Hamas

"We have seen how other nations , including the peoples of Vietnam and South Africa, persisted in their struggle until their quest for freedom and justice was accomplished. We are no different, our determination is no less profound, and our patience is no less abundant."
---Khaled Meshaal

Today's Los Angeles Times has an opinion piece by Fawaz Gerges that hits all the right points when it comes to understanding the role of Hamas in the Israeli-Palestinian conflict and what strategy outside parties might pursue should they truly want to facilitate the realization of the right to Palestinian self-determination:

Now that the guns have fallen silent and the dust is settling over Gaza, it is time to revisit the received wisdom in Israel, the United States and some European quarters that Hamas is a monolithic, Al Qaeda-like terrorist organization bent on Israel's destruction and that, therefore, Israel has no choice but to isolate Hamas and use overwhelming force to overcome it.

In fact, there is substantial evidence to the contrary. Far from a monolith, there are multiple clashing viewpoints and narratives within Hamas. Over the years, I have interviewed more than a dozen Hamas leaders inside and outside the Palestinian territories. Although, on the whole, Hamas' public rhetoric calls for the liberation of all historic Palestine, not only the territories occupied in 1967, a healthier debate occurs within.

Nuanced differences exist among Hamas' leaders, some of whom have repeatedly said they wanted a two-state solution.

In the last year, more and more Hamas moderates have called for tahdia (a minor truce) or hudna (a longer-term truce), which obviously implies some measure of recognition. Hamas moderates, in effect, are justifying their policy shift by using Islamic terms. In Islamic history, hudnas sometimes develop into permanent truces.

Considered a hard-liner, Khaled Meshaal, the top Hamas leader and head of its political bureau based in Syria, acknowledged as much. "We are realists," he said. And he acknowledged that there is "an entity called Israel."

Another senior Hamas leader, Ghazi Hamad, went even further than Meshaal, telling journalists last month that Hamas would be satisfied with ending Israeli control over the areas occupied in the 1967 Six-Day War -- the West Bank, Gaza and East Jerusalem. In other words, the organization would not hold out for the liberation of the land that currently includes Israel.

My conversations with Hamas' rank and file suggest that the militant organization has evolved considerably since the group unexpectedly won power in Gaza in free elections in 2006. Before that, Hamas was known for its suicide bombers, not its bureaucrats. But that had to change. "It is much more difficult to run a government than to oppose and resist Israeli occupation," a senior Hamas leader told me while on official business in Egypt in 2007. "If we do not provide the goods to our people, they'll disown us."

Despite its wooden and reactionary rhetoric, Hamas is a rational actor, a conclusion reached by former Mossad chief Ephraim Halevy, who also served as Ariel Sharon's national security advisor and who is certainly not an Israeli peacenik. The Hamas leadership has undergone a transformation "right under our very noses" by recognizing that "its ideological goal is not attainable and will not be in the foreseeable future," Halevy wrote recently in Yedioth Ahronoth. His verdict is that Hamas is now ready and willing to accept the establishment of a Palestinian state within the temporary borders of 1967.

Similarly, a U.S. Army Strategic Studies Institute analysis published just weeks before the launch of the Israeli offensive concluded that Hamas was considering a shift of its position. "Israel's stance toward [Hamas] ... has been a major obstacle to substantive peacemaking," concluded the study.

If Hamas is so eager to accept a two-state solution, why doesn't it simply announce that it recognizes Israel's existence and promise to negotiate a peace deal that allows the two countries to coexist? Apparently, Hamas' leaders believe that accepting Israel's presence is the last card in their arsenal. Why bargain it away before the talks even start? [....]

So far, the strategy of isolating and militarily confronting Hamas pursued by Israel and the Bush administration has not appeared to weaken the organization dramatically; if anything, it has strengthened hard-liners within and reinforced the culture of extremism and martyrdom.

There is no doubt that Hamas' reckless rocketing of populated Israeli towns, as well as its overheated rhetoric, have allowed Israeli leaders to portray their assault on Gaza as an extension of the global war on terrorism. But there are huge differences between Hamas and Al Qaeda, and a lot of bad blood. Hamas is a broad-based religious/nationalist resistance whose focus and violence is limited to Palestine/Israel, while Al Qaeda is a small, transnational terrorist group that has carried out attacks worldwide. Osama bin Laden and Ayman Zawahiri, Al Qaeda's chiefs, have vehemently criticized Hamas for its willingness to play politics and negotiate a truce with Israel. Hamas' leaders have responded that they know what is good for their people.

Unlike Al Qaeda, Hamas is not merely an armed militia but a viable social movement with an extensive social network and a large popular base that has been estimated at more than half a million supporters and sympathizers.

If it won't engage Hamas, the U.S. and Europe will never know if it can evolve into an open, tolerant and peaceful social movement. But most important, there can be no durable resolution of the 100-year-old conflict if Hamas is not consulted about peacemaking and if the Palestinians remain divided. Like it or hate it, Hamas is the most powerful organization in the Palestinian territories; it is deeply entrenched in society. Israel cannot wish it away.

To break the deadly embrace, the new U.S. administration and its European allies should support a unified Palestinian government that could negotiate peace with Israel. Some of Obama's advisors are on record saying that they favor dialogue with organizations such as Hamas, Hezbollah and the Muslim Brotherhood. Some even believe that the president may feel the same way, though he has not said so. If they are wrong, and Obama thinks that a "durable peace" can be achieved without talking to Hamas, he will be in for a rude awakening.

Having planned several in-depth posts on Hamas and terrorism, this essay's timing is fortuitous and thus will now serve as our introduction. Stay tuned.

Recommended Reading: Vermeule's Mechanisms of Democracy (2007)

Back in July of 2007 Professor Lawrence Solum informed us of Adrian Vermeule's Mechanisms of Democracy: Institutional Design Writ Small (for an example of the genre that treats 'institutional design writ large,' see Russell Hardin's Liberalism, Constitutionalism, and Democracy, 1999) through the valuable service provided by his weekly Legal Theory Bookworm. At the time, Solum wrote, "Once again, Vermeule is original and illuminating. It is one of those rare books that changes the angle from which we view familiar issues." Of course anyone interested in legal theory and philosophy of law takes notice of what Solum has to say on his blog, but it's taken me some time to get around to reading Vermeule's book. And in my case, the issues dealt with were not that familiar, although I agree with the judgment that Vermeule is "original and illuminating." Any work that comes with enthusiastic recommendations (as jacket blurbs) from Cass Sunstein and Robert E. Goodin will suffice for this reader and this book does not disappoint. With Solum, we quote from the book's description:

What institutional arrangements should a well-functioning constitutional democracy have?

Most of the relevant literatures in law, political science, political theory, and economics address this question by discussing institutional design writ large. In this book, Adrian Vermeule moves beyond these debates, changing the focus to institutional design writ small.

In established constitutional polities, Vermeule argues that law can and should - and to some extent already does - provide mechanisms of democracy: a repertoire of small-scale institutional devices and innovations that can have surprisingly large effects, promoting democratic values of impartial, accountable and deliberative government. Examples include legal rules that promote impartiality by depriving officials of the information they need to act in self-interested ways; voting rules that create the right kind and amount of accountability for political officials and judges; and legislative rules that structure deliberation, in part by adjusting the conditions under which deliberation occurs transparently or instead secretly. Drawing upon a range of social science tools from economics, political science, and other disciplines, Vermeule carefully describes the mechanisms of democracy and indicates the conditions under which they can succeed.

Vermeule both describes and proposes various sorts of rules and mechanisms that advance what he terms ('thin conceptions of') four core values of democractic constitutionalism: impartiality, accountability, transparency, and deliberation. For instance, with regard to a thin conception of impartiality, "veil rules" "dampen both information and bias, including bias arising from self-interest, at the same time, however, they also suppress decisionmakers' activity or energy." A straightforward illustration involves

a rule that requires an official with regulatory authority over the stock market to place her assets in a 'blind trust.' Even if the official is self-interested, she will be uncertain whether any given decision will increase or decrease the value of her portfolio. She will thus be unable to skew her decisions in order to promote her personal interests.

A "veil rule" brings home the truth of the proposition that "more information is not always better than less," in this case, by suppressing the particular bias that may arise from self-interest. (We won't here discuss the manner in which such a rule may 'suppress a decisionmaker's activity or energy.') The general point is enshrined in the hope that

Behind the veil...the decisionmaker afflicted with uncertainty will, for lack of ex post information about whose interests to favor, choose the option or rule that promotes the good of all those affected in an ex ante sense. The dearth of information produces decisions that track the output of an impartially motivated decisionmaker.

In fact, there is considerable value in subjecting decisionmakers to an "uncertainty constraint" that relies on withholding particular kinds of information. While we can't here do justice to the quality of Vermeule's analysis or the richness of his examples, particularly illuminating is the treatment of the "nondelegation doctrine" which, although largely unenforced since 1935 according to Vermeule, "persists as a principle of statutory interpretation." Rightly and forcefully I think, he argues that "the nondelegation principle has no appeal as a matter of democratic theory; it is irrelevant to accountability, or accountability is irrelevant to it." For the "core claim of nondelegation proponents," namely,

that delegation dilutes accountability, and is therefore nondemocratic--fails on two grounds: the executive also has democratic credentials, and legislators can be held fully accountable for the decision to delegate. The first point is that executive delegates are also accountable. In parliamentary systems with an executive who is elected by the elected legislators themselves, the executive is doubly accountable, both to the parliamentary majority or coalition, and to the voters in the executive's constituency. In systems with an independently elected executive, agencies are accountable to the President, who is more or less accountable to the voters--more anyway than the courts who are supposed to enforce the nondelegation doctrine.

Vermeule reminds American critics of delegation that the Presidency too has democratic credentials, and he is adamant that "all legislative lawmaking, direct or indirect, is on the same footing; delegation is not special."

Also rather intriguing is the pellucid discussion of "submajority rules" under which a voting minority is granted the affirmative power to change the status quo. Vermeule outlines "the important procedural and epistemic virtues" of rules that are, surprisingly (to me at any rate), "found in a range of legislatures, courts, international bodies, and other democratic institutions." A submajority rule is defined as a voting rule

that authorizes (i) a predefined numerical minority within a designated voting group (ii) to change the status quo (not merely to prevent change) (iii) regardless of the distribution of other votes.

In procedural terms, such rules can be counted among those "devices that empower minorities to force public accountability and transparency on the majority." With Jon Elster, we might describe the use of such rules as providing us with yet another example of man "as a globally maximizing machine," a characterization he traces back to Leibniz (in Elster's Ulysses and the Sirens: studies in rationality and irrationality, 1984 ed.): "Investment is perhaps the simplest example of global maximization that requires bypassing a local maximum: one step backwards in order to take two steps forward." In the instant case, what is prima facie anti-democratic (i.e., a step backwards) is, in the end, democracy enhancing: "Although the immediate valence of the rules is dramatically countermajoritarian, their downstream effects [i.e., two steps forward] may be justified in majoritarian terms." Perhaps the best know of such rules is the "famous 'Rule of Four' that allows four Justices to grant a writ of certiorari and thereby put a case on the Supreme Court's agenda."

Finally, and to return to the discussion of the nondelegation doctrine, Vermeule notes that

In a world without a nondelegation doctrine, the role of judges is to enforce congressional instructions, including instructions to delegate. The principal rule the American legal system uses to implement this scheme is the so-called Chevron doctrine, after an all-important Supreme Court decision in 1984.* Under Chevron, judges are to enforce clear congressional instructions, but where statutes are unclear or silent, judges presume that Congress has delegated policymaking authority to the executive.

Unfortunately, and despite the best intentions, Chevron has not proven efficient or very adept at promoting democratic accountability:

Chevron fares poorly because it attempts to allocate policymaking authority through soft-edged legal doctrine, making it vulnerable to a range of problems: conceptual imprecision, cognitive burdens that afflict boundedly rational judges, and manipulation on the part of biased judges.

Vermeule proposes a voting rule over the current doctrinal solution to "what is, after all, an institutional problem: the allocation of interpretive authority between agencies and courts when congressional instructions are silent or ambiguous." Specifically, Chevron could instead be implemented through voting rules:

A supermajority voting rule for multimember panels could state that on the nine-member Supreme Court, agencies will win against any claim that they have exceeded the bounds of their delegated authority, unless six Justices vote against the agency. [....] The basic idea...is to find voting mechanisms that implement Chevron's own goals of accountability at lower cost. In so doing, the hope is that small-scale changes in the design of judicial voting rules can produce large improvements in the system of democratic lawmaking.

*For recent articles with important discussions of Chevron, see William N. Eskridge, Jr. and Lauren E. Baer, "The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan," The Georgetown Law Journal, Vol. 96 (2008): 1083-1226, and Lisa Schultz Bressman, "Chevron's Mistake," Duke Law Journal, Vol. 58, No. 4 (January 2009): 549-621.

The WTO, Core ILO Labor Standards, & Human Rights

The continuing dialogue between organised labour, the WTO and some member states indicates two things. Firstly, labour issues remain on the agenda. Their 'solution' may lie at the WTO or in a revitalised ILO or in unilateral action in developed economies. Whatever the case, the concerns of labour will not simply disappear. Secondly, there is an increasing recognition that future liberalisation and the stability of the international trading system is partially linked to the degree to which such institutions and initiatives can accommodate social concerns. The fiction of trade agreements being the preserve of states has given way to a grudging consideration of their roots in civil society.---Robert O'Brien, et al., Contesting Global Governance... (2000): 108.

At Opinio Juris, perhaps the premier blog for international law and politics among a fast-growing blogroll in the field, Roger Alford has a post that explains to us how the rules of the World Trade Organization (WTO) perversely express de jure and de facto preference for environmental protection over the protection of basic human rights. The WTO is one of the three so-called Bretton Woods Institutions, the other two being the International Monetary Fund (IMF, or 'the Fund') and the World Bank* (i.e., the World Bank Group, or 'the Bank;' it should be noted that more often than not what is referred to here is the International Bank for Reconstruction and Development [IRBD], which is but one member of the group collectively called 'the Bank'). Alford explains precisely why the environment is accorded more legal protection, with concrete policy consequences and implications, than the protection of basic human rights, in particular, those expressed in the core labor standards established by the International Labour Organisation (ILO):

1. Freedom of association and right to collective bargaining
2. Elimination of all forms of forced or compulsory labour
3. Effective abolition of child labour
4. Elimination of discrimination in employment and occupation

Before looking at Alford's precise explanation, some background history and information are in order. The ILO is one of the international organizations that helped inspire the controversial but increasingly important (if only because of the current global economic crisis) International Covenant on Economic, Social and Cultural Rights (ICESCR), which itself must be examined in light of its similarities and differences with the International Covenant on Civil and Political Rights ICCPR) (something we can't do here but see Ch. 4, 'Economic and Social Rights,' in Steiner and Alston below in References and Further Reading):

The historical recognition of economic and social rights are diffuse. Those rights have drawn strength from the injunctions expressed in different religious traditions to care for those in need and those who cannot look after themselves. In Catholicism, papal encyclicals have long promoted the importance of the right to subsistence with dignity, while 'liberation theology' has sought to build upon this 'preferential option for the poor.' Virtually all of the major religions manifest comparable concern for the poor and oppressed. Other sources include philosophical analyses and political theory from authors as diverse as Thomas Paine, Karl Marx, Immanuel Kant and John Rawls; the political programmes of the nineteenth century Fabian socialists in Britain, Chancellor Bismarck in Germany (who introduced social insurance schemes in the 1880s), and the New Dealers in the United States; the first and subsequent Soviet constitutions, and the 1919 Constitution of the Weimar Republic (embodying the Wohlfahrtsstaat concept).

The most appropriate starting point [for tracing the 'evolution of these ideas in international human rights law'] is the International Labour Organisation (ILO). Established by the Treaty of Versailles in 1919 to abolish the 'injustice, hardship and privation' which workers suffered and to guarantee 'fair and humane conditions of labour,' it was conceived as the response of Western countries to the ideologies of Bolshevism and Socialism arising out of the Russian Revolution. In the inter-war years, the ILO adopted international minimum standards in relation to a wide range of matters which now fall under the rubric of economic and social rights. They include, inter alia, conventions dealing with freedom of association and the right to organize trade unions, forced labour, minimum working age, hours of work, weekly rest, sickness protection, accident insurance, invalidity and old-age insurance, and freedom from discrimination in employment. The Great Depression of the early 1930s emphasized the need for social protection of those who were unemployed and gave a strong impetus to full employment policies such as those advocated by Keynes in his General Theory of Employment, Interest and Money (1936). (Steiner and Alston: 242)



Now let's take a somewhat cursory look at US trade policy and the promotion of labor rights, relying on a summary provided by Bob Hepple in Labour Laws and Global Trade (2005):

Since the 1980s the promotion of labour rights in developing countries has become an increasingly important part of US trade policy. This is the result of pressure from labour and human rights activists in the US and marks a shift from the older purely protectionist campaigns of US unions to 'stop imports' or 'buy American.' The spate of legislation designed to protect the rights of workers in foreign countries has been characterized by some critics as 'aggressive unilateralism,' 'global bullying,' and disguised protectionism.

The first major legislative achievement of the pressure groups was a labour rights amendment to the US Generalised System of Preferences (GSP) adopted by Congress and signed by President Reagan in 1984. The GSP, as originally enacted by Title V of the Trade Act 1974, aims to provide the developing countries 'fair and reasonable access' into the US for specified products. Under it, more than 3000 products from more than 145 developing countries have duty-free access to US markets. The GSP has been renewed on several occasions most recently 31 December 2006. The labour rights provision prohibits access to US markets to any country 'that is not taking steps to afford internationally recognised worker rights to its workers (including those in export processing zones).' The labour clause in the GSP was followed by a series of other measures which make trade and investment conditional upon observance of labour rights. [....]

Hepple proceeds to outline a number of both positive and negative effects of the GSP and subsequent measures on labor rights. But more to the point for our purposes here, he informs us that

...[C]ritics have argued that unilateralism is a fundamentally flawed approach for three principal reasons: first, it undermines the rule of international law by the use or threat of sanctions against a country for failing to adopt international standards which it has not accepted and do not form part of customary international law; secondly, the processes are ineffective; thirdly, the motivation for unilateral measures is primarily protectionist and political; and finally, there exist suitable alternatives.

The US GSP legislation does not use the ILO concept of 'core labour standards.' Instead, it [i.e., the legislation] applies to 'internationally recognised worker rights.' This concept is used either expressly or by reference to virtually all the US legislative measures. The first four of these rights correspond almost exactly to those in the 1998 ILO Declaration, but the right against all forms of discrimination, which features in the ILO Declaration, is excluded. This important omission was the result of a political compromise on the labour rights amendment in 1984. The Reagan administration successfully resisted the proposal to include discrimination because of their fear of antagonising oil-producing states which practise discrimination against women and non-Muslims, and in order to protect Israel which was accused of discrimination against Palestinian workers. The Administration also insisted on softening language in the original draft which required the mandatory suspension of those who violated rights, so as to make it sufficient for a country to be 'taking steps' to achieve these rights. This was designed to give the Administration maximum discretion in furthering the foreign policy interests of the US. The definition does include 'acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health,' which are not 'core' ILO standards. But the language leaves a wide discretion for the Administration to decide what is 'acceptable.'

[In addition], critics point out that the US is demanding standards of others that it has not accepted as part of its own international obligations. The US has ratified only 14 ILO conventions (2 no longer in force). These include those on forced labour (C.105) and the worst forms of child labour (C.182), but not any of the other 'core' ILO conventions, nor those relating to wages, hours of work or occupational safety and health (with the exception of safety and health in mines [C.105]). Moreover, many of the standards demanded have not yet been accepted by the countries on which US practice imposes them. Nor can the US claim to be enforcing customary international law. ...[I]t is unlikely that any of the ILO conventions apart from those relating to slave and forced labour can be said to be part of customary international law.

Moreover, the interpretations of 'internationally recognised worker rights' are not consistent with the interpretations made by the ILO supervisory bodies. [....] The result of these idiosyncratic interpretations is that attempts to create a consistent set of international labour standards is frustrated.

That said, we can better objectively appreciate Alford's post:

The general exceptions of the WTO provide for various exceptions to the core rules against non-discrimination, quotas, import bans and the like. But not all the exceptions are the same, and WTO jurisprudence has devolved to the absurd point that the environment is more important than human rights.

One of the exceptions, Article XX(g), provides that nothing in the WTO obligations shall prevent Member States from adopting or enforcing measures “relating to the conservation of exhaustible natural resources….” This means that any measure that relates to a legitimate policy of conserving natural resources can invoke Article XX(g) and be exempt from WTO obligations. Thus, the United States could restrict the importation of products that cause air pollution, threaten global warming, or diminish the population of endangered species. Of course, it must implement these measures in a non-discriminatory manner and must impose similar obligations on domestic products. But subject to these limitations, any measure that relates to conservation of exhaustible natural resources is acceptable.

Not so with human rights. Article XX(b) provides that nothing in the WTO obligations shall prevent Member States from adopting or enforcing measures “necessary to protect human … life or health….” The requirement that the measure be “necessary” rather than “relate to” has been interpreted to impose an extremely high hurdle for Member States seeking to promote concerns such as human rights. Essentially, for a measure to be “necessary” a Member State must show that (1) no measures consistent with the WTO could have been employed; and (2) no less trade restrictive measures inconsistent with the WTO could have been employed. In other words, when it comes to human rights, alternative measures that are not trade distorting must first be employed.

Permit me a few reflections on Professor Alford's important conclusion that, for example, according to WTO rules, "you can ban the importation of tuna if it harms dolphins, but not because the fishermen who caught the tuna were employed in a manner inconsistent with core ILO labor standards."

One of the reasons perhaps for the comparative weakness of the Article XX(b) has to do with the pernicious influence of economists on the WTO for, as Sean Turnell reminds us in his paper, “Core Labour Standards and the WTO,” “Using the WTO as the body to police core labour standards is generally opposed by economists.” In this case, it might be fair to say criteria derived from the neo-classical conception of welfare economics trumps fairness criteria generally (as in Kaplow and Shavell’s Fairness versus Welfare, 2002; see Kimberly Ferzan’s excellent review of their book here; see too S.M. Amadae's Rationalizing Capitalist Democracy: The Cold War Origins of Rational Choice Liberalism, 2003).

One of several reasons why the failure to meaningfully implement core ILO standards is disturbing is owing to the fact that ”selective regulation of trade and labour...opens the theoretical door to a prisoners’ dilemma in labour standards and the potential for a ‘race to the bottom.’” Turnell notes that in their book, The International Regulation of Trade (1999 ed.), Trebilcock and Howse argued for a “‘dynamic’ interpretation of Article XX that recognises ‘the evolution of human rights as a core element in public morality [XX(a)] in many post-war societies and at the international level.’ Accordingly, in their analysis, ‘public morals’ in the context of Article XX,’ should extend to universal human rights, including labour rights.’ Under Article XX, enforcement of core labour standards could operate through a number of measures, including (at last resort) the withdrawal of WTO right and obligations.” Ironically, it was a ruling concerning environmental issues, namely the Shrimp/Turtle case, that may serve as precedent for the incorporation of core labor standards, for when the US lost WTO ruling on appeal, it was held that

The appeal was lost on the basis that the US had used restrictive measures that constituted ‘arbitrary and unjustifiable discrimination between members of the WTO, contrary to the requirements of the chapeau of Article XX’ (emphasis added). Significantly, however, the Appellate Body of the WTO found that the environmental objective of the US was legitimate under Article XX. In short, the problem in this case was unjustifiable discrimination, not the use of Article XX in protecting objectives that the WTO allowed as exceptions to its agreements. If an obvious precedent for the core labour standards campaign is created in the ‘Turtles Case,’ so too is the potential role of the ILO in ensuring justifiable discrimination.

But Professor Alford has well-explained for us precisely why Shrimp/Turtle will not likely serve as "an obvious precedent for the core labour standards campaign."

Under "References and Further Reading" I list some material that can help us think deeper about the question of linkage between human rights** generally, ILO labour standards, and the WTO. In my admittedly amateur assessment of the literature I've read (which is far from exhaustive or systematic), the most provocative work I've encountered is by Ernst-Ulrich Petersmann. First, there's his contribution, "Bridging Foundations: Human Rights and International Trade Law," in Thomas Cottier, Joost Pauwelyn and Elisabeth Burgi, eds., Human Rights and International Trade (2005): 29-94. Then, there's his recent article, "Human Rights, International Economic Law and 'Constitutional Justice,'" in the European Journal of International Law, (2008) Vol. 19, No. 4: 769-798, as well as his response to what seem (to me at any rate) to be rather uncharitable if not churlish critics. I’m quite intrigued by Petersmann’s work and a bit mystified as to why some otherwise very intelligent scholars in the field seem unable to comprehend it within the letter if not the spirit of the Principle of Charity. Perhaps there’s some sub-textual or background academic squabble I’m not privy to.

By way of a taste of Petersmann's highly original and sophisticated argument(s), the following are the "three normative premises on which all [of his] arguments are based...:"

First, the today universal recognition--not only in the Preambles of all UN human rights conventions but also in regional and many national human rights instruments and state practices--of 'the inherent dignity and of the equal and inalienable rights of all members of the human family (as) the foundation of freedom, justice and peace in the world' justifies the claim that respect for human dignity and liberty has become the ius cogens core of 'inalienable human rights' limiting all governance powers at national and intergovernmental levels.

Secondly, human life in dignity, liberty, and social responsibility requires legal protection for individual freedom to participate in markets (e.g., as dialogues about values, decentralized information, coordination and discovery mechanisms) and to exchange the fruits of one's labour for scarce goods and services needed for personal self-development. Specialization (e.g., in families, societies) and exchange are among the most basic human activities. While some markets have a 'price' rather than 'dignity,' others are of existential importance for individual, social, and democratic self-development. Human rights cannot be effectively protected without due regard to the economic insight that personal freedom is not only a fundamental moral and constitutional principle, but also the most important instrument for satisfying human needs.

Thirdly, even though constitutional contracts for the collective supply of public goods may legitimately differ among rational citizens due to different value preferences and historical experiences (cf. the diversity of agreed, specific human rights guarantees), respect for human dignity requires treating individuals as legal subjects and 'market citizens' (e.g., respect for 'indivisible' individual liberty to decide which equal freedoms an individual values most). As explained by Immanuel Kant more than 200 years ago, the moral imperative requiring legal protection of maximum equal freedom and democratic peace cannot be realized without complementary national, international, and cosmopolitan guanrantees.

* Please see the BIC (Bank Information Center), which "partners with civil society in developing and transition countries to influence the World Bank and other international financial institutions to promote social and economic justice and ecological sustainability."

**See the many links available at the Business and Human Rights Resource Centre.

References and Further Reading:

• Aaronson, Susan Ariel and Jamie M. Zimmerman. Trade Imbalance: The Struggle to Weigh Human Rights Concerns in Trade Policymaking. Cambridge, UK: Cambridge University Press, 2007.
• Alston, Philip, ed. Labour Rights as Human Rights. New York: Oxford University Press, 2005.
• Alston, Philip, and Mary Robinson, eds. Human Rights and Development: Toward Mutual Reinforcement. New York: Oxford University Press, 2005.
• Barry, Christian and Sanjay G. Reddy, "Just Linkage: International Trade and Just Labor Standards," August 25, 2005. Available: http://organizations.lawschool.cornell.edu/ilj/symposium/papers/just_linkage.pdf
• Basu, Kaushik, et al., eds. International Labor Standards: History, Theory and Policy Options. Malden, MA: Blackwell, 2003.
• Bossche, Peter van den. The Law of the World Trade Organization: Text, Cases and Materials. Cambridge, UK: Cambridge University Press, 2nd ed., 2008.
• Caney, Simon. Justice Beyond Borders: A Global Political Theory. New York: Oxford University Press, 2005.
• Compa, Lance A. and Stephen F. Diamond, eds. Human Rights, Labor Rights, and International Trade. Philadelphia, PA: University of Pennsylvania Press, 2003.
• Cottier, Thomas, Joost Pauwelyn, and Elisabeth Burgi, eds. Human Rights and International Trade. New York: Oxford University Press, 2005.
• Darrow, Mac. Between Light and Shadow: The World Bank, the International Monetary Fund, and International Human Rights Law. Oxford, UK: Hart, 2003.
• Dasgupta, Partha. An Inquiry into Well-Being and Destitution. New York: Oxford University Press, 1993.
• De Greiff, Pablo and Ciaran Cronin, eds. Global Justice and Transnational Politics. Cambridge, MA: MIT Press, 2002.
• Donnelly, Jack. Universal Human Rights in Theory & Practice. Ithaca, NY: Cornell University Press, 2nd ed., 2003.
• Elson, Diane. "Market Socialism or Socialization of the Market? New Left Review, No. 172 (November/December 1988): 3-44.
• Elster, Jon and Karl Ove Moene, eds. Alternatives to Capitalism. Cambridge, UK: Cambridge University Press, 1989.
• Flanagan, Robert J. Globalization and Labor Conditions: Working Conditions and Worker Rights in a Global Economy. New York: Oxford University Press, 3rd ed., 2006.
• Forsythe, David P. Human Rights in International Relations. Cambridge, UK: Cambridge University Press, 2000.
• Garcia, Frank J. Trade, Inequality and Justice: Toward a Liberal Theory of Just Trade. Ardsley, NY: Transnational, 2003.
• Garcia, Frank J. "Global Justice and the Bretton Woods Institutions," Journal of International Economic Law 10, No. 3 (September 2007): 461-481.
• Gross, James A., ed. Workers’ Rights as Human Rights. Ithaca, NY: Cornell University Press, 2003.
• Harrison, James. The Human Rights Impact of the World Trade Organisation. Oxford, UK: Hart, 2007.
• Harrod, Jeffrey and Robert O'Brien, eds. Global Unions? Theory and Strategies of Organized Labour in the Global Political Economy. New York: Routledge, 2002.
• Harvey, David. A Brief History of Neoliberalism. New York: Oxford University Press, 2005.
• Hausman, Daniel M. and Michael S. McPherson. Economic Analysis, Moral Philosophy, and Public Policy. Cambridge, UK: Cambridge University Press, 2nd ed., 2006.
• Heintz, James. "Global Labor Standards: Their Impact and Implementation" (2002) PERI Working Paper No. 46. Available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=353365
• Hepple, Bob. Labour Laws and Global Trade. Oxford, UK and Portland, OR: Hart, 2005.
• Hestermeyer, Holger P. Human Rights and the WTO: The Case of Patents and Access to Medicines. New York: Oxford University Press, 2007.
• Hockett, Robert. "Three (Potential) Pillars of Transnational Economic Justice: The Bretton Woods Institutions as Guarantors of Global Equal Treatment and Market Completion," in Christian Barry and Thomas W. Pogge, eds. Global Institutions and Responsibilities: Achieving Global Justice. Malden, MA: Blackwell, 2005: 90-123.
• Howse, Robert and Ruti G. Teitel. "Beyond the Divide: The Covenant on Economic, Social and Cultural Rights and the World Trade Organization," (April 2007), Dialogue on Globalization, Occasional Paper, Geneva: Friedrich-Ebert-Stiftung. Available: http://library.fes.de/pdf-files/iez/global/04572.pdf
• Nussbaum, Martha C. Women and Human Development: The Capabilities Approach. Cambridge, UK: Cambridge University Press, 2000.
• O'Brien, Robert, Anne Marie Goetz, Jan Aaart Scholte and Marc Williams. Contesting Global Governance: Multilateral Economic Institutions and Global Social Movements. Cambridge, UK: Cambridge University Press, 2000.
• Patterson, Dennis and Ari Afilalo. The New Global Trading Order: The Evolving State and the Future of Trade. Cambridge, UK: Cambridge University Press, 2008.
• Pollin, Robert. "Financial Structures and Egalitarian Economic Policy," PERI, University of Massachusetts, Amherst. Working Paper Series No. 182 (December 1995). New Left Review I/214 (November-December 1995). Available: http://www.peri.umass.edu/fileadmin/pdf/working_papers/working_papers_151-200/WP182.pdf
• Raz, Joseph. The Morality of Freedom. New York: Oxford University Press, 1986.
• Robinson, William I. A Theory of Global Capitalism: Production, Class, and State in a Transnational World. Baltimore, MD: Johns Hopkins University Press, 2004.
• Rubin, Neville, Evance Kalula and Bob Hepple, eds. Code of International Labour Law, 2 Vols. Cambridge, UK: Cambridge University Press, 2005.
• Saad-Filho, Alfredo and Deborah Johnson, eds. Neoliberalism: A Critical Reader. London: Pluto Press, 2005.
• Santos, Boaventura de Sousa and Cesar A. Rodriguez-Garavito, eds. Law and Globalization from Below: Towards a Cosmopolitan Legality. Cambridge, UK: Cambridge University Press, 2005.
• Schweickart, David. Against Capitalism. Boulder, CO: Westview Press, 1996.
• Sen, Amartya. Development as Freedom. New York: Alfred A. Knopf, 1999.
• Shaikh, Anwar, ed. Globalization and the Myths of Free Trade: History, Theory, and Empirical Evidence. New York: Routledge, 2007.
• Steiner, Henry J. and Philip Alston, eds. International Human Rights in Context: Law, Politics, Morals (Texts and Materials). New York: Oxford University Press, 2nd ed., 2000.
• Unger, Roberto Mangabeira. Free Trade Reimagined: The World Division of Labor and the Method of Economics. Princeton, NJ: Princeton University Press, 2007.
• United States--Import Prohibitions on Certain Shrimp and Shrimp Products, WTO Appellate Body Report, WT/DS58/AB/RW, 22 October 2001 (Shrimp/Turtle II).
• Wright, Erik Olin, et al., The Debate on Classes. London: Verso, 1989.
  

Update: Professor Steven Schwinn of the Constitutional Law Prof Blog has kindly informed me of a title that looks like an intriguing if not important addition to the above list: Raj Bhala's Trade, Development and Social Justice. Durham, NC: Carolina Academic Press, 2003.

Uri Avnery: War in Gaza & Israeli-Arab Peace

Uri Avnery is an Israeli writer and peace activist who founded the Gush Shalom movement. He has served three terms as an MP at the Knesset. More biographical imformation about him is available below in his "memo" to the President-Elect, Barack Obama, first published in the Jewish periodical Tikkun ('a bimonthly critique of politics, culture and society' that describes itself as 'the pre-eminent North American publisher of analytical articles on Israel/Palestine, Jewish culture, and the intersection of religion and politics in the United States'). The first piece is on the invasion of Gaza, the second is the aforementioned letter to the President-elect.

How Many Divisions?

Hamas is deeply rooted in the population – not only as a resistance movement fighting the foreign occupier – but also as a political and religious body that provides social, educational and medical services, notes Uri Avnery.

Nearly seventy years ago, in the course of World War II, a heinous crime was committed in the city of Leningrad. For more than a thousand days, a gang of extremists called “the Red Army” held the millions of the town’s inhabitants hostage and provoked retaliation from the German Wehrmacht from inside the population centers. The Germans had no alternative but to bomb and shell the population and to impose a total blockade, which caused the death of hundreds of thousands.

This the description that would now appear in the history books – if the Germans had won the war.

Absurd? No more than the daily descriptions in our media, which are being repeated ad nauseam: the Hamas terrorists use the inhabitants of Gaza as “hostages” and exploit the women and children as “human shields”, they leave us no alternative but to carry out massive bombardments, in which, to our deep sorrow, thousands of women, children and unarmed men are killed and injured.

In this war, as in any modern war, propaganda plays a major role. The disparity between the forces, between the Israeli army - with its airplanes, gunships, drones, warships, artillery and tanks - and the few thousand lightly armed Hamas fighters, is one to a thousand, perhaps one to a million. In the political arena the gap between them is even wider. But in the propaganda war, the gap is almost infinite.

Almost all the Western media initially repeated the official Israeli propaganda line. They almost entirely ignored the Palestinian side of the story, not to mention the daily demonstrations of the Israeli peace camp. The rationale of the Israeli government (“The state must defend its citizens against the Qassam rockets”) has been accepted as the whole truth. The view from the other side, that the Qassams are a retaliation for the siege that starves the one and a half million inhabitants of the Gaza Strip, was not mentioned at all.

Only when the horrible scenes from Gaza started to appear on Western TV screens, did world public opinion gradually begin to change.

True, Western and Israeli TV channels showed only a tiny fraction of the dreadful events that appear 24 hours every day on Aljazeera’s Arabic channel, but one picture of a dead baby in the arms of its terrified father is more powerful than a thousand elegantly constructed sentences from the Israeli army spokesman. And that is what is decisive, in the end.

War – every war – is the realm of lies. Whether called propaganda or psychological warfare, everybody accepts that it is right to lie for one’s country. Anyone who speaks the truth runs the risk of being branded a traitor.

The trouble is that propaganda is most convincing for the propagandist himself. And after you convince yourself that a lie is the truth and falsification reality, you can no longer make rational decisions.

An example of this process surrounds the most shocking atrocity of this war so far: the shelling of the UN Fakhura school in Jabaliya refugee camp.

Immediately after the incident became known throughout the world, the army “revealed” that Hamas fighters had been firing mortars from near the school entrance. As proof they released an aerial photo which indeed showed the school and the mortar. But within a short time the official army liar had to admit that the photo was more than a year old. In brief: a falsification.

Later the official liar claimed that “our soldiers were shot at from inside the school”. Barely a day passed before the army had to admit to UN personnel that that was a lie, too. Nobody had shot from inside the school, no Hamas fighters were inside the school, which was full of terrified refugees.

But the admission made hardly any difference anymore. By that time, the Israeli public was completely convinced that “they shot from inside the school”, and TV announcers stated this as a simple fact.

So it went with the other atrocities. Every baby metamorphosed, in the act of dying, into a Hamas terrorist. Every bombed mosque instantly became a Hamas base, every apartment building an arms cache, every school a terror command post, every civilian government building a “symbol of Hamas rule”. Thus the Israeli army retained its purity as the “most moral army in the world”.

The truth is that the atrocities are a direct result of the war plan. This reflects the personality of Ehud Barak – a man whose way of thinking and actions are clear evidence of what is called “moral insanity”, a sociopathic disorder.

The real aim (apart from gaining seats in the coming elections) is to terminate the rule of Hamas in the Gaza Strip. In the imagination of the planners, Hamas is an invader which has gained control of a foreign country. The reality is, of course, entirely different.

The Hamas movement won the majority of the votes in the eminently democratic elections that took place in the West Bank, East Jerusalem and the Gaza Strip. It won because the Palestinians had come to the conclusion that Fatah’s peaceful approach had gained precisely nothing from Israel - neither a freeze of the settlements, nor release of the prisoners, nor any significant steps toward ending the occupation and creating the Palestinian state. Hamas is deeply rooted in the population – not only as a resistance movement fighting the foreign occupier, like the Irgun and the Stern Group in the past – but also as a political and religious body that provides social, educational and medical services.

From the point of view of the population, the Hamas fighters are not a foreign body, but the sons of every family in the Strip and the other Palestinian regions. They do not “hide behind the population”, the population views them as their only defenders.

Therefore, the whole operation is based on erroneous assumptions. Turning life into living hell does not cause the population to rise up against Hamas, but on the contrary, it unites behind Hamas and reinforces its determination not to surrender. The population of Leningrad did not rise up against Stalin, any more than the Londoners rose up against Churchill.

He who gives the order for such a war with such methods in a densely populated area knows that it will cause dreadful slaughter of civilians. Apparently that did not touch him. Or he believed that “they will change their ways” and “it will sear their consciousness”, so that in future they will not dare to resist Israel.

A top priority for the planners was the need to minimize casualties among the soldiers, knowing that the mood of a large part of the pro-war public would change if reports of such casualties came in. That is what happened in Lebanon Wars I and II.

This consideration played an especially important role because the entire war is a part of the election campaign. Ehud Barak, who gained in the polls in the first days of the war, knew that his ratings would collapse if pictures of dead soldiers filled the TV screens.

Therefore, a new doctrine was applied: to avoid losses among our soldiers by the total destruction of everything in their path. The planners were not only ready to kill 80 Palestinians to save one Israeli soldier, as has happened, but also 800. The avoidance of casualties on our side is the overriding commandment, which is causing record numbers of civilian casualties on the other side.

That means the conscious choice of an especially cruel kind of warfare – and that has been its Achilles heel.

A person without imagination, like Barak (his election slogan: “Not a Nice Guy, but a Leader”) cannot imagine how decent people around the world react to actions like the killing of whole extended families, the destruction of houses over the heads of their inhabitants, the rows of boys and girls in white shrouds ready for burial, the reports about people bleeding to death over days because ambulances are not allowed to reach them, the killing of doctors and medics on their way to save lives, the killing of UN drivers bringing in food. The pictures of the hospitals, with the dead, the dying and the injured lying together on the floor for lack of space, have shocked the world. No argument has any force next to an image of a wounded little girl lying on the floor, twisting with pain and crying out: “Mama! Mama!”

The planners thought that they could stop the world from seeing these images by forcibly preventing press coverage. The Israeli journalists, to their shame, agreed to be satisfied with the reports and photos provided by the Army Spokesman, as if they were authentic news, while they themselves remained miles away from the events. Foreign journalists were not allowed in either, until they protested and were taken for quick tours in selected and supervised groups. But in a modern war, such a sterile manufactured view cannot completely exclude all others – the cameras are inside the strip, in the middle of the hell, and cannot be controlled. Aljazeera broadcasts the pictures around the clock and reaches every home.

The battle for the TV screen is one of the decisive battles of the war.

Hundreds of millions of Arabs from Mauritania to Iraq, more than a billion Muslims from Nigeria to Indonesia see the pictures and are horrified. This has a strong impact on the war. Many of the viewers see the rulers of Egypt, Jordan and the Palestinian Authority as collaborators with Israel in carrying out these atrocities against their Palestinian brothers.

The security services of the Arab regimes are registering a dangerous ferment among the peoples. Hosny Mubarak, the most exposed Arab leader because of his closing of the Rafah crossing in the face of terrified refugees, started to pressure the decision-makers in Washington, who until that time had blocked all calls for a cease-fire. These began to understand the menace to vital American interests in the Arab world and suddenly changed their attitude – causing consternation among the complacent Israeli diplomats.

People with moral insanity cannot really understand the motives of normal people and must guess their reactions. “How many divisions has the Pope?” Stalin sneered. “How many divisions have people of conscience?” Ehud Barak may well be asking.

As it turns out, they do have some. Not numerous. Not very quick to react. Not very strong and organized. But at a certain moment, when the atrocities overflow and masses of protesters come together, that can decide a war.

The failure to grasp the nature of Hamas has caused a failure to grasp the predictable results. Not only is Israel unable to win the war, Hamas cannot lose it.

Even if the Israeli army were to succeed in killing every Hamas fighter to the last man, even then Hamas would win. The Hamas fighters would be seen as the paragons of the Arab nation, the heroes of the Palestinian people, models for emulation by every youngster in the Arab world. The West Bank would fall into the hands of Hamas like a ripe fruit, Fatah would drown in a sea of contempt, the Arab regimes would be threatened with collapse.

If the war ends with Hamas still standing, bloodied but unvanquished, in face of the mighty Israeli military machine, it will look like a fantastic victory, a victory of mind over matter.

What will be seared into the consciousness of the world will be the image of Israel as a blood-stained monster, ready at any moment to commit war crimes and not prepared to abide by any moral restraints. This will have severe consequences for our long-term future, our standing in the world, our chance of achieving peace and quiet.

In the end, this war is a crime against ourselves too, a crime against the State of Israel.

Available at Middle East Online and at Gush Shalom.

Memo For Obama

06/12/08
For: the President-Elect, Mr. Barack Obama.
From: Uri Avnery, Israel.

The following humble suggestions are based on my 70 years of experience as an underground fighter, special forces soldier in the 1948 war, editor-in-chief of a newsmagazine, member of the Knesset and founding member of a peace movement:

-1- As far as Israeli-Arab peace is concerned, you should act from Day One.

-2- Israeli elections are due to take place in February 2009. You can have an indirect but important and constructive impact on the outcome, by announcing your unequivocal determination to achieve Israeli-Palestinian, Israeli-Syrian and Israeli-all-Arab peace in 2009.

-3- Unfortunately, all your predecessors since 1967 have played a double game. While paying lip service to peace, and sometimes going through the motions of making some effort for peace, they have in practice supported our governments in moving in the very opposite direction. In particular, they have given tacit approval to the building and enlargement of Israeli settlements in the occupied Palestinian and Syrian territories, each of which is a land mine on the road to peace.

-4- All the settlements are illegal in international law. The distinction sometimes made between “illegal” outposts and the other settlements is a propaganda ploy designed to obscure this simple truth.

-5- All the settlements since 1967 have been built with the express purpose of making a Palestinian state – and hence peace - impossible, by cutting the territory of the prospective State of Palestine into ribbons. Practically all our government departments and the army have openly or secretly helped to build, consolidate and enlarge the settlements – as confirmed by the 2005 report prepared for the government (!) by Lawyer Talia Sasson.

-6- By now, the number of settlers in the West Bank has reached some 250,000 (apart from the 200,000 settlers in the Greater Jerusalem area, whose status is somewhat different.) They are politically isolated, and sometimes detested by the majority of the Israel public, but enjoy significant support in the army and government ministries.

-7- No Israeli government would dare to confront the concentrated political and material might of the settlers. Such a confrontation would need very strong leadership and the unstinting support of the President of the United States to have any chance of success.

-8- Lacking these, all “peace negotiations” are a sham. The Israeli government and its US backers have done everything possible to prevent the negotiations with both the Palestinians and the Syrians from reaching any conclusion, for fear of provoking a confrontation with the settlers and their supporters. The present “Annapolis” negotiations are as hollow as all the preceding ones, each side keeping up the pretense for its own political interests.

-9- The Clinton administration, and even more so the Bush administration, allowed the Israeli government to keep up this pretense. It is therefore imperative to prevent members of these administrations from diverting your Middle Eastern policy into the old channels.

-10- It is important for you to make a complete new start, and to state this publicly. Discredited ideas and failed initiatives – such as the Bush “vision”, the Road Map, Annapolis and the like – should by thrown into the junkyard of history.

-11- To make a new start, the aim of American policy should be stated clearly and succinctly. This should be: to achieve a peace based on the Two-State Solution within a defined time-span (say by the end of 2009).

-12- It should be pointed out that this aim is based on a reassessment of the American national interest, in order to extract the poison from American-Arab and American-Muslim relations, strengthen peace-oriented regimes, defeat al-Qaeda-type terrorism, end the Iraq and Afghanistan wars and achieve a viable accommodation with Iran.

-13- The terms of Israeli-Palestinian peace are clear. They have been crystallized in thousands of hours of negotiations, conferences, meetings and conversations. They are:

• 13.1 A sovereign and viable State of Palestine will be established side by side with the State of Israel.
• 13.2 The border between the two states will be based on the pre-1967 Armistice Line (the “Green Line”). Insubstantial alterations can be arrived at by mutual agreement on an exchange of territories on a 1:1 basis.
• 13.3 East Jerusalem, including the Haram-al-Sharif (“Temple Mount”) and all Arab neighborhoods will serve as the capital of Palestine. West Jerusalem, including the Western Wall and all Jewish neighborhoods, will serve as the capital of Israel. A joint municipal authority, based on equality, may be established by mutual consent to administer the city as one territorial unit.
• 13.4 All Israeli settlements – except any which might be joined to Israel in the framework of a mutually agreed exchange of territories - will be evacuated (see 15 below).
• 13.5 Israel will recognize in principle the right of the refugees to return. A Joint Commission for Truth and Reconciliation, composed of Palestinian, Israeli and international historians, will examine the events of 1948 and 1967 and determine who was responsible for what. Each individual refugee will be given the choice between (1) repatriation to the State of Palestine, (2) remaining where he/she is living now and receiving generous compensation, (3) returning to Israel and being resettled, (4) emigrating to any other country, with generous compensation. The number of refugees who will return to Israeli territory will be fixed by mutual agreement, it being understood that nothing will be done that materially alters the demographic composition of the Israeli population. The large funds needed for the implementation of this solution must be provided by the international community in the interest of world peace. This will save much of the money spent today on military expenditure and direct grants from the US.
• 13.6 The West Bank, East Jerusalem and the Gaza Strip constitute one national unit. An extraterritorial connection (road, railway, tunnel or bridge) will connect the West Bank with the Gaza Strip.
• 13.7 Israel and Syria will sign a peace agreement. Israel will withdraw to the pre-1967 line and all settlements on the Golan Heights will be dismantled. Syria will cease all anti-Israeli activities conducted directly or by proxy. The two parties will establish normal relations between them.
• 13.8 In accordance with the Saudi Peace Initiative, all member states of the Arab League will recognize Israel and establish normal relations with it. Talks about a future Middle Eastern Union, on the model of the EU, possibly to include Turkey and Iran, may be considered.

-14- Palestinian unity is essential for peace. Peace made with only one section of the people is worthless. The US will facilitate Palestinian reconciliation and the unification of Palestinian structures. To this end, the US will end its boycott of Hamas, which won the last elections, start a political dialogue with the movement and encourage Israel to do the same. The US will respect any result of democratic Palestinian elections.

-15- The US will aid the government of Israel in confronting the settlement problem. As from now, settlers will be given one year to leave the occupied territories voluntarily in return for compensation that will allow them to build their homes in Israel proper. After that, all settlements – except those within any areas to be joined to Israel under the peace agreement - will be evacuated.

-16- I suggest that you, as President of the United States, come to Israel and address the Israeli people personally, not only from the rostrum of the Knesset but also at a mass rally in Tel-Aviv’s Rabin Square. President Anwar Sadat of Egypt came to Israel in 1977, and, by addressing the Israeli people directly, completely changed their attitude towards peace with Egypt. At present, most Israelis feel insecure, uncertain and afraid of any daring peace initiative, partly because of a deep distrust of anything coming from the Arab side. Your personal intervention, at the critical moment, could literally do wonders in creating the psychological basis for peace.

Available at Gush Shalom.

Beyond Militarization: Legalization of the Israeli-Palestinian Conflict and The Globalization of Human Rights Law

The following is in response to Jonathan Simon’s post at PrawfsBlawg, “Israel’s Silent Weapon,” which I found in the main interesting and suggestive. However, I was not permitted to place a comment there (it was identified as requiring prior approval of the post’s author, which it twice failed to receive) so I decided to post it here, albeit with substantial modifications (including additional commentary and references).

Simon argues that in light of what he calls Israel’s “impressive legal culture,” a “law offensive against Hamas or Fatah would cast international light on [a] different set of champions for the Palestinian side then those with starring roles in this offensive.” I’m not at all against a “law offensive” in the international arena (which unavoidably entails a role for the U.N. and its affiliate institutions), especially in light of the fact that the Palestinians have attempted for quite a long time to conduct such an offensive themselves, although to little avail, and despite Simon’s insinuation that only now is a “legal culture” beginning to emerge among the Palestinians: “The Palestinians, more on the West Bank than Gaza, have also begun to generate a potent legal culture (much of its [sic] schooled in battles fought in the occupation courts) one fully capable of transmitting their national grievances into strong claims in human rights law" [emphasis added].

There are a few things troubling about this remark. The first is the comparative devaluation of the Palestinians from Gaza, no doubt owing to the fact that they had the audacity if not temerity to freely elect an Hamas-led government to represent their aspirations, a fact made possible by the Israelis’ success in destroying the bulk of governing powers possessed by the Palestinian National Authority as well as its shrewd employment of a “divide-and-conquer” strategy against the Palestinians, the latter (in addition to the internal problems [e.g., corruption] among PNA’s leaders) serving to help “radicalize” many Palestinians, prompting them to look to Hamas for a new direction and way out of the socio-economic and political morass they have long been mired in. Relatedly, the Israelis have afforded the Palestinians in both the West Bank and Gaza notoriously few and meager opportunities with which to develop an indigenous and vigorous “potent legal culture.” When many of the most basic needs of your people are being met by U.N. relief agencies,* it’s not hard to imagine the absence of sufficient energy and resources to devote to developing a robust legal culture! Nevertheless, and all things considered, the Palestinian leadership, with help from sympathizers in and outside Israel, can be credited with developing an "innovative media savvy legal and diplomatic campaign."

But we might also question a presupposition of Simon’s remark insofar as it insinuates Hamas and those in Gaza, indeed, all Palestinians, somehow and until most recently have been without a “potent legal culture.” Palestinians who are Muslims at least can lay claim to quite an historically and comparatively impressive legal culture, one grounded in Islamic legal traditions and schools expressed in a plurality of forms throughout the Islamic world. For a sampling of the literature in English on this impressive legal tradition, see the section on “Islamic Law” in my Comparative Law bibliography posted at the Legal Profession Blog (I will have an updated section on Islamic Law in my forthcoming Islamic Studies bibliography which will be posted here as part of the Directed Reading series). In any case, Palestinians are intimately familiar with, and have had a long-standing respect for, “legal culture,” as the book by Boyle below attests. Palestinians have not resorted to (self-defense and) violence because it's "in their nature," as if they have some national and ethnic predilection or predisposition to same, but because they've been driven to commit acts of desperation, having tried both legal (which, in self-defense, legitmates the use of violence) and non-violent strategies since the founding of the state of Israel over forty years ago.

I was delighted to see favorable mention of Lisa Hajjar’s book. What was not said, however, is also of particular interest: Hajjar is a very good friend of Professor Richard Falk, an international law scholar (emeritus) and U.N. Special Rapporteur on Palestine who was recently denied entrance into Israel and the West Bank. She posted on this at IntLawGrrls blog, and we discussed it at Opinio Juris [the site has been having some problems so be patient]. Given Simon’s desire to see things move to the international legal arena in light of human rights law, it’s a bit puzzling that there was no mention of this recent incident, as it helps illustrate the often intractable difficulties and characteristic obstacles faced by the Palestinians when they have placed trust and hope in the institutions and media of international legal fora and human rights law. Incidentally, together with Hilal Elver, Falk and Hajjar have edited a 5 volume work, Human Rights: Critical Concepts (in Political Science), (2007).

The “legalization” that Professor Simon ardently desires has been attempted for some time now by the Palestinians, while the Israelis have shown little more than contempt for international legal opinions and rulings, and especially resolutions passed by the Security Council and General Assembly of the United Nations. Most glaringly, Israel has ignored UNSC Resolutions 242 and 338, and actively blocked meaningful attempts by Palestinians to exercise their international legal right of (collective) self-determination. Israel has repeatedly violated provisions in the Fourth Geneva Convention. It's hard to discern respect for Palestinian legal rights in the repeated infliction of “collective punishment” on the Palestinians in the West Bank and Gaza. Few were therefore surprised when Israel derisively dismissed the Advisory Opinion of the International Court of Justice that declared the "security wall" being constructed on the Occupied Territory was illegal and should be dismantled (14-1: the lone negative vote was cast by an American judge, although the ostensible reason was lack of sufficient evidence to warrant the tribunal’s conclusion). Alas, as we learned from the war in Iraq (and should have learned from the Vietnam war...), a flourishing municipal legal culture, even one found in a democratic state, is no guarantee a government will show corresponding respect for the international and transnational legal culture that gave birth to human rights law.

So, any further movement in the direction of “legalization” as suggested by Simon should take cognizance of, from the Palestinian perspective at any rate (I'll leave it to others to address the specifically Israeli side of the equation), Francis A. Boyle's Palestine, Palestinians and International Law (2003), which is an example of one persistent attempt to use "international law to clarify and resolve the Israeli/Palestinian conflict." A brief introduction in this regard is Richard Falk's "International Law and Palestinian Resistance," found in Joel Beinin and Rebecca L. Stein, eds., The Struggle for Sovereignty: Palestine and Israel, 1993-2005 (2006): 315-323.

Perhaps needless to say, I'm in agreement with Simon's conclusion:

[O]ne might hope that the global dispersal human rights law as a governmental discourse is now at a stage where innovative, even if largely performative acts of legal and diplomatic campaigning, could be worth at try as an alternative between doing nothing (which Israeli leaders claim was their pre-war strategy) and launching a bloody military campaign that has low odds of achieving its objectives.

This, in fact, is where the Israelis might welcome the opportunity to learn from the long-standing if frustrating experience of their Palestinian brothers and sisters in those international legal fora that at least profess a commitment to the fundamental value of human rights law (responding here to Simon's statement that much of whatever 'legal culture' the Palestinians possess was 'schooled' in Israeli occupation courts).

Here is a sampling of papers related to "legalization" of the conflict and the significance of human rights to such a project:

Richard Falk and Burns H. Weston, "The Relevance of International law to Palestinian Rights in the West Bank and Gaza: In Legal Defense of the Intifada," Harvard International Law Journal 32, No. 1 (1991): 129-150.

Richard Falk and Burns H. Weston, "The Israeli-Occupied Territories, International Law, and the Boundaries of Scholarly Discourse: A Reply to Michael Curtis," Harvard International Law Journal 33 No. 1 (1992): 191-204.

Aeyal M. Gross, "Human Proportions: Are Human Rights the Emperor's New Clothes of the International Law of Occupation?", The European Journal of International Law, Vol. 18, No. 1 (2007): 1-35.

Victor Kattan, "From Beirut to Brussels: Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres," 11 Yearbook of Islamic and Middle Eastern Law (2004/5), pp. 33-82.

Victor Kattan, "The Use and Abuse of Self-Defense in International Law: The Israeli-Hezbollah Conflict as a Case Study," available: http://ssrn.com/abstract=994282

Edward Kaufman and Ibrahim Bishart, "Introducing Human Rights into Conflict Resolution: The Relevance for the Israeli-Palestinian Peace Process," Journal of Human Rights, Vol. 1, No. 1 (March 2002): 71-91.

Louay M. Safi, "Human Rights and Islamic Legal Reform." I can't recall where I found this important paper but it should be easy enough to find with a "google" search.

Niaz A Shah, "Jihad: Self-Defence in Islamic Law," 12 Yearbook of Islamic and Middle Eastern Law (2005/6)

Adrien K. Wing and Hisham A. Kassim, "Hamas, Constitutionalism, and Palestinian Women," University of Iowa Legal Studies Research Paper, No. 08-21, Howard Law Journal, Vol. 50, No. 2, 2007. Available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1130219


And a few books indispensable to the aforementioned endeavor:

An-Na’im, Abdullahi Ahmed. Islam and the Secular State: Negotiating the Future of Shari‘ah. Cambridge, MA: Harvard University Press, 2008.

Baderin, Mashood A. International Human Rights and Islamic Law. New York: Oxford University Press, 2003.

Bowen, Stephen, ed. Human Rights, Self-Determination, and Political Change in the Occupied Palestinian Territories. The Hague: Kluwer Law International, 1997.

Boyle, Francis A. Palestine, Palestinians and International Law. Atlanta, GA: Clarity Press, 2003.

Cotran, Eugene and Mai Yamani, eds. The Rule of Law in the Middle East and Islamic World: Human Rights and the Judicial Process. London: I.B. Tauris, 2000.

Khadduri, Majid. The Islamic Conception of Justice. Baltimore, MD: Johns Hopkins University Press, 1984.

Khadduri, Majid. War and Peace in the Law of Islam. Baltimore, MD: Johns Hopkins University Press, 1955.

Khadduri, Majid, trans. The Islamic Law of Nations: Shaybānī’s Siyar. Baltimore, MD: Johns Hopkins University Press, 2002.

Mayer, Ann Elizabeth. Islam and Human Rights: Tradition and Politics. Boulder, CO: Westview Press, 4th ed., 2007.

Rehman, Javaid and Susan C. Breau, eds. Religion, Human Rights and International Law: A Critical Examination of Islamic State Practices. The Hague: Martinus Nijhoff, 2007.

For a list of titles that enable one to place questions of legality and human rights within the larger historical and political context (after all, law and politics are, for better and worse, inextricably intertwined, nonetheless, I believe law is capable of bringing us somewhere betwixt and between 'apology and utopia,' to borrow from the title of Martti Koskenniemi's important book on the structure of international legal argument), please see my post below. You’ll also find there a list of human rights organizations with excellent websites useful for research. As a prelude to (or in lieu of) reading the books in that list, I would highly recommend Joel Beinin and Lisa Hajjar’s “Palestine, Israel, and the Arab-Israeli Conflict: A Primer,” available at the website for The Middle East Research and Information Project (MERIP).

Finally, as the topic is unavoidable, books and articles (from transdisciplinary perspectives) on "terrorism" are found in my bibliography for same, available in an early draft at the Legal Ethics Forum.

* An excellent précis of the socio-economic conditions in Gaza is found in Sara Roy's piece, "If Gaza Falls...," London Review of Books, Vol. 31, No. 1 (1 January 2009).

Update: My original comment has now (Jan. 11) been posted at Prawfs.