Response to Michael N. Schmitt and John J. Merriam: On the Tyranny of Context

In their forthcoming paper, The Tyranny of Context: Israeli Targeting Practices in Legal Perspective, Michael Schmitt and John J. Merriam examine Israel’s targeting practices against the Gaza Strip and Lebanon. Their purpose is to scrutinize the context in which these attacks take place as well as the Israeli Army’s relevant legal standards regulating them. The paper reads like read like an estimable apology on Israel’s behalf. That is because their findings lack the benefit of operational practice that would bear upon their legal conclusions.

Their findings are based on two visits to Israel in December 2014 and February 2015. During those visits, the Israeli Army granted them:

…unprecedented access that included a “staff ride” of the Gaza area, inspection of an Israeli operations center responsible for overseeing combat operations, a visit to a Hamas infiltration tunnel, review of IDF doctrine and other targeting guidance and briefings by IDF operations and legal personnel who have participated in targeting. The authors also conducted extensive interviews of senior IDF commanders and key IDF legal advisers. (3)

Schmitt and Merriam do not speak to a single person who may be a victim of Israel’s targeting practices. They acknowledge that their approach “might be perceived as leading to a pro-Israeli bias” but insist “the sole purpose of the project was to examine Israeli targeting systems, processes and norms in the abstract.” (3) In essence, they acknowledge that this entire paper examines what IDF lawyers say rather than what IDF operators do. At best – we should read it as a supplementary report to the Israeli Army’s war manual: it is just theoretical. However, they they also claim that their combined experience enables them to assess the “credibility and viability” of Israel’s claims and the outcome is “granular and exceptionally frank.” (4) This is an arguably impossible task if they do not assess Israel’s assertions about their practices in comparisons to actual practice.

As my colleague and legal scholar on laws of war explained to me, he has become accustomed to reading such reports like an anthropologist. Indeed, the value of this paper is its insightful display of the production of knowledge on national security and counter-terrorism from the US and Israeli metropolises. While this may be reason to dismiss the paper all together, it is also precisely why the paper merits response. Schmitt and Merriam are hardly insignificant. Their tremendous body of scholarship and influence means that their interventions will be taken very seriously and will inevitably bear upon the ways we come to understand, justify, and/or reject the development of the laws of armed conflict. This short piece aims to use three select examples to highlight the methodological shortcomings that give rise to insufficiently tested findings that are emblematic of the paper. (I include only one here, for the full article, you can read it here.) For the sake of specificity and fidelity to context, I will focus just on Operation Protective Edge, Israel’s 2014, 51-day attack on the Gaza Strip.
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Operation Protective Edge: Legal and Political Implications of ICC Prosecution

George Mason University’s Middle East Studies Program, Global Programs, New Century College (NCC) and the Trans-Arab Research Institute welcome four international law experts to discuss the political and legal implications of an International Criminal Court (ICC) investigation of recent conflict in the Gaza Strip. This discussion will be held in Johnson Center, Room C, at 4 p.m. on Monday, October 20, 2014.

In July and August, hostilities in the Gaza Strip left 2,131 Palestinians and 71 Israelis dead, including 501 Palestinian children and one Israeli child. Of Gaza’s 1.8 million residents, 475,000 are living in temporary shelters or with other families because their homes have been severely damaged. The extent of destruction has raised questions around culpability for war crimes on all sides of the conflict. International organizations including the United Nations Human Rights Council, Amnesty International and Human Rights Watch have called for independent investigation.

Palestine is considering accession to the Rome Statute, which would grant the International Criminal Court the authority to investigate war crimes conducted in Palestinian territory. Such an investigation would bring both Israel and Palestine under scrutiny for events from this summer and as far back as 2012, and possibly to 2002 when the ICC was first formed to investigate war crimes.

This panel will explore the relevant legal questions under international criminal law as well as the political issues related to ICC accession by Palestine. Panelists include:

  • David Luban of Georgetown University Law Center
  • Margaret deGuzman of Temple University Beasley School of Law
  • George Bisharat of University of California Hastings College of the Law
  • Kevin Jon Heller of the SOAS, University of London

NCC Professor Noura Erakat will moderate the discussion. This event is free and all are welcome to attend. You can follow the event on live stream here.

Arab Bank Case Sets Limited Precedent

On Monday September 22, 2014, a jury in the US District Court of Brooklyn found that the Arab Bank is liable for financing terrorism. This is the first jury trial to find a bank liable for financing terrorism under the 1990 Anti-Terrorism Act (ATA). The Arab Bank contends that the case was riddled with errors that should be rectified upon appeal before the Second Circuit. The Central Bank of Jordan has come out in support of the Bank, whose earnings constitute a quarter of the country’s stock market portfolio.

The decision, dubbed as a “trial against Hamas,” has been welcomed by some Palestine advocates. They are hopeful that this means, Israeli or US banks can be sued for facilitating the expansion of illegal Israeli settlements in the West Bank. That, however, is just not possible for two reasons. First, US federal courts have demonstrated an unwillingness to challenge Israeli policies, preferring to punt those questions to the Executive Branch instead. Second, it is a legislative invention, namely the ATA, that has made this case possible. Together, executive shielding of Israeli actions from judicial review and legislative endorsement of suits against Arab defendants, makes similar suit challenging Israel’s settlement policies very unlikely.

The U.S. federal court system has consistently invoked the political question doctrine to shield individuals connected to the Israeli government. The doctrine prevents the U.S. federal court system from adjudicating an issue that the U.S. Constitution textually commits to another branch of government. Since the Constitution commits foreign relations to the executive and legislative branches, the judicial branch may reject a claim as in-actionable by invoking the political question doctrine.

In 2005, Palestinian bystanders injured and killed during an operation intended to kill a Hamas leader in the Gaza Strip brought a lawsuit under the Alien Tort Statute (ATS) against Abraham Dichter, the former director of Israel’s General Security Services responsible for the operation. The plaintiffs in Matar v. Dichter, 563 F.3d 9, 11 (2d Cir. 2009) claimed that the targeted killing was extrajudicial, prohibited by the Torture Victims Protection Act (TVPA), and actionable in U.S. courts under the ATS. The Second Circuit dismissed the case for raising a political question. It characterized Dichter’s military actions as part of Israel’s foreign policy and therefore non-justiciable. The Department of State (DOS) submitted a Statement of Interest to the Court urging it to not hear the case. Israel’s Ambassador to the US at the time also submitted a letter claiming that Dichter’s actions constitute official Israeli policy. These letters had considerable influence on the panel.

In Belhas v. Ya’alon, 515 F.3d 1279, 1282 (D.C. Cir. 2008), Lebanese citizens – who were injured and killed when Israel shelled a United Nations Interim Forces in Lebanon (UNIFIL) compound – sued Moshe Ya’alon, head of the Israeli Army Intelligence during the time of the shelling. The DC District Court dismissed the case for being barred by the Foreign Sovereign Immunities Act (FSIA), which prohibits suit against a foreign country in US courts.

The claims were never heard on their merits.


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The Right to Development & The Arab Uprisings (Part II)

Neo-liberal Development, Human Rights, and the Arab Uprisings             

Rather than consider the state’s failure to empower, include, and provide, adherents of neoliberal development framed the Arab Uprisings as a revolt against government bureaucracy and rent-seeking. While there may be truth in that, by de-linking the gains of national economic and political elite from an international neoliberal development project, stakeholder states and IFI’s mistakenly exculpate themselves. 

Fittingly, Robert Zoellick, President of the World Bank, attributed Bouazizi’s self-immolation to his frustration with “red tape.” Zoellick advised that Arab states should “quit harassing people and let them have a chance to start some small businesses.” (128) However, at the time of its Uprising, Egypt ranked as the eightieth easiest state in which to start a small business. Either the irony or the dispositive evidence was missed on Zoellick. Myopic focus on institutional governance fails to scrutinize the privileged access to economic opportunities in developing states that thwarts development, democracy, and human rights.

Over the course of three decades of authoritarian rule, the Mubarak regime, comprised of Mubarak himself together with its incumbent economic and political elite, amassed a tremendous amount of the country’s wealth for their personal benefit. The state has acquired thirty-five billion USD in loans, eighty-five percent of which is publicly guaranteed, and none of which benefits the general population. In the course of repaying its loans, more loans flow from Egypt to the West than the other way around. Since the ouster of Mubarak, no attention has been given to remedying this condition. To the contrary, from the democratically elected Muslim Brotherhood and now, within the military regime that has ousted it, these neoliberal policies have become further entrenched. States and IFI’s pledged 15 billion USD to post-Mubarak Egypt within three months of his ouster. However, according to Professor Adam Hanieh of SOAS University, 

“This investment…is premised upon a profound liberalization of the Egyptian economy. They will only be undertaken concomitant with measures such as a deepening privatization (undoubtedly in the form of PPPs), deregulation (initially likely to be connected to the opening up of more sectors to foreign investment), the reduction of trade barriers (connected to access to US and European markets), and the expansion of the informal sector (under the banner of cutting ‘red tape’). They will necessarily involve, furthermore, a rapid expansion in Egypt’s overall indebtedness – tying the country ever more firmly to future structural adjustment packages.” (134)

Although its protests did not develop into sustained mass mobilization, in Jordan, the demand for human-centered development reverberated clearly. While Jordan’s economy ranks thirty-eighth freest in the world and the fourth freest in the Middle East, the majority of its citizens are poor and have weak purchasing power. Its most economically vulnerable population constitute the working poor and do not benefit from these trade privileges. The exclusive concern with growth rates is misplaced in Jordan where trickle-down effects have been dispositive and only a select economic and political elite has access to profitable investment arrangements.

Syria stands out as the exception among its Arab neighbors only for resisting a similar developmental shift until the late 1980s. In 1986, the Syrian regime shifted its social and political alliances from labor to business. In a context of economic stagnation, this shift also marked a slow but gradual reduction in state subsidies for basic goods upon which a significant cross-section of the Syrian population was reliant. By the 2000s, combined with the deleterious effect of policies driven by a new business class with ties to the government, this resulted in greater absolute poverty and social polarization as well as a dramatic increase of the informal sector. According to Professor Bassam Haddad, Director of the Middle East Studies Program at George Mason University,

“the most lucrative new economic opportunities were monopolized by regime loyalists, relatives, or partners…The striking proximity of policy makers to policy takers made rent-seeking and structural corruption extremely efficient, producing a plethora of tailored policies that weakened, fragmented, and taxed the national economy.”  

All the while, the Syrian Regime steered this shift in the name of ‘investment,’ ‘growth,’ and ‘modernity.’ Together with the most severe drought that has caused the forced internal migration of more than 1.2 million Syrians since 2003, social polarization and discontent reached extraordinary levels by the late 2000s, tipping the balance in favor of a mass-based Uprising in rural areas. While this may explain the origins of the conflict, it hardly explains how the Uprising has turned into internal conflict and a regional proxy war, which I will not discuss here.

Remedies

I do not mean to suggest that failure to adhere to the interdependent development approach has caused mass mobilization across the Arab world; that would be rather simplistic. The anecdotal case studies above do, however, illustrate the gravity and enduring relevance of human-centered development. They also show how other states and international institutions are implicated in national struggles. Both lessons are instructive for practitioners, organizations, and analysts concerned with development, democracy, and human rights in the Arab world.

On a national level, states must be able to subvert international economic prerogatives that conflict with their own national goals. By limiting democratization to unfettered markets, IFIs impede the ability of governments to freely determine the use and distribution of their own resources. Worse, they provide incentives for political-business elite networks to benefit from these exclusive arrangements while publicly-backing loans that avoid personal risk. The overlap of local interests and global neoliberal prescriptions has economic and political elite to benefit tremendously even as they professed a commitment to nationalist ideals. (i.e., Syria continued to boast its socialist constitution until 2005 while adopting state/crony capitalism in the best form.) Uncritical approaches to national sovereignty, self-determination, democratization, and participation that are not linked to equitable distribution fail to account for this deleterious pitfall. Equitable distribution must be part and parcel of any developmental formula in countries where inequity has become a recipe for either authoritarianism or chronic instability. Such reform must be internalized within national development agendas as well as within the IFIs themselves, which facilitate these hazardous arrangements. 

Above all, the case studies are a stern reminder of the inextricability of civil, political, and social, economic rights. It is much easier and much simpler to attribute the upheaval in the Arab world to a lack of democratic governance, free and fair elections, an independent judiciary, and police accountability. However, it would be short-sighted to extricate these coercive measures from an international economic system that precludes democratic participation with equity and is contingent upon a truncated state. Under these terms, development must occur in spite of popular will rather than on its behalf. It is telling that after Ben Ali’s ouster from Tunisia, Tunisians opted to loot luxury villas, shops, and supermarkets identified as belonging to the family rather than attack police stations.Human rights practitioners and organizations should bear in mind that expansion of political and civil participation for individuals within government must be interlinked with more meaningful economic self-determination.

These prescriptions are not new. The UN Convention on the Right to Development captured them twenty-three years ago, the Vienna Convention on Human Rights reaffirmed them three years later. Self-determination of individuals, collectivities, and states cannot be overestimated in alleviating these conditions and making central the person and society, not just the person himself. Human rights advocacy should take its cue from those local and regional movements that are viscerally and daily affirming this principle.

The Right to Development & The Arab Uprisings (Part I)

In mid-December 2010, a young street vendor set himself on fire after his ill-treatment by Tunisian police. Mohamed Bouazizi set himself ablaze in Sidi Bouzid and inspired an entire region to revolt against decades of authoritarianism. Mass protests in Tunisia led to the ouster of its autocratic head of state Zine Abidine Ben Ali. This revolutionary fervor then spread to neighboring Egypt, where eighteen days of protest removed Hosni Mubarak from the helm of power. Soon, these tectonic shifts inspired protestors in Yemen, Libya, Bahrain, and Syria to challenge their autocratic leaders who had, for decades on end, also denied them the right to freely determine their political, economic, and social conditions. The protests have since successfully led to the negotiated removal of Yemen’s Ali Abdullah Saleh from power. NATO military intervention, initially mandated by the UN Security Council to thwart a massacre in Benghazi expanded into a mission of regime change and ended the rule of Muammar Qaddafi in Libya. Today, protests continue in Syria, Bahrain and the transition processes have never ceased in Egypt, Libya, Tunisia, Bahrain, and Yemen.

The emergence of authoritarian regimes in the Arab world reflects a sordid history of colonial rule and post-colonial interventions that have created oppositional politics among states within the Middle East. The Middle East is rich in natural resources like gas and oil and has been one of the most penetrated regions by foreign interests. French and British intervention after the First World War derailed regional aspirations for unity and arbitrarily carved the Arab populations into several states. Each of these states later became independent from colonial rule and, ultimately, they became authoritarian.

Though devoid of political ideology, Arab regimes cultivated popular legitimacy by combining authoritarianism with a redistributive welfare state, in what political scientists refer to as “authoritarian populism.” Accordingly, states successfully “consolidated power by trading development for the political loyalty of key social forces, such as workers, peasants, and professionals, and others educated in the middle class.” Despite significant opposition, most Arab populations welcomed this social contract: in exchange for political and civil rights, the regimes would provide economic stability in the form of basic goods like subsidized housing and food as well as security to live free of internecine violence.

This contract, however, quickly began to unravel. GDP growth rates generally rose with the beginning of populist policies and public sector expansion only to begin falling in the 1980s as a result of a combination of repression, corruption, and mismanagement.  The contribution of human and physical capital dropped from 3.4% in the sixties to negative 1.5% in the 1980s and stagnated throughout the 1990s. As Arab authoritarian regimes have entered into the globalized economy through the neoliberal prescriptions window, they began to privatize public goods like water, electricity, housing, and education through Public-Private Partnerships (PPPs). By steadily retracting redistributive policies whilst maintaining authoritarian governance, Arab authoritarian populists breached their tenuous social contracts.  

By the 2000s, and as the gap between rich and poor expanded and as gender and other social-based disparities deepened within Arab countries, their aggregate economic figures oddly improved, but at the dire expense of equitable distribution. The IMF, for example, in 2010 praised Tunisia’s “‘sound policies and reforms’ for helping the country weather the global downturn.” The inverse relationship between aggregate and socio-economic development is not unique to the Arab world. In fact its ubiquitous nature among developing states, especially, reflects the principles first captured in the 1986 UN Declaration of the Right to Development and later reaffirmed in the 1993 Vienna World Conference on Human Rights. The missing ingredient was distributive equity.

Development as a Human Right

Drafters of the UN Declaration of the Right to Development were careful not to reduce development to purely economic aspirations. Instead, the document reflects a textured understanding of human and national development, which it defines as  

“a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom […]”.

The Declaration affirms the interdependence of development, democracy, and human rights. It suggests that in order to benefit from development, human persons must be free from structural abuse, so as to freely participate in their cultural, economic, social, and political development.

In practice, centering human persons in national development means, ensuring active and meaningful participation; securing non-discrimination; fairly distributing the benefits of development; respecting self-determination and sovereignty over natural resources; and allowing human development to inform all processes that advance other civil, political economic, social
and cultural rights.


In 1993, the Vienna Declaration reaffirmed development as a human right (para. 10) as well as the interconnectedness of development, democracy, and human rights. Like the UN Declaration of the Right to Development, the Vienna Declaration is clear that human persons, not national economies are central subjects of development. Paragraph 10 reads, “while development facilitates the enjoyment of all human rights, the lack of development may not be invoked to justify the abridgment of internationally recognized human rights,” thus capturing the tension between state and individual rights and prioritizing the latter.

The Vienna Declaration emphasizes that democratization in this context “is based on the freely expressed will of the people to determine their own political, economic, social, and cultural systems and their full participation in all aspects of their lives.” (para. 8) In marked contrast, neoliberal prescriptions define democratization in pursuit of development as opening up the market without regard to human rights or agency. Its overreliance on trickle-down effects casts the state as an obtrusion to prosperity. Worse, policymakers who aimed to dismantle state regulation and control of natural resources took for granted how neoliberal prescriptions globally overlapped with the interests of local and political elite. The effect was a redistribution of state wealth and opportunities to new a new elite class of public and private actors without regard for equitable distribution of opportunities and resources. “Democratization” and “participation” therefore remained exclusionary in content and structure. 

Since the 1990s, international financial institutions (IFI’s) have strategically linked the function of markets with their international governance. It is in this context that the

“World Bank and other institutions have emphasized notions such as the ‘rule of law,’ ‘decentralization,’ ‘good governance,’ ‘separation of the legislative and executive,’ and so forth, which supposedly aim at reducing the rent-seeking capabilities of state officials, and guarantee greater transparency in economic affairs.” (127).

This developmental program in the Middle East, characterized by autocratic governance and marked by economic stagnation, has been intensely undemocratic and brutally indifferent to the dignity of individual persons and their collective formations.