Challenging the culture of denial

Challenging the culture of denial
From John McHugo
From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict, 1891-1949, Victor Kattan

Pluto Press, London, 2009, £22.99
ISBN: 9780745325781

A legal historian cannot bring a murder victim back to life, but what they write may have a powerful impact on how attitudes change or unresolved disputes are reassessed. This is particularly so when (as in the Israeli-Palestinian dispute) the issues are emotive and the parties have a desperate need to believe that their positions rest on firm moral foundations.

In From Coexistence to Conquest, Victor Kattan takes international law as his standpoint from which to examine the issues of the Palestine problem up to the 1949 armistices and the failure to resolve the dispute at that time. The book includes chapters on the relationship between Zionism, colonialism and anti-Semitism, the scramble for the Ottoman Empire (which Kattan sees as essentially part of the same process as the scramble for Africa) during and after the First World War, the Hussein-McMahon correspondence, Palestinian opposition to political Zionism, the nature of the right to self-determination of the inhabitants of the Palestine Mandate, the partition of Palestine, the refugee question, and the creation of Israel as a sovereign state. He has mined a rich seam of opinions by law officers in London and Washington, legal writings and court and arbitration decisions which political historians would find difficult to assess without a good background in international law.

Kattan makes a strong case that the pledges made in the Hussein-McMahon correspondence for an independent Arab State after the First World War which would include Palestine were legally binding on Britain. This may seem to be of purely antiquarian interest now, but sensitivity over the letters is still evident in the work of historians such as Karsch and Fromkin who would like to be as dismissive of them as possible. The pledges they contained may be dead, but they are still relevant when interpreting the Balfour Declaration, or considering the good faith (or lack thereof) of British politicians such as Balfour, Lloyd George and Churchill, and Zionist leaders such as Weizmann and Ben-Gurion.

The core of the book, however, is the author’s research into the legal archives concerning the Mandate, the partition, the refugee problem and the creation of Israel. The Israeli ‘New Historians’ have shown that much of the Palestinian narrative can be corroborated from declassified Israeli archives. Kattan now provides additional confirmation from legal writings in London and Washington, while asking why so many eminent legal scholars have been reluctant to challenge the Israeli narrative. He argues that the use of force by the Yishuv to establish a Jewish State in Palestine was unlawful while, conversely, Arab attempts to prevent the land-grab by the new State of Israel can be seen as a form of humanitarian intervention.

He also examines the question of how Israel acquired legal title to its territory in 1948-49 – a topic which previous legal studies such as Sharon Korman’s The Right of Conquest and the main textbooks and reference works have glossed over or conspicuously avoided. Kattan’s view is that Israel acquired sovereignty over its territory by an illegal conquest. In arguing this, he has challenged a taboo that needs to be lifted. Even if there are some who would prefer to ignore it, his view deserves a proper academic debate – over to you, Alan Dershowitz!

On the question of Palestinian refugee rights, Kattan uses legal principles to distinguish the case of the expelled Palestinians from the fate of other groups such as the Sudeten Germans and the populations exchanged between Greece and Turkey in 1923. In doing so, he strikes an incidental blow at the moral equivalence of those who argue that the existence of one injustice makes the commission of another acceptable. He also shows how tantalisingly close the Arab-Israeli dispute was to a negotiated settlement in 1949, and how Israeli obduracy over the return of a substantial number of non-Jewish refugees was a major – or even the major – cause of the failure to reach a settlement. We still live with the consequences of this.

Sometimes the book turns from legal issues to political and intellectual history, as when the author explores the unpleasant aspect of the Zionism of Balfour and others who did not want too many Jews (particularly Jews from Eastern Europe) in their own country, and what might be called the co-dependent relationship which Zionism has had with anti-Semitism and imperialism. Although he is writing from a legal perspective, it is right for Kattan to focus on such matters. They form the essential background to the interpretation of such key documents as the Balfour Declaration and to understanding the inception and history of the Palestine Mandate. No legal case can be understood without mastering the facts on which it is based, including the motives and intentions of the main witnesses. Even if you are not interested in international law, the book is well worth reading for its coverage of history.

The author is to be congratulated, and one hopes for a sequel covering the subsequent legal history of Israel-Palestine. The interesting question now is whether scholars whose work is written from a Zionist perspective will challenge or ignore his arguments. Kattan has shown up the ignorance and denial of historical fact which animate tracts like Lauterpacht’s Jerusalem and the Holy Places and Schwebel’s What Weight to Conquest?

I suspect those who take comfort from the support for Israeli expansionism in such writings by otherwise distinguished legal scholars will be reluctant to engage him in honest debate.

This book is ultimately about morality as well as legality. Although these two concepts overlap, they are always distinct. But when one party to a dispute tries to negotiate an agreement while denying the other its legal entitlements, it shows that it has lost its moral compass and subsists on a culture of denial made possible by the principle of ‘might is right’. But no culture of denial can endure indefinitely. From Coexistence to Conquest brings closer the day when the culture of denial that underpins the Greater Israel lobby must fall apart.

John McHugo

The Sovereignty of Muslim Nations

A Casualty of US Foreign Policy

The United States has adopted an invasive foreign policy that violates the sovereignty of many Muslim nations. Article 2(4) of the UN Charter promulgates: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Territorial integrity and political independence are the principles of national sovereignty -- key principles of the UN Charter and post-colonial international law – which empower nations to freely determine their political, social, economic, and religious institutions, without external coercion, diplomatic pressure, war threats, and economic sanctions. Philosophically, these principles respect human diversity and presume that no system, including liberal democracy, can be the singular model for all nations. The principles caution against any mindless importation of legal and political systems successful in other nations. Accordingly, the peoples of the world are free to institute political systems of their choice, including constitutional monarchies, presidential systems, secular or religious forms of government.
Contrary to the UN Charter, and in blatant violation of the principles of territorial integrity and political independence, the US is determined to forcibly shape the Muslim world in its own image. Part of this determination mirrors the American mindset that Muslim nations would indeed be better off if they simply borrow secular institutions of the United States. This evangelical mindset presumes that Islam is a reactionary religion that impedes material prosperity and social justice. Part of this determination reflects the dark side of American self-pride and super-power exceptionalism, which sees most other nations as the lesser children of God in need of American guidance. Undoubtedly, the US foreign policy is also geared toward obtaining key natural resources (such as oil) and maintaining strategic military dominance in various Muslim regions of the world.
For most part of the twentieth century, Muslim nations, some emerging from the colonial yoke, approached the US for economic assistance, development, and even protection against regional and global enemies. For example, the US played a supportive role in the independence of Indonesia, the largest Muslim nation. The fear of the Soviet Union, which had occupied Central Asian Muslim nations and later invaded Afghanistan, drove many other Muslim nations to seek US patronage. For a variety of reasons, the US succeeded in constructing strategic alliances with key Muslim nations, including Saudi Arabia, Egypt, Turkey, Pakistan, and Iran under the Shah.
The relations with the Muslim world, however, began to fracture as the US foreign policy favored Israel in the Middle East conflict. The 1979 Iranian revolution painted the US as the Great Satan, and highlighted the immorality of US foreign policy that subsidizes cruel and inhuman occupation of Palestine and institutes puppet governments in Muslim countries. A few years later, the Al Qaeda, an international militant organization, launched asymmetrical warfare against US targets to draw attention to the occupation of Muslim lands. In countering terrorist attacks, the US bombed Tripoli and Khartoum, the capitals of Libya and Sudan, ratcheting up the conflict with Muslim nations.
The 9/11 attacks and subsequent invasions of Afghanistan and Iraq have further fractured relations with the Muslim world. The US homeland security and the associated legal rhetoric of self-defense and the war on terror have been invoked to establish a new justificatory paradigm for violating territorial integrity and political independence of Muslim nations. The phraseology of “Islamic fascism” and “Islamic terrorism” paints Muslim militants as inherently violent individuals who kill to please God and to go to heaven. Almost every Muslim nation, foe or friend, is under intense US diplomatic pressure to launch attacks on national militants even if such attacks kill innocent civilians.
The US logic of homeland security is weighing heavily on Afghanistan, where the war machine has killed thousands of civilians in pursuing the dubious goal of defeating the Taliban. Even Pakistan, a subservient ally, has been subjected to drone attacks while Pakistan’s democratically elected government and its armed forces are helpless in protecting the nation’s territorial integrity and political independence.
In addition to military attacks, the US foreign policy employs subversive modus operandi. The 2006 Iran Freedom Support Act allocates millions of dollars authorizing US intelligence agencies to support groups opposed to the Iranian government. This law is fashioned after the Iraq Liberation Act of 1998, a law that paved the way for invasion and the overthrow of Saddam Hussein. The threats of attacking Iran are in the air. Meanwhile, US intelligence agencies enjoy the legal mandate to destabilize the Iranian government and possibly reverse the Islamic revolution by sowing seeds of confusion and anarchy.
Unfortunately, these massive violations of the UN Charter, specifically of the principles of territorial integrity and political independence, go unnoticed. The UN officials are silent over these violations as if Article 2(4) does not exist. The US foreign policy remains the same under President Obama, who promised to mend relations with Muslim nations. Meanwhile, US policymakers continue to talk about winning hearts and minds of Muslim populations. Iraq, Afghanistan, Pakistan, Sudan, Syria, Palestine, Iran, with so many Muslim countries on the US hit-list, it is unclear how a foreign policy of territorial aggression, invasion, and subversion can generate goodwill that the US seeks in the Muslim world.
Ali Khan is professor of law at Washburn University School of Law in Topeka, Kansas and the author of A Theory of universal Democracy (2006).