. By the end of 2011, forces loyal to Assad were “using tanks and fighter jets to pound whole neighborhoods to rubble. . . [They were] massacring Sunni civilians in the their homes and leaving scrawled sectarian slogans on the doors” (p.68). Best friends Naura and Aliaa, for whom religious differences had previously been irrelevant, began to see the same events differently. Naura was aghast that the regime appeared to be killing innocent people wantonly, while Aliaa attributed such reports to “fake news.” Little by little, Naura and Aliaa began to define each other as the enemy. Their prior friendship “belonged to a world that no longer made sense” (p.95).

          Throughout 2012, the Syrian conflict “spun outward. . . drawing in almost every country in the region and many beyond it” (p.86). The Lebanese terrorist group Hezbollah and Shiite Iran supported Assad, with Russian backing. ISIS came into its own in Syria fighting Assad, and seized control of substantial portions of Syrian territory. Western-backed factions also fought Assad, finding themselves uncomfortably on the same side as ISIS. The first wave of anti-Assad rebels, the “urban young men and women who spoke of democracy,” gave way to “legions of young zealots who slipped across the border with holy war and martyrdom and on their minds” (p.80). These zealous migrants, including eager volunteers for suicide missions, helped ISIS become what Worth terms the “most powerful jihadi group in history” (p.175).

      In mid-2013, Worth returned to Syria, where he had previously spent considerable time and nurtured numerous contacts.  This time he barely recognized the country. “Half the country was behind rebel lines, in a zone where Western hostages were bought and sold and beheaded. Most of my Syrian friends had fled and were living in Europe or Beirut or Dubai” (p.87). By the end of 2014, the death toll in Syria exceeded 200,000, with huge waves of migration out of Syria, making their way through Turkey on “rickety boats to Greece and onward to Macedonia, Serbia, Hungary, Austria, and Germany” (p.230). As a Sunni Muslim, Naura Kanafani was among the hundreds of thousands forced to flee Syria, escaping into Turkey on foot with her mother.

* * *

         Readers convinced that democracy cannot take hold and flourish in the Arab world – or in the Middle East, or in Muslim-majority countries – will have to dig deeply into Worth’s book to find support for their convictions, and they are unlikely to come up with much.  Despite the dashed expectations of 2011, Worth’s dispiriting yet riveting account leaves his readers thinking – or maybe just hoping – that the yearning expressed by his Yemeni contact Saaed for a modern state is unlikely to recede across the Middle East.

Thomas H. Peebles

Aubais, France

September 26, 2017

 

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Filed under History, Middle Eastern History

Do Something

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Zachary Kaufman, United States Law and Policy on Transitional Justice:

Principles, Politics, and Pragmatics 

             The term “transitional justice” is applied most frequently to “post conflict” situations, where a nation state or region is emerging from some type of war or violent conflict that has given rise to genocide, war crimes, or crimes against humanity — each now a recognized concept under international law, with “mass atrocities” being a common shorthand used to embrace these and related concepts. In United States Law and Policy on Transitional Justice: Principles, Politics, and Pragmatics, Zachary Kaufman, a Senior Fellow and expert on human rights at Harvard University’s Kennedy School of Government, explores the circumstances which have led the United States to support that portion of the transitional justice process that determines how to deal with suspected perpetrators of mass atrocities, and why it chooses a particular means of support (disclosure: Kaufman and I worked together in the US Department of Justice’s overseas assistance unit between 2000 and 2002, although we had different portfolios: Kaufman’s involved Africa and the Middle East, while I handled Central and Eastern Europe).

          Kaufman’s book, adapted from his Oxford University PhD dissertation, centers around case studies of the United States’ role in four major transitional justice situations: Germany and Japan after World War II, and ex-Yugoslavia and Rwanda in the 1990s, after the end of the Cold War. It also looks more briefly at two secondary cases, the 1988 bombing of Pan American flight 103, attributed to Libyan nationals, and atrocities committed during Iraq’s 1990-91 occupation of Kuwait. Making extensive use of internal US government documents, many of which have been declassified, Kaufman digs deeply into the thought processes that informed the United States’ decisions on transnational justice in these six post-conflict situations. Kaufman brings a social science perspective to his work, attempting to tease of out of the case studies general rules about how the United States might act in future transitional justice situations.

          The term “transitional justice” implicitly affirms that a permanent and independent national justice system can and should be created or restored in the post-conflict state.  Kaufman notes at one point that dealing with suspected perpetrators of mass atrocities is just one of several critical tasks involved in creating or restoring a permanent national justice system in a post-conflict state.  Others can include: building or rebuilding sustainable judicial institutions, strengthening the post-conflict state’s legislation, improving capacity of its justice-sector personnel, and creating or upgrading the physical infrastructure needed for a functioning justice system. These latter tasks are not the focus of Kaufman’s work. Moreover, in determining how to deal with alleged perpetrators of mass atrocities, Kaufman’s focus is on the front end of the process: how and why the United States determined to support this portion of the process generally and why it chose particular mechanisms rather than others.   The outcomes that the mechanisms produce, although mentioned briefly, are not his focus either.

          In each of the four primary cases, the United States joined other nations to prosecuted those accused or suspected of involvement in mass atrocities before an international criminal tribunal, which Kaufman characterizes as the “most significant type of transitional justice institution” (p.12). Prosecution before an international tribunal, he notes, can promote stability, the rule of law and accountability, and can serve as a deterrent to future atrocities. But the process can be both slow and expensive, with significant political and legal risks. Kaufman’s work provides a useful reminder that prosecution by an international tribunal is far from the only option available to deal with alleged perpetrators of mass atrocities. Others include trials in other jurisdictions, including those of the post-conflict state, and several non-judicial alternatives: amnesty for those suspected of committing mass atrocities, with or without conditions; “lustration,” where suspected persons are disenfranchised from specific aspects of civic life (e.g., declared ineligible for the civil service or the military); and “doing nothing,” which Kaufman considers tantamount to unconditional amnesty.  Finally, there is the option of summary execution or other punishment, without benefit of trial. These options can be applied in combination, e.g., amnesty for some, trial for others.

         Kaufman weighs two models, “legalism” and “prudentialism,” as potential explanations for why and how the United States acted in the cases under study and is likely to act in the future.  Legalism contends that prosecution before an international tribunal of individuals suspected or accused of mass atrocities  is the only option a liberal democratic state may elect, consistent with its adherence to the rule of law.  In limited cases, amnesty or lustrations may be justified as a supplement to initiating cases before a tribunal. Summary execution may never be justified. Prudentialism is more ad hoc and flexible,with  the question whether to establish or invoke an international criminal tribunal or pursue other options determined by any number of different political, pragmatic and normative considerations, including such geo-political factors as promotion of stability in the post-conflict state and region, the determining state or states’ own national security interests, and the relationships between determining states. Almost by definition, legalism precludes consideration of these factors.

          Kaufman presents his cases in a highly systematic manner, with tight overall organization. An introduction and three initial chapters set forth the conceptual framework for the subsequent case studies, addressing matters like methodology and definitional parameters.  The four major cases are then treated in four separate chapters, each with its own introduction and conclusion, followed by an overall conclusion, also with its own introduction and conclusion (the two secondary cases, Libya and Iraq are treated within the chapter on ex-Yugoslavia).  Substantive headings throughout each chapter make his arguments easy to follow.   General readers may find jarring his extensive use of acronyms throughout the text, drawn from a three-page list contained at the outset. But amidst Kaufman’s deeply analytical exploration of the thinking that lay behind the United States’ actions, readers will appreciate his decidedly non-sociological hypothesis as to why the United States elects to engage in  the transitional justice process: a deeply felt American need in the wake of mass atrocities to “do something” (always in quotation marks).

* * *

          Kaufman begins his case studies with the best-known example of transitional justice, Nazi Germany after World War II. The United States supported creation of what has come to be known as the Nuremberg War Crimes tribunal, a military court administered by the four victorious allies, the United States, Soviet Union, Great Britain and France. The Nuremberg story is so well known, thanks in part to “Judgment at Nuremberg,” the best-selling book and popular film, that most readers will assume that the multi-lateral Nuremberg trials were the only option seriously under consideration at the time. To the contrary, Kaufman demonstrates that such trials were far from the only option on the table.

        For a while the United States seriously considered summary executions of accused Nazi leaders. British Prime Minister Winston Churchill pushed this option during wartime deliberations and, Kaufman indicates, President Roosevelt seemed at times on the cusp of agreeing to it. Equally surprisingly, Soviet Union leader Joseph Stalin lobbied early and hard for a trial process rather than summary executions. The Nuremberg Tribunal “might not have been created without Stalin’s early, constant, and forceful lobbying” (p.89), Kaufman contends.  Roosevelt abandoned his preference for summary executions after economic aspects of the Morgenthau Plan, which involved the “pastoralization” of Germany, were leaked to the press. When the American public “expressed its outrage at treating Germany so harshly through a form of economic sanctions,” Roosevelt concluded that Americans would be “unsupportive of severe treatment for the Germans through summary execution” (p.85).

          But the United States’ support for war crimes trials became unwavering only after Roosevelt died in April 1945 and Harry S. Truman assumed the presidency.  The details and mechanics of a multi-lateral trial process were not worked out until early August 1945 in the “London Agreement,” after Churchill had been voted out of office and Labor Prime Minister Clement Atlee represented Britain. Trials against 22 high level Nazi officials began in November 1945, with verdicts rendered in October 1946: twelve defendants were sentenced to death, seven drew prison sentences, and three were acquitted.

       Many lower level Nazi officials were tried in unilateral prosecutions by one of the allied powers.   Lustration, barring active Nazi party members from major public and private positions, was applied in the US, British, and Soviet sectors.  Numerous high level Nazi officials were allowed to emigrate to the United States to assist in Cold War endeavors, which Kaufman characterizes as a “conditional amnesty” (Nazi war criminals who emigrated to the United States is the subject of Eric Lichtblau’s The Nazis Next Door: How America Became a Safe Haven for Hitler’s Men, reviewed here in October 2015; Frederick Taylor’s Exorcising Hitler: The Occupation and Denazification of Germany, reviewed here in December 2012, addresses more generally the manner in which the Allies dealt with lower level Nazi officials). By 1949, the Cold War between the Soviet Union and the West undermined the allies’ appetite for prosecution, with the Korean War completing the process of diverting the world’s attention away from Nazi war criminals.

          The story behind creation of the International Military Tribunal for the Far East, designed to hold accountable accused Japanese perpetrators of mass atrocities, is far less known than that of Nuremberg, Kaufman observes.  What has come to be known as the “Tokyo Tribunal” largely followed the Nuremberg model, with some modifications. Even though 11 allies were involved, the United States was closer to the sole decision-maker on the options to pursue in Japan than it had been in Germany. As the lead occupier of post-war Japan, the United States had “no choice but to ‘do something’” (p.119).   Only the United States had both the means and will to oversee the post-conflict occupation and administration of Japan. That oversight authority was vested largely in a single individual, General Douglas MacArthur, Supreme Commander of the Allied forces, whose extraordinarily broad – nearly dictatorial — authority in post World War II Japan extended to the transitional justice process. MacArthur approved appointments to the tribunal, signed off on its indictments, and exercised review authority over its decisions.

            In the interest of securing the stability of post-war Japan, the United States accorded unconditional amnesty to Japan’s Emperor Hirohito. The Tokyo Tribunal indicted twenty-eight high-level Japanese officials, but more than fifty were not indicted, and thus also benefited from an unconditional amnesty. This included many suspected of “direct involvement in some of the most horrific crimes of WWII” (p.108), several of whom eventually returned to Japanese politics. Through lustration, more than 200,000 Japanese were removed or barred from public office, either permanently or temporarily.  As in Germany, by the late 1940s the emerging Cold War with the Soviet Union had chilled the United States’ enthusiasm for prosecuting Japanese suspected of war crimes.

           The next major United States engagements in transitional justice arose in the 1990s, when the former Yugoslavia collapsed and the country lapsed into a spasm of ethnic violence; and massive ethnic-based genocide erupted in Rwanda in 1994. By this time, the Soviet Union had itself collapsed and the Cold War was over. In both instances, heavy United States’ involvement in the post-conflict process was attributed in part to a sense of remorse for its lack of involvement in the conflicts themselves and its failure to halt the ethnic violence, resulting in a need to “do something.”  Rwanda marks the only instance among the four primary cases where mass atrocities arose out of an internal conflict.

       The ethnic conflicts in Yugoslavia led to the creation of the International Criminal Tribunal for Yugoslavia (ICTY), based in The Hague and administered under the auspices of the United Nations Security Council. Kaufman provides much useful insight into the thinking behind the United States’ support for the creation of the court and the decision to base it in The Hague as an authorized Security Council institution. His documentation shows that United States officials consistently invoked the Nuremberg experience. The United States supported a multi-lateral tribunal through the Security Council because the council could “obligate all states to honor its mandates, which would be critical to the tribunal’s success” (p.157). The United States saw the ICTY as critical in laying a foundation for regional peace and facilitating reconciliation among competing factions. But it also supported the ICTY and took a lead role in its design to “prevent it from becoming a permanent [tribunal] with global reach” (p.158), which it deemed “potentially problematic” (p.157).

             The United States’ willingness to involve itself in the post-conflict transitional process in Rwanda,   even more than in the ex-Yugoslavia, may be attributed to its failure to intervene during the worst moments of the genocide itself.  That the United States “did not send troops or other assistance to Rwanda perversely may have increased the likelihood of involvement in the immediate aftermath,” Kaufman writes. A “desire to compensate for its foreign policy failures in Rwanda, if not also feelings of guilt over not intervening, apparently motivated at least some [US] officials to support a transitional justice institution for Rwanda” (p.197).

        Once the Rwandan civil war subsided, there was a strong consensus within the international community that some kind of international tribunal was needed to impose accountability upon the most egregious génocidaires; that any such tribunal should operate under the auspices of the United Nations Security Council; that the tribunal should in some sense be modeled after the ICTY; and that the United States shouldtake the lead in establishing the tribunal. The ICTY precedent prompted US officials to “consider carefully the consistency with which they applied transitional justice solutions in different regions; they wanted the international community to view [the US] as treating Africans similarly to Europeans” (p.182). According to these officials, after the precedent of proactive United States involvement in the “arguably less egregious Balkans crisis,” the United States would have found it “politically difficult to justify inaction in post-genocide Rwanda” (p.182).

           The United States favored a tribunal modeled after and structurally similar to the ICTY, which came to be known as International Criminal Tribunal for Rwanda (ICTR). The ICTR was the first international court having competence to “prosecute and punish individuals for egregious crimes committed during an internal conflict” (p.174), a watershed development in international law and transitional justice.  To deal with lower level génocidaires, the Rwandan government and the international community later instituted additional prosecutorial measures, including prosecutions by Rwandan domestic courts and local domestic councils, termed gacaca.

          No international tribunals were created in the two secondary cases, Libya after the 1998 Pan Am flight 103 bombing, and the 1990-91 Iraqi invasion of Kuwait. At the time of the Pam Am bombing, several years prior to the September 11, 2001 attacks, United States officials considered terrorism a matter to be addressed “exclusively in domestic contexts” (p.156).  In the case of the bombing of Pan Am 103, where Americans had been killed, competent courts were available in the United States and the United Kingdom. There were numerous documented cases of Iraqi atrocities against Kuwaiti civilians committed during Iraq’s 1990-91 invasion of Kuwait.  But the 1991 Gulf War, while driving Iraq out of Kuwait, otherwise left Iraqi leader Saddam Hussein in power. The United States was therefore not in a position to impose accountability upon Iraqis for atrocities committed in Kuwait, as it had done after defeating Germany and Japan in World War II.

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         In evaluating the prudentialism and legalism models as ways to explain the United States’ actions in the four primary cases, prudentialism emerges as a clear winner.  Kaufman convincingly demonstrates that the United States in each was open to multiple options and motivated by geo-political and other non-legal considerations.  Indeed, it is difficult to imagine that the United States – or any other state for that matter — would ever, in advance, agree to disregard such considerations, as the legalism model seems to demand. After reflecting upon Kaufman’s analysis, I concluded that legalism might best be understood as more aspirational than empirical, a forward-looking, prescriptive model as to how the United States should act in future transitional justice situations, favored in particular by human rights organizations.

         But Kaufman also shows that the United States’ approach in each of the four cases was not entirely an ad hoc weighing of geo-political and related considerations.  Critical to his analysis are the threads which link the four cases, what he terms “path dependency,” whereby the Nuremberg trial process for Nazi war criminals served as a powerful influence upon the process set up for their Japanese counterparts; the combined Nuremberg-Tokyo experience weighed heavily in the creation of ICTY; and ICTY strongly influenced the structure and procedure of ICTR.   This cumulative experience constitutes another factor in explaining why the United States in the end opted for international criminal tribunals in each of the four cases.

         If a general rule can be extracted from Kaufman’s four primary cases, it might therefore be that an international criminal tribunal has evolved into the “default option” for the United States in transitional justice situations,  showing the strong pull of the only option which the legalism model considers consistent with the rule of law.  But these precedents may exert less hold on US policy makers going forward, as an incoming administration reconsiders the United States’ role in the 21st century global order. Or, to use Kaufman’s apt phrase, there may be less need felt for the United States to “do something” in the wake of future mass atrocities.

Thomas H. Peebles

Venice, Italy

February 10, 2017

 

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Filed under American Politics, United States History

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).

* * *

     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

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Filed under American Politics, Politics, Rule of Law