Trump Fascist Part VII: Dystopia and Utopia

Trump Fascist Part VII: Dystopia and Utopia

by

Howard Adelman

I have not spent full blogs on many of the basic philosophic premises of fascism and instead have included them as minor keys within a larger discussion of one principle, such as the reference to the breakdown between the public and the private within the discussion of chaos, democracy and fascism. However, there are two remaining themes that I want to discuss at some length in this blog, the dystopian view of the existing world and the utopian portrait of a nostalgic as well as future world characteristic of fascism.

As was widely noted when Donald Trump delivered his acceptance speech after he won the nomination at the Republican Convention, in contrast to Barack Obama’s stress on hope and the typical stress on optimism characterizing presidential hopefuls, DT painted a very bleak picture of both the state of the nation and the world.  In a dystopia, people live dehumanized and fearful lives. Of course, it is an imaginary world conforming very little to reality, but all the more powerful because of that.

DT’s portrait of the state of the nation was cast in terms of murder and mayhem, moving towards financial ruin because of unfair trade deals and an invasion by immigrants and refugees. More recently, he insisted he won New Hampshire – he did not; he won the primary – because it is a drug-infested den.

The general explanation is that he was tapping into widespread anger and fear among white working-class men. However, in listening to interviews in the states that he won and among individuals who voted for him, I heard no expressions of fear, except in the abstract – that is, if something is not done, the U.S. is headed to hell in a basket. I heard very little anger. His supporters were calm and determined to have a candidate that reflected themselves and only fearful that DT and the Republican-led Congress would not deliver. Thus, the irony. They voted for the candidate who held the most jaundiced view of America than anyone had ever expressed on the campaign trail while they most deeply wanted to preserve the status quo where they lived in the American heartland.

The dystopic text for comprehending the regime is not George Orwell’s 1984 but Aldous Huxley’s Brave New World. In that dystopic novel, order is not maintained by Big Brother watching your every move and thought, but by an amusement and entertainment absorption resulting in “blissed-out and vacant servitude.” (Christopher Hitchens) However, we live in an age of celebrity politics. DT as a candidate won power on a platform of “draining the swamp” by appointing billionaires, extras from Goldman Sachs and generals. In ignoring this and many other blatant contradictions, those who voted for DT were not “blissed out” by an absorption in amusement and entertainment, but rather in soap box melodrama both before and after the election. Aldous Huxley was right about distraction, but wrong about the vehicle. For the latter, as it turns out, is even more effective in burying facts and analysis in weepy clichés rather than sensual distractions.

In 1935, the great muckraking novelist, Sinclair Lewis wrote It Can’t Happen Here, warning about the immanent possibility of fascism in America. As Brian Bethune wrote in an essay in Macleans in January, “A dystopian reading list for the Donald Trump era,” the political style of the president was to sneer at “tact” and “courtesy.” Civility was not to be a hallmark of such an administration. Rather, a self-advertising and self-promoting hero defines himself as the only one who can make America great again in a fictitious America where citizens hide away fearful of marauding hordes of migrants.

The irony – one among many – is that this promoter of chaos mentioned “law and order’ four times in accepting the role of presidential candidate for the Republican Party. Further, his first TV ad in black and white at the beginning of the year, when he sought the nomination, included images of the two accused San Bernardino shooters, missiles, a body on a stretcher, bombs dropping on buildings. In this hellscape of riots that bore little resemblance to the then current reality in America, DT painted a portrait of the American nightmare rather than the American dream, the reference point for almost all American politicians running for high office.

This did not mean that his platform, his program and his performance lacked a utopian dimension. Quite the reverse. It was integral to his appeal.  DT views America as a once great nation (assuming, of course, that his words approximate his deep beliefs – a big assumption in itself) that is currently beset by a myriad of problems resulting from the U.S. being exploited and used by the rest of the world. He campaigned on a vision: “Make America Great Again.” Not only has the world taken advantage of America, but the elites have betrayed their own country.

Of course, the dystopic and utopian sides of his coin of the realm are at one and the same time a distorted picture of America’s problems and wrongheaded view of the solutions to the real problems of the country. DT promised to bring the coal industry back to life and restore the well-paying jobs in the industry. He is averse to involvements in foreign wars, but has been unable to forge an effective military doctrine to extract the U.S. from Afghanistan.

However, he has delivered his promises to the business world as he wages war on regulations. He promised to produce jobs and reduce unemployment and so far the economy has sizzled even higher than under Obama so that the U.S. is at the lowest record of unemployment in sixteen years – 4.3%. The unemployment rate was even lower in 19 of America’s fifty states, ironically mostly in states that voted for Hillary Clinton. Within the vision of this schizophrenic dystopian president one finds a utopian vision of America with full employment, high paying jobs, job security and thriving businesses operating in a country free from foreign wars, a reduced influx of “unwanted” migrants and increased domestic freedom from both regulations and taxes.

However, DT is a particularly odd type of saviour. For he has never been interested in creating a new world order. Nor even a new national order. His slogan is not. “Make America great,” but “Make America great again.” His utopia hearkens back to the vision America projected of itself when DT was a boy in the fifties, when the image was there, but not the reality of widespread discrimination, of the Korean and later Vietnam War. For DT, the strains and stresses of domestic strife in the U.S. began the long decline. D.T.’s utopian vision is a backward gaze immersed in nostalgia and mindblindness.

Linking the dystopian and utopian vision is the projection of himself as a doer, as a man of action, as a leader who signs executive order after executive, order, many, if not most, without reflection, vetting or input even by his own party or even cabinet. But if he emerges as disastrous on domestic policy requiring legislation (repeal and replace Obamacare), his record is even more disastrous when it comes to foreign policy. The Philippines has been allowed to fall into the Chinese sphere of influence. He is determined to destroy the Iranian nuclear agreement even as his officials certify that Iran has kept to its terms, even as his rants have undermined the relatively moderate leadership of Hassan Rouhani and even though his views are contradicted by his Secretary of State, Rex Tillerson. DT also spoke of supporting NATO in contradistinction to DT who wallows in belittling the alliance, wearing on the nerves of his allies. His one foreign policy success, getting through the UN Security Council a unanimous vote, resolution 2371, in support of severest sanctions ever against North Korea, but even that success might be highly overrated if China does not follow through with strict compliance on the boycott of North Korea.

However, even the North Korean UN victory cannot be attributed in any way to Donald Trump, but to the twin wrestling team of Rex Tillerson and Nikki Haley, his ambassador to the UN. For unlike their boss, they take the importance of the UN, and particularly the Security Council, seriously. They both emphasize the importance of diplomacy, though Nikki is more likely to wave the big stick. Rex Tillerson stresses clarity. “We do not seek a regime change; we do not seek the collapse of the regime; we do not seek an accelerated reunification of the peninsula; we do not seek an excuse to send our military north of the 38th parallel.”

The sanctions passed will slash North Korea’s revenues from coal, iron, iron ore, lead, lead ore and seafood by one billion dollars, a full one-third of its foreign currency earnings. The victory is also noteworthy because it relied on subtle diplomacy rather than shifts between rants and insults versus excessive praise and flattery. We can only watch to see if China, and, to a lesser extent, Russia really comply with the sanctions resolution.

Utopian/dystopian frameworks for politics lead to mindblindness to the actual problems nations face and the realistic alternatives for resolving them. The split undercuts rational analysis and detailed empirical research. Most importantly, it feeds the politics of centering attention on a leader who sees and projects a reality that is overwhelmingly a product of his own mind. As such, it reinforces an attachment between that leader and followers caught up in a similar or identical imaginative worldview.

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A Corrupt History of Israel – Beginnings

A Corrupt History of Israel – Beginnings

by

Howard Adelman

Gregory Baum began chapter 20 of his memoir, The Oil Has Not Run Dry: The Story of My Theological Pathway, with the following: “After the Holocaust, Christian churches were prompted by their historical guilt for the contempt they have shown to Jews and Judaism to support the State of Israel and to refrain from criticizing its treatment of Palestinians. After the Second World War, yet a second historical guilt, their approval of the colonial conquests of the European empires, moved the churches to offer moral support to the anti-colonial struggles of peoples in Asia and Africa, eventually including the Palestinian people. The churches then affirmed their twofold solidarity, with the Jewish State and with the Palestinian people.” (149)

Ignoring the historical conflation of decades of history, immediately after WWII, did the churches express guilt over the Holocaust? Did that lead those churches to support the creation of the State of Israel? Did they refrain from criticizing the treatment of Palestinians then because of this guilt? I can only refer to this last question very tangentially. I will have to ignore the question of whether the churches felt guilty about colonialism at that time.

The theology in the declaration could not have bothered them because the declaration is notably devoid of any theological references. The Torah is significantly not cited to support the declaration of independence. Rather, the following foundational elements are cited:

  • The land of Israel was the birthplace of the Jewish people
  • That land shaped their spiritual, religious and political identity
  • On that land, Jews first enjoyed statehood
  • On that land, Jews developed their national cultural values
  • From that land, Jews contributed to world civilization both universal values and, more specifically, the Bible
  • When dispersed, Jews never lost faith in the quest for return over two millennia
  • Further, over those years, Jews not only prayed for return but strove in every generation to re-establish themselves in their ancient homeland
  • More recently, tens of, hundreds of thousands did return and the population of Jews had reached 600,000
  • In that return, they made deserts bloom and created a vibrant community
  • In that return, they revived the Hebrew language

The declaration then went on to detail both its practical and ethical aspirations: financial independence, cultural enrichment, peace, justice, self-defence, progress. Did the churches in general, whether driven by guilt over the Holocaust or not, celebrate the revival of statehood for Jews or even one or more of the accomplishments of the revived Yishuv? Did they express their strong opposition to the plans and moves of the Arab armies to invade the nascent state the very next day? Did they acknowledge the legal right to establish a Jewish state by the United Nations that had taken back Mandatory Palestine from the British, who had served as a trustee? Did they support partition and the creation of an independent Jewish state? More specifically, ignoring some of the hyperbole and exaggerations in the Declaration, was there any reference to guilt over the Holocaust, the European catastrophe in which six million Jews were massacred, as motivating any possible support? In the light of this unprecedented event, did the churches by and large support the natural right of the Jewish people “to be masters of their own fate, like all other nations, in their own sovereign state” even if many nations did not then enjoy such a right?

It took the Catholic Church twenty years afterwards to even repudiate antisemitism in Nostra Aetate. But even then, the official Churches and even the major dissidents remained silent concerning the right of Jews to have their own state – a silence that was only confronted just before the Cold War ended. In its 1985 Notes on the Correct Way to Present the Jews and Judaism in Preaching and Catechesis in the Roman Catholic Church (1985), the Vatican Commission for Religious Relations distinguished between theological and political considerations. Christians, they advised, should understand the deep religious significance of the land of Israel to Jews and Judaism. Though international law was increasingly used to challenge Israel’s occupation of majoritarian Arab areas after 1967, the principles of international law (later cited as the basis for dealing with the occupation) as distinct from religious attachments, were not used to acknowledge the right of creation of a Jewish state. Certainly, the birth of Judaism in Israel many centuries ago conferred no right. Neither did the development of their ancient nation-state, the continuing attachment of Jews to the land when they were dispersed, or the miracles of their return, revival of the Hebrew language and initial economic development suggested as justifications.

The church had its own political interests and it objected to either a Jewish or a Palestinian monopoly over Jerusalem. Winning this point was a trade off by some Catholic countries that was used to push UNSCOP, the United Nations Special Committee on Palestine, to recommend that Jerusalem remain an international city independent of both an Arab and a Jewish state with rights established for all three religions. Rather than guilt propelling the Catholic Church to support the nascent Jewish state, the Church was intimately involved in the messy business of politics in a flawed and failed effort to retain a strong political foothold in Jerusalem, a political foothold lost many centuries earlier when the Crusaders were defeated after an occupancy of two centuries.

It also took the Protestant churches decades after the state was declared to recognize both the importance of the land of Israel for Jews as well as the principle that Jews were entitled to self-determination. For the first time in 1980, the Rhineland-Synod stated that, “the continuing existence of the Jewish people, its return to the promised land, and the establishment of the state of Israel are a sign of God’s faithfulness to his people.” Theology, not guilt, seemed to provide both the rationale and the motive.

Did those Zionists who issued that Declaration of Independence even appeal to guilt over the Holocaust as a reason to support Israel? Not at all. The Shoah is mentioned to show why it was urgent to take action concerning the 250,000 refugees left as a residue of that catastrophe and the plan to solve the problem of Jewish homelessness by opening the gates of Israel wide to Jews needing as well as wanting to immigrate. The problem of the homeless refugees that no country then wanted motivated some Churches to support the State of Israel.

By the end of the century, the Evangelical Church in Germany conceded supporting the State of Israel with “just borders,” but the context suggests that even this belated statement was not heart-felt, but was offered to balance the Church’s concern with Palestinian refugees. However, we are here concerned with the late forties and not the post-1967 period so it might be helpful to look, not at official church doctrine and proclamations, but at Protestant dissident theologians who led the movement of reconciliation between Christianity and the Jewish community. To that end, to end this blog, I will summarily examine the views of Martin Niemöller and Karl Barth.

Whatever the many versions, Martin Niemöller became most famous for the following famous poem that he wrote:

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

In some versions, incurables and Jehovah Witnesses were included alongside Jews. The general interpretation is that it is incumbent upon us all to defend those whose rights are initially attacked because, eventually, I too will find myself a victim of an oppressive regime. Unwillingness to take risks was not an excuse.

However, there is a more cynical interpretation, not based on Niemöller’s intent but on his behaviour, namely always ensure that the minority group next to you (Jews) is protected because otherwise you will be next. This black humour was suggested by Niemöller’s own history as a dissident in Nazi Germany who spent seven years in a concentration camp under a protective detention order which permitted his access to books and writing material, a period in which he requested release to serve in the German navy.

Niemöller was sent there, not because he defended socialism – he was a supporter of national socialism, voted for Hitler in 1933 and initially enthusiastically supported the Nazis coming to power,– not because he defended trade unionism, because he initially supported the Nazi coup and the destruction of the trade unions for he had always criticized Weimar Germany for its softness on communism, and not even because he opposed the Nazi persecution of the Jews, for he only opposed that persecution when it came to Jews baptised by the Lutheran Church. As he himself wrote in 1933 when he organized the pastors’ emergency federation (Pfarrernotbund), which became the foundation of the Confessional Church that stood in opposition to the official church when in 1934 it endorsed Nazi racist persecution of Jews, the fourth point in the founding charter objected to the Nazi ousting of ministers as ministers when they weere of Jewish lineage (Judenstämmlinge). Antisemitism became objectionable only when it was racial and affected the principle of baptism and conversion. Throughout the thirties, Niemöller continued to insist that Jews were guilty of killing Jesus and, without subjecting themselves to baptism, were deservedly being punished.

When he was released from prison after the war to eventually become president of the Hessen-Nasau Lutheran Church in 1947 and an extremely popular preacher in America, his revised theology was then stated most clearly in the Stuttgart Confession of Guilt (Stuttgarter Schuldbekenntnis) published months after his release. Did he express any guilt about the Shoah? Did he express any support for Zionism as an expression of the right of the Jewish people to self-determination? No. The collective guilt for which he insisted Germans accept collective responsibility was for the destruction in Europe generally and Germany more specifically. His criticisms of Nazi Germany remained restricted to the objections to interference in Church affairs. He insisted that he, and most Germans, were NOT guilty about the Shoah since he along with most Germans were ignorant of the scale of the atrocities and shocked by the event. Because of that ignorance, Germans had no cause to feel guilty about the Shoah.

Niemöller in his speeches around the United States made no reference to the Shoah, made no reference to any support for the creation of the State of Israel that I could find, but rather highlighted the resistance by the Confessing Church, a minority of Lutherans, to the Nazis. That resistance was based on his insistence on the absolute sovereignty of Christ as the backbone of the Confessing Church to which he had given witness. Non-converted Jews could be murdered, but “the Word of God can’t be bound and can’t be murdered.” His emphasis was on Christian brotherhood and not reconciliation between Christianity and Judaism.

These observations are not new. Eleanor Roosevelt made them at the time. Rabbi Abba Hillel Silver of The Temple in Cleveland, Ohio did so as well. Silver criticized Niemöller because he had not opposed Nazi racism, only Nazi persecution of the church. Rabbi Stephen Wise, president of the American Jewish Congress at the time, noted that Niemöller never once objected to the Shoah let alone felt any remorse or guilt for what had taken place. And Niemöller was a dissident.

Karl Barth, another founder of the Confessing Church, and acknowledged as one of the most significant pioneers in attempting to reconcile Christian theology with Jewish beliefs, is another matter. In Stephen Hayes book, Prospects for Post-Holocaust Theology (1991) he claimed that, “it is not an exaggeration to say that Barth’s understanding of Israel had had the kind of influence on Protestant theology that Nostra Aetate has had on Catholic thinking about Israel.”

Unlike Niemöller, Barth had always opposed the general antisemitism of the Nazi regime and not only its effects on the autonomy of the church. “He who is a radical enemy of the Jews, were he in every other regard an angel of light, shows himself, as such, to be a radical enemy of Jesus Christ. Anti-Semitism is sin against the Holy Ghost. For anti-Semitism means rejection of the grace of God.” Barth went further. He saw in Israel [note, not the state but the people, Am Israel rather than Eretz Israel] “a new sign of God’s presence in Jewish history.” However, his support for Israel as a people was, for him, a sign of God’s revelation, not out of any guilt for the Shoah. His support for Israel fitted within his pioneering work in reconceiving the relationship between Christianity and Judaism in terms of a “double covenant” and celebration of the Jewishness of Jesus, but this should not detract from the fact that he still believed that Jews had been divinely punished for their rejection of Jesus and he remained critical of rabbinic Judaism.

I need not go into any detail into the theological presumptions behind his views. For Barth, man and God were not involved in a dialectical relationship whereby God as well as humans changed because of the encounter for the preservation of the covenant, Christianity depended on God alone and his embodiment in the person of Jesus as his “eternal mode of being” whereby Jesus takes on the burden of human sinfulness. “It is incontestable that this people as such is the holy people of God: the people with whom God has dealt in His grace and in His wrath; in the midst of whom He has blessed and judged, enlightened and hardened, accepted and rejected; whose cause either way He has made his own, and has not ceased to make His own, and will not cease to make His own.”

This acceptance of Jews as having an independent covenantal relationship with God was extremely enlightened thinking at the time, but in his conception even that relationship remained a matter of grace rather than a legal and ethical contract between two parties. Further, God’s relationship to the Jews was but a precursor and precondition for the realization of God’s historic promise to all humanity. This proposition became a foundation for the subsequent Christian strong support for the State of Israel as a precondition for the Second Coming. But not for Karl Barth himself. In Karl Barth, a respect for differences emerges, but no real understanding of or sympathy for either Torah Judaism or political Judaism in the form of Zionism. This will, in turn, subsequently lead to the position of the World Council of Churches which finds in Israel’s occupation of the West Bank but one more case of Jewish obduracy and its continuing rejection of Jesus as divine. Israel remains the disobedient servant of God responsible not only for the oppression of the Palestinians, but for the continuing schism among humans preventing the Second Coming.

The end of WWII and the revelations of the Shoah did not in general produce in Christian churches guilt for its occurrence or a commandment to support the nascent state of Israel, but rather the recognition of the profundity of radical evil which struck Jews more extensively than any other group, but for which Jews were ultimately responsible because, as elected witnesses to God’s revelation, they still rejected the sacrifice of Jesus. Thus, champions of Christian-Jewish dialogue, of Christian acceptance of Jews having an independent relationship with God, such as Rosemary and Herman Reuther, could, in 1989, publish The Wrath of Jonah which sympathized and supported the State of Israel, but detailed the oppression of Palestinians.

In sum, in the aftermath of WWII there was no demonstrable guilt for the Shoah even among the minority of Christians in continental Europe who opposed Hitler, and no support for Israel based on that guilt. Christian Zionists were the exception; they dated back to a period before the emergence of Jewish political Zionism in the late nineteenth century and continued to support Israel as a state up to, during and after the creation of Israel. But both the mainline Catholic and Protestant churches, and even the reforming dissidents, including some within that group who recognized the Shoah as an expression of radical evil (das Nichtige) in our time, did not express any guilt for the Shoah or any support for Israel based on that guilt or even mention the Shoah, though the Shoah would subsequently have an enormous impact on Christian theology, especially in post-Holocaust theology.

But not when the State of Israel was declared.

 

With the help of Alex Zisman

UNSCOP and East/West Tectonic Plates

UNSCOP and East/West Tectonic Plates

by

Howard Adelman

Below is the long form of the abstract that I submitted to the Israel Studies Association in a much briefer version for presentation of a paper at this June’s conference in Jerusalem. It is really the overview of the book that I never finished and have now resurrected and on which I am currently working. I include it in my blog both to keep readers posted and to invite leads for information or discussion of the topic.

The paper explores one important exogenous influence on the definition of Israel – the United Nations Special Committee on Palestine (UNSCOP) that was set up by the United Nations on 15 May 1947 to investigate the causes of the conflict in Palestine and make recommendations, if possible, for a solution. Though UNSCOP’s make-up and deliberations were not only supposed to be impartial but appear to be impartial, the committee only succeeded in fulfilling the latter half of that principle of its mandate. This paper examines the thinking of each of the 11 representatives (alternates are only considered when they have specific relevance such as S.L. Ayteo of Australia), using records of the committee, the majority and minority reports, UN archives, records in the national archives of the different members, as well as other scholarly and biographical sources, in order to assess how each of the members of the committee assessed the different possible solutions to the problem in terms of the extant theories of how to resolve inter-nation and inter-religious conflicts in terms of various conceptions of the state and how this affected their votes in support of or opposition to partition.

This paper argues that the minority (federation) and majority (partition) reports were not ways of resolving the conflict. Most of those intimately knowledgeable about the problem did not expect the recommendations to affect the outcome one way or the other. And neither the UN, using what would become the idea of a peace enforcement force, or the major powers were willing to enforce a solution. The minority report’s recommendations would not have done any better. The two recommendations – federation OR partition with an economic union and Jerusalem under international auspices – were more reflections of two dominant models, and compromise solutions to inter-nation and inter-religious conflicts reflective of what I call Western and Eastern perspectives, both ill-suited to the character of this type of conflict.

This was not simply the case in Palestine, but would prove to be equally unsuitable to resolving conflicts in any area where the Western political tectonic plate rubbed against the Eastern political tectonic plate, whether in Palestine, the Balkans, Iraq, Syria, and, as to be soon demonstrated, in Turkey. Nevertheless, the recommendations set a template that would not only dominate the Israeli-Palestinian problem, but many other conflicts in the Middle East and the Balkans.

In my analysis, the stakes were stacked in favour of partition given the predispositions of the members by 4-3, and needed only the conversion of two other members to constitute a majority report with 6 of the 11 members in support. The majority report received seven votes; the minority report received three votes; there was one abstention. As it turned out, the conversion of John Hood from Australia from opposing the majority recommendation to abstaining proved to be totally fortuitous. Neither he nor Dr. N.S. Blom of the Netherlands were independent thinkers on the committee, but representatives of what were perceived to be their own country’s national interests.

Representation from countries around the world was not intended to represent the specific interests of a country. Rather, the membership was intended to be constitutive of independent individuals coming from countries representative of the membership of the United Nations, excluding the five major powers, especially Great Britain, the mandate of which was under examination. Though drawn from a variety of countries from different regions of the globe, the members of the committee were not there to represent the interests of their countries.

In the case of John Hood of Australia, perhaps representing the interests of Australia is a misleading description. He was there to represent the interests of H.V. Evatt, the then Foreign Minister of Australia. Evatt’s ambition was to become President of the UN National Assembly. When he was thwarted in that ambition, he released John Hood from opposing partition, which he had instructed him to do when the vote came lest he alienate the Arab states whose support he would need to be elected President. Instead, he instructed Hood to abstain as a virtual cover for the equivocation of Hood during the discussions in the committee. Abstention for an obscure reason allowed Hood to save face and later, when the issue of the Presidency was out of the way, to allow Evatt to cast the first vote for partition, thereby becoming a hero to Australian Jews and Israel.

The case of Dr. Blom of the Netherlands is another story. He was also a toady of the Netherlands Foreign Affairs Ministry. The Netherlands, like many waning imperial powers at the time, still wanted to hold onto its overseas colonies, Indonesia in particular. To do that, Netherlands would need the support of other Muslim states, particularly the large number of Arab states. Blom was instructed to oppose partition, cautiously, diplomatically and almost surreptitiously to avoid becoming a spokesperson for the anti-partition faction. However, just weeks before the issue came to a head, the Arab League announced its support for Sukarno, the leader of the Indonesian independence movement. Blom was then instructed to support partition.

The partition side needed only one more member of the committee to support partition. The Peruvian delegation, particularly Dr. Alberto Ulloa Sotomayor, was not on the committee in his own eyes to represent his country’s interests, but rather the interests of all of Christendom, more particularly, the Roman Catholic Church. If the committee voted for a federated state, then Jerusalem would be its natural capital. If the committee voted for partition, then there was a very divisive issue of whether the Arabs or the Jews would gain control of Jerusalem, Given the conditions on the ground, and the contention between the two sides, Sotomayor was able to convince his fellow members of the committee to support making Jerusalem an international city with the Church having a major input into its governance. The conversion of the Peruvian delegation to support partition was a result of a deal to take care of their major concern, Christian power in Jerusalem.

Vladimir Simić of Yugoslavia, given the different ethnicities and the coexistence of Christianity and Islam within his state, was adamantly wedded to a federal solution. He opposed partition. Nasrollah Entezam of Iran and Sir Abdur Rahman a Muslim judge from India, began by favouring a unified state, but what they witnessed and heard, the debate within the committee and the influence of Ivan Rand from the federal state of Canada with two dominant nations each with a different language, persuaded them to support a federal solution as the only realistic option that might gain majority support.

The irony was that Ivan Rand in the end supported partition and became the 7th vote making partition the clear winner. The conversion of Ivan Rand was interesting as a bell-weather since he was a major influence on the members of the Eastern tectonic caucus to adopt a federal rather than a unified state solution. The reasons are complex and cannot be summarized here, but given that Canada is a federal state with two major national groups each then having two different religions for the majority, Canadian support of a federal solution would seem to come naturally. But Rand went on to support partition. The question of why and how that happened is one of the most interesting aspects of the tale.

There are a few side conclusions. On a day after we just memorialized Holocaust Day, contrary to a great deal of mythology, there is little evidence in the historical records that the Holocaust had any noticeable let alone significant influence on the thinking of the various member parties at the time, or, for that matter, the different states that were members of the United Nations and voted to support or oppose the partition recommendation. The issue of refugees, particularly the 250,000 Jewish refugees still in Europe whom no one at the time wanted, did. There are other important challenges to received wisdom, but this is perhaps the most important one.

The study also adumbrates why dealing with refugees, whether Jewish refugees after WWII, Palestinian refugees following the Arab-Jewish War in 1947-8, or waves of refugees from the Balkans, Iraq and Syria, turned out to be so difficult. Most importantly, the analysis has implications for assessing various two-state and one-state models, not only for resolving the Israeli-Palestinian conflict, but for political solutions to conflicts in the whole region and elsewhere.

The modern period in which the nation-state has emerged supreme has never been able to resolve how that nation-state can be a full democracy representative not only of all of its members, but of all the nations within it. For example, Canada has somewhat succeeded in ensuring a degree of representation for the Francophone nation but not for its aboriginal peoples. And it, relatively speaking, is a great success The study is intended to answer the question, Why? And How? and If? there can be any definitive answer to how inter-nation conflicts can be resolved within the body politic of a single state, and, more particularly, the conflict between Jews and Arabs over Palestine.

The half-thesis as abstracted and abbreviated here with respect to the historical material, rather than the issue of political theory which I have not yet discussed, can be expected to be subject to much revision. The summary above was based on research undertaken a number of years ago. It will need to be updated. Further, since I conduct my research to falsify what I believe rather than looking for evidence to support it, it is difficult to imagine that the final product will resemble what I have written above. But that is the nature of intellectual inquiry.

With the help of Alex Zisman

List of  Representatives on UNSCOP categorized according to the analysis

  1. Floaters

John Hood, Australia

Dr. N.S. Blom, Netherlands

Dr. Alberto Ulloa Sotomayor, Peru

  1. Mediator

Justice Ivan Rand, Canada

  1. Western Tectonic Plate

Karel Lisicky, Czechoslovakia

Justice Emil Sandstrőm, Sweden

Dr. Jorge García Granados, Guatemala

Professor Enrique Rodríguez Fabregat, Uruguay

  1. Eastern Tectonic Plate

Sir Abdur Rahman, India

Vladimir Simić, Yugoslavia

Nasrollah Entezam, Iran

 

The Deep Foundation for the Iran Nuclear Deal

The Deep Foundation for the Iran Nuclear Deal

by

Howard Adelman

Instead of waiting until the end, let me sum up the main conclusions I arrived at from studying the history of the Iran and P5+1 negotiations leading up to the 2013 Framework and Joint Plan of Action deals. That way the reader can keep them in mind as he or she reads this potted history and sees if they would draw the same conclusions, most of which are not controversial. Or else they may also not want to bother reading the rest at all.

  1. A deal between parties needs willing parties on both sides. Between 2000-2008, the allied side lacked a committed U.S. partner. Between 2005-2012, Iran was an unwilling partner. The deal came together (and rather quickly) in 2013 because both sides were ready to make a deal.
  2. The allies could have obtained better terms that included non-nuclear items, such as ending Iran’s support for Hamas and Hezbollah, if they had negotiated in 2003.
  3. Once Iran went full speed ahead on its nuclear program and invested so much in it, the only deal available was a restriction on Iran’s capacity to build nuclear weapons.
  4. The total elimination of Iran’s right to have a peaceful nuclear enrichment program was never on the table.
  5. Netanyahu was opposed to making a deal with Iran no matter what the terms of the deal were.

Professor Toope in his discussion of the Iran nuclear deal on Yom Kippur did not have time to spell out the background to the deal; he concentrated on the analysis of the terms. In my last blog, I referred only to one item in that background, the 11 November 2013 Framework for Cooperation Agreement (FCA) with IAEA and the 24 November 2013 Joint Plan of Action Agreement (JPAA) with the P5+1 that put in place the foundations for the detailed negotiations.

The deeper foundation was that Iran under the Shah had signed the Nuclear Non-proliferation Treaty (NPT) in 1970 making any Iranian nuclear program subject to International Atomic Energy Agency (IAEA) inspection. In 1987, Iran began to use the black market to acquire the capacity to enrich uranium by purchasing the technical details on how to build a P-1 centrifuge from the Pakistani nuclear scientist, Abdul Qadeer Khan, the father of the atomic bomb in Pakistan and the greatest scourge ever in the business of nuclear proliferation.

Back in December 1975, after three years on the job, Khan left his position with the Physical Dynamic Research Laboratory (FDO) in The Netherlands, a subcontractor in the uranium enrichment consortium, with copied blueprints for centrifuges and the list of suppliers needed to build one for Pakistan, a goal achieved by 1978. However, because of the USSR’s war in Afghanistan, no sanctions were imposed on Pakistan lest Pakistan be pushed into the Soviet embrace. By the 1980s, Pakistan was able to produce enough highly enriched uranium for a nuclear weapon.

Soon after, Khan began supplying the Iranian Ruhollah Khomeini regime. (Khomeini was the founder of the Iranian revolution who ruled from 1979-1989 as distinct from the current Ali Khamenei Supreme Leader who succeeded him.) Iran received both blueprints and a list of suppliers. Khan’s clandestine activities spread to North Korea, Syria and Libya through the nineties. The Pakistan authorities, if not aware of his nefarious activities before the turn of the millennium, a highly dubious proposition, finally forced Khan into retirement in 2001 and put him under arrest in 2004. He was convicted but pardoned the very next day by President Pervez Musharraf and only held under “house arrest” until 2009.

The whole surreptitious trade in nuclear materials, centrifuges and centrifuge components came into the open when Libya renounced production of nuclear weapons in 2003 and Colonel Qaddafi turned all of this valuable intelligence over to the CIA, ending once and for all any credible claim that Iran, and of course Pakistan, were not involved in illegal transfers of nuclear technology. George W. Bush had gone after the one country, Iraq, that for one reason or another had declined Khan’s offers to provide nuclear technology to it. The result of the huge American mistake: the effective destruction of Iraq and eventual turning of most parts, except for the Kurdish area, either into a satrap of Iran or control by ISIS.

The 2003-2004 revelations set off an international effort to rein Iran in, possibly less from the fear of Iran as a nuclear power than the fear that Israel, with U.S. backing given Bush’s record, would bomb Iran and expand the sphere of instability in the Middle East beyond Iraq. (Arab Spring was not yet on the horizon.) The effort was accelerated with the election of Mahmoud Ahmadinejad, the wild man of Iranian politics, as President in 2005 with 62% of ballots cast. In his previous position as mayor of Tehran and as President, he was both a hardliner and irrational. It was under his watch that the UN became increasingly aggressive with a sanctions regime put in place until the election of a “reformer,” Hassan Rouhani, on 15 June 2013. Within the next six months, on 11 November 2013, the Framework for Cooperation Agreement (FCA) and, on 24 November 2013, the Joint Plan of Action, were both signed. The two will be discussed in subsequent blogs.

This set of blogs is intended to sum up the foundation of the Iran nuclear deal, depict and evaluate its terms and the role and motives of various agents for the part played leading to the agreement on the terms. For example, did Netanyahu really believe the deal was a bad one and, if so, why? Was he justified? Or was he whipping up fear for domestic purposes to ensure he would remain in power? Or was he using Iran’s nuclear enrichment program as a wedge issue to keep Iran, a real conventional threat to Israel, ostracized and isolated? What effect did Netanyahu’s opposition have on the terms of the deal, on Israel’s relationship with the U.S., and on the security of Israel itself?

Before Ahmadinejad assumed office, Iran was the last signatory to the non-proliferation treaty to accept the obligation of providing the IAEA will all plans related to nuclear activities. The then President of Iran, using high level officials in President Mohammad Khatami’s government of Iran (1997-2005), set up a back diplomatic channel that promised not only full transparency into the Iranian nuclear program, but cessation of support for Hezbollah and Hamas. The proposal was purportedly endorsed by Supreme Leader, Ayatollah Ali Khamenei. The Bush administration ignored the offer.

Key European governments – France, Germany and the UK – did not. Together with the Iranian government, they along with Iran jointly issued the Tehran Declaration that would be recycled as the foundation for the FCA in 2013, but stripped of its non-nuclear provisions. Iran had agreed to the following:

  • Pledged full cooperation with the IAEA
  • Promised to sign and implement the Additional Protocol on disclosure of any plans as a voluntary, confidence-building measure
  • Agreed to suspend its enrichment and reprocessing activities during the course of the negotiations.

In return, the EU-3 agreed to:

  • recognize Iran’s rights to develop a nuclear program for peaceful purposes
  • discuss ways Iran could provide “satisfactory assurances” with respect to its nuclear power program
  • provide Iran with easier access to modern nuclear technology as long as Iran was in compliance with its signed obligations.

As a result, Iran signed the Additional Protocol on 18 December 2003 and set out to file the required reports with the IAEA as well as allow access to IAEA inspectors. The backlash within Iran, in part based on wild distortions of the Tehran Declaration, is viewed as one of the catalysts for Ahmadinejad’s resounding victory in the 2005 elections and the subsequent suspension of Iran’s agreement to abide by the Additional Protocol to the Non-Proliferation Treaty. Iran also reneged on the promise to allow unfettered access to Iran’s nuclear program. Instead, Iran accelerated its nuclear program, though, given Iran’s pattern of deceit as revealed in the IAEA Report of 15 November 2004, many contend this began even before Ahmadinejad took power. But, as will be seen in the next blog, the real acceleration started in the latter half of 2008.

Iran tried to blame its resorting to surreptitious activities on the American obstreperous barricades to Iran developing a nuclear program for peaceful purposes. The IAEA 2004 Report was agnostic on whether Iran was developing its technology for the military use of nuclear weapons, for the IAEA found no evidence that the previous undeclared activities were geared to developing a nuclear weapons program. On the other hand, neither could the IAEA vouch for the exclusively peaceful nature of the program.

In 2004, Iran voluntarily suspended its uranium enrichment program, but refused to agree to a permanent termination. Under pressure from the U.S., the EU could not agree to a partial limitation with the only condition, the enrichment could not be diverted for military purposes. It is not clear whether the failure of the EU to recognize Iran’s right to enrich uranium for peaceful purposes helped elect Ahmadinejad as President in June 2005 in an election largely fought on domestic issues – corruption and renewal. During the first few months of Ahmadinejad assuming the presidency, there was a flurry of events:

  • In August 2005, Iran removed the seals on its uranium enrichment facilities at Isfahan
  • Germany responded and refused to either export any more nuclear equipment to Iran or even refund monies already on deposit
  • The IAEA reported that bomb-grade uranium found on inspected materials in Iran came from imported parts from Pakistan
  • In September 2005, the EU rejected Ahmadinejad’s offer at the UN that Iran’s enrichment program be managed by an international consortium and the Paris Agreement was dead
  • In February 2006, the IAEA in a 27-3 vote reported Iran’s non-compliance to the Security Council
  • In 2006, the Bush administration in Washington insisted that Iran could have no enrichment program whatsoever;
  • After that there were no substantive further negotiations until Ahmadinejad left office.

Even though U.S. intelligence at the end of 2006 declared that there was no evidence that Iran had a military nuclear program, that year was a turning point. It began with the reference of Iran to the Security Council to require Iran to suspend its enrichment program, cease construction of the Arak heavy water reactor (necessary for the production of plutonium) and fully cooperate with the IAEA. Iran signalled a willingness to cooperate but, at the same time, announced its initial success in enriching uranium to 3.5% at Natanz. In June, the first iteration of what would become the 2013 Framework agreement was proposed by some permanent members of the Security Council plus Germany.

On 31 July, the UNSC adopted Res. 1696 demanding Iran suspend its enrichment program altogether. Though rejected, Iran responded with an offer to negotiate. At the same time, a new tunnel entrance was constructed at the Estfahan uranium enrichment facility and construction resumed at the Natanz conversion facility. By the end of the year, the UNSC passed Res. 1737 imposing sanctions on Iran for the first time even though American intelligence had concluded there was no evidence Iran had a nuclear weapons program. Countries were prohibited from transferring sensitive and nuclear-related technology to Iran. The assets of ten Iranian organizations and twelve individuals were frozen.

These resolutions were passed under the authority of Article 41 of Chapter VII of the UN Charter permitting the exercise of UNSC authority even though a peace threat had not been determined. However, unlike article 42, which does require a peace threat determination, there was no binding enforcement obligation under article 41. The sanctions only became effective because of the power and positions of the P5+1 and their willingness to impose sanctions. The failure to establish an actual threat to the peace sewed a fatal flaw in the long term effectiveness of the sanctions, especially if the P5+1 lost their united front. In that case, even if the U.S. had the power alone to make the sanctions quite effective, without a solid legal and even moral authority, the sanctions regime was being built on straw.

While emphasizing the importance of political and diplomatic efforts to ensure that Iran’s nuclear programme was exclusively for peaceful purposes, three months later in March 2007, Res. 1747 was passed under Article 41 of the Charter. The resolution elaborated on the implementation of the sanctions Res. 1737 and introduced broader sanctions and targets in paragraphs 5 and 7:

Para 5: Decides that Iran shall not supply, sell or transfer directly or indirectly from its territory or by its nationals or using its flag vessels or aircraft any arms or related materiel, and that all States shall prohibit the procurement of such items from Iran by their nationals, or using their flag vessels or aircraft, and whether or not originating in the territory of Iran.

Para 7: Calls upon all States and international financial institutions not to enter into new commitments for grants, financial assistance, and concessional loans, to the government of the Islamic Republic of Iran, except for humanitarian and developmental purposes.

Under this pressure, Iran agreed on a “work plan” in late August,but there was no substantive progress in the ongoing negotiations. In December, the U.S. publicly declassified and released a summary of the National Intelligence Estimate Report on Iran’s nuclear program, concluding that the intelligence community judged “with high confidence” that Iran halted its nuclear weapons program in the fall of 2003 and, further, declared that the program had not resumed as of mid-2007. Breakout time was then considered to be three years.

In March 2008, UNSC Res. 1803 was passed broadening the sanctions and the targets even further, but also offering to freeze further sanctions in return for Iran halting its enrichment program. In February 2009, Iran announced that it had successfully carried out its first satellite launch. Barack Obama was then President of the U.S. and he agreed that henceforth the U.S. would participate fully in the P5+1 talks with Iran without Iran agreeing to meet demands first. However, this seemed to have no influence on the Iranian election in which incumbent Mahmoud Ahmadinejad was declared the winner, even though there was some evidence and many claims that the election had been rigged.  In the period of unrest and protests, diplomatic efforts were suspended. The suspension of back channel talks was reinforced when France, the U.K. and the U.S. jointly revealed that Iran had been constructing a secret, second uranium-enrichment facility at Fordow near the holy city of Qom.

New proposals nevertheless followed – a fuel swap with respect to the enriched uranium. In the interim, in 2010 Iran began enriching uranium to almost 20% instead of trading its 3.5% enriched uranium for 19.5% enriched uranium for Iran’s research program.  However, in May Iran agreed to a specific version of the fuel swap agreement, but that was vetoed by France, Russia and the U.S. Instead, the UNSC adopted UNSC Res. 1929 on 9 June 2010 again expanding the sanctions that now placed an arms embargo on Iran and prohibited ballistic missile testing. Seizure of shipments to Iran was authorized. On 24 June 2010, the U.S. Congress adopted the Comprehensive Iran Sanctions, Accountability, and Divestment Act (CISAD) aimed at firms investing in Iran’s energy sector and companies which sell refined petroleum to Iran. The sanctions were not set to expire until 2016. Two days later, the EU imposed even broader sanctions aimed not only at energy and trade, but at financial services and more extensive asset freezes.

During this period, Israel had not been sitting still. In 2005, the Jewish state defined the Iranian nuclear program as an existential threat. Israel was widely believed to be behind the Stuxnet computer virus that disrupted Iran’s nuclear enrichment program at Nantaz in September 2010.  Israeli decision-makers began to consider whether and when to order a military attack against Iran’s nuclear facilities. As rumours grew that such an attack might be imminent, the P5+1, fearing enormous economic, political regional and global security repercussions, upped the pace and efforts at reaching a deal with Iran. However, between 2010 and 2012 the negotiations with Iran produced no substantive results. In the interim in 2011, Iran’s Bushehr nuclear plant began operating and achieved a sustained nuclear reaction. Further, Iran announced its intention to increase the amount of 19.5% enriched uranium it produced. This was all documented in the IAEA 8 November 2011 Report. That document also included further information on Iran’s deceptive practices even before 2004.

Then the final turn of the screw. As part of the National Defense Authorization Act, Congress passed legislation allowing the U.S. to sanction foreign banks if they process transactions with the Central Bank of Iran. The EU slapped a ban on the import of Iranian oil and prevented insurance companies from indemnifying tankers carrying Iranian oil. Negotiations, though protracted, began in earnest and at a deeper level through 2012 with more substantive exchanges of proposals and, on another level, crucial technical meetings. However, there was still no substantive movement on key issues.

At the United Nations on 27 September 2012, Israeli Prime Minister Benjamin Netanyahu drew a red-line: if Iran amassed enough (250 kilos) uranium enriched to 20 percent. Without saying so, the red line implied that Israel would then launch an air attack against Iran’s nuclear facilities. (See the U.S. Government analysis of that threat: http://fas.org/sgp/crs/mideast/R42443.pdf.) Initially this did not seem to deter Iran as, according to the IAEA November report, more centrifuges were installed at Natanz and Iran completed installation of the 2,800 centrifuges for Fordow. However, Iran kept constant the number of cascades producing 20 percent enriched uranium. The P5+1 talks with Iran still went nowhere until Hassan Rouhani, a former nuclear negotiator, was elected president of Iran on 14 June 2013.

With that, especially after Iran’s Foreign Minister Javad Zarif at the UN in September 2013 presented a new proposal to the Americans and President Barack Obama had a telephone conversation with Iranian President Hassan Rouhani, talks then moved very rapidly towards the conclusion of the November 2013 Framework for Cooperation Agreement (FCA) and the Joint Plan of Action in response to the demonstrably new candor from Iran.

Next: The Terms of the Framework for Cooperation Agreement (FCA)

VI: Samantha Power: The Responsibility to Protect (R2P)

VII: Samantha Power: The Responsibility to Protect (R2P)

by

Howard Adelman

Evan Osnos’ New Yorker pre-Christmas piece on Samantha Power provided me with a window into the priorities and workings of the Obama administration and an opportunity to comment on one of the most high profile figures in that administration. These series of blogs have not been an analysis of Osnos’ essay. Rather, I have used the essay to discuss much of what he did not say. For example, he not only did not discuss the doctrine of “The Responsibility to Protect” (R2P), he did not even mention it once. Yet R2P is the doctrine with which Samantha Power has been most closely identified by both her friends and certainly her enemies. In this blog I want to discuss Samantha Power’s understanding of and commitment to the Canadian originated doctrine of “The Responsibility to Protect” (R2P) that was so conspicuously absent from the article. As a follow-up in subsequent blogs, I will first explore the credits she claimed for the USA related after chairing the ABD, President Obama’s Atrocities Prevention Board, set up in 2011 and subsequently discuss the application of R2P to specific cases.

At the beginning of this century, Tom Axworthy, when he was Foreign Minister of Canada, initiated a commission to study and make recommendations on how countries should behave when there are indications that wide-scale atrocities are or may be taking place or even about to take place. Formed in September 2000, the International Commission on Intervention and State Sovereignty (ICISS) delivered its massive two volume report, “The Responsibility to Protect,” in 2001. Its goal was to develop a global political consensus about how and when the international community should respond to emerging crises involving the potential for large-scale loss of life and other widespread crimes against humanity. The report pointed to the central challenge – the primacy of the doctrine of the sovereign state as absolute. It outlined how that could be overcome by limiting sovereignty and creating a doctrine of intervention as a trump when states failed to fulfill their responsibilities to protect their own citizens. Under the auspices of the United Nations, the doctrine was to include both a “Responsibility to Prevent,” endorsing early warning systems and root cause analyses, and a duty both to respond and rebuild, although the overwhelming public image has been on intervening within a sovereign state. In 2005, the doctrine was endorsed by the United Nations unanimously.

In the doctrine, a state has a responsibility to protect its own population. If it fails to do so and mass atrocities seem immanent or underway, the international community assumes the responsibility of, in the first instance, assisting a state unable to provide protection on its own. If the state fails to protect its citizens from mass atrocities, the international community has a right to use a variety of tools at its disposal to ensure protection of those citizens. Coercive military intervention could be used as a last resort.

The uptake of R2P by the international community in a very short time is very instructive. Contributing to a Safer and More Secure World. (2005-05-12) and its complementary International Policy Statement were issued at the very beginning of 2005 by the Government of Canada (GofC) followed by “A Role of Pride and Influence in the World” that set forth the principles of R2P, how Canada would implement it, and the steps Canada would take to get the international community to buy in. One part of the last document reads: “While diplomacy remains the preferred tool in the pursuit of international peace and security, our country must possess the hard military assets necessary to achieve our foreign policy goals.” Coercive military means would be used to back up diplomacy in the traditional realist mode. However, the policy document also stated that, “the Government has made clear that it intends to engage members of the United Nations in moving forward with the ‘Responsibility to Protect’ initiative.” In fact, that process was well underway.

The UN High Level Panel on Treats, Challenges and Change wrote “A More Secure World, our Shared Responsibility;” the document was released by the Office of the Secretary-General of the UN in 2004; R2P was endorsed in 2005. The objective was to develop new rules to enable the international community to protect civilians from extreme harm when their own government is unwilling or unable to do so.   In 2005 at the UN World Summit, when the UN unanimously endorsed the doctrine, it was already clear that it was a stillbirth. China, for example, was just one of many countries that put caveats on their support. That country was quite clear that it was voting for motherhood; anytime the issue came up and R2P was to be applied, it was to be subordinate to the absolute sovereignty of a state. Sovereignty must always trump R2P. A nation’s permission to intervene would still be required. The doctrine was only to be applied with the consent of the nation targeted, a principle that the doctrine was intentionally designed to overcome. The United States under George Bush’s administration also voted in support of the doctrine while making quite clear that decisions of multilateral bodies, such as the UN, would be subordinate to the decisions and interests of the United States. Sovereignty still ruled.

Samantha Power’s first book was not A Problem from Hell: America and the Age of Genocide published in 2002, which traced the history of genocides in the twentieth century and government responses to those atrocities as they developed, but a co-edited volume with Graham Allison the previous year called Realizing Human Rights: Moving from Inspiration to Impact. The order of the books and their titles are instructive. For her focus was not to provide a scholarly understanding of why genocides take place nor why governments stand by and do nothing. The book was intended to inspire action, initially by ensuring that warning information was collected and analyzed and a box of prevention tools developed, including military intervention.

This coincidence of timing led to the close identification of Samantha Power with the R2P doctrine rather than any role she played in its development or getting the UN’s endorsement in unanimously adopting the doctrine while gutting it of any meaning, though undoubtedly the fame of her second book, combined with the aftermath of the failure to prevent atrocities in both Rwanda and the former Yugoslavia, helped in both publicizing the doctrine and linking her name closely with it. Samantha Power had no significant role, even in the International Coalition for the Responsibility to Protect (ICRtoP), which was organized to ensure the doctrine was implemented.

The New American, as a very loud voice on the far right in America, has insistently contended with the original R2P doctrine and insisted that U.S. sovereignty and interests had to be protected against the insatiable hunger for power of the UN, the globalist government-in-waiting. Right wingers claim that the Carr Center for Human Rights at Harvard, with its commitment to make human rights principles central to the formulation of U.S. public policy, and, more particularly, Samantha Power as its founding executive director, participated in the advisory board of the International Commission on Intervention and State Sovereignty established by the Canadian government. In fact, Michael Ignatieff, at the time Carr Professor of Human Rights Practice at the Kennedy School of Government, Harvard University, was on the commission, not Samantha Power. The Carr Center itself, however, is not included in the index of the report. Further, in the supplementary second volume of the Responsibility to Protect Report edited by Thomas Weiss and Don Hubert, to which I contributed an essay and which includes an exhaustive bibliography, Samantha Power did not contribute to any of the thematic essays. Nevertheless, these facts never stood in the way of the right in the United States linking her intimately with the doctrine or for branding Samantha as a “worldwide leader” in the promotion of this “sovereignty-stealing” doctrine that Samantha Power allegedly worked to develop in partnership with The Global Centre for the Responsibility to Protect (GCRtoP).

How does this have any significance since Samantha Power unequivocally endorses R2P? It is significant only in pointing out that anything the right says about Samantha Power, both generally and with respect to R2P, is not to be trusted. Unfounded comments from the right make Samantha Power an epitome of scholarly accuracy and acuity. Ramesh Thakur, when he was director of the Balsillie School of International Affairs and a distinguished fellow at The Centre for International Governance Innovation, published an op-ed in a number of Canadian newspapers on the new world order. The right wrote that Thakur in his article quoted Samantha Power as “pushing for a “global rebalancing” and “international redistribution” of power that would usher in a “new world order.” Contrary to their claim, Samantha was not even cited in the article.

What really bothered Marco Rubio (R-Fl) at her inauguration hearings for her appointment as UN permanent representative to the UN was not Samantha’s threat to the supremacy of the absolute sovereignty of the USA, but her call for the USA to confess its past sins, for a collective public mea culpa, a public equivalent to the secret confessional in a Catholic Church. In her article, “Force Full” in The New Republic in 2003, Samantha had criticized George Bush’s use of “illiberal power.” “U.S. foreign policy has to be rethought…We need: a historical reckoning with crimes committed, sponsored, or permitted by the United States. This would entail restoring FOIA [Freedom of Information Act] to its pre-Bush stature, opening the files, and acknowledging the force of a mantra we have spent the last decade promoting in Guatemala, South Africa, and Yugoslavia: A country has to look back before it can move forward. Instituting a doctrine of the mea culpa would enhance our credibility by showing that American decision-makers do not endorse the sins of their predecessors.” Samantha favoured humanitarian intervention and opposed imperial military intervention. Samantha’s response to Marco Rubio’s query, however, was an exercise, not only in sophistic political side-stepping, but in turning a challenging political question into an exercise in obfuscation. Further, she used the question to exclaim her vaulted view of the United States.

In this blog I focus on words and ideas rather than claimed deeds, such as Presidential Study Directive 10 (PSD-10) of September 2011 declaring the prevention of mass atrocities and genocide to be a “national security interest and core moral responsibility” of America and directing the National Security Advisor to conduct a comprehensive review assessing U.S. government capabilities and needs in this area.

Ambassador Power told one interviewer that, in addition to the constraints around the moral imagination and budgets that she encountered, and the time required to convince others, she had to cajole and convince after understanding where those resistant others were situated even when she experienced herself as an outsider and an alarm went off, “intruder alert, intruder alert.” Although she had come to appreciate and understand those constraints, nevertheless she always felt blessed “to have the chance to bring these issues to the fore.” Barack Obama was not one of those constraints because he has had a longstanding interest in multilateral efforts to combat war crimes and genocide and supported a more constraining international legal regime on war crimes, even at the cost of national sovereignty even as he appears more the “realist” than an advocate of humanitarian intervention. So she had always been working with the imprimatur of the president.

At an International Symposium on Preventing Genocide and Mass Atrocities in Paris convened by the U.S. Holocaust Memorial Museum and the Mémorial de la Shoah in Paris, Samantha Power, as Special Assistant to the President for Multilateral Affairs and Human Rights and Senior Director for Multilateral Affairs at the U.S. National Security Council, gave a keynote address on 15 November 2010. The conference focused on genocide prevention and policy initiatives, current threats of mass atrocities, and prospects for greater international cooperation. Samantha made four points.

To the question of what we should do differently as governments and members of civil society to reduce the likelihood of atrocities, she stressed the importance of strategic commitments to prevent mass atrocities in Obama’s National Security Strategy that go beyond a vow of “Never Again!,” beyond the UN’s endorsement of R2P, or even citing R2P in a Security Council resolution. The strategic commitment is one that sends a critical message throughout the government and to the world of American priorities in order for resources to be allocated and political will to be mobilized and harnessed.

In the Torah, there is a distinction between oaths, vows and promises. When one reads Samantha Power, a strategic commitment is not an oath which a higher authority will require you to fulfill, nor a vow where there are consequences if you fail, nor even a promise where your sense of self to yourself and others will be diminished if you fail to act. A strategic commitment is none of these. It is about symbols. It is about messaging. It is about enhancing and reinforcing a constituency. It is about creating an organization that can work towards a singular goal. But it is not about developing practical tactics on the ground and certainly not about delivering results. In other words, it is about politics. It is about spin.

Samantha went on to insist that the strategic commitment also had to be personal and embodied in an individual who will ensure a president’s legacy and an organizational structure that will guarantee that the information flows up and the options are available to the president. This is consistent with her misplaced analysis of what went wrong when President Clinton was dealing with Rwanda. It is not consistent with my analysis of that failure nor with my appreciation of the significant humanitarian successes by governments. Ron Atkey, when he was Minister of Immigration and was confronted with the Indochinese Boat people crisis, told his staff in the Ministry that he did not want to go down in history like those Canadian officials who turned their backs on the Jewish boat people in the thirties and said “None is too many.” Practical more than rhetorical leadership is required.

Look at the difference. In Samantha’s world view, underlings are required to ensure a legacy so “that the President doesn’t look back on his presidency and wonder why he wasn’t informed or presented with decisions.” In the Canadian understanding of commitment, that commitment is a will to act in a specific direction in a specific context faced with a specific problem. Whether it was Jack Pickersgill’s commitment to facilitate entry of Hungarian refugees into Canada or the Clark government’s approach to the problem of Indochinese refugees, commitment was not a strategy but an action, not setting up and devolving the problem onto an organization and making an impersonal structure responsible and simply appointing someone at the top committed to the same purpose. Those steps followed from a specific commitment to act, not as a condition for acting. For Samantha, what is required is governmental organization that matches the methodical organization characteristic of mass-killings. However, a prior requirement of genocide is the commitment of a few to destroy a group. The organization is simply a tool to accomplish the task.

Samantha simply demonstrated that she neither understood the source of the problem nor how commitments are formed to deal with them. Her approach is essentially bureaucratic and not action-oriented, concerned with general abstract propositions not specific deeds. Though it has some resemblance to mass lining in the Chinese political system, it lacks the key element of determination on the part of leadership to get something done.

Samantha’s third requirement to combat the prospect of mass atrocities focused on institutionalization. “Governments must work to systematize ‘prevention…to routinize our response to indicators of mass atrocities.” But indicators, as demonstrated in the developing East and West African early warning systems, do not connect with action but with the process for gathering and classifying information. Structures and organization do not necessarily make it easier to ensure early engagement. They just can help make it possible. Possibility should not be confused with engagement. Further, instead of announcing a new “Tech Challenge for Atrocity Prevention” that will “invite ideas–and award grants–for innovative technologies that strengthen the U.S. government’s capacity for early warning, prevention, and response with respect to mass atrocities,” why not, instead, recognize and enhance what is already in the field and is working by strengthening local capacity to anticipate the prospect of mass killing? It is not the American DOD that needs strengthening in its capacity to deal with atrocity prevention and response. The U.S. already needs to be on a weight loss program relative to its array of intelligence services. The military in Africa need to be strengthened. It is hard to imagine the American army being authorized to, let alone embarking on, an “atrocity prevention mission.”

Osnan’s article on Samantha was subtitled, “In the realm of the possible” with the implication that ideals had to be tempered with reality. But that is simply the result of construing idealism and realism as poles apart. In fact, they are complementary. The problem is to get the two into a dialectical embrace. Strategic commitments, in Samantha’s construal, structure and organization, and even institutionalization simply will not do. The focus has to be on decisions and deeds in responding to concrete challenges, not creating abstract general principles and a bureaucratic structure to enact them. Principles must be embodied in practices and not in abstractions. So all the convening of bureaucrats would not have led to the decision to take Hungarian refugees or Indochinese refugees into Canada. Decisions to act were crucial. “Whole of government” meetings focused on prevention are a crock, except as an educational tool. They do not and will not drive plans and responses. Samantha is just demonstrating her ignorance of the way governments actually accomplish anything.

Samantha’s fourth and final point in her address was to stress the importance of civil society and the value of social movements, such as the movement of which she was a part on the Darfur issue. I will take up that as an example in more detail tomorrow. But having been very active in many social movements rather than politics, from the nuclear disarmament movement to Operation Lifeline in the private sponsorship of the Indochinese refugees, it is my considered opinion, as a result of my research as well as critical reflection, that they are not a sine qua non, as Samantha contended. As both my involvement and research have tried to establish, civil society pressure can be complementary and enhance the ability of government to lead and act. But government has and must provide real leadership. It is not a graduate seminar for considering options. That leadership can initiate actions independent of social movements or, preferably, with their help, but the existence or non-existence of a social movement is not key.

Samantha’s involvement in the Darfur movement is a prime example. It has been a total bust as I will try to show tomorrow. Contrary to what she claimed, there was a movement dealing with Rwanda headed by Alison des Forges. The failure was not because of the absence of such a movement, but because the government was traveling in a very different direction with very different commitments. Her contention that, “it (a social movement) didn’t activate for Rwanda. However, because of Darfur, which reached its peak killing period around the ten-year anniversary of Rwanda, the movement has been broadened and institutionalized.” Indeed, but to what effect?  On Sudan, as I will try to show, what was needed was an accurate assessment of the problem and a commitment to action. To conceive of government working because of grass root and grass top pressure is just a fallacy. The top is not a pressure point but a centre of activity. Grass roots can help the centre; it cannot mobilize it.

President Obama’s endorsement of Samantha’s prophylactic recipes to strengthen the U.S. government’s ability to foresee, prevent, and respond to genocide and mass atrocities are misplaced. “Strong organization,” “a whole-of-government approach,” “bureaucratic monthly meetings,” “appropriate burden sharing,” “National Intelligence Estimates on the global risk of mass atrocities and genocide,” as if genocide and mass atrocities were equivalent to climate change and anticipations of food shortages. Pap! Bureaucratic spin for doing nothing. Training peacekeepers and local capacity building are not new tools. Neither are targeted sanctions, even if the targets are tweaked somewhat. Nor visa bans. These, and lessons learned studies, have been utilized by both Republican and Democratic administrations in the past. Very economical initiatives on the ground have been underway, ironically largely financed by the American government for over a decade. These should be recognized and enhanced rather than concentrating on bureaucratic remedies. But I have not been able to find whether Samantha knows they exist.

Samantha’s fallacious analysis would not be so awful if it was not the prime cause for the impotence of the most powerful country in the world.

The El Jiyeh UN Oil Spill: Financial and Political Fairness

The El Jiyeh UN Oil Spill: Financial and Political Fairness

by

Howard Adelman

As discussed in the last blog, whether in Anglo Tort law or in Article 1382 of the 1804 French Civil Code (“Droit of la Responsibilité”), the principle for calculating compensation is similar. In summary, that code says: “Tout fait quelconque de l’homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé à le réparer.” He who causes the damage, must pay. In English, “any loss caused to a person through the behaviour of another must be repaired by the person whose fault it was that the loss occurred.” The extended version in English is loosely translated as: Reparation to the victim of a crime or a tort must, in principle, be responsible for the complete damage the victim has suffered. Moral damage is taken into account as well as material damage. Indirect damages must be taken into consideration, but only as long as they are revealed as connected to the fact of the tort. In principle, the current damage done at the time only comes into consideration for the calculation of the reparation. In exceptional circumstances, a judge may take into account future damages if, firstly, the realization is certain and if, in addition, the means exists to assess in advance the exact amount of those damages.

Costs include not only environmental damage, but costs to fisheries and the tourism industry. Hundreds of suits have been filed as a result of these provisions against other offenders in a variety of oil spills. None have become issues for the United Nations General Assembly, especially ones that occurred as a result of hostilities. The issue is not about the principle for assessing a claim. The issue is about the venue and the procedure.

Further, since this is a claim made under international law and not domestic law, one principle for assessing the justice of a claim, particularly when the claim is about damages consequent to hostilities, is to discuss the purpose of the damage caused. In WWII, there were over 300 attacks against oil storage depots and refineries according to British and American bombing surveys, the last one in the European theatre against a refinery in Norway in April of 1945. Assessments after the war compared the effects of targeting the oil infrastructure. Compared to other targets, including the bombing of transportation, especially trains, the attacks on oil refineries and oil storage facilities infrastructure in areas controlled by Nazi Germany were considered to be the only unequivocal successes in damaging the German war effort, a conclusion which reaffirmed the opinion not only of Hermann Gӧring, but also Luftwaffe commander Adolf Galland in his book, General der Jagdflieger. Compared to WWII, the two attacks by Israel were pinpricks.

But what about the environmental consequences? Let’s put the El Jiyeh oil spill in comparison to the costs and size of other oil spills. The $850 million dollar total liability estimate included about 25% for cleanup costs. That amount can be compared to the environmental damage costs of the Exxon Valdez oil spill which was at least ten times larger. The latter’s cleanup costs, in a much more difficult and expensive terrain and covering 2,100 km of coastline rather than 170 km, were $3.5 billion. Although the Lebanese oil spill was often equated in the media with the Exxon Valdez spill, the cleanup costs in Lebanon were much less, just over $200 million, in this case an amount reasonably proportionate to the Exxon Valdez cleanup costs.
For another comparison, the costs to Saudi Arabia for the cleanup from the First Gulf War up to 2011 was $700 million Saudi riyal (over $180 million) in environmental rehabilitation in addition to the $45 million contributed internationally. However, compare the 240-336 million gallons of oil spilled from the Sea Island terminal and destroyed tankers in the 1991 Kuwait Gulf War by Iraq, supposedly to foil a US marine landing and to prevent the oil from falling into American hands, with the 5 million gallons spilled in the El Jiyeh disaster. The resulting oil slick in the First Gulf War was over 100 miles long, 42 miles wide and as much as 13 cm. thick in some places, several times the size even of the Exxon Valdez oil spill. Just to cap the 700 wells and douse the fires cost Kuwait $1.5 billion in addition to the $225 million cost to clean up the environmental disaster. The Jiyeh spill was 5% the size of the Gulf spill, yet the cleanup costs were said to be about equivalent.

Take another example, this time from the Second Iraq War in 2002. Rather than an oil spill, consider the much more serious damage to the ozone layer by 60,000-80,000 combat missions that released 2,000 tons of ozone-destroying halons and stealth bombers that released freon fuel additives which, together, were estimated to be the equivalent of the global civilian releases destroying the ozone layer for three months. In neither the first nor the second Iraqi wars was there ever any attempt to attribute responsibilities and costs. No claims were made by the United Nations General Assembly against one of its members for these environmental calamities that occurred in the course of hostilities.

The oil spill can also be placed in the context of commercial as well as military environmental disasters:

Year Millions Location Cause
of
Gallons

1978 68.7 Amoco Cadiz ship grounding in storm
1979 88.3 Coast of Tinidad Tobago two tankers colliding
1983 80 Nowruk Oil Field Persian Gulf collision with a platform
1983 80 Coast of South Africa, Soldana Bay Castillo de Bellver
1988 43 Coast of Nova Scotia break up of Odyssey in storm
1989 84 Alaska’s Prince William Sound Exxon Valdez struck Bligh reef
1991 80 Coast of Angola shipboard explosion
1991 42 Coast of Genoa Haven Tanker explosion
2010 185 Gulf of Mexico Deep Water Horizon blowout

The El Jiyeh oil spill was relatively small, less than 5 million gallons, compared to these oil spills ranging from 42 to 185 million gallons. The point of listing these non-military incidents is not to downplay the Lebanese oil spill, but to use these disasters to ascertain how liability is estimated and assessed. In commercial disasters, evidence is collected and analyzed, testimony is heard by a detached party, legal precedents and regulations are cited and, in contrast to the way the issues are handled by the media (the example of Anderson Cooper’s sensationalist coverage of the Deepwater Horizon oil spill is often cited), there is a strenuous effort to avoid sensationalism by those assessing costs.

In the 2010 Gulf of Mexico Deep Water Horizon blowout, BP was required to pay $1 billion, just over the costs for which Israel was held by the UNGA to be liable for an oil spill that was 1/57th the size of the Deep Water Horizon spill.

In the case of these commercial oil spills, there is never an effort at repeating year after year another step in the evaluation process. The way the General Assembly handles the procedure is to insert in each motion a requirement that the Secretary-General report back on results and future action, thereby ensuring another future annual resolution and another opportunity for publicizing Israel’s alleged wrongs. This issue is about distraction from the real culprit, shaming and blaming to make a political point, not the collection of reparations.

When the motion is softened as a “request”, countries can vote for the motion seeing nothing wrong in asking Israel to pay for the damages. Nor do they have to confront the outrageously one-sided nature of the process or the very issue of whether the UN General Assembly was or is an appropriate place to assess blame and costs. Further, the repetition of one UN motion after another, to the exclusion of any other jurisdictions re parallel cases or any comparisons, allows the issue to remain in an isolated silo, in the same manner as the Palestinian refugees, who are treated totally differently than any other refugees. And those who were victims of the environmental disaster suffer the same fate as the Palestinian refugees – compensation is delayed endlessly because the issue of compensation and liability have not been separated. I can find no information that compensation has ever been paid to victims of the El Jiyeh oil spill.

There is another problem. The costs to the fisheries, mostly resulting from the blockade imposed by Israel against Lebanon from 12 July to 9 September 2006, are all viewed as costs to be attributed to the oil spill. The costs associated with loss of restaurant businesses because of the apprehension of Lebanese who arguably would not go to seafood restaurants or eat seafood because of possible effects on their health, are conflated with losses to restaurants because, during a war, there was very little tendency to want to risk eating in a public venue.

Israel is an active participant in the Barcelona Convention for the Protection of the Mediterranean Sea and works with all parties to the convention to promote its aims. Israel offered to work with others in a fair and judicious process to assess costs and liabilities of all environmental damages from the war. The offer was never taken up.

Instead of a separate procedure for determining compensation owed to victims and one for determining the liability for that compensation, the two issues were conflated in the El Jiyeh oil spill. The result is impotency in providing relief to victims in the name of making a political statement. The politicized process has been characterized by initial hyperbole, subsequent significant inflation – monetary, environmental and political – a one-sided assessment (the environmental damage done to Israel by its enemy, Hezbollah, was totally ignored), a singular focus that is decontextualized in both time and space. Precedents are ignored. The legal process is caricatured. The result is politics in its worst form, not justice.

As a final comparison, earlier this week I wrote about the break in the Eilat/Ashkelon oil pipeline 20 km. north of Eilat that took place last Thursday near Be’er Ora. There the spilled oil was also heavy crude, the most difficult to clean up. Initially, the original estimate of the amount of the spill was 1 million litres, but it has since been increased to 3 million litres (700,000 gallons). That means the Arava oils spill was one/seventh of the size of the El Jiyeh spill which, in turn, was one-tenth the size of the average commercial oil spill that attracts widespread media coverage. In both the Arava and the El Jiyeh cases, nature reserves were threatened and the cleanup had to take place swiftly in a very delicate eco-system. So one can also imagine that if the Israeli blockade did prevent a cleanup of the spill for up to a month, how much more disastrous the Lebanese spill, already seven times larger, was than the Israeli spill where there was almost panic that the oil would spill into the delicate ecosystem of the Gulf of Aqaba/Eilat. In the Lebanese oil spill, much of the five million gallons flowed into the Mediterranean Sea.

However, when costs of the cleanup are compared, the Israeli cleanup is expected to cost 17 million Israeli shekels or a little over $4 million, almost one-fiftieth (1/50th) of the cost of the Lebanese cleanup, costs which were so much higher than the costs of most other oil cleanups. Compared to the $850 million assessed against Israel as liability costs, the costs of the Israeli oil spill seem a pittance. The costs in the Arava spill will be, if the estimates are correct, 1/200th of the liability assessed against Israel and 2% of the cleanup costs in the Lebanese oil spill. So I am torn between being appalled at the extent of devastation caused to Lebanon in 2006 and upset at the gross injustice in both procedure and substance that seems so outrageous and disheartening.

But I should not be so shocked. After all, I worked in the late eighties and early nineties with the UN on early warning systems to anticipate and prevent hostilities and was part of the investigating team in the inquiry into the UN role in the Rwanda genocide where I learned firsthand of both the fickleness and impotence of the United Nations.

Even though the adoption of the “Oil Slick on Lebanese Shores” Resolution by the General Assembly is deliberately worded as a request because the UN General Assembly lacks jurisdiction and also to gain as many votes for the resolution as possible, Dr. Nawaf Salam, the Permanent Representative of Lebanon to the United Nations, after the passage of the resolution, stated that the UN ruled that, “Israel has to pay for the damages inflicted on Lebanon in the immediate aftermath of El-Jiyeh attack.” The politics of the resolution is what is important, certainly not the compensation to victims. The Lebanese Permanent Representative to the UN envisioned the resolution as merely paving the way for further compensation in other areas of damage (health, ecosystem services as habitat, potential ground water contamination, and marine diversity) from the 2006 war.

The unique presumption is that Israel alone is liable for environmental damages caused during the 2006 Lebanese War or in any hostilities. Further, only environmental damage to Lebanon and not to Israel is to be considered. Israel is blamed as the aggressor even though, on 12 July 2006, Hezbollah’s military wing, as an exercise in Islamic “resistance”, launched rockets across the Lebanese border with Israel targeting the town of Shlomi and a military outpost at Shebaa Farms. Hezbollah also initiated a cross-border attack against two IDF Humvees, killing five Israeli soldiers and capturing two others. The objective of the Hezbollah aggression was ostensibly to free Arab prisoners held in Israeli jails. Israel retaliated by ground, air and sea attacks. Israeli navy gunships bombarded an electric power station on the coast at Jiyeh that resulted in the oil spill. The naval blockade to prevent the resupply of weapons to Hezbollah, which had fired about 4,000 rockets at northern Israel, may possibly have prevented a speedy cleanup. Security Council resolutions had called for full respect for the Blue Line by both parties and full implementation of the Taif Agreement, of resolutions 1559 and 1680 that required the disarmament of all armed groups in Lebanon. In spite of all this, Israel is considered the aggressor and liable for all costs resulting from the oil spill.

This is not justice. This is propaganda. It is enough, or almost enough, to make a peacenik like myself vote for Harper’s Tories in the next election for its principled stand on this issue at the UN — if it were not for the Harper government’s systematic destruction of the independence of the knowledge base of the Canadian civil service, its disregard of the environment, the lack of attention and progress on substantive issues of concern to aboriginal peoples, an absence of any real initiative to help refugees, and so much more.

The El Jiyeh UN Oil Spill: Legal Issues

The El Jiyeh UN Oil Spill: Legal Issues

by

Howard Adelman

There is no question that Israel bombed the oil storage tanks at the El Jiyeh electrical production facility south of Beirut during the 2006 Israel-Lebanon War. There is no question that Israel did so deliberately. However, did Israel do so knowing, or was it reasonable for Israel to have known, that 10,000-15,000 tons of IFP number 6 heavy fuel oil from the ruptured tanks would leak into the Mediterranean?

I do not know. From reading the repeated UN “inquiries” and reports into the environmental disaster, one could never find out. Because there is no effort to ask the question, let alone find answers. The inquiries begin with a presumption of guilt and responsibility and merely tried to make as strong a case for the prosecution as possible, much more in the nature of the procedures for a kangaroo court than an independent and objective inquiry in which one gathers and hears all the evidence, raises all the key questions, analyzes the results and tries, as much as possible, to arrive at an objective finding.

As much as one loves the environment and is determined to do everything to protect it, and even if one is critical for Israel going to war with Lebanon when Hezbollah rained 4,000 missiles down on the northern half of the country, the process adopted, if one believes in principles of fairness, has to make a detached observer sympathetic to the position of Israel on this question.

Begin with the legal question. Is Israel guilty for the financial costs of the environmental damage, and, perhaps, also the damage to the tourist and fisheries industries, according to international law? The reports all cite international law, but the citations are akin to those of a first-year university student who believes simply that you cite what you perhaps read as proof rather than offering supporting authoritative evidence to give weight to an interpretation or argument. Where domestic law is cited, it is only used as a basis for making a claim without considering whether the claim in general is valid.

There exist both law and legal routes to assess and attribute costs to various parties in order to assess liability and financial responsibility for damage from oils spills. Some of that is domestic law. For example, there is the America‘s Oil Pollution Act or its equivalent in other legal jurisdictions. There is international law. And there is case law in both domestic and international proceedings. However, there is no precedent for the United Nations General Assembly, and the office of the Secretary-General, becoming involved in assessing responsibility and costs for an oil spill.

Section I of the 2014 UNDP “Report on the Measurement & Quantification of the Environmental Damage of the Oil Spill on Lebanon” summarizes the contents on the legal question as dealt with in seven other 2006 and 2007 UN reports on the issue:

• Experts Working Group for Lebanon, Lebanon Marine and Coastal Oil Pollution International Assistance Action Plan, 25 August 2006;
• International Union for Conservation of Nature (IUCN), Lebanon Oil Spill Rapid Assessment and Response Mission Consultancy Report, 11 September 2006;
• Conseil National de la Recherche Scientifique Results of the Scientific Researches Undertaken by the Council in relation with the consequences of the last Israeli aggression on Lebanon (in Arabic), 20 October 2006;
• Food and Agriculture Organization of the United Nations, Lebanon – Damage and Early Recovery Needs – Assessment of Agriculture, Fisheries and Forestry, November 2006;
• United Nations Development Programme, Rapid Environmental Assessment for Greening Recovery, Reconstruction and Reform – 2006;
• World Bank, Republic of Lebanon – Economic Assessment of Environmental Degradation Due to July 2006 Hostilities, 11 October 2007;
• United Nations Environment Programme, Lebanon – Post-Conflict Environmental Assessment, 2007.

The focus (and expertise) of virtually all these reports was to assess damages and the costs for recovery, sometimes including damages unrelated to the oil spill, but not to determine liability. In other words, who has the duty and responsibility for compensation? The first reference is to domestic Lebanese law which is heavily influenced by French law. As in English tort law, it includes the general principle that “any wrongful act which causes prejudice to another person obliges the culprit to indemnify the aggrieved party”. That is, the act must be a wrongful one, there must be a causal link between the wrongful act and the consequences (in this case, of the oil spill), and there is a question of indemnification. In summary, the polluter pays. The 2014 UNDP Report specifically states that it will not go into any of these three questions because the UN General Assembly has already made that determination, in fact, numerous times. So once again, legal analysis is not attempted on the most fundamental issue because there has already been a finding of guilt. Circularity permeates the whole process. A party is guilty because that party has been found guilty.

The 2014 UNDP Report explores whether Lebanon tried to mitigate the damages because, if it did not, then Israel could escape some or all responsibility. The Report holds that, because Israel imposed an almost month-long maritime blockade on Lebanon, that country was unable to exert any effort to mitigate the consequences of the oil spill and, therefore, there was nothing to mitigate Israel’s responsibility. No evidence is cited. No international law on liability for the untoward effects of blockades in cases of hostilities is cited. Israel is simply fully responsible because one of the results of the blockade was, presumably, preventing Lebanon from mitigating the effects of the oil spill — even though there was no effort to determine whether Lebanon made such an effort, including requesting Israel’s cooperation, and whether Israel’s blockade actually prevented mitigation efforts.

How much ought to be assessed against the party which commits the wrongful act? For the totality of the prejudice sustained by Lebanon, a principle applicable to individual or collective disasters. Totality means the restoration in full to re-establish the equilibrium destroyed by the alleged wrongful act had the oil spill not occurred. Prejudices may not just be direct consequences but can include all indirect results, including future estimated or even possible results – such as lost profits and lost opportunity costs – as long as those indirect consequences can be linked to the wrongful act. In addition to indirect costs, there are ricochet effects, for example, the losses suffered by taxi drivers as a result of the loss of tourism which can be connected to the oil spill, or, an even greater ricochet effect, the loss of renovation work because owners of restaurants and hotels did not make their usual improvements because of huge losses suffered as a ricochet effect. However, in French law, moral as well as material costs are not included, such as loss of reputation to the tourist industry in Lebanon.

Given that the guilty party was identified by UN General Assembly resolutions, given this set of guidelines to determine damages, what process can be used? Three possibilities are set forth:
1. A UN agency or a combination of them makes the determination;
2. A panel of independent experts makes the determination;
3. A task force of government experts drawn from the party affected makes the determination.

In the assessment of environmental damages from the Iraqi actions following its invasion of Kuwait in defending its aggression by releasing oil into the Gulf, the Security Council, not the General Assembly, made the determination via a United Nations Compensation Commission that was provided with an interim fund. The Security Council, which has jurisdiction in cases of determining fault in a war, made the decision on how compensation would be handled. None of the options above were used; rather, a special UN agency was created, which was given interim funding to deal with the compensation and separate liability issues from victim compensation. To prepare claims for compensation, the Kuwait government set up a Public Authority consisting of representatives from both government and the private sector, supported by experts, to review any claims and to file the claims before the Claims Commission which would adjudicate those claims.

In adjudicating claims, including intangible assets such as lost business revenues, the losses had to be connected with the action, but, in the case of the Kuwait situation, the action was not restricted to the losses from the pollution caused by the oil spill into the Gulf, but any losses resulting from Iraq’s invasion and occupation of Kuwait. If the latter was used as a precedent for claims by Lebanon as a result of the oil spill, then the accumulation of claims would be far greater than just those caused by the oil spill. In the Iraqi-Kuwait case, environmental claims were given the lowest priority.

Note further that the UN General Assembly started a process to create an international convention with respect to compensation as a result of hostilities between parties where one party is considered to have committed a wrongful act. The UN drafted proposed articles with respect to reparations that were referred the International Law Commission in 2001, but they have never been in force or given any application. Nevertheless, they were used as guiding principles for assessing responsibility.

In summary,
1. There was never any determination of responsibility for the hostilities;
2. Responsibility for the oil spill was determined independently, in fact, without any determination of responsibility for hostilities;
3. The UNGA lacked jurisdiction for determining responsibility or assessing compensation for environmental damages;
4. The UNGA had never proposed let alone passed a convention dealing with compensation in cases of oil spills;
5. There was no separation in determination of liability and determination of compensation;
6. There was no assessment whether the blockade in fact prevented any mitigation of damages;
7. The process of adjudication of compensation had no independence;
8. There never seemed to be a process for differentiating losses resulting from the hostilities and losses resulting from the oil spill;
9. No rationale was offered for making environmental damages the highest priority whereas they were made the lowest priority in the Kuwait case;
10. There was certainly no assessment or evaluation on the environmental damages suffered by Israel as a result of the hostilities.

The UN cited the following to justify its decision and its previous motions:
• United Nations Conference on the Human Environment, especially principle 7 of the Declaration of the Conference, which requested States to take all possible steps to prevent pollution of the seas;
• the need to protect and preserve the marine environment in accordance with international law;
• the 1992 Rio Declaration on Environment and Development especially principle 16, which stipulates that the polluter should, in principle, bear the cost of pollution.

None of these references come anywhere close to assessing legal responsibility for the financial costs of the El Jiyeh oil spill to Israel. When Professor Richard Steiner, a marine professor at the University of Alaska, who participated in the assessment of the oil spill in Lebanon, asserted that the State of Israel should participate in a full and independent legal inquiry, establish a fund of $1 billion to reimburse all costs for oil-spill response, clean-up and economic losses caused, and implement a comprehensive restoration program, he had offered no legal justification for such a recommendation and had no expertise to make such a determination.

Other UN reports note that assessing blame and damages for environmental disasters were inapplicable when caused as a result of armed hostilities. Further, such provisions, in any case, do not relate to land-based incidents but only pertain to oil spills at sea. The provision for the United Nations Compensation Commission in the case of Kuwait is the only precedent major oil-spill compensation regime for spills arising from armed hostilities. It depended entirely on both the Security Council having jurisdiction and the prior finding of Iraqi responsibility for the hostilities.

Finally, the assessment of liabilities has precedents for other situations of oil spills during armed hostilities. For example, in the current war against IS involving the US and its allies, including Arab allies, on September 23rd, American aircraft bombed refineries and other oil installations in areas of Syria controlled by the Islamic State. In October it became known that the US was considering, as a serious option, bombing the oil pipelines over which IS had gained control, especially since IS generates $2 million per day to fund its aggressive efforts. My guess is that the U.S, and its allies are reticent, not so much because of the potential for environmental damage, but because of the precedent set that would invite sabotage initiatives by IS against American and Saudi pipelines.
In any case, you can make a large wager that neither the U.S. nor any of its Arab allies will be held to account for any environmental damage that takes place as a result of bombings targeting IS-controlled refineries and pipelines.

Tomorrow: The El Jiyeh UN Oil Spill: Financial and Political Fairness